text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
The opinion of the court was delivered by
Mason J.:
The plaintiff has filed a petition for a rehearing in which the legal questions passed upon are further discussed. The court, however, remains of its original view.
The plaintiff also contends that the opinion is based upon an erroneous conception of her petition, especially in that the court assumed that the allegations of the pleading showed that a settlement had been effected between the plaintiff and the defendant, by the terms of which she was to accept $2,650 in full of her share of the sum paid by the company. She asserts that this assumption is unfounded, and maintains that, considered as a whole and properly interpreted, her petition shows that an arrangement existed between her and the defendant by which the latter was to receive forty and the former sixty per cent of any amount collected from the railroad company; and that while this arrangement 'was in force she agreed with him that an adjustment might be made with the company such that sixty per cent of the amount paid (which would have to be $4,416.66) would amount to $2,650. If this were the actual situation, and the plaintiff received that sum'($2,650), while she was entitled to $960 more because of the company having paid $6,000, then, of course, she would be entitled to recover from McNeill the difference (or $950), irrespective of any question of fraud. If the petition shows such a state of facts, and the allegations of fraud are ignored, it sets out a good cause of action on contract.
To determine whether it fairly bears this construction requires a consideration of its exact language. The portion of it affecting this question reads as follows:
“That immediately after the acceptance of the said six thousand dollar settlement of said judgment, the said C. A. McNeill caused this plaintiff to be sent for and brought from her then home in .Ross Township to his office in the City of Columbus, Kansas, and the said C. A. McNeill then and there failed, neglected, and refused to notify and inform the plaintiff that a settlement of said case and judgment for the sum of six thousand dollars had been agreed upon, 'but then and there falsely stated and represented to the plaintiff that if she did not accept the sum of two thousand six huindred fifty dollars as her share of said claim and judgment, that there would be an appeal taken in said case from said judgment and that there would be much more expense added and a long time before she’got any money and that she would not get as much as two thousand six hundred fifty dollars in the end and she would have to make another trip to the State of Missouri and take her witnesses and have another trial of said case, and the said C. A. McNeill, then, and at all times, failed, neglected and refused to notify her of said settlement and that by virtue of the terms of the contract of employment with said attorneys she was entitled to the sum of three thousand six hundred dollars, and that there was then due and owing her the sum of three thousand six -hundred dollars, as her share of said compromise séttlement, but by the false statement aforesaid led her to .believe that no settlement had been made but that one could probably be made for such sum and amount that her share, 60 per cent thereof, would amount to two thou sand six hundred fifty dollars, and that if she did not accept said sum of two thousand six hundred fifty dollars another trial would be had and she would have to make another trip to the State of Missouri, for s.uch trial, and take witnesses to Missouri, and the expense would be large, and that she would not then receive as much as two thousand 'six hundred fifty dollars, and relying on such false representations and statements of said C. A. McNeill, and believing them to be true, and not knowing of said settlement for six thousand dollars, the plailntiff informed him that under such conditions she would rather accept two thousand six hundred fifty dollars, and authorized him to make a settlement accordingly.”
The petition does not show that any contractual, relations whatever existed between the plaintiff and defendant until the time of the conference between them referred to. The plaintiff’s agreement providing for a sixty-forty division of the amount collected was made with the other attorneys, and the fact that they employed McNeill to assist them did not make him the plaintiff’s attorney, nor create any contract between .the plaintiff and the defendant. (2 R. C. L. 968, 969.) There seems never to have been any negotiation between the plaintiff and the defendant fixing his fee at forty per cent of the recovery.
The petition alleges that McNeill had effected a settlement with the railroad company before his conference with the defendant. This could not be literally true as a legal proposition, for up to that time the defendant had not authorized him to bind her by an agreement; the allegation should doubtless be construed as meaning that he had ascertained that the company was willing to pay $6,000 for a full release. The allegation is also made that McNeill told her that for various reasons it would be wise for her to agree to an adjustment by which she should receive $2,650 in full of her claim; that she understood from this that the settlement contemplated would be made on such a basis that sixty per cent of the amount paid by the company would amount to $2,650. It is not alleged that McNeill said so, but that by what he did say as to the wisdom of her accepting such sum, she was led to believe this to be the case. The part of the petition relating to the adjustment winds up by the statement that the plaintiff informed McNeill that under the conditions he had stated she would accept that sum and “authorize him to make a settlement accordingly.” This seems clearly to mean, not that she authorized him to settle with the company for such an amount that sixty per cent would be $2,650, but that she authorized him to make an adjustment which would include a settlement with himself, she to receive $2,650 in full satisfaction of her claim. If this interpretation is correct, the pleading shows a settlement between the plaintiff and the defendant, which interposes a bar to her recovery unless it is set aside for fraud, and the action is not one upon contract, except in the sense in which an action for fraud resulting in a benefit to the tort feasor’s estate may always be so regarded. In that case the conclusions stated in the original opinion control and require an affirmance.
An argument is made to the effect that the petition should be interpreted as showing that the plaintiff did not at once learn of the falseness of the representations made to her. If she claimed that she did not learn the real facts until within two years before the commencement of the action, she could have set the matter at rest by so alleging. The case cited in the original opinion (Young v. Whittenhall, 15 Kan. 579) is decisive of the proposition that such an allegation is necessary.
It may be addedj that Mr. 'Justice Porter and the writer of the opinion were inclined to agree with Mr. Justice Marshall, who dissented therefrom, that the three-year statute of limitations applied, but acquiesced in the decision of the majority, the question being one of the construction of a local statute, the meaning of which seems open to doubt, and the conclusion reached by the court not being one likely to produce unjust results.
The petition for a rehearing is denied. | [
-78,
-8,
-32,
-51,
-118,
96,
42,
-104,
121,
-127,
39,
83,
-3,
-17,
4,
123,
-14,
121,
-47,
106,
86,
-93,
7,
99,
-46,
-14,
-45,
-51,
-79,
-34,
-28,
-42,
76,
48,
-118,
-43,
102,
-54,
-59,
86,
-114,
-121,
-88,
-27,
-7,
96,
48,
51,
20,
79,
113,
-98,
-13,
40,
25,
-61,
105,
44,
-65,
57,
-112,
-16,
-82,
13,
127,
0,
1,
36,
-100,
103,
72,
44,
-104,
53,
9,
-56,
115,
-74,
-122,
84,
105,
-71,
9,
-90,
99,
49,
69,
-18,
-68,
-100,
47,
-2,
-115,
-89,
18,
24,
-61,
101,
-74,
-103,
116,
84,
7,
124,
-6,
21,
28,
124,
3,
-85,
-74,
-111,
-99,
124,
-102,
7,
-18,
-111,
16,
100,
-52,
50,
93,
67,
58,
-101,
-97,
-68
]
|
The opinion of the court was delivered by
BURCH, J.:
The action was one by a landlord to recover real estate forcibly detained by a tenant. The plaintiff recovered, and the defendant appeals.
The action was instituted before a justice of the peace. The defendant did not appear, and judgment was entered against him. He appealed to the district court, and gave the usual bond not to commit waste and to pay double the value of the use and occupation of the premises, and costs and damages. The district court instructed the jury to return a verdict for the plaintiif. On appeal to this court the defendant gave a supersedeas bond not to commit waste and to pay the value of the use and occupation of the premises. The judgment of the district court was rendered on December 6, 1916. The appeal was taken on December 23, 1916. The defendant claimed the right to hold possession until March 1, 1917, and on that date vacated the premises.
The only question presented to the district court for determination was whether or not the defendant was entitled to hold possession of the land until March 1, 1917. This court has before it no other subject capable of adjudication. On March 1,, 1917, that subject became one of purely academic interest.. There is no longer any actual controversy between the parties, respecting possession of the land. This court could accomplish no practical result by proceeding to a formal judgment. _In such cases the practice is to dismiss the appeal. (Jenal v. Felber, 77 Kan. 771, 95 Pac. 403; Plumbing Co. v. Journeymen Plumbers, 87 Kan. 671, 125 Pac. 14; Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996; and cases cited in those opinions; Hurd v. Beck, 88 Kan. 11, 45 Pac. 92.)
In the case of Canadian Training Co. v. Ralls et al., 42 Okla. 759, a tenant commenced an action to enjoin its landlord from violating a lease for the year 1912 and from interfering with the plaintiff’s possession during the term of the lease. Judgment was rendered for the defendant, and the plaintiif appealed. The appeal was submitted to the supreme court after the lease had expired. In the case of Blocker v. Howell, 45 Okla. 610, a landlord commenced an action to enjoin a tenant from trespassing on real estate during the year 1914. The defendant claimed possession of the property by virtue of a' lease which expired December 31, 1914. The defendant prevailed, and the plaintiif appealed. The appeal was submitted to the supreme court after the lease had expired. In each case the appeal was dismissed, because only abstract and hypothetical questions, disconnected from the granting of actual relief, were involved.
The defendant says the judgment of the district court will stand as an adjudication, and he will be liable on the bonds he has given. The subject of liability on the bonds given was not, and of course could not be, brought up by the appeal. The bonds are merely incidents to litigation in which the court is now unable to render a judgment capable of enforcement, and consequently give the defendant no continuing interest in the subject matter of the appeal. ,(Horrabin v. City of Iowa City, 130 N. W. 150; Bethany Cong. Church v. Morse, 151 Iowa, 521.) In the case last cited, the plaintiff procured a temporary injunction. The action-was dismissed after proceedings which the plaintiff claimed were wholly irregular, and the plaintiff appealed. After dismissal of the action, suit was brought against the plaintiff on the injunction bond. When the appeal was reached for hearing the controversy had become moot. The syllabus reads as follows:
"The mere fact that a plaintiff has been sued on a temporary injunction bond will not entitle him to appeal from a judgment dismissing the action, simply to have his liability-on the bond determined.” (syl. ¶ 1.)
In the case of The State v. Gas Co., 102 Kan. 712, 172 Pac. 713, the sole purpose of the appeal was to correct an alleged error which it was' claimed would result in establishing a standard of liability in collateral litigation. Because this court could’ make no order which would be of any effect, the appeal was dismissed.
The appeal is dismissed. | [
-14,
-2,
-43,
14,
-118,
96,
42,
-40,
64,
-79,
48,
87,
-87,
-38,
0,
41,
82,
125,
117,
121,
77,
-77,
19,
-63,
-42,
-13,
83,
-43,
-71,
79,
-12,
86,
72,
49,
-62,
-105,
-122,
-62,
-43,
-36,
-114,
-123,
40,
76,
-59,
0,
60,
105,
52,
10,
113,
31,
-13,
42,
25,
-61,
73,
60,
-53,
61,
-16,
-15,
-86,
5,
127,
22,
1,
5,
-100,
-59,
104,
12,
-100,
53,
1,
-24,
115,
38,
-106,
116,
5,
-101,
44,
38,
98,
33,
21,
-29,
-88,
-104,
14,
-71,
-115,
-90,
-112,
88,
2,
64,
-76,
-103,
125,
54,
7,
126,
-25,
-107,
95,
109,
7,
-49,
-42,
-77,
15,
56,
-110,
25,
-37,
-93,
33,
113,
-115,
-122,
94,
67,
82,
-101,
-113,
-40
]
|
The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment in favor of the defendants on a demurrer to the plaintiff’s petition. The petition alleges that on July 7, 1913, the defendants entered into a contract with the Iowa Mausoleum, Company for the construction of a mausoleum at Chanute for $19,500, to be paid in installments; that on or about October 1, 1913, the company became insolvent, and was unable to, proceed with the construction of the mausoleum; that on November 22, 1913, the defendants entered into a supplemental agreement with the company, which supplemental agreement contained the following provisions:
“1st. The Iowa Mausoleum Company shall furnish and deliver F. O. B. cars Chanute, Kansas, at the proper time so that the construction work may not be delayed on said mausoleum, all the marble necessary to complete said mausoleum according to the plans and speeificatipns, and furnish the second party satisfactory evidences of payment of said marble.
“2nd. In consideration of the performance of Paragraph 1, the Chanute Mausoleum Company hereby agrees to supervise and complete said mausoleum, to pay for all materials and labor, not already paid for, upon the O. K. or approval of C. W. Lawrence, architect in charge, not exceeding, in all payments, including those that have been made and to be made hereunder, the contract price named in the within contract.
“3rd. All payments made by virtue hereof by second party, shall be credited upon the contract price in the within contract, and in the event, after the completion of said mausoleum, the second party has not paid out, all told on the within contract a sum equal to said contract price, such difference or balance, shall be paid on said marble bill.”
The petition further alleges that the plaintiff, on the order of the mausoleum company, shipped to the company three cars of hollow blocks to be used in the construction of the mausoleum; that these cars were shipped, one on October 25, 1913, one on November 7,1913, and one on November 28,1913; that the defendants paid the freight on the three cars of blocks, took possession thereof, and used the same in the construction of the mausoleum; and that the plaintiff had no notice or knowledge of the failure of the mausoleum company, or of the fact that the defendants took the blocks and used them. Performance of the supplemental contract by the mausoleum company is not alleged in the petition.
The defendants’ argument is, that because the petition does not allege performance of the supplemental agreement by the mausoleum company, the petition does not state a cause of action. The defendants’ argument is not sound. The plaintiff performed its part of its contract; that is, it shipped and furnished the blocks to be used in the construction of the mausoleum. The blocks were used by the defendants. They should pay the contract price, $19,500, to those who furnished the material used and performed the labor in the construction of the mausoleum. But after $19,500 has been paid, the liability of the defendants ceases so far as the plaintiff is concerned. If the defendants have paid the full contract price for the completion of the mausoleum, the answer should so state. It follows that the petition states a cause of action, and that the demurrer should have been overruled.
The judgment is reversed with directions to overrule the demurrer and proceed with the cause. | [
-12,
104,
-12,
60,
26,
-62,
42,
-102,
113,
-96,
37,
87,
-23,
90,
20,
123,
-9,
61,
80,
106,
118,
-77,
23,
-8,
-110,
-13,
-7,
-59,
-15,
121,
-27,
-41,
76,
32,
74,
-123,
-26,
-62,
69,
-36,
-114,
-91,
8,
-31,
-7,
32,
52,
59,
54,
7,
-15,
-98,
-77,
42,
28,
71,
104,
60,
-5,
-87,
64,
-112,
-86,
-121,
-1,
21,
19,
0,
-102,
-121,
-40,
30,
-104,
-111,
0,
-20,
115,
-80,
-122,
116,
107,
-7,
8,
102,
103,
17,
17,
-17,
-40,
-104,
14,
-1,
-99,
-89,
-106,
24,
-86,
69,
-66,
29,
61,
20,
-89,
122,
-1,
21,
31,
45,
3,
-53,
-14,
-79,
-81,
112,
-107,
19,
-21,
-125,
50,
112,
-51,
48,
92,
-57,
83,
-69,
-121,
-72
]
|
The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing counsel for the plaintiff criticises the citation by this court of Caspersz on Estoppel as follows:
“The»author of this work was a barrister at law, advocate of the high court, Calcutta, and the author does not cite one single modern American authority to sustain the principle of law quoted in the opinion in this case. We do not believe this court prefers to follow the law of India, rather than the law announced by the several states as well as by American text writers.”
This criticism shows fine loyalty to the home team, but it does not meet the question whether or not this rank- outsider gave a fair answer to the question propounded in the former opinion: “Why is a person estopped to deny a recital in a contract ?”
Citation of a text or a decision, or a thousand decisions, that a man is estopped to deny a recital in his contract, amounts to nothing; and probably that number of decisions may be found which go no further into the subject. A principle must be discovered and stated on which estoppel is justified, and when that is done, decisions are sound or unsound according to whether or not they1 correctly apply the principle.
In the petition for a rehearing it is said:
“This court in the opinion intimates that the rule contended for by the appellee is an old rule, and that the modern Hrule is different. In 10 Ruling Case Law, 683, the author said, ‘A grantee is estopped, however, in an action on a covenant of seizin in his deed, from setting up his own title which he knew he possessed at the time the deed was made.’ This is an American authority. The book was published in 1915, four years after the contract in controversy in this case was entered into.”
The text cited is based on the case of Eames v. Armstrong, 146 N. C. 1. The decision itself contains no discussion of the doctrine of estoppel which is of any value, but appended to the report of the case’ in 125 Am. St. Rep. 436, 443, is an annotation which discusses the nature of the covenant of seizin, and the ground of the “estoppel” will be found in the character of the assurance afforded by that kind of a covenant, and not in the fact that the covenant was contained in a written instrument. The petition for a rehearing also cites 16 Cyc. 721 as follows: “A party to a written contract is ordinarily estopped to deny the truth of reditals therein.” Note the word “ordinarily,” which indicates that a party is not always estopped to deny recitals in his contract. The paragraph in. which the quotation is found goes on to tell of instances in which the general rule does not hold, and' cases are cited in which -the general rule was not applied. How does it come about that some writings estop, and others do not?’ The plaintiff's brief and the petition for a rehearing entirely ignore that subject.
In discussing the parol-evidence rule Professor Wigmore makes the following observations relating to the efficacy of a writing per se, which apply quite as well to estoppel by writing:
“The exhibition of a writing is often made as though it possessed some intrinsic and indefinite power of dominating the situation and quelling further dispute. But it needs rather to be remembered that a writing is, of itself alone considered, nothing — simply nothing. It must take life and efficacy from other facts, to which it owes its birth; and these facts, as its creator, have as great a right to be known and considered as their creature has. . . . There is no magic in the writing itself. It hangs in mid air, incapable of self-support, until some foundation of other facts has been built for it.” (4 Wigmore on Evidence, § 2400, p. 3370.)
The section of the same work drawing the distinction between admissions as evidence, and estoppel, warranties, and contracts (2 Wigmore on Evidence, § 1056), shows clearly that the learned author had a conception of estoppel precisely like that stated by Caspersz; and Bigelow, one of our own truly American writers, actually derived and stated, in all essential-respects, the true foundation for estoppel by writing, just as Caspersz did, even to the extent of citing the case of Carpenter v. Butter, 8 M. & W. 209. (Bigelow on Estoppel, 5th ed., p. 331 and note.) The text of Caspersz is based on the English decisions, and estoppel by writing in England is not very different from estoppel by writing in America. The author, however, was perfectly familiar with and cited and quoted from American law writers like Thayer, Bigelow and Hermann, and if the light has penetrated as far as India, there seems to be no reason why American courts and lawyers may not read by it.
The court regards the principles stated in the former opinion as sound, and believes they were correctly applied, and consequently the petition for a rehearing is denied. | [
-80,
104,
-43,
63,
-86,
64,
42,
-40,
121,
-115,
38,
-13,
-83,
-43,
4,
107,
-7,
13,
116,
98,
94,
-73,
30,
-127,
-42,
-45,
115,
-44,
-79,
-50,
-9,
94,
76,
32,
-62,
-43,
-26,
91,
-39,
16,
-82,
6,
-120,
-63,
-39,
80,
48,
81,
17,
13,
5,
-33,
-29,
42,
8,
-37,
-20,
60,
123,
52,
-16,
-8,
-98,
7,
125,
32,
-78,
49,
-40,
7,
88,
44,
8,
25,
9,
-24,
117,
-92,
-106,
85,
11,
57,
-103,
54,
107,
32,
81,
-30,
-98,
-67,
63,
90,
13,
-90,
-44,
120,
66,
97,
-73,
-103,
112,
84,
-89,
-2,
-30,
29,
-97,
-91,
15,
-117,
-42,
-69,
15,
126,
-108,
0,
-9,
-61,
16,
80,
-62,
48,
76,
-63,
27,
-109,
-66,
-100
]
|
Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Marcus B. Potter, Jr., whose last registration address with the Clerk of the Appellate Courts of Kansas is Kansas City, Kansas. Potter was admitted to the practice of law in the state of Kansas in July 1978.
The alleged misconduct arises from four complaints, DA9003, DA9016, DA 9086, and DA9197, which regard the respondent’s representation of clients Jamie Trzcinsld, Michael Barnes, Shara Crawford, and Larry Caldwell, respectively.
On September 2, 2004, the Disciplinary Administrator filed a formal complaint. The respondent answered admitting all of the factual allegations of all counts. A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on December 7, 2004. At the hearing, the respondent stipulated to violations of KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 1.15 (2004 Kan. Ct. R. Annot. 414) (safekeeping property); and Supreme Court Rule 207 (2004 Kan. Ct. R. Annot. 261), as to counts I, II, and III; and KRPC 1.3 (diligence); KRPC 1.4 (communication); and Supreme Court Rule 207, as to count IV. The Disciplinary Administrator moved to amend the formal complaint to delete the allegations of additional violations. The panel later prepared a report containing its findings of fact, conclusions of law, and recommendations for discipline. The respondent filed no exceptions to the report. The underlying facts found by the panel concerning these violations are summarized as follows:
FINDINGS OF FACT
Complaint of Jamie Trzcinski (DA9003)
In June 2002, Jamie Trzcinski retained the respondent to file a bankruptcy in her behalf. Ms. Trzcinski paid him a fee of $400. She agreed to pay the respondent an additional $350 in installments until the total fee was paid. The respondent agreed to accept the additional payment in installments as long as the total amount was received before the bankruptcy was discharged. Ms. Trzcinski provided all the necessary paperwork to file the bankruptcy to the respondent, including copies of bills, original tax returns, and other papers.
After a number of weeks passed without hearing from the respondent, Ms. Trzcinski began calling him. The respondent failed to return her telephone calls.
On November 12, 2002, after still not hearing from the respondent, Ms. Trzcinski faxed the respondent a note. The respondent did not respond to her note.
In early 2003, Ms. Trzcinski again wrote to the respondent. This time, however, she demanded that he refund the funds paid and return the paperwork provided. The respondent did not respond to Ms. Trzcinsld’s letter, did not return the unearned fee, and did not return the paperwork to her.
After waiting 15 months for the respondent to file the bankruptcy, on September 2, 2003, Ms. Trzcinski filed a complaint with the Disciplinary Administrator’s office. On September 10, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
John M. Duma of the Wyandotte County Ethics and Grievance Committee was assigned to investigate Ms. Trzcinski’s complaint. On September 15, 2003, Mr. Duma wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
On October 23, 2003, Mr. Duma met with the respondent. Mr. Duma asked the respondent why he had not completed the bankruptcy. The respondent said that he had “a severe case of procrastination.” At that time, Mr. Duma requested that the respondent forward to Mr. Duma a copy of his Trzcinski file.
On November 6, 2003, Mr. Duma sent the respondent a letter reminding him to provide a copy of Ms. Trzcinski’s file. The respondent did not provide Mr. Duma a copy of the file nor did he return Ms. Trzcinski’s original paperwork to her.
Complaint of Michael Barnes (DA9016)
In January, 1999, the respondent represented Michael Barnes in an action for divorce. During the representation, the respondent and Mr. Barnes discussed that a Qualified Domestic Relations Order would need to be completed to split his retirement with his ex-wife. After a period of time, Mr. Barnes’ ex-wife contacted the respondent requesting that the Qualified Domestic Relations Order be completed. The respondent contacted Mr. Barnes and informed him that before the Qualified Domestic Relations Order could be completed, Mr. Barnes would need to pay an additional $200. On September 18, 2002, Mr. Barnes sent the respondent a check for $200 for that purpose.
Even though the respondent had not yet earned the fee, he deposited the check into his operating account.
Mr. Barnes subsequently called the respondent on approximately 20 occasions. Each time he left a message asking about the status of the Qualified Domestic Relations Order. The respondent did not return any of the calls.
On August 28, 2003, Mr. Barnes’ present wife, Janice Barnes, called the respondent and left a message on his answering machine directing the respondent to refund the $200. The respondent did not return the call.
On September 13, 2003, after waiting 12 months for the order, Mr. Barnes filed a complaint with the Disciplinary Administrator’s office. On September 18, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
Mr. Duma was assigned to also investigate Mr. Barnes’ complaint. On September 22, 2003, he wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
On October 23, 2003, Mr. Duma met with the respondent. The respondent told Mr. Duma that he had received Mr. Barnes’ money but that he had not completed the work because of “a severe case of procrastination.” Mr. Duma then requested that the respondent forward a copy of the Barnes file to him.
On November 6, 2003, Mr. Duma sent the respondent a letter reminding him to provide a copy of Mr. Barnes’ file. The respondent did not provide Mr. Duma with a copy.
Complaint of Shara Crawford (DA9086)
On June 11, 2003, Shara Crawford retained the respondent to file a Chapter 7 bankruptcy case in her behalf. Ms. Crawford paid him $300 and provided a file containing all of her financial information. The respondent instructed Ms. Crawford to notify her creditors of her intention and provide them with the respondent’s name and telephone number. She followed the respondent’s advice.
After her initial meeting with the respondent, Ms. Crawford called him on numerous occasions and left messages. The respondent did not return the calls.
Ms. Crawford’s creditors eventually notified her that the respondent was not responding to their telephone calls; they threatened to turn the bills over to collection agencies.
On November 5, 2003, Ms. Crawford wrote to the respondent and requested that he return the unearned fee and her documentation. The respondent did not respond.
On December 10, 2003, Ms. Crawford filed a complaint with the Disciplinary Administrator’s office. On December 24, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
Mr. Duma was assigned to also investigate Ms. Crawford’s complaint. On January 16, 2003, he wrote to the respondent and re minded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
Complaint of Larry C. Caldwell (DA9197)
On September 5, 2003, Larry C. Caldwell retained the respondent to prepare a deed to transfer the ownership of real property located in Kansas City, Kansas. Mr. Caldwell paid the respondent $500 for the service.
Mr. Caldwell later made several attempts to contact the respondent by telephone. The respondent failed to return the calls.
On April 5, 2004, Mr. Caldwell wrote asking the respondent to contact him regarding the representation as soon as possible. The respondent failed to respond.
Mr. Caldwell forwarded a copy of his April 5, 2004, letter to the Disciplinary Administrator’s office as a letter of complaint.
On April 12, 2004, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
Mr. Duma was assigned to also investigate Mr. Caldwell’s complaint. On April 19, 2004, he wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
In July, 2004, the respondent finally contacted Mr. Caldwell. Thereafter, he filed an action in Wyandotte County District Court in behalf of Mr. Caldwell. The action remains pending.
PANEL’S CONCLUSIONS OF LAW
Based upon the above uncontested facts, the panel concluded, as a matter of law, that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, and Supreme Court Rule 207(b), as detailed below.
KRPC 1.3
Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the respondent failed to provide diligent representation to Ms. Trzcinski, Mr. Bames, Ms. Crawford, and Mr. Caldwell. Specifically, lie failed to file bankruptcy cases for Ms. Trzcinski and Ms. Crawford. He failed to prepare the Qualified Domestic Relations Order for Mr. Bames, and failed to prepare appropriate documents to transfer the property in behalf of Mr. Caldwell. Because the respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concluded that he violated KRPC 1.3.
KRPC 1.4
KRPC 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” (2004 Kan. Ct. R. An-not. 367.) In this case, the respondent violated KRPC 1.4(a) when he failed to comply with reasonable requests for information from Ms. Trzcinski, Mr. Bames, Ms. Crawford, and Mr. Caldwell, and when he failed to respond to numerous telephone messages and letters. Accordingly, the hearing panel concluded that he violated KRPC 1.4(a).
KRPC 1.15
Attorneys must safeguard client’s property. KRPC 1.15(a) prohibits attorneys from commingling their funds with the funds of their clients, as follows:
“A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” (2004 Kan. Ct. R. Annot. 414.)
The respondent violated KRPC 1.15(a) when he deposited the unearned fees paid by Mr. Bames into his operating account rather than into his trust account. Accordingly, the hearing panel concluded that he violated KRPC 1.15(a).
Lawyers must return unearned fees and client property upon request. In that regard, KRPC 1.15(b) provides:
“Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” (Emphasis added.) (2004 Kan. Ct. R. Annot. 414.)
The respondent violated KRPC 1.15(b) when he failed to return Ms. Trzcinski’s unearned fee and financial documentation, failed to return Mr. Barnes’ unearned fee, and failed to return Ms. Crawford’s unearned fee and financial documentation. The hearing panel concluded that he violated KRPC 1.15(b).
Supreme Court Rule 207(b)
Supreme Court Rule 207(b) provides as follows:
“It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.” (2004 Kan. Ct. R. Annot. 261.)
In this case, the respondent violated Supreme Court Rule 207(b) when he failed to provide a written response to the initial complaints filed by Ms. Trzcinski, Mr. Barnes, Ms. Crawford, and Mr. Caldwell. Accordingly, the hearing panel concluded that he violated Supreme Court Rule 207(b).
PANEL’S RECOMMENDATION
The hearing panel next 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.
On the subjects of Duty Violated and Mental State, the respondent knowingly violated his duty to his clients to provide diligent representation and adequate communication. He also violated his duty to his clients to safeguard their property and timely return unearned fees and personal documentation. Finally, he violated his duty to the legal profession to cooperate in disciplinary investigations.
On the subject of Injury, as a result of the respondent’s misconduct, he caused actual and potential injury to each of his clients. Ms. Trzcinski waited over 15 months for him to file a bankruptcy action on her behalf; he never filed the action. Mr. Barnes waited 1 year for him to prepare the Qualified Domestic Relations Order; he never prepared the order. Ms. Crawford waited 6 months for the respondent to file a bankruptcy action on her behalf. During the time she was waiting for him to act, creditors continued to contact her regarding the outstanding financial obligations. Finally, it took the respondent 10 months to make any progress on Mr. Caldwell’s request to have the ownership of real property transferred. The delays caused by the respondent injured his clients. Additionally, he injured his clients when he failed to timely return unearned fees and personal documentation.
On the subject of Aggravating Factors, several were present. In regard to Prior Disciplinary Offenses, the respondent has been previously disciplined in eight cases.
On September 29, 1988, the Disciplinary Administrator informally admonished him for having violated MRPC 1.4 when he failed to communicate with a client in an estate matter, complaint B4392.
In 1991, following a formal hearing before a hearing panel, the Disciplinary Administrator informally admonished the respondent for having violated DR 6-101(A)(3), MRPC 1.3, and MRPC 1.4(a) in an estate matter, complaint B4536.
On January 23, 1998, the Kansas Supreme Court censured the respondent for having violated MRPC 1.1, MRPC 1.2(a), MRPC 1.3, MRPC 1.4(a) and (b), MRPC 1.5(d), MRPC 8.1(a), MRPC 8.4(d) and (g), and Supreme Court Rule 207 in a personal injury case. The court published the censure at In re Potter, 263 Kan. 766, 952 P.2d 936 (1998).
On July 28, 1998, the Disciplinary Administrator informally admonished the respondent in four separate cases. In A6467, the Disciplinary Administrator informally admonished him for having violated KRPC 1.1, KRPC 1.3 KRPC 1.4, KRPC 1.16,and KRPC 8.4 in an estate matter. In A6566, the Disciplinary Administrator informally admonished him for having violated KRPC 1.1, KRPC 1.4, and KRPC 8.4 in a divorce case. In A6642 and A6643, the Disciplinary Administrator informally admonished him for having violated Supreme Court Rule 207 in a divorce case. In A7002, the Disciplinary Administrator informally admonished him for having violated KRPC 1.3, KRPC 1.4, and Supreme Court Rule 207 in a child support and visitation case.
Finally, on February 20, 2003, the Disciplinary Administrator informally admonished the respondent for having violated KRPC 1.3 in a paternity action, complaint DA8481.
Additionally, regarding Prior Disciplinary Offenses, included in the instant case are four complaints. The complaints involve similar misconduct. Moreover, some of the previous eight cases included violations of the rules violated in this case. As a result, the respondent has clearly engaged in a pattern of misconduct.
Regarding Multiple Offenses, the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, and Supreme Court Rule R. 207. As such, he committed multiple offenses.
Regarding the Vulnerability of Victim, each of the respondent’s clients who complained in this case were vulnerable to his misconduct. Ms. Trzcinski and Ms. Crawford were particularly vulnerable to his misconduct as they were already in serious financial trouble, i.e., seeking bankruptcy.
Regarding the aggravating factor of Substantial Experience in the Practice of Law, the Kansas Supreme Court admitted the respondent to practice law in 1978. At the time he engaged in misconduct, he had been practicing law for a period of 24 years. Accordingly, the hearing panel concluded that he had substantial experience in the practice of law at the time he engaged in the misconduct.
Regarding Indifference to Making Restitution, even though the respondent has wrongfully retained the unearned fees from three of his clients, he failed to malee a timely effort to return the unearned fees.
Some Mitigating Circumstances were present. Regarding the Absence of a Dishonest or Selfish Motive, dishonesty and selfish ness were not motivating factors in this case. Regarding Remorse, at the hearing on the formal complaint, the respondent expressed genuine remorse.
In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following Standards: “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 injuiy or potential injuiy to a client.” Standard 4.42. “Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.” Standard 4.43. “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.” Standard 7.2. “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.” Standard 8.2.
The Disciplinary Administrator asked that the hearing panel recommend to the Kansas Supreme Court that the respondent be suspended from the practice of law for a period of 2 years. The Disciplinary Administrator further recommended that prior to allowing the respondent to return to the practice of law, he undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312.).
The respondent asked the hearing panel that he be placed on probation. The plan of probation he submitted was the informal monitoring agreement developed by the Kansas Lawyer Assistance Program, with several exceptions, i.e., that the respondent was not involved in the use of alcohol or mind altering drugs. None of the blanks in the agreement were completed. Nor did the respondent identify a monitoring attorney. Counsel for the respondent urged the panel to take the proposal and add to it whatever they felt would be appropriate given the circumstances of this case.
The panel determined that in order to recommend that a respondent be placed on probation, it must make specific findings. In that regard, it acknowledged that Supreme Court Rule 211(g) (2004 Kan. Ct. R. Annot. 277) provides, in pertinent part, as follows:
“(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;
(hi) at the hearing on the Formal Complaint, the Respondent presents evidence that the case involves unique circumstances (unique circumstances are circumstances from which it could be inferred that the Respondent’s misconduct was a one time response to adversity and that it would be highly unlikely that the Respondent would repeat the mistake);
(iv) the misconduct can be corrected by probation; and
(v) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.”
The hearing panel carefully reviewed the respondent’s plan of probation. It concluded that the plan was not workable, substantial, or detailed. While counsel for the respondent suggested that the panel add terms to the plan, the panel concluded that was not its responsibility. The panel also found that there were no unique circumstances present. Finally, it concluded that placing the respondent on probation was not in the best interests of the legal profession or the citizens of the state of Kansas. In short, the hearing panel concluded that probation was not appropriate.
In reaching its recommendation, the hearing panel carefully weighed the findings of fact, conclusions of law, the Standards listed above, and the recommendations of the parties. The panel found that the respondent’s extensive disciplinary history was of particular concern. The panel concluded that to date, none of the discipline imposed apparently had impressed the respondent to the degree necessary to change his behavior. Accordingly, the panel unanimously recommended that the respondent be suspended from the practice of law in the state of Kansas for a period of 18 months. It further recommended that the respondent undergo a reinstatement hearing, pursuant to Supreme Court Rule 219, prior to being allowed to resume the practice of law. Finally, the panel concluded that costs should be assessed against the respondent in an amount to be certified by the office of the Disciplinary Administrator.
DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275); In re Rathbum, 275 Kan. 920, 929, 69 P.3d 537 (2003). A hearing panel’s report is deemed admitted under Supreme Court Rule 212(c) and (d) (2004 Kan. Ct. R. Annot. 285) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003). In the case at hand, since respondent filed no exceptions to the panel’s report, we conclude that the panel’s findings of fact are supported by clear and convincing evidence and that the facts established support the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions, but not its recommended discipline.
The panel recommended an 18-month suspension, and the Disciplinary Administrator recommended a 2-year suspension. Both recommended reinstatement only upon a reinstatement hearing. We conclude that because of respondent’s numerous disciplinary violations and the recurring pattern of those violations — which have caused injury to clients, the public, the legal system, and the profession — indefinite suspension is warranted. The level of discipline should impress upon the respondent the necessity of changing his behavior.
It Is Therefore Ordered that Marcus B. Potter, Jr., be and he is hereby indefinitely suspended from the practice of law in the state of Kansas effective as of the date of this opinion.
It Is Further Ordered that Marcus B. Potter, Jr., shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301), and in the event the respondent should seek reinstatement, he shall comply with Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Lockett, J., Retired, assigned. | [
-80,
-24,
-3,
-35,
-119,
97,
58,
42,
121,
-45,
119,
83,
-19,
-18,
0,
107,
-15,
9,
80,
122,
69,
-77,
127,
-55,
-26,
-13,
-72,
-43,
-70,
79,
-11,
-99,
73,
-80,
-78,
-107,
-122,
-118,
-59,
28,
-54,
3,
9,
-12,
-39,
-127,
48,
-25,
23,
13,
49,
46,
51,
42,
49,
107,
40,
120,
-1,
-19,
-48,
-111,
-119,
21,
106,
19,
33,
-124,
28,
-113,
88,
43,
-118,
56,
1,
-24,
51,
-74,
-126,
116,
111,
-103,
9,
36,
98,
35,
17,
-25,
-84,
-120,
14,
49,
-99,
-121,
-71,
89,
83,
45,
-106,
-100,
116,
22,
7,
-4,
-18,
5,
57,
-20,
11,
-117,
-36,
-111,
30,
101,
-52,
-101,
-17,
-122,
16,
65,
-114,
98,
93,
-121,
56,
-101,
-70,
-73
]
|
The opinion of the court was delivered by
Nuss, J.:
Debra Back-Wenzel sued Louis Williams for personal injuries arising out of a car accident. Unbeknownst to her, Williams had died before suit was filed. After she learned of his death, she sought to substitute his estate’s special administrator as the defendant. The district court granted the defendant’s motion to dismiss without prejudice due to lack of subject matter jurisdiction. The Court of Appeals reversed in Back-Wenzel v. Williams, 32 Kan. App. 2d 632, 87 P.3d 318 (2004). This court granted Williams’ petition for review under K.S.A. 20-3018(b).
The sole issue on appeal is whether the district court erred in dismissing the case, i.e., in refusing to allow the special administrator to serve as the defendant. We hold the district court was correct. Accordingly, we reverse the Court of Appeals and affirm the district court’s dismissal.
FACTS
The facts are not in dispute. On December 15, 2000, Debra Back-Wenzel was injured in a car accident involving Louis Wil liams. Williams died on July 4, 2001, from conditions unrelated to tire accident. On December 12, 2002, 3 days before the statute of hmitations expired, Back-Wenzel filed a petition against Williams alleging his negligence in the accident. The district court found that service was obtained on the defendant by residential service on December 17, 2002.
Approximately 3 months later, on March 13, 2003, Williams’ insurance company notified Back-Wenzel that Williams had died. The district court found that the 90 days to obtain service had expired, but ordered an extension to April 17.
On April 1, Back-Wenzel filed a petition in the probate division of the district court seeking appointment of a special administrator of Williams’ estate to accept service on his behalf. A special administrator was appointed at that time and letters of special administration issued. That same day Back-Wenzel also filed a suggestion of death of defendant which additionally informed the district court that Michael X. Llamas had been appointed special administrator of the Williams estate. She also filed a motion with the district court to substitute Michael X. Llamas as special administrator, for defendant Williams.
On April 8, Williams’ attorneys filed a motion to dismiss, claiming that the court lacked subject matter and personal jurisdiction and that Back-Wenzel failed to state a claim upon which relief could be granted because there was no proper defendant. BackWenzel filed no response. On April 18, 1 day after the extension to obtain service expired, the district court denied Back-Wenzel’s motion to substitute and granted the defendant’s motion to dismiss without prejudice. It essentially held that Williams’ pre-suit death precluded subject matter jurisdiction.
Back-Wenzel appealed, and the Court of Appeals reversed.
ANALYSIS
Issue: Did the district court err in dismissing the case, i.e., in refusing to allow the special administrator to serve as the defendant?
The district court dismissed the case for lack of subject matter jurisdiction. Whether subject matter jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 205, 50 P.3d 66 (2002).
In support of Back-Wenzel’s argument that the district court wrongly dismissed her lawsuit, she points to the fact that she had no knowledge of Williams’ death until after suit had been filed and that she immediately followed procedural requirements for bringing a claim against a deceased tortfeasor. Back-Wenzel claims that to not allow her to substitute the defendant places form over substance and would be unjust because of her inadvertent technical mistake. As a result, she advances the Court of Appeals’ decision and rationale.
Williams’ attorney, however, argues that the district court lacked subject matter jurisdiction over a deceased party. Consequently, he alleges there was never a proper defendant, and there was no controversy to be decided. As a result, he relies upon the district court’s order of dismissal and rationale.
Although our review of the issue is de novo, we begin our analysis by examining the approaches taken by both lower courts.
The district court exclusively relied upon Moore v. Luther, 29 Kan. App. 2d 1004, 35 P.3d 277 (2001), which it held controlling and indistinguishable from the instant case. There, plaintiffs filed suit for personal injuries and physical damage arising out of a car accident involving Luther. Suit was brought 5 days before the statute of limitations deadline, but more than 18 months after Luther had died. The plaintiffs learned of Luther’s death 119 days after the lawsuit was filed. They then filed a motion under K.S.A. 60-225 to substitute Luther’s widow, who had previously been the executor of Luther’s then-closed estate, as the defendant. The district court denied the motion and eventually dismissed the action with prejudice, finding that the claims were barred by the 2-year statute of limitations.
The Moore court stated that the issue before it was a matter of first impression in Kansas: “Whether a litigant can use this statute [K.S.A. 60-225] to save a cause of action filed against a decedent.” 29 Kan. App. 2d at 1008.
K.S.A. 60-225 states in relevant part at (a)(1):
“If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution maybe made by any party or by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.” (Emphasis added.)
The Moore court observed that because the Kansas Rules of Civil Procedure are patterned after the federal rules, Kansas appellate courts often turn to federal case law for persuasive guidance. While it acknowledged that the federal counterpart to K.S.A. 60-225 — Fed. R. Civ. Proc. 25 — is not identical, “the differences between the rules do not affect the persuasiveness of federal case law on this issue.” 29 Kan. App. 2d at 1008. Accordingly, it cited with approval 7C Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1951 (1986): “The rule presupposes that substitution is for someone who was a party to a pending action. Substitution is not possible if one who was named as a party in fact died before the commencement of the action.” (Emphasis added.) 29 Kan. App. 2d at 1009.
The Moore court further observed that “the federal courts have uniformly followed this interpretation” and “other states having statutes or rules similar to the federal rule have held likewise.” 29 Kan. App. 2d at 1009. Based upon these reasons, the Court of Appeals in Moore stated:
“We find that if a named defendant is dead at the time of the filing of the cause of action, the trial court is without jurisdiction to proceed and the action must be dismissed without prejudice. Substitution of a special administrator or other personal representative under K.S.A. 60-225(a)(1) is inapplicable where the defendant dies prior to commencement of the action. The district court properly dismissed plaintiffs’ case and properly denied their motion to alter or amend [the judgment]. However, the matter is remanded with instructions to dismiss for lack of jurisdiction, without prejudice, pursuant to K.S.A. 2000 Supp. 60-241(a)(1).” (Emphasis added.) 29 Kan. App. 2d at 1010.
The Court of Appeals in the instant case agreed with the Moore court: “The Moore court held K.S.A. 60-225 is not applicable to permit substitution of a special administrator if a named defendant is dead at the time suit is filed. 29 Kan. App. 2d 1004, Syl. ¶ 4. We agree.” 32 Kan. App. 2d at 633.
The Court of Appeals then parted ways with the Moore court:
“The [Moore] court also held that without a party defendant, the district court lacked subject matter jurisdiction over the case. 29 Kan. App. 2d 1004, Syl. ¶ 1. We do not agree with this holding if it is read to preclude a district court from exercising its judicial power as authorized by law.
“ ‘Subject matter jurisdiction is the authority of the court to hear and decide a particular action.’ [Citation omitted.] We need no citation of authority to conclude a district court in tort litigation has subject matter jurisdiction to hear and decide whether substitution of a party defendant is appropriate. The issue is: Under what authority and circumstances?” 32 Kan. App. 2d at 633.
The Court of Appeals tiren proceeded under K.S.A. 2003 Supp. 60-102 (provisions of the Kansas Code of Civil Procedure are to be liberally construed to secure justice) to construe Back-Wenzel’s motion as one to amend her pleadings under K.S.A. 2003 Supp. 60-215. With this construction in hand, the court then applied case law where defendants had died before suit was filed and motions to amend pleadings under 60-215 had been granted to allow estate administrators to replace the decedents. See Hinds v. Estate of Huston, 31 Kan. App. 2d 478, 66 P.3d 925 (2003); Yoh v. Hoffman, 29 Kan. App. 2d 312, 27 P.3d 927, rev. denied 272 Kan. 1423 (2001).
The Court of Appeals then used this “reasonable interpretation,” and the 60-215 case law, to reverse and remand for the district court to determine “whether, under the facts of the case, leave should be granted to the plaintiff to amend her petition to substitute the special administrator as party defendant and, if so, whether the amendment will relate back to the filing date of the original petition. See K.S.A. 2003 Supp. 60-215. These are decisions for the district court to determine.” 32 Kan. App. 2d at 637.
The primary problem with the Court of Appeals’ approach is that we are not dealing with a motion to amend pleadings under K.S.A. 2003 Supp. 60-215. The court erred in its expansive characterization, as clearly demonstrated by Back-Wenzel’s motion, the defendant’s resultant pleadings, and the trial court’s understanding, and treatment, of the parties’ pleadings.
First, Back-Wenzel’s motion reads in relevant part:
“MOTION TO SUBSTITUTE PARTY DEFENDANT
“Comes now the Plaintiff and respectfully moves the above-entitled Court for an Order substituting Michael X. Llamas as Special Administrator of the Estate of Louis Williams, Deceased, for the defendant, Louis Williams, Deceased.” (Emphasis added.)
As Williams’ attorney correctly observes, the title of the motion not only matches the language of K.S.A. 60-225(a)(1), but substitution pursuant to the statute is also the procedural step which necessarily follows the filing of a suggestion of death such as BackWenzel caused to be filed here. See K.S.A. 60-225(a)(1) (“Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”) (Emphasis added.); Long v. Riggs, 5 Kan. App. 2d 416, 417, 617 P.2d 1270 (1980).
Second, Williams’ attorney’s motion to dismiss attached a “Memorandum in Support of Defendant’s Motion to Dismiss and in Opposition to Plaintiff's Motion to Substitute.” (Emphasis added.) His argument relies almost exclusively upon Moore, and concludes by stating: “The court of appeals’ summary of its holding in Moore is fully applicable to the present case and conclusively indicates why dismissal is compelled:
“ “We find that if a named defendant is dead at the time of the filing of the cause of action, the trial court is without jurisdiction to proceed and the action must be dismissed without prejudice. Substitution of a special administrator or other personal representative under K.S.A. 60-225(a)(1) is inapplicable where the defendant dies prior to commencement of the action. ’ ” (Emphasis added.) 29 Kan. App. 2d at 1010.
As mentioned, Back-Wenzel did not file a response to the motion to dismiss, thus electing to forego her opportunity to present a written correction of defendant’s interpretation of her motion.
Finally, the district court’s order of April 18, 2003, dismissing the action states in relevant part:
“NOW ON THIS 18th day of April, 2003, comes on for hearing plaintiffs motion to substitute defendant and defendant’s motion to dismiss. . . .
....
“1. At the time this suit was filed on December 12, 2002, the purported defendant, Louis Williams, was deceased. Pursuant to the decision in Moore v. Luther, 29 Kan. App. 2d 1004, 35 P.3d 277 (2001), the suit is void ab initio because a decedent has no capacity to be sued. Because there is no proper party defendant, this Court lacks subject matter jurisdiction over the action. 29 Kan. App. 2d at 1006-07.
“[2], After suit was filed, plaintiff obtained appointment of a special administrator for purposes of receiving service on behalf of Louis Williams. Plaintiff has moved to substitute the special administrator as defendant in this action. However, the Moore case makes clear that substitution is not possible because, as noted above, the suit is a nullity and ‘(substitution is not possible if one who was named as a party in fact died before commencement of the action.’ Moore, 29 Kan. App. 2d at 1009. The Court finds that this case is controlled by, and is indistinguishable from Moore.
....
“IT IS THEREFORE by the Court ordered, adjudged and decreed that the plaintiffs motion to substitute be denied and that the defendant’s motion be granted; and that this matter shall be, and is hereby, dismissed without prejudice.” (Emphasis added.)
The language in the order was approved by both sides.
As noted earlier, the motion at issue in Moore — the case the district court found “indistinguishable” and “controlling” — was a motion to substitute under K.S.A. 60-225. Accordingly, in our view, the district court could not have been much more clear as to its understanding of the nature of Back-Wenzel’s motion.
Even in Back-Wenzel’s brief to the Court of Appeals, she does not specifically argue that her motion was anything other than one to substitute parties. Accordingly, it appears from the record on appeal that the first time Back-Wenzel’s motion to substitute was actually characterized as anything else, i.e., a motion to amend the pleadings, was the Court of Appeals’ decision in the instant case. Ironically, that court stated: “We agree with the defendant that if the plaintiff is relying only upon K S.A. 60-225 to support substitution, Moore controls because on its face the statute is not applicable.” (Emphasis added.) 32 Kan. App. 2d at 634. There is nothing in the record demonstrating that the plaintiff relied upon anything besides 60-225.
Our affirmation of the district court on the basis of 60-225 renders moot any discussion about the 60-215 cases cited by the Court of Appeals.
The decision of the Court of Appeals is reversed, and the decision of the district court is affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
-76,
-24,
-36,
-100,
24,
-31,
58,
18,
123,
-29,
33,
-45,
43,
-38,
29,
125,
-69,
29,
81,
106,
-45,
-73,
87,
-128,
118,
-77,
81,
-35,
-18,
93,
118,
7,
77,
32,
42,
-123,
-58,
-64,
-123,
84,
-124,
4,
25,
-4,
89,
-125,
48,
42,
-42,
5,
117,
14,
-77,
43,
55,
71,
73,
42,
91,
-95,
94,
-112,
-50,
7,
-2,
16,
-94,
4,
-98,
-85,
88,
26,
-120,
57,
0,
-24,
51,
-74,
-58,
-76,
107,
-103,
32,
-25,
99,
51,
29,
-19,
-12,
-104,
14,
-7,
31,
-122,
-103,
89,
41,
5,
-106,
63,
127,
68,
79,
124,
-18,
-108,
95,
-84,
-113,
-50,
-106,
-109,
-33,
113,
-116,
11,
-21,
7,
116,
113,
-100,
-30,
92,
67,
113,
-101,
-42,
-106
]
|
The opinion of the court was delivered by
Beier, J.:
This appeal of a district court’s ruling regarding an attorney’s lien spotlights procedures followed by appellant Tier Technologies, Inc., d/b/a Kansas Payment Center.
Prior to the resolution of this divorce case between R. Wayne Brown and Katrina Brown, Katrina’s attorney twice filed an attorney’s lien against his client’s anticipated property settlement and support payments. The attorney, John W. Lehecka, served notice of both hens on Katrina and on Wayne’s attorney, T. Michael Wilson.
When the divorce was granted, the district judge directed that all payments from Wayne to Katrina be made through the Kansas Payment Center (the Center). In the journal entry, the Center was ordered to forward all payments to Katrina at “301 W. Central, #203, Wichita, KS 67202,” which was Lehecka’s office address.
Approximately a year and a half after the divorce was granted, Wayne sent two checks to satisfy his entire settlement and support obligation to the Center. Although the checks were made out to both Katrina and Lehecka, the Center processed the checks without Lehecka’s knowledge or signature and sent all of the proceeds directly to Katrina’s address instead of to Lehecka’s office. Evidently, Katrina’s address rather than Lehecka’s office address was shown on the electronic version of case information earlier sent to the Center.
Lehecka filed a motion in the district court, claiming the Center wrongfully paid the money due him to Katrina.
The Center challenged the district court’s jurisdiction, arguing Lehecka was required to intervene in the divorce action before he could recover his fees.
The Center also argued before the district court that checks sent to the Center often have two payees, usually when an ex-spouse is paying child support and the minor child’s name appears on the check. Because the minor child’s name is not included in the case information given to the Center, the Center simply checks for two other points of identification on the check, such as the court case number and the correct name of the other payee. If two identification points are found, the check is processed even though it contains the child’s name as well. The Center claimed the problem that arose in this case cannot be avoided because of the large volume of checks it receives each day.
The district court held two hearings on Lehecka’s motion. Katrina attended the first hearing but not the second, despite having been subpoenaed by the Center.
At the first hearing, the court announced that the Center had been joined in the action. The court heard the parties’ arguments and instructed the Center to pay the entire amount of the property settlement and maintenance into the court. The court then decided that another hearing was needed to determine how the money paid into court would be disbursed.
At the second hearing, the Center argued that Katrina’s property settlement and maintenance amounts qualified as exempt property under K.S.A. 2004 Supp. 60-2308(e). The property settlement amount was exempt, it said, because it was based on proceeds from the sale of Katrina’s homestead and a portion of Wayne’s retirement account. The maintenance amount was exempt, the Center argued, because the district court had not entered judgment until 16 months after maintenance payments were to have begun.
The court found that there were two payees listed on the checks from Wayne and that the Center improperly processed the checks and paid all of the proceeds to Katrina. In addition, despite holding that the Center lacked standing to argue that the payments to Katrina qualified as exempt property, the district court said an amount equal to four of the monthly maintenance payments was exempt because those four payments were not yet past due at the time of the district court’s final order on the property settlement and support. The district court also ordered Katrina to indemnify the Center in the amount of $19,003.25.
Our analysis begins with the language of the attorney’s hen statute, K.S.A. 7-108, which reads:
“An attorney has a lien for a general balance of compensation upon any papers of his or her client which have come into the attorney’s possession in the course of his or her professional employment, upon money in fhe attorney’s hands belonging to the client, and upon money due to the client and in the hands of the adverse party, in any matter, action or proceeding in which the attorney was employed, from the time of giving notice of the lien to the party; such notice must be in writing, and may be served in the same manner as a summons, and upon any person, officer or agent upon whom a summons under the laws of this state may be served, and may also be served upon a regularly employed salaried attorney of the party.”
To the extent this case requires interpretation of this statute, our standard of review is unlimited. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
The Center argues the district court erred in enforcing Lehecka’s attorneys’ hens against it, because it was not an adverse party and because it received no notice of the liens.
For his part, Lehecka argues that there was no need for the district court to enforce the liens. Rather, the liens were effective and properly enforced against Wayne, and Wayne dutifully made his checks payable to both Katrina and Lehecka. According to Lehecka, the Center had all the notice it deserved of Lehecka’s interest in the checks, because each was made payable to both Katrina and Lehecka; the Center nevertheless negotiated the checks without his endorsement, which was improper.
We agree with Lehecka that his liens were effective against Wayne, the adverse party in the divorce action. Under fhe plain language of the governing statute, Lehecka had hens “for a general balance of compensation . . . upon money due to fhe client and in the hands of the adverse party, in any matter, action or proceeding in which the attorney was employed, from the time of giving notice of the lien to the party.” K.S.A. 7-108. There is no dispute that Lehecka’s notice of the two liens was in writing and correctly served, and Wayne responded appropriately by naming Lehecka as one of the payees on the two checks.
In short, Lehecka’s hens had attached to the money represented by the two checks before the checks were ever forwarded to the Center. The more difficult issue before us is whether Lehecka’s hens were somehow defeated when the checks passed through the Center. This court has not previously decided this legal issue, and related authorities from other jurisdictions are few.
Kysor Ind. Corp. v. D.M. Liq. Co., 11 Mich. App. 438, 161 N.W.2d 452 (1968), is closest to this case. In Kysor, the Michigan Court of Appeals approved a lower court decision that “an attorney’s lien is not lost by a transfer of possession to the court or to another person for special purposes under court order.” 11 Mich. App. at 446. In that case, attorneys had possession of a stock certificate belonging to their client, and they refused to relinquish possession of it, claiming they would be adversely affected by disposition of the stock without their knowledge.- The court took possession of the certificate and concluded that the “taking of possession of the stock certificate ... by the court [did] not deprive the . . . law firm of its attorney’s retaining hen, i.e., only its voluntary release will defeat the hen.” 11 Mich. App. at 448.
In Steiger v. Armellino, 315 N.J. Super. 176, 716 A.2d 1216 (1998), Jon Steiger represented Regina Armellino in her divorce. Steiger filed an attorney’s hen against money held in escrow in relation to a separate, previous suit. The New Jersey Superior Court held the hen properly attached to the money in escrow. Most important for our purposes, the court then enjoined Armelhno, any of her representatives, and any third party who had notice of the lien from disbursing the funds before Steiger’s fee was decided. 315 N.J. Super, at 184.
In addition, in Brown v. Vermont Mut. Ins. Co., 614 So. 2d 574, 578-81 (Fla. Dist. App. 1993), the court held that an insurance company could be held jointly and severally liable on an attorney’s hen when the insurance company had paid the entire settlement amount to the attorney’s former client.
In Kansas, pursuant to K.S.A. 2004 Supp. 23-4,118, the Center is empowered by tire Department of Social and Rehabilitation Services to collect and disburse payments. Kansas courts may direct that such payments be made through the Center, as the district court did in this case. By accepting and processing the checks, the Center acted as an arm of the court, gaining only a temporary possessory interest in the payments. It did not gain ownership of the checks or the money they represented; it had no right to dis burse the proceeds in any manner not previously authorized by the court. See K.S.A. 2004 Supp. 23-4,118. Because Lehecka properly filed and gave notice of his hens, the Center was bound to abide by them. As in the Kysor case, the lien remained in effect unless Lehecka voluntarily released it or it was paid.
The Center’s argument that it had no actual notice of the liens does nothing to change our view. The two checks from Wayne clearly indicated Lehecka’s interest by naming him as a payee. This provided the Center with at least constructive notice and placed on it a duty to inquire as to Lehecka’s role and claim. The fact that the Center routinely treats other two-payee checks in such a manner is no defense. In addition, the Center compounded its first mistake here by sending the money directly to Katrina at her address rather than to her at Lehecka’s office. Again, its excuse that Lehecka’s address was not shown on the electronic case information it had received merely describes another way in which its procedures and the communication it maintains with the court may be improved to avoid future problems.
On appeal, the Center also makes a half-hearted attempt to renew the jurisdictional challenge it raised in the district court, arguing Lehecka’s failure to intervene in the action and plead conversion deprived the court of jurisdiction. It cites no authority for this position, and we see none. A Kansas court has subject-matter jurisdiction over disputes involving an attorney’s lien filed in a case before it. See Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 794, 635 P.2d 1248 (1981). And the district court had personal jurisdiction over the Center, which submitted to the court’s jurisdiction by entering an appearance and requesting an opportunity to file a response to Lehecka’s motion. After the district court granted the Center’s request, the Center filed its response and appeared at the two hearings.
We must also address the exemptions claimed by the Center on Katrina’s behalf.
We agree with the district court that the Center did not have standing to argue applicability of the exemptions in this case. Whether a litigant has standing is a question of law subject to unlimited review. See In re Estate of Milward, 31 Kan. App. 2d 786, 787, 73 P.3d 155 (2003) (citing State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 624, 7 P.3d 1194 [2000]). It is a “question of whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant the invocation of jurisdiction and justify exercise of die court’s remedial powers on his or her behalf.” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 30, 59 P.3d 1003 (2002); see also 312 Education Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882-83, 47 P.3d 383 (2002).
We have already stated that the Center had no ownership interest in the two checks from Wayne or the money they represented. At most it had a temporary possessory interest, which evaporated as soon as it disbursed the proceeds. Had die Center performed this task correctly, there would have been no controversy between it and Lehecka, although Katrina would have been free to raise exemptions as a defense to her attorney’s liens. The Center’s failure to discharge its responsibility as a payment agent correctly did not transform it into Katrina’s champion; quite die opposite. The Center did not represent Katrina’s interests; in fact, it made clear its intention to seek indemnification from her for any amount Lehecka forced it to pay. Although we have upheld a third party’s right to claim an exemption in order to protect its interest in property in certain distinct circumstances, see Bank of Kansas v. Davison, 253 Kan. 780, 784, 861 P.2d 806 (1993), the Center had no such right here. It lacked any ownership interest in die payments tiiat passed through its hands.
This being said, die district court could have raised the exemption issue sua sponte. We therefore examine the correctness of its ruling on the merits.
First, with regard to the property settlement amount, no exemption applies. A large portion of the property settlement represented repayment of a loan Katrina made to Wayne. Even if die loan was made from proceeds from sale of Katrina’s homestead, the homestead exemption did not apply. There is no exemption for loan repayment.
A smaller portion of the property settlement represented growdi in Wayne’s retirement account during his and Katrina’s brief marriage. The district judge ordered that Wayne make a cash payment to Katrina of this amount; the retirement fund proceeds were not rolled into an exempt retirement account.
Second, with regard to the maintenance amount, two earlier Kansas cases are significant.
In the first, In re Marriage of Wageman, 25 Kan. App. 2d 682, 968 P.2d 1114 (1998), Roxanne Wageman appealed the district court’s order that her attorney’s hen could be satisfied out of her settlement received in a claim for unpaid child support. Wageman argued that all child support was “exempt from execution, attachment, or garnishment” pursuant to 60-2308(e), which stated:
“ ‘Money held by the state department of social and rehabilitation services, any clerk of a district court or a district court trustee in connection with a court order for the support of any person, whether it be identified as child support, spousal support, alimony or maintenance, shall be exempt from execution, attachment or garnishment process.’ ” 25 Kan. App. 2d at 683.
The Court of Appeals rejected her argument and held that the exemption outlined in “K.S.A. 60-2308(e) does not apply for the reason that the money is a settlement of a disputed claim [for child support].” 25 Kan. App. 2d at 684. Wageman had settled for a lump sum payment for a 6-year arrearage of child support, and the panel concluded that the children had been adequately supported during the 6-year period. Enforcement of the lien would not deprive the children of necessities.
This court distinguished Wageman in In re Marriage of Phillips, 272 Kan. 202, 206-07, 32 P.3d 1128 (2001). In Phillips, the appellee’s attorney, James Walker, filed an attorney’s Hen against payments the appellee was receiving as spousal maintenance. We rejected Walker’s attempt to attach his lien to current payments under the authority of Wageman. The exemption in 60-2308(e) was held applicable in Phillips “because the monies in question [were] being used to pay current spousal support.” (Emphasis added.) 272 Kan. at 207.
Here, all but four of the monthly maintenance payments were past due to Katrina when Wayne sent his check. Those four payments are controlled by Phillips. The other payments are controlled by Wageman, because they represented 16 months of past-due support. Katrina, the recipient, had already been adequately provided for when those payments arrived, and Lehecka’s lien trumped the exemption statute covering spousal maintenance.
On remand, the district court should permit Lehecka to recover on his liens against the entire amount of the property settlement and 16 months’ worth of the monthly maintenance payments. The Center is entitled to receive any remaining balance on that portion of the monies after Lehecka’s hens have been paid. As for the four months’ worth of maintenance payments that were not past due, those should be treated as Katrina’s exempt property and, therefore, that amount should be returned to the Center. The Center is also entitled to be fully indemnified by Katrina for the amount it pays to Lehecka.
Finally, we also have before us Lehecka’s motion for an award of attorney fees on appeal. The Center has filed a response to that motion. We see no justification for an award of fees on appeal. This case raised a novel issue of law. We therefore deny Lehecka’s motion.
Affirmed and remanded for proceedings consistent with this opinion.
Gernon, J., not participating. | [
-15,
-4,
-15,
108,
-120,
-128,
26,
-88,
120,
-95,
-25,
83,
-21,
-14,
20,
125,
-15,
41,
100,
105,
70,
-77,
15,
-32,
-10,
-77,
-79,
-41,
-71,
93,
-28,
-106,
76,
48,
-118,
-41,
102,
-126,
-121,
28,
-122,
-122,
75,
108,
-39,
67,
52,
-29,
22,
13,
117,
-83,
-14,
109,
62,
70,
76,
46,
29,
-17,
-112,
-77,
-21,
-105,
127,
19,
-79,
4,
-112,
70,
88,
47,
-120,
-72,
2,
-23,
50,
-74,
-122,
116,
75,
-69,
33,
102,
98,
18,
-111,
-17,
-76,
-103,
-114,
-1,
-97,
-90,
-47,
121,
1,
14,
-74,
-99,
101,
86,
7,
-4,
110,
4,
11,
-20,
11,
-50,
-44,
-77,
-115,
117,
-115,
27,
-17,
-122,
32,
97,
-50,
-126,
94,
-26,
58,
-69,
110,
-78
]
|
The opinion of the court was delivered by
Lockett, J.:
Defendant Joyce Mincey was convicted of aiding and abetting attempted first-degree murder, conspiracy to commit first-degree murder, aiding and abetting aggravated robbery, and conspiracy to commit aggravated robbery. Defendant appealed. The Court of Appeals affirmed all convictions. We granted review pursuant to K.S.A. 20-3018(b).
On October 29, 1994, Mincey’s son, Lewis Mincey, and Everett Hayes, who lived with defendant, entered J.F.’s home under the pretext that their car was broken down and they needed to call home to obtain a ride. Hayes raped J.F.; Lewis cut her throat. The two took money from her purse and left her for dead. Their attempt to kill J.F. was unsuccessful.
The other relevant facts are:
(1) The defendant knew substantially in advance of the crimes that Lewis and Everett were going to rob someone.
(2) Mincey counseled and advised Lewis and Everett to kill their victim if they thought they might be identified and arrested.
(3) Mincey loaned Lewis and Everett her van so that Lewis and Everett could commit the robbery.
Mincey was charged with aiding and abetting attempted first-degree murder, conspiracy to commit first-degree murder, aiding and abetting aggravated robbery, and conspiracy to commit aggravated robbery. Prior to trial, Mincey attacked the charging instrument by attempting to compel the State to elect between counts one and two and counts three and four of the information because the acts charged were multiplicitous. The district judge denied the motion.
Mincey was convicted of all four charges. She appealed, claiming (1) the convictions for conspiracy to commit first-degree murder and aggravated robbery are multiplicitous with her convictions of aiding and abetting attempted first-degree murder and aggravated robbery; (2) she could not be convicted of two separate conspiracies arising out of one agreement to commit two offenses;
(3) the evidence was insufficient to support a finding of the requisite intent to commit aiding and abetting of attempted first-degree murder and conspiracy to commit first-degree murder; and
(4) the trial court erred in submitting to the jury a written instruction that differed from the instruction read to the jury.
The Court of Appeals affirmed all convictions. Mincey sought review of issues 1, 2, and 3, which we granted. Other relevant facts will be discussed as necessary.
Mincey argues that because the facts necessary to prove aiding and abetting also necessarily prove the conspiracy charge, the aiding and abetting charges are multiplicitous with the conspiracy charges. Citing State v. Mason, 250 Kan. 393, Syl. ¶ 3, 827 P.2d 748 (1992), the State asserts that multiplicity does not depend on whether the facts proved at trial are actually used to support the conviction of both offenses; rather, multiplicity turns on whether the necessary elements of proof of the one crime are included in the other. The State points out that the charge , of conspiracy to commit first-degree murder requires an agreement to commit a crime and an overt act in furtherance of the agreement, while aiding and abetting attempted first-degree murder requires actual participation in an overt act toward the perpetration of the crime. Thus, the State contends, under the traditional test of multiplicity, these two offenses are not multiplicitous.
MULTIPLE CHARGES AND PUNISHMENT FOR THE SAME OFFENSE
Were the charges alleged in the complaint and Mincey’s convictions for conspiracy to commit first-degree murder and conspiracy to commit aggravated robbery multiplicitous with her convictions for aiding and abetting attempted first-degree murder and aiding and abetting aggravated, robbery? The question of whether convictions are multiplicitous is a question of law over which this court’s review is unlimited. See State v. Perry, 16 Kan. App. 2d 150, 151, 823 P.2d 804 (1991).
The parties argue that the law regarding multiplicity has become confused by this court’s decisions in State v. Webber, 260 Kan. 263, 918 P.2d 609 (1996); State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992); State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988); and State v. Hobson, 234 Kan. 133, 671 P.2d 1365 (1983). To point out why there is confusion requires an analysis of K.S.A. 21-3107 and a short discussion of these cases.
Prior to the enactment of the Kansas Criminal Code, K.S.A. 21-3101 et seq., and the Code of Criminal Procedure, K.S.A. 22-2101 et seq., the method for determining if there were multiple prosecutions and punishment for the same offense was the Double Jeopardy Clause of the United States Constitution, which protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of § 10 of the Kansas Constitution Bill of Rights is very similar to the language contained in the Fifth Amendment to the United States Constitution. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Bill of Rights. Therefore, the three underlying protections contained in the Double Jeopardy Clause of the United States Constitution are contained in § 10 of the Kansas Bill of Rights.
In order to implement, codify, and define the constitutional guarantees of the Double Jeopardy Clause, the Kansas Legislature enacted two statutes: (1) K.S.A. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limita tions upon unfair multiple prosecutions and punishment. K.S.A. 21-3108, which covers the complex problems of former jeopardy, is not applicable to this case.
Part of the confusion arises because K.S.A. 21-3107 is a complex statute that allows for multiple prosecutions for the same act; prohibits conviction and punishment of the crime charged and an included crime; and, in addition, requires the judge to instruct the jury on the crime charged and all lesser crimes of which the accused could be found guilty. It states in part:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
The parties and courts have added to the confusion by failing to recognize that in some instances Fike, Warren, Webber, and Hob-son raise questions that required application of different sections of the statute. The discussions and analysis of these and other cases is further confused by use of the terms “duplicity” and “multiplicity,” which refer to defects in the charging document, i.e., the complaint or information.
“Duplicity” in a criminal pleading is the joining of two or more distinct and separate offenses in a single count in a complaint or information. “Multiplicity” in a criminal pleading is the charging of a single offense in several counts of a complaint or information. The fact that an accused is charged with multiple crimes in a com plaint or information is not in and of itself a violation of the Double Jeopardy Clause. The clause merely prevents a defendant from being punished more than once for the same crime. State v. Freeman, 236 Kan. 274, Syl. ¶¶ 4, 5, 689 P.2d 885 (1984).
CHARGING INSTRUMENT
Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A. 22-2301. The complaint shall be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22-3201(b). Two or more crimes may be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).
The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which the defendant is charged and which the defendant must defend against at time of trial. K.S.A. 21-3107(1) states which crimes maybe alleged in a complaint or information by the State and how the offenses must be alleged in the charging instrument. K.S.A. 21-3107(2) requires that upon prosecution, the accused may be convicted of either a crime charged in a complaint or information or an included crime, but not both.
K.S.A. 21-3107 provides statutory authority where the criminal conduct of a defendant, although consisting of a single transaction, may result in a multiple violation of the criminal code, for which the defendant may be severally prosecuted. State v. Pencek, 224 Kan. 725, Syl. ¶ 2, 585 P.2d 1052 (1978). The prosecution may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transac tion does not create a single offense where two distinct offenses are defined by statute. State v. Chears, 231 Kan. 161, Syl. ¶ 2, 643 P.2d 154 (1982).
Though for different purposes, the same test is used in determining whether offenses charged in a complaint or information constitute lesser included offenses and multiple charges under 21-3107 or in determining whether a prosecution is barred by a former prosecution for a crime arising out of the same conduct under 21-3108. State v. Mourning, 233 Kan. 678, Syl. ¶ 1, 664 P.2d 857 (1983).
Mincey was charged and convicted of: (1) aiding and abetting attempted first-degree murder; (2) conspiracy to commit first-degree murder; (3) aiding and abetting aggravated robbery; and (4) conspiracy to commit aggravated robbery. The fact that an accused is charged with and convicted of multiple crimes is not in and of itself a violation of the Double Jeopardy Clause. The clause merely prevents a defendant from being convicted and punished more than once for the same crime.
In State v. Webber, 260 Kan. 263, 918 P.2d 609 (1996), Webber was also charged with and convicted of both conspiracy to commit murder and aiding and abetting murder. The defendant appealed, claiming the charges were multiplicitous. Referring to K.S.A. 21-3107 the Webber court rejected defendant’s argument that the same facts were used to prove both conspiracy and aiding and abetting. It pointed out that multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the necessary elements of proof of the one crime are included in the other. 260 Kan. at 283 (quoting State v. Hobson, 234 Kan. 133, Syl. ¶ 3, 671 P.2d 1365 [1983]). Citing Hobson, the Webber court concluded that conspiracy and aiding and abetting are not multiple prosecutions because each crime charged requires proof of a separate element.
Hobson is also factually similar to this case. Hobson was charged with and convicted of conspiracy to commit murder and with aiding and abetting first-degree murder. Hobson appealed, claiming the charges were duplicitous (multiple prosecutions). Although the parties raised the issue as a question of duplicity, the question was whether the charges and convictions were multiple charges and convictions. In determining whether Hobson’s convictions were multiple, the Hobson court first stated that the test is whether each of the offenses charged requires proof of an additional element of the crime which the other does not; if an additional fact is required, the offenses are not duplicitous (multiple). 234 Kan. at 137 (citing Jarrell v. State, 212 Kan. 171, 175, 510 P.2d 127 [1973]).
Mincey acknowledges that her aiding and abetting and conspiracy convictions stand under the Hobson and Webber tests, but argues the test to determine if convictions are multiple was expanded in State v. Fike, 243 Kan. 365, and State v. Warren, 252 Kan. 169. Under the expanded test, Mincey argues that the charges are multiple. The State argues, however, that under either test, Mincey’s conviction for each crime is correct.
Initially, it is important to note that the issue in Fike was not whether criminal charges were multiple, but whethér the trial court failed to instruct on lesser included offenses as required by K.S.A. 21-3107. Because the Warren court discussed the similarities between the concepts of multiple convictions and lesser included offenses, the Court of Appeals and Mincey mistakenly assumed that Fike had expanded the traditional element test to determine if convictions are multiple punishments for the offenses.
In Warren, the defendant and two coconspirators agreed that Warren would drop the accomplices off at the mall, where they would steal a purse. Warren would drive the getaway car. Warren’s accomplices stole a woman’s purse and in the process knocked her to the ground. The 87-year-old woman was severely injured when knocked to the ground. Defendant was convicted of aiding and abetting aggravated robbery, aiding and abetting aggravated battery, and conspiracy to commit robbery.
Warren argued that the crimes of aiding and abetting to commit aggravated robbery and aggravated battery were multiple convictions. To support his argument, Warren relied upon two Court of Appeals decisions in which the terms “multiplicity” and “lesser included offense” were used interchangeably. The Court of Appeals applied the Fike test for lesser included offenses.
Determining that the similarity between the two areas was confusing, the 'Warren court analyzed the history of multiple convictions and lesser included offenses. Following State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981), the Warren court noted that (1) a single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution; (2) if each offense charged requires proof of a fact not required in proving the other, the offenses do not merge; (3) where offenses are committed separately and severally, at different times and at different places, they do not arise out of a single wrongful act. 252 Kan. at 175.
K.S.A. 21-3107 prohibits multiple charges of the same crime in the complaint. It also requires the trial court to instruct the juiy not only as to the crime charged, but also as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon fhe evidence adduced and prohibits multiple convictions. Thus, it is not surprising that there is confusion regarding fhe law of multiple charges and multiple convictions. Mincey challenged the charging instrument, her convictions, and their constitutionality.
Therefore, applying the tests discussed to the facts of this case, we are able to quickly determine the crimes of aiding and abetting and conspiracy do not have the same elements.
K.S.A. 21-3205 provides:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
K.S.A. 21-3302 provides, in relevant part:
“(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a coconspirator.”
Having found that the crimes of aiding and abetting and conspiracy do not have the same elements, we next must determine whether the same act was used to prove both crimes.
Mincey agreed to rob someone, discussed killing the victim if necessary to avoid getting caught, and helped her coconspirators plan the crime. In short, there is no doubt that she entered into the agreement necessary to be guilty of violating K.S.A. 21-3302. However, she is not guilty of conspiracy unless she or one of her coconspirators committed an overt act in furtherance of the conspiracy. Her coconspirators committed many acts in carrying out the crimes. These facts are sufficient to convict Mincey of conspiracy.
To be convicted of aiding and abetting, Mincey must have facilitated the crime. Had Mincey only assisted in planning the crime, she could argue that the convictions were multiple because the same act, planning and encouraging, would be used for charging two separate crimes. Here, Mincey actually aided in the crime. She gave van keys to her coconspirators, who went to the victim’s house; gained access by tricking the victim; and raped, robbed, and stabbed the victim. These acts of the coconspirators were not necessary to Mincey’s conspiracy conviction.
Conspiracy and aiding and abetting another offense are not multiplicitous. Each offense requires proof of an element not required by the other. Conspiracy requires an agreement to commit a crime, while aiding and abetting requires actual participation in the act constituting the offense. The defendant’s acts support the two crimes; therefore, the convictions for aiding and abetting aggravated robbery (actual participation) and conspiracy (an agreement to commit the crime of aggravated robbery) are not multiple.
CONVICTION OF TWO CONSPIRACIES ARISING FROM A SINGLE AGREEMENT TO COMMIT TWO DISTINCT CRIMES
Whether Mincey can be convicted of two conspiracies based upon a single agreement to commit two distinct crimes under K.S.A. 21-3107 is a question of law over which this court has unlimited review when the issue has been raised in the district court. The issue was not raised in Mincey’s motion for a new trial.
An issue not presented to the trial court will not be considered for the first time on appeal. State v. Ninci, 262 Kan. 21, Syl. ¶ 8, 936 P.2d 1364 (1997); State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996). See K.S.A. 60-404; see also State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995) (timely objection necessaiy to give the trial court an opportunity to correct alleged trial errors); State v. McDaniel, 255 Kan. 756, 765-66, 877 P.2d 961 (1994) (review of case law).
We have recognized three exceptions to the general rule in cases where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995); see Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967). Mincey argues that justice requires this court to hear her claim because she is serving consecutive terms for the two conspiracy convictions. Because the defendant’s claim involves only a point of law and is determinative of some issues, and the State did not object to review of this issue, we will review the claim.
Relying on Braverman v. United States, 317 U.S. 49, 87 L. Ed. 23, 63 S. Ct. 99 (1942), Mincey asserts that the State cannot charge separate crimes of conspiracy where there is one conspiracy to commit several crimes. The State argues Braverman does not apply because all of the counts of conspiracy in Braverman were based on violation of the same statute within the federal criminal code existing at the time. The State asserts that if the traditional multiplicity analysis is followed, Mincey’s two conspiracy convictions stand.
In Braverman, defendants were charged with seven counts of conspiracy to violate separate and distinct laws. It was undisputed that there was one agreement to commit several crimes. The Braverman Court stated: “The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” 317 U.S. at 53. The Court goes on to say: “The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute [the conspiracy statute].” 317 U.S. at 54.
There are no Kansas cases adopting the Braverman rule, nor are any Kansas cases cited where this issue arose. Mincey cites numerous cases from other states that have adopted Braverman. Braverman, like the conspiracy alleged against Mincey, has a single agreement to commit several crimes. Here, Mincey conspired to commit aggravated robbery and, if necessary, premeditated murder. Even though there was the possibility of two crimes occurring, there was only one criminal agreement entered into by the defendants.
Criminal defendants can be held responsible for crimes committed in furtherance of the conspiracy that may not have been authorized by a particular coconspirator but were reasonably foreseeable. A single continuing conspiracy, however diverse its objects, cannot be broken down into component sub-agreements for the purpose of multiple punishments or multiple prosecutions. When separate conspiracies are alleged and both are founded on a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform an illegal act or acts.
Mincey’s conviction of conspiracy to commit aggravated robbery is reversed.
SUFFICIENCY OF THE EVIDENCE
Mincey argues that there was insufficient evidence to support a finding beyond a reasonable doubt that she had the requisite intent and premeditation required to support convictions for aiding and abetting attempted first-degree murder and conspiracy to commit first-degree murder. When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, Syl. ¶ 5, 940 P.2d 27 (1997); see State v. Mathenia, 262 Kan. 890, 901, 942 P.2d 624 (1997).
First, Mincey attempts to draw a distinction between being charged with a crime and being charged as an aider and abettor to a crime. Mincey asserts that if she had been charged with the crime of first-degree murder, perhaps the charges against her would be permissible as a reasonably foreseeable result of aggravated robbery. However, she argues that because she was only charged with aiding and abetting, “whether the state presented sufficient evidence of the requisite specific intent to prove aiding and abetting attempted first-degree murder must be analyzed in the specific context in which that charge was brought.” Finally, Mincey argues that “a showing of specific intent is required to establish guilt as an aider and abettor under K.S.A. 21-3205(1).”
The evidence indicates Mincey told her coconspirators to kill the victim of their robbery if necessary to avoid getting caught. In the face of this dispositive statement, Mincey now argues:
“The statement ‘kill them if you think you’re going to get caught’ is insufficient to prove beyond a reasonable doubt that Ms. Mincey had a specific intent to commit a premeditated murder. The statement is qualified; it does not establish the existence of a specific, premeditated intent to kül, but rather that a indication [sic] that a killing be resorted to if specific circumstances occurred. A specific intent to kill must be show [sic] to establish the offense of attempted first-degree murder.
“Further, Ms. Mincey’s statement reveals that several potential victims of the robbery were discussed and that she did not know whether ‘Jo’ was a man or a woman. Ms. Mincey could not have had a premeditated, specific intent to kill Ms. Ferguson when she was not even aware of whom the intended victim was to be.”
A review of the statute and Mincey’s statement is sufficient to decide this issue. K.S.A. 21-3205 provides that a person is liable for the crimes of another if that person, “aids, abets, advises, hires, counsels or procures the other to commit the crime.” Here, Mincey advised and counselled her coconspirators to kill the victim if necessary to avoid getting caught. Mincey s coconspirators followed her advice and counsel. That the decision to murder was conditional does not make the crime committed any less premeditated. Eveiy premeditated murder is conditioned upon an “alive” victim at the time of the attempt. Mincey cited no cases to support her novel concept.
Affirmed in part and reversed in part. | [
-16,
-24,
-27,
-65,
24,
-32,
43,
56,
3,
-111,
-92,
-13,
-85,
-51,
1,
105,
-69,
111,
85,
97,
-15,
-73,
7,
97,
-14,
-13,
-13,
-60,
-77,
91,
-2,
-2,
73,
112,
78,
89,
102,
10,
-59,
-110,
-118,
-127,
-88,
-29,
-45,
-110,
38,
58,
116,
6,
101,
-116,
-77,
42,
30,
-62,
73,
40,
75,
-67,
80,
57,
10,
7,
-34,
20,
-109,
34,
-68,
7,
80,
39,
-103,
49,
0,
-24,
99,
-106,
-128,
116,
79,
-119,
12,
98,
99,
32,
-44,
-49,
44,
-120,
46,
118,
-67,
-89,
24,
73,
101,
4,
31,
-35,
117,
52,
46,
-4,
-5,
95,
25,
108,
36,
-49,
-108,
-95,
-115,
112,
86,
-38,
-21,
37,
33,
113,
-49,
98,
92,
117,
84,
-37,
-114,
-108
]
|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Cleave Sims, from his convictions by a juiy in Sedgwick County, Kansas, of one count of first-degree felony murder, two counts of aggravated battery, and one count of criminal discharge of a firearm. In total, the trial court sentenced Cleave to life in prison plus a consecutive 60 months. Cleave appeals his convictions and sentences.
This is a drive-by shooting case. Cleave’s brother, Essex T. Sims, rode in the front passenger seat and did some of the shooting while Cleave drove the car. Many of the issues in Essex’s case are controlling in this case and will be referred to as the various issues are discussed. See State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997). Essex and Cleave were jointly tried. Thus, the facts are the same and are fully set forth in 262 Kan. at 166-68. We will not repeat them here except as necessary in discussing the issues.
I. SELF-DEFENSE
Cleave’s defense counsel requested that the trial court instruct the juiy on self-defense pursuant to PIK Crim. 3d 54.17. The trial court denied his request and refused to provide the jury with an instruction on self-defense. Cleave challenges the trial court’s ruling on appeal. Essex also raised this issue in his appeal, which this court rejected. In rejecting Essex’s claim, this court stated:
“[Essex] Sims argues the evidence indicates the jury could have found he acted in self-defense because (1) the Glock found inside the Thomas home had fired at least two rounds; (2) two vehicles across the street from the Thomas home were damaged by gunfire; (3) a neighbor heard rapid return fire from the Thomas home; and (4) Lamont Sanders testified he saw Carlton Stokes aim a Glock at [Essex] Sims’ vehicle right before gunfire commenced.
“If [Essex] Sims had acknowledged participation in the gunfire, then this evidence would likely have required the self-defense instruction. However, [Essex] Sims’ theory of defense was that he did not participate in the shooting. He attempted to discredit witnesses who said they saw him holding a weapon. Sanders, the primary defense witness, denied having knowledge of weapons in [Essex] Sims’ car or of any cars following behind [Essex] Sims’ vehicle.
“There was absolutely no evidence proving the subjective component of self-defense, that [Essex] Sims honestly believed he had to kill in self-defense. The trial court’s failure to instruct on self-defense was not clearly erroneous, and this issue fails.” (Emphasis added.) 262 Kan. at 172-73.
Cleave acknowledges this court’s ruling regarding this same issue when it was previously raised by Essex in his appeal. However, Cleave claims that the issue presented herein is different than the issue presented in Essex’s appeal. This is because Cleave specifically requested a self-defense instruction at trial; whereas, Essex made no such request at trial for an instruction on self-defense. Thus, Essex’s appeal of this issue to this court was analyzed under a “clearly erroneous” standard of review. Cleave asserts that this standard of review does not apply to his appeal of this issue since he requested a self-defense instruction at trial. As such, Cleave asks this court to reanalyze this issue in his appeal, regarding an instruction on self-defense, under a less rigid standard of review.
Cleave is entitled to a different standard of review in his appeal of this issue than Essex was entitled to. Essex did not request a juiy instruction on self-defense at trial. This court found that the trial court’s failure to give an instruction on self-defense was not clearly erroneous and thus was not in error.
However, Cleave did specifically request an instruction on self-defense at trial.
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.” State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992).
In analyzing this issue, the court must view the evidence in the light most favorable to Cleave, the party who requested the instruction, as opposed to viewing it under a clearly erroneous standard of review, as the court did in Essex’s appeal. As such, Cleave is entitled to an independent analysis of this issue, under a different standard of review, regardless of this court’s ruling in Essex’s case.
The circumstances in which a defendant is entitled to an instruction on self-defense are discussed in State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977), wherein this court stated: “[I]n order to rely on self-defense as a defense, a person must [1] have a belief that fhe force used was necessary to defend himself and, also, [2] show the existence of some facts that would support such belief.” Further, the Childers court stated that in judging whether the evidence justifies a self-defense instruction, “ ‘it is well to remember the test is not how much but is there any’ ” evidence that a defendant believed force was necessary to defend himself. 222 Kan. at 49. Also, Cleave cites State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987), which held: “It is the duty of fhe trial court to instruct the jury on self-defense so long as there is any evidence tending to establish self-defense, although the evidence maybe slight and may consist solely of the defendant’s own testimony.”
According to Cleave, there was some factual evidence presented at trial which indicated that he had a reasonable belief that force was necessary to defend himself. For instance, Lamont Sanders, the person who sat in the back seat of Cleave’s car on the day in question, testified that as the car drove by the house on Fountain Street, he saw Carlton Stokes, who was standing in the yard outside the house, point a handgun at the car. Sanders testified that it was not until after Stokes pointed his gun at the Sims’ car that the shooting began. Further, Cleave claims that the evidence presented at trial clearly proved that some shots were fired from the house. Gary Miller, a tool marks and firearm examiner for the Wichita Police Department, testified that two of the spent shell casings recovered from around the location of the shooting came from a gun that was found in the Fountain Street house in a clothes dryer. There is evidence that vehicles bn the opposite side of Fountain Street from the house in question were hit by bullets, indicating that shots were fired from the house in the direction of the car Cleave was driving. Finally, one of the neighbors, Martin, testified that gunfire came from the house toward the cars driving past fhe house. Martin stated the shots came from the car first. However, because gunfire from the house returned the gunfire from fhe car so quickly, Cleave claims that a person at the house, such as Stokes, may have already been pointing a weapon at the car at the time the gunfire from fhe car began. According to Sims, it seems unlikely that anyone from the house could have gotten off any gun shots in the time it takes for a car to pass a residence, unless a weapon was already in hand, ready to be fired.
In refusing to give Cleave’s requested self-defense instruction, the trial court explained: “With respect to the self-defense instruction, the defense is, [']we were there but we didn’t do anything[’] and, therefore, there’s no testimony that would justify a self-defense instruction, and I’ll refuse to give it.”
On appeal, Cleave claims that the question at issue was not how the trial court characterized the evidence, but how the jury might have characterized the evidence in light of a self-defense instruction, if given the opportunity.
In response, the State points out that “before a defendant is entitled to a self-defense instruction, relevant evidence must be presented that (1) the defendant honestly and sincerely believed it would be necessary to kill in self-defense and (2) a reasonable person would have perceived the necessity of self-defense.” State v. Sims, 262 Kan. at 172 (citing State v. Tyler, 251 Kan. 616, 625, 840 P.2d 413 [1992]).
Cleave relies on the same evidence that Essex did to support his argument for a self-defense instruction: (1) a Glock pistol found inside the residence had fired at least two shots; (2) vehicles parked across the street from the Thomas home were hit by bullets; (3) a neighbor heard return fire from the house; and (4) the testimony of Lamont Sanders that he was a back seat passenger in the Sims car, and that he saw Carlton Stokes, one of the individuals outside the Thomas home at the time of the attack, aim a Glock pistol at the Sims car immediately before the shooting started. State v. Sims, 262 Kan. at 172.
In Essex’s appeal, this court rejected his request for an instruction on self-defense because his theory of defense was that he did not participate in the shooting at all; not that he shot at the house in self-defense. For instance, at trial, Essex attempted to discredit witnesses who said they saw him holding a gun. Further, the primary defense witness, Sanders, denied knowledge of any guns in the Sims car or of any cars following behind their car. 262 Kan. at 172-73. In Essex’s appeal, this court concluded that there was “absolutely no evidence proving the subjective component of self-de fense, that [Essex] Sims honestly believed he had to kill in self-defense.” 262 Kan. at 173.
To qualify for an instruction on self-defense, there must be some evidence presented at trial that Cleave reasonably believed force was necessary to defend himself. See Childers, 222 Kan. at 48-49; Hill, 242 Kan. at 78. There was at least one State witness who admitted that she heard gunshots coming from the house. However, this witness testified that she did not hear gunshots from the house until after she heard gunshots coming from the passing cars. Thus, the testimony of this witness does not support a theory of self-defense on behalf of Cleave. One defense witness, Sanders, also testified that he saw Stokes point a gun at the car Cleave was driving. Sanders then dove down in the back seat of the car and heard gunshots for the first time. This evidence might have possibly supported a theory of self-defense, but the rest of Sanders’ testimony discounts this theory. Sanders testified that he did not recall seeing a car behind Cleave’s car as it drove down Fountain Street. Further, Sanders claimed that he was not aware of a Tec-9 gun in the car, even though the witnesses of the drive-by shooting testified that they saw Essex shooting a Tec-9 gun from a car driven by Cleave. Finally, there was no testimony from Sanders or anyone else that Essex or Cleave actually saw Stokes with a gun, or that Essex or Cleave might have seen Stokes, or ever could have seen him, from their vantage point in the car. Viewing the evidence in the light most favorable to the defendant, Cleave was not entitled to an instruction on self-defense. The trial court did not err in denying Cleave’s request for a self-defense instruction. This issue fails.
II. GANG AFFILIATION
On October 16, 1995, the prosecution filed a motion seeking permission to introduce evidence of gang affiliation and practice. The State argued in its motion: “Evidence of gang affiliation and practice in this case may provide motive for what is otherwise apparently a motiveless crime.”
At the pretrial hearing, the State produced the testimony of Officer Kent Bauman, assigned to the Wichita Police Department Gang Intelligence Unit. Bauman testified that the records of the unit disclosed that Essex had been identified in September 1992, more that 2Vz years before the shooting, as a member of the Neighborhood Crips gang. He identified Cleave as an “associate” of the Neighborhood Crips. Bauman admitted during cross-examination that the only reason Cleave was listed as a gang “associate” was the fact he was arrested in this case with other gang members.
The prosecution concluded its evidence at the pretrial hearing by soliciting the following testimony from Bauman:
“Q. If signs were flashed in this case by one rival gang to another rival gang, would that be sufficient to precipitate a shooting incident?
“A. Yes, it would. Gangs take being disrespected very seriously.
“Q. Can the mere appearance or sight of a rival set be sufficient in and of itself just there, the mere presence of another set from one in your opinion as an expert in the area of street gangs sufficient to cause a shooting incident?
“A. Yes, it would be.”
At trial, Angela Fair testified that she went to see her grandmother, Althea Thomas, at her grandmother’s house on Fountain Street on the afternoon of March 22, 1995. Angela testified that while she was at her grandmother’s house, she saw a girl in the front yard make what she described as a “gang sign.” According to Angela, the sign consisted of the girl placing her thumb and forefinger together and raising the other three fingers in the air. Angela testified that the girl who made this gesture had been at the Fountain Street house for awhile that day, but she did not know who the girl was, nor could she see to whom, if anyone, the gesture was made.
Angela testified that later, while she was in the living room of her grandmother’s house, she saw the back of a brown Monte Carlo a short distance beyond the driveway. She looked away and immediately heard shots. Angela said she had seen the same Monte Carlo before at Essex and Cleave’s house and had seen them driving the car.
Al Smith also testified at trial that Althea Thomas is his grandmother, and he had been at her house in Wichita when a shooting incident took place there. Smith said he was looking out of the front door of the residence when he saw a brown Cutlass auto mobile containing two men pass by the house. After the car rolled past the house a short ways, Smith lost sight of the car and heard approximately 15 gunshots. At trial, Smith did not recall telling the police that he had seen “gang signs” displayed by anyone prior to the shooting.
Officer Bauman testified that he had questioned Smith regarding the shooting and Smith had told him that earlier on the day of the shooting a car had driven by and one of its occupants had flashed a “gang sign” at people in the yard at 1726 North Fountain. According to Bauman, Smith had said that the sign made from the car was “BK” for “Blood Killer.” Bauman testified that Smith told him an unknown girl at the residence made a “B” for “Blood” sign back to the car.
Bauman also testified concerning gang affiliation and practices, as allowed by the court’s pretrial order. Bauman defined a gang for the jury as “two or more people that join together and have common symbols, signs, mannerisms, and who individually or collectively commit crime.” Bauman identified Essex as having been classified as a Neighborhood Crips gang member in September 1992. Bauman also gave the following testimony concerning Cleave:
“Q. Do you know Cleave Sims?
“A. Briefly, yes.
"Q. Okay.
“A. Not as well as I know his brother.
“Q. And, when you reviewed the records which you had with regard to Cleave Sims, what did they show?
“A. Before the time of this particular crime, we did not have Cleave listed as a gang member.
“Q. All right.
“A. But, during the investigation of this incident, we did list him as an associate. “Q. All, right. And the reason for that was?
“A. That he was arrested for a gang-related drive-by shooting and arrested with other gang members.
“Q. In this case?
“A. Yes, in this case." (Emphasis added.)
Bauman was permitted to offer his opinion that merely flashing a disrespectful sign at a member of another gang is sufficient prov ocation to cause a shooting and that this had happened “many times” in the past.
After Bauman’s direct testimony, Judge Kennedy gave the jury the following instruction:
“Members of the jury, the evidence you’ve just received on gang affiliations has not been received and may not be considered by you as proof that any of the individuals named as gang members or running with gangs or associates of gangs are people of bad character or that they have any predisposition to commit crimes. This evidence has been received and may be considered by you only for the limited purpose or purposes of determining if it tends to show the existence or nonexistence of a bias or interest of any of the witnesses or to show a motive for this crime or these crimes. You must weigh this testimony and this evidence in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.” (Emphasis added.)
On appeal, Cleave challenges the admission of this evidence regarding gang affiliation. Cleave acknowledges that
“[ejvidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.” (Emphasis added.) State v. Tran, 252 Kan. 494, Syl. ¶ 6, 847 P.2d 680 (1993).
According to Cleave, this evidence of gang affiliation was not related to the crime charged, nor was it admitted to show a motive for the crimes charged. Thus, Cleave claims that evidence of his gang affiliation was improperly admitted into trial, thereby violating K.S.A. 60-455 and his constitutional right to a fair trial.
Essex’s appeal also raised the issue that gang affiliation was improperly admitted at trial. In regard to Essex’s issue, this court stated:
“[Essex] Sims did not object to the introduction of the gang evidence at trial. In fact, his attorney initiated the discussion of gang affiliations during his opening statement prior to the presentation of the State’s case. We previously held in State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 (1995):
‘A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. See State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994). By failing to make a contemporaneous objection at trial, the defendant failed to preserve this issue for appeal.’
“In State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994), we reiterated that a party must still make a contemporaneous objection at trial even when an unfavorable ruling on an evidentiary question is received prior to trial.
“Nowhere does [Essex] Sims point out a contemporaneous objection to any of the gang evidence testimony he now claims was prejudicial. Furthermore, some of the complained-of testimony was elicited in response to questions during defense cross-examination. This issue has not properly been preserved for appeal.
“[Essex] Sims claims that we have unlimited de novo review over this issue as it infringes on his constitutional right to a fair trial, citing Southwest Nat’l Bank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, 265, 736 P.2d 894 (1987). This case provides absolutely no support for his proposition. Sims later refers to Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976), to claim that the right to a fair trial in a criminal case is a fundamental liberty secured by the Fourteenth Amendment. However, as we pointed out in State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993), where the defendant argued he was deprived of his right to a fair trial by rulings preventing him from presenting his theory of defense, such a right is subject to statutory rules and case law interpretations of rules of evidence and procedure. Sims was bound by the requirement of a contemporaneous objection at trial, and the admission of this evidence cannot form grounds for a new trial.
“At oral argument, [Essex] Sims asserted the gang evidence was so prejudicial that we should disregard the contemporaneous objection requirement and examine the merits of the issue. Yet, it is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995). ‘Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view.’ 257 Kan. at 978.
“[Officer] Bauman’s testimony regarding gangs and gang affiliation helped explain the lack of apparent motive for this crime, regardless of the strength or weakness of the State’s evidence of gang activity. As gang activity was the State’s proposed motive for the drive-by shooting, such evidence was clearly relevant and related to the crimes charged. The evidence was therefore admissible under our prior holdings of State v. Tran, 252 Kan. 494, 505, 847 P.2d 680 (1993), and State v. Toney, 253 Kan. 651, 655, 862 P.2d 350 (1993), and its admission cannot be deemed an abuse of discretion. The evidence was properly admitted, received a proper limiting instruction, and was not the subject of a proper objection. This issue has no merit, even had it been properly preserved for appeal.
“[Essex] Sims also claims that the admission of the gang testimony violated K.S.A. 60-455, which bars the admission of evidence of other crimes or civil wrongs. This point was not raised below. We stated plainly in State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), that points not presented to the trial court may not be raised on appeal. In addition, we held in State v. Bailey, 251 Kan. 156, 166, 834 P.2d 342 (1992), that membership alone in a gang is not a crime or civil wrong. The fact that Sims might have been a member of a gang was not evidence that he had committed other crimes, and the jury was so instructed. In addition to the failure to properly object or raise this issue below, a defendant presents no error in this issue requiring the grant of a new trial.” 262 Kan. at 169-71.
Just like Essex, Cleave failed to timely object to the evidence regarding gang affiliation when it was presented at trial. Thus, this issue was not properly preserved for appeal. See State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 (1995). This issue fails.
III. MERGER
Cleave was convicted of felony murder based on a killing which occurred during the course of an underlying felony — criminal discharge of a firearm at an occupied dwelling. Cleave was also independently convicted of criminal discharge of a firearm at an occupied dwelling. Cleave claims that he was improperly convicted of felony murder based on this underlying felony, which he was independently convicted of, because the underlying felony of criminal discharge of a firearm at an occupied dwelling merges into the charge of felony murder.
Essex also raised this issue in his appeal to this court. 262 Kan. at 171-72. Essex’s appeal was unsuccessful. In so holding, this court stated:
“Felony murder does not merge with the underlying conviction of criminal discharge of a firearm.
“Again, this issue was not raised to the trial court. As such, it is not properly before us on appeal. However, an identical argument was made on appeal in State v. Alderson, 260 Kan. 445, 459, 922 P.2d 435 (1996), where we pointed out that the legislature determined that criminal discharge of a firearm, K.S.A. 21-4219, does not merge with homicide, citing K.S.A. 21-3436(a)(15).
“Sims contends that our ability to reverse a case if a jury instruction was clearly erroneous, despite the failure to object, equally applies if a charge was not valid, as the jury would have been erroneously instructed on the crimes for which it could convict. This validity of a charge argument is not analogous to a clearly erroneous instruction argument. Additionally, Sims goes on to claim that despite the failure to raise the issue below, we lack jurisdiction to sustain a conviction based on an unconstitutional construction of the felony-murder statute. This contention is incorrect, as Sims offers no support for finding the statute to be uncon stitutional. Instead, he reiterates case law on the merger doctrine decided prior to the enactment of the statute at issue.
“This statute, K.S. A. 21-3436, clearly states that the two crimes of felony murder and criminal discharge of a firearm do not merge and provides:
‘(a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto:
(15) any felony offense as provided in K.S.A. 21-4219 and amendments thereto.’ K.S.A. 21-4219 sets forth the crimes involving criminal discharge of a firearm.
“We find that Alderson is exactly on point and clearly correct. Under the cited Kansas statutes and the Alderson decision, the two crimes do not merge and this point fails.” 262 Kan. at 171-72.
Cleave acknowledges that Essex has previously raised this issue on appeal to this court without success. However, Cleave claims that he is asserting this issue again on appeal because he believes that this court’s ruling in Essex’s appeal was in error. Cleave asks this court to reconsider its ruling in Essex’s appeal and grant him relief under this issue. We decline to do so.
Cleave raises the exact arguments which Essex raised in his appeal. The opinion regarding Essex’s appeal is well reasoned. This court’s ruling in that appeal was not in error. This issue fails.
IV. DOUBLE JEOPARDY
The trial court sentenced Cleave to life in prison for his felony-murder conviction. The trial court also sentenced Cleave to 13 months in prison for his conviction of criminal discharge of a firearm at an occupied dwelling, with the sentence to run consecutive to his life sentence. Finally, the trial court sentenced Cleave to 47 months in prison for each of the aggravated battery convictions, with these two sentences to run concurrent with each other but consecutive to the sentences for the other counts. The trial court imposed a total controlling sentence of life in prison plus a consecutive 60 months.
On appeal, Cleave claims that his consecutive sentences for criminal discharge of a firearm at an occupied dwelling and his sentence for felony murder violate his constitutional protections against double jeopardy. Essex was also sentenced to consecutive sentences for these crimes, and he raised this same issue in his appeal to this court. Essex’s appeal was unsuccessful. In so holding, this court stated:
“Consecutive sentences for felony murder and criminal discharge of a firearm do not violate double jeopardy.
“Sims also raises this point for the first time on appeal. We said in State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993), that constitutional grounds asserted for the first time on appeal are not properly before the appellate court to review.
“Additionally, this issue has no merit as we have stated numerous times that where the same act or transaction violates two distinctly different statutory provisions, the test to be applied to determine if there are one or two crimes is whether each statute requires proof of an element the other crime does not. Where one statute requires proof of an additional or different element, the crimes are not the same, even though the proof of the crimes may substantially overlap. See State v. Dunn, 243 Kan. 414, 432-33, 758 P.2d 718 (1988).
“Pursuant to K.S.A. 21-3436, a large number of underlying felonies may support a felony murder charge. It is well-established law in Kansas that multiple convictions and punishments for both felony murder and the underlying felony do not violate double jeopardy. In State v. Holt, 260 Kan. 33, 46, 917 P.2d 1332 (1996), we cited a long list of cases where we have upheld separate convictions for both. This issue was not only improperly raised, but is also without any merit.” 262 Kan. at 173.
Cleave acknowledges that Essex previously raised this issue on appeal to this court without success. However, Cleave claims that he is asserting this issue again on appeal, because he believes that this court’s ruling in Essex’s appeal was in error. Cleave asks this court to reconsider its ruling in Essex’s appeal and grant him relief under this issue. We decline to do so.
Just as in Essex’s case, this double jeopardy issue was not raised to the trial court and is not properly before this court on appeal. See Sims, 262 Kan. at 173 (citing State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 [1993]). As such, this issue fails.
Affirmed. | [
112,
-22,
-39,
-97,
25,
97,
120,
56,
112,
-14,
-28,
-13,
13,
-55,
69,
106,
125,
125,
85,
105,
85,
-73,
39,
-63,
-78,
-77,
-101,
-43,
-77,
-39,
-1,
-2,
8,
112,
-54,
69,
102,
10,
101,
120,
-114,
12,
-87,
113,
-40,
18,
-94,
46,
126,
7,
49,
28,
-5,
42,
30,
-126,
73,
40,
75,
-67,
-111,
57,
-53,
-121,
-2,
34,
-77,
5,
-98,
39,
-48,
46,
-48,
56,
0,
104,
120,
-124,
-128,
116,
101,
-119,
12,
38,
114,
38,
25,
-52,
-3,
-127,
78,
126,
-121,
7,
-104,
1,
65,
44,
-106,
-97,
122,
52,
42,
-10,
104,
92,
90,
108,
-121,
-57,
-80,
-111,
77,
52,
-106,
-6,
-21,
37,
32,
97,
-49,
-22,
76,
-43,
124,
-45,
26,
-44
]
|
The opinion of the court was delivered by
Nuss, J.:
This case involves the inevitable discovery doctrine. A jury convicted Wilson Ingram of aggravated battery, possession of cocaine, possession of marijuana, and failure to have a tax stamp affixed. In an unpublished decision dated February 14, 2003, the Court of Appeals held that the police illegally searched Ingram to find the drugs but remanded for the district court to determine whether the evidence would have been inevitably discovered.
On remand, the district court determined that the drugs would have been discovered when Ingram was brought to the jail for questioning about the aggravated battery. In another unpublished decision dated September 3, 2004, the Court of Appeals affirmed the district court. We granted Ingram’s petition for review pursuant to K.S.A. 20-3018(b).
The sole issue on appeal is whether the district court correctly held that the evidence would have been inevitably discovered. We answer “yes” and affirm the Court of Appeals and the district court.
FACTS
Wilson Termaine Ingram II was arrested following an incident during the early morning hours of September 2, 2000, in Manhattan in which Matthew Siebrandt was stabbed in the groin. When police officers found Ingram, they handcuffed him and searched his pockets, finding three rocks of crack cocaine and marijuana.
On March 12, 2001, Ingram filed a motion to suppress the drug evidence. At the hearing on the motion, the State presented evidence through the testimony of Sergeant Steve Boyda and Officer Gretchen Bertrand.
According to Boyda, at 4:20 a.m. on September 2, he received a dispatch that a stabbing had occurred at the University Commons apartment complex at 2215 College Avenue. Dispatch also informed him that the suspect, who was described as a black male in a Hawaiian shirt and dark blue jean shorts, was being chased to the north of the complex by several people who had been at the stabbing scene.
Boyda drove to an area north of the complex and waited. He soon saw a black male wearing a Hawaiian shirt and dark colored jean shorts (Ingram) running north between two homes. Boyda drove toward Ingram, got out of his car, and yelled, “Police, stop.” Ingram slowed to a fast walk, but continued moving away from Boyda. When Boyda drew his weapon and told Ingram to get on the ground, Ingram complied. Ingram had his hands under his chest, and Boyda was concerned for his safety, not knowing if Ingram still had the weapon. Boyda told Ingram to take his hands out and stayed 10 feet away until Officer Bertrand arrived.
When Officer Bertrand arrived, Boyda told her to place Ingram in handcuffs because of a concern for the officers’ safety and because Boyda noticed that Ingram had a bloody lip, some blood on his shirt, and scratches on his forearms and legs. At this time, he believed that Ingram had been involved in the stabbing. Boyda instructed Bertrand to check Ingram’s pockets and told him to just calm down.
Boyda testified that while Ingram was still on the ground, Bertrand removed several large rocks of what appeared to be crack cocaine from one of Ingram’s front pockets. Bertrand did not find any weapons, so Boyda stood him up and advised him that he was under arrest for possession of a controlled substance and that he was being detained because Boyda believed he had been involved in the stabbing. Boyda then found small amounts of marijuana in Ingram’s pocket.
Based upon the man’s clothing, i.e., matching the description of the stabbing suspect, Boyda planned to transport him to the Riley County Police Department for further investigation. According to Boyda, Ingram would have been taken to the secure part of the facility, where a corrections officer would have performed an extensive check for weapons. While Boyda was not aware of any officer effecting a probable cause arrest of Ingram for the stabbing incident, he believed there was enough evidence to arrest Ingram for aggravated battery, i.e., Ingram would not have been free to go even if the drugs had not been found.
According to Officer Bertrand, she heard Sergeant Boyda state over the radio that he believed he saw the suspect running between two homes in the area. When she arrived, Boyda directed her to place handcuffs , on a black male he was holding at gunpoint in the prone position. Bertrand then handcuffed Ingram.
As Bertrand had approached Ingram and made further observations, she felt she had probable cause to believe that Ingram had committed the stabbing. He not only matched the description of the suspect veiy well, i.e., a black male with dark long baggy shorts and a Hawaiian shirt; but he also had blood spots on his shirt and jeans, his shorts were soaking wet, one of his eyes was swollen, he had blood on his lips and behind an ear, and he had scratch marks on his arms. It appeared to Bertrand that Ingram had been in a physical altercation and that his wounds were fresh.
The district court denied Ingram’s motion to suppress. A jury convicted Ingram of aggravated battery, possession of cocaine, possession of marijuana, and failure to have a tax stamp affixed.
Ingram appealed to the Court of Appeals, which held that the police illegally searched him to find the drugs. It remanded for district court determination of whether the evidence would have been inevitably discovered.
On remand, the district court held a hearing in which Sergeant Boyda again testified, elaborating upon his testimony at the suppression hearing. He stated that because Ingram was a stabbing suspect, he had instructed Bertrand to take Ingram to the jail side, and not the police department side, of the Riley County Law Enforcement Center (Center). Violent crime subjects are interviewed in the secure facility on the jail side. Boyda also testified that Ingram’s contraband played a part in his decision to have Ingram taken to the jail side. Moreover, Boyda was familiar with Ingram; Ingram had previously shot at a cab driver and there was an alert for officer safety because of his past actions.
Boyda testified that the procedures used when taking someone into the secure area required that he or she be searched for any weapons or contraband prior to being allowed in the interview rooms or in the main facility at the jail. After the person empties his or her pockets, the corrections staff confirms that all items have been removed from the pockets, shoes, and coat.
According to Boyda, Ingram was under arrest for the drug charges and was also being detained for questioning concerning the stabbing. Ingram was not arrested for the stabbing because the victim, Matthew Siebrandt, did not wish to file charges.
The complaint filed against Ingram 6 days later on September 8, 2000, did not include a charge of aggravated battery. According to Ingram’s counsel at oral arguments before this court, this charge was not made until some weeks later.
The district court held that despite Boyda’s testimony that he did not actually arrest Ingram for the aggravated battery, Ingram was essentially arrested because his freedom to leave was restricted for several hours. The court also concluded that had Officer Bertrand not ventured into Ingram’s pockets, the jailer would have done so when Ingram arrived at the jail. The drugs then would have been inevitably discovered. Ingram’s counsel then asked for a finding that the detention was supported by reasonable suspicion, but not by probable cause.
The district court stated:
“Well, let me just think through here. What do we know about this? The man is dressed as was reported, as I remember, he’s running north, he stops, he’s found to have blood on his shirt, he’s found to have a bloody lip, the officer knew him. . . . There probably toas not probable cause to arrest him,. There probably was reason to detain him, for questioning. And this is — this is where it gets really gray, the difference between an arrest and a detention. Now the words are batted back and forth and one supposedly doesn’t mean the other, but one often is the other. A lengthy detention is — can very well in my mind be considered to be an arrest as I believe this was in this case. And then he was ultimately released from that arrest.” (Emphasis added.)
The Court of Appeals concluded: “[T]here were many factors that indicated the drug evidence would have inevitably been discovered by lawful means.”
ANALYSIS
Issue: Did the district court err in holding that the evidence would have been inevitably discoveredP
The test under the inevitable discovery rule is that, if the prosecution establishes by a preponderance of the evidence that the unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible. State v. Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989) (citing Nix v. Williams, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 104 S. Ct. 2501 [1984]).
Ingram argues that the evidence should have been suppressed because, although it would have been discovered during the security search at the Center, he had not been arrested, and the police cannot search a suspect who simply has been brought into a secure facility for questioning. Ingram argues in the alternative that even if he had been arrested, no probable cause existed to support it. Accordingly, the drugs could not have been found by lawful means and the inevitable discovery doctrine would not appiy.
The State responds that had the drugs not been found at the scene, Ingram would have been subject to arrest for the aggravated battery based upon probable cause, and that the corrections staff would have found the drugs at the Center during the security search.
We acknowledge that absent probable cause or a warrant, a person cannot be forcibly taken to the police station and detained, although briefly, for investigative purposes. Hayes v. Florida, 470 U.S. 811, 816, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985). Such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause. Hayes, 470 U.S. at 816. However, Ingram was essentially arrested for the crime of aggravated battery, and probable cause supported his arrest. Accordingly, the subsequent security search at the Center was valid, and the drugs would have been inevitably discovered.
Our analysis begins with an acknowledgment that when reviewing any motion to suppress evidence, an appellate 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 appellate review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004). When, as here, the material facts are not in dispute, the suppression question is solely one of law. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).
Ingram first argues that he should not have been subject to a security search because he simply had been brought to the Center for questioning about the stabbing. We disagree. The detention under these circumstances is sufficiently like an arrest. See Hayes v. Florida, 470 U.S. at 816. More specifically, State v. Payne, 273 Kan. 466, 44 P.3d 419 (2002), contains numerous parallels to the instant case.
In Payne, a murder victim’s car which had been missing was found on the street several days after his death. The police surveiled the car and were instructed to bring anyone who tried to enter it to the police station. That night Payne got inside the car.
With guns drawn, one officer pulled Payne out of the car and placed him on his chest in the roadway while another handcuffed him. Another officer patted him down for weapons and retrieved a crack pipe. Payne was not told he was being arrested at that time, no arrest warrant had been issued, and none of the officers read him his Miranda rights. However, one officer felt he had enough probable cause to arrest Payne without a warrant while Payne was still in the car. When Payne asked why he was being taken into custody, he was simply told “for a suspicious death.” 273 Kan. at 468.
In support of his motion to suppress the crack pipe found at the scene, Payne argued that he had not been arrested because, among other things, two police officers testified that they did not believe it was an arrest. He contended that since he was not under arrest, since the officers were not armed with a search warrant, and since the officer had no probable cause to believe what he had felt in Payne’s pocket was a weapon, the act of reaching into his pocket was an intrusive, unwarranted, and illegal search.
The district court had ruled the police officers had not merely detained Payne but had essentially arrested him. We noted that an arrest is “the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime” whereas a' detention is a “temporary restraint of a person by a law enforcement officer.” (Emphasis added.) 273 Kan. at 472-73. We concluded that the police did more than temporarily restrain or detain Payne, stating:
“Nothing in the record indicates that officers would allow Payne to proceed to the station for further investigation on his own accord. As one officer noted, when you are taken out of a car at gunpoint, you are under arrest and you are not free to go.’ Payne admits that at that point, he was ‘no longer free to leave.’ Reviewing the totality of the circumstances, Payne’s freedom of movement was restrained to the degree associated with a formal arrest.” 273 Kan. at 473.
We hold that the police essentially arrested Ingram.
In the alternative, Ingram argues that no probable cause existed to support his arrest. When a motion to suppress is based upon an alleged lack of probable cause to arrest, we examine the totality of the circumstances from the standpoint of an objectively reasonable police officer. Ramirez, 278 Kan. at 407; Payne, 273 Kan. at 474-75; see Ornelas v. United States, 517 U.S. 690, 696, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). Whether the officers themselves believed they had probable cause is not determinative. See Ramirez, 278 Kan. at 407.
Determining whether probable cause to arrest exists under our undisputed facts affords us a de novo review. See Ramirez, 278 Kan. at 404; City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997) (undisputed information known to police officer sufficient to establish probable cause to arrest). Thus, the district court’s determination of no probable cause is entitled to no appellate deference.
Under Kansas law, a law enforcement officer can malee a warrantless arrest when he or she “has probable cause to believe that the person is committing or has committed a felony. K.S.A. 2003 Supp. 22-2401.” Ramirez, 278 Kan. at 405. There we observed:
“ ‘Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ” Ramirez, 278 Kan. at 405 (quoting State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2-3, 83 P.3d 794 [2004]).
A stabbing can qualify, among other things, as the felony crime of aggravated battery under K.S.A. 21-3414.
During our de novo review, we observe that the undisputed information available to the officers at the time of the incident is as follows. A person matching the description of the assailant in a stabbing — by gender, race, Hawaiian shirt, and dark blue jean shorts — was seen by Sergeant Boyda running in the direction away from the scene. The man’s running was also consistent with dispatch’s notification that the assailant was being chased by several people at the scene. When ordered to stop, the man merely slowed to a fast walk, away from the fight and Boyda. Once the suspect was' on the ground, Boyda noticed he had a bloody lip, blood on his shirt, and scratches on his forearms and legs. Like Boyda, Bertrand noticed the blood on his lip and shirt and scratches on his arms. She also noticed blood on his jeans and behind his ear, his swollen eye, and his soaking wet shorts. It appeared to Bertrand that the suspect had been in a physical altercation and that his wounds were fresh.
To paraphrase Ramirez, we hold that the totality of the circumstances within the law enforcement officers’ knowledge was sufficient to warrant a person of reasonable caution in the belief that the felony offense of aggravated battery had been committed by Ingram. Because we conclude that there was probable cause to arrest, any security search that was done at the Center was lawful. The State has shown by a preponderance of the evidence that the drugs found by Officer Bertrand at the scene would have been inevitably discovered by corrections officers at the Center. See State v. Waddell, 14 Kan. App. 2d 129, 784 P.2d 381 (1989) (drugs in defendant’s pants pockets illegally seized at scene would have been inevitably discovered by lawful means by the police during an inventory search at the jail); see also State v. Payne, 273 Kan. at 477 (motion to suppress crack cocaine found in defendant’s pocket in jail was denied because “the search of Payne’s person at the jail was a reasonable custodial search for weapons, means of escape, and evidence”).
The Court of Appeals is affirmed. The district court is affirmed.
Lockett, J., Retired, assigned. | [
-80,
100,
-4,
30,
58,
-63,
58,
48,
73,
-105,
-28,
115,
-87,
-53,
4,
121,
-45,
127,
116,
105,
-43,
-89,
107,
-63,
-78,
-13,
120,
-44,
-77,
-34,
108,
-67,
12,
100,
66,
85,
102,
76,
-23,
94,
-114,
53,
-128,
86,
82,
67,
36,
42,
-38,
15,
49,
28,
-13,
56,
17,
-117,
105,
45,
75,
-65,
80,
-7,
-119,
21,
-33,
22,
-77,
52,
-108,
-115,
-8,
26,
-40,
48,
0,
-24,
-70,
-74,
-126,
116,
101,
-103,
-92,
102,
98,
0,
41,
-83,
121,
-104,
46,
-81,
-49,
-89,
25,
73,
97,
45,
-106,
-67,
117,
86,
44,
-4,
123,
-50,
29,
108,
15,
-46,
-80,
-109,
-51,
112,
22,
-6,
-53,
45,
48,
112,
-57,
-94,
92,
116,
113,
27,
-54,
-105
]
|
The opinion of the court was delivered by
Davis, J.:
This appeal by the Department of Corrections and cross-appeal by the petitioner inmate involve two questions. The first question is whether the withholding of good time credits from the petitioner under regulations amended after the petitioner’s crime was committed violated the Ex Post Facto Clause of the United States Constitution. The second question is whether internal management policies adopted after die petitioner’s sentence, resulting in his loss of privileges, violates the petitioner’s due process rights under the United States Constitution. Both matters are questions of first impression before this court. We transferred this case from the Court of Appeals. Our jurisdiction is based upon K.S.A. 20-3017 and K.S.A. 60-2101(b).
The petitioner was tried by jury and convicted on May 10,1991, of the charge of rape, which arose out of circumstances occurring on September 9, 1990. He was sentenced to the Secretary of Corrections for a term of 10 to 20 years. He began serving his indeterminate sentence on May 18, 1991.
Prior to April 1994, the petitioner earned 100% of his authorized good time credits by remaining free of any prison offenses and by die discretionary grant of good time credits by the unit team manager. See K.A.R. 44-6-124 (1989). After April 1994, based upon the 1993 amendment to K.A.R. 44-6-124,100% of the petitioner’s potential good time credits (120 days) were withheld for his failure to sign an amended Sex Abuse Treatment Program (SATP) agreement. In August 1994, another 120 days of good time credits were withheld. Sixty days of good time credits were withheld in April 1995, and 120 days more were withheld in October 1995. In January 1996, 120 days of good time credits were again withheld.
Before the adoption of Internal Management Policies and Procedures (IMPP) 11-101 in 1996, the petitioner was entitled and had certain privileges during his incarceration, including but not limited to, the following: ownership and possession of a personal television and handicrafts, use of outside funds, canteen expenditures up to $140 a month, approved visitors, and incentive pay. After the adoption of IMPP 11-101, inmates were required to earn these privileges by generally remaining free of offenses and demonstrating a willingness to participate in recommended programs including, in the petitioner’s case, the SATP. Based upon the petitioner’s refusal to participate in SATP, he was placed at IMPP 11-101 Level I. At this level he was no longer allowed a personal television but did have access to general television, canteen expenditures were limited to $20 per month, incentive pay was reduced, and visitors were limited to immediate family.
After exhausting his administrative remedies, the petitioner filed a petition for writ of habeas corpus. He contended that the application of the 1993 amendment to K.A.R. 44-6-124 to him constituted an ex post facto violation and violated due process and that the withholding of good time credits based on his failure to comply with the SATP violated his Fifth Amendment rights. He also contended that the change in his prison conditions and loss of privileges as the result of his classification under IMPP 11-101, constituted a violation of the Ex Post Facto Clause of the United States Constitution.
The trial court narrowed the issues in pretrial conference to the following: the alleged Fifth Amendment violation, the ex post facto nature of the 1993 amendment to K.A.R. 44-6-124, the ex post facto nature of the application of the IMPP 11-101 system, and a claim that the actions of the respondents violated the Eighth Amendment.
The trial court held that the 1993 amendment to K.A.R. 44-6-124(g)(6), as applied to the petitioner who was sentenced in 1991, was an ex post facto law and void under the United States Constitution. The trial court denied any further relief. The Department of Corrections with other named respondents appeal, and the petitioner cross-appeals. For the reasons set forth below, we affirm the trial court.
There are two aspects of this appeal. The first aspect involves good time credits under state statutes and the Kansas Administrative Regulations. The Department of Corrections appeals the trial court’s determination that the 1993 amendment to K.A.R. 44-6-124(g)(6), as applied to the petitioner, is an ex post facto law. The petitioner cross-appeals, contending that the 1993 amendment violated his due process rights and that the trial court erred in determining that the withholding of good time credits for the petitioner’s failure to participate in the SATP did not violate his rights under the Fifth Amendment to the United States Constitution.
The second aspect of this appeal involves IMPP 11-101, adopted by the Department of Corrections in 1996 and applied to the petitioner, who was convicted and sentenced in 1991. The petitioner contended before the trial court that such application was ex post facto, although he has abandoned this claim on appeal. For the first time on appeal, he contends that application of the IMPP violates his due process rights. We consider this an important constitutional issue and elect to treat his contention even though he failed to address the matter before the trial court. See State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995).
Good Time Credits
In Kansas, the award of good time credits is authorized by law. See K.S.A. 21-4722; K.S.A. 22-3725. The manner in which such credits are earned, awarded, forfeited, withheld, and accumulated by individual inmates is governed by duly authorized regulations adopted by the Department of Corrections. Good time credits serve a useful purpose within our penal system by providing incentives for good behavior and inmate participation in remedial and rehabilitation programs, as well as sanctions for lack of performance and disobedience.
Two important dates are affected by the awarding, forfeiting, and withholding of good time credits. The first date is the date on which an inmate becomes eligible to be considered for parole. See K.S.A. 22-3717. The second date is the conditional release date, which is the date upon which an inmate is entitled to be released from incarceration. See K.S.A. 22-3718; Beck v. Kansas Adult Authority, 241 Kan. 13, 29-30, 735 P.2d 222 (1987).
Parole Eligibility
K.A.R. 44-6-124 (1989), in effect when the petitioner was convicted, provided in pertinent part:
“For parole eligibility, award of good time credits shall be limited as follows:
“(1) Inmates with no class I offenses during the review period shall receive at least 50% of good time credits allocated for that period.
“(2) Inmates with no class I or II offenses during the review period shall receive at least 60% of the good time credits allocated for that period.
“(3) Inmates with no class I, II or III offenses during the review period shall receive at least 70% of the good time credits allocated for that period.
“(4) Inmates with no class I, II, III or IV offenses during the review period shall receive at least 80% of the good time credits allocated for that period.
“(5) The balance of the credits above the percentages listed in paragraphs (a)(1) to (a)(4) shall be awarded by the unit team based on factors of good work, behavior, and on other performance factors related to effective rehabilitation of the inmate.”
The regulation further provided that the unit team had the discretion to refuse to award all or part of that portion of credits for which it had discretion, or 20% of the total available for cooperation or non-cooperation, including the inmate’s nonparticipation in programs. K.A.R. 44-6-124(b) (1989).
According to the provisions of K.S.A. 22-3717(a), an inmate “shall be eligible for parole after serving the entire minimum sentence imposed by the court, less good time credits.” Under the provisions of the regulation in effect at the time of the petitioner’s conviction, good time credits earned were applied to the inmate’s minimum sentence to determine the date he or she was eligible for parole. The more good time credits earned, the earlier the inmate became eligible for parole. As indicated above, the petitioner in this case earned 100% of available good time credit until application of the 1993 amendment to K.A.R. 44-6-124 discussed below.
Conditional Release Date
K.A.R. 44-6-108(c) (1989), which was also in effect when the petitioner was sentenced, stated in pertinent part that “[t]o establish the conditional release date, good time credits, not forfeited, shall be presumed earned and shall be applied to the maximum sentence term when first computed.” (Emphasis added.) Thus, an inmate’s conditional release date was computed based upon the presumption that he or she would earn all good time credits available under the system then in effect. These good time credits were then applied to the inmate’s maximum sentence, thereby fixing the time the inmate was entitled to be released from incarceration, the inmate’s conditional release date. Any forfeiture of good time credits because of institutional offenses after parole eligibility had been reached would result in the forfeited time being added to the inmate’s conditional release date up to the maximum sentence, thereby extending the time the inmate would be incarcerated. See K.A.R. 44-6-125(b) (1989).
Thus, credits for parole eligibility had to be actually earned under the system as it existed at the time the petitioner was convicted, while good time credits for the conditional release date were awarded at the outset of his sentence. For the purposes of earning parole eligibility, an inmate with no class I offenses during the review period would receive at least 50% of the good time credits for that period. An inmate with no class I, II, III, or IV offenses was guaranteed to receive at least 80% of the allocated good time credits. The balance of the credits were discretionary and could be awarded or not awarded for a variety of reasons, including failure to constructively participate in a program. See K.A.R. 44-6-124(b) (1989).
In addition, the petitioner’s conditional release date was set at the beginning of his sentence based upon the presumption that he would earn all available good time credits authorized by 22-3725. See K.A.R. 44-6-108 (1989). As the respondents state in their brief on appeal, “[a]t the time of petitioner’s crime, pursuant to K.S.A. 22-3725, he was entitled to have the opportunity to be able to earn a potential total of ten (10) years of good time credit off of his sentence.” Thus, the petitioner’s conditional release date was 10 years less than the maximum sentence of 20 years.
The 1993 amended version of K.A.R. 44-6-124(a) provided:
“For crimes, other than class A crimes, committed prior to July 1,1993, an inmate may earn good time credits which shall be subtracted from the minimum sentence in order to establish a parole eligibility date or the maximum sentence in order to establish the conditional release date.”
Moreover, K.A.R. 44-6-124(g) (1994) provided a marked change in awarding and withholding good time credits:
“(g) An inmate’s disciplinary record shall affect the earning of good time awards in the following manner.
“(1) A guilty finding of a class I disciplinary offense shall result in the withholding of a minimum of 50% of the good time credits available for that program classification review period.
“(2) A guilty finding of a class II disciplinary offense shall result in the withholding of a minimum of 25% but not more than 50% of the good time credits available for that program classification review period.
“(3) A guilty finding of a class III disciplinary offense shall result in the withholding of a minimum of 10% but not more than 25% of the good time credits available for that program classification review period. . . .
“(6) A pattern of refusal by an inmate to constructively work or participate in assigned programs shall result in the withholding of 100% of the good time credits for that program classification review period, unless the inmate is determined by the facility health authority to be physically or mentally incapable of working or participating in a particular program or detail.” (Emphasis added.)
The effect of the change on the petitioner was substantial. The trial court illustrated this point by incorporating into its memorandum decision the authorities and ruling of its earlier decision on the same issue, wherein it stated:
“Under the prior regulations, an inmate without a disciplinary violation was automatically awarded 80% of the good time credits available for the reviewperiod with the remaining 20% left to the discretion of the unit team. Under the current regulations, an inmate without a disciplinary violation, could lose 100% of the good time credit available because of failure to participate in a program; which is exactly the plight of the petitioner.”
The plight of this petitioner is the same. He refused to participate in the SATP, and under the provisions of K.A.R. 44-6-124(g)(6), his failure to participate “shall [and did] result in the withholding of 100% of the good time credits for that program classification review period.” (Emphasis added.) Under the system in effect when the petitioner was sentenced he, without offenses, was guaranteed 80% good time credits, while under the 1993 amendment, without offenses, 100% of his good time credits were withheld because of his failure to participate in the SATP. The change applied retrospectively, altering the method by which good time credits were awarded and forfeited or withheld. It is this withholding that altered penal provisions accorded by the grace of the Department of Correction in its regulations.
In addition to affecting his or her parole eligibility date, the application of K.A.R. 44-6-124 may also have an adverse effect upon an inmate’s conditional release date. K.A.R. 44-6-124 provides that
“[fjor crimes, other than class A crimes, committed prior to July 1,1993, an inmate may earn good time credits which shall be subtracted from the minimum sentence in order to establish a parole eligibility date or the maximum sentence in order to establish the conditional release date.” (Emphasis added.)
Effective March 1, 1995, the Department of Corrections adopted K.A.R. 44-6-142 (1996 Supp.), which provided in part:
“When computing the conditional release date, it shall be presumed that prior to March 1,1995,100% of the available good time credits were earned. On and after March 1, 1995, good time credits shall be awarded on an earned basis pursuant to K.A.R. 44-6-124 for the purpose of determining the conditional release date.”
The record is unclear whether good time credits were subtracted from the petitioner’s maximum sentence prior to March 1, 1995, to establish his conditional release date based upon the withholding of 100% for his failure to participate in the SATP. What is apparent is that in April 1994, pursuant to the 1993 amendment to K.A.R. 44-6-124,100% of the petitioner’s potential good time credits (120 days) were withheld for his failure to sign an amended SATP agreement. In August 1994, another 120 days of good time credits were withheld. Sixty more days of good time credits were withheld in April 1995, and 120 days more were withheld in October 1995. In January 1996, 120 days of good time credits were again withheld.
After March 1,1995, good time credits would no longer be presumed but would have to be earned. However, in the petitioner’s case, his failure to participate in the SATP resulted in the withholding of 100% of his good time credits. Thus, what was under the regulations in existence at the time the petitioner was sentenced a presumption that he earned all good time credits available, thereby setting his conditional release date, now becomes a matter that must be earned and is subject to 100% good time credits being withheld for failure to participate in the SATP. The respondents state in their brief:
“At the time of petitioner’s crime, pursuant to K.S.A. 22-3725, he was entitled to have the opportunity to be able to earn a potential total of ten (10) years of good time credit off of his sentence. The amendment to K.A.R. 44-6-124 did not change that, he still has the same amount of potential good time credit available, ten (10) years.”
However, prior to the 1993 amendment, the petitioner’s conditional release date was fixed by the presumption that all available good time credits were earned. This date could only be changed if he lost credits for committing offenses.
The United States Constitution’s ex post facto prohibition provides: “No Bill of Attainder or ex post facto Law shall be passed.” U.S. Const., art. 1, § 9, cl. 3; see art. 1, § 10, cl. 1. Its prohibition forbids legislative enactment of any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed. In order for a law to be considered ex post facto, two critical elements must be present. The law must be retrospective, applying to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). In Weaver, the United States Supreme Court noted:
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” 450 U.S. at 30-31.
Political subdivisions of a state, or quasi-legislative instrumentalities, exercising delegated legislative power are within the ambit of the Ex Post Facto Clause. 16A C.J.S., Constitutional Law § 409, p. 355. Administrative regulations adopted in accordance with the procedures set forth by the legislature have the force and effect of law in Kansas. See K.S.A. 77-425. This statute provides in part:
“Every rule and regulation other than a temporary rule and regulation which is filed by the state agency in the office of the secretary of state as provided in this act shall have the force and effect of law on and after the date prescribed in K.S.A. 77-426, and amendments thereto, until amended or revoked as provided by law and such amendment or revocation shall have become effective.”
The Kansas Department of Corrections is a state agency. In adopting regulations governing the granting, withholding, and forfeiture of good time credits, it acts as a political subdivision exercising delegated legislative power. As such, its regulations adopted are within the ambit of the Ex Post Facto Clause of the United States Constitution.
Weaver addressed the question of whether a change in Florida’s provisions for prison “gain-time credits” constituted an ex post facto law. The factual situation in Weaver is somewhat similar to the case at hand. Under Florida law, inmates were awarded a certain number of gain-time credits automatically simply for avoiding disciplinary infractions and for performing assigned tasks. 450 U.S. at 26. In 1978, however, the system was changed in that the number of gain-time credits awarded automatically was reduced, although extra gain-time credits were available to those inmates who performed meritorious and outstanding work. 450 U.S. at 26-27, 34-35.
The inmate in Weaver argued that this change in regulations constituted an ex post facto law, and the United States Supreme Court agreed. 450 U.S. at 27-28. In reaching this conclusion, the Court noted that the availability of gain time is one determinant in an inmate’s prison term and, thus, the prison term is altered when this determinant is changed. 450 U.S. at 32. The Court concluded that the Florida statute was applied retrospectively and further was disadvantageous to the petitioner and those persons similarly situated, saying:
“On its face, the statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner’s position must spend in prison. . . . Here, petitioner is . . . disadvantaged by the reduced opportunity to shorten his time in prison simply through good conduct.” 450 U.S. at 33-34.
The Court in Weaver stated that it did not matter that Florida’s new statutory scheme enabled the inmate to earn more good time credits through satisfying extra conditions. 450 U.S. at 35. The Court noted:
“The fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision [citation omitted], than he could for the same conduct under the new provision [citation omitted]. To make up the difference, the inmate has to satisfy the extra conditions specified by the discretionary gain-time provisions. Even then, the award of the extra gain time is purely discretionary, contingent on both the wishes of the correctional authorities and special behavior by the inmate, such as saving a life or diligent performance in an academic program.” 450 U.S at 35.
Accordingly, the Court found that the new regulations were ex post facto as applied to Weaver. 450 U.S. at 36.
Weaver was cited by the United States District Court for the Western District of Oklahoma in another case similar to the one at hand. See Spradling v. Maynard, 527 F. Supp. 398 (W. D. Okla. 1981). In Spradling, the statutes in effect prior to September 1976 provided a system similar to that in Kansas where good time credits were automatically applied to an inmate’s sentence, although they could later be forfeited for disciplinary infractions. Oklahoma then amended the system to one in which the inmate was forced to earn the credits. In finding that the change constituted an ex post facto law as applied to the complaining inmate, the court stated:
“It is clear from a reading of the provisions of § 138, as they existed prior to September 8, 1976 and as they exist at this time, that the amendment of that provision in 1976 required an inmate to ‘earn’ credits by satisfying certain conditions, whereas previously such credits were automatic, subject only to being forfeited at a later date for disciplinary reasons. As in Weaver, the 1976 amendment made more onerous the punishment for crimes committed before its enactment. Thus, under Weaver, petitioner, and others similarly situated, are entitled to the benefits of § 138 as it existed prior to September 8, 1976, i.e., the automatic ’’good time“ credits against sentences imposed for crimes committed before September 8, 1976 . . . .” 527 F. Supp. at 404.
The petitioner’s position is similar to those in Weaver and Spradling. At the time the petitioner was sentenced, he would, absent disciplinary infractions, earn 80% of his available good time credits, with the remaining 20% subject to discretionary award by the unit team manager. K.A.R. 44-6-124 (1989). While this .20% may have been forfeited for failure to participate in rehabilitation programs, no provision within the regulations in effect at the time the petitioner was sentenced related to the forfeiture or withholding of all available good time credits for such failure. These good time credits were applied to the petitioner’s minimum sentence of 10 years to determine his parole eligibility date.
After the adoption of the 1993 amendments to K.A.R. 44-6-124 which expressly applied to the petitioner, 100% of the petitioner’s good time credits were mandatorily withheld based upon his refusal to participate in the SATP. See K.A.R. 44-6-124(g)(6). The result in the petitioner’s case was to extend the time he would have to serve before being eligible for parole. Thus, the regulation as applied to the petitioner was retrospective in that it applied to events occurring before its enactment and it disadvantaged the offender affected by it. See Weaver, 450-U.S. at 29.
Moreover, the 1993 amendment to K.A.R. 44-6-124(g)(6), in conjunction with the 1995 amendment to K.A.R. 44-6-142, changed the way the petitioner’s conditional release date was determined. As the petitioner was convicted and began his sentence, he was presumed to earn all available good time credits or 10 years. See K.A.R. 44-6-108(c) (1989); K.A.R. 44-6-142 (1989). After the 1995 amendment he was required to earn good time credits, and his failure to participate in the SATP resulted in the loss of 100% of his good time credits as it related to his conditional release date. The effect upon the petitioner was to extend his conditional release date based upon his failure to earn good time credits because of his refusal to participate in the SATP. Again, the regulation as applied to the petitioner was retrospective in that it applied to events occurring before its enactment, and it disadvantaged the offender affected by it. See Weaver, 450 U.S. at 29.
Does it matter that the 1993 amendment to K.A.R.. 44-6-124(g)(6) uses the term “withholding” rather than “forfeiting”? In Gilmore v. McKune, 22 Kan. App. 2d 167, 169-70, 915 P.2d 779 (1995), the Court of Appeals found that there was a distinction between the withholding of good time credits and the forfeiture of good time credits, with the latter constituting a penalty but the former not doing so. The distinction by the Court of Appeals is that forfeited good time credits such as those for disciplinary actions may not be restored to the inmate while withheld good time credits may presumably be restored. However, whether the good time credits are withheld or forfeited, inmates under the prior systém are still subject to a loss of such credits for their failure to participate in the SATP in that good time credits which have already been awarded to them are withheld. Therefore, as to the petitioner and others similarly situated, the Court of Appeals’ decision in Gilmore does not apply.
The respondents argue that the recent decision of the United States Supreme Court in California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed: 2d 588, 115 S. Ct. 1597 (1995), changes the Weaver analysis and, therefore, should change the result in this case. In Morales, the Court addressed a statutory change which lengthened the period of time between parole hearings. The Court determined that the application of the increased time between parole hearings to inmates whose crimes were committed before the change did not constitute an ex post facto violation. 514 U.S. at 514. In doing so, the Court refined the ex post facto analysis, stating that rather than focusing on whether the change in the law worked to the disadvantage of the inmate, the focus should be on whether the change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. See 514 U.S. at 506-07, n.3.
Morales does refine the focus of the ex post facto analysis. However, Morales does not compel a contrary result with regard to the award of good time credits used to calculate conditional release in this case. The effect of the 1993 amendment was to force the petitioner to earn credits he had already been awarded, and for each good time credit the petitioner failed to earn, his conditional release date and, thus, the actual term of his punishment, would be extended. Thus, even under , the Morales analysis, the application of the 1993 amendment to those good time credits used to calculate the petitioner’s conditional release date would be ex post facto.
With regard to the award of good time credits used to calculate parole eligibility, the question is much closer. In Morales, the Court noted that the focus should not be on whether an amendment affects a prisoner’s “ ‘opportunity to take advantage of provisions for earlier release.’ ” 514 U.S. at 506-07, n.3. This would seem to suggest that if the effect of the 1993 amendment on the good time credits used to calculate parole eligibility is to merely alter the petitioner’s opportunity to take advantage of provisions for early release, it does not constitute an ex post facto application of law. However, the amendment we deal with in this case goes beyond merely allowing the petitioner an opportunity to take advantage of provisions for an earlier release date. The amended regulation actually forces the petitioner to engage in the required program or risk the loss of good time credits which would automatically be earned under the old system. As a result, it has a very direct effect on the petitioner’s parole eligibility and also constitutes an ex post facto application of law.
As a result, the district court was correct in determining that the application of the 1993 amendment to K.A.R. 44-6-124(g)(6) to the petitioner constituted an ex post facto application of law. The respondents’ appeal must fail. Based upon our conclusion, we need not address the questions raised by the petitioner’s cross-appeal regarding whether the 1993 amendment constitutes a denial of due process or a violation of the petitioner’s Fifth Amendment rights.
Internal Management Procedures- and Policies
The petitioner also contends in his cross-appeal that subjecting him to the IMPP 11-101 level system because of his failure to participate in the SATP violated his due process rights. In order to properly address this issue, some background on the level system created by IMPP 11-101 is necessary.
IMPP 11-101 is an internal management policy and procedure concerning offender privileges and incentives. Under IMPP 11-101, inmátes can earn certain priviléges, including television ownership, handicrafts, participation in organizations, use of outside funds, canteen expenditures, property, incentive pay, and visitation. Under IMPP 11-101, there are several levels of privileges. At Level I, the level at which the petitioner was placed following his refusal to participate in the SATP, the inmate may not have a personal television but has access to general television. Inmates at Level I are limited in activities, have limited expenditures at the canteen up to $20, may earn up to 600 per day in incentive pay, and may receive visitors from immediate family. At Level III, the highest level for inmates, the inmate may purchase a personal television, spend up to $140 in the canteen on a more extensive list of items, and may have any approved visitor.
In order to move from level to level, the inmate must remain free of class I or class II disciplinary reports and demonstrate a willingness to participate in recommended programs and/or work assignments for a full review cycle of a minimum of 120 days. An inmate may lose levels for disciplinary offenses and is automatically reduced to Level I in the event the inmate is terminated from a work program for cause, refuses to participate in a recommended program such as SATP, commits felony offenses, or has serious disciplinary offenses.
When an inmate loses levels, property items which the inmate is no longer authorized to have are removed from the facility. The first time an inmate is removed from Level II or III to Level I, unauthorized items purchased by the inmate at the canteen such as televisions, sound equipment, and large appliances are stored for the inmate at the facility and returned to the inmate when the inmate advances back to a level at which they are authorized. However, if the inmate is returned to Level I a second time or fails to advance to Level II at the earliest possible time, these items are removed from the facility.
When an item is removed from the facility, the inmate has the choice of having the item mailed to an address of the inmate’s choosing at the inmate’s expense or with the approval of the warden at the expense of the facility, donating the item to charity, having the property picked up by an authorized person, or having the property delivered to a local address by the facility upon the approval of the warden. At the time IMPP 11-101 was implemented on January 1,1996, all inmates currently incarcerated were placed at Level III, the highest level available. At this level, the inmates enjoyed the same privileges that existed prior to implementation of IMPP 11-101.
The petitioner contends that as the result of his nonparticipation in the SATP, he was made subject to IMPP 11-101 and reduced to Level I, with the result being that certain privileges and property that he had been allowed were taken away. He contends that this violated due process.
As we have already noted, the petitioner did not raise this argument before the district court. Instead, he argued that subjecting him to IMPP 11-101 was an ex post facto application which he appears to have abandoned. Ordinarily, issues not raised before the trial court cannot be raised on appeal. Ripley v. Tolbert, 260 Kan. 491, Syl. ¶ 6, 921 P.2d 1210 (1996). However, we have recognized an exception to this rule where consideration of the issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights. See State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995). As the due process issue raised in the petitioner’s appeal is an important one, we now address it.
The first step in this analysis is to determine whether the petitioner’s property interests were infringed upon. The petitioner contends that when he was reduced to Level 1, his personal property was confiscated.
The Court of Appeals has held that when inmates are afforded the opportunity to possess personal property, they enjoy a pro tected interest in that property that cannot be infringed upon without due process. Bryant v. Barbara, 11 Kan. App. 2d 165, 167-68, 717 P.2d 522, rev. denied 239 Kan. 693 (1986). This reasoning is sound, in that once an inmate owns certain property, the ownership of that property may not be taken from him or her without due process of law. However, there is a difference between the inmate’s ownership rights in the property and the inmate’s right to possess the property while in prison.
Under IMPP 11-101, when an inmate is reduced to Level I so that certain property which is in his or her possession may no longer be possessed by the inmate in prison, the property is not taken from his or her ownership. Instead, if this reduction to Level I is the first for the inmate, the property is stored at the institution until the inmate has either regained a level or failed to advance. If the inmate does regain a level, the inmate receives the property back. Otherwise, in every other case where the reduction to Level I is not the first such reduction for the inmate, the property must leave the institution. However, this does not deny the inmate ownership of the property. Instead, the inmate has the choice of having the item mailed to an address of the inmate’s choosing at the inmate’s expense or with the approval of the warden at the expense of the facility, donating the item to charity, having the property picked up by an authorized person, or having the property delivered to a local address by the facility upon the approval of the warden.
Courts have held that where an inmate has been allowed to send property the inmate owns but is not allowed to possess in prison from the institution to an address of his or her own choosing, the inmate has not been deprived of the property so as to implicate the due process clause. See Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991); Pryor-El v. Kelly, 892 F. Supp. 261, 271 (D.D.C. 1995). Thus, although the petitioner was not allowed possession of the property in the case at hand, he did not lose ownership of the property, and therefore there was no taking sufficient to implicate due process.
Next, this court must address whether the restrictions imposed by IMPP 11-101 infringed upon the protected liberty interest of the petitioner. The first question in this analysis is whether the petitioner had a liberty interest in being allowed to possess certain property or enjoy certain activities and status available to him at Level III but denied at Level I. In Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), the United States Supreme Court held that while states may under certain circumstances create liberty interests, these interests will be generally limited to freedom from restraint which imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. See Murphy v. Nelson, 260 Kan. 589, 600-01, 921 P.2d 1225 (1996).
The restrictions imposed at Level I do not impose an atypical or significant hardship on the petitioner in relation to the ordinary incidents of prison life. While the petitioner is denied the use of certain personal electronic equipment, this does not impose a significant hardship. Nor do the restrictions on purchases at the canteen or the types of purchases and personal property allowed constitute an atypical hardship. While Level I has a restriction on visitation, the United States Supreme Court has held that the denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). Also, while Level I imposes some incentive pay restrictions, it has been held that an inmate does not have a constitutionally protected interest in employment. See Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994). It is true that the test for whether a restriction is a significant hardship is not whether such restriction would violate due process on its own. See Sandin, 515 U.S. at 486. However, neither the restrictions on visitation or incentive pay constitute a significant or an atypical hardship on an inmate which would not have been contemplated in his or her original sentence.
As a result, the application of IMPP 11-101 to the petitioner does not violate due process.
Affirmed.
McFarland, C.J., dissenting. | [
16,
-8,
-35,
-1,
43,
-29,
58,
-104,
98,
-5,
-89,
83,
-95,
71,
4,
123,
-37,
103,
92,
105,
-37,
-73,
103,
-63,
-6,
-5,
-7,
-44,
-77,
79,
-20,
-108,
72,
-16,
-126,
113,
102,
-62,
103,
28,
-54,
7,
-102,
-55,
-15,
-128,
48,
42,
24,
-113,
49,
-97,
-85,
44,
16,
66,
33,
44,
89,
109,
0,
-71,
-14,
-123,
107,
52,
-77,
-121,
-67,
-59,
-48,
38,
-104,
-71,
0,
-24,
59,
-106,
-122,
-12,
99,
-119,
-124,
98,
98,
-96,
29,
-41,
44,
-104,
30,
22,
-99,
-58,
-103,
88,
107,
69,
-76,
-35,
118,
20,
47,
124,
-26,
5,
87,
109,
15,
-98,
-72,
-109,
77,
105,
-58,
-30,
-17,
49,
-112,
97,
-50,
-26,
92,
87,
123,
83,
-81,
-44
]
|
The opinion of the court was delivered by
Per Curiam:
The United States District Court for the District of Kansas certified two questions regarding the application of uninsured motorist coverage to a self-insured employer; (1) “Are [plaintiffs’] claims barred by the exclusive remedy provision of the Workers Compensation Act,” and (2) “In Kansas, is a self-insurer required to provide uninsured motorist benefits to the occupants of its motor vehicles”?
On September 15, 1997, Roger Kandt was involved in an automobile accident in Wichita, Kansas. At the time of the accident, Kandt was driving a motor vehicle owned by his employer, Southwestern Bell Telephone Company (SBC). The driver of the other vehicle was Roman Williams, an uninsured motorist.
As a result of the accident, on December 15, 1999, Kandt filed a lawsuit in state district court against Williams. On September 15, 2000, Kandt was awarded a judgment against the uninsured, Williams, in the amount of $593,229. At the time of the accident, Kandt had an individual policy of automobile insurance with Farmers Insurance Company, Inc. (Farmers). Farmers paid Kandt $100,000 of the judgment against Williams pursuant to the uninsured motorist coverage provided by its automobile insurance policy with Kandt.
In December 1997, Kandt filed a claim for workers compensation with SBC. The workers compensation claim was settled on March 21, 2002. As a result of the settlement, Kandt was awarded workers compensation benefits from SBC totaling $83,054.15, which consisted of temporaiy total and permanent partial disability compensation in the amount of $43,664.12, and medical and hospital expenses in the amount of $39,390.03.
On November 13, 2002, Farmers and Kandt filed suit against SBC, a self-insured entity under the laws of the State of Kansas, for $500,000. Kandt sought payment by SBC for the judgment entered against the uninsured motorist. Farmers sought reimbursement from SBC for the $100,000 it had paid to Kandt pursuant to the uninsured motorist provision of its automobile insurance policy.
On December 16, 2002, SBC removed this action on the basis of diversity jurisdiction from the district court of Sedgwick County to the federal district court of Kansas. Pursuant to K.S.A. 60-3201, this court may answer questions of law certified to it by a United States district court. The United States District Court for the District of Kansas certified two questions. The questions are: (1) Are plaintiffs’ claims barred by the exclusive remedy provision of the Workers Compensation Act, and (2) under Kansas law, is a self-insurer required to provide uninsured motorist benefits to the occupants of its motor vehicles? A certified question of law is reviewed using an unlimited standard. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 765, 986 P.2d 377 (1999).
To follow the order of the parties’ briefs and the decision of a majority of this court, we analyze the certified questions in reverse order from that posed by the federal district court.
Under Kansas law, is a self-insurer required to provide uninsured motorist benefits to the occupants of its motor vehicles P
To determine whether the Kansas uninsured/underinsured motorist (UM/UIM) statute applies to self-insured employers, we first look to the language of the statute. When interpreting the language of a statute, the fundamental rule is that the intent of the legislature governs if that intent can be ascertained. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Courts presume that the legislature expressed its intent through the language of the statute, so when a statute is plain and unambiguous, the court must give effect to the legislature’s intent as' it is expressed. 275 Kan. at 305. When interpreting a statute, ordinary words are given their ordinary meanings. A statute should not be read to add something that is not found in the plain words used by the legislature or delete something that is clearly found within the ordinary language used. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
The UM/UIM statute, K.S.A. 40-284, provides in pertinent part:
“(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured’s legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization. No insurer shall be required to offer, provide or make available coverage conforming to this section in connection with any excess policy, umbrella policy or any other policy which does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation or use of a specifically insured motor vehicle.”
Without addressing the language of the statute, Farmers and Kandt argue that Kansas courts have equated self-insured retentions with other insurance and concluded that self-insurers must be treated the same as insurers. To support this conclusion, they rely on AT&SF Ry. Co. v. Stonewall Ins. Co, 275 Kan. 698, 749, 71 P.3d 1097 (2003).
After review, we note that AT&SF Ry. Co. does not support Farmers and Kandt’s general conclusion that self-insureds must be treated like other insurers. In AT&SF Ry. Co., the issue was whether the insurance policies, which provided excess insurance, required indemnification of AT&SF for settlement payments it made to employees who had suffered work-related hearing loss. AT&SF claimed that its self-insured retentions (SIR’s) were not “other insurance” within the terms of its insurance policies and that the excess liability insurers’ policies, by contract, provided primary indemnification.
The AT&SF Ry. Co. court looked beyond the narrow definition of “insurance” to determine the purpose of the “other insurance” clause in AT&SF’s excess insurance policies. The court reasoned that it was unacceptable for AT&SF to “ ‘manipulate the source of its recovery and avoid the consequences of its decision to become self-insured’ ” by focusing on the literal interpretation of the word “insurance.” 275 Kan. at 749. Inherent in the AT&SF Ry. Co. court’s analysis was the court’s interpretation of the excess insurance policies rather than a general analysis of self-insurers. The court noted this limitation, stating: “We conclude that the SIRs are ‘other insurance’ within the meaning of the policies in the present case.” 275 Kan. at 749. Accordingly, AT&SF Ry. Co. does not provide a general conclusion regarding self-insurers that can be applied to this case.
SBC argues that the plain language of the statute applies only to purchased insurance policies and does not include self-insurers. SBC reasons that a certificate of self-insurance is not an automobile liability policy delivered or issued for delivery in this state because a self-insurer cannot contract with itself or pay premiums to itself. To support its conclusion that a certificate of self-insurance is not the same as an automobile liability insurance policy, SBC relies on Overbaugh v. Strange, 254 Kan. 605, 867 P.2d 1016 (1994). We also find that Overbaugh does not support this conclusion.
The Overbaugh court considered whether an out-of-state, self-insured employer was required to provide a defense for its negligent employee. The Overbaugh court concluded that the employer had not qualified as a self-insurer in Kansas because it had failed to file the necessary form with the Kansas Insurance Commissioner to be a self-insurer. As a result, the employer was required to comply with the requirements of K.S.A. 40-3107 (required contents for motor vehicle liability insurance policies) rather than K.S.A. 40-3104(f) (required coverage for self-insurers). 254 Kan. at 612. We conclude that Overbaugh does not determine whether an in-state, self-insured employer is equivalent to a motor vehicle liability insurer.
As noted by SBC, K.S.A. 40-284 refers specifically to an “automobile liability insurance policy.” We note that a policy of insurance is “[a]n instrument in writing, by which one party (insurer), in consideration of a premium, engages to indemnify another (insured) against a contingent loss, by making him a payment in compensation, whenever the event shall happen by which the loss is to accrue.” Black’s Law Dictionary 1157 (6th ed. 1990). SBC does not contract with itself or pay premiums to itself. Thus, SBC does not issue a policy of insurance.
A further review of the appropriate statutes reveals that our legislature has separately defined insurers and self-insurers. K.S.A. 40-3103(g) defines an insurer as “any insurance company, as defined by K.S.A. 40-201, and amendments thereto, authorized to transact business in this state, which issues policies of motor vehicle liability insurance covering liability arising out of the ownership, operation, maintenance or use of a motor vehicle.” K.S.A. 40-201 provides: “For the purposes of this article the term Insurance company’ shall, unless otherwise provided, apply to all corporations, companies, associations, societies, persons or partnerships writing contracts of insurance, indemnity or suretyship upon any type of risk or loss.”
K.S.A. 40-3103(u) defines a self-insurer as “any person effecting self-insurance pursuant to subsection (f) of K.S.A. 40-3104, and amendments thereto, or any non-resident self-insurer that has filed the form prescribed in subsection (b) of K.S.A. 40-3106, and amendments thereto.” K.S.A. 40-3104(f) provides:
“Any person in whose name more than 25 motor vehicles are registered in Kansas may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner of insurance. The certificate of self-insurance issued by the commissioner shall cover such owned vehicles and those vehicles, registered in Kansas, leased to such person if the lease agreement requires that motor vehicle liability insurance on the vehicles be provided by the lessee. Upon application of any such person, the commissioner of insurance may issue a certificate of self-insurance, if the commissioner is satisfied that such person is possessed and will continue to be possessed of ability to pay any liability imposed by law against such person arising out of the ownership, operation, maintenance or use of any motor vehicle described in this subsection. . . .
“Upon notice and a hearing in accordance with the provisions of the Kansas administrative procedure act, the commissioner of insurance may cancel a certificate of self-insurance upon reasonable grounds. Failure to provide liability coverage or personal injury protection benefits required by K.S.A. 40-3107 and 40-3109, and amendments thereto, or pay any liability imposed by law arising out of the ownership, operation, maintenance or use of a motor vehicle registered in such self-insurer’s name, or to otherwise comply with the requirements of this subsection shall constitute reasonable grounds for the cancellation of a certificate of self-insurance.. . .
“Self-insureds shall investigate claims in a reasonably prompt manner, handle such claims in a reasonable manner based on available information and effectuate prompt, fair and equitable settlement of claims in which liability has become reasonably clear.
“As used in this subsection, ‘liability imposed by law’ means the stated limits of liability as provided under subsection (e) of K.S.A. 40-3107, and amendments thereto.”
A self-insurer must be able to pay any liability assessed against it that is not greater than $25,000 due to bodily injury or death of one person from a single accident or not greater than $50,000 due to bodily injury or death of more than one person from a single accident. See K.S.A. 40-3104(f); K.S.A. 40-3107(e). Likewise, the self-insurer must be able to pay any liability of not greater than $10,000 due to the destruction of another person’s property in a single accident. K.S.A. 40-3107(e). We note that K.S.A. 40-3107 does not include UM/UIM coverage.
Since the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., was originally enacted, the legislature has limited the requirements for self-insurers. As. originally enacted, K.S.A. 40-3104 provided:
“Any person in whose name more than twenty-five (25) motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner of insurance. Upon application of any such person, the commissioner of insurance may issue a certificate of self-insurance, if the commissioner is satisfied that such person is possessed and will continue to be possessed of ability to pay any judgment obtained against such person arising out of the ownership, operation, maintenance or use of any motor vehicle registered in such person’s name.” (Emphasis added.) L. 1973, ch. 198, sec. 4(d).
The legislature’s use of the phrase “any judgment” in the original version of K.S.A. 40-3104(f) must be compared with the current statutory language which refers to “any liability imposed by law.” The addition of the term “liability” is significant to the meaning of the statute. Although a self-insurer was originally required to pay any judgment against it, the self-insurer is now only required to pay any liability judgments within established limits.
The legislature has not defined “liability” in the KAIRA. The term “liability” could be interpreted broadly to include any type of legal responsibility for damages due to bodily injury, death, or properly destruction, including any injuries to the persons occupying the self-insured vehicle or damages to the self-insured vehicle, regardless of fault. See Black’s Law Dictionary 914 (6th ed. 1990). A broad definition would include UM/UIM coverage because fault would not be probative on the issue of liability. The legislature’s use of the phrase “arising out of’ in K.S.A. 40-284 and K.S.A. 40-3104(f) supports a broad definition.
However, a careful review of the language in K.S.A. 40-284 indicates that the legislature has defined “liability” narrowly to include only the damages caused by accident and arising out of the ownership, operation, maintenance, or use of the self-insurer’s vehicle. In K.S.A. 40-284, the legislature refers to an “automobile liability insurance policy” and states that such policy must have a provision for UM/UIM coverage with limits equal to tire “limits of liability coverage for bodily injury or death.” (Emphasis added.) By requiring the UM/UIM coverage to have the same Emits as the liability coverage, the legislature distinguishes the two. If the legislature considered liability coverage broadly to incorporate UM/ UIM coverage, there would be no need to require equivalent coverage limits because they would already be the same. This narrow definition of “liability” depends on fault. Black’s Law Dictionary defines liability insurance as “[t]hat type of insurance protection which indemnifies one from liability to third persons as contrasted with insurance coverage for losses sustained by the insured.” Black’s Law Dictionary 915 (6th ed. 1990). Thus, liability only results when the self-insured vehicle causes the injuries or damages. UM/UIM coverage, by its very name, requires the fault to he with the other vehicle, not the self-insured vehicle. Accordingly, the legislature has not incorporated UM/UIM coverage in the term “any liability imposed by law” as used in K.S.A. 40-3104(f).
Furthermore, the legislature’s distinction between liability insurance and UM/UIM coverage is further emphasized by the organization of the statutory requirements. Not only are the UM/ UIM requirements in a separate statute, they also appear in separate legislative acts that preceded the KAIRA. See L. 1968, ch. 273 (K.S.A. 40-284); L. 1973, ch. 198 (K.S.A. 40-3101 et seq.). We note that when the legislature enacted the KAIRA, it did not incorporate K.S.A. 40-284 into the KAIRA, but left K.S.A. 40-284 in the general statutes pertaining to insurers and insurance policies. See K.S.A. 40-201 et seq. If the legislature had intended for self-insurers to comply with K.S.A. 40-284, it would have specifically included that requirement in K.S.A. 40-3104(f). Accordingly, the answer to the federal district court’s question is NO, self-insurers in Kansas are not required to provide UM/UIM coverage to the occupants of its motor vehicles.
Our analysis of the legislation affecting self-insurers and UM/ UIM coverage reveals four premises that support the conclusion that the legislature intended to treat self-insurers and insurers differently. First, the legislature, when enacting K.S.A. 40-284, used specific language which refers to an “automobile liability insurance policy.” Second, our legislature defined insurer and self-insurer differently without stating that self-insurers were equivalent to insurers. Third, the statutory language implies a narrow definition of Lability and limits the requirements for self-insurers. Fourth, the UM/UIM statute was placed in the general statutes pertaining to insurers rather than in the KAIRA.
Based on our analysis of the applicable statutes, the legislature articulated its intent to treat self-insurers differently than insurers. Thus, the requirements for insurers cannot be applied to self-in surers without a specific statement of the legislature. The legislature has outlined specific requirements for self-insurers and did not include a requirement that self-insurers provide UM/UIM coverage.
Are plaintiffs’ claims barred by the exclusive remedy provision of the Workers Compensation Act?
Because this court’s analysis determined that a self-insurer is not required to provide UM/UIM coverage, we will not address the federal district court’s question regarding the exclusivity of workers compensation.
Certified question one is not addressed; certified question two is determined and the answer is no.
Gernon, J., not participating. | [
-76,
104,
-16,
-113,
8,
-24,
50,
-118,
121,
-75,
-92,
83,
-23,
-51,
-107,
105,
-25,
-107,
65,
99,
-41,
-93,
19,
-125,
-46,
-69,
-21,
-51,
-72,
91,
126,
62,
77,
48,
10,
-41,
-90,
-62,
-51,
28,
-54,
6,
-87,
-8,
-99,
65,
-68,
-22,
82,
69,
113,
-99,
49,
58,
18,
-61,
44,
40,
91,
101,
-63,
-16,
-54,
7,
127,
18,
3,
4,
-104,
47,
-46,
14,
-112,
-72,
104,
-20,
82,
-90,
-62,
36,
51,
-103,
-128,
102,
98,
48,
17,
-51,
-20,
-72,
6,
-3,
15,
-124,
-98,
-7,
11,
10,
-105,
31,
126,
22,
6,
-4,
-4,
93,
15,
-19,
3,
-114,
-112,
-111,
-17,
116,
21,
-93,
-25,
-57,
-74,
97,
-54,
-14,
94,
-57,
122,
-97,
-46,
-66
]
|
The opinion of the court was delivered by
Abbott, J.:
This is an original proceeding in quo warranto. The action was filed by Wyandotte County District Attorney Nick Tomasic, seeking rulings concerning the proposed construction of an auto race track facility and related projects in Wyandotte County. Respondent is the Unified Government of Wyandotte County/ Kansas City, Kansas.
In general, relator seeks (1) a determination that some of the amendments to the urban redevelopment statutes, K.S.A. 12-1770 et seq., (also sometimes referred to as the tax increment financing statutes) contained in L. 1998, ch. 17 are unconstitutional, (2) an order prohibiting the Unified Government from exercising its powers under those amendments to develop the proposed auto race track facility and related projects within Wyandotte County, (3) a determination that certain provisions found in the Development Agreement (Agreement) between Kansas International Speedway Corporation and the Unified Government violate the State’s Cash Basis Law as well as the full faith and credit provision found in L. 1998, ch. 17, § 3, and (4) a determination that the Unified Government has been acting in violation of state law by acquiring interests in real property in furtherance of the auto race track redevelopment project prior to the adoption of a redevelopment plan and a relocation assistance plan.
FACTS
The facts involving recent preparations for this proposed auto race track facility are not in dispute and were presented by the parties in a stipulation of facts and agreed-upon record. In early 1997, International Speedway Corporation (ISC) approached the City of Kansas City, Kansas, the predecessor of the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government), and expressed an interest in constructing a super speedway auto race track facility within its jurisdictional boundaries. Following several meetings between the representatives of the Unified Government and ISC, ISC created a wholly owned Kansas subsidiary corporation named Kansas International Speedway Corporation (KISC).
KISC and the Unified Government entered into the Agreement on December 16, 1997, which established a plan for the development of the auto race track facility. The Agreement set forth the obligations of the parties; established dates for accomplishing certain actions in furtherance of the project; contained covenants, warranties, and conditions precedent; and established termination rights, events of default, and remedies for breach of the Agreement. One of the conditions precedent was the adoption of a tax increment financing plan. Another was the requirement that certain portions of the urban redevelopment/tax increment financing statutes be amended. Among other things, these statutes authorize cities to exercise specified redevelopment powers in designated areas, including areas designated by the Secretary of the Kansas Department of Commerce and Housing (KDOCH) as major tourism areas of the State. Financing of the auto race track facility was to proceed, in large part, pursuant to these statutes.
The Agreement also provided for the formation of a committee to establish procedures for the acquisition of property interests necessary for the project and gave the committee the authority to hire an acquisition/relocation consultant. The committee consists of two representatives from KISC and two representatives of the Unified Government. The Agreement also provided for the establishment of an escrow account to pay certain costs incurred in connection with the project prior to the issuance of special obligation bonds. KISC, the Unified Government, and the State of Kansas pooled certain funds together in the escrow account. The escrow funds, although separated for accounting purposes, have been commingled and have been used for pre-acquisition services, such as appraisal and title work. Although a final redevelopment plan has not been approved, money from the pooled account has been transferred to a title company and will be used to pay homeowners upon their execution of a contingent real estate contract. For internal accounting purposes, funds taken from the pooled account to pay for such option contracts were assessed against KISC’s contribution to the joint funds.
During the 1998 legislative session, the legislature amended portions of the urban redevelopment statutes. The amended statutes became law when published in the Kansas Register on February 26, 1998.
In general, and as relevant to the matter at hand, the amendments to the urban redevelopment statutes contained in L. 1998, ch. 17 do the following:
(1) state that one of the purposes of the urban redevelopment statutes is to assist in the redevelopment of a “major tourism area,” as that term is defined in L. 1998, ch. 17, § 3(a)(1)(D);
(2) establish the boundaries for a redevelopment district in Wyandotte County that will contain an auto race track facility; require completion of the redevelopment project connected with the auto race track facility within 30 years; extend from 20 to 30 years the maximum maturity of special obligation bonds issued to finance an auto race track facility; provide for an exemption from property taxation for all property, both real and personal, constituting an auto race track facility for a period of 30 years, if certain determinations are made by the city; and allow the inclusion within a major tourism area of an additional 400 acres of property for development, upon certain findings by the Governor and subject to certain rules (L. 1998, ch. 17, § 2, amending various subsections of K.S.A. 1997 Supp. 12-1771);
(3) allow the Secretary of KDOCH to find that a redevelopment project will create a major tourism area of the state if the redevelopment project will consist of at least $100 million in capital improvements and the project constructed will be an auto race track facility (thereby setting die stage for tax increment financing of the project through issuance of special obligation bonds); and define the term “auto race track facility” (L. 1998, ch. 17, § 3, amending various subsections of K.S.A. 1997 Supp. 12-1774);
(4) specify that, prior to the exercise of eminent domain power, “the city shall offer to the owner of any property which will be subject to condemnation with respect to any redevelopment project, other than one which includes an auto race track facility, compensation in amount equal to the highest appraised valuation amount determined for property tax purposes by the county appraiser for any of the three most recent years next preceding the year of condemnation” and, upon condemnation, an additional amount equal to 25% of the condemnation or damage award (L. 1998, ch. 17, § 5, amending subsection [a] of K.S.A. 1997 Supp. 12-1773); and
(5) specify that relocation assistance payments, with respect to any redevelopment project other than one which includes an auto race track facility, shall not be less than $500 (L. 1998, ch. 17, § 6, amending K.S.A. 12-1777).
The statutes which are the primary focus of this action are as follows:
L. 1998, ch. 17, § 2(e), amending K.S.A. 1997 Supp. 12-1771(e) and setting boundaries of the major tourism area.
L. 1998, ch. 17, § 2(h), amending K.S.A. 1997 Supp. 12-1771(h) and setting a 30-year maximum period for special obligation bonds for an auto race track facility.
L. 1998, ch. 17, § 2(1), amending K.S.A. 1997 Supp. 12-1771(1) and allowing for the development of an additional 400 acres upon findings by the Governor.
L. 1998, ch. 17, § 5, amending K.S.A. 1997 Supp. 12-1773 and requiring adoption of a redevelopment plan prior to acquisition of property and imposing a 25% premium requirement.
L. 1998, ch. 17, § 3(a)(1)(D), amending K.S.A. 1997 Supp. 12-1774(a)(1)(D) and indicating an auto race track facility may be a major tourism area of the state and requiring findings by the Secretary of KDOCH.
L. 1998, ch. 17, § 3(b)(1), amending K.S.A. 1997 Supp. 12-1774(b)(1) and prohibiting the issuance of full faith and credit bonds for a major tourism area.
L. 1998, ch. 17, § 6, amending K.S.A. 12-1777 and requiring adoption of a relocation assistance plan prior to initiation of the redevelopment project.
On March 5,1998, the Unified Government adopted Resolution R-17-98 pursuant to K.S.A. 1997 Supp. 12-1771(a), as amended, designating the area in Wyandotte County within the following boundaries as a major tourism area:
Beginning at the intersection of Interstate 70 and Interstate 435; west along Interstate 70 to 118th Street; north along 118th Street to State Avenue; northeasterly along proposed relocated State Avenue to 110th Street; north along 110th Street to Parallel Parkway; east along Parallel Parkway to Interstate 435; south along Interstate 435 to Interstate 70.
These boundaries coincide with the boundaries established by L. 1998, ch. 17, § 2(e).
Part of the Unified Government’s resolution also requested the Secretary of KDOCH to approve this area, pursuant to L. 1998, ch. 17, § 3(a)(1)(D), as a major tourism area of the state.
Also on March 5, 1998, foe Unified Government set a March 19, 1998, date for a public hearing to consider foe establishment of á “Prairie-Delaware Redevelopment District” in foe area it had designated as a major tourism area. The Redevelopment District was to include the proposed auto race track facility site, a proposed multi-use 400 acre parcel of land adjacent to and towards the north and east of the proposed auto race track site, and a small section of residential land adjacent to and towards the southwest of the race track site.
On March 19, 1998, pursuant to L. 1998, ch. 17, § 3(a)(1)(D), the Secretary of KDOCH found that the proposed redevelopment area, i.e., the area designated by the Unified Government as a major tourism area, was also a major tourism area of the state. The same day, the Governor, pursuant to L. 1998, ch. 17, § 2(1), found that the development plan and each project within the additional 400-acre area of the proposed Redevelopment District, excluding roads and highways, would enhance the major tourism area of the state.
At the conclusion of its March 19, 1998, public hearing, the Unified Government adopted a resolution finding that the Redevelopment District was within the major tourism area of the state. (Resolution R-24-98.) The Unified Government, in accordance with L. 1998, ch. 17, § 2(e), then passed Ordinance No. 0-11-98, which established the Redevelopment District. The boundaries of the Redevelopment District are coterminous with the boundaries of the major tourism area of the state.
On April 15, 1998, the acquisition/relocation consultant, nominally on behalf of KISC, began making real estate offers to property owners within the Redevelopment District to privately acquire an option to purchase their properties. The offers include, in addition to the amount specified by L. 1998, ch. 17, § 5(a) that would be awarded if the properties were condemned, the 25% additional amount established by L. 1998, ch. 17 for owners whose property is condemned as the result of the construction of an auto race track facility. The offers also include an incentive fee that differs in value based on the category of owner or occupant to whom the offer is made and when the offer is accepted.
Shortly after the acquisition/relocation consultant began making real estate offers in furtherance of the project, relator filed his petition for writ of quo warranto, asking this court to exercise its original jurisdiction and determine the several issues presented in this case. In support, relator asserted the need for an early, immediate, and final resolution by this court of the important legal issues presented and noted the importance of the questions relative to displacement of residents in the proposed redevelopment area and to the economic growth and development of the City of Kansas City, Wyandotte County, and the entire state of Kansas. After consideration of the petition and memorandum in support, this court, as a matter of discretion, consented to hear and determine these issues.
STANDARD OF REVIEW
Some of the general rules of state constitutional construction were recently reiterated in State ex rel. Stephan v. Parrish, 257 Kan. 294, 297-98, 891 P.2d 445 (1995) (quoting State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 ([1978]):
“ ‘It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. [Citations omitted.]
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
“ ‘In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]
“ ‘Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]
“ ‘Courts do not strike down legislative enactments on the mere ground they fail to conform with a strictly legalistic definition o[r] technically correct interpretation of constitutional provisions. The test is rather whether the legislation conforms with the common understanding of the masses at the time they adopted such provisions and the presumption is in favor of the natural and popular meaning in which the words were understood by the adopters. [Citations omitted.]
“ ‘The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere. [Citations omitted.]’ ”
1. Public Purpose
Initially, the relator contends that the development of an auto race track facility is not a valid public purpose for which tax increment financing (TIF) bonds and special obligation (STAR) bonds, issued pursuant to K.S.A. 12-1774(a)(l), may be issued and for which eminent domain authority may be exercised. If, however, the purpose is found to be a valid public purpose, the relator contends that the issuance of such bonds and the exercise of eminent domain authority for such a purpose are nevertheless unconstitutional, as violative of the Equal Protection Clauses of both the Kansas and United States Constitutions, because (I) there is no rational basis for limiting the “major tourism of the State” classification to the development of an auto race track facility in Wyandotte County to the exclusion of other forms and locations of tourism, (2) there is no rational basis for allowing special obligation bonds used solely to finance an auto race track facility to have a maximum maturity of 30 years while limiting other urban redevelopment special obligation bonds to a maximum maturity of 20 years, and (3) the amendments contained in L. 1998, ch. 17 fail to provide sufficient standards for the Governor to make appropriate determinations regarding either the economic feasibility of the project or the enhancement of a major tourism area.
Relator argues that this auto race track redevelopment project has no valid public or governmental purpose because it amounts to nothing more than a private entity, i.e., KISC, cloaking itself with vestiges of eminent domain authority to benefit its own financial well-being. Relator further argues the government has no purpose or compelling reason for its involvement in this area.
This court has held that there is no precise definition of what constitutes a valid public use, and what may be considered a valid public use or purpose changes over time. Ullrich v. Board of Thomas County Comm’rs, 234 Kan. 782, 789, 676 P.2d 127 (1984). Further, this court has noted that as long as a governmental action is designed to fulfill a public purpose, the wisdom of the govern mental action generally is not subject to review by the courts. Duckworth v. City of Kansas City, 243 Kan. 386, 389, 758 P.2d 201 (1988).
In Mid-America Pipeline Co. v. Lario Enterprises, 716 F. Supp. 511 (D. Kan. 1989), rend on other grounds 942 F.2d 1519 (10th Cir. 1991), the United States District Court for the District of Kansas found that the taking of private property for use as an auto race track facility was a valid public purpose:
“Plaintiff has suggested that eminent domain does not apply to these facts because [Heartland Park Topeka - the motor sports racing facility] does not constitute a public use of land. In this connection, plaintiff notes the substantial private interest of defendant Lario in the project. The court disagrees with plaintiff’s contention for two reasons. First, the City has a major interest in this project. . . . Second the development of recreational facilities and the facilitation of economic development in partnership with private enterprise have been considered legitimate public purposes for the exercise of eminent domain and the expenditure of public money. See Ottawa Hunting Ass’n v. State, supra, 289 P.2d at 758 (condemnation of private property for fish and game preserve considered an effort to improve recreational facilities for state’s citizens); Duckworth v. City of Kansas City, 243 Kan. 386, 758 P.2d 201 (1988) (loan from city to private developer to remodel downtown building promotes public purpose of economic revitalization); State v. City of Topeka, 176 Kan. 240, 270 P.2d 270 (1954) (city may condemn land for parking facility and lease the facility to a private corporation); Frum v. Little Calumet River Basin Development Authority, 518 N.E.2d 809, 811 (Ind. App. 1988) (eminent domain approved for construction of marina to be leased to a private party); State v. Daytona Beach Racing & Recreational Facilities Dist., 89 So. 2d 34 (Fla. 1956) (bond money for racetrack to be operated by private corporation not less than six months a year for 40 years furthers public purposes of increasing trade and providing recreation).” 716 F. Supp. at 517-18.
In State, ex rel., Fatzer v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 438, 296 P.2d 656 (1956), this court stated:
“It is elementary that the legislature possesses no power to authorize the appropriation of one’s property for a private use or purpose, but it is equally well-settled that the right to take private property for a public use is inherent in the state, and that the legislature may authorize the acquisition and appropriation of private property for a public use provided the owner is compensated therefor. [Citation omitted.] The difficulty often encountered lies in the inability of courts comprehensively to define the concept of a public use or purpose, due, no doubt, to the exigencies shown by the facts and the diversity of local conditions and circumstances in an everchanging world.
“In our opinion the concept of the terms public purpose, public use, and public welfare, as applied to matters of this kind, must be broad and inclusive. . . . The mere fact that through the ultimate operation of the law the possibility exists that some individual or private corporation might make a profit does not, in and of itself, divest the act of its public use and purpose.”
We hold the development of the auto race track facility and related projects are valid public purposes for which TIF and STAR bonds may be issued and eminent domain authority exercised.
2. Major Tourism Area of the State
Relator next argues there is no rational basis for limiting the major tourism area of the state classification to the development of an auto race track facility to the exclusion of other forms and locations of tourism. In order for the Unified Government to issue bonds for this project, the Secretary of KDOCH must find that the project will create a “major tourism area within the state.” L. 1998, ch. 17, § 3(a)(1)(D) in part provides:
“In making a finding that a redevelopment project will create a major tourism area within the state, the secretary must conclude at least: (i) That capital improvements costing not less than $100,000,000 will be built in the state to construct a project for such major tourism area; and (ii) that the project constructed will be an auto race track facility. An auto race track facility means (i) an auto race facility and facilities directly related and necessary to the operation of an auto race track facility including, but not limited to, grandstands, suites and viewing areas, concessions and souvenir facilities, catering facilities, visitor and retail centers, signage and temporary hospitality facilities; but excluding (ii) hotels, motels, restaurants and retail facilities not included in (i).”
Relator argues that because this statute limits a redevelopment project, based on a characterization that the area is a major tourism area of the state, to the development of this particular auto race track facility in Wyandotte County, it violates the equal protection requirements of both the United States and Kansas Constitutions because there is no reasonable or rational basis for such a limitation. Relator further argues that the limitation establishes an improper distinction between the promotion of this particular auto race track facility and any other auto race track facility or potential major tourism area that could be developed in other areas of the state.
The issue here is not whether there is a rational basis for the exclusion of certain forms of tourism from the definition of a “major tourism area” but, instead, whether the classification established by the legislature’s inclusion of auto race track facilities in the definition of a major tourism area bears a rational relationship to the purpose of the legislation. Encouraging the location of auto race track facilities in the state of Kansas will, in fact, promote, stimulate, and develop the economic welfare of the state and its communities and assist in the development and redevelopment of major tourism areas, both of which are purposes of the urban redevelopment statutes. There is no equal protection violation merely because incentives for other segments of the tourism industry would also rationally relate to the purposes of the urban redevelopment statutes. Relator misconstrues the amendments contained in L. 1998, ch. 17 because the amendments do not distinguish between this proposed auto race track facility and any other auto race track facility or potential major tourism area that could be developed in other areas of the state.
We hold the inclusion of an auto race track facility in the definition of a “major tourism area” bears a rational relationship to the furtherance of the economic development of the state. The amendments do not make a distinction between an auto race track facility in Wyandotte County and one in another area of the state.
3. The Bonds
Relator next argues another improper distinction results due to the following language of L. 1998, ch. 17, § 2(h):
“The maximum maturity on bonds issued to finance projects pursuant to this act shall not exceed 20 years except that: (1) Such maximum period of special obligation bonds not payable from revenues described by subsection (a)(1)(D) of K.S.A. 12-1774, and amendments thereto issued to finance an auto race track facility shall not exceed 30 years; and (2) such maximum period, if the governor determines and makes and submits a finding to the speaker of the house of representatives and the president of the senate that a maturity greater than 20 years, but in no event exceeding 30 years, is necessary for the economic feasibility of the financing of an auto race track facility with special obligation bonds payable primarily from revenues described by subsection (a)(1)(D) of K.S.A. 12-1774, and amendments thereto, may be extended in accordance with such determination and finding.”
The amendment allows a 30-year repayment period for special obligation bonds issued to finance an auto race track facility. Other urban redevelopment special obligation bonds, however, must be repaid in 20 years.
According to relator, the maximum maturity distinction between bonds financing an auto race track facility and all other bonds is wholly arbitrary and exclusive to this particular auto race track facility. Further, relator argues, the rationale for such a distinction, viz., economic feasibility, is nonsensical because any project with a longer payout period, e.g., 30 years versus 20 years, always has the opportunity to become more economically feasible. A ionger payout period allows for a lower annual payment to bondholders, a longer period of time to achieve financial success, and the potential to enhance economic performance over the life of the bonds.
As a type of tourism, race track facilities provide unique economic benefits to a state. The legislature has found, based on the provisions of L. 1998, ch. 17, § 2(h), that the extension of time for bond repayment for auto race track facilities will encourage the location of such facilities in the state and thereby produce economic benefits to the state and its communities while encouraging the development and redevelopment in major tourism areas. The fact that similar extensions of time for repayment are not granted to other types of tourism does not violate equal protection requirements.
The United States Supreme Court has described the extremely deferential standard used to analyze alleged equal protection violations:
“Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations omitted.] Where there are ‘plausible reasons’ for Congress’ action, ‘our inquiry is at an end.’ [Citation omitted.] This standard of review is a paradigm of judicial restraint. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.’ ” F.C.C, v. Beach Communications, Inc., 508 U.S. 307, 313-14, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993).
We previously have articulated the standard that governs judicial review of alleged violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and §§ 1 and 2 of the Kansas Constitution Bill of Rights:
“ ‘Traditionally, the test utilized in determining if a legislative enactment violates equal protection principles is whether the classification bears a rational relation to the purpose of the legislation. [Citations omitted.] The Legislature is presumed to act within its constitutional power despite the fact the application of its laws may result in some inequity. [Citation omitted.] The equal protection clause goes no further than to prohibit invidious discrimination. [Citation omitted.]’ ” State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981) (quoting Manzanares v. Bell, 214 Kan. 589, 609, 522 P.2d 1291 [1974]).
“ ‘ “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” ’ ” (Emphasis added.) Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 30, 643 P.2d 87 (1992) (quoting State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 [1978]).
The rational basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to the goals. Home Builders Ass’n v. City of Overland Park, 22 Kan. App. 2d 649, 671, 921 P.2d 234 (1996).
“Under that test, a statute is ‘rationally related’ to an objective if the statute produces effects that advance, rather than retard or have no bearing on, the attainment of the objective. So long as the regulation is positively related to a conceivable legitimate purpose, it passes scrutiny; it is for the legislature, not the courts, to balance the advantages and disadvantages.” Clark v. Walker, 225 Kan. 359, 366, 590 P.2d 1043 (1979).
The legislature is not prohibited from making distinctions between classifications of persons. Rather, these constitutional limitations amount to a requirement that all persons similarly situated should be treated alike. Home Builders, 22 Kan. App. 2d at 671.
“[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. [Citations omitted.] ... [A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, 508 U.S. at 315.
One of the mechanisms established to assist in achieving the goals of the TIF statutes is to provide tax-based revenues and allow for the increased tax revenue to pay for the development and redevelopment of property. “[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 253, 930 P.2d 1 (1996), cert. denied 137 L. Ed. 2d 1029 (1997). Under these standards, the amendments allowing auto race track facility special obligation bonds to have a maximum maturity of 30 years do not violate equal protection.
4. Standards for Governor’s Determinations
As to relator’s contention the legislature failed to give the Governor appropriate guidance for the determinations he is authorized to make under the legislation, relator argues the legislature has failed on two counts. First, L. 1998, ch. 17, § 2(h) fails to provide sufficient standards the Governor must use to determine that the “economic feasibility of the financing of an auto race track facility” depends on the bonds having a maximum maturity greater than 20 years. Second, relator argues L. 1998, ch. 17, § 2(1) fails to provide sufficient standards the Governor must use to determine that the development plan and each project within any additional area, not exceeding 400 acres, within the major tourism area will “enhance the major tourism area.”
According to relator, the fundamental constitutional defect here is that the legislature has failed to provide any standard upon which the Governor is to base his determinations, and the two criteria, viz., “economic feasibility of the financing of an auto race track facility” and “enhance the major tourism area,” are so vague that the legislature has actually conferred unlimited legislative power and authority upon the Governor to make these determinations. The Governor has already made findings regarding the additional 400-acre area for this project. Relator complains the Governor’s finding in that regard, aside from the Governor’s express reference to an attached development summary, is merely an unsupported recitation that the project for the additional 400 acres will enhance the major tourism area.
Great latitude is granted to the legislature to delegate certain functions to the administrative branch of government. Courts start with the presumption that “ ‘the legislature and the people have the right to assume that public officials will exercise their express and implied powers fairly, honestly and reasonably.’ ” State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. at 417. While standards must accompany a delegation of authority, “ ‘great leeway should be allowed the legislature in setting forth guidelines or standards and the use of general rather than minute standards is permissible.’ ” 230 Kan. at 417 (quoting State ex rel. v. Bennett, 222 Kan. 12, 21, 564 P.2d 1281 [1997]). Recently, we emphasized that flexibility in fashioning guidelines is desirable in light of modem day legal complexities and that standards may be implied from the statutory purpose. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 305, 955 P.2d 1136 (1998). When the standard expressed in the statute is merely a finding of necessity, “[s]uch a determination of need is constitutionally adequate when coupled with the assumption that it will be made ‘fairly, honestly and reasonably.’ ” Tomasic, 230 Kan. at 417.
This court has emphasized that “ ‘[t]he modem trend, which we ascribe to, is to require less detailed standards and guidance to the administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems’ ” (Emphasis added.) Tomasic, 264 Kan. at 305 (quoting Guardian Title Co. v. Bell, 248 Kan. 146, 153-54, 805 P.2d 33 [1991]).
The safeguards provided in the TIF statutes to check any abuse of executive power are extensive. Initially, a city enacts a resolution designating an area to be redeveloped as a major tourism area. L. 1998, ch. 17, § 2(a). Next, the city gives notice by resolution that it is considering a redevelopment district. The resolution contains extensive information about the geographic and physical nature of the area. L. 1998, ch. 17, § 2(d). Following a public hearing, the city may adopt another resolution that contains any findings required by L. 1998, ch. 17, § 2(a), and that also contains a comprehensive plan that identifies all of the proposed redevelopment project areas and identifies all of the buildings and facilities that are proposed to be constructed or improved in the redevelopment area. Following the public hearing, the city also designates the redevelopment district by ordinance. L. 1998, ch. 17, § 2(e).
When the Governor renders a finding regarding an extended time period for repayment of special obligation bonds, he acts with extensive information supplied through the city’s resolutions, public hearings, ordinances, and associated studies and documentation. As L. 1998, ch. 17, § 2(h) provides, it is the city that takes final action on the extension of the repayment period, because the special obligation bonds are issued by the city and the maturity of such bonds are contained in the city’s ordinance authorizing the bonds. The Governor merely makes an advisory determination that is reported to the Speaker of the House of Representatives, the President of the Senate, and the city. This procedure provides adequate safeguards against any potential abuse of power. Given the presumption that public officials exercise their powers fairly, honestly, and reasonably, there is no reason to assume that this procedure lends itself to abuse by the Governor, and we have been shown none.
One of the standards associated with a required finding by the Governor is that the extension of time for repayment of the bonds “is necessary for the economic feasibility of the financing of an auto race track facility with special obligation bonds.’’ L. 1998, ch. 17, $ 2(h).
Information supplied by the city allows the Governor to make a determination and render a finding that the extension of time for repayment is “necessary” for the project to move forward. The detailed statutoiy procedure prior to and subsequent to the issuance of the Governor’s finding provides context from which the Governor may infer the standard that governs the determination and finding. Tomasic, 264 Kan. at 305 (standards may be inferred from statute). The standard “necessary for the economic feasibil ity” is unambiguous and clearly contemplates a finding that the extension of time is a prerequisite to the economic feasibility for the proposed auto race track facility.
In Tomasic, 230 Kan. 404, this court was faced with a similar challenge to the delegation of authority to a city or county regarding the transaction of business by a port authority. The statute at issue provided that the port authority “shall not transact any business or exercise any powers . . . unless the governing body of the city by appropriate ordinance, or the county by appropriate resolution, declares that there is a need for an authority to function in the city or county.” 230 Kan. at 417. The relator in Tomasic argued that this delegation was without adequate standards for the exercise of such authority by a city or county. We held that “[s]uch a determination of need is constitutionally adequate when coupled with the presumption it will be made ‘fairly, honestly and reasonably/ ” 230 Kan. at 417. Our holding in Tomasic is equally applicable here.
As to the required finding by the Governor fhat an additional area, not to exceed 400 acres, will enhance the major tourism area, the Governor may make this finding only after the other procedures specified in L. 1998, ch. 17, § 2(a) through (h) have been completed, i.e., the city must conduct independent investigations, enact resolutions, hold a public hearing, and enact an ordinance designating the redevelopment area. This procedure provides adequate safeguards to ensure that the Governor will make a fully informed decision regarding the inclusion of an additional area. The Governor approves each specific project in the additional area, and the city is then required to provide an annual report to the Governor, the Secretary of KDOCH, and the legislature regarding the status of projects in the additional area. The specific standard associated with the finding required by the Governor is whether the development plan and the projects within the additional area will “enhance the major tourism area.” The “enhance” standard is unambiguous and clearly contemplates the provision of additional economic benefits to the major tourism area. The “enhance” standard meets the test articulated by this court regarding delegated authority in that it allows the Governor to know his rights, obligations, and limitations thereunder.
The modem trend is to require less detailed standards. Standards are difficult to define because of the variable nature thereof. The fact the law can be improved does not make it unconstitutional. When read as a whole, the amendments set forth sufficient standards. The Governor’s finding regarding the addition of 400 acres to the major tourism area in Wyandotte County follows the delegated standard.
5. Art. 2, § 17
Relator next contends the legislation does not meet the requirements of Art. 2, § 17 of the Kansas Constitution for either laws of a general nature or for special legislation.
Art. 2, § 17 of the Kansas Constitution provides:
“All laws of a general nature shall have a uniform operation throughout the state: Provided, The legislature may designate areas in counties that have become urban in character as urban areas and enact special laws giving to any one or more of such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
Relator agrees that L. 1998, ch. 17 is a law of a general nature because it is a law dealing with tax increment financing of redevelopment projects, which is common to all people of the state. However, relator argues it does not have uniform operation throughout the state because the amendments in the bill apply only to an auto race track facility and related projects to be built in a specific, legally described area of Wyandotte County, thereby preventing geographic uniformity in the application of the law throughout the state.
We hold the legislation in question contains laws of a general nature, operating, in both fact and theory, with geographic uniformity throughout the state. As we read the amendments, they contemplate uniform application throughout the state, and the entire body of urban redevelopment/TIF statutes, including the authority to designate major tourism areas, applies to all cities in Kansas. The statutes, for instance, refer to “any city” and “by authorizing cities.” See, e.g., L. 1998, ch. 17, § 1.
A boundary description for an auto race track facility in Wyandotte County is contained in L. 1998, ch. 17, § 2(e). That statute states only that the boundaries of a major tourism area in Wyandotte County that includes an auto race track facility must be at the statutorily specified location. Notwithstanding that provision, any city in the state could use the benefits of the TIF statutes for an auto race track facility, if the city meets the requirements of the statutes.
In Board of Riley County Comm'rs v. City of Junction City, 233 Kan. 947, 957-959, 667 P.2d 868 (1983), we agreed with the district court’s rationale that annexation legislation did not violate Art. 2, § 17 because it operated with geographic uniformity throughout the state even though its operation, as a practical matter, was basically confined to four cities touching, or in proximity with, the Fort Riley military reservation. Likewise, the legislation here is constitutional as it complies with the requirements of Art. 2, § 17.
6. Urban Area
A number of relator’s arguments become moot by reason of our holding the amendments at issue are laws of a general nature, uniformly applicable throughout the state. Among the arguments so mooted are those related to the failure to designate Wyandotte County an “urban area” and alleging they contain an improper subject matter for special legislation.
7. The 25% Premium
Relator next contends the statutory requirement that a 25% premium be paid to homeowners whose land is condemned for the development of an auto race track facility is unconstitutional in that it violates (1) the Fifth Amendment to the United States Constitution, as applicable to the states through the Fourteenth Amendment, because the government is constitutionally required to pay only just compensation for condemned land and nothing more, and (2) §§ 1 and 2 of the Kansas Constitution Bill of Rights as well as the Equal Protection Clause of the United States Constitution by creating a distinction between landowners who receive a 25% premium when their land is condemned for development of an auto race track facility and all other landowners whose land may later be condemned for other purposes.
L. 1998, ch. 17, § 5(a) provides in part:
“In addition to the compensation or damage amount finally awarded thereunder with respect to any property subject to proceedings thereunder as a result of the construction of an auto race track facility, such city shall provide for the payment of an amount equal to 25% of such compensation or damage amount.”
Relator first argues that only “just compensation” and nothing more may be paid for private property taken for public use and that any required payment greater than what is “just compensation,” in this case the 25% premium, is unconstitutional. Relator also argues the required premium is unconstitutional because it imposes upon other Kansas citizens an increased obligation above and beyond what is required and directly increases the cost to users of the race track facility and to Kansas citizens who are not within the race track redevelopment area. Relator then asserts that although the Fifth Amendment to the United States Constitution is generally thought of as protection for property owners whose land is being taken for a public purpose, it also provides protection to other citizens whose land is not condemned by preventing the government from overpaying for condemned property.
The applicable law in Kansas provides that a condemning authority must pay just compensation for the taking of private property. We know of no provision that prohibits the legislature from requiring a condemning authority to make additional payments beyond “just compensation.” The Fifth Amendment to the United States Constitution requires only that just compensation be paid for the taking of private property. It does not prohibit a condemning authority from paying more than what is determined to be just compensation.
Kansas law provides for the payment of additional compensation in some other circumstances. For example, L. 1998, ch. 17, § 6 requires relocation assistance payments as a part of redevelopment projects. Spackman v. Spackman, 3 Kan. App. 2d 400, 595 P.2d 748 (1979), upholds the requirement of federally authorized housing relocation assistance payments and notes that the purpose of such payments is to supplement traditional eminent domain compensation, not to create an additional element of full compensation. The 25% premium, by comparison, is also “in addition to and independent of the damages” finally determined to be just compensation for the taking. Requiring the premium calculation to be based on the amount of damages finally awarded in a condemnation proceeding does not change the character of the 25% premium from additional compensation to a part of what is “just compensation.”
Amicus curiae, who also contends the amendments to the TIF statutes are unconstitutional, argues that if we nevertheless find the amendments constitutional, we should also find the 25% premium constitutional. The amicus curiae brief cites five cases to support this argument. We believe three of the cases lend support to the argument in favor of the 25% premium.
In Electric Company v. Dow, 166 U.S. 489, 41 L. Ed. 1088, 17 S. Ct. 645 (1897), the United States Supreme Court first approved a provision mandating that an owner was to be paid additional damages in the amount of 50% of the taking value. Dow was not a condemnation case, however, and it was dismissed for lack of jurisdiction. In the opinion, the Supreme Court stated:
“We agree with the Supreme Court of New Hampshire in thinking that the plaintiff in error, by availing itself of the power conferred by the statute, and joining in a trial for the assessment of the damages, is precluded from denying the validity of that provision which prescribes that fifty per cent shall be added to the amount of the verdict. The act confers a privilege, which the plaintiff in error was at liberty to exercise or not as it thought fit.” 166 U.S. at 490.
While this statement may be viewed as dicta in light of the dismissal for lack of jurisdiction, we believe the Unified Government, by availing itself to L. 1998, ch. 17, should be precluded from denying the validity of the provision which prescribes that 25% shah be added to what is determined to be just compensation.
Mitchell v. United States, 267 U.S. 341, 69 L. Ed. 644, 45 S. Ct. 293 (1925), and Joslin Co. v. Providence, 262 U.S. 668, 67 L. Ed. 1167, 43 S. Ct. 684 (1923), both stand for the proposition that the legislature has the power to compensate losses and damages beyond those traditionally included in the interpretation of “just compensation.”
Mitchell involved a request for consequential damages for losses to a business when land was taken through eminent domain proceedings for the Aberdeen Proving Ground in Maryland. In the opinion in that case, the Supreme Court stated:
“[I]t does not follow that, in the absence of an agreement, the plaintiffs can compel payment for such losses. To recover, they must show some statutory right conferred. States have not infrequently directed the payment of compensation in similar situations. The constitutions of some require that compensation be made for consequential damages to private property resulting from public improvements. [Citations omitted.] Others have, in authorizing specific public improvements, conferred the right to such compensation. [Citations omitted.] Congress had, of course, the power to make like provision here.” 267 U.S. at 345-46.
Joslin Co. involved the condemnation of land for the acquisition of a municipal water supply. There, the Supreme Court stated:
“In respect to the contention that the statute extends the right to recover compensation so as to include these and other forms of consequential damages and thus deprives plaintiffs in error, as taxpayers of the city, of their property without due process of law, we need say no more than that, while the legislature was powerless to diminish the constitutional measure of just compensation, we are aware of no rule which stands in the way of an extension of it within the limits of equity and justice, so as to include rights otherwise excluded. As stated by the Supreme Court of Massachusetts in Earle v. Commonwealth, 180 Mass. 579, 583, speaking through Mr. Justice Holmes, who was then a member of that court: “Very likely the. . . rights were of a kind that might have been damaged if not destroyed without the constitutional necessity of compensation. But some latitude is allowed to the Legislature. It is not forbidden to be just in some cases where it is not required to be by the letter of paramount law.’ ” 262 U.S. at 676-77.
“[T]he constitutionally required just compensation ‘is a minimum, not a maximum entitlement. The legislature cannot require an owner to accept less, although it is free ... to provide for more.’ ” State Roads Comm’n v. 370 Limited Partnership, 325 Md. 96, 112, 599 A.2d 449 (1991) (quoting State Roads Comm’n v. Cornell Co., 85 Md. App. 765, 784, 584 A.2d 1331 [1991]).
We conclude the legislature can authorize a premium if it so desires, and such premium is not otherwise barred by issues not before us.
8. Cash Basis and Full Faith and Credit
Relator next contends that certain provisions of the Develop ment Agreement violate the Cash Basis Law, K.S.A. 10-1101 et seq., and the full faith and credit provisions of K.S.A. 1997 Supp. 12-1774(b)(l), as amended by L. 1998, ch. 17, § 3(b)(1), by requiring certain sales tax revenues to be used to repay the STAR bonds, by obligating the Unified Government to issue full faith and credit bonds, and by committing future Unified Governments to make annual appropriations to repay both the STAR and TIF bonds. In general, the cash basis law prohibits municipalities from creating indebtedness in excess of funds actually on hand in the treasury of the municipality. K.S.A. 10-1113. Contracts entered into by municipalities in violation of the Cash Basis Law are void. K.S.A. 10-1119.
L. 1998, ch. 17, § 3(b)(1) prohibits a city from issuing full faith and credit tax increment bonds to finance the undertaking of a redevelopment project that will create a major tourism area of the state as specified in L. 1998, ch. 17, § 3(a)(1)(D). Full faith and credit bonds bind the municipality’s future governing bodies to take all actions necessary, such as the levying of taxes, to ensure repayment of the bonds. In this case, the amendment to K.S.A. 1997 Supp. 12-1774(b)(l), prohibits the Unified Government from issuing full faith and credit tax increment financing bonds to finance the undertaking of the auto race track redevelopment project.
Paragraph 2 of the Agreement contains the following language:
“Unified Government agrees that the City/County portiQn of the sales tax revenue shall be available for payment of Debt Service on die Phase I and Phase II STAR Bonds.”
STAR bonds are special obligation bonds, repayment of which will come from the collection of state sales tax revenue generated from within all or a portion of a redevelopment area. Phase I and Phase II refer to different phases of construction of the auto race track facility. Phase I includes a 75,000-seat capacity race track. Phase II includes an expansion of the race track to a 150,000-spectator facility.
Relator argues Paragraph 2 violates the Cash Basis Law in that it commits the Unified Government to retire the STAR bonds when such indebtedness neither satisfies the requirements of K.S.A. 10-1113 nor fits within any exception contained within K.S.A. 10-1116.
While K.S.A. 10-1113 does generally prohibit municipalities from creating indebtedness in excess of funds actually on hand, this proscription is prefaced with the phrase “[u]nless otherwise provided by this act.” Therefore, the Cash Basis Law clearly allows the creation of indebtedness in excess of funds on hand when specifically authorized by the Cash Basis Law.
The exceptions to the general proscription of K.S.A. 10-1113 are set out in K.S.A. 10-1116. K.S.A. 10-1116(a)(2) states:
“(a) The limits of indebtedness prescribed under the provisions of article 11 of chapter 10 of Kansas Statutes Annotated may be exceeded when: ... (2) provision has been made for payment by the issuance of bonds or temporary notes as provided by law.”
L. 1998, ch. 17, § 3(a)(1) expressly authorizes “[ajnycity ... to issue special obligation bonds ... to finance the undertaking of any redevelopment project.” It further provides that the special obligation bonds may be payable from “a pledge of a portion or all of the revenue received by the city from transient guest, sales and use taxes . . . collected from taxpayers doing business” within the redevelopment district.
Because Paragraph 2 only commits the Unified Government to make the city/county portion of the sales tax revenues generated from within the Redevelopment District available for payment of debt service on the special obligation STAR bonds, the provision falls squarely within die K.S.A. 10-1116(a)(2) exception, and relator’s claimed violation of the Cash Basis Law is without merit.
Relator also argues Paragraph 2 violates L. 1998, ch. 17, § 3(b)(1) because it commits future governments to estimate and commit sales tax revenues to retire the bonds and because the nonrecourse provision ensures that despite any provision contained in the bond documents, the Unified Government will be obligated and future governments will be compelled to commit future sales tax revenues to pay off die bonds. Therefore, relator asserts, the bonds which will be issued will be the equivalent of full faith and credit bonds.
In addition, relator argues the Agreement provides that in the event there is a surplus of tax revenue collected from the project, the Unified Government will be entitled to utilize the surplus sales tax revenue for its own purpose, but any surplus sales tax revenue will also result in a credit against the indebtedness that KISC is obligated to pay.
The commitment to pledge sales tax revenues to repay the STAR bonds does not violate the full faith and credit provision of 12-1774(b)(1). That statute references the sources of funds that legally can be used to repay the principal and service the debt on special obligation bonds. These sources include funds from any private sources, contributions, or other financial assistance from the state or federal government, L. 1998, ch. 17, § 3(a)(1)(C), and from a pledge of a portion or all of the revenue received by the city from transient guest, sales, and use taxes, L. 1998, ch. 17, § 3(a)(1)(D). These are the only sources of funds that are contemplated to be used to pay debt service on the special obligation bonds that are proposed to finance the undertaking of this redevelopment project. Full faith and credit bonds will not be issued.
Relator s claim regarding the crediting of surplus sales tax revenues against RISC’s annual payment is without merit because KISC will not automatically receive any credit against its annual payments towards retirement of the TIF bonds from any surplus sales tax revenues. The language of the Agreement provides that if the KISC auto race track property would become subject to property tax during the period for which KISC is obligated to make annual payments towards retirement of the principal and interest on the TIF bonds (even though it is exempt from property taxes under L. 1998, ch. 17, § 2[k]), KISC would receive a credit against the annual payments it makes on the TIF bonds. The credit would be in an amount equal to all property taxes received by the Unified Government and all surplus sales tax revenue, which are applicable city/county sales taxes received by the Unified Government in excess of the debt service on the STAR bonds.
The annual payment KISC is obligated to make under the Agreement is not to retire the principal and interest on the STAR bonds, but to retire principal and interest on the TIF bonds. Paragraph 2 provides that it is the STAR bonds, not the TIF bonds, which are nonrecourse to KISC.
Relator also contends Paragraph 6 of the Agreement violates both the Cash Basis Law and L. 1998, ch. 17, § 3(b)(1).
Paragraph 6 contains the following language:
“No General Obligation Bonds shall be issued to finance the Total Project, however, Unified Government agrees to pledge annual appropriation[s], if necessary, to obtain Bond insurance on the TIF Bonds and the STAR Bonds (Phase I and II).”
Relator argues that, through this provision, the Unified Government pledged its annual appropriations of revenue to insure repayment of the TIF and STAR bonds, thereby doing exactly what the legislature was trying to prevent when it passed the Cash Basis Law.
The Unified Government and KISC have agreed only that future governing bodies of the Unified Government will consider appropriating funds in future years should a debt service shortfall occur with regard to the TIF or STAR bonds. If such a shortfall does occur, the then-current governing body would be requested to make its own independent legislative determination whether to appropriate the funds requested. Any appropriation for a debt service shortfall would be contingent on future legislative action by the Unified Government and, therefore, Paragraph 6 does not create indebtedness. See Edwards County Comm’rs v. Simmons, 159 Kan. 41, 151 P.2d 960 (1944); International Ass’n of Firefighters v. City of Lawrence, 14 Kan. App. 2d 788, 798 P.2d 960 (1990), rev. denied 248 Kan. 996 (1991). Since no indebtedness arises from the provisions of Paragraph 6, there can be no violation of the Cash Basis Law.
Relator claims that what is most offensive about Paragraph 6 is not the commitment to pledge future revenues, but the fact that the Unified Government delegated its budgeting decision to some outside entity, viz., a New York bond insurance company, in order to obtain bond insurance. Relator does not explain this assertion.
We hold there is no merit to relator s contentions and there is no violation of the Cash Basis Law or full faith and credit provision of the amendments.
9. Redevelopment and Relocation Plans
The last issue relator raises concerns the timing of the acquisition of real property interests needed for the redevelopment project. Relator first argues that, in violation of the provisions, spirit, and intent of the law, the Unified Government has already extended offers to purchase land located in the redevelopment area. At oral argument, we were informed that approximately one-half of the property owners have entered into options with KISC to sell their property. The offers are in the form of an option or “contingent” real estate contract. Relator then argues the Unified Government has violated and continues to violate K.S.A. 12-1772, K.S.A. 1997 Supp. 12-1773(a), as amended, and K.S.A. 12-1777, as amended, by acquiring interests in real property prior to the adoption of a redevelopment plan and a relocation assistance plan.
Relator argues that the fact KISC is the entity acquiring the options is a matter of form, rather than substance, that does not cure the statutory violations.
Together, 12-1772 and 12-1773(a) require a city to first adopt a redevelopment plan prior to the acquisition of any real property for the redevelopment project. Relator argues that the Unified Government has violated the rights of property owners in the proposed race track area, as well as the rights of all citizens, taxpayers, and elected officials of the Unified Government, by denying ¿hem the right to a meaningful public hearing on the redevelopment plan. While a hearing on a redevelopment plan is scheduled, relator asserts such a public hearing will be nothing more than a “rubber stamp” exercise because the Unified Government has already begun to acquire land in the redevelopment area.
K.S.A. 1997 Supp. 12-1773(a), as amended by L. 1998, ch. 17, § 5(a), states in relevant part:
“Any city which has adopted a redevelopment plan in accordance with the provisions of this act may purchase or otherwise acquire real property. Upon a % vote of the members of the governing body thereof a city may acquire by condemnation any interest in real property, including a fee simple title thereto, which it deems necessary for or in connection with any redevelopment plan of an area located within the redevelopment district.”
Relator also contends the Unified Government has violated and continues to violate 12-1777, as amended by L. 1998, ch. 17, § 6, because it is acquiring interests in real property prior to the adoption of a relocation assistance plan.
In relevant part, K.S.A. 12-1777, as amended, states:
“Before any redevelopment project shall be initiated under this act a relocation assistance plan shall be approved by the governing body proposing to undertake the project.”
Finally, relator contends respondent’s actions in acquiring the options to purchase prior to a meaningful public hearing and approval of the redevelopment plan and relocation assistance plan trample on the due process rights of the property owners. Relator, however, fails to explain this alleged due process violation.
KISC has made an offer as a willing buyer and private entity to enter into a contingent real estate contract with these property owners. The Unified Government has not made any offers to purchase property and has not entered into any contract to purchase property.
As noted, K.S.A. 1997 Supp. 12-1773(a), as amended, states in relevant part that “[a]ny city which has adopted a redevelopment plan in accordance with the provisions of this act may purchase or otherwise acquire real property.” (Emphasis added.) Even if the Agreement did contemplate the Unified Government’s acquisition of options on properties through the use of pooled escrow funds prior to the adoption of a redevelopment plan and relocation assistance plan, this alone does not constitute a violation of the statute. No violation would occur until the Unified Government purchased or otherwise acquired real property in the redevelopment area prior to the adoption of redevelopment and relocation assistance plans. Even if the Unified Government is deemed to have obtained an option or entered into a contingent real estate contract to purchase property, such action would not violate the statutes in question because obtaining an option or entering into a contingent real estate contract does not amount to the purchase or acquisition of property. Nor do moneys spent for general title and survey work amount to the purchase or acquisition of property.
Relator’s claim that the due process rights of property owners are being violated is also based on an erroneous claim that the Unified Government is actually acquiring options on properties prior to the adoption of a redevelopment and relocation assistance plan. For this reason, the alleged due process violation has no merit. Any such offer made would constitute only a contingent contract with no guarantee that the contingencies will be satisfied. Therefore, no property interest would be created by the option, and without a property interest there could be no due process violation.
We hold that the Unified Government has not purchased or otherwise acquired real property prior to the adoption of a redevelopment plan and relocation assistance plan.
For the reasons stated herein, the State’s petition for a writ of quo warranto is denied. | [
-12,
-22,
-15,
108,
-114,
-64,
54,
26,
74,
-37,
116,
83,
-17,
-54,
16,
59,
-82,
125,
116,
105,
-61,
-78,
7,
-21,
-108,
-13,
-7,
-43,
-78,
77,
-12,
22,
77,
-15,
-118,
-43,
6,
74,
7,
30,
-114,
-127,
-119,
-64,
-48,
-61,
-66,
-22,
18,
75,
49,
-113,
-13,
40,
24,
-61,
-23,
60,
91,
-17,
-63,
-72,
-22,
-105,
126,
6,
33,
4,
-108,
-119,
104,
58,
-104,
57,
32,
104,
87,
-90,
-122,
-28,
107,
-39,
9,
38,
99,
1,
32,
-113,
-4,
-100,
30,
-5,
31,
-122,
-109,
-39,
98,
11,
-106,
31,
93,
18,
74,
-2,
-18,
5,
91,
108,
-121,
-54,
-16,
-111,
-49,
116,
3,
83,
-17,
-127,
48,
100,
-53,
118,
95,
-105,
56,
-101,
-81,
-80
]
|
Per Curiam:
This is an original, uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Victor W. Miller, an attorney licensed to practice law in the state of Kansas since September 1979. Miller s last registration address with the Clerk of the Appellate Courts of Kansas is in Topeka, Kansas.
The formal complaint filed and as subsequently amendéd by the Disciplinary Administrator alleged that Miller violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2004 Kan. Ct. R. Annot. 342) (competence), KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence), KRPC 1,4 (2004 Kan. Ct. R. Annot. 367) (communication), KRPC 3.2 (2004 Kan. Ct. R. Annot. 440) (expediting litigation), and KRPC 8.4(d) (2004 Kan. Ct. R. Annot. 485) (misconduct — by engaging in conduct prejudicial to the administration of justice).
Prior to the formal hearing, the Respondent stipulated that he violated KRPC 1.3, KRPC 1.4, and KRPC 3.2. At the conclusion of the formal hearing, Respondent admitted that he violated KRPC 1.1. Additionally, based upon the findings of fact resulting from the formal hearing, the hearing panel concluded that as a matter of law Respondent violated KRPC 8.4(d). The Respondent filed no exceptions to the panel’s final hearing report.
The hearing panel made 28 separately numbered findings of fact, which are reproduced in narrative form as follows:
On May 25, 2000, Howard Moses, a friend of the Respondent from college, executed his Last Will and Testament. In the will, Mr. Moses named the Respondent as the Executor. On October 28, 2001, Mr. Moses died. He was survived by his mother, Lorena Moses. On November 13, 2001, the Respondent filed a Petition for Probate of Will on behalf of Mr. Moses’ estate. On December 6, 2001, the district court issued an order admitting the will to probate and appointing the Respondent as Executor. On that same date, an Oath of Executor, signed by the Respondent, was filed with the district court and the court issued Letters Testamentary to the Respondent.
Although Respondent was to file an inventory of the estate by January 6, 2002, he failed to do so. On January 7, 2002, the clerk of the district court issued Respondent a Notice and Order for Inventory. After receiving the Notice and Order for Inventory, the Respondent failed to prepare and file an inventory.
Mr. Moses had a life insurance policy of which his mother, Ms. Moses, was the sole beneficiary. After Mr. Moses’ death and sometime during the winter of 2001-2002, Ms. Moses executed a claim form related to the insurance policy. Respondent agreed to forward the claim form to the insurance company on Ms. Moses’ behalf. Respondent failed to do so. After hearing nothing from Respondent, Ms. Moses received a second notice from the insurance company. Ms. Moses telephoned Respondent. Respondent directed Ms. Moses to complete a second claim form and Respondent again promised to forward the claim form to the insurance company on behalf of Ms. Moses. For the second time, the Respondent failed to forward the claim form as agreed. It is not clear when Ms. Moses finally was paid the life insurance proceeds; however, she had not received the proceeds from the policy by October 25, 2002, a year following Mr. Moses’ death.
Respondent failed to respond to requests for information from Ms. Moses. Additionally, Respondent failed to perform work necessaiy to administer the estate. Because Respondent failed to provide Ms. Moses with answers to basic questions, in October 2002, Ms. Moses retained attorney Craig R. McKinney to assist with her son’s estate.
On October 25, 2002, McKinney wrote to the Respondent, detailing Ms. Moses’ questions. Respondent failed to respond to McKinney’s letter. Because Respondent failed to respond to McKinney’s letter, on November 12, 2002, McKinney entered his appearance on behalf of Ms. Moses in the Moses Estate. At the same time, McKinney filed a Petition for Inventoiy and Accounting.
On December 1, 2002, the clerk of the district court issued a notice to the Respondent informing him that the final settlement was due. After the Respondent received the notice from the clerk of the district court, Respondent took no action toward completing the final settlement of the estate.
The court held a hearing on McKinney’s Petition for Inventory and Accounting on December 5, 2002. Respondent failed to appear at the hearing. The court granted the petition and ordered the Respondent to file an Inventory and Accounting forthwith. Despite the court’s order to file the Inventory and Accounting forthwith, Respondent took no action.
On Januaiy 27, 2003, Ms. Moses filed a petition requesting that Respondent pay the attorney fees associated with her petition for Inventory and Accounting. The court held a hearing on the petition for attorney fees on February 24, 2003. Respondent failed to appear at the hearing. The court granted the petition and ordered Respondent to pay $1,031.25 in attorney fees. It was some time later before Respondent paid tire attorney fees.
On April 9, 2003, McKinney filed a complaint with the office of the Disciplinary Administrator regarding Respondent’s handling of Mr. Moses’ estate. Despite the filing of the complaint, Respondent took no steps to complete work necessary to administer the estate.
On June 18, 2003, having heard nothing from the Respondent, the court issued an Order to Appear and Show Cause which, in pertinent part, provided:
“It, having been made to appeal" to this Court, from the official records in this case, that you have failed to comply with the requirements of the law of this State and of the orders of this Court, it is hereby ordered, as follows:
“[The Respondent] is ordered to appear in person before this court on the 16[th] day of July[,] 2003, at 2:00 p.m., and at that time show cause why the court should not impose monetary penalties, remove any appointed person from his/ her position of authority or take such other remedial action as may be warranted for the aforementioned noncompliance with the law.
“FAILURE TO APPEAR IN RESPONSE TO THIS ORDER MAY RESULT IN A WARRANT BEING ISSUED FOR YOUR ARREST.”
On July 3, 2003, Ms. Moses filed a second petition for attorney fees. The court scheduled a hearing on Ms. Moses’ second petition for August 18, 2003.
On July 16, 2003, Respondent appeared in court in response to the Order to Appear. At the hearing, the court ordered the Respondent to file the appropriate pleadings on or before July 25, 2003. Again, despite the court’s order, the Respondent failed to file the appropriate pleadings.
During the summer of 2003, Gregory Lee, counsel for the Respondent in the instant disciplinary action, contacted Ruth E. Graham and asked her to assist the Respondent in handling the estate. While the scope of what was expected of Graham was not made clear to her, she testified that she did understand that the Respondent needed assistance in preparing and filing the Inventory and Accounting for the estate.
On August 18, 2003, the Respondent failed to appear at the hearing on Ms. Moses’ second petition for attorney fees. However, Graham appeared on behalf of the Respondent. Following the hearing, the court granted Ms. Moses’ second petition for attorney fees, ordered the Respondent to pay an additional $2,520.07, and again ordered the Respondent to prepare and file an Inventory and Accounting. Later, with the assistance of Graham, the Respondent paid all the attorney fees as ordered by the court.
Also on August 18, 2003, the court wrote to Graham and instructed her to take action to conclude the estate within 60 days. Graham proceeded to assist the Respondent with preparing and filing the Inventory and Accounting. With the assistance of Graham, the Respondent prepared and filed an Inventory and Valuation in Mr. Moses’ estate case. The inventory was filed on August 20, 2003.
On September 3, 2003, Ms. Moses was contacted by an individual who lived adjacent to Mr. Moses’ house. The neighbor in formed Ms. Moses that the contents of Mr. Moses’ house were being removed. Ms. Moses immediately traveled to Mr. Moses’ house; however, by the time she arrived, the contents of Mr. Moses’ house had been removed. On September 8, 2003, Ms. Moses filed a petition for Access to Contents of Residence. The court scheduled a hearing on the petition for September 18, 2003. Again, while the Respondent failed to appear, Graham appeared on his behalf. Following the hearing, the court ordered the Respondent to allow Ms. Moses to have access to Mr. Moses’ residence, the contents of the residence, and other personal property, wherever located. Additionally, the court ordered that the Respondent would not be permitted to have access to Mr. Moses’ property unless he was accompanied by Ms. Moses. Finally, the court ordered that the Respondent pay in to the clerk of the district court the proceeds of Mr. Moses’ estate. On October 9, 2003, Respondent transferred the assets of Mr. Moses’ estate in his possession, a total of $6,587.37, to the clerk of the district court, as ordered.
Despite all of the proceedings held by the court, the Respondent still failed to complete the administration of the estate. On March 1, 2004, the clerk of the district court issued a second Notice of Final Settlement Due. The clerk again directed the Respondent to file a petition for Final Settlement within thirty days. The Respondent again failed to follow the clerk’s directive.
On April 10, 2004, the clerk of the district court sent the Respondent a Notice of Delinquency. The Respondent did not comply with the Notice of Delinquency from the clerk’s office.
On May 10, 2004, the clerk of the district court sent the Respondent a second delinquency notice. Again, the Respondent did not comply with the second notice of delinquency from the clerk’s office.
On August 13, 2004, a petition for Final Settlement was filed in the estate case by Graham. Thereafter, on September 13, 2004, the court held a hearing on the petition. On that same date, the court granted the petition and entered a Journal Entry of Final Settlement. On September 29, 2004, the court entered a Journal Entry of Final Discharge in the estate, 7 days prior to the formal hearing in this case.
The hearing panel then concluded Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, and KRPC 8.4(d). The panel’s conclusions are summarized as follows.
KRPC 1.1 requires attorneys to provide competent representation to their clients. At the conclusion of the formal hearing, Respondent admitted to violating KRPC 1.1. The hearing panel concluded Respondent violated KRPC 1.1 by failing to competently represent Mr. Moses’ estate when he failed to timely prepare and file the Inventory and Accounting and when he failed to timely prepare and file the petition for Final Settlement.
KRPC 1.3 requires attorneys to act with reasonable diligence and promptness in representing their clients. Respondent stipulated to violating KRPC 1.3. The panel concluded Respondent violated KRPC 1.3 by fading to provide diligent representation to Mr. Moses’ estate when he failed to timely prepare and file the Inventory and Accounting and when he failed to timely prepare and file the petition for Final Settlement.
KRPC 1.4 requires an attorney to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Respondent stipulated to violating KRPC 1.4. The panel concluded Respondent violated KRPC 1.4 when he failed to communicate with Ms. Moses regarding the status of her late son’s estate.
KRPC 3.2 requires an attorney to make reasonable efforts to expedite litigation consistent with the interest of the client. Respondent stipulated to violating KRPC 3.2. The panel concluded Respondent violated KRPC 3.2 by failing to expedite the handling of Mr. Moses’ estate.
KRPC 8.4(d) states it is professional misconduct for an attorney to engage in conduct that is prejudicial to the administration of justice. The panel concluded Respondent violated KRPC 8.4(d) and engaged in conduct prejudicial to the administration of justice when he (1) failed to comply with or even respond to the orders of the court, (2) failed to appear at scheduled hearings in Mr. Moses’ estate case, and (3) failed to take any action to complete the estate for nearly 2 years.
Regarding its recommended discipline, the panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards), stating:
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation and adequate communication. The Respondent violated his duty to the legal system to see that justice is served.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Ms. Moses. The Respondent’s misconduct caused Ms. Moses to not receive the life insurance benefits for approximately one year after the death of her son.”
The panel found the following aggravating factors:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on two occasions. On March 5, 1990, the Disciplinary Administrator informally admonished .the Respondent. [The panel noted the record is void of any information regarding the Respondent’s misconduct that led to the first informal admonition.] Additionally, on December 8, 1992, the Disciplinary Administrator informally admonished the Respondent. The Respondent’s second informal admonition was for violations of DR 1-102(A)(5), DR 1-102(A)(6), DR 6-101(A)(3), MRPC 1.1, MRPC 1.3, MRPC 1.4, MRPC 3.2, MRPC 8.4(d), and MRPC 8.4(g). [The panel noted the misconduct that gave rise to the second informal admonition occurred at times when the ethical rules in Kansas were known as tire Code of Professional Responsibility (Disciplinary Rules) and then, later, as the Model Rules of Professional Conduct.]
“A Pattern of Misconduct. The Hearing Panel concludes that the Respondent engaged in a pattern of misconduct within diis case. The Respondent repeatedly ignored letters from McKinney, notices from the Clerk of the District Court, and orders from the Court regarding his duty to administer Mr. Moses’ estate. Because the Respondent repeatedly engaged in such behavior, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Vulnerability of the Victim. Ms. Moses was vulnerable to the Respondent’s misconduct. Ms. Moses, while mourning the death of her son, was forced to retain an attorney in order to get her son’s probate case completed. Because of the Respondent’s misconduct, Ms. Moses did not receive life insurance benefits for approximately a year after her son’s passing. Even with Ms. Moses’ efforts and Ms. Moses’ attorney’s efforts and with the assistance of Graham, it still took nearly three years to complete the probate of a minimal asset case.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1979. At the time the Respondent engaged in the misconduct, the Respondent had been practicing law for more than twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.”
The hearing panel found the following mitigating factors:
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. It is clear to the Hearing Panel that the Respondent has a personal problem that contributed to his failure to either take the appropriate steps in Mr. Moses’ estate or to have the successor executor appointed and hire an attorney for the estate. However, the crux of the Respondent’s personal problem is unknown to the Hearing Panel. The Respondent failed to adequately specify why he was unable to complete the work or withdraw from the case.
“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 is an active and productive member of the bar in Topeka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
“Imposition of Other Penalties or Sanctions. The Court ordered that the Respondent pay McKinney’s attorney fees on two separate occasions, for a total of $3,551.32. The Respondent paid the fees as ordered, after Graham became involved with the case.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“Remoteness of Prior Offenses. The discipline imposed in 1990 and 1992 is remote in time to the misconduct in this case.”
The panel also considered the following Standards:
Standard 4.43:
“Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.”
Standard 6.23:
“Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.”
The panel unanimously recommended published censure.
We adopt the hearing panel’s findings of fact and its conclusions of law. Further, we agree with the panel’s recommended discipline of published censure.
It Is Therefore Ordered That Victor W. Miller be and he is hereby censured in accordance with Supreme Court Rule 203(a)(3) (2004 Kan. Ct. R. Annot. 237) for violations of KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, and KRPC 8.4(d).
It Is Further Ordered that the costs of these proceedings be assessed to the Respondent and that this order shall be published in the official Kansas Reports.
Lockett, J., Retired, assigned. | [
-80,
-20,
-59,
93,
-120,
-31,
26,
42,
81,
-45,
103,
83,
-51,
-38,
1,
123,
113,
45,
-112,
105,
-58,
-77,
118,
-64,
102,
-14,
-8,
-43,
-70,
127,
-28,
-33,
73,
32,
-118,
-107,
-122,
-126,
-127,
-44,
-122,
2,
-119,
-16,
91,
65,
48,
33,
86,
15,
117,
30,
-13,
46,
23,
107,
-84,
108,
-3,
-116,
72,
-111,
-37,
-107,
122,
19,
-94,
-124,
-98,
-113,
80,
43,
-104,
57,
40,
-24,
-77,
-74,
6,
-12,
111,
-55,
41,
102,
98,
35,
-47,
-27,
-80,
-120,
15,
59,
29,
39,
-97,
89,
105,
5,
-106,
-97,
113,
86,
43,
-4,
-20,
-108,
63,
-20,
6,
-53,
-42,
-111,
31,
101,
-114,
26,
-21,
-60,
48,
117,
-119,
-26,
95,
67,
113,
-101,
-34,
-80
]
|
The opinion of the court was delivered by
Allegrucci, J.:
Ethan Griffin appeals his convictions of two counts of felony murder, five counts of aggravated battery, and two counts of burglary. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) plus 72 months consecutive to the life terms.
This case is a companion case to State v. Dixon, 279 Kan. 563, 112 P.3d 883. The convictions of Griffin and Dixon arose out of an explosion and apartment fire, which occurred in Emporia in July 2001. Dixon and Griffin were coparticipants in the crimes charged but were not tried together. Griffin testified as a witness for the State in Dixon’s trial. He did not testify in his trial. The facts surrounding the explosion and fire are set out in Dixon, 279 Kan. at 565-68, and will not be set out in detail in this opinion except as may be necessary in discussing issues not raised and discussed in Dixon.
Griffin raises 10 issues on appeal. Five of them are similar to issues raised by Dixon.
1. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE STATE’S USE OF INCONSISTENT PROSECUTORIAL THEORIES TO CONVICT HIM AND WALLACE DIXON OF THE SAME CRIMES?
Griffin makes two claims of prosecutorial inconsistency between his trial and Dixon’s. First, he contends that hé was portrayed as truthful in Dixon’s trial, where he testified for the State, and as less than truthful in his own trial. Second, he contends that his participation in the second burglary of Alicia Shaw’s apartment was played down in Dixon’s trial and up in his own.
The State argues that this issue is not properly before the court because it is raised for the first time on appeal. Griffin does not contend that the issue was raised at trial, but he states that it was argued at the remand hearing on ineffective assistance of counsel. Examination of the transcript of the remand hearing at the pages cited by Griffin shows that the issue presented to the trial court was whether trial counsel should have had Griffin testify. The argument was made at that time by appellate counsel that inconsistencies between Dixon’s and Griffin’s trials could have been avoided if trial counsel had convinced Griffin to testify on his own behalf. Inconsistent prosecutorial theories were not an issue presented to the trial court so as to provide an opportunity to avoid or correct error.
As a general rule, issues not raised before the trial court will not be considered on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). There are several exceptions to the general rule, including where consideration of the question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Wiegand, 275 Kan. 841, 844, 69 P.3d 627 (2003). Griffin does not argue for exercising an exception in the circumstances of this case. We do not address the issue.
2. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE PROSECUTOR’S MISSTATING THE EVIDENCE AND THE LAW IN CLOSING ARGUMENT?
Griffin contends that the convictions against him were obtained, at least in part, by prosecutorial misconduct in closing argument. An appellate court’s standard of review is the same whether or not an objection was made at trial. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). “Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000).
We use a two-step process in analyzing allegations of prosecutorial misconduct. First, the court determines whether complained-of comments were outside the wide latitude permitted a prosecutor for language and manner. Second, the court determines whether the prosecutor’s remarks constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial. 275 Kan. at 121.
(a) Evidence. Griffin contends that, because the evidence was that Dixon knocked over the stove, it was incorrect for the prosecutor to state that defendant’s acts were responsible for the deaths of Dana and Gabriel Hudson. Griffin complains of the following statements:
“Dana and Gabriel Hudson died that night. They died because of the defendant’s acts along with Wallace Dixon and he should be held responsible for that.”
‘We know the defendant was inside that apartment, him and Wallace Dixon, and that they caused a leak in this pipe that ultimately exploded killing Dana and Gabriel. Nothing else caused it.”
The prosecutor’s statements conform to the well-established principles of aiding and abetting. The court has long recognized that all participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime. See State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964); PIK Crim. 3d 54.05 and 54.06.
The prosecutor told the jury that Griffin admitted burglarizing Alicia Shaw’s apartment, but Griffin contends that he did not admit burglarizing the apartment on the second entry. He complains of the following statements:
“But that’s what happened and that’s what he admitted to. He went in the apartment. He committed a burglary and it was during the course of that burglary the place blew up.”
‘We brought you the defendant admitting going into the apartment, burglarizing it, and what Wallace Dixon did.”
The State concedes that Griffin never said that he burglarized the apartment on the second entry; he did admit to entering the apartment with Dixon. The State contends that Griffin’s entering the apartment a few hours earlier and stealing property raised the inference that he intended to do the same when he entered the apartment the second time. Intent, a state of mind existing at the time an offense is committed, does not need to be and rarely can be directly proven. It may be established by acts, circumstances, and inferences reasonably deducible from the evidence of acts and circumstances. State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 (2000). In the absence of proof of other intent, or an explanation of an unlawful breaking and entry into the dwelling of another at night, it reasonably may be inferred that the intruder intended to commit a felony, theft, or sexual battery therein. In Wilkins, although the court reversed the defendant’s conviction of burglary on double jeopardy grounds, it held that the evidence was sufficient to convict defendant of burglary where he was found in a pawn shop, having broken in through a hole in the roof. 269 Kan. at 264. In the present case, too, there is no other explanation for Griffin’s second unlawful entry into the apartment, and from the evidence of his conduct in the first entry it reasonably may be inferred that he intended to resume his thievery in the second entry.
Griffin complains of two aspects of the following statements about how the apartment was going to be blown up:
“You heard what [Griffin] said about Wallace Dixon’s intent, I’m going to bum that house down, I’m going to blow that apartment up. He chose. He chose to stay there. Even when Rodney Hayes, his best friend, said I’m done, I’m done, he shot at me, he wants to blow up a house, I’m done, we’re going over to Donnie Wishon’s . . . .”
“The defendant made yet another choice, I’m going to go with Wallace Dixon. 'And when he did so he knew Wallace Dixon’s intent. Because as you heard him say, he knew Wallace was intending to blow up that apartment. He knew and yet he made the choice.”
Griffin claims that there was no evidence that Dixon said anything about an explosion. Griffin himself, however, told police that Dixon was talking like he would blow the house up. Griffin also complains that the prosecutor improperly changed the term “house,” which was in evidence, to “apartment,” which was not. The significance of the latter, according to Griffin, is that Dixon’s referring to an apartment would have been a clearer expression of his intent. There is no need, however, to impute Dixon’s intent to Griffin because the jury reasonably could have inferred that Griffin intended to commit theft when he entered Alicia Shaw’s apartment the second time.
(b) Law — aiding and abetting. Griffin complains that the prosecutor told the jurors, contrary to established law, that his mere association with Dixon was sufficient to establish his guilt of felony murder. He identifies the following statements:
“[Dixon] had the reasons to do this. But the defendant went along. The defendant aided Wallace Dixon for, you see, ladies and gentlemen, when you go into a place like this when you’re going to commit a crimef,] is it easier to do it alone or with someone else[?] We know this defendant is the one who crawled through the window and cut himself the night during the first burglary. It’s easier to do it with a group. That encourages bad behavior, that’s common sense.
‘Would Wallace Dixon have done this alone had the defendant not helped him? We’ll never know.”
“No one forced him to enter that apartment to help Wallace Dixon, to aid, to encourage, to help Wallace Dixon. No one made him do it, it was his choice to do so. And regardless of the extent of his participation, you heard him start out with the police denying any participation and ultimately he got to the point where he admitted it. But regardless of that, a person who intentionally aids, abets is guilty of the primary crime.”
In neither of these excerpts did the prosecutor tell the jury that mere association was sufficient for conviction. These remarks do not touch on Griffin’s own intent in reentering the apartment. As we have seen in the preceding paragraphs, the prosecutor urged the jurors to infer from all the evidence that Griffin reentered the apartment with a felonious intent. The State’s position was not that Griffin was guilty by mere association, and these excerpts do not suggest that it was.
(c) Law — intended consequences. Griffin contends that the prosecutor asked the jurors to misapply the law of intended consequences. He states that the theme of the State’s closing argument was that, at a number of different times, Griffin chose to associate with rather than distance himself from Dixon so that he eventually was in Alicia Shaw’s apartment when Dixon knocked over her stove. The prosecutor quoted the following part of the pattern instruction on intended consequences: “And the law says as you’ve just been instructed in Instruction Number 9 that ordinarily a person intends all of the usual consequences of their voluntary acts. It’s a choice we make.” Griffin contends that the prosecutor’s statements were intended to convince the jury to convict him without reference to the elements of felony murder.
We find it difficult to understand Griffin’s argument. It appears to be another way of arguing that, without felonious intent to reenter the apartment, Griffin was merely associating with Dixon and the deaths were not the usual consequences of mere association. The prosecutor s statement about intending usual consequences is a correct statement of the law, and, even though the prosecutor did not restrict his use of the principle strictly to a presumption of intent, there does not seem to be anything improper about the way he used it. Hence, the prosecutor’s theme and remarks do not extend beyond the wide latitude permitted a prosecutor for language and manner.
(d) Law — felony-murder rule. The prosecutor stated:
“The felony murder rule is simply this: The State says that in our laws that if you commit certain classes of felonies and during the commission of one of those felonies the attempt, even the attempt to commit one of those felonies, or the flight from one of those felonies and someone dies as a result of what happened, it’s felony murder.
“. . . So if you’re — for lack of a better example, if you’re just committing a burglary and you trip over something on the way out and that causes a gas leak, that’s felony murder if people die.”
Griffin complains that the statement leaves out the requirement that the death must occur during the attempt, commission of, or flight from the felony. His argument is based on an overly narrow reading of K.S.A. 21-3401, which provides that a felony murder is “the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony.” A less restrictive construction of the statute prevails in the case law, where the requirement is that the lulling be some part of the felony. For example, in State v. Jacques, 270 Kan. 173, 14 P.3d 409 (2000), the defendant’s conviction of felony murder, with possession of cocaine as the underlying felony, was affirmed where he killed the person who was supposed to buy cocaine for him and then went into the drug house and made the purchase for himself. The court held:
“When applying the felony-murder rule, . . . the felony and the victim’s death do not need to occur simultaneously, nor does the felony need to occur before the death. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was a part of the felony and therefore subject to the felony-murder rule. [Citations omitted.]
“We hold that the death need not occur during or after the commission of the felony to support a conviction for felony murder. The question for the jury is whether the death is within the res gestae of the crime, regardless of the actual sequence of events. [Citations omitted.]” 270 Kan. 189-90.
3. WAS THE ASSISTANCE PROVIDED BY GRIFFIN’S TRIAL COUNSEL INEFFECTIVE?
In May 2003, after his appeal had been docketed in this court, Griffin filed a motion seeking remand for a determination whether he was denied effective assistance of counsel at trial. The court granted the motion in June 2003. In a November 2003 letter, the trial judge advised the court that a hearing had been conducted and the claim of ineffective assistance denied. In December 2003, a journal entry was filed, which recites that a hearing was conducted and the defendant’s request for relief was denied.
The trial judge announced his ruling from the bench at the conclusion of the hearing. He began with the general observation that defendant was represented throughout the course of the underlying trial by an attorney with “extensive trial experience in criminal cases, trying between 160 and 170 cases for the defense,” who devoted 250 to 300 hours to preparing and trying the case. The trial judge also noted that Griffin’s counsel watched Dixon’s trial before Griffin’s began. In the judge’s view, “that presents to a defense trial counsel a unique perspective of literally having seen the case tried previously and being able to adopt an approach and a strategy based upon what he had seen and heard of the prior case.” Here are the concluding paragraphs of the trial judge’s remarks from the bench:
“I, therefore, find based upon the totality of my circumstances here that the defendant has not met its burden to demonstrate, first of all, that trial counsel’s performance was deficient; secondly, even if I had so found then I must go on to the question of whether or not that conduct was prejudicial. . . . But I think I want to malee it very clear for this record that even if I had taken a different view and determined that there were errors on the part of Mr. Brown, I cannot conclude under these circumstances that those errors were in any way prejudicial. To do so I would have had to find that there was a reasonable probability that the result would have been different.
“The evidence against Mr. Griffin was quite extensive. The jury gave considerable thought to that evidence and applying the evidence to the law as they were instructed. In fact, as I recall some not-guilty decisions were rendered in this regard. I cannot see in any respect, having looked back through this case and reconsidered this matter, how a change in the defense’ tactics would have altered or in any way changed the decision of the jury. Consequently, it would be my secondary finding that there was no prejudice even if one found that there was a deficient performance. Under these circumstances the request of the defendant to set aside the verdict based upon Sixth Amendment grounds of ineffective assistance of counsel is denied.”
Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel’s performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2004). Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review. Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002).
On appeal, Griffin makes 10 claims of ineffective assistance of counsel. The State objects to the court’s consideration of half of the claims on the ground that Griffin did not raise them in the district court. Griffin contends that some of the claims were presented to the district court and, even if they were not, it does not matter because this court is obligated to base its ruling on a review of the entire trial record. He cites State v. Rice, 261 Kan. 567, 608, 932 P.2d 981 (1997), which does not involve the question whether an instance of alleged ineffective assistance will be considered for the first time on appeal.
In Rice, the trial court determined that defense counsel’s performance, which included advising his client for unsound reasons not to testify, was not unreasonably deficient. This court disagreed but upheld the trial court’s overruling of the motion for new trial on the ground that Rice was not so prejudiced by his attorney s deficient performance as to be denied a fair trial. 261 Kan. at 607-09. In discussing that the trial court’s ruling on prejudice undoubtedly would have been negative if the second prong had been reached, this court made the following statement:
“It is apparent the trial judge was not limited to the evidence presented at the ineffective assistance hearing, but took into consideration, as we must do, the totality of the evidence before the jury. There is considerable evidence sufficient to uphold the verdict which would not have been affected by Rice’s testimony.” 261 Kan. at 608-09.
Taking all the evidence into consideration is not the equivalent of considering an issue for the first time on appeal.
Generally, an allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004). The trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than an appellate court and should be the first to make a determination of such an issue. State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986). This court, however, has made exceptions in a few cases where the record on appeal was sufficiently complete for the appellate court to decide the issue. See, e.g., State v. Jones, 273 Kan. 756, 785, 47 P.3d 783 (2002); State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000); State v. Jenkins, 257 Kan. 1074, 1079-80, 898 P.2d 1121 (1995).
(a) Griffin contends that his trial counsel should have introduced Griffin’s testimony and the prosecutor’s closing argument remarks about Griffin’s testimony from Dixon’s trial in order to show Griffin’s lack of culpability. The State contends that the issue was not raised before the trial court. In his reply brief, Griffin states that it was raised and cites certain portions of the transcript of the hearing on the claim of ineffective assistance of counsel.
Examination of the specified portions of the record shows that the principal contention presented to the trial judge was that Griffin would have benefitted from testifying in his own defense. Griffin’s testimony from Dixon’s trial and a question the prosecutor asked Griffin, but not the prosecutor’s closing remarks, are cited. In reference to Griffin’s position in testifying in his own trial, Griffin’s appellate counsel asked and Griffin’s trial counsel answered the following questions:
“Q. . . . What was Mr. Griffin’s position on testifying?
“A. He did not want to testify.
“Q. And that would have been after consultation with you?
“A. Several consultations, yes.
....
“Q. His decision not to testify after consultation with you.
“A. Yes.
“Q. Do you recall whether or not you advised him that his testimony in Dixon’s trial could be beneficial to him in his own trial?
“A. I don’t believe we had that conversation, no, sir.”
In another instance, Griffin’s appellate counsel argued that Griffin should have been advised to testify in his own defense. The trial judge stated that he “didn’t hear anything about that today,” and “[w]e don’t have any evidence of that,” to which Griffin’s appellate counsel responded, “I don’t have that evidence, no.” Later, Griffin’s appellate counsel stated, “I don’t think the prosecution should be switching positions between one defendant — codefendant’s culpability to obtain a conviction on the other one and then reverse it again when it’s the next defendant’s time for trial, and that would have plainly come out if he would have taken the stand." The last cited excerpt is a question by the prosecutor and Griffin’s response, which appellate counsel commended to the trial judge as showing that in Dixon’s trial the State characterized Griffin as less culpable than in his own trial. The trial judge asked Griffin’s appellate counsel, “[I]s there anything that you wanted to submit in written form that you haven’t already submitted either in the motion for remand or otherwise here today that you think I need to read before I can rule?” In response, Griffin’s appellate counsel suggested that the trial judge read page 1890 of Dixon’s trial transcript. At pages 1890-91 of Dixon’s trial transcript, Griffin testified about when Hall and Hayes stayed at Donnie Wishon’s house and Griffin left with Dixon. The prosecutor asked, “You were along for the ride?" Griffin answered, “I was ready to go. He asked me — I was just — I was ready to go and I was in the car, yeah.”
Although the issue as framed on appeal was not clearly presented to the trial judge, the issue will be considered to the extent that it was brought to the trial judge’s attention. The question would.be whether trial counsel was ineffective in not introducing Griffin’s testimony from Dixon’s trial in Griffin’s trial. The first part of the analysis is whether Griffin has established that trial counsel’s performance was deficient, which requires a showing that counsel made errors so serious that his performance was less than that guaranteed by the Sixth Amendment. Such a serious error in this context would be trial counsel’s failure to introduce clearly exculpatory testimony from Dixon’s trial. What Griffin brought to the trial court’s attention is that, in response to the question whether he was just along for the ride when he and Dixon left Wishon’s residence, Griffin answered that he was ready to go. Griffin’s readiness to accompany Dixon, who earlier had purchased a bucket of gasoline and spoken of burning and blowing up Alicia Shaw’s apartment and had fired a number of shots at Griffin’s friend’s feet, indicates Griffin’s readiness to associate himself with a person who intended to and did engage in criminal activity. It is not exculpatory, and trial counsel’s failing to introduce it was not deficient in this regard.
(b) Griffin contends that trial counsel should have objected to and corrected misstatements of law made by the prosecutor in closing argument. Griffin refers the court to Issue 2 for the list of misstatements. As discussed in Issue 2, the prosecutor’s statements that Griffin complained of were not misstatements of the law.
(c) Griffin contends that trial counsel should have more extensively cross-examined Agents Jimerson and Durastanti and Shameika Holmes. The State contends that the issue was not raised before the trial court. Griffin’s response is obscure: “[M]ost of the points were clearly presented as to whether the prosecution’s evidence on these points was relevant. In addition, in assessing ineffective assistance of counsel claims, this court reviews the entire record of the trial.” It does not appear that the question of tire cross-examination of the specified witnesses was raised for the trial court’s consideration.
(d) Griffin complains that trial counsel did not object to Jimersoris and Wright’s testimony about law enforcement officers’ attempts to find Griffin during August 2001. They testified that, after Dixon was arrested, a warrant was issued for Griffin’s arrest. They looked for Griffin at the Burger King where he had been employed and at the apartment of his girlfriend, Shameika Holmes, and they conducted surveillance of both places. They expected that Griffin would try to get his paycheck from Burger King. After Holmes picked up the check, the officers followed her to Griffin’s aunt’s house in Kansas City, Missouri. Griffin left the house and ran. Thirty to 45 minutes later, officers found him hiding under a bush in the 45-degree angle of a fence.
On appeal, Griffin admits that evidence of the foot chase was relevant. He does not state specifically on what ground he contends the rest of the testimony was objectionable, but his admission seems to suggest that he contends the rest of the testimony was irrelevant.
The relevance and admissibility of flight evidence is long established. See State v. Walker, 226 Kan. 20, 22, 595 P.2d 1098 (1979). In the recent case of State v. Jamison, 269 Kan. 564, 569, 7 P.3d 1204 (2000), the court stated:
“Evidence of flight may be admissible to establish the consciousness of guilt, the commission of the acts charged, and the intent and purpose for which those acts were committed. [Citation omitted.] Even where other evidence may weaken this inference of guilt, the objection to such evidence goes to the weight rather than the admissibility. [Citation omitted.]”
Hence, trial counsel’s not raising a relevance objection did not constitute a deficient performance.
Griffin also contends that testimony about Shameika Holmes taking his wages to him is irrelevant and misleading. His contention, however, is based on speculation that is not borne out by the record. According to Griffin, a close reading of the following testimony shows that law enforcement officers suggested to Holmes, through Cassandra McClain, that she go to Griffin so that they could follow her:
“Q. Okay. Mr. Jimerson, when you were receiving this information in the 24 hour period prior to the defendant’s arrest, did you guys have somebody that was being a source for you as to what Miss Shameika Holmes was .... ■.
“A. I’m sorry.
“Q. Did you guys have someone who was a source of information that was close to Shameika Holmes in order to be able to track or anticipate her movements?
“A. Yes, it was Cassandra McClain.
“Q. What was Cassandra McClain doing?
“A. She was actually driving Miss Holmes [to Kansas City] which was great assistance to us in the surveillance.
“Q. How was she passing this information to you?
“A. Agent Wright was the one that was dealing directly with her. My job was overall supervision of tire surveillance.
“Q. Was she calling you during this time?
“A. She would call Agent Wright different times.
“Q. And give Agent Wright the plans?
“A. Yes, but I don’t think she knew exactly where she was going. That was one of the problems, we didn’t know exactly where we were going because it would have been a lot easier if we did.”
Where Holmes got the idea to take Griffin’s wages to him is not revealed, or even hinted at, in this testimony. There is no basis beyond speculation for Griffin’s contention.
Griffin contends that his trial counsel should have objected to evidence that Griffin accompanied Dixon to see Dixon’s lawyer. Griffin does not state on what ground the objection should have been made, but rather refers to the discussion of Issue 7. Issue 7 is framed as a matter of prosecutorial misconduct. As previously discussed, appellate review for prosecutorial misconduct does not depend on a contemporaneous objection.
The evidence of Griffin’s accompanying Dixon to see Dixon’s lawyer is set out in our discussion of Issue 7. It shows that Dixon asked Griffin to go to his lawyer’s office with him. Griffin said little. There was no evidence that Griffin sought legal advice or that either Griffin or the lawyer believed there was an attorney-client relationship between them. Even if the evidence was objectionable, it was brief and there would seem to be little likelihood that the jury would have inferred defendant’s guilt from the evidence that Griffin went to Dixon’s attorney’s office at Dixon’s request, said little, and established no relationship with the attorney.
(e) Griffin complains that trial counsel failed to argue that the deaths of Dana and Gabriel Hudson were not felony murders within the language of K.S.A. 21-3401(b). The statute provides: “Murder in the first degree is the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” Burglary is an inherently dangerous felony. K.S.A. 2004 Supp. 21-3436(9). Although the State asserts that this claim was not raised in the trial court, it was in fact raised by Griffin. As already discussed with regard to Issue 2, Griffin’s argument is based on an overly restrictive construction of the statute.
(f) Griffin complains that defense counsel failed to argue that there was no evidence that Griffin intended to commit a felony when he entered Alicia’s apartment the second time. In fact, trial counsel argued both that there was no evidence of defendant’s intent and that Griffin did not participate in Dixon’s felonious conduct during the second entry. In so arguing, trial counsel made the argument that Griffin now complains he failed to make. If trial counsel vigorously argued there was a lack of evidence that Griffin aided and abetted Dixon, as Griffin concedes, and placed less emphasis on a lack of intent to commit a felony within the apartment, that is merely a matter of trial strategy. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .” State v. Gleason, 277 Kan. at 644. And, as the court stated in State v. Orr, 262 Kan. 312, 333, 940 P.2d 42 (1997):
“Hindsight ... is not the vantage point from which we judge allegations of incompetence. [Citation omitted.] It may be that had defendant’s counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. [Citations omitted.]”
(g) Griffin complains that trial counsel failed to object to the testimony of three expert witnesses — Agent Durastanti, Peter Lob-dell, and Dr. Erik Mitchell.
(1) Durastanti was asked to describe his training in interviewing techniques. He also was asked about interviewing Griffin, and, based on the foundation established, at least in part, by Durastanti’s testimony, the videotape of Griffin’s interview was offered into evidence.
Griffin contends that trial counsel should have objected to Durastanti’s testimony on the ground that it invaded the province of the jury by commenting on defendant’s credibility. There is only one objectionable comment in the whole of Durastanti’s testimony. He was asked and answered: “Q. Did [Griffin] appear to be able to respond intelligently and appropriately to your questions? A. Yeah. He responded appropriately for a deceptive person, someone who was hiding something, in my opinion.”
The State contends that the comment was “rather superfluous” because when the jurors watched the videotape they could see for themselves that Griffin was evasive. The State’s observation about Griffin’s conduct during the interview is accurate to the extent that Griffin initially gave almost no information and only gradually over the hours of the interview became somewhat more cooperative. The State cites State v. Walker, 28 Kan. App. 2d 700, Syl. ¶ 6, 20 P.3d 1269 (2001), which states: “The mere fact that an officer testifies that the defendant lied, when it is obvious that the defendant did lie, is not cause to grant a mistrial.” In response to the question what a witness had said about the man in the back seat of the patrol car, the officer stated: “ 'He positively identified Robert A. Walker — well, he stated his name was Robert A. Walker, he [Walker] lied to me about his name — as being one of the individuals who was firing towards three black males.’ ” 28 Kan. App. 2d at 710. What the officer said in Walker was that the defendant had given him a false name. What Durastanti said in the present case is that the defendant was deceptive when interviewed by law enforcement. There is a difference in that Durastanti commented on defendant’s lack of forthrightness while being interviewed by law enforcement agents, and the videotape of the interview was shown to the jury so that Durastanti’s statement was a comment on the credibility of what Griffin told the agents. Durastanti’s comment was objectionable, but defense counsel did not object to it.
Although the State’s observation that Griffin’s evasiveness is plainly apparent in the videotape does not make Durastanti’s comment unobjectionable, it does weigh against the comment’s being prejudicial. The failure to object to the comment did not prejudice Griffin.
(2) Lobdell testified about “an intentional incendiary act,” “an intentional gas leak in this apartment,” and that “the defendants caused that to happen inside the apartment.” Griffin contends that whether the gas leak was intentional was a question of fact for the jury to decide and that trial counsel should have objected that the testimony invaded the juiy’s province. The trial court’s view was that Lobdell’s testimony was intended to communicate his observation that the break in the pipe would not have occurred in the absence of manual manipulation. It does appear that Lobdell’s use of the term “intentional” was meant to communicate manual manipulation rather than criminal intent. It does not appear to have been objectionable as actually invading the province of the juiy, but the testimony probably was objectionable because the particular words he used could have been misconstrued by the jurors. Lobdell’s testimony, however, added nothing to what the jurors learned from Griffin’s own evidence abut Dixon kicking over the stove. Thus, defendant was not prejudiced by trial counsel’s failing to object to the agent’s remarks.
(3) Mitchell testified that the cause of the deaths of Dana and Gabriel Hudson was exposure to heat and inhalation of fire gases and that the manner of each death was homicide. As the coroner, Mitchell completed the official death certificates for Dana and Gabriel Hudson. The certificate forms have a space for manner as well as cause of death. Mitchell’s testimony was given in connection with introduction of the death certificates into evidence. The certificates are required to be filed with the state registrar and are the official death record. K.S.A. 65-2412. K.S.A. 65-2416(b) provides that “the state registrar shall not certify a death certificate in which the manner of death is marked other than natural unless the death certificate is signed by a district coroner.” Mitchell, as the district coroner, was required to sign the death certificates of Dana and Gabriel Hudson, and, as a matter of law, he was qualified to do so. The death certificates, which classify the deaths as homicides, were admitted into evidence. Griffin does not complain of their admission. If admission of Mitchell’s testimony as to the manner of death was error for any reason, the error would be harmless because the testimony merely restated the contents of the death certificates. There was no deficiency in trial counsel’s not objecting to Mitchell’s testimony.
(h) Griffin complains that trial counsel failed to object to Jerry Hall’s testimony on the ground that his probation order required him to testify consistently with his inquisition. The State argues that the issue was not raised in the district court, and Griffin does not deny it. As we previously stated, issues not raised in the district court will generally not be considered on appeal. This issue was raised in State v. Dixon. In Dixon, we held that it was error to allow Hall to testify; however, because Hall’s testimony was basically duplicated by Rodney Hayes, it was not reversible error. For that reason counsel’s failure to object did not prejudice Griffin.
(i) Griffin complains that trial counsel’s motions were inadequate. He concedes that counsel filed 12 motions on his behalf but claims that the motions were short on law and argument and contrasts them with the presumably adequate motions filed on behalf of Dixon. That Dixon’s presumably adequate motions did not provide him a means of avoiding conviction demonstrates that, if Griffin’s counsel’s motions were wanting, no prejudice has been shown as a consequence.
4. WAS THE EVIDENCE SUFFICIENT TO ESTABLISH THAT GRIFFIN COMMITTED FELONY MURDER?
When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
K.S.A. 21-3401(b) provides: “Murder in the first degree is the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” Burglary is an inherently dangerous felony. K.S.A. 2004 Supp. 21-3436(a)(9). Griffin contends that the victims’ deaths did not occur in the commission of, attempt to commit, or flight from the second burglary of Alicia Shaw’s apartment. See Issues 2(d) and 3(e) for abbreviated forms of the same discussion.
The court has held in numerous cases that in order to determine whether the killing occurred in the commission of the underlying felony so that the defendant is subject to the felony-murder rule, the factors of time, distance, and the causal relationship between the underlying felony and the killing are to be considered. See, e.g., State v. Kaesontae, 260 Kan. 386, Syl. ¶ 1, 920 P.2d 959 (1996). “ “Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide.’ [Citation omitted.]” 260 Kan. at 390.
In State v. Jacques, 270 Kan. 173, the defendant was convicted of felony murder, with possession of cocaine as the underlying felony crime. Jacques and his friend, Everitt, formed a plan to purchase drugs in which Jacques was to stay away from the house where Everitt was going to purchase the drugs. Contrary to the plan, Jacques went to the house. Everitt was angry that Jacques failed to follow the plan, and they began a fight in which Jacques stabbed Everitt to death. Jacques went back into the house and completed the purchase. Jacques questioned the sufficiency of the evidence, arguing that he could not be guilty of felony murder because he did not possess cocaine at the time he stabbed Everitt. The court found no merit in his argument:
“When applying the felony-murder rule . . . the felony and the victim’s death do not need to occur simultaneously, nor does the felony need to occur before the death. . . .
“We hold that the death need not occur during or after the commission of the felony to support a conviction for felony murder. The question for the jury is whether the death is within the res gestae of the crime, regardless of the actual sequence of events. [Citations omitted.]” 270 Kan. at 189-90.
The court reviewed the facts in Jacques — Everitt and Jacques’ plan to buy cocaine, the attempt by Everitt to do so, Jacques’ stab bing of Everitt, and Jacques’ subsequent purchase of cocaine — in a light most favorable to the prosecution. That review showed one continuous transaction so that a rational factfinder could have concluded that the stabbing was within the res gestae of the possession of cocaine. Thus a rational factfinder could have found Jacques guilty of felony murder beyond a reasonable doubt. 270 Kan. at 190-91.
In the present case, defendant presses the issue whether the length of time between the burglary and the deaths precludes a finding of one continuous transaction. Griffin states that he has been unable to find any Kansas felony-murder case in which so much time elapsed between the underlying felony and the death. The evidence shows that the elapsed time between the burglary and explosion was approximately 21/2 to 23/4 hours. Tena Wright, who lived in the apartment next to Alicia’s, testified that she was awakened “after 6:00, about 6:15, 6:30” by a loud bang from somebody dropping something heavy on Alicia’s stairs. From this testimony and Griffin’s admission that he and Dixon returned to Alicia’s apartment after leaving Hayes and Hall at Donnie Wishon’s residence, it reasonably could be inferred that defendant was in Alicia’s apartment at approximately 6:15 or 6:30 a.m. It is established that the explosion occurred at approximately 9 a.m. The deaths resulted from the heat and fire gases that followed the explosion.
Time is only one of the factors to be considered in determining whether the deaths occurred in the commission of the underlying felony. The other two are distance and causal relationship. In this case, there is no significant distance between the underlying felony and the deaths. With regard to the causal relationship, the State contends that there was an unbroken chain of causation from the second burglary of the apartment to the fire that killed the victims. The evidence showed that Griffin and Dixon entered the apartment without authority, pushed over the stove causing the gas supply pipe to break, heard the escaping gas hissing, and fled. After they fled, tire gas continued to escape into the apartment until an unknown source touched off the explosion and fire.
The State contends that the majority rule is that there is sufficient evidence of felony murder where there is no break in the chain of events from the underlying felony to the killing. The State cites a number of cases from foreign jurisdictions. Those most relevant to the discussion are the following: Matter of Anthony M., 63 N.Y.2d 270, 481 N.Y.S.2d 675, 471 N.E.2d 447 (1984), and State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974).
In the New York case, the court prefaced its discussion as follows:
“In the two appeals before us, elderly victims of crime — an attempted purse-snatching, and a robbery and burglary — some days after these incidents succumbed to heart attacks, having shown no immediate signs of heart trouble. The central issue is whether there was sufficient proof to support the fact-finders’ determinations that the stress of the incidents was a cause of the fatalities.” 63 N.Y.2d at 275.
In the first case, defendant grabbed die handbag of an 83-year-old victim with enough force to throw her to the sidewalk. She was hospitalized with a fractured hip, underwent surgery, developed congestive heart failure, and died 10 days after the attack. In the second case, defendant robbed an 89-year-old man and his wife in their apartment, threatened them with a knife, struck him in the face, bound them, and left them lying face down on the floor. Later the same day, the man was taken to a hospital, treated for cuts and bruises, and released. Fifty-six to 57 hours after the robbeiy, he suffered heart failure and died. Both defendants contended that the causal connection between offense and heart failure was insufficiently established. Finding that each defendant’s actions forged a link in the chain of causes that brought about the deaths of the victims despite the deaths not “following] on the heels” of the injuries inflicted by defendants, the New York Court of Appeals concluded that there was sufficient evidence of causation. 63 N.Y.2d at 280-81.
In the Idaho case, defendant convinced a pharmacist to meet him at tire pharmacy after hours and then showed up wearing a gas mask and carrying a sack, which he said was a bomb. The pharmacist tackled defendant, got him in a headlock, and pushed the sack about 10 feet away. Two police officers arrived and handcuffed defendant. One officer went outside and moved the patrol car to the rear door of tire pharmacy. When he returned, he was told of the bomb threat. He went to the sack, picked it up, and was killed when the device exploded. Defendant contended that the evidence was insufficient to hold him criminally liable for felony murder. The Idaho court looked to opinions from other states’ courts for the following principles of law: Homicide is committed in perpetration of the felony if the killing and the felony are parts of one continuous transaction, and liability will be imposed where the conduct causing the death was done in furtherance of the design to commit the felony. 96 Idaho at 288. Applying the law to the facts, the Idaho court concluded that there was sufficient evidence of causation:
“The explosion causing the death of Officer Flavel clearly falls within the above two definitions. A person is criminally liable for the natural and probable consequences of his unlawful acts as well as unlawful forces set in motion during the commission of an unlawful act. The appellant voluntarily set in motion an instrumentality which carried a very real probability of causing great bodily harm. Death ensued, and the fact appellant was under arrest does not erase criminal liability.” 96 Idaho at 288.
Relying on State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003), Griffin challenges the notion that the deaths and the underlying felony are parts of one continuous transaction. His reliance is misplaced. Kunellis must be restricted to its peculiar facts. There defendant and several others stole motorcycles from a dealership, drove against traffic on a multi-lane highway when pursued by police, and killed two people in a collision. Instead of prosecuting Kunellis for the deaths as felony murders that occurred in flight from the theft, the State pursued the theory that the theft was a continuing offense. As a matter of law, the theft was not a continuing offense. Thus, the State’s arguments, the instructions, the verdict forms, and the verdict form’s box marked by the jury incorrectly stated the law. 276 Kan. at 473. For this reason, the case was reversed and remanded for retrial on the felony-murder and theft charges. 276 Kan. at 474.
In the present case, the only one of the three factors about which there is any question is time. Distance is not an issue, and the causal relationship between tire hissing gas heard by Griffin and the deaths was firmly established. The gas line was broken during per petration of the burglary, and the resulting explosion was part of the continuous transaction. Thus, viewing the evidence in the light most favorable to the prosecution, we conclude that a rational fact-finder could find beyond a reasonable doubt that Griffin was criminally liable for the deaths of Dana and Gabriel Hudson, which were consequences of the gas leak that was created during the commission of the burglary of Alicia Shaw’s apartment.
5. WAS THE EVIDENCE SUFFICIENT TO ESTABLISH THAT GRIFFIN COMMITTED AGGRAVATED BATTERY?
Three neighbors were injured attempting to assist occupants of the burning apartment building. James Woodling and Nathan Medien were injured trying to assist Tena Wright, and Rosalind Harris was injured trying to assist Stacey DePriest. Griffin contends that he cannot be held criminally hable for their injuries because the actions of rescuers were not reasonably foreseeable consequences of his actions. On the contrary, it is entirely reasonable and foreseeable that neighbors would attempt to rescue persons from a burning building and that rescuers could be injured while doing so. See State v. Anderson, 270 Kan. 68, 76-77, 12 P.3d 883 (2000) (speeding defendant charged with involuntary manslaughter when pursuing officer involved in collision that killed another motorist).
In the present case, it was reasonably foreseeable that the leaking gas would lead to an explosion and fire, that occupants of the burning building would try to escape, and that others would try to help them. Thus, Griffin should not be surprised that harm occurred in consequence of the burglary. After review of all the evidence, viewed in the light most favorable to the State, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt of aggravated battery.
6. DID THE TRIAL COURT ERR IN REFUSING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES OF FELONY MURDER?
The general rule for giving lesser included offense instructions is not followed in the case of felony murder. In felony-murder cases, the trial court is only required to instruct on a lesser included offense of felony murder when the evidence of the underlying felony is weak or inconclusive. The reason for this rule is that the killer's malignant purpose is established by proof of the collateral felony. State v. Sandifer, 270 Kan. 591, 597, 17 P.3d 921 (2001).
Griffin s trial counsel requested lesser offense instructions. The trial court declined on the ground that the evidence of the underlying felony was neither incomplete nor inconclusive.
On appeal, Griffin argues that the evidence of the burglaiy was weak and inconclusive because there was no showing that the value of the damage was more than $500 or that Griffin did anything to aid or abet Dixon.
The intent with which an entry is made is rarely susceptible of direct proof; it usually may be inferred from the surrounding facts and circumstances. State v. Wilkins, 269 Kan. 256, Syl. ¶ 4, 7 P.3d 252 (2000). In the absence of evidence of some other explanation for the second unlawful entry into the apartment in the same night, it reasonably may be inferred from Griffin s stealing property during the first entry of the apartment that when he reentered the apartment he intended to steal again. See discussion of Issue 2(a). Thus, the evidence of the underlying burglary is neither weak nor inconclusive. The trial court did not err in refusing to instruct the jury on lesser included offenses of felony murder.
7. WAS EVIDENCE THAT GRIFFIN ACCOMPANIED DIXON TO THE OFFICE OF DIXON’S ATTORNEY IMPROPERLY ADMITTED?
Griffin argues that the State should not have been allowed to elicit testimony that Griffin went to Dixon’s lawyer’s office along with Dixon and Hall. He contends that the jury was being asked to infer guilt from the evidence that he visited a criminal defense attorney. A timely and specific objection to the admission of evidence at trial must be made in order to preserve the issue for appeal. State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002). There was no objection to the testimony Griffin complains of. Griffin notes that the issue was raised before trial and decided against him and that the issue was also decided against defendant in Dixon s case. “The rationale underlying the contemporaneous objection rule is that stating the objection and grounds therefor permits the court to preclude improper evidence from affecting the decision.” State v. Gordon, 219 Kan. 643, Syl. ¶ 9, 549 P.2d 886 (1976). Because, in the circumstances, the trial court was well aware of the issue and had several opportunities to rule on it, Griffin suggests that the issue ought to be considered in the interest of justice. In State v. Wiegand, 275 Kan. 841, 844, 69 P.3d 627 (2003), the court stated that an exception to the general rule may be made where “questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial fundamental rights.”
Here is Hall’s testimony about Griffin’s going to Dixon’s lawyer’s office:
“Q. Did Wallace Dixon ever ask you to go anywhere particularly the next couple of days?
“A. He asked me to go to his lawyer s office.
“Q. Did you agree?
“A. Yes, I did.
“Q. How did you get there?
“A. Wallace came and picked me up.
“Q. And when you got to the lawyer’s office, do you know who the lawyer was?
“A. Yes, I do.
“Q. Who was it?
“A. Joe Johnson.
“Q. When you got to the lawyer’s office was anyone else there?
“A. Well, on the way to the lawyer’s office we drove by Ethan’s because Wallace wanted to bring Ethan with us but Ethan followed us to the lawyer’s office.
“Q. Did all three of you go into the lawyer’s office?
“A. Yes, we did.
“Q. You, Wallace Dixon, Ethan Griffin?
“A. Yes, we did.
“Q. Did you meet with this lawyer?
“A. Yes, we did.
“Q. Did Wallace in your presence and the defendant’s presence begin telling the lawyer what had happened?
“A. I believe Wallace said something about it because the lawyer chewed Wallace out about it. Ethan didn’t say much about it. The lawyer asked us if we would be . . . .”
An objection was sustained, and the subject was changed.
The State’s position is that the testimony is not objectionable because the evidence was introduced to establish a sequence of events rather than to suggest Griffin had a guilty mind. The State also notes that the testimony does not show that Griffin was seeking legal advice. The State’s fallback position is that, even if erroneously admitted, the testimony was harmless because it was brief and innocuous. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002).
The testimony at issue was brief. It showed that Johnson was Dixon’s lawyer, that Griffin went to Johnson’s office at Dixon’s request, and that Griffin was peripheral to the discussion. The testimony is of questionable relevance, but there would seem to be little likelihood that the jury would have inferred defendant’s guilt from evidence that Griffin went to Dixon’s attorney’s office at Dixon’s request. We conclude that the admission of the evidence was harmless error.
Dixon also raised this issue in his appeal, and we concluded it was reversible error. However, there the circumstances were different and the evidence and comments by the prosecutor were substantial rather than brief. It was not peripheral but was directed at Dixon’s seeking legal advice from his attorney. We said in Dixon:
“Viewing the prosecutor’s conduct in light of the trial record as a whole, as required, we find that the prosecutor’s eliciting testimony from multiple witnesses and then commenting on it in closing argument improperly highlighted defendant’s conduct for the jury on five separate occasions. The prosecutor’s repeated references to defendant’s contacting counsel certainly appears to have been intended to imply that only guilty people contact their attorneys and to cause the jurors to infer guilt on that basis. In these circumstances, the prosecutor’s conduct amounted to a flagrant violation of Dixon’s right to a fair trial in that the conduct penalized him for exercising his right. The jury could have found, based on other evidence, that Dixon was guilty. The jurors, however, also might have decided Dixon was guilty because the prosecutor implied that defendant must be guilty by repeatedly eliciting testimony and commenting on defendant’s contacting counsel. Under such circumstances we cannot conclude that such error was harmless.” 279 Kan. at 592.
8. DID THE JURY INSTRUCTION ON FELONY MURDER INCORRECTLY INCLUDE DEFENDANT’S FLEEING FROM AN ATTEMPTED FELONY?
Griffin complains of the instructions on the alternatives for murder in the first degree. There was no objection to the instructions at trial. The court reviews instructions by a clearly erroneous standard where there was no objection to the instructions at trial. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The instructions at issue stated in part:
“In this case, the State has charged Mr. Griffin in Count 1 [and Count 2] with the offense of murder of Dana Hudson [and Gabriel Hudson] in the first degree and has introduced evidence on two alternate theories of proving this crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that Mr. Griffin killed Dana Hudson [and Gabriel Hudson] and that such killing was done while in the commission of, attempting to commit, in flight from committing or attempting to commit aggravated arson or in the alternative by proving beyond a reasonable doubt that Mr. Griffin killed Dana Hudson [and Gabriel Hudson] and that such killing was done while in the commission of, attempting to commit, or in flight from committing or attempting to commit burglary, as set out in instruction number 26.” (The complained-of phrase is underlined.)
On appeal, Griffin argues that because K.S.A. 21-3401(b) does not include flight from attempting to commit an inherently dangerous felony, the instruction is an incorrect statement of the law. The instruction may be flawed but not in the way Griffin points out. Where the instruction purported to present the alternative theories of first-degree murder, it actually repeated the felony-murder theory twice and omitted the premeditated-murder theory. The second quoted paragraph of the instruction should have followed the pattern instruction, which states:
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed_and that such killing was done while (in the commission of) (attempting to commit) (in flight from [committing] [attempting to commit])_or in the alternative by proving beyond a reasonable doubt that the defendant killed-intentionally and with premeditation, as fully set out in these instructions.” PIK Crim. 3d 56.02-A.
As can be seen in this excerpt from the pattern instruction, flight from attempting to commit an inherently dangerous felony is included. “The Pattern Instructions for Kansas were developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions, and while they are not required, they are strongly recommended for use by Kansas trial courts.” State v. Beck, 32 Kan. App. 2d 784, 786, 88 P.3d 1233 (2004). Although it might have been better practice for the trial judge to have selected only the parenthetical phrases that fit the facts of this case, in which event the challenged phrase would not have been included in the jury instruction, the phrase is not a misstatement of the law.
9. WAS THE JURY PROPERLY INSTRUCTED WITH REGARD TO THE PREDICATE CRIMES FOR THE BURGLARY CHARGES?
With regard to the second burglary, the jury was instructed:
“To establish this charge, each of the following claims must be proved:
1. That Mr. Griffin knowingly entered or remained in a building which is a dwelling;
2. That Mr. Griffin did so without authority;
3. That Mr. Griffin did so with the intent to commit a theft, and/or aggravated arson, a felony, and/or criminal damage to property, a felony, therein; and
4. That this act occurred on or about the 29th day of July, 2001 in Lyon Counfy, Kansas.”
There was no objection to the instruction at trial. On appeal, Griffin contends that the jury should have been required to agree on one of the three intents — theft, aggravated arson, or criminal damage to property. He cites State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2001), for the proposition that, when multiple acts could form the basis of a criminal count, jury unanimity is required.
The State correctly states that this is an alternative means question rather than one of multiple acts. The distinction is well stated in the following excerpt from State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994):
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for tire single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“In multiple acts cases, on the other hand, several acts are alleged and any one of them could, constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]” 255 Kan. at 289-90 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
Jury unanimity was not required. Griffin does not contend that there was not substantial evidence to support each of the alternative means.
10. WAS THE TRIAL COURT’S RESPONSE TO THE JURY’S QUESTION AROUT INTENT REQUIRED FOR AGGRAVATED ARSON MISLEADING OR CONFUSING?
The trial judge’s response to the jury’s inquiry was neither misleading nor confusing. We note that if there was any confusion due to the trial court’s response, it probably worked in defendant’s favor. In addition, we need not consider this issue since Griffin was acquitted of the charge of aggravated arson.
Affirmed.
Luckert and Gernon, JJ., not participating.
Rulon, C.J., and Larson, S.J., assigned. | [
80,
-24,
-20,
-98,
9,
96,
58,
124,
113,
-93,
-96,
83,
45,
-35,
1,
121,
59,
85,
85,
105,
84,
-73,
31,
65,
-78,
-5,
49,
-41,
-78,
74,
-27,
-12,
72,
112,
90,
93,
38,
-118,
-31,
84,
-86,
-124,
-72,
-40,
81,
0,
52,
42,
22,
31,
53,
-114,
-13,
43,
18,
-53,
72,
42,
75,
-83,
80,
-87,
-86,
15,
-53,
16,
-93,
20,
-66,
39,
-48,
60,
24,
61,
1,
104,
115,
-124,
-122,
-12,
111,
-119,
-84,
-89,
119,
41,
29,
-95,
-88,
-63,
47,
31,
-113,
-89,
-103,
73,
11,
101,
-106,
-99,
105,
86,
38,
122,
-25,
68,
125,
-12,
12,
-50,
-72,
-111,
75,
40,
-126,
-13,
-21,
105,
-96,
81,
-50,
-26,
92,
69,
122,
-33,
-86,
-10
]
|
The opinion of the court was delivered by
Harvey, J.:
This was an action in the nature of a creditor’s bill to set aside two deeds alleged’ to have been executed by a husband to his wife for the purpose of defrauding creditors, particularly the plaintiff. The trial court found for plaintiff and rendered a judgment and decree setting the deeds aside. Defendant Lizzie Nesbitt appeals.
Appellant first contends she was entitled to a jury trial, which the court refused. The action was one in equity in which the parties were not entitled to a trial by jury as a matter of right. (McCardell v. McNay, 17 Kan. 433; Postlethwaite v. Edson, 106 Kan. 354, 187 Pac. 688.)
Appellant next contends the finding and decree of the court have no support in the evidence. The facts disclosed by the record may be summarized as follows: For as long as twenty-five years the defendant, Joseph Nesbitt, and his wife, Lizzie Nesbitt, and their family lived upon and operated a farm in Graham county. The title to 680 acres of this land was of record in the name of Joseph Nesbitt and was unencumbered. He transacted his banking business at the plaintiff bank, where he borrowed relatively small sums occasionally. Because of his financial standing he was not asked to give security for these loans. In May, 1932, his notes to the bank being larger than usual, the bank asked him to make a financial statement, which he did. In this statement he listed the several tracts of his land and placed a value upon each. These totaled $15,000. He also listed ten horses, six mules, sixty head of cattle, one hundred hogs, grain and machinery, valued at $4,300, none of which was encumbered. He listed his only debts as $1,800, the amount of his notes to plaintiff. When his notes to the bank became due in 1933 it was learned he had conveyed all his land, except the 160 acres on which he lived, to members of his family. Two of these tracts he conveyed to his wife by separate deeds, each reciting a consideration of “one dollar and love and affection.” He had also made a shipment of the livestock to market in his wife’s name and had the proceeds remitted to another bank and there deposited in her name, and he had been drawing on the account. He had also turned over to some of his children his mules, to be paid for. after awhile at a price to be determined, and had made some disposition of much of his other personal property. Plaintiff’s cashier went to defendants’ home and talked with them about the matter and offered to renew the notes if both Mr. and Mrs. Nesbitt would sign them. Mrs. Nesbitt.said to her husband: “Well, if you can’t renew these notes without me signing them, I will deed the land back to you.” He replied: “No, you won’t do that'. When I give you a present, I want you to keep it.” She said: “I won’t sign the notes because I didn’t make the debts; they are your debts, but you can have the land.” He replied: “I don’t want thp land.” He did tell the cashier that he would try to fix it up some way. A few days later he went to the bank and offered to renew the notes with his own signature. The bank declined to renew them, sued on the notes, and obtained judgment. Thereafter it brought this action.
In the trial Mrs. Nesbitt testified that many years ago her husband had bought one of the two tracts in question for $375, had paid $75 in cash and given a mortgage on the land for $300; that later, and about 1908, she received $400 as an inheritance from the estate of her mother and a brother; that she gave this money to her husband, who agreed, in consideration therefor, to deed her this tract of land, but he never had done so until in 1933. She further testified that about 1910 she inherited 40 acres of land from a sister, and from the record it appears she still owns that. She said that about 1915 or 1916 she paid- the rents from her own land, $1,000, to her husband, in consideration of a deed to the other tract of land involved in this action, but did not get the deed for it until in April, 1933. Joseph Nesbitt testified substantially to the same effect. Other members of the family, called as witnesses, knew practically nothing about these arrangements, but testified that rent for the land in question, in some year or years, was paid to Mrs. Nesbitt. There was no record, nor was there any writing, evidencing these transactions between Mr. and Mrs. Nesbitt testified to by them. The court found the evidence introduced on behalf of Lizzie Nesbitt to be insufficient to establish the existence of an indebtedness from her husband to her and insufficient to establish ownership in her of any of the real estate described in the two deeds in controversy. We are of the opinion the trial court was correct in its conclusions.
It is true, as argued by appellant, that a husband and wife may deal with each other with respect to their separate property. However, evidence of such transactions should be clear and convincing before it should be held sufficient to defeat creditors. See Hardcastle v. Hardcastle, 131 Kan. 319, 291 Pac. 757, and cases there cited.
We find no error in the record. The judgment of the court below is affirmed. | [
-48,
111,
-80,
29,
74,
96,
42,
-102,
67,
-93,
55,
87,
-23,
66,
4,
109,
6,
45,
85,
120,
-60,
-78,
7,
-31,
-46,
-5,
-103,
-115,
-80,
73,
-28,
-41,
12,
48,
74,
-43,
-26,
-46,
-63,
24,
-114,
-63,
-87,
69,
-40,
8,
48,
-85,
86,
74,
49,
-65,
-13,
42,
29,
70,
72,
46,
75,
61,
80,
-16,
-70,
13,
95,
19,
17,
37,
-124,
7,
72,
42,
-112,
55,
1,
-56,
115,
-74,
22,
84,
15,
25,
41,
118,
98,
49,
60,
-49,
48,
-119,
46,
-9,
-99,
-89,
-46,
88,
3,
40,
-66,
-99,
125,
84,
6,
-2,
-28,
-123,
28,
108,
3,
-49,
-42,
-109,
-117,
60,
-108,
11,
-13,
-93,
-76,
113,
-49,
-30,
92,
71,
123,
-69,
-114,
-15
]
|
The opinion of the court was- delivered by
Hutchison, J.:
This appeal is from a conviction of grand larceny in the district court of Brown county of one who for many years had been in the automobile tire and accessory business in St. Joseph, Mo. The information charged the defendant with having stolen in Brown county, Kansas, on or about the-day of May, 1933, four tires, four inner tubes and four rims of the value of more than $20 belonging to one Frank King.
The principal witness for the state was one Earl Corder, who, at the time of the trial, was serving a term in the Kansas penitentiary for burglary and larceny committed in Marshall county and had been in penal institutions twice before. He testified that he went to Mr. King’s garage at the request and under the direction of the defendant, for whom he had been working for several months, and was told by defendant to get the four tires off the King truck and bring them in as he wanted them for an Iowa man the next morning. A man by the name of Barker went with him and they removed the tires, inner tubes and also the rims and took them to the defendant in his place of business in St. Joseph and helped put the tires and inner tubes on the Iowa truck the next morning after the rims had been removed from the tires, and that the defendant gave him $32 for them; that he had stolen many tires during the previous year and delivered them to the defendant and he always told the defendant where he got them and he usually received about $5 per tire after he had ceased working for the defendant on salary.
Three rims were found in the defendant’s place of business by city police and sheriffs in searches made by them in July or August of that year, which rims were identified by Corder and Frank King as being the ones belonging to and taken from the King automobile in May, 1933.
The state offered and introduced over defendant’s objections evidence as to the finding about the same time of other automobile accessories in defendant’s place of business that were claimed to have been stolen from other places and belonging to other persons, and evidence of claimed owners identifying the same as having been stolen from them within a year. The trial court made numerous rulings on the objections of the defendant as to the competency, relevancy and materiality of such testimony, to which rulings exceptions were taken by the defendant and to the overruling of defendant’s motion for an instructed verdict of acquittal and to the two motions for a new trial.
As assignments of error the defendant in his brief as appellant outlines the following four.questions involved:
“1. Error in overruling defendant’s motions for new trial.
“2. That the district court erred in overruling defendant’s motion for a directed verdict of acquittal.
a. Alleged stolen articles not identified.
b. Value of alleged stolen articles not established.
“3. Error in the admission of evidence.
a. Other and unrelated and unproven crimes and course of conduct.
b. Admission of hearsay testimony.
“4. Remarks and attitude of district court throughout trial clearly prejudicial to rights of defendant.”
Appellant in presenting the first question involved leaves the ruling on the first motion for a new trial for consideration under other headings, but directs special attention to the ruling on the second motion. For consideration of this, question some dates are of particular importance. As stated above, the larceny was charged to have been committed in May, 1933, and some evidence shows three rims and other articles were found by police officers and sheriffs on the defendant’s premises when searches were made by them in July and August, 1933. The trial was had in the month of November, 1933. The verdict of guilty of grand larceny was rendered on the 21st of November, 1933. The first motion, for a new trial was promptly filed and was heard and overruled on the 28th of the same month and defendant was sentenced thereafter on the same day. The notice of .appeal was served on the county attorney, November 28, 1933, and the appeal was duly filed in this court on January 6, 1934, and the appeal has been pending here since that date.
The second motion for a new trial was filed in the district court of Brown county on December 27, 1934. The terms of district court in Brown county were at the time of the trial, and are now, in February, May and November. The motion is supported by two affidavits of parties that had been in jail or penitentiary with witness Corder. One affiant states that he heard Corder say in the penitentiary that he had “framed” Max Handler in order to get his time cut and had testified falsely against Handler for that purpose. The other stated in his affidavit that he was in the Brown county jail with Corder just before the Handler trial and he heard the county attorney, sheriff and deputy sheriff of Brown county tell Corder to go ahead and testify against Handler and they would see to it that his time would be cut. The trial court struck this second motion for a new trial from the docket. The appellant insists this was error, especially since Corder was the principal witness for the state and that the state filed or presented no affidavit or other evidence in opposition to the two affidavits supporting the motion. We see no error in thus disposing of this second motion for a new trial. The court found that it was frivolous and filed for the purpose of vexation and delay. The motion itself contained the sub stance of the affidavits offered in support thereof, namely, that the evidence offered was newly discovered, that it showed the principal witness for the state had made statements in the presence of other inmates in the state penitentiary that he “had framed” the defendant in order to get his time cut, and had testified falsely against the defendant at the trial in order to get in good with the county attorney and sheriff to get a parole sooner than he otherwise would. With these statements in the motion before the trial court the finding that the motion was frivolous and should be stricken from the docket was equivalent to an order overruling it. Under these and other circumstances stated in this opinion we find no error in this ruling.
The appellant’s second assignment of error is because the rims were not sufficiently identified and the value of the articles charged to have been stolen was not established. As to the identification of the rims, there is the testimony of King, who said he especially recognized them by having observed spots of red paint on them which he had not seen on others of the same kind and make, also the testimony of Corder, who said he recognized them as the ones he had taken off the King truck and had seen them separated from the tires in defendant’s place of business before the tires were placed on the Iowa truck. On cross-examination Corder said he might not be able to distinguish these three rims from others of exactly the same kind, size and make. The well-recognized rule is, as appellant cites from 17 R. C. L. 65, as follows:
“The prosecution must identify stolen property found in the possession of the accused with that for the theft of which he is indicted, and this must be done by the most direct and positive testimony of which the case is susceptible.”
It is argued that other rims of the same size, kind and make might have on them spots of red paint, but there goes with the identification of these two witnesses the statement of Corder that the rims were removed from the King tires in the defendant’s place of business before the tires were placed on the Iowa truck, which helps to locate them in defendant’s possession.
In the case of State v. Callabresi, 135 Kan. 463, 11 P. 2d 725, wheat alleged to have been stolen was held .to have been sufficiently identified by having some grains of white wheat mixed with the usual red grains of wheat, there having been about 25 bushels of white wheat in the bin before 200 bushels of red wheat were also put in that bin, all of which was removed and part of it said to have been stolen.
In the case of State v. Swanzy, 78 Kan. 889, 97 Pac. 1134, the identification was held to be sufficient between a butchered animal and one alleged to have been stolen while alive.
Some of the cases cited by appellant were where the only evidence on the subject of identity was circumstantial. In the case at bar the evidence was not circumstantial. The rule 'that such identifying testimony is required to be the most positive and direct of which the case is susceptible (17 R. C. L. 65) surely does not extend to the limit of an impossibility where two things look exactly alike. We think there was sufficient identification of the rims under the authorities above cited.
As to the value of the articles alleged to have been stolen not being established, the appellant insists that the only evidence of the value of these articles was that of King as to the new price of the articles and the service or use they had had. To this statement in his testimony must be added his further statement of the usual and ordinary service such articles afforded. In answer to the question of the value of these articles he said: “I don’t just remember. I figured them up, somewheres in the neighborhood of one hundred sixty-five dollars.” They were almost new. They had been driven around seven or eight thousand miles; it could have been as much as ten thousand miles. The tires cost when they were new about thirty dollars apiece. The usual mileage on such tires is about 150,000 miles. These were practically new tires. The rims cost when new five or six dollars apiece; the tubes around six dollars each.
The only purpose of proving value in this case was to distinguish between the two crimes, grand larceny and petty larceny, and if the evidence shows an actual or market value' of more than $20 for all the articles proved to have been taken, the crime would be grand larceny. Appellant cites 36 C. J. 908 and 17 R. C. L.'66, both of which are very strong as to the necessity of competent evidence of the market value rather than estimated value or original cost and extent of use, which reason very strongly against the sufficiency of the evidence of the owner, King, when taken alone and not viewed in the light of various exceptions to and modifications of any such general rule. The very section in the first citation above, after stating the general rule, states that — •
“Evidence of the price which the owner had paid for stolen property shortly before its theft, or which had been received for it or property of the same kind, since the theft, or which accused had refused to take for it, is sufficient to sustain a verdict based on the value so determined.” (p. 908.)
Besides, the evidence of the owner is not all the evidence here as to value. The witness Corder stated the defendant gave him $32 for these articles. In the case of State v. Mall, 112 Kan. 63, 209 Pac. 820, it was said:
“In one count of larceny, the evidence tended to show that the stolen . article was worth more than $20, but the defendant was convicted of petit larceny therefor. Held, not error.” (Syl. J 6.)
The case of State v. Bolton, 111 Kan. 577, 207 Pac. 653, was one for the stealing of an Exide battery, found by the jury to be grand larceny, and, in the opinion, it was said on page 579:
“Complaint is made that the value of the property stolen was not sufficiently established. There was testimony and enough of it to show that the value of the battery taken exceeded $20, the amount essential to the offense of grand larceny. The market value of a new batrery was shown to be $25 and the one in question had only been used for a few days. One witness did place a valuation of $18 upon it, but the testimony of another fixed it at $25 and the jury was warranted in finding that its value was more than $20.”
We think the combined evidence of these two witnesses is more than sufficient to meet the requirement of a market value of more than $20.
The next error assigned is in the admission of evidence which concerns other property said to have been found in the possession of the defendant near and about the time of the commission of the offense charged in this case, and appellant, although he recognizes the rule as to the admission of evidence of the commission of other similar offenses to show motive, intent, habit, inclination, plans and system of operation, yet he strenuously insists that there was no evidence that any of the property was stolen or that the defendant knew it was stolen or as to how it came into the possession of the defendant. Appellant cites the case of State v. Wheeler, 89 Kan. 160, 130 Pac. 656, as to the danger of proving other distinct and unconnected offenses and the general danger of the jury’s using some irrelevant matter derived from testimony of other transactions to solve the doubt because of former or other delinquencies, citing several other Kansas cases. There is always risk in any lawsuit of the jury, or even well-informed trial courts, along the lines of many such close questions, but the cases cited do not disallow the use of such closely related testimony because of the danger of its being misused by the jury, but positively permit it within certain limited bounds and for restricted purposes. One of the cases cited by appellant, State v. Ridgway, 108 Kan. 734, 197 Pac. 199, contained such caution, but held notwithstanding such caution that — .
• . . evidence relating to the subject of commission of other larcenies by the defendant was properly admitted at her trial on the charge of grand larceny.” (Syl. ¶ 1.)
This was a case of a nurse found guilty of grand larceny where evidence was admitted showing goods were missing from at least four other homes where she had been employed and some of the missing articles were found in her possession.
Another case cited by the appellant as to necessary caution in the introduction of evidence of other offenses showing method, inclination, plan and system of operation is State v. Mall, supra, where it was held:
“The instructions properly limited the effect of testimony touching a large amount of goods seized in the defendant’s room, other than the articles for the theft of which she was on trial. Such evidence was competent as tending to show that the goods for whose theft she was on trial were taken pursuant to a system of thieving pursued by the defendant.” (Syl. ¶ 4.)
There is no complaint of the instruction in the case at bar in that particular. Space would not permit a detailed analysis of the testimony of each of the several witnesses whose testimony is mentioned by appellant as not being within the recognized rule as to such matters, but we may incidentally mention that several of the witnesses for the state, and especially Edwards, Kimmel and Critchlow, each had property stolen from them recently that was either found at defendant’s place of business or at the police station, where the police officers testified they had taken such articles after finding them in defendant’s possession. We think the evidence as to other property having been recently stolen and found in defendant’s place of business was competent for the limited purpose above stated, and that purpose was properly defined and stated in the instructions given the jury on that subject.
The case of State v. Frizzell, 132 Kan. 261, 295 Pac. 658, is cited by appellant in favor of limiting the admission of evidence as to similar offenses to the well-recognized exceptions. One of the four mentioned is “similarity of system or plan.” In that case there was no question raised as to there having been a bank robbery, but the identity of the parties was the only matter to be established.
Objection is made to the admission of an answer of witness King which is claimed to have been hearsay evidence. It was that the rims taken from him were Firestone rims and later he said the man that sold them to him had told him they were that kind. Much of our common knowledge comes to us in this way and whether it is hearsay or not, strictly speaking, it cannot be prejudicial in this instance. (R. S. 62-1718, State v. Thompson, 23 Kan. 338; State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Morton, 59 Kan. 338, 52 Pac. 890; State v. Coy, 140 Kan. 284, 36 P. 2d 971; and State v. Hooper, 140 Kan. 481, 503, 37 P. 2d 52.)
The last error assigned is based upon the remarks and attitude of the district court throughout the trial. We have just held that there was no substantial error in the rulings of the trial court in the matter of the admission of evidence, and that the rule of our statute and decisions' limits reversals on appeal to errors that affect the substantial rights of the defendant. The remarks and comment of the trial court on the evidence being offered and introduced, as set out in the brief and abstract of the appellant, are such as could not with propriety be made in the instructions of the court to the jury, and yet, as the appellant correctly states, these remarks were in the hearing of the jury and might possibly have had the same or similar effect on them and their weighing of the evidence as if made in writing a few hours later. While we cannot very well approve the making of so many remarks as to the nature, purpose and force of the evidence offered and introduced, yet there was at least a partial justiñéation for it, and that was the making of frequent and almost constant objections to the introduction of evidence of other similar instances, notwithstanding the explanation of the court of the ruling and of the evidence being admitted for certain limited and restricted purposes, which the learned counsel for the appellant recognized in the making of one such objection. The court went further than usual in so repeatedly giving reasons for the admission of such evidence, but the making of such repeated remarks seems to have been invited and almost made necessary by the constant objections and arguments in support thereof.
The court also asked witnesses questions several times, which is not usual, but we are not of the opinion that the appellant was prejudiced thereby or by the remarks and comments made under the circumstances.
We find no error in the overruling of the motion for a new trial.
The judgment is affirmed. | [
112,
-23,
-8,
61,
10,
-32,
10,
-102,
74,
-95,
-76,
-41,
41,
78,
5,
121,
-6,
29,
-44,
99,
-9,
-73,
23,
-109,
-110,
-77,
-39,
-51,
-67,
91,
-92,
-106,
14,
112,
-118,
29,
38,
64,
69,
28,
-50,
0,
-87,
-46,
-39,
16,
36,
41,
20,
10,
-47,
14,
-25,
42,
28,
-33,
105,
44,
-53,
43,
88,
-16,
-23,
-121,
125,
22,
-93,
2,
-72,
5,
88,
63,
-104,
49,
0,
-8,
115,
-90,
-122,
116,
111,
-103,
12,
38,
70,
5,
29,
-49,
-20,
-104,
14,
-14,
-115,
-89,
-100,
72,
64,
101,
-98,
-99,
103,
18,
6,
-4,
-9,
21,
89,
40,
7,
-113,
-16,
-111,
13,
36,
22,
-104,
-21,
-91,
51,
97,
-51,
98,
77,
22,
122,
-101,
30,
-79
]
|
The opinion of the court was delivered by
Hutchison, J.:
We have here two cases involving the same subject matter that by stipulation are to be considered together. One comes to this court by appeal, and the other is an action in quo warranto brought originally in this court on the relation of the attorney general of the state.
The first case is an injunction action commenced in the district court of Sedgwick county by Claude I. Depew and eight other members of the bar of Sedgwick county and members of the Sedgwick County Bar Association, on behalf of themselves and all other practicing attorneys of Sedgwick county; to restrain and enjoin the defendants from the illegal practice of the law. The defendants are the same in both cases, being The Wichita Association of Credit Men, Incorporated, and M. E. Garrison. The injunction case was commenced by filing the petition therein on July 12, 1933. It was tried in the third division of the district court of Sedgwick county commencing on May 17,1934, and judgment was rendered therein in favor of the plaintiffs, and injunction was granted February 13, 1935, from which judgment an appeal was regularly taken by both defendants, and a cross appeal was also taken by the plaintiffs upon rulings adverse to them.
The quo warranto case was filed in this court- on May 3, 1934, just a few days before the commencement of the hearing of the evidence in the injunction case in the district court. A stipulation has been filed permitting the evidence in the injunction case to be considered as evidence in the quo warranto case. Depositions were also taken and filed in the quo warranto case.
Appropriate answers of general and special denial were filed by the defendants in both cases. Findings of fact and conclusions of law were requested by both parties to be made in the injunction case and were made, and an injunction order was made against the defendants restraining and enjoining them and their agents from doing or performing certain acts held by the findings and conclusions to be practice of law, but was not allowed as to some other acts of which the plaintiffs complained.
The main legal questions involved in the injunction action, as stated by the appellants are: (1) What is practicing law? and (2) What acts or business of defendants, or either of them, come within the term “practicing law,” and which do not?
In the review of this injunction case we are not confronted with the question of the jurisdiction of the district court in matters of unlawful practice of law, as we were in a similar case brought by the same plaintiffs against the Wichita Retail Credit Association, appealed to this court and opinion reported in 141 Kan. 481, 42 P. 2d 214, nor the questions as to injunction being the proper remedy and the right of the plaintiffs to maintain such an action, because on review of, the injunction case at bar we have the quo warranto case associated with it and the two are being considered together.
The main questions involved in the quo warranto case, as claimed by the appellants, are:
1. What is the true scope of the charter powers granted to defendant association by its charter?
2. Are these powers within the authorized purposes of the charter act?
Two preliminary legal questions applicable - to both cases are presented by the appellants. The first one is that the matter of defining the term “practicing law” and prescribing the. qualifications of those entitled to do so is a legislative function and not judicial, citing R. S. 7-102 as the -only legislative expression as to who shall be admitted to practice law, and their qualifications, and that the legislature at no time has attempted to define the term “practicing •law.”
R. S. 7-102 is as follows:
“Any citizen of the United States who has read law for three years in the office of a regularly practicing attorney, or who shall be a regular graduate of the law department of the university of Kansas or some other law school of equal requirements and reputation, and who satisfies the supreme court of this state that he possesses the requisite ability and learning and that he is of good moral character, may be admitted to practice in all the courts of this state upon taking the oath prescribed.”
Such statutory regulation is effective and directory when in accord with the inherent power of the judiciary because of the licensees being officers of the court. (In re Casebier, 129 Kan. 853, 284 Pac. 611; In re Hanson, 134 Kan. 165, 5 P. 2d 1088; State, ex rel., v. Perkins, 138 Kan. 899, 28 P. 2d 765.) Of course a subsequent session of the legislature could repeal or amend such section, and could also, with due regard to such inherent power as to the qualifications and conduct of those authorized to appear before the court as officers thereof, very helpfully define what is meant by the term practicing law. But no such definition has been given us by our legislature, and it is therefore a question for construction as to the intent of the legislature. “The proper construction of a statute is a question for the court.” (59 C. J. 944.)
The other preliminary legal question urged by 'the appellants is that to deny these defendants by statute, or construction thereof, or both, of the right and privilege to carry on and transact the business which the evidence shows them to be carrying on and transacting, would be to deny them the rights, privileges and immunities guaranteed to them by the constitution of the United States, particularly the fifth and fourteenth amendments thereto (depriving of life, liberty or property without due process of law, and equal protection of the law); would also be in violation of section 10, article 1, of the United States constitution (by impairing the obligation of a contract); and also in violation of section 2 of the bill of rights of the state of Kansas (by granting special privileges), and section 11 of the bill of rights of the state of Kansas (by depriving them of liberty of speech). We are not cited to any Kansas authority in support of this proposition.
We recall Kansas decisions holding that the rights conferred upon an attorney-at-law in this state are not property rights, but rather a license or privilege. In In re Casebier, 129 Kan. 853, 284 Pac. 611, it was held:
“Counsel also suggest that the right to practice law is a form of property which is invaded by our compliance with the statute. We hold not. The right to practice law is a privilege conferred upon a specially qualified class of persons for the purpose of assisting the state and its tribunals to administer justice.” (p. 855.)
The Casebier case was followed and approved in In re Hanson, 134 Kan. 165, 5 P. 2d 1088.
In the case of State, ex rel., v. Perkins, 138 Kan. 899, 28 P. 2d 765, it was held:
“This court has constitutional, statutory and inherent jurisdiction to inquire by what authority one assumes to practice law in this state and to make appropriate orders relating thereto. . . .” (Syl. II 2.)
The same conclusion has been reached as to licenses and privileges granted to men in other professions, as physicians, dentists, etc. (See State v. Creditor, 44 Kan. 565, 24 Pac. 346; State v. Wilcox, 64 Kan. 789, 68 Pac. 634; Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; State v. Johnson, 84 Kan. 411, 114 Pac. 390; and State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408.)
We are unable to agree with the contention of the appellants on either of these two preliminary legal propositions.
The trial court made the following findings of fact and conclusions of law in the injunction case:
“Findings of Fact and Conclusions of Law
“i
“Plaintiffs are dtdy licensed attorneys-at-law engaged in the practice in Wichita, Kansas. They filed this action on July 12, 1933, against The Wichita Association of Credit Men, which is a corporation chartered under the laws of Kansas but without authority to practice law. Also against Mr. M. E. Garrison, who is executive secretary and manager of the corporation. None of the salaried employees of the association, or M. E. Garrison personally, is a licensed practicing attorney.
“The charter of the association states that it is organized for profit but as actually conducted the receipts and expenditures equalize each other so that no profit is paid by the association. The association was organized in 1913 and since that time has taken in large sums of money each year, all of which was paid out for expenses and for employees, Mr. Garrison receiving as high as $10,000 a year salary. As many as twenty-two persons have been in the em ploy of the association. There are a number of departments in the association but only a portion of its work is attacked in this case.
“For 1933 Mr. Garrison received a salary of $7,500, with the agreement that he should receive $10,000 if the association earned it and 50 percent of the earnings above that.
“ii
“Facts. The association as one portion of its work conducts a collection department for its members and affiliate members, also other items which may be turned in. In a general way the collection department is conducted similarly to the usual collecting agency, using the Commercial Law League of America rates as a basis of charge. Personal collectors are sent out and the usual number of duns and so forth.
“Conclusions. Such a commercial collection department as handled in this way does not constitute the practice of law.
"in
- “Facts. In handling collections during 1932 and a portion of 1933 this department, under the direction of Elmer Garrison, Jr., son of the defendant in this action, prepared a mimeographed bill of particulars and filed approximately 25 actions for various parties in justice of the peace courts in this state. In each case1 the mimeographed copy was filled in with the names of the parties, the_ court, necessary dates and amounts, signed by the plaintiff, by Elmer Garrison, Jr., as agent for the plaintiff. These were filed with justices and if trial was unnecessary an attorney was not employed. If not settled an attorney was employed in the cases.
“Likewise, under the direction of Elmer Garrison, Jr., an employee of the association, there were prepared what were called intervening petitions, being mimeographed instruments which were filed in cases in the district court of Sedgwick countj'-, Kansas, by the said Garrison, he having filled in the title of the case and the necessary information constituting an intervening petition similar to plaintiff’s exhibit 4 in this action, with a statement of account attached. Exhibit 4 was filed on the 23d day of March, 1934.
“Conclusions. Preparation and filing of such bills of particulars and intervening petitions constitutes practice of law.
“iv
“Facts. Up until the change of the Commercial Law League rules at the beginning of 1934 it was the custom of the association in handling accounts to collect an attorney fee of $7.50 from the forwarder of the claim in addition to the usual percent collection fee. The association turned such accounts over to attorneys at the various points of collection, usually to the same attorney in Wichita, and at other points to such an attorney as was selected from the lists, and doing so retained $2.50 of each $7.50 of attorney or suit money fees, The gross on such attorney or suit money fees amounted to about $2,000 per 3'ear, of which the association kept one third. About January 1, 1934, in conformance with the Commercial Law League rules the association stopped keeping the $2.50.
“Conclusions. Such a practice was improper and not in accord with good ethics, and the furnishing of such business to an attorney and collection and retention of a portion of the fee or the percentage allowed for collection, constituted the practice of law.
“v
“Facts. The defendant Garrison, for himself and the association, used blanks and sent out solicitations of proofs of claims and powers of attorney in bankruptcy proceedings and holding such powers of attorney voted for and elected himself as trustee in cases pending in the bankruptcy division of the federal court. As trustee he turned over accounts for collection to the collection department of the association and paid collection fees for the same. He also voted claims in the bankruptcy court and did such other things as a holder of a power of attorney is accustomed to do.
“Conclusion. This is set up as a part of the general method of doing business of the association, and being in the federal court this court is of the opinion that it has no jurisdiction over the same, and no conclusion of law is made.
“vi
“Facts. One department of the work of the association that has been of considerable importance has been the making of agreements or assignments for the benefit of creditors, and the use of what is known as a trust mortgage, whereby M. E. Garrison as trustee liquidates businesses, makes settlements with creditors, instead of the usual bankruptcy procedure in the federal court or receivership in state courts. Under such agreements as plaintiffs’ exhibit No. 40 the business is not brought into court for liquidation but is handled outside by Garrison as trustee.
“An owner of a business in financial difficulties is seen by a representative of the association or he calls upon the association or is sent in by a creditor or someone else interested. It is the custom of M. E. Garrison to advise with him, explain to him the difference between such an arrangement and bankruptcy proceedings and inform the business man what he considers to be the advantages of the liquidation without bankruptcy. While Mr. Garrison does not prevent him from seeing his attorney he attempts by statements or representations to show him the advantages of the plan being outlined and if the prospect is agreeable has him sign a contract. Plaintiff’s exhibit T2’ among other things provides for the taking of an audit of the business at $25 per day, paying a commission for supervising and adjusting the claims of the creditors. The contracts used in these cases were prepared some years ago by a now distinguished Wichita attorney. Such papers, agreements and so forth as are needed for the complete handling of the business in this liquidation are furnished by the association, prepared blanks being used. The contracts prepared and signed and the resulting work on the part of the representatives of the association results in complete liquidation of the individual business, for which the association receives compensation. The liquidating merchant receives all the necessary advice through Mr. Garrison and officers of the association.
“Conclusions. The liquidation of a business by this method, the contracts and forms used and the advice given with services which require legal skill and knowledge constitutes practice of law.
“vn
“Facts. The association, through its representative in the handling of various kinds of business, and in its various departments, uses blank notes, drafts, blank mortgages and similar blanks obtainable at any bookstore, and the filling out of which does not require any particular legal knowledge. No specific charge is being made for these items but is a part of the general business and incident thereto.
“Conclusion. The use of such blanks unless specific advice of legal rights is given at the time of their use and upon which there is no evidence in this case would not constitute the practice of law.
“vm
“Conclusion. Being without authority to practice law, all the acts and practices as heretofore found to constitute practice of law are illegal.
“Defendants have continued filing intervening petitions in the district court during the pendency of this action and there is danger that they may continue to do so. They also continue to threaten to continue the liquidation of businesses as set out in finding number 6.
“Injunction is a proper remedy, and the defendants should be and are enjoined from doing either of said acts as set out in the preceding paragraph or in findings 3 or 4 or any other acts herein found as constituting the practice of law.
“Injunction should also run against all of the agents, servants and employees of each of the defendants.”
Thereafter the court rendered the following injunction order:
“Thereupon, on the 8th day of December, a.d. 1934, it is by the court ordered, adjudged and decreed that the defendant, The Wichita Association of Credit Men, Inc., all of its officers, agents, servants and employees, and each of their successors, and M. E. Garrison, his agents, servants and employees and each and every one of them be and hereby are restrained, inhibited and permanently enjoined from severally and jointly doing or performing any of the following acts:
“First. From preparing or filing in any district court in this state or before any justice of the' peace of this state for or on behalf of another any pleading or other document. From appearing for or representing another in any manner in any action or proceeding pending in any district court in this state or in a court of any justice of the peace in this state.
“Second. From receiving and furnishing of claims or collections to an attorney upon which the defendant or defendants is or are to receive a portion of the collection either at the beginning or as a percentage allowed upon the collection either directly or indirectly.
“Third. From preparing, furnishing or causing to be prepared and furnished in connection with the assignment, transfer or pledging of a debtor’s business or property or any part thereof, any agreement or assignment) for the benefit of creditors, or any trust mortgage, or any agreement for the supervision of the debtor’s business, or any chattel mortgage, deed or lease, or other instrument of a similar nature or character in connection with such transaction whereby legal rights are' affected or determined, and from giving advice as to legal rights under any such instrument or instruments; from the assignment or transfer of property for the benefit of creditors by whatever means or instruments used by which legal rights are affected or determined and from giving legal advice thereon. This order is not to apply to use by the' defendants in their business of blank notes, drafts and similar blanks ordinarily obtainable at a bookstore and the filling out of the same where no legal skill or knowledge is required and where no advice as to legal rights in connection therewith is given and no compensation or remuneration is received therefor, either directly or indirectly.”
We shall consider together the two questions involved, as stated by appellants, viz.; What is practicing law, and what acts or business of defendants, or either of them, come within the term “practicing law” and which do not? The appellants do not especially find fault with the findings of fact as made by the trial court, but they argue most strenuously that the facts which the evidence shows, and some of which the trial court found, do not justify the conclusions reached by the trial court. We find that there was sufficient evidence to support the findings. We shall therefore direct our special attention to the arguments for and against the conclusions of law, acknowledging in the first place that we have no definition of the practice of law given us by any legislative enactment, and further recognizing that the definitions given by legislative enactments in the few states where it has been done are very different, and, also recognizing that it is quite difficult to harmonize views of text writers on the subject, and that some of the court opinions go farther than others where there is no statutory definition.
The many authorities cited by counsel for appellants do not present any new or different conclusion or reasoning from those presented and exhaustively considered in the recent case of State, ex rel, v. Perkins, 138 Kan. 899, 28 P. 2d 765, which concerned facts in many ways similar to those in the case at bar, and it can safely be said of this case, as it was said of that case, that this is not a boundary-line case and therefore the minute, detailed and discriminating verbiage of a definition is not necessary to apply to the facts presented and found in the case at bar. These facts can be properly classed as more or less general because they appear to be, generally speaking, the things that most people know are being done by attor neys-at-law in their professional work. In the opinion in the Perkins case it was said:
“This brings us to the question of what is practicing law. The general meaning of the term is of common knowledge, although the boundaries of its definition may be indefinite as to some transactions. We shall not bother with boundary-line distinctions here, for this is not a boundary-line case. A general definition of the term frequently quoted with approval is given in Eley v. Miller, 7 Ind. App. 529, 34 N. E. 836, as follows:
“ 'As the term is generally understood, the practice of the law is the doing or performing of services in a court of justice, in any matter pending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court, (p. 535.)’
“In The People v. Peoples Stock Yards Bank, 344 Ill. 462, it was said:
“ 'In litigated matters it involves not only the actual representation of the .client in court, but also services rendered in advising a client as to his cause of action or defense. The practice of law also includes the giving of advice or rendering services requiring the use of legal skill or knowledge. . . (p. 907.)
After citing many authorities bearing on the subject, it is further said in this opinion on page 908 that—
“One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.”
Defendants insist that many changes have recently taken place in the active business and conduct of the legal profession, that attorneys are not pursuing the same lines as they formerly did, citing particularly the collection of claims, notes and accounts; that some of the earlier lines of business of the profession have shifted to other agencies that are better equipped to handle them, and that the profession has failed to keep abreast of the development of modem business. This argument was most certainly recognized by the trial court in the making of the findings of fact and conclusions of law Nos. 2 and 7 concerning the making of ordinary personal collections and filling out ordinary blanks obtainable at any bookstore, without the giving of advice thereon or making any charge therefor, which conclusions were in favor of the defendants, and they are affirmed by this court.
The defendants argue at great length the merits and benefit to the community of the defendant association of credit men. We have no inclination to question those assertions in the least, but they will not justify the association in going farther than those meritorious and commendable activities by encroaching upon the professional work and privileges of others. They cite numerous instances of similar organizations doing the same line of business the defendants are charged with doing, and cooperation being given them in such work by thousands of attorneys in the United States — being on their commercial lists. But neither of these grounds would justify the association in the case at bar going beyond its legal authority into the work of another profession. Defendants cite the thirty-fourth section of the code of professional ethics of the American Bar Association as not condemning the splitting or division of commissions for collections of liquidated commercial claims by a lawyer with one who is not a lawyer, but the next section in the code has an important bearing thereon by requiring that there be no intervention between the client and the lawyer so as to prevent the personal and direct relation between the two.
Defendants charge the legal profession with attempting by these actions to maintain a monopoly and prevent competition. That may be good retaliatory argument, but it cannot affect a licensed privilege while it legally exists.
Defendants complain seriously of the third conclusion reached by the trial court and the allowing of an injunction against the doing of the acts enumerated in the third finding about an employee of the association bringing collection actions in the justice of the peace court and signing the bills of particulars as the agent of the plaintiffs and also filing intervening petitions in the district court. The defendants admit the facts and say none of the officers of the association knew such was being done, and they ordered it discontinued as soon as they learned of it, and they testify that it has not been done since and they promise it will not be done again. On the strength of this promise they claim the necessary element of threat or danger in an injunction case is lacking, and therefore no injunction can be granted to cover that finding. This general principle of law may be correct, but the feature of reliance on a promise, if it were a personal case, is different from reliance upon the promise of a corporation and its officers and manager, all of whom may be replaced and their successors may feel differently about obeying such a promise. Courts are not required to accept and rely upon promises under all circumstances, and unless they do so rely thereon, the danger of repetition of a wrong may be prevented by injunction.
The defendants maintain that all the things with which they were charged were fully within the true scope of the charter power granted the association. They do not claim that the association has a right to practice law, and of course it could not be so authorized; neither is the other defendant an attorney-at-law. So their defense to the second case is the same as to the first, that the things they have been doing under their charter are not within any reasonable definition of practicing law. If this court should affirm the conclusions of the trial court in the injunction case, to the effect that the defendants were, in doing certain things enumerated in the findings, practicing law, that will not necessitate a forfeiture of the charter, because it does contain provisions which will fully justify its retention for the performance of such legal and proper purposes. In other words, if the association may have gone further than its charter rights permitted, the charter, will not necessarily have to be forfeited, but such matter will be in the discretion of the court.
Numerous other points and arguments are contained in the briefs of defendants, which have been carefully considered, but deemed not necessary to be separately enumerated and discussed in the opinion.
The plaintiffs also on their cross appeal in the injunction case urge as errors of the trial court its failure to make many of the findings and conclusions as submitted by them, and they particularly urge as an error the failure of the trial court to make a conclusion of law as to the facts in finding No. 5, which covers the actions of the defendants in bankruptcy cases in the federal court, where the court assigned as a reason for not doing so that the trial court had no jurisdiction over such matters. General Order No. 4 in Bankruptcy, promulgated by the United States supreme court, requires substantially all the activities in such proceedings to be presented and handled by the parties interested, in person or by an attorney, which includes some of the acts enumerated in finding No. 5. This general order is part of section 53 of the United States Code Annotated under Title 11 — Bankruptcy, and is as follows:
“Proceedings may be conducted by the bankrupt or debtor in person in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. Every party may appear and conduct the proceedings by attorney, who shall be an attorney or counsellor authorized to practice in the district court. The name of the attorney or counsellor, with his place of business, shall be entered upon the docket, with the date of the entry. All papers or proceedings offered by an attorney to be filed shall be indorsed as above provided and orders granted on motion shall contain the name of the party or attorney making the motion. Notices and orders which are not, by the act or by these general orders, required to be served on the party personally may be served upon his attorney.”
Rule two of the United States district court for the district of Kansas, which is now in effect and was at the time of filing the petition in this case, is as follows: )
“Rule Two. Admission of attorneys. Any person admitted to practice law in the supreme or any circuit or district court of the United States, or in the highest Court of general jurisdiction in any state or territory, on motion of .a member of the bar of this court in good standing, made in open court, shall be admitted to practice law in this court upon taking the following oath:”
In the opinion in the case of Savings Bank v. Ward, 100 U. S. 195, at page 199, it was said:
“Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant of authority of their clients may be regarded as attorneys-at-law within the meaning of that designation as used in this country. . .”
In In re Scott, 53 F. 2d 89, it was said:
“The examination of the bankrupt and the participation in the election of a trustee by others than the creditor himself is the practice of law as generally understood and is so recognized by the courts. See In re Looney (D. C.) 262 F. 209, and In re H. E. Ploof Machinery Co. (D. C.) 243 F. 421. (p. 93.) (See, also, In re N. S. Dalsimer & Co., 56 P. 2d 644.)”
In 6 C. J. 583 it is said:
“A court has jurisdiction to disbar an attorney for misconduct committed outside of the state or in the court of another county. So also a state court may discipline counsel for unprofessional acts committed in the federal courts or before the United States land office.”
In 2 R. C. L. 1098 it is said:
“A state court may disbar an attorney for an act committed in respect to proceedings in a federal court.”
In In re Minner, 133 Kan. 789, 3 P. 2d 473, it was held in the first paragraph of the syllabus that—
“Being found guilty of a felony under a federal statute in a federal court of the district of Kansas subjects an attorney at law, admitted to the bar of this state, to the automatic disbarment provisions of R. S. 7-110, the same as being found guilty of a felony under a state statute in a Kansas state court of record.”
And in the opinion, on page 792, it was said:
“There is nothing in our statute, R. S'. 7-110, to indicate that any distinction or difference was intended by the legislature to be made with reference to the felony being one under a federal or state statute.”
We are of the opinion that the trial court did have jurisdiction in the matter of proceedings enumerated as taking place in bankruptcy proceedings in the federal court, and could and should have made an appropriate conclusion which should have been to the effect that such acts on the part of the defendants as enumerated in finding No. 5 were the practice of law and such acts should therefore have been included in the injunction order. We approve of all the other conclusions made by the trial court as copied herein and hold that the acts, transactions and conduct of the defendants enumerated and contained in findings Nos. 3, 4, 5 and 6 are within the general understanding and definition of practicing law and should be enjoined, and also that the same ruling should apply in the quo warranto case to the effect that all of the findings made by the trial court, except findings Nos. 2 and 7, are the enumeration of things that are beyond the power conferred by the charter of defendants and should not be further practiced, but we do not order the charter to be forfeited.
All the motions of both plaintiffs and defendants in the injunctioh case, including the motions for a new trial, are overruled except the motion of the plaintiffs as to conclusion No. 5, and the judgment of the trial court in the injunction case is modified as above prescribed as to No. 5, and otherwise the judgment of the trial court is affirmed and the cause is remanded with instructions to include items in finding No. 5 in the injunction order, and with such modification the judgment is affirmed.
The order in the quo warranto case is that findings and conclusions as modified and approved in the injunction case be adopted in the ■quo warranto case, and that such practices as are therein enjoined be held to be beyond the charter rights and powers of the association, and that it and its officers and agents refrain from further exceeding its charter provisions, but that the charter be not forfeited. | [
-12,
-21,
-6,
-34,
74,
-32,
56,
-70,
81,
-79,
-11,
83,
-19,
-42,
5,
109,
-37,
45,
84,
105,
-57,
-74,
3,
89,
-46,
-13,
-13,
-35,
-69,
-49,
-12,
-106,
76,
48,
66,
-43,
-58,
-62,
-59,
28,
-50,
5,
9,
-19,
-47,
12,
-76,
91,
22,
11,
113,
110,
-15,
40,
28,
-61,
41,
60,
-53,
109,
-111,
-72,
-68,
-115,
93,
18,
49,
38,
-104,
7,
-24,
62,
-112,
51,
-120,
120,
114,
-90,
-58,
116,
109,
-103,
44,
54,
98,
41,
-79,
-18,
-72,
-120,
14,
51,
-115,
-90,
-77,
120,
-22,
13,
-66,
-67,
101,
18,
7,
-2,
-25,
5,
27,
108,
15,
-49,
-44,
-77,
-105,
119,
24,
19,
-21,
-63,
16,
85,
-57,
50,
93,
-10,
27,
123,
-122,
-108
]
|
The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted in the police court of violating a zoning ordinance, and on appeal the same result followed in the district court. He now brings his case to this court for review.
The material facts were these: Norton is a city of the second class. In 1931 the city adopted a zoning ordinance regulating and restricting the establishment of commercial enterprises and related matters of no present concern. The city was divided territorially into zones or districts, in a fashion which has become familiar in litigation. One of these was designated “business .district,” in which various industrial activities were forbidden, including—
“(12) Creamery, cream or produce-buying station or milk-distribution establishment other than distribution of milk in connection with a retail business.”
There was a provision in the ordinance permitting “nonconforming uses,” the substance of which was that any lawful use of property existing at the time the ordinance was adopted might be continued under limitations not necessary to be stated here.
In Norton city there is a public square, with business streets abutting on every side. On the street on the south side of the square and facing it there were three cream-buying stations established and in operation when the zoning ordinance was adopted in 1931
On August 29, 1933, this defendant set about the establishment and operation of another cream-buying station on the same street and in the same block, which was in a “business district” as defined by the zoning ordinance.
For this violation of the zoning ordinance he was fined $5 and costs. Against this judgment, affirmed in the district court, he now raises questions of constitutional law, the gist of which is that the statute which confers upon the cities of this state the power to enact zoning ordinances violates fundamental principles of constitutional government. The contention' is made that the state itself could not enact a valid statute granting the right to certain citizens to pursue an occupation or business and deny that right to other citizens. And what the state itself could not do, it cannot empower its cities to do. The second premise may be conceded, but is the first premise correct and sound? Dealing with the point concretely, cannot the state call a halt on the number of cream-buying stations which may be tolerated in the business section of a city? It is well understood that statutes and ordinances regulating and restricting the classes of business which may be conducted in cities are based on the state’s police power. The constitutional provision that the state shall not deprive any person of his property without due process of law does not apply to mere regulatory limitations as to the use of his property. The police power of the state extends not only to regulations pertaining to health, safety and public morals but to the public convenience also. (C. B. & Q. Railway v. Drainage Comm’rs, 200 U. S. 561, 592.) However, we need not go afield in a search for precedents on this particular phase of the question. The validity of our zoning statutes was sustained as against constitutional attack in Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99. Other cases sustaining the main features of city zoning ordinances are West v. City of Wichita, 118 Kan. 265, 234 Pac. 978; State, ex rel., v. Wade, 128 Kan. 646, 278 Pac. 1067; Armourdale State Bank v. Kansas City, 131 Kan. 419, 292 Pac. 745; Hoel v. Kansas City, 131 Kan. 290, 291 Pac. 780; Simmonds v. Meyn, 134 Kan. 419, 7 P. 2d 506; Ford v. City of Hutchinson, 140 Kan. 307, 37 P. 2d 39. See, also, Euclid v. Ambler Co., 272 U. S. 365, 71 L. Ed. 303.
On the point that the ordinance discriminates in favor of persons whose property was devoted to some legitimate use before the ordinance was adopted by permitting the continuation of such “nonconforming” use, it must be noted that the statute back of the ordinance does that very thing. It reads:
“Ordinances passed under authority of this act shall not apply to existing structures nor to the existing use of any building, . . .” (R. S. 13-1103.)
Such discrimination is necessary if city zoning is to be undertaken at all — unless all “nonconforming” structures and uses are to be banned from zones created for the benefit of conforming uses. Such an alternative would ordinarily be too drastic for legislative or judicial countenance, although it has been done in Los Angeles, according to Williams on “The Law of City Planning and Zoning,” page 201. In Metzenbaum’s textbook, “The Law of Zoning,” this subject is discussed thus:
“It is customary for zoning ordinances to provide that a then existing and used structure may continue to be employed for its then purpose, though its location and use may be at variance with, and not in conformity to, such respective zoning ordinances.
“Such exceptions are generally referred to and classified as ‘nonconforming uses.’
“Obviously, it would be inequitable and an unnecessary destruction of building values, to even attempt to annul or prevent the use of then existing structures.
“However, it is the common rule for zoning ordinances to provide that such ‘nonconforming uses’ may not be extended, except to a limited degree, and may not be rebuilt or again so employed in the event of a destruction of a greater percentage of such a building.
“Some ordinances have quite detailed and specific provisions limiting the right of such ‘nonconforming’ uses.
“Within a period of another twenty years, a large number of such ‘non conforming’ uses will have disappeared, either through the necessity of enlargement and expansion, which invariably is forbidden or limited by ordinance, or by the owners realizing that- it is unwise and uneconomic to be located in a district which probably is not suitable for the nonconforming purpose, or by obsolescence, destruction by fire or by the elements or similar inability to be used; so that many of these nonconforming uses will ‘fade out,’ with a resulting substantial and definite benefit to all communities.” (p. 287.)
In City of Aurora v. Burns, 319 Ill. 84, it was held:
“A building zone ordinance is not discriminatory merely because it permits a building already erected and devoted to a prohibited use' to be continued in such use after the passage of the ordinance, such use being lawful at the time the ordinance was passed, as the exception is based upon a reasonable classification, and it would be unjust to deprive an owner of property of the use to which it was lawfully devoted when the ordinance became effective.” (Syl. If 3.)
In the later case of Minkus v. Pond, 326 Ill. 467, the Illinois supreme court tacitly stated that the City of Aurora case superseded earlier Illinois decisions, but the general principles of zoning as therein stated were reaffirmed;
In Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, the defendant was fined for a violation of a city zoning ordinance which forbade the maintenance of a mortuary in a district zoned for residential purposes. The ordinance, like the Norton city one under present consideration, authorized the continuation of the use of the land in operation at the time of the adoption of the ordinance although such use did not conform to its provisions. The supreme court held:
“Provision authorizing the continuation of the use of land in operation at the time of the adoption of an ordinance creating such district, is not an unreasonable discrimination in favor of the nonconforming uses in existence at the time the ordinance was adopted.” (Syl. If 8.)
In the opinion on this point the court said:
“We do not find that these provisions create an unreasonable discrimination in favor of the nonconforming uses in existence at the time the ordinance was adopted. (Zahn v. Board of Public Works, 195 Cal. 497, 234 Pac. 395; City of Aurora v. Burns, 319 Ill. 84, 149 N. E., 784; Commonwealth v. Alger, 7 Cush. 53; Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N. E. 265.) The impracticability, if not impossibility, of prohibiting the continuation of a use to which land has already been devoted, is sufficient and reasonable basis for the apparent discrimination involved in the failure to make the ordinance retrospective'. In many instances the existing uses are not permanent in their nature, and the principle of ‘zoning’ appears to be founded in an effort to so regulate the future physical development of a city that the unrestricted congestion of traffic and housing will not increase or be repeated.” (p. 88.)
In Spector v. Building Inspector of Milton, 250 Mass. 63, to an objection to a zoning ordinance which tolerated existing structures and uses in a zoned district while forbidding the erection of new buildings not in harmony with the zoning plan, the supreme judicial court said:
“There is nothing 'about the zoning by-law which denies to the petitioner the equal protection of the laws. The provision exempting from its prohibition of business or commercial uses existing buildings in district A and permitting additions, alterations or enlargements upon cause shown, are unobjectionable. A classification of this nature does not deny the equal protection of the laws. It is based upon sound distinctions. To exempt buildings already devoted to a use from a prohibition of such use of other buildings or buildings thereafter erected in a specified area is not unequal but lawful. (Commonwealth v. Alger, 7 Cush. 53, 103.) To permit alterations, enlargement, or replacement of such buildings stands on the same footing as the initial classification. (Quong Wing v. Kirkendall, 223 U. S. 59; Welch v. Swasey, 193 Mass. 364, affirmed in 214 U. S. 91; Ayer v. Commissioners on Height of Buildings in Boston, 242 Mass. 30, 32.)” (p. 70.)
Counsel for appellant cite cases and authorities which hold that city ordinances must be reasonable. Our own reports are replete with the same doctrine; and, indeed, this court has more than once stated that any unjust or unreasonable effect of a zoning ordinance on some particular situation is not beyond judicial redress (Armourdale State Bank v. Kansas City, supra); but we discern nothing unjust or unreasonable in the ordinance of the city of Norton as applied to the case before us.
The judgment is affirmed. | [
-15,
-2,
-4,
-84,
90,
32,
60,
-76,
90,
-96,
-27,
55,
47,
-37,
21,
57,
-45,
127,
21,
105,
-59,
-78,
2,
2,
-74,
-13,
-53,
-35,
-75,
77,
-10,
-57,
-52,
32,
-54,
125,
70,
74,
-63,
-34,
-58,
37,
-117,
73,
-15,
65,
54,
106,
114,
79,
21,
-49,
-77,
44,
17,
-57,
104,
44,
27,
47,
113,
-7,
-66,
-99,
108,
22,
50,
32,
-104,
-121,
-8,
94,
-104,
17,
-128,
-24,
115,
-28,
-106,
116,
71,
-101,
-120,
34,
99,
3,
9,
-17,
-24,
-115,
14,
122,
-83,
-89,
-112,
24,
35,
10,
-100,
-99,
116,
6,
6,
116,
-50,
-43,
91,
124,
-115,
-121,
-76,
-93,
-49,
112,
-126,
-112,
-49,
39,
17,
49,
-58,
-82,
127,
98,
80,
91,
-113,
-44
]
|
The opinion of the court was delivered by
Hutchison, J.:
The appeal in this action involves the ruling of the trial court in sustaining the motion of the defendants in a foreclosure action to set aside the judgment, the order of sale and the confirmation thereof under R. S. 60-3009 because the judgment was void.
The judgment was rendered on August 20, 1932, and the motion to set the same aside as void was filed July 20, 1934. The note and mortgage involved had been executed by a husband and wife in the usual manner. The husband died and left surviving him his wife and one daughter, Charlotte, who was of age at the time the foreclosure petition was filed. The wife and daughter were both made parties defendant and were both personally served with summons.
The petition asked personal judgment against the wife, as she had signed the note with her husband, and also asked that the judgment be decreed a first lien upon the property covered by the note, and that the claims, rights or interest of both defendants be decreed to be subject and inferior to that of the plaintiff. In other words, only a judgment in rem was asked against the daughter.
The wife and daughter filed an answer, and by mistake a personal judgment was rendered against the daughter as well as against the wife. The property was sold by the sheriff under order of sale, and the sale was confirmed. Nearly two years after the rendition of the judgment the following motion was filed by both the wife and the daughter:
“Motion
“First: Come now the defendants and move the court to set aside as to each of them, the judgment rendered on the 20th day of August, 1932, against them in this action for the reason that the said judgment is erroneous and void and the court did not have jurisdiction to render the same.
“Second: Defendants further move the court to set aside the order of sale issued to the sheriff of Sedgwick county, Kansas, on the 31st day of August, 1932, in this action, g,nd also to set aside the purported sheriff’s sale made under said order of sale on the 5th day of October, 1932, for the reason that said order of sale and said purported sheriff’s sale were based upon a void judgment.
“Third: Defendants further move the court to set aside the order of confirmation made on the 15th day of October, 1932, for the reason it purports to confirm a sale that was never made, and for the further reason that the purported sale was based upon a void order of sale and a void judgment.”
The following are two paragraphs of the journal entry of the ruling of the trial court on this motion:
“That thereafter on the 26th day of October, 1934, the court rendered its decision and final -order upon the motion and made findings as follows:
“ ‘The first paragraph of defendant’s motion as it relates to Jessie M. Daniels is overruled, and is sustained as to Charlotte Sedonia Daniels; and is sustained as to the second and third paragraphs of said motion.’
“It is, therefore, considered, ordered and adjudged by the court that the first paragraph of defendants’ motion as it relates to the defendant, Jessie M. Daniels, should be, and the same is hereby overruled, and that the personal judgment against the defendant, Charlotte Sedonia Daniels, should be, and the same is hereby set aside and held for naught.”
The next two paragraphs sustain the last two parts of the motion and set aside the order of sale and the order of confirmation.
It is frankly conceded by appellant that no personal judgment should have been rendered against the daughter, and in its reply brief appellant substantially admits that such personal judgment against the daughter was void to that extent and could be reached under R. S. 60-3009, but insists that only that part of it is irregular or void and it should not affect the proceedings which followed, as the order of sale and the confirmation of sale would be just the same under a judgment in rem against the daughter as under a personal judgment, except the deficiency judgment, and that would be entirely disposed of by the setting aside of the personal judgment against the daughter, as was done by the trial court in the portion of the journal entry above quoted. Under R. S. 60-3009 if the judgment is void it can be vacated at any time.
In the case of Hardcastle v. Hardcastle, 131 Kan. 627, 628,. 293 Pac. 391, it was held that “this court has ample authority to modify the judgment as to the portion which is void under the provisions of R. S. 60-3009.”
' A very similar ca'se is that of Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, where the wife did not sign the notes with her husband, but did execute the mortgage. The journal entry of judgment showed the rendition of a personal judgment against the wife as well as the husband, and the court held:
“A judgment entirely outside the issues in the case and upon a matter not submitted to the court for its determination, is a nullity; and may be vacated and set aside at any time upon motion of the defendant.” (Syl. ¶ 1.)
In Insurance Co. v. Carra, 101 Kan. 352, 166 Pac. 233, the land included in the mortgage being foreclosed was in two different counties. The sale as to one part was void and it was held could be set aside at any time, but as to the other land it was not error to refuse to set aside the judgment.
In the early case of Challis v. Headley, 9 Kan. 684, it was held:
“On the hearing of a motion to set aside as void a decree in a suit to foreclose a mortgage after service hy publication, only those reasons stated in the motion are proper subjects of consideration.
“That such a decree contains a personal judgment for money, even if unauthorized, would not avoid the order of foreclosure and sale.
“Where a motion is made to set aside an entire judgment, if any portion is valid and regular the motion should be overruled.
“On a motion to set aside a judgment as void, no inquiry can be made into the validity of the subsequent proceedings.” (Syl. ¶¶ 1-4.)
Many other cases are cited, but the test as to whether or not such a judgment is void in any particular is the issues formed by the pleadings. There was no issue in the pleadings in the case at bar as to any indebtedness of the daughter. It was not so pleaded or claimed by the plaintiff and there was no issue on which a personal judgment against her could be based. In this way this case is distinguishable from the case of Skaer v. Capsey, 127 Kan. 383, 273 Pac. 464, and other cases cited in this connection. The first part of the journal entry as to sustaining the motion as to the judgment against the daughter might be considered as covering the judgment in rem as well as the personal judgment, but the trial court in the next paragraph of the journal entry makes it clear by limiting the sustaining of the motion as to the judgment against the daughter to the personal judgment by stating “that the personal judgment against the defendant, Charlotte Sedonia Daniels, should be, and the same is hereby set aside and held for naught.”
There is no reason assigned why the judgment as to the order of sale and the confirmation thereof should be set aside except that they follow a void judgment, which would be sufficient if no part of the judgment was valid. But here there remains a perfectly valid-judgment in rem against the daughter, and in addition a good personal judgment against her mother.
Attention is directed to an apparent confusion of names of plaintiff bank and other banks said to have been in the process of merger, one of which was the purchaser at the sheriff’s sale and one said to be acting as trustee. But none of these matters affect the rights of the defendants. There is no suggestion of having to pay the obligation a second time, or losing any right or privilege by reason of the other banks becoming interested in the property or the judgment, and without such risk or danger the rights of the defendants are not affected and such confusion of names will not be a cause for setting aside the judgment, order of sale or the decree of confirmation.
As to the ruling on the judgments against the wife and daughter, the action of the trial court is affirmed, but in setting aside the order of sale and confirmation thereof it is reversed. | [
-15,
104,
-7,
44,
-117,
96,
-22,
-104,
82,
-79,
-90,
-45,
-21,
-54,
5,
109,
115,
45,
85,
105,
-25,
-77,
7,
-103,
-46,
-77,
-111,
-35,
-9,
-35,
-12,
-41,
76,
32,
10,
-107,
-58,
-126,
-121,
84,
-116,
-125,
-87,
100,
-39,
10,
52,
-5,
86,
13,
-43,
-18,
-13,
43,
28,
-46,
-24,
40,
-53,
110,
-48,
-80,
-87,
-115,
127,
19,
-111,
39,
-100,
-59,
104,
46,
-104,
53,
0,
-24,
115,
-90,
-106,
116,
77,
27,
40,
102,
66,
1,
-107,
-17,
-72,
-120,
14,
86,
-115,
-89,
-112,
88,
34,
33,
-74,
-103,
100,
48,
7,
-10,
-18,
-123,
28,
-20,
12,
-54,
-106,
-79,
30,
126,
-102,
11,
-29,
-95,
50,
113,
-50,
-96,
92,
71,
59,
59,
-50,
-80
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff to recover damages against defendants for personal injuries inflicted on plaintiff when struck by an automobile operated by a third person. A demurrer to the petition was overruled, and defendants appeal.
The petition alleged that defendants were engaged in buying and selling new and secondhand automobiles, and maintained and operated a garage and repair shop as part of their establishment. Merle Young, who was nineteen years old, was an employee of defendants — in what capacity, whether as mechanic or otherwise, is not stated. In December, 1932, defendants owned a Ford coupé, 1922 model. On December 18, 1932, defendants sold the automobile to Young and delivered possession to Young. On the evening of December 20 Young was driving the automobile on a street of the city of Fort Scott, and while doing so struck plaintiff and injured him.
The petition described the condition of the automobile as follows:
“The said plaintiff says that at the time the said defendants gave possession of said automobile to the said Merle Young it was in a dangerous and defective condition and in such a condition that it was dangerous to persons and property to operate the same on the public highways; that the brakes on said automobile were worn thin and would not stop the automobile when applied, and the headlights would not burn, and if burning, were not visible for three hundred (300) feet in the direction in which the automobile was proceeding, and the steering apparatus of said automobile was loose and worn and defective and in such a condition that the automobile could not be properly and effectively controlled, and the said automobile did not have a suitable horn, and a part of the footboard on the said automobile was gone, which affected the use of the brakes.”
There was also a statement in the petition that the automobile . was a nuisance.
The petition alleged defendants knew, or should have known, the condition of the automobile and the danger attending its operation, and contained the following:
“The said plaintiff says that at the time he was struck by said automobile he was crossing said Third street and said automobile struck said plaintiff for the reason that the said Merle Young was unable to properly, readily and effectively control or guide or stop said automobile and was unable to see the said plaintiff in time to readily and effectively control or guide or stop said automobile and avoid striking plaintiff, on account of the dangerous and defective condition of said automobile, and said Merle Young was unable to warn said plaintiff of the approach of said automobile by reason of the fact that there was no proper horn on said automobile, or other device, with which to give warning.”
The petition alleged plaintiff was struck on account of the negligence of defendants and of Merle Young, and the negligence which constituted the cause of action against defendants was specified as follows:
“That the negligence of the said defendants consisted of selling or attempting to sell and in giving possession of said automobile to their said employee, and permitting their said employee to operate said automobile in its dangerous and defective condition on the public streets and highways of said city of Fort Scott, Kansas.”
The brief of plaintiff clarifies the theory of the petition by disclaiming that liability is predicated on the ground an automobile is a dangerous instrumentality per se, or on the ground of ownership by defendants, or on the ground of respondeat superior.
There is no allegation in the petition that defendant’s concealed the defective condition of the automobile from Young, or failed to inform Young of the defects. There is no allegation that Young was either ignorant of or failed to appreciate the danger attending use of the automobile. There is no allegation that Young was incompetent, or unskillful, or careless, or otherwise objectionable as an automobile driver. So far as the petition discloses, defendants may have had no reason to expect that Young would drive the automobile on the city streets at night without lights and without doing anything to make operation of the vehicle reasonably safe by exercise of proper care and skill.
The transaction between defendants and Young is not definitely described. The words, “attempted to sell,” have no fixed meaning, and the facts are not stated. There is nothing in the petition to show that Young did not acquire full power of control of the automobile on his own account, and since ownership by defendants is immaterial, and relation between defendants and Young affording basis for application of the rule of respondeat superior is immaterial, the expression may be ignored.
It is said in the petition that defendants “permitted” Young to drive the automobile. Permission is something which may be granted or withheld, affecting conduct of another. Defendants could sell and deliver to Young, or not, as they chose. With delivery defendants lost control of the situation, and Young could do as he pleased. Defendants could then neither permit nor refuse permission to drive. Therefore, the expression in the petition can have no meaning, except that defendants supplied an automobile to Young, which he was free to drive and did drive.
It adds nothing to the allegations of the petition relating to ownership and sale of the automobile, its condition, and the circumstances and consequences of its use, to call the automobile a nuisance. The facts control, and the substance of the petition is, that because of its defective condition, use by Young of the automobile as he used it imperiled travel on the street.
While the petition does not plead the statute prescribing regulations concerning operation of motor vehicles on the highway, the petition was drawn with the statute in mind, and the statute is one basis for calling the automobile a nuisance. Pertinent portions of the statute read:
"That every automobile using any public highway of this state shall show between one half hour after sunset and one half hour before sunrise two lamps exhibiting white lights, visible at a distance of three hundred feet in the direction toward which the automobile is proceeding, and shall also exhibit a red light, visible at the rear end.....
“Every such motor vehicle while in use on public highways shall be provided with good and sufficient brakes, and also with a suitable bell, horn or other signal. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100), or be imprisoned in the county jail for not more than six months, or by both such fine and imprisonment.” (R. S. 1933 Supp., 8-122.)
The penal provision of this statute applies only to one who uses the highway in violation of the statute. Manifestly,' defendants could not be prosecuted for Young’s act. Also, the statute establishes a standard of care for the operation of automobiles on the highway. It does not prescribe a duty to be fulfilled by a dealer who sells an automobile and then has nothing more to do with it.
There is also a statute forbidding operation of a motor vehicle by a minor under age of fourteen years, and by an intoxicated person. (R. S. 8-121.) This statute has no application to the present controversy, except it shows that Young’s minority has no bearing on this case.
The liability contended for by plaintiff is that of a secondhand dealer in automobiles. In the interest of public safety he must recondition a dangerously defective car before selling it as a motor vehicle for use as such, or suffer the consequences. The liability would not, however, stop with the secondhand dealer. It would extend to an owner who turned in his car to a dealer in payment of part of the price of a new car, if the dealer sold the car, without repairing it, to a third person who injured somebody else; and this would be true, even if the dealer promised to repair before selling, and the last buyer promised to repair before using the automobile. The court declines to go that far.
Normally the secondhand dealer’s duty to the person to whom he sells is to inform the buyer of the defective condition of the automobile. (Restatement, Torts, § 388.) Discharge of that duty relieves the seller of liability to the buyer, and to persons who may be injured through operation of the automobile by the buyer. If the seller should know the automobile is incapable of safe use, but is capable of being made safe for use, his duty would be discharged by giving the information relating to its condition, unless from facts lcpoVá) on.uih^ch he should know, the seller should realize there is substantial probability the buyer will use the automobile without remedying the defects. (Restatement, Torts, § 389 and Comment c.) In that event, turning the dangerously defective automobile over to a buyer who will likely put it to immediate use in its defective condition would resemble turning a safe automobile over to a driver known to be unfit to use it. (Priestly v. Skourup, post, p. 127, 45 P. 2d 852.)
It is believed the Restatement goes as far as the decisions, and fair deductions from the decisions, will permit. The court prefers to let the legislature create a new liability, if one is to exist.
The petition in this case was not framed in accordance with the theory of liability which has been indicated, and does not present the conditions upon which a secondhand dealer might be.held liable. The essentials of the petition are that defendants sold Young a dangerously defective automobile, Young used it, and plaintiff was injured because of the condition of the ’automobile. That is not sufficient to warrant recovery from defendants by plaintiff.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
-16,
104,
-31,
-84,
27,
96,
42,
90,
113,
-95,
37,
23,
-95,
-56,
68,
41,
-2,
63,
85,
107,
-3,
-78,
23,
-109,
-46,
-77,
-5,
-43,
-67,
75,
-28,
118,
79,
48,
-54,
-99,
-92,
72,
-59,
86,
-114,
-92,
57,
-24,
-103,
80,
-80,
122,
4,
15,
65,
-113,
-61,
46,
26,
-53,
104,
40,
-21,
-87,
-15,
-16,
-119,
5,
-1,
18,
35,
36,
-104,
33,
88,
9,
-100,
49,
16,
-8,
114,
-74,
-126,
-12,
109,
-101,
8,
54,
102,
50,
49,
-63,
-52,
-104,
6,
-70,
-113,
-91,
60,
121,
10,
41,
-98,
-99,
123,
18,
5,
-2,
-29,
21,
17,
44,
7,
-117,
-74,
-111,
-17,
-16,
-106,
75,
-53,
-121,
52,
113,
-114,
118,
93,
69,
126,
-109,
-113,
-112
]
|
The opinion of the court was delivered by
Smith, J.:
This action arises out of objections filed to the annual accounting of the guardian of an insane veteran of the World War. The objection was filed by a representative of the administrator of veterans’ affairs, pursuant to section 21 of the World WTar Veterans’ Act of 1924, as amended (38 U. S. C. A. sec. 450) and at the same time an application for removal of the guardian was filed. The objection was overruled and the motion was denied by the probate court. An appeal was taken to the district court. The same result was had there. The cause was thereupon appealed to this court. The facts are about as follows:
Charles A. Mooberry became insane sometime in 1923. That year J. L. Northrup, appellee here, was appointed his guardian. He has held that position ever since. Mooberry was a disabled veteran of the World War. After the appointment of Northrup there came into his hands as guardian from time to time certain pension money and rents and interest on pension money until on June 30, 1933, as shown by his annual account filed on September 22, 1933, there was in his hands the sum of $4,531.77.
During the time that J. L. Northrup was guardian for Mooberry he kept some funds on deposit in a checking account in the First National Bank at St. Francis, Kan. With the remainder of the funds he purchased certificates of deposit in the same bank, which became due six months from the date they were purchased. From the time the guardianship first started the guardian made regular reports in writing of his accounts to the probate court showing that some of the money of his ward was invested in certificates of deposit in the bank in question. These accounts were all approved without objection by the probate court. Sometime prior to June 30, 1932, Northrup bought two certificates of deposit in the First National Bank at St. Francis, each for $2,100. Each certificate bore interest at the rate of 4 percent per annum and was due six months from date. At this time he also had a deposit in the same bank in a checking account in the sum of $331.71.
In July, 1932, and subsequent to buying the two certificates spoken of, Northrup received a letter from the administrator of veterans’ affairs requesting the guardian to comply with the law in the investment of the funds o.f his ward. Shortly thereafter the guardian personally took the matter up with the probate court and his method of handling the funds was approved, but no written order was ever placed of record.
On October 29, 1932, the First National Bank failed. Since the bank closed it has paid dividends amounting to 60 percent. The total dividends received by the guardian amount to $2,837.35.
The guardian filed an annual accounting on September 22, 1933. This accounting showed a loss of $3,014.93 on account of the bank failure. This accounting was at first approved by the probate court, but afterwards the administrator of veterans’ affairs objected and the approval was set aside and the matter was set down for hearing. The objection of the administrator was that the guardian should have been surcharged and held liable for the loss sustained by reason of the bank failure.
A motion to discharge the guardian was also filed and both matters were heard at the same time. The probate court denied the motion to discharge and overruled the objections to the report. On appeal the same action was taken by the district court — hence this appeal.
There is no question here about the good faith of the guardian. The court found that prior to its closing the bank had a good reputation as a safe and sound institution; that the guardian inquired about it and had no warning or knowledge of any unsound condition, but at all times, with the knowledge and approval of the probate court, considered the bank a sound, safe place to keep the funds of his ward and that it was safer than other forms of investment.
It is the contention of the appellant that it was the duty of the guardian to invest the funds of his ward; that buying a certificate of deposit was not an investment, but simply a loan to the bank, and hence the guardian should be held liable.
The statute that deals with this subject is R. S. 1933 Supp. 73-512. That section is part of an act providing for guardianships for insane veterans. It is as follows:
“Every guardian, shall invest the funds of the estate in such manner or in such securities in which the guardian has no interest as allowed by law or approved by the court.”
We agree that the above statute requires the guardian to invest the funds of his ward. It does not, however, provide in what securities the money should be invested.
We will consider this matter in connection with the statutory provisions in effect when the above section was enacted with reference to guardians and wards.
R. S. 38-210 provides as follows:
“Guardians of the property of minors must prosecute and defend for then-wards. They must, also, in other respects, manage their interests, under the direction of the court; they may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the wards.”
R. S. 39-209 provides as follows:
“It shall be the duty of every such guardian to prosecute and defend all actions instituted in behalf of or against his ward, to collect all debts due or becoming due to his ward, and give acquittances or discharges therefor, and to adjust, settle and pay all demands due or becoming due from his ward, so far as his effects and estate will extend, as hereinafter provided.”
•R. S. 39-230 provides as follows:
“The probate court-shall have full power to control the guardian of any such person in the management of the person and estate and the settlement of his accounts, and may enforce and carry into execution its orders and judgments in the same manner as in cases of administration.”
R. S. 39-210 provides as follows:
“Every probate court by whom any such person is committed to guardianship may make an order for the support, care and safe-keeping of such person, for the disposition or sale of his personal property as may be found necessary, for the management of his estate, for the support and maintenance of his family and■ education of his children, out of the proceeds of such estate; to set apart and reserve for the payment of debts; and to let, sell or mortgage any part of such estate, when necessary for the purposes above specified.”
Passing by for the moment the question of whether the guardian should have secured the consent of the probate court before buying these certificates of deposit, we fail to find any provision in the statutes providing in what securities a guardian may invest. The authorities cited by appellant are not helpful in this respect. In every case where the guardian has been held liable there was a situation where the guardian had invested the money so as to vantage himself or he had failed to take ordinary care and precaution to safeguard the interests of his ward. There is no such an element as that here. The statute relied on describes the securities in which the guardian shall invest as those in which the guardian has no interest, as allowed by law or approved by the court. This act was a comprehensive one designed to cover the subject of guardianships for insane soldiers. We must assume that the legislature when it enacted the statute knew the provisions of statutes already in effect. Had it been the intention to provide that the money of a ward could only be invested in certain types of securities the legislature could easily have thus provided. But instead of that the act simply says “allowed by law.” Since this is the case, then the rule to apply is whether the investment is one in which an ordinarily prudent business man would place his funds.
This court will take judicial notice of a practice as universal among the people of this state as that followed by the 'guardian in this case. Indeed an examination of the records in the office of the bank commissioner discloses that the amount of private funds carried in the banks of this state by depositors in the form of time deposits will aggregate millions of dollars. There are reasons for this. That the bank is a convenient place is one reason. A more potent reason is that the bank is regarded as the safest institution within the knowledge of the people. It is generally the criterion by which people judge the safety and soundness of other investments. The people can see it. They have an opportunity to satisfy themselves as to the manner in which its business is conducted and of the soundness of its policies.
What securities should this court say were proper for the investment of the money of a ward? Should it be real-estate mortgages? The experience of the last few years would forbid us placing this class of investments ahead of certificates of deposit. Should we say municipal bonds? Unless the rule was restricted to.bonds issued by municipalities of Kansas the certificate would be safer. Should it be industrial stocks and bonds? Here again the experience of recent years answers the question. .Even after the bank in this case was forced to liquidate the creditors received a dividend of 60 percent of the original investment. It would be interesting to know how many of the investments of the types named paid any such a dividend under liquidation where such a course became necessary.
Counsel for appellant urges that the funds should have been invested in government bonds, but the trouble about that is that the time was when liberty bonds of the government could be bought at 70 cents on the dollar. How can it be said that a guardian who examined the whole field of investments and selected any one of these forms in which to invest the money of his ward should be liable for a loss sustained on account of some particular type of investment chosen? We hold that the purchasing of a time certificate in the bank in question was an investment of the funds belonging to the ward, as contemplated by the statute.
The appellant argues further that the statute not only provides that the investment be in securities permitted by law, but that the investment should be approved by the probate court, and that since no formal approval by the court was ever obtained here then the guardian is liable. The statutes in effect when the act providing for guardianship for insane veterans was enacted have already been set out in this opinion. One statute provides that the probate court shall have full power to control the guardian. Another provides that “guardians . . . must also in other respects manage their interests (the ward’s) under the direction of the court.” Can it be said there was not substantial compliance with those statutes in this case? From the time the first certificate was bought to the time when the management of the estate came under the secretary of administration of veterans’ affairs, the guardian made regular reports of his transactions to the probate court. Each of these reports stated that funds of the ward were invested in time deposits in this bank. Each of these reports was approved by the probate court. Aside from the conversations which occurred between the probate court and the guardian wherein this matter was discussed and oral approval given by the court, this court holds that the action of the court in approving the accounts of the guardian wherein these investments appeared was a substantial compliance with the statutes.
We have examined the authorities relied on by appellant to sustain its position here and find that they either deal with statutes where a mode of securing the approval of the court is laid down in detail or the guardian made some investment and concealed it from the knowledge of the court.
The judgment of the district court is affirmed. | [
-13,
108,
-76,
-98,
10,
96,
-86,
-102,
80,
-96,
-91,
115,
-23,
91,
65,
105,
-7,
9,
81,
97,
-25,
-77,
55,
-118,
82,
-13,
-7,
-51,
-79,
-35,
-28,
85,
13,
56,
74,
-107,
-26,
-61,
-59,
20,
14,
-123,
-88,
-63,
-7,
-128,
48,
43,
-50,
15,
81,
-34,
-9,
42,
28,
98,
105,
42,
-37,
-87,
-48,
-15,
-113,
-123,
-49,
23,
51,
70,
-102,
-59,
80,
46,
26,
49,
1,
-24,
49,
-74,
6,
116,
103,
121,
44,
118,
98,
-111,
-11,
-17,
-92,
-104,
31,
-78,
-83,
-91,
-109,
88,
65,
116,
-74,
-103,
124,
16,
6,
-12,
-25,
28,
21,
44,
13,
-117,
-42,
-79,
73,
-8,
-100,
3,
-21,
-93,
48,
113,
-115,
-30,
92,
87,
123,
-69,
-122,
-104
]
|
The opinion of the court was delivered by
Habvey, J.:
The question involved in this action was whether a deed conveyed title to the property described therein, or whether, because of the circumstances under which it was executed and the intention of the parties, it should be construed to be a mortgage to secure a debt. The trial court found the deed conveyed title and rendered judgment for plaintiff. Defendants have appealed.
Briefly the facts not in controversy may be stated as follows: Defendants owned three tracts of land in Geary county, (a) 467 acres mortgaged for $15,000 to a federal land bank; (6) 240 acres mortgaged for $6,000 to a federal land bank, the title to these tracts being in Mr. Henderson, and (c) 120 acres encumbered by a first mortgage of $6,000 and a second mortgage of $300 to a loan company, the title being in the name of Mrs. Henderson. Under the amortization plan of payment the principal of the mortgages to the land bank had been reduced about $1,000. However, at the time of the execution of the deed, soon to be mentioned, there was accrued interest on all these mortgages and unpaid taxes on the lands so that, we are told, all of the mortgages were subject to foreclosure. In addition to this, defendants owed the plaintiff bank $3,800 secured by a second mortgage on tract (a), which was due, and the bank held defendants’ unsecured notes for $750, $50, $100, $25, and $1,000 secured by a second chattel mortgage on livestock, all of which were due and on all of which there was accumulated interest of $518.03. In this situation the plaintiff bank desired an adjustment of the matter and proposed to the Hendersons if they would convey the land to it, subject to encumbrances other than its own, it would lease the property to them for eighteen months and in the lease give them an option to repurchase the property for the amount of their indebtedness to the bank, less a discount of $1,500. At a conference on this matter the papers were prepared. Defendants’ attorney was present. They did not execute the papers at that time, but said they would think it over. After considering the matter about a month the following papers were executed: First, a deed by defendants to the plaintiff bank subject to the encumbrances, except that owed the bank. This was in form a general warranty deed in which there was written in: “This deed is an absolute conveyance of title in effect as well as form and is not intended as a mortgage, trust conveyance or security of any kind,” and stated the consideration to be the full release of the several notes to the bank above mentioned. On the same date the bank and defendants executed an instrument called a “lease and option to purchase,” in which plaintiff leased to defendants the real property which had been conveyed to it by them for a term of eighteen months. The rent to be paid was stipulated. It was further agreed that the defendants should have an option to buy the lands, describing them, for the sum of $5,770.61, plus interest thereon at six percent per annum, plus any sums plaintiff should pay as interest, taxes, or insurance on the property, with six percent interest thereon. Plaintiff made a written statement to defendants of the items making up the amount of this option. It consisted of the several notes defendants owed the bank, aggregating, with interest, $6,243.03, plus the taxes of 1931, and’ an item of interest on one of the mortgages, less a discount by the bank of $1,500. The bank marked as paid and delivered to defendants their notes held by it, above mentioned, and released its second mortgage on tract (a). Defendants remained in possession of the property under the lease and paid the bank the rent stipulated in the lease, or a substantial part of it. On one occasion, at the solicitation of a representative of the federal land bank, some rent corn was sold and the proceeds paid to the land bank to apply upon interest due it. Defendants knew the provisions of the deed and lease, noticed. the special paragraph written in the deed, and knew the items making up the amount they were to pay if they exercised the option to purchase contained in the lease. They were prompted to execute the instruments for at least three reasons: (1) They were anxious to avoid any foreclosure action, one or more of which was imminent, (2) they were glad to get a discount of $1,500 on their notes to the bank, in the event they exercised their option to repurchase, and (3) they were confident they would be able to exercise the option within the term of the lease. They never did exercise the option to repurchase.
The controverted issue in the case was whether there was an understanding between the parties which differed from the terms of the instruments executed by them. On this point defendants alleged in substance that all their indebtedness was due, plaintiff was threatening foreclosure, defendants wanted an extension of time on their indebtedness to plaintiff, and that plaintiff agreed with them to extend their loan to it if defendants would execute to plaintiff a new note for $4,725 and execute the deed to secure it; that plaintiff represented it could not handle the indebtedness in any other way, and that such a deed and contract was the usual and customary method used by banks in the extension and renewal of mortgages; that defendants relied upon this agreement and upon these representations and executed the deed and the lease, with option to purchase, and also executed a new note to the bank for $4,725; that they would not have done so without the agreement and representations above made and their reliance thereon; and further alleged they were compelled, against their will, by the superior position of plaintiff and its threats of foreclosure, to execute the instrument; and they further alleged the deed was in effect a mortgage to secure the new note. These allegations were denied by plaintiff in its reply. On this controverted issue the evidence was in conflict. The court found defendants did not execute a new note to plaintiff for $4,725, or any other sum, and further found there was no indebtedness existing from defendants to plaintiff. There is an abundance of evidence in the record to sustain these findings, and they are binding on this court.
On the trial defendants presented the further theory that the real property was worth much more than all the indebtedness against it. Evidence on that question was received and the court made a finding that the real property was worth $40,000. It is argued here that since the property was worth substantially more than all the indebtedness against it a court of equity should construe the deed as a mortgage notwithstanding its terms. But the indebtedness on the land, plus the amount defendants were required to pay if they exercised their option to repurchase, plus accumulated interest on these items and accumulated taxes for the term of the lease, would amount to almost as much as the court found the value of the land to be. Certainly there is no disparity sufficient to justify a court of equity in construing the amount that would have to be paid by defendants to exercise their option as a debt and the deed as a mortgage to secure it.
Turning to the legal questions argued. With respect to these nothing new is presented. Normally, written instruments, intelligently executed by parties, are construed according to their terms. However, since the consideration for a deed may always be shown, if the evidence develops that there was a debt and that the deed was given to secure it, the deed will be construed to be a mortgage. (Dusenbery v. Bidwell, 86 Kan. 666, 671, 121 Pac. 1098.) While this showing may be by parol evidence, such evidence must be of a character to be clear and convincing. (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127.) It is fundamental that an instrument in the form of a deed cannot be construed to be a mortgage to secure a debt unless the debt is found to exist. (Holuba v. Floersch, ante, p. 601, 50 P. 2d 1004.) So the question really gets back to the evidence in support of the contention that there was a debt, and whether the parties so understood and agreed, and whether by the execution of the instrument in the form of a deed they intended it should be used only as security for the debt. The special clause written in this deed perhaps had no effect other than its bearing on the intention of the parties. Since the court found there was no debt existing from defendants to plaintiff, and there is evidence to sustain this finding, it correctly concluded the deed was a conveyance of title and not a mortgage to secure a debt.
The judgment of the court below is affirmed. | [
116,
108,
-111,
-82,
10,
96,
-88,
-102,
73,
-96,
-76,
83,
-29,
-62,
5,
41,
-26,
25,
101,
104,
-59,
-78,
39,
97,
-46,
-13,
67,
-51,
-71,
79,
102,
-41,
77,
48,
-54,
85,
-58,
-120,
-57,
92,
-50,
-121,
-69,
68,
-51,
64,
52,
123,
22,
78,
5,
-115,
-13,
45,
61,
66,
72,
42,
75,
61,
16,
-8,
-102,
-123,
95,
7,
-111,
101,
-116,
1,
-54,
42,
-112,
49,
1,
-8,
90,
-74,
-106,
116,
13,
-101,
12,
38,
102,
0,
100,
-17,
120,
-104,
14,
126,
-115,
-90,
-112,
88,
3,
40,
-97,
-99,
116,
0,
70,
116,
-17,
4,
29,
108,
7,
-49,
-108,
-125,
-115,
60,
-102,
-125,
-13,
3,
-79,
113,
-51,
-30,
93,
102,
56,
27,
14,
-6
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action to recover on a benefit certificate in defendant society. Judgment was for plaintiff. Defendant appeals.
Alejo Fernandez joined defendant society on December 16, 1920. A benefit certificate in the amount of $1,000 was issued. Anna Fernandez, the wife of Alejo, was named beneficiary in the certificate. On February 28, 1924, Alejo left his home in Kansas City, bound for Mexico. On June 8, 1924, he wrote a letter to his wife from Mexico. She has not heard from him since, although she has made diligent inquiry from time to time. The beneficiary kept the dues paid on that certificate up to and including the month of January, 1932.
On January 18, 1932, counsel for Mrs. Fernandez advised the society that Mr. Fernandez had not been heard from since June, 1924, and that all assessments had been paid. He requested the necessary blanks for proof of death. The society answered, stating that it was not liable for any amount in excess of $115.63, which was the accumulated funds of the society apportionable to the members of the insured’s class. The society also offered the alternative to Mrs. Fernandez that she could continue to pay all the dues on the certificate until the expiration of the life expectancy of the insured, which would be 36.04 years, at which time the full amount of the certificate would be paid to her.
This action was filed January 23, 1933. The facts are all admitted about as they have been given here.
The theory of defendant is that its liability is limited by certain clauses of the certificate and by-laws of the society. One of these was paragraph 5 of section 6 of the benefit certificate. It reads as follows:
“The absence or disappearance of the member from his last known place of residence and unheard of shall not be regarded as any evidence of the death of such member nor give or create any right to recover any benefits on this certificate or on account of such membership, in the absence of proof of his actual death, aside from and unassisted by any presumption arising by reason of such absence or disappearance, until the full term of his life expectancy at the time he disappears, according to the Carlyle table of life expectancy, has expired, and then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of this society be paid on behalf of such member within the time required, until the expiration of the term of such life expectancy; and the conditions of this certificate shall operate and be construed as a waiver of any statute of any state or country, and of any rule of the common law of any state or country to the contrary. In the event the payments are not made as above provided, said member shall stand suspended.”
At the time the certificate was issued the society was operating under the by-laws of 1919. Section 56 of paragraph 5 of those bylaws reads as follows:
“The absence or disappearance of a member, whether admitted heretofore or hereafter, from his last known place of residence and unheard of shall not be regarded as any evidence of the death of such member nor give or create any right to recover any benefits on any certificate or certificates issued to such member or on account of such membership in the absence of proof of his actual death, aside from and unassisted by any presumption arising by reason of such absence or disappearance, until the full term of his life expectancy at the time he disappears, according to the Carlyle table of life expectancy has expired, and then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of this society be paid on behalf of such member within the time required until the expiration of the term of such life expectancy, and the conditions of the certificate shall operate and be construed as a waiver of any statute of any state or country, and of any rule of the common law of any state or country to the contrary. In the event the payments are not made as above provided, said member shall stand suspended and cannot be reinstated except in the manner as provided in the constitution and laws as to reinstatement.”
This was amended by the by-laws of 1923, as follows:
“In all cases of absence or .disappearance where the member shall absent himself from his last known place of residence and be unheard of for seven or more years by his family, then and in that event, upon application therefor and proof of such facts by the beneficiary the society will pay to said beneficiary the full proportionate amount of the accumulated reserve in possession of the society held by it for the use and benefit of all persons of the member’s age and class and otherwise similarly situated, and such payment shall be made then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of the society be paid on behalf of such member within the time required by said laws, until the full expiration of said term of seven years.
“If the beneficiary so elects, in case a member has disappeared or absented himself, payment of assessments may be continued for the full period of his life expectancy at the date of disappearance as set out in the Sovereign Camp, Woodmen of the World mortality table, set forth in these laws; and upon the payment of all such assessments that may be made against the members of the society, at the end of said life expectancy the society will pay to the beneficiary the full amount of said certificate, less any indebtedness thereon or on account thereof, due to the society.”
This by-law was again amended by the by-laws of 1925. That by-law is section 57 of the laws of the society for 1925. It reads as follows:
“There shall be- no liability upon this association under any beneficiary certificate of membership in any case where a legal presumption of the death of such member arises from absence or disappearance until the full term of his life expectancy at the time he disappears, according to the association’s table of life expectancy, as set out in section 158 hereof, has expired; and then only in case all assessments, dues, special assessments and all other sums, now or hereafter required under the laws of this association be paid on behalf of such member within the time required until the expiration of the term of such life expectancy. In the event the payments are not made as above provided, said member shall stand suspended and cannot thereafter again become a member except in the manner as provided in the constitution, laws and by-laws of this association.
“However, should the beneficiary so elect, in all cases of absence or disappearance, where the member shall absent himself from his last known place of residence and be unheard of for seven or more years by his family, then and in that event, upon application therefor and proof of such facts by the beneficiary, the association will pay to said beneficiary the full proportionate amount of the accumulated reserve in possession of the association held by it for the use and benefit of all persons of the member’s age and class- and otherwise similarly situated, and such payment shall be made then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of the association be paid on behalf of such member within the time required by said laws, until the full expiration of said term of seven years.
“If the beneficiary so elects, in case a member has disappeared or absented himself, payment of assessments may be continued for the full period of his life expectancy at the date of disappearance as set out in the association’s mortality table, set forth in these laws, section 158; and upon the payment of all such assessments that may be made against the members of the association, at the end of said life expectancy the association will pay to the beneficiary the full amount of said certificate, less any indebtedness thereon or on account thereof, due to the association.”
The petition pleaded the certificate; the circumstances relating to the disappearance of insured; the efforts to locate him; the application for membership; the by-laws and constitution for 1919, 1923, 1925 and 1931; that the insured’s assessments and premiums were paid to and including 1932, and that the insured died about June 25, 1931.
The defendant answered, admitting the issuance of the certificate. The answer alleged that the application of insured for membership contained the following provision:
“. . . I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, and all the provisions of the constitution and laws of the society, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any bene ficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.
“I hereby waive the attaching of copies thereof to said certificate; and I further waive the provisions of all statutory laws and court decisions in relation thereto; and I further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician or nurse from testifying concerning any information obtained by him or her in a professional capacity; and I expressly authorize such physician or nurse to make such disclosure.”
The answer alleged that section 57 of the laws of the society relative to disappearance was an exception of risk provision and was valid and binding on the insured and his beneficiary and that because of the failure of the insured and beneficiary to comply with its provisions, even though the insured had disappeared and had been unheard of for seven years, the society was not liable to the beneficiary under this certificate.
The reply of the plaintiff was a general denial.
At the trial .of the case there was no question raised about the disappearance of insured about June 25, 1924, and the efforts to locate him. The facts as to the issuance of the certificate and the passing of the different by-laws of the society were admitted about as they have been set out here.
At the close of the evidence the defendant filed a motion for judgment in its favor on the pleadings and the evidence. This motion was denied and judgment was entered for the plaintiff for the amount of the policy.. This appeal is from that judgment.
The sole question is as to the validity of the section of the beneficiary certificate and the various by-laws pleaded. If they should be held valid, the plaintiff was only entitled to a judgment for $115.63, since this is the admitted amount of the accumulated reserve apportioned to the benefit certificate of the insured.
The paragraph that is relied on has been already set out in this opinion. At the time the certificate was issued the fifth paragraph of section 56 of the by-laws of 1919 was in effect. That paragraph has been quoted heretofore in this opinion.
These two paragraphs, if given the meaning contended for by defendant, would nullify the law in this state that an unexplained absence of a person for a period of seven years, during which time he has not been heard from, although inquiries concerning him have been diligently prosecuted, is sufficient to raise a presumption of death. We will deal with this question before considering the ques tion of the effect of by-laws of the society passed subsequent to the issuing of the certificate.
In the case of Hannon v. United Workmen, 99 Kan. 734, 163 Pac. 169, this court considered a similar question. There this court said:
“The rule as to the circumstances under which unexplained absence shall be deemed to raise a presumption of death is so well settled in this state as to have acquired substantially the force of a statute. It has been declared and applied by the courts and acquiesced in by the legislature.” (p. 738.)
There can be no question as to what the law is with reference to this presumption. Is a provision in a membership certificate and a by-law of a society which strikes down this rule valid? The case of Hannon v. United Workmen, supra, held such a provision bad. In that case the provision was contained in a by-law which was passed after the certificate was issued. The decision, however, held that the by-law was an unreasonable one. Once it is held that the provision is unreasonable it makes but little difference whether it was in the certificate when it was issued or not.
Although this court has not.passed on this precise question it has considered analogous ones. In the case of Fidelity and Deposit Co. v. Davis, 129 Kan. 790, 284 Pac. 430, a clause in a contract of indemnity was as follows:
“A. . . . and I further agree that all vouchers and other evidence of payment of any such loss, liability, costs, damages, charges or expenses of whatsoever nature incurred by the company or its attorneys shall be taken as conclusive evidence against me and my estate, of the fact and extent of my liability to the company.” (Syl. ¶[1.)
The surety company was compelled to pay a claim to the commissioner of finance of Missouri on account of the bond. When the surety company sued the person for whom it had written the bond, it relied on the above clause and moved for a judgment on the pleadings.
The clause was in the bond when it was signed so that no question was raised about a subsequent change. This court held that such a clause was contrary to public policy and void. But little can be added to the reasons given in the able opinion in. that case. The same argument was used by the court that will be noted running through the opinions cited hereinafter, that is, that such a clause if held valid would tend to oust the courts of jurisdiction and make them mere ministerial officers.
In Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 28 P. 2d 976, this court considered a case where the national executive council has suspended a subordinate council of the society without a hearing. When this action was attacked in court the society relied on one of its by-laws, which gave the national executive council authority to do that. The record does not show whether such a bylaw was in effect when the subordinate council was chartered. This court said that whether it was or not was not important. The members had all agreed to be bound by any by-laws and the constitution of the society as they then existed or might thereafter be amended. The court said:
“The question of the extent to which a member is bound by reason of a provision of this kind in his application has been before this court many times. When the by-law in question, as it originally existed or as it was later amended, was one which the society had a right to pass, and was reasonably necessary to carry out its purposes, it was upheld, . . . and where those conditions did not exist it was held invalid.” (p. 850.)
The holding is of intérest to us here because the court held that the by-law was unreasonable and therefore invalid. The court held thus regardless of whether the by-law was in effect when the subordinate council was chartered or not.
In Modern Woodmen of America v. Michelin, 101 Okla. 217, this question was decided. In that case the court held that a similar clause was unreasonable and against public policy. That by-law had been passed subsequent to the issuance of the certificate, but the insured had agreed to be bound by any subsequent by-laws. The court held expressly that the clause was bad whether it was in the certificate when it was issued or passed afterwards. The court said:
“If a rule of evidence can be abrogated like this, how long will it be before the procedure in all the courts of the land will be controlled by contracts regulating the method of procedure and the competency of testimony and of witnesses and the sufficiency of proof? Why, this by-law, if valid, effectively repeals any statute contrary to its provision. This company has made a little legislature of itself and would now perform the judicial functions of this court in controlling through this by-law how we shall determine the existence of a disputed fact.” (p. 224.)
The opinion quotes the case of Hannon v. United Workmen, supra.
In the case of Utter v. Insurance Co., 65 Mich. 545, the action was upon a policy that insured against accidental death. The policy contained the following clause:
“And this insurance shall not be held to extend to disappearances, nor to any case of death or personal injury, unless the claimant under this policy shall establish, by direct and positive proof, that the said death or personal injury was caused by external violence and accidental means, and was not the result of design, either on the part of the insured or of any other person.”
The insurance company argued that this clause controlled the case and that the question of whether or not the killing was accidental could not be shown by circumstantial evidence. The court said:
“Courts will not permit the course of justice, upon trials before them, to be stipulated or contracted in such manner as to defeat the ends to be sub-served by such trials. The parties to the contract cannot agree to oust the courts of jurisdiction over such contract. The operation of this clause, requiring direct and positive proof, in many cases would, in effect, preclude the court from jurisdiction and bar a recovery. If they can make this agreement, they can also stipulate that the evidence must come from certain persons, or make any agreement they see fit, controlling and directing the course of proceeding upon the trial. They may contract in relation to a condition precedent before bringing suit, or in relation to anything going to the remedy, but not to the right of recovery itself.” (p. 554.)
In the case of Supreme Ruling of Fraternal Mystic Circle v. Hoskins, 171 S. W. 812 (Tex. Civ. App.), Revised Statutes of Texas, 1911, article 5707, provided that any one absenting himself beyond sea or elsewhere for seven successive years should be presumed to be dead. This enacted by statute what has been the law of our state for many years. The court, in considering a clause such as the one we have here, that was in the certificate when issued, said:
“As it is correct, according to the rule, that no person has a vested right in rules of evidence, and it cannot be regarded as constituting any part of a private contract, then it would follow that parties may not go to the extent of making a valid term of private contract which has the effect of making ineffective an existing statute declaring the legal consequence that attaches to proof of certain facts.” (p. 814.)
In the case of Fleming v. Merchants’ Life Ins. Co., 193 Ia. 1164, a by-law of the company provided as follows:
“Disappearance or long-continued absence of the member unheard of shall not be regarded as evidence of death or of any right to recover.” (p. 1165.)
The insured disappeared. After more than seven years the beneficiary sued. The company used the above clause as a defense. The court said:
“It is not meant thereby that such a -right exercised by litigant parties ousts the court of its authority or power to hear the case and render judgment thereon, but it does mean that the jurisdiction is thereby so. limited and circumscribed as to take from the court its authority to conduct the trial and control the introduction of evidence in accordance with the settled rules of law. The right so claimed by the appellant, once established, reduces the court to a mere judicial lay figure, upon which interested and ingenious parties may hang their devices for escaping application of the legally established tests of truth.” (p. 1172.)
To the same effect is McCormick v. Woodmen of the World, 57 Cal. App. 568. (See, also, Fordyce v. Modern Woodmen of America, 129 Wash. 364; Bennett v. Modern Woodmen, 52 Cal. App. 581.)
We are aware that the case of Lunt v. Grand Lodge, A. O. U. W., 209 Ia. 1138, upholds the validity of a clause similar to the one contained in the by-laws of 1923 in this case. It should be noted, however, that the clause in that case was in effect when the certificate was issued, and did not purport to strike down the rule of evidence as does the clause which we are considering. The holding in the opinion that is of interest to us is that which states that a by-law which attempts to modify or control the procedure in courts of justice is valid.
We prefer the reasoning of the Iowa court in the case of Fleming v. Merchants’ Life Ins. Co., supra, to that of the Lunt case on this question.
Our attention has been called to the case of Wertheimer v. Travelers’ Protective Ass’n, 64 F. 2d 435. That case upheld a clause in an accident policy which provided that the association should not be liable when the member died as the result of a gunshot wound or the alleged accidental discharge of firearms when there was no eyewitness except the member himself. One of the authorities cited in the opinion is Schumacher v. National Travelers Benefit Association, 118 Kan. 523, 235 Pac. 844. That case upheld an eyewitness clause. The court distinguished the case of Hannon v. United Workmen, supra, by referring to the fact that the by-law attacked in the Han-non case had been enacted after the issuance of the certificate. We have demonstrated heretofore that such is not a valid distinction. We much prefer the distinction contained in the specially concurring opinion written by the distinguished justice who wrote the opinion in the Hannon case. The specially concurring opinion held that the clause in question related essentially to the character and circumstances of the accident insured against, rather' than to the court procedure by which a fact may be established.
The authorities are in conflict on the question, but we- choose to follow what appears to us to be the greater weight of authority and the better reasoned cases. Wq hold that the clause contained in the beneficiary certificate and the by-law in effect when the certifi cate, .was issued are invalid, and that the disappearance and unexplained absence of the insured was prima jade evidence of his death.
There remains the question of whether the provisions contained in the by-laws for 1923 and 1925 are valid. It will be noted that these provisions do not expressly waive the rule of evidence that an unexplained absence of seven years is evidence of death. The clause simply provides that in cases of unexplained absence for seven years the society will pay to the beneficiary the proportionate amount of the accumulated reserve held for the insured, providing all dues and assessments were kept paid during the seven years. The alternative is offered that the beneficiary could continue to pay the dues for the period of life expectancy of the insured and then collect the face of the policy. This period in the present case was about 36 years.
What has been said with reference to the provision in the certificate compels us to reach the. conclusion that these by-laws enacted after the issuance of the certificate are unreasonable. They seek by a change in the language to accomplish the same result that was attempted in the certificate. In seven years the beneficiary would pay in more than the amount which the by-laws provide would be paid to the beneficiary, and to compel the beneficiary to continue to pay for the term of life expectancy of the insured would render the certificate practically worthless and be manifestly unreasonable.
The judgment of the trial court is affirmed. | [
-16,
124,
-48,
-66,
26,
-16,
43,
-102,
82,
-56,
-89,
-45,
-19,
67,
20,
111,
-15,
45,
97,
104,
-73,
55,
23,
3,
-46,
-13,
-7,
-43,
57,
93,
-25,
-36,
76,
48,
-118,
-43,
98,
-40,
-55,
16,
-50,
5,
-87,
-27,
-71,
32,
48,
107,
-110,
94,
117,
-34,
99,
35,
28,
71,
40,
41,
89,
61,
-64,
-80,
-98,
-116,
-1,
19,
49,
69,
-100,
71,
-38,
10,
24,
-107,
-128,
-24,
114,
-74,
-122,
116,
115,
-71,
32,
102,
98,
-96,
117,
-17,
-72,
-104,
-114,
-78,
31,
4,
20,
76,
59,
44,
-68,
-103,
28,
20,
-90,
126,
-12,
21,
29,
-92,
25,
-101,
-106,
-111,
-35,
114,
-100,
-117,
-1,
-89,
-94,
113,
-56,
-94,
92,
69,
122,
-101,
-113,
-48
]
|
The opinion of the court was delivered by
Dawson, J.
The first of these cases was an action for damages for razing two small' houses belonging to the plaintiff. The second was an action to set aside the judgment in favor of plaintiff in the first case, on various grounds which will be stated below.
After trial and judgment and the overruling of appellant’s motion for a new trial the first of these actions was appealed.
In the second case judgment was entered against the appellant, and that case, too, is before us for review.
! The pertinent'facts in the two cases may be briefly stated: Plaintiff Brenneisen had two small houses in Kansas City, Kan. Defendant Phillips, a resident of Kansas City, Mo., under some pretense of claim thereto, employed one or more workmen to demolish these houses and disposed of their materials. Plaintiff caused his arrest and prosecution on some pertinent criminal charge, but the result seems to have been an acquittal.
Brenneisen also commenced a civil action, case 32,320, against Phillips for damages for the destruction and conversion of his property. Defendant answered under oath that he had neither meddled with the property nor had the damage been done by an agent of his.
On this joinder of issues the case was set down for trial on a day certain, but was continued at the behest of counsel for Phillips. On its second setting attorneys for Phillips withdrew from the case. Plaintiff Brenneisen proceeded with his action, adduced his evidence, and judgment for $2,000 as the value of the houses was entered against Phillips. The same day the attorney for Brenneisen notified Phillips of these facts by telephone. The ex-attorneys for Phillips took the more formal method of notifying him by United States mail that they were withdrawing from the case,' which communication would not reach Phillips until the day following. However, on the telephone information received from opposing counsel, Phillips was on hand the next morning with other counsel, who moved to set aside the judgment and grant a new trial on the usual grounds. Counsel for Brenneisen agreed that this motion might be allowed if an immediate trial could be had, but refused to consent to putting his client to the annoyance and expense of another trial if it had to be postponed. The trial judge advised the litigants that he could not grant an immediate hearing and the motion was therefore denied.
Touching the errors urged against this judgment, complaint is first made because the case was tried in the absence of defendant’s attorneys. That hardly states the real situation. The circumstances warranted an inference that the verified answer filed in defendant’s behalf and the maneuvers of his counsel were prompted to hinder -and delay the plaintiff in obtaining judicial redress for the tort which defendant had committed against him.
No error was committed by the trial court in its refusal to vacate its judgment the day after the trial. That was a matter addressed tó its discretion, and certainly the record does not show that such discretion was abused.
Exception is also based on the use of certain adverbs in the journal entry of judgment, wherein it recites that the destruction of plaintiff’s houses was “willfully and maliciously” done by defendant. If these adverbs'were stricken from the journal entry it would not affect the potency of the'judgment against'defendant in the slightest degree. Moreover, no objection was made to these adverbs in the motion for a new trial.
Another error is predicated on the question of the competency of the plaintiff as a witness to testify as to the value of the houses. It does not appear that this point was fairly raised in the motion for a new trial, but if that point be overlooked the testimony was competent. The owner of property is presumed to know its value; his opinion of its value is competent, even if it be not very persuasive. (Lawson v. Southern Fire Ins. Co., 137 Kan. 591, 599, 600, 21 P. 2d 387; F. W. Bromberg & Co. v. Norton, 208 Ala. 117; Hood v. Bekins Van & Storage Co., 178 Cal. 150; Jackson v. Innes, 231 Mass. 558, 561; Meyer v. Adams Express Co., 240 Mass. 94; Langland v. Kraemer, 230 Mich. 449; Klind v. Valley County Bank, 69 Mont. 386, 394; Miller v. Drainage Dist., 112 Neb. 206; Melver v. Katsiolis, 93 Okla. 49; 22 C. J. 581, 587.)
No shadow of error appears in appeal No. 32,320.
Turning next to the case of Phillips v. Brenneisen, No. 32,314, plaintiff attempted to state an independent cause of action against Brenneisen under R. S. 60-3007, which authorizes the vacation of a judgment after the term, on certain specified grounds. In this case the grounds relied on were the circumstances under which the action was tried and judgment entered in Brenneisen v. Phillips, supra, notwithstanding the withdrawal of Phillips’ counsel on the threshr old of the second setting of the trial. The fact that one of Phillips’ lawyers had been ill and might be unable to participate in the trial was known long before the setting of the case for trial, and there was no suggestion that his other attorney — the only .one who had paid any attention to it — was incompetent to try the case. This was not a sufficient ground to compel the court to entertain an action to vacate a judgment under R. S. 60-3007. (Farmers State Bank v. Crawford, 140 Kan. 295, 296, 37 P. 2d 14.)
The petition to vacate the judgment likewise alleged that counsel for plaintiff and for defendant had agreed that the case of Brenneisen v. Phillips, supra, should not be tried on the date of its setting, and likewise had agreed that the judgment entered on that date should be vacated. The evidence to which' the trial court gave credence did not support either of those allegations, and the trial court so found. Moreover, those facts, if true, should have been included in the motion for a new trial in the first case, not in this later and independent case; and, furthermore, the postponement of trials and the vacation of judgments are discretionary powers vested in judges and courts, not in the merely disputable agreements of counsel for the litigants.
Another ground urged to vacate the judgment was that the plaintiff’s evidence touching the value of the houses was false and untrue. Without giving countenance to this gratuitous allegation, if it were true it would be a species of intrinsic fraud which would have to be corrected in the action in which it occurred, not in an independent lawsuit instituted afterwards. In Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 215, 243 Pac. 306, it was said:
“Fraud involved in judicial proceedings is or may be of two kinds — intrinsic and extrinsic. And if the fraud which has crept into judicial proceedings is intrinsic, it must be corrected, if at all, by a motion for a new trial filed within three days after the judgment tainted with such fraud is rendered (Civ. Code, § 306) or by a petition for a new trial, if applicable, filed not later than the second term after the discovery of the fraud (Civ. Code, §308). Whether such new trial is invoked by motion or by petition, such proceedings are supplemental to those of the original action and must be undertaken in that identical case. If the fraud or other miscarriage of justice complained of is intrinsic, the court’s jurisdiction to correct it is not otherwise invocable. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079; McCormick v. McCormick, 82 Kan. 31, 36, 38, 107 Pac. 546; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Blair v. Blair, 96 Kan. 757, 759, 760, 153 Pac. 544; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93 and Rose’s Notes thereto at p. 512 et seq.; 1 Black on Judgments, 2d ed., § 292.)” (p. 215.)
In Fry v. Heargrave, 129 Kan. 547, 549, 283 Pac. 626, it was said:
“It is axiomatic that the judgment of a court of competent jurisdiction cannot be attacked collaterally except for extrinsic fraud. If the fraud is intrinsic it must be corrected in the action which culminated in the judgment, by supplemental proceedings, or by appellate review. Otherwise there never would be an end to litigation, nor any public or private confidence in the binding force and finality of a court’s judgment.
“The distinction between intrinsic and extrinsic fraud has often been expounded by this and other courts. [Citations.]” (p. 549.)
The other matters urged in the brief of appellant have been carefully considered, but they do not justify further discussion.
Both judgments are affirmed. | [
-15,
-24,
-71,
46,
10,
97,
58,
-24,
65,
-127,
-90,
115,
109,
-97,
1,
127,
-6,
25,
84,
107,
85,
-78,
7,
-94,
-14,
-77,
-13,
-44,
-71,
77,
-12,
87,
76,
96,
-118,
-43,
6,
0,
69,
28,
14,
20,
8,
-29,
-45,
66,
52,
104,
80,
11,
21,
-98,
-13,
46,
25,
-49,
72,
60,
-21,
61,
16,
-72,
-102,
7,
125,
4,
-95,
38,
-98,
6,
-40,
42,
-112,
49,
-127,
-88,
115,
-74,
-122,
-12,
75,
-85,
44,
38,
102,
3,
29,
-17,
-24,
-120,
47,
54,
-97,
-89,
17,
88,
3,
77,
-66,
-99,
109,
20,
42,
-34,
-20,
21,
25,
108,
7,
-118,
-42,
-79,
15,
124,
-101,
11,
-21,
-127,
53,
112,
-114,
-94,
92,
71,
59,
-69,
30,
-107
]
|
The opinion of the court was delivered by
Wedell, J.:
This was a criminal prosecution under the provisions of R. S. 19-242.
The state has appealed, and defendants cross-appeal. We shall refer to the parties as plaintiff and defendants. The case has not been tried on its merits. Plaintiff appeals from the order of the trial court sustaining motions to quash the indictment. Defendants, the county commissioners, have cross-appealed from the order sustaining a demurrer to their respective pleas in abatement. An appeal does not lie from the latter at this time. In the case of State v. Levine, 125 Kan. 360, 264 Pac. 38, it w;as held:
“In a criminal action, an appeal does not lie from an order . sus taining a demurrer to a plea in abatement filed against it until after trial on the indictment and a final judgment has been rendered.”
Plaintiff had filed a motion to dismiss the cross-appeal. On oral argument plaintiff, however, consented to and in fact requested this court to determine the various issues raised by the cross-appeal under various pleas in abatement. We realize such rulings might materially facilitate the trial on its merits. If the issues so raised were decided now a precedent would be established whereby parties could agree to an appeal on similar matters and obtain rulings on almost every conceivable phase of a lawsuit in advance of the trial on its merits. This court in the Levine case considered advantages which might accrue by such practice under certain circumstances, but held unless the practice is authorized by statute the court should not recognize it. After careful consideration we have reached the same conclusion in the instant case. The cross-appeal must therefore be dismissed.
The grand jury of Sedgwick county returned an indictment against each of the three defendants in three separate counts for alleged violations of R. S. 19-242. That statute embraces three separate and distinct misdemeanors. The .first deals with allowance of accounts, claims or demands, the second with the issuance of warrants therefor, and the third prohibits the issuance of warrants unless the account, claim or demand is prepared in certain form, presented and allowed as that portion of the statute directs. The prosecution here involves" only the first part of the statute dealing with allowance of accounts, claims or demands. The first subdivision of R. S. 19-242 reads:
“It shall be unlawful for any board of county commissioners to allow any greater sum on any account, claim or demand against the county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered, salaries or fees of officers, or materials furnished.”
In the first count defendant commissioners were charged in substance with unlawfully, etc., allowing a greater sum on an account, claim or demand against Sedgwick county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered or material furnished to said county, in favor of one W. G. Haun and Company, or W. G. Haun, individual, doing business as W. G. Haun and Company. In particular, they were indicted in this count for allowing $6,337.50 for services of attorneys, and printing blank bonds on $422,500 refunding issue at $15 per thousand.
The second count dealt with the allowance of an account, claim or demand, in favor of said W. G. Haun, etc., in the sum of $1,500, .for legal services and printing of $100,000 of emergency poor bonds.
The third count dealt with the allowance of an account, claim or demand, in favor of W. G. Haun, etc., in the sum of $1,266.60, for refunding certain other bonds.
The charging part of each count in the indictment is substantially the same. To each count is attached the particular account, claim or demand on which the prosecution is based, also the record of allowance by the commissioners and the voucher in payment thereof, indicating the particular fund to which it was charged.
Defendants challenge the form and the language in the indictment from its very beginning. The first count of the indictment, without exhibits attached thereto, reads:
“State of Kansas, Sedgwick County, ss:
“The grand jurors of the state of Kansas in Sedgwick county, duly impaneled, charged and sworn by the court aforesaid, at the January, 1935, term, on their oaths do find, charge and present that, on or about the 5th day of February, 1934, at Wichita, in the county of Sedgwick, state of Kansas, George E. Rogers, Herman A. Hill and John F. Millhaubt, duly elected, qualified and acting county commissioners in and for Sedgwick county, Kansas, then and there being, did unlawfully, intentionally, willfully and knowingly allow a greater sum on an account, claim or demand against said county than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered or materials furnished to said county in favor of one W. G. Haun and Company, or W. G. Haun, an individual doing business under the firm name and title of W. G. Haun and Company, which said accounts, claims or demands against said county of Sedgwick, in the state of Kansas, was in the words and figures as follows, to wit:” (Here follows copy of account, claim or demand, and copy of voucher.)
■ The separate motions to quash the indictment are substantially the same. The grounds' of the motions were constitutional, and that the indictment was indefinite, uncertain and bad for duplicity. We shall consider the last complaints first. It must be admitted the indictment could and should have been framed with greater definiteness and clarity. The statutes require the indictment to be in plain and concise language (R. S. 62-1004), and that it be direct and certain regarding the party and the offense charged. (R. S. 62-1005.)
Is this indictment so indefinite and uncertain as to actually leave the defendants in doubt as to the offense with which they are being charged? The offense is charged substantially in the words of the statute. This has been held sufficient. (State v. Buis, 83 Kan. 273, 111 Pac. 189; State v. Lumber Co., 83 Kan. 399, 111 Pac. 484; State v. Custer, 85 Kan. 445, 116 Pac. 507.)
It will be seen two types of compensation are involved under the terms of this statute. The first is legal compensation or price. The second is ordinary compensation or price. Plaintiff has admitted in both the trial court and here defendants -cannot be prosecuted under this indictment for allowing a greater sum than the amount actually due according to legal compensation. Plaintiff bases the prosecution on the proposition that an account, claim or demand was allowed for a greater sum than actually due thereon according to the ordinary compensation.
Is the indictment bad for duplicity? Duplicity consists in charging more than one offense in the same count of the information or indictment. Complaint is made concerning the use of the disjunctive “or” in the phrase “account, claim or demand,” and concerning the use of the same disjunctive “or” between the words “compensation” and “price.” The words, “account,” “claim,” and “demand” are not charging words in the statute or indictment. They are nouns. True, they are not in legal contemplation synonymous. In the instant case can there be any question in the minds of defendants concerning the general transaction with which they are being charged? The transaction on which the allowance was made is attached to the indictment. It fully apprised the defendants, irrespective of whether in legal contemplation it constitutes an account, claim or demand. Now, as to the disjunctive “or” between the words, “compensation” and “price,” these words are not charging terms. They are also nouns. While the word “compensation” and the word “price” are not technically synonymous, they are practically so used in the statute. To be sure, it would have been better pleading to have used the conjunctive “and.” It is equally certain defendants can in no wise be misled by the use of the word “or” in this instance.
In the light of these circumstances the principle announced in the case of State v. Douglas, 124 Kan. 482, 260 Pac. 655, is applicable here, syllabus one of which reads:
“The overruling of a motion to quash a count in an information because the disjunctive ‘or’ is used in the charging clause instead of the conjunctive ‘and,’ when it follows the language of the statute and refers to things as objects rather than the doing of things, and where it is used between synonymous words or terms rather than distinct alternatives, is not reversible error.”
In the same ease this court quoted from 30 Cyc. 1565, as follows:
“The offense of practicing medicine without a license being purely a statutory offense, if the statute so far individuates the crime that the offender has proper notice of the nature of the charge against him, it is sufficient to charge it in the language of the statute or in terms substantially equivalent thereto.” fp. 484.)
Similar objections were raised in the form of a plea of abatement in the case of State v. Schweiter, 27 Kan. 499, and this court said:
“In the case of misdemeanor, the joinder of several offenses will not in general vitiate the information in any stage of the prosecution. For offenses inferior to felony, the practice of quashing the information on account of such joinder, or calling on the prosecutor to elect on which charge he will proceed, does not prevail.” (Syl. IT 4.)
It is further contended the indictment in this case is bad for duplicity because attached to it is the warrant issued in payment of the account, claim or demand. The gist of this action is the unlawful allowance of the account, which is set out in detail. There is no charge for unlawfully issuing the warrant. Under these circumstances the only function of the warrant is that it shows the completion of the offense of allowing a greater sum. The most that can be said against the attachment of the warrant to the indictment is that it constitutes surplusage. It does not violate the rule against duplicity.
Our attention is further directed to the fact that each of the offenses is charged as of the date of the warrant in payment of the account, rather than as of the date of the allowance of the account. This constitutes a discrepancy of a few days. The indictment reads, “on or about.” The matter complained of did not render the indictment fatally defective. Furthermore, the defendants cannot be prosecuted under this indictment for the offense of issuing the warrants. This, as previously indicated, constitutes a separate offense under R. S. 19-242, and is not pleaded.
It will be observed we have denominated the transaction as an account. The verified statement filed for allowance is designated as an account under each of the respective counts of the indictment.
Defendants further contend each count of the indictment shows on its face that the respective allowances were made pursuant to a written contract. They insist the written contract not being made a part of the indictment renders the indictment subject to a motion to quash. We do find in the statement attached to the third count the phrase, “to attached bill as per contract.” Let us assume, without deciding, there was a written contract covering the allowances made under each of the counts, that fact would not necessarily make good the motion to quash. In other words, the fact in and of itself, if it be a fact, that defendants had previously entered into a valid, binding and enforceable contract against the county would not necessarily cure an unlawful act of allowing the bill when presented if the allowance was in fact unlawful, under the provisions of R. S. 19-242. It follows the motion to quash does .not quite reach the point.
Other complaints are made concerning the indictment. Some of them might well have been observed by the pleader. They are not considered sufficiently important to render the indictment fatally defective.
. The motions to quash also challenged the indictment on constitutional grounds. The gist of the offense charged is the allowance of a greater sum on an account than the amount actually due thereon, dollar for dollar, according to the ordinary compensation or price. The complaint concerns the word “ordinary.”
The specific complaints made by defendants against this statute are, it docs not forbid a specific or definite act, it provides no ascertainable standard of guilt, and the jury must guess at its meaning and differ as to its. application.
Defendants contend the statute under which the indictment is drawn is contrary to and in conflict with the fifth amendment to the constitution of the United States, in that it deprives defendants of liberty without due process of law; that it violates the fourteenth amendment of the federal constitution, and especially that part thereof which provides that no state shall deprive any person of life, liberty or property without due process of law, or deny any person within the jurisdiction the equal protection of the law, and that it violates that part of section ten of the bill of rights of the constitution of the state of Kansas which reads:
“In all prosecutions, the accused shall be allowed ... to demand the nature and cause of the accusation against him.” '
The trial court held the statute unconstitutional on the ground it was antagonistic to the above-quoted part of section ten of the bill of rights of the constitution of this state; and was therefore void. In support of this decision the trial court cited State v. Blaser, 138 Kan. 447, 26 P. 2d 593; Connally v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126; State v. Satterlee, 110 Kan. 84, 202 Pac. 636; United States v. Cohen Grocery Co., 255 U. S. 81, 65 L. Ed. 516, 41 S. Ct. 298; United States v. Willard, 8 F. Supp. 356. In addition to these cases defendants cite numerous decisions. Among them are Schechter Poultry Corp. v. United States, 295 U. S. 495, 79 L. Ed. 888, 55 S. Ct. 837; Champlin Rfg. Co. v. Commission, 286 U. S. 210, 76 L. Ed. 1062, 52 S. Ct. 559; Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866; Tozer v. United States, 52 Fed. 917; International Harvester Co. v. Kentucky, 234 U. S. 216, 58 L. Ed. 1284, 34 S. Ct. 853; Christy-Dolph v. Gragg, 59 F. 2d 766.
It may be stated here that in none of the cases above mentioned was the decision based upon the use of the word “ordinary” except in one case. The case in which the word “ordinary” was employed is the recent case of United States v. Willard, 8 F. Supp. 456. The above cases relied on by the trial court and those cited by defend-. ants are all entitled to and have received our most careful study and consideration. The case of United States v. Cohen Grocery Co. was cited by this court in State v. Satterlee, and the case of Connally v. General Const. Co. was cited by this court in the case of State v. Blaser. It is also true these last two decisions of the supreme court of the United States were considered not only persuasive but almost conclusive in their application to the particular statutes there under consideration. Those cases, however, did not involve the use of the word “ordinary,” which this court believes to have a generally well-understood meaning. In the instant case we are confronted squarely with the use of the word “ordinary” as employed in a statute enacted in 1868. True, its constitutionality has not been previously questioned. Various decisions, in both criminal and civil cases, have, however, been rendered pursuant to the provisions of this statute. We understand that age does not invest it with constitutional validity. Neither does it rob it of such validity. That it is a most wholesome statute in connection with the administration of county government cannot be questioned. Its design and purpose was the prevention of extravagance, waste and fraud in the administration of public affairs. It should be upheld unless its infringement of the constitution is clearly established. In the case of United States v. Standard Brewery, 251 U. S. 210, 64 L. Ed. 229, 40 S. Ct. 139, it was said that a congressional enactment “must be construed, if fairly possible, so as to avoid not only the conclusion that it was unconstitutional, but also grave doubts upon that score.” To the same effect are Atchison v. Bartholow, 4 Kan. 124; State v. Scott, 109 Kan. 166, 197 Pac. 1089.
Defendants urge the Blaser case, decided by this court, is conclusive in the instant case. Defendants were there charged with violation of R. S. 1931 Supp. 44-201, in that while constructing a school building in the city of Wichita, under a contract with the board of education of that city, defendants did “employ laborers and other persons at a less wage than the current rate of per diem wages in the locality said work and labor was performed.” The statute above referred to, among other things, provides not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed on contracts with the state, or its municipalities, for construction work. The statute contains a definition for the word “locality,” and for the phrase “the current rate of per diem wages.”
In discussing the above statute, this court cited an identical statute of Oklahoma, and quoted from Connally v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126:
“A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law.” CState v. Blaser, 138 Kan. 447, 448.)
This court still adheres to that pronouncement. Can men of common intelligence, which county commissioners are presumed to have, know or ascertain what constitutes ordinary compensation or price for services rendered or materials furnished to the county?
Perhaps no single word has a more definite meaning in legal parlance or in the language of the street, than the word “ordinary.” In the Connally case, cited by this court in the Blaser case, the supreme court of the United States itself employed the word “ordinary,” when it held the wage act unconstitutional for lack of definiteness. The phrase of the wage act in dispute was “not less than the current rate of per diem wages in the locality.” In the course of its opinion that court said:
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of jair play and the settled rules of law.” (Italics ours.) (p. 391.)
Later in the opinion the court further said:
“The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.” (p. 393.)
Now what did that court mean when it used the word “ordinary” in defining the degree of definiteness and clarity required by a criminal statute? Can it be assumed that court in criticizing the indefiniteness of the statute involved, used a term as indefinite as the statute it criticized? We think not. The court there defined the degree of definiteness required in a criminal statute. In so doing it employed the very term which in the instant case is challenged for indefiniteness. Are the words “ordinary person” any less definite than the words “ordinary compensation or price.” We think not.
We also call attention to the fact that the author of. our Blaser case painstakingly narrated the history of the wage-law act in this state, and showed conclusively that it was never intended as a criminal act from its very inception. This court did hold the indictment too indefinite in the Blaser case. In that connection this court, in part, said:
“Naturally, in the construction of the building defendants employed laborers, workmen and mechanics of varying degrees of skill. Which of these are defendants charged with paying less than the current rate of per diem wages?” (p. 455.)
That uncertainty and indefiniteness does not inhere in thfe indictment under consideration. There is, according to the indictment in the instant case, only one party to whom allowances were made by the defendant commissioners, and that party is Haun.
In the same case this court further said:
“What does the prosecution contend was the current rate of per diem wages for such persons, and what was paid by defendant? These are not stated in the information. How were defendants to know what specific charge was made against them? It is fundamental that an information should charge an offense with such certainty that the defendant may know 'the offense with which he is charged with such certainty as to prepare to meet it. The information in this case does not do that. It is true that when a statute creating an offense states the facts constituting it, the information may be in the language of the statute. But where the statute is in general terms only, the information should be more specific.” (p. 456.)
We still adhere, also, to that statement. The portion of section ten of the bill of rights in the Kansas constitution, reads:
“In all prosecutions, the accused shall be allowed, ... to demand the nature and cause of the accusation against him.”
We are here confronted squarely with the question whether the phrase “ordinary compensation or price” sufficiently meets the above requirement. We believe it does. Since the statute is in general terms only, it would have been better pleading to have also alleged what the state regarded as ordinary compensation or price. On the other hand, since we believe the word “ordinary” meets the constitutional requirements, the motion to quash should not be sustained by reason of the absence of a fuller statement.
In State v. Satterlee, 110 Kan. 84, 202 Pac. 636, this court had under consideration that part of section 3814 of the General Statutes of 1915 which prohibited a person from carelessly or negligently handling or exposing nitroglycerin. This court held the statute unconstitutional for the reason that it did not name the acts which arc prohibited by law. This court cited the case of United States v. Cohen Grocery Co., supra, and in discussing the question said:
“This decision from the highest and ablest court in the land on a statute in principle so closely parallel to the one now under consideration that it is difficult to draw distinctions between them is very persuasive and is almost conclusive.” (p. 87.)
The same difficulty of distinction does not exist in the case at bar. In the Satterlee case the charging phrase, following the statutory language, was: “Carelessly and negligently handle and expose.” The object was nitroglycerin. Clearly the charging phrase was not sufficiently definite as it did not name the acts prohibited. The words “carelessly” and “negligently” modifying the charging words “handle” and “expose,” left much room for speculation as to what act or acts were really prohibited. In this case the precise charging word is “allow.” No difficulty is presented concerning the meaning of that term as used in the statute. In the instant case the object of allow is “compensation” or “price,” modified by the generally and commonly understood word “ordinary.”
The only case cited — and our search has revealed no other — in which the word “ordinary” was employed and challenged, is the case of United States v. Willard, 8 F. Supp. 356, decided in September, 1934. The court there had under consideration the following statute:
“No person, partnership, association, or corporation, shall make any charge in connection with a loan by the corporation, or an exchange of bonds or cash advance under this chapter except ordinary charges authorized and required by the corporation for services actually rendered for examination and perfecting of title, appraisal, and like necessary services.” (Italics ours.)
It will be observed the phrase “ordinary charges” is modified by the phrase or expression “authorized and required by the corporation.” The court quashed the indictment against Willard. The corporation at that time had made no regulations relative to charges. It is therefore clear that no prosecution could have been instituted against Willard at that time under the provisions of that act. The act itself required that the corporation should determine what constituted ordinary charges. Since the act itself required the corporation to determine what constituted ordinary charges, and since the corporation had not yet determined that fact, the statute itself was to that extent incomplete and indefinite. The federal district court in that connection said:
“Regardless of the proper construction of the statute after the promulgation of regulations, it seems clear that until ‘ordinary charges’ are regulated and defined by the corporation the statute is lacking in that certainty which is required to uphold criminal statutes’ and indictments thereunder against attack for vagueness and indefiniteness.” (p. 357.)
In the light of the entire record in that case we do not construe the decision as conclusive in the instant case.
Defendants earnestly contend the decision of the supreme court of the United States in the NRA case, Schechter Poultry Corp. v. United States, 295 U. S. 495, 79 L. Ed. 888, 55 S. Ct. 837," is applicable and decisive in this case. We are inclined to the view the case is neither, applicable nor decisive here. Section three of the NRA act provided that upon application to the President by a trade or industrial association, the President might approve a code of fair competition, etc. Violation of the code was made a crime. It was contended by the defendants that the act of congress providing for the code was unconstitutional in that it furnished no standards for any trade or industry. In upholding this contention that court, in part, said:
“To summarize and conclude upon this point: Section 3 of the recovery act (15 USCA sec. 703) is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power." (p. 541.) (Italics ours.)
From the above statement it would clearly appear the decision was not based upon an indefinite regulation or code, which had been enacted or promulgated, for that had not yet been done. The gist of the decision is that the act of congress was virtually an unfettered delegation of legislative power by congress, the constituted legislative body, to the chief executive in charge of a nonlegislative department of the federal government. It was the delegation of legislative power completely devoid of all standards for such legislation that was declared unconstitutional. In the instant case the statute was enacted by properly constituted authority. It set a standard for what the commissioners could properly allow. The standard was ordinary compensation or price. The question before us now is not whether there was any standard, but whether the standard fixed by properly constituted authority is sufficiently definite.
Plaintiff’s contention concerning the constitutionality of the act in question may be summarized as follows:
“1. That the statute, R. S. 19-242, is as specific as is compatible with the subject matter legislated upon.
“2. That the word ‘ordinary’ is not indefinite and uncertain and the courts of the land have had no difficulty in defining the word ‘ordinary,’ nor in using it as an adjective modifying nouns.
“3. That because the fact of violation of the statute may depend upon the judgment of a court or jury, and not upon specific criteria contained in the act itself, this will not invalidate the act.
“4. That one jury may convict and another acquit upon the same state of facts does not invalidate the act.”
R. S. 1933 Supp. 8-122 is our present traffic statute. Its violation constitutes a misdemeanor. It is probably as indefinite as any law in the statute books. The pertinent portion thereof reads:
“That no person shall operate a motor vehicle on any highway outside of a village or city at a rate of speed greater than is reasonable and proper, having regard for the traffic and use of the road and the conditions of the road, nor at a rate of speed such as to endanger the life or limb of any person; and within any city or village no motor vehicle shall be operated at a rate of speed greater than is reasonable and proper, and having regard for the traffic and use of the road and the condition of the road, nor at a rate of speed such • as to endanger the life or limb of any person. . . . Every such motor vehicle while in use on public highways shall be provided with good and sufficient brakes, and also with a suitable bell, hom or other signal. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, ...”
No specific rate of speed is mentioned which makes prima facie evidence of negligence. In the case of State v. Blake, 133 Kan. 152, 298 Pac. 748, the specific charge under which defendant was found guilty was that of operating an automobile on a public highway at a greater rate of speed than was reasonable, and at such speed as to endanger the life or limb of a person using the highway. True, the constitutional question was not raised. It has been raised and upheld, however, in other states which have traffic statutes similar to ours. The same identical objections were made there that are being made here to the word “ordinary” contained in R. S. 19-242.
When a statute and indictment are sufficiently definite to advise defendant of the nature and cause of accusation against him we think the fact that one jury might convict and another acquit is not ground for holding the statute unconstitutional.
In the case of Mulkern v. State, 176 Wis. 490, 187 N. W. 190, it was said:
“It is claimed that the statute under which defendant was convicted was too vague and uncertain to sustain a conviction, in that it is impossible for the driver of a car to know whether or not he is violating it; that the fact of violation depends upon the judgment of a court or jury, and not upon specific criteria contained in the act itself; that one jury may convict and another acquit upon the same state of facts. This is true, and defendant relied upon cases from Georgia, in which a similar statute has been held void for uncertainty. (See Hayes v. State, 11 Ga. App. 371, 75 S. E. 523; Holland v. State, 11 Ga. App. 769, 76 S. E. 104; and Elsbery v. State, 12 Ga. App. 86, 76 S. E. 779.) If the fact that one-jury might decide a case one way and another jury a different way upon the same state of facts rendered laws void for uncertainty, then we would have to discard not only many rules of civil law but also many criminal laws. In nearly every criminal act an intent to commit it must be found in order to warrant a conviction. Not only may such intent be found upon circumstantial evidence, but the direct evidence may well give rise to a situation where one jury will find the intent and another fail to find it. So, too, in many cases where guilty knowledge is required to be found, as in receiving stolen goods or in running a house of ill fame, juries may come to different conclusions upon the same state of facts. Even in murder of the second degree the definition of the crime is no more specific and certain than is that of the offense in the statute under consideration. It provides that the killing of a human being without intent to kill, ‘when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life,’ shall be murder in the second degree. What is an act imminently dangerous to others, and what evinces a depraved mind, regardless of human life, is as much a matter of judgment as is such reckless driving as will, under the circumstances, endanger the property, life or limb of any person. Thus, by sec. 4363, Stat. 1921, the involuntary killing of a human being by the culpable negligence of another is made manslaughter in the fourth degree. Juries may well differ as to what constitutes culpable negligence, yet a conviction thereunder is valid. Likewise, in the law of negligence, what constitutes a lack of ordinary care is a matter of judgment, the result of which is often followed by consequences far graver than is a violation of the statutes in question. It is, of course, desirable that laws should be made as specific as is compatible with the subject matter legislated upon. A speed of so many miles per hour is specific and meets the requirements of many situations, but not of all, even though the rate for country and city driving is made different, as it usually is. Many situations may arise, both in the country and in the city, where the statutory speed would be reckless driving. To meet these situations the statute in question was enacted. We regard it as a very wholesome and sensible statute; one that calls upon every driver of a motor vehicle to, at all times, exercise such care as will reasonably insure the safety of the life and property of others; one that will supply the defects in laws regulating speed at so many miles per hour. We have a similar statute as to manslaughter in the fourth degree under section 4363, which provides that every other killing of a human being by the act, procurement, or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared, . . .. ‘murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.’ It is a dragnet statute, one that defines by exclusion rather than by inclusion, to the end that no culpable killing of a human being shall go unpunished. So, here, we have a salutary statute requiring the exercise of reasonable care at all times in the operation of such dangerous machines as are the vehicles described in the statute. It covers situations not possible to c.over by specific speed limits, and it is as definite and certain in its terms as the subject matter will permit. It is not as drastic in its penalties as are many laws, no more definite in the description of offenses, that have for years been .enforced as valid laws.” (Italics ours.) (p. 492.)
Another well-reasoned opinion on the constitutionality of an indictment challenged for indefiniteness and uncertainty is found in the case of State v. Schaeffer, 96 Ohio St. 215, L. R. A. 1918B, 945, 117 N. E. 220. This Ohio case also treats so thoroughly all the principal contentions made by defendants that we are constrained to quote somewhat at length. The opinion, in part, reads:
“The fifth assignment of error urges that the statute, section 12603, general code, is unconstitutional and void for the reason that it does not observe the constitutional guaranty of sufficiently advising the defendant of the nature of the accusation against him, in that the statute is to.o indefinite and uncertain in its terms.
“It is claimed that the words ‘reasonable’ and ‘proper’ are so general, comprehensive, and variable that it would be impossible for the defendant to know, or for the jury to fairly determine, what was a violation of the statute; that juries in one ease would hold a speed to be reasonable, while the same speed under the same circumstances might be held by another jury in the same county, at the same term, to be unreasonable. In short, it is urged, that the statute should definitely fix what is a reasonable speed and a proper operation of a car.
“The constitutional guaranty is in very broad terms. It is the defendant’s right ‘to demand the nature and cause of the accusation against him, and to have a copy thereof.’
"The degree of particularity and specification required in the indictment is not fixed by the constitution,-but rather is fixed by the decisions of our courts. There can be no violation of the constitutional provision in this respect, by reason of the generality and indefiniteness of any averment set forth in the statute, so long as the indictment does advise the accused of the ‘nature and cause of the accusation! Yet courts have nullified statutes because the language was too uncertain and too indefinite to ascertain the meaning of the legislature, and also because the language did not in any wise advise the public as to what was or what was not an offense under it.
“The legislature, however, in this instance, saw fit to fix no definite rate of speed for the car, except to require that the car should not be operated at a speed ‘greater than is reasonable or proper, having regard for width, traffic, use, and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person.’
"In short, the legislature wrote into the statute what has become known as the ‘rule of reason’ ever since the Standard Oil and tobacco trust cases were decided by the supreme court of the United States. (221 U. S. 1, 221 U. S. 107.)
“In those cases the supreme court of the United States read into the statute the so-called ‘rule of reason,’ holding that the antitrust act really was not a denial of all restraint of trade, but only a denial of unreasonable restraint of trade.
“It would hardly be suggested that the supreme court of the United States read into the statute something that made the statute unconstitutional, or read into the statute something that made it so indefinite and uncertain that it was incapable of advising the public as to what was or was not an offense under it, or that made the statute practically unenforceable. And yet, by parity of reason, it is claimed in this case that the legislature which wrote into the statute the same 'rule of reason’ thereby in effect nullified such statute, because of the indefiniteness and uncertainty of its terms. The contention is not sound. The suggestion that juries on the same state of facts may hold one way in one county, and another way in another county, indeed, that in the same county upon the same state of facts one jury'may hold one way and another hold another way, is no argument against this contention. That is inevitable under any system of jurisprudence on any set of facts involved in a criminal transaction. Courts differ in their judgment, juries differ in their judgment, but that is no reason for the abolition of either, or for denying them jurisdiction sufficient to enforce the administration of statutes like the one in question. In our whole criminal procedure, even in capital and the most atrocious cases, where a man’s life and liberty for life are involved, it is made the special province and duty of juries to determine what is ‘reasonable,’ and whether or not there is a ‘reasonable’ doubt of the defendant’s guilt. Of course that is a conclusion — almost incapable of precise and specific definition. What one jury might hold to be a reasonable doubt, another jury would hold the contrary; and still there is no way other than to leave the question to the jury to determine what is and what is not a ‘reasonable doubt.’
“Again, one of the most common defenses interposed in prosecutions for murder is that of self-defense. It' is the settled law of this state, as in most others, that if the defendant at the time of the killing bona fide believed himself to be in danger, whether he was or not, and had ‘reasonable’ grounds for so believing, and used force pursuant to such situation, it is excusable homicide; and yet it is for the jury to put themselves in the situation of the parties, particularly that of the defendant, and determine from the evidence as to whether or not the defendant had ‘reasonable’ grounds. And so it is throughout our entire criminal jurisprudence. . . .
“Section 12-603 is as definite and certain on the subject matter and the numerous situations arising thereunder as the nature of the case and the safety of the public will reasonably admit.” (pp. 228, 231, 236.)
It would appear R. S. 19-242 is as definite and certain in its terms as the subject matter will permit. County commissioners have numerous and sundry purchases which must be made and contracts which must be let. The statute could not include the exact amounts to be paid for hundreds of various types of articles which must be purchased. Clearly the statute could not include exactly what the commissioners should pay, as plaintiff suggests for brooms, janitors’ supplies, automobile tires, trucks, printing or other articles. Can it be fairly said that public officials would really have practical difficulty in ascertaining what constitutes ordinary compensation or price for services rendered or materials furnished? True, there might be some slight variation. It is suggested that public officials would be subject to prosecution for the slightest departure from the letter of the law. The principle that the spirit rather than the exact letter of the law prevails, has been previously announced. In State v. Bush, 47 Kan. 201, 27 Pac. 834, it was said:
“A departure from some directory provision, made without fraudulent intent, and which in its nature and effect cannot injure anyone or operate to defeat or interfere with the purpose of the act, cannot be regarded to have been in the mind of the legislature in prescribing the penalties of the act. Although such departure appears to be within the strict letter of the act, a consideration of the mischief intended to be prevented, the remedy proposed, and the punishment provided, indicate clearly that such was not the intention of the makers of the statute. It has already been held that, when the intention of the legislature can be discovered, it should be sensibly followed, although such interpretation may seem contrary to the letter of the statute. (Intoxicating Liquor Cases, 25 Kan. 751, 762).” (p. 205.)
Our homicide statutes, particularly R. S. 21-407, 21-414, 21-416, 21-418 and 21-420, where the words “culpable negligence,” “negligently,” and “state of intoxication” are used in defining different degrees of homicide, have been previously invoked. Culpable negligence has been defined as the want of such care as a man of ordinary prudence would use under similar circumstances, and as the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and as substantially equivalent to “actionable negligence,” and also as equivalent to “criminal negligence.” (45 C. J. 632; C. K. & N. Rly. Co. v. Brown, 44 Kan. 384, 390, 24 Pac. 497.) In the c,ase of State v. Bailey, 107 Kan. 637, 193 Pac. 354, defendant was convicted of manslaughter on a charge of culpable negligence in driving an automobile.
The word “ordinary” is employed in other statutes. R. S. 66-261 requires railroads to have a headlight that will outline the figure of a man at a distance of 800 feet under ordinary night conditions. Its violation is a misdemeanor. (R. S. 66-262.) R. S. 58-101 is our bulk-sales statute. By its provisions the sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto otherwise than in the ordinary course of his trade or business is void as against his creditors unless certain requirements are complied with as specified by the statute. Its violation constitutes a misdemeanor. (R. S. 58-103.) No difficulty was encountered in applying the word “ordinary” in Oil Co. v. Consolidated Companies, 110 Kan. 245, 203 Pac. 915. It is doubtful whether any other single word has such common usage and is so universally applied and understood.
In Funk & Wagnall’s Standard Dictionary, twentieth century edition, the word “ordinary” is defined as an adjective, and meaning: (1) of common or everyday occurrence; customary; usual; as, an ordinary amount of business. (2) According to an established order; methodical; regular; normal.
In 3 Words and Phrases (second series) we find definitions of the word “ordinary” as modifying the following words: Acts, appliances, baggage, business, calling, care, caution, circumspection, clerk, course of business, course of law, current expenses, debts, diligence, docility, expenses, floods, language, low-water mark, luggage, negligence, probate proceedings, prudent, rainfall, repairs, risk, skill, state business, tax, tenancy, thread, time, travel, use, wear and tear.
In the original edition, in addition to the words above defined, we find the word “ordinary” as an adjective modifying the following words: And yearly taxes, bank deposits, cattle, circumstances, course of practice, courts of law, domestic business, expenditure, fences, form, grant, inspection, jurisdiction, low water, man or person, method, navigation, neglect, observation, place, precaution, process of law, purchaser, purposes, service, stage of water, stock, tides, use, work, yearly taxes.
In the third series of Words and Phrases, in addition to the words above defined, we find the word “ordinary” as an adjective modifying the following words and phrases: Cash dividends, discharge or release, handling, hazards, high tide, high-water mark, kerosene, means of signaling, needs of city, partnership, plantation purposes and revenue.
In contradistinction to the word “ordinary” is the word “extraordinary” defined in the same dictionary as, (1) Being beyond or out of the common order or method; exceeding the ordinary degree; not ordinary; unusual; . . . (2) Employed for an exceptional purpose or on-a special occasion; as a noun it is defined as, (1) Something extraordinary; especially, an extraordinary expense or allowance; specifically (Eng.), any allowance made to troops beyond the customary gross paid.
In the case of Ellis v. United States, 206 U. S. 246, 51 L. Ed. 1047, 27 S. Ct. 600, the eight-hour law was held to be constitutional, and the supreme court had no difficulty in determining what was an “extraordinary emergency,” nor in upholding an instruction that if the defendant intended to permit the men to work over eight hours on the calendar day named that he intended to violate the statute notwithstanding that he may have been mistaken as to what constituted an emergency extraordinary. (Italics ours.)
In the case of Balt. & Ohio R. R. v. Int. Com. Comm., 221 U. S. 612, 55 L. Ed. 878, the law regulating hours of railway employees was assailed upon the ground that the exception of cases of emergency made the application of the act so uncertain as to destroy its validity. In denying this contention the supreme court said:
“It is said that the words, ‘except in case of emergency,’ makes the application of the act so uncertain as to destroy its validity. But this argument in substance denies to the legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define, without the use of generic terms, all the specific instances to be brought within it. In a legal sense there is no uncertainty. Congress, by an appropriate description of an exceptional class, has established a standard With respect to which cases that arise must be adjudged.” (p. 620.)
Therefore it can be seen that the supreme court of the United States has permitted congress to define by using generic terms and not requiring that all specific instances be brought within it.
From what has been said it follows the order sustaining the motion to quash must be reversed. The cross-appeal is dismissed. | [
-12,
-20,
-3,
-100,
10,
96,
50,
-84,
65,
-79,
39,
115,
109,
-62,
4,
63,
-6,
-1,
84,
121,
65,
-74,
55,
35,
118,
-77,
-111,
-41,
-73,
-49,
-27,
-84,
76,
48,
-22,
85,
70,
-56,
69,
80,
-114,
15,
-120,
-51,
-31,
74,
48,
19,
118,
11,
49,
-50,
-5,
41,
-104,
-61,
75,
44,
91,
-83,
80,
-112,
-102,
29,
95,
20,
35,
-92,
-104,
3,
-24,
44,
-104,
57,
3,
-24,
114,
-74,
-110,
116,
107,
-71,
40,
106,
98,
3,
-111,
-17,
-100,
-104,
62,
-1,
-97,
-89,
-48,
17,
74,
13,
-105,
-97,
116,
22,
39,
-4,
-22,
-124,
25,
108,
-119,
-50,
-108,
-77,
-113,
117,
26,
-61,
-50,
-125,
16,
112,
-60,
98,
92,
119,
16,
123,
-50,
-12
]
|
The opinion of the court was delivered by
Hutchison, J.:
This was an action to set aside a deed given by one of the two defendants to the other and have the lien of a judgment held by the plaintiff against the first-named defendant, the grantor in the deed, adjudged superior to the rights of the grantee in the deed.
The plaintiff, the receiver of the State Bank of Sylvia, Kan., in his'petition alleges collusion and conspiracy between the defendants Ruth Thompson and her brother-in-law, George Thompson, to delay and hinder the plaintiff in the recovery of a judgment against Ruth Thompson, by her filing false and fraudulent verified answers and procuring continuances in an action against her on notes, and in the meantime conveying to George Thompson the real property involved.
The defendants filed separate answers denying the allegations of the petition and alleging indebtedness of Ruth Thompson to George Thompson, for which the deed was given.
After hearing the evidence the trial court filed the following decision:
“This action is brought to set aside a deed given by defendant, Ruth Thompson, to her brother-in-law, George Thompson, in the face of a suit pending by the plaintiff herein against Ruth Thompson on certain promissory notes, . . . the deed in question having been given at a term prior to the term at which judgment against Ruth Thompson was rendered, so that the judgment did not attach as a lien upon the real estate.
“The court has given the evidence in this case very careful consideration, yet he is of the opinion that Ruth Thompson, being indebted to her brother-in-law for some $2,900 for work and labor performed in farming the land in question, made the deed conveying the land to him in satisfaction of such debt and not for the purpose of defrauding the plaintiff herein. The conveyance was made for the purpose of paying the debt, and while Ruth Thompson did prefer her brother-in-law to her creditors, especially the receiver of the failed bank, and she probably intended that it should, yet the conveyance does not violate the rule of adequate consideration and good faith.
“Judgment will be rendered for the defendants accordingly on January 20, 1934.”
Subsequently the trial judge filed a supplemental decision striking out one clause in the former decision (which is eliminated from the above copy), and adding some details. Judgment was rendered for defendants, from which the plaintiff appeals.
The appellant states the question involved in the following language:
“The question involved in this appeal is whether an insolvent debtor, by fraudulent and wrongful acts and means, may delay one creditor in obtaining a judgment to which such creditor is entitled in a suit pending, and meanwhile make a valid transfer of the debtor’s property to another creditor so as to give such other creditor a preference.”
Appellant’s counsel, with eminent fairness and candor, admit certain limitations and restrictions in this appeal. One is concerning the finding by the trial court of a bona fide indebtedness of Ruth Thompson to George Thompson at the time she made the conveyance to him, and counsel then state that “the question as to the existence of such indebtedness is not raised in this appeal.”
Concerning the privilege of the debtor to give a preference to one creditor over another, counsel for appellant say such general rule is not disputed, but they contend that the facts in the case at bar are such that the general rule does not apply. Counsel for appellant further state that they realize the trial court’s findings are conclusive on disputed questions of fact, but they rely only upon the facts which are established by undisputed evidence to reverse the judgment of the trial court.
Appellant devotes several pages of his printed brief to a summarizing of this undisputed evidence and a history of the case, and we are at once met with a serious difficulty in classifying the filing of false answers, knowing them to be false, with undisputed evidence. The same with there being no good faith in filing an amended answer. Is an answer to be denominated false and fraudulent, even if verified, when the defendant loses his case in court? Is the lack of good faith to be an undisputed fact when, after argument, an amended answer is desired to be filed because of an insufficiency in the former answer? Are former answers to be classed as false and fraudulent when the defendant fails to further answer after an amended petition is filed setting out a definite and specific consideration not contained in the original petition? The real history of the case we think is undisputed. The first action was a suit on two notes, one for $2,000 and the other for $281. The husband of Ruth Thompson at the time of his death in 1929 was indebted to the plaintiff bank in the sum of $2,925, on- notes signed by him and not by his wife. After his death she signed notes covering his indebtedness to the bank upon an agreement (as stated in the amended petition) that the bank would not cause an administration of the husband’s estate. She also borrowed several small sums herself from the bank after her husband’s death. These notes were renewed several times and on August 1, 1931, they all together amounted to $4,581. A second mortgage was given by her to the bank on a two-hundred-acre farm to secure one note for $2,300. The other two notes, amounting to $2,281, were the ones on which the action was commenced. These two notes became due November 1, 1931, and the bank refused to renew them.
In December, 1931, Ruth Thompson and George Thompson went to consult an attorney about her giving him a deed to her half interest in the 140-acre tract belonging to her husband at the time of • his death. They saw the attorney again in February, 1932.
The action was commenced by the bank against Ruth Thompson on these two notes on April 2, 1932. The April term of court in Reno county began on April 4, 1932. The plaintiff was anxious to procure a judgment at the April term of court so that the lien thereof would date back to the first day of that term. On April 27, 1932, the defendant filed her first answer to the plaintiff’s petition. It was verified by her before a notary on April 25, 1932. On the same day she executed the deed to George Thompson to her half interest in the 140-acre tract. On May 14, 1932, the trial court heard the motion of the plaintiff for judgment on the pleadings, and after argument the defendant asked and was given leave to file an amended answer instanter. It was also verified and alleged that the indebtedness represented by the notes on which suit was brought was that of her deceased husband and not her indebtedness and there was no consideration for her signing these notes.. On May 21, 1932, another motion of plaintiff for judgment on the pleadings was heard by the court, and during the argument thereon the defendant was given leave to file instanter a second amended answer alleging there was no consideration whatever for the signing of the notes by her. This answer was verified and filed on May 23, 1932. On the same day the deed to George Thompson was acknowledged before a notary. The last-amended answer raised a jury issue, and it was then too late to have a jury trial at the April term.
On June 1, 1932, the plaintiff filed an amended petition setting up as a consideration for the defendant giving the notes an agreement of the defendant to pay the indebtedness of her husband if plaintiff would not require an administration of the estate of her husband. No answer was filed to this amended petition, and the case was passed on the first day of the September term, 1932, to October 19, 1932, at which time the defendant did not appear in person or by attorney, and judgment was rendered against her on the two notes. Execution was issued on November 1, 1932, and the deed to George Thompson was recorded on November 3,1932. Ruth Thompson had no property except that which she received from her husband’s estate.
In the case at bar the attorney for Ruth Thompson in the former case testified that the filing of the amended petition gave him his first knowledge as to a consideration for the notes being a promise not to cause administration of the estate.
Appellant calls attention to several coincidences as to dates or approximate dates: First, when renewal of the notes was refused by the bank on November 1, 1931, and Ruth Thompson and George Thompson interviewed an attorney in December, 1931, about Ruth Thompson’s giving a deed to George Thompson of her interest in the 140-acre tract; second, the deed was dated the same day the first answer was verified, viz., April 25, 1932; third, the deed was acknowledged the same day the first amended answer was verified, viz., on May 23, 1932; and fourth, the execution on that judgment was issued on November 1, 1932, and the deed was filed for record on November 3, 1932. From these coincidences the plaintiff reasons that the acts of the defendants in this action were prompted by the progress of the suit on the notes, and their acts with reference to the deed were made necessary by the progress in the suit, to prevent the plaintiff from getting a lien on this land. This reasoning is logical, but we cannot say that it leads to the necessary conclusion of willful and intentional fraud any more or as much, as in many cases, where the deed is made to all the property before the remaining creditors have any suspicion of insolvency.
Appellant further argues that the frequent delays caused by the filing of so many answers and the other conduct of the defendant in court were with the design of keeping the plaintiff from getting a judgment at the April term of court so as to have its lien date from the first day of the term. What was done in this regard, and when such things were done, are undisputed features of the evidence, but the design and purpose of doing so in order to make the procuring of such delay fraudulent must be inferred from such facts and the surrounding circumstances. The trial court saw and heard the witnesses relating these surrounding circumstances and was in a much better position than we are to reach a conclusion as to a wrongful or fraudulent purpose intended, although in some cases we might conclude the trial court had overlooked the serious importance of some such features.
It is very evident from the pleadings in the first case that both parties were not applying the comprehensive term, consideration, to the same actual fact until the amended petition was filed, which al leged as a consideration an agreement of the plaintiff not to begin administration proceedings on the husband’s estate. Defendant’s answers show definitely that she was regarding it as an indebtedness of her deceased husband and was denying having received any consideration for signing these two notes, which were for several hundred dollars less than the indebtedness of her husband to the bank at the time of his death. This conclusion, based upon the pleadings alone, is strengthened by the evidence of the defendant and her attorney in the case at bar.
Of course, a consideration of any kind is a sufficient consideration, but before a denial of consideration can well be said to be false and intentionally fraudulent the denial should be of the particular fact or feature of the case constituting the consideration. Appellant cites an appropriate text from 27 C. J. 634:
“The fact that the transfer is made by an insolvent debtor on the eve of rendition of judgments against him is at most a badge of fraud; and when it appears that the transfer is a sale to a creditor in payment of a debt admitted to be justly due, and for a full and fair price, and that the debt is hereby discharged, all presumption of fraud arising from the pendency of suit is removed. On the other hand the right of plaintiff in an action to enter and have the benefit of a judgment will be protected by the courts against the actual fraud of defendant debtor, as where the latter by false promises and assurance or ungrounded opposition obtains delay in the proceedings and meanwhile transfers his property or confesses judgment in favor of another creditor; in such a case the plaintiff’s judgment will be given priority.”
Appellant cites several cases from Kansas and other states along the same line.
We are unable to see actual fraud in the answers, in the delays obtained, in the execution of the deed or in the several coincidences pointed out. Nor are we able to find enough undisputed evidence on which to base a finding of fraud or fraudulent intention on the part of the defendants or either of them.
Appellant in his brief admits that if the deed had been executed and delivered in December or February when defendants went to see an attorney about executing such an instrument, and before the commencement of the suit, then the general rule permitting a debtor to prefer a creditor would have applied, but she was not entitled to such a privilege after suit had been commenced and plaintiff claimed to be entitled to have a lien going back to the first day of the April term.
R. S. 60-3126 authorizes the lien of the judgment obtained in district court to attach from the first day of the term it is obtained when the suit was filed before the commencement of the term. But nothing in that section makes it apply to land already conveyed when judgment is rendered at a succeeding term of court. The two sections of 27 C. J. preceding the one above cited, being sections 393 and 394 on pages 633 and 634, are pertinent and are as follows:
“Except where in connection with other circumstances they tend to taint the transaction with fraud, secrecy and haste in effectuating a preference constitute no evidence of fraud, for the debtor has a legal right to give the preference and the creditor has an equal right to use influence to obtain it and to be secretive and energetic in order that other creditors may not forestall him. Nor is fraud shown by the debtor’s failure to disclose to his other creditors the existence of the preferred debt or of the preferential agreement. Indeed it seems that secrecy and haste which would be sufficient to show fraud in a sale of property for a money consideration will not avail to impeach a transfer in satisfaction of an antecedent debt.
“A preference is not rendered fraudulent by the fact that it is made during the pendency of an action by another creditor against the debtor. The fact that the preference is made by an insolvent debtor pending bankruptcy proceedings against him and in violation of the bankruptcy act does not affect its validity under the laws of the state.”
It is also urged that defendant George Thompson should have recorded his deed as soon as he received it, and his failure to do so was an evidence of fraud. In the case of National Bank v. Naill, 52 Kan. 211, 34 Pac. 797, it was said:
“A bank having a claim against an insolvent firm, which is consulted by a firm or other creditors with reference to collecting and securing their claim, is not legally bound to disclose the existence of its claim to such firm, but may keep silent and protect its own interest, provided it is guilty of no fraudulent conduct, and does nothing more than is necessary to its own protection.” (Syl. ¶2.)
In Clement v. Hartzell, 57 Kan. 482, 46 Pac. 961, it was said, after stating the right of one creditor to obtain a preference if he can do so fairly, that—
. . unless such preferred creditor stands in some relation of confidence to the others he is under no obligation to disclose to them what he has done, or what he intends to do, to protect his own interest.” (Syl. If 3.)
Appellant cites Beekman v. Trower, 82 Kan. 327, 108 Pac. 110, where in a petition to vacate and set aside a judgment rendered against a oodefendant who was a lienholder, it was alleged, as it is here, that the answer in the former case was false and known by defendants to be false at the time they filed it, and the demurrer to that petition was held to have been properly overruled. On the hearing of the demurrer to the petition the allegations therein are taken to be true, but we have gone one step further here and plaintiff is confronted with the difficulties of proving those allegations. The trial court hearing all the evidence found fraud had not been established thereby, and on appeal to this court as to such matters as this court can properly review in a case of this kind we reach the same conclusion.
The judgment is affirmed. | [
-16,
-20,
-80,
45,
-22,
96,
40,
-70,
97,
-95,
-79,
91,
-49,
-60,
5,
105,
102,
57,
20,
106,
119,
-74,
21,
-8,
-46,
-77,
-39,
93,
-67,
76,
118,
-57,
77,
48,
-54,
-107,
102,
-62,
-123,
84,
-114,
4,
-87,
101,
-55,
8,
48,
-25,
86,
64,
113,
-65,
-13,
41,
60,
66,
104,
43,
-53,
60,
-111,
-80,
-85,
-113,
127,
2,
-79,
37,
-116,
102,
-24,
42,
-112,
57,
-127,
-24,
114,
-74,
-106,
116,
77,
-69,
40,
118,
98,
49,
117,
-21,
12,
-104,
38,
-10,
-99,
-89,
-46,
88,
-127,
40,
-68,
-99,
101,
80,
38,
-10,
-2,
5,
24,
108,
15,
-49,
-42,
-79,
-97,
60,
24,
3,
-29,
-117,
48,
113,
-51,
-32,
92,
103,
123,
-101,
-114,
-72
]
|
The opinion of the court was delivered by
Dawson, J.:
These two cases, consolidated by the trial court, were based on certain claims of the litigants against each other, and which were quickened into litigation because of the cash-basis act of 1933.
On May 15, 1933, the board of county commissioners of Allen county filed with the board of education of Iola a claim for $16,-487.99 for moneys illegally disbursed by county treasurers to the board of education throughout a period of twelve years, 1920 to 1931, inclusive.
Not to be outdone, the board of education filed a claim against the county for $52,208.40, the most of which had scarcely a shadow of merit on which to predicate it.
Each of these official boards promptly rejected the claim of the other, and both appealed to the district court, where, by order of court, accountants were employed to examine the pertinent records for the period from 1920 to 1934 and to audit the accounts between the parties.
Following this accounting, the litigants filed bills of particulars amplifying their claims. The trial court sustained the county’s claim against the board of education in the sum of $15,516.99, and likewise sustained the claim of the board of education against the county in the sum of $4,404.68. Setting the one claim against the other, the trial court'gave judgment in favor of the county for the difference between these two sums — $11,501.51.
The board of education appeals. .Before taking note of particular matters urged on our attention, we desire to make a general observation touching the inherent limitations of an appeal in an accounting case. An appellate court does not undertake the functions of an accountant or special auditor, nor does it recheck his work to discover possible inaccuracies in his figures or arithmetical processes. Trial courts may find it practical to scrutinize such details with particularity, or if they are too greatly pressed for time they may assign such ¿asks to a referee. (R. S. 60-2923.) The result of an accounting by auditors employed by order of court or with its sanction has substantially — although not technically — the same effect as the report of a referee. It needs only the approval of the court to become a conclusive finding of fact on which a judgment may be entered; and that judgment can only be overthrown on appeal by showing some plain and demonstrable error which inheres in the accounting.
In Farmers State Bank v. Commercial State Bank, 136 Kan. 447, 16 P. 2d 543, which was an action for an accounting of miscellaneous claims between two banks, this court said:
“Before concluding, however, we must say a final word of comment on the sort of an appeal presented here. From first to last the record and the argument have been interlarded with a myriad of items of account on the assumption that this court should take these up and deal with them separately. Not so, however. That was the function of the trial court, as is the case in any other action involving mere issues of fact. In City of Oswego v. Condon, 124 Kan. 823, 825, 262 Pac. 542, where a formidable record involving an accounting to establish an alleged shortage in a city treasurer’s funds was submitted for our review, it was said :
“ ‘It is altogether beyond the functions of this court to make an independent accounting of the fiscal affairs of the city ... to determine the status of the treasurer’s accounts. It must suffice to say that no manifest or demonstrable error is disclosed in the findings and they will have to stand.’ ” (p. 454.)
Coming now to the particular specifications of error urged by the board of education, it is first contended that the county had no authority to withhold tax moneys collected by the county treasurer which were levied for the current expenses of operating the city schools. But that is not a fair interpretation of the county's claim against the appellant nor of the trial court’s judgment in this case. Of course the current levies to operate the schools cannot be diverted to the payment of the school board’s stale debts; and if this judgment cannot be satisfied out of funds on hand without prejudice to the current fiscal needs of the schools, the board of education will need to refund this judgment indebtedness as the cash-basis law provides. (R. S. 1933 Supp. 10-1107; Citizens Bank of Weir v. Cherokee Township, 138 Kan. 282, 25 P. 2d 1019; State, ex rel., v. Toy, 138 Kan. 166, 23 P. 2d 601.) In State, ex rel., v. Crawford Township, 139 Kan. 553, 557, 32 P. 2d 809, it was said:
“The new cash-basis law (Laws 1933, ch. 319) provides for the issuancé of bonds by the taxing district to make good an indebtedness to the county or other parties without disturbing funds levied and collected for another purpose. R. S. 72-1031 provides for levying a tax for the collection of a judgment that may have been obtained against a school district.”
Appellant next argues that the county should be held liable to the board of education for the delinquent personal property taxes based on appellant’s school-tax levies where the sheriff could have collected them if he had diligently performed his duty. This contention, if not actually frivolous, certainly has no substantial merit.
Another contention which’ only needs to be stated to be condemned is that personal taxes collected and embezzled by a deputy sheriff should be charged against the county as a justiciable claim in favor of the appellant.
The next two errors assigned relate to- the trial court’s refusal to permit the appellant to offer evidence about what an accounting between the litigants would show for the period between 1907 and 1919, inclusive. This complaint cannot be considered for two insurmountable reasons. The rejected offer of evidence was not followed by the production of such evidence in support of the motion for a new trial. (State v. Ball, 110 Kan. 428, 432, 433, 204 Pac. 701; State, ex rel., v. Wright, 140 Kan. 679, 684, 38 P. 2d 135.) Moreover, the record shows that the trial court took judicial cognizance that the litigants had agreed that the accounting period should only go back to the year 1920. The record reads:
“By the Cotjrt: Now stop right there. You just as well forget that allegation in your answer right now. We had an agreement in open court of the time covered by the claim you gentlemen were going to file.
[Counsel for Appellant] : “No, that isn’t correct.
“By the Court: That is correct. It is exactly correct, and I don’t want you to dispute me on it because that is the order, and I know what I made. Now if you gentlemen had journalized this as you should have done, this wouldn’t have happened, and if you didn’t journalize it, that is your fault; . . .”
It has been repeatedly held that the trial court’s personal recollection of earlier proceedings in the same case has the potency of evidence. (Christisen v. Bartlett, 73 Kan. 401, 403, 84 Pac. 530; State, ex rel., v. Lyons, 106 Kan. 860, 862, 863, 189 Pac. 976; Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479; Tawzer v. McAdam, 134 Kan. 596, 601, 7 P. 2d 516.)
Appellant finally projects a contention that the trial court did not have power to enter judgment against it for a greater amount of tax moneys found to have been overpaid by the county in any one year than the item listed for that particular year in the verified claim of the county. It does not clearly appear that this was done, however. The county claimed $16,487.99. The court sustained that claim in the sum of $15,906.19, and this sum was arrived at by the method agreed upon by the litigants — by the employment of competent accountants to ascertain the exact status of the accounts of the litigants for the agreed period of twelve years. No demonstrable error is made to appear under this assignment.
The other objections to the judgment have been duly considered, but they do not raise the slightest doubt as to the justice of the trial court’s disposition of them, nor would they justify further discussion.
The judgment is affirmed'. | [
-16,
-22,
-67,
-4,
-118,
-32,
42,
-114,
72,
-95,
-93,
87,
-19,
-62,
21,
109,
-10,
125,
80,
106,
-58,
-77,
19,
11,
-86,
-77,
-7,
-43,
-67,
77,
-12,
-43,
76,
48,
-54,
-43,
102,
66,
-63,
48,
-114,
12,
-85,
78,
-3,
96,
52,
108,
114,
9,
49,
-114,
-21,
44,
-100,
67,
104,
44,
-39,
-86,
0,
-79,
-106,
7,
111,
22,
49,
-122,
-98,
7,
-56,
42,
-104,
51,
-94,
-23,
58,
-90,
6,
-43,
1,
-87,
9,
96,
102,
17,
-75,
-49,
-80,
-119,
38,
-13,
-99,
-89,
18,
88,
-94,
-115,
-68,
29,
116,
80,
7,
116,
-32,
-59,
91,
108,
39,
-113,
-122,
-109,
-113,
102,
-102,
11,
-25,
-85,
18,
81,
-51,
-10,
92,
79,
50,
-77,
-49,
-108
]
|
The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover damages from the defendant on account of alleged fraud and deceit practiced upon the plaintiff by the defendant and alleged false representations, and promises made by defendant to plaintiff, which defendant, it is alleged, never intended to perform, whereby defendant procured from plaintiff, relying thereon, title to an improved plantation of 1,407 acres in the state of Arkansas for an inadequate amount of money advanced in the nature of a loan.
The answer of the defendant was a general and special denial of all the allegations of the petition, except the fact that he is now the legal owner and in possession of the plantation described in the petition. The case was tried by a jury, evidence was introduced, instructions were given and the jury failed to agree and was discharged.
The defendant appeals, assigning errors (1) in the admission of incompetent, irrelevant and immaterial testimony over objections of the defendant, (2) in overruling the demurrer of defendant to the evidence of the plaintiff, and (3) in refusing to sustain the request of defendant for an instructed verdict.
Throughout the trial the defendant made timely objections and motions on the expressed theory that the action of the plaintiff was one for damages for breach of contract, and the plaintiff with equal consistency maintained and announced that the action of the plaintiff was to recover damages from the defendant on the ground of fraud, claiming the measure of such was the difference between the fair value of the plantation and the amount of money advanced by the defendant. One of such announcements was at the close of the taking of testimony in response to a motion filed by the defendant to require plaintiff to elect on which theory he was attempting to recover, and the plaintiff, without a ruling on the motion, announced it was on the theory of fraud and deceit.
The application of the statute of frauds to the evidence in the case and the force and effect of representations and promises looking to the future instead of relating to past or existing facts are the most important features involved in this appeal.
We shall pass the first assignment of error as to the admission of incompetent, irrelevant and immaterial testimony and endeavor to disregard that which we might conclude to be such, in our consideration of the most important question submitted to us in this appeal, viz., whether the plaintiff’s evidence was sufficient to justify the submission of the plaintiff’s case to the jury and the overruling of the defendant’s demurrer thereto.
The plaintiff introduced a written contract purporting and said to have been signed by the defendant, in which defendant agreed to loan plaintiff on his plantation in Arkansas from time to time, as needed, the total sum of $60,000. The plaintiff’s evidence further shows that two advances were made in the total sum of $25,000 and a note and mortgage were given for the same, but no further advancements were ever made by defendant to plaintiff, although plaintiff testifies to numerous requests for such to which favorable promises were always and regularly given that further advances would shortly be made. The evidence further shows that later the plaintiff exchanged the equity in the plantation for an apartment in Kansas City, Mo., and still later, at the request of the representative of the defendant, he instituted proceedings in Arkansas to recover the title and possession of the plantation upon the promise of such representative that defendant would carry out the terms of the contract and advance- the balance of the money; that later the defendant asked plaintiff not to object to his intervening in that action in order to foreclose his mortgage, and if he did not interfere with the foreclosure or attempt to redeem, the defendant would convey the title back to him and advance the balance of the loan promised; that numerous requests and promises along this line were made by the defendant to the plaintiff until defendant procured in said action legal title to the plantation, after which he declined to fulfill any of them or the original contract itself; that the plaintiff had implicit confidence in all of defendant’s promises and relied upon them; that defendant told him after he had acquired title to the plantation that “he was not going to loan me any money and that I didn’t have time to refinance that place and that he was just going to take it over and run it and going to forget about any other deal we ever had had,” and when his attention was called to the contract he said, “that didn’t make any difference, that he had made up his mind that he wasn’t going to go through with it.”
One other witness testified he saw defendant sign the contract. Two others said they saw it shortly after it had been signed. Others testified as to the improvements and cultivation of the plantation, its oil prospects and efforts made toward development along that line, although no substantial results were reached as to production of oil-or gas. Also, many witnesses testified as to the market value of the plantation, the figures given being greatly in excess of the loan advanced.
Was the plaintiff’s evidence, of which the above is the general substance, sufficient to make a prima facie case for plaintiff or sustain his allegations to recover damages for fraud and deceit?
Appellant argues that appellee- has, by trading off his plantation, rendered himself unable to perform his part of the contract even if appellant had been willing to have complied with the contract, and cites the rule in 13 C. J. 647 to the effect that performance of a contract is excused when it is prevented by the acts of the opposite party or is rendered impossible by him. In the same connection appellant also cites Dill v. Pope, 29 Kan. 289, and Supply Co. v. Cement Co., 91 Kan. 509, 138 Pac. 599, to the same effect. Aside from the fact that these authorities have under consideration the enforcement of contracts, and assuming for the purpose of argument that the same rule might apply in an action to recover damages on account of fraud and deceit, one feature of the evidence is apparently overlooked, and that is where' the appellee at the request of the representative of the appellant commenced an action in Arkansas to set aside the conveyance of the plantation and that in the same action the appellant did later acquire legal title to the plantation, so that the disability of the appellee was only temporary by reason of the exchange of properties and the appellant was not prevented by the acts of the appellee from acquiring full and legal title to the plantation.
Appellant insists that the evidence fails to show any misrepresentation of material facts upon which a cause of action sounding in fraud or deceit can be predicated because the alleged fraud and deceit constitute representations in futuro, citing the case of Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373. This was an action to recover damages for the breach of an oral promise to loan plaintiff a certain amount to be secured by a mortgage upon certain real estate, where the petition alleged that defendant never intended to make a loan and that the promise was false and fraudulent. It was stated in the syllabus that the plaintiff parted with nothing and the defendant gained nothing as the result of the promise, and then held:
“The rule that false representations in order to be fraudulent must relate to a present or past state of facts, and that no action will lie to recover damages as for deceit in the failure to perform a promise looking to the future, is held to apply, and therefore plaintiff’s petition failed to state a cause of action.
“The contract being entire and indivisible, relating to an interest in and concerning lands, and not in writing, it cannot, by reason of the statute of frauds, be enforced.” (Syl.)
No one would quarrel with the principles of law contained in the above syllabus, but the facts in the case differ in so many ways from the facts in the case at bar. The contract there was oral, here it is written; there the plaintiff parted with nothing and the defendant gained nothing; here plaintiff parted with 1,407 acres for $25,000 and defendant gained the plantation for that amount, said to be grossly inadequate; and the promises there were found to be looking to the future instead of relating to present or past state of facts. This case was decided on the pleadings, and, in the opinion, it was stated that—
“There is no statement in the petition that takes this case out of the general rule. There is the bare assertion that the promise' was made by the defendant for the purpose of deceiving the plaintiff in order to defraud him out of a portion of the land and that the defendant might become the owner thereof himself. This is a mere conclusion. No fact is stated in support of it;” (p. 814.)
The petition in the case at bar seems to take the case out of the general rule, mentioned in the above quotation, as is shown by a consideration of the allegations in the sixth paragraph of the petition, which is as follows:
“Plaintiff states that at the time such conversations and written and oral agreements were had in January, 1930, prior to the making of the first loan, this defendant did not intend to carry out the terms of said agreements, but made such statements and agreements as aforesaid falsely and with the fraudulent intent to mislead and deceive said plaintiff, intending thereby to lull the plaintiff into a feeling of security by such false and fraudulent promises and statements, and ultimately get possession and ownership of plaintiff’s said land for a wholly inadequate consideration, knowing that the plaintiff relied on all of said promises and agreements, placed especial confidence in said defendant and believed the defendant was honest and sincere in all of his said promises and in the making of said agreements. That at all of such times the defendant well knew that the fair and reasonable market value of said plantation was $125,000 or more, knew that said land had theretofore been mortgaged for almost $100,000 and knew that said land would amply secure loans of at least $60,000.”
Further allegations along the same line are found in paragraph 14 of the petition.
In the case of El Dorado Nat’l Bank v. Eikmeier, 133 Kan. 412, 300 Pac. 1085, it was held:
“A promise to do something in the future, by which the promisor obtained something of value, if the promisor had no intention of performing his promise at the time he made it, amounts to deceit and actionable fraud.” (Syl. 13.)
This ruling applied to the defense made to an action on a note given by defendants for the purchase of stock in an oil company where the promise was made by the payee to use the money derived from the notes given for the stock to drill a well on the land of the defendants, which representation it was alleged was known by the makers of the promise to be false when it was made.
Two other Kansas- cases cited by the appellant follow the general rule stated in the Kiser case, above cited. They are: Federal Agency Investment Co. v. Holm, 123 Kan. 82, 254 Pac. 391; and First National Bank v. Mense, 135 Kan. 143, 10 P. 2d 19, in neither of which, however, is there any allegation of intention so as to make the promise relate to a past or existing fact instead of being a -promise looking to the future. In 26 C. J. 1095, under the title of “State of Mind as a Fact,” after stating the general rule that no recovery can be had where the statement was purely promissory and did not involve a misstatement of intent, it is said:
“There is authority drawing a distinction between a promise made without an intent to perform and a promise made with an affirmative intent not to perform, and holding that the former is insufficient and the latter requisite to constitute actionable fraud.”
Along the same -line and under the heading of “Necessity for Overt Act” it is said in 12 R. C. L. 241:
“The intent must be accompanied by acts done for the purpose of carrying it into effect, or, in other words, must be acted out, by false representations, contrivances, or artifices, or by conduct which reasonably involves a false representation.”
Whether deserving of credit or not, there is evidence in the record of the plaintiff’s case along these lines.
Appellant insists that some of the evidence introduced by the plaintiff to establish his cause of action was in violation of the statute of frauds, R. S. 33-106, in that the contracts concern the sale of lands or interests in or concerning them and were not to be performed within one year from the time made. For the purpose of the demurrer we must consider the main agreement as having been in writing. Concerning the evidence showing surrounding circumstances and contemporaneous oral agreements which were not contained in the written document nor contradictory of any of its provisions, but tending to show the relation of the parties and the circumstances under which the instrument was executed, such parol evidence is not in violation of the statute of frauds nor does it attempt to vary or alter the terms of the written agreement and may properly be considered in showing the attitude and intention of the defendant in making the contract and his intention or lack of intention to fulfill it. (Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196; Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703; and Lucas v. Individual Mausoleum Co., 134 Kan. 266, 5 P. 2d 1077.)
As to the oral agreements which followed the alleged written agreement, they are not in violation of the statute of frauds if they relate to the details of performance of the written contract without impairing its obligation, as was said in the opinion in the case of Hughes v. Knapp, 109 Kan. 183, 197 Pac. 862, on page 186:
“The oral agreement did not relate to any of those fundamental things which the statute requires shall be reduced to writing. The agreement related merely to details of performance. These may be arranged orally for accommodation of the parties without impairing obligation, and enforcement may properly regard any arrangement which does not go to the substance of the contract.” (See, also, Welch v. McIntosh, 89 Kan. 47, 130 Pac. 641; State Bank v. Gonder, 132 Kan. 636, 296 Pac. 338; Comer v. Shoemaker, 134 Kan. 605, 7 P. 2d 500; Sinclair Refining Co. v. Vaughn, 135 Kan. 82, 9 P. 2d 995; and Jay v. Ellis, 135 Kan. 272, 10 P. 2d 840.)
Appellee cites two cases from other states that are in point of fact almost identical with the allegations and the evidence of the plaintiff in this case, namely, Papanikolas et al. v. Sampson et al., 73 Utah 404, and Kritzer v. Moffat, 136 Wash. 410, in both of which the courts held that damages were recoverable on account of fraud and deceit where representations and promises were made with the intention at that time that they would not be fulfilled.
We think there was sufficient evidence in the case at bar to go to the jury on the allegations contained in the petition, and that there was no error in the overruling of the demurrer to plaintiff’s evidence. With this ruling on the demurrer to the evidence of the plaintiff, there is nothing left to be said or done on appeal as to the error assigned in the refusal to grant the request of the defendant for an instructed verdict, when the situation was not later changed by evidence in rebuttal or some admission, stipulation or documentary evidence.
The ruling on the demurrer to the evidence of plaintiff is affirmed.
Harvey, J., dissenting. | [
48,
-20,
-8,
-67,
-120,
96,
104,
-70,
65,
33,
-90,
-13,
-19,
-54,
4,
123,
-30,
41,
84,
106,
78,
-93,
7,
-95,
-14,
-14,
-37,
85,
-75,
73,
-26,
-33,
76,
48,
-54,
-43,
102,
-54,
-61,
84,
-118,
3,
9,
100,
-39,
72,
52,
-29,
22,
11,
113,
-66,
-13,
42,
25,
-53,
73,
44,
75,
63,
81,
-72,
-119,
-115,
127,
21,
49,
38,
-98,
3,
-22,
46,
-112,
49,
1,
-40,
115,
-74,
-122,
84,
75,
-101,
8,
102,
98,
33,
117,
-17,
-72,
-120,
39,
94,
-99,
-90,
-46,
73,
75,
109,
-106,
-99,
126,
16,
5,
-10,
-11,
-99,
24,
108,
35,
-49,
-44,
-77,
29,
36,
26,
75,
-29,
-79,
16,
112,
-51,
-30,
93,
71,
59,
-101,
-113,
-105
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action by an administrator for an accounting. Judgment was for defendant. Plaintiff appeals.
The petition contained allegations substantially as follows: Stephen A. Holcomb and his first wife resided in Brown county. Of this union six children survive. He engaged in business there and accumulated considerable property. At the times with which we are concerned all these children were of age. In 1898 the first wife of Holcomb died. In 1900 Holcomb married the defendant in this case. In 1918 Holcomb became unable to manage his affairs. His wife assumed control of his affairs at that time. She made no accounting to any one. On November 5, 1927, Holcomb was declared in probate court to be of feeble mind. L. C. Christenson was appointed guardian to look after his affairs. From the time of the marriage of Holcomb and defendant in 1900 until 1918 they lived together and accumulated property and made investments, the exact nature of which plaintiff was unable to state. Holcomb died intestate on October 6,1929, and plaintiff was appointed administrator. From the time Holcomb became feeble-minded until the appointment of the guardian defendant handled his business, and during the process of the guardianship continued to handle these affairs. The guardian qualified on November 10, 1927, and served until he was discharged by the court on November 30, 1929. The guardian took care of all the property that was disclosed to him by defendant, but defendant did not disclose to the guardian all of the properties of Holcomb.
The petition then contained allegations as to the amount of the property that had come into the hands of defendant and that during the time that she was handling the property of Holcomb she had refused to disclose to the rest of the family any of the circumstances concerning the property or to make any account of the property in question either to the guardian during the life of Holcomb or to the administrator after his death.
The petition further stated that the defendant had in her possession or had converted to her own use large sums of money originally belonging to Holcomb and now belonging to the administrator and refused to account for it. The prayer was for $43,185 and for an accounting.
The defendant filed answer setting up several defenses.
Count 1 was a general denial of the allegations of the petition.
Count 2 was a repetition of what has been alleged in the petition about the appointment of a guardian for Holcomb and alleged that on January 19,1928, the guardian caused an inventory and appraisement to be made, which disclosed all the property of Holcomb; that the guardian continued to administer until November 30,1929, when his final report was made and approved and he was discharged. The answer alleged that the order of the court approving this final account estops plaintiff from bringing this action.
Count 3 contained allegations that Holcomb died on October 6, 1929, and that Fletcher was appointed administrator. It alleged that he had filed two inventories on December 2, 1929, in which he had inventoried all the property of deceased, including all claims of deceased against others; alleged that at the time of filing these inventories the administrator was acquainted with the assets of Holcomb and had the means of ascertaining and acquiring knowledge necessary to make a complete inventory of the property of Holcomb, and did make such an inventory, and was estopped by lapse of time and his conduct in the premises from bringing this suit.
Count 4 contained allegations describing another action in the same court where this action was pending and pleads the defense of res judicata.. The demurrer was sustained as to this count and it is not in issue here.
The fifth count of the answer alleged that the action was based on fraud and was barred by subsection 3 of R. S. 60-306 providing that an action for relief on the ground of fraud is barred where more than two years have elapsed since accrual of the cause of action, and more than two years had elapsed since the appointment of Mr. Christenson as guardian.
The sixth count of the answer alleged that subsection 3 of R. S. 60-306 provides that actions for trespass on real property or for taking, detaining or injuring personal property, including actions for specific recovery of personal property, shall be brought within two years after such action accrues, and since more than two years had elapsed since this action accrued and before it was commenced, plaintiff was barred by the -statute.
The seventh count alleged that the petition showed on its face that plaintiff was barred by R. S'. 60-307, which provides that if a person entitled to bring an action other than for the recovery of real property be at the time the cause of action accrued under any legal disability any such person shall be entitled to bring such action ' within one year after such disability is removed.
This count further alleged that whatever disability was sustained, as alleged in the petition, such disability was removed by the appointment on November 12, 1927, of the guardian and by the appointment of the administrator on October 10, 1929. This action was not brought until February, 1932, and more than one year had elapsed.
To each count of this answer, except the first, the plaintiff demurred. The trial court sustained the demurrer with reference to the earlier action referred to in count 4 and overruled it as to the remaining defenses. From this judgment the plaintiff appeals.
The second count sets up the judgment of the'probate court approving the guardian’s settlement and discharging the guardian. Apart from the question of limitations, which are considered later in this opinion, the defense contained in this count does not appear to tie in sufficiently to be made determinative of the cause. It will be sufficient to note that it is by statute, R. S. 39-207, made the duty of the guardian “to collect and take into his possession the goods, chattels, moneys, and effects, books and other evidence of debt, and all writings touching the estate, real and personal, of the person under his guardianship.” Under the records and issues before the court it will be presumed he did as that statute directs. The approval of the guardian’s settlement was a judicial determination (Musick v. Beebe, Adm’r, 17 Kan. 47; Martin v. Duckworth, 96 Kan. 717, 153 Pac. 505) implying that the guardian had accounted for all he had received or ought to have received. In Sparr v. Surety Co., 99 Kan. 481, 162 Pac. 305, it was said of such a judgment:
“An order of the probate court approving a final settlement of the guardian of an insane person and releasing and discharging the guardian, is a final judgment of a court of competent jurisdiction and is not subject to collateral attack.”
The administrator cites Klemp v. Winter, 23 Kan. 699, on this point. But, as pointed out in Martin v. Duckworth, supra, that case involved guardianship of a minor and does not apply to a guardianship of insane or feeble-minded.persons.
The defenses pleaded in the third and fifth counts may be disposed of briefly. The claim that the administrator is estopped by the inventory filed by him is of no consequence, and, in fact, is not argued by the defendant. The limitation against actions for fraud is pleaded, but plaintiff disclaims any intention of relying upon fraud and states it is not necessary to do so to state a cause-of action. As no fraud is directly alleged we will pass this point.
The sixth count sets up the two-year limitation applicable to actions for taking, detaining or injuring personal property, including actions for specific recovery of personal property. Concerning this defense the administrator argues that it is plain from the petition that this is not an action for the recovery of specific personal property. We consider it sufficient to observe that as the cause of action accrued in the lifetime of Holcomb, it was barred two years after his death. The administrator further argues on this point that limitations would not run until defendant had asserted an adverse claim to the property. To the extent the taking was tortious, or amounted to. a conversion, a further hostile attitude would be unnecessary to put the statute in motion. (37 C. J. 959.) In any event, the administrator alleges in his petition that defendant “has consistently and persistently refused to make any account therefor, either to the guardian of the estate . . .” etc. It was the statutory duty of the guardian to take unto himself all of the property of his ward. The refusal of defendant to account to the guardian was such a default or assertion of an adverse claim as the administrator contends was lacking.
In the seventh count defendant pleads R. S. 60-307, which provides that “if a person entitled to bring an action . . . be at the time the cause of action accrued under any legal disability” he shall have one year after the removal of the disability in which to sue. It is the view of the court that this statute applies and effectively disposes of this appeal. The appropriation of money and property by defendant, pleaded by the administrator, occurred throughout a period of ten years prior to Holcomb’s death, and a cause of action thereon accrued to him in his lifetime. A cause of action accrues when an action may be maintained. (Bruner v. Martin, 76 Kan. 862, 93 Pac. 165.) Even if Holcomb be considered an incompetent prior to his adjudication as such, that fact would not prevent a cause of action accruing to him. We do not understand that existence of a legally competent plaintiff is essential to the accrual of a cause of action. The disability of insanity does not operate to prevent a cause of action from arising in favor of the one under disability. We have a specific statute applicable to persons under disability which permits the action to be brought within one year after the disability is removed. (R. S. 60-307.) Holcomb’s disability was removed by his death, and the administrator or others interested had one year thereafter in which to sue. The administrator points out the introductory words of the statute “if a person entitled to bring an action,” and argues that because of the fiduciary relation which exists between husband and wife a trust resulted, and that no cause of action accrued in favor of the beneficiary (Holcomb) until there was a repudiation of the trust and an open assertion of title on the part of the trustee. Defendant’s refusal to account to the guardian, which we have considered, constituted assertion of title and denial of liability wholly inconsistent with recognition of a trust, and is sufficient answer to this argument of the administrator. The administrator’s principal contention is that if defendant as agent, or otherwise, received money and property belonging to Holcomb, she was bound under implied contract and by operation of law to account, and that the three-year limitation should apply. The answer to that argument is that this cause of action accrued at least as early as the appointment of the guardian and the refusal of Mrs. Holcomb to account. While the statute did not run during the time that Holcomb was under disability, still since the cause of action accrued, then R. S. 60-307 would govern, since it is a special statute enacted to cover situations such as this. To hold otherwise would mean that one under a disability would have the usual statutory period within which to bring the action, and the year provided in R. S. 60-307 besides. Obviously the legislature did not intend this. In Orozem v. McNeill, 103 Kan. 429, 175 Pac. 633, this court held:
“Assuming that one who has been defrauded, of money has the privilege of maintaining an action against the wrongdoer upon an implied contract to restore it, arising out of the fact of the fraud, recovery being dependent upon proof thereof, such a proceeding, unless begun within two years of the discovery of the fraud, is barred by the statute requiring ‘actions for relief on the ground of fraud’ to be brought within that period, notwithstanding that the limitation fixed for an action upon a contract not in writing, express or implied, is three years.” (Syl.)
The effect of this holding is that a particular statute of limitations supersedes a general one.
The administrator quotes at length from Jenkins v. Jenkins, 94 Kan. 263, 146 Pac. 414, and seemingly relies strongly on that case. A careful reading of the opinion in that case should afford the administrator little comfort. That was an action to set aside a deed procured from a person of unsound mind. Limitations were set up as a defense. The action was filed within less than one year after the death of the incompetent grantor. The court referred to the very statute under consideration herein, as well as the one relating to recovery of real estate, both applicable to persons under disability, and said:
“Any person who may be under a legal disability when the cause of action accrues may bring his action within a specified time after the disability is removed. Under the petition George Jenkins’ disability was never removed, and therefore the statute did not run as to him in his lifetime.” (p. 265.) (Italics ours.)
The administrator concludes from the words italicized that in the instant case Holcomb’s disability was never removed and that the limitation concerning persons under disability cannot apply. Since the court in the above case specifically recognized the application of the disability statutes, it is obvious, we think, that what was intended by the last-quoted sentence was to say Jenkins’ disability was never removed in his lifetime, and, therefore, the statute did not run in his lifetime. It is quite generally held that death of one under a legal disability operates to remove the disability. (37 C. J. 1037.)
Since the seventh count of the answer states a defense to the cause of action the demurrer to it was properly overruled.
The judgment is affirmed. | [
-78,
108,
-116,
-68,
26,
-32,
42,
-70,
121,
-93,
-95,
119,
-21,
-38,
16,
111,
-15,
9,
81,
105,
-25,
-77,
23,
-93,
82,
-13,
-69,
-35,
-95,
76,
-11,
86,
76,
48,
42,
-107,
102,
-118,
71,
-48,
14,
-124,
57,
-23,
-7,
-56,
52,
107,
22,
13,
85,
94,
-13,
46,
61,
71,
104,
46,
121,
-70,
-48,
-80,
-118,
4,
79,
23,
49,
101,
-72,
-59,
104,
46,
-104,
49,
-128,
-23,
51,
-74,
-122,
-12,
79,
-103,
41,
118,
98,
16,
-111,
-17,
-112,
-104,
15,
126,
-99,
-90,
-46,
89,
3,
101,
-74,
29,
116,
80,
47,
-12,
-17,
76,
24,
104,
13,
-113,
-42,
-111,
15,
-4,
-104,
19,
-21,
-125,
32,
113,
-113,
-30,
92,
-25,
59,
-103,
-122,
-48
]
|
The opinion of the court was delivered by
Thiele, J.:
Plaintiff has Sled in this court his application for a writ of habeas corpus. He has also appealed .from a judgment of the district court of Leavenworth county denying his application in that court for a writ of like nature growing out of the same facts. •
In November, 1933, the petitioner was arrested by state author•ities in Tarrant county, Texas, and about March 18, 1934, was tried and sentenced to a term of nine years in the Texas penitentiary. Under some arrangement not clear from the record, he was tried in the United States district court of Texas on a charge of conspiracy to rob the United States mail; on April 4,1934, he was found guilty; on April 7, 1934, he was sentenced to a term of two years in the federal penitentiary at Leavenworth, and on May 9, 1934, he was removed from Texas to the federal penitentiary. Owing to certain credits given the petitioner, his time at the federal penitentiary expired October 15, 1935, and he would then have been at liberty, but he was apprehended by the sheriff of Leavenworth county and held under a warrant from the state of Texas charging a violation of the criminal laws of that state, and for an offense different from that on which he' was tried and convicted in the Texas state court in March, 1934. When extradition papers were presented to the governor, the petitioner was not represented, and the requisition of the state of Texas was honored. The petitioner then filed his application in the Leavenworth county district court, and a little later his original application in this court.
The petitioner’s contention is that having been surrendered by the Texas authorities to the United States, and having been tried in the United States district court and convicted, and having been taken from the state of Texas to the state of Kansas by federal officers against his will and without his consent, and not having been within the state of Texas since his release from the federal penitentiary, he is not a fugitive from justice and has a safe asylum in Kansas.
Although there are authorities to the contrary, the general rule is where one commits an offense in the demanding state and thereafter goes or is taken into another or asylum state, his motives in leaving or the reasons why he has left the demanding state are immaterial. (See 11 R. C. L. 731; 25 C. J. 258; 2 Moore on Extradition, p. 929, and Annotation in 13 A. L. R. 415.)
Interstate rendition of fugitives from justice is based upon the constitution of the United States (U. S. Const., art. 4, § 2, cl. 2) and the federal statutes (18 U. S. C. A. §§ 662, 663). The term “fugitive from justice” was defined by the supreme court of the United States in Roberts v. Reilly, 116 U. S. 80, 29 L. Ed. 544, 6 S. Ct. 291, in the following language:
“To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another.” (p. 97.)
And to the same effect, see Appleyard v. Massachusetts, 203 U. S. 222, 51 L. Ed. 161, 27 S. Ct. 122, 7 Ann. Cas. 1073.
Petitioner relies almost wholly on In re Whittington, 34 Cal. App. 344, 167 Pac. 404. There the petitioner was arrested in Texas for an offense committed there. While in custody, a requisition from the state of California was honored by the governor of Texas, and the petitioner was taken to California, where the charge against him was not pressed and was either dismissed or otherwise disposed of, whereupon the governor of Texas made requisition upon the governor of California to have the petitioner returned to Texas for trial on the original charge. The petitioner then sought his freedom under an application for writ of habeas corpus. In its opinion allowing the writ, that court said:
“We find no cause to dispute the proposition, as announced in the authorities cited by respondents, that where a person has committed a crime in one state, and is found in another state, he will be presumed to have fled from the jurisdiction of the first. But in this case the prisoner did not leave the state of Texas by any voluntary act of his own. He was taken out of the state against his will and under compulsory process, at a time when the state of Texas had him in custody with full right and power to prosecute him for the offense for which it now seeks to have him returned. Not only may it be said that he is not a fugitive because he did not voluntarily leave that state, but because also the state of Texas voluntarily relinquished the jurisdiction of its courts over his person and waived its right to thereafter have him brought back from the California jurisdiction to answer for the same offense. In an argumentative way the case of In re Hess (Hess v. Grimes), 5 Kan. App. 763, (48 Pac. 596), is authority for the conclusion last announced.” (p. 347.)
Even though the California court may have disposed correctly of the application, there is material difference in the facts. There the state of Texas, in effect, sent the prisoner out of the state, and then sought to return him for trial on the identical offense for which it first caused his arrest and commitment. The Kansas case cited in that opinion has little, if any, application to the case before us.
The Whittington case, although frequently cited, has rarely, if ever, been followed.
In People v. Mallon, 218 N. Y. S. 432, a prisoner in California was paroled from a state prison with directions to go to New York, where he was to be employed. He accepted the parole and went to New York. While in New York his parole was revoked, and it was sought to return him to California under extradition process. He sought his release on a writ of habeas corpus on the ground he was not a fugitive from justice. The court reviewed the authorities generally and discussed particularly the question of whether he could be a fugitive when he left the demanding state with its consent, citing many decisions holding that in similar circumstances the paroled prisoner was a fugitive. The court said:
“The only ease cited which holds differently from these cited hereinbefore is In re Whittington, 34 Cal. App. 344, 167 P. 404, which held the question of whether the accused had left the demanding state of his own volition, or under compulsion of legal process, could be inquired into. This holding is opposed to the uniform current of the decisions of the United States supreme court, which hold that there can be no inquiry into the motives which caused an alleged fugitive to depart from one state and take refuge in another; there is no discretion allowed, no inquiry into motives. Drew v. Thaw, 235 U. S. 432, 35 S. Ct. 137, 59 L. Ed. 302.” (p. 441.)
and directed the prisoner be delivered for extradition.
In People v. Meyering, 358 Ill. 442, 193 N. E. 475, it was held that one arrested in Illinois was not entitled to his discharge because not. a fugitive from Wisconsin, where, having committed a crime in Wisconsin, he was surrendered by the comity sheriff there to federal authorities, who took him to Illinois, then back to Wisconsin, then to Minnesota and then back to Illinois, it being said:
“It is not necessary that a person who has committed a crime against the laws of a state should leave that state to avoid prosecution, anticipated or begun, in order to be considered a fugitive from justice. In whatever manner or for whatever reason he may have gone into the asylum state he is regarded in law as a fugitive from the justice of the demanding state.” (p. 445.)
The petitioner also calls our attention to State, ex rel. Shapiro, v. Wall, 187 Minn. 246, 244 N. W. 811, 85 A. L. R. 114, where the relator was indicted in Illinois for an offense. He was then indicted by the federal court there, tried, convicted and sent to Leavenworth. .While there in prison, he was returned to Illinois and tried and convicted in the state court and returned to Leavenworth to complete his first sentence. Upon his discharge from the federal prison, he was arrested on an extradition warrant from Illinois. He then brought habeas corpus proceedings in the probate court of Leavenworth county, Kansas, and was discharged on the theory he was not a fugitive from justice. On appeal to the Leavenworth district court a like result was had. No appeal to the supreme court was taken. He then removed to Minnesota where he was arrested upon a rendition warrant and again sued out a writ of habeas corpus, urging that he was not a fugitive from justice and that the decision of the Kansas court was res judicata. The trial court held against the relator, who appealed to the supreme court, which, after reviewing authorities, said:
“It is true that these eases do not involve fugitives who have been forcibly taken from the jurisdiction of the demanding state, and that In re Whittington, 34 Cal. App. 344, 167 Pac. 404, holds that such a person is not a fugitive from justice; but we believe that the manner of leaving the demanding state is as immaterial as is the purpose of leaving, and that the framers of the constitution could not have intended to create a permanent asylum for a criminal if he was taken out of the demanding state by force and against his will. If his leaving the state under such circumstances that it would not ordinarily be called a flight makes no difference in the eyes of the supreme court, or if his lack of consciousness that he has committed an offense within the demanding state makes no difference, we cannot see that the manner of his leaving should be controlling in such a matter. He has left the jurisdiction of the demanding state and is found in the territory of another state whence he refuses to return to satisfy the charges made against him. We believe that this satisfies the definition of a fugitive from justice under the decisions of the supreme court and under our own decision. We think the manifest purpose of the constitutional provision and of the acts of congress in furtherance thereof is to effect the return of absentee criminals or those charged with crime, and that these provisions should receive a liberal construction to carry out that manifest purpose which, in our view, includes a design to prevent the frustration of criminal procedure by the departure of a-person in any manner from the jurisdiction where he is charged with crime.” (p. 249.)
and held:
“A prisoner who has been removed from the demanding state by federal authorities is nevertheless a fugitive from justice in an asylum state and must be delivered to the demanding state upon proper extradition process.” (Syl. ¶ 1.)
We are not disposed to follow the reasoning and holding of In re Whittington, supra. It is against the great weight of authority. In the case before us there is no showing as to the circumstances under which the United States was permitted to prosecute its action against the petitioner. After he was convicted and sentenced in that court, he was taken to the designated penitentiary at Leavenworth. It may be that it was against the petitioner’s wish, and it may also be that rather than serve a nine-year sentence in the Texas state penitentiary he preferred to serve a two-year sentence in the federal 'penitentiary at Leavenworth, hoping upon expiration of the two-year sentence to be free. There is no showing that petitioner was pardoned by the governor of Texas previous to his removal to Kansas by the federal authorities; it is claimed only that the mere fact he was tried in the federal court after being convicted in the state court amounted to a waiver to further prosecute him on a pending indictment in the state court of Texas. That result certainly does not follow, for had he been confined in Texas under the federal sentence, upon his release the state authorities could have held him for trial on the indictment on which he had not been tried. As we view the matter, to constitute petitioner a. fugitive from justice, it was not necessary to show he had voluntarily fled from the state of Texas to avoid prosecution on an outstanding indictment. Unless he was released from further prosecution by pardon of the governor of that state, or as a necessary consequence of some requirement of law, the cause of his leaving and the manner in which he left were immaterial, if in fact an offense had been committed within the demanding state and he kept himself out of that state. There is no showing that he ever was taken from the state of Texas under such circumstances that that state could not at an appropriate time demand his return.
The burden was on the petitioner to show his right to discharge from official custody, and in that he has failed.
The writ of habeas corpus applied for in this -court is denied. The action of the trial court in denying the writ applied for in the district court is affirmed. | [
-16,
-32,
-15,
63,
10,
-31,
58,
-100,
90,
-77,
103,
115,
-23,
-38,
0,
121,
91,
103,
85,
121,
-21,
-73,
118,
-47,
-14,
-13,
-55,
-43,
51,
93,
-2,
85,
8,
-16,
-118,
-13,
38,
72,
-93,
28,
-50,
5,
-87,
-45,
-40,
8,
52,
99,
78,
15,
113,
14,
-25,
106,
28,
-61,
-119,
44,
-37,
-83,
-112,
-39,
-49,
15,
-7,
6,
-93,
2,
-108,
39,
120,
46,
-104,
25,
-128,
-8,
89,
-74,
-122,
-11,
79,
-85,
36,
38,
98,
33,
93,
-17,
44,
-119,
47,
51,
-115,
-90,
-112,
80,
98,
100,
-106,
-35,
103,
-74,
7,
112,
-20,
4,
60,
108,
15,
-50,
-108,
-109,
77,
116,
-124,
27,
-61,
-75,
1,
112,
-115,
-74,
92,
119,
121,
-101,
-114,
-102
]
|
The opinion of the court was delivered by
Harvey, J.;
This was an action by the payee of a promissory note against two makers thereof. The petition contained the allegations usual in such an action. The defendant Wolf filed an answer and cross petition. The defendant Moritz filed a separate answer. No reply was filed. The trial court sustained plaintiff’s motion for judgment on the pleadings. The defendants have appealed.
It will be necessary to consider the answers separately. As to each the ruling was proper unless the answer disclosed a meritorious defense. (Nation v. Clay, 125 Kan. 735, 266 Pac. 45.) The answer of the defendant Wolf admitted the execution of the note, but alleged that it was without consideration and given for the accommodation of plaintiff, and alleged facts relating to the execution of the note in substance as follows: That on February 11, 1930, he sold to one Siegal a Ford automobile for $825; that Siegal did not have the money to pay for it, but offered as security certain jewelry; that he took Siegal to the bank and introduced him to its cashier; that Siegal negotiated with the bank for a loan of $825, to be paid in forty days, tendering the jewelry as security; that the bank took the jewelry as security, but asked Wolf to execute a note for the amount, which he did. There is no allegation that Siegal signed a note, nor that Wolf did not get from the bank the money represented by the note. Siegal paid nothing to the bank on the note. The jewelry which he left was later sold and the proceeds applied. Wolf renewed the note a number of times and made payments of interest and principal, reducing the debt to $527.60, being the amount of the note sued upon. By his cross petition he seeks to recover $568.22 paid by him on the note. It is obvious the statements in his answer that he executed the note without consideration and for the accommodation of the bank are negatived by the allegations of fact. He is the man who received the amount of the note in payment for the automobile, and the arrangement made was for his accommodation rather than that of the bank. It follows that his answer stated no meritorious defense.
The defendant Moritz alleged in substance that he had nothing to do with the transaction in its inception, nor with the first several renewals of the original note; that sometime after March 15, 1932, on which date the defendant Wolf had .executed and delivered to plaintiff his note for $517, due in six months, the plaintiff requested this defendant to sign the note, and stated as its reason therefor that it would look better for the bank examiner and would pass his inspection, and that it would be an. accommodation to plaintiff if this defendant would sign the note, and there would be no liability on the note so far as he was concerned, and upon these representations he signed the note; that he received no consideration for so doing; that the note was renewed several times, the note sued on being one of the renewals, and each renewal was signed by him at the request of the plaintiff and substantially upon the same representation as his first signature was obtained, and always after it had been signed by the principal maker, Wolf. The answer further adopts the answer of the defendant Wolf, and alleges because of the allegations therein Wolf is not liable. These last-stated allegations, of course, constitute no defense so far as the defendant Moritz is concerned. We do not see, however, that they hurt the other part of his answer, if it states a defense.
It is elemental that the accommodated party to a promissory note cannot recover from the party accommodating him. (Means v. Bank, 97 Kan. 748, 156 Pac. 701; Bank v. Watson, 99 Kan. 686, 163 Pac. 637; National Bank v. Williams, 117 Kan. 501, 232 Pac. 252; Hudson State Bank v. Richardson, 128 Kan. 238, 276 Pac. 815; Farmers State Bank v. Montgomery, 129 Kan. 203, 282 Pac. 741; Walker v. Reese, 131 Kan. 200, 289 Pac. 425; Lutz v. Peoples State Bank, 135 Kan. 115, 9 P. 2d 997.) The accommodating party is liable only to a holder for value. (R. S. 52-306; Security Nat’l Bank v. West, 120 Kan. 434, 243 Pac. 1014.)
The answer of the defendant Moritz, disregarding the allegation pertaining to Wolf’s answer, fairly raises the issue that he signed at the request of the plaintiff bank and for its accommodation. This defense may not be established by proof, but he is entitled to a trial of that issue if plaintiff denies it in a reply. A judgment against him on the pleadings was erroneous. The case presented by this answer is readily distinguished from State Bank v. Olson, 116 Kan. 320, 226 Pac. 995, cited and relied upon by appellee, and is also distinguished from Swan Savings Bank v. Snyder, 124 Kan. 827, 262 Pac. 547.
The judgment of the trial court is affirmed as to the defendant Wolf, and is reversed for further proceedings as to the defendantMoritz. | [
-16,
-4,
120,
-33,
10,
32,
42,
-102,
117,
-55,
55,
115,
-23,
-34,
-124,
125,
-9,
61,
81,
106,
-9,
-77,
23,
75,
-46,
-77,
-7,
-43,
-75,
-55,
-28,
21,
76,
-96,
-118,
-43,
103,
-118,
-63,
94,
76,
20,
58,
-64,
-7,
-64,
48,
19,
86,
73,
113,
-50,
-29,
36,
28,
73,
45,
44,
107,
57,
-16,
-80,
-69,
-113,
125,
20,
-110,
21,
-100,
69,
-40,
58,
-112,
51,
17,
-23,
58,
-74,
-122,
116,
111,
57,
8,
98,
98,
48,
113,
-51,
-72,
-120,
39,
-1,
-115,
-89,
112,
88,
2,
33,
-98,
-97,
126,
80,
39,
126,
-2,
29,
25,
-20,
11,
-113,
-10,
-126,
-65,
124,
30,
9,
-2,
-95,
33,
112,
-50,
80,
92,
103,
120,
-101,
-114,
-71
]
|
The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted by a jury of first-degree felony murder (K.S.A. 1992 Supp. 21-3401), aggravated kidnapping (K.S.A. 21-3421), and aggravated robbery (K.S.A. 21-3427). Defendant appeals, claiming: (1) improper admission of hearsay evidence; (2) improper admission of gruesome photographs; (3) insufficiency of the evidence; (4) failure to instruct on voluntary intoxication; (5) failure to disclose exculpatory evidence; (6) ineffective assistance of counsel; (7) double jeopardy; (8) failure to give an accomplice instruction; and (9) violation of the witness sequestration rule.
On March 5, 1993, Benjamin Creek’s body was discovered in rural Jefferson County, Kansas. There was a 12- to 15-foot piece of rope around his right wrist and a trail of a large amount of blood. Creek had been beaten extensively. There were numerous cuts made by a sharp object on both inner thighs and his neck. The thigh wounds were deep. There were no defensive wounds. Creek died due to blood loss at the location where his body was discovered. Pieces of an automobile window mount gun rack were collected at the scene.
The investigation of Creek’s death revealed that Creek, Bradley Johnson, and Frank Sutton (also known as “Spanky”) were all present at Sasnak North, a bar in Topeka, the night of March 4, 1993. Johnson, who is Caucasian, and Sutton, who is black, were together. They were short of money, and a bartender bought them two pitchers of beer. Creek was not observed with Johnson and Sutton inside the bar. During the evening Creek asked a Sasnak employee if she knew two men, one black and one white, who were in die bar. She did not. Creek informed her that the men stopped him from leaving the bar and that he had agreed to give the two men a ride.
Creek and his mother had a joint bank account for which Creek had an ATM card. Shortly after midnight two withdrawals totalling $90 were made using Creek’s ATM card. A third withdrawal of $50 was attempted but failed for insufficient funds. The next transaction at that ATM machine was by a Topeka police officer. While the officer was waiting to use the machine he observed a dark pickup with two occupants and a third person using the ATM machine. Sutton’s image appears on the ATM machine’s surveillance camera at the time the withdrawals from Creek’s account were made.
After Creek’s body was discovered officers went to a residence at 1006 S.E. 8th Street in Topeka where Johnson was staying. John McGill and Dan Deenihan, who lived at that house, informed the officers that Johnson was not at the house when they arrived home on the night of March 4 and 5. They stated that Johnson and Sutton later arrived at the house in a newer model Ford pickup with a white toolbox. Creek’s vehicle was a 1988 Ford pickup with a black bed liner and a white toolbox. McGill noticed that Sutton had blood on his pant leg and tennis shoe. Johnson and Sutton were carrying a shotgun and a hunting vest. Johnson and Sutton later unloaded a red toolbox, a hydraulic floor jack, some crowbars, some nylon tow ropes, and an electric saw from the pickup. They also observed Johnson bum an ATM card.
Officers were allowed to search the residence. Several items were seized, including a butterfly knife, pieces of a broken gun rack, a “for sale” sign with Creek’s mother’s telephone number on it, and a pair of black jeans with a 38-inch waist and 32-inch length. Johnson wore a size 38 or 40 waist pant. A duffel bag next to the jeans contained papers addressed to Johnson. McGill directed officers to a trash can which contained a piece of burned plastic that could have been the ATM card. Tire impressions in the driveway of 1006 S.E. 8th Street were similar to tire impressions where Creek’s body was discovered.
Randy Drown testified that he helped Johnson transport several items and that Drown sold items such as a saw, jumper cables, and tow rope straps. These items were recovered. Several of the items were similar to items belonging to Creek. Drown also testified that he was driving with Johnson and Sutton when Johnson pointed to a track at the Ripley Park Apartments and said that he and Sutton had acquired the track the night before.
On March 6 Creek’s pickup was found at the Ripley Park Apartments. A witness testified that two men, one Caucasian and one black, left the truck at that location. The exterior of the truck was covered with road dirt. The interior was wet underneath the floor mats, and there was standing water in two frisbees on the floor. Pieces of a broken gun rack were collected from the track. The pieces of a gun rack collected from the truck, the residence at 1006 S.E. 8th Street, and where Creek’s body was found fit together and formed a gun rack.
Johnson was riding with Drown when police stopped the car and arrested Johnson. A knife and sheath were taken from the car. Johnson admitted to the police that he had been to Sasnak’s on March 4. When shown Creek’s picture, Johnson denied that Creek was at Sasnak’s that night. Johnson also denied that he associated with black people or knew a black male named Frank. He then refused to answer any more questions without counsel.
Hair found on Creek’s hands and in Creek’s pickup was consistent with Johnson’s hair. Blood on the black jeans taken from the 8th Street residence was consistent with Creek’s blood and not with Sutton’s or Johnson’s blood.
Johnson and Sutton were charged in Creek’s death. Sutton was convicted of first-degree felony murder, aggravated kidnapping, and aggravated robbery in a separate trial. His conviction was affirmed by this court in State v. Sutton, 256 Kan. 913, 889 P.2d 755 (1995).
During Johnson’s trial, he presented the testimony of a frequent patron of Sasnak’s. The witness testified that he watched a black man and a white man playing pool on March 4. The witness did not see the white man after the last call for beer at 11:30 p.m., but the black man was still in the bar. Two more white men entered the bar, but the witness did not observe if they had spoken to the black man. The black man left around 11:55 p.m. The witness was unable to identify any of the men.
Johnson testified that he went to Sasnak’s on March 3, 1993, with Drown and Sutton. Drown had testified that Johnson mentioned finding a “mark” that evening. Johnson did not remember that conversation.. Johnson testified that on March 4 he and Sutton returned to Sasnak’s. He and Sutton consumed two pitchers of beer, which they paid for by pooling their money. Later that evening, Johnson testified, he realized that Sutton had left the bar. Johnson testified that he went to a friend’s house and slept until early afternoon on March 5, then returned to the house on 8th Street.
Johnson denied that the black jeans with blood on them were his and that he had pointed out a truck at the Ripley Park Apartments to Drown. Johnson asserted that he was not the white man who left the truck at the Ripley Park Apartments, that he was never in Creek’s truck, and that he had not sold any of Creek’s property with Drown. Johnson insisted that he was not involved in Creek’s homicide.
The jury convicted Johnson of first-degree felony murder, aggravated kidnapping, and aggravated robbery. Johnson was sentenced to consecutive terms of incarceration of life, life, and 15 years to fife. The sentences were tripled under the habitual criminal provisions of K.S.A. 1992 Supp. 21-4504. Johnson appeals.
HEARSAY STATEMENTS
The defendant first claims the trial court erred in permitting John McGill to testify about statements made by Frank Sutton, who did not testify.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him or her. This constitutional provision, however, does not preclude the admission of all out-of-court statements. In State v. Johnson-Howell, 255 Kan. 928, Syl. ¶ 3, 881 P.2d 1288 (1994), we noted that the courts should attempt to harmonize the goal of the Confrontation Clause — placing limits on the kind of evidence that may be received against a defendant — with a societal interest in accurate factfinding, an effort which may require consideration of out-of-court statements.
The events leading to the admission of Sutton’s statement commenced during defense counsel’s cross-examination of McGill. In an effort to suggest that McGill and Sutton had committed the crime, defendant’s counsel asked a series of questions implying that McGill had burned the ATM card, Drown had taken McGill to Sasnak’s after work on March 4, McGill was the man who left and waited outside Sasnak’s that night, McGill had helped Sutton rob Creek, and McGill had unloaded property from the truck. McGill testified that he had never been to Sasnak’s and that he was not involved in the crime.
To strengthen the inference that McGill was involved in Creek’s death, defendant’s counsel then asked McGill: “Now, isn’t it true, Mr. McGill, that there is records of phone calls between you and Frank after he was arrested?” and “Are you also aware that a note was found in the house signed Frank Sutton to John and Dan, something to the effect Don’t talk, I’ll call you or explain to you later, do you remember that note?” McGill admitted there were telephone calls and the existence of the noté. Defendant’s counsel elicited no further information about the details of the note or telephone conversations.
Before redirect examination of McGill, the prosecutor informed the judge that to rehabilitate the witness from the implication that McGill was a coconspirator, he would question McGill as to the content of the telephone conversation and the note. Defendant’s attorney responded that the details of the telephone conversation or the note had not been alluded to during his examination of the witness.
The court noted that normally any telephone calls, statements to police, or notes made by Frank Sutton would be inadmissible hearsay. It observed that the purpose of the defense line of questioning was to shift the focus from Johnson to McGill as the accomplice to the murder. The court found that because the defense had implied that McGill was involved in the crime with Sutton, it would make an exception to the hearsay rule prohibiting admission of the phone conversation statement and the note. The court concluded that failing to allow the State to rebut the innuendo advanced by the defendant would prejudice the State’s right to a fair trial.
McGill testified that the note defendant’s counsel brought up was a note from Sutton to Drown, not to McGill, which said, “Randy, tell everybody not to call my house. Will explain later . . . Spanky.” McGill also testified that he spoke to Sutton during a phone call initiated by Sutton’s wife and joined in by Sutton through three-way calling. McGill testified that Sutton informed him that he had been arrested because he was involved in a murder. Sutton denied he had committed the murder. When McGill asked Sutton if he knew Johnson had been arrested, Sutton replied that “Brad” was the person who got him involved in the murder.
The defendant argues that the trial court erred in permitting this testimony. He reasons that Sutton was not unavailable and that Sutton’s out-of-court statements did. not meet the necessary test of relevance, reliability, and trustworthiness to be admissible as declarations against interest under K.S.A. 60-460(j).
The trial court agreed that Sutton’s out-of-court statements were not admissible under a hearsay exception and, contrary to the defendant’s contention on appeal, did not admit the statements as a hearsay exception. The trial court admitted the statements because defense counsel had opened the door to the admission of otherwise inadmissible evidence during his cross-examination.
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. State v. Garcia, 233 Kan. 589, 601, 664 P.2d 1343 (1983); State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Roach, 223 Kan. 732, 737, 576 P.2d 1082 (1978); State v. Wasinger, 220 Kan. 599, 604, 556 P.2d 189 (1976). By opening the door to otherwise inadmissible hearsay, a defendant waives the Sixth Amendment right to confrontation.
State v. Martin, 241 Kan. 732, 740 P.2d 577 (1987), presented a somewhat similar factual situation. A neighbor of the victim’s wife gave a statement to police indicating that a friend told her he and the defendant had “done the thing” to the victim. The neighbor did not testify at trial. Her statement to' police was not admitted during the police officer’s testimony. During the defendant’s cross-examination of the police officer, the officer was asked whether the investigation had centered on any particular person after the neighbor’s statement. The officer’s response was that it focused on a particular person “[a]s soon as she told me the two names of the people that was involved in that homicide.” The defendant’s counsel’s next question was, “Okay, centered on the defendants in this case?” 241 Kan. at 739. On redirect examination of the officer, the State was permitted to introduce the neighbor’s statement. The trial court’s reasoning for allowing the statement was that the defendant had opened the door by discussing the contents of the statement during his cross-examination of the officer. The Martin court affirmed, noting that the defendant had opened up the issue through cross-examination of the officer. 241 Kan. at 739.
Here, defense counsel knew that the note did not implicate McGill and that Sutton had implicated the defendant, not McGill, in the telephone conversation. The defendant sought by cross-ex- animation of McGill to change the focus of the evidence and implied to the jury that McGill, not the defendant, was Sutton’s co-participant in the crime. Once the defendant addressed the telephone conversation and the note in this manner during cross-examination, the State was entitled to rehabilitate McGill by introducing details of the conversation and note. The trial court was correct in permitting McGill to testify as to the contents of the note and his telephone conversation with Sutton.
GRUESOME PHOTOGRAPHS
The defendant argues that the trial court erred in admitting multiple and repetitive gruesome photographs over his objection and in displaying slides of the photographs to the jury. He contends that the pictures were not necessary to corroborate the testimony of witnesses nor were they relevant to the pathologist’s testimony concerning the cause of death and that pictures of wounds which did not cause death were unnecessarily displayed to the jury.
The admission of relevant gruesome photographs in a homicide case is a matter that lies within the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. However, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. State v. Stone, 253 Kan. 105, 111, 853 P.2d 662 (1993); State v. Mayberry, 248 Kan. 369, Syl. ¶ 12, 807 P.2d 86 (1991).
Despite the similarity between many of the photographs taken at the scene, we cannot say that the trial court abused its discretion in admitting the photographs into evidence. Each photograph depicts Creek’s body from a slightly different angle. The photographs show a beaten and cut-up body, the condition of Creek’s body when it was found. The pictures may be gruesome and shocking, but they depict what occurred. The trial court did not abuse its discretion in admitting into evidence the photographs taken at the scene.
The defendant also objects on appeal to several photographs taken during the autopsy. The defendant did not object at trial to these photographs. A defendant cannot raise for the first time on appeal points which were not presented to the trial court. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993). Therefore, the defendant cannot now complain that the admission of these photographs was error.
Most, if not all, of the photographs of the scene and the autopsy were shown to the jury by slides on a projector. The defendant argues that the trial court failed to view the slides prior to their introduction to determine their admissibility. As authority, the defendant cites State v. Yarrington, 238 Kan. 141, Syl. ¶ 2, 708 P.2d 524 (1985), where this court stated that when pictures are to be offered in evidence through the utilization of slides and a projector, the court should view the slides, outside the presence of the jury, in order to avoid showing to the jury what may be determined to be inadmissible evidence.
The defendant made no objection to the use of slides at trial and he cannot now complain that the use of slides was error. In any event, the trial court had no need to view the slides before their introduction here because it had already observed and determined the admissibility of the photographs depicted in the slides. There was no error in introducing the photographs to the jury through the use of slides and a projector.
SUFFICIENCY OF THE EVIDENCE
For his next issue, the defendant contends that the evidence was insufficient to sustain his convictions.
When the sufficiency of the evidence is challenged on appeal, this court’s standard of review is whether, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994). In reviewing the sufficiency of the evidence this court will not reweigh the evidence. It is the jury’s function, not ours, to weigh the evidence and determine the credibility of witnesses. State v. Wimberly, 246 Kan. 200, 207, 787 P.2d 729 (1990).
The defendant construes the evidence in the light most favorable to him, but an appellate court must view the evidence in the light most favorable to the State. We have reviewed all the evidence and conclude that the evidence is sufficient to uphold the defendant’s convictions. A rational factfinder could have found the defendant guilty of the offenses beyond a reasonable doubt.
In addition, the defendant questions whether venue was proper in Jefferson County. The defendant asserts there was no showing that a kidnapping occurred in Jefferson County because there is no evidence Creek was tied up in Jefferson County. He also contends that there is no showing an aggravated robbery occurred in Jefferson County because money was found on Creek’s person, the ATM machine was located in Topeka, and Creek’s property was disposed of in Topeka, not Jefferson County. The defendant’s argument concerning venue is without merit.
Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed. K.S.A. 22-2602. Where two or more acts are requisite to the commission of any crime and such acts occur in different counties, the prosecution may be in any county in which any of such acts occur. K.S.A. 22-2603.
Aggravated kidnapping, a class A felony, is the taking or confining of a person, accomplished by force, threat or deception, with the intent to hold the person to facilitate the commission of any crime, and where bodily harm is inflicted upon the person. K.S.A. 21-3421. A person charged with the crime of kidnapping may be prosecuted in any county in which the victim has been transported or confined during the course of the crime. K.S.A. 22-2614. Aggravated robbery, a class B felony, is the taking of property from the person or presence of another by threat of bodily harm by a person who is armed with a dangerous weapon or who inflicts bodily harm on the person during the course of the robbery. K.S.A. 21-3427. When property taken in one county by theft or robbery has been brought into another county, venue is in either county. K.S.A. 22-2609. Murder in the first degree, a class A felony, in- eludes the killing of a person in the perpetration of or attempt to perpetrate any felony. K.S.A. 1992 Supp. 21-3401(a)(1) and (c). If the cause of death is inflicted in one county and the death ensues in another county, the prosecution may be in either of such counties. Death shall be presumed to have occurred in the county where the body of the victim is found. K.S.A. 22-2611. Venue was proper in Jefferson County in this case.
INSTRUCTION ON VOLUNTARY INTOXICATION
K.S.A. 21-3208(2) provides that “[a]n act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” A defendant may rely on the defense of voluntary intoxication where the crime charged requires specific intent, and an instruction on voluntary intoxication is required if there is evidence to support the defense. State v. Gadelkarim, 247 Kan. 505, Syl. ¶ 1, 802 P.2d 507 (1990).
Here, an aiding and abetting instruction was given to the jury. Aiding and abetting is a specific intent crime. See K.S.A. 1992 Supp. 21-3205; State v. Warren, 252 Kan. 169, Syl. ¶ 6, 843 P.2d 224 (1992); State v. McDaniel, 228 Kan. 172, Syl. ¶ 4, 612 P.2d 1231 (1980). The defendant reasons that voluntary intoxication was a viable defense because he could have been convicted as an aider and abettor. He claims that because a specific intent was required to aid and abet, the trial court should have instructed the jury on the defense of voluntary intoxication.
The defendant did not request an instruction on voluntary intoxication. Because of the defendant’s failure to object at trial, our standard of review is whether the failure to instruct on the defense of voluntary intoxication was clearly erroneous. See State v. Whitaker, 255 Kan. 118, 125, 872 P.2d 278 (1994).
Unless evidence is presented that shows intoxication to the extent that a defendant’s ability to form the requisite intent was impaired, an instruction on the defense of voluntary intoxication is not required. Gadelkarim, 247 Kan. at 508; see State v. Smith, 254 Kan. 144, Syl. ¶ 2, 864 P.2d 709 (1993); State v. Shehan, 242 Kan. 127, Syl. ¶ 5, 744 P.2d 824 (1987). The defendant has the burden of showing that he or she was so intoxicated that his or her mental faculties were impaired by the consumption of alcohol or drugs. State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985).
The defendant reasons that there was sufficient evidence to justify a voluntary intoxication instruction. The defendant and another witness testified that the defendant shared two pitchers of beer with Sutton at Sasnak’s. The only other testimony as to intoxication was the testimony of a Sasnak employee who stated that Johnson and Sutton were “drunk.”
Although there was evidence, presented by both the State and the defense, that the defendant had consumed alcohol, and even by one witness that he was “drunk,” the record is devoid of evidence that the defendant’s consumption of alcohol impaired his mental faculties so as to render him unable to form the requisite intent. The defendant was able to recall his activities on the night of the offense. See State v. Ludlow, 256 Kan. 139, 147-48, 883 P.2d 1144 (1994); Smith, 254 Kan. at 152; State v. Gonzales, 253 Kan. 22, 26, 853 P.2d 644 (1993); Shehan, 242 Kan. at 131-32; Keeler, 238 Kan. at 360; cf. Gadelkarim, 247 Kan. 509. An instruction on voluntary intoxication was not required.
WITHHOLDING EXCULPATORY EVIDENCE
The defendant contends that the State failed to disclose exculpatory evidence.
Prosecutors have an affirmative duty, independent of any court order, to disclose exculpatory evidence to a defendant. To justify reversing a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. Evidence not disclosed to the defendant prior to trial is not inadmissible at trial if the defendant has personal knowledge thereof or if the facts become available to the defendant during trial and the defendant is not prejudiced in defending against them. State v. Colbert, 257 Kan. 896, 902, 896 P.2d 1089 (1995); State v. Peckham, 255 Kan. 310, 341, 875 P.2d 257 (1994).
The defendant provides two cites to the record to indicate that evidence was withheld from him. The first cite involves the cross-examination of Dr. Tosco, who testified about collecting hair and blood samples from the defendant and Frank Sutton. The defendant’s counsel cross-examined Tosco about the procedure she used to obtain the hair and blood samples. Counsel then stated to the court, “Sorry, Judge, this is my first chance to look at these. I will be real careful to keep them on one side or the other.” The second cite concerns the testimony of Dawna Don Carlos, who testified about collecting hair and debris from paper bags which were placed over Creek’s hands at the scene. The defense cross-examined the witness about what kind of debris and how many hairs were collected from the bags. When the witness referred to her notes, the defendant’s counsel stated, “Could I take a peek at those notes because I don’t think I have ever had a chance to look at those.”
On appeal, the defendant claims that evidence was not made available to him until trial. The defendant suggests that had he received reports of the blood tests prior to the hearing, his trial strategy would have differed. He reasons that not having these reports ahead of the hearing impaired his ability to examine each of the witnesses testifying regarding this evidence and that his defense was prejudiced by the delayed disclosure of evidence.
The testimony of both witnesses concerned the collection of blood, hair, and debris samples, not the tests conducted with the blood or hair. The defendant provides no details about what “reports” were not made available to him before trial. The defendant has not shown what, if any, evidence was withheld by the State, nor has he shown that the evidence was clearly exculpatory. Under these circumstances, the defendant is not entitled to reversal of a conviction based on the State’s failure to disclose unspecified reports.
The defendant also states, “[Tjestimony from Sutton regarding the Defendant’s intoxication was not disclosed to this jury although statements of an incriminating nature were disclosed.” The defendant did not attempt to have any statements of Sutton concerning the defendant’s intoxication admitted into evidence. Defendant provides no cite to the record where such testimony was excluded. Additionally, there is no record that Sutton in fact made any statement concerning the defendant’s intoxication. The record on appeal does not show that this information was withheld or suppressed by the prosecution; indeed, it does not show that such evidence even exists. The defendant is not entitled to reversal of his convictions based on evidence of his intoxication allegedly withheld by the prosecution and excluded at trial where there is no cite to the record showing exclusion of such evidence.
Finally, the defendant argues that the State failed to disclose evidence of $30 found in Creek’s sock during the autopsy. The defendant again fails to cite to the record concerning this evidence. Without providing a record, the defendant argues that the $30 may have been some of the money withdrawn from Creek’s account through the ATM machine. From this, he concludes that there may have been no robbery at all. Defendant’s argument ignores that items taken from Creek included his truck and other belongings in addition to the money from his bank account. It also ignores that $90, not $30, was withdrawn from Creek’s bank account. Evidence of $30 found in Creek’s sock is not clearly exculpatory. The defendant is not entitled to reversal of his convictions based on the State’s alleged failure to disclose the $30 found in Creek’s sock during the autopsy.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant asserts that he had ineffective assistance of counsel at trial. The issue of ineffective assistance of counsel is raised for the first time on appeal.
An allegation of ineffective assistance of counsel will not be considered for the first time on appeal. The principal problem facing an appellate court reviewing a claim of ineffective assistance of counsel raised for the first time on appeal is that the trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than an appellate court is in reviewing the issue from a cold record. Many times what would appear in the record as indicative of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue, and our refusal to consider the matter for the first time on appeal is sound. State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986).
The Van Cleave court recognized two remedies where an ineffective assistance of counsel claim arises for the first time on appeal. One remedy is via K.S.A. 60-1507. The other option, where new counsel enters the case after the appeal is filed, is for the defendant to seek a remand from the appellate court to the trial court for determination of that issue. Van Cleave, 239 Kan. at 119-20.
The defendant did not seek a remand to the trial court, which had observed trial counsel’s actions, to determine the ineffective assistance of trial counsel issue. There is also no evidence that defendant’s appellate counsel conducted an independent inquiiy or investigation other than to read the cold record and determine that he would have handled the trial differently. The defendant has not properly perfected an appeal on this issue.
In any event, much of appellate counsel’s complaints of trial counsel’s assistance concern points which were not disputed at trial. The theory of defense at trial was that the defendant was improperly identified as being involved in the crimes with Frank Sutton; rather, according to the theory of defense, another individual was involved, such as John McGill, Dan Deenihan, or Randy Drown. The defendant’s trial counsel appears to have done an adequate job of casting suspicion on others. A cold reading of the record does not overcome the presumption that trial counsel met an objective standard of reasonableness, nor does it reveal a reasonable probability that the outcome of the trial would have been different. The defendant has not shown that his trial counsel’s conduct was deficient and that he was prejudiced by this deficiency.
DOUBLE JEOPARDY
The defendant next contends that his sentences for both felony murder and the underlying felonies are multiple punishments for the same offense and therefore violate his constitutional protection against double jeopardy.
This same argument was decided adversely to the defendant’s position in the appeal of his codefendant, Frank Sutton, where this court held that “[a] defendant’s convictions and subsequent imposition of consecutive sentences for felony murder and the underlying felonies of aggravated kidnapping and aggravated robbery do not violate the prohibition against double jeopardy.” Sutton, 256 Kan. 913, Syl. ¶ 1; see State v. Gonzales, 245 Kan. 691, 707, 783 P.2d 1239 (1989); State v. Dunn, 243 Kan. 414, 432-33, 758 P.2d 718 (1988). The defendant makes no arguments not considered and rejected by this court in Sutton, Gonzales, and Dunn, and his claim is without merit.
FAILURE TO GIVE AN ACCOMPLICE INSTRUCTION
The defendant argues that the trial court should have given the jury an instruction on accomplice testimony. Because the defendant did not request such an instruction, our standard of review is whether the failure to give the instruction was clearly erroneous. See Whitaker, 255 Kan. at 125.
The defendant acknowledges this court’s standard of review but asserts that an accomplice instruction is proper in all circumstances where an accomplice testifies or an accomplice’s statement is admitted into evidence. He asserts that the instruction was necessary because the evidence that convicted him was all circumstantial and there were no witnesses to the crime. Therefore, the defendant argues, there was a real possibility the jury would have reached a different verdict if it had been given an instruction on accomplice testimony.
The State points out that Sutton did not testify at the defendant’s trial. The State asserts the rationale for giving an accomplice instruction is that an accomplice witness, when testifying as a witness for the prosecution, will diminish his or her own culpability and shift responsibility for the crimes to the defendant. The State concludes that when the accomplice does not testify in court and the accomplice’s out-of-court statements are admitted because the defendant’s cross-examination opened the door to the admission of that evidence, the rationale for giving an accomplice instruction is not satisfied. We agree. Under the circumstances of this case, although Sutton’s out-of-court statements were admitted, giving an accomplice instruction was not required.
VIOLATION OF THE WITNESS SEQUESTRATION RULE
Defendant contends that contact between a witness and the KBI was a violation of the witness sequestration order and warranted a mistrial. The trial court may order a mistrial if such is necessary because “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(1)(c). The granting of a mistrial is a matter which lies within the sound discretion of the trial court, and the trial court’s determination will not be disturbed absent an abuse of that discretion. State v. Cahill, 252 Kan. 309, 314, 845 P.2d 624 (1993).
John McGill testified that he and Dan Deenihan were working at LaSiesta Foods on the night of March 4. McGill stated that he got off work in the early morning hours of March 5, around 2:15. On cross-examination, McGill was confronted with a time sheet showing that he clocked out at 10:48 p.m. on March 4. Following McGill’s testimony, Dan Deenihan testified that he got off work between 10:00 and 11:00 p.m. on March 4 even though he usually got off work between 2:00 and 3:00 a.m. He admitted that he previously told investigators that he got off work around 2:00 a.m. on the 5th. Deenihan testified that he was told by a KBI agent the morning before he was to testify that his work records showed he got off work earlier than he had initially thought. The defendant moved for a mistrial, arguing that because the KBI spoke with Deenihan before his testimony, there was a violation of the witness sequestration order.
When requested by a defendant, K.S.A. 22-2903 requires the sequestration of witnesses during preliminary hearings. At trial, sequestration is not a right but rests within the sound discretion of the trial court. In the absence of any showing of prejudice to the defendant, the trial court’s decision will not be reversed on appeal. State v. Dunn, 243 Kan. 414, 428, 758 P.2d 718 (1988). In addition, a violation of a court order sequestering witnesses does not automatically disqualify a witness from testifying in the absence of any showing of prejudice to the defendant, and the trial court may in its discretion permit the witness to testify despite the violation. See State v. Ransom, 239 Kan. 594, 600, 722 P.2d 540 (1986); State v. Cantrell, 234 Kan. 426, Syl. ¶ 3, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817 (1984).
The State asserted that the KBI was investigating as to when Deenihan and McGill got off work at the prosecution’s request. The State reasoned that there can be no bad faith when investigations continue during the trial because new issues arise. The trial court noted that the sequestration rule is intended to keep witnesses from discussing their testimony with each other, not to prevent counsel or investigative authorities from continuing their investigation. The court found that there was no violation of the sequestration rule and denied the motion for mistrial.
We agree that there was no violation of the sequestration rule. Both parties must be permitted to continue investigating their cases throughout the trial. The State informed the trial court and the defendant early on during trial that it was continuing to investigate at LaSiesta Foods in anticipation of rebuttal evidence. This was not a case of two witnesses discussing their testimony. The KBI investigator spoke with a witness as to conflicting evidence at the request of the prosecution. The defendant has not shown that there was a violation of a sequestration order or that he was prejudiced by Deenihan’s testimony. The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial.
Affirmed. | [
48,
-22,
-55,
-65,
57,
-32,
42,
56,
27,
-93,
-12,
115,
-119,
-55,
1,
107,
-58,
93,
85,
121,
-26,
-73,
15,
105,
-30,
-13,
-71,
-60,
-14,
74,
-12,
-43,
9,
48,
78,
85,
102,
74,
-13,
-36,
-114,
4,
-103,
112,
-46,
0,
48,
111,
118,
6,
49,
13,
-78,
43,
22,
-22,
73,
44,
91,
-83,
80,
-80,
-53,
-123,
-100,
16,
-125,
-90,
-100,
6,
80,
63,
-104,
49,
8,
104,
-13,
38,
-122,
116,
77,
-115,
-59,
102,
99,
32,
24,
-49,
37,
-127,
-81,
126,
-99,
-89,
-100,
72,
65,
41,
-108,
-35,
126,
54,
14,
-12,
-1,
29,
89,
124,
-124,
-34,
-80,
-109,
-115,
52,
-122,
-5,
-5,
39,
32,
117,
-51,
-30,
78,
85,
112,
19,
-113,
-12
]
|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Kenneth P. Seck, of Overland Park, an attorney admitted to the practice of law in Kansas. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared pro se and the Disciplinary Administrator appeared by and through Marty M. Snyder, Deputy Disciplinary Administrator. The respondent’s motion for continuance and his objection to the makeup of the panel were denied. After the hearing, the panel concluded that the following findings of fact were established by clear and convincing evidence:
“1. Respondent is an attorney at law; his Kansas Attorney Registration number is 6974, and his last registration address for the Clerk of the Appellate Courts of Kansas is: 8600 W. 95th Street, Suite 104, Overland Park, Kansas 66212.
“2. Respondent has engaged in the active practice of law in Kansas and Missouri for 25 years. His practice was initially concentrated in the domestic relations and divorce area, but in the last 6 to 8 years has been concentrated in the areas of workers’ compensation and personal injury.
“3. Respondent’s client, Ms. Hager-Early, was injured in an accident on January 12, 1990, and employed Respondent to represent her in filing a lawsuit. A contingent fee based upon the amount of the recovery was agreed upon but never put into writing. The lawsuit was filed January 10, 1992, by Respondent.
“4. Ms. Hager-Early’s insurance company sent Respondent a standard letter notifying him of the insurance company’s personal injury protection (PIP) hen. Some 10 months later the lawsuit was settled for $25,000, which included the PIP hen, plus $1,700 for property damages.
“5. Respondent attempted to negotiate with his chent’s insurance company concerning repayment of the PIP hen in the amount of $3,489.36, from the proceeds of settlement; the insurance company refused to negotiate, and insisted upon being paid the amount of its PIP hen.
“6. Upon settlement of the case, Respondent received three checks, including a check for $3,489.36 made payable jointly to his chent, her insurance company, and Respondent.
“7. On March 3 Respondent had the representative for his chent’s insurance company endorse the PIP hen check. Respondent deposited the check into his trust account and withdrew the amount of his contingency fee, leaving a net deposit of $2,326.24. Respondent wrote a letter to die insurance company advising that he would remit the amount of the PIP hen forthwith to his chent’s insurance company.
“8. Despite the assurances to his chent and her insurance company, Respondent failed to remit the amount of the PIP hen to the insurance company and failed to respond to telephone calls and letters from the insurance company. Respondent failed to notify his chent that he took this action.
“9. The amount of die PIP hen proceeds due to his chent’s insurance company, $2,326.24, initially remained in respondent’s trust account; however, respondent withdrew portions of this amount from his trust account and spent it personally. Respondent admitted that he knew that no portion of die PIP hen proceeds could possibly have been payable to him since he had previously withheld from the deposit the amount of his contingent fee for collecting the PIP proceeds. Respondent knew that the full amount of such PIP hen proceeds were payable and belonged to either his chent or her insurance company. As the result of having ignored the telephone calls and letters from his chent’s insurance company, the insurance company retained the service of a law firm which wrote to the Respondent and made demand on him for the amount of the PIP hen. Respondent neglected to respond to this demand letter for several months, with the result that he and his chent had suit filed against them by his chent’s insurance company.
“10. Respondent met with his chent and advised her that he would take care of the lawsuit and then filed an answer with multiple counterclaims against the insurance company. Respondent did not consult with his chent before filing the answer or before filing the counterclaims and did not furnish his chent with copies of the answer and counterclaims or the subsequently amended answer and counterclaims until several months after having filed them.
“11. When his chent obtained new counsel the lawsuit was finally settled. Respondent paid his chent’s insurance company $2,326.24 to satisfy its PIP hen and paid $1,163.12 to his chent to compensate for the added attorney’s fees and inconvenience caused by his actions.
“12. Respondent admitted that he had handled only one previous case involving a PIP hen and that he was unfamiliar with how to handle a PIP hen claim.”
Based upon the above findings, the panel concluded:
“Respondent undertook to handle a matter for which he was not competent, he made false statements to his client’s insurance company, and he failed to keep his chent advised of the developments in the matter he was handling. He was not diligent in -responding to the inquiries of his chent’s insurance company, he filed an answer and counterclaims in a lawsuit without consulting his chent and without revealing to her that he and the chent had both been named in the lawsuit, creating a conflict of interest in the representation, and he knowingly withdrew funds from his trust account for his personal use knowing that tire funds belonged to others. Respondent failed to reduce to writing his contingent fee agreement with his chent.”
The panel concluded that clear and convincing evidence established that the respondent violated the following provisions of the Model Rules of Professional Conduct: MRPC 1.1 (1994 Kan. Ct. R. Annot. 292), MRPC 1.2(a) (1994 Kan. Ct. R. Annot. 295), MRPC 1.3 (1994 Kan. Ct. R. Annot. 297), MRPC 1.4 (1994 Kan. Ct. R. Annot. 302), MRPC 1.5(d) (1994 Kan. Ct. R. Annot. 306), MRPC 1.15 (1994 Kan. Ct. R. Annot. 332), MRPC 3.7 (1994 Kan. Ct. R. Annot. 357), MRPC 4.1 (1994 Kan. Ct. R. Annot. 360), and MRPC 8.4(c), (d), and (g) (1994 Kan. Ct. R. Annot. 379).
The panel found the following aggravating and mitigating circumstances.
Aggravating circumstances:
“1. Prior disciplinary offenses. Respondent has received two previous informal admonitions and two previous orders of pubhc censure.
“2. Dishonest or selfish motive. The amount of the PIP hen proceeds withdrawn from the trust account were knowingly withdrawn for the benefit of Respondent at a time when he knew that no portion of the PIP hen proceeds belonged to him.
“3. Pattern of Misconduct. The writing of the false letter to the insurance company advising that the PIP hen proceeds would be forthcoming, the failure to communicate with his chent about the disposition of the PIP hen proceeds, the failure to respond to the insurance company’s repeated attempts to get in touch with Respondent, the filing of an Answer and Counterclaims without consulting his chent, and the withdrawal of the PIP hen proceeds from the trust account for Respondent’s personal use show a pattern of misconduct.
“4. Multiple Offenses. Multiple offenses and violations of the Model Rules of Professional Conduct occurred.
“5. Refusal to Acknowledge Wrongful Nature of Conduct. While Respondent admitted that he might have handled some aspects of the representation of his chent in a different fashion, he did not admit mishandling of the PIP hen proceeds by failing to remit promptly to the insurance company, and he did not admit and declined to explain his wrongful withdrawal of the PIP hen proceeds from his trust account.
“6. Vulnerability of Victim. Respondent’s client was an individual who had sustained permanent injuries and was not skilled or experienced in business matterfs] or in the handling of litigation.
“7. Substantial Experience in the Practice of Law. Respondent has been a lawyer for 25 years and by his own admission has handled these kinds of cases for the last six to eight years.”
Mitigating circumstances:
“The panel heard Respondent’s arguments in mitigation and found that there were no. mitigating circumstances or factors, except that respondent has fully repaid the PIP lien and has fully reimbursed his client for her attorneys’ fees.”
The hearing panel recommended that the respondent be suspended from the practice of law for a period of 2 years. The panel also recommended that the respondent be required to satisfy several conditions relating to his competence to practice law prior to reinstatement.
In his brief and during oral argument, the respondent took issue with several of the actions of the hearing panel. The respondent argued that several of the findings of fact made by the hearing panel were not supported by, or were against, the clear weight of the evidence. However, a review of the record convinces us that the hearing panel’s findings of fact were supported by the evidence and that the evidence is sufficient to establish the violations found by the hearing panel. We adopt the findings and conclusions of the panel and conclude that the findings are established by clear and convincing evidence.
The respondent further argued that the hearing panel was prejudiced against the respondent because the panel was made up of the same persons who had heard a previous disciplinary matter concerning the respondent. We note that the respondent first presented this argument to the disciplinary panel for the first time on the date of hearing. Under the Board for Discipline of Attorneys Procedural Rule D.1 (1994 Kan. Ct. R. Annot. 233), objections to the composition of the hearing panel must be made by a motion in writing at least 10 days before the hearing. This the respondent failed to do, although he was notified of the composition of the hearing panel 3 months prior to the hearing.
Moreover, we know of no rule or statute that would prohibit a panel which has previously recommended imposition of disciplinary sanctions on an attorney from hearing a subsequent disciplinary action involving the same attorney, absent evidence of a clear and convincing nature presented by the respondent establishing bias or prejudice on the part of the panel. In his oral motion before the panel, the respondent alleged no facts and presented no arguments supporting bias or prejudice on the part of the panel.
Finally, the respondent argued that the panel violated his substantial rights in denying his motions for continuance. The record indicates that the respondent made his first request for a continuance 2 days before the scheduled hearing date. It was denied the next day, and the respondent made another motion for continuance on the day of the hearing. We have reviewed the record and determined that the panel did not abuse its discretion in denying the respondent’s motions.
We have considered the respondent’s past record and the evidence presented in this case. While we agree that the respondent should be suspended from the practice of law, we conclude that 2 years’ suspension is not appropriate under the circumstances. We are convinced that the respondent should be indefinitely suspended from the practice of law in this state.
IT is Therefore Ordered that Kenneth P. Seek be and he is hereby indefinitely suspended from the practice of law in the State of Kansas commencing on the date of this opinion.
It is Further Ordered that the respondent shall forthwith comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217) and pay the costs of this action and that this order be published in the official Kansas Reports. | [
-80,
-19,
-23,
-17,
-120,
-32,
58,
26,
125,
-125,
101,
83,
-19,
-18,
-123,
127,
-10,
45,
-63,
107,
-41,
-77,
119,
64,
-26,
-5,
-71,
77,
-69,
95,
-11,
-43,
73,
48,
-62,
-43,
6,
74,
-63,
28,
-114,
6,
-117,
-16,
89,
-64,
-80,
121,
18,
3,
49,
-97,
-93,
40,
29,
107,
45,
44,
122,
-19,
-112,
-79,
-41,
5,
127,
18,
-94,
4,
28,
15,
80,
47,
-104,
-71,
32,
-87,
115,
-74,
-122,
116,
39,
-119,
4,
102,
98,
50,
16,
-95,
124,
-100,
14,
61,
13,
-122,
-103,
80,
75,
11,
-74,
-101,
117,
22,
39,
120,
-4,
13,
11,
108,
15,
-113,
-44,
-111,
95,
100,
-100,
-117,
-17,
-123,
52,
81,
-117,
-30,
92,
-41,
122,
-45,
-65,
-78
]
|
Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator s office against Martin D. Geeding, of Wichita, an attorney admitted to the practice of law in Kansas.
The amended formal complaint filed against respondent consisted of three counts and alleged violations of MRPC 1.1 (1994 Kan. Ct. R. Annot. 292), MRPC 1.2 (1994 Kan. Ct. R. Annot. 295), MRPC 1.3 (1994 Kan. Ct. R. Annot. 297), MRPC 1.4 (1994 Kan. Ct. R. Annot. 302), MRPC 1.5 (1994 Kan. Ct. R. Annot. 306), MRPC 3.2 (1994 Kan. Ct. R. Annot. 347), MRPC 8.4 (1994 Kan. Ct. R. Annot. 379), and Supreme Court Rule 207 (1994 Kan. Ct. R. Annot. 199). Respondent filed an answer admitting and denying allegations contained in the formal complaint and denying that he violated the Model Rules of Professional Conduct.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on August 17, 1994. Deputy Disciplinary Administrator Marty M. Snyder appeared in person, and respondent appeared in person and by his attorney, D. Lee McMaster. The panel made the following findings of fact:
Count I — Sumner Complaint, No. B5709
“2. In 1991, respondent was employed by Douglas Sumner to file suit against Law Office of Jerry L. Berg, P.A., and on April 15, 1991, respondent caused a petition entitled Douglas M. Sumner d/b/a Phoenix Computer Services v. Law Office of Jerry L. Berg, P.A., Case No. 91 C 1163 to be filed in the District Court of Sedgwick County, Kansas.
“3. Trial was set for December 5,1991, at which time the matter was voluntarily dismissed without prejudice by respondent for the reason that he was not prepared for trial and the court would not grant a continuance, all without prior notice to Mr. Sumner. Respondent had knowledge that a continuance would not be granted following a pretrial hearing two weeks earlier.
“4. The case was refiled on or about March 3, 1992, with an added claim for replevin, under Case No. 92 C 610. Trial was set for December 14, 1992, with unproductive settlement negotiations continuing.
"5. Respondent was not prepared for trial and obtained a dismissal without prejudice by means of a joint motion joined in by opposing counsel. Such dismissal was obtained without the knowledge of Mr. Sumner and contrary to his written instruction.
“6. On December 15,1992, Mr. Sumner, pro se, filed ‘Plaintiff’s Objection to Journal Entry of Dismissal Without Prejudice and Plaintiff’s Motion to Set Aside Journal Entry of Dismissal Without Prejudice,’ which matter was set for hearing on March 26, 1993. Mr. Sumner requested that respondent attend such hearing but respondent failed to do so. The motions were denied.
“7. On approximately January 19,1993, respondent filed the Sumner action for the third time, as Case No. 93 C 109. Trial was ultimately scheduled for September 14, 1993, at which time the defendant successfully obtained dismissal with prejudice pursuant to K.S.A. 60-241(a)(1). (Two dismissal rule.’) Respondent appealed from said order of dismissal, which appeal was pending before the Kansas Court of Appeals at time of hearing. The hearing panel notes the February 24, 1995, decision of the appellate court which reversed the district court and found that the ‘two dismissal rule’ was not applicable in the Sumner case.
“8. Throughout the Sumner representation the respondent failed to return a number of the client’s telephone calls or to respond to a number of letters and messages from the client.”
Count II — Pomerantz Complaint, No. B5850
“1. In October 1991, respondent undertook to represent Consolidated Service Corporation in a subrogation claim involving recovery of property damage arising out of a vehicular collision. Respondent filed a petition in February 1992.
“2. In addition to numerous telephone requests, the client requested, in writing, status reports on March 31, 1992, May 4, 1992, June 15, 1992, July 22, 1992, September 17, 1992, and December 11, 1992. Respondent’s only response was dated December 14, 1992, which was close in time to notice from the court that the case was subject to dismissal for lack of prosecution.
“3. A discovery conference was held in March 1993, which respondent attended by telephone. A pretrial conference was set for July 1993, which respondent attended by telephone. The telephone connection was initiated by the court after respondent failed to appear in person or by telephone at the appointed hour. Respondent did not present a pretrial questionnaire, was not prepared for trial and requested dismissal with prejudice, which dismissal was granted.
“4. Respondent had not advised the client of his intention to dismiss with prejudice; naturally did not have the consent of the client to dismiss with prejudice; and failed to timely notify the client of the entry of dismissal with prejudice.
“5. Respondent’s services were terminated by the client in November 1993. The client did not learn of the earlier dismissal with prejudice until a newly employed attorney checked the court files and consulted with opposing counsel.
“6. Respondent has not returned a retainer payment or file materials to the client.”
Count III — Stevenson Complaint, No. B5831
“1. In July 1993, respondent undertook the representation of Dana Stevenson in connection with a claim against a vinyl siding company for defective workmanship. The client advanced a $200.00 retainer to cover filing and other expense. Respondent’s fee was to be one-third contingency.
“2. The evidence is conflicting as to what was promised by respondent relative to filing a petition and what assurances were given the client in such regard. In any event, a petition had not been filed by October or November of 1993, and the respondent’s services were terminated by Ms. Stevenson and her $200.00 retainer was returned.
“3. While Ms. Stevenson claims that respondent failed to return her telephone calls, there is evidence that the parties were in frequent communication. While Ms. Stevenson states that she was repeatedly assured that a petition was, or soon would be, filed and was actually informed of a January 1994 court date, the respondent denies such assurances on the ground that suitable expert witnesses had not been located which was a prerequisite for commencing litigation.
“4. Ms. Stevenson filed a complaint with the Disciplinary Administrator and the matter was referred to the Wichita Bar Association for investigation. Respondent failed to respond to correspondence from the Disciplinary Administrator and Wichita Bar Association representatives in regard to the complaint.”
In Counts I and II, the panel concluded by clear and convincing evidence that respondent had violated MRPC 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), and 3.2 (expediting litigation). In Count III, the panel concluded by clear and convincing evidence that respondent had violated Supreme Court Rule 207.
The panel considered the following mitigating circumstances:
“1. Absence of dishonest or selfish motive.
“2. Physical problems.
“3. Letters of support.”
The panel also considered the following aggravating factors:
“1. Prior disciplinary offenses — In his approximately seven years of practice, respondent has been the subject of ten complaints, four of which have been dismissed. Most recently, respondent was informally admonished for a Rule 1.4 (Communication) violation in May 1994.
“2. Pattern of misconduct — Respondent has exhibited a pattern of neglect and even a lack of competence, all with an overriding failure to communicate with clients.
“3. Multiple offenses—
“A. Rad faith obstruction of the disciplinary process — Respondent has not cooperated in the disciplinary process, either being dilatory or refusing cooperation.
“5. Refusal to acknowledge wrongful nature of conduct — Except for Pomerantz (Count II) respondent does not acknowledge his wrongful conduct.
“6. Substantial experience in the practice of law — Considering that respondent confines his practice primarily to collections, his experience of some seven years is substantial.
“7. Indifference to making restitution — Respondent shows no interest in restitution.”
The panel recommended that respondent be suspended from the practice of law for 1 year.
Respondent filed exceptions to the report of the hearing panel. However, in his brief and at oral argument, respondent stated that he does not take exception to the findings of fact and conclusions of the panel, and we adopt its findings of fact and conclusions as our own.
Respondent and his counsel do take exception to the panel’s recommendation of discipline. The Disciplinary Administrator’s office suggests that if this court departs from the panel’s recommendation, we should impose a more severe discipline. A 2-year or indefinite suspension is recommended.
We find no merit in respondent’s citing of disciplinaiy cases which he contends involve less severe discipline for more serious violations. Nor are we persuaded by respondent’s putting a favorable spin on his own conduct and shifting blame to others. An example of the latter is evident in his response to his failure to cooperate in the investigation of Stevenson’s complaint. He concedes that he did not “communicate in writing with the investigator.” He asserts, however, that “it was suggested that the investigator go to Mr. Geeding’s office and review the Stevenson file. The investigator did not so do.” Although he admits a violation of Supreme Court Rule 207, respondent hedges and avoids accepting personal responsibility. He characterizes the violation as “technical” and does not state that he violated the rule but, instead, that the rule was .violated.
Based upon the conduct of respondent and the nature and number of the violations, we do not find the panel’s recommended discipline to be too severe. The circumstances surrounding respondent’s violations, as well as the aggravating factors identified by the panel, are egregious. The mitigating circumstances do little to alter that conclusion. After a careful review of the record, we conclude the appropriate sanction in this case is suspension from the practice of law for 1 year.
It Is Therefore Ordered that Martin D. Geeding be and he is hereby suspended from the practice of law in the State of Kansas for a period of 1 year from the effective date of this order.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217); at the end of the 1-year suspension, respondent will be reinstated upon furnishing proof of compliance thereof to the Clerk of the Appellate Courts.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
-80,
-24,
-52,
-35,
8,
-95,
56,
52,
81,
-13,
-9,
115,
-19,
-42,
12,
127,
-46,
45,
-108,
105,
-59,
-74,
118,
66,
102,
-14,
-8,
-43,
-69,
79,
-19,
-100,
72,
49,
-62,
69,
6,
-54,
-59,
28,
-126,
2,
9,
-4,
-46,
1,
32,
109,
19,
15,
53,
78,
-13,
40,
57,
-21,
9,
44,
93,
110,
72,
-47,
-103,
21,
126,
22,
-93,
-124,
-102,
7,
92,
63,
-104,
56,
34,
104,
35,
-78,
-126,
100,
79,
-23,
40,
102,
98,
39,
-103,
-91,
-88,
-116,
47,
53,
29,
102,
-71,
81,
107,
13,
-74,
-104,
116,
20,
39,
-4,
-27,
-59,
25,
108,
14,
-49,
-124,
-109,
15,
117,
-50,
27,
-17,
-106,
4,
85,
-111,
-25,
92,
83,
50,
31,
-102,
-96
]
|
The opinion of the court was delivered by
Davis, J.:
This case involves a dispute between United Telephone Company of Kansas (United), a Kansas public utility telephone company, and two Kansas cities of the third class, Hill Ciiy and Bogue. United seeks to improve its residential services within such cities but the cities, dissatisfied with those services, have refused permission for United to enter and place its improvements within their respective cities. Instead, the cities have attempted to contract with another telephone company to produce such services.
The essential facts are not in dispute. The question is one of law and involves the legislative grant of authority to second- and third-class cities of Kansas authorizing the governing body of any such city to grant a franchise permitting any person, firm, or corporation to, among other things, construct and operate telegraph and télephone fines in the city. See K.S.A. 12-2001 et seq. It also deals with the powers of telephone companies “to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters.” K.S.A. 17-1901; see K.S.A 17-1902. Moreover, the resolution of the questions raised involves consideration of K.S.A. 66-131 and related statutes concerning the legislative power granted to the Kansas Corporation Commission (KCC) to issue a certificate of convenience and necessity giving a telephone company the authority to transact the business of a telecommunications public utility in this state.
Many of the statutes we deal with in this case were enacted early this century. The cases interpreting these statutes are not of recent origin. The question presented has never been resolved, although the early cases provide some guidance. The issue presented for resolution is: May a telephone company, holding a certificate of necessity and convenience from the KCC, lay equipment within a city of the second or third class for the purpose of providing residential service or improving residential service to citizens of that city without first obtaining a franchise from the city? We answer this question with a qualified no, as is more fully explained in our opinion.
In order to properly understand the facts and issues presented in the case, a brief review of the statutes governing telephone companies and municipal franchises is appropriate. K.S.A. 17-1901 concerns telegraph lines and was enacted in 1868. It states:
“Corporations created, for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters.”
K.S.A. 17-1902, enacted in 1907, gives telephone companies the same rights and powers as telegraph companies.
K.S.A. 12-2001, enacted in 1945, addresses the granting of franchises to public utilities by cities. It states that the governing body of any city may grant a franchise permitting any person, firm, or corporation to, among other things, construct and operate telegraph and telephone lines in the city. K.S.A. 12-2001(a)(3). Such franchises may only be for a term not to exceed 20 years and cannot be exclusive. K.S.A. 12-2001(b)(3). K.S.A. 12-849 states that it is unlawful for any firm to enter upon the city streets of a second- or third-class city to provide telephone service without a franchise.
Further, in order to operate within an area of this state, a telephone company must secure a certificate of convenience and necessity from the KCC. K.S.A. 66-131. The KCC is empowered to supervise and control the rates and services of telephone companies in Kansas. See K.S.A. 66-131.
With this statutory background in mind, we turn now to the facts of this case. We note that the issues presented for resolution are legal questions, and while the parties appear to argue about the facts, the facts essential to the resolution of the issues are undisputed.
United is a corporation organized and existing under the laws of Kansas. It has been issued a certificate of convenience and necessity to transact the business of a telecommunications utility in accordance with the provisions of K.S.A. 66-131 by the KCC. Under its KCC authority, United serves approximately 130,000 Kansas customers in predominantly rural markets through 159 exchanges. Hill City and Bogue, both third-class cities under the laws of Kansas, and other portions of Graham County, are included in United’s KCC certificated service territory (Hill City exchange area). At the present time, no other telecommunications public utility is certified by the KCC to provide service in the Hill City exchange area.
Hill City approved a franchise ordinance authorizing United “to operate its telephone system and all business incidental to or connected with the conducting of a telephone business and system in the City of Hill City, Graham County, State of Kansas” on May 24, 1974. The initial franchise ordinance was for a term of 10 years with an automatic 10-year renewal unless either party gave notice to terminate.
Dissatisfied with the telephone service provided by United, Hill City, on August 30, 1993, passed Resolution No. 93-5, terminating United’s franchise effective the last day of December 1993, at the expiration of the 20-year franchise period. In a letter to United, Hill City stated that after January 1, United would no longer have authority to use the city’s infrastructure to update its lines or complete any modernization.
United has never held a franchise for Bogue; nevertheless, United has provided telephone service to Bogue for at least as many years as United has served Hill City. On December 13,1993, United sought permission from Bogue to use the city’s roads for placement of buried cable as part of United’s modernization plan. At a December 13, 1993, meeting, the governing body of Bogue voted that United “should not use the streets and alleys of Bogue for its ‘modernization’ work.” The City Council of Bogue notified United on April 11, 1994, that it had been operating in Bogue without a franchise and instructed United, because of United’s inefficient and insufficient telephone service and lack of confidence by the community in the credibility and capability of United, to
“remove your poles, lines and other facilities from the City of Bogue, Kansas, within a reasonable time after all present litigation between the City of Bogue and United Telephone Company is terminated and/or Rural Telephone Service Company is issued a certificate of convenience and necessity to service Bogue . . . and a new telephone system constructed by said service company.”
United has undertaken a major project to upgrade its services and facilities in the Hill City exchange area. One component of the project involved replacement of an analog switch with digital technology. The analog to digital switch cutover was accomplished in May 1994 at a cost of approximately $800,000. Installation of the digital switch permitted United to offer new custom calling features such as call forwarding, speed calling, and conference calling to customers in the Hill City exchange area.
The second major component of the project, which was also scheduled for completion in 1994, involved a $1.2 million investment by United to replace and upgrade outside plant facilities. The record indicates that United intends to replace all existing paper-insulated cable with 14,500 feet of buried copper cable in Hill City; place 6,300 feet of conduit between the central office, the high school, and the business district in Hill City to permit deployment of fiber-optic cable if supported by customer demand; and provide 33 miles of new copper buried facilities and digital pair gain devices to make available one-party service to all existing multiparty customers in the Hill City exchange area, including the 51 multiparty customers in Bogue. Two miles of these new buried copper facilities would be placed in Bogue, with the remaining 31 miles to be placed in rural Graham County. The total cost of the project was estimated to exceed $2 million.
Hill City and Bogue have each adopted ordinances granting a franchise to Rural Telephone Service Company, Inc., (Rural) to provide telephone service for the cities. Rural has not yet obtained the necessary certificate of convenience and necessity from the KCC to conduct its telecommunication business in those cities.
On October 18, 1993, after Hill City had given notice of its termination to United, the KCC opened Docket No. 189,150-U, ordering United “to show cause why the Commission should not investigate its quality of service.” A batteiy of hearings statewide led the KCC to conclude:
“United has not been providing efficient and sufficient service to all its customers ... . United has failed to meet many of its customer's expectations with regard to quality of service and technology available to its customers. United’s own testimony admits it has not met customer’s expectations in a timely manner ....
“. . . With respect to most, if not all, of these problems, it appears that United compares unfavorably with the quality and level of services now provided by other local telephone companies in Kansas, which further exacerbates United’s customers’ frustrations.”
United’s modernization plan was submitted for the KCC’s review in the above mentioned hearing. Under the plan, United had proposed to upgrade all multiparty customers to a one-party service by the end of 1999 and to provide digital switching in all exchanges by the end of 2001. By order entered May 6, 1994, the KCC directed that United accelerate completion. The KCC ordered that conversion to digital switching technology must be completed by the end of 1997 and the upgrade to a one-party service standard for all Kansas exchanges must be accomplished by the end of 1998. United renewed its requests to use Hill City’s and Bogue’s roads for its modernization program. Both cities refused.
Also during this time, Hill City filed a complaint with the KCC seeking a resolution not only relating to United’s service problems but also pursuing a KCC order decertifying the Hill City territory. K.S.A. 66-1,192 specifically charges the KCC to proceed with investigation of any complaint “that any service performed or to be performed by such telecommunications public utility for the public is unreasonably inadequate, inefficient, unduly insufficient or cannot be obtained.” Upon investigation, the KCC is empowered “to require telecommunications public utilities to make such improvements and do such acts as are or may be required by law to be done by any such telecommunications public utility.” K.S.A. 66-1,192(b). In response, the KCC declared it would not attempt to address the franchise issue:
“The Commission is not a party to the franchise agreement between Hill City and United Telephone nor is the Commission the proper forum to determine the validity of an agreement or to require the issuance of such an agreement. United Telephone has, however, brought these very issues to the attention of the Graham County, Kansas District Court in United Telephone Company of Kansas v. the City of Hill City, Kansas, the City of Bogue, Kansas, and the Board of County Commissioners, Graham County, Kansas; Case No. 94-C-20 in its petition for mandamus, declaratory, and injunctive relief filed on March 24, 1994. The Commission believes that the district court is the appropriate forum to consider the issues surrounding the franchise agreement.”
Both cities subsequently moved to have their complaints dismissed. Bogue’s motion was filed immediately prior to scheduled KCC hearings in March 1994. The Hill City motion was filed after the hearings had been conducted. No final order has been issued in the complaint proceedings. The KCC did, however, issue a preliminary order dated March 6, 1994, in which it addressed the interaction between city franchising authority and the KCC’s certification authority. Relying upon City of New Strawn v. Kansas Corporation Commission, 5 Kan. App. 2d 630, 622 P.2d 149 (1981), the KCC reasoned: “[A] city’s decision to cancel a contract, grant, privilege, or franchise, does not mean that the Commission is required to cancel a certificate, or that the city can in essence evict a telephone company from operation under the terms of its valid certificate.” Based on New Strawn, the KCC concluded that “[njeither Hill City nor the city of Bogue have authority to order United to cease operations in their respective territories and to stop with the intended modernization capital improvement plans.”
On March 24, 1994, United filed this action in mandamus for declaratory and injunctive relief pursuant to K.S.A. 60-801 et seq. and K.S.A. 60-901 et seq. United asked for a judicial declaration that it is empowered to use the roads, streets, highways, alleys, easements, and rights-of-way of Hill Ciiy and Bogue for the placement of its telecommunications facilities. United further sought an order enjoining Hill City and Bogue from taking action that would interfere with United’s use of the public property and compelling Hill City and Bogue to issue permits for United to use the roads. Graham County was also a party to the suit as a defendant, although it is not a party on appeal.
On March 28, 1994, United filed a request for a temporary injunction prohibiting Hill City and Bogue from interfering with United’s use of the city streets to complete its modernization efforts. United also asked that Hill City and Bogue be ordered to permit United to use the streets.
On April 29, 1994, a hearing was held on United’s motion for temporary injunction. The district court determined that United had the ability to use the public roads to string telephone lines but not to install underground cable. The district court further denied the request for a temporary injunction.
On September 12, 1994, the case came before the court for a hearing. United presented testimony concerning its plans for modernization of the lines in Hill City and Bogue. United also presented the deposition of Don Low,' Utilities Division Director for the KCC. At the close of the evidence, the district court found that although United did not have a franchise from either Hill City or Bogue, it did have a certificate of convenience and necessity from the KCC to service the Hill City and Bogue area. The court further found that Hill City and Bogue had the authority to enter into franchises with whomever they wished and that it could not compel them to enter into a franchise with United. However, the court found that United had a statutory right to use the cities’ property to string aerial lines but not to install underground cable. The court then ordered United to submit its plans to the cities for review and also issued an order prohibiting HUI City and Bogue from interfering with United’s reasonable use of the streets for purposes of putting in aerial cable.
BOGUE AND HILL CITY APPEAL AND UNITED CROSS-APPEALS
Hill City and Bogue raise numerous issues on appeal. United identifies four issues. The KCC and Southwestern Bell Telephone Company (Southwestern Bell) have filed amicus curiae briefs, each identifying three issues of general interest. The central issue in this case is whether United may use the public streets of Hill City and Bogue in order to place cable and wires in accordance with its modernization efforts even though neither Bogue nor Hill City have granted United a franchise to provide them with telephone service and the cities do not want United to be their service provider.
Hill City and Bogue argue that without a franchise, United cannot utilize the city streets and that United should be required to remove its equipment once the telephone system that is to be set up by their new franchisee, Rural, is installed and operative. United, however, argues that K.S.A. 17-1901 and K.SA. 17-1902 give it the right to enter into city streets without a franchise and that United is required to do so under its certificate of convenience and necessity granted by the KCC.
The basis for the arguments of Hill City and Bogue that United may not use their streets and must remove its equipment is found in City of Wilson v. Electric Light Co., 101 Kan. 425, 166 Pac. 512 (1917). In City of Wilson, the city in question had granted a franchise to an electric company. When the company’s franchise expired, the city asked the company to remove all of its poles, wires, and fixtures on the city’s property. The company refused, and the city brought suit. 101 Kan. at 426.
City of Wilson found that the city had the right to require the electric company to remove its installations. 101 Kan. at 430. The court also found that the recently enacted Public Utilities Act did not supersede the power of the city to control its public rights-of-way, noting:
“The legislature, of course, might have conferred upon the public utilities commission the power to control the streets, alleys and public grounds of cities and to grant franchises to public utilities to operate within cities, but it chose to place these powers in the municipal authorities. The powers which were intrusted to the commission and the scheme of control given to it are wholly inconsistent with the control of cities, or of the streets, alleys and public grounds of cities. The legislature has expressly placed that control in other tribunals and the control of rates, rules, practices and services of utilities, to which a franchise or right has been granted, has been vested in the commission. No express repeal of the statute giving the authority to cities has been discovered and we think none is implied.” 101 Kan. at 430.
City of Kiowa v. Central Telephone & Utilities Corporation, 213 Kan. 169, 515 P.2d 795 (1973), involving a related question, arose from proceedings initiated by the city under K.S.A. 12-811, providing for the purchase by a city of any electric utility plant being operated within the city. The court again faced the issue of whether a city could require an electric company, once its franchise had been terminated, to remove its electric plant and distribution lines. The court affirmed its holding in City of Wilson that the right of the utility to operate within the city terminated on the expiration of the franchise. City of Kiowa concluded that the city would have had the legal right to force Central Telephone and Utilities Corporation “to remove its poles and wires from the city without payment of the expense of removal and without payment of damages.” 213 Kan. at 172.
United recognizes that these cases relied upon by Hill City and Bogue exist but claims that they are inapplicable to this case because they do not deal directly with telephone companies and, more specifically, with the statutory grant to telegraph and telephone companies in K.S.A. 17-1901 and K.S.A. 17-1902 respectively to “set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state.” Instead, United claims that these statutes provide a specific grant of authority for it to use the streets of Hill City and Bogue notwithstanding the fact that it does not have a municipal franchise.
In support of this contention, United cites Telephone Co. v. Concordia, 81 Kan. 514, 106 Pac. 35 (1910). In that case, the New Hope Telephone Company (New Hope) applied for a municipal franchise to build telephone lines through the city of Concordia, but the application was arbitrarily refused. 81 Kan. at 515. New Hope then ran its lines into the city in defiance of the city’s refusal and commenced to operate a telephone business within the city. 81 Kan. at 515. New Hope argued that, under G.S. 1901, 1342 and G.S. 1901, 1251, 1252, it was authorized to enter the city to run its lines.
This court found that the statutes cited gave telephone companies the unique right to enter cities whether or not the city granted them a franchise. 81 Kan. at 517-18. We construed the Franchise Act and the statutes together and concluded that a city might only reasonably regulate the manner and place of construction of the lines. 81 Kan. at 517-18. It should be noted, however, that although New Hope was attempting to provide telephone service within the city, our opinion extended only to determining New Hope’s right to run its wires along the city streets.
United also argues that it is the possessor of a certificate of convenience and necessity to serve the Hill City exchange area and that the terms of that certificate require it to enter the city and modernize its service. United argues that this certificate supersedes any municipal franchise. According to United, telephone service is a matter of statewide concern which should override any municipal interest.
The amicus curiae briefs of both the KCC and Southwestern Bell echo United’s assertion that telephone service is a matter best left to statewide regulation and, therefore, the KCC’s power must be predominant. In support of their assertions, they point to K.S.A. 12-2002, a statute contained in the Franchise Act. K.S.A. 12-2002 states: “This act shall not be construed either to affect the jurisdiction of the corporation commission or to prevent any electric or gas utility from obtaining a franchise under the terms of K.S.A. 12-824 or any amendments thereto.”
According to the KCC and Southwestern Bell, this statute makes clear that municipal franchises cannot affect the jurisdiction of the KCC. However, we note that this statute says nothing about extending the jurisdiction of the KCC into areas traditionally controlled by municipal franchises. Instead, K.S.A. 12-2002 merely provides that a municipal franchise may not encroach upon matters traditionally regulated by the KCC, such as rates that a utility may charge for service.
United asks us to conclude, as a matter of law, that under the provisions of K.S.A. 12-2002, the Franchise Act is made subordinate to the power of telephone companies to lay and maintain their lines under K.S.A. 17-1902 and also subordinate to the power of the KCC to grant certificates of convenience and necessity. The cities ask us to conclude, as a matter of law, that the franchising power found in K.S.A. 12-2001 etseq. controls over both the KCC and telephone companies. We, however, view the powers of telephone companies under K.S.A. 17-1901 and K.S.A. 17-1902, municipal franchising authority under K.S.A. 12-2001 et seq., and the power of the KCC to grant certificates of convenience and necessity under K.S.A. 66-131 as three separate and distinct powers that operate together to make up the framework of telecommunications regulation in the State of Kansas.
Under K.S.A. 17-1901 and K.S.A. 17-1902, telephone companies are authorized to build and construct their lines along public rights-of-way in the state. Such a power is necessary in order to maintain intrastate and interstate service. Nothing in the Franchise Act allows municipalities to prevent telephone companies from constructing and maintaining telephone lines upon and across any of the public roads, streets, and waters of this state as long as the company does so in such a manner as not to incommode the public in the use of such roads, streets, and waters. See K.S.A. 17-1901; K.S.A. 17-1902; Telephone Co v. Concordia, 81 Kan. at 518.
Providing telephone service to the residents within municipalities is another matter altogether. Through the municipal franchising statutes, the legislature vested the second- and third-class cities within this state with the power to enter into franchises with companies which would provide for their telecommunications needs. City of Wilson v. Electric Light Co., 101 Kan. at 430. To hold that a telephone company may enter and serve a community without obtaining a franchise to do so, and to maintain service in that community in opposition to the will of the citizens in that community once a franchise to operate within the city has expired, would make the franchise power of the city irrelevant. Instead, the legislature specifically provided for cities to choose the provider of their utility services through the franchise statutes.
However, this power vested in the cities is not absolute. In order to serve a particular area, a telephone company must obtain a certificate of convenience and necessity from the KCC. K.S.A. 66-131. The KCC is vested with discretion in this area to regulate telephone companies in order to maintain a statewide telecommunications system and to provide for efficient and effective service to communities in Kansas. Therefore, any municipal franchisee must still obtain KCC approval to serve its franchised area. The power of a city to grant franchises does not confer upon that city any power to decide whether a telephone company should be granted a certificate of convenience and necessity. See K.S.A. 12-2002 (stating that the Franchise Act does not affect the jurisdiction of the KCC); City of New Strawn v. Kansas Corporation Commission, 5 Kan. App. 2d at 635 (holding that the KCC has the power to deny a certificate of convenience and necessity regardless of whether the city has granted a franchise). That power was specifically vested in the KCC by the legislature.
But, just as second- or third-class cities may not dictate who shall be granted certificates of convenience and necessity by the KCC, so also the KCC may not determine which company shall be granted a franchise to operate within the cities. As we stated in City of Wilson:
“The commission has the fullest power to regulate the service and rates made and furnished by utilities and public service corporations . . . . It is even authorized by section 31 (Gen. Stat, 1915, § 8359) of the act to inquire into the necessity for an additional public utility or common carrier that may apply for an opportunity to do business in the state; that is, to inquire and determine whether or not the public convenience would be promoted by tbe transaction of business by such added utility or common carrier. But none of these provisions nor anything contained in the act hints at a legislative purpose to give the commission authority to impose a franchise upon the people of a city, whether willing or unwilling, nor to reanimate a franchise that has expired .... Once a utility is vested with authority to enter upon the streets, alleys and public grounds of a city, and to exercise the privileges conferred upon it, the commission may regulate the service, prescribe the rates and require the continuance of the service at the prescribed rates.” 101 Kan. at 428-29.
United, amicus curiae Southwestern Bell, and amicus curiae KCC would have us distinguish City of Wilson because, while it involved a utility, it did not involve a telephone utility. This fact, they claim, is significant because telephone companies are granted rights under K.S.A. 17-1902 which, according to their contention, include the right to enter and lay lines, poles, underground cable, and equipment, not only for the purpose of going through a city but also for the purpose of serving the citizens within the city. They claim this right is superior to the franchising right of a city. In this decision, we have affirmed the right of telephone utilities to enter into cities to install lines, poles, cable, and equipment for the purpose of preserving intrastate and interstate communications. This right may not be frustrated by cities and may be exercised with or without permission from cities. However, if we were to adopt the contention of United that it may serve the residents of the cities without a franchise, we nullify the provisions of K.S.A. 12-2001 et seq. granting franchise powers to cities of second and third class in this state. This is not and was not the intent of the legislature.
As a result, an important factor in any proceeding before the KCC involving telephone service to cities of second and third class of this state and questions whether to grant a certificate of convenience and necessity will be whether the company applying for such authority has a franchise to do business within that territory. The express intent of the legislature in enacting the Franchise Act was to vest cities of the second and third class with the power to determine, by franchise ordinance, which company or companies shall serve their communities so long as that decision does not interfere with intrastate and interstate communications.
As can be seen from this analysis, the powers of the cities, telephone companies, and the KCC are supreme within their own areas of regulation. Their powers are “distinct and clear and there is no occasion and apparently no disposition for one tribunal to trench upon the duties and powers of the other.” City of Wilson, 101 Kan. at 430. Telephone companies are granted the authority to construct and maintain their lines across the public rights-of-way in the state. K.S.A. 17-1901; K.S.A. 17-1902. Cities are granted the authority to determine which telephone company or companies will provide them with sendee. K.S.A. 12-2001. Finally, the KCC is granted the authority to issue certificates of convenience and necessity allowing telephone companies to do business in certain areas of the state so that the statewide telecommunications system will not be impeded. K.S.A. 66-131. While a telephone company with a certificate of convenience and necessity to serve an area may construct lines through a city, it may not serve that city without a franchise. While a city may grant a franchise to a telephone company, that company must obtain a certificate of convenience and necessity from die KCC. Finally, while the KCC may grant or deny certificates of convenience and necessity based on its powers to regulate the statewide telecommunications system, it may not force a city to grant a franchise to a telephone company.
To hold that United has the right, without a franchise, to expend substantial funds to upgrade a telephone system for service to the residents of Hill City and Bogue, a system calculated to serve those communities well into the future would be to ignore the powers conferred by the legislature on second- and third-class cities to grant by ordinance the power for a company or companies to do business in those cities. United has attempted to obtain a new franchise from both cities and has failed. It is significant that the trial court found that the termination of the Hill City franchise agreement was not unreasonable or arbitrary. While the trial court did not address this same question as to Bogue, the record would support the same conclusion. Thus, both cities have exercised their respective powers in a reasonable manner in refusing to grant United a franchise to serve their respective cities with telephone service.
The trial court also held that United does have the right under statute to use the cities’ streets .and highways, to plant poles, and to string wire, uninhibited by the cities, subject to reasonable use and restrictions as provided'by the cities. Moreover, the court concluded that the denial of a franchise by the cities was not arbitrary and was supported by substantial competent evidence. We affirm the court as to the right of United to use the public rights-of-way to facilitate intrastate and interstate communication. However, the ability to provide service within the cities to the residents is dependent upon a company obtaining a franchise from the cities as well as subject to the power of the KCC to grant certificates of necessity and convenience. This is a factor which must be considered by the KCC in considering the issuance of a certificate of convenience and necessity for telephone service to the citizens of second- and third-class cities.
The trial court also held that K.S.A. 17-1901 and K.S.A. 17-1902 give the plaintiffs the right to plant poles and to run lines but they do not give them the right to bury cable. We find nothing in the two statutes involved which would limit telephone companies’ right to bury cable. Perhaps the court was reading the law in a veiy technical sense in that it authorized poles, peers, abutments, wires, and other fixtures “along, upon and across” any of the public roads, streets, and waters of this state and, thus, excluding the right to buiy. However, we believe the right to bury cable is clearly contemplated by the grant of authority as long as it shall be accomplished “in such manner as not to incommode the public in the use of such roads, streets and waters.” K.S.A. 17-1901. To this extent, we conclude that the court erred, and, in accord with the cross-appeal of United, we reverse this conclusion of the trial court.
The conclusion we reach is consistent with the scant authority in this state interpreting the seemingly conflicting statutes involved in our determination. Our conclusion affirms the powers of all concerned: the telephone companies to continue unimpeded with their responsibility to provide uniform and continuous service throughout the state; the KCC’s authority to regulate the industry, including the exclusive power in Kansas to grant public utilities the right to do business under a certificate of convenience and neces sity; and the right of cities, and more particularly the residents of those cities, to determine what company dr companies shall deliver telecommunication services under a franchise ordinance to its residents. Our decision harmonizes the seemingly conflicting powers conferred on all three bodies by our legislature, operating completely independently but somewhat interdependent^ in situations where the public good demands it.. If the legislature wishes to change this scheme of operation, it may do so. At present, we note that the statutes we interpret today have been in existence for many years and whatever conflicts that may have existed in the past have never required resolution by this court.
Affirmed in part and reversed in part.
Abbott, J., not participating.
Robert H. Miller, C.J. Retired, assigned. | [
-80,
122,
-12,
-98,
-116,
-18,
18,
-110,
121,
-79,
-26,
87,
-115,
-56,
-107,
125,
-110,
125,
-110,
115,
-63,
-106,
79,
-22,
-98,
-37,
-13,
-51,
-69,
93,
-12,
-20,
76,
48,
-54,
-43,
70,
66,
69,
-98,
-114,
0,
9,
72,
-15,
-61,
38,
105,
82,
-62,
81,
-115,
-77,
40,
24,
-45,
-88,
62,
-37,
44,
-45,
-16,
-54,
-41,
124,
22,
50,
36,
-104,
-123,
-32,
46,
-104,
49,
8,
-24,
83,
-90,
-126,
-12,
15,
-39,
-55,
98,
98,
34,
-95,
-17,
-36,
-100,
6,
-38,
-99,
-90,
-122,
72,
35,
13,
-74,
29,
96,
22,
3,
-2,
-9,
-124,
-105,
124,
11,
-113,
-12,
-93,
15,
-26,
-125,
81,
-17,
98,
-96,
112,
-50,
-94,
95,
71,
50,
27,
-114,
-3
]
|
The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action brought by the surviving spouse of a deceased state employee seeking a determination that she is the owner of certain pension benefits and life insurance proceeds, notwithstanding the fact the decedent’s former wife is the designated beneficiary thereof. The district court, on equitable principles of unjust enrichment, established a constructive trust in favor of the surviving spouse on the bulk of the proceeds. Alternatively, the district court held that the Kansas Public Employees Retirement System (KPERS) benefits were subject to the widow’s right of election under K.S.A. 59-602 (Ensley); throughout this opinion the Ensley version of chapter 59 will be the applicable version. Appeals and cross-appeals have been filed by the various parties hereto from those portions of the judgment adverse to their respective positions.
The evidence presented at trial essentially falls into one of two categories, which shall be characterized as relating to “events,” or as relating to oral statements made by the deceased Dale A. Rice. There is no claim by the widow nor did the trial court find that the events facts, alone, provide any grounds for the invalidization of the deceased’s designation of his beneficiary.
The events facts are uncontroverted and are summarized as follows. Janet Sue Custenborder and Dale were married on May 18, 1957. Between January 1958 and November 1963, six children were bom to the marriage. At some point, both Janet and Dale became dissatisfied with the marriage but opted to stick it out until all of their children had become adults.
Dale was employed at the Kansas Division of Printing from August 21, 1972, until May 21, 1982, when he terminated his employment and withdrew his KPERS pension contributions. In September 1982, Janet filed for a divorce which was granted in Januaiy 1983. Dale was involved with plaintiff Beverly J. Kinnett (now Rice) at the time, and Janet, also, was seeing someone else. All marital assets were divided pursuant to a property settlement agreement and no order of support was entered. Sometime in the spring of 1983 Dale and the plaintiff began living together. Dale was approximately 18 years older than Beverly.
In September 1983, Dale resumed his employment with the state printer. He had debts from an abortive entry into the trucking business. Upon resuming his state employment, Dale executed a KPERS enrollment application. He designated Janet Sue Custenborder “ex-wife” as his beneficiaiy. At the time of his reemployment Dale applied for $50,000 life insurance through the Kansas Public Employees Retirement System Optional Group Life Insur anee. As a state employee under KPERS, Dale received automatically, at no cost to him, a basic group life insurance policy in an amount equal to one and one-half times his annual salary. The life insurance program was administered by KPERS, but the actual insurer was defendant Security Benefit Life Insurance Company (SBL). .
The application form for the optional life insurance provided, in pertinent part:
“The beneficiary for this plan will be the same as your beneficiary for the KPERS basic group life insurance plan. If the named beneficiary does not survive the insured, then the proceeds payable shall be paid in accordance with K.S.A. 74-4902(7)."
Both the basic group life and the optional group life insurance are term insurance with no cash value and payable only on the death of the insured. SBL has no contact with the insured. Once optional group life insurance is approved,. KPERS issues an insurance certificate to be delivered to the insured. KPERS does not keep copies thereof. The certificate was not located in Dale’s possessions after his death. There is no record of its actual delivery to Dale.
On November 13, 1984, Beverly and Dale were married. On September 12, 1985, Dale applied for an additional $50,000 of optional life insurance. This was approved, thereby giving Dale $100,000 of such insurance. Payment for optional life insurance is through payroll deductions.
In October 1986, Dale enrolled in a public employees deferred compensation plan issued in conjunction with Aetna Life Insurance and Annuity Company. Beverly was designated by Dale as his beneficiary. Proceeds of $11,000 therefrom were received by Beverly and are not at issue herein.
In the fall of 1988, Dale and Beverly applied for a loan to provide funds to build a home on land they owned in Auburn. On their loan application they listed total life insurance in the aggregate amount of $130,000. The life insurance was stated to have a cash value of $25,000. Dale’s insurance at issue was term insurance with no cash value.
On September 19,1989, Beverly purchased optional group term life insurance through her employer, designating Dale as her beneficiary.
On September 27, 1989, Dale applied for additional insurance. In all relevant parts, the application form was the same as the first application for optional fife insurance. The application was approved by SBL. Effective January 1, 1990, Dale had a total of $200,000 optional life insurance provided through the KPERS optional life insurance plan underwritten by SBL.
The specimen copies of the insurance certificates for the optional insurance provide:
“BENEFICIARY — Payment of any Optional Group Life Insurance under this provision on account of the death of an Insured shall be made in the same manner and to the same Beneficiary as the proceeds under the Certificate to which this provision is attached.”
The Basic Group Life Insurance Certificate states that death benefits will be paid to the person or persons designated as the beneficiary designated on the KPERS form. If no person is designated or if the designated beneficiary does not survive the KPERS employee, the proceeds are paid as specified in K.S.A. 74-4902(7).
Effective on the first anniversary of his reemployment, as per statute, monthly deductions of Dale’s KPERS retirement contributions began. An employee may change his beneficiary designation at any time. Dale did not do so. Janet Custenborder, Dale’s ex-wife, continued to be his designated beneficiary. A KPERS eligible employee cannot designate one beneficiary for pension benefits and another for life insurance. All KPERS benefits, whether pension, basic fife insurance, or optional group life insurance must carry the same beneficiary designation.
Each year KPERS-eligible employees receive an annual statement of benefits on which, in the upper left-hand comer, is prominently displayed the name or names of the employee’s designated beneficiary or co-beneficiaries. There was no testimony that Dale actually received or did not receive these annual statements. Beverly testified she never saw any such form.
One of Dale’s six children, Derrick, has a severe hearing disability and is a schizophrenic. Although Derrick received federal and state disability payments and did not live with either parent, both parents assisted him financially and in securing necessary medical treatment. Derrick’s future was an ongoing concern of Dale and of other family members.
After leaving his state employment, Dale engaged in the trucking business. He went into debt. Beverly assisted in the payment of these debts and often worked two jobs. Beverly was the couple’s money manager and wrote most of the checks. During the marriage the couple shared a joint bank account and filed joint tax returns with Beverly being responsible for the preparation of the annual tax returns.
Dale died suddenly of a massive heart attack on December 2, 1991. He was 55 years old at his death with no history of heart disease. He died intestate. At Dale’s death the following were available through KPERS for distribution:
1. Basic Group Life Insurance $ 52,200.00
2. Optional Group Life Insurance $200,000.00
3. Accumulated Pension Contributions $ 17,058.94
Janet Custenborder was the designated beneficiary of all such proceeds.
We now turn to the oral statements upon which Beverly relied, and which the district court found warranted the granting of equitable relief, invalidating Dale’s legally executed designation of beneficiary form. The district court found each of Dale’s statements admissible under either K.S.A. 60-460(d)(3) or (l)(1). No complaint is made as to this determination.
The testimony at trial reflected that Dale discussed his life insurance with an amazingly large number of people, including friends, relatives, coworkers, and others. In virtually all of the conversations, Dale initiated the topic of his insurance. Beverly, and many of the individuals she called as witnesses, testified to various oral statements Dale had made to the effect he had taken out the optional life insurance so that Beverly would be taken care of and/ or so that she would be able to keep their home if something hap pened to him. Beverly also testified that Dale wanted her to treat his children “fairly” and give them an unspecified part of his life insurance proceeds.
Janet presented the testimony of herself and certain of her children that Dale made oral statements that Janet was his beneficiary on all state benefits and that Beverly would have the house. One of Dale’s daughters testified that Beverly overheard one of these conversations, expressed anger over its content, but acknowledged she was aware that Janet was the named beneficiary of the state benefits.
Beverly testified she did not know Janet was the designated beneficiary. Thus, the only controverted testimony is that of the daughter relative to Beverly’s knowledge. The conversation, involving the daughter, Dale, and Beverly, is the only confrontational conversation in evidence. Put another way, it is the only instance where Dale is alleged to have made statements relative to the beneficiary of his life insurance which displeased the object of the statement and evoked a disapproving reaction. There was also testimony that Dale had made statements that he had left life insurance to his children.
The district court bifurcated its decision herein. On August 25, 1993, the district court held that all three categories of KPERS benefits at issue were subject to the plaintiff widow’s right of election under K.S.A. 59-602. KPERS and Janet appeal therefrom. On May 23, 1994, the district court entered its final order disposing of the remaining issues. Specifically, the district court held:
“Hence, the Court adopts the previous findings made in the memorandum decision of August 25,1993. However, the ruling of this order creating a constructive trust controls. It is therefore the order of this Court that a constructive trust should be imposed upon the KPERS accumulated contributions of $17,058.94 and all of the SBL optional life insurance benefits paid for by Dale A. Rice which amount to $200,000.00. Under the terms of this trust, KPERS and SBL shall pay the proceeds to Beverly J. Rice. No constructive trust shall be imposed upon the basic group life insurance paid by Dale A. Rice’s employer. The $52,200.00 of basic group life insurance should be paid to the designated beneficiary, Janet Garrison.”
KPERS and Janet appeal from the district court’s finding of unjust enrichment and imposition of the constructive trust of the two categories of benefits and the court’s application of K.S.A. 59-602. Beverly appeals from the district court’s refusal to include the basic group life insurance proceeds in the constructive trust.
Inasmuch as the district court held its later order controlled over the earlier order, we shall first consider the issues arising thereunder.
The district court’s rationale was as follows:
“Conclusions of Law
“In support of her claim that she is entitled to all KPERS benefits (including life insurance benefits through SBL),. Beverly J. Rice has advanced several theories. Many have been discussed in previous orders. However, there has been no previous ruling on the theory of recovery in which Beverly J. Rice urges the imposition of a constructive trust or application of die unjust enrichment theory to hold all KPERS benefits in trust for her. In support of her claim, Beverly Rice cites Hile v. DeVries, 17 Kan. App. 2d 373, 836 P.2d 1219 (1992). In that case, the deceased, Larry, had executed a property settlement agreement in which he agreed to maintain his daughters as beneficiaries on .at least $50,000 of fife insurance. The deceased later remarried and named his current wife, Bridget, as the beneficiary. His ex-wife, Judith, sought to impose a constructive trust upon a portion of his life insurance proceeds. The Court of appeals upheld the trust. Id. at 374.
“Much of the analysis in Hile was whether, under the facts, there had to be fraud before a constructive trust could be imposed. The Court of Appeals determined that because the case involved insurance proceeds, fraud did not have to be established. Id. In reaching this decision, the Court of appeals distinguished the holding in Clester v. Clester, 90 Kan. 638, 135 P. 996 (1914). In Clester, the Court noted:
It is true that trusts by implication frequently arise in transactions between persons occupying such intimate relationships as that of husband and wife or parent and child, but the mere fact that the transaction is between husband and wife or parent and child, and that no valuable consideration passes, is not sufficient to raise a trust by implication. (Brown v. Brown, 62 Kan. 666, 675, 64 P. 599.) There must be fraud, active or constructive, and neither character of fraud will be presumed from the fact alone that the relationship of the parties is such as to suggest that a fiduciary relation may have existed; there must be some betrayal of a confidence reposed or some breach of a duty imposed by such relation. When either of these is shown equity is expressly authorized, under the exceptions stated in section 8, supra, to raise a trust by implication and to enforce it in furtherance of justice and to prevent fraud. (See Kennedy v. Taylor, 20 Kan. 558, 561.)’
It is said:
‘The test of such a trust is the fiduciary relation and a betrayal of the confidence reposed, or some breach of the duty imposed under it.’
‘The existence of the relation, and a subsequent abuse of the confidence bestowed under it for the purpose of acquiring the property, are alone sufficient to authorize the enforcement of the trust.’ Trice v. Comstock, 121 F. 620, 61 L.R.A. 176, headnote, ¶ 3.)
Id. at 641-42.
“As the Supreme Court noted, such cases frequently arise between husbands and wives because of the common recognition of the confidential and fiduciary relationship between such parties. 89 C.J.S. Trusts § 151(c)(2). In such a situation, constructive fraud is commonly found.
“One frequently cited case is Sullivan v. Rooney, 404 Mass. 160, 533 N.E.2d 1372 (1989). The Massachusetts court imposed a constructive trust on title to a home. The parties had a thirteen or fourteen year relationship during seven of which they had lived together. The parties looked for a home together and reached a joint agreement on the home to purchase. It was titled solely in his name in order to take advantage of some preferential Veteran’s Administration financing. The parties lived together in the house for almost three years. The woman worked as a waitress and put all of her earnings and savings into the house, paying for food, household supplies and furniture. The man made the mortgage payments and paid taxes, utilities and insurance on the home. The woman did all of the housework, decorating and entertaining. On several occasions, the man promised to transfer tide to joint ownership. The appellate court noted:
"The judge’s unchallenged findings of fact demonstrate that there was a fiduciary duty to the plaintiff. Equitable principles impose a constructive trust on property to avoid the unjust enrichment of a party who violates his fiduciary duty and acquires that property at the expense of the person to whom he owed that duty.’
Id. at 163. The court noted there had been promises to transfer the tide of the property to the woman, she had reasonably relied upon promises to her detriment and another party had become unjustly enriched. Therefore, the appellate court upheld the imposition of the constructive trust.
“This case illustrates how the Clester standard can be applied in this case. The Kansas Supreme Court in Clester indicates that the fraud may be actual or constructive. 90 Kan. at 641.
‘Constructive fraud isa breach of a legal or equitable duty which, irrespective of the moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence and neither actual dishonesty or purpose or intent to deceive is necessary.’
Loucks v. McCormick, 198 Kan. 351, 356, 424 P.2d 555 (1967).
"Applying the Clester test under the theory of constructive fraud to the facts of this case leads to the conclusion that a constructive trust should be imposed over certain benefits at issue. On several occasions Dale A. Rice made statements to Beverly J. Rice indicating he had or would provide life insurance sufficient to cover their mortgage and otherwise ‘take care of her’. Beverly, in rebanee upon these promises, obtained insurance providing the same protection to Dale. In addition, over the years, Beverlyworked two jobs so that they could pay off Dale’s debts, then obtain their home, and contribute as much as they could afford to Dale’s retirement funds so that Dale could reakze his dream of an early retirement. Marital funds were utilized to pay for Dale’s pension fund and his optional bfe insurance. The Court does not find that tire actions of Dale Rice were intentional, in bad faith or with a purpose to deceive. However, it is not necessary that the Court make such findings under the constructive fraud theory. Loucks, 198 Kan. at 356.
“Despite the promises to Beverly that she would be the beneficiary of these funds, and despite her reasonable rebanee upon those promises and her work to achieve that joint financial goal, Dale did not fulfill his oral promise and make Beverly the beneficiary of the funds. As a result, Janet Garrison is unjustly enriched. Upon the termination of Janet and Dale’s marriage, the parties settled all issues regarding support and property. Dale had no duty to support either Janet or any of his children who were adults.
“The holding in Hile v. DeVries defeats the defendants’ argument that a constructive trust cannot be imposed when a beneficiary has been designated. Furthermore, the case illustrates that the one who is unjustly enriched need not be the one committing the constructive fraud in order for the trust to be imposed.
“The Court finds that a constructive trust should be imposed upon the KPERS accumulated contributions of $17,058.94 and all of the optional bfe insurance benefits paid for by Dale A. Rice which amount to $200,000.00. Under the terms of this trust, KPERS and SBL shall pay the proceeds to Beverly J. Rice. No constructive trust shall be imposed upon the basic group bfe insurance paid by Dale A. Rice’s employer. The $52,200 of basic group life insurance should be paid to the designated beneficiary, Janet Garrison. There is no evidence of a promise by Dale A. Rice to designate Beverly as the beneficiary of this portion of the insurance proceeds. Further, since this insurance was paid for by the employer, the same equitable arguments do not arise as arise under the accumulated contributions and optional group bfe insurance proceeds which were paid for by Dale A. Rice and Beverly J. Rice from joint assets.”
The district court went through the unusual facts herein and did not find there were any villains or bad guys. As the court stated, it did “not find that the actions of Dale Rice were intentional, in bad faith or with a purpose to deceive.” The district court, understandably, had great empathy for the financial worries which have added to Beverly’s bereavement. The court evidently concluded that Beverly had ended up being treated unfairly by Dale and determined to remedy the perceived wrong through its application of equitable powers. Did the district court err or abuse its discretion in invoking its equitable powers to invalidate Dale’s designation of beneficiaiy? We believe that it did.
A court of equity has broad but not unlimited powers to grant relief. Unlike Zorro or the Scarlet Pimpernel, a court under the guise of exercising its equitable powers may not right what it perceives as a wrong or unfairness absent an adequate equitable basis therefor.
As is stated in 30A C.J.S., Equity § 2, pp. 159-61:
“While a court of equity is a forum for the administration of justice, ‘equity’ is not synonymous in meaning with ‘justice’ or ‘natural justice,’ administered without fixed rules, although the terms have sometimes been so used. On the contrary, equity is a separate but incomplete system of jurisprudence, administered side by side with the common law, having its own fixed precedents and principles, now scarcely more elastic than those of the law. The formalism distinguishing law and equity is largely historical, but the underlying substantive concepts of the two have been retained in large measure.
“Equitable considerations do not clash with positive law and it is not ordinarily permissible to invoke them to unsettle established legal principles. The statutes and laws of the land are as much the law in a court of equity as in any other court.
“However, a court of equity is a court of conscience, and as such not to be shackled by rigid rules of procedure. All rules in equity must necessarily be sufficiently elastic to do equity in the case which may be under consideration. While courts of equity may exercise broad powers in applying equitable principles, their powers are not unlimited and may not be exercised in such a maimer as to deprive a person of constitutionally or statutorily protected rights.”
The same concept was expressed in Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 863 (2d. Cir 1985), in the following language:
“Moreover, even where equity jurisdiction exists, it generally is recognized that the equitable remedial powers of the court are not unlimited. Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 199, 92 S. Ct. 1477, 1485, 32 L.Ed.2d 1 (1972) (per curiam). ‘A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, or even without the authority of law.’ Rees v. City of Watertown, 86 U.S. 107, 122, 22 L.Ed. 72 (1874). ‘It cannot assume control over . . . imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations.’ Id. at 121. An equitable doctrine must of necessity‘comport to and remain compatible with the prevailing legislative intent.’ In re Fulghum Construction Corp., 706 F.2d 171, 173 (6th Cir.) (quoting In re Bell, 700 F.2d 1053, 1057 (6th Cir. 1983)), cert. denied, _ U.S. _, 104 S.Ct. 342, 343, 78 L.Ed.2d 310 (1983). ‘The plain mandate of the law cannot be set aside because of considerations which may appeal to referee or judge as falling within general principles of equity jurisprudence.’ United States v. Killoren, 119 F.2d 364, 366 (8th Cir. 1941) (quoting Southern Bell Telephone & Telegraph Co. v. Caldwell, 67 F.2d 802, 803 [8th Cir. 1933]). Finally, a court’s equity powers may not be exercised in such a manner as to deprive a person of constitutionally or statutorily protected rights. Carter v. Gallagher, 452 F.2d 315, 324 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); United States v. Haddix & Sons, Inc., 415 F.2d 584, 588 (6th Cir. 1969).
Hile v. DeVries, 17 Kan. App. 2d 373, 836 P.2d 1219 (1992), relied upon by the trial court, is clearly distinguishable. The deceased had signed a legally binding property settlement agreement to maintain his children as beneficiaries on $50,000 worth of life insurance. In contravention of this legal obligation, he changed the beneficiary on the policy to his new wife. The big issue in Hile was whether fraud had to be proven before a constructive trust could be imposed. It was undisputed that the deceased had changed the beneficiary on his insurance when he had no legal right to do so.
In the case before us, Dale had every right to designate Janet, his ex-wife, as his KPERS beneficiary in September 1983. In essence, the district court imposed the constructive trust herein because Dale failed to change the beneficiary when the court concluded he had an obligation to do so arising from his “promises” to Beverly.
The use of the term “promise” by the trial court is a misnomer. Black’s Law Dictionary 1213 (6th ed. rev. 1990) defines promise:
“A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made. A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct. Restatement, Second, Contracts §§ 2, 4.” (Emphasis supplied.)
By Beverly’s own testimony, Dale did not “promise” to make her his beneficiary. She testified as follows:
“Q. [Plaintiff’s attorney]: Did you ever seek any professional advice as to your financial affairs?
“A. We did several times. On three different occasions, we .did, you know, throughout our marriage.
“Q. Will you fix the time of the first such contact with a financial advisor of some sort?
“A. It was in ’86 or ’87. We went to a financial planner. I don’t think they’re there anymore, but it was in a building off from Wanamaker. Dale was real concerned about — he had taken his KPERS out, you know, when he left the State, and he was — he had started back to the State, and he kind of wanted to retire at 62, and he was real worried and upset. He wanted to make sure that he had enough to retire on, and so he was doubling his KPERS, because that was an opportunity that he had to do by going back to the State. So he was just really concerned about if he would have enough to be able to retire on at 62.
“And so we went to this financial planner, and we filled out a financial profile at that time, and we listed our assets, you know, on this financial profile jointly; and at that time, Dale had $100,000 worth of fife insurance, and then later that evening at home, we discussed exactly what we had. And at that point, you know, Dale reiterated that he had $100,000 worth of fife insurance, and that I would receive that, plus one and a half times his annual salary if he were to die, and also his retirement. And so that was the veiy first time that we talked, even really talked, about what he had.
“Q. Again, for the record, will you fix that time to the best of your ability?
“A. The best I can say was it was in ’86 or ’87. That’s the best I can do.
“Q. And after that, did you have any discussions with Dale further about any additional insurance benefits or optional group term insurance on either your life or his?
“A. Yes. Well, there were two occasions. We were coming home one evening from — I don’t know, a movie or something. I just remember we were driving in the car, and we were talking about how we wanted, you know, if one of us were to die, we talked about how we wanted things to go; and basically, I said, you know, everything that I have, of course, he’s the beneficiary of, and he knew that, and I just wanted some set aside for my nieces and nephews for their college funds, but the rest of it was his.
[Janet’s attorney]: “Objection, Your Honor. Could we have some time frame when this—
“A. ’90 or’91.
[Janet’s attorney]: “Thank you.
“A. And then at that point, he told me, Well, I want you to know that I have $100,000 worth of life insurance, and my salary times one and a half times, my retirement, and my Deferred Comp.,’ and I said, What about — what do you want me to do with your children?’ He said, We’ve always treated them fairly, and I know you’ll do so if I die.’ So then we said, Well, you know, we really ought to get this in writing. We really ought to do a will,’ and you know, he said, “Yeah, we should,’ but we never did.
“And, then, the other occasion was, we had been in our house for about six months. He came home from work in September of ‘89 and said he had just filled out an application for $100,000 more worth of life insurance, and this was to — you know, since we incurred this substantial debt with the house, he wanted to make sure that there was enough there to pay off the house if he died, and you know, to leave enough, if he had to have a long illness, or medical bills, funeral expenses, and to take care of me.
“And so, then, I said, ‘Well, you know, I don’t think I have enough, either, if I were to die first, you know, to cover the house mortgage for you,’ and so within the next day or two, I went to my employer, and I doubled my insurance so he would have enough to pay the house off if I were to die first. So that was the discussion then in ’89.”
Dale was not promising to do anything in these conversations. At most, the comments were just statements relative to acts previously done. Promises relative to KPERS benefits were not made or exchanged between Dale and Beverly. The evidence does not support the existence of a contract between Dale and Beverly whereby Dale had the obligation to change his designation of beneficiary.
Invalidating a deceased’s designation of his or her beneficiary on life insurance or pension benefits on equitable grounds is nothing to be undertaken lightly and would require some compelling factual situation not present herein. We conclude that the district court’s determination that Janet had been unjustly enriched and that a constructive trust should be imposed on the optional life insurance proceeds and the accumulated pension contributions constitutes an inappropriate exercise of the court’s equitable power under the facts herein and cannot stand. The district court’s refusal to invoke its equitable powers to invalidate Dale’s designation of beneficiary as to his basic group life insurance is affirmed.
We turn now to the issues raised relative to the district court’s August 25,1993, determination that Beverly had a right of election relative to the pension benefits pursuant to K.S.A. 59-602(2). This statute, in the form applicable herein, provides:
“Either spouse may will away from the other half of his or her property, subject to the rights of homestead and allowances secured by statute. Neither spouse shall will away from the other more than half of his or her property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator’s will as provided by law.”
This election issue arose as an alternative request for relief. Beverly contended that she was entitled to all of the three categories of KPERS proceeds. If she did not prevail thereon, she sought half of the proceeds in each category under authority of K.S.A. 59-602(2). Chronologically, the district court decided this alternative claim for relief first, holding that all three categories were subject to the right of election. When, later, the district court imposed a constructive trust on the accumulated pension contributions and the optional group term life insurance, it reaffirmed its earlier election ruling but held the later ruling controlling. Thus, Beverly received all of the proceeds of the two categories and Janet received the basic group term life insurance proceeds. KPERS and Janet contend the district court erred in holding the statutory right of election exists relative to any proceeds herein.
Beverly and Janet agree that K.S.A. 59-602 is inapplicable herein as Dale died intestate. Therefore, there is no will for Beverly to elect to take against. The correct statute is K.S.A. 59-504 which provides:
“If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
In order for the statute to apply the proceeds in question must properly be part of the decedent’s estate. It should be noted that Beverly J. Rice is also in this case as the Administratrix of the Estate of Dale A. Rice, deceased. The district court concluded that the KPERS benefits were in an inter vivos trust and accordingly, they were subject to K.S.A. 59-602.
The district court reasoned as follows:
“In this determination, the Court of Appeals analysis in McCarty v. State Bank of Fredonia is helpful. Following Shumway v. Shumway, 141 Kan. 835, 44 P.2d 247 (1935), the Court delineated three essential [requirements] ‘in creating a trust’:
1. An explicit declaration and intention to create a trust;
2. Definite property or subject matter of the trust;
3. Subsequent holding and handling of the subject matter by the trustee as a trust.
14 Kan. App. 2d at 557.
“In McCarty, the Court found that federal statutes created the trust. Id., citing 26 U.S.C. § 408(h). With regard to the KPERS retirement system, K.S.A. 74-4921 creates a trust.
‘There is hereby created in the state treasury the Kansas public employees retirement fund. All employee and employer contributions shall be deposited in the state treasury to be credited to die Kansas public employees retirement fund. The fund is a trust fund and shall be used solely for the exclusive purpose of providing benefits to members and member beneficiaries and defraying reasonable expenses of administering the fund.'
Id. (Emphasis added).
“Hence, the first element of the test is met. The second test can also be met because there is property in the trust. As the employee and the state make contributions toward the employee’s future pension, the employee’s funds are accounted for in an identifiable employee account. The third element of the McCarty test is also met in that the accounting and investment duties of the Board are similar to those of a trust. See, e.g., K.S.A. 74-4921. This characteristic is not changed by the fact that many of the benefits are funded under contract with insurance carriers because such plans were not within the control of Mr. Rice but of KPERS. K.S.A. 74-4927(B). Hence, it may be concluded there is a trust.
“The next critical inquiry is whether the transfer is revocable. The analysis in Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840 (1963), explains why this is essential and need not be repeated here. After that analysis, the Court stated:
“We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.’
192 Kan. at 333.
“The KPERS benefits must be analyzed to determine whether Mr. Rice maintained a power of revocation. The relevant statutes provide that upon disability, leave of absence, military leave or termination of employment, a participating employee, such as Mr. Rice, may withdraw from the trust those assets which the trust has accumulated and thereby revoke the trust. While the consequences of exercising this control are more harsh (i.e., quitting work) than with most other trust relationships, it is within the employee’s power to revoke the trust arrangement. Furthermore, employees may exercise options which allow additional benefits. These elections maybe revoked at anytime. Further, the employee retains the power to direct to whom benefits will be distributed. Hence, the conclusion reached in Ackers is applicable.
‘The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession.’
Id. at 333.
“It should be noted that the Court has not found any provision exempting KPERS from the application of the probate code, such as found from payable [on] death (POD) accounts] as determined in Snodgrass v. Lyndon State Bank, 15 Kan. App. 2d 546, 811 P.2d 58 (1991).
“Hence, applying Ackers and McCarty, the Court determines that the KPERS plan benefits are subject to the spouse’s right of election. Further, it should be noted that this result is consistent with federal law under ERISA which requires spousal consent if a beneficiary other than a spouse is named. 29 U.S.C. § 1055(c)(2).”
The district court then held the KPERS benefits were subject to Beverly’s right of election. Its rationale was expanded in its later constructive trust decision when it held:
“Furthermore, the Court notes the several arguments made by the other Defendants and notes: (1) Dale A. Rice did transfer a considerable amount of property to the trustee, a portion of which is retained by the trustee, by making fairly substantial premium payments which utilized money which would otherwise have been available to the joint finances of Beverly and Dale Rice; (2) while Dale A. Rice may not have explicitly executed a trust agreement, he did so implicitly by surrendering his assets to KPERS for the proper management and distribution of funds which by statute were held in trust, see K.S.A. 74-4921 (specifying that the funds are a ‘trust fund’) and K.S.A. 74-4927 (establishing a group insurance reserve fund created within the trust fund [K.S.A. 74-4927(4)(A)], empowering the KPERS Board to seek necessary appropriations, negotiate contracts and otherwise ensure the provision of insurance coverage); and (3) while the Rices were not married when the beneficiary designation was made, they were married when the bulk of the assets were transferred to the trust.
“Hence, the Court adopts the previous findings made in the memorandum decision of August 25, 1993.”
By statute KPERS operates a trust fund. K.S.A. 74-4921. It does not follow that participation in KPERS is the equivalent of creating a revocable inter vivos trust such as was discussed in Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988), and Taliaferro v. Taliaferro, 252 Kan. 192, 843 P.2d 240 (1992). Dale did not create a revocable inter vivos trust and then transfer marital assets thereto. By becoming a state employee, Dale was immediately enrolled in the basic group life insurance at no cost to him. This insurance program is administered by KPERS, and Dale designated Janet as his beneficiary. At the same time Dale also applied for the first $50,000 in optional fife insurance. Janet was the beneficiary therein, automatically. No one claims that Dale had no right to have Janet as his beneficiary at this time. After being employed by the State for one year, Dale was, by law, subject to the state pension plan administered by KPERS, and an amount over which he had no control was deducted each month as his KPERS contribution. As an employee cannot have different beneficiaries for different aspects of the KPERS package, no new beneficiary designation was necessary. As will be recalled, Dale and Beverly were not married on Dale’s first anniversary of his reemployment by the state. There is no claim that Janet’s being Dale’s beneficiary at this time is in any way improper. So Janet is the lawful beneficiary on all three elements — basic and optional life insurance and employee pension contributions on Dale’s first anniversary of employment.
The district court cites no authority for its conclusion that the purchase of optional term life insurance through KPERS is the transfer of assets to a trust in possible violation of a spouse’s statutory rights. The purchased insurance had no cash value, and KPERS acquired no title to property therein. The premiums paid provided coverage for specified periods of time. The payment of such premiums is just a current expense — not an asset transfer. The basic group insurance was wholly paid for by the state and involved no marital assets. The ruling of the district court, in effect, makes the purchase of group term life insurance through KPERS subject to a spouse’s consent if the beneficiary is other than the spouse of the insured.
We conclude the district court erred in holding that Dale’s basic group life and optional group life insurance were assets subject to the limitations set forth in the probate code (designated by the court as K.S.A. 59-602, but actually is K.S.A. 59-504).
This leaves the question of the propriety of the district court’s ruling as it relates to the accumulated pension contributions. For all but a month or two, Dale and Beverly were married during the period the deductions were being made from Dale’s paycheck for such contributions. So, essentially, these contributions were made from marital assets and represent a transfer thereof to a trust fund. However, the district court’s decision is premised on Dale’s participation in KPERS being the equivalent of his having created a revocable inter vivos trust and transferred assets therein to deprive his spouse of assets she would otherwise be entitled to. Dale did not create the KPERS trust. His contributions thereto were in the amount mandated by law as deductions from his paycheck. Dale’s participation was a required condition of his employment by the State of Kansas.
K.S.A. 74-4916(1) provides: “Upon the death of a member before retirement, the member’s accumulated contributions shall be paid to the member’s beneficiary.”
Janet was Dale’s beneficiary at the time of his death.
We conclude the district court erred in holding that Beverly had a right of “election” as to the accumulated pension contributions.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for entry of judgment consistent with this opinion.
Six, J., concurring in the result. | [
-112,
76,
-7,
94,
8,
98,
106,
10,
114,
-89,
37,
83,
105,
-6,
69,
121,
114,
13,
65,
104,
-13,
-78,
23,
-60,
-42,
123,
-7,
-51,
-71,
95,
-82,
-42,
77,
48,
2,
87,
102,
-126,
5,
28,
-114,
-122,
41,
-8,
88,
-126,
54,
107,
48,
13,
113,
-98,
51,
41,
53,
71,
76,
46,
73,
-88,
64,
-80,
-117,
-123,
127,
23,
-109,
-124,
-98,
71,
-48,
46,
-104,
-72,
40,
-24,
58,
-90,
-42,
116,
123,
-71,
9,
102,
98,
33,
-123,
-19,
-84,
-104,
7,
83,
61,
-27,
-98,
88,
99,
70,
-106,
-99,
116,
21,
6,
124,
-28,
21,
31,
-20,
2,
-50,
-58,
-111,
-115,
123,
-100,
11,
-17,
17,
34,
113,
-53,
-94,
93,
70,
58,
59,
-49,
-80
]
|
Abbott, J.:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Steven A. Kraushaar, respondent, a Marysville attorney who is the Marshall County Attorney, alleging multiple violations of the Model Rules of Professional Conduct (MRPC).
The respondent stipulated to the controlling facts and specific violations as set forth in Counts II, III, and IV of the formal complaint. Count I was dismissed by the Disciplinary Administrator.
COUNT II
In early 1990, while county attorney of Marshall County and having a statutory duty to prosecute child in need of care cases, respondent contacted a Social and Rehabilitation Services (SRS) employee who was conducting an investigation of a mother for possible neglect of her two children. Respondent informed the SRS employee he represented the mother and appeared with the mother as her attorney at a meeting with the SRS employee representing the mother’s interests in the child in need of care investigation.
Respondent stipulated that a conflict existed because he was county attorney and had a statutory duty to prosecute child in need of care cases and represented a client who was being investigated for possible neglect- of her children by SRS, all in violation of MRPC 1.7(a) (1994 Kan. Ct. R. Annot. 313) (the conflict of interest rule).
COUNT III
Respondent also stipulated he violated MRPC 3.5(d) (1994 Kan. Ct. R. Annot. 354), which prohibits a lawyer from engaging in undignified or discourteous conduct degrading to a tribunal.
Respondent stipulated that he had engaged in the following conduct:
A. Appearing in court in blue jeans, a tom shirt, and filthy.
B. Announcing to participants in litigation outside of the courtroom that he hoped the matter before the court would be concluded soon because he wanted to get drunk.
C. Discussing his sexual needs during a conference in chambers with Judge Elizabeth Carleen and defense counsel present.
D. During a hearing, jumping over the railing that separates the courtroom from the area for the seating of spectators and witnesses.
E. Making the statement during a sentencing that he did not care what the court did in response to a question from the court about the respondent’s recommendation for sentencing.
COUNT IV
The respondent, while county attorney, refused to file a child in need of care action at the request of the stepfather of a client who was terminally ill unless he was paid $1,000. The district court judge appointed a local attorney as special prosecutor (after the client’s death), who handled the child in need of care action.
Respondent stipulated that his demand he be paid $1,000 before he would file a child in need of care case violated MRPC 8.4(g) (1994 Kan. Ct. R. Annot. 379), which prohibits a lawyer from engaging in conduct that adversely reflects on his or her fitness to practice law, and further violated K.S.A. 19-705, which reads:
“No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individuals, 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 tiie same state of facts upon which any criminal prosecution, commenced but undetermined, shall depend; nor shall any county attorney while in office be eligible to or hold any judicial or other county office whatsoever.”
MITIGATION
The hearing panel found the following matters in mitigation:
a. Absence of prior disciplinary record.
b. Absence of dishonest or selfish motives.
c. Inexperience in the practice of law.
d. Remorse.
e. Acceptance of responsibility for his acts.
The hearing panel recommended that respondent be disciplined by public censure and that he appear in open court and personally apologize to Judge Elizabeth Carleen for his conduct. The office of the Disciplinary Administrator recommends that this court accept the recommendation.
All members of the court view respondent’s conduct as being more egregious than conduct where published censure is imposed. A majority of the court concludes that respondent’s violations are a severe breach of the Model Rules of Professional Conduct, but the violations are not of the kind and character that would warrant suspension from practice or disbarment.
It Is The Order Of The Court that the imposition of discipline against Steven A. Kraushaar be and hereby is suspended, and he is placed on probation for 2 years from the date of this opinion.
It Is Further Ordered that respondent not violate the Model Rules of Professional Conduct and that in addition to meeting his CLE requirements, he shall attend the 2-hour ethics program designed for county and district attorneys at both the 1996 spring meeting (to be held in Lawrence, Kansas) and 1996 fall meeting (to be held in Wichita, Kansas) of the Kansas County and District Attorneys Association. Respondent shall furnish the Disciplinary Administrator with proof of attendance.
It Is Further Ordered that respondent appear in open court and personally apologize to Judge Elizabeth Carleen for the conduct respondent stipulated to in Count III and furnish to the Disciplinary Administrator, at respondent’s expense, a transcript of the apology.
It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order will issue to respondent and this court will take whatever disciplinary action it deems just and proper without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas reports and that respondent pay the costs of these proceedings. | [
-80,
-4,
-84,
-52,
10,
97,
48,
36,
75,
-109,
-9,
115,
-23,
-26,
9,
115,
106,
59,
-47,
105,
-45,
-74,
115,
32,
102,
-13,
-16,
-41,
-78,
79,
-4,
93,
73,
-72,
-118,
-107,
-126,
-118,
-59,
-38,
-126,
15,
-120,
-40,
-47,
-61,
32,
111,
22,
11,
117,
14,
-85,
46,
61,
-29,
41,
104,
-3,
-71,
64,
-107,
-33,
-73,
94,
2,
-79,
-124,
-104,
5,
80,
58,
-104,
61,
-126,
-88,
49,
-78,
-126,
-10,
79,
-119,
-116,
118,
98,
-125,
1,
-27,
-24,
-99,
46,
31,
-100,
34,
-103,
88,
35,
-115,
-74,
-68,
116,
16,
11,
120,
-22,
70,
27,
104,
10,
-53,
-42,
-111,
-114,
36,
94,
-85,
-17,
-123,
20,
85,
-115,
-12,
86,
-41,
50,
-101,
-66,
-109
]
|
The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by Farm Bureau Mutual Insurance Co., Inc., (Farm Bureau) from a default judgment entered against Farm Bureau, which resulted from imposition of sanctions for its failure to comply with the district court’s discovery order. In an unpublished opinion filed December 16, 1994, the Court of Appeals reversed and remanded, and this court granted Joseph Hawkins’ petition for review.
Hawkins initiated this garnishment action against Farm Bureau to collect the unpaid balance of a judgment recovered against Christian Dennis for personal injuries arising out of a motor vehicle accident. In order to put this appeal in context, it is necessary to relate the factual background of the personal injury claim.
On the night of April 16, 1989, there was a collision between the automobile driven by Dennis and the motorcycle ridden by Hawkins. Dennis was attempting to pass a semi-trailer truck when he collided with Hawkins in Hawkins’ lane of travel. Hawkins sustained serious injuries which required the amputation of his left leg below the knee.
Dennis’ blood alcohol level was reported to be 0.15 percent. He pled nolo contendere to a charge of vehicular battery arising from the collision.
The automobile Dennis was driving belonged to someone elsé, who had consented to his use of it. A $100,000 liability insurance policy had been issued to the car owner by Farm Bureau. Although Farm Bureau initially denied coverage on the ground that the policy had lapsed due to the insured’s failure to pay the premium, the insurer later conceded coverage.
The accident report showed that Dennis’ vehicle came to rest on the east side of the highway. He told the investigating officers that he hit a car and did not know where it went.
In October 1989, Phil Ferry, a Farm Bureau adjuster, interviewed Dennis in jail. Dennis told Ferry that he had pulled out to pass a truck, thought he had enough time to complete the pass, and struck an approaching motorcycle before he could return to his lane of travel. Dennis also stated that he watched the motorcycle continue for approximately 14 mile until its rider got it stopped; he walked in that direction but was unable to find the motorcycle. He also stated that his automobile came to rest on the west side of the highway.
The district court stated that “Ferry made no attempt to resolve the discrepancies between Dennis’ statement given at the jail and the statement he reportedly gave the investigating traffic officers the night of the accident.”
On October 5, 1989, Hawkins filed suit against Dennis. After a jury trial, judgment was entered in Hawkins’ favor in September 1991 in the amount of $524,176.67. After Farm Bureau tendered its policy limit, an unpaid balance remained on the judgment in the amount of $422,488.52. Hawkins served a nonwage garnishment summons on Farm Bureau for the'excess judgment. By June 17,1993, when the district court entered default judgment against Farm Bureau in the garnishment proceeding, interest had swelled the balance to $474,864.65.
The discovery dispute occurred during the garnishment proceedings initiated by Hawkins against Farm Bureau. No appeal was taken from the personal injury judgment in the amount of $524,176.67. Hawkins’ request for- nonwage garnishment from Farm Bureau is based on the theory that the insurer is indebted to Dennis because it breached its duty to act in good faith and without negligence in representing him, which resulted in an excess judgment being entered against him. Due to Farm Bureau’s failure to produce documents as ordered, the district court ordered that Farm Bureau’s nonwage garnishment answer be stricken and prohibited the insurer from- defending itself in the garnishment proceeding. As a result, default judgment was entered against Farm Bureau in the garnishment proceeding in the amount of $474,864.65. In addition, $319,436.81 was awarded to Hawkins for costs and attorney fees pursuant to K.S.A. 40-256 on grounds that Hawkins’ evidence showed that Farm Bureau was negligent and acted in bad faith in conducting Dennis’ defense and in refusing without just .cause to pay the full amount of the loss. After Farm Bureau filed a notice of appeal from the judgment in the garnishment proceeding, Hawkins filed in the district court a second request for nonwage garnishment on Farm Bureau funds held by FirstBank. Before Farm Bureau’s supersedeas bond was approved by the Court of Appeals, and over the objection of Farm Bureau, FirstBank was ordered to pay and did pay $19,190.21 into the court, and it was disbursed to Hawkins.
With this background, we turn to Farm Bureau’s first claim, that the district court abused its discretion in striking Farm Bureau’s answer in the garnishment proceeding as a discovery sanction and entering default judgment. The discovery dispute with which we are concerned centered on Farm Bureau’s refusal to produce the original files of Farm Bureau employees Phil Ferry and Vernon Schwartz. Farm Bureau’s failure to answer interrogatories and produce other documents had been the subject of Hawkins’ first motion to compel discover)?, which was filed in July 1992, and which was granted by the district court’s order of August 13, 1992. It appears that Farm Bureau complied in part with this order, but some documents which were ordered produced remained in contention during the subsequent discovery dispute. An unpaid fine also clouded the proceedings.
The discovery process, described as “tortuous” by the Court of Appeals, started on July 24, 1992, when Hawkins filed a motion to compel discover)? due to Farm Bureau’s failure to respond to a request for documents and interrogatories. What followed is set out in the Court of Appeals opinion as follows:
“A hearing on Hawkins’ motion to compel was noticed for August 5, 1992. Farm Bureau did not appear at that hearing. The trial court, after concluding that notice of the hearing had been reasonable, granted Hawkins’ request and ordered Farm Bureau to respond on or before August 25, 1992. The court also awarded $400 in attorney fees and expenses.
“The requested documents and interrogatories were mailed on August 25, 1992. After reviewing the interrogatories, Hawkins’ counsel found that a set of the interrogatories had not been signed and documents that were to be attached to the interrogatories were not attached. It was later discovered that defense counsel had erroneously given Hawkins an unsigned draft copy of the original interrogatories.
“A controversy would later arise as a result of two of the answers to the request for documents. Request number 6 sought all claims manuals or other publications setting out the policies and procedures for investigating and adjusting automobile liability claims. Request number 7 sought all manuals or other written materials describing the procedures for handling third-party liability claims believed to be in excess of the liability insurance limits provided by the policy.
“Farm Bureau’s response to both requests was that no such documents had been located that were in use at the time of the accident, the claim, or the suit. Farm Bureau later claimed it did not produce certain manuals because they were not current and, therefore, not within the scope of the interrogatories.
“A second confrontation over discovery occurred on November 19,1992, which is pivotal in this appeal. Hawkins’ counsel was taking the deposition of Ferry. Pursuant to a subpoena, Ferry brought his original file to the deposition. Ferry’s original file was marked as Hawkins’ Exhibit number 1. A second file belonging to Ferry’s supervisor, Vem Schwartz, was marked as Hawkins’ Exhibit number 2.
“At the conclusion of the deposition, Hawkins’ counsel requested that Exhibits 1 and 2 be given to the court reporter to be copied and the copies attached to the deposition. Farm Bureau’s counsel, Mr. Hasty, refused and withdrew the originals. Farm Bureau argued that Hawkins had been given the opportunity to verify the copies that had been produced previously were copies of the originals and had been given the opportunity to compare those with the original file documents present at the deposition. The following colloquy took place between opposing counsel:
‘MR. WILLIAM GRAYBILL: I offer both Plaintiff Exhibits 1 and 2. That’s all the questions I have.
‘(Whereupon, an off-the-record discussion was had, after which the following proceedings were had:)
‘MR. WILLIAM GRAYBILL: Well, I’m offering the exhibit. They should be part of the deposition. We would request that the court reporter take the files and copy them and send them back, the originals, back to Farm Bureau.
‘MR. HASTY: We will keep the originals. If you want a copy, we will send it to you. We already sent you one.
‘MR. JACOB GRAYBILL: The copy we have received is not a copy of the material that was presented here this morning.
‘MR. HASTY: I couldn’t speak to that.
‘MR. JACOB GRAYBILL: That’s why we want the court reporter to copy that, what was presented here this morning.
‘MR. HASTY: I understand what you say, but we will keep the original. We will send you another copy if you like, and we will send you a bill for this one of Mr. Jake Graybill’s unless the court reporter does it. We have no way of knowing whether it’s been accurately copied or not.
‘MR. HASTY: I’m not going to argue with you. We are going to withdraw the exhibit.
‘MR. WILLIAM GRAYBILL: Well they are here — they are here pursuant to a subpoena.
‘MR. HASTY: I’m not arguing with you either.
‘(Whereupon, Hawkins’ Exhibits [Nos.] 1 and 2 were retained by the' witness, after which the deposition was concluded.)’
“On December 14, 1992, Hawkins filed a second motion to compel discovery. He moved the court for an order striking Farm Bureau’s pleadings and entering a default judgment as provided by K.S.A. 60-237(b)(2)(C). In the alternative, Hawkins requested that the court compel Farm Bureau to produce the original of Exhibits 1 and 2 to be annexed to Ferry’s deposition. Finally, Hawkins requested an order compelling Farm Bureau to produce the manuals and other documents, the existence of which had been denied, that had been requested on May 7, 1992. Notice was given that a hearing on the matter would be held on January 6, 1993.
“On January 6, 1993, Farm Bureau again failed to appear. Nevertheless, the trial court proceeded. In an order filed January 14,1993, the court issued a second order compelling discovery. The court found Farm Bureau had failed to produce the manuals or documents describing the policies and procedures for investigating and handling such a claim, in violation of the court’s order that they be produced by August 22, 1992. The court renewed its order that these items be produced.
“With regard to Exhibits 1 and 2, the court found that ‘[p]laintiff properly moved to annex the Exhibits as part of file deposition. The Garnishee, without having complied with the provision of K.S.A. 60-230(f)(1) arbitrarily and without legal authority withdrew said exhibits and refused to allow the court report to annex the same to the deposition.’ The court then ordered:
‘2. The garnishee shall deliver prior to January 22,1993, the complete original files of Phil Ferry and Vernon Schwartz which were marked as Exhibits 1 and 2 respectively to the deposition of Phil Ferry to . . . the Court Reporter before whom tbe deposition was taken. Said originals are to be annexed to the deposition of Phil Ferry by die Court Reporter. In the event Garnishee fails to comply with diis order by January 22,1993, die parties are hereby notified that the court will consider entering judgment in favor of [Hawkins] on February 2, 1993.’
In addition, the court awarded Hawkins $750 as a sanction for failure to comply with discovery. The $750 was to be paid by January 22, 1993.
“The order further gave notice of a hearing to review Hawkins’ motion for a default judgment on February 2,1993. However, due to a last minute motion for a continuance by Farm Bureau, the hearing was rescheduled for February 9,1993. At die February 9 hearing, Hawkins advised die court that on January 22, 1993, he had received two packages from Farm Bureau. The packages contained several items, including what appeared to be Exhibits 1 and 2 of Ferry’s deposition, a copy of die reinsurance policy, a claims manual, and signed interrogatories.
“Hawkins’ counsel offered several objections to die items diat were produced on January 22, 1993. First, the section of the claims manual that dealt widi the procedure for handling personal injury claims was missing. After determining that a section was missing, Hawkins’ counsel wrote Farm Bureau regarding the omitted section. Farm Bureau claims it dien faxed die missing section to Hawkins’ counsel. As of February 9, 1993, Hawkins’ counsel maintained he still had not received the missing section of die claims manual.
“On February 9, 1993, Farm Bureau had not yet paid the $750 sanction the court had ordered to be paid on or before January 22,1993. Farm Bureau argued that ‘[w]ith regard to die sanctions, [it] received no such order. What [the trial judge] did was enter a judgment, which is different than that order for payment.’
“Hawkins’ counsel also argued that Exhibits 1 and 2, the files of Ferry and Schwartz respectively, had been altered and were incomplete. With respect to Exhibit 1, Farm Bureau had apparently ordered the pages of Ferry’s file be numbered. When Hawkins’ counsel received Exhibit 1, certain sequential pages were not present. Farm Bureau later attributed the gaps in the pages to the mistakes of a paralegal when numbering the pages.
“The file produced on January 22, 1993, was supposed to be Exhibit 2, the original file of Schwartz. However, it turned out to be a copy of a different file, the ‘master file.’ After concluding the purported Exhibit 2 was not the correct file, Hawkins’ counsel noticed differences between the erroneously produced ‘master file’ and the copy of the ‘master file’ that Farm Bureau had produced months earlier. Farm Bureau’s only explanation was a guess that the paralegal somehow got confused.
“The trial court reserved ruling on Hawkins’ motion to strike Farm Bureau’s pleadings and enter a default judgment. The trial court stated:
‘I’m going to reserve ruling on this motion ... to strike pleadings and grant default judgment. And I’m going to give Farm Bureau fifteen days to fully comply with the discovery orders that have been issued in this matter. And I want it to be clearly understood that if those orders are not complied with, that I will grant the motion to strike and the motion for judgment. ... So, this is Farm Bureau’s absolute last chance.’
“On March 3, 1993, a hearing was held to determine if Farm Bureau had fully complied. Hawkins’ counsel argued that Farm Bureau had still failed to comply with the court order. Farm Bureau had not yet paid the $750 sanction. It maintained the reason for not paying was to avoid acquiescence in the judgment, which would preclude raising the issue on appeal.
“There were problems with Exhibit 1, the file of Mr. Ferry. Several items were missing from the file. Included in the list of items missing was Ferry’s original claims log, which apparently consisted of one page. Farm Bureau acknowledged that Hawkins had not received the original claims log. It had been lost. However, both parties had a copy.
“Hawkins’ counsel was also concerned that Exhibit 1 was missing a total of 17 pages. Farm Bureau argued that the pages were not missing, but rather attributed the gaps in the page numbers to the mistakes of a paralegal when numbering the pages. The paralegal allegedly used some of the missing numbers on items that were not part of the Exhibit 1 file. Because Farm Bureau had refused to allow the court reporter to copy Exhibits 1 and 2 and the time of Ferry’s deposition, it was impossible for Hawkins’ counsel to verify that all the documents in Exhibit 1 had been produced.
“The trial court stated: T have some real concerns where there is a dispute over withdrawing original documents at a deposition, over one party withdrawing those without consulting with the Court for a decision on that particular matter. It just invites this type of problem.’ The trial court ordered Farm Bureau to produce copies of the documents which had received the missing numbers.
“On March 12, 1993, Hawkins took the deposition of Gary Hinton, Claims Manager for Farm Bureau. His deposition testimony indicated that Farm Bureau had written policies and standards for the prompt investigation of claims. Farm Bureau had consistently denied the existence of such materials. Farm Bureau subsequently acknowledged that ‘giving the Hawkins’ request a reasonable interpretation, [die guidelines] probably were covered’ by the May 7, 1992, request for documents.
“On March 17, 1993, Hawkins filed a third motion to compel discovery. Hawkins again asked die court to strike Farm Bureau’s pleading and enter a default judgment. In the alternative, Hawkins requested an order compelling production of all material constituting written standards for the prompt investigation of claims arising under its insurance policies.”
On April 19, 1993, counsel and the district court judge had a telephone conference in which the attorneys again presented their arguments on the second order compelling discovery.
Referring to the district court’s order, Hawkins’ counsel stated in leading off the telephone arguments that the first requirement (to produce manuals and policies) had been met on March 12, that it was impossible to tell whether production of the Ferry and Schwartz files was complete due to Farm Bureau’s failure to follow the procedure spelled out in the second requirement, that the claims log had been produced on March 16, and that the $750 fine which was the subject of the third requirement had not been paid. Farm Bureau’s counsel took the position that all discovery issues were ruled on and/or moot. With regard to missing numbers, he stated: “[W]e didn’t use all the numbers and that doesn’t make any difference either. Some of the pages that were not produced were not part of the original files, but they were numbered and I sent those to the Court in camera.” The district court judge informed him that they had not been attached or enclosed with counsel’s letter. Farm Bureau’s counsel rejoined:
“That’s the first I heard of that, Judge. Obviously the letter says they were there, and as far as I knew they were. In any event, there is no document that’s missing, there is no document that was not produced. . . . Everything has been located and it’s all been produced in original form. Plaintiff’s only complaint is that he didn’t — all °f the numbers weren’t used and I just don’t see that as a complaint about discovery.”
Hawkins’ counsel pointed out that the number stamped on the claims log was 62, which was one of the numbers he had listed as missing from among the copies of documents in Ferry’s file. The suggestion seems to be that Farm Bureau’s counsel’s explanation for the absence of documents with numbers from the sequence— that all the numbers were not used — did not explain why document 62 was not produced and may not explain why others remain missing. That is, the claims log, a document stamped with one of the missing numbers, was specifically remembered because it was on purple paper. After it was specifically identified as missing and requested by Hawkins’ counsel, it was produced. Hawkins’ counsel likely would not have been able to specify documents without such distinguishing features.
At tire conclusion of the telephone conference, the district court judge announced that he would grant die motion. He stated:
“I’m going to strike ail of Farm Bureau’s pleadings including the non-wage garnishment answer filed herein, I’m going to prohibit Farm Bureau from presenting any claims asserting any defenses or presenting any evidence in relationship to the plaintiff’s claim in the garnishment action and I’m going to order a default hearing so that the plaintiff can present evidence in support of his claim that Farm Bureau breached its duty as an insured to act in good faith and without negligence in handling the defense and representation of its insured Chris Dennis and we just need to pick a date for that hearing.”
After considerable effort to find a date on which both Farm Bureau’s counsel and the district court judge were free, Farm Bureau’s counsel suggested June 17, 1993, and the default hearing was scheduled to begin that morning. On May 28, 1993, a journal entry was filed which stated in pertinent part:
“It is Therefore Ordered, Adjudged and Decreed that all of the Garnishee’s pleadings filed herein including its Non-wage Garnishment Answer are hereby stricken from the record; the Garnishee is hereby prohibited from presenting any claims, asserting any defenses, or presenting any evidence in relationship to the Plaintiff’s claims in this action.
“It is the Further Order of this Court that the Plaintiff’s evidence supporting his claims that the Garnishee breached its duty as an insurer to act in good faith and without negligence in the handling, the defense and representation of its insured, Christian Dennis, will be heard and considered by this Court at die Stanton County Courthouse, Johnson, Kansas on June 17, 1993 at 9:30 a.m.”
Before the scheduled hearing, Hawkins filed a motion for default judgment and an award of attorney fees and expenses pursuant to K.S.A. 40-256.
On June 17, Farm Bureau’s counsel, Paul Hasty, did not appear because he was involved in a jury trial in another district. A motion for continuance had been faxed to the court, but no hearing had been requested, and Hawkins had not had an opportunity to respond. On a previous occasion, Farm Bureau’s counsel had been told by the district court judge that ex parte motions to continue were not granted and the procedure for calling up a motion for hearing in order to get the court to act on it had been explained. An attorney from Hasty’s office who was not familiar with the case made an appearance on behalf of Farm Bureau and urged the court to delay the proceeding. Hawkins’ counsel opposed continuing the hearing to a later date because he had witnesses scheduled to appear, Hawkins had cut short his vacation in order to be there, no effort was made until the last minute by Farm Bureau’s counsel to obtain a continuance and that effort was ineffectual, and this request was simply a perpetuation of the pattern which had come to dominate the case. The district court judge noted that as late as June 8, Farm Bureau had filed a motion to set aside the court’s ruling of April 19, no hearing date had been requested for it, and no motion to continue had accompanied it. The district court denied the motion for continuance as being untimely and unjustified. Hawkins presented evidence. Counsel for Farm Bureau was given 10 days to make counter-designations of portions of depositions not read by Hawkins’ counsel. The parties were given 55 days to submit proposed findings of fact and conclusions of law. On September 8, 1993, the district court filed its findings of fact and conclusions of law and journal entry granting judgment against garnishee Farm Bureau in the amount of $474,864.65 as a consequence of its nonwage garnishment answer having been stricken. A $319,436.81 award of attorney fees and costs, which is also the subject of this appeal, was made pursuant to K.S.A. 40-256.
K.S.A. 60-237(b)(2) provides in pertinent part:
“If a party . . . fails to obey an order to provide or permit discovery, . . . the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
“In lieu of any of the foregoing orders or in addition thereto, the judge shall require the party failing to obey the order or the attorney advising him or both to pay die reasonable expenses, including attorney’s fees, caused by die failure, unless die judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” ■
On appeal, Farm Bureau contended that it had complied with the district court’s discovery order. It further argued that the district court had not found a refusal to comply, but instead found only that it could not determine whether there had been compliance. Farm Bureau relied on Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P.2d 248 (1970), for the proposition that the district court’s finding was insufficient as a matter of law to support the sanction of default judgment. Farm Bureau argued that imposition of the sanction of default judgment requires a willful or deliberate refusal to comply.
The Court of Appeals did “not question the imposition of serious sanctions by the court for Fann Bureau’s repeated and almost inexplicable breaches of our discovery rules.” The Court of Appeals, however, did express the opinion that “Farm Bureau has quite possibly produced that which has been requested through discovery.” The Court of Appeals stated:
“The trial court did not find the discovery had not been produced, but only that there are still some unresolved questions as to its completeness. The court’s skepticism and caution in accepting Farm Bureau’s protestations of compliance is certainly understandable given the either slovenly or cavalier approach to discovery it has had to deal with. However, striking the garnishee’s defenses, entering judgment against it for $474,864,65 plus attorney fees of $316,576.43 (a figure not explained by the court) and costs of $2,860.38, on a claim which may be defensible, appears to be excessive.”
The case was remanded with directions to the trial court to make “further inquiry” into the missing numbers.
Hawkins points out that Farm Bureau had not taken advantage of several opportunities given to it by the district court to come forth with support for its explanation of the missing numbers and establish that it had not acted in bad faith. For example, the district court directed Farm Bureau’s counsel to provide the documents he had referred to which were not part of either the Ferry or Schwartz files but had been stamped with numbers in the sequence. Although Farm Bureau’s counsel represented that he had located documents of this description and sent copies to the district court judge, they never surfaced. For another example, Farm Bureau’s counsel never offered the testimony or affidavit of the paralegal who could have explained how and why and which pages were numbered. Hawkins quotes the following principle from Armstrong v. City of Salina, 211 Kan. 333, 339, 507 P.2d 323 (1973):
“Failure of a party to an action to throw light upon an issue peculiarly within his own knowledge or reach, raises a presumption that the concealed information is unfavorable to him. The presumption, of course, is open to explanation. (Londerholm v. Unified School District, 199 Kan. 312, 430 P.2d 188; Blackburn v. Colvin, 191 Kan. 239, 380 P.2d 432; In re Estate of Grisell, 176 Kan. 209, 270 P.2d 285; and Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P.2d 652.)”
It is well established that the imposition of sanctions for failure to comply with discovery orders is a matter within the discretion of the trial court and that the decision to impose sanctions will not be overturned unless that discretion has been abused. Lorson v. Falcon Coach, Inc., 214 Kan. 670, Syl. ¶ 3, 522 P.2d 449 (1974). In State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995), we stated:
“Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).”
In Lorson, this court declared that “where there is evidence that a party has acted in deliberate disregard of reasonable and neces sary orders of a court, and where such party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed.” 214 Kan. 670, Syl. ¶ 3. Additional principles to aid in ascertaining whether the district court abused its discretion emerge from decisions involving the sanction of default judgment. The sanction should be designed to accomplish the objects of discovery rather than for the purpose of punishment. Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 328, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978). Where the party failed to comply due to inability to do so rather than bad faith, a severe sanction such as dismissal or default probably would be inappropriate. Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 7, 531 P.2d 113 (1975). The object of the sanction should be to prevent the noncomplying party from profiting from its violation of the court’s order and to protect the party which had requested discovery. Fields, 2 Kan. App. 2d at 328. In Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 987, 637 P.2d 431 (1981), the following tests were identified in determining whether the trial court has abused its discretion in granting default judgment for failure to comply with discovery orders: “(1) whether the discoverable material goes to a dispositive issue in the case; (2) whether alternative sanctions sufficient to protect the party seeking discovery were available; [and] (3) whether the requested information was merely cumulative or corroborative.” See also Wenger v. Wenger, 239 Kan. 56, 716 P.2d 550 (1986) (counterclaims dismissed and default judgment entered for continued failure to make discovery); Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982) (default judgment entered after repeated unsuccessful attempts to force defendant to comply with discovery orders).
The essence of discovery is a search for the truth. It is not a game but an enlightened procedure to encourage the resolution of cases based on merit and not on surprise and ambush. To that end, a party may be compelled to disclose relevant information, not privileged, within his or her knowledge or possession. Disclosure is required if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Here, the Court of Appeals assured itself that “Farm Bureau has quite possibly produced” all that was required but, on the other hand, recognized Farm Bureau’s “almost inexplicable breaches of our discovery rules.” It is the latter which is the basis of the trial court’s judgment. It is Farm Bureau’s deliberate and unwarranted breach of the discovery rules which makes it impossible to determine if Farm Bureau has in fact fully complied as ordered.
Hawkins points out that there were discrepancies between the contents of the original files which were marked at the deposition and the copies of documents which were produced and that, without the originals, he was unable to determine how closely the copies matched those in the deposition exhibits. We note that Farm Bureau blames the postal service for any problems with delivery and the paralegal for any errors occurring in its attorney’s office. Such unsupported statements by counsel are not evidence of excusable neglect or good faith.
In the present case, ample opportunity was afforded Farm Bureau to show good faith or excusable neglect. Assessment of fines, an alternative sanction, had proved to be ineffective. Although Farm Bureau asserted that it had produced all the documents from the files of Ferry and Schwartz and thus was unable to produce anything more in order to comply with the court’s order, it had created the circumstances which gave rise to the appearance of bad faith and had ignored the opportunities to prove otherwise. No other sanction has been suggested which would prevent Farm Bureau from profiting from its conduct and protect Hawkins. Hawkins’ claim of bad faith and negligent representation of Dennis hinged on proof from the disputed material, the contents of the claims adjusters’ files. The material was available from no other source. As in Independent Mfg. Co., the trial court specifically warned Farm Bureau’s counsel that failure to comply would result in imposition of the very sanctions which ultimately were imposed. See 6 Kan. App. 2d at 988. Moreover, in the present case, repeated warnings were given and repeated opportunities were afforded to an unheeding Farm Bureau.
After careful review of the record, we conclude that there is sufficient evidence to support a finding of a willful and deliberate disregard by Farm Bureau for the discovery order of the district court. The district court’s order striking Farm Bureau’s nonwage garnishment answer and then entering default judgment was the last resort for closing protracted litigation which had been unduly prolonged by Farm Bureau’s unwarranted and contemptuous conduct. The district court repeatedly advised Farm Bureau of the consequence of its persisting in failing to justify the apparent failure to produce relevant documents. We find no abuse of discretion in the imposition of sanctions by the district court.
Since we find no abuse of discretion, it is not necessary to address Hawkins’ contention that payment into the court and disbursal to him of $19,190.21 in Farm Bureau funds constituted acquiescence by Farm Bureau in the default judgment.
Farm Bureau also challenges the district court’s granting Hawkins attorney fees pursuant to K.S.A. 40-256, which provides in pertinent part:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company . . . any policy or certificate of any type or kind of insurance, if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorneys fee for services in such action.”
Pursuant to this statute, the district court ordered that judgment be entered against Farm Bureau in the amount of $319,436.81, which is $316,576.43 for attorney fees and $2,860.38 for costs “recognized by K.S.A. 60-2002.” Material items which are allowable as costs by K.S.A. 60-2002 are tire docket fee, reporters’ charges for taking depositions used as evidence, and other costs authorized by other statutes, such as K.S.A. 40-256, to be taxed as costs.
In its conclusions of law, the district court wrote that “it is not necessary to resolve the issue of whether Farm Bureau was guilty of neghgence or bad faith to determine whether Farm Bureau is liable for the judgment entered against Dennis” because Farm Bureau was in default after having its nonwage garnishment answer stricken. The issue, however, is germane to the award under K.S.A. 40-256.
The authority principally relied on by the district court in its analysis of Farm Bureau’s conduct was Smith v. Blackwell, 14 Kan. App. 2d 158, 791 P.2d 1343 (1989), rev. denied 246 Kan. 769 (1990). The district court summarized the rules from that case as follows:
“Where an insurer fails to make a sufficient investigation or properly evaluate a claim; fails to notify the insured of offers to settle within policy limits; fails to give consideration to the insured’s financial risk; fails to negotiate reasonably and go forward with settlement action, or make effective attempts to settle; and fails to recognize that its omissions and commissions make defense of a bad faith and negligence action for recovery of an excess verdict untenable, Smith v. Blackwell, supra, directs the trial court to find that the insurer refused without just cause or excuse to pay the full amount of such loss, and award attorney fees pursuant to K.S.A. 40-256.”
The district court found that Farm Bureau twice failed to notify Dennis of policy limit offers of settlement from Hawkins and waited more than a year after determining that the value of Hawkins’ claim exceeded the policy limit before attempting to negotiate a settlement. The court concluded:
“Farm Bureau was negligent and acted in bad faith in conducting the defense for its insured and its subsequent refusal to recognize its responsibility to respond to the excess amount of the judgment obtained against its insured was, and is, unfounded, frivolous, arbitrary and capricious and is tantamount to a refusal without just cause or excuse to pay the full amount of the loss.”
Farm Bureau relies primarily on Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990), in arguing that the evidence before the district court did not support its conclusion. Glenn prosecuted a garnishment action against Fleming’s automobile liability insurer in an attempt to collect a judgment in excess of policy limits. In Glenn, the claim against the insurance company was based strictly on bad faith, rather than on negligence and bad faith, as in the present case. Thus, the court reviewed.the evidence for “Something more than mere error of judgment.” 247 Kan. at 305-06. Summary judgment was granted for Fleming’s liability insurer because bad faith liability could not be based on an unreasonable offer of settlement, and the offer was unreasonable because it was premature, it was conditional, and it was “only open for two weeks.” 247 Kan. at 307. This court agreed.
Likening the circumstances of the present case to those of Glenn, Farm Bureau contends that its rejection of the first offer extended by Hawkins to settle for the policy limit was justified because the offer was premature and unreasonable. That offer was transmitted by a letter dated July 31, 1989, from Hawkins’ attorney to Phil Ferry, senior claims adjuster with Farm Bureau. The letter was written about 3% months after the accident which necessitated amputation of Hawkins’ left foot and lower leg. No suit had been filed. Hawkins’ attorney was aware that Farm Bureau was disclaiming coverage. Hawkins offered to accept the policy limit for release of the car owner, Dennis, and Farm Bureau. In the concluding paragraph of the letter, it was stated: “If I do not hear from you within seven (7) days of the date hereof, I will assume that Farm Bureau takes the position that there is no coverage for this accident under any of it’s [sic] policies and will proceed with suit against the culpable parties.” Farm Bureau did not respond.
In this regard, the district court stated only that “Farm Bureau initially denied that it provided coverage to Dennis for the plaintiff’s claim; it subsequently reversed that decision and began directing his defense without his knowledge and without informing him that it had changed its position with regard to coverage.” In other words, the district court did not make a specific factual finding as to what the insurer’s position was at the time of the settlement offer. It reasonably may be inferred from the district court’s finding that Farm Bureau was denying coverage at the time of the July 1989 offer. This view is supported by the deposition testimony of Ferry, which was read into evidence, that he had been told by the local Farm Bureau agent within a few days of the accident that the premium on the policy had not been paid. Thus, when he received the letter offering settlement, he put it in his file and notified no one. The most significant finding made by the district court with regard to Farm Bureau’s position at the time of the letter is that it was due to the insurer’s failure to undertake an investigation in a timely and good faith manner that Farm Bureau did not know at the time of the setdement offer that there was cov erage. Thus, the district court viewed Farm Bureau’s lack of response to the letter less as a matter of what the insurer knew than what the insurer should have known through the exercise of due diligence. This seems appropriate in the examination of the insurer’s conduct for the purpose of adjudicating a claim of negligent and bad faith representation. Indeed, it may be appropriate in any examination of the insurer’s representation. For example, in Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 166, 804 P.2d 1012, rev. denied 248 Kan. 997 (1991), the Court of Appeals expressed the view that the insurer’s duty may be suspended “when there is a good faith question as to whether there is coverage.” The corollary of this observation would be that the insurer may not be relieved from its duty to the insured in the absence of a good faith question of coverage.
In the present case, the offer was made within a few months of the accident, before suit was filed, and, of course, before there had been any opportunity for discovery. In Glenn, Glenn’s letter was unreasonable because he “offered to settle the case and dismiss Fleming from the suit for a payment of $25,000, receipt of the valves from the propane tank, and an opportunity to talk to Fleming informally.” 247 Kan. at 299. In addition, the offer was extended only for 2 weeks. In the present case, the letter from Hawkins’ counsel to Ferry offered to release the car owner, Dennis, and Farm Bureau for $100,000. The offer was open for 7 days. Farm Bureau argues that the 7-day restriction on a $100,000 demand is unreasonable on its face and as measured by the Glenn standard. Hawkins points out that his offer was not withdrawn after 7 days and that he did not file suit until October 5, 1989. A comparison does not seem productive, however, because we do not know how Glenn’s letter was worded. We do not find Hawkins’ offer to be unreasonable, but, even if we did, Glenn is not dispositive because there, the court concluded that the premature and unreasonable offer could not give rise to bad faith liability, and there was no allegation of negligence. Here, we must also consider whether Farm Bureau’s conduct in the circumstances was negligent.
Farm Bureau argues that resolution of this entire issue rests on the court’s characterization of the July 1989 offer. It argues that a finding that it is not blameworthy for not responding to the offer frees Farm Bureau of liability “because there can be no showing of prejudice to Mr. Dennis for failure to settle.” Farm Bureau suggests that, in the absence of a reasonable offer to settle, “there is no causal connection between the insurer’s conduct and the fact that the judgment was in excess of the limit.” Farm Bureau cites Snodgrass as authority. In fact, Snodgrass does stand for the proposition that there must be a causal link between the insurer’s conduct and the excess judgment against the insured, and the conduct in that case was rejection of a settlement offer, but it is clearly stated in the opinion that that is only one of the circumstances in which an insurer may be liable for an excess judgment. 15 Kan. App. 2d at 165.
In the present case, the district court found that Farm Bureau was negligent in its handling of the claim in all the following particulars:
“a. Farm Bureau became aware of the claim in April of 1989 and delayed until at least July 7, 1989 to commence an investigation to determine whether there was coverage for the loss. A timely and good faith investigation would have revealed there was coverage;
“b. After reversing its initial decision not to provide coverage it did not inform Dennis of that decision;
“e. It did not inform Dennis that an offer to settle the claim for $100,000 had been made;
“d. Its claim representatives ignored, and made no attempt to investigate significant discrepancies between Dennis’ version of the accident given to Phillip Ferry in a statement at the Stanton County Jail, and statements Dennis had given to investigating traffic officers at or near the time of the accident.
“e. Between April 16,1989 and June 12,1991 Farm Bureau failed to make any attempt to negotiate a settlement of the claim, and failed to conduct an investigation adequate to permit its claim representatives who were responsible for the ultimate evaluation of the claim to make an informed evaluation;
“f. Farm Bureau made no attempt to encourage settlement negotiations until June 12, 1991;
“g. Farm Bureau failed to advise Dennis of plaintiff’s proposal to allow him to confess judgment in settlement of the claims against him.”
Farm Bureau attempts to explain delay in attempting settlement negotiations by asserting that there were genuine questions about Dennis’ liability. Those questions were based on Hawkins’ “oper ating his motorcycle within three feet of the centerline” and having a blood alcohol level of 0.09 percent. There is no question that Dennis was driving his vehicle on the wrong side of die road. It is absurd, therefore, to suggest that Hawkins’ driving 3 feet inside his own lane equalizes Dennis’ fault. Farm Bureau seems to put some stock in Dennis’ statement to Ferry that he had nearly completed passing a truck and was trying to get back in his lane when he hit Hawkins. The district court, however, viewed Farm Bureau’s reliance on the more favorable statement as another instance of negligent conduct. The district court was of the view that it was Farm Bureau’s duty to investigate the discrepancies between Dennis’ statement to Ferry and his statement to investigating officers closer to the time of the accident. With regard to the blood alcohol level, the district court found that Dennis’ blood alcohol level was reported to be 0.15 percent, higher than Hawkins’ and higher than the legal limit for driving.
Farm Bureau attempts to shift its failure to maintain communications with Dennis to Dennis’ failure to maintain contact with it. Farm Bureau asserts that it did not know how to get in touch with Dennis. There is no support for this assertion in the record on appeal.
In addition to contending that it did not refuse without just cause or excuse to pay the full amount of the judgment against Dennis so that an award of costs, including attorney fees, was improper under K.S.A. 40-256, Farm Bureau argues that the amount of the fee award is unreasonable. As a consequence of the default judgment being entered in his favor in the garnishment proceeding, Hawkins was awarded $474,864.65, which represented the amount of the unpaid personal injury judgment plus interest. Under K.S.A. 40-256, he was awarded the costs of the action. These included $2,860.38 pursuant to K.S.A. 60-2002 and attorney fees of $316,576.43. Farm Bureau does not complain about the $2,860.38. With regard to the attorney fees, based on Hawkins’ counsel’s report of nearly 522 hours expended on prosecution of the action to recover the excess judgment, Farm Bureau calculates that the fee rate was more than $600 per hour. Farm Bureau contrasts that figure with a rate of $85 per hour which was approved in Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 263, 815 P.2d 550 (1991).
We find nothing in the record to indicate that the fee award was computed on an hourly basis. The testimony of Hawkins was that he contracted with his attorney for representation in the action to recover the excess judgment on a 40 percent contingency basis. In his supplemental brief, Hawkins contends that the award was proper because it placed him “in the position he would have been in but for Farm Bureau’s egregious conduct.” This seems to mean that Hawkins would have received $474,864.65 if Farm Bureau had paid the personal injury judgment, but the truth lies elsewhere. Hawkins’ recovery in the personal injury suit, including the excess, presumably would have been subject to the 33% percent contingency fee basis for which he contracted in that action. As the award stands in the garnishment proceeding, Hawkins’ recovery is not reduced by the attorney fee. That is proper under K.S.A. 40-256, but it shows that the contention by Hawkins is not accurate.
As noted by the Court of Appeals, the trial court did not explain how it computed the attorney fees. Hawkins suggests that the award is the difference between $474,864.65 and that amount divided by 0.6. If that is how the district court computed the award, and it appears to be, there is no explanation for it. If thé district court’s intention was to award the fee for which Hawkins was contractually obliged, the award should have been a straightforward 40 percent of $474,864.65 or 40 percent of $474,864.65 plus $2,860.38. Forty percent of the amount of the default judgment is $189,945.86. Forty percent of the total of the default judgment plus the award of costs (not including attorney fees) is $191,090.01.
The reasonable value of attorney fees lies within the sound discretion of the district court. Here, based upon the record before us, we determine that the district court abused its discretion in setting the amount of the attorney fees. This court may, in the interest of justice, “fix such fees when in disagreement with the views of the trial court.” City of Wichita v. B G Products, Inc., 252 Kan. 367, Syl. ¶ 4, 845 P.2d 649 (1993). We do not agree with the trial court and find the award for attorney fees to be excessive. Considering, among other things, the contingency fee agreement, the amount of the recovery, and the time involved in this case, we conclude $189,945.86 is a reasonable sum as an attorney fee.
The decision of the Court of Appeals is reversed. The judgment of the district court is modified by reducing the attorney fee award to $189,945.86. In all other respects, the judgment of the district court is affirmed.
Abbott and Larson, JJ., not participating.
Marvin W. Meyer, Judge Retired, assigned. | [
-16,
108,
-39,
-84,
11,
98,
43,
58,
89,
-73,
-76,
83,
-65,
-61,
21,
41,
-9,
45,
68,
11,
-41,
-74,
23,
-94,
-14,
-5,
-95,
-60,
-111,
79,
108,
-102,
78,
48,
10,
85,
-26,
8,
-127,
90,
-50,
6,
-71,
-4,
89,
72,
-88,
-5,
18,
79,
53,
-113,
3,
46,
27,
74,
41,
40,
107,
-87,
-39,
-15,
-85,
13,
95,
2,
35,
70,
-104,
43,
90,
27,
-112,
49,
0,
-8,
114,
-90,
-126,
-44,
99,
-103,
12,
38,
103,
49,
29,
-51,
-20,
-72,
38,
126,
15,
-121,
-120,
57,
25,
2,
-105,
-97,
115,
22,
4,
-4,
-4,
77,
13,
104,
5,
-50,
-108,
-95,
-17,
-96,
-98,
-53,
-17,
15,
48,
117,
-62,
-22,
93,
69,
118,
25,
-125,
-14
]
|
The opinion of the court was delivered by
Lockett, J.:
Defendant Jerome Cheeks appeals his jury conviction of second-degree murder (K.S.A. 21-3402), claiming the trial court erred in: (1) admitting the victim’s out-of court statements; (2) fading to instruct on lesser included offenses; (3) admitting evidence seized from the defendant’s car; and (4) admitting evidence of the defendant’s other crimes and bad acts. Defendant was convicted in the beating death of his wife, Dianne Cheeks.
The Investigation
Jerome Cheeks arrived at the Kansas City, Kansas, police station around 10 or 10:30 p.m. on November 20,1992, and reported that his wife had been beaten and raped by a group of men. Cheeks appeared calm and was not crying or emotionally upset. He was directed to return home.
When officers and emergency personnel arrived at the home, there were no signs of forced entry. There were numerous beer cans scattered in the kitchen and the kitchen, bedroom, and bathroom were in disarray. There were strands of hair throughout the house. A hammer was on the bedroom floor and there was fecal matter on the end of the hammer handle. Blood on the hammer was consistent with the blood of both Dianne and Cheeks as well as around 57% of the general population. Dianne was lying on the bed. Her hair and sweatshirt appeared to be wet and her jeans were unbuttoned and unzipped.
The autopsy revealed that Dianne died as the result of a subdural hematoma, a clot on the left side of her head. Dianne had multiple blunt impact wounds and extensive bruising over her entire body. There were two bruises on Dianne’s rib cage which formed fairly symmetrical circles or. half-circles. The circle had a %-inch diameter, consistent with the size of the hammer found at the scene. There was a 1 %-inch ragged laceration in Dianne’s rectum consistent with being sodomized by the handle of. the hammer. The pathologist testified that most of Dianne’s external injuries were consistent with being inflicted by a person’s fist but that the rectal injuiy was caused by something being thrust up Dianne’s rectum and the two circular wounds were probably, caused by a hammer. The pathologist placed the time of death between 10 a.m. and 2 p.m. on November 20. He opined that the beating occurred within 24 hours of Dianne’s death. Loss of consciousness could have occurred within a few seconds or several hours after infliction of the injuries, and, untreated, the injuries would cause death. There was a great deal of soap on Dianne’s head and genital region, and her hair was combed. The pathologist opined that Dianne had taken a shower after the injuries were inflicted and then lost consciousness as she attempted to dress. Dianne also had bruises which appeared to be 3 days old.
Cheeks was living with Dianne during the week before her death, following his release from jail. He informed an investigating officer that he left the residence the evening of November 18 to go to St. Louis and he returned to Kansas City around 6 p.m. on the 20th. Cheeks said that when he returned to Dianne’s home around 10 p.m. on the 20th, he found Dianne lying on the floor with her pants down. He placed her on the bed before summoning the police. A police officer testified that Cheeks did not appear upset, but he began to cry when the medical examiner announced that Dianne was dead.
The Trial Evidence
Cheeks had claiméd that he was in St. Louis, Missouri, on November 19 and had returned to Kansas City around 6 p.m. on the 20th. A receipt from a Wendy’s restaurant in Kansas City dated 3:17 p.m. on November 20 (almost 3 hours before Cheeks claimed to have returned home) was found in Cheeks’ car.
The State called witnesses to show that Cheeks had fabricated an alibi. Cheeks’ parole officer testified that while conducting a home visit with Cheeks on the morning of November 18, he heard sounds of water being turned on and off intermittently and of a rag being wrung out or someone washing the floor. Cheeks would not allow the parole officer to speak with Dianne and became distraught and agitated when the parole officer pressed the issue. Cheeks admitted to the parole officer that he and Dianne had had a verbal fight, but he denied any physical fight. The parole officer believed that there was something wrong with Dianne, so he returned to the house with police 15 minutes later. No one was home. An SRS caseworker also testified that she arrived at the house later in the morning on the 18th to check on Dianne. Cheeks informed the SRS worker that Dianne was not home.
A neighbor testified that he observed Cheeks, Dianne, and Cheeks’ vehicle at the residence on the afternoon of the 19th. The neighbor stated that Cheeks’ vehicle did not leave the house for more than 2 hours that day. On the evening of the 19th, Dianne’s landlord went to see her about the rent. Cheeks was at the house, acted belligerent, and informed the landlord that Dianne was gone.
Cheeks had been in jail for most of 1992 (off and on), and during much of that time Dianne lived in various women’s shelters. Shortly before Cheeks’ release in November 1992, Dianne wrote him letters indicating that she loved him and could not wait until his release. A note from Dianne to Cheeks was found in the basement trash at Dianne’s house. It said in part:
“Am I doing the best thing? See, nobody here knows about that but me and you. Let’s keep it like that. I don’t talk about that to anyone. The only person I talk about that to is someone that means something to me. That is you, Jerome Cheeks. How many times do I have to tell you you are everything to me. I try to look over it when you hit me. I know that’s not you, it’s the drugs, baby. That’s bad, but I am trying to show you that I care a hell of a lot about you. I am surprised you don’t see it in me. If you don’t, I don’t know what to say. I miss the kids, baby. I miss you, too. You shouldn’t even have to ask me about the money. You know Dianne Cheeks is going to do that anyway. Maybe you will appreciate me and take me for what I am one day. Can’t you do that — can’t you do that for the one that is done for you? You could show me some appreciation one day unless you kill me first. Look, I love you, Jerome Cheeks.”
A cellmate of Cheeks’ testified that Cheeks told him he had slapped Dianne around and that if Dianne did not get her act straight she would be found in a ditch one day. Other witnesses testified that Dianne had told them that Cheeks had beaten her numerous times during their marriage. The testimony of these witnesses is set out later in the opinion.
Cheeks testified that he did not kill Dianne. He insisted that he and Dianne had a loving, caring, and wonderful relationship which was not as depicted by the State’s witnesses concerning the beatings. He believed the witnesses lied because he and Dianne had an interracial relationship. Cheeks claimed that they had only the general problems of a married couple. He did admit that he had struck Dianne once or twice in the last 3 years.
Cheeks testified that after he was released from jail, he returned to Kansas City on November 12. He and Dianne spent the first couple of days at home. They had intended to take a trip to St. Louis on November 18, but when Dianne remembered she had a court date the following day Cheeks decided to go alone. Cheeks stated that he left home on the evening of the 18th, stopped at a couple of bars in the Kansas City area, and left Kansas City around 8 a.m. the next morning. On his way to St. Louis, Cheeks testified, he stopped at a Wal-Mart in Boonville, Missouri and bought a cassette player for his son and a large tote bag to put clothes in. An employee of the Boonville Wal-Mart, 110 miles from Kansas City, testified that a man with a backpack who looked similar to Cheeks purchased a handbag and a cassette Walkman. Cheeks recalled that he arrived in St. Louis sometime in the afternoon on the 19th and went to a jazz bar, had a few drinks, was “out on the town” that night, and slept in his car. He testified that he left St. Louis around 10 a.m. on the 20th, drove around in the Kansas City area after arriving, and went home at 6 p.m.
Cheeks testified that when he went into the house and announced that he was home, Dianne did not answer. Cheeks stated that he turned on the radio and then went to the bedroom, where he found Dianne lying on the floor. He thought Dianne had been beaten and raped but was not aware she was dead. Cheeks recalled that he laid her on the bed and placed a wet towel on her face. Because they did not have a telephone, Cheeks called the paramedics from a convenience store. After calling for help, he returned to the house and waited for 45 minutes. When nobody showed up, Cheeks testified, he drove to the police department and told the police his wife had been assaulted and raped. Cheeks returned to the house, and the ambulance arrived at the same time. Cheeks testified that the medical personnel did not go into his house until he prompted them and, after looking at Dianne, they told him she was dead. Cheeks testified that photographs of Dianne and her injuries shown to the jury showed more extensive bruising than the way she had looked when he went to get the police.
Cheeks was cross-examined about his statement to police on the night of Dianne’s death that he had been in St. Louis. Cheeks stated that he was forced to give false information that he had seen his brother while in St. Louis because the police stated that they would charge him in Dianne’s death unless he had a witness who would say that he was in St. Louis.
The jury convicted Cheeks of second-degree murder. He was sentenced to 15 years to life. He appeals.
VICTIM’S STATEMENTS
The defendant argued at trial that evidence of photographs and out-of-court statements of his deceased wife were inadmissible be cause, in some instances, the statements were multiple hearsay and that evidence of the events, one of which was 3 years earlier, was too remote in time to have causal relationship. The trial court ruled that the photographs and the prior statements were evidence admissible under the discordant marital relationship exception to show motive and intent. The court admitted the photographs after observing that there was no difference between the testimony of witnesses describing bruises and photographs depicting those bruises.
The statements admitted were made by the deceased wife to various persons that her husband had repeatedly abused her during the marriage. Dianne’s sister and her sister’s boyfriend testified that over the 3 years before Dianne’s death, Dianne informed them of instances of fighting and abuse inflicted by Cheeks. Dianne’s sister did not see her very often but had seen bruises on Dianne’s face and arm on an occasion 2 years earlier. In January 1991, Dianne reported that her husband tried to break her leg with the arm of a chair. She had bruises on her face and leg. Dianne stated that her husband beat her all the time.
Dianne also told a psychologist that two of her children had been removed from their custody because she and her husband were abusing cocaine. In March 1992 an SRS caseworker observed that Dianne had been beaten. Dianne stated to the caseworker that Cheeks had inflicted the abuse. She also told the worker that Cheeks beat her and that he used drugs, particularly crack. The worker periodically observed bruises on Dianne over the next couple of months. On each occasion Dianne informed the worker that Cheeks had done it. In April 1992 Dianne reported that she had been beaten by Cheeks. She had severe bruises, cuts, and cigarette bums in her mouth and on her arms and legs. Dianne stated that her husband had burned her and beat her when she refused to steal for him. In addition, he had on various occasions forced her to drink radiator fluid, twisted a screwdriver into her leg, and hit her on the head with a hammer. In July 1992 Dianne reported that Cheeks had burned her back with a hot iron. A women’s shelter employee had observed the bum.
In State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982), this court discussed marital discord evidence. The Green court held that evidence of a discordant marital relationship, including the defendant’s prior acts of violence against his wife and threats to kill her, is admissible independent of K.S.A. 60-455 where the evidence is offered not for the purpose of proving distinct offenses but rather to establish the relationship of the parties, to establish the existence of a continuing course of conduct between the parties, or to corroborate the testimony of witnesses as to the act charged. The court stated that under such circumstances, a limiting instruction is not required. See State v. Hernandez, 253 Kan. 705, 714, 861 P.2d 814 (1993); State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991); State v. Taylor, 234 Kan. 401, 407, 673 P.2d 1140 (1983).
A similar conclusion was reached in State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991). There, several of the victim’s friends testified as to the victim’s statements of marital discord. The May-berry court observed that on numerous occasions, this court had approved the admission of statements by a deceased victim which demonstrate the deceased’s state of mind prior to the murder and which show the existence of a rift between the deceased and the defendant, citing State v. Wood, 230 Kan. 477, 479, 638 P.2d 908 (1982); and State v. Phipps, 224 Kan. 158, 160, 578 P.2d 709 (1978). It noted that as a general rule in a case of marital homicide, evidence of a discordant marital relationship and of the defendant’s previous ill treatment of the spouse is relevant as bearing on the defendant’s motive and intent. Mayberry, 248 Kan. at 384; see Taylor, 234 Kan. at 408; State v. Fenton, 228 Kan. 658, 667-68, 620 P.2d 813 (1980).
The statements made by Dianne to others prior to her death were relevant to show past conduct of the accused and was admissible as marital discord evidence which revealed the relationship between Dianne and the defendant. The trial court’s admission of the marital discord evidence was not error.
The defendant argues that the evidence of prior marital discord was in some instances multiple hearsay. The fact that marital discord testimony contains a statement made by another declarant and is multiple hearsay is not a per se bar to admission of that testimony. See K.S.A. 60-463, which discusses multiple hearsay.
The defendant also argues that the evidence was too remote to be admissible. Where the fact or facts proposed to be established as a foundation from which an inference may be drawn do not have a visible, plain, or necessary connection with the proposition eventually to be proved, such evidence is excluded for remoteness. See Black’s Law Dictionary 1295 (6th ed. 1990). However, lapse of time may not be sufficient to deprive evidence of its value but goes to the weight of the evidence, which is for the jury to determine. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Green, 232 Kan. 116, Syl. ¶ 5.
In Hedger, 248 Kan. at 820, this court held that a 5-year lapse of time did not make evidence of prior abuse too remote because there was a connection between prior instances of abuse and instances of abuse immediately before the victim’s death in that the prior abuse was related to Hedger’s alcoholism, and the evidence showed that Hedger resumed drinking shortly before the victim’s death. Here, the testimony established a continuing course of con duct and relationship between Dianne and the defendant. The evidence showed a pattern of abuse dating to 3 years before Dianne’s death and continuing until her death. The trial court did not abuse its discretion in finding that prior instances of abuse were not so remote that the evidence was inadmissible.
The defendant makes other arguments on appeal concerning the admissibility of the marital discord evidence. These arguments were not made to the trial court and cannot be raised for the first time on appeal. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).
LESSER INCLUDED OFFENSES
K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. The statutory duty to instruct on lesser included offenses is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993). The defendant argues that the trial court should have instructed the jury on voluntary manslaughter, K.S.A. 21-3403, and involuntary manslaughter, K.S.A. 21-3404, as lesser included offenses of second-degree murder.
An instruction on a lesser included offense is not required in every second-degree murder case. The instruction is required if there is substantial evidence upon which the defendant might rea sonably have been convicted of the lesser offense. State v. Arteaga, 257 Kan. 874, 889, 896 P.2d 1035 (1995). However, the duty to instruct on a lesser included offense “does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant. The evidence may be inconclusive, unsatisfactory, and weak and consist only of the defendant’s testimony. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993). There is some weighing of evidence in this analysis, but the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992).
The defendant correctly notes that in a prosecution for murder where there is no direct evidence of the manner of the killing and the evidence introduced against the defendant is wholly circumstantial and open to the inference by a juiy that the offense committed may have been among the several lower degrees of homicide, it is die duty of the trial court to instruct the jury respecting all the degrees of homicide, with it being the province of the jury, and not of the court, to determine the degree, if any, of which the defendant is guilty. The testimony of the defendant alone, if it tends to establish the lesser degree of homicide, is sufficient to require the court to so instruct. State v. Johnson, 220 Kan. 720, Syl. ¶ 1, 556 P.2d 168 (1976). Here, however, even though the evidence against the defendant is entirely circumstantial and there is no direct evidence of the events surrounding Dianne’s death, before any lesser instruction is required we must find evidence upon which the defendant might reasonably have been convicted of the lesser offenses.
Voluntary Manslaughter
Voluntary manslaughter is the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403. The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. State v. McClanahan, 254 Kan. 104, 113, 865 P.2d 1021 (1993); see State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991). Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. McClanahan, 254 Kan. at 114. This court has stated that a provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason. State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985).
There was evidence of marital discord but no evidence that Dianne had provoked her killer. There is no substantial evidence upon which the defendant could reasonably have been convicted of voluntary manslaughter, and the trial court was not required to instruct on that offense.
Involuntary Manslaughter
Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner. K.S.A. 21-3404. It is a lesser crime of second-degree murder. See State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 (1975). The defendant contends that the killing may have been unintentional.
Involuntary manslaughter requires, in addition to an unintentional killing that the killing be committed in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act in an unlawful or wanton manner. There is no evidence that Dianne’s assailant was committing a lawful act in an unlawful or wanton manner. Defendant suggests that Dianne’s assailant may have only intended to inflict a beating, an unlawful act not amounting to a felony, but he does not specify what this underlying act would be. We note that battery, which is “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angiy manner” is a class B misdemeanor. K.S.A. 21-3412. However, aggravated battery, which includes the unlawful touching or application of force to another person with the intent to injure that person and which inflicts great bodily harm, is a class C felony. K.S.A. 21-3414.
The evidence here is that great bodily harm was inflicted, so the battery was an aggravated battery, a felony. There is no evidence upon which the defendant could reasonably have been convicted of the lesser included offense of involuntary manslaughter, and the trial court did not err in refusing to instruct on that offense. See State v. Crispin, 234 Kan. 104, 109-10, 671 P.2d 502 (1983).
EVIDENCE SEIZED
Prior to trial, a defendant may move to suppress evidence obtained from an unlawful search and seizure. K.S.A. 22-3216. The motion must be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion, and the burden of proving that the search and seizure were lawful is on the prosecution. K.S.A. 22-3216(2).
The defendant argues that the trial court erred in admitting evidence seized from his car. The defendant filed a pro se motion to suppress this evidence, claiming that the search was unlawful, but the motion failed to state why the search was unlawful. The trial court did not rule on the defendant’s pro se motion.
The defendant suggests that the trial court had an affirmative duty to rule on his pro se motion. The pro se motion merely made a conclusory assertion that evidence was “obtained through the work product of an unlawful search and seizure” from his car and the motion did not state facts showing how the search was unlawful. The defendant’s conclusory statement.that the search was unlawful was insufficient to require the trial court to hold a hearing on his motion. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994) (mere conclusions of a defendant are not sufficient to raise a substantial issue of fact when no factual basis is alleged or appears from the record).
The defendant’s court-appointed attorney made no timely objection to the introduction of the evidence seized from the defendant’s car at trial. The State argues that in the absence of.a timely objection at trial, the defendant has not preserved this issue for appeal.
A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. See State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994). By failing to make a contemporaneous objection at trial, the defendant failed to preserve this issue for appeal.
The defendant asserts, without discussion, that his counsel’s failure to object to the evidence at trial constituted ineffective assistance of counsel. The issue of ineffective assistance of counsel is raised here for the first time on appeal by appellate counsel. The defendant’s appellate counsel filed a motion to remand the case to the trial court for a determination of the ineffective assistance of counsel issue, but not until October 17, 1995, only 1 week before oral argument and more than 4 months after the appellate brief mentioning the issue was filed. Because the defendant’s appellate counsel did not timely seek a remand, this court denied the motion to remand on October 18, 1995.
In State v. Van Cleave, 239 Kan. 117, 118-19, 716 P.2d 580 (1986), this court held that an allegation of ineffective assistance of counsel will not be considered for the first time on appeal. The Van Cleave court pointed out that the principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than is an appellate court in reviewing the issue for the first time from a cold record. Many times what would appear in the record as an indication of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue.
If ineffective assistance of counsel is not apparent from a cold reading of the record on appeal, this court will not reach the issue for the first time on appeal. The Van Cleave court recognized two remedies where an ineffective assistance of counsel claim arises for the first time on appeal. One remedy is via a K.S.A. 60-1507 motion in the trial court. The second option, where new counsel enters the case after the appeal is filed, is for the defendant to seek a remand from the appellate court to the trial court for determination of that issue. 239 Kan. at 119-21. Because the defendant’s motion to remand was untimely, this court will not reach the issue oh appeal.
EVIDENCE OF OTHER CRIMES AND BAD ACTS
The defendant asserts that evidence of his drug abuse, child abuse, and prior crimes of car theft or car tampering should not have been admitted at trial. The defendant did not object to any of this evidence at trial. His failure to lodge a contemporaneous objection at trial precludes him from raising the issue on appeal. See K.S.A. 60-404; Peckham, 255 Kan. at 327; Johnson, 255 Kan. at 254.
The defendant suggests that his objection to marital discord evidence at the appeal stage is sufficient to preserve this issue for appeal because the evidence of drug and child abuse and prior crimes was admitted through the marital discord witnesses. The contemporaneous objection rule requires that the specific ground of objection be stated at the time of the objection. K.S.A. 60-404. An objection to marital discord evidence does not preserve an objection to evidence of drug and child abuse and prior crimes. The defendant has not preserved this issue for appeal.
The defendant also suggests that if his failure to object at trial is a bar to an appeal on this issue, then he received ineffective assistance of counsel at trial. Again, the defendant raises the ineffective assistance of counsel for the first time on appeal, and his request to remand the case to the district court for determination of the issue was not timely. We do not reach the issue of ineffective assistance of counsel.
Affirmed. | [
-112,
-52,
-43,
-67,
40,
96,
-22,
72,
100,
-106,
115,
123,
-19,
-53,
69,
43,
34,
-3,
84,
97,
80,
-73,
63,
-31,
-86,
-77,
56,
-44,
-77,
79,
52,
-1,
9,
98,
-62,
21,
102,
75,
83,
92,
-118,
-121,
-53,
-16,
18,
2,
58,
62,
-60,
6,
-79,
-100,
-29,
42,
23,
66,
-55,
46,
122,
36,
92,
-71,
-86,
21,
-37,
22,
-77,
38,
-65,
11,
-40,
23,
-104,
57,
0,
-24,
35,
-74,
-126,
116,
79,
-119,
12,
99,
99,
33,
29,
-51,
56,
-87,
15,
111,
-99,
-90,
-103,
96,
65,
36,
-97,
-99,
96,
116,
47,
-8,
119,
76,
77,
108,
-114,
-50,
-112,
-111,
79,
53,
-104,
-6,
-5,
-89,
16,
113,
-51,
-94,
93,
-12,
80,
-69,
-98,
-78
]
|
The opinion of the court was delivered by
Larson, J.:
Victor J. Smith appeals his convictions of two counts of first-degree murder. K.S.A. 1992 Supp. 21-3401.
Smith contends (1) he was denied a fair trial due to prosecutorial misconduct, (2) the trial court erred in responding to the jury’s inquiry, and (3) the evidence was insufficient to support his conviction.
Smith fatally shot his ex-wife, Linda Smith, and her friend, John Pease, in their Lawrence apartment at approximately 5 a.m. on March 13, 1993. Smith admitted the shootings but contended he acted in self-defense.
The day prior to the shooting, Smith purchased a gun and ammunition in Wichita. He took a bus to Lawrence and arrived about 10 p.m. After stopping at a friend’s house, Smith and a friend smoked crack cocaine and drank whiskey for about 30 minutes. Smith spent the rest of the night walking around Lawrence.
Smith testified that when he saw lights on at his ex-wife’s residence, he knocked on the door. When Pease answered the door and threatened him, Smith started “popping away” and followed Pease into the apartment, firing at him many times. Smith then heard Linda threatening him from upstairs. He fired one shot at her and hit her in the arm. He then ran upstairs to find his daughter while reloading his gun. Smith testified that his gun discharged during the reloading, with the bullet fatally striking Linda. Smith fled from the city but was arrested approximately 18 hours later in Chanute, Kansas.
A forensic examination revealed Pease died from four to five gunshot wounds. Linda died after she was shot two or three times. Testimony showed a stormy relationship resulting in the parties’ divorce, with specific testimony that Smith had previously threatened to kill Linda.
Linda’s neighbors’ testimony differed materially from Smith’s. The neighbors were awakened by two shots and the slamming of Linda’s front door. They heard a woman scream as she ran up the stairs, some commotion upstairs, and then the woman screaming as she ran back down the stairs. Next, they heard three consecutive shots coming from the bottom of the stairs near the front door of Linda’s apartment, and then there was silence.
A jury convicted Smith of two counts of first-degree murder. He was sentenced to two consecutive terms of life imprisonment.
Smith’s contention that he was denied a fair trial because of prosecutorial misconduct is based on an inflammatory question asked by the prosecutor plus allegedly improper remarks made during closing arguments.
During direct examination, Smith testified that he asked for a Bible after being booked into the jail in Chanute. On cross-examination of Smith, the prosecutor confirmed that Smith requested a Bible and then asked, “Is that the same Bible that says Thou shalt not kill’ ”? The defense counsel immediately objected, saying, ‘Tour Honor, I object to that on two grounds. There is no place in the Bible that says, Thou shalt not kill.’ It’s irrelevant.” The trial judge sustained the objection stating, “It’s argumentative, and if there is another outburst in the courtroom, I will clear the courtroom. Go ahead, Mr. Wells.” The prosecutor then said he had no further questions.
Smith contends the comment denied him a fair trial because it violated his First Amendment rights. He contends the comment was made to appeal to the jury’s religious fervor.
A prosecutor’s duty was reiterated by this court in State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993):
“It is the duty of the prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. State v. Wilson, [188 Kan. 67, 73, 360 P.2d 1092 (1961).]”
The Model Rules of Professional Conduct prohibit a lawyer from alluding to any matter he or she does not reasonably believe is relevant or that will not be supported by admissible evidence at trial. MRPC 3.4 (1994 Kan. Ct. R. Annot. 352).
Any effort by the prosecutor reasonably calculated to appeal to or evoke religious prejudice is to be condemned. State v. Lee, 201 Kan. 177, 179, 440 P.2d 562 (1968). “The dignity of the court, the decorum of the trial, and the interest of truth and justice forbid license of speech in arguments to jurors outside the proper scope of professional discussion.” Ruff, 252 Kan. at 635.
The prosecutor’s question was clearly improper. However, “[i]t is . . . well established that an appellate court will not find reversible error when an objection to a prosecutor’s question or statement has been sustained.” State v. Pioletti, 246 Kan. 49, 67, 785 P.2d 963 (1990). The trial court sustained defense counsel’s objection and the defendant was not allowed to answer the question. It follows that the prosecutor’s question, although imprudent and unnecessary, did not constitute reversible error. In testing whether an improper action of a prosecutor requires reversal, we must determine whether the likelihood of the error changed the result of the trial. State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988). The request for the Bible was raised by Smith in direct examination, and while the prosecutor’s response was ill-advised, there was no likelihood the improper question changed the result of the trial.
Smith’s reliance on two United States Supreme Court cases is misplaced. He first cites for support Pennsylvania v. Mimms, 434 U.S. 106, 114, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), where he quotes from the footnotes of a dissent. The other case he cites for support, South Carolina v. Gathers, 490 U.S. 805, 104 L. Ed. 2d 876, 109 S. Ct. 2207 (1989), overruled by Payne v. Tennessee, 501 U.S. 808, 830, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1990), involved the relevancy of the victim’s personal qualities in the defendant’s sentencing proceeding; the issue in Gathers is not relevant to the facts here.
Additionally, Smith contends he is entitled to a new trial because of improper statements by the prosecution during closing argument to which he did not object. Smith complains of the following statements:
“Finally, I would say this to you, ladies and gentleman: This defendant has been a man who has been self indulgent apparently most of his adult life, and this was in fact another act of self indulgence to remove his anger and his rage against his wife for what she had done to him by divorcing him, and against her fiance’, and he shot them and he executed them and he did it in cold blood with multiple shots. Look at these pictures, ladies and gentlemen. No one should die like this, no one, and the only way you die like this with multiple gunshot wounds is through premeditated, deliberate, intentional acts of minder. Thank you.”
First, reversible error should not be predicated upon a complaint of misconduct of counsel during closing argument where as here, there is no contemporaneous objection. State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991). Second, the statement is not improper argument. Smith’s contention that he is entitled to a new trial based on prosecutorial misconduct is without merit.
Smith next contends the trial court abused its discretion by its response to the jury’s request for a copy of the trial transcript. When the jury asked the court: “May we also have a transcript of the testimony!?]” defense counsel suggested that the judge inform the jury that the transcript had not yet been transcribed. The judge ascertained from the court reporter that it would take several days to prepare the transcript and that it would take a considerable amount of time to read back the entire trial to the jury. Defense counsel objected to providing the jury with the transcript or having the entire trial read back.
In response to the State’s suggestion that the judge explain to the jury that “it is impossible to do what they have requested in its entirety, but if there are specific excerpts that they want read back, that they have a right to do that,” the following colloquy occurred:
“[DEFENSE COUNSEL]: No, they don’t have a right to do that. They have a right to request it. It may well be if they ask for too much, the Judge can say no, that is excessive or if they ask for too little, the Judge may require more to be read back.
“THE COURT: The trouble with a readback is exactly that. When do you begin and when do you end so it’s not taken out of context. Of course, if the jury wants to have the particular testimony read back to them, then arguably, if it’s in the State’s direct, then the defense is allowed to have the cross examination of . . . that issue read back to them. I propose or I will suggest to you that I will . . . explain to the jury that the transcript of the trial is not prepared and will not be ready for several weeks if not months and that if they are in need of a particular readback of an area of the witness’ testimony, they need to request that, and whether or not that is granted would depend on what their request is. Is that agreeable?
“[PROSECUTOR]: Sure.
“THE COURT: Good.”
The trial court informed the jury:
“Your second question is the reason why I brought you in here. That was, ‘May we have a transcript of the testimony?’ There is no transcript of the testimony. I think there is some misconceptions about that and I thought it was important to explain it to you. In Federal Court, as I understand it, they do what is called daily copy and that is one court reporter comes in for awhile and covers it and goes out and transcribes it and then changes it from shorthand basically to a readable fashion. We don’t have that luxury in state courts. The transcript of this proceeding, the length of time it would take would be at least several days in order for it to be prepared, edited and then finally verified, so that is not a possibility to give you tire transcript of the trial. Now you should rely on your memories as fact finders in this case as to what tire testimony is. However, if you do want a particular area of testimony read back to you, you may specifically request that. Now whether or not that is done depends on how the question is phrased, what part of it you want, that type of thing, but it’s hard just to have a sentence or two read back and then for it to be considered in context, so you must keep that in mind when making your request, but again, you may request a specific readback of an individual’s testimony. However, you should also try to rely on your collective memories in what these individuals have testified to; and with that instruction, I am going to send you back to the jury deliberation room. Thank you.”
Smith now contends K.S.A. 22-3420(3) creates a mandatory duty on the trial court to provide a readback when the jury requests that any part of the evidence be read or exhibited to them. He asserts that “[s]imply sending the jury back was tantamount to a flat denial of their request.”
K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request tire officer to conduct them to tire court, where . . . the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Although a trial court is required to accede to a jury’s request to read back testimony, the trial court has discretion to clarify and focus the jury’s inquiry. State v. Myers, 255 Kan. 3, 8, 872 P.2d 236 (1994). The trial court’s duty was further defined in State v. Boyd, 257 Kan. 82, 88, 891 P.2d 358 (1995), where we stated:
“[A] trial court may not ignore a jury’s request submitted pursuant to K.S.A. 22-3420(3) but must respond in some meaningful manner or seek additional clarification or limitation of die request. It is only when the trial court makes no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that the mandatory requirement of K.S.A. 22-3420(3) is breached. Once the trial court attempts to give an enlightening response to a jury’s request, then the standard of review as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.”
A defendant may waive the right to challenge the trial court’s response to a jury request by failing to object. Boyd, 257 Kan. at 89. In this case, defense counsel waived Smith’s presence at the conference between the trial court and counsel, and both Smith and his counsel were present when the trial court addressed the jury. Smith had the opportunity to object to the court’s response, but failed to do so.
Additionally, the defense counsel was opposed to providing the jury with a transcript or having the entire trial read back to the jury. The trial court followed defense counsel’s suggestion to inform the jury that the transcript was not available and that the juiy had a right to request a readback of specific testimony, although the trial court would have discretion in limiting an excessive request or expanding a narrow request. If the trial court had responded improperly, this is almost tantamount to invited error.
Viewed either way, this issue is without merit. The trial court made a proper and meaningful response to the jury’s inquiry and did not abuse its discretion.
Finally, we consider Smith’s contention that the evidence is insufficient and, based on the facts, an inference of premeditation is not reasonable in this case.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in tire light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
K.S.A. 1992 Supp. 21-3401 defines first-degree murder as the killing of a human being committed maliciously, willfully, deliberately, and with premeditation.
The record indicates Smith had previously threatened to kill his ex-wife. On the day before the shootings, he purchased a larger caliber gun than he had previously owned and ammunition before taking a bus from Wichita to Lawrence. He prepared himself with cocaine and alcohol while walking around Lawrence waiting for the lights to come'on in his ex-wife’s apartment. When he knocked on the door, an unarmed Pease answered. Smith fired at Pease at least five times and followed him into the apartment.
Once inside, Smith shot Linda two or three times and reloaded his gun while inside the apartment. Neither victim was armed.
This evidence, viewed in the light most favorable to the prosecution, is clearly sufficient for a rational factfinder to find Smith guilty beyond a reasonable doubt.
Affirmed. | [
-80,
-22,
-95,
-98,
25,
-32,
-86,
-72,
118,
-14,
-32,
115,
45,
91,
69,
107,
58,
61,
85,
105,
-41,
-77,
103,
-87,
-14,
115,
122,
-43,
-77,
72,
-4,
-35,
76,
96,
14,
77,
38,
-54,
103,
80,
-114,
20,
-87,
-16,
-38,
18,
32,
47,
70,
7,
17,
14,
-69,
42,
20,
-26,
-119,
40,
91,
-84,
80,
-71,
75,
-115,
-49,
48,
-77,
-122,
-66,
13,
88,
46,
-39,
57,
0,
104,
115,
-124,
-122,
116,
109,
-119,
44,
102,
99,
36,
93,
-52,
40,
-119,
47,
115,
-99,
-89,
29,
64,
69,
100,
54,
-33,
108,
53,
43,
-8,
-25,
95,
25,
-24,
-115,
-34,
-78,
-111,
73,
56,
2,
-6,
-21,
-124,
32,
113,
-49,
-86,
94,
85,
121,
-37,
-118,
-108
]
|
The opinion of the court was delivered by
Lockett, J.:
A worker was killed on his return trip home from work. The worker’s surviving spouse and minor children claimed death benefits. The Administrative Law Judge (ALJ) denied their claim, finding that the worker had abandoned his employment and therefore the accident did not arise out of and in the course of his employment. On review, the Workers Compensation Board (the Board) reversed the ALJ, finding that the worker’s death arose out of and in the course of his employment. The employer appealed. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Donald L. Kindel was employed by Ferco Rental, Inc. (Ferco). On October 11,1991, Kindel was transported in a company pickup truck from his home in Salina, Kansas, to a construction job site in Sabetha, Kansas. James Graham, Kindel’s supervisor, was the driver of the truck. The company truck had been checked out to Graham to transport Kindel and other employees to and from the job site.
On the way to Sabetha, Graham and Kindel passed a former employee of Ferco. Kindel held up a note inviting the former coworker to join them at the Outer Limits, a “striptease” bar adjacent to Interstate 70 on the west side of Topeka. At approximately 3:30 p.m., after completing the day’s work at the job site in Sabetha, Graham and Kindel proceeded back toward Salina. On the way, the two men stopped at the Outer Limits for approximately four hours, where they became inebriated.
Graham suffers from amnesia and cannot recall any of the events occurring after they stopped at the Outer Limits. Graham testified, however, that it was Kindel’s idea to stop at the Outer Limits; that Kindel made the arrangements to meet the former co-worker at the Outer Limits after work that day; and that if Kindel would have wanted to proceed straight home, Graham would have done so.
At approximately 8:50 p.m., the Kansas Highway Patrol received a call of a motor vehicle accident on Interstate 70 near mile marker 337. When Trooper McCool arrived at the accident scene, he observed the Ferco truck overturned and lying in the south ditch of the westbound lane near an entrance to a rest area. Graham, who was driving, and Kindel had been partially ejected out of the truck’s windshield. Kindel was deceased. Subsequent tests determined that Graham and Kindel had blood alcohol levels of .225 and .26, respectively.
Prior to the accident, Graham and Kindel were aware that Ferco had a policy that, except to obtain food or fuel, company vehicles were to be used only to go directly from the shop to the job site. Company vehicles were not to be used for personal pleasure or business. Ferco had a comprehensive drug and alcohol policy in place at the time of the accident which, among other things, prohibited workers from using the company equipment while under the influence of alcohol. Employees were not authorized to use a company vehicle to stop at a bar to consume alcohol. Kindel signed off on this policy on December 8, 1990. The employer asserted that when the employees stopped at the bar, authorization to use the company vehicle ceased and any further use of the company vehicle was not part of their employment.
At the time of the accident on October 11, 1991, Graham possessed a valid Kansas driver s license. Ferco was aware of Graham’s propensity for drinking and driving. Graham had been charged with DUI some six days prior to this incident and had a previous conviction for which he had had his driver’s license suspended. Graham understood that he was prohibited from drinking while using company equipment. Graham testified that the reason for stopping at the Outer Limits was to pursue pleasure and to have a good time. He said it was his understanding that when he pulled up at the Outer Limits, his work was over for the day.
Kindel’s surviving spouse and minor children filed a workers compensation claim, seeking death benefits pursuant to K.S.A. 1991 Supp. 44-510b. The ALJ found
“that the deviation was so substantial and there is not a causal connection between the deviation and the purpose of employment, nor a causal nexus between the resulting accident and death as to say that the claimant had ever returned to the scope of his employment. . . . The subsequent death, therefore, did not arise out of and in the course of his employment.”
The ALJ made no findings as to whether Kindel’s death resulted substantially from his intoxication. The claimants appealed.
After reviewing the record, the Board reached the opposite conclusion, finding that Kindel’s death arose out of and in the course of his employment. The Board acknowledged case law from other jurisdictions supporting the ALJ’s decision, but found case law supporting a finding of compensability to be more persuasive. The Board first noted that Kindel’s trip to and from Sabetha, absent the detour, would have been considered a part of his employment. The Board stated that even if it assumed that the deviation from employment increased the risk of injury, the injury and resulting death resulted from the combined personal and work-related risks. The Board concluded that, under Kansas law, the increased risk attributable to the deviation did not, by itself, bar recovery. The Board observed:
“The [Kansas Workers Compensation] Act is to be liberally construed to bring both employees and employers within the coverage of the act. K.S.A. 44-501(g). The fact that claimant had been drinking and even the type of bar may be emotionally charged factors. This is especially so in this case where respondent had a clear policy against drinking while driving company vehicles. Nevertheless, the activities of claimant during the deviation from employment do not have any real relevance to whether the accident which occurred after claimant returned to the route home in the company vehicle occurred in the course of employment. Had claimant and his supervisor stopped for the evening, spent the night at a motel and returned the. next morning, an accident on the route home would likely have been considered compensable. The only difference here is the nature of the activity during the deviation from employment.
“The Appeals Board does not consider the nature of the activity, i.e., the drinking at a topless bar, to be determinative. The Kansas Workers Compensation Act is generally a no fault system. With the exception of certain specific defenses, e.g., refusal to use a safety guard or injury caused by the' claimant’s intoxication, the fault of the claimant is not relevant to compensability. Second, the specific factor, i.e., drinking, is already addressed by statute. See K.S.A. 44-501(d). The statute specifies the circumstances where intoxication acts to bar recovery. It would be [an] inappropriate expansion of that statute if claimant’s drinking were the sole factor taking the injury out of the scope of employment.
“When reduced to the essential relevant facts, this case is not materially different from any other where a claimant deviates from his employment but has returned at the time of the accident. The Appeals Board therefore finds that claimant’s death arose out of and in the course of his employment.”
The Board reversed the decision of the ALJ and remanded the case for a determination of the appropriate benefits. The employer appealed.
The employer contends that when Graham and Kindel stopped at the Outer Limits, they abandoned their employment and the subsequent accident which caused the worker’s death is not compensable. The claimants assert that Kindel’s activity during the deviation is irrelevant because he was not killed during the deviation. The claimants argue there is substantial competent evidence to support the finding of the Board that Kindel’s death arose out of and in the course of his employment.
Standard of Review
K.S.A. 1991 Supp. 44-556(a), defining the standard of review of the district court under the pre-Board system, states that “[s]uch review shall be upon questions of law and fact.” Review of the Board’s decision is now by the appellate courts in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. See L. 1995, ch. 1, § 3.
Under K.S.A. 77-621, appellate review is explicitly limited to questions of law. That statute states, in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(4) the agency has erroneously interpreted or applied the law;
“(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 . . . ; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Arising out of and in the Course of Employment
Although K.S.A. 1991 Supp. 44-508(f), a codification of the longstanding “going and coming” rule, provides that injuries occurring while traveling to and from employment are generally not compensable, there is an exception which applies when travel upon the public roadways is an integral or necessary part of the employment. See Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951); Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 437, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). Because Kindel and other Ferco employees were expected to live out of town during the work weeks, and transportation to and from the remote site was in a company vehicle driven by a supervisor, this case falls within the exception to the general rule.
In any employment to which workers compensation laws apply, an employer is liable to pay compensation to an employee where the employee incurs personal injury by accident arising out of and in the course of employment. K.S.A. 1991 Supp. 44-501(a). Whether an accident arises out of and in the course of the worker’s employment depends upon the facts peculiar to the particular case.
The two phrases arising “out of” and “in the course of” employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase “out of” employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment.- An injury arises “out of” employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises “out of” employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase “in the course of” employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 198-99, 689 P.2d 837 (1984); Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973).
Both the ALJ and the Board acknowledge the separate considerations inherent in the determination whether the death arose “out of” and “in the course of” employment. The ALJ concluded that the length of time Kindel spent at the Outer Limits and his substantial consumption of alcohol removed his subsequent activity from arising “in the course of” his employment, notwithstanding the fact he was on his homeward route at the time of the accident. The Board, on the other hand, determined that Kindel’s injury and death resulted from combined risks attributable to his personal deviation and his employment, and held that the increased risk factor attributable to the deviation should not bar recovery. The point of disagreement between the ALJ and Board is whether the deviation was so substantial as to permanently remove the worker from the course of his employment, even though he later continued his homeward route. The parties cite various cases for support of their respective positions.
Two Kansas cases address a somewhat similar situation and determined whether the worker had abandoned his employer s business. They are Angleton v. Starkan, Inc., 250 Kan. 711, 828 P.2d 933 (1992), and Woodring v. United Sash & Door Co., 152 Kan. 413, 103 P.2d 837 (1940). In Angleton, the widow and surviving children filed workers compensation claims against the employer following Angletoris death. Angleton, who was employed as a truck driver for Starkan, was hauling a load of cattle when a pair of hijackers began following him in another truck. By conversation over the citizens band radio, one of the hijackers persuaded Angleton to pull off the highway to smoke marijuana. Angleton stopped his truck and got into the hijackers’ truck. While Angleton was smoking a marijuana cigarette, one of the hijackers shot and killed him. An ALJ denied all claimants’ requests for compensation for failure to prove that Angletoris death arose out of and in the course of his employment. On review, the assistant director found that Angletoris fatal injury arose out of and in the course of his employment and awarded compensation to the surviving minor children and funeral expenses, but denied compensation to Angletoris widow on the basis she had failed to file her claim in a timely manner. The widow petitioned the district court for review of the assistant director’s order. The district court affirmed. The widow appealed.
On appeal, the employer argued that Angletoris death did not arise out of and in the course of his employment because Angleton was smoking marijuana in another vehicle at the time of his death. The Angleton court first determined that absent the alleged marijuana episode, the accident occurred in the course of Angletoris employment. The court noted that at the time of his death, Angle-ton was en route to deliver his load of cattle to a feedlot on the route designated by his employer and that at the time Angleton pulled off the highway, he was driving his load in fulfillment of his employment obligations. The court further observed that Angleton was killed because he was responsible for the Starkan truck and cattle and his employment for Starkan transporting valuable cargo exposed him to an increased risk of injury of being robbed while on the highway. 250 Kan. at 718.
The Angleton court then examined whether the alleged use of marijuana changed the district court’s conclusion that the accident resulting in Angleton’s death arose out of and in the course of his employment. The district court had noted that the only testimony that Angleton pulled off the highway to smoke marijuana was the testimony by one of the hijackers and found that testimony to be inherently unreliable. The Angleton court pointed out that on appeal it was required to view the evidence in the light most favorable to the prevailing party. It noted that if the district court’s findings of fact are supported by substantial competent evidence, an appellate court is bound by those findings. The court noted that on appeal its jurisdiction was limited to review of questions of law, citing Craig v. Electrolux Corporation, 212 Kan. 75, 77, 510 P.2d 138 (1973); and Jones v. City of Dodge City, 194 Kan. 777, 779, 402 P.2d 108 (1965). The Angleton court noted that the courts, district and appellate, are to liberally construe the workers compensation statutes “ ‘to effect legislative intent and award compensation to the worker where it is reasonably possible to do so.’ ” 250 Kan. at 716 (quoting Poole v. Earp Meat Co., 242 Kan. 638, 643, 750 P.2d 1000 [1988]). The Angleton court determined that the record supported the district court’s finding that the hijacker’s testimony was unreliable and held that the testimony was not sufficient or rehable to support a finding that the worker’s conduct constituted a deviation from his employment. The court found that Angleton’s death arose in the course of and out of his employment. 250 Kan. at 720.
In Woodring v. United Sash & Door Co., 152 Kan. 413, the claimant was a traveling salesman who lived in Salina. Woodring was sent by his employer to meet a client in Enterprise, Kansas, to further the employer’s business. Prior to arriving at Enterprise, the claimant went to Minneapolis, Kansas, and picked up three friends who made the journey to Enterprise with him. When the worker arrived at Enterprise, he discovered the man he was supposed to meet was in Abilene. The claimant made no further attempts to contact the client, and instead proceeded to a local drink ing establishment with his friends for “an hour or so” where he imbibed intoxicating liquor. Thereafter, while driving recklessly on his return journey to Salina, claimant was injured when his car overturned.
The compensation commissioner found that the claimant’s injuries arose out of and in the course of his employment and entered an award of compensation on behalf of the claimant. The employer appealed to the district court. The district court reached the opposite conclusion, finding that because the claimant had abandoned his employer’s business, the injury did not arise out of and in the course of his employment. Claimant appealed.
The Woodring court noted that it had little concern of the disputed questions of fact in ordinary lawsuits and none whatsoever in workers compensation cases except to ascertain whether the record contained any evidence which on any theory of credence or want of credence would justify the trial court’s finding or conclusion of fact. The court stated that its responsibility was to determine questions of law.
The Woodring court then observed that where a business errand is the purpose of a worker’s journey, the social incident of taking a few guests along for the pleasure of their company would not affect the worker’s right to compensation for an injury sustained in the performance of that errand. The Woodring court noted that an intruding question was whether a worker, engaged in the employer’s service, could be permitted to recover compensation for an injury sustained while operating an automobile on the public highway under the influence of intoxicating liquor in violation of a Kansas statute which made such an act a criminal offense punishable by fine or imprisonment or both. It found that because the district court'had determined the business errand was finished or abandoned and that the worker had set about the pursuit of his own pleasure or indulgence, there was no theory of law or of justice which would impose on the employer the obligation to pay compensation for any injury sustained by the worker under such circumstances. 152 Kan. at 418.
The claimants rely heavily on Angleton and Rainear v. Rainear, 63 N.J. 276, 307 A.2d 72 (1973), for support of a finding of com pensability in this case. The claimants seek to distinguish Woodring, noting that Kindel was a passenger being driven home by his supervisor in a company vehicle and that the supervisor was required to return his employers vehicle. The employer fails to address the Angleton precedent, but contends that the rationale of Woodring should be applied to this case. It is important to note that in Angleton and Woodring there were allegations that the worker was violating the law. Here, although Kindel was intoxicated, the fact he drank was not a violation of the law nor was he violating a law, at the time he was killed.
In support of their arguments, both parties cite numerous cases from outside of Kansas. The most favorable case for the employer is Calloway v. Workmen’s Comp., 165 W. Va. 432, 268 S.E.2d 132 (1980). In Calloway, the West Virginia Supreme Court found the claimant salesman’s activity of drinking and tavern-hopping from midaftemoon until 11 p.m. amounted to an abandonment of any business purpose such that the injuries he received in an accident shortly thereafter while being transported home were not compensable. The Calloway court acknowledged that workers compensation laws generally recognize that an employee is entitled to compensation for an injury received while travelling on behalf of his employer’s business. 165 W. Va. at 434. The court noted that where an employee deviates from the employer’s business, the employee may be denied compensation if the injury occurs during the deviation and that once the employee ceases the deviation and returns to the employer’s business, a subsequent injury is ordinarily compensable. The court then observed:
“In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is returning to the business route or purpose. [Citations omitted.]
“The key is how the terms ‘major’ and ‘deviation’ are defined, and often courts do not address this point. It is apparent that a deviation can be determined only after the nature of the employment and the scope of the business trip are known. This involves an analysis of the employment relationship, the purpose of the trip, the employer’s rules or instructions relating to the trip, as well as past practices, in order to determine the reasonableness of the employee’s conduct as it relates to the employer’s business.
“A deviation generally consists of a personal or nonbusiness-related activity. The longer the deviation exits in time or the greater it varies from the normal business route or in purpose from the normal business objectives, the more likely that it will be characterized as major.” 165 W. Va. at 435-36.
The Calloway court then reviewed a number of cases in which various courts have characterized an employee’s deviations to be sufficiently major to deny compensation. 165 W. Va. at 436-39. The Calloway court concluded:
“In the present case, there is no dispute that the claimant was initially traveling on behalf of his employer in an attempt to solicit new business in the Logan County area. However, even under the facts liberally construed in his behalf, he had completed any company business in the midaftemoon when he and his fellow employee began to frequent taverns. The continuation of this activity until 11:00 p.m. was a major deviation, not only in time but also in its nature. It can only be viewed as an abandonment of any business purpose.” 165 W. Va. at 439-40.
The most favorable case for the claimants is Rainear v. Rainear, 63 N.J. 276. In Rainear, the New Jersey Supreme Court held that where an automobile accident had occurred while the decedent was on his way home from work along a proper and permissible route, decedent’s 10-hour stop at a restaurant and bar to eat and drink did not amount to such a departure from the decedent’s reasonable sphere of employment as to bar a compensation award. In that case, the decedent’s travel expenses were being paid by his employer. There was nothing in the record to confirm that drinking caused the accident. 63 N.J. at 279. The Rainear court reviewed a number of cases awarding compensation to employees injured following a deviation. The court stated:
“There is nothing in the compensation law which fixes an arbitrary limit to the number of hours of deviation which may be terminated with travel coverage resumed. Thus if the decedent ate dinner at [the restaurant and bar] en route home and stayed there simply watching television for hours before continuing on his intended travel home, there clearly would be no rational basis for failing to apply the broad remedial principles embraced in [other New Jersey workers compensation cases]. While the fact that he also did some drinking there may have influenced the Appellate Division’s negative result, the drinking really has no legal bearing here since there was no proof that the accident or death resulted from intoxication.” 63 N.J. at 286-87.
A deviation from the employer’s work generally consists of a personal or nonbusiness-related activity. The longer the deviation exists in time or the greater it varies from the normal business route or in purpose from the normal business objectives, the more likely that the deviation will be characterized as major. In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he or she has ceased the deviation and is returning to the business route or purpose.
Is there substantial evidence to support the Board’s finding of compensability, i.e., that Kindel’s death arose in the course of his employment? The employer provided transportation. Kindel was a passenger and not the driver. He was being transported home after completion of his duties. Despite approximately four hours at the Outer Limits, the distance of the deviation was less, than one quarter of a mile. Kindel was killed after resuming the route home. Under the facts, even though the worker was intoxicated, as a passenger in his employer’s vehicle, he was not committing a violation of Kansas law. Kindel was killed while engaging in an activity contemplated by his employer while traveling on a public interstate highway. The fact he had been drinking has no legal bearing on the present compensation determination since there was no proof that the accident or Kindel’s death resulted from Kindel’s intoxication.
The workers compensation statutes are to be liberally construed to effect legislative intent and award compensation where it is reasonably possible to do so. Poole v. Earp Meat Co., 242 Kan. 638, 643, 750 P.2d 1000 (1988). We note that the workers compensation law does not fix an arbitrary limit on the number of hours of deviation, which may be terminated with travel coverage resumed. Whether there was a deviation, and if that deviation had terminated, is a question of fact to be determined by the administrative law judge or the Workers Compensation Board. Under our standard of review, we find that the Board did not act unreasonably, arbitrarily, or capriciously and there is substantial evidence to sup port the Board’s conclusion that the fatal injury occurred in the course of Kindel’s employment.
Did Death Result Substantially From Intoxication?
K.S.A. 1991 Supp. 44-501(d) provides:
“If it is proved that the injury to the employee results . . . substantially from the employee’s intoxication, any compensation in respect to that injury shall be disallowed.’’
Employer contends that Kindel’s intoxication was a substantially causative factor in bringing about his death. Employer’s argument can be summarized as follows: (1) Kindel had a blood alcohol concentration of .26; (2) Kindel would have been substantially impaired and incapable of acting in a manner in which an ordinarily prudent person would act; (3) under Kansas law, a passenger who has knowledge of a danger, and circumstances are such that an ordinary person would speak out or take other positive action to avoid injury, has the legal duty to take the action an ordinary prudent person would take under the circumstances (see Ratterree v. Bartlett, 238 Kan. 11, Syl. ¶ 5, 707 P.2d 1063 [1985]); (4) had Kindel exercised the degree of care required of him, he would have stayed out of the vehicle; and (5) because Kindel got into the vehicle after stopping at the Outer Limits, he was killed. The employer concludes that under these circumstances Kindel’s death substantially resulted from his own intoxication, thereby barring a workers compensation claim for death benefits. Claimants respond that Graham, not Kindel, was driving the employer’s truck at the time of the accident and Kindel’s intoxication did not cause the accident or his death.
To defeat a workers compensation claim based on the worker’s intoxication, an employer must prove not only that the worker was intoxicated, but also that such intoxication was the substantial cause of the injury. The presumption of intoxication provided for under the Kansas criminal statute is inapplicable in workers compensation cases. Evidence of the blood alcohol concentration of a workers compensation claimant is relevant to the issue of the cause of the accident in which the claimant is injured but does not give rise to a presumption of intoxication. Poole v. Earp Meat Co., 242 Kan. 638, Syl. ¶¶ 4, 5. For an in-depth discussion of intoxication as it relates to workers compensation, see 1A Larsons Workmen’s Compensation Law § 34 (1995).
The ALJ did not address the issue of intoxication. On appeal, the Board noted that Graham was driving, not Kindel, and that K.S.A. 1991 Supp. 44-501(d) expressly requires that the intoxication of the claimant be shown as the cause of the injury before compensation is disallowed. The Board noted that it was the driver’s intoxication, not the worker’s, that caused the fatal accident. The Board concluded it would require “speculation beyond the reasonable inferences from the evidence” to conclude that Kindel’s own intoxication was a substantial cause of the accident
To this court, the employer asserts that Kansas courts have recognized that a passenger owes a duty to exercise that care which a reasonably careful person would use for his or her own protection under the existing circumstances. See McGlothin v. Wiles, 207 Kan. 718, Syl. ¶ 1, 487 P.2d 533 (1971). Under tort law, a passenger can only be liable for negligence in two situations: (1) where there was a failure to use due care for his or her own safety as a passenger in the automobile and (2) under a joint enterprise or when the passenger and driver had a special relationship which created some duty where the negligence of the driver would be imputed to the passenger. Akins v. Hamblin, 237 Kan. 742, Syl. ¶ 2, 703 P.2d 771 (1985).
Common-law defenses to tort theories of negligence do not apply to workers compensation claims. K.S.A. 44-545 provides that it shall be a defense for an employer
“in all cases where said employee has elected not to come within the provisions of the workmen’s compensation act . . . : (a) That the employee either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; or (c) that said employee was guiliy of contributory negligence: Provided, That none of these defenses shall be available where the injury was caused.by the willful negligence of such employer, or of any managing officer or of managing agent of said employer.”
Because Kindel was covered by workers compensation, these defenses are not available to the employer; therefore, Kindel had no common-law duty as a passenger.
In addition, the employer failed to prove that Kindel’s intoxication was a substantial cause of the injury. The testimony of Trooper McCool was that the alcohol level of the driver was a substantial cause of the accident. Neither the ALJ nor the Board concluded that the accident substantially resulted from Kindel’s intoxication. The fact that Kindel was a passenger, and not the driver, defeats the employer’s claim. The Board properly found that the employer’s attempt to prove Kindel’s intoxication caused the accident requires “speculation beyond the reasonable inferences from the evidence.” In essence,the employer asks this court to make a factual finding in the absence of any such finding by the Board. Because our review is limited to questions of law, we are required to decline this request.
Failure to Follow Safety Policies
The employer asserts that Kindel’s claim should be denied because he was violating known and established safety policies by consuming alcohol and utilizing company equipment while under the influence of alcohol. The claimants respond that the employer’s argument improperly centers on the nature of the activity involved in the deviation and asserts that analysis has no application to the facts of this case.
The employer first asserted this argument before the ALJ. The ALJ, in his factual findings, noted that “[t]he respondent/employer, Ferco Rental, had a strict alcohol and drug policy . . . . There is little dispute that Mr. Graham and Mr. Kindel were aware of the alcohol/drug policy.” No further mention is made of Ferco’s company policies in the text of the ALJ’s opinion. The Board, in its opinion, states:
“The fact that claimant had been drinking and even the type of bar may be emotionally charged factors. This is especially so in this case where respondent had a clear policy against drinking while driving company vehicles. Nevertheless, the activities of claimant during the deviation from employment do not have any real relevance to whether the accident which occurred after claimant returned to the route home in the company vehicle occurred in the course of employment.”
The employer fails to point out what particular provisions of the statutes were violated. In addition, the employer cites K.S.A. 1991 Supp. 44-501(d) as authority, but fails to specify why that statute disallows compensation. The case law and authority that are cited by the employer are directed to whether an injury can properly be said to arise “in the course of” employment, as opposed to whether a violation of company policy bars compensation. See Hoover v. Ehrsam Co., 218 Kan. 662, 544 P.2d 1366 (1976); 1A Larson’s Workmen’s Compensation Law §§ 31.00, 31.12 (1995). The employer has failed to show that compensation should have been disallowed under 44-501(d).
Affirmed. | [
-48,
-22,
-40,
-98,
24,
-30,
58,
26,
113,
-17,
103,
81,
-113,
-87,
5,
59,
-9,
29,
85,
107,
-13,
-77,
83,
-87,
-46,
-73,
-15,
-60,
-72,
74,
102,
-42,
79,
112,
10,
85,
-26,
72,
-53,
-40,
-52,
4,
-120,
-16,
27,
16,
-80,
122,
-26,
79,
33,
-114,
-13,
58,
25,
-57,
-84,
40,
91,
-84,
112,
113,
-53,
5,
-41,
17,
-125,
4,
-100,
7,
-48,
27,
-100,
-79,
40,
-4,
82,
-74,
-110,
-76,
33,
-119,
-52,
38,
99,
37,
13,
-27,
-20,
57,
14,
-6,
31,
-89,
-68,
24,
115,
-126,
-108,
29,
124,
54,
6,
-4,
-14,
5,
93,
108,
-113,
-49,
-76,
-111,
-49,
36,
-108,
-100,
-21,
-121,
35,
101,
-38,
-82,
94,
69,
122,
23,
79,
-112
]
|
The opinion was delivered by
Abbott, J.:
This is a direct appeal by the State from the trial court’s judgment of acquittal. We find the dispositive fact to be that the State did not properly reserve the question for appeal.
Highly summarized, the defendant was previously adjudicated as a juvenile offender because he made a terroristic threat. The court ordered the defendant placed in the Youth Center at Topeka. While awaiting transportation to Topeka, the defendant was placed in the Johnson County Juvenile Hall. He escaped, was recaptured, and was charged with aggravated escape from custody pursuant to K.S.A. 1994 Supp. 21-3810(a). The defendant stipulated to a waiver of juvenile jurisdiction and agreed to be tried as an adult by a jury.
To be convicted of aggravated escape, K.S.A. 1994 Supp. 21-3810(a) requires that the defendant escape while being held in custody “upon a . . . conviction of felony.” At the close of the State’s case, the defendant moved for a judgment of acquittal, contending that the State had not proven one element of the crime of aggravated escape. The trial court agreed, finding that the defendant was being held as a juvenile offender, not upon a conviction as a felon, and entered a judgment of acquittal. The following colloquy then took place:
“Anything further by the State?
“MS. TORLINE: Yes, Judge, first of all, I know it’s probably a little late with the Court’s ruling, but I would ask for a mistrial, based on the fact that this motion should have been made a long time ago, preliminary to the jury trial date.
“Secondly, Judge, I would be reserving this issue for appeal.
“THE COURT: Certainly. Court understands that. What would be the basis for the mistrial? In other words, the defendant did not dispute jurisdiction of the Court. The only question is whether or not the State has presented sufficient evidence under the charge and that was brought up at the defendant’s motion at the close of the evidence.
“MS. TORLINE: Judge, the basis for the mistrial is this case has been all the way through a prelim, and we get up today to jury trial date. Judge, this is not an issue that the State could have presented evidence based upon their motion to dismiss. They knew that — I mean, it doesn’t matter what evidence was presented at jury trial, they’re going to make this motion, and I think that it’s extremely late in coming, and should have been made a long time ago.
“THE COURT: Any argument by the defendant?
“MR. LEWIS: Your, Honor, this is a motion for judgment of acquittal. As the Court says, we are not contesting jurisdiction or anything of the sort. The motion for judgment of acquittal says that statute has certain elements and State has not met them, nothing more, and I think that it was raised at the appropriate time.
“THE COURT: All right. Anything final by the State?
“MS. TORLINE: No, Judge.
“THE COURT: Court is going to deny the State’s motion for mistrial, and the record should reflect — of course, the State, I’m sure, will wish to appeal that or may wish to appeal that also, but the Court will order the case dismissed and defendant discharged.”
The State then filed a timely notice of appeal, which states:
“Notice is hereby given that the State of Kansas, plaintiff, appeals from a Judgment of Acquittal entered in this matter on the 19th day of September, 1994, to the Supreme Court of the State of Kansas.
“The appeal hereby taken is directly to the Supreme Court on the ground that said judgment of Acquittal was entered following the close of the State’s case, pursuant to K.S.A. 22-3602.”
Six days after the notice of appeal was filed, the district court filed a journal entry of judgment, which states in pertinent part:
“The State makes its opening statement, presents evidence and rests.
“Thereupon, the defendant moves the Court for Judgment of Acquittal in this matter. The Court, being well and duly advised in the premises, finds that said motion should be sustained. The Court specifically finds that the defendant was not in custody following the conviction of a felony due to the fact that he was in custody as a juvenile following a juvenile adjudication of a felony.
“Thereupon, the state moves the Court for a mistrial in this matter. The Court, being well and duly advised in the premises, denies said motion.
“Thereupon, the state reserves its right to appeal.”
Kansas case law makes it clear that the State may not appeal from a judgment of acquittal. State v. Crozier, 225 Kan. 120, Syl. ¶ 4, 587 P.2d 331 (1978). However, the State may appeal on a question reserved. K.S.A. 1994 Supp. 22-3602(b)(3).
In State v. V.F.W. Post No. 3722, 215 Kan. 693, 694, 527 P.2d 1020 (1974), the defendant moved to dismiss the State’s appeal, contending that the State failed to properly reserve the question for appeal. This court considered and rejected the defendant’s motion, finding that no formal procedural steps are required by 22-3602 to reserve a question for appeal. However, the court pointed out that, in reserving the appeal, the State must furnish a sufficient record to permit review and “[t]his requires proper and timely objections be lodged, the trial court be advised of the basis for the objections and the appeal be properly perfected.” 215 Kan. at 695.
In State v. Marek, 129 Kan. 830, 834, 284 Pac. 424 (1930), this court held:
“[A]ll that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make a proper objection or exception at the time die order complained of is made or the action objected to is taken. The state can lay the foundation for its appeal in the same manner that the defendant can lay the foundation for his appeal.”
In Marek, the State properly reserved the questions for appeal because it clearly excepted two of the issues and specifically objected to remarks made by the trial judge. 129 Kan. at 831, 834.
The defendant recognizes that no formal procedural steps are required to reserve a question for appeal. However, the defendant argues that a defendant must lay the foundation for his or her appeal by filing a notice of appeal which gives the appellate court jurisdiction to hear the appeal. See State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994) (finding the Court of Appeals did not have jurisdiction to address a ruling which was not included in the notice of appeal). Since a defendant must lay such a foundation, the State must also lay a foundation for its own appeal by filing a notice of appeal which gives the appellate court jurisdiction to hear the appeal.
“It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in die notice of appeal.” Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d 598 (1994). In Hess, 254 Kan. at 718-19, the notice of appeal challenged “ 'the following portions of the jury verdict and judgment’ ” entered by the trial court:
“ T. The jury’s determination of comparative fault. (Special questions one and two).
2. The jury’s determination of the period of time over with payment of future economic loss would be needed. (Special question five).
3. The jury’s determination of net amount of collateral source benefits received to date. (Special question six).
4. The jury’s determination of net amount of collateral source benefits to be received in the future. (Special question seven).’ ”
The defendant argued that the appellate court lacked jurisdiction to consider the trial judge’s errors. This court held that the language in the notice of appeal “and the judgment entered by the court” was sufficient to allow an appeal of the trial judge’s alleged errors.
However, in Anderson v. Scheffler, 242 Kan. 857, 860-61, 752 P.2d 557 (1988), the trial court entered summary judgment for the defendant. One issue was whether the notice of appeal appealing from an April 21, 1987, judgment entered by the court was sufficient to give the appellate court jurisdiction to consider a different summary judgment ruling entered by the court on December 29, 1986. This court held that issue had not been designated in the notice of appeal; thus the issue could not be considered on appeal.
Here, the State’s notice of appeal referred solely to an appeal from the judgment of acquittal. It contained no general reference which could be liberally construed to include an appeal on a question reserved. See Hess, 254 Kan. at 719-20. As in Grant, 19 Kan. App. 2d at 691, there is no valid controversy as to whether the State complied with the statutory requirements. The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved. Because the only ruling referred to in the notice of appeal is one which is not subject to appellate review, this court lacks jurisdiction. See State v. Crozier, 225 Kan. 120, Syl. ¶ 4.
We are unpersuaded by the State’s argument that its mention of K.S.A. 1994 Supp. 22-3602 in the notice of appeal gives this court jurisdiction. A liberal and common-sense reading of the State’s notice of appeal is as follows: The notice of appeal is two sentences long. The first sentence clearly and unquestionably gives notice that the State is appealing “from a Judgment of Acquittal.” The second sentence tells us that the appeal from the judgment of acquittal is taken directly to the Supreme Court pursuant to 22-3602. K.S.A. 1994 Supp. 22-3602 is cited because it allows the State to appeal certain issues directly to the Supreme Court.
The State did not respond in its brief to the defendant’s argument that the appeal should be dismissed for lack of jurisdiction. We can only presume that the State’s argument would be as follows: In its notice of appeal, the State contends it is appealing directly to the Supreme Court pursuant to K.S.A. 1994 Supp. 22-3602. K.S.A. 1994 Supp. 22-3602(b)(3), allowing the State to appeal a question reserved, is the only section of 22-3602 which would permit a direct appeal to the Supreme Court. Thus, if the court did independent research and read the record, we could conclude that the State was appealing a question reserved. We think the State must give more guidance in its notice of appeal than that given in this case.
Appeal dismissed for lack of jurisdiction. | [
-48,
-30,
-3,
62,
27,
-31,
42,
28,
81,
-41,
103,
115,
-23,
-49,
5,
123,
95,
79,
116,
121,
88,
-73,
119,
-39,
-14,
-13,
81,
-43,
-77,
75,
-10,
-3,
72,
-16,
-54,
85,
6,
74,
-25,
84,
-114,
-123,
-119,
80,
-62,
10,
36,
123,
48,
14,
-79,
-114,
-13,
107,
26,
-61,
-55,
40,
-53,
-67,
-108,
88,
-22,
-121,
-49,
20,
-93,
-124,
-108,
-89,
80,
38,
-104,
56,
33,
-24,
115,
-108,
-122,
116,
111,
-117,
-84,
102,
98,
32,
28,
-21,
-67,
-119,
14,
51,
-83,
-26,
-103,
72,
75,
12,
-106,
-35,
117,
52,
6,
-8,
-17,
4,
17,
-20,
2,
-34,
-80,
-109,
15,
53,
18,
-103,
-29,
-91,
112,
97,
-50,
-30,
84,
87,
90,
-103,
-81,
-68
]
|
The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is the second time this case has been before the court. Originally, this was an action brought by the Kansas Baptist Convention (Baptists) and Hugoton Energy Corporation (Hugoton Energy) against Mesa Operating Limited Partnership (Mesa) to avoid or reform a 1952 contract, which fixed the price at which the Baptists and Hugoton Energy sold gas to Mesa and required them to pay actual costs and expenses. The district court concluded that Mesa had breached and thereby voided the contract as of May 25, 1988. The district court awarded damages to the Baptists and Hugoton Energy for the period between breach and judgment and s/i6 of proceeds less s/i6 of costs thereafter. Mesa appealed; the Baptists and Hugoton Energy cross-appealed from the district court’s determination of the amount of their recovery. On that first appeal, this court agreed that Mesa had breached the contract, but it concluded that the contract should have been reformed rather than terminated. The case was remanded with directions. Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 864 P.2d 204 (1993) (Mesa I). The district court reformed the contract, and damages were calculated at $243,215.06. The request of the Baptists and Hugoton Energy for prejudgment interest was denied. Mesa appeals from the judgment reforming the price provisions of the contract and awarding damages. The Baptists and Hugoton Energy cross-appeal from that part of the judgment which denied an award of prejudgment interest. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
The factual background for this appeal is stated in the court’s opinion in Mesa I and need not be restated here except as needed to resolve this appeal.
In Mesa I, the district court concluded that Mesa had breached the agreement on May 25, 1988, when it began drilling the third well and that the contract became void on that day. The district court further concluded that because the unit still existed, the Baptists and Hugoton Energy were entitled to s/i6 of the production from the unit. Accordingly, the district court ordered judgment for the Baptists and Hugoton Energy (1) in the amount of $185,220.86 for production through April 1992, (2) s/i6 of proceeds from unit production less expenses from May 1, 1992, to the date of the journal entry (July 27,1992) plus prejudgment interest, and (3) s/i6 of proceeds from future unit production less 5/m of reasonable costs and expenses.
On Mesa’s appeal from the district court’s judgment, this court agreed that Mesa breached the agreement on May 25, 1988, when it began drilling the third well. This court disagreed, however, that the contract should have been terminated as a result of the breach. This court stated:
“[T]ermination of the contract merely shifts the inequities from the plaintiffs to the defendant. The parties entered into a long-term executory contract in which Mesa obtained a long-term supply of natural gas and the plaintiffs initially received an acceptable price for their interest in the gas produced and sold under the contract. The remedy, therefore, should preserve the mutual benefits of this long-term contract under the changed circumstances. The least drastic remedy should be applied which will provide equity and justice to the parties. We note that plaintiffs’ cause of action includes, as an alternative to avoiding the contract, a prayer for reformation of the contract to require the defendant to pay market price for the natural gas. We conclude that reformation of the contract, and not termination, is the appropriate remedy which will best preserve to each party the benefits they initially intended and contemplated receiving from the contract.” 253 Kan. at 737.
With regard to the task of the district court on remand, this court stated:
“Upon remand, the district court must determine to what extent the price and cost terms for drilling and operating of the natural gas wells and for sale of the natural gas should be modified. The district court should fashion a remedy modifying the contract in fight of the changed circumstances that have rendered the contract unconscionable. To avoid injustice to the parties, the modification should attempt to preserve the original purpose and expectations of the parties in fight of the changed circumstances. Since enforcement of the contract as modified is the appropriate remedy in the present case, it follows that the damages for defendant’s breach of the contract must be determined based upon the contract as it is modified by the district court.” 253 Kan. at 740.
On June 1, 1994, the district court heard arguments of counsel on the appropriate remedy and accepted the briefs and exhibits of the parties. It was agreed that counsel’s statements reflected the substance of what witnesses for the Baptists and Hugoton Energy would have said and that Mesa’s Exhibit M would serve to illustrate the content of testimony it would have presented. Post-hearing suggestions were filed. On June 23, 1994, the district court filed its findings. After reciting the respective contentions of the parties, the district court stated:
“[Mesa] operates its wells by gathering fines from each well to a central plant where gasoline and other liquifiable hydrocarbons are removed. The processed gas stream is then sold to Kansas Power and Light Company (KP&L) at the ‘tailgate’ of this plant. . . . [T]he court finds this extraction process represents approximately 20% of the total revenues received by Mesa from field revenue. ...
“[The Baptists and Hugoton Energy] have conceded that the drilling costs of the infill well are reasonable. This court finds that [Mesa’s] overhead and operating costs, while above the reported field averages, are reasonable. This court further finds that Mesa, in its self-interest, is marketing the gas under contract to KP&L that exceeds the spot market and is beneficial to both seller and buyer.
“This court therefore concludes that the reformation should be achieved by using Mesa’s sale price as to all production from the wells and offsetting this amount by the current charges as to operation and overhead and die $174,000.00 drilling costs for the infill well.
“This market price should be applied to all production ....
“This change allows reformation with only a change in the price provision of the original contract. It allows Mesa to extract the liquid hydrocarbons as anticipated in sale of the whole gas stream under the original agreement and allows this margin to Mesa for distribution and processing costs. It should be noted that value of these products has increased since the date of the original contract in paralleling the rise in crude oil prices. This means Mesa will pay its tailgate price to each well’s individual production based on a 14.65 p.s.i.a. which is the industry standard. Mesa will retain the extracted products without accounting to [the Baptists and Hugoton Energy],
“[T]his reforms the contract so current values are applied to both price (revenue) and costs. This places the parties in the same relative economic position they were in on the 1952 date of the original contract. It retains the mutual benefit of a life of the field commitment for the production of natural gas and for improvement and development of that production. It retains for Mesa the profit of the extraction of components of the gas stream without accounting to the plaintiff owners. It obviously benefits [the Baptists and Hugoton Energy] by restoring ownership of minerals to them that were eliminated by a literal application of the original contract.”
With the accounting which had been provided by the parties attached as Exhibit A, the district court filed its journal entry of judgment on August 19,1994. Damages computed on the modified contract for the period from May 25, 1988, to June 1, 1994, (the date of the hearing on remand) totaled $243,215.06, and prejudgment interest was denied. It is expressly stated that “[e]xcept to the extent that it is reformed by this Journal Entry of Judgment, the 1952 Contract remains in full force and effect.” The obligation of the Baptists and Hugoton Energy for costs and expenses was not changed; they remain obligated to pay s/i6 (31.25%) of all costs and expenses for the unit. With regard to Mesa’s purchase of gas from the Baptists and Hugoton Energy, the journal entry states that Mesa remains obligated “to purchase, at the wellhead, all of plaintiffs’ 31.25% interest in and to gas produced” from the unit. Mesa retained the right to process gas from the unit, to remove gasoline, liquids, and liquefiable hydrocarbons, and to retain all proceeds from their sale. The changes in the price to be paid by Mesa for the gas of the Baptists and Hugoton Energy are stated in the journal entiy as follows:
“In consideration for the purchase of plaintiffs’ 31.25% interest in and to gas produced from the Baptist-Fischer Unit, defendants shall pay to plaintiffs the following amounts:
a. the actual price per Mcf received by defendants for sales of irrigation gas at the wellhead from the Baptist-Fischer Unit multiplied by 31.25% of all volumes of irrigation gas (measured at a pressure base of 14.65 pounds per square inch absolute, with an assumed flowing temperature of sixty degrees (60) Fahrenheit) actually sold from the Baptist-Fischer Unit; and
b. the actual price per Mcf which defendants receive from the sale or sales of the residue gas stream attributable to the Baptist-Fischer Unit at the tailgate of any processing plant multiplied by 31.25% of all wet wellhead volumes of gas produced at die wellhead of the Baptist-Fischer Unit (measured at a pressure base of 14.65 pounds per square inch absolute, with an assumed flowing temperature of sixty degrees (60) Fahrenheit), after deducting any volumes of irrigation gas previously sold at the wellhead.”
Mesa appealed from the district court’s judgment; the Baptists and Hugoton Energy cross-appealed from the district court’s denial of their request for prejudgment interest.
Mesa stated two issues to be decided on appeal:
1. Did the trial court err as a matter of law by making a new contract for the parties in violation of the Supreme Court mandate in Mesa I?
2. Did the trial court abuse its discretion in the manner in which it “reformed” the 1952 contract?
This formulation appears to have been derived from the standard of review which is advocated by Mesa. Mesa cites Gillespie v. Seymour, 250 Kan. 123, 143, 823 P.2d 782 (1991), where the court stated: “Our test on appellate review is not whether the remedy fashioned is the best remedy that could have been devised, but whether the remedy so fashioned is erroneous as a matter of law or constitutes a breach of trial court discretion.” In that case, the district court assessed damages for the diminution in value of plaintiffs’ trust assets, and this court was reviewing the computation of damages. The procedural status of this case, in contrast, is an appeal after remand.
The parties cite no case to the court in which the scope and extent of review on subsequent appeal is discussed. The general rule was stated in W.K.H. Trust Co. v. Building Co., 160 Kan. 605, Syl. ¶ 1, 164 P.2d 143 (1945), as follows:
“In this jurisdiction where, on appeal, a case has been reversed and remanded a trial court has no duty to perform except to spread the mandate of record and to proceed to have the judgment of the appellate court carried out. Such court has no authority to consider other matters not contained in the mandate and its authority is restricted to the rendition of judgment as authorized by its terms.”
In W.K.H. Trust Co., we further stated: “Besides, whether a trial court has complied with the decision and mandate of the appellate court is purely a question of law and our decisions are that a motion for a new trial is never necessary to secure review of such a question.” 160 Kan. at 609.
In Mesa I, this court directed the district court to study the price and cost terms of the contract and to make modifications which would “preserve the original purpose and expectations of the parties in light of the changed circumstances.” 253 Kan. at 740. In response to the mandate, the district court considered the parties’ contentions and proposed modifications, modified the price term of the agreement, and computed damages using the modified price. Mesa appealed, complaining only of the legal suitability of modifications to the agreement and not of the process by which the district court judge reached his conclusions. On this court’s review of the second appeal, therefore, the only issue is whether the district court’s reformation satisfies the mandate. There is no reason for the court to review its former decision in this same cause and on the same facts. This court will not consider questions which could have been answered in the previous appeal, nor does this court engage in a full-scale review of the proceedings in the district court. Instead, at issue is the adherence to and enforcement of this court’s instructions to the district court. Thus, the district court’s reformation of the contract will be reviewed for conformance with the mandate.
The purpose of the remand was to reform the agreement so that it again reflects the actual agreement of the parties, which had been distorted by the extreme intervening occurrences. This court directed the district court to “preserve the mutual benefits” of the agreement and cautioned that “[t]he least drastic remedy should be applied: which will provide equity and justice to the parties.” 253 Kan. at 737.
Mesa contends that the district court’s reform of the price component of the contract creates a windfall for the Baptists and Hugoton Energy instead of restoring the original expectations of the parties, as instructed by this court. Mesa specifies the following as original expectations which have been frustrated by the reformation: In 1952, (1) the Baptists neither contracted for nor intended to receive market price or market value for sale of their gas; (2) the Baptists anticipated that their margin would shrink as costs increased; (3) Mesa’s predecessor expected to make a profit from the resale of the gas it purchased from the Baptists; and (4) the type of contract entered into by the parties in 1952 was a “gas purchase and sale contract.”
Whether the reformation is in accord with the mandate may be determined by a comparison of verifiable original expectations with established results of modification. Material changes in the parties’ mutual benefits would raise a serious question whether the remedy conforms to the mandate.
As to Mesa’s first specification, Article V of the 1952 contract provided in pertinent part:
“[The Baptists] hereby agree to sell and [Mesa] agrees to purchase at the wellhead for such time as any natural gas is produced from the Unitized Area the proportionate share of such natural gas owned by [the Baptists] at a price of lOq per MCF, measured at a pressure base of 16.4 pounds per square inch absolute, with an assumed flowing temperature of sixty degrees (60°) Fahrenheit. Such price shall be full consideration for such natural gas, including all constituents thereof, and including, but not limited to, its content of gasoline and liquefiable hydrocarbons.”
Article X provided in pertinent part:
“It is specifically understood and agreed that . . . the aforesaid price to be paid by [Mesa] to the other parties hereto for their proportionate share of the gas shall be full consideration for such natural gas, whether or not the market value of such gas at any given time shall be more or less than such amount.”
Mesa seems to be contending that Article X of the 1952 contract speaks for itself and establishes that the Baptists did not contract for market price for their gas.
In fact, the price set in the 1952 contract was right at market price. The price in the contract is 100/Mcf at 16.4 p.s.i.a. (pounds per square inch absolute). According to Mesa, that figure would be 8.90/Mcf at 14.65 p.s.La. A table from the Energy Information Administration/Natural Gas Annual 1987 Volume II shows the average wellhead price of marketed production in 1952 as 80/Mcf at 14.65 p.s.i.a. It also shows that from 1930 to 1952, the average wellhead price fluctuated only 30, from 80 in 1930 to 50 in 1940 and back up to 80 by 1952.
We do not find from the record and arguments presented to this court that the Baptists did not contract in 1952 to receive market price or market value for their gas. Despite the .express disclaimer in Article X of the contract, the fact remains that the price set in the contract closely reflected the then current market price or value.
With regard to the result of the district court’s modifying the terms of the contract, there is no real dispute that the Baptists and Hugoton Energy receive market price or value for the sale of their gas. The Baptists and Hugoton Energy prefer to say that they receive “a current reasonable price for the gas at the wellhead.” In any case, the parties agree that the price paid by KP&L to Mesa for the gas it purchases at the tailgate of the processing plant is a current reasonable price. Under the reformed contract, the Baptists and Hugoton Energy receive from Mesa for their gas the same price Mesa receives from KP&L. Thus, they receive a current reasonable price.
There are no glaring discrepancies between verifiable original expectations regarding market price/value and the results of modification. Both could be described as current reasonable prices in that they closely reflect the market.
The Baptists and Hugoton Energy make the additional argument that this court’s opinion in Mesa I required the district court to set the reformed price term at market price. They note that a commentator so interpreted the court’s opinion. Newsletter, Oil, Gas & Mineral Law Section of the Kansas Bar Association, Vol. 6, No. 1 (Jan. 1994), and Pierce, Case Law Update—Mischief or Enlightenment? Yes!, 112th Annual Meeting, KBA, Oil, Gas & Mineral Law Section (June 1994). Writing about the remedy, the court did state:
“We note that plaintiffs’ cause of action includes, as an alternative to avoiding the contract, a prayer for reformation of the contract to require the defendant to pay market price for the natural gas. We conclude that reformation of the contract, and not termination, is the appropriate remedy which will best preserve to each party the benefits they initially intended and contemplated receiving from the contract.” 253 Kan. at 737.
The market or reasonable price of the gas is only one element considered by the district court in reforming the contract and must be kept in perspective. The requirement to reform the agreement flows from Mesa’s breach in drilling the third well and is affected by the tremendous increase in both price and costs.
The Baptists and Hugoton Energy offer K.S.A. 84-2-305 as additional support for the district court’s changing the price term from 100 to market price. The provision states in pertinent part: “The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery.” K.S.A. 84-2-305(1).
As to Mesa’s second specification, Mesa contends that the Baptists “must have contemplated and anticipated” that its margin would diminish as costs increased. It is a matter of common sense, as Mesa suggests, that unfixed costs can bite into fixed income, but the size of the bite may be a surprise. In Mesa I, this court stated: “Although the parties could have anticipated some change in the drilling and operating costs and the market price for natural gas, we agree with the district court that the parties could not have reasonably foreseen at the time of entering the contract the tremendous increase that has occurred.” 253 Kan. at 736.
Mesa also attempts to establish this point by showing that the Baptists’ earnings from the unit before this suit was filed nearly equaled the amount which their attorney predicted they “would receive over the entire life of the lease.” Mesa’s point is not well taken. The Baptists’ attorney wrote in 1953 that an estimate of net income “over a period of 20 or 30 years might [be] ... as much as $100,000.00.” Gas has been produced for 42 years, and there is no indication that an end of “the entire life” of the unit is in sight. When srut was filed in 1988, the unit had been producing for 35 years, and, according to Mesa, the Baptists had received net gas income of $81,257 and $13,757 for the sale of 90% of its minerals to Hugoton Energy.
Mesa makes the related argument that the net income anticipated by the Baptists in 1952 will be far exceeded by projected profits under the reformed contract. The net income which the Baptists and Hugoton Energy will receive under the reformed contract for the period from May 1988 to the end of the unit’s productive life is predicted by Mesa to be $1,872,893. Mesa states that this figure is “Calculated from Court’s Findings.” The calculation surely must involve the predicted remaining economic life of the unit, but this court is unable to determine what that is or what other factors are in the calculation. In any event, comparison of (1) an estimate of net income of the Baptists and Hugoton Energy from 1988 to the end of the unit’s productive period with (2) what Robert Johnson, one of the Baptists’ original attorneys in 1952, suggested the net income might be for the period from 1953 to 1973 or 1983 establishes little except the tremendous increase in the price of gas.
Mesa, in its third specification, contends that in 1952 its predecessor expected to make a profit “on the resale of gas of at least 50%.” Mesa states that support for the amount of profit expected is in the 1948 contract with KP&L and in the record on appeal and the opinion in Matzen v. Hugoton Production Co., 182 Kan. 456, 321 P.2d 576 (1958). What Mesa refers to as the Matzen record on appeal actually is the appellant’s abstract of the record, Attachment C to Mesa’s brief, which was stricken at the request of the Baptists and Hugoton Energy. The 1948 contract between Hugo-ton Production Company and KP&L provides that Mesa’s predecessor will receive no less than 126 per Mcf at 14.9 p.s.La. The contract provided for price adjustments at five-year intervals. In November 1954, the base price for processed gas was raised to 15.650 per Mcf at 14.9 p.s.i.a. 182 Kan. at 458. As we have seen, the 1952 contract between the Baptists and Hugoton Production Co. set the price at which Hugoton Production Co. bought gas from the mineral owners at 100 per Mcf at 16.4 p.s.i.a., which, according to Mesa, converts to 8.90 per Mcf at 14.65 p.s.La. Thus, it appears that in 1952 the difference between what Hugoton Production paid and what it was paid was approximately 30, which could increase but not decrease.
Mesa hikes the expected margin figure from 25% to 50% by giving itself the benefit of the doubt at every turn. First, Mesa asserts that its predecessor “knew,” based on increasing prices in the Hugoton Field, that the price paid by KP&L would increase under the escalation clause of the 1948 contract. Mesa purports to show what its predecessor knew about increasing prices at the time it entered into the contract in July 1952 by recounting prices and price harbingers from both before and after 1952. Although the post-July 1952 indicators show that prices did climb, they are not germane to what Hugoton Production was forecasting when it signed the contract with the Baptists. Mesa gives the following examples of prices and upward price movement from the period before the 1952 contract: In 1948 “ ‘the prevailing price for die gas in the [Hugoton] field was approximately five and one-half cents per M.c.f. based on 16.4 pounds p.s.i.a.’ ” Mesa I, 253 Kan. at 720 (quoting Matzen, 182 Kan. at 458). “The supply was greatly in excess of the market demands.” Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 724, 222 P.2d 704 (1950). In 1949, in response to a petition filed by royalty owners alleging that preventable waste existed due at least in part to the lack of price support, die KCC set the minimum price for Hugoton Field gas at 80 per Mcf at 16.4 p.s.La. Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P.2d 645 (1963), involved a 1950 gas purchase contract in which the price for Hugoton Field gas was set at 8.40 per Mcf (unspecified pressure) until June 1961, when it would increase to not less that 120 per Mcf. Second, Mesa asserts that its predecessor knew that the overall price it received from KP&L would exceed 120 per Mcf because, under the 1948 contract, the price of gas sold to KP&L for power plant use, as opposed to resale gas, was 150 per million British Thermal Units (MMBtu). Examination of the 1948 contract discloses that it tied the power plant gas price to the price of coal, provided for semi-annual adjustment up or down, and established a floor of 120. In its brief, Mesa states: “By letter of December 30, 1949, KP&L and [Hugoton Production] had agreed that for billing purposes it would be assumed that 25% of all volumes of gas sold to KP&L were consumed for power plant use, and were to be billed at 150 per MMBtu.” Examination of the letter discloses that the 25% assumption was to operate only through 1954. Thus, neither the 150 price nor the 25% volume was fixed.
Because Mesa exaggerated the degree to which the contract and the letter favored it, there is little reason to credit Mesa’s second assertion. Moreover, we do not know from material provided by Mesa whether ¿ price per Mcf at 16.4 p.s.i.a. is comparable to a price per MMBtu. In summary, a reasonable inference may be drawn from the'precontract prices that Mesa’s predecessor anticipated an upward trend in prices. It reasonably follows that, under the “weighted average price” formula of the 1948 contract, Mesa’s predecessor anticipated upward adjustments of the price paid by KP&L. The upward adjustments would reasonably have been expected to somewhat increase the 30 profit. Mesa’s assertion that its predecessor “reasonably contemplated receiving a margin on the resale of gas of at least 50%,” however, cannot be established from the facts and figures supplied by Mesa.
The remedy devised by the district court completely eliminates profit for Mesa from the Baptists/Hugoton Energy gas sold to KP&L. Thus, Mesa’s predecessor’s 1952 expectation of making profit from the resale of the gas it purchased from the Baptists was not satisfied by the reformation. The 1952 expectations for overall profitability, however, may be met or even exceeded despite elimination of the margin from this particular source.
In specification four, Mesa contends that the district court’s reformation has the effect of making a completely new and different type of contract for the parties. Mesa contends that the gas purchase and sale contract, by which it bought gas at the wellhead from the Baptists and sold it to KP&L at the tailgate of the processing plant, became a gas processing contract, by which Mesa’s only revenue is derived from the sale of the liquid hydrocarbons extracted from the gas during processing. Under the original contract, Mesa’s predecessor derived revenue from the sale of extracted hydrocarbons as well as from resale of the gas to KP&L.
The Baptists and Hugoton Energy contend that Mesa’s proposed methods of reformation would have changed the type of agreement but that the district court’s solution did not. They characterize the 1952 contract as a revenue sharing/cost sharing arrangement. Mesa presented the following four suggestions to the district court: (1) Baptists and Hugoton Energy continue to receive the 1952 contract price (lOp/Mcf at 16.4 p.s.i.a.) for gas and pay no costs; (2) the Baptists and Hugoton Energy receive a fixed percentage of the sale price of gas and pay no costs; (3) the Baptists and Hugoton Energy receive the 1952 contract price for 67.6% of the gas (reserves accounted for by first two wells) and market price for 32.4% and would pay reduced costs; and( 4) the Baptists and Hugoton Energy would receive the 1952 contract price increased annually either by 4% or according to the Producer Price Index for Commodities and would pay reduced costs. According to the Baptists and Hugoton Energy, the first would remove the cost sharing aspect of the 1952 contract. The second also would eliminate cost sharing and would create a lease royalty arrangement. The third would divide a unit agreement into three well contracts with exceptionally disparate terms. The fourth would restructure the economic arrangement by inserting a price escalation clause into the agreement. In contrast, the district court’s reformation of the price term of the agreement, they argue, did not restructure tire deal and preserved virtually all terms.
Mesa argues that the revenue it earns from the sale of extracted liquids “does not represent a 'net profit’ to Mesa.” The first reason Mesa offers for this alleged effect is that Mesa pays to the Baptists and Hugoton Energy the “tailgate” price for wellhead volumes. According to Mesa, the extraction of liquid hydrocarbons from the gas reduces the volume so that KP&L buys less gas by volume from Mesa than Mesa buys from the Baptists and Hugoton Energy. Be cause the price, at least of the gas not destined for power plant use, is set by volume, Mesa contends that it pays more to the Baptists and Hugoton Energy than KP&L pays to it. The second reason for the alleged effect is that Mesa pays the costs incurred between the wellhead and the tailgate of the processing plant. According to Mesa, the contract charges none of the costs of gathering, compressing, and transporting the gas to the mineral owners.
Both “reasons” given by Mesa accurately state the terms of the contract, but neither independently nor in combination do they necessarily lead to the conclusion that revenue from the sale of liquid hydrocarbons “does not represent a ‘net profit’ to Mesa.” The district court found that the “extraction process represents approximately 20% of the total revenues received by Mesa from field revenue.” Moreover, the contention is of questionable relevance to the question of the reformation of the contract. The sale of all extracted liquid hydrocarbons, including Mesa’s u/i6, provides Mesa with income from the unit. Mesa’s complaint that it pays to the Baptists and Hugoton Energy more dollars than it receives from KP&L for their 5/i6 of the gas would necessarily lead to the conclusion that revenue from the sale of liquid hydrocarbons did not represent a net profit only if the difference between what it pays and what it is paid is greater than total liquid hydrocarbon sales from the unit. Total liquids sales, however, are not before the court, either in figures or in the scope of the inquiiy. Preserving the original purpose and expectations of the parties with respect to one another is the goal of contract reformation. As previously discussed, in 1952 the difference between what Hugoton Production paid under the contract with the Baptists and what it was paid by KP&L was approximately 30. Then, as now, the volume of gas for which the Baptists were paid was determined at the wellhead. The reduction in volume from processing resulted in less gas being sold to KP&L than was purchased at the wellhead. The 30 margin, therefore, was only gained on the volume sold to KP&L. Then, as now, the operator paid costs of gathering, compressing, and transporting. Then, as now, the operator was entitled to revenue from the sale of extracted liquids. Then, as now, the benefits of the contract were not measurable strictly from the net income of one layer of a multi-tiered operation. In this case, all parties gained the advantage of unitization of their 640 acres, Mesa’s predecessor obtained a long-term supply of natural gas, the holders of the mineral rights obtained operation of the unit, and Mesa’s predecessor’s production costs were to be borne in proportion to ownership of gas production. These benefits remain under the reformed contract.
Mesa argues that its “reserve-based, weighted-average price approach,” the third proposal described above, better preserves the mutual benefits of the 1952 contract than does the district court’s reformation of the price term. Mesa argues that its proposal gives to the Baptists and Hugoton Energy the benefit of current prices for gas from the infill well and preserves for Mesa the benefit of the 1952 fixed price on gas from the other two wells. In contrast, Mesa argues, the district coürt’s reformation deprives Mesa of the benefit of revenue from the post-processing sale of the Baptists and Hugoton Energy’s gas. As is true of most of Mesa’s arguments to this court, this argument diverts the focus away from the actual inquiry, which is whether the reformation conforms to the mandate. This court’s review is not to measure the parties’ proposals for reformation against the method adopted by the district court to see which conforms most closely to the mandate. Only if we find that the district court’s reformation was not in accord with the mandate would there be occasion to examine Mesa’s suggested methods of reforming the contract. Here, Mesa contends that its revenue from post-processing sale of the Baptists and Hugoton Energy’s gas is a benefit without which the mandate is not satisfied. We note, however, that Mesa initially proposed to pay to the Baptists and Hugoton Energy “the actual amount which Mesa received from resale of the residue gas stream.” In other words, Mesa’s own initial suggestion to the district court deprived it of any revenue from post-processing sale of the Baptists and Hugoton Energy’s gas to KP&L.
Mesa’s final argument is that the district court’s reformation of the contract is arbitrary and out of sync with equitable principles. Mesa argues that the arbitrary, inequitable remedy constitutes an abuse of the district court’s discretion. We consider this contention as it relates to the remedy’s conformance with the mandate.
The arbitrary nature of the remedy is demonstrated, according to Mesa, by its exceeding what was requested by the Baptists and Hugoton Energy. They asked the district court “to provide for a price at fair- market value . . . adjusted, if at all, by a minimal marketing margin ... of no more than one and one-half percent, and [to] modify the cost provision of the contract to provide ... to Mesa exactly the median amount of cost.” We do not know whether the net gain by the Baptists and Hugoton Energy exceeded what they requested. Although the Baptists and Hugoton Energy stated that they would accept 98.5% of the price paid by KP&L and they received 100%, what they gained in the price term was moderated by the district court’s denying their request for modification of the cost provision.
Arbitrariness also is shown, according to Mesa, in the windfall bestowed on Hugoton Energy. Mesa asserts that Hugoton Energy will receive a 12,000% return of $1,684,200 on its investment of $13,757.17 for 9/io of the Baptists’ holdings. The Baptists and Hugoton Energy do not dispute the figures. Instead, they urge this court to disregard the argument. First, they contend that unjust enrichment is an argument or issue which was decided in Mesa I and which may not be resurrected in this remedy phase of the case. Second, they contend that Mesa, an adjudged wrongdoer in that it breached the 1952 contract, is not in a position to demand equity. Mesa did raise the unjust enrichment in Mesa l, and it was rejected by this court. Since it was not affected by the reversal of the district court’s judgment, it is res judicata. Coryell v. Hardy, 146 Kan. 522, 525, 72 P.2d 457 (1937).
We next turn to the Baptists and Hugoton Energy’s cross-appeal. The journal entry contains the following disposition of questions of prejudgment interest:
“Plaintiffs’ request for prejudgment interest is denied for the reason that plaintiffs’ claim does not involve a liquidated amount which is definitely ascertainable by mathematical computation, and the claim has been the subject of a bona fide dispute between the parties. Because the Court is not allowing plaintiffs prejudgment interest for past periods, defendants shall not be entitled to the contractual interest rate on any drilling, operating or overhead costs owed by plaintiffs for past periods.”
The Baptists and Hugoton Energy make three arguments why they should have been awarded prejudgment interest on the amount of the damages awarded for the period from the breach of contract to the entiy of judgment. First, they contend that the law-of-the-case doctrine precluded the district court’s changing its initial decision to award prejudgment interest. Second, they contend that their claim constituted a liquidated claim for which an award of prejudgment interest was appropriate. Third, they contend that equitable principles support an award of prejudgment interest. Without citation to authority, they assert that the standard of review on this issue is de novo.
Mesa agrees that this court’s review is de novo on the legal questions whether the initial award of prejudgment interest became the law of the case and whether the claim of the Baptists and Hugoton Energy was liquidated. Mesa, however, contends that “in deciding whether the district court erred in denying prejudgment interest, the standard is whether the court abused its discretion.” It relies on Farmers State Bank v. Production Cred. Ass’n of St. Cloud, 243 Kan. 87, Syl. ¶ 7, 755 P.2d 518 (1988), which states:
“The district court has the discretion to award prejudgment interest at the prejudgment rate provided by K.S.A. 16-201 on an unliquidated claim when a party has had use of the money, the opposing party has been deprived of that use, and the order is necessary to award full compensation.”
Thus, it appears that under the authority cited by Mesa, the application of an abuse of discretion standard of review is applicable to interest on unliquidated claims.
An award of prejudgment interest is governed by K.S.A. 16-201, which provides in pertinent part:
“Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made.”
In the journal entry from which the first appeal in this case was taken, the district court found: “Under the doctrine of unjust enrichment, Mesa is liable for interest on moneys of the plaintiffs that it has withheld.” The district court further stated:
“The plaintiffs are entitled to judgment in the amount of $185,220.86. This amount includes payments due for production through the month of April 1992 (except for the proceeds from the sale of helium for the month of April 1992) and interest through April 30, 1992. Plaintiffs are entitled to further judgment in the amount of 5/16fhs of the proceeds from the sale of the products of the wells, less reasonable operating and production expenses, for the period from May 1,1992, to the date of this Journal Entry, with additional prejudgment interest.”
In April 1992, the district court judge issued a memorandum clarifying previous rulings and setting the stage for final disposition of the matter. The journal entry was filed on July 27, 1992. Even though the district court judge’s memorandum dated April 16, 1992, states, “Under authority of the cases requiring interest on suspended royalties, I would impose prejudgment interest in this case based on stipulations filed of the average weighted price received by defendant from this unit, less reasonable costs of production, since the date of breach of the contract,” from a plain reading of the journal entry, one would conclude that the award of prejudgment interest applied only to 5/i6 of the proceeds from gas production less expenses for the period May 1 to July 27,1992.
Mesa’s notice of appeal states that it appealed from “all adverse rulings and from those parts of the judgment below which . . . enter a money judgment against Mesa for the value of gas taken after May 25, 1988, including prejudgment interest.” Prejudgment interest, however, was not an issue raised by Mesa in its briefs in Mesa I.
The Baptists and Hugoton Energy contend that Mesa’s failure specifically to contest its liability for prejudgment interest, which was a part of an appealable order, caused the ruling to become the law of the case. They rely on State v. Finical, 254 Kan. 529, 532, 867 P.2d 322 (1994); Stamps v. Consolidated Underwriters, 208 Kan. 630, 636, 493 P.2d 246 (1972); and Grohusky v. Atlas Assur ance Co., 194 Kan. 460, 462, 399 P.2d 797 (1965). For application of the law of the case to a second appeal, they cite Estes v. Zinc Co., 97 Kan. 774, Syl. ¶ 2, 156 Pac. 758 (1916), and Harwi v. Klippert, 73 Kan. 783, 85 Pac. 784 (1906) (quoting Headley v. Challis, 15 Kan. 602, Syl. [1875]). All authorities cited by the Baptists and Hugoton Energy support the principle that an appeal must be taken from an appealable ruling of the district court in order to prevent it from controlling further proceedings. “Right or wrong— that ruling, from which no appeal was taken, became the law of the case.” Grohusky, 194 Kan. at 462. However, in Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 254-55, 679 P.2d 206 (1984), we said:
“The district court in this case found in its initial conclusions of law that the contract was reasonable in its scope. The appellant did not appeal from that ruling. Consequently the Court of Appeals stated: ‘The trial court found the covenant in this case to be reasonable and that point, is not disputed on appeal.’ [Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 313, 657 P.2d 589, rev. denied 233 Kan. 1092 (1983)]. This would seem to bar the raising of the issue now since the general rule is where appellant fails to brief an issue, that issue is waived or abandoned. Friends University v. W.R. Grace & Co., 227 Kan. 559, 561, 608 P.2d 936 (1980). On remand, however, the district court again found the agreement reasonable. Also, appellant validly argues the issue was not relevant until the case was remanded and the district court applied the restrictive covenant of the contract for the first time. The trial court finding there was no consideration for the contract provision rendered its determination of reasonableness mere dicta. Richter raised the issue of reasonableness on remand. Thus, the issue is properly before us."
Here, the issue of prejudgment interest was before the trial court on remand.
Mesa concedes that it did not expressly raise the question of prejudgment interest in its brief on the first appeal, but it argues that the district court’s award of prejudgment interest did not thereby become the law of. the case. Mesa contends that on the first appeal, the award of prejudgment interest, of necessity, was overturned by this court along with the award of damages and the rationale for the awards. In Mesa’s words, “[t]his change of theories for determination of damages necessarily included the reconsideration of the issue of prejudgment interest, since the trial court’s earlier legal basis for granting prejudgment interest was no longer applicable.” We agree.
Under a plain reading of the original decree, the district court awarded damages in an amount equal to s/i6 of the proceeds from the gas produced from the unit from May 25, 1988, through April 1992 plus s/i6 of the proceeds less reasonable operating and production expenses from May 1, 1992, to July 27, 1992, the date the journal entry was filed. It appears that the rationale for the measure of damages was that in the absence of a contract setting different terms, the Baptists and Hugoton Energy should receive a share of all proceeds which corresponded to the proportion of their interest in tíre gas production for the period between breach and the clarifying memorandum and pay an identical share of reasonable operating and production expenses for the brief period between the memorandum and the journal entry. On remand, the district court awarded damages in an amount equal to 5/ie (31.25%) of the proceeds received by Mesa from all sales of irrigation gas at the wellheads on the unit plus the price per Mcf received at the processing plant tailgate multiplied by s/i6 of the wet wellhead volume minus the volume of irrigation gas sold at the wellhead. In this arrangement, Mesa is to retain all proceeds from extracted liquefiable hydrocarbons, and the Baptists and Hugoton Energy are liable for 5/i6 of “all drilling costs, operating costs and overhead costs incurred by [Mesa] in the drilling and operation of the . . . [u]nit,” including drilling costs for the infill well (the drilling of which constituted the breach).
Neither party has brought to the court’s attention any case in which the precise issue whether an unchallenged award of prejudgment interest survives reversal of a judgment awarding damages to become the law of the case on remand and a subsequent appeal. In the circumstances of this case, we find merit in Mesa’s position. The original judgment awarded damages based on a share of proceeds in proportion to mineral interests. Proceeds were reduced by reasonable operation and production expenses for a brief period. The aim of the district court judge seems to have been to relieve the mineral holders from costs for the drilling of the well which constituted the breach and otherwise to base the award of damages on a pragmatic division of income and outlay by participants in a joint enterprise which is not subject to an agreement which varies the proportions of their rewards and obligations from the obvious. The judgment on remand, in contrast, awarded damages based on the (reformed) terms of a contract which significantly varied the proportions by interjecting divisions by products and prices applied to volumes not actually sold at that rate.
Without question, the amount of the prejudgment interest awarded in the original decree was vacated along with the award of damages in this case. In this case, as Mesa argues, the nature as well as the amount of the award of damages were changed. In these circumstances, prejudgment interest which was appropriate to the original award may not be appropriate to the revised award. Instead of being the law of the case, an award of prejudgment interest in these circumstances should be considered anew on remand. This is not to say that circumstances cannot arise in which the reason why prejudgment interest was awarded is not affected by reversal of the original judgment. If that were the case, it might be that the reversal of a judgment and remand for retrial or recomputation of damages should not affect the decision that prejudgment interest was warranted (although it would require recomputation of the amount).
With regard to the contention that their claim was liquidated, the Baptists and Hugoton Energy state only that they sought “fair value for the gas taken and sold by Mesa.” It appears that their argument is that they sought and got “fair value.” That significantly stretches the meaning of liquidated. This court has defined liquidated as follows: “A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation.” In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 868, 703 P.2d 840 (1985). As we have seen, it is within the discretion of the district court judge to award prejudgment interest on an unliquidated claim. In the circumstances of this case, we cannot say that no reasonable person would agree with the trial court’s denial of the request for prejudgment interest.
Judgment of the district court is affirmed.
Abbott, J., not participating.
Marvin W. Meyer, Judge Retired, assigned. | [
-112,
104,
-39,
28,
12,
98,
58,
26,
93,
-93,
103,
87,
-23,
-34,
4,
125,
-57,
93,
-27,
104,
-41,
-77,
19,
96,
84,
51,
121,
65,
-80,
95,
-28,
119,
72,
96,
-54,
85,
-90,
72,
-23,
-44,
-50,
-124,
-23,
-27,
-39,
10,
52,
58,
16,
15,
53,
-92,
-13,
45,
24,
-61,
73,
46,
125,
45,
73,
-8,
58,
-123,
29,
21,
33,
-60,
-104,
35,
-4,
63,
-110,
-8,
8,
-24,
115,
38,
-62,
117,
39,
-101,
-119,
42,
103,
-109,
53,
-49,
92,
-72,
31,
-97,
-115,
-26,
-47,
88,
98,
0,
-73,
29,
92,
14,
4,
-2,
-26,
-123,
31,
-3,
16,
-50,
-110,
-95,
15,
-27,
-102,
7,
-53,
-61,
52,
116,
-51,
-90,
92,
-25,
50,
-105,
14,
-70
]
|
The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by the defendant, James Richmond, from his jury convictions and the sentences imposed for one count each of aggravated burglary, aggravated robbery, rape, and aggravated kidnapping. Under the Habitual Criminal Act, he was sentenced to a controlling term of 45 years to life imprisonment.
Because of the issues raised in this appeal, it is necessary to set out the facts in some detail. On February 14, 1990, J.J. lived with her husband and daughter in their house in rural Butler County. After her husband and daughter left for work and school, J.J. showered, laid out clothes for work, and was putting laundry away. As she was putting clothes in a chest of drawers, she was grabbed from behind around the neck. The attacker threw J.J. on the floor and hit her in the face with his fist a number of times. He broke her nose, and it bled profusely. He told her to stop screaming and, when she turned toward him, he told her not to look at him and began hitting her face again. She resisted when he tried first to pull up the hem of her robe and then to unzip it. He took the watch off her arm, tried to take off her rings, and then demanded that she take them off. Squatting behind J.J., he used both hands to jerk her head to the side. Then he said, “I can kill you anytime I want, do you understand?”
The attacker wanted to know where J.J.’s money was. When she said it was in her purse in the living room, he told her to get it. J.J. went into the living room, took the money from her purse, and gave it to the man. After getting all the money from her purse, he demanded that she show him where her husband’s money was. Back in the bedroom, she showed him where there was a bank. He knocked her to the floor with another blow to her nose and continued hitting her face and head. He reached for the zipper on her robe, she resisted, and he demanded to know where the rest of the money was. She told him there was no more money.
The attacker left J.J. standing near the headboard of the bed while he went through her purse in the living room. She was able to get a look at him. He returned to the bedroom and went through the top drawer of the chest of drawers and a jewelry box. She got another look at him then when he was only 5 to 6 feet away. He kept demanding money, and she told him there was no more in the house.
The attacker knocked J.J. to the floor again and repeatedly hit her in the face with his fists. He looked through the nightstands, and then he told J.J. to lie down. When she said that she could not breathe lying down, he responded that he did not care. He grabbed for the zipper to her robe, and she resisted. He thrust his face to within inches of hers and spoke profanely to her. He walked away and immediately returned to tear the zipper and robe apart.
The attacker ordered J.J. to stand, and then he broke the headboard off the bed by throwing J.J. against it. He told her to lie down on the bed, and she refused. He shoved her and told her to lie face down on the floor.
The attacker fondled J.J.’s buttocks, spread them, and tried unsuccessfully to penetrate her vagina with his partially erect penis. His efforts included pushing her left leg up, fondling her, removing his glove and inserting his finger into her vaginal area, turning her over, and pushing her legs up. He demanded several times that she “stick it in,” and, when he threatened to hit her, she tried to do as he demanded. According to J.J., “He kept pushing and pushing and he got it in a little ways, but not terribly far.” She later told hospital personnel that his penis was inserted into her vagina Vz to 1 inch.
When the attacker jumped up and zipped his pants in response to a noise in the living room, J.J. again got a look at him. He ordered her into the closet and shut the door. At times she could hear him in other parts of the house, and he returned to the bedroom three times. Through the slightly ajar closet door J.J. saw him first look in and then leave again. On the second return, he dumped out a jar of change which he found in a drawer and then left. The third time he opened the closet door and quizzed her about where the telephones were located. He told her to stay where she was, shut the door, and again left the bedroom.
After approximately 2 or 3 minutes, J.J. thought she heard a car, but she was not certain. She waited another minute or two before cautiously emerging from the closet. The kitchen telephone jack had been ripped from the wall. Richmond was subsequently arrested and convicted for the crimes against J.J.
Richmond first argues that the evidence was insufficient to support his conviction of aggravated kidnapping. This court often has stated:
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
K.S.A. 1994 Supp. 21-3420(b) defines kidnapping as “the taking or confining of any person, accomplished by force . . . [or] threat . . . , with the intent to hold such person ... to facilitate flight or the commission of any crime.” When bodily harm is inflicted upon the person kidnapped, aggravated kidnapping results. In the recent case of State v. Richmond, 250 Kan. 375, 377, 827 P.2d 743 (1992), the court called State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), “[t]he leading case on what is required to be proven to establish the facilitation of the commission of any crime provision of K.S.A. 21-3420(b).” In Buggs, the court held:
“Our kidnapping statute, K.S.A. 21-3420, requires no particular distance of removal, nor any particular time or place of confinement. Under that statute it is the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.” Syl. ¶ 7.
“The word ‘facilitate’ in K.S.A. 21-3420 means something more than just to make more convenient. A taking or confining, in order to be said to ‘facilitate’ a crime, must have some significant bearing on making the commission of the crime ‘easier.’ ” Syl. ¶ 9.
“If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the otiler crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” Syl. ¶ 10.
In Buggs, a woman and her son were confronted as they left work at the Dairy Queen. Defendants Buggs and Perry forced the victims to go back into the store, where they took the day s receipts from her purse. Then Perry held what was believed to be a gun on the son while Buggs raped the woman at knifepoint. The court rejected the argument that the movement and confinement of the victims was only incidental to the robbery. 219 Kan. at 209-17.
Here, Richmond argues that the taking and confinement of J.J. was incidental to the rape, burglary, and robbery. The State counters that Richmond moved and confined J.J. in order to make easier the commission of aggravated robbery and to facilitate his escape from the crime scene. We agree.
The moving of the robbery victim from room to room is not inherent in the crime of robbery. By enlisting the assistance of J.J. in finding and retrieving money, the robbery was made substantially easier for Richmond.
The State further argues that Richmond’s putting J.J. in the closet and shutting the door was confining her within the meaning of 21-3420. The State contends the confinement facilitated both the commission of the robbery and the flight. The rules quoted above govern the confinement to facilitate the commission of the robbery. As the State points out, Buggs involves the taking and/or confining the victim to facilitate the commission of crime, but it does not touch on facilitating flight. We find no reason, however, to distinguish between what constitutes facilitating flight and facilitating the commission of a crime under the Buggs rules.
Richmond’s confining J.J. to the closet made the robbery easier. It allowed him to search for money and valuables without giving her the opportunity to study his appearance and without risking her escaping or calling for help. It also enabled him to flee without being apprehended. From inside the closet J.J. could not see Richmond, his vehicle, or the direction in which he traveled. She was unable to call for help from inside the closet, and she delayed coming out because she could not be sure when Richmond left. As a result, when J.J. was able to contact the police, Richmond had made his escape. Furthermore, she was unable to give police a description of his vehicle or any idea where he might have gone.
Richmond argues that J.J. was not confined in the closet because she was neither tied nor locked in. He cites several Kansas kidnapping cases in which the victims were tied or locked in, but he cites no authority for the proposition that anything short of the victim’s being tied or locked in does not constitute kidnapping. He contends that J.J. “was not prevented, in any way, from leaving the closet.” Richmond’s physical brutalization of J.J. and his threatening statement that he could kill her at any time establish that she stayed where he put her in the closet out of well-founded fear. Stated another way, she would not have stayed in the closet of her own free will.
We find the confinement of J.J. in the closet facilitated Richmond’s flight from the scene of the burglary, robbery, and rape within the meaning of 21-3420. There is sufficient evidence from which a rational factfinder could have found Richmond guilty of aggravated kidnapping beyond a reasonable doubt.
Richmond next argues that it was clearly erroneous for the district court to fail to give a cautionary instruction about eyewitness identification. Richmond concedes that a cautionary instruction about eyewitness identification was not requested. K.S.A. 60-251(b) provides:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.”
“An instruction is clearly erroneous if the appellate court is firmly convinced that, if the error had not occurred, there is a real possibility that the jury would have returned a different verdict.” State v. Ludlow, 256 Kan. 139, Syl. ¶ 2, 883 P.2d 1144 (1994).
On appeal, Richmond contends that it is quite possible that a properly instructed jury would not have credited J.J.’s identification of him and therefore would have acquitted him. The instruction which he contends should have been given is PIK Crim. 3d 52.20. With regard to when this instruction should be given, this court has stated:
“In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising die jury as to die factors to be considered in weighing the credibility of the eyewitness identification testimony.” State v. Jones, 234 Kan. 1025, Syl. ¶ 1, 676 P.2d 1281 (1984).
There is no question that eyewitness identification was a critical part of the prosecution’s case against Richmond. This is not a case in which the act was admitted and some mitigating circumstance constituted the defense. This is a case where the defendant denies being involved and the victim is the only person who saw the assailant.
The reliability of J.J.’s identification is questioned by Richmond due to her early faltering attempts to identify her assailant. In February 1990, 7 days after the occurrence, J.J. viewed a lineup. Richmond was not in it. She identified one person from the lineup as looking “very similar” to her assailant. J.J. explained that she singled out the man in the lineup as a means of showing the police what her attacker looked like rather than as an identification of him as the attacker. More than a year later, in June 1991, J.J. was unable to select her assailant from a photo lineup which included a picture of Richmond. She explained that he looked different in the photo due to the length of his hair and facial hair. In December 1992, in the hallway outside the courtroom, she first identified Richmond as the man who had attacked her.
At trial, J.J. testified that she was nearsighted but that at the time of the crimes she could clearly see 25 to 30 feet without her glasses. She also testified that she clearly saw her assailant. She listed three instances when she was able to look at him before she was put in the closet: when he was in the living room taking things out of her purse; when he was standing at the chest of drawers to open J.J.’s jewelry box; and when he heard a noise and jumped up and zipped his pants. She testified that she had three additional opportunities to see him after she went into the closet: when he stopped at the bedroom door and looked in the room; when he put his face close to the closet door; and when he stood at the closet door and asked where the telephones were. When his face was close to the closet door, she. could only see part of his face. J.J. testified that she was able to look into his eyes when he was approaching the closet door. Although Richmond raises some questions concerning J.J.’s identification of him as her assailant, the reliability of her eyewitness identification cannot be seriously questioned.
In addition to J.J.’s identification of Richmond, the State presented other evidence tending to link him with the crimes. Detective Thomas Lee testified that he investigated a case involving P.D.K., which resulted in Richmond’s conviction. P.D.K. testified that when she returned to her rural Sedgwick County house at mid-morning on January 22,1990, Richmond jumped from behind a door, hit her' several times in the face, and knocked her down. He said, “Don’t look at me.” He put her face down on the bed and told her he would kill her if she moved. He removed her shoes, socks, and pants, then he dropped his own trousers, and he spread her buttocks. Unsuccessful in pushing his flaccid penis into her vagina, he ordered P.D.K., “You put it in.” After ejaculating, he tied her hands and feet with nylons and left the room. P.D.K. estimated that he had been out of the bedroom approximately 20 minutes before he returned, untied her feet, and raped her again. He took jewelry and money from P.D.K. and electronic equipment and appliances from the house. He tore the telephone out of the jack before leaving. There are a number of obvious circumstantial similarities between the attacks on J.J. and P.D.K., and they occurred within weeks of one another in rural areas east of Wichita.
P.D.K. and J.J. viewed the same lineup. P.D.K. and J.J. each picked out the same man as being similar to her attacker. The selected man was in jail on the day J.J. was attacked, February 14, 1990. P.D.K. punctuated her written selection with a question mark, and mentioned that his voice was different from her attacker’s voice. P.D.K. positively identified Richmond as her assailant. A fingerprint lifted in P.D.K.’s house matched Richmond’s fingerprint.
Negroid hairs which did not match Richmond’s sample were obtained in combings of P.D.K.’s pubic hair, just as Negroid hairs which did not match Richmond’s sample were obtained in combings of J.J.’s pubic hair. Both P.D.K. and J.J. are white and Richmond is black. A forensic microanalyst testified that the absence of a match in the samples did not eliminate the possibility that the hairs were Richmond’s and that there also was a possibility that a third person’s hairs could have been transferred from Richmond to each of the victims.
The final identification evidence was obtained from analysis of semen found on the vaginal and rectal swabs used during a physical examination of J.J. and on her panties and sanitary pad. Tests showed that the semen was produced by a non-secretor, that is, an individual whose ABO blood type is not determinable from other body fluids. Richmond is part of the 20 percent of the population which is non-secreting.
Doubtless, the jury’s assignment would have been more focused if PIK Crim. 3d 52.20 had been given. Even if the instruction had been given, the key question remains whether there is a real possibility that the jurors would have discredited J.J.’s identification of Richmond. Richmond’s contention that if so instructed, jurors would likely have acquitted him is based on his assertion that “the only evidence against [him] was the eyewitness identification testimony of Mrs. J.” There is significant additional evidence against him. In light of that evidence, we are firmly convinced that if the cautionary instruction had been given, there is no real possibility the jury would have acquitted Richmond. Thus, we conclude the failure to instruct on weighing eyewitness testimony is not clearly erroneous.
Richmond also argues that it was clearly erroneous for the district court in instructing on aggravated burglary not to specify the felony which Richmond intended to commit in making the unlawful entry. In State v. Linn, 251 Kan. 797, Syl. ¶ 2, 840 P.2d 1133 (1992), this court stated: “An instruction as to the offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry.” The Linn rule was reaffirmed in State v. Rush, 255 Kan. 672, 679, 877 P.2d 386 (1994). There, the instruction specified the crime of theft as the crime intended, but did not set out the statutory elements of theft. In the present case, the district court instructed the jury:
“In Count One, the defendant is charged with the crime of aggravated burglary. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant knowingly entered die residence of [J. and J.J.], Route 1, Augusta, Kansas;
2. That the defendant did so without authority;
3. That the defendant did so with the intent to commit a felony or theft therein;
4. That at the time there was a human being in the residence; and
5. That this act occurred on or about the 14th day of February, 1990, in Butler County, Kansas.”
The information in this case charges aggravated burglary as follows:
“[I]n Butler County, Kansas, on or about the 14th day of February, 1990, JAMES E. RICHMOND, did unlawfully, feloniously, willfully, knowingly and without authority, enter into and remain within the residence of [J. and J.J.], Route 1, Augusta, KS., occupied during the time of said entrance by [J.J.], and with die intent to commit the felony of rape, aggravated robbery and aggravated sodomy therein. K.S.A. 21-3716; K.S.A. 21-4501(c) (AGGRAVATED BURGLARY).”
There is no contention that Richmond objected to the failure to specify the felony or felonies which he intended to commit in entering J.J.’s house. Thus, according to Richmond, the clearly erroneous standard of review which is stated above applies.
In State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (1983), this court declined to reverse for the district court’s failure to identify the intended felony for the jury. There, the court said that the overwhelming evidence of guilt precluded any real possibility that an instruction properly identifying the intended felony would have affected the outcome. 234 Kan. at 399. In State v. Watson, 256 Kan. 396, 404, 885 P.2d 1226 (1994), theft was specified but no elements of that crime were given. The evidence tended to show that the person who tried to break into the back door of the dwelling first tried to determine that it was unoccupied by ringing the front door bell. Thus, crime other than theft was ruled out as the reason for breaking in. The court stated that it was “satisfied the failure to set forth the elements of theft in this case amounts to harmless error because we have a firm belief that beyond a rea sonable doubt the error had little, if any, likelihood of having changed the result of the trial.” 256 Kan. at 404.
Here, the State argues that the instruction is not clearly erroneous because the “statutory elements of the crime of aggravated burglary were given.” Apparently, the State intended to say that the elements of aggravated robbery were given. It also is true that the elements of rape were listed. Aggravated sodomy, the other offense identified in the information, was dismissed before trial. Thus, the jurors were advised of the elements of the offenses actually specified in the information and of the pertinent form of theft, as discussed at the instruction conference. PIK Crim. 3d 59.18 (1994 Supp.) adds the following sentence after the elements of aggravated burglary: “The elements of-are (set forth in Instruction No__) (as follows:-).” Thus, if this pattern instruction had been available at the time of Richmond’s trial, the only difference between absolute conformance with the pattern instruction and the instruction given would have been a reference to the elements instruction for aggravated robbery (and, perhaps, for rape).
It was error for the district court to fail to set out the statutory elements of the intended felony. As this court stated in Watson, however, that is not the end of the inquiry. This error can be harmless if the court is able “to declare a belief that it was harmless beyond a reasonable doubt.” 256 Kan. at 404. The defense was that Richmond did not commit the crime. If the jury believed that the man who was in J.J.’s house and who beat her, raped her, and stole money and goods from her house was Richmond, there seems to have been little, if any, chance that the jurors would have considered crimes other than aggravated robbery and rape, for which the elements had been supplied, as the reason for entering the house. We find the error to be harmless.
Richmond contends that it was an abuse of discretion for the district court to admit evidence of a prior crime for the purpose of proving identity. The scope of this court’s review is narrow: “Appellate review of a trial court’s decision regarding the admissibility of evidence of prior crimes pursuant to K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant, evidence.” State v. Blackmore, 249 Kan. 668, Syl. ¶ 2, 822 P.2d 49 (1991).
In State v. Nunn, 244 Kan. 207, 211, 768 P.2d 268 (1989), the court set out three requirements which must be satisfied when evidence is admitted under K.S.A. 60-455. The district court must find that (1) the evidence' is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice. Specifically with regard to identity as the material fact, this court has stated:
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. State v. Williams, 234 Kan. 233, 670 P.2d 1348 (1983); State v. Bly, 215 Kan. [168, 177, 523 P.2d 397 (1974)]. Similarity must be shown in order to establish relevancy. State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977). It is not sufficient simply to show that tire offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable, inference that the same person committed both offenses. State v. Bly, 215 Kan. at 178. In general see Comment, Evidence: Admissibility of Similar Offenses as Evidence of Identity in a Criminal Trial, 14 Washburn L.J. 367 (1975). However, the prior offenses need only be similar, not identical in nature. State v. Williams, 234 Kan. at 234.” State v. Breazeale, 238 Kan. 714, 721, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
In the present case, the State filed a motion well in advance of the trial setting, seeking to admit evidence of Richmond’s conviction of the attack and robbery of P.D.K. The district court conducted a hearing on the motion several months before trial began. The State called as witnesses P.D.K., J.J., and the investigating officer assigned to the P.D.K. case. The district court first concluded that the two crimes bore sufficient similarity and then that the similarities were great enough that the probative value of the evidence outweighed the tendency to prejudice the jury.
At trial, defense counsel renewed objections to admission of the evidence and requested reconsideration. The evidence was admitted, and the juiy was instructed as follows: “Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s identity.”
On appeal, Richmond contends that the district court abused its discretion in admitting the evidence of his conviction of the attack and robbery of P.D.K. because there was insufficient similarity between that offense and the attack and robbery of J.J. He concedes that there were similarities, but he asserts and emphasizes the following differences:
P.D.K. was bound
P.D.K.’s head was covered with a pillow case
The rapist
used Vaseline
entered an empty house
wore no gloves
used a knife
Even including the weak and questionable entries, the list of differences compiled by defense counsel are inconsequential in comparison with the similarities of the two attacks:
rural settings
adjoining counties
January 22 and February 14, 1990
white female victims in their forties
victims alone at home on weekday morning
victims initially punched in the face
victims ordered not to look at the attacker
victims laid face down, buttocks spread, attempted entry from behind; semi-erect penis
jewelry taken off victims
house searched for other jewelry, cash, and portable items
telephones disabled
victims gave similar physical descriptions of assailant
The circumstances surrounding these two incidents were so similar in their dominant aspects as to raise a reasonable inference that the offender in one was the offender in the other. The differences pointed out by Richmond demonstrate that the incidents were not identical but do little or nothing to make the parallels less commanding. Thus, it was not an abuse of discretion for the district court to have admitted evidence of the P.D.K. incident for the purpose of proving identity.
Richmond next complains of the following references to race which were made by the prosecutor during closing argument: “Think about having to divulge to your husband that you were raped by a black male. Think about having to divulge that information to law enforcement officers.” “Both of the females are white— Both of the victims white females, forties.” Neither remark drew a contemporaneous objection from defense counsel.
The second complained-of remark was included in a list of the similarities between the crimes involving P.D.K. and J.J. Thus, when placed in context, the statement that both victims were white carries no improper message or connotation. It is a straightforward, accurate, and proper statement. It warrants no further attention.
The context in which the first complained-of remark was made was a suggested explanation for the words used by J.J. with regard to the sexual assault varying somewhat, depending on the audience. Here is the surrounding text:
“[Defense counsel] made an issue out of whether there was penetration, whether there was not penetration. And he kept asking [J.J.], Well what did you tell Detective Garman? Well what did you tell Deputy Bartlett? What did you tell your husband?’
“Ladies and gentlemen, put yourself in [J.J.’s] shoes, or think about your wife calling you on the phone, she’s been attacked, beaten, robbed, and raped. Yes, [J.J.] said almost raped.
“Think about having to divulge to your husband that you were raped by a black male. Think about having to divulge that information to law enforcement officers. Strange men that have come to your home and you had to tell them in detail what’s happened to you, about the sexual assault. Think about the difficulty of that. Think about the trauma that you would be undergoing at that time.
“Clearly when you look at the medical records it will reflect that when she got to the hospital room, and she felt comfortable, and she felt safe, and she was with a female nurse, she further disclosed in more detail what had happened to her, and that she was penetrated. But she said it was slight, because it was slight. But she was penetrated.”
The prosecutor s point was that J.J. may have understated the circumstances when speaking to her husband and law enforcement officers, from concern for her husband’s feelings about his wife’s being sexually assaulted by another man and from culturally prescribed reticence when discussing intimate matters with strangers. Because the prosecutor named the race of the rapist in connection with the victim’s telling her husband, there is the fiirther suggestion that his wife’s being raped by a black man likely would provoke a more negative reaction from the husband than her being raped by a white man.
The State does not argue that there is any basis in the evidence for the attacker’s race being of any significance to J.J.’s husband. The State denies that there was any derogative aspect to the remark and contends simply to have been stating fact. The context, however, does not support the contention. The remark was improper. However, the question of whether the prosecutor’s comment amounts to misconduct is not before us. It is firmly established that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection was lodged. State v. Reed, 256 Kan. 547, 566, 886 P.2d 854 (1994). In an effort to get around the contemporaneous objection rule, Richmond suggests that the prosecutor’s racial remark was so patently improper that the district court had an affirmative duty to interrupt the closing argument and to admonish the jury, irrespective of defense counsel’s failure. We find under the facts of this case that the trial judge had no such duly.
Richmond’s final argument focuses on the district court’s failure to compute Richmond’s sentence under the sentencing guidelines. K.S.A. 1994 Supp. 21-4724(f) provides:
“In the case of any person to whom the provisions of this section shall apply, who committed a crime prior to July 1, 1993, but was sentenced after July 1, 1993, the sentencing court shall impose a sentence as provided pursuant to law as the law existed prior to July 1, 1993, and shall compute the appropriate sentence had the person been sentenced pursuant to the Kansas sentencing guidelines.”
Richmond falls into the category of persons who were sentenced after the effective date of the Kansas sentencing guidelines for crimes committed before the effective date. He was sentenced on April 15, 1994, for crimes which occurred on February 14, 1990.
At the time of sentencing, the district court judge stated to Richmond, “[B]ecause of the seriousness of the crimes, you are not eligible for any retroactive application of the sentencing guidelines.” Richmond concedes that the statement is correct. He argues, however, that “[t]he guidelines sentence must be determined before it can.be decided if the defendant is or is not eligible for retroactive application.”
We agree. Although computing Richmond’s sentence pursuant to the sentencing guidelines will not benefit him, the statute plainly states that the requirement for computation of a guidelines sentence applies in “the case of any person to whom the provisions of this section shall apply.” This court, in State v. Fierro, 257 Kan. 639, 895 P.2d 186 (1995), interpreted K.S.A. 1993 Supp. 21-4724(f) to require the computation whether or not the defendant benefitted. There, we stated:
“In those cases where a crime is committed prior to July 1; 1993, and' sentencing occurs after that date, although the trial court must impose a sentence according to the pre-July 1, 1993, law, K.S.A. 1993 Supp. 21-4724(f) also requires the trial judge to next compute what the sentence would be had the defendant been sentenced pursuant to the Kansas sentencing guidelines. Why is this provision in the statute? The issue before us is one of legislative intent. We believe the provision requiring calculation of the guidelines sentence by the trial court was added by the legislature to enable the trial court to resolve the guidelines issue while the facts were fresh and readily available to both the defendant and the prosecutor and to prevent subsequent appeals to the trial court should the defendant or the prosecutor disagree with the Department of Corrections’ calculations on conversion.” 257 Kan. at 649.
The judgment of the district court is affirmed in part, reversed in part, and remanded with directions to compute the appropriate sentence pursuant to the sentencing guidelines. | [
-16,
96,
-37,
-68,
26,
-14,
-85,
-72,
102,
-125,
-78,
-13,
-89,
-28,
0,
106,
-75,
127,
84,
97,
-44,
-77,
63,
-95,
-6,
-5,
-71,
-43,
-78,
78,
-20,
-44,
28,
48,
2,
85,
102,
10,
-29,
125,
12,
-115,
-22,
-20,
-9,
66,
32,
59,
108,
15,
-79,
-115,
-25,
47,
16,
80,
73,
105,
75,
-67,
-56,
-5,
-85,
-59,
-51,
52,
-125,
-74,
-98,
34,
-8,
23,
-100,
53,
0,
104,
114,
-122,
-126,
116,
71,
-117,
13,
98,
99,
-112,
-59,
69,
56,
-127,
-82,
-2,
-82,
-89,
-39,
105,
1,
36,
-89,
-97,
106,
-123,
44,
92,
-7,
92,
85,
100,
-107,
-33,
-108,
-77,
-117,
120,
26,
-6,
-61,
37,
96,
97,
-49,
32,
76,
85,
114,
-101,
-114,
-13
]
|
The opinion of the court was delivered by
Allegrucci, J.:
In the district court, the City of Overland Park (City) filed a petition for enforcement of its fire inspection ordinance against Bryan Niewald and Todd Jung, owners of Central Video Services, a business located in Overland Park. The petition alleged that Niewald and Jung refused to allow city fire inspectors access to their business premises for the purpose of conducting a routine periodic fire-prevention inspection. On cross-motions for summary judgment, the district court ruled in favor of the City and ordered issuance of a warrant to enforce the fire inspection ordinance. The Court of Appeals affirmed. City of Overland Park v. Niewald, 20 Kan. App. 2d 909, 893 P.2d 848 (1995). This court granted Niewald and Jung’s petition for review.
The following facts were stipulated to by the parties:
1. The City is a municipal corporation operating under the laws of the State of Kansas.
2. Bryan Niewald and Todd Jung are owners of Central Video Services, which has its principal place of business at 8991 West 75th Street, Overland Park, Kansas. That place of business has not been inspected by the City’s fire department.
3. The City’s fire department attempted to inspect that place of business.
4. Niewald and Jung have refused to allow City fire inspectors access to their place of business.
5. Regular periodic fire inspections are done of commercial businesses in Overland Park pursuant to the City’s fire prevention code and an administrative plan of the Overland Park Fire Department to inspect all business premises within the city once each calendar year. It provides for inspections at reasonable hours for the purpose of ascertaining and causing to be corrected, any conditions liable to cause fire, contribute to the spread of fire, interfere with firefighting operations, or cause any other fire safety violation. .
6. The City’s fire prevention code applies equally to new and existing buildings and conditions, except those which do not constitute á distinct hazard to fife or property.
7. The City does not have probable cause to suspect that any conditions liable to cause fire, contribute to the spread of fire, interfere with firefighting operations, or cause any other fire safety violation exist on the business premises of Niewald and Jung.
8. There is no written agreement, contract, other binding instrument, or show of harm between the City and Niewald and Jung by which to establish an equity relationship.
9. The City’s fire prevention ordinance incorporates by reference a savings clause.
Upon consideration of cross-motions for summary judgment, the district court stated the issues before it as follows:
1. Whether the district court has jurisdiction over the action.
2. Whether K.S.A. 1994 Supp. 22-2502 limits the district court’s power to issue a warrant for a search which lacks probable cause that some crime has been or is being committed.
3. Whether a search that lacks probable cause is constitutional under the federal and state Constitutions.
4. Whether City Ordinance BC-FP-1671, subsection F-107.1-3, is constitutional and enforceable against Niewald and Jung.
The district court concluded that it had jurisdiction, that it could issue a search warrant without probable cause (because K.S.A. 1994 Supp. 22-2502, which governs the issuance of search warrants in criminal cases, did not apply), that a search without probable cause was constitutional, and that the City ordinance is constitutional and enforceable against Niewald and Jung.
The Court of Appeals agreed that the district court had jurisdiction of the action. 20 Kan. App. 2d at 911. The Court of Appeals disagreed with the rationale of the district court but upheld the judgment of the district court on different grounds. 20 Kan. App. 2d at 915. Where the district court concluded that K.S.A. 1994 Supp. 22-2502 did not apply, the Court of Appeals concluded that
“prior to issuing an administrative search warrant, a magistrate or district judge is required to find the pertinent regulation meets the requirements established in Camara [v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967)], thus providing probable cause to issue the warrant.” 20 Kan. App. 2d at 915.
Thus, both courts found that the administrative search warrant was constitutional. 20 Kan. App. 2d at 915.
Niewald and Jung raise two issues:
1. Did the district court properly exercise jurisdiction over the City’s petition for enforcement of its fire inspection ordinance?
2. Is the warrant issued by the district court for the administrative search of Niewald and Jung’s business premises valid?
The Court of Appeals concluded that the issuance of an administrative search warrant is within the general jurisdiction of the district court. It noted that the municipal court is precluded by K.S.A. 12-4104 from issuing the warrant. K.S.A. 12-4104 provides that a municipal court has jurisdiction over cases involving violations of city ordinances, but that “[s]earch warrants shall not issue out of a municipal court.” K.S.A. 20-301 provides that district courts “shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” Because Niewald and Jung cited no authority that removed jurisdiction from the district court, the Court of Appeals concluded that the issuance of the administrative search warrant was within the district court’s jurisdiction. 20 Kan. App. 2d at 910-11. We agree.
We note that in their petition for review, Niewald and Jung clarify their contention that the district court was without jurisdiction to issue the administrative search warrant. Their position is that no Kansas court has authority to issue an administrative search warrant. Their rationale is that K.S.A. 1994 Supp. 22-2502 is a proviso to the general grant of jurisdiction in K.S.A. 20-301. They contend that the 22-2502 provision for the issuance of search warrants in criminal proceedings forecloses issuance of a search warrant in a civil proceeding. Thus, in reality, their argument is not one of a lack of jurisdiction to issue an administrative (i.e., civil) search warrant but, rather, a lack of authority.
In holding that the district court had authority to issue the warrant, the Court of Appeals relied on the provisions of K.S.A. 1994 Supp. 22-2502, stating in part:
“Here, the district court ruled that K.S.A. 1994 Supp. 22-2502 was inapplicable and did not limit the court’s jurisdiction to issue an administrative search warrant. We are convinced, however, based on the analysis found in Camara and See [v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967)], that the existence of an administrative policy or ordinance which specifies the purpose, frequency, scope, and manner of the inspection provides a constitutional substitute for probable cause that a violation has occurred. No statute exists in the Code of Civil Procedure which authorizes administrative search warrants. We conclude that, under the provisions of K.S.A. 1994 Supp. 22-2502, prior to issuing an administrative search warrant, a magistrate or district judge is required to find the pertinent regulation meets the requirements established in Camara, thus providing probable cause to issue the warrant.” 20 Kan. App. 2d at 914-15.
Niewald and Jung argued in their petition for review that the Court of Appeals overlooked the 22-2502 specification of probable cause of what. K.S.A. 1994 Supp. 22-2502(a) provides in part: “A search warrant shall be issued only upon the . . . statement . . . of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed.” (Emphasis added.) They have a point. K.S.A. 1994 Supp. 22-2502(a) requires a showing of probable cause to believe that a crime has been or is being committed. It does not authorize issuance of a warrant upon a showing of a policy designed to detect and correct code violations before harm may result from them.
Niewald and Jung also direct this court’s attention to the plain and unambiguous statutory language which authorizes issuance of a search warrant only upon a showing of probable cause to believe that a crime has been or is being committed. It is their position that this language disallows administrative search warrants. In other words, they contend that the legislature worded K.S.A. 1994 Supp. 22-2502(a) so as to occupy the entire field. Its existence, therefore, forecloses issuance of a search warrant in any circumstance other than one in which there is probable cause to believe that a crime has been or is being committed. We agree 22-2502(a) does not apply, but it does not follow that the district court is foreclosed from issuing an administrative search warrant.
The Court of Appeals was not willing to stray far from 22-2502 and indicated a finding consistent with the holding in Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967), and See v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967), would meet the probable cause requirement of 22-2502. With regard to Camara, the Court of Appeals stated:
"The Camara Court held that administrative searches of dwellings were significant intrusions upon the interests protected by the Fourth Amendment and that such searches conducted without warrant procedures lacked the traditional safeguards guaranteed by the Fourth Amendment. 387 U.S. at 534. However, such a finding was only the beginning of the analysis. Because the governmental interest in administrative searches is simply to prevent conditions which constitute hazards to public health and safety, the intrusiveness of such searches must be weighed in terms of the reasonable goal of enforcement of safety codes. 387 U.S. at 534-35. The Court went on to hold:
“ ‘[P]robable cause” to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based on the passage of time, the nature of the building ... , or the condition of the entire area; but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.’ 387 U.S. at 538.
“The Camara Court further noted that such programs have a long history of judicial and public acceptance and that no other technique would be practical to insure that all dangerous conditions are prevented. ‘Many such conditions — faulty wiring is an obvious example — are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself.’ 387 U.S. at 537.” 20 Kan. App. 2d at 911-12.
Of See, the Court of Appeals observed that it was similar to Camara, but “more on point.” 20 Kan. App. 2d at 912. In See, the Supreme Court concluded that an inspector’s entry into nonpublic parts of commercial premises could be compelled through a warrant procedure. 387 U.S. at 545. Our Court of Appeals added:
“In a later case, the Court noted that inspections of commercial property may be unreasonable if the inspections are so random, infrequent, or unpredictable that the owner has no real expectation that his or her property will periodically be inspected. Donovan v. Dewey, 452 U.S. 594, 599, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981).” 20 Kan. App. 2d at 913.
The City’s response to Niewald and Jung’s argument is that the existence of codifications of certain constitutional rights does not compel the conclusion that they govern all circumstances implicating the constitutional provisions. The City cites Davis v. Kansas Dept. of Revenue, 252 Kan. 224, 843 P.2d 260 (1992), and State v. Garcia & Bell, 210 Kan. 806, 504 P.2d 172 (1972), as authority for its position.
The Davis opinion begins: “This driver’s license suspension case concerns a sobriety checkpoint vehicle stop. The first impression single issue is whether a Kansas statute authorizing such a stop is a prerequisite to the stop’s validity.” 252 Kan. 224. The constitutionality of sobriety checkpoints under the Fourth Amendment already had been resolved in Michigan State Police Dept. v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990). In State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), this court determined that sobriety checkpoints could pass muster under the Kansas Constitution Bill of Rights § 15, which provides the same protection as the Fourth Amendment to the federal Constitution. See State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963). In Davis, the court concluded that “[s]obriety checkpoints are an exercise of generally authorized police powers,” 252 Kan. at 230, so that “[s]pecific legislative authorization is not a prerequisite to the validity of sobriety checkpoint stops,” 252 Kan. at 225.
The specific legislative authority at issue in Davis was K.S.A. 1991 Supp. 22-2402(1), which codified the stop and frisk rule of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). 252 Kan. at 228. This court’s rationale for concluding that the statute neither applied nor controlled is pertinent to the present case:
“The fact that evidence may be suppressed when the statute is applicable and is violated does not compel a determination that the statute applies in all stop situations. In the case at bar, the statute is not applicable. ‘Stop and frisk’ statutes were enacted to apply to situations where individual motorists are stopped based upon a particularized reasonable suspicion of criminal activity. Roadblock stops according to a plan embodying explicit, neutral hmitations on the conduct of individual officers are in a separate category. .■. .
“The stop and frisk statute provides objective guidance for the determination of the constitutionality of police conduct within the context of the investigatoiy stop and frisk. The history of the statute neither supports a claim that it governs all types of police contact with citizens nor- a claim that it functions as a general exclusionary rule. We reason that all specifics of police enforcement methods need not be legislated.
“KDR argues that State v. Garcia & Bell, 210 Kan. 806, 504 P.2d 172 (1972), a parking meter theft case, controls the case at bar. The police in Garcia ir Bell, after observing suspicious activity around some parking meters, stopped the suspects and ultimately searched a car which was at the scene. Garcia and Bell claimed that the evidence obtained was the result of an illegal search and seizure. We reasoned: ‘[O]ur own statute [K.S.A. 1971 Supp. 22-2501] was intended only to furnish guidelines to officers and courts as to one method of making a valid, warrantless search. We hold that it does not prohibit other warrantless searches which comport with the constitutional requirement of reasonableness.’ 210 Kan. at 811.
“Garcia & Bell teaches that legislation in one area concerning warrantless searches does not act to forbid all other types of search activity. Interpretation of K.S.A. 1991 Supp. 22-2402(1), as a general exclusionary rule, goes beyond the plain meaning of the statute and is contrary to the interpretive approach expressed in Garcia & Bell” 252 Kan. at 228-29.
In Garcia & Bell, the defendants sought to avoid the force of Kansas case law “by arguing that the legislature has now addressed itself to the subject of warrantless searches, and by enacting K.S.A. 1971 Supp. 22-2501 has occupied the field.” 210 Kan. at 810. This court stated: “We believe our own statute was intended only to furnish guidelines to officers and courts as to one method of making a valid, warrantless search. We hold that it does not prohibit other warrantless searches which comport with the constitutional requirement of reasonableness.” 210 Kan. at 811.
The City contends that the reasoning of the court in Davis and Garcia & Bell controls in the present case as well. We agree. It therefore follows that the presence of K.S.A. 1994 Supp. 22-2502(a) in the code of criminal procedure does not prevent administrative agencies from making other types of constitutionally permissible searches. The constitutionality of administrative searches within the framework of a warrant procedure has been resolved in Camara and See. Thus, we are led to conclude that the statute was intended to govern one type of warrant procedure: search warrants to be used in criminal investigations. It does not prohibit issuance of other warrants which comport with the constitutional requirement of reasonableness. As the Missouri Supreme Court stated in a similar challenge to administrative search warrants, it would be unreasonable to think that in enacting the criminal search warrant statute, the legislature intended to forever preclude the issuance of search warrants for purposes other than investigation or prosecution of criminal offenses. Frech v. City of Columbia, 693 S.W.2d 813, 815 (Mo. 1985).
In Siple v. City of Topeka, 235 Kan. 167, 679 P.2d 190 (1984), this court addressed the issue of inspections by governmental entities for the benefit of the public in preventing and abating health and safety hazards. The case was an action in tort for damage caused to Siple’s car when a limb fell on it. Siple alleged that the City of Topeka owed a duty to inspect and remove defective trees. 235 Kan. at 168. The issue was whether the city was immune under the Kansas Tort Claims Act for its employee’s negligent inspection of the tree, and the court concluded that it was immune. 235 Kan. at 174. The syllabus of the court’s opinion includes the following:
“Inspection laws are regulations designed to safeguard the public against fraud, injury and to promote the public health, safety and welfare. They provide for the examination or inspection of property by an authorized public official. The public official is to examine and determine whether the standards prescribed by the regulations are complied with.” Syl. ¶ 2.
“Subject to the paramount authority of the legislature, the enactment and enforcement of inspection laws are within the police power of the state. The power to enact inspection laws may be conferred upon municipal corporations by the state.” Syl. ¶ 3.
“Inspection as used in [the Kansas Tort Claims Act] means investigation, or examination for the purpose of determining whether any property other than property of a governmental entity complies with or violates any law or regulation of the governmental entity or constitutes a hazard to public health or safety.” Syl. ¶ 4.
“Statutes, ordinances and codes requiring inspections are enacted by governmental entities to secure for the public at large the benefits of such enactments. The legislature determined inspection activities are to be encouraged rather than discouraged by the imposition of civil tort liability.” Syl. ¶ 5.
In keeping with the rationale of Siple, inspections for the purpose of eliminating hazards to public health and safety are to be encouraged by the availability of a warrant procedure which would permit entry in the rare case where it is otherwise refused, upon a showing of probable cause as described in Camara and See.
We agree that the district court has jurisdiction and authority to issue an administrative search warrant. However, we disagree with the Court of Appeals that K.S.A. 1994 Supp. 22-2502 is applicable to tihe issuance of an administrative search warrant. We specifically disapprove of the language “Under the provisions of K.S.A. 1994 Supp. 22-2502,” in Syl. ¶ 6 of the Court of Appeals opinion and the corresponding language in the body of the opinion.
The decision of the Court of Appeals is affirmed as modified. The judgment of the district court is affirmed.
Larson, J., not participating.
Robert H. Miller, C.J. Retired, assigned. | [
-44,
106,
-4,
-19,
12,
-30,
56,
-8,
75,
-71,
55,
83,
-49,
-56,
-107,
107,
-102,
61,
-48,
121,
-60,
-78,
11,
66,
-42,
-1,
83,
-43,
-70,
126,
-12,
31,
88,
49,
-54,
-99,
-122,
-56,
15,
-36,
-114,
5,
11,
-63,
-35,
96,
52,
-5,
50,
67,
-47,
15,
-13,
56,
25,
-61,
105,
44,
-21,
-95,
-15,
-15,
-23,
-107,
125,
23,
1,
52,
-100,
-121,
72,
34,
-102,
49,
0,
-24,
115,
-90,
-42,
108,
5,
-117,
33,
110,
98,
34,
9,
-17,
-20,
-120,
14,
91,
-81,
-89,
-97,
25,
107,
40,
-106,
-99,
116,
22,
7,
104,
-25,
21,
95,
108,
-123,
-118,
-92,
-77,
-49,
112,
-126,
-109,
-18,
35,
35,
100,
-45,
-28,
94,
-58,
31,
95,
-34,
-108
]
|
The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from first-degree murder and conspiracy to commit first-degree murder convictions. The defendant, Bryan K. DePriest, contends that the trial court erred: (1) by omitting the element of intent from the first-degree murder instruction, (2) by failing to give a lesser included offense instruction, and (3) by failing to give an accomplice instruction. Finding no reversible error, we affirm.
Jesse Burton, Paul Moore, and the defendant were charged with first-degree murder and conspiracy to commit first-degree murder in connection with the slaying of Michael Hill. Hill’s body was found in the bathtub of his home in Topeka. He had been shot five times. Pursuant to a plea agreement, Jesse Burton pled guilty to one count of second-degree murder and testified on behalf of the State.
Burton testified that he was a friend of Hill’s and had sold cocaine for Hill. He testified that Hill agreed in early May to front him 15 ounces of cocaine on credit. At first, Hill gave Burton 9 ounces of cocaine which Burton then took to his friend and associate, defendant Bryan K. DePriest. The two of them cut the cocaine with a product known as Vita-Blend. They then sold the cocaine out of the defendant’s father's house.
Burton then contacted Hill to obtain the additional 6 ounces he had been promised. Hill wanted the proceeds from the sale of the first 9 ounces. When Burton relayed this information to the defendant, the defendant told Burton that he was going to kill Hill and keep the money. The defendant stated that if Burton did not cooperate, he would kill Burton, Burton’s girlfriend, and Burton’s uncle.
According to Burton, the defendant forced him to stay at the defendant’s father’s house until Paul Moore arrived. When Moore joined them, the defendant whispered something to Moore and then told Burton to go with Moore. The defendant also handed Moore a gun. Burton and Moore traveled to Topeka looking for Hill. They located Hill at his girlfriend’s home and eventually all three got together at Hill’s house.
Burton testified that when they arrivéd at the house, they talked for a few minutes, and then Hill went into the bathroom. Moore followed Hill into the bathroom and shot Hill. Burton became scared and ran outside but eventually got back into Moore’s car for the return trip to Kansas Ciiy.
Upon arriving in Kansas City, they first stopped at Moore’s house, where Moore hid the murder weapon under the couch and gave money that he had taken from Hill to his girlfriend. Moore also gave Burton approximately $400 of the money. They then went to the defendant’s house; the defendant asked Moore if he had taken care of the job. Moore said he had and described the killing to the defendant. Moore then gave Burton a ride home.
Burton testified that he was scared of Moore because Moore “don’t really have it all.” Burton stated that Moore is kind of crazy and does whatever the defendant tells him to do. He reported instances in which Moore stole cars and beat up people at the request of the defendant.
The deceased’s best friend, Maurice Brantley, also a friend of the defendant’s, testified that Hill and the defendant were friends but that the defendant did not like the way Hill had been acting. Brantley stated that the defendant thought Hill was very self-centered. According to Brantley, 3 or 4 days before the shooting, he, Burton, the defendant, and some other people were talking when Hill drove up and began talking to Burton. After Hill drove off, Burton told die defendant that Hill wanted Burton to make a trip to Topeka. Burton looked as though he did not want to go. Brandey stated that he told Burton that if he did not want to go, he should not go. Then, according to Brandey, the defendant went into the house and came back with a handgun, which he tried to give to Burton. However, Brandey talked Burton out of taking the gun.
When asked about Burton and Moore’s character, Brantley stated that Paul Moore is a “go-fer” for the defendant. According to Brantley, Moore will do anything that the defendant asks him to do. Burton, on the other hand, is not a very aggressive person and is a “follower.” Brantley stated that many times, Burton would talk about being unhappy over the way Hill treated him.
Several of the defendant’s friends testified on his behalf.. Dennis Moore, the defendant’s cousin, testified that Burton was talking about how Hill had not paid him enough for selling cocaine and how Burton wanted to kill Hill. According to Dennis Moore, Burton stated he was going to “get” Hill. Marvin Bland, another friend of the defendant, testified that he overheard Burton telling the defendant that he wanted to kill a certain person who owed him money. According to Bland, the defendant later told Bland that Burton had been talking about Hill. On another occasion, Bland overheard Burton talking to another person about Hill. During that conversation, Burton stated that he wanted to shoot Hill. According to Bland, Burton had stolen some drugs from Hill and was worried that Hill would come after him.
Gregory Hill, Jr., a cousin of the defendant’s, testified that he heard Burton state that he needed money to make payments on his motorcycle and that Burton mentioned that Hill owed him some money for selling drugs. Gregory Hill stated that he had a gun belonging to the defendant and that he gave Burton the gun to give back to the defendant.
The defendant testified on his own behalf. He stated that he got along well with Michael Hill but did not like the fact that Hill would not help Maurice Brantley when he needed money. The defendant denied telling Jesse Burton to kill Hill. He further denied attempting to hand Burton a gun, as Brantley had testified.
When asked about his relationship with Paul Moore and Jesse Burton, the defendant stated that he and Moore got along well but that at one point he made Moore stop dealing drugs for him because Moore would “short him” on deals. He stated that Burton was continually upset with Hill because Hill would not pay him enough. The defendant stated that Burton talked of killing Hill on five or six occasions but that he did not think Burton was serious.
The defendant testified that he had given Burton the money for the first 9 ounces of cocaine and told him to give it to Hill. For the remaining 6 ounces, he gave Burton money for the first 2 ounces but kept the proceeds from the sale of the remaining 4 ounces as his cut. He testified that this was a traditional cut and Hill did not expect to be paid the entire proceeds of the 15 ounces. The defendant expected that Burton would pay Hill the money; he did not know Hill had been shot until being informed later by Maurice Brantley. When he heard his name come up as a suspect, he went to the police to clear up any misunderstanding.
The defendant’s taped statement to the police was admitted into evidence. In this statement, he told police that he knew Jessie Burton and Paul Moore traveled to Topeka to kill Hill, although he denied playing any part. According to the defendant’s statement, Burton had been talking about killing Hill for a long time.
Paul Moore testified that on the night of the shooting, he had gone to a basketball court near his house, where he had become involved "in a fight with an acquaintance of his known as Rico. During the fight, he injured his hand and it became swollen. As a result, he stayed around his house and went to bed. He denied going to Topeka and denied killing Hill. Although he admitted selling cocaine for the defendant, he denied performing any other errands for the defendant.
At the close of the evidence, the defendant proposed that the court instruct the jury in accord with PIK Crim. 3d 56.01 on first-degree murder. The defendant did not request instructions on a lesser included offense or accomplice testimony. The district court gave the requested instructions, although it modified the instruction on first-degree murder.
(1) FIRST-DEGREE MURDER INSTRUCTION
The defendant contends that the trial court omitted an essential element of the charge of first-degree murder in its juiy instruction, thereby relieving the State from its burden of proving intent, an essential element of first-degree murder.
The defendant requested the following instruction on first-degree murder:
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Michael A. Hill;
2. That the killing was done with premeditation; and
3. That this act occurred on or about the 10 day of May, 1993, in Shawnee County, Kansas.” See PIK Crim. 3d 56.01.
The district court, however, gave the following instruction on first-degree murder, which recognized that the defendant was not the actual triggerman but an aider and abettor:
“To establish this charge, each of the following elements of the offense must be proved:
1. That a person for whose conduct the defendant is criminally responsible, willfully killed Michael A. Hill;
2. That such killing was done maliciously;
3. That such killing was done deliberately and with premeditation;
4. That this act occurred on or about the 10th May, 1993, in Shawnee County, Kansas.”
We begin our analysis with the fact that the defendant remained in Kansas City while, according to the theoiy of the State, Moore went to Topeka at the direction of the defendant and killed Hill. Faced with these facts, the trial judge modified the standard PIK Crim. 3d 56.01 instruction by stating in Paragraph 1 “that a person for whose conduct the defendant is criminally responsible, willfully killed Michael A. Hill.” It is clear that the word intent is not included in this first paragraph.
The defendant’s contention is twofold. First, he contends that the element of intent is left out of the first-degree murder instruction, thereby relieving the State of the burden of proof of an essential element of the offense. Second, the defendant contends that the State must prove beyond a reasonable doubt that the defendant intentionally killed Hill, not just that he aided Moore in the commission of a first-degree murder with intent to carry out the crime.
In regard to the defendant’s first contention, we need only to read the instruction given on first-degree murder, as well as the instructions as a whole, to conclude that the defendant’s contention lacks merit. In its instruction on murder, the court stated in part that the following elements of the offense must be proved: that such killing was done maliciously and that such killing was done deliberately and with premeditation. In the very next instruction, the court stated that murder in the first degree is premeditated murder which is defined in Instruction No. 9. Instruction No. 9 sets forth the definition of premeditated murder as the killing of a human being committed maliciously, willfully, deliberately, and with premeditation. Each term used is defined in further instructions: “Willfully means conduct that is purposeful and intentional and not accidental.” “Maliciously means willfully doing a wrongful act without just cause or excuse.” “Deliberately and with premeditation means to have thought over the matter beforehand.”
When considered as a whole, it cannot be seriously argued that because the court did not include the word intent in the first part of the instruction on first-degree murder, as outlined in PIK Crim. 3d 56.01, it relieved the State of the burden to prove intent. This is so because the additional language used in parts 2 and 3 of the instruction given by the court, with the further definition contained in Instruction No. 9, clearly required the State to prove intent.
The second contention of the defendant is that even though the defendant was in Kansas City at the time the murder was committed in Topeka, and the defendant could only be found guilty as an aider and abetter, the State is nevertheless required to prove beyond a reasonable doubt that the defendant had the intent to commit first-degree murder.
The defendant was necessarily convicted of aiding and abetting first-degree murder. A person may be convicted under the theory of aiding and abetting a crime if the person, either before or during its commission, aides or abets another to commit a crime with the intent to promote or assist in its commission. See K.S.A. 1994 Supp. 21-3205(1). The jury was so instructed in Instruction No. 4. Instruction No. 2, the one of which the defendant complains, instructed the jury that the defendant could be convicted of first-degree murder if the “person for whose conduct the defendant is criminally responsible” willfully, maliciously, deliberately, and with premeditation killed Hill. Read together, these instructions informed the jury that the defendant could be convicted if the person for whose acts he was criminally responsible maliciously, deliber ately, and with premeditation killed Hill and that the defendant aided or abetted the crime with intent to promote it.
The defendant contends that the Kansas Legislature has chosen to do away with aiding and abetting as an alternate theory of committing the crime; therefore, a defendant must be found guilty of all the elements of the underlying offense, citing State v. Pennington, 254 Kan. 757, 869 P.2d 624 (1993). However, Pennington does not stand for this proposition. Instead, Pennington merely holds that the State is not required to charge aiding and abetting in the charging document in order to pursue an aiding and abetting theory at trial. See 254 Kan. at 764.
In order to find the defendant guilty of aiding and abetting first-degree murder, the jury was required to find that a first-degree murder had been committed and that the defendant aided and abetted that murder with the intent to assist in its completion. Jury Instructions No. 2 and No. 4, read together, adequately instructed the jury on this issue. We conclude that the instructions given did not impermissibly reheve the State of its burden to prove each of the elements of the crime charged.
(2) LESSER INCLUDED OFFENSE INSTRUCTION
The defendant contends that the trial court was under a duty to instruct the jury on the crime of solicitation to commit first-degree murder because under State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), it is a lesser included offense of the offense of aiding and abetting first-degree murder. The defendant advances two arguments based upon the two-pronged test set forth in Fike. Under the first prong of Fike, he claims that solicitation is a lesser included offense of aiding and abetting first-degree murder because “all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged.” 243 Kan. at 368. Under the second prong of Fike, he claims that it is a lesser included offense because “the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime,” thereby coming under the definition in K.S.A. 21-3107(2)(d). 243 Kan. at 368.
We need not engage in a Fike analysis under the facts of this case because solicitation to commit first-degree murder is an independent criminal offense, separate and distinct from aiding and abetting first-degree murder. K.S.A. 1994 Supp. 21-3303(a) defines criminal solicitation as “commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.” Solicitation is a specific intent crime under Kansas law. A person is not guilty of solicitation unless he or she intentionally commits the actus reus of the offense, viz., he or she commands, encourages, or requests another person to commit a felony with the specific intent that the other commit the crime he or she solicited. The actus reus of the solicitation occurs under Kansas law if a person by words or actions invites, requests, commands, or encourages a second person to commit a crime. The crime is complete when the person communicates the solicitation to another with the requisite mens rea. No act in furtherance of the target crime needs to be performed by either person.
K.S.A. 1994 Supp. 21-3205(1), on the other hand, states that “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Thus, if a person solicits another to murder the victim, as happened in this case, and the person solicited murders the victim, the defendant is an accomplice in the commission of the murder and may be convicted of that offense. In these circumstances, the crime of solicitation is a separate offense, not a lesser included offense of aiding and abetting first-degree murder. See State v. Edwards, 250 Kan. 320, 330-331, 826 P.2d 1355 (1992) (holding that criminal solicitation is a separate and distinct offense from aiding and abetting the crime of making a false writing).
The evidence in this case was that the defendant solicited Moore to murder Hill. The evidence also established that Moore killed Hill. The question for resolution by the jury was whether the defendant aided and abetted in the commission of the murder. The jury found that he did. Once this was established, the defendant was guilty of murder.
The defendant was either guilty of murder as an aider and abettor or he was not guilty. The defendant was not charged with the separate offense of solicitation. The jury found that the evidence established beyond a reasonable doubt that the defendant encouraged or requested Moore to commit murder and, thereby, was guilty of the murder as an aider and abettor of the murder.
(3) ACCOMPLICE TESTIMONY INSTRUCTION
The defendant’s final argument is that the district court erred in failing to instruct the jury that it should consider with caution the testimony of an accomplice. The defendant states that because Jesse Burton was the only witness to the defendant’s involvement in the crime, the district court should have given the accomplice instruction. The defendant did not request such an instruction.
It is well settled in Kansas that
“[n]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Whitaker, 255 Kan. 118, 125, 872 P.2d 278 (1994).
The failure then to give an instruction on accomplice testimony when none is requested requires reversal only if “clear error” occurred. State v. Thomas, 252 Kan. 564, Syl. ¶ 7, 847 P.2d 1219 (1993). In determining whether prejudicial error has occurred, courts generally look to the extent and importance of the accomplice testimony, as well as any corroborating testimony. See State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981).
In this case, the testimony of Jesse Burton was vitally important because it was the only testimony linking the defendant to the crime. Burton’s testimony was partially corroborated in that the defendant admitted that he knew Paul Moore and Jesse.Burton were travelling to Topeka in order to kill Michael Hill and that he and Burton were involved in selling cocaine. There was also testimony that Burton was a “follower” and that Paul Moore, who did the bidding of the defendant, was a “go-fer” for the defendant. Moreover, the evidence suggested that Moore had, in the past, stolen cars and beaten up people at the request of the defendant.
As early as 1910, this court stated, in a case where the defendant claimed error for failure to give an accomplice instruction even though none had been requested, that “[w]ithout such an instruction a jury of ordinary intelligence would naturally receive with caution the testimony of a confessed accomplice.” State v. Miller, 83 Kan. 410, 412, 111 Pac. 437 (1910), revd on other grounds 84 Kan. 667, 114 Pac. 855 (1911). In State v. Parrish, 205 Kan. 178, 186, 468 P.2d 143 (1970), in discussing the trial court’s failure to give a requested instruction on accomplice testimony, we said that “[t]he necessity for many of these tautological instructions is losing force when a case is being considered by our present enlightened jurors.” In a discussion of this issue in Moore, we quoted with approval the following language from an early decision of Judge Learned Hand in United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933):
“ ‘The warning [accomplice instruction] is never an absolute necessity. It is usually desirable to give it; in close cases it may turn the scale; but it is at most merely a part of the general conduct of the trial, over which the judge’s powers are discretionary, like his control over cross-examination, or his comments on the evidence. If he thinks it unnecessary — at least when, as here, the guilt is plain— he may properly refuse to give it.’ ” 229 Kan. at 79.
Unlike the Becker and Parrish courts, we are not faced with the situation where the defendant requested an instruction. Because there is corroboration of the accomplice’s testimony, and because a jury of ordinary intelligence would naturally receive with caution the testimony of Burton, we conclude that there was no real possibility the jury would have reached a different result had the instruction been given.
Affirmed. | [
-48,
104,
-39,
-98,
61,
96,
42,
40,
-43,
-13,
103,
-41,
-19,
-25,
0,
59,
-80,
63,
84,
105,
112,
-77,
39,
-7,
-14,
-69,
-13,
-47,
-73,
74,
-2,
-3,
73,
0,
-114,
93,
102,
8,
101,
80,
-114,
-127,
-119,
-32,
-61,
6,
48,
42,
22,
15,
37,
-114,
-77,
122,
18,
-61,
73,
40,
-55,
63,
80,
-79,
74,
-115,
-51,
23,
-94,
-73,
-66,
7,
-8,
79,
-36,
57,
8,
-8,
-13,
-108,
2,
116,
109,
9,
44,
102,
34,
1,
81,
-23,
40,
-119,
47,
111,
-99,
39,
88,
73,
97,
4,
-105,
-35,
111,
60,
-118,
80,
-5,
61,
25,
-4,
-127,
-37,
-80,
-109,
79,
48,
-110,
-38,
-21,
5,
32,
113,
-49,
-30,
84,
101,
80,
-101,
12,
-106
]
|
The opinion of the court was delivered by
Abbott, J.:
This case involves judicial review of an agency action. In calculating William Ussery’s patient liability for Medicaid benefits, the Kansas Department of Social and Rehabilitation Services (SRS) included as part of his income a court-ordered support obligation to his former spouse. On Ussery’s petition for judicial review, the district court reversed the agency’s determination that the court-ordered support obligation was available income. The real issue before this court is whether maintenance paid to a former spouse is treated differently than voluntary support or court-ordered maintenance for a current spouse.
The facts are undisputed. On January 4, 1993, William Ussery’s wife, Ruby, filed a petition for divorce. On that day, the district court with jurisdiction over the divorce proceedings ordered William Ussery to pay temporary maintenance of $500 per month. On January 17,1993, Ussery was hospitalized and then was discharged to a nursing home on March 11, 1993, where he remains. Ussery’s daughter was appointed as his guardian and conservator. On April 14, 1993, a Journal Entry of Judgment and Decree of Divorce was entered granting the divorce and ordering Ussery to pay Ruby maintenance in the amount of $495 per month. All real and personal properly (except Ussery’s personal effects), including Ussery’s pensions from Getty and Texaco, were awarded to his former spouse, as were the couple’s debts. Only the maintenance is at issue here; the other distribution is not.
On April 16, 1993, Ussery filed an application for Medicaid benefits. On May 28, 1993, Ussery was notified that SRS had approved his Medicaid application and that his eligibility was effective as of April 1, 1993. Ussery’s only source of income is $1,060 per month from Social Security. SRS determined that Ussery’s share of his medical expenses, the “patient liability” or “patient obligation,” was $934.60 per month for April and May and thereafter $970.60 per month.
Ussery’s combined monthly patient liability of $970.60 and monthly maintenance obligation of $495 exceed his monthly income of $1,060. Ussery exhausted his administrative remedies in seeking to reduce his patient liability, but his efforts failed. He then filed a petition for judicial review in the district court. The district court held that SRS had erroneously interpreted the law in failing to deduct the court-ordered support obligation from Ussery’s “available income.” The court declined to address a constitutional argument (denial of equal protection) made by Usseiy. The court ordered SRS to recalculate Ussery’s patient obligation by deducting the court-ordered support.
SRS timely appealed to the Court of Appeals. In his appellate brief, Ussery asked the Court of Appeals to address the constitutional argument not addressed by the district court. Upon motion by SRS, the Court of Appeals issued an order striking Ussery’s appellate argument concerning the constitutional issue. Thereafter, the appeal was transferred to this court on this court’s own motion pursuant to K.S.A. 20-3018(c).
Our standard of judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., is statutorily defined. Among the grounds for relief are that the agency has erroneously interpreted or applied the law or that the agency action, or the statute or rule and regulation upon which the agency action is based, is unconstitutional on its face or as applied. K.S.A. 77-621(c)(1), (4).
Background on the federal Medicaid program was recently stated by the Second Circuit Court of Appeals in Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993):
“The Medicaid program was enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, 1396a-u (1988) (‘Medicaid Act’ or ‘the Act’), as a cooperative federal-state program designed to provide health care to needy individuals. Although a state is not required to participate in the Medicaid program, once it chooses to do so it must develop a plan that complies with the Medicaid statute and the Secretary’s regulations. [Citation omitted.]
“A state, in administering its Medicaid program, must set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. See 42 U.S.C. §1396a(a)(17). Those standards must take into account ‘only such income and resources as are, as determined in accordance with standards prescribed by file Secretary [of Health and Human Services], available to die applicant or recipient.’ 42 U.S.C. §1396a(a)(17)(B) (emphasis added).”
Kansas has elected to participate in the Medicaid program. K.S.A. 39-708c gives the Secretary of SRS the power and duty to determine general policies relating to all forms of social welfare and to adopt rules and regulations therefor. K.S.A. 39-708c(s) requires the Secretary of SRS to develop plans financed by federal funds and/or state funds for providing medical care for needy persons. Pursuant to that statute, the Secretary of SRS adopted regulations found at K.A.R. 30-6-34 et seq. SRS has also published the Kansas Public Assistance Manual (KPAM), detailing Medicaid eligibility and benefits.
Both parties agree that Ussery was determined to be eligible for Medicaid benefits. The issue here is not whether Ussery is eligible for benefits, but rather the extent of his patient liability. “Patient liability” for Medicaid care is defined as “the amount that the individual is required to pay towards the cost of care which the individual receives in an institutional arrangement. Patient liability is based on the amount of applicable income that exceeds the protected income level in the eligibility base period.” K.A.R. 30-6-53(a)(3) (1993 Supp.). Ussery contends that the court-ordered support obligation to his ex-wife should reduce his patient liability.
The trial court cited three statutes and regulations in its decision giving Ussery a reduction for the maintenance order. First, the court cited 42 U.S.C. §1396a(a)(17)(B) (1988) in framing the issue, the text of which is quoted here:
“(a) A State plan for medical assistance must—
(17) except as provided in subsections (1)(3), (m)(3), and (m)(4) of this section, include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . (B) provide for taking into account onltj such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and . . . as would not be disregarded . . . in determining his eligibility for such aid, assistance, or benefits . . . .” (Emphasis added.)
The trial court also cited 42 U.S.C. § 1396r-5 (1988) and K.A.R. 30-6-106(m)(2) and (3) (1993 Supp.). These provisions grant a monthly income allowance for the community spouse or family of an institutionalized spouse; the amount of that allowance shall not be considered in calculating the amount of patient liability.
The trial court’s reasoning consists primarily of quotes from Emerson v. Wynia, 754 F. Supp. 705 (D. Minn. 1991). That case was reversed by the Eighth Circuit Court of Appeals in Emerson v. Steffen, 959 F.2d 119 (8th Cir. 1992). The trial court also cited Cervantez v. Sullivan, 719 F. Supp. 899 (E.D. Cal. 1989), also reversed on appeal in Cervantez v. Sullivan, 963 F.2d 229 (9th Cir. 1992).
By adopting a medical assistance benefits plan pursuant to 42 U.S.C. § 1396a(a)(17)(B), the Kansas Medicaid plan must take “into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient,” in determining Medicaid eligibility or the extent of benefits. (Emphasis added.) The Kansas plan must be in conformity with federal guidelines on Medicaid. See Himes v. Shalala, 999 F.2d at 686.
Ussery argues for a reduction in his patient liability for the court-ordered maintenance. He does not point to, and we are unable to find, any federal statute or regulation granting an explicit exemption from available income for court-ordered maintenance payments. Usseiy’s argument, however, is that Kansas may adopt a less-restrictive definition of available income. Yet Ussery points to no Kansas statute or regulation granting the exemption he seeks.
In arguing that there is no deduction from available income for court-ordered support payments such as the maintenance Ussery was ordered to pay to his former wife, SRS cites the following cases for support: Himes, 999 F.2d 684 (limits on extent state’s definition of “available income” can differ from federal guidelines); Peura by and through Herman v. Mala, 977 F.2d 484 (9th Cir. 1992) (Alaska permitted a deduction for a portion, but not all, of child support payments; a portion of income used to pay court-ordered child support was “available”); Cervantez v. Sullivan, 963 F.2d 229 (SSI regulation which disallowed deduction from income for garnished child support payments in computing eligibility level was valid); Emerson v. Steffen, 959 F.2d 119 (“available income” for Medicaid eligibility need not be reduced by child support payments); Clark v. Commissioner, 209 Conn. 390, 551 A.2d 729 (1988) (“available income” for determining eligibility level included amount nursing home resident was ordered to pay his at-home spouse as separate maintenance where there was no divorce sought); Crider v. State, DHRS, 555 So. 2d 408 (Fla. Dist. App. 1989) (“available income” for Medicaid eligibility included support ordered paid to spouse under temporary court order); Clark v. Iowa Department of Human Services, 513 N.W.2d 710 (Iowa 1994) (“available income” for eligibility purposes determined as of its receipt, not after reduction by spousal support payments; acknowledged purpose of the separate maintenance was to reduce income below the eligibility limit); Estate of G.E. v. Div. of Med. Assist., 271 N.J. Super. 229, 638 A.2d 833 (1994) (inclusion as “available income” for Medicaid eligibility the portion of husband’s pension that a QDRO ordered directly paid to the wife was valid).
These cases primarily relate to Medicaid eligibility, rather than to determining the level of benefits or the amount of patient liability. That distinction is irrelevant for our purposes. A state could adopt one income methodology for determining eligibility and another for determining the extent of benefits (as long as both methodologies were within the overall limits of the federal scheme if the state wanted to receive full federal participation).
Because Usseiy concedes that the Secretary of Health and Human Services and the federal guidelines grant no exemption from available income for court-ordered maintenance payments, the next question becomes whether Kansas has adopted a less restric tive definition of available income which does grant a deduction for such payments. The cases from other jurisdictions cited above by SRS provide no insight into what the Kansas regulations permit.
K.A.R. 30-6-106(m)(2) (1993 Supp.) provides in pertinent part as follows:
“(m) When one spouse enters an institutional living arrangement and the other spouse remains in the community, and an application for medical assistance is made on behalf of the institutionalized spouse, the following provisions apply:
(2) A monthly income allowance for the community spouse shall be deducted from the income of the institutionalized spouse in determining the amount of patient liability for persons in institutional living arrangements . . . .The income allowance for the community spouse, when added to the income already available to that spouse, shall not exceed 150 percent of the official federal poverty income guideline for two persons plus the amount of any excess shelter allowance. . . . The maximum monthly income allowance which can be provided under this provision shall be $1,769.00. The $1,769.00 limitation shall be increased annually to reflect the percentage increase in the' consumer price index for all urban consumers. If a greater income allowance is provided under a court order of support or through the fair hearing process, that amount shall be used in place of the above limits.”
See also KPAM § 5754.2(1) concerning the community spouse income allowance.
The term “community spouse” is not defined. However, KPAM § 5754 indicates that spousal impoverishment provisions relate to a “married couple.” The term “spouse” must be given its common meaning. “Spouse” means one’s husband or wife. Black’s Law Dictionary 1402 (6th ed. 1990). “Husband” means a married man who has a lawful wife, and “wife” means “[a] woman united to a man by marriage; a woman who has a husband living and undivorced.” (Emphasis added.) Black’s Law Dictionary 741, 1598 (6th ed. 1990). It is undisputed that William and Ruby Ussery were divorced; therefore, Ruby is not William Ussery’s “community spouse.”
While K.A.R. 30-6-106(m)(2) (1993 Supp.) provides an income allowance for a community spouse, it does not provide an allowance for a former spouse. In its opinion, the district court here stated:
“The Administrative Law Judge [ALJ] rendered a decision dated August 11, 1993, that concluded that -K.A.R. 30-6-106(m)(2) defines available income such that income ordered to be paid for spouses is not considered available income, however income ordered by a Court to be paid to an ex-wife is still available income for the Appellant.” '
The ALJ’s decision is not included in the record on appeal, so this court cannot know the ALJ’s reasoning. The ALJ’s conclusion, however, is supported by the plain language of the regulation. An ex-wife is not a “community spouse”; therefore, K.A.R. 30-6-106(m)(2) (1993 Supp.) provides no reduction of available income for court-ordered maintenance paid to an ex-wife.
While the courts of this state need not always accept an administrative agency’s interpretation of its own regulations, it has long been recognized that in order to insure effectiveness and uniformity an agency’s interpretation of its regulations will be given great weight and, in some cases, controlling weight. Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988). It is a fundamental rule of statutory construction that when a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). This same rule of construction should apply to construing regulations, including the regulation at issue here.
The plain language of K.A.R. 30-6-106(m)(2) (1993 Supp.) grants an allowance only to a “community spouse.” It grants no similar allowance to an ex-spouse, nor does any other provision grant a similar allowance to an ex-spouse.
Ussery has not shown that SRS erroneously interpreted or applied the law in denying him an allowance for the court-ordered maintenance payments to be made to his ex-wife. The district court erred in so holding.
Ussery does urge this court to find that K.A.R. 30-6-106(m)(2) (1993 Supp.) is violative of equal protection principles if it is construed to provide an allowance for a current spouse but not for an ex-spouse. As stated earlier, the district court did not reach this issue, and the Court of Appeals issued an order striking the argu ment from appellate consideration. This court will not address the argument as it was not considered by the trial court.
The trial court erred in holding that Ussery was entitled to a reduction in his patient liability calculation based on the court-ordered maintenance to be paid to his ex-wife. The trial court may consider Ussery s equal protection argument since it was not briefed and argued at the appellate level through no fault of the parties.
Reversed and remanded. | [
-112,
76,
-35,
92,
10,
34,
11,
-120,
83,
-117,
39,
81,
-23,
-29,
21,
109,
-80,
57,
65,
107,
-41,
-93,
71,
64,
126,
-14,
-79,
-35,
-79,
93,
-28,
-44,
76,
56,
34,
-43,
102,
-61,
77,
16,
-114,
-122,
-119,
105,
-39,
-126,
32,
43,
-46,
31,
52,
-114,
7,
14,
48,
-1,
8,
12,
89,
97,
-48,
-48,
-54,
7,
111,
85,
-79,
4,
20,
71,
80,
42,
-116,
57,
0,
-23,
115,
-74,
-126,
52,
102,
-65,
5,
102,
98,
-79,
53,
-3,
-4,
-104,
-114,
-106,
31,
-122,
-97,
89,
35,
15,
-74,
60,
125,
28,
6,
-2,
-9,
21,
127,
-84,
83,
-118,
-106,
-95,
-52,
113,
28,
-118,
-17,
-125,
-96,
113,
-113,
-94,
92,
71,
123,
-109,
-82,
-110
]
|
The opinion of the court was delivered by
Davis, J.:
This petition for writ of habeas corpus under K.S.A. 60-1501 comes before us upon our grant of review of the Court of Appeals’ decision affirming the dismissal of the writ. We granted review because of a split between separate panels of the Court of Appeals on the issue of whether an inmate’s confinement in administrative segregation in a Department of Corrections facility involves a liberty interest under the state and federal constitutions. However, responses to questions by the court upon oral argument indicated that the petitioner is no longer present in this state and that the issues upon which review is sought are moot.
Thomas A. Shanks, an inmate at the El Dorado Correctional Facility, appealed the trial court’s denial of his K.S.A. 60-1501 habeas corpus petition. The Court of Appeals held that the Department of Corrections’ regulations involving administrative segregation do not create a liberty interest. We granted the petitioner’s request for review of the Court of Appeals’ decision for reasons set forth above. However, upon oral argument, and based upon further written memorandum submitted by the parties, we now conclude the issues raised by the petitioner are moot.
During oral argument, the court asked the parties whether the petitioner was still being held in administrative confinement in this state. The petitioner’s counsel had not conferred with his client since filing the petition for review before this court 5 months prior to oral argument. Counsel stated that he had recently become aware that his client had been transferred to the State of Texas, or as counsel stated, the petitioner had been paroled to the. State of Texas. This release occurred on May 25, 1995, the day the petition for review was filed before this court. This court was never updated as to the status of the petitioner by his counsel, and the petitioner’s counsel was without detailed information concerning the status of the petitioner at the time of oral argument.
The court also questioned counsel for the State. Again, it became apparent that counsel had not tracked the status of the petitioner since filing the brief before this court on July 13, 1995. Upon checking with the Department of Corrections, counsel advised us that the petitioner had been transferred from confinement in administrative segregation at the El Dorado Correctional Facility to conditional release in Texas on May 25, 1995. Counsel further advised this court that if the petitioner would be returned to the El Dorado Correctional Facility for service of the balance of his sentence, he would not be subject to the administrative segregation order under which he had been confined prior to his departure from this state. Any further administrative confinement in this state would be based upon a new order of segregation with the oppor tunity for a new hearing. Counsel conceded that under the circumstances, this case was moot.
This court gave each party 7 days to submit additional written memoranda on the question of mootness. Both parties submitted additional written memoranda on this issue. Counsel for the State concludes that “this case has been rendered moot by the conditional release of Appellant and his transfer to Texas.” The petitioner’s counsel disagrees. We have considered the additional authority submitted as well as the briefs and oral arguments. We are satisfied that any judgment of this court regarding the petitioner’s previous segregation placement would have no effect. It is troubling that while the petitioner was released on May 25, 1995, neither counsel bothered to check on his whereabouts.
Counsel for the petitioner relies on Henderson v. Schenk, 6 Kan. App. 2d 562, 631 P.2d 246 (1981), to support his contention that the question is not moot. In Henderson, the petitioner was released on bond and the Court of Appeals rightly concluded a person on bond is still in custody subject to conditions which restrain his or her liberty. Because the petitioner in Henderson was still subject to supervision within the state and revocation of the bond would have placed the petitioner back in confinement, the issue raised was not moot. In this case, the petitioner is no longer present in the state and would not be affected by the administrative segregation order if he returns to this state.
The petitioner’s counsel also relies upon City of Ottawa v. Lester, 16 Kan. App. 2d 244, 822 P.2d 72 (1991), as authority for this court to hear this case. However, in Lester, it was noted that should the petitioner prevail in his action and subsequently be found not guilty, he would be restored to the status of a first-time offender. Lester concluded that this change in and of itself could alter the potential penalties given a subsequent prosecution and his liability under a habitual traffic offender proceeding. Thus, the issues upon which the petition was based were not moot:
“ ‘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.’ Reeves v. Board of Johnson County Comm’rs, 226 Kan. 397, 405, 602 P.2d 93 (1979).” 16 Kan. App. 2d at 245.
This court has also said:
“[I]t 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 matter in issue before the court. [Citations omitted.]” Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1995).
The petitioner’s counsel also cites the case of Gibbons v. Brotherhood of Railway, Airline & Steamship Clerks, 227 Kan. 557, 608 P.2d 1320 (1980), for the proposition that even though the issues in a particular appeal may be moot if the issues aré capable of repetition and are of extreme public importance then the appeal may be considered and an opinion rendered. See Reece Shirley & Ron's, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 592 P.2d 433 (1979). However, we do not find these cases persuasive in our consideration of this petition for writ of habeas corpus under K.S.A. 60-1501. In Gibbons, the court concluded that it would not render an advisory opinion upon conflicting federal decisions (federal law applied to the original controversy) when no actual controversy existed. Moreover, the following comments by the court in Reece Shirley & Ron's, Inc., 225 Kan. at 471-72, demonstrate why that opinion provides little, if any, support for the petitioner:
“As to the issue of mootness, it should be noted that, at the time of the original hearing of this case on appeal, the parties advised the court that at some time during the prosecution of the appeal, the union had ceased picketing on the private property of the plaintiffs. However, the union was certified by the NLRB as the exclusive bargaining representative of the store’s grocery clerks. The situation is essentially the same at this time. The union is still certified as the exclusive bargaining representative of the store’s grocery clerks, although it now appears that the union no longer has active members in the store. Nevertheless, it is entirely possible that the union may resume its picketing activity at some date in the future. The situation stiU exists that no employment contract has been entered irito between the parties. Thus, this court is faced with an issue which is ‘capable of repetition, yet evading review.’ [Citations omitted.] Furthermore, the issue presented in this case is one of public importance. We consider it desirable to clarify our original opinion in this case in light of the decision of the United States Supreme Court in Sears, Roebuck & Co. We will, therefore, proceed to determine the basic issues presented at the rehearing.” (Emphasis added.)
Perhaps an earlier decision of the Court of Appeals concerning much the same question in this case best expresses the doctrine of mootness. Hannon v. Maynard, 3 Kan. App. 2d 522, 597 P.2d 1125 (1979), involved a question of mootness on the issue of administrative segregation where the inmate had been transferred from Kansas administrative segregation to Missouri pursuant to an interstate compact. The Court of Appeals held the inmate’s lack of physical presence in this state rendered his 5th, 8th, and 14th Amendment claims regarding administrative segregation moot:
“The general rule is that appellate courts do not decide moot questions or render advisory opinions. [Citation omitted.] The mootness doctrine is one of court policy. [Citation omitted.] This policy recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and property which are actually involved in the particular case properly brought before it, and to adjudicate those rights in such manner that the determination will be operative, final and conclusive. [Citation omitted.] The present situation is distinguishable from a class action where the representative inmate is transferred [citation omitted], or a case where an inmate is transferred to a second prison where the conditions of which he initially complained also exist. [Citation omitted.] We note that in view of Hannon’s commitment in another state, the ‘physical presence’ requirement of K.S.A. 60-1501 is lacking, leaving nothing upon which this court’s judgment might act. [Citation omitted.] Accordingly, we conclude that Hannoris argument concerning his confinement in A&T [administrative segregation] is moot.” 3 Kan. App. 2d at 523-24.
We emphasize that this is a petition for writ of habeas corpus under the provisions of K.S.A. 60-1501. The issues raised by the petitioner involve only his administrative confinement before his departure from this state.
Counsel for the petitioner relies on K.S.A. 1994 Supp. 22-3722, which provides that “[t]he period served on parole or conditional release shall be deemed service of the term of confinement.” Counsel suggests that since the petitioner was released on conditional release and paroled to the State of Texas, he is still in “confinement.” The question before us, however, involves only administrative segregation. Even if the petitioner were to be returned to this state, he would not be placed in administrative segregation under the order existing before his departure from this state. Under these circumstances, the confinement complained of by the petitioner no longer exists.
We acknowledge that resolution of the issues raised by the petitioner may be beneficial to the Department of Corrections and both counsel, who frequently work in this area of the law. However, while the issue is important, it is not of extreme public importance. The actual controversy generating this case has ceased to exist, and any judgment entered would have no effect on the parties and would be an idle act insofar as rights involved in the action concerned. Lester, 16 Kan. App. 2d at 245.
Appeal dismissed as moot. | [
112,
-22,
-43,
31,
42,
-64,
58,
-100,
81,
-85,
102,
83,
-91,
91,
-128,
123,
-71,
7,
82,
121,
-33,
-74,
-29,
-31,
118,
-13,
-40,
-43,
115,
95,
-26,
84,
72,
-80,
-118,
85,
70,
-56,
-1,
92,
-114,
5,
-72,
65,
-47,
-94,
48,
38,
26,
15,
-111,
-97,
-13,
44,
24,
-62,
-119,
44,
91,
-89,
84,
-103,
-113,
-113,
91,
6,
35,
0,
-98,
-27,
-48,
38,
-104,
-80,
0,
-20,
-15,
-106,
-122,
116,
107,
-71,
8,
54,
99,
1,
125,
-85,
-87,
-88,
46,
26,
-115,
-26,
-40,
88,
107,
69,
-108,
-35,
126,
84,
35,
124,
-10,
4,
85,
110,
-122,
-118,
-68,
-111,
79,
48,
-114,
-45,
-21,
33,
16,
117,
-115,
-94,
92,
-41,
59,
-101,
-82,
-48
]
|
The opinion of the court was delivered by
Six, J.:
This case presents first impression sentencing issues under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq. Specifically, what should be' the focus of the trial court in considering the imposition of an upward sentence departure for aggravated robbeiy and conspiracy to commit robbeiy upon a defendant also convicted of felony murder as an aider and abettor? See K.S.A. 1993 Supp. 21-4716(b)(2)(B). Should only the defendant’s individual conduct be considered for sentencing departure purposes or may the trial court look to aider and abettor liability? May a felony-murder conviction provide the basis for an upward sentence departure for conspiracy to commit robbery?
Damon E. Cox appeals his jury trial convictions of felony murder, K.S.A. 1993 Supp. 21-3401(b), aggravated robbery, K.S.A. 1993 Supp. 21-3427, and conspiracy to commit robbery, K.S.A. 1993 Supp. 21-3302 and K.S.A. 1993 Supp. 21-3426, arising from the carjacking and shooting death of Marcus Smith. Cox was sentenced to life for the felony murder. The trial court granted an upward departure on the other two offenses. Cox asserts sentencing error in (a) granting upward departures and (b) imposing an excessive total imprisonment term.
Cox raises numerous assignments of error besides the sentencing issues. He contends that the trial court: (1) erroneously allowed the State to introduce gang evidence and gave an erroneous gang evidence instruction; (2) erred in admitting a codefendant’s hearsay statement, contrary to the teaching of Bruton v. United States, 391 U.S. 123, 137, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); (3) failed to remove four venirepersons for cause; and (4) erred in admitting oral hearsay evidence that the vehicles used by the perpetrators were stolen.
Our jurisdiction is under K.S.A. 1993 Supp. 22-3601(b)(1) (off-grid crime conviction).
We find no reversible error on issues (1) through (4) and affirm the convictions. On the sentencing issues, we hold that K.S.A. 1993 Supp. 21-4716(b)(2)(B) requires that only the defendant’s individual conduct during the commission of the current offense be reviewed when considering the imposition of a departure sentence. Consequently, we vacate the sentence for aggravated robbery. We also hold that a killing resulting in á conviction of felony murder may not be used, under the facts of this case, as the basis for an upward sentence departure for a conviction of conspiracy to com mit robbery. We also vacate the sentence of conspiracy to commit robbery. We affirm the felony-murder sentence and remand for resentencing on the other convictions.
FACTS
On July 30, 1993, five teenagers, including Cox, caravanned to Atchison from Kansas City, Missouri, in three separate vehicles. Michael Hayes, who went by the nickname “Kilo,” drove alone. The other teenagers were paired in two vehicles.
While in Atchison, the group, which included Stefan Wheeler, Jared Owens, Carrie Vincent, Kilo, and Cox, stopped 24-year-old Marcus Smith, who was driving a Honda with distinctive oversized tires. One member of the group knew Smith and talked with him briefly. Kilo then told some friends that they were going to “gank” Smith. The group’s first encounter with Smith ended peacefully.
Later that afternoon, the group saw Smith again and surrounded his car. Kilo retrieved a gun from the glove compartment of the car Cox was driving and put the gun to Smith’s head, ordering Smith out of his car. Smith then laid down on his stomach. Kilo told Wheeler in an “evil-sounding” voice to drive Smith’s car. Wheeler jumped into Smith’s car and started driving away. Vincent also drove away. Gunshots rang out. Marcus Smith was left dead, lying in the middle of the street, with two gunshot wounds to his back and one to the back of his head.
Wheeler, the only defendant who testified, understood the purpose of the trip to Atchison was to look for girls. Wheeler had known Kilo approximately 2 months, having seen him on occasions when Wheeler visited Cox, his cousin. Wheeler and Owens had lived in the same housing complex 8 years earlier. Wheeler first met Vincent the day before the killing. Wheeler, Owens, and Cox had been driving around all night July 29. Cox wanted to see Kilo. Late that night, they drove to the place where Kilo was staying. Vincent joined them there about 4 to 5 a.m. on July 30. Later in the morning of the 30th, the group drove together to Atchison. Wheeler testified he had obtained the two-door Blazer the night before for $10. Wheeler testified he did not realize that the Blazer was stolen until the group stopped in Leavenworth on the way to Atchison.
A pathologist testified that the wound to Smith’s head was fatal. The “tattooing” from gunpowder around the wound showed the gun was fired within inches of the victim’s head.
At the time the group’s three vehicles were recovered, the police checked the vehicles’ registration and ownership with the Department of Motor Vehicles. The check revealed that the vehicles had been stolen from Kansas City, Missouri, late on July 29, 1993, or early in the morning of July 30, 1993.
Detective Wilson wrote up a voluntary statement from Vincent, attempting to use Vincent’s words. Vincent confirmed the contents and signed the statement. Vincent gave another voluntary statement to Wilson, admitting that she saw Kilo take the gun out of the glove compartment of the Jeep and use it to shoot Smith twice in the back. She admitted driving away from the scene in the black Blazer, hearing more shots as she headed toward Leavenworth. Detective Wilson also read Vincent’s second statement in redacted form at the trial.
Cox, following his arrest, gave a voluntary statement to Detective Wilson. At trial, Wilson read this statement to the jury in redacted form.
Wilson testified that during his interview with Cox, Cox told him that he belonged to rap music groups named Dark Side Posse, Scandalous City Mafia, and Down By Law.
Four of the defendants — Cox, Wheeler, Owens, and Vincent— were tried jointly as aiders and abettors on the murder charge. Cox and Vincent, each 17 at the time of the offense, were certified to be tried as adults. Vincent was convicted of the same offenses as Cox. See State v. Vincent, 258 Kan. 694, 908 P.2d 619 (1995). Wheeler was convicted of aggravated robbery and acquitted on the other charges. Owens was acquitted on all charges. Kilo was tried separately and convicted. See State v. Hayes, 258 Kan. 629, 908 P.2d 597 (1995).
DISCUSSION
Gang Evidence
Cox argues that his constitutional right to a fair trial has been denied by the court’s improperly admitting gang expert testimony and erroneously instructing the jury on gang evidence. Cox asserts our review should be de novo. We do not agree. Abuse of discretion is the standard we apply when reviewing the admission of gang expert testimony. See K.S.A. 60-456(b); State v. Tran, 252 Kan. 494, Syl. ¶ 1, 847 P.2d 680 (1993). Our standard of review for jury instructions is stated in State v. Butler, 257 Kan. 1043, Syl. ¶ 10, 897 P.2d 1007 (1995).
Hardie T. Smith of the Kansas City, Missouri Police Department worked as the Coordinator of the Street Gang Task Force. Officer Smith testified that: (1) a gang is defined as a group of three or more individuals who exist for the sole purpose of committing a criminal act or acts of intimidation and continue their association; (2) gang members may range from 8 to 42 years in age and can be of either sex; (3) both sexes can belong to the same gang, and any race or mixtures of races can be in the same gang; (4) gangs sometimes have names; (5) gangs may call themselves crews or a mob; (6) gang members sometimes say they are part of a rap group, singing group, or community organization; and (7) gangs have been known to be involved in carjacking, which is the taking of a vehicle by robbery.
Cox’s counsel timely objected, arguing that Smith’s testimony was irrelevant and prejudicial.
We have affirmed the admission of gang evidence (a) to show motive for an otherwise inexplicable act, State v. Toney, 253 Kan. 651, 653-55, 862 P.2d 350 (1993); Tran, 252 Kan. at 505; or (b) as part of the res gestae, State v. Walker, 252 Kan. 117, 137,843 P.2d 203 (1992); State v. Hooks, 251 Kan. 755, 765-66, 840 P.2d 483 (1992).
Gang evidence is only admissible where there is sufficient proof that membership or . activity is related to the crime charged. Tran, 252 Kan. 494, Syl. ¶ 6. The expert must be qualified to impart to the jury knowledge within the scope of the expert’s special skill and experience that is otherwise unavailable to the jury. 252 Kan. at 502. The reason for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Admission of expert testimony is governed by K.S.A. 60-456(b).
The State presented evidence that the group originated in Kansas City and traveled together in three separate vehicles to Atchison on the morning of the killing. The vehicles were similar in color and type (two black late-model Blazers and a dark green late-model Jeep Cherokee). Once in Atchison, the vehicles traveled caravan-style to several locations. The group followed Smith, the victim, and made at least two contacts with him before the carjacking. Two people in the group, Kilo and Vincent, stated to a third person that they were going to “gank Marcus.” The group followed one of Smith’s basketball friends around the park in the three vehicles shortly before the shooting. The defendants were seen standing outside their vehicles talking together at the park shortly before the incident. A witness testified seeing the driver of the Jeep hit his hand on the side of the vehicle as a signal for Vincent to get back into the vehicle so they could pursue the victim. The three vehicles surrounded Smith’s car at the carjacking site. The group fled together with the stolen vehicle after the shooting, stopping together on the highway between Atchison and Leavenworth. Cox stated: “The purpose of stealing the gray car was to strip it once we were in Kansas City. The gun used came from Kansas City where we have a lot of guns that I do not want to talk about.”
The State sought to bring in gang evidence to show that the carjacking was gang activity engaged in by the defendants. According to the State, Officer Smith’s statement that gang members may sometimes say they belong to rap groups, coupled with Cox’s statement that he belonged to three rap groups, provided the inference, under Officer Smith’s definition, that Cox was a gang member. Cox’s status as a rap group member, or even a gang member, seems more relevant to explaining the actions of the defendants in Atchison if additional evidence had linked those defendants to the same rap group or gang. A review of the pretrial proceedings is helpful at this point.
At the pretrial motions hearing, the trial court took up the State’s motion to introduce gang evidence. The State argued that the evidence was important because the State’s theory was aiding and abetting. Gang evidence was also important to the State in proving conspiracy (the State wanted the juiy to hear that the codefendants belonged to the same group). The State told the court that there was evidence that one of the defendants (presumably Cox) had admitted gang membership. The court was informed that evidence regarding reactions to certain colors of clothing evidencing gang membership would be presented. The State also argued that an expert would be needed to define the term “gank” and “that iype of terminology.” Cox’s counsel stated that Cox had only told the officer that he was a member of certain rap groups and had not admitted gang membership. The court took the matter under advisement.
Gang evidence came up again at another pretrial motions hearing. Beyond restating its previous arguments, the State told the court that the gang evidence was needed to refute a claim of compulsion advanced by Wheeler. The court said that the term “gank” had nothing to do with gang membership. Cox’s counsel objected to the State bringing in an expert to define “gank” because the jury would then view the association between the codefendants as gang membership even if there was no gang evidence. Cox argued that before allowing an expert to testify, the State needed to present some evidence indicating gang membership by the codefendants and that evidence was relevant to the offenses charged. The court gave the State 5 days to come up with evidence showing gang membership.
At the final pretrial motions hearing, Cox’s counsel objected to the proffer filed by the State, alleging that the proffer did not show gang evidence and relevancy. According to tire proffer, the evidence at trial would show that (1) Cox admitted membership in a gang called the Scandalous City Mafia; (2) a hat bearing such an insignia was found in one of the cars; (3) Kilo had become upset when he saw others wearing red and had waved a blue handkerchief at them. The proffer also asserted that a police expert needed to testify to explain the importance of color of clothing, to acknowledge gang membership of the defendants, and to define gang terminology. The court found that based on the State’s proffer, the evidence was relevant.
The State’s problem on appeal arises because the evidence the State introduced at trial did not follow the proffer. Neither evi dence of characteristic gang dress nor evidence of any adverse reactions by any of the defendants to others wearing colors was introduced. The State did not present any evidence of gang membership by any member of the group.
After Officer Smith testified, Cox’s redacted statement that Cox was a member of three rap groups, including the Scandalous City Mafia, was also read to the jury. Cox’s rap group membership, assuming rap group membership is to be equated with gang membership, was die only evidence linking any of the group to a gang.
While there was evidence suggesting that the defendants and Kilo were acting in concert, there was no evidence suggesting either gang involvement or gang motivation. The fact that there was evidence suggesting a conspiracy between young people to commit a crime does not make expert testimony regarding gangs relevant. The logic used to find relevancy is flawed. The State through the testimony of its gang expert advanced the premise that a person who belongs to a rap group is a member of a gang: Cox belongs to a rap group; therefore, Cox, the other three defendants, and Kilo are members of a gang.
This case is distinguishable from Toney, 253 Kan. at 653 (murder committed in retaliation for a prior gang incident), and Tran, 252 Kan. at 505 (motive for murder was to get even with a rival gang). No evidence was introduced here to suggest that the motive for the killing was gang related.
The trial court gave the following instruction concerning gang evidence to the jury:
“Evidence has been admitted in this case that each of the defendants are members of a gang. This evidence maybe considered solely for the purpose of proving their motive, interest, or bias for their actions, but only for that limited purpose.”
We conclude that the trial court abused its discretion by admitting the gang expert testimony and instructing on gang membership.
We then must decide whether the error is harmless. The harmless error standard of review requires us to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result at trial. State v. Davis, 256 Kan. 1, 17, 883 P.2d 735 (1994); see K.S.A. 60-261.
The State presented independent evidence, including Cox’s statement, establishing the elements of the crimes of which Cox was convicted. Officer Smith’s testimony concerning gang activity was brief. The State neither emphasized the gang aspect of his testimony in opening or closing statements nor mentioned Cox’s association with rap groups. We find support for our harmless error analysis in the jury’s verdicts. Owens was acquitted of all charges. Wheeler was convicted only on the aggravated robbery charge. The jury appeared to have based its verdicts on the evidence of the four defendants’ conduct concerning the caijacking, not on gang membership per se. We conclude that the admission of Officer Smith’s gang testimony and the use of the gang instruction were harmless errors.
Cox argues that the admission of gang testimony also violated K.S.A. 60-455. We have already found that argument deficient in two prior cases: State v. Bailey, 251 Kan. 156, 166, 834 P.2d 342 (1992), and Hooks, 251 Kan. at 765-66. Cox fails to point to any reason why we should decide differently in this case.
The Term “Gank”
The State called Officer Smith to provide the definition for the jury of the street term “gank.” Before Officer Smith’s testimony, the State asked one of its witnesses, Toi Allen, a resident of Atchison, if she had heard the term “gank.” She said, “To me, it means if someone’s going to take some money from you or like that.” Judy Jolly, another witness for the State, testified that Lonetta Williams asked her what the term “gank” meant because Vincent had told Williams they were going to “gank” Marcus. Jolly told Williams that she did not know what the term meant. Williams, who heard Kilo and Vincent each separately say they were going to “gank Marcus,” also testified that she had never heard the term “gank” before.
What did the term mean to the persons who used the term, Vincent and Kilo? Officer Smith’s knowledge of Kansas City street terms provided the juiy with information they otherwise would not be expected to have. The defendants were from Kansas City. The term “gank” was apparently not a term commonly understood in Atchison. Vincent’s counsel, during cross-examination, read to the jury a different definition of “gank” from a book written by another gang authority. (During Officer Smith’s cross-examination, Vincent’s counsel, without objection, asked several questions concerning Smith’s knowledge of A Parent’s Guide to Gangs.) Cox’s counsel did not object to the cross-examination. The meaning of “gank” was at issue. Officer Smith described the word “gank” as a street term that initially meant for one drug dealer to take drugs from another dealer. The term later came to mean to take property from someone. Sometimes, according to Officer Smith, gang terms become street terms or vice versa.
Expert testimony can explain a defendant’s actions which might otherwise appear difficult to comprehend. Tran, 252 Kan. at 502. Officer Smith’s testimony helped the juiy understand the street term “gank.” The trial court did not abuse its discretion in admitting that testimony.
Codefendant Vincent’s Redacted Statement
At trial, Detective Wilson read to the juiy the redacted statements of Carrie Vincent, Cox, and Wheeler. The State had previously-informed the court and counsel that Wilson would be reading these statements. Cox’s counsel, joined by other defense counsel, objected before trial to the use of the redacted statements of any codefendants, asserting that Cox’s right to confront the witnesses was violated. The trial court denied the motion. The defendants also joined in a pretrial motion to sever the trial, on the same grounds, which the trial court also denied. When Detective Wilson read Vincent’s statement to the jury, Cox made no objection. Vincent’s counsel, joined by all other defense counsel, objected, contending that the statement was not voluntary. The involuntary objection, however, does not raise the issue Cox now presents, i.e., a violation of Bruton v. United States, 391 U.S. 123, 137, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). After Detective Wilson read Vincent’s statement and before Cox’s statement was to be read, Owens’ counsel objected to the statements of any codefendants being read to the jury. Other counsel joined in the objection, which the trial court overruled. The jury was not told that the statements were redacted.
Cox did join in Owens’ objection to the State’s use of any codefendants’ statements, but not until after Vincent’s first redacted statement had already been read to the jury.
Cox asserts error in the admission of Vincent’s first redacted statement. To preserve an unfavorable ruling on an evidentiary question before trial as an issue on appeal, a party must make a timely objection when the evidence is introduced at trial. State v. Peckham, 255 Kan. 310, Syl. ¶ 7, 875 P.2d 257 (1994); see K.S.A. 60-404.
Cox has not preserved this issue for appeal. However, we reason that even if the issue of error in admitting Vincent’s first redacted statement were properly before us, we would find the issue lacked merit.
Cox does not claim that Vincent’s statement was distorted by the redaction. In Vincent’s first redacted statement, all references to the codefendants, other than Kilo, have been removed. Cox complains that the “we’s” and “they’s” sprinkled throughout the statement explicitly implicate him, violating Bruton. (We note one “they” and one “them.”) Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 102 S. Ct. 1702 (1987) authorized redaction. A Richardson requirement, that the trial court give a proper limiting instruction, was waived by Cox because he joined in a motion in limine requesting that no limiting instruction be given.
Other courts have sanctioned the admission of statements containing plural pronouns such as “we.” See, e.g., United States v. Briscoe, 896 F.2d 1476, 1500 (7th Cir.) (“[w]e were given tickets in Lagos [Nigeria]”), cert. denied 498 U.S. 863 (1990); United States v. Lewis, 786 F.2d 1278, 1286 n.10 (5th Cir. 1986) (“we” and “us”). We agree with the holdings of Briscoe and Lewis. See United States v. Bennett, 848 F.2d 1134, 1142 (11th Cir. 1988) (substituting “they” and “them” for defendants’ names still Bruton violation, but constitutes harmless error). Nothing in Vincent’s first redacted statement implicates Cox. His name is never mentioned. We have set out the redacted statements of Vincent and Cox.
Vincent’s Statement:
“During the past week we talked about Atchison and they wanted to go there. Kilo had been to Atchison before. Kilo called me this morning at Blue Ridge Apartment where I was staying with Melody last name unknown. Kilo wanted to go to Atchison and wanted me to go show them how to get to Atchison. I rode in the dark green Blazer. Kilo just wanted to go to Atchison. Nothing had been said about Marcus Smith. We drove around Atchison and saw Marcus Smith driving his silver Honda around the park. We were interested in the wheels on his car and the big tires. We later saw Marcus at King’s. We drove in there and I spoke to Marcus who I know. I told him Kilo wanted to buy his wheels and tires. He told us to meet him at the EZ Shop. Our vehicles followed Marcus out of King’s, east on Division to 8th, south on 8th to Laramie and went on Laramie where Marcus stopped. The dark green Blazer stopped next to Marcus. Marcus was against the north curb and we were next to him, both of us headed west. Kilo was driving a black Blazer. He drove in front of Marcus and parked against the north curb, also headed west. Kilo got out of the black Blazer he was in and walked in between Marcus, who was in his car, and I sat in my car. Kilo asked Marcus how much he wanted for the wheels and tires. Marcus said he didn’t really want to sell them. I was leaning out the window talking to Marcus when Kilo took a gun from the glove box of my car. The gun was a dark colored revolver handgun. Kilo went to Marcus’ window. At that point I got out of my car and went to the black Blazer parked behind Marcus. I didn’t want to be around if anything happened so I got into the driver’s seat of the black Blazer and drove off. I drove west on Laramie and as I drove by Marcus’ car, Marcus was getting out of his car. Kilo had the gun in his hand. I drove to 10th Street and then heard more than two shots. I drove out of town toward Leavenworth. I ran from the police when they tried to stop us in Leavenworth.”
Cox’s Statement:
“This morning my friend Kilo wanted to go to Atchison. I don’t know Kilo’s real name. That is what I know him by. I have known Kilo for six months. Kilo wanted to go somewhere. He wanted to go to Denver but didn’t have enough money. We were going to look for girls there. Kilo knew Atchison and had been there before. I had never been there before. We drove to Atchison. I drove the green Cherokee Jeep that I later wrecked in Leavenworth. I had got this Jeep last night from a guy name George who wanted to sell it to me. Kilo drove a black Blazer. We got to Atchison and rode around. We ended up seeing a gray saw [sic]. We saw this gray car in King’s. I pulled in there. The guy in the gray car stopped on the street where I stopped beside him. Kilo showed up headed the opposite way on the same street. Kilo got out of his Blazer and went to the gray car and talked to the guy. I don’t know what they said. Kilo then reached into my Jeep and got the black colored .357 revolver that I knew was inside. He took the gun and went back to the guy in the gray car. I then drove off and heard maybe four shots. We headed to Leavenworth and were arrested. The propose of stealing the gray car was to strip it once we were in Kansas City. The gun used came from Kansas City where we have a lot of guns that I do not want to talk about.”
Under the guidelines set forth in State v. Hutchison, 228 Kan. 279, 282, 615 P.2d 138 (1980), and State v. Purdy, 228 Kan. 264, 270-71, 615 P.2d 131 (1980), admission of Vincent’s redacted statement was not error.
Removal for Cause
Cox complains of a violation of his right of fundamental fairness under the Fourteenth Amendment because the trial court failed to remove four venirepersons for cause, thus giving the State more peremptory challenges than he had. Cox cites no authority for this proposition. The State points out and Cox concedes that only one of the four venirepersons was stricken with any of Cox’s peremptory challenges. The other three had been stricken with challenges from the other defendants. All parties used all of their peremptory challenges.
Cox accepts that under current law, the trial court’s failure to remove the venirepersons in question for cause does not violate his Sixth Amendment rights. Cox also agrees that the right to peremptory challenges is not a constitutional right. The fundamentally “unfair” argument was advanced in State v. Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994), although in the context of the Sixth Amendment right to an impartial jury. We did not find Crawford’s argument persuasive, observing that he failed to show prejudice. 255 Kan. at 53.
Cox has not shown .prejudice or fundamental unfairness. He does not identify any jurors he would have challenged peremptorily. Wé hold that Cox’s constitutional rights under die Fourteenth Amendment were not violated.
The Stolen Vehicles
Cox joined in a pretrial motion in limine to bar the State from presenting any evidence that the vehicles were stolen. The trial court denied the motion. The State argued that the evidence was admissible as part of the res gestae and under K.S.A. 60-455, as evidence of plan or motive. At trial, counsel for the defendants joined in objections when the State offered the oral testimony of Chief Pickman of the Atchison Police Department. Chief Pickman testified that the police ran routine vehicle registration and ownership checks on the vehicles the afternoon of the killing. The defendants’ objections were that the allegation of vehicle theft was highly prejudicial, based on uncharged conduct, and that the testimony was hearsay not falling within any exceptions, including “business” exceptions. The trial court overruled the objections and allowed the testimony, saying that “it’s in the official course of business.” Chief Pickman then testified that the checks revealed the Jeep and two black Blazers had been stolen late on the night of July 29, 1993, or early on July 30, 1993. The trial court did require the State to provide some foundation testimony, and Chief Pickman testified about the usual procedure involved in checking the ownership and registration of a vehicle.
Cox argues that the business records exception to the hearsay rule, K.S.A. 60-460(m), does not apply because Pickman’s testimony concerning the vehicle checks was oral and, in addition, the testimony lacked proper foundation. We agree.
K.S.A. 60-460(m) provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.”
The State contends that the business records exception applied and argues that Cox failed to preserve this issue for appeal because Cox failed at trial to make any objection to the fact that the testimony was oral, not written, and lacking foundation.
At trial, Cox did make a timely objection on the grounds of hearsay and lack of an applicable exception to the hearsay rule. Since Pickman’s testimony was oral, it did not fall within the exception provided at K.S.A. 60-460(m), which expressly applies only to “writings.” No other exception appears to apply. Although the trial court viewed Pickman’s testimony as “in the official course of business,” the testimony cannot fit within K.S.A. 60-460(m). Cox’s stated grounds for the objection, that no hearsay exception applies, is sufficient to preserve die issue for appeal.
In Letcher v. Derricott, 191 Kan. 596, 603-04, 383 P.2d 533 (1963), we upheld the exclusion of a page of a filed police report of an investigation of an accident, which consisted of statements made by independent witnesses to the accident. Judge Spencer A. Gard, in commenting on Letcher, observed:
“Such statements, even though embodied in the report, could hardly have been admissible under any rule of hearsay exception heretofore operating in Kansas. If the new evidence rules had been in operation it is possible that the statements might come in if they met the conditions of the hearsay exception in Kan. Sess. Laws 1963, ch. 303, §60-460(d)(3), or, if the defendants were in court and subject to cross-examination with respect to their out-of-court statements; but not merely because they were a part of someone’s official report.” Gard, Survey of Kansas Law: Evidence, 12 Kan. L. Rev. 239 n.4 (1963).
None of the conditions described by Judge Gard apply to the instant case. We view the admission of Pickman’s testimony as harmless error.
“ ‘Errors that do not affirmatively cause prejudice to the substantial rights of a complaining parly do not require reversal when substantial justice has been done.’ ” State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994) (quoting State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 [1991], cert. denied 505 U.S. 1207 [1992]); see K.S.A. 60-261.
Although the trial court erroneously admitted evidence that the vehicles were stolen, there was independent evidence of that fact. Wheeler’s attorney asked and Wheeler answered during his direct testimony which occurred after Chief Pickman’s testimony:
“Q: Now, were you aware — did you drive any of the vehicles coming to Atchison?
"A: Yes.
"Q: Were you aware that the car you were driving or anybody else’s car was stolen?
“A: I had no idea that the cars were stolen until I reached Leavenworth, some gas station somewhere in Leavenworth.”
During the State’s cross-examination, Wheeler testified that he gave someone whose name he did not know $10 for the two-door black Blazer in Kansas City on the night before the trip to Atchison. Wheeler realized this vehicle was stolen when he noticed different tags on the front and back while they were at a gas station in Leavenworth before arriving in Atchison. Also, the steering wheel had a towel wrapped around it, which to Wheeler was a sign of theft.
The State argues that the hearsay evidence the vehicles were stolen was admissible under K.S.A. 60-455 as “preparation” or “plan” evidence. Cox contends that K.S.A. 60-455 also bars admission of Chief Pickman’s testimony. The trial court did not admit Pickman’s testimony under 60-455; consequently, we need not conduct a 60-455 analysis. Although not asserted by the State, we acknowledge that State v. Davis, 256 Kan. 1, 22, 883 P.2d 735 (1994), approved as res gestae evidence that a vehicle was stolen. The problem in applying Davis to this case lies with the development of the theft evidence at Cox’s trial. In Davis, Prendergast, the owner of the stolen vehicle, testified at trial, consequently, hearsay was not at issue. 256 Kan. at 18, 21. We note the record reflects in the instant case that the State endorsed witness names identified as owners of the stolen vehicles. No owner testified. A proper hearsay objection is not cured by applying the res gestae label.
Sentencing
The trial court sentenced Cox to fife imprisonment on the felony-murder conviction, upward departures of 102 months for the aggravated robbery, and 26 months for the conspiracy to commit robbery, all terms to be served consecutively. At the K.S.A. 1993 Supp. 21-4718 hearing on the State’s motion for upward departures, the State asserted the aggravating factor of “an excessively brutal killing.”
Cox argues that under K.S.A. 1993 Supp. 21-4716(b)(2)(B), only his conduct should be considered for sentencing purposes. He reasons that aider and abettor liability should not be used for a sentencing departure. Cox also contends that the excessive brutality— the killing — did not occur during the commission of the offenses for which departure was granted: aggravated robbery and conspiracy to commit robbery.
The trial court explained the upward departures by stating in part:
“But from the overall scene and the overall picture, you were all in it together because of the way you drove up here, because of the way you changed cars and had conversations beforehand, because of the way that in the testimony of one of the witnesses you kind of had Marcus Smith hemmed in there to where he couldn’t do anything before anything occurred to him.
“And then when you left there, that you all remained together in the vehicles and even stopped on the way down to Leavenworth and that which indicates all of it that you were really all in it together.
“So the Court finds, really that you’re just as equally as guilty as any of the rest of them.
“I think that this kind of a killing was as brutal a killing really as you could ever have on any kind of shooting.
“It was worse than really kind of what we call a drive-by shooting because of the fact that the evidence was this, that they got the guy out and had him go down to the ground and then start puffing the trigger.
“Why, as the prosecution said in their opening statement, it wasn’t just a brutal killing, it was an execution.
“And that’s exactly what it was in this particular case.”
As required by K.S.A. 1993 Supp. 21-4716(a), the trial court stated on the record what it considered the substantial and compelling reason for departure to be, the brutal nature of the killing.
K.S.A. 1993 Supp. 21-4721 provides for appellate review of a departure sentence:
“(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:
“(1) Are supported by the evidence in the record; and
“(2) constitute, substantial and compelling reasons for departure.
“(f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.”
Our review of a departure sentence is a question of law. Departure factors are to be reviewed to determine whether there is substantial evidence supporting the trial court’s findings or whether the findings are clearly erroneous. State v. Gideon, 257 Kan. 591, Syl. ¶ 20, 894 P.2d 850 (1995).
Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. State v. Ratley, 253 Kan. 394, Syl. ¶ 2, 855 P.2d 943 (1993).
We described the legislative history of the KSGA in State v. Grady, 258 Kan. 72, 89, 900 P.2d 227 (1995).
The Senate Judiciary Committee observed, in part, when considering the KSGA:
“[T]he Committee recognized that the guidelines are designed to regulate judicial discretion, not to eliminate it. The guidelines contemplate that a typical offense and offender will be sentenced within the guidelines. For an individual somewhat more or less culpable than a typical offender, the court may choose a sentence at the top or bottom of the applicable guideline. However, when the individual is substantially more or less culpable than the typical offender, the court may consider a departure.” Minutes of the Senate Committee on Judiciary, p. 2, January 24, 1992.
The court’s comments at the time of sentencing govern as to the reasons for departure. Gideon, 257 Kan. 591, Syl. ¶ 21.
K.S.A. 1993 Supp. 21-4716(b) provides in relevant part:
“(2) Subject to the provisions of subsection (b)(3), the following nonexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist:
“(B) The defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense.”
“(3) If a factual aspect of a crime is a statutory element of the crime or is used to sub-classify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.
“(c) In determining aggravating or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
(3) written briefs and oral arguments of either the state or counsel for the defendant; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and rehable.” (Emphasis added.)
Accessories or aiders and abettors maybe charged with and convicted of a crime as principals. K.S.A. 1993 Supp. 21-3205; State v. Kliewer, 210 Kan. 820, 823, 504 P.2d 580 (1972).
The comments at Cox’s sentencing show that the trial judge found that the codefendants’ actions showed they “were all in it together.” The trial judge reasoned they were all equally responsible for what happened because of how the robbery occurred: the planning beforehand, the surrounding of the victim’s vehicle, and the group escape with the victim’s vehicle, although only one person pulled the trigger.
We have not yet addressed the issue of whether 21-3205 aider and abettor liability alone can be used to impute a substantial and compelling aggravating factor for upward departure in sentencing under K.S.A. 1993 Supp. 21-4716(b)(2)(B). Courts in Washington and Minnesota have considered the question, although in cases factually distinguishable from this case. See State v. Hawkins, 53 Wash. App. 598, 606, 769 P.2d 856, rev. denied 113 Wash. 2d 1004 (1989) (“[The defendant] claims that there was no solid evidence indicating his involvement as anything more than an accomplice to murder. However, we will not split hairs’ in an effort to determine the greater or lesser roles of these three participants.”). The record in Hawkins contained conflicting evidence of Hawkins’ direct involvement in the murder. However, the court observed that the victim
“had been severely beaten before he died in the fire. He suffered a depressed skull fracture that was consistent with a blow from a hammer or pipe. He also had seven broken backside ribs, a type of injury that requires considerably more force than the use of a fist and is commonly seen in automobile accidents.” 53 Wash. App. at 600.
Hawkins was implicated when his former wife reported to the sheriff’s office that Hawkins told her
“that the group’s plan to burglarize Couch’s home went awry when Combs had a violent scuffle with the victim. [Hawkins] said he put the victim out of his misery by slitting his throat and created the appearance of an accident by wrapping Mr. Couch’s legs in a blanket and setting fire to the trailer.” 53 Wash. App. at 601.
Hawkins’ exact role could not be determined. Thus, grounds existed for imposing the departure sentence based on the defendant’s own conduct.
The Washington Supreme Court also has observed:
“Regardless of defendant’s intent [not to harm the victim] and despite the fact that defendant was not present during the robbery and murder, the circumstances surrounding defendant’s role in planning the crime, as explained by the sentencing court in its findings of fact and conclusions of law, justify imposing an exceptional sentence.” State v. Handley, 115 Wash. 2d 275, 285-86, 796 P.2d 1266 (1990).
Handley is not a felony-murder case. Handley pled guilty to second-degree possession of stolen property, first-degree criminal assistance, and first-degree conspiracy to commit robbery.
The Minnesota Supreme Court has linked an aider and abettor’s conviction of second-degree murder and conspiracy to commit first-degree murder to sentencing:
“There is evidence that defendant gratuitously maced the victim, an action we have previously recognized as indicating cruelty. [Citation omitted]. Further, even if defendant did not inflict the brutal injuries and psychological terror which proceeded and were part of the murder, as a participant she was legally responsible for these actions under Minn. Stat. § 609.05 (1984). [Citation omitted.]” State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985).
The victim in Campbell had less than normal mental capabilities. Her throat had been cut from ear to ear, and her chest and back had been stabbed 17 times. The evidence was conflicting as to Campbell’s specific involvement beyond macing the victim, conduct the Minnesota court viewed as showing cruelty.
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Under the funda mental rule of statutory construction, the intent of the legislature governs when intent can be determined from the statute. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). When a statute is plain and unambiguous, we must give effect to the intention of the legislature rather than decide what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). “The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.” Donlay, 253 Kan. 132, Syl. ¶ 3. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Tyler, 251 Kan. 616, Syl. ¶ 15, 840 P.2d 413 (1992).
The language in K.S.A. 1993 Supp. 21-4716(b)(2)(B) focuses the sentencing court’s attention on the defendant’s own individual conduct during the commission of the current offense when considering the imposition of a departure sentence.
A defendant’s degree of involvement in criminal acts by others will vary. A defendant may be the driver of the getaway car in a bank robbery, waiting outside the bank, never seeing any of the “excessively brutal” acts the partner commits inside the bank during the robbery. In contrast, the defendant may brutally beat a robbery victim until the victim is near death, but the partner may fire the bullet that kills the victim. As in Hawkins, 53 Wash. App. at 606, it may be difficult to decide who among a group of defendants committed the excessive brutality during a crime involving the entire group.
Here, we concentrate for sentencing on Cox’s individual involvement. Cox knew of the plan to rob the victim. Cox knew the victim’s car was to be taken back to Kansas City and stripped. He parked his Jeep next to the victim’s car. He knew the murder weapon was in the Jeep. He watched Hayes take the weapon and use it on the victim. Cox left the scene with the others at die time of the shooting. Cox had control of the murder weapon before Kilo took it. Cox parked his vehicle so that the weapon was accessible to Kilo. Cox’s actions placed and kept the victim in a position of vulnerability to the gunman. Cox could have interceded, but did not. Cox rendered no assistance to the victim after the shooting. However, the question is whether Cox’s conduct manifested excessive brutality to the victim in a manner not normally present in the offense. Cox had no physical, or apparently verbal, contact with the victim. He did not shoot the victim. Cox will be punished by the appropriate sentence for each of his three convictions.
We hold that Cox’s conduct did not amount to “excessive brutality” to the victim. We reject the idea that aider and abettor liability alone is to be used as a basis for a sentence departure. Under K.S.A. 1993 Supp. 21-4716(b)(2)(B), only the defendant’s individual conduct during the commission of the current offense is to be considered for a sentence departure. The triggerman, Michael Hayes (Kilo), was convicted on all three charges. Upward departures were imposed on the basis of excessive brutality. The application of aider and abettor liability to sentencing was not at issue in Hayes’ case. See State v. Hayes, 258 Kan. 629, 908 P.2d 597 (1995).
We read K.S.A. 1993 Supp. 21-4716(b)(2)(B) to require conduct of a defendant “in a manner not normally present in that offense,” i.e., conduct going beyond what is minimally needed to satisfy the elements of the offense. Cox participated in the activities leading up to the killing, but the level of his participation did not go beyond what was needed to establish the elements for his convictions.
We also consider the relationship of the conspiracy charge and the upward departure on that count an additional rationale for our remand on sentencing. Is the nature of the killing properly an aggravating factor for the crime of conspiracy to commit robbery? We think not. “Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime; and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.” State v. Hill, 252 Kan. 637, Syl. ¶ 1, 847 P.2d 1267 (1993). “All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. . . . The crime of conspiracy as proscribed in K.S.A. 21-3302 is not a continuing offense.” State v. Palmer, 248 Kan. 681, 690, 810 P.2d 734 (1991).
In Cox’s case, the conspiracy to commit robbery was completed at the time the robbery occurred. The aggravating factor, the “excessive brutality,” did not occur until after the conspiracy had taken place. The object of the conspiracy, the robbery, resulted in the shooting. The overt act in furtherance of the object of the conspiracy could conceivably include Cox’s actions during the carjacking which facilitated the killing. But the brutality of the killing applies to the substantive offense, not to the conspiracy.
The record is reviewed and it is held that under the facts of this case, the trial court’s factual findings neither are supported by evidence in the record nor establish substantial and compelling reasons for an upward sentence departure. K.S.A. 1993 Supp. 21-4721.
We affirm the three convictions and the sentence for felony murder. We vacate the sentences for aggravated robbery and conspiracy to commit robbery and remand for sentencing with instructions to impose the appropriate sentences under the KSGA.
Because of our holding that upward departures in sentencing were not appropriáte, we need not address Cox’s contention that his total term of imprisonment was improperly determined.
Convictions affirmed, sentences vacated in part, and case remanded. | [
80,
-30,
-36,
-65,
13,
-30,
11,
24,
96,
-61,
-26,
83,
45,
-49,
5,
59,
105,
95,
85,
97,
-43,
-73,
103,
-15,
-77,
-77,
83,
-44,
-74,
76,
-18,
-68,
11,
-32,
78,
85,
102,
-54,
-27,
80,
-50,
5,
-120,
-47,
-88,
2,
52,
62,
56,
14,
37,
-98,
-5,
10,
18,
-30,
41,
40,
89,
-19,
-46,
-16,
-46,
15,
-49,
52,
-77,
-92,
-66,
6,
112,
55,
-40,
56,
0,
-24,
99,
-124,
-126,
-92,
109,
-101,
-60,
102,
114,
1,
93,
-17,
-67,
-120,
46,
55,
-99,
-89,
-101,
88,
69,
13,
-106,
-35,
118,
54,
46,
-4,
-17,
4,
-97,
96,
-117,
-49,
-80,
-111,
-51,
53,
-46,
-69,
-5,
-91,
32,
101,
-52,
-30,
76,
100,
114,
-105,
-114,
-76
]
|
The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the sentence imposed foUowing defendant Kelley Grady’s jury conviction for voluntary manslaughter (K.S.A. 1994 Supp. 21-3403). The sentence imposed was a downward dispositional departure from the presumptive guidelines sentence. This appeal was transferred from the Court of Appeals on this court’s order.
This case arises out of a relationship among three people, Kelley Grady (the defendant), Michael Croslin (the victim), and Brenda Croslin (the victim’s wife).
The defendant separated from his wife in late 1991. At that time Michael and Brenda and their two children were living together. Brenda worked two jobs, one as a bartender. The defendant began an affair with Brenda. Brenda left Michael and began renting a home owned by the defendant’s mother and managed by the defendant.
Michael and Brenda had a somewhat violent relationship. On more than one occasion Michael choked and beat Brenda in the presence of their children. Among the incidents were two occasions in July 1993, the month Michael was killed, when Michael choked Brenda and told her he was going to kill her. Another incident occurred when Michael, after a day of drinking, threw Brenda against the car, causing her to strike her head. Brenda had told the defendant about the instances of abuse. Michael also was known to have expressed his anger to others. For example, he once lifted an employee off the floor by her arms and pushed her against the doors of an oven when he was angry with her. On another occasion Michael stated that he would have to kill the defendant “someday” when the defendant admitted to Michael that he (the defendant) was in love with Brenda. The defendant was described as a peaceful, nonaggressive, nonviolent person who sought to avoid conflict.
On March 7, 1993, an incident involving Brenda, Michael, and the defendant occurred. Michael and Brenda argued on the telephone, and Michael then went to Brenda’s rental house, where the defendant and Brenda’s children were also present. Michael began yelling for the defendant to come out of the house and threatened to kill him. The defendant telephoned the police. After the police arrived, Michael left.
The incident giving rise to Michael’s death occurred on July 20, 1993. After working until 9:00 p.m., Brenda went to Michael’s house to pick up their children. When Brenda arrived, Michael began yelling at her, poking her in the chest, slapping her with his hand, and telling her that she was moving back in with him. Brenda told Michael she was not moving back in with him, and Michael became enraged. Michael called the defendant on the telephone and told him Brenda was moving out of the rental house. Michael ordered Brenda to tell the defendant herself; when Brenda would not say anything Michael got mad. The defendant heard Brenda crying in the background. Michael pushed Brenda into the living room and began punching, kicking, and choking her. Michael pushed Brenda through the wall, and her nose started bleeding from a cut. Michael and Brenda’s oldest son (six years old) intervened and tried to pull Michael off Brenda. Brenda heard Michael on the telephone telling a friend to get over there before he killed her. The friend’s wife, listening on an extension telephone, testified Michael asked her husband to come over to his house because “he needed him” and said he had pushed Brenda through a wall and was going to kill both Brenda and the defendant.
After his conversation with Michael, the defendant drove his truck to Brenda’s rental house. Finding nobody there, the defendant drove to Michael’s house, parked in front, and honked the hom. The defendant had a cellular telephone, a knife, and a semiautomatic handgun in his car. Brenda went onto the porch and told the defendant to leave. The defendant began yelling “wifebeater” and for Michael to come out of the house and pick on someone his own size. Brenda saw Michael take a knife from the kitchen. Holding the butcher knife in his right hand, Michael pushed Brenda and the children out of the way and jumped off the porch into the yard. The defendant saw Michael come out of the house with what the defendant thought was a gun. The defendant reached into his vehicle, retrieved his gun, and began shooting at Michael and running. There were three initial gunshots, a pause, and then another series of shots. Michael fell to the ground face first. The defendant threw the gun down, told Brenda to call 911, and went to his truck.
The defendant was arrested when the police arrived. He was cooperative and made a confession admitting to the events described above. The defendant did not testify at trial, but his tape-recorded confession was played for the jury.
The police discovered Michael lying face first on the ground with both hands above his head and with his right hand wrapped around the handle of a butcher knife. Michael was pronounced dead almost immediately after arriving at the hospital. An autopsy revealed 11 separate bullet wounds. One bullet entered the front left upper leg, two bullets entered the right front chest, and the other eight bullets entered the left back. A toxicology report revealed a blood alcohol concentration of .164.
The defendant was charged with one count of first-degree premeditated murder in Michael’s death. The defendant claimed self-defense. The jury found the defendant guilty of voluntary manslaughter.
Prior to sentencing, the defendant filed a motion for a downward departure sentence. Based on the offense of conviction (severity level 3) and the defendant’s criminal history (category I — no prior convictions), the presumptive sentence was a term of incarceration of 46-51 months. The defendant sought both a dispositional and a durational departure. He reasoned that there were substantial and compelling reasons for departure, including the following:
1. The victim was the aggressor.
2. The defendant poses no threat to public safety, and there is no need to protect the public by incarcerating the defendant.
3. The crime was motivated by and in response to the defendant’s awareness of a pattern of physical abuse of Brenda Croslin by the victim.
4. The victim had previously threatened the life of the defendant, leading to the defencfynt’s perception of fear.
5. The defendant’s use of deadly force, even if excessive, was a reaction similar to that of other individuals confronted with life-threatening situations for the first time.
6. The defendant’s conduct was self-defense.
7. The defendant has expressed remorse.
8. The defendant is able to compensate the victim’s sons, but that ability will be diminished by imprisonment.
9. The cost of imprisonment is not justified because there is no need to protect society, whereas the State can receive an economic benefit by a nonimprisonment sentence.
10.There is no benefit to incarcerating the defendant in light of the State’s efforts at reducing prison overcrowding.
The defendant requested imposition of a nonprison sentence of 36 months, including up to 30 days in jail, up to 180 days in community corrections, a period of probation, and public and monetary restitution.
The trial court sentenced the defendant to the presumptive period of incarceration of 49 months and imposed a $100,000 fine. Because the defendant was not a threat to society and in the interest of treating offenders locally where possible, the court then ordered that the sentence be served locally as follows:
1. 30 days in jail;
2. 180 days in residential Community Corrections;
3. 1 year on electronic surveillance;
4. 1,000 hours of public restitution, 4 hours per week after release from jail, $10 credit per hour;
5. supervision by Community Corrections for the duration of the 49 months;
6. no contact with the Croslin children until a review hearing by the Court;
7. payment for a psychological evaluation of the Croslin children.
The court indicated that when supervision by Community Corrections was nearly complete, an additional hearing would be held to evaluate the defendant’s performance of public restitution and his ability to pay the fine. The court indicated its desire to impose the most severe “local” or nonimprisonment sentence possible. The court concluded: “[I]t amounts to a granting of the motion for departure as to disposition.” While not adopting all of the defen dant’s proposed reasons for departure, the court made the following findings of fact:
“[T]his gentleman, number one, is no threat to society. I see no evidence whatever to that effect.
“Number two, that though there wasn’t sufficient evidence to exonerate him by reason of self-defense, he was being advanced upon by a man with a knife. That he made the wrong decision is not to say that it was — showed mens rea, at least in that part of the process. I hesitate to characterize Mr. Croslin’s advance.
“We did hear a great deal of evidence as to Iris temper and Iris drinking, both of which I think are unmistakable. And I say that without saying he should have died or didn’t have a chance to recover. I think he could have, it was, however, part of the facts of the case and of the — and that weighs on my consideration.
“He was also motivated by — I have no reason to doubt that his motivation was a concern for Brenda Croslin. His statement here today does trot cut against that finding and there again without being able to get inside his head I am willing to accept that concern for Brenda Croslin was a significant factor in him going to the place, especially in light of the fact that he had been called by Mr. Croslin.
“The record does I think — again I’m not going to recite all of the things about Mr. Croslin, it’s not his trial, he shouldn’t have been killed and yet it was a very serious situation. Without knowing what was in Mr. Grady’s mind, the objective evidence to this Court does not indicate an execution or cold-blooded killing of Mr. Croslin. And in fact the bullet going near the children tends to cut the other way.”
The State timely appeals the departure sentence.
STANDARD OF REVIEW
This appeal is pursuant to K.S.A. 1994 Supp. 21-4721. That statute provides in pertinent part:
“(a) A departure sentence is subject to appeal by the defendant or the state. . . .
“(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.
“(e) In any appeal, the appellate court may review a claim that:
(1) The sentence resulted from partiality, prejudice, oppression or corrupt motive.”
Recently this court set forth our standard of review:
“A claim that sentencing guidelines departure factors are not supported by evidence in the record should be reviewed to determine whether there is substantial evidence supporting the court’s findings or whether the court’s findings are clearly erroneous. A claim that the departure factors relied upon by the court do not constitute substantial and compelling reasons for departure is a question of law.” State v. Gideon, 257 Kan. 591, Syl. ¶ 20, 894 P.2d 850 (1995).
See State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995). Substantial evidence is sucb legal and relevant evidence as a reasonsable person might accept as being sufficient to support a conclusion. State v. Ratley, 253 Kan. 394, Syl. ¶ 2, 855 P.2d 943 (1993).
TRIAL COURT’S FINDINGS
Threat to Society
The State first argues that the trial court’s finding the defendant is not a threat to society is not supported by substantial evidence. The State reasons that based on the circumstances of the offense, there is evidence the defendant would be a danger to society if not incarcerated.
The State points to the following facts: The defendant had access to a cellular telephone but elected not to use it to call the police. He had a loaded handgun in his vehicle. He knew of Michael’s propensity for violence. He did not leave the premises when Brenda asked him to; rather, he confronted Michael and called him a “wifebeater.” The defendant exhibited a great disregard for Brenda and the Croslin children, who were four feet behind Michael at the time of the shooting. From this evidence, the State concludes that the defendant’s reputation as a peaceful person is inapplicable when the defendant has access to a weapon. The State reasons that the defendant will be reckless when he thinks he can get away with it and that a departure sentence does not deter such conduct.
The defendant correctly points out that in reviewing the decision of the trial court, this court must accept as true the evidence and all inferences which may be drawn from the evidence which support the findings of the trial court. Ratley, 253 Kan. at 398; Taylor v. State, 252 Kan. 98, Syl. ¶ 3, 843 P.2d 682 (1992). It is not this court’s function to reweigh the evidence.
The defendant.reasons that the court’s finding on the lack of threat to society was supported by the following evidence: The defendant was released on bail; between the date of the offense and sentencing the State did not express concern about any threat to public safety; the defendant had no prior criminal history; the defendant had no history of violence; and Michael prompted the incident by calling the defendant. The defendant also stresses that the State was specifically given the opportunity to show the trial court that the defendant posed a threat to society, but the State was unable to do so.
A primary reason given by the trial court for imposing a downward departure sentence was the defendant’s lack of threat to public safety. The court indicated that it would sentence the defendant to the state penal system if it felt that the defendant was a threat to anybody.
The record contains evidence that the defendant is mild-mannered, peaceful, and non-violent. The trial court’s finding that the defendant did not pose a threat to society was supported by substantial evidence in the record. How much weight that factor gets will be discussed later in this opinion.
Concern for Brenda
The State also asserts the trial court’s finding that the defendant went to Michael’s house out of concern for the welfare of Brenda was not supported by substantial evidence. The State contends that the defendant went to Michael’s to provoke a confrontation.
The State points out that the defendant had an alternate course of conduct if he was concerned for Brenda’s welfare: He could have called the police as he had done on a previous occasion when confronted by Michael. The State also reasons that the defendant’s behavior after arriving at Michael’s exhibited no concern for Brenda: Brenda repeatedly asked the defendant to leave, but rather than question Brenda about her welfare he taunted Michael and challenged him to come out of the house. Moreover, the State argues, the defendant’s conduct in shooting Michael without re gard for where Brenda and the Croslin children were indicates no concern for Brenda’s welfare.
The defendant’s response is that he knew Brenda had been beaten by Michael in the past and within the weeks preceding the incident. He contends that Michael initiated the incident by calling the defendant. In his confession, the defendant stated, “I thought he’d finally gone off the deep end. I thought — I thought she was going to be dead.” The defendant told the trial court at sentencing: “I went there . . . that night with intent to help Brenda and that was it.” The defendant also stresses that he remained near his truck after he arrived at Michael’s and he retrieved his gun only after Michael came toward him with what the defendant believed was a gun.
There is substantial evidence in the record from which the trial court could conclude that the defendant went to Michael’s house out of concern for Brenda. The fact that the defendant had an alternative course of action — calling the police — does not negate the evidence that he went to Michael’s out of concern for Brenda’s welfare, and neither do his actions in shooting Michael despite Brenda’s proximity to Michael. As the defendant points out, he was aware of the violent relationship between Brenda and Michael. The trial court could conclude based on the evidence at trial and the defendant’s statement at sentencing that the defendant’s motivation for going to Michael’s house was concern for Brenda.
DEPARTURE SENTENCE
K.S.A. 1994 Supp. 21-4716 governs departure sentences. In pertinent part, that statute provides:
“(a) The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines . . . unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.
“(b) (1) Subject to the provisions of subsection (b)(3), the following nonexclusive list of mitigating factors maybe considered in determining whether substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.
(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when die offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.
(D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.
(2) [Section on nonexclusive list of aggravating factors is omitted.]
(3) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.
“(c) In determining aggravating or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
(3) written briefs and oral arguments of either die state or counsel for the defendant; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and rehable.” K.S.A. 1994 Supp. 21-4716.
K.S.A. 1994 Supp. 21-4728 states, “The sentencing court should consider in all cases a range of alternatives with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case, consistent with tírese guidelines and the permitted dispositional and durational departures contained in this act.” K.S.A. 1994 Supp. 21-4719 sets some limits on departure sentences:
“(a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section.
“(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment:
(1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender’s criminal history; and
(2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of die presumptive imprisonment term.
“(c) When a sentencing judge imposes a prison term as a dispositional departure:
(1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction; and
(2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.
“(d) If the sentencing judge imposes a non-prison sentence as a dispositional departure from the guidelines, the recommended duration shall be as provided in subsection (c) of K.S.A. 21-4611 and amendments thereto.”
The recommended duration of probation for a severity level 3 felony offense is 36 months, and the total period of probation shall not exceed 60 months or the maximum period of the prison sentence which could be imposed, whichever is longer. K.S.A. 1994 Supp. 21-4611.
Substantial and Compelling Reasons
Whether the trial court’s findings constitute substantial and compelling reasons for departure is a question of law. The question in this analysis is twofold. First, is a particular reason given by the sentencing court a valid departure factor? Second, are the reasons, as a whole, substantial and compelling reasons for departure in a given case? Reasons which may in one case justify departure may not in all cases justify a departure. Rather, the inquiry must evaluate the crime and the departure factors as a whole to determine whether departure in a particular case is justified. It is a question of what weight to give each reason stated and what weight to give the reasons as a whole in light of the offense of conviction and the defendant’s criminal history. The inquiry also considers the purposes and principles of the KSGA.
The sentencing court here gave four reasons for imposing a dis-positional departure and sentencing the defendant to a nonprison sentence:
1. The defendant was being advanced upon by a man with a knife, though he made the wrong decision in handling the situation.
2. The objective evidence does not indicate an execution or cold-blooded killing of Michael Croslin.
3. The defendant does not pose a threat to the safety of society.
4. The defendant was motivated by concern for Brenda Croslin.
1. Armed Aggressor
The State reasons that the defendant’s use of bad judgment when being approached by an armed aggressor cannot be considered as a substantial and compelling reason for departure because it is part and parcel of the defendant’s voluntary manslaughter conviction. The State directs this court’s attention to the following statutes:
“If a factual aspect of a crime is a statutory element of tire crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.” K.S.A. 1994 Supp. 21-4716(b)(3).
“Voluntary manslaughter is the intentional killing of a human being committed:
(a) Upon a sudden quarrel or in the heat of passion; or
(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211.” K.S.A. 1994 Supp. 21-3403.
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” K.S.A. 21-3211.
The defendant points out that the fact the victim was an aggressor is a statutory mitigating departure factor listed in K.S.A. 1994 Supp. 21-4716(b)(1)(A). He reasons that the evidence here clearly showed that Michael Croslin was an aggressor.
According to the State’s analysis, the sentencing court’s finding that the defendant used bad judgment when confronted with an armed person is a fact inherent in, and not significantly different than, the conduct usually found in a voluntary manslaughter conviction. The State argues that the fact the victim was an armed aggressor is captured by the element of voluntary manslaughter dealing with the defendant’s unreasonable belief that deadly force was justified; therefore, that factor cannot be used as a departure reason.
As the defendant points out, however, there are alternative means by which voluntary manslaughter may be committed: upon a sudden quarrel or in the heat of passion, or by an unreasonable but honest belief that deadly force was justified. The jury verdict does not indicate by which means it found the defendant guilty. Indeed, the State argued to the trial court during the defendant’s post-trial motion for acquittal that there was no indication by which alternative means the jury convicted the defendant. Moreover, during the sentencing hearing both parties so argued.
The mitigating circumstance found by the sentencing court and the element of the offense of conviction are somewhat different.
In State v. Alexander, 125 Wash. 2d 717, 888 P.2d 1169 (1995), the defendant sold- an undercover police officer $20 worth of cocaine (an estimated .03 gram, an amount too small to be measured). The trial court gave a downward dispositional departure. In Washington state, by statute, a substantial and compelling reason for an upward departure is that the crime involved quantities of drugs substantially greater than for personal use or the defendant exhibited a high degree of sophistication. The trial judge held that by logical corollary a very small amount of drugs or a low degree of sophistication is justification for a downward dispositional departure.
The Washington Supreme Court held that in determining whether the legislature necessarily considered the factor “in establishing the standard sentence range depends both on whether the factor is an element of the crime of which the defendant has been convicted, and on whether the factor is considered in the computation of a defendant’s standard sentence range” under the sentencing guidelines. 125 Wash. 2d at 726. In essence, the Washington court held the extraordinary small amount justified a downward departure while the level of sophistication did not.
Obviously, the Alexander case can be distinguished from the case before this court. It does, however, illustrate that where there is reasonable doubt as to whether the legislature necessarily considered a factor in establishing the standard sentence range, the trial court has discretion to depart.
K.S.A. 1994 Supp. 21-4716(b)(3) does not prohibit the finding that the victim was an armed aggressor as a mitigating factor in this case because the State has not established on what basis the defendant was convicted of voluntary manslaughter; thus, the fact the deceased was armed with a deadly weapon and may have been the aggressor involves exceptional circumstances that can justify a downward departure.
2. Not a Cold-Blooded Killing
Another reason for departure cited by the sentencing court was that the objective evidence did not suggest a cold-blooded, execution-style killing; rather, the incident was one of general confusion. As with the “armed aggressor” departure factor, the State argues that this departure factor violates K.S.A. 1994 Supp. 21-4716(b)(3). The State reasons that this finding is merely a finding that the killing was not premeditated, a fact already determined by the jury’s verdict of guilty of voluntary manslaughter and a fact already considered by the Legislature in classifying the offense of voluntary manslaughter.
The defendant cites State v. Freitag, 74 Wash. App. 133, 873 P.2d 548 (1994). There, the defendant was convicted of vehicular assault. A downward departure sentence was imposed, largely because of the defendant’s crime-free history, even though her criminal history rating (“0”) was already taken into account in establishing the presumptive sentence. Citing State v. Nelson, 108 Wash. 2d 491, 740 P.2d 835 (1987), the Washington Court of Appeals concluded that not all “0” criminal history scores are created equal. The court distinguished between a lack of “counted” criminal history and a lack of any criminal history whatsoever. The court concluded that the defendant’s lack of counted criminal offenses could not be used as a departure factor. However, because a criminal history rating of “0” did not reflect her complete lack of any police contacts whatsoever, the defendant’s complete lack of criminal contacts could be considered. 74 Wash. App. at 141, 145.
Our Court of Appeals has adopted a similar rule in relation to the age of a defendant’s prior criminal history. In State v. Richardson, 20 Kan. App. 2d at 943, the Court of Appeals held that the trial court could properly consider the time elapsed since the defendant’s last felony offenses as a departure factor because that factor was not taken into account in calculating the defendant’s criminal history rating.
The element of premeditation will be lacking in all voluntary manslaughter offenses. By finding the defendant guilty of voluntary manslaughter, thereby acquitting the defendant of first-degree murder, the jury found that the defendant’s crime was not premeditated, i.e., not a cold-blooded or execution-style killing. That fact is already taken into consideration in establishing the presumptive sentence for the defendant’s crime. Therefore, it may not be used again as justification for a dispositional departure.
3. No Threat to Society
We believe the trial court’s finding that defendant would be no threat to society is wider than the State paints it. In State v. Rogers, 112 Wash. 2d 180, 183, 770 P.2d 180 (1989), the State of Washington held that the fact a defendant has never been convicted of a crime may not be used as a basis to depart. However, the Washington appellate courts have not always followed that general rule, instead making exceptions where the lack of a criminal history can be interpreted to support a lack of any predisposition to commit not only a similar crime but any other crime (State v. Freitag, 74 Wash. App. 133) and where the lack of criminal history is combined with a failed common-law or statutory defense. Boemer, Sentencing in Washington § 9.12(c), 9-23, 9-24; § 9.12(c)(4), 9-29, 9-30 (1985); State v. Nelson, 108 Wash. 2d 491. Here, we have a failed self-defense theory by a person with no prior criminal history.
In State v. Gideon, 257 Kan. at 625, we held the trial court did not err in using prior convictions of the same statutory offense as substantial and compelling reasons to impose an upward departure from the sentencing guidelines.
We believe the legislature did not intend to prohibit a lack of criminal history as a downward dispositional departure factor in all cases. While generally criminal history is an improper departure factor because criminal history has already been used to set the presumptive sentence, we believe the legislature intended in the interest of justice that a trial court have discretion to impose a downward dispositional departure where a defendant has no prior criminal history and has a failed common-law or statutory defense that is not meritless. We also construe the trial court’s finding that the defendant poses no threat to society to be a finding that the defendant has no predisposition to commit a similar crime or any other crime. These are appropriate mitigating factors for a downward dispositional departure.
4. Concern for Brenda
The State also complains of the sentencing court’s reliance on the defendant’s motivation for going to Michael’s house as a departure factor. The sentencing court found that the defendant went to the victim’s house out of concern for Brenda, a finding that is supported by substantial evidence in the record. The State argues that the defendant’s motivation is not a fact which distinguishes this case from all other voluntary manslaughter cases.
The State is incorrect in arguing that a defendant’s motivation or alternate course of conduct is inherent in every voluntary manslaughter case. The defendant’s motivation has not been considered by the legislature in classifying the defendant’s crime and in establishing the presumptive sentence. However, the defendant’s motivation in being at the location of the crime is not, by itself, a substantial and compelling reason justifying departure in this case. Whether the defendant was prompted to go to Michael’s house out of concern for Brenda or for some other reason, such as that he went to Michael’s house with Brenda to pick up her children, that fact does not make this voluntary manslaughter offense so different from other voluntary manslaughter offenses as to be a substantial and compelling reason for departure. The trial court’s finding that the defendant’s motivation for being at the location of the offense was concern for Brenda is equivalent to a finding that the defendant did not go to that location to provoke a conflict with the victim. While motivation for being at the location of an offense may in some instances distinguish one defendant’s offense from other similar crimes, it is not, by itself, a substantial and compelling distinction here.
Was Departure Justified?
The final analysis is not whether any departure factor, in isolation, can be a substantial and compelling reason for departure but whether, as a whole, the factors are substantial and compelling reasons for imposing a departure sentence in this case in light of the offense of conviction, die defendant’s criminal history, and the purposes of the sentencing guidelines.
The Kansas Legislature did not include in the statutes the purposes and objectives of the guidelines. According to the legislative history, the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 et seq., is based on the following principles:
1. Prison space should be reserved for serious/violent offenders who present a threat to society.
2. The degree of sanctions imposed should be based on the harm inflicted.
3. Sanctions should be uniform and not related to socioeconomic factors, race, or geographic location.
4. Penalties should be clear so everyone can understand exactly what has occurred once sentence is imposed.
5. The State has an obligation to rehabilitate those incarcerated, but persons should not be sent to prison solely to gain education or job skills, as these programs should be available in the community.
6. The system must be rational to allow policy makers to allocate resources. Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report to Senate Committee on Judiciary, January 14, 1992). See also Kansas Sentencing Guidelines Implementation Manual, p. i-l-2 (1992).
Additionally, this court has recognized that the purpose of the retroactivity provision of the KSGA is to reduce prison overcrowding while protecting public safety. The guidelines were intended to standardize sentences so that similarly situated offenders would be treated the same, limiting the effects of racial or geographic bias. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
The sentencing court here discussed on the record its rationale for treating the defendant locally, stating:
“The issue is is Mr. Grady a threat to society and what is [the] appropriate way for that punishment to be done? The issue is becoming increasingly, if we don’t know it already then we better start to take notice of it now, that we are coming to a place where local corrections and state corrections are going to be more sharply defined.
“The State government is reducing its state corrections and looking more to the local community to undertake corrections. The question is are we in a posture where local corrections are sufficient punishment for what Mr. Grady has done or is it a state matter? I’m going to take the position that if he were a threat to society, a threat to anybody around, if I thought for one instant anything like this might occur again I would send him to the state penal system.
“I believe that this is a matter which since there is no threat to society that his 49 months of punishment must somehow be done within the tools available to us locally.”
The court imposed the most severe nonprison sentence it thought possible.
The court’s rationale is in keeping with the principle behind the KSGA for reserving incarceration for serious or violent offenders who present a threat to public safety. The departure findings made by the trial court are supported by substantial evidence in the record, and as a whole the findings constitute substantial and compelling reason for a downward dispositional departure.
The trial court is affirmed. | [
-48,
-32,
-35,
-18,
41,
98,
42,
116,
114,
-89,
-30,
-13,
-87,
-19,
69,
105,
-8,
29,
84,
105,
49,
-89,
7,
65,
-6,
-69,
-72,
-44,
-77,
78,
-26,
-1,
76,
96,
74,
85,
102,
-54,
-11,
86,
-118,
13,
-87,
-16,
88,
-102,
50,
127,
64,
15,
49,
-97,
-85,
42,
28,
-58,
8,
44,
11,
44,
80,
56,
-117,
13,
-17,
18,
-77,
-122,
-100,
-95,
-8,
63,
-104,
48,
0,
-24,
115,
-108,
-126,
116,
95,
-117,
4,
39,
98,
37,
-115,
-57,
-19,
-103,
-113,
126,
-99,
-121,
-40,
89,
1,
76,
-105,
-97,
116,
52,
13,
124,
-1,
-116,
12,
-28,
-116,
-53,
-108,
-71,
-51,
120,
86,
-118,
-53,
37,
32,
97,
-37,
-96,
68,
69,
122,
-33,
-70,
-12
]
|
In a letter dated December 6,1995, to the Clerk of the Appellate Courts, respondent John L. White, of Leavenworth, Kansas, an attorney admitted to practice law in the State of Kansas, voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1994 Kan. Ct. R. Annot. 215). The letter was also signed by respondent’s attorney, Laurence M. Jarvis.
On November 30,1995, pursuant to Supreme Court Rule 203(b) (1994 Kan. Ct. R. Annot. 189), this court issued an order directing respondent to appear before the Kansas Supreme Court on Friday, December 8, 1995, at 9 a.m., to show cause why he should not be temporarily suspended from the practice of law. The surrender of respondent’s license to practice law occurred prior to that appearance date.
At the time respondent surrendered his license, there were five separate complaints scheduled for hearing before a panel of the Kansas Board for Discipline of Attorneys. The complaints set for hearing involving respondent contained allegations of misappropriation of client funds and improper use of respondent’s trust account.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that John L. White be and he is hereby disbarred from the practice of law in the State of Kansas arid 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 John L. White from the roll of attorneys licensed to practice law in the State of Kansas.
Dated this 11th day of December, 1995.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217). | [
-80,
-21,
-44,
29,
24,
65,
-78,
-65,
81,
-47,
103,
81,
-23,
-34,
4,
121,
2,
45,
21,
123,
-59,
-74,
127,
-87,
100,
-13,
-47,
-59,
-71,
79,
-28,
-67,
76,
56,
10,
-43,
6,
-54,
-63,
-36,
-50,
5,
27,
-40,
-45,
-127,
52,
9,
16,
11,
49,
62,
-77,
42,
57,
-23,
-56,
108,
-21,
9,
17,
-111,
-102,
-107,
126,
7,
-109,
4,
28,
-121,
88,
-81,
-100,
59,
9,
-20,
115,
-74,
-126,
118,
79,
-23,
44,
98,
98,
52,
49,
-81,
-68,
-84,
14,
120,
-99,
-94,
-39,
88,
73,
-120,
-74,
-99,
101,
20,
43,
124,
-86,
6,
29,
-20,
30,
-54,
-44,
-77,
-49,
87,
-114,
-101,
-1,
-26,
0,
84,
-108,
-27,
92,
83,
50,
27,
-50,
-12
]
|
The opinion of the court was delivered by
Allegrucci, J.;
Michael J. Bell appeals his convictions of attempted criminal trespass, a class C misdemeanor, and stalking, a class B misdemeanor. He was sentenced to three months’ incarceration for the stalking conviction and one month’s incarceration for the attempted criminal trespass conviction, with the terms to run consecutively. The Court of Appeals reversed and remanded for jury trial on the ground that where potential imprisonment exceeds six months, the right to jury trial can be waived only by defendant personally after he or she has been advised of the right. State v. Bell, 20 Kan. App. 2d 193, 884 P.2d 1164 (1994). This court granted the State’s petition for review.
The facts are set out in the opinion of the Court of Appeals and are undisputed. Defendant was charged with one count of attempted criminal trespass, in violation of K.S.A. 1993 Supp. 21-3301 and K.S.A. 1993 Supp. 21-3721(a)(1)(B), and one count of stalking, in violation of K.S.A. 1993 Supp. 21-3438. At arraignment in December 1993, he pled not guilty.
On February 22, 1994, defendant’s case was transferred to another division of the district court for trial setting. On March 11, 1994, the case was set for trial to begin on April 11. Also on March 11, defendant filed a written request for a jury trial. The district court concluded that the request was not timely and denied the request. On April 11, defendant was tried by tire district court judge and found guilty on both counts.
On April 15, defendant filed a notice of appeal. On May 5, he was sentenced to jail custody for three months on the stalking conviction and for a consecutive period of one month on the attempted criminal trespass conviction. “The defendant has apparently served the sentence.” 20 Kan. App. 2d at 194.
The single issue raised by defendant in the Court of Appeals was whether his request for jury trial was timely under K.S.A. 1993 Supp. 22-3404. The statute provides in pertinent part: “(1) The trial of misdemeanor and traffic offense cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel.” The Court of Appeals stated:
“The trial court found that he received ‘first notice of trial assignment’ on February 22, 1994, the day the case was transferred to Division I. According to the trial court’s interpretation, March 3, 1994, was the last day that a timely request could be made. Therefore, the defendant’s request for a jury trial on March 11, 1994, was untimely.” 20 Kan. App. 2d at 196.
The Court of Appeals agreed with the reasoning of the trial court, as far as it went. The Court of Appeals’ opinion then took the following turn:
“While we find the court was correct in its analysis of the ‘trial assignment’ language, we see another facial error of constitutional proportions in the denial of a jury trial.
“Under State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975), and a recent Court of Appeals decision relying on Irving, State v. Jones, 19 Kan. App. 2d 982, 879 P.2d 1141 (1994), a defendant charged with a misdemeanor or traffic offense, Where the potential imprisonment excéeds six months, has a right to a jury trial, regardless of whether it is requested within seven days after notification of a trial assignment. In order to waive the right to a jury trial under these circumstances, the defendant must first be advised by the court of his or her right to a jury trial, and the defendant must personally waive that right in writing or in open court.
“We are aware that trial judges at arraignment or other appropriate times will sometimes inform the defendant that a sentence of greater than six months will not be given if the defendant is found guilty of a misdemeanor. This removes the potential of a sentence greater than six months. The record before us does not reflect this was done. If the record is otherwise, it might affect this decision. However, based on the record before us, the defendant faced a potential sentence of six months on the stalking count and an additional month on the attempted criminal trespass count. Under these facts, even though the eventual sentence was less than six months, he was entitled to the protections of Irving. Since he did not receive them, we must reverse and remand for jury trial.” 20 Kan. App. 2d at 201-02.
The State’s petition for review of the decision of the Court of Appeals focused exclusively on the constitutional right to trial by jury, as do the supplemental briefs filed by defendant and the State in this court. Supreme Court Rule 8.03(g)(1) (1994 Kan. Ct. R. Annot. 47) provides in pertinent part:
“[T]he issues before the Supreme Court include all issues properly before the Court of Appeals that the petition for review or cross-petition allege were decided erroneously by the Court of Appeals. In civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review.”
Defendant neither responded to the State’s single-issue petition for review nor filed a cross-petition and did not raise the statutory interpretation issue in his supplemental brief; therefore, it is considered abandoned. For that reason, the Court of Appeals’ rationale and finding with regard to the statutory interpretation is not disputed and is controlling in the appeal.
The single issue raised by the State in its petition for review is whether a defendant charged with two misdemeanors which carry aggregated penalties potentially exceeding six months’ imprisonment is entitled to a trial by jury. The Court of Appeals based its decision on State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975), and State v. Jones, 19 Kan. App. 2d 982, 879 P.2d 1141 (1994), both of which involved a single offense which carried a potential penalty exceeding six months’ imprisonment. The Court of Appeals simply assumed the answer to the basic question whether penalties for multiple petty offenses should be aggregated for the purpose of determining the right to a jury trial. The parties’ supplemental briefs are directed solely to this issue.
The question we must first answer is whether the Court of Appeals erred in considering this issue sua sponte. In State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), we noted that the question had previously been before this court on several occasions. We concluded:
“[Ajlthough ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights.” 230 Kan. at 600-01.
We further noted that in Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967), this court recognized the following three exceptions to the general rule:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.” Puckett, 230 Kan. at 598-99.
We further cautioned that
“[i]n future cases, where an appellate court raises a new issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined. This may be done either by requiring the filing of supplemental briefs or by setting the case down for reargument by file appellate court. Such a procedure would have been appropriate in the present case so that the correctness of the instructions covering the elements on the fraud counts could have been briefed and argued by counsel. We note, however, that in the instant case counsel for the State does not claim that the Court of Appeals was wrong in suggesting that the instructions be modified on retrial of the case. This court has no quarrel with the holding of the Court of Appeals that instructions covering a criminal charge of fraud should advise the jury that a false representation must be of a material fact in order to convict.” 230 Kan. at 601.
As previously noted, neither party in the present case raised the issue in the trial court or in the Court of Appeals. Obviously, the State takes issue with the Court of Appeals’ holding that defendant is entitled to a jury trial. We also note that the entire discussion of the issue by the Court of Appeals is contained in the last two paragraphs of the 14-page opinion. The parties were not given the opportunity to brief the issue or “present their positions” to the Court of Appeals.
In Johnson v. Kansas Neurological Institute, 240 Kan. 123, 126, 727 P.2d 912 (1986), we restated the general rule that ordinarily an appellate court will not consider on appeal an issue not raised in the trial court. We noted the rule limits the appellate court from considering issues sua sponte and noted the three exceptions. We concluded that the Court of Appeals had erred in determining an issue sua sponte, but since we granted the petition for review and the parties had filed supplemental briefs and argued the issue in this court, we had authority to consider the issue.
Here, the Court of Appeals relied on Irving, 216 Kan. 588, and Jones, 19 Kan. App. 2d 982, in holding that defendant had a constitutional right to a jury trial. In both of these cases, the defendant was charged with a single offense and not multiple offenses. The question of whether a potential aggregate sentence exceeding six months requires a jury trial was not an issue in either case. Clearly, the cases are not controlling in the present case. More significantly, the Court of Appeals did not mention or discuss the numerous relevant federal and state cases which were cited by the parties in their supplemental briefs. These cases do not reach similar conclusions but are consistent in holding that the multiple petty offenses must arise from the same act before the aggregated sentence becomes relevant in defending a defendant’s right to a jury trial. In United States v. Potvin, 481 F.2d 380, 381 (10th Cir. 1973), the Tenth Circuit Court of Appeals agreed with defendant’s contention that “a person charged with two or more petty offenses arising out of the same act, transaction, or occurrence, is entitled to a trial by jury when the potential aggregate penalty on all counts is in excess of six months imprisonment.” See U.S. v. Coppins, 953 F.2d 86 (4th Cir. 1991); Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983); State v. Sanchez, 109 N.M. 428, 786 P.2d 42 (1990).
In the present case, defendant was charged with committing a criminal trespass on October 5, 1993, and with stalking between October 21, 1993, and November 1,1993. Defendant was charged and convicted of two separate petty offenses, neither of which carried a possible sentence of six months or more. Since the two offenses did not arise out of the same act or occurrence, defendant cannot aggregate the maximum sentence simply because they are charged in the same complaint. For that reason, defendant’s constitutional right to a jury trial was not at issue before the Court of Appeals, and its consideration was not necessary to serve the interests of justice or to prevent a denial of fundamental rights. Thus, the issue was not properly before the Court of Appeals, and the court erred in considering the issue and in reversing and remanding for a jury trial.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed. | [
80,
-32,
-75,
-97,
11,
98,
34,
-100,
1,
-13,
38,
83,
41,
-56,
4,
123,
25,
47,
85,
121,
-40,
-122,
103,
65,
-78,
-5,
17,
-43,
-5,
-37,
-19,
-9,
8,
-80,
-54,
85,
-90,
-56,
45,
30,
-114,
-121,
-119,
-60,
-109,
10,
32,
122,
22,
15,
-79,
28,
-13,
106,
26,
-61,
73,
40,
26,
61,
-102,
-39,
-85,
71,
-34,
22,
-93,
-122,
-37,
7,
112,
62,
-108,
60,
10,
-24,
-13,
-106,
-126,
85,
111,
-69,
-84,
38,
98,
33,
13,
-57,
-16,
-95,
46,
84,
-67,
-25,
-104,
72,
65,
100,
-106,
-97,
117,
54,
34,
-4,
-25,
-124,
21,
108,
-124,
-33,
-80,
-109,
15,
48,
70,
-48,
-21,
-91,
32,
113,
-56,
-30,
86,
-57,
114,
-69,
-82,
-76
]
|
The opinion of the court was delivered by
Allegrucci, J.:
Defendant Roy E. Humphrey was convicted of one count of first-degree murder, two counts of aggravated assault, and one count of unlawful possession of a firearm. His convictions were affirmed in our original opinion, filed October 27, 1995. State v. Humphrey, 258 Kan. 351, 905 P.2d 664 (1995). On October 30, 1995, defendant timely filed a motion for rehearing/modification pursuant to Supreme Court Rule 7.06 (1994 Kan. Ct. R. Annot. 43).
Humphrey seeks reconsideration of his argument that the trial court improperly tripled his sentence under the Habitual Criminal Act, K.S.A. 21-4504. One of the documents relied on in tripling Humphrey’s sentence was a certified judgment and commitment order from the United States District Court for the District of Colorado. It was marked Exhibit 3 and, when offered, was objected to by defense counsel. Because this document, on which Humphrey’s argument was based, was not included in the record on appeal, we stated in the original opinion: “[T]here is no way to consider the merits of Humphrey’s contention.”
Humphrey, in the motion for rehearing/modification, now advises this court that he requested additions to the appellate record, including the document in question, and that the request was granted on September 8, 1995. Unfortunately, the order granting the request was not forwarded to the Clerk of the Finney County District Court, and the addition to the appellate record was not made.
Since the motion for rehearing/modification was filed, the document in question, Exhibit 3, has been added to the appellate record and reviewed by this court. The document states that Hum phrey pled guilty to the felony offense of possessing in commerce and affecting commerce a firearm in violation of 18 U.S.C. App. §1202(a) (1976) and that he was sentenced to imprisonment for 20 months. The federal criminal statute provides in part:
“Any person who . . . has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who . . . possesses ... in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U.S.C. App. § 1202(a).
Humphrey relies on cases in which the appellate courts disapproved of proof of prior convictions by FBI and KBI “rap sheets” and a statement made to a court services officer (citing Tuscano v. State, 206 Kan. 260, 266, 478 P.2d 213 [1970]; State v. Taylor, 198 Kan. 290, 299-300, 424 P.2d 612 [1967]; and State v. Hicks, 11 Kan. App. 2d 76, 88, 714 P.2d 104 [1986]). Those cases are readily distinguishable from the present case in which a certified copy of a judgment and commitment order was admitted. Humphrey s contention narrows down to the fact that the offense was not labeled as a felony within the four comers of the document. It is clear, however, from the United States Code in effect at the time that the offense was a felony, and K.S.A. 60-409 authorizes judicial notice being taken of public statutes. Thus, we find no merit to Humphrey’s contention.
We affirm our original opinion, with the exception of that part of the opinion which attributed our not considering the merits of Humphrey’s argument due to his failure to include Exhibit 3 in the appellate record. We adhere to our affirmance of the judgment of the district court. | [
-80,
-30,
-15,
29,
58,
98,
50,
-66,
2,
-95,
38,
115,
-87,
-50,
4,
121,
-63,
111,
117,
121,
-28,
-105,
119,
-55,
118,
-69,
-95,
-41,
50,
75,
-19,
-76,
28,
-12,
122,
85,
70,
-54,
-29,
86,
-114,
4,
9,
-48,
65,
74,
36,
47,
20,
7,
53,
-114,
-93,
34,
26,
-63,
9,
44,
75,
-83,
88,
-103,
-70,
-59,
-55,
5,
19,
-106,
-104,
5,
88,
37,
-104,
57,
9,
104,
115,
2,
-124,
84,
109,
-103,
108,
102,
34,
50,
85,
-49,
40,
-120,
47,
122,
29,
-25,
-104,
88,
107,
-91,
-106,
-99,
118,
22,
6,
120,
-18,
5,
23,
108,
13,
-50,
-76,
-109,
-113,
48,
-62,
-13,
-21,
37,
-96,
84,
-49,
-26,
92,
71,
88,
-109,
-114,
-74
]
|
The opinion of the court was delivered by
Abbott, J.:
This case is before the court on questions certified by the United States District Court for the District of Kansas under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Judge Patrick F. Kelly certified to this court the following questions:
I. Whether, in light of the provisions of the Health Care Provider Insurance Availability Act, Kansas law recognizes a claim of bad faith against the Health Care Stabilization Fund when a judgment is returned in excess of the Fund’s statutory limits of liability.
II. May the plaintiffs holding the excess judgment prosecute such a bad faith action against the Fund by way of garnishment in light of K.S.A. 60-723(d)?
The facts as set forth in the district court’s order certifying these questions are as follows. Plaintiffs Darcy Aves, a minor, and her parents, Faye and Dan Aves, brought an action in 1988 for medical malpractice against Dr. Nasreen B. Shah and the Central Kansas Medical Center (CKMC) for damages arising from negligence related to Darcy’s birth. On November 15, 1990, the jury returned a verdict which found Dr. Shah 90% at fault and CKMC 10% at fault. The jury awarded total damages in excess of $23 million; Dr. Shah’s share of the damages was in excess of $21 million. The United States 10th Circuit Court of Appeals affirmed the verdict on appeal. Aves v. Shah, 997 F.2d 762 (10th Cir. 1993).
The present action pending before Judge Kelly is a garnishment action filed on October 18, 1993. Plaintiffs contend that Fletcher Bell, the former Commissioner of Insurance of the State of Kansas, serving as Administrator of the Health Care Stabilization Fund (the Fund), acted negligently and in bad faith in conducting the defense of Dr. Shah in the underlying action and in failing to settle the claim. The plaintiffs named Ron Todd as the garnishee in this action. He succeeded Fletcher Bell as Commissioner of Insurance of the State of Kansas.
Judge Kelly made the following assumptions for the purposes of certification: The Fund acted negligently and in bad faith in failing to settle plaintiffs’ claims. During 1990, the Fund effectively assumed the defense of Dr. Shah, employing an attorney for her defense. The Fund required this attorney to report to and take directions from the Fund’s staff. Prior to and during the trial, the attorney notified the Fund that he did not believe he could obtain a verdict for less than the combined policy limits of Dr. Shah’s insurance policies, which was $3.2 million. A second attorney hired by the Fund as an independent advisor also advised the Fund that the plaintiffs would probably receive a verdict for more than $3.2 million. Despite being informed by two attorneys that a verdict in excess of the $3.2 million policy limits was likely, the Fund rejected the plaintiffs’ offers to settle for either $3.1 or $3.2 million. Instead, the Fund extendéd settlement offers of $1.2 million prior to trial and $1.5 million during trial. Representatives of the Fund advised plaintiffs’ counsel that they were not concerned with whether Dr. Shah was “stuck” with a big verdict, but they were only concerned with “trying to avoid paying $3.2 million.”
Before this court addresses the merits of the case, an understanding of the statutoiy insurance plan is helpful. In the mid-1970s, the legislature, in response to the high cost and unavailability of medical malpractice insurance, adopted the Health Care Provider Insurance Availability Act (the Act), K.S.A. 40-3401 et seq. The Act required licensed health care providers to obtain primary malpractice insurance as a condition precedent to practicing their profession in Kansas. Originally, the Act required a health care provider to obtain primary medical malpractice insurance with at least $100,000 per occurrence coverage and not less than $300,000 annual aggregate coverage for all claims of primary medical malpractice insurance. At the time of the events that are the subject matter of this lawsuit, K.S.A. 40-3402 required a primary coverage of $200,000 per occurrence and not less than $600,000 annual aggregate for all claims.
If a health care provider could not obtain primary malpractice insurance from a private insurance carrier, the Act provided health care providers with primary malpractice insurance through the Health Care Provider Insurance Availability Plan (the Plan). Thus, the health care provider could purchase primary malpractice insurance from a private insurance carrier or be placed in what amounted to an assigned risk pool in the Plan. The Plan was managed by an insurance company through a contract with the Kansas Insurance Department. Dr. Shah carried a primary malpractice insurance policy through the Plan.
The Act also provides excess medical malpractice insurance through the Fund. While mandatory, a health care provider’s excess coverage which is provided by the Fund may be canceled if the Fund determines that the health care provider presents a material risk of significant future liability to the Fund. Originally, the Fund paid all judgments which were beyond the policy limits of the health care provider’s primary coverage. Later, the Fund was capped, and it currently only pays $3 million on any judgment above the health care provider’s primary policy in any one case.
The Fund itself is funded by a surcharge on the primary policy purchased by all health care providers. The Fund is independently supported by the surcharges. The Fund and the Plan are interrelated in that any loss by the Plan’s contract carrier in excess of the premiums paid by the health care provider is made up by the Fund and any profits are paid to the Fund. The State does not pay any of the expenses or losses of either the Plan or the Fund. (The State does pay the premium and surcharges for health care providers employed by the State, for medical students, and for residents of the University of Kansas School of Medicine.) The Fund money is held in a segregated fund in the state treasury (K.S.A. 40-3403[a]). All money in the Fund comes from surcharges against health care providers when they purchase mandatoiy basic coverage and interest and investment income earned thereon.
When a health care provider is sued for malpractice, the primary coverage insurance carrier may choose to provide a defense for the health care provider, or it may pay its limits to the Fund and the Fund may take over the defense. If the Fund settles a case, the settlement must be approved by a district court judge. K.S.A. 40-3410. On occasion, the Fund has demanded that the primary in surance carrier settle within its policy limits or face a negligence or bad faith claim.
The facts submitted to us are that the Fund was not only negligent, but it also acted in bad faith in settlement negotiations. Yet, the persons administering the Fund will experience no financial consequences regardless of the outcome of this case, while the other parties, directly and indirectly involved in the case, will experience severe financial consequences depending upon the outcome. This is tihe real tension in this case. On the one hand, Dr. Shah will be financially devastated if the Fund is not liable for its refusal to settle within the policy limits. On the other hand, if the Fund is liable for bad faith or negligent failure to settle, it is the health care providers of this State, required by law to participate in the Fund, who will be financially affected by the Fund’s liability. The Fund itself will not be affected. Rather, the health care providers will pay for the Fund’s liability via an increased surcharge on their basic coverage premiums. This increased surcharge will not cover the medical malpractice of a health care provider but will simply cover the negligence or bad faith of the Fund’s administrators in refusing to settle within the statutory limits. This tension is not a factor in this case other than it might have some bearing on legislative intent.
Defendant Commissioner claims that the present action is barred by the provisions of the Act. The Commissioner cites in particular K.S.A. 40-3403(e), K.S.A. 40-3412(c), and a garnishment statute, K.S.A. 60-723(d). K.S.A. 40-3403(e) provides:
“(e) In no event shall the fund be hable to pay in excess of $3,000,000 pursuant to any one judgment or settlement against any one health care provider relating to any injury or death arising out of the rendering of or the failure to render professional services on and after July 1, 1984, and before July 1, 1989, subject to an aggregate limitation for all judgments or settlements arising from all claims made in any one fiscal year in the amount of $6,000,000 for each health care provider.”
K.S.A. 40-3412(c) provides: “Nothing herein shall be construed to impose any liability in the fund in excess of that specifically provided for herein for negligent failure to settle a claim or for failure to settle a claim in good faith.”
The Commissioner also believes that the garnishment action is barred by K.S.A. 60-723(d), which states:
“All property, funds, credits and indebtedness of the state or of any agency of the state shall be exempt from garnishment, attachment, levy and execution and sale, and no judgment against the state or any agency of the state shall be a charge or lien on any such property, funds, credits or indebtedness.”
The plaintiffs bring this garnishment action as Dr. Shah’s judgment creditors to collect their judgment against Dr. Shah from the Fund. The plaintiffs contend that the Fund is an insurance company created by statute. They assert that the Fund owed Dr. Shah the obligation to handle the plaintiffs’ claims against her in good faith and that the Fund breached this duty. The plaintiffs argue that the provisions of the Act do not prohibit an action for bad faith or negligent failure to settle a claim. The plaintiffs also contend that if K.S.A. 40-3412(c) applies to bar the garnishment action, the statute is unconscionable and unconstitutional. Finally, the plaintiffs assert that K.S.A. 60-723(d) will not bar a garnishment action against the Fund because pursuant to K.S.A. 40-3403(a) the assets held by the Fund are not “state money” but are instead contributions from private providers “held in trust in a segregated fund in the state treasury.”
Dr. Shah, united in interest with plaintiffs for the garnishment action, joined the plaintiffs’ brief in this court. The Kansas Medical Society (KMS) and the Kansas Hospital Association (KHA) were permitted to jointly file an amici curiae brief.
In Kansas, insurance policies are typically considered contracts. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992); Levier v. Koppenheffer, 19 Kan. App. 2d 971, 976, 879 P.2d 40 (1994). A typical contract contains an implied term that the parties will act in good faith. Specifically, an insurance contract contains an implied term that if the insurer assumes the defense of an insured, then the insurer “owes to an insured the duty to act in good faith and without negligence.” Bolinger v. Nuss, 202 Kan. 326, Syl. ¶ 1, 449 P.2d 502 (1969). If the insurer negligently or in bad faith refuses to settle a case within the policy limits, die insurer has breached this implied term in the insurance con tract. Glenn v. Fleming, 247 Kan. 296, 311, 799 P.2d 79 (1990); Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 920, 611 P.2d 149 (1980). Thus, a plaintiff who seeks damages from an insurer under a third-party bad faith action must bring the action as a contract claim. Glenn, 247 Kan. at 311; Spencer, 227 Kan. at 920. Kansas does not allow bad faith actions to be brought in tort. Glenn, 247 Kan. at 311; Spencer, 227 Kan. at 920. Thus, implicit in the discussion of a bad faith breach of contract action is the necessity of a contract.
There may be question's as to whether a contract existed between the Fund and Dr. Shah or whether a mandatory statutory requirement can ever allow for the creation of a contract, but these are not questions which Judge Kelly certified. The first certified question simply asks this court to determine the viability of a bad faith claim against the Fund “in light of the provisions of the Health Care Provider Insurance Availability Act.”
Moreover, the determination of these questions is not necessary to answer the certified questions. Therefore, we assume a contract exists between Dr. Shah and the Fund and proceed to the question of whether there are any provisions in the Act which specifically prevent a plaintiff from bringing a bad faith action against the Fund.
It is helpful to review the basic precepts of statutory construction before addressing the specific statutory provisions which are the basis of the certified question. “It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992).
“Legislative intent is a matter of statutory construction, to be determined in a given case from consideration of the language of the statute in connection with the subject matter of the prohibition, the statute’s manifest purpose and design, and the consequences of the several constructions to which the statute may be susceptible.” State v. Robinson, 239 Kan. 269, 271, 718 F.2d 1313 (1986).
“It is presumed the legislature understood the meaning of the words it used and intended to use them in their ordinary and common meaning. Where 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.” Chavez v. Markham, 256 Kan. 859, Syl. ¶ 2, 889 P.2d 122 (1995).
“ ‘In order to ascertain the legislative intent, 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. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992) (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975]).
The Fund claims there are two provisions in the Act which prohibit the plaintiffs from bringing a bad faith action against the Fund — K.S.A. 40-3403(e) and K.S.A. 40-3412(c).
K.S.A. 40-3403(e) states:
“In no event shall the fund be liable to pay in excess of $3,000,000 pursuant to any one judgment or settlement against airy one health care provider relating to any injury or death arising out of the rendering of or failure to render professional services . . . subject to an aggregate limitation for all judgments or settlements arising from all claims made in any one fiscal year in the amount of $6,000,000 for each health care provider.”
The plaintiffs contend that this provision merely sets a policy limit and is not a limit on bad faith liability. As a policy limit, K.S.A. 40-3403(e) sets $3,000,000 as the maximum amount the Fund is required to pay a malpractice victim when the victim receives a judgment against a health care provider, even if the victim’s judgment exceeds $3,000,000. Plaintiffs base their claim that this section is not intended to address the liability limits for bad faith on the following statutory language — “any one judgment or settlement against any one health care provider relating to any injury or death arising out of the rendering or the failure to render professional services.” (Emphasis added.) K.S.A. 40-3403(e).
Plaintiffs contend that this bad faith action is not pursuant to a judgment against a health care provider relating to injury which arose out of the rendering of professional services. Rather, this bad faith action is a claim against the “insurer” Fund. Moreover, this claim is based on the Fund’s bad faith refusal to settle; it is not based on an injury arising out of the rendering of professional services. Thus, the plaintiffs contend that a bad faith action is a different type of action than a malpractice action and that the bad faith claim should not be limited to the $3,000,000 malpractice insurance policy limit.
In McVay v. Rich, 255 Kan. 371, 377-78, 874 P.2d 641 (1994), the plaintiff’s attempt to make a similar type of argument failed. McVay dealt with interpretation of K.S.A. 65-442(b) and K.S.A. 40-3403(h) (a different subsection of the Act). 255 Kan. at 377. K.S.A. 65-442(b) states as follows:
“There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is an not employee or agent of such medical care facility.”
K.S.A. 40-3403(h) states:
“A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund.”
In McVay, 255 Kan. at 372, the plaintiff, a malpractice victim, sued the hospital in which the malpractice occurred. She argued that she was not suing the hospital based on the doctor’s “rendering of or failure to render professional services” within the defendant/hospital, as the above statutes prohibit this. Rather, she contended that the suit against the defendant/hospital was based on the hospital’s independent negligence in allowing the doctor to practice in the hospital. This court held that the claim was barred by K.S.A. 65-442 and K.S.A. 40-3403. 255 Kan. at 377-78. This court stated:
“The clear, unambiguous language of K.S.A. 65-442(b) and K.S.A. 40-3403(h) requires the conclusion that those statutes bar McVay’s claim against the hospital. McVay’s claim is barred by 65-442(b) because her claim is ‘because of’ [die doctor’s] rendering or failure to render professional services. McVay would have no claim against die hospital if [the doctor] had not negligently treated her . Her claim against the hospital is derivative of and dependent upon her claim against [the doctor].”
“Similarly, McVay’s claim against [the hospital] ‘arise[s] out [die doctor’s] rendering of or the failure to render professional services,’ so it is barred by K.S.A. 40-3403(h).” (Emphasis added). 255 Kan. at 377.
The language of the above statutes and McVay’s attempt to sue the hospital directly are analogous to the plaintiffs’ position in this case. The plaintiffs’ action against the Fund is derivative of and dependent upon their claim against the doctor. This action is not a direct action against the Fund. Rather, it is a garnishment action of the judgment against Dr. Shah. Dr. Shah is a named defendant. If the plaintiffs had not received a judgment against a health care provider (Dr. Shah) relating to an injury arising out of the rendering of professional services, then the plaintiffs would not have this garnishment action against the Fund. Thus, this action against the Fund arises out of a judgment against a health care provider and is capped at $3,000,000 pursuant to K.S.A. 40-3403(e).We are satisfied this was the legislature’s intent in adopting K.S.A. 40-3403(e).
The Fund also contends that K.S.A. 40-3412(c) prohibits the plaintiffs from bringing a bad faith action against the Fund. K.S.A. 40-3412(c) states: “Nothing herein shall be construed to impose any liability in the fund in excess of that specifically provided for herein for negligent failure to settle a claim or for failure to settle a claim in good faith.”
The plaintiffs focus on the language “nothing herein.” They contend the provision does not refer to a common-law bad faith action. Rather, the language of the statute simply makes it clear that the legislature has not created a statutory bad faith action anywhere “herein” the statute. While a statutory bad faith action may be precluded, plaintiffs contend that this does not prevent them from bringing a common-law bad faith action. Thus, according to the plaintiffs, K.S.A. 40-3412(c) does not abrogate a common-law bad faith action against the Fund.
The plaintiffs cite other statutory provisions which contain the language “nothing herein.” K.S.A. 66-231a states: “Notwithstanding the foregoing provisions of this section, nothing herein shall be construed as affecting civil liability of any entity for the maintenance or designation of any railroad crossing.” Judge Kelly interpreted this language as not abrogating common-law claims. Hatfield v. Burlington Northern R. Co., 757 F. Supp. 1198, 1209 (D. Kan. 1991). However, in formulating this interpretation, the court relied on a paragraph which precedes the above-quoted clause in the statute. The preceding paragraph states: “The provisions of this section shall be deemed to provide an additional and alternative method of providing for safety at railroad grade crossings and shall be regarded as supplemental and additional to powers enforced by other state laws.” (Emphasis added.) K.S.A. 66-231a. This paragraph together with the “nothing herein” language made it clear to Judge Kelly that K.S.A. 66-231a did not abrogate common-law claims. K.S.A. 40-3412(c) does not have an analogous preceding paragraph. Thus, it may not be interpreted in a similar manner. Moreover, the Hatfield holding was reversed in Hatfield v. Burlington Northern R. Co., 958 F.2d 320 (10th Cir. 1992). The 10th Circuit did not specifically address Judge Kelly’s interpretation of the “nothing herein” language.
The plaintiffs point to K.S.A. 40-3412(d) and (e), contending that these two provisions are examples of language which does not just preclude the existence of a statutory action but clearly abrogates a common-law action as well. These two provisions state: “The fund shall have no obligations whatsoever for payment for punitive damages.” K.S.A. 40-3412(d). “The fund shall not be liable to pay amounts due from a judgment against an inactive health care provider arising from the rendering of professional services as a health care provider contrary to the provisions of this act.” K.S.A. 40-3412(e).
The above two statutes use different language than K.S.A. 40-3412(c); thus, the plaintiffs contend the statutes must have different interpretations. Boatright v. Kansas Racing Com'n, 251 Kan. 240, 245, 834 P.2d 368 (1992) (“ Tt is presumed . . . that the legislature intended a different meaning when it used different language in the same connection in different parts of the statute.’ ”). According to the plaintiffs, K.S.A. 40-3412(d) and (e) completely abrogate both common-law and statutory liability, while K.S.A. 40-3412(c) simply precludes a statutory action for bad faith against the Fund. It does not abrogate the preexisting common-law duty of the Fund to act in good faith.
Moreover, the plaintiffs contend that the statutes’ legislative history indicates the legislature did not intend to abrogate the Fund’s common-law bad faith liability. As originally enacted, the Fund did not have a policy limit. Without a policy limit, a doctor could never be personally liable for an excess judgment. Without personal liability, a plaintiff could never bring a bad faith action against the Fund. As a result, the plaintiffs contend that the legislature had no need to include a provision which would exempt the Fund from bad faith liability. To interpret K.S.A. 40-3412(c) as exempting the Fund from a common-law bad faith claim — an action which did not exist against the Fund at the time the provision was adopted— is to give the provision a meaningless interpretation. Thus, the plaintiffs argue the legislature must have simply intended for the provision to clarify that the statute itself did not create statutory bad faith liability.
The defendant counters by claiming that the Act was originally proposed with a policy limit. With this initial policy limit, common-law bad faith claims would have been possible. Thus, K.S.A. 40-3412(c) was originally intended to prevent common-law bad faith claims. During the legislative process, the policy limit was removed, but the intent of K.S.A. 40-3412(c) — to abrogate common-law bad faith claims against the Fund — remained intact. Therefore, when the policy limit was reinstated, and bad faith claims against the Fund became a possibility, K.S.A. 40-3412(c) exempted the Fund from common-law bad faith liability as it was originally intended to do. We agree with the defendant’s analysis of the legislative history of K.S.A. 40-3412(c).
Plaintiffs make other arguments as to why we should find the Fund liable for bad faith or negligent failure to settle, even though we hold that the legislative intent was to cap liability at $3,000,000. First, they contend that estoppel or the law of the case doctrine requires This court to hold the Fund liable for bad faith just as any private insurance company is held liable for bad faith. The plaintiffs also contend that K.S.A. 40-3412(c) is an unconscionable contract term and that it violates due process and equal protection.
Estoppel and law of the case
Relying on Frevele v. McAloon, 222 Kan. 295, 301, 564 P.2d 508 (1977), the plaintiffs point out that admissions of a party are bind ing. According to the plaintiffs, the Fund has admitted or represented many times to the public and to this court that it is just like a commercial insurance company and that it should be treated as such. For instance, in the Fund’s intervenor brief for Harrison v. Long, 241 Kan. 174, 734 P.2d 1155 (1987), the Fund stated: “The Fund should be treated just as would any excess insurer.” It also stated: “[T]he Fund has the same power and authority to settle claims as would a private insurer.” Furthermore, the Fund declared in this same brief: “[T]he statutory scheme gives the Fund the rights and duties comparable to other excess insurers.” Thus, according to the plaintiffs, the Fund should now be estopped from claiming that it is not like a commercial insurance company when it comes to bad faith liability.
Neither the Fund nor the court, however, have ever said that the Fund should be treated like a commercial insurance company in all respects. For instance, the Fund’s amicus curiae brief in Hudgens v. CNA/Continental Cas. Co., 252 Kan. 478, 845 P.2d 694 (1993), stated: “Although a creature of statute, in many respects the Fund functions like a traditional excess liability carrier.” (Emphasis added.) Furthermore, this court has acknowledged in a few cases that the Fund is not identical to a commercial insurance company. For instance, in Todd v. Kelly, 251 Kan. at 525, this court stated: “Although the Fund is not a private insurance company, we have repeatedly recognized that the entire scheme of the Act and the liability of the Fund are based upon the concept of commercial liability insurance.” (Emphasis added.)
Moreover, the defendant argues that even if the Fund had declared in a prior case, “We are liable for bad faith,” this statement could not create estoppel unless the parties were identical in the prior suit. See Reno v. Beckett, 555 F.2d 757, 770 (10th Cir. 1977). In most cases in which the Fund compared itself to a commercial insurance company, the statements were not made in a case with parties identical to the parties in this case. Thus, the statements may not be used to create judicial estoppel in this case. 555 F.2d at 770. However, in Todd v. Kelly, 251 Kan. 512, the parties were identical to the parties here. In Todd v. Kelly, the Fund claimed it was similar to a private insurance company. The court noted, how ever, that there are some distinctions between the Fund and a private insurance company. 512 Kan. at 525 (“Although the Fund is not a private insurance company . . . .”) One of the ways in which the Fund is not a private insurance company is that the Fund is immune from bad faith liability. Thus, even though the parties were identical in a prior case, neither the Fund nor the court made statements equating the Fund to a private insurance company so as to indicate estoppel. Estoppel is not appropriate in this case.
Further, the plaintiffs claim the law of the case doctrine controls because the Fund made statements earlier in Todd v. Kelly which equated it with a commercial insurance company. The law of the case doctrine does not apply in this case for the same reasons that estoppel does not apply. The Fund did not say in Todd v. Kelly that it was subject to bad faith liability. Rather, the Fund simply argued that it should be treated like a commercial insurance company in regards to the posting of an appeal bond. Todd v. Kelly does not state that the Fund should be treated like a commercial insurance company in all respects. See 251 Kan. at 525. Thus, the law of the case doctrine is not appropriate in this case.
Unconscionable Contract Term
The plaintiffs ask this court to assume that the Act created an insurance contract between Dr. Shah and the Fund and that K.S.A. 40-3412(c) is a “term” of this insurance contract. As a term of the insurance contract between Dr. Shah and the Fund, K.S.A. 40-3412(c) prohibits the insured from suing the Fund for bad faith. The plaintiffs claim this type of contract term is unconscionable.
According to the plaintiffs, the term is unconscionable because the Fund has an unequal bargaining position over Dr. Shah. At the time of this action, the Fund was a state-sanctioned excess insurance monopoly. Dr. Shah was required to accept the insurance policy contract on a take it or leave it basis. If she did not accept the insurance contract, she would not have been able to practice medicine in Kansas. See K.S.A. 40-3402(a). Moreover, the plaintiffs reason the term is unconscionable because Dr. Shah, as a party to the contract, did not understand that K.S.A. 40-3412(c) exempted the Fund from bad faith liability. Finally, the plaintiffs contend the contract term is unconscionable because it deprived Dr. Shah of the common-law remedies to sue the Fund for bad faith without expressly stating so.
In rebuttal, the Fund claims K.S.A. 40-3412(c) is not an unconscionable contract term because it is not a contract term at all. Moreover, the Fund contends the Act does not statutorily create an insurance contract between the Dr. Shah and the Fund in the first place.
Assuming the Act creates an insurance contract between Dr. Shah and the Fund, this does not mean K.S.A. 40-3412(c) is a term of such contract. K.S.A. 40-3412(c) is simply a statutory provision which overrides any contract which may exist. However, even assuming a contract exists and that K.S.A. 40-3412(c) has become a term of such contract, this term is not unconscionable. The plaintiffs contend that the Fund had an unequal bargaining position over Dr. Shah. This is incorrect. While Dr. Shah was required to obtain excess insurance on a take it or leave it basis from the Fund, this does not mean she was in an unequal bargaining position. Dr. Shah received $3,000,000 worth of excess malpractice coverage regardless of her risk factor in return for the condition that she not sue the Fund for bad faith.
Plus, even if Dr. Shah was in an unequal bargaining position with the Fund, such an unequal bargaining position alone is not enough to find a contract term unconscionable. For a contract term to be unconscionable, there must be some type of deceptive practice associated with the term. Hawes v. Kansas Farm Bureau, 238 Kan. 404, 406, 710 P.2d 1312 (1985); Wille v. Southwestern Bell Tel Co., 219 Kan. 755, 759, 549 P.2d 903 (1976). There were no deceptive practices associated with the inclusion of K.S.A. 40-3412(c) in the insurance contract. A contract is only unconscionable if it is so unfair that it shocks the conscience of the court. Although the language in K.S.A. 40-3412(c) may not be the picture of clarity, Dr. Shah is a doctor who should have some knowledge and experience with malpractice insurance. See Adams v. John Deere Co., 13 Kan. App. 2d 489, 497, 774 P.2d 355 (1989) (contract signed by businessman with 40 years of experience was a factor in finding the clause was not unconscionable). For the above-stated reasons, we find that K.S.A. 40-3412(c) does not create unconscionable contract term.
Due Process
Next, the plaintiffs contend that if K.S.A. 40-3412(c) immunizes the Fund from bad faith liability, the provision should be struck down as a violation of the Due Process Clause of the Kansas Constitution.
The Due Process Clause of the Kansas Constitution, Section 18 of the Kansas Constitution Bill of Rights, states: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” This provision guarantees that each person whose property has been injured will receive a remedy. Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 375, 892 P.2d 497 (1995).
The plaintiffs contend that their right to bring a bad faith action against the Fund is a remedy for the injury which Dr. Shah and plaintiffs suffered as a result of the Fund’s action. K.S.A. 40-3412(c) does not allow the plaintiffs or Dr. Shah to bring a bad faith action against the Fund. Thus, according to the plaintiffs, K.S.A. 40-3412(c) strips Dr. Shah and the plaintiffs of a remedy against the Fund for the injury it caused them, thereby violating Section 18.
However, even if a remedy protected by Section 18 is modified or abrogated by the legislature, such change is constitutional if “the change is reasonably necessary in the public interest to promote the general welfare of the people of the state,” Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974), and the legislature provides an adequate substitute remedy or quid pro quo to replace the vested common-law remedy which has been modified. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 358, 789 P.2d 541 (1990).
The first question is whether there is a significant public interest to justify an abrogation of this bad faith remedy against the Fund. In Manzanares, the court addressed the constitutionality of the No-Fault Insurance Act. The no-fault act modified a common-law tort remedy by limiting one’s right to recover nonpecuniary losses for pain and suffering. 214 Kan. at 601. The legislature was attempting to “insure prompt compensation to accident victims injured in the operation or use of a motor vehicle.” Manzanares, 214 Kan. at 601. Moreover, the legislature was concerned with the overall economic burden placed on the state and its citizens by accident victims who are not compensated or who are forced to resort to litigation to attain compensation. Thus, this court found that the modification of tort liability was valid because it was justified by legitimate public policy interests. 214 Kan. at 608.
The Kansas Legislature had similar concerns when it passed the Health Care Provider Insurance Availability Act. Mandatory malpractice insurance guarantees that malpractice plaintiffs will be able to recover at least some of their judgment against the negligent doctor. Moreover, the legislature immunized the Fund from bad faith claims in hopes that this would keep the Fund surcharge reasonably low. The legislators saw available medical malpractice insurance with reasonably low surcharges as a way to encourage health care providers to practice in Kansas. Stephens v. Snyder Clinic Ass'n, 230 Kan. 115, 130, 631 P.2d 222 (1981). Thus, the legislature was concerned with the overall economic burden placed on the state and its citizens by allowing a health care provider to bring a bad faith claim against the Fund. Immunization of the Fund from bad faith claims under K.S.A. 40-3412(c) is necessary “to promote the general welfare of the people of the state.” See Manzanares, 214 Kan. at 599.
However, even if the modification of a common-law remedy is consistent with public policy, this does not necessarily satisfy the due process concerns. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy, such as a bad faith claim, is modified or abolished. Jenkins v. Amchem Products, Inc., 256 Kan. 602, 628, 886 P.2d 869 (1994), cert. denied _ U.S. _ (October 5, 1995).
A quick review of a few cases in which this court has discussed whether the legislature provided an adequate quid pro quo for the abrogation of a remedy is helpful. The Manzanares court found that the No-Fault Insurance Act’s “prompt, efficient payment of certain economic losses” to accident victims was an adequate sub stitute remedy for the modification of nonpecuniary remedies. 214 Kan. at 599. Furthermore, the mandatory availability of no-fault insurance was found to be an adequate substitute remedy even though the injured party was required to purchase the insurance himself or herself. 214 Kan. at 599.
In Rajala v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983), the court found that a reduced burden of proof was an adequate substitute remedy for the abrogation of workers’ common-law remedy to sue employers for work-related injuries. Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991), found that the mandatory Fund coverage was an adequate quid pro quo for the modification of the vicarious liability remedy. In Samsel, 246 Kan. 336, the right to recover more that $250,000 in noneconomic damages was abolished. The court found the legislature provided a quid pro quo in that a district judge could not remit damages to less than $250,000 when the jury awarded damages in excess of $250,000. 246 Kan. at 362.
Here, the health care provider has been deprived of the remedy to recover any damages from the Fund for bad faith breach of contract. The defendant contends that the quid pro quo for abrogation of this remedy is that the health care provider is automatically accepted for primary and excess insurance coverage regardless of his or her risk level. Although the doctor is required to pay for such coverage and the coverage may be canceled by the Fund, this automatic coverage is an adequate quid pro quo. See Bair, 248 Kan. at 844. Moreover, the Fund’s immunity from bad faith helps keep the Fund’s surcharges reasonably low. These low surcharges also qualify as a quid pro quo for Dr. Shah’s loss of remedy to bring a bad faith action against the Fund.
K.S.A. 40-3412(c) also strips Dr. Shah’s judgment creditors, the plaintiffs in this case, of the remedy to go against Dr. Shah’s contract-creditor, the Fund. However, the legislature provided a quid pro quo in that the judgment creditor/plaintiff is guaranteed that all health care providers in the state will have primary insurance coverage plus at least $3,000,000 in excess malpractice insurance coverage. Thus, the medical malpractice victim is guaranteed to recover at least a part of his or her judgment against a negligent health care provider. Without the Act, the plaintiffs might have received no recovery whatsoever. An adequate quid pro quo has been provided, and K.S.A. 40-3412(c) does not violate the Due Process Clause of the Kansas Bill of Rights.
Equal Protection
Finally, plaintiffs claim that if K.S.A. 40-3412(c) prohibits bad faith claims against the Fund, then the provision violates the Equal Protection Clause of the Kansas Constitution. The principal of equal protection is embodied in Section 1 of the Kansas Constitution Bill of Rights, which states: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The plaintiffs argue that K.S.A. 40-3412(c) treats health care provider insureds and their judgment creditors differently from any other insureds and judgment creditors. For example, typical commercial insureds or their judgment creditors may bring a bad faith claim against an insurer who refused to settle the insured’s policy in bad faith. Yet K.S.A. 40-3412(c) does not allow health care provider insureds or their judgment creditors to bring a bad faith claim against their insurer, the Fund.
The defendant concedes that K.S.A. 40-3412(c) does treat health care provider insureds and their judgment creditors differently from other insureds and judgment creditors. However, the defendant points out that equal protection is only implicated when a statute treats “arguably indistinguishable” classes of people differently. The defendant contends that health care provider insureds are not “arguably indistinguishable” from typical insureds. See Smith v. Printup, 254 Kan. 315, 321-22, 866 P.2d 985 (1993).
In Printup, the court analyzed whether K.S.A. 60-3701 violated equal protection. K.S.A. 60-3701 allows the court to determine the amount of the punitive damages which should be awarded once the factfinder has determined that they should be allowed. K.S.A. 60-3701 treats tort victims seeking punitive damages differently than it treats tort victims who are not seeking punitive damages. This court found these two groups are not “arguably indistinguishable.” 254 Kan. at 321. This court based its distinction on the fact the law has always “treated the victims of particularly egregious conduct differently from other tort victims.” 254 Kan. at 322. However, this rationale does not apply to health care provider insureds or their judgment creditors. This court has consistently treated health care provider insureds and the Fund similar to other insureds and insurers. See Todd v. Kelly, 251 Kan. at 525-26; Harrison v. Long, 241 Kan. at 180-82. Thus, health care provider' insureds and their judgment creditors should be treated as “arguably indistinguishable” from other insureds and their judgment creditors.
If so, then K.S.A. 40-3412(c) implicates equal protection. It treats health care provider insureds and their judgment creditors differently from most other insureds or their judgment creditors who may bring bad faith claims against an insurer. This court has enunciated three different standards which may be used in determining if a statute violates equal protection — rational basis, heightened scrutiny, and strict scrutiny. Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987).
This court has traditionally treated malpractice legislation as economic regulation in which the rational basis test is applied. Bair, 248 Kan. at 831 (abrogation of vicarious liability between health care providers if they are both covered by the Act); Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (cap on nonpecuniary damages in wrongful death actions); Stephens, 230 Kan. at 130 (shortened statute of limitations in medical malpractice cases). Thus, the rational basis test is the appropriate standard to apply.
Leiker, 245 Kan. at 363-64, explains this “rational basis” test, also known as the “reasonable basis” test, as follows:
“The ‘reasonable basis’ test is violated only if the statutory classification rests on-grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory.discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
Thus, under the rational basis test, if the Fund can show any facts which reasonably justify discrimination between health care provider insureds and all other insureds, then K.S.A. 40-3412(c) does not violate the Equal Protection Clause. See Leiker, 245 Kan. at 364; State ex rel. Schneider v. Liggett, 223 Kan. 610, 620, 576 P.2d 221 (1978). The espoused purpose of the Act is to help health care providers procure available and affordable medical malpractice insurance. Such insurance will lure doctors to practice in Kansas so that the citizenry will have quality health care available. Liggett, 223 Kan. at 611.
The Fund requires all the health care providers in Kansas to purchase excess medical malpractice insurance from it. Should the Fund be liable for bad faith judgments, it may be forced to increase the surcharges which all health care providers in Kansas are required to pay. Thus, bad faith claims against the Fund would increase the cost of malpractice insurance for all Kansas health care providers. As a result, health care providers may choose to practice elsewhere, leaving Kansas citizens without available health care. Consequently, the Fund’s immunity from bad faith claims is rationally related to the State’s interest in keeping malpractice rates low so that health cate providers will practice in Kansas. Moreover, the Fund’s immunity from bad faith claims is rationally related to the State’s interest in keeping the Fund economically viable so a medical malpractice victim is guaranteed to recover at least a part of his or her judgment against a negligent health care provider.
The plaintiffs claim that immunity from bad faith claims will not keep doctors in the state. Rather, if doctors are aware that the Fund could expose them to large personal liability, then doctors will leave the state rather than be forced to pay for insurance which does not really insure them. While the plaintiffs’ argtiment may be factually and logically true, it is irrelevant. The State has supported its unequal treatment of arguably indistinguishable parties with some facts that demonstrate the unequal treatment is rationally related to a legitimate State interest. See Leiker, 245 Kan. at 363-64. It is not the court’s place to second-guess the legislature.
Furthermore, the plaintiffs argue that “cutting costs” is not a legitimate State interest and thus the rational basis test has not beeii met. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 780-81, 830 P.2d 41 (1992). If the State’s interest behind K.S.A. 40-3412(c) were simply to cut the insurance costs of the Fund, then certainly these would not be legitimate State interests. Yet, the purpose behind the legislature’s desire to cut the costs of medical malpractice insurance is to lure health care providers to the state so that quality health care will be available to Kansas citizens and to insure that at least a reasonable amount of malpractice insurance is available to protect the vast majority of malpractice victims. These are legitimate State interests, and the abrogation of bad faith claims against the Fund is rationally related to these interests.
Finally, the plaintiffs rely heavily on Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979). In Flax, the plaintiff challenged K.S.A. 46-901 as a violation of equal protection. The statute granted immunity to the Kansas Turnpike Authority (KTA) for liability resulting from injuries which occurred as a result of highway defects. However, towns, cities, and counties which owned highways and roads were not granted such immunity. 226 Kan. at 6-7. While this fact situation is analogous to the one at issue, the justifications for the statutes are different.
In Flax, the State offered three interests to justify the statute. These interests included: (1) protecting the state treasury, (2) saving time and energy consumed in legal actions, and (3) protecting the KTA from high-risk activities. 226 Kan. at 10. The Flax court found these interests were not legitimate State interests, and thus unequal treatment based on these interests was a violation of equal protection. On the other hand, as explained above, the State’s interests behind the Fund’s immunity from bad faith claims are legitimate State interests. See Stephens v. Snyder Clinic Ass'n, 230 Kan. at 130. Thus, K.S.A. 40-3412(c) is rationally related to legitimate State interests, and it does not violate equal protection.
The answers to the certified questions are: (1) Kansas law does not recognize a claim of bad faith against the Health Care Stabilization Fund for a judgment in excess of the Fund’s statutory limit of liability, and (2) as a result of the answer to question 1, whether a plaintiff holding the excess judgment may prosecute such a bad faith action against the Fund by way of garnishment in light of K.S.A. 60-723(d) is moot. | [
-48,
-20,
-3,
95,
8,
-32,
34,
10,
97,
-93,
103,
83,
-83,
-58,
-123,
111,
-78,
61,
64,
32,
71,
-73,
23,
-55,
-46,
-2,
-5,
-43,
-80,
95,
-26,
-1,
72,
112,
10,
-43,
102,
-62,
-51,
28,
-62,
-114,
-120,
-8,
93,
-32,
32,
107,
54,
3,
112,
31,
-13,
48,
56,
103,
-19,
42,
91,
-87,
64,
-79,
-120,
-123,
127,
17,
-95,
-124,
-100,
67,
-48,
58,
-112,
-80,
8,
-20,
114,
-90,
-126,
116,
111,
-99,
5,
100,
102,
49,
0,
-28,
124,
-68,
47,
-115,
15,
-26,
-109,
72,
120,
13,
-73,
-104,
124,
20,
-113,
-8,
-1,
85,
95,
108,
3,
-118,
-48,
-79,
-49,
119,
88,
-53,
-17,
-125,
-80,
65,
-52,
-78,
94,
71,
62,
-73,
126,
-74
]
|
The opinion of the court was delivered by
Lockett, J.:
The residuary beneficiaries of a will appeal the district court’s denial of their claim that the will was ambiguous and, therefore, that the doctrine of equitable apportionment required the estate and inheritance taxes to be apportioned over the entire gross estate. This case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
On October 4, 1992, Maria Slade Cline died testate in Kansas City, Missouri. Cline’s will, which was executed in Kansas in August 1982, contains specific bequests of real and personal property and provides that the residue of her estate be distributed to her son, John May. In the event her son failed to survive her, the residue of her estate was to be distributed in equal shares to her son’s widow, JoAnn May, and his two daughters, Kristina May Paquette and Karin May Walz (the residuary beneficiaries).
Maria Cline’s will also exercised the power of appointment of a marital deduction trust established by the will of Cline’s predeceased husband, Neil Cline. Neil Cline’s will, although not a part of the record on appeal, established two trusts, a marital deduction trust and a nonmarital trust. A marital deduction trust is “a trust, either living or testamentary, which gives the spouse the income for life and a power of appointment, with terms that qualify the property for the marital deduction.” 76 Am. Jur. 2d, Trusts § 11, p. 41.
Maria Cline’s will directs that one-fifth of the principal and undistributed income in the trust be distributed to John May. In the event John May failed to survive Cline, the will provides that his one-fifth share be distributed in equal shares to the residuary beneficiaries. The will further provides that the remaining four-fifths of the principal and undistributed income in the trust be distributed in one-fifth shares to parties unrelated to the decedent.
Maria Cline’s will also provides that Maria’s son, John May, be appointed executor. In the event John May predeceased his mother or was unwilling to act as executor, the will appointed The Security Bank of Kansas City (the Bank) as successor executor. John May predeceased his mother. On January 8, 1993, the Bank filed a petition for the probate of Cline's will. An order admitting Cline’s will to probate and naming the Bank as the executor of the estate of Maria Slade Cline was filed on February 8, 1993. The inventory and valuation of Cline’s residual estate consisted of approximately $843,000 in stocks, bonds, mortgages, notes, and cash. The trust assets over which Cline held the power of appointment were worth approximately $1.5 million. The Bank was also the trustee of the trust established by the will of Cline’s predeceased husband.
On July 7, 1993, based on its interpretation of Article I of the will, the Bank paid $639,431.67 in federal estate taxes and $126,746.64 in state inheritance taxes generated by the property passing under Cline’s will and the trust out of Cline’s residuary estate. No notice of the payment of the inheritance and estate taxes was given to the beneficiaries of Cline’s estate.
On August 25, 1993, the residuary beneficiaries of Cline’s will filed a petition in Wyandotte District Court to interpret the will and apportion the inheritance and estate taxes over the entire gross estate. A copy of the petition was served on the attorney for the Bank and each of the beneficiaries of the trust. No written response was filed.
At a hearing on September 14, 1993, the Bank stated that the taxes were paid from the residue of the estate as required by Article I of the will. The residuary beneficiaries argued that the gross estate, including the trust assets over which Cline held the power of appointment, should bear the burden of the taxes in proportion to how the property generated the taxes. Article I of Cline’s will provides:
“All estate, inheritance, legacy, succession, excise or transfer taxes (including any interest and penalties thereon) imposed by any domestic or foreign laws with respect to all property taxable under such laws by reason of my death, whether or not such property passes under this my will or otherwise and whether such taxes be payable by my estate or by any recipient of any such property, shall be paid by my Executor out of my general estate as part of the expense of the administration thereof with no right of reimbursement from any recipient of any such property.”
The court denied the petition.
On December 17, 1993, the residuary beneficiaries filed a motion for reconsideration or, in the alternative, a new trial. After a hearing, the court denied the motion. The residuary beneficiaries appeal both the denial of their petition and their motion for reconsideration or new trial. The residuary beneficiaries contend that Cline’s will is ambiguous because it does not clearly state an intention that the entire estate and inheritance taxes be paid out of her residuary estate. They argue that the court failed to apply the doctrine of equitable apportionment under which the assets in the trust (over which Cline exercised her power of appointment) would bear a proportionate tax burden. The Bank asserts that Article I of Cline’s will directing the payment of all estate, inheritance, legacy, succession, excise, or transfer taxes from “my general estate” was a clear and unambiguous expression of Cline’s intent that the taxes be paid out of her residuary estate.
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. In re Estate of Pickrell, 248 Kan. 247, Syl. ¶ 1, 806 P.2d 1007 (1991). Where a court, either trial or appellate, is called upon to determine the force and effect to be given terms of a will, the court’s first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require employment of rules of judicial construction to determine its force and effect. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979); In re Estate of Reynold, 173 Kan. 102, 104, 244 P.2d 234 (1952). Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 2. In the interpretation of wills, the primary function of the court is to ascertain the testator’s intent from the four comers of the will and to carry out that intent if possible and not contrary to law or public policy. 226 Kan. 97, Syl. ¶ 3.
The parties agree that the estate and inheritance taxes generated as a result of Cline’s death are governed by the law of Missouri. See K.S.A. 59-806(a)(6) (providing that nothing in act regarding estates of nonresidents shall affect determination of the ultimate burden of estate or inheritance taxes imposed by reason of death of a nonresident decedent). The parties further agree that if the will is ambiguous, Missouri requires that the rule of equitable apportionment be applied. In re Estate of Wahlin, 505 S.W.2d 99, 112 (Mo. App. 1973).
The judicial doctrine of equitable apportionment springs from equitable principles and, by the very nature of its source, stands for the proposition that only property which generates the federal estate tax, whether probate or nonprobate, shall bear the burden of the tax, absent statutory direction otherwise (there being none in Missouri) or a “clearly expressed intention” to the contrary on the part of the testator. 505 S.W.2d at 112.
No Kansas cases interpreting the phrase “my general estate” as used in Article I of the will are cited. The parties cite numerous cases outside Kansas for authority. A line of New York cases is informative. See Matter of Schuchman, 51 Misc. 2d 541, 542, 273 N.Y.S.2d 548 (1966) (direction to pay all estate taxes out of the “general estate” equated with the residuaiy estate so that estate taxes attributable to pre-residuary bequests were payable from the residuary estate; “[i]f the tax clause is to have any significance whatsoever, the reference to ‘general estate’ has meaning only if equated with ‘residuary estate’ ”); Matter of Ganter, 46 Misc. 2d 518, 521, 260 N.Y.S.2d 139 (1965) (where testator’s will provided for certain bequests free of inheritance, succession, or transfer taxes and that such taxes be paid from the testator’s “general estate,” portion of tax normally apportionable to pre-residuary bequests would be paid by the residuary estate); In re Whitmans Estate, 125 N.Y.S.2d 165, 168 (1953) (will provision directing that all taxes imposed on estate be paid out of testator’s “general estate” before distribution interpreted to mean “residuary estate”; taxes due upon specific devise of one-third of all testator’s property to his widow would be imposed upon residuary estate); Matter of Becher, 204 Misc. 523, 534, 123 N.Y.S.2d 589 (1953) (where testator had provided in will that estate or inheritance taxes imposed against legacies should be paid from “general estate,” quoted term meant residuary estate, and testator intended testamentary benefits to be exonerated from taxes but not to vary statutory rule of apportionment concerning nontestamentary property, and, therefore, nontestamentary property would bear its pro rata share of taxes); Matter of Bayne, 31 Misc. 2d 296, 102 N.Y.S.2d 525 (1950) (where decedent directed that all transfer, succession, or inheritance taxes which might accrue in any jurisdiction be paid out of his “general estate,” quoted words meant his “residuary estate”); Matter of Reid, 193 Misc. 154, 155-56, 79 N.Y.S.2d 248 (1948) (under will directing that all inheritance taxes levied against estate or legacies, life estates, annuity, and devises set forth in will be paid out of “general estate,” testator used general estate as- meaning residuary estate and under such direction, all federal estate taxes on non-testamentary benefits as well as benefits passing under will were payable out of residuary estate and were not apportionable); In re Chambers’ Estate, 54 N.Y.S.2d 88, 90 (1945) (in will requiring estate taxes to be paid out of general estate, “general estate” referred to “residuary estate” remaining after gift of personalty and use of realty to testator s wife, and hence gift to wife was exempt from contribution to estate taxes and interest thereon); In re Pflomm, 241 N.Y. 513, 150 N.E. 534 (1925) (will giving residue to trustees with direction to pay one-half of net income to testator s widow for life free of any tax or charge whatsoever, which; if any, shall be paid out of the “general estate” held to manifest intention that such parts of federal and state income taxes as are assessed against widow by reason of her receipt of such income should be apportioned and paid out of entire net income of trust estate); Matter of Johnson, 214 App. Div. 1, 5, 211 N.Y.S. 276 (1925) (under will directing trustees to pay one-half of net income of residuary trust to widow for life, free of any tax, “which, if any, shall be borne and paid out of my general estate,” “balance” of net income to be paid to testator s two children equally and income taxes on widow’s income were payable out of net income remaining after paying widow’s half of net income, and not out of capital of trust; “general estate” intended to mean “net income” notwithstanding same words were used in subsequent paragraph to mean gross or entire estate); Matter of John B. Trevor, 119 Misc. 277, 282-84, 196 N.Y.S. 152 (1922) (under will directing executors to pay the ex penses of the upkeep of the homestead out of the general estate, and providing that no part should be charged against the wife’s income, or the principal of the share of any child, the last provision did not limit the general power to pay such expenses out of the “general estate,” which comprehended all property passing under the will after the payment of debts, funeral expenses, and administration charges).
The parties direct the court to Estate of Nesbitt, 158 Cal. App. 2d 630, 323 P.2d 474 (1958), in which a California District Court of Appeal construed the meaning of the testatrix’ will directing the executor to pay, out of her “general estate,” all her just debts and funeral expenses and all federal and state estate and inheritance taxes. The California court stated: “By the term 'general estate’ the testatrix undoubtedly meant the residue of her estate which remained after the devise and the specific and general bequests.” 323 P.2d at 476.
Two cases, not cited by the parties, provide further insight. In Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S.W.2d 994 (1943), the Tennessee Supreme Court held that the term “general estate,” as used in a will provision directing inheritance and estate taxes to be paid out of the general estate, would be construed as intending to charge payment of the taxes to undevised realty and personalty, i.e., the residuary estate. 179 Tenn. at 572.
In the case of Shipley's Estate (No. 2), 337 Pa. 580, 12 A.2d 347 (1940), the Pennsylvania Supreme Court held that where the testatrix in one paragraph of her will provided for the payment of all debts, funeral expenses, taxes, and legacies out of her “general estate,” and in a separate paragraph disposed of her residuary estate “including all property and estate over which I may have any power of appointment,” the words “general estate” did not include the testatrix’s appointive estate and the pecuniary legatees had no interest in it. The court stated:
“We find no warrant whatever for accepting the argument of appellants that the phrase ‘general estate’ as used in the first paragraph of the wiE meant something other than the nonappointive estate. The phrase ‘general estate’ is customarily used as meaning the entire estate held by a person in his individual capacity. If he holds property in some other capacity, such as, e.g., a trustee, or if he has the testamentary power to dispose of some other property by appointment, that other property is not a party of his ‘general estate.’ ” 337 Pa. at 583.
The court thus held that where the general estate was insufficient for the purpose of payment of all debts, funeral expenses, taxes, and legacies, the pecuniary legatees had no interest in the appointive estate. 337 Pa. at 587.
The Bank claims that Whitbeck v. Aldrich, 341 Mass. 326, 169 N.E.2d 882 (1960), is a factually similar case and correctly states the general rule. In that case, the testatrix’ will provided that
“[a]ll estate, inheritance, legacy, succession or transfer taxes . . . imposed by any domestic or foreign laws now or hereafter in force with respect to all property taxable under such laws by reason of my death whether or not such property passes under this will and whether such taxes be payable by my estate or by any recipient of any such property, shall be paid by my executor out of my general estate . . . with no right of reimbursement from any recipient of any such property.”
At issue in that appeal was whether the federal estate tax on the testatrix’ estate, including the trust property over which she exercised a power of appointment, was a charge against the trust property. The testatrix’ gross estate amounted to approximately $67,400. The value of the property over which she had a power of appointment under her husband’s will was approximately $171,837. The federal estate tax on the gross estate, inclusive of the value of the appointed property, was estimated at approximately $39,700. The federal tax on die testatrix’ estate, excluding die appointed property, was less than $200. The court noted that although the estate would not be insolvent if the larger federal tax were paid, the provisions of the testatrix’ will could not be fully carried out; there would be insufficient funds to pay two pecuniary legacies in full and no funds for the trust created for the benefit of testatrix’ sister. 341 Mass. at 328-29.
The Massachusetts Supreme Court held that the federal estate tax on the entire estate, including property over which the testatrix exercised a power of appointment, was a charge solely against her general or probate estate and not a charge on trust property, despite the fact that there would be insufficient funds to pay two pecuniary legacies in full and no funds for a trust created for the benefit of the testatrix’ sister. The court stated:
“It is hard to think of plainer or more inclusive words. ‘[A]ll property taxable . ■. . by reason of . . :'[the testatrix’] death’ includes more than [the testatrix’] property. The provision expressly applies to property not passing under [the testatrix’] will, that is, in present relevance, to property appointed by her. . . .
“Nothing in [the testatrix’] will itself shows that die words in the tax clause were not used in their ordinary sense. We may not depart from that sense to give effect to what may be guessed was her intention. [Citations omitted.] ‘It cannot be presumed that anything else was intended tiran what is stated in the written instrument. It may be, for aught that now can be known, that the precise result which has happened was intended. There is no jurisdiction in equity to prescribe what may seem fairer than the ° ° ° testator has declared.’ [Citations omitted.] There being no ambiguity in the will, there is no occasion to go outside it in a search for its meaning. [Citation omitted.] Extraneous matters cannot be used to create an ambiguity not manifested in the will. [Citation omitted.]” 341 Mass, at 328-29.
Here the residuary beneficiaries, in an attempt to prove the terms of the will ambiguous, provide this court with definitions of the words “general,” “general estate,” “individual capacity,” and “held” or “hold.” The residuary beneficiaries’ brief then states that in light of the definitions,
“the term ‘general estate’ could within the common meaning of the phrase and its components include property over which the testatrix held a power of appointment. Certainly, one could conclude that there is at least a question as to what should be included within the phrase ‘general estate’ and in that instance the doctrine of equitable apportionment would mandate that it include the gross estate.”
The Bank responds that it is inappropriate for the residuary beneficiaries to take the word “general” out of context and suggest that this single word creates a different meaning other than the clearly expressed intent of the testatrix.
Reviewing Cline’s will, it is noteworthy that the phrase “my general estate” is used in Article I, directing payment of taxes, and the term “my residuary estate” is used 13 times throughout the remainder of Cline’s will. Neither party addresses this fact. The same words are ordinarily to be given same meaning in one part of the will as in other parts; where different words are used in separate parts of the will, the context of the will may clearly indicate that testator gave the different words used in separate parts of the will the same meaning.
It is noteworthy that Cline’s will does not restrict payment of taxes to only those items passing through “my estate,” but instead expressly applies to all property taxable by reason of her death, whether or not such property passes under her will or otherwise and whether such taxes be payable by her estate or by any recipient of any such property. Moreover, Cline’s will directs that the taxes be paid out of her general estate “as a part of the expense of the administration thereof.” The language in Cline’s will states an intention to exonerate all property passing as a result of Cline’s death and that the taxes be paid out of her estate.
The language of a will is clear, definite, and unambiguous; therefore, we refrain from consideration of the rules of judicial construction to further analyze the intent of the testatrix. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 2. The term “general estate” in the will provision directing that all taxes imposed by reason of her death, whether or not such property passes under the will or otherwise, should be paid out of the testatrix’ “general estate,” means that the taxes due by reason of the testatrix’ death are to be imposed on the residuary estate.
When interpreting a will, the primary function of the court is to ascertain the testator’s intent from the four comers of the will and to carry out that intent if possible and not contrary to law or public policy. If Article I of Cline’s will was interpreted as residuary beneficiaries suggest, the tax exoneration clause in Article I becomes meaningless.
Findings of Fact and Conclusions of Law
The residuary beneficiaries further contend that the trial court failed to enter written findings of fact and conclusions of law that adequately support its decision that the taxes should be paid out of the residuary estate. The Bank asserts that the trial court ruled on the residuary beneficiaries’ petition based on the court record; that the court invited the participation of counsel in creating the findings of fact that were read into the record at the hearing; and that the residuary beneficiaries cannot now complain that there are no written findings of fact when the court directed counsel to submit further findings if they desired.
“The requirements of K.S.A. 60-252 and Supreme Court Rule No. 116 (214 Kan. xxxvii) [currently at Rule 165 (1994 Kan. Ct. R. Annot. 169)], concerning statements by the district court of controlling facts and legal principles controlling its decision, are for the benefit of this court in facilitating appellate review and may not be waived by the district court or by the parties to the action.” Henrickson v. Drotts, 219 Kan. 435, Syl. ¶ 2, 548 P.2d 465 (1976). “ ‘ “[W]hen the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court.” ’ [Citations omitted.]” DeWerff v. Schartz, 12 Kan. App. 2d 553, 559, 751 P.2d 1047 (1988).
The residuary beneficiaries fail to cite any case law or statutory authority for their assertion that the trial court was required to enter further written findings of fact and conclusions of law where the only question before the court was the interpretation of a written instrument. The residuary beneficiaries fail to recognize that the construction of the will is a question of law. The only issue is whether the terms of the will are ambiguous. After reviewing the written instrument, the trial court found that the will was not ambiguous. Under the circumstances, no other findings of facts or conclusions of law were necessary.
The Burden of Persuasion
The residuary beneficiaries argue that the trial court erroneously shifted the burden of persuasion to the residuary beneficiaries. To support their position, the residuary beneficiaries cite Bowen, Administrator v. Hathaway, 202 Kan. 107, 110, 446 P.2d 723 (1968), and G & S Investment Co. v. Close, 240 Kan. 48, 51, 726 P.2d 1317 (1986), which observes that “[w]here each party to a lawsuit had a fair opportunity to present all his evidence, ¿he question as to which litigant had the burden of proof is immaterial unless the trial court’s ruling thereon shifts the risk of nonpersuasion from the litigant who must bear it in order to prevail in the action.”
It is the residuary beneficiaries who assert that the will is ambiguous. The burden of proving a disputed fact or issue rests upon the party asserting it as a basis of claim and remains with that party throughout the trial. This is true even though it may be incumbent upon the other party to proceed with the introduction of evidence at some stage of the proceedings. The burden of going forward with the evidence does not change the burden of proving a disputed issue. 202 Kan. at 110.
Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator. Here, the trial court determined as a matter of law that Article I of Cline’s will providing that all taxes be paid out of “my general estate” was not ambiguous. After finding the will was not ambiguous, the trial court refused to apply any presumption that would change the clear terms of the will and ruled against the residuary beneficiaries. The court did not shift the burden of persuasion to the residuary beneficiaries once it found as a matter of law that Article I of die will was not ambiguous.
The residuary beneficiaries allege tiiat there were ex parte communications prior to the proceedings which render the court’s decision suspect. There is nothing in the record on appeal confirming the residuary beneficiaries’ allegation of ex parte communications.
Because the will is not ambiguous, the remainder of the residuary beneficiaries’ arguments as to the failure of the district court to grant reconsideration do not merit further analysis.
Affirmed. | [
-79,
108,
-43,
-18,
8,
98,
42,
27,
115,
-16,
33,
83,
77,
-102,
80,
126,
122,
-65,
69,
107,
-9,
-78,
7,
-96,
90,
-77,
-39,
-35,
-77,
93,
-89,
94,
72,
112,
-54,
-51,
102,
-54,
-55,
82,
-122,
82,
42,
-95,
91,
82,
56,
103,
86,
8,
117,
-102,
51,
41,
56,
106,
104,
44,
89,
-72,
116,
-80,
-81,
-121,
95,
22,
16,
5,
-78,
6,
64,
11,
-104,
60,
64,
-24,
49,
-74,
18,
116,
109,
27,
13,
103,
99,
49,
40,
-19,
-80,
-102,
6,
95,
-115,
-89,
-110,
89,
96,
8,
-74,
-68,
124,
20,
7,
116,
-28,
-60,
93,
40,
8,
-113,
-42,
-127,
13,
112,
-100,
11,
-21,
-21,
34,
113,
-38,
40,
92,
71,
115,
19,
-122,
-70
]
|
The opinion of the court was delivered by
Abbott, J.;
This is a direct appeal by the defendant, Rachelle Shannon, from her convictions for attempted first-degree murder and aggravated assault. The defendant also appeals the trial court’s finding and its imposition of a one-year sentence for contempt of court.
The defendant testified at trial. She admitted shooting the victim and admitted that she intended to shoot at him. Her defense focused on whether she had the requisite intent to kill him.
She raises five issues on appeal. She contends the trial judge erred in (1) not instructing on other charges the defendant perceives to be lesser included offenses; (2) denying defendant’s motion for change of venue; (3) both holding her in contempt of court and the length of sentence he imposed for contempt; (4) limiting the direct examination of her; and (5) abusing his discretion in denying the defense’s request for individual voir dire.
I. LESSER INCLUDED OFFENSES
The defendant’s first complaint is that the trial court failed to instruct the jury on the lesser included offenses of attempted second-degree murder under K.S.A. 1994 Supp. 21-3402(b), attempted voluntary manslaughter under K.S.A. 1994 Supp. 21-3403(b), and attempted involuntary manslaughter under K.S.A. 1994 Supp. 21-3404(a) and (c).
K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. This is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993). An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense. State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983). However, the duty “does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). While there is some weighing of the evidence in this analysis, the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992). The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant.
The relevant statutes are as follows:
“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 1994 Supp. 21-3301(a).
“Murder in the second degree is the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 1994 Supp. 21-3402(b).
“Voluntary manslaughter is the intentional killing of a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211 . . . .” K.S.A. 1994 Supp. 21-3403(b).
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” K.S.A. 21-3211.
“Involuntary manslaughter is the unintentional lolling of a human being committed:
(a) Recklessly;
(c) during the commission of a lawful act in an unlawful manner.” K.S.A. 1994 Supp. 21-3404(a) and (c).
The defendant’s argument concerning attempted involuntary manslaughter and attempted second-degree murder is flawed. The defendant points to her testimony where she expressed indifference as to whether the victim lived or died. She testified she wanted to stop the victim from performing abortions; she did not necessarily want to Ml him. She reasons that this testimony demonstrates she had no specific intent to kill the victim. The flaw in defendant’s argument is based not on her testimony, but rather on the fact that neither attempted involuntary manslaughter under K.S.A. 1994 Supp. 21-3404(a) or (c) nor attempted second-degree murder under K.S.A. 1994 Supp. 21-3402(b) are recognized offenses in Kansas.
In the recent case of State v. Collins, 257 Kan. 408, Syl. ¶ 4, 893 P.2d 217 (1995), this court held that the crime of attempted involuntary manslaughter does not exist in Kansas.
“The language of the attempt statute, K.S.A. [1994] Supp. 21-3301(a), requires that a person possess the specific intent to commit the crime. Therefore, to establish the crime of attempted involuntary manslaughter the person would be required to specifically intend to commit an unintentional crime. This is a logical impossibility. . . . We conclude that Kansas does not recognize the crime of attempted involuntary manslaughter.” (Emphasis added.) 257 Kan. at 419.
Involuntary manslaughter requires an unintentional killing. K.S.A. 1994 Supp. 21-3404. The language of the involuntary manslaughter statute, K.S.A. 21-3404, has been amended in recent years. The version of the statute at issue in Collins (K.S.A. 21-3404) differs from the version at issue in this case (K.S.A. 1994 Supp. 21-3404). However, both the former and the present versions require an unintentional killing, and it was the attempt to commit an unintentional act that Collins found impossible.
The Collins analysis equally applies to attempted second-degree murder under K.S.A. 1994 Supp. 21-3402(b). In the past, this court has recognized “attempted second-degree murder” as a lesser included offense of attempted first-degree murder. See State v. Dixon, 252 Kan. at 41-42. Significantly, however, such recognition was based on the former language of the second-degree.murder statute. K.S.A. 21-3402 defined second-degree murder as “the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.” Effective July 1, 1993, K.S.A. 21-3402 was amended and second-degree murder is now defined alternatively as a killing committed intentionally (subsection [a]) or a killing committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life” (subsection [b]). K.S.A. 1994 Supp. 21-3402. Attempted second-degree murder under subsection (a) is a lesser included offense of attempted first-degree murder.
However, the defendant believes she is entitled to an instruction on attempted second-degree murder under subsection (b), not (a). Subsection (b) requires an unintentional killing. K.S.A. 1994 Supp. 21-3402(b). An “attempt” to commit the crime of “second-degree murder” under K.S.A. 1994 Supp. 21-3402(b) would require the specific intent to commit an unintentional killing. This is exactly what we found impossible in Collins.
The trial court did not err in failing to instruct the juiy on attempted second-degree murder or attempted involuntary manslaughter.
The defendant’s argument concerning attempted voluntary manslaughter is also flawed. The defendant’s theory of attempted voluntary manslaughter is under K.S.A. 1994 Supp. 21-3403(b)—the intentional killing committed with an unreasonable but honest belief that the circumstances justified deadly force to defend another against an aggressor’s imminent use of unlawful force. The defendant reasons that she had an honest, though unreasonable, belief that deadly force was necessary to protect unborn children from the victim’s acts of abortion. However, there is no evidence in the record that the defendant honestly believed the victim’s actions in performing-abortions were unlawful. In fact, the defendant testified that “our government refuses to do its job and protect the lives of the babies, so somebody has to.” Such language demonstrates the defendant recognized that performing abortions was not a use of unlawful force. The district court was only required to give an instruction on attempted voluntary manslaughter if there was some evidence upon which the jury reasonably could have convicted the defendant of the offense. There was no such evidence here, and the instruction was not required.
The trial court did instruct the jury on the lesser included offense of aggravated battery. No other lesser included offense instruction was appropriate. There was no error on this issue.
II. MOTION FOR A CHANGE OF VENUE
Next, the defendant asserts that the district court abused its discretion in denying her motion for a change of venue. K.S.A. 22-2616(1) states that the trial court, upon motion of the defendant, shall transfer the case to another county or district “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he [or she] cannot obtain a fair and impartial trial in that county.”
The defendant made her motion for a change of venue several months prior to trial, and the court held a hearing on the motion several days before trial. The court received into evidence copies of several articles published in the Wichita Eagle. These articles detailed the defendant’s involvement in the victim’s shooting, her past protesting activities and arrests, and opinions which other advocates had about her actions. Most of the information in the articles was provided by the defendant herself and, according to the defendant’s trial testimony, the articles were accurate as to information she had provided to the author. After hearing argument, the trial court denied the defendant’s motion for a change of venue.
Jury selection took one-and-one-half days. Thirty-six jurors and three alternate jurors were qualified for cause. During this process, eight venirepersons were excused for cause. Of these eight, five were excused because they could not set aside preconceived notions about the case or because they could not presume the defendant was innocent. The other three were excused for reasons not related to pretrial publicity. Therefore, of 47 venirepersons ques tioned, only 5 had been prejudicially affected by pretrial publicity. Most of the 39 venirepersons qualified for cause had been exposed to some pretrial publicity. However, each one was questioned extensively about whether he or she had formed an opinion about the case. Each one stated unequivocally that he or she had not formed an opinion or would be able to set aside that opinion and would presume the defendant innocent, in order to decide the case based solely on the evidence and the law.
After the completion of voir dire, the defendant made no motion to discharge the jury based on the effect of pretrial publicity, and she did not renew her motion for a change of venue.
This court recently stated the standard of review concerning the denial of a change of venue:
“The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.” State v. Butler, 257 Kan. 1043, Syl. ¶ 2, 897 P.2d 1007 (1995).
See State v. Lumbrera, 252 Kan. 54, Syl. ¶¶ 2, 3, 845 P.2d 609 (1992); State v. Grissom, 251 Kan. 851, 927-29, 840 P.2d 1142 (1992).
In State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), this court stated:
“Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into jury service who showed the slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue. Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice. There was no abuse of discretion on the part of the court in denying the defendant’s motion for change of venue.”
See Butler, 257 Kan. at 1059.
The defendant’s argument that some of the jurors had come to a conclusion that she was guilty before the evidence was even presented in this case is entirely speculative. Each venireperson was directly questioned about how extensively he or she had read or heard about the case. All venirepersons who indicated some knowledge about the case, except those excused for cause, unequivocally stated they had not formed an opinion about the case or they could set aside any opinion formed. Such venirepersons also asserted they could be fair and impartial and would decide the case based on the evidence. Nothing in the record suggests that any of the jurors were untruthful about their ability to set aside preconceived opinions and decide the case based solely on the evidence at trial.
The defendant has failed to meet her burden to show that her rights to a fair trial were substantially prejudiced by the pretrial publicity. The trial court did not abuse its discretion in denying the defendant’s motion for a change of venue. See State v. Bierman, 248 Kan. 80, 87-88, 805 P.2d 25 (1991).
III. REQUEST FOR INDIVIDUAL VOIR DIRE
The defendant also argues that the trial court erred in denying her motion to voir dire the venire individually. The defendant filed the motion several months before trial, and the trial court heard arguments on the motion two-and-one-half months before trial. At the trial court hearing, the defendant argued that, because the case concerned the abortion debate, there was a risk of contaminating the entire jury panel if some of the potential jurors held an extreme belief on the issue. Individual voir dire, according to the defendant, would serve judicial economy and insure a fair trial.
The trial court denied the defendant’s motion for individual voir dire, finding no need at that time to question jurors individually. The court did indicate that if there were specific questions which might cause problems, those could be conducted on an individual basis. Moreover, the court opined that the motion was premature because counsel had not indicated which questions might be sensitive. The defendant made no additional effort to question jurors individually during voir dire.
On appeal, the defendant’s argument is closely related to her argument concerning change of venue. She asserts that she was unable to question jurors about the allegations by the media that she was involved in other alleged illegal anti-abortion activities. If she had done so, she reasons, such a question would have alerted the entire panel to this prejudicial information. She contends that individual voir dire would have given her an opportunity to elicit precisely what the potential jurors knew about the case and how the information would affect their judgment, thus giving her a more honest view about how they really felt. Moreover, she suggests that the potential jurors were more likely to state they could set aside preconceived opinions about the case after having seen other jurors excused for cause when such excused jurors stated they were unable to set aside their opinions.
The purpose of the voir dire examination is to enable the parties to select competent jurors who have no bias, prejudice, or partiality. The nature and scope of the voir dire examination lies within the sound discretion of the trial court. See Lumbrera, 252 Kan. at 59; State v. Haislip, 237 Kan. 461, 485, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). Likewise, the manner in which voir dire is conducted must lie within the sound discretion of the trial court.
The trial court left open the possibility of permitting some individual voir dire if the defendant demonstrated a need arose during jury selection. The defendant did not renew her motion for individual voir dire either immediately before trial or during voir dire. The argument on appeal is speculative. There is no showing that counsel was prevented from adequately inquiring into the awareness of or influence from pretrial publicity due to the risk such questions would taint the rest of the venire. The comment of one juror that she had read that the defendant confessed did not prejudicially taint the rest of the venire. Cf. Lumbrera, 252 Kan. at 61 (trial court should have modified voir dire procedure when risk of contamination through juror comments became a reality rather than just a possibility proposed by defense counsel). Moreover, there is no showing that the venirepersons would have somehow been “more honest” had they been examined in private. The trial court did not abuse its discretion in denying tíre defendant’s motion for individual voir dire.
IV. LIMITING THE DEFENDANT’S TESTIMONY
The defendant’s fourth claim of error is that the trial court infringed upon her constitutional rights to testify and presént a defense by limiting her testimony on direct examination. The defendant referred to the victim as a “late-term abortionist” and wanted to testify about procedures used for terminating late-stage pregnancies. The trial court sustained the State’s objection that the testimony was irrelevant. The court also noted that the defendant was not competent to testify about such medical procedures. The court did rule that the defendant could testify about her motive.
The defendant argues that the testimony was necessary to explain her state of mind. She reasons that an explanation of the victim’s act illustrates why she may have been able to shoot him without a specific intent to kill him.
The defendant’s explanation of her motive for shooting the victim did not require testimony concerning his abortion procedures. The defendant was permitted to testify the victim performed abortions. She testified abortion in the late stages of pregnancy is no different than abortion at any stage of pregnancy; it is ¿1 “murder.” In her opinion, eveiy method of abortion is horrible. She also indicated that she did not know why she selected the victim as her target. Therefore, it was not the victim’s particular procedure for performing abortions, or even the fact that he performed abortions during the late stages of pregnancy, that gave rise to her motive; it was the fact that he performed abortions at all.
Testimony concerning the victim’s abortion procedures was not relevant in this case. The trial court did not abuse its discretion in limiting the defendant’s testimony on direct examination.
V. CONTEMPT OF COURT AND SENTENCE
The defendant’s final argument on appeal' concerns the trial court’s finding that she was in contempt of court. During cross-examination, the State asked the defendant from whom she had purchased the gun she used in the shooting. The defendant refused to answer the question, even after being ordered to by the trial court. The defendant only indicated that she went through several people to get the gun and would not give the names of any of the ones she knew. Therefore, the trial court found her in contempt of court. Following sentencing, the trial court imposed a one-year sentence for the direct contempt of court. The contempt sentence was made consecutive to the sentence imposed for the attempted first-degree murder and aggravated assault convictions.
Contempt of court may be direct or indirect, criminal or civil. Direct contempt is committed in the presence of a sitting court or in the presence of a judge sitting in chambers. All other contempts are indirect. K.S.A. 20-1202. The contempt here was direct contempt. A judgment of contempt lies within the sound discretion of the trial court before whom the matter is pending. Such judgment will not be reversed absent an abuse of discretion. Edmiston v. First Nat’l Bank of Holcomb, 242 Kan. 13, 15, 744 P.2d 829 (1987).
The defendant’s argument on appeal relates not to the court’s finding of contempt but rather to due process considerations which the trial court allegedly violated in its imposition of a one-year sentence for the contempt. She claims that the due process components of notice and an opportunity to be heard were violated. The defendant asserts she was entitled to a jury trial by virtue of the imposition of a one-year sentence. See Codispoti v. Pennsylvania, 418 U.S. 506, 516-17, 41 L. Ed. 2d 912, 94 S. Ct. 2687 (1974). She also asserts that the one-year sentence imposed was arbitraiy, was not rationally related to her conduct, and was cruel and unusual punishment.
The State concedes that a one-year sentence for the defendant’s contempt was inappropriate. The State concedes that a jury trial is required in cases of contempt for serious offenses, which are those carrying a sentence in excess of six months. However, a jury trial is not required in a case of contempt for petty offenses, which are those carrying a sentence of six months or less. See Codispoti, 418 U.S. 506; Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968). Because the defendant was not afforded a jury trial, the State agrees that the maximum sentence which could be imposed was six months. The State suggests this court can remedy the error by remanding the case to the trial court for the imposition of a sentence for contempt of six months or less.
A defendant has the right to a jury trial where, as here, the sentence imposed for contempt of court exceeds six months. Codispoti, 418 U.S. 506. Therefore, the citation for contempt is reversed and the sentence vacated. The case is remanded to the trial court with directions to impose a sentence for the contempt citation not to exceed six months or to grant the defendant a jury trial on the contempt issue.
The defendant’s convictions for attempted first-degree murder and aggravated assault are affirmed. The conviction and sentence for contempt is reversed and the case remanded to the trial court for compliance with the directions contained herein. | [
-48,
-22,
-115,
31,
11,
96,
50,
-104,
64,
-125,
112,
83,
47,
-61,
1,
123,
88,
125,
85,
105,
64,
-73,
39,
65,
-10,
-13,
17,
-41,
-74,
-38,
-17,
-97,
77,
-16,
-22,
85,
70,
-118,
-27,
80,
-120,
13,
-119,
-48,
-53,
10,
32,
98,
62,
6,
49,
-98,
-5,
42,
31,
-62,
9,
44,
74,
-67,
80,
-16,
-117,
-113,
123,
16,
-77,
-76,
-100,
7,
88,
54,
-104,
49,
0,
-20,
115,
-122,
-126,
84,
111,
-117,
-52,
102,
98,
33,
28,
-49,
61,
-95,
63,
118,
-99,
-89,
-104,
73,
73,
12,
-106,
-3,
52,
54,
14,
-12,
-27,
20,
81,
108,
-125,
-41,
-16,
-79,
-117,
53,
82,
-21,
-21,
-123,
-80,
117,
-52,
-30,
94,
64,
90,
-45,
-84,
-107
]
|
The opinion of the court was delivered by
McFarland, C.J.:
Pursuant to a plea agreement, Joe Johnson, III, was convicted of aggravated kidnapping (K.S.A. 21-3421), first-degree murder (K.S.A. 1992 Supp. 21-3401), and theft (K.S.A. 21-3701), for which he received two life sentences and a 1- to 5- year sentence, to run consecutively.
On April 25,1993, defendant, one of his brothers, his sister, and the sister’s boyfriend murdered 16-year-old Amanda Gardner in Topeka, Kansas, to obtain the victim’s automobile. The murder was premeditated and particularly brutal. Defendant’s sister, Donice M. Johnson, pled guilty to aggravated kidnapping and first-degree murder. We affirmed her convictions in State v. Johnson, 258 Kan. 100, 899 P.2d 484 (1995). Although the convictions of defendant and his codefendant sister were each by guilty pleas, the issues in the two appeals are uniquely interrelated and focus on the sen tencing of Donice. Defendant does not contend that the entry of his plea and the sentences imposed upon him were, in any respect, improper or violative of the plea agreement into which he entered. Rather, he contends that his pleas were conditioned upon his understanding that no one would be permitted to argue in favor of consecutive life sentences for Donice. He contends this condition was violated by the letters received by the district court from the public and the victim’s family as well as the statements made at sentencing by the victim’s sister on behalf of the Gardner family.
Both defendant and Donice were present at the joint proceeding in which their pleas were accepted on June 28, 1993. Defendant’s plea was heard first. The State made a statement as to what the plea agreement was, which made no reference to Donice. The following then occurred between the district court and defendant:
“THE COURT: Thank you. Now, I will ask first, Mr. Johnson, did you understand and hear the statements of the attorneys and particularly the district attorney regarding plea negotiations? Did you hear those statements and did you understand them?
“THE DEFENDANT: Uh-huh, yes.
“THE COURT: All right. And were the negotiations stated fully and correctly, as far as you’re concerned?
“THE DEFENDANT: Yes.
“THE COURT: Now, do you understand then that the agreement would be that you would plea guilty as charged to Counts 1, 2 and 3? That is Count 1 aggravated kidnapping, Count 2 murder in the first degree and Count 3 theft. The State would be asking that those sentences be served consecutively and that they will be asking for life sentences on the first two counts to be served consecutively, which would be a total of thirty years and then they would ask for a consecutive sentence on the theft Count 3, which would add another half year so that the total sentence would be thirty and a half years for parole eligibility, do you understand?
“THE DEFENDANT: Yeah.
“THE COURT: All right. Have there been any other promises made to you regarding your pleas in this case, other than the ones stated in open Court?
“THE DEFENDANT: No.
“THE COURT: Have you been coerced or threatened in any way?
“THE DEFENDANT: No.”
Although defendant waived formal reading of the complaint, the district court read the complaint to him. A factual basis for the plea was established, and defendant then pled guilty to the charges. The district court proceeded with Donice’s pleas. In exchange for Don-ice’s guilty pleas to first-degree murder and aggravated kidnapping, the State agreed: (1) to dismiss a theft charge; (2) not to ask the court for the “hard 40” or to proceed to trial on the “hard 40”; and (3) to take no position as to whether concurrent or consecutive sentences should be imposed. As both crimes were class A felonies with life being the only possible sentence of incarceration, the only issue at sentencing would be concurrent versus consecutive life sentences. After making proper inquixy of Donice and receiving appropriate responses, her pleas were accepted.
The sentencing of both defendant and Donice was set for August 24, 1993. On the day set for sentencing, defendant filed a motion to withdraw his guilty pleas, stating in pertinent part:
“3. The defendant’s Counsel and State’s Attorney knew and understood that pleas in the instant case and co-defendant Donice Johnson were contingent upon what happened in the other case, that is that both would have to plea or there would be no deals and that the defendant would not plead unless Donice Johnson had a good opportunity to receive a single life sentence.
“4. The defendant entered his plea believing that Donice Johnson would receive a life sentence in that Donice Johnson’s plea included the state agreement to take no position on concurrent or consecutive sentences.
“5. The State has in violation of this agreement either caused or allied with the victim’s family in an attempt to get consecutive sentences in direct opposition to its stated plea position.”
This motion was apparently triggered by the large amount of correspondence received by the district court from the public specifically requesting that Donice be given consecutive sentences. These letters had been the subject of a July 14, 1993, hearing. At that time, the district court had ruled that letters from the victim’s immediate family would be delivered to court services, with all other letters to be held by the court reporter. This procedure had been suggested by defendant’s counsel.
Defendant’s counsel testified at the hearing on defendant’s motion to withdraw the plea that as the victim’s family had approved the plea agreement, he had assumed the family’s position would be consistent with that of the State. The district court reviewed the transcript of the entry of the pleas of defendant and Donice. The district court denied the motion on the ground that insufficient cause had been given to warrant withdrawal of the plea. Specifically, the court stated: “[T]he presentation of the views of the victim’s family inconsistent with the prosecutor’s position was not and is not a breach of the plea agreement.” Additionally, the court found that defendant had not alleged that he was innocent of the offenses charged or that his plea was made because of fraud, duress, or mutual mistake, as required by State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992). Sentence was then pronounced. No claim of error is made as to the sentencing procedure utilized or to the sentences imposed.
Standard of Review
K.S.A. 22-3210 sets forth the procedures for acceptance and withdrawal of guilty or nolo contendere pleas as follows:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
“(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.
“(d) 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.”
The appropriate standard of review is whether the district court abused its discretion in refusing to allow withdrawal of the guilty plea. To justify a motion to withdraw the plea prior to sentencing, the motion should allege that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mu tual mistake, or lack of understanding of the charge and the effect of the plea. State v. Larry, 252 Kan. at 95.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. 252 Kan. at 95.
Defendant directs our attention to Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976), and Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973), cited therein. There, Morrow filed a K.S.A. 60-1507 petition requesting that he be allowed to withdraw his guilty plea. The issue in that case was whether “an ‘illegal’ threat and a meaningless promise made by the prosecutor and acquiesced in by the defense counsel” brought the voluntariness of Morrow’s guilty plea into question. 219 Kan. at 445. We held that it did and remanded the case for a hearing on the 60-1507 motion.
Morrow itself is distinguishable on its facts. First, Morrow was requesting withdrawal of his guilty plea after sentencing. Second, during the plea negotiations, Morrow was threatened with maximum consecutive sentences on the four counts charged. The State had also promised to dismiss three of the charges as part of the plea agreement. In actuality, Morrow could only have been convicted of one of the charges because the three dismissed counts were lesser included offenses.
As previously noted, the case before us is quite unique as defendant makes no claim that any aspect of the entry of his plea or the imposition of his sentences is erroneous or involves an abuse of discretion.
The district court went through the plea agreement with defendant before accepting his plea. Upon direct inquiry by the court, defendant acknowledged those were the terms he agreed to. As the district court noted, this is contrary to defendant’s allegations relative to the withdrawal of his plea.
Defendant and his counsel were present when Donice entered her plea of guilty. At that hearing, the State specifically advised the court that the plea agreement was as follows:
‘Tour Honor, die State has entered into negotiations on this case with Miss Donice Johnson. The State has agreed to dismiss only Count 3, which is the theft. [Donice] has agreed to plead guilty to Count 1 and 2, which is the aggravated kidnapping and the murder in the first degree. In exchange for those two pleas of guilty, the State has agreed not to ask the Court for the hard forty or proceed to trial on the hard forty and as well will take no [position] as to concurrent or consecutive sentences. That’s for the State. The family can request what they want. Again, the State would like to tell the Court that I have discussed this thoroughly with the victim’s family and they are in agreement with the negotiations.” (Emphasis supplied.)
Neither defendant nor his attorney made any objection thereto. Defendant’s position is that neither he nor his attorney was paying attention when the State set forth the terms of its plea agreement as to Donice.
It is interesting that in her appeal (State v. Johnson, 258 Kan. 100), Donice made no claim of error relative to the letters. Her issue was that the State violated the plea agreement at sentencing by emphasizing in its oral argument the brutal facts of the crime, which was tantamount to requesting consecutive sentences. The district court held that the State was “perilously close” to such a violation, admonished .the State, and proceeded with the sentencing. We affirmed the district court.
It is rather clear from the record that the victim’s family had generated many of the letters that were received. The victim’s sister, on behalf of the family, spoke at the sentencings herein and requested that consecutive sentences be imposed on Donice. Art. 15, § 15 of the Constitution of the State of Kansas gives victims of crime the right to be heard at the sentencing of those by whom they have been victimized. See also K.S.A. 74-7335, which defines victims of crime to include survivors. Defendant does not contend the family had no right to be heard.
We find no abuse of judicial discretion in the district court’s determination that defendant had failed to show good cause why he should be permitted to withdraw his plea. As previously noted, the district court relied in part on State v. Larry, 252 Kan. 92, Syl. ¶ 4, wherein we held:
“To justify a motion to withdraw a plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.”
Defendant’s motion did not allege that he was not guilty of the offenses charged or that the plea was made because of fraud, duress, mutual mistake, lack of understanding of the charge and the effect of the plea. However, defendant contends he had ineffective assistance of counsel. The claim was raised only perfunctorily in the district court. The district court found defendant’s counsel was an able and experienced attorney and that there was no basis on which to ground a motion to withdraw the plea herein based upon ineffective assistance of counsel. Defendant has failed to carry his burden of showing the district court abused its judicial discretion in denying defendant’s motion to withdraw his guilty plea.
The judgment is affirmed. | [
80,
-22,
-3,
-3,
56,
96,
43,
24,
-79,
-9,
100,
115,
-83,
-83,
1,
121,
59,
125,
85,
105,
80,
-73,
55,
-31,
-78,
-69,
-79,
84,
-77,
75,
-68,
-2,
72,
112,
10,
85,
102,
-62,
119,
94,
-116,
1,
-88,
-16,
66,
2,
48,
123,
28,
14,
117,
14,
-77,
42,
22,
-58,
73,
40,
91,
-81,
-64,
-111,
-21,
-105,
125,
17,
-93,
-91,
-98,
7,
120,
14,
-40,
57,
32,
104,
-13,
6,
-122,
116,
77,
-119,
44,
38,
98,
36,
-52,
78,
-4,
-111,
47,
118,
-99,
-89,
-103,
80,
70,
12,
-74,
-3,
125,
118,
41,
-8,
-9,
4,
45,
-20,
-127,
-49,
-80,
-95,
-113,
127,
66,
-6,
-21,
4,
32,
97,
-35,
98,
77,
103,
120,
-45,
31,
-4
]
|
The opinion of the court was delivered by
Lockett, J.:
Companion cases were filed by two community colleges against the Board of County Commissioners of Crawford County to collect unpaid out-district tuition. See K.S.A. 71-301(b). The County Commissioners argued that the amounts claimed had been improperly calculated and that the statutes which required the county to pay out-district tuition violated both the United States Constitution and the Kansas Constitution. The cases were consolidated for trial. Prior to trial, the parties moved for summary judgment. After the district court found the statutory procedure to collect out-district tuition was constitutional and granted judgment to the community colleges and the Kansas State Board of Education (KSBE), the parties announced that they had previously reached a partial settlement and requested the action be converted to one for declaratory judgment, which required realignment of the parties, to determine statutory and constitutional issues. The district court denied the request to convert the action. The County Commissioners appealed, claiming (1) the trial court abused its discretion in refusing to recognize the partial settlement agreement entered into by the parties and convert the action to one for declaratory judgment; (2) K.S.A. 71-301(b) as applied violates the provisions of article 2, section 17 of the Kansas Constitution; (3) K.S.A. 71-301(b) violates the provisions of article 11, section 1(b) of the Kansas Constitution; and (4) portions of the community colleges’ claims are barred by K.S.A. 71-301(d)(2). The appeal was transferred to this court pursuant to K.S.A. 20-3018(c), At oral argument, this court informed counsel for the parties that if the settlement agreement constituted an acquiescence in the trial court’s judgment, the County Commissioners’ right to appeal the trial court’s judgment was waived.
County’s Out-District Tuition Obligation
The Kansas Constitution requires the legislature to provide for intellectual, educational, vocational, and scientific improvement by establishing and maintaining public schools and educational institutions. The legislature is also required to provide for the financing of the educational interests of the state. Kan. Const. art. 6, § § 1 and 6(b). In compliance with these constitutional provisions, more than 75 years ago the Kansas Legislature authorized the establishment of junior colleges having a 2-year course of post-high school education. See R.S. 1923, 72-3301 et seq. In 1980 these junior colleges became “community colleges.” K.S.A. 71-120. Each community college has a board of trustees vested with the power to sue and'be sued. K.S.A. 71-201(b)(2).
Community college funding comes from several sources. Each community college has as a tax base a taxing district consisting generally of one county or less. The board of trustees is authorized to levy a tax on the taxable tangible property of the community college district. K.S.A. 71-204. Another source of funding is instate, out-of-state, and foreign student tuition. K.S.A. 71-301(a). A third source, the one at issue here, is out-district tuition. Out-district tuition is tuition paid by the board of county commissioners of the county of residence of in-state students who reside outside the community college district. K.S.A. 71-301(b).
Out-district tuition is calculated in the following manner. The board of trustees, in accordance with rules and regulations of the KSBE, determines the amount of out-district tuition to be charged for each out-district student attending the community college. K.S.A. 71-301(b). Based on information provided by the community college as well as its own audits and investigations, the KSBE determines the amount of out-district tuition each community college is entitled to bill counties each year. K.S.A. 71-607(a).
The board of county commissioners of a county charged with the payment of out-district tuition is required to levy a tax on all the taxable property in the county sufficient to pay the out-district tuition charges. The proceeds from the tax are deposited in a special fund for payment of out-district tuition. Upon receiving a bill for out-district tuition, the board of county commissioners is required to pay promptly the tuition from the special fund or, if there is insufficient money in the special fund, from the county general fund or from the proceeds from the sale of no-fund warrants issued for the purpose of paying out-district tuition. K.S.A. 71-301(b).
Refusal To Set Aside Summary Judgment
The trial court’s refusal to set aside the grant of summary judgment and to recognize the settlement agreement entered into by the parties and convert the action to one for declaratory judgment is a matter which lies within the sound discretion of the trial court. Judicial discretion is abused if it is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995). See Saucedo v. Winger, 252 Kan. 718, 729-32, 850 P.2d 908 (1993), for a detailed discussion of judicial discretion. After reviewing the record, we find that the trial court did not abuse its discretion in refusing to recognize the settlement agreement and convert the action to one for declaratory judgment.
Remaining Issues
During the conference of the case and after deciding the first issue, we observed that the remaining issues in the appeal concern whether the system for calculating and paying out-district tuition is constitutional and whether the amounts of out-district tuition sought by the community colleges were properly calculated. We noted that prior to the trial judge’s entry of judgment and without informing the judge, the parties entered into a settlement agreement which provided that the County Commissioners would pay the full amount of out-district tuition owed to the community colleges under the current causes of action. The agreement purported to preserve the County Commissioners’ right to appeal. However, regardless of the outcome of any appeal, the settlement agreement provided that the County Commissioners would not be reimbursed for the amounts they paid the community colleges pursuant to the agreement. Because the payment of the community colleges’ claims was not contingent on the outcome of the appeal and because the County Commissioners would not be reimbursed for the out-district tuition paid under the agreement, we believed the County Commissioners had acquiesced in the judgment of the trial court that the County Commissioners were required to pay the amounts sought by the community colleges. We observed that a party who voluntarily complies with a judgment cannot thereafter adopt an inconsistent position and appeal the judgment. Neither the statement of an intent not to waive the right to appeal nor an agreement between the parties to an action that the right to appeal is not waived can invest an appellate court with jurisdiction to determine issues where jurisdiction is otherwise lacking. See Varner v. Gulf Ins. Co., 254 Kan. 492, 496, 866 P.2d 1044 (1994).
We informed the parties of our holding that the trial court did not abuse its discretion in refusing to recognize the settlement agreement and convert the action to one for declaratory judgment. We then ordered the parties to show cause why the appeal should not be dismissed as to the remaining issues because, by entering into the settlement agreement, the County Commissioners acquiesced in the judgment of the trial court. Each party was given time to answer the show cause order and to respond to the other parties’ answers. All parties that responded contended the settlement agreement and the payment of the community colleges’ claims did not constitute acquiescence sufficient to cut off the right to appeal the constitutional issues. The County Commissioners did acknowledge that by agreeing to the amounts claimed by the community colleges, they waived their statutory claim that the amounts were improperly calculated.
The County Commissioners argue that they never intended to waive the right to appeal, an intention which was included in the settlement agreement and is not severable from the agreement. They point out that where a judgment or decree involves distinct and severable matters, demands, or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands, or issues. McDaniel v. Jones, 235 Kan. 93, Syl. ¶ 2, 679 P.2d 682 (1984).
The County Commissioners are correct that where a judgment involves distinct and severable issues, an acceptance of the burdens or benefits of one or more issues will not prevent an appeal as to the remaining contested issues. However, that rule does not apply here because the constitutional issues remaining in this appeal are not distinct and severable from the payment of out-district tuition made by the County Commissioners.
In Varner, 254 Kan. 492, a factually similar situation occurred when an insurance company paid a disputed amount to its insured’s employee pursuant to underinsured motorist (UM) coverage and the company then attempted to appeal its liability for UM coverage. We stated:
“Gulf has not paid an undisputed amount. Gulf’s position on appeal is that McGraw executed a valid rejection of UM excess limits coverage. Should Gulf succeed in its appeal, Gulf would not be hable to Varner at all under its policy; Gulf will owe Varner nothing. Yet Gulf has paid Varner $87,500, an amount which would not be owed were Gulf successful on appeal. Counsel have stated that Varner will not pay back the $87,500 to Gulf should Gulf succeed. The only basis for Gulf’s payment of $87,500 to Varner was its liability for UM excess limits coverage, the very coverage Gulf claims it is not hable for. Gulf has paid a disputed amount and therefore has voluntarily acquiesced in the judgment of the trial court.” 254 Kan. at 496-97.
Likewise, should the County Commissioners prevail or fail in their appeal of the remaining constitutional issues raised, they would not be liable for any amount of out-district tuition. By paying the full amount of the community colleges’ claims for out-district tuition under the settlement agreement, the County Commissioners have paid the very amount for which they contend they are not liable.
The mere statement of an intent not to waive the right to an appeal does not make a settlement or payment involuntary. The law of acquiescence is well established in Kansas. Voluntary compliance with the judgment of a trial court constitutes acquiescence, and where a party is found to have acquiesced in the judgment of a trial court, appellate jurisdiction is lacking and the party’s appeal must be dismissed. 254 Kan. at 497-98.
A challenge to the constitutionality of an act of the legislature is a matter of such gravity that an appellate court will not consider that challenge when the record discloses that the parties have settled the claim upon which that issue arose. Parties are not permitted to rely upon ah agreement not to waive the right of appeal in resolving their differences and subsequently seek an advisory opinion as to the constitutionality of a statute. Under the facts presented herein, one who agrees to the settlement of a claim will not later be heard to question the constitutionality of the statutes that created the claim. Leavenworth-Jefferson Electric Co-op v. Kansas Corp. Comm'n, 247 Kan. 268, Syl. ¶¶ 1-3, 797 P.2d 874 (1990).
The County Commissioners have acquiesced in the judgment of the trial court holding that the out-district tuition scheme is constitutional. The judgment of the trial court rejecting the parties’ settlement agreement to convert the action to one for declaratory judgment is affirmed. The appeal as to the remaining issues is dismissed. | [
-108,
-22,
-43,
124,
14,
-64,
35,
-118,
64,
-79,
38,
83,
41,
-50,
1,
121,
-106,
45,
80,
104,
65,
-78,
7,
-55,
-110,
-13,
-39,
-43,
-69,
-33,
-28,
-2,
76,
-16,
-54,
-43,
6,
-54,
-63,
30,
-114,
-113,
-56,
64,
-48,
-125,
-68,
32,
22,
10,
53,
95,
-13,
40,
28,
-61,
104,
44,
-37,
-19,
1,
-79,
-102,
-121,
126,
69,
-79,
36,
-116,
-125,
-48,
-82,
-104,
57,
8,
-24,
-1,
102,
-126,
-60,
5,
-103,
40,
110,
103,
49,
48,
-17,
56,
-103,
14,
-41,
61,
-28,
-109,
88,
98,
8,
-106,
29,
116,
86,
3,
116,
-30,
-123,
23,
124,
-121,
-50,
-48,
-77,
-115,
117,
-126,
7,
-5,
-92,
-80,
117,
-59,
-10,
95,
-57,
26,
59,
-2,
-67
]
|
The opinion of the court was delivered by
Abbott, J.:
This appeal involves judicial review of an agency action concerning eligibility for medical benefits. The Kansas Department of Social and Rehabilitation Services (SRS) discontinued Donna J. Squier s Medicaid eligibility due to excess resources. The trial court reversed that determination and SRS appeals. The appeal was transferred to the Supreme Court on this court’s own motion pursuant to K.S.A. 20-3018(c).
The facts of this case are not in dispute. Donna J. Squier was injured in a motor vehicle accident in 1988. While being treated for injuries sustained in that accident, she suffered severe and permanent brain damage, rendering her a permanent quadriplegic.
JoAnn Williams, Squier’s mother, was appointed guardian ad litem for Squier. Acting in her capacity as guardian ad litem, Williams instituted an action for and on behalf of her ward to recover damages. She also applied for and received medical long-term care benefits under the Medicaid program for her ward.
On August 11, 1992, Williams executed the JoAnn Williams Irrevocable Trust (“Williams trust” or “trust”) which was funded by Williams in the amount of $10. Williams is the named grantor of the discretionary trust. Bank IV Kansas, N.A. (Bank IV) is the trustee. Squier and her two minor children, Donielle Squier and Mary Jo Squier, are the trust beneficiaries.
Highly condensed, the 20-page trust agreement provides that “the trustee shall take into consideration the applicable resources and income limitations of any public assistance program for which Donna Jo Squier is eligible when determining whether to make any discretionary distributions.” The trust goes on to state that “no part of the corpus of the trust created herein shall be used to supplant or replace public assistance benefits,” and that “for purposes of determining Donna Jo Squier’s eligibility for such benefits, no part of the principal or income of trust shall be considered available to Donna Jo Squier.” The trustee is prohibited from knowingly exercising its discretion in a manner that would prevent Squier from receiving public assistance. The express intent is that no part of the trust income or principal be used to replace public assistance or in determining Squier’s eligibility for public assistance. The purpose of the trust is to provide goods and services in addition to those provided by public assistance.
At the time the trust was created, it was funded entirely with Williams’ money. At that time, it did not disqualify Squier. Williams was entitled to create a trust for the benefit of her daughter, and she had a legal right to provide for how it was to be used.
The problem arises because it becomes obvious why the trust was created. The same day the trust was executed, Squier’s damages case was settled. The settlement was approved by Ron Rogg, administrative judge of Sedgwick County. Judge Rogg authorized the payment of outstanding medical expenses incurred for Squier’s care and the payment of outstanding loans of Squier and repayment of PIP benefits. He also authorized attorney fees for Squier’s representation. Judge Rogg then made what at best can only be described as an unusual finding: “The settlement proceeds have not come into the possession or control of Donna J. Squier or her guardian.” He then ordered the remaining $1,672,570.63 paid to the trust.
The money placed in the trust was received in a lawsuit brought by the ward’s guardian for negligent injuries inflicted on the ward. A release was signed releasing the defendants from liability for the ward’s injuries, and Judge Rogg approved that release and the payment of approximately $127,500 in bills and loans incurred on behalf of the ward.
When SRS learned of the trust, it notified Williams that Squier was no longer entitled to Medicaid benefits because SRS considered the trust to be an “available resource” when evaluating Squier’s Medicaid eligibility. Williams appealed this decision. The hearing officer found the Williams trust to be a Medicaid qualifying trust (MQT) and thus available for Squier’s support, making her ineligible for Medicaid assistance. The hearing officer stated:
“The trust was created with funds received because of injuries and damages sustained by Donna Jo Squier. The trust was created by an individual who had been appointed to serve as guardian ad litem for Donna Jo Squier in the Sedgwick County lawsuit. The funds were Donna Jo Squier’s. They were not the trust settlor’s funds. They were not the court’s funds. They were the property of Donna Jo Squier. . . . [l]t is clear that the settlor was acting on behalf of Donna Jo Squier, as Donna Jo Squier’s legal representative.”
Williams then appealed the decision to the State Appeals Committee for SRS, which affirmed the hearing officer’s decision.
After exhausting the administrative process, Williams sought judicial review in the district court of Greenwood County. The district court reversed the decision of SRS.
The district court concluded that the Williams trust was not an MQT, disqualifying Squier from Medicaid benefits. The district court stressed that the purpose of the trust was to supplement, not replace, public financial assistance. The district court found that the record was silent as to what role, if any, Squier actually played in the creation of the trust and whether she had the capacity to voluntarily participate in the creation of the trust or in the settlement negotiations, and the record was insufficient to deem Squier as the grantor of the Williams trust. The court also found that Squier never had legal or equitable title to the settlement funds. Finally, the district court found that the trustee actually had no discretion to make distributions to Squier because the trustee was required to maintain Squier’s eligibility for Medicaid benefits. The district court ordered that Squier’s Medicaid benefits be reinstated without considering the Williams trust as an available resource.
This case involves judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Our standard of review is statutorily defined. One ground for relief is that the agency has erroneously interpreted or applied the law. K.S.A. 77-621(c)(4).
Background on the federal Medicaid program was recently stated by the Second Circuit Court of Appeals in Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993):
“The Medicaid program was enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, 1396a-u (1988) (‘Medicaid Act’ or ‘the Act’), as a cooperative federal-state program designed to provide health care to needy individuals. Although a state is not required to participate in the Medicaid program, once it chooses to do so it must develop a plan that complies with the Medicaid statute and the Secretary’s regulations. [Citation omitted.]
“A state, in administering its Medicaid program, must set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. See 42 U.S.C. § 1396a(a)(17). Those standards must take into account ‘only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient.’42 U.S.C. § 1396a(a)(17)(B).”
See Clark v. Commissioner, 209 Conn. 390, 394-96, 551 A.2d 729 (1988).
Kansas has elected to participate in the Medicaid program. K.S.A. 39-708c gives the Secretary of SRS the power and duty to determine general policies relating to all forms of social welfare and to adopt rules and regulations therefor. K.S.A. 39-708c(s) requires the Secretary of SRS to develop plans financed by federal funds and/or state funds for providing medical care for needy persons. Pursuant to that statute, the Secretary of SRS adopted regulations found at K.A.R. 30-6-34 et seq. SRS has also published the Kansas Public Assistance Manual (KPAM) detailing Medicaid eligibility and benefits.
Only “available” resources are considered in evaluating a Medicaid applicant’s eligibility. 42 U.S.C. § 1396a(a)(17)(B) (1988). A trust is considered an available resource if the conditions of an MQT are satisfied.
“(1) In the case of a Medicaid qualifying trust (described in paragraph (2)), the amounts from the trust deemed available to a grantor, for purposes of subsection-(a)(17) of this section, is the maximum amount of payments that maybe permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor. For purposes of the previous sentence, the term ‘grantor’ means the individual referred to in paragraph (2).
“(2) For purposes of this subsection, a ‘Medicaid qualifying trust’ is a trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.
“(3) This subsection shall apply without regard to—
(A) whether or not the Medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for medical assistance under this subchapter [42 U.S.C. §§ 1396 et seq.] or
(B) whether or not the discretion described in paragraph (2) is actually exercised.
“(4) The State may waive the application of this subsection with respect to an individual where the State determines that such application would work an undue hardship.” (Emphasis added.) 42 U.S.C. § 1396a(k) (1988).
This statute was repealed in 1993, but it applies to this case.
SRS contends that the Williams trust satisfies all of the elements of an MQT and it therefore correctly considered the trust as an “available resource” in evaluating Squier’s Medicaid eligibility. Williams contends that the trust does not satisfy the requirements of an MQT because it was not established by Squier, it was not established with Squier’s funds (a requirement under [k][2]’s Kansas counterparts, K.A.R. 30-6-106[c] and KPAM § 3200[17], and the trustees are precluded from exercising any discretion under the trust terms until public benefits have been exhausted. The trial court agreed with Williams and held that the Williams trust was not an MQT.
I. “INDIVIDUAL”
Williams first argues that the trust was not established by the individual (Squier) who applied for Medicaid benefits. This argument is incorrect. Although the trust was established in form by Williams, it was created with Squier’s funds and was established by her. In Forsyth v. Rowe, 226 Conn. 818, 826, 629 A.2d 379 (1993), the Connecticut court stated: “A trust is established by the person who provides the consideration for the trust even though in form it is created by someone else.” See In re Estate of Hickey, 263 Ill. App. 3d 658, 660, 635 N.E.2d 853, 855 (1994), cert. denied _ U.S. _, 130 L. Ed. 2d 1068 (1995); 76 Am. Jur. 2d, Trusts § 55. Moreover, implicit in the term “individual” is a person acting as an individual’s legal representative where the individual is incapable of acting on his or her own.
JoAnn Williams was appointed guardian ad litem for the purposes of Squier’s damages action, and Williams also appears in this case as Squier’s guardian ad litem. Williams concedes that she established the Williams trust in her capacity as guardian ad litem for Squier. She also concedes that the Williams trust was created in contemplation of a settlement in the damages action. The trust was initially funded with $10, Williams’ personal funds. We are aware that even a peppercorn can be consideration and that $10 can be consideration. That is not the issue in this case. The corpus of the trust here rapidly grew to more than $1.6 million, funded entirely, except for the initial $10, with proceeds from Squier’s damages settlement.
The creation of the Williams trust and the payment of the damages proceeds directly into the trust was an attempt to preserve Squier’s Medicaid eligibility in order to preserve the $1.6 million settlement for her children. This is precisely the situation § 1396a(k)(2) was designed to limit.
Williams argues that Squier never had a legal or equitable interest in the settlement proceeds; therefore, the Williams trust was not funded by Squier. The trial court agreed. We do not. The settlement proceeds may not have come into Squier’s hands directly, but the proceeds were hers nonetheless. The proceeds were derived from her cause of action in the damages case. That her representative in that case, Williams, agreed to a settlement in which the funds were placed directly into the Williams trust, does not alter the fact that die proceeds were Squier’s funds.
Several other courts, under facts nearly identical to those in the case at bar, have reached similar conclusions.
Forsyth, 226 Conn. 818, involved facts identical to the case at bar. Gregory Forsyth sustained injuries in a 1988 car accident which left him unable to care for himself. His father was appointed conservator of Forsyth’s estate and person. Forsyth’s father, acting on Forsyth’s behalf, entered into a settlement agreement with State Farm in which State Farm paid $195,000 into the Gregory L. Forsyth Trust in return for a release of Forsyth’s tort claim from the car accident. Forsyth’s application for Medicaid benefits was denied because the funds in the trust were deemed available to Forsyth. 226 Conn. at 820-21.
Forsyth’s father argued that the trust was not an MQT because it was established by him as Forsyth’s conservator and not by Forsyth. The Connecticut court disagreed, holding that for purposes of 42 U.S.C. § 1396a(k) Forsyth was both the grantor and the beneficiary of the trust. The court’s reasoning is persuasive:
“The trust in this case was funded with the proceeds from the settlement of the personal injury claim brought by [Forsyth’s father] solely on Gregory’s behalf. Gregory provided the funds with which the trust was established when, through [his father], his claim was settled in return for a payment to the trust. Gregory, therefore, is the individual who established the trust.
“. . . It is clear . . . from the purpose and history behind § 1396a (k) that a Medicaid qualifying trust may also be ‘established ... by an individual’ when that individual, acting through his conservator, provides the consideration for the trust.
“. . . The plaintiff’s narrow reading of the words‘established . . . by an individual’ discloses an ambiguity in the language of § 1396a (k) as applied to the facts of this case. It would be anomalous to construe the statute to allow a Medicaid applicant to accomplish through a conservator or guardian acting on his behalf what the law prevents that applicant from doing on his own.
"Our conclusion reflects the legislative concern that the Medicaid program not be used as an estate planning tool. The Medicaid program would be at fiscal risk if individuals were permitted to preserve assets for their heirs while receiving Medicaid benefits from the state. Congress enacted the Medicaid qualifying trust provision as an addition to the ‘provisions designed to assure that individuals receiving nursing home and other long-term care services under Medicaid are in fact poor and have not transferred assets that should be used to purchase the needed services before Medicaid benefits are made available.’ H. Rep. No. 99265, 99th Cong., 1st Sess. 71 (1985).
“Our holding that a trust established by the person who furnishes the consideration is a Medicaid qualifying trust for purposes of § 1396a (k) comports with the present Congressional mandate delineating the assets that are available to a potential Medicaid recipient. To permit Gregory to collect Medicaid benefits from the taxpayers when $195,000 of his assets are sheltered in a trust, all of which could potentially go to his heirs, would violate the spirit and intent of the Medicaid program.” 226 Conn. at 826-30.
Thomas v. Arkansas Department of Human Resources, 319 Ark. 782, 894 S.W.2d 584 (1995), also involved similar facts, except that the setdement proceeds were received from a workers compensation claim and the employer was designated as the grantor of the trust. The settlement proceeds, $270,000, were placed directly into the trust by the employer. 319 Ark. at 784. The court pointed to the Arkansas public policy that trusts not be created and used to sequester resources for the purposes of qualifying otherwise inel igible individuals for Medicaid assistance. 319 Ark. at 788. The court held that the trust was an MQT.
In Romo v. Kirschner, 181 Ariz. 239, 889 P.2d 32 (Ariz. App. 1995), the trust was created by the defendant in a personal injury action and funded with $150,000 from the personal injury settlement. In holding that the trust was an MQT, the Arizona court recognized fhe intent behind section (k) to close a loophole in the eligibility criteria and insure that persons receiving Medicaid ben: efits have not transferred assets which should be used to pay for their own care before Medicaid benefits are made available. 181 Ariz. at 241-42. The court rejected an argument that the trust in question was established or approved by the court at the request of fhe individual’s conservator, finding that the trust was in reality established by the individual acting through his conservator. The court also pointed out the potential for unfairness should a contrary result be reached: “[A] beneficiaiy who is represented by a conservator and has his trust approved by a court may preserve his assets, while one who lacks a conservator and court approval loses them.” 181 Ariz. at 242.
Barham v. Rubin, 72 Hawaii 308, 816 P.2d 965 (1991), also involved similar facts where a Colorado probate court having jurisdiction over a personal injuiy action deemed itself to be fhe settlor of a trust. The Hawaii court recognized the purpose of Medicaid to provide assistance to those whose income and resources are inadequate to meet the costs of necessary medical services and concluded: “To permit Barham to collect public assistance benefits while he is receiving and potentially accumulating $3000 a month, all of which may go to his heirs, would violate fhe spirit and intent of the Medicaid laws.” 72 Hawaii at 312.
Cases involving inheritance, rather than settlement proceeds, placed in a trust are also persuasive. Ronney v. DSS, 210 Mich. App. 312, 532 N.W.2d 910, (1995), includes a helpful discussion of the interpretation of section (k)(2). In Ronney, tibe plaintiff inherited $50,000 which her niece, as her legal guardian, placed in a trust. The court held that a trust established by a legal guardian is an MQT, relying on the interpretation of section (k)(2) by the Secretary of the Department of Health and Human Services, through the Health Care Financing Administration (HCFA):
“In its State Medicaid Manual, the HCFA has codified its . . . interpretation in the following manner:
An ‘individual’ is the person who both establishes the trust (or whose spouse establishes the trust) and is beneficiary of the trust. A trust that is established by an individual’s guardian or legal representative acting on the individual’s behalf, falls under the definition of a Medicaid qualifying trust. If an individual is not legally competent, for example, a trust established by his legal guardian (including a parent) using the individual’s assets can be treated as having been established by the individual, since the individual could not establish the trust for himself.
[Healthcare Financing Administration, Department of Health and Human Services, State Medicaid Manual, § 3215.1 (May 1989).]” 210 Mich. App. at 316.
The Ronney court agreed with the Forsyth court that a trust is established by the person who provides the consideration for the trust. Therefore, the court read section (k)(2) as including guardian-established trusts as MQTs.
Other cases reaching similar conclusions include Hatcher v. Dept. of Health & Rehab. Serv., 545 So. 2d 400 (Fla. Dist. App. 1989) (upon father’s death, mentally retarded 30-year-old became entitled to annuity benefits which were placed by legal guardian into a trust; court held trust was an MQT); Striegel v. S.D. Dept. of Social Services, 515 N.W.2d 245 (S.D. 1994) (upon father’s death, mentally incompetent adult inherited money and property which years later were placed with court approval into a trust by legal guardian; court held trust was an MQT). See In re Johannes Trust, 191 Mich. App. 514, 479 N.W.2d 25 (1991).
Williams relies on Kegel v. State, 113 N.M. 646, 830 P.2d 563 (Ct. App. 1992). There, a settlement from a malpractice action provided for payments made jointly to the seven-year-old disabled Medicaid beneficiary’s conservator, his parents, and their attorneys. The conservator established a trust with some of the funds. Placing the burden on the state department of human services to prove that the child was no longer eligible for Medicaid benefits by showing that the trust was an MQT, the court found the evidence insufficient to prove that the child was the grantor of the trust.
Kegel is distinguishable from the case at bar. In Kegel, the monies with which the trust was funded were payable to both the child and his parents, with no distinction as to what portion of the settlement proceeds belonged to the parents and what portion was the child’s. Here, Squier was the sole plaintiff in the damages action. The settlement proceeds were hers alone. Moreover, the reasoning of Forsyth and the other cases discussed above is more persuasive.
Williams also cites Trust Co. of Okl. v. State ex rel. DHS, 825 P.2d 1295 (Okla. 1991), in arguing that a trust created by an individual’s legal representative is not legally tantamount to a trust established by the individual for purposes of Medicaid eligibility. Trust Co. did not address whether die trust was an MQT under section (k) except in a footnote. In the footnote, the court concluded summarily that the trust was not an MQT because the setdor was the tortfeasor rather than the beneficiary. 825 P.2d at 1302 n.31. The Trust Co. facts are nearly identical to those in the case at bar, but the court’s failure to address the MQT issue more extensively limits the persuasiveness of its decision.
Williams also relies on Miller v. Ibarra, 746 F. Supp. 19 (D. Colo. 1990), in which Colorado probate courts had approved creation of trusts in favor of four mentally incompetent nursing home patients. The federal district court held that the trusts were not MQTs because they were not created by the Medicaid beneficiaries. Miller predates all of the cases discussed above holding that the trusts were MQTs except Hatcher. The court distinguished Hatcher as relying on Florida law to conclude that the guardian was acting in place of the incompetent person. The court also distinguished Hatcher because the Hatcher trust involved not only income but also principal in excess of $10,000. 746 F. Supp. at 3334. For these same reasons, Miller is distinguishable from the case at bar. Here, the trust is more like the one found in Hatcher than the ones in Miller. Significantly, the Miller court pointed out that the trusts at issue had no remaindermen; rather, any remnants of the income would go to the Colorado Department of Social Services. 746 F. Supp. 34. Here, conversely, the remnants of the Williams trust will go to Squier’s children, not to the State. For these reasons, Miller is not persuasive.
We follow the reasoning of Forsyth, Ronney, and the other cases holding that trusts established by an individual’s legal representative with the individual’s own funds are established by the “individual.” The Williams trust is precisely the situation Congress protected against by enacting 42 U.S.C. § 1396a(k). Here, in anticipation of receiving some $1.6 million from a damages settlement, a trust was created in an attempt to preserve Squier’s Medicaid eligibility. Although the trust was in form created by Williams; it was funded by Squier and therefore established by her.
II. DISCRETION
Williams also argues that the third requirement of an MQT, that the trustee have discretion with respect to distributions to the individual, is not satisfied. This, argument is incorrect.
An argument similar to this was rejected by the Connecticut Superior Court in Forsyth v. Rowe, 1995 WL 152124 (1995), after the Connecticut Supreme Court remanded the case for a determination of the extent of the trustee’s discretion:
“The plaintiff argues that the funds in the trust cannot be deemed available to Gregory because the trustee does not have discretion to use the trust funds to pay for basic support which is available from any source, including state or federal benefits. In Estate of Wallace v. Director, 628 S.W.2d 388, 389 (Mo. App. 1982), the court considered a similar argument and stated:
The defect in the logic of this argument lies in the fact that the appellant is asking the Division to premise its determination of claimant’s need on the assumption that claimant will be entitled to assistance. Entitlement to assistance, however, is the end product of the Division’s inquiry; it may not be assumed as the first step.
“Based on this court’s reading of the trust agreement, the trustee or trust advisory committee had the discretion to make or withhold payment in any amount, and had the discretion to invade the entire principal of the trust. Therefore, this court finds that the hearing officer was correct when he found that under 42 U.S.C. § 1396a(k) the entire corpus of the trust must be considered available to Gregory for purposes of determining eligibility for Medicaid.” 1995 WL 152124 at 3.
A similar rationale is set forth by SRS here. If Medicaid is not available to Squier, the trustee has clear discretion to pay amounts from the income or principal of the Williams trust for Squier’s support. In addition to Estate of Wallace, 628 S.W.2d 388 (Mo. App. 1982), SRS cites Gulick v. Dept. of Health & Rehab. Serv., 615 So. 2d 192 (Fla. Dist. App. 1993). Williams, conversely, attempts to distinguish Estate of Wallace because the claimant was not only the beneficiary of the trust, but also the grantor and co-trustee. Regardless, the Estate of Wallace rationale is persuasive.
The Williams trust expressly states that the trust is intended to supplement, not replace, public assistance. The trustee is required to seek public assistance and may not distribute income or principal in a manner that would make Squier ineligible for public assistance. However, as in Estate of Wallace, Williams’ argument presupposes that Squier is eligible for public assistance. If Squier is ineligible for Medicaid, the entire corpus of the Williams trust is available for Squier’s support. The trust agreement clearly gives the trustee the discretion to distribute from both the income and the principal such amounts as it deems advisable for Squier’s support. That tire trustee is required to seek public assistance for Squier and that the trustee may not knowingly distribute amounts which would render Squier ineligible for public assistance do not limit the discretion of the trustee should Squier be ineligible for public assistance. This satisfies the “discretion” requirement of § 1396a(k)(2).
III. RECENT CHANGES
Williams also points to a 1993 change in the MQT statute in arguing for a strict interpretation of the word “individual” as it is used in 42 U.S.C. § 1396a(k)(2). In 1993, the Omnibus Budget Reconciliation Act (OBRA-93) repealed 42 U.S.C. § 1396a(k). The MQT statute now appears at 42 U.S.C. § 1396p(d) (1993), which states in pertinent part as follows:
“(2)(A) For purposes of tins subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will:
(i) The individual.
(ii) The individual’s spouse.
(iii) A-person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse.
(iv) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse.
(C) Subject to paragraph (4), this subsection shall apply without regard to—
(i) the purposes for which a trust is established,
(ii) whether the trustees have or exercise any discretion under the trust,
(iii) any restrictions on when or whether distributions may be made from the trust, or
(iv) any restrictions on the use of distributions from the trust.
(3)(A) In the case of a revocable trust—
(i) the corpus of the trust shall be considered resources available to the individual,
(ii) payments from the trust to or for the benefit of the individual shall be considered income of the individual, and
(iii) any other payments from the trust shall be considered assets disposed of by the individual for purposes of subsection (c) of this section.
(B) In the case of an irrevocable trust—
(i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income—
(I) to or for the benefit of the individual, shall be considered income of the individual, and
(II) for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c) of this section; and
(ii) any portion of die trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of the establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c) of this section, and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date.”
Williams argues that the Congressional changes alter the former MQT law by closing loopholes in the former statute. The trial court agreed, relying on the general presumption that the legislature, in amending a statute, intends to change the law as it existed prior to the amendment.
SRS argues that the changes were only to clarify, not alter, the MQT statute. We agree. In this case, any presumption that Congress intended to change MQT law is inapplicable. Although the former statute used only the term “individual” and did not specify that the term “individual” includes persons acting on behalf of the individual, the amendment including that definition of “individual” does not constitute a change in the law.
In summary, we hold that the Williams trust is an MQT and therefore an “available resource” in evaluating Squier’s Medicaid eligibility. SRS did not erroneously interpret the law.
Under 42 U.S.C. § 1396a(k)(1), the maximum amount of payments permitted under the terms of the trust, assuming the full exercise of discretion by the trustee, are deemed to be “available.” The Williams trust authorizes the trustee in its discretion to make payments from both the income and the principal of the trust. Therefore, the entire corpus of the Williams trust is considered “available” to Squier.
Reversed. | [
-44,
-24,
-11,
62,
8,
-32,
26,
10,
99,
-65,
53,
17,
-85,
106,
21,
111,
127,
61,
-59,
97,
-45,
-77,
55,
-120,
-48,
-1,
-39,
-33,
-13,
95,
102,
-42,
12,
112,
42,
69,
102,
-117,
-43,
16,
-116,
-126,
-118,
-24,
89,
-61,
-84,
39,
-102,
3,
113,
22,
-111,
40,
56,
111,
-20,
44,
123,
57,
76,
-88,
-117,
5,
-34,
21,
33,
4,
-76,
47,
-48,
34,
-102,
-71,
72,
-24,
50,
-90,
-102,
-76,
107,
-103,
12,
102,
102,
-80,
52,
-3,
-124,
-84,
-114,
-106,
-83,
-59,
-109,
89,
114,
11,
-107,
-68,
109,
20,
72,
124,
-18,
76,
95,
-84,
9,
-113,
-106,
-95,
-52,
120,
88,
-117,
-25,
-59,
48,
101,
-40,
-26,
89,
19,
54,
19,
-82,
-70
]
|
The opinion of the court was delivered by
Six, J.:
This case arises in a corporate setting and includes allegations of breach of fiduciary duty, breach of a third-party beneficiary contract, and fraud in the initial distribution of stock. The litigation is fueled by the tension resulting from Pizza Management, Inc.’s (PMI) failed attempt in 1986 to go public. PMI, a defendant, was a closely held Texas corporation and a franchisee of numerous Pizza Hut restaurants. The other defendant is Arturo G. Torres, PMTs president, chief executive officer, and majority shareholder, owning about 60 percent of PMI stock. The plaintiff, Wallace R. Noel, was a minority shareholder, owning 10 percent of PMI. (Shortly after the organization of PMI, Noel gave some PMI shares to each of his two sons who are also plaintiffs in the instant case.)
Noel sold his PMI shares for over $3 million in 1990, at $8.25 per share, but contends he would have received at least $15 per share had the planned public offering in 1986 been successful. Noel originally filed this action against Pizza Hut, Inc. and PepsiCo, Inc. claiming that they wrongfully blocked PMTs attempted public offering. After a federal court held in a separate but related case, Pizza Management, Inc. v. Pizza Hut, Inc., 737 F. Supp. 1154 (D. Kan. 1990), that Pizza Hut and PepsiCo acted within their rights, Noel adjusted focus and sought recovery from PMI and Torres. He essentially claimed he was unlawfully deprived of an opportunity to sell his PMI stock at a presumably higher price in the public market.
The district court granted summary judgment for Torres and PMI on Noel’s third-party beneficiary contract claims, but denied summary judgment on the others. The jury found: (1) Torres breached certain fiduciary duties owing to Noel, but Noel suffered no damages as a result, and (2) no fraud in the initial stock distribution. The district court entered judgment for Torres and PMI, and Noel appeals.
The case has consumed much time and paper. The record on appeal consists of 89 volumes and, conservatively, over 20,000 pages of pleadings, motions, transcripts, and exhibits. The jury trial lasted over two months. The trial transcript exceeds 5,800 pages.
Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from Court of Appeals by our motion).
THE APPELLATE PREHEARING CONFERENCE ORDER
Retired Chief Justice David Prager, sitting by assignment, presided at two appellate prehearing conferences scheduled before the oral argument in this court. The parties agreed upon a concise statement of issues and a stipulation of undisputed facts as background for the appeal. We have addressed Noel’s issues as set out in the prehearing conference order.
ISSUES
Noel alleges: (1) trial error in the admission of evidence and refusal to give requested instructions, (2) an inconsistent jury verdict, (3) error by die district court in sustaining defendants’ motion for summary judgment on Noel’s third-party beneficiary claim and in responding to an eariier appeal in Noel v. Pizza Hut, Inc., 15 Kan App. 2d 225, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991), and (4) abuse of discretion in refusing to allow plaintiff leave to claim punitive damages.
We find no error and affirm.
FACTS
STIPULATION OF UNDISPUTED FACTS
“1. The basic facts underlying this appeal are as follows:
“2. In 1972, plaintiff Wallace R. Noel acquired the exclusive Pizza Hut franchise rights for the territories of Kerrville, New Braunfels, Seguin, Uvalde, and Eagle Pass, Texas.
“3. In 1973, Noel sold to defendant Arturo G. Torres a one-half interest in the Kerrville, New Braunfels and Seguin territories and the full interest in the Uvalde and Eagle Pass territories. About the same time, Noel and Torres formed a partnership to operate the Kerrville, New Braunfels and Seguin, Texas franchises. Noel and Torres owned equal shares in the partnership. Later in 1973, die Noel/ Torres partnership was incorporated as BNT Enterprises, Inc. to operate Pizza Hut restaurants in the Kerrville, Seguin and New Braunfels territories.
“4. In 1974, Torres approached Noel and several other Pizza Hut franchisees with a proposal that these franchisees transfer their interests in the various Pizza Hut franchises they owned to a company Torres would form and manage in exchange for common stock in the newly formed company.
“5. In May 1975, a Texas corporation, Pizza Management, Inc. (PMI) was formed. In July 1975, stock in PMI was issued. Noel received 131,579 shares. At that point, Torres owned approximately 60% of the outstanding shares and Noel owned approximately 10%. Torres became Chairman of the Board and President of PMI. Noel became a vice president of PMI and a member of the Board of Directors for a short period of time. Shortly after the stock was first issued, Noel gave 1,000 shares of stock to each of his two sons, who are the other two plaintiffs in this action. Plaintiffs collectively owned more than 390,000 shares of PMI stock at the time of the attempted public offering of PMI stock in 1986.
“6. On November 1,1976, a written agreement (the 1976 agreement) between Pizza Hut, as franchisor, and PMI and Torres, individually, was executed. The agreement provided as follows:
“Whereas, the franchise agreements listed above (the “Franchise Agreements”) each have been or hereby will be assigned to PMI in order for such corporation to be the operating entity thereunder; and
“Whereas, Torres and PMI desire that such restrictions on transfer be revised to allow free transferability of PMI shares by the shareholders of PMI other tiran him [Torres] and that such guarantee be applicable only to him and further to provide for die possible public offering of PMI’s stock in the future and [f]or future issuance of shares by PMI (so long as Torres’ ownership is maintained as herein provided); and
‘Now, Therefore, in consideration of the mutual agreements contained herein, the parties agree as follows:
‘1. PMI may issue and/or sell or otherwise lawfully issue additional shares of its stock from time to time and the shareholders of PMI otiier than Torres may sell, assign or transfer their PMI shares witiiout any restrictions imposed by Pizza Hut, and PMI may register its shares under the provisions of die Texas Securities Act, subject to the restriction tiiat Torres agrees that at all times he will take any and all actions necessary to cause him to remain die record and beneficial owner of at least fifty-one percent (51%) of the issued and outstanding shares of stock of PMI; provided, however, that in tire event that the stock of PMI shall be sold in an underwritten public offering registered under the Securities Act of 1933, as amended, the foregoing restriction on ownership by Torres shall no longer apply, so long as Pizza Hut is given thirty (30) days prior written notice of such offering and approves the Prospectus and Registration Statement, and all amendments thereto, insofar as die same refers to Pizza Hut, its relationship to PMI and Pizza Hut’s registered trademarks and trade-names, which approval will not be unreasonably withheld. PMI and Torres agree diat such stock will not be offered by use of die name “Pizza Hut” except to reference the fact that PMI is a franchisee of Pizza Hut.’
“7. Noel did not assign his franchise territories to PMI until after he reviewed a copy of the 1976 agreement on February 1, 1977.
“8. In 1981, Pizza Hut adopted a new franchise agreement form called die ‘Superseding Franchise Agreement’ (SFA). By this time, Pizza Hut had been acquired by and was a wholly-owned subsidiary of PepsiCo, Inc. The 1981 SFA was to replace all of Pizza Hut’s previous franchise agreements and it contained restrictions on the transferability of a corporate franchisee’s shares and made a public offering by a franchisee dependent upon obtaining the consent of Pizza Hut, in advance. PMI refused to sign the 1981 SFA unless Pizza Hut reconfirmed, in writing, the public offering and share transferability rights expressed in die 1976 agreement.
“9. On July 20, 1981, Pizza Hut executed and delivered a document entitled “Blanket Amendment To Superseding Franchise Agreement” (1981 Blanket Amendment) which confirmed the public offering and stock transferability rights of PMI in language essentially identical to that contained in the 1976 agreement. On the same date, PMI and Pizza Hut executed the new Superseding Franchise Agreements. At this point there was no violation of Noel’s rights by Torres or PMI.
“10. Noel has contended throughout this litigation that he was a third-party beneficiary of the 1976 agreement and the 1981 Blanket Amendment. Torres and PMI have denied that Noel was a third-party beneficiary. Noel also contends that issue was decided in his favor in Noel v. Pizza Hut, Inc., et al., 15 Kan. App. 2d 225, rev. denied 248 Kan. 996 (1991). The Kansas district court granted defendants’ summary judgment on Noel’s claim for relief based on his third-party beneficiary theory.
“11. In 1985, Pizza Hut and PMI discussed a trade of franchise territories PMI held in California, Oregon, and Illinois for franchise rights in certain cities and counties in Texas. The proposal was for PMI to assign to Pizza Hut 31 franchise units in California, Oregon, and Illinois in exchange for 44 franchise units in Texas. The exchange took place and is referred to by tire parties as the ‘Texas Swap’ Transaction.
“12. In May 1986, Torres negotiated a purchase by PMI of the Pizza Hut franchise rights for the City of Madrid, Spain from Restaurant Associates, S.A. and John Finerty. The Pizza Hut franchise held by Finerty contained a provision requiring the prior written approval of PepsiCo for any assignment of Pizza Hut franchise rights. Prior written approval was not obtained, but the transaction was nevertheless closed. The parties refer to this transaction as the ‘Restaurant Associates, S.A. Finerty’ transaction.
“13. At various times, PMI entered into certain agreements with various PMI corporate officers, directors and ‘friends.’ The agreements authorized these persons to purchase stock at low prices. A total of 80,000 shares of PMI stock was involved. The parties refer to these agreements as deferred compensation agreements or as subscription and buy-back agreements.
“14. In 1986, PMI, acting through Torres, employed counsel and engaged an underwriting firm, Shearson Lehman Brothers, for the purpose of publicly issuing new shares of PMI stock. Pizza Hut blocked the public offering by refusing tc give its consent, relying in part on the Texas Swap, and the public offering nevei took place.
“15. In July 1986, Torres and PMI filed suit against Pizza Hut and PepsiCo in the United States District Court for the District of Kansas. In 1987, both plaintiffs and defendants in the federal litigation filed motions for partial summary judgment on the issue whether Pizza Hut and PepsiCo had breached the terms of the 1976 agreement and 1981 Blanket Amendment by refusing to consent to the 1986 public offering.
“16. In May 1988, Noel filed the present action against Pizza Hut and PepsiCo in Sedgwick County District Court contending he sustained substantial damages in 1986 when the proposed public offering was blocked by Pizza Hut and PepsiCo. PMI and Torres were later added as party defendants.
“17. On April 14,1989, in the federal litigation, the United States District Court granted Pizza Hut and PepsiCo partial summary judgment and ruled that, as a matter of law, Pizza Hut had acted within its rights and did not breach the 1976 agreement or the 1981 Blanket Amendment by refusing to permit PMI to go forward with the 1986 public offering. Torres and PMI perfected an appeal to the United States Court of Appeals for die Tenth Circuit which was dismissed by the parties as part of a settlement agreement.
“18. In 1990, Noel sold his stock to PepsiCo for $8.25 per share for a total of $3,250,071.00 in cash in order to avoid a mortgage foreclosure on certain real estate and any potential deficiency judgment.
“19. In 1992, PMI conveyed to Pizza Hut and PepsiCo all of its Pizza Hut franchises and restaurants. The price realized by PMI shareholders in a combination of cash and stock in PepsiCo amounted to $73,144,000, tire equivalent of more than $21.00 per share. At that time, the case in federal court was dismissed.
“20. Noel contends he suffered a minimum of $2.6 million in damages in 1986 due to the actions of Torres and PMI in connection with the Texas Swap transaction, the Restaurant Associates, S. A./Finerty transactions and the deferred compensation agreements which led to the blocking by Pizza Hut of the contemplated public offering. Torres and PMI contend that Noel did not suffer any damages as a result of their actions, but any damages were the result of Noel’s own actions.
“21. The jury found PMI and Torres had breached fiduciary duties related to the Texas Swap transaction, the Restaurant Associates, S.A./Finerty transaction, and the deferred compensation agreements but that Noel had sustained $0 damages.”
DISCUSSION
Admission of Certain Evidence
Noel contends that the district court erroneously admitted irrelevant and prejudicial evidence. He challenges the admission of evidence concerning his (1) divorce, (2) prior investments, (3) financial statements dating from the 1970s, (4) federal income tax return for 1990, and (5) sale of PMI stock to Pizza Hut and PepsiCo in 1990. He does not explain why these items concerning his personal and financial history were not relevant. Instead, citing cases from other jurisdictions, he states that “[t]he prior or existing financial condition of an injured party is neither material nor relevant in determining either liability or damages in an action for compensatory damages.” He claims that Torres and PMI used such evidence to “highlight and support their improper assertion that Noel’s personal history, financial condition and investment practices were somehow responsible for the damages which flowed from the failed public offering.”
The defendants assert that Noel failed to preserve these evidentiary issues for appeal. Noel claims his counsel “objected repeatedly to the admission of such evidence.” His citations to the record, however, show objections only to the introduction of his 1972-74 and 1977-81 financial statements.
Noel explains his failure to object to the other items this way: “When it became clear that further objections to such evidence were futile, plaintiffs’ counsel ceased to make objections to avoid delay in the trial and alienation of the jury.” Noel does not provide any citation to the record in support of his explanation. He does not allege, for example, that his counsel requested a continuing objection covering all of the evidence now challenged on appeal. Consequently, except for his pre-1981 financial statements, Noel has failed to show that his counsel objected at trial. The failure to object waives a challenge on appeal. K.S.A. 60-404; Anderson v. Scheffler, 248 Kan. 736, 742, 811 P.2d 1125 (1991).
As to his pre-1981 financial statements, Noel challenges their admission solely on grounds of relevance. Rulings on relevance rest in the sound discretion of the district court. Consequently, our standard of review is abuse of discretion. See Herbstreith v. de Bakker, 249 Kan. 67, 83, 815 P.2d 102 (1991). The determination of relevancy is more a matter of logic and experience than it is a matter of law. McGuire v. Sifers, 235 Kan. 368, 371, 681 P.2d 1025 (1984).
Torres and PMI contend that Noel’s pre-1981 financial statements were relevant to discredit the damages model Noel developed at trial. Noel claimed that he was damaged in two ways by the failure of PMI to go public in 1986: (1) He was unable to sell his PMI stock in the initial public offering and aftermarket — i.e., lost proceeds, and (2) he was unable to invest and “use” the proceeds of such a sale from 1987 to the present — i.e., lost “earnings appreciation.” Noel introduced his damages calculations through the testimony of an expert witness, Paul Allen, a certified public accountant. Using Allen’s calculations, Noel alleged $7.1 million in lost proceeds on his 393,000 shares of PMI, plus $4.7 million in lost “earnings appreciation” on those proceeds, for a total of $11.8 million. Noel then subtracted $3.8 million to account for his 1990 sale of PMI stock to Pizza Hut. Thus, Noel alleged $8 million in total damages.
Allen made numerous assumptions which were challenged by the defense. For example, Allen assumed that Noel would have sold all of his PMI stock by October 1, 1987, which would have been within one year after the planned public offering. Allen admitted that the only reason given to him for that assumption was, “that [was] the intent of Mr. Noel.” Torres and PMI, meanwhile, reminded the jury that on October 19, 1987, the stock market fell dramatically. Defense counsel revealed the effect the fall had on the stock of National Pizza, Inc., a company similar to PMI, which declined from $16 to $9 per share in the downturn. Thus, the defense argued Noel’s damages model was based on a convenient but unsupported (except by his own testimony) assumption that he would have sold all of his PMI stock before October 1987, when the price likely would have fallen.
More pertinent to the pre-1981 financial statements, tíre defense attacked Noel’s claim for $4.7 million in “earnings appreciation” on his lost proceeds. First, Torres and PMI challenged the legal basis for the claim, describing it as a veiled attempt to recover prejudgment interest before the claim was liquidated. Noel convinced the district court to permit him to argue for “earnings appreciation” damages.
Having lost on the initial admissibility question, the defendants challenged the facts and assumptions underlying Noel’s claim for $4.7 million in lost “earnings appreciation.” As an estimated rate of return on Noel’s $7.1 million in claimed lost proceeds, Allen used the Standard & Poor’s 500 index (S & P 500), explaining that the S& P 500 was a general indicator of stock market performance. Allen therefore assumed that Noel would have invested all of his $7.1 million and fared at least as well as the S & P 500 from 1987 to the present. According to Allen, the S & P 500 recorded increases of 16.6 percent in 1988 and 31.7 percent in 1989 (although it is not clear whether those were yearly, quarterly, or monthly figures).
The defendants countered by introducing evidence of Noel’s personal track record on investments, which was not as successful as the S & P 500. The track record included his pre-1981 financial statements as well as financial information from 1987 to the present. For example, Noel lost $357,000 investing in a T.J. Cinnamons franchise between 1988 and 1990. The defense also suggested that Noel lost $3 million in oil-based securities when oil prices dropped. Noel’s financial statements dating from 1972 provided a histoiy of Noel’s personal investment tendencies. These financial statements, the defendants contend, “showed a history of investments in race horses, real estate, vacation homes, [and] oil and gas ventures, not in stocks represented by the Standard & Poor’s 500.” Defense counsel urged the juiy to “follow [Noel’s] track record and investments” rather than the S & P 500 in considering any “earnings appreciation” damages.
An examination of Noel’s financial statements supports the defendants’ assertion that he invested in many things other than S & P 500 stocks, and had mixed results. We conclude that the district court did not abuse its discretion in finding Noel’s pre-1981 financial statements relevant and in admitting his financial history. Noel does not challenge the accuracy of the information contained in his financial reports. He had ample opportunity to argue to the jury what it should and should not consider important. The issue of whether “earnings appreciation” is distinguishable from prejudgment interest and recoverable as damages is not before us.
Jury Instructions on Damages
Noel argues that the district court erred in instructing the jury on damages. He identifies two specifics: the district court’s refusal to give (1) his requested instruction that tortfeasors must take their victims as they find them (a “thin-skull” instruction) and (2) the full version of his requested instruction on mitigation of damages. See 4 Harper, James & Gray, The Law of Torts § 20.3 n.25 (2d ed. 1986) (noting that the damages principle being discussed is commonly called the thin-skull rule).
The rules governing the standard for our review of alleged errors in jury instructions are well established:
“It is the duty of the trial court to properly instruct the jury upon a partys theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to tire appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on tire law governing tire case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and tire jury could not reasonably be misled by them, tire instructions will be approved on appeal.” Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 353, 837 P.2d 330 (1992).
“A court should not by its instructions unduly emphasize one aspect of a case.” Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991).
Noel first challenges the district court’s refusal to give the following “thin-skull” instruction, which he requested:
“The law requires drat one who causes injury to anodrer must accept tire injured person’s condition at the time and must accept liability for all consequences flowing from plaintiffs’ injury even though the injury was rendered more severe by the condition of tire person injured.”
Noel contends that the above instruction is a correct statement of Kansas law and was “essential” to his case. The defendants assert (1) Texas law governs; the instruction is an incorrect statement of Texas law, and (2) the instruction has no application to this case.
We need not address the choice of law question. The instruction is not applicable to the case at bar.
Noel claims the instruction was necessary “to cure defendants’ improper contentions and arguments . . . directed toward the irrelevant and prejudicial evidence relating to Noel’s financial condition and investment history.” We have previously noted that much of the so-called “irrelevant and prejudicial evidence” was admitted without objection and that, in any event, it was relevant to the issue of damages. Noel’s contention therefore starts from the erroneous assumption that irrelevant and prejudicial evidence of his financial history was admitted.
As an example of alleged “improper” argument, Noel cites statements in closing argument in which defense counsel suggested that Noel’s personal investments “caused his problem,” and that “[w]hen he sold his stock in 1990 he did it for his own reasons.” Although Noel now contends that those comments were improper and required a “cure” in the form of his thin-skull instruction, Noel did not object when they were made. Moreover, Noel’s request for the thin-skull instruction came before closing arguments. Thus, the argument that the thin-skull instruction was necessary to “cure” an improper statement in closing argument is not persuasive.
Noel further asserts that defense counsel’s comments were an improper attempt by Torres and PMI to escape liability by dictating how Noel should have used his personal funds. He cites Collins v. Morris, 97 Kan. 264, Syl. ¶ 4, 155 Pac. 51 (1916), and Barker v. Railway Co., 94 Kan. 61, 66, 145 Pac. 829 (1915). Both Collins and Barker discuss the appropriate measure for tortious damage to trees. Under Collins and Barker, the wrongdoer may not avoid damages by arguing that the victim’s real estate as a whole is just as valuable without the trees as it was with them. What Noel claims to have lost is the right to sell his PMI shares in the public market. He does not claim that the right to sell his shares publicly had any distinct value separate from the value of the shares themselves— unlike trees that have value separate from the real estate’s value as a whole. Simply put, Collins and Barker have no application here, factually or legally.
Noel’s thin-skull instruction states that a wrongdoer “must accept the injured person’s condition at the time.” (Emphasis added.) Noel’s citation of Knoblock v. Morris, 169 Kan. 540, 545-46, 220 P.2d 171 (1950), as legal precedent for the instruction suggests that the instruction refers to a victim’s preexisting condition at the time of injury. Noel’s injury from the alleged wrongdoing of Torres and PMI would have been complete in 1986, when the public offering failed. Yet, Noel contends that the thin-skull instruction was necessary to counteract evidence and arguments about Noel’s subsequent financial troubles and transactions in 1990. There is no indication Noel had any preexisting financial problems in 1986, at the time of his injury. Noel’s contentions about why the instruction was required do not correspond with the focus of the instruction. The trial judge did not err in refusing to give the instruction.
Mitigation of Damages Instruction
Noel next contends that the district court erred in refusing to give the full version of his requested instruction on mitigation of damages. Noel requested a two-paragraph instruction, but the district court used only the first paragraph. The jury received the following instruction, which was essentially verbatim from the first paragraph of Noel’s requested mitigation instruction:
“The law requires a party to mitigate his damages. Mitigation of damages requires an injured party to make reasonable efforts to minimize his harm or loss. If an injured party fails to make a reasonable effort and his harm from injury [is] greater than it would have otherwise been, he can not recover damages for the preventable loss. A party does not have to obtain the highest price in mitigating his damages, but the party need only act reasonably and prudently in his mitigation efforts.”
The second paragraph of Noel’s requested instruction, which was not given, stated:
“The plaintiff Noel contends that by 1990 his financial condition was such that he was forced to sell virtually all plaintiffs’ stock in PMI at a price below its true value and the anticipated public offering price to avoid probable bankruptcy and mitigate plaintiffs’ losses. Such a sale would not bar plaintiffs’ recovery, but credit must be given for sale proceeds actually received.”
Noel again claims that the rejected paragraph was “essential” to counteract “the improper personal attack on plaintiff carried out through the reception of irrelevant and highly prejudicial evidence.” Noel does not identify which attacks were improper or which evidence was irrelevant and highly prejudicial; presumably, he refers to the evidence of his financial condition and investment histoiy which has been previously discussed in the opinion. Noel complains that without the second paragraph, the jury may have concluded that the 1990 sale of his PMI stock barred recovery for his 1986 damages. There is no way to determine from the jury’s verdict whether it actually followed that reasoning in awarding Noel zero damages.
The defendants contend that the district court correctly refused to give Noel’s second requested paragraph because it “improperly highlighted or placed an emphasis on [plaintiffs’] version of the facts.” We agree. Specifically, defendants disputed Noel’s factual assertion that he was “forced” to sell his PMI shares to avoid probable bankruptcy. They contend that Noel was not forced to sell his PMI shares, but elected to liquidate his shares rather than lose real property to foreclosure. See Stipulated Fact No. 18.
“Instructions should be avoided that are slanted, argumentative, or formulated to particularize one aspect of a case.” Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 854, 494 P.2d 1113 (1972).
While we question Noel’s characterization of his 1990 sale as “mitigation,” the issue of whether such characterization was proper is not before us. The district court did not err in refusing to instruct the jury on the second requested paragraph.
The Verdict
Noel advances several arguments in support of his contention that the jury’s verdict of zero damages was inconsistent with its finding that the defendants breached fiduciary duties, and contrary to the evidence and the instructions. Noel raised this contention in a motion for new trial under K.S.A. 60-259, which was denied. Subject to limited exceptions that do not apply here, the decision of whether to grant or deny a new trial rests in the sound discretion of the district court and will not be reversed on appeal unless a clear abuse of discretion is shown. See Peoples Bank of Pratt v. Integral Ins. Co., 251 Kan. 809, Syl. ¶ 1, 840 P.2d 503 (1992).
Noel first asserts estoppel. Torres and PMI claimed in the federal litigation against Pizza Hut and PepsiCo $57 million in damages because of the failed public offering. Noel contends Torres and PMI should be estopped in the case at bar from claiming that Noel suffered no damages. Noel does not state how this argument fits into his claim that he should have been granted a new trial. He did not raise the estoppel contention in the district court in support of his new trial motion. A point not presented below generally will not be considered for the first time on appeal. Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993). Although the question is not preserved for appeal, we observe that the assertion is not well taken. A damage claim by PMI and Torres against Pizza Hut and PepsiCo is not an admission that they, PMI and Torres, damaged Noel.
Noel next contends that the jury verdict of zero damages was “contrary to all of the evidence as to the value of PMI shares if a public offering could have been carried out; and is in conflict with the verdict on liability.” The evidence he cites as contrary to the verdict concerns the predicted price of PMI shares in the initial public offering and secondary market. He contends there is “no evidence in the record that the [initial public offering] price would have been less than $15.00 per share or the aftermarket price less than $15.00 — $27.25 per share.”
Noel seems to assume, at this point, that the jury awarded him no damages based on a finding that PMI shares would not have been as valuable in a public offering as he claimed. As the defendants contend, however, the verdict could be explained in other ways. The jury may have concluded that: (1) Noel failed to prove that the breaches of fiduciary duty caused the failure of PMI to go public and, thus, failed to proved that the defendants caused his damages; (2) Noel offered insufficient proof of his alleged damages; or (3) Noel's 1990 sale of his PMI stock was an unreasonable act of “mitigation” according to his own damages model and, had he acted reasonably, he would have suffered no damages. We will consider these possibilities briefly.
The verdict form asked the jury to answer the following questions:
(1) whether “a fiduciary relationship existed between Wallace R. Noel and Defendants regarding a public offering of PMI stock?”;
(2) whether “defendants breached any fiduciary duty owing to plaintiffs relating to ... : The ‘Texas Swap' transaction? . . . The Restaurant Associates, S.A. Fineriy transaction? . . . The accounting methods utilized and the subscription and buy-back agreements?”; and
(3) “[w]hat amount of damages, if any, do you find were sustained by the Plaintiffs as a result of the Defendants' conduct regarding the public offering?”
The jury answered ‘Tes” to the first question and to each part of the second question, and wrote in “$0” in response to the third question. The jury was not asked to make specific findings on questions of causation, proof of damages, or whether Noel’s 1990 sale was reasonable. The only question on the verdict form incorporating causation was, “What amount of damages, if any, do you find were sustained by the Plaintiffs as a result of the Defendants’ conduct regarding the public offering?” The jury responded, “$0.”
“Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved in that manner.” Brunner v. Jensen, 215 Kan. 416, Syl. ¶ 6, 524 P.2d 1175 (1974).
Torres and PMI contended at trial and now on appeal that Noel failed to prove causation between the defendants’ breaches of fiduciary duty and PMI’s failure to go public. In support, the defendants pointed to, among other things, the testimony of Steven S. Reinemund, president and chief executive officer of Pizza Hut at the time PMI attempted to go public. Reinemund said that Pizza Hut “never had any intentions of ever approving” PMI’s proposed public offering. Thus, the defendants contend that any breaches of fiduciary duty that they may have committed with respect to the Texas Swap, the Finerty transaction, and the accounting methods were not the cause of PMI’s failure to go public.
Torres and PMI plainly emphasized “no causation” to the jury during closing argument. Defense counsel argued that “the swap didn’t have anything to do with PMI not going public in 1986. The Finerty transaction had nothing to do with PMI not going public in 1986 .... and on and on.” Reinemund’s testimony offers at least some support for that line of argument, and that argument drew no objection from the plaintiffs. “Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support, or tend to support, the special findings, verdict, and judgment below, and disregards any conflicting evidence or other inferences which might be drawn therefrom.” Brunner, 215 Kan. 416, Syl. ¶ 4. Other PMI shareholders, including Torres, sold their shares two years after Noel’s sale to Pizza Hut and PepsiCo for over $21 per share. The jury’s verdict may be explained based on a finding of no causation.
Torres and PMI further contend that the jury may have found insufficient evidence of Noel’s damages or a failure by Noel to reasonably mitigate his damages. These contentions need not be considered in detail since we have already found one plausible explanation for the jury’s verdict. See Brunner, 215 Kan. 416, Syl. ¶ 6.
Finally, Noel contends that because the district court was surprised at the zero-damages verdict, the court was required to set the verdict aside and grant a new trial. After the verdict was announced and the jury was dismissed, the ferial judge stated, “I would expect even defense counsel was surprised by [the zero-damages finding],” and that he would add the verdict “to the list of things that mystify me in this life.” Noel has not directed our attention to any authority holding that a district court has a duty to set aside a verdict that comes as a surprise. The district court expressed no disapproval of the verdict, only surprise. Noel moved for a new trial, which was denied.
Noel has failed to show an abuse of discretion by the district court’s refusal to grant a new trial based.on the jury’s zero-damages verdict.
Third-Party Beneficiary Claim
Noel argues that the district court erred in granting summary judgment for defendants on his third-party beneficiary contract claims. The district court explained that while some of Noel’s allegations under his contract claims were pertinent to his other legal theories, Noel had no actionable rights as a third-party beneficiary of the 1976 and 1981 agreements.
In reviewing a grant of summary judgment, we apply the same standards as the district court. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). All evidence and inferences to be drawn therefrom must be viewed in the light most' favorable to the non-moving party. Summary judgment should be upheld only if there is no genuine issue as to any material fact and die moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Kerns, 255 Kan. at 268. Our review of the record and of the parties’ contentions convinces us that summary judgment was a proper pro cedural vehicle for resolving the third-party beneficiary claim. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed).
Noel first contends that the district court failed to follow the “opinion and mandate” in Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 234-35, 805 P.2d 1244, rev. denied, 248 Kan. 996 (1991) (Noel I). In Noel I, the Court of Appeals reviewed the district court’s dismissal of the third-party beneficiary claim on a motion to dismiss under K.S.A. 60-212(b)(6). Examining only the well-pleaded facts and allegations, Noel I concluded that Noel’s petition stated a claim under a third-party beneficiary theory and reversed the district court. 15 Kan. App. 2d at 237.
Contrary to Noel’s suggestion, a prior ruling that dismissal of his third-party beneficiary claim under K.S.A. 60-212(b)(6) was improper did not preclude the district court from later entering summary judgment against that claim under K.S.A. 60-256(c). See 10 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2713, p. 604 (1983) (“The ruling on a motion to dismiss for failure to state a claim for relief is addressed solely to the sufficiency of the complaint and does not prevent summary judgment from subsequently being granted based on material outside the complaint.”). The summary judgment was entered after substantial discovery. The district court had the benefit of reviewing the 1976 and 1981 agreements in considering the summary judgment motion. The district court did not act in conflict with the mandate of Noel I.
Noel next contends that summary judgment was improper, relying on the following language, which appeared in both the 1976 and 1981 agreements.
“PMI may issue and/or sell or otherwise lawfully issue additional shares of its stock from time to time and the shareholders of PMI, other than Torres, may sell, assign or transfer their PMI shares without any restriction imposed by Pizza Hut.” (Emphasis added.)
The problem with Noel’s contention, as the defendants point out, is that his first and second claims for relief do not allege a breach of any obligation contained in the 1976 or 1981 agreements. Noel contends that: (1) Pizza Hut promised in the 1976 and 1981 agreements to allow PMI to go public; (2) the promise created a corresponding right in the shareholders to take PMI public; and (3) Torres and PMI, under Torres’ command, destroyed the shareholders’ right (to take advantage of Pizza Hut’s, promise that PMI could go public) by engaging in certain transactions. Nowhere in the agreements at issue between Pizza Hut and PMI, however, does PMI assume any obligation to its shareholders to go public. The 1976 and 1981 agreements speak of PMI’s anticipated public offering only as a “possible” event. The defendants thus contend that Noel’s claim based on some breach of the 1976 and 1981 agreements is misguided.
Noel’s response in his reply brief undermines his third-party beneficiary theory. He contends:
“The fact that the 1976 and 1981 Amendments express no obligation on the part of defendants to carry out a public offering cannot provide a defense since the obligation of defendants to conduct a public offering arises from the agreements, plans and undertakings of Torres to the original shareholders entered into when PMI was formed and the franchise rights were transferred. It was unnecessary to include in the 1976 and 1981 Amendments any obligation on die part of defendants to conduct a public offering because that obligation had already been expressed and agreed upon between Torres and the original shareholders. It existed independently of the written agreements with Pizza Hut."
Noel’s PMI-formation argument reveals that to the extent Noel asserts the existence and breach of any contractual rights owing to him concerning PMI’s failed public offering, such rights arose “independently of the written agreements with Pizza Hut.” Noel’s proper action in contract, if any such contract existed, would have been against Torres based not on the 1976 and 1981 agreements, but on Torres’ alleged promise to take PMI public as an inducement for and in consideration of Noel’s investment. However, Noel never alleged the existence or breach of any such contract in his four amended petitions or in his pretrial questionnaire. The district court did not err in granting summary judgment in favor of Torres and PMI on Noel’s third-party beneficiary claims.
Punitive Damages
Noel’s final contention is that the district court erred in denying him leave to amend his petition to add a claim of punitive damages. The procedure for claiming punitive damages is set forth in K.S.A. 60-3703 and was recently considered in Fusaro v. First Family Mortgage Corp., 257 Kan. 794, 897 P.2d 123 (1995).
K.S.A. 60-3703 requires that a plaintiff first obtain permission from the court before amending his or her pleading to include a claim for punitive damages in a tort action. The motion must be filed “on or before the date of the pretrial conference held in the matter.” K.S.A. 60-3703. The district court may allow the amendment if the plaintiff is able to establish a “probability that the plaintiff will prevail” on the punitive damages claim at trial. K.S.A. 60-3703.
Before the pretrial conference, Noel filed a motion for leave to file a fourth amended petition that would have added a claim for punitive damages under his fifth claim for relief, which alleged fraud in the initial distribution of PMI stock. Noel’s motion did not seek punitive damages in connection with his third and fourth claims for relief, which alleged breaches of fiduciary duty in connection with the failed public offering.
The district court denied Noel’s motion to amend, holding that it was “not persuaded (under K.S.A. 60-3703) of the probability Plaintiff will prevail upon a claim of punitive damages” under his claim of fraud on the initial stock distribution.
During trial, Noel twice moved to amend the pleadings to claim punitive damages based on the third and fourth claims for relief. The district court denied both motions without explanation. On appeal, Noel contends there was sufficient evidence concerning his third and fourth claims to establish a probability he would prevail on a claim of punitive damages.
The defendants contend that Noel never sought leave to claim punitive damages concerning his third and fourth claims and that if he did, such an attempt was untimely. We reason that Noel’s motion to amend his pleadings during trial sufficiently referenced his third and fourth claims; however, we agree that the motion was untimely. K.S.A. 60-3703 expressly provides that a motion to amend the pleadings to claim punitive damages must be made “on or before the date of the pretrial conference.”
Noel argues that under Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶ 13, 582 P.2d 1136 (1978), he was entitled to claim punitive damages under his breach of fiduciary duty claims. Noel did not seek leave to assert the claim until two weeks after trial had begun. His claim was too late. The breach of fiduciary duty claim of punitive damages was available when Noel made his timely motion to seek punitive damages on his fraud in the distribution claim (his fifth claim). Nevertheless, he waited until trial was well under way before attempting to claim punitive damages for breach of fiduciary duty.
Noel argues that because he filed a timely motion to seek punitive damages, the district court had the power to reconsider its ruling in response to the motion renewed at trial. Noel relies on Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan. App. 2d 396, 398, 853 P.2d 1175 (1993). Burrowwood is distinguishable. In Burrowwood, there is no indication the plaintiffs enlarged or expanded their motion to claim punitive damages beyond what was timely requested. In the case at bar, Noel’s untimely motion to seek punitive damages on his third and fourth claims (breach of fiduciary duty resulting in the failed public offering) cannot be said to have been included in his timely motion for punitive damages based on alleged fraud in the initial distribution of PMI stock and in an alleged “freeze-out” plan by Torres. Thus, Noel’s timely motion for punitive damages on some claims does not rescue his untimely motion concerning other claims, which were based on different facts and different legal theories.
The only question remaining is whether the district court erred in denying Noel’s motion for leave to claim punitive damages on his fifth claim for relief, which alleged fraud in the initial distribution of PMI stock. Because of the jury’s verdict, however, it is not necessary to consider whether Noel met his burden of probable success under K.S.A. 60-3703. The jury found no fraud concerning the initial distribution of PMI stock.
The defendants cross-appeal, contending that summary judgment should have been granted in their favor on all claims, raising questions of standing and statutes of limitation, among other things. Our affirmance of the district court’s judgment disposes of the cross-appeal issues.
Affirmed. | [
112,
124,
-32,
-2,
27,
96,
58,
-102,
96,
-62,
39,
-41,
-39,
-63,
4,
111,
-43,
117,
64,
-14,
-41,
-77,
7,
72,
-38,
-77,
-104,
-76,
-16,
111,
102,
-42,
-51,
36,
-126,
87,
-26,
-109,
-45,
-98,
10,
52,
-70,
-24,
-39,
-108,
-76,
91,
16,
79,
49,
124,
-13,
44,
27,
-54,
72,
46,
-3,
63,
-63,
-7,
43,
-124,
127,
22,
-94,
4,
-66,
75,
-48,
46,
80,
-79,
33,
-32,
82,
-74,
-126,
116,
43,
-87,
-116,
32,
98,
-127,
21,
-25,
90,
-120,
46,
79,
29,
-121,
-13,
24,
9,
101,
-67,
-97,
104,
4,
-122,
-2,
-50,
20,
25,
-19,
3,
-50,
-44,
-93,
-99,
116,
28,
-117,
-1,
-73,
-112,
116,
-52,
-96,
92,
99,
62,
-127,
-113,
-74
]
|
The opinion of the court was delivered by
Holmes, C.J.:
The natural father of M.M.L., a minor, appeals in a child in need of care case from an order of the district court placing M.M.L. in long-term foster care. He argues the best interests of the child standard in K.S.A. 38-1563(d) violates his constitutional right to custody of his child absent a finding of unfitness. The case was transferred to the Supreme Court pursuant to K.S.A. 20-3017.
In compliance with the intent of Supreme Court Rule 7.043 (1994 Kan. Ct. R. Annot. 42), the natural father will be referred to as appellant or Michael and the natural mother will be referred to as J.C.
This case, originally filed pursuant to the Kansas Code for Care of Children, K.S.A. 38-1501 et seq. alleging M.M.L. was a child in need of care, has had a long and tortured history. Despite extensive efforts by Michael, the courts, counsel, various social and professional workers, and others involved in this case, the results have been far from satisfactory. It appears that much of the original difficulty encountered in attempting to reach a solution to the conflicting claims and positions of the parties arises from the long-term animosity which has existed between Michael and J.C. Apparently, J.C. has taken every opportunity to criticize and demean Michael to M.M.L. and has gone to great lengths to poison M.M.L. against her father. On the other hand, M.M.L. complains that her father constantly criticizes and says bad things about her mother. Even though J.C. has moved to Texas and has apparently abandoned any interest in these custody proceedings or in her daughter, M.M.L. maintains a strong bond and feeling for her mother.
Due to the nature of the action the facts, as determined from a greatly abbreviated record, will be set forth in some detail.
Michael and J.C. were married in 1974, and one son, now an adult, was bom to the marriage. The couple was divorced in 1979; however, they reestablished a relationship and lived together until sometime in 1984, apparently as residents of the Kansas City, Mis souri, area. M.M.L. was bom during this period on January 4,1981. In mid-1984 M.M.L. and her mother left the home, and at some later date J.C. married M.C., whose name is also Michael. The coincidence of both the father and stepfather having the same first name, Michael, creates some confusion in attempting to get a clear picture of some of the events described in the record. In an attempt to avoid further confusion, we will refer to the father of M.M.L. as Michael and the stepfather as M.C. •
In 1985 Michael filed a proceeding in Missouri to obtain custody of both children. Soon thereafter M.M.L. alleged she had been sexually abused by "Michael” or by one of her mother s boyfriends. As it eventually turned out, Michael, the father, was absolved of any sexual abuse of M.M.L., although expert testimony did establish that she had, in all probability, been abused by someone, either M.C. or one of the other friends of J.C.
Sometime in 1985 Michael moved to the state of Washington and lost track of his children. His custody suit was dismissed when he failed to show up for the hearing. Thereafter M.M.L. and her mother moved to Great Bend. Despite his efforts to obtain information about M.M.L from her maternal grandmother, Michael was unable to obtain any information about her whereabouts or about her welfare. Michael moved back to Kansas City in 1988 or 1989, to Georgia in 1989, and back to Kansas City in late 1991 or 1992. In late 1990 or early 1991 Michael learned by chance that J.C. and M.M.L. were in Great Bend. He has been attempting to gain custody ever since.
On September 6, 1990, M.M.L. was placed in the temporary custody of the Department of Social and Rehabilitation Services (SRS) based on allegations that she had been sexually abused by M.C. She was placed by SRS in a foster home in Great Bend, where she has remained since. On January 17,1991, the trial court found by clear and convincing evidence that M.M.L. had been sexually abused by her stepfather and adjudicated her a child in need of care. At that point Michael had not had contact or a relationship with M.M.L. for approximately five years. At a dispositional hearing held March 12, 1991, the court found that placing M.M.L. with her father was not a viable option at that time and denied him visitation rights so that M.M.L.’s therapist could prepare her for future visitation. It was at about this time that J.C. moved to Texas and apparently abandoned any interest in M.M.L. or in any further court proceedings in her behalf.
As die case progressed, review hearings were held and, in early 1992 Michael was granted visitation rights. Initially the visits were limited to supervised visits in Great Bend, but eventually Michael was granted unsupervised visits at his home in Kansas City for several days at a time. Throughout the proceedings, Michael did everything requested of him by the court. Various examinations indicated (1) he does not portray sexual offender characteristics; (2) he has never sexually abused M.M.L.; (3) he exhibits no psychological problems impairing his ability to care for his daughter; and (4) he shows no signs of alcoholism or drug abuse. He has attended alcohol information school, effective parenting classes, anger-control counseling, counseling for parents of sexually abused children, individual counseling, and joint counseling with M.M.L. Home studies have been performed and the latest done in July 1994 recommended M.M.L. be placed in Michael’s home with supervision.
Despite Michael’s efforts, M.M.L. maintained throughout the proceedings that she did not want to live with him. Although she was initially excited and hopeful about a relationship with her father, she became frightened and disillusioned as the visits progressed. From the outset of the case, M.M.L. saw a psychologist, Dr. Kohrs. M.M.L. repeatedly expressed two concerns about her father’s behavior to Dr. Kohrs, which Dr. Kohrs believed were based on M.M.L.’s observations and not on any “predictions” given to M.M.L. as a child by her mother. First, M.M.L. described “a pattern of arbitrary and provocative hostility” by her father, such as verbally abusing and continually provoking arguments with his mother to whom M.M.L. is attached, making exaggerated and hostile complaints in public places, teasing her cousins unnecessarily, and having conflicts with her aunts and foster mother. Michael’s mother and his sisters (the aunts) deny these allegations. M.M.L. does not trust him and is afraid he will sexually abuse her because he gets so “ 'pushy and mad.’ ”
Second, M.M.L. was concerned with her father’s use of alcohol. Although he acknowledges occasional use of alcohol, he denies any problem, and various psychological tests and counseling bear that out. M.M.L.’s emotional .and psychological concerns about sexual abuse and excessive use of alcohol appear to be a result of her early childhood experiences with her stepfather and one or more of her mother’s other male companions.
M.M.L. seems to have established a good relationship with her paternal grandmother and her aunts, all of whom reside near Michael in the Kansas City area. The grandmother lives next door to Michael, and she and Michael’s sisters are supportive of his efforts to obtain custody of M.M.L. They are also available to assist Michael in caring for M.M.L.
Dr. Kohrs believed M.M.L. tried to focus on the positive aspects of the relationship, and M.M.L. likes it when Michael is nice to her and takes her bowling. She feels good about herself when she cooks meals for him and has appreciated getting to know her relatives in the Kansas City area. However, based on M.M.L.’s concerns, Dr. Kohrs recommended that M.M.L. remain in the foster home in Great Bend and continue visitation with her father and relatives in Kansas City. She was concerned “that if the situation is this problematic while being monitored by SRS and the Court, what the quality of home life would be if there were no scrutiny by the Court.”
In contrast, M.M.L. was firmly attached to the foster care home, describing it as a place where she was safe, secure, and part of a family. At an earlier hearing, a counselor testified M.M.L. would suffer grief, loss, and confusion about her identity if she had to move away from the foster home and that moving her would add to the confusion and chaos in her life. Also, at this hearing, Dr. Kohrs testified the optimum placement was in the foster home because the children were involved in school and community activities and the relationship was not filled with conflict like the one with Michael.
On the other hand, professionals in the Kansas City area who have counseled with Michael over the years of these proceedings and with both Michael and M.M.L. on the occasions when she visits in Kansas City reach a diametrically opposite conclusion. They recommend that M.M.L. be placed in her father s custody. From their reports and the testimony of Michael, M.M.L. seems to be happy and well adjusted when with her father. She voiced no serious complaints to the Kansas City counselors and professionals. However, upon returning to Great Bend she apparently tells a totally different story and has consistently maintained she will not live with her father. The record includes several letters written by M.M.L. to the court in which she voices her desire to stay with her foster parents and complains bitterly about her father’s actions and appearance.
On June 8, 1993, Michael moved for an order placing M.M.L. in his custody. He alleged that despite his compliance with all court orders, SRS had refused to prepare a reintegration plan with measurable objectives and time schedules and the only reason articulated for not placing M.M.L. with him was her desire not to live with him. On June 14, 1993, the magistrate denied the motion and recommended long-term foster care placement, finding it was not in M.M.L.’s best interests to return her to the custody of her parents.
Upon Michael’s request for review of the magistrate’s ruling, the district court found in October 1993 that SRS should make an additional effort to reintegrate M.M.L. and later approved a reintegration plan. At a dispositional hearing on August 15, 1994, the district court concluded K.S.A. 38-1563 took precedence over In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994), and the best interests of the child test was the appropriate standard for the court to apply. The court found that although Michael was not an unfit parent, no close bond existed between Michael and M.M.L. despite his tremendous efforts. While reasonable efforts had been made to reintegrate M.M.L., the efforts had not been successful largely due to M.M.L.’s attitude and fears. The court believed forcing M.M.L. to live with her father could cause more emotional damage. Because a close bond existed between M.M.L. and her foster family, the court continued placement in long-term foster care with visitation to be worked out by the parties.
At the August 15, 1994, hearing the court recognized the conflicting testimony of the various therapists, counselors, psychologists, and other professionals, stating, “[W]hat we do have are recommendations from several professional people. . . . [T]hese recommendations . . . are in direct contrast to each other.” In the journal entry the court made the following findings:
“1. That the natural father is not an unfit parent.
“2. That the Court recognizes that a parent has a fundamental right to have custody of his or her child.
“3. That the Kansas Code for the Care of Children and the statutory language of K.S.A. 38-1563 supersedes or takes precedence over that fundamental right and case law, specifically In re: Guardianship of Williams, 254 Kan. 814 (1994).
“4. That pursuant to the Code for the Care of Children, upon a finding under K.S.A. 38-1563(h), that reasonable efforts have been made to prevent or eliminate the removal of the child . . . from the parent’s home, the Court can make a determination of disposition pursuant to K.S.A. 38-1563(d) based upon what is in the best interests of die child.
“5. That the Court finds that reasonable efforts have been made to reintegrate the child into the home of the natural father.
“6. That said efforts have not been successful due mainly to the attitude of the minor child.
“7. That a close daughter-father bond does not exist despite the efforts of the father to re-establish that bond.
“8. That placement of the child with the natural father could cause more emotional damage to the minor child.
“9. That a close bond between the foster family and the child exists.
“10. That placement therefore should continue in long term foster care with continuing visitation as agreed to by the parties between the father and the minor child.”
There have been literally dozens of hearings held by the court and hundreds of hours devoted to this case by dedicated judges, counsel, and professional workers in an attempt to arrive at an acceptable solution to the apparent legal and emotional conflict between Michael and M.M.L. and/or SRS. While the legal principles, applicable statutes, and constitutional arguments are not extremely difficult to resolve, it is doubtful any good solution to the dilemma facing the trial court and this court exists.
Michael asserts two issues on appeal:
“I. Whether or not K.S.A. 38-1563 is unconstitutional and violates the parental fitness doctrine announced by the Kansas Supreme Court in In re [Guardianship of] Williams, 254 Kan. 814, 869 P.2d 661 (1994).
“II. Whether or not the district court abused [its] discretion in awarding long term foster care with SRS over the objection of the natural father.”
For his first issue on appeal Michael argues K.S.A. 38-1563(d), either on its face or as applied, violates his “fundamental right protected by the 14th Amendment.” He argues that, under the parental preference doctrine reaffirmed in In re Guardianship of Williams, 254 Kan. 814, he has a constitutional right to custody of his child which may not be disturbed absent a finding of unfitness. The State and guardian ad litem argue Williams is not applicable to this case because the Kansas Code for Care of Children (Code), K.S.A. 38-1501 et seq., provides the same if not better protection than that afforded by the parental preference doctrine.
Although Michael argued to the trial court that Williams applied to his case, he did not specifically argue that K.S.A. 38-1563(d) is unconstitutional. Ordinarily, “where constitutional grounds for reversal are raised for the first time on appeal, they are not properly before the appellate court for review.” In re D.D.P., Jr., 249 Kan. 529, 545, 819 P.2d 1212 (1991). We have recognized exceptions to the general rule when the interests of justice so require. In State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982), we held:
“Although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of tire new issue is necessary to serve the interests of justice or to prevent denial of fundamental rights.”
Michael asserts the constitutional issue here is the denial of a fundamental right protected by the Fourteenth Amendment and that we should consider the constitutional issues because the district court’s ruling placed the constitutionality of the statute at issue. In addition, all parties have thoroughly briefed the issue. See Puckett, 230 Kan. at 601. We will address the issue.
It is the application of K.S.A. 38-1563(d) to the facts of this case which constitutes the crux of the arguments now before the court. K.S.A. 38-1563 provides authorized dispositions for a child found to be a child in need of care and reads, in pertinent part:
“(d) If file court finds that placing the child in the custody of a parent will not assure protection from physical, mental or emotional abuse or neglect or sexual abuse or will not be in the best interests of the child, the court shall enter an order awarding custody of the child, until the further order of the court, to one of the following:
(1) A relative of the child or a person with whom the child has close emotional ties;
(2) any other suitable person;
(3) a shelter facility; or
(4) the secretary.” (Emphasis added.)
A brief review of the pertinent statutes is in order. K.S.A. 38-1563 is part of the Code. The Code, which is based on the State’s parental power, is to be “liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state.” K.S.A. 38-1501. If the court finds by clear and convincing evidence that a child is in need of care, the court shall enter an order adjudicating the child to be a child in need of care and an order of disposition authorized by the Code. K.S.A. 38-1555; K.S.A. 38-1556. K.S.A. 1994 Supp. 38-1502(a)(3) defines a child in need of care in pertinent part as one who “has been physically, mentally or emotionally abused or neglected or sexually abused.”
Prior to entering an order of disposition, the court is required to consider “the child’s physical, mental and emotional condition; the child’s need for assistance; the manner in which the parent participated in the abuse, neglect or abandonment of the child; and the evidence received at the dispositional hearing.” K.S.A. 38-1562(c). If a child is placed outside the home and reintegration into the family is the goal, a plan shall be prepared with measurable goals and objectives. K.S.A. 1994 Supp. 38-1565(a). Progress reports are to be submitted to the court at least every six months, and a hearing shall be held if the court determines the progress is inadequate or the goals are no longer viable. K.S.A. 1994 Supp. 38-1565(b).
In the instant case all parties concede that Michael is not unfit to have the care and custody of M.M.L. It is also apparent that he has gone to great lengths to improve his parenting capabilities and educate himself in the skills necessary to raise his daughter. He has adequate physical and residential facilities for her care and also has the support of his sisters and mother, who are available to furnish family support. There has been no showing he could not furnish the “care, custody, guidance, control and discipline” contemplated by K.S.A. 38-1501.
Michael contends that K.S.A. 38-1563(d) is either unconstitutional on its face or unconstitutional as applied to the facts of this case because the best interests of the child test, contained in the statute, violates his right to due process under the Fourteenth Amendment to the United States Constitution. He asserts that the parental preference rule is the proper test and that failure to apply it denies his fundamental right to custody of M.M.L.
Michael relies heavily upon In re Guardianship of Williams, 254 Kan. 814, and Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982).
In Sheppard, Catherine and Steven Sheppard were divorced in 1977, with Catherine being awarded legal custody of their son. Prior to and during their marriage, both Catherine and her son lived with Catherine’s parents in Haysville, Kansas. Following the divorce, however, Catherine moved to Wichita while her son continued to live with her parents and attend the Haysville schools. In 1980, Catherine’s parents petitioned the court, seeking legal custody of their grandson. Although the district court found that Catherine was not an unfit parent, the court placed her son in the permanent custody of her parents. At issue was the constitutionality of K.S.A. 1980 Supp. 60-1610(b)(2), which allowed such action and provided in part: “Notwithstanding the parental preference doctrine the court may award custody of any child to such person [a third party who has had custody] if the best interests of such child will be served thereby.”
The court succinctly stated the issue as follows:
“Appellant contends that K.S.A. 1980 Supp. 60-1610(b)(2) violates the due process clause because it destroys the parental preference doctrine and allows a third party to take custody of a minor child even though the natural parent is fit. That is the situation before us: The court found the mother fit, but granted custody of the child to the grandparents, finding that such custody would be in the best interests of the child.” 230 Kan. at 149.
In reversing the district court’s order, this court stated:
“The United States Supreme Court recently recognized the fundamental nature of the relationship between parent and child in two cases, both of which involve the rights of natural parents of illegitimate children: Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), and Quilloin v. Walcott, 434 U.S. 246, 255, 54 L.Ed.2d 511, 98 S.Ct. 549, reh. denied 435 U.S. 918 (1978). In the latter case .the court said:
We have little doubt that the Due Process Clause would be offended “[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ ”
“It is clear under our decisions and those of the United States Supreme Court that a natural parent’s right to the custody of his or her children is a fundamental right which may not be disturbed by the State or by third persons, absent a showing.that the natural parent is unfit. As we noted in In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), a parent’s right to the custody, care, and control of his or her child is a fundamental liberty right protected by the Fourteenth Amendment of the Constitution of the United States.
“The statute under consideration takes away that right. Fitness of a parent is no longer the criterion. If the trial court determines that the best interests of the child will be served by placing it with third persons, the court may do so. The parent need not consent, and he or she may be perfectly fit, willing, and able to care for and raise the child. No exceptional circumstances need exist.
“. . . [The natural mother] cannot be denied that right for the sole reason that a court determines and concludes that someone other than a natural parent might do a better job of raising the child, thus furthering his ‘best interests.’
“What we hold here is simply this: that a parent who is not found to be unfit, has a fundamental right, protected by the Due Process Clause of the United States Constitution, to the care, custody and control of his or her child, and that the right of such a parent to custody of the child cannot be taken away in favor of a third person, absent a finding of unfitness on the part of the parent. We hold that K.S.A. 1980 Supp. 60-1610(b)(2), which destroys that fundamental right, is violative of the Due Process Clause and therefore unconstitutional.” 230 Kan. at 150-54. (Emphasis added.)
In re Guardianship of Williams, 254 Kan. 814, involved an action by a natural mother to terminate a voluntary guardianship established for her minor child at a time when the mother was experiencing financial and emotional problems. The guardian, who had become attached to the child, opposed the termination, alleging it would be in the child’s best interests for the guardianship to be continued. In Williams the court reviewed at length the parental preference doctrine as applied in Kansas and die fundamental constitutional rights of natural parents to custody of their children absent a finding of unfitness. The court stated:
“The best interests test was stated in Parish v. Parish, 220 Kan. 131, 132, 551 P.2d 792 (1976), as follows: ‘In determining the right of custody of children between parents, the primary consideration is the best interest and welfare of the children, and all other issues are subordinate thereto.’ See Patton v. Patton, 215 Kan. 377, 524 P.2d 709 (1974); Dalton v. Dalton, 214 Kan. 805, 522 P.2d 378 (1974); Moran v. Moran, 196 Kan. 380, 411 P.2d 677 (1966). The Kansas courts have long applied the best interests of the child test in resolving custody disputes between two fit parents.
“On the other hand, it has long been the rule that the parental preference doctrine prevails when the dispute is between a parent and a third person, unless the parent is found to be unfit. The rule is succinctly stated in Christlieb v. Christlieb, 179 Kan. 408, 409, 295 P.2d 658 (1956), as follows:
‘[A] parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.’
“The Kansas Supreme Court has held that child custody is a fundamental right of a parent, protected by the due process clause of the Fourteenth Amendment. In Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), the court declared as unconstitutional a statutory provision which required the court to apply the best interests test instead of the parental preference doctrine in certain parent-nonparent custody disputes. . . .
“At the root of the parental preference doctrine is the recognition in Kansas that public policy deems the doctrine as being in the best interests of the child. In In re Kailer, 123 Kan. 229, 255 Pac. 41 (1927), the natural father of eleven-day-old twins entrusted the care of the children to his brother and sister-in-law. The natural mother had died and the father was unable to properly care for the newborn infants. Several years later he sought to regain custody of the children. This court stated:
‘[T]he welfare of children is always a matter of paramomit concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where die parents are dead, or where they are unfit to be intrusted with the custody and rearing of tiieir children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of die parents themselves.’ 123 Kan. at 231.
“The best interests of the child test, which is asserted here by [the child’s guardian], has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. However, absent highly unusual or extraordinary circumstances it has no application in determining whether a parent, not found to be unfit, is entitied to custody as against a third-party nonparent. As stated in In re Eden, 216 Kan. 784, 786-87, 533 P.2d 1222 (1975):
‘The cases where we have held the “best interests” test applicable were all cases where the dispute was between parents. [Citations omitted.] Where, as here, die dispute is between strangers and a natural parent who is not unfit and who is able and willing to care for the children, the parent’s right must prevail. This is so even though the trial court might feel that it would decide otherwise if free to consider only the ‘best interests’ of die children, apart from the benefits to be derived from the love and care of the natural parent.’ ” 254 Kan. at 819-27.
In concluding, the court held:
‘We adhere to die rule that absent highly unusual or extraordinary circumstances die parental preference doctrine is to be applied in a custody dispute over minor children when die dispute is between a natural parent who has not been found unfit and a nonparent. Likewise, we adhere to the rule that the best interests of the child is the appropriate standard to be applied in custody disputes between parents.” 254 Kan. at 828.
The State argues at length that Michael’s fundamental constitutional rights must give way to the best interests of the child test set forth in the statute because actions under the Code are deemed to be taken and done under the parens patriae doctrine or parental power of the State. It also argues that because M.M.L. was found to be a child in need of care by clear and convincing evidence, Michael’s due process rights were adequately protected.
The State contends that the long line of Kansas cases recognizing the parental preference doctrine as being the public policy of Kansas are distinguishable because those cases primarily involved a dispute between a parent and a nonparent and were not based upon the State’s interest under the parental power of the State. While we recognize that the State’s parens patriae interest in protecting the welfare of children may take precedence over the rights of the parents, such power only becomes applicable when there is a clear showing that the welfare and safety of the child require such extreme action.
In In re Woodard, 231 Kan. 544, 646 P.2d 1105 (1982), the court was faced with determining the sufficiency of publication service in an action to sever parental rights. While the present case does not involve any attempt to sever Michael’s parental rights, the court’s discussion of the parens patriáe doctrine in Woodard is informative. The court stated:
“The United States Supreme Court and our own state appellate courts have recognized repeatedly that parental rights are fundamental, substantive rights not to be meddled with absent a compelling countervailing protection interest. See Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981); Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981); In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978).
“On the other hand, the State’s parens patriae interest in protecting the welfare of its children must take precedence over the rights of the parents when the welfare of the child requires such a determination. In Cooper, Justice Fromme summarized the balancing of the child’s welfare against the parents’ rights as follows:
‘This court has long recognized the State’s interest in protecting its children and assuring they receive proper care. State ex rel. O’Sullivan v. Heart Ministries, Inc., 227 Kan. [244, 253, 607 P.2d 1102 (1980)]; Murphy v. Murphy, 196 Kan. 118, 122, 410 P.2d 252 (1966). In the State’s exercise of its parens patriae powers, the child’s best interests are always the paramount consideration. In re Nelson, 216 Kan. 271, 276, 531 P.2d 48 (1975); In re Wheeler, 3 Kan. App. 2d 701, 703, 601 P.2d 15, rev. denied 227 Kan. 927 (1979). The parents’ rights cannot be disregarded, however, and the child’s best interests may be considered in conjunction with the parents’ rights. In re Armentrout, 207 Kan. 366, 370, 485 P.2d 183 (1971); Lennon v. State, 193 Kan. 685, 691, 396 P.2d 290 (1964). The parents’ rights are subordinate to the State’s parens patriae powers and must yield when adverse to the best interests of the child. State v. Garber, 197 Kan. 567, 572, 419 P.2d 896 (1966); Lennon v. State, 193 Kan. at 691. It is presumed that the best interests of the child are semed by the retention of the child’s custody in the natural parents. In re Armentrout, 207 Kan. 366.’ [230 Kan. 62-63.]” (Emphasis added.) 231 Kan. at 550-51.
A review of the numerous Kansas and United States Supreme Court cases involving the powers of the State under the parens patriae doctrine clearly indicates that the courts must assert a balancing test between the fundamental constitutional right of parents to the care, custody, and control of their children and the power of the State to ensure the protection and welfare of children. In balancing the interests of all parties, the best interests of the child is a factor to be considered and must be given appropriate weight. However, absent a showing that the parent is unfit or that there are highly unusual or extraordinary circumstances mandating the State’s exercise of its parens patriae powers, the rights of the parent must prevail.
In considering the constitutionality of K.S.A. 38-1563(d), certain basic principles apply:
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.’
“ ‘In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.’
“ ‘Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.’
“ ‘The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject are wholly immaterial and it is not the province nor the right of courts to determine tire wisdom of legislation touching tire public interest as that is a legislative function with which courts cannot interfere.’ ” Sheppard v. Sheppard, 230 Kan. at 148-49 (quoting City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶¶ 1-4, 598 P.2d 1051 [1979]).
We recognize the need of the State, in the exercise of its parens patriae duties, to be able to assume the care, custody, and control of a child when the welfare of the child clearly requires such action. In such circumstances, it may be said that the best interests of the child as set forth in K.S.A. 38-1563(d) is an appropriate test if certain safeguards are first met. The statute as written is overly broad and, without appropriate limitations, would be unconstitutional on its face. However, this court has long taken the position that a statute, otherwise unconstitutional, may be authoritatively construed as constitutional when appropriate safeguards or limitations are incorporated therein. See, e.g. State v. Robinson, 239 Kan. 269, Syl. ¶ 4, 718 P.2d 1313 (1986); State v. Thompson, 237 Kan. 562, 564, 701 P.2d 694 (1985).
We therefore construe the best interests of the child language contained in K.S.A. 38-1563(d) to be constitutional when applied in a child in need of care case in which the court has found by clear and convincing evidence that the parent or parents are unfit or that highly unusual or extraordinary circumstances exist which substantially endanger the child’s welfare. Absent such findings the long-standing parental preference doctrine controls.
Here, the evidence reflects that M.M.L. undoubtedly suffered sexual abuse as a child at the hands of persons other than Michael. She does have severe emotional problems which require further counseling. However, the primary basis of the trial court’s holding was that M.M.L. does not want to leave her friends and comfortable foster home surroundings in Great Bend, coupled with her professed dislike of her father. Such feelings are not unusual in children who have become attached to, and feel comfortable with, their peers, school, and other surroundings. Such feelings and wishes do not, in our opinion, constitute the highly unusual or extraordinary circumstances necessary to deprive a parent, who is not unfit and who is capable and desirous of providing the necessary care, control, and guidance of his or her child, of the custody of the child. We conclude that under the facts of this case, K.S.A. 38-1563(d), as applied, violated Michael’s constitutional rights.
The State also argues that Michael’s due process rights were adequately protected by the original child in need of care proceeding. Michael does not contend that in 1990 when these proceedings started that M.M.L; was not a child in need of care. He admittedly had been absent from any family environment involving M.M.L. for nearly five years. However, his absence was not all of his own choosing. J.C. had moved from the home taking the children, and his efforts to locate them were thwarted by members of her family who would not furnish him any information. It was only by chance in talking with another over-the-road truck driver that he located M.M.L. and her mother in Great Bend.
M.M.L. was properly determined to be a child in need of care under K.S.A. 1994 Supp. 38-1502(a)(3) because of sexual abuse suffered at the hands of her stepfather, M.C., and perhaps other friends of J.C. However, Michael was not tire perpetrator of such sexual abuse. The fact that Michael’s procedural due process rights may have been constitutionally protected at the time of the original child in need of care determination does not thereafter bar his present attempts to gain custody of his child.
The primary objective of the Code is that each child “shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state.” K.S.A. 38-1501. Michael’s fundamental right to the custody of M.M.L. “may not be disturbed by the State or by third persons” absent a showing of unfitness. (Emphasis added.) Sheppard, 230 Kan. at 152. The welfare of M.M.L. and the best interests of the State mandate that Michael be given the opportunity to assume his parental duties and obligations. We recognize that M.M.L. will need continued counseling and Michael must make such provisions for further counseling with qualified personnel in the Kansas City area as may be directed by the trial court.
In conclusion, we hold that the best interests of the child test contained in K.S.A. 38-1563(d) is constitutional when the court has determined by clear and convincing evidence that the parent is unfit or that highly unusual or extraordinary circumstances exist which substantially endanger the child’s welfare. Absent such evidence and findings, the statute is unconstitutional, and the rights of the parent or parents under the parental preference doctrine are paramount and control over the parental power of the State. We further order that the custody of M.M.L. be placed with her father, Michael, subject to appropriate continued counseling in the father’s residential area and under such conditions of reporting and monitoring as may be directed by the court.
In view of the result reached we need not consider Michael’s second issue.
The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. | [
-80,
-24,
-67,
124,
26,
33,
42,
27,
91,
-29,
103,
-45,
-23,
-50,
21,
109,
90,
47,
64,
123,
-47,
-73,
-57,
-31,
80,
-13,
-16,
-36,
-77,
95,
124,
-2,
72,
112,
-118,
-43,
70,
-56,
-99,
-44,
-114,
11,
41,
-47,
83,
-126,
36,
121,
26,
11,
49,
30,
-77,
42,
56,
-6,
-88,
12,
-103,
-68,
-103,
-80,
-113,
23,
94,
18,
-77,
4,
-108,
-27,
80,
47,
-104,
24,
8,
-20,
-45,
-74,
-126,
116,
79,
-115,
9,
117,
98,
48,
73,
-25,
-8,
-103,
79,
73,
-99,
-25,
-98,
120,
32,
101,
-74,
-67,
100,
20,
11,
-8,
-29,
-116,
22,
-28,
10,
-117,
-44,
-111,
13,
56,
-34,
24,
-9,
-25,
32,
113,
-62,
-80,
92,
67,
50,
-109,
-82,
-78
]
|
The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from jury convictions of first-degree murder and aggravated battery. The defendant, Bob Ewing, raises a single issue involving the admission over his objection of his statement made at the scene in response to a question asked of him by the investigating officer without the benefit of a Miranda warning. We conclude the erroneous admission was harmless error and affirm.
Although the jury was presented with conflicting versions of how the crimes occurred, the facts necessary for the resolution of the single issue presented are not in dispute. A detailed statement of facts is necessary to demonstrate the harmless nature of the error raised.
Evelyn Wayne is the former wife of the defendant; the wife of Charles Wayne, the victim of the defendant’s aggravated battery; the sister of the murder victim, Johnella Guinn; and the mother of the defendant’s daughter, Misty Ewing. The defendant had been married to Evelyn Wayne for quite some time when they divorced in 1990. According to Evelyn, she and the defendant remained on good terms after the divorce until she started dating Charles. Evelyn testified that after her marriage to Charles the defendant became despondent and began threatening Charles,
The incident which led to the defendant’s convictions occurred on February 7,1993. Evelyn and Charles had attended church with members of Evelyn’s family and then went to Evelyn’s parents’ house, which was next door to the defendant’s house. When they arrived, the defendant was in his driveway washing his truck. They did not speak to or acknowledge the defendant.
Evelyn and Charles ate dinner at her parents’ house. That afternoon, the defendant called the house and asked Evelyn if he could pick up some cleaning supplies of his which were at her house. Evelyn told him he could do so if he brought the police along. The defendant also asked Evelyn to send Charles outside because the defendant wished to apologize to him for things that he had said previously. Evelyn told him an apology was not necessary.
Later that afternoon, Evelyn and Charles prepared to leave. Charles testified that he opened the car door for his wife, walked around the car, and got in the driver’s seat. At this point, the defendant was standing in his yard. As Charles was preparing to' shut the door he heard Misty Ewing shout: “Daddy, don’t. Daddy, don’t.” Charles testified that he bent over to get his gun out from under the seat of the car because he was fearful of what the defendant might do to him. As he was trying to get the weapon, he saw the defendant stánding outside the car with a gun. The defendant fired two shots, one of which went through both of Charles’s legs.
Evelyn saw the defendant approach the car with a gun in his hands. She testified that she heard her daughter, Misty, saying, “Daddy, don’t,” and then heard two shots. As Evelyn got out of the car, she saw her sister, Johnella Guinn, running up towards the defendant. She testified that the defendant turned around, pointed the gun at Guinn, and fired. Guinn was struck by one bullet and died as a result of the wound.
The defendant testified that as Charles and Evelyn entered the car, he approached the car with some bills he needed to give to Evelyn. He stated that he saw Charles reach down beneath the seat and pull out a gun. He then pulled out the gun that he kept with him and shot Charles in self-defense. His daughter, Misty, then tried to get the gun away from him. During their struggle the gun accidentally discharged, killing Guinn.
Gary Granger, a Kansas City police officer, was patrolling approximately one block away from the incident when he was called to the address by the dispatcher. He arrived on the scene to find a crowd of approximately'30 people milling around. He checked Guinn for a pulse but found none..
From people in the crowd, Officer Granger discovered that a person named Ewing shot Guinn and that Ewing was next door. Granger did not know anyone named Ewing. Granger went to Ewing’s house and as he approached, two males, one of whom was Ewing, walked out of the house. Officer Granger drew his gun and told both of the males to halt and put their hands where he could see them. He then asked: “Who shot the lady?” The taller of the two pointed to Ewing. Ewing stated: “I shot the bitch.” According to Granger’s direct testimony at trial, Ewing wns then taken into custody. However, in a hearing prior to trial, upon cross-examination, Granger had stated that he placed the defendant in custody when he emerged from the house. Granger then began searching for Ewing’s weapon, which he found on the front porch of Ewing’s house.
Prior to trial, the defendant moved in limine to suppress the statement he made to Granger on the ground that he had not been advised of his Miranda rights. The court denied the defendant’s motion on the basis that the two individuals were not in custody at the time the defendant made his statement and on the further basis that the investigation had not focused on the defendant. At trial, the defendant again objected to the admission of his statement.
The first question we must resolve is whether the district court erred by admitting the defendant’s statement to Granger. The defendant argues that he was in custody and undergoing interrogation and, therefore, his rights were required to be given to him, based on the ruling of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Miranda holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the privilege of self-incrimination. 384 U.S. at 444. It is undisputed that these procedural safeguards were not used prior to the defendant’s statement to Granger, “I shot the bitch.” Therefore, the proper question is whether the statement stemmed from a custodial interrogation of the defendant.
The district court refused to suppress based on two reasons: (1) The defendant was not in custody at the time the statement was made, and (2) the officer had not focused his suspicion on the defendant. In a recent case, Stansbury v. California, 511 U.S. — 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), the United States Supreme Court held that whether the interrogating officers had focused their suspicions upon the individual being questioned is not relevant for purposes of Miranda if those suspicions are not disclosed to the defendant. 128 L. Ed. 2d at 301. The Court held that an officer s knowledge or beliefs may bear upon the custody issue if they are being conveyed by word or deed to the individual being questioned, but they are relevant only to the extent they would affect how a reasonable person would gauge his or her freedom of action. 128 L. Ed. 2d at 300. Therefore, the determining factor in deciding whether a Miranda warning is required is whether the person has been taken into custody. See 128 L. Ed. 2d at 298-99.
In this case, Granger testified at trial that he put the individuals in custody after Ewing made his statement. However, as Stansbury makes clear, the subjective belief of the officer is not an issue in determining whether a suspect is in custody for the purposes of Miranda unless it is actually communicated to the suspect. See Stansbury, 128 L. Ed. 2d at 300.
An officer s obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect’s freedom as to render him or her in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); see State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). In determining whether an individual was in custody, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest. [Citation omitted.]” California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983); see Stansbury v. California, 128 L. Ed. 2d at 298 (quoting this standard); see also State v. Fritschen, 247 Kan. at 599 (discussing this standard).
The initial determination of custody depends upon the objective circumstances of the interrogation, and the only relevant inquiry is “how a reasonable man in the suspect’s shoes would have understood his situation.” Stansbury v. California, 128 L. Ed. 2d at 299 (quoting Berkemer v. McCarty, 468 U.S. 420, 422, 82 L. Ed. 2d 317, 104 S. Ct. 3138 [1984]. Kansas has not deemed it prudent to set forth any hard and fast factors in making this determination, instead preferring to determine each case on its facts. See State v. Fritschen, 247 Kan. at 603.
We conclude that the defendant was in custody when Granger asked his question. Granger had ordered the defendant to stop at gunpoint. He then asked a question which by its nature would elicit a confession. At this time, a reasonable person would have believed that his freedom of action was significantly curtailed. The conduct by Granger was also the type of conduct which is associated more with a formal arrest than an informal request for information. Granger himself stated at the motion in limine hearing that he placed the defendant in custody before asking his question. Under the circumstances, the defendant was in custody and should have been advised of his Miranda rights prior to interrogation. This conclusion, however, does not end our inquiry. Even an error of constitutional magnitude may be harmless. If this court possesses a firm belief beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial, it may be declared harmless. State v. Watson, 256 Kan. 396, Syl. ¶ 7, 885 P.2d 1226 (1994).
The defendant’s response to the officer’s question identified the defendant as the one who had shot Guinn. However, identity was not in issue in this case. All testifying witnesses, including the defendant, readily admitted that it was the defendant who shot Guinn. The defendant’s theory was that he shot Guinn accidently. Thus, the response identifying the defendant as the shooter did not prejudice the defendant in light of his own admission and the overwhelming evidence establishing the defendant as the shooter.
The defendant argues that his response with the inclusion of the word “bitch” caused substantial prejudice, requiring that we reverse and remand for a new trial. We disagree. It must be noted that defendant’s main objection is to his own choice of language and not to the question asked by Granger. Moreover, the defendant was able to fully develop his theory of the case, which was that his shooting of Guinn was accidental, resulting from a struggle with his daughter at the scene. His choice of the word “bitch” while identifying himself as the shooter did not prevent the jury from considering evidence of an accidental shooting, especially in light of the fact that there was no evidence of animosity towards Guinn on the part of the defendant.
We conclude that under the circumstances of this case, beyond a reasonable doubt, the question by the investigating officer and the response of the defendant had little, if any, likelihood of changing the result of the trial. Thus, we conclude that the error is harmless and affirm the defendant’s convictions.
The State makes a persuasive argument that a Miranda warning was not required in this case because of the public safety exception found in New York v. Quarles, 467 U. S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), as applied by this court in the case of State v. McKessor, 246 Kan. 1, 6-7, 785 P.2d 1332 (1990). We need not discuss this exception based upon our firm conviction that any error in admitting the defendant’s statement was harmless.
Affirmed. | [
-16,
-20,
-39,
-67,
41,
-32,
-86,
-24,
118,
-125,
-30,
-13,
-81,
-53,
28,
107,
56,
111,
69,
105,
-111,
-93,
39,
-93,
-10,
-77,
58,
81,
3,
-50,
-10,
-4,
28,
114,
-62,
85,
98,
74,
-27,
92,
-122,
-125,
-87,
-48,
-61,
18,
100,
58,
4,
15,
49,
-98,
-29,
42,
52,
-62,
73,
40,
106,
-8,
-64,
112,
-113,
31,
-33,
6,
-77,
-90,
-68,
33,
-6,
14,
-103,
49,
0,
-8,
51,
-108,
-126,
116,
109,
-117,
12,
102,
114,
32,
13,
-49,
-7,
-103,
-81,
126,
-99,
39,
-104,
65,
73,
108,
-65,
-99,
108,
116,
-82,
116,
-7,
12,
93,
100,
-94,
-37,
-112,
-78,
77,
52,
30,
-6,
-61,
-89,
16,
97,
-51,
-22,
85,
53,
82,
-69,
-106,
-73
]
|
The opinion of the court was delivered by
Davis, J.:
This is a consolidated appeal from the district court’s opinion affirming the Kansas Corporation Commission’s (KCC) amendments to the Basic Proration Order (BPO) controlling the Hugoton Gas Field in Kansas. The parties, procedural development, and issues raised on appeal are set forth below. Our standard of review is governed by K.S.A. 77-621 of the Act for Judicial Review and Civil Enforcement of Agency Actions.
BRIEF HISTORY AND BACKGROUND
The Hugoton Natural Gas Field was discovered in the 1920’s. The first gas well was drilled in 1927, four miles southwest of Hugoton, in Stevens County. At present, the gas field is 160 miles long and varies from 40 to 72 miles in width. There are 5,854 wells that cover portions of 11 counties in the southwest comer of Kansas. The field extends across the Oklahoma panhandle and into portions of several counties in northern Texas. Existing wells have drained approximately 20 trillion cubic feet (Tcf) of the 30 Tcf of recoverable reserves in the reservoir. Production from the field in the year 1993 was approximately 400 billion cubic feet (Bcf) of gas. See Lipman, Hugoton Gas Field: The Ongoing Battle Over Allowables, Underage, and Infill Wells, 33 Washburn L.J. 852 (1994).
The gas in the Hugoton Field comes from a common pool. In the absence of any statutory regulation, the common-law rule of capture applies to a common pool. At common law, the owner of a tract of land acquired title to the oil and gas which the owner produced from wells drilled thereon even though it could have been proved that part of such oil or gas migrated from adjoining lands. The rule promotes excessive drilling and production, resulting in economic waste and damage to reservoirs. Kansas enacted the Natural Gas Conservation Act in 1935 to prevent such waste and to protect the rights of adjoining owners. G.S. 1935, 55-701 et seq.
The statutes governing the production and conservation of natural gas in Kansas empower the KCC to prevent waste, avoid uncompensated drainage, and assure orderly development and production of natural gas in Kansas. Along with the prevention of waste, the KCC is directed to prevent the unfair or inequitable taking of natural gas from a common source of supply. This concept of equitable recovery of a common pool is known as correlative rights. Correlative rights means that each owner or producer in a common source of supply is privileged to produce that source only in a manner or amount that will not (a) injure the reservoir to the detriment of others, (b) take an undue proportion.of the obtainable oil or gas, or (c) cause undue drainage between developed leases. K.A.R. 82-3-101(17) (1992).
On March 21, 1944, the KCC issued its BPO, which forms the basis of the proration order currently in effect for the Hugoton Field. A proration order, attempts to ensure that each owner will recover, without waste, the amount of gas underlying his or her land. The 1944 BPO, therefore, prescribed a formula to be used in fixing quotas for each well so that each developed lease would be able to currently produce its daily quota, called an allowable. The 1944 BPO has been amended over time either as the result of an application filed by one of the producers in the Hugoton Field or as the result of an order to show cause issued by the KCC. Any modifications have alwáys been effected only after extensive hearings before the KCC- This case is no- exception.
The major points addressed in this appeal involve basic and significant amendments to the BPO. As noted by the district court, the KCC conducted evidentiary hearings on proposed amendments to the BPO between August 17, 1992, and July 24, 1993. During the course of those hearings, 29 qualified expert witnesses gave detailed technical testimony on behalf of 26 parties. The hearings resulted in a transcript of over 10,000 pages and over 500 exhibits containing conflicting and contradictory expert testimony.
On February 2, 1994, the KCC issued its order amending the BPO. Nine parties filed petitions for reconsideration before the KCC. The KCC made several modifications and clarifications to the February 2, 1994, order but denied reconsideration in all other respects. The KCC 1994 amendments were affirmed on appeal by the district court.
ADDITIONAL BACKGROUND RELATING TO AMENDMENTS.
The 1944 BPO set a production quota for each well in the field which was identified as an “allowable.” The allowable for each well, the amount the well will be able to produce in a 1-month period, is arrived at through the use of a formula which takes into account surface acreage and the ability of a well to produce. Both of these factors were changed by the 1994 amendments.
One of the principal components of the formula to determine a well’s allowable is the surface acreage. Since 1936, practically all drilling in the Hugoton Field has occurred upon 640-acre tracts with one well per tract. The 1944 BPO adopted 640 acres as the acreage unit to be. used in' the proration formula. In 1986, after extensive hearings, the KCC concluded that one well per 640 acres could not effectively and efficiently drain the 640 acres without causing waste. The KCC therefore modified the BPO to allow each operator, at its option, to drill an additional or infill well on any tract of land over 480 acres. The acreage factor in the basic pro- ration formula is calculated by dividing the acreage attributed to the well by 640. The acreage factor of a lease with one well is 1.0, or 640 divided by 640. For those units with an infill well in addition to the original well, the acreage factor, consistent with the 1986 KCC amendment, was determined by assigning both the original and the infill well an acreage factor of 0.5 times the total acreage of the unit divided by 640. Thus, the acreage factor for the original well on a 640 acre tract would be 0.5 and the acreage factor for the infill well would also be 0.5. The KCC, by its 1994 amendment, adjusted the acreage factor of those units with infill wells, increasing it from 0.5 for the original well and 0.5 for the infill well to .65 for the original well and .65 for the infill well.
The two other major factors involved in the formula to determine a well’s allowable are the deliverability factor of a well and market demand. Market demand is determined from two market demand hearings conducted by the KCC in March and September each year wherein the producers submit their estimates of market demand for their gas for the 6-month period. Based upon these estimates, the KCC determines the market demand. However, market demand is not directly involved in this appeal.
The deliverability factor, which is an important consideration in this appeal and which is discussed at length below, is the ability of the well to produce against a standard pressure. This factor takes into account the pressure of the well, the open-flow from the well, and the porosity and thickness of the gas-bearing rock. The 1994 amendment changed the effect of the deliverability factor on the assignment of allowables. The KCC determined that no well would receive an allowable in excess of its demonstrated capacity to produce, defined as the average of the highest 3 months’ production in the preceding 12 months.
Highly summarized, the BPO formula reaches an allowable for each well by dividing the total market demand for the field by the sum of the products of deliverability times the acreage factors of all wells in the field. The resulting figure, called the proration factor of the field, is then multiplied by the product of the deliverability times the acreage factor of each well. The result is the allowable, in cubic feet, for the well for the proration period. The allowable period is a calendar month. The allowable is then the amount of gas per month that a well may produce.
If at the end of a monthly proration period a well has not produced its allowable, the amount not produced, called underage, is carried forward and added to the well’s allowable in the next period. Likewise, any well that overproduces during the monthly pro-ration period will have the overproduction, called overage, charged against its allowable for the next period. When a well accumulates overage in an amount equivalent to six times its current allowable for the preceding January, the well must be shut in and not produced until its oveiproduction is reduced by its new allowable to a figure no more than five times its allowable for the preceding January. When a well’s underage reaches a figure in excess of nine times the current allowable for the preceding January, that excess underage is canceled. For underage canceled after 1984, an operator had 3 years from the date of cancellation to request reinstatement and then had up to 5 years to produce the underage or have it permanently canceled.
The 1994 amendment provided that beginning on January 1, 1994, underage shall be produced by the end of that next calendar year or be permanently canceled. It stated that underage existing on the KCC's December 1993 proration schedule and all underage canceled in 1991, 1992, and 1993 that is reinstated before May 31, 1994, must be produced by December 31, 2003, or be permanently canceled. Unlike the pre-1994 amendments, the KCC provided that underage on units containing an infill well may be produced as unit underage from either the original or the infill well.
The amendments which are the subject of this case arose out of an application made by OXY USA, Inc., (OXY) on May 13, 1992. OXY’s application argued that the BPO was not fulfilling its statutory mandates and proposed that the original well and infill well on a unit each be given an acreage factor of 1.0 times the total acreage of the unit divided by 640 instead of the 0.5 times the total acreage that they were currently receiving. OXY also proposed that the BPO be modified so that when underage is canceled it is permanently canceled and respread the next month as allowable to other wells in an overproduced status. OXY proposed that all cur rent underage accumulated prior to the date of the new amendments be required to be reinstated and produced by December 31, 1994, or be permanently canceled. OXY further proposed that no well except one in an overproduced status be assigned an allowable in excess of its demonstrated capacity to produce, which OXY would define as the largest volume of gas produced in any month of the 12 preceding months.
The KCC expanded the issues to include hearings on well testing, allowing all canceled underage to be produced as unit underage, amending the definition of nominations for the purpose of setting market demand, and amending the deliverability standard pressure. Mobil Exploration & Producing U.S. Inc., (Mobil) also filed a request to expand issues to include modification of the deliverability formula and the acreage factor. The KCC consolidated all the issues and set them for hearing.
The KCC amended the BPO by adjusting the acreage factor of those units with infill wells, increasing it from 0.5-0.5 to .65-.65, although stopping far short of OXY’s proposed 1.0-1.0. The KCC also amended the underage provision, providing a 10-year period in which all existing reinstated or canceled underage must be produced or be permanently canceled and further providing that any new canceled underage must be produced within 1 year of the time that it is canceled or be permanently canceled.
Upon petition for review of the KCC 1994 amendment, filed before the Shawnee County District Court pursuant to K.S.A. 77-601 et seq., the court found that there was no basis to disturb the decision of the KCC and affirmed. Mobil, Amoco Production Company, (Amoco), OXY, and Vastar Resources, Inc., (Vastar) now appeal this decision, raising five issues. The first issue we deal with involves the acreage factor amendment, and along with this issue Mobil contends that the KCC improperly limited its cross-examination. In the third issue, Amoco contends that the KCC erred by limiting a well’s allowable to its demonstrated capacity to produce. OXY and Vastar contend in the fourth issue that the KCC erred by expanding the time allotted to produce existing underage. Finally, OXY argues that it was error to allow certain pipeline com panies to intervene in this action. We begin with the first assigned error regarding the acreage factor amendment.
I. THE ACREAGE FACTOR AMENDMENT
Mobil appeals from that part of the 1994 amendment which adjusted the acreage factor of those units with infill wells, increasing it from 0.5 for the original well and 0.5 for the infill well to .65 for each well. Amoco does not appeal on this issue but supports Mobil’s position. Mobil’s arguments may be identified as follows: (a) legal argument based on correlative rights; (b) lack of evidence to support the amendment; (c) lack of statutory basis for amendment; (d) lack of required findings; and (e) lack of evidence supporting the specific acreage factor of .65.
(a) Correlative Rights
Mobil contends that the KCC erred in increasing the acreage factor to create incentives for the drilling of infill wells. Mobil argues that the KCC may not create production incentives unless they are necessary to protect correlative rights and that there is no evidence that the incentives would serve that purpose. According to Mobil, the increase will instead allow unreasonable discrimination against regular production units.
K.S.A. 55-703(a) defines the KCC’s rights and duties to regulate the production of natural gas from a common source of supply:
“Whenever the available production of natural gas from any common source of supply is in excess of the market demands for natural gas from the common source of supply, or whenever the market demands for natural gas from any common source of supply can be fulfilled only by the production of natural gas from the common source of supply under conditions constituting waste, or whenever the commission finds and determines that the orderly development of and production of natural gas from any common source of supply requires the exercise of its jurisdiction, then any person, firm or corporation having the right to produce natural gas from the common source of supply may produce only that portion of all the natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approximately the amount of gas underlying the developed lease and currently produce proportionately with other developed leases in the common source of supply without uncompensated cognizable drainage between separately owned, developed leases or parts thereof.”
This same statute provides that the KCC shall
“regulate the taking of natural gas from any and all common sources of supply within this state in order to prevent the inequitable or unfair taking of natural gas from a common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of any one common source of supply as against another and in favor of or against any producer in any common source of supply. In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permeability and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent.”
The KCC is vested with three responsibilities under the provisions of K.S.A. 55-703: (1) It must first of all prevent waste of the natural resource, (2) it must allow sufficient production to meet the market demand if such can be done without waste, and (3) it must protect correlative rights. Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 24, 386 P.2d 266 (1963), cert. denied 379 U.S. 131 (1964). In Colorado Interstate Gas Co., we stated:
“In a gas field such as the Kansas-Hugoton where five major companies are taking gas through separate pipelines not connected to the same wells, the responsibilities placed upon the Commission will clash. If the market demand cannot be supplied without waste, or if correlative rights cannot be protected without waste, or if correlative rights cannot be protected without unduly restricting production needed for the market demand, one of the three, waste, market demand, or correlative rights, must suffer. The domina[nt] purpose of [K.S.A. 55-701 et seq.] is to prevent waste. [Citation omitted].” 192 Kan. at 24-25.
Mobil’s argument, that the KCC cannot create production incentives unless they are necessary to protect correlative rights, ignores the broad authority vested in the KCC to prevent waste in the production of oil and gas. See Hartman v. State Corporation Commission, 215 Kan. 758, 768, 529 P.2d 134 (1974). Nevertheless, Mobil argues that Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 699 P.2d 1002 (1985), vacated and remanded 475 U.S. 1002, 89 L. Ed. 2d 289, 106 S. Ct. 1169 (1986), aff’d on remand 240 Kan. 638, 732 P.2d 775 (1987), supports its argument on correlative rights. Northwest Cent. Pipeline also dealt with modifications to the BPO governing the Hugoton Field.
Mobil notes that in Northwest Cent. Pipeline we said:
“While selling gas is not a function of the KCC, except tangentially through setting allowables, nor is the providing of incentives for additional production a KCC function, when additional production is needed to protect correlative rights, the KCC has authority to create such incentives.” 237 Kan. at 264-65.
According to Mobil, because Northwest Cent. Pipeline mentioned only the need to protect correlative rights as justification for the KCC providing production incentives, the KCC has no authority to create production incentives to prevent waste. Mobil’s reading of Northwest Cent. Pipeline is extremely narrow and conflicts with the following language:
“Selling gas is not a function of the KCC, nor is the providing of incentives for additional production, but when additional production is needed to protect correlative rights and to prevent waste, the commission has authority to create such incentives.” 237 Kan. 248, Syl. ¶ 7. (Emphasis added.)
Mobil recognizes the language in Syllabus ¶ 7 but argues that statements in a syllabus should be interpreted in light of the facts and questions presented in the case. Mobil acknowledges that there was no issue of waste in Northwest Cent. Pipeline. Had there been waste, as in the case we now address, there can be no doubt that the KCC would have been empowered to act. This court recognized in Northwest Cent. Pipeline that the KCC’s duty is to prevent waste and protect correlative rights. 237 Kan. at 254. Mobil’s contention that Northwest Cent. Pipeline stands for the proposition that the KCC may not adopt production incentives in order to protect against waste is without merit and contrary to well-established law in Kansas.
In Colorado Interstate Gas Co., 192 Kan. at 25, we said that the dominant purpose of the KCC’s authority in regulating production from common sources of supply is to prevent waste. In Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 184, 769 P.2d 1 (1989), another case concerning the BPO controlling the Hugoton Field, we stated: “The first [question presented] is whether the Commission has authority over the field when action is unnecessary to protect correlative rights. We hold it clearly does. The prevention of waste is the Commission’s foremost function. K.S.A. 55-701; [Citations omitted.]” The KCC is vested with the broad power to regulate the Hugoton Field in order to prevent waste, meet market demand, and protect correlative rights. This includes the power to create production incentives in order to accomplish these objectives.
(b) Evidence Supporting Change in Acreage Factor
(1) Scope of Review
The scope of appellate review of an administrative agency’s order is to determine whether the district court reviewed the order in accordance with its statutory responsibility. Southwest Kan. Royalty Owners Ass'n, 244 Kan. 157, Syl. ¶ 1. This court exercises the same review of the agency’s action as does the district court and must accept as true the evidence and all inferences to be drawn therefrom which support of tend to support the findings of the trial court. Reed v. Kansas Racing Comm’n, 253 Kan. 602, 609-10, 860 P.2d 684 (1993). This court is to disregard any conflicting evidence or other inferences which might be drawn therefrom. 253 Kan. at 610.
A party seeking relief from an action of the KCC has the burden of showing that an agency’s order is invalid for one of the following reasons:
“(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, which 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).
(2) Evidence
Mobil argues that the amendment was not supported by substantial evidence in that the evidence did not demonstrate that raising the acreage factor was necessary in order to protect correlative rights or to prevent waste. When reviewing a decision of the KCC for substantial evidence, the court must observe several limitations. Neither the district court nor this court may substitute its judgment for that of the administrative agency. As long as the record contains substantial competent evidence supporting the agency decision, the decision is reasonable and must be upheld by this court. Southwest Kan. Royalty Owners Ass'n, 244 Kan. at 165. This is true even though there may be conflicting evidence which would support a contrary result. The KCC is vested with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 511, 561 P.2d 779 (1977). The court may not set aside an agency order merely because the court would have reached a different conclusion if it had been the trier of fact. Only in those cases where the evidence shows the KCC’s determination is so wide of the mark as to be outside the realm of fair debate may factual finding be set aside. Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474, 749 P.2d 21 (1988).
The question of whether the acreage factor in the BPO should be changed was extensively argued before the KCC through the use of both prefiled and live testimony. As explained at the outset, the original acreage factor in the BPO for properties with only one well was 1.0 for every 640 acres, which meant that a single well on a 640-acre tract could produce its allowable each year. As a result of a KCC 1986 amendment, a lease with an original well and an infill well was granted an acreage factor of 0.5 for the original well and 0.5 for the infill well. The factor for a lease with one well and the factor for a lease with an original well and infill well was the same, viz., 1.0.
OXY’s proposal was to change the acreage for the lease with an original and infill well to 1.0-1.0 on the grounds that the infill wells would recover reserves that would be unrecoverable in their ab sence, thus preventing waste. This proposal and the need for some change in the acreage factor was the subject of much debate.
Stanley W. Kleinsteiber, a petroleum engineering associate for Amoco, testified that his work suggests that 30% of Amoco’s leases will see an increase in incremental reserves through such infill drilling. He testified that OXY’s proposed change to a 1.0-1.0 acreage factor would be too burdensome on operators in the field in that it would force the operators to drill infill wells even where they are not needed because of the risk of losing the allowable.
Gregory P. Womack, an Amoco staff petroleum engineer, also testified against OXY’s proposal. He estimated that infill drilling could potentially result in die recovery of an additional 3.5 to 5.0 Tcf of gas reserves but that 1.0-1.0 is too high an acreage factor to use. According to Womack, a 1.0-1.0 acreage factor would mean that the infill well was essentially doubling the field’s reserves, while his studies showed that infill drilling would only increase reserves by approximately 29%. Womack stated that raising the acreage factor to 1.0-1.0 would eliminate the optional nature of infill drilling and cause waste because operators would be forced to drill unnecessary infill wells to gain the extra production allowable.
William E. Ward, a regulatory engineer for Mobil, testified that in his opinion, infill wells are unnecessary to drain the field and avoid waste. Ward stated that new infill wells will actually promote waste because more gas will be taken from the wells and the gas wall migrate to the low pressure areas of the field. Ward conceded that some individual leases have increased their reserves through the use of infill wells but felt that the 1.0-1.0 ratio suggested by OXY would be inconsistent with the orderly drainage of the field.
Gregory J. Natyzak, a gas business coordinator for the Mid-Continent Region of OXY, testified in support of the proposed acreage increase. According to Natyzak, a second well is needed on each lease to fully recover the reserves, yet only 35% of the units have infill wells. He attributed the small number of infill wells to the existent acreage factor. Natyzak testified that the 0.5-0.5 acreage factor for leases with an original well and an infill well actually discourages infill drilling and penalizes those who engage in it be cause the infill well must be able to produce as much gas as the original well in order for the production to remain the same. In his opinion, the acreage factor was in need of modification and the plan proposed by OXY would prevent waste, protect correlative rights, and satisfy market demand.
Joseph D. Candella, an operations analytical engineer for Atlantic Richfield Company (later Vastar), testified in support of OXY’s plan. Candella testified that because natural gas migrates to low pressure areas, Kansas wells in the Hugoton Field must increase their production to match production in Oklahoma and Texas. According to Candella, Oklahoma wells with increased production have a lower pressure and are actually draining natural gas reserves from Kansas. He stated that increasing the acreage factor would make infill drilling more economical. In his opinion, if more infill wells are drilled, incremental reserves will be added, physical waste will be eliminated, infill economics will be positive, correlative rights will be protected, and the pressure differential between Kansas and Oklahoma will be reduced.
Del L. Craddock, a staff operations engineer for Santa Fe Minerals, testified that infill drilling would allow the wells in the Hugoton Field to produce much closer to capacity. However, according to Craddock, it is not economical to drill infill wells if the acreage factor stays the same. Craddock testified that at the current rate of allowable production, many Santa Fe wells will not be able to stay in operation long enough to recover the gas beneath their sections.
Dennis E. Fagerstone, a vice-president of exploration and production for Mesa Operating Company (Mesa), testified that studies indicated infill wells were currently producing an average of 4% of additional reserves. However, Mesa’s own in-house studies estimated that 15% additional reserves would be recovered from infill drilling.
Sam A. Giovinco, an area engineering supervisor for Mesa, testified that the current acreage factor is uneconomic. According to Giovinco, with the current acreage factor 0.5-0.5, it is possible to receive a decrease in allowable production for a unit that is infilled where the infill well is not in an as desirable location as the original well. As a result, an infill operator, even though substantially increasing the reserves in the field, is penalized for drilling an infill well. Giovinco testified that the exact increase in reserves is not quantifiable at this point because there is not enough data yet collected on the infill wells that have been drilled so far. However, Giovinco testified that infill well pressures have been generally higher than on the original wells,, which would indicate that additional reserves are being encountered.
K. Todd Montgomery, a reservoir engineer for Anadarko Petroleum Corporation (Anadarko), in his prefiled testimony with the KCC, stated that infill drilling is of vital importance to the Hugoton Field. He concluded that wells in the field are likely to develop casing failure as they get older and an infill well will be necessary to properly drain the reserves. If infill wells are drilled early in the well life when pressure is higher, more gas may be recovered then if they are drilled later in the life of the well when pressures are lower. Under cross-examination by Amoco, he stated that Anadarko, using a three-dimensional modeling system for the Hugoton Field, was able to quantify its increase in reserves at a minimum of 120 Bcf in 1991. According to Montgomery, Anadarko believes that it will recover more reserves in the future.
Don Ray George, a consulting petroleum engineer for his own company, Don Ray George and Associates,'presented prefiled testimony on the acreage factor issue. George testified that without infill drilling, production in the Hugoton Field will undergo a dramatic decline. George stated that infill drilling will not continue unless the acreage factor is increased. In his opinion, higher rates of production will not lead to the recovery of less gas but will, instead, cause additional depletion in areas of the reservoir that current wells are only partially depleting, thus recovering moré otherwise unrecoverable reserves. He stated that correlative rights will not be violated by an increase in the acreage factor but that correlative rights are protected by the KCC, giving all operators the same opportunity to effectively develop their leases. At the current acreage factor, operators who do not infill drill are beneficiaries of the additional allowable created by operators who do infill drill.
Dr. Jerry Vairogs, a reservoir engineering consultant for OXY, testified by prefiled testimony and by live testimony. He stated that there is more gas in the Hugoton Field than was projected by Mobil. Without infill drilling, all of the gas underlying the leases in the Hugoton Field will not be recovered in a timely manner, if at all. He also testified that Mobil’s fears concerning the violation of correlative rights if a higher acreage factor is adopted are not credible. According to Vairogs, gas in the Hugoton Field does not flow from one lease to another lease several miles away due to the drainage patterns prevalent in the area. In his live testimony, he stated that there is no way to determine the amount of additional reserves that are being recovered by infill drilling because infill drilling has been in activity for such a short time.
Thomas C. Ryan, a reservoir engineering advisor for Mobil, presented prefiled testimony against a change in the acreage factor. Ryan admitted that on the edge areas of the field, infill wells might find significant incremental reserves. However, according to Ryan, in most of the field, the permeable layérs are laterally connected and, therefore, there are no significant incremental reserves that cannot be drained by one well per lease. While there may also be incremental reserves in the lowest permeability layers, they will be uneconomical to recover. In Ryan’s opinion, most infill wells are not contacting significant new reserves, and there is no justification for any significant increase in the acreage factor. He did concede that there is evidence that new reserves are being added in various parts of the field.
Leroy D. Bradley, a technical supervisor for Mobil’s Liberal asset team, also presented testimony. He testified that although an infill well will drain more gas, most of it will come from adjacent sections and, thus, rather than protecting correlative rights, the use of an infill well will violate them unless the acreage factor is kept at 0.5-0.5. He did, however, admit that some of the infill wells have a continued higher pressure than the original wells on the lease, which would indicate that they are developing new reserves.
(3) Conclusion
The KCC was presented with a variety of evidence as to the necessity and the advisability of a change in the acreage factor. Mobil’s contention that there was no, evidence a change in acreage factor was necessary to protect correlative rights or to prevent waste is not supported in the record. . The record is replete with evidence that die 0.5-0.5 acreage factor, was causing a loss of allowable for those drilling infill wells, even though the wells were resulting in the discovery of new reserves. Moreover, there is a large body of testimony which tends to show that infill wells are necessary to properly drain the Hugoton Field without waste and that the 0.5-0.5 acreage factor was inhibiting the drilling of infill wells. Experts such as Del Craddock, a staff operations engineer for Santa Fe Minerals, testified that.at the current rate of allowable production and without the drilling of. more infill wells, many Santa Fe wells will not be able to stay in operationjong enough to recover the gas beneath their sections.
Mobil asserts that there was no substantial competent evidence that infill drilling has or will develop new reserves. However, Mobil’s own reservoir engineering advisor, Thomas Ryan, conceded that in some areas of the field, infill wells might find significant incremental reserves. Leroy Bradley, also a Mobil witness, admitted that some infill wells have continued higher pressure than the original well on the lease, which would indicate that some of them are developing new reserves. Other witnesses before the KCC testified that although there is not enough information available to quantify the exact increase in new reserves made available through infill drilling, studies have shown additional reserve production,
In order to find, as Mobil suggests, that there is no evidence infill drilling is necessary to protect correlative rights or to prevent waste, we would have to accept only the evidence produced by Mobil and disregard other conflicting evidence. Our mandate is exactly the opposite. We exercise the same review of the agency's action as does the district court and must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the agency. We disregard any con flicting evidence or other inferences which might be drawn therefrom. See Reed v. Kansas Racing Comm’n, 253 Kan. 602, 609-10, 860 P.2d 684 (1993). To the extent that Mobil suggests its evidence is of better quality than that of the other experts in the case, we must remember that it is for the KCC rather than this court to determine what weight evidence should be given. “ ‘Nothing can be gained by making a comparison of conflicting testimony. The commission is the trier of facts. The commission had the expertise through its staff to sift and evaluate . . . conflicting testimony.’ [Citation omitted.]” Southwest Kan. Royalty Owners Ass’n, 244 Kan. at 166.
As long as the record contains substantial competent evidence in support of the decision of the KCC, its decision is reasonable and must be upheld by this court, 244 Kan. at 165. The record contains evidence that infill drilling discovers new incremental reserves, but even if there was no evidence of new reserves, the KCC is free to change the acreage if the evidence shows that without infill drilling, waste will occur or correlative rights will be violated. The record also contains evidence that without a change in the acreage factor, those companies with infill wells are actually losing allowables, that infill wells are necessary to properly drain the Hugoton Field, and that without the increased productivity from infill wells, gas from the Kansas portion of the Hugoton Field is lost to Oklahoma wells. The KCC’s finding that change in the acreage factor was necessary to protect correlative rights and prevent waste is supported by substantial competent evidence.
(c) Statutory Authority of KCC
Mobil contends that the KCC acted beyond its statutory authority in increasing the acreage factor because it has the duty under K.S.A. 55-703(a) to prevent unreasonable discrimination in favor of or against one producer in a common source of supply. Mobil argues that the increase in acreage factor will result in some wells not being allowed to produce the amount of gas underlying their leases and will discriminate against those leases which do not have infill wells.
According to Mobil, the increased acreage factor results in an advantage to leases with infill wells because it gives those leases 30% more allowable production than similar leases without infill wells. A lease with both an original well and an infill well would receive .65 allowable, for the original well and .65 allowable for the infill well for a total of 1.30, while a lease with only an original well receives 1.0. Mobil claims that this built-in discrimination is outside the statutory authority of the KCC because it violates correlative rights.
The KCC does have the statutory duty to prevent the inequitable or unfair taking of natural gas from a common source, of supply by any one producer. K.S.A. 55-703(a). However, Mobil’s argument ignores the fact, that the KCC’s foremost function and the dominant purpose of K.S.A. 55-703 is to prevent waste. See Southwest Kan. Royalty Owners Ass'n, 244 Kan. at 184; Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 25, 386 P.2d 266 (1963).
Substantial competent evidence supports the conclusion that infill wells are necessary in order to completely recover the gas reserves underlying the Hugoton Field. However, at the current acreage factor, infill well drillers were actually being penalized for drilling infill wells unless the infill well’s production equalled at least 50% of the allowable share for the entire lease. Under these circumstances, a change in the acreage factor was necessary in order to prevent discrimination against infill wells and to encourage the drilling of infill wells, where necessary, to completely recover the gas underlying each lease. “The Commission is required to afford each owner the ‘right or opportunity’ to produce his share.” 192 Kan. at 25. The KCC’s order allows those leases with infill wells a chance to produce their share of the gas without penalty and at the same time prevents waste by encouraging the drilling of infill wells where necessary. As a result, the KCC did not act beyond its statutory jurisdiction in changing the acreage factor.
(d) Required Finding
Mobil contends that' the KCC was required to find that infill wells were resulting in the discovery of incremental reserves and that its failure to explicitly decide this issue prohibits it from increasing the acreage factor. Mobil argues that this court must grant relief because under K.S.A. 77-621(c)(3), the KCC “has not decided an issue requiring resolution.”
(1) The Trial Court’s Decision
In addressing this issue the trial court concluded:
“The issue of infill drilling was originally addressed by the KCC in 1986 when extensive hearings were conducted and an Order establishing the guidelines for infill drilling put into place. That Order was reviewed by the courts and upheld by the Kansas Supreme Court as being based on substantial competent evidence. Southwest Kansas Royalty Assoc., 244 Kan. at 157.
“However, despite the fact that Mobil and others have stated that they did not want to retry the infill issue, Mobil now complains that the findings from the 1986 infill hearings cannot be relied upon. If Mobil is seeking a re-evaluation of the 1986 infill order findings which stated that infill drilling would increase reserves and prevent waste, then Mobil’s appropriate remedy is to petition the KCC for new hearings to determine the benefits and detriments of infill drilling in the field. The court on review will not upset a valid exercise of authority by an administrative agency based on the accusation that an issue which was never properly brought up at the agency hearings was not decided upon by the agency. The KCC lawfully relied upon the earlier findings from the 1986 infill hearings when evaluating the proposed amendment to the acreage factor for infill wells, and properly took notice of those findings and orders without objection.
“Based on evidence from the 1986 infill hearings the KCC found that waste of field reserves would occur if infill drilling were not accomplished. Evidence presented at the recent amendment hearings indicated that an increase in the acreage factor for infill wells was necessary to further encourage the drilling of infill wells. In fight of all the evidence, the KCC ordered an increase in the acreage factor for infill wells so that waste of reserves could be avoided. The KCC clearly did not fail to decide an issue requiring resolution, and therefore shall not be overturned on review.”
(2) Discussion and Analysis
We agree with the trial court. Moreover, the increase in new reserves provided by infill wells was simply one factor in the KCC’s decision to increase the acreage factor for wells. The KCC determined that “credible evidence has been presented to the effect that the drilling of infill wells will maximize ultimate recovery of reserves in a timely manner.” This finding takes into account not only the incremental recoverable reserves but also the decrease in recovery time and the ability to efficiently drain the gas provided by infill wells in order to prevent waste. We conclude that the KCC did not fail to decide an issue requiring resolution.
(e) Whether the .65-.65 Acreage Factor is Supported by Evidence
Mobil contends that the ,65-.65 acreage factor adopted by the KCC is unsupported by substantial competent evidence. Mobil asserts that because OXY’s proposal was for a change to a 1.0-1.0 acreage factor and because the other parties either supported that factor or did not want a change, the KCC could only adopt one argument or the other.
This argument ignores the great weight of the evidence which established that: (1) the current acreage factor was in need of change as it actually penalized producers for drilling infill wells and increasing gas reserves and (2) OXY’s proposed change to a 1.0-
I.0 acreage factor was too great a change as it would have credited infill drilling with doubling the reserves in the field, while all evidence pointed to substantially smaller increases in reserves. The evidence introduced supported a change in the acreage factor but not to the extent argued by OXY in its original proposal. Under these circumstances, it was incumbent upon the KCC to determine what the new acreage factor should be. As we noted in Southwest Kan. Royalty Owners Ass’n, 244 Kan. at 166, the KCC has the expertise through its staff to sift and evaluate conflicting testimony. The .65-.65 acreage factor adopted by the KCC falls within the range of reasonableness and is supported by the evidence presented. It is not so wide of the mark as to be outside the realm of fair debate. Therefore, it will not be disturbed on appeal. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474, 749 P.2d 21 (1988).
II. LIMITATION OF CROSS-EXAMINATION
In an issue related to the KCC’s adoption of the .65-.65 acreage factor, Mobil contends it was denied the right to cross-examine certain witnesses concerning whether or not incremental reserves are being discovered by infill drilling. According to Mobil, the question of whether infill drilling actually resulted in the discovery of incremental reserves was an important issue in the case, and the KCC denied it due process of law by prohibiting cross-examination.
(a) Background
The first of the two incidents concerning this issue occurred during the examination of Vastar’s expert witness, Joseph D. Candella. Mobil’s counsel asked Candella if Vastar had seen any significant increase in its reserves due to infill drilling. Candella answered that Vastar had made estimates of its reserves from infill drilling. At this point, Vastar’s counsel objected to the line of questioning, stating that any increased reserves as the result of infill drilling were confidential and proprietary information. KCC Commissioner Rachel Lipman stated that the cross-examination could continue but that it would be monitored very closely. Mobil’s counsel stated that he did not want to inquire about booked reserves but instead simply wanted to ask about reserves attributable to infill drilling. The Commissioner stated that questioning could continue along those lines.
Mobil’s counsel asked what the estimates were; Vastar’s counsel again objected. Mobil’s counsel stated to the Commissioner that he was only looking for a ballpark figure. Vastar’s counsel argued that the percentage itself was proprietary information. After some argument, the Commissioner determined that parties would be allowed to ask whether increased reserves were attributable to the Hugoton Field and that specific information would be received under seal by the KCC and not subject to cross-examination. The information would be looked at and reviewed in connection with the final ruling. Candella then testified that Vastar had seen increased reserves from its infill drilling.
The second incident complained of by Mobil occurred during the cross-examination of Anadarko’s witness, K. Todd Montgomery. Mobil asked Montgomery if significant incremental reserves were being obtained from infill wells, to which Montgomery testified, “You better believe it.” Mobil then asked whether Anadarko had made any studies in that regard, to which Montgomery answered, ‘Tes.” He stated that in his testimony, he had not included any evidence of increased reserves because he did not want to retry the infill drilling issue. Counsel for Anadarko objected on the basis that the information was confidential. The Commissioner allowed counsel to inquire about the studies conducted without asking for specific numbers.
(b) KCC Action
The KCC issued an order on November 13, 1992, governing how each party’s studies on infill drilling would be submitted under seal. The order stated, in part:
“On October 21,1992, the Commission ruled that the incremental reserve data of the producers in the Hugoton field is relevant to this proceeding. Many of the producer/parties to this proceeding object to the introduction of this information as proprietary and confidential and therefore inadmissable. While acknowledging that this data is possibly proprietary and confidential, at least to the extent that this data has not already been disclosed through publicly available documentation, the Commission rules this information to be vital and clearly relevant to the proceeding.
“Accordingly, the Commission finds that the disclosure of this information to the Commission and Commission staff ‘will significantly aid the commission in fulfilling its functions’ and that any potential harm related to the alleged confidential nature of the data will be avoided by having the information submitted under seal and not subject to cross examination. See K.S.A. 66-1220a.”
K.S.A. 66-1220a(a) is a statute dealing with the disclosure of trade secrets and confidential information by the KCC. It states that the KCC shall not disclose or allow inspection by anyone of a trade secret or other confidential information unless the KCC finds that the disclosure is warranted by certain factors. One of the factors to be considered is whether the disclosure will significantly aid the KCC in fulfilling its functions. K.S.A. 66-1220a(a)(1).
Several parties objected to the KCC’s November 13 order set forth above; these objections were heard by the KCC on January 11, 1993. At this hearing, the KCC’s counsel stated to the Commissioner that rather than risk the disclosure of confidential information, it might be better for the KCC to make its decision concerning the addition of incremental reserves by infill wells solely on the basis of the information which had already been filed with the KCC and had been subject to cross-examination. The KCC agreed and issued the following order rescinding its November 13 order:
“The Commission finds that, requiring all producing parties to submit incremental reserve estimates and supporting data is no longer essential to a determination of this matter and would be redundant to evidence already in the record. Therefore, the Commission should rescind its Order of November 13, 1992.”
(c) Mobil’s Contention
Mobil contends that by restricting its right to cross-examine Candella and Montgomery and by not requiring that studies on infill drilling be made available, the KCC denied Mobil due process of law. Mobil argues that in so doing, the KCC engaged in an unlawful procedure or failed to follow prescribed procedure. See K.S.A. 77-621(c)(5).
(d) Discussion and Analysis
An administrative body empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature is acting in a quasi-judicial capacity. Adams v. Marshall, 212 Kan. 595, 599, 512 P.2d 365 (1973). We have stated that the full rights of due process present in a court of law do not automatically attach to a quasi-judicial hearing. In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987). However, we have also held that “[t]he right to the cross-examination of witnesses in quasi-judicial or adjudicatory proceedings is one of fundamental importance and is generally, if not universally, recognized as an important requirement of due process.” Adams v. Marshall, 212 Kan. at 599-600. See Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 246, 671 P.2d 547 (1983) (holding that the right to cross-examine witnesses testifying at administrative hearings of a “quasi-judicial” character is an important requirement of due process).
Mobil argues that simply because information concerning incremental reserves discovered by infill drilling may be confidential does not excuse a violation of due process when such information is vital to the resolution of an important issue in the case. In support of its contention that the KCC violated due process, Mobil cites City of Fairbanks v. Alaska P.U.C., 611 P.2d 493 (Alaska 1980).
In City of Fairbanks, the city appealed an order of the Alaska Public Utilities Commission denying the city a certificate of convenience and necessity to provide telephone service to a nearby military base and awarding a certificate to another company, Wirecom. The Public Utilities Commission had ordered Wirecom to provide 2 years of annual balance sheets and income statements so that it could assess Wirecom’s financial stability. Wirecom agreed to provide such statements on the condition that they not be divulged to Fairbanks or become part of the record. The Commission agreed. Fairbanks argued that such an in-camera examination amounted to a denial of its due process right to cross-examination.
The Alaska Supreme Court agreed with Fairbanks, noting:
“In this case, Fairbanks had no way of knowing what the financial information consisted of, no opportunity to subject it to the tests of cross-examination or other means of verification, no opportunity to rebut it, and no opportunity to argue that the staff’s conclusion did not logically follow from the information on which it was based. likewise, neither this court nor the superior court can evaluate the Commission’s conclusion without the underlying information. These fundamental defects amount to a failure of due process.” 611 P.2d at 495.
The court further noted that the information was confidential and that its disclosure was subject to a statute prohibiting the disclosure of confidential information except in certain circumstances. However, the court noted that “[t]he privilege reflected by this statute should be construed narrowly so that it does not conflict with the constitutional requirements of due process. ... If a conflict nevertheless occurs, due process must control.” 611 P.2d at 497.
In reaching its decision, City of Fairbanks cited the United States Supreme Court’s decision in Ohio Bell Tel. Co. v. Comm’n, 301 U.S. 292, 81 L. Ed. 1093, 57 S. Ct. 724 (1937). In Ohio Bell Tel. Co., the Ohio public utilities commission relied on evidence not in the record to evaluate the property of a telephone company for rate-making purposes. The company argued that because it could not cross-examine or rebut the data, it was deprived of its right to a fair hearing. 301 U.S. at 298. In finding an infringement of the company’s due process rights, the Court stated:
“From the standpoint of due process-the protection of the individual against arbitrary action — a deeper vice is this, that even now we do not know the particular or essential facts of which the Commission took judicial notice and on which it rested its conclusion. Not only are the facts unknown; there is no way to find them out. When price lists or trade journals or even government reports are put in evidence upon a trial, the party against whom they are offered may see the evidence or hear it and parry its effect. . . . The Commission, withholding from the record the evidential facts that it has gathered here and there, contents itself with saying that in gathering them it went to journals and tax lists, as if a judge were to tell us, T looked at the statistics in the Library of Congress and they teach thus and so.’ This will never do if hearings and appeals are to he more than empty forms.” 301 U.S. at 302-03.
Mobil’s reliance on City of Fairbanks and Ohio Bell Tel. Co. is misplaced. In both of those cases, unlike our case, the evidence not subject to cross-examination was considered and relied upon by the respective commissions in making their decisions. In this case, the evidence which the KCC asked to receive in camera was never provided or considered by the KCC in reaching its decision. Instead, the KCC made its decision on the basis of information already on the record which had been subject to cross-examination. This is not a case, as in both City of Fairbanks and Ohio Bell Tel. Co., where review is precluded because the KCC relied upon some information not in evidence to make its decision.
There still exists Mobil’s contention that the KCC relied on the statements made by Candella and Montgomery concerning new reserves, even though Mobil was denied an opportunity to cross-examine either Candella or Montgomery on the basis for these statements. However, as the KCC’s order makes clear, the KCC did not rely on either of these statements in making its decision regarding the acreage factor.
In its order concerning the acreage factor, the KCC provided a list of the testimony it relied on in making its decision. While the KCC relied on certain portions of Candella’s testimony concerning infill wells, most notably the effect of the acreage factor on the drilling of infill wells and the capacity of the wells to produce, it did not rely on any statement of Candella concerning whether infill drilling leads to the discovery of incremental reserves. The same is true of the testimony of Montgomery. The KCC relied on Mont gomery’s testimony concerning the use of infill wells as backup wells in case the original well suffered a casing failure and also relied on Montgomery’s testimony concerning well pressure as the Hugoton Field is depleted. However, the KCC did not rely on any of Montgomery’s statements concerning new reserves.
Instead, the KCC relied primarily on the testimony of Dr. Jerry Vairogs, reservoir engineering consultant for OXY, who stated that infill drilling allows for the recovery of additional reserves, as well as the testimony of Sam A. Giovinco, area engineering supervisor for Mesa. There is no allegation that Mobil was denied cross-examination of these two witnesses.
The reason the KCC chose not to rely on statements made by Candella and Montgomery on the issue of whether incremental reserves are being added becomes clear when their testimony is examined. Candella’s testimony, for the most part, concerned the difference between Kansas production as compared with production in Oklahoma and Texas, and the negative results of that production on the Hugoton Field. Nowhere in his direct testimony did Candella mention increased incremental reserves from infill drilling. That issue was brought up by Mobil’s counsel in cross-examination, and it is from this cross-examination that Mobil claims it was unduly restricted.
The same is true regarding Anadarko’s witness, Todd Montgomery. The record shows that Montgomery’s testimony concerning infill wells did not focus on incremental reserves but rather on the need to use infill wells to extract the identifiable reserves. Montgomery testified that infill drilling was necessary because original wells could experience casing failure and the economics of drilling of new wells after a casing failure declined with the age and pressure of the well. He was concerned that if infill wells are not drilled, gas that would be recoverable will be left below the surface because it will not be economical to extract it. The estimated increase in incremental reserves was an issue presented to Montgomery on cross-examination by Mobil’s counsel. Further, Anadarko’s published information concerning increased reserves was later subject to cross-examination by Amoco, and the same information sought by Mobil was elicited.
As can be seen, even though the KCC did restrict the cross-examination of both Candella and Montgomery as to the effect of infill drilling on incremental reserves, the record demonstrates that the KCC did not consider the testimony of Candella and Montgomery on that issue. The KCC refused to consider in-camera information that had not been subject to cross-examination. Consequently, there was no deprivation of Mobil’s due process rights. Instead, the amendment was based only upon evidence which had been subject to cross-examination.
III. LIMITATION OF A WELL’S ALLOWABLE TO ITS DEMONSTRATED CAPACITY TO PRODUCE
The KCC also amended the BPO by providing that a well would not be assigned an allowable in excess of its capacity to produce it, as determined by an average of the 3 highest production months in the preceding 12 months. Amoco argues that this 3-month average for allowables is discriminatory in that it takes allowables from wells that need them and allocates the taken allowables to overproduced wells. As a result, the overproduced wells do not then produce the amount of gas underlying their leases but, instead, take gas from other leases. More specifically, Amoco argues: (1) The KCC has violated K.S.A. 55-703; (2) the amendment lacks any evidentiary support for its conclusion that assignment of allowables in excess of the “three month average” encourages “waste”; and (3) the “three month average” provision violates K.S.A. 55-703, which the Commission is duty bound to follow.
(a) Background
In order to fully understand Amoco’s arguments, it is important to consider the assignment of allowables as it existed before and after the 1994 amendment. Because a well’s pressure falls when it is produced, a production quota known as an allowable is given to each well in the field. The allowable for each well is based on a deliverability formula. Deliverability for each well is determined by having the well produce gas into the pipeline for 72 hours. During this time, the working pressure at the wellhead is to be maintained at 70% of the average shut-in wellhead pressure of the field or as close to that pressure as operating conditions permit. The rate at which the well is producing at the end of the 72 hours is considered to be the stabilized producing rate. It is then adjusted to take into account the pressure of the well. The end product of this test is an estimation of the well’s ability to produce gas at an average wellhead pressure, which is called the “deliverability” of the well. The allowable for the well is then calculated.
The first step in calculation is to determine the proration factor for the field by dividing the total market demand by the sum total deliverability of all the wells in the field multiplied by their acreage factors. The result is the field proration factor. The field proration factor is then multiplied by the individual well’s deliverability times its acreage factor. The result is the well’s allowable in cubic feet that may be produced during the period in question.
Under the terms of the BPO, if the well produces an amount above the allowable (overage) or below the allowable (underage), the amount is carried forward to the next proration period. Thus, wells that have been overproduced see their allowable cut for the next period, and wells that have been underproduced are allowed to make up that production, if they can, in the next period.
A well with a deliverability of greater than 300 million cubic feet (Mcf) is allowed to accumulate an overage equivalent to six times its current allowable in a given period. Thus, a well which produces more than its allowable in the period may do so but when the accumulated overage reaches an amount equal to six times its last allowable, it must be shut in. The well is not allowed to produce any gas until it has accumulated enough allowable that its overproduction is only five times the amount of its current allowable.
The wells which were underproduced in a given proration period had been allowed to accumulate an underage until it reaches an amount greater than six times the well’s allowable. An underage in excess of this figure is canceled, although it may be reinstated later upon request of the operator if requested within a specific time.
(b) The KCC’s 1994 Amendment
The KCC amendment changed the above method for determining a well’s allowable by providing:
“No well, except a well in over-produced status, shall be assigned a monthly allowable in excess of its demonstrated capability to produce defined as the average of the highest three months production in the last 12 preceding months. The implementation and the effective date of this amendment shall be referred to a study group consisting of industry and Commission staff with a final report to the Commission due on or before June 1, 1994.”
(c) OXY’s Proposal For Change
The change in the BPO about which Amoco complains came about as the result of OXY’s proposal for modification. In its application for change, OXY stated that the proration order in the BPO was not fulfilling its statutory mandates. Among the proposals made by OXY was that no well, except those in overproduced status, should be assigned an allowable greater than its demonstrated capability to produce. OXY defined a well’s ability to produce to be the largest volume of gas produced in any of the preceding 12 months. Thus, according to OXY’s proposal, if a well, which under the proration formula was entitled to a certain amount of allowable, had not produced at least that much in at least one of the months preceding the proration period, it would receive an allowable equal only to the greatest amount it had produced in the preceding 12 months rather than receiving the greater allowable, which might be beyond its capability to produce.
(d) Hearing Evidence
There was a considerable amount of testimony for and against the proposal to limit the monthly allowable to its demonstrated capability to produce. Sam Giovinco, for Mesa, testified that the current proration formula was not distributing allowable equitably within the field. Giovinco stated that under the current rules, some operators are forced to shut in their wells because they produce their allowable too quickly and are forced to endure periods without production. This overproduction occurs because under pre1994 amendments, allowables were assigned to wells that were not capable of producing the gas.
Gregory J. Natyzak, testifying on behalf of OXY, stated that 11% of the total allowable of the field is being assigned to wells that cannot produce it. Natyzak stated that this assignment serves no purpose as the underage is simply increased and market demand goes unsatisfied. These slower-producing wells can never produce their allowables each period, with the result that the underage is not produced and eventually is canceled. Even if the wells apply to have the underage reinstated after it is canceled,' many wells have accumulated underage greater than their reserves so that the underage can never be produced. According to Natyzak, assigning allowables only to wells which have the capacity to produce them will allow market demand to be met as well as provide an incentive for leases to produce their assigned allowable to protect their correlative rights.
Dr. Jerry Vairogs also testified on behalf of OXY’s proposal to limit allowable to capacity. Dr. Vairogs testified that such a step was necessary because much of the existing underage accrued by wells in the Hugoton Field is beyond their production capacity.
Joseph D. Candella, of Vastar, testified that under the pre-1994 amendment, allowables are taken away from wells with better reservoir quality and production capabilities and given to the slower-producing wells in order to equalize production. However, according to Candella, the current underage in the Hugoton Field is simply not producible in a reasonable amount of time.
K. Todd Montgomery, of Anadarko, testified in favor of limiting production to capacity. He stated that the pre-1994 amendment system fails at meeting market demand because it shifts allowables to wells which cannot produce them, causing those wells to accumulate underage which they have no hope of ever producing.
Ronald L. Cook, a consultant to the KCC, testified on behalf of the KCC. He testified that the KCC consulting staff was opposed to OXY’s proposal defining a well’s capability as the highest month’s production in the preceding 12 months. Cook stated that this was not a true measure of the well’s ability to produce and instead favored a “three month average” in which the well’s capability was defined as an average of its 3 highest months’ production in the preceding 12 months. According to Cook, capacity to produce is generally related to the amount of reserves in a well. Those wells with a large volume of reserves generally have a higher capacity to produce than wells with less reserves.
Don Ray George, of Don Ray George and Associates, testified in favor of OXY’s proposal. In his opinion, the definition of capacity which takes into account the 3 highest months of production overstates the capability of a well to produce on a sustained basis. However, George opined that some overstatement of capacity was necessary in order to give wells every opportunity to produce their allowable. George stated that while OXY’s plan would have the effect of generally reducing the allowable to wells located on the flanks of the Hugoton Field, these were wells that were having underage canceled under the current plan.
Gregory P. Womack, from Amoco, testified against the plan. Womack testified that he felt it was error to assign allowables based only on the capability of wells to produce rather than on the amount of gas underlying the unit. Womack also stated that it was inappropriate to limit a well’s allowable assignment to an arbitrarily defined capacity number because capacity can be modified, depending upon the level of control an individual operator has over its gas reserves and surface facilities.
The KCC concluded that there was no reason to assign allowables to wells that could not produce them. According to the KCC, doing so would simply prevent market demand from being met and encourage waste. As a result, the KCC amended the BPO to provide that no well except one in an overproduced status should be assigned a monthly allowable in excess of its capability. Capability was defined as the average of the 3 highest months of production over the preceding 12 months.
(e) Amoco’s Arguments
(1) Violation of K.S.A. 55-703
Amoco’s first contention is that the KCC’s decision violates K.S.A. 55-703 because it considers factors which are extrinsic to the common source of supply in determining capacity. According to Amoco, the KCC may only consider factors which exist in the common source of supply when it is promulgating rules and regulations regarding proration of the Hugoton Field.
K.S.A. 55-703(a) provides in part that the KCC
“shall regulate the taking of natural gas from any and all common sources of supply within this state in order to prevent the inequitable or unfair taking of natural gas . . . and to prevent unreasonable discrimination ... in favor of or against any producer in any common source of supply. In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permeability and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent.”
Amoco reads K.S.A. 55-703(a) as requiring the KCC to use a proration system which assigns allowables in proportion to the reserves underlying the lease and argues that the 3-month average is greatly influenced, not by flie amount of gas underlying the lease or other factors intrinsic to the Hugoton Field but, rather, factors that are extrinsic to the Hugoton Field. The essence of Amoco’s argument is that while the proration system assigns allowables based upon the ability of wells to produce at a common pressure, thus equitably distributing allowables, the limitation of allowables to the demonstrated 3-month average brings in many factors that have nothing to do with the amount of gas underlying the reservoir, viz., the operating pressure of the wells gathering lines, the capacity of those lines, differing markets for natural gas between operators, and mechanical problems.
The district court determined that K.S.A. 55-703(a) does not operate in a vacuum but instead must be read in conjunction with K.S.A. 55-704, which authorizes consideration of extrinsic factors by providing that the KCC may
“promulgate such rules and regulations as may be necessary for the prevention of waste as defined by this act, the protection of all water, oil or gas-bearing strata encountered in any well drilled in such common source of supply, ascertaining the several factors entering into the determination of the productive capacity of each well, the total productive capacity of all wells in the common source of supply, the establishment of such other standard or standards as the commission may find proper to determine the productive capacity of each well and of all wells in such common source of supply, and as the commission may find necessary and proper to carry out the spirit and purpose of this act . . . .”
K.S.A. 55-704 provides the KCC with the authority to set standards for determining the productive capacity of individual wells within the Hugoton Field and other rules and standards necessary and proper to carry out the purpose of the Gas Conservation Act. As previously stated, the KCC’s duty under the Act is to prevent waste and protect correlative rights. Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 254, 699 P.2d 1002 (1985). The KCC must also allow sufficient production to meet the market demand if such can be done without waste. Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 24, 386 P.2d 266 (1963).
While K.S.A. 55-703(a) provides a list of factors existing in the source of supply which shall be considered by the KCC in determining each well’s productive capacity, the KCC is vested with wide authority under K.S.A. 55-704 to set rules and standards in order to determine the productive capacity of wells in the field. Nothing in K.S.A. 55-703(a) provides that the list of factors contained therein is exclusive; rather, K.S.A. 55-703(a) provides that such factors intrinsic to the common source of supply shall be considered.
The 1994 amendment gives equitable consideration to those pertinent factors listed in K.S.A. 55-703(a) in that each well is assigned an allowable based on its performance in a shut-in production test against a common operating pressure. The 1994 amendment changed the formula by providing that the allowables calculated through the use of the above test is limited to the demonstrated capacity of the well to produce during a certain period of its 3-month average.
Amoco argues that the KCC cannot rely on the broad authority granted by K.S.A. 55-704 because it explicitly states that any standards set by the KCC must be within the “spirit and purpose” of the Act. Amoco asserts that the spirit and purpose of the Act as set forth in K.S.A. 55-703(a) is the protection of correlative rights in order to allow each lease to ultimately produce the amount of gas underlying it. However, while the protection of correlative rights is indeed one of the purposes of the Act, there are also two other purposes which must be considered: the prevention of waste and market demand. See Colorado Interstate Gas Co., 192 Kan. at 24. All of three purposes must be considered by the KCC in promulgating standards for the Hugoton Field.
K.S.A. 55-704 confers upon the KCC broad powers to set standards for determining the productive capacity of each well in the field in order to accomplish the three purposes of preventing waste, protecting correlative rights, and satisfying market demand. We conclude that the actual demonstrated producing ability of each well is a factor that may be considered by the KCC and its consideration is within the statutory authorization of the Act.
(2) Evidentiary Basis for Amendment
Amoco contends that the limitation of an allowable to a well’s demonstrated capacity to produce under the 3-month average is not supported by the evidence in that the evidence fails to establish that such a limitation prevents waste, meets market demand, and protects correlative rights. Amoco argues that the KCC amendment does not further any of these objectives.
Contrary to the arguments of Amoco, there is substantial competent evidence in the record to support a conclusion that the pre-1994 amendment system of allocating allowables encourages waste. Dr. Jerry Vairogs, of OXY, testified that wells in the Hugoton Field were receiving allowables so far in excess of capacity that they could not ever produce their underage. Joseph D. Candella, of Vastar, testified that the current underage in the Hugoton Field is simply not producible in a reasonable amount of time. K. Todd Montgomery, of Anadarko, also testified that the old system of distributing allowables caused wells to accrue more underage than they could ever hope to produce. Gregory J. Natyzak, of OXY, stated that this assignment of underage to wells that cannot produce it serves no purpose, as underage is simply increased and market demand goes unsatisfied. According to Natyzak, many wells can never produce their allowables each period, resulting in the cancellation of underage. He concludes that the accumulation of underage has become such a serious problem because many wells have accumulated underage greater than their reserves.
There is also. substantial competent evidence in the record to support a conclusion that the pre-1994 amendment system had an adverse impact on market demand. While Amoco argues that between 1988 and 1991, the Hugoton Field produced between 99% and 100% of market demand, Sam Giovinco, of Mesa, testified that market demand was being met only because other wells in the field were overproducing. Joseph D. Candella and K. Todd Montgomery also testified that assigning allowables to wells that do not produce them causes difficulty in meeting market demand.
Amoco argues that the accumulation of underage does not encourage waste because gas that is not produced simply stays in the ground until it is produced. This argument ignores evidence which suggests that many wells are accumulating underage that will never be produced because the wells are unable to produce their monthly allowables. Moreover, there is evidence that many wells have accumulated underage greater than the reserves remaining underneath their leases. Instead, the continued assignment of allowables to wells which cannot produce them forces other wells to overproduce to meet market demand which subjects those wells to being shut in because they have used up their allowables. There is substantial competent evidence to support the conclusion that the assigning of allowables to wells that cannot produce them encourages waste and has a negative effect on the Hugoton Field’s ability to meet market demand.
Finally, Amoco argues that the restriction of allowables to capacity violates correlative rights because it takes that portion of the well’s allowable that would normally be underage and “respreads” it to other wells, thereby allowing them to ultimately produce more then their fair share of gas. Amoco further argues that by not allowing the well a chance to make up some of the allowable in excess of capacity as underage, correlative rights and the purpose of K.S.A. 55-703(a) are violated.
According to Amoco, if a well is limited to its capacity to produce by the 3-month average, it will not receive its fair share of allowables. Under the usual proration system, market demand is spread among the wells in the form of allowables. If a well does not produce its allowable, another well’s allowable does not increase; instead, the well is allowed to carry that part of the allowable forward as underage and produce it at a later date. However, if a well’s allowable is limited to its demonstrated capacity to produce, the well will not receive the share of allowable that is indicated by its deliverability factor. Instead, that allowable will go to other wells and will be in excess of the allowables they receive based on their deliverability factors.
Amoco argues, by way of illustration, that if market demand is 250 Mcf and there are two wells in the field, the wells receive their allowables based on their deliverability factors, which indicate the ability of wells to produce against a common pressure. If Well A and Well B both have the same deliverability factor, each will receive 125 Mcf as its allowable. If allowables are limited to capacity and, due to problems with the pipeline or other influences such as gathering line pressure, Well B has historically only been able to produce 100 Mcf, then Well B will be limited to an allowable of 100 Mcf and Well A will receive an allowable of 150 Mcf. Without a system of limiting allowables to capacity, both wells would receive 125 Mcf, and Well B would produce 100 Mcf and cariy the remaining 25 Mcf as underage, which it would be allowed to make up in the future. Under this scenario, Well A would probably still produce 150 Mcf in order to satisfy market demand and would be assessed 25 Mcf in overage, which it would have to cariy forward.
According to Amoco, the problem with the limitation of allowable to capacity, as illustrated by the above example, is that Well B is never allowed to make up the 25 Mcf and, instead, Well A receives a bonus of 25 Mcf. Over time, Well A will drain faster and eventually gas will migrate from Well B to Well A, causing a violation of correlative rights.
On its face, this example shows that the limitation of allowables to capacity will cause a violation of correlative rights. However, several other factors exist which blunt the effect of this limitation. First, there is evidence that demonstrated prior production, even under the 3-month average, actually overstates the well’s ability to produce over time. Therefore, in many cases, even the allowable assigned using the 3-month average will be beyond the capacity of the well to produce. For those wells which simply experienced some mechanical or other difficulties in the preceding months resulting in a low 3-month average, it must be remembered that the average is a moving one. Because a well is allowed to produce a number of times its actual allowable in any given period, the average will increase dramatically once the well begins producing.
In addition, because of earlier limitation, the wells’ shut-in pressure will be higher, resulting in an increase in allowables under the proration formula. Thus, wells that were once limited in capacity as the result of mechanical or pipeline problems will have an advantage in the calculation of further allowables because of the difference in pipeline pressure. This will allow the wells to make up production lost and help equalize any draining that may occur.
The above factors serve to mitigate any damage to correlative rights as the result of limiting allowables to capacity. There is a question as to how far the KCC must go to maintain equity in the Hugoton Field. K.S.A. 55-703 requires the KCC to regulate the inequitable or unfair taking of natural gas from the common source of supply in order to permit each developed lease to ultimately produce approximately the amount of gas underlying it without uncompensated cognizable draining. This court has found that the KCC’s duty under K.S.A. 55-703 is fulfilled when each owner is legally free to produce and is not denied the right or opportunity to produce his or her allowables. In Colorado Interstate Gas Co., 192 Kan. at 25, we stated:
“The Commission could not be required to shut in an entire gas field to protect correlative rights where some of the producers desired to cease production and hold a gas field for a reserve. The Commission could not be required to unduly restrict production in a gas field because some producers desired to deplete the gas as a very low rate regardless of the reason.”
The situation is the same in this case. The record indicates that many wells were being assigned allowables that they had no hope of producing, forcing other wells to overproduce in order to meet market demand. Those wells were then subject to being shut in and not allowed to produce until the wells producing at a slower rate could catch up. The reason for the slower rate of production was not that the gas under the wells could not be produced at a faster rate. Had that been the case, excess allowables would not have been assigned to them in the first place under the proration system. Instead, underage is accumulated due to such factors as contract disputes, loss of market, well mechanical problems, or high gathering line pressures. These are not factors within the control of the KCC and the KCC is not obliged to curtail production with resulting waste and unmet market demands based solely on the operator s production problems.
Amoco argues that the need to meet market demand cannot override the protection of correlative rights because K.S.A. 55-703(a) requires assignment of allowables that permit each operator to ultimately produce the amount of gas underlying the operator’s lease. However, in Colorado Interstate Gas Co., 192 Kan. at 24-25, we said:
“In a gas field such as the Kansas-Hugoton . . . , the responsibilities placed upon the Commission will clash. If the market demand cannot be supphed without waste, or if correlative rights cannot be protected without waste, or if correlative rights cannot be protected without unduly restricting production needed for market demand, one of the three, waste, market demand, or correlative rights, must suffer. . . .
“When waste, market demand, and correlative rights are in conflict the Commission must determine which is to be given preference. If the decision of the Commission is supported by the evidence, the courts cannot interfere.”
The evidence of record supports a conclusion that the 1994 amendment prevents waste and increases the ability to satisfy market demand even though the limitation may cause minimal damage to correlative rights. Under these circumstances, this court should not interfere with the KCC’s determination.
(3) K.S.A. 55-703 and K.A.R. 82-3-101(a)(17)
Finally, Amoco argues that the 3-month average provision violates K.S.A. 55-703 and K.A.R. 82-3-101(a)(17) because when allowables are respread from the underproduced well, the overproduced well and other wells receive an allowable that will permit recovery of more gas than that which underlies their leases by draining gas from the underproduced lease. Amoco also contends that the KCC violated its own rules in adopting this provision in that it failed to give proper notice to the parties, denying them of an opportunity to present evidence on the subject of respreading of allowables.
Under K.S.A. 77-621(c)(5), a district court is authorized to grant relief when the administrative agency has engaged in an unlawful procedure or has failed to follow prescribed procedure. Amoco contends that the KCC, in adopting the 3-month average, failed to follow its own prescribed procedures, specifically those contained in K.A.R. 82-1-230(c) and K.A.R. 82-1-232(a)(3). K.A.R. 82-1-230(c) concerns procedure at hearings and provides that each witness shall be examined and cross-examined under oath. K.A.R. 82-1-232(a)(3) concerns orders of the KCC and states that an order shall contain, among other things, a concise and specific statement of the relevant law and basic facts which persuade the KCC in arriving at its decision.
Amoco is concerned with the “respreading provision” of the KCC’s order limiting allowables to capacity. Amoco had ample opportunity to cross-examine witnesses on the general issue of limiting allowables to capacity, as this was one of the principal tenants of OXY’s proposal. Likewise, the KCC clearly stated the relevant law and facts that persuaded it to adopt OXY’s proposal with only a slight change in calculating the production capacity for each welk It appears, although it is by no means clear, that Amoco is complaining about the KCC’s method of instituting the 3-month average. In deciding to restrict allowables to capacity, the KCC stated:
“The Commission accordingly finds that the three-month average definition proposed by staff to be reasonable and a rehable measure for determining the well’s capacity and for calculating allowables. The means, however, to achieve this decision warrants further study. The Commission shall therefore refer this matter to a study group comprised of industry and Commission staff. This study group shall then deliver to the Commission on or before June 1, 1994, its recommendation.”
On May 26, 1994, the KCC issued a supplemental order adopting the recommendation of the staff as to the formula to calculate allowables.
Amoco alleges that what it terms to be the “respreading provision” was implemented by the study group following this decision. However, it is clear that the study group simply provided a mechanism by which the order of the KCC could be carried out. The method for calculating allowables is simply the use of the 3-month average that was the subject of debate before the KCC. The study group’s proposal simply implemented the decision of the KCC on the matter. Thus, no new hearings were required.
Amoco asserts that the so-called “respreading provision” is a new idea that was put in at the last minute. However, the record does not support such a conclusion. Amoco’s use of the term “respreading provision” is misleading. Under the formula adopted by the KCC, a well’s allowable is limited to its capacity. Any remaining market demand is assigned in the form of allowables to other wells in the field. This was the same method that was heavily debated at the original hearings. In fact, the KCC’s consultant, Ronald L. Cook, was cross-examined on the exact subject of what Amoco now terms the “respreading provision.”
The record demonstrates that the KCC did not enact any part of the provision limiting allowables to capacity without a full hearing, cross-examination, and an explanation of the law and facts supporting its decision.
IV. EXPANSION OF THE TIME TO PRODUCE EXISTING UNDERAGE
Both OXY and Vastar appeal that part of the KCC’s order which provides for a 10-year period in which all canceled and reinstated underage must be produced before being permanently canceled. OXY argues that the extension was adopted without notice or an opportunity to be heard. Additionally, OXY and Vastar argue that the KCC’s order arbitrarily extends the period in which canceled and reinstated underage may be produced.
(a) Background
In order to resolve this issue, it is necessary to review some of the procedural history relating to the cancellation of underage in the Hugoton Field. Prior to the amendment complained of by OXY and Vastar, any well with an adjusted deliverability in excess of 300 Mcf was allowed to accumulate underproduction, or underage, up to six times its current allowable. Any underage in excess of this figure was canceled. Once underage was canceled, the well oper ator had 3 years from the date of cancellation to apply for reinstatement and thereinafter, a period of 5 years in which to produce the underage.
Part of OXY’s proposed amendment to the BPO was a proposal that all canceled underage either reinstated or eligible for reinstatement at the time of the order be reinstated and produced by December 31, 1994, or be permanently canceled. OXY also proposed that any underage canceled after the date of the order shoúld be permanently canceled and reassigned to overproduced wells in addition to their allowable the next month.
(b) Hearing Evidence
There was a substantial amount of testimony regarding the cancellation of underage. Gregory J. Natyzak, of OXY, testified that the current system of working off underage is not efficient and that the system should be modified so that future underage is minimized. If underage is not cleaned up, it will continue to distort the perceptions and workings of proration in the Kansas Hugoton Field. He noted that prior modifications have been added to the proration order to give operators more time to produce underage, yet underage continues to grow. Natyzak was in favor of OXY’s proposal that all existing underage be subject to cancellation in 1994.
Sam Giovinco, of Mesa, also testified in favor of OXY’s proposal. He stated that an incentive is necéssary to encourage operators to produce their allowables. He felt that operators who do not produce their allowables should suffer some cancellation.
Gregory Womack of Amoco, however, felt that OXY’s proposal regarding underage removes needed flexibility from the system and fails to recognize the differences between individual operators and the amount of control those operators have over their reserves. Womack testified that a majority of the underage in the field is in fact producible and has value, especially if infill wells are allowed to work off the parent well’s underage.
According to Womack, the production of underage provides an incentive to make investments. He stated that if Amoco could gain control of its facilities and makes some necessary upgrades, it would be able to work off its accumulated underage in 6.14 years, assuming a market demand of 400 Bcf per year. A lower market demand would allow it to work off its underage even sooner. Under cross-examination, Womack admitted that if Amoco cannot make the changes, it would take Amoco 9.6 years to work off its underage under a best-case scenario. Womack stated that, in order to protect correlative rights, underage should never be canceled because it represents an allowable based on the reserves underlying the well.
Lester Wilkonson, an independent petroleum consultant, testified that the ability to accumulate underage is not an impediment to the protection of correlative rights but instead enhances an operator’s capability to protect such rights. In his opinion, underage should never be canceled in the.first place because it represents gas under the lease. He also stated that the present system is ineffective because it allows underage to be canceled, reinstated, recanceled, and then re-reinstated, with the effect that most cancellation simply occurs on paper.
Ronald L. Cook, of the KCC staff, also testified in opposition to OXY’s proposal. Cook stated that canceled underage may be viewed as an opportunity to produce gas that might possibly be recovered within a certain time period if the operator chooses to improve the well’s capability. According to Cook, the KCC staff felt that OXY’s proposal to cancel underage provides too short a time period for operators to make up their current underage plus the reinstated underage. Instead, the staff proposed that reinstated underage be made up by December 31, 1997, or be permanently canceled. The staff further proposed that any underage canceled during any calendar year be made up by the end of the next calendar year or be permanently canceled. Cook stated that there needs to be a time in which canceled and reinstated underage should be canceled permanently.
Ken Milbum, of Williams Natural Gas Company, testified that permanent cancellation of underage leads to harsh and unfair results because underage serves as an incentive to drill infill wells. In his opinion, producers should be provided an adequate time to make up underage.
c) The KCC’s Decision
The KCC determined that adopting OXY’s proposal would adversely affect the rights of operators who relied on the current provisions of the BPO. The KCC also found that allowing wells an opportunity to produce their existing underage was important to the state of the Hugoton Field and that producers needed a reasonable time to produce existing underage. Accordingly, the KCC rejected both OXY’s proposal and that of its own staff by implementing a 10-year time period within which all existing underage would have to be produced. This 10-year period was made subject to KCC oversight, and the KCC reserved die right to hold hearings on whether this period should be extended or reduced, depending upon the situation. However, the KCC also adopted its staff’s proposal for underage canceled after December 31, 1993. Under the KCC’s order, operators accumulating underage after that date would have 1 calendar year following the year in which the underage is accrued to produce that underage or see it permanently canceled.
(d) Arguments of the Parties
(1) Notice of Hearing
OXY’s initial argument is that the KCC erroneously extended the time in which to produce underage without proper notice and a chance for a hearing. OXY argues that because no party had requested that the KCC lengthen the time period in which to produce underage, that proposal was not before the KCC. According to OXY, the KCC violated concepts of fundamental fairness in adopting the 1994 amendment.
This argument was first brought to the KCC’s attention in OXY’s petition for reconsideration. In response to this argument, the KCC stated:
“The objecting parties are correct that no notice was given specifically addressing the 10-year extension. Notice was given, however, in connection with OXY’s application that the underage issue and paragraph (p) of the Order would be addressed by the Commission. The Commission does not believe that specific notice was required and that the notice given by OXY in connection with its application was sufficient notice for the Commission to amend paragraph (p) of the Basic Proration Order.”
The district court affirmed the KCC’s denial of OXY’s petition for reconsideration on this issue, stating:
“In its ‘Notice of Hearing’ the KCC did disclose that a proposed amendment for ‘[changing] the dates for reinstatement and production of existing canceled underage and reinstated underage’ would be heard. This notice should have been a clear indicator to any interested party that the KCC might consider either lengthening or shortening the time to produce canceled and reinstated underage. . . .
“Clearly questions concerning pre-1994 underage could be expected to be addressed by the KCC when the Commission gave notice that it would consider ‘changing the dates for reinstatement and production of existing canceled underage and reinstated underage.’ Given the fact that OXY proposed that the time period for permanently canceling pre-1994 underage should be shortened, while the KCC Staff proposed to lengthen the time period and other parties argued for no permanent cancellation of underage, it is evident that the parties involved understood the significance of the notice. Though the KCC may never have specifically stated that it would consider establishing a ten (10) year deadline for production of such underage, sufficient notice was given to OXY and the other interested parties that the permanent cancellation date for the underage would be under review and subject to possible change. Thus OXY’s contention, that they were provided insufficient notice of the change made by the KCC to paragraph (p) of the Kansas Hugoton BPO, is not persuasive.”
K:S.A. 55-706(a) provides that the KCC may institute proceedings upon petition of any interested party, upon petition of the attorney general on behalf of the State, or on its own motion. These proceedings are to be commenced in the manner provided by K.S.A. 55-605 and amendments thereto. K.S.A. 55-605(a) requires the KCC to give reasonable notice to interested parties and that such notice should contain such information as will briefly and adequately disclose the matter to be considered or the relief sought.
The notice relied upon by the KCC and the district court was actually issued by OXY in conjunction with its application to amend the BPO. However, it is not a part of the record on appeal. A copy is included in the appendix of Amoco’s appellee’s brief. It states, among other things, that OXY is requesting a change in the dates for reinstatement and production of existing canceled underage and reinstated underage.
Even disregarding the notice given, however, it was apparent from OXY’s application that the time for reinstatement and production of underage was at issue. Although OXY proposed to shorten the time period for the production of canceling underage, its proposal was not the only one on the table. The KCC staff countered with a proposal of its own to lengthen the time for producing canceled underage while shortening the time to produce underage in the future. Both of these proposals, as well as the testimony of several witnesses that underage should not be canceled at all, were subject to cross-examination. Under these circumstances, although no notice was given that a 10-year time period in which to produce underage was at issue, the issue of the time for producing canceled underage was sufficiently developed to allow the KCC to amend the BPO to extend the time to produce underage if such an amendment is supported by the evidence. Therefore, OXY’s initial argument, that the extension of time to produce canceled underage was adopted without notice, fails.
(2) Lack of Evidentiary Support
OXY and Vastar also argue that the extension of time to produce underage is not supported by the evidence. They contend that there was no evidence tending to support the adoption of a 10-year time period for the production of underage and that such period is contraiy to evidence and the remaining provisions of the KCC order.
It is true that no evidence was presented specifically advocating a 10-year time period for the production of pre-1994 underage. Nevertheless, there was evidence in the record that OXY’s proposal was too harsh and would damage correlative rights. There was also evidence that the production of underage was essential to the protection of correlative rights and that if the underage proposal was amended, a reasonable time was needed to permit those producers relying on the present BPO a chance to increase production and produce their accumulated underage.
Based upon this evidence, the KCC determined that it should adopt the proposal of its staff and require any new underage to be made up within the next calendar year. Along with this determi nation, the KCC decided that, in order to be fair to producers who were relying on the BPO’s current application of underage rules, the KCC needed to give producers a reasonable time- in which to make up their underage. Each of these determinations is supported by substantial competent evidence.
The question thus becomes whether substantial evidence supports the 10-year period of time to produce canceled underage. According to OXY and Vastar, the adoption of the 10-year period was arbitrary and capricious because no proposal specifically argued for such a period. There is, however, evidence which supports the KCC’s determination.
The BPO, as it existed prior to amendment, provided a period of 3 years to reinstate underage and 5 years after to produce it, for a total of 8 years. However, testimony showed that very little underage was being permanently canceled because the rules allowed for underage to be canceled, reinstated, recanceled, and then re-reinstated. OXY’s proposal was that all canceled underage either reinstated or eligible for reinstatement at the time of the order be reinstated and produced by December 31, 1994, or be permanently canceled. The KCC staff proposed that reinstated underage be made up by December 31, 1997, or be permanently canceled. There was also evidence, however, that other proposals adopted by the KCC, such as an incentive for infill drilling and the ability of both the infill and the original well to work off the underage of the lease, would make more of the underage in the field ultimately producible. According to Amoco’s expert witness, if Amoco could make necessary improvements to its facilities, it could work off its accumulated underage in 6.14 years or sooner, depending on market demand. However, this ability was dependent on Amoco gaining control of its production facilities, which could take some time. Without such changes, Amoco would take approximately 9.6 years to work off its underage.
In addition to testimony that allowing producers time to produce underage was vital to the protection of correlative rights, the KCC heard some testimony indicating that underage should never be permanently canceled. Both Gregory Womack and Lester Wilkon son testified that because underage actually represents gas reserves underlying the lease, it should never be subject to cancellation.
Under these circumstances, the KCC crafted a compromise after viewing the evidence as a whole. The KCC decided to create an incentive to drill infill wells and produce allowables in an orderly fashion. The KCC further decided to limit the production of new underage by restricting allowables to the demonstrated capacity of the wells to produce them and by providing for the cancefiation of new underage after 1 year. However, the KCC also decided to give producers relying on the BPO every opportunity to protect their correlative rights by making investments in equipment and upgrading their production by providing them with a 10-year period in which to produce existing underage.
As we have stated above, our standard of review is that we may not set aside an- order of the KCC merely because we might have reached a different conclusion if we had been the trier of fact. Only when the evidence shows that the KCC’s determination is so wide of the mark as to be outside the realm of fair debate may we set aside the order. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474, 749 P.2d 21 (1988). Although this court might not have reached the same conclusion when viewing the record as a whole, substantial competent evidence supports the KCC’s decision concerning the 10-year period to produce underage. The KCC’s decision is not so wide of the mark as to be outside the realm of fair debate.
V. INTERVENTION
OXY argues that the KCC erred in allowing certain pipeline companies to intervene in this action. According to OXY, the pipeline companies have no rights at issue in this case, and the KCC’s order allowing them to intervene was unreasonable, arbitrary, and capricious.
(a) The KCC ‘s Decision
The action of which OXY complains occurred when several pipeline companies made motions to intervene. OXY objected to this intervention on the grounds that none of the pipeline companies had correlative rights in the matter. The KCC found that pipeline companies had traditionally been permitted to participate in the KCC meetings and might be prejudiced if they had not been allowed to participate in this hearing. The KCC further found that it had the power to limit the pipelines’ participation in order to prevent undue prejudice. Accordingly, the KCC granted the motions to intervene over OXY’s objections. The KCC also denied OXY’s petition for rehearing on this issue, finding that intervention of the pipelines was proper.
(b) The District Court’s Decision
The district court found that because the KCC was vested with wide discretion in allowing parties to intervene, and because OXY alleged no prejudice as a result of this intervention, the decision should not be overturned on review. We agree.
K.S.A. 77-521(b) allows the KCC discretion to grant a petition for intervention upon a determination that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings. While the evidence of record supporting the decision that intervention was in the best interests of justice is sparse, the intervention did not impair the orderly and prompt conduct of the proceedings. Further, OXY provides no evidence of prejudice other than its contention that intervention caused unnecessary delays. OXY does argue that allowing the intervention of the pipeline companies permitted those companies to inquire about matters which were not pertinent to the BPO and were of questionable relevance. However, OXY makes no attempt to show how these matters in any way affected any of the amendments to the BPO of which OXY now complains. Indeed, the intervention of the pipelines had no effect on any of the amendments adopted by the KCC. Thus, like the trial court, we conclude that there is no abuse of discretion established and further conclude that no prejudice to any party has been established. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. at 475.
Affirmed.
Abbott and Larson, JJ., not participating.
Robert H. Miller, C.J., Retired, assigned. | [
-12,
106,
-3,
125,
12,
-32,
56,
26,
73,
-69,
-25,
83,
41,
-54,
29,
125,
-53,
13,
85,
97,
-57,
-73,
19,
-47,
-108,
-13,
-39,
-35,
50,
93,
100,
-41,
72,
80,
-54,
-43,
-58,
74,
87,
-34,
-114,
0,
-103,
-31,
89,
8,
54,
43,
118,
11,
81,
47,
-13,
41,
24,
-29,
-87,
14,
-33,
44,
73,
-112,
-54,
-121,
28,
20,
33,
-122,
-112,
-25,
-8,
62,
-102,
56,
24,
-20,
83,
38,
-106,
116,
15,
-101,
-88,
-86,
107,
3,
52,
-113,
104,
-104,
15,
-42,
-113,
-90,
-48,
24,
99,
32,
-106,
-103,
93,
22,
15,
126,
-18,
-123,
95,
125,
18,
-98,
-110,
-95,
15,
101,
-104,
23,
-61,
-29,
-112,
101,
-63,
-78,
92,
-121,
122,
31,
-114,
-72
]
|
On the 18th day of January, 1991, petitioner Lavone A. Daily was indefinitely suspended from the practice of law in Kansas. In re Daily, 248 Kan. 158, 804 P.2d 993 (1991).
On the 29th day of April, 1994, petitioner filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (1994 Kan. Ct. R. Annot. 223). On February 24,1995, a hearing was held before a panel of the Board in Topeka, Kansas.
On April 4, 1995, the panel filed its report setting out the circumstances leading to petitioner’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel unanimously recommended that petitioner be reinstated to the practice of law in Kansas. Since the report recommends reinstatement, nothing further is required of petitioner, and, pursuant to Supreme Court Rule 219, the matter is deemed submitted for consideration by this court.
In State v. Russo, 230 Kan. 5, Syl. ¶ 4, 630 P.2d 711 (1981), this court stated eight factors to be considered in determining whether a disbarred attorney should be readmitted to the practice of law. The panel stated that it considered the evidence as to all of those factors. The panel, in rejecting the Disciplinary Administrator’s contention that the underlying offense was so serious as to preclude reinstatement, acknowledged that this is an issue on which reasonable people “may and do differ.” The panel further found such an argument for permanent disbarment was inconsistent with the discipline of indefinite suspension. The panel concluded:
“While this Panel recognizes the seriousness of Ms. Daily’s deceit of her stepdaughter for her own purposes, compounded by perjury, the conduct does not seem as morally repugnant as the underlying offenses in Russo, who had been disbarred. The Panel concludes that in view of Ms. Daily’s age, her efforts to rehabilitate herself for reinstatement, her obvious humiliation by the discipline imposed upon her, and the undisputed evidence from mental examinations that Petitioner is mentally competent to practice law, that no purpose would be served by lengthening the suspension beyond the four years Ms. Daily has now been suspended. As the Court and the panel who heard the original disciplinary case concluded, Ms. Daily’s conduct was aberrational in an otherwise long legal career during which she apparently enjoyed an excellent reputation. The suspension has been of a length sufficient to appropriately serve as a deterrent to others who might be similarly inclined and has appropriately punished Ms. Dailywho appears unlikely to repeat similar behavior.”
Dated this 29th day of June, 1995.
A majority of this court, after carefully considering the record, accepts the recommendations of the panel and finds that petitioner should be reinstated to the practice of law. This court also finds that petitioner should be required to comply with Supreme Court Rule 807(b) (1994 Kan. Ct. R. Annot. 470).
It Is Therefore Ordered that, upon proof of her compliance with Supreme Court Rule 807(b), Lavone A. Daily shall be reinstated to the practice of law in the State of Kansas. At that time, the Clerk of the Appellate Courts is directed to enter petitioner’s name on the roll of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that the costs of this proceeding be assessed to petitioner and that this order be published in the official Kansas Reports. | [
-112,
-54,
-52,
-35,
-118,
97,
-74,
-66,
81,
-45,
103,
115,
-19,
-34,
76,
105,
18,
109,
80,
105,
-63,
-74,
119,
-63,
-10,
-5,
-40,
-43,
-69,
111,
-28,
-3,
72,
50,
10,
85,
70,
-54,
-39,
84,
-118,
6,
11,
-52,
91,
-64,
-74,
105,
1,
11,
-75,
-50,
-93,
44,
24,
78,
-24,
108,
91,
-83,
80,
-79,
-110,
-107,
111,
18,
-93,
4,
28,
7,
-8,
47,
-100,
56,
9,
-24,
115,
-42,
-126,
112,
79,
-55,
13,
103,
107,
-89,
29,
-89,
-72,
-88,
30,
51,
-99,
-26,
-104,
80,
75,
-116,
-106,
-35,
100,
84,
47,
120,
-13,
-51,
23,
108,
12,
-54,
-76,
-77,
-49,
51,
-50,
-71,
-21,
39,
48,
77,
-112,
-30,
92,
82,
114,
27,
-50,
52
]
|
The opinion of the court was delivered by
Six, J.:
This is a first-impression automobile insurance coverage case arising from a hunting accident. A shotgun accidentally discharged, injuring Tad Garrison, plaintiff, while Kurt Pfannenstiel, defendant, removed it from Garrison’s car. Garrison’s car was insured by State Farm Mutual Automobile Insurance Company (State Farm). Pfannenstiel’s car was insured by Dairyland Insurance Company (Dairyland).
The district court held that the State Farm and Dairyland policies did not provide liability coverage; the Court of Appeals reversed the district court. The State Farm policy also provided personal injury protection (PIP) benefits for the injuries to Garrison. Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan. App. 2d 918, 894 P.2d 226 (1995).
We granted State Farm’s and Dairyland’s petitions for review. Our jurisdiction is under K.S.A. 20-3018(b). Dairyland adopts State Farm’s arguments.
THE QUESTION
Do injuries caused by an unexplained accidental discharge of a shotgun occurring while the gun is being removed from a car during a hunting trip arise out of or result from the use of the car?
The answer is “yes.” We affirm the Court of Appeals.
FACTS
The facts and procedural history are stated in the Court of Appeals opinion:
“Garrison was seriously injured when a shotgun discharged as Kurt Pfannenstiel removed the gun from Garrison’s car during a hunting trip. Garrison sued Pfannenstiel for negligence and Garrison’s automobile insurer, State Farm, for personal injury protection (PIP) benefits.
“State Farm defended on the basis that the accident did not arise out of the ownership, use, or maintenance of a motor vehicle and counterclaimed for a declaration that the liability portion of Garrison’s policy did not afford coverage to Pfannenstiel for Garrison’s negligence claim against him. Dairyland, Pfannenstiel’s automobile insurance carrier, intervened to seek a ruling that no liability coverage existed under the policy it had issued.
“The case was submitted on an agreed record consisting of the depositions of Garrison and Pfannenstiel plus copies of the respective insurance policies. After reviewing briefs and hearing arguments, the trial court ruled the accident did not arise out of the use of a vehicle and entered judgment in favor of both insurance carriers.
“This unfortunate accident occurred in September 1992, when Garrison and Pfannenstiel went dove hunting in rural Ness County. Garrison drove his State Farm insured car during the entire hunting excursion.
“The two men stopped on several occasions to shoot birds. Each time they entered and left the car they stowed their guns between the front seats along the console with the barrels pointing toward the floorboard.
“After several stops they saw some birds and decided that Pfannenstiel would get out of the car and Garrison would then drive on to the far end of a line of trees and hunt there. Garrison slowed the car; as it approached or came to a stop and Pfannenstiel was getting out of the car, Pfannenstiel’s shotgun discharged, striking Garrison in the leg and causing a significant injury. Neither party knew what caused the shotgun to fire. Pfannenstiel did not remember if the shotgun came in contact with any part of the car as it fired, although part of Garrison’s injury was caused by the knob of a radio which the blast forced through his leg. Neither Garrison nor Pfannenstiel knows if the safety had been engaged before Pfannenstiel picked up the gun.
“There are essentially three portions of the insurance policies which are in issue. As to Garrison’s PIP claim, State Farm contested coverage under the following provision:
‘SECTION II — NO FAULT — COVERAGE P
What We Pay
We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the ownership, maintenance or use of a motor vehicle.’
“As to State Farm’s counterclaim that liability coverage did not apply to Garrison’s tort claim against Pfannenstiel, the following provisions are involved:
‘SECTION I — LIABILITY—COVERAGE A
We will:
T. pay damages which an insured becomes legally hable to pay because of . . . bodily injury to others, and damage to or destruction of property . . . caused by accident resulting from the ownership, maintenance or use of your car; and
‘2. defend any suit against an insured for such damages ....
Who Is an Insured
When we refer to your car . . . insured means:
‘4. any other person while using such a car if its use is within the scope of the express or implied consent of you or your spouse.’
“The pertinent language of the Daiiyland policy provides:
‘We promise to pay damages for bodily injury or property damage for which the law holds you responsible because of a car accident involving a car we insure.’
‘[“Car accident” is defined as] “an unexpected and unintended event that causes injury or property damage and arises out of the ownership, maintenance, or use of a car or other motor vehicle.’ ” 20 Kan. App. 2d at 919-21.
DISCUSSION
Standard of Review
The Court of Appeals correctly stated the standard of review:
“The issue we consider does not hinge on any factual determination but rather on the interpretation of what the policy requires for an accident to arise out of the ownership, maintenance, or use of a motor vehicle. This is a legal question upon which our review is unlimited.” 20 Kan. App. 2d at 922.
The facts were not controverted, therefore the construction and effect of this contract of insurance is a matter of law to be determined by an appellate court. See 20 Kan. App. 2d at 922. Our review must also consider the statute under which the insurance policy was issued: the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. KAIRA requires an automobile owner to obtain liability insurance that provides “personal injury protection benefits to the named insured ... for loss sustained ... as a result of injury” including “bodily harm . . . resulting from an accident arising out of the ownership, maintenance or use of a motor vehicle.” K.S.A. 1994 Supp. 40-3104(a), K.S.A. 40-3107(f), and K.S.A. 1994 Supp. 40-3103(i). K.S.A. 40-3107(b) requires that every motor vehicle liability insurance policy shall
“insure the person named and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States . . . , subject to the limits stated in such policy.”
Provisions in insurance policies required by KAIRA are to be construed liberally to achieve the legislature’s purpose to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, or use of a motor vehicle.
The Court of Appeals Opinion
The Court of Appeals cited and quoted several authorities on the meaning of the terms “arising out of” and “use” of a vehicle. The opinion noted that although the use need not be the proximate cause of the injury, there must be some causal connection between an injury and the use in order for there to be coverage. The causation test was described as: “[T]he use of the vehicle need not be the proximate cause of the injury, but rather it is sufficient if the use of the vehicle is a cause in a more liberal sense.” 20 Kan. App. 2d at 923. We agree.
Cases from other jurisdictions supporting coverage as including loading or unloading of a vehicle were discussed. Coverage applies whether the policy expressly defines “use” to include loading or unloading the vehicle. 20 Kan. App. 2d at 925-26. The policy provisions in this case do not expressly define “use” to include loading or unloading of a vehicle.
In addition to the cases cited by the Court of Appeals, the following hunting cases also support coverage: Nationwide Ins. v. Auto-Owners Mut Ins., 37 Ohio App. 3d 199, 203, 525 N.E.2d 508 (1987) (“The insured’s vehicle was being used to transport the men and their weapons on a hunting trip. This was a proper use of the truck and was foreseeable. As part of this use it was necessary that the guns be placed in the truck and the ammunition removed for that purpose. The injury was thus connected with the use of the truck as a means of transporting the parties’ hunting equipment and this relation was sufficient to come under the terms of the automobile policy.”); Kemp v. Feltz, 174 Wis. 2d 406, 412, 497 N.W.2d 751 (1993) (“[T]he use of a truck for a hunting trip is reasonably consistent with the truck’s inherent use.”).
We agree with the Court of Appeals’ reasoning that for insurance coverage to exist for accidental bodily injury, there is no requirement that the vehicle be either the proximate cause of the injury or physically contribute to the discharge of the gun. Coverage exists where the minimal causal connection between the use of the vehicle and the injury is provided by the foreseeable and reasonable use of the vehicle for hunting. See 20 Kan. App. 2d at 930.
Our conclusion is also supported by Toler v. Country Mutual Insurance Co., 123 Ill. App. 3d 386, 392, 462 N.E.2d 909 (1984) (“[T]here is no requirement of any actual physical contact between the vehicle and the instrumentality that was the immediate cause of the injury, here, the rifle held by defendant Lingle.”); Kemp, 174 Wis. 2d at 415 (“[T]he existence of a causal connection between the use of a vehicle and an injury does not require that the vehicle caused the injury” [citing Thompson v. State Farm Mut. Auto. Ins. Co., 161 Wis.2d 450, 462-63, 468 N.W.2d 432 (1991)]).
The Court of Appeals cited a cluster of Minnesota cases as providing the most persuasive support for State Farm’s position: State Farm Fire & Cas. Co. v. Strope, 481 N.W.2d 853 (Minn. App. 1992); Hanson v. Grinnell Mut. Reinsurance Co., 422 N.W.2d 288 (Minn. App. 1988); and Farmers Ins. Group v. Chapman, 416 N.W.2d 857 (Minn. App. 1987). The Court of Appeals noted that under Minnesota law, the vehicle must be an “active accessory” to the accident, but found no precedent to suggest that we would impose such a requirement. We agree. The Minnesota cases are factually distinguishable. We observe that the Minnesota Court of Appeals in Hanson noted:
“The Minnesota Supreme Court has suggested that a covered ‘use’ might exist where a vehicle is being used to transport or store guns during a hunting trip. See National Family Insurance Co. v. Boyer, 269 N.W.2d 10, 13 (Minn. 1978).” 422 N.W.2d at 290.
The transportation of guns during a hunting trip describes this case.
State Farm also relies on Fire & Cas. Ins. v. Illinois Farmers Ins., 352 N.W.2d 798 (Minn. App. 1984). Illinois Farmers is factually distinguishable from this case and was not discussed by the Court of Appeals. In Illinois Farmers, two pheasant hunters stopped their car and hurriedly pulled their guns out to go after pheasants. Both hunters were out of the car, and as one hunter tried to chamber a shell with his gun still partially in its case, it discharged. Half the gun barrel was inside the car. The homeowner’s insurance carrier brought a declaratory judgment action against the automobile insurance carrier to determine if the injuries arose out of the maintenance or use of the motor vehicle. Illinois Farmers did not find sufficient causal connection for auto insurance coverage. The court observed: “Morehouse was shot because Mattis was in a hurry to start hunting, not because of any use of the vehicle as a vehicle. The vehicle was the mere situs of the accident.” 352 N.W.2d at 800.
We endorse the statement in Farm Bureau Ins. Co. v. Evans, 7 Kan. App. 60, 62, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982), that “Kansas follows the majority rule that there must be some causal connection between the use of the insured vehicle and the injury” (citing Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 [1964]). We acknowledged the Esfeld Trucking language in Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 259, 833 P.2d 1007 (1992).
The Petition for Review — State Farm’s Contentions
We turn now to the arguments raised by State Farm in its petition for review and adopted by Dairyland.
State Farm asserts that the Court of Appeals erred in applying Kansas law. State Farm correctly cites Kansas cases holding that merely because a motor vehicle is the situs of an injuiy, the injury does not necessarily arise out of the use of the motor vehicle. State Farm quotes from Allied Mut. Ins. Co. v. Patrick, 16 Kan. App. 2d 26, Syl. ¶ 3, 819 P.2d 1233 (1991), which states: “[T]he automobile must, in some manner, be involved in the accident.” Patrick, in holding liability coverage did not apply to a sexual molestation, focused on the question of whether die sexual molestation occur ring in a car was an “accident,” and even if it was, whether the incident was an “auto accident.” In deciding that the incident was not a covered automobile accident, Patrick concluded: “We believe the better rule, and the one suggested by the Evans court, is that there must be some causal connection between the accident and the automobile allegedly involved.” 16 Kan. App. 2d at 29.
State Farm argues that the Court of Appeals failed to apply Kansas law to the facts. We disagree. Garrison’s car was more than the “situs of injury.” The injury occurred while the car was being used to transport dove hunters during a hunting trip. Garrison was driving. The engine was running. Garrison stopped the car while Pfannenstiel tried to exit with his shotgun to hunt doves. The shotgun discharged while Pfannenstiel was removing it from the car. Garrison had intended to drive further after Pfannenstiel was out of the car. The car was “involved,” in that the injury occurred while Pfannenstiel was removing his shotgun from the car and Garrison was driving the car. We hold, under the facts of this case, the injury sustained by Garrison, the driver, when a shotgun inside the car accidentally discharged as it was removed from the car, was a natural and reasonable incident arising out of the use of the car for hunting. During oral argument State Farm’s counsel was asked if he knew of any case in the country that supported State Farm’s position under a similar fact situation. He knew of none. We have not located one by independent research.
State Farm next contends that because Pfannenstiel’s gun was loaded, contrary to safe hunting practice, we should hold for public policy reasons the “use” of the car was not a normal use. State Farm’s argument has not been persuasive in other jurisdictions. See Transamerica Ins. v. United Pacific Ins. Co., 92 Wash. 2d 21, 29, 593 P.2d 156 (1979) (“[T]he mere fact that a vehicle may have been used unlawfully or an unlawful event may have occurred during its use, considered alone, does not relieve an insurer from liability if the accident is otherwise covered under the ‘ownership, maintenance or use’ provision of the automobile insurance contract. If the rule was otherwise policy coverage would he invalidated if one ran a stop sign, was guilty of speeding, or operating with defective equipment,”) (Emphasis added.); Kemp, 174 Wis. 2d at 412 (“Our Supreme Court [citation omitted] held that a death resulting from the accidental discharge of a weapon as a passenger removed the weapon from a van ‘arose out of die use’ of the van to transport and unload weapons. Transporting loaded firearms in a vehicle is an illegal activity .... Therefore, . . . we conclude that the illegality of the activity is not determinative of the question whether it is consistent with the vehicle use.’ ”) (Emphasis added.).
We agree with the reasoning in Kemp and Transamerica Ins. Garrison s car was being used to transport guns during a hunting trip. Transporting loaded guns in a car may be negligent and contrary to safe hunting practice. Negligent gun use is a separate issue from the determination that transporting guns for hunting is a “use” of a vehicle, so that an injury causally connected with such use is afforded insurance coverage. State Farm fails to show how extending insurance coverage in this instance either is contrary to public policy or encourages unsafe hunting practices.
State Farm also implies that the holding of this case may be expanded to include “drive-by” shootings. State Farm’s apprehension is misplaced. The difference between a hunting trip and a drive-by shooting seems obvious.
State Farm also contends that the Court of Appeals has construed the insurance policy contrary to the intent of the parties, i.e., the parties did not intend to insure for shooting accidents. We are not persuaded by State Farm’s conclusion. We cannot ignore the large body of case law from other jurisdictions that has construed similar policy language to include coverage for shooting accidents occurring during the removal of a weapon from a vehicle during a hunting trip. An automobile liability coverage clause is to be interpreted broadly to afford the greatest possible protection to the insured. Hamidian, 251 Kan. at 259.
State Farm suggests that the Court of Appeals has created: (1) an irreconcilable conflict by deciding that there is coverage both under the PIP and liability insurance provisions, and (2) an inconsistency by linking the existence of that liability coverage and the ultimate issue of whether Pfannenstiel negligently handled the gun, resulting in the injury. There is no conflict or inconsistency. Pfannenstiel made “use” of the car while riding in it during the hunting trip and exiting with his gun to hunt doves. Any negligent gun handling while leaving the vehicle does not change the fact that he was still making “use” of the vehicle.
Reversed and remanded to the trial court with instructions to enter judgment finding the accident arose out of the ownership, maintenance, and use of a motor vehicle along with the required findings of insurance coverage arising from such a judgment.
Affirmed.
Larson, J., not participating.
Robert H. Miller, C.J., Retired, assigned. | [
-79,
125,
-43,
-113,
9,
96,
34,
26,
114,
-13,
37,
83,
-21,
-21,
21,
105,
-18,
-67,
101,
105,
-107,
-73,
55,
-128,
-14,
59,
-80,
-59,
-110,
73,
108,
46,
93,
112,
10,
85,
-92,
14,
-59,
-36,
-122,
-122,
-69,
-15,
-39,
-48,
-88,
127,
-42,
75,
49,
-105,
-61,
46,
-110,
67,
41,
40,
75,
-83,
-95,
-15,
-21,
5,
-1,
18,
-77,
22,
-72,
39,
-40,
10,
-112,
49,
88,
-8,
122,
-90,
-110,
28,
41,
-103,
-124,
102,
103,
53,
57,
-51,
-20,
-104,
15,
-33,
15,
-51,
-102,
89,
35,
0,
-105,
-97,
115,
85,
-122,
-24,
-19,
93,
31,
-24,
7,
-54,
-112,
-79,
-17,
112,
20,
-26,
-25,
-113,
38,
101,
-49,
-30,
93,
85,
124,
-105,
-118,
-90
]
|
The opinion of the court was delivered by
McFarland, C.J.:
Jose Ponce was charged in Count I with possession of marijuana and in Count II with trafficking in contraband in a correctional institution (K.S.A. 1994 Supp. 21-3826), with the marijuana being the contraband. The district court, on motion of defendant, held K.S.A. 1994 Supp. 21-3826 was a constitutionally impermissible delegation of legislative authority and dismissed Count II. The State appeals therefrom pursuant to K.S.A. 1994 Supp. 22-3602.
We shall first determine the jurisdictional issue raised by defendant. He asserts that this court lacks jurisdiction by virtue of the district court having dismissed the appeal herein. The following is a chronological listing of the pertinent dates:
1994
September 26 Defendant files motion to dismiss Count II on ground that the statute defining the offense is constitutionally impermissible.
Motion heard and granted. October 3
October 10 Journal entry of October 3 action filed.
October Í1 State files: (1) its notice of appeal from dismissal of Count II and (2) motion to dismiss Count I by virtue of the appeal having been filed.
October 12 Defendant files a demand for speedy trial on Count I.
October 20 Order of dismissal (dated October 19) filed' herein, stating “the matter is hereby dismissed pursuant to plaintiff’s request.” The order referred to the matter before the court as being “plaintiff’s motion to dismiss.”
October 31 State files its docketing statement.
November 4 Show cause order issued by this court on the basis that we lacked jurisdiction as Count I was pending.
November 10 Journal entry of dismissal, dated October 11, filed specifically spelling out that Count I is dismissed without prejudice on motion of State.
Defendant argues that the order of dismissal filed October 20 dismissed the entire action, including the appeal, by using the language “the matter is hereby dismissed.” This is a tortured construction. That same order begins with the statement that the above “matter comes on for hearing on the plaintiff’s motion to dismiss.” That motion sought dismissal only of Count I to clear the way for the appeal of Count II to proceed. We conclude that we have jurisdiction to hear this appeal.
We turn now to the single narrow issue before us on the merits. Did the district court err in dismissing Count II on the ground that K.S.A. 1994 Supp. 21-3826 is a constitutionally impermissible delegation of legislative authority? A challenge to the constitutionality of a statute is a question of law. Our scope of review is, accordingly, unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. See Sedlak v. Dick, 256 Kan. 779, 793, 887 P.2d 1119 (1995); Chiles v. State, 254 Kan. 888, 897, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994); Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
K.S.A. 1994 Supp. 21-3826 provides:
“(a) Traffic in contraband in a correctional institution is introducing or attempting to introduce into or upon the grounds of any correctional institution or taking, sending, attempting to take or attempting to send from any correctional institution or any unauthorized possession while in any correctional institution or distributing within any correctional institution, any item without the consent of the administrator of the correctional institution.
“(b) For purposes of this section, ‘correctional institution’ means any state correctional institution or facility, conservation camp, state security hospital, state youth center, community correction center or facility for detention or confinement, juvenile detention facility or jail.
“(c) Traffic in contraband in a correctional institution is a severity level 6, nonperson felony.”
Prior to 1992, K.S.A. 21-3826 specified what items were contraband, and the crime was limited to those items unless consent had been given. The statute provided:
“Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
“Traffic in contraband in a penal institution is a class E felony.”
In 1993, the statute was amended to change “penal institution” to “correctional institution.”
Defendant contends that the district court correctly held that when the legislature scrapped the prior laundry list of contraband items in favor of making all items contraband unless consent was obtained by the administrator, the legislature was improperly del egating its authority to define offenses. Defendant argues that the separation of powers doctrine has been violated.
Article 2, § 1 of the Kansas Constitution provides: “The legislative power of this state shall be vested in a house of representatives and senate.” The Kansas Constitution creates three distinct and separate departments: the legislative, the executive, and the judicial. State v. Latham & York, 190 Kan. 411, 422, 375 P.2d 788 (1962), cert. denied 373 U.S. 919 (1963). The legislature alone has the power to define offenses and affix punishment. Courts are empowered only to ascertain whether an offense has been committed and, if so, to assess punishment. 190 Kan. at 422; see State v. Crawford, 104 Kan. 141, 143, 177 Pac. 360 (1919). However, this principle has been somewhat relaxed. Legislation enacted to punish as misdemeanors or otherwise to penalize the breach of rules promulgated by some subordinate official body created by the legislature has been allowed. 104 Kan. at 143.
The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Generally, while neither the federal nor Kansas constitution speaks directly to the doctrine of separation of powers, it has been recognized that the very structure of the federal and state systems of government gives rise to the doctrine. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980) (citing Dreyer v. Illinois, 187 U.S. 71, 47 L. Ed. 79, 23 S. Ct. 28 [1902]; Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 [1973] [tracing the historical development of the doctrine]; 16 Am. Jur. 2d, Constitutional Law § 277 et seq.).
It does not necessarily flow that an entire and complete separation is either desirable or was ever intended by the framers of the constitution. One department may overlap onto another. Although early decisions insisted on complete separation, later decisions have allowed a certain degree of blending or admixture of the three powers. An absolute separation of powers is impossible. Greenlee, 228 Kan. at 715-16 (citing Nixon v. Administrator of General Services, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 [1977]; Leek v. Theis, 217 Kan. 784, 539 P.2d 304 [1975]).
Generally, case law addressing the separation of powers doctrine involves one of two subdivisions: (a) the unlawful delegation of legislative authority to another branch of government and (b) the usurpation of the powers of one branch by another branch. Illustrative thereof are Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 811 P.2d 876 (1991), and Greenlee, 228 Kan. 712.
As previously noted, the only issue herein involves a claim of unlawful delegation of legislative authority. This type of violation occurs when there is an unlawful delegation of legislative authority to another branch of the government without sufficient standards to guide such authority. See, e.g., State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 701 P.2d 1314 (1985); State, ex rel., v. Mermis, 187 Kan. 611, 358 P.2d 936 (1961); State, ex rel., v. Hines, 163 Kan. 300, 182 P.2d 865 (1947).
In Kaufman, 248 Kan. at 956-57, we held:
“Legislative authority may be delegated to an administrative body where guidelines are set forth in the statute that establish the manner and circumstances of the exercise of such power. Where the legislature enacts general provisions for regulation and grants a particular state agency the discretion to fill in the details, [the appellate court] will not strike down the legislation as constitutionally impermissible unless such provisions fail to fix reasonable and definite standards to govern the exercise of such authority. U.S.D. No. 279 v. Secretary of Kansas Department of Human Resources, 247 Kan. 519, Syl. ¶ 6, 802 P.2d 516 (1990).
“Standards to guide an administrative agency in the application of a statute may be inferred from the statutory purpose. Less detailed standards and guidance to administrative agencies are required in order to facilitate the administration of laws in the areas of complex social and economic problems. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, Syl. ¶¶ 7, 8, 808 P.2d 1355 (1991).”
In testing a statute for adequacy of standards, the character of the administrative agency is important. What is a sufficient standard must necessarily vary somewhat according to the complexity of the areas sought to be regulated. The modem trend, which this court ascribes to, is to require less detañed standards and guidance to the administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems. Guardian Title Co. v. Bell, 248 Kan. 146, 154, 805 P.2d 33 (1991). Great leeway should be allowed the legislature in setting such stan dards. Tomasic, 237 Kan. at 585-86 (citing State ex rel., v. Bennett, 222 Kan. 12, 21, 564 P.2d 1281 [1977].
The State contends that the statute, by prohibiting any item without the consent of the administrator, has provided sufficient guidelines and therefore should be found constitutional. On the other hand, defendant argues that by eliminating the laundry list of prohibited items, the legislature has set the stage for an arbitrary exercise of authority by the institution’s administrator. The 1993 amendment to the statute is not as complete a departure from the prior law as defendant argues. Under the prior law any item specifically designated as contraband could be decriminalized if consent to have the item was obtained from the warden, superintendent, or jailer. We note also that the prior law listed “communication or writing” as contraband — two categories which obviously would need some definitional rules and regulations. The opportuniiy for the arbitrary exercise of authority which concerns defendant was present under the prior law.
Obviously, the administrator of a correctional facility, has a legitimate interest in items coming into, possessed within, or leaving the facility. The security of the facility, the safety of its employees, and the health of the inmates require appropriate control of such items. There are obvious problems with limiting contraband to a laundry list of items. Many items freely sold and generally considered innocuous in the hands of the general public can be dangerous in the hand of inmates of correctional facilities. Inmates have long exercised great ingenuity in creating new and dangerous uses for ordinary items. A meaningful laundry fist would be massive in length and never complete.
In Chapter 75 of the Kansas statutes, specifically K.S.A. 75-5201 et seq., the legislature provides standards for administration of correctional facilities. It is also there that the legislature has provided the standards for the authority delegated via K.S.A. 1994 Supp. 21-3826.
K.S.A. 1994 Supp. 75-5210 sets out the guidelines for the treatment of inmates, disciplinary rules and regulations, and other activities within correctional institutions. Specifically, persons committed to the institutional care of the Secretary of Corrections are to be dealt with humanely, with efforts directed toward their rehabilitation and return to the community. K.S.A. 1994 Supp. 75-5210(a). The Secretary is authorized to adopt rules and regulations for the maintenance of good order and discipline in correctional institutions, including procedures for dealing with violations. K.S.A. 1994 Supp. 75-5210(f). These rules and regulations are made available to inmates and/or published pursuant to K.S.A. 77-415 et seq. K.S.A. 1994 Supp. 75-5210(g).
The Secretary is authorized to appoint a warden of each of the correctional institutions under his or her supervision and control. K.S.A. 1994 Supp. 75-5246(a). The Secretary has the power and the duty to examine and to inquire into all matters connected with the government and discipline of the correctional institutions under his or her control, including the punishment of the inmates confined therein. The Secretary may require wardens to provide reports and to exhibit all writings pertaining to discipline within the correctional institutions. The Secretary is to adopt rules and regulations for the direction and government of the correctional institutions and may change the same from time to time. K.S.A. 1994 Supp. 75-5251.
Finally, the warden of each correctional institution may issue orders, subject to the provisions of law and the rules and regulations adopted by the Secretaiy, as the warden may deem necessary for the government of the correctional institution and the enforcement of discipline therein. K.S.A. 1994 Supp. 75-5256(a). All such rules and regulations and the enforcement of discipline within the correctional institution shall be published and made available to all inmates. These orders, rules, and regulations are effective until rescinded or amended by the warden or until disapproved by the Secretary. K.S.A. 1994 Supp. 75-5256(b).
Given the size and complexity of the Department of Corrections, this delegation of authority by tire legislature, with these standards, is sufficient to overcome a constitutional challenge based on the separation of powers doctrine. In the above statutory scheme, authority has been delegated to the Secretary, who has the duty and responsibility to oversee the orders, rules, and regulations promulgated and published by the administrators of each correctional facility. The rules and regulations are to be promulgated for the government of the institution and the discipline of the inmates. Inmates are to be treated humanely. The Secretary can disapprove any of the orders, rules, and regulations promulgated by the administrators.
Defendant cites People v. Lepik, 629 P.2d 1080 (Colo. 1981), in support of his position. Lepik, a security guard at the prison, was accused of bringing a pair of pliers into the prison in violation of the statute forbidding the introduction of contraband into a detention facility. “Contraband” was defined as “any article or thing not referred to in [the first-degree introduction statute] which a person confined in a detention facility is prohibited from obtaining or possessing by statute or a rule, regulation, or order lawfully issued by the administrative head of the detention facility.” 629 P.2d at 1081 n.1.
Lepik challenged the statute as an unlawful delegation of legislative authority because it lacked adequate legislative standards to guide the administrative discretion. Both the trial court and the appellate court agreed and found the statute unconstitutional. In doing so, the Lepik court did not object to the delegation of the rule making, per se, but rather the court believed that the legislature did not provide adequate standards to guide such rule making. Although the State pointed to both the statutory language and to a legislative declaration of purposes for the reorganization of the state department of institutions as adequate standards, the Lepik court found neither of these applicable nor adequate. 629 P.2d at 1082-83.
Although the facts and the statute in Lepik are similar to those before the court here, that case is distinguishable. Here, the legislature has provided additional guidance not provided or noted in the Colorado case. In Kansas, both the Secretary of Corrections and the wardens of state correctional institutions have been given the authority to promulgate orders, rules, and regulations promoting good order and discipline in correctional institutions. K.S.A. 1994 Supp. 75-5210; K.S.A. 1994 Supp. 75-5251. These orders, rules, and regulations are made available to inmates and published pursuant to statutory procedures. K.S.A. 1994 Supp. 75-5210; K.S.A. 1994 Supp. 75-5256. These are the standards not available to the administrator in Lepik. See Annot., Conveying Contraband to Prisoner, 64 A.L.R.4th 902, 918-20.
The federal statute that defines the comparable federal crime, 18 U.S.C. § 1791 (1994), is very similar to the present Kansas statute and has withstood various constitutional challenges based upon the separation of powers doctrine. See, e.g., Carter v. United States, 333 F.2d 354 (10th Cir. 1964).
The legislature could have provided more in the way of standards in the statute than it did, but the failure to do so is not a fatal defect. We conclude K.S.A. 1994 Supp. 21-3826 is not a constitutionally impermissible delegation of legislative authority.
Defendant seeks to assert an additional ground on appeal for holding the statute to be in violation of the separation of powers doctrine. The new argument is that by giving the administrator the power to consent rather than the Secretary of Corrections, the legislature has usurped the authority of the Secretary.
A legal theory not presented to the trial court may not be raised for the first time on appeal. Sharp v. State, 245 Kan. 749, 753, 783 P.2d 343 (1989), cert. denied 498 U.S. 822 (1990). However, in view of our summary of the pertinent sections of Chapter 75 relative to the respective duties of the Secretary and the wardens of the facilities and the former’s control over the latter, defendant has lost nothing by not having this new theory before us.
The judgment of the district court is reversed, and the matter is remanded for further proceedings. | [
-16,
100,
-3,
30,
42,
-31,
34,
-72,
75,
-93,
100,
115,
-19,
-37,
-123,
121,
-13,
125,
84,
105,
-28,
-73,
71,
-63,
-78,
-13,
-56,
-33,
-73,
94,
-17,
-2,
12,
-16,
-118,
-43,
70,
72,
-109,
28,
-114,
1,
-119,
-24,
83,
11,
32,
43,
114,
15,
113,
15,
-21,
40,
27,
-62,
-55,
41,
-37,
61,
-53,
-40,
-114,
-123,
91,
2,
-93,
-90,
-100,
-89,
-8,
61,
-104,
48,
0,
-24,
-13,
-90,
-122,
-108,
111,
-101,
40,
36,
98,
33,
93,
-17,
124,
-104,
14,
62,
-67,
-26,
-103,
24,
105,
4,
-106,
-99,
125,
6,
46,
118,
-25,
20,
21,
-4,
-118,
78,
-112,
-77,
15,
113,
-54,
-13,
-21,
35,
16,
96,
-116,
-26,
92,
115,
19,
-101,
-97,
-108
]
|
The opinion of the court was delivered by
Davis, J.:
This case involves the use of prior uncounseled misdemeanor convictions to establish a defendant’s criminal history under the Kansas Sentencing Guidelines Act (KSGA). The questions raised by this appeal are twofold: When and to what extent may such convictions be used and under what circumstances may a defendant collaterally attack (1) the convictions which enhance a sentence under the KSGA and (2) the underlying misdemeanor convictions which cause a conviction considered by the sentencing judge under the criminal history portion of the KS GA to be a felony instead of a misdemeanor.
The defendant, Joe Delacruz, pled guilty to a single count of sale of marijuana, a severity level 3 felony charge under the Kansas Sentencing Guidelines. The defendant’s criminal history worksheet included the following information on three misdemeanor battery convictions, all involving the defendant and his wife:
1. April 13, 1992, a municipal court uncounseled misdemeanor battery conviction based on the. defendant’s plea of guilty; fine imposed and no jail sentence.
2. March 29,1993, a municipal court uncounseled misdemeanor battery conviction based on the defendant’s plea of guilty; fine imposed and no jail sentence.
3. March 29,1993, a municipal court uncounseled misdemeanor battery conviction based on the defendant’s plea of guilty; fine of $121 and sentence of 90 days in jail with the requirement to serve 30 days.
In accord with K.S.A. 1994 Supp. 21-4711(a), which provides that three prior adult person misdemeanor convictions in the offender’s criminal history shall be rated as one adult person felony conviction for criminal history purposes, the defendant’s three prior misdemeanor convictions were converted to one adult conviction of a person felony. The defendant contends that his uncounseled misdemeanor battery convictions may not be used to enhance his sentence.
The defendant’s criminal history worksheet also contained one felony conviction of driving while suspended and three misdemeanor convictions of driving while suspended:
1. May 20,1986, Amarillo, Texas, municipal court, misdemeanor conviction of driving while suspended.
2. July 13, 1988, Seward County District Court, misdemeanor conviction of driving while suspended.
3. August 3, 1988, Liberal, municipal court, misdemeanor con viction of driving while license suspended.
4. September 14, 1989, Seward County District Court, felony conviction of driving while suspended. The defendant was represented by counsel.
K.S.A. 8-262 provides that the third charge of driving while sus pended may be charged as a felony, and this was done in this case. The defendant argued that enhancement of his sentence under the KSGA resulted, in part, because of an uncounseled misdemeanor conviction for driving while suspended. He further argues that all other misdemeanor convictions for driving while suspended, even though he was counseled or waived his right to counsel, resulted from guilty pleas that were not knowingly entered.
Based upon the defendant’s criminal history of one person felony (three misdemeanor battery convictions) and one nonperson felony (one felony driving while suspended), the defendant’s criminal history was classified C under the KSGA, and he was sentenced to 40 months’ imprisonment with a post-release supervision period of 24 months. Without the two prior felonies, the defendant would have been classified 3 H or 3 I under the sentencing guidelines with an optional nonprison sentence possible for his conviction of sale of marijuana involving less than 500 grams. See K.S.A. 1994 Supp. 21-4705(c).
USE OF UNCOUNSELED MISDEMEANORS UNDER THE KANSAS SENTENCING GUIDELINES
In Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 995 S. Ct. 1158 (1979), the United States Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated; a defendant charged with a misdemeanor does not necessarily have a constitutional right to counsel. Scott was based upon an earlier case recognizing that actual imprisonment was a penalty different in kind from fines or threats of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 530, 92 S. Ct. 2006 (1972). Thus, actual imprisonment has been the line defining the constitutional right to appointment of counsel in misdemeanor convictions. Scott, 440 U.S. at 373-74.
One year after deciding Scott, the United States Supreme Court considered the question of whether prior uncounseled misdemeanor theft convictions not involving imprisonment may be used to enhance a subsequent misdemeanor theft to a felony under an Illinois enhancement statute providing that a second conviction for such an offense may be treated as a felony punishable by imprisonment for one to three years. Baldasar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, reh. denied 447 U.S. 930 (1980).
Baldosar held that a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat offender statute. 446 U.S. at 228. The United States Supreme Court, in a five-to-four plurality decision, reasoned that the Illinois prison term imposed for the felony theft violated Scott because the defendant had been sen tenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense. 446 U.S. at 224.
This court faced a similar issue in State v. Priest, 239 Kan. 681, 722 P.2d 576 (1986). Priest had completed a driving while under the influence (DUI) diversion program. The record failed to show that she had been represented by counsel in this diversion agreement. Priest was then charged with a second DUI and, with the assistance of counsel, entered a plea of no contest to the second charge. The court sentenced the defendant as a first-time offender because there was no showing she had been represented by counsel in her first diversion agreement. We noted that a successfully completed DUI diversion agreement and program had the same effect as a conviction for DUI when a sentence is enhanced be cause of the second conviction for DUI.
Priest raised the question of whether a prior, uncounseled DUI misdemeanor conviction may be used to enhance the sentence for a subsequent DUI conviction. We held that in the absence of dem onstrating that the defendant was represented by counsel or waived counsel in the first case, the defendant must be sentenced as a first-time offender. In reaching this result, we cited State v. Oehm, 9 Kan. App. 2d 399, 680 P.2d 309 (1984), a Court of Appeals decision reaching the same result. We noted that the Court of Appeals in Oehm relied on the following United States Supreme Court cases in reaching its result: Argersinger v. Hamlin, 407 U.S. 25; Baldasar v. Illinois, 446 U.S. 222; Scott v. Illinois, 440 U.S. 367. Our decision in Priest and the Court of Appeals decision in Oehm are based upon Baldasar.
Recently, in Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct 1921 (1994), the United States Supreme Court revisited the Baldosar decision. In Nichols, the defendant objected to the inclusion of a DUI misdemeanor conviction in his criminal history score under federal guidelines because he was not represented by counsel. The inclusion of this conviction increased the defendant’s criminal history category from category II to category III, or from 168-210 months to 188-235 months. He maintained that consideration of that uncounseled misdemeanor would violate the Sixth Amendment as construed in Baldasar. 128 L. Ed. 2d at 750.
After a thorough discussion of the evolving case law, Nichols concluded that Scott v. Illinois, holding that the Sixth Amendment right to counsel in criminal misdemeanor proceedings is constitutionally mandated where the defendant is incarcerated, is constitutionally sound. However, the United States Supreme Court overruled Baldosar, holding that an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a subsequent offense even though the later sentence entails imprisonment. 511 U.S. at 748.
In this case, the defendant acknowledges the ruling in Nichols, but argues that Kansas is free to provide greater safeguards to its citizens than required by the United States Constitution. His primary argument is that this court should take steps to require that courts decrease the risk of unreliability stemming from uncounseled convictions.
In response to similar arguments and as its rationale for overruling Baldasar, Nichols states:
“We adhere to that holding today [in Scott v. Illinois], but agree with the dissent in Baldosar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common place in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, ‘[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E.g., Moore v. Missouri, 159 U.S. 673, 677[, 40 L. Ed. 301, 16 S. Ct. 179] (1895); Oyler v. Boles, 368 U.S. 448, 451[, 7 L. Ed. 2d 446, 82 S. Ct. 501] (1962).’ 446 U.S., at 232[, 64 L. Ed. 2d 169, 100 S. Ct. 1585].
“Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge ‘may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ United States v. Tucker, 404 U.S. 443, 446[, 30 L. Ed. 2d 592, 92 S. Ct. 589] (1972). ‘Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence of guilt in determining what sentence to impose on a convicted defendant.’ Wisconsin v. Mitchell, 508 U.S. 476, 485[, 124 L. Ed. 2d 436, 113 S. Ct. 2194] (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant’s prior convictions. “Sentencing courts have not only taken into consideration a defendant’s prior convictions, but have also considered a defendant’s past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U.S. 241[, 93 L. Ed 1337, 69 S. Ct. 1079] (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U.S. 79[, 91 L. Ed. 2d 67, 106 S. Ct. 2411] (1986). There we held that the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty.” 511 U.S. at 747-48.
The defendant argues that uncounseled misdemeanor offenses are unreliable when used to enhance a sentence resulting in imprisonment. He cites to his own pleas to charges of battery before a municipal court, not a court of record, and contends that often times in such cases, defendants do not appear before a judge. He raises the specter of the high volume municipal court concerned only with moving cases and not with advising the defendants appearing before such courts. His argument is that to insure reliability, counsel should be involved, and if it cannot be established that either counsel was present and assisted or counsel was waived, the resulting conviction may never be used in criminal history provisions under the Kansas Sentencing Guidelines or recidivist statutes.
We agree with the rationale expressed in Nichols. We conclude the use of an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant’s criminal history under the Kansas Sentencing Guidelines even though it has the effect of enhancing his or her sentence under the guidelines. See Nichols v. United States, 511 U.S. 738. Prior uncounseled misdemeanor convictions under Scott are constitutional where no jail time is imposed. If such convictions are constitutional, those convictions should and do remain constitutional in subsequent proceedings under the KSGA. Moreover, municipal judges in Kansas are trained and tested by the Kansas Supreme Court in its supervisory responsibilities over the Kansas Judicial Branch of government. The factory analogy hardly seems appropriate when referring to Kansas municipal courts. While the uncounseled misdemeanor is used to enhance the present sentence, the sentence imposed does not increase the penalty for that misdemeanor, and the defendant is being punished based on his current charge — a charge and proceeding where he is represented by counsel.
We agree with and adopt the rationale in Nichols. To the extent that our decision in Priest and the Court of Appeals’ decision in Oehm conflict with our decision in this case, they are overruled.
Applying our ruling to the facts of this case requires us to remand to the district court with directions. One of the defendant’s uncounseled misdemeanor battery convictions which was used in recording a person felony in the defendant’s criminal history resulted in a 90-day jail sentence, 30 days of which the defendant served. The record is silent whether the defendant was represented by counsel, and there is no showing that the defendant waived his right to counsel. If the State is unable to produce evidence under the provisions of K.S.A. 1994 Supp. 21-4715(c) that the defendant was either represented by counsel or waived counsel, this misdemeanor battery conviction resulting in jail time is unconstitutional under Scott and may not be used in the defendant’s criminal history under the KSGA. In this event, there would only be two prior adult person misdemeanor convictions. K.S.A. 1994 Supp. 21-4711(a) would, therefore, not apply, and the use of one person felony for criminal history purposes would not be valid. Accordingly, the district court, under those circumstances, would be required to vacate the defendant’s sentence and impose a new sentence consistent with this opinion.
CIRCUMSTANCES JUSTIFYING COLLATERAL ATTACK
Nothing in our decision requires that the defendant’s one nonperson felony for criminal history purposes be changed. The defendant had three misdemeanor driving while suspended convictions, two of which were either counseled or counsel was waived. Thus, even if we were to address the defendant’s argument concerning his uncounseled misdemeanor conviction for driving while suspended, the existence of two other valid convictions resulting in die enhanced felony charge would be valid. See K.S.A. 8-262.
Yet, we must observe that even if all the defendant’s misdemeanor convictions for driving while suspended were constitutionally invalid, the defendant’s felony conviction for driving while suspended is valid and may be used under the KSGA as a nonper son felony for criminal history purposes. Permitting the defendant to attack the convictions giving rise to the resulting felony conviction of driving while suspended amounts to a collateral attack within a collateral attack. The time for attacking the validity of misdemeanor driving while suspended convictions was on appeal or, at least, when the convictions were used to enhance the felony driving while suspended violation. Absent evidence that the felony driving while suspended conviction was constitutionally invalid, it may be used to enhance the defendant’s sentence.
One other contention of the defendant needs to be addressed. In dealing with his previous misdemeanor convictions for driving while suspended, the defendant contended before the trial court that although at least two were counseled or he waived counsel, his pleas in all cases were improvidently entered because they were not voluntary. Although we have disposed of this contention by concluding that a collateral attack within a collateral attack will not be permitted, the defendant raises the question as to when and under what circumstances a defendant will be permitted to collaterally attack a conviction being used for enhancement purposes in subsequent proceedings. As we have said above, if the defendant’s conviction was uncounseled and the defendant was sentenced to jail time, the conviction may not be used-in any subsequent proceeding.
The United States Supreme Court in Custis v. United States, 511 U.S. 485, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1994), dealt with collateral attacks upon prior convictions. In Custis, a defendant’s federal sentence was enhanced based on three prior state felony convictions. Instead of the usual penalty of 10 years for possession of a firearm by a felon, based on three previous felony convictions, the defendant was sentenced to a mandatory minimum sentence of 15 years and a maximum of life in prison without parole. The defendant argued that in two of his previous state felony convictions, he had received ineffective assistance of counsel and that the convictions in those cases could not be used for sentence enhancement.
Custis argued that the Constitution required that he be allowed to collaterally attack the two prior felonies. He relied on Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), and United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), both of which decisions relied upon the Court’s earlier decision of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). Gideon held that the Sixth Amendment required that an indigent defendant in state court proceedings have counsel appointed for him. See 372 U.S. at 343-45.
In addressing the defendant’s concerns, the Court traced the history of the Sixth Amendment right to counsel decisions, concluding that the admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon is inherently prejudicial and to permit use of such a tainted prior conviction for sentence enhancement would undermine the principle of Gideon. 128 L. Ed 2d at 527. However, Custis asked that the Court extend the right to collaterally attack prior convictions used for sentence enhancement beyond the right to have appointed counsel, as established in Gideon. In response, the Court said:
“We decline to do so. We think that since the decision in Johnson v. Zerbst more than half a century ago, and running through our decisions in Burgett and Tucker, there has been a theme that failure to appoint counsel for an indigent defendant was a unique constitutional defect. Custis attacks his previous convictions claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a ‘stipulated facts’ trial. None of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all. Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 ALR 357 (1938).” 128 L. Ed. 2d at 528.
Custis points to two other reasons that the collateral attack on previous convictions is limited to those cases involving a denial of counsel as outlined in Gideon. First, there is an interest in promoting ease of administration. The determination of claims of in effective assistance of counsel and failure to assure that a guilty plea was voluntary would require sentencing courts, when considering previous convictions under federal sentencing guidelines, to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era. Second, there is an interest in promoting the finality of judgments:
“By challenging the previous conviction, the defendant is asking a district court ‘to deprive [the state court judgment} of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgment].’ [Parke v. Raley, 506 U.S. 20,] 30, 121 L. Ed. 2d 391, 113 S. Ct. 517. These principles bear extra weight in cases in which the prior convictions, such as one challenged by Custis, are based on guilty pleas, because when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attack has special force.’ United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979).” 128 L. Ed. 2d at 529.
We agree with and adopt the rationale in Custis. The defendant argues, in this case, that all of his prior misdemeanor convictions should not be used because of inadequate plea colloquies. He contends that he was not informed of his rights regarding his guilty pleas and his pleas were not knowingly and intelligently made. Under Custis, the defendant’s prior misdemeanor convictions, with the single exception of the battery misdemeanor conviction result ing in jail time, would not be subject to collateral attack. As the United States Supreme Court indicated in Custis, allowing a collateral attack on prior convictions on the basis of inadequate plea colloquies would force the sentencing court to look behind every conviction with practically no record to rely on. On the other hand, the defendant’s conviction which resulted in jail time was apparently uncounseled and constitutionally invalid under both Scott and Gideon. Thus, the record raises a Gideon constitutional denial of counsel issue and is, therefore, subject to collateral attack. As stated earlier in this opinion, we remand to the district court for a hearing on the question of whether such a conviction may be used in establishing the defendant’s criminal history under the KSGA.
HEARING ON CRIMINAL HISTORY
Finally, the defendant contends that he was given no opportunity to present evidence that would have shown that his prior misdemeanor battery convictions were uncounseled or that all of his misdemeanor convictions were the result of inadequate plea colloquies. He argues that he was entitled to a hearing concerning his criminal history.
K.S.A. 1994 Supp. 21-4715(c) provides that when a defendant objects to any part of the criminal history, the State has the burden' to come forth with further evidence to establish the disputed portion of the criminal history by a preponderance of the evidence. The fact that the statute uses this preponderance of the evidence standard indicates that the defendant should also be given the opportunity to present evidence regarding criminal history.
In this case, the defendant proffered testimony that he had not waived counsel or been advised of the effects of his guilty plea, as well as records provided by the State which did not indicate that he had received counsel in a previous misdemeanor conviction resulting in jail time. This proffer appears to have been disregarded. The court said:
“The Defendant has presented no evidence that the Municipal Court Judge has not followed the law, and this Court must presume that all proceedings therein were proper and that the laws of Kansas were followed absence [sic]] some cred itable [sic] evidence to the contrary.”
It is not clear whether the district court did not consider the proffered evidence or whether it found the proffered evidence not to be credible. However, under K.S.A. 1994 Supp. 21-4715(c), the State must establish the convictions by a preponderance of the evidence, and the court cannot simply presume that all of the ac tions of the municipal court followed the law. In this case one of the defendant’s convictions for misdemeanor battery resulted in jail time. Before this conviction may be included in the defendant’s criminal history, either the record must demonstrate that the de fendant was represented by counsel or that the defendant waived counsel, or the State must establish by a preponderance of evi dence that the defendant was represented by counsel or waived counsel.
The defendant’s conviction is affirmed. The record in this case is silent on the issue of whether the defendant was represented by counsel in the misdemeanor battery conviction resulting in jail time. The case is remanded to the district court for a hearing on the issue of whether the defendant was afforded counsel in his previous misdemeanor battery conviction resulting in jail time or waived the right to counsel on this conviction. If the State is unable to establish by a preponderance of the evidence that the defendant was represented or that he waived counsel, the battery conviction may not be included in the defendant’s criminal history. Under these circumstances, the district court must vacate the defendant’s sentence and resentence the defendant without consideration of the one person felony previously used in classifying the defendant under the KSGA.
Conviction affirmed and case remanded with directions. | [
-80,
-22,
-3,
-100,
43,
96,
42,
28,
82,
-9,
-10,
83,
43,
-22,
5,
121,
-71,
109,
69,
105,
-63,
-73,
103,
-61,
38,
-13,
-117,
-57,
-73,
79,
-20,
-44,
12,
112,
-62,
117,
38,
74,
-75,
82,
-114,
0,
-104,
80,
82,
11,
54,
42,
47,
14,
49,
30,
-13,
40,
28,
-53,
105,
8,
75,
-72,
-63,
-87,
-17,
-41,
124,
16,
-77,
-122,
-97,
-121,
-8,
55,
-40,
-71,
0,
-20,
115,
-122,
-126,
116,
109,
-101,
-124,
98,
98,
33,
117,
-59,
-3,
-23,
15,
55,
-99,
-121,
-40,
88,
65,
4,
-106,
-68,
110,
54,
44,
-4,
103,
29,
31,
109,
-125,
-33,
-80,
-111,
77,
113,
-62,
-14,
-33,
36,
-128,
33,
-59,
-30,
84,
-9,
112,
-105,
-50,
-76
]
|
The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the Kansas Insurance Department (KID). The trial court held that K.A.R. 40-3-50, a regulation promulgated by KID, exceeded the statutory authority of K.S.A. 40-1117, which KID relied on in promulgating the regulation. The trial court also found the regulation constituted a public taking without just compensation, thereby violating the 5th and 14th Amendments of the United States Constitution.
The regulation in question was adopted by KID at the request of the Kansas Association of Insurance Agents. The regulation has the practical effect of shifting part of the cost of insurance agents doing business from the insurance agents to all workers compensation insurance purchasers in this state.
The appellee, the National Council on Compensation Insurance (NCCI), is a free-standing, not-for-profit corporation which is totally owned by 700 member insurance carriers. NCCI is in the business of developing workers compensation premium rates which are used throughout the United States by insurance companies marketing workers compensation insurance.
NCCI develops premium rates for approximately 225 insurers in Kansas who write workers compensation insurance. It is the only licensed rating organization in Kansas which develops workers compensation insurance rates. NCCI develops these rates by gathering figures from the employer-insured and setting exposure factors. At the time of this lawsuit, NCCI provided two sets of worksheets to member insurance carriers upon request at no charge and instructed the carrier to furnish one copy to the insured. Cur rently, NCCI sends a worksheet directly to the insured on an annual basis at no charge.
Insureds and independent insurance agents utilize the worksheets for various reasons. When an insured attempts to buy workers compensation insurance, its agent submits a worksheet to an insurance carrier. The carrier uses the worksheet to determine if it will offer a workers compensation quote to the employer. Moreover, insureds and agents utilize the worksheets to determine that NCCI and the insurance carrier calculated an accurate premium.
K.S.A. 40-1117 requires rating organizations such as NCCI to provide insureds and their agents direct access to the worksheets upon request. K.S.A. 40-1117 states in pertinent part:
“Every rating organization and every insurer which makes its own rates shall, within a reasonable time after receiving written request therefor, furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information as to such rate. Every rating organization and every insurer which makes its own rates shall provide within this state reasonable means whereby any person aggrieved by the application of its rating system may be heard, in person or by authorized representative, on written request to review the manner in which such rating system has been applied in connection with die insurance afforded such person.”
In complying with the statute, NCCI incurs a regular and repeated cost every time it retrieves, copies, and mails a worksheet. The persons requesting the worksheets, thereby incurring the distribution cost, are either insurance agents who need the worksheet information to attract new clients or insureds and their agents who need to replace misplaced worksheets. Through an assessment, the insurance carriers compensate NCCI for the initial worksheets. However, the insurance carriers do not compensate NCCI to retrieve, copy, and mail out a worksheet every time an insured or agent requests one. Thus, to recover its distribution costs, NCCI has charged a distribution fee to requesting insureds or agents for at least 30 years. Initially, NCCI charged a fee of $5 to provide a copy of any type of worksheet to either an insured or its agent upon request. In February 1992, NCCI raised this fee to $7.50 per worksheet for insureds, $25 per worksheet for commercial insurance agents requesting a single state risk worksheet, and $50 per work sheet for a commercial insurance agent requesting an interstate risk worksheet.
KID states that it was not aware NCCI was charging a distribution fee until 1992. In response to the increased fee, and at the request of the independent insurance agents, KID proposed K.A.R. 40-3-50, which states:
“No rating organization or insurer shall impose any conditions or fees upon any insured or any authorized representative of such insured for information requested pursuant to K.S.A. 40-1117 that is specifically relevant to any experience modification factor which is used or may be used to determine an individual insured’s workers compensation premium.”
KID promulgated the regulation with the intent that NCCI should recover the worksheet distribution costs in the same manner the worksheet preparation costs are recovered — charge the insurance carriers for the cost and let them recover the cost from all insureds through premiums. KID based its statutory authority to promulgate K.A.R. 40-3-50 on K.S.A. 40-1117. The trial court found that K.A.R. 40-3-50 exceeded KID’s statutory authority under K.S.A. 40-1117 and that the regulation was unconstitutional under the 5th and 14th amendments of the United States Constitution as a taking without just compensation. After the district court found the regulation was invalid, KID approved a proposal offered by NCCI in which NCCI agreed to send a worksheet directly to the insured-employer on an annual basis at no charge.
The standard of judicial review of an administrative agency action is defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Specifically, the KJRA’s scope of review is stated in K.S.A. 77-621(c):
“(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or 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;
(4) The agency has erroneously interpreted or applied the law.”
The court may review an administrative agency action (e.g., promulgation of a regulation) as any other civil case would be reviewed. K.S.A. 77-623.
The determination of whether K.A.R. 40-3-50 violates the Constitution or exceeds the statutory authorization of K.S.A. 40-1117 requires statutory construction. Statutory construction is a question of law; thus, this court has unlimited appellate review of these issues. The Supreme Court is not obligated to give the district court decision any deference. See Dillon Stores v. Lovelady, 253 Kan. 274, 275, 855 P.2d 487 (1993).
However, this court should extend some deference to the agency’s interpretation of the statute. A specialized agency interpreting a statute which it has the duty to implement should be granted deference if the agency’s statutory interpretation is supported by a rational basis. See State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 281, 894 P.2d 777 (1995).
Yet, an agency’s interpretation is not binding. If an agency is mistaken as to a question of law, the court has an obligation to cure the agency’s action. State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. at 281; Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 379, 892 P.2d 507 (1995). The burden of proving an agency action is invalid is on the party challenging the action. K.S.A. 77-621(a)(1).
According to KID, the statute authorizing the passage of K.A.R. 40-3-50 is K.S.A. 40-1117, which states in pertinent part:
“Every rating organization and every insurer which makes its own rates shall, within a reasonable time after receiving written request therefor, furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information as to such rate.”
NCCI contends that K.A.R. 40-3-50 exceeds the statutory scope of this enabling statute. NCCI does not challenge the constitutionality of K.S.A. 40-1117. It understands the purpose of K.S.A. 40-1117 is to insure that insureds and agents have access to the worksheets in order to check their accuracy. Yet NCCI contends that K.A.R. 40-3-50 has nothing to do with providing access to the worksheets. Rather, NCCI argues that the goal of K.A.R. 40-3-50 is to shift the agents’ cost of doing business from the agents to all employers who purchase workers compensation insurance, thereby assisting the agents in writing more accounts and earning more money. Moreover, NCCI contends that K.S.A. 40-1117 implies NCCI may collect a reasonable fee for the distribution services it provides. Thus, a regulation which does not allow NCCI to collect “any condition or fee” for the distribution services it provides is beyond the scope of the statute.
NCCI points to the canon of statutory construction which states that statutes should not be interpreted in a manner which creates uncertainty, injustice, confusion, or unreasonable results if at all possible. See Tobin Constr. Co. v. Kemp, 239 Kan. 430, 436, 721 P.2d 278 (1986). NCCI compares this canon and the interpretation of K.S.A. 40-1117 to the statutory construction argument which KID used in Todd v. Kelly, 251 Kan. 512, 515-516, 837 P.2d 381 (1992). According to NCCI, KID was able to use this canon in Todd to defeat fairly clear statutory language. 251 Kan. at 515-16. NCCI contends that the canon is even more relevant in this case than it was in Todd.
In Todd, the statutory language, when read in isolation, clearly required a supersedeas bond in the full amount of the judgment. In rejecting that position, this court said:
“Before turning to the specific statutes which are the subject of the certified question, we pause to iterate certain basic rules of statutory construction:
‘Interpretation of statutes is a question of law. The function of the court is to interpret die statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
‘As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).’ City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985).
‘A construction of a statute should be avoided which would render the application of a statute impracticable or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.’ In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 8, 643 P.2d 168 (1982). See 73 Am. Jur. 2d, Statutes § 251.
‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
‘[T]he court must give effect to the legislature’s intent even though words, phrases or clauses at some place in the statute must be omitted or inserted.” Ross, 245 Kan. at 594.
‘In order to ascertain the legislative intent, 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. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975). (Emphasis added.)
“We now turn to die issue raised by the certified question. We agree with the trial judge that K.S.A. 40-3422, when read in isolation, is clear and unambiguous and appears to require a supersedeas bond in die full amount of the judgment. However, as the foregoing rules and authorities clearly demonstrate, such a simplistic and narrow reading of the statute is not available to us. K.S.A. 40-3422 may not be read in isolation but may only be considered in connection with the other provisions of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. (the Act).
“K.S.A. 40-3422 is one small part of the Act first enacted by the legislature in 1976. The Act has been amended and supplemented at nearly every session of the legislature since 1976 and is a comprehensive attempt by the legislature to address problems faced by Kansas health care providers and the public in the areas of medical malpractice insurance. Commissioner Todd, in his brief before this court, accurately summarizes the history and rationale for the adoption of the Act.
‘The Act arose out of circumstances beginning in the early 1970s, during which insurers, who had previously underwritten medical malpractice insurance policies, abandoned the market in response to increasing claims and decreasing profits. As a result, health care providers found it increasingly difficult to obtain malpractice insurance. Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 335, 757 P.2d 251 (1988). With the adoption of the Health Care Provider Insurance Availability Act, all Kansas doctors were guaranteed the availability of malpractice insurance. Unfortunately, the crisis of medical malpractice insurance affordability continued, and intensified. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. at 337. See also Bair v. Peck, 248 Kan. 824, 828, 811 P.2d 1176 (1991). This affordability crisis was aggravated by the financial woes-of the Health Care Stabilization Fund, which necessitated a substantial increase in the Fund surcharge which is assessed against Kansas health care providers. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. at 336.
‘In response, the Kansas Legislature adopted a number of amendments to the Act during the 1984, 1985, and 1986 legislative sessions. Among these reforms were amendments to K.S.A. 1990 Supp. 40-3404, which were designed to place the Fund on an actuarially sound basis. Steps were also taken to reduce the Fund’s ‘limits’ of liability, in an attempt to make coverage more affordable. Originally the Act had provided for unlimited liability by the Fund. This unlimited exposure made coverage too expensive, and also made it difficult to determine the appropriate Fund surcharge, based upon proper actuarial principles. Therefore, effective July 1, 1984, the legislature limited Fund liability to $3,000,000; in doing so, it was the clear intent of the legislature that Kansas physicians be assessed a Fund surcharge based upon a maximum exposure of $3,000,000.’
“In construing various sections of the Act, we have held that the entire act must be considered and that no one section should be read in isolation from the others, as the trial judge did in this case. For example, in Bell v. Simon, 246 Kan. 473, 790 P.2d 925 (1990), the Insurance Commissioner was contending, inter alia, there was no coverage by the Fund for Dr. Bazzano, a Missouri resident licensed to practice in Kansas, because of his failure to pay the required surcharge. The Commissioner sought a literal construction and application of K.S.A. 40-3403(c), arguing that the Fund had no liability if there was any violation of the Act. The court found that a rigid construction of the statute would be unreasonable and contrary to the overall objectives and purposes of the entire Act. In doing so, the court stated:
‘K.S.A. 40-3403(c) must be read in harmony with the entire Act. While the legislature imposed more duties on the nonresident provider, nothing indicates the legislature envisioned less protection in the form of coverage or Fund liability when basic coverage continued by operation of law. While it may be true that Dr. Bazzano owes the Fund a surcharge for the period from April 1, 1986, through July 1987, the basic coverage continued by operation of law during this period, and we hold the excess liability coverage of the Fund also continued. To hold otherwise, by a narrow isolated construction of K.S.A. 40-3403(c), would negate the public policy behind the Act as to patients of nonresident providers even though there had been substantial compliance with the act.’ 246 Kan. at 484.
“When the two statutes now under consideration are read together, the conflict recognized by the Tenth Circuit Court of Appeals is obvious. K.S.A. 1991 Supp. 40-3403(e) clearly states, ‘In no event shall the fund be hable to pay in excess of $3,000,000 pursuant to any one judgment or settlement against any one health care provider.’ K.S.A. 40-3422, on the other hand, states, ‘[T]he proceedings shall be stayed on appeal by the fifing of a supersedeas bond in the full amount of the judgment.’ Obviously the two statutes cannot both be literally applied when, as here, the judgment exceeds the statutory liability of the Fund. Therefore, we must determine, as best we can, the legislative intent of the two statutes when read in context with the entire Act.” 251 Kan. at 515-18.
NCCI also cites to the canon which states that statutes which disrupt a person’s right over his or her own property should be strictly construed. See Babb v. Rose, 156 Kan. 587, 589, 134 P.2d 655 (1943).
The district court agreed with NCCI’s above-stated arguments and found the following:
“While K.S.A. 40-1117 does require that insurance rating information be furnished by rating organizations to insureds and their agents within a reasonable time, the statute cannot reasonably be read to require that such information be supplied at no cost whatsoever to the parties requesting it. To require, as K.A.R. 40-3-50 does, that a rating organization must bear all the costs associated with producing, locating and delivering copies of their rating information to any insured or agent who makes a request clearly places an unjust burden on the rating organization. Therefore, under this interpretation of K.S.A. 40-1117, it must be found that K.A.R. 40-3-50 in its present form does exceed the scope of statutory authority and is invalid.”
KID contends that the district court misunderstood its argument. KID states that K.A.R. 40-3-50 does not require a rating organization to “bear all the costs associated with producing, locating and delivering copies of their rating information.” Rather, K.A.R. 40-3-50 simply requires NCCI to collect the distribution costs from someone other than the insureds and agents, such as the insurance carriers. The insurance carriers may then recover these costs through premiums if they so choose. KID reasons it has made an agency determination that free distribution of the worksheets should be a part of the basic services which an insured is entitled to upon paying a premium. KID contends that this is an appropriate and valid agency determination. According to KID, the district court decided that the agency should not regulate the distribution costs through the premium rates, but rather should regulate the costs directly by prescribing the amount NCCI may charge as a distribution fee. Thus, the district court found the regulation was invalid. KID asserts that the district court incorrectly substituted its own judgment for that of the agency. NCCI argues that the court did not interfere with KID’s regulatory power. Rather, the court struck down a regulation which exceeded the agency’s statutory authority, and the court simply made a sugges tion in dicta of a regulation which would withstand constitutional muster. •
We do not believe the trial judge misunderstood KID’s argument. The trial judge clearly thought KID’s argument was a smokescreen shrouding the fact that the regulation would cause the premiums of all workers compensation insureds to increase in order to cover the cost of agents attempting to attract new accounts. We recognize the regulation would benefit some insureds in that the regulation would allow more agents to examine the insured’s worksheets and possibly obtain cheaper workers compensation insurance for the insured. However, the dispositive issue is the legislature’s intent in adopting K.S.A. 40-1117.
Our reading of K.S A. 40-1117 convinces a majority of this court that in adopting the statute the legislature intended that any insured or authorized agent receive all pertinent information as to the insured’s rates and be afforded a reasonable opportunity to correct any errors in the worksheets affecting the insured’s rates. We find no legislative intent that the rating organization be required to furnish the information to an unlimited number of agents wishing to solicit an insured’s business and to pass that cost on to all persons purchasing workers compensation insurance in this state through increased workers compensation premiums.
Having decided the trial court correctly held that K.A.R. 40-3-50 exceeds the scope of K.S.A. 40-1117, the remaining issues are moot.
Allegrucci, J., not participating.
Robert H. Miller, C.J. Retired, assigned. | [
-48,
-6,
-11,
-68,
28,
-31,
122,
18,
73,
-31,
-89,
83,
-51,
-26,
-107,
107,
-45,
45,
80,
98,
-10,
-77,
83,
-53,
-34,
-13,
-15,
-52,
-69,
91,
-2,
-98,
77,
48,
-118,
-43,
38,
-54,
69,
16,
-54,
12,
-118,
-35,
89,
65,
-68,
106,
114,
83,
17,
-113,
49,
56,
26,
-53,
40,
44,
91,
-87,
-55,
-15,
-53,
-105,
116,
17,
19,
4,
-100,
103,
-48,
2,
-104,
-80,
40,
-20,
82,
-90,
86,
37,
63,
-119,
1,
102,
99,
53,
-111,
-28,
124,
-104,
55,
-42,
13,
-122,
-106,
88,
114,
14,
-105,
29,
102,
4,
15,
124,
-5,
20,
31,
125,
1,
-121,
-96,
-77,
-17,
103,
-104,
-85,
-17,
-121,
-109,
101,
-61,
-96,
95,
-57,
51,
55,
31,
-116
]
|
Per Curiam:
This is an uncontested attorney discipline proceeding involving respondent Philip D. Gordon, an attorney licensed to practice law in Kansas. Three separate complaints involving seven separate incidents were filed by the Disciplinary Administrator claiming that respondent had violated MRPC 1.1 (1994 Kan. Ct. R. Annot. 292) (competency), 1.2 (1994 Kan. Ct. R. Annot. 295) (failing to abide by client’s decisions), 1.3 (1994 Kan. Ct. R. Annot. 297) (diligence), 1.4 (1994 Kan. Ct. R. Annot. 302) (failing to reasonably inform client), 1.15 (1994 Kan. Ct. R. Annot. 332) (failing to safekeep property), 3.2 (1994 Kan. Ct. R. Annot. 347) (failing to expedite litigation), 3.4 (1994 Kan. Ct. R. Annot. 352) (fairness to opposing party and counsel), 4.1 (1994 Kan. Ct. R. Annot. 360) (untruthful in statements to others), 8.1 (1994 Kan. Ct. R. Annot. 376) (failing to disclose facts), and 8.4 (1994 Kan. Ct. R. Annot. 379) (misconduct that adversely reflects on fitness to practice law). Respondent answered the formal complaints and admitted a majority of the' facts alleged.
The complaints were consolidated and heard by the hearing panel on September 30, 1994, and November 9, 1994. The hearing panel made the findings and conclusions set out in this opinion.
B5733
Theresa and Gerald Skaggs retained respondent to represent them concerning a defect in the swimming pool of a home they purchased. Respondent submitted a demand letter to the realtor on October 17, 1991. A response, from the realtor denying the demand was sent to respondent on November 1,1991. Respondent did not keep the Skaggs advised, by telephone or in writing, of the status of their case. The Skaggs tried unsuccessfully on numerous occasions to contact respondent by telephone. In April 1993, Theresa Skaggs sent respondent a letter requesting information concerning fhe status of the case. In July 1993, after the Disciplinary Administrator notified respondent that this complaint had been filed against him, Mrs. Skaggs received a copy of the demand letter and the realtor’s response.
In his answer to the formal complaint, respondent admitted each allegation. At the hearing, he acknowledged responsibility for the amount the Skaggs spent to repair the pool ($1,500).
The hearing panel found that respondent violated MRPC 1.3 and 1.4.
B5737 — Count I
Joyce Meredith retained respondent to represent her in her divorce. Around May 22, 1992, counsel for Ms. Meredith’s husband received a letter from the respondent stating that his client was seeking an emergency divorce. Included with the letter was a petition for divorce and entry of appearance. On May 28,1992, counsel for the husband returned the signed entry of appearance, some discovery documents, and a letter to respondent expecting that the divorce would be filed by respondent. On June 5, 1992, counsel for the husband discovered the divorce had not been filed. Counsel then contacted respondent concerning the filing of the documents on June 15, 1992. Respondent informed counsel that he had filed the pleadings that day. The documents were in fact filed one week later on June 22, 1992.
On May 28,1992, counsel for the husband submitted to respondent a request for production of documents. On July 9,1992, counsel wrote to respondent requesting a response to the discovery. Respondent did not answer. On August 13,1992, counsel prepared a motion to compel a response but agreed not to file the motion after respondent promised to mail the material on August 14,1992. Respondent did not comply until August 18, 1992.
A final hearing on the divorce was held September 22, 1992. The parties entered into an agreement, and respondent was ordered by the judge to prepare a journal entry of settlement. When respondent failed to prepare the journal entry, counsel for the husband attempted to contact respondent on numerous occasions. The husband was inconvenienced by the delay because Ms. Meredith would not allow him to pick up the property awarded in the settlement and local police officers refused to help the husband obtain the property without a certified copy of the journal entry. On November 4, 1992, counsel for the husband sent a proposed journal entry to respondent pursuant to Supreme Court Rule 170 (1994 Kan. Ct. R. Annot. 174). Respondent did not answer or object to the proposed journal entry. The trial judge signed the journal entry submitted by the ex-husband’s counsel on November 18, 1992.
Ms. Meredith attempted to contact respondent on numerous occasions after the September 22 divorce hearing to request a copy of the divorce papers. Respondent did not return his client’s telephone calls. On April 12, 1993, Ms. Meredith sent a letter to respondent requesting a copy of the divorce papers no later than April 30, 1993. She received the papers requested after she filed a complaint with the Disciplinary Administrator in May 1993.
Respondent admitted most of the allegations. The hearing panel found that respondent’s conduct violated MRPC 1.3, 1.4, and 8.4(c).
B5737 — Count II
Shelley Bontrager retained respondent to represent her in a post-divorce motion by her ex-husband to reduce his child support obligation. Without contacting his client, the respondent agreed to child support in an amount of $75 per month. Counsel for the ex-husband mailed a journal entry to the respondent on July 17, 1992, and again on August 10, 1992. Respondent did not return the document to counsel. On August 18, 1992, the ex-husband’s counsel submitted the journal entry to the district judge because respondent had not signed the agreed order. The judge signed the order on August 21, 1992.
Ms. Bontrager was unaware of the terms of the August 21,1992, journal entry. When Ms. Bontrager discovered the order, she hired new counsel. Her new counsel sent letters to respondent on four occasions between February 2, 1993, and August 17, 1993, requesting Ms. Bontrager’s file and an explanation of why respondent had agreed to the support order without Ms. Bontrager’s approval. Respondent did not reply to the requests for information. Ms. Bontrager had to pay her new counsel $260.
Respondent admitted that he was retained by Ms. Bontrager, he told the ex-husband’s counsel to prepare a journal entry for him to review with his client, and he did not file an objection to the proposed journal entry. Respondent also admitted that he did not immediately send Ms. Bontrager’s file to her new counsel, but the file ultimately was turned over and respondent has tried to fully cooperate with new counsel.
The hearing panel found that respondent’s conduct violated MRPC 1.2, 1.3, and 1.4.
B5737 — Count III
On April 2, 1992, respondent filed a personal injury action on behalf of Nora Pauline Houting. On May 5, 1992, an answer was filed. Also on May 5, the defendant in the action served on respondent a request for a statement of monetary damages, request for production of documents, and written interrogatories. On September 9, 1992, after sending two letters to respondent asking when he would comply with the discovery requests, the defendant filed a motion to compel discovery. Respondent filed no response to the motion to compel. On November 12,1992, the district judge signed an order granting the defendant’s motion to compel discovery and ordering respondent to comply with the discovery requests within 10 days. Respondent did not comply with this order.
On January 6,1993, the defendant filed a motion to dismiss Ms. Houting’s action for failure to comply with the discovery order. The district judge dismissed the action on February 24, 1993. Seven months later a motion to set aside the order of dismissal was filed by James Swoyer, an attorney associated with respondent. Mr. Swoyer asserted in the motion that respondent had failed to keep the firm informed and had misrepresented to the firm the status of the client’s case. Mr. Swoyer ultimately settled Ms. Houting’s case.
During the investigation of the disciplinary complaint filed by Ms. Houting, respondent acknowledged receipt of the pleadings in the personal injury case and stated that he was working on other matters and that he “just let it slip by.” Respondent admitted Mr. Swoyer filed a motion to set aside the order of dismissal and settled the case.
The hearing panel found that respondent’s conduct violated MRPC 1.1, 1.3, 1.4, and 3.4(d).
B5772 — Count I
Ronald and Kay Griffitt retained respondent to collect a $20,000 personal loan they had made to Curtis Sturgeon. Respondent wrote a demand letter. When payment was not received, respondent promptly filed an action in May 1991. Shortly after he was served with tire civil suit, Mr. Sturgeon filed for Chapter 13 bankruptcy, listing the Griffitt loan as a debt. Respondent agreed to file pleadings and documents on behalf of the Griffitts in the Sturgeon bankruptcy proceedings. Respondent failed to file any pleading, proof of claim, or complaint against dischargeability of the debtor on behalf of the Griffitts or request or schedule a hearing in the bankruptcy. Respondent failed to return numerous telephone calls from the Griffitts. When the Griffitts did speak with respondent, he lied about the status of the bankruptcy case. Respondent agreed to send copies of the bankruptcy documents but failed to do so.
After 2 years had elapsed, the Griffitts wrote a letter to respondent, requesting a status report. When they received no response, they hired another attorney to represent them as creditors in the Sturgeon bankruptcy proceedings. The new attorney filed a proof of claim and objection to the amendment of the debtor’s plan. Because the statutory time period for objection had expired, the Griffitts’ claim and objection were dismissed for lack of jurisdiction.
At the time the formal complaint was filed, a legal negligence claim was pending against respondent and the errors and omissions carrier of the Swoyer law firm, respondent’s former employer.
In his answer, respondent admitted all the allegations except the assertion that he lied to the Griffitts. He stated that he intended to complete the work for his clients but was unable to do so because he received other work from his former employer.
The Swoyer firm’s carrier paid $4,000 to the Griffitts and the Griffitts wrote off $9,000 as a bad debt. The hearing panel found that the Griffitts lost $7,000 due to respondent’s mishandling of their legal affairs. The panel found that respondent’s conduct violated MRPC 1.1, 1.3, 1.4, and 4.1.
B5772—Count II (formal complaint)/B5775 (panel report)
Respondent was retained by Gary Haflich in September 1992 for advice on a debt of $20,000 in medical bills incurred due to a heart attack. By January 1993 Mr. Haflich had brought his mortgage payments current, and he gave respondent the necessary documents for the respondent to file a bankruptcy to discharge the medical debt. In February and March 1993 Mr. Haflich was sued by the hospital and ambulance company for debts resulting from the heart attack. Mr. Haflich gave the summons and petition in each case to respondent, who agreed to represent Haflich in the civil suits. Respondent failed to enter an appearance or file pleadings or motions in the civil suits. The hospital obtained a default judgment. One or two of Mr. Haflich’s paychecks wére garnished. After a garnishment, Mr. Haflich contacted respondent, who informed Mr. Haflich that he would attempt to have the garnished amounts repaid. Mr. Haflich’s Chapter 7 bankruptcy petition was filed on April 23, 1993. No more garnishments were issued. However, no refund of the earlier garnishments was obtained.
Respondent advised Mr. Haflich to keep his home mortgage and car payments current so that those debts could be reaffirmed. After Mr. Haflich made late mortgage payments, the mortgagor declined to accept tender of the payments and issued four checks totalling $1,208 back to Mr. Haflich in care of respondent between June 17 and September 13, 1993. Despite a demand from Mr. Haflich, respondent did not return the checks until September 23, 1993, after the complaint was filed with the Disciplinary Administrator’s office.
Respondent asserted that he did not file pleadings in the civil suits because the suits were listed in the bankruptcy petition and were to be dealt with in the bankruptcy. Respondent attempted to get the money garnished from one of Mr. Haflich’s paychecks returned to the client. Respondent stated that he had informed Mr. Haflich that the bankruptcy trustee might claim the money and that the bankruptcy court was informed Mr. Haflich’s wages had been garnished. Respondent explained that the checks from the mortgage company were not returned until September 23, 1993, because he moved out of his former employer’s office on June 16, 1993, and did not get fully moved into his new offices until September 1993. He stated that he tried to contact Mr. Haflich several times to explain the situation.
The hearing panel found that respondent’s conduct violated MRPC 1.3, 1.4, 1.15, and 3.2.
B5931
Respondent represented Delbert Lee McHenry and Shirley Yvonne McHenry in an adversary action filed in the McHenrys’ bankruptcy. The plaintiff in the action, Leavenworth County Coop (Co-op), served a summons and complaint on the McHenrys and respondent. The McHenrys filed an answer to the complaint on May 26, 1993. At a pretrial conference on June 30, 1993, the discovery deadline was set for August 16, 1993, and August 30, 1993, was set as the date for the parties to amend the pleadings. On July 6, 1993, the Co-op served interrogatories and a request for production of documents. Responses were due 30 days after service. On August 30, the Co-op filed an amended complaint which alleged that the McHenrys had failed to respond to discovery requests. A final conference was held on September 27,1993. Neither respondent nor the McHenrys appeared. The Co-op filed a motion to compel discovery and a motion for default judgment on September 23, 1993. The Clerk of the Bankruptcy Court set a November 2 deadline to respond to those motions, and a hearing was to be held November 12, 1993, if objections were filed.
On November 4, 1993, respondent filed a motion to file an answer to the amended complaint out of time, a response to the motion for default judgment, and a response to the motion to compel discovery on behalf of the McHeniys. Respondent indicated to the judge that he would submit the completed discovery by November 5,1993. Respondent failed to do so. On November 9,1993, the Co-op filed a reply to respondent’s responses. The Co-op again requested a default judgment or, alternatively, a discovery deadline and sanctions. The motions were heard on November 12, 1993. Respondent and the McHenrys failed to appear. The court granted the motion to compel discovery and took the motion for default judgment under advisement. On December 8,1993, the court declined to grant a default judgment or impose sanctions against the McHenrys for the delay and inaction of their attorney, noting that the McHenrys were not responsible for respondent’s failure to appear at the hearings. The court sanctioned respondent by granting judgment to the Co-op of $1,359.30, the amount of attorney fees Co-op incurred in trying to force respondent to participate in the adversary proceeding. Also in its December 8, 1993, order, the court noted that the McHenrys had been sanctioned $500 for failing to respond to several letters sent to respondent concerning a truck and seeking information about the McHenrys’ accounts at financial institutions.
Respondent admitted each allegation of the formal complaint. Respondent stated he had paid the monetary sanctions of $500 and $1,359.30. He also noted that the McHenrys had obtained other counsel in August 1994 and that he had turned over the file to new counsel, apologized orally and in writing to the McHenrys, and charged them no attorney fees for his services.
The hearing panel found that respondent paid the sanctions in August 1994. The panel noted that Jan Hamilton, the attorney who took over the McHenrys’ bankruptcy cases, testified that the lists of property on the bankruptcy schedules were inaccurate. Items listed in the schedules as owned by the McHenrys were subject to security interests of the Co-op, and respondent had advised the McHenrys against correcting the collateral inventory. Also, respondent had converted the McHenrys’ Chapter 13 filing to a Chapter 7 filing, exacerbating their problems by opening the door for the Co-op’s adversary proceeding. Mr. Hamilton concluded that an amended plan in a Chapter 13 proceeding would have been the preferred approach. The adversary proceeding was eventually settled by Mr. Hamilton by payment of $7,000 from the McHenrys to the Co-op. Because of respondent’s mishandling of their bankruptcy, the McHenrys incurred legal expenses of $2,027.73 to Mr. Hamilton. The panel noted that respondent had not turned over the McHenrys’ file until he was subpoenaed for an examination by Mr. Hamilton.
The hearing panel concluded that respondent’s conduct violated MRPC 1.1, 1.3, 1.4, 3.2, 3.4, 8.4(d), and 8.4(g).
Panel’s Recommendations
The hearing panel found by clear and convincing evidence that respondent’s conduct violated MRPC 1.1, 1.2, 1.3, 1.4, 1.15, 3.2, 3.4(d), 4.1, 8.4(c), 8.4(d), and 8.4(g).
The hearing panel noted in mitigation that respondent’s mother was diagnosed with breast cancer in 1987 and her condition substantially worsened in 1990; she declined steadily until her death in 1994. Respondent had shared caregiving responsibilities for his mother during this time. The panel also noted that respondent left his association with the Swoyer firm in June 1993 and opened his own office. He had no secretary for an- extended time, was disorganized, and had difficulty with calendaring. Prior to opening his own office, respondent had always been an associate and someone else had been responsible for the organization and structure of the office. Respondent also argued in mitigation his preoccupation with an unsuccessful run for the Jefferson County Attorney post in 1992, but the panel gave this factor very little weight. Finally, the panel noted that respondent had no prior record of disciplinary offenses and that his difficulties seemed to have increased as the level and degree of supervision over his work decreased.
The panel found a pattern of misconduct and multiple serious offenses and that even in connection with the disciplinary matters, respondent had not been timely, thorough, or thoughtful. The panel found that respondent’s proposed plan of probation, restitution, and office organization was insufficient to protect the public. The hearing panel recommended that respondent be sus pended indefinitely from the practice of law and that his reinstatement be contingent upon restitution in the amount of $1,500 to the Skaggs, $260 to Shelley Bontrager, $7,000 to the Griffitts, $371 to Gary Haflich, and $9,000 to the McHenrys.
We hold that the findings and conclusions of the hearing panel are supported by clear and convincing evidence.
It Is Therefore Ordered that Philip D. Gordon be and he is hereby disciplined for violations of MRPC 1.1, 1.2, 1.3, 1.4, 1.15, 3.2, 3.4(d), 4.1, 8.4(c), 8.4(d), and 8.4(g).
It Is Further Ordered that Philip D. Gordon be indefinitely suspended from the practice of law in the State of Kansas effective December 8, 1995.
It Is Further Ordered that Philip D. Gordon shall make restitution as recommended by the hearing panel, plus interest, prior to the filing of any petition for reinstatement pursuant to Supreme Court Rule 219 (1994 Kan. Ct. R. Annot. 223).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217) and shall pay the costs of this action.
It Is Further Ordered that this order be published in the official Kansas Reports. | [
-79,
-22,
-55,
-33,
-120,
-95,
58,
92,
57,
-15,
119,
83,
-17,
-49,
28,
97,
-46,
61,
-16,
107,
71,
-78,
127,
66,
102,
-13,
-16,
-47,
-77,
111,
-11,
-99,
72,
32,
-62,
-107,
6,
-126,
-43,
88,
-122,
3,
27,
-28,
-39,
-63,
48,
59,
0,
15,
53,
94,
-13,
46,
53,
99,
40,
44,
-1,
-83,
-48,
-111,
-103,
29,
106,
6,
-94,
-27,
30,
-121,
-40,
123,
-112,
56,
0,
-24,
115,
-74,
-126,
116,
79,
-103,
72,
98,
102,
33,
65,
-89,
-96,
-108,
15,
60,
-115,
-90,
-69,
88,
72,
11,
-90,
-100,
113,
18,
39,
-4,
-25,
93,
29,
-20,
15,
-50,
-44,
-109,
30,
-106,
-116,
-117,
-2,
103,
20,
85,
-113,
-26,
94,
-61,
50,
27,
-98,
-32
]
|
The opinion of the court was delivered by
McFarland, J.:
Pursuant to a plea agreement, Donice M. Johnson was convicted of first-degree murder (K.S.A. 1992 Supp. 21-3401) and aggravated kidnapping (K.S.A. 21-3421), for which she received two consecutive life sentences. Johnson appeals, contending that the State violated a term of the plea agreement. She seeks resentencing by a different district judge or, alternatively, withdrawal of her guilty pleas.
On April 25,1993, defendant, two of her brothers, and her boyfriend murdered 16-year-old Amanda Gardner in order to obtain the victim’s automobile. The murder was premeditated and particularly brutal. One of the brothers, Joe Johnson, III, pled guilty to first-degree murder, aggravated kidnapping, and theft. Defendant pled guilty, as previously stated, to first-degree murder and aggravated kidnapping. In exchange for her plea the State agreed: (1) to dismiss a theft charge; (2) not to ask the court for the “hard forty” or to proceed to trial on the “hard forty”; and (3) to take no position as to whether concurrent or consecutive sentences should be imposed.
Sentencing of defendant and her brother Joe were set at the same day and time, with Joe’s case being first called. In that case, the State gave a detailed account of the crimes, including the chok ing of Amanda with a purse strap and her subsequent regaining of consciousness which was followed by a beating. The victim again regained consciousness, and was then strangled to death. The victim’s sister, Renee Gardner, spoke eloquently and powerfully on behalf of the victim’s family, urging the court to impose consecutive sentences in both cases. In defendant’s case, the following transpired:
“MRS. HAMILTON [State’s attorney]: Your Honor, just as argument was made in the defendant Joe Johnson’s case, the factual basis as to criteria and so forth would be the same argument the State would have, so I’m not going to go through all of that. But, in relating it directly to Donice Johnson, I think there are some important things here to relate particularly as a result of defense counsel for Joe Johnson has made comments that Mr. Johnson wants to make sure that you consider his heavy involvement in this in order to then give his sister a reduced sentence, I think the important tiling is to note that I didn’t, as the State, say that I would concur or go along with concurrent sentences. That has never been the position, and if it is that we would go along with concurrent sentences, that would have been the deal entered, it wouldn’t have caused this much ruckus. If I were up here asking for concurrent, I am sure there would have been no objection made. The position was that the State would take no position, but present to the Court everything that the Court should have in front of [it] to make a decision, and then decide whether or not this defendant, Donice Johnson, was worthy of concurrent or consecutive. And that’s what the State still intends to do.
“You have heard the comments from the victim’s family. I think it’s pretty obvious, aside from the extent of harm caused by even this defendant’s conduct. What is important to remember was Donice Johnson’s participation in this. Kansas law is very strong to say if the person who shoots, if the person who did the actual killing did it, but with the assistance or knowledge and planning of someone else, that tlie aider and abettor is just as guilty as die principal person. And in this case, as strongly put by the victim’s family, it was Donice Johnson who had actually set up the victim. It was actually Joe Johnson who had decided, yeah, we need a car, let’s just pick a victim with a car, maybe we could just get a car. And tiien it was decided that Mandy was an easy target. And it was Donice Johnson’s knowledge of Mandy that knew that Mandy would go with her even on whatever the pretense was.
“What’s also important is with this stipulation of facts that was considered in the State’s case as to Donice Johnson’s own confession to New Jersey, that when she returned after she thought — and it was planned that Mandy would be dead when she returned — that though when she came back, she was shocked. The shock was because she said you did it that quick, not that you did it at all. She knew that the murder was planned and that she thought at that point Mandy was dead and that they had done it so quickly, so coldly and so calculated. But the fact is, too, that as I told you with the facts, this defendant had an opportunity somehow to say this has gotten out of line, this is out of it. If Joe Johnson who made the statement whether he was smoking marijuana and was out of it was there, Donice came back and there was no confession on her part that she was in the state of mind that she was influenced by drugs or alcohol. And she admitted that Amanda came to, that there could have been an opportunity at that point to even dump her still alive because they had the car, they had what they wanted. And Donice not only didn’t do anything about it to help Mandy, but she was there when the actual murder did go — did go down, it did take place. She remained, whatever her condition was, as far as what Joe and her boyfriend and Jeriy had done, she remained with them, and in fact when they put the car in the parking lot and talked to the little brother, played basketball and disposed of the body. And she went with them when they went to New Jersey. It was Donice, because she was the woman involved, who pawned the victim’s cellular phone and jewelry. I mean, the involvement was very entwined.
“Looking at that criteria, and using your discretion, we’re asking that the Court weigh it very carefully, but—
“MR. KESSLER [Defense counsel]: (Interrupting) Your Honor, I will have to object. I think this goes beyond the statement of fact; and by advocating a certain position to be taken on criteria listed in K.S.A. 21-4606, the district attorney is not complying with her agreement in this case.
“THE COURT: Do you wish to respond?
“MRS. HAMILTON: Your Honor, only that I am. I was just going to ask that you have to take those factors into consideration.
“THE COURT: Well, I think the State is getting perilously close. I don’t think one can say they are going to take no position, and argue for a fairly extended period of time on factors which might well militate against a no recommendation position. I am going to have to sustain the objection. It’s one thing for the State to tell concretely what the facts are. Of course, the Court has carefully considered all of this, and I really haven’t heard anything very much that’s new, although I think it is usually helpful to have both sides tell the Court-factual circumstances which are appropriate for consideration. But, I think the State is treading on thin ice at this point, so I would sustain the objection.”
“MRS. HAMILTON: Thank you, Your Honor. I will proceed only in regards to Donice Johnson’s — go into the statements as to the PSI.
“Your Honor, the Court again, because this is — even if it was under the sentencing guidelines, these are two, again, she has agreed to plead to both counts, and tlie State took those pleas to both counts of aggravated kidnapping and murder in the first degree, those — those counts being off the grid. In regards to criminal history, the PSI has indicated, and we would agree, that this defendant had no prior history. Her birth date is 1973, Your Honor, which would make her 20 years old, and the older of all of the people involved.
“For all of those foregoing reasons, Your Honor, the State would offer those facts for your consideration and leave it to your discretion with the consideration of the family as well. Thank you.”
Defense counsel then addressed the court.
In sentencing defendant to consecutive life sentences, the district court stated:
“This matter has now been submitted for decision to the Court. And, once again, the Court notes that under Kansas Statutes Annotated 21-4601, the Court must consider the individual characteristics, circumstances, needs, potentialities of the defendant and consider the dangerousness of the offender and the other factors which have been noted in that statute.
“The Court also, as noted earlier, must consider tire sentencing criteria under 21-4606. The Court then referring to those factors notes that there is no prior criminal activity or history on the part of the defendant, that is none as a juvenile or as an adult. The Court also notes with respect to the extent of die harm, that this was the greatest imaginable harm that could be visited on a victim and a victim’s family. The Court further notes that there must be a consideration of whether tire defendant intended that the criminal conduct would cause or threaten serious harm. Under the facts that the Court has noted — and I do want to say, once again, in this case that I have carefully considered the contents of the Court Services file, the court file, all of the hearings, all of the arguments of counsel, and, of course, the presentence investigation and report. So, with that in mind, it seems clear to the Court that the defendant knew that terrible consequences were about to ensue if this plan were carried out and therefore she must have been charged with the intent of the probable and natural consequences of the actions which were planned. The next factor which the Court would note under the statute is the degree of defendant’s provocation. There was absolutely no provocation at all. There was only friendship. There was no conduct whatsoever on the part of the victim which would in any way under any imagination constitute provocation. The next factor which the Court should consider is whether there are substantial grounds tending to excuse or justify defendant’s conduct. And, once again, there are no grounds at all that the Court can see which would tend to excuse or justify the conduct. The next factor is whether the victim induced or facilitated the commission of the crime. And, here again, there is nothing that the victim did to induce or facilitate the commission of the crime. The final factor is compensation, but compensation is really a very minor factor now in view of the great seriousness of the crime, itself, and the consequences of the crime.
“Now, also, there are several other factors which the Court would note in passing. We have a very youthful victim, age 16, a young teenage girl. There is almost a randomness to the homicide. It seems that she was by chance selected because she had a car. It appears that the selection of the victim placed her in a helpless situation where she was — there was no way that she could have obtained any type of assistance to get out of tills deadly situation that she found herself in. The defendant here was the oldest of the people involved and, therefore, presumably would have had some persuasiveness as far as the deadly enterprise in question. She was the victim’s friend, and that suggests that this friendship was misused in a very deadly way. It appears that the defendant was in on the crime from the start, she knew what was intended, and apparently was involved in extensive discussions concerning the plan and how it would be executed. It appears that she probably was the major access to the victim based upon the friendship and acquaintance she had. It appears that during the course of the crime, she did facilitate the plan, itself, and she did have a substantial participation in all stages of the plan, the planning phase, itself, the early stage, and actual carrying out of the homicide and the theft, and then leaving town, obtaining ammunition and then leaving town with the other persons involved. It seems in many respects, her participation in die homicide was essential, and one has to question whether it could have been carried out without her participation.
“For all of these reasons, I think that she’s quite culpable, notwithstanding her excellent record at this point in time.”
For her sole issue on appeal, defendant argues that the prosecutor’s objected-to comments were violative of the plea agreement as they were, in essence, advocating consecutive sentences. The district court found the State was “perilously close” to violating the agreement and sustained the objection. The State then closed quickly.
The State points out that being held to be “periously close” to a violation is not the equivalent of being held to have committed the violation. The State also noted that in the plea agreement the State did not agree to stand mute at the sentencing, a term included in some of its plea agreements.
Defendant relies heavily on Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), for support.
In Santobello, the prosecutor agreed to make no sentence recommendation. During a seven-month delay between the hearing at which the plea agreement was accepted and the sentencing, the cast changed, with the presiding judge having retired and a new prosecutor taking over the case. At the sentencing, the State recommended a maximum sentence. Defense counsel immediately objected that the plea agreement had been breached. The trial court overruled the objection and proceeded to sentence the defendant to the maximum sentence, stating that it did not rely upon the recommendation by the State. 404 U.S. at 258-60.
In Santobello, the United States Supreme Court recognized the necessity of judicial safeguards to protect the integrity of a plea agreement: “[A] constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262. Although the trial judge stated that the prosecutor’s recommendation did not influence him, the Court concluded that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises in the negotiation of pleas of guilty would thus be served by remanding the case to the state courts for further consideration. The Court then left the ultimate relief to be awarded petitioner to the discretion of the state court, allowing it to determine whether specific performance of the agreement should be imposed with resentencing before a different judge or whether the circumstances required allowing petitioner to withdraw his plea of guilty. 404 U.S. at 262-63. Following Santobello, the courts have placed a heavy burden upon the Government to follow meticulous standards in both promising and performing plea agreements. See, e.g., U.S. v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988).
In State v. Hill, 247 Kan. 377, 799 P.2d 997 (1990), defendant pled guilty, as part of a plea agreement, to three class A felonies and five class B felonies. In exchange for his plea, the State promised, inter alia, to recommend a controlling term of two consecutive life sentences.
At the sentencing hearing in Hill, the prosecutor stated:
“ ‘[T]hose [PSI] investigations were conducted in a thorough and competent, complete manner, of setting out the recommendations as entered into at the time of the plea bargain between the prosecution, the State.
“ ‘Further, Your Honor, I would like to state that the victim impact statement of that report made it very clear that the victims’ position[s] are that no amount of time in this case is going to be enough time for the damage and for the crimes that have been committed against the State of Kansas, against the family of [D.B.], against [D.B.], and against [V.F.]. But that the Court is in a position, having reviewed this material, having heard the statements of fact which support the pleas of guilty and the convictions in this case, to at this time render a proper and appropriate sentence.’ ” 247 Kan. at 378-79.
Defendant did not object to the statements. The trial court sentenced defendant to three consecutive life sentences. At a hearing on defendant’s motion to modify sentence, the prosecutor made no statement.
On appeal, defendant contended that the State failed to adhere to its promise to recommend a controlling term of two consecutive life sentences at both the sentencing and at the hearing on the motion to modify sentence. At sentencing, instead of specifically stating its recommendation, the State referred to the PSI report, which contained the State’s plea agreement recommendations.
We rejected this argument, reasoning:
“When defendant’s guilty plea was accepted, the judge was informed of the State’s recommendation of two consecutive life sentences with all other sentences running concurrently thereto. Although the State did not specifically state its recommendation on the record at the sentencing hearing, the prosecutor .did refer the court to the recommendation stated in the PSI. Comments at sentencing establish that the trial court relied upon the PSI throughout and was aware of the State’s recommendations. In fact, just prior to imposing sentence, the court acknowledged that it was aware of the State’s recommendation but chose instead to exercise its independent judgment by imposing three life sentences. Although the additional comments by the prosecutor were questionable in fight of the plea agreement, the prosecutor urged the court to review the materials in the PSI. These materials make clear that tire surviving victim and families of both victims accepted the recommended controlling sentence of two life terms to be served consecutively.
“At the hearing on the motion to modify sentence, the State did not actively restate the recommendation of two consecutive life sentences but, instead, made no statement and merely asked the court to rule upon the motion. In denying the motion, the court stated its knowledge that the plea negotiations resulted in a recommendation of two consecutive life sentences. The court followed its previous decision that three consecutive fife sentences should be imposed in this case and stated that no development since the prior sentencing would cause the court to alter that position.
“We conclude the State did not breach the plea agreement or violate the defendant’s due process rights. Crucial to our conclusion is the fact that the court was aware of the plea bargain and the State’s recommendation at the time of the plea, sentencing, and the hearing to modify sentence. Although the State should refrain from making comments inconsistent with the plea agreement, here, the additional comments by the prosecutor were not tantamount to making a recommendation contrary to the plea agreement.” 247 Kan. at 386.
Unlike Santobello, in both Hill and the case before us, the same judge presided throughout the proceedings and was familiar with the terms of the plea agreement.
Defendant does not contend that the State had negotiated away its right to speak at the sentencing hearing. In speaking to the court, the State had the right to and did state the extent of defendant’s participation in the crimes. A less than truthful soft pedalling or whitewashing of the extent of defendant’s participation in stating the facts to the court would have been inappropriate. On the other hand, editorializing on the facts could be considered as urging consecutive over concurrent sentences, the only issue before the court at sentencing as both offenses were class A felonies. •
In reviewing the prosecutor’s comments themselves and also in their proper context within the sentencing proceeding, we conclude the comments were not tantamount to making a recommendation contrary to the plea agreement. Having made this determination, it is unnecessary to determine what form of relief would be appropriate if relief were to be granted.
The judgment is affirmed. | [
80,
-22,
-35,
-68,
58,
96,
11,
120,
114,
-29,
100,
83,
-85,
-81,
1,
121,
59,
125,
85,
105,
80,
-89,
55,
-63,
-66,
-13,
-79,
-44,
-77,
74,
-68,
-1,
72,
114,
-118,
-43,
102,
-118,
113,
-42,
-120,
-111,
-87,
-28,
66,
2,
52,
123,
30,
14,
117,
14,
-77,
42,
22,
-58,
-55,
41,
91,
-67,
-64,
-103,
-117,
-105,
77,
20,
-125,
-91,
-102,
-121,
-8,
39,
-35,
57,
0,
104,
115,
-122,
-122,
116,
77,
-117,
12,
38,
102,
5,
-52,
78,
-67,
-112,
47,
54,
-67,
-89,
25,
80,
75,
12,
-106,
-3,
125,
52,
41,
124,
-10,
4,
76,
-20,
-127,
-49,
-76,
-95,
-115,
127,
66,
-6,
-21,
32,
34,
97,
-35,
98,
68,
119,
120,
-45,
79,
-4
]
|
The opinion of the court was delivered by
Davis, J.:
The defendant, Stanley E. Christiansen, was charged with the unlawful possession of wildlife. The juiy found the defendant guilty, and upon motion for arrest of judgment, the trial court set aside the defendant’s conviction based upon its conclusion that the complaint was jurisdictionally defective. The State appeals pursuant to K.S.A. 1994 Supp. 22-3602(b)(2). For the reasons set forth below, we conclude that the trial court erred. We, therefore, reverse and remand.
The defendant was charged with a violation of K.S.A. 32-1002(a)(2), which provides:
“(a) Unless and except as permitted by law or rules and regulations adopted by the secretary in accordance with K.S.A. 32-805 and amendments thereto, it is unlawful for any person to: . . . (2) possess, any wildlife, dead or alive, at any time or in any number, in this state.”
The complaint charging the defendant alleged:
“That on or about the 3rd day of October, 1992, the above named Defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfulltj and intentionally possess wildlife, to-wit: A FAWN DEER, in violation of K.S.A. 32-1002(a)(2), a class C misdemeanor.”
On a motion for arrest of judgment, the defendant convinced the trial court that the complaint was fatally defective because it failed to include the following negative averment from the statute: The possession was not permitted by law, or rules and regulations adopted by the Secretary of Wildlife and Parks in accordance with K.S.A. 32-805, or the equivalent language that the possession was without authorization. The State argued that the crime is unlawful possession and that the term “unlawfully” in the complaint sufficiently states an offense.
The defendant challenged the sufficiency of the complaint before the trial court by filing a motion for arrest of judgment. In State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990), we determined that this was the proper procedure for a defendant who wished to challenge the sufficiency of the information after trial on a claim that the information did not charge a crime or that the court was without jurisdiction of the crime charged. Because the defendant followed the correct procedure, this court’s review is conducted utilizing the rationale of the pre-Hall cases. See State v. Hall, 246 Kan. at 764.
All crimes in Kansas are statutory, and the elements necessary to constitute a crime must be gathered wholly from the statute. State v. Jackson, 239 Kan. 463, Syl. ¶ 4, 721 P.2d 232 (1986). An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and convictions for those offenses must be reversed. State v. Jackson, 239 Kan. 463, Syl. ¶ 5. A citation in the complaint to the statute involved cannot substitute to supply a missing element of the charge. 239 Kan. at 466. Neither can a proper instruction at trial remedy the defect in the complaint. State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979).
The defendant in this case argues that the complaint omitted the essential element that the defendant was not authorized to possess the deer. The State argues that lack of authorization was satisfied by the language in the complaint stating that the defendant unlawfully possessed the deer.
The defendant and the district court relied upon the case of State v. Jamieson, 206 Kan. 491, 480 P.2d 87 (1971), to support the position that either the statutory language “unless and except it is permitted by law of rules and regulations adopted by the secretary in accordance with K.S.A. 32-805” or the word “unauthorized” had to be included in the complaint as an essential element of the offense. In Jamieson, the defendant was charged with procuring an abortion contrary to the provisions of K.S.A. 21-437 (Corrick). At that time, the Kansas abortion statute, after proscribing the procurement of an abortion, included the following proviso: “unless the same shall have been necessary to preserve the life of such woman.” The information charging Jamieson did not include the negative averment that the actions of the defendant were not necessary to preserve the life of the woman involved.
Jamieson held that the exception in K.S.A. 21-437 (Corrick), “unless the same shall have been necessary to preserve the life of such woman,” was an integral part of the definition of the offense of abortion and the failure to negatively aver the exception in the information constituted a fatal defect. 206 Kan. at 495. Jamieson cited several earlier Kansas cases dealing with two fundamental principles regarding challenges to complaints or informations: (1) Where the statutory exception constitutes an integral part of the offense, it must be a negative averment in the complaint; see generally State v. Hill, 189 Kan. 403, 369 P.2d 356 (1962), 91 A.L.R.2d 750; and (2) if the allegations of the information or complaint may be true and the defendant still is innocent, the information is bad; see State v. Ferron, 122 Kan. 845, 847, 253 Pac. 402 (1927). 206 Kan. at 493. These two principles cited in Jamieson remain good law. However, the court in Jamieson went on to make what we believe to be a mistaken application of these principles to the facts of the case.
In Jamieson, the court said:
“The defendant in the present case might be found guilty of the abortion and still be innocent under the language of the statute creating the exception.
“The appellee in its brief stresses the use of the word ‘unlawful,’ stating:
‘. . . The Information filed herein alleges that the acts performed were performed in an unlawful’ manner, which although failing to recite all the details, which utmost certainly might require, still fully apprised the defendant of the crime with which he was charged. . . .’
“The manner of the performance of the abortion might be unlawful and still not constitute an offense under the statute if necessary to save the life of the mother. It was stated in State v. Bridges (Mo.), 412 S.W.2d 455, at 458:
\ . . It does not follow, however, from the fact that the abortion was unlawful and felonious that the abortion was not necessary to save the mother’s life. The necessity might exist and the act yet be unlawful and felonious by reason of the manner in which the defendant performed the act. A charge that the act was done unlawfully and feloniously does not supply the missing required allegation that the abortion was not necessary to preserve her life.’ ” 206 Kan. at 493-94.
Jamieson concluded with a citation from American Jurisprudence to the effect that when filing a complaint under statutes similar to the Kansas abortion statute in effect at the time, the indictment must allege that production of a miscarriage was not necessary to save the life of the mother. 206 Kan. at 495.
The remarks made in Jamieson that the abortion may be unlawful and still not be a crime if performed to save the life of the mother are incorrect. If the act is alleged to be an unlawful abortion, then of necessity it is not done to save the life of the mother. Understandably, the trial court in the case before us found it difficult, if not impossible, to reconcile the present case and Jamieson. While we conclude that the principles announced in Jamieson are correct statements of the law, their application was mistaken; therefore, we now overrule Jamieson.
In State v. Perello, 102 Kan. 695, 171 Pac. 630 (1918), cited by Jamieson, the court held that an exception in the intoxicating liquor law need not be stated in the information. During Prohibition, the statute in question proscribed possession of intoxicating liquor except under certain circumstances for druggists or registered pharmacists. A section of the act authorized possession by certain persons engaged in the wholesale drug business and who in good faith engaged in the retail drug business, the exception being coupled with elaborate provisions designed to prevent evasion of the law. Perello states that the statute
“does not set forth, nor does it purport to state, except in most general terms, the nature of the exceptions in favor of druggist[s] and registered pharmacists. It is a mere parenthetical expression thrown in to show that in another part of the act provisions will be found which except certain classes of persons from the operation of the statue. As held in the Oklahoma case [Smythe v. State, 2 Okla. Crim. 286, 101 Pac. 611 (1909)], we think the rule contended for by the appellant should never apply where the matter of such exception or proviso does not enter into and become a material part of the description of the offense.” 102 Kan. at 697.
It is clear that Jamieson found the particular allegation involving an abortion to save the life of the mother an integral part of the offense. In that respect, Jamieson correctly applied the principle that where such averment in an integral part of tire offense, it must be included in the information. However, as in Perello, the exceptions listed in the statute we now examine are not an integral part of the offense.
The statute that we examine is similar to the statutes governing a number of drug offenses in Kansas. For example, K.S.A. 65-4127b provides that it is unlawful for a person to possess certain controlled substances “except as authorized by the uniform controlled substances act.” Under this act, pharmacists, physicians, and certain other persons are legally authorized to possess certain controlled substances. In an information charging a defendant with possession under K.S.A. 65-4127b, it is not necessary to include an allegation that the possession was not authorized by law. It is sufficient if the information alleges that the possession was unlawful and felonious. If the defendant is authorized under law to possess the substance, that fact is a defense to the charge. The lack of an averment that the defendant was not authorized to possess the substance does not render the complaint defective. Instead, the “except as authorized” clause refers to other portions of the statutes which become matters of defense and need not be set forth in the complaint.
We conclude that the exceptions stated in K.S.A. 32-1002(a)(2) do not enter into and become a material part of the description of the offense. The exceptions are more in the nature of a parenthetical expression referencing other parts of the act and regulations which render possession under K.S.A. 32-1002(a)(2) lawful. Under such circumstances, these exceptions from other portions of the statutes and regulations become matters of defense for the party so charged and need not be stated in the complaint. See State v. Thompson, 2 Kan. *432, Syl. ¶ 1 (1864).
The defendant argues that use of the word “unlawfully” in the complaint has been held insufficient to correct a jurisdictional defect and therefore does not save the complaint in this case. The defendant again relies upon Jamieson, 206 Kan. at 493, wherein we concluded that the word “unlawful” did not abrogate the general rule that if the allegations in the information may be true and the defendant may still be innocent, the information is bad. Unlike Jamieson, we have concluded that the exceptions in K.S.A. 32-1002(a)(2) are not an integral part of the charge. Moreover, as discussed below, the use of the word “unlawfully” in the present complaint excludes all possibilities that the defendant may still be innocent.
The defendant relies upon State v. Hall for the proposition that the word “unlawful” is insufficient to correct a jurisdictional defect. In Hall, the information alleged the defendant unlawfully, feloniously, and willfully obtained or exerted unauthorized control over property. We stated that the fact that the information alleged Hall acted “unlawfully” and exerted “unauthorized” control over the property was not sufficient to correct the jurisdictional defect, namely, omission of the word “permanently.” 246 Kan. at 746.
However, Hall provides no support for the defendant in this case. The use of the language “unlawfully” in Hall could not, as the court clearly stated, he a substitute for the required language “permanently.” A person may unlawfully obtain or exert unauthorized control over property without intending to permanently do so. In such a case, the person is not guilty of the crime charged, theft, but is instead guilty of criminal deprivation of property. See K.S.A. 1994 Supp. 21-3705. Therefore, under the rule announced in Jamieson, a person could unlawfully, feloniously, and willfully obtain or exert unauthorized control over property but still be innocent of theft. Under these circumstances, the information is defective. Hall has no application to cases such as the one before us, for in this case, if the defendant unlawfully possessed wildlife, he did so without authorization, and if the defendant had authorization, he did not unlawfully possess wildlife.
A commonsense reading of the statutes involved in this case discloses that the possession of a deer is either unlawful because it is not authorized or lawful because it is authorized. If the possession is authorized, then the possession is inherently lawful. There can be no unlawful possession of a deer where the possessor is authorized to possess the deer. Likewise, the only unlawful possession of a deer occurs where the possessor is not authorized to possess the deer. Thus, a complaint alleging that the defendant unlawfully possessed the deer correctly states an offense.
We have held that a complaint, information, or indictment need not use the exact statutory words if the meaning is clear and the complaint reasonably charges the offense. See State v. Vakas, 242 Kan. 103, Syl. ¶ 3, 744 P.2d 812 (1987); State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). Under these circumstances, the complaint, because it alleged that the possession of wildlife was unlawful, was not jurisdictionally defective, and the district court erred in granting the defendant’s motion for arrest of judgment.
Reversed and remanded.
Abbott, J., concurs in the result. | [
-15,
-18,
-3,
31,
15,
97,
34,
62,
67,
-77,
102,
83,
-117,
-37,
4,
59,
114,
-83,
53,
121,
-57,
-73,
119,
-63,
22,
-13,
-111,
-41,
-69,
79,
-20,
-28,
8,
-112,
-54,
117,
70,
8,
-43,
-100,
-114,
5,
-104,
-48,
-47,
74,
60,
105,
82,
11,
113,
31,
-85,
42,
22,
-61,
105,
44,
107,
-83,
-24,
-47,
-69,
87,
-17,
18,
-94,
-122,
-100,
-123,
88,
45,
-112,
56,
2,
-24,
-13,
-74,
-122,
116,
13,
-103,
-120,
98,
98,
33,
28,
-52,
-96,
-120,
47,
30,
-113,
-89,
-104,
0,
107,
32,
-106,
-99,
116,
118,
46,
120,
-25,
-115,
31,
-4,
11,
-49,
-80,
-77,
-49,
36,
-62,
83,
-37,
-91,
49,
113,
-33,
-30,
92,
87,
112,
-101,
-114,
-107
]
|
Opinion by
Holt, C.:
Plaintiff in error brought his action against defendant to quiet title to the east half of the southeast quarter, section 27, township 19, and range 3 east, in Marion county, Kansas. The case was tried by the court without a jury, and it found the facts substantially as hereinafter set forth. R. A. Catlin made a homestead entry upon said land upon the 20th day of March, 1863. At that time it was a part of the public domain of the United States. This entry was canceled for abandonment, on the 18th day of December, 1871. On the 23d day of the same month, the defendant, having the requisite qualifications, made a homestead entry of this land. On the 30th day of November, 1872, the defendant offered, on sufficient proof of residence aud cultivation, to commute his homestead and purchase said land, but the register aud receiver of the land office at Salina, Kansas, refused to allow him to do so, on the ground that the land in question had been withdrawn from settlement as a part of the public domain before the defendant’s homestead entry, and that the A. T. & S. F. Rld. Co. was entitled to said land under the provisions of the act of congress approved March 3, 1863, granting certain lands to the state of Kansas, for the benefit of designated railroad companies. On the 13th day of December, 1872, the defendant’s entry was canceled. He appealed from the decision of the register and receiver to the commissioner of the general land office, who, on May 23,1873, affirmed it. On February 9, 1874, the secretary of the interior affirmed the commissioner’s decisiou, and the case was closed on the 13th of February, 1874, at the local land office. On January 9,1873, the A. T. & S. F. Rld. Co. selected lands embracing this tract, and said selection was approved May 28, 1874. At that time the land was certified to the state of Kansas as indemnity land for said company, and the state issued a patent of said land to the railroad company on the 18th day of January, 1875. This land was within the limits of the withdrawal of 1863, for the benefit of the grant to certain railroads by the act of congress, approved March 3, 1863, and by the withdrawal of November 4, 1869, it fell within the indemnity limits of the grant.
On the 22d of October, 1873, Rebecca Baxter, wife of the defendant, made a written contract with the said railroad company, by which it sold the land in question to her for $-, of which the sum of $58.80 was paid in cash, and the balance was to be paid in eleven future installments, which she promised to pay. On the 15th of June, 1874, the defendant was indebted to William Kellison in the sum of $320.85, and to secure the payment of said sum, the defendant and his wife Rebecca Baxter assigned said land contract to said William Kellison, by indorsing thereon the following contract:
“I, R. A. Baxter, and E. Baxter, her husband, the within-' named purchaser, for and in consideration of $287 to me in hand paid, do hereby sell, assign and transfer all my right, title, interest and claim in and to the within-described tract or parcel of land unto William Kellison, his heirs and assigns, forever. And I hereby authorize the Atchison, Topeka & Santa Fé Railroad Company to receive from him, the said, William Kellison, any or all money or unpaid balance due on the within contract to said company in part consideration for said land, and upon the final payment of the purchase-money, and a full compliance with all the requirements contained within the within agreement or contract, to execute or cause to be executed to him, the said William Kellison, the deed to said land, instead of to me.”
On the 10th day of August, 1874, the debt owing by defendant to Kellison still being unpaid, the defendants induced one J. M. Young to pay Kellison, and also to pay several other debts of the Baxters, and to join with him as his surety in a bond of $500, upon which Young afterward paid damages to the amount of $227; and as security to Young for these amounts, defendant caused William Kellison and his wife to assign to the said Young the railroad contract for the land in question, which was in form the same as the one quoted above, differing only in the amount of the consideration, (he dates, and the names. The amount thus advanced became due, and in default of payment Young commenced an action of unlawful and forcible detainer against the defendant and his wife Rebecca, before a justice of the peace. The Baxters filed a written answer, in which they alleged that they were the owners of said land under the contract of t,he railroad company; that they assigned this contract to Kellison as security to him for the payment of the sum of $325.85; that they had induced Kellison and his wife to assign the same to Young as security for money which Young had advanced them and as security for Young’s signing the bond in their iuterest, and that this whole transaction was intended by Young and the Baxters as a mortgage upon this laud. This answer was sworn to. On this showing the case was certified to the district court of Marion county, and upon trial, judgment was rendered for the defendants.
On the 1st of July, 1875, Young brought his action in the district court to foreclose the assignment of the said contract as a mortgage, and in due time obtained a judgment, and bought in the land at sheriff’s sale, subject to the contract with the railroad company. During all these proceedings no claim was set up by Baxter of any right to the land by virtue of his homestead entry. After the purchase of said land by Young, all of the deferred payments were made to the railroad company, and he received a warranty deed to the land in question.
On the first of January, 1880, J. M. Young sold this tract of land to one H. E. Yingst, who sold it to Adam Kraft, plaintiff in this suit, on the 31st day of December, 1881, and executed to him a warranty deed. He told Kraft, before the purchase of the land, that the defendant threatened to assert some claim to the land under a homestead entry, but said he thought the claim of plaintiff was of no consequence. In the fall of 1883, Kraft planted about twenty acres of winter wheat on this land, and in the spring of 1884 was preparing to cultivate au additional part of it. On the 10th day of November, 1883, the defendant made application at the United States land office at Salina to have his homestead entry reinstated, under the act of congress of April 21, 1876; which application was refused. Thereupon he appealed to the commissioner of the general land office at Washington, and on the 19th day of February, 1884, the decision of the land office at Salina was reversed, and the defendant’s homestead entry ordered to be held for reinstatement, subject to an appeal to the secretary of the interior. The appeal was not prosecuted, and on the 30th of April, 1884, the defendant’s homestead entry upon the land was reinstated. On the 12th day of May, 1884, the defendant commuted his homestead entry by making proof of residence and cultivation, and paying to the receiver of the land office at Salina the government price of the laud, and obtained from the said receiver his final receipt. Upon these findings the court rendered judgment for the defendant. Motions for a judgment upon findings, and for a new trial, were overruled. The plaintiff has brought the case to this court'.
There is no objection made to the findings on the ground that they are not supported by evidence; the contention is that they are not sufficient to support the judgment rendered by the court. It is clear that the defendant has the paramount title to this land, and ought to obtain a judgment in his favor, unless he is estopped. The plaintiff claims that the defendant is estopped from setting up his title to this land against him, for the reason that defendant’s wife entered into a contract with the railroad company for the land, and afterward he joined with her in assigning such contract for the payment of his debts, and in all the litigation which arose from such assignment he failed in any way to mention- his own interest in this laud under the homestead entry;' and claims that he should not be heard to dispute the title of the man who derived his estate from the instrument he and his wife executed. It is not contended that Baxter’s homestead entry passed by the contract, but it is claimed that he cannot now assert that he had any such right or claim, aud therefore cannot set up the title he derived thereby; The assignment purports to convey the interest that Bebecca Baxter had under her contract with the railroad company. There is no. pretense that they conveyed any other or different one, and when Young obtained his judgment and sheriff’s deed, he obtained only the rights and interest the Baxters may have had under the contract.
But 'referring to the question of estoppel, what elements must exist to constitute an equitable one ? Bigelow lays down the rule as follows:
“1. There must have been a false representation or a concealment of material facts.
“ 2. The representation must have been made with knowledge, actual or virtual, of the facts.
“3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter.
“4. It must have been made with the intention, actual or virtual, that the other party should act upon it.
“5. The other party must have been induced toactupon it.”
There was absolutely nothing showing that lie made a false representation. Was there a concealment of material facts? What was there to conceal ? In 1871 the defendant had made his homestead entry at the Salina office; it had been canceled by the local officers there, and their action had been approved both by the commissioner of public lands and the secretary of the interior. Did he keep silent when he should have disclosed his interest in this land under his homestead entry? If he kept back the facts, did he intend actually and virtually that Young might act upon his silence? We do not know from the evidence or findings that Young did not know all about defendant’s efforts to obtain the land under his homestead entry. The findings are silent upon this point. If plaintiff claims by estoppel, should he not show affirmatively that Young did not know of defendant’s homestead entry ? We think that this whole question of estoppel has reference only to the time of borrowing the money; even what was said by defendants afterward, has but little place here. It was found by the court that the assignment was intended as a mortgage, and the answer of the Baxters referred only to what was done at the time of the assignment to Young, and it having been established by the court that such -instrument was in fact a mortgage, it is not to be presumed that the action for foreclosure, sale and execution of a sheriff’s deed was induced by the answer of the Baxters, but solely because Young held a mortgage upon the interest that Mrs. Baxter had in the land, and wished to foreclose it. Could Baxter conceal the fact that he had an interest in the land, when he did not know it himself, and all the officers had decided that he had none ? But it is claimed that the facts ought to have been disclosed; if they had been, what possible effect would it have had ? His homestead entry was only brought to life by an act of congress of April 21,1876, which was not then contemplated, at least by either Baxter or Young. At this time Baxter had no hopes that his homestead entry would ever be reinstated; he believed unquestionably that all the estate they possessed was derived from the contract of his wife with the railroad company. We think the defendant did not conceal material facts concerning his interest in this land, with the intention of inducing Young to advance him money.
The plaintiff obtained this land under the act of congress of May 20, 1862, which provides:
“That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
The plaintiff says that is a strong reason why the defendant should not be allowed to say that he had a homestead entry, for had Young known it he would not have taken as his security a worthless title. This argument is not as sound as it at first appears. It would permit this land to be taken for his debts by an estoppel, when it could not be done by the positive contract of the defendant, or even by any direct proceeding. The statute provides that in no event shall the land be liable for any debts contracted prior to the issuing of the patent. We have searched in vain for an exception to this comprehensive language, which would apply to the facts in this action. We do not feel at liberty to make one. The plaintiff had no legal title to the land when his wife made the assignment of the contract with the railroad company. Under his homestead entry he had an inchoate right — an equity in the land — which might ripen into a title by the performance of certain acts. This inchoate interest was given life, by an act of congress, subsequent to the making of such assignment; and then it was necessary for defendant, in order to acquire a title to the land, to state under oath that the land was taken and proved up for his own benefit. When the defendant made application for this laud, he was required to make oath that his entry was made for his exclusive use, and not either directly or indirectly for the benefit of any other person. He could not have made a contract that would have vested any right in this land, contrary to the law of congress relating to homesteads. We believe he could not preclude himself from taking advantage of what is contrary to public policy. If he could, the doctrine of estoppel could be used for the purpose of defeating the plain provisions of the law.
Therefore we recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
98,
-36,
30,
-40,
-24,
34,
-102,
97,
-85,
-25,
87,
-51,
-54,
24,
41,
-26,
45,
-15,
123,
-58,
-89,
23,
-93,
82,
-77,
-47,
-51,
57,
73,
118,
-57,
76,
48,
74,
85,
-58,
0,
69,
28,
-114,
12,
-119,
72,
-45,
0,
52,
107,
66,
79,
17,
-82,
-13,
42,
29,
-61,
73,
44,
-53,
45,
-127,
-8,
-69,
71,
-4,
18,
-95,
68,
-104,
3,
72,
-70,
-110,
29,
0,
-24,
83,
36,
-122,
84,
3,
-119,
45,
102,
103,
33,
60,
-49,
-32,
24,
15,
-15,
-115,
-26,
-10,
64,
67,
40,
-106,
-99,
85,
16,
71,
-4,
-18,
-124,
29,
60,
7,
-21,
-108,
-93,
-113,
46,
-128,
3,
-5,
-123,
-80,
96,
-55,
-90,
94,
71,
56,
27,
-113,
-3
]
|
The opinion of the court was delivered by
Burch, C. J.:
The action was one for damages for injury to real estate, consequent on erection of a municipal water tower and tank on adjoining land. A demurrer to the petition was overruled, and defendants appeal.
The city of Kansas City is a city of the first class, having the commission form of government. In July, 1924, the governing body enacted a zoning ordinance creating residence districts. The ordinance provided that no building or premises should be used and no building should be erected in a residence district, except for one or more enumerated uses. In the enumeration appeared the following: “11. Public and semipublic uses as provided in section 8.”
Section 8 contained the following:
“The board of commissioners may, by special permit after public hearing, authorize the location of any of the following buildings or uses in any district from which they are prohibited by this ordinance:
“8. Public utility.”
Plaintiffs own a lot in a residence district, on which stands a dwelling house. The petition alleged plaintiffs purchased the lot and erected the improvement because the lot was in a zoned residence district and they could be assured of a quiet district in which to reside.
In 1929 the legislature passed an act abolishing the office of water and light commissioner in the city of Kansas City. Management and control of its water and light plants were committed to a board of public utilities, charged with duty to supply water and electric energy for domestic and industrial purposes and for public use in the city. The board was given plenary authority to manage, operate, maintain and control such plants, including authority to improve, extend and enlarge. (R. S. 1933 Supp., art. 12, ch. 13.)
In the year 1934 the board of public utilities erected a water tower 'and tank, 125 feet high, on a tract of ground 90 by 135 feet in area, owned by the city, and adjoining plaintiffs’ lot. The tank is supported by six steel standards, held together by rods, braces and grillwork. There are two perpendicular pipes in the structure. Through one of them water is pumped into the tank, and through the other' water is released from the tank. The structure is surrounded by a high woven-wire fence. No application was made for a permit to erect the structure, no hearing was had, and no permit to erect the structure was issued. Plaintiffs contend they have a cause of action for damages for noncompliance by the board of public utilities with the zoning ordinance.
While maintenance and operation of a water plant fall on the proprietary, rather than on the governmental side of municipal power, the business has a distinct governmental aspect. Water is provided for protection against fire, for sanitary purposes, and for other purposes falling within police power.
It is difficult to say that, under the regime existing previous to enactment of the statute of 1929, the governing body of the city was required to make application to itself for a permit to erect a structure regarded as necessary to improve the water service. The term “public utility,” as used in the zoning ordinance, doubtless applied to a public utility such as a privately owned water plant, and not to the city’s own plant. In any event, the law of 1929, enacted some five years after the zoning ordinance became effective, authorized the board of public utilities to operate the water and light départments of the city in its own way without consulting anybody. Besides that, the law required that on request of the board of public utilities, it shall be the duty of the governing body to enact ordinances deemed necessary by the board for protection of the water and light plants. While it may be assumed the board of public utilities will act in a manner compatible, as far as possible, with the purpose of the zoning ordinance, the ordinance does not impose condition on exercise by the board of its best judgment with respect to what efficient water service demands.
Plaintiffs suggest in their brief that the court might take judicial notice of the fact there are bigger and better hills on which the tower and tank in question might have been located. The court cannot go that far, but if it could, it could not solve the engineering problem involved.
The result of the foregoing is, the tower and tank do not constitute an unlawful structure, and do not constitute a nuisance per se because of noncompliance with the zoning ordinance, and the question whether the city, acting in its proprietary capacity, has injured ■the plaintiffs’ land in a manner giving rise to a cause of action for damages, is to be solved on common-law principles, without regard to the zoning ordinance.
The petition contained the following allegation:
“Prior to the construction of said water tower, the ninety-foot lot occupied ■by said tower was about two feet lower than the property of the plaintiffs, but in constructing same, defendants filled in and graded up with earth the ninety-foot lot on which said tower is constructed about two feet higher than plaintiffs’ property, making a shed whereby the surface water will run from said ninety-foot lot upon the plaintiffs’ property, endangering their property, and will cause their basement to be flooded.”
Passing the fact that plaintiffs’ land has not in fact been injured by diversion of surface water, the court knows of no rule of law requiring the city to maintain the level of its ground below the level of plaintiffs’ ground, or at the level of plaintiffs’ ground. Previous to elevation, the city’s land was lower, in relation to plaintiffs’ land; now plaintiffs’ land is lower. Elevation of the city’s land casts surface water on plaintiffs’ land, and nothing else is involved.
Rain falls, snow melts, and surface water takes its vagrant way. It may not be accumulated by one owner and cast in volume or with force upon the land of another, but, generally speaking, consequence of retention, diversion, repulsion, or altered transmission, is not actionable injury, unless pursuant to statute relating to agricultural land and highways outside the boundaries of cities. (R. S. 24-105; Liston v. Scott, 108 Kan. 180, 194 Pac. 642.)
In the opinion in the case just cited appears the following quotation from the opinion in an earlier case:
“The landowner has the right to use and improve his own land for the purpose for which similar land is ordinarily used; and he may build upon it, or raise or lower its surface, even though the effect may be to prevent surface water, which before flowed upon it, from going upon it, or to draw from adjoining land surface water which would otherwise remain there, or to shed surface water over land on which it would not otherwise go.” (p. 183.)
The limitation of use appearing in the first sentence of the quotation does not refer to interference with flow of surface water, and so far as that subject is concerned, a landowner may use and improve his own land for any lawful purpose to which it may be reasonably adapted.
The claim filed with the city was attached to the petition. The claim said that when the wind blows the tower causes a great noise which interferes with the quiet of the neighborhood. The petition itself, which may not enlarge, but may restrict the claim, says that on windy evenings the tower and fence produce a mournful noise in such volume as to destroy the peace and quiet of the neighborhood, preventing occupants of the premises from sleeping and getting their proper rest.
The court will not define the term "evening,” nor the term “windy evening.” When evening begins and when it ends may be somewhat indefinite. (Webster’s New International Dictionary, second edition.) Except, perhaps, in wintertime, it is not a greatly extended period, and it may be that on windy evenings plaintiffs can, in the interest of the general welfare, defer until ordinary bedtime exercise of their lawful privilege to devote themselves to restful slumber.
In this case the offending thing is sound. In the case of Shepler v. Kansas Milling Co., 128 Kan. 554, 278 Pac. 757, the offending thing was light. Light reflected from tall grain tanks, painted white, prevented plaintiff from enjoying his front porch- on sunny afternoons. This court, reversing the judgment of the district court, held a demurrer to plaintiff’s petition should have been sustained. The principles discussed and applied in the Shepler case apply in this case. Plaintiffs undertake to distinguish the Shepler case on grounds not made the basis of the decision.
Defendants cite the case of Whitfield v. The Town of Carrollton, 50 Mo. App. 98 — a water-standpipé case. One paragraph of the syllabus reads:
“The erection by a city or by its license of a standpipe on a lot owned by it is not a nuisance, nor does it give a right of action to the adjoining lot owner.”
Plaintiffs undertake to distinguish the case on the ground no zoning ordinance was involved. So far as it is relied on to constitute a cause of action, the zoning ordinance of the city of Kansas City has been eliminated from consideration in this case.
The appeal was consolidated for hearing in this court with appeals in the following cases:
“No. 32,420. Frank St. John et al., Appellees, v. Kansas City et al., Appellants.
“No. 32,421. Josephine Collins, Appellee, v. Kansas City et al., Appellants.
“No. 32,422. J. A. McConnell et al., Appellees, v. Kansas C-ity et al., Appellants.
“No. 32,423. Kate McConnell, Appellee, v. Kansas City et al., Appellants.”
In those cases the petitions undertook to state causes of action for damages for injury to real estate consequent on erection of the water tower and tank, and demurrers to the petitions were overruled.
Some of'the petitions alleged that if the tower and tank should collapse or should be blown down great destruction of property and loss of life would result from escape of water. No negligence in construction which might cause collapse was alleged, no lack in constraction of strength to resist predictable wind was alleged, and injury was purely speculative. The decision in the case of Whitfied v. The Town of Carrollton, 50 Mo. App. 98, referred to above, dealt with somewhat similar allegations as follows:
“A petition that states that a standpipe, on account of its height and size and weight and the purpose for which it was to be used, was liable to be struck by lightning or blown over, but fails to charge that it was negligently constructed, and, therefore, dangerous, does not state a cause of action; and such allegation as that the water escaping from the standpipe renders the ground wet, soggy and unhealthy is so vague and indefinite as to state no actionable facts.” (S'yl.)
Statements in some of the petitions that the structure was unsightly did not constitute causes of action for damages.
The judgment in each case is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
-15,
110,
-40,
-50,
26,
66,
24,
-79,
73,
-77,
-12,
87,
-51,
-38,
5,
109,
-13,
125,
84,
115,
-64,
-78,
15,
-54,
-106,
-5,
-5,
-43,
-8,
125,
-12,
-57,
72,
33,
74,
-107,
-58,
-62,
85,
-36,
-122,
5,
10,
-51,
-47,
64,
54,
122,
114,
70,
85,
-115,
-9,
40,
24,
-61,
-20,
44,
-55,
37,
81,
-5,
-116,
29,
110,
20,
32,
54,
-108,
-125,
96,
8,
-104,
49,
0,
-20,
55,
-92,
6,
-11,
5,
-101,
12,
-94,
102,
26,
41,
-29,
-24,
-87,
14,
-33,
-113,
-90,
-111,
88,
98,
-96,
-66,
-97,
117,
6,
71,
122,
-25,
-123,
95,
124,
7,
-121,
-10,
-77,
15,
-31,
-125,
1,
-17,
-125,
33,
100,
-50,
-94,
94,
-57,
118,
23,
-114,
-35
]
|
The opinion of the court was delivered by
Harvey, J.:
Appellant, suspected of transporting intoxicating liquors, was stopped and her automobile searched by peace officers at Ottawa. She was taken to the sheriff’s office, where the officers, with the aid of the matron, discovered a bottle of whisky concealed in her clothing. She was charged, tried and convicted of the unlawful possession and transportation of intoxicating liquors. She has appealed and contends the evidence is insufficient to sustain the verdict. The point is not well taken.
The judgment of the court below is affirmed. | [
-109,
-18,
92,
-116,
42,
96,
35,
-70,
65,
-109,
-9,
115,
-81,
66,
32,
99,
-82,
127,
100,
75,
-47,
-73,
87,
65,
-42,
-45,
-14,
-61,
-79,
-17,
-12,
109,
76,
48,
-117,
-43,
102,
-55,
-111,
-40,
-122,
3,
-8,
-63,
72,
56,
52,
59,
3,
15,
97,
30,
-29,
46,
26,
-45,
-87,
44,
75,
61,
-48,
-8,
40,
-99,
15,
22,
-111,
36,
-99,
-127,
-40,
46,
28,
-79,
0,
-8,
115,
-90,
-122,
116,
31,
-103,
-116,
64,
106,
-128,
64,
-25,
-84,
-120,
33,
122,
-97,
38,
24,
41,
105,
-23,
-108,
-99,
124,
18,
43,
126,
-61,
-43,
95,
100,
-121,
-49,
-76,
-79,
9,
40,
-64,
15,
-33,
-95,
48,
85,
-51,
122,
92,
5,
114,
-101,
-114,
-102
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action on a life insurance policy. Judgment was for defendant. Plaintiff appeals.
The facts are all admitted.
In 1926 Inez Hammond, the wife of plaintiff, purchased a life insurance policy with the Illinois Bankers Life Association. Plaintiff was the beneficiary named in the policy. Insured paid the premiums on this policy until January 29, 1931. About that time this company was taken over by the Illinois Bankers Life Assurance Company.
On December 10, 1931, a certificate was issued to Inez Hammond. This certificate became a part of the policy sued on. By the terms of this certificate Mrs. Hammond received a credit in excess of $100 with defendant. It is known as a survivorship-fund certificate.
Mrs. Hammond paid the premiums due on the policy up to the premium due October 29, 1932. Thirty days prior to that date defendant notified her as to when the premium would be due and the amount of it. Later defendant notified Mrs. Hammond that unless the premium of $25.25 was paid on or before November 29, 1932, her policy would lapse.
On November 25, 1932, defendant mailed to Mrs. Hammond a premium-extension agreement and contract drawn to mature August 1, 1933. At the same time Mrs. Hammond was notified that upon receipt of the extension agreement and the payment of $20 cash on or before November 29,1932, the policy would be continued in force.
On November 29, 1932, Mrs. Hammond signed the extension agreement and mailed it to defendant, together with a check for $20 drawn on the Coats State Bank payable to defendant and signed by plaintiff.
The extension agreement was received by defendant on December 1, 1932.
On December 6, 1932, a premium receipt showing the policy to be in good standing until August 1, 1933, was issued by defendant and mailed to Mrs. Hammond.
When the check for $20 that has been spoken of was finally presented to the Coats State Bank, payment of it was refused on account of insufficient funds.
On December 17, 1932, defendant advised Mrs. Hammond that the check had been turned down and on that account the credit she had with the company had been canceled and her policy had lapsed. She was advised that the policy would be reinstated if she was found to be reinsurable by the company after an examination and would send defendant a valid remittance of $20.
Upon receipt of this letter Mrs. Hammond mailed defendant a draft for $20. At that time Mrs. Hammond could not pass an examination for insurance.
The draft just spoken of and the premium-extension agreement were retained by defendant until February 3, 1933. On that date they were returned to Mrs. Hammond.
Mrs. Hammond died from cancer on February 28, 1933.
From the time of the attempted cancellation of the policy until her death Mrs. Hammond was unable to pass an insurance examination.
Proof of death was made and payment of the policy was refused. This action followed. The facts were agreed to as they have been stated here. Judgment was given for defendant. The appeal is from that judgment.
It is the contention of defendant that in order to keep the policy in force the payment of $20 should have been made; that the giving of the check which was not good constituted no payment at all as far as the $20 is concerned; and that when that payment was not made before the final due date the situation was the same as though nothing had been done by Mrs. Hammond, and the policy lapsed.
Appellant contends that when the first check for $20 was accepted by defendant, together with the extension agreement, and the policy was extended to August 1, 1933, that defendant could not subsequently cancel the policy without giving the notice required by the statute.
We will examine the premium-extension agreement. It reads as follows:
“On or before August 1, 1933, after date, without grace and without demand or notice, I promise to pay to the Illinois Bankers Life Assurance Company, at its office in Monmouth, Illinois, for value received, the sum of seventy-five and 30/100-dollars ($75.30), with interest at the rate of six percent per annum from date, and with attorney’s fees. This promise to pay is accepted by the company at the request of the promisor, together with twenty and no/100 (cash) dollars deposited in cash on the following express agreement:
“The time of payment of the premium of $95.30, due on the 29th day of October, 1932, under the terms of policy No. 324885, issued by the company on the life of Inez Hammond, is hereby extended until midnight of the due date of this obligation, and if payment in full is made on or before this due date, such payment, together with the cash deposit heretofore referred to, shall be accepted by the company in full payment of the above-named premium, and all rights under the policy shall be the same as if the premium had been promptly paid when due. I understand and hereby agree that if this premium extension agreement is not paid at maturity, said policy shall, without notice or any affirmative act on the part of the company or any of its officers or agents, be null and void, and the policy shall automatically cease to be a claim against the company, and the company shall retain the cash deposit as part compensation for the rights and privileges herein granted; and that this premium extension agreement and accrued interest shall, without rebate or discount and without reviving said policy or any of its provisions, be collectible without relief from valuation or appraisement laws, for the proportion of its face, with interest, that the time the insurance has been continued by this premium extension agreement bears to the whole time covered by said premium. I understand and agree that neither this premium extension agreement nor any extension thereof is given or accepted as a payment of said premium.”
The premium-extension agreement receipt which was mailed to Mrs. Hammond on December 6, 1932, or seven days after the date set for final payment, is as follows:
“Will be due August 1, 1933.
“Received of policyholder mentioned herein premium-extension agreement of—
“............Seventy-five and 30-100..._.......dollars ($75.30), together with............ twenty and no/100 (cash) dollars deposited in cash.
“This receipt is given and promise to pay accepted by the company at the request of the promisor on the following express agreement:
“The time of payment of the premium of $95.30 due on the 29th day of October, 1932, under the terms of the policy No. 324885 issued by the company on the life of Inez Hammond is hereby extended, until midnight of the due date of this obligation, which shall be the due date of said premium as extended, and if payment in full is made on or before this extended due date, such payment, together with the cash deposit heretofore referred to shall, be accepted by the company in full payment of the above-named premium and all rights under the policy shall be the same as if the premium had been paid in cash. If such payment is not made in full on or before maturity, the policy shall automatically cease to be a claim against the company, and the company shall retain the cash deposit as part compensation for the rights and privileges herein granted. The promisor acknowledges that this premium-extension agreement and accrued interest, shall, without rebate or discount and without reviving said policy, or any of its provisions, be collectible without relief from valuation or appraisement laws for the proportion of its face, with interest, that the time the insurance has been continued by this premium-extension agreement bears to the whole time covered by said premium. The grace period provided in said policy shall not apply to this premium-extension agreement.”
The letter transmitting the premium-extension agreement receipt to Mrs. Hammond was as follows:
“Dear Madam: In re 324885.
“We are enclosing premium-extension agreement receipt showing your insurance in good standing until August 1, 1933, at which time this extension is due. If paid at maturity this will cover your premiums up to October 29, 1933.
“This department is maintained to serve you and we will be more than glad to be of insurance service to.you at any time.”
It will be noted that the first paragraph of the agreement is in form a promissory note; the agreement then extends the due date for the premium until the due date of the agreement, which was August 1, 1933. If the agreement was paid when due then such payment, together with the $20 cash, were to be accepted by defendant as a full payment of the premium.
The agreement then provided that if not paid at maturity the policy should be void and the agreement should be collectible for the proportion of its face, with interest, that the time the insurance had been continued by the agreement bore to the whole time covered -by the premium. It will be noted that the last sentence in the agreement was as follows: “I understand and agree that neither this premium-extension agreement nor any extension thereof, is given or accepted as a payment of said premium.”
It will be noted that the premium-extension agreement receipt acknowledged the receipt of the premium-extension agreement and the $20 cash. It further recited the extension of the due date of the premium until August 1, 1933. The receipt then recited how the amount of the extension agreement could be collected. The concluding sentence in the receipt was as follows: “The grace period provided in said policy shall not apply to this premium-extension agreement.”
When defendant discovered that the check for the cash payment was not paid for lack of funds and attempted to cancel the policy it retained this agreement. When the good draft for $20 was forwarded to defendant by Mrs. Hammond it was received and retained by the company for about forty-five days. What was the effect of this? Here was a promise on the part of Mrs. Hammond to pay part of the premium on a certain date, also a good draft for the amount required. If the amount of the promise was not paid when due action could be brought to collect it. The company could not retain this promise and the. draft and at the same time cancel the policy. We cannot say that there was total failure of the insured to pay on the due date when an unconditional promise to pay was made by her and accepted and retained by the company. It is much the same as though the payment had been made by two checks — one good and one bad. No one would argue that the company could keep the money it received on the good check and at the same time cancel the policy. The agreement recites that it was not given as a payment of the premiums, but by its terms it is an unconditional promise to pay and by its terms it operated to keep the policy in effect.
Defendant points out that all notices sent to insured had printed on them the following clause:
“Remittance by check, bank draft, or money order will be considered payment of any amount due, provided such check, draft or money order is actually paid to the company on presentation in due course of business; and the issu anee of a receipt for such check, draft or money order shall not constitute a waiver of this provision.”
It is argued that on account of this provision the giving of the bad check as. a cash payment was of no avail. The trouble yvith that argument is that the company did not take the trouble to attempt to collect the check for $20 before extending the due date of the premium. It extended the due date and continued the policy in force before ascertaining whether the check was good or not. Then when it found that the check was not good it advised the insured that the policy had lapsed, but retained the extension agreement. If defendant desired to cancel the policy it should have returned the premium-extension agreement. When it received the draft it should have returned that. The agreement provides by its terms that it shall be collectible for the proportion of its face, with interest, that the time the insurance has been in effect bears to the whole time covered by the premium. Hence the company was secure at all times.
The insurance company made a valid extension agreement, assured died within the extension period, and the rights of the parties became fixed.
The judgment of the trial court is reversed with directions to render judgment for plaintiff for the amount sued for with interest. | [
-76,
124,
-12,
-84,
8,
-96,
42,
-109,
83,
-56,
-89,
-45,
-7,
-29,
20,
109,
-35,
45,
65,
98,
-45,
-93,
23,
34,
-34,
-77,
-7,
-43,
-71,
-33,
-4,
85,
77,
48,
10,
-59,
-30,
-104,
-59,
50,
-50,
-124,
-87,
-23,
-39,
-62,
48,
-21,
-112,
77,
101,
-34,
-93,
44,
-111,
79,
41,
43,
123,
-87,
-64,
-8,
-118,
-121,
127,
22,
-77,
68,
-114,
15,
-40,
10,
-104,
-79,
8,
-24,
114,
-90,
-58,
52,
111,
-103,
12,
98,
102,
-128,
117,
111,
-36,
-104,
55,
-2,
31,
-90,
-106,
88,
-109,
15,
-66,
-97,
116,
21,
-121,
124,
-2,
-43,
25,
40,
13,
-118,
-74,
-79,
-55,
120,
20,
11,
-9,
-109,
34,
81,
-56,
-24,
92,
69,
57,
19,
-50,
-110
]
|
The opinion of the court was delivered by
Johnston, C. J.:
The action was one involving condemnation of right of way for a state highway. The commissioners appointed fixed the valuation of the strip and the damages to the plaintiff at $1,050. Plaintiff not being satisfied with the amount awarded appealed to the district court, where it was tried and the jury fixed the amount of the award at $1,975, and defendant filed a motion for a new trial, which was overruled, and the case is brought here.
The principal error assigned and argued is with reference to the qualifications of a juror. It is claimed the juror was not qualified, and on the motion for a new trial they presented the affidavit of the county clerk, which is as follows:
“I, J. L. Lowe, of lawful age, being first duly sworn on oath, state: That I am the duly elected, qualified and acting county clerk of Miami county, Kansas, and as such have charge of and custody of the assessment rolls of said county for the year 1933.
“I have made a search of the assessment rolls for the city of Louisburg, Kansas, and also for Wea township of the year 1933, and I am unable to find the name of Frank Huber upon the said assessment rolls.
“Further affiant saith not. J. L. Lowe.
“Subscribed and sworn to before me this 9th day of November, 1934.
“Leta Myers Nolker,
(Seal) Deputy Clerk of the District Court.”
Error in the court’s refusal to grant a new trial is urged upon the point that Frank Huber was not a qualified juror for the reason he was not listed on the assessment rolls of the city of Louisburg or of Wea township. To excuse its delay in testing the qualifications of the jury until the motion for a new trial was filed, appellant says that Huber, when examined for his qualifications as a juror, stated he was a taxpayer of the county.
Was the proof offered sufficient to establish the disqualification of Huber? In the first place he was chosen under the provision of R. S. 43-102. Thus we have a showing that Huber was a taxpayer of Miami county. If he was a citizen of any township or city of the county, he would be qualified so far as residence was concerned. To show that he was not on the rolls of Wea township of the city of Louisburg, does not show an absence from the assessment rolls of other townships of the county. If it be assumed that Huber was on the jury, which is not shown by the abstract, proof that he was not on the assessment rolls of the one township or one city of the county, does not show he lacked the qualification of being a taxpayer. Frequently a taxpayer may live in a hotel of the town and his name will not be on the tax rolls, although he may be worth thousands of dollars of property situate in some other township or municipality of the county. To show he was disqualified it was necessary to show that he was not on the assessment rolls in any part of the county.
The proof does not show him to be disqualified and the defendant is not deemed to have established his disqualifications if it was entitled to show it at that time.
The judgment is affirmed. | [
-16,
-22,
-15,
-36,
10,
-64,
2,
12,
121,
-93,
39,
83,
-17,
-38,
4,
121,
-69,
61,
84,
122,
-25,
-77,
7,
-117,
22,
-109,
-5,
-41,
-14,
77,
-12,
-43,
78,
-80,
-54,
-107,
-26,
-54,
5,
92,
-116,
6,
-119,
-56,
-38,
96,
58,
125,
114,
11,
117,
-66,
-29,
42,
61,
-41,
-88,
44,
91,
-85,
16,
-80,
-6,
-123,
111,
23,
-79,
6,
-102,
1,
88,
42,
-104,
53,
0,
-8,
119,
-90,
-122,
-44,
9,
-71,
12,
102,
99,
33,
21,
-49,
-24,
-103,
14,
-78,
-113,
-89,
-108,
16,
90,
46,
-106,
-99,
116,
118,
7,
126,
-19,
4,
89,
44,
7,
-113,
-16,
-45,
-49,
118,
-128,
3,
-41,
-127,
52,
97,
-50,
-14,
95,
71,
89,
27,
-113,
-112
]
|
The opinion of the court was delivered by
Dawson, J.:
The state brought this action to enjoin the county superintendent of Brown county from changing the boundaries of four school districts for the benefit of another district.
The trial court denied the injunction, and the state appeals.
The controlling facts were these: In the southwestern part of Brown county is a village named Powhattan, which is situated in school district No. 80. That school district maintains a four-room school, staffed with four teachers, and equipped with a school building having modern facilities. The assessed valuation of the district is $460,963 and its tax rate for school purposes is 4.01 mills.
Surrounding school district No. 80 are school districts Nos. 43, 40,' 86 and 41. These are typical common-school districts with no more than the usual facilities and conveniences of schools of like familiar character. In school district No. 41 the assessed valuation is $265,-327 and the school levy is 3.39 mills. The record does not show the assessed valuations and school tax rates in the other districts affected.
The defendant made an order changing the boundaries of school district No. 43 by detaching 360 acres therefrom and adding the samq to school district No. 80. He similarly transferred 560 acres from school district No. 40, 240 acres from school district No. 86, and 160 acres from school district No. 41. All these transferred territories were added to school district No. 80.
The state contends that all this transfer of territory and alteration of school-district boundaries was arbitrarily made and wholly without lawful authority. The county superintendent did go through the form of posting notices in the four districts affected. Typical of all was the notice posted in school district No. 40. It reads:
“State op Kansas, Department of Education,
“twenty days' notice of alteration of school-district boundaries.
“Whereas, Application has been made to the superintendent of public instruction of Brown county to change the boundaries of school district No. 40, county of Brown, state of Kansas, as follows: . . .
“2. By detaching the east Vz of the SW quarter of section 27, the SE quarter of section 27, the NE quarter of section 34 and the NW quarter of section 35, all in township 3, range 16.
“Therefore, Notice is hereby given that, on the 2d day of April, 1934, at 2 o’clock p. m., I will take action upon said application.
“Dated this 12th day of March, 1934.
“C. M. Eisenbise, County Superintendent.”
Following such notice the formalities were simulated and the changes made as stated above.
The recitals in the notices of proposed alterations in the boundaries of the four districts that application had been made to the county superintendent to change the boundaries of these four school districts had no foundation in fact — unless an oral conversation of the county superintendent and one man who resided in Powhattan but contemplated moving to a farm in school district No. 40 be so considered. That man desired to have his farm attached to school district No. 80. Almost every other property owner in the four districts, so far as this record shows, was opposed to the proposed changes; and the defendant was thoroughly apprised of their attitude both before and after he set the formalities in motion to effect the alterations complained of. In conversations with protesting taxpayers the defendant developed his reasons for the alterations of the boundaries of the four districts. He repeatedly said:
“We should try to build up Powhattan and build up these little towns.”
Elsewhere he had repeatedly said:
“He intended to change the district [No. 40], He said the taxes were too high in Powhattan, district No. 80, . . . and that was before any notices were posted.”
Other witnesses testified:
“He [defendant] thought he ought to equalize the taxes a little; he did not see why a man oh one side of the road should pay more taxes than the man on the other.”
One witness testified:
“After he listened to us, he said he would not do anything that would change the land until he took this matter to the commissioners to see whether they would approve his action in the case. That was the first time w.e went down to protest on March 3d before notices were posted.”
Other witnesses testified to the same effect.
Evidence was adduced to show that school district No. 80 (Powhattan) had four teachers, fifty-eight pupils, a school building “with inside toilets, gymnasium and everything.” School district No. 41 had twenty pupils and no modern conveniences in its schoolhouse. School district No. 86 had a one-room school with an enrollment of thirty-five to forty pupils. Apparently the changed boundaries in school district No. 40 cut down the school enrollment to thirteen.
While it should need no dissertation to show that the alteration of school-district boundaries is not the arbitrary prerogative of the county superintendent, it is clear in this record that defendant proceeded on that assumption. It is not necessary to denounce that assumption as one of bad faith. The county superintendent merely erred in his conception of his official powers. His concern about the building up of the little towns like Powhattan was wholly misplaced. His exclusive official concern should be the building up of the little schools and he should let city councils and booster clubs look after the building up of the little towns.
The fact that the school-tax rate in school district No. 80 was higher than in the neighboring districts was not at all remarkable, in view of the difference in their educational facilities.
The alteration of the boundaries of school district No. 40 was not only made without authority but it was undertaken in plain disregard of the statute (R. S. 72-213) which forbids alterations which will reduce the school population to less than fifteen. Defendant suggests that the testimony which was that the school enrollment would be reduced to less than fifteen does not conclusively show that the school population would be thereby reduced below the statutory minimum. We think the evidence made a sufficient prima facie showing to establish that illegality. We do not overlook the point that the same statute provides that restrictions as to school population “shall not prevent desirable changes in school-district boundaries.” If this record shows anything, it shows beyond cavil that the changes in boundaries were the very opposite of desirable to the taxpayers and school-district patrons affected thereby. By “desirable changes” the statute does not mean changes “desirable” to the county superintendent, nor by people who merely desire to lessen their own school taxes however adversely and unjustly the gratification of such desire may operate on others. Doubtless school district No. 80 is to be commended for maintaining a modern school and teaching staff, so long as it can afford it, but defendant was not justified in raiding the territories of four neighboring school districts to enhance the assessed valuation of the Powhattan district to enable it to continue to do so.
This cause was tried on the evidence adduced by the plaintiff, and was disposed of on defendant’s demurrer thereto. In that situation it seems clear that the state was entitled to judgment. By the analogous case of State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 1032, it was held:
“Conduct of an officer which is so oppressive, arbitrary and capricious as to amount to fraud will vitiate his official acts, and courts within their equity jurisdiction have power to relieve against all injuries that would result therefrom.
“In an action involving the validity of the orders of a county superintendent in detaching territory from one rural high-school district and attaching it to another, the proceedings considered, and held, the acts of the superintendent were so arbitrary, capricious and in bad faith as to be tantamount to fraud, and, under the circumstances stated in the opinion, were such that the court was warranted in restraining the unlawful acts of the superintendent without an appeal being first had to the board of county commissioners.” (Syl. If IT 1, 2.)
The judgment is reversed and the cause remanded with instructions to grant a permanent injunction as prayed for in plaintiff’s petition. | [
-12,
-18,
-79,
60,
26,
-96,
59,
-100,
105,
-79,
37,
83,
-19,
89,
5,
121,
19,
61,
21,
120,
-42,
-73,
82,
-127,
-80,
-13,
-39,
-35,
-69,
-36,
-26,
-41,
74,
48,
10,
85,
6,
66,
-59,
-36,
-114,
6,
-85,
70,
-43,
98,
56,
109,
114,
10,
53,
107,
-13,
40,
24,
-61,
64,
44,
-101,
-85,
1,
-13,
-70,
-105,
125,
14,
17,
32,
-98,
-121,
72,
-86,
-104,
51,
-88,
-24,
-33,
-90,
22,
116,
5,
-87,
-120,
-24,
102,
1,
-8,
-17,
-4,
-119,
14,
-13,
-83,
-26,
-106,
88,
98,
12,
-98,
-104,
117,
82,
71,
126,
-25,
4,
27,
124,
-90,
-50,
-28,
51,
-50,
37,
-118,
15,
-13,
49,
48,
81,
-63,
-74,
95,
102,
18,
59,
94,
-100
]
|
The opinion of the court was delivered by
Harvey, J.:
J. A. Barbour, an osteopathic physician, charged with the murder of W. H. Downey, undersheriff of Brown county, at Hiawatha the night of November 9,1933, was tried and found guilty of murder in the second degree. He has appealed and complains, principally, of the refusal of the trial court to give instructions requested, and of the instructions given. Also some complaint is made of the admission in evidence of a dying declaration, and of parts of its contents.
The story of the homicide involves the love affairs of four young people, Doctor Barbour and Mrs. Pearl Davis, a widow, with whom he was keeping company, and W. H. (Bill) Downey and his fiancee, Miss Gertrude Fordyce, and appears to have resulted from gossip respecting Downey, originating with Mrs. Davis and which she poured into the ears of Doctor Barbour, and was by him confided to some of his friends, and a part of which Mrs. Davis mentioned to Miss Fordyce. We may say that under the evidence in this case', jurors well might have concluded there was no substantial foundation in fact for any of these gossipy stories. But, whether true or false, and without regard to what prompted Mrs. Davis to tell them, in either event they were real to Doctor Barbour:
Doctor Barbour was born in Montana; is one of a respected family of nine children; his father was an able, reputable attorney for many years; he was graduated from high school there, and for four years attended the osteopathic school at Kirksville, Mo., completed the course of study there, and in 1924 settled in Hiawatha, and since then has practiced his profession there. He bore a good general reputation both in Montana and in Kansas. He was thirty-four years old at the time of the trial, and never had married. He had kept company to some extent with several of the young women in or near Hiawatha, and among these, for perhaps three years prior to the homicide, with Mrs. Pearl Davis, and exclusively with her since August, 1933. They had learned to think a great deal of each other, had talked of marriage' — possibly were engaged at the time of the homicide.
Mrs. Pearl Davis, thirty-four years of age at the time of the trial, was born in Brown county and, except for two years, had lived there all her life. She married about fifteen years prior to the trial; had a daughter thirteen years of age; had been divorced from her husband six years, and since then had worked four years as a clerk in the office of the probate judge, and since January, 1933, until the homicide, worked as a clerk in the office of the county clerk.
W. H. Downey, who never had married, was thirty-three years of age at the time of his death; was the youngest of a family of seven children, who had lived at Everest, about twenty miles from Hiawatha, in Brown county, for many years. In January, 1931, he became the undersheriff of Brown county and moved to Hiawatha, the county seat. His mother (his father being deceased) lived with and kept house for him. Their home in Hiawatha faced north on Iowa, an east-and-west street, a few blocks from the courthouse. Since coming to Hiawatha he had become acquainted with Miss Gertrude Fordyce, a young woman who has worked, and continues to work, in the office of the Farm Bureau in the courthouse at Hiawatha. They became friends and lovers, came to be much in each other’s company, and were engaged to be married.
At the trial Mrs. Davis testified that about a year and a half prior to the homicide, as she was leaving the office one evening about five o’clock, Downey asked her if she cared to ride home. She said she would, and got into his car with him; that they drove west on the main highway to Fairview, about ten miles; that while returning on a side road Downey attacked her in an effort to have illicit relations with her, but was foiled in his efforts by an approaching car and her threats to get out of the car and report the incident; that soon thereafter she told Doctor Barbour what had occurred, and he said to pay no attention to it, perhaps it would not occur again; that about four months later, as she was leaving the courthouse one day at noon, Downey again asked her if she cared to ride home; she said she would, and got into his car; that they drove out near the Hiawatha Country Club, where Downey solicited her to have illicit relations with him, which she declined. She further testified to two or three occasions, much more recent, when, as she happened to meet Downey about the courthouse, and was friendly towards him, he made some improper remark or statement to her. She further testified that in August, 1933, she went to the sheriff’s office to have the sheriff O. K. a bill; that the sheriff was not in, but Downey was in the smaller of the two rooms of the sheriff’s office; that she went to the door of that room; that Downey jumped and grabbed her and started pushing her toward a corner; that she told him to take his hands off her, and about that time the sheriff walked in. With respect to this incident the sheriff testified this never happened. He remembered the incident of 0. K.’ing the bill; that he came into the office through the- small room; that Downey and Mrs. Davis were not in the small room, but were in the larger office, talking and laughing good-naturedly. It does not appear from the record that Downey ever knew Mrs. Davis charged him with any of the improprieties above mentioned, although it appears she related these stories to Doctor Barbour.
On the evening of November 3, 1933, an incident occurred which, as testified to by Mrs. Davis and as she told it to Doctor Barbour, appears to have inflamed him greatly. She testified that because of an accumulation of work in the county clerk’s office and the fact that she could get extra pay for overtime, she did not quit at the regular closing time but worked on into the evening, and that she was the only one working in the courthouse that evening; that about seven o’clock she heard someone in the hall, went to the door, and saw it was W. H. Downey. He made some remark about her working late, she explained why she was doing so, he remarked that he was going to his office, which was on the next floor, for some papers, and went on; that she began to put her books away to close her work for the evening; that about the time she had done this and was ready to leave the office Downey came from the sheriff’s office; that he grabbed hold of her, pushed her into the dark part of the hallway, and began taking improper liberties with her; that she remonstrated and told him another young woman who worked at the courthouse was to work extra that evening and was to go on duty at seven o’clock and was likely to walk in any minute, whereupon he desisted. With respect to this incident W. H. Downey testified that he went to his office to get some papers to be served that evening; that his brother, Joe Downey, was with him; that as they went upstairs to the floor on which was the county clerk’s office a light in the hall was on and Mrs. Davis was working in the county clerk’s office, the door of which was open; that they exchanged some passing remarks about her working late; that he went on to the sheriff’s office upstairs, got his papers and came down in a few minutes; that Mrs. Davis was then closing her office and asked him to turn out the lights in the hall; he told her he did not know where the switch was, and she went and turned out the lights; that she pretended not to be able to find the steps in the hall, and that he took hold of her arm and assisted her. It appears there were two ways to leave the building. Mrs. Davis went one way, he and Joe the other. He says there was no impropriety or misconduct of any character on his part. Joe Downey testified that he was with W. H. Downey on that occasion and only a few feet separated from him at any time, and that there was no impropriety or misconduct on the part of anyone.
It appears Mrs. Davis told Doctor Barbour something of her version of this incident sometime that night or the next morning. He became quite worried about it and Uncertain as to what he should do, and went to his friend, Doctor Hart, a practicing physician in the city, told him about it, and asked his advice. He appears to have been in Doctor Hart’s office, which was across the street from the courthouse, when W. H. Downey and Gertrude Fordyce came from the courthouse at noon to go to his car. Barbour left Doctor Hart’s office, walked across the street to where they were getting into the car, and, as he testified, said: “Downey, I have something I want to say to you, and I want Gertrude to hear it.” Miss Fordyce had gotten into the car and Downey was walking around to get in from the other side, they walked up to the car so she could hear, and Barbour said:
“Mr. Downey, how far did you get roughing Pearl up in the courthouse last night about seven o’clock? Mr. Downey says, ‘Nothing like that happened.’ I says, ‘Mr. Downey, do you mean to tell me that you were not alone with Pearl Davis up in the courthouse last night?’ He says, ‘No.’ I says, ‘All right, Gertrude is here and you are here, and it isn’t quite twelve o’clock yet, and Pearl is up in her office. Let’s go up there and talk with Pearl, get this straightened out’; and he says, ‘No’; he says, T don’t want any more to do with the likes of you.’ Those were his exact words, and he slammed the door.”
Doctor Barbour said he turned and walked away, and when he got to the curb he heard footsteps behind him; he turned and saw Downey coming toward him, and that Downey said, “Are you looking for trouble?”; that he replied, “No, sir, I came over here to try to get you to leave Pearl alone.” With respect to this incident Downey testified: “Doctor Barbour came out and said: ‘I want to talk to you and I want Gertrude to hear this,’ and he said I was petting and loving Pearl; and I said, ‘No, I wasn’t, Doc, no such tiring,’ and I tried to tell,him just what took place.” With respect to it Miss Fordyce testified that Doctor Barbour came up to the car and said: “Downey, I want to talk to you. ... I want to say this so Gertie can hear it.” Then he said: “What is that about your trying to pet Pearl Davis?” That Downey replied: “I don’t know what you are talking about”; that Doctor Barbour said: “Pearl Davis tells me that you have been trying to pet her”; that Downey replied, “I don’t know when it was”; that Doctor Barbour asked him if he wasn’t up in the courthouse last night, and Downey replied, “Why, yes, I was up- there and I walked down the stairs with Pearl Davis”; that Doctor Barbour then turned to Miss Fordyce and said, “Gertie, here, has been saying some things about me and I want her to know how you have been acting”; that Doctor Barbour appeared angry, was trembling and shaking all over; that Downey said to him, “What is the matter, Barbour, are you trying to make trouble?” and Doctor Barbour replied, “No, the trouble with you is that I can go with Pearl Davis and you can’t”; that Downey replied, “All I can say is who I go with and what I do isn’t any of your business”; that Doctor Barbour then walked away and Downey got into the car and they drove away.
Within two or three days after this incident it appears Mrs. Davis told Miss Fordyce that Downey on some occasion at the courthouse had solicited or had attempted to have improper relations with her. This disturbed Miss Fordyce and she talked to Downey about it. .He discussed the matter with her, and apparently was able to convince her there was no foundation for such a charge. About five o’clock the evening of November 9, as Downey was leaving the courthouse, he met Mrs. Davis, and as he testified, said:
“Pearl, I don’t appreciate what trouble you tried to cause me. I said, ‘I think that was a low, mean trick,’ and she said, ‘Well, that’s that,’ and I said, ‘What’s that?’ or something, and she says, ‘Well, I don’t know anything about,’ and I said, ‘Pearl, the only trouble with you is you want to make that fellow think you are very popular; nobody bothered you,’ and I said, ‘You lie, it was nothing but a lie, and you lied.’ ”
About that time Gertrude came up and she and Mrs. Davis had some words, but Downey walked away.
With respect to this incident Mrs. Davis testified:
“He (Downey) said: ‘Pearl, I appreciate the way you told Doctor Barbour what I did the other night.’ I never answered him. I went on down on the east side of the stairs and he went around the other way, and he was talking all of the time. I didn’t understand what he said when he went around the other side; there on the stairway going down to the first floor he said: ‘You tell Doctor Barbour to come over and tell Gertrude that I tried to make you the other night.’ I said: ‘He don’t have to come over and tell Gertrude, I can tell her that myself,’ and he says, ‘You are a dirty damn liar,’ and walked in the Farm Bureau office.”
After supper on the evening of November 9, W. H. Downey drove to Everest to serve some papers, and after doing so played pool with his friends for about an hour and drove back home, reaching there about midnight. His mother had not retired, although she had been lying down part of the time on the day bed. They visited a few minutes, he had taken off his coat- and his pistol and the ■holster in which he carried it, had unlaced his shoes and started up stairs to bed when someone knocked at the door. It was Doctor Barbour.
That evening, after eight o’clock, Roy Shelley, who conducts a cleaning business at Hiawatha, went to Doctor Barbour’s office for a treatment. The doctor said he would not have time to give the treatment as he had an appointment to go riding with Mrs. Davis at nine o’clock and was to meet her on the street south of the courthouse. Shelley was invited to go with them, and did so. The three started riding about nine o’clock in Doctor Barbour’s coupé, equipped with a radio and a heater. The one seat was wide enough to accommodate all of them. Doctor Barbour drove; Mrs. Davis rode in the center. They stopped at a place where they got some beer (near-beer), three bottles of which they “spiked” with alcohol which the doctor had with him in a bottle. They drove out a few miles from town, stopped for awhile on a side road, came back to town, and drove through various streets about the city, perhaps to the country again, and back. At some time in the evening, as they drove by the doctor’s office, he got out of the car and went to his office. Perhaps Shelley did so a little later. They stopped at another place and got more beer about eleven o’clock, or later. They drank as many as nine bottles of beer that evening; whether this count includes the last purchase is not clear. Several times in the course of the evening they drove by the Downey home on Iowa street. At some time during the evening Mrs. Davis told Doctor Barbour of her conversation with Downey and of- what he said to her about five o’clock that evening. About midnight they drove by the Downey home and observed Downey’s car in the yard, where he usually left it when he was at home. They then were traveling west. At the end of the block they turned around and drove back and stopped in front of the Downey home, the car facing east near the curb on the south side of the street. The car lights were left burning. There is a controversy in the evidence as to whether the engine was left running. The street lights on that street had been turned off at twelve o’clock; it was a few minutes after that time. Doctor Barbour got out of thé car and went to the door of the Downey residence and knocked. This was just as Downey was starting to bed. What took place within the next few minutes perhaps best can be told by summarizing the testimony of the witnesses present.
W. H. Downey testified: “It was after midnight, the lights had just gone out, Doctor Barbour said: ‘Come out here, I want to see you.’ I said: ‘O. K., big boy,’ and went out. I did not have my coat or gun on; he cursed me something awful. I said: ‘Doc, we are durned fools; now you get on away; you are foolish.’ He just got abusive; he was drunk. I said: ‘I want you to go away . . . Doc; if you don’t go away I will place you under arrest, and put a charge of drunkenness against you.’ He said: ‘You just try it; you can’t arrest me; just try it, you son of a bitch.’ ” They walked on out to the car. “I said: ‘Pearl, why don’t you tell Doc the whole truth of this thing; it’s all a bunch of foolishness.’ I don’t remember what answer she made. I said: ‘We are all just fools. . . . I don’t want any trouble with you, and at the same time I’m not afraid of you;’ then he lit in and cursed Gertrude, called her all kinds of dirty names, ‘damned low morally,’ and stuff like that. I knocked him down then. He got up and shot me; he had the gun in his pocket; he did not reach in the side door of the car and get the gun out of the car. I just hit him once; I knocked him down; he was just like a child; didn’t know how to fight; fell like a ton of brick, and laid there a little bit, slipped his hand in his'pocket and shot me. The other man in the car said: ‘Don’t, don’t do that, Doc; Doc, don’t do that,’ just before the shot was fired.' He was not lying down when he shot; he had come up; he shot from a horizontal position; I spun on it; I saw the gun in his hand; it was too late; I was about three feet from him when he fired; he was cursing just before he shot. After he fired the shot I turned and went toward the house. He got in the car and drove away.”
Roy Shelley testified: “Doctor Barbour went to the door; Downey came out; they walked toward the car; they had some conversation. I paid no attention to the conversation between them; heard Downey say something to Doctor Barbour about putting him under arrest if he didn’t leave. Doctor Barbour said: ‘Your girl friend has been (not distinguishable).’ Downey said: ‘Don’t talk about her or I’ll . . . (not distinguishable).’ I said: ‘Come on, Doc, and let’s get out of here,’ or something like that. Doctor said: ‘I’m ndt afraid of you,’ or something like that. Downey said: ‘I am not a-scared of you, either; I want you to know that.’ The doctor made no replies. Downey struck Doctor a second time; I would not say that it knocked him down, but it staggered him. Doctor was standing near the big tree when he shot. Downey was four or five feet away. I had started to get out of the car and was on the running board, or near it on the ground, when the shot was fired. ‘I did not see Doc draw the gun; did not see him get the gun out of the pocket of the car door. A short time before that I had occasion to feel in the pocket of the car door, and did not feel a gun in there at that time. I saw no gun on Downey, and he displayed none. After the shot was fired Downey walked toward the house. He said: ‘I am shot.’ His mother came out to meet him. Doctor Barbour walked and got in his car. After the car was started Mrs. Davis said to Doctor Barbour: ‘Did you shoot him?’ or .something to that effect. Doctor Barbour replied: T guess so,’ or ‘I think so.’ ”
Mrs. Pearl Davis testified: When they stopped in front of the Downey home the engine was turned off, the lights on the car were left burning. Doctor Barbour got out, walked around in front of the car, to the door of Downey’s residence; I could not hear what was said by Doctor Barbour and Downey as they walked from the house to the car. When they reached the car Doctor Barbour opened the car door and said: “Pearl is here, let’s all of us talk it over”; that Downey, standing on the parking, which is higher than the pavement, stooped over, looked into the car, and said: “Pearl is telling a damned dirty lie.” Doctor Barbour said: “Downey, you and Gertrude . . .” and I said: “Oh, Doc, come on.” Doctor Barbour turned his head and looked into the car; Downey said: “You yellow son-of-a-bitch, I will kill you,” and struck Doctor Barbour, who was then standing at the outward side of the open car door. Doctor Barbour sort of slumped down on his knees to the ground; Doctor Barbour was pulling himself up by the car door, which He was holding onto, when Downey struck him a second time. Doctor Barbour almost fell again, was trying to get up, and a blow hit him on the neck or back some place and he almost fell on his hands over into the door; and “I saw his hand come out of the pocket with the gun.” He put his hand up, “and just as Downey socked him another blow the gun went off.” Downey then grabbed his stomach and said: “I am shot,” and started for the house. Doctor Barbour came around the front of the car, “sort of staggered, around the car and held onto the fender”; she opened the left car door; he got in, but had difficulty finding the starter, and first put the car in reverse, instead of forward, but finally got started.
Doctor Barbour testified that after he parked his car in front of the Downey residence he got out of the car and went to the door and rapped; that Mr. Downey came to the door. “I asked him if he wanted to see me, wanted to talk to me.” He said, “No,” and I says, “Pearl is out in the car; will you come out and talk to her?” I don’t recall he said anything; he just came off of the porch there and started for the car. When he came down off the porch I said: “Mr. Downey, you got on to Pearl, insulted Pearl, tonight, called her names in the courthouse at five o’clock. Now,” I says, “Mr. Downey, you have been in trouble around here two or three other times before this,” and I said, “Now if you do this again Pearl and I are going to Mr. Mellenbruch” (the sheriff), and by that time we had reached the car. I told him if we took the matter up with Mr. Mellenbruch, and everyone knew it, it might cost him his job. He didn’t- say a word. I opened the car door so he could see Pearl and so they could talk. Isays: “Mr. Downey, there is Pearl. Let’s all talk this over and not have any more misunderstanding about this.” Downey says: “Why Pearl is telling a God-damned dirty lie.” I says: “Downey, you and Gertrude,”— and that is as far as I got — and Mrs. Davis yelled at me. She says: “Come on, Doc,” and I glanced in the car at her. I remember Downey saying: “I will kill you, you yellow son of a bitch,” and the last recollection I have was when I heard the sentence. I just turned my head to look at him and heard that threat. Just as I turned my head there was a feeling of sinking came over me. He struck me and I sank to my knees and remember struggling to get up, and I got another blow on the right side .of my face, and that is really the last clear recollection I have. When I got that blow on the right side of my head I remember trying to struggle to my feet. I remember having hold of the door. . . . Things were hazy. I received that blow on my jaw, right here in my mouth, and I remember the sinking feeling that came over me. I remember of sinking to my feet and getting up; got hold of the car door; struggled to get up, and got another blow on the side of my face, and really that is the last clear recollection I have. The thing that brought me to was the flash of the gun, or the report of the gun. I don’t have any clear recollection of even getting into the car.
Mrs. Downey testified someone came to the door and knocked; her son Bill went to the door and opened it; the caller said: “I want to see you.” She did not know what reply Bill made, if any, but he went out, leaving the door open; she went to close it, and while doing so heard Bill say: “If you came here looking for trouble I will have to put you under arrest.” The. next thing she heard was the report of the gun, the shot, and Bill said: “I am shot.” She went to him; the man was running around the car; the car lights were on, the engine was running, the car drove away. She helped Bill into the house and had him lie down on the day bed and called a doctor, who came promptly; she also called Miss Fordyce, who came with a girl friend.
The doctor recognized Downey’s injury to be serious, called an ambulance and took him to a hospital at Sabetha, where he was operated upon about 2:30 o’clock that morning. This operation disclosed the bullet entered from the front, about five inches above and an inch to the right of the navel, had taken a downward course, and had come out just above the hip bone on the left side, and in its course had passed through the stomach and the colon. Although he received good care, peritonitis developed and on the morning of November 16 W. H. Downey died as the result of the gunshot wound inflicted by Doctor Barbour.
Directly after the shooting Doctor Barbour got into his car, drove by his office, where he left his pistol, and drove to the home of the county att.orney. Somewhere en route Shelley got out of the car and went home. Mrs. Davis continued with him. They reached the county attorney’s home at 12:30 o’clock. Doctor Barbour went to the door and knocked and told the county attorney that he was in trouble; that he had shot Bill Downey, or thought he had shot him; that he thought Downey had been trying to pet Pearl Davis; that he had gone to Downey’s home and called him out; that they had an argument about it, and that Downey had struck him in the mouth, and that he had then gone to his car, got his pistol and fired the shot. The county attorney called the sheriff, and also called his stenographer to come to his office. The sheriff picked up a newspaper man, Mr. Hill, and all of them went to the county attorney’s office in the courthouse, and Shelley was sent for. A statement was taken from Shelley, perhaps also from Mrs. Davis, and Doctor Barbour. The sheriff asked Doctor Barbour who shot Downey, and the doctor replied, “I did.” In explanation of the matter Doctor Barbour stated that Downey had been showing improper attentions to Pearl Davis and that he went down there that night “to have it out with him.” That expression appears to have been used several times by Doctor Barbour that evening in explanation of why he went to Downey’s residence and called him out. At no time that evening did Doctor Barbour speak of being struck more than once by Downey. Answering inquiries, Doctor Barbour told the sheriff that he had left the pistol at his office, and went with the sheriff to get it.
The statement of W. H. Downey, read in evidence at the trial, was obtained in this manner: Sometime in the day of November 10 the county attorney took his stenographer and went to see Downey at the hospital, and took his statement in the form of questions and answers. Later the stenographer transcribed her notes, and on November 12 took the transcript to Downey, had him read it, and called his attention to a few words she was not sure about. He read the statement, said it was correct, and signed it. Near midnight on the evening of November 15, when peritonitis had developed so that there was no hope for his recovery, and Downey knew and realized that, and so stated not only to his doctor but to his mother and an aunt, who had come to see him, to Miss Fordyce and to his priest, he sent for his attorney, Mr. Pearl, and discussed with him his business matters in considerable detail; called his attention to an insurance policy which paid double indemnity for accidental death; told about how he wanted his mother provided for; stated that he realized he could live but a few hours. At the suggestion of Mr. Pearl he examined the statement he previously had made, said it was correct, and that he desired to make it as his dying statement. There was then written upon it: “In face of impending death, and aware of the fact that-I am fatally ill, I hereby confirm all of the above and foregoing statements. November 15, 1933, midnight”; and this he signed in the "presence of witnesses. He died about nine o’clock the next morning.
Turning to the legal questions argued. There is a general objection to the admission of this statement as a dying declaration, but it is clear from the evidence, the substance only of which has been stated, that Downey knew he could not live and confirmed the statement in the face of his impending doom. There was a sufficient showing on this point to make the statement admissible as a dying declaration. (State v. Smith, 103 Kan. 148, 174 Pac. 551; Shepard v. United States, 290 U. S. 96.) The fact that it was not originally made as a dying declaration did not prevent it from being one, when reaffirmed, or confirmed, as such, at a time when declarant was conscious he was dying, (1 R. C. L. 543; 30 C. J. 259, 260; 1 Wharton’s Criminal Evidence [11th ed.] § 534.) Some of the questions and answers normally would not be proper in a dying declaration. Some complaint is made with respect to them. Appellant is not in position to complain on this point for the reason that objections were not made thereto. Defendant’s objection to the first question and answer was sustained. The court was then handed a copy of the statement with the agreement of counsel that defendant would make objections to such questions as he desired and the court would rule upon them. Counsel for defendant stated perhaps there would not be many other objections. There were in fact none. Perhaps that was because the answers to some of the questions were regarded by defendant as being favorable to him. At any rate, no error was committed by the trial court in this matter.
The real defense in this case was that defendant discharged this gun unconsciously and without intent to do so. In support of this he produced evidence that since the Thompson-McGary case (see facts stated in State v. Thompson, 139 Kan. 59, 29 P. 2d 1101), which occurred in that county about eighteen months prior to the homicide in this case, defendant had carried a pistol in the pocket of his car to protect himself in case of attack; that he was struck by Downey not only once, but several times, and that he was dazed and rendered semiconscious to the extent that he did not know that he had taken the gun from the pocket of his car and had fired until the flash and noise of the shot partially brought him to himself. Defendant produced expert evidence to the effect that if he carried a pistol to protect himself, and was attacked and beaten to the extent that he was dazed and rendered unconscious, but was still able to move, the fact that in his deeper subconscious mind he thought he might be attacked and had planned in such a case to use the pistol in defense, might cause him to take the pistol out of the pocket of the car and fire it without being conscious that he was doing so. On this point the court’s instructions were to the effect that if defendant was so injured by the blows of Downey that he did not know what he was doing when he fired the shot he would not be guilty. No complaint is made here of these instructions. Apparently the jury did not take that view of the evidence. ’
Another defense relied upon was that of self-defense. In this connection the defendant requested two instructions, as follows:
“1. In view of what the court has instructed the jury concerning provoking the difficulty, the court further instructs you that if the defendant’s purpose in going to the home of deceased at the time and place and under all the circumstances was in good faith to ask the deceased to stop his attentions to Pearl Davis, and if he did nothing more than to speak peaceably and inoffensively to deceased and did not address deceased for the purpose of provoking assault upon him, the defendant, by the deceased, in order that he might have excuse for killing or assaulting deceased then his right of self-defense would not be abridged and he could not be said to have provoked the difficulty.
“2. However, if the purpose of the defendant in going to the home of the deceased was to attack him, or to provoke him to make an assault upon the defendant so that the defendant might find an excuse to slay him or assault him, then his right of self-defense would be abridged and he would be compelled to retreat to the wall and make known his intention to abandon the conflict before he would be justified to slay his assailant to prevent great bodily injury being done to himself.”
The court did not give the instructions in the language set out, but did instruct the jury fully on the law of self-defense and the right or duty of one who provokes an assault. The instructions are too lengthy to set out in full. We think it was not error for the court to refuse the instructions in the language requested. There is no evidence in this case about “retreating to the wall.” On behalf of the prosecution the evidence was that Downey struck defendant once and knocked him down; that he got up, took a pistol from his pocket, and shot. On the other hand, the testimony was that Downey struck defendant several times, dazed him, rendered him unconscious, or semiconscious, and being near the car door he took the pistol from the pocket of the car and fired it without knowing that he had done so, nor intending to do so. The instructions given covered the facts in this case more accurately than those requested and refused, and fully protected the rights of defendant.
The court instructed the jury with respect to first and second degree murder and with respect to each of the four degrees of manslaughter defined by our statute. Appellant complains that the court did not instruct the jury as to the crime of voluntary manslaughter under the common law. There are three answers to this: (1) In this state manslaughter is defined by statute. The common-law divisions of voluntary and involuntary manslaughter are not recognized. (2) The jury found defendant guilty of murder in the second degree. Since he was not guilty of manslaughter, errors in the instructions with respect to that offense are not important, even if they were made. (3) There was no error in the instruction as given.
A number of minor objections are made to instructions. Most of these were not complained about in the court below. We have examined each of them, however, and find nothing substantial in them.
At the request of the county attorney the court gave an instruction as follows:
“You are instructed that it is against the laws of the state of Kansas for one not an officer of the law or a deputy under such officer, to carry on his person in a concealed manner a pistol or any other deadly weapon.”
This instruction should not have been requested nor given unless there was contained within it a statement to the effect that defendant was not on trial for carrying concealed weapons in violation of law, and that the jury could consider that fact, if they found it to be a fact, only for the purpose of determining the intent of defendant, as was done in State v. Post, 139 Kan. 345, 30 P. 2d 1089. However, defendant did not object to this instruction when it was given, nor ask that its wording be modified, nor did he at any time in the trial court contend that the giving of the instruction was erroneous.. Even in the motion and supplemental motion for a new trial, in which certain specific instructions were objected to, this one was not mentioned. Appellant now contends that under the authority of State v. Hartsock, 140 Kan. 428, 37 P. 2d 36, the decision of the trial court must be reversed. With this we cannot agree. In that case the point was raised in the trial court, which was not done here. Again, in that case the question of carrying the concealed weapon was one of the points strenuously argued and urged upon the jury. Here we are told the matter never was argued or referred to, otherwise than in the instruction given, and this is not controverted. Under the facts in this case the instruction could not have had much weight one way or the other. We therefore hold the instruction given was harmless error, and, further, the point not having been raised in the court below is not available to appellant here.
Finally appellant complains of the closing argument of counsel for the prosecution, too lengthy to repeat here. Counsel endeavored to impress the jury with its responsibility as distinct from that of the responsibility of the court or of counsel. The argument on the point may be characterized as forceful, but we see nothing unfair in it. It forms no ground for reversal.
We have taken care to examine not only the printed abstracts and briefs, but the transcript of the testimony, and are convinced that defendant had a fair trial and that there was a just result.
The judgment of the court below is affirmed. | [
-80,
104,
-3,
-33,
42,
102,
-86,
-38,
118,
-93,
-79,
123,
-87,
-39,
5,
105,
42,
45,
84,
105,
-74,
-105,
31,
-127,
-70,
-45,
123,
-121,
-77,
-20,
-76,
-3,
77,
32,
10,
-99,
-26,
74,
-59,
92,
-126,
6,
-87,
-48,
-38,
-48,
48,
61,
52,
10,
85,
14,
-21,
106,
28,
-29,
104,
58,
90,
-84,
48,
-79,
40,
-107,
-51,
52,
-109,
34,
-104,
5,
-8,
60,
-104,
53,
64,
-4,
115,
-122,
6,
-12,
77,
-103,
12,
118,
35,
33,
29,
-83,
-96,
-87,
63,
46,
-99,
-89,
24,
9,
96,
-115,
-98,
-103,
118,
112,
-121,
120,
-9,
95,
93,
100,
8,
-113,
-74,
-79,
-49,
56,
-104,
30,
-5,
69,
32,
112,
-123,
98,
109,
69,
120,
27,
-97,
-76
]
|
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a fire insurance policy.
One Yohn mortgaged certain real estate and in connection therewith procured a policy of insurance for $1,300 covering a house on the mortgaged premises, from the Republic Mutual Fire Insurance Company, hereafter called the appellant. Later he made a larger mortgage to a different mortgagee and paid off the first mortgage. A new mortgage clause was attached to the policy and it was delivered to the mortgagee, which assigned the mortgage and delivered the insurance policy to the Equitable Life Assurance Society, hereafter called the mortgagee. Later Yohn sold the real estate to the plaintiff. She was unaware of the policy in appellant company and procured some additional insurance. The house burned. The appellant refused payment and this action followed.
It is not necessary to detail the pleadings. The policy in question provided that if the insured procured other insurance without the company’s consent the policy became void. The mortgage clause attached, among other things, provided:
“On payment to such mortgagee (or trustee) of any sum for loss or damage hereunder, if this company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee’s (or trustee’s) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee’s (or trustee’s) right to sue; or it 'may pay the mortgage debt and require an assignment thereof and of the mortgage.”
Appellant in its answer alleged thé procuring of additional insurance by the plaintiff voided the policy as to her, and admitted liability to the mortgagee under the mortgage clause and claimed subrogation pro rata thereunder. The case was tried by a jury, which found against plaintiff. Later the court received further evidence and from the record made certain findings of fact which are not in dispute. The journal entry of judgment recites:
“Now, therefore, on this 1st day of December, 1932, it is by the court ordered, adjudged and decreed that the plaintiff recover nothing herein, and that the defendants have judgment for the costs of this action against the plaintiff.
“It is further ordered, adjudged and de'creed by the court that the defendant, the Republic Mutual Fire Insurance Company, shall, upon making payment to the defendant, the Equitable Life Assurance Society of the United States, of the sum of $1,300, be subrogated to that extent under the mortgage held by said last-named defendant upon the real estate described in the policy of insurance sued upon in this action, to wit: The north one-half (N Vs) of section 11, in township 1 south, of range 8 west, in Jewell county, Kansas, in the manner and upon the terms and conditions specified in the mortgage clause attached to said policy of insurance and as set forth in the pleadings herein.
“It is further ordered and decreed that the court shall and does retain jurisdiction in this action for the sole and only purpose of settling and determining questions of dispute that may arise relating to the subrogation herein decreed, as between or among parties having an interest in or who are affected by such order of subrogation.
“For all of which, let execution issue.”
No appeal was taken by the plaintiff.
It appears from the record that the appellant and the mortgagee were thereafter unable to agree as to the extent of the subrogation to which appellant was entitled; that is, whether the lien of the appellant was coordinate with that of the mortgagee or inferior to it, and on October 26, 1933, the mortgagee filed a cross petition for a decree to determine the question. On November 2, 1933, the appellant filed an answer claiming equal pro rata' rights in the lien of the mortgage. On February 2, 1934, over objection of appellant, the plaintiff was permitted to file an answer in effect denying the right of appellant to subrogation. A hearing was had and resulted in a judgment in favor of the mortgagee and against the appellant for $1,300 and interest, and that plaintiff and the mortgagee were entitled to have the amount of the judgment, when paid, applied as a credit upon the note and mortgage, and denied to appellant any right of subrogation in and to the lien of the mortgage and any right, interest or lien upon the mortgaged real estate. The appellant’s motion for a new trial was denied, and it brings the case here for review.
Although a number of errors are specified, they are presented as two questions:
First: Can an insured whose policy has been held void, and who has been denied recovery thereon, from which judgment no appeal is taken, later be entitled to credit on the mortgage for an amount which the insurance company must'pay the mortgagee by reason of a mortgage clause attached to the insurance policy? And,
Second: Under such mortgage clause is the insurance company, to the extent of its payment, entitled to be subrogated to the mortgagee’s right of recovery _ on a coordinate basis, or does such right of subrogation contemplate a recovery inferior to the mortgagee’s right to recover in full the balance of the debt due it from the mortgagor after crediting the amount of insurance paid?
It may be observed that the answer to the second question is in the nature of a declaratory judgment, for no proceedings to foreclose the mortgage have been instituted.
The first question must be answered in the negative for two reasons: When the trial court, on December 1, 1932, rendered judgment that the plaintiff take nothing by her action, and that the appellant, upon paying the insurance moneys to the mortgagee, be subrogated to that extent under the mortgage in the manner specified in the mortgage clause, and retained jurisdiction for “the sole and only purpose of settling and determining questions of dispute that may arise relating to the subrogation,” etc., it was a final order and a complete judgment, so far as plaintiff was concerned, that she was not entitled to anything, and that appellant was entitled to subrogation. The only question reserved was the rights between the appellant and the mortgagee, and in those rights plaintiff is not interested. If she were not satisfied with the judgment she should have appealed; that she did not do, and the trial court had no power after that term expired to do anything further with respect to her claims or to invoke any other order the effect of which would be to permit a recovery on her part. But had she appealed the same result as to her would have been reached. On December 1, 1932, the trial court properly held in effect in accordance with the jury’s answers to special questions that the by-laws of the insurance company provided the taking out of additional insurance without the company’s consent would render the policy void, and that such additional insurance having been taken by plaintiff without such consent, the policy was void as to the insured. (See Pettijohn v. Insurance Co., 100 Kan. 482, 164 Pac. 1096; Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402.)
To answer the second question requires consideration of the doctrine of subrogation as applied to the facts. In treating of the general subject, it is said in 8 Couch on Insurance, § 1996, p. 6589:
“It also is of interest that for the purpose of defining the word ‘subrogation’ two kinds are recognized, namely, ‘legal’ and ‘conventional.’ These terms have been defined as follows: ‘Legal subrogation is allowed only in cases where the person advancing money to pay the debt of the third person stands in the situation of a surety, or is compelled to pay the debt to protect his own rights. Conventional subrogation results from an agreement,' made either with the debtor or the creditor, that the person shall be substituted.’ In other words, ‘legal subrogation’ arises by operation of law as the result of equities, whereas ‘conventional subrogation’ depends upon a lawful contract calling for subrogation.”
In this state, in accord with the weight of authority, it has been held that the provisions of a mortgage clause attached to a fire in surance policy constitute a contract between the insurance company and the mortgagee. (Stamey v. Assurance Co., 93 Kan. 707, 150 Pac. 227; Motor Co. v. Indemnity Co., 116 Kan. 109, 115, 225 Pac. 1056.)
Here we have a mortgage clause providing for subrogation, hence the matter for consideration comes under conventional rather than legal subrogation and is to be treated as a matter of contract rather than of equity. To determine whether the right of subrogation was intended to confer on the company a pro rata right of recovery fully equal to that of the mortgagee, or a pro rata right of recovery inferior and subordinate to the right of the mortgagee to be paid in full is therefore to be determined from the mortgage clause. The precise question has not heretofore received consideration in this court, and little authority from other states is cited in the briefs or disclosed by our own search.
It has been held that the general rule for the interpretation of an insurance contract is that if the terms thereof are open to more than one construction that one which is more favorable to the insured must prevail (Tripp v. United States Fire Ins. Co., 141 Kan. 897, 44 P. 2d 236, and cases cited), although that rule does not ordinarily apply to mutual insurance companies (Rickel v. Republic Mutual Fire Ins. Co., 129 Kan. 332, 282 Pac. 757). The theory on which the qualification is based is that in a mutual company the person taking insurance must become a member of the company, and in a sense is both insured and insurer. (Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214.) Whether the qualification should be applied in construction of a mortgage clause issued for the benefit of one who does not become a member of the company presents a situation where the reason for the qualification no longer exists, and it would appear the general rule should apply as between the company and the mortgagee.
It is of interest to note that mortgage clauses of various kinds have been used. Some provide simply for payment of the loss to the mortgagee without provision for subrogation. In such a situation this court held that where the insured had no right to enforce payment because of contract provisions, and the company was liable to and had paid under a mortgage clause to the mortgagee, it was entitled to the rights of the mortgagee under the mortgage. (Bank v. Insurance Co., 104 Kan. 278, 178 Pac. 413.) Another form provides that no subrogation shall impair the right of the mortgagee to recover the full amount of its claim. (Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., supra.) A third form provides that the subrogation shall be in subordination to the claim of the mortgagee for the balance of the debt. (Loan Association v. Insurance Co., 74 Kan. 272, 86 Pac. 142.)
The present mortgage clause provides that the company shall—
“To the extent of such payment be subrogated to the mortgagee’s (or trustee’s) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee’s (or trustee’s) right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage.”
Substantially identical provisions were included in the mortgage clauses under consideration in the following cases: Wagner v. Peters, 142 Va. 412, 128 S. E. 445; Imperial Assur. Co. v. Livingston, 49 F. 2d 745; British American Assur. Co. v. Mid-Continent Life Ins. Co. (Tex.), 37 S. W. 2d 742, and National Ben Franklin Fire Ins. Co. v. The Praetorians (Tex.), 67 S. W. 2d 333. In the first two cases mentioned the question of priority as between the mortgagee and the insurer was not in issue. In the Mid-Continent Life Insurance Company case, suit was brought by it to recover on policies in two different companies, and in the trial court it was allowed recovery on both policies. The court of civil appeals (21 S. W. 2d 1106) reversed as to one company, but affirmed as to the present appellant. The commission of appeals considered, not the question of priorities, but of liability on the policy and whether or not the insurance company was entitled to be subrogated. In the opinion judgment was ordered in favor of the mortgagee against the insurance company, which was given a lien for the amount of judgment against it, and foreclosure was ordered, subject to the mortgagee’s lien. The effect was to allow subrogation pro rata but to subordinate the right of recovery of the insurance company to that of the mortgagee. In the Praetorian case the insurance company had paid the mortgagee on loss a sum less than the debt due it. After foreclosure by the mortgagee and purchase of the real estate for a sum less than the balance due it, the insurance company brought its action alleging it was subrogated to the mortgagee’s right pro rata and entitled to foreclosure, or in the alternative to be decreed pro rata owner in the property. The mortgagee defended on the ground the insurance company was not entitled to enforce the subrogation clause to its detriment nor until it had collected its entire debt. On appeal both of the mortgagee’s contentions were sustained, though it seems the decision is based primarily on the proposition that the insurance company is not entitled to subrogation if any part of the debt remains unpaid unless it tender to the mortgagee the balance due.
It may be conceded that the first part of the mortgage clause paragraph under consideration provides in effect that to the extent of its payment the insurance company shall be subrogated to the right of recovery of the mortgagee, and that, without more, the subrogation would be to prorate the right of recovery on an equal basis between them, neither’s right to be superior to the other’s, but there is further language used. What force is to be given to the words “but without impairing the mortgagee’s (or trustee’s) right to sue”? Appellant says that it permits the mortgagee to hold the securities in its name, and as trustee for the subrogee to collect, by suit if necessary, and to account, and that the cause of action may not be split up. It may be said, however, that if the provision as to subrogation makes the mortgagee trustee for the subrogee to a pro rata extent, then under the code (R. S. 60-403) the trustee could bring the action and the words would be superfluous.
One of the definitions of “sue” is “to commence or to continue legal proceedings for the recovery of a right.” (Bouvier’s Law Diet., 3d ed.) Another is “to proceed with, as an action, and follow it up to its proper termination; to gain by legal process.” (Webster’s Int. Diet., 2d ed.) It would appear that the phrase, in its relation to the context, is somewhat ambiguous, and that what it might well be held to mean is: “but without impairing the mortgagee’s right to recover.” And can it be said that it should be interpreted otherwise? The purpose of the issuance of the policy was not to give the insurance company a right to recoup itself for any loss it might be compelled to pay. It was the purpose of that corporation to collect from policyholders enough premiums in the aggregate to pay the losses sustained by a few, and viewed from one angle it was only a fortuitous circumstance that the insured, by taking out additional insurance, relieved the company of an absolute liability where it would have had no right of subrogation whatever. If it was the company’s contention that if the policy was void as to the insured, but good as to the mortgagee, it should have rights of subrogation to the extent of its payment to the mortgagee, equal and coordinate with the rights of the mortgagee, it could have' so provided by language appropriate to that end and free from doubt as to its purpose. We are of opinion that the quoted paragraph of the mortgage clause did not confer on the insurance company a pro rata right of subrogation to the lien of the mortgage of equal quality with the lien of 'the mortgagee, but did confer a pro rata right of subrogation subject to the lien of the mortgagee and its right to collect in full the balance of the mortgage debt due it.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment in favor of the appellee life insurance company and against the appellant fire insurance company for the sum of $1,300 with interest at six percent per annum from December 1, 1932, and that appellant, upon payment of the sum of $1,300 be subrogated to the lien of the mortgage to the extent that such amount bears to the amount due on the mortgage on December 1, 1932, but subject to the lien of the mortgagee and its right to collect in full the balance due it. | [
-16,
120,
-40,
-82,
72,
96,
56,
-38,
87,
-96,
-89,
-41,
-5,
-49,
32,
45,
-58,
105,
-64,
106,
-105,
-93,
55,
10,
-42,
-101,
-45,
-59,
-71,
-17,
-12,
-17,
76,
48,
-62,
-43,
-26,
-118,
-63,
20,
74,
-123,
-88,
-27,
-39,
72,
52,
91,
112,
11,
65,
-117,
-93,
40,
21,
-49,
13,
41,
123,
57,
-16,
-72,
-117,
-123,
123,
3,
49,
37,
-100,
33,
-8,
2,
-112,
53,
0,
-56,
115,
-90,
-106,
60,
71,
-103,
0,
102,
102,
16,
101,
-17,
-24,
-119,
47,
78,
-81,
-82,
-110,
88,
-117,
8,
-66,
-99,
100,
18,
7,
116,
-28,
-107,
93,
108,
25,
-117,
-108,
-13,
-19,
124,
-104,
-117,
-58,
19,
36,
84,
-113,
-96,
92,
71,
127,
-109,
14,
-51
]
|
The opinion of the court was delivered by
Thiele, J.:
This was an action in the nature of quo warranto to determine who are the duly elected directors of The Wheat Belt Building and Loan Association of Pratt.
The facts necessary for an understanding of the issues are summarized from the trial court’s findings: The association was organized in 1919.- The by-laws provided for an annual stockholders’ meeting on the second Monday in January, and for a special meeting on call of forty percent of the permanent stock. The board of directors was composed of eight members, who held office for a term of two years and until their successors were elected and qualified. Four were to be elected each year. At the annual meeting in January, 1934, four directors, Gebhart, Woolwine, Milne and Cramer, were elected or reelected. The other directors who held on were Barker, Cochran, Harkrader and Whitman, whose terms would expire in January, 1935. From this board Barker was elected president, Gebhart vice-president, and Cramer secretary of the association. In January, 1934, the authorized capital was $1,000,000, which included $50,000 of permanent stock designated as Class E, with a par value of $100. Of the permanent stock $15,500 had been issued. During the year the association had suffered losses which at various times were charged against the amounts credited to the permanent stock, and by the latter part of 1934 that stock, according to the books, was without value.
At a directors’ meeting in December, 1934, the president raised a question as to giving notice of the annual meeting in January, 1935, but the secretary stated as there was no permanent stock there would be no election. Harkrader asked that the notices be issued. No notice was given, however, and no regular stockholders’ meeting was held at the appointed time.
On January 17, 1935, a special meeting of the board of directors was held, seven members being present. Harkrader had no notice and was absent. The secretary, Cramer, proposed the board elect officers for the ensuing year. The president, Barker, protested and left the meeting, and thereafter Gebhart was elected president, Milne vice-president, and Cramer secretary. Director Cochran seems likewise to have protested, but whether she refrained from voting or voted in a negative way does not appear clearly from the court’s findings.
On February 4, 1935, a petition was filed with the secretary for a special stockholders’ meeting. The secretary did not promptly give notice, an alternative writ of mandamus issued, and notice was given on February 15, 1935, for a meeting which was held February 25, 1935.
On January 28,1935, which was a regular meeting date, the board of directors amended the by-laws by stating the authorized capital to be $2,000,000, of which $50,000 might be issued as Class PC permanent stock, discontinuing issuance of Class ,E permanent stock. At the next regular meeting on February 11, 1935, the by-laws were further amended to provide for Class PC permanent stock to be issued at full par value and in series with Class CC full-paid shares. Class CC full-paid shares were to be issued upon payment of full par value, but fractional shares could be issued. These shares were given voting power of one vote for each $100 par value at any regular or special stockholders’ meeting, but the number of such votes could not exceed the number of Class PC permanent stock “owned and held by the stockholder as shown on the books of the association on the date of such meeting.” By amendment of another bylaw any permanent stock could be voted by the stockholder of record, or by his guardian or by other person having written proxy, the shareholder being entitled to one vote for each $100 share of permanent stock and one vote for each share of Class CC full-paid shares, with limitation as above noted.
When the stockholders’ meeting was held February 25, 1935, trouble arose. Barker, as president, called the meeting to order and objection to his presiding was made on the ground Gebhart was president. Barker ceased to insist on his right, Gebhart was not present, and Milne, as vice-president, assumed the right and called for a roll call of voting shares which disclosed 152 Class E shares present by owner or proxy and 160 shares of PC permanent and CC full-paid, all present by proxy. Cramer’s right to vote eleven shares of Class E permanent stock which he claimed to own was challenged on the ground that the shares did not stand in his name on the association’s books, and this is conceded to be correct, and the right to vote any of the 160 shares of PC and CC stock was challenged on the ground the stock was illegally issued and had not been issued thirty days prior to the date of election. Harkrader and Milne were nominated for permanent chairman, and on vote Harkrader received 117 votes of Class E stock and Milne had received 33 votes of Class E stock and 160 votes of PC and CC stock. It is not necessary that we here notice the contention of the parties as to the right to vote classes of shares. Milne declared himself elected chairman. Harkrader, who seems to have led the opposition, and those favorable to his contention were occupying the west side of the room where the meeting was held, and after the result was announced by Milne, Harkrader and his supporters took no further part but, under Harkrader claiming to act as permanent chairman, held an election of their own, at which Hacker received 120 votes, Cochran 120 votes, Harkrader 121 votes and Erwin 119 votes, all of Class E stock, and they were declared by Harkrader elected as directors to serve for the ensuing year. At the same time the meeting under Milne continued, and 33 Class E votes were cast cumulatively for Whitman, giving him 132 votes of Class E stock, and he also received 60 votes of PC and CC stock. Gillett, Pedigo and Mawdsley each received 193 votes of PC and CC stock. These last four qualified as directors. Gillett later resigned. At the time the present action was filed Whitman, Pedigo and Mawdsley were acting as directors.
Plaintiffs brought the action to determine which group had been elected as directors, and after trial the court made findings of fact, some of which appellants contend are not supported by the evidence. The trial court concluded that plaintiffs were the duly elected directors, and that defendants were unlawfully withholding possession of office from the plaintiffs, and rendered judgment accordingly. The defendants’ motion for a new trial was overruled, and they, appeal.
Although other matters are involved, as the statement of facts indicates, the main point of controversy between plaintiffs and defendants arose from difference of opinion as to just what classes of stock were authorized to be voted at the stockholders’ meeting, the plaintiffs contending that the provisions of the statutes with reference to corporations generally require that—
"No person shall at any election be entitled to vote on any stock, unless the same shall have been standing in the name of the' person so claiming to vote, upon the books of the corporation at least thirty days prior to such election.” (R. S. 17-604.)
And that none of the Class PC or CC stock had been so standing in the names of the persons voting the same for that required time, while the defendants contend that the general provisions of the statutes with reference to corporations do not control as against specific provisions of the statutes with reference to building and loan associations, to which reference is hereinafter made. The trial court, although making no specific conclusion of law, by its judgment must be held to have adopted plaintiffs’ view. It is not necessary that we pay more attention to the detailed vote of each class cast either for any of the plaintiffs or any of the defendants, for if the main question is decided favorably to plaintiffs, then waiving any question about the effect of their withdrawing from the claimed regular meeting, they received a majority of the eligible and legal votes.and were thus elected, while if a contrary conclusion is reached as to. what stock could vote, then there is no dispute but that defendants received a majority of the eligible and legal votes, and were thus elected.
The provision relied on by the plaintiffs that no person shall be entitled to vote stock in a corporation unless it has stood in his name ■ on the books of the corporation for at least thirty days was contained in the corporation act included in the General Statutes of 1868 (G. S. 1868, ch. 23, § 27). The language of the' last clause of the section, not in question here, was slightly changed by section 1 of chapter 88 of the Laws of 1879, and as thus amended it stands. today as part of the general corporation laws of the state (R. S. 17-604).
Prior to 1899 building and loan associations had not received much attention by the legislature (Laws 1869, ch. 5; Laws 1870, ch. 43, and Laws 1875, ch. 65), but in that year a comprehensive act was passed for their organization and regulation (Laws 1899, ch. 78). Section 1 of this act (R. S. 17-1001) provided for incorporation and stated the corporation shall be—
“Subject to all the duties, limitations and restrictions conferred by general laws upon corporations, except as hereinafter otherwise provided.”
Section 2 of the 1899 building and loan act was amended by chapter 125 of the Laws of 1917 (R. S. 17-1002). It provided for articles of agreement, etc., and the number of directors and the names of those agreed upon for the first year. Section 3, which was amended by chapter 131 of the Laws of 1911 (R. S. 17-1003), provided for adoption and amendment of by-laws by the shareholders, and their approval by the bank commissioner, and section 4, which was unchanged, provided the number, title and function of the officers, their terms of office, time of election and that qualification of electors should be fixed in the by-laws, and that no person should be eligible to be a director unless he owned two shares of the capital stock.
Some radical changes in the powers of building and loan corporations were made by the legislature by the enactment of chapter 127 of the Laws of 1925. By section 11 of that act R. S. 17-1001 was repealed. When it was repealed, no specific statute containing similar language as quoted above, with respect to the general corporation law, was substituted. We need not here consider the effect of the repeal or the failure to enact other provisions of like tenor. By .section 11 of the 1925 act R. S. 17-1002 was repealed. By section 1 R. S. 17-1003 was amended so that the board of directors shall have power to adopt and amend the by-laws, with provision that by a two-thirds vote the stockholders may alter, change or amend them. Provision is also made that the by-laws must be approved by the bank commissioner (R. S'. 1933 Supp. 17-1003). By section 2 of the 1925 act R. S. 17-1004 was changed to provide that the number of directors must not be less than five but may be more; that the by-laws shall fix the length of term of office of director and may arrange so that the terms of only a certain number shall expire each year.
“Such, by-laws shall also provide for . . . the qualifications of electors, and the time of each periodical meeting of the directors and shareholders of the association.”
We need not notice the requirements as to stock ownership.
In the course of the above legislation the words “shareholder,” as shown in the last quotation, and “stockholder,” as in the provision for two-thirds vote on by-law amendment (R. S. 1933 Supp. .17-1003), and in other instances not here noted, were used, and to clarify matters with respect to qualifications of directors and electors the legislature enacted chapter 150 of the Laws of 1927 (R. S. 1933 Supp. 17-1062, 17-1063), section 1, defining the two words and section 2 providing:
“Any building and loan association may provide in its by-laws, the qualifications for its directors as well as qualifications of electors at stockholders’ meetings.”
Summarized, the question before us may be stated: Where, under the statutes above noted, a building and loan board of directors adopts by-laws duly approved by the bank commissioner (now by virtue of another statute [R. S. 1933 Supp. 75-13a01, 75-13a02] the supervisor of building and loan associations) providing the qualifications of electors by fixing their ownership of certain specified classes of shares as shown on the books of the association on the date of such meeting, are such holders qualified to act as electors where their shares have not been standing on the books of the corporation in their names for thirty days prior to the meeting as provided by R. S. 17-604?
The requirements of the general corporation laws and the laws pertaining specifically to building and loan associations have been shown. It is a cardinal rule of construction that all statutes are to be so construed as to sustain them rather than ignore or defeat them and to give them operation if the language will permit, instead of treating them as meaningless (2 Lewis’ Sutherland on Statutory Construction, § 498; Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042). It is also a general rule that where there is conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. While dealing with statutes other than those involved here, the rule was treated in Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838, where it was said:
“The' only legal question of importance in this case is the apparent conflict between the statute of wills (R. S. 22-238) and the statute pertaining to the authority of the court to make a division of property in a divorce case, when the divorce is not granted (R. S. 60-1506). These statutes should be construed harmoniously, so that each has a field for its operation, if that can reasonably be done. . . . The statute of wills states the general rule with respect to a will made by a husband or wife; it does not attempt to deal with the power of the court to render an appropriate -decree respecting the property of the parties in an action for divorce,. even when for good cause a divorce is not granted. The statute regulating the granting of divorces (R. S. 60-1506) does deal with that specific circumstance, and with that alone. Following the general rule that a statute pertaining to a specific thing takes precedence over a general statute which might be construed to relate to it, we hold that R. S. 60-1506 is valid and applicable to the specific circumstances to which it relates, notwithstanding the statute of wills (R. S. 22-238).” (p. 645.)
It has also been held a statute must be construed in the light of its purpose (Hooper v. McNaughton, 113 Kan. 405, 214 Pac. 613), and that statutes, although not strictly in pari materia, should so far as possible be construed in harmony with each other (59 C. J. 1042, 25 R. C. L. 1060). There is still the further rule that in interpretation of two statutes dealing with the same subject, the latter in point of time controls (Arkansas City v. Turner, 116 Kan. 407, 226 Pac. 1009; In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073, L. R. A. 1917E 1160). All of these rules are but guides to enable the court to determine the intent of the legislature, and applied to the question before us we find that while R. S. 17-604 does provide that only stockholders whose shares have stood in their names for thirty days are entitled to vote at stockholders’ meetings, and this refers to corporations generally, by the building and loan laws specific provision is made that by its by-laws the association may fix the qualification of electors at stockholders’ meetings. If it be held that stockholders’ meetings can only be attended by stockholders as defined by R. S. 1933 Supp. 17-1062, and that the electors must be holders of permanent stock, then an association which has no permanent stock — and there are many which do not — could not have a stockholders’ meeting. That specific objection to permitting the issuance of voting power to holders of CC full-paid stock is not made, perhaps for the reason that under the by-laws its voting power is coupled with the ownership of PC permanent stock. It thus appears that the legislature intended to provide that building and loan associations might fix a test to determine who should and should not vote. Such legislation is in a sense special, for it does not affect all corporations, although it is general in the sense that it affects all building and loan associations. As special legislation dealing only with one phase of corporate activity, it takes precedence of the provisions of the general corporation laws, which retain their full force and effect except as to building and loan as sociations. Nor can it be said that the provision for fixing qualification of electors is an isolated instance. The general corporation statutes with respect to dissolution of insolvent corporations (R. S. 17-806) are radically different than those applying to building and loan associations (R. S. 17-1032), provisions as to by-laws are not the same (compare R. S. 17-229 with R. S. 1933 Supp. 17-1003) and an examination and comparison will show many other vital differences. There may be and are many provisions of the general corporation act applicable to building and loan associations, but we have no hesitancy in holding that where the legislature made specific provision that the board of directors of a building and loan association may prescribe the qualification of electors at stockholders’ meetings it was not its intention that in addition to such prescribed qualifications the electors must also be owners of stock which has stood in their names on the books of the corporation for over thirty days prior to the meeting.
We are not concerned with whether it was wise for the legislature to grant to a building and loan association board of directors the power to adopt, alter, change or amend by-laws which fix qualifications of directors and electors in such manner that members of the board may perpetuate themselves in office. The legislature evidently thought that to provide that such by-laws, to be effective and operative, must be approved by the supervisor of building and loan associations, was a sufficient safeguard.
We notice appellee’s contention that the stock was issued in a manner contrary to the by-laws, and particularly R. S. 17-1006, which provides that permanent stock may be issued for which full par value shall be paid at time of issue or in monthly installments of five dollars per share. It may be said the court found the PC permanent and CC full-paid stock had been issued under the amendment to the by-laws of February 13, 1935, and that the shares voted were not eligible to vote for the reason they had not been transferred on the books thirty days prior to the election. Whether the contention is based on the proposition that only holders of permanent stock can be allowed to vote or is based on the thirty-day proposition, it has been answered by what has been said.
It is further argued that the issuance of the stock twelve days before the election was a fraud. It may be remarked that there is no finding of the court that the issuance of the stock was fraudulent. The trial court found the particular stock was not entitled to vote because it had not stood on the books of the company for thirty days prior to the meeting, and the only illegality the court found was based on that finding. Assuming that fraud is predicated on the fact that holders of other classes of shares turned them into the association for value and upon receiving the association’s check, endorsed the same and turned it back to pay for the new class of shares, we note there is no finding that any other shareholder could not have done the same thing. If the shares were otherwise lawful, and that depended entirely on the amendments of the by-laws providing therefor which were duly approved by the supervisor of building and loan associations, the method by which they were paid for, as shown above, did not make the issue fraudulent. The rule seems to be that if stock is issued between the time of the call for a meeting and the date of the meeting, it would be fraudulently issued if not sold for full value, but where it is sold for full value and the corporation is paid therefor there is no fraud. (3 Cook on Corporations [8th ed.] p. 2154, § 614.) Here there is no showing 'whatever but that the corporation received full consideration for the par value.
And finally, it is argued by appellees that the trial court’s conclusion must be sustained because the test of who was qualified to vote at the special election was to be determined by who was entitled to vote had the election been regularly held in January, which was before the PC and CC stock was issued; that under such test only Class E stock was entitled to vote, and appellees received a majority of the vote on that class of shares. In support of this, reference is made to a note in 2 Cook on Corporations (6th ed.), p. 1663, where Vandenburgh v. Broadway Railway Co., 29 Hun (N. Y.) 348, is cited. An examination of that decision shows that the court there applied a statute reciting in part:
“In all cases no share or shares shall be voted upon, except by such person or persons who may have appeared on the transfer books of said company to have had the right to vote thereon, on the day when, by the act of incorporation of such company, the election ought to have been held.” (p. 353.)
Somewhat the converse was considered in Johnston v. Jones, 23 N. J. Eq. 216, where it was held:
“Stockholders who are not such at the day an election is held, cannot vote, although they were stockholders at the day on which it should have been held.” (Syl. IT 10.)
In 5 Fletcher no Corporations (Perm, ed.), §2027, p. 108, it is said:
“In the absence of express provisions to the contrary, the right [to vote at stockholders’ meetings] is to be determined as of the time when the election or meeting is held,” etc.
We have no statutory provision to such an effect. R. S. 17-604, relied on by appellees, makes the thirty-day requirement refer only to the election and not to the date it should be held. The bylaws of the corporation, both before and after the amendments complained of, required only that stock to be voted should stand in the name of the voter, and there is no effort made to distinguish between regular and special meetings.
It is not necessary that we discuss the question as to whether or not the claimed election of appellees was a nullity because of the withdrawal of the electors from a regularly organized meeting.
We conclude that at the election held February 25, 1935, the appellants were duly elected as directors of the Wheat Belt Building and Loan Association, and that the trial court erred in rendering judgment in favor of the appellees, and its judgment is reversed. | [
52,
105,
120,
-114,
10,
98,
56,
-102,
120,
-96,
-89,
-45,
-23,
-10,
85,
77,
-61,
29,
-47,
74,
-41,
-76,
51,
-53,
-41,
-45,
-101,
-27,
-80,
95,
-12,
-33,
72,
48,
66,
-43,
-58,
-128,
67,
28,
-50,
-121,
43,
-51,
-3,
64,
48,
63,
114,
-53,
81,
62,
-13,
44,
-99,
99,
106,
40,
-33,
41,
64,
-7,
-86,
-116,
127,
22,
19,
32,
-102,
-89,
-8,
54,
-104,
49,
-116,
-24,
89,
-90,
-106,
116,
105,
9,
12,
46,
98,
17,
-91,
-17,
-40,
-88,
14,
80,
63,
-58,
-80,
81,
-110,
62,
-74,
-101,
-25,
18,
6,
-10,
-18,
-59,
92,
108,
5,
-114,
-74,
-63,
-121,
-12,
-104,
-117,
-5,
-93,
48,
97,
-56,
-74,
93,
-58,
122,
27,
70,
-96
]
|
The opinion of the court was delivered by
Burch, C. J.:
The subject of the proceeding was allowance by the probate court of a claim against an estate, the principal portion of which consisted of installments of rent to become due in the future, pursuant to covenants of a lease. The probate court disallowed this portion of the claim. The claimant appealed to the district court, and the district court disallowed the claim. 'The claimant appealed to this court. This court reversed the judgment of the district court. Because of disagreement of parties, and uncertainty of the district court with respect to the nature of the judgment of this court, the administrator, by leave of court, filed a motion requesting this court to clarify its judgment, which reads:
“The judgment is reversed, and the case remanded with directions to grant the request of the plaintiff creditor.”
The judgment seemed to the court to be as simple as it could be made, and the statute pursuant to which it is to be carried out (R. S. 1933 Supp. 22-729) seemed reasonably clear. The judgment will not be disturbed, but some amplification of the opinion may be helpful.
The request of the creditor was in effect that her claim under the lease be allowed against the estate of the deceased lessee, and that it be satisfied, or that provision be made for' its satisfaction. The claim consisted of two classes of indebtedness — matured indebtedness, consisting of matured and unpaid installments of rent, and indebtedness payable in the future. The controversy related to indebtedness payable in the future.
Indebtedness payable in the future consisted of three classes — • rent, insurance premiums, and taxes. The amounts of rent installments and the times when they are to be paid were fixed by the lease, and the court could presently and finally adjudicate that each installment constitutes an indebtedness justly due from (owed by) the estate, payable on a specified date.
The amounts of insurance premiums and taxes cannot be determined in advance, but the court could presently and finally adjudicate that such items constitute an indebtedness justly due from (owed by) the estate, to be discharged as they accrue, according to the terms of the lease.
Allowance as a claim against the estate of adjudicated indebtedness should be in accordance with the facts and should not be of a lump sum or sums payable as if already matured.
The indebtedness having been established and allowed, the next step would be an order respecting satisfaction.
The administrator may desire to.discharge the entire indebtedness as if now payable. If the creditor consent, the court may make an appropriate order. Should this course be pursued, the amount of the indebtedness is to be discounted. This is easily done with respect to rent. With respect to insurance premiums and taxes, a practical course is the only one open, and the court should find reasonable sums, perhaps average sums, which will probably meet insurance premiums and taxes, and discount those sums. The estate may gain or lose by such a computation, but the purpose of the statute is not to be defeated because exactness is not attainable.
If the indebtedness be not matured and discounted in the manner indicated, the court may direct that the administrator retain in his hands sufficient assets to satisfy the indebtedness as it matures. Compliance with the order contemplates not a general lien on assets, but a segregation of assets to be devoted to the specific purpose, and contemplates that administration of the estate be kept open, not generally, but to accomplish the purpose.
Heirs, devisees or others interested in the estate may procure release of assets from appropriation, either to present or future satisfaction of the indebtedness, by giving bond to the creditor for payment of the indebtedness as items mature, should the court think this course to be proper, and so order.
The mandate of this court should be carried out by the district court in accordance with views which have been expressed. | [
-16,
-20,
-43,
-20,
-102,
96,
11,
-104,
112,
-47,
50,
87,
109,
-62,
16,
43,
-14,
89,
117,
106,
87,
-77,
6,
-128,
-33,
-13,
-93,
-43,
-71,
109,
-27,
94,
76,
33,
-62,
-43,
-26,
-61,
101,
82,
14,
15,
-103,
-19,
-7,
64,
48,
121,
81,
13,
69,
-99,
-77,
44,
25,
-13,
40,
41,
121,
33,
-48,
-16,
-82,
5,
123,
23,
-127,
20,
-40,
-25,
88,
12,
-122,
49,
-128,
-32,
115,
-90,
-122,
116,
3,
-101,
8,
38,
103,
-128,
69,
-3,
-72,
-104,
38,
-36,
47,
-90,
-109,
89,
-86,
64,
-74,
-103,
124,
64,
7,
126,
-26,
-108,
31,
108,
31,
-114,
-42,
-79,
-49,
116,
-103,
11,
-10,
-29,
32,
113,
-115,
-128,
92,
-25,
123,
-77,
-105,
-72
]
|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Aldo P. Caller, an attorney admitted to the practice of law in the State of Kansas whose business address is in Kansas City, Missouri.
The pertinent facts are not in dispute and were summarized by the hearing panel as follows:
“Respondent represented Tanya Gambrill-Hendricks in a personal injury action filed in the District Court of Wyandotte County against Sunflower Racing, Inc., the corporation which owns and operates The Woodlands. In response to pretrial dispositoiy motions filed by the defendant, Respondent filed a brief to which he attached an affidavit which purportedly was signed by his client. Prior to filing his response to the defendant’s motions, Respondent prepared the affidavit which was to be signed by his client. All facts set out in the affidavit were contained in a deposition of the plaintiff which had previously been taken. Respondent called his client to discuss the contents of the affidavit he was preparing and then met with his client at a McDonald’s restaurant in Ronner Springs to review the document prior to execution. After reading the affidavit, Ms. Gambrill-Hendricks signed the verification page.
“Prior to filing the response, Respondent made further revisions to the affidavit and called his client to arrange for another meeting to sign the revised affidavit. Ms. Gambrill-Hendricks failed to appear for die meeting, having been detained at work. Respondent called his client to determine why she had not met him as planned and reviewed the changes with her over the phone and obtained her permission to attach the previously signed verification page to the revised affidavit.
“After preparing the response for filing, Respondent could not locate the original signed affidavit. Realizing that it was too late to obtain his client’s signature on the new affidavit, Respondent signed Ms. Gambrill-Hendricks’ name to the affidavit and placed it on his secretary’s desk to notarize. Respondent’s secretary notarized the signature. This document was attached to the brief and filed with the court.
“The motions filed by the defendant were denied by Judge David Lamar, the district court judge who presided over the case. Judge Lamar indicated that he relied upon deposition testimony, not the affidavit, in making his ruling.
“Prior to trial, Respondent did not tell his client, the judge or opposing counsel that the signature on the affidavit was not that of his client. The case was tried to a jury. Prior to trial, counsel for the defendant obtained the signature of plaintiff on a previously unsigned set of interrogatories. During the testimony of the plaintiff, counsel for the defendant examined Ms. Gambrill-Hendricks about the difference between the signatures on the affidavit and on the interrogatories. Ms. Gambrill-Hendricks testified that both signatures were hers. Respondent did not correct his client or . . . set the record straight at the time the incorrect testimony was elicited.
“On the evening following the examination of his client about the signatures, Respondent discussed the situation with the senior member of his law firm, Steven Borel. Mr. Borel testified that he helped Respondent find applicable Rules of Professional Conduct, but did not make a judgment as to the action which Respondent should take. At die first break in the trial the following day, Respondent obtained consent from his client to inform the judge of the facts surrounding the signature on the affidavit and went to Judge Lamar and explained the situation. Judge Lamar brought the defense counsel into his chambers. The defense attorney sought a dismissal of the case with prejudice and Respondent offered to dismiss without prejudice. Judge Lamar did not grant a dismissal, but ruled that the trial could not continue until a full disclosure had been made to the jury. Respondent withdrew from presentation of the case and the senior partner, Mr. Borel, finished the case.
“Respondent was called as a witness and testified that he had signed the affidavit, not his client. The jury determined that the plaintiff had suffered damages in the amount of $90,900.00, that the plaintiff was 28% at fault and the defendant was 72% at fault. This verdict was further reduced by the court in the amount of $2,580.00 to conform with the amount claimed by plaintiff in the pretrial order. After the trial, Tanya Gambrill-Hendricks signed a new affidavit reaffirming the contents of the affidavit signed by Respondent.
“The Respondent presented several witnesses who testified to Respondent’s legal ability and fine character. He also introduced numerous letters attesting to his character and ability as a lawyer, including one from the foreman of the Gambrill-Hendricks jury.”
The hearing panel found respondent had violated MRPC 1.4 (1994 Kan. Ct. R. Annot. 302) (client communication); MRPC 3.3 (1994 Kan. Ct. R. Annot. 348) (candor toward tribunal); MRPC 3.4 (1994 Kan. Ct. R. Annot. 352) (fairness to opposing party and counsel); and MRPC 8.4(c), (d), and (g) (1994 Kan. Ct. R. Annot. 379) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; engaging in conduct prejudicial to administration of justice; and engaging in other conduct adversely reflecting on the lawyer's fitness to practice law). No exceptions have been filed to the final report of the hearing panel.
Obviously, the forging of a document, securing notarization thereof, and filing the document in court constituted serious misconduct. The final hearing report states that the panel “agonized over a recommended disposition in this case.”
The closest Kansas case, factually, is In re Schmidt, 246 Kan. 178, 787 P.2d 1201 (1990). In comparing Schmidt to the facts herein, the panel reasoned as follows:
“In Schmidt, the respondent voluntarily surrendered her- license to practice after having 1) forged a deceased client’s signature to his will; 2) forged the signatures of the witnesses to the will; 3) notarized the forged signatures; 4) offered the forged will for probate; 5) transported witnesses to testify in support of the will; and 6) attempted to settle the matter in part to avoid disclosure of the forgeries. The court denied respondent’s petition for reinstatement citing the panel’s findings that the respondent had committed very serious ethical violations.
“The most significant differences between Schmidt and this case are the following:
“1. Ms. Schmidt forged the signature of the decedent and the witnesses and then offered the document for probate. She falsely signed a document purporting to be the will.of a decedent, which it was not. The facts set out in the affidavit to which respondent signed his client’s name had been verified by the client and were consistent with deposition testimony already before the court.
“2. The effect of Ms. Schmidt’s acts, had she been successful, would have been to cause an invalid will to be probated, changing the disposition of the decedent’s assets and damaging other persons. There was really no effect whatsoever caused by the acts of the respondent.
“3. Ms. Schmidt attempted to secure perjured testimony.
“4. Ms. Schmidt not only did not attempt to remedy her misconduct, she tried to cover it up. Respondent took remedial measures within a reasonable time following his delayed realization of the seriousness of what he had done. He testified at trial concerning the conduct and had another attorney complete the case.”
The panel then stated:
“Although the content of the affidavit was not false, the document purports to be sworn to by a person other than the person who actually signed the document. The respondent’s conduct in this case was knowing, but the panel is convinced that until the testimony was elicited from his client concerning the discrepancy in the signatures, he did not understand the seriousness of what he had done. His reaction at that point was one of near panic. The testimony of the partner in his firm concerning respondent’s reaction and the testimony of the other witnesses called by the respondent have convinced the panel that for some reason, respondent was unaware of the seriousness of his having signed the affidavit.
“No injury was caused by the conduct of the respondent for two reasons: one, the judge did not rely on the affidavit in making his ruling, and two, respondent took remedial action at the trial once it finally dawned on him what he had done. Clearly, the actions of the respondent created some potential for harm, but since the affidavit was consistent with the deposition testimony, that potential is slight. The affidavit would never have been a factor in the trial itself had not the defense counsel attempted to discredit the plaintiff by calling into question the signatures.”
The panel found that aggravating factors were absent and that many mitigating factors were present. Included therein were, inter alia, no prior disciplinary proceedings, no selfish motive, and extreme remorse. The panel then recommended that the discipline of published censure be imposed.
We accept the panel’s findings, conclusions, and recommended discipline. Like the panel, we conclude that the unique facts herein warrant the imposition-of a less severe discipline than would normally be imposed for misconduct in these categories.
It Is Therefore Ordered that Aldo P. Caller be censured in accordance with Supreme Court Rule 203(a)(3) (1994 Kan. Ct. R. Annot. 189) for his violation of the Model Rules of Professional Conduct.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to respondent. | [
-72,
-21,
104,
109,
-119,
-31,
50,
58,
115,
-45,
-25,
83,
-17,
-50,
8,
55,
-5,
45,
-112,
121,
-57,
-78,
126,
65,
100,
-9,
-24,
86,
-74,
79,
-19,
29,
73,
48,
-54,
-41,
-58,
-118,
-121,
28,
-114,
0,
-119,
-32,
89,
-31,
32,
97,
8,
15,
53,
62,
-14,
40,
56,
71,
104,
45,
127,
45,
-64,
84,
-37,
21,
127,
22,
-79,
-108,
-100,
11,
88,
42,
-104,
-71,
3,
-24,
50,
-74,
6,
116,
75,
-7,
8,
102,
98,
33,
-71,
-123,
-88,
-36,
15,
62,
29,
39,
-7,
65,
75,
40,
-106,
-99,
113,
20,
7,
-4,
-4,
69,
57,
76,
2,
-17,
-112,
-109,
13,
103,
14,
11,
-17,
39,
0,
65,
-53,
118,
93,
87,
120,
-101,
-117,
-80
]
|
Per Curiam:
Respondent James Richard Callahan has been licensed to practice law in the states of Kansas and Texas. In 1989, he was suspended from the practice of law in Kansas for nonpayment of registration fees pursuant to Supreme Court Rule 208 (1994 Kan. Ct. R. Annot. 203).
On August 26, 1993, a finding was made by the Grievance Committee for State Bar District No. 06A of the State Bar of Texas that respondent had violated numerous Texas Disciplinary Rules of Professional Conduct.
The findings of fact and conclusions of law were consented to by respondent and covered four complaints that he failed to communicate properly with his clients, neglected his client’s cases, failed to cooperate in the investigation of a disciplinary complaint, and converted a client’s funds.
The State Bar of Texas ordered that respondent be suspended from the practice of law in the state of Texas for a period of 6 months with the imposition of discipline suspended and respondent being placed on probation for a 5-year period from August 1, 1993, to July 31, 1998.
Respondent failed to comply with the conditions of his probation which was revoked on April 21, 1994, and his original suspension order was reinstated.
The Kansas Disciplinary Administrator’s office learned of respondent’s Texas discipline and instituted a formal complaint and notice of hearing on April 5, 1995.
Respondent did not regularly acknowledge service by mail and telephone calls but, pursuant to Supreme Court Rule 215 (1994 Kan. Ct. R. Annot. 213), respondent was properly served with the formal complaint, notice of hearing, and proposed witness and exhibit lists. See In the Matter of Kershner, 250 Kan. 383, 387, 827 P.2d 1189 (1992).
On May 16, 1995, a hearing panel of the Kansas Board for Discipline of Attorneys, acting in accordance with Supreme Court Rule 202 (1994 Kan. Ct. R. Annot. 187), adopted the findings and conclusions of the Texas Disciplinary Committee and found by clear and convincing evidence that respondent had violated MRPC 1.1 (1994 Kan. Ct. R. Annot. 292) (competence); 1.3 (1994 Kan. Ct. R. Annot. 297) (diligence); 1.4 (1994 Kan. Ct. R. Annot. 302) (communication); 1.15 (1994 Kan. Ct. R. Annot. 332) (safekeeping of client’s property); 8.4(c) (1994 Kan. Ct. R. Annot. 379) (dishonesty, fraud, deceit or misrepresentation); and 8.4(g) (1994 Kan. Ct. R. Annot. 379) (lawyer’s fitness to practice). The hearing panel recommended that respondent should be indefinitely suspended from the practice of law.
Respondent, although , properly notified, did not appear before the hearing panel or take exceptions to the hearing panel’s report.
The hearing panel’s report was considered by the Kansas Supreme Court on October 27, 1995. Respondent, although properly notified, did not appear.
The court, being fully advised, finds that the charges and findings of the State of Texas constitute violations of the Model Rules of Professional Conduct and that respondent should be indefinitely suspended from the practice of law in the state of Kansas.
It Is Therefore Ordered that James Richard Callahan be suspended indefinitely from the practice of law in the state of Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein be assessed to respondent, and that respondent shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217). | [
-80,
-6,
-15,
95,
-117,
97,
-70,
60,
85,
-45,
101,
83,
-19,
-40,
12,
123,
-63,
109,
-48,
123,
73,
-74,
127,
-64,
-26,
-5,
-24,
-41,
-69,
79,
-28,
-35,
72,
48,
-118,
-43,
-122,
-54,
-63,
28,
-114,
5,
24,
-26,
-37,
-119,
-80,
99,
3,
15,
49,
-98,
-77,
46,
29,
-62,
-87,
40,
-5,
-19,
65,
-111,
-103,
-107,
111,
5,
-110,
-121,
-100,
-58,
-48,
63,
-104,
-71,
32,
-24,
115,
-74,
2,
-12,
79,
-71,
-87,
102,
98,
34,
25,
-123,
44,
-88,
79,
26,
-116,
-89,
-103,
81,
105,
4,
-106,
-1,
100,
4,
39,
124,
100,
-59,
31,
-28,
15,
-49,
-44,
-111,
95,
119,
-52,
-118,
-2,
-89,
0,
85,
-116,
-10,
92,
-46,
114,
-101,
-118,
-16
]
|
The opinion of the court was delivered by
Six, J.:
Carrie L. Vincent appeals her jury trial convictions of felonymurder, K.S.A. 1993 Supp. 21-3401(b), aggravated robbery, K.S.A. 1993 Supp. 21-3427, and conspiracy to commit robbery, K.S.A. 1993 Supp. 21-3302 and K.S.A. 1993 Supp. 21-3426, arising from the carjacking and shooting death of Marcus Smith. Vincent was sentenced to consecutive sentences (life for the felony murder with upward departures on the other two offenses).
The incident involved a group of five teenagers, Damon Cox, Stefan Wheeler, Jared Owens, Michael Hayes, and Vincent. Four of the defendants, Cox, Wheeler, Owen and Vincent, were tried jointly as aiders and abettors. Cox and Vincent, each 17 at the time of the offense, were certified to be tried as adults. Cox was convicted of the same offenses as Vincent. (State v. Cox, 258 Kan. 557, 908 P.2d 603 [1995].) Wheeler was convicted of aggravated robbery and acquitted of the other charges. Owens was acquitted of all charges. Hayes was tried separately as the triggerman and convicted on all charges. (State v. Hayes, 258 Kan. 629, 908 P.2d 597 [1995].)
Our jurisdiction is under K.S.A. 1993 Supp. 22-3601(b)(1) (off-grid crime conviction). Vincent asserts sentencing error in (a) granting upward departures and (b) imposing an excessive total imprisonment term.
Vincent raises three assignments of error besides the sentencing issues. She contends that the trial court: (1) erroneously allowed the State to introduce gang evidence and gave an erroneous gang evidence instruction; (2) erred in admitting oral hearsay evidence that the vehicles used by the perpetrators were stolen; and (3) erred in failing to sever her trial. The resolution of the first two issues is controlled by Cox. (Severance was not an issue in Cox’s case.)
We find no reversible error on issues (1) and (2), no error on issue (3), and affirm the convictions. On the sentencing issues, following Cox, we hold that K.S.A. 1993 Supp. 21-4716(b)(2)(B) requires that only the defendant’s individual conduct during the commission of the current offense be reviewed when considering the imposition of a departure sentence. Consequently, we vacate the sentence for aggravated robbery. We hold that a killing resulting in a conviction of felony murder may not be used, under the facts of this case, as the basis for an upward sentence departure for a conviction of conspiracy to commit robbery. We also vacate the sentence of conspiracy to commit robbery. We affirm the felony-murder sentence and remand for resentencing on the other convictions.
FACTS
The facts are briefly set out in Cox. Additional facts are referenced in this opinion.
DISCUSSION
We will first consider the severance issue. Vincent contends that the trial court erred in denying her motion for severance.
We stated in State v. Butler, 257 Kan. 1043, Syl. ¶ 9, 897 P.2d 1007 (1995):
“Severance of trials of codefendants in a criminal case lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice. Some of the factors to be considered in determining whether there is sufficient evidence to mandate severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.”
Vincent does not assert any of the five grounds listed in Butler. “Any point specified on appeal which is neither argued nor briefed is deemed to have been abandoned.” State v. Mims, 222 Kan. 335, Syl. ¶ 6, 564 P.2d 531 (1977). Even if Vincent had argued any of these grounds, none appear applicable. Vincent contends first that only the testimony of Wheeler, one of the codefendants, placed Vincent at the scene of the crime. We do not agree. Vincent’s own statement, read to the jury in redacted form, placed her at the scene of the crime. In addition, Wheeler could competently testify against Vincent, regardless of severance.
Vincent’s statement provides in relevant part:
“Our vehicles followed Marcus out of King’s, east on Division to 8th, south on 8th to Laramie and went on Laramie where Marcus stopped. The dark green Blazer stopped next to Marcus. Marcus was against the north . . . curb and we were next to him, both of us headed west. Kilo [Hayes] was driving a black Blazer. He drove in front of Marcus and parked against the north curb, also headed west. Kilo got out of the black Blazer he was in and walked in between Marcus, who was in his car, and I sat in my car. Kilo asked Marcus how much he wanted for the wheels and tires. Marcus said he didn’t really want to sell them. I was leaning out the window talking to Marcus when Kilo took a gun from the glove box of my car. The gun was a dark colored revolver handgun. Kilo went to Marcus’ window. At that point I got out of my car and went to the black Blazer parked behind Marcus. I didn’t want to be around if anything happened so I got into the driver’s seat of the black Blazer and drove off.”
Vincent gave a second statement to Detective Wilson, which was also read to the jury in redacted form. In that statement, she admitted that she
“saw Kilo get a gun out of the glove box of the dark green Cherokee Jeep. He pointed the gun at Marcus and made Marcus get out of his car. He then made Marcus lay on his stomach on the ground. I watched as he shot Marcus twice in the back. I drove away in the black Blazer and heard several more shots.”
Detective Wilson also testified that Vincent described to him the position of the vehicle she was in at the scene of the murder, in relation to Marcus Smith. Vincent also described to Detective Wilson the location of the black Blazer, the vehicle she left the scene in, which was parked behind the victim’s vehicle.
Vincent next argues that the testimony of Officer Smith concerning gangs was irrelevant and inadmissible as to her and was only allowed in because Cox was a codefendant. We held in Cox that the admission of Officer Smith’s testimony concerning gangs was harmless error. The error was harmless as to Vincent as well, as we discuss later in the opinion, and provides no grounds for severance.
Vincent also argues that her association as a white female with four black codefendants should require severance. Vincent notes that during voir dire, all panel members were asked whether this relationship would influence them and all answered that it would not. Vincent shows no reason why this relationship makes severance necessary. In addition, Vincent fails to show how severance would keep the existence of race from the jury.
Vincent mentions in passing, but does not address in her brief, the question of antagonistic defenses. We have observed:
“Antagonistic defenses do require severance, but such defenses occur only when each defendant is attempting to convict the other. State v. Pham, 234 Kan. 649, 655, 675 P.2d 848 (1984). The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. State v. Martin, 234 Kan. 548, Syl. ¶ 3, 673 P.2d 104 (1984).” State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995).
In this case, Vincent’s defense was not antagonistic to the defenses of any of the other codefendants, nor were any of their defenses antagonistic to Vincent’s. Vincent and Cox each separately gave interlocking statements to Detective Wilson admitting their level of involvement and identifying Hayes as the triggerman. None of the codefendants testified at trial or presented any evidence, except for Wheeler. Wheeler did not deny his involvement, but testified that he was coerced by Hayes. Such a defense is not antagonistic to Vincent’s. Wheeler was not attempting to convict Vincent.
Vincent has failed to show any reason why the trial court’s decision not to sever her trial was an abuse of discretion.
The remaining issues are controlled by Cox.
Gang Evidence
Vincent argues that the trial court committed reversible error by admitting over her objection the irrelevant testimony of Hardie T. Smith, a gang expert, and compounded the error by giving a gang evidence instruction. She contends that in view of the absence of any evidence that Vincent was a gang member or that her involvement in the carjacking was gang-motivated, the trial court abused its discretion by admitting Officer Smith’s testimony as to gangs. This identical issue was raised in Cox. Our decision in Cox controls. In Cox, we determined that the gang evidence was irrelevant and improperly admitted, but harmless error.
Jury Instruction
The trial court gave the following instruction concerning gang evidence to the jury:
“Evidence has been admitted in this case that each of the defendants are members of a gang. This evidence may be considered solely for the purpose of proving their motive, interest, or bias for their actions, but only for that limited purpose.”
During the instructions conference, Vincent’s counsel objected to the gang evidence instruction on the grounds that there was no proof that Vincent was in a gang. In view of the absence of evidence in the record that Vincent was a gang member, the instruction is erroneous. In Cox, we held that the instruction was improper, but harmless error.
It is unlikely that the instruction affected the outcome of the case. Owens was acquitted of all charges. Wheeler was convicted only on the aggravated robbery charge. The jury appeared to have based its verdicts on the evidence of the defendants’ conduct in connection with the carjacking, not on gang membership per se. Vincent’s level of involvement was well established in her own statements and the testimony of other witnesses. The instruction was harmless error as to Vincent.
Hearsay Evidence
At trial, counsel for all four defendants joined in objections at the time the State offered the oral testimony of Chief Pickman of the Atchison Police Department. He testified that the police ran routine vehicle registration and ownership checks on the vehicles in which the defendants were apprehended. The objections were on the grounds that such information was highly prejudicial, based on uncharged conduct, and that it was hearsay not falling within any exceptions, including any “business” exceptions. The trial court overruled the objections and allowed the testimony, stating that “it’s in the official course of business.” Chief Pickman then testified that the checks revealed the Jeep and two black Blazers had been stolen late on the night of July 29, 1993, or early on July 30, 1993.
Vincent mentions in passing that the trial court allowed the hearsay testimony of Chief Pickman. Vincent does not argue that the testimony was erroneously admitted as hearsay. Vincent only contends that the testimony is inadmissible under K.S.A. 60-455 as “prior crimes” evidence. We addressed the hearsay issue in Cox and determined that the admission of Chief Pickman’s testimony was harmless error. In State v. Davis, 256 Kan. 1, 22, 883 P.2d 735 (1994), we held that evidence (not subject to a hearsay objection) that a vehicle as stolen would be independently admissible as res gestae evidence. Therefore, such evidence would not fall within K.S.A. 60-455. Vincent’s argument on this issue is not persuasive.
Sentencing
The trial court sentenced Vincent to life imprisonment on the felony-murder conviction, upward departures of 102 months’ imprisonment for the aggravated robbery conviction, and 26 months’ imprisonment for the conspiracy to commit robbery conviction, all terms to be served consecutively. Vincent received the same sentence as Cox, and the sentencing court appears to have used the same aggravating factor for each codefendant: the brutality of the killing. In Cox, we remanded for resentencing because die sentencing court appeared to have improperly considered more than the defendant’s own conduct in determining that the aggravating factor, “excessive brutality” under K.S.A. 1993 Supp. 21-4716 (b)(2)(B), existed.
As grounds for the upward departures for Vincent, the trial court stated:
“But here we have the evidence that we have you four or five coming up here in three stolen vehicles.
“Geemenee Christmas.
“That’s pretty bad in itself and would show that really there was little disregard for the property of other people.
“As far as your participation in this crime, the Court agrees with the County Attorney.
“I think your participation, as it turned out, was a lot more than a couple of the other defendants.
“And it showed out during the crime spree, or the crime that was committed, later on the stealing of the vehicle and the killing of Marcus Smith, that actually you were involved with it up to the very end as far as being in the vehicles that went up there to kind of block off Marcus Smith and to get something done.
“What defendants can’t understand is if they don’t pull the trigger, they don’t think they’re as hable.
“But we all know that actually a person who is part of a gang does not have to be the one that pulls the trigger or doesn’t even have to be part of the gang.
“The one that participates in the crime doesn’t have to be the one that pulls the trigger.
“And, actually, you know, in most crimes of that nature, it isn’t the one who’s the most guilty.
“Who’s the mastermind.
“And the mastermind usually doesn’t pull the trigger.
“And I think that you participated in it very fully in this particular case.
“And even though it’s hard to understand for a male like myself of how a young lady like yourself could really get involved in these big crimes, it’s just a matter of our — what I’ve said before — about people and their associations and what they get involved in and what they really don’t have much purpose in life.
“And I remember you especially sitting down there with the boys on the first two or three appearances and just laughing and carrying on like nothing happened.
“And you just — you just — don’t understand the value of life.
“And I’m not sure that anything’s going to change you probably in the near future.
“So the Court believes that he would be remiss in not finding you or sentencing you the same way that I did the previous defendant.
“And the Court finds that this was a brutal execution-type of murder.”
Our holding in Cox controls the sentencing issues in this case.
As required by K.S.A. 1993 Supp. 21-4716(a), the trial court did state on the record at the time of sentencing, what it considered to be the substantial and compelling reason for departure: the “brutal execution-type of murder.” As in Cox, the trial court appears to have focused on Vincent’s criminal liability as an aider and abettor, rather than looking at Vincent’s own conduct during the commission of the offense, as required under K.S.A. 1993 Supp. 21-4716(b)(2)(B).
We affirm the three convictions and the sentence for felony murder. We vacate the sentences for aggravated robbery and conspiracy to commit robbery and remand for sentencing with instructions to impose the appropriate sentences under the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq.
Because of our holding that upward departures in sentencing were not appropriate, we need not address Vincent’s contentions that her total term of imprisonment was improperly determined.
Convictions affirmed, sentences vacated in part, and case remanded. | [
80,
-24,
-19,
-65,
29,
98,
43,
28,
112,
-62,
-26,
83,
45,
-49,
5,
107,
-85,
95,
84,
97,
85,
-73,
7,
-31,
-69,
-77,
115,
-44,
-74,
72,
108,
-12,
24,
80,
-114,
93,
-26,
74,
85,
20,
-114,
-123,
-120,
-57,
24,
2,
58,
126,
30,
14,
113,
14,
-13,
107,
24,
-62,
41,
40,
91,
-83,
32,
-7,
-54,
-121,
-41,
20,
-77,
-124,
-70,
-124,
-40,
52,
-40,
57,
0,
-8,
115,
-122,
-126,
-12,
109,
-103,
-116,
38,
103,
32,
28,
-50,
124,
-120,
62,
118,
-99,
-89,
-104,
88,
65,
68,
-106,
-35,
98,
22,
47,
-36,
-17,
12,
93,
-20,
-87,
-33,
-14,
-111,
77,
56,
18,
-21,
-5,
33,
48,
117,
-52,
-30,
92,
85,
112,
-109,
6,
-76
]
|
The opinion of the court was delivered by
Lockett, J.:
This is an action brought by an employee of a wholly owned subsidiary corporation who was injured at work. After claiming and receiving workers compensation benefits as an employee of the subsidiary, the employee brought suit against the parent corporation for benefits pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1988), by alleging that the parent corporation, a railroad, was the alter ego of the subsidiary corporation. The worker claimed the separate identities of the two corporations was a fiction created to ¿low the parent corporation to evade its FELA obligations. The district court granted summary judgment to the parent corporation, holding that the parent corporation was not the ¿ter ego of the subsidiary corporation and therefore could not be liable under FELA as the worker’s employer. The worker appeals. Pursuant to K.S.A. 20-3018(c), this case was transferred from the Court of Appe¿s.
In 1987, appellant Michael E. Doughty became employed by Fruit Growers Express Company (FGE) in Kansas City, Kansas. Subsequently, FGE became a wholly owned subsidiary of CSX Transportation, Inc. (CSXT). On January 2, 1992, Doughty was injured when an FGE forklift he was repairing unexpectedly engaged in gear and ran over him. Doughty filed a workers compensation claim alleging he was an employee of FGE. Doughty received $50,000 in settlement of his workers compensation claim. Doughty notes that in the course of resolving his workers compensation claim, attorneys for FGE submitted to his attorney a General Release setting forth as a condition of any settlement of his workers compensation claim that he also release any claim he might have against CSXT. Doughty did not execute the General Release but instead signed a limited release that preserved any claim against CSXT.
Doughty then brought this FELA action against CSXT for the same injuries for which he had received state workers compensation benefits. FGE is not a railroad and is not covered by FELA. To maintain a claim under FELA, Doughty must prove that he was working for CSXT, a railroad, at the time of his injury. See Bradsher v. Missouri Pacific R.R., 679 F.2d 1253, 1255 n.5 (8th Cir. 1982). In the action, Doughty asserted that CSXT, as the parent corporation of FGE, was the alter ego of FGE and therefore liable under FELA as his true employer. Under state workers compensation, any recovery by Doughty in the FELA action against CSXT is subject to a lien. See K.S.A. 44-504. Interestingly, Doughty also filed a prior claim for workers compensation for injuries sustained as an employee of FGE on June 27, 1989. That claim was settled in June 1992. Nowhere in his 1989 or 1992 workers compensation claims did Doughty assert that he was an employee of any entity other than FGE.
Both parties filed motions for Summary judgment. In its memorandum opinion, the district court made 67 separate findings of fact and analyzed the factors set forth in Schmid v. Roehm GmbH, 544 F. Supp. 272, 275 (D. Kan. 1982). See Intern. U., United Auto., Etc. v. Cardwell Mfg. Co., 416 F. Supp. 1267, 1286 (D. Kan. 1976); Hoffman v. United Telecommunications, Inc., 575 F. Supp. 1463, 1478 (D. Kan. 1983). The district court concluded there was no evidence that an alter ego relationship that created an injustice existed between FGE and CSXT and granted summary judgment to CSXT.
Doughty appeals, asserting that summary judgment was not appropriate because genuine issues remain, the court made findings of fact that were controverted, and the court disregarded 133 material facts which support his claim that CSXT is the alter ego of FGE. CSXT responds that the district court correctly granted summary judgment.
Standard of Review
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 60-256(c). If reasonable minds could differ as to the conclusions drawn from the facts, summary judgment must be denied. Finstad v. Washburn University, 252 Kan. 465, 468, 845 P.2d 685 (1992); Bank of Alton v. Tanaka, 247 Kan. 443, 446, 799 P.2d 1029 (1990).
When a summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party defending against the motion. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). The burden of proving the lack of any genuine issue of material fact is on the moving party. Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 871, 811 P.2d 860 (1991). To defeat a properly supported motion for summary judgment, the nonmoving party must come forward with specific facts showing a genuine issue for trial. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 863 P.2d 355 (1992). Controverted facts which are immaterial to the case will not preclude summary judgment. Early Detection Center, 248 Kan. at 871.
Parent!Subsidiary Alter Ego Law
For Doughty to obtain FELA benefits, he must prove that CSXT, a railroad, is the alter ego of FGE and that an injustice or inequity exists. If CSXT is the alter ego of FGE, Doughty was working for a railroad and entitled to FELA benefits.
This court recently addressed the application of the alter ego concept in a parent-subsidiary context in Dean Operations, Inc. v. One Seventy Assocs., 257 Kan. 676, 896 P.2d 1012 (1995). The Dean court observed that in the absence of fraud or other invidious and vitiating circumstances, the fact that one corporation is instrumental in the formation of another corporation and owns nearly all of the stock of the latter corporation does not have the legal effect of making the parent corporation liable for the debts of the subsidiary corporation. 257 Kan. at 680.
The Dean court noted that the fiction of separate corporate identities of two corporations will not be extended to permit one of the corporations to evade its just obligations; to promote fraud, illegality, or injustice; or to defend crime. Under circumstances where the separate corporate entity is disregarded, the parent corporation may be held hable for the acts of the subsidiary. The mere fact, however, that a subsidiary corporation was organized for the avowed purpose of avoiding liability on the part of the holding company does not in itself constitute fraud justifying disregard of the corporate entity of the subsidiary. The courts will disregard the fiction of a separate legal entity when there is such domination of finances, policy, and practices that the controlled corporation has no separate mind, will, or existence of its own and is but a business conduit for its principal. 257 Kan. at 681.
The Dean court observed that one case which illustrated the application of alter ego analysis in a parent-subsidiary corporation context was Vanguard Products Corp. v. American States Ins. Co., 19 Kan. App. 2d 63, 863 P.2d 991 (1993). In determining whether a supplier of materials to a second-tier or sub-subcontractor corporation had a right to recover under a public works bond, the Vanguard court held that the subcontractor corporation and the second-tier subcontractor corporation were in substance a single entity. The Vanguard court noted that appellate courts in Kansas and elsewhere exhibit a willingness to look beyond the mere surface features of a business relationship where required in the interests of justice and equity. 19 Kan. App. 2d at 67.
The Vanguard court then reviewed two federal cases which had similar issues to this case, Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974), and Schmid v. Roehm GmbH, 544 F. Supp. 272, and which had discussed the application of Kansas alter ego law. In Quarles, the Tenth Circuit Court of Appeals examined an attempt to subject a nonresident parent corporation to jurisdiction through application of the alter ego doctrine where only the subsidiary corporation had transacted business within Kansas. 504 F.2d at 1362-64. The court noted that a holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity. It asserted that circumstances justify disregard of the corporate entity if separation of the two entities has not been maintained and an injustice would occur to third parties if the separate entity were recognized. 504 F.2d at 1362. The Quarles court found that the totality of the facts supported the trial court’s conclusion that the participation of the parent in the affairs of the subsidiary did not amount to a domination of the day-to-day business decisions of the subsidiary and held that under the facts jurisdiction could not be established through application of the alter ego doctrine. 504 F.2d at 1364.
Schmid v. Roehm GmbH, 544 F. Supp. 272, was an action to recover damages for injuries sustained as a result of defective safety devices on a gun. The federal district court considered whether the alter ego doctrine could be applied to impose liability on the parent corporation of the defendant manufacturer. The court observed that the fact that two corporations may have stockholders or officers in common, that one is the parent of the other, that the parent selects from its own directors and officers the majority of the directors of the other, or that a parent finances a subsidiary is, without more, insufficient to warrant treating the two corporations as one. It concluded that where it is apparent the relationship between the parent and its subsidiary is so intimate, the parent’s control over the subsidiary is so dominating, and the business and assets of the two are so mingled that the recognition of distinct entity would result in injustice to third persons, courts will look through the legal fiction of separate entities and treat them as justice requires. 544 F. Supp. at 275; see Intern. U., United Auto., Etc. v. Cardwell Mfg. Co., 416 F. Supp. at 1286.
Noting that the determination of whether a subsidiary corporation is an instrumentality of the parent is a question of fact, the Schmid court noted that Cardwell set out 10 factors as guidelines in making a determination of alter ego status. The 10 factors are whether: (1) the parent corporation owns all or a majority of the capital stock of the subsidiary; (2) the corporations have common directors or officers; (3) the parent corporation finances the subsidiary; (4) the parent corporation subscribed to all of the capital stock of the subsidiary or otherwise caused its incorporation; (5) the subsidiary has grossly inadequate capital; (6) the parent corporation pays the salaries or expenses or losses of the subsidiary; (7) the subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation; (8) in the papers of the parent corporation, and in the statements of its officers, the subsidiary is referred to as such or as a department or division; (9) the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation; and (10) the formal legal requirements of the subsidiary as a separate and independent corporation are not observed. Schmid, 544 F. Supp. at 275. The Schmid court noted that the plaintiff had established only a few of the 10 factors and had failed to establish that the use of the separate corporate structure resulted in any fraud or inequitable conduct (or injustice) toward the plaintiff. 544 F. Supp. at 276-77.
Seven years after Cardwell, the United States District Court for the District of Kansas decided Hoffman v. United Telecommunications, Inc., 575 F. Supp. 1463. Hoffman was an employment discrimination action against a parent corporation and 38 subsidiaries located throughout the country. In ruling on the subsidiaries’ motion to dismiss for lack of jurisdiction over the parent corporation, the district court held, among other things, that the parent corporation exerted such dominion and control over its subsidiaries that they were not separate and distinct corporate entities but one and the same under alter ego analysis. The Hoffman court adopted the 10 factors as set out in Cardwell. 575 F. Supp. at 1478.
The concept that one corporation can be found to be the alter ego of another corporation is a well-established doctrine in Kansas law, but examples of its application in a parent-subsidiary corporate context are rare. Several general principles may be gleaned, however, from prior application of the doctrine of alter ego by Kansas appellate courts in both dissimilar circumstances and somewhat similar actions brought to pierce the corporate veil and hold individual officers, directors, or stockholders individually responsible for acts knowingly and intentionally done in the name of the corporation. See, e.g., Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983). The ultimate test for imposing alter ego status is whether, from all of the facts and circumstances, it is apparent that the relationship between the parent and subsidiary is so intimate, the parent’s control over the subsidiary is so dominating, and the business and assets of the two are so mingled that recognition of the subsidiary as a distinct entity would result in an injustice to third parties. In addition to the factors used to determine a corporate alter ego status, a plaintiff must show that allowing the legal fiction of a separate corporate structure would result in injustice toward the plaintiff. Dean Operations, 257 Kan. 676, Syl. ¶¶ 5, 6.
CSXT-FGE Corporate Relationship
Fruit Growers Express (FGE), a Delaware corporation with its principal place of business in Alexandria, Virginia, was organized in 1920 and since that time has operated as a separate corporate entity. FGE is not a railroad but is termed a private car line company, a company which does not own any tracks or trains but rather owns and leases refrigerated rail cars. In addition to rail cars, FGE has substantial capital assets, including a shop and equipment in Jacksonville, Florida, worth more than $5 million, and a significant inventory. FGE has 28 facilities located in 15 states, only one of which is in Kansas. FGE’s employees are not covered by FELA.
CSX Corporation (CSX) was established in 1980 as a holding corporation of two formerly independent railroads, Chesapeake Systems, Inc., (Chesapeake) and Seaboard Railroads, Inc. (Seaboard). When CSX was created, Chesapeake and Seaboard’s combined interest in FGE exceeded 50%.
CSXT is a Virginia corporation organized as a subsidiary of CSX in 1988 with its principal place of business in Jacksonville, Florida. CSXT is a railroad and has over 100 subsidiaries, many of which are not railroads or refrigerator car companies. For example, CSXT owns Energy Resources and Logistics, a cogeneration company, and Real Properties, Inc., a real estate company.
In 1983, CSX began to buy additional outstanding FGE shares so that FGE’s earnings could be consolidated for federal tax purposes in the CSX corporate tax return. In 1986, FGE conducted a stock repurchase seeking to vest CSX and its subsidiaries with 100% of FGE’s issued and outstanding shares. Also, in 1988, CSX consolidated its transportation business into a new wholly-owned subsidiary, CSXT. By 1988, CSXT owned all issued FGE shares, making FGE a wholly-owned subsidiary of CSXT, which in turn is a wholly-owned subsidiary of CSX. In 1988, FGE began paying an annual dividend of $100 per share to CSXT.
Prior to March 1988 there was no formal written agreement regarding the provision of services by CSXT for FGE. On March 10, 1988, FGE and CSXT entered into a Management Services Agreement (MSA), under which CSXT agreed to provide the following services for FGE: (a) human resources; (b) purchasing; (c) legal; (d) corporate communications; (e) real estate administration; (f) pensions; (g) costs and budgets; (h) cost and economic analysis; (i) treasury; (j) management information systems; (k) accounting; (1) internal audit; and (m) risk management.
Findings of the District Court
In determining this case, the district court observed the law was clear that FELA, as administered, does not apply to refrigerator car companies. See Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 543, 20 L. Ed. 2d 112, 88 S. Ct. 1239 (1968). It noted that Doughty must be an employee of CSXT, which is a railroad, to maintain an action under FELA, and show that CSXT is the alter ego of FGE, which would require the court to treat the two corporations as one.
The district court set out the factors of the test for determining whether an alter ego relationship exists between the two corporations and then applied the factors to the evidence as follows:
1. Does CSXT own the capital stock of FGE?
As of 1988, CSXT became the sole shareholder of FGE. Prior to being a wholly-owned subsidiary of CSXT, FGE’s majority stockholders were Chesapeake and Seaboard, which companies later became CSX. It was in 1986 that CSX began repurchasing the outstanding FGE stock. However, mere ownership of all the stock of a subsidiary will not, in and of itself, subject the parent corporation to the jurisdiction of the state where the subsidiary is doing business, nor does it require a finding that an employee of the subsidiary is an employee of the parent corporation.
2. Do the parent and subsidiary have common directors or officers?
The facts show that since January 1, 1990, there have been common directors and officers of the two corporations. Two of the three members of the FGE Board of Directors are officers or directors of CSXT. Three of the five FGE corporate officers are officers, directors, or employees-of CSXT.
3. Does the parent corporation finance the subsidiary?
There are no facts that show CSXT finances FGE. The Management Services Agreement calls for certain services to be provided by CSXT, for which FGE pays an agreed fee.
4. Does the parent corporation subscribe to all the capital stock or did it otherwise cause the incorporation of the subsidiary?
FGE is a much older corporation than CSXT. Although CSXT now owns all of the stock of FGE, there are no facts to show that CSXT brought about the existence of FGE.
5. Does the subsidiary have grossly inadequate capital?
There are no facts to show that FGE has inadequate capital. In fact, the opposite appears to be FGE’s state of affairs. FGE does pay an annual dividend of $100 per share to CSXT.
6. Does the parent company pay salaries, expenses, or losses of the subsidiary?
There is no evidence of FGE losses nor any facts to show that any FGE officer is paid by CSXT. There is evidence of minor expenses having been paid by CSXT for certain training of FGE employees and the providing of safety literature.
7. Does the subsidiary have substantially no business except with the parent or have no assets except those conveyed to it by die parent?
There are no facts to show that any assets have been conveyed to FGE by CSXT. The only evidence as to business shows that FGE’s Kansas City, Kansas, facility does business almost exclusively with the Atchison, Topeka & Santa Fe Railroad and not with CSXT.
8. Is the subsidiary referred to by the parent as a subsidiary or as a department or division?
There are no facts to show that CSXT ever referred to FGE as anything other than a subsidiary in any of its published documents or literature.
9. Do the directors of the subsidiary act independently in the interest of the subsidiary?
Although there is a corporate agenda of the CSX family, there are no facts to show that any FGE director took any action that was adverse to the position of FGE.
10. Are the formal legal requirements of the subsidiary as a separate and independent corporation observed?
The facts all show that they are observed.
An additional question would be whether honoring the legal fiction, if one were found, would result in injustice.
The district court pointed out that FGE was not a railroad. It noted the fact that FGE’s business has always been outside the requirements of FELA was evident because Doughty had previously received state workers compensation as an injured employee of FGE.
The district court found that there was no showing that CSXT, which owned all of the outstanding shares of FGE stock, exerted such dominion and control over FGE that they did not in reality constitute separate and distinct corporate entities. It observed that although both corporations were a part of the CSX corporate family, each corporation was separate and distinct. The district court concluded that there was no showing that the separate corporate structure resulted in an injustice or inequitable conduct toward the plaintiff.
The district court then stated that summary judgment was appropriate if Doughty failed to show that an alter ego relationship exists between the two corporations. See Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1378-79 (10th Cir. 1980); Schmid v. Roehm GmbH, 544 F. Supp. 272, 277 (D. Kan. 1982); Bradsher v. Missouri Pacific R.R., 679 F.2d at 1255 n.5 (8th Cir. 1982). It determined that there was no evidence to support a finding that CSXT was the alter ego of FGE. The district court concluded that Doughty was not working for a railroad at the time of his injury and granted summary judgment to CSXT.
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Land Grant Ry. & T. Co. v. Coffey Co., 6 Kan. *245, *253 (1870). Any person, partnership, association, or corporation may incorporate to conduct or promote any lawful business or purpose. K.S.A. 17-6001(a), (b). A corporation holding stock in another corporation stands in the same relation as a stockholder. See A. T. & S. F. Rld. Co. v. Cochran, 43 Kan. 225, 234, 23 Pac. 151 (1890).
Both parties agree that FGE is a wholly owned subsidiary of CSXT; FGE is not undercapitalized; and CSXT does not pay the salaries, expenses, or losses of FGE. The parties disagree over whether FGE and CSXT have common directors and officers; CSXT finances FGE; the bulk of FGE’s business is performed for CSXT; FGE is a de facto division of CSXT; the directors and executives of FGE act independently in the interest of the subsidiary or take direction from the parent corporation; the formal legal requirements of FGE as a separate and independent corporation are observed; and CSXT generally directs and controls the day-today operations of FGE.
The determination of whether a subsidiary corporation is an instrumentality of the parent is a question for the trier of fact. Controverted facts which are immaterial to the case will not preclude summary judgment. We have reviewed the district court’s 67 findings of fact and the 133 material facts which Doughty claims support his claim that CSXT was the alter ego of FGE and then applied the factors used by the district court to determine if the district court’s grant of summary judgment was correct.
We note that no single factor or combination of factors is necessarily conclusive in determining whether to apply the alter ego doctrine. See Dean, 257 Kan. at 683. The fact that two corporations may have stockholders or officers in common, that one is the parent of the other, that the parent selects from its own directors and officers the majority of the directors of the other, and that a parent finances a subsidiary is, without more, insufficient to warrant treating the two corporations as one. To treat FGE and CSXT as one corporation we must be able to conclude from the facts and circumstances that the relationship between CSXT and FGE is so intimate, CSXT’s control over its subsidiary, FGE, is so dominating, and the business and assets of the two are so mingled that the recognition of FGE as a distinct entity would be a legal fiction that results in an injustice to Doughty.
To defeat CSXT’s properly supported motion for summary judgment, Doughty was required to provide specific facts showing a genuine issue for trial. After review of the record, we find that die district court’s grant of summary judgment in favor of CSXT was correct.
Affirmed.
Six, J., not participating.
Robert H. Miller, C.J. Retired, assigned. | [
-112,
-40,
-4,
61,
24,
99,
50,
26,
81,
-93,
-89,
83,
-49,
71,
13,
63,
-25,
119,
-13,
59,
119,
-125,
87,
-86,
-46,
-77,
-7,
93,
-72,
75,
100,
-34,
77,
16,
46,
-43,
-26,
-47,
-52,
28,
-24,
4,
74,
-24,
89,
1,
52,
42,
20,
79,
33,
-124,
115,
42,
25,
75,
13,
39,
125,
-96,
-16,
-7,
-118,
5,
119,
16,
33,
4,
-98,
-89,
-40,
30,
-120,
-79,
33,
40,
83,
-74,
-122,
-12,
41,
-103,
12,
98,
99,
33,
21,
-89,
-2,
-72,
14,
-34,
-97,
-90,
-127,
56,
35,
11,
-106,
29,
124,
4,
6,
126,
-6,
5,
31,
77,
-125,
-122,
-106,
-96,
-83,
100,
-34,
-125,
-17,
-113,
-126,
97,
-38,
-94,
93,
7,
122,
-105,
7,
-34
]
|
The opinion of the court was delivered by
Six, J.:
This case involves a post-divorce change of primary residential custody. Barbara Bradley-Copple objects to the transfer of the parties’ two minor children to Dean Bradley, the children’s father. The change resulted from Barbara’s move from the Wichita area, where the children and both parents lived, to Washington, D.C.
In an unpublished opinion filed November 10, 1994, the Court of Appeals affirmed the change of custody but declined to address some of Barbara’s contentions because she failed to object to the district court’s findings. The Court of Appeals invited us to review apparently conflicting precedents regarding district court findings and the necessity of objecting in the district court to preserve the issue on appeal. The invitation focuses on the proper application of K.S.A. 60-252 and Supreme Court Rule 165 (1994 Kan. Ct. R. Annot. 169). A similar invitation was extended by Judge (now Justice) Abbott in 1982. See In re Lett & Jackson, 7 Kan. App. 2d 329, 337, 640 P.2d 1294, rev. denied 231 Kan. 800 (1982) (Abbott, J., concurring). Our jurisdiction is under K.S.A. 20-3018(b). We granted Barbara’s petition for review.
THE ISSUES
The Court of Appeals’ invitation leads us to consider whether, in actions covered by K.S.A. 60-252 and Rule 165, a party must object to the district court’s findings to allege deficiencies in such findings on appeal, and if so, whether there are any exceptions to that rule.
We also consider whether: (1) Barbara was entitled to a statutory presumption in favor of retaining custody under K.S.A. 60-1610(a)(3)(A); (2) the district court’s findings were supported by sufficient evidence; (3) the district court abused its discretion in giving Dean primary custody; and (4) Barbara’s “refusal” to sign the journal entry was a sufficient “objection” to the district court’s findings to preserve a challenge to the findings on appeal.
We find no error and affirm.
FACTS
Barbara and Dean divorced in 1988. They had two children, Boone and Brittany, who then were 8 and 4. Both parents stipulated that the other was a fit and proper parent, capable of sharing in a joint-custody arrangement. They could not, however, initially agree on who would have primary residential custody of the chil dren. The divorce decree awarded primary residential custody to Barbara, in a joint-custody arrangement. The joint-custody arrangement worked well from 1988 to early 1993, while both parents lived in the Wichita area.
Barbara gave notice to Dean in March 1993 that she intended to move with the children .to Washington, D.C. She had accepted a new job and was involved in a relationship, which later resulted in marriage. Dean responded by fifing a motion to change primary residential custody of the children under K.S.A. 60-1610(a)(2). He alleged that Barbara’s move out of state was a material change of circumstances, see K.S.A. 60-1620(c), and that the best interests of the children would be served by staying with him in Wichita.
Barbara and Dean agreed to have a licensed psychologist interview all family members and make a recommendation as to the best interests of the children. The psychologist recommended that the children remain in Wichita with their father. Both parents were described as good parents, and the children’s loyalty to both parents was noted. The psychologist based his conclusion mainly on “the picture of proven stability” for the children in Wichita with their schools, friends, and relatives.
Barbara rejected the recommendation. The district court heard testimony from Barbara and Dean and considered the report. At the conclusion of the hearing, primary residential custody of the children was transferred to Dean. The district court later filed a journal entry setting forth its findings and conclusions.
Barbara, in the Court of Appeals, challenged the adequacy of the district court’s findings and the sufficiency of the evidence supporting the findings. She also argued that a statutory presumption under K.S.A. 60-1610(a)(3)(A) applies, favoring a finding that the children should remain with her because of the “agreement” in the divorce decree giving her primary custody.
The Court of Appeals, in affirming, held: (1) the statutory presumption of K.S.A. 60-1610(a)(3)(A) did not apply, and (2) the district court “implicitly” made the required finding of a material change of circumstances.
The Court of Appeals then turned to apparent ambiguities in the law regarding the need to object to findings under K.S.A. 60- 252 to raise inadequacies in the findings on appeal. Upon concluding that we require objections to findings at the district court level, the Court of Appeals held that it “cannot consider [Barbara’s] arguments on appeal” and “need not consider other issues raised.” Consequently, the Court of Appeals did not reach Barbara’s contention that the evidence was insufficient to support the district court’s findings.
DISCUSSION
We are reviewing an order involving the custody of children. Certain basic principles guide our analysis. “The trial court is in the most advantageous position to judge how the interests of the children may best be served. [Citations omitted.] . . . The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion.” Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978).
Barbara’s petition for review also raises several questions of law. We have unlimited review of any conclusions of law reached by the district court or the Court of Appeals. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Statutory Presumption
Barbara questions the Court of Appeals’ conclusion that she was not entitled to a presumption under K.S.A. 60-1610(a)(3)(A) in favor of retaining custody. In order for the presumption to apply, the parties must “have a written agreement concerning the custody or residency of their minor child.” K.S.A. 60-1610(a)(3)(A). The presumption favors a finding that a child’s best interests are served by following the terms of the parents’ agreement. Barbara contends that their 1988 divorce decree included such an agreement. The Court of Appeals reviewed the record and concluded that Barbara and Dean disputed custody in 1988. Consequently, the statutory presumption did not apply.
The divorce decree is not styled as an agreement between Barbara and Dean. The decree, however, incorporated an “agreed upon” visitation schedule, which provided that the “agreement” was to be reviewed by the parties in one year. Thus, it is possible that Barbara and Dean resolved their disputes on custody and visitation prior to the entry of the divorce decree. Both Barbara and Dean signed the divorce decree.
Even if the 1988 divorce decree included “a written agreement concerning the custody or residency of [the] minor children],” K.S.A. 60-1610(a)(3)(A) still would not apply to the present dispute. The agreement reflected in the divorce decree contains no contingencies for one party moving out of state, and there is no evidence that either party was contemplating such a move in 1988. Consequently, with respect to the question before the district court in the case at bar — -whether the best interests of the children in 1993 would be served by moving with their mother or staying with their father — Barbara and Dean had reached no agreement. K.S.A. 60-1610(a)(3)(A) provides no basis for reversal.
District Court's Findings and Conclusion
K.S.A. 60-1610(a)(2)(A) allows a court to change a prior custody order “when a material change of circumstances is shown.” Determinations of custody or residency of a child must be made according to the “best interests of the child.” K.S.A. 60-1610(a)(3). “All relevant factors,” including but not limited to seven factors listed in K.S.A. 60-1610(a)(3)(B), are to be considered.
In her brief to the Court of Appeals, Barbara stated the issue as follows:
“Did the Court err in changing the custody of the two minor children from [Barbara to Dean] without any legal finding or evidence of ‘material change of circumstances’ or any legal finding or evidence concerning the ‘best interests of the children’ as required by K.S.A. 1990 Supp. 60-1610, et. seq. [?]” (Emphasis added.)
She argued that the district court failed to affirmatively state it had found a “material change of circumstances” and failed to state it had considered each enumerated factor in K.S.A. 60-1610(a)(3)(B) in determining the “best interests” of the children. In addition, however, Barbara also argued that “based upon the evidence ’ the district court could not have found a material change of circumstances, and urged “a reversal based upon the evidence before this Court.” (Emphasis added.)
The Court of Appeals did not review the sufficiency of the evidence supporting the district court’s findings and conclusions. After holding that tire district court “implicitly found a material change of circumstances, as required,” the Court of Appeals considered whether Barbara’s failure to object to the district court’s findings precluded her from challenging such findings on appeal. The Court of Appeals characterized as conflicting precedents our holdings in Henrickson v. Drotts, 219 Kan. 435, Syl. ¶ 2, 548 P.2d 465 (1976) (requirements of K.S.A. 60-252 and Supreme Court Rule 116 [now 165] “may not be waived by the district court or by the parties to tire action”), and Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, Syl. ¶ 2, 598 P.2d 188 (1979) (in the absence of an objection first made in the trial court, omissions in findings will not support reversal because the trial court is presumed to have found the facts necessary to support its judgment).
The Court of Appeals applied the Celco rule to the instant case because we recently did so in Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993). The Court of Appeals held that review of the “other issues raised” was foreclosed because Barbara failed to object to the district court’s findings.
We do not agree with closing off all further review. K.S.A. 60-252(b) provides that “the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in district court an objection to such findings or has made a motion to amend them or a motion for judgment.” Thus, Barbara is entitled to appellate review of the sufficiency of evidence supporting the findings — an issue she clearly has raised.
The record contains more than sufficient competent evidence to support the district court’s findings and conclusions with respect to a material change of circumstances and the best interests of the children. Barbara admitted to having moved to Washington, D.C. She sought to have the children move with her. The prospect of moving the children out of state, which would necessarily end the existing co-parenting arrangement, was understood by all parties to be a material change of circumstances under the meaning of the statute. See K.S.A. 60-1620(c). Barbara never contended otherwise at the district court level.
As for the evidence supporting the decision of what was in the best interests of the children, the district court heard testimony from both parents and reviewed the report of the independent psychologist who had interviewed both parents and both children. Barbara’s counsel admitted that there is “no question . . . that Dean is a caring parent and that he is a fit parent to have these children.” Dean testified about his employment, his home being close to the children’s schools, the children’s friends in the neighborhood, and his “good support system” of friends, neighbors, and his parents (the children’s grandparents), among other things. The only factor in K.S.A. 60-1610(a)(3)(B) that was not fully considered was the children’s desire as to their custody or residency. However, Barbara and Dean expressly requested that the psychologist not ask the children any questions that might make them feel as though they had to choose. Nevertheless, the psychologist still made observations concerning the children’s feelings about their parents and their desire to spend more equal amounts of time with each.
Barbara advanced good arguments and introduced evidence showing the advantages for the children in moving to Washington, D.C., and in continuing to live with her, as they had since the divorce. The trial judge admitted to “racking [his] brain” because of the difficulty of the decision.
Our function is not to delve into the record and engage in the emotional and analytical tug of war between two good parents over two good children. The district court was in a better position to evaluate the complexities of the situation and to determine the best interests of the children. Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court’s decision must be affirmed. As there were good reasons and sufficient evidence supporting the district court’s decision, and the district court understood and applied the correct, controlling legal principles, we find no abuse of discretion.
Barbara’s arguments about deficiencies in the oral and written findings made by the district court are not persuasive. Barbara’s complaints about the adequacy of the district court’s findings are basically complaints about the result. This is not a case where the district court issued a general finding in favor of Dean, without explanation. Rather, the district judge gave an oral explanation, and then filed a four-page journal entiy summarizing his decision. Both in the evidentiary hearing and in its written findings, the district court correctly stated that the controlling legal standard was the best interests of the children. The finding of material change of circumstances was, as the Court of Appeals held, implicit in the district court’s findings.
Consequences of Barbara’s Failure to Object to District Court’s Findings
Finally, although we have addressed the merits of Barbara’s appeal, it is appropriate to accept and consider the Court of Appeals’ invitation to clarify the rules concerning which arguments are improperly raised on appeal without an objection to the district court’s findings. The Court of Appeals identified what it views as a conflict between two of our prior opinions, Henrickson, 219 Kan. 435, and Celco, 226 Kan. 366, regarding the operation of K.S.A. 60-252 and Supreme Court Rule 165.
K.S.A. 60-252 sets forth the rules and requirements relating to a district court’s findings in actions tried without a jury. Rule 165 makes clear that K.S.A. 60-252 applies to “all contested matters submitted to a judge without a jury.” The statute and the rule join to require that trial judges state the legal principles controlling their decisions and also the controlling facts. There is no question that K.S.A. 60-252 and Rule 165 apply to the decision granting the change of custody in the present case.
K.S.A. 60-252 was originally enacted as part of the Code of Civil Procedure that took effect in 1964. L. 1963, ch. 303, 60-252. Before 1964, in actions tried to the court, the trial court was permitted to make a general finding for the plaintiff or defendant, with no affirmative duty to state its findings of fact or conclusions of law “unless one of the parties request it.” G.S. 1949, 60-2921. In contrast, K.S.A. 60-252(a) provides that the trial court “shall find, and either orally or in writing state, the controlling facts. . . . Requests for findings are not necessary.”
We have observed that the rules requiring more specific findings are “designed as an aid to the integrity of the decision,” Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 2, 512 P.2d 442 (1973), and are “for the benefit of this court in facilitating appellate review.” Henrickson, 219 Kan. 435, Syl. ¶ 2.
In cases decided before 1977, including Henrickson, we emphasized the “mandatory” nature of the rules requiring that district courts state the controlling facts and legal principles controlling their decisions. See, e.g., Henrickson, 219 Kan. 435, Syl. ¶ 2; Mies v. Mies, 217 Kan. 269, Syl. ¶ 1, 535 P.2d 432 (1975); Froelich v. Adair, 213 Kan. 357, 359, 516 P.2d 993 (1973); Read v. Estate of Davis, 213 Kan. 128, Syl. ¶ 1, 515 P.2d 1096 (1973); Duffin, 212 Kan. 772, Syl. ¶ 2. Thus, in cases where the district court’s findings were too “general” or were otherwise inadequate for appellate review, we vacated the judgments and remanded for more specific findings, Henrickson, 219 Kan. at 441; Read, 213 Kan. at 136, or, occasionally, new trials. Mies, 217 Kan. at 274-75 (new trial required because issues could not be resolved on the record from the first trial); Froelich, 213 Kan. at 359 (new trial required because judge who heard the case was no longer an active judge).
In none of the pre-1977 cases did we suggest thát it was necessaiy for a party to object to the findings of the district court to allege deficiencies in such findings on appeal. We rarely, if ever, noted whether such objections had been made. In Henrickson, however, the prevailing party (plaintiff-creditor) in the district court argued that the appellant (defendant-debtor) should be foreclosed from challenging the district court’s findings as too general because the appellant acquiesced to the “summary procedure” used to decide the case. 219 Kan. at 440. We refused to apply the procedural default rule urged by Henrickson, however, holding instead that K.S.A. 60-252 and Rule 116 (now Rule 165) requiring more specific findings may not be waived by the district court or by the parties. 219 Kan. at 441.
The next time we considered an appeal alleging deficient findings by a district court was in Celco, 226 Kan. 366. Celco did not mention Henrickson. In Celco, the district court entered a default judgment for the plaintiffs, in an action alleging fraud and breach of an equipment rental agreement, after the defendants failed to appear at trial. 226 Kan. at 367. On appeal, the defendants contended, among other things, that the district court failed to make findings and conclusions according to K.S.A. 60-252 and Rule 165. We. noted that such findings were not necessary because Celco was a default judgment case governed by K.S.A. 60-255. In addition, we noted that the defendants had made no objection to the absence of findings at the trial level, and cited a comment from Gard’s Kansas C. Civ. Proc. § 60-252 (1963) suggesting that the lack of objection precluded appeal on that ground. 226 Kan. at 369. Gard relied solely on four pre-code cases that dealt with the former statute governing bench trials. See Comment, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-252 (1979). As we have noted, the old statute, G.S. 1949, 60-2921, is completely opposite to 60-252. The old statute required that in bench trials, courts need only make general findings unless a party requested specific ones. The adoption of the 1964 code, which included 60-252, repealed 60-2921. We incorporated our Celco holding into the syllabus as follows:
“In the absence of an objection first made in the trial court, omissions in findings will not be fatal to a judgment since the trial court is presumed to have found all of the facts in issue necessary to support the judgment.” Celco, 226 Kan. 366, Syl. ¶ 2.
Celco marks the first time we suggested that objections to findings are necessary to challenge deficiencies in such findings on appeal.
No objection must be made in the district court to challenge the sufficiency of the evidence supporting a court’s findings and conclusions. See K.S.A. 60-252(b). The type of challenges foreclosed on appeal by the lack of an objection under Celco are those that pertain to the form and specificity of the oral or written findings.
Burch v. Dodge, 4 Kan. App. 2d 503, 507, 608 P.2d 1032 (1980), recognized the apparent change in the law ushered in by Celco. The Celco rule was later criticized as dictum and relying on outdated precedent. See In re Lett & Jackson, 7 Kan. App. 2d 329, 338, 640 P.2d 1294, rev. denied 231 Kan. 800 (1982) (Rees, J., dissenting). Since Celco, we have consistently applied the require ment that parties must object to findings at the district court level to challenge the findings on grounds other than the sufficiency of the evidence. See Tucker v. Hugoton Energy Corp., 253 Kan. at 378 (findings challenged for failing to set forth mathematical procedure used to arrive at income and expenses for gas wells); Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 498, 781 P.2d 1077 (1989) (findings challenged as failing to comply with K.S.A. 60-252 and Rule 165), cert. denied 495 U.S. 932 (1990); Green v. Geer, 239 Kan. 305, 310-11, 720 P.2d 656 (1986) (findings challenged as omitting a ruling on indemnity claim); Thurner v. Kaufman, 237 Kan. 184, 190, 699 P.2d 435 (1985) (findings did not include specific findings that damages were inadequate or that cancellation of lease was necessary to prevent injustice); see also Scharfe v. Kansas State Univ., 18 Kan. App. 2d 103, 110, 848 P.2d 994, rev. denied 252 Kan. 1093 (1992) (findings challenged as failing to comply with K.S.A. 60-252); Authors’ Comments, 3 Vernon’s Kansas C. Civ. Proc. § 60-252.3, p. 267 (1964).
The reason for requiring an objection at the district court level is obvious: A timely objection brings the alleged deficiency to the attention of the district court, which can then amend, clarify, or change its decision if necessary, before the parties go to the expense and delay of an appeal. See In re Lett & Jackson, 7 Kan. App. 2d at 335-37 (Abbott, J., concurring); Burch, 4 Kan. App. 2d at 507. The rule is designed to make justice more swift, more efficient, and less expensive. By taking advantage of the 10-day period for filing a motion to amend the findings and, if necessary, a motion for new trial, see K.S.A. 60-252(b), a party, on the losing end of a district court’s ruling might avoid an appeal by pointing out a mistake to the district court.
We recognize that it is the trial court’s duty in the first instance to make findings in compliance with K.S.A. 60-252 and Rule 165. If the “trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the court’s findings,” thus precluding meaningful appellate review, we may remand for additional findings and conclusions although none of the parties objected in the trial court. Burch, 4 Kan. App. 2d at 504.
We resolve the apparent conflict between Hendrickson and Celco by endorsing the following rule: In all actions under K.S.A. 60-252 and Rule 165, when the trial court has made findings, it is not necessary to object to such findings to question the sufficiency of the evidence on appeal. However, if the findings are objectionable on grounds other than sufficiency of the evidence, an objection at the trial court level is required to preserve the issue for appeal. If, however, the appellate court is precluded from extending meaningful appellate review, the case may be remanded although no objection was made in the trial court.
Refusal to Sign Journal Entry
Barbara questions in her petition for review whether her “refusal to sign the Journal Entry” constitutes a sufficient “objection” to the district court’s findings to avoid the Celco bar to appellate review. Although she asks the question in the context of seeking review of her “arguments regarding the sufficiency of evidence,” for which no objection is necessary, the question is nevertheless worth addressing, briefly. The answer to Barbara’s question is, “No.”
The purpose of requiring parties to object in the trial court is to provide the trial court with an opportunity to correct defects in its findings or, if necessary, change its mind about the outcome before the case is appealed. An unexplained “refusal” to sign a journal entry, assuming a signature was even requested, does not inform the trial court of the specific objections to the findings that the pariy has in mind.
Affirmed. | [
-79,
-24,
-43,
126,
26,
97,
58,
-72,
96,
-91,
103,
115,
-21,
-21,
5,
105,
18,
45,
64,
120,
-59,
-73,
87,
-56,
118,
-13,
-79,
-39,
-77,
-36,
108,
118,
77,
96,
-102,
-11,
70,
-54,
-51,
-100,
-90,
7,
-85,
85,
81,
-126,
48,
99,
26,
15,
113,
-33,
-73,
40,
24,
-42,
-120,
45,
27,
-66,
80,
-8,
-118,
7,
95,
6,
-77,
16,
-104,
-91,
88,
47,
-104,
56,
9,
-20,
-77,
-106,
-118,
118,
75,
-103,
-119,
113,
98,
1,
-84,
-57,
-68,
-120,
110,
120,
-67,
-26,
-39,
88,
96,
1,
-74,
-67,
117,
86,
11,
124,
-25,
13,
31,
-12,
-116,
-113,
-38,
-79,
13,
49,
10,
1,
-13,
-91,
16,
113,
-63,
-32,
93,
-45,
50,
-111,
-82,
-74
]
|
Per Curiam:
Respondent was indefinitely suspended from the practice of law July 8, 1994. See In re Jenkins, 255 Kan. 797, 877 P. 2d 423 (1994). This is an additional original proceeding in discipline filed by the office of the Disciplinary Administrator against Howard L. Jenkins, II. Complaint No. B5856 was heard before a panel of the Kansas Board for Discipline of Attorneys (Board). The facts, as determined by the Board, are not disputed by respondent. The exhibits were admitted without objection.
The following pertinent findings were made by the panel in this matter:
“Respondent basically admitted the allegations of the complaint herein and stipulated that said allegations constitute violations of Model Rules of Professional Conduct 1.15 regarding safe keeping of property, 1.13 regarding diligence and 1.14 regarding communication. Respondent does disagree, however, with complainant’s claims regarding the identification and valuation of certain items of personal property in question.”
“FINDING OF FACTS
“Having reviewed and considered the evidence presented as well as the statements and arguments of counsel and the respondent the panel unanimously finds the following facts have been established by clear and convincing evidence.
“1. Respondent is an attorney at law and his Kansas Attorney Registration Number is 10525. . . .
“2. In 1989 the respondent undertook to represent the complainant, Gary A. Brooks, in a divorce action. Following a trial a decree was entered wherein complainant was to receive certain items of personal property.
“3. Complainant’s ex-wife delivered to the respondent certain items of said personal property. However, the respondent did not inspect, inventoiy or receipt for such items received and they were apparently placed in a garage at the home of respondent’s wife. Respondent claimed to be also involved in a divorce action and claimed to have no access to the garage at that point in time.
“4. At some later time complainant did receive certain items of the subject property but claims that certain other items have not been returned. Throughout the relevant time period complainant experienced great difficulty in communicating with respondent and obtaining responses to his inquiries regarding his property.
“5. The complainant acknowledged that his ex-wife originally claimed to have returned property which was not, in fact, returned and the panel is unable to make specific findings with regard to any items of personal property which respondent may have received and failed, for whatever reasons, to deliver to complainant.”
The panel’s conclusions of law included the following:
“6. Respondent’s conduct violates the following Kansas Rules of Professional Conduct:
“a. Rule 1.15 [1994 Kan. Ct. R. Annot. 332] (Safekeeping of client’s property);
“b. Rule 1.3 [1994 Kan. Ct. R. Annot. 297] (Diligence);
“c. Rule 1.4 [1994 Kan. Ct. R. Annot. 302] (Communication).
“The panel takes notice of the prior complaints and dispositions in case numbers B4902, B4984, B5120, B5131, B5145, B5293, B5295 [see 255 Kan. 797] and an earlier complaint for which respondent received informal admonition in August of 1990. The panel takes further notice of the mitigating circumstances specified in its report concerning the above complaints. The respondent, as a result of such prior cases, is presently under an indefinite suspension ....
“It is the unanimous recommendation of the panel that respondent be given the sanction of indefinite suspension from the practice of law. Such suspension shall run concurrently with and shall be upon the same terms and conditions as the indefinite suspension ordered in Docket Number 71,246. [See 255 Kan. 797.]
“The panel notes that the instant complaint arose during the same time period as the complaints contained in Docket Number 71,246. The panel therefore recommends that the date of respondent’s eligibility to apply for readmission to the Bar be determined by the indefinite suspension date utilized in Docket Number 71,246.
“It is further recommended that respondent pay the cost of this action and that he be directed to reasonably negotiate with the complainant in an attempt to resolve any remaining controversy regarding return of personal property.”
DISCUSSION
Jenkins did not file exceptions to the findings, conclusions, and recommendations as embodied in the final hearing report of the panel.
It is the responsibility of this court to examine the evidence and determine for itself the discipline to be imposed.
We find there is clear and convincing evidence establishing the violations determined by the panel. The misconduct in the instant case does not involve an isolated instance or an inadvertent error. Respondent has repeatedly failed to follow through on his responsibilities as a lawyer. We adopt the recommendation of the panel that respondent receive indefinite suspension from the practice of law, such suspension to run concurrent with and upon the same terms and conditions as the indefinite suspension ordered in In re Jenkins, 255 Kan. 797. We shall consider additional requirements if respondent seeks reinstatement under Supreme Court Rule 219 (1994 Kan. Ct. R. Annot. 223).
MRPC 1.15 (1994 Kan. Ct. R. Annot. 332) (safekeeping property) sets out guidelines for lawyers when holding clients’ property of any form. We emphasize that Rule 1.15 also applies to tangible personal property.
“(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
“(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
“(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
“(d) Preserving identity of funds and property of a client.
“(2) The lawyer shall:
(i) Promptly notify a client of the receipt of the client’s funds, securities, or other properties.
(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(in) Maintain complete records of all funds, securities, and otherproperties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them.
(iv) Promptly pay or deliver to the client as requested by a client the fund, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
“(e) Every Kansas lawyer engaged in the private practice of law in Kansas shall, as a part of his or her annual registration, certify to the following:
“ 1 am familiar with and have read Kansas Supreme Court Rule 226, MRPC 1.15, and I and/or my law firm comply/complies with MRPC 1.15 pertaining to preserving the identity of funds and property of a client.’ ” (Emphasis added.)
The comment to Rule 1.15, in pertinent part, offers further guidance in handling personal property of a client.
“A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyer’s business and personal property and, if monies, in one or more trust accounts. . . .
“Third parties, such as a client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client and accordingly, may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.
“The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow- agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.
“Rule 1.15 of the Model Rules of Professional Conduct requires that lawyers in the practice of law who are entrusted with the property of law clients and third persons must hold that property with the care required of a professional fiduciary. The basis for Rule 1.15 is the lawyer’s fiduciary obligation to safeguard trust property and to segregate it from the lawyer’s own property, and not to benefit personally from the possession of the property.” (Emphasis added.)
We adopt the panel’s recommendation that respondent be directed to reasonably negotiate with the complainant in an attempt to resolve any remaining controversy regarding return of personal property.
It Is Therefore Ordered that Howard L. Jenkins, II, be suspended from the practice of law indefinitely in accordance with Supreme Court Rule 203(a)(2) (1994 Kan. Ct. R. Annot. 189) for his violations herein. Such suspension shall run concurrent with and shall be upon the same terms and conditions as the indefinite suspension ordered in In re Jenkins, 255 Kan. 797. The date of respondent’s eligibility to .apply for readmission to the bar shall be determined by the indefinite suspension date utilized in In re Jenkins, 255 Kan. 797.
It Is Further Ordered that although Howard L. Jenkins, II, has been on inactive status since November 8, 1991, he shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217).
It Is Further Ordered that respondent shall report the status of his attempted resolution of the controversy with complainant to the Disciplinary Administrator on or before February 8, 1996.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent. | [
-112,
-24,
-19,
93,
-120,
-31,
58,
-88,
97,
-47,
119,
-45,
-67,
-62,
25,
107,
90,
105,
113,
107,
-57,
-74,
127,
-29,
70,
-1,
-72,
93,
-71,
111,
-32,
-44,
76,
48,
-126,
-11,
66,
-120,
-43,
28,
-114,
7,
27,
-20,
-39,
-64,
-76,
103,
16,
13,
-111,
-98,
51,
46,
25,
70,
9,
104,
107,
-84,
81,
-63,
-69,
21,
127,
22,
-125,
5,
-100,
7,
88,
107,
-100,
56,
-128,
-88,
115,
-106,
-122,
112,
79,
-117,
9,
102,
98,
34,
-119,
-91,
-68,
-120,
15,
-80,
-97,
-90,
-103,
80,
73,
-127,
-74,
-68,
101,
82,
33,
-4,
100,
69,
29,
108,
15,
-17,
-42,
-111,
15,
37,
-52,
-118,
-17,
-95,
32,
85,
-99,
-90,
93,
23,
58,
-101,
-114,
-79
]
|
The opinion of the court was delivered by
Six, J.:
This first-degree murder case was tried to the court at defendant’s request. Joseph D. Johnson was convicted of first-degree murder, K.S.A. 1992 Supp. 21-3401; conspiracy to commit first-degree murder, K.S.A. 21-3302; aggravated burglary, K.S.A. 1992 Supp. 21-3716; contributing to a child’s misconduct, K.S.A. 21-3612(e); solicitation, K.S.A. 21-3303; unlawful discharge of a firearm at an occupied dwelling, K.S.A. 1992 Supp. 21-4219(b); and aggravated intimidation of a witness, K.S.A. 21-3833.
The issues are whether: (1) the lesser included offenses of involuntary manslaughter, voluntary manslaughter, and second-degree murder should have been considered; (2) the trial court applied the wrong standard in evaluating evidence of self-defense; (3) there was sufficient evidence to convict Johnson of first-degree murder, aggravated burglaiy, and aggravated intimidation of a witness; (4) Johnson was deprived of a fair trial and of his right of confrontation because of his poor hearing; and (5) the trial court erred in admitting Johnson’s confession upon finding that Johnson knowingly and voluntarily waived his Miranda rights.
Our jurisdiction is under K.S.A. 1994 Supp. 22-3601(b)(1) (a maximum sentence of life imprisonment has been imposed).
We find no error and affirm.
FACTS
The first link in the chain of events that set the stage for Johnson’s convictions began in June 1992 in the home of the Waltons, Robert and Betty (now Betty Parrett). Robert threw a cereal bowl at Betty, striking her in the head. Robert was charged with domestic battery. Betty began living with another man at 518 S.W. Lincoln in Topeka. On August 29, 1992, in what later became a fateful decision, they moved because of fear for their safety. Betty testified in September 1992 against her husband on the domestic battery charge. Robert was convicted. Robert and Betty were divorced in December 1992.
After the cereal bowl incident and before his September trial, Robert contacted Johnson about finding someone to “scare” or “kill” Betty. Johnson said he knew someone who could do it. Johnson approached 19-year-old Alex Walker with a proposal to “do some stuff for some money.”
Johnson put Walker in contact with Robert. Robert offered Walker $500 to shoot Betty, or to hurt her “real bad.” After several meetings, Walker agreed to do a “drive-by” shooting for $350. Although the deal was for a “drive-by,” Robert still wanted Walker to shoot Betty and “kill her, or do what you got to do to do it,” and to also shoot Betty’s boyfriend if he was “in the way.”
After the deal was made, Johnson told Walker he would “have the money” when “the job is done.” Apparently some confusion arose about what Walker had agreed to do. Walker believed he was only supposed to “shoot the house up” for $350. Walker said John son instructed him to wait until 2:00 or 3:00 a.m. to do the shooting, and to do it “fast.”
On August 21, 1992, Walker and two teenage companions drove by 518 S.W. Lincoln and fired three shots at the house with a handgun; one shot entered the house through the front door, two others through a front window. No one was injured. Immediately after the shooting, Walker and the teenagers found Johnson in his car. Johnson paid them the $350.
The next day, Johnson reported to Robert that the drive-by was done and that the boys had been paid. Robert was upset because Betty was not shot. Robert wanted either Betty shot or his money back. Johnson said he could find someone to do it.
Several days later, Robert told Johnson he would pay $1,000 to have Betty killed. Johnson said he could find a teenager who would do it. Johnson approached 16-year-old Dominic Love, telling him a man was willing to pay to have his ex-wife or his ex-wife's boyfriend “or whoever was in the house killed.'' Love was told he would be paid “a thousand or 600, something like that.” Love agreed to do it.
Johnson brought Love to a Kwik Shop on August 30, 1992, where Robert was waiting. Robert gave Johnson approximately $1,000. Johnson said he would let Love use his .38 revolver. Johnson and Love drove together to 518 S.W. Lincoln, where they believed they would find Betty and her boyfriend. They were unaware that the day before, Betty and her boyfriend had moved out. Mr. Chang Nam Kim initiated his brief, doomed tenancy by moving into 518 S.W. Lincoln on Sunday morning, August 30.
Johnson dropped Love around the comer from the house. Love’s instructions, provided by Johnson, were to “shoot anybody who was in the house.” Love was told that Betty was a “chubby, fat white woman,” and the boyfriend was a “chubby, fat . . . white dude.”
Love knocked on the front door, and Mr. Kim answered. Love told Mr. Kim to “back up.” When Mr. Kim pointed at Love’s gun, Love shot him one time in the head, killing him. Love entered the house “to see if anyone else was in there.” He checked only the living room before running out because he was “scared.”
Love’s testimony explaining the shooting of Mr. Kim was equivocal. He first stated, “I thought that he was going to grab the gun, but he wasn’t doing nothing but pointing at the gun, so I shot him.” When asked why he shot Mr. Kim, Love stated, “Because he was in the house. I was told to shoot anybody who was in the house.” On cross-examination, in response to a series of leading questions from defense counsel, Love answered, “Yeah” to the question, “You thought [Mr. Kim] was going to grab the gun, . . . [a]nd so, you acted in self-defense and shot him, correct?” On redirect, the prosecutor challenged Love on whether he truly shot Mr. Kim in self-defense, and Love responded, “I never said it was self-defense.” Love later testified that when Mr. Kim answered the door, he thought Mr. Kim was “just one of the people in the house that’s supposed to be shot.”
After the shooting, Love met Johnson around the comer. Johnson asked if Love did it, and Love replied, “I got somebody.” Johnson paid Love $300.
The following morning, police arrested Johnson at his home and took him to the station for questioning. Officer Sams testified that he read Johnson his Miranda rights and that Johnson waived those rights. Johnson spoke with police for approximately an hour and a half regarding his involvement in the drive-by shooting and homicide. The interview was videotaped, but the videotape is not included in the record on appeal.
Johnson, who is 74 years old, apparently has some difficulty hearing. Before trial, he filed a motion to suppress his statement. He contended his impairment prevented him from hearing and understanding the Miranda warning, thus preventing him from knowingly and voluntarily waiving his Fifth Amendment rights. The trial court, in denying the motion to suppress, viewed the videotape and heard testimony of Officer Sams and an audiologist who performed hearing tests on Johnson.
DISCUSSION
Contributing to a Child’s Misconduct
Initially, we observe that Johnson asserts that the State failed to prove that Love was a “child” within the definition of the crime of contributing to a child’s misconduct or deprivation, K.S.A. 21-3612(e): “causing or encouraging a child under 18 years of age to commit an act which, if committed by an adult, would be a felony.” (Emphasis added.) Love was 16 when he committed the offenses in question. However, Johnson asserts that Love was certified as an adult in Love’s criminal prosecution. Thus, Johnson claims that Love was not a “child” and that his conviction under K.S.A. 21-3612 therefore must be set aside. Johnson failed to raise this defense at trial and therefore waives it. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).
Lesser Included Offenses
Johnson next contends that the trial court erred by failing to consider the lesser included offenses of involuntary manslaughter, voluntary manslaughter, and second-degree murder. He cites K.S.A. 21-3107(3), which provides that a trial court has an affirmative duty to instruct a jury as to all lesser included offenses for which there is evidence to support a conviction on the included offense. We are reviewing alleged errors from a bench trial. Jury instructions are not at issue.
The trial court is presumed to know the law. Chance v. State, 195 Kan. 711, 715, 408 P.2d 677 (1965). Even if the evidence had supported instructions on lesser included offenses in a jury trial, the trial court is presumed to have followed such instructions in a bench trial. See Com. v. Gonzales, 415 Pa. Super. 564, 570, 609 A.2d 1368 (1992) (noting that the court in a bench trial is presumed to follow the instructions it would otherwise give to a jury).
The trial court, in the case at bar, found beyond a reasonable doubt that Johnson was guilty of first-degree murder. Consequently, it was not necessary for the trial court to consider any lesser included forms of homicide. See PIK Crim. 3d 56.01, 68.09; see also State v. Makin, 223 Kan. 743, 748, 576 P.2d 666 (1978) (reviewing a bench trial conviction of involuntary manslaughter, the Supreme Court found.that although vehicular homicide was a lesser included offense under the circumstances and the trial court would have had a duty to instruct the jury on that offense, the evidence was sufficient to support conviction of the greater offense).
The record contains ample evidence supporting the conclusion that a rational factfinder could have found Johnson guilty of first-degree murder beyond a reasonable doubt. See State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992).
Trial Court’s Finding on Self-Defense
Johnson reasons that the trial court applied the wrong standard to evaluate his affirmative defense that Love shot Mr. Kim in self-defense. In explaining its finding, the trial court first stated:
“The Court disagrees with defendant’s interpretation of the facts and the inferences taken therefrom . . . which infer that the shooter, Love, acted in self-defense. In this case, the evidence was weak and uncorroborated and the Court could not find beyond a reasonable doubt that there was . . . any legitimate self-defense theory.”
At that point, the prosecutor interrupted the trial court, stating, “[W]hen you said that . . . the evidence did not prove beyond a reasonable doubt the self-defense was proven, I don’t think that’s the standard.” The trial judge then acknowledged that he “may have misspoke” and said, “Basically I don’t feel that the evidence would support . . . self-defense.”
Johnson notes that the correct standard for reviewing a claim of self-defense is whether the asserted defense causes the trier of fact to have a reasonable doubt about the defendant’s guilt, not whether the defendant has proven self-defense beyond a reasonable doubt. See PIK Crim. 3d 52.08. Although the trial court’s first statement suggests that it applied the wrong standard, it acknowledged that it misspoke and emphasized the weakness of the evidence supporting Johnson’s claim that Love fired in self-defense. We conclude that the trial court applied the correct standard but simply misspoke in explaining its ruling.
Sufficiency of the Evidence: Aggravated Intimidation
Johnson next contends that there was insufficient evidence to support his conviction for aggravated intimidation of a witness or victim. Our standard of review requires us to consider only whether, after reviewing all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found Johnson guilty beyond a reasonable doubt. See Grissom, 251 Kan. 851, Syl. ¶ 4.
Intimidation of a witness or victim, as defined in K.S.A. 21-3832, includes “knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade: (a) Any witness or victim from attending or giving testimony at any civil or criminal trial.” Aggravated intimidation, as defined in K.S.A. 21-3833, includes intimidation of a witness or victim when: “(a) The act is accompanied by an express or implied threat of force or violence against a witness, victim or other person or the property of a witness, victim or other person.”
An essential element of aggravated intimidation of a witness or victim is that it be done “knowingly and maliciously.” Johnson contends “there is no evidence that the drive-by shooting was intended to prevent Betty from testifying at a proceeding.” He is only partly correct. There is no clear, direct evidence that Robert’s purpose in having Johnson arrange a drive-by shooting was to prevent or discourage Betty from testifying against him. Specific intent may be shown, however, by “acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.” State v. Pratt, 255 Kan. 767, 769, 876 P.2d 1390 (1994).
The record reveals that charges were filed against Robert for domestic battery on June 16, 1992. Betty was the victim. Robert’s trial was held on September 21, 1992. As the victim and only witness to the crime besides Robert, Betty could have been expected to, and did, testify at that trial. Meanwhile, between June 16 and September 21, 1992, Robert requested and Johnson helped in arranging both a drive-by shooting of Betty’s house and her attempted murder. The timing of Robert’s attempts to harm Betty suggest a connection with the criminal charges pending against him.
Johnson contends, however, that such timing is not enough for a rational factfinder to infer beyond a reasonable doubt that Robert intended to prevent Betty from testifying. Johnson reasons that Ralph Walton, Robert’s son, testified that his father wanted to kill his mother because “she left him and he didn’t like it.” However, Ralph also testified that his father told Johnson during their first meeting that he “wanted somebody to go by and scare my mom and see if they can kill her.”
When considering sufficiency of the evidence claims, we view the facts in the light most favorable to the prosecution. Grissom, 251 Kan. 851, Syl. ¶ 4. After charges were filed and before trial, Robert made two attempts to hire someone through Johnson to harm Betty. From the facts, a rational factfinder could find Johnson guilty as an aider and abettor to the crime of aggravated intimidation of a witness or victim. Johnson does not challenge the sufficiency of the evidence of his aiding and abetting activities.
Effect of Johnson’s Hearing Impairment
Johnson next contends that he was unable to hear parts of his trial and sentencing because of his hearing impairment. He contends that the trial court failed to take adequate measures to ensure that he could hear during all critical stages of his case. Johnson asserts that he was deprived of a fair trial, due process, and his Sixth Amendment right to confrontation.
The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a defendant the right of confrontation and the right to be present at all stages of a prosecution. State v. Cromwell, 253 Kan. 495, Syl. ¶ 7, 856 P.2d 1299 (1993). The Due Process Clause of the Fourteenth Amendment protects the defendant’s right to a fair trial. State v. Boone, 218 Kan. 482, Syl. ¶ 2, 543 P.2d 945 (1975), cert. denied 425 U.S. 915 (1976). Johnson cites two cases, State v. Staples, 121 N.H. 959, 437 A.2d 266 (1981), and People v. Rivera, 125 Misc. 2d 516, 480 N.Y.S.2d 426 (1984), which have recognized that a defendant’s inability to hear during certain stages of the prosecution, if not recognized and remedied through some special procedure, may violate the defendant’s rights under the Sixth and Fourteenth Amendments.
Johnson argues that a video monitor for the hearing impaired should have been used to help him. The choice of procedure to help a hearing-impaired defendant rests in the sound discretion of the trial court. The ultimate consideration is whether the defen dant’s constitutional rights to confrontation, to be present, and to a fair trial were preserved. See State v. Schaim, 65 Ohio St. 3d 51, 64, 600 N.E.2d 661 (1992).
Johnson is not deaf. He wears a hearing aid in one ear. Defense counsel informed the trial court of Johnson’s hearing impairment before trial. A motion for funds to pay for a hearing test to determine the extent of Johnson’s disability was granted. Dr. Manford Barber performed hearing tests on Johnson on April 30, 1993, nearly eight months after his arrest and his confession to the police, and approximately six weeks before trial.
Johnson raised the issue of his hearing impairment in a pretrial motion to suppress his confession on the basis that he did not hear or understand his Miranda warnings. Officer Sams testified at the hearing, and the court viewed the videotape of the confession. According to Officer Sams, only once during the approximately 90-minute interview did Johnson ask for a question to be repeated. Johnson was responsive to questions throughout the interview, suggesting that he heard or understood the questions asked. Dr. Barber testified that Johnson suffered some hearing loss in both ears, but with his hearing aid in his right ear, he could hear words at as low as 25 decibels, roughly equivalent to a whisper at a couple of feet. Officer Sams testified that Johnson was wearing a hearing aid when interrogated. The district court denied Johnson’s motion to suppress, explaining that “the defendant appeared fully capable of understanding and hearing the questions that were addressed to him.”
Beginning with the hearing on the motion to suppress and continuing through trial and post-trial proceedings, die trial court adopted a special procedure to ensure that Johnson would not be prejudiced because of his hearing impairment. Johnson was instructed repeatedly and meticulously to raise his hand if at any point he could not hear or understand any statement made by a judge, witness, or attorney. Until Johnson’s sentencing hearing, there were no significant interruptions in the proceedings due to Johnson’s hearing impairment. At one point, defense counsel decided to move the defense table and chairs closer to the witness stand. Another time, a post-trial hearing was momentarily interrupted while Johnson changed the battery in his hearing aid.
Through trial and two hearings on post-trial motions, neither Johnson nor his counsel alleged that his hearing impairment was causing him prejudice. Johnson was able to communicate effectively with his counsel and with the trial court when such communications took place on the record. On the night before the sentencing hearing, Johnson allegedly fell in the jail, which further impaired his hearing. When he appeared for sentencing, he would not respond to questions unless they were written down on a piece of paper. The trial court was unsure whether Johnson was “unable or unwilling” to respond; consequently, the hearing was adjourned to set up a video monitor for the hearing impaired. Johnson had difficulty understanding how to use the video equipment. The trial court again adjourned and rescheduled the sentencing hearing.
When Johnson’s sentencing hearing resumed in November 1993, oral communications with him were difficult, but not impossible. Johnson wore his hearing aid. The courtroom was arranged with special consideration to accommodate Johnson’s hearing impairment. The judge sat in the witness box, and Johnson and his counsel sat at a table which had been moved next to the witness box. Johnson was approximately six to eight feet from the trial judge. The trial court had also prepared a written sentencing worksheet, a copy of which was provided to Johnson so he could see in writing the sentence being imposed against him.
The record reflects that the trial court used special procedures throughout the proceedings to accommodate Johnson’s hearing impairment. Johnson alleges no specific prejudice as a result of these special procedures; he makes only general allegations that he was not “effectively present.” The trial court did not abuse its discretion. Johnson’s constitutional rights were not violated.
Denial of Motion to Suppress the Confession
Johnson argues that the trial court erred in denying his motion to suppress his “confession” and in admitting such statements at trial. He did not renew his objection at trial when his statements were introduced through the testimony of Officer Sams. Because Johnson failed to renew his objection at trial, this issue is not preserved for appeal. See State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993).
We observe, in any event, that the district court conducted a full evidentiary hearing on the motion and concluded that Johnson’s statement was freely and voluntarily given and that Johnson was able to hear and understand his Miranda warnings and the questions posed to him by the officers. The record supports the trial court’s finding.
Sufficiency of the Evidence: First-Degree Murder and Aggravated Burglary
Johnson contends that the State failed to introduce sufficient evidence to convict him of first-degree murder and aggravated burglary. We have held the evidence of first-degree murder to be sufficient. As for aggravated burglary, Johnson argues that “the entry of the house [by Love] did not occur until after the shooting. Aggravated burglary requires entry into a dwelling . . . with the intent to commit a felony.” See K.S.A. 1992 Supp. 21-3716.
A rational trier of fact could find beyond a reasonable doubt that Love entered 518 Lincoln with the intent to commit a felony, i.e., kill whoever else was there. Johnson does not contend that he did not aid and abet Love, and the record clearly supports the conclusion that he did. Thus, Johnson’s arguments concerning sufficiency of the evidence are not persuasive.
Affirmed. | [
-79,
104,
-3,
-98,
11,
96,
42,
-100,
98,
-29,
-94,
83,
-29,
-49,
8,
109,
58,
101,
84,
105,
-111,
-121,
59,
-55,
-74,
-5,
-39,
-43,
-77,
78,
-4,
-2,
72,
112,
14,
-43,
-94,
74,
-59,
84,
-116,
-121,
41,
-16,
70,
-126,
52,
58,
86,
15,
53,
46,
-13,
42,
22,
-57,
72,
44,
75,
-68,
80,
-79,
74,
21,
-116,
22,
-77,
-90,
-100,
5,
112,
63,
-104,
57,
8,
-24,
51,
-122,
-126,
116,
77,
-119,
12,
102,
98,
36,
-104,
-20,
105,
-119,
47,
119,
-67,
-89,
-103,
73,
69,
12,
-74,
-67,
102,
52,
43,
124,
-13,
71,
27,
108,
-118,
-54,
-108,
-79,
77,
48,
-62,
-8,
-21,
36,
33,
97,
-49,
-90,
92,
65,
82,
-101,
-49,
-76
]
|
Per Curiam.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Charles M. Tuley, of Atchison, an attorney admitted to the practice of law in Kansas. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and was represented by his attorney, John J. Ambrosio. The parties stipulated to the admission of all exhibits, stipulated that die respondent was in violation of the allegations as contained in the formal complaint, and further stipulated that the respondent was in violation of MRPC 1.5 (1994 Kan. Ct. R. Annot. 306) in that his fee charged to a client was unreasonable. The panel entered the following findings and conclusions.
Findings:
“That the respondent, an Attorney at Law, in Atchison, Kansas, with 22 years of practice was retained by Stephen Mauzey in 1993 to represent the estate of his mother, Helen I. Mauzey, in all matters relating to the estate. The parties did not discuss or agree as to a fee to be paid to the respondent by the estate for his services.
“An inventory and valuation was filed by the respondent in the Mauzey estate in May of 1993, which showed a valuation in the estate of $1,177,361. The respondent then obtained by petitions signed by Stephen Mauzey and by order of the District Court of Atchison County, Kansas, temporary fees for his services in the estate in the sum of $97,500.
“That in April of 1994, the respondent sent Mr. Mauzey a bill for an additional $18,950 for his services as attorney for the estate.
“Mr. Mauzey then went to Robert Fairchild, Attorney at Law, Leavenworth, Kansas, whose opinion was that the fees as charged by the respondent were excessive, and that the respondent’s fee in this estate matter was equal to approximately eight percent of the gross assets valuation of the estate or if respondent had spent 150 hours working on the estate his billing fee would have ranged in the neighborhood of $650 per hour.
“That thereafter the respondent did agree through the office of Mr. Robert Fairchild to renegotiate his fee for the estate and by agreement the respondent and Mr. Mauzey have agreed that the respondent will repay to the estate the sum of $53,788, which will be repaid to the estate over a time basis as shown by Exhibits “L” & “M.” That at the present time the panel was informed that respondent has honored this repayment agreement and has made the monthly payments as contained in said agreement.”
Conclusions:
“Due to the fact the parties are in agreement and also stipulate, and further by reason of said stipulation of facts and exhibits, this panel concludes by clear and convincing evidence that the respondent has violated the following:
“MRPC 1.5 in that the respondent has charged a fee in the Mauzey estate that was more than reasonable and is in violation of MRPC 1.5”
The panel report included the following concerning aggravation, mitigation, and recommendations.
Aggravation:
“1. The panel finds that respondent charged a greatly excessive fee in this matter and that it disclosed a selfish or greedy motive on the part of the respondent.
“2. The panel was informed that the respondent practiced law in Kansas for approximately 20 years and has had substantial experience in the practice of law.
Mitigation:
“1. There is complete absence of any prior disciplinary record against the respondent.
“2. Panel finds that the respondent has fully cooperated during the investigation of this matter and during the hearing.
“3. The panel finds that respondent has agreed that he made a mistake in charging excess fees in this matter.
“4. The respondent’s exhibits are letters showing the respondent’s good character and reputation in his community and in the practice of law.
“5. The panel finds that the respondent has showed remorse for his actions in this case.”
Recommendations:
“The panel is mystified as to why the respondent charged the excessive and unreasonable fees in the estate of Helen I. Mauzey.
“The respondent acknowledged that he was aware of the usual estate fees that were allowed by the Judge of the District Court in Atchison County, Kansas, for attorney services in estates, and respondent acknowledged that normally an attorney was allowed a fee of five percent on the probated property and two percent on the joint tenancy property by the Atchison County District Court.
“Respondent acknowledged that he had handled a number of estate proceedings during his legal career and had handled estates with the inventory value or greater than that shown in the Mauzey estate.
“Respondent did state to the panel that the motive behind the excessive fee was because he had spent a lot of time on the handling of the affairs of the Mauzey estate, but when questioned respondent admitted that he had no idea of the time he had spent during the affairs of this estate.
“On the other hand, the panel is mystified as to why this occurred because it seems to be greatly inconsistent with any other prior or after activities of the respondent in his practice of law. His practice of law seems to be outstanding as acknowledged by the letters of support for the respondent as received by the panel.
“As stated, there is no record whatsoever of any other complaints ever being filed against this respondent with the Disciplinary Administrator’s office.
“On the other hand, the panel was shocked by what it considered to be a very excessive and unreasonable fee as charged and collected by the respondent in the estate matter.
“It is therefore the recommendation of this panel that the respondent be publicly censured by the Supreme Court of the state of Kansas. That there further be placed upon the respondent a condition that if the respondent fails to make payment or restitution of the excessive fee to his client in accordance with the agreement as shown by Exhibits “L” and “M,” then if this occurs that the Supreme Court order the respondent to appear before the Court to explain why payment has not been made as agreed upon.”
Panel member Philip Ridenour submitted a dissenting report. Ridenour concluded, based upon the stipulated facts, that the respondent’s fees were not only excessive but also amounted to theft. Based upon this conclusion, Ridenhour recommended that the respondent be disbarred from the practice of law. Ridenour also noted that the work performed by the respondent had no value to the estate. He noted that the respondent had incorrectly listed the legal descriptions of parcels of real estate in the inventory and valuation, thereby assuring future title problems. Moreover, the respondent had incorrectly handled the state death tax credit in preparing the Kansas inheritance tax return and had elected a special use value treatment when it should have been obvious that the estate could not possibly qualify. Finally, Ridenour concluded that the respondent was more concerned with his fee than with representation of his client and that his expressed remorse was for himself rather than his client.
We have reviewed the record, the majority and minority panel reports, the stipulations of the parties, and the arguments and statements made during oral argument. We conclude that the panel’s factual findings and conclusions of law are supported by clear and convincing evidence. The respondent’s fee in the Mauzey estate was in violation of MRPC 1.5. We, like the majority of the panel, are mystified why the respondent charged such an excessive and unreasonable fee in the estate of Helen I. Mauzey. The court agrees with the majority panel report that the respondent charged his client an excessive and unreasonable fee in violation of MRPC 1.5. The court also recognizes that the respondent has entered into an agreement to repay the Mauzey estate the sum of $53,788 over a period of time. However, the court remains divided on an appropriate sanction. A majority of this court, recognizing the agreement to repay, agrees with the recommendation that censure be imposed and that the court direct publication of this censure. A minority would impose a more severe sanction.
It Is Therefore Ordered that the respondent, Charles M. Tuley, be censured for violating MRPC 1.5 and that this order be published in the official Kansas Reports.
It Is Further Ordered that the respondent abide by the terms of his agreement to refund that portion of the fee agreed upon to the client. The costs of the proceeding are assessed to the respondent. | [
-80,
-24,
-88,
-35,
-120,
99,
58,
-118,
121,
83,
101,
83,
-21,
-50,
17,
99,
99,
57,
80,
107,
-59,
-77,
82,
-128,
-46,
-77,
-71,
-35,
-69,
127,
-27,
-9,
73,
56,
-62,
-43,
-126,
-62,
-33,
80,
-114,
12,
-117,
-64,
89,
4,
52,
113,
21,
15,
53,
14,
-9,
11,
53,
-22,
72,
108,
-1,
-85,
83,
-127,
-97,
-123,
127,
23,
-112,
36,
-98,
13,
88,
42,
-104,
61,
2,
-87,
113,
-74,
6,
116,
71,
-119,
8,
102,
-30,
33,
1,
-65,
-80,
-100,
38,
-80,
29,
6,
-5,
89,
99,
13,
-98,
-41,
116,
80,
7,
-8,
-10,
20,
29,
104,
-118,
-85,
-58,
-125,
31,
86,
-52,
26,
-17,
7,
0,
65,
-119,
-14,
93,
-46,
50,
-101,
-98,
32
]
|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator as petitioner against Fred H. Brown, an attorney admitted to the practice of law. The issue is whether Brown, who had been temporarily suspended from the practice of law and was in federal prison, should have been granted a continuance by the hearing panel of the Kansas Board for Discipline of Attorneys (the panel), thus allowing him to appear personally.
Brown was convicted on two felony counts. While incarcerated in South Dakota, Brown received notice of his disciplinary hearing to be held in Topeka, Kansas, on November 29, 1994. Brown requested a continuance until May 1995, after his release from prison. The request was denied. Brown did not appear in person or by counsel.
The panel recommended disbarment. Brown filed exceptions. Our jurisdiction is under Kansas Supreme Court Rule 212 (1994 Kan. Ct. R. Annot. 210).
We remand the matter to the panel to afford Brown the opportunity of appearing in person.
FACTS
On February 4, 1994, in the United States District Court for the District of Nebraska, Brown was convicted on two drug counts: conspiracy to distribute cocaine, violating 21 U.S.C. §§ 841(a) and 846 (1994) and 18 U.S.C. § 2 (1994); and possession of cocaine with intent to distribute, violating 21 U.S.C. § 841(a). Both crimes are felonies under federal law, Nebraska law (Neb. Rev. Stat. §§ 28-416 and 28-105 [1989]), and Kansas law (K.S.A. 1994 Supp. 65-4161). At the time of his conviction, Brown practiced law in Omaha, Nebraska, and was authorized to practice in Kansas, although he had no clients or active cases in Kansas.
On March 14, 1994, the petitioner received notice from Brown of his temporary suspension from the practice of law in the state of Nebraska. Brown also notified the petitioner of the federal convictions. The petitioner, under Rule 203(c)(3) (1994 Kan. Ct. R. Annot. 189), filed with this court a certified copy of the federal convictions and the Nebraska Supreme Court order temporarily suspending Brown from the practice of law in Nebraska. We temporarily suspended Brown from the practice of law in Kansas on March 16, 1994, pending final disposition of his disciplinaiy proceeding.
On July 25, 1994, Brown was sentenced to 15 months in the federal prison at Yankton, South Dakota.
On September 20, 1994, the petitioner sent the formal complaint to Brown and notified him of his hearing before the panel on November 29, 1994. Attached to the formal complaint served on Brown was a document entitled: “Important Notice About Aggravating or Mitigating Evidence.” That notice informed Brown of his opportunity to present evidence of mitigating circumstances at the hearing.
On September 27, 1994, Brown acknowledged receipt of the formal complaint and notice of hearing and filed a handwritten motion for continuance, seeking to postpone the hearing until May 1995. As grounds for the motion, Brown stated that: (1) he would be released from prison on March 5, 1995; (2) his conviction had been appealed and he anticipated a decision in approximately April or May 1995; (3) he was unable to obtain legal counsel to appear or represent him at the hearing; and (4) he was unable to present existing mitigating factors until his release from confinement.
Bruce Miller, the Disciplinary Administrator, forwarded Brown’s correspondence to the panel members, opposing it. In a letter dated October 10, 1994, the chair of the panel denied the motion, stating:
“We frequently hear cases involving respondents who are incarcerated. They often are represented by counsel at the hearing. If we continued each of these until release of the respondent from custody, it would not promote orderly administration of the disciplinary process. Certainly, we encourage Mr. Brown to have counsel appear on his behalf at the hearing.”
This letter (an appendix in the brief of the petitioner) was not included as part of the record, nor is there any indication that it was sent to Brown. However, Brown apparently received notice that his motion had been denied.
On October 17, 1994, the petitioner received Brown’s handwritten answer to the formal complaint. Brown admitted his convictions on the two counts in the federal indictment but denied the allegations in the indictment and the legality of his convictions. He restated that his release from prison was scheduled for March 5, 1995.
On November 28, 1994, the petitioner received Brown’s handwritten Objection to Hearing, which stated:
“COME NOW Respondent, Fred H. Brown, and hereby objects to proceeding with formal hearing scheduled November 29, 1994. In support hereof, Respondent states that he is unable to personally attend said hearing nor able to retain counsel to appear on his behalf and that to continue with said hearing without Respondent’s ability to present mitigating circumstances would be violative of due process of law.
“Respondent further states that an appeal to the U. S. Court of Appeals, Eighth Circuit of the conviction in the U. S. District Court for the District of Nebraska is pending and that hearing on the above-captioned matter should be stayed until a decision is rendered by the U. S. Court of Appeals.”
The panel considered Brown’s Objection to Hearing as a motion for continuance and denied the motion. The petitioner presented: (1) copies of the indictment, verdict, judgment and commitment order, summary report to the sentencing commission, and memorandum and order of the judge, concerning Brown’s federal criminal case in Nebraska; and (2) copies of the correspondence re ceived from Brown. Petitioner recommended disbarment, calling to the panel’s attention the judge’s memorandum and order, which described Brown’s serious addiction and unsuccessful treatment efforts.
The final hearing report: (1) found that Brown violated MRPC 8.4(b) (1994 Kan. Ct. R. Annot. 379) (commit a criminal act that reflects adversely on honesty, trustworthiness or fitness), (d) (engage in conduct prejudicial to administration of justice), and (g) (engage in any other conduct that adversely reflects on fitness to practice law); and (2) recommended disbarment. The report noted: “No evidence was presented on mitigation or aggravation. Thus there is no need to review the ABA Standards section on Aggravation and Mitigation.” The petitioner has withdrawn the charge that Brown’s conduct violated MRPC 8.4(g).
DISCUSSION
Brown casts the issue before us in terms of a denial of due process. The petitioner asserts that the failure to grant a continuance is not a denial of due process.
We remand in the interest of justice under our supervisory authority over the practice of law.
We said in State ex rel. Stephan v. Adam, 243 Kan. 619, 625, 760 P.2d 683 (1988):
“A member of the bar, licensed to practice law, does have a property right in the license. A member of the bar cannot be deprived of his or her license (right to practice law), unless he or she is afforded the constitutional procedural due process right of sufficient notice of the nature of the charge and the opportunity for a timely hearing in a meaningful manner.”
Rule 211(d) (1994 Kan. Ct. R. Annot. 207) (formal hearings) and 216 (1994 Kan. Ct. R. Annot. 214) (subpoena power, witnesses, and pretrial proceedings) contain provisions granting a respondent in a disciplinary proceeding certain procedural rights. Under the above rules, a respondent is entitled to be represented by counsel, cross-examine witnesses, and present evidence. The respondent may compel by subpoena the attendance of witnesses and the production of documents at the hearing.
Brown’s case is one of first impression. We have not considered the request of an imprisoned attorney for a continuance of the panel hearing. Respondents in disciplinary hearings have raised as exceptions refusals to grant continuances under other circumstances. In State v. Rome, 235 Kan. 642, 652, 685 P.2d 290 (1984), we found no abuse of discretion in a hearing panel’s refusal to postpone a disciplinary hearing pending resolution of a criminal appeal. In In re Ford, 252 Kan. 231, 233-34, 843 P.2d 264 (1992), we found no abuse of discretion. Ford knew for 5 1/2 months that the matter was the subject of a proceeding in the Disciplinary Administrator’s office. Ford’s claim that the denial of his request for a continuance was arbitrary and unreasonable was not supported by evidence of specific facts and circumstances. Ford was present and participated at his hearing.
In In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992), the Disciplinary Administrator sent copies of the complaint by certified mail to Kershner’s most recent attorney registration address and to a residential address provided by Kershner’s criminal counsel. The copies were returned as not deliverable or unclaimed. Kershner failed to appear at his hearing. Kershner did sign for the copy of the panel’s report sent to the residential address. The panel report recommended disbarment. Kershner, in his exceptions to the report, denied having received notice of the hearing and requested a second panel hearing so that he could respond to the charges in the complaint. Kershner claimed he was denied due process by not being afforded the second panel hearing. We decided that Kershner was afforded his due process rights because his failure to receive notice was due to his own failure to apprise the Clerk of the Appellate Courts’ office of his correct address. We also noted: “In addition, Supreme Court Rule 212 allowed [respondent] to file éxceptions to the committee’s report prior to any hearing before this court.” 250 Kan. at 387.
Brown stated that he was “unable” to obtain counsel. The only evidence presented to the panel consisted of copies of the court documents setting forth Brown’s convictions, the sentencing judge’s findings, and the sentence. Brown’s reason to appear at the hearing was to present evidence of mitigating circumstances. Brown did not file anything, either with the panel before the hearing or in his exceptions to the panel’s report, suggesting what his mitigating circumstances were.
The petitioner argues that under Rule 216(f), Brown could have requested that his (or a witness’) deposition be taken, if he could not attend the hearing. We agree. Brown also had the right to be represented by counsel.
Mitigating Circumstances
Clearly, mitigating circumstances can influence the final result of a disciplinary hearing, even when the reason for the hearing is a felony conviction. Mitigating circumstances could make the difference between a recommendation of indefinite suspension and disbarment. See In re Nelson, 255 Kan. 555, 564, 874 P.2d 1201 (1994) (indefinite suspension imposed on attorney who pled guilty to attempted possession of cocaine, a felony, although the Disciplinary Administrator recommended disbarment and the panel recommended indefinite suspension, to be probated under certain terms); Kershner, 250 Kan. at 392 (attorney convicted of two felony counts of selling unregistered securities, violating K.S.A. 17-1254, and two felony counts of acting as an unregistered broker-dealer or agent, violating K.S.A. 17-1255 of the Kansas Securities Act; hearing panel recommended disbarment; attorney presented mitigating circumstances in his brief, although he faded to appear or present any evidence at his panel hearing; majority of the court found disbarment to be excessive and imposed public censure); In re Smoot, 243 Kan. 589, 757 P.2d 327 (1988) (public censure imposed on attorney who pled guiliy in federal district court to possession of less than a gram of cocaine, a misdemeanor under the applicable federal statute, 21 U.S.C. § 844 [1982], although it would have been a felony under Kansas law [K.S.A. 65-4127a (Ensley 1980)]; attorney had completed his 4-month incarceration at the time of the disciplinary hearing).
Perhaps Brown could not have presented any mitigating circumstances that would have changed tie recommendation of die panel. However, under the facts in this case, we hold that a continuance should have been granted. No witnesses were under subpoena. Granting the continuance would have involved a postponement of little more'than 3% months. (Brown stated he was to be released March 5, 1995. He was released on that date.) Brown’s license to practice had been temporarily suspended on March 16, 1994, 8 months before the hearing. The Federal Court of Appeals affirmed his conviction less than 8 months after the panel’s hearing date. United States v. Fregoso, 60 F.3d 1314 (8th Cir. 1995).
This is not a notice case. Brown had notice of his hearing. We agree with petitioner the panel’s refusal to grant the continuance did not deny Brown due process.
We need to address the two cases Brown cited from other jurisdictions that consider due process arguments in attorney discipline hearings. Both Brown and the petitioner rely on Committee on Legal Ethics v. Folio, 184 W. Va. 503, 401 S.E.2d 248 (1990). Folio is distinguishable. Under West Virginia law, an attorney subject to a disciplinary proceeding based on a felony conviction can be automatically disbarred, unless a mitigation hearing is requested. The right to such a hearing is not absolute. In Folio (attorney convicted of federal felony for using intimidation, physical force, and threats and engaging in misleading conduct with intent to influence testimony in an official proceeding), the court determined Folio was not entitled to a mitigation hearing because no facts could sufficiently mitigate the sanction. 184 W. Va. at 508. In Kansas, an attorney is entitled to present evidence of mitigating circumstances at the panel hearing, regardless of the basis of the hearing. Rule 211(d), (f).
The second case, Giddens v. State Bar, 28 Cal. 3d 730, 170 Cal. Rptr. 812, 621 P.2d 851 (1981), concerned an imprisoned attorney. Giddens had closed his law practice and left California at the time the state bar received three complaints against him. The bar attempted to notify Giddens of the disciplinary hearing by mail and publication. Giddens did not appear and later claimed he received no notice. However, he received notice of his disbarment resulting from the hearing. He requested a setíond hearing. The state bar granted his request. Meanwhile, Giddens was indicted in federal court in Texas, pled guilty to conspiring to distribute a controlled substance, and was in federal prison. Giddens informed the Cali fomia state bar that he was incarcerated and requested that his hearing date be postponed until a certain date. He believed he could obtain a furlough to attend the hearing. Although the hearing was scheduled for that date, Giddens could not obtain the furlough. Two days before the second hearing, he requested from the hearing panel’s chair postponement or appointment of counsel. Giddens’ request for postponement was denied, and his request for appointment of counsel was ignored. The state bar had an informal procedure for appointing counsel, if requested, after a showing of indigency. Giddens failed to appear in person or by counsel at the hearing. The state bar allowed him to file affidavits in response to the testimony presented at the hearing. Giddens contended he was denied a fair hearing by the refusal to postpone the hearing until he could be represented. The court agreed and decided that Giddens had been denied his rights under a California statute which granted accused attorneys in disciplinary proceedings certain procedural rights.
The California hearing concerned complaints against Giddens for conduct in California, not the federal conviction in Texas. The complainants appeared at the hearing and testified. The Giddens court stated:
“The circumstances of this case underscore the fact that a fair hearing did not take place. Petitioner was not afforded the right to ‘defend against the charge by the introduction of evidence.’ (Bus. & Prof. Code, § 6085, subd. (a).) Although petitioner challenged the veracity of the complainants’ testimony, he never had an opportunity to cross-examine those witnesses. Since petitioner participated in the very meetings those witnesses discussed, his presence at the hearing might well have ensured the full and fair presentation of all the facts. Additionally, since he was not present to testify, the hearing officers could not evaluate his demeanor and credibility. The issue before the bar was petitioner’s continued suitability for legal practice. Without any representation of petitioner’s views, a fair hearing was not possible.” 28 Cal. 3d at 735.
The California court determined that the refusal of a continuance denied Giddens his statutory right to present a defense. 28 Cal. 3d at 736.
Unlike Giddens, the hearing in the present case did not involve testimony by complainants concerning disputed factual matters. Brown admitted his convictions. Brown did not specifically claim indigency and did not request appointment of an attorney to represent him. Nor did Brown contend that he had a right to have an attorney appointed to represent him.
The remand to the panel for a new hearing will give Brown the opportunity to appear and present whatever evidence of mitigating circumstances he may have. The precedential shadow cast by this case is limited. We do not wish to erode the discretion granted to a panel to deny or grant continuances. We do not suggest that a panel must await an appellate court’s review of a felony conviction. Our holding is linked to the particular facts of this case. We emphasize: (1) Brown was suspended from the practice of law on March 16,1994; (2) his hearing before the panel was on November 29, 1994; (3) Brown was to be released from federal prison on March 5,1995, and he so informed the panel; and (4) a continuance of 3 Vz months would have allowed him to appear.
Remanded to the panel to hear any factors of mitigation or aggravation Brown and the Disciplinary Administrator wish to submit. | [
-80,
-21,
-7,
92,
10,
65,
58,
-80,
89,
-13,
103,
83,
-19,
-6,
4,
121,
65,
125,
85,
121,
-49,
-74,
87,
-63,
-26,
-13,
-40,
-43,
-78,
95,
-19,
-100,
77,
48,
2,
-43,
6,
8,
-125,
28,
-122,
5,
-56,
-28,
81,
-63,
48,
107,
82,
15,
49,
94,
-93,
42,
19,
-50,
40,
104,
95,
45,
72,
-47,
-97,
-107,
106,
18,
-93,
-92,
24,
7,
88,
127,
-36,
-104,
1,
-24,
115,
-106,
-126,
68,
111,
-7,
-20,
102,
98,
33,
-111,
-91,
-68,
-120,
30,
58,
-99,
-90,
-40,
88,
67,
8,
-74,
-97,
108,
118,
35,
-8,
-19,
77,
17,
-20,
15,
-49,
-112,
-79,
79,
119,
-114,
-47,
-21,
39,
16,
101,
-57,
-26,
94,
86,
120,
91,
-50,
-12
]
|
The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his jury convictions for first-degree premeditated murder (K.S.A. 1992 Supp. 21-3401) and aggravated weapons violation (K.S.A. 21-4202) and the sentence imposed. Defendant claims the district judge (1) failed to instruct on the lesser offenses of second-degree murder and unlawful use of a weapon; (2) failed to grant a motion for judgment of acquittal of the aggravated weapons charge; (3) improperly allowed testimony of a witness who had violated the court sequestration order; (4) improperly admitted hearsay statements; and (5) imposed an illegal sentence.
At approximately 6:30 a.m. on February 7, 1993, Latonya Edmond’s 5-year-old nephew, Shawn, discovered Latonya lying on her living room floor in a pool of blood. A ball cap, black and white with a red stop sign in the middle, was underneath Latonya’s left hand. Shawn telephoned Latonya’s mother. When she arrived, the front door of the house was not locked. Emergency personnel were called. Latonya died before they arrived. Officers noted that the utensil drawer in the kitchen was open.
Latonya had injuries to both eyes, her mouth, and her chest. These injuries had been caused by kicking or punching. Latonya would have been rendered unconscious or stunned by the blow to her right eye. On the right side of Latonya’s neck were three or four slight cuts and one deep cut which was approximately 3 inches long and passed through the right carotid arteiy and jugular vein. The deep cut caused Latonya’s death from external bleeding and appeared to have been made with a serrated-edged instrument such as a serrated knife or pinking shears. The cuts were inflicted while Latonya was lying on the floor.
The investigation by the police revealed that on the day before her death, Latonya visited her husband, Otha Edmond, who was imprisoned in Winfield, Kansas. She arrived at 1:00 p.m and returned to Wichita around 4:00 p.m. Between 5:30 and 6:00 p.m. Latonya’s sister-in-law, Pam Reed, drove Latonya home. As Pam was leaving, she saw Lyle Sanders near Latonya’s house. Sanders explained to Pam that his car was running hot and he was going to get some water at Latonya’s. Sanders was wearing a ball cap similar to the one found under Latonya’s left hand after her death. When Pam saw Sanders around 9:00 that evening, he was wearing the cap.
Latonya had two telephone conversations with her husband. The first conversation occurred around 6:00 p.m. She told Otha that Sanders was sitting in front of her house. Sanders had been married to Latonya’s husband’s sister. A friend heard Latonya yell out the front door to Sanders that Otha said Sanders was not to come back to his (Otha’s) house. Latonya spoke with Otha again around 10:00 p.m. At 11:00 p.m., Latonya spoke with her mother and sisters on the telephone. Pam called Latonya no later than 2:30 a.m. They spoke for 10 or 15 minutes. Pam was the last person to speak with Latonya.
The police interviewed Otha, who informed authorities that his wife had told him Sanders was making sexual advances toward her. Otha stated that his home telephone number had been changed to an unlisted number because Sanders was repeatedly calling the house. In addition, Pam informed the police that a couple of days before her death Latonya had told her (Pam) that Sanders was saying she (Latonya) was his “woman.”
DNA testing of the clothes Sanders was wearing on February 6 revealed no blood which could have been Latonya’s. Two small amounts of blood found on the eject button of the cassette player in Sanders’ car were tested. One blood type was consistent with Latonya’s type, found in approximately 3% of the black population. The other was consistent with Sanders’ type. At trial, Sanders presented testimony which indicated that the DNA testing procedures were flawed because of contamination and because the examiner failed to follow proper protocol.
Sanders voluntarily spoke with police on February 7, 1993. He stated that he purchased a $10 rock of crack cocaine from Latonya and a second rock of crack at Martha Edmond’s house. Sanders said that he had gone to Latonya’s house before 5:30 p.m. to use the bathroom and borrow a screwdriver from her kitchen drawer to reconnect his stereo. Sanders denied that he had returned to Latonya’s that night.
Sanders asserted that he had spent the evening at the house of his girlfriend, Queenie Moore. He left Queenie’s several times to go to Moses Moore’s house, a church, Martha Edmond’s house, and his parents’ house. Queenie had returned home at 11:00 p.m. From 11:15 p.m. to 12:15 a.m. Sanders was at Moses’ picking up Queenie’s daughter. He then studied for his Sunday School lesson. At 1:30 a.m. Sanders went to sleep on the floor of Queenie’s bedroom.
At trial, the defendant’s mother, father, and other witnesses corroborated the defendant’s statement to police. Queenie testified that Sanders went to bed at 1:30 a.m. in her bedroom. The defendant slept on the floor because Queenie’s daughter was sleeping in the bed with her. Queenie asserted that she would have heard the defendant if he had left the room that night because the door pulls the carpet when it is opened. The defendant’s investigator also testified that when the door to Queenie’s bedroom is moved, it makes a loud noise because of the carpet.
Sanders testified as to his activities the night of Latonya’s death. He stated that he stopped by Latonya’s house around 6:00 p.m. on his way to his parents’ house. Sanders testified that he always stopped by Latonya’s to check on her when he was in the area. Sanders stated that he used her bathroom and borrowed a screwdriver from the kitchen drawer to reconnect his stereo. Sanders admitted he was wearing a black and white ball cap with a red stop sign in the center during the day. After leaving Latonya’s, Sanders had realized that he did not have the cap. He thought he had left it at Queenie’s or in his car. Sanders denied telling the police that he had purchased cocaine that night. He testified that he went to sleep in Queenie’s room. He woke up early in the morning and got up around 8:30 a.m. Sanders denied ever going back to Latonya’s house after 6 p.m., and he denied that he killed Latonya.
The jury found Sanders guilty of first-degree premeditated murder and aggravated weapons violation. Sanders was sentenced to consecutive terms of life for the murder conviction and 1 to 5 years for the aggravated weapons conviction. The life sentence for murder was tripled under the Habitual Criminal Act. The defendant appeals.
SECOND-DEGREE MURDER
The defendant first claims that the trial court erred in failing to instruct the jury on the offense of second-degree murder as a lesser included offense of first-degree murder.
K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. The statutory duty to instruct on lesser included offenses is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. State v. Bownnan, 252 Kan. 883, 892, 850 P.2d 236 (1993).
An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense. State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983). However, the duty to instruct on a lesser included offense “does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant. The evidence may be inconclusive, unsatisfactory, and weak and consist only of the defendant’s testimony. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993). There is some weighing of evidence in this analysis, but the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992).
First-degree premeditated murder is the killing of a person committed maliciously, willfully, deliberately, and with premeditation. K.S.A. 1992 Supp. 21-3401. Second-degree murder, a lesser offense of first-degree murder, is the malicious killing of a human being committed without deliberation or premeditation. K.S.A. 21-3402; see State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977).
At the close of the evidence the trial judge determined that he had no duty to instruct the jury on second-degree murder as a lesser included offense of premeditated first-degree murder because there was no evidence to support the lesser offense. In reaching this conclusion, the judge reasoned that the nature and number of the wounds inflicted on the victim before the fatal cut required deliberation or premeditation by the perpetrator and that there was not substantial evidence upon which the defendant might reasonably have been convicted of the lesser included offense, second-degree murder.
To support the judge’s finding that an instruction on second-degree murder was not required because the killing was premeditated, the State points to a variety of circumstances which include the nature of the weapon used, the lack of provocation, the defendant’s conduct before the killing, and declarations made by the defendant and the victim prior to the killing. It argues that the infliction of lethal cuts after the victim had been rendered helpless shows that the killing was deliberate and premeditated. See State v. Henson, 221 Kan. 635, 639, 562 P.2d 51 (1977).
In a prosecution for murder, the law does not presume the existence of premeditation or deliberation from any state of circumstances. It is not necessary that a premeditated intent to kill be established directly. Premeditation and deliberation may be inferred from the established circumstances, provided the inference is a reasonable one. If an inference is a reasonable one, the jury has the right to make the inference. State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978); see State v. Phillips, 252 Kan. 937, 939-40, 850 P.2d 877 (1993). The sufficiency of proof of premeditation as an element in first-degree murder has been considered by this court. We have held that the element of premeditation is not inferred from use of a deadly weapon alone, but if additional circum stances are shown, such as lack of provocation, the defendant’s conduct before and after the killing, or the striking of a lethal blow after the deceased was rendered helpless, the evidence may be sufficient to support an inference of premeditation. See Henson, 221 Kan. at 639; State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975).
In Henson, Hamilton, and Phillips, the issue was not whether a lesser included instruction to first-degree premeditated murder was required but whether the evidence was sufficient to support an inference of premeditation. The question in this appeal, conversely, is not whether there was sufficient evidence of premeditation but whether there was sufficient evidence to require the trial judge to instruct on the lesser included offense of second-degree murder. These are different questions. The sufficiency of an inference of premeditation is not conclusive in determining whether the evidence was sufficient to require a lesser included offense instruction.
Sanders asserts that the trial judge’s conclusion that the evidence indicated the killing was premeditated is incorrect because there were no witnesses to the killing and it is unknown how or why the victim was killed. Sanders observes that there was no evidence he exhibited animosity toward Latonya or wanted to harm her. Sanders points out that no murder weapon was found at the scene. To support his claim that a lesser included offense instruction was required, Sanders argues that if the murder weapon had been taken from the open kitchen drawer, as claimed by the prosecution, the killer did not take the murder weapon to Latonya’s. Sanders concludes this scenario shows that the killing was spontaneous rather than deliberate and premeditated. Sanders reasons that under these facts, an instruction on second-degree murder was required because there was substantial evidence which implied that the killing was not deliberate or premeditated.
The evidence at trial showed that Latonya was killed late at night in her own home. There was no sign of forced entiy into Latonya’s house, although she routinely kept the door locked. Latonya did not have defensive injuries, nor were there other signs of a struggle. There was no evidence of provocation. Latonya was rendered help less, either unconscious or stunned, by a blow to her face. Blows to the head and chest and several superficial cuts occurred before the lethal wound was inflicted. If the murder weapon was taken from the kitchen drawer, the jury could infer that the defendant did not premeditate the killing before going to Latonya’s house. While premeditation is one inference which may be drawn from the evidence, Sanders is correct in asserting the same evidence also creates the. opposite inference that there was no deliberation and premeditation.
In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the evidence introduced against the defendant is wholly circumstantial and open to the inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that degree of homicide. It is the province of the jury, and not the court, to determine the degree of homicide, if any, of which the defendant is guilty. State v. Johnson, 220 Kan. 720, Syl. ¶ 1, 556 P.2d 168 (1976). See State v. McClanahan, 254 Kan. 104, 865 P.2d 1021 (1993), Dixon, 252 Kan. 39, and Johnson, 220 Kan. 720, where this court reversed convictions of first-degree murder or attempted first-degree murder because the trial court failed or refused to instruct on lesser included offenses.
An instruction on second-degree murder was required here because the evidence at trial did not exclude a theory of guilt on the lesser offense. The trial court erred in failing to so instruct the jury.
We must reverse Sanders’ conviction for first-degree murder. Under the unique circumstances of this case, we must also reverse his conviction for aggravated weapons violation. That conviction is based on the jury’s finding that Sanders, as Latonya’s killer, possessed a knife. Because of the possibility that Sanders may be acquitted of the killing upon retrial, the conviction for aggravated weapons violation cannot stand. We remand the case to the trial court for a retrial on both charges. .
Because the matter will be retried, we need not reach the other issues raised by Sanders except two questions which must be answered for the new trial: (1) Was the trial court required to instruct the jury on the lesser included offense of unlawful use of a weapon? (2) Were hearsay statements improperly admitted?
UNLAWFUL USE OF WEAPONS
Aggravated weapons violation is the unlawful use of weapons by a person who within 5 years before the offense has been convicted of a felony or has been released from imprisonment for a felony. K.S.A. 21-4202. Unlawful use of weapons includes knowingly possessing a dangerous knife, other than an ordinary pocket knife with a blade 4 inches or less in length, with the intent to use the knife unlawfully against another. K.S.A. 21-4201(b). Unlawful use of weapons is a lesser included offense of aggravated weapons violation.
The evidence at trial was that Sanders was convicted of or released from imprisonment for a felony within 5 years before this offense. His parole officer testified that Sanders was placed under his supervision in October 1992, which was 4 months before Latonya’s murder. According to a journal entiy, Sanders was on parole for two convictions of kidnapping and two convictions of aggravated robbery, all felony offenses. The journal entry admitted at trial was not included in the record on appeal.
Sanders argues that the jury could disbelieve the testimony of the parole officer and the journal entry. He asserts that if the jury did not find that he was convicted of or released from imprisonment for a felony within 5 years of this crime, the jury could have reasonably convicted him of the lesser offense of unlawful use of weapons.
The parole officer’s testimony and the journal entry established the facts necessary to convict the defendant of aggravated weapons violation. That evidence was uncontroverted. Under the facts, no instruction on unlawful use of weapons was required. The trial court did not err in refusing to instruct the jury on the lesser offense of unlawful use of weapons.
HEARSAY STATEMENTS
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. This constitutional provision, however, does not preclude the admission of all out-of-court statements. In State v. Johnson-Howell, 255 Kan. 928, 881 P.2d 1288 (1994), we noted that the courts should attempt to harmonize the goal of the Confrontation Clause — placing limits on the kind of evidence that may be received against a defendant— with a societal interest in accurate factfinding, an effort which may require consideration of out-of-court statements. When the unavailability of a witness becomes an issue, whether the witness is unavailable is a question of law. To obtain admission of out-of-court statements, the State must either produce the witness or demonstrate that the witness is unavailable, and the court must find that the out-of-court statements bear sufficient indicia of reliability or show particularized guarantees of trustworthiness.
The admission or exclusion of relevant evidence in a criminal case is governed by two rules, the harmless error rule and the federal constitutional error rule. K.S.A. 60-261 sets out the harmless error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.
Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless. See State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976).
Sanders asserts that the trial court erred in admitting Latonya’s out-of-court statements to her husband, Otha, and sister-in-law, Pam, that Sanders was making sexual advances toward her. Otha testified that Latonya told him Sanders had been making sexual advances toward her. Pam testified that 2 days before Latonya’s death, Latonya told Pam that she told Sanders not to come over to her house anymore because he had approached her as being his “woman.” Latonya told Pam that she had informed Otha of Sanders’ statement and that Otha told her to tell Sanders he was not welcome at their house.
Sanders argues that the hearsay statements were offered to prove the truth of the matter and do not satisfy a hearsay exception to K.S.A. 60-460, nor were they admissible as part of the res gestae. He asserts specifically that Latonya’s statements do not satisfy the hearsay exceptions found in K.S.A. 60-460(d) but makes no analysis of the res gestae issue independent of K.S.A. 60-460(d).
The trial judge admitted Latonya’s statements to Otha and Pam as an exception to the rule against admission of hearsay statements and as part of the res gestae. In admitting the statements as part of the res gestae, the court noted that Latonya’s statements were made near the time of the crime. The statements showed the relationship of Latonya and Sanders; provided a motive; and indicated the opportunity, intent, and identity of the person who committed the murder. As to whether the statements were admissible hearsay, the judge applied the three part evaluation set forth in K.S.A. 60-460(d) and in State v. Peterson, 236 Kan. 821, 830, 696 P.2d 387 (1985). The judge noted that (1) the statements were recent in time; (2) the declarant was under stress at the time that the statements were being made; and (3) the statements were made while the declarant’s recollection was clear, they were made in good faith, and there was no indication of intent by the declarant to falsify or distort the statements.
Res gestae and the hearsay exception of K.S.A. 60-460(d) are separate avenues by which evidence may be admitted; both avenues need not be satisfied for the evidence to be admissible. Hear say evidence may be admitted if it satisfies a hearsay exception found in K.S.A. 60-460, whether or not it is part of the res gestae, if it is relevant evidence.
K.S.A. 60-460(d) provides:
“Evidence of a statement which is made other than by a witness while testifying at tire hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which die statement narrates, describes or explains, (2) while die declarant was under the stress of a nervous excitement caused by such perception or (3) if die declarant is unavailable as a witness, by the declarant at a time when die matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faidi prior to the commencement of the action and widi no incentive to falsify or to distort.”
Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence. K.S.A. 60-460 makes all hearsay, even though relevant to the issue, inadmissible except to the extent that it is admissible by an exception found in that statute. The exceptions found in 60-460 allow the admission of relevant hearsay statements which have probative value and are the best evidence available. The trial court is given considerable latitude in determining whether statements satisfy the hearsay exceptions of K.S.A. 60-460(d). State v. Stafford, 255 Kan. 807, 810, 878 P.2d 820 (1994); State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983).
The exception stated in 60-460(d)(1) requires that the out-of-court statement be made while the declarant is perceiving the event or condition. There is no evidence that Latonya’s statements to Otha and Pam concerning Sanders’ sexual advances were made while she was perceiving the advances. K.S.A. 60-460(d)(1) is not satisfied.
The trial court opined that the nature of Latonya’s statements showed that she was under stress at the time the statements were made. This goes to the exception found at 60-460(d)(2), which requires that the statement be made while the declarant is under the stress of a nervous excitement caused by the perception and is normally referred to as the “excited utterance” exception. To fulfill this exception, the perception must have been startlingly sufficient to cause nervous excitement, and the declaration must be made while under the stress of that nervous excitement. See State v. Rowe, 252 Kan. 243, 250, 834 P.2d 714 (1992). Here, there is no evidence concerning the nature of Sanders’ sexual advances. Without more, the perception of a sexual advance is not sufficient to show nervous excitement. Cf. State v. Rainey, 233 Kan. 13, 16-17, 660 P.2d 544 (1983). Moreover, because there is no evidence when the sexual advances occurred, it cannot be said that Latonya’s statements were made while she was under the stress of the perception. K.S.A. 60-460(d)(2) is not satisfied.
The trial court also indicated that Latonya’s statements were made when the event had been recently perceived by her, while her recollection was clear, and with no indication of any intent to falsify or distort. The hearsay exception found at K.S.A. 60-460(d)(3) requires several conditions to be satisfied: (1) The declarant is unavailable as a witness; (2) the statement was made at a time when the matter was recently perceived and while the declarant’s recollection was clear; and (3) the statement was made in good faith prior to the commencement of the action and with no incentive to falsify or distort. Here, Latonya was unavailable as a witness because she was deceased. See K.S.A. 60-459(g)(3). The trial court found Latonya’s statements were recent in time.
K.S.A. 60-460(d)(3) also requires that the statements be made in good faith, prior to the commencement of the action, and with no incentive to falsify or distort. Latonya’s statements were made prior to the commencement of this action. The presence or absence of an incentive to falsify or distort under K.S.A. 60-460(d)(3) is a question to be detennined by the trial judge in light of all the circumstances. State v. Stafford, 255 Kan. 807, Syl. ¶ 1. In determining that Latonya’s statements did not indicate an intent to distort, the trial court looked at the statements and other circumstances. An appellate court is in no better position than the trial court to decide whether Latonya had any incentive to distort or falsify her statements, nor should an appellate court second-guess the trial court’s decision. See Rowe, 252 Kan. at 251. The statements were admissible under the exception stated in K.S.A. 60-460(d)(3).
The trial court also opined that Latonya’s statements were admissible as part of the res gestae because the statements occurred near the time of the crime; showed the relationship of the parties; and may have indicated motive, opportunity, intent, or identity. The trial court pointed out that an unwanted sexual advance showed the relationship of the parties. This, however, is not the test for res gestae. Nor is the test whether the evidence would show motive, opportunity, intent, or identity. Prior to making this determination the trial judge must first determine whether the evidence constitutes part of the res gestae. If it does, the evidence may be admitted if it is relevant to show the relationship of the parties or the defendant’s motive, opportunity, intent, or identity.
In Peterson, 236 Kan. 821, this court analyzed res gestae and hearsay exceptions. The Peterson court noted that prior to the adoption of the Code of Civil Procedure, Kansas courts spoke of res gestae as one of the exceptions to the prohibition against the introduction of hearsay into evidence. The res gestae exception to the admissibility of hearsay dealt with declarations made before, during, or after the happening of the principal occurrence. These declarations were admissible as part of the res gestae where the declarations were so closely connected with the principal occurrence as to form in reality a part of the occurrence. The adoption of 60-460(d) replaced a portion of the res gestae exception with the contemporaneous statement exception to the hearsay rule. 236 Kan. at 829-30.
The Peterson court observed that res gestae is a broader concept than an exception to the hearsay rule set out in 60-460(d). Res gestae actually deals with admissibility of evidence of acts done as well as declarations made before, during, or after the occurrence of the principal event. Evidence of acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of die res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983). Res gestae includes those circumstances or acts which are automatic and undesigned incidents of the particular litigated act and which may be separated from the particular act by lapse of time but are illustrative of that act. It is the whole of the transaction under investigation or being litigated. Acts done or declarations made before, during, or after the principal occurrence admissible as part of the res gestae may show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Peterson, 236 Kan. at 829.
Declarations made before the happening of the principal occurrence may be admissible as part of die res gestae where the declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. See State v. Gadelkarim, 256 Kan. 671, 688, 887 P.2d 88 (1994); Peterson, 236 Kan. at 829; Sherry, 233 Kan. 920. Res gestae evidence is evidence which, though not constituting a part of the crimes charged, has a natural, necessary, or logical connection to the crime. Gadelkarim, 256 Kan. at 687.
Wide latitude is given to the trial court in determining whether evidence constitutes part of the res gestae. See Gadelkarim, 256 Kan. at 687. The trial court did not err in admitting into evidence Latonya’s out-of-court statements concerning the defendant’s sexual advances as part of the res gestae.
Reversed and remanded for a new trial. | [
-48,
-22,
-15,
-65,
56,
97,
42,
-72,
115,
-13,
96,
83,
-81,
-53,
69,
107,
27,
127,
85,
97,
98,
-73,
39,
65,
-74,
123,
-79,
-43,
-77,
99,
-10,
-75,
12,
96,
74,
85,
70,
-118,
-25,
-44,
-116,
3,
-119,
96,
75,
2,
32,
47,
-2,
6,
117,
-116,
-77,
107,
22,
-54,
-24,
45,
91,
47,
0,
57,
-85,
-123,
-100,
17,
-77,
-122,
-98,
5,
-40,
53,
-104,
49,
0,
-24,
115,
-122,
-126,
116,
77,
-119,
76,
103,
-30,
33,
29,
-51,
-95,
-120,
15,
127,
-75,
-89,
-104,
105,
97,
12,
-98,
-35,
116,
116,
14,
120,
-3,
78,
75,
-28,
-124,
-49,
-112,
-111,
-115,
48,
-48,
-6,
-21,
39,
50,
117,
-35,
-94,
84,
-128,
112,
-69,
-33,
-108
]
|
The opinion of the court was delivered by
Six, J.:
This is a workers compensation case interpreting the “special hazard” exception to the K.S.A. 44-508(f) “going and coming rule.” Melva Chapman, an employee of Beech Aircraft Corp., was injured while crossing a public street between a company-owned parking lot and the plant where she worked. The Administrative Law Judge (ALJ) entered a workers compensation award, determining that Chapman’s injuries arose out of and in the course of her employment. The Workers Compensation Board (Board) reversed the ALJ’s findings. The Court of Appeals reversed the Board and reinstated the ALJ’s award. Chapman v. Beech Aircraft Corp., 20 Kan. App. 2d 962, 894 P.2d 901 (1995). We granted Beech’s petition for review. Our jurisdiction is under K.S.A. 21-3018(b).
We affirm the Court of Appeals and reverse the Board. Chapman is covered by workers compensation.
THE QUESTION
Did the Court of Appeals err in determining that the special hazard exception to the going and coming rule of K.S.A. 44-508(f) applies and, consequently, Chapman’s injuries arose out of and in the course of her employment with Beech?
FACTS
The facts are quoted from the Court of Appeals opinion:
“Chapman was injured while going to work as she crossed, on foot, a busy public street (Central Street) in Wichita, Kansas. The street runs between the Beech’s company-owned parking lot and the aircraft plant where Chapman worked. Beech owns all of the property on the south side of Central where the parking lot is located for a distance of about one mile. The majority óf the property on the north side is also owned by Beech, with the exception of a few residences. All Beech employees who park in the lot are required to cross Central Street in Order to get to work. There are three crosswalks available for use by the employees who cross the street in the general area in question. Beech issues parking stickers to its employees which allow them to park in this particular lot.
“On the day of Chapman’s injury, January 8, 1991, she was to report for work at 7:00 a.m. She parked iii the lot at approximately 6:40 a.m. and was injured when she was struck by a vehicle while she was attempting to cross Central Street in the middle of the block. Chapman was not using any of the designated crosswalks at the time of the occurrence. She had not yet clocked in for work at the time of the accident. In summary, Chapman was between the premises of her employer on a public street at the time of the injury and had not yet assumed her duties of employment.” 20 Kan. App. 2d at 963.
DISCUSSION
The Kansas Workers Compensation Act (the Act), K.S.A. 44-501 et seq., is to be liberally construed for the purpose of bringing employers and employees within the provisions of the Act to provide the protection of the Act to both. The Act is to be applied impartially to both employers and employees. K.S.A. 44-501(g). The burden of proof rests by statute on Chapman to prove “the various conditions of which [her] right depends.” See K.S.A. 44-501(a), see K.S.A. 44-508(g).
K.S.A. 44-508(f) provides in relevant part:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.” (Emphasis added.)
The first sentence of K.S.A. 44-508(f) establishes the going and coming rule, which bars an employee injured on the way to or from work from workers compensation coverage. The last sentence of 44-508(f) describes the premises and special hazard exceptions. If the employee is injured on the way to or from work while on the employer’s premises or on a special hazard route, the employee is eligible for coverage. This case deals with the special hazard exception.
The question of whether the K.S.A. 44-508(f) special hazard exception in the going and coming rule applies must be addressed on a case-by-case basis. See Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 438, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984).
ALT and Board Findings
The ALj crafted his rationale after a concept he identified as the “majority rule.” He did not rely on either the premises or the special hazard exceptions to K.S.A. 44-508(f).
“If this case were viewed as one in which the claimant was on her way to work it would not be considered compensable since the route claimant was injured on, while it did have a special risk or hazard, was not a route which is used by the public only in dealing with respondent.
“In this case claimant argues that she had already arrived at work. If she had been injured in the-parking lot, and had not been attempting to cross the street to the plant, her accident would have been considered compensable without question.
“The question to be addressed in this case is whether Kansas would follow the majority rule cited by claimant, as set out in Larson’s Workman’s Compensation Law, Sections 15.14(a) and (b), that injuries sustained by employees on a public road while going between two parts of the employer’s premises are compensable. I find that Kansas would follow that rule.”
The Board, in reversing the ALJ, determined that in view of Thompson v. Law Offices of Alan Joseph, 19 Kan. App. 2d 367, 372, 869 P.2d 761 (1994) (later affirmed by this-court at 256 Kan. 36, 883 P.2d 768 [1994]), the more liberal rule stated in Larson’s treatise did not apply in Kansas. The Board concluded neither the premises nor the special hazard exception to K.S.A. 44-508(f) applied:
“In order to reach the plant claimant had to cross Central Street in one of the several available crosswalks. Claimant, electing to forego the use of the crosswalks, jaywalked across Central Street. ...
“The claimant in this instance was injured while crossing a busy city street in Wichita, Kansas. The claimant was on her way to assume the duties of employment but it can not be said that the route across Central is a route involving a special risk or hazard and it further cannot be said it is a route not used by the public except in dealings with the employer. Central Street, in that vicinity, is a major city artery to several businesses in east Wichita.”
The Court of Appeals Opinion
The Court of Appeals agreed that the premises exception in 44-508(f) did not apply, because Central Street, where the injury occurred, was not on Beech’s premises. However, the Court of Appeals determined that the special hazard exception did apply. We agree. Beech argued that since Chapman could have used any one of three crosswalks on Central Street, but instead chose to jaywalk, the route she chose was not the only “available route.” The Court of Appeals reasoned that since Beech did not argue the crosswalks are any safer than Chapman’s path or that Chapman’s path was illegal, Chapman’s only available route would include crossing Central Street “generally,” including the route that she actually took. The Court of Appeals: (1) found that Central Street was a heavily traveled major artery in Wichita; (2) took judicial notice of the fact that the street would be dark at 6:40 a.m. on January 8, 1991; (3) determined that the street constituted a “special risk or hazard”; and (4) determined that the only pedestrians using this route (across Central Street) would be Beech employees or persons having dealings with Beech. 20 Kan. App. 2d at 968-70.
Standard of Review
In Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995), we set out the standard of review to be applied to the Board’s decisions:
“Review of the Board’s decision is now by the appellate courts in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See L. 1995, ch. 1, § 3.
“Under K.S.A. 77-621, appellate review is explicitly limited to questions of law. That statute states in relevant part:
‘(c) The court shall grant relief only if it determines any one or more of the following:
‘(4) the agency has erroneously interpreted or applied the law;
‘(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 . . . ; or
‘(8) the agency action is otherwise unreasonable, arbitrary or capricious.’ ”
In this case, there do not appear to be any factual disputes (although the record reflects an absence of factual information concerning the crosswalks). Therefore, our review concerns the legal question of whether the special hazard exception applies to die facts.
Special Hazard Exception
In Thompson, 256 Kan. at 40, we noted that the legislature codified the premises exception and adopted the special hazard exception in K.S.A. 44-508(f) after our decision in Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P.2d 754 (1966). Victory Sand & Stone Co. denied coverage to the widow of a workman killed at a railroad crossing a few feet from the plant entrance on the only available route to his employment. 197 Kan. at 384.
The single case construing the 44-508(f) special hazard.provision is Bay v. Funk, 19 Kan. App. 2d 440, 871 P.2d 268 (1994). Bay was a security guard under contract to Exide Corporation. His duties required him to stop trucks leaving the plant to inspect rear door seals. As Bay was inspecting a truck, Funk, an Exide employee on his way to work, ran a stop sign and hit Bay. Although covered as a statutory employee under Exidé’s workers compensation plan, Bay filed a personal injury action against Funk. The district court dismissed the action (an employee covered by the Act injured by a co-employee engaged in actions arising out of and in the course of employment may not bring a separate action against that employee for negligence). The test was whether Funk would have been entitled to receive compensation had he been injured in the same accident. 19 Kan. App. 2d at 442. The Court of Appeals determined that the special hazard exception in 44-508(f) applied to Funk; thus, Bay could not maintain a separate action against Funk. 20 Kan. App. 2d at 443.
Cases From Other Jurisdictions
Although the Kansas special hazard exception is codified, a majority of jurisdictions have adopted a common-law exception to the going and coming rule. See 1 Larson, The Law of Workmen’s Compensation § 15.13(a) (1995). Larson describes the special hazard exception as when “the off-premises point at which the injury occurred lies on the only route, or at least on the normal route, which employees must traverse to reach the plant, and . . . therefore the special hazards of that route become the hazards of the employment.” Larson, § 15.13.
Larson’s description is less restrictive than the K.S.A. 44-508(f) definition, which requires not only that a “special hazard” be present, but that the route be the “only available” one and one “not used by the public except in dealings with the employer.” Because of the legislature’s authority to establish policy and the legislative exceptions to the going and coming rule expressed in K.S.A. 44-508(f), street crossing cases from other jurisdictions require careful reading when considered for precedential merit in this jurisdiction.
Courts in other jurisdictions have considered whether crossing a public street adjacent to the employer’s premises falls within the common-law special hazard exception with a variety of results.
A. Coverage Denied
In Hafner v. A.G. Edwards & Sons, 903 S.W.2d 197 (Mo. App. 1995), Hafher was hit by a car in the street in front of her employer’s premises on the way to the employee parking lot. The pivotal issue was whether the employer’s premises could be extended to include the area of the street where Hafner was injured. 903 S.W.2d at 200. The employer had obtained permission from the city to install a crosswalk controlled by a traffic signal to assist employees in crossing the street between the parking lot and the employer’s premises. The employer had handed out leaflets to employees on three occasions encouraging them to use the crosswalk. Hafher did not use the crosswalk. She argued that the employer had subjected her to a special hazard in requiring her to cross the street between the parking lot and the employer’s premises. The court denied coverage because: (1) the employer had not encouraged employees to cross the street at any point other than the crosswalk; (2) the street (including the crosswalk) was open to the general public, and the employer never exerted or attempted to exert any control over it; and (3) by choosing not to use the crosswalk, Hafher “subjected herself to the same hazards as any member of the general public who chooses to cross a public thoroughfare outside a painted crosswalk.” The Hafner court emphasized that the employer provided the traffic light and crosswalk as a safer alternative, to assist employees. 903 S.W.2d at 201.
Coverage was also denied in Verret v. Travelers Insurance Company, 166 So. 2d 292, 294-95 (La. 1964) (Employee was hit by a car and killed while crossing a private drive, not owned by the employer, adjacent to the employer s premises, which employees used going to and from work. No “unusual risks” or “peculiar hazard” from the traffic existed. The general public was equally exposed to any such risk.). See also Maddox v. Heaven Hill Distilleries, Inc., 329 S.W.2d 189 (Ky. 1959) (Employee was hit by a car as he crossed the public highway between employer’s premises and the employer-furnished parking lot. No coverage.).
“When we test the facts of the instant case by our definition of ‘arising out of’ we find that this injury did not result from a risk connected with Maddox’ employment because all persons using public highways are exposed to the same hazard. It did not result from a danger peculiar to the [employer’s] industry.”. 329 S.W.2d at 191.
B. Coverage Applied
In State ex. rel. McDonnell v. Luten, 679 S.W.2d 278 (Mo. 1984), Luten, leaving work, was struck by a car in a crosswalk between the employer’s premises and an employer-provided bus shelter. The employer had painted and maintained the crosswalk, illuminated it, and maintained the surface of the roadway. The employer also furnished the bus to be taken by Luten. Luten filed a negligence claim against the employer. The employer sought to have the case dismissed, arguing the claim was under the exclusive jurisdiction of workers compensation. The court agreed.
“[T]he only conclusion available . . . was that the route over which plaintiff was travelling was expressly approved by [employer] as a means of access to its facility. In addition, it is clear that the hazard to which the plaintiff was exposed along this route was precisely the hazard which caused the injury, i.e., the risk of being struck by vehicular traffic.” 679 S.W.2d at 280.
In Montgomery v State Industrial Accident Com'n, 224 Or. 380, 356 P.2d 524 (1960), it was held that the crossing was a “special risk” and, therefore, the street became an extension of the employer’s premises.
“[T]he source of danger was the vehicles which ran up and down the street the plaintiff was required to cross. . . . We do not believe that it would be reasonable to rule that although a railroad train is a source of hazard to those who must cross its tracks a motor truck, although it not infrequently runs in a squadron-like formation with other vehicles, is not a source of hazard.” 224 Or. at 391-92.
See also Goff v. Farmers Union Accounting Service, Inc., 308 Minn. 440, 241 N.W.2d 315 (1976) (injury compensable under workers compensation; street crossing between parking lot and employer’s premises constituted a special hazard); Ingalls Shipbuilding v. Dependents of Sloane, 480 So. 2d 1117, 1119 (Miss. 1985) (premises on each side of the access road owned by employer; no crosswalks mentioned; special hazard exception was. applied; evidence not sufficient to show that claimant had a practical alternate route to avoid the inherent danger of heavy southbound traffic); Buechi v. Arcata Graphics, 97 App. Div. 2d 579, 580, 468 N.Y.S.2d 65 (1983) (Compensation awarded to employee hit at. entrance of parking lot. The parking lot entrance was a special hazard, as evidenced by the employer obtaining permission to install a traffic signal to control the heavy vehicular traffic.). In Swanson v. General Paint Company, 361 P.2d 842 (Okla. 1961), an employee was struck by a car and killed while walking across a public highway between the employer-furnished parking lot and the employer’s premises. No crosswalk was mentioned. The State Industrial Court denied workers compensation benefits. The lower court in Swanson affirmed that denial, but the Supreme Court of Oklahoma reversed, stating:
“We think that the proper rule is that where the only route from one portion of an employer’s premises used by the employee to the portion of employer’s premises where the labor of [the] employee is performed necessitates the crossing of a highway which is a special hazard, that injury incurred on such highway crossing arises out of and in the course of employment.” 361 P.2d at 845.
Although it is difficult to draw firm conclusions from such a variety of holdings, a few generalizations can be made. The earlier cases held that a pedestrian’s exposure to vehicle traffic in crossing a street was not a particular hazard. Verret, 166 So. 2d 292; Maddox, 329 S.W.2d 189. However, as the Oregon Supreme Court noted in Montgomery, 224 Or. 380, motor vehicles moving in an unrestrained fashion present a hazard. If the employee was injured crossing the street either in a marked crosswalk or in the vicinity of a traffic signal or dangerous intersection sign, courts have applied the common-law special hazard exception to determine that workers compensation covered the injury. Luten, 679 S.W. 2d 278; Montgomery, 224 Or. 380; Ingalls Shipbuilding, 480 So. 2d 1117; Buechi, 97 App. Div. 2d 579. If the employee was injured crossing a street with no crosswalk, one court awarded coverage (Swanson) and two did not (Maddox; Verret). In only one of the cases we have referenced did a court award compensation to an employee injured while jaywalking across the street when crosswalks were available. In Goff, the court had information that the employer acquiesced to employees jaywalking across the street directly in front of the building where fhey worked. Also, one crosswalk was 2 blocks away, and the other was 150 feet away. A tunnel was available, but it was 500 feet away. 308 Minn, at 441.
We find no evidence in the record that Chapman was required, invited, or encouraged by Beech to cross Central using a crosswalk or other specified course. Our examination of the record supports the conclusion that Central Street is a heavily traveled major artery in Wichita. We agree with the Court of Appeals that Chapman’s route to work involved a special risk or hazard under 44-508(f).
Special Hazard Element
In our view, vehicle traffic may constitute a special hazard, depending on the circumstances. The record indicated that Central Street is a busy public street in Wichita, the largest city in Kansas. The Board found: “Central Street, in that vicinity, is a major city artery to several businesses in east Wichita.” However, the Board determined that: “[t]he route across Central [Street was not] a route involving a special risk or hazard.” The ALJ determined that the route Chapman took “did have a special risk or hazard.” The Court of Appeals found that “Chapman’s route to work constituted a special risk or hazard.” We agree. We hold that Chapman carried her statutory burden under K.S.A. 44-501(a) to show that crossing Central Street was a special risk or hazard.
Only Available Route
Chapman testified that there were three crosswalks in the vicin ity of the Beech plant and that she could have used a crosswalk to cross Central. There is no evidence in the record either as to how far these crosswalks were from the path Chapman took across Central Street, or that any of the crosswalks were controlled by a traffic signal.
Beech mentions Chadwell v. Clements, 18 Kan. App. 2d 84, 847 P.2d 1344 (1993), a case Beech contends involved the same crosswalks at issue in the present case. Beech apparently requests that this court take judicial notice of the facts in Chadwell concerning the crosswalks and traffic signals. We decline to do so. The Chad-well facts do not establish the location or condition of the crosswalks or traffic signals at the time of Chapman’s injury. Chapman’s location when she was injured is not a key factor. During oral argument, counsel for Beech was asked, “[W]ould there have been coverage had she [Chapman] been in the crosswalk or in the place where the stoplight was when she was hit by a vehicle?” The following dialogue developed:
“[BEECH’S COUNSEL:] I don’t believe so.
“[COURT:] So it doesn’t make any difference whether she’s in the crosswalk or [jaywalking], there’s not coverage either way in your idea.
“[BEECH’S COUNSEL:] In my opinion, they have to show that there was a special hazard associated here. Something that presumably Beech had some control over.”
The Court of Appeals reasoned that because there was no showing that any of the crosswalks would have provided Chapman any safer route, the “only available route” must encompass any path “generally in a southerly direction across Central Street to the Beech plant,” without regard to use of the crosswalks. 20 Kan. App. 2d at 969. We agree. Chapman had to cross Central at some point in order to travel from the parking lot to the plant where she worked.
Route Not Used By Public
The record indicated that Central Street is used by the public in general, including people going to Beech facilities or other places west or east of Beech. However, Chapman testified that the only people she observed crossing Central Street were other Beech employees using the parking lot or people needing to go to Beech. In addition, Chapman testified that Beech owned property on both the north and south sides of the street. Beech contends that because the public uses Central Street to reach Beech and destinations on either side of Beech, Chapman’s route fails to meet the K.S.A. 44-508(f) criteria of being used only by Beech employees or others having dealings with Beech. The ALJ determined that Chapman’s route was not “used by the public only in dealing with [Beech].” The Board also made the same finding. The Court of Appeals determined that the relevant route was not along Central Street but across the street.
The Court of Appeals’ analysis on this issue seems to be the only one supported by the record. Chapman walked across Central, not along it, in going to work. The fact that Central Street carried traffic to other destinations seems irrelevant. The traffic presented the risk or hazard. There was nothing in the record to indicate that anyone other than Beech employees, or persons dealing with Beech, crossed Central Street at that point.
Under the facts of this case, where the employee uses a company-owned parking lot on one side of a public street that is a heavily traveled major city artery and must walk across that street to reach the company’s plant for work, and where the general public uses such route only in dealing with the employer, we hold that such employee is using a route that involves a special risk or hazard.
Beech’s K.S.A. 44-501(d)(1) Argument
Beech asserts that Chapman should be denied coverage because of K.S.A. 44-501(d)(1), which provides:
“If the injury to the employee results from the employee’s deliberate intention to cause such injury; or from the employee’s willful failure to use a guard or protection against accident required pursuant to any statute and provided for the employee, or a reasonable and proper guard and protection voluntarily furnished the employee by the employer, any compensation in respect to that injury shall be disallowed.”
Beech suggests that by not using a crosswalk, Chapman chose not to use the provided safety devices. Beech raises this argument for the first time on appeal. A point not presented to the trial court will not be considered for the first time on appeal. Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993). In addition, nothing in the record indicates that 44-501(d)(1) applies.
The judgment of the Court of Appeals reversing the Board is affirmed. The order of the Board is reversed. That portion of the ALJ’s decision finding Chapman’s accident compensable and awarding compensation to her and against Beech is reinstated. | [
-48,
120,
-48,
-4,
9,
-29,
58,
-104,
113,
-43,
37,
83,
-113,
-21,
-99,
115,
-10,
61,
-48,
43,
-11,
-77,
19,
-118,
-42,
-13,
-21,
-44,
-71,
75,
116,
118,
76,
112,
10,
85,
-26,
72,
76,
16,
-52,
6,
-118,
-16,
25,
-125,
56,
58,
-112,
89,
49,
-114,
-69,
41,
24,
71,
-84,
44,
91,
-84,
-61,
-16,
-117,
4,
127,
16,
-94,
4,
-66,
-89,
-40,
15,
-112,
-72,
56,
-104,
19,
-90,
-46,
-76,
35,
-71,
68,
6,
98,
33,
20,
-27,
-4,
-72,
14,
-4,
-115,
-92,
-100,
24,
115,
11,
-107,
-107,
113,
6,
4,
124,
-18,
85,
29,
-87,
-115,
-113,
-76,
-111,
79,
68,
-42,
-113,
-17,
-121,
-77,
101,
-34,
-82,
92,
5,
50,
-105,
-1,
-102
]
|
The opinion of the court was delivered by
Davis, J.:
This is an appeal by the State from the dismissal of the charge of impairing a security interest in violation of K.S.A. 1994 Supp. 21-3734. The trial court dismissed for lack of venue based upon its conclusion that Bourbon County, Kansas, was not the “county where the crime was committed” under K.S.A. 22-2602 because the collateral subject to the security interest had been disposed of in the state of Missouri. For reasons set forth below, we reverse and remand for further proceedings.
The parties have submitted the following agreed-upon statement of facts for this case:
“The defendant purchased an automobile (a 1990 red Pontiac Firebird) from Ray Shepherd Motors, Inc. (hereafter, lien holder) in Ft. Scott, Bourbon County, Kansas, in February, 1993. A security agreement was executed and a hen placed on the title to the automobile, which was registered in Kansas, showing Ray Shepherd Motors, Inc. as hen holder.
“In March, 1993, the defendant locked herself out of the automobile and hen holder arranged to use a set of master keys to let her in it and informed her first (March, 1993) payment was late. Defendant assured hen holder payments would be sent hen holder during the first week of each month. Payments were due on or before the 24th day of each month.
“In May, 1993, the automobile was repossessed by the hen holder for the defendant’s failure to maintain liability insurance, but was returned the same day to the defendant at the insurance agency by the hen holder upon defendant’s purchasing and providing proof of insurance. At the time the automobile was returned, defendant informed the hen holder she was moving to Pittsburg, Crawford County, Kansas, and provided the address.
“After the defendant moved to Crawford County, payments were regularly made from May through September, 1993. However, the October payment became past due and on 12 November, 1993, she was placed on hen holder’s delinquency hst. The hen holder contacted the defendant about the delinquent payment on 20 November, 1993, and was told by defendant a money order was in the mail.
“When no money order was received, the hen holder contacted the defendant again on the morning of 27 November, 1993, and was told another check would be mailed.
“lien holder again contacted defendant on 10 December, 1993, about not having received payment and was told by defendant that she would send another payment that day or the next.
“On 14 December, 1993, hen holder sent a notice to cure default by payment of arrearages.
“On 24 December, 1993, the hen holder contacted defendant again about repossessing the automobile for nonpayment and was told by defendant she had sold the automobile to a Missouri couple on 20 December, 1993 for $500.00 and they were to make remaining payments. Further, the couple would contact hen holder. Whereupon, hen holder told her she had no right to sell the automobile, lien holder then contacted a repossession company and attempted to repossess the automobile, but the hen holder could not locate the couple, as the address given did not exist, or the automobile.
“In early January, 1994, hen holder contacted defendant seeking her assistance in locating the couple and vehicle by leaving messages on her telephone answering machine. On 12 January, 1994, hen holder, after having no calls returned went to defendant’s address to speak to her, but only her daughter was home, so another message was left with her daughter for her.
“On 20 December, 1994, police in Fort Scott, Kansas, were contacted and a report was filed leading to the charge being filed. Lien holder’s loss was $5782.18.
“Later, through investigation, the lien holder discovered the defendant sold the automobile to an automobile dealer in Joplin, Missouri, on the afternoon of 27 November, 1993, who subsequently sold it to a customer.
“Further, the hen holder learned that in August, 1993, after her move from Ft. Scott, Kansas, the defendant had reregistered the automobile in Walker, Missouri. Lien holder was unaware of the reregistration. Defendant had received a clear title issued on 13 September, 1993, to the automobile from Missouri. The State of Missouri sought the return of said title from defendant in February, 1994, as the same had been issued in error.
“The defendant was Summoned to Court, given a First Appearance and appointed counsel, given her Preliminary Examination and bound over, Arraigned, and the matter set for Jury Trial.”
The defendant, Diana Jurdan, was charged in Bourbon County, Kansas, with impairing a security interest under the provisions of K.S.A. 1994 Supp. 21-3734(a)(2):
“(a) Impairing a security interest is:
(2) selling, exchanging or otherwise disposing of any personal property subject to a security interest without the written consent of the secured party, with intent to defraud the secured party, where such sale, exchange or other disposition is not authorized by the secured party under the terms of the security agreement.”
The trial court’s rationale for dismissal involved the interpretation of K.S.A. 1994 Supp. 21-3734(a)(2):
“The State argues that Bourbon County has appropriate venue because the locus of the security agreement is in Bourbon County. Without reaching the merits of this argument, the Court holds that the location of the security interest is not significant under our statute. By the language of K.S.A. 21-3734(a)(2), the Court finds that the critical factor is the location of the secured collateral at the time it is impaired.”
This is a case of first impression in Kansas. The resolution of this issue requires the interpretation and construction of K.S.A. 1994 Supp. 21-3734(a)(2), as it relates to venue under the provisions of K.S.A. 22-2602. Statutory interpretation is a question of law, and this court has unlimited review of questions of law. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
Black’s Law Dictionary 1557 (6th ed. 1990) defines venue as:
“The particular county, or geographical area, in which a court with jurisdiction may hear and determine a case. Venue deals with locality of suit, that is, with question of which court, or courts, of those that possess adequate personal and subject matter jurisdiction may hear the specific suit in question.”
The United States Constitution provides: “The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” Art. III, § 2.
“ ‘The Constitution makes it clear that determination of proper venue in a criminal case requires determination of where the crime was committed . . . the provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.’ ” Platt v. Minnesota Mining Co., 376 U.S. 240, 245, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1964).
Section 10 of the Kansas Constitution Bill of Rights provides:
“In all prosecutions the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”
Early in our history this court stated:
“The design of this constitutional provision seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witnesses who give evidence before them.” State v. Bunker, 38 Kan. 737, 741, 17 Pac. 651 (1888).
Consistent with our constitution, Kansas enacted K.S.A. 22-2602, which provides: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” An exception is made where the crime occurs in more than one county as provided by K.S.A. 22-2603: “Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
K.S.A. 21-3734 was enacted by the Kansas Legislature in 1969. Prior to 1969, K.S.A. 1965 Supp. 21-652 proscribed similar activity under the heading: “Unlawful ácts concerning security interests; penalties.” This statute proscribed the selling, injuring, or otherwise disposing of personal property subject to a security interest. There was no mention of the resultant impairment of the secured interest. K.S.A. 1965 Supp. 21-652 also proscribed only the disposition of the collateral. Under this statute, venue would be proper only in the place in which the collateral was disposed. The same is also true of prior statutes governing this area such as G.S. 1949, 58-318, which was entitled: “Injuring destroying, concealing, unlawful sale or disposal; penalties” and G.S. 1915 § 6513, entitled “Injuring, destroying or concealing mortgaged property or selling or disposing of same without written consent of mortgagee.”
Unlike its predecessors, K.S.A. 1994 Supp. 21-3734 is concerned not only with the fate of the collateral but also the resultant damage to the security interest. K.S.A. 21-3734 was passed as part of tbe general overhaul of the criminal code conducted in 1969. Unfortunately, there is no legislative histoiy indicating why the current statute focuses on the impairment of the security interest.
The change in our present statute governing impairment of a security agreement was enacted after passage of the Kansas Uniform Commercial Code, K.S.A. 84-1-101 et seq. (L. 1965, ch. 564, § 1, January 1, 1966). The Kansas Uniform Commercial Code, and particularly Article 9 dealing with the type of transaction we examine in this case, reflects this state’s recognition of the rights, duties, and responsibilities of those dealing in the modem world of commercial transaction. The Code’s definition and use of the term “security interest,” the same term used in the criminal charge we now consider, sheds light on the question posed by this appeal.
A security agreement under the Kansas Uniform Commercial Code means an “agreement which creates or provides for a security interest.” K.S.A. 1994 Supp. 84-9-105(1)(l). There is no question that the defendant and Ray Shepherd Motors, Inc., entered into a “security agreement” with respect to the vehicle sold to the defendant. A security interest is defined as an “interest in personal property . . . which secures payment or performance of an obligation.” K.S.A. 1994 Supp. 84-1-201(37). Under the stipulated facts of this case, Ray Shepherd Motors, Inc., had a “security interest” in the vehicle disposed of by the defendant.
In order for there to be an impairment under K.S.A. 21-3734, the interest of the creditor must exist. Under the Kansas Uniform Commercial Code, certain requirements must be fulfilled for the creditor s security interest to “attach” and become “enforceable.” As it relates to this case, K.S.A. 1994 Supp. 84-9-203(1) provides that “a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach” unless (a) the debtor has signed a security agreement, (b) value has been given, and (c) the debtor has rights in the collateral. Again, there is no dispute that all three conditions were met and completed in Bourbon County, Kansas.
The defendant, after completing all the requisite acts to effect her ownership of the vehicle in Kansas, disposed of the vehicle subject to the security interest of Ray Shepherd Motors, Inc., in the state of Missouri. Her disposition of the vehicle resulted in the impairment of the security interest in that the attached security interest was no longer “enforceable against the debtor.” K.S.A. 1994 Supp. 84-9-203(1). Thus, while the disposition of the vehicle, which was the collateral subject to the security interest, may have occurred out of state, the effect of that act was to impair the attached security interest held by the secured lienholder in Bourbon County, Kansas.
The trial court considered, in its order of dismissal, the territorial applicability of the Kansas Criminal Code to the transaction involved. K.S.A. 21-3104 provides:
“(1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.
“(3) A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.
“(4) It is not a defense that the defendant’s conduct is also a crime under the laws of another state or of the United States or of another country.
“(5) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.”
After reviewing the above statute the court concluded:
“[T]he only part of that statute [K.S.A. 21-3104] which could apply is subsection (a). It is arguable that the crime was committed wholly or partly within this state. The State could argue, with some force, that when the interest of Ray Shepherd Motors was inadvertently left off the title of Defendant’s vehicle and the vehicle was subsequently traded in the State of Missouri, Defendant formulated the intent to trade the vehicle without disclosing the interest of Ray Shepherd’s while Defendant resided in Kansas. This theory would undoubtedly give the State of Kansas jurisdiction.”
The court then discussed venue and concluded that under the crime charged, the disposition of the vehicle gave rise to the charge and because that disposition occurred in Missouri, venue did not lie in Kansas.
Unlike the trial court, we do not limit our consideration to K.S.A. 21-3104(1)(a), but look to the provisions of K.S.A. 21-3104(2). In this case, the proximate result of the disposition of the vehicle in Missouri was the impairment of the attached security interest of Ray Shepherd Motors, Inc., which was rendered unenforceable. By reason of the Missouri disposition, the lienholder was no longer able to realize its interest in tire vehicle. While the lienholder may still initiate an action based on the debt, the lienholder is no longer able to enforce its security interest in the collateral against the debtor in Kansas.
The disposition of the vehicle in Missouri has independent legal significance in Kansas, rendering the interest of the lienholder no longer enforceable. The sale in Missouri is the proximate cause of the impairment of the lienholder’s rights in Kansas under the security agreement. In accord with K.S.A. 21-3104(2), “the proximate result of such act occurs within the state,” viz., the impairment of the enforcement against the debtor with respect to the collateral occurred in Kansas. K.S.A. 1994 Supp. 84-9-203(1).
Having made the determination that Jurdan is subject to prosecution under Kansas law, we now address the question of whether venue is proper in Bourbon County. We begin by noting that the contacts the defendant had with Bourbon County, Kansas, are in deed significant. She executed a security agreement with Ray Shepherd Motors, Inc., in Bourbon County after mating a decision to purchase a vehicle from the dealership. She received the vehicle, accepted possession, obtained title, and completed all the necessary requisites for ownership of the vehicle in Bourbon County.
In addition, we note that in defining the offense with which the defendant was charged, K.S.A. 1994 Supp. 21-3734 first states the crime as “impairing a security interest,” which is then followed by language setting forth the acts which constitute impairment. The crime is the impairment of the security interest, and while under the facts of this case the act of disposing of the vehicle, an essential element of the offense, occurred in Missouri, the proximate result of the act was the impairment of the security interest in Bourbon County, Kansas. The Missouri disposition had independent legal significance in Bourbon County by rendering Ray Shepherd Motors, Inc.’s security interest unenforceable. The impairment of this interest is the crime proscribed in K.S.A. 1994 Supp. 21-3734. Whether venue may also exist in the county where the property is disposed of is not a question raised by this appeal. Consequently, we express no opinion on this question.
Finally, the result we reach in this case is consistent with our venue statute because the Missouri disposition had the proximate result of impairing the security interest in Kansas by rendering it unenforceable. Moreover, requiring the defendant to respond to this charge in Bourbon County under the facts of this case comports with “ '[t]he provision for trial in the vicinity of the crime ... a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.’ ” Platt v. Minnesota Mining Co., 376 U.S. at 245.
We conclude that venue was proper in Bourbon County, Kansas, because the defendant’s out-of-state act proximately caused impairment of the security interest in Bourbon County. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded. | [
-48,
-20,
112,
60,
14,
-32,
40,
-102,
82,
-95,
38,
-45,
-23,
-54,
4,
57,
-18,
29,
116,
105,
-43,
-78,
51,
-120,
82,
-77,
-47,
-35,
-69,
75,
-28,
-42,
76,
112,
74,
93,
6,
-56,
-57,
88,
-114,
4,
-104,
97,
-39,
-118,
-80,
-85,
22,
11,
117,
-113,
-86,
46,
27,
98,
105,
40,
123,
45,
-64,
-16,
-53,
5,
127,
23,
-93,
4,
-100,
5,
-40,
46,
-104,
57,
48,
-23,
115,
-74,
-122,
116,
111,
-103,
-88,
38,
98,
2,
20,
-51,
-20,
-120,
46,
-10,
31,
-90,
-104,
120,
3,
43,
-106,
-99,
125,
22,
6,
-4,
-17,
5,
93,
108,
3,
-50,
-112,
-111,
77,
49,
-102,
79,
-1,
-123,
48,
97,
-51,
-26,
93,
87,
114,
-69,
-114,
-76
]
|
The opinion of the court was delivered by
Larson, J.:
Dale M.L. Denney appeals from his convictions of two counts of aggravated criminal sodomy, two counts of aggravated sexual battery, two counts of aggravated weapons violation, and one count of aggravated battery, in two separate cases consolidated for trial.
Denney claims the trial court erred in failing to give a limiting instruction and an instruction on the lesser included offense of attempted aggravated sexual battery, and that his trial counsel was ineffective.
The evidence in both cases was extensive and uncontroverted by Denney. We will briefly summarize the testimony.
Case No. 93 CR 1268
The victim, A.L., testified that on July 16,1993, she went to see Denney, a former boyfriend, to collect a $95 debt. A.L. interrupted a conversation between Denney and a female, who immediately left. Denney accused A.L. of ruining his chance for a sexual encounter.
A.L. went with Denney to his apartment after he indicated he would repay the indebtedness. But, when they entered the apartment, Denney informed A.L. he did not have the money. Denney made several unsuccessful sexual advances toward A.L., and when she tried to leave, Denney refused to allow her to do so and started beating her on the head with a closed fist. A.L. fell and Denney choked her until she blacked out.
When A.L. regained consciousness, Denney had placed a belt around her neck, which he used to pull her to the floor face down. He then proceeded to remove her clothes, rubbed his penis with Vaseline, and penetrated her anus with his penis. Denney continued to beat her on the head and stated he was going to kill her.
Denney sodomized A.L. a second time after moving her to the couch. He then walked to the kitchen, where he grabbed a knife and placed it at her throat while she was allowed to go to the bathroom.
After leaving the bathroom, Denney kept A.L. at knifepoint and continued to threaten her, her family, and her friends. Denney attempted intercourse with A.L., but discontinued doing so because she was unable to breathe.
Denney allowed A.L. to put her shorts back on and said he was going take her to the hospital. Denney continued to hold the knife to A.L.’s throat while pushing her to die floor so she could attempt to find her keys. A.L. was successful in distracting Denney, man aged to unlock the apartment door, and ran screaming from the apartment. •
Denney ran after A.L. and continued to beat her. A neighbor, Theresa Williams, intervened, and Denney fled. Williams called the police and paramedics, and A.L. was taken to the hospital. She had multiple bruises on her face, her eyes were swollen shut, her nose was broken, and she had abrasions and scrapes on her body. The rape kit revealed no evidence of seminal material, although testimony indicated this was not necessarily indicative of whether penetration occurred.
Evidence recovered by police from Denney’s apartment corroborated A.L.’s statement, although a knife fitting the sheath found on the floor and the victim’s cash were never recovered. Bloodstains found on the couch cushions and A.L.’s clothing were of a type that a police chemist testified could have come from A.L.
At trial, Dr. William May, the emergency room physician who attended A.L., testified that the genital examination revealed no trauma. He also testified as to A.L.’s facial injuries revealed in photographs taken after the incident.
Case No. 93 CR 1343
The victim in this case, P.D., is Denney’s sister-in-law. She testified Denney had lived with her and her husband for several months in 1992 but moved out after she ordered her husband to make him leave. Approximately a week later, in October 1992, Denney returned to the house around 2:00 a.m., when P.D.’s husband was at work and she was home with her children.
After Denney was admitted, he went to the kitchen, obtained a steak knife, told P.D. he “wanted” her, and pushed her onto the bed while holding the steak knife to her throat. After undressing her, he touched her vagina with his penis, and she threw him off her. As P.D. was lying face down, Denney placed his penis inside her anus. After sodomizing P.D., Denney ejaculated on the bedroom floor.
P.D. told her husband about the attack but refrained from filing a complaint with the police after being begged not to do so by Denney’s mother. P.D.’s husband drowned in June 1993, and P.D. was contacted by the police after A.L. informed them that Denney had previously confessed to his sister that he had obtained a knife and sodomized P.D.
Denney s parole officer testified Denney was released from prison in 1992 after being incarcerated for felony convictions of rape and aggravated burglary. The trial court admitted a certified journal entry of the convictions into evidence.
The jury convicted Denney on all charges. He was sentenced to a controlling term of 36 years to life in 93 CR 1343 and a term of 228 months in 93 CR 1268, to run consecutively.
Did the trial court err in failing to give an instruction limiting the use of prior crimes evidence ?
To prove an essential element of the aggravated weapons violation charges (that Denney had possessed a prohibited weapon within 5 years of being convicted of or being released from imprisonment for a felony), the State introduced evidence of Denney’s previous convictions for rape and aggravated burglary.
At the instructions conference, defense counsel requested the following instruction to limit the purpose for which the jury could consider the prior crimes evidence:
“Evidence has been admitted tending to prove 'that the Defendant has been convicted of crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the previous conviction.”
The trial court summarily declined to give the requested instruction, stating: “Case law is very clear that it’s not necessary.”
Denney argues the trial court’s failure to give the requested limiting instruction allowed the jury to infer he had the propensity to commit crimes: He strongly contends the error was highly prejudicial because the prior crimes were similar to the crimes for which he was on trial and, after a proper request was made, it was mandatory for the jury to be instructed that the evidence of the prior crimes could only be used to prove an essential element of the aggravated weapons violation charges.
The specific statutory basis for Denney’s claim is K.S.A. 60-406, which states:
“When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”
The interpretation of a statute is a question of law, upon which our review is unlimited. State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994).
In this case it is important to remember that Denney’s counsel specifically requested the limiting instruction. Had he not done so, the rule of State v. Knowles, 209 Kan. 676, Syl. ¶ 3, 498 P.2d 40 (1972), would allow us to readily affirm this conviction: “Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.”
Denney contends State v. Gander, 220 Kan. 88, 90-91, 551 P.2d 797 (1976), is authority for the rule that a limiting instruction is required when requested. The central issue in Gander, however, was alleged error based on the trial court’s refusal to sever the weapons charge from battery and robbery counts because the prior convictions necessary to prove the weapons charge would prejudice the jury on the other charges. After holding that severance was not required, the Gander court went on to state:
“Moreover, in an abundance of caution, the trial court gave a limiting instruction to the effect that the evidence of the prior conviction should only be considered in connection with the weapons violation. The evidence was admissible without regard to K.S.A. 60-455, so the instruction was not required in the absence of a request. (State v. Knowles, 209 Kan. 676, 498 P.2d 40, Syl. Para. 3.) It did however, help to offset any prejudice resulting from the joinder.” 220 Kan. at 90-91.
The State concedes the trial court should have given the requested instruction but contends the error does not require reversal. The State argues that the testimony of both victims was clear and uncontroverted that knives were held to their throat and that both were sodomized at knifepoint and intentionally touched in a manner designed to satisfy defendant’s sexual desires. Further, A.L.’s claims that Denney beat her severely are undisputed. In addition, her claims are reinforced by the testimony of tire emer gency room doctor and detailed in pictures introduced into evidence. The State argues the error did not prejudice Denney’s rights and should be considered harmless.
Denney contends the admission of prior crimes evidence when relevant to prove a material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under K.S.A. 60-455, is analogous to this issue. Where evidence of prior crimes is so. admitted, a limiting instruction is usually required. See generally PIK Crim. 3d § 52.06.
Central to Denney’s argument is the holding of State v. Roth, 200 Kan. 677, Syl. ¶ 2, 438 P.2d 58 (1968), where we stated:
“Where evidence is admissible under the provisions of K.S.A. 60-455 as tending to prove intent, knowledge and absence of mistake or accident but is not admissible under the provisions of K.S.A. 60-421 to impair the credibility of the defendant who had taken the witness stand in his own defense, the trial court must so instruct the jury.”
Denney’s reliance on Roth is misplaced. In Roth, the requirement of a limiting instruction arose in the context of K.S.A. 60-455, and the court found it important that Roth had placed his credibility in issue by testifying on his own behalf. Here, Denney did not testify, and die prior crimes evidence is admissible under K.S.A. 1993 Supp. 21-4202.
Properly analyzed, the cornerstone of the Roth rule requiring a limiting instruction is not K.S.A. 60-455, but rather K.S.A. 60-421, which provides in applicable part: “Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility.” Roth’s credibility was at issue because he testified on his own behalf. See also State v. Whitehead, 226 Kan. 719, 722, 602 P.2d 1263 (1979).
Roth recognized that when evidence of a prior crime has been admitted and the jury has not been instructed as to how the evidence might be relevant to the issues before it, the risk of prejudice from misuse of the evidence before it might be so great as to require reversal. In the absence of an instruction limiting the usage of K.S.A. 60-455 evidence, the jury is left to speculate as to how the prior evidence is to be used.
Such is not the case here because, although a limiting instruction, PIK Crim. 3d § 52.06, Comment III (B)(5), should have been given, the.jury was made aware of the proper consideration and use of the evidence of the prior conviction through the instruction relating to the prior conviction being an essential element in the proof of the weapons violation charge. Consequently, the risk of prejudice here is materially lessened, and the need for reversal is open to doubt. The appellate court is justified in looking to all of the facts and circumstances of the case to determine if the failure to give the limiting instruction, even when it was requested, is reversible error.
Having determined that reversal of this case is not automatically required, the issue then becomes whether the error was of such a magnitude that reversal is nevertheless indicated. This leads us to a discussion of the background for our harmless error rule. K.S.A. 60-261 states:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating,' modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Similarly, K.S.A. 60-2105 directs:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, the court shall 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, without regard to technical errors and irregularities in the proceedings of the trial court.”
There are a myriad of cases citing these two statutory provisions where criminal and civil results of trial courts have been upheld as not being “inconsistent with substantial justice,” as having “not affected” the substantial rights of the parties, and as being merely “technical errors and irregularities.” See, e.g., State v. Damewood, 245 Kan. 676, 684, 783 P.2d 1249 (1989); State v. Alexander, 240 Kan. 273, 276, 729 P.2d 1126 (1986).
Where the error is of a federal constitutional magnitude, before a reviewing court can determine the error is harmless, the court must find beyond a reasonable doubt that there is little, if any, likelihood that the error has changed the outcome of the trial. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); State v. Cady, 254 Kan. 393, 405, 867 P.2d 270 (1994).
We have specifically held in Kansas that “ ‘[w]here the evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission of certain' other evidence could not have affected the result of the trial, such admission is harmless error.’ ” State v. Juarez, 19 Kan. App. 2d 37, 41, 861 P.2d 1382 (1993) (quoting State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 [1976]).
Although the standard of “harmless beyond a reasonable doubt” as applied to errors of a federal constitutional magnitude was recognized as more stringent than the one imposed by Kansas statutes, see State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), in recent years a similar standard has been applied in Kansas to errors not couched as constitutional violations. See State v. Tyler, 251 Kan. 616, Syl. ¶ 7, 840 P.2d 413 (1992); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982). Where the evidence of guilt is of such a direct and overwhelming nature that it can be said that the challenged error could not have affected the result of the trial, it is harmless beyond a reasonable doubt and reversal is not required.
We need not again recite the uncontroverted testimony of each victim. The evidence in this case was overwhelming. The insignificant inconsistencies in the victims’ testimony paled by comparison to the clarity and comprehensiveness of the evidence of each element of each crime. In addition, the prior crimes evidence was utilized only to satisfy the elements of the weapons charge and was referred to only briefly as being necessary for that purpose. Further, because Denney did not testify, his credibility was never an issue during the trial.
We hold the trial court’s failure to give the requested instruction is harmless error beyond a reasonable doubt under the facts and circumstances of this case. In so holding, however, we caution trial judges that a limiting instruction should be given when requested by the defendant in every case where prior crimes evidence is admissible for one purpose but not for another, as is mandated by K.S.A. 60-406.
The trial court did not err in failing to instruct the jury on the lesser included offense of attempted aggravated criminal sodomy in 93 CR 1343.
Denney argues the trial court erred in failing to instruct the jury on the lesser included offense of attempted aggravated criminal sodomy in the case involving his assault of P.D. (93 CR 1343). He contends the instruction was necessary because P.D.’s testimony was inconclusive as to whether he actually penetrated her anus.
K.S.A. 21-3107(3) requires the “trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
That duty is more fully set forth in State v. Lewis, 256 Kan. 929, 933, 889 P.2d 766 (1995), in the following manner:
“When there is evidence upon which a conviction of a lesser included offense could be based, die district court has an affirmative duty to instruct the jury on an appropriate lesser included offense even if . . . the defendant did not request the instruction. [Citation omitted.] The evidence must be viewed in the light most favorable to the defendant and it may be inconclusive, unsatisfactory, and weak. [Citation omitted.] The instruction need not be given, however, if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. [Citation omitted.]”
The testimony shows P.D. at times confused the difference between penetration and ejaculation but, when viewed in its entirety, shows beyond a reasonable doubt that Denney’s penis penetrated her anus and that he ejaculated on the floor. This testimony is totally consistent with P.D.’s statement to Detective Wishall. It is only if P.D.’s answer to a question which appears to have been misunderstood is viewed in isolation and out of context that a conclusion could be reached that penetration did not occur.
In considering P.D.’s testimony as a whole, there is no evidence that would permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of attempted aggravated sodomy. The trial court did not err in failing to give an instruction on the lesser included offense.
The trial court did not err in denying Denney’s claim of ineffective assistance of counsel.
The trial court considered and denied Denney’s pro se post-trial motion containing 17 allegations of ineffective assistance of counsel. It found the allegations lacked a factual basis and, even if considered, the result of the trial would not have been different given the overwhelming evidence against Denney.
Our test in determining the ineffective assistance of counsel in a criminal case is well known: “To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different had the defendant received effective assistance.” State v. Tucker, 253 Kan. 38, Syl. ¶ 5, 853 P.2d 17 (1993); see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 202 (1984).
On appeal, our function is to determine whether the findings of the trial court are supported by substantial competent evidence and are sufficient to support its conclusions of law. We accept as true the evidence and inferences drawn which support or tend to support the findings of the judge. Taylor v. State, 252 Kan. 98, 103-04, 843 P.2d 682 (1992). Denney has the burden of overcoming the presumption that counsel’s performance was reasonable. See State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994).
A careful review of Dr. May’s trial testimony reveals that the trial counsel sufficiently examined him concerning trauma to A.L.’s anal tract. Dr. May’s evidence was clear and as helpful to Denney as possible. If expanded, the possibility of elaborating on the apparent injuries A.L. received was not only possible but likely. Ad ditionally, any failure to inquire of the doctor about the presence or absence of petroleum jelly is not ineffective assistance as the answer would readily have been inferred from his testimony.
Denney’s allegations of ineffective assistance of counsel are without merit.
Affirmed. | [
48,
108,
-99,
-66,
25,
96,
42,
-124,
48,
-93,
-77,
-13,
-85,
-53,
64,
105,
-6,
111,
84,
96,
-39,
-9,
39,
97,
-66,
123,
113,
-44,
-77,
-50,
-10,
-11,
28,
48,
-54,
81,
98,
-64,
-27,
84,
-114,
5,
-87,
104,
-46,
1,
34,
59,
68,
11,
33,
14,
-13,
43,
22,
-17,
73,
108,
75,
-3,
80,
49,
27,
-107,
-51,
48,
-77,
6,
-100,
41,
-8,
30,
-103,
-79,
0,
-24,
58,
-122,
-124,
117,
93,
-119,
36,
99,
99,
0,
77,
85,
-95,
-119,
63,
127,
-68,
-122,
-104,
104,
8,
77,
-66,
-39,
100,
84,
47,
114,
125,
92,
121,
68,
-119,
-49,
-108,
-111,
-49,
60,
90,
-22,
-29,
63,
1,
117,
-51,
-94,
84,
85,
122,
-109,
-98,
-78
]
|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Douglas Dean Eastepp, an attorney admitted to the practice of law in Kansas. Respondent is also admitted to the practice of law in Colorado and was registered as a resident of Colorado Springs at all pertinent times herein.
On November 7, 1994, the Colorado Supreme Court suspended respondent from the practice of law for a period of 3 months for ethical violations. People v. Eastepp, 884 P.2d 305 (Colo. 1994). Respondent self-reported the Colorado disciplinary action to the Clerk of the Appellate Courts of the State of Kansas, and these proceedings were then commenced.
The opinion of the Colorado Supreme Court sets forth the underlying facts as follows:
“The respondent was the president of Colorado Concrete Manufacturing Company (CCMC) in Colorado Springs. He owned twenty-six percent of the shares of CCMC, and the remaining shares were owned by Mr. and Mrs. Don Hogue of Topeka, Kansas, the parents of the respondent’s former wife. The respondent had been previously involved in two other companies with the Hogues, and he sold his shares in those companies to the Hogues at book value.
“In 1980, the respondent and the Hogues executed a buy and sell agreement, which allowed CCMC to purchase the stock of a deceased stockholder, and which was to be funded by the proceeds of life insurance policies that CCMC purchased for each stockholder. The Hogues also executed personal guarantees on loans made to CCMC. The hearing board found that, upon the Hogues’ deaths, their interest in CCMC would be purchased by CCMC with the respondent as the remaining shareholder, but the Hogues’ estates would remain hable for the indebtedness.
“From 1980 through 1989, CCMC operations expanded three-fold, and the respondent earned a good business reputation. In 1989, however, CCMC experienced severe financial difficulties due to decreasing construction in the Colorado Springs area. The company remained solvent because the Hogues infused money into the business. The Hogues became concerned, however, about the increased indebtedness of the company for which they were hable. With the advice and active involvement of their lawyer, they asked the respondent to terminate the buy and sell agreement. The respondent steadfastly refused and the relationship between the respondent and the Hogues deteriorated.
“The Hogues hired a consultant to review CCMC’s finances, who recommended that the company sell assets, including three company vehicles. The Hogues and their lawyer instructed the.respondent in May 1989 to sell the vehicles, one of which was a 1985 Lincoln Continental Town Car that the respondent was using as a company car. The blue book value of the Lincoln was approximately $9,000.
“Instead of selling the vehicles as instructed, the respondent and a relative (another CCMC employee), took them to an automobile dealer in order to have titles created showing a transfer of the vehicles to the dealer. The respondent signed assignments of title showing transfers of the vehicles to an automobile auction company in May 1989. The respondent then engaged in a transaction designed to appear as if a third party purchased the Lincoln from the dealer for $500. The respondent sent a letter to the consultant, with copies to Mr. Hogue and his lawyer, indicating that he had disposed of the vehicles as instructed.
“The respondent in fact retained possession of the Lincoln, and put about 500 miles on the car before he placed it on a consignment lot. The respondent’s relative and another CCMC employee kept the other two vehicles, which had been their company cars. In August 1989, the respondent told his relative to modify certain documents and to have the three vehicles titled and recorded in the names of three other persons so that the respondent and the other CCMC employees would not appear as the vehicle owners in any public documents.
“The relationship between the Hogues and the respondent did not improve, and the respondent’s employment was terminated in early August 1989. The Hogues denied liability for unemployment benefits and refused to pay the respondent any pension benefits. The respondent was later awarded unemployment benefits, and a referee for the Division of Employment and Training concluded that the respondent was forced to quit because of the pressure exerted by the Hogues regarding the company’s finances and the buy and sell agreement.
“The respondent repeatedly informed the Hogues and their lawyer that he had sold the Lincoln to the automobile auction company. Because the purported purchase price was far less than the actual value of the vehicle, however, the Hogues hired a private investigator, who found the Lincoln for sale on the consignment lot for $10,000. The investigator also discovered that the Lincoln had been placed on the consignment lot by the respondent, although it was titled in the name of a third person. The Hogues’ lawyer asked the district attorney in Colorado Springs to investigate the matter, and in about September of 1989 the respondent admitted to the detective assigned to the case that he had never sold the vehicles. The respondent subsequently returned the Lincoln to CCMC, and it was later sold for $7,500. The district attorney elected not to file criminal charges against the respondent.
“In addition, shortly after he left CCMC, the respondent gained access to the company offices after business hours and took some original financial statements. He had asked for copies of those statements before, but they had not been provided. About a week after he took them, the respondent returned the documents before the company discovered they were missing.” 884 P.2d at 305-07.
In the Colorado proceeding, die following then occurred:
“The respondent admitted, and the hearing board found, that the foregoing conduct violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer’s fitness to practice law). The hearing board also determined that the respondent violated C.R.C.P. 241.6(3) (misconduct involving any act or omission violating the highest standards of honesty, justice or morality is grounds for discipline).
“In addition, the hearing board concluded that the respondent’s conduct violated C.R.C.P. 241.6(5). The fact that no criminal charges were filed against the respondent would not preclude a finding that he had violated C.R.C.P. 241.6(5) (any act or omission violating the criminal laws of a state or of the United States constitutes ground for lawyer discipline; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action); People v. Morley, 725 P.2d 510, 514 (Colo. 1986) (conviction of criminal offense is not a condition precedent to attorney disciplinary proceedings involving the offense, nor is acquittal a bar). The majority of the board found that the respondent violated the felony theft and felony aggravated motor vehicle theft statutes.” 884 P.2d at 307.
The only exception filed by respondent in Colorado challenged the finding by a majority of the board that respondent’s actions involved criminal conduct. The Colorado Supreme Court upheld the majority as to criminal conduct being involved and suspended respondent for a period of 3 months. Respondent was reinstated in Colorado on March 8, 1995.
Supreme Court Rule 202 (1994 Kan. Ct. R. Annot. 188) provides, inter alia:
“A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.”
The hearing panel herein adopted the Colorado findings as its own and recommended respondent be suspended from the practice of law for a period of 1 year. We accept that recommendation.
It Is Therefore Ordered that Douglas Dean Eastepp be suspended from the practice of law for a period of 1 year in accordance with Supreme Court Rule 203(a)(2) (1994 Kan. Ct. R. Annot. 189).
It Is Further Ordered that Douglas Dean Eastepp shall forthwith comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217) as to any Kansas clients.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent. | [
-80,
120,
-104,
-84,
27,
-32,
58,
58,
93,
-31,
101,
83,
-17,
-40,
-108,
109,
-61,
109,
-60,
110,
-43,
-77,
103,
-63,
66,
-13,
-71,
-35,
-78,
93,
-28,
-57,
73,
50,
-118,
5,
-126,
66,
-63,
28,
-114,
2,
10,
-32,
89,
65,
48,
107,
17,
15,
49,
-113,
51,
34,
17,
-18,
9,
46,
111,
-19,
80,
-7,
-37,
5,
127,
23,
-95,
4,
-100,
7,
-40,
63,
-104,
-72,
8,
-24,
51,
-74,
-58,
-44,
39,
-101,
8,
98,
98,
35,
-63,
-89,
-76,
-120,
14,
-66,
13,
-89,
-2,
88,
59,
9,
-74,
-35,
116,
22,
-125,
-4,
-26,
-115,
29,
-19,
7,
-114,
-10,
-110,
30,
117,
-36,
2,
-17,
-121,
48,
68,
-114,
-94,
94,
-33,
122,
-97,
-118,
-16
]
|
The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is who is entitled to a certain promissory note.
The facts giving rise to the controversy may be summarized as follows: Some years prior to 1930, the Pretty Prairie Cooperative Grain Company was incorporated with an authorized capital of $50,000 divided into 250 shares of a par value of $200 each. It engaged in business, and on June 1,1930, stock to the amount of $4,800 had been subscribed and paid for by thirty-six stockholders. Apparently the business had been conducted at a loss, for about the latter date it was determined to get additional capital but, before seeking it, that the impaired capital should be made good. The financial statement of June 1, 1930, showed that taking the assets at values therein fixed and offsetting the admitted liabilities, to put the outstanding capital stock at par required payment into the treasury of $13,868.44. To accomplish this end, and so that future stockholders paying par for treasury stock would be protected, twenty-four stockholders executed to the order of the company their promissory note, dated June 1, 1930, due thirty days after date, for the sum of $13,868.44. At the same time, a contract was made between the company, party of the first part, and the twenty-four signers, parties of the second part, a “whereas” clause reciting second parties executed the notes as accommodation makers, and the contractual clause being as follows:
“And we and each of us, do further authorize and instruct the officers of the said Pretty Prairie Cooperative Grain Company to retain the net profits accruing and earned by said company belonging to each of us and apply the same in payment of the said promissory note hereinbefore described, in whole if our share of the net profits be sufficient to pay and liquidate said note, and if not, that they be applied to the part payment of said note, and if said net profits be more than sufficient to pay said note in full, that the remaining portion thereof shall be apportioned by the officers of said company to.each of us in accordance with our respective shares owned by each of us.”
Some payments were made on the note which we need not notice. Treasury stock was thereafter sold at par. On the balance sheet of the company of May 31, 1931, the note was carried as an asset at $12,878.89, which seems to have been the balance due on the principal, and on the balance sheet of May 31, 1932, it was carried as an asset at the same figure. At least for a time prior to May 12, 1933, the business of the company was unprofitable, for on that date it was indebted to defendant McGowan, who was not a maker of the note, in the sum of $200, to defendant Pargeter, who was not a signer, for wheat delivered in the sum of $972.90, and to a number of the signers of the note, in varying amounts for wheat delivered. The company was also indebted to other creditors, and was, in fact, insolvent. It is here noted that certain receipts were set up in an account and carried as “surplus,” applicable to the payment of the note. At a special stockholders’ meeting on April 22, 1933, the following proceedings were had:
“It was moved and seconded that we declare all future settlement wheat sold at the price of 53 cents per bushel. Motion carried. It was moved and .seconded that our nonstockholders have preferred claims in payment for future settlement wheat. Motion carried.”
. We note there was controversy as to whether in fact there was any surplus, and if so whether it belonged to the signers of the note or to all of the stockholders, that is, the corporation. At a special stockholders’ meeting held May 5, 1932, it was voted to apply this “surplus” of $3,388.37 on the note, and a motion was made and carried to authorize the board of directors to collect the note. Notwithstanding the action at the special stockholders’ meeting on April 12, 1933, the company, after. giving credit for the “surplus” of $3,388.37, assigned the note to the defendants, who were all stockholders and creditors of the company, the consideration being the satisfaction of McGowan’s note for $166.30, his salary claim for $33.70, and the cancellation or satisfaction of claims for wheat previously delivered by the remaining assignees in varying amounts at the stipulated price of 53 cents per bushel. At a stockholders’ meeting held June 2, 1933, it was voted that the company deed the elevator and property covered by the mortgage of $7,500 to the mortgagee in full satisfaction.
On June 7, 1933, in an action in the district court, the company was declared insolvent, and a receiver was appointed. The assets of the company which he received consisted of some personal property and equipment, a small stock of goods and about $1,000 of accounts receivable. The liability for wheat received and not paid for, according to claims filed in the receivership, was about $15,000. There were also some other liabilities, and in addition thereto, there are to be considered the claims offset against the note. The receiver brought this action to set aside the credit given on the note and the assignment of it, and to recover possession of the note.
At the trial, the above facts were either admitted or developed by the evidence and it is not deemed necessary the evidence be further detailed. The trial court, in a written decision, held there was no surplus of $3,388.37 and that it was wrongfully applied and was not a proper credit; that the note was not an accommodation note nor were the signers accommodation signers within the meaning of R. S. 52-306; that the note represented a voluntary assessment by the then stockholders in order to sell stock to new purchasers at par; that although a corporation when insolvent may prefer creditors, this note was an obligation for capital stock and as such constituted a trust fund for the benefit of general creditors of the corporation. The journal entry of judgment shows the trial court held the receiver should recover possession of the note; that the note was not subject to the claimed credit of $3,388.37, nor subject to any credit claimed to be due the defendants on account of wheat stored with the insolvent corporation or on account of other obligations due from the corporation, but that they had claims as general creditors, and that the assignment should be set aside. A motion for a new trial was denied, and the defendants appeal.
The question presented by the appeal is this: Where stockholders of a corporation, who have paid their original stock subscription in full, deliver to the corporation their note for the purpose of making good impaired capital so that the company may continue in business and sell treasury stock at par, and the note is thereafter carried as an asset and stock is sold, and thereafter some of the makers of the note and other stockholders and other persons became creditors of the company, which becomes insolvent, does the note become an asset of the corporation in the nature of a trust fund for the benefit of all the creditors, or may the corporation assign the note to ten stockholders, eight of whom are makers of the note, in satisfaction of claims totaling the balance said to be due upon the note?
Appellants’ principal complaint is based on the contention the trial court erred in holding that the note, carried as an asset of the corporation until it became insolvent, constituted a trust fund for the benefit'of ■ all the creditors of the corporation, and prevented the corporation from preferring creditors. With respect to the contention made by the pleadings that the note was an accommodation note and without consideration, it. might be sufficient to say that the contract made at the time it was given, and a paragraph of which is quoted above, shows an arrangement for payment of the note which is inconsistent with any claim of accommodation. Although the contract was not as complete, the contract and the admitted facts show a situation quite similar to that in Farmers Equity Coöp. Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421, where it was said:
"The defendant was a stockholder in the plaintiff association and interested in its welfare and progress. He was interested in seeing that its business was earned on. The execution by the other stockholders of their notes for the benefit of and to aid the company in which the defendant was interested was a valuable consideration for the execution of his note.” (p. 130.)
And the maker of the note was held liable. A similar situation was involved in Farmers Coöperative Union v. Reynolds, 127 Kan. 16, 272 Pac. 108, where it was held:
“Where a corporation is in financial difficulties, its shareholders may bind themselves by resolution at a stockholders’ meeting and by execution and delivery of their several promissory notes responsive thereto, to strengthen its credit, and to guarantee the members of the corporation’s board of directors against liability or loss through their individual obligations on behalf of the corporation; and a defense to such a stockholders’ note based upon want of consideration and want of mutuality is not good.” (Syl. U 3.)
We hold the note was not given for the accommodation of the grain company nor was it without consideration flowing to the makers.
It is urged that under Plow Co. v. Rude, 60 Kan. 145, 55 Pac. 848, where this court held:
“In the absence of charter or statutory restrictions, and in the absence of .actual fraud, a corporation, though insolvent, and though it has ceased, or determined to cease, doing business, may prefer certain creditors over others, whenever a natural person could do so” (syl. ¶ 2).
a valid preference could be made. In that case this court refused to apply the trust-fund doctrine to the facts of the case. It must be borne in mind, however, that the case did not treat of facts as we have them in the case at bar, for there the preferred creditor was not an officer, agent, director or stockholder of the insolvent company. In the above decision attention is directed to Hays v. Citizens’ Bank, 51 Kan. 535, 33 Pac. 318, where it was held:
“The directors of an insolvent corporation, and who are creditors of the same, cannot, while they continue in the 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 a distribution of the company’s assets.” (Syl.)
Appellants also rely on Morisette v. Howard, 62 Kan. 463, 63 Pac. 756, where it was held:
“A strictly private corporation, owing no peculiar duties to the public, has the same dominion over and power to dispose of its property that an individual has; and, when the exigencies of its business render it necessary, it may, if done in good faith and with the assent of its stockholders, discontinue business and dispose of its entire assets and property, with a view of paying its debts and closing up the affairs of the corporation.” (Syl. H 1.)
The case is distinguishable from the case at bar, for there the purchaser claiming right of possession of certain corporate assets was not connected with the corporation.
In Bridge Co. v. Fowler, 55 Kan. 17, 39 Pac. 727, it was held:
“Where a corporation is heavily indebted to its officers and stockholders, and such officers and stockholders enter into an agreement to discontinue business and divide and distribute the entire capital and assets of the corporation among themselves in payment of the indebtedness which they hold against the corporation, and when in accordance with the agreement they have wound up the business and distributed the assets, and there remains a large indebtedness unprovided for, the transaction will be deemed to be invalid as to any excluded creditor. In such case the property and assets of the corporation will be deemed to be held in trust for the payment of the debts of the corporation, and any excluded creditor will be entitled to pursue it into the hands of any member of the corporation or other person who has taken the same with full knowledge of the facts; and if it has passed out of their hands they may be compelled to account to such creditors, and to contribute pro rata toward the payment of the unpaid debts of the corporation to the extent-of the fund so misapplied.” (Syl. H 1.)
In Brokerage Co. v. Dunn, 91 Kan. 64, 136 Pac. 939, one Chesebro started in business and purchased goods from the brokerage company which he had not paid for when he and others formed a corporation, hereafter called the fruit company, which assumed the obligation, and the brokerage company therefore claimed to be a creditor and entitled to receive the full amount of its claim. Appellee claimed that Collins of the brokerage company was himself the fruit company, and that shares of the fruit company were full payment for all the assets and credit turned over to it. Chesebro testified that Collins furnished him all the goods when he first started business, later procured the incorporation of the fruit company, and that stock issued to Chesebro belonged to Collins, who later advanced moneys for use of the fruit company. We are not concerned with the details of the claim, etc., but in discussing the question of right of off-set, it was said:
“If, as the testimony tends to show, Collins was the Garden City Frui! Company, and that he turned over whatever interest he had in that company, whether it be goods or claims, to pay for the shares of stock issued to Chesebro for him, he is not entitled to set up any claim that he owed to himself as a liability against the corporation. So far as creditors are concerned, the capital stock must be treated as a trust fund pledged for the payment of the debts of the corporation, and one who subscribed for stock must pay for the same either in money or money’s worth. (10 Cyc. 472.)” (p. 66.)
And the holding of the court, as stated in the syllabus, was:
“The capital stock of a corporation is a trust fund for the benefit of the general creditors of a corporation, and one who subscribed for shares of stock must pay for them either in money or in money’s worth.” (Syl. IT 1.)
In Bank v. Milling Co., 101 Kan. 446, 167 Pac. 1036, the milling company, being indebted to the bank for a large sum, entered into an agreement to turn over its property to be converted and sold and the proceeds applied to the payment of the debt. A few days after the agreement was made, a Mrs. Shepard brought suit against the milling company to rescind a sale of milling company stock to her. Ultimately she prevailed. During the pendency of her suit, receivers were appointed for the milling company and sold its assets. Mrs. Shepard intervened in that action and asked for an order directing .payment of her claim. The trial court ruled that she had no right to participate in the funds to the detriment of the bank, and she appealed. This court quoted with approval the definition of the trust-fund doctrine in Hospes v. Northwestern Manuf'g & Car Co., 48 Minn. 174, 50 N. W. 1117, reciting:
“The capital of a corporation is the basis of its credit. It is á substitute for the individual liability of those who own its stock. People deal with it and give it credit on the faith of it. They have a right to assume that it has paid-in capital to the amount which it represents itself as having, and if they give it credit on the faith of that representation, and if the representation is false, it is a fraud upon them; and, in case the corporation becomes insolvent, the law upon the plainest principles of common justice says to the delinquent stockholder, 'Make that representation good by paying for your stock.’ ” (p. 450.)
and held that Mrs. Shepard had a right to participate, saying—
“When a stockholder has satisfied all his obligations as such, and there remains nothing by way of unpaid subscription or liability growing out of his relation as stockholder, and he is in good faith a creditor of the corporation, he stands on an equal footing with other creditors and has the same right to treat the corporation as a stranger and adversary as they have. Under such circumstances he is not required to stand back until other creditors are satisfied, but may proceed along with them on equal terms.” (Syl. If 1.)
While the briefs contain many citations of authorities defining the trust-fund doctrine, and appellants cite those criticising various applications of it, we do not deem it necessary to review them, for here it is undisputed that the note, although not given for original purchase of stock, was given to make good an impaired capital, it was thereafter carried as an asset of the company, other treasury stock was sold on the assumption the impairment of the capital had been made good, and the note was capital of the company and a part of the fund to which creditors were entitled to look for satis-' faction of their claims.
The question whether an insolvent or failing corporation may prefer a stockholder who is a creditor is one on which there is considerable difference of opinion, although in 14a C. J. 901 it is said:
"The weight of authority, however, is to the effect that the corporation cannot prefer its own stockholders over its outside creditors.”
However, in an annotation on right of corporation to prefer creditors, 19 A. L. R. 320 et seq., under that portion dealing with stockholders (page 356), it is said:
. “It is generally held that a preference by a corporation to a stockholder is valid to the same extent as if he were a general creditor. The reason advanced for allowing the preference is that a stockholder does not, except in the exercise of his right to participate in the selection of its officers, have any control over a corporation not equally open to other creditors. If he becomes a creditor he has the same right to receive payment, and the same means of redress in case it is not made, as do the other creditors.” (Citing cases.)
And on page 357 it is said several jurisdictions deny the right of an insolvent corporation to prefer a creditor who is a stockholder, citing cases. No Kansas cases are noted in either division.
In 8 Thompson on Corporations (3d ed.), page 300 et seq., is a discussion of such power, wherein it is said:
“It is a well-settled principle of law that the stockholder who is not a director or other officer may deal with the corporation and the corporation with him in all respects as if he were in no wise interested in the corporation, and the fact of his being a stockholder in no wise detracts from his rights as a creditor. Positive as these rules are, it must be admitted that third persons who are creditors have not an equal advantage with a stockholder. The suggestion as made by some courts that stockholders are afforded special opportunities to take advantage of their knowledge of the embarrassed condition and insolvency of the corporation, has not been satisfactorily answered by the mere assertion that stockholders do net, except in the election of managing officers, have any control over the corporation not equally open to other creditors, and that the corporate business is conducted by instrumentalities created from the charter and not by the stockholders. This suggestion entirely overlooks the pertinent and powerful fact that a stockholder has at all times the right to inspect the corporate books and may be able at any time, with his finger on the pulse of the patient, to know its failing condition, and either demand security for its claim, or proceed to obtain a preference by taking judgment and levying execution on the corporate property and thus by reason of his relation obtain a preference that ordinary creditors are not able to obtain. In line with this view there are numerous holdings against the right of a sotckholder to secure a preference over other corporate creditors.” (p. 301.)
(See, also, 15 Fletcher on Corporations, p. 718, § 7484.) An examination of cases cited in support of the above texts shows those involving rights under preferred stock issues, preferences acquired by loans on a present consideration, others affected by statutory provisions, etc. A discussion of the right is also found in 7 R. C. L. 758 et seq., where the division of authority is noted, it being there said the weight of authority allows such a preference. In discussing the view denying validity, it is said:
“In jurisdictions in which the trust-fund doctrine obtains, an insolvent corporation, of course, has no power to prefer the debt of one of its officers or stockholders, and many courts take the view that an insolvent corporation, though the general right to prefer creditor's may exist, cannot prefer a creditor who is also a director or managing officer of the corporation.” (pp. 759, 760.)
It may well be argued that the officers of the corporation, being in active management, are fully aware of the financial condition and should not be permitted to take advantage of their knowledge to the prejudice of general creditors, but that the stockholders, having voted for the directors, are then in a position to deal with the corporation in the same manner as a stranger to it. This argument is of considerable weight when applied to such corporations as the United States Steel Corporation, the Pullman Car Company, and others of similar size with widely scattered stockholders, but the greater number of corporations in this state include those where the stockholders have a much more intimate knowledge of what the corporation is doing, its financial situation, etc. In view of the fact the trust-fund doctrine has been recognized as the law of this state for over forty years, it seems the better rule to follow that when the corporation is insolvent or in a failing condition, it should not be permitted to so deal with its shareholders who are creditors that they receive.a preferential right to the assets of the corporation to the detriment of the general creditors. They should receive their dues ratably with other general creditors.
Insofar as this case is concerned, however, there is further reason why appellants should not prevail. The record does not show that any of the assignees of the note were directors; in fact, it shows only inferentially there was an active board of directors; but it does show that the giving of the note was arranged at a stockholders’ meeting. The determination to settle with the owners of wheat delivered and unpaid for, at a stipulated price per bushel, and that nonstockholders should have preference in settlement, the delivery of the mortgaged real estate to the mortgagee in satisfaction of that claim, and the authorization to the board of directors to collect the note were all matters that were considered and acted on at stockholders’ meetings. The stockholders were actually directing the conduct of the company’s business to a considerable extent! Cases having to do with preferences to directors may not be strictly in point, but in view of the facts of the case before us may be persuasive.
Jackman v. Newbold, 28 F. 2d 107, 62 A. L. R. 739, bears on the general proposition involved. The directors of a construction company had advanced large sums of money to enable it to carry on. Ultimately the company concluded to wind up its affairs. In so doing, it transferred to the advancing directors paving bonds it had received for work done, in satisfaction of the directors’ claims, leaving little for general creditors. A receiver was appointed and brought suit to recover the bonds or their value, and the directors attempted to justify what had been done. From an adverse decision, director Jackman appealed to the circuit court of appeals. In disposing of his contentions, the court, in part, said:
“However, where a corporation is insolvent in fact, or so nearly so that insolvency is practically certain, director creditors should not be permitted to appropriate the assets of the corporation to secure or pay a past indebtedness to the prejudice of other creditors. . . .
“The law applicable to this situation is not difficult. It is merely common sense and common honesty, applied.in the interest of fair dealing. In the vigorous opinion of Judge Philips in Northwestern Mut. Life Ins. Co. v. Cotton Exchange Real Estate Co. (C. C.) 70 F. 155, 161, he said: ‘A sound public policy, in my judgment, demands that when a business corporation has reached a point in its affairs when its directors know that it cannot pay its debts, and for the lack of sustenance, cannot longer do business, or cannot “act up to the design of its creation,” it is then, to all intents and purposes, insolvent. In such conjuncture its directors ought not to be permitted to take advantage of their position as managing officers to appropriate its remaining assets to the payment of their unsecured debts, to the exclusion of other unsecured creditors. Until overruled in this judgment, I shall continue to so administer the law.’ This court in Stuart v. Larson et al., 298 F. 223, 38 A. L. R. 79, reviewed the authorities and indorsed this language of Judge Philips. . . . Appellant as to his unsecured loans should take his place with the other general creditors and receive his fair pro rata. To permit an arrangement by the directors of a failing, if not an absolutely insolvent, corporation, whose stockholders months before had voted to liquidate the business of the corporation, to appropriate most of the assets of the company in payment of their own unsecured debts, thus according themselves preferential treatment at the expense of the other general creditors, would be in equity an abhorrent proposition.” (pp. Ill, 113.)
If it be assumed a corporation may prefer a stockholder creditor, there is another reason why appellants here should not prevail. At the time the note was assigned, the assets of the company consisted of the elevator, which was within a few days conveyed to the mortgagee in satisfaction of the debt, cash, accounts and notes receivable and inventories, total $2,554.93 as of May 31,1933, stock of a cooperative commission company carried at $1,626.77, and the note in question. The effect of the assignment was to transfer the note, or substantially all of the assets of the company, to the assignees. This was not authorized or approved by the vote of the holders of not less than four fifths in amount of the outstanding shares of capital stock, in the manner required by Laws 1931, ch. 154, sec. 1; R. S. 1933 Supp. 17-620a. (See First National Bank v. Paramount Transit Co., 139 Kan. 808, 33 P. 2d 300.)
And finally, another reason why appellants should not prevail is that under decisions noted the “trust-fund doctrine” is followed in this state. The note in question is a part of that trust fund, and the action is to follow and recover it. The undisputed evidence is that the assignees of the note took the same with notice of its character and gave nothing for it beyond the discharge of a preexisting debt. Under such circumstances the receiver as trustee was entitled to possession. (See Clingman v. Hill, 113 Kan. 632, 215 Pac. 1013; Levant State Bank v. Shults, 142 Kan. 318, 47 P. 2d 80.)
Appellants argue that if it.be held the note was given for stock, it violated the provisions of Laws 1929, ch. 140, sec. 17 (R. S. 1933 Supp. 17-1239) in that it contained no requisite statement as “Given for shares in -,” and is therefore uncollectible. It does not appear this defense was made in the trial court, but if it were, it would not avail, for by section 2 of the act (R. S. 1933 Supp. 17-1224) securities of a cooperative association are exempt. The record does not disclose fully the nature of the grain company, but its name contains the word “Cooperative,” which cannot be used by other than cooperative incorporations. (See R. S. 17-1515 and R. S. 1933 Supp. 17-1627.)
The judgment of the trial court is affirmed. | [
-10,
121,
24,
92,
-118,
96,
42,
-102,
113,
-96,
-89,
83,
-23,
86,
20,
109,
-57,
61,
81,
98,
-89,
-77,
55,
73,
-41,
-13,
-13,
-99,
-79,
79,
-92,
103,
77,
48,
10,
-107,
-26,
-110,
-63,
30,
78,
-123,
40,
-27,
-7,
0,
48,
15,
20,
75,
81,
-50,
-13,
40,
28,
71,
9,
46,
-17,
57,
-32,
-8,
-118,
-124,
127,
22,
19,
0,
-112,
103,
-40,
14,
-104,
17,
9,
-24,
90,
-90,
-122,
-11,
47,
25,
12,
38,
102,
16,
4,
-17,
-106,
-116,
46,
-49,
-115,
-26,
-48,
88,
-126,
1,
-66,
-99,
69,
21,
6,
118,
-18,
-107,
30,
45,
1,
-113,
-74,
-126,
23,
126,
-100,
11,
-49,
-89,
48,
113,
-50,
-96,
92,
71,
58,
-109,
-50,
-78
]
|
The opinion of the court was delivered by
Harvey, J.:
This action was brought by the state on the relation of the attorney general, at the direction of the governor, for the appointment of a receiver of the property and affairs of the defendant, the reinsurance of its outstanding policies of life insurance and annuity bonds, the winding up of its affairs, and the forfeiture of its charter. Shortly stated, the grounds for the action were that defendant was in a bad financial condition, which was growing worse, to the injury and danger of the holders of its policies and annuity bonds; that many of such holders had been demanding the cash-surrender value of their policies and bonds; that defendant had paid out a large amount for such cash-surrender values; that a large part of the securities on deposit with the state treasurer, on account of its capital stock and reserve, were greatly depreciated in value; that those in control of defendant had made many bad investments, and some of them had endeavored to make away with a large amount of its assets, to the danger and injury of the holders of policies and annuity bonds. The petition further alleged the commissioner of insurance had exhausted all his rights and powers under the laws of the state, so far as the same were available to him, and that it was impracticable for him to have held, or to hold, a hearing concerning the affairs of defendant, or to act upon the result of such a hearing, and that such commissioner is-without power under the laws of the state, or otherwise, to prevent and correct the abuses and wrongs complained of, for which reasons it is necessary for the plaintiff to bring this action. A demurrer to the petition was overruled. A hearing was had upon plaintiff’s application for the appointment of a receiver, at which a large volume of evidence was introduced, and at the close of which defendant’s demurrer to the evidence was overruled and the court made extended findings of. fact, and also made conclusions of law to the effect that: (1) The solvency of defendant is impaired; (2) defendant is doing business in violation of the laws of the state;' (3) the affairs of defendant are in an unsound condition so as to endanger the rights of policyholders; and (4) that a receiver should be appointed as prayed for in the petition. Defendant then filed an answer consisting of a general denial. The parties stipulated to submit the cause to the court upon the evidence taken upon the hearing for the appointment of a receiver. Whereupon, judgment was rendered for plaintiff, a receiver was appointed, who has taken charge of the affairs of defendant, filed an inventory, and otherwise proceeded under orders of the trial court. Defendant’s exceptions to the findings of fact made by the court were overruled, also its motion for a new trial, and it has appealed.
On the appeal three points are argued: First, that the court erred in overruling defendant’s motion to dismiss the petition, to dismiss the motion for the appointment of a receiver, and the demurrer to the petition; second, in overruling defendant’s demurrer to the evidence; and, third, that the court erred in appointing a receiver for the defendant under the court’s findings of fact and the evidence produced at the trial.
We have concluded no good purpose would be served by an exhaustive, detailed statement of the facts disclosed by the record in this case and that it is sufficient to summarize them as follows: In October, 1908, defendant was incorporated as a life insurance company under the laws of this state, with its principal office at Topeka. From that time until about 1930 or 1931 it was a growing, apparently prosperous company, and had insurance in force amounting to more than $40,000,000. The original president and active managing officer through those years, having died, was succeeded by others in 1930. By the early part of 1932. the insurance commissioner was receiving numerous complaints from policyholders of their inability to secure payments due them under their policies, whereupon he caused an examination of the company to be made as to the condition of its business as of March 31,1932. This examination showed the company to be insolvent by more than half a million dollars. This examination also disclosed the records of the defendant were in bad condition and it had been suffering from lack of proper management. The insurance commissioner discussed these defects of records and management with the officers of the company, who promised corrections and improvement, very few of which promises were carried out. Another examination made by the insurance commissioner of the affairs of the company at the close of business in 1932 showed it to be insolvent more than $300,000. There was a third examination made at the close of business in 1934, which showed defendant insolvent by more than $50,000. On its face this would indicate an improvement in the financial affairs of defendant, but the evidence disclosed that these findings of the extent of insolvency were computed upon a somewhat different basis in the later reports than in the first one and that in fact there was no real improvement in the financial status of the company. The affairs of the company were in such condition in 1932 thát the commissioner of insurance would not renew its certificate of authority to transact business in the state, and it transacted business for a time by the sufferance of the commissioner of insurance and upon the assurance to him of its officers that they would improve the defects in its records and in its management.
About July 1, 1933, a group of persons acquired, in the name of one of them, J. N. Mitchell, a majority of the capital stock of the defendant company and Mitchell became president of defendant. On that date Mitchell, as plaintiff, filed an action in the federal district court of this state against Charles F. Hobbs, as commissioner of insurance of the state, as a result of which plaintiff in that action procured a temporary order, mandatory in its nature, that the commissioner of insurance issue to defendant a certificate of authority to do business in the state. In July, 1933, defendant’s board of directors approved this action by Mitchell, and defendant has paid a large part, if not all, of Mitchell’s expenses in that action. Later the commissioner of insurance gave notice to defendant and its officers that on October 9 he would begin and conduct a hearing into the condition of the defendant company. On October 10 the federal court, in the. action brought by Mitchell,' and on his motion, made an order requiring the commissioner of insurance to issue a certificate of authority to the defendant company to do business in Kansas, effective “until the determination of this matter,” which order had not been revoked at the time of the trial of this action in the district court. On the same date the federal court issued an order' restraining the commissioner of insurance from holding a hearing concerning the affairs of the defendant company “until the determination of this matter.” This last order remained effective until in December, 1934, when it was set aside insofar as it restrained the commissioner of insurance from conducting hearings. This appears to have been brought about by the fact that on December 7, 1934, Mitchell and his associates entered into a contract with certain parties of St. Louis to sell the controlling interest in the defendant company to them for $100,000, for which a demand note was given, and perhaps some other considerations, as a result of which the St. Louis parties were made officers of the defendant company. On the evening of the same day action was taken which we deem it unnecessary to describe in detail and which would have had the effect of taking a large amount of the valuable assets of the defendant without an adequate return therefor; but these particular transactions were averted by the prompt action of the chairman of the board of directors, who had no notice of that meeting and was not present, and perhaps of one or two others. The result of the order made by the federal court in December was that the contract of Mitchell and his asso ciates to sell the shares of stock to the St. Louis parties was canceled and persons suggested by Mitchell were placed in the official positions of the company. The insurance commissioner began an examination of the affairs of the defendant company in December, 1934, which was completed in March, 1935, and on April 4 of that year he gave notice to the company that he would hold a hearing upon its affairs beginning April 16, 1935. Upon the motion of Mitchell, in the action brought by him against the commissioner of insurance, the federal court made an order requiring the commissioner to continue such hearing until May 10. An appeal was taken from that order to the United States circuit court of appeals, where a hearing was had in September, 1935, and an opinion filed November 15, 1935, reversing the order appealed from, with directions that the court dismiss the suit brought by Mitchell at his cost. On April 16, 1935, Mitchell presented to the federal court, in the action which he had brought against the insurance commissioner, a request for the court to approve an agreement for reinsurance of the policies and contracts of the defendant company with the United Benefit Life Insurance Company of Omaha, Neb., a draft of which agreement had beep signed by the officers of the company on April 2. The court required notice of this to be given to the insurance commissioner. It does not appear that it ever has been acted upon. The advisability of approving that contract is' not before us on this appeal.
The petition in this case was filed May 11, 1935, and service upon defendant was had the same day. On May 27 the insurance commissioner notified the defendant company that it would hold a hearing concerning its affairs on May 29. Upon that day the hearing was begun, but at the request of the defendant was continued until June 3. Before that date, and on May 31, J. N. Mitchell, as complainant, filed an action against the defendant company in the federal district court, being a stockholder’s suit, for the appointment of a receiver, and notice was given the insurance commissioner and the attorney general that the motion for the appointment of a receiver would be presented to the court on June 3. It does not appear that this hearing ever was had, for on June 1 the trial court' in this case began the hearing for the appointment of a receiver in this action, with the results previously stated.
While defendant, as appellant here, has argued three points on which it seeks to reverse the judgment of the trial court, the first two may be considered together, for they are grounded upon the same basic argument, namely, that plaintiff h'ad no authority to bring and maintain this action; that such an action could be brought by the attorney general only upon facts communicated to him by the commissioner of insurance after a hearing. Appellant points out that it is neither alleged in the petition nor shown in the evidence that such a hearing had been held by the commissioner of insurance, or that communication of facts developed by such hearing had been given by him to the attorney general. On this point appellant cites and relies upon our statute (R. S. 1933 Supp. 40-222) as construed by this court in State, ex rel., v. National Industrial Ins. Co., 125 Kan. 119, 122, 263 Pac. 1060, and Wright v. Federal Reserve Life Ins. Co., 131 Kan. 601, 606, 293 Pac. 945, certiorari denied, 283 U. S. 851, and cases to the same effect as these from other states having similar statutes. Obviously this statute contemplates that the commissioner of insurance, with respect to an insurance company in question, is at liberty to conduct the examination, suspend the insurance company from doing business, and communicate the facts relating thereto to the attorney general. The opinions cited also are predicated upon that view. We are unwilling to hold the statute to apply, and think the legislature never intended it should apply to a case in which the insurance company, by an action in federal court, tied the hands of the commissioner of insurance so that he could not conduct an investigation into the affairs of the company for fifteen months, and for more than two years could not make an order suspending the company from doing business without subjecting himself to contempt of the federal court, even though the action in federal court upon final hearing upon appeal was held to have been without merit from the beginning. The business of insurance is impressed with the public interest. It is important, that an insurance company be managed in such a way that it can carry out its obligations with its policyholders. Harassing suits by stockholders, or others, are detrimental to its successful operation. Our legislature has very wisely provided that complaints against the management of an insurance company should be taken up with the commissioner of insurance, and he is authorized to examine into the affairs and financial condition of the company, may make suggestions as to its management, and endeavor to correct any irregularities or abuses found, without notoriety which would injure the financial standing of the company, and if these measures do not bring satisfactory results, to conduct a formal hearing, suspend the company’s certificate of authority to do business in the state, if the facts require such action, and communicate those facts to the attorney general, whose duty it shall be to prosecute an action to dissolve the company and to enjoin it from doing business in the state. As respects the defendant company, the commissioner of insurance was proceeding in harmony with the statute. When complaints of policyholders reached him early in 1932 he made an examination into the affairs of the company, found it to be insolvent, its records in bad shape, and to be suffering from bad management. He took those matters up with the officers of the company, who promised improvement. Naturally the commissioner of insurance was loath to force into liquidation an insurance company apparently prosperous until recently. Had defendant and its officials at that time cooperated with the commissioner of insurance in his efforts to preserve this company in its financial standing there would have been no necessity for any of the litigation which has followed, only a part of which has been mentioned above. They did not do this, but apparently went on much as though an examination had not been made and the advice and admonitions had not been given. In 1933, when he was pressing for further, action tending to restore the solvency of the company, it financed an action in the federal court, in the name of the holder of the majority of its stock, for the sole purpose of tying the hands of the commissioner of insurance and making it impossible for him to perform his duties under the statute, and succeeded. in doing so even until after this action was brought and tried in the court below. In the meantime defendant and its officers took no adequate steps to restore the financial condition of the company, but on the other hand some of them, at least, increased their activities in a way to injure the financial status of the company. In that situation naturally one of two results must follow — that the company would fail financially, to the loss of its policyholders, or it was essential that the proper state officers take the necessary steps for its orderly liquidation. Ordinarily the state, on the relation of the attorney general, may bring an action to correct corporate abuses and, if necessary, to liquidate the corporation. That would be true with insurance companies were it not for the statute above cited. But since the defendant itself had made action under that statute impossible, it may be disregarded so far as authority to maintain this action is concerned. While it might be proper to attach some special significance to the fact the governor directed the attorney general to bring this, action (R. S. 75-702), we need not rely upon that. Under the facts disclosed by the record in this case the attorney general might have brought the action without such direction. (R. S. 60-1601 et seq.; R. S. 17-807; and, see State, ex rel., v. City of Newton, 138 Kan. 78, 81, 23 P. 2d 463, and cases there cited.) It necessarily follows that the first and second points argued by defendant on this appeal are not well taken.
Appellant argues the findings of fact and the evidence did not justify the conclusions of law and the judgment rendered by the trial court. The findings of fact made by the trial court cover ninety pages of the printed abstract. We have examined these and the evidence as abstracted. We need to add nothing more to the general statement hereinbefore made than to say that the amount of insurance in force had been reduced to but little more than one half of what it was in 1931. The securities on deposit with the state treasurer for the reserve and capital stock of the company were inadequate in amount and much more inadequate in value, and officers of the compa^r were repeatedly seeking to withdraw some of the best securities of the company and exchange them for those of less value. There was not only a lack of cooperation with the commissioner of insurance by the defendant and its officials, in such efforts as he was able to make with his hands tied by the action of the federal court, to get this company in a sound financial condition, but there was decided and repeated opposition on behalf of defendant and its officers to measures of that character. Both the findings of the trial court and the evidence before it were amply sufficient to sustain the judgment of the court.
We find no error in the record. The judgment of the court below is affirmed.
Hutchison, J., not sitting. | [
-80,
-20,
-44,
-68,
26,
96,
42,
-70,
85,
-85,
37,
-45,
-71,
-18,
20,
127,
-6,
41,
-32,
122,
-42,
-73,
87,
34,
-34,
-78,
-7,
-121,
48,
95,
-2,
-1,
76,
48,
10,
-43,
70,
106,
-61,
-48,
78,
9,
-87,
-19,
-39,
72,
48,
41,
54,
3,
85,
-97,
-29,
36,
25,
66,
73,
40,
-37,
-71,
-47,
-79,
-117,
-123,
127,
5,
49,
38,
-98,
99,
-40,
46,
-112,
49,
8,
-24,
123,
-74,
6,
116,
79,
-103,
40,
98,
103,
-111,
101,
-91,
-52,
-119,
54,
28,
15,
-94,
-46,
25,
-85,
0,
-73,
-99,
124,
28,
-121,
116,
-1,
20,
93,
36,
5,
-118,
-106,
-13,
-51,
116,
-104,
27,
-10,
-93,
52,
112,
-49,
-32,
92,
71,
115,
25,
60,
-118
]
|
The opinion of the court was delivered by
Burch, C. J.:
In the original opinion it was said new security for payment of the note was taken. Concerning this statement, the petition for rehearing has this to say: •
“There is nothing in the record and there is no fact to sustain the above statement. We are at a loss to know where the court obtained such an impression. If such were the fact, of course there would be little doubt about the correctness of the decision.”
The fact that new security was taken appears in the record in two ways: first, on the face of the note itself, and second, in the testimony of the plaintiff.
At the trial in the district court the attorney for plaintiff stated to the court that the judgment on the first note had been released. The release in writing on the margin of the record was not produced by either party, was not before the trial court, and was not abstracted. The counter abstract reproduced the release, which.appears in the original opinion. No motion was made to strike the release from the counter abstract, no reply brief was filed, and the cause was submitted without oral argument. The result was, this court had before it an undisputed record made by the plaintiff him self, showing the judgment on the first note had been paid and satisfied. However, in the original opinion it was stated in effect the first note was merged in the judgment, the judgment was extinguished, and prima facie there was nothing left for the mortgage in controversy to secure. That decided the case. Then in a subsequent and separate part of the opinion, the court enumerated some confirmatory indications. The last one mentioned was the release. The petition for rehearing complains because the court considered the release.
The court was authorized to consider the release by R. S. 60-3316, as interpreted in the case of Hess v. Conway, 93 Kan. 246, 251, 144 Pac. 205, and as applied in the case of Bankers Mortgage Co. v. Dole, 130 Kan. 647, 648, 287 Pac. 906. As indicated in the Bankers Mortgage case, this court might have directed that the release be certified up to assist the court in determining what should be done with the appeal. It would have been idle for this court to remand the cause for a new trial in the face of the release which plaintiff could not deny, and which he suffered to come to this court, unexplained and unqualified.
The petition for a rehearing is denied. | [
-78,
-24,
-31,
-3,
-118,
-32,
59,
-102,
73,
-124,
34,
115,
-3,
66,
4,
101,
-42,
41,
117,
97,
84,
50,
39,
-63,
-62,
-14,
-14,
85,
-79,
-1,
-28,
30,
76,
48,
-62,
-43,
102,
-54,
-41,
80,
-114,
-121,
-104,
-60,
-7,
8,
52,
59,
88,
77,
117,
-27,
99,
45,
25,
74,
105,
44,
-3,
57,
-16,
-40,
-65,
15,
109,
1,
-79,
38,
-40,
70,
90,
46,
-112,
57,
1,
-24,
115,
-90,
-122,
86,
65,
59,
41,
38,
102,
49,
-27,
-21,
-72,
-84,
39,
-44,
13,
-90,
-45,
72,
75,
39,
-74,
-103,
124,
66,
39,
-4,
-29,
21,
29,
-20,
15,
-49,
-10,
-79,
15,
124,
-102,
75,
-9,
-125,
0,
100,
-58,
-96,
93,
103,
91,
-101,
-66,
-68
]
|
The opinion of the court was delivered by
Burch, C. J.:
Mentzer, Bush & Company, a corporation which publishes school textbooks, commenced an action of mandamus in this court to compel the state school book commission to perform a contract with plaintiff relating to publication and distribution of certain school textbooks. The commission answered, and the cause was submitted on plaintiff’s motion for judgment on the pleadings. The court found a contract had been made which the commission subsequently undertook to repudiate. The commission had exercised all the discretion it possessed over the subject of adoption of the textbooks, and rested under clear legal duty to perform. The plaintiff had a special interest in performance by the commission, and was without plain and adequate remedy in the ordinary course of law; and this court was not authorized to exercise a discretion to refuse the relief prayed for. Therefore a writ of mandamus was issued on July 6, 1935, commanding the commission to perform. What follows will be a statement of the basis for the court’s action.
The commission has authority to provide for the printing and distribution by private publishers of such school textbooks as the commission may find it is impracticable for the commission itself to print and distribute. In November, 1934, the commission found that on July 1, 1935, previous adoption of certain textbooks would expire. On November 16, 1934, the commission directed its secretary to call for bids for new texts in those subjects. On November 21, 1934, the secretary addressed a letter to publishers, including plaintiff, calling for bids for certain high-school texts, and for samples of texts. On January 4, 1935, plaintiff submitted bids on certain texts. The bids were supplemented on January 7 by a provision necessary to comply with the law. Sample texts were submitted in time for the commission to consider them.
On April 29 and April 30, 1935, the commission, in session for the purpose, considered bids and texts, and the record of the meeting for April 30 shows the following:
“The commission voted by ballot on a textbook in business arithmetic, and Social-Business Arithmetic, Barnhart-Maxwell, and Social-Business Arithmetic, Half Year, Barnhart-Maxwell, published by Mentzer, Bush & Company, received a majority of the votes cast, and was adopted by the commission for use in the high schools of Kansas for a period of five years.”
After adoption of texts was completed, the commission sent to all publishers whose texts were adopted, including plaintiff, and to all dealers in schoolbooks throughout the state, a printed list entitled:
“Books Adopted eor Use in Kansas Schools Beginning September, 1935.”
The list was classified with respect to subjects, contained the names of thirty-nine texts which the commission had adopted, including those of plaintiff, and gave the names of authors and publishers.
On May 9,1935, the secretary of the commission mailed to plaintiff a letter inclosing for execution in duplicate a form of contract. The letter reads:
“At their meeting last week the school book commission of Kansas adopted your Social-Business Arithmetic for use in high schools of Kansas. I am inclosing herewith contract made out in duplicate which we will be pleased to have you sign and return to us. One copy of the contract will be signed here and returned to you for your files.”
Immediately after the contract was received plaintiff signed the duplicates and returned them to the commission.
Plaintiff proceeded to notify, at its own expense, some 654 high schools, and many teachers, of adoption of plaintiff’s books. Many teachers asked for sample copies of the books, to enable them to prepare for the September terms of school. Plaintiff furnished the sample copies, and plaintiff purchased paper for the editions of its books, all at large expense.
The meeting of the commission on April 30 adjourned to meet on May 27. On that date it was moved, seconded, and carried:
“That all steps pertaining to the further effectuation, carrying out and consummation of contracts entered into by the school book commission for the adoption of books for the year 1935, and the succeeding five-year period be suspended pending further information and investigation from the educational departments of Kansas University, Kansas State Teachers’ College of Emporia, and Kansas State College.”
The commission then adjourned, to meet at the call of the chairman.
On June 8 the commission met, rescinded the resolution of May 27, and adopted the following:
“That the commission reconsider its action in the adoption of all textbooks made at the meeting of April 29 and 30, 1935, and that the commission substitute for those adoptions an extension of one year of the contracts made in 1930 on the following textbooks, said contracts so extended to be on the same editions as adopted in 1930.” [Here follows a list of nineteen textbooks, including two arithmetics.]
•The result was, the commission did not sign the duplicate writing which was to be returned to the plaintiff, and extension contracts to furnish books already in use were subsequently signed by the publishers of such books and by the commission.
The prayer of the petition for the writ of mandamus was that the commission be required not only to sign the writing tendered to and signed by plaintiff as evidence of the contract between plaintiff and the commission, but that the commission be required to cause plaintiff’s textbooks to be used in the schools of the state for the period of five years.
The statement of facts in the brief of the textbook commission recites in minified manner what the commission’s record showed— adoption of plaintiff’s books for use in the high schools of Kansas for a period of five years — and continues as follows:
“The secretary forwarded to the plaintiff and other publishers a formal agreement for execution with a request that the agreement be executed by the plaintiff and other companies and returned to the defendant commission for further consideration.”
There is no warrant for the concluding portion of this statement, “for further consideration.”
The answer of the commission' alleges that after taking the action disclosed by the record of the meeting of April 30 the commission recessed, and the secretary, acting without specific authority, but according to custom, forwarded to the several printing companies, including the plaintiff, the form of contract already referred to, plaintiff’s copies being inclosed with the letter dated May 9. The letter appears above, and speaks for itself. It discloses no request for signature and return of the instrument for further consideration, and the letter plainly indicates the customary routine character 'of the signing of contracts, after formal adoption of books.
The answer alleges that after the action taken on April 29-30 the commission recessed. Subsequently several members reflected on what had been done, and became disturbed about consequences. As a result, the action was taken which is shown by the minutes of the meeting of May 27. This plainly indicates further consideration of adoption of plaintiff’s books was an afterthought. No phase of adoption had in fact been held in abeyance for further consideration, and as indicated, the commission had broadcast fact of adoption of plaintiff’s books.
The conduct of the parties indicates they contemplated a written memorial of adoption of plaintiff’s books would be made, covering such details, largely statutory, as properly inhered in the nature of the transaction. These details were promptly made certain. The commission submitted to plaintiff for execution a form of contract which plaintiff promptly signed and returned.
No agreement of parties that there should be no contract until a writing was signed, was pleaded. The negotiations were all in writing, and no understanding of parties that plaintiff’s books were not finally adopted unless and until the commission signed a writing, is derivable from the negotiations. The letter of May 9 was not that on return of instruments signed by plaintiff the commission would conclude the adoption of plaintiff’s books by also signing. One copy would be signed and returned to plaintiff for its files — that is as a memorial. The commission said nothing about signing the copy retained for its files. There is no fact or circumstance tending to show the commission considered the subject of adoption of plaintiff’s books remained pending as unfinished business, leaving legal obligations to hang in the air. In the absence of express agreement there shall be no contract until a writing has been prepared and signed, the question is not what the commission had in mind, but what its objective manifestations were, and in this instance there is no room for a finding other than that the bargain was complete, although the commission did not sign. (Restatement, Contracts, § 26.) Plaintiff was justified in acting accordingly, and commenced to perform, at much expense. The answer pleads no notice to plaintiff of the action to be taken by the commission on May 27 and June 8, and what the commission attempted on June 8 was rescission of contract without plaintiff’s knowledge or consent.
The commission is authorized by statute to make its own rules and regulations and to determine its own method of procedure, according to the law governing its creation. The answer is barren of any rule adopted by the commission relating to anything. The answer, however, alleges it was “a custom” and “implied rule” of the commission that adoption of a textbook was not made until a contract of adoption had been signed by the commission. The statute doés not speak of customs, or rules by implication, and contemplates formal adoption of guides for conduct and action which may be known by third persons whenever their interests may be affected. Even new members ought to be able to know, on taking office, what the rules of procedure of the commission are.
By virtue of the statute the commission may attach reasonable conditions to the formation of contracts of adoption of textbooks; but the regulations, having the effect of laws governing the creation of legal relations, may not be secret laws. They must be accessible to publishers having dealings with the commission, so the publishers may. not be trapped into sustaining large losses.
On April 30 the commission adjourned to meet May 27. It met on that day, and adjourned to meet on call of the chairman. It met again on June 8, when the motion to reconsider the action taken on May 29 and 30 was made. A bidder whose text had been adopted ought to know promptly whether an adoption is final, especially a formally promulgated adoption, and in the absence of special rule which plaintiff might learn about, plaintiff was entitled to depend on the generally accepted parliamentary practice which forms a part of our common knowledge, that a motion to reconsider can be made only on the day the vote to be reconsidered was taken, or on the next succeeding day, a legal holiday or a recess not being counted as a day. (Robert’s Rules of Order, § 36.)
While the answer pleads the adjournment on April 30 was a recess, the record, which controls, does not show a recess. The motion to adjourn merely fixed the time when the commission would meet again. The answer says the meeting on May 27 was the next regular meeting. If it were a mere continuation of the session of April 30, May 27 was the last day on which a motion to reconsider action taken on April 30 could be made, and the making and adoption of the motion to reconsider on June 8 was wholly irregular, and was nugatory so far as it might affect plaintiff’s rights.
The soundness of the general parliamentary ruléis illustrated in this case. In November, 1934, the commission took up the subject of adoption of textbooks. Propositions came in from publishers. The answer shows that on January 18 and 19 textbooks were adopted. On the 8th, 9th and 29th of March textbooks were adopted. On April 29 and 30 textbooks were adopted. Plaintiff and textbook dealers were notified. Schools were notified. Teachers secured texts. Plaintiff took steps to have books ready for the opening of schools in September. In such a situation, because of nature of field of operation, the opportunity for abuse, and the confusion and uncertainty which would result, a formally adopted rule providing for other than prompt motion to reconsider would be unreasonable.
The commission’s discretion over the subject of adoption of textbooks was exhausted when it contracted with plaintiff. While the duty to see that schools have textbooks is a public duty, plaintiff had a special private interest in performance of the contract. Nobody could tell how many books could be sold, and plaintiff had no plain and adequate remedy in the ordinary course of law.
The court has a certain discretion in the matter of causing writs of mandamus to be issued. In an appeal to the court’s discretion the answer contains a castigation by the commission itself of its own conduct which is so sweeping and severe the court does not care to publish it in the Kansas Reports. There is no complaint of price of the plaintiff’s books, but the expense to the public consequent on adoption of plaintiff’s books, which was all that was involved in this proceeding, will be somewhat larger than if texts ten years old were used. The answer pleads that the new books are much more desirable, both as to form of text and subject matter. This being true, the public interest in keeping down expense is outweighed by the paramount public interest in seeing that organs of the state government keep within the law.
Harvey and Smith, JJ., dissenting. | [
-76,
-22,
-15,
47,
10,
66,
56,
-98,
104,
-125,
38,
83,
-115,
-45,
-123,
93,
-109,
37,
-108,
106,
-10,
-78,
39,
-30,
-42,
-13,
-7,
-35,
-69,
95,
-74,
86,
76,
48,
-62,
-43,
-122,
-62,
-55,
28,
-126,
2,
-87,
-61,
-39,
-56,
56,
123,
48,
11,
17,
-113,
-13,
44,
26,
-53,
105,
46,
-7,
-24,
89,
-79,
26,
7,
127,
6,
-111,
33,
-104,
7,
-48,
108,
-100,
48,
-87,
-23,
98,
-90,
70,
84,
9,
41,
-120,
50,
102,
99,
-76,
-27,
-104,
-120,
6,
-109,
13,
-90,
-108,
88,
34,
73,
-73,
-100,
112,
18,
-125,
118,
-26,
69,
31,
109,
11,
15,
-30,
-125,
-49,
100,
-38,
15,
-21,
-93,
0,
84,
-50,
-16,
95,
71,
58,
-109,
-50,
-100
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.