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The opinion of the court was delivered by
Davis, J.:
This is an appeal from the denial of a motion to file an appeal out of time following a hearing under the provisions of State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The trial court determined that the defendant, Shawn Willingham, waived his right to appeal. We reverse and remand with instructions that the defendant be allowed to file his notice of appeal out of time based on our conclusion that the record fails to support a waiver.
The defendant was charged with first-degree murder, attempted aggravated robbery, aggravated assault, and unlawful possession of a firearm in connection with the death of James Reynolds, and the assault and attempted robbery of Tyrone Lewis. Counsel was appointed to represent the defendant. The defendant pled no contest to the charge of unlawful possession of a firearm and was convicted following a jury trial of unintentional second-degree murder. The defendant was sentenced on August 26, 1994. On May 20, 1996, the defendant filed a motion to file his appeal out of time on the basis that he had not been advised of his right to appeal and that trial counsel had failed to file an appeal on his behalf. The trial court conducted a hearing on the motion pursuant to Ortiz.
In the Ortiz hearing, the defendant was represented by newly appointed counsel. The defendant did not appear personally. His trial defense counsel was called as a witness.' The evidence of a waiver presented at this hearing consisted primarily of the trial defense counsel’s testimony involving his personal recollection that the defendant stated to him that he did not wish to appeal. This conversation took place at the conclusion of the defendant’s motion for a new trial, which occurred 2½ months before sentence was imposed. The record does not support a conclusion that defense counsel advised the defendant of the time limits involved in an appeal. At this same hearing, the trial judge recalled that he had overheard a conference between trial defense counsel and the defendant following the motion for a trial, and that it also was his impression the defendant did not want to appeal.
In Ortiz we noted:
“ "This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.’ ” 230 Kan. at 735 (quoting State v. Moses, 227 Kan. 400, 404, 607 P.2d 447 [1980]).
However, in Ortiz, we also recognized a limited exception to this general rule in those cases where a defendant either was not informed of his or her right to appeal, was not furnished an attorney to exercise those rights, or was furnished an attorney for that purpose who failed to perfect and complete an appeal. 230 Kan. at 736. We stated:
“Whether the defendant made a knowing and intelligent decision to forego an appeal is subjective in nature. The courts only can be expected and required to show on the record that a defendant was advised of the right to appeal and that an attorney was or would have been appointed to assist the defendant in such an appeal.” 230 Kan. at 736.
In this case, the record is clear that at the time of sentencing, the defendant was not advised either by the court or by trial defense counsel of his right to appeal. Both Kansas law and administrative regulations address the duties of the trial court and appointed counsel upon sentencing a criminal defendant. K.S.A. 22-3424(f) provides:
“After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant’s right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis.”
Additionally, K.A.R. 105-3-9(a)(3), concerning the duties of appointed trial counsel following sentencing, provides:
“(a) In order to protect a convicted defendant’s right to appeal, it shall be the duty of each trial counsel to:
“(3) file a notice of appeal in a timely manner, unless a waiver of the right to appeal has been signed by the defendant.”
In the case we now consider, the record demonstrates that no appeal was filed by counsel, nor was a written waiver obtained by counsel. Moreover, the record establishes that the court did not advise the defendant at the time of sentence concerning his right to appeal. However, the failure to comply with the provisions of the statute and the administrative regulation quoted above need not be fatal. In State v. Mitchell, 231 Kan. 144, 146-47, 642 P.2d 981 (1982), overruled on other grounds, State v. Nioce, 239 Kan. 127, 716 P.2d 585 (1986), we faced a similar situation in which a defendant claimed he had not been informed either by the court or by counsel of his right to appeal. We stated:
‘While it is clear the defendant was not informed of his right to appeal by the judge, it is apparent from his actions that he knew something of his appeal right. The question for decision is whether, under the facts of this case, he knew enough. We find that he did not.” 231 Kan. at 146.
We noted in Mitchell:
“The purpose of K.S.A. 22-3424(5) logically is the same as that of the federal rule [then Fed. R. Crim. Proc. 32(a)(2)]: ‘[T]o insure that all defendants who might wish to appeal axe fully aware of their appeal rights.’ (Emphasis added.) United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970). A full awareness of one’s rights surely must include the knowledge that there is a time frame within which those rights must be exercised. From the record in this case, it is apparent the defendant did not have that knowledge. This court will consider the appeal out of time and reach the substantive issue raised. In doing so, we express no opinion whether the appeal would have been heard had the record revealed the attorney had made a full disclosure to the defendant of his appeal rights.” 231 Kan. at 147.
It may be trae that at his hearing on the motion for a new trial in May 1994, the defendant voiced to his counsel that he did not wish to appeal. Such a decision would certainly be understandable given the result of the trial, viz, the defendant was convicted of the lesser included offense of unintentional second-degree murder rather than first-degree murder with which he was charged. However, sentencing did not occur until August 1994, approximately 2½ months later. By statute, the defendant was entitled to be advised of his right to appeal by the district judge at the time of sentencing. K.S.A. 22-3424(f). No such advice was given by the court, and the limited advice given by counsel at the hearing on motion for new trial was not sufficient to establish a voluntary relinquishment of a known right or a waiver of the right to appeal.
Had counsel followed the provisions of K.A.R. 105-3-9, the posture of this case would be more in the nature of Ortiz, where the court denied the appeal based upon the defendant’s written waiver of his right to appeal. 230 Kan. at 736. Had counsel testified that he fully advised his client of his right to appeal, including the time limits imposed by statute, or had there been a full discussion of the right with the defendant at time of sentencing, a finding of waiver by the trial court might have been appropriate. State v. Mitchell, 231 Kan. at 146-47. However, in this case, we must conclude, based on the record before us, that the defendant did not waive his right to appeal and that this case , fits within the narrow exceptional circumstances set forth in Ortiz. Thus, we reverse the decision of the district court and remand with instructions to allow the defendant to file his appeal out of time.
Reversed and remanded. | [
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The opinion of the court was delivered by
Davis, J.:
The State appeals the district court’s order denying its motion to correct an illegal sentence. This court’s jurisdiction is invoked pursuant to K.S.A. 22-3602(b)(3) for an appeal by the prosecution upon a question reserved. The narrow question reserved is whether the trial court’s grant of credit to the defendant for prison time served in Kentucky against his earlier Kansas sentence was a modification of his sentence without jurisdiction and, therefore, an illegal sentence.
The facts in this case are undisputed. The defendant, Larry E. Cockerham, was convicted in Kansas of aggravated assault and aggravated kidnapping on March 2, 1988. He was sentenced to a controlling term of 10 to 20 years. The defendant appealed his conviction and sentence and was released on a $20,000 appeal bond.
While on bond, the defendant committed a felony offense of sodomy in the state of Kentucky. He was charged and convicted on his plea of guilty and sentenced to 10 years’ incarceration in Kentucky. The sentencing judge in Kentucky ordered the defendant’s Kentucky sentence to run concurrent with his previous Kansas sentence. On April 13, 1990, this court affirmed the defendant’s Kansas convictions. State v. Cockerham, No. 62,382, unpublished opinion filed April 13, 1990.
While serving his Kentucky sentence, on July 12, 1990, the defendant filed a motion before the Kansas district court, asking that Kansas relinquish jurisdiction to the State of Kentucky. The district court denied the motion. On July 16, 1990, the Kansas court ordered that a bench warrant be issued for the defendant to bring him before the court “for hearing for imposition of previously imposed sentence.” Bond was set at $75,000. The warrant was issued but remained unserved during the defendant’s incarceration in Kentucky.
The defendant then filed a pleading in Kansas captioned a 'Writ of Mandamus,” asking that he be given credit on his Kansas sentence for the time served in Kentucky. The district court treated the defendant’s writ as a motion to modify his sentence and denied his motion on the basis of lack of jurisdiction, ruling that Kansas law, specifically K.S.A. 21-4603, permits modification only within 120 days after the receipt of the court’s mandate in a case which is appealed.
After completing his Kentucky sentence, on March 30,1995, the defendant appeared in Kansas with counsel before the district court and was ordered to serve the sentence previously imposed in Kansas. This district court order contained the following language: “The defendant is allowed credit for time served since the 8th day of August, 1991, which is 1,329 days.”
The State did not object or attempt to appeal from the March 30, 1995 order.
On August 2,1996, on motion of the defendant, the same district court entered a nunc pro tunc order correcting its March 30,1995, order which incorrectly gave the defendant only 1,329 days of credit instead of “full credit for time served since April 18, 1989, which amounts to 2,169 days.” Again, the State did not object.
On June 4, 1997, the State filed a motion to correct the illegal sentence with the district court. The State argued that the granting of credit on the defendant’s Kansas sentence for the time spent incarcerated in the state of Kentucky was a modification of the defendant’s sentence. Under K.S.A. 21-4603(d)(1) and (2), a district court has jurisdiction to modify a defendant’s sentence within 120 days after a sentence is imposed or within 120 days after the receipt of the court’s mandate in a case which is appealed. The State argued that the time for modification of sentence had expired and the modified sentence was imposed without jurisdiction and, therefore, illegal.
On November 7, 1997, after a hearing, the district court denied the State’s motion, finding
“that the Court’s prior ruling granting jail credit to the defendant on his Kansas conviction while defendant was incarcerated in the State of Kentucky on a subsequent conviction is not an illegal sentence. [And] that the granting of said jail credit is not a modification of defendant’s sentence.”
In this same order, the district court noted “that the State has reserved the issue for appeal purposes.”
Discussion and Analysis
Before consideration of whether this court should exercise jurisdiction pursuant to K.S.A. 22-3602(b)(3) on the narrow question reserved by the State, we note that the State has attempted to expand the question to include the propriety of the district court’s granting credit to the defendant. The State argues that the defendant is entitled only to be credited for time served in Kansas against his Kansas sentence, citing K.S.A. 21-4614; that the defendant’s time in Kentucky on a new and distinct charge cannot be credited toward his earlier Kansas sentence; and to do so has an adverse impact on the penal interests of Kansas. These issues were not reserved by the State, and we have no jurisdiction to consider them. See State v. Mountjoy, 257 Kan. 163, 166, 891 P.2d 376 (1995) (holding that to appeal on a question reserved it is necessary for the State to make proper objections to exceptions at the time action objected to is taken). No statutory authority exists for the State to later expand on the question reserved. State v. Taylor, 262 Kan. 471, Syl. ¶ 3, 939 P.2d 904 (1997).
The question specifically reserved by the State is whether the granting of credit against a prior Kansas sentence for time served in the state of Kentucky on a later Kentucky sentence, is a modification of the Kansas sentence. This court has generally accepted such appeals where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. State v. Taylor, 262 Kan. at 474-75; City of Overland Park v. Cunningham, 253 Kan. 765, 766, 861 P.2d 1316 (1993).
While the question reserved arises within a factual context that is unusual and unlikely to recur, the question of whether the grant of credit for time served constitutes a modification of sentence is one that may be confronted often in the trial courts of this state and a matter important to the administration of the criminal law in this state. Thus, we conclude that it is a proper question for an appeal by the State on a question reserved.
The argument advanced by the State assumes throughout that in granting “the defendant credit against his Kansas sentence for time served in Kentucky, the court illegally modified the defendant’s sentence.” The only direct authority submitted on this point by the State is the case of State v. Van Winkle, 256 Kan. 890, 895, 889 P.2d 749 (1995), wherein we noted that “[a] sentence is the judgment of the court which formally declares to the accused the legal consequences of his or her conviction or of the guilt to which he or she has confessed.” The State argues that “when the court went back and changed the credit that defendant was to receive then clearly the court modified the legal consequences of defendant’s actions” and, therefore, modified the defendant’s sentence without jurisdiction. The argument begs the question in that it assumes that granting credit is a modification of the defendant’s sentence.
The defendant argues that the court did not modify his sentence. He contends that his indeterminant sentence of 10 to 20 years was never changed and that the trial court did not change the duration of the minimum and maximum term originally imposed. The defendant argues that rather than actually modifying his sentence, the district court, when awarding credit for time served, simply clarified how the sentence is to be served.
Both parties point to the only statutory authority addressing the granting of good time credit for time served in Kansas against a Kansas sentence. The following provisions of K.S.A. 21-4614 require a district court under circumstances set forth to make allowance for time incarcerated:
“In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.”
While this statute does not apply to facts in this case, we note that the language used supports a conclusion that an “allowance for time” spent incarcerated is not a modification of a sentence. The above language provides that the “sentence [imposed by the court] is to be computed from a date . . . established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” The original sentence imposed by the court remains the same.
The State argues that K.S.A. 21-4614 effectively limits the court in this case to giving credit in Kansas for only time that the defendant “spent incarcerated pending the disposition of the defendant’s case.” This contention raises other issues concerning the authority of a Kansas district court to grant credit on the basis of comity and its recognition of the Kentucky sentence. These questions were not reserved, and we have no jurisdiction to consider them.
On the question reserved, we hold that the district court’s grant of credit to a defendant on his earlier Kansas sentence for time served in the state of Kentucky on a subsequent Kentucky conviction is not a modification of a defendant’s Kansas sentence.
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In a letter received by the Clerk of the Appellate Courts on January 4, 1999, respondent Edwin P. Carpenter, of Topeka, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1998 Kan. Ct. R. Annot. 242).
On December 17, 1998, respondent entered a plea of guilty to the charge of accessory after the fact to bankruptcy fraud, in violation of 18 U.S.C. §§ 3 and 152(7) (1994).
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 Edwin P. Carpenter be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Edwin P. Carpenter from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1998 Kan. Ct. R. Annot. 246). | [
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The opinion of the court was delivered by
Larson, J.:
John G. Patiy appeals the trial court’s decision at a resentencing hearing to use additional convictions which occurred after his original sentence to calculate his criminal history score. The additional convictions raised Patry’s criminal history from a “D” to a “C,” resulting in an increased sentence.
Patry argues the trial court (1) was limited at the resentencing hearing to the same facts, conditions, and circumstances which existed at the time he was first sentenced, (2) the sentence imposed at resentencing violated his Fourteenth Amendment due process rights, and (3) the imposed sentence violated the Double Jeopardy Clauses of the Kansas and United States Constitutions.
On December 5, 1995, Patry was convicted of possession with intent to sell cocaine, possession with intent to sell methamphetamine, two counts of no tax stamp, possession of drug paraphernalia, and attempting to elude a law enforcement officer in case No. 95 CR 1325. The charges arose out of acts committed on May 25,1995. The court calculated Patry’s criminal history as a “D” but upwardly departed as allowed in the Kansas Sentencing Guidelines Act (KSGA). Patiy’s appeal of his convictions and departure sentence resulted in a Court of Appeals unpublished opinion issued August 1,1997, affirming the convictions but holding the trial court did not have substantial or compelling reasons for departure and remanding for resentencing.
While his appeal was pending in this case, on June 5, 1997, Patiy pled guilty to separate charges of conspiracy to possess cocaine with intent to sell, conspiracy to possess methamphetamine with intent to sell, and theft in case No. 96 CR 1597. These charges arose out of acts committed by Patry on November 3, 1995. When the trial court sentenced Patry in case No. 96 CR 1597 on July 15, 1997, it included his convictions in case No. 95 CR 1325 in determining his criminal history score was “C.”
When Patry was resentenced in this case on October 24, 1997, his criminal history score was “C” because of the June 5, 1995, convictions in case No. 96 CR 1597. Patry objected to utilizing the June 5 convictions in calculating his criminal history at the resentencing, contending the “D” classification of the original sentencing hearing must be used again. The trial court overruled his objection and sentenced him accordingly. Patry appeals.
Resolution of criminal history issues requires the interpretation of sentencing guidelines provisions, which are questions of law over which our scope of review is unlimited. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
The general rule is that criminal statutes must be strictly construed, but this rule is subordinate to the determination that judicial interpretation must be reasonable to effect legislative design and intent. It is a fundamental rule of statutory construction that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give it the effect intended by the legislature, rather than determine what the law should or should not be. State v. Taylor, 262 Kan. 471, 478, 939 P.2d 904 (1997).
Patry first argues that if a sentence is voided, the resentencing court is limited to the same facts, conditions, and circumstances existing at the time the original sentence was imposed, utilizing authority of cases decided prior to the enactment of the KSGA. See Bridges v. State, 197 Kan. 704, 706, 421 P.2d 45 (1966); State v. Cox, 194 Kan. 120, 122, 397 P.2d 406 (1964); Richardson v. Hand, 182 Kan. 326, 329, 320 P.2d 837 (1958). Patry acknowledges the application of the KSGA, but asserts the cases he cites have not been overruled, do not conflict with the KSGA, and must be applied to these facts. Patry would have us hold that a distinction exists between a sentencing and a resentencing, with the former controlled by the KSGA and the latter governed by prior case law. Such a contention is untenable.
The State argues that provisions of the KSGA set forth in K.S.A. 21-4701 through K.S.A. 21-4728 govern because Patry’s acts occurred after enactment of the KSGA. The State points to K.S.A. 21-4703(c), which defines criminal history as including, “adult felony, class A misdemeanor, class B person misdemeanor, or select misdemeanor convictions and comparable juvenile adjudications possessed by an offender at the time such offender is sentenced.” (Emphasis added.)
The State further points to K.S.A. 21-4710(a), which provides the criminal history must be based on prior convictions, defined as
“any conviction, other than another count in the current case which was brought in the same information' or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.)
The State asserts the trial court correctly considered Patry s June 5, 1997, conviction in the separate case in determining his criminal history on October 24, 1997, when he was resentenced in this case. The State argues there is no material distinction between a sentencing and a resentencing which results in the sentence being properly imposed.
The KSGA became effective July 1,1993. It governs the offenses for which Patry was convicted that occurred during 1995. It is well established that criminal statutes in effect at the time of the offense control the charge as well as the sentence resulting therefrom. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). Because the KSGA controls, Patry’s reliance on cases decided prior to its enactment is misplaced.
In Taylor, 262 Kan. at 479, we interpreted the intent of the legislature in enacting K.S.A. 21-4710(a) to include all prior convictions in a defendant’s criminal history score, unless prohibited by statute “regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the-conviction in the current case.” In applying this clear holding to the facts of this case, when Patry was resentenced in this case on October 24, 1997, the June 5, 1997, conviction was in existence and, following Taylor and K.S.A. 21-4710(a), these convictions must be utilized in determining his criminal history. The trial court correctly utilized Patry’s conviction to calculate his criminal history score and properly sentenced him in this case.
Patry also argues that his due process rights were violated because the increased sentence amounts to a “presumption of vindictiveness.”
Patry relies on North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), limited by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989), and State v. Macomber, 244 Kan. 396, 769 P.2d 621, cert. denied 493 U.S. 842 (1989). In Pearce, the United States Supreme Court addressed the constitutional limitations upon a judge when imposing a more severe penalty after conviction of the same crime upon retrial. The Court held that a “presumption of vindictiveness” exists when, upon retrial, a trial judge imposes a heavier sentence on a defendant after the successful appeal of the original conviction. The presumption may be overcome upon a showing of “objective information .concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726. The Court further refined its Pearce holding in Wasman v. United States, 468 U.S. 559, 572, 82 L. Ed. 2d 424, 104 S. Ct. 3217 (1984), where it held:
“[A]fter retrial and conviction following a defendant’s successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.”
“Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.” 468 U.S. at 571.
In Macomber, we followed Pearce and Wasman in holding there is a “presumption of vindictiveness” if a sentencing judge imposes a greater sentence after a new trial unless the court articulates proper information concerning the defendant’s conduct that occurred subsequent to the original sentencing.
However, Patry’s reliance on Pearce, Wasman, and Macomber is misplaced as they are readily distinguishable from the facts in this case. First, each involves a successful appeal to a conviction resulting in a retrial, while our case concerns a successful appeal of a sentence resulting in a resentencing. Secondly, and most importantly, the State in Pearce and Macomber introduced no new evidence to justify an increase in the defendant’s sentence. This resulted in a violation of the defendant’s due process rights. In our case, in distinct contrast, the trial court used information obtained from the presentence investigation (PSI) report which included Patry’s June 5, 1997, convictions in calculating his criminal history score. This is appropriate information concerning Patry’s conduct that occurred after tire time of the original sentencing. The report and Patry’s own actions may be used in determining his sentence without violating his due process rights.
We considered the same issue in State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996), where the defendant’s convictions were affirmed, but the sentences were vacated and a more severe sentence was then imposed. Rinck’s due process rights were held to have been violated “[b]ecause the court did not articulate a reason on the record for the new enhanced sentence and relied primarily upon information that was obviously considered in the imposition of the original sentence.” 260 Kan. at 645. However, our Rinck opinion furthered stated: “[T]he record contains no objective information concerning identifiable conduct of the defendant for the enhanced sentence. Under these circumstances, the defendant’s right to due process is violated, not because the sentence is enhanced, but because no evidence was introduced to rebut the presumption that actual vindictiveness was behind the increased sentence." (Emphasis added.) 260 Kan. at 645.
In our case, the trial court properly used additional information showing further violations which existed at the time of the resentencing hearing. Patry’s due process rights were not violated because his conduct was the generating cause for the additional information which required an increase in his criminal history. This does not result in due process violation.
Finally, the sentencing does not violate the double jeopardy provisions of the Kansas and United States Constitution. In State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 (1984), we said:
“The double jeopardy clause of the Constitution of the United States 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).”
With the language of section 10 of the Bill of Rights of the Kansas Constitution being similar to that of the Fifth Amendment of the United States Constitution, the underlying protections set forth above must be considered.
Patty’s argument that State v. Mertz, 258 Kan. 745, 907 P.2d 847 (1995), is authority for his contention that prior convictions used to enhance his sentences are a form of double punishment is without merit. The issue in Mertz was whether prosecution for a DUI charge after defendant’s driver’s license was revoked for the same crime constituted multiple punishments. We specifically held it did not. In the instant case, Patry’s convictions were used to determine his criminal history score. The criminal history score, in turn, was used to cause the required sentence to be entered. Pearce holds that the Double Jeopardy Clause does not impose an absolute bar to a greater sentence upon reconviction. Wasman states the sentences may be enhanced unless motivated by actual vindictiveness toward the defendant. No such action is shown here. This is a simple matter of the trial court using the facts existing at time of the sentencing to determine the criminal history score. This cannot result in a violation of the Double Jeopardy Clause.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by defendant Vickie Lumley from her conviction of intentional second-degree murder of Robert Guerrero in violation of K.S.A. 1996 Supp. 21-3402(a).
Lumley raises a number of issues on appeal that fall into three categories: (1) The trial court erred in not sustaining an objection and admonishing the jury to disregard a witness’ comment that Lumley had been bailed out of jail; (2) the trial court erred in limiting the evidence of her tumultuous relationship with Guerrero and his acts of violence towards her; and (3) the trial court improperly allowed the prosecutor to ask questions which assumed facts not in evidence and to make improper comments during closing argument.
Lumley was charged with intentional second-degree murder in connection with the December 12, 1996, death of Guerrero. A jury found Lumley guilty as charged. Intentional second-degree murder is an off-grid crime, with a sentence mandated by statute, and Lumley was sentenced to life imprisonment pursuant to K.S.A. 1996 Supp. 21-4706(c).
Lumley and Guerrero lived together in a common-law marriage. A few years before his death, Lumley and Guerrero began living in a mobile home in rural Stevens County, Kansas. The mobile home did not have a telephone. Lumley characterized her relationship with Guerrero as “up and down” and said that when Guerrero was drinking heavily, the relationship was bad, otherwise it was good. Lumley testified that after Guerrero’s father died in December 1993, he developed problems with his temper, and his violence towards her prompted her to move out of the mobile home several times. In May 1996, Lumley moved out of the mobile home, but she returned in June. She subsequently moved out again but returned in September 1996, upon reconciliation.
Lumley testified that in early November 1996, she and Guerrero had a violent argument and he was angiy and throwing things. She further stated that he yelled at her two sons, who lived with them, and threw her against the bedroom wall and then against the living room wall. Guerrero took her to the emergency room in Hugoton with bruises on her chest and arms and pulled muscles in her upper body. Lumley testified that later in November 1996, another episode of violence occurred when Guerrero punched holes in the bedroom wall and “he kind of pitched me around.”
Tyler Lumley, Lumley’s 13-year-old son, testified that at times he was afraid of Guerrero and had seen him act violently. Justin Lumley, Lumley’s 12-year-old son, testified that Guerrero had thrown a table, chairs, and a buffet out the door of the mobile home in early November. Neither son was present when the second November episode occurred.
On December 11, 1996, the day before his death, Guerrero and Lumley again argued. Lumley testified that Guerrero was angry because she had been subpoenaed to testify in a forgery case and he did not want her involved. She said that Guerrero did not come home that night but returned at approximately 8:30 a.m. on December 12, 1996. As she was leaving the house that morning, he told her that they would deal with their disagreement when he got home that night.
Justin returned home from school at about 4 p.m. on December 12, 1996, and Lumley took him to Hank and Karen Plummer’s house to pick up Tyler. Lumley usually stayed with Karen Plummer when Tyler played basketball in town. Lumley brought some beer to the Plummers’ house. When Hank came home from work shortly before 5 p.m., another 6-pack of beer was purchased. Guerrero arrived at the Plummers’ house at about 6:30 p.m. According to Hank, Guerrero wanted to speak with Lumley, but Lumley did not want to speak with him. Guerrero said, “okay” and went outside to his car to leave but came back in and told Lumley that he “was going home, if there was anything that she needed.” Hank stated that Lumley responded, “Gas in the car, and you can go pick up my son at the game.”
Guerrero then left to get the gas and to pick up Tyler. While Guerrero was gone, Karen broached the subject of a telephone bill and asked how Lumley and Guerrero planned to pay back $100 they owed the Plummers for the calls made using their phone. Guerrero returned to the Plummers’ house with Tyler and the gas within 45 minutes. Hank testified that Guerrero came in the house and again asked Lumley if he could speak with her. When Lumley again said, “No,” Guerrero announced that “he was going home and going to bed” and left at about 8:30 p.m. Lumley testified that he appeared very angry when he left and she did not want to get into a fight with him.
After Guerrero left, Hank told Lumley that he did not want her or Guerrero to use their telephone anymore. Lumley became angry because she thought Guerrero had paid the phone bill. According to Hank, Lumley suspected that Guerrero was calling another woman who lived in Liberal. However, there were also phone calls to Lumley, who had worked in Liberal while she was living with her brother during her separation from Guerrero in the summer of 1996. Lumley and Karen disagreed about who had made the telephone calls in question, and Hank became angry as well. Karen claimed that Lumley threw a glass down and shoved Karen as she was leaving. Lumley, however, testified that Karen physically tried to stop her from going home by blocking her and she merely pushed Karen aside to leave.
Karen testified that Lumley drank a lot of beer that afternoon and evening and that she thought Lumley was too drunk to drive home. Karen said that she tried to convince Lumley to remain at her house, but she would not. Lumley agreed, however, that her sons could stay at the Plummers’ house. Lumley testified that she left her boys with the Plummers and went home by herself because the boys did not want to go home since Guerrero was so mad.
Tyler testified that on the night of December 12, 1996, Guerrero picked him up from a basketball game and he could smell alcohol in the car, but “he acted pretty nice to me, but I don’t know if he was mad.” After Guerrero brought him to the Plummers’ house, Tyler watched television with his brother and the Plummers’ son, James. Guerrero came into the Plummers’ house briefly but left again, and Lumley, Hank, and Karen sat at the kitchen table talking and drinking. When asked to describe how his mother was acting that night, Tyler said that he thought she was upset when she left, but he did not know why. Tyler stated that about 45 minutes after Guerrero left, his mother
“told us to get in the car, and we went out. And my brother got in the back seat, and I sat in the front seat. And my mom got in, and she — and I told her we didn’t want to go back out to the house, we wanted to spend the night with James. And so she said, ‘Fine.’ And then we got out, and we went back in the house, and then she left.”
When questioned why he wanted to spend the night with James, Tyler stated:
“[M]y brother told me that he’d already been thinking about it because, like, her and Robert [Guerrero] were both pretty upset, and I know that, like, either they were going to get into an argument or something out at the house or that, like, she was going to run into a ditch or something.”
Justin testified to essentially the same version of events as Tyler.
Sheriff Russ DeWitt testified that he interviewed Lumley at about 2:30 a.m. on December 13. DeWitt testified that Lumley related the following regarding Guerrero’s death:
“[S]he entered the west door of the trailer, said she looked left to see if he was in the kitchen, living room area, and he wasn’t there. So she stepped to the right, to the south, into the bedroom, and he was sitting at a southeast comer of the bedroom in a chair, and said he was in his underwear and had a knife that he used occasionally to clean his fingernails, toenails. Said they began arguing, he stood up, and they met at the foot of the bed. They began struggling, they fell on the bed. When they hit the bed, she was on the bottom, he was on the top. As they rolled off the bed, she said as they began to roll off the bed, she noticed blood on his chest, and when they hit the floor, Robert was on the bottom, she was on the top. She said that she saw this knife in his chest, upper left chest area, she pulled it out, closed the blade, tossed it on the bed,’ and put her hands over the wound to tty to stop the blood. She said Robert told her about then he was hurt bad and, ‘Go get help.’ ”
Detective Ted Heaton of the Stevens County Sheriff s Department testified that he had a conversation with Lumley at the scene of the mobile home and that Lumley gave him the same version of events that she gave to DeWitt at 2:30 a.m. Lumley told Heaton that during the argument Guerrero had a knife in his hand. When Heaton questioned Lumley again at the Sheriff s Department, she told the same version of events several times. Two officers then took Lumley to the hospital at about 12:30 a.m. on the morning of December 13, 1996. The cut on Lumley’s arm required stitches, and she was returned to the Sheriff s Department about 1 a.m.
Lumley told the police that after Guerrero told her to' get help, she left the mobile home and drove to the Perry residence. Although no one was living at the Perry residence, she knew there was a telephone in the house. She kicked in the back door to enter and called 911, as well as the Plummers, and told them that Guerrero had cut or stabbed himself. Deputy Purcell picked Lumley up as she ran down the road towards her house. Lumley had crashed her car into a tree in the Perrys’ driveway and could no longer drive it. Purcell stated that Lumley was panicky, hurried, and hys-. terical.
When Purcell and Lumley reached the mobile home, Purcell found Guerrero lying on his back on the bedroom floor. He was near the bed wearing only a pair of underwear. He had a 2- to 3- ■ inch cut on his upper left chest which was approximately VLinch wide and there was blood by the wound “and some smeared down his lower body and a little bit on his legs.” Guerrero’s arms were by his side, the wound was open, and he did not appear to be breathing. Purcell performed CPR on Guerrero until the EMTs arrived.
Hank called the Sheriff s Department after Lumley called him from the Perry residence. He then went to the mobile home. Guerrero was on the floor and Lumley was hysterical and crying.
When Heaton arrived at the scene at 10:08 p.m. that evening, Lumley and Hank were outside. Heaton went inside and saw Guer rero on the floor in his underwear. An EMT told him that there were no signs of life, so Heaton told him to leave and declared the area a “crime scene.” Heaton stated that he did not see or find any bloody rags, towels, or anything that might have been used to stop the bleeding. He found a knife, however, on the bed under the EMT bag. Heaton then went outside and spoke with Lumley. He noticed that she had a cut on her arm which he wrapped in gauze.
Lumley gave the police permission to search her mobile home. Dewitt and Heaton made a videotape of Lumley’s residence about 4 a.m. the morning after Guerrero was killed. They observed a 12-gauge shotgun pump standing up in the southwest comer of the bedroom. Heaton testified that there was a shotgun shell on the north side of the bed and a shotgun shell on one of the nightstands or dressers along the east wall. They also found a knife sheath under the bed.
After viewing the scene, Dewitt spoke again with Lumley and told her that since Guerrero had blood on his legs, he must have been standing when he was cut. Lumley told Dewitt that she had taken the knife away from him and thrown it and Guerrero must have been cut at that point. Dewitt then told Lumley. that Guerrero’s wound was caused by a downward stroke which was not consistent with throwing a knife. Lumley responded that she had taken the knife away; that she was tired of getting thrown around; and that she struck him with the knife to get him away from her.
Heaton testified that when he and Dewitt questioned Lumley again at about 6 a.m., her story changed slightly. The officers “indicated to her by question that it couldn’t have happened that way.And from thé first scenario that I gave you earlier to this particular time, she said, “Well we got into a struggle, and I got a hold of the knife, and I threw it to get it away from me. And that must have been when I cut him.’ And that was the change in the story.” During this 6 a.m. interview, Lumley demonstrated for the officers what had happened, and she indicated that the knife was clearly in Guerrero’s right hand. Heaton stated that when they questioned Lumley in the afternoon or early evening on December 13, her story changed again. Heaton related Lumley’s version of events at that time as follows:
“He had the knife, and then she got the knife. However she got it, that’s unclear. And then it changes there, that she stabbed him to get him away from her, not the part about trying to throw it away or fell to the bed and caused the wound.”
When Lumley testified at trial, she stated that she had never told Heaton or DeWitt that she cut Guerrero with the knife while trying to take it away from him. She denied stabbing Guerrero. Dewitt was well acquainted with Guerrero and testified that he was a very strong man with good upper body strength.
Dr. Hubert' Peterson, a pathologist in Liberal, Kansas, conducted the autopsy on Guerrero and determined that he had suffered a single stab wound to the upper left chest which had caused him to bleed to death. This wound went 5Vz to 6 inches into his body and reached his heart. The knife went parallel to the rib cage, and it would usually take a fair amount of force to make this wound. However, such penetration could occur fairly easily with a sharp knife. Blood splatters on Guerrero’s body indicated that he was upright when he was stabbed, because the way the blood had travelled from the wound was not consistent with a body in the supine position. Most of Guerrero’s bleeding was internal into his chest cavity.
Dr. Peterson further testified that Guerrero’s wound could be consistent with him turning away from or turning towards the person with the knife, and it was not likely that he was directly facing a person with a knife when the wound was inflicted. Dr. Peterson also testified that it was possible that Guerrero’s wound could have occurred as the result of a fall during a struggle, but it would have been difficult for him to have caused the wound himself while holding the knife in his right hand. Likewise, it would have been awkward for him to have caused the wound to himself with his left hand. When the prosecutor asked Dr. Peterson if “two people were fighting and fell on a bed flat, it would be next to impossible to— for the bed or the force of the bodies to insert thé knife into Robert’s chest [in] that direction?” Dr. Peterson responded that it would be difficult, but it could be possible.
Upon cross-examination, Dr. Peterson noted that Guerrero’s wound “was unusual in that it was rather deep to be so oblique.” He responded that Guerrero’s wound could be consistent with the scenario that Lumley had a hold on Guerrero’s hand and wrist, they were struggling, and in the struggle he fell on the bed. Defense counsel asked him “[I]f the body were placed in an upright position shortly after the injury, within a matter of seconds, would those types of bloodstains on the abdomen be consistent with that?” Dr. Peterson responded that “[i]t’s conceivable it could be, yes.”
Kelly Robbins, a blood analysis expert who worked in the Kansas Bureau of Investigation crime laboratory, testified regarding the blood stain analysis done on items from the scene. She. stated that blood of both Guerrero' and Lumley was found on the top cover of the bed. A blood sample taken from a sock was consistent with Guerrero’s blood. She summarized that the knife used in the stabbing, a sheet beneath the bedspread, the sock, and the carpet showed only Guerrero’s blood. The pants and shirt that Lumley was wearing the night of Guerrero’s death were analyzed and showed only Lumley’s blood and none of Guerrero’s blood.
The State presented witnesses who testified that Lumley had made jealous threats against Guerrero. Lori Cole had been friends with both Guerrero and Lumley for about 2 years and worked part-time at the bar in Liberal where Lumley previously worked. Cole testified that her last conversation with Lumley was in Liberal about 2 weeks prior to Guerrero’s death. Cole stated:
“We sat and had — I had a drink and she had a beer. She said things that did not— 1 did not believe at the time that she would actually do because she just always talked. She said that she would kill him, that she carried a knife in her purse, which I knew she always did anyway, from knowing her previously.”
When the State questioned Cole regarding whether Lumley had indicated why she would make such a threat, Cole stated that Lumley had not said why and that Lumley did not mention anything to her about Guerrero dating other women.
Anna Aranda also testified for the prosecution. She had known Guerrero for about 13 years and Lumley for about 7 to 8 years. Anna described Guerrero and Lumley’s relationship over the last 2 years as “[vjery unstable, a lot of fighting, a lot of fighting on [Lumley’s] part that I’ve witnessed.”
Dana Jones, Lumley’s brother, testified that in August 1996, his sister was "quite upset because some rumors had been flying around that Robert had slept with a girl named Mandy.” He testified that Lumley was upset, but she never threatened to kill Guerrero.
In its rebuttal evidence, the State called Trinidad Aranda, Jr., Anna’s husband. Junior stated that on August 14, 1996, Lumley ran into their backyard and said she was going to kill Robert and then kill Mandy. Junior was also present when Lumley came to the Aranda house in September 1996. When asked whether Lumley had made any threats against Guerrero, he stated that she had said “she was going to kill Robert, and Mandy was next.”
Anna’s daughter, Jessica, also testified regarding the August 14 incident and stated that Lumley said she had seen Guerrero at Mandy’s residence and that “if she couldn’t have him, no one else can.” Jessica was also present when Lumley came to the Aranda house in September and said Lumley was irate that Guerrero was at Mandy’s house. She testified that Lumley again threatened to kill Guerrero and Mandy.
Lumley denied making any of the threats referred to by the State’s witnesses in their testimony. Lumley testified that (1) she did not believe that Guerrero was seeing other women in the fall of 1996, (2) she did not stab him, (3) she loved him, (4) he was a good person when he was not drinking, and (5) they had been together and helped each other for 8 years.
Lumley took the stand and testified on her own behalf. She related the following version of events that led up to Guerrero’s death:
“I opened the back door, and I looked — I went in the house, I looked towards the living room, and I walked into the bedroom. Robert was sitting in his chair..... And he was already starting to get up out of the chair as I went to the bedroom. And he was very angry, and he was yelling at me. And he grabbed a hold of my arm, and he had the knife in his left hand, which would have been on my right side, and he was waving the knife around in front of me.
“And I had a scratch on the bottom of my chin. And I got really scared. And so I grabbed his hand that was around the knife. And he had kind of, you know, raised it up in the air because I was trying to get a hold of it. And I pushed it, I was trying to push it away from him, when I pushed it towards him. And he was jerking me around, and we fell on the bed. And then I — I heard him go ‘Uh,’ and his hand kind of loosened. So I was — I was trying to get out from underneath him, and I rolled him to the floor, and I come out on top of him. And I seen the knife stuck in his chest. So I pulled the knife out of his chest, and I — we fell into a really tight place between the bed and tire dresser. So I stepped over him, and I got him around here [demonstrating], close to his armpits, around here, and I dragged him flat. And I put my hands over the wound to stop the bleeding. And he told me to go get help. So when I was going out the bedroom, I almost fell.
“And I went straight to my car, and I went to Perry’s house. And I was driving very, very fast because I was very, very scared, and I was upset. And that driveway — it’s really dark out there, and I went to the north side of the driveway, and it kind of curves, and so my car started doing this [demonstrating], and it went against the tree.”
I. EVIDENCE
The admissibility of evidence lies within the sound discretion of the trial court. In State v. Sims, 265 Kan. 166, 175, 960 P.2d 1271 (1998), the court stated that “ ‘it is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion ” (quoting State v. Sims, 262 Kan. 165, 170, 936 P.2d 779 [1997]). In State v. Gardner, 264 Kan. 95, 103, 955 P.2d 1199 (1998), we noted that “[a] trial court’s ruling regarding the admission of evidence is subject to an abuse of discretion standard of review.” (Citing State v. Vaughn, 254 Kan. 191, 204, 865 P.2d 207 [1993].) Further:
“ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. ... If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.’ State v. Stallings, 262 Kan, 721, Syl. ¶ 6, 942 P.2d 11 (1997).” State v. Gardner, 264 Kan. at 104.
The Stallings court also noted that the “[o]ne who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion.” 262 Kan. 722, Syl. ¶ 7.
Under K.S.A. 60-401(b), relevant evidence is evidence “having any tendency [in reason] to prove any material fact. For evidence of collateral facts to be competent, there must be some material or logical connection between them and the inference or result they are designed to establish.” State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986) (citing State v. Reed, 226 Kan. 519, 524, 601 P.2d 1125 [1979]).
Lumley argues that the trial court had the duty to exclude prejudicial evidence with little or no probative value. In State v. Benoit, 21 Kan. App. 2d 184, Syl. ¶ 11, 898 P.2d 653 (1995), the court noted that when a question arises “as to whether evidence at trial is unfairly prejudicial, the trial court has an obligation to weigh the probative value of the evidence. When the prejudicial effect of the evidence on the trier of fact outweighs the probative value of the evidence, the evidence should be excluded.” Lumley asserts that Karen Plummer’s testimony about Guerrero borrowing bond money to get her out of jail was irrelevant, yet highly prejudicial, and the trial court should not have permitted it. The following dialogue between the prosecutor and Karen about the money owed on the phone bill contains the complained-of statement:
“Q. [Mr. Tate] And approximately how much was owed on that bill to you?
“A. [Karen] Well, through, like, all summer and stuff, they owed me about a hundred, or more, plus the $200 for bond that we loaned him to get Vickie out of jail.
Mr. Kuliaric: Objection, Your Honor, objection, Your Honor.
“A. So about 300.”
Lumley correctly notes that the court never ruled on tire objection. In State v. Lee, 263 Kan. 97, Syl. ¶ 3, 948 P.2d 641 (1997), the court stated that “[a] trial court’s decision concerning the admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion.” In State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994), aff'd 260 Kan. 85, 917 P.2d 859 (1996), the court explained that the reviewing court must scrutinize each case “on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.” (Citing United States v. Grunberger, 431 F.2d 1062 [2d Cir. 1970].)
Lumley contends that the complained-of evidence was not relevant; thus, it was not admissible. K.S.A. 60-401(b) provides that relevant evidence means “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-407(f) states that “all relevant evidence is admissible.” Lumley argues that the evidence indicating that she had been in jail before served no purpose other than to degrade her and had no bearing on any contested issues at trial.
In State v. Bradford, 219 Kan. 336, Syl. ¶ 1, 548 P.2d 812 (1976), the court held that “[w]hether inadmissable testimony constitutes harmless or reversible error depends upon the circumstances of the case in which the question arises.” Bradford appealed from a conviction of murder in the second degree. One of his issues on appeal asserted that “testimony by a state’s witness that defendant had been in prison inflamed and prejudiced the jury.” 219 Kan. at 337. In Bradford, as in the case at hand, a witness for the State mentioned during her testimony that Bradford had been in the reformatory and in prison. Lumley’s case and Bradford are similar in that it is apparent from the record in both cases that the statements “by the witness were unsolicited and were not intentionally placed before the jury by the State.” 219 Kan. at 337-38. The Bradford court, however, took immediate action to strike the inadmissable evidence and admonished the jury to disregard it, whereas in this case the court did not rule on Lumley’s objection.
The State contends that Karen’s answer to the prosecutor’s question was partially nonresponsive and cites to State v. Gray, 55 Kan. 135, 140, 39 Pac. 1050 (1895), wherein the court stated:
“Where a proper question is asked, and an improper answer given, the only remedy of the aggrieved party is by motion to strike [it] out. It is impossible for the court to answer in advance to exclude an improper answer to a proper question. The propriety of the answer cannot, in the nature of things, be determined before it is given.”
The State also cites State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967). In Childs, the State asserted that a police officer’s answer was nonresponsive and clearly unforeseeable. Defense counsel objected, but the trial court did not rule on the objection. The Childs court held that the unsolicited answer was clearly unforeseeable because it was an unresponsive answer to a proper question. Therefore, it was incumbent on the defendant in Childs to move to strike the objectionable portion of the answer. Thus, if a witness answers a question so quickly that an objection cannot be made prior to the answer, a motion to strike is the proper remedy. Having failed to move to strike the evidence, Lumley has not preserved the issue for appeal.
II. RELATIONSHIP WITH GUERRERO
The admissibility and exclusion of evidence lies within the sound discretion of the trial court. State v. Peckham, 255 Kan. 310, 319, 875 P.2d 257 (1994). Lumley argues she was denied her right to present a defense by the judge’s rulings placing limitations on her introduction of evidence regarding her relationship with Guerrero and his acts of violence towards her. Lumley asserts that in cases of marital homicide, evidence which explains the relationship of the parties is always admissible, and because self-defense was asserted, she had the right to present evidence of Guerrero’s violent nature.
Lumley argues that the trial court’s ruling to limit the evidence to testimony from herself and her sons violated her right to present a defense because she would have called other witnesses to testify about her violent relationship with Guerrero. Lumley asserts that she would have presented evidence essential to her defense from Hank and Karen Plummer, Guerrero’s mother, and a counselor from a rape crisis center.
Lumley avers that the State portrayed her as an angry, jealous aggressor. She defended, however, on the grounds that she returned home to a violent, angry husband, who attacked her. Lumley maintains that the “marital homicide exception” and the Fourteenth Amendment right to present a complete defense supersede the provisions of K.S.A. 60-446, which provides:
“When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.”
In State v. Taylor, 234 Kan. 401, 673 P.2d 1140 (1983), Taylor was convicted of first-degree murder for killing his wife. He asserted on appeal that the trial court erred in allowing the introduction into evidence of a notebook containing letters to Taylor written by the deceased wife when they had attended a marriage encounter session together. One of the letters stated that Taylor s temper, anger, and outbursts greatly scared her. The notebook also contradicted Taylor’s claim that his wife had determined not to seek a divorce and they were resolving their marital problems. The wife wrote in her notebook that she was attending the marriage session, to help prepare Taylor for divorce and that a marital relationship was no longer possible for them. Taylor objected to the admission of the wife’s notebook on the grounds of relevancy, materiality, remoteness, and hearsay. The Taylor court held:
. “Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish tire relationship between the parties, the existence of a continuing course of conduct between tire parties, or to corroborate tire testimony of the complaining witness as to tire act charged. Cases have allowed prior conduct to be admitted into evidence where a family relationship existed.” 234 Kan. at 407.
The State filed a motion in limine to limit evidence regarding Guerrero’s turbulent character. In its motion, the State asserted that since self-defense was an issue in the case, evidence of his turbulent character was admissible, but such evidence should be confined to evidence of his general reputation in the community. Also, specific instances of misconduct could only be shown by evidence of conviction of a crime. In support of its motion, the State cited State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996), and State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993). The Alderson court stated that ‘“where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime.” 260 Kan. 446, Syl. ¶ 11.
The trial court initially stated that it was “[g]oing to prohibit any attempt to introduce evidence of turbulent character of the deceased, except by general reputation in the community, and except by specific evidence of conviction.” The judge explained to defense counsel, however, that he did not want the defense to misinterpret this ruling and stated:
“I’m not limiting your client’s testimony or other evidence of — from your client, as you proffered earlier in the hearing when you indicated that you would have evidence to offer from the defense. But at this point in time, I’m going to prohibit any attempt to show [Guerrero’s] character — any turbulent nature of the deceased’s character, except by general reputation and except by conviction, understood?”
. Defense counsel questioned whether the judge was ruling that Lumley could not testify to prior acts by Guerrero. The judge clarified his ruling and specified that he was not ruling that Lumley could not testify to Guerrero’s prior acts. He stated that he was not making such a ruling and did not “in any way, shape, of form even begin to approach that. The [State’s] motion in limine goes to character evidence, and it only goes that far, and that’s as far as I’m going to rule on it; understood?”
Defense counsel requested the admission of evidence to prove Lumley’s state of mind and her use of self-defense. The judge' ruled:
“[0]nce die defendant, and only if the defendant, has introduced evidence of self-defense, then, at that point in time, the defendant is entitled to introduce into evidence character, turbulent character, of die defendant, if you have a witness available for that, and evidence of violent nature or cruel nature between the defendant and the decedent.”
The judge cited State v. Hundley, 236 Kan. 461, 464, 693 P.2d 475 (1985), in which the court stated that “[i]t is well settled in Kansas that when self-defense is asserted, evidence of the cruel and violent nature of the deceased toward the defendant is admissible.” The judge also cited State v. Gray, 179 Kan. 133, 135, 292 P. 2d 698 (1956). The Gray court held that a defendant on trial for murder, “after laying a proper foundation by evidence tending to show that in committing the offense he [or she] acted in self-defense, may introduce evidence of the turbulent and quarrelsome character of the deceased.” 179 Kan. 133, Syl. ¶ 1.
When Lumley testified, she presented theories involving both accident and self-defense. Thus, the court permitted her to testify in detail about Guerrero’s general propensity for violence, as well as specific episodes of his violence against' her. She testified that she was “very scared” of Guerrero because of an incident in early November 1995. The State objected when Lumley began to explain the incident, and the court held an off-the-record discussion between counsel and overruled the State’s objection.
Lumley subsequently testified regarding a violent episode with Guerrero occurring in early November 1995. Lumley testified that Guerrero was drunk, mad, and
"started tearing up the house and throwing the furniture out the door and going after the kids and yelling and screaming. And he physically took me from the living room into our bedroom, and he threw me against the wall. There was a big ol’ place where you could see that I had been against the wall. And I almost went through the windows. They all broke, they had to be replaced. He tried to smother me. He was very violent, and very upset, he was very mad, and he was throwing me around.
“And he went back out of the house, and came back in. And I had gone back in the — into the living room. And the boys had said something to him, and he started down the hall. And I got between him and the boys, and I ended up across the living room. He kind of pitched me across the living room. And I had — I started feeling really bad, having pains in my chest and up my arm.
“And he continued to tear out dresser drawers and throw them out the door and throw the silverware out the drawer and door, and the buffet and the table. He was very drunk and very mad.
“And he ended up taking me to the Hugoton hospital, to the emergency room. And I was seen by a doctor there. And I had — I had bruises on my chest, and the upper muscles in my body were pulled, and had bruises on my arms.”
Lumley also testified that a similar episode had occurred later in November 1996, wherein Guerrero had been drinking, became angry with her, and “he kind of pitched me around. He put holes in the walls. And he was screaming, and he was hollering.” Lumley testified that she moved out of the mobile home in May 1996 and lived with her brother in Liberal because of Guerrero’s “drinking and because of his temper and because we couldn’t get along.” Lumley and her sons resumed living with Guerrero in June 1996 but moved out again a few weeks later. Lumley said they reunited in September 1996 because they had resolved their relationship during the summer and Guerrero “said he loved me, and I really loved him. So I came back home to work this out. He said he would stop drinking.”
Lumley’s sons also testified regarding specific acts of violence by Guerrero. Tyler testified that during the first November incident, Guerrero and Lumley were arguing and Guerrero was
“pretty mad. And they were arguing and stuff in their bedroom. And when he came out, they were yelling, and he — there was a couple of 12-packs of pop on the table, and he knocked them off the table and then tipped over the table. And then he started throwing stuff out the door.
“And then my mom was walking back to our room or something, and she tripped over the coffee table in the middle of the floor. And she started holding her chest like she was having a hard time breathing and stuff. And Robert [Guerrero] took the table and threw it out the door.”
Tyler testified that he had not seen Guerrero hit Lumley during this episode, but he could hear yelling and screaming coming from the bedroom. He also heard “stuff being thrown and stuff hitting the wall, and I heard a window break.” When asked whether he was afraid of Guerrero, he answered, “Sometimes.” Justin testified to a similar version of events regarding the November incident.
Lumley correctly quotes that “[t]he rule in Kansas is that in a case of marital homicide, evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is competent as bearing on the defendant’s motive and intent.” Taylor, 234 Kan. at 408.
Lumley’s brief states that she was allowed to present her testimony and the testimony of her two sons regarding Guerrero’s acts of violence in the home, but appellate counsel was “informed” by trial counsel that she had planned to present additional testimony from Hank and Karen Plummer regarding Guerrero’s violent nature and certain acts of violence against Lumley by Guerrero. Further, trial counsel would have called Guerrero’s mother to testify that she had, at times, seen bruises on Lumley.
In the absence of a proper proffer, this court has no way to know what the proposed witnesses would have said, and it is impossible to determine whether their testimony would have been admissible. The argument that these witnesses would have been called to testify is raised for the first time on appeal. “A point not raised in the trial court cannot be raised for the first time on appeal.” State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994) (citing State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 [1992]). Further, the trial court was under no obligation to allow the testimony of witnesses whose testimony was never proffered.
At trial, Lumley never called Hank or Karen Plummer, Guerrero’s mother, or the counselor from the rape crisis center as witnesses to elicit their testimony, and Lumley did not proffer their testimony. In State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993), the court stated that “[i]t is well established that a party may not assert error based upon the erroneous exclusion of evidence in the absence of a proffer of that proposed evidence. [Citations omitted.]” K.S.A. 60-405 governs the erroneous exclusion of evidence and provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating die desired answers.”
If Lumley had additional evidence of Guerrero’s violent nature, she should have called these witnesses. If the court would not allow her to call them, she had an obligation to proffer their testimony. However, no such evidence was excluded and no such evidence was proffered. Thus, Lumley cannot assert error based upon the erroneous exclusion of evidence in the absence of a proffer of their proposed testimony.
After Lumley asserted her self-defense theory, the trial court followed its ruling and Lumley and her sons were allowed to present significant testimony regarding Guerrero’s alleged violent conduct and abusive acts. For this court to reverse the trial court on the basis of a decision regarding admission or exclusion of evidence, we must find that the trial court abused its discretion. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). A reasonable person could take the view adopted by the trial court under the circumstances of this case. Thus, the trial court did not abuse its discretion, and this issue fails.
III. PROSECUTOR’S COMMENTS
In State v. Collier, 259 Kan. 346, 354, 913 P.2d 597 (1996), the court stated:
“The analysis of the effect of a prosecutor’s allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of die considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that ‘[i]n criminal trials, the prosecution is given wide latitude in language and in manner of presentation of closing argument as long as it is consistent with the evidence adduced.’ State v. Duke, 256 Kan. 703, Syl. ¶ 5, 887 P.2d 110 (1994).”
Second, “[e]ach case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.” State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994). Appellate review of this issue is governed by the following standard:
“ ‘Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.’ Whitaker, 255 Kan. 118, Syl. ¶ 7. ‘In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.’ State v. Gibbons, 256 Kan. 951, Syl. ¶ 9, 889 P.2d 772 (1995).” Collier, 259 Kan. at 354.
This court must analyze the prosecutor’s questions on cross-examination under a similar standard. Specifically, “[i]n deciding the question of whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.” State v. Moncla, 262 Kan. 58, Syl. ¶ 3, 936 P.2d 727 (1997).
Lumley maintains that the State sought through the testimony of Karen and Hank Plummer, that on the day of Guerrero’s death, Lumley discovered that Guerrero had been making telephone calls to a woman named Mandy Watson. If the State could have established that evidence, the defense contends, it would have refuted her self-defense or accident claim and tend to support a theory of intentional murder. Neither Hank nor Karen testified that Lumley saw Watson’s telephone number on the phone bill; thus, Lumley contends, the State failed to establish its claim.
Lumley asserts that despite the lack of such testimony, the prosecutor was allowed to question Lumley in a manner which implied that the Plummers had testified that she had discovered such information on the day of Guerrero’s death. Further, the prosecutor was allowed to make the same implication and misstate the evidence in closing argument. Lumley thus contends that such misstatements denied her a fair trial. The following portion of the prosecutor’s cross-examination is cited by Lumley as misstating the evidence:
“Q. [Mr. Tate] Isn’t it true that he [Guerrero] was seeing Mandy Watson?
“A. [Lumley] No. He came to my house and informed me that he got mad at me, and he — it was my fault he slept with her one time. And we talked that out, and it was done.
“Q. [Mr. Tate] And isn’t [it] true that you expressed a great deal of anger at the Plummer residence on December the 12th that Robert [Guerrero] had been using their phone to call her?
“A. [Lumley] No, Robert’ had been using that phone to call me at my brother’s house, to my knowledge.
“Q. [Mr. Tate] You heard the testimony of [the] Plummers, didn’t you?
“A. [Lumley] Yes.
“Q. [Mr. Tate] And they indicated they’d gone over the phone bill with you, and that some of those numbers were to Mandy Watson?
“A. [Lumley] I’ve never seen the phone bill, Mr. Tate.
Mr. Kuharic: Objection, there’s no testimony to that effect.
Court: Fair cross-examination, Mr. Kuharic. Proceed.
“Q. [Mr. Tate] Isn’t it true that they showed you those phone bills, and there were phone calls to Mandy Watson?
“A. [Lumley] I wouldn’t know if they were to Mandy Watson, I don’t know her phone number.”
Lumley asserts that these questions during cross-examination violated her right to a fair trial because neither Karen nor Hank Plummer testified that Lumley had seen Watson’s telephone number on the phone bill.
Although neither Karen nor Hank specifically mentioned Watson’s name, Karen testified that when she and Lumley had the conversation about how the Plummers’ phone bill would be repaid, Lumley indicated that she thought Guerrero had been using the phone to call other women. Specifically, the prosecutor asked Karen: "Did [Lumley] indicate to you that she thought he [Guerrero] was calling other women?” Karen replied: ‘Tea, some girls.”
Likewise, Hank never mentioned Watson’s name specifically, but when the prosecutor asked Hank whether Lumley had made any comments about who she thought Guerrero had been calling on the Plummers’ phone, he testified that Lumley’s response was “[t]he bitch is in Liberal.” Hank said that upon showing her the phone bill, Lumley recognized numbers , on it and stated that "she knew what he was doing when he was calling, and she knew who the numbers were for, who the numbers were to.” Hank could not remember to whom Lumley said the phone numbers belonged, but stated that it was a “girl’s name, and the other calls were bars, to bars in Liberal.” Hank also stated that Guerrero had also made cálls to a Liberal bar looking for Lumley when she was working at a bar in Liberal.
Assuming that the prosecutor’s remarks were improper as outside of the facts adduced in the case up to the point when the Plummers testified, the prosecutor’s questions do not constitute reversible error. When these questions are viewed in the light of the trial record as a whole rather than as isolated incidents, the complained-of conduct does not mandate a reversal of Lumley’s conviction.
In terms of the overall record, there was an abundance of testimony regarding Watson and Lumley’s reaction to Guerrero’s affair with her. Lumley admitted that such an affair had occurred when the prosecutor asked her whether Guerrero had been seeing Watson, and she answered that Guerrero was angry at her and “it was my fault he slept with her one time.” Further, the State presented various witnesses who testified that Lumley thought Guerrero was still having an affair with Watson.
In conclusion, although the prosecutor may have made improper remarks when questioning the Plummers because no evidence had been submitted regarding Watson, such remarks do not constitute reversible error when viewed in light of the trial record as a whole.
IV. IMPROPER CLOSING ARGUMENT
In Whitaker, the court stated:
“Before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his or her conviction, it first must appear that it was injurious to the accused and was likely to affect the jurors to the accused’s prejudice. [Citation omitted.] Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.” 255 Kan. at 134.
Lumley argues that the prosecutor overstepped the bounds of appropriate argument by asserting facts not in evidence, rather than arguing that the evidence was consistent with his theories. Lumley cites State v. Steadman, 253 Kan. 297, 855 P.2d 919 (1993), as authority that it is a fundamental rule that counsel confine their remarks to matters in evidence. The Steadman court stated that “[i]n a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty or not.” 253 Kan. at 304.
In State v. Bradford, 219 Kan. 336, 338, 548 P.2d 812 (1976), the court noted that “[t]he defendant is entitled to a fair trial but not a perfect one. Whether inadmissible testimony constitutes harmless or reversible error depends upon the particular evidence and the circumstances of the case in which the question arises.” The Bradford court professed:
“ ‘A relevant factor in determining whether an erroneous admission of evidence is harmless error is the weight of evidence supporting the conviction. . . . We are convinced upon a review of the whole record that the evidence was of such direct and overwhelming nature and showed appellant’s guilt of the two offenses charged to such extent that admission of the California conviction could not have affected the result of the trial and therefore its admission must be deemed harmless error.’ ” 219 Kan. at 338 (quoting State v. Fennell, 218 Kan. 170, 174, 542 P.2d 686 [1975]).
In State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 (1974), overruled on other grounds State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976), the court said:
“[T]he erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. [Citation omitted.] A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials. [Citations omitted.] Not every admission of inadmissible evidence can be considered to be reversible error; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. K.S.A. 60-261 requires the courts of Kansas to disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. This rule known as the harmless error rule applies unless the error is of such a nature as to amount to a denial of substantial justice. [Citation omitted.]”
Lumley argues that the prosecutor’s remarks in closing were mere theories of how the stabbing could have occurred and assertion of such theories was error when combined with the prosecutor’s use of facts not in evidence. Lumley contends that because the prosecutor suggested that Lumley saw Watson’s number on the phone bill the night that Guerrero was killed, this improperly portrayed her as having a motive to kill Guerrero. The defense argues that the Plummers never testified that Lumley saw Watson’s number on the phone bill the night of the stabbing.
The same analysis applies to this argument as set out in the previous issue. Although the Plummers never testified that Lumley had seen Watson’s number, they testified that she knew from the phone bill that Guerrero was calling other women. Hank noted that there was one particular woman whose name he could not remember. Thus, although Watson’s name was not per se a fact in evidence, the suggestion that Lumley had seen Watson or another woman’s phone number on the Plummers’ bill does not warrant reversal when viewed in the light of the record as a whole.
Lumley also claims that the trial court erred in allowing the prosecutor to imply in closing argument that Lumley bore the burden of bringing forth evidence of her innocence. The first example cited by Lumley was the following remark made by the prosecutor:
“[I]t is very possible and very likely that the defendant comes into the room, the pants are on the bed, she takes the scabbard off, gets the knife out, Robert is either in bed, in the bathroom, in [his] chair asleep, he comes in, there is a confrontation, and she stabs him. And if that’s not how it happened, she was unable to explain, and she was there.”
The second example Lumley cites is the following: “If you’ll notice, who testified for the defendant? The defendant, her two children, and her brother. Do we have any independent testimony from the defendant? No. Do we have any physical evidence whatsoever that corroborates her statement? No, none whatsoever.” Lumley contends that these comments by the prosecution amount to constitutional error because the prosecution was essentially arguing that she failed to prove her innocence and this impermissibly shifts the burden of proof to her in violation of her rights under the Fourteenth Amendment to the United States Constitution.
Lumley fails to note, however, that in the first example, the prosecutor’s next sentence was the following: “Now, one very important point for you to remember is that I have the burden of proof, the State of Kansas has the burden of proof.” Thus, the prosecutor made clear that Lumley did not have the burden to prove her innocence. The second example should be considered in light of the preceding paragraph wherein the prosecutor mentioned the witnesses who testified against Lumley and commented that the “people wdio testified against her, they all testified drat they were not only Robert’s friends, but they were her friends. They weren’t related to Robert. They’re not some ringer[s] that we brought in off the street.”
The prosecutor’s statement that only Lumley and her relatives testified for the defense should be taken in the context of comparing the State’s witnesses with the witnesses for the defense. The prosecutor appeared to be making the point that the State’s witnesses did not have a motive to hurt Lumley because they had been friends with her. The statement that Lumley did not produce any corroborating physical evidence for her story does not necessarily imply that she had the burden to come forward with evidence to prove her innocence. Upon reading the record in its entirety, a great deal of time was spent during the trial on testimony by the pathologist and the blood splatter analyst. Even if it was misconduct by the prosecutor to suggest that Lumley had no physical evidence to support her version of events, in light of the record as a whole, this was not reversible error.
More importantly, the defense never objected to the prosecutor’s complained-of comments during the trial’s closing argument. “ ‘Since Kansas does not follow the ‘plain error’ rule used in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. [Citation omitted.]’ ” State v. Sex ton, 256 Kan. 344, 363, 886 P.2d 811 (1994) (quoting State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 [1991]). If the prosecutor’s statements, however, rise to the level of violating a defendant’s right to a fair trial and, thus, deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. We have previously set out the appellate standard of review for the issue at hand:
“Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the fight of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error. United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970). The court has a duty to stop improper argument ‘[wjhere counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case.’ State v. Ruff, 252 Kan. 625, 635, 847 P.2d 1258 (1993). Before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his or her conviction, it first must appear that it was injurious to the accused and was likely to affect the jurors to the accused’s prejudice. State v. Ruff, 252 Kan. at 632. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. Reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991).” State v. Whitaker, 255 Kan., at 134.
Here, Lumley did not make a contemporaneous objection, and the statements do not rise to the level of denying Lumley her Fourteenth Amendment right to due process.
The defense next challenges that the prosecutor’s following remarks came “perilously close” to impermissibly vouching for his own witnesses personally or stating that Lumley and her witnesses were lying.
“If you choose to believe a defendant who has a great deal at stake, who has every reason to fie, and her two sons who have testified on her behalf, and her brother who has testified on her behalf, related third parties, then you will find her not guilty. . . . Mr. Kuharic’s client, the defendant, has had the luxury of having seven months to craft a story, to try to fit these facts while she was at the sheriff s office.”
The same analysis applies to these remarks as applied to Lumley’s claim that certain remarks by the prosecutor during closing argument constituted reversible error. No contemporaneous ob jection was lodged to these remarks, and even if we consider these comments- to be prosecutorial misconduct, there was little or no likelihood that they changed the result of the trial.
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The opinion of the court was delivered by
McFarland, C.J.:
The State appeals from the dismissal of a complaint at a preliminary examination. We have jurisdiction pursuant to K.S.A. 22-3602(b)(1). The proceeding was on a charge of aggravated assault (K.S.A. 21-3410[a]) filed against Paul Conrad Powell, Sr. The district court dismissed the charge on the ground the State had failed to establish probable cause that the offense had been committed. A second charge of misdemeanor domestic battery (K.S.A. 1997 Supp. 21-3412) alleging defendant’s wife was the victim thereof was subsequently dismissed by the State.
LEGAL STANDARDS
If from the evidence presented at a preliminary éxamination, it appears that a felony has. been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over for trial. K.S.A. 22-2902(3); State v. Martinez, 255 Kan. 464, 466, 874 P.2d 617 (1994). If there is not sufficient evidence, the defendant must be discharged. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985); K.S.A. 22-2902(3).
From the evidence presented, the court must draw inferences favorable to the prosecution, and the evidence need only establish probable cause, not guilt beyond a reasonable doubt. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Allen, 260 Kan. 107, 110-11, 917 P.2d 848 (1996); State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986).
It is not the function of the judge at a preliminary examination to determine the wisdom of the prosecuting attorney’s decision to file and pursue the charges against a defendant. Neither is it the function of the judge to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). See State v. Whittington, 260 Kan. 873, 876, 926 P.2d 237 (1996).
In appeals by the prosecution from an order discharging the defendant for lack of probable cause, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. This court is to conduct a de novo review of the evidence when considering the trial court’s probable cause finding. State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996).
FACTS
The charges herein grew out of a domestic fracas which occurred on September 25, 1996, on the grounds of defendant’s residence. Those involved are defendant (Paul Conrad Powell, Sr.), his wife (Judith Powell), his son (Paul Conrad Powell, Jr.), and his daughter (Lisa Mesa). Lisa had to vacate her home on short notice, and Judith had agreed to the temporary storage of Lisa’s furniture in a Morton building located on the senior Powell’s property. After Judith and the two siblings started unloading the furniture, defendant came out of the house and became angry over the large quantity of items involved. He hit or hit at his wife. The incident escalated into a physical altercation between father and son. The daughter was so concerned she called 911 (from the Morton building). The tape of the 911 call is a part of the record. We have made the following transcription thereof (blanks are inaudible portions):
“#2: Hi, I need the police bad. Um, my dad’s crazy, he’s hitting my mom and my brother_fight. We’re at 4121 North Niles. He’s got a bunch of guns out here. I’m trying to get my mom and my brother and we’re going to leave. My little sister’s in the house, she’s only 13. He’s got a bunch of guns. Can you please hurry?
"#1: What’s the phone number out there, ma’am. You need to calm down.
“#2: Ok, but I can’t_my dad’s_got a bunch of guns. He’s crazy, he’s manic depressive.
“#1: Has he got, has he got any of them out, ma’am.
“#2: What? Paul, wait, don’t leave, [crying]
“#3: Clear the cha—
“#1: Ma’am?
“#2: He’s using 'em, he’s_[screaming]
“#3: Clear the channel
“#2: [screaming] No [crying]
“#1: Ma’am?
“#2: He’s_
“#1: Hey ma’am, is there somebody shooting there?
“#2: He’s got a gun, he’s pointing_[crying] No, daddy, please.
“#1: Uh, ma’am, was that a gunshot I heard?
“#2: Yes.
“#1: What you shooting at?
“#2: I gotta go.
“#1: Ma’am, where’s he shooting at?”
After the law enforcement officers arrived, the daughter wrote out the following statement:
“Paul Jr, my brother, and I and my mom, Judy, went to 4121N. Niles rd to unload a truck of boxes in my parents mason building & my dad came out & him and my mom were arguing and my dad hit my mom so my brother told him to quit & then he pushed my brother up againt the truck by the neck & then my brother & my father started fighting my mom & I tried to pull my brother off my dad & I tried to stop my dad from going inside to the house & I had to let go so I went to the phone in the mason building & called 911 — my brother got in the truck & told me & mom to get in & I said no cause 911 hadnt answered yet then they answerd & I was talking to them & watching outside I saw my brother in the truck & I saw my dad had a rifle pointed at him & then I think I told 9111 had to go now & I ran through the field to the road & saw the sherriffs car & talked to them.”
PAUL JR.’S TESTIMONY
Asked if something besides the furniture precipitated the ensuing incident, Paul said defendant had “made a slapping motion at my mom enough to, you know, kind of tap, but it wasn’t an actual hit.” Paul said this upset him and he told defendant not to hit her. It was after the son confronted his father that defendant grabbed him.
Paul testified that he and defendant “got into it a little bit.” Defendant pushed him up against the truck after the son had yelled at him. When asked if he remembered defendant grabbing him by the throat, the son responded that defendant “[j]ust pushed me up on my neck.” Shortly after that, defendant tripped or fell and Lisa and Mrs. Powell attempted to intervene.
Paul testified that after this altercation he just wanted to leave and tried to get his sister to leave with him. Lisa, however, was on the phone in the Morton building with the 911 dispatcher. Paul also asked his mother if she wanted to leave with him; she said no. Paul got into his truck and started down the driveway. Paul testified about what happened next:
“Well, I was already driving down the road and he [defendant] had stepped out of the house and had a gun and he pointed it at me, or — well, not at me, but at the truck. And when I saw the gun I just ducked down and swerved. I kind of swerved at him because I figured, you know, if I swerve, you know, nothing is going to happen, I’m just going to be able to get out of there and just leave.”
Paul said defendant was about 10 feet from the bumper of the truck when this happened. He identified the weapon as a shotgun.
When asked why he ducked down when he saw the gun “pointed at [him],” Paul replied, “Just the gun, I mean, to me, that was insignificant. I had just ducked.” When asked what he was feeling when “this gun was pointed at [him],” Paul replied, “That I needed to get out of there. Basically, just, you know, just to get out of there because he was mad and I was mad and I just — that’s, basically, all I was thinking, that I had to get out of there.” When asked if he was scared, Paul replied, “Not really. Not real scared, but I was— I was very upset.” When asked if he thought his father was going to shoot him, Paul responded, “Not really.”
When asked on redirect what he would normally think if a person pointed a gun at him, Paul responded, “I believe I would normally think that the person was either trying to rob you or show— I don’t know. Do whatever you’re going to do. Rob you or threaten you with a gun.” Paul testified that no one else was in the truck with him when defendant pointed the gun.
Paul said when he left the scene he decided to stop at his aunt and uncle’s house and tell them what had happened. Paul was crying and upset. Paul explained that he was emotionally upset because he and his father had never argued before.
Paul agreed that his statement to law enforcement officers, given immediately after the incident, conflicted with his testimony at the preliminary hearing. Paul did not remember telling the deputy that he thought defendant was going to shoot him, adding, “But if I did, you know, I don’t feel that he was going to shoot me now, now that I sit back and think about it.” He explained further when questioned about ducking: “I don’t think he was going to, I can say now, because I think now that he isn’t, now that he was — he wasn’t planning on it. That’s all that I guess I can say.” Paul denied that any shots were fired from the gun.
LISA’S TESTIMONY
Lisa testified that she saw her father yelling at her mother about the furniture but did not see him hit her. When Lisa turned around at some later point she saw her brother and father fighting. She called 911. Lisa said she did not remember telling the deputy that the altercation started when defendant hit Mrs. Powell.
While she was on the phone with the dispatcher, Lisa saw her father come out of the house with a gun. She was not sure what happened next. Defendant stood in the driveway with the gun. When asked if she saw defendant point the gun at her brother, Lisa replied,
“I saw it in the air. I’m not sure. You cant tell from the distance that I was what he was aiming at. It was — it was up like this, the way that, I guess, you would normally carry a gun. You don’t carry it like that, or like that. Like this. I don’t know. He just had it in his hands like this.”
On cross-examination, Lisa denied hearing any gunshots. Lisa remembered the dispatcher asking her if there was a gunshot, but she did not remember what she told him. Lisa said she was hysterical on the telephone because when defendant came out with a gun she was scared. Lisa testified that her written statement, given right after the incident, was true and correct.
OTHER TESTIMONY
The dispatcher receiving the 911 call stated he heard two gunshots during the call. After the officers arrived, defendant called the Salina Police Department. Another dispatcher on duty testified he asked defendant “what was going on out there,” and defendant responded he guessed that they needed to talk to him. Defendant said he did not shoot at his son but “he was trying to scare him.” The dispatcher then told defendant that deputies were outside and he should go outside with his hands on his head.
The State attempted to introduce evidence of a silver nitrate test performed on defendant’s hands on the night in question to test for a residue of gunpowder. The court refused to admit the evidence on the strange ground that whether or not defendant had fired a gun during the incident was irrelevant to preliminary examination. The defendant offered no evidence.
JUDICIAL RULING
The district court ruled from the bench, as follows:
"I have no doubt in [that] the Court’s ready to give its ruling with regards to Count 1 on the aggravated assault violation of K.S.A. 21-3410, that some type of altercation took place at 4121 North Niles Road, but the victim in this case, Paul Conrad Powell, whether he's telling the truth now or whether he was telling the truth then, definitely states under oath today that he was not in reasonable apprehension of immediate bodily harm regardless of whether or not Paul Conrad Powell, Senior was holding a weapon or not. That element being missing, the Court has no recourse but to find that the State has failed for the puiposes of preliminary examination to meet one of the essential elements and the Court finds that no crime has been committed with regards to the charge that is before the Court today.”
DISCUSSION
K.S.A. 21-3410(a) provides “[aggravated assault is an assault, as defined in K.S.A. 21-3408 and amendments thereto, committed . . . [w]ith a deadly weapon.” Assault, as defined in K.S.A. 21-3408, is “intentionally placing another person in reasonable apprehension of immediate bodily harm.”
The district court dismissed the complaint finding there was no probable cause to believe that aggravated assault had been committed. Specifically, because Paul had testified that he was “not real scared” by his father s conduct with the gun, the district court did not believe the State had presented evidence on all the elements of aggravated assault.
The State argues that the district court ignored the evidence. Paul’s actions on the evening of the altercation showed he was in apprehension of immediate bodily harm. According to the State, the evidence presented at the preliminary hearing indicated that .Paul ducked and swerved when he saw his father point the gun at him and fire two shots from a distance of about 10 feet. Such apprehension was a reasonable response to the circumstances.
Defendant contends that the State completely ignores Paul’s testimony. Specifically, defendant contends that Paul “consistently testified that he was not frightened nor was he in reasonable apprehension of bodily harm.”
The parties to this appeal each rely on State v. Nelson, 224 Kan. 95, 577 P.2d 1178 (1978), for support of their respective positions.
In Nelson, the defendant was convicted of aggravated assault with a deadly weapon (K.S.A. 21-3410[a]). The defendant fired a revolver three times at a passing car which James Smith, defendant’s boyfriend, was driving, hitting the car three times. Smith was in the car with a woman. Smith stopped the car, got out, and started walking toward the defendant. An officer at the scene approached the defendant from the opposite direction. The defendant ñred a fourth shot in Smith’s direction. Smith and the officer converged on the defendant; Smith reached her first and struggled for the gun; the gun discharged a fifth time into the pavement. Defendant was arrested at the scene. Defendant was hysterical and screaming, saying she was in love with Smith but was going to kill him. 224 Kan. at 95-96.
At trial, Smith was subpoenaed as a witness but failed to appear. Defendant was found guilty. Her conviction rested entirely on the testimony of the officer at the scene. Smith’s actions, as described by the officer, indicated a lack of fear for his (Smith’s) own safety. On appeal, defendant contended that there was no evidence presented to prove that Smith was placed in immediate apprehension of bodily harm. 224 Kan. at 96.
We rejected Nelson’s argument, holding:
“There can be little doubt an attempt to do bodily harm was coupled with the apparent ability to injure Smith. Even though the defendant fired wide of the mark on all five occasions we believe questions as to her intention and his fear of bodily harm were properly left to the jury. See State v. Clanton, 219 Kan. 531, 548 P.2d 768 (1976), and Gornick v. United States, 320 F.2d 325 (10th Cir. 1963). The elements necessary to establish a crime may be proved by circumstantial evidence. See State v. Wilkins, 215 Kan. 145, Syl. ¶ 4, 523 P.2d 728 (1974), and State v. Colbert, 221 Kan. 203, Syl. ¶ 2, 557 P.2d 1235 (1976).” 224 Kan. at 96.
Here, the State contends that, like Nelson, circumstantial evidence was presented and the question was one that should have been properly submitted to a jury. On the other hand, defendant contends that the State’s reliance on Nelson is misplaced. Specifically, in Nelson, four shots were actually fired in the direction of the victim and this evidence, coupled with the officer’s testimony, established the element of reasonable apprehension of immediate bodily harm by circumstantial evidence. In this case, defendant argues, his son’s testimony at the hearing should be controlling on this element as he was the alleged victim and his testimony did not support binding defendant over for trial.
It should be noted that Nelson is distinguishable in that it is based on an appeal from a conviction. This case before us involves an appeal from the dismissal of a complaint. When the sufficiency of the evidence supporting a conviction 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, 425, 940 P.2d 27 (1997). However, as previously stated, when the State appeals the district court’s dismissal of a complaint, we conduct a de novo review searching for evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. Thus, the State need only present evidence of probable cause; evidence to support guilt beyond a reasonable doubt is not required.
Notwithstanding the significant differences in the applicable standards of review, the facts in Nelson are similar to those herein. In both cases, the apparent victim of the aggravated assault either did not testify or gave testimony minimizing or negating feeling immediate apprehension of bodily harm. In both cases, the State presented circumstantial evidence to support a conclusion that the victim was in immediate apprehension of bodily harm. Here, the 911 caller, defendant’s daughter, Lisa, indicated that a gun had been fired. The dispatcher heard two shots. Additionally, Lisa gave a written statement indicating that defendant had pointed a rifle at her brother. Another dispatcher testified that defendant told him he was trying to scare his son. Finally, the son testified he ducked and swerved when he saw defendant pointing the gun at the truck which he was driving.
Defendant contends that the district court’s dismissal was consistent with this court’s holding in State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974). There, the defendant was convicted of aggravated battery against his wife and aggravated assault upon his mother-in-law. Defendant’s mother-in-law was holding defendant’s infant when he took a gun off the wall and pointed it at her. On appeal, Warbritton argued that the evidence was insufficient to establish aggravated assault. 215 Kan. at 534-35.
At trial, defendant’s mother-in-law testified that she did not fear for her own safety and that she did not think the defendant would hurt her. She said she knew because of the way she was holding the baby he would hit it instead of herself if he pulled the trigger. We held that “[i]n the face of positive testimony such as this we cannot say, as urged by the district attorney, that the circumstances were such that, as a matter of law, Mrs. Bailey had fear for herself.” 215 Kan. at 538. Defendant’s conviction for aggravated assault was reversed. 215 Kan. at 538. As the opinion does not discuss relevant circumstantial evidence, we must assume there was none.
Again, Warbritton is distinguishable because it was an appeal of a conviction, not an appeal of the dismissal of a complaint. Accordingly, a far stricter standard of review is required when determining a sufficiency of evidence question.
In the case before us both siblings testified at the preliminary examination. Each downplayed the severity of the incident as opposed to their actions and statements at the time the events were transpiring. This is certainly not uncommon where charges arising from domestic disturbances come before a court. Family members often draw together to minimize the incident.
A somewhat similar situation occurred in State v. Whittington, 260 Kan. 873, 926 P.2d 237 (1996). There, Whittington’s wife, Judy, became angry with him at a party. Whittington got into his vehicle and at one point drove forward and knocked Judy to the ground. Whittington was charged with aggravated battery. An officer at the scene interviewed Judy and other people at the party. Whittington told the officer they had had a “ ‘domestic’ dispute,” and Judy had told Whittington he should leave. Judy said as he was attempting to leave, she stepped in front of the Blazer and he drove forward to scare her.
At the preliminaiy examination, the State called Judy, the officer, and two other guests at the party. Judy testified that the vehicle was on wet grass and skidded when it hit her because Whittington had tried to stop before he slid into her. One witness testified that she thought Whittington was only trying to scare Judy although she did not hear anything that sounded like braking before Judy was hit. One witness testified that Judy ran in front of the vehicle and it slid about a foot before it struck Judy. This witness did not think Whittington deliberately hit Judy. After both sides had presented evidence, the district court judge recalled Judy and asked her if she was “ ‘not real’ excited about having her husband charged with a felony.” 260 Kan. at 875. She answered that she was not. The district court dismissed the complaint finding that such a felony prosecution would have “ ‘a very disruptive effect on a marital relationship.’ ” 260 Kan. at 876.
We reversed, holding: “When there is a conflict in testimony at the preliminary examination, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution. [Citation omitted.]” 260 Kan. at 877. The testimony about Whittington’s movements in and out of the vehicle was conflicting and, while there was no direct testimony that Whittington was acting in a rude, insulting, or angry manner when his vehicle hit Judy, the movement of the vehicle suggested that he may have been so acting. When viewed in a light most favorable to the State, the evidence was sufficient to bind Whittington over for trial. Further, citing State v. Puckett, 240 Kan. 393, Syl. ¶¶ 4, 5, 729 P.2d 458 (1986), we reiterated that a criminal action is between the State and the accused, and the wishes and actions of the victim do not control whether a prosecution should be pursued. When the State has established the necessary probable cause at a preliminary examination, it is the duty of the judge to bind the defendant over for prosecution regardless of the wishes of the alleged victim or the personal assessment of the judge as to the merits of the action. Whittington, 260 Kan. at 879.
The district court had a duty to consider more than the son’s testimony at the preliminary examination. Drawing all inferences favorable to the prosecution from the evidence presented, as is required, we conclude the evidence is sufficient to support a finding of probable cause that the defendant committed the offense of aggravated assault as charged herein. The district court erred in refusing to bind the defendant over on aggravated assault.
The case is reversed and remanded to reinstate the aggravated assault charge against the defendant and for further proceedings in conformity with this opinion.
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The opinion of the court was delivered by
Davis, J.:
This case comes before us on defendant’s petition for review of his conviction for sale of cocaine. He argued before the Court of Appeals that his Sixth Amendment right to effective assistance of counsel was violated because of his trial counsel’s conflict of interest. The Court of Appeals acknowledged that a conflict of interest existed and that there had been no waiver of the conflict of interest by the defendant. However, the Court of Appeals ruled that the defendant had failed to establish that the conflict adversely affected his attorney’s performance and affirmed. For the reasons set forth below, we conclude that the defendant was denied his Sixth Amendment right to effective assistance of counsel because of his trial counsel’s conflict of interest.
Walter L. Jenkins was charged with one count of sale of cocaine in connection with an incident which occurred on July 19, 1992. Tracy Mouser, to whom Jenkins allegedly sold cocaine, was work ing as an informant for the Liberal Police Department, making controlled buys of illegal substances. In exchange for making these controlled buys, the Liberal Police Department promised not to bring a previous charge of sale of cocaine against Mouser.
On the night in question, Mouser contacted Detective John Schnoor and told him that he would attempt to buy cocaine from the defendant. Prior to the buy, Schnoor strip-searched Mouser, placed a recording device on him, and gave him $40 to buy a rock of cocaine. Schnoor also searched Mouseds vehicle to determine that there was no cocaine present. Schnoor then followed Mouser to the defendant’s house.
Schnoor saw Mouser walk up to the front door. Schnoor then drove down the block, made a U-tum, and parked just south of the house. When Mouser emerged from the house, he followed Mouser from the house back to the police training center, where Mouser gave him a rock later identified to be cocaine and a tape recording of the transaction.
Linda Trigg was appointed to represent the defendant. At the preliminary hearing, Trigg became concerned about the appearance of a possible conflict of interest because she had previously represented Mouser on unrelated charges based on events that had occurred during the time he was working as a confidential informant. Trigg asked to voir dire Mouser, and the following exchange took place:
“[Trigg]: And you’re currently incarcerated with the secretary of corrections on some burglary charges in which I was your attorney, is that correct?
“[Mouser]: Yes.
“[Trigg]: Those charges that you were convicted of with regard to the U-Pump-It burglaries, those — that activity occurred during the time that you were working as a confidential informant for the Liberal Police Department, is that correct?
“[Mouser]: Yes.
“[Trigg]: And I represented you at that time and was informed by the Liberal Police Department and by you that you had been working as a confidential informant, so I knew. And I discussed with you the possibility that I may be representing — appointed to represent some of the people that you were going to — that you had made buys from allegedly, is that correct?
“[Mouser]: Yes.
“[Trigg]: And we discussed at that time that if I did that, I would be completely finished representing you as far as any deal you had with the police department or the county attorney, is that correct?
“[Mouser]: Yes.
“[Trigg]: You had, in essence made your deals with the county attorney. You have held up your end of them, and the county attorney’s held up his end of them, is that correct?
“[Mouser]: Yes.
“[Trigg]: Do you believe that I can — How am I going to put this? Do you think there’s any way I can hurt you or help you at this time, given that you’ve already made your deals with the county?
“[Mouser]: No.
“[Trigg]: And do you have any objection to me representing people who are essentially on the other side of cases you’re going to be testifying in?
“[Mouser]: No.
“[Trigg]: That meets with your approval?
“[Mouser]: Yes.”
Trigg then addressed the court, saying, “Your Honor, for the record, I would state that I have discussed this with my client here today, Mr. Jenkins. And I would just ask him, Mr. Jenkins, you were aware of the fact that I had represented Mr. Mouser at an earlier date?” After Jenkins stated that he was aware of that fact, Trigg asked, “And are you willing to go forward with me as your attorney in this case?” to which Jenkins answered, “Yes.”
Trigg represented Mouser on a burglary case which had occurred during the time Mouser was working as a confidential informant. She represented him at his plea hearing on October 2, 1992, wherein he pled guilty to two counts of burglary. She also represented him at sentencing on December 16, 1992. Trigg was appointed to represent the defendant on February 26, 1993. She represented the defendant at his prehminaiy hearing at which Mouser testified on March 31,1993. She then represented Mouser on his motion to modify sentence, which motion was heard by the court on April 27,1993. Trigg continued her representation of the defendant during his trial on September 29, 1993.
On the day of trial, the defendant requested a continuance because one of his alibi witnesses, his cousin Houston White, was unavailable to testify. According to Trigg, White lives in Little Rock, Arkansas, and she was unable to contact him until that morning. However, White was in Kansas City on business that day and could not testify. Trigg stated that White had told her he could make himself available to testify if she could obtain a continuance. Trigg also offered an affidavit in accordance with K.S.A. 60-240(c) which stated that, because of White’s employment as a circuit minister and salesman, she had been unable to contact him. The affidavit proffered that if allowed to testify, White would testify that defendant was in Arkansas on July 19 and could not have sold cocaine to Mouser.
The district court denied the request for continuance. The court further found insufficient evidence to show the unavailability of White and efforts to compel his attendance and, therefore, denied the admission of the affidavit under K.S.A. 60-240(c).
At trial, Mouser testified that he was a cocaine addict with a prior record for burglary and driving while his license was suspended, as well as a charge of burglary which had occurred during the time he was working as a confidential informant. Mouser also testified that he was currently in the county jail on the burglary charge.
According to Mouser, he purchased $40 worth of cocaine from the defendant on July 19, but he, the defendant, and some others smoked some of the cocaine before Mouser left the defendant’s house.
On cross-examination, Trigg questioned Mouser concerning the presence of other people in die house. Mouser admitted that he made a mistake during the preliminary hearing when he had testified that the defendant, a man named Darrel Brown, a woman, and two other males whom he did not know were present at the defendant’s house. Mouser also admitted that he used controlled substances during the time he worked as a confidential informant and that his association with the Liberal Police Department came to an end when he was arrested on a burglary charge. Mouser testified that he pled guilty to every burglary charge that had been filed against him.
The State also introduced the tape of the transaction made by Mouser. The only witness to identify the voice of the defendant on the tape was Mouser. The tape is not part of the record.
The defendant presented an alibi defense. According to the defendant, he and his brother had driven to Little Rock, Arkansas, on July 18 to celebrate his birthday. They did not return until July 22. The defendant stated that he recognized the voices of Darrel Brown and Lynn Ray Bowie on the tape as the persons selling the cocaine. Brown was a roommate of the defendant at the time. The defendant’s brother, Anthony Ray Jenkins, corroborated the alibi.
The State called Raul Gomez in rebuttal to the defendant’s alibi defense. Gomez testified that he was with the defendant at his residence on July 19. However, Gomez also admitted he was a drug user and had worked as an informant for the Liberal Police Department.
The jury convicted the defendant of sale of cocaine. The Court of Appeals, in an unpublished opinion, found that the defendant had clearly shown a conflict of interest, that the defendant had not waived the conflict, and that the conflict did not adversely affect defense counsel’s performance. (State v. Jenkins, No. 70,958, unpublished Court of Appeals opinion, filed October 28, 1994). On the issue of whether die district court erred in not allowing a continuance, the Court of Appeals found no abuse of discretion and so affirmed die defendant’s conviction and sentence.
Jenkins argues that his Sixth Amendment right to effective assistance of counsel was denied because his counsel at trial was also representing Tracy Mouser, the State’s primary witness against him, in an unrelated case. The Kansas Association of Criminal Defense Lawyers filed an amicus curiae brief arguing that there was an actual conflict of interest requiring reversal. The State did not file a brief before this court, nor did the State present an argument before this court.
INEFFECTIVE ASSISTANCE OF COUNSEHCONFLICT OF INTEREST
The defendant raised the issue of ineffective assistance of counsel for the first time before the Court of Appeals. In State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986), this court held that an allegation of ineffective assistance of counsel may not be considered for the first time on appeal. Instead, we said that the issue, factual in nature, should be raised by a K.S.A. 60-1507 motion or through a request to remand the issue to the district court for hearing. 239 Kan. at 119-20.
The Court of Appeals acknowledged our holding in Van Cleave but determined that remand was unnecessary because the defendant had failed to present evidence warranting a new trial. The claim of ineffective assistance of counsel usually arises from a defendant’s contention that his counsel’s performance at trial was deficient and deprived the defendant of a fair trial. When such a claim is raised for the first time on appeal, the record does not permit appellate review. The question raised usually involves a factual as well as legal determination. Generally, it is appropriate to obtain a response from the defense counsel concerning the allegation of ineffective assistance. Without additional evidence and without a trial court determination upon a hearing, an appellate court is in no position to resolve the issue.
This case involves a claim of ineffective assistance of counsel but is based on the defendant’s contention that a conflict of interest prevented his counsel from providing effective assistance. We have considered the record in this case and determine that all facts necessary for resolution of the issue are contained in the record. Under these circumstances, remand would serve no useful purpose. We, therefore, proceed to the question of whether the defendant’s Sixth Amendment right to effective assistance of counsel was violated.
We need not pause too long on the question of whether there was a conflict of interest for defense counsel in this case. Counsel represented the defendant on the charge of selling of cocaine and also represented a key prosecution witness against defendant on an unrelated burglary charge which took place during the same time period as the defendant’s alleged offense. Credibility was a critical factor in the defendant’s trial. Was the jury to believe the defendant and his alibi or was it to believe the prosecution’s key witness — the witness who, as an informant for police, bought the cocaine from the defendant? The record established that counsel was involved in an attorney-client relationship with the defendant and the key prosecution witness and was representing both during the trial of the defendant.
The Court of Appeals determined that an actual conflict of interest existed and that the evidence of record did not establish that the defendant waived this conflict of interest. We agree with these conclusions. The Court of Appeals also concluded that the defendant’s conviction should be affirmed because there was no showing that the conflict of interest adversely affected his attorney’s performance. We disagree and, for the reasons set forth below, reverse the defendant’s conviction and remand for a new trial.
The United States Supreme Court, in two significant cases, has addressed the question of counsel conflict and the Sixth Amendment right of an accused to effective assistance of counsel. The approaches taken by these two cases are divergent and dependent upon the extent to which the alleged conflict was brought to the attention of the trial court. See U.S. v. Cook, 45 F.3d 388, 393 (10th Cir. 1995).
In the case of Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), three codefendants made timely motions, both a few weeks before the trial and again before the jury was empaneled, for appointment of separate counsel based on their appointed counsel’s representations that because of confidential information received from a codefendant, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed. Certiorari was granted to decide whether the denial of the motions deprived petitioners of the effective assistance of counsel. 435 U.S. at 477.
After discussing the real difficulty of counsel in attempting to represent three defendants, one of whom confessed to the robbery that all the defendants were charged with but denied any part in the two rapes all the defendants were charged with, Holloway held that:
“[T]he failure, [of the trial judge to either appoint separate counsel or to take steps to ascertain whether the risk of conflict was too remote] in the face of the representations made by counsel weeks before trial and again before the juiy was empaneled, deprived petitioners of the guarantee of ‘assistance of counsel.’ ” 435 U.S. at 484.
The Court also noted that the trial judge has a duty of seeing that the trial is conducted with solicitude for the essential rights of the accused and a duty to protect the rights of the accused to have the effective assistance of counsel. Relying on its case of Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), Holloway concluded that whenever a trial court improperly requires joint representation over timely objection, reversal is automatic. 435 U.S. at 488.
By way of explanation of its departure from the general rule that in the case where a claim of ineffective assistance of counsel is made, a defendant must establish prejudice in order to prevail, Holloway states:
“Moreover, this Court has concluded that the assistance of counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ [Citation omitted.]
“Finally, a rule requiring a defendant to show that a conflict of interests — which he and his counsel tried to avoid by timely objections to the joint representation— prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. [Citations omitted.] But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” 435 U.S. at 489-91.
Two years after Holloway, the Supreme Court decided the case of Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). Unlike Holloway, the possible conflict of interest for counsel in Cuyler was not brought to the trial court’s attention. Cuyler also involved multiple representations where two privately retained lawyers represented three criminal defendants charged with first-degree murder. All the defendants were tried separately. The first defendant to come to trial was found guilty on the basis of circumstantial evidence after the defendant rested without presenting any evidence. The other two codefendants were acquitted. The first defendant alleged that he had been denied effective assistance of counsel because his defense lawyers represented conflicting interests. At a hearing on this issue one of the lawyers testified that concern for the other two codefendants had influenced his judgment not to present a defense. The Pennsylvania Supreme Court affirmed the conviction by an equally divided court; on certiorari the Supreme Court vacated and remanded. In establishing the standard to be applied to cases in which the potential conflict is not brought to the trial court's attention, the Court held:
“Holloway requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. . . . Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. . . . Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” 446 U.S. at 346-47.
The Court held:
“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. ...
“Glasser established that unconstitutional multiple representation is never harmless error. . . . Thus a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. [Citation omitted.] But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” 446 U.S. at 348-50.
Thus, when a possible conflict exists, but the trial court is not advised of the possibility, the limited presumption set forth in Cuyler applies, and the defendant, in order to establish a violation of his Sixth Amendment right to the effective assistance of counsel, must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. See Cuyler, 446 U.S. at 348. On the other hand, we hold that where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. In this instance, a showing that there is an actual conflict of interest will result in automatic reversal. See Holloway, 435 U.S. at 489. Prejudice to the defendant is presumed, and reversal of the defendant’s conviction is automatic.
Under Cuyler, in the face of a silent record, where the defendant makes no objection before the trial court, the possibility of a conflict of interest is not sufficient to impugn a criminal conviction. 446 U.S. at 348-50. The defendant must show that “counsel actively represented conflicting interests” and that the “conflict of interest adversely affected his lawyer’s performance.” Once an actual conflict and an adverse effect are shown, a defendant “need not demonstrate prejudice in order to obtain relief.” 446 U.S. at 349-50.
The above cases involve multiple representation but apply in any situation where there is a possibility defense counsel suffers from any sort of conflict of interest. The trial court has an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment. Wheat v. United States, 486 U.S. 153, 161, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).
We have had occasion to apply Holloway. In State v. Lem’Mons, 238 Kan. 1, 9-10, 705 P.2d 552 (1985), when confronted with a case in which two codefendants were represented by attorneys from the same firm, we did not require a showing that an actual conflict of interest adversely affected each defendant’s lawyer’s performance, even though the State, not the defendant, objected. Instead, we noted that the State had brought the matter to the trial court’s attention, and we commented: ‘We do not understand why the trial court did not take up the State’s motion and hold an in-depth hearing on the question of conflict of interest.” 238 Kan. at 9. In response to the State’s argument on appeal that the defendant had failed to show prejudice, we stated:
“This court simply cannot accept that position. The courts of Kansas have an obligation to protect the rights of a person charged with a criminal offense and see that such a person is afforded a fair trial. In the case now before us, the representation of the defendant Lem’Mons by Marian Bums constituted a conflict of interest clearly in violation of DR 5-105, Kansas Code of Professional Responsibility; 1 ABA Standards for Criminal Justice, The Defense Function, § 3.5(b); and the basic concepts contained in the decisions of this court and the United States Supreme Court discussed in the opinion. The defendant is entitled to a new trial where he must be represented by counsel not subject to a conflict of interest.” 238 Kan. at 9-10.
We also addressed the question of conflict of interest in a case involving a similar conflict to the one we now consider. In In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 781 P.2d 731 (1989), cert. denied 494 U.S. 1070 (1990), Hoang was represented by Mr. Ney of the Public Defender’s Office. Mr. Ney discovered that his office had represented Binh Van Tran, who was a key prosecution witness against Hoang. Ney advised the prosecutor, who made a motion in limine to prohibit defense counsel from bringing out the prior representation. The trial court was alerted immediately after opening statements that a possible conflict of interest existed with defense counsel. Soon thereafter the prosecutor objected to the representation, and the court held that a conflict of interest existed, disqualified Ney as defense counsel, and declared a mistrial. New counsel then filed a motion seeking dismissal of the charges on the grounds that the mistrial had been granted improperly and that a trial would result in Hoang being twice placed in jeopardy contrary to the Fifth Amendment of the United States Constitution. We held that the trial court had properly disqualified counsel based upon a conflict of interest and properly declared a mistrial. In discussing the question of conflict of interest, we said;
"If a defense attorney’s scope of cross-examination of a key prosecution witness is restricted to avoid possible violation of the attorney-client privileges of the witness, then the defendant has major claims of ineffective assistance of counsel and lack of a fair trial. If the examination is not restricted, then the witness’ attorney-client privilege may be violated. It is a significant public policy that individuals be free to disclose confidential information to their attorneys without fear of subsequent examination on and disclosure of those communications. The judge has a duty to maintain the integrity of the administration of the justice system.” 245 Kan. at 562.
The question remains whether this case is governed by Holloway or by Cuyler. The defendant and amicus curiae argue that at the preliminary hearing the trial court was put on notice by defense counsel’s questioning of Mouser concerning a possible conflict. Defense counsel made it clear that she had previously represented a key prosecution witness against the defendant, whom she was also representing. Under these circumstances, notwithstanding the lack of an objection by defense or prosecution, the defendant and amicus curiae assert that the trial court had a duty to inquire under Holloway.
The resolution of this question is not an easy one. In Holloway, as well as in Lem’Mons, there was an objection lodged on the question of a conflict of interest. The objection alerts the trial court as to a possible conflict of interest that may affect the defendant’s Sixth Amendment right to effective assistance of counsel. Based upon the objection, the court knows or should know that a potential problem exists and is therefore under a duty to inquire. However, in this case, no objection by either party was made. In Cuyler, the Supreme Court said:
“Holloway requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” 446 U.S. at 346-47.
Cuyler also states “Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” 446 U.S. at 347.
In this case, even without the benefit of an objection by counsel, we believe that Holloway controls because of the following special circumstances. The case we deal with is not a case of multiple representation where one attorney represents more than one defendant charged with the same crime. In such a case, the possibility of a conflict exists, but the multiple representation may not present any conflict depending on the facts of each case. Without an objection, the trial court is in no position to know that a particular conflict exists. However, in this case, the trial court was presented with information that established an actual conflict — defense counsel represented the key prosecution witness. Further, the crime for which defense counsel represented the key prosecution witness occurred during the time the witness was acting as a confidential informant for the State in the drug transaction involved in this case. It was readily apparent that confidential information in one case would be relevant in the other case. Thus, the court knew that an actual conflict existed.
Moreover, while statements made at the preliminary hearing suggested that the defendant and counsel may have discussed the matter of conflict before the hearing, nothing of record established that the defendant waived the conflict of interest. The court was put on notice that a conflict of interest existed and that the defendant had not waived the conflict on the record. Under these circumstances, given the obligation of the trial court to protect the defendant’s right to a fair trial and the information available to the court from the defense counsel, we conclude that the rule established in Holloway, rather than the rule established in Cuyler, applies and that the trial court had an obligation to inquire further into the conflict of interest. Because the trial court failed to do so, the defendant’s conviction must be reversed.
Under the rule established by the United States Supreme Court in Holloway and applied by this court in Lem’Mons, based on the actual conflict of interest present in this case, the trial court’s knowledge of the conflict, and its knowledge that the conflict had not been waived, the defendant’s conviction must be reversed. Contrary to the decision of the Court of Appeals, we conclude that under the special circumstances present in this case, the defendant need not show that his defense counsel’s conflict of interest adversely affected the counsel’s performance.
Furthermore, we conclude that application of Cuyler would also require reversal of the defendant’s conviction. Under Cuyler, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s per formance. The record establishes such an adverse effect. Mouser admitted that he ingested rock cocaine at the time he sold the cocaine to the defendant. Yet, defense counsel asked no questions concerning the effect the drug had on him or how the drug may have altered his perceptions or his memories or his ability to accurately recall the events or the date the events occurred. Counsel did not question Mouser regarding his admitted addiction to cocaine or to what lengths Mouse might go to obtain drugs or the money necessary to buy drugs for himself. The evidence at trial did establish that Mouser received money from the police each time he made a sale.
While Cuyler does not discuss what is required to show that a conflict of interest “adversely affected” the performance of counsel, it is clear that this standard is a lesser burden than that necessary to establish prejudice under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief because the conflict itself demonstrates a denial of the right to have the effective assistance of counsel. Cuyler, 446 U.S. at 349. Under the facts of this case, we conclude that the defendant has shown that defense counsel's conflict of interest adversely affected her performance. Nothing more is required under Cuyler.
Our resolution of these issues does not require us to address the defendant's separate contention concerning whether the district court erred in failing to grant a continuance.
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The opinion of the court was delivered by
Davis, J.:
This appeal involves a motion to disqualify counsel under Model Rules of Professional Conduct (MRPC) 1.9(a) (1994 Kan. Ct. R. Annot. 320) and counsel’s firm under MRPC 1.10(b) (1994 Kan. Ct. R. Annot. 321) (imputed disqualification) based on a claimed conflict of interest. After a hearing, the trial court concluded that there was no conflict for counsel and, therefore, denied the motion to disqualify counsel and the firm. Both issues are preserved in this interlocutory appeal.
Christopher Christian was a member of the firm of Turner and Boisseau, Chartered, from 1991 to 1993. During this time, he, along with Eldon Boisseau, represented Coastal Refining and Marketing, Inc., in several cases involving pipeline leakage or spills. In September 1993, Christian left Turner and Boisseau and began working for the firm of Michaud, Hutton, Fisher & Andersen (Michaud firm). In November 1993, the Michaud firm, with Christian signing the petition on behalf of plaintiffs Eldon Chrispens, et al, (Chrispens), filed an action against Coastal Refining and Marketing, Inc., (Coastal) alleging that its clients were injured by substances that leaked from a pipeline owned by Coastal.
Before any discovery, Coastal filed a motion to disqualify Christian pursuant to MRPC 1.9(a), and to disqualify the Michaud firm pursuant to MRPC 1.10(b). After an evidentiary hearing with testimony from Eldon Boisseau and Debra Broussard, Coastal’s in-house counsel, the trial court determined that the Coastal cases upon which Christian worked when a member of the firm of Turner and Boisseau were not substantially related to the case in which Christian, as a member of the Michaud firm, now brought suit against Coastal. The court held that in the absence of a substantial relationship between the cases, MRPC 1.9(a) did not prevent Christian from suing his former client, Coastal. Based on its decision of no personal conflict, the question of imputed disqualification of the Michaud firm was resolved against Coastal. Additional facts involving the alleged conflict of interest are set forth below.
JURISDICTION
Before we begin our discussion of the merits, we must first address Chrispens’ contention that this court is without jurisdiction. Chrispens contends that this is an interlocutory appeal and “because no controlling question of law will be resolved” the case is not ripe for appellate consideration. Chrispens relies on the case of Clemence v. Clemence, 8 Kan. App. 2d 377, 378, 658 P.2d 368 (1983), wherein the Court of Appeals held that a ruling denying a motion to disqualify counsel is interlocutory in nature because it may be effectively reviewed on appeal of any final judgment.
Clemence is correct in its holding that an order refusing to disqualify counsel is interlocutory and not a final order which may be appealed as a matter of right. Unlike Clemence, Coastal applied under K.S.A. 60-2102(b) for permission to take an interlocutory appeal. The trial court made the requisite findings and entered a proper order. We considered the findings of the trial court and accepted the appeal. We have jurisdiction to hear this case.
RULES
The Model Rules of Professional Conduct adopted by the House of Delegates of the American Bar Association on August 2, 1983, were adopted in 1988 by this court as general standards of conduct and practice required of the legal profession in Kansas. Rule 226 (1994 Kan. Ct. R. Annot. 286). It should be noted that both of the rules we deal with in this opinion have been modified by 1989 ABA revisions to Model Rules 1.9 and 1.10. For a discussion of the amendments, see ABA/BNA Lawyers’ Manual On Professional Conduct, 51:2002; 1 Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.10:208 (2d ed. 1990). As pointed out by the manual on professional conduct: “Under the [1989] version of Model Rule 1.10, reference must first be made to Model Rule 1.9(b) to determine whether an individual lawyer who switches private law firms is personally disqualified due to a conflict with a former client of the former firm. If [the attorney] is, then, under Model Rule 1.10(a) the entire new law firm also is disqualified.” ABA/BNA Lawyers’ Manual On Professional Conduct, 51:2002.
Kansas, along with several other states, operates under the pre1989 form of Model Rules 1.9 and 1.10. While there maybe some differences in application of the pre- and post-1989 rules, the questions for resolution in this area remain essentially the same and involve in the first instance a determination of whether the cases in which conflicts are alleged are substantially related. Our discussion deals with the current Kansas rules, and we do not discuss what differences may or may not exist by reason of the 1989 ABA revisions of the Model Rules.
Our discussion centers upon two rules: MRPC 1.9, Conflict of Interest: Former Client and MRPC 1.10, Imputed Disqualification: General Rule. The applicable provisions of MRPC 1.9 (a) provide:
“A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” (1994 Kan. Ct. R. Annot. 320.) (Emphasis added.)
The pertinent provisions of MRPC 1.10 provide:
“(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rule 1.6 and 1.9(b) that is material to the niatter.” (1994 Kan. Ct. R. Annot. 321-22). (Emphasis added.)
The trial court determined that there was not a substantial relationship between the previous cases Christian worked on while at Turner and Boisseau and the new case filed by Christian against his former client while working at the Michaud firm. This conclusion resulted in the court’s denial of the motion for disqualification based upon a conflict of interest. Our first inquiry, and to a large extent, the resolution of this appeal, involves a determination of what is meant by the phrase “substantially related matter” expressed in MRPC 1.9(a) and MRPC 1.10(b). We also need to address the following issues raised by the parties: (1) the burden of proof under both rules before the trial court; (2) the presumptions under both rules before the trial court; and (3) the appropriate appellate standard of review.
SUBSTANTIALLY RELATED MATTER
One noted authority has commented that gallons of ink have been consumed by those who have tried to determine or explain the test for deciding whether a .substantial relationship exists between representations. ABA/BNA Lawyers’ Manual on Professional Conduct, 51:215. There is widespread agreement that conflict questions involving former clients should be resolved through application of the substantial relationship test. However, there is no standard definition of what the test should compare in determining whether there is a close connection between the conflicting representations. ABA/BNA Lawyer’s Manual on Professional Conduct, 51:225. The Model Rules do not provide a definition, nor do the comments to the rules attempt to define the phrase “substantially related.” There is no Kansas case law addressing the meaning and application of the phrase “substantially related matters” as used in MRPC 1.9(a) and MRPC 1.10(b).,
The ABA/BNA Lawyer’s Manual on Professional Conduct, 51:225 notes:
“Perhaps the most widely followed formulation of the substantial relationship test is that it compares the ‘matter’ or ‘subject matter’ of die former representation to that of the current representation. ‘Matter’ is the word used in Model Rule 1.9(a), and this word, or the term ‘subject matter,’ is a popular means of applying the substantial relationship test.”
Three separate approaches regarding the substantial relationship test have been used throughout the country. The first approach indicates that the comparison of the former and current representations should center on the facts of each case. The second approach, advanced by the Second Circuit, insists that the inquiry should focus on legal issues and requires the issues involved in the former representation to be “identical” to or “essentially the same” as those presented in the current representation. The relationship under the second approach must be “patently clear.” Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978). This approach has not been a view widely adopted. See Nelson, Conflicts in Representation: Subsequent Representations in a World of Mega Law Firms, 6 Geo. J. Legal Ethics 1023, 1031 (1993). The third approach is set forth in the case of Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978). The Seventh Circuit blends fact and issue comparisons into a three-step substantial relationship test:
“[Disqualification questions require three levels of inquiry. Initially, the trial judge must make a factual reconstruction of the scope of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. Finally, it must be determined whether that information is relevant to the issues raised in the litigation pending against tire former client.” 588 F.2d at 225.
The substantial relationship test developed so that a determination of a conflict of interest could be made without requiring the former client to reveal what confidential information passed from client to lawyer. The following quote from T. C. & Theater Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 269 (S.D.N.Y. 1953), which did not invent the substantial relationship test but is perhaps the case responsible for popularizing it, highlights the objective of the test:
“ ‘In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the latter representation within the prohibition of Canon 6,’ the former-client conflicts rule in the ABA Canons of Professional Ethics. Whether using the Model Code or the Model Rules as their guide, courts follow the same path today.” ABA/BNA Lawyer’s Manual on Professional Conduct, 51:226-27.
Several federal cases interpreting Kansas law have dealt with the phrase “substantially related” as used in MRPC 1.9(a). In Graham v. Wyeth Laboratories, 906 F.2d 1419, 1422 (10th Cir. 1990), the Tenth Circuit noted that the term “has acquired the status of a term of art in the general law of attorney conflicts of interest,” and defined the term to mean that the “factual contexts of the two representations are similar or related.” This same definition was employed in Geisler by Geisler v. Wyeth Laboratories, 716 F. Supp. 520, 525 (D. Kan. 1989).
In Graham v. Wyeth Laboratories, 906 F.2d at 1422, the Tenth Circuit found that cases were substantially related when the actual context of the two representations were similar or related. In Koch v. Koch Industries, 798 F. Supp. 1525, 1536 (D. Kan. 1992), the United States District Court defined the term “substantially related” to mean that the cases “involve the same client and the matters or transactions in question are relevantly interconnected or reveal the client’s pattern of conduct.” Koch relies upon Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir. 1985) (quoting Trust Corp. v. Piper Aircraft Corp., 701 F.2d 85, 87 [9th Cir. 1983]); Trone v. Smith, 621 F.2d 994, 998 [9th Cir. 1980]). In Trone, the court states:
“[T]he underlying concern is the possibility, or appearance of the possibility, that the attorney may have received confidential information during the prior representation that would be relevant to the subsequent matter in which disqualification is sought. The test [under MRPC 1.9(a)] does not require the former client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure the [MRPC 1.9(a)] is intended to protect.” 621 F.2d at 999.
Each case under both MRPC 1.9(a) and MRPC 1.10(b) must be decided on its unique facts and an application of the rule to those facts. This perhaps is another way of saying that the determination of conflict under MRPC 1.9(a) and MRPC 1.10(b) must be made on a case-by-case basis with the decision to be based on the unique facts and application of the rule to facts of that case. Factors which courts have considered in making a determination under MRPC 1.9(a) and MRPC 1.10(b) include: (1) The case involved the same client and the matters or transactions in question are relevantly interconnected or reveal the client’s pattern of conduct, Koch v. Koch Industries, 789 F. Supp. 1525; (2) the lawyer had interviewed a witness who was key in both cases, Graham, 906 F.2d 1419; (3) the lawyer’s knowledge of a former client’s negotiation strategies was relevant, SLC Ltd. V v. Bradford Group West, Inc., 999 F.2d 464, 466-67 (10th Cir. 1993); (4) the commonality of witnesses, legal theories, business practices of the client, and location of the client were significant, Kaselaan & D’Angelo Associates, Inc. v. D’Angelo, 144 F.R.D. 235 (D.N.J. 1992); (5) a common subject matter, issues and causes of action existed, In re American Airlines Inc., 972 F.2d 605, 614 (5th Cir. 1992); and (6) information existed on the former client’s ability to satisfy debts and its possible defense and negotiation strategies, SLC Ltd. V, 999 F.2d 466-67. This is by no means an exhaustive list but merely reflects that the determination is oftentimes an evaluative determination by the trial court based upon the unique facts of the case. In some cases, one -factor, if significant enough, may establish that the subsequent case is substantially similar. For example, if the former representation involved defending the client on a criminal charge and the attorney is thereafter elected as a prosecutor and then seeks to prosecute the same client upon a charge connected with the prior defense, the former representation alone makes the disqualification an easy question.
On the other hand, in cases less clear, the trial court must balance the previous client’s right of confidentiality, the right of having a reasonable choice of legal counsel, and the right of lawyers to form new associations and take on new clients when leaving a previous association. See Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 808 P.2d 1369 (1991); Parker v. Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, 781 P.2d 1099 (1989). Given the mobile society we five in and the very real need to preserve professional integrity as well as the real needs of those citizens who rely upon attorneys for assistance, the balancing of the competing interests becomes very difficult at times. Both the wording of the rules involved and the somewhat elusive test of “substantially related” provide the court with an opportunity to make a circumspect decision concerning conflict of interest. We reject the narrow Second Circuit view, which requires that a substantial relationship must be patently clear and disqualification is required only when the issues involved are identical or essentially the same. See Government of India, 569 F.2d at 739-40. We adopt a rule which requires the trial court to make a determination after considering the facts surrounding the two representations.
BURDEN OF PROOF
MRPC 1.10(b)
Our previous cases of Parker v. Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, and Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, both involved imputed disqualification motions under MRPC 1.10. In Parker, disqualification was sought against an attorney who had been previously employed by a firm that represented the client being sued by another firm in which the same attorney now worked. In Lansing-Delaware, disqualification was sought against an attorney who previously had been a member of a firm that represented a client but who had since become employed by a firm that was suing that client. Parker holds that when a motion to disqualify based on MRPC 1.10(b) has been filed, the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment. Parker also states:
“The district court must determine motions for disqualification on a case-by-case basis, remembering that the burden of proof lies with the attorney or firm who is sought to be disqualified. If it is determined that the attorney gained material and confidential information during the course of his or her previous employment, then both the attorney and the firm with whom he or she is presently associated are disqualified.” (Emphasis added.) 245 Kan. at 589.
No authority is cited in Parker for its statement that the burden of proof lies with the attorney or firm who is sought to be disqualified. This proposition is also contrary to the general rule in Kansas regarding burden of proof. See Anderson, Motions to Disqualify Opposing Counsel, 30 Washburn L.J. 238, 257 (1991). However, we revisited this question and reaffirmed our position in Lansing-Delaware. 248 Kan. at 570. As noted in Lansing-Delaware, there is support for this proposition in the Comment to MRPC 1.10, which states: “Application of paragraphs (b) and (c) depends on a situation’s particular fact. In any such inquiry, the burden of proof should rest upon the firm whose disqualification is sought.” (1994 Kan. Ct. R. Annot. 324).
For purposes of MRPC 1.10(b), the party best able to bear the burden of showing that the attorney did not gain material and confidential information is the firm with whom the attorney is currently associated. We hold that, consistent with our previous holdings in Parker and Lansing-Delaware, the burden of proof under MRPC 1.10(b) rests with the party against whom imputed disqualification is alleged.
MRPC 1.9(a)
MRPC 1.9 deals with the disqualification of an individual attorney. There is no requirement under this rule as there is under MRPC 1.10(b) to establish that the attorney gained material and confidential information during the course of his or her previous employment. As stated in Koch v. Koch Industries, 798 F. Supp. at 1530-1533, disqualification under MRPC 1.9(a) is dependent upon the party moving for disqualification to establish that (1) the attorney whose disqualification is sought formerly represented them in a matter, (2) the matter is substantially related to a matter in which the attorney now seeks to represent a new client, and (3) the new client’s interest is substantially adverse to the interest of the party seeking disqualification. We hold that the burden of proof under MRPC 1.9(a) is upon the party alleging conflict and moving for disqualification. See LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, Syl. ¶ 6, 876 P.2d 184 (1994).
PRESUMPTIONS
The primary inquiry under MRPC 1.9(a) is whether the cases where conflict has been alleged are substantially related. Normally, this inquiry is made without the aid of a hearing. The reason for a hearing in this case was that Coastal sought relief not only under MRPC 1.9(a) (disqualification of Christian who had formerly represented Coastal) but also under MRPC 1.10(b) (imputed disqualification of the entire Michaud firm based upon allegations that Christian acquired material, confidential information). Parker, 245 Kan. at 589, and Lansing-Delaware, 248 Kan. at 570-72, require the court to hold a hearing when imputed disqualification is sought under MRPC 1.10(b). No such requirement exists under MRPC 1.9(a).
The question under MRPC 1.9(a) regarding presumptions is: Once a matter has been found to be substantially related under MRPC 1.9(a) and all other requirements of the rule have been satisfied, does this result in automatic disqualification of the subject attorney? Put another way, should the attorney against whom conflict is claimed be allowed to rebut with evidence that no material, confidential information was acquired? This would be allowed under MRPC 1.10(b). It is important to keep in mind that MRPC 1.10(b) requires a showing that there has been acquisition of material, confidential information.
The answer to the question posed in the last paragraph is twofold. First, if the disqualification motion is advanced solely under MRPC 1.9(a), an irrebuttable presumption arises that in cases “substantially related,” the former client revealed confidential information requiring the attorney s disqualification. Second, if the disqualification motion is advanced under MRPC 1.9(a) and MRPC 1.10(b), as in this case, the reason for an irrebuttable presumption no longer exists because we require an evidentiary hearing when imputed disqualification under MRPC 1.10(b) is sought. Under these latter circumstances, disclosure of alleged confidential information will result.
A. Proceeding Under MRPC 1.9(a)
Once it has been established that an attorney has formerly represented a client in a matter and seeks to represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client, an irrebuttable presumption arises that the attorney acquired confidential information in the former representation and is disqualified from representing the latter client. MRPC 1.9(a), by its express terms, provides that an attorney who has represented a client in a matter “shall not” represent an adverse party in the same or a substantially related matter. This is consistent with the substantial relationship test as used in the majority of jurisdictions. In Koch, the federal district court stated:
“If a substantial relationship is found, an irrebuttable presumption arises that the former client revealed facts requiring the attorney’s disqualification. [Trone v.] Smith, 757 F.2d at 1100. The court need not inquire into whether the confidential information was actually revealed or whether the attorney would be likely to use the information to the disadvantage of the former client. Green v. Montgomery County, Ala., 784 F. Supp. 841, 844 (M.D. Ala. 1992); Carlson v. Langdon, 751 P.2d 344, 348 (Wyo. 1988). To conduct such an inquiry would frustrate the former client’s interest in the confidential information. Emle Industries Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973).” 798 F. Supp. at 1536.
We believe the reasoning of Koch is sound. The reason for this irrebuttable presumption, as noted in Koch, is rooted in the idea of attorney loyalty:
“ ‘[MRPC 1.9(a)] is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide completely in their attorneys. Second, the rule is important for the maintenance of public confidence in the integrity of the bar. [Citation omitted.] Finally, and importantly, a client has a right to expect the loyalty of his attorney in the matter for which he is retained.’ ” 798 F. Supp. at 1532 (quoting In re Com Derivatives Antitrust Litigation, 748 F.2d 157, 162 [3d Cir. 1984], cert. denied 472 U.S. 1008 [1985]).
Another very important consideration under MRPC 1.9(a) is whether the attorney formerly represented the client. Even when a substantial relationship between the matters has been found to exist, the scope and the degree of representation by the attorney against whom the conflict is alleged must be considered.
This idea is best reflected in the case of Silver Chrysler Plymouth Inc. v. Chrysler Mot. Corp., 518 F.2d 751, 756-57 (2d Cir. 1975), wherein the court stated: “But there is a reason to differentiate for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery. . . . Under the latter circumstances the attorney s role cannot be considered "representation.'” 518 F.2d at 756-57.
In order for the automatic disqualification to take place under MRPC 1.9(a), there must be a showing that the attorney whose disqualification is sought actually represented the former client, not just that his or her law firm did so. This allows attorneys on the periphery of issues to avoid being cast as having represented a client when, in fact, they merely belonged to the firm. This also corresponds to the Comment to MRPC 1.9, which states: “The lawyer s involvement in the matter can also be a question of degree.” (1994 Kan. Ct. R. Annot. 320).
The trial court, when dealing solely with an MRPC 1.9(a) motion for disqualification, should not hold a hearing. To hold á hearing when disqualification is sought solely under MRPC 1.9 would be to frustrate the reason underlying the rule, which is to prevent disclosure of the confidential information the rule is designed to protect. The trial court should make the determination of whether the attorney formerly represented the client in a previous matter and whether the matters are substantially related on the basis of the record, additional documentation provided by counsel regarding the previous representation, and arguments of counsel. If the trial court determines that the matters are substantially related, an irrebuttable presumption arises that the attorney acquired material, confidential information and is disqualified under MRPC 1.9 from representing the new client against the former client.
Where a lawyer has been directly involved in a specific transaction, subsequent representation of clients with materially adverse interests in a matter substantially related to the specific transaction is prohibited. The burden upon a motion for disqualification under this rule is upon the moving party asserting the conflict. See MRPC 1.9, Comment (1994 Kan. Ct. R. Annot. 320-21).
B. Proceedings Under MRPC 1.9(a) and MRPC 1.10(b)
When motions for disqualification are advanced under MRPC 1.9(a) and MRPC 1.10(b) against the attorney and the attorney’s new firm, Parker provides that “the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment.” 245 Kan. at 589. The hearing will result in the disclosure of the very information MRPC 1.9(a) was designed to protect from disclosure. Under these circumstances, the reason for an irrebuttable presumption no longer exists. We hold that in this type of proceeding there is no longer an irrebuttable presumption and the ultimate determination of the motion to disqualify the at tomey under MRPC 1.9(a) and the firm under MRPC 1.10(b) will depend upon whether material, confidential information has been acquired by the attorney in his or her former representation. If it is established that such information has been acquired, then under Parker, 248 Kan. at 570, and Lansing-Delaware, 245 Kan. at 589, “both the attorney and the finn with whom he or she is presently associated are disqualified.” If it is established that no such information has been acquired, then neither the attorney nor the firm with whom he or she is presently associated are disqualified.
C. Proceeding under MRPC 1.10(b)
When an attorney changes firms and the disqualification of his new firm is sought, the applicable rale is MRPC 1.10(b). The attorney’s new firm is prohibited from representing a client adverse to a client which the attorney or his or her previous firm represented and about whom the attorney has acquired confidential information. MRPC 1.10(b). Under this circumstance, the rule announced in Parker, 245 Kan. at 589, is applicable:
“Where a motion to disqualify based on MRPC 1.10(b) has been filed, the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment. To support a disqualification order, the district court must make a specific factual finding that the attorney had knowledge of material and confidential information. . . .
“. . . If it is determined that the attorney gained material and confidential information during the course of his or her previous employment, then both the attorney and the firm with whom he or she is presently associated are disqualified.” 245 Kan. at 589.
The district court must determine motions for disqualification on a case-by-case basis, and the burden of proof is upon the firm sought to be disqualified. No presumption exists under MRPC 1.10. See 245 Kan. at 589; MRPC 1.10, Comment (1994 Kan. Ct. R. Annot. 323-24).
STANDARD OF REVIEW
Chrispens cites Lansing-Delaware for the proposition that when an appellate court reviews a trial court’s decision on a motion to disqualify, “[a]n appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be drawn therefrom.” 248 Kan. at 573. Chrispens then concludes that the determination of whether there is evidence of a “substantial relationship” between the representations at issue is a factual one. Numerous cases are then cited by Chrispens concerning the scope of appellate review on factual determinations by a trial court. We acknowledge that the scope of review for factual findings is a deferential one.
Chrispens argues that the determination of whether there exists a “substantial relationship” is a highly fact-specific inquiry; that the trial court in this case, based on evidence presented, made a finding that the cases were not “substantially related”; and that this determination is subject to an abuse of discretion standard. Chrispens argues that since there is substantial competent evidence of record to support this factual determination, there is no abuse of discretion and we must affirm.
In the area of disqualification of counsel under ethical rules adopted by this court, the determination of whether under given facts application of the rules to those facts requires disqualification of the attorney or firm is a question of law. As the Fifth Circuit recognized in In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992):
“Assuming arguendo that the district court made findings on these contested questions of fact, it is clear that die court was guided by a particular reading of the Texas Disciplinary Rules in making these relevant factual determinations. Whatever deference due the court’s factual findings, little or no deference is proper in reviewing its interpretation of ethical rules. We have recently held that a ‘district court’s interpretation of the state disciplinary rules [is] an interpretation of law, subject essentially to de novo consideration.’ ”
Our decision in Lansing-Delaware highlights our responsibility when reviewing a trial court determination in this area. ‘When the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law .” (Emphasis added.) 248 Kan. at 572. In Lansing-Delaware, there existed a dispute regarding the facts. Two attorneys, both initially working in the same firm, testified. One of these attorneys left the firm and became employed by a second firm. The question for resolution was whether the attorney going to the new firm had obtained confidential information that would preclude him as well as the new firm from representing a client in an action against the old firm’s client.
One attorney testified that no confidential information was exchanged. The other attorney testified that detailed discussions occurred involving confidential information. While we noted that the factual findings of the trial court lacked specificity, the trial court determined that confidential information was exchanged and granted the motion for disqualification. The trial court obviously accepted the version related by the attorney who testified that there was an exchange of confidential information. It was this factual determination by the trial court that we referred to when we determined that such findings, if supported by substantial competent evidence, will not be overturned on appeal.
Once it was established that the trial court’s factual determination was supported by substantial competent evidence, it was established that confidential information was exchanged. Thus, in Lansing-Delaware, the factual determination by the trial court effectively decided the case even though we needed to determine on appeal whether the facts as found supported the trial court’s conclusions of law.
There are two parts to the scope of review set forth in Lansing-Delaware. This court must first determine whether the trial court’s findings of fact are supported by substantial competent evidence and second, whether the findings are sufficient to support the trial court’s conclusions of law. 248 Kan. at 572. The first is a deferential standard of review, and the second involves a question of law based upon given facts.
Unlike Lansing-Delaware, there is no dispute concerning the basic facts surrounding Christian’s involvement with Coastal while associated with both firms. The parties differ as to the application of the MRPC to these facts. While the trial court mentions findings of fact and conclusions of law in its oral decision from the bench, the conclusions of the trial court that the matters are not substantially related is a conclusion of law based on largely undisputed facts. Our review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
It can be seen that the determination of whether the cases are substantially related is a legal conclusion based upon the facts of the case. Having set forth the law regarding conflicts under MRPC 1.9(a) and MRPC 1.10(b), it is now necessary to examine in detail the facts regarding Christian’s representation of Coastal while at Turner and Boisseau and his representation of Chrispens against Coastal while at the Michaud firm.
FACTS
Christopher P. Christian first joined the Michaud firm in September of 1993. From the summer of 1991 until August of 1993, Christian was employed by the law firm of Turner and Boisseau, Chartered. Both firms are located in Wichita. Turner and Boisseau had represented Coastal in four cases that also involved, as this case does, alleged pipeline leaks: Warner v. Coastal, No. 92C2755 (Sedgwick County District Court); Ebenkamp v. Coastal, No. 92C1963 (Sedgwick County District Court); Jerke v. Coastal, No. 92C1964 (Sedgwick County District Court); and Fisher v. Coastal, No. 92-1422-B (United States District Court for the District of Kansas). While at the Turner and Boisseau firm, Christian was involved in the representation of Coastal in each of the above cases.
Within two months of leaving the firm of Turner and Boisseau, Christian, on behalf of the Michaud firm, filed a petition in this case, naming Coastal as a defendant. It is undisputed that Christian did not seek or obtain Coastal’s consent prior to the filing of the suit. Coastal, through its counsel, asked Christian and the Michaud firm to withdraw based upon a conflict, which request was refused. Coastal then filed a motion to disqualify Christian and the Michaud firm based upon alleged conflict of interest. An evidentiary hearing was held. Coastal presented its evidence and rested. Chrispens moved to dismiss the disqualification motion. The trial court granted the motion to dismiss, finding that the cases were not substantially related.
The parties are in agreement on the basic facts. They do not argue about what the facts are but rather argue about what the facts mean.
Christian represented Coastal while at Turner and Boisseau in each of the cases set forth above. Initially, Christian was the “monitoring attorney” on the Jerke and Ebenkamp cases. Eldon Boisseau had overall responsibility for litigating cases in the office but assigned a monitoring attorney on eveiy case so that, technically, there would be two lawyers on every case. According to Boisseau, the monitoring attorney is responsible for most of the pleadings, working with the trial specialist (paralegal) and other day-to-day operations concerning the development of the litigated case.
Early in the above cases, Boisseau became entirely too busy with his own schedule and had to rely on Christian more and more. Boisseau testified that he had to implore general counsel for Coastal, Debra Broussard, to allow Turner and Boisseau to use Christian for a lot of things that he, Boisseau, was personally employed by Coastal to accomplish. Broussard agreed and felt comfortable because she understood that Christian was not “25 years old and just out of law school.” Christian became more deeply involved in the representation of Coastal on both the Jerke and Ebenkamp cases as well as other Coastal cases.
The cases in which Christian was involved while representing Coastal concerned alleged pipeline leaks in the Wichita area. The case Christian was involved with while at the Michaud firm, although involving different chemicals, did involve the pipelines connected to the Coastal’s Wichita refinery. All cases involved the same legal theories, which in most cases may not be particularly significant. However, all the cases also involved issues relating to Coastal’s Wichita area operations, practices, and procedures; its maintenance practices and procedures; and its procedures for detecting and dealing with pipeline leaks. In addition to the same record-keeping practices for all cases, the same management personnel were involved in all cases: Glen Berg, head of the Coastal maintenance crew; Dick McPherson, in charge of Coastal opera tions; Randy Newcomer, the Coastal refinery manager; Bo Burris, head of Coastal remediation; and Ray Harrington, Lynn Richardson, Jay Rondeau, and Gene Meyer, Coastal environmental personnel. Christian had contact with all of the management personnel while working for Turner and Boisseau. In some instances, his contact may have been very insignificant, but he nevertheless had access to all documentation that was available to Eldon Boisseau and general counsel for Coastal. These documents necessarily concerned Coastal’s defense theories as well as information concerning the witnesses who would be called to support Coastal’s position.
Christian did have extensive contact with Gene Meyer, who would necessarily be a key witness in the Chrispens case; contact with Glen Berg, in charge of maintenance of the pipelines, who played a substantial part in the four previous lawsuits handled by Turner and Boisseau and would play an important part in the Chrispens case; and contact with Dick McPherson, who was responsible for operational control of the line. Christian met and conferred with Dick McPherson in preparing for a mediated settlement conference in the Fisher case and met with and conferred with Randy Newcomer in preparing for a mediated settlement conference in Ebenkamp and Jerke. Christian also conferred with Gene Meyer on several questions involving both compensatory and punitive damages. During the course of representing Coastal, Christian acquired knowledge of the strength and weaknesses of Coastal personnel who would be witnesses in the Chrispens case.
Christian’s involvement while at Turner and Boisseau amounted to interviewing and preparing key witnesses for depositions, taking depositions of key witnesses, consulting with Coastal’s in-house counsel, and negotiating a settlement in Jerke and Ebenkamp. In addition, Christian participated in the development, strategy, and tactics of all of the above cases. The evidence establishes that each of the four cases in which Christian was involved while at Turner and Boisseau involved the same key Coastal employee witnesses who would necessarily become key witnesses in the Chrispens case. While some of this information may have become public knowledge by reason of depositions and live testimony in court, not all this information was public information, but instead was confiden tial information obtained by Christian while employed at Turner and Boisseau. Christian also obtained information concerning the business practices of Coastal with regard to how it handles pipeline leaks and with its record-keeping practices and its views on handling pollution litigation.
Numerous exhibits were admitted into evidence. Exhibit No. 1 was a letter from the Turner and Boisseau office dated September 17, 1992, bearing Boisseau’s signature. This exhibit is a litigation plan — a plan of strategy on how the Jerke and Ebenkamp cases were to be defended, and it was prepared at the request of Coastal. While Boisseau did not recall whether he discussed the details of this plan with Christian, Christian would have had access to the letter, and in accord with common practice Boisseau would have discussed the contents of this letter with Christian.
Exhibit No. 7 is a letter to general counsel for Coastal, Debra Broussard, signed by Christian and Boisseau. It is a status report and forwards the brief on a punitive damage claim in the Ebenkamp and Jerke cases. Christian handled the punitive damage issue in both of these cases; he supervised and wrote the brief, or supervised the writing of the brief and the responses to the arguments with regard to the punitive damage claim. In the second paragraph of Exhibit No. 7, Christian states, “I would request you start obtaining the relevant financial information concerning Coastal’s profits for the last five years.’’ Boisseau recalls that this was not public information but confidential information gathered by Christian concerning the punitive damage claim. The fact that this financial information was confidential information acquired by Christian during the course of his representation of Coastal was confirmed by general counsel for Coastal, Debra Broussard.
Moreover, Broussard related the following with reference to the time that Christian spent in representing Coastal Refinery and Marketing while a member of the Turner and Boisseau firm:
“Q. All right. And what was the total number of hours spent by Mr. Christian on Coastal matters?
“A. The total for all case is 147.5 hours.
“Q. Well, that — isn’t that the total from May 1993 on?
“A. Yeah, I’m sorry, the total’s 172.6 hours.
“Q. And, of that, 147 and a half hours was spent from May of ‘93 forward; is that correct?
“A. That’s correct.
“Q. And that’s about 85 percent of his time was spent in the last three months; is that right?
“A. Most of that would have been getting ready for Ebenkamp trial and helping us with the Fisher mediation.”
In response, Chrispens notes that plaintiffs’ case is a Superfund class action for personal injuries and property damage and is substantially different from the previous cases in which Christian represented Coastal, wherein only property damage was involved. Chrispens points out that this case involves different and multiple defendants, including Farmland Industries, Wilco Paint, Midland Refining Company, and others. Warner, Jerke, Ebenkamp, and Fisher did not have multiple defendants or pollutants, and each involved a single, identified pollutant from a specific, recognizable leak; whereas, it is contended that the Chrispens case involved “various hazardous, noxious, and harmful substances,” including Benzene and various hydrocarbons.
Chrispens also contends that plaintiffs’ case involves a different and wholly distinct site than those sites involved in Warner, Jerke, Ebenkamp, and Fisher. The site in the Chrispens case contains 280 homes and 60 businesses, as opposed to previous cases which involved basically rural sites — small in comparison to the site involved in the Chrispens case. Chrispens contends that there are substantially different factual and legal issues and strategies involved in this case based upon the size of the site, the complexity of the site, and the complexity of the issues and the number of defendants involved in this case. Chrispens argues that different defense counsel will be involved in this case in that the case is defended by Morris, Laing, Evans, Brock & Kennedy, Chartered, whereas Turner and Boisseau defended the Ebenkamp, Jerke, Warner, and Fisher cases. Chrispens also contends that a different in-house counsel for Coastal is involved in this case. Debra Broussard was in-house counsel for the previous cases, while Mark Tempest is the counsel for the Chrispens case.
However, when Broussard was asked whether it would make a difference that Mark Tempest was going to be general in-house counsel for Coastal in the Chrispens case, she stated:
“A. No. Mark would handle the lawsuits in a similar fashion that I would. We’re given the same marching orders.
“Q. So in effect, you have die same client with the same attitude and basically the same directions and instructions?
“A. That’s correct. He and I report to the same boss, we get the information from the same clients.”
Chrispens also contends that Christian’s involvement in the prior matters was limited in scope and concerned tasks specific to the facts of each case, not to matters substantially related to the Chris-pens case. While it is true Boisseau testified that he was to have primary responsibility for representation of Coastal, it also is apparent from the evidence that Boisseau became extremely busy and Christian had to become more deeply involved in the representation of Coastal. Based upon the undisputed facts of record, we have no hesitancy in concluding that Christian was deeply involved in the representation of Coastal in the cases of Warner, Jerke, Ebenkamp, and Fisher. In spite of the efforts of Chrispens to characterize Christian’s involvement as peripheral or insignificant, his representation of Coastal in the above cases was, in the true meaning of the term, full legal representation.
Chrispens further contends that Christian’s contact with witnesses in the previous cases while working for Turner and Boisseau was not sufficient to establish a substantial relationship between the two cases. Chrispens’ brief then details from the record the contacts Christian made with all witnesses, including Glen Berg, Dick McPherson, Randy Newcomer, Bo Burris, Lynn Richardson, Ray Harrington, and Gene Meyer. Our consideration of the record convinces us that sufficient contact was had with key Coastal management personnel to provide Christian with confidential information concerning the strengths and weaknesses of witnesses important to the Chrispens case.
After the trial court heard the evidence presented by Coastal, it dismissed Coastal’s motion to disqualify based upon its conclusion that the cases were not substantially related. Thus, under MRPC 1.9(a), Christian was not disqualified nor was the Michaud firm under MRPC 1.10(b). Chrispens notes that no evidence was presented on behalf of Christian or the Michaud firm, since the trial court dismissed the defendant’s motion before the plaintiffs were required to put on any evidence. It must be noted that the motion being considered by the trial court involved not only a motion to disqualify Christian under MRPC 1.9(a), but also a motion to disqualify the Michaud firm under MRPC 1.10(b). By denying the motion, the trial court resolved both questions.
TRIAL COURT DECISION
The trial court, in this case, at the close of the evidence stated:
“I’ll find as a matter of law that Coastal’s record keeping practices or lack thereof— as really more appropriate for this ease — Coastal’s settlement tactics and strategies in defending these types of cases, and the legal theories that plaintiffs might bring such — in cases such as these are not factors that would make these — this case and the Jerke/[Eben]kamp/Wamer or Fisher or Wamer/Campbell cases substantially related.
“The reason that I asked the question about the witnesses is, is that I read Graham v. Wyeth for the proposition that having interviewed a key witness or witnesses in a prior representation would be stuff to make the cases substantially related.
“I’ll find as a matter of fact that the defendant has failed to establish its burden of proof to show that Mr. Christian interviewed Mr. McPherson, Mr. Berg, or Mr. Meyer in this case on matters that would be substantially related to the facts of this case. These are three separate pipeline incidents. They are all pipeline; one of the others does involve crude, this one involves crude. And in all probability one or more of these three witnesses will probably testify in this case when it goes to trial or certainly his deposition will be taken. But I don’t find that the cases are substantially related, and I’ll deny the motion.”
While couched in language that would seem to suggest that it is making some findings of fact, the decision of the trial court amounts to conclusions of law based upon the evidence presented. The trial court made no “specific factual finding” as contemplated by Parker and Lansing-Delaware.
CONCLUSION
Coastal’s burden under MRPC 1.9(a) was to show that (1) Christian formerly represented it in a matter, (2) that the matter is sub stantially related to the matter in which Christian now seeks to represent a new client, and (3) that the new client’s interests are substantially adverse to the interests of Coastal.
The essential facts are not in dispute. As we have stated above, the trial court’s conclusion that the matters were not substantially related is a question of law subject to de novo review. Contraiy to the trial court’s conclusion, we conclude as a matter of law that the matter between the two representations were substantially related. We base this conclusion on the facts that all cases involved the same client; that the matters or transactions in question are relevantly interconnected and reveal Coastal’s pattern of conduct; that Christian had interviewed and acquired valuable knowledge of the weaknesses and strengths of key witnesses who will be key witnesses in the Chrispens case; that Christian obtained confidential financial information in representing Coastal concerning the settlement of a punitive damage claim in the Jerke/Ebenkamp cases, which information is material and relevant in the Chrispens case; that Christian gained material, confidential information of Coastal’s negotiations strategies which may become valuable in the Chris-pens case; that all cases involve the common subject of pipeline leaks or spills from Coastal’s Wichita refinery; and that the previous representation by Christian of Coastal terminated less than three months from the time Christian initiated the Chrispens action against Coastal.
Coastal met its burden of proof under MRPC 1.9(a). Coastal further moved for disqualification of the Michaud firm under MRPC 1.10(b). The burden of proof under this rule lies with the firm against whom disqualification is sought. We held in Parker that “[wjhere a motion to disqualify based on MRPC 1.10(b) has been filed, the district court- must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment.” 245 Kan. at 589. The purpose of the hearing before the district court is to determine whether the attorney acquired material and confidential information during the course of his employment. “If it is determined that the attorney gained material and confidential information during the course of his or her previous employment, then both the attorney and the firm with whom he or she is presently associated are disqualified.” 245 Kan. 589. The converse of this statement would also be true, that if no confidential information was obtained then neither the attorney or the firm with whom he or she is presently associated with are disqualified.
The trial court determined that the matters were not substantially related and, therefore, did not need to resolve the question of imputed disqualification under MRPC 1.10(b). However, both questions were before the trial court and resolved against Coastal. Both questions are before us in this appeal. Our reversal of the trial court decision that the matters were not substantially related requires us to consider whether the Michaud firm met its burden under MRPC 1.10(b).
Coastal presented its evidence in the form of documents, exhibits, and the five testimony of Eldon Boisseau and Debra Broussard, general counsel for Coastal. Chrispens elected not to put on any evidence but did cross-examine Coastal witnesses and comment upon all documentary evidence submitted by Coastal.
Based on the record before us, we conclude that Christian, while employed at Turner and Boisseau, represented Coastal in cases that are substantially related to the Chrispens case; that Coastal’s interests are materially adverse to Chrispens; and that Christian acquired material and confidential information during the course of his employment with Turner and Boisseau. Thus, both Christian, under MRPC 1.9(a), and the Michaud firm, under MRPC 1.10(b), with whom he is presently associated, are disqualified. See Parker, 245 Kan. at 589.
In the appellees’ brief, Chrispens states that “[n]o evidence was presented on behalf of Christian or Michaud, Hutton, Fisher & Andersen, as the trial court dismissed defendant’s motion before plaintiffs were required to put on any evidence.” Under the unique circumstances of this case where the trial court has held a partial hearing and the evidence from that hearing establishes that the attorney whose disqualification is sought “had acquired information protected by Rule 1.6 and 1.9(b) that is material to the matter” (MRPC 1.10[b]), we do not deem it appropriate to remand for yet another hearing before the trial court. As we have said above, the dispute between the parties lies not in the facts but in the interpretation of those facts. We have set forth some of the undisputed facts which establish the conflict. Certainly there are more facts in the record supporting the conclusion that a conflict exists under both MRPC 1.9(a) and MRPC 1.10(b). The facts in the record establish conflict as a matter of law under both rules.
Chrispens argues that:
“[t]he decision to disqualify an attorney chosen by a party to represent him in a lawsuit is of serious concern and the court’s inherent power to do so should only be exercised where the integrity of the adversary process is threatened. Even then, the court should not act unless ‘the offending attorney’s conduct threatens to “taint the underlying trial” with a serious ethical violation.’ ” (Quoting Beck v. Board of Regents of the State of Kansas, 568 F. Supp. 1107, 1110 [D. Kan. 1983]).
The Supreme Court of West Virginia has commented that while disqualification of counsel is aimed to protect one attorney-client relationship, it destroys another attorney-client relationship by depriving a party of representation of its own choosing. Hence, “such motions should be viewed with extreme caution.” Garlow v. Zakaih, 186 W. Va. 457, 461, 413 S.E. 2d 112 (1991).
Chrispens also points out that oftentimes motions to disqualify are used as a disruptive trial tactic. Chrispens further observes that the Kansas Court of Appeals has recently held: “ ‘Motions to disqualify [counsel] “should be viewed with extreme caution, for they can be misused as a technique [ ] of harassment.” ’ ” LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, 750, 876 P.2d 184 (1994). Motions to disqualify are often disguised attempts to divest opposing parties of their counsel of choice. “ ‘The right to be represented by counsel of choice is an important one, subject to override only upon a showing of compelling circumstances.’ ” 19 Kan. App. 2d at 750.
Finally, Chrispens contends that disqualification of the Michaud firm could have substantial and irreparable adverse consequences for an entire class of plaintiffs. Not many attorneys are experienced in environmental cases, nor are many law firms willing to represent plaintiffs in complex environmental litigation. The adverse consequences, Chrispens contends, is exactly what Coastal is banking on. Even if the plaintiffs’ class is able to retain other counsel, disqual ification would likely cause the plaintiffs substantial losses of time, money, and legal expertise, and diminished chances of success on the merits.
We are not unmindful of the above considerations. All of those considerations are important factors when ruling on a motion for disqualification. We pause to note that no such abuses as are suggested above are present in this case. The disqualification notice and motion in this case were filed immediately before any discovery had commenced. The issue was presented in a factual context at a time appropriate for disposition.
Reversed and remanded with directions to grant the motion for disqualification.
Abbott, J., not participating.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Donald Ray Gideon, from sentences he received after he pleaded guilty to premeditated first-degree murder, aggravated kidnapping, aggravated criminal sodomy, and rape.
The defendant was sentenced to life imprisonment with no parole eligibility for 40 years (the hard 40) for first-degree murder, 408 months for aggravated kidnapping (an upward durational departure from the sentencing guidelines of 204 months), 154 months for aggravated criminal sodomy (an upward durational departure from the sentencing guidelines of 77 months), and 154 months for rape (an upward durational departure from the sentencing guidelines of 77 months). All sentences were ordered to be served consecutively. If the sentences imposed are affirmed and the defendant earns the maximum good time available to him (currently 20%), he will first be eligible for parole sometime after his 119th birthday. Had the trial judge not imposed an upward durational departure on the three guidelines sentences, defendant would first be eligible for parole sometime after his 96di birthday.
Defendant raises 13 issues on appeal — some with sub-issues. The issues involve the hard 40 sentence, the upward durational departure from the sentencing guidelines, and whether the defendant’s plea was voluntary.
The facts concerning the crimes are not in dispute. The facts are the defendant’s version of what occurred as related to law enforcement officers and given by the defendant in a written and taped confession.
The victim, Stephanie Schmidt, worked at a restaurant in Pitts-burg, Kansas, where the defendant was also employed. Around midnight on July 1, 1993, Schmidt asked the defendant to give her a ride home from Bootleggers, a bar in Frontenac, Kansas, after they attended a mutual friend’s birthday party. The defendant and Schmidt got into his truck. Schmidt commented that the defendant was a “nice guy” and that she did not know how he could hurt anybody, though she knew he had been in prison before. The defendant told Schmidt he might be capable of hurting someone. The defendant varied from the route to Schmidt’s apartment, and when she asked about it he offered to let her out of the truck. She did not get out, but at one point she reached for the door and he grabbed her. The defendant drove down several dirt roads to a deserted area in Cherokee County. He was in a rage. He raped Schmidt and then anally sodomized her. After he ejaculated the rage went away, and he had to work himself into another rage for the stated purpose of killing her.
The defendant took Schmidt by the hand from the truck and walked her into a wooded area. Schmidt was naked. The defendant handed Schmidt a screwdriver and told her that one of them had to die and that after what he had done she should kill him. Schmidt dropped her hand and began to turn away. The defendant choked £er from behind and then from the front until he thought she was dead. He then tied Schmidt’s bra tightly around her neck to assure she was dead. He dragged her body several feet to a grassy area and left her clothes several feet from the body. The defendant hoped Schmidt’s body would not be found for several months so DNA evidence would not be found. The defendant, as a prior sex offender, knew the Department of Corrections (DOC) had taken a blood sample for the express purpose of having a DNA profile of him on hand.
The defendant then left Kansas, abandoning the truck in Coos Bay, Oregon, and turned himself in to law enforcement authorities in Florida after a national television feature on this case was broadcast. The defendant was returned to Kansas, and after giving the confessions which will be discussed in greater detail herein, he aided authorities in recovering Schmidt’s body.
I. RIGHT TO A JURY DETERMINATION OF THE HARD 40
The defendant points out that at the time his guilty plea was taken, the trial court did not obtain a specific waiver of a jury determination of the hard 40 sentence. The defendant does admit that in the petition to enter a plea of guilty he acknowledged that by pleading guilty he waived the right to a jury determination of the hard 40 sentence. However, he asserts that a written waiver of rights is not a substitute for judicial inquiry in open court concerning a waiver of rights, citing State v. Browning, 245 Kan. 26, Syl. ¶ 5, 774 P.2d 935 (1989), and State v. Anziana, 17 Kan. App. 2d 570, 840 P.2d 550 (1992). The trial court in this case stated on the record that its understanding was that the guilty plea constituted a waiver of the hard 40 juiy, and defendant’s trial counsel agreed.
The defendant argues that although K.S.A. 1993 Supp. 21-4624(2) provides that the hard 40 proceedings shall be conducted by the court where the defendant has waived a juiy trial, the provision does not expressly provide that the hard 40 juiy is automatically waived upon a guilty plea. The defendant asserts that 21-4624(2) requires an express waiver of the hard 40 jury. He argues that the legislature has clearly expressed its intent that a jury determine imposition of the hard 40 sentence unless waived in a manner provided by K.S.A. 22-3403 (waiver of jury trial in felony cases). According to the defendant, criminal statutes must be construed in favor of the defendant; therefore, the hard 40 sentencing must be conducted by a jury unless expressly waived.
K.S.A. 1993 Supp. 21-4624(2) states in pertinent part:
‘‘[U]pon conviction or adjudication of guilt of a defendant of murder in the first degree based upon tire finding of premeditated murder, the court upon motion of the county or trial attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years. The proceeding shall be conducted bij the trial judge before the trial jury as soon as practicable. . . . The jury at the sentencing proceeding may be waived in the manner provided by KS.A. 22-3403 and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.” (Emphasis added.)
The defendant’s argument asks this court to interpret the last sentence of K.S.A. 1993 Supp. 21-4624(2). Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
The plain and unambiguous language of K.S.A. 1993 Supp. 21-4624(2) states that the hard 40 sentencing proceeding shall be conducted by the court if the trial jury has been waived. In State v. Harmon, 254 Kan. 87, 100, 865 P.2d 1011 (1993), this court recognized that “[t]he hard 40 sentencing statute is the only instance wherein the legislature has required that the jury be involved in the sentencing phase of the trial.” However, the legislature has not required drat the jury be involved in every hard 40 sentencing. Rather, the legislature provided that the defendant may waive the hard 40 jury and also that if the defendant has waived his trial jury, the sentencing proceeding shall be conducted by the court. By pleading guilty to first-degree murder, the defendant specifically waived a juiy determination of his guilt. The defendant had no right to a hard 40 jury; he waived his trial jury, and by the language of the statute the hard 40 proceeding was to be conducted by the court. A specific waiver by the defendant on the record of the right to a juiy determination of the hard 40 sentence issue is not required when a defendant pleads guilty to first-degree murder and is subject to a hard 40 sentence.
II. FAILURE TO INFORM
The defendant next argues that if by pleading guilty and waiving his trial juiy he waived his hard 40 jury, then his plea was obtained in violation of the due process clause and therefore was involuntary. The defendant argues that he was not informed that a consequence of his guilty plea was waiver of the hard 40 jury. The defendant acknowledges that he does not have a constitutional right to a jury determination of his sentence. He reasons, however, that the Kansas Legislature has provided the right to a jury determination of the hard 40 sentence. He argues that his waiver of a trial juiy was not knowing and voluntary because he was not informed that the waiver would also apply to his statutory right to a hard 40 jury, which could not impose the hard 40 sentence by less than a unanimous vote and without the sentencing judge’s independent agreement that the sentence was proper. The defendant asserts that the failure to inform him of this consequence rendered the trial court’s inquiiy during his guilty plea hearing constitutionally inadequate and violated due process of law, citing Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). The remedy, according to the defendant, is to set his plea aside.
The trial court did inform the defendant that he had the right to a trial by juiy and that by pleading guilty he waived this right. It did not inform him that by pleading guilty, thereby waiving his trial juiy, he was not entitled to a hard 40 jury.
After accepting the defendant’s plea and in scheduling sentencing, the trial court pointed out that its interpretation was that the hard 40 juiy was waived, and the defendant’s counsel agreed. The defendant did not object at that point, nor did he object at the sentencing hearing. More significantly, the defendant has never sought to withdraw his plea or argued that his plea was involuntary because he did not realize a consequence of his guilty plea was that the hard 40 sentencing proceeding would be conducted by the court.
A point not raised in the trial court cannot be raised for the first time on appeal. State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992) (defendant failed to raise in trial court ineffective assistance of counsel claim based on counsel’s failure to have defendant’s expert witnesses evaluate defendant using the proper legal standard for insanity in Kansas; appellate review precluded); Noble v. State, 240 Kan. 162, 169-70, 727 P.2d 473 (1986) (appellate review precluded when defendant failed to raise issue in trial court that he was not informed of his Fifth Amendment privilege); State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986) (grounds for severance raised on appeal different than grounds presented to trial court; no appellate review of new grounds); Lill v. State, 4 Kan. App. 2d 40, 42, 602 P.2d 129 (1979) (appellate review of legality of guilty plea precluded where raised for first time on appeal). Because the defendant has never sought to withdraw his plea or argued to the trial court that his plea was involuntary because the court failed to inform him that by pleading guilty he had no right to a hard 40 jury, he is precluded from raising the issue for the first time on appeal.
In any event, the record here shows that the defendant’s plea was knowingly and voluntarily made. He does not argue he was unaware that by pleading guilty the court alone would determine whether to impose the hard 40 sentence. He merely points out that the trial court did nor. inform him of this consequence of his plea. The defendant had no constitutional right to a hard 40 jury; that right was wholly statutoiy and was only implicated if he did not waive his trial jury. We find no error on this issue.
III. AGGRAVATING CIRCUMSTANCES
The defendant next argues that the State failed to give notice of the evidence of aggravating circumstances it would present at the hard 40 proceeding.
The State is required to give notice at the time of arraignment of its intent to seek imposition of the hard 40 sentence. K.S.A. 1993 Supp. 21-4624(1). That statute also provides in pertinent part:
“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 1993 Supp. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which tire court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.” (Emphasis added.) K.S.A. 1993 Supp. 21-4624(3).
The defendant and the State disagree about the meaning of the italicized language quoted above. The defendant interprets the language to require die State to give notice of what evidence it will present at the hard 40 proceeding, not just notice of what aggravating circumstances it will rely on. The State, conversely, contends that the language only requires the State to give notice of the aggravating circumstances upon which it will rely, and only evidence of those aggravating circumstances is admissible.
The defendant argues that because of the severity of the hard 40 sentence, due process requires that he have notice of the evidence which will be presented. He points out that the State introduced his confession, and counsel was forced to object in the middle of the proceeding and without “necessarily” having all the information required to challenge the confession, such as police reports or taped statements.
The State argues that the defendant’s appellate counsel’s supposition that his trial counsel did not have all the information required to challenge the confession is incorrect; the State suggests that trial counsel had all materials concerning the defendant, including all reports, statements, confessions, prior records and other material. The State also argues that even if the defendant’s construction of the statute is correct, its failure to detail the evidence was harmless. The State reasons that based on the aggravating circumstances it specified in its notice of intent to seek the hard 40, it was clear what evidence the State would present.
K.S.A. 1993 Supp. 21-4624(1), requiring that notice be timely given, does not detail what information must be contained in the notice. The State’s interpretation of the language in subsection (3) is a reasonable one. The defendant was informed that the State would rely on three aggravating circumstances: He had previously been convicted of a crime in which he inflicted great bodily harm; he committed the murder to prevent or avoid a lawful arrest or prosecution; and the murder was committed in an especially heinous, atrocious, or cruel manner. Detailing the evidence the State would present to support each of these factors is unnecessary under the circumstances of this case. The defendant had only one prior conviction, and the only evidence of the events and the manner in which the murder was committed was contained in the defendant’s confession to police. The State’s notice was not inadequate.
IV. DEFENDANT’S CONFESSION
The defendant’s next argument is that the court erred in admitting evidence of his confession at the hard 40 proceeding. K.S.A. 1993 Supp. 21-4624(3) states in pertinent part that “no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.” (Emphasis added.)
The court permitted Kansas Bureau of Investigation Special Agent Scott Teeselink to testify about the defendant’s confession. Teeselink testified that he was involved in investigating the disappearance of Schmidt by placing her and the defendant on the Kansas Most Wanted list, Schmidt as a missing person with foul play suspected and the defendant as a fugitive from justice. After the defendant subsequently turned himself in in Florida, Teeselink and a Pittsburg police officer drove to Florida to pick up the defendant. There, Teeselink interviewed the defendant, obtaining general information from him. Teeselink advised the defendant of his rights, and the defendant waived his rights. The defendant stated that he left Bootleggers with Schmidt but they went different directions once outside the bar. After Teeselink informed the defendant there was conflicting information about what he did after leaving Bootleggers, the defendant ended the interview. The next day Teeselink began transporting the defendant back to Kansas. No further interrogation occurred during the drive, though Teeselink did admit that he told the defendant at least once that if it was the defendant’s sister or mother he was looking for the defendant would want him (Teeselink) to “work this hard.”
Upon arriving in Kansas on July 23, 1993, the defendant was taken first to the KBI headquarters and then to the Shawnee County Jail. On July 24, 1993, Teeselink asked the defendant to help in finding Schmidt, and the defendant replied, “Well, will you come back and see me the next day. I’ve got to think about it.” The following day, after being Mirandized, the defendant stated, “I thought about it. I just can’t do it. I thought you were talking about a plea.” The next day, July 26, 1993, Teeselink and another agent again interviewed the defendant. The defendant was Mirandized and he signed a “Miranda card,” waiving his rights. The defendant then gave the confession detailed earlier in this opinion. Before confessing, the defendant made several requests, including a request to call his mother to inform her of his confession before she found out from the media, to let Schmidt’s family have input in sentencing, and to inform Schmidt’s family that Schmidt asked the defendant to make sure her mom and dad knew she loved them both.
Throughout the interviews by Teeselink, the defendant did end interviews, but he did not specifically request to talk to an attorney or invoke his right to remain silent.
The defendant objected to Teeselink’s testimony concerning the confession, arguing that the confession was involuntary and coerced. The court found that there was no evidence the confession was obtained unconstitutionally or otherwise illegally. The court admitted the testimony.
In State v. Morris, 255 Kan. 964, 971, 880 P.2d 1244 (1994), this court reiterated our standard of review concerning admissibility of custodial statements:
“The first question for this court to determine is whether there is substantial competent evidence to support the district judge’s finding that the confession was voluntary. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of die accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990). When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence. See State v. Johnson, 253 Kan. 75, 83-84, 853 P.2d 34 (1993).”
See also State v. Garcia, 250 Kan. 310, Syl. ¶ 2, 827 P.2d 727 (1992) (“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.”). The trial court here did not specifically rule that the defendant made a voluntary, knowing, and intelligent confession, but the court did rule that the confession was not obtained unconstitutionally or illegally. This court will accept that determination if it is supported by substantial competent evidence.
Both the defendant and the State cite State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981). There, the defendant voluntarily submitted to questioning but eventually stated that he wanted to talk to an attorney. The defendant decided to talk to a public defender. The KBI agents then told the defendant that he would have to tell his attorney the truth before the attorney could help him and that if he wanted to tell the KBI about the death being investigated it would have to be at that time because his attorney would advise him not to talk. The agents also told the defendant that he should think it over and that people would think more of him if he told the truth. They placed him under arrest for the murder and prepared to take his fingerprints. The defendant then, without further questioning by the agents, narrated a confession. 229 Kan. at 350-51. The trial court determined that the defendant’s confession was voluntary and that the statements of the agents after the request for counsel were not coercive. 229 Kan. at 352. This court, following an extensive discussion, affirmed, noting that the defendant’s subsequent conduct indicated a willingness to assist the KBI agents. 229 Kan. at 357, 359.
This court in Newfield discussed Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). In Mosley, the United States Supreme Court interpreted Miranda to require some cessation of interrogation once an accused has invoked a Miranda right. The interrogator must “scrupulously honor” those rights once asserted. In Newfield, 229 Kan. at 355, this court stated:
“[T]his court must decide whether the State has adequately proved (1) that the accused knowingly and intelligently waived his right to retained or appointed counsel; (2) that interrogation ceased for an appreciable period when the accused requested consultation with an attorney; and (3) that the statements made by the police after the request for counsel did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response.”
The Newfield court also cited State v. Kanive, 221 Kan. 34, 558 P.2d 1075 (1976). In Kanive, the accused told the police he did not want to talk after he was given the Miranda warnings and questioned about a rape. He was later questioned by another officer about a robbery and murder, and he gave a confession. This court stated, “The prohibition against continued interrogation in the face of a refusal to talk does not invalidate a statement thereafter given where the right to remain silent has been voluntarily and knowingly waived at a later time.” 221 Kan. at 37.
Here, the defendant was Mirandized after he turned himself into the Florida authorities. Teeselink questioned the defendant upon his arrival in Florida, but the questioning terminated at the defendant’s request. During the drive from Florida to Topeka, no questioning took place. After arriving in Topeka, Teeselink asked for the defendant’s help, and defendant told him to return the next day. The next day, the defendant terminated the discussion. The following day, Teeselink again approached the defendant. At that time, the defendant gave a full confession after being advised of his Miranda rights and signing a waiver of the rights. There is no evidence that the defendant unambiguously invoked his right to remain silent; he did terminate questioning. Each time the defendant terminated questioning, the request was scrupulously honored and an appreciable time passed before he was approached again. At no time did the defendant ever invoke his right to counsel. Following his confession, the defendant gave full assistance to the authorities in their investigation. The trial court did not err in allowing Teeselink to testily about the confession made by the defendant.
V. VICTIMS’ STATEMENTS
The Schmidt family (the victim’s father, mother, and sister) was permitted to make statements at the sentencing proceeding. The State offered the family’s statements not as evidence but in compliance with the right of a victim to make a statement. The defendant objected that to do so violated his constitutional right to confrontation. The objection also was made that the Victims’ Rights Amendment was unconstitutional and a denial of equal protection and due process. The court overruled the objection. Schmidt’s father, mother, and sister then made statements concerning how Schmidt’s death had affected them and what they thought the penalty should be. The main themes of the comments reflected that the defendant was a prior sex offender who should not have been released from prison, that the death penalty should be available, that what happened to Schmidt was like imposing the death penalty on her, and that the court should not permit the defendant to do the same thing to “another Stephanie.”
The defendant argues that by considering the Schmidt family’s statements at the hard 40 proceeding, imposition of the hard 40 sentence was imposed under the influence of passion, prejudice, or other arbitrary factors. He points out that the sentencing court explicitly noted the Schmidt family’s comments in imposing sentence: “Based on the evidence offered today and the statements made by the victim’s family and the record, I find the following aggravated factors exist beyond a reasonable doubt . . . .” The defendant contends that the statements were inadmissible because they were irrelevant. Moreover, defendant claims the statements were inflammatoiy and prejudicial as they were direct at tacks on the criminal justice system. The defendant also argues that admitting the statements denied him the right to cross-examination. He reasons that the court could not help but impose the hard 40 sentence in response to the inflammatory statements of the Schmidt family.
K.S.A. 1993 Supp. 21-4624(3) permits presentation of relevant evidence at the hard 40 proceeding but excludes evidence secured in violation of the United States and Kansas Constitutions. The Victims’ Rights provision, article 15, § 15 of the Kansas Constitution, states in pertinent part:
“(a) Victims of crime, as defined by law, shall be entitled to certain basic rights, including the right to be informed of and to be present at public hearings, as defined by law, of the criminal justice process, and to be heard at sentencing or at any other time deemed appropriate by the court, to the extent that these rights do not interfere with the constitutional or statutory rights of the accused.”
The defendant acknowledges that in Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991), the United States Supreme Court permitted testimony by the victims’ grandmother in a death sentencing proceeding. The defendant was convicted of brutally stabbing to death a mother and her two-year-old daughter; her three-year-old son was also stabbed but survived. The grandmother testified that the three-year-old missed his mother and sister. The prosecutor commented extensively in closing argument about the impact of the crime on all the victims. The Court concluded:
“We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” 501 U.S. at 827.
The Court also stated, “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. See Darden v. Wainwright, 477 U.S. 168, 179-183 [, 91 L. Ed. 2d 144, 106 S. Ct. 2464] (1986).” 501 U.S. at 825.
The defendant reasons that the Schmidt family did not testify here; they merely gave statements (not under oath). He suggests that the statements concerned subjects not admissible under Payne. Contrary to this assertion, the Payne Court did not set limits on the type of victim impact evidence which may be admissible.
In his reply brief, the defendant relies on State v. Yanez, 469 N.W.2d 452 (Minn. App. 1991). There, the victim gave a brief statement of the impact the defendant’s crime (rape) had on her. She concluded, “ ‘Although nothing can replace what I have lost, his severe punishment will give me the peace of mind to say people can’t get away with this. I’m saying this for me and for the girls he will rape after me. Give him all the time you can. After all, your daughter may be next.’” 469 N.W.2d at 454. The defendant informs this court that the Yanez court interpreted this statement as an emotional appeal to bias or prejudice. However, the court concluded that “[t]he record does not suggest in any way that the trial court took this appeal into consideration.” 469 N.W.2d at 455.
The defendant attempts to distinguish Yanez on two grounds. First, the statements of the Schmidt family here were far lengthier and more egregious than those in Yanez. The statements do appear lengthier, but the defendant has not shown that the statements rendered the sentencing proceeding fundamentally unfair. Second, the trial court here specifically stated it was considering the statements of the family in imposing sentence. The defendant argued at oral argument that the trial court’s statement that it was imposing the hard 40 sentence based in part on the statements of the Schmidt family clearly establishes that the court considered the family’s emotional appeal. A quick reading of Yanez shows that the defendant’s second distinction is incorrect. Like the statement of the trial court here (“Based on the evidence offered today and the statements made by the victim’s family and the record . . . .”), the trial court in Yanez had made a similar statement: “ ‘The Court believes that under the circumstances of this case, including for the reasons set forth in the victim’s statement, as well as the reasons disclosed in a review of the discovery materials provided in the Court’s file in response to discovery demands by your attorney . ... .” 469 N.W.2d at 454. Despite this statement by the trial court, the Minnesota .appellate court held that the record did not suggest that the trial court had considered the emotional appeal of the victim.
Under K.S.A. 1993 Supp. 21-4627(3), this court is to determine “[w]hether the mandatory term of imprisonment was imposed under the influence of passion, prejudice, or any other arbitraiy factor.” Article 15, § 15 of the Kansas Constitution specifically permits the victims of crimes to be heard at sentencing as long as the defendant’s constitutional and statutory rights are not violated. The defendant has not shown such violation here. The statements of the Schmidt family reflected the impact the defendant’s crime had on them. The statements did reflect some considerations, such as the propriety of the death penalty and whether the defendant should have been released from prison after his prior offense, that should not be presented to a jury. However, the statements were made to the court and not to a jury. The court could properly determine what weight, if any, to give to the statements. The court’s statement before sentencing the defendant referring to the Schmidt family’s statements does not in itself show that the court improperly considered these statements. The court gave ample reasons for imposing the hard 40 sentence which were not related to the statements made by the Schmidt family. The defendant has not shown that the statements of the Schmidt family and the court’s consideration of those statements rendered the imposition of the hard 40 sentence the result of passion, prejudice, or any other arbitraiy factor.
When victims’ statements are presented to a jury, the trial court should exercise control. Control can be exercised, for example, by requiring the victims’ statements to be in question and answer form or submitted in writing in advance. The victim’s statement should be directed toward information concerning the victim and the impact the crime has had on the victim and the victim’s family. Allowing the statement to range far afield may result in reversible error. We do not find reversible error here.
VI. MITIGATING FACTORS
In a hard 40 proceeding, the finder of fact is to determine whether one or more aggravating circumstances exist beyond a reasonable doubt and whether the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist. The finder of fact shall designate the statutory aggravating circumstances it found beyond a reasonable doubt. K.S.A. 1993 Supp. 21-4624(5). K.S.A. 1993 Supp. 21-4626 enumerates eight mitigating factors which may be considered in a hard 40 proceeding, but this list is noninclusive:
“Mitigating circumstances shall include, but are not limited to, the following:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(3) The victim was a participant in or consented to the defendant’s conduct.
“(4) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(5) The defendant acted under extreme distress or under the substantial domination of another person.
“(6) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
"(7) The age of the defendant at the time of the crime.
“(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by the victim.”
Nothing in these statutes requires the finder of fact to find the existence of mitigating circumstances beyond a reasonable doubt or to specify what mitigating circumstances are found.
As his sole evidence at the sentencing proceeding, the defendant submitted copies of reports of his prior institutionalizations, hospitalizations, and psychiatric and psychological evaluations. According to the defendant, these reports summarized his disturbed relationship with his mother, his history of institutionalizations (the defendant had been either incarcerated or institutionalized for all but 2 or 3 years of his life since the age of 13), and his history of suicide attempts. All of the reports were over 10 years old.
In imposing the hard 40 sentence, the court found the existence of three aggravating circumstances. The court then stated:
“The court further finds the following mitigating factors exist: First, the defendant has expressed remorse. Secondly, the defendant has accepted responsibility for lfis actions. And, thirdly, that the defendant eventually aided tire authorities in winding up the investigation and at least putting some finality to the acts that he committed.”
The court made no findings concerning the statutory mitigating factors now relied on by the defendant.
According to the defendant, the evidence he presented at the hard 40 proceeding supports the following statutory mitigating factors: “The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.” K.S.A. 1993 Supp. 21-4626(2). “The defendant acted under extreme distress.” K.S.A. 1993 Supp. 21-4626(5). “The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired.” K.S.A. 1993 Supp. 21-4626(6). The defendant argues that the court erred in failing to state its findings with respect to these statutory mitigating circumstances. He asserts that the failure to find these mitigating circumstances violated due process, the Eighth Amendment, § 9 of the Kansas Constitution Bill of Rights, and the need for individual consideration in sentencing.
The defendant cites Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). In Eddings, the defendant was convicted of first-degree murder. At the death sentencing hearing before the trial court, the defendant presented evidence of his upbringing which included a lack of discipline as well as physical abuse. In imposing the death sentence, the court found the existence of three aggravating circumstances and that the defendant’s age (16) was a mitigating circumstance. With respect to the defendant’s argument about his mental state and emotional disturbance resulting his unhappy upbringing, the court stated, “ ‘Nor can the Court in following the law, in my opinion, consider the fact of this young man’s violent background.’ ” 455 U.S. at 109. The Supreme Court in Eddings applied the rule stated in Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978): “‘[T]he Eighth and Fourteenth Amendments re quire that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” 455 U.S. at 110.
Eddings is easily distinguished for a reason pointed out by the State. In Eddings, the trial court had specifically refused, as a matter of law, to consider the defendant’s proffered evidence in mitigation. Here, conversely, the trial court did not refuse to consider the proffered evidence; the court merely failed to indicate whether or not it found those three factors in mitigation.
The defendant has failed to show that the hard 40 sentence was imposed arbitrarily or in violation of his constitutional or statutory rights with respect to mitigating circumstances. Nothing in the hard 40 statutes requires the finder of fact to specify what mitigating factors are found; only aggravating factors must be designated. However, because the hard 40 proceeding was tried to the court rather than to a jury, the hard 40 ruling is more clearly specified in the record here than we would normally have. The court did find three non-statutory mitigating circumstances: the defendant expressed remorse, he took responsibility for the offense, and he aided the authorities in ultimately concluding their investigation.
The evidence presented by the defendant does reflect a history of emotional problems. However, it cannot be said that the evidence mandates the conclusion that the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances or extreme distress or that his ability to conform his conduct to the law was substantially impaired. The trial court did not specifically refuse to consider the evidence of the defendant’s troubled past. As the State points out, the evidence conflicts with the defendant’s assertion of these mitigating factors. In his confession, the defendant stated that his rage disappeared after he ejaculated and that he had to work himself up into another rage before killing Schmidt. In light of the overwhelming evidence of aggravating circumstances, we cannot say that the court erred in failing to find and specify these three statutory mitigating factors on the record.
VII. HEINOUS, ATROCIOUS, OR CRUEL MANNER
The State sought to establish three aggravating circumstances:
“(1) The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.
“(5) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
“(6) The defendant committed the crime in an especially heinous, atrocious or cruel manner.” K.S.A. 1993 Supp. 21-4625.
The court found each of these three aggravators beyond a reasonable doubt. The defendant takes issue with the court’s findings of aggravating circumstances (1) and (6); (6) is discussed in this issue and (1) is discussed later in this opinion.
In finding that the crime was committed in an especially heinous, atrocious, or cruel manner, the court stated:
“[T]he court finds that the defendant committed this murder in an especially heinous, atrocious or cruel manner. The defendant drove his victim into the country in the dark of night, raped her and sodomized her, forced her from the vehicle, made her stand naked in the dark and told her that one of them had to die. He humiliated her, terrorized her and finally took her life. It’s reasonable to conclude that all this time she knew that she would die. And whether it took five minutes or five hours is irrelevant. In my view it was a heinous and atrocious and cruel offense and nothing else can be said about it.”
Both parties cite State v. Willis, 254 Kan. 119, 865 P.2d 1198 (1993). There, this court stated:
“The term “heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.
“A crime is committed in an especially heinous, atrocious, or cruel manner when tire perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to [his] or [her] ultimate fate.” 254 Kan. at 130.
The defendant contends that the evidence was insufficient to find the murder was committed in an especially heinous, atrocious, or cruel manner. The defendant argues that reliance on the fact that he raped and sodomized Schmidt before killing her are improper factors to rely on because he was convicted of and sentenced for those crimes separately. He asserts that there was no evidence he intentionally sought to humiliate or terrorize Schmidt and that the killing was done quickly and with no torture. The defendant reasons that the facts here do not meet the definition of “heinous, atrocious, or cruel” specified in Willis.
Viewed in the light most favorable to the prosecution, the evidence is sufficient to find beyond a reasonable doubt that the murder was committed in an especially heinous, atrocious, or cruel manner. There was very little testimony concerning the trauma suffered by Schmidt before the killing. This is because there are no surviving witnesses but the defendant and because of the time which elapsed before Schmidt’s body was discovered. The defendant took Schmidt to a deserted area in the country. He forced her to stand naked in a field. He told her one of them had to die, handed her a screwdriver, and told her she should kill him.
The defendant’s claim that this was either a suicidal gesture or would justify a finding of self-defense is, as the State suggests, absurd. Schmidt began to turn, and the defendant then strangled her to death. Moreover, there was evidence that throughout the course of the incident Schmidt knew what her ultimate fate would be; she was certain she would not be allowed to live. Schmidt mentioned to the defendant that he was nice and she did not think he was capable of hurting someone, and the defendant warned Schmidt that he might indeed be capable of hurting someone. This exchange shows Schmidt’s concern for her safety. Additional proof that the victim knew she was going to die is the message she asked the defendant to convey to her parents. This constitutes serious mental anguish sufficient to support a finding that the murder was committed in an especially heinous, atrocious, or cruel manner. In addition, based on the facts set forth above, the strangulation of the victim was especially heinous, atrocious, and cruel. See Johnson v. State, 465 So. 2d 499, 507 (Fla.), cert. denied 474 U.S. 865 (1985).
VIII. PRIOR CONVICTION FOR RAPE
The defendant also argues that the evidence was insufficient to support the trial court’s finding of the aggravating circumstance that he was previously convicted of a crime in which he inflicted great bodily harm on another. In finding this aggravating circumstance, the court relied on the defendant’s 1983 conviction for rape and aggravated sodomy.
The defendant argues that the crime of rape is insufficient to constitute great bodily harm. He contends that there was no evidence that he inflicted bodily harm above and beyond the crime of rape in the 1983 conviction. The State, conversely, maintains that the crimes of rape and aggravated sodomy are inherently crimes in which great bodily harm is inflicted.
Our criminal code does not define great bodily harm. In State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984), this court stated:
“Bodily harm has been defined as ‘any touching of the victim against [the victim’s] will, with physical force, in an intentional hostile and aggravated manner.’ [Citation omitted.] The word ‘great’ distinguishes the bodily harm necessary in [the offense of aggravated battery] from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.”
This court has held that rape constitutes sufficient bodily harm to support a conviction of aggravated kidnapping, see State v. Zamora, 247 Kan. 684, 695, 803 P.2d 568 (1990), but this court has not expressed an opinion whether rape constitutes great bodily harm.
We hold that the conviction of the crime of rape or aggravated criminal sodomy is sufficient to find that the defendant inflicted great bodily harm. We decline to hold there are different degrees of rape and aggravated criminal sodomy, as defendant suggests, so as to require a finding that a prior rape or aggravated sodomy was worse than “ordinary” or inherent in the elements of the crime before the crime constitutes great bodily harm. Rape and aggravated criminal sodomy are extremely invasive offenses constituting great bodily harm.
IX. OUTWEIGHING OF FACTORS
Defendant argues the trial court failed to find that the aggravating factors outweighed the mitigating factors beyond a rea sonable doubt. In imposing the hard 40 sentence, the court specifically found the existence of three aggravating factors beyond a reasonable doubt, and the court further found the existence of three mitigating factors. The court then stated: “The court further finds that the aggravating circumstances are not outweighed by the mitigating circumstances.”
K.S.A. 1993 Supp. 21-4624(5) states in pertinent part:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 1993 Supp. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 1993 Supp. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of imprisonment of 40 years, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. ... In non-jury cases, the court shall follow the requirements of this subsection in determining die sentence to be imposed.” (Emphasis added.)
According to the statute, the trier of facts must find beyond a reasonable doubt that the aggravating circumstances are not outweighed by any mitigating circumstances. See State v. Perez, 251 Kan. 736, 745, 840 P.2d 1118 (1992); PIK Crim. 3d 56.01-F.
The defendant reasons that because the trial court here did not include the words “beyond a reasonable doubt” in finding that the aggravating circumstances were not outweighed by any mitigating circumstances, its decision to impose the hard 40 sentence was arbitrary and a violation of due process. The defendant states, “The court in the present case could easily have held the defendant to a higher standard by assuming that the mitigating circumstances must outweigh the aggravating factors by a preponderance of the evidence, before it would reject the Hard Forty,” and “The court clearly did not apply the correct burden of proof to the defendant’s case.”
The defendant’s argument is mere speculation. The trial judge is presumed to have applied the correct standard of proof absent a showing to the contrary. See Fox v. Wilson, 211 Kan. 563, Syl. ¶ 4, 507 P.2d 252 (1973). The trial judge appears to have been tracking K.S.A. 1993 Supp. 21-4624(5) by referencing the aggravating circumstances and mitigating factors and then generally following the statutory language that the aggravating circumstances were not outweighed by the mitigating circumstances. PIK Crim 3d 56.01-D as it existed at the time of sentencing stated: “The State has the burden of proof to persuade you beyond a reasonable doubt that there are one or more aggravating circumstances and that they outweigh any mitigating circumstances.” The trial judge knew the burden of proof and correctly applied it.
We are required by K.S.A. 1993 Supp. 21-4627(3) to review imposition of the hard 40 sentence and determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the evidence supports the findings that the aggravated circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances. On the record before this court, we hold that the sentence was not imposed arbitrarily or as a result of passion or prejudice, and the evidence does support the court’s findings that the aggravated circumstances were not outweighed by any mitigating circumstances. The trial court did not err in imposing the hard 40 sentence.
X. NOTICE OF THE DEPARTURE FACTORS
The defendant’s remaining issues on appeal concern the guidelines sentences imposed for aggravated kidnapping, rape, and aggravated criminal sodomy. The court imposed departure sentences of 408 months, 154 months, and 154 months respectively and ordered that the sentences be served consecutively. These sentences constitute the maximum sentences available. See K.S.A. 1993 Supp. 21-4719(b); K.S.A. 1993 Supp. 21-4720(b). The defendant’s criminal history category was level A (three or more person felonies). Aggravated kidnapping is a severity level 1 conviction, and rape and aggravated criminal sodomy are severity level 2 convictions. The maximum grid sentence for aggravated kidnapping is 204 months, and the court issued a durational departure and sentenced the defendant to 408 months. Because of the departure on aggravated kidnapping and the imposition of consecutive sentences, the defendant’s criminal history was reduced to level 1 for the rape and aggravated criminal sodomy convictions. The maximum grid sentence for those offenses is 77 months, and the court issued durational departures and sentenced the defendant to 154 months for each of those offenses. All guidelines sentences were ordered to be served consecutively, for a total term of 716 months. This sentence falls within the range permissible by the Kansas Sentencing Guidelines Act (KSGA).
The defendant first argues that the State’s motion for a durational departure was insufficient. K.S.A. 1993 Supp. 21-4718(a) provides in pertinent part:
“(1) Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing. . . . The parties may submit written arguments to die court prior to the date of the hearing and may make oral arguments before the court at the hearing. . . .”
Both the State and the defendant filed motions for a durational departure. Neither the State nor the defendant listed the grounds upon which departure was sought. The defendant now argues that the State was required to give notice not only of the request for departure but also of the grounds upon which departure was sought.
The defendant cites Burns v. United States, 501 U.S. 129, 136, 115 L. Ed. 2d 123, 111 S. Ct. 2182 (1991), where the United States Supreme Court held that before a trial court can issue a departure sentence of its own volition on a ground not identified prior to sentencing by the prosecution or in the presentence investigation (PSI) report, the court must give notice that it is contemplating a departure and specify the reason. In Bums, the PSI report stated that there were no factors that would warrant departure, and the prosecution did not seek departure. 501 U.S. at 131. Construing Rule 32 of the Federal Rules of Criminal Procedure, the Court found that the legislative history indicated that Congress did not intend the trial court to issue a departure sen tence sua sponte without first giving notice to the parties. 501 U.S. at 135.
The defendant reasons that just as with Rule 32, K.S.A. 1993 Supp. 21-4718 must be construed to require the State to give notice of the grounds on which it seeks a departure sentence. The defendant reasons that he was denied notice and a meaningful opportunity to be heard. He points out that K.S.A. 1993 Supp. 21-4718(a)(l) requires that a hearing on departure be scheduled “so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing.” He reasons that if he is entitled to a hearing and opportunity to prepare and present arguments concerning departure, he must be informed of what the departure issues are.
K.S.A. 1993 Supp. 21-4718(a) was amended by the 1994 legislature to require that the reasons for departure be stated in a departure motion: “The motion shall state the type of departure sought and the reasons and factors relied upon.” L. 1994, ch. 291, § 58. The remaining language of that statute remains substantially the same and still requires the court to schedule the hearing so the parties have adequate time to prepare and present arguments regarding the departure issues. The State points out that it filed a sentencing memorandum the morning of sentencing, specifying the grounds on which departure was sought. K.S.A. 1993 Supp. 21-4718(a) provides in part that “[t]he parties may submit written arguments to the court prior to the date of the hearing.” (Emphasis added.)
The defendant did not object in the trial court that the State’s departure motion was insufficient. The State argues that the defendant has not preserved this issue for appeal.
The statute in effect at the time of the defendant’s sentencing did not expressly require the State to specify the grounds upon which departure was sought. The Kansas Legislature has since required specific notice. The defendant failed to object in the trial court that the notice was insufficient. The defendant himself sought departure without specifying the factors upon which he relied. Moreover, he has not shown that he was unaware of the departure grounds on which the State was relying. The State did file a sentencing memorandum specifying the departure factors, although the memorandum was not filed until die date of the hearing. The defendant did not request additional time to prepare after receiving the State’s memorandum. The defendant has not shown that he was denied a reasonable opportunity to be heard on the departure issues, and we conclude that he is not entitled to a new sentencing hearing based on his argument in this issue.
XI. NOTICE BY COURT OF DEPARTURE FACTOR
The defendant also argues that the court relied on his “future dangerousness” as a departure factor, a factor not argued by the State. The defendant argues, similarly to his earlier argument, that the court was required to give notice of its intent to depart on that factor.
K.S.A. 1993 Supp. 21-4718(b) provides: “If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if they request.” Again, the legislature has since amended this statute by including the following language: “The notice shall state the type of departure intended by the court and the reasons and factors relied upon.” K.S.A. 1994 Supp. 21-4718(b).
The defendant acknowledges that there is some uncertainty whether the trial court actually relied on his future dangerousness as a departure factor. K.S.A. 1993 Supp. 21-4716(a) states that if a departure sentence is issued, “the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” At the sentencing hearing, the court gave its reasons for issuing an upward departure:
“[T]he court finds that diere is a substantial and compelling reason for departure. The defendant took advantage of the trust that diis girl had placed in him. She suffered the pain and humiliation of die acts of rape and sodomy, and I believe knew at the same time that she was probably not going to survive it. The defendant has established an unquestionable propensity to commit these kinds of crimes, rape, sodomy and murder, and I am convinced that if he is ever released from custody he will continue to commit the same acts.”
In its journal entry, however, the court made no mention of future dangerousness as a reason for departure. The journal entry reads in pertinent part:
“Aggravating factors cited as a basis for departure sentence:
“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.
“It was reasonable to conclude from the evidence drat during the crimes of kidnapping, rape and sodomy die victim knew she would not be allowed to live. Defendant took advantage of the trust place[d] in him by die victim.”
The State argues that nothing in K.S.A. 1993 Supp. 21-4718 required the court to give notice of its intent to depart or the reasons for departure in this case. K.S.A. 1993 Supp. 21-4718(b) does require notification “[i]f the court decides to depart on its own volition, without a motion from the state or the defendant.” The State reasons that as there was a motion for departure filed by the State, the statute did not require the court to give notification of its intent to depart. The State did not mention future dangerousness in its request for upward departure, nor was any language included in its sentencing memorandum that can be construed to suggest future dangerousness would be relied on as a ground of departure. The State did mention it would rely in part on the factors set out in the victim impact statements. There are no victim impact statements in the record. The PSI report that was completed seven days before sentencing states they had not been received as of that date and would be added to the record when received. The victim’s parents and sister did make oral statements at the hearing and pointed out defendant’s future dangerousness. That would not give the defendant adequate time to respond, and it is error to use a factor for upward departure of a sentence that the defendant has not received notice of until presented at the sentencing hearing.
The fact that it is error does not mean it is reversible error. In the context of the denial of allocution, we have said the following:
“For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to die right to allocution in K.S.A. 1992 Supp. 22-3424(4), the defendant must make a proffer of the contemplated evidence comparable to that required by K.S.A. 60-405.” State v. Borders, 255 Kan. 871, Syl. ¶ 4, 879 P.2d 620 (1994).
The same rationale applies where the trial court fails to give prior notice of a departure factor upon which it will rely. The defendant must make some proffer of the evidence he would present (or the argument he would make) to refute the factor before this court will find reversible error. The defendant has failed to make such a proffer here.
Here, most of the evidence of future dangerousness is based on evidence presented by the defendant. If the defendant puts evidence in the record such as his prior record and medical reports, he necessarily knows the material will be considered in sentencing. The defendant also spoke in his own behalf and made it clear that he had tried to conquer his propensity to commit this type of criminal act and was unsuccessful. The trial court had evidence before it that the defendant had served a lengthy prison sentence for rape and aggravated sodomy. While in prison, he received counseling as a sex offender prior to his release on parole. There was testimony that while incarcerated he had prepared or worked on a pamphlet or paper on rage that was and may still be used by the DOC. While on parole he was given further counseling. He was on parole and apparently had counseling available when he committed these crimes. He also related another rape he committed while on parole that was not reported, but its occurrence was verified. The defendant was aware of his problems with rage, and in fact he recognized in this case that after he ejaculated, his rage was gone and he had to work himself into another rage to carry out the killing. The defendant himself presented copies of reports of his prior evaluations and institutionalizations. From the defendant’s prior criminal history and his extensive history of institutionalization and incarceration, the court could conclude that the defendant posed a substantial risk of committing the same crimes should he be released from custody.
We hold it is not necessary in every guidelines departure case to put on expert testimony concerning future dangerousness. Here, the facts are sufficient for the trial court to conclude future dangerousness from the record, and the burden of proof then switched to the defendant to overcome that evidence. The court had nothing before it to suggest the defendant would or could change. The defendant has offered nothing that would indicate he would not be dangerous in the future, and he gives no clue what he would or could offer to overcome the evidence of future dangerousness. In fact, defendant does not argue he was unable to adequately oppose the future dangerousness ground for departure.
"Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done.” State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). We hold that the error in not giving the defendant sufficient notice of using future dangerousness as a reason to depart upward on defendant’s sentence is harmless error.
XII. UPWARD DEPARTURE
The defendant next argues that the court erred in issuing an upward departure on the aggravated kidnapping, rape, and aggravated criminal sodomy convictions.
K.S.A. 1993 Supp. 21-4721, governing appeals of departure sentences, specifies tíre issues this court may determine as follows:
“(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 file 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;
(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or
(3) the sentencing court erred in ranking the crime severity level of the current crime or in determining die appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
A claim that the 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.
The court gave three reasons for an upward departure at the sentencing hearing: (1) The defendant took advantage of the victim’s trust. (2) The defendant inflicted pain and humiliation on the victim; along with this factor was the court’s finding that the victim knew she would not be allowed to survive. (3) The defendant would commit the same crimes if he is ever released from custody. In the journal entry, the court gave somewhat different reasons for departure: (I) The defendant’s conduct manifested excessive brutality in a manner not normally present in that offense. (2) The victim knew she would not be allowed to live. (3) The defendant took advantage of the victim’s trust. Future dangerousness and pain and humiliation per se were not cited in the journal entry but were specified on the record at sentencing. Excessive brutality was specified in the journal entry but not on the record at sentencing. It appears that the “pain and humiliation” factor identified at sentencing was merely restated as “excessive brutality” in the journal entry. If a departure sentence is issued, the court “shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” K.S.A. 1993 Supp. 21-4716(a). The court’s comments at the time of sentencing govern as to the reasons for departure.
Future Dangerousness
K.S.A. 1993 Supp. 21-4716(b)(2) lists several aggravating factors which may be considered in determining whether substantial and compelling reasons for departure exist:
“(A) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity'which was known or should have been known to the offender.
“(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.
“(C) The offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim.
“(D) The offense involved a fiduciary relationship which existed between the defendant and the victim.”
This is a nonexclusive list of aggravating factors; other appropriate aggravators may also be considered. K.S.A. 1993 Supp. 21-4716(b)(2). That appropriate aggravators other than those mentioned in K.S.A. 1993 Supp. 21-4716(b)(2) can be considered is of significance in this case. K.S.A. 1993 Supp. 21-4716 was amended in 1994 to add a number of aggravating factors not present in the 1993 statute. L. 1994, ch. 341, § 2. Considering the factors listed in the 1994 statute does not present a question of using a law enacted after defendant’s conviction to justify an upward departure from the sentencing guidelines. It is using an appropriate aggravating circumstance not specifically enumerated in the nonexclusive list in the 1993 statute but codified by the legislature in 1994. It does have added credibility because of the legislative adoption in 1994.
The 1994 version of the nonexclusive list of aggravators in 21-4716(b)(2) reads in pertinent part:
“(G) The defendant’s current crime of conviction is a crime of extreme sexual violence and tire defendant is a predatory sex offender. As used in this subsection:
(i) ‘Crime of extreme sexual violence’ is a felony limited to the following:
(a) A crime involving a nonconsensual act of sexual intercourse or sodomy with any person;
(ii) ‘Predatory sex offender’ is an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who:
(a) Has one or more prior convictions of any crimes of extreme sexual violence. Any prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal history category; or
(b) suffers from a mental condition or personality disorder which makes the offender likely to engage in additional acts constituting crimes of extreme sexual violence.
(iii) ‘Mental condition or personality disorder’ means an emotional, mental or physical illness, disease, abnormality, disorder, pathology or condition which motivates the person, affects tire predisposition or desires of the person, or interferes with the capacity of the person to control impulses to commit crimes of extreme sexual violence.”
K.S.A. 1993 Supp. 21-4716(b)(3) places a limit on considering a departure factor which is inherent in the offense:
“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 tire usual criminal conduct captured by the aspect of the crime.”
Here, the defendant has in the past been convicted of the crimes of nonconsensual rape and nonconsensual sodomy, which are defined by statute as crimes of extreme sexual violence. He is now statutorily defined as a predatory sex offender because he has here been convicted of the same two crimes of extreme sexual violence. K.S.A. 1994 Supp. 21-4716(b)(2)(G)(ii)(a) provides that “[a]ny prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal history category.”
We believe the legislature, by specifically stating the 1993 statutory list to be nonexclusive, intended that other circumstances be considered. The legislature then followed up by adding other specific circumstances which are also nonexclusive and which the defendant clearly and unquestionably fits. He . has currently committed not one but two crimes of extreme sexual violence and would now be classified as a “predatory sex offender.” That violent sex offender and predatory sex offender became statutory factors in 1994 is not significant. What is significant is the defendant was convicted of nonconsensual rape and nonconsensual sodomy and has currently pleaded guilty to committing the same kind of offenses as the ones previously committed. The trial court did not err in using the prior convictions as substantial and compelling reasons to impose an upward departure from the sentencing guidelines.
Trust
The defendant argues that the departure factor of trust is inherent in the nature of the offenses. He points out that aggravated kidnapping was alleged to have been committed by force or deception. He reasons that under K.S.A. 1993 Supp. 21-4716(b)(3), trust could not be an aggravating departure factor because deception was an element of the aggravated kidnapping conviction. This argument ignores that the aggravated kidnapping may also have been committed by force. There was evidence that the victim attempted to get out of the defendant’s truck, but he grabbed her and would not let her out. Trust is not inherent in the nature of an aggravated kidnapping.
The defendant also argues that he did not occupy a position of trust with the victim. He points out that “trust” is not listed as a statutory aggravating factor, though a fiduciary relationship is a listed factor. K.S.A. 1993 Supp. 21-4716(b)(2)(D). He clearly did not have a fiduciary relationship with the victim. Even if trust is an appropriate aggravating factor, the defendant reasons that he was a mere acquaintance of the victim and that the trust must be based on a substantial relationship where it is' reasonable to rely on such trust.
The State reasons that the defendant and the victim knew each other from work, they attended a birthday party for a mutual friend, and within the context of friendship the' defendant was to give the victim a ride home. The State cites State v. Hamilton, 348 N.W.2d 112 (Minn. App. 1984), in asking this court to recognize trust as a departure factor as a matter of law. The defendant points out that in Hamilton, the defendant was the rape victim’s stepfather, clearly a closer and more trusting relationship than that between the defendant and victim in the case at bar.
The defendant cites two cases from the státe of Washington which discuss relationships of trust. In State v. Campas, 59 Wash. App. 561, 799 P.2d 744 (1990), the defendant met the victim for the first time at a bar, went to the victim’s house, left the house, and then returned and killed the victim. The court pointed out that there was no evidence that the victim let the defendant back into her house and concluded that the finding of the departure factor of abuse of trust was clearly erroneous. 59 Wash. App. at 567. In State v. Strauss, 54 Wash. App. 408, 773 P.2d 898 (1989), the victim was jogging when she saw the defendant, and she thought he was a security officer or police officer because of his white car and the way he was dressed. The defendant approached the victim and raped her. The court found the evidence insufficient to support a finding that the defendant abused a position of trust because he was neither a friend nor an acquaintance, and the evidence that he was attempting to pose as a security guard was limited. 54 Wash. App. at 421. Our reading of both cases supports the view, contrary to the defendant’s assertion, that a relationship of trust may exist even when the defendant and the victim are mere acquaintances.
Although K.S.A. 1993 Supp. 21-4716(b)(2) lists aggravating departure factors, that statute clearly states that the list is nonexclusive. A departure factor of “trust” is not equivalent to the statutory factor of “fiduciary relationship.” The relationship between the defendant and the victim, although not a designated statutory factor, is relevant in determining whether a departure sentence is warranted.
The defendant and the victim were indeed mere acquaintances. There is no evidence that they had an ongoing relationship or that the victim had placed some high degree of trust in the defendant. However, the defendant was supposedly going to give the victim a ride home and she may have entered his track based on this trust. The degree of trust necessary to warrant departure must be a higher degree of trust than is present here. We think of trust as involving the relationship between a child and a parent, stepparent, or, for example, a church or boy scout leader. Here, the defendant and the victim had no substantial ongoing relationship. The evidence was insufficient to support a finding of abuse of trust as a substantial and compelling reason for departure here. The trial court erred in relying on the aggravating departure factor of abuse of trust under the circumstances of this case.
However, we conclude that other reasons for departure given by the court are supported by the evidence and constitute substantial and compelling reasons for departure. Cf. State v. Reed, 256 Kan. 547, Syl. ¶¶ 4, 5, 886 P.2d 854 (1994) (this court can affirm hard 40 sentence even if evidence was insufficient to find one of the aggravating factors cited).
Pain and Humiliation
The defendant also argues that the departure factor of pain and humiliation was inherent in the offenses. He reasons that the only pain and humiliation inflicted was by the commission of the crimes of rape and aggravated criminal sodomy. These crimes supplied the requisite bodily harm to make the kidnapping offense aggravated. Therefore, according to the defendant, pain and humiliation could not be considered as departure factors under K.S.A. 1993 Supp. 21-4716(b)(3) because the manner in which the offenses were committed were not significantly different from the criminal conduct captured by the crime.
The defendant again cites cases from the state of Washington to show that conduct must be significantly more serious than that typically involved in the commission of the crime for such conduct to constitute an aggravating departure factor. See State v. Dunaway, 109 Wash. 2d 207, 218, 743 P.2d 1237 (1987); State v. Nordby, 106 Wash. 2d 514, 519, 723 P.2d 1117 (1986); State v. Clinton, 48 Wash. App. 671, 677, 741 P.2d 52 (1987). The State cites State v. Lee, 110 Or. App. 528, 823 P.2d 445, rev. denied 313 Or. 211 (1992). These cases do not give this court more guidance than that found in K.S.A. 1993 Supp. 21-4716(b)(3).
The State argues that although every victim of aggravated kidnapping, rape, and aggravated criminal sodomy suffers pain and humiliation, this court should recognize pain and humiliation as a departure factor as a matter of law. The State points out that the states of Minnesota and Washington have recognized similar aggravating factors. State v. Hart, 477 N.W.2d 732 (Minn. App. 1991) (particular cruelty of multiple penetrations and manner of assault); State v. Clinton, 48 Wash. App. at 675 (deliberate cruelty).
The State argues that the defendant subjected the victim to pain and humiliation beyond that normally present in these offenses. The State points to the trial court’s finding that the victim knew she would probably not survive the incident. The State also reasons that the defendant foreshadowed his actions by telling the victim that he might be capable of hurting someone. Additionally, the State reasons that the defendant inflicted emotional pain by offering to let the victim out of the truck and then grabbing her when she tried to exit the truck, and by giving her a screwdriver and telling her she should kill him.
There is very little evidence in the record before us of the manner in which the crimes were committed. There was no evidence of particular trauma to the victim.
The trial court concluded that the victim knew she would not survive the incident. This may be the most compelling reason for departure identified by the trial court. There is sufficient evidence in the record to support this conclusion. During the early stages of this incident, Schmidt commented that she thought the defendant was nice and she did not know how he could hurt anybody. He informed her that he may be capable of hurting someone. He prevented Schmidt from getting out of his truck, and he took Schmidt to a deserted area where he raped and sodomized her. Schmidt could reasonably have known she would not survive at the time the kidnapping, rape, and sodomy occurred. Moreover, after the rape and sodomy occurred, the defendant had to work himself into another rage before killing Schmidt. During that time Schmidt was waiting for what one can reasonably conclude she knew was certain death. During the wait she asked that the defendant tell her parents that she loved them — solid proof that she knew of her impending death.
The trial court considered the fact that Schmidt knew she would be killed as an aspect of pain and humiliation. Whether we call it pain and humiliation or excessive brutality or recognize it as a separate unspecified aggravating factor, it is sufficient to be used as a substantial and compelling reason for an upward departure of the sentencing guidelines.
While the trial court considered circumstances in imposing an upward departure of the sentencing guidelines that are not proper to consider, we conclude that the other reasons for departure given by the court are supported by the evidence and constitute substantial and compelling reasons for departure. Cf. State v. Reed, 256 Kan. 547, Syl. ¶¶ 4, 5 (this court can affirm hard 40 sentence even if evidence was insufficient to find one of the aggravating factors cited).
XIII. SAME REASONS
The defendant’s final argument on appeal is that the district court may not rely on the same aggravating factors to issue a departure sentence on more than one crime. He asserts that reliance on the same aggravating factors violates double jeopardy.
This court determined a similar issue adversely to the defendant’s position in State v. Stafford, 255 Kan. 807, 818-20, 878 P.2d 820 (1994), where we held that consideration of a specific factor in imposing the hard 40 sentence does not preclude consideration of that same factor in making sentences consecutive. The defendant’s argument is meritless.
We affirm the imposition of the hard 40 sentence for the defendant’s first-degree murder conviction and affirm the upward departure of the sentencing guidelines for the crimes of aggravated kidnapping, rape, and aggravated sodomy. | [
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The opinion of the court was delivered by
Davis, J.:
This case involves a homeowner’s tort action for damages against a mortgagee based on claims of trespass, conversion, and intentional infliction of emotional distress. The homeowner appeals the trial court’s denial of her motion to add a claim for punitive damages, the awarding of summaiy judgment to the defendants on her claim of outrage, the denial of her claim for aggravation of illness resulting from the defendants’ trespass, and the denial of her discovery request. Finding no reversible error, we affirm.
Marion Fusaro’s home was damaged by fire on October 7,1988. Because of the fire damage, Fusaro moved out of her home and resided in an apartment until repairs were finished in May 1989.
First Family Mortgage Corporation, Inc., (First Family) held a note and mortgage on Fusaro’s property. Since 1989, First Family had hired Little & Company to provide property inspection, preservation, maintenance, and other services for certain properties of interest to First Family. On March 21, 1989, First Family sent a work order form regarding Veterans’ Administration property under foreclosure to Little & Company. The work order directed Little & Company to do winter maintenance, change the lock, and secure the property owned by Fusaro.
Little & Company contacted Clarence G. Artzer and Son Painting Company (Artzer and Son), directing the company to winterize the property and change the lock. Artzer and Son had often done such jobs for Little & Company in the past. Artzer and Son had been advised by Little & Company that the Fusaro property was being foreclosed upon.
Clarence N. Artzer went to the Fusaro property and, from peering in the window, concluded the house was vacant. The garage door was missing; Artzer entered the garage and discovered some trash bags and boxes. He testified that he looked in some of the trash bags and found only trash and some smelly clothes. Believing the bags to be simply trash and to constitute a fire hazard, Artzer loaded them into his truck and hauled them to the dump.
Artzer stated that he had entered the attic through the garage and looked around and saw a “bunch of stuff” in the attic. He did not remove anything from the attic but did throw away an old wooden ladder which had been used to enter the attic.
Artzer entered Fusaro's home through an unlocked window. The house was empty but in good shape. Artzer began to winterize the house by servicing the water heater and shutting off the water service. He also removed the lock from the front door and took it to a locksmith to be rekeyed. He then put the rekeyed lock back on the door. Artzer testified that the only thing of value he found in the garage was a dining room table which he moved inside the house.
Artzer returned to the house the next day to complete the winterization. He encountered a man scraping paint from the home. The man told him that he was painting the house for a woman who owned it. Artzer left and notified Little & Company that the house was occupied. Little & Company told him to do nothing more on the house until further notice.
Clarence G. Artzer, owner of Artzer and Son, testified that he was in Arizona when the incident occurred. He acknowledged that an update letter from Little & Company told him not to remove any personal property from the houses he winterized even if the items were in poor shape.
On October 6,1989, Marion Fusaro filed an action against First Family, Little & Company, and Clarence N. Artzer for trespass, conversion, and intentional infliction of emotional distress, asking for damages in excess of $10,000. She alleged that the defendants and their agent intentionally, maliciously, and wrongfully entered her residence and disposed of her personal property.
In her deposition, Marion Fusaro claimed that Artzer and Son disposed of her personal items including clothing, boxes of shoes, comic books, a ladder, two Christmas trees, Christmas decorations, a golf bag, suitcases, games, tools, paint, a wooden shutter, a box of kitchen items, lawn furniture, a macrame, an Indian emblem, an elephant statue, a portable sewing machine, a portable record player, records, and other miscellaneous items which she claimed were in her garage. Fusaro stated that prior to the incident she suffered from depression and that the actions of First Family caused her great distress and made her even more depressed and anxious.
Fusaro’s psychiatrist, Dr. Joseph Douglas, stated in his deposition that Fusaro had first come to see him in 1985. At that time she was suffering from her current depression and paranoid thinking. He felt that her illness could be controlled through medication. He testified that Fusaro was distressed initially about the fire at her house and a traumatic interview with the insurance adjuster. By January and early February, however, she was feeling better.
Fusaro went to see Dr. Douglas on March 29, 1989, and, although frustrated with the rebuilding work on her home, she seemed better at that time. However, when she went back to Dr. Douglas on April 11,1989, after the property had been entered by Artzer and Son, she was suffering from increased paranoia and believed that her insurance adjuster had taken her belongings from her garage. She was better by the next week, but in June Fusaro’s condition worsened, and she began to get very paranoid. She felt that the insurance adjuster was interfering in her life and that he was somehow harassing her and her family.
Dr. Douglas concluded that Fusaro suffered from a schizoaffective disorder with symptoms of recurrent depression and paranoid delusions. When asked about the effect of the loss of her personal property, Dr. Douglas opined that the loss of the property added to the stress of the situation and exacerbated her paranoid delusions. He noted that her paranoid symptoms came on soon after the incident. Insurance adjuster Artheray C. Rash acknowledged that he had mentioned to First Family in 1988 that Fusaro was seeing a counselor for medical problems.
Fusaro moved to amend her petition in order to claim punitive damages on the grounds that the defendants had acted in a willful, wanton, and malicious manner and were aware of her unusual susceptibility to emotional distress. Fusaro also filed a motion for summary judgment on the issue on whether a trespass had occurred. The district court granted summary judgment on the trespass claim but found that there was no clear and convincing evidence that she would probably prevail on a punitive damages claim and, therefore, denied her motion to amend.
Fusaro also sought to amend her complaint to include a cause of action for the tort of outrage. The district court found that Fusaro had failed to show the threshold requirement for the tort of outrage. Fusaro sought an interlocutory appeal. The Court of Appeals accepted an interlocutory appeal primarily to determine what standard a trial court should apply when considering a motion to amend a pleading to request punitive damages. See Fusaro v. First Family Mtg. Corp., 17 Kan. App. 2d 730, 731, 843 P.2d 737 (1992).
The Court of Appeals held that the standard to be applied in such proceedings is whether a jury could reasonably find for the plaintiff on the issue of punitive damages; if so, then the amendment should be allowed. 17 Kan. App. 2d at 735. The Court of Appeals noted that this standard is the same as if a directed verdict or summary judgment motion had been filed by the defendant. 17 Kan. App. 2d at 735. Because it was not clear whether the district court in this case had determined whether the evidence would be clear and convincing to the court or whether it could be considered clear and convincing to a reasonable jury, the Court of Appeals remanded the case to the trial court for determination of this issue. 17 Kan. App. 2d at 736.
On remand, the district court found that a reasonable jury could not find the evidence clear and convincing that Fusaro would be entitled to punitive damages. The trial court determined that there was no evidence which would support an inference that the defendants acted in a willful or wanton manner.
Fusaro also filed a motion before the district court seeking a determination that she could recover emotional damages for die aggravation of her mental illness resulting from trespass. The district court, however, determined that Fusaro should be denied recovery for aggravation of mental illness. It determined that there was no evidence that the alleged distress caused any physical injury to Fusaro or that there was sufficient evidence the trespass caused Fusaro’s increased paranoid delusions. The trial court further determined that there was no evidence the defendants were acting in a willful or wanton manner to cause injury to Fusaro.
The parties entered into a stipulation wherein the defendants were found liable for trespass and conversion, and damages were awarded for these torts in the amount of $1,100. This constituted a final judgment, and Fusaro appeals.
ISSUES PRESENTED
Fusaro raises five issues, the first of which is a question of first impression in Kansas. The issues raised are: (1) Whether, in ruling on the plaintiff’s motion to amend petition to include a claim for punitive damages under K.S.A. 60-3703, the district court should have taken into consideration the burden of proof plaintiff will be required to meet at trial to prevail on the punitive damages claim; (2) whether the trial court erred in denying the plaintiff’s motion to add a punitive damages claim; (3) whether the trial court erred in granting summary judgment to the defendants on the plaintiff’s claim of outrage; (4) whether the court erred in denying Fusaro’s claim of aggravation of mental illness resulting from trespass; and (5) whether the court erred in refusing to grant Fusaro’s discoveiy requests.
(1) STANDARD FOR TRIAL COURT ON REQUEST TO AMEND TO INCLUDE A PUNITIVE DAMAGE CLAIM
In Kansas, it is no longer possible for a plaintiff to proceed with a claim for punitive damages without first applying to the trial court for permission to amend to include a claim for punitive damages. K.S.A. 60-3703 provides:
“No tort claim or reference to a tort claim for punitive damages shall be included in a petition or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K S.A. 60-209, and amendments thereto. (Emphasis added.)
At trial, a plaintiff seeking punitive damages “shall have the burden of proving, by clear and convincing evidence, . . . that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice.” K.S.A. 60-3701(c). The question is whether the trial court must, in determining the existence of a “probability that plaintiff will prevail on the claim” take into account the “clear and convincing” standard of proof the plaintiff will be required to meet at the trial of the case.
We answer the above question in the affirmative. K.S.A. 60-3703 requires the plaintiff to establish that there is a probability that plaintiff will prevail on his or her punitive claim at trial before the court will permit an amendment to include a claim for punitive damages. Probability is a term familiar to tort law. It means more likely than not and, when applied to K.S.A. 60-3703, means that it is more likely than not that the plaintiff will prevail on a claim of punitive damages upon trial of tire case. Because the standard of proof required upon trial is “clear and convincing,” the trial court exercising its statutory duties under K.S.A. 60-3703 must give consideration to this standard in determining the probability of recovery.
Neither the trial court, in the first instance, nor an appellate court when reviewing the trial court’s determination under K.S.A. 60-3703, may ignore the fact that the burden of the plaintiff in a claim for punitive damages at trial is proof by clear and convincing evidence. The initial question for the trial court when considering all the evidence is whether “plaintiff has established that there is a probability [considering that the burden on plaintiff is proof by clear and convincing evidence] that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto.” K.S.A. 60-3703.
In making this threshold determination, the trial court is not to usurp the role of the jury. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts remain jury functions. The trial court is to consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice, die trial court shall allow the amendment. This is another way of saying that amendment will be allowed when plaintiff has established that there is a probability that plaintiff will prevail on a punitive claim pursuant to K.S.A. 60-209] and amendments thereto.
Both parties and the Court of Appeals suggest that the standard to be applied is similar to the standard that a trial court would apply when determining whether to grant a summary judgment or a directed verdict. The defendants then urge us to apply the doctrine espoused in the case of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), a libel case involving a public figure, wherein the United States Supreme Court stated that “the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial upon the merits.”
The plaintiff would have us limit Anderson v. Liberty Lobby, Inc., to the facts of that case, contending that it should be limited to libel cases. In support of her position she cites the case of Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 845 P.2d 65 (1993), rev. denied 252 Kan. 1091 (1993), wherein the Court found that the application of the clear and convincing standard at the summary judgment stage is unique to libel cases because First Amendment rights are at issue. 17 Kan. App. 2d at 815. Moreover, plaintiff urges us to resolve what she claims is a split between panels of the Court of Appeals based upon the Court of Appeals’ treatment in the past of this case, Fusaro v. First Family Mtg. Corp., 17 Kan. App. 2d 730. Fusaro contends that the two cases create a conflict in their treatment and application of the United States Supreme Court case of Anderson v. Liberty Lobby, Inc., 477 U.S. 242. We disagree.
Anderson v. Liberty Lobby and Baumann involved summary judgments. This case, like Fusaro, does not involve summary judgment. In this case, we are not dealing with a motion for summary judgment or a motion for directed verdict. We deal instead with the provisions of K.S.A. 60-3703. The question before the trial court becomes whether the evidence as disclosed from the affidavits, given the standard the plaintiff is required to meet in order to prevail on a punitive damages claim, is sufficient as a matter of law to support the plaintiff’s claim for punitive damages under the provisions of K.S.A. 60-3703. A significant similarity between K.S.A. 60-3703 and the trial court’s approach to summary judgment or directed verdict is that under K.S.A. 60-3703 the trial court must view the evidence as disclosed from the affidavits in a light most favorable to the party moving for amendment.
The resolution of the issue raised in this case does not require us to address what the plaintiff alleges is a conflict between panels of the Court of Appeals. The decision in this case is a narrow one. It gives guidance to trial courts in determining whether a plaintiff should be allowed to amend a petition to include a claim for punitive damages under K.S.A. 60-3703.
(2) EVIDENCE IN SUPPORT OF MOTION TO AMEND
Having determined what standard is to be applied by the district court, we now turn to the plaintiff’s contention that the evidence, when viewed in light of the standard adopted, establishes the plaintiff’s right to amend and to include a count for punitive damages.
Under K.S.A. 60-3703, the decision whether to permit plaintiff to amend is discretionary in that the statute provides that the court may allow the filing of an amended petition claiming punitive damages. Thus, our standard of review is one of abuse of discretion. “ Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” In re Marriage of Cray, 254 Kan. 376, 387, 867 P.2d 291 (1994) (quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973]).
We conclude that the trial court did not abuse its discretion in denying plaintiff’s motion to amend her pleading to include a count for punitive damages. Our review of the record discloses that substantial competent evidence supports the trial court’s denial. In arriving at its decision, the trial court opined as follows:
“It is the opinion of this court that plaintiff has failed to meet the burden required to amend a petition for punitive damages. Plaintiff simply relies on conclusory allegations in support of her motion. Plaintiff alleges that the Defendants acted intentionally, maliciously, and wrongfully in trespassing on her real property, ‘trashing’ her personal property, and in draining the water heater, shutting off the water to the house, and changing the locks. However, Plaintiff fails to direct the Court to any evidence in the record that would support an inference that Defendants acted with a ‘designed purpose,’ ‘reckless disregard,’ or an ‘intent to do a harmful act.’ ’’
While there may be conflicting evidence, with some evidence supporting the contentions of Fusaro, we do not resolve such conflicts. Our responsibility is to determine whether there is substantial competent evidence supporting the trial court’s findings. We conclude that there is such evidence and no abuse of discretion by the trial court.
(3) SUMMARY JUDGMENT ON CLAIM OF OUTRAGE
Fusaro argues that the district court erred in granting summary judgment in favor of the defendants on her claim of outrage. According to Fusaro, a reasonable jury might find that the conduct of the defendants, coupled with the infliction of emotional distress to her, was extreme and outrageous.
“Summaxy judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. [Citation omitted.] When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. [Citation omitted.] In order to preclude summary judgment, the facts subject to the dispute must be material to tire conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]” Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991).
When the tort of outrage is asserted, two threshold requirements must be met. The trial court must determine: (1) whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery and (2) whether the emotional distress suffered by the plaintiff is of such extreme degree the law must intervene because no reasonable person should be expected to endure it. Taiwo v. Vu, 249 Kan. 585, Syl. ¶ 4, 822 P.2d 1024 (1991).
In order for conduct to be deemed sufficient to support the tort of outrage, it must be so outrageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. 249 Kan. at 592. The classic test is that liability may be found to exist when the recitation of the facts to an average citizen would arouse resentment against the actor and lead that citizen to spontaneously exclaim, “Outrageous!” See 249 Kan. at 592.
The district court found that Fusaro had failed to meet the two threshold requirements for the tort of outrage. It determined that there was no evidence the actions of the defendants caused Fusaro’s emotional distress or that the defendants’ actions were committed intentionally or in reckless disregard of her mental state. We agree with the trial court’s determination that the defendants’ actions were not so extreme in degree as to be regarded as utterly atrocious or intolerable in a civilized society.
(4) CLAIM OF AGGRAVATION OF MENTAL ILLNESS RESULTING FROM THE TRESPASS
Fusaro contends that the district court erred in holding that she could not recover emotional damages for the aggravation of her mental illness as a result of the defendants’ trespass. She argues that the general rule that a plaintiff is not entitled to recover damages for mental suffering in the absence of physical injury does not apply because the defendants’ acts were wanton or willful.
There is some disagreement over the standard of review. Fusaro argues that we must review the trial court ruling as we would a summary judgment; that is, we must consider the facts in a light most favorable to Fusaro. The defendants, on the other hand, argue that the question is one of law subject to de novo review. The district court considered the question of whether Fusaro could recover damages for aggravation of a mental illness in light of the facts and, therefore, we review the ruling of the trial court as we would review a summary judgment.
Generally, there can be no recovery for emotional distress caused by negligence unless accompanied by or resulting in physical injury. Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032 (1990). This rule does not apply where the injurious conduct was willful or wanton. Bowman v. Doherty, 235 Kan. 870, 877, 686 P.2d 112 (1984). The trial court concluded that the actions of the defendants were neither willful or wanton.
Fusaro also argues that the defendants’ actions in the trespass aggravated her preexisting schizoaffective disorder and that she is entitled to advance her claim based upon an aggravation of a preexisting injury. The trial court found that any damage done to Fusaro was emotional, not physical, and absent any physical injury, recovery was barred. We agree.
Aggravation of a preexisting injury is compensable in a personal injury action. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 469, 856 P.2d 906 (1993). The question is whether Fusaro’s schizoaffective disorder is a physical condition such that its aggravation constitutes a physical injury.
The defendants cite a host of cases which they claim stand for the proposition that aggravation of preexisting mental illness is a mental, not a physical injury. Although for reasons peculiar to the laws of particular states, recovery was granted in these cases, they stand for the proposition that aggravation of a mental disorder is not classified as a physical injury. See Stoleson v. United States, 708 F.2d 1217, 1221 (5th Cir. 1983) (holding plaintiff’s action for damages for hypochondria was not barred because it resulted from an actual physical injury); Steinhauser v. Hertz Corporation, 421 F.2d 1169, 1170 n.1 (2d Cir. 1970) (holding plaintiff’s action for the infliction of schizophrenia was not barred even though no physical injury occurred, because New York had abandoned physical injury rule).
In Kansas, where the aggravation of a mental disorder is not caused by physical injury but instead merely by damage to property, a plaintiff may not recover. In Hopkins v. State, 237 Kan. 601, 613, 702 P.2d 311 (1985), we stated: “Some courts in other jurisdictions have allowed recovery for emotional distress where there has been direct injury to property. . . . We, however, have never allowed recovery under such circumstances.”
The damages claimed by Fusaro are akin to those suffered as the result of infliction of emotional distress. Fusaro suffered no physical injury as a result of the defendants’ actions, but simply an aggravation of a recurrent mental condition. There is no evidence that her mental illness was caused in any way by a physical impact. Based on these circumstances, the aggravation of a mental condition does not constitute a physical injury. Therefore, under the law in Kansas as stated in Huine, Fusaro cannot recover and the district court did not err in so determining.
(5) DENIAL OF DISCOVERY REQUEST
Fusaro argues that the district court erred in failing to grant her discovery requests concerning prior instances of defendants trespassing on property of other mortgagors. According to Fusaro, the district court’s ruling that such discovery was only relevant to the question of punitive damages and, because the amendment to claim punitive damages was not allowed, no discovery should be allowed, stands as a “paradigm of circular logic and abuse of discretion.”
Control of discoveiy is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal absent an abuse of discretion. Manhattan Mall Co. v. Shult, 254 Kan. 253, 256, 864 P.2d 1136 (1993). Discretion is abused when no reasonable person would take the view of the trial court. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 262, 815 P.2d 550 (1991).
Fusaro’s argument hinges upon discovery requests it made in 1990. With these requests, Fusaro sought to discover whether First Family had directed Little & Company to enter other mortgaged property prior to the foreclosure action and without court order. Fusaro provided First Family with copies of a computer-generated list of Little & Company’s job work orders. First Family answered that it was unable to identify any of its jobs from the information provided on the list of work orders. Little & Company objected to the questions as irrelevant and unduly burdensome.
A restatement of the timeline involved is important to the resolution of this issue. In November 1990, Fusaro filed her motion to amend her petition to allow punitive damages. On April 1,1991, the court denied this motion. Fusaro then filed a motion to reconsider, and on May 8, 1991, Fusaro filed a motion to compel the defendants to answer her discoveiy questions. On August 6, 1991, the district court denied her motion to reconsider and ruled that in light of its earlier refusal to allow Fusaro to amend her claim, the information she sought by her motion to compel was no longer relevant.
Later, the case was remanded by the Court of Appeals for reconsideration of Fusaro’s motion to amend. Fusaro v. First Family Mtg. Corp., 17 Kan. App. 2d at 736. The district court again denied Fusaro’s motion to amend.
Any evidence is discoverable if it is relevant to the subject matter of the cause of action and not privileged. Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, 59, 824 P.2d 933 (1992). Fusaro argues that evidence related to the practice of the defendants in entering other property without permission is relevant to show intent in order to prove punitive damages. Little & Company, however, argue that the evidence is not relevant to the defendants’ intent to cause harm to Fusaro but instead only to their intent to dispossess Fusaro and other mortgagors.
Fusaro is correct that any evidence the defendants entered her property intending to dispossess her would be relevant to the issue of punitive damages because, even though the defendants may not have had an intent to harm her, they might have had an intent to interfere with her rights to the property or at the very least been indifferent as to whether that damage would have occurred. Under normal circumstances, the information would be discoverable.
The problem with Fusaro’s argument in this case is that she filed her motion to amend prior to her motion to compel discovery. The trial court correctly ruled on the motion to amend based on the evidence presented by Fusaro. Once that motion was denied, evidence on the issue of punitive damages was no longer relevant. The Court of Appeals’ remand was simply for reconsideration of the motion in light of the Court of Appeals’ ruling on the standard of review.
If Fusaro is caught in a “Catch-22” situation, it is one of her own making. She determined the proper time to file her motion to amend and took the risk that her evidence in support of the motion would be deemed insufficient. Because Fusaro’s motion to amend was denied, the evidence she sought through her motion to compel was not relevant, and the district court did not abuse its discretion in denying the motion.
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The opinion of the court was delivered by
McFarland, J.:
Herschel L. Ricks appeals his jury trial convictions of second-degree murder (K.S.A. 21-3402) and voluntary manslaughter (K.S.A. 21-3403).
INSTRUCTIONS
Defendant contends the trial court erred in three respects relative to jury instructions pertaining to self-defense. These three claimed errors are:
1. Refusal to give a “no duty to retreat” instruction;
2. giving, over defense counsel’s objection, an “initial aggressor” instruction; and
3. improperly limiting the jury’s consideration of prior conflicts between defendant and one of the victims.
To understand the points raised in this issue, the facts must be set forth in considerable detail.
Defendant and Ronald Brown lived in the same Wichita neighborhood and were, prior to September 26, 1992, friends. Brown had been involved in a relationship with defendant’s sister, Sondra. On the day in question, defendant borrowed Sondra’s car. As a result of multiple traffic violations, the car was impounded. For unclear reasons, Sondra blamed Brown for the loss of her vehicle. In an intoxicated condition, Sondra went to Brown’s home demanding the use of one of his vehicles. Defendant saw the pair arguing in Brown’s driveway. Defendant went to the scene in an attempt to defuse the situation. A shot was fired by an unknown party. Brown went into his house, returned with a gun and threatened defendant and certain of his relatives. The group separated upon hearing police sirens nearing. After the police left, additional threats were exchanged. The falling-out between defendant and Brown continued through the fall. In December, defendant purchased a gun, which he stated was for defense against robberies.
On January 6, 1993, the fatal incident occurred. Defendant and a friend, Mark Jacobs, were riding around Wichita in defendant’s car. They passed Brown in his car and proceeded to a Vickers gas station. The Brown vehicle arrived at the same station. Defendant, taking his gun with him, went into the building and purchased a can of soda. Meanwhile, Jacobs left defendant’s vehicle and walked over to the Brown vehicle. The vehicle was occupied by Brown, the driver, and Willis Bumphas, the passenger. Brown told Jacobs about the September 26 incident and how he would like to beat defendant’s “ass.” Jacobs advised Brown that he and defendant should reconcile their differences and returned to defendant’s car (front passenger seat).
As defendant came out of the gas station, Brown eased his car near defendant’s vehicle. A short conversation between defendant and Brown occurred. It is uncontroverted that defendant shot Brown three times, then turned to Bumphas, who was in the passenger seat in the Brown vehicle, and shot him three times. Both Brown and Bumphas died from their injuries.
The State’s evidence was that neither victim was armed and that defendant held his gun low and out of sight as Brown approached. Defendant testified he thought Brown and Bumphas were armed with guns and represented a threat to him. Defendant was charged with two counts of first-degree murder. He was convicted of second-degree murder in the death of Bumphas and voluntary manslaughter in the Brown killing.
With this background in mind, we turn to the particular claims of error. Defendant relies heavily upon State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988), in support of his claim that the trial court erred in refusing to instruct the jury that defendant was under no duty to retreat from the confrontational situation. This reliance is misplaced. Almost no Kansas cases decided in the last 50 years discuss the no duty to retreat concept. In Scobee, we held that under the facts of that case a no duty to retreat instruction was required. In Scobee, two aggressors followed defendant to his home. While he was parked on his driveway, the aggressors approached defendant in a menacing manner with one of them brandishing an iron pipe. Defendant killed one of the aggressors with a rifle. The prosecution had built its case upon the theory that the defendant had a duty to retreat, such as by driving to a police station. Defense counsel was precluded from arguing defendant had no duty to retreat from his driveway.
The facts herein are clearly distinguishable from those in Scobee. The no duty to retreat instruction is required, as indicated in Scobee, in infrequent factual situations such as found therein with such elements as a nonagressor defendant being followed to and menaced on home ground. That is not the situation herein. By his own admission, defendant was in a public parking lot and took his gun with him before anything occurred between the occupants of the two vehicles. Also, unlike Scobee, it was not an uncontroverted fact that the defendant was the victim of aggressive acts immediately prior to firing his weapon. We find no error in the trial court’s refusal to give the jury a no duty to retreat instruction.
Defendant next claims the trial court erred in giving the following instruction:
“No. 16
“A person who initially provokes the use of force against himself is not justified in the use of force to defend himself unless:
1. He has reasonable ground to believe that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than fire use of force winch is likely to cause death or great bodily harm to the other person;
or
2. He has in good faith withdrawn and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.”
In this case, it was disputed whether Brown or defendant was the initial aggressor. Also, we have the initial aggressor question as between defendant and Bumphas.
An individual who has willingly provoked mutual combat is not justified or excused in taking another’s life unless he or she has withdrawn in good faith, has communicated that withdrawal to the opponent, and has done all in his or her power to avert the necessity of felling. State v. Jordan, 250 Kan. 180, Syl. ¶ 6, 825 P.2d 157 (1992); State v. Meyers, 245 Kan. 471, Syl. ¶ 1, 781 P.2d 700 (1989).
Defendant concedes instruction No. 16 is a correct statement of the law, but he contends it was inapplicable to the facts herein and compounded the previously claimed error of refusing to give a no duty to retreat instruction. The jury was not instructed that defendant was the initial aggressor. If there was an initial aggressor it was for the jury to determine who it was. If the jury found defendant was not the aggressor, it could disregard the instruction. See State v. Hunt, 257 Kan. 388, 894 P.2d 178 (1995).
We find no error in the giving of this instruction under the facts herein.
For his final complaint as to instructions, defendant contends the trial court’s limiting instruction concerning prior conflicts between defendant and Brown was erroneous.
At trial, defendant was asked, on direct examination, why he believed Brown was going to shoot him when Brown approached him at the gas station on January 6, 1993. Defendant answered, “Prior to that date Ronald [Brown] had pulled a gun on me before.” As defendant began to explain the September 26, 1992, incident, the State objected on die grounds of foundation, relevancy, and prejudicial effect. The State further asserted that if the court permitted an answer to the question “involving any alleged misconduct of a criminal or civil nature by Ronald Brown,” that a limiting instruction be given which would permit the jury to consider testimony as to why defendant thought Ronald Brown might shoot him only for the purpose of determining defendant’s subjective state of mind. The court agreed with the State’s reasoning for a hmiting instruction. Defense counsel objected to the hmiting instruction, contending that the testimony likewise applied to the objective reasonableness of defendant’s behavior. The court orally gave the following hmiting instruction to the jury:
“You may consider the testimony as to why the defendant thought Ronald Brown might shoot him only for the purposes of determining the defendant’s subjective state of mind.”
Over defendant’s objection, an identical instruction was given to the jury prior to its deliberations.
An appropriate self-defense instruction was given herein. As we stated in State v. Jordan, 250 Kan. at 185:
“ ‘Our test for self-defense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable — specifically, whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary.’ ” (Quoting State v. Stewart, 243 Kan. 639, 649, 763 P.2d 572 [1988]).
The trial court obviously was concerned about the testimony relative to the September incident. The homicides herein did not occur until the following January. Also, the September incident did not involve Bumphas. The trial court was trying to keep the September incident in its proper place by giving the hmiting instruction. The September incident was relevant only as to the Brown self-defense claim. A limiting instruction which restricted consideration of the evidence only as to the Brown self-defense issue, without reference to either the subjective or objective prong, would have been preferable. We do not find reversible error in the giving of the limiting instruction. The September 26 incident was an established fact — not a mental aberration by defendant. As will be recalled, defendant testified Brown was armed with a gun and posing an immediate threat to him in the gas station, although this was contrary to the other evidence in the case. The juiy heard the evidence and found the shooting of Brown was voluntary manslaughter, which is an unlawful killing without malice that is done intentionally upon a sudden quarrel or in the heat of passion (K.S.A. 21-3403).
We are satisfied the limiting instruction given had little, if any, likelihood of changing the results of the trial, and any error therein is harmless. See State v. Ferguson, 254 Kan. 62, Syl. ¶ 5, 864 P.2d 693 (1993).
RIGHT TO A FAIR TRIAL
Defendant complains of several trial court rulings which he contends deprived him of his constitutional right to a fair trial. Defendant points to a number of instances where inquiry was restricted as to defendant’s relationship and encounters with Brown between September 26 and the January killing of Brown.
Review of the admission or the exclusion of evidence is governed by the harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict 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. State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994); State v. Getz, 250 Kan. 560, 569, 830 P.2d 5 (1992).
It could be argued that some of the complained-of rulings involve a rather rigid application of procedural rules. We are satisfied that no substantial rights of the defendant were affected. Looking at the totality of the record, we are satisfied that defendant was able to present adequately the evidence to the jury that he wanted relative to the ongoing hostility exhibited by Brown to defendant subsequent to the September 26 incident, despite some restrictive rulings as to particular questions and other evidence.
CONSIDERATION OF K.S.A. 21-4601
Next, defendant contends that the district court abused its discretion by sentencing him to more than the minimum terms of imprisonment without considering K.S.A. 21-4601, specifically defendant’s “age, his lack of a prior felony record, his reputation for peacefulness and honesty, and his supportive and law-abiding family.” Defendant relies on State v. Richard, 252 Kan. 872, 850 P.2d 844 (1993), for support.
K.S.A. 21-4601 provides:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
The sentencing judge alone determines the appropriate sentence or other disposition in each case, not the appellate judges. State v. Heywood, 245 Kan. 615, 617, 783 P.2d 890 (1989). The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, the public safety, and the statutory guidelines for sentencing. State v. Dotson, 256 Kan. 406, 886 P.2d 356 (1994); State v. Richard, 252 Kan. 872, Syl. ¶ 1, 850 P.2d 844 (1993); State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
Where a sentence is within the statutory limits prescribed for the offense, it will not be disturbed on appeal unless it is shown that the district court abused its discretion or that the sentence was the result of partiality, prejudice, oppression, or corrupt motive. State v. Fisher, 249 Kan. 649, Syl. ¶ 1, 822 P.2d 602 (1991); State v. Heywood, 245 Kan. at 617-18; State v. Doile, 244 Kan. 493, 503-04, 769 P.2d 666 (1989). K.S.A. 21-4601 sets forth the Kansas policy in sentencing a defendant. The trial court must observe this policy during sentencing. Failure to mention K.S.A. 21-4601 and the policy contained therein on the record is not error as long as, from the entire record, it becomes clear that the trial court considered the provisions of K.S.A. 21-4601. State v. Johnson, 255 Kan. 156, Syl. ¶ 5, 872 P.2d 247 (1994).
It is clear from reading the record that, while not specifically addressing K.S.A. 21-4601, the sentencing court considered its requirements. The presentence investigation report, which the sentencing court incorporated into its remarks at sentencing, included most areas (age, prior criminal record, reputation) defendant pointed to in his allegation of judicial abuse. The court thoroughly discussed the sentencing factors of K.S.A. 21-4606. Additionally, the court received numerous letters on defendant’s behalf and offered the parties an opportunity to review them before proceeding with the sentencing hearing.
We find no abuse of discretion on this issue.
SENTENCE CONVERSION
Defendant filed a motion seeking sentence conversion under K.S.A. 1994 Supp. 21-4724. The crimes with which defendant was convicted render him ineligible for sentence conversion under the statute’s limited retroactivity provision. Defendant asks that we declare this limited retroactivity provision constitutionally impermissible.
In Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 115 S.Ct. 149 (1994), like challenges were made to the constitutionality of the statute and the statute was upheld. Defendant contends Chiles was wrongly decided. If we adhere to Chiles, that case controls the outcome of this appeal. In State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995), we considered and rejected a similar challenge to Chiles. We adhere to Chiles which is controlling on this issue.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Byron Brittain, Maurine Rutschman, and First United Methodist Church, Inc., of Newton, appellants, appealed the granting of summary judgment in favor of the appellees on the grounds that the joint and mutual will executed in 1985 by Thomas W. and Ruby Ethel Howerton was contractual, that Thomas breached the contractual will by executing a new will after Ruby Ethel’s death, and that all property in the Thomas W. Howerton Revocable Trust was subject to the 1985 will. In a published opinion by Judge Brazil, the Court of Appeals affirmed the district court. Bell v. Brittain, 19 Kan. App. 2d 1073, 880 P.2d 289 (1994).
We have reviewed the briefs, arguments, and the record in this case, and we conclude the Court of Appeals was correct. We adopt the opinion of the Court of Appeals and affirm both the district court and the Court of Appeals. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a personal injury action wherein damages are sought from the Kansas Department of Social and Rehabilitation Services (SRS) for injuries received by a minor child during her placement in foster care. Summary judgment was entered by the district court in favor of SRS, and plaintiffs appeal therefrom.
The uncontroverted facts may be summarized as follows:
On December 1, 1986, defendants Shirley and Phillip Jamison submitted an application to the Kansas Department of Health and Environment for a license to conduct a family foster home. The application was investigated by an employee of SRS, and upon completion of the investigation the Jamisons were issued a license on December 15, 1986, by the Department of Health and Environment to operate a family foster home.
In July of 1987, the Jamisons received their first foster child, Maxy Kastl. On August 21, 1987, pursuant to a district court protective custody order, SRS received custody of the four children of Enid DyAnn Mitzner and Larry Mitzner. All four children were temporarily placed in the Jamison foster home that same day. Several days later, the two older Mitzner children were removed from the Jamison home and placed with a different foster family, but the two youngest children, Cxystal and Henry Mitzner, remained in the Jamisons’ care until October 16, 1987. In October of 1987, the Jamisons had three foster children residing with them: Mary Kastl, 16 years old; Crystal Mitzner, 2 years old; and Henry Mitzner, 9 months old.
On the afternoon of October 15, 1987, Mary Kastl was cleaning the bathroom in the Jamison home. Crystal Mitzner was also in the bathroom sitting on a potty chair. Mary was cleaning the toilet bowl with Sno Bol, an over-the-counter bathroom cleaner. The telephone rang, and Mary placed the bottle of Sno Bol on the ledge behind the toilet and went into the hall to answer the phone. When Mary returned to the bathroom very shortly there after, she discovered Crystal holding the Sno Bol. It appeared to Mary that Crystal had drunk some of the Sno Bol, because the liquid was running down Crystal’s chin. Mary then took Crystal into the kitchen and gave Crystal a drink of water and some milk. Phillip Jamison then entered the house, and Crystal was taken to the hospital. As a result of this incident, Crystal suffered severe permanent injuries to her mouth, throat, esophagus, trachea, and lungs.
On October 13, 1989, Enid DyAnn Mitzner, Crystal Mitzner’s natural mother, and Crystal Mitzner, by and through her guardian ád litem, Patrick S. Bishop, filed suit against the Jamisons and SRS. Summary judgment was entered in favor of SRS on April 1, 1991. The basis for that determination was the district court’s determination that the Jamisons were independent contractors rather than employees of SRS. On February 15, 1994, on a friendly suit basis, judgment was entered against the Jamisons for $1,250,000. Thereafter, the plaintiffs duly appealed from the earlier entry of summary judgment on behalf of SRS.
The single issue herein is whether the district court erred in holding that the foster parents (the Jamisons) were independent contractors with SRS. No claim is made herein seeking liability against SRS on any basis other than vicarious liability through the alleged employer-employee relationship with the Jamisons.
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994); Hurlbut v. Conoco, Inc., 253 Kan. 515, 519-20, 856 P.2d 1313 (1993).
In Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991), we defined an independent contractor and stated how the determination is to be made. We held:
“An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of die control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, Syl. ¶¶ 3, 5, 689 P.2d 787 (1984).
"Where the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor. However, generally speaking, the question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts. Baker v. Petroleum Co., 111 Kan. 555, 561, 207 Pac. 789 (1922); 41 Am. Jur. 2d, Independent Contractors § 53.” 249 Kan. at 64.
In the case before us, no material facts are in dispute as to how and when the Jamisons became foster parents, SRS’s role in supervising foster care homes and in placing children therein, the rules and guidelines under which the foster care program operates, or as to how the tragic accident giving rise to this case occurred. The question then before the district court was, under these undisputed facts, what was the legal relationship between the foster parents and SRS. The district court held the foster parents to be independent contractors.
Ordinarily an employer is not held to be vicariously liable for the negligence of an independent contractor it hires. There is no claim herein that the facts of this case come within any exception to this general rule. Further, under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., an independent contractor is not a state employee. K.S.A. 1994 Supp. 75-6102(d). Thus, the finding of an independent contractor relationship entitled SRS to summary judgment in its favor as it was fatal to plaintiffs’ claim against SRS.
The plaintiffs contend the undisputed facts herein establish an employer-employee relationship and the district court erred in holding the foster parents to be independent contractors. We do not agree.
The plaintiffs rely heavily on Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990). At issue in Crawford was the propriety of the appellee agency’s determination that certain individuals were employees of the appellant rather than independent contractors and the agency’s assessment of unemployment contributions against the appellant. Twenty factors had been developed and utilized by the appellee agency in making such determinations. The plaintiffs herein use much of their brief to state and apply those 20 factors to the facts herein. Litde would be gained from including and analyzing each of these factors in the context of this issue herein. It is sufficient to say that plaintiffs contend that the amount of control exercised by SRS over the foster parents herein through the foster parent training required by SRS, its Foster Parent Handbook, its supervisory and placement powers, and its $6.22 per day payment for child care established an employer-employee relationship rather than an independent contractor relationship.
We find no merit in this argument.
One of the difficulties in discussing this case is the posture of the issue before us — is a foster parent an employee or an independent contractor? The foster parent’s actual status is rather unique and does not actually fit within either term. A more apt description of a foster parent would be more of an expense-reimbursed volunteer who must be licensed and who operates within certain guidelines. The $6.22 per day paid by SRS is considered reimbursement only and is not taxable income or even reportable income to its recipients. The foster parents are, therefore, not paid for their services, yet licensing is required. How ever, as the issue comes to us on the basis of employee vs. independent contractor, we will accept such designation, as it is sufficient for resolution of the issue.
Let us look more closely at what the foster care system is and is not. The foster care system is an alternative to the placement of minor children in state-operated institutions, staffed by state employees. Through the foster care program, children are placed in existing family units where, hopefully, the home structure will provide good care in a family based, noninstitutional setting. The amount of reimbursement to the foster parents is minimal. Within the broad guidelines established by SRS, the foster child is a member of the family even if his or her stay will be veiy temporary. We conclude an individual does not become a state employee by becoming a licensed foster parent. Limiting our choice of status to employee or independent contractor, the latter is the appropriate categorization of a foster parent.
This conclusion is consistent with the results reached in many other jurisdictions. The following three cases are illustrative thereof.
In Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (1991), a foster child was injured in an automobile accident and charged the foster mother with negligence. A South Carolina appeals court determined that the duties of the Department of Social Services were “nondelegable” and thus imposed vicarious liability upon the agency for the alleged negligence of the foster mother. Simmons v. Robinson, 303 S.C. 201, 213, 399 S.E.2d 605 (Ct. App. 1991). In reversing the appellate court’s judgment, the South Carolina Supreme Court held that the foster mother was not an employee of the State merely because she was a foster parent. The court found that the foster mother was a licensee and not an employee or independent contractor, and, therefore, her negligent conduct could not be imputed to the State. 305 S.C. at 431.
In Kern v. Steele County, 322 N.W.2d 187 (Minn. 1982), a foster child was injured while in the Kerns’ care, and her mother brought suit against them. The Kerns then brought a declaratory judgment action seeking a determination that they were employees of Steele County within the meaning of an insurance policy covering Steele County and “any employee.” The trial court so found, and the liability insurer of Steele County appealed. The Minnesota Supreme Court considered five factors in determining the existence of an employment relationship: “(1) The right of the employer to control the manner and means of performance of the work; (2) [t]he mode of payment; (3) [furnishing of materials or tools; (4) [c]ontrol of the premises where the work is to be performed; and (5) [fight of discharge.” 322 N.W.2d at 189. Each of these considerations, except the right of dischargé, indicated that an employment relationship did not exist, and the court concluded that the right of discharge alone could not overcome the weight of the other factors. The court, therefore, held that “the Kerns, in their capacity as foster parents, were not employees of Steele County.” 322 N.W.2d at 189.
In New Jersey Property-Liability Ins. Guar. v. State, 195 N.J. Super. 4, 477 A.2d 826 (1984), a foster child’s natural parents brought an action against the New Jersey Division of Youth and Famüy Services (DYFS) and its approved foster parents for personal injuries suffered by their child while in foster placement. The foster parents filed a separate declaratory relief action to obligate the State to assume their defense. The action was based on a New Jersey statute which required the Attorney General to defend any state employee sued for an act or omission occurring in the course of employment. After reviewing statutes governing child placement and the appropriate provisions of the New Jersey Tort Claims Act, the court found that the circumstances involving DYFS child placement “do not denote a degree of control by DYFS over foster parents sufficient to confer employee status . . . .” 19 N.J. Super at 13. Since foster parents were not state employees, the State was not required to defend and indemnify them against personal injury claims. 195 N.J. Super at 16.
The New Jersey court added another, and compelling, reason to find that foster parents are not employees of the State:
“Moreover, we cannot conceive that our Legislature intended that foster parents be State employees within the purview of the New Jersey Tort Claims Act. A legal theory conferring employee status on foster parents would not only ren der the State liable for injuries suffered by foster children while in the care of foster parents, but also would expose the State to liability for injuries suffered by third parties as a result of the foster parents’ torts. To adopt such a theory would' place an intolerable burden upon the State and might well diminish the beneficial effects of the foster parent program and compel a return to institutional care as the sole means of addressing the plight of abused and neglected children.” 195 N.J. Super. at 16.
We find no error in the district court’s determinations that: (1) the foster parents were independent contractors rather than employees of SRS; (2) SRS had no vicarious liability for the negligence of the foster parents; and (3) SRS was entitled to summary judgment on the plaintiffs’ claims against it.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his conviction of attempted first-degree murder, a class B felony in violation of K.S.A. 1991 Supp. 21-3301 and K.S.A. 1991 Supp. 21-3401, and sentence of 15 years to life imprisonment. Defendant contends the trial court erred in (1) denying his request to represent himself and (2) failing to instruct the jury on attempted involuntary manslaughter. This court has jurisdiction pursuant to K.S.A. 1994 Supp. 22-3601(b)(1).
On February 6, 1992, Preston L. Collins shot his ex-girlfriend, Ann E. Whedon, with a shotgun in the parking lot of a Silo appliance store in Overland Park, Kansas. Prior to the shooting Whedon and Collins had lived together for 15 years. She had recently left him because of his aggressive behavior and verbal abuse.
After Whedon had left Collins, he began stalking her. Approximately two weeks before the shooting, Collins forced her to return home at gunpoint. The next day, Whedon again left and obtained a Missouri district court protective order directing Collins to stay away from her. Whedon informed the police that she was afraid of Collins because he had threatened her, he had called her at work frequently, and she believed he was going to do something to her. Because of Collins’ threats, Whedon carried a .22 caliber pistol for her protection.
On the morning of Februaiy 6, 1992, Whedon drove to work for a company sales meeting and parked her truck in the Silo parking lot. After the sales meeting, Whedon returned to her truck and discovered Collins hiding in the back seat. Whedon observed the tip of a shotgun protruding from beneath Collins’ raincoat, ran into the parking lot behind another vehicle, and pulled out her pistol. Collins got out of the back seat of the truck, pulled out a .12 gauge shotgun from underneath his long coat, and came after her.
Whedon pointed the pistol at Collins. Collins brandished his shotgun and told Whedon to throw down her gun. Whedon threw down her pistol. Whedon begged Collins not to shoot her and agreed to go home with him or do whatever he asked.
Wielding his shotgun in one hand, Collins used his free hand to grab Whedon by the arm. In struggling to get away from Collins, Whedon either fell or was pushed to the ground. Collins fired three shots at point blank range. Collins’ first shot missed Whedon and struck a nearby car. After tire first shot, witnesses heard Whedon pleading for her life. Collins pointed the gun at Whedon’s face and fired his second shot. This shot dismembered Whedon’s right hand and left thumb and shattered the front window of a nearby store. Collins then stood directly over Whedon and aimed the shotgun at her. Whedon curled into a fetal position, pulling her legs up over her chest in an attempt to block the shot. Collins fired a third time, blasting into the back of Whedon’s left leg. Collins then ran from the area and eventually turned himself in to the police that evening. Collins was charged with attempted first-degree murder.
Collins’ defense consisted of his testimony and that of his daughter. Collins testified that he never had pulled a gun on Whedon or been physically or verbally abusive towards her. Collins testified that Whedon had previously threatened to kill him. Following Whedon’s threat on his fife, Collins stated that he had removed all guns from their house and had put the shotgun and ammunition under the back seat of the truck.
Collins testified that he had gone to the Silo store on the day of the shooting to retrieve his truck. Collins stated that the truck was registered in Whedon’s name so the purchase would go through on her credit. He stated that he intended to take the truck and call Whedon later. Once he got into the truck he discovered that Whedon had changed the ignition lock.
According to Collins, when he noticed Silo employees leaving the store, he climbed into the back seat to retrieve his shotgun. When Whedon opened the door of the truck and saw him, she pulled a pistol. Collins picked up the shotgun, stumbled out of the truck, and observed Whedon raising her pistol toward him. Collins ordered Whedon to drop the gun. When she did not do so, he fired at the gun at her right hand. Collins stated that the impact knocked Whedon to the ground, and the gun fell into her stomach. He said Whedon reached for the gun with her left hand. Collins claimed he fired the other shots in an attempt to scare Whedon, but not to hurt her.
Collins’ 13-year-old daughter testified that Whedon and Collins threatened each other and that Whedon had threatened to kill Collins several times. The daughter stated that she had witnessed Collins pull a gun on Whedon in an attempt to get her to come back home. The daughter testified that Collins had previously carried his shotgun in the truck when he took it to show a friend.
The trial court instructed the jury on attempted first-degree murder and the lesser included offenses of attempted second-degree murder, attempted voluntary manslaughter, and aggravated battery. The defendant’s request for an instruction on attempted involuntary manslaughter was denied. The jury found Collins guilty of attempted first-degree murder. Collins’ motions for new trial and for judgment of acquittal were denied, and he was sentenced to a term of 15 years to life. Collins’ motion to modify his sentence was denied. Collins appeals.
Right to Self-Representation
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.” § 10 of the Kansas Constitution Bill of Rights states, in relevant part, that “[i]n all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel.”
In Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), the United States Supreme Court held that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation. Following Faretta, this court recognized this constitutional right to self-representation in State v. Ames, 222 Kan. 88, Syl. ¶ 7, 563 P.2d 1034 (1977) (defendant has constitutional right to self-representation and may defend himself without coun sel when he voluntarily and intelligently elects to do so). See also State v. Cunningham, 222 Kan. 704, 707, 567 P.2d 879 (1977) (where the record fully established that the defendant’s choice of self-representation was knowingly and intelligently made, the trial court would have committed reversible error in depriving the defendant of his constitutional right to self-representation).
On February 11, 1992, Michael Bartee, the assistant public defender, was appointed to represent Collins. Bartee represented Collins at the April 22, 1992, preliminary examination. On August 6, 1992, the district judge granted Collins’ motion to dismiss his court-appointed attorney and Bartee’s motion to withdraw for good cause shown. Collins assured the judge he would retain his own counsel.
The district judge continued the case for several docket calls because Collins assured the judge that “his people” would hire an attorney. On October 30, 1992, the court appointed Kevin Harris to represent Collins. Soon thereafter, Harris filed a motion to withdraw as counsel for the defendant. The judge reluctantly excused Harris after Collins again assured the judge he would hire an attorney.
On December 17, 1992, the judge appointed Charles Droege to represent Collins. Trial commenced on March 29, 1993, and lasted until April 1, 1993. On the second day of trial, midway through the State’s presentation of its case, defense counsel informed the judge that Collins was not satisfied with his representation and wanted him to withdraw. Out of the presence of the jury, Collins stated that his defense counsel had failed to address certain discrepancies in the testimony of Whedon, that he was afraid counsel would not call his daughter to testily, and that his relatives, who were in the courtroom, thought defense counsel was not properly representing him.
The trial judge reviewed the history of Collins’ case, noting the deterioration of Collins’ relationship with his two previous attorneys and Collins’ repeated failure to hire counsel of his own choosing even though he had assured the court he would do so. The judge further noted the considerable experience of Charles Droege, Collins’ trial counsel, that Droege was quite competent to defend Collins, and that Collins had not expressed dissatisfaction until the second day of trial. The judge denied Collins’ motion and ordered that the trial proceed. Defense counsel then informed the court that Collins wished to represent himself. The trial judge denied Collins’ request.
The State resumed presentation of its evidence, but the trial was interrupted again when defense counsel advised the court that Collins had a heart condition and was experiencing chest pains. Collins was transported to the hospital for evaluation. Over Collins’ objection, trial resumed the following day after it was determined that Collins had not suffered a heart attack. After the State rested its case, defense counsel moved for a mistrial, citing Collins’ mental incapacity. The court denied the motion for mistrial. Defense counsel then renewed his motion to withdraw. The judge denied defense counsel’s request.
Collins contends that the court’s insistence that he be represented by counsel violated his constitutional right to represent himself in the criminal action and was an improper exercise of judicial discretion. The State points out that Collins did not clearly and unequivocally assert his right to self-representation until into the second day of jury trial and argues that a balancing of the factors enunciated in State v. Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993), demonstrates the trial court did not abuse its discretion in denying Collins’ request to proceed pro se.
Collins asserts that the facts in his case parallel State v. Lowe, 18 Kan. App. 2d 72, 847 P.2d 1334 (1993). Lowe, however, involved a pretrial request to proceed pro se. The Lowe court, following Faretta v. California, noted that a criminal defendant who prior to trial clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed of the dangers and disadvantages of self-representation so that the record will establish the defendant knew what he or she was doing and such choice was made “with eyes open.” 18 Kan. App. 2d at 74.
The Lowe court pointed out that in order to assert the right to self-representation, a criminal defendant must clearly and un equivocally express a wish to proceed pro se prior to trial. A defendant’s request to be relieved of counsel in the form of a general statement of dissatisfaction with an attorney does not amount to an invocation of the right to represent oneself. 18 Kan. App. 2d 72, Syl. ¶¶ 1, 2. The Lowe court reversed the defendant’s convictions after finding he was not afforded the opportunity to make the choice between proceeding with counsel or proceeding pro se. Lowe sets the standard when there is a clear and unequivocal request by the accused to represent himself or herself prior to trial.
More recently, in State v. Cromwell, 253 Kan. 495, which is factually similar to this case, the court addressed whether a defendant may assert his right to self-representation after trial has commenced. Cromwell had made known to the judge that he was dissatisfied with his appointed counsel early in the case. He repeatedly expressed distrust of his attorney and had requested that the court appoint substitute counsel. After pretrial 'motions were argued, the defendant asked to serve as “cocounsel” in his own defense. After expressing concern about the communication problems between defendant and his counsel, the trial court granted a three-week continuance. During that period of time, communication was reestablished between attorney and client. At a subsequent pretrial hearing, defense counsel told the court that defendant had asked if he could cross-examine a witness. The court indicated it preferred that defense counsel conduct the questioning.
At trial, the court denied Cromwell’s request to present the opening statement and his request to conduct the cross-examination of the State’s witnesses. Midway through the first day of trial, after three State witnesses had testified, defendant asked to represent himself so that he could question the witnesses. Cromwell told the court that the reason he wanted to cross-examine the witnesses was because he did not trust his attorney to ask the witnesses the questions that he wanted asked. The court informed the defendant that if his attorney would not ask questions he thought were important, that might be reason to allow the defendant to ask questions of the witnesses. The trial judge informed the defendant that complaints as to the form of the questions asked by his attorney were not sufficient reason to allow the defendant to ask the questions. Defense counsel indicated that for strategic reasons she had modified some of the questions defendant had requested. The trial judge denied defendant’s request for self-representation. 253 Kan. at 499-504.
On appeal, the Cromwell court held that although a defendant has a right to self-representation, that right is unqualified only if it is asserted prior to trial. The Cromwell court concluded that if this right is asserted after trial commences, a decision to grant or deny self-representation lies within the sound discretion of the trial court. In deciding whether to grant or deny self-representation to a criminal defendant after trial has commenced, die trial court should balance the alleged prejudice to the defendant with any disruption of the proceedings, inconvenience and delay, and possible confusion of die jury. It noted that the trial judge should also consider the reason for the request and the quality of counsel’s representation. 253 Kan. 495, Syl. ¶¶ 4, 5, 6. The Cromwell court held that the trial judge, in balancing the relevant factors, did not abuse his discretion in denying defendant’s motion for self-representation.
Collins’ assertions tiiat the trial court “failed to exercise any discretion whatsoever” and “completely failed to undertake any query” concerning Collins’ request to proceed pro se are incorrect. Collins ignores the court’s previous lengthy discussion of the history of Collins’ case, the considerable experience and quality of Collins’ trial counsel, and the court’s dissatisfaction with Collins’ reasons in considering Collins’ request that another attorney be appointed to represent him, which immediately preceded Collins’ request for self-representation. In his request to proceed pro se, Collins expressed no additional reasons beyond those previously rejected as insufficient to cause the court to allow Droege to withdraw. Under the circumstances, the trial court was not required to reiterate its reasons for refusing to allow the attorney to withdraw, moments later, when Collins requested to represent himself.
In this case, Collins did not assert his right to self-representation until the second day of trial, midway through the State’s presentation of its case. The parties had conducted voir dire; the State had made its opening argument; and four witnesses, including the victim, had completed their testimony. As in Cromwell, granting Collins' request for self-representation could well have been disruptive, caused undue delay, and confused the jury. The trial court did not abuse its discretion in denying Collins' request for self-representation.
Attempted Involuntary Manslaughter Instruction
Collins requested that the jury be instructed on attempted involuntary manslaughter as a lesser included offense of attempted first-degree murder. The trial judge refused, stating:
“The language of the instruction of involuntary manslaughter is that the defendant killed someone unintentionally. Obviously that is not an appropriate instruction for this case. It is a contradiction in terms as well. So although the defendant seeks that instruction, the Court finds it is inappropriate and will decline to give the same.”
Collins acknowledges that Kansas has not recognized the crime of attempted involuntary manslaughter. To support his claim that such a crime exists, Collins points out that the trial judge instructed tire jury on self-defense. Collins asserts that the attempted involuntary manslaughter instruction should have been given to allow the jury to consider whether he had a lawful claim of self-defense but had acted in an unlawful or excessive manner. The State responds that, under Kansas law, there is no such offense as attempted involuntary manslaughter.
The statute defining “attempt” at the time of the alleged offense provided:
“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 tire perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 1991 Supp. 21-3301(a).
The crime of involuntary manslaughter was defined as:
“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 tbe commission of a lawful act in an unlawful or wanton manner.” K.S.A. 21-3404.
Relying upon this court’s statement in State v. Gregory, 218 Kan. 180, 186, 542 P.2d 1051 (1975), that the “use of excessive force could be found to be an unlawful manner’ of committing the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter,” Collins argues that he was entitled to have the jury instructed as to attempted involuntary manslaughter. In Gregory, the defendant was charged with second-degree murder and convicted by a jury of involuntary manslaughter. The defendant claimed he shot the victim in self-defense. At trial, the defendant objected to the instruction on involuntary manslaughter, claiming the evidence would not support it. On appeal, Gregory broadened his argument, claiming that involuntary manslaughter was not a lesser included offense of second-degree murder. 218 Kan. at 182.
After finding that involuntary manslaughter was a lesser degree of the murder pursuant to K.S.A. 21-3107(2)(a), the court addressed whether giving the manslaughter instruction was justified by the evidence. Paraphrasing the manslaughter statute, the court noted drat it required (1) an unintentional killing without malice; and (2) that it occur while the defendant was either (a) committing some misdemeanor or (b) performing some lawful, as opposed to criminal, act in a manner which, in turn, was either (i) unlawful, or (ii) wanton. 218 Kan. at 183. In determining whether the jury could have found that the defendant had engaged in a lawful act but had done so in an unlawful manner, the court noted that if the jury found that the defendant was in fact being attacked, it would necessarily find that he was entitled to defend himself, and that in doing so, he was engaged in a “lawful act.” Nevertheless, noting that the self-defense statute, K.S.A. 21-3211, limited one’s self-defense to “that force which reasonably appears to be necessary for that purpose,” the court found that die involuntary manslaughter instruction was necessary in the event the jury found the defendant had used excessive force.218 Kan. at 184-86. The Gregory court concluded that sufficient evidence existed to support the involuntary manslaughter instruction.
Gregory is distinguishable from this case. Collins cannot use the ruling in Gregory that involuntary manslaughter is a lesser included offense of murder in support of his claim that an instruction on attempted involuntary manslaughter must be given under the circumstances of this case.
In a more recent case, State v. Robinson, 256 Kan. 133, 883 P.2d 764 (1994), the question was whether attempted felony murder was a crime. The trial court-had instructed the jury that it could convict the defendant of attempted first-degree murder if it found the shooting was intentional, deliberate, and premeditated, or felony murder if the shooting occurred during the commission or attempted commission of an aggravated robbery. The jury returned a general verdict of guilty to attempted first-degree murder, providing no indication as to whether it relied on the premeditation, or felony-murder theory. 256 Kan. at 135.
The Robinson court pointed out that Kansas does not recognize the crime of attempted felony murder and that the application of the felony-murder doctrine depends on the existence of an actual homicide. 256 Kan. at 136. The court noted that K.S.A. 1992 Supp. 21-3301 establishes three essential elements for an attempt: (1) the intent to commit the crime; (2) an overt act toward the perpetration of the crime; and (3) a failure to consummate it. The Robinson court noted that in order to convict a defendant of a crime, the State must show the commission of an overt act plus the actual intent to commit that particular crime. See State v. Garner, 237 Kan. 227, 238, 699 P.2d 468 (1985). It concluded that one cannot intend to commit an accidental, negligent, or reckless first-degree, premeditated, or felony murder. The Robinson court reversed the defendant’s attempted first-degree murder conviction and remanded for a new trial.
Collins confuses the issue by arguing that he intentionally acted in self-defense but that he did not intend to use excessive force in defending himself. Collins’ argument improperly assigns the object of his attempt as the use of unnecessary force rather than his act of self-defense.
Contrary to Collins’ assertion, the attempt statute requires that a person have the specific intent to commit the crime charged. Regardless of whether Collins intentionally acted in self-defense, he could not have intended to commit an unintentional killing, or involuntary manslaughter. Had the jury concluded that Collins was justified in using self-defense but that his use of force exceeded that necessary to defend himself against Whedon’s im minent use of unlawful force, it would have found Collins guilty of aggravated battery, as instructed.
The language of the attempt statute, K.S.A. 1991 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. Although it is possible for an actor to use excessive force in self-defense, the actor cannot unintentionally act in self-defense. We conclude that Kansas does not recognize the crime of attempted involuntary manslaughter.
Affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
The City of Dodge City (City) appeals from an order of the district court dismissing a criminal case against Gregory A. Downing on the grounds that the case was not brought to trial within the 180 days required by K.S.A. 22-3402(2). The City contends that the court erred by failing to deduct 30 days occasioned by the defendant’s motion for suppression of evidence. We agree, and reverse and remand for further proceedings.
The facts in this case are not disputed. The parties have entered into the following agreed statement of facts pursuant to Supreme Court Rule 3.05 (1994 Kan. Ct. R. Annot. 20):
“The defendant, Gregory A. Downing, was charged on February 28, 1993, in the Municipal Court of the City of Dodge City, having violated the City Or dinance against driving a motor vehicle under tire influence of alcohol. On March 19, 1993, he pleaded not guilty and was tried by the City Judge of the City of Dodge City on October 20, 1993. The City Judge found tire defendant guilty of driving a motor vehicle under the influence of alcohol.
“The defendant appealed his conviction by filing a Notice of Appeal in the District Court of Ford County, Kansas, on November 2, 1993.
“A pretrial conference was held on December 20, 1993, in front of District Judge Daniel L. Love. At that time, the defendant moved the Court to suppress the Intoxilyzer-Alcohol Analyzer test results obtained from the defendant by the Dodge City Police Department on February 28, 1993.
“Judge Love ordered tire parties to submit briefs on the issue of whether the Intoxilyzer test results should be suppressed. Judge Love ordered that those briefs be filed with the court by January 5, 1994. Both the plaintiff and the defendant filed their briefs with the Court, and the Court took the defendant’s Motion under advisement.
“On April 4, 1994, the District Judge entered his ruling, denying tire defendant’s Motion to Suppress the Intoxilyzer test results.
“On April 19, 1994, the City of Dodge City, through its attorney, Terry J. Malone, requested the District Court to schedule the case for trial. On April 25, 1994, the parties received notice that the District Court ordered the case be tried on April 29, 1994. The City Prosecutor orally informed the Court and the defense attorney that he would be unavailable for trial on April 29, 1994, and that the matter would have to be continued. The City Prosecutor contacted Judge Love on or about April 27 to inform him that he would not be available on April 29 for trial. The City Prosecutor informed Judge Love that he had informed attorney Leslie Hess of his unavailability and would be needing a continuance. Judge Love ordered a continuance based upon the status of the Court’s docket which was incorrect. The continuance was at the request of the City Prosecutor.
“The actual reason for the continuance was the unavailability of tire City Prosecutor to be at trial on April 29, 1994, and the City Prosecutor requested the continuance to May 25, 1994. The continuance was not because of other cases pending for trial on the Court’s docket.
“On May 6, 1994, the defendant filed his Motion to Dismiss with the District Court. As grounds for the Motion for Dismissal, the defendant alleged that he had not been brought to trial within 180 days pursuant to K.S.A. 22-3402.
“On May 13, 1994, the District Court Judge Daniel L. Love convened a hearing to hear arguments concerning .the defendant’s Motion to Dismiss. On May 13, 1994, the District Court Judge entered his ruling that the defendant was denied a speedy trial, and that the charge of driving under the influence of alcohol should be discharged.
“On May 23,1994, the City of Dodge City filed its Motion for Reconsideration and District Judge Daniel L. Love convened a hearing on May 27, 1994, to hear arguments on the Motion for Reconsideration. After hearing oral argu merits, the Court found that its previous ruling that the defendant was denied a speedy trial be affirmed.”
There is no dispute that the time taken to bring the defendant to trial was 204 days. The City argues that the district court erred by not charging the defendant with the time from the date of filing of his motion to suppress until the time set by the court for filing of briefs on the motion, a total of 16 days. The City also argues that the defendant should be charged with a reasonable period of time for the trial court to consider and resolve the motion to suppress. We agree and conclude that the 16 days, as well as 14 days for the court to resolve the defendant’s motion, are attributable to the defendant. The deduction of 30 days occasioned by application of the defendant establishes that on May 25, 1994, the scheduled trial date, he would have been brought to trial in 174 days, well within the dictates of K.S.A. 22-3402(2).
K.S.A. 22-3402(2) states:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” (Emphasis added.)
While the State has an obligation to insure that an accused is provided a speedy trial, delays which “happen as a result of the application or fault of the defendant” are not counted in computing the statutory speedy trial period under K.S.A. 22-3402(2). See State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994).
When a defendant, as in this case, files a motion to suppress evidence, any delay caused by the filing of the motion is necessarily the result of the application of the defendant. Under a plain reading of the statute, a reasonable time taken by the parties and the court to process the defendant’s motion to suppress should be charged to the defendant. This is the rule in Kansas as well as in many other jurisdictions. See State v. Prewett, 246 Kan. 39, 785 P.2d 956 (1990); State v. Roman, 240 Kan. 611, 731 P.2d 1281 (1987). See also Saffold v. State, 521 So. 2d 1368, 1371 (Ala. Crim. App. 1987); Smith v. State, 303 Ark. 524, 525, 798 S.W.2d 94 (1990); People v. Cabrera, 188 Ill. App. 3d 369, 371, 544 N.E.2d 439 (1990); State v. Blount, 519 So. 2d 153, 154 (La. App. 1987); State v. Sorensen, 243 Mont. 321, 331, 792 P.2d 363 (1990); State v. Oldfield, 236 Neb. 433, 439, 461 N.W.2d 554 (1990).
In Roman, we found that the six months it took the district court judge to decide a motion to suppress were not chargeable to the defendant. 240 Kan. at 613. In doing so, we noted that procrastination, whether it is prosecutorial or judicial, is not the fault of the defendant and that any party filing a motion has a right to assume that it will be acted upon expeditiously. 240 Kan. at 613. We also noted, however, that “[i]f the motion to suppress had been filed at the end of the 180-day statutory speedy trial period, a reasonable time (at most two or three weeks) for decision might well be charged to a defendant under appropriate circumstances.” 240 Kan. at 613.
In State v. Prewett, 246 Kan. 39, 43, 785 P.2d 956 (1990), we stated: “Furthermore, in Roman, the 7-day period between the defendant’s motion to suppress and the hearing on the motion was found properly chargeable to the defendant.” Actually, we did not specifically make such a finding in Roman, but instead simply noted that neither party disputed that the seven days were chargeable to the defendant. 240 Kan. at 612. Nevertheless, because a motion to suppress is filed at the urging of the defendant, the time between the filing of the motion and the time set by the court for submission of briefs, provided this is not an unreasonable period of time, is properly chargeable to the defendant.
Not all of the time taken by the court to rule on the motion to suppress should be chargeable to the defendant. Instead, when the motion is taken under advisement for a long period of time, only a reasonable time, i.e., no longer than two to three weeks, should be properly chargeable to the defendant. See State v. Roman, 240 Kan. at 613. We conclude that here the two weeks during which the defendant’s motion to suppress was taken under advisement should be chargeable to the defendant. Moreover, the 16 days granted the parties to file briefs on the defendant’s motion to suppress should also be charged to the defendant. Both periods of time are delays which happened as a result of the application of the defendant under K.S.A. 22-3402(2). A deduction of 30 days attributable to the defendant demonstrates that the defendant would have been brought to trial within the statutory period.
Reversed and remanded with directions to reinstate the complaint. | [
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The opinion of the court was delivered by
Six, J.:
This is a federal preemption case. The Lawrence Paper Company (LPC) seeks a judgment under K.S.A. 60-1701 et seq. declaring that a provision of the Kansas Workers Compensation Act (KWCA), K.S.A. 44-501 et seq., is preempted by the federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. (1988).
K.S.A. 44-511(a)(2)(E), the Kansas provision in question, requires that the value of discontinued employer-paid insurance and employer contributions to pension and profit-sharing plans be factored into the computation of disability benefits for injured employees.
The district court held for the defendants George R. Gomez, Workers Compensation Director, and the State, reasoning that ERISA does not preempt K.S.A. 44-511(a)(2)(E). The district court’s conclusion rested primarily on the following determinations:
“1. The challenged provision of the KWCA does not materially alter an existing administrative scheme under ERISA, nor does it affect the primary function of plaintiff’s benefit plans.
“2. Any relationship between the challenged provision of the KWCA and any ERISA-covered plan maintained by plaintiff is at most remote, tenuous and peripheral and does not invoke the preemptive or supersedure provisions of 29 U.S.C. § 1144.”
The issue is simply whether the way in which the KWCA, through K.S.A. 44-511 (a)(2)(E), defines an employee’s compensation for purposes of computing disability benefits is preempted by ERISA § 514(a), 29 U.S.C. § 1144(a) (1988). LPC seeks to prevent the State from adding the value of discontinued employer-paid insurance, pension, and profit-sharing benefits into the calculation of workers compensation benefits, which are based on an employee’s compensation at the time of injury.
Our jurisdiction is under K.S.A. 60-1709 (declaratory judgments) and K.S.A. 20-3017 (transfer from the Court of Appeals). We hold that the provisions of K.S.A. 44-511(a)(2)(E) do not “relate to” LPC’s employee benefit plans within the meaning of ER-ISA’s preemption provision, § 514(a), 29 U.S.C. § 1144(a), and consequently are not subject to preemption. We affirm the district court.
The preemption issue is one of statutory construction. Our standard of review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
FACTS
The material facts are not in dispute. LPC is a Kansas corporation that engages in interstate commerce. It is neither a religious nor a governmental entity. LPC maintains a health insurance plan, a 401(k) savings and profit-sharing plan, and a pension plan for its employees who choose to participate. The employee benefit plans are within the scope of ERISA, and none of the above-described plans are maintained for purposes of complying with the KWCA. Contributions to the plans are made on behalf of and for the benefit of eligible employees.
LPC is a self-insurer under K.S.A. 44-532. It maintains self-insured status solely for purposes of complying with the KWCA.
DISCUSSION
ERISA preemption is a question of federal law. Decisions of the United States Supreme Court, to the extent they are applicable, control. Ritchie v. Johnson, 158 Kan. 103, 117, 144 P.2d 925 (1944). If there is no controlling Supreme Court opinion, the weight of authority in the lower federal courts is considered persuasive. 158 Kan. at 118.
K.S.A. 44-511(a)(2)(E) and the KWCA
Under the KWCA, an injured employee ordinarily is entitled to receive benefits based upon a percentage of the employee’s “average weekly wage.” For permanent and total disabilities and scheduled injuries, compensation ordinarily is paid at 66-% percent of an employee’s average gross weekly wage. This compensation level is limited by statutorily established maximum levels of weekly compensation, by limits on total benefits paid, and by limits on the number of weeks for which benefits may be paid. K.S.A. 44-510c and K.S.A. 44-510d. The value of discontinued employer-paid life insurance, health and accident insurance, and employer contributions to pension and profit-sharing plans is encompassed in the “average weekly wage” calculation. K.S.A. 44-511(a)(2)(E) and (b). The term “wage” means the salary or hourly pay, plus “additional compensation.” K.S.A. 44-511(a)(3). “Additional compensation” includes, among other things, gratuities, cash bonuses, employer-provided room and board, and also the following:
“empbtjer-paid life insurance, health and accident insurance and employer contributions to pension and profit sharing plans. . . . Additional compensation shall not include the value of such remuneration until and unless such remuneration is discontinued. If such remuneration is discontinued subsequent to a computation of average gross weekly wages under this section, there shall be a recomputation to include such discontinued remuneration.” (Emphasis added.) K.S.A. 44-511(a)(2)(E).
The limitation that fringe benefits are added into the average weekly wage only if such benefits are discontinued is supported by logic and common sense. The limitation prevents double recovery by an injured employee whose employer continues to provide fringe benefits during the employee’s period of disability. See Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 10, 611 P.2d 161, rev. denied 228 Kan. 807 (1980) (noting that “the logical reason for the [K.S.A. 44-5l!(a)(2)(E)] provisos appears to have been a legislative attempt to add fringe benefits into a claimant’s average weekly wage only when such benefits have, in fact, been cut off from the claimant”).
The KWCA imposes few specific restrictions on how employers must carry out their statutory obligation to pay the required benefits. Generally, workers compensation payments must be made “at the same time, place and in the same manner as the wages of the worker were payable at the time of the accident,” subject to certain exceptions. K.S.A. 44-512. In addition, every employer must maintain adequate workers compensation insurance, qualify as a self-insurer, or belong to a qualified group-funded workers compensation pool in order to “secure the payment of compensation” to its injured employees. K.S.A. 44-532.
The KWCA does not mandate which payment-security option an employer must exercise. It does not mandate that employers set up ERISA-covered benefit plans for their employees or control the terms of any such plan should an employer elect to provide one. Employers may provide, refuse to provide, modify, or cancel any ERISA-covered benefit plan without violating any provision in the KWCA.
The Kansas Legislature, in K.S.A. 44-511(a)(2)(E), elected to define an employee’s compensation broadly to include fringe benefits such as employer-paid insurance, profit-sharing, and pension contributions. The provision challenged by LPC is neither new nor unique. It first appeared in the KWCA in 1974 and remains today in substantially the same form. L. 1974, ch. 203, § 18. Kansas’ approach with respect to fringe benefits is shared by many states. See, e.g., Ala. Code § 25-5-57 (1992) (“average weekly earnings” includes “allowances of any character,” which includes employer- paid medical and life insurance premiums); Alaska Stat. § 23.30.265(15) (1990) (“gross earnings” includes a percentage of the total employer contributions to a qualified pension plan in the two years preceding the injury); Fla. Stat. § 440.02(24) (1993) (“wages” includes employer contributions for health insurance for the employee).
Scope of ERISA
ERISA establishes comprehensive and uniform federal regulations for private employee pension and welfare benefit plans. District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 121 L. Ed. 2d 513, 518, 113 S. Ct. 580 (1992).
“Subject to certain exemptions, ERISA applies generally to all employee benefit plans sponsored by an employer or employee organization. § 4(a), 29 U.S.C. § 1003(a). Among the plans exempt from ERISA coverage under § 4(b) are those ‘maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws.’ § 4(b)(3), 29 U.S.C. § 1003(b)(3).” 506 U.S. 127.
LPC maintains employee welfare and pension benefit plans subject to ERISA, and such plans are not exempt under § 4(b)(3), 29 U.S.C. 1003(b)(3) (1988). The record is less clear, however, on the nature of LPC’s “plan” for paying workers compensation benefits. LPC’s counsel said in response to a question at oral argument that LPC pays workers compensation benefits through its own plan, administered separately from the ERISA-covered plans it offers employees, stating, “[tjheir [LPC] personnel director is over that type of administration.” LPC’s ERISA-covered health care plan provides support for counsel’s response. The plan specifically excludes from its coverage any “occupational” injury or illness “for which the individual is entitled to benefits under any workers’ compensation law.” Furthermore, in response to a request from defendants to admit that “there is no connection between [LPC’s] status as a self-insurer under the Workers’ Compensation Act and any employee benefit plan,” the LPC alleged no direct administrative connection. Rather, LPC asserted only the economic link between an increase in employer-paid ERISA fringe benefits and an increase in potential liability under the KWCA.
ERISA Preemption
The ERISA preemption provision, § 514(a), 29 U.S.C. § 1144(a), assures exclusive federal regulation of covered plans. The intention of Congress in passing § 514(a) was
“ ‘to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government . . ., [and to prevent] the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.’ Ingersoll-Rand, 498 U.S., at 142.” N.Y. Conference of Blue Cross v. Travelers Ins., 514 U.S. _, 131 L. Ed. 2d 695, 115 S. Ct. 1671, 1677 (1995).
An early ERISA preemption case noted that “[preemption of state law by federal statute or regulation is not favored In the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained/ ” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522, 68 L. Ed. 2d 402, 101 S. Ct. 1895 (1981) (quoting Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 67 L. Ed. 2d 258, 101 S. Ct. 1124 [1981]). A decade after Alessi, the Supreme Court seemed to abandon the principle of disfavored federal preemption in ERISA cases, instead emphasizing the broad language of § 514(a), superseding all state laws that “relate to” ERISA plans. Washington Board of Trade, 506 U.S. at 129-30. A close reading of Blue Cross suggests that the Court has backed away from, or at least tempered, the broad § 514(a) interpretation suggested in Washington Board of Trade. See Blue Cross, 115 S. Ct. at 1676-80.
Washington Board of Trade
We next address LPC’s contention that Washington Board of Trade controls the outcome of the instant case. LPC argues that Washington Board of Trade raised an “identical question” to the one now before us and answered it in favor of ERISA preemption. We do not agree either that the questions are identical or that Washington Board of Trade controls.
Washington Board of Trade preempted the District of Colum-' bia’s workers compensation law which, in 1991, added the following requirement:
“Any employer who provides health insurance coverage for an employee shall provide health insurance coverage equivalent to the existing health insurance coverage of the employee while the employee receives or is eligible to receive workers' compensation benefits under this chapter.” D.C. Code Ann. § 36-307(a-l)(l) (1992 Supp.) (Emphasis added).
The Greater Washington Board of Trade, a nonprofit corporation that provided health insurance coverage for its employees, challenged the “equivalenfi’-benefits requirement as preempted by ERISA. The United States Supreme Court agreed, holding that the District of Columbia law “specifically refers to welfare benefit plans regulated by ERISA and on that basis alone is pre-empted.” Washington Board of Trade, 506 U.S. at 130. The Court further said that “any state law imposing requirements by reference to such covered programs must yield to ERISA.” 506 U.S. at 130-31.
The Court also observed that “[p]re-emption does not occur, however, if the state law has only a ‘tenuous, remote, or peripheral’ connection with covered plans.” 121 L. Ed. 2d at 520 n.l.
Justice Stevens was the lone dissenter. He described the Court’s analysis as entering “uncharted territory” and having “open-ended implications.” 506 U.S. at 135-38. (Stevens, J., dissenting). Justice Stevens framed what he believed to be the issue as follows:
“The basic question that this case presents is whether Congress intended to prevent a State from computing workmen’s compensation benefits on the basis of the entire remuneration of injured employees when a portion of that remuneration is provided by an employee benefit plan.” 506 U.S. at 133 (Stevens, J., dissenting).
LPC correcdy notes that Justice Stevens’ statement of the issue in Washington Board of Trade seems also to target K.S.A. 44-511(a)(2)(E). LPC argues that the majority’s failure to expressly challenge Justice Stevens’ statement of the issue establishes its concurrence in his framing of it. Thus, LPC reasons that the outcome of preemption in Washington Board of Trade dictates the same result for K.S.A. 44-511(a)(2)(E). Had a majority of the Court ex pressly endorsed Justice Stevens’ statement of the issue, then LPC’s argument might be more persuasive, but no member of the majority joined any portion of the dissent. We limit our consideration of Washington Board of Trade to the majority opinion.
LPC next contends that preemption is required under Washington Board of Trade because “[t]he benefit levels of the Kansas Workers Compensation Act are tied directly to the monetary value of the ERISA-covered plans furnished by plaintiff.” In support, LPC cites a similar statement in Washington Board of Trade discussing the Court of Appeals’ opinion, which was affirmed. See 506 U.S. at 128-29.
It is true that under K.S.A. 44-5Il(a)(2)(E) there is a direct correlation between benefits provided to an employee under certain ERISA-covered benefit plans and the amount of disability benefits the employee may be eligible to receive under the KWCA. For every dollar that an employee, at the time of injuiy, receives in K.S.A. 44-511(a)(2)(E) fringe benefits which in many (but not all) cases will be paid through ERISA-covered plans, the employee is eligible to receive two-thirds of a dollar in disability benefits in the event the injured employee’s fringe benefits are discontinued. The same correlation exists with respect to wages, gratuities, cash bonuses, employer-provided room and board, and payments in forms other than cash. The more an employee earns prior to a compensable disability, the more the employee is eligible to receive (and the employer liable to pay) in workers compensation.
Significantly, the KWCA imposes no mandate for the continuation of ERISA benefits (or their equivalent) to injured employees. Kansas merely looks to the value of ERISA benefits, if discontinued, as one factor to be included in the definition of “wages” used to compute workers compensation benefit levels — no less, no more. If an employee has been paid a weekly cash wage of $100, but receives no other benefits, the employee’s “wage” for the purpose of determining workers compensation payment levels under the KWCA is $100. Similarly, under the KWCA, if an employee has received weekly compensation of $100 composed of $80 cash and discontinued ERISA benefits having a value of $20, the employee’s “wage” is again $100. LPC, however, urges that the $20 compensation attributable to discontinued ERISA benefits be ignored.
The connection between ERISA plans and workers compensation benefits is significantly different in K.S.A. 44-511(a)(2)(E) from the connection reviewed in Washington Board of Trade. The District of Columbia law required that any employer who provided health insurance coverage for an employee must continue, for up to 52 weeks, the “existing health insurance coverage” or its equivalent at the same benefit level that the employee had at the time of injury. 506 U.S. at 130. Thus, the District of Columbia law did more than merely attach a dollar value to a fringe benefit and include a percentage of that value in computing workers compensation benefits. The District of Columbia law essentially mandated the continuation of ERISA-covered benefit plans. In practical effect, the law prevented an employer from discontinuing ERISAcovered health insurance coverage for employees receiving workers compensation benefits. 506 U.S. at 130-33.
Several circuits have considered ERISA preemption issues since Washington Board of Trade. Certiorari has been denied in each case. The Third Circuit has expressed the following guidelines for determining if a law “relates to” an ERISA plan, either directly or indirectly:
“ ‘A rule of law relates to an ERISA plan if it is specifically designed to affect employee benefit plans, if it singles out such plans for special treatment, or if the rights or restrictions it creates are predicated on the existence of such a plan. . . .
‘This does not end our inquiry, however. A state rule of law may be preempted even though it has no such direct nexus with ERISA plans if its effect is to dictate or restrict the choices of ERISA plans with regard to their benefits, structure, reporting and administration, or if allowing states to have such rules would impair the ability of a plan to function simultaneously in a number of states.’ ” Keystone Chapter, Assoc. Builders v. Foley, 37 F.3d 945, 955 (3d Cir. 1994), cert. denied 115 S. Ct. 1393 (1995) (quoting United Wire v. Morristown Mem. Hosp., 995 F.2d 1179, 1192-93 [3d Cir.], cert. denied 114 S. Ct. 382 [1993]).
In Guidry v. Sheet Metal Workers Nat. Pension Fund, 39 F.3d 1078 (10th Cir. 1994) (en banc), cert. denied 115 S. Ct. 1691 (1995), the Tenth Circuit examined whether ERISA preempted a Colorado law exempting 75 percent of “disposable earnings” from garnishment, where “earnings” was defined to include
“compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, avails of any pension or retirement benefits, or deferred compensation plan, avails of health, accident, err disability insurance, or otherwise.” Colo. Rev. Stat. § 13-54-104(l)(b) (1987). (Emphasis added.)
Guidry held that despite the law’s “generic reference to pension benefits,” it was “nonetheless one of general application” that did not come within ERISA’s preemptive provision. 39 F.3d at 1086. Guidry reasoned that “[t]he Colorado garnishment exemption does not affect tire calculation of plan benefits, nor does it otherwise impact the administration of the plan or the relationship among the plan entities.” 39 F.3d at 1085.
In Foley, 37 F.3d 945, the Third Circuit considered whether ERISA preempted provisions of the Pennsylvania Prevailing Wage Act. The Prevailing Wage Act required public works contractors to pay employees the prevailing minimum wage, which was defined to include both a cash component and a benefits component. 37 F.3d at 950. The benefits component of the prevailing minimum wage was determined by “ '[fjringe benefits’ paid or to be paid, including payment whether made directly or indirectly, to the workmen for sick, disability, death, other than Workmen’s Compensation, medical, surgical, hospital, vacation, travel expense, retirement and pension benefits.” 37 F.3d at 950. Foley held that ERISA preemption did not arise simply because “some of the benefits the Secretary is permitted to count in calculating the prevailing wage will come from ERISA plans.” 37 F.3d at 957. The court continued: “[W]e do not believe ERISA requires a state to ignore the existence of ERISA benefits when considering overall remuneration to workers.” 37 F.3d at 957.
The Foley court distinguished the prevailing wage law’s “connection” to ERISA plans from the “equivalent” benefits law preempted in Washington Board of Trade. Foley explained that whereas the equivalent benefits requirement, and resulting legal right for employees, was “premised on the existence of ERISA plans,” the Pennsylvania prevailing wage law “could be meaningfully applied” even “[i]n the absence of ERISA plans.” 37 F.3d at 957. The court explained further:
“[T]hat statute [in Washington Board of Trade] referred only to the ERISA plan as the basis for the rights it accorded. But the listing of air ERISA plan benefit as an example of the factors to be calculated into a broader determination, such as a prevailing wage, is in and of itself inconsequential. We have held that ‘[w]here, as here, a reference to an ERISA plan can be excised without altering tire legal effect of a statute in any way, we believe tire reference should be regarded as without legal consequences for § 514(a) purposes.’ ” 37 F.3d at 957 n.17 (quoting United Wire, 995 F.2d at 1192).
Recently, the Eighth Circuit followed the reasoning of the Third Circuit’s Foley opinion in an ERISA preemption challenge to the Minnesota Prevailing Wage Law. Minn. Chapter of Assoc. Builders v. Dept. Labor, 47 F.3d 975, 979-80 (8th Cir. 1995).
Finally, the First Circuit found in Combined Mgt. v. Superintendent of Bur. of Ins., 22 F.3d 1 (1st Cir.), cert. denied 115 S. Ct. 350 (1994), that ERISA did not preempt a Maine law requiring employers to maintain a workers compensation plan administered separately from any multi-benefit ERISA-covered plan. Combined Management, Inc., (CMI) challenged the law, asserting a right under ERISA to continue providing workers compensation benefits through its multi-benefit ERISA plan. The First Circuit upheld the state law, reasoning, in part, as follows:
“Maine’s law, while having an economic impact on CMI, does not have an economic impact on the IAEA Plan itself. Clearly, any law that increases a company’s cost of doing business can be said to affect that business’s ability to provide benefits under its welfare benefit plan. This is not the same, however, as imposing burdens on the welfare benefit plan, itself. The increased cost or administrative burdens imposed by the state law must have some connection to the covered ERISA plan before the preemption analysis can come into play.”
The same reasoning applies to K.S.A. 44-511(a)(2)(E).
We do not read Washington Board of Trade as requiring preemption merely on the basis that a statute refers to ERISA benefits or plans. Each of the circuit courts in Guidry, Foley, Minn. Chapter, and Combined Mgt. carefully examined the actual effect of the challenged state law on any ERISA covered plans to decide whether preemption was required.
We agree with (1) the Foley court’s suggestion that merely listing ERISA fringe benefits as one factor to be included in a broader calculation is “in and of itself inconsequential” for § 514(a) pur poses, and (2) the Combined Mg. court’s recognition that ERISA preemption does not arise merely because of a state law that increases a company’s cost of doing business in a way that could be alleviated by ERISA preemption.
Blue Cross
Six days after oral argument in the instant case, the United States Supreme Court filed Blue Cross, 115 S. Ct. 1671. A unanimous court, speaking through Justice Souter, reversed the trial court, (813 F. Supp. 996 [S.D.N.Y. 1993]), and the Court of Appeals, (14 F.3d 708, 718 [2d Cir. 1993]), holding that the New York statute in question was not preempted by ERISA.
The Court of Appeals in Blue Cross, in affirming the trial court’s finding of ERISA preemption, relied on Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983), and Washingon Board of Trade. The Court of Appeals reasoned that ERISA’s preemption clause must be read broadly to reach any state law having a connection with, or reference to, covered benefit plans. See 115 S. Ct. at 1675-76. The Supreme Court disagreed. 115 S. Ct. at 1676.
The New York statute questioned in Blue Cross required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan. Blue Cross/Blue Shield, Medicaid, and HMO patients were billed at the hospital’s Diagnosis Related Group (DRG) rate. Patients covered by commercial insurance plans were billed at the DRG rate plus a 13% surcharge to be retained by the hospital. Commercially insured patients were also billed an additional 11% surcharge to be turned over to the State. The Court of Appeals decided that the surcharges were meant to increase the costs of certain insurance and HMO health care and held that this purposeful interference with the choices that ERISA plans make for health care coverage constitutes a “connection with” ERISA plans, triggering preemption. 14 F.3d at 719.
The Supreme Court disagreed, holding that New York’s surcharge provisions do not “relate to” employee benefit plans within the meaning of § 514(a) and, thus, are not preempted. Blue Cross charts its course into the ERISA preemption seas, observing:
“[W]e have never assumed lightly that Congress has derogated state regulations, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. [Citations omitted.] Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation, [citation omitted] we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” 115 S. Ct. at 1676.
As to tire meaning of the phrases “relate to” and “connection with,” Blue Cross instructs us to “go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” 115 S. Ct. at 1677. Blue Cross observes:
“Indeed, to read the pre-emption provision as displacing all state laws affecting costs and charges on the theory that they indirectly relate to ERISA plans that purchase insurance policies or HMO memberships that would cover such services, would effectively read the limiting language in § 514(a) out of the statute, a conclusion that would violate basic principles of statutory interpretation and could not be squared with our prior pronouncement that ‘[p]reemption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.’ ” 115 S. Ct. at 1679-80.
CONCLUSION
We hold that the connection between K.S.A. 44-511(a)(2)(E) and LPC’s ERISA plans is only “tenuous, remote, or peripheral.” The provisions of K.S.A. 44-511(a)(2)(E) do not “relate to” the plans within the meaning of ERISA § 514(a). Blue Cross and the recent federal Circuit Court ERISA preemption decisions refer enced herein support our conclusion that K.S.A. 44-511(a)(2)(E) of the KWCA is not preempted by § 514(a) of ERISA.
Affirmed.
Abbott, J., not participating.
Robert H. Miller, C.J., Retired, assigned. | [
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The opinion of the court was delivered by
Six, J.:
This case concerns judicial misconduct during trial. Defendant Bennie L. Plunkett, Jr., was found guilty of rape, K.S.A. 21-3502, and aggravated criminal sodomy, K.S.A. 21-3506(c). His jury trial involved two consolidated cases, similar in nature, but each arising from a separate incident and separate victim. Plunkett contends he was denied a fair trial because of judicial misconduct. He also asserts various trial errors.
Our jurisdiction is under K.S.A. 1994 Supp. 22-3601(b)(l) (a maximum sentence of life imprisonment was imposed).
Our inquiry focuses on whether the trial judge committed judicial misconduct by making prejudicial comments about Plunkett, demeaning defense counsel in front of the jury, or otherwise showing partiality to the State’s case.
Our standard of review is unlimited. The standard of judicial review refers to the legal scale used in weighing the sufficiency of the facts and circumstances giving rise to the alleged judicial misconduct. See Dillon Stores v. Lovelady, 253 Kan. 274, 275, 855 P.2d 487 (1993). We are required to decide whether Plunkett’s substantial rights to a fair trial have been prejudiced. The scope of judicial review refers to the evidence the reviewing court will examine in reviewing allegations of judicial misconduct during trial. Under the appropriate scope of review, we measure the allegations of judicial misconduct during trial by examining the particular facts and circumstances surrounding the alleged misconduct. ’Where a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial.” State v. Thomas, 252 Kan. 564, 570, 847 P.2d 1219 (1993). We are not able to effect such a construction in the instant case.
Plunkett’s cases were tried to a juiy. Plunkett’s claim of judicial misconduct rests on many statements, interjections, and rulings by Judge Robert D. Watson during the five-day trial. We find the misconduct sufficient to require reversal.
FACTS
Evidence was controverted. The State relied heavily on the testimony of the alleged victims, S.B., age 17, and C.D., age 20. Both episodes took place in Plunkett’s home, about six weeks apart. Both victims described similar 30- to 60-minute ordeals in which they were coerced by force and threats into oral, vaginal, and, in S.B.’s case, anal sex. Plunkett, on the other hand, described both incidents as consensual. The victims admitted to being close acquaintances of Plunkett before the alleged crimes. S.B. had kissed him at least once in the preceding few weeks, and C.D. had talked with Plunkett about having sex. The facts are disputed as to whether the relationships were consensual or criminal.
The jury’s impression of the credibility of S.B., C.D., and Plunkett had to be crucial to its verdict. A detailed recitation of the facts is not necessary to develop an understanding of the issues.
DISCUSSION
Plunkett contends that the cumulative effect of several instances of judicial misconduct during trial severely prejudiced his right to a fair trial. We agree. He cites State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987), in which we reversed a conviction because of judicial misconduct by Judge Watson. See also State v. Lewis, 252 Kan. 535, 539, 847 P.2d 690 (1993). Complaints concerning Judge Watson during trial appear in several published opinions cited in State v. Gadelkarim, 256 Kan. 671, 677, 887 P.2d 88 (1994).
We have identified principles to guide the demeanor of trial judges:
“The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant.”
“The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.” Hamilton, 240 Kan. 539, Syl. ¶¶ 3, 4.
Tury Orientation
During jury orientation, Judge Watson described the courtroom to potential jurors as a “stage” and the lawyers as “actors.” He then made the following comment:
“At the first table which is usually — I don’t know why, but it seems like prosecution and defense stakes out things in the courtroom. And I think you think you get habit bound, so do these lawyers. It just looks like all the time the prosecution tvill sit at the table closest to the judge and the defense tvill sit— defense tvill sit furthest away. Sometime 1 wonder about that, but I say, oh, but, Watson, don’t be thinking evil. You know, defense trusts you, too, you know, but anyhow, that’s what usually happens.” (Emphasis added.)
He referred to District Attorney Ñola Foulston as “your elected representative” and, “to me, as far as Sedgwick County goes, the most powerful individual there is in tire judicial system.” (Emphasis added.) He then introduced the prosecutor, an assistant district attorney, stating, “I’ve had the luck to have seen her come up through the ranks and she couldn’t be any better trained than if I trained her.” Judge Watson then described the summer intern procedure in the Sedgwick County prosecutor’s office, saying that the district attorney hires the “brighter students” to give them practical experience and said that “Miss Barnett, if I believe correcdy, was one of those.”
In introducing defense counsel, Judge Watson made no favorable comments on their abilities. He first introduced Nika Cummings, stating, “I’m sure glad she got married because I couldn’t pronounce her last name before she got married. She must have married that guy with that last name to relieve me so I could pronounce her last name.” He then introduced Kevin Loeffler, but apparently mispronounced his last name, whereon Judge Watson retorted, “I’ve known him a long time. I just didn’t know how to pronounce his last name. Now, there’s some things I can tell you about him, but that’s just between me and him.”
Plunkett contends that Judge Watson’s personal and favorable remarks about the prosecutor “could only function” to persuade the jury that the State’s allegations against him must be true. In contrast, the veiled comment about defense attorney Loeffler suggested to the jury, he contends, that the judge must have known something “improper or scandalous.” In addition, Plunkett argues that Judge Watson further disparaged defense counsel with his remark that the defense always sits away from him at trial, followed by “[sjometimes I wonder about that.” In sum, Plunkett asserts that the judge’s comments displayed to the jury a personal prejudice favoring the State over the defense and that this “undoubtedly prejudiced” his chances of a fair trial. The State replies that Judge Watsons comments “were not to be taken seriously,” that his “joking nature is apparent,” and that “[t]here is no possibility these comments affected the outcome of the trial.”
This first alleged instance of misconduct is serious. In Hamilton, we quoted from a prior opinion on the unique relationship between the judge and the jury:
“ ‘The trial judge occupies a high position. He presides over the trial. The jury has great respect for him. They can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word. It is therefore imperative that the trial judge shall conduct himself with the utmost caution in order that the unusual power he possesses shall not be abused.’ ” 240 Kan. at 545 (quoting State v. Wheat, 131 Kan. 562, 569, 292 Pac. 793 [1930]).
The potential combined effect of Judge Watson’s stated suspicion of defense counsel’s motive for sitting away from the bench, his praise for the prosecutor, his lack of praise for defense counsel, and his suggestion that he knew something he could not reveal about one of the defense attorneys put Plunkett’s credibility in question from the start, before the jury was even selected. The credibility of witnesses was paramount in deciding the outcome of the instant case.
fudge’s Question to Police Chemist
Police chemist Mary Ayers testified that she found no seminal material in the swabs taken from either S.B. or C.D. Ayers’ find: ing, of course, did not prove that the alleged victims had not been raped. Rather than leaving that point for counsel to argue in closing arguments, however, Judge Watson posed a question to Ayers at the conclusion of her testimony.
“I know the jury wants me to ask this. With those tests coming back negative, I heard you answer negative through all the tests that the defense just referred to and the District Attorney asked what were the results, it’s in regards to the color purple, I believe. I saw a movie named that. But, anyhow, with you having had to answer truthfully as a result of scientific tests, does that mean that you can say that the two individuals that provided those swabs was not raped?” (Emphasis added.)
Essentially, the question was slanted in favor of the State. Judge Watson prefaced his question with the comment, “I know the jury wants me to ask this.”
Where a trial judge deems it nécessary to cross-examine a witness, the judge must exercise great care to prevent giving the jury the impression that he or she is biased against a party and the judge must not forget the function of a judge and assume that of an advocate. See State v. Boyd, 222 Kan. 155, Syl. ¶ 1, 563 P.2d 446 (1977). The question did not elicit any information from the witness; it called for a legal determination. Ayers had not been asked to give any opinions regarding the scientific evidence to which she testified. The question simply identified and inherently emphasized an argument that the State was bound to make, and did make, during closing argument.
Response to Defense Counsel’s Objection to Judge’s Question to Ayers
After Judge Watson asked the question discussed above, defense counsel objected and a lengthy bench conference was held. When the jury trial resumed, Judge Watson attempted to cure any prejudice caused by his previous question by asking witness Ayers if her tests could prove that the young women were raped, to which the obvious answer was, “No.” Judge Watson added, after asking the question, “I truthfully looked for defense to offer that question .... I didn’t disagree with you, but I did see the need to ask that.” The defense again objected to the judge’s second question for the “exact same reasons” that it had objected to the first question. Judge Watson retorted, “Exact personal reason, no legal reason that you gave.”
Plunkett contends that the trial judge’s response to his counsel’s objection was discourteous and disparaging because it “implied to the jury that counsel was acting unprofessionally.” It is difficult to construe Judge Watson’s statement any other way than that defense counsel’s objection was being made for personal reasons rather than legal reasons. This statement was made in open court with the jury present. There is no way to know whether jurors heard the statement and, if so, whether they understood it. In any event, the statement was not warranted and supports a cumulative analysis of judicial misconduct. Also, the judge’s comment that he “looked for defense to ask that question” implied that he thought defense counsel had made an error in not asking it. These remarks may have been particularly prejudicial in light of the judge’s comments about the prosecutor and defense counsel at the beginning of the proceedings.
Comment to the fury Before Deliberations
After closing arguments, Judge Watson told the jury, “[Y]ou’ve heard all of the talk you’re going to hear about this case right now, except what you all generate in carrying out your burden that — the final result of which you have to do that you don’t like, no more than the Court is going to enjoy his final obligation in regards to this case.” (Emphasis added.) The defense objected to the judge’s statement after the jury had retired to the jury room for deliberations, contending that it implied the judge believed he would be sentencing the defendant and, thus, that the judge believed defendant was guilty. Plunkett contends that this comment, at a critical time of trial just before deliberations, was prejudicial. We agree.
It is difficult to know how the jury interpreted the comment. In its context, the State contends that it was intended “to impress upon the jury that the determination of guilt was a heavy burden to be taken seriously.” The comment came at the beginning of a long statement to the jury. However, in the case at bar, credibility is of dramatic importance. The State’s case rested on S.B. and C.D. being believed.
Plunkett also advances the following claims of judicial misconduct, which, we conclude, when considered as part of a cumulative analysis in light of the previous allegations discussed, furnish additional support for reversal.
Defense Counsel’s Opening Statement
Judge Watson interrupted defense counsel’s opening statement, although the State had made no objection. A lengthy hearing outside the presence of the jury followed. Judge Watson was apparently concerned that the defense was raising a situation that it could not prove with evidence. The defense was eventually allowed to go on with its opening as before.
Plunkett contends that this interruption was prejudicial because it needlessly interrupted his counsel’s opening, and the jury may have implied that his counsel had made some mistake. Although this interruption, alone, may not have substantially affected Plunkett’s right to a fair trial, it did appear to be unwarranted absent an objection by the State.
Cross-examination of S.B.
In cross-examining S.B., the defense was attempting to show that S.B. was confronted angrily by her grandmother when she returned home. Defense counsel asked S.B. if her grandmother “accused” her of being with a boy. Judge Watson interjected with a statement of his own belief of what the grandmother had done, based on S.B.’s prior testimony.
“Q: And at this point your grandmother accused you of being with the boy?
A: She said — she did not accuse me or nothing. She asked me had I been somewhere with some boy and I said, yes, I had and I told her what happened.
Q: Now, I think on direct in response to a question you said that your grandmother asked you have you been messing around with some boy?
A: Yeah, that’s what she asked me.
Q: So she kind of accused you of being with a boy, would that be correct?
A: No, she didn’t accuse me. She was—
THE COURT: It sounds like a question.
A: Yeah.”
Again, the Judge’s interjection here was unwarranted absent an objection by the State. Whether the grandmother confronted S.B. in an accusatory or merely inquisitive fashion was a potentially important question. The theory of the defense was that S.B. concocted a rape story out of fear of facing or disappointing her grandmother. The question of the character of the confrontation, and the larger question whether Plunkett’s theory was credible, were matters for the juiy to decide.
The question from defense counsel that drew Judge Watson’s comment may have been objectionable as asked and answered; however, the State did not object. Judge Watson’s interjection may have sent the message to the jury that he felt defense counsel’s questioning was improper.
Cross-examination of C.D.
Judge Watson interrupted defense counsel at one point during cross-examination of C.D. and said, “I’m going to let you go ahead because the District Attorney is not objecting, but I think you’re fully aware that you’re beyond direct, but you go ahead.” Plunkett contends that this interruption was unwarranted because defense counsel’s questioning was proper, and that this interruption disparaged his counsel in front of the jury. The judge interjected without any objection by the State.
This allegation is less severe than some others. Judge Watson made a similar comment to the prosecutor at one point in the trial, telling her that her cross-examination was so far beyond direct examination that she was in “left field now.” However, that comment was prompted by an objection by the defense.
Viewing the entire record, we *are unable to construe the judge’s remarks discussed in this opinion as unobjectionable. We conclude that Plunkett’s substantial rights to a fair trial have been prejudiced.
Several other issues are raised, including Judge Watson’s rulings on (1) witness examination, (2) closing argument, (3) written questions from two jurors, (4) multiplicity of the charges, and (5) sentencing. We are reversing and remanding; consequently, we need not decide whether the above ancillary matters complained of constituted error or abuse of discretion.
The judgment is reversed. The casé is remanded for further proceedings. | [
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The opinion of the court was delivered by
Davis, J.:
Andrew Juan Anthony, along with Artis Swafford and Joel Butler, was convicted in a joint jury trial of premeditated first-degree murder and aggravated robbery. Anthony was also charged with and convicted of sale of cocaine within 1,000 feet of a school and unlawful possession of a firearm. Anthony contends that the court erred by denying his motions for (1) change of venue, (2) severance of the counts of sale of cocaine and unlawful possession of a firearm, (3) separate trial from the codefendants, and (4) a continuance so that he could be represented by his chosen counsel. He also argues that the charge of unlawful possession of a firearm was duplicitous and that the district court erred in admitting certain hearsay statements. Finding no reversible error, we affirm.
Early in the morning on August 10, 1992, the Mid-America Inn in Salina was robbed, and the night clerk, Oliver Bigler, was murdered. Police were called to the scene when Audrey Wright, who arrived at the motel at approximately 4:50 a.m. to open the restaurant, found the door locked and was unable to summon the night clerk.
Officer Glen Soldán of the Salina Police Department testified that he arrived at the motel at 5:30 a.m. and went to check the back door. Approximately 25 feet from the back door, Soldán found a safe lying in the grass near a white plastic ice bucket and a canvas bag. Soldán testified that he attempted to enter the motel through the back door but the deadbolt lock was engaged.
Eventually, the manager of the motel arrived with a key to the motel office. Inside, police found the office area splattered with blood, and they discovered Bigler’s body lying in front of the desk. Bigler had sustained severe trauma and lacerations to the head, and police discovered a letter opener embedded in Bigler’s neck.
David Klamm, a special agent with the Kansas Bureau of Investigation, searched the office area. He found a broken and bloodstained BB gun, along with some pieces of wood that looked as if they had come from the stock of the gun. Kelly Robbins, a KBI forensics examiner, testified that she found a blood-stained brick. Officers also found what appeared to be a broken piece of a collapsible antenna. A police dog searched the wooded area east of the motel and discovered a handgun.
An autopsy revealed that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in the right ear canal. In the opinion of Dr. Norman Macy, death was caused by several severe blows which destroyed the front of the head and tore the brain in half. The head injuries were consistent with those that could have been caused by a brick or gun stock.
Anthony was arrested and charged with premeditated murder, felony murder, aggravated robbery, sale of cocaine within 1,000 feet of a school, unlawful possession of a firearm, possession of drug paraphernalia, and possession of cocaine with intent to sell. He was also charged with three other counts of sale of cocaine. Three other individuals, Joel Butler, Artis Swafford, and Jennifer Harmon, were also charged as a result of the murder and robbery. Anthony, Butler, and Swafford were ordered to stand trial jointly.
Anthony filed a motion to separate the sale of cocaine charges that occurred prior to the robbery and murder. The district court agreed to sever those counts. His motion to be tried separately from the codefendants on all charges was denied.
Anthony and codefendants Butler and Swafford filed a motion for change of venue, contending that pretrial publicity created a substantial likelihood that they would not receive a fair trial. In support of the motion, Randall Picking of KSAL radio in Salina was called and testified that his station broadcast a call-in show that dealt with the crime on the day of the defendants’ arrests. Raymond Pollard, vice-president of KSKG radio in Salina, was also called as a witness and stated that his station reported stories on the murder, including the names of the persons arrested. George Pyle, editor of the Salina Journal, testified that he published articles which had detailed the prior convictions of Anthony as well as stories which stated that Anthony’s neighbors were afraid of him because he and his friends carried guns and had all-night parties. Pyle also stated that the Salma Journal printed a story on the trial testimony with a headline stating that Anthony had planned the robbery and murder. Other radio news directors testified that they had run stories on the murder and suspects.
At the hearing on the motion to change venue the defendants presented tire testimony of Dr. James Franke, the director of the Survey Research Unit at the Kansas State University Institute for Social and Behavioral Research. Dr. Franke testified that he had conducted a public opinion poll to test the public’s knowledge of the case. The results of the survey indicated that out of approximately 366 persons surveyed, 97% had heard of the case and approximately 50% thought that the evidence was strong against all the suspects.
The district court determined that the defendants had failed to show prejudice to such a degree that it would be impossible to obtain an impartial jury. Accordingly, the court denied the motion.
Twenty days before the joint trial of the three defendants was to start, Anthony moved the court to allow his appointed counsel to withdraw and his retained counsel to file an entry of appearance. However, the defendant’s motion for retained counsel to represent him was contingent on the court granting a continuance so that retained counsel would have sufficient time to prepare for trial. Anthony retained Charles Atwell of Kansas City to represent him, but Atwell indicated he would not be able to render effective assistance of counsel if the trial started on time. The motion filed by Anthony detailed avenues that Atwell would pursue if he were allowed a continuance, including issues of mitigation and discovery.
The court affirmed Anthony’s right to his attorney of choice but refused to grant a continuance to allow the counsel to enter the case. The court noted that Anthony had already received one continuance, that codefendant Butler opposed the continuance, and that the joint trial was to commence in two weeks.
Trial commenced as scheduled on February 16, 1993. The State called Marilyn Jensen, who testified that she was traveling through Salina in the early morning hours of August 10, that she stopped at the Mid-America Inn around 1:00 or 2:00 a.m., and that an older gentleman, presumably Bigler, directed her to the Ramada Inn because the Mid-America Inn had no vacancy. The desk clerk at the Best Western Heart of America Inn, another Best Western in Salina, testified that the last contact she had with Bigler was at 2:00 a.m.
Officer Randy Jennings of the Salina Police Department testified that he had stopped Anthony at approximately 2:38 a.m. for running a red light. According to Jennings, Anthony drove off heading north after receiving a traffic warning. Earlier that evening, Jennings had arrested Orvin Mixon for driving while suspended. Co-defendant Artis Swafford was a passenger in the car and was allowed to drive Mixon's auto away.
Don Dean, general manager of the Mid-America Inn, testified that there were only two keys to the back door, one of which was kept at the office. He identified the safe found outside the door as the one that was kept in the office and the place where all the business proceeds and receipts were kept. He identified the white bag found outside as the bank bag where the small bills were kept.
Robert Taylor, a desk clerk at the Mid-America Inn, stated that in order to open the cash register, the button marked “room number” must be depressed. There had been two previous robberies of the motel that summer, and everyone who worked there thought it was an “inside job” because during the robbery the robber knew how to open the cash register.
Lieutenant Kiltz, along with other officers from the Salina Police Department, executed a search warrant for the home of Anthony and his mother. Kiltz found a .38 revolver inside Anthony's bedroom. Officer Mike Briggs found a battery operated walkie-talkie with a broken antenna inside an empty dog food bag. The antenna piece found at the crime scene matched the piece of the antenna found in Anthony’s trash can. Sergeant Sweeney found another walkie-talkie, a $10 roll of quarters, and a Tec 9 handgun.
The State called Kit Phifer, who testified that she knew the defendants and that on August 9 she was with friends Karen Renee Greer, Sunshine Daniels, and Stephanie Neustrom. According to Phifer, the other girls took her home early that evening. The next morning she called Greer. Phifer asked Greer if she knew about the robbery, and Greer indicated that she did. Later, Greer told Phifer that Anthony had showed her a key to the motel office.
Sunshine Daniels testified that she had known the defendants for about a year but that the night of August 9 was the first time that Greer had met Anthony. According to Daniels, after the group had dropped Phifer off, they went to Anthony’s house. Daniels testified that Greer told her the next day that she and Anthony had gone to a barbecue at Orvin Mixon’s house the night of the crime. However, Daniels said that Greer later told her that Anthony had planned the murder and told her about it. Daniels also testified that Greer also told her that she had sex with Anthony that night.
Stephanie Neustrom testified on behalf of the State that she had a sexual relationship with defendant Joel Butler. A few days after the crime, Neustrom talked with Greer, who told her that Anthony had left the house in the middle of the night to rob the Mid-America Inn.
The trial court overruled hearsay objections on the basis of the coconspirator exception to the hearsay rule. Neustrom was permitted over objection to relate that Greer told her Anthony had planned to rob the motel and injure the clerk and that Greer helped Anthony count money when he returned.
Greer was called as a witness for the State. She stated that after taking Daniels and Neustrom home, she and Anthony went back to his house and had sex. Sometime after 2:30 a.m., Anthony told her that he, Butler, and Swafford were going to rob a motel and kill the night clerk by shoving a sharp object down his throat. Anthony showed her the key they were going to use to get into the motel. Before Anthony left she saw some walkie-talkies, and Anthony showed her a sharp object which looked like a nail file. However, she testified that the object was not the letter opener found in Bigler’s body.
According to Greer, Anthony returned later and told her that he had been at Mixon’s house. However, he was carrying some money, and Greer helped him count it. Greer also testified that at one time she considered herself engaged to Anthony and that she had previously lied to police and given alibi testimony for him.
Ramona Keil was a night clerk at the Mid-America Inn. She had been on duty during the two previous robberies at the motel. She stated that on May 31, 1992, a man entered that motel, asked for a room, and then hit her on the head when she turned to look at the clock, and continued to hit her until she passed out. Eventually, she was thrown into the restroom, and she heard someone hitting the cash register keys. The person was unable to open the register, and nothing was taken.
Keil testified that on July 7 the front and back doors of the motel were locked. She was watching TV in a room next to the office when she heard glass break. When she went out into the lobby she saw the man from the first robbery, who proceeded to hit her with a black club. She was then kicked and thrown into the restroom. This time the assailant was able to open the cash register. Keil identified the defendant Swafford as the person who committed the crimes, although she had previously been unable to identify him.
Jennifer Harmon testified and admitted that she had been charged in the murder and robbery and had agreed to testify in exchange for the State's agreement to drop the murder charge. Harmon stated that she was 17 at the time of the murder and had known Anthony since she was 11 years old. She testified that Anthony had previously worked at the restaurant at the Mid-America Inn, which was owned by Harmon's grandparents. Harmon stated that she returned to Salina in 1991 after living in Topeka for some time, that she reestablished contact with Anthony, and that they began a sexual relationship in the winter of 1991. Harmon began working the 3-11 p.m. shift at the motel in April 1992.
After the first attempted robbery of the motel, Harmon went to Anthony’s home and codefendant Swafford was there. As Swafford left, he asked Harmon “how the bitch was.” Harmon testified that Anthony later told her that Swafford had gone into the motel and hit Ramona Keil on the head. Anthony stated that they had been unable to get into the cash register. Harmon told Anthony that the “room number” button had to be used to open the cash register.
Harmon stated that at one time she gave Anthony and Butler a ride to Junction City. On the trip, Anthony asked her to get him a copy of the keys to the motel. Butler also encouraged her to get the key for Anthony. Eventually, she agreed to leave the key where Anthony could pick it up and copy it.
Harmon stated that when she heard about the robbery and murder she suspected Anthony. She went to Anthony’s house and found him sleeping; when she asked how he could sleep after what he had done, Anthony told her that he had “no conscience.”
Detective Gerald Shaft of the Salina Police Department testified that as part of a drug sting operation the department had rented two apartments in a building in Salina. Shaft and another officer occupied one apartment, and Lamar Williams, a confidential informant, occupied the other. Williams’ apartment was wired with videotape and sound so that the officers in the other apartment could monitor drug transactions.
Shaft testified that Lamar Williams told him he had talked to Anthony prior to the crime and that Anthony had asked him to participate in a robbery and murder at a motel Shaft also testified that following the crime Anthony went to Williams’ apartment to sell some drugs. In a conversation that was both videotaped and audiotaped, Anthony told Williams about the crime and demonstrated how the murder had been committed.
Shaft also testified that he had interviewed Anthony after Anthony’s arrest. At first, Anthony denied any involvement. After being told of the existence of the tapes, Anthony became visibly upset, unable to believe that Williams was working for the police. When another officer asked Anthony why he would commit such a crime, Anthony stated, “Because it was peer pressure.” According to Shaft, Anthony also stated, “I’m going to get the Hard 40 for this.” Lamar Williams then testified. Williams stated that during the time the crime was committed he was working on drug buys for the police and knew all three defendants. According to Williams, Anthony told him he was going to rob the motel, Swafford was going to knock out the clerk, and Anthony was going to slit the clerk’s throat.
Williams testified that the night after the robbery and murder occurred, Anthony came to his apartment to sell drugs. While there, Anthony talked about the crime. Williams stated that Anthony had also talked about the previous robberies at the motel Anthony had told Williams that he had a girl that would do anything for him and that the girl made him a key to the motel. Anthony said that in the previous robberies, Swafford had gone into the motel and knocked out the clerk, Butler had been the lookout man outside, and Anthony had been the brains behind the operation.
Mike Marshall, a sergeant with the Salina Police Department, testified that he was in the upstairs apartment while Anthony was describing the crime to Williams in the downstairs apartment. He identified the videotape and audiotape as the tapes made that night. The videotape and audiotape were played for the jury. They are not a part of the record on appeal.
Kelly Robbins, a KBI forensics examiner, also testified on behalf of the State. She stated that she found blood on the seats of the Geo Metro owned by Anthony’s mother. There was also blood present on a T-shirt, a sock, and a pair of sweatpants found at Anthony’s residence. According to Robbins, the blood on the sweatpants was consistent with Bigler’s blood and could not have come from either Anthony or Swafford.
Chad Johnson, a worker at Aleo, also testified on behalf of the State. Johnson testified that during the summer of 1992 he had copied a key for Butler.
Anthony presented an alibi defense. James Anthony, Anthony’s brother, testified that Anthony had stopped by at 3:00 a.m. on the night of the crime to deliver a shirt that James wanted to borrow. According to James, he gave Anthony a t-shirt with bloodstains on it to wear home.
After deliberation, the jury convicted Anthony of premeditated first-degree murder, aggravated robbery, sale of cocaine, and unlawful possession of a firearm.
CHANGE OF VENUE
Anthony contends that the district court erred in denying his motion for change of venue because the pretrial publicity created so great a prejudice that he could not obtain a fair and impartial trial in Saline County. K.S.A. 22-2616(1) provides that the court shall, upon motion of the defendant, transfer the case to another county if it is satisfied that there is so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial.
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. State v. Lumbrera, 252 Kan. 54, 57, 845 P .2d 609 (1992). 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. 252 Kan. at 57.
As a threshold question, the State claims that Anthony waived the change of venue issue by failing to renew the motion at the conclusion of jury selection. In support of this contention, the State cites State v. Bierman, 248 Kan. 80, 88, 805 P.2d 25 (1991), and State v. Richard, 235 Kan. 355, 365, 681 P.2d 612 (1984). Neither of these cases stand for the proposition that a defendant must renew the motion immediately following voir dire or see the objection waived. Rather, each of these cases notes that the defendants chose not to renew their requests at any time after the completion of voir dire, indicating that nothing new had arisen during voir dire that would show problems with finding an impartial jury. See State v. Bierman, 248 Kan. at 88; State v. Richard, 235 Kan. at 365. Anthony’s attorney renewed his request for change of venue the next day. We find no merit in the State’s argument that the motion for change of venue was waived.
Anthony argues that the nature of the pretrial publicity created overwhelming prejudice. It is true that the crime and the arrest of the defendants were highly publicized. It is also true that the Salina Journal published several stories which reported Anthony’s past brushes with the law as well as his active nightlife. However, media publicity alone has never established prejudice per se. State v. Grissom, 251 Kan. 851, 927, 840 P.2d 1142 (1992). The burden is on the defendant to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. 251 Kan. at 927.
Anthony presented a survey conducted by the Kansas State University Institute for Social and Behavioral Research in support of his motion. The survey consisted of an interview with 366 persons in the Salma area. It revealed that 97.5% of those surveyed had heard about the case and the suspects, and 49% of those surveyed felt that the evidence was strong against all four suspects, 15.8% of those surveyed felt the evidence was strong against some defendants and weak against others, and of those persons, 95.9% felt the evidence was strong against Anthony. Thus, 63.8% of the total surveyed felt the evidence was strong against Anthony. Of those surveyed, 18% felt that they could not be impartial if asked to serve on a jury, 9.3% felt it was unlikely they could be impartial, 24.3% felt that it was likely that they could be impartial, 29.9% felt that it was very likely that they could be impartial, and 18.6% had no opinion.
There were motions made by all defendants regarding individual voir dire. However, the district court denied the motions and determined instead that problems could be avoided by summoning different panels at different times to prevent contamination of the jury pool at large. Six separate panels of prospective jurors were summoned and questioned by the court and counsel. In denying the motion for individual voir dire, the court offered to revisit the motion if a problem occurred when picking a jury.
The record reveals that each of the defendants’ counsel asked questions regarding pretrial publicity, including whether the jurors had formed an opinion and, in the case of Anthony’s attorney, whether that opinion was strong against one or all three defendants. Of the first panel of 18 jurors, 5 jurors indicated that pretrial publicityhad led them to form an opinion, and they were dismissed for cause. The judge also asked questions of the juiy regarding pretrial publicity at juror orientation. In the second panel, Swafford’s attorney asked for a show of hands from those people who felt Swafford was guilty. The two persons who indicated they felt that he was guilty were dismissed for cause. All attorneys asked questions of the third panel concerning publicity. From the third panel, five persons said they had been affected by the pretrial publicity but only two of those five were asked to be stricken by the defense attorneys. Those two were stricken for cause.
On the fourth panel of 25 jurors, 12 felt that they knew a great deal about the case and had at least started to form their own opinions. Of those 12,10 were asked to be stricken for cause. Seven of those were stricken, but three who claimed that they would try to be impartial were left on. Both the judge and the attorneys asked questions about publicity. Of the fifth panel of 24, only 2 stated that they might have formed an opinion, and both stated that they could set that aside and be impartial. However, one was dismissed for cause. On the last panel of 25, only 2 expressed an opinion of the case, and they were dismissed for cause.
The court qualified 90 of the jurors for use on the jury panel. Each defendant then received 12 peremptory strikes, and the State received 36 strikes. The defense struck the three persons challenged for cause on the third panel that had not been stricken for cause.
On the whole, the court questioned only 125 jurors to arrive at a jury pool of 90. The record discloses that the attorneys had few, if any, problems in questioning jury members about the effects of publicity. All but three of the challenges for cause because of pretrial publicity were granted, and the remaining three challenged venirepersons were taken off by peremptory strikes. The whole selection process lasted two days. Although jury selection was drawn out due to the district court’s precautions, it was not inordinately difficult to pass a pool of jurors for cause. No objections were made about the process following the selection.
We hold that the court did not abuse its discretion in denying Anthony’s motion for change of venue. In concluding our discussion of this contention, the following quote from State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987) is appropriate:
“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.”
SEVERANCE OF CHARGES
Anthony contends the court erred in denying his motion for severance of the sale of cocaine and unlawful possession of a firearm counts from the rest of the counts relating to the robbery and murder. Whether a defendant will be tried on separate charges in a single trial is a matter within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Cromwell, 253 Kan. 495, 511, 856 P.2d 1299 (1993). If reasonable persons could differ about the propriety of the trial court’s decision, this court will not find an abuse of discretion.
K.S.A. 22-3202(1) governs and provides:
“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.”
Anthony correctly argues that neither the sale of cocaine nor the unlawful possession of a firearm are of the same character as the robbery and murder charges. However, joinder may be proper under K.S.A. 22-3203(1) if die charges sought to be joined together with the ones already charged are based on two or more transactions connected together or constituting parts of a common scheme or plan. The sale of cocaine charge in this case is based upon what occurred when Anthony went to Lamar Williams’ apartment to sell cocaine. At the time, Anthony was selling cocaine to Lamar Williams, the police were taping Anthony’s statement which provided direct evidence of his involvement in the robbery and murder at the motel. Similarly, the unlawful possession of a firearm charge resulted from a search of Anthony’s car to uncover more evidence of the robbery and murder.
While the robbery and murder are separate and distinct charges from the sale of cocaine and unlawful possession of a firearm charges, all the charges are connected together. It would be very difficult to introduce evidence of the defendant’s incriminating statement regarding the robbery and murder without establishing the context within which the defendant’s statement was made. The statement was being taped because this was an undercover drug operation by the police, and the statement was made while Anthony was selling cocaine to the police undercover informant. Similarly, although somewhat differently, the gun was discovered during a search seeking evidence of the murder and robbery. The connection betwéen the selling of cocaine and possession of the weapon on the one hand and the motel murder and robbery on the other hand is real and substantial enough to allow joinder. At the very least, we believe that reasonable persons could disagree on the ruling of the trial court, and we do not, therefore, find an abuse of discretion in granting joinder.
SEPARATE TRIALS
Anthony also contends that the district court erred in denying his motion for severance of defendants. Severance lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice. State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987).
K.S.A. 22-3202(3) governs the disposition of defendant’s contention and provides that two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts constituting the crime or crimes. Two or more defendants may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment. State v. Hunter, 241 Kan. at 632-33.
Anthony argues that the primary defenses of Butler and Swafford were to blame him for the crimes and that severance of the defendants was necessary to preserve his right to a fair trial. Because both Butler and Swafford made Anthony out to be a liar and pointed to Anthony as the person who committed the crimes, their defenses were antagonistic. Antagonistic defenses, the defendant argues, require severance.
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). In this case, the defenses of Anthony, Swafford, and Butler are not antagonistic. All three relied on alibi defenses that were not mutually inconsistent. The only argument Anthony makes is that Butler and Swafford accused him of being a liar. However, the record demonstrates that Butler and Swafford made this accusation in order to refute taped evidence of Anthony implicating them along with himself in the crime. Simply because Butler and Swafford both maintained that Anthony was lying when he claimed they were with him in the commission of the crime does not lead to the conclusion that Anthony committed the crime. Anthony fails to establish prejudice from the failure to sever. We conclude that the district court did not abuse its discretion.
CONTINUANCE AND MOTION TO RETAIN COUNSEL
Anthony contends that the trial court denied him his right to retain chosen counsel by failing to grant a continuance so that his retained counsel could prepare for the case. Anthony argues that the court should have granted him a continuance because he had no confidence in his appointed counsel and was not seeking to purposely delay the proceedings.
The trial court did not refuse to admit Anthony’s retained counsel. The court instead refused to grant a continuance for the sole purpose of admitting the retained counsel. The granting of a continuance in a criminal case is within the discretion of the trial court, and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced. State v. Dunn, 243 Kan. 414, 427, 758 P.2d 718 (1988).
An essential element of the Sixth Amendment’s protection of the right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his or her choosing. Powell v. Alabama, 287 U.S. 45, 53, 77 L. Ed. 158, 53 S. Ct. 55 (1932). However, although an accused must be provided a fair opportunity to obtain counsel of his or her choice, this right cannot be manipulated to impede the efficient administration of justice. State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183 (1976).
In U.S. v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987), the 9th Circuit Court of Appeals stated: “When a criminal defendant’s constitutional right to secure counsel of his choice conflicts with the trial judge’s discretionary power to deny continuances, the reviewing court must balance several factors in determining whether the trial court’s conduct was ‘fair and reasonable.’ ” The court notes that these factors include: (1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimáte reasons exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant. 827 F.2d at 1322 n.2.
In this case, Charles Atwell, the attorney Anthony sought to retain, told the court that he could not enter an appearance in the case without first securing a continuance. This motion came on January 27, 1993, 18 days before the trial was scheduled to begin, and the case had been pending for 6 months. Atwell explained that funds had not been available to retain him until the first of the year and that due to the serious nature of the case he would not be able to competently represent Anthony on February 16. He stated that in order to fully prepare for the case he would need a continuance of approximately two months. Anthony had already asked for and received one continuance. Of the codefendants, Butler opposed the motion, and Swafford made no comment. However, Butler’s refusal to waive his right to a speedy trial would have resulted in a severance of the cases if a continuance had been granted.
Based on these circumstances, the district court did not abuse its discretion in failing to grant a continuance where the only reason for the continuance was to allow new counsel to enter his appearance. In reaching this decision, it should be stressed that the district court made no attempt to restrain Atwell from entering the case as Anthony’s attorney but only stated that it would not grant a two month continuance for that express purpose.
DUPLICITOUS CHARGE
Anthony contends that the charge of unlawful possession of a firearm was duplicitous in that it charged two separate and distinct offenses in a single count. He argues it was unclear whether the State was charging him with possession of the firearm found in his car, the firearm found in the woods near the motel, or the firearm later found in his room.
A complaint which charges two separate and distinct offenses in a single count is duplicitous. State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988). Duplicitous charging is bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury. 242 Kan. at 497. The problem with duplicity is that jurors are unable to convict of one offense and acquit of another offense when both are contained in the same count. State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975).
The complaint in this case is not duplicitous. It charges one distinct count, that of unlawful possession of a firearm, even though there are three possible firearms which the jury could have found that Anthony possessed. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving a multiplicity of ways and means of action and procedure. State v. Campbell, 217 Kan. at 778. In this case, the information states Anthony was in unlawful possession of a firearm on August 10 and 11, charging him with one crime.
HEARSAY
Finally, Anthony contends that the district court erred in admitting certain statements made by the victim, Oliver Bigler, to Dr. Clark, Bigler’s physician, prior to the robbery and murder. Anthony argues that this hearsay testimony was irrelevant to the question of guilt or innocence and served only to prejudice the jury.
The exchange of which Anthony complains occurred when Dr. Clark was testifying about Bigler’s health. The State asked if Bigler had ever mentioned what he would do if a robbery occurred in the motel where he was working. Anthony’s attorney objected to the question. The State told the court that it was offering the testimony to show Bigler’s state of mind and to corroborate evidence of the defensive wounds suffered by Bigler, both of which would go to the issue of premeditation. The court stated that it would overrule the objection as long as the testimony went to the victim’s general state of mind. Clark was then allowed to testify that Bigler told him he would give the robbers anything they wanted and would not resist.
The State contends that the statements were admissible under K.S.A. 60-460(d)(3). This exception to the hearsay rule states that in cases where the declarant is unavailable as a witness, statements made by the declarant at a time when the matter had been recently perceived by the declarant, while the declarant’s recollection was clear and made in good faith prior to the commencement of the action and with no incentive to falsify or distort, are admissible. K.S.A. 60-460(d)(3).
The problem with this argument is that the district court did not specifically make the findings mandated in K.S.A. 60-460(d)(3). Nevertheless, it is apparent that the testimony could have been admitted under K.S.A. 60-460(d)(3) because it was a general question as to what Bigler would do in the event of a robbery, made soon after a robbery had taken place, and obviously made before the robbery and murder of Bigler. In State v. Garner, 237 Kan. 227, 242, 699 P.2d 468 (1985), the victim’s prior statement that he would not sell his cattle was held to be admissible under K.S.A. 60-460(d)(3) in order to show the defendant’s story that the victim had sold cattle to him was false. The situation is the same in this instance, even though the district court did not explicitly state it was admitting the evidence under K.S.A. 60-460(d)(3). “[W]here the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987).
Anthony also makes an assertion that the evidence contained in the hearsay statements was irrelevant to guilt and served only to prejudice the jury and could be considered a “victim impact state ment." However, the evidence was clearly relevant to the issue of premeditation, especially in light of other evidence adduced at trial which tended to show that Bigler was killed because he refused to cooperate with the robbers. Therefore, we conclude that the district court did not err in admitting the evidence.
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The opinion of the court was delivered by
McFarland, J.:
Keith Basgall and Mark Green were each charged with the violation of a city ordinance relating to handicapped parking. The Wichita municipal court found the defendants not guilty based upon: (1) the fact that the access area in which defendants parked was not marked in conformity with state and federal requirements and (2) the portion of the ordinance defining access area was unconstitutionally vague. The City of Wichita appealed therefrom pursuant to K.S.A. 12-4601(b). The district court upheld the municipal court’s determination as to both questions reserved. The matter is before us on the City’s appeal of the two questions reserved pursuant to K.S.A. 1994 Supp. 22-3602(b)(3).
The facts are not in dispute and may be summarized as follows. On December 9, 1993, each of the defendants parked a motorcycle in the parking lot of a Wichita department store. Each vehicle was parked in a triangular area painted in a yellow striped pattern. The area so marked was adjacent to a duly marked handicapped parking space. The defendants were each issued a traffic citation alleging violation of § 11.52.020(25)(b) of the Code of the City of Wichita: Parking in Handicap Zone. This ordinance provides that it is unlawful:
“[f]or any person to stop, stand or park a vehicle so that it blocks access to a designated handicapped parking space, access ramp or access area. For the purposes of this section, ‘access ramp’ means that area of whatever dimension or configuration immediately adjacent to a designated disabled accessible parking space that is marked in any manner indicating it is to be used in conjunction with such designated disabled accessible parking space. ’Access area’ means that area of whatever dimension or configuration immediately adjacent to a designated disabled accessible parking space that is marked in any manner indicating it is to be used in conjunction with such disabled accessible parking space.”
Other facts will be stated as necessary for the discussion of particular issues.
The questions reserved are as follows:
I. Can a municipality, by its home rule or police powers, adopt handicapped parking legislation which is broader than state or federal law?
A. Is the City’s ordinance in conflict with state or federal law?
B. Have state and federal laws dealing with handicapped parking preempted this field of legislation?
II. Is the definition of access area contained in § 11.52.020(25)(b) of the Code of the City of Wichita unconstitutionally vague?
An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. We do not entertain a question reserved merely to demonstrate errors of a district court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessaiy for proper disposition of future cases. State v. Craig, 254 Kan. 575, Syl. ¶ 1, 867 P.2d 1013 (1994); State v. Ruff, 252 Kan. 625, Syl. ¶ 4, 847 P.2d 1258 (1993); State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980).
Whether or not this case has sufficient statewide importance to warrant entertaining the appeal is a close question. Ordinarily, the validity of a local ordinance has no such status. However, since other municipalities may now have or may adopt handicapped parking ordinances which may give rise to similar issues, we will entertain the appeal.
A city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature or Congress has clearly preempted the field so as to preclude municipal action. See Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 4, 654 P.2d 445 (1982).
The City concedes that the state and federal laws concerning handicapped parking, K.S.A. 1992 Supp. 8-1,128 and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (Supp. V 1993), respectively, are uniformly applicable to all cities. See K.S.A. 8-2001. Much has been written about conflicts among city ordinances, state statutes, and federal law, as well as preemption and home rule. This case falls so far short of raising a viable issue in any of these weighty areas that no purpose would be served by any lengthy discussion.
We note the following, however. K.S.A. 1992 Supp. 8-1,128 provided in pertinent part:
“(a) . . . [A]U designated accessible parking spaces shall be clearly marked by vertically mounted signs bearing the international sijmbol of access. Such signs shall be displayed with the bottom of the sign not less than 32 inches above the surface of the roadway.”
“(b) As of January 26,1992, any owner of private property available for public use establishing a new parking space or relocating an existing parking space for persons with a disability, shall conform to the following federal regulation: Section 4.6 of appendix A to part 36; nondiscrimination on the basis of disability by public accommodations and commercial facilities, 28 CFR part 36, as required by the Americans with disabilities act of 1990, 42 USCA 12101 et seq.” (Emphasis supplied.)
The parking spaces or access areas herein were not new parking spaces or relocated parking spaces and hence were not subject to the statute.
Likewise, tire federal law referred to by the Kansas statute does not apply to the parking space- access area herein. 28 C.F.R. § 36.401 (1994), which is in subpart D of Part 36 entitled New Construction and Alterations, provides:-
“(a) General. (1) Except as provided in paragraphs (b) and (c) of tins section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.”
Aside from new construction, Part 36 contains guidance for alterations to places of public accommodation. An alteration is a change to a place of public accommodation or a commercial facility, such as remodeling, renovation, reconstruction, etc., that is undertaken after January 26, 1993. 28 C.F.R. § 36.402(b) (1994).
Public accommodations are merely “urged” to remove barriers which would inhibit or prevent access or use by disabled persons, with first priority toward access:
“First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.” 28 C.F.R. $ 36.304(c)(1) (1994).
Thus, the Wichita ordinance was not in conflict with any federal or state law as to the particular access area in question. The ordinance also, however, covers newly constructed or relocated parking areas. If the access area had been such new construction, its dimensions would not conform to those required by federal law. Therein, access aisles must be at least 60 inches wide and 96 inches wide to be van accessible. 28 C.F.R. Pt. 36, App. A, § 4.1.2 (1994). It is appropriate to consider the purpose of the federal and state legislation, which is to assist disabled persons and require public accommodations to comply with certain requirements. If a public accommodation is not in compliance, then the owner thereof may well have some legal problems. Failure of the owner to be in compliance is no shield for individuals such as defendants. In fact, it would be contrary to the intent and purposes of federal and state legislation to hold, for instance, that there could be no penalty for parking in an access aisle that measured 58 inches wide when federal law required a minimum of a 60-inch width for such aisles.
The primary method of determining whether an ordinance is inconsistent with a state standard is to see whether the local law prohibits what the state law permits or the state law prohibits what the local law permits. Missouri Pacific Railroad v. Board of Greeley County Comrnrs, 231 Kan. 225, 227, 643 P.2d 188 (1982). Where a municipal ordinance merely enlarges on the provisions of a statute by requiring more than is required by the statute, there is no conflict between the two unless the legislature has limited the requirements for all cases to its own prescription. Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, Syl. ¶ 3, 492 P.2d 183 (1971).
The municipal ordinance herein enlarges upon but does not conflict with state or federal law. We conclude the district court erred in holding otherwise.
This brings us to the second reserved question. Is the ordinance definition of “access area” unconstitutionally vague? For convenience, the language the district court found to be impermissibly vague contained in § 11.52.020(25)(b) is repeated as follows:
“ ‘Access area’ means that area of whatever dimension or configuration immediately adjacent to a designated disabled accessible parking space that is marked in any manner indicating it is to be used in conjunction with such disabled accessible parking space.”
The district court adopted the detailed memorandum opinion of the municipal court. We will, however, simply refer to this opinion as being that of the district court.
It is clear that the district court was concerned over the fact that every row of parking spaces in this particular parking lot ended in a triangular, yellow-striped area. Thus, the yellow-striped area for which the ticketing occurred is identical with the ends of all other rows regardless of whether or not handicapped parking spaces were present. Looking at only the yellow-striped triangle, one could not determine that it was a handicapped parking access area as opposed to just the end of a row of regular parking spaces.
However, the area in question was marked by yellow striping. Parking places had no such marking. A person of ordinary intelligence should know that he or she should not park in an area so marked. Does the fact that some areas so marked are adjacent to handicapped parking spaces and others are not alter this conclusion? We believe not. If one parks in one of the marked areas which is next to a handicapped parking space, one is subject to a rather stiff mandatory fine. One is not subject to such a fine in a striped area not situated adjacent to a handicapped parking space. Does this equate to vagueness in the ordinance itself? We believe not.
The significance of parking spaces designated as to be used by disabled persons is known by individuals of ordinary intelligence even if such persons are not familiar with the laws under which they were created. A person will be subject to a hefty penalty if he or she parks therein without displaying proper accreditation showing a right to use the space. This same individual of ordinary intelligence would also be aware of the fact that such handicapped parking spaces, for obvious reasons, customarily have extra width or other features intended to permit easier access to vehicles parked in such spaces.
In Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 2, 834 P.2d 368 (1992), we stated:
“The standard for determining whether a criminal statute is vague is whether the language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.”
In reviewing the district court’s decision herein, it is clear that the court was also concerned over what it considered harsh and unfair results required by certain provisions of the ordinance as to mandatory prosecutions and the imposition of high fines. This is a matter going to the wisdom of enacting certain legislation, and that is not within the judicial role. As we stated in U.S.D. No. 380 v. McMillen, 252 Kan. 451, 461, 845 P.2d 676 (1993):
“ ‘The judiciary interprets, explains and applies the law to controversies concerning rights, wrongs, duties and obligations arising under the law' and has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law' may be unwise, impolitic or unjust. The remedy in such a case lies with the people.’ ” (Quoting Harris v. Shanahan, 192 Kan. 183, 206-07, 387 P.2d 771 [1963].)
One aspect of the district court’s rationale contains a curious inconsistency. The district court held the ordinance’s definition of “access area” constitutionally impermissible for vagueness yet stated:
“14. Were the handicapped space next to where this Defendant parked a properly marked “Van Accessible’ handicapped parking space as authorized by K.S.A. 1992 Supp. 8-1,128 (b) and the relevant portions of the ADA cited above, this Court would have no hesitation in ruling that the elements of the offense charged would have been proven and that the mandatoiy penalty be imposed.”
Query: If the ordinance’s definition of access area is too vague to pass constitutional muster, how could this result be altered depending upon which type of handicapped space the access area in question was adjacent to?
The district court apparently mixed the objective test for vagueness of a statute with the issue of whether the City had proven the ordinance had been violated under the particular facts herein. The district court’s emphasis is on the facts of the particular access area involved herein as opposed to the ordinance itself.
We do not find the ordinance’s definition of access area to be impermissibly vague. The district court’s real concern would appear to be that the particular area in question was not adequately marked as an access area under the ordinance. This issue is beyond the parameters of the questions reserved and is a purely factual determination which would be inappropriate for review herein even if properly raised.
We conclude the district court erred in determining the ordinance was impermissibly vague.
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The opinion of the court was delivered by
Holmes, C.J.:
Defendant Dennis Boyd appeals his juiy convictions of two counts of attempted second-degree murder, K.S.A. 21-3402 and K.S.A. 1992 Supp. 21-3301, and one count of battery, K.S.A. 21-3412. The Court of Appeals in an unpublished opinion filed July 22, 1994, reversed the convictions and remanded the case for a new trial based on the trial court’s failure to provide a sufficient response to requests by the jury for witness testimony. The Court of Appeals found that issue dispositive of the case and did not address several other alleged trial and sentencing errors asserted by defendant. We granted the State’s petition for review, and we now reverse the decision of the Court of Appeals and remand the case to that court for further proceedings.
The sole issue before this court on the petition for review is whether the trial court committed reversible error in responding to the jury’s request for a read-back of certain testimony. The facts will be greatly summarized and limited to those necessary to decide the issue before the court.
Defendant lived with Debra Moore and her three children: Antonio, age seven at the time of trial; Brittany, age five; and Tajiha, age four. Antonio and Tajiha were the biological children of Boyd. Chris Lockhart was the father of Brittany. On June 29, 1992, defendant struck Debra several times during a fight at their home. Brittany and Tajiha were also home at the time. Debra escaped through a bedroom window and ran to seek help. She returned some time later with two police officers and found the two little girls stabbed in the stomach. Both children were hospitalized with life-threatening wounds that would have been fatal absent emergency care. Brittany was in the hospital for about a week and Tajiha was hospitalized three to four weeks. Fortunately, both survived. Defendant was charged with two counts of attempted first-degree murder of the two girls and one count of batteiy for the beating administered to Debra.
Brittany was interviewed by Wichita police detectives twice while in the hospital, and she subsequently testified at the defendant’s trial. Detective Lawson, one of the detectives who interviewed Brittany in the hospital, also testified at trial. At the time of his first interview with Brittany, she was in intensive care and not veiy responsive. Later, at a second interview, she was much more alert and responsive to the officers’ questions.
Brittany testified that defendant stabbed her and Tajiha. Although she sometimes referred to both defendant and her natural father, Chris Lockhart, as “Daddy,” her testimony was clear that she was referring to defendant as the person who did the stabbing. There was no evidence or testimony that Chris Lockhart was involved in the crimes in any way.
The defendant claimed he was not present, did not live there, and knew nothing about the fight and stabbings. All of those assertions were clearly contrary to other credible evidence. He claimed an alibi but produced no alibi witnesses, although he maintained he had several.
During jury deliberations, the jury made the following request:
“Request the Transcript
“1. On the scene testimony of the officer that responded to the call and drove Debra to the House on June 29, 1992. (What the officer heard from the time he entered the house until EMS Transported the Children.)
“2. We request the transcript of Brittany’s testimony the first time she was interviewed in the hospital by detective? Lawson?
“3. The end of Brittany’s testimony as to who else was at the house when she was hurt?
“4. The closing remarks of the defense attorney as it relates to drug use. The paragraph before and after the statement.
“5. We would like to request Brittany’s opening comments up through the first 3 or 4 questions.
[Jury foreman’s signature]
“Did Brittany make a comment about being stabbed before she was asked the question.”
In response to the jury’s first request the judge had the court reporter read back a portion of the testimony of the officer who first accompanied Debra into the house and discovered the victims. The court denied the jury’s second request, stating: “Your request for a copy of Brittany’s transcript must be denied because it was never marked as an exhibit and the transcript itself did not become an exhibit or part of the evidence, so I cannot allow you to have that.” No response was made to the third request as it had been crossed out by the jury with “O.K.” written beside it before submission to the court. The judge denied request number four, explaining to the jury that the attorneys’ closing arguments did not constitute evidence admitted at trial. In response to inquiry five and the question following the jury foreman’s signature, the following testimony of Brittany was read to the jury:
“Q. Okay. Brittany, did you ever get hurt on your stomach; yes or no?
“A. (The witness shook her head.)
“Q. Can you answer out loud for me.
“A. No.
“Q. Okay. Did you ever have to go to the hospital?
“A. (The witness nodded.)
“Q. Yes or no?
“A. Yes.
“Q. Why’d you have to go to tire hospital?
“A. ’Cause I got stabbed.”
These were the first substantive questions asked of Brittany. All preceding questions were merely qualifying questions directed to her because of her young age. The defendant’s assertion of error hinges around the trial court’s response to requests two and five.
The defendant and his counsel were present during the entire proceedings and, after the jury was excused to return to the jury room, the court inquired:
“THE COURT: Record should reflect the jury’s departed. Mr. Loeffler, anything else we need on the record?
“MR. LOEFFLER: Nothing, your Honor.
“THE COURT: Anything else on behalf of the State?
“MS. BARNETT: No,-your Honor.
“THE COURT: All right. We’re in recess.
“MR. LOEFFLER: Thank you, your Honor.”
At no time during the read-back proceedings or thereafter did defendant object to the court’s answers or seek any clarification of the jury’s requests or of the responses given by the court. Likewise, the jury made no further inquiry of the court and was apparently satisfied with the information provided to it. Shortly after the jury had reconvened, it brought in a verdict of guilty to two counts of attempted second-degree murder and one count of battery.
We now turn to the issue of whether the trial court committed reversible error in its responses to the jury’s requests for a read-back of trial testimony. K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where . . . the 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 die prosecuting attorney.” (Emphasis added.)
The Court of Appeals in reversing the trial court relied heavily on our recent decision in State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994). Myers was before this court on a petition for review of an unpublished opinion of the Court of Appeals. In Myers, we adopted several portions of the Court of Appeals’ unpublished opinion and included them in our opinion. The defendant, before this court, also relies primarily on Myers. In Myers, the jury requested the police reports of three police officers or, in the alternative, copies of the testimony of the three officers. The juiy also requested the testimony of Dr. Logan, a defense witness. The trial court responded: “Here’s your answer. The answer’s no, please reread your instructions.” 255 Kan. at 4.
As noted by the Court of Appeals, the record did not reflect “ whether the defendant, his counsel, and the prosecuting attorney were present at the time the jury questions were asked and answered.’ ” 255 Kan. at 4. The Court of Appeals’ decision in Myers hinged largely on the fact that the record was silent on whether the defendant and his counsel were present. In discussing whether the defendant waived any objection to the response to the jury’s requests, this court stated:
“The Court of Appeals noted that the record did not reflect ‘whether the defendant, his counsel, and the prosecuting attorney were present at the time the jury questions were asked and answered.’ The State does not argue waiver. Myers failed to object to the response to the jury’s questions. The Court of Appeals reasoned that, even if the State had advanced such a claim, ‘we would not be able to consider it because we would have to assume, without knowing, that the defendant and his counsel were present and were given the opportunity to object. The record does not indicate anything either way on that issue. We are not comfortable foreclosing an important issue based on assumptions.’ ” 255 Kan. at 4.
In Myers, this court, in considering the jury’s request, adopted the Court of Appeals’ observation
“ ‘that the jury’s question was somewhat confusing. It asked for copies of die testimony. We realize at that point no transcript or copies of the testimony existed and the jury’s request could not be granted in a literal sense. The jury intended, by its question, to request a “read-back” of the testimony identified.
“ ‘However, terms such as “transcript” and “read-back” are lawyer terms and a lay jury would not necessarily understand the terms. There is also no reason to assume the jury understood that no transcript is available until the court reporter transcribes the testimony taken in open court, that this transcription will not occur unless requested, and that the request for transcription usually occurs for appellate purposes after the trial is concluded and verdict returned. We can neither expect nor require lay jurors to speak proper legalese, nor can we expect them to ask questions in that format.
“ We think a jury’s request must be interpreted on a common-sense basis. What is obvious about this jury’s request is that it wanted an opportunity to read or hear the requested testimony one more time before it reached a decision. It is far too simplistic to write off a jury’s request as asking only for a transcript which was not available. At the very least, the trial court was obligated to make a meaningful response to the jury’s question and advise it of its right to be given a read-back of the testimony.’ ” 255 Kan. at 5.
The issue of the propriety of reading testimony to a jury in answer to a jury’s request was approved long ago in State v. Logue, 115 Kan. 391, Syl. ¶ 1, 223 Pac. 482 (1924). In State v. Sully, 219 Kan. 222, 228, 547 P.2d 344 (1976), we stated:
“Under K.S.A. 22-3420(3) jurors may, after they have retired for deliberation, request further information as to the law or evidence in the case, but such requests are generally addressed to the trial court’s discretion. (ABA Standards Relating to Trial by Jury [Approved Draft, 1968] § 5.3). Tins rule has been applied in Kansas (see State v. Wilson, 169 Kan. 659, 220 P.2d 121).”
While K.S.A. 22-3420(3) places a mandatory duty upon the trial court to respond to a jury’s request for further information “as to any part of the law or evidence arising in the case,” the manner and extent of the trial court’s response rest in the sound discretion of the trial court.
In State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988), the defendant appealed his convictions of several crimes perpetuated against the victim, Donna. During deliberations the jury requested that the testimony of Donna and Redford be read to them. Donna’s testimony was unavailable due to illness of the court reporter. A different reporter, who took Redford’s testimony, was able to read back his testimony. The jury returned a verdict prior to hearing Donna’s testimony. On appeal the defendant claimed error because the testimony of both witnesses was not read to the jury. The court found no error and in doing so stated: “The means by which the court complies with a jury request to have testimony read back is subject to its discretion.” 242 Kan. at 668.
In Myers, we discussed the decisions in Redford and State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), which also applied the discretionaxy standard to the manner in which the court responds to the juiy’s requests. In doing so we stated:
“K.S.A. 22-3420(3) states that the testimony ‘shall be read.’ A trial court is required to accede to a juiy’s request to read back testimony. We do not believe, however, that such a strict construction forecloses all trial court discretion as to the manner of acceding to the request. Both Ruebke and Redford are consistent in the view that the trial court has the discretion to control the read-back. The trial court is free to clarify the jury’s read-back request where the read-back request is unclear or too broad, or the read-back would jeopardize the manageability of the trial. Discretion rests with the trial court to clarify and focus die juiy’s inquiry.” 255 Kan. at 8.
Thus, our cases are consistent that 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 the 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 juiy’s request or seeks additional clarification or limitation of the 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.
In Myers, we also considered the issue of waiver based upon no showing of any objection by the defendant. We stated:
“Does Myers’ failure either to object or show prejudice require that his convictions be affirmed? The mandatory directive in K.S.A. 22-3420(3) moves the trial court’s response out of the realm of discretion; consequendy, Myers need not show prejudice. No discussion among the trial court and counsel concerning the merit of the jury’s request is in tire record. The presence of Myers or his counsel at the hearing on the request should not be implied. Myers has not waived his right to raise the issue on appeal.” (Emphasis added.) 255 Kan. at 9.
Both the Court of Appeals and this court in Myers based their decisions not only on the fact that K.S.A. 22-3420(3) mandates a meaningful attempt to comply with the jury's requests, or at least seek clarification or limitation thereof, but also on the fact that there was no showing that the defendant and his counsel were present when the court refused to furnish the requested information. Both courts recognized that they would not imply that the defendant was present and, absent a showing that the defendant was present, the courts would not assume the defendant waived any objection to the trial court’s denial of the request. The converse of such holding is that under appropriate circumstances a defendant may be deemed to have waived any objection to a trial court’s response to a read-back request.
In the case now before the court the record clearly shows defendant participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22-3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965). Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the ruling while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.
As with most rules there may be circumstances which create an exception. We have recognized an exception to the requirement that an issue must be raised in the trial court to be considered on appeal in exceptional circumstances, where consideration of the issue is necessary to serve the ends of justice or prevent a denial of fundamental rights. State v. Edwards, 252 Kan. 860, 863-64, 852 P.2d 98 (1993).
The defendant argues exceptional circumstances are present in this case because he has been denied his fundamental right to a fair trial. The Court of Appeals in the instant case stated:
“It is clear that a defendant has a fundamental right to have his or her guilt or innocence adjudicated by a jury. The jury process cannot be compromised in any way. Myers, 255 Kan. at 6. The issue of failure to provide a requested read-back may be heard for the first time on appeal to prevent the denial of fundamental rights.”
Although we find no denial of defendant’s fundamental rights here, we will, out of an abundance of caution, consider the merits of defendant’s arguments relating to the sufficiency of the trial court’s responses.
Even if the record here supported a finding of exceptional circumstances, which it does not, the responses of the court to the jury’s requests do not constitute an abuse of discretion or justify a reversal of the convictions. The trial judge did not refuse to answer the jury’s requests as was done in Myers but to the eontraiy did respond, apparently to the satisfaction of both defendant, and the jury.
The Court of Appeals based its decision on the trial court’s response to the jury’s request number two for the “transcript of Brittany’s testimony the first time she was interviewed in the hospital by detective? Lawson?” The trial court explained to the jury that it was not entitled to the transcript because the transcript was not admitted into evidence. The Court of Appeals held the trial court erred in failing to recognize that what the juiy really wanted was a read-back of the testimony of the officer regarding the hospital interview. The officer apparently used a transcript from the interview during his testimony. While it is easy to read a cold record and speculate on what the juiy may or may not have wanted in its somewhat ambiguous request, it is a different situation entirely for the trial judge who has all the parties and the jury before him. Obviously, the trial judge had no problem with the request and responded to the jury. The jury did not seek further information, and the defendant did not object to the response when he had every opportunity to do so. The trial judge had the opportunity to observe the demeanor and reaction of the jury and the parties, neither of which is available to us from the printed page. While in hindsight it might have been better if the trial court had explained to the jury that it could have portions of the officer’s testimony read in lieu of the transcript of his interview with Brittany, we do not find the response as being so lacking or negative as to constitute an abuse of discretion or to be an infringement upon the defendant’s fundamental rights.
Request number one asked for the testimony of the police officer who first entered the house with Debra. The trial court had the reporter read to the jury the part of the testimony that the court deemed relevant to the request. Request number three did not require a response as it was stricken out by the jury and the court appropriately made no response. Request number four sought a portion of closing argument, and the trial court was correct in denying the request on the grounds that argument is not evidence in the case. In doing so, the court did explain its reasons to the jury. The defendant raises no serious argument concerning the trial court’s response to requests one and four or the lack of a response to number three. Request number five for Brittany’s opening comments and the subsequent question relating to her testimony about being stabbed were answered by reading to the juiy the first several substantive questions and answers, which also included the stabbing testimony. In oral argument before this court, defense counsel asserted that the response was erroneous because it did not comply literally with the jury request for “the first three or four questions.” Such an argument is totally frivolous considering the first four questions were limited to Brittany’s name and age.
The trial court did not refuse to answer the jury’s requests or give a totally inadequate or erroneous response and therefore did not breach the mandatory requirements of K.S.A. 22-3420(3) as held and discussed in Myers and as later recognized in State v. Bruce, 255 Kan. 388, 396-97, 874 P.2d 1165 (1994). As to the manner in which the trial court responded to the juiy requests, and the extent of such response, the test is whether the trial court abused its discretion. We find no abuse of discretion here. In addition, the defendant made no objection to the procedure followed or the responses given by the trial court and cannot now be heard to complain for the first time on appeal. For all the foregoing reasons we reverse the Court of Appeals.
As there were other issues raised on appeal which were not addressed by the Court of Appeals and were not included in the petition for review before this court (See Supreme Court Rule 8.03[g][l] [1994 Kan. Ct. R. Annot. 50]), we reverse the Court of Appeals and remand the case to the Court of Appeals for further proceedings on the other issues. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Kym E. Myers, an attorney admitted to the practice of law in Kansas. The complaint filed in case No. B-5040 was heard before a panel of the Kansas Board for Discipline of Attorneys. The essential facts, as determined by the panel, and the panel’s recommended discipline are not in dispute. Myers takes no exception to the report, findings, and recommendations of the Kansas Board for Discipline of Attorneys.
The formal complaint charges:
“2. On July 11, 1991, the respondent, Kym E. Myers, was convicted in' the District Court of Lyon County, Kansas, by a jury of Rape and Sexual Battery. Rape is defined in K.S.A. 21-3502 and is a Class B felony. Sexual Battery is defined in K.S.A. 21-3517 and is a Class A misdemeanor.
“3. On August 20,1991, the respondent was sentenced. For the crime of Sexual Battery, the respondent was sentenced to the Lyon County Jail for a term of six (6) months pursuant to K.S.A. 21-4502. For the crime of Rape, the respondent was sentenced to the custody of the Secretary of Corrections for a minimum term of not less than five (5) years and a maximum term of not more than twenty (20) years, pursuant to K.S.A. 21-4501(b). On that same date, the respondent’s Motion for Probation was denied and the respondent was placed in custody.
“4. On November 15,1991, the Kansas Supreme Court temporarily suspended the respondent from tire practice of law pursuant to Supreme Court Rule 203(b). In the order suspending the respondent, the Supreme Court noted that the crimes of Rape and Sexual Battery were of such a serious nature that the court concluded that the respondent must be suspended from the practice of law until there was final determination of the disciplinary proceedings pending against the respondent.
“5. On February 14, 1992, the respondent filed a Notice of Appeal from his convictions in the Lyon County District Court. On April 2, 1992, the respondent filed a Motion for Appeal Bond. The State filed a Reply in Opposition to Motion for Appeal Bond on April 13, 1992. On April 16, 1992, the appeal bond sought by the respondent was denied by the Court of Appeals.
“6. On September 3,1993, the Court of Appeals of the State of Kansas reversed the respondent’s convictions and remanded the case for a new trial. The Court of Appeals held that the trial court erred in its response to the jury’s request for certain information during the deliberations by the jury.
“7. On October 4, 1993, the State of Kansas filed a Petition for Review with the Kansas Supreme Court.
“8. On November 10, 1993, die Kansas Supreme Court granted the Petition for Review by the State of Kansas. On April 15, 1994, the Kansas Supreme Court upheld the Court of Appeals in its reversal of the District Court. The case was then remanded to the district court.
“9. The State of Kansas initially announced its intention to re-try the defendant on the same charges. The respondent was released from prison on June 6, 1994. On August 15, 1994, the respondent and the State entered into a plea agreement under which die respondent pleaded no contest to one (1) count of Aggravated Sexual Battery, in violation of K.S.A. 21-3518. Aggravated Sexual Battery is a Class D. felony. At the time the respondent was sentenced in this case, he had served thirty-tiiree (33) montiis and twelve (12) days. The court sentenced the defendant on the new conviction to the custody of the Secretary of Corrections for a period of not less than two (2) years and not more tiien five (5) years for the crime of Aggravated Sexual Battery. The court granted the defendant’s Motion for Probation, noting the fact that the respondent had already served a substantial period of time in prison.”
THE DISCIPLINARY PANEL'S FINAL REPORT
The following pertinent findings and recommendations were made by the panel:
“FINDINGS OF FACT
“Since the parties are in agreement as to the facts, and so stipulated, the facts are as contained in paragraph number [2] through 9 of the formal complaint on file herein and the panel adopts the same as if fully set out herein.
“Since the fact situation in this matter, to say the least is unusual, some of the stipulated facts need to be stated herein . The respondent was convicted of rape in the District Court of Lyon County, Kansas, on July 11, 1991. This violation concerned a young woman then age 17. The respondent was then sentenced to the custody of the Secretary of Corrections on August 20, 1991, and was incarcerated at the prison in Lansing, Kansas.
“On appeal the conviction of the respondent was reversed by the Kansas Court of Appeals on the basis of trial error and the Kansas Supreme Court upheld the Court of Appeals reversal of the conviction of this respondent.
“The respondent served 33 months and 12 days in prison on his conviction prior to being released on June 6,1994.
“The respondent and the state of Kansas, on August 15, 1994, entered into a plea agreement under which the respondent plead no contest to one count of aggravated sexual battery in violation of K.S.A. 21-3518, a Class D Felony, and was sentenced on the new conviction to the Secretary of Corrections for a period of not less than two (2) years and not more than five (5) years.
“The Court then granted the respondent’s motion and the respondent was placed on probation by reason the respondent had already served a substantial period of time in prison.
“The Kansas Supreme Court on November 15, 1991, temporarily suspended the respondent from the practice of law and this suspension is still in effect.
“The panel finds that by clear and convincing evidence that the respondent has violated the following rules of professional conduct:
“(a) MRPC 8.4(b) [1994 Kan. Ct. R. Annot. 379] in that the respondent reflected adversely on the respondent’s honesty, trustworthiness and fitness as a lawyer;
“(b) MRPC 8.4(g) in that respondent engaged in conduct that adversely reflects on the respondent’s fitness to practice law.
“FINDINGS OF FACT OF AGGRAVATION OR MITIGATION
“The respondent offered considerable evidence that before and during the time that the facts accrued that brought on the charges against him in Lyon County, Kansas, that respondent had a bad drinking problem and in fact was an alcoholic and had a form of mental disability and a dependency on alcohol which severely affected his judgment. That further at this period of time he was experiencing severe monetary problems.
“That since the respondent’s release from prison on June 6,1994, he has lived in the Johnson County, Kansas, area.
“That while the respondent was incarcerated in the state penal system, he had voluntarily entered a treatment program for alcoholics. That since his release from prison he has faithfully been a member of AA and the testimony from several witnesses was to the effect that he had made good progress for his alcoholism and seemed to be completely sincere in his efforts in the AA program.
“There was also testimony from the respondent that he believes he has turned the direction of his life around.
“There were no other material facts of aggravation or mitigation presented to the panel.
“RECOMMENDATION
“As pointed out in this report, this hearing involved an unusual set of facts.
“The panel deliberated for some time whether its recommendation should be either: (1) Indefinite suspension; or (2) disbarment.
“In either event respondent must follow the same basic procedure, if and when he desires to make application to have his license to practice law reinstated; with the exception that ünder indefinite suspension he may make such application within three years from the date of his suspension; and if disbarred respondent may make such application within five years from the date of his disbarment.
“In either event the panel recommends that the date of his suspension or disbarment be considered to have commenced on November 15, 1991, winch was the date the respondent in effect lost his license to practice law in the state of Kansas.
“The panel recommends that the respondent be indefinitely suspended from the practice of law.
“The panel makes the above recommendation instead of disbarment on the following reasons:
“1. The respondent was originally charged with a very serious crime, but his conviction was on a Class D Felony.
“2. That the respondent has already been very severely punished by being incarcerated in prison for a period of 33 months and 12 days.
“3. That the respondent has had no other criminal convictions or disciplinary offenses.
“4. That respondent seems to be very sincere in his efforts to turn his life around.
“5. There is nothing in the record to indicate that the respondent is a threat to society or that in the future he would engage in conduct that would adversely reflect on his fitness to practice law.
“The panel further recommends that the respondent pay the costs of these proceedings.”
As indicated above, Myers takes no exception to the findings and recommendations of the panel.
We find there is clear and convincing evidence establishing the violations found and enumerated by the panel. We adopt the findings of the panel, but a majority of this court are not in agreement with the recommended sanction of indefinite suspension. The respondent has been convicted of a serious felony offense that reflects adversely on his honesty, trustworthiness, fitness as a lawyer, and his fitness to practice law. We have considered the matters in mitigation but conclude that the actions of the respondent warrant disbarment. We agree, however, with the recommendation of the panel that the effective date of disbarment should be November 15, 1991.
It Is Therefore Ordered that Kym E. Myers be disbarred from the practice of law in the State of Kansas effective November 15,1991, and that the Clerk of the Appellate Courts strike his name from the role of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent and that respondent forthwith shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217). | [
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The opinion of the court was delivered by
Allegrucci, J.:
Rudolph and Lois Bauer brought this action to enjoin the City of Olathe (Olathe) from proceeding with a special assessment on their property. They own property abutting a stretch of Pflumm Road, which recently has been improved. Acting on a petition pursuant to K.S.A. 12~6a01 et seq., the General Improvement and Assessment Law, Olathe created an improvement district which includes the Bauers’ property. Pursuant to K.S.A. 12-692, landowners within the improvement district who dedicated right-of-way for widening the street were exempted from payment of special assessments for right-of-way acquisition. The amount assessed against the Bauers’ property includes a portion of the right-of-way acquisition costs. On cross-motions for summary judgment, the district court referred to its decision in Davis v. City of Leawood 257 Kan. 512, 893 P.2d 233 (1995), and granted injunctive relief on the ground, not briefed by the parties, that under K.S.A. 12-689 only city-at-large funds, not special assessments, may be used to improve a main trafficway. The appeal was transferred to this court pursuant to K.S.A. 20-3017.
The parties agree that there are no material issues of fact. The improvement district was established by city Resolution No. 90-1066. The resolution accepted the petition which had been filed by a majority of landowners within the proposed improvement district pursuant to K.S.A. 12-6a01 et seq. The Bauers did not sign the petition. The improvements requested were the widening of Pflumm Road from approximately College Boulevard to 119th Street and installation of curbs, sidewalks, street lights, storm drainage facilities, and control devices. In 1978, Olathe adopted Ordinance No. 691 designating Pflumm Road as a main trafficway pursuant to K.S.A. 12-685.
Resolution No. 90-1066 adopted the improvement district configuration, cost estimates, amount to be assessed to the district, method of assessment, and exemptions from the assessment proposed in the petition. An “average assessment” method was to be used in which assessed amount based on square footage is added to assessed amount based on footage fronting on the im proved street, and the sum is divided by 2. Areas dedicated for public right-of-way are excluded from this calculation. Estimated cost of the improvement was $1,478,788.77. $435,338.10 was to be assessed to the improvement district, excluding costs associated with right-of-way acquisition, and Olathe was to pay all costs in excess of $435,338.10. Olathe paid $135,515 for right-of-way acquisition, and the full amount was to be paid by the improvement district landowners who had not dedicated land necessary for widening the street. (The Bauers state that the amount was $135,517.25.) Landowners who dedicated or voluntarily conveyed land were exempted from payment of right-of-way acquisition costs. Olathe acquired the portion of the Bauers’ property necessary for widening the street through condemnation and paid compensation for it.
The Pflumm Road improvements have been completed. The proposed assessment against the Bauers’ property totals $55,543.39.
All property located within the city limits of Olathe and fronting on the improved portion of Pflumm Road was included in the improvement district except the Homestead Creek Subdivision. It previously had escrowed money to Olathe for the street improvements. The escrowed amount was based on $90 per front foot. The $435,338.10 assessed to the improvement district was figured on the same basis. The assessment levied against the Bauers’ property equals $135 per front foot. The district court found that the Bauers’ front foot assessment would be $96 if their share of right-of-way costs were excluded, and Olathe uses that finding in the statement of facts in its brief.
The parties briefed cross-motions for summary judgment on the propriety of landowners who dedicated right-of-way for widening Pflumm Road being exempted from payment of assessments for acquisition costs for the right-of-way. As previously noted, the district court decided this case on a legal theory which the parties had not argued or briefed. The district court disregarded the issues briefed and granted summary judgment in favor of the Bauers on the grounds the improvements to Pflumm Road must be financed under K.S.A. 12-689 and not by special assessments under K.S.A. 12-6a01 et seq.
Since the parties did not argue or raise the issue of using special assessments to finance improvements to Pflumm Road, no contention was made in the district court that Olathe had passed an ordinance designating Pflumm Road as a main trafficway pursuant to K.S.A. 12-685. However, in reaching its conclusion, the district court necessarily determined that Pflumm Road was a main trafficway within the meaning of K.S.A. 12-685. On appeal, Olathe complains about the district court’s finding that Pflumm Road is a main trafficway absent an ordinance designating it as such. However, on January 19, 1995, the Bauers filed a motion requesting this court to take judicial notice of Olathe Ordinance No. 691, enacted in 1978, which designates Pflumm Road from 11th Street to 151st Street as a main trafficway. At oral argument, Olathe acknowledged that designation was made as stated in the Bauers’ motion. Therefore, the trial court’s determination that Pflumm Road was a main trafficway under K.S.A. 12-685 is not an issue in this appeal.
As a matter of law, the district court concluded that all costs attributable to improvements to main trafficways must be paid by the city-at-large under K.S.A. 12-689, that the improvements benefit the city as a whole, and that K.S.A. 12-6aOÍ et seq. does not authorize cities to create improvement districts to finance improvement costs for main trafficways. Applying that law to the facts of this case, the district court stated: “[I]n approving the petition for the Pflumm Road improvement district, the City of Olathe mistakenly relied on our special assessment law as statutory authority to assess plaintiffs’ property. Accordingly, as the City’s improvement plan is ultra vires, the resulting assessments are illegal and should be set aside.”
In this case and in Davis, the district court reached several identical conclusions of law with regard to how the legislature intended the General Improvement and Assessment Law to be applied:
“8. K.S.A. 12-6a01 et seq. was intended by the legislature to be applicable only in instances where the improvement involved bestows a special or particular benefit on property in a limited area, i.e. for projects of less than city-wide scope.
“9. The justification for special assessments under improvement district financing is that the landowner is charged only for the special benefits conferred on die property by the improvement; consequently, the landowner suffers no pecuniary loss.”
In the present case, as in Davis, the primaiy issue is whether a city is precluded by K.S.A. 12-689 from financing the improvements to a main trafficway by special assessments pursuant to K.S.A. 12-6aOI et seq. Many of die arguments put forth by the parties to this case parallel diose in Davis.
Like the City of Leawood in the Davis case, Olathe complains that die district court’s concluding that the property owners had not received special benefit from the improvements usurped Olathe’s legislative authority to decide which property benefits and to what extent. Olathe contends that the usurpation is all the more egregious in this case, where the Bauers had never claimed that they received no special benefit. Instead, the Bauers’ complaints centered on the differential treatment of landowners who dedicated right-of-way and landowners who did not. The Bauers also complained of the differential treatment of the landowner who escrowed money and landowners who did not.
The Bauers and Olathe add their views and authorities to those discussed in Davis for and against the district court’s conclusion tiiat an improvement which is for the primaiy benefit of the city as a whole does not confer special benefit on property within a definable area within the meaning of K.S.A. 12-6a02. The Bauers weigh in on the side of the district court with the árgument that K.S.A. 12-685 et seq. (the Main Trafficway Act) and 12-6a01 et seq. are mutually exclusive. The Main Trafficway Act applies when the primaiy benefit is conferred on die city as a whole, and the General Improvement and Assessment Law applies when the primary benefit is conferred on identifiable properties, their theory goes. They cite Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976), which we discussed in Davis. Bell, more than any other Kansas opinion, supports the view diat special assessments are not suitable for improvements which primarily benefit the city as a whole. In Bell, improvements to Burlingame Road in Topeka were at issue. There, die court stated: “Where intersections, such as those in question, are designed primarily to control the pattern and flow of through traffic into and across the intersections of major thoroughfares, the benefit, if any, to adjacent property is obviously negligible in comparison to the city at large.” 220 Kan. at 419. As a result, the court enjoined assessment of any costs of the intersections against the benefit district. 220 Kan. at 420. It may be presumed, therefore, that city-at-large financing was to be used for the intersections. Thus, the improvements to Burlingame Road would have been financed by a combination of special assessments and city-at-large financing. The City of Topeka was proceeding under K.S.A. 13-10,115, which expressly provides for financing improvements with a combination of city-at-large funds and special assessments: “If only a percentage (which shall not be less than 50%) of the cost is paid by the city, the remaining cost shall be assessed against the adjacent real property.”
Olathe calls to the: court’s attention Garvey Elevators, Inc. v. City of Wichita, 238 Kan. 682, 714 P.2d 956 (1986). Olathe cites the case for the proposition that the Main Trafficway Act may be used in conjunction with the General Improvement and Assessment Law for financing improvements which benefit both the adjacent properties and the city as a whole. Garvey Elevators does not involve the Main Trafficway Act, but it certainly supports the principle that special assessment financing pursuant to 12-6a01 et seq. may be combined with city financing for a project which is primarily for the benefit of the city as a whole. In Garvey Elevators, the City of Wichita passed an ordinance creating a benefit district pursuant to K.S.A. 12-6a01 et seq. for construction of a center drain to cure drainage problems in the North Wichita Industrial Park. Owners of land in the benefit district argued that it was not proper to finance a part of the cost of the center drain project through special assessments because assessment financing was inconsistent with the city’s representation in applications for federal construction grants that the project was primarily for the benefit of the city at large and with “engineering reports to the effect that benefit to the property in the benefit district would not support charging the entire cost of the project to the benefit district.” 238 Kan. at 686. The court was unconvinced by this argument:
“This argument appears to ignore the facts herein. The benefit district is assessed only approximately one-third of the cost of the center drain project— with the balance paid through federal funds. The City applied for and received these funds based on benefits to the city at large. These facts are wholly consistent with the representation the project was primarily for the benefit of the city at large. The engineering studies indicate property in the benefit district would be benefited — but not to the extent of taxing the entire cost of the project to the property therein. It should be noted this issue does not involve the benefit-to-burden ratio on any particular property within the benefit district — rather, whether it was proper to create a benefit district to pay part of the project cost.”
238 Kan. at 686-87.
This reasoning in Garvey Elevators coincides with that of the federal court and the courts of the states of Pennsylvania, New Jersey, and Illinois in cases cited by the City of Leawood and discussed in Davis.
Olathe finds additional support for combining city and special assessment financing in various provisions of the General Improvement and Assessment Law. K.S.A. 12-6a01(f) defines “improvement district” as. “an area deemed by the governing body to be benefited by an improvement and subject to special assessment for all or a portion of the cost of tire improvement.” (Emphasis added.) K.S.A. 12-6a02 authorizes the governing body of any city to make
“improvements which confer a special benefit upon property within a definable area of the city and may levy and collect special assessments upon property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property by any such municipal work or improvement and to provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments as hereinafter provided.” (Emphasis added.)
K.S.A. 12-6a04(l)(f) and (2)(e) provide for an apportionment of costs between the improvement district and the city at large whether the improvement is initiated by the city or by petition. Subsection (I) sets out the notice and hearing requirements for city-initiated projects. It provides in pertinent part as follows:
“Before any contract is let or any work is ordered or authorized for an improvement, the governing body shall by resolution direct and order a public hearing on the advisability of the improvement. . . . Notice shall be given as to:
(f) proposed apportionment of cost (if any) between the improvement district and the city at large.”
Subsection (2) provides for improvements initiated by petition to be made without notice and hearing if the petition contains, among other things, “(e) the proposed apportionment of cost, if any, between the improvement district and the city at large.”
K.S.A. 12-6a07 provides:
“(a) The city may pay such portion of the cost of the improvement as the governing body may determine, but not more than ninety-five percent (95%) of the total cost thereof. The share of tire cost to be paid by the city at large shall be paid in the manner provided by K.S.A. 12-6al4.
“(b) If any property deemed benefited shall by reason of any provision of law be exempt from payment of special assessments therefor, such assessment shall, nevertheless, be computed and shall be paid by the city at large.”
K.S.A. 12-6al5 provides for the issuance of bonds for a city’s portion of financing. It states in pertinent part:
“The governing body of any' city proposing to issue general obligation bonds of the city for payment of any portion of the costs of any improvement authorized by this act may by resolution submit the question of issuing such bonds at a general or special election called for that purpose . . . .”
In addition, Olathe notes that K.S.A. 13-10,115, which provides for the issuance of bonds to improve major traffic streets in cities located in certain counties, states in pertinent part: “If only a percentage (which shall not be less than 50%) of the cost is paid by the city, the remaining cost shall be assessed against the adjacent real property.” This is the statutory provision which was before the court in Bell.
We conclude that our decision in Davis, that designation of a street as a main trafficway pursuant to K.S.A. 12-685 does not preclude financing improvements under the General Improvement and Assessment Law, is controlling here.
We next turn to the issue which was raised by the Bauers in the district court. There, they argued that including the costs of right-of-way acquisition in their assessment and not in the assessments against property owned by landowners who dedicated right-of-way was arbitrary and unreasonable and violated the due process and equal protection guarantees of the federal and state Constitutions. The district court, however, did not reach this issue. Nonetheless, Olathe urges this court to resolve the issue as a matter of law based on the findings of fact made by the district court. The Bauers join in advocating that this court should decide whether including the right-of-way costs was proper. They suggest that the district court’s decision invalidating the assessments could be upheld as the right result for the wrong reason.
In Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 863 P.2d 355 (1992), the material facts were stipulated to and all of the parties moved for summary judgment. In such a case, we noted that our review was de novo because we had the same opportunity to weigh the evidence as the district court. On appeal, the appellants argued that Missouri law applied. We responded:
“The Board of Control argues the law of Missouri should be used to resolve this dispute, listing all the parties located in Missouri and all the activities that occurred in Missouri. It states Kansas follows the rules of lex loci contractus and lex loci delicti.
“Since this issue was not raised in the district court, it is of questionable validity before us. See Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 738, 822 P.2d 617 (1991). However, because we are reviewing this case de novo we will consider the issue. The cause of action is for quiet title to real estate in Kansas. The law of the situs of the real estate is applicable.” 250 Kan. at 762.
Here, although this issue was not decided by the district court, it was briefed and argued. The facts were not stipulated to, but the parties agree that the material facts are not in dispute. We therefore will consider the issue on appeal.
At issue is $15,868.16 of the Bauers’ total assessment of $55,543.39. The $15,868.16 represents a portion of the right-of-way acquisition costs. No portion of the right-of-way acquisition costs were assessed against property of landowners who dedicated right-of-way for the improvement. The Bauers received monetary compensation for that portion of their property which was condemned for right-of-way. In its brief, Olathe states that their condemnation award was $20,900.00.
Olathe cites as authority for its assessment scheme K.S.A. 12-692(a), which provides:
“All lots or tracts of land abutting upon any existing or proposed street or highway, the owner or owners or predecessors in title to which, have dedicated or conveyed property necessary for the opening, widening or extending of such street or highway, may, at the discretion of the governing body of the city, be exempt, in whole or in part from the payment of special assessment to pay the cost of acquiring land necessary for such opening, widening or extension from owners of lots or tracts of land abutting upon such existing or proposed street or highway and failing or refusing to dedicate or convey such property.”
The Bauers contend that K.S.A. 12-692 cannot be used in conjunction with an assessment plan adopted pursuant to K.S.A. 12-6a01 et seq. They contend that 12-6a02 expressly prohibits it and that Kansas case law interpreting 12-6a02 and involving die use of alternative provisions of various public improvement statutes confirms the prohibition. The portion of K.S.A. 12-6a02 on which the Bauers rely is the introductory phrase of the following sentence: “As a complete alternative to all other methods provided hy law, the governing body of any city is hereby authorized to make, or cause to be made, municipal works or improvements which confer a special benefit upon property within a definable area of the city.” (Emphasis added.)
The cases cited by the Bauers include Bell, 220 Kan. 405; Dodson v. City of Ulysses, 219 Kan. 418, 549 P.2d 430 (1976); Davies v. City of Lawrence, 218 Kan. 551, 545 P.2d 1115 (1976); Board of Education v. City of Topeka, 214 Kan. 811, 522 P.2d 982 (1974); Snyder Realty Co. v. City of Overland Bark, 208 Kan. 273, 492 P.2d 187 (1971); and Giddings v. City of Pittsburg, 197 Kan. 777, 421 P.2d 181 (1966). It is not contended that Board of Education, Snyder Realty, and Giddings contribute more than a simple reiteration of the opening phrase of 12-6a02. In Giddings, for example, the court’s statement was in response to the argument that the benefit district configuration did not meet the K.S.A. 12-602 requirement for using the “center-of-fhe-block” assessment method. 197 Kan. at 780-81. Because 12-6a01 et seq. provides a complete alternative, including standards for the composition of the district, it was not necessary for the city to abide by the strictures of K.S.A. 12-601 et seq., the general paving law. It does not stand for the proposition that the general paving law “center-of-the-block” assessment method could not have been used in conjunction with initiation of the improvement project by petition, as provided in the General Improvement and Assessment Law. Thus, it cannot be said to support the proposition that 12-692 may not be used in conjunction with 12-6a01 et seq. Neither Board of Education nor Snyder Realty advances the Bauers’ argument. The central issue in each is whether the properties included in the benefit district were similarly benefited, as required by K.S.A. 12-6a08(a).
The Bauers’ argument is that the various acts under which municipalities may proceed with improvements are discrete, and they rely in particular on Bell and Dodson for the rule that the act under which the project is initiated governs all its stages. In Bell, the improvement of Burlingame Road was undertaken under K.S.A. 13-10,115 (Weeks), which provided for improvements to major traffic streets in cities located in counties of more than 120,000 people. In pertinent part, it stated: “If only a percentage ... is paid by the city, the remaining cost shall be assessed against die adjacent real property ... to the middle of the block on either side.” Because Burlingame Road meanders, the city devised fictional blocks on which to compose the benefit district. The court concluded that Topeka could not elect to proceed under 13-10,115 and then disregard its assessment method requirement. Concerning Dodson, the court stated the following in Bell:
“Dodson v. City of Ulysses, 219 Kan. 418, 549 P.2d 430, involved a paving project which was undertaken pursuant to die ‘old’ general paving law, K.S.A. 12-601, et seq. However, the City of Ulysses attempted to employ a front foot method of assessment. This method is an authorized alternative under the ‘new’ general improvement and assessment law, K.S.A. 12-6a01, et seq., but not under the ‘old’ law which provided only for assessments according to value. Concerning this departure from statutory provisions, we said in the Dodson opinion:
‘. . . When it initiated this project the city had a choice of statutes to follow. Once it elected to employ the “old” statute it was bound to follow it. . . .’ (p. 425.)
So, in the instant case, the city, once having elected to proceed under 13-10,115, is bound to follow the provisions thereof. It follows drat affected property owners are entitied to have their property assessed according to the statutory method, and a substantial departure from the method prescribed by the legislature will invalidate the assessment.” 220 Kan. at 410-11.
The next step in the court’s analysis was the inquiry whether the language of 13-10,115 mandated center-of-the-block assessments, and the court concluded that it did. Thus, in both Dodson and Bell, the act under which the city had elected to proceed specified what assessment method or methods could be used. When the cities used distinct assessment methods authorized in other acts, therefore, they contravened express provisions of the act they purported to follow.
The present case is distinguishable from Dodson and Bell in that Olathe’s use of 12-692 does not contravene any provision of 12-6a01 et seq. The General Improvement and Assessment Law does not specify how the costs of right-of-way acquisition are to be allocated. K.S.A. 12-6a08 provides:
“(a) The portion of the cost of any improvement to be assessed against the property in the improvement district as determined in K.S.A. 12-6a04, and amendments thereto, shall be apportioned against the property in accordance with the special benefits accruing thereto by reasons of such improvement. The cost may be assessed equally per front foot or per square foot against all lots and pieces of land within such improvement district or assessed against such property according to the value of the lots and pieces of land therein. The value of such property shall be determined by the governing body of the city with or without regard to the buildings and improvements thereon or the cost may be determined and fixed on die basis of any other reasonable assessment plan which will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited. The governing body may from time to time determine and establish by ordinance reasonable general classifications and formulae for the apportionment of the cost between the city and the area to be assessed, and the methods of assessing the special benefits, for various classes of improvements.
“(b) This section shall not be construed to limit the adoption of any assessment plan for any improvement that recognizes varying benefit levels and imposes assessments in relation thereto.”
The present case is factually distinguishable from Dodson and Bell in that assessment methods in those cases were transplanted from one statutory scheme for the making and financing of improvements into another. In the present case, the exemption provided by K.S.A. 12-692(a) was used by Olathe in conjunction with the General Improvement and Assessment Law. K.S.A. 12-692 is not a part of any one scheme by which municipalities make and finance improvements. It was enacted in 1970 as a free-standing statute which authorized municipalities to exempt certain property from special assessment to pay costs of acquiring land nec essary for widening streets and highways. See L. 1970, ch. 70. Since then it has been amended to add discretion for municipalities to do the same for storm sewers and drains. See K.S.A. 12-692(b).
The Bauers contend that Davies, 218 Kan. 551, directly supports their contentions and its facts “are remarkably similar to the facts involved in this case.” The facts of Davies which they have in mind are that the assessment plan was adopted pursuant to 12-6a01 et seq. and that the city exempted property where sidewalks already had been built at the landowner’s expense. This court invalidated the assessment plan and stated: “There is nothing in the Act here under consideration which authorizes the exemption of these properties from a benefit district.” 218 Kan. at 560. This statement does not, contrary to what the Bauers advocate, necessarily mean that an exemption authorized outside the General Improvement and Assessment Law may not be applied to an assessment plan formulated in accordance with 12-6a01 et seq. The composition of the benefit district in Davies was fraught with problems because the city exercised its creativity with little or no regard for legislative authorization. The city did not claim to have any statutory authority for exempting property with previously installed sidewalks. Nor did the city claim to have any statutory authority for planning sidewalks only on one side of only selected streets within the benefit district while assessing equally on a front-foot basis throughout. 218 Kan. at 559. This court concluded that the city’s plan is “such a radical departure” from what statutes and case law authorize as to constitute arbitrary action by the city. 218 Kan. at 562. If the city had been able to point to some free-standing statute which gave it discretion to exempt property with previously installed sidewalks, the court’s consideration of at least that aspect of the assessment plan may have taken a different turn.
Olathe also relies on Davies, and it brings a passage to the court’s attention in which the court quoted from 12-6a08 to the effect that costs may be fixed according to any reasonable plan which places substantially equal burdens on properties similarly benefited. 218 Kan. at 559. It is Olathe’s position that the non- dedicating landowners received the benefit of lowered right-of-way acquisition costs from the action of the dedicating landowners but did not shoulder the burden of loss of property without compensation. Thus, by burdening the nondedicating landowners with assessments for the costs of right-of-way acquisition, Olathe balanced the otherwise unbalanced benefit-to-burden ratios of the dedicating and nondedicating landowners. The statutory authority for the exemption of dedicating landowners was found in 12-692(a), and the balanced benefit-to-burden ratios satisfy the requirement of 12-6a08 that assessments imposé substantially equal burdens or shares of the costs on similarly benefited properties.
For their contention that Olathe’s assessment plan is arbitrary and unreasonable, the Bauers rely heavily on Bowers v. Gardner, 187 Kan. 720, 360 P.2d 17 (1961), and Engstrom v. City of Wichita, 121 Kan. 122, 245 Pac. 1033 (1926). They contend that the cases are directly on point and teach that an assessment scheme which singles out nondedicating landowners to pay acquisition costs is arbitrary and unreasonable.
The facts of Engstrom are unusual:
“Tbe city appropriated a strip of land off the west side of plaintiff’s land for the purpose of widening Fountain avenue and awarded plaintiff $2,000 as damages for the land taken. It assessed $1,500 against the remainder of plaintiff’s land as benefits; and to raise the money to pay the excess damages over benefits it erected a special benefit district consisting only of plaintiff’s remaining land.”
121 Kan. 122.
The court took a dim view of the city’s action:
"It is not remarkable that the trial court should conclude that it was unreasonable — in effect an arbitrary abuse of discretion — to take a considerable part of plaintiff’s land for public use and then subject the remaining portion of it to the payment of all the damages for the land thus taken. If nobody thereabout other than plaintiff was to be benefited by the widening of the street, the widening of Fountain avenue was a mere capricious meddling with plaintiff’s property. If the widening of the street was of benefit to other nearby property, and it seems logically impossible that it could have been otherwise, then it was arbitrary and unreasonable to create a benefit district solely of plaintiff’s property and to refieve from the burden by exclusion from die district the other nearby property which was similarly benefited. (Norwood v. Baker, 172 U.S. 269, and Rose’s notes thereto in 43 L. Ed. 443, et seq.)" 121 Kan. at 123.
It appears that the city attempted to defend its action by asserting that right-of-way had been dedicated by a property owner across from Engstrom. The defense was ineffective:
“Nor is it a sufficient defense for the seemingly unreasonable action of the city to argue that the benefited property across the street should bear no portion of the burden, for the reason that the narrow street already existing had been dedicated from file property on die west. There was neither evidence nor stipulation covering that point; and on the scant record submitted to us this argued fact does not appear; nor would it, if true, justify the erection of a district comprised of no other property than plaintiff’s to bear the burden of this public improvement.” 121 Kan. at 123-24.
In Bowers, 187 Kan. 720, the city acquired right-of-way by condemnation and dedication on both sides of a street which was to be widened. To pay costs of acquisition, the city created a benefit district comprised of the properties of nondedicating landowners. Costs of improvements tó the street were paid by other means. This court affirmed the district court’s enjoining the city’s proceeding with the assessments. The court reasoned:
“The trial court was well within the evidence presented by the record herein, when it found all abutting properties on both sides of Seneca Street, between Pawnee and Esthner Avenues, were in fact benefited by widening the street. It seems logically impossible that it could be otherwise. We therefore hold, on the authority of the Engstrom case, it was arbitrary and unreasonable to create a benefit district comprised of properties on Seneca Street representing roughly only 50% of the lineal footage and to relieve from the burden other properties which were similarly benefited by excluding them from the district.” 187 Kan. at 727.
K.S.A. 12-692 was not enacted until after the decision in Bowers was made. Nevertheless, the Bauers argue Bowers is “extremely persuasive” because “it was decided after the enactment of K.S.A. 12-6a01 et seq. and therefore defines what is not a 'reasonable’ assessment plan under K.S.A. 12-6a08.” It appears, however, that the benefit district which included the Bowerses’ property was created under G.S. 1949, 26-201 et seq. 187 Kan. at 721, 725-27. The Bauers do not show that the acts are similar, and they would not appear to be, as G.S. 1949, 26-201 governed condemnation of private property. See 187 Kan. at 726.
The Bauers attempt to bring Engstrom and Bowers closer to the present by stating that “Engstrom has been cited with ap proval by this Court as recently as 1986 in Garvey Elevators.” Engstrom appears in Garvey Elevators, Inc. v. City of Wichita, 238 Kan. 682, 688, 714 P.2d 956 (1986), as a citation within a quote to the effect that a city’s governing body is to be enjoined only in instances of clear abuse of discretion. Its holding was not mentioned.
Engstrom and Bowers is distinguishable from the present case on both the facts and the law. As a matter of fact, the earlier cases involved benefit districts which were made responsible only for costs of acquiring condemned property. For the Pflumm Road improvements, adjacent properties have been assessed for costs of street improvements as well as for right-of-way acquisition costs. As a result, all properties adjacent to the improved portion of Pflumm Road, that is, all properties which benefited from the improvement, are included in the improvement district and are assessed. In contrast, the benefit districts in Engstrom and Bowers included only nondedicating landowners. The composition of the districts was found to be unreasonable because all adjacent properties benefited similarly from the street improvements, but some were included and some were excluded.
In Bowers, Wichita justified its action as a way of balancing the burdens of dedicating landowners. The court stated: “On the surface there appears to be logic for the [city’s] position.” 187 Kan. at 724. The court, however, found that Engstrom was controlling. The court also looked to the provisions of G.S. 1949, 26-201 et seq., which applied to properties benefited by the improvement. 187 Kan. at 725-27. Thus, the analysis centered on the benefit conferred by the improvement project. In the present case, Olathe’s position is somewhat analogous to Wichita’s in that it takes burdens into account. Unlike Wichita, however, Olathe includes benefits as well as burdens in its equation.
As a matter of law, the statutes governing the cities’ actions are a basis on which the present case may be distinguished from Engstrom and Bowers. K.S.A. 12-692(a) authorizes exemption of dedicating landowners from the burden of paying special assessments for the cost of acquiring right-of-way. Benefits conferred by the improvement project are not a subject of the statute. Ar guably, one of the effects of the 1970 enactment of 12-692 was to sanction consideration of the benefit-to-burden ratio in creation of districts and formulation of assessments.
Olathe cites White v. County of San Diego, 26 Cal. 3d 897, 163 Cal. Rptr. 640, 608 P.2d 728 (1980), as upholding a similar assessment law. In that case, the plaintiffs’ principal objection to assessments for widening a street was exempting dedicating landowners from assessment for right-of-way cost. 26 Cal. 3d at 902. A California statute provided: “ ‘In assessing land, credit may be given for dedications and for improvements constructed at private expense.’ ” 26 Cal. 3d at 907. The Supreme Court of California concluded that it was proper for the county to eliminate the right-of-way assessment against parcels from which right-of-way had been dedicated. 26 Cal. 3d at 907. The Bauers quote from the dissenting opinion in White, which, in turn, relies on a decision substantially antedating enactment of statutory authority for crediting dedication. See 26 Cal. 3d at 910. The Bauers correctly point out that White is not “controlling precedent in this state,” nor does it involve Kansas law. However, it is persuasive authority on this issue.
The Bauers also contend that the assessment against their property is a taking without just compensation in violation of the Fifth Amendment guarantee of due process. Their theory is that the amount of the special assessment too far exceeds the amount of special benefit conferred on the property by the improvement. They rely on Norwood v. Baker, 172 U.S. 269, 43 L. Ed. 443, 19 S. Ct. 187 (1898), and Mullins v. City of El Dorado, 200 Kan. 336, 436 P.2d 837 (1968). They quote the following from Nor-wood and assert that this court in Mullins embraced the same concept:
“[T]he principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. . . .
“[T]he exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.” 172 U.S. at 278-79.
The same quote appears in Mullins with the addition of the following sentence:
“ “We say “substantial excess,” because exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment.’ ” 200 Kan. at 341-42 (quoting Norwood v. Baker, 172 U.S. at 279).
The Bauers argue that their property is assessed substantially more, due to their requiring compensation for right-of-way, even though no special benefit is conferred on their property which is not shared by the property of dedicating landowners. Their claim is based upon the special assessment against their property of $15,689.16 for right-of-way, while no special assessment was made against the property of dedicating landowners.
As we have seen, Olathe argues that burdening the nondedicating landowners with the special assessment for right-of-way acquisition corrects the advantage gained when right-of-way acquisition costs were lowered by other landowners’ dedications. Olathe also argues that the Bauers are not in a position to be claiming that the assessment on their property substantially exceeded the benefit because they failed to offer any evidence of the claimed disparity. The Bauers respond that constitutional infirmity of the assessment plan is demonstrated by their property’s having been assessed more than $15,000 more than property similarly benefited by the Pflumm Road improvements. However, the Bauers’ argument fails to take into consideration that they received compensation for the right-of-way easement through condemnation. The property owners who dedicated their right-of-way received no compensation for the easement. The burden to these property owners is clearly greater. The assessment for the right-of-way easement against nondedicated property was done to equalize the burden upon all the properties similarly benefited. In so doing, the cost to the properties is equalized and, in fact, is not “in substantial excess of the special benefit” to the properties.
The Bauers further contend that the due process requirement is violated when there is a possibility of assessment exceeding benefit as well as when the landowners have shown that the special assessment substantially exceeds the benefit. In Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 737 P.2d 6 (1987), the plaintiffs alleged violations of due process in imposition of assessments in excess of benefits conferred. We said:
“The exaction from the owner of private property of the cost of public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation of private property for public use without compensation. Norwood v. Baker, 172 U.S. 269, 279, 43 L. Ed. 443, 19 S. Ct. 187 (1898). Where a special assessment exceeds the amount of special benefits to the property assessed, the assessment is, as to such excess, a taking of private property for public use without just compensation.” 241 Kan. at 275.
The Bauers are challenging the special assessment against their property, and to constitute a due process violation, the excess would need to be established rather than hypothetical.
The Bauers also argue that the special assessment violates equal protection. They concede that the equal protection guarantee does not preclude classifying persons for purposes of legislation, as long as the reclassification bears a rational relationship to a legitimate governmental purpose. The parties agree that the standard to be applied here in determining whether or not Olathe’s assessment plan violates the federal and state guarantees of equal protection is whether the differential treatment of dedicating and nondedicating landowners bears a rational relationship to a legitimate governmental purpose. Olathe contends that the governmental purpose is to encourage the dedication of property for public improvement and that it is a legitimate purpose. The Bauers disagree and state that the governmental purpose “is to discourage owners within the improvement district from exercising their constitutional right to insist on payment for the land taken by the City in widening Pflumm Road,” and that it is not a legitimate purpose. We fail to see the merit in this statement. The Bauers insisted on and received payment for the right-of-way easement. Olathe’s purpose is to insist that costs of the right-of-way be shared equally by similarly situated property.
In Stephenson v. Sugar Creek Packing, 250 Kan. 768, 779, 830 P.2d 41 (1992), the court considered how the governmental purpose should be defined:
“Where the rational basis test is the measure of equal protection, ‘statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ (Emphasis added.) McGowan v. Maryland, 366 U.S. at 426. In this regard, Justice Lockett stated in his concurring opinion in Farley [v. Engelken, 241 Kan. 663]: Where the legislature has enacted statutory provisions that do not unequivocally state the public policy, the courts may interpret the intention of the legislature.’ 241 Kan. at 679. No authority has come to this court’s attention which prohibits the court from inferring and supplying a purpose for legislation where it is not expressed, at least for the two least stringent levels of equal protection scrutiny.”
Using the purpose suggested by Olathe, the differential treatment of dedicating and nondedicating landowners bears a rational relationship to the purpose.
Finally, in the district court, Olathe sought summary judgment on its claim that the procedures it used in establishing the improvement district and levying the assessment were proper and in compliance with the law. In its proposed statement of uncontroverted facts for the motion for summary judgment, Olathe included a lengthy recitation of facts which trace each step taken by Olathe in the course of establishing the improvement district and levying assessments. Those facts relate solely to Olathe’s compliance with statutory procedures. The record on appeal does not include the parties’ responses to proposed statements of uncontroverted facts. During argument on the cross-motions, both counsel assured the district court that no material facts were controverted. Olathe’s counsel stated: “I don’t think there is any contention that in fact we followed the procedures. The notice was given, everything of that nature was done. And really the only thing that plaintiffs have attacked in their response to our motion is the exemption requirement on right-of-way.” In his subsequent remarks, counsel for the Bauers did not contradict, correct, or question this representation. The district court judge wrapped up the argument by saying: “I take it from your comments that neither side feels there [are] any material facts that would preclude this case being decided on summary judgment solely.” Neither counsel responded. In the memorandum decision, the district court judge reiterated: “Counsel advise that all material facts are stipulated and only questions of law remain in the disposition of this controversy.” On appeal, the Bauers did not brief this issue.
In these circumstances, the issue should be resolved in Olathe’s favor. On the motion for summary judgment, the Bauers had an affirmative duty to come forward with evidence to establish a dispute as to a material fact. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 1, 863 P.2d 355 (1992). They neither questioned Olathe’s proposed facts nor offered any of their own relating to compliance with the statutory procedures. The Bauers have had a number of opportunities in addition to their response to Olathe’s proposed facts to come forward with evidence tending to show noncompliance with the statutory procedures for establishing improvement districts and levying assessments. They have failed to do so. In addition, the Bauers challenged the assessment after the project was completed and the assessment levied. They did not challenge the creation of the improvement district and the use of special assessments under K.S.A. 12-6a01 et seq. for the financing of improvements to Pflumm Road. In these circumstances, the district court should have granted judgment in favor of Olathe on this issue.
The judgment of the district court is reversed, and the case is remanded with directions to enter judgment for the appellant, City of Olathe.
Holmes, C.J., and Abbott, J., not participating.
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The opinion of the court was delivered by
Abbott, J.:
This is a sentencing case arising out of the period of transition from statutory indeterminate sentencing to sentencing under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq. The KSGA took effect July 1, 1993. We concentrate on the rules governing offenders who committed crimes before July 1, 1993, but were not sentenced until after July 1, 1993, although the same rules would apply to persons sentenced before July 1, 1993, if the statutory elements of the crime or crimes they committed changed on or before July 1, 1993.
The defendant, John E. Fierro, was sentenced on July 9, 1993, for offenses he committed over a three-year period from 1989 to 1992. He pleaded nolo contendere to six counts of attempted indecent liberties with a child in violation of K.S.A. 1992 Supp. 21-3503 and K.S.A. 1992 Supp. 21-3301, class D felonies. The district court at sentencing: (1) denied probation and assignment to community corrections and imposed 3- to 10-year sentences to be served concurrently; (2) computed Fierro’s sentence under the KSGA to be 32 months (grid block 5-1) on four counts and 18 months (grid block 6-1) on the remaining two counts (see K.S.A. 1993 Supp. 21-4704); and (3) did not state whether and, if so, how the guidelines sentence would be applied to Fierro’s benefit in the future.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion).
FACTS
Fierro entered a plea of nolo contendere to an amended complaint charging him with six counts of attempted indecent liberties with a child. The district court accepted his plea and convicted him as charged on March 29, 1993. He appeared for sentencing on July 9, 1993.
Fierro, the State, and the district court agreed that Fierro’s sentence should be computed both under the pre-guidelines statutes and under the KSGA. See K.S.A. 1993 Supp. 21-4724(f). They disagreed on what the appropriate sentence would be under both schemes and on which scheme would control his sentence.
The district court believed the pre-guidelines sentence would control but also computed the guidelines sentence:
“As I understand it, what is going to control his sentence is the original sentencing and I think I've covered that. The only thing that die guidelines require was that I compute what I considered to be ... his sentence under the guidelines as a guide to die corrections people and the parole board in die future.”
In determining the pre-guidelines sentence, the trial court found that the maximum sentence should be imposed under the statute in existence when the crimes were committed, which was 3 to 10 years’ imprisonment for each count. See K.S.A. 21-4501(d)(1). The six terms were made concurrent.
In calculating what Fierro’s guidelines sentences would be, the trial court applied K.S.A. 1993 Supp. 21-3504, aggravated indecent liberties, and set the sentences at 32 months on counts 2, 3, 4, and 6 and 18 months on counts 1 and 5.
THE ISSUES
We consider whether the district court: (1) was required by K.S.A. 1993 Supp. 21-4724(f) or by equal protection principles to apply the guidelines retroactively to Fierro and (2) correctly determined Fierro’s sentence. Three additional issues also require our review: (1) a preliminary challenge by the State to Fierro’s standing; (2) the preservation of questions for appeal; and (3) an assertion by Fierro that the district court showed bias or prejudice towards him at sentencing.
Standing
The State contends that Fierro lacks standing to challenge the constitutionality of the KSGA, relying on the general rule that a party must have a sufficient interest in and have been aggrieved by a judgment in order to appeal. See Gigot v. Cities Service Oil Co., 241 Kan. 304, Syl. ¶ 1, 737 P.2d 18 (1987). The State attempts to use a statement from Fierro’s brief that he is not “disadvantaged by the application of the sentencing guidelines” as an admission he has no standing. The State’s argument is not well taken. The statement in Fierro’s brief is lifted from its context. Fierro alleges that he is disadvantaged by what he claims is unequal treatment by the guidelines’ retroactivity provision. Fierro wants the guidelines to control his sentence because they impose on him a shorter term under the district court’s calculation (32 months, maximum) than the statutory senténce he is presently serving (3 to 10 years) and, under his analysis, die guidelines mark him for presumptive probation. He has standing to bring his constitutional challenge.
Preservation of Constitutional Issues for Appeal
The State also claims that “[t]he trial court was not requested to rule on [the] issue. regarding the [KSGA] violating the due process, ex post facto, and equal protection clauses of the United States Constitution.’’ Thus, the State contends that we should not address these issues.
Contrary to the State’s assertion, Fierro raised his equal protection and ex post facto arguments in the proceedings below. Fierro’s counsel stated at the sentencing hearing that diere was a problem under equal protection principles with having the preguidelines statutes control Fierro’s sentence, rather than the guidelines. The district court agreed with Fierro but chose not to make a ruling on those grounds, saying it was not a problem that could be solved that day. The record indicates that the district court anticipated the issue being raised on appeal, and for that reason the court did not give die issue any further consideration. With respect to the ex post facto argument, Fierro’s counsel discussed this claim at length in his brief in opposition to the State’s successful motion to reconsider the sentence. We conclude that Fierro properly raised his equal protection and ex post facto arguments in the trial court.
As for Fierro’s due process argument, the State may be correct because we are unable to locate in the record where Fierro expressly objected to the guidelines or to his sentence on due process grounds. However, this omission is of no practical consequence because the only specific and independent due process argument that Fierro appears to make on appeal is virtually indistinguishable in substance from his equal protection argument. We have recognized that the analyses under the equal protection and due process clauses are almost identical. See Chiles v. State, 254 Kan. 888, Syl. ¶ 10, 869 P.2d 707, cert. denied 115 S. Ct. 149 (1994) (“The test in determining the constitutionality of a statute under due process or equal protection concepts weighs almost identical factors.”). We will review Fierro’s equal protection and ex post facto arguments.
DISCUSSION
The Equal Protection Challenge
There is uncertainty and disagreement between the parties about how the guidelines and pre-guidelines sentencing schemes apply to Fierro and others sentenced after July 1, 1993, for crimes committed before that date. The district court did not indicate whether, in its view, Fierro would be entitled to convert his statutory sentence to the guidelines sentence at some later date and, if so, how such conversion would occur. Cf. State v. Gonzales, 255 Kan. 243, 250, 874 P.2d 612 (1994) (conversion is mandatoiy for persons sentenced before July 1, 1993, if they qualify for retroactivity under K.S.A. 1993 Supp. 21-4724[b]).
This appeal involves statutory construction. The interpretation of a statute is a question of law. Our standard of review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Fierro contends that K.S.A. 1993 Supp. 21-4724 excludes otherwise qualified offenders like him, who committed their crimes before July 1, 1993, but were sentenced after that date, from the benefits of retroactivity. He argues that he is therefore treated less favorably than similar offenders sentenced before July 1, 1993. The disparate treatment, he asserts, is not supported by a rational basis and thus violates the Equal Protection Clause of the 14th Amendment. Fierro’s constitutional challenge is one of first impression. It involves a different challenge to K.S.A. 1993 Supp. 21-4724 than the one we resolved in Chiles v. State, 254 Kan. at 901 (finding, in part, that the “more serious versus less serious offenses” classification for determining to whom retro-activity applies has a rational basis and thus passes equal protection challenge).
In Gonzales, 255 Kan. at 250-51, we held that conversion to a guidelines sentence is mandatory for persons who qualify for retroactivity under K.S.A. 1993 Supp. 21-4724(b). Subsection (b) applies, in pertinent part, to persons sentenced prior to July 1, 1993, “who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, [or in a border box of the nondrug grid] ... , if sentenced pursuant to the Kansas sentencing guidelines act.” (Emphasis added.) K.S.A. 1993 Supp. 21-4724(b).
Fierro was sentenced on July 9, 1993, and therefore the district court applied K.S.A. 1993 Supp. 21-4724(f), which states:
“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.”
Under K.S.A. 1993 Supp. 21-4724(f), the district court concluded that Fierro’s controlling sentence was the pre-guidelines 3- to 10-year term. The district court also computed Fierro’s guidelines sentence, as subsection (f) requires, but gave no indication if or when the guidelines sentence might become relevant. The district court did not apply the guidelines retroactively to Fierro.
It is unclear whether and, if so, how Fierro would be able to convert his sentence to the guidelines sentence at some time in the future, assuming his pre-guidelines sentence initially controls under the district court’s order. The KSGA does not expressly provide Fierro such a right. The conversion procedure established in K.S.A. 1993 Supp. 21-4724 applies only to “persons who committed crimes and were sentenced prior to July 1, 1993.” K.S.A. 1993 Supp. 21-4724(c)(l) begins:
"Except as provided in subsection (f), the department of corrections shall conduct a review of all persons who committed crimes and were sentenced prior to July 1, 1993, and are imprisoned in the custody of the secretary of corrections as of that date.”
The “Except as provided in subsection (f)” language is confusing, since subsection (f) expressly applies to a completely different group of persons (“sentenced after July 1, 1993”) than those to whom subsection (c)(1) expressly applies (“sentenced prior to July 1, 1993”). We do not see how subsection (f) is an “exception” to (c)(1), since the two provisions seem exclusive of each other on their own terms. We reason that the legislature intended to cross-reference subsection (f) in subsection (c)(1) to highlight the fact that the two provisions apply to separate groups of offenders and that offenders who fall under subsection (f) were not entitled to (and would not necessarily need) the conversion procedure outlined in subsections (c) and (d).
The 1994 Kansas Sentencing Guidelines Desk Reference Manual, prepared by the Kansas Sentencing Commission, vaguely suggests that some otherwise eligible offenders (based on the 21-4724[b] “less serious offense” criteria) sentenced after July 1, 1993, may be able to receive the benefits of retroactivity. In discussing 21-4724(f), the manual states the following:
“For those offenders who committed crimes prior to July 1, 1993, but who were sentenced after that date, the court must impose a sentence pursuant to tire law in effect before July 1, 1993. However, the guidelines sentence must be computed as well as a means of determining whether the offender is thereby excluded from eligibility for retroactive application of the sentencing guidelines or not. The offender may challenge the compiled criminal histoiy prior to sentencing. The Department of Corrections may use this information to determine eligibility for retroactive application of the guidelines, or a court may take judicial notice of these documents in a subsequent hearing.” (Emphasis added.) 1994 Kansas Sentencing Guidelines Desk Reference Manual, p. 37.
If, as the Sentencing Commission suggests, the purpose of computing the guidelines sentence for persons sentenced after July 1, 1993, is to determine whether they are eligible for retroactivity (i.e., whether their guidelines sentence falls within the presumptive probation or border box grid blocks), then the natural implication is that offenders deemed eligible will receive the benefits of retroactivity. If a particular offender would not benefit from a retroactive application of the guidelines, but rather would be disadvantaged, then the offender s original pre-guidelines sentence would remain in effect. K.S.A. 1993 Supp. 21-4724(e) (“A person’s sentence shall not be increased in length through a conversion to one under sentencing guidelines.”); see State v. Nunn, 244 Kan. 207, 219, 768 P.2d 268 (1989). The State makes a similar assertion about the application of K.S.A. 1993 Supp. 21-4724, alleging that for eligible offenders, “both sentences will be administered by the Department of Corrections [and] whichever sentence has the earliest release date is the one the Department of Corrections will abide by.” Thus, the State seems to agree with our assessment of the interplay between the pre- and post-guidelines sentencing schemes.
We believe that when including subsection (f) in K.S.A. 1993 Supp. 21-4724, the legislature was trying to avoid any potential ex post facto problems resulting in the event that the guidelines increased the penalty for a particular offender who committed a crime before the July 1, 1993, effective date, but who was not sentenced until after that date. See K.S.A. 1993 Supp. 21-4724(e). An ex post facto violation occurs when a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987). By inserting a blanket prohibition on adverse retroactivity for preJuly 1, 1993, offenders sentenced after the effective date, the legislature ensured that no such offender would receive a longer sentence because of the guidelines.
Would the granting of retroactivity to some qualified offenders who committed crimes before July 1, 1993, but not to other similar offenders who also committed crimes before July 1, 1993, with the distinction based on the date of sentencing, violate the equal protection rights of similar offenders sentenced after July 1, 1993? Fierro thinks so¡, and we agree.
As in Chiles, the applicable level of scrutiny in Fierro’s case for the challenged classification based on the date of sentencing is the rational basis test. See Chiles, 254 Kan. at 901. The challenged legislative classification will be upheld if it bears a rational relationship to a legitimate objective. 254 Kan. at 892. The State has not articulated either a rational basis or a legitimate objective for providing beneficial retroactivity to one offender whose sentencing took place, for example, on June 30, 1993, while denying retroactivity to an otherwise identical offender whose sentencing took place on July 2, 1993. The State’s argument concerning the rational basis test is not persuasive. The State attempts to justify why different offenders’ hearings are held at different times, rather than why one group is given retroactivity while the other group is not.
In Chiles, we held that the line drawn by the legislature in providing retroactivity to “less serious” offenders but not to “more serious” offenders was “rationally related to the purpose of reducing the prison population while protecting public safety.” 254 Kan. at 901. We can drink of no comparable purpose for drawing a line between less serious offenders sentenced before July 1, 1993, and less serious offenders sentenced after that date. Such a line is not rationally related to public safety concerns, since both groups of offenders are among those deemed less serious.
If K.S.A. 1993 Supp. 21-4724(f) denied retroactivity to persons sentenced after July 1, 1993, who would otherwise qualify for retroactivity under 21-4724(b), the statute would violate the Equal Protection Clause. We therefore construe the statute as providing offenders sentenced after July 1, 1993, who are otherwise qualified for retroactivity under 21-4724(b), the same opportunity for retroactivity as offenders sentenced before that date. This construction is derived from legislative intent as expressed in K.S.A. 1993 Supp. 21-4724.
“ ‘In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to tire historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’
“ . . When the interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.’ ” Gonzales, 255 Kan. at 249 (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶¶ 3, 4, 580 P.2d 867 [1978]).
Under the guidelines classification computed by the district court, Fierro qualifies for retroactivity under K.S.A. 1993 Supp. 21-4724(b).
Fierro’s Guidelines Sentence
We now address Fierro’s challenge to the district court’s com putation of his guidelines sentence. The question is whether the district court correctly determined Fierro’s sentence under the KSGA. Fierro contends that the district court committed an ex post facto violation in determining his offense severity level. He also contends that his correct guidelines sentence calls for presumptive probation and that the district court failed to justify its departure from probation in announcing his guidelines sentence. The parties agree that Fierro’s criminal history category is “I” (no prior record).
In addition to the first-impression nature of the interplay between pre- and post-guidelines sentences, the case at bar also presents a general question of first impression concerning how a sentencing court should determine a guidelines sentence for a crime committed before July 1, 1993. Many of the substantive criminal statutes were substantially amended when the guidelines were enacted. Crimes that were previously defined in broad terms and classified as a general class of felony were broken down by the legislature into different crimes and were assigned different severity levels. Many of the variations that now give rise to different severity levels did not exist in the criminal laws prior to July 1, 1993. The indecent liberties and aggravated indecent liberties statutes at issue in Fierro’s case are but two examples. Similar problems have arisen with aggravated batteiy, see State v. Houdyshell, 20 Kan. App. 2d 90, 884 P.2d 437 (1994), and aggravated incest, see State v. Colston, 20 Kan. App. 2d 107, 883 P.2d 1231 (1994).
The problem is this: The substantive criminal statutes that defined crimes before July 1, 1993, did not contain “severity levels,” which are necessary to compute a guidelines sentence under the KSGA. Severity levels are found only in the substantive criminal statutes that took effect July 1, 1993. Had the legislature made no substantive changes to the criminal laws when enacting the guidelines, but simply converted the “class felony” system to a “severity level” system without touching the names, elements, and definitions of the substantive crimes, the perplexing problem now before us would not exist. However, the legislature made substantial changes to many substantive crimes. As a result, it is often difficult to determine the guidelines severity level of a pre-July 1, 1993, offense.
The reasoning of this appeal applies to all those crimes amended effective July 1, 1993, plus any crimes amended after a prisoner commenced serving a sentence, whether the amendment occurred before or after July 1, 1993. They are countless and involve a large number of prisoners.
Historically, and in this case, the fundamental rule is that a person convicted of a crime is given the sentence in effect when the crime was committed. See State v. Reed, 248 Kan. 792, 795, 811 P.2d 1163 (1991). That rule is codified in K.S.A. 1993 Supp. 21-4723 and K.S.A. 1993 Supp. 21-4724(f), which require the sentencing court to impose a sentence as provided pursuant to law as the law existed prior to July 1, 1993. The sentence imposed on Fierro was 3 to 10 years in prison. The conversion of that sentence is an act of grace on the part of the legislature, and so long as all persons similarly sentenced are treated the same there is no constitutional issue. 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.
In cases involving prisoners already serving sentences on July 1, 1993, the legislature provided that if a dispute arose as to conversion, that person could request a hearing in the trial court in which the person was originally sentenced (either direct review or as a K.S.A. 60-1507 motion) and have the dispute settled. That step is not necessary for those sentenced after July 1, 1993, be cause the legislature wisely provided for those issues to be disposed of at sentencing by having the trial court compute the sentencing guidelines sentence just as the Department of Corrections does for prisoners who were serving sentences on July 1, 1993.
The legislature clearly intended that the defendant’s sentence be modified by comparison with the sentencing guidelines as if the “crime” had been committed on or after July 1, 1993. In converting a sentence, the legislature intended that the Department of Corrections use records available to it to determine what the defendant did when the crime was committed and convert that crime to an analogous crime existing after July 1, 1993. This is reflected throughout the sentencing guidelines. See, for. example, K.S.A. 1993 Supp. 21-4707(b), (c)(1), and K.S.A. 1993 Supp. 21-4711(e).
The legislature also allows the Department of Corrections to compute criminal history based on its own records and the records of others, which in many cases are not part of the defendant’s court record. A defendant’s criminal history includes juvenile offenses and criminal convictions that have been expunged. This shows legislative intent that the true facts of an offense be used to determine what the defendant would be sentenced to if the crime had occurred after July 1, 1993. The conversion should be based on the facts and should not ignore what has been charged and either proven or admitted by the defendant, as in this case.
This case has significance in cases other than indecent liberties. It will apply to nearly all sex crimes involving minors as victims. It will also apply, for example, to aggravated arson, aggravated assault on a law enforcement officer, and aggravated battery on a law enforcement officer; to any offense where a firearm was used to commit a person felony; to drug crimes where solicitation, conspiracy, or attempt was not an element prior to 1993; and to many drug cases, based on the weight of the illegal substance.
Here, Fierro pleaded guilty to crimes involving victims whose ages are not in dispute. The legislature has expressed great concern for criminal acts directed at young children as demonstrated by the number of new crimes involving sexual acts committed on minors and by increasing penalties for these crimes.
We hold the legislature intended that the trial court compute the sentence under the sentencing guidelines by looking at actual conduct and by applying the actual acts committed to the comparable crime in effect after July 1, 1993.
It is important to remember the trial court at this stage is not dealing with guilt or innocence of a defendant. The defendant has been convicted and sentenced for the crime in effect when the defendant committed the crime. The issue before the court is whether the defendant will have a sentence reduction based on the severity level set by the legislature for crimes in effect on or after July 1, 1993.
The trial judge is not to impose a sentence under the sentencing guidelines. The trial judge has already imposed the sentence based on the statutes in effect when the crime was committed. All the trial judge is to do is compute the sentence that would have been imposed had the defendant been sentenced pursuant to the sentencing guidelines. K.S.A. 1993 Supp. 21-4724(f). The Department of Corrections will then require die defendant to serve the lesser of the two.
In summary we approve State v. Colston, 20 Kan. App. 2d 107, 883 P.2d 1231 (1994), and disapprove other Court of Appeals decisions to the contrary.
Bias or Prejudice at Sentencing
Fierro inteiprets some of the district court’s comments during the sentencing hearing as indicating a bias or prejudice against sex offenders and a “predisposition” in favor of imprisonment for pedophiles. He cites State v. Fisher, 249 Kan. 649, 652, 822 P.2d 602 (1991), in which we held that the district court’s comments indicated that it did not exercise any discretion in imposing a sentence of imprisonment on a narcotics offender, in violation of K.S.A. 21-4601. The sentencing record in the instant case does not support Fierro’s contention of bias. Nor does it support the contention that the district court was incapable of rendering a fair, objective, and impartial decision because of the nature of Fierro’s offenses.
CONCLUSION
Fierro qualifies for and is therefore entitled to retroactive ap plication of the KSGA. Consequently, his guidelines sentence controls to the extent that it benefits him. If it disadvantages him compared to his pre-guidelines sentence, then his pre-guidelines sentence must control. Therefore, both his pre-guidelines sentence and his guidelines sentence must be computed, separately, in order to effectively impose and administer Fierro’s sentence.The trial court properly computed Fierro’s pre-guidelines sentence and guidelines sentence.
Affirmed. | [
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Per Curiam:
The judgment in this case is affirmed, upon the authority of Stevens v. Able, 15 Kas. 584; Fanson v. Linsley, 20 Kas. 235. | [
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The opinion of the court was delivered by
Horton, C. J.:’
On the first day of November, 1875, the defendant in error commenced an action against.the plaintiff in error, to recover the amount of two promissory notes, and to foreclose a mortgage made by plaintiff in error to defendant in error upon certain real estate, to secure the payment of the notes, one for $400, due in thirty months, and the other for $570.25, due in five years from the date thereof. The notes and mortgage were dated April 15th, 1868, and the notes bore interest at ten per cent, per annum from date. The defendant in error also, in her petition, alleged that she had paid taxes on the mortgaged premises, and that the mortgage provided for a reasonable attorney’s fee for foreclosing it. She demanded judgment for the several sums. The plaintiff in error answered, setting up several defenses, in substance as follows: First, a general denial; second, the statute of limitations as to -the four-hundred-dollar note; third, a want of.consideration as to both notes; fourth, payment of both notes; fifth, a set-off for the value of certain improvements, made by plaintiff in error upon land owned as tenants-in-common by the parties. To these defenses, the defendant in error replied by a general denial.
During the December term of the court for 1875, the case was submitted to the court by agreement. Special findings of fact and conclusions of law were made, and thereon judgment and a decree of foreclosure for .the defendant in error were entered, except as to the $400 note. As to that, the court sustained the statute of limitations. The.plaintiff in error made a motion for a new trial, which was overruled by the court, and he brings the ease here.
Plaintiff in error contends, that the defénses of want of consideration and payment were fully sustained, and that the court erred in its findings to the contrary. The finding concerning the consideration is as follows:
“A short time prior to the execution of the notes and mortgage, the defendant (plaintiff in error) held a note on Geo. McCarter for the sum of $750, which with interest amounted to about $900. This note was given for part of the purchase-money of a farm sold about three years before that time by the defendant to the.said George McCarter for $3,500. The defendant agreed with the plaintiff, that as she had worked hard and aided in accumulating the property, that she should have part óf the money, and that she might have this note; she took the note with his consent, immediately previous to the time of the execution of the notes and mortgage sued on. The defendant obtained the McCarter note from the plaintiff, with the understanding between them that he was to have the note discounted, and have, part of the money, and to give her then the notes and mortgage mentioned in the petition. In conformity with this agreement, the defendant took the McCarter note, had it discounted, and returned the money to her, upon which she retained nearly $300, and gave him about $675. Besides this, she had previously, at different times, and in small sums, loaned him about $240. The sums thus loaned to him, added to the portion of the proceeds of the McCarter note, delivered to the defendant by the plaintiff, and retained by him, constituted the consideration of the notes and mortgage set out in the plaintiff's petition."
This finding is sustained by the evidence of the defendant in error, and the consideration being ample in law, we cannot interfere against it, although the plaintiff in error testified that Mrs. Greer obtained the McCarter note at his office, without his knowledge or consent, and that he was forced to give the notes sued on in order to get the note back, as we are compelled to leave the settlement of question of fact in cases of conflicting testimony to the trial court, which sees and hears the witnesses. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145; Gibbs v. Gibbs, 18 Kas. 419.) The same remarks and decision are also applicable to the defense of payment. Mrs. Greer testified that the plaintiff in error paid the incumbrance on the land bought of A. S. Holmberg in March, 1867, but that he obtained about $600 from her land which he used in payment, or used for himself.
Plaintiff in error further claims that the court erred in its conclusion of law, that for the improvements found to have been made by the plaintiff in error, he is not entitled to recover anything as a set-off. The finding of fact upon which this conclusion of law was based, is as follows:
“In the year 1872, the said plaintiff (defendant in error) and defendant (plaintiff in error) were tenants-in-common of the tract of land described in the eighth defense in the answer of the defendant, and as husband and wife, occupying, using and tilling the same as a farm; the said defendant as the head of the family controlling the out-door business of the farm, and receiving and converting the proceeds of the farm; the plaintiff working as a farmer’s wife ordinarily and usually does, and each thus in thaff position performing the ordinary work, labor and duties, and with the same control that husband and wife usually and ordinarily have; that while thus situated, and without any express agreement or any arrangement or understanding on the part of the plaintiff to repay defendant, but with her .consent, knowledge and approval, the defendant expended in- making valuable and lasting improvements on the land in money and labor the sum of .$800 more than the plaintiff; that is to say, with the knowledge, consent and approval of each other, the plaintiff made lasting and valuable improvements on said land, of the value of one thousand dollars. Nothing has ever been paid on this account by the plaintiff to the defendant.”
Under § 21, ch. 55, Compiled Laws 1879, the defendant in error would be required, ordinarily, to contribute ratably to the payment of such improvements, but the relation of the plaintiff in error to the defendant at the making of the improvements, his conduct and acts, clearly show no intention on his part at that time of demanding any compensation therefor. He received the proceeds of the farm, and made no account to his wife; she did the usual work of a farmer’s wife and made no charge; and taking all the circumstances of the case together, it would seem that the claim of compensation for a portion of the improvements was an afterthought. It would be grossly unjust to allow for such improvements, without any account beiDg taken of the work of the wife, and the receipts of the farm. As no separate accounts of these items were kept by the parties, .and as the trial court has found that plaintiff in error was not entitled to recover for the improvements, we may well assume that the plaintiff in error paid out the money and did the labor for the improvements gratuitously, and without expectation of pecuniary reward.
A question is attempted to be made about the right of the court to adjudge the mortgage a lien on the real estate, but we cannot consider that matter, as.it was not contested in the trial court, and no defense over the validity of the mortgage was made in the answer.
The other matters presented by the plaintiff in error are equally untenable, with the exception of the claim against the allowance of the attorney’s fee of $100. It is conceded by the counsel of defendant in error, that the court committed error in allowing it.
The judgment of the district court will be modified to the extent of remitting therefrom the attorney’s fee of $100, and in all other respects it will be affirmed. The costs in this court will be divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Henry Morrell brought an action in the district court of Osage county, Kansas, against Edward Ingle and others. E. M. Sanford, James Rogers and Joseph McDonald became security for costs for Morrell. Afterward, it would seem, judgment was rendered against Morrell for costs, and he failed to pay them, and they could not be collected from him. Afterward, the following notice (omitting the title) was served upon said Sanford, Rogers and McDonald, to wit:
“ To Joseph McDonald, James Rogers and E. M. Sanford: You will take notice that a motion will be made on behalf of the officers and ex-officers of this court having fees in the above-entitled cause, to take judgment against you as sureties on plaintiff’s bond for costs in the above-entitled cause, at one o’clock p. m., Eeb. 24th, A. D. 1879, or as soon thereafter as counsel can be heard at the court house, at Lyndon.
“N. Frankhouser, Sheriff.
“J. T. Underwood, Under-Sheriff.
“Thos. Donnell, ex-Clerk.
“By Thos. Donnell, their Attorney.”
Afterward, a motion, such as is contemplated in the foregoing notice, was filed in the district court, but, as the motion was undoubtedly sufficient- — -being very much fuller and more complete than the notice, and as no question has been raised as to its'sufficiency, we shall not give a copy thereof, or say anything further with regard thereto. Afterward, Sanford, Rogers and McDonald made a special appearance in the district court and filed the-following motion (omitting the title), to wit:
“In the matter of Thos. Donnell, Clerk, N. Frankhouser, Sheriff, and Jesse Underwood, Under-Sheriff, against James Rogers, E. M. Sanford and Joseph McDonald, sureties for costs in the above-entitled case:
“Come now James Rogers, E. M. Sanford and Joseph McDonald, and each for himself makes a special appearance herein for the purpose of this motion only, and for no other purpose whatever, and moves the court for an order setting aside the service of notice as to each and all of these persons of a motion to enter judgment against each and all of us, for the following reasons, to wit: Because it does not state the amount of money for which judgment will be obtained; because it is indefinite and uncertain; because it does not show in whose favor the judgment shall or will be rendered; because it does not show the separate, amount of costs for each officer that judgment should be in favor of; because it does not show the nature and tenor of the order applied for.
“James Rogers, in Person.
“ E. M. Sanford, in Person.
“Rogers and Sanford,
“Attorneys for Joseph McDonald for this purpose only.”
The court overruled this motion, and said sureties making no. further appearance in the case, the court then rendered judgment in favor of the said defendants, and against the said sureties, for the amount of said costs. But as no question is raised with regard to the judgment, independent of said notice, it will not be necessary to say anything further with regard to the judgment.
The only question raised in the case is, whether said notice is sufficient or not. The statute under which this proceeding was had, reads as follows:
“Sec. 585. After final judgment has been rendered in an action in which security for costs has been given, as required by this article, the court, on motion of the defendant, or any other person having a right to such costs, or any part thereof, after ten days’ notice of such motion, may enter up judgment in the name of the defendant or his legal representatives, against the surety for costs, his executors or administrators, for the amount of costs adjudged against the plaintiff, or so much thereof as may be unpaid. Execution may be issued on such judgment as in other cases, for the use and benefit of the persons entitled to such costs.” (Comp. Laws of 1879, p. 682.)
We think that the notice was sufficient, and that the ruling of the court thereon was correct. The only object that was expected to be accomplished, or that could properly be accomplished by the notice and its succeeding motion and order, was to have the judgment, which had already been rendered in favor of Ingle and the other defendants against Morrell for costs, so extended as to make it a judgment for costs against Morrell’s sureties also, to wit: Sanford, Rogers and McDonald. And any person interested in such judgment or costs had a right to give the notice, and to make the motion, and to procure the necessary order of the court to be rendered. And when the order was made, if made properly, it would inure to the benefit of all persons interested in the costs; and«as the records and proceedings of the case must show who were entitled to costs or fees, and the amounts going to each, it was not necessary for the notice to state these matters. The costs must be considered as taxed against the sureties just as they had been taxed originally against Morrell. If, however, some of the costs had been taxed errone ously against Morrell, or if some of them had been paid, it was the duty of the sureties, on receiving said notice, to appear before the court, and make these matters known to the court, and then all proper correction could be made. This kind of proceeding, to extend a judgment for costs so as to make it a judgment against the sureties for costs, was not intended to be ..carried on in the formal manner in which an original action would be carried on. It is merely a summary and auxiliary proceeding in an action in which all the principal and substantial questions have already been settled and determined. And it is no more difficult to calculate or to determine to whom the costs in the case belong after the judgment is extended against the sureties, than before. The only difference is, that after such judgment has been extended to the sureties, the execution may issue on such judgment against the property of the sureties, as well as against the property of their principal.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action of replevin by plaintiffs in error against defendants in error, to recover possession of certain goods and chattels used in furnishing the Reeves house, in Nickerson. Plaintiffs claimed ownership under a bill of sale purporting to have been executed to them on July 15, 1879,. by William Pointer, of the firm of Pointer & Williams, keepers of the hotel. Defendants in error were in possession of the property under a writ of attachment in favor of G. W. Todd .& Co. against Pointer & Williams. G. W. Todd & Co. were creditors of the latter firm, and in an action to recover their claim, sued out an attachment. Notwithstanding the alleged sale to plaintiffs, such sale was unaccompanied by a change' of possession of the property. The controversy in the court below was, whether the sale was made in good faith and upon sufficient consideration.
The case-made states that there was an offer to prove by A. J. Locke, one of the plaintiffs, as a reason for not taking possession of the goods, “that several railroad men board-’ ing in the hotel came to him and begged him not to turn them out, saying they could not at that time get shelter for their families in any other house in Nickerson.” This évi dence was excluded, and we think improperly. The plaintiffs were required to supplement the bill of sale with proof of good faith and payment of value. (K. P. Rly. Co. v. Couse, 17 Kas. 572.) As good faith was as essential as payment of value, all evidence tending to prove good faith in the alleged purchase was pertinent to the issue,-and ought to have been admitted. The rejected evidence tended to explain the conduct of plaintiffs in not taking actual possession of the property; it- tended to show that such possession was not taken, solely to accommodate the boarders at-the hotel, who declared they could not get shelter for their families at that time' in any other house in Nickerson, and thereby tended to establish the good faith of the sale. Such evidence was not hearsay, as it was not offered to prove as a fact that the boarder's at the hotel could not get shelter in the town outside of the hotel, but to show that the plaintiffs acted upon the declarations of boarders in the hotel in not taking actual possession. It was immaterial to the inquiry whether the declarations' were true or false. The plaintiffs claim that such declarations were made, and that they acted upon them. They had the right to show that the declarations were made, and that they acted upon the’m. In this view, the declarations became original evidence, and were competent. Their rejection was material error.
Another question of evidence is presented. On the. part of defendants, one R. L. Yeager testified, over the objection of plaintiffs, “that at the time of the levy, Pointer was in the office of the hotel and seemed and acted as if he had charge and custody of the house,' and seemed to be as much interested and excited as the plaintiffs in this case.” The admission of this testimony was no ground for exception. To a certain extent, it may be said the evidence was the opinion or judgment of the witness founded upon conduct, language or appearances not detailed; yet such opinion was derived from having observed the relations and conduct of the person in the actual possession of the property and one of the plaintiffs, which would have been difficult and perhaps impossible to detail to the jury; and it is evident that the facts upon which the witness expressed his judgment were such as men in general are capable of comprehending and understanding. Testimony must occasionally be a compound of fact and opinion, and the evidence objected to may be characterized as of that nature. (The State v. Stackhouse, ante, p. 453; Commonwealth v. Sturtevant, 117 Mass. 122; Calvin v. Dwight, 6 Gray, 444.)
The other matters submitted may not arise upon another trial, and we need not now express any opinion upon them.
The judgment of the district court is reversed, for the rejection of competent and material evidence, and the cash remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiffs in erroi’, plaintiffs below, entered into a contract with the defendant to do all the county printing at rates less than the fees allowed by law. Having done the work, they presented their bill for the same at legal rates. The board of commissioners declining to allow anything in excess of the contract price, they appealed to the district court, which sustained the action of the commissioners. They now bring the question to this court.
Does the contract price control, or may they, having obtained the work by means of the contract, now repudiate its obligations and recover at the rates prescribed by law where there is no contract? In 1868, the law in force was as follows: See. 17 of ch. 39, the act fixing fees, provided that “printers shall be entitled to receive the following fees,” and names the fees for different services. Sec. 36 of ch. 25, the act prescribing the duties of county officers, reads:
“The boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication of delinquent tax lists, treasurer’s ‘notices, county printing, or any other county expenditures: Provided, That all county printing shall be let to the lowest responsible bidder.”
This section was amended in 1872 by dropping off the proviso. (Laws 1872, p.246.) With this change, the legislation of 1868 is still in force.
Now the argument is, that the law having prescribed certain fees for certain work, an agreement to do the work for less than legal fees is without consideration, a mere nudum pactum; that the legislature, perceiving the inconsistency between two statutes, one fixing fees and the other requiring the work to be let to the lowest bidder, removed it in 1872, by taking away the latter provision, and that now the fees being fixed, the sole power of the commissioners is, to select the party to do the work. This argument is plausible, but not sound. The statute of 1868 gave the commissioners the exclusive control of the matter of county printing, with the limitation that it must be given to the lowest bidder. This limitation was removed in 1872, but their exclusive control was not disturbed. Before 1872, they must; since, they may let to the lowest bidder. Taking away a limitation in the one direction, does not place a limitation in the opposite. Taking away a restriction upon full discretion leaves the discretion full and free, and does not superimpose another restriction. As to the argument that a contract to do work for less than legal fees is without consideration; a distinction must be noticed between the contracts of a public officer and those of a private individual. The former must do the work demanded of him, the latter may do it or not, as he pleases. The title of the chapter concerning fees is, “An act fixing the fees of certain officers and persons therein named.” If official services are demanded of a sheriff or other officer, he must render them or respond in damages; if services are demanded of a private person, he may render them or not, as he pleases, and without any liability for refusal. The commissioners may compel a sheriff to serve process, but they cannot compel any one to do the county printing. The printer being then free to act, should, be free to contract;, while the officer who is compelled to act, may not be free to-contract. Even as to officers, the right to contract for services at less than legal rates may exist. At least, the authorities are not settled in this respect, though the right to demand or contract for compensation above such rates is denied. Thus in Gilman, et al., v. The D. V. R. Co., 40 Iowa, 200, a contract was made with the sheriff in advance to sell certain property upon execution for a gross sum in lieu of the legal fees. As the amount for which the property might be sold could not be anticipated, and it was therefore uncertain whether this gross sum would be in excess of the legal fees or not, the court held the contract invalid. The statute made it a misdemeanor to take in excess of legal fees, and the court say that the contract must be good or bad at the time it is made, and not dependent for validity on the question of the amount thereafter to be realized upon the sale. It is not intimated that a contract to do the work at less than legal- rates would be invalid. No stronger is the case of Hall, et al., v. Gavitt, 18 Ind. 390, where a principal whose compensation was from fees, permitted another to discharge all the duties and receive all the fees in consideration of a gross sum. The court declined to consider whether this gross sum would or would not be in excess of the probable fees. In Hatch v. Mann, 15 Wend., 45, service of process at an unseasonable hour was asked upon the promise of extra compensation, and the promise was held not binding. On the other hand, in The People, ex rel., v. Board of Police, 19 Sup. Ct. N. Y. 653, it appeared that the relator was appointed by a resolution of the police board of New York city, police surgeon, at a salary of $1,500. He served as such, and received said amount. Thereafter, he claimed that the law fixed the salary at $2,250, and that the police board had no power to reduce it, and he sued for the excess, yet the court held him bound by his contract; he had accepted services upon a resolution offering $1,500, and had received the $1,500. It was a contract, and bound him. Brady, J., said: “The agreement to receive fees is neither against public policy nor public morals, but rather in the spirit of retrenchment. . . . The contract was made, and is binding.” See also Drew v. The Mayor, 8 Sup. Ct. N. Y. 443.
But it is unnecessary to decide whether the contract of a public officer to do official work at less than legal rates, is binding upon him; neither is it necessary to determine whether the contract in this case before the work had been done under it would have been binding. The question rather is, whether a private individual, having obtained certain work upon a contract to do that work for a certain sum, can, after he has done the work, repudiate his contract and recover a larger amount upon the ground that the statute has named the sum which, in the absence of any contract, the party should receive for such work. The statute says that the printer shall be entitled to certain fees — that is, it gives him a'right to such fees; but it is not one of those rights which he may not waive. A party may waive any legal right unless public morals or public policy prohibit the waiver. Does either prohibit a waiver in this case? Is the cause of public morals subserved by allowing a party who is free to accept or reject work, and who, in the exercise of that freedom, accepts an offer to do certain work at a stipulated price, after receiving and doing the work, to repudiate his contract and demand a higher price? Does public policy prohibit the public from availing itself of any reduction in the ordinary charges for advertising? We think not. If printers’ wages and the cost of paper and material fall so that the publisher of a paper will receive reasonable profit at prices less than the legal rates, we see no sufficient reason why the public may not fairly receive the benefit of such reduction. It will be perceived that rates are not named for county printing alone, but for all legal printing. An individual, seeking to sue a non-resident, must notify him by publication. For such publication, the statute fixes legal rates; rates-which control in the absence of a contract. But no publisher is compelled to do this publication. He may decline, and no process will compel him to do the work. Neither has any particular person the right to this kind of work. The party may select any paper in the county. There is as much freedom as in selecting a grocer from whom to buy your groceries. Suppose the legislature should pass a law that grocers should be entitled to receive a certain amount per pound for coffee, sugar, etc.: could it fairly be claimed that one might not sell for less? — that he must charge legal rates? Or, if the statute fixed the toll for grinding grain, or for crossing a ferry or a bridge, iá no contract valid at less than statutory rates? Similar is the sale by a printer of his services. Why must he be debarred the liberty of contracting, and compelled to charge more than ordinary market rates for such services? A special argument is made as to the charges for publishing the delinquent tax list. As to these, it is said that the lots sold pay them; that the county treasurer is directed to charge upon each lot the cost of advertising and sale; that he does and must charge the legal rate,'and that if the county may legally contract for and pay less, it is, as to the difference, speculating off the tax-payer. The fallacy of this is, that it assumes that the county treasurer must tax, as cost of advertising, the amount the printer might receive, and not that which he does receive. The statute does not sustain this assumption. It reads, that the treasurer shall sell, and continue to sell “until such parcel, or so much of each parcel, shall be sold as shall be sufficient to pay the taxes and charges thereon, including the costs of advertising and the fees for selling.” (Comp. Laws 1879, p. 960, §109.) It is the costs of advertising, that is, the actual costs, and not as respects the selling, the legal fees. If the county pays only five cents a tract for the advertising, the treasurer should charge that amount only against the tract. This not only harmonizes the statutes, but gives force to the different words employed in the section quoted.
Referring again to the section defining the powers of the county commissioners, we find that it gives them “ exclusive control of all expenditures.” Loes this mean simply that they are to audit accounts? — or does it not also give them power in the creation of debts? It seems to us the latter. It grants general control as to county expenditures, both as to items, amounts and parties. Of course, this general power may be and is limited, in many particulars, by other provisions'of the statute, but where not so limited, the general control is with the county commissioners. As they may select the janitor for the court house, and contract with him for compensation, so they may select the party to do the county printing and con tract with him for his compensation. They may not name the person to serve process, for the statute awards this duty to the sheriff, and the people elect the sheriff, but the county printer is not elected; he is not an officer. Neither need all the printing be given to one person; i. e., one may publish the delinquent tax lists, another the sheriff’s proclamations, and so as to all the varied matters which the law requires to be published.
Without pursuing the argument further, our conclusion is that plaintiffs, having contracted to do this work for a certain sum, having obtained the work by reason of the contract and having done the work, cannot now repudiate that contract and recover the amount to which the statute would have entitled them in the absence of a contract.
One other matter requires brief notice. The contract was for doing all the county printing. Plaintiffs offered to show 'that the commissioners had given some of the county printing to other parties, and claimed that in consequence of this breach by the commissioners, they could repudiate in toto and recover upon a quantum meruit. The court ruled that the contract controlled so far as it could be made applicable, and that plaintiffs could recover damages only for the breach, and could not repudiate the contract entirely. We think the ruling of the district court correct. (Usher v. Hiatt, 18 Kas. 195; Duncan v. Baker, 21 Kas. 99; Field on Damages, § 327.)
It will be noticed that the contract was not to do the county printing for a gross sum, but at specified rates for the different kinds of work. Hence there was no difficulty in making the contract applicable to all the work done.
There being no other question in the case, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the defenddants in error against the plaintiff in error, to recover a certain sum which they had paid him for a school-district bond that turned out to be spurious and worthless. The case was tried by the court, without a jury. A general finding and judgment were entered in favor of the plaintiffs, and the defendant alleges error.
The bond purported to be the bond of School District No. 6, Comanche county, and the court permitted testimony tending to show that there was no genuinely organized county, no such school district, and in the language of counsel’s brief, that “Comanche county was a howling wilderness.” And this seems to be the matter complained of; but surely this is testimony tending to show that the bond is spurious. If there were no such district as District No. 6, the bond was no genuine instrument; and if Comanche county was entirely uninhabited, and showed no signs of ever having been inhabited, it would very strongly tend to show that there was no organized School district within its limits. The defendant offered no testimony, and that which the plaintiff produced very clearly showed one of those swindling transactions and bogus organizations with which some of our western counties have been afflicted. The testimony was abundantly sufficient to sustain the conclusion of the court. The right to recover, under the circumstances of the case, is settled by the decision in Smith v. McNair, 19 Kas. 330, a decision which the writer of this opinion will not be apt to soon forget, as it cost him five hundred dollars, he being one of the parties who had sold the bonds in that suit to Smith & Son, and who had to reimburse them the amount they were by that decision compelled to pay.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On June 17, 1878, defendants in error (plaintiffs below) filed a petition in-the district court of Reno county, in the following words and figures (omitting title):
“And now come the said plaintiffs, J. McMurray and C. McMurray, partners as J. & C. McMurray, and complain of the said defendants, the said Water Power company, a corporation duly incorporated under ..the Jaws of the state of Kansas, and C. C. Hutchinson and W. E. Hutchinson, for that on or about the — day of April, 1876, the said defendants, desiring to construct a mill-race.from the Arkansas river into the city of Hutchinson, employed these plaintiffs to do a part of said work; that said mill-race was undertaken from a point on the Arkansas river about four miles in a westerly direction from the city of Hutchinson, and runs to Cow creek, and thence to and through a part of the city of Hutchinson, Kansas, and it was on this race these plaintiffs were engaged to work in the construction of the same; that these plaintiffs did a very large amount of work on said race from said Arkansas river to said Cow creek, on the pump and various appliances used in the construction of said race, and in perfecting not only as above stated, from the Arkansas river to said Cow creek, but also on other portions of said race, continuing from April, 1876, to the 25th day of April, 1878; that from time to time, as said work progressed, plaintiffs and defendants met and mutually stated their accounts between these plaintiffs and defendants, and that the following amounts were due to plaintiffs from defendants at the times they each bear dates, to wit:
1. Work done on race from the Arkansas river to Cow creek...§646 93
2. Work done on pump and scraping around flume............... 33 75
3. Work done on head-race, frame mill to pond.................. 333 55
4. Work done on pond and dam....................................... 79 70
5. Work done on dam, and livery in connection therewith..... 356 00
that the above accounts were stated by and between plaintiffs and defendants, as above set forth and agreed to by defendants as aforesaid, and said amounts are now due by defendants to plaintiffs, and unpaid; that said sums- of money amount in the aggregate to the sum of $1,449.93, and became due these plaintiffs on the 25th day of April, 1878, with interest from April 25th, 1878.
Houk & Whítela w, Aliys for Pl’ffs.”
The plaintiff in error (defendant below) filed a motion asking that the plaintiffs be required to make the petition more specific in the following particulars.:
“1. That they state in said petition fully the nature and conditions of the contract mentioned, and the precise time it was made.
“2.* That they state in said petition whether the said contract was in writing, or oral; and if in writing, that they attach a copy thereof to their petition.
“3. That they designate in their said petition the date at which the alleged stating of accounts took place.
“ 4. That they show what proportion of said fifth and last item was work, and what livery.”
The court overruled the motion, and this is the first alleged error.
It is stated in Chitty’s Pleadings that it is advisable in all declarations in assumpsit for the recovery of a money demand, (excepting against an infant, who cannot in law state an account,) to insei’t a count on an account stated. It seems to us, from an examination of the petition, that the pleader attempted to follow somewhat this old rule of pleading, and ingeniously prepared his allegations to recover on an account stated, and upon a failure to pro.ve a certain and precise sum was admitted to be due by the defendants, to fall back upon the proof of the general allegations in the petition, and recover the amount claimed, or any smaller sum, as upon an account. Had the plaintiffs below- relied solely upon an account stated, the only allegations requisite to set forth this form of action would have been:., 1. That the plaintiffs and defendants accounted together; 2. That, on such accounting, the defendants were found to be in the plaintiffs’ debt; 3. That defendants promised to pay the same; 4. That they have not done so.
. While we are of the opinion -that-'the usual manner of pleading a stated account, like the familiar allegations that the plaintiff had “bargained and sold,” or “sold and delivered,” that the “defendant was indebted to the plaintiff,” or “had and received money to the plaintiff’s use,” within the authorities of other states where they have codes similar to ■ours, is sufficient under our code, as it was under the practice before the code, yet if the defendant is likely to be embarrassed in his defense by such “common counts,” and objects to the plea in this form, he can, under the code (§119), require the pleading to be'made definite and certain. The express words of the code are, that “the petition must contain a statement of the facts ■ constituting the cause of action, in ordinary and concise language, and without repetition.” It is the purpose, therefore, of our system of pleading, that facts, and not law, must be alleged. The very ■object and design of all pleading by the plaintiff is, that the adverse party may be informed of the real cause of action, and may thus have an opportunity of meeting and' defeating it, if possible, at the trial. Frankness and truthfulness are commendable at all times, and under all circumstances, and as much so in pleadings as elsewhere. Uuder the practice before the code, the original form of the debt or items of account were of no importance at all in an action of indebitatus assumpsit, for an account stated, and the time of the accounting, need not have been alleged; but under the code, if the defendant wishes to take advantage of any want of certainty, precision, definiteness or consistency in the allegations of the charge, he may, by motion, attack the same, and require it to be amended. In this way, a plaintiff can be compelled to disclose the facts of his real cause of action; to set forth his special contract, if he has one; to state specifically the items of an account; and, under some circumstances, the time of accounting. In this way, the courts have it in their power, by encouraging these classes of motions, and by treating them as highly remedial and important, notwithstanding the many authorities sanctioning the use of the “common counts,” to shape the pleading into harmony with the words and spirit of the code. (Meagher v. Morgan, 3 Kas. 372.) Therefore, whether we regard the petition as an account stated, or an account and an account stated blended together, the trial court ought to have compelled the petition to be amended, as requested in the first, second, third and fourth specifications of the motion, in order that the precise nature of the claim against the Water Power company might have been clearly apparent, and the defendants unincumbered in their defense. The corporation and two individuals were sued together, and it was manifestly important to the corporation to be informed whether any special agreement at estimated prices was to be relied upon; also, if the contract was in writing, by which of its officers and agents it was signed. The date of the accounting was fairly demanded, and clearly the items of the work done and the livery furnished ought to have been separated. It was developed on the trial, that one of the principal questions in the case was, whether the the work was done and the livery furnished for C. C. Hutchinson & Co., or the Water Power company. The corporation claimed the account was a personal claim against C. C. Hutchinson, or C. 0. Hutchinson & Co. The plaintiffs below claimed that they had a special contract in writing for all the work done, which had been fully executed according to its terms. On its face, this contract purported to have been executed solely between C. C. Hutchinson and the said plaintiffs. Of course, under the pleadings, this condition of things led to much confusion and trouble on the trial. The joining of the corporation and the two individuals as defendants, under the general allegations of the petition, considering the facts subsequently developed, placed the corporation at a great disadvantage, and must have worked injustice. In the absence of the information demanded by the motion, the corporation was called upon to meet an account and an account stated, so huddled together under general allegations of fact and conclusions of law, as to render a successful defense almost impossible. As a corporation can only act through its officers and agents, the necessity for a statement of the actual facts constituting the cause of action of the plaintiff was greater than if the defendants were individuals.
In Emslie v. City of Leavenworth, 20 Kas. 562, we held the use of the old common-law “common counts” sufficient, in view of the overwhelming array of authorities from states having codes like ours; but we have never gone so far as to decide, that when the petition was properly attacked by motion, the plaintiff could not be forced to state the real facts constituting his cause of action. We favor petitions presenting single, clear and well-defined issues, rather than those concealing the actual facts under “glittering generalities.” Generally, the trial court has much discretion in allowing or refusing motions to make petitions certain and definite, yet, when it is apparent to this court that a party has been prejudiced by the overruling of such a motion, we ought certainly to interfere.
We do not deem it necessary to consider the other questions discussed in the briefs, for the disposition we now make of this case may render those of no practical importance.
The judgment will be reversed, and the case remanded ■with direction to the district court to sustain the motion to amend and reform the petition in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The record does not contain any of the evidence, but only the pleadings, findings of fact and conclusions of law made by the court. As shown by the record, the. facts of the case are briefly as follows, viz.: In 1870 the lot in,question was subject to taxation, and in that year, among other taxes, there was assessed thereon a sidewalk tax of $42.14. At this time one L. C. Challiss was the owner in fee simple of said lot, and had been for several years pre vious to that date. In 1869, L. C. Challiss having failed to pay the taxes due on this lot, it was sold in May, 1870, for $3.83, and bid in by the county treasurer; and in 1871 it was advertised for sale for the delinquent sidewalk tax above referred to. Thereafter, L. C. Challiss, desiring to evade the payment of this tax, commenced an action in his own name against the then county treasurer of Atchison county to enjoin the sale of said lot for such delinquent sidewálk tax for 1870, and obtained a temporary injunction against the county treasurer, enjoining a sale of said property, which injunction was, upon final hearing, duly dissolved by the judgment and decree of the district court of Atchison county, which judgment was thereafter affirmed by the supreme court of this state. (Challiss v. Parker, Treas., 11 Kas. 384.)
Thereafter, on January 12, 1874, the lot was sold to Anton Ostertag for $55.10, the amount of said sidewalk tax, and a tax-sale certificate issued to him. On the 29th day of March, 1879, Ostertag took out a tax deed on the lot, and the same was duly recorded. On May 31,1871, and after L. C. Challiss had commenced his suit to enjoin the collection of the delinquent sidewalk tax, he sold the lot in question to Samuel W. Millbank, and executed to him a warranty deed, containing full covenants of seizin, and full covenants against all liens, taxes and encumbrances, which deed was duly recorded. Said lot remained unredeemed, and the sale of May 20,1870, for delinquent taxes for 1869, amounting to $3.83, unassigned, and on December 27, 1875, the lot was sold under the provisions of “An act to provide for the sale of lands for taxes due and unpaid thereon,” approved February 27,1872, to one Frank Eansom for fifteen (15) cents, and a certificate was issued to him, on which he procured a tax deed on February 14, 1876, which deed was duly recorded. Nothing was said in the certificate or deed about the taxes of 1870, or any other than the taxes of 1869. On the 19th day of December, 1877, William L. Challiss, acting as agent for L. C. Challiss, procured a deed from Frank Eansom, whereby Eansom quitclaimed all of his right, title and interest in the lot to Wm. L. Challiss, who, for the consideration of the covenants in the warranty deed of L. C. Challiss to Samuel W. Millbank, on February 11, 1879, conveyed the lot by quitclaim deed to Millbank. Previous to April 1, 1879, L. C. Challiss was the agent of Millbank. On or about July 1, 1879, Ostertag took possession of the lot under his tax-deed, and erected thereon a house.in a good and' substantial manner, costing $300. ■ On the 6th day of August, 1879, L. C. Challiss (without the knowledge or consent of Ostertag, and after the house had been locked up by a contractor and employé of Ostertag,) did forcibly open the house in the nighttime, and then and there, without paying or offering to pay to Ostertag the amount of the sidewalk tax paid out by Ostertag, and without paying or offering to pay for the improvements, procured one Garlick to move into the house {'in the night-time), and thereafter forcibly retained the possession of the property from Ostertag. On the 4th day of September, 1879, Ostertag commenced his action in the court below, against Millbank, Challiss and Garlick, setting forth the facts constituting his cause of action, and praying for a temporary injunction against defendants from further occupying the premises, and from in any manner interfering with him in the quiet and peaceable use and occupation of the property, and from interfering with the plaintiff’s entrance upon said premises and into the building thereon situate, and his removing from the building all things that obstructed him in the free use and occupation of the same; and also praying judgment for all further proper relief. In the absence of the district judge from the county, the probate judge granted the injunction. Thereafter, on September 11,1879, defendant Millbank appeared and filed an answer and cross-petition, asking that the plaintiff’s alleged title and claim might be adjudged void and held for naught, and that he be enjoined from thereafter setting up or claiming any title, claim or interest in and to the property. Challiss and Garlick filed answers. The plaintiff filed a reply to the cross-petition of Millbank, reiterating substantially the allegations of the pe tition, and praying, that if Millbank should be adjudged the legal owner, that before he should be decreed the possession of the land that he be required to pay the amount of taxes paid by Ostertag, and the value of all lasting and valuable improvements.
Upon these pleadings and findings of fact, the court below held: That Ostertag was not entitled to the injunction and relief prayed for in his petition; that the sidewalk tax is a valid and legal tax, and that said lot stood charged with the payment of the same; that the said tax sale to Ostertag, and deed issued in pursuance thereof, were without authority of law; that Millbank was entitled to the relief prayed for in his cross-petition, upon the condition that he should pay to the plaintiff $55.10, the amount of the sidewalk tax, with 7 per cent, interest from January 12, 1874, together with the further sum of $200, the amount that said lot had been enhanced in value by the improvements erected thereon by Ostertag, which amounts were legal and valid liens on the lot. The costs were divided between the parties. The defendant Millbank excepted to the conclusions of law, and and now brings the case here for review.
We think this case is practically covered by prior decisions' of this court. It appears that Ostertag had a tax deed, that the lot was vacant, and that he took possession and erected a building upon it. Now, if at this time defendant had commenced his action to recover the possession, Ostertag would, under the decision in Smith v. Smith, 15 Kas. 290, have been entitled to his taxes and the value of his improvements before he was put out of possession. The notice required by § 601 of the code concerning occupying claimants is a notice by suit. Knowledge of an adverse title is not alone sufficient. Now if Millbank could obtain possession by legal proceedings only upon those conditions, may he, after taking the law into his own hands and in the night-time seizing forcible possession, come into a court of equity and enfore his possession without complying with those conditions ? If such were the rule, it would mean that equity invites a party to take the law into his own hands and commit a breach of the peace, with a promise of securing rights which he could not obtain by an action at law. We do not so understand the rule. Equity, it is said, follows the law; and where the law defines the rights of a party in possession, equity will enforce rather than destroy'those rights, and certainly it will not destroy those rights at the instance of one who has forcibly seized possession and ousted the possessor. There was no fraud or collusion on the part of Ostertag in taking possession. The lot was vacant, and had been vacant for years. ■He held a tax-sale certificate, and afterward a tax deed. He had paid his money into the county treasury for these evidences of purchase and title. He might rightfully — if he could peaceably and without any fraud or collusion — enter upon the lot and improve it. He of course knew that some one held the original title. He may have known of the existence of the other- tax deed, and it would have made no difference if there had been a dozen more tax deeds and he had known of the existence of them all. If no other claimant of the lot saw fit to take possession and improve, he could, leaving to any other party who had or thought he had a bet'ter title, to assert his rights in the courts. To say that he must determine at his peril the validity of his own tax title, and that if he mistakes and his tax title fails he must lose his improvements, is to render the occupying-claimant law of little force in tax cases. Whenever taxes are, in fact, not paid, and the proper authorities, because of such non-payment, make an actual sale in apparent conformity to law, and a party in good faith pays his money into the county treasury and receives a certificate of sale and a deed, he acquires such an equitable interest as will justify his taking possession of the lot, if vacant, and improving it. The law will respect his possession, and if it finally declares his title insufficient,, will compel compensation for his improvements.
But we are met with this objection: The sale to Ostertagwas a nullity because unauthorized by law. The taxes of 1870, including the sidewalk tax, were charged up upon the sale for 1869. Ransom, by his purchase, acquired both of the tax liens of 1869 and 1870. Mill bank’s subsequent purchase was a practical redemption; and having discharged his whole duty to the public by a purchase from the legal holders of all the tax claims, why should he be compelled to pay any money to-one who has ignorantly paid money into the county treasury, or pay him for improvements which he had never been asked to put upon the property ? Suppose, for instance, the lot owner paid his taxes at the proper time, and the officers, failing to enter the fact on the tax books, afterward sold the land as for non-payment of taxes, could the purchaser, upon the faith of such certificate of purchase, take possession and compel the lot owner to pay him the taxes and value of his improvements before surrendering possession ? or, if after sale for non-payment of taxes, the lot-owner goes to the treasurer and redeems: could the holder of the sale certificate thereafter improve the lot at the expense of the lot owner? Could he, if ignorant of the fact of redemption ? and if he could if ignorant, could he with full knowledge of the fact? Is not the duty to the lot-owner paramount to the duty to the tax purchaser, and should not the latter rather than the former suffer for the consequences of mistake or error on the part of public officers? We are not disposed to quarrel with this as a statement of the general rule of law, but two things seem to take this case out of that rule. Before the sale to Ransom, the treasury had received the money for this sidewalk tax, and the public officers had issued a certificate to the party paying, reciting that -he had purchased this lot. In other words, the public authorities had sold the lot for this delinquent sidewalk tax and received full pay. Now whoever else might challenge such sale, the public could not. It had received the money and issued its certificate, or bill of sale. It must abide by its action until such action was, at the instance of some party interested, set aside. It cannot sell and resell and sell again, and keep on selling as long as it finds anyone willing to buy. If a lot is irregularly sold to the county and the sale invalid, another sale may be made to it, (Morrill v. Douglass, 17 Kas. 291,) for in such a case no money is paid, and only a legal sale prevents a second sale; but a purchaser at even an irregular sale acquires rights which cannot be disregarded. He has paid his money, and may be satisfied with his title. The county has received the taxes, and cannot, of its own option and without returning the money, repudiate the sale. Now at a sale, irregular it is true, but nevertheless a sale, Ostertag had paid his money and received a certificate of sale on account of this delinquent sidewalk tax. This money had never been repaid to him. He was satisfied with the purchase, the public with the sale. Again thereafter the public sold the lot to Ransom. What for? As the papers show, simply for the taxes of 1869. No reference is made to the taxes of 1870, or to any subsequent taxes, and the only tax mentioned is that of 1869. Did he acquire any other tax lien than that of 1869 ? Evidently the county did not intend to sell any other, and he did not claim to be buying any other. It is said, however, that he bought more than the papers show, and that the county sold more than it intended to sell, and what it had already received full pay for on an attempted sale to another party, and this because the statute provides for a sale for all taxes due up to the time of sale. Now whatever of tax liens still belonging to the county such a sale will carry, in the absence of any recital (and for the purposes of this casé it may be conceded that it would carry all, though that may well be doubted), it seems clear that it ought not to be held to carry a tax lien of which the county was not equitably the owner, and full payment for which it had already received.
Again, it will be perceived that the purchase by Challiss of the Ransom title and subsequent conveyance to Millbank, was practically nothing but a redemption from the taxes of 1869. It was bought by W. L. Challiss, as agent for his brother, and conveyed to Millbank in satisfaction of the covenants in the deed to the latter. Hence, it is to be treated as a redemption from a tax sale, rather than as a purchase of a tax title. In such light, the case stands before us as a controversy between the holder of an irregular and defective tax deed, and the owner of the original title. The statutory protection must be accorded to the former.
This case has given us much trouble in determining the relative rights of the parties, and with much hesitation we have reached the conclusions above stated. We are not satisfied that the district court erred, and therefore its judgment must be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
PIorton, C. J.:
This was an action in the nature of ejectment, for the recovery of certain real property in Allen county. The plaintiffs in error (plaintiffs below) claimed title as heirs of Aaron Neal, deceased. The defendants in error (defendants below) relied for their title upon a guardian’s deed, of the date of March 22d, 1871. Counsel for the plaintiffs contends that the proceedings in the probate court, upon which the guardian’s deed was executed, were fatally defective and therefore of no validity. Several objections are taken to the proceedings. The (most material one is the failure of the guardian to give the security required by § 15, chapter 46, Comp; Laws 1879. That section reads:
“Before any such sale or mortgage can be made or executed, the guardian must give security to the satisfaction of the court, the penalty of which shall be at least double the value of the property to be sold or of the money to be raised by the mortgage,' conditioned that he will faithfully perform his duties in that respect and account for and apply all moneys received by him, under the direction of the court.”
The authorities differ as to the validity of guardians’ sales in the absence of security. Some hold such sales void, (Williams v. Martin, 38 Me. 47,) and others merely erroneous, (Lockhart v. John, 7 Pa. St. 137; Perkins v. Fairfield, 11 Mass. 227; Foster v. Birch, 14 Ind. 445.) We are inclined to believe the latter the true rule. Probate courts should cautiously observe the provisions of the section quoted, and are greatly negligent in permitting sales on mortgages by guardians without security; yet, we cannot hold that the failure to give security deprives the court of jurisdiction. It is an error of a court having competent and full jurisdiction, subject to reversal or avoidance by due proceedings. The absence of the security did not render the proceedings void, but only irregular.
The claims of counsel concerning the defects in the petition and as to other matters, are equally untenable. As the probate court of Allen county had the power to hear and determine the matters alleged in the petition, it had the power to decide wrongly as well as rightly. In the course of its proceedings, it became the duty of that court to decide whether the petition was sufficient for a sale of the premises. The court held it sufficient. As the petition presented a case for judicial determination, if the determination was erroneous, it was reviewable in the appellate court, but not a void or worthless determination. (Bryan v. Bauder, 23 Kas. 95.)
As to the force of judgments against infants on default, see Freeman on Judg., § 513; Blake v. Douglass, 27 Ind. 416; Pond v. Donechy, 18 B. Mon. 558; Smith v. Ferguson, 3 Met. 424; Simmons v. McKay, 5 Bush, 25; Joyce v. McAvoy, 31 Cal. 273; Martin v. Weyman, 26 Tex. 460; and McMurray v. McMurray, 66 N. Y. 175.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The writ in this ease is fatally defective in failing to show that a demand has been made on the defendants, to do the thing sought by this proceeding to compel them to dó. A demand and refusal are prerequisites to the institution of such proceedings. (The State v. Carney, 3 Kas. 88.)
Again, the several plaintiffs have no identity of interest. Indeed, if any suit can be maintained by the plaintiffs, each plaintiff' can sue alone, and the others are not necessary parties. In whatever aspect we may view the case, the plaintiffs have no joint action. (Hudson v. Comm’rs of Atchison Co., 12 Kas. 140.)
The motion of defendants to quash the alternative writ will be sustained, and the action dismissed. | [
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The opinion of the court was delivered by
Horton, C. J.:
The county board of Nemaha county, on January 14, 1878, adopted the following resolution:
“ Whereas, the statutes of Kansas provide that the board of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication of delinquent tax lists, treasurers’ notices, county printing, or any other county expenditures; and whereas, an underlying object of such power so conferred being the highest promotion of the best interests of the body politic; and whereas, the Seneca Weekly Courier and the Nemaha County Republican, papers published in Nemaha county, Kansas, respectively at Seneca and Sabetha, having general circulation in the county, and thus a medium of general information to the people of the county: It is hereby ordered by the board of county commissioners of Nemaha county, Kansas, that all county printing over which they, the said board, have control, shall be published in each of the above-named newspapers; from and after this date, the publisher of each paper obtaining for all of said matter so published, one-half legal rates, to be paid as authorized by the board of county commissioners, as provided by law; and that all orders and resolutions heretofore adopted by the commissioners’ court of this county, in conflict with this order, be and the same are hereby revoked, and thus made null and void.”
Of this resolution, Wren & Clawson, the plaintiffs, and the county treasurer of Nemaha county, had notice at the date of the publication of the delinquent tax list of 1878.
In 1879, the county treasurer, assuming that he had exclusive control of the publication of the delinquent tax list, furnished the list for 1878 to three papers of the county for publication, with notice that each would receive one-third of the legal rate allowed by law for such publication; and there was the further understanding with the plaintiffs, that if the other papers declined to publish the tax list upon these terms, that the plaintiffs should have the exclusive publication for their paper, and receive the full compensation allowed by law. The papers to which the list was given were, the Seneca Weekly Courier and the Nemaha County Republican, (the two papers designated by the county board,) and also the Seneca Tribune, published by plaintiffs. The list appeared in all the papers. The two designated by the county board have each received from. Nemaha county one-third of the legal rate, and the one-sixth that would be still due each under the resolution referred to, is held in abeyance for further action. The plaintiffs presented their account on January 14th, 1880, to the county board, for one-third of the legal rate provided by law. The claim was rejected, and payment refused. This action was then commenced to recover $295.70, being the full amount of fees provided by the statute for the publication of the delinquent tax list. The district court rendered judgment for the defendant for costs, and the plaintiffs bring the case here.
The question for our consideration is, whether the county board, or the county treasurer, has the legal right to designate the paper in which the delinquent tax list shall- be published ? Section 36,chapter 25, Compiled Laws 1879, being §1, ch.108, Laws of 1872, provides as follows: “The boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication -of delinquent tax lists, treasurers’ notices, county printing, or any other county expenditures.” This law was enacted in 1865, (§l,ch.29, Laws 1865,) was amended in 1868 by adding “provided, that all county printing shall be let to the lowest responsible bidder,” (§36, ch. 25, Gen. Stat. 1868,) and in 1872 this proviso was stricken out; (§1, ch.108, Laws 1872.) This section, substantially as it now stands, has been in force since 1865.
It is claimed by counsel for plaintiffs, that chapter 34, Laws 1876, relating to assessment and taxation, (ch. 107, Comp. Laws "1879,j confers upon county treasurers the exclusive control of the publication of the delinquent tax lists. One of the counsel, in his brief, to which we are referred, says: “Prior to the passage of chapter 34, Laws 1876, the county board had control, not only of all printing for which the county had to pay, but all, or nearly all, that was required by law to be done by other county officers in the discharge of their duties. But that act has made sad havoc of chapter 108, Laws 1872. It struck from section 1 of that chapter all the power conveyed in the language ‘exclusive control of all expenditures accruing in the publication of delinquent tax lists or treasurers’ notices,’ and has taken from the board, the power to control any printing which is now directed by law to be done by other officers, and for which the county does not in fact pay.” (Opinion of Atty. Geni., p. 61 of Second Biennial Report, 1879-80.) Counsel in this concedes that, prior to the adoption of the act of 1876 for the assessment and collection of taxes, county boards had control of the printing of the tax lists. The particular sections of the act of 1876 which are pointed out as giving to the treasurers the power of designating the paper in which those lists shall be published, are as follows:
“ Sec. 106. The county treasurer shall, between the first and tenth of July in each year, make out a list of all lands and town lots subject to sale, describing such lands and town lots as the same are described on the tax roll, with an accompanying notice stating that so much of each tract of land or town lots described in said list as may be necessary for that purpose will, on the first Tuesday of September next thereafter, and the next succeeding days, be sold by him at public auction, at his office, for taxes and charges thereon. And if any county treasurer shall at any time discover that any tract of land or town lot had been omitted to be put on the list of .delinquent taxes and sold for any preceding year, the said treasurer shall be required to place such omitted tract of land or town lot on the list of delinquent taxes for the current year, and sell the same as directed by this act in other cases.
“Sec. 107. The county treasurer shall cause the said list, with the accompanying notice, to be published in some newspaper published in said county, or if no newspaper be published in said county, then in one of general circulation in his county, once in each week for four consecutive weeks prior to the day of sale; and shall also cause to be posted up a copy of said list and notice in some conspicuous place in his office.
“Sec. 108. Every printer who shall publish such list and notice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such publication who shall fail to transmit such affidavit within fourteen days after the last publication. The county treasurer shall also make, or cause to be made, an affidavit or affidavits of the printing of such list and notice as above required; all of which, shall be carefully preserved by him :and deposited as hereinafter specified.” '
The position that any change was effected by these sections is wholly untenable, as these sections, or sections practically ■similar, were in force at the passage of chapter 108; Laws 1872, and were also in force as far back as 1860. (Comp. Laws 1862, ch. 197, §§36, 37 and 38.) Therefore, if prior to 1876, county boards had control of the publication of the tax lists, and the legal right to designate the papers in which those lists should be published, they continue to possess this power, as the statutes are virtually the same to-day as before the passage of the act of 1876.
Waiving, however, the concession of counsel and the •dates of the enactment of these several sections, we' see no difficulty in disposing of the case in favor of the power of the county board to designate the paper, under the well-settled rule for the legal interpretation of statutes. The rule is: All statutes in pari materia are to be read and construed together, as if they formed parts of the same statute, and were enacted at the same time. Within this rule the learned trial judge correctly held, that the county board designates the paper in which to publish the delinquent tax list, and thereby exercises the exclusive control over the éxpenditure for that purpose expressly provided for and in terms conferred by the act of 1872. The county treasurer, under .such order, causes to be published in such paper the tax list, for the time and in the manner provided by law, and thereby fully discharges his official duty. .With this construction, there is no conflict in the different sections. This construction harmonizes all the statutes, and gives force and effect to the language of each. The construction claimed for § 107, oh. 34, Laws 1876, by counsel of plaintiffs, nullifies §1, eh. 108, Laws 1872, and thereby violates a cardinal principle of construction. Further, such construction, contended for by counsel, would give the sheriffs of each county the legal right to designate the papers which publish the notices of election, (Comp. Laws. 1879, ch. 36, § 5,) and would also give county clerks the right to designate the papers to publish road notices, the meetings of the county boards, and other advertisements which they are expressly required by the statute to print in some newspaper. (Comp. Laws 1879, ch. 89, §3.) Thus the county board, the county clerk, the treasurer and the sheriff would each have a legal right to-designate an official paper. This would lead to many complications, and to inextricable confusion. The statute does-not demand or warrant such a construction. When the law says that the county treasurer shall “cause to be published,”' etc., and the county clerk shall “cause to be published,” etc.,, and the. sheriff shall “cause to be published,” etc., it means-that such officers shall publish their official notices and advertisements in the paper designated by the county board.
Counsel claim that there is no such thing as “the official-county paper.” (Opinion of Atty. Genl., p. 110, Biennial Report 1879-80.) This is-a mistake. The paper designated by the county board for the printing of the official notices- and advertisements of the various officers of the county, is-in fact the official paper of the county. The statute expressly recognizes an official paper. Sec. 75e, p.286, Comp. Laws-1879, reads as follows:
“The statement of the county treasurer, when completed,, shall be published once in the official newspaper of the county,, and a copy thereof posted on the inside of the door of the-treasurer’s office.”
The next section of the same chapter further provides:
“Should any county treasurer neglect or refuse to make- and publish the statement provided for in this act, he shall be liable to a fine of not less than twenty-five dollars for each and every day he shall refuse or neglect to make such statement, to be recovered by an action at law against such treasurer; said action to be brought in the name of the board-of county commissioners of the proper county.”
Counsel suggest that trouble would ensue under our ruling, if the county board failed to designate a paper in which the-delinquent tax lists were to be published. We answer, that we are not to presume that public officers will fail to perform. their official duty. In any event, we have no more right to suppose that a county board will be guilty of official neglect or misconduct, than a county treasurer. All the presumptions are, that these officers will discharge their duties. Perhaps, if a county board willfully refused to designate an official paper, the county treasurer would be justified in publishing the tax lists in any county paper which he should select. Such, however, is not this case. The statute really contemplates only one official paper in each county. Unnecessary trouble will arise as to the proof of publication of tax lists- and other official notices, if two or more papers are designated. A publication in one paper is sufficient, and while the board might wisely require the publication in that paper which has the largest circulation, as publicity is of paramount importance, the selection of more than one paper is inconsistent with the spirit of the statute. The record shows that the county board attempted to designate two. If the county treasurer had selected one of these, either the Courier or the Republican, it might have been considered the official paper for the publication of the tax lists. As the Tribune was not designated by the board, the treasurer had ño legal right to make any contract with the publishers of that paper to bind the county; and therefore, the plaintiffs are not entitled to recover in this action.
As a final argument against the right of the county board to designate the paper for the publication of the tax lists, it is urged that as the compensation that printers are allowed to receive for the publication of those lists is fixed by law, and as such compensation is a lien on the real estate and comes out of the real estate or its owner, the publication of the delinquent tax list is not county printing. This'argument is not sound. The compensation, that is the maximum compensation, for all legal publications is fixed by law, (Comp. Laws 1879, ch. 39, §17,') and therefore, if the establishment of such compensation controlled, the rule would be as applicable for the publications required of clerks, sheriffs and other officers as in the case of the publication of a delinquent tax list. We have decided, in Quigley v. Comm'rs of Sumner County, ante, p. 293, that a county, through the county board, may legally contract for and pay less than the maximum fees fixed by the statute for advertising tax lists. Again, while the fees charged for advertising those lists as a general rule are returned to the county through the various proceedings which result from tax sales, yet the county pays for it in the first instance, and the publisher looks to the county, and not to the land or any collections from the tax. sales, for his pay. That the county is to pay for such publications, is clearly shown by the provisions of § 51, ch. 25, Comp. Laws 1879. The section is: “The county clerk, in keeping the accounts of his county with the county treasurer, shall charge the county treasurer as follows: . . . With the amount paid by the county for advertising land and town lots for sale for delinquent taxes.” Tn the case at bar, the plaintiffs treat the fees for the publication of the tax list as a claim solely against the county.- ■ They have sued the county, and assert that the trial court erred in refusing to hold the county liable for their account.
Even if such publications are not in the strictest sense county printing, yet, as delinquent tax lists and treasurers’ notices are expressly named in §1, ch. 108, Laws 1872, and as there is no necessary conflict between this section and any of the sections of ch. 34, Laws 1876, the county board has the same power to designate the paper to publish such lists and notices as it has to designate the paper for the publication of county printing. As the county board has the power to contract for the publication of the tax lists at less than the statutory fees, as it must audit the accounts for the publication, as it must order them paid, and as they are to be paid out of the funds of the county long prior to their collection, and as, in some cases, they are never restored to the treasury, it is important that the county board, the financial agent of the county, should have the exclusive control of such expenditures. A part of this control consists in designating the paper in which the lists shall be published. The statutes upon this subject," construed and enforced together, give this control to county boards, and we would be violating the usual and ordinary rules of legal interpretation to transfer, by judicial construction, this control to county treasurers.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought under § 594 of the ■ code, and the petition alleged that Bishop, defendant in error (plaintiff below) had the legal title to, and was in the peaceable possession of, the land, describing it, and that the plaintiff in error (one of the defendants below), with other defendants, set up and claimed an estate and interest therein adverse to the estate and interest of the plaintiff, and prayed that they be compelled to show their title, and that it be adjudged null and void as against the plaintiff. Douglass filed a separate answer, and therein stated that he denied each and every allegation and averment contained in the petition, except that he admitted that he set up and claimed an estate and interest in the land adverse to the alleged estate and interest of the plaintiff, and demanded judgment in his favor. At the April term of the court for 1877, the case was tried upon the issues joined, to the court without a jury. The plaintiff, to maintain the issues on his part, produced and read in evidence three separate tax deeds, each dated May 6, 1872, and executed by E. D. Rose, county clerk of Jackson county, to the plaintiff, covering the lands described in the petition, and rested. No other evidence was offered. The court then gave a general finding for the plaintiff, and adjudged that he had the legal "title to, and was in the peaceable possession of, the premises, and entered a decree quieting title. Thejudgment cannot be sustained. Actual, or peaceable possession, which we have held synonymous with actual possession, is an essential averment in the petition. This averment was not proved; no evidence of actual possession was offered. The tax deeds could at most be only evidence of the right of possession and of title. They did not prove, or tend to prove, that the plaintiff ever had actual possession; hence, there was an entire failure of proof upon a material and essential issue.
This conclusion dispenses with any consideration of the other question presented, as a new trial must be awarded.
The judgment of the district court will be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J. :
July 8th, 1878, defendant in error commenced an action before L. S. Herbert, justice of the peace, Hiawatha township, Brown county, against plaintiff in error, on two certain promissory notes. Personal service was duly had. After a j udgment by default had been entered, defendant appeared, and upon his motion the judgment was set aside and the cause continued until August 19,1878, at which time the record recites the appearance of the parties, the filing of defense, and the cause continued by agreement until the return of defendant (plaintiff in error) from his nursery business, when it is to be called at once. November 7,- 1878, without any appearance of plaintiff in error, at the request of defendant in error Mann, the justice rendered judgment. A transcript of this judgment was filed in the district clerk’s office, Brown county, and an execution therefrom was placed in the hands of Stephen Hunter, defendant in error, as sheriff of said county, who was about to levy on and sell lot 107, Delaware street, Hiawatha, Brown county, when this proceeding was brought to enjoin the sale. March 3, 1880, a temporary restraining order was granted by the probate judge, which, upon final hearing before the district court, was dissolved. In reference to the trial on November 7, the record of the justice simply shows: “And now this 7th day of November, the time fixed by the court at the request of the plaintiff, this cause came on for hearing,-plaintiff appearing,” etc. In addition, upon the trial in the district court the following facts were established: That the cause was continued by agreement on August 19, until the return of Devinney from his nursery business, when it was to be called at once, the understanding being that in no event should the continuance be for a longer period than ninety days; that Devinney did return and go away several times between August 19th and November 7th; that prior to November 7th, Mann demanded that the cause be set for trial, and the justice, in accordance therewith, sel the trial for November 7th, and orally notified the attorney of Devinney thereof; that on November 7th, the day of trial, the attorney notified the justice that he had no defense, and that he might as well go on and render judgment, and that he would no longer have anything to do with the ease. This conversation was not at the exact place of trial, but near by. In fact, the attorney did not appear at the trial, neither did Devinney; nor did the latter have personal knowledge that the trial was to be had upon that day. The debt sued on was a just one, and Mann was entitled to judgment therefor.
Did the district court err in dissolving the injunction ? Clearly not. And this, whether we look at the record of the justice alone, or consider also the extrinsic facts. The judgment of the justice was not void. There was jurisdiction of the parties, and of the subject-matter. Not only had the defendant been served, but he had appeared. The continuance, being by agreement, did not oust the jurisdiction. It would not if it had been for over ninety days in express terms. (Garvin v. Jennerson, 7 Kas. 136.) Whatever irregularity there may be in the record in failing to show that Devinney had returned, or that he had received notice of the particular day set for the trial, and however sufficient this error might be held in proceedings in error, yet when attacked by injunction, and not by proceedings in error, the judgment cannot be considered void. It is a valid judgment, binding upon all parties until reversed.
And if we look beyond the record as above stated, and consider the other facts, it appears that Devinney had been back several times before this case was set for trial; that his attorney had notice of the day, and told the justice that his client had no defense, and to go ahead and enter judgment; and that in fact his client did have no defense; that the debt was a just one, and ought to be paid. Wherein here appears any ground for the interference of a court of equity, cannot be perceived.
The judgment will be affirmed.
Horton, C. J., dissenting.
Valentine, J-:
I hardly know how to decide this case. I know of no case like it, no precedent for it. It seems to me that proceedings, so irregular as the proceedings in this case before the justice of the peace were, can hardly be held in law to be valid. And yet I am not sure that they are utterly void. But Devinney himself is the principal cause of all this irregularity. It was really for his benefit that the irregular continuance was granted. And it was his failure (partially at least) to take any further notice of the case, that caused the irregular judgment to be rendered., When Devinney’s counsel was notified that the day for the trial had been fixed, either Devinney himself, or his counsel for him, ■should have made an appearance before the justice, so as to cure the former irregular proceedings, and not to do so was hardly acting in good faith on the part of Devinney toward the plaintiff. Devinney now resorts to a court of equity for relief from the effect of this irregular judgment. Perhaps a court of equity might relieve him when he has done equity. Perhaps when he has paid the debt and the costs which necessarily accrued in the case, a court of equity would enjoin the further enforcement of the judgment. But so long as he desires to reap an unjust advantage from irregularities brought about, partially at least, by himself, a court of equity will not assist him. If he has any strictly legal remedy (as contradistinguished from an equitable remedy), let him resort to such legal remedy; for a court of equity will not assist him, so long at least as he himself does not do equity. Upon the whole case, I am inclined to think, though with some doubts, that the court below did not err in refusing to enjoin the enforcement of said judgment. It must be remembered that the judgment was rendered upon two promissory notes, against which there was no defense. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal question presented for our determination is, who shall bear the loss occasioned by the embezzlement of F. W. Kroenke — Heald, the owner of the notes, or Cummins, who received the notes for collection? Counsel for plaintiff in error contend that as Cummins failed to receive any of the proceeds of the notes from Kroenke, he is not responsible for the loss, as he acted in good faith, and exercised ordinary care and diligence in all the transactions. Again, it is claimed by them, that Cummins received the notes for collection as a banker; that he was requested by Heald to send the notes to an attorney at law for collection; that in accordance with the request, he forwarded them to Kroenke; that Heald approved of his selection and action, and thereby that Kroenke was not the agent of Cummins, but of Heald only. In view of the evidence adduced upon the trial, and the special findings that Cummins received the notes as attorney at law “for collection,” and that the notes were to be collected by him, the latter claim has no support in the record. Therefore, we can inquire only as to the liability of Cummins under the terms of the receipts for the collections. The decision in Bradstreet v. Everson, 72 Pa. St. 124, is a leading case upon the legal interpretation of a similar receipt of a claim for collection. It is there stated that such a receipt “for collection,” imports an undertaking by the attorney himself to collect, and not merely that he receives it for transmission to another for collection, for whose negligence he is not to be responsible; that the attorney executing the receipt is therefore liable by its very terms for the negligence of the distant attorney, who is his agent; that he cannot shift responsibility from himself upon his client; that there is no hardship in this, for it is in his power to limit his responsibility by the terms of his receipt, when he knows he must employ another to make collection. See, also, Weeks on Att’ys, §117; Wharton on Neg., §753; 8 Ohio St. 465; 11 N. Y. 203; 79 Ill. 193; 83 Pa. St. 305; 13 Blatch. 237. The authorities are decisive against the relief of Cummins on the ground of his good faith, or the exercise of ordinary care and diligence. He took the notes “for collection;” he corresponded with Kroenke; he selected him as his agent; he sent the notes to him at his own instance, and as he must be held liable under the receipts for collections made by his own agent, he must suffer the loss occasioned by the fraud of-such agent.
Counsel question the correctness of the instruction of the court that Heald was entitled to interest from the time the money was collected: $173.75 was collected by Kroenke on January 15, 1878; and $256.75 was collected August 26, 1878. Heald was informed by Cummins early in November, 1878, that Kroenke had collected the notes and absconded. Plaintiff in error alleges no demand was made until November 25, 1878, and that the jury cast interest on the money from the dates of the collections. It is the general rule that an attorney who collects money must give his client notice thereof immediately and await instructions, and that no action will lie for the money collected by him until a demand is made, (Voss v. Bachop, 5 Kas. 59;) yet, when the collection is followed by an embezzlement of the monéy collected, no demand is necessary to maintain an action for the recovery of the money. As Cummin's was civilly liable for the fraud of his agent, and as the money was embezzled upon its collection, the instruction of the court was not erroneous. (Comp. Laws 1879, ch. 51, p. 509.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 2d day of September, 1879, Egerton R. Switzer commenced an action against John P. Wilvers, before R. H. Bishop, a justice of the peace in the city of Salina. He filed his affidavit and undertaking, and obtained an order of arrest for Wilvers. Thereon the latter was arrested. On the 3d day of September, 1879, on the affidavit and undertaking of Wilvers, the case was continued till October 1,1879, and afterward, by agreement, continued till November 15,1879, at which time Wilvers obtained a change of venue to E. L. Norton, a justice also for the same township. On the 16th day of January, 1880, the case came up for trial before E. E. Norton, justice of the peace, and Wilvers filed his motion to be'discharged from the order of arrest, “for the reason that the affidavit upon which said order of arrest was issued, was insufficient to justify the arrest of said defendant.” •Switzer objected to the motion, on the ground that said affidavit had once been judicially passed upon by R. H. Bishop, justice of the peace. The affidavit for the order of arrest was decided by the justice to be insufficient, which was ex•cepted to by Switzer, and leave obtained to file an amended affidavit, which was filed on the 23d day of January, 1880. On the 30th day of January, 1880, the justice decided the •amended affidavit to be insufficient, and discharged Wilvers from arrest, to which Switzer' excepted.
On February 21,1880, upon proceedings in error, the district court of Saline county affirmed the decision of the jus'tice, and the case is now here for our consideration. The affidavit for the arrest charged that Wilvers had begun to convert his property, or a part thereof, into money for the purpose of defrauding his creditors, and had property and rights in action which -he fraudulently concealed, and had begun to assign, remove and dispose of his property, or a part thereof, with intent to. defraud his creditors.
The facts claimed to justify the belief in the fraud charged were, in substance: That Switzer was a physician in attendance on Wilvers’ wife. Wilvers'was unable to get credit for medicine, and was owing therefor. Switzer assumed the debtj Wilvers selling him a colt as payment, which was left in possession of Wilvers. Wilvers then discharged Switzer, and, falsely pretending that he could sell the colt and would do so, and pay Switzer, obtained leave of Switzer to do so, but did not attempt to sell said colt and pay Switzer, but immediately-mortgaged the colt to another party (Dr. J. W. Jenney), giving to Switzer nothing, and refusing to state what the consideration of said mortgage was, but stating that “that was his business.”
We perceive no error in the ruling of the court. The affi davits show a sale of the colt to Switzer. The latter subsequently authorized Wilvers to sell the animal. Without authority, he executed a chattel mortgage in his own name to another party. The mortgage was worthless and void. Switzer has not parted with his colt, and is entitled to reclaim it of Wilvers, or of the alleged mortgagee. A power to sell does not authorize a mortgage. The facts do not sustain the specific charges of the affidavit; hence, the justice rightfully decided the affidavit insufficient.
If we assume that the plaintiff has ratified the execution of the chattel mortgage by claiming the proceeds, yet, as no allegation is made in the affidavit that the defendant fraudulently contracted the debt, or incurred the obligation for which suit was brought, the affidavit cannot be deemed good upon that theory.
If we construe the evidence as not showing a completed. sale to plaintiff, the affidavit is not sufficient, as the plaintiff had no right to direct the disposition of the colt or demand any account of the mortgage to Jenney.
It does not appear by the record that R. H. Bishop, the justice who issued the order of arrest,-ever heard any motion in the case to discharge Wilvers; therefore the objection to the action of E. L. Norton, in passing upon the motion as a justice of the peace, is without substance.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin for corn, and the question is, whether defendant in error had acquired title to said corn by an agreement with one T. W. Bailey, the former owner, or was it still the property of said T. W. Bailey, and subject to levy on an execution against him ? The case was tried by the court, without a jury. Special findings of fact were made in favor of the plaintiff, defendant in error. The testimony has not been preserved, and the case stands before us on the pleadings, findings, and judgment. The findings of fact and conclusions of law are as follows:
“The court finds as matters of fact, that on or about the 27th day of November, 1876, Thomas W. Bailey was indebted in a judgment of about one hundred dollars to Kennedy & Amsbury, and the constable, Scott Thomas, had-levied an execution in said judgment, upon corn standing in the field on the premises of said Thomas W. Bailey, being a part of the same corn in controversy in this action; that on the said 27th day of November, 1876, and for a long time previous, said Thomas W. Bailey was indebted to this plaintiff, J. S. Long, in the sum of about five hundred dollars, which indebtedness was secured by a mortgage given by said T. W. Bailey to said Long, upon a certain pair of mules, purchased by said Bailey from James J. Brimm, and upon other personal property; that at said date, said T. W. Bailey was indebted to said Brimm in about the sum of three hundred and sixty-five dollars; that on the said 27th day of November, 1876, in the presence of James A. Kennedy, James J. Brimm, and of Franklin Babcock, who was present as the agent and attorney of C. H. & L. J. McCormick, who also held a claim against said T. W. Bailey, and which he was endeavoring to collect from said Bailey, of which plaintiff had knowledge, the said T. W. Bailey agreed with this plaintiff, J. S. Long, that he would deliver on the premises of said plaintiff a sufficient quantity of corn, at the price of fifteen cents per bushel, to amount to the Kennedy & Amsbury judgment, and this plaintiff agreed, in consideration of said promise, to pay off and satisfy said Kennedy & Amsbury judgment, and both of said parties have performed their agreement; that at said time and place, said T. W. Bailey, in order to liquidate his indebtedness to said Brimm, agreed with said Brimm to deliver to him the pair of mules heretofore mentioned and five hundred bushels of corn, to be gathered by said Brimm out of the corn standing in the fields on the premises of said T. W. Bailey, and at the same time and place the said T. W. Bailey agreed to deliver to this plaintiff, J. S. Long, at the farm of plaintiff, and to be weighed on plaintiff’s scales, corn to the amount of two hundred and fifty dollars, at the price of fifteen cents per bushel, and in the rise up to twenty cents per bushel, on the delivery of which this plaintiff was to credit in that sum to said T. W. Bailey on his indebtedness to plaintiff, and to release the lien of his mortgage upon the aforesaid pair of mules, which T. W. Bailey had turned over to Brimm with Long’s assent;, that at this time said T. W. Bailey had about sixty acres of corn standing in the field on the stalks, not gathered; that on the 2d day of December, 1876, C. H. & L. J. McCormick duly obtained judgment against the said T. W. Bailey in the sum of one hundred dollars, and costs taxed at eleven and eighty-five one-hundredths dollars, before P. S. Soper, justice of the peace for Center township, Doniphan county, and on the 4th day of December, 1876, (some of the corn having, prior to that date, been delivered, under the agreement of November 27, hereinabove statéd,) an execution on said judgment was issued out of said justice’s court, directed and delivered to this defendant, who was a constable of said Center township, Doniphan county, and this defendant did, on the next day succeeding, levy the same upon about thirty acres of corn, not gathered, standing in the field, upon the premises of said T. W. Bailey, and taken as the property of said T. W. Bailey, and which is a part of the same corn which was owned by said T. W. Bailey at the time of making the above-mentioned contract with this plaintiff, and advertised the same according to law; that on the 14th day of December, 1876, before any sale of said property, this plaintiff brought this action of replevin against this defendant for the possession of the corn so levied on, and by virtue of said process of replevin, the sheriff of Doniphan county took said corn out of the possession of this defendant and delivered the same to this plaintiff; that the value of said corn is two hundred and forty dollars.
“The court further finds that the proof showed that such disposition and transfer were supposed and estimated at the time to take all the corn in the field, except what Bailey would want for his own use; that said Babcock being present, as the agent of McCormick, as has been stated, had knowledge of all the above agreement, and did not dissent nor notify any of the parties making said agreement that he objected thereto; and that he was as.ked to put the above agreement in writing at the time by the said parties, but stated to the other parties that it was unnecessary — that the contract not in writing was as good as though it was put in writing, and no writing was executed. This was stated in reply to a question by the other parties put to him.
“The court finds further, that the corn which this plaintiff was to have was not separated from the other in the field which Brimm was to have, or the surplus which would remain to said T. W. Bailey.
“ And as conclusions of law, the court finds that the property involved in this action was, at the commencement thereof, the property of this plaintiff, J. S. Long, and that he was entitled to the immediate possession of said property.”
Do these findings of fact sustain the conclusion of the court, that the title had passed from Bailey to Long ? It may be remarked in passing, that this is the controversy referred to in the case of Brimm v. Long, 22 Kas. 153, and one which the plaintiff in error has been very slow in bringing up for review. Perhaps the relationship of the two cases has caused the delay in this.
Piad the title to the corn levied on passed from T. W. Bailey to Long? As the corn had been the property of said Bailey, the levy was good, unless the sale had actually been completed and the title passed. A mere executory contract, an agreement to sell, would not.be sufficient. So long ás T. W. Bailey had the title and the right to control the property, it might be taken for his debts, notwithstanding any agreement he might have made to sell it. It is unquestionably true that the intent of the parties controls, and that if they intended a present vesting of title, it did in fact pass at once to Long, and that, though the actual delivery was to be made subsequently and under the management of the vendor, and though the exact number of bushels .was as yet unascertained. As Benjamin, in his work on Sales, §309, says: “Both these contracts” (the contract of sale and the contract to sell) “being equally legal and valid, it is obvious that whenever a dispute arises as to the true character of an agreement, the question is one rather of fact than of law. The agreement is just what the parties intended to make it. If that intention is clearly and unequivocally manifested, oadit qucestio.” But what was their intention? It is true in this case, as the learned author goes on to say: “ But parties very frequently fail to express their intentions, or they manifest them so imperfectly as to leave it doubtful what they really mean, and when this is the case, the courts have applied certain rules of construction, which in most instances furnish conclusive tests for determining the controversy.”
If the findings had shown that it was the understanding and intent of the parties that title should pass at once, we should be relieved of difficulty; but they certainly, in terms, assert no such thing. True, the conclusion to which the district court came was, that Long was the owner, but that is not a finding of fact, but a conclusion derived from the facts as previously stated. In other words, the district court affirmed, not that the testimony disclosed an intent to consummate the sale' and immediately pass the title, but that the facts as found, show such a passage of title. With this conclusion we cannot concur. It seems to us that the facts do not disclose an intent to transfer the title to. any specific property, and that it was not the understanding that the title to this particular thirty acres of corn should vest in Long. Several things indicate this. There was no delivery of the corn. Indeed, the contract expressly provided for a future delivery at a different place, and an unsettled time; and only upon such delivery was Long to credit the indebtedness, and release his lien upon the mules. Neither the specific article, nor the quantity, nor the price, was fixed. Two hundred and fifty dollars worth of corn was to be delivered on the farm of Long, but-whether 1666-f bushels or only 1250 would be required, depended on the time of the delivery and .the rise of the market. Could Long on the day of this contract have maintained replevin for 1666-f bushels of corn in that field? And yet if the title had passed, he could. Again, it appears that certain corn was to be delivered out of this sixty-acre field' to Long to reimburse him for paying the Kennedy judgment, five hundred bushels to Brimm to satisfy his debt, and from 1250 to 1666-f to Long on his debt. Now what relation did these parties sustain to each other in respect to this corn ? Was each the owner of a certain number of bushels in the field, as of a certain number of bushels of corn in a crib? In case of loss, did they lose pro rata? In case the quantity did not hold out, did they share the difference pro rata? Brimm was to gather his, Bailey to deliver Long’s. Was Brimm to have his first and anyway, and Long to look to the remainder for his corn?
Still again, Bailey had sixty acres of corn. The levy was upon only thirty. How did it happen that this thirty acres belonged to Long instead of the other thirty? Had Brimm appropriated the other thirty, or was it what was left for Bailey? Had Brimm gathered his corn, or was he owner of five hundred bushels in this that was replevied? The findings show that no separation was made in the first place, and do not show that any had been made since. How then was it that Long owned this that was levied on? But it may be said that Brimm and Long were the joint owners of all, and that therefore Long could recover because the defect of parties plaintiff was not raised by demurrer or answer. The findings, however, show that Bailey was supposed to own some; that after he had delivered to Brimm and Long all he 'contracted, it was believed there would be a remainder for his own use. How much that remainder was supposed to be, or in fact was, we are not advised. ■ Perhaps enough to pay the execution in satisfaction of which this levy was made. If so, was it exempt? — and whether exempt or not, what right has Long to replevy such surplus from the constable’s hands?
Still further, the findings show that some of the corn contracted for had been delivered to Long, but how much is not shown. He was to receive $250 worth. If -he had already received $100 worth, how does he still own, and how can he maintain replevin for, $240 worth?
We have made these various suggestions in no captious spirit, but because they serve to show that the facts do not indicate a present passage of title, but the reverse, and only an agreement to sell and deliver an unascertained quantity of corn. They suggest very forcibly the second of the rules laid down by Mr. Justice Blackburn, (Benjamin on Sales, § 319:) “Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend'on'the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the .property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.” Here, the price was unsettled, to depend on the market at the time of delivery, and the amount to be delivered was to vary inversely as the price. How, then,-can it be said that the title had passed?
We think, upon the findings, the conclusion of the district court was erroneous, and that the judgment must be reversed, and the case remanded with instructions to render judgment in favor of plaintiff in error, defendant below, for the amount of the execution in his hands.
All the Justices concurring. | [
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Per Curiam:
This is an original uncontested disciplinary proceeding. The parties stipulated to the following facts:
William S. England was a 1990 graduate of the School of Law of the University of Missouri-Kansas City. He was admitted to practice in Missouri in the same year. In 1992, respondent was retained by CheckRite International, Inc., (CheckRite) to collect bad checks issued by Missouri and Kansas residents to customers of CheckRite. Respondent sought and obtained admission to the Kansas bar in 1992 in order to collect CheckRite checks in Kansas.
In the summer of 1993, CheckRite terminated respondent’s employment. At the time of the termination respondent had possession of 363 checks, with a face value of $19,514, which had been turned over to him for collection by CheckRite. Despite repeated requests for the return of the checks, the checks were not returned. Complaints were filed with the office of the Disciplinary Administrator by CheckRite and one of its customers (Jiffy Lube). A Kansas City area attorney was assigned the investigation. After contact by the investigating attorney, respondent turned over checks in his possession to the attorney as well as $882.78 from his trust account which was the property of CheckRite. Forty checks were found to be unaccounted for. Complainants did not seek restitution for the missing checks.
The hearing panel found respondent had violated MRPC 1.3 (1994 Kan. Ct. R. Annot. 297) (failing to act with reasonable diligence and promptness in representing a client); MRPC 1.4 (1994 Kan. Ct. R. Annot. 302) (failing to keep a client reasonably in formed about the status of a matter and promptly complying with reasonable requests for information); MRPC 1.15(b) (1994 Kan. Ct. R. Annot. 332) (failing to notify a client’of the receipt of funds or property in which the client has an interest); and MRPC 1.16(d) (1994 Kan. Ct. R. Annot. 338) (failing, upon termination of representation, to take reasonable steps to protect a client’s interests).
The panel then made the following additional findings and recommendation of discipline:
“MITIGATION AND AGGRAVATION
“The panel is advised Respondent has no prior disciplinary record. There was no evidence or suggestion that Respondent sought to enrich himself by his conduct. At the hearing, Respondent accepted full responsibility for his actions and apologized for his behavior. Respondent stated during the late summer and fall of 1993, he did not intentionally fail to timely respond to CheclcRite. Respondent attributed the 'dosing of his office and change of his address to his problems with receipt of mail.
“Respondent is not actively practicing law at this time. At the time of the complaints, Respondent’s legal business consisted primarily of the CheclcRite account, except for some minor traffic offense cases in the State of Missouri. Respondent is inexperienced in the practice of law.
“Respondent was suspended by tire Cleric of die Appellate Courts of Kansas and the Office of Continuing Legal Education on November 4, 1993, for fading to comply with continuing legal education requirements and failure to pay his fees. He was reinstated January of 1994 after demonstrating compliance.
“During the summer of 1994, Respondent assisted an attorney-friend in Missouri on some personal injury cases. When asked by the panel, Respondent candidly admitted he has again this year failed to complete his CLE requirements for the State of Kansas or pay his fees. Respondent has been notified he has until November 1, 1994, to satisfy his continuing legal education requirements and pay his fees.
“RECOMMENDATION
“The Deputy Disciplinary Administrator has recommended that Respondent be publicly censured due to his lack of experience in the practice of law, unselfish motives and his cooperation with the Office of the Disciplinary Administrator in the later stages of its investigation and the disciplinary proceedings. The panel will accept this recommendation due to the state of the record before it that Respondent apparently has made restitution to the complainants’ satisfaction and this is Respondent’s first disciplinary complaint. The panel further notes there was no evidence presented that Respondent has practiced law in Kansas since his recent notice for noncompliance from the Office of Continuing Legal Education.”
It should be noted, as an update, that respondent failed to satisfy his 1994 continuing legal education requirements or pay the required fee. He was suspended for this noncompliance in November 1994 and remains suspended.
The court, after due consideration, accepts the panels findings, conclusions, and recommendation of published censure.
It Is Therefore Ordered that William S. England be, and he is hereby, disciplined by published censure 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. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Mario S. Fisher from his convictions for one count of aggravated kidnapping, six counts of aggravated robbery, six counts of kidnapping, and one count of aggravated battery. He was sentenced to a controlling term of life plus 15 years to life.
Fisher contends the trial court erred in refusing to allow him to withdraw his waiver of a jury trial and to appoint different counsel to represent him. He also contends evidence concerning the Spears Restaurant robbery is insufficient to establish the movement required to prove aggravated kidnapping and kidnapping. Two other errors claimed are that the aggravated kidnapping and aggravated battery convictions are multiplicitous and that the trial court abused its discretion in failing to justify on the record a disparity in sentencing between Fisher and two other persons convicted in the Spears Restaurant robbery.
Fisher’s convictions arise out of three robberies. Two of the robberies occurred the same morning (Bib & Rib Restaurant and Kentucky Fried Chicken). In both incidents two individuals wearing nylon stocking masks and armed with handguns entered, took money from cash registers and persons present, locked the victims in walk-in coolers, and left. The victims were unable to identify the defendant as one of the robbers in either robbery.
Three days later, the third incident occurred at Spears Restaurant. As with the first two incidents, two men wearing nylon masks and armed with guns entered the restaurant. They took money from the register as well as a money clip from the owner, Randy Spears, and a wallet from a customer, Gary Howard. One of the robbers then ordered the manager, Laurie Traffas, to open the safe. Spears told the men that he could open it. The safe was a cylinder floor safe. To get into the lower portion of the safe a key was needed. The key to open the safe was in the office. One of the robbers said, “Let’s go get it.” As Spears stood up to get the key, the robber hit him on the head with the butt of a gun. The force of the blow knocked Spears to his knees, and he began bleeding profusely. Traffas and Spears then walked through the waitress station, down a hallway, and through the kitchen to the office with the robber following them. Once in the office, Traffas obtained die key. The robber then picked up Traffas’ purse, and the three returned to the front of the restaurant. Spears unlocked the safe with the key and placed money from the safe in Traffas’ purse. The robbers then asked where the walk-in freezer was, but after they received no response they left.
Wichita police officers had arrived at the scene and were waiting outside the restaurant. They could see through plate glass windows and observe the front of the restaurant. They watched the two robbers run out of Spears Restaurant and enter a white car parked at the front entrance with its headlights on and engine running. After a vehicle chase, the white car hit a pole and came to a stop. Two men exited the car on the passenger side and one exited on the driver’s side. All three were taken into custody after a foot chase. The defendant was identified as the driver of the car and the person sitting in the car while the robbery took place. There was one handgun in the front seat of the car and one in the back seat. Additionally, in the back seat was Traffas’ purse and the bank bags from die Spears robbery.
Spears and Traffas both identified two individuals as the ones who robbed the restaurant, but they did not identify the defendant as one of the robbers. Howard was unable to identify any individuals, including the defendant, as the robbers.
The defendant gave a confession to the police. He admitted diat he committed the Bib and Rib and Kentucky Fried Chicken robberies with Gilbert Thomas; a man named Randy was driving the white car during those robberies. Both the defendant and Thomas were wearing pantyhose masks and displayed weapons, but the defendant did not think his gun was loaded. The defendant’s “job” was to tell eveiyone to get on the floor, and Thomas told everyone to get into the freezer. They split the money taken in the robberies three ways.
The defendant also admitted to the police his involvement in the, Spears Restaurant robbery. He initially told the police he asked for a ride from two strangers in a white car. The two men decided to stop for some food, and they went into Spears while the defendant remained in the back seat of the car. Ten minutes later, the men ran out of the store with guns in their hands, and the driver told the defendant to get into the front seat and drive. The defendant jumped over the split front seat and drove the car away. After the car hit a telephone pole, the men told him to run, and he did. The defendant insisted he did not know either of the men or that a robbery was going to occur. A short time later the defendant changed his story and admitted that he knew the men and that he initially drove to Spears, then moved to the back seat while the two men went inside, and moved back to the front seat to drive away.
The next day the defendant changed his story about the Spears robbery again. He admitted that he was with Andre Jackson and Gilbert Thomas. The three of them stopped at Dillons to buy some gloves and pantyhose. Jackson and Thomas told the defendant to stay in the car and drive around to the front of Spears, which he did while Jackson and Thomas went in with guns. When they came out, the defendant drove off. The defendant admitted that he knew they were planning a robbery, but he denied knowing where the robbery would take place. They intended to split the money from the robbery three ways. The defendant also admitted that he had lied the night before in giving his story.
The defendant gave a different story at trial. He insisted that he was home sleeping on the morning of August 8, 1992, when the Bib and Rib and Kentucky Fried Chicken incidents occurred. He denied being involved in a robbery that day. The defendant’s cousins also testified that he was at home during the morning those robberies occurred.
The defendant did admit at trial that he was with Jackson and Thomas on the day of the Spears Restaurant robbery. He testified that he was driving Thomas’ girlfriend’s car and they were drinking beer and gin. Thomas said he was hungry and told the defendant to pull into Spears. The defendant had no money, so he waited in the car listening to music while Jackson and Thomas went inside. About 10 minutes later they came back acting panicky, and the defendant realized that Thomas had a gun. Thomas told the defendant, “Shut up. Drive, mother-fucker,” so the defendant drove away past the police. The defendant testified that at one point during the chase he told Thomas and Jackson he was going to stop the car and run, but Thomas pointed his gun at the defendant’s head so the defendant kept driving. After the car hit a telephone pole, the defendant ran away as he was scared of going to jail because of the high-speed chase. The defendant insisted that there was no mention of a robbery before Jackson and Thomas went into Spears. The defendant testified that he only confessed to the police because he was told that if he confessed he would get to go home or get probation, that if he did not confess they would “hang my ass in court,” and that Thomas had already implicated him.
Following a bench trial, the court convicted the defendant of two counts of aggravated robbery and one count of kidnapping in the Bib and Rib incident; two counts of aggravated robbery and four counts of kidnapping in the Kentucky Fried Chicken incident; and two counts of aggravated robbery, one count of kidnapping, one count of aggravated kidnapping, and one count of aggravated battery in the Spears Restaurant incident. The defendant was acquitted of robbing Gary Howard of his wallet in the Spears incident because the charging information was insufficient.
The district court sentenced the defendant to 15 years to life for each of the six aggravated robbery convictions, 15 years to life for each of the six kidnapping convictions, life imprisonment for the aggravated kidnapping conviction, and 3 to 10 years for the aggravated battery conviction. All sentences were imposed concurrently except the life sentence for aggravated kidnapping, which was imposed consecutively. A motion to modify sentence was denied.
I. JURY TRIAL AND NEW COUNSEL
A jury trial was initially scheduled for November 9, 1992. It was continued to November 30, 1992, upon the defendant’s motion and later to December 7, 1992, again upon the defendant’s motion. On December 3, the defendant requested another continuance. The motion noted that defense counsel had never before tried to a jury a case involving a class A or B felony and sought more time in which to prepare for trial. A hearing on the motion was held on December 4, 1992. The defendant’s counsel stressed that additional time was needed for trial preparation, including time to interview the victims in the case as well as potential alibi witnesses. Counsel stated that he was not fully prepared to go to trial on December 7 as scheduled. Judge Royse denied the motion for continuance, noting that it was the defendant’s third such motion. Judge Royse also noted that the defendant did not seek to obtain investigative services until after the first trial setting and that there was no explanation as to why the defense had not yet interviewed witnesses in light of the State’s success at contacting the witnesses.
The defendant made an oral motion to waive jury trial on December 4, 1992. The following colloquy occurred:
“THE COURT: Mr. Fisher, have you had an opportunity to visit with Mr. Seaton [defense counsel] about this waiver of a jury trial today?
“THE DEFENDANT: Yes.
“THE COURT: And is it your desire to waive a jury trial?
“THE DEFENDANT: Yes.
“THE COURT: You understand, sir, that you have a right under both the Federal and State Constitutions to have a jury trial in this case?
“THE DEFENDANT: Yes.
“THE COURT: And you understand that if you waive a jury trial you give up your right to a jury trial and you will not have a jury trial in this case?
“THE DEFENDANT: Yes.
“THE COURT: And you understand that what will happen, sir, will be that a judge, sitting alone, will hear tire evidence and will make a determination whether you are guilty or not guilty, having held the State to the burden of proof beyond a reasonable doubt? It’s a long question. Do you understand a judge will decide whether you’re guilty or not?
“THE DEFENDANT: Yes.
“THE COURT: And that the judge will use the standard of beyond a reasonable doubt in evaluating the evidence that’s presented?
“THE DEFENDANT: Yes.
“THE COURT: Is it your desire to waive your jury in this case, Mr. Fisher?
“THE DEFENDANT: Yes.”
Judge Royse apparently granted the motion, though the court made no ruling on the record. The defendant then requested a December 31, 1992, bench trial setting. Defense counsel stated, “I’m not really trying to buy time as opposed to just waiving the jury trial based on some negotiations that the District Attorney and myself have entered into, frankly, and I need some time to get those squared away and get things worked out with the Court’s permission, we would ask that the Court set the bench trial date of the 31st of December.” Judge Royse denied the request, and the trial remained scheduled for December 7,1992. On that date, the trial was rescheduled for December 31, 1992.
On December 29, 1992, the defendant filed a pro se motion seeking to withdraw his waiver of jury trial and to appoint new counsel to represent him. The motion was drafted by defense counsel at the defendant’s request. The defendant provided the following reasons in support of his motion:
“1. That his attorney, Richard H. Seaton, Jr., forced him into a waiver of jury trial entered December 4, 1992.
“2. That said Waiver of Jury Trial was not a knowing, willful and intelligent waiver.”
Judge Clark denied the defendant’s pro se motion summarily.
The defendant argues the trial court abused its discretion in denying his motion to withdraw jury trial waiver and to appoint new counsel.
In State v. Anderson, 243 Kan. 677, Syl. ¶ 3, 763 P.2d 597 (1988), this court stated, “A waiver of trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he was doing, cannot afterward be withdrawn except in the court’s discretion.” The parties in Anderson agreed that the defendant had validly waived his right to a juiy trial. 243 Kan. at 680. The defendant then sought to withdraw the waiver, and the trial court, by Judge Clark, denied the motion summarily. The defendant renewed his motion immediately prior to trial, and the court, by Judge Watson, again denied the motion. This court found no abuse of discretion in the denial of the motion.
The defendant points out that Judge Royse made no findings on the record that his waiver was knowing and voluntary. He reasons that the circumstances of his waiver show it was not knowing and voluntaiy; rather, the waiver was done after a motion for continuance was denied and was done because defense counsel was unprepared for trial the following week and the waiver had the convenient effect of ultimately giving counsel more time to adequately prepare for trial. The defendant acknowledges that the record is devoid of any direct evidence that supports the inference that his trial counsel forced him into waiving his right to a jury trial in order to gain more time to prepare for trial, but he reasons that the cause of the lack of evidence is that the trial court failed to conduct an inquiry into the merits of the defendant’s motion. The defendant points out that Judge Clark denied the motion to withdraw waiver summarily. Moreover, Judge Deer refused to permit the defendant to make a statement prior to his bench trial.
In Anderson, 243 Kan. at 680, the defendant’s first motion to withdraw his waiver of jury trial was denied summarily. His counsel then renewed the motion at trial, and it was again denied. This court stated: “Any error by Judge Clark in ruling upon the motion in defendant’s absence was clearly corrected when the motion was presented before Judge Watson in defendant’s presence.” 243 Kan. at 680. The defendant also complained that the trial court did not let him personally address the court in support of his motion. This court stated: “Anderson was personally present and was represented by competent counsel who was capable of articulating any concerns or arguments the defendant wanted to convey to the trial judge in connection with his motion to withdraw the waiver. We find no error.” 243 Kan. at 681.
The defendant distinguishes Anderson from the case at bar because here, “not only was the motion for withdrawal of waiver of jury [trial] not heard at any time, but that, to compound the original error, this defendant was twice denied his right to read a statement to the court which most probably dealt with this issue.”
The State asserts that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw his waiver of jury trial. The State argues that the reasons given by the defendant in support of his motion to withdraw waiver were conclusory in nature and therefore did not require a hearing before the court ruled on the motion, citing State v. Jackson, 255 Kan. 455, 874 P.2d 1138 (1994). The State reasons that the files and records accessible to the court indicated that the defendant was not forced to waive his jury. The defendant made his waiver in open court with defense counsel present, and he expressed at that time his understanding of the right to a jury trial and the court’s duty to find him guilty beyond a reasonable doubt. Moreover, the State points out that defense counsel told the court that gaining time to prepare for trial was not the reason for the waiver.
In Jackson, 255 Kan. 455, the defendant pleaded guilty, was sentenced, and three weeks later filed a pro se motion to withdraw his plea of guilty. His handwritten motion to withdraw plea alleged that he was extremely pressured and pressed into entering the plea, his counsel was insufficient, he was compelled to plead guilty, and new evidence had been discovered. 255 Kan. at 456. This court held that the trial court did not abuse its discretion in summarily denying the motion to withdraw plea. This court stated: “[I]f there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on the motion, then there is no requirement that a hearing be held.” 255 Kan. at 461. This court held that Jackson had not alleged facts sufficient to require a hearing on his motion because he had stated mere conclusions. We stated: “Mére conclusions of a petitioner for which no evidentiary basis is stated or appears are not sufficient basis for relief from conviction.” 255 Kan. 455, Syl. ¶ 5.
The record here reflects that the defendant’s waiver of his right to a jury trial was knowing and voluntary at the time it was made. The defendant had the opportunity to consult with counsel about the waiver. He was informed that he had the constitutional right to a jury trial and that by waiving the jury trial a judge would determine whether he was guilty under a standard of proof beyond a reasonable doubt. The defendant indicated that he desired to waive his right to a jury trial. The defendant’s pro se motion to withdraw the waiver asserted that he was forced by defense counsel into waiving his jury and that the waiver was not knowing, willful, and intelligent. However, the defendant set forth no evidentiary basis for his assertions. There is no evidence in the record, other than the defendant’s conclusory statements, that his waiver was not knowing and voluntary.
The defendant was present at the hearing on his motion to waive jury trial. He engaged in a brief colloquy with the court concerning the waiver. He made no indication at that time that he was waiving his jury in the hopes of gaining more time for counsel to prepare for trial. When the defendant’s counsel asked for a December 31 bench trial date, he specifically informed the court that the waiver was not done to gain additional preparation time. Moreover, when Judge Royse denied defense counsel’s request to schedule a bench trial for December 31 and left the trial scheduled for December 7, the defendant did not then speak up and ask to withdraw the waiver.
The trial court’s failure to conduct a hearing before denying the defendant’s motion to withdraw the waiver was not an abuse of discretion in light of the defendant’s failure to raise a substantial issue of fact concerning the waiver. The record shows a knowing and voluntaiy waiver of the right to a jury trial. The defendant’s allegation that he was forced into waiving his jury is not supported by the record. The defendant has not shown that the trial court abused its discretion in denying his motion to withdraw his waiver of a jury trial.
II. KIDNAPPING AND AGGRAVATED KIDNAPPING
Prior to trial, the defendant moved to dismiss the charge of aggravated kidnapping in the Spears Restaurant incident. He argued the movement of Randy Spears to the office to obtain the key to the safe was only incidental to the crime of robbery and was not sufficient to support a conviction for aggravated kidnapping. The trial court denied the motion, finding that the movement of Spears from behind the cash register, through a waitress station, through a hallway, through the kitchen, and into the office was not slight or inconsequential and that the movement lessened the risk of detection and made the crime easier of commission.
The defendant renewed his motion at trial. The parties briefed the issue, and the court heard argument. The court again denied the motion.
On appeal, the defendant argues that the evidence was insufficient to support a conviction for the aggravated kidnapping of Randy Spears and also for the kidnapping of Laurie Traffas. He reasons that the movement of Spears and Traffas from the safe to the back office to obtain a key to the safe was incidental to the crime of robbery and was insufficient to constitute kidnapping.
K.S.A. 21-3420 defines kidnapping in relevant part as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . [t]o facilitate flight or the commission of any crime.” Aggravated kidnapping is kidnapping where bodily harm is inflicted upon the person kidnapped. K.S.A. 21-3421. The State charged that the kidnapping of Traffas and the aggravated kidnapping of Spears were done to facilitate the commission of the crime of robbery or aggravated robbery.
Both the defendant and the State cite State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). Buggs is the leading Kansas case which discusses in depth the crime of kidnapping and the elements necessary to establish the offense where a taking or confinement occurs to facilitate the commission of another crime. This court stated:
“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 tire crime ‘easier.’ ”
“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 other crime;
(b) Must not be of a kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. 203, Syl. ¶¶ 9, 10.
In Buggs, the victims were accosted outside a Daily Queen at the fringe of the parking lot, where they were subject to public view. The defendants forced them to return to the relative seclusion of the inside of the closed restaurant, although the robbery could have been accomplished outside the store or without forcing the victims into the store. This court held that the movement from outside the restaurant to inside the restaurant substantially reduced the risk of detection and was a taking or confining necessary to facilitate the commission of a robbery and a rape. 219 Kan. at 216-17. This court also gave examples, subject to qualification, of the extent of taking or confining necessary to support a kidnapping, stating:
“For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.” 219 Kan. at 216.
The defendant argues that the movement in this case is indistinguishable from “[t]he forced direction of a store clerk to cross the store to open a cash register,” which Buggs said is not a kidnapping.
The State, conversely, contends the Buggs example and the case at bar are distinguishable: In the case at bar, the robbers moved Spears and Traffas through three or four doors to an area not readily accessible to the public 100 feet away, giving the robbers access to money from the safe and Traffas’ purse. The State reasons that the movement was not slight or inconsequential or inherent in the crime of aggravated robbeiy because the aggravated robbery could have been completed without moving Spears and Traffas to the office. The robbers had already taken money from the cash register and could have foregone the money in the safe or retrieved the key from the office without taking Spears and Traffas to the office. Moreover, the State reasons, the movement and confinement made the crime regarding the safe substantially easier of commission and substantially lessened the risk of detection because the safe would have been virtually impossible to open without the key and because the robbers spent less time in the restaurant.
Both parties also cite State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985). In Pink, the defendants moved two victims into a cooler and then removed one victim so she could open the cash registers and attempt to open the safe. This court held the evi dence sufficient to support two counts of kidnapping, stating: “The forcible moving of the victims to the cooler in order to facilitate the robbery was clearly a kidnapping within the meaning of the statute and State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976).” Pink, 236 Kan. at 729-30. The defendant stresses that the fact one victim was taken throughout the inside of the store to open the cash registers and safe was not relied upon by the Pink court in sustaining the kidnapping convictions. The State refers to Pink as a kidnapping case where the victim was taken from the cash register area to the office where the safe was located. We find Pink inapposite. It made no difference in Pink whether the victims were moved throughout the store or not because placing them in the cooler was sufficient to establish the kidnapping; this court simply did not address or express an opinion as to whether the movement throughout the store would or would not have been sufficient for a kidnapping conviction.
Examples of cases where this court found that a kidnapping occurred include the following: State v. Alires, 246 Kan. 635, 792 P.2d 1019 (1990) (defendant forced victim of convenience store robbery out of store and onto combine in parking lot to hide the fact that a robbery was in progress and to facilitate escape); State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984) (defendant moved victims from front display area of store to office at back of store before committing attempted murder); State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980) (defendant forced bank employees into bank vault and attempted to lock the vault door to facilitate escape); State v. Nelson, 223 Kan. 572, 575 P.2d 547 (1978) (victims ordered into unlocked refrigerator during robbery of restaurant); State v. Brooks, 222 Kan. 432, 565 P.2d 241 (1977) (three victims in hardware store robbery herded to rear of store and bound with tape, fourth victim bound and confined in the restroom).
In Kirtsey v. Florida, 511 So. 2d 744, Syl. (Fla. Dist. App. 1987), the Florida Court of Appeals, under facts similar to those occurring at Spears Restaurant, held:
“There was insufficient evidence of incidental acts, separate from simultaneously occurring attempted robbery, to establish kidnapping where confinement and movement of robbery victims was limited to interior of restaurant where robbery occurred; though acts of confinement and movement were not inherent in offense of robbeiy, and may have made attempted robbery easier to commit, acts were slight and merely incidental to robbery offense.”
The evidence here was not sufficient to support the crimes of kidnapping and aggravated kidnapping distinct from the crime of aggravated robbery in the Spears incident. The events at the Spears Restaurant do not rise to the level discussed in the cases above where this court found that kidnapping did occur. Buggs requires that the movement “have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. 203, Syl. ¶ 10.
The movement of Spears and Traffas neither made the crime substantially easier of commission, nor did it substantially lessen the risk of detection. The forced direction of Spears and Traffas through the restaurant was merely for the purpose of convenience, not to make the crime substantially easier of commission. It was more convenient to have Traffas and Spears, who knew where the key to the safe was located, obtain the key rather than the robber alone looking for the key and rather than attempting some other means of entry into the safe. Moreover, Spears and Traffas were not forced to remain in the back office, out of sight of any passersby, to lessen the risk of detection; rather, they returned to the front of the store. Indeed, while one robber walked with Spears and Traffas to the office, the one who remained in the front area of the store with the other victims was fully visible through the window of the restaurant. (The officer responding while the robbery was taking place observed the other robber through the window.)
This case is no different from “the forced direction of a store clerk to cross the store to open a cash register” described in Buggs. Under all the factual circumstances presented in the record, the.crimes of aggravated kidnapping and kidnapping distinct from the crime of aggravated robbeiy were not established. The defendant’s convictions for aggravated kidnapping and kidnapping arising out of the Spears Restaurant incident must be reversed.
III. MULTIPLICITOUS CHARGES
During the Spears Restaurant robbery, one of the robbers hit Randy Spears on the head with the butt of his gun, causing injury. That act of force and injury provided the basis for the charge of aggravated battery and also provided the requisite harm to make the kidnapping of Spears aggravated. The' defendant argued in the trial court that the charges for the aggravated kidnapping and aggravated battery of Randy Spears were multiplicitous because they were premised on the same injury. The trial court disagreed. This court need not reach the issue because we have held there was no aggravated kidnapping. There was an aggravated battery, and that conviction is affirmed.
IV. SENTENCE
The defendant argues that the district court abused its discretion in sentencing him to a controlling term of life plus 15 years to life because the sentence exceeds that imposed on his coconspirators in the Spears Restaurant robbery and the trial court gave no reasons for imposing a longer sentence. This issue is now moot by reason of our reversal of the aggravated kidnapping charge which is the basis of the life sentence.
The State has not raised and neither party has briefed the issue of whether this court has authority to vacate the remaining sentences, or at least the sentences for the offenses arising out of the Spears Restaurant incident, and remand for resentencing. The law in Kansas and other states concerning sentences has generally been stated as follows: “Where a valid sentence has been pronounced in a criminal case and has been put into execution, the trial court is without authority to set such sentence aside and impose a new sentence.” State v. Lyon, 207 Kan. 378, Syl. ¶ 3, 485 P.2d 332 (1971). The trial courts do have authority and jurisdiction to correct unlawful, void, and invalid sentences.
A line of cases in other jurisdictions considers what happens when one or more sentences imposed as part of a sentencing package are vacated because the defendant for whatever reason could not be convicted of or sentenced for one or more of the crimes the defendant was sentenced for committing. Basically, these cases hold that when a defendant is given a sentencing package and one or more of the sentences are permanently vacated, it does not violate the double jeopardy clause to vacate the sentences that were not at issue on appeal and to remand for re-sentencing. Of course, North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), would apply. The theory is that by allowing resentencing, the sentencing court can reevaluate the sentencing package in light of the remaining convictions and resentence the defendant to effectuate the court’s original sentencing intent. See for example United States v. Young, 953 F.2d 1288 (11th Cir. 1992); United States v. Dominguez, 951 F.2d 412 (1st Cir. 1991), cert. denied 504 U.S. 917 (1992); United States v. Vontsteen, 950 F.2d 1086 (5th Cir.), cert. denied 505 U.S. 1223 (1992); United States v. Welch, 928 F.2d 915 (10th Cir.), cert. denied 502 U.S. 850 (1991); Kelly v. Neubert, 898 F.2d 15 (3d Cir. 1990); United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.), cert. denied 493 U.S. 890 (1989); United States v. Diaz, 834 F.2d 287 (2d Cir. 1987), cert. denied 488 U.S. 818 (1988); United States v. Shue, 825 F.2d 1111 (7th Cir. 1987); United States v. Lail, 814 F.2d 1529 (11th Cir. 1987); United States v. Kuna, 781 F.2d 104 (7th Cir. 1986); United States v. Bello, 767 F.2d 1065 (4th Cir. 1985); United States v. Sales, 725 F.2d 458 (8th Cir. 1984); United States v. Moore, 710 F.2d 270 (6fh Cir.), cert. denied 464 U.S. 997 (1983); United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied 452 U.S. 918 (1981); State v. MacGillivray, 162 Ariz. 539, 785 P.2d 59 (1989); State v. Raucci, 21 Conn. App. 557, 575 A.2d 234 (1990); White v. State, 576 A.2d 1322 (Del. Super. 1990); Thorne v. United States, 471 A.2d 247 (D.C. 1983); Herring v. State, 411 So. 2d 966 (Fla. Dist. App. 1982); State v. Neville, 572 So. 2d 1161 (La. App. 1990); State v. Keefe, 573 A.2d 20 (Me. 1990); State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984); State v. Hersch, 467 N.W.2d 463 (N.D. 1991); Com. v. Sutton, 400 Pa. Super. 291, 583 A.2d 500 (1990); State v. Larson, 56 Wash. App. 323, 783 P.2d 1093 (1989); State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985).
Neither party has requested, raised, or briefed the issue of re-sentencing, and we decline to raise the issue on our own.
The trial court is affirmed in part (motion to withdraw waiver of right to a jury trial and for new counsel and defendant’s conviction for aggravated battery) and reversed in part (the convictions for aggravated kidnapping and kidnapping arising out of the Spears robbery), and the case is remanded to the trial court to vacate the sentences imposed for the two convictions reversed. | [
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On December 21, 1994, in the United States District Court for the Western District of Missouri, respondent Dallas D. Hainline, of Overland Park, Kansas, an attorney admitted to practice law in the State of Kansas, pleaded guilty to one count of conspiring to defraud an agency of the United States, in violation of 18 U.S.C. § 371 (1988), and to commit certain offenses against the United States, including wire fraud, in violation of 18 U.S.C. § 1343 (1988), and conflict of interest by a federal employee, in violation of 18 U.S.C. § 208 (1988).
In a letter dated April 12, 1995, to the Clerk of the Appellate Courts, respondent voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1994 Kan. Ct. R. Annot. 215).
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 Dallas D. Hainline be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Dallas D. Hainline from the rofl of attorneys licensed to practice law in the State of Kansas.
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). | [
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal by the defendant Brent L. Alford from convictions, following a jury trial, of first-degree murder, K.S.A. 1992 Supp. 21-3401; aggravated kidnapping, K.S.A. 21-3421; and unlawful possession of a firearm, K.S.A. 1992 Supp. 21-4204. He was sentenced to the “hard 40” on the murder charge, life on the aggravated kidnapping charge, and 3 to 10 years on the firearm charge. The sentences on the aggravated kidnapping and firearm charges were ordered to run concurrent with each other but consecutive to the hard 40 sentence.
The defendant argues that the jury’s determination that his killing of the victim was committed in an especially heinous, atrocious, and cruel manner is not supported by sufficient evidence and that the jury instruction on “heinous, atrocious and cruel manner” was unconstitutionally vague. He also contends that the district court erred in admitting a written statement prepared by the victim regarding a previous aggravated battery incident and that the district court erred in admitting photographs of injuries suffered by the victim in that previous incident. Finally, he contends that his conviction for aggravated kidnapping should be reversed because there was insufficient evidence to support one of the means by which the offense was alleged to have been committed. Finding no reversible error, we affirm.
The defendant and Kim Jackson first met in Oklahoma in 1983 and began dating in 1984. In 1988, the couple began living together and resided together until 1990 when the defendant moved to Wichita to obtain employment. Two months later, Jackson joined the defendant in Wichita, and the couple resumed living together.
In December 1992 and January 1993, Jackson related to a friend, Jeff Jones, that she was involved in a bad relationship that was “going down.” On January 8, 1993, Jackson went to Jones’ apartment crying. She told Jones that the defendant had beaten her. She also told Jones that the defendant had stated that if she left him, he would get his cousin to kill her. Jackson moved into Jones’ apartment.
On January 13, 1993, Jackson called Jones from Burger King, her place of employment, and stated that she was going to the defendant’s apartment to get the rest of her belongings. When she did not return after several hours, Jones became concerned and called the police, asking them to go to the defendant’s apartment and check on Jackson’s welfare.
At trial, Wichita police officer James Pinegar testified that he had gone to the apartment to check on Jackson. When he arrived, the defendant opened the door. Officer Pinegar stated that he entered the apartment and found Jackson huddled in the comer by the bed, crying. She was dressed only in a nightgown and had blood on her face. There was also blood on the sheets and pillowcase.
Jackson told Officer Pinegar that the defendant had taken a razor blade and held it up to her cheek. She stated that the defendant would ask her if she was “fucking” Jones and that when she answered that she was not, he cut her face with the razor. Jackson told Officer Pinegar that the defendant also cut her with a tile knife, punched her in the stomach, hit her on the head with a hammer, and, at one point, scratched her leg with the claw of the hammer. Officer Pinegar arrested the defendant for aggravated battery.
The State introduced several photographs taken at the defendant’s apartment to show the injuries suffered by Jackson. The defendant objected, claiming that the prejudicial effect of the pho tographs outweighed their probative value. The State also sought to introduce a written summary of the incident, which Jackson had prepared at the suggestion of Jones. Although the defendant had previously objected to the introduction of this statement before trial, he did not object at trial.
Melaura Guider, one of Jackson’s co-workers, testified that around Februaiy 1, Jackson told her that the defendant had called and asked if she was going to get their television out of the pawn shop. This call scared Jackson, and she called the jail to verify that the defendant was still incarcerated and had not bonded out on the aggravated battexy charge.
The defendant was able to bond out of jail on February 11,1993. Kirk Gillett, one of the defendant’s co-workers with whom he began staying, testified that the defendant talked about Jackson and had stated that if he had to go to jail, he ought to do something to earn it.
Guider testified that in late February, Jackson told her the defendant had called and said, “Bitch, I could have got you last night while you was getting the groceries out of your car.” Guider stated that Jackson was terrified that the defendant would kill her. According to Guider, the defendant later called Jackson and told her, “I could have killed you last night while Jeff was at work.” On February 28, the defendant left a note on Jackson’s mailbox saying that he would see her at work after 5 p.m. Jackson was too scared to go to work that day. Jones also testified that Jackson told him the defendant had called her at Burger King and stated that there was something he had to do before he went back to jail. This contact led to the filing of a motion to revoke the defendant’s bond.
Mark Dinsmore, another Burger King employee, testified that on the afternoon of March 5, a man called and asked for Jackson. When Jackson picked up the phone, the man hung up. Guider testified that later that afternoon, Jackson was waiting on a customer in the drive-thru when the defendant walked into the kitchen through the door leading from the restroom. .The defendant was carrying a gun in his hand.
Guider stated that the defendant forced her away from the door and yelled for everyone to get into the office. Jackson then ran out the door into the lobby in an attempt to escape. The defendant ran after Jackson and shot her twice. Jackson was bent over; the defendant pushed her through the door back into the kitchen. As they were going through the kitchen, Jackson suddenly grabbed a basket of fries from , the fryer and threw them at the defendant. The defendant slid on the hot grease and fell against the bun warmer. He then shot Jackson again. ■
Jackson was still on her feet. The defendant grabbed her by the neck and began dragging her towards the back. According to Guider, the defendant was attempting to shoot Jackson again, but the gun was jammed. The defendant took Jackson around a comer; Guider kept hearing clicks from the jammed gun and then heard two shots. Guider then heard the back door being opened. The defendant was later arrested mnning from the scene. The gun used in the shooting, a .25 caliber semiautomatic, was recovered from a nearby trash dumpster.
Jackson died later that night. An autopsy revealed that she had suffered three gunshot wounds to the head, a wound to the lower right side, two wounds in the left arm, and a wound to the upper left back. Dr. Eckert, the doctor performing the autopsy, testified that Jackson died as the result of one of the gunshots to the head. He stated that the fatal wound would likely cause a person to become unconscious.
The defendant's version was slightly different. He stated that he and Jackson were happy until mid-1992 when they began to do crack and he began to drink heavily. The defendant stated that Jackson moved out for a few days and then moved back in but that afterward she began “messing around” with a man named Randy. For awhile they tried to repair their relationship. However, on January 13, he came home to find Jackson packing up their joint property. An argument ensued during which Jackson grabbed a razor and threatened him. The defendant stated that he threw a hammer at her, hitting her in the leg, and then hit her with a broom, knocking the razor from her hand. He then picked up the razor and slashed Jackson's cheek twice “on reflex.”
The defendant admitted calling Jackson while in jail but stated that he was only trying to get his television set and some of his guns back. He stated that when he returned from jail, all of his personal property was gone. He testified that he received a call from the Health Department stating that he had been exposed to a disease and was terrified that Jackson had given him AIDS. Thomas J. Ebben of the State Health Department verified that he had contacted the defendant but stated he told the defendant he had been exposed to syphilis and that he should come in and get tested. Ebben stated that the defendant did not show up for his test.
On the day of the shooting the defendant told his boss that he could not work because he had to appear at a bond hearing. He cashed his paycheck at Dillon s and took a bus from the Tower Motel, where he had been staying, to the Auto Motel, which was near the Burger King where Jackson worked. He did not go to the bond hearing that day because he expected to be put back in jail and wanted to recover his personal property before he went back to jail.
After going to the motel, the defendant went to a pawn shop to buy a gun because he planned to go to Jones’ apartment in search of his property and a friend had told him that Jones had threatened to kill him if he came near Jones’ apartment. The defendant testified that he went to Jones’ apartment, but no one was home. He then visited a friend’s house nearby and then went back to his motel room. He later returned to Jones’ apartment but again no one was home. According to the defendant, he consumed a couple of shots of Seagram’s 7 and five or six beers while in his motel room.
The defendant testified that upon his return to the motel, he saw Jackson working at Burger King. He got off the bus because he wanted to scare Jackson so that she would respect him. According to the defendant, he went into the kitchen and told the person at the door to back off. He then pulled out his gun and asked Jackson where his property was. Jackson slapped him and he chased her. Jackson stated that she did not believe the gun was real, so he put the ammunition clip in the gun. He stated that Jackson then tried to kick him in the groin, and the gun accidentally discharged. The defendant testified that Jackson did not appear to be hurt and told him that she would get his property. As she lead him through the kitchen, she threw some fries at him, and he fired a shot. He then slipped in the grease and began firing randomly. The defendant testified that he did not intend to kill Jackson and he thought he was shooting at her legs.
The defendant stated that after shooting, he ran out the door and began running down the street. After hiding the gun in the dumpster, he was starting back to Burger King to check on Jackson when he was apprehended.
The jury found the defendant guilty of first-degree murder, aggravated kidnapping, and unlawful possession of a firearm. The jury then convened to determine whether the defendant should receive the hard 40 for his first-degree murder conviction. The jury found tlrat the crime was committed in an especially heinous, atrocious, and cruel manner and recommended imposition of the hard 40.
JURISDICTION
Before any discussion of the errors raised by the defendant, we must address a threshold question concerning this court’s jurisdiction. The defendant was sentenced on August 20, 1993, but his notice of appeal was not filed until February 7, 1994. There is no question that the notice of appeal was filed out of time. Ordinarily, this would be a jurisdictional defect and the appeal would have to be dismissed. See State v. McDaniel, 249 Kan. 341, 344, 819 P.2d 1165 (1991). However, the defendant argues that K.S.A. 1992 Supp. 21-4627(1) provides for automatic review and that a timely filing is not necessary.
K.S.A. 1992 Supp. 21-4627(1) provides that a conviction resulting in imposition of the hard 40 “shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure.” The defendant claims that this provides for automatic review and, therefore, this court has jurisdiction notwithstanding his failure to file a timely notice of appeal.
This is a question of first impression in Kansas. K.S.A. 1992 Supp. 21-4627(1) does provide that the conviction shall be subject to automatic review. It also states that the appeal to the Supreme Court must be made in accordance with the applicable statutes governing appellate procedure. However, as noted by the defen dant, if the legislature had meant to make an appeal of the hard 40 subject to the same time limitations as other criminal appeals, there would have been no need to use the language “shall be subject to automatic review.”
The language in K.S.A. 1992 Supp. 21-4627(1) cannot be read as merely specifying in which court the appeal is to be heard. Under K.S.A. 1992 Supp. 22-3601(b)(l), any class A felony may be appealed directly to the Supreme Court subject to the normal time limitations. If those limitations were meant to apply in hard 40 cases, the “automatic review” language would be reduced to mere surplusage. Therefore, the legislature must have intended that automatic review mean something more than review subject to the normal restrictions of appellate practice. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Moreover, the phrase “automatic review” cannot be interpreted as simply mandating that the Supreme Court take every case in which the hard 40 is imposed since this court is bound to take every class A felony appeal under K.S.A. 1992 Supp. 22-3601(b)(l). Thus, the only possible interpretation of the phrase “automatic review” is that review must be given even though the criminal defendant fails to properly follow the normal procedural rules for perfecting the appeal. Instead, the appeal is commenced automatically upon the imposition of the hard 40 sentence. Based on the language of K.S.A. 1992 Supp. 21-4627(1), this court has jurisdiction to hear the defendant’s appeal.
SUFFICIENCY OF EVIDENCE CONCERNING HEINOUS, ATROCIOUS, AND CRUEL MANNER
The defendant contends that the jury’s determination that his killing of Jackson was committed in an especially heinous, atrocious, and cruel manner is not supported by the evidence. He argues that the murder was simply a routine shooting and did not contain the type of conduct for which the hard 40 sentence is appropriate.
When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sen tence proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. State v. Reed, 256 Kan. 547, 564, 886 P.2d 854 (1994).
For purposes of the hard 40 sentence, the term heinous means “extremely wicked or shockingly evil”; atrocious means “outrageously wicked and vile”; and cruel means “pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.” See State v. Bailey, 251 Kan. 156, 174, 834 P.2d 342 (1992).
Generally, deaths caused by shooting do not result in a finding that the manner in which they were conducted was heinous, atrocious, or cruel. See Malone, The Kansas “Hard-Forty” Law, 32 Washburn L.J. 147, 156 (1993), stating that, as a general rule, deaths caused by stabbing, bludgeoning, strangling, burning, or drowning often result in a finding of this circumstance, while deaths from shooting do not. However, in this particular case, there was sufficient evidence to conclude that Jackson was killed in a heinous, atrocious, or cruel manner.
The record reveals that the defendant entered the kitchen waving his gun. He chased Jackson into the lobby of the restaurant and shot her twice. He then forced Jackson back into the kitchen and when she attempted to flee, shot her again. Finally, as she was barely moving yet still trying to escape, he dragged her around the comer of the kitchen, all the while attempting to fire the gun which had jammed. After a long series of clicks from the jammed gun, he administered the final two bullets. Based on these facts, the jury’s determination that the murder was committed in an especially heinous, atrocious, or cruel manner is supported by substantial competent evidence.
JURY INSTRUCTIONS REGARDING HEINOUS, ATROCIOUS, AND CRUEL
The defendant contends that the jury instruction defining the terms heinous, atrocious, and cruel was unconstitutionally vague. The instruction given to the juiy stated, in pertinent part:
“The term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked or vile; ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.”
This court has found that the terms “heinous,” “atrocious,” and “cruel” are not so vague as to be unconstitutional. State v. Bailey, 251 Kan. 156, 174-175, 834 P.2d 342 (1992). However, in State v. Willis, 254 Kan. 119, 130, 864 P.2d 1198 (1993), we supplemented the instruction approved in Bailey and cases that followed by adding the phrase, “A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to [his] or [her] ultimate fate.” 254 Kan. at 130. Willis stated that the instruction should be used in “all cases on appeal as of the date of this opinion in which the vagueness of a 21-4625(6) sentencing instruction has been asserted as an issue on appeal.” 254 Kan. at 130.
The defendant argues that because his case was on appeal at the time Willis was handed down, the ruling should necessarily apply to him. However, in State v. Duke, 256 Kan. 703, 887 P.2d 110 (1994), we stated:
“Our statement in Willis should be modified as follows: We adopt the instruction to be used in: (1) Willis’ retrial, (2) hard 40 sentencing cases after the date of this opinion, and (3) all cases on appeal as of the date of this opinion in which vagueness of a 21-4625(6) sentencing instruction has been asserted in the trial court and as an issue on appeal.’ 254 Kan. at 130.” 256 Kan. at 717.
The modification of Willis in Duke makes it clear that the vagueness of the sentencing instruction must be asserted in the trial court as well as on appeal. While the defendant acknowledges that no such assertion was made by him at trial and while he also acknowledges our decision in Duke, he nevertheless argues that Duke’s attempt to limit the application of Willis is contrary to the rules established by both this court and the United States Supreme Court regarding the application of overruling decisions. Relying on our decision in State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991), and cases cited therein, he argues that the proper procedure and general rule in criminal cases is that an overruling decision should be applied retroactively to all similar cases pending at the time the decision was rendered.
The problem with the defendant’s argument is that Willis is not an overruling decision. Contrary to the defendant’s contention, Willis did not overrule Bailey. Instead, we stated in Willis that we were merely supplementing the instruction on the definition of heinous, atrocious, and cruel. Thus, as we clearly stated in Duke, the failure to give the supplemental instruction set forth in Willis regarding the terms “especially heinous, atrocious, or cruel manner” will not be considered in a vagueness argument except in those cases where the same argument was presented to the trial court and the appellate court. 256 Kan. at 717.
ADMISSION OF THE WRITTEN STATEMENT PREPARED BY THE VICTIM REGARDING AN EARLIER AGGRAVATED BATTERY
The defendant contends that the court erred in admitting a written statement prepared by Jackson, at the suggestion of Jones, regarding the earlier aggravated battery. He argues that the statement was inadmissible hearsay.
The defendant did not object to the admission of the written statement. He did object prior to trial but did not renew the motion at the time the statement was offered into evidence. When a pretrial motion to suppress is denied, the defendant must make a timely objection at trial to the introduction of the evidence, specifying tire ground for the objection in order to preserve the issue for appeal. State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993).
In any event, the statement was admissible. The State sought to introduce the evidence of the prior aggravated battery to show discord rather than to prove the truth of the matter asserted. Evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is competent as bearing on the defendant’s motive and intent. State v. Taylor, 234 Kan. 401, 408, 673 P.2d 1140 (1983). This rule is equally applicable to a live-in relationship. State v. Young, 253 Kan. 28, 37, 852 P.2d 510 (1993). In the defendant’s case, the evidence was admissible to show that he was distraught over the breakup and this had a bearing on his intent to kill Jackson.
ADMISSION OF PHOTOGRAPHS OF INJURIES SUSTAINED BY THE VICTIM IN THE EARLIER AGGRAVATED BATTERY
The defendant contends that the district court erred in admitting photographs taken by police of the injuries suffered by Jackson in the earlier aggravated battery. He argues that the photographs were more prejudicial than probative.
The admission of photographs in a homicide case is a matter within the trial court’s discretion and will not be disturbed absent a showing of abuse of that discretion. State v. Stone, 253 Kan. 105, 111, 853 P.2d 662 (1993). Judicial discretion is abused when no reasonable person would take the view of the trial court. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
The defendant does not contend that the photographs were inadmissible but rather that their prejudicial nature outweighed what little relevance they had. However, the photographs were relevant in that they served to corroborate the testimony of witnesses as to earlier injuries suffered by Jackson at the hands of the defendant and the violent discord present in the relationship as well as bearing on the defendant’s state of mind and intent. Furthermore, the photographs, although they show the cuts received by Jackson, are not gruesome, nor are they unduly prejudicial.
Under these circumstances, the district court’s determination that the photographs were more probative than prejudicial is not a decision with which no reasonable person would agree. The district court did not abuse its discretion in admitting the photographs.
SUFFICIENCY OF EVIDENCE REGARDING ALTERNATIVE MEANS FOR COMMITTING AGGRAVATED KIDNAPPING
The defendant’s final contention is that the evidence was insufficient to support one of the alternative means by which the offense of aggravated kidnapping was alleged to have been committed. He argues that based upon our decision in State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994), we must reverse his conviction for aggravated kidnapping.
The defendant was charged with aggravated kidnapping of Jackson in the alternative, based on alternative theories that he took or confined Jackson with the intent to either (1) facilitate flight or the commission of a crime or (2) inflict bodily injury or terrorize her. The jury relied on the first alternative, finding that the aggravated kidnapping occurred to facilitate flight or the commission of a crime. The defendant argues that while the jury could have found that the movement of Jackson to the back hallway may have been done with the intent to facilitate flight in that it placed the defendant near the back door of the Burger King, there was insufficient evidence to support the other alternative means, that the movement was done to facilitate the commission of a crime.
In State v. Timley, we addressed a claim that a jury instruction defining the offense of rape was erroneous in that it did not require the jury to unanimously decide whether the sexual acts were committed by force or by fear. We said:
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” 255 Kan. 286, Syl. ¶ 1.
Thus, the defendant’s reliance on Timley for the rule that substantial evidence must support each alternative means of committing the offense of aggravated kidnapping is correct. However, the defendant’s contention that there is insufficient evidence to support a conclusion that the defendant committed the aggravated kidnapping to facilitate his commission of the crime of murder in the first degree is not supported in the record.
The record reveals that the defendant dragged Jackson back around the comer away from anyone who could intervene before administering the final shots. Jackson was still alive and moving at that time and, therefore, the murder was not complete. The testimony of Dr. Eckert established that if the fatal shot had been fired previously, Jackson would have been unconscious almost immediately. The fact that she was still moving at the time leads to the conclusion that the fatal shot came after the defendant had taken her around the comer. It would have been to the defendant’s advantage to take Jackson to the back, away from any possible intervenors, while he attempted to clear his jammed gun. Under these circumstances, there is sufficient evidence for a reasonable jury to conclude that he committed the aggravated kidnapping to facilitate his commission of the crime of murder in the first degree.
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The opinion of the court was delivered by
Allegrucci, J.:
Plaintiffs Lynn McCarthy, Victor and Helen Regnier, and Ranch Mart, Inc., filed a petition seeking declaratory and injunctive relief invalidating and restraining the use of Lea-wood Ordinance 1027C, which conditions building permits and plat approval for properties within the K-150 Corridor on payment of impact fees. In addition to Leawood, McCarthy named as defendants other property owners who would be affected by the relief sought. With the exception of Fleming Companies, Inc., which alleges exemption from impact fees, the property owners answered by praying, that the plaintiffs be granted the relief sought. Several of the defendant property owners also stated cross-claims against Leawood for the same relief. Leawood intends to finance a portion of the improvement of K-150 with the impact fees. On cross-motions, the district court denied injunctive relief and entered summary judgment in favor of Leawood and against the property owners. Appellants include defendant property owners as well as the plaintiffs. The appeal was transferred to this court pursuant to K.S.A. 20-3017.
In January 1988, Leawood adopted Ordinance No. 1027C, known as the K-150 Corridor Impact Fee Ordinance. Ordinance 1027C was codified as Chapter XIII, Article 5, ¶¶ 13-501 through 13-515 of the Code of the City of Leawood.
McCarthy, the Regniers, Ranch Mart, Inc., and the defendant property owners are. the owners of tracts of land in Leawood which lie, at least partially, within the K-150 Corridor, also known as 135th Street. The impact fee set forth in Ordinance 1027C applies to the properties owned by plaintiffs and defendant property owners.
The impact fee applies to properties within the K-150 Corridor, as depicted on the Leawood Master Development Plan. Ordinance 1027C refers to the Leawood Master Development Plan (Plan) as follows: “13-503 Definitions . . . (k) Highway K-150 Corridor: all of that land within the north and south Highway K-150 reverse frontage roads, as set forth in the Leawood Master Development Plan.” The courses of the proposed north and south reverse frontage roads are not set out by legal description in the Plan, but are shown in a map that depicts the planned development usages of the K-150 Corridor.
In October 1988, Leawood adopted Ordinance No. 1073C, which designated several streets, including 135th Street (K-150), as main trafficways pursuant to K.S.A. 12-685. In October 1989 Leawood adopted Ordinance No. 1130C, which superseded Ordinance No. 1073C and designated several streets, including 135th Street (K-150), as main trafficways pursuant to K.S.A. 12-685.
Current impact fee rates and amounts for the K-150 Corridor are set forth in Leawood Resolution No. 1141. Impact fee calculations are based on the trips to be generated from new development as determined using the Institute of Traffic Engineers Trip Generation Manual (4th ed. 1987) and on the type and square footage of the development. The district court gave the following example: “[T]he ITE Trip Generation Manual calculates that general office development will produce 15 trips per day per 1000 square feet while retail commercial development will generate 50 trips per day per 1000 square feet.” The rate is $26.45 per trip. A landowner who built one new residence on his or her property would pay an impact fee of $264.50 (projected 10 trips x $26.45 per trip).
At the time the briefs were prepared, the landowners had not applied for either a building permit or plat approval nor had they paid or been asked to pay a K-150 Corridor impact fee. Leawood had not calculated the amount of any impact fees that any of the landowners would be required to pay.
Leawood projects the total cost of the K-150 improvements to be $9,761,250. If all property within the K-150 Corridor were developed to its highest potential, the impact fees imposed would total approximately $2,925,100. Thus, approximately 30% of the total cost could be financed by impact fees. Leawood projects that 40% of the trips on the improved K-150 will be generated by new development in the K-150 Corridor. The City has no plan to create an improvement district and levy special assessments under K.S.A. 12-6a01 et seq. to finance any part of this project.
We first consider whether a city’s designation of a street as a main trafficway under K.S.A. 12-685 precludes its financing improvements to the street by impact fees. In the district court, the landowners argued that the outcome of this case should be based on the recent decisions of another division of the Johnson County District Court in Davis v. City of Leawood, 257 Kan. 512, 893 P.2d 233 (1995), Bauer v. City of Olathe, 257 Kan. 540, 894 P.2d 823 (1995), and Landau v. City of Overland Park, (No. 71,979, unpublished opinion, this day decided). The district court judge declined to base the decision in this case on the others due to differences in the issues and the theories presented. In particular, he noted that the central issue in the present case “is whether the City had authority under its home rule powers to enact the impact fee ordinance.”
The district court identified the issues in this case as follows:
1. Is the ordinance authorized under home rule?
2. Does the ordinance violate Article 11, § 5 of the Kansas Constitution? and
3. Is the ordinance invalid based upon an alleged deficiency in its definition of the impact fee area?
Following this rule from Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 4, 654 P.2d 445 (1982), “[a] city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature has clearly preempted the field so as to preclude municipal action,” the district court’s first inquiry was whether an actual conflict exists between Leawood Ordinance 1027C and the Main Trafficway Act, K.S.A. 12-685 through 12-690, and whether Leawood is preempted from imposing impact fees. It is in this inquiry that the present case overlaps with Davis, Bauer, and Landau.
The home rale amendment, Art. 12, § 5 of the Kansas Constitution, provides in pertinent part:
“(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of die legislature applicable uniformly to all cities of die same class: . . . Cities shall exercise such determination by ordinance passed by die governing body widi referendums only in such cases as prescribed by die legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness.”
In Claflin v. Walsh, 212 Kan. 1, 6-8, 509 P.2d 1130 (1973), the following principles relative to home rale were stated:
“No longer are cities dependent upon the state legislature for their authority to determine their local affairs and government. Since home rule, cities have power granted directly from the people through the constitution without statutory authorization. [Citations omitted.]
“The home rule power of cities is not absolute. It is subject to tlie power of the legislature to act in certain areas — exclusively in some, optionally in others. These limitations on city power are expressly set forth in the home rule amendment. . . .
“Section 5(d) of Article 12 requires a liberal construction of the powers and authority granted cities for the purpose of giving to cities the largest measure of self-government. This provision simply means that the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it. Where tlie legislature has acted in some area a city’s power to act in the same area should be upheld unless the legislature has clearly preempted the field so as to preclude city action. Unless there is actual conflict between a municipal ordinance and a statute, the city ordinance should be permitted to stand. [Citation omitted.]
“In view of the liberal construction provision of Section 5(d), in determining whether a legislative enactment is applicable uniformly to all cities such a legislative intent should be clearly evident before the courts should deny a city the right to exercise home rule power in that area. Even before the passage of the home rule amendment we held that legislative intent to reserve exclusive jurisdiction to tlie state to regulate must be manifested clearly by statute before it can be held that the state has withdrawn from the cities power to regulate in the premises. [Citation omitted.]”
The landowners argue that once Leawood designated K-150 as a main trafficway, the City is required to pay all costs attributable to the improvements either from city-at-large funds or general improvement bonds. Thus, the City is precluded from thereafter utilizing other “statutory financing mechanisms.” The landowners contend:
“Ordinance 1027C, Leawood, Kansas Highway K-150 Corridor Impact Fee Ordinance, is void under home rule authority as repugnant to the Kansas Main Trafficway Act, K.S.A. 12-685 through 12-690. . . . And the legislature made no further allowance for other financing devices under either the anticipated home rule amendment or under the guise of general police powers. Ordinance 1027C is in direct conflict with the Kansas Main Trafficway Act and therefore must fail as an exercise of home rule power.”
Principally on the ground that it would render parts of the Main Trafficway Act useless, the district court rejected the landowners’ contention that 12-690 prohibits the use of any but city-at-large funds and general improvements bonds, as specified in 12-689, for financing improvements to a street once it has been designated as a main trafficway. K.S.A. 12-689 provides:
“All costs of improvements or reimprovements authorized under the provisions of this act, including acquisition of right-of-way, engineering costs, and all other costs properly attributable to such projects shall be paid by the city at large from the general improvement fund, general revenue fund, internal improvement fund, or any other fund or funds available for such purposes, or by the issuance of general improvements bonds.”
And K.S.A. 12-690 provides: “This act shall be supplemental to all other acts relating to the improvement of streets, and shall not prevent the use of other statutes for the improving of any such street, boulevard or avenue.”
The district court reasoned that 12-690 is not needed in cases where a street has not been designated as a main trafficway, and, therefore, if it is to have any meaning, it must have meaning in cases where a designation has been made. The district court illustrated its point with this rephrasing of the landowners’ position:
“(1) If the City does designate the street as a main trafficway, all costs must be paid by city-at-large funds under the authority of the Act; and (2) if the City does not designate the street as a main trafficway, other statutory provisions must be used to determine how the costs are paid. K.S.A. 12-690 would be rendered meaningless under both scenarios. Under the first scenario, it would be meaningless because no supplemental’ statutes could be used, anyway, given the designation. Under the second scenario, it would be meaningless because no portion of the Act even comes into play unless a designation had first been made.”
The district court concluded that the entire Main Trafficway Act could be read in harmony and all parts of it given meaning if 12-690 were construed to permit and 12-689 were construed not to exclude the use of city-at-large financing in combination with other forms of financing. Also, based upon consideration of the Main Trafficway Act as a whole, the district court concluded that the word “shall” in 12-689 does not limit a city’s power to use alternative funding sources pursuant to 12-690. Thus, the district court interpreted 12-689 and 12-690 as authorizing concurrent financing of costs of improvements with city-at-large funds and fees and assessments. Given this construction of the provisions of the Main Trafficway Act, the district court concluded, no actual conflict exists between the Main Trafficway Act and Lea-wood’s impact fee ordinance.
On appeal, the landowners argue that 12-689 and 12-690 are unambiguous. K.S.A. 12-690, their argument continues, permits financing mechanisms not specified in the Main Trafficway Act to be used for improving streets which have not been designated as main trafficways. K-150 has been designated by Leawood ordinance as a main trafficway. The only two financing mechanisms which may be used to finance improvements to streets which have been designated as main trafficways, according to the landowners, are those specified in 12-689 — city-at-large funds and general improvements bonds. Impact fees are neither and, for this reason, cannot be used to finance a main trafficway. Hence, according to the landowners, the Leawood ordinance which conditions building permits and plat approval for new development within the K-150 Corridor on payment of impact fees conflicts with the Main Trafficway Act.
Leawood, for the most part, reiterates the reasoning of the district court. It adds that “the City currently plans to complete K-150 improvements with city-at-large funding.” This makes it ap pear that Leawood is suggesting that impact fees are city-at-large funds within the meaning of 12-689. Here is that statute with the emphasis advocated by the City:
“All costs of improvements or reimprovements authorized under the provisions of this act, including acquisition of right-of-way, engineering costs, and all other costs properly attributable to such projects shall be paid by the city at large from the general improvement fund, general revenue fund, internal improvement fund, or any other fund or funds available for such purposes, or by die issuance of general improvements bonds.”
In its proposed uncontroverted facts for its summary judgment motion, on the other hand, Leawood stated (and the district court found) that impact fees would total approximately $2,925,100 and that at least $717,900 in Leawood city-at-large funds would be used to finance the improvements. This would indicate that Lea-wood considers the impact fees as reducing the amount which it will have to expend in improving the main trafficway rather than as city-at-large funds. If, as the court ruled, the means of financing specified in 12-689 are not exclusive, how the impact fees are categorized will have no significance. If, as the landowners assert, 12-689 precludes use of any means not specified in that provision, the validity of Leawood’s action could depend on how impact fees are categorized.
Under the landowners’ construction of 12-689, an actual conflict exists between the impact fee ordinance and the Main Trafficway Act. By its terms, the Main Trafficway Act is an enactment uniformly applicable to all cities. K.S.A. 12-685 authorizes “[t]he governing body of any city” to designate certain streets as main trafficways. Where a municipal ordinance conflicts with a statute of uniform applicability, the ordinance fails as an invalid exercise of home rule power. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 424-25, 845 P.2d 57 (1993). According to the landowners, Ordinance 1027C, therefore, is invalid.
The landowners offered the affidavit of Arden Ensley in support of their argument that the Main Trafficway Act is the exclusive means of financing improvements of a street designated as a main trafficway. The trial court in Davis, Bauer, and Landau accepted and relied on the affidavit of Ensley. Here, the district court rejected the affidavit as a source of information about legislative intent and gave no consideration to the affidavit in interpreting K.S.A. 12-690. The reasons given by the district court for not crediting the affidavit were that Ensley was a lobbyist rather than a legislator, that the post-enactment statements even of legislators generally are not considered, and that the 35 years which have passed since enactment of the Main Trafficway Act represent too great an impediment to precise recollection of fine detail. We agree.
Ensley worked as a staff attorney for the League of Kansas Municipalities, which “helped to draft” and lobbied for passage of the Main Trafficway Act. Ensley stated that he “was personally involved in the drafting.” Here are the pertinent paragraphs of his affidavit:
“5. Prior to 1959, cities could not authorize issuance of bonds to finance the improvement of roadways with at-large funds without designating them ‘main trafficways’, ‘main arterial trafficways’, ‘major traffic thoroughfares’, ‘main thoroughfares’ or something similar thereto and qualifying them under one of several pieces of special legislation enacted into law for cities of various sizes.
“6. The main trafficway act of 1959 applied to cities of all sizes and provided a uniform means for financing improvements to designated main trafficways.
“7. K.S.A. 12-690 states that the main trafficway act is supplemental to all other acts relating to the improvement of streets. This section was inserted in the act to assure that the special legislative acts already on the books and not specifically repealed regarding main trafficway improvements would not be invalidated. The act was designed to provide an independent alternative to other financing methods and not as a part of a finance package to be used in combination with other acts; nor was it intended to authorize any other kind of financing of streets designated as main trafficways under this act.”
As the district court noted, even the post-enactment statements of legislators are generally not considered by Kansas courts. The district court relied on Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 257, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978), in which a provision of the Kansas Automobile Injury Reparations Act was at issue. That Act became effective July 1, 1973. In its 1978 opinion, the Court of Appeals wrote:
“We are aware that defendant has presented a recently prepared affidavit of the chairman of the House subcommittee wherein it is said the legislative intent was that survivors’ benefits were to replace only the monthly earnings of the deceased actually lost by the survivors. We are unable to square the affiant’s statements with the facts of legislative action. We believe the latter speaks more loudly and we are unaware of precedent for judicial ascertainment of legislative intent through statements of legislators made years after the event.” 2 Kan. App. 2d at 257.
In the present case, the gap between enactment and affidavit is 35 years rather than the 5 years which the Court of Appeals referred to as “years after the event.” And, of course, the affiant is a lobbyist rather than a legislator. It is the legislature’s intention which is at issue, and Ensley’s affidavit contains nothing to indicate what the legislature intended. The district court was correct in rejecting Ensley’s affidavit as evidence of the Intent of the legislature in 1959.
This court has frequently stated the rule of statutory construction:
“ ‘ “Interpretation of a statute is a question of law, and it is a function of'this court to interpret a statute to give it the effect intended by the legislature. The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs. In determining legislative intent, we are not limited to consideration of the language used in the statute, but may look at the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Cyr v. Cyr, 249 Kan. 94, Syl. ¶ 2, 815 P.2d 97 (1991).’” First Page, Inc. v. Cunningham, 252 Kan. 593, 601, 847 P.2d 1238 (1993).
“[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. ... 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 tire 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).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part of 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.)” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
We agree with the landowners that 12-689 and 12-690 are unambiguous. However, as pointed out by the district court:
“Plaintiffs rest their case upon their construction of one section of tire Act, K.S.A. 12-689, and they ignore entirely one key phrase in that section. Plaintiffs highlight the following language of tire statute: ‘All costs . . . shall be paid by die city at large . . . .’ If that were die entirety of the relevant provisions, plaintiffs would be correct. But plaintiffs ignore tiris language: ‘All costs of improvements . . . authorized under the provisions of this act . . . shall be paid by the city at large . . . .’ (emphasis added.) That language — when construed in conjunction witir K.S.A. 12-690 — leads to a much different conclusion.”
The landowners not only ignore the above language but also the clear import of K.S.A. 12-690. K.S.A. 12-690 provides that tiris Act “shall be supplemental to all other acts” relating to the improvement of streets and “shall not prevent the use of other statutes for the improving of any such street.” As noted by the district court:
“The Main Trafficway Act comes into play only when a city has designated a street as a niain trafficway. When no such designation has been made, the Act has no effect whatsoever. Thus, K.S.A. 12-690 is not needed at all in cases in which a street is not designated as a main trafficway. Accordingly, to give effect to the legislative intent (and to find meaning in all parts of the statute), K.S.A. 12-690 must have meaning in cases in winch a designation has been made under tire Act.
“Plaintiffs simply say that once a designation has been made, all costs must be paid by city-at-large funds. If die plaintiffs’ argument were correct, K.S.A. 12-690 would have no meaning in such cases. This interpretation would read K.S.A. 12-690 entirely out of the Act.”
If K.S.A. 12-690 has any meaning, it must be that the statute permits a city to use other Acts for the purpose of financing improvements to all streets, including those designated as a main trafficway. If this was not the intent, the legislature could have easily and clearly stated that it was limited to the exclusive financing of main trafficways.
The landowners argue that the language “shall be paid by the city at large” in 12-689 is mandatory and not directory. Thus, once a city designated a street as a main trafficway, the city was required to pay for the improvements from at-large funds.
In this regard, the district court viewed the language of 12-689 not as either mandatory or directory but more as one piece which must be fitted into a whole. There, the district court concluded that the word “shall” in 12-689, if read to limit a city’s power to use alternative financing sources, stripped 12-690 of meaning. In order to harmonize and give meaning to all the various provisions of the Main Trafficway Act, the district court construed 12-690 to permit and 12-689 not to exclude the use of city-at-large financing in conjunction with other forms of financing. It seems quite reasonable to approach the statutory construction in this way where the issue has been posed as one of preclusion or exclusivity rather than mandating or directing. The question is whether cities are precluded from using means of financing not specified in 12-689 or, phrased another way, whether the means specified in 12-689 are exclusive.
Absent an actual conflict between the impact fee ordinance and the Main Trafficway Act, the ordinance will be upheld. In City of Junction City v. Lee, 216 Kan. 495, 501, 532 P.2d 1292 (1975), we said:
“A test frequently used to determine whether conflict in terms exists is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict [citation omitted].”
In that regard, the district court correctly noted:
“The ordinance does nothing that is prohibited by statute; the statute is expressly supplemental to other statutory provisions. The statute certainly does not prohibit impact fees as a method of obtaining reimbursement for roadway improvements. Further, it should be noted that the home rule amendment separately provides authority for cities to levy ‘fees . . . and other exactions’ unless specifically limited or prohibited by statute. Given the liberal construction to be afforded to home rule enactments, the Main Trafficway Act certainly should not be considered to prohibit impact fees such as those enacted here by Leawood."
K.S.A. 12-689 cannot be construed by itself but must be considered together with K.S.A. 12-690 and other provisions of the Main Trafficway Act. In so doing, we must consider the whole Act and not read one statute in isolation from the other.
When the two statutes are read together, the district court’s interpretation is consistent, harmonious, and sensible. The designation of a street as a main trafficway does not prevent special benefits accruing to the landowners within a benefit district. In that event, there is no logical reason to preclude financing the improvements under the general improvement and assessment statutes or the impact fee ordinance. If the legislature had intended the Main Trafficway Act to be an exclusive means of financing a street so designated, then it could easily have said so. We conclude that the Main Trafficway Act does not preclude the use of impact fees together with city-at-large funds to finance the costs of improvements. Thus, we find no conflict exists between the Main Trafficway Act and Leawood’s impact fee ordinance.
The landowners also contend that the legislature preempted the enactment of the impact fee ordinance by passage of the Main Trafficway Act. The district court held that it did not. The district court quoted from Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 193, 871 P.2d 1256 (1994); Dillon Stores v. Lovelady, 253 Kan. 274, 279, 855 P.2d 487 (1993); and Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. at 425, to the effect that the legislature must clearly preempt the field so as to preempt city action. Thus, the district court concluded, the doctrine of implied preemption is inapplicable. Because the legislature did not expressly preempt the field with the Main Trafficway Act and, in fact, expressly made it supplemental to other provisions of law, the district court held that the Main Trafficway Act did not preempt enactment of the impact fee ordinance. However, the landowners’ only contention with regard to preemption is that K.S.A. 12-689 requires that the street improvements be financed exclusively by city-at-large funds. We rejected that argument, and thus the district court correctly held that the impact fees were not preempted by the Main Trafficway Act.
The landowners also contend that, in addition to being tested for conflict with a statute of uniform applicability or operation in a field clearly preempted by the legislature, a municipal ordinance must be scrutinized for validity against various other measures of home rule power. Included are reasonableness, federal constitutional guarantee against uncompensated taking, state constitutional guarantee against certain municipal taxes, enabling legislation, police power, identifiability of affected geographic area, and authority reserved to a state agency.
Reasonableness. The landowners argue that the impact fee ordinance is “constitutionally offensive under home rule” because it is unreasonable. Unreasonable features and effects alleged by the landowners include the percentage of Leawood’s share of improvement costs to be paid by impact fees, the ordinance’s providing for increases in the impact fee rate, and the rate’s being defined as “the amount of the applicable impact fee per trip generated by new development in the Highway K-150 corridor.”
The landowners rely on Restaurants of Wichita, Inc. v. City of Wichita, 215 Kan. 636, 640, 527 P.2d 969 (1974), for the principle that “the home rule amendment in broadening the powers of municipalities did not extend to them the power to enact unreasonable ordinances under the guise of police power,” citing Community Antenna TV of Wichita, Inc. v. City of Wichita, 205 Kan. 537, 471 P.2d 360 (1970). Justice Prager, writing for the court in Restaurants of Wichita, also stated:
“Hence in a case of this type where the action of a city governing body is subjected to judicial scrutiny, the issue to be determined is the reasonableness or unreasonableness of tire city’s action. In applying this test a court will not substitute its own judgment of reasonableness for that of the legislative body charged with the primary duly and responsibility of determining the question of reasonableness. (City of Lyons v. Suttle, 209 Kan. 735, 498 P.2d 9.) There is a presumption the governing body of a city acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof. (Eastborough Corporation, Inc. v. City of Eastborough, 201 Kan. 491, 441 P.2d 891.)” 215 Kan. at 640-41.
The landowners have failed to meet the burden of showing the impact fee ordinance to be unreasonable. In addition, examination of the plaintiffs’ motion for summary judgment indicates that unreasonableness of the ordinance was not a ground for invalidating it which was presented to the district court. In their response to Leawood’s motion for summaiy judgment, the landowners included one paragraph about unreasonableness being a common-law restriction on municipal authority. It appears that the landowners were contending that the ordinance was unreasonable but there was no need to resort to the common-law restriction to invalidate it because “there are specific statutory limits which prohibit Leawood’s Highway K-150 Impact Fee Ordinance [from] being a legitimate exercise of home rule power.” This court does not consider issues raised for the first time on appeal. See Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 310, 836 P. 2d 1102 (1992).
Federal constitutional guarantee against uncompensated taking. The landowners contend that Leawood’s impact fee, because it conditions land use approval on fee payment, constitutes an uncompensated taking in violation of the Fifth Amendment. Here is the pertinent language of the Fifth Amendment: “[N]or shall private property be taken for public use, without just compensation.” The landowners generally rely on Dolan v. City of Tigard, 512 U.S. __, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994). That case involved the city’s conditioning building permit approval on the dedication of portions of Dolan’s property to the city for a floodplain greenway and a pathway for pedestrians and bicycles. The majority concluded that the conditions which required the dedication of land constituted an uncompensated taking. There is nothing in the opinion, however, which would apply the same conclusion to Leawood’s conditioning certain land uses on payment of a fee. The landowners cite no authority for the critical leap which must be made from a fee to a taking of property. Moreover, it does not appear that the issue was presented to the district court.
State constitutional guarantee against certain municipal taxes. The landowners contend that the impact fees are taxes and are illegal under Article 11, § 5 of the Kansas Constitution. The constitutional provision states: “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.” The district court concluded that the impact fee is not a tax, and, even if it were, Leawood has complied with die constitutional requirements. We agree.
There is general agreement that the distinction between a fee and a tax is authoritatively described in Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421. After reviewing cases from other jurisdictions, this court concluded:
“[A] tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon die general public. A fee is not a revenue measure, but a means of compensating the government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary — an individual can avoid the charge by choosing not to take advantage of the service, benefit, or privilege offered.” 252 Kan. at 427.
Applying die definitions from Executive Aircraft to the facts of die present case, the district court stated:
“[T]he K-150 Corridor Impact Fee area is, at present, largely undeveloped farm-ground. It is presently serviced by what is primarily a two-lane road, which serves as a state highway as well as ■ a city street. If property owners within that area wish to develop their land for other, more intensive uses, the city will charge an impact fee to defray the increased costs cause by the development. This is properly categorized as a fee, not a tax.”
The landowners seem to be arguing that the impact fee, like Newton’s fuel flowage fee, in fact is a tax. Newton unilaterally imposed a fee based on aviation fuel transported onto the airport by suppliers and in a tanker truck owned by Executive Aircraft, which operates its aircraft refurbishing business on the city’s airport property. Fuel transported onto the airport competed with the city’s on-site aviation fuel sales. This court concluded that the fuel flowage fee was a tax because the city was collecting revenue on the sale of fuel despite tire legislature’s intending to preempt local units of government from doing so. 252 Kan. at 431. Similar considerations are not presented in this case. The impact fee is not added onto the price of a commodity which is being sold or used in competition with city-operated sales.
The landowners also argue that the impact fees violate K.S.A. 79-4424(a) (Corrick), which requires an election before a city may impose an excise tax or tax in the nature of an excise on the use of real property. Leawood points out that the statute was repealed in 1972. (L. 1972, ch. 380, § 15; April 11.) The landowners purport to quote from Callaway v. City of Overland Park, 211 Kan. 646, 655, 508 P.2d 902 (1973), for the proposition that charges for the use of property are taxes in the nature of excise which cannot be authorized by home rule power. They omitted, however, the court’s reference to 79-4424 which makes it clear that the now-repealed statute was the operative limitation on home rule power.
Enabling legislation. It is the landowners’ contention that cities cannot charge impact fees in the absence of state enabling legislation specific to impact fees. “Kansas does not have such a statute. Therefore, Kansas is not one of those jurisdictions that permits municipal impact fees.” The argument is built on tire law of other jurisdictions. The landowners assert that Florida is the only state to allow imposition of impact fees in the absence of enabling legislation. They further assert that “a minority of American states have passed statutory enabling acts that provide for the legal imposition of impact fees.” Municipal impact fees, the argument continues, are prohibited in all other states, including Kansas.
Leawood asserts that on appeal is the first time the landowners formulated the argument that enabling legislation is required and built it around cases from other states. In a strict sense, Leawood seems to be correct. However, the landowners generally argued in their motion for summary judgment that Leawood lacked express legislative authority to impose the fees, and at least one of the cases relied on in this segment of their appellate argument was quoted to the district court. Furthermore, much of the district court’s opinion reads like a treatise on municipal power under the Kansas home rule amendment. Thus, there is no question about the district court’s having considered the point raised here.
Leawood’s other objection to the argument presented by the landowners is that they rely on rules from other states without providing information about the self-governing power of municipalities in those other states. Without that knowledge, Leawood contends, the court has no basis for gauging whether the foreign cases have any persuasive or authoritative value. We agree. There can be little profit in reviewing a number of cases from other states. Moreover, as Leawood points out, not all the cases cited by the landowners even involve municipal power.
The grant of power to the cities of Kansas expressly empowers them to levy fees and other exactions except where it is prohibited by state enactment uniformly applicable to all cities of the same class. We previously noted the landowners’ argument that the impact fees were prohibited by Art. 11, § 5 of the Kansas Constitution. The only other argument the landowners make centers on K.S.A. 14-556 to the effect that a state enactment uniformly applicable to all cities of the same class prohibits Leawood from levying impact fees. That statute provides:
“The governing body of any city of the second class is hereby authorized and empowered to improve state or federal highways located in such city .... The cost of such improvement and of the land condemned or purchased shall be paid out of any funds, which such city may have on hand, or such city may issue general improvement bonds in the manner provided by law to procure such funds.”
The landowners construe 14-556 in the same way they construe K.S.A. 12-689. Thus, their argument in this regard is rejected based on the same rationale in determining no actual conflict exists between Leawood’s impact fee ordinance and the Main Trafficway Act.
Police power. The landowners’ principal contention seems to be that police power does not supply the authority needed by Leawood to impose the impact fees. They argue that “[t]he District Court’s contention that the Impact fee’ scheme adopted by the City of Leawood is a proper exercise of police powers in this state is clearly erroneous.” Although the landowners’ statement of this issue makes it sound otherwise, the district court’s entry of judgment in Leawood’s favor does not depend on authority being supplied by police power.
The “contention” which the landowners refer to seems to be this statement of the district court:
“As the City argues in this case, the impact fees it has adopted here are enacted pursuant to what are traditionally characterized by a city as police powers. Widner, 37 Kan. L. Rev. at 625 (‘Subdivision regulations, winch include impact fees, are properly adopted under the authority of the police power.’); 8 J. Jeffrey Reinholtz & Timothy P. Bjur, McQuillins The Law of Municipal Corporations § 25.118.50 (1991) (‘Ordinances imposing fees on developers and new developments are generally enacted pursuant to the police power possessed by the municipalities.’)”
The statement was made in the context of the district court’s consideration of the question whether the legislature preempted enactment of the impact fee ordinance by passage of the Main Trafficway Act. According to the district court, until Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990), this court consistently held that “ ‘[legislative intent to reserve to tire state exclusive jurisdiction to regulate an area must be clearly manifested by statute before it can be held that the state has withdrawn from the cities the power to regulate in the field.’ Garten Enterprises, Inc. v. Kansas City, 219 Kan. 620, 620, 549 P.2d 864, 865 (1976) (emphasis added).” Broad language in Blevins unsettled the principle, but, according to the district court’s analysis, in cases decided since Blevins, this court seems to be restricting it to its facts. Thus, the district court concluded, the doctrine of implied preemption is inapplicable. Because the legislature did not expressly preempt the field with the Main Trafficway Act and, in fact, expressly made it supplemental to other provisions of law, the district court held that the Main Trafficway Act did not preempt enactment of the impact fee ordinance.
Although the landowners’ statement of this issue gives the impression that the district court treated police power as an independent source of authority for Leawood’s enacting the impact fee ordinance, that clearly is not the case. The district court noted that “[t]he theoretical underpinning for the police power analysis in Blevins is unknown,” and went on to endorse the principle stated in other Kansas cases “that home rule is merely an alternative procedural mechanism to enabling statutes for cities to use in exercising police powers.”
Identifiability of affected geographic area. The landowners argue that in order for the impact fee ordinance to be valid, the area of the K-150 Corridor must be determinable from substantial physical evidence, or a legal description of “the burdened geo graphic area” must be contained in the ordinance. The following definition of the K-150 Corridor is from subsection (k) of Ordinance 1027C: “[A]ll of that land within the north and south Highway K-150 reverse frontage roads, as set forth in the Lea-wood Master Development Plan.”
The landowners principally rely on cases involving the creation of fictional blocks for benefit districts. See Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976), where the City of Topeka created fictional blocks to conform to the meandering course of Burlingame Road. There, the fictional blocks were rejected because the governing statute, K.S.A. 13-10,115, specified that assessments were to be made to the middle of each block adjacent to the improved street. There is no comparable statutory requirement for areas in which impact fees may be imposed.
The landowners complain that they “have no means to effectively formulate property improvements upon an artist’s rendering of the burdened area” and that “[s]uch renderings alone do not provide an exact or justifiable basis for substantial burdens on private property.” While declining to find some requirement for specificity where none exists, the district court correctly suggested to the landowners that the ruling in this case did not preclude them from pursuing boundary disputes at a later date. In this regard, the district court stated:
“The City has provided all of the specificity that is required or, indeed, possible in its description of the highway K-150 corridor. The land is presently undeveloped. The City’s master development plan provides a drawing of the corridor, which is bounded by certain existing streets and two not-yet-constructed streets, each referenced as ‘reverse frontage road.’ The fee will not be assessed under the ordinance until budding permits for development within the area are sought. The ordinance provides for appeals to the City of any fees imposed under the ordinance. Leawood Code Section 13-512. If, as development occurs, there is any legitimate cause of debate about whether a property properly has been included within the K-150 Impact Corridor, that issue should be presented during the appeal process to the City and, ultimately, to the courts if necessary. In the abstract, however, there is nothing improper as a matter of law about the definition provided in the ordinance for the area in which the impact fee will be assessed.”
Authority reserved to a state agency. Finally, the landowners argue that even if the corridor is adequately identified for the time, its designation by the City likely is void because the Kansas Secretary of Transportation has sole authority to do so. Their argument is based on an unrelated stipulation in an unrelated case dating from 1979. In Ventures in Property I v. City of Wichita, 225 Kan. 698, 715, 594 P.2d 671 (1979), the court recited that “[i]t was stipulated the Secretary of Transportation was the only one with authority to designate highway routes or corridors in the State of Kansas.” The corridor in question was the right-of-way for a proposed highway. The court held:
“[W]here the proposed platting of land by an owner for residential development is approved by the governing body of a city in accordance with previously approved zoning regulations, subject to the sole restriction that a portion of the land in a defined highway corridor within the proposed plat be reserved in its undeveloped state for. possible highway purposes at some indefinite date in the distant future, the governing body has taken property from the landowner for which it is required to respond in damages by inverse condemnation.” 225 Kan. at 713-14.
The corridor, which only the Transportation Secretary was authorized to designate, was not a four-block wide corridor which was intended to encompass commercial and office developments in addition to the roadbed, as in the present case.
The landowners also contend that the district court’s entry of summary judgment in Leawood’s favor was improper because facts material to the City’s position are disputed. They identify the following facts as disputed: (1) amount of revenue from the impact fees, (2) how the revenue will be spent, (3) the “footprint” of the K-150 Corridor, (4) effect of the impact fee on the landowners, and (5) calculation of impact fees. The landowners have not assisted the court in its consideration of this issue. They do not link the facts they raise on appeal to Leawood’s numbered paragraphs of proposed uncontroverted facts or to their response. Nor do they tie in the district court’s discussion. The landowners rely on Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), in arguing that they contested the City’s proposed facts sufficiently to avoid summary judgment by merely “presenting] evidence from which a jury might return a verdict in [their] favor.” This court repeatedly has stated that “[t]he trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.” Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
From Leawood’s perspective, even though the landowners stated that they controverted many of the City’s proposed facts, no facts necessary to the district court’s ruling were controverted because the landowners’ controversions were “unreal, unsubstantiated or not in compliance with Supreme Court Rule 141.” It appears that the district court agreed with Leawood’s view.
The district court did not credit the landowners’ controversion of Leawood’s fact ¶¶ 4, 6, 9, 10, 12, 13, 14, 15, 16, and 17 on the ground that “no admissible evidence has been cited in controversion of those factual statements.” Furthermore, the district court determined “that each of those paragraphs is fully supported by the sworn affidavits presented with the City’s motion.” In this regard, the landowners fault the district court for not stating why their evidence is inadmissible and urge this court to examine the documentary evidence de novo. They do not specify which documentary evidence. Our review of their response to the City’s motion for summary judgment reveals that, with one exception, no evidence was cited or produced by the landowners in support of their controversions.
Amount of income from the impact fees and how it will be spent. The landowners’ complaint that Leawood did not list the anticipated monetary contribution of the State seems valid, but it is not material to either the potential amount of income which impact fees may generate or the percentage of the total project cost which fees may represent. Those figures remain constant with or without a figure for the State’s contribution.
The State’s contribution does seem relevant to Leawood’s fact ¶ 16, which states: “Even if all properties within the K-150 Corridor were improved at their highest and best use, the projected amounts of the impact fees would not reimburse the City for all its expenditures to improve the project.” The district court adopted Leawood’s fact ¶ 16 as part of its findings of fact. The landowners’ objection to this paragraph centered on the costs and the revenue from impact fees being unknown. The guts of this paragraph, however, is reimbursement. The federal, county, and CARS contributions total $6,118,250. Subtracting that amount from the estimated total project cost leaves $3,643,000. The agreement furnished by the landowners states that the contribution of the State of Kansas will be limited to 50% of the allowable project costs up to $3,628,500. Assuming for the purpose of this argument that all costs remaining after federal, county, and CARS contributions are allowable, the State would pay 50% of $3,643,000, or $1,821,500. The amount remaining for the City to pay would be $1,821,500, which is less than the projected amount of revenue from impact fees.
The “footprint” of the K-150 Corridor. Leawood asserts that the only facts material to the district court’s holding on the definition of the corridor are admitted. The City concedes that there is no legal description of the tracts included in the corridor. The City asserts that the landowners conceded the existence of a drawing which shows the area and uses of tracts of land within the corridor, and the landowners do not deny it in their reply brief.
Effect of the impact fee on the landowners. The landowners’ contention seems to be that it is unknown at this time how they will be affected by the ordinance. They state that they are burdened and affected adversely even though no plat approval or building permits have been sought. Leawood denies that any effect is material to the outcome.
Calculation of impact fees. Leawood proposed the following fact: “The City’s calculations of any impact fees required to obtain building permits is set forth in Resolution 1141.” The landowners responded:
“9. Controverted. This is a recent Resolution (enacted in 1994) imposing much higher fees and replacing an earlier Resolution. The increase was from about $2,000,000 to about $2,900,000, a 45% increase. Further, Resolution 1141 sets forth only the rationale for establishing the ‘multiplier’ to be used in calculating the impact fee under ordinance 1027C. Resolution 1141 does not set forth the formula used to make the calculations. However, even the calculation of the impact fee under Ordinance 1027C cannot be made, since the part of the equation relating to residential units or square footage is undetermined. There is no specific proposed development which defines either the number of ‘residential units’ or the ‘square foot of floor area, unfinished’ anywhere within the impact fee corridor, so Plaintiffs cannot know the amount of die impact fee to be imposed on any of the landowners.”
Leawood states that the figures to be used in calculating fees are set forth in the resolution. The City also contends that the landowners really did not controvert the City’s fact. Moreover, they did not comply with the requirement of Supreme Court Rule 141 (1994 Kan. Ct. R. Aimot. 160) to substantiate propositions with specific authority. The rule provides in pertinent part:
“Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter ... a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which prelude summary judgment (with precise references as required in paragraph [a] [to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record]).”
The City quotes the following from McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984): “Rule 141 is not just fluff — it means what it says and serves a necessary purpose.”
The only question which needs to be considered is whether the district court’s finding that the projected maximum amounts of revenue from impact fees would not reimburse Leawood for its expenditures on the K-150 improvement project is material to the district court’s entry of summary judgment in favor of the City. An issue-by-issue review of the district court’s opinion does not disclose any aspect of the decision which depends on the questionable factual finding. None of these issues involves consideration of the apportionment of project costs between impact fee revenue and city-at-large money. Thus, the district court did not err in not denying Leawood’s motion for summary judgment on the ground that material facts were disputed.
The judgment of the district court is affirmed.
Holmes, C.J., and Abbott, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Bradford W. Seaboum appeals from summary juc^ment granted to the defendants, Coronado Area Council, Bay Scouts of America, a Kansas not for profit corporation, and loy Scouts of America, a Washington, D.C., not for profit corporation (the defendants hereinafter are referred to as the Boy Scouts), ruling that “Boy Scouts is not a public accommodation” as that term is used in the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.
The court mled that the Boy Scouts could legally deny Seabourn’s registration to serve as an adult leader of the Boy Scouts because of his unwillingness to subscribe to the religious prin ciples of the organization. For the reasons set forth in this opinioa, we agree that the Boy Scouts are not “public accommodation:” under the Kansas Act Against Discrimination and affirm.
The Boy Scouts of America was incorporated in 1910 in -he District of Columbia. In 1915, the First Session of the 64fh Con gress oi the United States of America undertook to incorporate the Boy Scouts. Section 3 of the Charter stated:
“That tht purpose of this corporation shall be to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves aid others, to train them in Scoutcraft, and to teach them patriotism, courage, self-rsliance, and kindred virtues, using the methods which are now in common use ty Boy Scouts.”
Section 4 reflected that the “object and purposes [of the Boy Scouts were] solely of a benevolent character and not for pecuniary profit to its members.”
In the “Congressional Report in Support of Act to Incorporate Boy Scouts of America” it is stated:
“The Boy Scout movement is . . . intended to supplement and enlarge established modem educational facilities in activities in the great and healthful out of doors where may be the better developed physical strength and endurance, self-reliance, and the powers of initiative and resourcefulness, all for the purpose of establishing through the boys of today the very highest type of American citizenship.
“It tends to conserve the moral, intellectual, and physical life of the coming generation, and in its immediate results does much to reduce the problem of jivenile delinquency in the cities. . . .
“The Scout scheme is based upon the methods involved in educating the boy. It is a scheme of placing the boy on honor. In addition to requiring him to live u) to a standard or code of laws which insure development of character along proper lines, it requires him to study in order to pass certain tests of qualification. Tie passing of these various tests is recognized by the award of appropriate baiges or medals and insignia.
If any boy can secure these badges without meeting the required tests, the badges will soon be meaningless, and one of the leading features of the Scout program will be lost. likewise, with the uniform which designates the Scout. At fie present time this is protected by the use of insignia — a seal woven or stamped into the cloth. All of these various badges and insignia are at present protected by the patent laws, but under the patent laws such protection is available for a limited period only. The passing by Congress of this bill will, it is believed, provide the organization with proper protection for its distinctive insignia, the integrity of which is essential to the maintenance of the movement, rid protect it from tiróse who are seeking to profit by the good repute and high sanding and popularity of the Scout movement by imitating it in name alone.”
As soon as a boy joins the Boy Scouts, he becomes a member ofa patrol, which is a group of three to eight boys of similar age. Th goal of the Scout patrol is to help the boy become a good outdoorsman; active in his troop and patrol; physically fit; a knowledgeable, participating citizen; and a young man who lives by the Scout Oath and Law. A Scout troop is composed of all the patrol members. The troop meets less frequently than the patrol, usually for hikes, campouts, camporees with other troops, and a yearly trip to summer camp.
Article VI, § 6, of the bylaws provides that local councils be chartered with jurisdiction over a prescribed geographical area.
“Clause 1. Local councils duly chartered by the Boy Scouts of America shall, wherever possible, become incorporated under the laws of their'respective states pertaining to nonprofit corporations and pursuant to and consistent with these Bylaw's and the Rules and Regulations of the Boy Scouts of America.”
Article VII, § 1 states: “Youth membership in Boy Scouts of America is open to all who meet the membership requirements.”
Article VIII, § 1 addresses adult leadership:
“No person shall be approved as a leader unless, in the judgment of tire Corporation, that person possesses the moral, educational, and emotional qualities deemed necessary for leadership and satisfies such other leadership qualifications as it may from time to time require.”
Under Article IX, § 1, the Declaration of Religious Principle appears:
“Clause 1. The Boy. Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God. In the first part of the Scout Oath or Promise the member declares, ‘On my honor I will do my best to do my duty to God and my country and to obey the Scout Law.’ The recognition of God as the ruling and leading power in the universe and the grateful acknowledgement of His favors and blessings are necessary to the best type of citizenship and are wholesome precepts in the education of die growing members. No matter what the religious faith of the members may be, this fundamental need of good citizenship should be kept before diem. The Boy Scouts of America, dierefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that -religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.
“Clause 2. The activities of the member of the Boy Scouts of America shall be carried on under conditions which show respect to the convictions of others in matters of custom and religion, as required by the twelfth point of the Scout Law, reading, ‘Reverent.’ A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.
• “Clause 4. Only persons willing to subscribe to these declarations of principles shall be entitled to certificates of leadership in carrying out the Scouting program.”
The Boy Scout Handbook, p. 549 (10th ed. 1961), provides:
“It is easy to join a scout troop, but it is not so easy to live up to die ideals of Scouting. For that, you need courage and determination.
“In some ways, Scouting is like a game with rules you must follow to be a member of the team. The rules of Scouting are found in the Scout Oath, Scout Law, Scout motto, and Scout slogan. It is by following these .rules that you can become a true Scout.”
The Scout Oath provides:
“On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.” p. 549.
The Scout Handbook defines the meaning of the Scout Oath. With respect to the provision “To do my duty to God,” the handbook states:
‘Tour family and religious leaders teach you to know and love God and the ways in which God can be served. As a Scout, you do your duty to God by following the wisdom of those teachings in your daily life, and by respecting the rights of others to have their own religious beliefs.” p. 550.
The Boy Scout Handbook further provides:
“The Scout Law is the foundation upon which the entire Scouting movement is built. The points of the Scout Law are a guide by which every Scout tries to live.
“The Scout Law is a statement of facts:
‘A Scout is trustworthy . . . loyal . . . helpful . . . friendly . . . courteous . . . kind . . . obedient . . . cheerful . . . thrifty . . . brave . . . clean . . . reverent.’
“By doing all you can to live up to the Scout Law, you are a Scout. If you should unUfuThj break the Scout Law, you violate the spirit of Scouting.
“The ideals of the Scout Law are very high. Strive to live by them, and you will excel on your own and as a part of your Scout troop, community, and nation.” p. 553.
“Each point of the Scout Law is expressed in a single word rich with meaning. You should understand that meaning so well that you can explain it in your own words. What follows will help you reach that understanding.
“A Scout is REVERENT. A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.
“The word reverence refers to a profound respect for God. The wonders of die world remind us of our God’s creative power. We find it in the tiny lines of a leaf and the great mysteries of the universe. It exists in the kindness of people and in the teachings of our families and religious leaders.
‘We show our reverence by living our lives according to the ideals of our beliefs. The Scout benediction is ‘May the Great Master of all Scouts be with us until we meet again.’
“The United States Constitution gives each of us complete freedom to believe and worship as we wish without fear of punishment. All your life, you will encounter people who hold different religious beliefs or even none at all, It is your, duty to respect and defend the rights of others whose beliefs may differ from yours.” pp. 553-61.
Coronado Area Council, Boy Scouts of America is a Kansas not for profit corporation. The Coronado Area Council was incorporated pursuant to and consistent with the Boy Scouts of America.
Bradford W. Seaboum
Until September 1991, Bradford W. Seaboum had participated in the Boy Scouts in one capacity or another for nearly 20 years. Seaboum began his involvement with Scouting as a Cub Scout at age 7 and continued through age 17, reaching the level of Life Scout. As an adult, Seabourn’s involvement with Scouting spanned approximately 9 years, with the past 7 years as an Assistant Scoutmaster with Troop 76, BSA, Pawnee District, Coronado Area Council in Manhattan, Kansas.
The Coronado Council President printed, in the September 1991 issue of The Coronado Scout newsletter, a reaffirmation statement entitled “On Duty To God.” The reaffirmation, as approved by the Boy Scouts of America National Executive Board, provided:
“ON DUTY TO GOD
“Be it resolved that the following reaffirmation of the position of the Boy Scouts of America relating to duty to God be, and hereby is, enacted and that the bylaws, rules and regulations, and literature of the Corporation reflect this reaffirmation accordingly.
“In 1985, America celebrated the seventy-fifth anniversary of the Boy Scouts of America. Since 1910, eighty million Americans have subscribed to die Scout Oath and the Scout Law, which have stood the test of time.
“The National Executive Board of the BSA proudly states, through its mission statement, that the values which tire organization strives to instill in young people are those based upon the Scout Oath and the Scout Law. A Scout pledges: ‘On my honor I will do my best to do my duty to God and my country and to obey the Scout Law. . .
“The first Boy Scouts of America Handbook for Boys, published in August 1911, declares that ‘. . . no boy can grow into the best kind of citizen without recognizing an obligation to God.’ (page 561)
“While not intending to define what constitutes belief in God, the Boy Scouts of America is proud to reaffirm the Scout Oath and its declaration of duty to God. The following statements are additional information on the BSA position:
“The Boy Scouts of America has always been committed to tire moral, ethical, and spiritual development of our youth. Scouting is not a religion, but duty to God is a basic tenet of the Scout Oath and Law.
“Scouting does not seek to impose its beliefs upon others who do not share them. Virtually every religion is represented in Scouting, and the BSA does not define or interpret God. That is the role of the Scout’s family and religious advisors.
“Scouting respects those who do not share its beliefs and it would not ask others to alter their faith in any fashion in order to become Scouts. They too are free to follow their own beliefs. Rather, the BSA membership believes that the principles set forth in the Scout Oath and Law are central to the BSA goal of teaching the values of self-reliance, courage, integrity, and consideration to others. Scouting may not be for everyone, but for eight decades, Scouting has provided meaningful programs and adventure to more than eighty million young people in the United States.”
On September 9, 1991, Seaboum wrote a letter responding to the above reaffirmation. Seaboum expressed his belief that he chose to define God as “nothing.” Seaboum elaborated:
“When I say the Pledge of Allegiance, I pledge my oath to ‘one Nation, under “nothing.’ ” When I say the Scout oath, I promise to ‘do my duty, to “nothing” and my Country. . . .’ When I say the Scout Law, I say a Scout is ‘reverent’ to ‘nothing.’
“Call me a believer in ‘nothing,’ a nonbeliever, or call me an Atheist — they are one and the same.”
Seaboum noted that he had been active in Scouting as a child. Apparently, Seaboum was not an atheist during his youth. He attended church and held the same religious beliefs as his parents. Moreover, until the present case, Seaboum had been active in scouting both as an adult leader and as the father of four boys, two of whom were old enough to participate in Scouting activities.
Seaboum’s letter emphasized that he believed strongly that “Scouting has a lot to offer young men in their growth and development toward adulthood, as well as the larger goal of molding young people into members of society who will make a significant and lasting contribution to the human condition.” Seabourn stated, however, that the reaffirmation titled “On Duty to God” needed a qualifier “that a belief in a supernatural being is not a necessary requirement for entrance into Scouting, and that respect for others’ beliefs included respect for those who lack belief in God (or a god) as well.”
Two days after Seaboum sent his letter, the Boy Scouts Coronado Council President advised Seaboum that the Council had denied Seaboum’s registration to serve as an adult leader with the Boy Scouts. The letter further advised Seaboum of the appropriate procedure should Seaboum wish to request a review by the regional director of the termination of his Boy Scout registration.
On October 16, 1991, Seaboum wrote to the Boy Scouts Assistant Regional Director requesting such a review. Seaboum asserted the termination of his registration as an adult Scout leader was “entirely pernicious and arbitrary in nature, completely irresponsible and uninformed in its origin, and . . . demonstrated] partiality and discrimination against [his] religious viewpoints.” Seaboum further asserted:
“The fact that I am an Atheist is irrelevant to the central themes within Scouting of showing respect for other’s beliefs; that Scouting is not a religion; that Scouting has not, nor does it attempt to define God (i.e., the concept of God); that Scouting does not seek to impose its beliefs upon others; and that Scouting would not seek to alter anyone’s faith in any fashion in order to become a Scout or remain a Scout. . . .
“To imply that anyone without religious beliefs cannot be as good a citizen of this country as those who advocate religion is to show considerable disrespect for, and a callous disregard to those who lack religious beliefs. This is not something I want taught to my children, and is not a respectful position for an organization with high ideals such as the Boy Scouts to take.”
Finally, Seaboum wrote:
“[W]ith specific regard to the young, impressionable minds in Scouting, let me clarify one tiling: I have never attempted to proselytize (either in word or deed) anyone to my position concerning religion, most of all children who do not as yet have the full capacity to think critically (this includes my own children as well). I strongly feel such behaviour by anyone is completely opposed to the fundamental principle of religious freedom upon which this country and Scouting were founded.”
In a letter dated November 12, 1991, the Boy Scouts Assistant Regional Director responded to Seabourn, advising him that the regional review process had upheld the denial of Seaboum’s registration. On December 11, 1991, Seabourn wrote to the Chief Scout Executive, seeking review by a national board.
In February 1992, while the national review was pending, Seaboum wrote to the Boy Scouts National Executive Board requesting either a complimentary adult registration or waiver of the registration requirement so that Seabourn could accompany his 15-year-old son to Philmont Scout Ranch on a two-week “high adventure” scouting trip in mid-July. In April, Seabourn received written notice from the Boy Scouts National Office denying his request.
Seabourn contacted the Kansas Human Rights Commission (KHRC), seeking a restraining order against the Boy Scouts. Seaboum asserted the Boy Scouts’ denial of his request to go to Philmont with his son violated the “public accommodations” section of the Kansas Act Against Discrimination (KAAD) on the basis of religious discrimination. On June 29, 1992, the Chief Legal Counsel for KHRC responded that KHRC had no statutory authority in public accommodations cases under KAAD to enjoin the Boy Scouts prospectively.
On July 9, 1992, Seabourn filed a motion in Riley County District Court for a temporary restraining order seeking to enjoin the Boy Scouts from barring Seaboum’s accompanying his son on the Philmont trip. On July 10, 1992, the trial court denied the motion.
In September 1992, Seabourn filed suit against the Coronado Area Council in Riley County, under the Kansas Act Against Discrimination. Following discovery, the Boy Scouts filed a motion for summary judgment. The district court granted the motion, concluding that under Kansas law the Boy Scouts is not a public accommodation. The court stated:
“The Court has considered the statement of uncontroverted facts presented by defendants and plaintiff’s statement in contravention thereof. The Court finds that in all respects where plaintiff attempts to controvert a fact, the disagreement is either merely a question of semantics or the contraverdon does not go to a material issue of fact. For the sake of brevity of this opinion the Court will adopt defendants’ proposed findings of fact #1 through 28 and 38 through 44 as part of its findings of fact. Further facts will be stated throughout as may be necessary for clarity. The defendants will be referred to collectively as the ‘Boy Scouts.’
“Though not stated specifically in the pleadings, it appears that the argument between the parties is whether the Kansas Act Against Discrimination is applicable to the facts of this case. Plaintiff argues that it is, in that plaintiff claims the defendants are ‘public accommodations’ as that term is defined in the Act. Defendants claim that the Act does not apply and cites as its reasons:
1. Joining a Boy Scout Troop is not patronizing a place of business open to the general public;
2. Defendants are exempt because they are ‘non-profit fraternal or social associations or corporations.’
3. Defendants did not discriminate by refusing to accept plaintiff’s volunteer service.
“The significant issue to be decided is whether the Boy Scouts is a ‘place of public accommodation’ under Kansas law.
“The term ‘Place of Public Accommodation’ as used in the Kansas Act Against Discrimination has been interpreted ‘to include those places of business which are held open to the general public and where members of the general public are invited to come for business purposes.’ Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306 Syl. 5, 532 P.2d 1263. The court in this case further stated by way of illustration ‘stores, shops, and other business establishments offering goods, facilities, and accommodations to die public are places of public accommodation witíiin tire meaning of the . . . Act. . . .’ 216 Kan. 306, Syl 6.
“In this case the discovery record reflects that the Boy Scouts is not an organization open to the general public. Membership is limited to male youth between the ages of 11 and 18 who promise to observe the Scout Oatii and Scout Law. The Scout Oath requires a member to do his duty to God. The Scout Law requires a member to be reverent.
“The information provided to parents of prospective members provides as follows:
‘Leadership is restricted to qualified adults who subscribe to the Declaration of Religious Principle, The Scout Oath, and the Scout Law’ and
‘The Boy Scouts of America recognizes the importance of religious faith and duty; it leaves religious instruction to the member’s religious leaders and family.’ See Biberstein Affidavit, Exhibit B.
“The leadership application and accompanying materials provide as follows:
‘The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God, and, therefore, recognize the religious element in the training of the member, but it is absolutely non-sectarian in its attitude toward that religious training. Its policy is that the name and the organization or group with which the member is connected shall give definite attention to religious life. Only persons willing to subscribe to this declaration of religious principle and to the Bylaws of the Boy Scouts of America shall be entitled to certificates of leadership.’ Biberstein Affidavit, Exhibit D.
“It can thus be seen from the above that the Boy Scouts is not open to the ‘general public’, as suggested is necessary in KCCR v. Sears. Rather, it has limited its membership to a certain age group of young men and it has limited the availability of leadership positions to those adults who are willing to subscribe to the religious principles of the organization.
“The Court concludes the Boy Scouts is not a public accommodation as that term is used in Kansas law. The Court has reviewed the authority cited by plaintiff and finds it distinguishable in all cases either on the facts or because of statutory differences.”
Seaboum filed a petition for reconsideration, which was denied. Seaboum appealed, and we transferred this case from the Court of Appeals for our consideration. K.S.A. 20-3018(c).
Seaboum contends the trial court erred when it discounted numerous triable issues of fact, including the sincerity and actual application of Boy Scout membership requirements and the nature and extent of the offering of goods and services by the Boy Scouts. Moreover, Seaboum takes issue with the trial court’s consideration of the affidavit of Greg A. Biberstein, an individual to whom Seaboum objected and whose testimony he contradicted.
Summary judgment is governed by K.S.A. 60-256(c), which provides in part:
“The judgment sought shall be rendered forthwith 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.”
With respect to the trial court’s consideration of the Boy Scouts’ motion for summary judgment, this court has stated that under K.S.A. 60-256(c):
“A motion ... is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion die movant’s adversary is entided to the benefit of all reasonable inferences and doubts drat may be drawn from die facts under consideration. Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their significance summary judgment is improper. It is only when it can be said that reasonable persons could reach but one conclusion from die same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on die merits.” Williams v. Community Drive-in Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974).
When the issue on appeal is whether the trial court correctly granted a summary judgment, an appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party’s allegations as true, and it should give that party the benefit of the doubt when its assertions conflict with those of the movant. Factual inferences tending to show triable issues must be considered" in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will not lie. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Mildfelt v. Lair, 221 Kan. 557, 559, 561 P.2d 805 (1977).
The question then, is whether the facts Seaboum disputed on the summary judgment motion created a genuine issue of material fact to be resolved. As this court has long held:
“[A]n issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to die issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect die judgment, it does not present a genuine issue of a material fact.” Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966).
At the hearing on the summary judgment motion, the Boy Scouts presented evidence in support of its position in the form of testimony and exhibits. The Boy Scouts argued:
“What we have here is a case about die nature of Boy Scouting, the nature of adult volunteer leadership in Boy Scouting, and whether that’s a matter which the Kansas legislature intended to regulate in die law before us. . . .
[T]here really isn’t any very basic disagreement between the parties as to the basic nature of Boy Scouting. If in all the controverted facts put together by plaintiff be birds of a feather here to there, scouting is the same bird it started out as and the basic nature of scouting is not in dispute on the facts ....
", . . The relationship of members of scouting to the organization and to one another is very, very different from the relationship of a patron to the kinds of business establishments explicitly mentioned or generally described in the statute and die kinds of establishments which die Supreme Court of Kansas has ruled are covered by the statute. When we go to the store to buy a loaf of bread or a botde of soda we enter into a relationship which is episodic. It’s — we pay fully for what we receive. We don’t enter into a social relationship with the store clerk, and we don’t do it for social reasons. We do diat to accomplish the task of getting the loaf of bread or getting the botde of soda. The relationship of members of the scouting organization is completely different. People are involved in scouting not to obtain an economic benefit, but rather to join together in an organization designed to accomplish a — particular goals in the development of character in youth. The relationship is continuous. One typically remains witii one’s scout troop for a period of years and meets weekly, at least, and if not more often. The relationship is personal, it is social, it is fraternal. There’s a lot of bonding diat goes on among die members of a Boy Scout troop in die associations which take place around the campfire, on the trail, and in the weekly meetings in the church hall. So that we have a totally different type of relationship, totally different type of organization, totally different type of goals and objectives that are involved in scouting as opposed to the kinds of relationships that are involved in commercial organization.”
Seaboum’s response was that the evidence shows the Boy Scouts to be a business establishment, notwithstanding its nonprofit status:
“[Wjhen one looks at the Boy Scout organization there are in essence two organizations. There is the corporate nature of the Boy Scouts, the one that hires and fires employees, the one that has 8,000 employees nation-wide in the organization, die one that maintains leaseholds, owns properties. One is a retail business, operates a scout shop, which in fact they do in the very council office here in the city and this state. One that runs various marketing divisions, including sales of magazines, one which you’re familiar with — Boy’s life Magazine — and various odier profit ventures associated with the Boy Scouts of America.
“At the same time there’s a separate organization and one which covers the youth involvement in die organization, and the activities they engage in. One could not separate the two organizations. They are both part and parcel of each odier. One joins die organization, pays fees. One buys merchandise through the proceedings. The fact that they operate scout shops in the State of Kansas and elsewhere throughout the United States where the public can go to and buy certain merchandise shows clearly the nature of the retail business of this organization.
“Based upon the documents filed by the Boy Scouts themselves there are 990 forms filed with the State of Kansas, there are annual reports showing tire business nature of the organization, clearly show enough business purposes, attributes, facilities, accommodations to fit into the category of a business in this state.
“. . . The Boy Scouts of America is listed under the IRS code as a 501(c)(3) nonprofit corporation. If the Boy Scouts were a nonprofit fraternal.or social charitable organization they would have to qualify under 501(c)(8) of the IRS code. And 501(c)(8) clearly applies to fraternal, beneficiaries, societies, orders, or associations. By its very documents this organization is not a fraternal, beneficiary, society, order, association and cannot use that as an exemption to get around the statute.”
After the summaiy judgment hearing, the trial court considered the statement of uncontroverted facts presented by the Boy Scouts and Seaboum’s statement in contravention thereof and found no genuine issue of material fact.
The trial court found in all instances where Seaboum controverted a fact as presented by the Boy Scouts, “the disagreement is either merely a question of semantics or the contravention does not go to a material issue of fact.” The trial court adopted the Boy Scouts’ proposed findings of fact regarding the Boy Scouts in general, excepting the facts on Cub Scouts.
We have considered the Boy Scouts’ statement of uncontroverted facts and Seaboum’s objections. We, like the trial court, conclude that the material facts are not in dispute. The question presented is essentially a question of law involving the meaning of “public accommodations” in the Kansas Act Against Discrimination. We are satisfied that the record below was sufficiently developed to allow the trial court to conclude this case by summary judgment.
The question for resolution is whether the Boy Scouts properly may exclude from positions of adult leadership persons who are unwilling to profess a belief in and duty to a supreme being. More specifically, the question is whether the Boy Scouts is a “public accommodation” as that term is used in K.S.A. 44-1002(h) of the Kansas Act Against Discrimination.
In order to answer this question, we must examine the pertinent sections of the Kansas Act Against Discrimination, Kansas case law interpreting the meaning of the term “public accommodations,” and the authority cited by both Seabourn and the Boy Scouts from other jurisdictions dealing with similar questions.
The interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, 133, 853 P.2d 680 (1993). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 44-1001 et seq. sets forth the Kansas Act Against Discrimination. The pertinent provisions we deal with in this opinion are:
K.S.A. 44-1001:
“This act shall be known as the Kansas act against discrimination. It shall be deemed an exercise of the police power of the state for the protection of the public welfare, safety, health and peace of the people of this state. The practice or policy of discrimination against individuals in employment relations, in relation to free-and public accommodations, in housing by reason of race, religion, color, sex, disability, national origin or ancestry or in housing by reason of familial status is a matter of concern to the state, since such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of die state of Kansas to eliminate and prevent discrimination in all employment relations, to eliminate and prevent discrimination, segregation, or separation in all places of public accommodations covered by this act, and to eliminate and prevent discrimination, segregation or separation in housing.”
K.S.A. 44-1002:
"When used in this act:
“(a) ‘Person’ includes one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.
“(h) ‘Public accommodations’ means any person who caters or offers goods, services, facilities and accommodations to the public. Public accommodations include, bufare not limited to, any lodging establishment or food service establishment, as defined by K.S.A. 36-501 and amendments thereto; any bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mor tuary or cemetery which is open to the public; or any public transportation facility. Public accommodations do not include a religious or nonprofit fraternal or social association or corporation.
“(i) ‘Unlawful discriminatory practice’ means: (1) Any discrimination against persons, by reason of their race, religion, color, sex, disability, national origin or ancestry:
(A) In any place of public accommodations; or
(B) in tire full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof ....
“This term shall not apply to a religious or private fraternal and benevolent association or corporation.”
Seaboum argues that the Boy Scouts is in fact a “public accommodation” as interpreted by our court in the seminal case of Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975). Relying upon this case, Seaboum contends that the “umbrella clause” contained within the Kansas Act Against Discrimination clearly required a broad and expansive definition of “public accommodation” and that the Act prohibits discrimination by those establishments or “persons” which are held out to the general public and which members of the public are invited to patronize, or in the case of the Boy Scouts, join. Thus, according to Seaboum’s argument, Sears makes clear that discrimination is prohibited by all “persons” that could reasonably be described as “offering goods, facilities, and accommodations to the public.”
Seaboum further argues that in Sears, we relied on a New Jersey Supreme Court decision which adopted an expansive definition of the term “public accommodations” to include any establishment which caters to the public or by way of advertising or other forms of invitation induces patronage generally in a place of public accommodation. 216 Kan. at 315 (citing Sellers v. Philip's Barber Shop, 46 N.J. 340, 345, 217 A.2d 121 [1966]). Seaboum cites the following language from the Sears decision in support of his contention: “The history of anti-discrimination legislation in recent years appears to have been one of constantly expanding coverage,” 216 Kan. at 316, and “we discern a continuing intent on the part of the legislature to strengthen civil rights statutes and to enlarge the areas of their coverage.” 216 Kan. at 316-17. Seabourn concludes by saying it is now “too late to argue that fifteen years after Sears, Roebuck & Company that it is time to restrict the meaning of the term public accommodation’ as set forth in the Kansas Act merely because it now is sought to be applied to the largest youth organization in the world.”
The Sears decision is of critical importance in resolving the issue presented by this appeal. While not the only Kansas case to have discussed the meaning of “public accommodations” as used in the Kansas Act Against Discrimination, it is the first case that interpreted the term “public accommodations” as used in the Act. Moreover, Seaboum’s argument that the Boy Scouts is a “public accommodation” is based to a large extent on Sears.
In Sears, William V. Minner, who was black, filed a complaint with the Kansas Commission on Civil Rights complaining of a discriminatory practice by Sears, Roebuck, and Company in refusing him credit based upon his race, in violation of K.S.A. 44-1009(c)(1) (Weeks). The Commission issued a subpoena duces tecum to the credit manager of Sears, directing him to produce certain records. Sears did not comply with the subpoena, and the Commission filed an action in the District Court of Shawnee County under the provisions of K.S.A. 44-1004(5) (Weeks) to secure an order directing the manager to produce the subpoenaed documents. Such an order was entered with modifications, and Sears appealed. There was no cross-appeal. 216 Kan. at 308.
After dealing with procedural problems, the court noted that Sears presented two basic issues on appeal. “The first, in its words, is whether the commission had authority or jurisdiction to issue the subpoena. Or, to put the question in a somewhat different context, does a complaint such as Minner’s come within the purview of the Kansas Act Against Discrimination[?]” 216 Kan. at 310. Sears argued that the area of consumer credit was not covered by the Act and that its retail establishment was not a place of public accommodation as defined in the Act. 216 Kan. at 311.
Sears argued that the Kansas Act Against Discrimination set forth a list of places of public accommodations, which did not include a retail credit outlet, and that the term “place of public accommodation” must be read together with other subsections of the Act setting forth facilities that will be considered as public accommodations. In other words, Sears asserted that since the Act defined places of public accommodation to include hotels, motels, cabin camps, restaurants, and trailers, plus other facilities including a bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary, cemetery which is open to the public, or any public transportation facility, and did not include a retail credit operation, the term “public accommodation” simply did not cover its retail credit operation. 216 Kan. at 313.
In response to this argument, the court noted that “[i]n keeping with the broad public policy of eradicating the cancer of discrimination from our society, we interpret public accommodations’ to mean those places which are held out as open to the general public and which members of the public generally are invited to patronize and otherwise visit.” 216 Kan. at 313.
The court held:
“In keeping with the broad policy of eradicating discrimination from our society, the term ‘place of public accommodations’ is interpreted to include those places of business which are held open to the general public and where members of the general public are invited to come for business purposes." (Emphasis added.) 216 Kan. 306, Syl. ¶ 5.
The remainder of the Sears opinion deals with the question of whether a business establishment not expressly listed in the Kansas Act Against Discrimination may nevertheless be included as a “public accommodation” within the meaning of the Act. Citing with approval Dyson & Dyson, Commission Enforcement of State Laws Against Discrimination: A Comparative Analysis of The Kansas Act, 14 Kan. L. Rev. 29, 30 n.14 (1965), the court quotes at length:
“‘Kan. Sess. Laws 1965, ch. 323, §§ 1-11. The public accommodations coverage of the act, newly defined in 1965, combines two different philosophies of statutory draftsmanship: it used both an “umbrella clause” and a specific enumeration. Such combinations have often raised the question whether the detailed listing really is exclusive, rendering the broad clause nugatory under the principle of expressio unius est exclusio alterius. Some civil statutes have been restricted in this way. See, GREENBERG, RACE RELATIONS AND AMERICAN LAW 103-05 (1959). A careful reading of the Kansas act makes it clear, however, that its umbrella clause is not restricted by the enumeration. Section 2 (h) defines “public accommodation” as “any person, as defined herein, who caters or offers Iris goods, facilities and accommodations to the public.” That is the umbrella clause. The next subsection, (i), defines “unlawful discriminatory practice”
as any discrimination against persons in a hotel, motel, cabin camp, restaurant or trailer court and the segregation against persons in a place of public accommodations covered by this act by reason of their race, religion, color, national origin, or ancestry. The term “unlawful discriminatory practice” also means any discrimination against persons in a bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary, cemetery which is open to the public or on any public transportation facility. (Emphasis supplied.)
Thus, the unlawful practices consist of discrimination in hotels, motels, etc., and in a public accommodation as broadly defined, and also — the key word — in the long list of enumerated facilities. The legislature probably intended to make sure that the enumerated facilities would be included within the general concept of public accommodations. Discrimination is prohibited, therefore, in all businesses that could reasonably be described as offering “goods, facilities, and accommodations to the public" ’ (pp. 30, 31.)” 216 Kan. at 314. (Emphasis added.)
It is important to note that the Sears court concurred in the above analysis and the conclusion that discrimination is prohibited in all businesses that could reasonably be described as offering goods, facilities, and accommodations to the public. It is also important to keep in mind that Sears involved “discrimination in the area of consumer credit,” an operation generally open to the public and an operation that is traditionally considered a place of public accommodation. Emphasizing the common understanding of people in regards to traditional public accommodations, Sears, before any discussion of the merits of the question whether a retail establishment was a public accommodation, concluded: “We are nonetheless convinced that unfair credit practices violate the spirit and essential nature of the Act To eliminate and prevent discrimination, segregation, or separation of all places of public accommodations covered by this act.'” 216 Kan. at 311.
Seaboum urges us to follow a New Jersey case we relied on in Sears and a number of New Jersey cases following our Sears decision, adopting what he claims to be an expansive definition of public accommodations. According to New Jersey courts, “[a]n establishment which caters to the public or by advertising or other forms of invitation induces patronage generally is a place of public accommodation and cannot employ race, creed or color as a basis for refusing to serve members of the public who have accepted the invitation.” Sellers v. Philip’s Barber Shop, 46 N.J. at 345.
Seaboum focuses in particular on the aspect of Boy Scout advertising. Seabourn points to a 16-page advertising supplement about scouting that appeared in the October 1991 issue of Red-book magazine. Seaboum claims that the Boy Scouts advertisement in Redbook, which has a purported circulation of 3.9 million, failed to mention any requirement that a belief in God was necessary to become a Scout. Further, Seaboum claims an advertisement such as this is clearly an inducement to the general public for patronage, thereby establishing the Boy Scouts as a public accommodation.
Although advertising may be a consideration in determining whether a place is holding itself out to the general public or inviting the public’s patronage, advertising alone is not enough to convert an otherwise private “person” into a place of public accommodation within die meaning of K.S.A. 44-1002(h).
Moreover, Seaboum’s reliance on New Jersey authority is misplaced. Sears relied upon New Jersey authority for the proposition that merely because the statute does not list a certain facility, the failure to do so does not bar it from being a public accommodation. Sellers involved a place that was not listed in the New Jersey statutes and was cited in direct opposition to Sears’ argument that “only the places listed may be considered within the statute.” Thus, Seaboum’s reliance upon Sellers provides little, if any support for his position that Kansas adopted the New Jersey definition of “public accommodation.” Sellers, and later New Jersey cases cited by Seaboum, will be discussed at length below, for they do provide some guidance in our resolution of this issue.
Seaboum further relies upon Sears to suggest that a broad, sweeping definition of “public accommodations” is warranted. He extracts from Sears the phrases “constantly expanding coverage” and “a continuing intent on the part of the legislature to strengthen civil rights statutes and to enlarge the areas of their coverage.” 216 Kan. at 316-17. However, rather than suggesting a broad, sweeping definition of the term public accommodation, the Sears case uses those terms within the context of defining the coverage of the Act. Sears states:
“The history of anti-discrimination legislation in recent years appears to have been one of constantly expanding coverage. The Kansas experience illustrates the trend. The first Kansas Act Against Discrimination was adopted in 1961, although an anti-discrimination commission had been created in 1953, and although, also, a penal statute proscribing discrimination in certain limited areas had long been on the statute books.
“The 1961 Act pertained to unfair labor practices; it was geared to ‘eliminate discrimination in all employment practices.’ Two years later, in 1963, the legislature amended the Act to apply also to ‘accommodations in hotels, motels, cabin camps, and restaurants.’ It was not until 1965 that the Act, through amendment, was made to apply not only to lodgings and eating places but, in addition, to ‘places of public accommodation.’ In 1970 the Fair Housing Act was adopted, extending anti-discrimination legislation to the field of housing. Until 1972 discrimination because of race, religion, color, national origin or ancestry was proscribed in areas covered within the Act. In 1972 the word sex was added to the list and in 1974, physical handicap, giving further sweep to the Act.
“Viewing Kansas Civil Rights legislation in the perspective of recent history, we discern a continuing intent on the part of the legislature to strengthen civil rights statutes and to enlarge the areas of their coverage.” 216 Kan. at 316-17.
The “constantly expanding coverage,” “recent histoiy,” and “continuing intent on die part of the legislature to strengthen civil rights statutes and to enlarge the areas of coverage” all relate to acts of the legislature in expanding anti-discrimination legislation. This “constandy expanding coverage” has litde to do with the meaning of “public accommodations” within the Kansas Act Against Discrimination.
Finally, Sears concluded: “We harbor little doubt that places of public accommodations were intended to include places where general retail trade is conducted and diat in those places, distinctions are now not to be made based on race, religion, sex, physical handicap, ancestry or national origin.” (Emphasis added.) 216 Kan. at 317. It is important to note that the court uses the term “general retail trade” — a business establishment and a place which is commonly understood and accepted as a place of public accommodation.
The conclusion to be drawn from an analysis of Sears is that the term “public accommodations” was interpreted by Sears to include those places of business which are held open to the general public and where members of the general public are . invited to come for business purposes. Thus, the term “public accommodations,” as used in K.S.A. 44-1002(h) and “place of public accommodations” as used in K.S.A. 44-1002(i) include those places of business held open to the general public where members of the general public are invited to come for business purposes.
A further study of Kansas case law supports a more restrictive interpretation of “public accommodations.” In Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, 544 P.2d 791 (1975), the question presented was whether the Kansas Commission on Civil Rights had “the authority to entertain an investigative complaint charging a city police officer with an unlawful discriminatory practice, based on the officers decision to arrest the complainant and on the treatment afforded the complainant during the arrest and the time he was in custody.” 218 Kan. 248, 249. The Commission based its argument on K.S.A. 44-1009 (Weeks), which provided that it was an unlawful discriminatory practice for any person to discriminate in the full and equal use and enjoyment of services, facilities, privileges and advantages of any institution, department, or agency of the State of Kansas or any political subdivision or municipality thereof. The court noted that on the face of the statute it might appear that the above language extended coverage to the services, facilities, privileges, and advantages of a governmental agency in any area of activity, but the court construed all parts of the act together in pari materia, concluding:
“ “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 he construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” 218 Kan. at 252.
The court concluded that the Act did not cover governmental conduct in any other areas that did not involve employment, public accommodations, and housing. 218 Kan. at 253.
Noting that discriminatory arrest did not fall into either employment or housing, the court determined, relying upon Sears, that such a police function is not a matter of “public accommodation.” Howard, 218 Kan. at 253. Citing from the Sears decision, Howard noted that “[t]he public is not invited to patronize or otherwise visit’ a municipal police department in the sense the term is used in the Act. A police department’s law enforcement activities are therefore beyond the investigatory jurisdiction of the commission.” 218 Kan. at 253.
Howard, instead of engaging in an expansive view of the language of the statute, limited application of the Act to employment relations, public accommodations, and housing, even though the express language in the statute seemed to authorize coverage of “services, facilities, privileges and advantages” of a governmental agency in any area of activity.
In Kansas Comm’n on Civil Rights v. U.S.D. No. 501, 243 Kan. 137, 755 P.2d 539 (1988), the question involved was whether the Kansas Act Against Discrimination granted jurisdiction to the Kansas Commission on Civil Rights to investigate complaints of discrimination in public schools. The question raised in U.S.D. No. 501 is similar to that raised in Howard. As in Howard, we held that “the threshold issue is whether the governmental services were denied in the areas of housing, employment, and public accommodations.” U.S.D. No. 501, 243 Kan. at 142. The court then proceeded to determine whether public schools were places of “public accommodations.”
Relying upon Sears, the court concluded that public schools are not held as open to the general public and places where members of the general public are invited to patronize or otherwise visit. In resolving the issue, the court concluded:
“The legislative intent appears to be that the term ‘public accommodations’ includes all businesses which can reasonably be described as offering goods, services, facilities, and accommodations to the public. If the legislature had intended the public schools to be included within the concept of ‘public accommodations,’ they would have specifically so stated. In addition, the inclusion of the word ‘services’ in section (h) can reasonably be construed to mean business and not educational services.” U.S.D. No. 501, 243 Kan. at 143.
In U.S.D. No. SOI, we did not divorce the definition of “public accommodations” from the term business, from a common understanding of public accommodations, and from a traditional public accommodation. Public schools are not businesses, nor are they the type of institutions that are traditionally thought of as “public accommodations.”
Finally, in Kansas Human Rights Comm’n v. Topeka Golf Ass’n, 254 Kan. 767, 869 P.2d 631 (1994), we concluded that the Topeka Golf Association was a nonprofit social association or corporation exempt from the provisions of the Kansas Act Against Discrimination. On a petition for review, we adopted the opinion of the Court of Appeals, 18 Kan. App. 2d, 581, 856 P.2d 515 (1993). In its opinion, the Court of Appeals concludes:
“We are not unaware of the fact that certain organizations have seen fit to justify their discriminatory practices by claiming to be entirely social in nature. Where the record has shown that the organization in question was, in reality, a ‘business establishment,’ the courts have declared that such organizations may not discriminate under the guise of being a ‘social organization.’ One example of this is Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 95 L. Ed. 2d 474, 107 S. Ct. 1940 (1987). Although tins case has no significance to the instant matter, it is an example of an instance in which an organization which deemed itself to be social in nature was found to be in fact a ‘business establishment.’ We have examined the record for evidence of this nature and find nothing to support a conclusion that the TGA is a ‘business establishment' or that it is anything other than a social association or corporation.” (Emphasis added.) 18 Kan. App. 2d at 593.
Seaboum relies upon a line of New Jersey cases following Sellers v. Philip’s Barber Shop, 46 N.J. 340, 217 A.2d 121 (1966), for his argument that the Boy Scouts is a “public accommodation.” An examination of these cases, however, fails to lend support for his position.
In Sellers, Philip’s Barber Shop refused to give service on the basis of race. Similar to the holding in Sears, the Seilers court notes that a barbershop is traditionally considered a place of public accommodation:
“But aside from common understanding and acceptance by the people that a barber shop is a place to which the public is invited indiscriminately, títere is greater reason to regard it as a place of public accommodation titan exists hi many of the specific examples appearing in the statute.” 46 N.J. at 345.
The Sellers court states that a barbershop must obtain a license from the state, its operators must be trained before they receive individual licenses and that the practice of barbering and the operation of barbershops enjoy an intimate relationship with the public interest and welfare. 46 N.J. at 346.
Finally, the Sellers court concludes:
“As we have indicated the license and registration of die barber and his shop, with the accompanying monopoly of the practice of barbering have brought him into the public domain and given him a special status. So long as he holds that status he cannot discriminate against a prospective patron who seeks his service, be he Negro or of any other race, any more than a lawyer or other professional person may discriminate for that reason.” 46 N.J. at 347-48.
Seaboum’s reliance upon the very general statement quoted above, that “[a]n establishment which caters to the public or by advertising or other forms of invitation induces patronage generally is a place of public accommodation,” must be considered in context. The establishment in Sellers was one commonly understood and accepted by the public to be a place where the public is normally invited indiscriminately. Sellers involved a retail business establishment which advertised and which opened its doors to the public. Sellers presents a weak foundation for Seaboum’s argument that because the Boy Scouts advertise nationally by inviting boys between certain ages to join the organization, it is a public accommodation. His argument falls by the weight of his claim that by advertising nationally and offering goods and services and facilities, the Boy Scouts thereby becomes a public accommodation. His argument ignores not only the basis of the Sellers decision but fails to consider the nature of the Boy Scouts organization and its focus and goals, not to mention that the offering of goods, services, and facilities, while in many instances nongratuitous, is incidental to the focus and goals of the Boy Scouts.
In the more recent case of Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 33, 219 A.2d 161 (1966), the New Jersey Supreme Court quotes Sellers' general statement that “[a]n establishment which by advertising or otherwise extends an invitation to the public generally is a place of public accommodation.” This general statement forms the basis for Seaboum’s argument that the Boy Scouts is a public accommodation. However, the cited case, when viewed in context, has no relationship to the issue we must decide.
In Clover Hill Swimming Club, individuals incorporated the swimming club under the New Jersey General Corporation Act. It was privately owned and operated for the purpose of returning a profit to its stockholders. It was organized principally to construct and opérate beach, swimming, tennis, or recreation areas on the plan and form of a private membership club. No provision was made in the charter or bylaws for any membership control of club activities. The club advertised in the local papers. Dr. Goldsboro was denied membership because of his race, and the court notes:
“However, Clover Hill does not owe its existence to the association^ preferences of its members but to the coincidence of their interest in the facilities offered by tire owners. In other words, Clover Hill originated not because certain residents of Passaic Township wished to associate themselves in a swimming club, but rather because an entrepreneur was seeking a profitable investment.” 47 N.J. at 34-35.
Viewed in context, Clover Hill Swimming Club provides little, if any, support for the argument that the Boy Scouts is a “public accommodation.”
The final case relied on by Seaboum is Nat. Org. for Women v. Little League Baseball, 127 N.J. Super. 522, 318 A.2d 33 (1974). The New Jersey Supreme Court concluded that Little League Baseball may not exclude girls from playing baseball. The court held that “Little League is a public accommodation because the invitation is open to children in the community at large, with no restriction (other than sex) whatever.” 127 N.J. Super. at 531. It further noted that the Little League is “public in the added sense that local governmental bodies characteristically make the playing areas available to the local leagues, ordinarily without charge.” 127 N.J. Super. at 531. Seaboum relies upon the following lan guage in support of his position that nonprofit status has no bearing on the question:
“Finally, we discern nothing in the statute or its underlying purposes to persuade us that what would otherwise be a place of public accommodation is any less so because its management and sponsorship is by a nonprofit or membership organization rather than a commercial enterprise, or because it does not have exclusive use or possession of the site of its operations.” 127 N.J. Super. at 531-32.
Perhaps the only similarity between Little League baseball and the Boy Scouts is their nonprofit status. The Boy Scouts do not fit within the court’s description that “the hallmark of a place of public accommodation was that ‘the public at large is invited,’ ” and Little League offers “advantages and facilities on the basis of a general, public invitation to join.” 127 N.J. Super, at 530. While the Boy Scouts advertise nationally, as the trial court concluded, membership is not open to the public at large, and services or facilities provided are incidental to the focus and goals of the Boy Scouts.
Far from establishing that the Boy Scouts is a public accommodation, the New Jersey cases relied upon by Seaboum echo much the same approach that Kansas has taken. It is significant that in all Kansas cases, the approach was to restrict rather than expand the interpretation of “public accommodations.” Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 314, 532 P.2d 1263 (1975), expresses a clear policy that the application of the Kansas Act Against Discrimination will not be limited to those businesses listed but will be broad enough to include all businesses that could reasonably be described as offering goods, facilities and accommodations to the public.
The conclusion that may be drawn from Kansas cases interpreting “public accommodations” is that in a very broad sense and as a matter of public policy, Kansas abhors discrimination. However, in the area of public accommodations, the legislative intent is that the term “public accommodations” includes all businesses which can reasonably be described as offering goods, services, facilities, and accommodations to the public. Moreover, as gleaned from Sears, public accommodations may cover those “persons” traditionally considered a public accommodation; that is, those places involving a common understanding and acceptance by the public as a place to which the public is invited indiscriminately.
Seaboum contends that if the Boy Scouts is not a public accommodation because of advertising or other forms of invitation, the Boy Scouts is a business establishment notwithstanding its nonprofit status. Seaboum argued before the trial court and on appeal:
"[W]hen one looks at the Boy Scout organization there are in essence two organizations. There is the corporate nature of the Boy Scouts, the one that hires and fires employees, the one that has 8,000 employees nation-wide in the organization, the one that maintains leasehold, owns properties. One is a retail business, operates a scout shop, which in fact they do in the very council office here in the city and this state. One that runs various marketing divisions, including sales of magazines, one which you’re familiar with — Boy’s Life Magazine — and various other profit ventures associated with the Boy Scouts of America.
“At the same time there’s a separate organization and one which covers the youth involvement in the organization, and the activities they engage in. One could not separate the two organizations. They are both part and parcel of each otlier. One joins the organization, pays fees. One buys merchandise through the proceedings. The fact that they operate scout shops in the State of Kansas and elsewhere throughout the United States where the public can go to and buy certain merchandise shows clearly the nature of the retail business of this organization.”
Seaboum cites numerous facts from the record that were considered by the district court prior to its granting summary judgment to the Boy Scouts. Some of those facts are gleaned from the 1991 annual report, funding of the Boy Scouts, the program marketing of the Boy Scouts, the Boy’s Life magazine published by the Boy Scouts, advertisement in the Redbook magazine with a circulation of 3.9 million, tax returns and numerous forms filed with the state and national government on the 1991 income figure, and information on the Coronado Council with over 7,000 youth members served in 1991. In developing his argument, Seaboum relies almost exclusively on those aspects falling within what he says is Category 1, the business aspects of the Boy Scouts, but completely neglects and ignores the associational aspects of the Boy Scouts.
In support of his conclusion that the Boy Scouts is a “public accommodation,” he relies upon the case of Curran v. Mount Diablo Council of the Boy Scouts, 147 Cal. App. 3d 712; 195 Cal. Rptr. 325 (1983) (Curran I), which, according to his claim, held that the Boy Scouts were subject to the Unruh Civil Rights Act in California. This Act provides in part: “All persons . . . are free and equal, and no matter what their sex, race, color, [or] religion . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51 (West 1982).
The Curran court did conclude: “[W]e find that to allow an organization to offer its facilities and membership to the general public, but exclude a class of persons on a basis prohibited by law would be contraiy to the public policy expressed in the Unruh Act.” 147 Cal. App. 3d at 732. As Seaboum further notes, the Curran court held that the concept of “organizational membership,” per se, does place an organization outside of the scope of the Unruh Act unless it is shown that the organization is truly private.
However, the Boy Scouts note Curran v. Mount Diablo Council of the Boy Scouts, 29 Cal. App. 4th 192, 29 Cal. Rptr. 580, rev. granted 31 Cal. Rptr. 126 (1994) (Curran II). This case, even though perhaps not final because a petition for review by the California Supreme Court has been granted, deserves our consideration. Seaboum does not mention or discuss this case in his reply brief.
In Curran II, the court concluded that Curran I, to the extent it found that Mount Diablo Council was a business establishment, was in error. In Curran II, the court noted that its holding in Curran I was expressly limited to examining the sufficiency of the complaint. The court’s only concern in Curran I was whether the plaintiff had succeeded in stating a cause of action. 29 Cal. App. 4th at 200.
The decision in Curran II notes that the trial court, on November 6, 1990, issued a decision regarding “business establishment.” Curran II states:
“Judge Disco read die precedents available to her at that time as having caused ‘[t]he word “business” to lose “its commonly understood meaning.” ’ The court held that die term ‘business’ operated simply as an excluder, sweeping in all organizations except ‘a small intimate, private club.’ The court held that the Mt. Diablo Council could not prove it was a ‘small, intimate, private club’ based on the number of Scouts in the Council (approximately 13,500), a lack of selectivity in membership, and a ‘public orientation and prominence in the community.’ In holding that the evidence showed that Mt. Diablo Council was a ‘business establishment’ within the Unruh Act, the court recognized that it was extending the Unruh Act beyond any previously reported case . . . .” Curran II, 29 Cal. App. 4th at 200.
Before further discussion of Curran I and II, it should be noted that the language of the Unruh Act specifically uses the phrase “all business establishments of every kind whatsoever.” However, as we have indicated above, our interpretation of the Kansas Act Against Discrimination convinces us that we may not divorce the concept of public accommodation from the usual meaning and the common understanding of the word business.
Curran II notes that the California Supreme Court decision in Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1159, 278 Cal. Rptr. 614, 805 P.2d 873 (1991), called “for judges To give meaning to every word and phrase in the [Unruh] statute’ ” and states that as a result California has “refused to extend the Act to situations not within the letter of the statute.” Curran II, 29 Cal. App. 4th at 227. The Curran court noted that “prior to Harris, the Supreme Court had applied the Act to not-for-profit organizations in only two circumstances: (1) [w]here the organization had a business purpose [citations omitted], or (2) [w]here the organization existed to offer a traditional public accommodation. [Citation omitted.]” 29 Cal. App. 4th at 227.
In concluding that Mount Diablo Council did not fit within either category, the court noted that the trial court had “specifically found that Mt. Diablo Council had ‘no substantial, or even significant, business purpose.’ ” 29 Cal. App. 4th at 227. (quoting Welsh v. Boy Scouts of America, 787 F. Supp. 1511, 1518 [N.D. Ill. 1992]). The court in Welsh stated that the “central purpose” of scouting “is to foster the development of certain skills and values in male youths.”
Curran II notes that the Boy Scouts is not a traditional public accommodation. Interestingly enough, the court distinguishes a case relied upon by Seaboum to support his conclusion that the Boy Scouts is a public accommodation. That case is Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal. 3d 72, 219 Cal. Rptr. 150, 707 P.2d 212 (1985). Because Seaboum relies upon Isbister, we quote at length from Curran II, which distinguishes Isbister upon the very grounds on which Seaboum relies to support his position.
Isbister involved the Boys’ Club of Santa Cruz, Inc., which provided a public recreational facility and limited its membership to boys. Isbister concluded that even though the Boys’ Club did not have a business purpose, it was nevertheless a public accommodation. 40 Cal. 3d at 81. In discussing this case, the Curran II court notes:
“Isbister is the only case in which the California Supreme Court has applied the [Unruh] Act to an organization that lacked a business purpose. In applying foe Act to foe Boys’ Club, foe Supreme Court expressly relied on foe fact that foe function of foe Boys’ Club was to provide ‘ “public” ’ ‘recreational facilities’ of foe kind commonly thought to be a ‘ “public accommodation.” ’ (Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal. 3d 72 at p. 81.) The court noted that boys used foe Boys’ Club facility on a drop-in basis, that there were few organized activities, and that foe Club lacked ‘any sense of social cohesiveness, shared identity, or continuity.’ (Ibid.)
“The Isbister court took pains to make clear that its analysis did not extend to ‘organizations . . . which maintain objectives and programs to which foe operation of facilities is merely incidental.’ (40 Cal. 3d at pp. 76-77.) The court went on to affirm that: ‘ “Private” groups and institutions do not fall prey to the Act simply because they operate “nongratuitous” residential or recreational facilities for their members or participants.’ (Italics added.) (Id., at p. 84, fn. 14.)
“In a vigorous dissent, Justice Mosk asserted that foe decision would threaten ‘foe Boy Scouts, Club Scouts, Young Men’s Christian Association, and similar organizations that maintain camps or physical facilities.’ (40 Cal. 3d at p. 93.) In response, foe majority retorted that ‘Nothing we have said compels that result.’ (Id., at p. 84, fn. 14.)
“As foe trial court noted here: ‘Unlike foe Boys Club in Isbister, Mt. Diablo Council is not a single purpose organization operating a traditional “public accommodation.” ’ The Council does own recreational facilities, namely foe camps, but their operation is not foe Council’s ‘principal activity and reason for existence’ as foe Club’s provision of gym and pool facilities was. And foe camps are not utilized on a causal, drop-in basis as Club, foe facilities in Isbister, were.
“The relationships in scouting are ‘ “continuous, personal, and social” ’ and ‘take place more or less outside “public view.” ’ (Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal. 3d at p. 84, fn. 14.) The court in Isbister held such relationships to be beyond the Act’s reach. As Professor Horowitz, whom the Isbister court referred to as the principal commentator on the Act, has explained, the Act was not intended to reach relationships that are personal, social, continuous, and gratuitous. (Horowitz, The 1959 California Equal Rights in ‘Business Establishments’ Statute—A Problem in Statutory Application (1960) 33 So. Cal. L. Rev. 260, 288-290.) Rather, the statute should be applicable only to ‘relationships in which the “establishment” offers its facilities for compensation, and in which the relationship with the patron is relatively noncontinuous, and in which personal and social aspects of the relationships are relatively insignificant.’ (Id., at p. 289.)
“Thus, a patron deals with a retail store episodically and irregularly, his interactions with store personnel are perfunctoiy and impersonal, and he pays prices which reflect the full cost of what is received. In contrast, a Boy Scout meets with his patrol once a week and with his troop once a month. The relationships with his fellow scouts and his scout leaders are close and personal. The time devoted to scouting by the youth members, and volunteered by their leaders, is gratuitous.
“The record here fully supports the same conclusion as the Welsh court that scouting is not a ‘place of public accommodation’: ‘Having reviewed the body of evidence presented in this case, this Court is convinced that it would not particularly matter whether a Cub Scout den met in a club house, in a living room, or in a garage. The kinds of activities in which Boy Scout, Cub Scout, and Tiger Cub groups typically engage are not dependent upon the accoutrements of any particular location, let alone of a facility one would normally think of as a place of public accommodation. Rather, the success of the Boy Scouts, and the attraction to boys and their parents alike, lies in the sense of community among its participants.’ (Welsh v. Boy Scouts of America, supra, 787 F. Supp. at p. 1539.)” 29 Cal. App. 4th at 228-230.
In a telling observation, the Curran II court notes:
“To require such organizations to serve all comers would radically transform them and undermine their reason for existing. Indeed, if the characteristics listed by the court below were sufficient to classify an organization as a business establishment, then local Girl Scout groups and even the Archdiocese of Los Angeles of the Roman Catholic Church could not escape such classification either.” 29 Cal. App. 4th at 231.
It is also interesting that in Curran II, the court notes the benefits which the Scouts and Scouters receive from participation in the program are overwhelmingly personal and noneconomic. The court found the evidence does not establish that scouting activities enhance a Boy Scout’s chances of getting into a college of his choice or advancing his chosen career to any greater extent than participation in any activity that can be included in a resume. 29 Cal. App. 4th at 201. In this connection, it should be noted that in a case relied upon by Seaboum, Rotary Club of Duarte v. Board of Directors, 178 Cal. App. 3d 1035, 224 Cal. Rptr. 213 (1986), which holds that the Rotary Club nonprofit membership organization was a business establishment subject to the provisions of the California Unruh Act, the court did so because of the business advantages to which such privilege of membership entitled the member. The same is true of Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or. App. 151, 724 P.2d 887 (1986), wherein the court noted the business advantages for club members. Moreover, in Fraternal Order of Eagles v. Tucson, 168 Ariz. 598, 816 P.2d 255 (Ct. App. 1991), the Arizona Court of Appeals found the Fraternal Order of Eagles to be a “place of public accommodation” under the City of Tucson’s ordinances because while the organization conducted some activities in private, they also had public fish frys, public bingo games, and a public smorgasbord. The fact that many more of their activities were public, not private, subjected them to the provisions of the ordinance.
The scope of “public accommodations” under K.S.A. 44-1002(h) includes business establishments and those establishments traditionally considered public accommodations. A broad, expansive coverage suggested by the plaintiff, divorcing “public accommodations” from business establishment or business purpose, which this court has not done in its past decisions, is not the law in Kansas.
The record supports our conclusion that the Boy Scouts has no business purpose other than maintaining the objectives and programs to which the operation of facilities is merely incidental. Moreover, relationships in scouting stand in stark contrast to retail or business-like establishments in that scouting relationships are continuous, personal, and social and take place) more or less, outside of public view; whereas business establishments or businesslike establishments or those establishments commonly thought of as public accommodations involve interactions between store per sonnel and patrons that are perfunctory and impersonal, involving the payment of prices which reflect the full cost of what is received.
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The opinion of the court was delivered by
Sdc, J.:
Kenneth E. Haddock appeals his jury trial conviction of the first-degree murder, K.S.A. 1992 Supp. 21-3401, of his wife of 20 years, who was found beaten to death and lying under a pile of wood in the garage of their Olathe home. Our jurisdiction is under K.S.A. 1994 Supp. 22-3601(b)(l) (a maximum sentence of life imprisonment was imposed).
The many trial errors asserted by Haddock, a former bank president, are separated for discussion into four groupings:
(1) The propriety of certain questions and comments by the State in cross-examining Haddock and in closing argument;
(2) the trial court’s failure to suppress evidence based on alleged violations of Haddock’s Fifth Amendment rights;
(3) evidentiary questions arising from the admission of evidence of marital discord, a prior federal bank fraud conviction, a polymerase chain reaction (PCR) DNA analysis, and expert opinion on blood spatters; and
(4) the trial court’s failure to give a requested voluntary manslaughter instruction.
We find no error and affirm.'
FACTS
The five-day trial included over 40 witnesses and 100 exhibits. Although Haddock does not challenge the sufficiency of the evidence, a background review is helpful in understanding the issues presented.
Haddock has a college degree in agriculture education. He moved into banking and finance, eventually serving as president of two Kansas banks. In 1986, he started his own company, First Finance, Inc., which purchased loans from the FDIC and other institutions. He described First Finance as “very profitable.”
Although Haddock and his three teenage children testified that their family was loving and supportive, a dark cloud loomed overhead. For two years preceding the murder, Haddock and his family lived with uncertainty and anxiety caused by his indictment and conviction for federal bank fraud.
The Federal Bank Fraud Case
In September 1990, Haddock was indicted in federal court for bank fraud and related offenses arising from transactions in 1987. A jury convicted him on 10 counts. Haddock was sentenced to 42 months’ imprisonment. He remained free on bond pending appeal. On appeal, the Tenth Circuit affirmed his conviction but remanded for resentencing. United States v. Haddock, 956 F.2d 1534, modified on reh’g 961 F.2d 933 (10th Cir.), cert. denied 113 S. Ct. 88 (1992); see also United States v. Haddock, 12 F.3d 950 (10th Cir. 1993) (collateral claim of ineffective counsel denied; remanded for resentencing); United States v. Haddock, 50 F.3d 835 (10th Cir. 1995) (error found in restitution order of $76,000; remanded for recalculation of restitution). Haddock’s first resentencing in the federal case was scheduled for December 18, 1992.
Thus, on November 20,1992, the day of the tragedy, Haddock’s conviction had been affirmed and he was awaiting resentencing. Haddock’s attorney met with an Assistant United States Attorney and a probation officer from 10:30 a.m. to noon that day to negotiate matters relevant to the upcoming sentencing hearing. Haddock did not attend the meeting.
Haddock and his children admitted that the federal bank fraud case was stressful for them. In May and June of 1991, Haddock’s wife, Barbara, spoke with two social workers, expressing “anxiety” and “anger” about the federal prosecution. However, neither social worker recalled Barbara mentioning any fear of violence from her husband. Haddock spoke with a marriage and family therapist in March 1992 about stress-related breathing problems experienced by his oldest daughter. He told the therapist that Barbara brought up the federal case “almost any time he would get in her presence,” whereas he “tended to shy away from talking about it” because it was a “real hard thing to talk about.”
Barbara’s best friend, Kathy Finkleston, testified that she and Barbara often discussed the federal case and that Barbara would get very upset and emotional, “not knowing what was going to happen or what she was going to do.” Finkleston said she believed Barbara was “becoming very frustrated” with the expense and duration of the federal case, and that “she was getting angry with Ken that it kept going on and on and on.” Barbara told Finkleston that the retainer alone for Ken’s Washington, D.C., lawyer was $40,000, and that whenever the lawyer asked for more money he wanted at least $25,000.
The Hours Preceding Barbara’s Death
Barbara’s last day'began early. She met FinBeston for breakfast at 6:30 a.m., something the two of them did often. She and Finkleston talked about Barbara’s upcoming surgery, about their children, about Christmas, and then about the federal case and the meeting of attorneys scheduled for that day. FinBeston remembered that when Barbara brought up the federal case, she said, “Oh, my stomach just took a flip.” Barbara then said that Haddock’s lawyer was wanting additional money and that Barbara was concerned that they might have to dip into a savings account they had set aside for their son’s college education. Overall, however, Finkleston believed that Barbara was in “pretty good spirits.”
Barbara worked until around noon at her job as a triage nurse. She ran a couple of errands on her way home. Haddock went to work at First Finance from about 9:30 a.m. to 1:00 p.m., and then went home for lunch. Haddock and Barbara arrived home at the same time, around 1:20 p.m.
According to Haddock, when he first arrived home he and Barbara brought in groceries from her car. She told him the garage door had a problem, so he worked on it for a few minutes. He then ate a light lunch as Barbara made chili for the weekend. They discussed Barbara’s upcoming surgeiy and their younger daughter’s plans to have friends over that night. Haddock said he brought in the mail at about 1:45 p.m., then started a fire in the fireplace. The last thing he said he did before leaving was to throw two articles of clothing in the hallway by the washing machine. One was a white shirt he had been wearing; the other was a pair of slacks from his bedroom. Haddock testified that the shirt was missing a button and the slacks needed to be let out in the waist, and that Barbara said she would mend them. Haddock said he left home at approximately 2:00 p.m.
Discovery
At around 3:20 p.m., the youngest daughter arrived home from junior high school. Barbara’s car was in the driveway and the garage door was closed. She entered through the front door, noticed some chili cooBng, saw the television on, and called out for her mother. She was not concerned when she heard no reply, as nothing appeared out of the ordinary. Within minutes, the older daughter arrived home from high school.
The daughters eventually found Barbara in the garage buried under a pile of wood. They called 911. The older daughter summoned the neighbors, the Hartleys, who were registered nurses. When the Hartleys arrived, they cleared the remaining logs off of Barbara and checked for a pulse or respiration, but found neither.
The police arrived at 4:08 p.m. Haddock did not arrive home until 4:20 p.m. A daughter had called her father s office and left a message that he needed to come home right away. A neighbor and a police officer met Haddock at his car and escorted him inside through the front door to the living room. He embraced his daughters, who were crying. Haddock later tried to walk into the garage, but he was quickly stopped and told to stay inside the house. The police told Haddock that because his wife’s death was “unattended,” a police term meaning unattended by a physician, standard procedure required that the death be handled like a homicide until homicide could be ruled out.
Investigation
Detectives at the scene quickly suspected foul play. Barbara’s injuries were unlike those that might be expected from falling wood. In an autopsy, Dr. Bonita Peterson found bruises and abrasions on Barbara’s hands and arms, consistent with defensive wounds. She also observed bruises and lacerations on the face, and massive trauma to the back of the head, which she thinks resulted from 6 to 12 blows with a blunt object.
Other evidence revealed an orchestrated crime scene. Detectives found a separate pool of blood a substantial distance from Barbara’s body. Blood spatters and smears suggested that Barbara had been moved from this separate pool to the location under the wood pile. Blood was also found on Barbara’s car, which was parked outside the garage. Drip patterns on the car suggested that the car had been moved after the blood was deposited. The location and nature of the blood spatter evidence on the car, when considered together with other blood spatter evidence inside the garage, suggested that the beating occurred while the car was in the garage. Tomatoes were also splattered in various places on the garage floor. Nothing was missing from the home.
At approximately 6:00 p.m., as detectives continued searching for clues at the home, Haddock and his son accompanied Detective Larue to the Olathe Public Safety Center for questioning. In the interview, the detective observed and photographed two scratches on Haddock’s right wrist that appeared fresh. Police also obtained Haddock’s shoes from him at the center.
During tire evening, the detectives at the center received updated infonnation from the crime scene suggesting that the death was not accidental. The questioning of Haddock gradually grew more pointed and accusatory until Haddock finally broke it off and was taken home. Haddock never confessed. He was arrested five days later.
Physical evidence obtained from Haddock and from the scene played a key role in his identification as the killer. A small amount of blood was found on a shirt and pair of pants belonging to Haddock located on the floor inside the house. The shoes Haddock wore to the police center also had traces of blood on them. The blood on the clothing and shoes had DNA markings that matched Barbara’s blood and excluded Haddock’s blood. Blood spatter patterns were consistent with the pants and shoes being worn at the time the blood was deposited. Detectives also discovered two hairs clutched in Barbara’s right hand. One hair showed DNA markings consistent with Haddock and inconsistent with Barbara, the other produced no marking.
The State’s Theory
The State’s theory was that Haddock and Barbara were experiencing marital discord because of the federal bank fraud case, which led to a fight and then to the killing. The State argued that the 6 to 12 blows to the back of Barbara’s head, some of them delivered after she was lying on the floor (according to blood spatter patterns), provided evidence of premeditation. The State asked the jury to infer that Haddock went from “acting on impulse” to realizing that he had gone too far to turn back and thus knew “exactly what he was doing” in administering the multiple, lethal blows. Haddock then orchestrated the garage scené in an attempt to make the death appear accidental, hoping there would not be a rigorous investigation.
Under the State’s theory, the attack probably occurred around 2:00 p.m. because a neighbor testified that she heard a strange, muffled, sound from outside, like wood falling on concrete, shortly after 2:00 p.m. that afternoon. Although no murder weapon was conclusively established, the State introduced evidence that the fireplace poker appeared to have been wiped clean, unlike the other fireplace tools in the set and unlike how the Haddock children remembered the condition of the poker.
Haddock’s Defense
Haddock denied killing his wife, advancing an alibi defense. A Wendy’s restaurant sack found in his van had a receipt showing a purchase at 3:18 p.m. the day of the killing. The wristwatch that Barbara was wearing, which appeared to have been broken during the attack, showed a time of 3:16 p.m. Wendy’s was more than 10 minutes away from the Haddock home. Haddock testified that he left home at approximately 2:00 p.m., went to the Olathe Public Library to do research for his federal case, then to Wendy’s for a burger and milkshake, then out to look at some property for a possible investment purchase by his company, and then back to the office, where he was immediately told by his secretary to go home.
As for the DNA evidence obtained from his shoes and the clothes found inside the house, Haddock argued that Barbara’s blood could have been transferred to his shoes when he embraced his daughters, who carried their mother’s blood from their attempts to help her. He advanced a similar theory (the daughters rushing back and forth from garage to the 911 call) to explain Barbara’s blood on his clothes found lying on the floor near the laundry room.
The State attacked his alibi. The two front desk clerks at the Olathe Public Library who worked that Friday afternoon'testified that it was a “slow afternoon” and that they did not remember seeing Haddock or anyone resembling Haddock in the library. The State introduced evidence of a watchmaker who examined and tested Barbara’s watch. He determined that the hands could have been manipulated to show any time after it had been broken. The State argued that the watch was part of the orchestrated crime scene.
DISCUSSION
Haddock asserts a cluster of trial errors arising from the admission of certain of Haddock’s conversations the day of the murder.
Prosecutor’s Comments on Haddock’s Silence
Haddock first contends that the prosecutor made improper references at trial to his post-Miranda silence. He challenges two areas of inquiry by the prosecution: (1) his failure to explain before trial that he took off a shirt at lunchtime so Barbara could replace a missing button, and (2) his failure to express concern that his children might be in danger from Barbara’s at-large killer. The State contends that both inquiries were permissible forms of impeachment. We agree.
During his direct examination, Haddock testified that he took off a shirt at lunchtime and threw it on the floor by the laundry room because it was missing a button and Barbara had offered to fix it. On the night of the murder, however, Haddock told Detective Larue that he did not change shirts that day, but only added a sweater. Two other witnesses, Hartley and Officer Ridley, also testified about what Haddock said concerning his clothing that night. Neither witness heard Haddock mention changing shirts due to a missing button.
The prosecutor focused on these inconsistencies in the following exchange with Haddock, from which the challenged question arises:
“Q: Sir, would you agree that you told Detective Larue the shirt you had on during that interview, a short-sleeved shirt, was the shirt that you had on all day that day?
“A: I mistakenly said that, yes.
“Q: Would you agree, Mr. Haddock, that you never made any mention to Detective Larue at the present time during this interview that you had taken a shirt off, and then also brought a pair of pants down to a location inside the house where you’ve alluded to?
“A: I did not recall that at the time.
“Q: Would you agree, sir, that this is the'first time this week that we’ve heard you indicate to anybody that you took that shirt off while you were home, because your wife thought there was a button missing, and she wanted to take care of it for you?
“[Defense Counsel]: Objection. That’s an improper question, Judge. That’s a direct comment on his Fifth Amendment rights.
“[Prosecutor]: No, it is not, Judge. He’s made several statements to several people.
“[The Court]: Court will overrule die objection, allow the answer.
“A: I have never commented to the police or to your office since November 20th.
“Q: My question was: Did you ever mention to any of the neighbors, Frank Hartley, Joenne [sic] Bate, or anybody else or Sergeant Ridley, who asked you about your clothing situation, anything about having removed that shirt because your wife wanting to do some work on it?
“A: I don’t recall.” (Emphasis added.)
Due process prohibits the State from eliciting evidence at trial of an accused’s silence at the time of arrest, after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994).
It is not unconstitutional, on the other hand, to reveal an accused’s pre-arrest and pre-Miranda silence, although such evidence may be excludable on other evidentiary grounds, such as a lack of probative value. See Fletcher v. Weir, 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309 (1982).
Doyle applies to prior silence by an accused, not prior statements. Anderson v. Charles, 447 U.S. 404, 408, 65 L. Ed. 2d 222, 100 S. Ct. 2180 (1980). When a defendant makes statements to police or others outside of custodial interrogation, or when a defendant in custody waives the right to silence and speaks to police, then the State is free to impeach trial testimony by showing incon sistencies in prior statements. State v. Wood, 230 Kan. 477, 480, 638 P.2d 908 (1982).
A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal. State v. Fisher, 222 Kan. 76, 83-84, 563 P.2d 1012 (1977). On review, we examine the record to determine whether the prosecutor committed constitutional error. See Gadelkarim, 256 Kan. at 685. That inquiry focuses on whether the language used by the prosecutor was “manifestly intended,” or “was of such character that the jury would naturally and necessarily take it to be,” a comment or question about a defendant’s post -Miranda silence. 256 Kan. at 685.
Haddock contends that the question reflects on his silence after the interrogation on November 20, 1992, and thus is improper. The prosecutor’s response to the objection and attempt to clarify his question suggest that he did not manifestly intend to bring up the subject of Haddock’s silence. The prosecutor responded to the objection by saying that Haddock had made “several statements to several people,” thus implying that he was merely trying to emphasize Haddock’s inconsistent prior explanations.
We do not think the jury likely or necessarily would have interpreted the prosecutor’s question as a comment on Haddock’s silence. Rather, the statement was likely interpreted as a reference to prior witnesses’ testimony heard earlier that week. The trial began Monday, October 25, 1993. The cross-examination at issue took place Friday, October 29. Earlier that week, during the State’s case, several people including Frank Hartley, Officer Ridley, and Detective Larue, had testified about statements they heard Haddock make about his clothing on the night of the murder.
Haddock cites State v. Lofquest, 227 Neb. 567, 418 N.W.2d 595 (1988), and State v. Guerra, 161 Ariz. 289, 778 P.2d 1185 (1989). Both cases are distinguishable from the case at bar. In Lofquest and Guerra, the prosecutors’ comments were clear references to the defendants’ invocation of their right to remain silent. In the present case, Haddock talked to police and others at length. The challenged question by the prosecutor was a reference to Haddock’s failure to tell police and others the same explanation that he gave at trial. We find no error in the prosecutor’s question.
Danger of a Suspect At-Large
Haddock next challenges a series of questions or statements by the prosecutor, all related to the inconsistency between Haddock’s actions after the murder and his theory that he was not involved. The essence of the prosecutor’s questions and comments was that Haddock never expressed any fear for the safety of his children on the night of the murder, which might be expected if Haddock was innocent and was told that his wife’s death was not accidental.
Haddock contends that the statements were impermissible comments on his post -Miranda silence. He has failed to preserve this issue for appeal because no objection was made to the statements on that ground during trial. Fisher, 222 Kan. at 83-84. The contention lacks merit in any event. Haddock made numerous statements to police and others before exercising any constitutional right to remain silent. The fact that the prosecutor’s tactic was to identify something missing from Haddock’s statements that arguably might naturally be there — concern for the safety of his children — does not mean that the statements were directed at Haddock’s protected “silence.” See State v. Taylor, 223 Kan. 261, 264, 574 P.2d 210 (1977).
Comments by the State at Trial
Haddock next contends that because a part of his interview with police was suppressed by the trial judge, the prosecutor’s statement in closing argument that “the defendant, the entire night, never once . . . inquired about the safety of his family” (emphasis added) was improper because it necessarily referred to a portion of the interview that was suppressed, as well as the portion not suppressed. Again, the contention fails for lack of a timely objection on die “entire night” ground. The jurors were unaware that a part of his interview was suppressed. As far as the jurors knew, the term “entire night” was a reference only to the admissible portion of the interview — the only portion of which they were aware. Haddock does not say how he was prejudiced by the statement.
Finally, Haddock contends that a question by the prosecutor violated the State’s own motion in limine, which sought to prevent Haddock from speculating about other possible suspects. Counsel objected to one of the prosecutor’s inquiries about other possible suspects. The prosecutor acknowledged his error and withdrew the question. The trial court sustained the objection and instructed jurors to disregard it. Haddock did not move for a mistrial. We find no reversible error.
Haddock’s Statements at the Police Station
Haddock argues that the trial court erred in refusing to suppress the entire interview with Detective Larue on the night of the murder. Except for purposes of impeachment, the trial court suppressed the last 20 pages of the 51-page transcript of Haddock’s interrogation. The first 31 pages of Haddock’s interview were ruled admissible, however, and the State used excerpts from this interview to show inconsistencies in Haddock’s story. The first phase of the interview, which was deemed admissible by the trial court, began' at approximately 7:30 p.m. and continued until 9:09 p.m. The second phase began at 9:59 p.m. and lasted until 11:02 p.m. The third phase began at 12:32 a.m. .and lasted until 1:25 a.m. A substantial portion of the second phase and all of the last phase of the interview were suppressed because the trial court found that Haddock had invoked his right to a lawyer at the bottom of page 31 of the transcript of the interview.
Haddock asserts that a statement made by Detective Larue at the start of the interrogation was misleading, deceptive, and tainted the “waiver of his Miranda rights.” The challenged statement occurred as Larue verbally recited to Haddock the Miranda warnings:
“Q. You have the right to talk to a lawyer and have him present with you while you are being questioned. Do you understand‘that?
“A. Yeah. Is there amj reason for me top
“Q. Not at this point, I don’t. .
“A. Okay.” (Emphasis added.)
Detective Larue proceeded to advise Haddock that if he could not afford to hire a lawyer, one would be appointed to represent him during questioning if he wished. Larue also advised Haddock that he could “decide at any time to exercise these rights.” Haddock said that he understood. Before reading Haddock the Miranda warnings, the detective informed Haddock that he was not in custody and he was free to leave at any time.
After the suppression hearing and after reviewing the videotape, the trial court ruled that Haddock was not in custody during his questioning at the police center. The trial court reasoned that Haddock was not under arrest. He was told he was free to leave, and he did in fact leave freely that evening. The trial court further held that the detective’s response to Haddock’s question about an attorney was not misleading, and that Haddock “voluntarily and knowingly without duress, coercion or promises proceeded to answer questions of the officer.”
“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.” State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992).
Haddock first makes the argument that whether he was in “custody” is irrelevant to the question of whether his statements should be suppressed. Haddock argues that his Miranda rights were violated by Detective Larue’s answer to his question whether he had any reason for a lawyer. He dismisses the importance of “custody” by arguing that when police give a suspect Miranda warnings, even in a noncustodial setting, they thereby promise to “honor the defendant’s constitutional rights” and the full protections of Miranda therefore apply.
Custody would not matter if Haddock was contending that his statements were obtained through coercion, threats, or duress, or other involuntary means violating due process. See United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987) (noting that even if Miranda rights are not violated, statements may be inadmissible if made involuntarily). However, the “constitutional rights” Haddock seeks to enforce — the safeguards against self-incrimination established by Miranda — do not exist outside “custodial interrogation.” See, e.g., United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); State v. Fritschen, 247 Kan. 592, 597, 802 P.2d 558 (1990) (“Miranda only applies if the interrogation was custodial.”). Although we have never addressed the question directly, other courts have held that the giving of Miranda warnings, itself, does not transform a noncustodial interrogation into a custodial interrogation. United States v. Charles, 738 F.2d 686, 693 n.6 (5th Cir. 1984); United States v. Lewis, 556 F.2d 446, 449 (6th Cir.), cert. denied 434 U.S. 863 (1977). We agree with the view expressed in Charles and Lewis. We have expressed our reluctance to place controlling weight on any one factor in the analysis of whether a suspect was in “custody.” See Fritschen, 247 Kan. at 603.
Haddock argues that State v. Ninci, 19 Kan. App. 2d 192, 865 P.2d 1078 (1993), rev. denied 254 Kan. 1009 (1994), is “almost an identical case.” He fails to note that Ninci was decided before the United States Supreme Court filed Davis v. United States, 512 U.S__, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). After Davis, we overruled Ninci in State v. Morris, 255 Kan. 964, Syl. ¶ 4, 880 P.2d 1244 (1994). In any event, Ninci assumed the interrogation was custodial, and therefore it is distinguishable.
We agree with the trial court that Haddock’s interview was not custodial at the outset and find no error in the trial court’s refusal to suppress the entire interview.
Haddock’s Shoes
Haddock contends that the trial court should have suppressed his shoes and the blood and wood chips found on them because his consent came after he had invoked his Miranda rights. Detective Larue asked Haddock for his clothing and shoes at the police center. Haddock indicated he might like to speak to an attorney. The interview recessed from 11:02 p.m. to 12:32 a.m., and Haddock was provided a phone book and a phone with privacy.
Haddock’s consent to the seizure of his clothing took place after he called the attorney. Haddock therefore contends that the physical evidence should have been suppressed. The State argues that Haddock did not raise this issue before the trial court.
Constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). We are unable to find in the record where Haddock raised a specific constitutional objection to the admissibility of the shoes and clothing obtained from him during the interview on the night of the murder. The only written motion to suppress in the record contains a broad request to suppress numerous items, including his shoes, clothing, and wood chips. The motion addresses, however, only those items obtained in a search of Haddock’s home and automobiles.
. Haddock argues on appeal that such evidence was “fruit of the poisonous tree” and should have been suppressed after the trial judge ruled that his statements beyond page 31 of the transcript were suppressed. He did not object to such evidence on that basis at trial. Haddock has failed to preserve this issue for appeal.
The Evidentiary Issues
The admission or exclusion of evidence, subject to exclusionary rules, is within the trial court’s discretion. State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view. State v. Baker, 255 Kan. 680, Syl. ¶ 9, 877 P.2d 946 (1994).
Marital Discord
Haddock argues that the trial court improperly admitted evidence of marital discord.
The State introduced the following evidence to prove friction and discord between Haddock and his wife before the murder: Haddock’s federal bank fraud conviction; Barbara’s comments to counselors in May and June of 1991 about how “angry” and “stressed out” she felt because of the bank case; Haddock’s comment to a social worker in March 1992 that his daughter’s stress-related ailments might be connected to his bank case; Haddock’s comment to the social worker that his wife wanted to talk about the bank case all the time, whereas he preferred not to talk about it; testimony from Barbara’s best friend about how Barbara talked about the strain the bank case placed on her and how Barbara became very emotional during significant events in the bank case; evidence that Barbara was aware that a meeting between attorneys relating to Haddock’s upcoming sentencing was scheduled for November 20, 1992, the day of the murder; and two books found in Haddock’s possession, one in his closet and the other in his van (both had pieces of paper marking pages relating to the financial aspects of divorce).
Haddock argued in a pretrial motion that the marital discord evidence should be excluded as irrelevant, unduly prejudicial, and inadmissible under K.S.A. 60-455. Haddock renewed his earlier objections to such evidence at trial, thus preserving the issue for appeal.
The State alleges that the marital discord evidence introduced at trial was offered to show Haddock’s motive and intent to murder his wife. We have recognized: “As a general rule, in the case of marital homicide, evidence of a discordant marital relationship and the defendant’s previous ill treatment of the spouse is relevant as bearing on the defendant’s motive and intent.” State v. Mayberry, 248 Kan. 369, 384, 807 P.2d 86 (1991). No specific “marital discord” provision is contained in the Kansas Rules of Evidence. K.S.A. 60-401 et seq.
Haddock argues that “previous ill treatment” such as violence or intimidation must be shown in order for marital discord evidence to be admissible. Most prior marital homicide cases in Kansas addressing the admissibility of marital discord evidence involved evidence of prior violence, threats, or intimidation by the defendant. No such evidence was presented in the case at bar.
Although most marital homicide cases have arisen, predictably, out of abusive relationships, that does not mean evidence of prior discord between a defendant and a victim must rise to a violent level to be admissible. Haddock cites no cases excluding evidence of marital discord simply because the discord did not involve violence, threats, or intimidation.
There should be limits, of course, on the admissibility of marital discord evidence in marital homicide cases. Admissibility properly rests in the sound discretion of the trial court.
In the instant case, the State’s theory of Haddock’s motive and intent to murder his wife rested entirely on the theory that there was marital discord. The State was not using marital discord evidence to buttress another theory of the murder. Thus, evidence of marital discord was probative to the case as presented by the State.
The likelihood of unfair prejudice to Haddock because of the marital discord evidence was reduced by several factors. First, Haddock was not unfairly surprised by the admission of the evidence, and therefore he was able to counter the State’s evidence with his own evidence tending to show that his relationship with Barbara was healthy. Two of his children testified that he and Barbara were “very close,” “very, very supportive of each other,” a “very loving couple,” and that “they made quality time to spend together.” His attorney in the bank fraud case testified that there was reason for Haddock and his wife to be optimistic at the time of the murder about the direction the federal case was heading. On cross-examination of the State’s marital discord witnesses, defense counsel elicited admissions that they had never heard Barbara complain of any violence, threats, or intimidation by Haddock.
Second, the trial judge gave a limiting instruction specifically addressing marital discord evidence. In light of the probative nature of the marital discord evidence under the State’s theory of the case, the variety of sources from which the evidence was introduced, and the factors mitigating the likelihood of prejudice, the trial court did not abuse its discretion in admitting marital discord evidence.
The Bank Fraud Conviction
Haddock argues that the trial court erred in admitting evidence of his federal bank fraud conviction. Haddock filed a pretrial motion to exclude any evidence of the federal case under K.S.A. GO-421 and K.S.A. 60-455, or, in the alternative, to require that counsel and witnesses refer to the matter as the “federal proceeding.” The trial court denied both requests and admitted evidence of the prior conviction at trial over Haddock’s renewed objection. The trial court suggested that the evidence of Haddock’s prior conviction “is relevant and is evidence of marital discord in this case.”
On appeal, Haddock assumes that the trial court admitted the evidence of his prior conviction under K.S.A. 60-455 and argues that this was improper. He does not contend, as he did before trial, that K.S.A. 60-421 (evidence of a crime not involving dishonesty or false statement, inadmissible for purpose of impairing credibility) required exclusion of the evidence.
Haddock first challenges the relevance of his bank fraud conviction to the question of motive. He rightly points out that under the State’s theory, the alleged connection between his fraud conviction and his motive to murder his wife is more attenuated than the connection in State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987). Haddock argues that, in contrast to Ruebke, he “had no reason to kill his wife because of the federal conviction” because he had “nothing to gain.”
According to the State’s theory, Haddock may have hoped to gain one or more of the following: relief from Barbara’s constant inquiries about the federal case, a sore subject; avoiding a costly divorce; or avoiding potentially severe consequences, such as divorce or criminal prosecution, from losing his temper and beating his wife. Each of those theories had additional evidence to support it.
“Relevant evidence” is any evidence having any tendency to prove a material fact. K.S.A. 60-401(b). “To be admissible, evidence must be confined to the issues but need not bear directly upon them.” State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986). Haddock’s federal conviction could have been deemed relevant to the nature, source, and timing of his alleged marital discord, which was relevant to the issue of motive and to the issue of identity. The trial court did not abuse its discretion in finding Haddock’s federal conviction to be relevant evidence.
Haddock contends that even if his federal conviction is relevant, the trial court failed to “make any finding that balanced the probative value of the evidence against the prejudicial effect,” citing State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976). Such a finding may be implied from the circumstances. The defense objected to the evidence, contending that “the prejudicial effect of the federal conviction outweighs any probative value that it may have.” The trial court allowed the testimony, without explanation. Haddock cites no authority requiring the trial court to articulate its probative-prejudicial balancing act for the record.
. Moreover, the trial court took two precautions to reduce the prejudicial effect of the evidence of Haddock’s prior conviction. The judge orally instructed the jury that
“you should not consider the fact that defendant was convicted of financial institution fraud in the Federal Court matter as evidence of guilt in this matter. You’re instructed to consider that only along with all of the other evidence in the case, in hearing the evidence, but the mere fact that he was convicted of an unrelated matter is not to be considered by you as evidence, drat because of that he committed this crime.”
Also, the judge submitted a similar written instruction to the jury.
Haddock further contends that in cross-examining his bank fraud attorney, the State “went beyond the bounds of using the federal conviction as the basis for marital discord, and . . . simply elicited testimony regarding the bank fraud of which the sole purpose was to prejudice the jury.” The cross-examination touched upon rulings in the federal case that came after November 20, 1992, and upon the amount of money that Haddock had paid in legal fees.
Haddock argues that rulings in the federal case after November 20, 1992, have no possible relevance on marital discord as a cause of the murder. While that may be true, the cross-examination at issue was conducted for a different purpose. On direct examination, the attorney testified that in November 1992 his optimism as to Haddock’s chances for a new trial in the federal case was “very high.” On cross-examination, the State obtained admissions from the attorney that the motions for new trial pending in November 1992 were later denied. Thus, the cross-examination at issue went to the credibility of the testimony that there was optimism in the Haddock family about the federal case in November 1992.
Wood Chips in Haddock’s Shoe
Haddock objected to admission of two small wood chips found in his left shoe, which police obtained the night of the murder. He contends that the wood chips should not have been admitted because a trace evidence analyst was unable to conclusively fink the wood chips to the wood pile in the garage. The trial court held that Haddock’s objection went to the weight of the evidence rather than admissibility. We agree.
Haddock relies on State v. Walker, 239 Kan. 635. Walker is easily distinguishable. In Walker, the bloody shirt found in tire defendant’s home was not found until five months after the murder. The forensic examiner could not determine whose blood was on the shirt, or even whether the blood was of human or animal origin. There was no evidence about whether the shirt belonged to the victim or the defendant. We held that admission of the bloody clothing was erroneous (though harmless error). 239 Kan. at 644.
By contrast, in the case at bar, although the wood chips were of insufficient quality to compare with the wood in the garage, they were obtained from Haddock’s shoes on the night of the murder, just hours after the alleged event. Barbara was found buried under a pile of wood. The shoes were also found to contain blood spots, which matched the victim’s blood. There was sufficient corroborating evidence to raise a reasonable inference that the wood chips came from the wood pile in the garage. The trial court did not abuse its discretion in admitting the wood chips into evidence.
DNA Evidence
The State introduced DNA test results from blood found on Haddock’s shoes, his pants found near the laundry room, and a single hair clutched in Barbara’s hand. The evidence came in through the testimony of Dr. Robert C. Giles, the scientific director at Gene Screen, a laboratory in Dallas, Texas.
Haddock contends that the State did not introduce sufficient foundational proof that Gene Screen followed standard and proper procedures when it performed its PCR tests. Haddock does not challenge PCR testing generally; rather, he challenges the specific procedures used by Gene Screen and the lack of evidence as to whether Gene Screen’s procedures measure up to the scientific community’s standards for PCR testing.
The DNA evidence in the instant case obtained through PCR testing differs substantially from the RFLP analysis discussed and upheld in Smith v. Deppish, 248 Kan. 217, 230-39, 807 P.2d 144 (1991). The technical differences between PCR and RFLP testing are discussed in detail in Annot., Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313, 320-23. We have approved PCR testing in State v. Hill, 257 Kan. 774, 895 P.2d 1238 (1995).
In the present case, Dr. Giles testified that Haddock’s blood DQ Alpha type is 1.1,4, and that Barbara’s is 1.1,1.2. According to Dr. Giles, about 7.4 percent of the Caucasian population share Haddock’s type, and about 5.4 percent share Barbara’s type.
Gene Screen determined that the blood on Haddock’s shoes and on his pants found near the laundry room was 1.1, 1.2, the same type as Barbara’s. The hair found in Barbara’s hand, meanwhile, was determined to be 1.1, 4, matching Haddock’s type.
We initially question whether Haddock raises the same objection to the DNA evidence on appeal that he did in the trial court. A defendant cannot raise points on appeal which were not presented to the trial court. State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993), see K.S.A. 60-404. We extend Haddock the benefit of the doubt as to whether the issue is preserved for appeal.
On appeal, Haddock cites the Frye test, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which we have adopted for the admissibility of new scientific evidence. Haddock specifically contends “that a third prong exists as to the requirement of a foundation regarding the actual procedures used in this case, and that foundation was not established.” Haddock relies on People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989) for the third prong of his suggested analysis. We rejected the same argument in Deppish, 248 Kan. at 236-38; see State v. Witte, 251 Kan. 313, 324, 836 P.2d 1110 (1992). The focus of the “third prong” that Haddock advocates is not on the reliability of the new scientific theory generally, but on the reliability of the specific procedures used by the laboratory which performed the tests sought to be introduced into evidence.
The trial court in this case did not reach its decision to admit the DNA evidence in an unreasonable manner. Rather, the trial court conducted a hearing during the preliminary hearing where the Deppish benchmarks were applied, as well as a Frye analysis. The State’s expert witness, Dr. Giles, testified concerning the acceptance of the scientific community to the theory and techniques of PCR analysis and its application in Haddock’s case. His testimony enabled the trial court to consider the credibility and weight of the testimony in rendering a reasoned decision. The trial court ruled
“that the DNA testing performed in preparation of this case followed the procedures which are widely accepted in the scientific community, and the Court finds, from the evidence, that the methodology is sound and reliable within this appropriate community. That the testing and analysis are admissible, and the Court finds that they have been recognized as rehable, have gained general acceptance in the scientific community, involve scientifically and professionally established techniques and meet the requirements pursuant to law. The Court further finds that the techniques used in these tests are capable of producing rehable results.”
Haddock filed a pretrial motion in limine seeking to exclude the DNA evidence. At trial, his counsel objected before Dr. Giles’ testimony, stating the “Court knows our position, that it’s not sufficiently shown to be reliable for the procedures in this case.” The trial court granted a standing objection.
Dr. Giles testified at length at trial, using 10 slides to assist in his explanation of the Gene Screen PCR testing process. At the conclusion of his explanation, the State asked if the Kenneth and Barbara Haddock samples were typed through the process he had described. Dr. Giles answered, “Yes, they were.” Haddock neither objected to Dr. Giles’ testimony on the lack of evidence that Gene Screen followed its PCR testing procedures meticulously, nor did he call an expert to counter Dr. Giles’ testimony.
Our decision in State v. Hill resolves the question of PCR testing being recognized as receiving wide scientific acceptance. Our description of the Frye test in Deppish, 248 Kan. at 236, and Dr. Giles’ testimony that the Haddock samples were subjected to the laboratory analysis described in his testimony disposes of Haddock’s contention on appeal that the procedures used in the instant case were not established.
Blood Spatter Evidence
Haddock’s final evidentiary contention concerns the qualifications of crime scene investigator William L. Chapin, who was testifying for the first time as an expert on blood spatter interpreta tions. Haddock does not challenge the admissibility of blood spatter evidence generally. Haddock concedes that Chapin is “potentially an expert in several fields” related to crime scene investigation, but he contends that “blood spatter interpretation is simply not one of those fields.”
Expert opinion testimony is allowed on matters “within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b). Chapin, who was employed at the Johnson County Sheriff’s Office in the Criminalistics Laboratory, testified that he has degrees in biology and chemistry from Sterling College in Kansas. He has 20 years of experience in many facets of criminal investigation, such as laboratory analysis, crime scene analysis, and evidence collection, including 15 years in Johnson County. He has testified from 15 to 30 times regarding crime scene analysis, and over 600 times concerning various aspects of forensic work.
With respect to blood spatter interpretation, Chapin attended a one-week intensive course on blood spatter evidence taught by national experts in the field. There were approximately 12 to 15 people in die class. Chapin spent the entire week conducting experiments and learning about the different kinds of blood spatters and how they are created. He stated he did “some type of [blood spatter] analysis” in an average of 10 cases per year. Here, Chapin spent approximately 10 hours at the Haddock home inspecting and analyzing evidence of blood spatters.
Chapin’s qualifications are comparable to those other reviewing courts have found sufficient for blood spatter experts. See, e.g., State v. Moore, 458 N.W.2d 90 (Minn. 1990) (serologist; no formal training or education in blood spatter evidence; had done 30 to 35 blood spatter interpretations); State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991) (detective; never testified as blood spatter expert; attended one-day seminar in blood spatter analysis). We find no abuse of discretion in allowing Chapin to give blood spatter testimony.
Lack of Instruction on Voluntary Manslaughter
Haddock contends that the trial court erred in rejecting his re quested jury instruction for the lesser offense of voluntary manslaughter. The jury received instructions for first-degree and second-degree murder.
The rules concerning the necessity of lesser included offense instructions are well established and need not be repeated. See State v. McClanahan, 254 Kan. 104, Syl. ¶¶ 1, 2, 865 P.2d 1021 (1993). 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. Haddock argues that there was sufficient circumstantial evidence to support an instruction for voluntary manslaughter.
The State does not dispute that an altercation between Haddock and his wife preceded the killing. The State argued that very fact in closing argument. Mere evidence of an altercation, however, does not alone support a finding of sufficient provocation. We have found the evidence insufficient for a voluntary manslaughter instruction in spite of evidence of some kind of altercation between the defendant and victim just before the killing. See, e.g., State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 (1978); State v. Stafford, 213 Kan. 152, 166, 515 P.2d.769 (1973) (in dicta); State v. McDermott, 202 Kan. 399, 401-03, 449 P.2d 545, cert. denied 396 U.S. 912 (1969).
In State v. Coleman, 253 Kan. 335, 352-54, 856 P.2d 121 (1993), we clarified prior cases in holding that evidence supporting a lesser included offense instruction may be presented either by the defendant or the State. In the case at bar, however, neither Haddock nor the State presented evidence of precisely what provoked or preceded Barbara’s murder. The person who could have supplied the missing evidence of provocation in this case was the last persoft to see her alive. Haddock, however, denied having any kind of altercation with his wife.
The State argues that State v. Pearson, 234 Kan. 906, 678 P.2d 605 (1984), is analogous, and we agree. Pearson was convicted of second-degree murder of a young woman, whose body was later found in a field outside Wichita. Pearson, who was the last person seen with the victim, denied being with her when she was killed. Other physical evidence strongly linked him to the murder. On appeal, he contended that he should have received a voluntary-manslaughter instruction because the evidence reasonably supported an inference that the victim and her killer went to the field to engage in sexual activity but had a fight, during which the fatal blow was struck. We rejected his contention, noting that neither the State nor the defendant presented any evidence supporting voluntary manslaughter. 234 Kan. at 918-19. We find no error in refusing to give an instruction on voluntary manslaughter.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a ruling of the trial court refusing to confirm a sale of real estate following foreclosure of a mortgage.
In his abstract appellant has made reference to some' prior sales and asserted reasons why they were either set aside or not confirmed, on a theory they have some evidentiary value. Appellee has filed a supplemental abstract taking issue as to some of the asserted reasons. Appellant has filed a motion to strike this supplemental abstract. We shall not discuss or attempt to resolve the conflicts, for the previous sales are not involved in the present appeal. The supplemental abstract, however, is of assistance to the court in following the history of matters leading up to the present appeal, and the motion to strike is denied.
On March 25, 1925, judgment was rendered in favor of the plaintiff for $2,741.66 and for the foreclosure of a mortgage on the west half of section 17, township 20, range 28, west, in Lane county, Kansas. Shortly thereafter an order of sale was issued and the real estate sold to the appellant at sheriff's sale. It is not entirely clear whether the trial court refused confirmation or later set aside the sale, but in any event no appeal was taken. At later dates, under general executions and not under orders of sale, two sales of the mortgaged real estate and other real estate were had. Thereafter, under proceedings not made clear from the abstracts, an intervention was permitted, the sales set aside and on April 19,1940, a new judgment was rendered in favor of plaintiff for $4,130.70. On the same day an order of sale issued and the mortgaged real estate was sold to the plaintiff for $886.32. The trial court refused to confirm this sale. On August 12, 1940, another order of- sale issued, and at a sheriff’s sale held September 19, 1940, the land was sold to plaintiff for $800. A hearing was had on motion to confirm this sale, at which evidence was received. Various witnesses fixed the value of the land from $1.25 to $15 per acre. The judge of the trial court was requésted by counsel for the parties to view the land, and did so, and thereafter, on December 13, 1940, the trial court filed a memorandum decision on the motion to confirm. We shall not review that decision at length. The court concluded the land was reasonably worth somewhere near $2,500 and that a sale at $800 “would be grossly inadequate and inequitable, and should not be confirmed” and that under all the circumstances it should not confirm a sale at a bid under $2,400—and it ruled accordingly.
From this last ruling the plaintiff appeals. He first contends the trial court abused its discretion in refusing to confirm the sale, and in support relies principally upon Liberty Savings & Loan Ass’n v. Hanson, 145 Kan. 174, 64 P. 2d 609, wherein it was held that where there was no substantial disparity between the actual value of the property and the price bid at the sheriff’s sale, the judgment creditor has an absolute right to have the sale confirmed. There the only evidence of value was the property was worth $750 to $850 and the bid at the sale was $900, which was less than the judgment. We adhere to the holding in that case, but on the facts it cannot control the case at bar. We would have to weigh the evidence offered in the trial court, substitute our judgment for that of the trial court and conclude the land was worth substantially the amount of the bid, in order to make the rule of the Hanson case apply. Under well-recognized rules of appellate practice we may not substitute our judgment for that of the trial court on the weight to be given conflicting evidence. While some witnesses stated the land was worth $1.25 per acre or $400 for the tract, as many or more stated it was worth $15 per acre or $4,800, while others fixed varying values be tween the two extremes. We would be warranted no more in relying on the lowest placed value to find abuse of discretion in refusing to confirm than we would in relying on the highest value were the complaint the trial court had abused discretion in confirming a sale.
The rule is that confirmation of a sale of property in foreclosure ordinarily rests in the sound discretion of the trial court. See Aetna Building & Loan Ass’n v. Reverend, 144 Kan. 307, 310, 58 P. 2d 1138; Federal Farm Mortgage Corp. v. Rupp, 150 Kan. 605, 95 P. 2d 310, and cases cited. Under the showing made we may not say the trial court abuse.d its discretion or that it committed error in refusing to confirm the sale.
Appellant further contends the trial court had no power to refuse confirmation for- mere inadequacy of price. The general tenor of appellant’s argument is that early in the state’s history the only power of the court to refuse confirmation of a sale in foreclosure was because it was not in conformity to law; that the effect of Laws 1893, ch. 109, § 26, now appearing as G. S. 1935, 60-3463, under which the court must find the proceedings “in conformity with law and equity,” was to impose on the court “the same powers and responsibilities that rested upon the chancellor of the old court of equity” (Norris v. Evans, 102 Kan. 583, 171 Pac. 606); that unless the inadequacy was so great as to shock the conscience it would not justify even a court of' equity in refusing confirmation (Bank v. Murray, 84 Kan. 524, 114 Pac. 847); and that there must be some circumstance in addition to inadequacy of price to warrant the court in withholding confirmation (Insurance Co. v. Stegink, 106 Kan. 730, 189 Pac. 965). We shall not pursue the matter fully nor discuss other of the decisions cited by appellant. We do note his contention that the note and mortgage in question were given prior to the enactment of G. S. 1935, 60-3463a, and that the statute should not be given a retroactive effect on his contract rights. In Insurance Co. v. Stegink, supra, a review is made of the statutory provisions pertaining to confirmation of sale and some of our decisions are reviewed,-it being said the old rule, that mere inadequacy of price was insufficient to withhold confirmation, had been largely abrogated by the later rule of the code which charges the trial court before confirming a sale to determine not only that the proceedings are regular, but in conformity with law and equity, and—
“It seems to this court that the inadequacy of price in this case was comparatively great-; and that the trial court was justified in setting the sale aside as inequitable. Certainly, at least, no abuse of discretion is disclosed.” (p. 733.)
The question of inadequacy of price received attention in Kaw Valley State Bank v. Chumos, 138 Kan. 714, 27 P. 2d 244, where it vjas said:
“The tradition of inadequacy of price as a matter of legality only has colored the language of some of the opinions of this court in decisions under the amended statute, but when the decisions themselves are carefully scrutinized it will be found that inadequacy of price alone without addition of extraneous factors of equitable cognizance may make a sale inequitable.” (p. 717.)
In that case confirmation by the trial court was reversed, without taking into account the statute now appearing as G. S. 1935, 60-3463a mentioned above. See, also, Federal Farm Mortgage Corp. v. Rupp, 150 Kan. 605, 609, 95 P. 2d 310. The appellant’s contention the trial court had no power to refuse to confirm the sale for mere inadequacy of price cannot be sustained.
Finally, appellant contends that the trial court’s refusal to confirm for trifling inadequacy of price violates his right to due process. In support he cites Pewabic Mining Company v. Mason, 145 U. S. 349, 36 L. Ed. 732,12 S. Ct. 887, wherein it was held that a sale in equity should not be set aside for trifling causes or matters to which the complaining party might have attended, and to Bank v. Murray, 84 Kan. 524, 114 Pac. 847, where reference is made to the first-mentioned case. The premise the inadequacy of price is trifling in amount is not sustained by the record, which is that the value of the land is three times the amount of the bid for which it was sold at the sheriff’s sale. There is no occasion to discuss the matter at more length, the contention cannot be sustained.
It has not been made to appear the trial court erred in refusing to confirm the sale, and the ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
Davis, J:
Defendant Artis Swafford was convicted of felony murder and aggravated robbery. His convictions were affirmed in our original opinion filed June 13, 1995. State v. Swafford, 257 Kan. 1023, 897 P.2d 1027 (1995). On June 30, 1995, the defendant timely filed a motion for rehearing pursuant to Supreme Court Rule 7.06 (1995 Kan. Ct. R. Annot. 43).
Defendant Swafford was tried by jury in a joint trial with codefendants Juan Anthony and Joel D. Butler. During the trial, statements made by Anthony were introduced into evidence after being redacted to exclude the names of Swafford and Butler. We noted in the original opinion that “[wjhether editing a confession or statement by excision will avoid a violation of the Bruton [v. United States, 391 U.S. 123, 137,20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968),] rule must be determined on a case-by-case basis.” State v. Swafford, 257 Kan. at 1038. However, we stated:
“In this case ... we are unable to determine whether the excised statement explicitly suggested the participation of Swafford because neither the excised version of the tape nor the excised transcript of the tape is included in the record on appeal. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, a reviewing court presumes that the action of the trial court was proper. [Citation omitted].” 257 Kan. at 1038-39.
After our decision in this case, the defendant filed a motion for 'rehearing asking that this court reconsider the question of Anthony’s redacted statement on its merits. Defendant also filed a motion to add to the record State’s exhibits number 84 (videotape), 85 (audiotape), and 86 (redacted transcript of Anthony’s statement). In her motion for rehearing, counsel acknowledges that it was an oversight not to insure that the exhibits were a part of the record on appeal but contends that the oversight was reasonable. She, along with counsel for the State and Butler’s counsel, was under the impression that Exhibit 86 had been made a part of the record on appeal..
There was confusion concerning Exhibit 86. In support of the motion to add to the record on appeal, counsel attached an affidavit of the Saline County deputy district court clerk. The deputy clerk acknowledged that it was the policy of the clerk to send all paper exhibits to the appellate courts when sending the record forward. Had this policy been implemented, the redacted transcript of Anthony’s statement would have been included in the record on appeal.
It is apparent that counsel for defendant, as well as counsel for Butler and counsel for the State, relied upon the original record in preparing for this appeal. At that time, the missing exhibits were included in the record. These exhibits were used by all parties and referred to by all parties in preparation of their briefs on appeal.
We decided this case on June 13, 1995. The deputy clerk in her affidavit noted that as of June 29, 1995, the clerk’s office had not been able to locate the redacted transcript of codefendant Anthony’s statement. Apparently this exhibit was mailed to a party by the clerk’s office and later returned by that party to the clerk’s office. In response to the defendant’s motion for rehearing and his request for additions to the appellate record, this court on August 30,1995, entered the following order:
“The Clerk of the Saline District Court is hereby ordered to transmit exhibit 84 (video tape), exhibit 85 (audio tape), and exhibit 86 (transcript) to the Clerk of the Appellate Courts.”
We adhere to the well-established rule that an appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails. However, because the record used by the parties to prepare their appeal to this court contained the missing exhibits and because of the real confusion based on the clerk’s actions in this case, we now grant the defendant’s motion for additions to the appellate record. Exhibit 84 (videotape), Exhibit 85 (audiotape), and Exhibit 86 (transcript) all relating to Anthony’s statement ad mitted into evidence in the joint trial, are hereby made a part of the appellate record in this case.
In the motion for rehearing, the defendant’s counsel argued that this court was provided with sufficient facts to allow it to review the merits of the defendant’s contention that the admission of the redacted statement violated Bruton, 391 U.S. 123. We do not deem it necessary to hear further argument or to grant appellant additional time to respond. Counsel correctly points out that the issue was briefed by both parties and argued before this court.
The issue we now address is the same one involving the missing exhibit in our original opinion. As noted in our original opinion:
“Swafford . . . complains of the admission of the excised videotape of Anthony’s statements to Lamar Williams. He argues that even though his name is edited from the videotape, the tape still clearly implicates him in the crime. The State, on the other hand, argues that because Swafford did not object to the playing of the tape, he has waived consideration of this issue.” 257 Kan. at 1038.
The Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of a criminal defendant to be confronted with the witnesses against the defendant, including the right to cross-examine those witnesses. Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). An accused’s right to confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial. Bruton, 391 U.S. at 137; State v. Rodriguez, 226 Kan. 558, Syl. ¶ 1, 601 P.2d 686 (1979). However, the extrajudicial statement of a nontestifying codefendant may be admitted into evidence if it is redacted to eliminate inculpatory references to the other defendant unless the redaction distorts the statement. State v. Rakestraw, 255 Kan. 35, Syl. ¶ 2, 871 P.2d 1274 (1994).
We have held that redaction of a confession is proper if any suggestion of a codefendant’s involvement in the crime charged can be eliminated from the statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. State v. Hutchison, 228 Kan. 279, 282, 615 P.2d 138 (1980). As we stated in State v. Porter, Green & Smith, 228 Kan. 345, 350, 615 P.2d 146 (1980):
“It is unreasonable to assume that in all cases the mere deletion of a defendant’s name from a codefendant’s incriminating statement is going to protect the complaining defendant from being implicated in the minds of the juiy, when the statement refers to other participants in the crime and the other defendants are sitting at the same counsel table charged with the same crimes.”
In this case, Anthony’s statement constituted a confession to the crimes charged. He admitted killing the night clerk at the Mid-America Inn in Salina and taking money from the motel safe during the early morning hours of August 10,1992. While in his statement he claimed sole credit for killing the night clerk, he mentions the names of the defendant and Butler as participants with him in the crimes charged. Prior to trial, the defendant and Butler had moved for separate trials based in large part on Anthony’s statement. The motion was denied based upon the court’s ruling that it would handle this problem by redaction of Anthony s statement.
The videotape played before the jury was a typed transcript of the conversation (confession) between codefendant Anthony and Lamar Williams with the names of the defendant and Buder redacted. The text was in white lettering against a blue background. At the same time the jury was viewing the video transcript, an audio recording of the conversation was played to the jury. While the State possessed a videotape of the Lamar Williams-Anthony conversation, its quality was poor and this video was not shown to the jury.
In Swafford, 257 Kan. at 1039 we noted:
“At trial, Swafford made no objection to the admission of the excised audiotape and videotape, and the jury was specifically instructed not to consider Anthony’s statement against Swafford. While Swafford did object to the transcript of the excised tape, it was only because he felt that the original tape was unclear in some areas and doubted the accuracy of the transcript.”
In his motion for rehearing, the defendant contends that the record supports a conclusion that he objected at trial to the admission of Anthony’s statement on the basis of Bruton. At the very least, he contends, even if the issue was raised for the first time on appeal, under our decision of State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982), the interests of justice warrant review.
The record in this case is clear. The defendant did not object to the admission of Anthony’s confession at trial on the grounds raised on appeal or in his motion for rehearing. Moreover, the defendant did not object to the method of redaction used. The names of the defendant and Butler were deleted from Anthony’s confession, but blank spaces with underlining were left. This method of redaction chosen in this case presents a serious constitutional problem under the Sixth Amendment to the United States Constitution.
In the case of United States v. Lane, 883 F.2d 1484, 1501 (10th Cir. 1989), the court found that there was no Bruton error based primarily on the fact that the defendant had stipulated to the specific form of redaction. In addition, the court added that the defendant failed to object to the admission of the statement at trial. Thus, after concluding that the admission of the statement did not constitute plain error, the court affirmed. While the failure to object to the form of redaction or stipulating to the form of redaction may not preclude a claim of error on appeal in this case, the record must be viewed with this fact in mind.
Counsel suggests that because the alleged error is one of constitutional magnitude, we should, in the interest of justice, disregard not only the failure to object to the admission of die confession into evidence, but also ignore the failure of the defendant to object to the method of redaction. We note that had an objection been made at the time, further action could have been taken to explore other forms of redaction which would have been less suggestive with reference to the ultimate question of whether the defendant participated in the crimes charged. Under the circumstances of this case, it may very well be said that the defendant waived his constitutional right of confrontation based on his failure to object to the admission of Anthony’s confession in its redacted form and 'further based on his failure to object to the form of redaction. However, because we deal with the defendant’s Sixth Amendment right of confrontation, a fundamental consideration in determining whether the defendant received a fair trial, we elect to resolve the question on its merits.
Bruton, decided in 1968, held that in a joint trial, the admission of a nontestifying codefendant’s extrajudicial statement implicating the defendant violates the defendant’s rights under the Confrontation Clause even if the judge instructs the juiy to disregard the statement in determining the defendant’s guilt or innocence. 391 U.S. at 126. (See Williams, The Honest Consequences of Bruton and the Dishonest Consequences of the Redaction Exception, 28 Crim. L. Bull. 307, for a comprehensive treatment of the redaction problem under Bruton). The Supreme Court concluded that the nature of some evidence is so “powerfully incriminating” that it overrules the prevailing presumption that a jury will follow instructions:
“[S]ome contexts in which the risk that the jmy will not, or cannot, follow instructions is so great and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations omitted.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36.
While the conversation between Lamar Williams and Anthony is not a typical post-arrest confession, Bruton applies to any extrajudicial statement by a nontestifying codefendant. Bruton applies to a statement made in a noncustodial setting as well to a statement made to other coconspirators if, as in this case, such statement is not made during the life of, and in furtherance of, the conspiracy. When the statement incriminates the defendant and the defendant is not able to cross-examine the declarant, the admission of the statement violates the Confrontation Clause. See United States v. Avery, 760 F.2d 1219, 1223 (11th Cir. 1985), cert. denied 474 U.S. 1055 (1986).
In the case of Richardson v. Marsh, 481 U.S. 200, the United States Supreme Court acknowledged that by redacting an incriminating statement made by a defendant, the government may be able to convert a statement from one that violates the Bruton rule to one that passes the Bruton test. The Court expressly authorized redaction as an exception to Bruton, holding that the admission of a nontestifying codefendant’s statement into evidence at trial does not violate the Confrontation Clause if the court gives a proper limiting instruction and redacts the codefendant’s statement to eliminate not only the defendant’s name, but any reference to his or her existence. 481 U.S. at 211. The Court further held that even though such statement incriminates the defendant when linked with other evidence admitted during the trial, this inferential incrimination does not make an otherwise admissible statement inadmissible so long as the statement is not incriminating on its face. See 481 U.S. at 208-11.
Although we believe that the resolution of the question is a close one, we conclude for the reasons set forth below that the admission of Anthony’s confession into evidence under the facts of this case violated the constitutional principles set forth in United States v. Bruton. The question is a close one because Anthony’s statement, standing alone, does not appear to directly incriminate the complaining defendant and Butler. On its face, the statement removes the names of the defendant and Butler. However, the method of redaction in this case, that is, by simply leaving a blank space in place of the names removed, makes it obvious to the jury that the statement was redacted and that the nontestifying defendant knows the true identity of the person or persons referenced in the statement.
The object of redaction is not only to eliminate the name of the defendant, but also to eliminate any reference to his or her existence. See Richardson v. Marsh, 481 U.S. at 211. While there may be an argument that the method chosen in this case eliminated any reference to the defendant’s and Butler’s existence, the blank spaces with underlining suggested that others participated in the crimes charged. All three were tried jointly for the crimes charged. Without the benefit of any other evidence, the blanks suggested to the jury that the others were the defendant and Butler. For these reasons we conclude that Bruton was violated.
Had another method of redaction been chosen, the result might have been different. For example, had the statement been redacted to remove the defendant’s and Butler’s names and all reference to their existence by removing a sentence or paragraph where their names appear so as not to leave blanks, the result might have been different. The question to be asked in each case is whether the redacted statement admitted eliminated not only the defendant’s name, but also any reference to his or her existence. If the codefendant’s redacted statement, standing alone without consideration of any other evidence, does not directly incriminate the complaining defendant, Bruton is not violated even when other admissible evidence indirectly implicates the defendant.
Our conclusion that Bruton was violated does not mandate reversal, for a Bruton violation is subject to the harmless error rule of Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). See Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969). In Schneble v. Florida, 405 U.S. 427, 430, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972), the United States Supreme Court stated: “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” This court has said that an error of constitutional magnitude, though serious, may be held harmless if the appellate court is willing to declare beyond a reasonable doubt it had little, if any, likelihood of changing the result of the trial. State v. Johnson-Howell, 255 Kan. 928, 944-45, 881 P.2d 1288 (1994).
Anthony’s conversation with Lamar Williams amounts to a confession to the robbery and the brutal murder of a motel night clerk. Anthony makes it clear in his statement that he and he alone murdered the night clerk. The blank spaces and sentences in which they appear suggest that others participated in the crimes charged. The question in our harmless error analysis is, then, what other evidence in the record establishes that the defendant and Butler participated in the crimes charged.
The following evidence, properly admitted during trial, bears upon the question of the defendant’s participation in the crimes charged. The jury was informed through the testimony of Renee Greer that on the night the robbery and murder were committed, Anthony told her that he, Butler, and Swafford were going to rob a motel and kill the night clerk by shoving a sharp object down the night clerk’s throat. Greer testified that Anthony showed her the key they were going to use to get into the motel. Before Anthony left for the robbery, she saw some walkie-talkies and Anthony showed her a sharp object which looked like a nail file. However, she testified that the object was not the letter opener found in the victim’s body.
Greer’s conversation with Anthony occurred at approximately 2:30 a.m. on August 10, 1992, the morning of the robbery and murder. Witnesses for the State established that Oliver Bigler, the night clerk at the Mid-America Inn, was alive at 2 a.m. The motel was robbed and Bigler was murdered during the early morning hours of August 10, 1992. The police arrived at the scene at 5:30 a.m., discovering the robbery and Bigler’s murder. An autopsy performed on Bigler’s body indicated that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations including a stab wound in the right ear canal.
The morning after the robbery and murder, the police searched Anthony’s residence and found a battery-operated walkie-talkie inside an empty dog food bag in a trash can. The antenna of the walkietalkie had been broken off. The walkie-talkie’s casing was broken and there were hair and carpet fibers on it. An expert testified that the antenna piece found at the crime scene matched the piece of the antenna found on the walkie-talkie in Anthony s trash can.
Prior to the robbery and murder, Anthony had a conversation with police informant Lamar Williams. Williams testified that Anthony asked him to participate in the robbery. Williams was acquainted with the defendant and Butler. Anthony told Williams he was going to rob the motel, that Swafford was going to knock out the clerk, and that he, Anthony, was going to slit the clerk’s throat.
Williams also talked with the defendant about Bigler’s murder. When Williams asked the defendant about the murder, the defendant said, “He was old, he was going to die anyway.” When Williams told the defendant that Anthony had told him all about the murder, the defendant said, “Juan talked too much.” In discussing the murder with Williams, the defendant also stated, “Man, we went up to that motherfucker — and the dude wouldn’t give up so we had to fuck him up.”
The same motel had been the subject of two previous robberies. The evidence in the joint trial suggested that the defendant was the one who on one occasion attempted to rob the motel but was unsuccessful because the cash register could not be opened. On another occasion the robbery was successful. On both of these occasions the night clerk on duty was alone and the person entering had a key to the motel office. The clerk on duty identified the defendant at trial as the robber.
After each incident, the defendant appeared at Anthony’s house and made reference to the clerk he robbed by asking how “the bitch” was. It was after the first attempt that Jennifer Harmon, a girl friend of Anthony’s, told Anthony that the “room number” button had to be used to open the cash register. At the next robbery the robber had no difficulty opening the cash register.
Prior to the above two incidents, Harmon gave Anthony and Butler a ride to Junction City. On the trip, Anthony asked her to get him a copy of the keys to the motel. Butler also encouraged her to get the key for Anthony. Eventually, she agreed to leave the key where Anthony could pick it up and copy it. Chad Johnson, a worker at Aleo, testified that during the summer of 1992, he had copied a key for Butler. A key was also used to gain entiy to the motel on the night of the murder and robbery. Evidence suggested that the key used to gain entrance to the motel was the one Anthony showed to Renee Greer before leaving his residence at 2:30 the morning of the robbery, and the same one copied by Butler and used by the defendant during the two previous robberies.
We conclude that the admissible evidence other than Anthony’s confession, including two direct statements that the defendant participated in the murder and the robbery, overwhelmingly establish that the defendant was a participant. The defendant’s own statements to Williams clearly demonstrates that he participated with Anthony and Butler in the murder and robbery. Under these circumstances, we conclude that the admission of Anthony’s confession was harmless error beyond a reasonable doubt. By this opinion we modify our previous opinion in State v. Swafford, 257 Kan. 1023, 897 P.2d 1027 (1995), and affirm.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by the defendant, Quilan Z. Jones, from his jury conviction of one count of first-degree murder. He was sentenced to life imprisonment.
On September 8, 1993, at about 5:00 p.m., Roger Halley was struck by a bullet as he was driving on Central, a major street in Wichita. He died as a result of the gunshot wound. The bullet removed from Halley’s body was fired from a .380 semiautomatic pistol, which was found in the attic of defendant’s residence, bearing his fingerprint. Six spent cartridge casings were found in an alley across Central from a Coastal Mart gasoline station and convenience store in the vicinity in which Halley was shot. The casings found in the alley also were fired from the gun found in defendant’s attic. One spent cartridge casing which had not been fired from that gun was found in the Coastal Mart parking lot.
The 15-year-old defendant went to the Coastal Mart that afternoon to get some chips and soda pop. He was a member of a gang and was dressed in its identifying color. While defendant was in the convenience store, members of a rival gang entered. Defendant later told a friend that they said to him, “What’s up, Cuz?” There was testimony that the greeting directed to a member of a rival gang was disrespectful and “a good way to get injured.” There was substantial evidence of ongoing violent and deadly conflict between defendant’s gang and this rival gang.
A short time later defendant talked to Dale Caine, who was a fellow gang member with defendant in September 1993, in front of a house near the Coastal Mart. Defendant was carrying a gun, a .380, and he said that he shot at some members of a rival gang. He said that they were harassing him in the store, but he did not shoot at them in the store because he was being watched. Then when he was leaving they drove up and showed him they had a gun. Defendant said he crossed the street, looked over at the rival gang members, and started shooting. The rivals returned fire; Caine thought he remembered defendant saying that they shot back one time.
In a taped interview with police, defendant said that while he was in the convenience store a rival gang member came in and made hand signals at him. Defendant “flipped him off.” There were two other rival gang members in a car outside. After he left the store and was in the alley across the street, their car was still in the Coastal Mart parking lot. The driver got out of the car and shot at defendant. Before he started firing, defendant put his soda pop down and then ran back down the alley. Defendant said that he fired five times. About the exchange of shots with the rival gang member, defendant said: “He was trying to hit me, I was tiying to hit him.”
On appeal, defendant raises two issues. First, he contends the district court erroneously instructed the jury on the transferred intent theory of intentional, premeditated murder. In pertinent part, the information against defendant states:
“[0]n or about the 8th day of September, 1993, A.D., one QUILAN Z. JONES, did then and there unlawfully, intentionally, kill a human being, to-wit: Roger E. Halley, intentionally and with premeditation by shooting him, inflicting injuries from which the said Roger E. Halley did die on September 8, 1993.”
In addition to being instructed on the elements of intentional, premeditated first-degree murder, the jury was instructed as follows: “When a homicidal act is directed against one other than the person killed, the responsibility of the actor is exactly as it would have been had the act been completed against the intended victim.” Defense counsel objected to this instruction on the ground that the evidence did not support it.
On appeal, defendant takes a different approach. Because the only evidence was that Halley was not the intended victim, defendant argues that the only theory of premeditated first-degree murder supported by the evidence is transferred intent. The problem which he identifies is that transferred intent was not spelled out in the information. He argues that the case should not have been submitted on transferred intent theory because it was not expressly charged, and that the information was broadened by the district court’s instruction on transferred intent. Because trial counsel objected to the transferred intent instruction only on evidentiary grounds, the State complains that defendant is raising a new claim on appeal. Defendant does not address the issue of his raising a new claim on appeal. With regard to the scope of the court’s review, he states only that review of a legal conclusion is unlimited. He never expressly states that the information is defective, nor does he allude to the well-known rules for appellate review of a defect in the charging document. See State v. Hall, 246 Kan. 728, Syl. ¶ ¶ 12-13, 793 P.2d 737 (1990). For that matter, Count I of the information charges premeditated first-degree murder according to the statute and is not defective in that way. The majority of cases cited by defendant involve the principle that instructions in a criminal case should conform to the charges in the information rather than broaden them. Although not clear, the issue raised on appeal appears to be an error in instructions. That is how it is treated in the cases relied on by defendant. In the present case, there was no objection to the instruction itself. This court, therefore, will review the matter for clear error. “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.” State v. Deavers, 252 Kan. 149, Syl. ¶ 4, 843 P.2d 695 (1992).
Defendant does not seem to have settled on the precise nature of his complaint. As a result, some of his arguments seem more relevant to an alleged defect in the information than to an alleged error in instructions. Defendant contends that he was prejudiced because the information did not fully apprise him of the charge. He asserts: “The State’s use of the doctrine of transferred intent subjected Mr. Jones to an entirely different set of facts than he would have faced under the crime charged, the premeditated murder of Rob [sic] Halley.” This assertion is at odds with other statements made in defendant’s brief.
First, defendant recognizes that transferred intent is an accepted principle in the courts of this state. In State v. Moffitt, 199 Kan. 514, 535, 431 P.2d 879 (1967), overruled on other grounds State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980), this court stated:
“The fact that the homicidal act was directed against one other than the person killed does not reheve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault followed upon the intended victim instead of another. (1 Wharton’s Criminal Law and Procedure, Homicide, $193, p. 438.) The same rule applies where the felony murder rule is asserted to sustain a conviction for murder in the first degree or felonious assault.”
In State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980), the Court of Appeals quoted a catchy phrase from an encyclopedia:
“ ‘Under this rule, the fact that the bystander was MEed instead of the victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished. The intent is transferred to tire person whose death has been caused, or as sometimes expressed, the malice or intent foEows the buEet.’ 40 Am. Jur. 2d, Homicide § 11, pp. 302-303.” 4 Kan. App. 2d at 561.
Second, defendant states that the only theory of premeditated murder which is supported by the evidence is transferred intent, and he states that it is undisputed that Halley was not the intended target of the bullet. He was well aware of the State’s case against him. In these circumstances, defendant’s claim that the State’s use of the doctrine of transferred intent subjected him to an entirely different set of facts than he would have faced under the crime charged is not credible. The requisite intent for premeditated murder may be transferred, as a matter of law, and in the factual circumstances of this case, that intent must be transferred. Neither should have been a surprise to defendant.
For the same reasons, defendant’s claim that his trial strategy might have differed if the information had spelled out transferred intent has no merit. In addition, the example given in his brief of a possible difference in trial strategy concerns instructions rather than trial strategy. At the time of the instruction conference, defense counsel had heard the evidence, and that, rather than the information, should have been the basis for requested instructions.
Of the Kansas cases cited by defendant, the only one he discusses is State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988). Aggravated kidnapping was among Redford’s convictions. The information charged that he took the victim by threat or force with the intent to hold her to inflict bodily harm on or to terrorize her and that he did inflict bodily harm on her. The trial court added another type of intent. The jury was instructed that to prove the charge of aggravated kidnapping, it had to be shown that Redford took the victim by threat or force to facilitate the commission of a crime or to inflict bodily injury or to terrorize her and that he did inflict bodily injury on her. 242 Kan. at 669. Redford argued that the instruction improperly broadened the information. The court stated:
“The general rule is that instructions should follow the charges contained in the information and should not be broader than the information. State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984).
“The facts in this case, however, are similar to those in Turbeville, in which we held the defendant’s substantial rights were not prejudiced by violation of the rule. In Turbeville, die trial court added the alternative intents ‘to terrorize the victim or another’ or ‘to facilitate flight’ to the aggravated kidnapping instruction. We held because this language was taken directly from the statute and was supported by the evidence presented at trial, the error was harmless. The broadening of die instruction did not charge an additional crime but only stated several different kinds of intent by which aggravated kidnapping could be committed. The charge of aggravated kidnapping under the statute fully advised the defendant of the nature of the charges against him and did not mislead him in preparing his defense.
“It is apparent the court added an additional intent under the statute as in Turbeville. As in Turbeville, there was evidence supporting the additional theory that Redford kidnapped Donna with intent to facilitate die commission of the crime of rape and sodomy. We hold there was error, but it was harmless under the facts of this case.” 242 Kan. at 670-71.
In the present case, as in Redford, there was evidence supporting the intent theory which was stated in the instruction. Here, there was evidence that defendant intended to kill the rival gang member or members but killed Halley instead. The contention that defendant was not fully apprised of the charges already has been discussed and dismissed.
Defendant also argues that his case is different because transferred intent is not mentioned in the first-degree murder statute. He seems to be suggesting that what was harmless error in Redford cannot be harmless in this case. We do not agree. As discussed in Redford, the statute sets out four distinctive types of intent for which the taking of a person constitutes kidnapping. An information which charged the taking of a person without specifying at least one of the types of intent would not charge the crime of kidnapping because it is the intent which transforms what otherwise might be lawful conduct into a criminal offense. By the same token, an information which charged the taking of a person for ransom, for example, might not fairly inform the defendant of the offense charged if the evidence against him showed another type of intent. Thus, it was error for the district court judge to instruct on a type of intent which had not been specified in the information against Redford, but, because the evidence supported the added theory, the error was harmless. In contrast, the pertinent portion of the statute for intentional, premeditated murder describes criminal conduct, and an information couched in the terms of the statute informs the defendant of the charge. The transferred intent theory is an established principle in Kansas criminal law so that counsel for any defendant charged with premeditated murder in the circumstances of the present case should expect it to apply. Those circumstances are that defendant admits shooting at a rival gang member or members with a certain gun and a passerby died from injuries caused by a bullet shot from that gun. If nothing else in the information revealed the precise nature of the offense, the alternative charge, which states that defendant shot and killed Halley while attempting to commit first-degree murder, surely did. The only reasonable construction of the alternative charge is that defendant killed Halley when trying to kill someone else. Thus, defendant’s intention to kill one person is transferred to the victim under established law.
Defendant states that there are no Kansas cases on point and discusses two out-of-state cases. We find neither case to be on point. He also cites State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985), for the proposition that he “could not be convicted of premeditated first degree murder based upon transferred intent where that intent was not charged.” He likens a charge of transferred intent to a charge of felony murder. There is nothing in Wise to support either the contention or the comparison. Wise was charged with both premeditated murder and felony murder for the same killing. The jury acquitted him of the first and convicted him of felony murder. The court suggested that the better practice would be to charge in the alternative but concluded that there was no error. 237 Kan. at 120-21.
In the present case, if giving the instruction were error, it would be harmless. However, we conclude the instruction was not erroneous, and the district court did not err in instructing the jury on transferred intent.
We next consider if the attempted first-degree murder of a rival gang member or members can be the underlying felony for the felony-murder charge for the death of Roger Halley. Defendant was charged with killing Halley intentionally and with premeditation or, in the alternative, killing Halley while attempting to commit an inherently dangerous felony, first-degree murder. With regard to the first charge, the statute in effect at the time provided that “[mjurder in the first degree is the killing of a human being committed . . . [intentionally and with premeditation.” K.S.A. 1993 Supp. 21-3401(a). With regard to the alternative charge, K.S.A. 1993 Supp. 21-3401(b) provided that “[mjurder in the first degree is the killing of a human being committed ... in the . . . attempt to commit ... an inherently dangerous felony as defined in K.S.A. 1993 Supp. 21-3436.” K.S.A. 1993 Supp. 21-3436(b) provided in pertinent part that murder in the first degree committed intentionally and with premeditation
"shall be deemed an inherently dangerous felony only when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 ... as to not be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 . . . .”
Both theories were submitted for the jury’s consideration. In addition to being instructed on the elements of the offenses, the jurors were told:
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed Roger E. Halley and that such killing was done while attempting to commit murder in the first degree or in the alternative by proving beyond a reasonable doubt that die defendant killed Roger E. Halley intentionally and widi premeditation, as fully set out in diese instructions.”
The jury returned a general verdict of guilty of first-degree murder.
On appeal, defendant argues that the offense of attempted intentional and premeditated murder of the rival gang member or members will not support the felony-murder charge. Defense counsel raised this issue at the close of the evidence in the form of a motion to dismiss the felony-murder charge. The motion was denied.
Here, defendant contends that attempted murder of the rival gang member or members is an ingredient of the homicide of Halley and, therefore, is not deemed to be an inherently dangerous felony for the purpose of 21-3436 and 21-3401(b). He states this argument in terms of merger. The court has stated that, when the alleged underlying felony is “an integral part of the homicide,” “it merged therewith and could not serve as the underlying felony.” State v. Lucas, 243 Kan. 462, 470, 759 P.2d 90 (1988), aff’d on rehearing 244 Kan. 193, 767 P.2d 1308 (1989).
The parties generally agree on which Kansas cases pertain to this issue, but they predictably draw different lessons from them. In State v. Fisher, 120 Kan. 226, 243 Pac. 291 (1926), the defendant was charged in the first count with murder in the first degree of John Michael Foley and in the second count with murder of John Michael Foley while perpetrating or attempting to perpetrate an assault with a deadly weapon on members of the Foley family. The deceased was a small boy who was traveling with other members of his family in an automobile without permission across fields owned by the defendant’s father. The boy’s father was driving and stopping periodically to cut fences so that they could proceed. Defendant fired two or three shots at the automobile. He stated that he fired at the tires and the gasoline tank in order to stop the car. On appeal, defendant complained of the instructions on the second count, and the State contended “that if murder is committed in the perpetration or the attempt to perpetrate any other felony, it is murder in the first degree.” 120 Kan. at 230. The court rejected this argument as being much too broad: “The effect of it would be to make any homicide, not excusable or justifiable, which by our statute is defined to be manslaughter in any of the degrees, or murder in the second degree, to constitute murder in the first degree." 120 Kan. at 230. In order to avoid this effect, the elements “ 'constituting the felony must be so distinct from that of the homicide as not to be an ingredient of the homicide indictable there with or convictable thereunder.’ [Citation omitted.]” 120 Kan. at 231.
In State v. Leonard, 248 Kan. 427, 430, 807 P.2d 81 (1991), the defendant was charged with first-degree murder committed while perpetrating aggravated assault on numerous named persons other than the deceased. Huffman died as a result of being run over when Leonard drove his truck toward a group gathered in a parking lot. There was testimony that Leonard had said, without identifying anyone, that he was going to kill “the son of a bitch” and “the son of a bitches.” 248 Kan. at 428-29. The trial court dismissed the felony-murder charge on the ground that it merged with the underlying felony of aggravated assault. The trial court and this court agreed that Fisher controlled the felony-murder issue. 248 Kan. at 430. In each case the defendant’s single act, of shooting at the car in Fisher and of driving the truck into a crowd in Leonard, was the basis for both charges. In State v. Lucas, 243 Kan. 462, Syl. ¶ 4, the court stated: “Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether tire killing is a part of the felony and, therefore, subject to the felony-murder rule.” Referring to this maxim, the court considered the facts of Leonard:
“Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.” 248 Kan. at 431.
Defendant contends that the same conclusion is inescapable in his case. Echoing the court’s statement in Leonard, defendant asserts: His one act of shooting at the rival gang member(s) is the basis for the underlying felony of attempted first-degree murder of the gang member(s) and for the killing of Halley. The one act is not separated in time and distance, and the one act caused the killing. Because there was only one act, the elements of the attempted murder(s) are not distinct from the homicide. He concludes, therefore, that the attempted murder(s) merged with the homicide.
The basis for what this court concluded in Leonard differs somewhat from defendant's premise. Leonard originally was charged with one count of first-degree felony murder and multiple counts of aggravated assault, and the court concluded that the assault charges merged with the murder charge. In the present case, defendant was charged with and tried on only one count. He did not stand trial on charges of both attempted murder of the gang member (s) and murder of Halley.
The distinction which the State urges this court to make is that in- Leonard and Fisher, the victim of the homicide was one of the intended victims of the underlying felony. In the present case, Halley was not an intended victim of the attempted murder(s). The State relies on the three cases also cited by defendant: State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989); State v. Lucas, 243 Kan. 462; and State v. Moffitt, 199 Kan. 514.
■ In Moffitt, the defendant was found guilty of possessing a pistol after conviction of a felony and of using the pistol to commit homicide. Moffitt argued that the felony-murder rule could not be applied to the facts of his case. The court concluded that possession of a pistol after having been convicted of a felony could be the underlying felony for purposes of charging felony murder. In the course of its discussion, the court stated:
“Reference has previously been made to the case of State v. Fisher, supra, which holds in effect that the words ‘other felony’ used in 21-401, supra, refer to some felony collateral to the homicide, and not to those acts of personal violence to the deceased which are necessary and constitute elements of homicide itself. They are merged in it and do not, when consummated, constitute an offense distinct from homicide.” 199 Kan. at 533.
On the basis of this statement, the State contends that “Moffitt stands for the proposition that when the underlying offense constitutes personal violence to the deceased the underlying offense merges with the homicide and a conviction for felony murder will not he.” (Emphasis added.)
The State finds the same proposition in Lucas. In that case, the young victim of child abuse died. Lucas was charged with and convicted of child abuse of the deceased victim and her felony murder based on the underlying felony of child abuse. It was in Lucas that the court set out the rule relied upon in Leonard, having to do with time, distance, and the causal relationship being factors in a determination whether the killing is a part of the underlying felony. Here is a portion of the court’s reasoning on the subject of child abuse of the deceased victim not constituting the underlying felony for felony murder:
“Clearly, abuse of a child as defined by K.S.A. 1987 Supp. 21-3609 is a felony inherently dangerous to human fife and no contrary assertion is made herein. Rather, tire issue herein is whether the underlying or collateral felony is so distinct from the homicide as not to be an ingredient of the homicide. If the underlying felony does not meet this test it is said to merge with the homicide and preclude the application of felony murder. Thus, a crime such as second-degree murder may not serve as the underlying felony supporting first-degree felony murder because second-degree murder is one of the lesser included offenses of first-degree murder. Otherwise, all degrees of homicide would constitute murder in the first degree, regardless of the defendant’s intention or premeditation. First-degree premeditated murder (or any lesser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the -underlying felony for a felony-murder charge for the death of victim B.” Lucas, 243 Kan. at 466.
As the State notes, the hypothetical example given by the court in Lucas differs from the present case only in the detail, irrelevant to the legal effect, of defendant’s not being successful in killing his intended victim.
In Prouse, the defendant was convicted of child abuse of his young daughter and of felony murder for her death from abuse. By the time Prouse was before this court, a rehearing had been granted in Lucas and the original opinion had been affirmed. Thus, in accordance with Lucas, Prouse’s felony-murder and child abuse convictions were reversed and the case was remanded for trial on appropriate charges. 244 Kan. at 297. The court elaborated only to the following extent:
“The collateral felony must, therefore, be felonious conduct other than the lethal act itself. Thus, a homicide occurring during the commission of an independent felony, such as aggravated robbery, rape, or kidnapping, comes under the felony-murder statute (K.S.A. 21-3401). However, the lethal act itself cannot serve as the independent collateral felony necessary to support a felony-murder conviction. Thus, an aggravated battery (K.S.A. 21-3414) resulting in the death of the victim merges into the homicide and cannot serve as the collateral felony for felony-murder purposes. For further illustration, consider the situation where a robber shoots the victim during the commission of an aggravated robbery. If the victim lives, the robber could be convicted of the two separate felonies he or she committed — aggravated battery and aggravated robbery. If the victim dies as a result of the injuries so received, the robber may still be convicted of two felonies — felony murder and aggravated robbery. However, if the only felonious conduct involved is the cause of the victim’s death, then the doctrine of merger prevents die prosecution from splitting the act into a felony murder and a collateral felony charge. Therefore, an aggravated battery cannot serve as file collateral felony for felony murder. We then held in Lucas that designating an aggravated battery against a child as child abuse does not avoid the merger doctrine and result in two independent felonies.” 244 Kan. at 296-97.
Based on these cases in which the underlying offense merges with felony murder because the intended victim of the underlying offense and the homicide victim are one and the same, the State contends that, when the intended victim of the underlying offense and the homicide victim are different people, the underlying offense is independent and collateral to the homicide. Using language from these cases, the State justifies the rule on the ground that the underlying offense did not involve a personal act of violence to the deceased. It may also be said that this is not a case in which the only felonious conduct is the cause of the victim’s death. Although there is only one physical act, there are two types of culpable conduct. The attempt to kill A is felonious conduct, and killing B is felonious conduct. See Prouse, 244 Kan. at 297. In circumstances where the inherently dangerous act is directed at A and A dies as a result of it, there is only one act and only one type of felonious conduct.
The State offers the following explanation of the rulings in Fisher and Leonard within this framework: In those cases, the deceased victim was one of a group of people against whom the violent underlying felonious act was directed, but in neither case was any particular victim identified by the defendant. Thus, it cannot be said that the intended victim of the underlying felony is different from the actual victim, and the merger doctrine would apply. Fisher shot at the tires and gasoline tank of a car carrying a number of people who were strangers to him, and his shots killed one of the passengers in the car. Leonard drove his truck into a group of people gathered in a parking lot, and all escaped harm except Huffman. In Leonard, the State argued “that the merger doctrine does not apply if the intended victim of the underlying felony is different from the actual victim.” 248 Kan. at 431. The State, however, conceded that it could not prove who the intended victim was, and the court found the argument “not persuasive” in the circumstances. 248 Kan. at 431.
In this regard, this court has expressed several different concerns relative to the felony-murder doctrine. One is the possibility of a defendant’s being charged with two offenses based on the same act. Another is the possibility of a defendant’s being charged with first-degree murder regardless of the degree of homicide supported by the evidence. These concerns underscore this court’s different statements about felony murder. For example, in Prouse it was stated that the lethal act “cannot serve as the independent collateral felony necessary to support a felony-murder conviction.” 244 Kan. at 296-97. In Leonard, the same principle was stated as follows:
“Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.” 248 Kan. at 431.
In Lucas, the following statement was made about what could be a single act:
“First-degree premeditated murder (or any lesser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the underlying felony for a felony-murder charge for the death of victim B.” 243 Kan. at 466.
In the present case, only one count of murder was charged against defendant. He was not charged with an underlying felony. Thus, in this case, neither of the concerns which seem to underlie the court’s statements is present. Defendant was not charged with two offenses based on the same act. Nor was he charged with first-degree murder when there was no evidence of commensurate in tention or premeditation. Thus, neither double jeopardy nor elevation of the degree of homicide without regard to defendant’s intention is at issue. In general, the lethal act cannot serve as the independent collateral felony necessary to support a felony-murder conviction. However, this rule does not apply where the deceased was not an intended victim of the lethal act. Where, as in the present case, the attempt to Mil one person results in the death of another, the collateral felony of attempting to murder is so distinct from the homicide as not to be an ingredient of it. The collateral felony of attempted murder is not a lesser included offense of the homicide, and it does not merge with the homicide. Here, the attempted murder of the rival gang member(s) is an underlying felony which will support a felony-murder charge against defendant for the death of Halley.
In addition, even if the felony-murder theory were flawed for the reason suggested by defendant, it would not necessitate reversal. Defendant contends that tire district court’s permitting the jury to consider the felony-murder theory is error which requires reversal because it is impossible to tell from the general verdict form on which theory the jury based its finding of guilty of first-degree murder. In the circumstances of this case, however, the same evidence supports either charge, and both charges are first-degree murder. The evidence showed that defendant shot at the rival gang member(s) and Mlled a passerby. Under the transferred intent theory, this evidence supports the charge of first-degree intentional, premeditated murder of Halley. Under the felony-murder theory, precisely the same evidence supports the charge of first-degree felony murder of Halley committed in the attempt to commit the intentional, premeditated murder of another. Not being able to determine from the general verdict form on which theory the jury based its verdict, therefore, is immaterial. In order to reach the verdict, the jurors had to agree that the evidence necessary to support either charge had been shown.
The final issue raised by the defendant is whether the district court should have instructed on the lesser included offenses of intentional second-degree murder and voluntary manslaughter. The district court instructed the jury on second-degree uninten tional murder and on involuntary manslaughter. The jury was told that the charge of second-degree murder would be established if it had been proved that defendant killed Halley “unintentionally' but recklessly under circumstances showing extreme indifference to the value of human life” on September 8, 1993, in Sedgwick County. It was told that the charge of involuntary manslaughter would be established if it had been proved that defendant unintentionally killed Halley “during the commission of a lawful act in an unlawful manner; or recklessly.”
Defendant contends that the district court breached its affirmative duty to instruct on all lesser offenses for which there is evidence on which he might be convicted. He contends that instructions on intentional second-degree murder and voluntary manslaughter also should have been given. The State insists that there was no evidence to support those instructions. The district court’s duty to instruct on lesser included offenses “does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, Syl. ¶ 2, 755 P.2d 551 (1988).
Defendant is aware that instructions on lesser included offenses of felony murder often are not required. In State v. Strauch, 239 Kan. 203, Syl. ¶ 7, 718 P.2d 613 (1986), this court stated:
"When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to die elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlying felony was committed is weak, inconclusive or conflicting that instructions on lesser included offenses may be required. Under the facts of this case, it is held: The evidence on the charge of aggravated criminal sodomy was neither weak, inconclusive, nor conflicting and the trial court properly denied defendant’s requested instructions on the lesser included offenses for the alternative charge of felony murder.”
Strauch “was charged with premeditated first-degree murder and in the alternative felony murder, with the underlying felony being aggravated criminal sodomy.” 239 Kan. at 207. “Instructions on the lesser included offenses of second-degree murder and voluntary manslaughter were given for the charge of premeditated murder.” 239 Kan. at 218. Strauch’s request for instructions on lesser in- eluded offenses for the alternative charge of felony murder was denied. Strauch was convicted of premeditated murder and not felony murder.
In the present case, it was not specified whether the lesser included offense instructions were for the charge of premeditated murder or the alternative charge of felony murder. Nor do we know whether defendant was convicted of premeditated or felony murder.
Defendant contends that it is implicit in the district court’s instructing on the lesser included offenses of unintentional second-degree murder and involuntary manslaughter that the instructions were required because evidence that the underlying felony was committed was weak, inconclusive, or conflicting. It is equally reasonable to infer that the instructions were intended to be for the charge of premeditated murder. If so, the general rule with regard to lesser included offense instructions rather than the rule for felony-murder charges should apply.
K.S.A. 1993 Supp. 21-3402 defines second-degree murder as follows: “Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” The jury was instructed on subsection (b). Defendant contends that the evidence warranted an instruction on subsection (a). This court has stated that “[t]he duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.” State v. Dixon, 248 Kan. 776, Syl. ¶ 1, 811 P.2d 1153 (1991). In his brief, defendant points to evidence that he waited until he was out of danger and then he returned from the alley to fire the first shots.
The State argues that premeditation is evident in the evidence singled out by defendant. We agree. According to the State, in its version of the incident, defendant considered shooting the rival gang member(s) in the convenience store, but refrained from doing so because he was being watched. He left the store, walked across the street, set down his soda pop, and prepared to shoot. In this version as well, the shooting was premeditated and intentional. In defendant’s taped version, he returned fire rather than initiating it, and he asserted that he was acting in self-defense. The jury was instructed on self-defense. Thus, in neither of these versions was there evidence to support an instruction on second-degree murder under subsection (a) of 21-3402.
K.S.A. 1993 Supp. 21-3403 provides in pertinent part: “Voluntary manslaughter is the intentional killing of a human being committed: . . . (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” Defendant contends that an instruction parallelling subsection (b) of 21-3403 was warranted by the evidence in this case. It is his contention that the jury could have found that he believed the rival gang members’ use of force was imminent even though the belief would have been unreasonable. The evidence he relies on is that he was outnumbered by members of a rival gang, that they were engaging in provocative and disrespectful conduct toward him, that the rival gangs recently had engaged in deadly conflict, and that they showed him a gun. The State counters that neither of their versions of events supports an instruction that defendant killed upon an unreasonable but honest belief that deadly force was justified. In the State’s version, defendant was not only the aggressor who fired the first shots, he also used deadly force after any perceived threat had been dissipated. We do not find that this evidence reasonably would support a finding that defendant honestly, but unreasonably, believed that the circumstances in which he fired the shots justified deadly force. In defendant’s version, he was acting in self-defense. If he was acting in self-defense, his belief that circumstances existed that justified deadly force would not be unreasonable.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
The State appeals the district court’s dismissal of a complaint charging three felony drug violations against Steven Bockert for lack of probable cause following a preliminary examination. This court has jurisdiction pursuant to K.S.A. 1993 Supp. 22-3602(b)(l).
On October 4, 1993, Kansas Highway Patrol Troopers Brian Smith and Richard Jimerson stopped an automobile for speeding on Interstate 35 in Franklin County, Kansas. Steven Bockert was a passenger in the vehicle driven by Steven Howell. After Howell was issued a warning for no driver s license and speeding, he consented to a search of the vehicle. Upon opening the trunk, the troopers discovered a bundle containing approximately 10 pounds of marijuana. Howell and Bockert were charged with possession of marijuana with the intent to distribute, a severity level 3 drug felony in violation of K.S.A. 1993 Supp. 65-4127b(b)(3); conspiracy to distribute marijuana, a severity level 3 drug felony in violation of K.S.A. 1993 Supp. 65-4127b(b)(3) and K.S.A. 1993 Supp. 21-3302; and failing to pay tax on marijuana and controlled substances, an unclassified felony in violation of K.S.A. 79-5208.
At the preliminary examination before a district magistrate, the only witness was Trooper Smith. Trooper Smith stated that after the vehicle was pulled over, he approached the passenger side of the vehicle and observed the occupants while Trooper Jimerson approached the driver’s side to speak to Howell. Trooper Jimerson asked the driver, Howell, to get out of the vehicle with his driver’s license. Howell exited the vehicle but did not have a driver’s license on his person. Trooper Jimerson took Howell to the patrol car to determine his identity. Bockert remained in the passenger seat of the vehicle. Howell told Trooper Jimerson his name was “Steve.”
In an effort to determine the identity of the driver, Trooper Smith asked Bockert who the driver was, where he and Bockert had been, and what they were doing. Bockert told Trooper Smith that he had known Howell for five years, that Steven Howell’s name was “Lonnie,” and implied that they were traveling a short distance. Bockert looked straight ahead and avoided eye contact with Trooper Smith.
Trooper Smith made several trips between the patrol car and the stopped vehicle to question Bockert as to Howell’s identity. On one occasion Trooper Smith opened the passenger door to speak to Bockert and surveyed the interior of the car. During the conversation with the defendant, Trooper Smith observed approximately five keys hanging from the key ring in the ignition. One of the keys appeared to be the car’s trunk key because of its distinctive shape and the make of the vehicle. While observing the interior of the vehicle, the trooper noted that there was nothing on the floor between the passenger seat and the passenger door.
After Howell consented to a search of the vehicle, the officers discovered that the key to the trunk of the car was not on the key ring. Trooper Smith located a trunk key on the floor of the vehicle between the passenger door and passenger seat where Bockert had been seated. The key had not been on the floor when Trooper Smith had opened the door initially. The troopers used that key to open the vehicle’s trunk. In the trunk of the vehicle the officers discovered the bundle containing approximately 10 pounds of marijuana.
At the conclusion of Trooper Smith’s testimony, defense counsel moved to dismiss the charges for lack of evidence. Defense counsel pointed out that Bockert was not in possession of the vehicle, that Bockert had no ownership interest in the vehicle, and that none of Bockert’s possessions were in the trunk. Defense counsel argued that the State had failed to show a connection between Bockert and the marijuana. The magistrate denied the motion to dismiss, found it appeared a crime had been committed, and found probable cause to believe that Bockert had committed the crimes charged. Bockert was bound over for arraignment.
Bockert filed a motion to dismiss. At the hearing on Bockert’s motion before the district judge, defense counsel argued that Bockert’s removal of the trunk key from the key ring and his reference to Howell as “Lonnie” provided insufficient evidence to support a finding of probable cause that Bockert had committed the crimes charged. The prosecutor responded that he intended to introduce at trial a videotape taken from the patrol car which indicated Bockert made “an affirmative motion towards the key ring” while he was alone in the vehicle. The prosecutor argued that Bockert’s motion toward the key ring, the later recovery of the key next to Bockert’s seat, and the fact that Howell and Bockert were on a lengthy interstate trip as opposed to travelling across town provided sufficient circumstantial evidence upon which to base a finding of probable cause that defendant committed the crimes charged. The district judge granted Bockert’s motion to dismiss, stating: “I’ve read this transcript [of the preliminary examination] several times, and the only thing I can find is a reasonable suspicion, not a probable cause.” The State appealed.
The State claims that the district court erred in finding that the evidence was insufficient to find probable cause to bind Bockert over for arraignment. The State points to comments by the district judge and contends that the judge applied the wrong standard for weighing evidence at the preliminary examination and erroneously concluded that the officer’s testimony was insufficient to show probable cause.
Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate. K.S.A. 1993 Supp. 22-2902(1). If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant. K.S.A. 1993 Supp. 22-2902(3).
The preliminary examination is an important part of Kansas criminal procedure. In addition to preserving the testimony of witnesses, it is protection for an accused and an instrument for justice. It apprises the person arrested as a result of a complaint of the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution, and it affords the accused an opportunity to challenge the existence of probable cause for further detention or for requiring bail. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915, reh. denied 425 U.S. 985 (1976).
An appeal from an order dismissing a complaint may be taken by the prosecution. K.S.A. 1993 Supp. 22-3602(b)(l). In appeals by the prosecution from an order discharging the defendant for lack of probable cause, the reviewing court follows the same standard for weighing the evidence as the magistrate in the preliminary examination. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). The evidence at a preliminary examination need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. at 935. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Green, 237 Kan. 146, Syl. ¶ 3, 697 P.2d 1305 (1985). The term “probable cause” is defined to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the accused is guilty of the offense with which he or she is charged. State v. Howland, 153 Kan. 352, Syl. ¶ 4, 110 P.2d 801 (1941).
It is not the function of the magistrate at a preliminary examination to determine the wisdom of the prosecuting attorney’s decision to file and pursue the charges against a defendant. Neither is it the function of the magistrate to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. State v. Puckett, 240 Kan. 393, Syl. ¶ 3, 729 P.2d 458 (1986).
After counsel for Bockert and the State had argued their respective positions at the hearing on the motion to dismiss, the district judge commented that he would assume that Trooper Smith could pick out the trunk key from the passenger side of the stopped vehicle even though he was suspicious of the trooper’s conduct. The judge stated: “I’m not saying I don’t believe him, but I’m saying I’m suspicious of his conduct.” The judge noted that the troopers had determined the car was speeding by pacing it instead of using radar and had chosen to question Howell and Bockert separately, and that the trooper’s questioning of Bockert was likely an improper custodial interrogation. The judge stated:
“It’s obvious from reading the transcript that die car was stopped for speeding, but that stop was for speeding but not really. It’s obvious that when they were questioning [Bockert] and [Howell] separately and [Trooper Smith] made three or four trips to question the passenger that they had something in mind other than speeding when they stopped the car. That’s my guess, but regardless of what I suspect and know probably to be die case, I still must construe tiiis— this man’s charged with possession of drugs. There’s nothing to connect him to ownership of the car, access to those drugs or any evidence that he possessed those drugs at any time.”
The judge acknowledged that the facts, construed favorably to the State, would raise reasonable suspicion that Bockert was involved in criminal activity. Nevertheless, the judge stated that the appropriate standard at a preliminary examination was whether a crime had been committed and whether there was probable cause to believe that the person charged committed the crime. Noting that the only evidence to support the State’s case was the fact that Howell and Bockert were on a longer trip than across town and Bockert’s alleged removal of the trunk key from the key ring and placing it beside his seat, the judge stated:
“It doesn’t matter what [Bockert] did. Even if he seemed to do it, that does not make sufficient evidence for probable cause to bind somebody over. It’s a case of suspicion. It has been historically true since I’ve been on the bench, not only by this prosecution but by the prior prosecution, to charge everybody in the car with possession, and I suppose that’s for leverage. That’s not my concern, but the case here against this man is so weak that he should not have been bound over because the only thing that could have been derived from this is the fact that this gentleman committed acts that may have been suspicious but certainly not probable cause acts.”
The judge concluded the hearing with the following comments:
“I’m never impressed with the fact that someone was bound over. Magistrates seem to be good at that regardless, but the State has a remedy. If they’ve got more evidence they can always file a new charge, refile the charge and start over again, but the evidence in this preliminary certainly does not support a finding of probable cause that this person committed the crimes with which he was charged.”
The State contends these comments by the judge demonstrate that he failed to apply the appropriate standard in reviewing the probable cause determination by the magistrate and improperly speculated as to the credibility of Trooper Smith.
This court’s analysis in State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976), while expressly referring to the sufficiency of evidence to sustain a conviction for possession of drugs, is instructive. In that case, this court stated that possession and intent, like any element of a crime, may be proved by circumstantial evidence. When illicit drugs are found in an automobile contain ing more than one person, the defendant’s mere presence in the vehicle, without more, would not sustain his or her conviction for possession. Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are the defendant’s previous participation in the sale of drugs, use of narcotics, proximity to the area where drugs are found, and the fact the drugs were found in plain view. While no one of these circumstances, by itself, may be sufficient to support a conviction, taken together they provide a sufficient inference of knowing possession to support a verdict. 220 Kan. at 160. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of the defendant’s possessions to the drugs. State v. Bullocks, 2 Kan. App. 2d 48, 50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978).
There is no evidence that Bockert previously participated in the sale of drugs or that he used drugs. The drugs were found concealed in the trunk and were not in plain view. There were no drugs located in the interior of the vehicle. None of Bockert’s belongings were in the trunk. The evidence suggesting Bockert had control over the marijuana was that Howell and Bockert were on a longer trip than across town as stated to the officers; Bockert’s misidentification of the driver; his reluctance to look directly at Trooper Smith while speaking to him; and Bockert’s removal of the trunk key from the key ring and his hiding it beside his seat. It is noteworthy that the videotape purportedly showing Bockert making an action toward the key ring was not introduced at the preliminary examination and cannot be considered on review.
The district court erred in applying an inappropriate test and in discharging the defendant. The evidence was sufficient to support a probable cause finding and to order the defendant bound over for trial. See State v. Bloomer, 197 Kan. 668, 671, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967).
The judgment of the district court is reversed, and the case is remanded with directions to reinstate the complaint and for further proceedings in conformity with this opinion. | [
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from aggravated robbery and felony-murder convictions. The defendant, Joel D. Butler, raises numerous issues which he claims require us to reverse both convictions. However, our review discloses no reversible error, and for the reasons set forth below we affirm the convictions and sentence of the defendant.
Early in the morning on August 10, 1992, the Mid-America Inn in Salina was robbed, and the night clerk, Oliver Bigler, was murdered. Police were called to the scene when Audrey Wright, who arrived at the motel at approximately 4:50 a.m. to open the restaurant, found the door locked and was unable to summon the night clerk.
Officer Glen Soldán of the Salina Police Department testified that he arrived at the motel at 5:30 a.m. and went to check the back door. Approximately 25 feet from the back door, Soldán found a safe lying in the grass near a white plastic ice bucket and a canvas bag. Soldán testified that he attempted to enter the motel through the back door but the deadbolt lock was engaged.
Eventually, the manager of the motel arrived with a key to the motel office. Inside, police found the office area splattered with blood, and they discovered Biglers body lying in front of the desk. Bigler had sustained severe trauma and lacerations to the head, and police discovered a letter opener embedded in Bigler s neck.
David Klamm, a special agent with the Kansas Bureau of Investigation, searched the office area. He found a broken blood-stained BB gun along with some pieces of wood that looked as if they had come from the stock of die gun. Kelly Robbins, a KBI forensics examiner, testified that she found a blood-stained brick. Officers also found what appeared to be a broken piece of a collapsible antenna. A police dog searched the wooded area east of the motel and discovered a handgun.
An autopsy revealed that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in the right ear canal. In the opinion of Dr. Norman Macy, death was caused by several severe blows which destroyed the front of the head and tore the brain in half. The head injuries were consistent with those that could have been caused by a brick or gun stock.
Butler was arrested and charged with premeditated murder, felony murder, and aggravated robbery. Three other individuals, Juan Anthony, Artis Swafford, and Jennifer Harmon were also charged as a result of the murder and robbery. Butler, Anthony, and Swafford were tried jointly.
On December 3, 1992, Butler came before the court for his prehminary hearing. Ron Hagan, an agent for the Kansas Bureau of investigation, testified that he had searched the car of Juan Anthony and found blood in the back seat. James Norton, an officer for the Salina Police Department, testified that he discovered a partially smoked Marlboro cigarette on the ground in the comer of the parking lot.
Butler objected to the testimony of Karen Renee Greer concerning statements made by Juan Anthony, contending that the testimony was hearsay. The State argued that the statements should come in under the coconspirator exception found in K.S.A. 60-460(i)(2). After much discussion, the court overruled the objection, finding that there was sufficient evidence on the record to establish a conspiracy. Greer testified that Anthony had told her he, Butler, and Swafford were going to rob a motel, knock out the clerk, and stick a sharp object in the clerk’s throat.
Detective Edward Swanson of the Salina Police Department testified that the motel’s safe was found in the grass behind the motel. He stated that one person acting alone would be unable to move the safe. Lieutenant Brian Shea of the Saline County Sheriff’s Office testified that after Butler’s arrest defendant Butler purchased several brands of cigarettes from the jail: Kools, Marlboro Reds, Marlboro 100’s, and a generic brand. The State then recalled Sergeant Sweeney, who testified that during the search of Anthony’s car, a black folder belonging to Buder was found in the rear compartment. Over the defendant’s motion to dismiss, Butler was bound over to stand trial of all charges based primarily on the testimony of Greer.
Butler and the other defendants filed a motion for change of venue, contending that pretrial publicity created a substantial likelihood that they would not receive a fair trial. In support of the motion, Randall Picking of KSAL radio in Salina testified that his station had broadcast a call-in show that dealt with the crime on the day of the defendants’ arrests. Raymond Pollard, the vice-president of KSKG radio in Salina, stated that his station had reported stories on the murder, including the names of the persons arrested. George Pyle, the editor of the Salina Journal, stated that he had published articles which had detailed tire prior convictions of Anthony as well as stories which stated that Anthony’s neighbors were afraid of him because he and his friends carried guns and had all-night parties. Pyle also admitted running a story on the trial testimony with a headline stating that Anthony had planned the robbery and murder. Other radio news directors testified that they had run stories on the murder and the suspects.
The defendants then presented the testimony of Dr. James Franke, the director of the Survey Research Unit at the Kansas State University Institute for Social and Behavioral Research. Dr. Franke testified that he had conducted a public opinion poll to test the public’s knowledge of the case. The survey showed that of 366 persons surveyed, 97.5% had heard about the case. Of those people, 49% thought that the evidence was strong against all the suspects and 56% of those surveyed felt that the evidence was strong against Butler.
The district court determined that the defendants had failed to show prejudice to such a degree that it would be impossible to obtain an impartial jury. Accordingly, the court denied the motion.
The court then took up the motion for severance of defendants. The district court stated that many of the alleged hearsay statements would come in under the coconspirator exception to the hearsay rule. The court ordered that any other hearsay statements of Anthony regarding Swafford and Butler should be redacted. Accordingly, the court denied the motion to sever.
At trial, the State called Marilyn Jensen, who testified that she was traveling through Salina in the early morning hours of August 10 and that she stopped at the Mid-America Inn around 1:00 or 2:00 a.m. According to Jensen, an older gentleman, presumably Bigler, told her there were no vacancies and directed her to the Ramada Inn. Marie McDaniel, the desk clerk at the Best Western Heart of America Inn, another motel in Salina, stated that she last spoke to Bigler at 2:00 a.m.
Randy Jennings, a patrolman with the Salina Police Department, testified that he had stopped Anthony at approximately 2:38 a.m. for running a red light. According to Jennings, after he gave Anthony a warning, Anthony drove off heading north. Earlier that evening, Jennings had stopped a car driven by Orvin Mixon and arrested Mixon for driving while suspended. Swafford was a passenger in the car and was allowed to drive it away.
Don Dean, the general manager of the Mid-America Inn, testified that there were only two keys to the back door, one of which was kept at the office. He identified the safe found outside the door as the one that was kept in the office and the place where all the business proceeds and receipts were kept. He identified the white bag found outside as the bank bag where the small bills were kept.
Robert Taylor, a desk clerk at the Mid-America Inn, stated that in order to open the cash register, the button marked “room number” must be depressed. There had been two previous robberies of the motel that summer, and eveiyone who worked there thought it was an “inside job” because during the second robbery the robber knew how to open the cash register.
The State next presented the testimony of Lieutenant Kiltz of the Salina Police Department. Kiltz testified that he had executed a search warrant on the home of Juan Anthony and his mother. Inside Anthony’s bedroom, Kiltz found a .38 revolver.
Officer Briggs testified that he also was involved in the search of Anthony’s residence. Briggs testified that he searched a trash can and found a battery-operated walkie-talkie inside an empty dog food bag. The antenna of the walkie-talkie had been broken off. The walkie-talkie’s casing was broken, and there were hair and carpet fibers on it.
L.J. Stephenson, a KBI firearms and toll examiner, testified that the antenna piece found at the crime scene matched the piece of the antenna found on the walkie-talkie in Anthony’s trash can. Stephenson also testified that the wood chips found on the floor of the crime scene came from the stock of the BB gun found at the scene.
Sergeant Sweeney of the Salina Police Department testified that he also helped search Anthony’s residence and car. In Anthony’s bedroom, he found a walkie-talkie. In Anthony’s car, he discovered a $10 roll of quarters and a Tec 9 handgun.
The State next introduced the testimony of Kit Phifer. Phifer testified that she knew the defendants and that on August 9 she was with friends Renee Greer, Sunshine Daniels, and Stephanie Neustrom. According to Phifer, the other girls took her home early that evening. The next morning she called Greer. Phifer asked Greer if she had known about the robbery, and Greer indicated that she had. Later, Greer told Phifer that Anthony had showed her a key to the motel office.
Sunshine Daniels was the next person to testify. Daniels indicated that she had known the defendants for about a year but that the night of August 9 was the first time that Greer had met An thony. According to Daniels, after the group had dropped Phifer off, they went to Anthony’s house. Later, Greer and Anthony left to take Stephanie Neustrom home. They then took Daniels to her boyfriend’s house.
Daniels testified that the next day Greer told her that she and Anthony had gone out to eat barbecue at Orvin Mixon’s house. However, later, Greer told Daniels about the murder.
At this point, the attorneys for Swafford and Butler objected on the ground that anything Greer told any of the girls as to what Anthony told her was hearsay and inadmissible. Earlier, they had made the same objection when Phifer was testifying, although no hearsay information had actually been elicited. The district court had overruled the previous objection on the ground that any statements would be subject to the conspiracy exception. It again made the same ruling.
According to Daniels, Greer told her that Anthony had planned the murder and told her about it. Greer also told Daniels that she had sex with Anthony that night.
Krista Young then testified that in August 1992, she lived with Orvin Mixon. On August 9-10, they had a barbecue. According to Young, Swafford and Butler had been at the barbecue most of the evening. She testified that she went to bed around 3:00 or 4:00 a.m. and did not see Anthony at the barbecue. Immediately afterward, however, she testified that she had seen Anthony at the barbecue but she had not seen Anthony, Swafford, and Butler leave together.
The State next called Stephanie Neustrom to the stand. Neustrom stated that she had a sexual relationship with Butler. Neustrom reported that on the night of the crime, Anthony and Greer took her home around 10:00 or 11:00 p.m. The next day she had a phone conversation with Greer and Greer told her that she had sex with Anthony. A few days later, Greer told her that Anthony had left the house in the middle of the night to rob the Mid-America Inn.
Once again, the defendants’ attorneys made hearsay objections, which were overruled. Neustrom went on to relate that Greer told her Anthony had planned to rob the motel and injure the clerk. Greer also told Neustrom that she helped him count money when he returned. Neustrom asked Greer if Butler was involved, and Greer told her that Butler did not know what was going to happen when he got into the car with Anthony. Neustrom testified that Greer told her Butler drove the car and waited outside.
At this point, Butler’s attorney lodged a hearsay objection, which was overruled. Neustrom then testified that Greer told her Swafford and Anthony were supposed to hit the clerk but that when the clerk did not go down, Swafford went back outside.
Greer then testified. She stated that after taking Daniels and Neustrom home, she and Anthony went back to his house and had sex. Sometime after 2:30 a.m., Anthony told her that he, Butler, and Swafford were going to rob a motel and kill the night clerk by shoving a sharp object down his throat. Anthony showed her the key they were going to use to get into the motel. Before Anthony left, she saw walkie-talkies, and Anthony showed her a sharp object which looked like a nail file. However, she testified that the object was not the letter opener found in Bigler’s body.
According to Greer, Anthony returned later and told her that he had been over at Mixon’s house. However, he was carrying some money, and Greer helped him count it. Greer also testified that at one time she considered herself engaged to Anthony and that she had previously lied to police and given alibi testimony for him.
The State then called Ramona Keil, a night clerk at the Mid-America Inn. Keil testified that she had been on duty during the two previous robberies at the motel. She testified that on May 31, 1992, a man entered that motel and asked for a room. When she turned to look at the clock, he hit her on the head and then continued hitting her until she passed out. Eventually, she was thrown into the restroom, and she heard someone hitting the cash register keys. The person was unable to open the register, and nothing was taken.
Keil testified that on July 7 the front and back doors of the motel were locked. She was watching TV in a room next to the office when she heard glass break. When she went out into the lobby she saw the man from the first robbery, who proceeded to hit her with a black club. She was then kicked and thrown into the restroom. This time the assailant was able to open the cash register. Keil identified Swafford at trial as the person who committed the crimes, although she had previously been unable to identify him.
The State then presented the testimony of Detective Gerald Shaft of the Salina Police Department. Shaft testified that as part of a drug sting operation the department had rented two apartments in a building in Salina. Shaft and another officer occupied one apartment, and Lamar Williams, a confidential informant, occupied the other. Williams’ apartment was wired with videotape and sound so that the officers in the other apartment could monitor drug transactions.
At this point, the State sought to question Shaft as to certain statements Williams had made to him regarding information Anthony had given to Williams. Butler’s attorney objected on the grounds of hearsay. The district court overruled the objection, citing the conspiracy exception to hearsay. Both Butler’s and Swafford’s attorneys lodged a continuing objection to the testimony.
Shaft then testified that Lamar Williams told him he had talked to Anthony prior to the crime and Anthony had asked him to participate in a robbery and murder at a motel. Shaft also testified that following the crime Anthony went to Williams’ apartment to sell drugs. In a conversation that was both videotaped and audiotaped, Anthony told Williams about the crime and demonstrated how the murder had been committed.
Shaft also testified that he had interviewed Anthony after Anthony’s arrest. At first, Anthony denied any involvement. After being told of the existence of the tapes, Anthony became visibly upset and unable to believe that Williams was working for the police. When another officer asked Anthony why he would commit such a crime, Anthony stated, “Because it was peer pressure.” According to Shaft, Anthony also stated, “I’m going to get the Hard 40 for this.”
Lamar Williams then testified. Williams stated that during the time the crime was committed he was working on drug buys for the police and knew all three defendants. According to Williams, Anthony told him he was going to rob the motel, Swafford was going to knock out the clerk, and Anthony was going to slit the clerk’s throat.
Williams testified that the night after the robbery and murder occurred, Anthony came to his apartment to sell drugs. While there, Anthony talked about the crime. Williams stated that Anthony had also talked about the previous robberies at the motel. Anthony had told Williams that he had a girl that would do anything for him and that the girl had made him a key to the motel. Anthony said that in the previous robberies, Swafford had gone into the motel and knocked out the clerk, Butler had been the lookout man outside, and Anthony had been the brains behind the operation.
Williams also testified that he had talked to Swafford about the murder of Bigler. All Swafford said was, “He was old, he was going to die anyway.” When Williams told Swafford that Anthony had told him all about the murder, Swafford said, “Juan talked too much.” Swafford also stated, “Man, we went up to that motherfucker and — and the dude wouldn’t give up so we had to fuck him up, man.”
Mike Marshall, a sergeant with the Salina Police Department, testified that he was in the upstairs apartment while Anthony was describing the crime to Williams in the downstairs apartment. He identified the videotape and audiotape as the tapes made that night. The videotape and audiotape were played for the juiy. They are not a part of the record on appeal.
Kelly Robbins, a KBI forensics examiner, also testified on behalf of the State. She stated that she found blood on the seats of the Geo Metro owned by Anthony’s mother. There was also blood present on a t-shirt, a sock, and a pair of sweatpants found at Anthony’s residence. According to Robbins, the blood on the sweatpants was consistent with Bigler’s blood and could not have come from either Anthony or Swafford.
Florence Thompson, a friend of Butler, testified that Butler had come to her residence on August 14 and stated that the police were looking for him and that he was involved in the murder in Salina. Thompson advised Butler to turn himself in, which he did.
Chad Johnson, a worker at Aleo, also testified on behalf of the State. Johnson testified that during the summer of 1992, he had copied a key for Butler.
Jennifer Harmon was called as a witness for the State. She admitted that she had been charged in the murder and robbery and had agreed to testily in exchange for the State’s agreement to drop the murder charge. She stated that she was 17 at the time of the murder and had known Anthony since she was 11 years old. Anthony had previously worked at the restaurant at the Mid-America Inn, which was owned by Harmon’s grandparents. Harmon stated that she returned to Salina in 1991 after living in Topeka for some time. She reestablished contact with Anthony, and they began a sexual relationship in the winter of 1991. Harmon stated that in April 1992, she began working at her grandparents’ motel from 3 to 11 p.m.
Harmon testified that after the first attempted robbery of the motel, she went to Anthony’s home and Swafford was there. As Swafford left, he asked Harmon “how the bitch was.” Harmon testified that Anthony later told her that Swafford had gone into the motel and hit Ramona Keil on the head. Anthony stated that they had been unable to get into the cash register. Harmon told Anthony that the “room number” button had to be used to open the cash register.
Hannon stated that at one time she gave Anthony and Butler a ride to Junction City. On the trip, Anthony asked her to get him a copy of the keys to the motel. Defendant Butler also encouraged her to get the key for Anthony. Eventually, she agreed to leave the key where Anthony could pick it up and copy it.
After the second robbery at the motel, Harmon again went to Anthony’s house. Anthony was outside with Swafford, and Swafford again asked her “how the bitch was.” Later that summer, she was in Anthony’s room when she noticed some walkie-talkies. Harmon testified that Anthony asked her if she would let him rob the motel while she was on duty so that he would not have to split the money with Swafford and Butler. Butler’s attorney objected on the grounds of hearsay, but the objection was overruled. Harmon refused to agree to be robbed.
Harmon testified that she became scared of Anthony and wanted out of the relationship. She stated that she gave Anthony money and clothes so that he would stay out of trouble. According to Harmon, Anthony was blackmailing her with a videotape of them having sex, which he threatened to expose.
Harmon stated that when she heard about the robbery and murder, she suspected Anthony. She went over to Anthony’s house and found him sleeping; when she asked how he could sleep after what he had done, Anthony told her that he had “no conscience.” Butler then arrived, and Harmon told him that they were all going to get caught. She mentioned that Butler had left some fried chicken at the crime scene and Butler stated, “I didn’t take any chicken with me.” Butler told her that he was not going to say anything and that if she and Anthony said nothing, no one would find out.
Butler presented an alibi defense. Kenneth Green testified that he had been at Mixon’s party, left for a while, and then came back around 1:00 a.m. According to Green, he, Butler, and Swafford left to buy cigarettes soon after, drove by Benton’s Cafe, and then went back to the party, where they all remained for the rest of the evening.
During deliberations, the jury sent a question to the judge concerning the redacted transcript of the videotape. The jury asked, “If we have established that Swafford and defendant Butler were there, can we use this as evidence?” The agreed-upon answer given to the jury by the trial judge was that the statement could not be used as evidence against Swafford and Butler. The jury also asked for a read-back of the cross-examination testimony of Harmon concerning fried chicken found at the crime scene. The. district court proposed to read back both the direct and cross-examination in this area. Butler’s attorney objected, arguing that the jury had asked only for the cross-examination. The district court found that both direct and cross-examination were necessary in order for the statements to be understood and overruled the objection.
Butler was convicted of felony murder and aggravated robbery. He was sentenced to a term of life for the felony murder and a term of 15 to life for the aggravated robbery, to run consecutively.
The defendant contends that the trial court committed reversible error in the following particulars: (1) denial of a motion for change of venue; (2) denial of a motion for dismissal of charges following preliminaiy hearing; (3) denial of a motion for severance; (4) admission of the hearsay statements of Greer; (5) admission of other hearsay statements of the nontestifying codefendant Anthony; (6) erroneous jury instructions; (7) reading back testimony which was not requested by the jury; (8) denial of motions for a judgment of acquittal and for a new trial; and (9) sentencing the defendant. Finally, the defendant claims that the evidence was insufficient to sustain his convictions.
CHANGE OF VENUE
Butler contends that the district court erred in denying his motion for change of venue because the pretrial publicity created so great a prejudice that he could not obtain a fair and impartial trial in Saline County. K.S.A. 22-2616(1) provides that the court shall, upon motion of the defendant, transfer the case to another county if it is satisfied that there is so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in that county.
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. State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992). 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. 252 Kan. at 57.
As a threshold question, the State claims that Butler waived the change of venue issue by failing to renew the motion at the conclusion of jury selection. In support of this contention, the State cites State v. Bierman, 248 Kan. 80, 88, 805 P.2d 25 (1991) and State v. Richard, 235 Kan. 355, 365, 681 P.2d 612 (1984). Neither of these cases stand for the proposition that a defendant must renew the motion immediately following voir dire or see the objection waived. Rather, each of these cases notes that the defendants chose not to renew their requests at any time after the completion of voir dire, indicating that nothing new had arisen during voir dire that would show problems with finding an impartial jury. See State v. Bierman, 248 Kan. at 88; State v. Richard, 235 Kan. at 365. Butler’s attorney renewed his request for change of venue the next day. We find no merit in the State’s argument that the motion for change of venue was waived.
Butler argues that the nature of the pretrial publicity created overwhelming prejudice. It is true that the crime and the arrest of the defendants were highly publicized. However, media publicity alone has never established prejudice per se. State v. Grissom, 251 Kan. 851, 927, 840 P.2d 1142 (1992). The burden is on the defendant to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. 251 Kan. at 927.
The defendants presented a survey conducted by the Kansas State University Institute for Social and Behavioral Research in support of his motion. The survey consisted of an interview with 366 persons in the Salina area. It revealed that 97.5% of those surveyed had heard about the case and the suspects; 49% of those surveyed felt that the evidence was strong against all four suspects; and 15.8% of those surveyed felt the evidence was strong against some defendants and weak against others. Of those persons, 42.9% felt the evidence was strong against Butler. Thus, 56.3% of the total surveyed felt the evidence was strong against Butler. Of those surveyed, 18% felt that they could not be impartial if asked to serve on a jury, 9.3% felt it was unlikely they could be impartial, 24.3% felt that it was likely that they could be impartial, 29.9% felt that it was very likely that they could be impartial, and 18.6% had no opinion.
There were motions made by all defendants regarding individual voir dire. However, the district court denied the motions and determined instead that problems could be avoided by summoning different panels at different times to prevent contamination of the jury pool at large. Six separate panels of prospective jurors were summoned and questioned by the court and counsel. In denying the motion for individual voir dire, the court offered to revisit the motion if a problem occurred when picking a jury.
The record reveals that each of the defendants’ counsel asked questions regarding pretrial publicity, including whether the jurors had formed an opinion and whether that opinion was strong against one or all three defendants. Of the first panel of 18 jurors, 5 jurors indicated that pretrial publicity had led them to form an opinion, and they were dismissed for cause. The judge also asked questions of the jury regarding pretrial publicity at juror orientation. In the second panel, Swafford’s attorney asked for a show of hands from those people who felt Swafford was guilty. The two persons who indicated they felt that he was guilty were dismissed for cause. All attorneys asked questions of the third panel concerning publicity. From the third panel, five persons said they had been affected by the pretrial publicity, but only two of those five were asked to be stricken by the defense attorneys. Those two were stricken for cause.
On the fourth panel of 25 jurors, 12 felt that they knew a great deal about the case and had at least started to form their own opinions. Of those 12,10 were asked to be stricken for cause. Seven of those were stricken, but three who claimed that they would try to be impartial were left on. Both the judge and the attorneys, asked questions about publicity. Of the fifth panel of 24, only 2 stated that they might have formed an opinion, and both stated that they could set that aside and.be impartial. However, one was dismissed for cause. On the last panel of 25, only 2 expressed an opinion of the case, and they were dismissed for cause.
The court qualified 90 of the jurors for use on the jury panel. Each defendant then received 12 peremptory strikes, and the State received 36 strikes. The defense struck the three persons challenged for cause on the third panel that had not been stricken for cause. ...
On the whole, the court questioned only 125 jurors to arrive at a jury pool of 90. The record discloses that the attorneys had few, if any, problems in questioning jury members about the effects of publicity. All but three of the challenges for cause because of pretrial publicity were granted, and the remaining three challenged venirepersons were taken off by peremptory strikes. The whole selection process lasted two days-. Although jury selection was drawn out due to the district court’s precautions, it was not inor dinately difficult to pass a pool of jurors for cause. No objections were made about the process following the selection.
We conclude that the court did not abuse its discretion in denying Butler’s motion for change of venue. In concluding our discussion of this contention, the following quote from State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), is appropriate:
“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.”
MOTION TO DISMISS AFTER THE PRELIMINARY HEARING
Butler next argues that the district court erred in failing to dismiss the case after the evidence was presented at the preliminary hearing. He argues that the only evidence presented at the preliminary hearing connecting him to the crime was the inadmissible hearsay of Greer.
In order to bind a defendant over for arraignment and trial, the State must present evidence at a preliminary hearing sufficient to show that it appears a felony crime was committed and that probable cause exists to believe that the defendant committed the crime. State v. Palmer, 248 Kan. 681, 688, 810 P.2d 734 (1991). Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain reasonable belief of the accused’s guilt. State v. Chapman, 252 Kan. 606, 620, 847 P.2d 1247 (1993).
We have held that the sufficiency of a preliminary examination may be challenged only by a motion to dismiss or grant appropriate relief filed in the district court. State v. Lashley, 233 Kan. 620, 624, 664 P. 2d 1358 (1983). Failure to challenge in this manner amounts to waiver. In this case the defendant properly filed a motion to dismiss before the district court regarding the sufficiency of the preliminary hearing. Thus, we are faced with the issue of whether a defendant who has been found guilty before the district court may successfully challenge his conviction on appeal, claiming that evidence at the preliminary hearing was insufficient to bind him over for trial on that charge.
The evidence providing the basis for binding Butler over to stand trial on charges of murder and aggravated robbery came from Greer. She testified that Anthony told her he, Butler, and Swafford were going to rob the motel and injure the clerk. This testimony is unquestionably hearsay and would be inadmissible absent an exception.
The State contended at the hearing that the evidence fell under the coconspirator exception to hearsay found in K.S.A. 60-460(i)(2), and the evidence was admitted on these grounds. This statute provides an exception to the hearsay rule for those statements
“which would be admissible if made by the declarant at a hearing if . . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
Even if the requirements of the statute are satisfied, there must be evidence absent the hearsay statements which establishes some substantial factual basis for the existence of a conspiracy. State v. Schultz, 252 Kan. 819, 842, 850 P.2d 818 (1993).
Butler contends that the evidence presented by the State at the preliminary hearing was not sufficient to establish that a conspiracy existed or that he was a part of it. In order to meet the requirements for admission as the statement of a coconspirator, there must be evidence other than the proffered out-of-court statement which establishes a “substantial factual” basis for a conspiracy between the defendant and the declarant. State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985). When proof of a conspiracy depends upon circumstantial evidence, prima facie proof of the conspiracy prior to the introduction of the proffered out-of-court statement cannot be required, and when the whole of the evidence introduced at trial shows a conspiracy, the statement is admissible. 238 Kan. at 176; State v. Schultz, 252 Kan. at 842.
In this case, the only evidence presented by the State at the preliminary hearing, absent the hearsay statements themselves, which would have established a conspiracy was that: (1) a Marlboro cigarette was found in the motel parking lot and Butler sometimes smoked Marlboros; (2) the evidence suggested that more than one person was involved in the robbery; (3) some property belonging to Butler was found in the baggage compartment of the car known to be driven by Anthony; and (4) Butler lived at Anthony’s house. While this evidence may show that a conspiracy existed, it does not establish the required substantial factual basis from which a reasonable person could infer that Anthony and Butler were coconspirators or that Butler was involved in the crime. Therefore, the district court erred in admitting the hearsay statements at the preliminary hearing under the coconspirator exception.
Although the district court erred in binding over Butler for trial, this error does not necessarily require reversal. A preliminary hearing is not a trial of a defendant’s guilt or innocence but rather an inquiry as to whether the defendant should be held for trial; its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed a crime. State v. Wimberly, 246 Kan. 200, 209, 787 P.2d 729 (1990). As such, it fulfills the function of a grand jury proceeding.
The United States Supreme Court has held that when an error occurs in a grand jury proceeding, automatic reversal is not required where the accused has gone to trial and has been found guilty beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 70, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986). The Court explained:
“[T]here is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered whatever inconvenience, expense and opprobrium that a proper indictment may have spared him. In courtroom proceedings as elsewhere, ‘the moving finger writes; and, having writ, moves on.’ ” 475 U.S. at 71.
Other states have applied a harmless error standard when a defendant has been improperly bound over for trial after a preliminary hearing. See People v. Pompa-Ortiz, 21 Cal. 3d 519, 165 Cal. Rptr. 851, 612 P.2d 941 (1980); People v. Alexander, 663 P.2d 1024, 1025-26 (Colo. 1983); People v. Hall, 435 Mich. 599, 615-16, 460 N.W.2d 520 (1990). But see State v. Boyd, 214 Conn. 132, 141, 570 A.2d 1125 (1990) (holding that insufficient evidence at the preliminaiy hearing stage is a jurisdictional defect). As stated by the court in Hall: “To require automatic reversal of an otherwise valid conviction for an error which is harmless constitutes an inexcusable waste of judicial resources and contorts the preliminary examination screening process so as to protect the guilty rather than the innocent.” 435 Mich, at 614.
We hold that where an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.
In this case, Butler went to trial and was convicted by a jury of the crimes charged. At trial, the State presented sufficient evidence to establish that a conspiracy existed and that Butler was a part of this conspiracy. Therefore, even if the district court erred in binding Butler over for trial based on the hearsay statements of Greer, we hold that such error did not affect the subsequent proceedings and was therefore harmless.
MOTION FOR SEVERANCE
Butler contends that the district court erred in denying his motion for severance. Severance lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice. State v. Hunter, 241 Kan. at 632-33.
K.S.A. 22-3202(3) governs the disposition of defendant’s contention and provides that two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts consti tuting the crime or crimes. Two or more defendants may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment.
Some of the factors to be considered in determining whether there is sufficient prejudice 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 introducible 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.’ ” State v. Martin, 234 Kan. 548, 549, 673 P.2d 104 (1984) (quoting 75 Am. Jur. 2d, Trial § 20).
Butler contends that the videotaped and audiotaped statements of Anthony served to cause prejudice, even though his name was excised from the tapes. The problem with his argument is that the tapes are not part of the record on appeal. As a result, it is not possible to determine what effect the tapes might have had on the jury and whether they would have prejudiced the jury as to Butler.
HEARSAY STATEMENTS - KAREN RENEE GREER
Butler contends that the district court erred in admitting the testimony of Greer as to statements made to her by Anthony. This is essentially the same argument that Butler mates concerning Greer’s testimony at the preliminary hearing stage.
Once again, the State argued at trial that these statements were admissible under the coconspirator exception. Therefore, the question is whether the evidence adduced at trial, absent the hearsay statements, establishes some substantial factual basis for the existence of a conspiracy. We note that in order for a court to conclude that a factual basis for a conspiracy exists, the evidence must establish not only that there is a substantial basis for the existence of some conspiracy but that the conspiracy actually involved the defendant. See State v. Bird, 238 Kan. at 176.
Our review of the record indicates that earlier in the summer Butler and Anthony were attempting to persuade Jennifer Harmon to make a copy of the motel key for Anthony. Additionally, there is evidence that Butler copied a key to the motel that summer. Harmon also stated that sometime after the robbery she told Butler that he was going to get caught because he had left some fried chicken at the scene, to which Butler replied, “I didn’t take any chicken with me.” Furthermore, there is Butler’s own statement to Florence Thompson that he was involved in the murder in Salina.
Based on this evidence, we conclude that there was a substantial factual basis from which a reasonable person could infer that Butler was involved in a conspiracy with Anthony. Thus, the district court did not err in admitting the statements.
HEARSAY STATEMENTS - CODEFENDANT JUAN ANTHONY
Butler also argues that the district court erred in admitting other statements made by Anthony to others. He argues that because Anthony was a codefendant and did not testify, his statements were hearsay, and without this inadmissible hearsay there is little evidence to connect him to the crime.
Butler first complains that Lamar Williams was allowed to testify that he was the lookout man in the previous robberies. However, Butler did not object to that statement at trial. The objection he cites refers to comments contained in the audiotape of Anthony’s statement.
Buder also complains of statements made by Anthony to Jennifer Harmon concerning his participation in the prior robbery. However, these statements were made before the robbery and are admissible under the coconspirator hearsay exception. Butler further states that certain letters from Anthony to Harmon are inadmissible. However, these letters, which state that neither Anthony nor anyone else has said anything to the police, do not implicate Butler and are admissible, not for the truth of the matter asserted, but to show that more than one person was involved in the crime. We conclude that the complained-of evidence is not inadmissible hearsay.
JURY INSTRUCTIONS
Butler contends that the instructions below were erroneous and require reversal. When the defendant questions the giving of jury instructions, the standard of review is as follows: “ Tf jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.’ ” State v. DeVries, 13 Kan. App. 2d 609, 611-12, 780 P.2d 1118 (1989) (quoting Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 [1983]).
Butler complains of instructions on aiding and abetting because he was not charged with aiding and abetting. However, Butler’s objection at trial to these was based on his claim that the instructions were duplicitous. A party may not assign as error the giving or failure to give an instruction absent an objection to the instruction stating the specific grounds for the objection unless the instruction or failure to give the instruction was clearly erroneous. State v. Edwards, 252 Kan. 860, Syl. ¶ 3, 852 P.2d 98 (1993).
We have held that a trial court may give instructions on aiding and abetting even though the defendant was not charged with aiding and abetting. See State v. Mack, 255 Kan. 21, 30, 871 P.2d 1265 (1994). In this case, there was evidence that Butler aided and abetted Anthony in the commission of the crime.
Butler also argues that the court erred in giving Instruction 14, concerning intentional conduct, to the jury. He argues that the court should have given PIK Crim. 3d 54.01-A instead.
Instruction 14 states:
“In order for the defendants to be guilty of the crimes charged the State must prove that their conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent is a state of mind existing at the time a person commits an offense, and intent may be shown by act, circumstances and inferences deducible therefrom.
“Intent or lack of intent is to be determined or inferred from all the evidence in the case.”
Butler argues that the district court should have given PIK Crim. 3d 54.01-A, which states:
“In order for the defendant to be guilty of the crime charged, the state must prove that [his] conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent, is to be determined or inferred from all the evidence in the case.”
Butler contends that the court’s addition of the middle paragraph unduly supported the State’s theory of the case and was unnecessary.
“The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If tire particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, die trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. [Citation omitted.]“ State v. Dunn, 249 Kan. 488, 492-93, 820 P.2d 412 (1991).
We conclude that while the addition to the PIK instruction given was perhaps unnecessary, it was a correct statement of the law tailored to the facts of this case and was not prejudicial. The giving of this instruction, therefore, provides no basis for reversal of defendant’s convictions.
Butler also contends that jury Instruction 16 also prejudiced him. It stated:
“Evidence has been admitted tending to prove that some or all of the defendants committed crimes other than the present crime charged. This evidence must be weighed with respect to each defendant and may be considered solely for the purpose of proving each defendant’s plan, preparation, knowledge or identity.”
Butler’s argument is that the word “one” should have been substituted for the word “some.” He argues that this confused the jury into thinking that they had to find that more than one of the defendants committed crimes other than the present crime. However, the evidence showed that both Swafford and Anthony might have committed previous crimes. Therefore, the instruction fairly stated the evidence admitted.
Another instruction with which Butler finds fault is Instruction 16A, which defines conspiracy. Butler contends that he was never charged with conspiracy and, therefore, the instruction was prejudicial.
The court found that this instruction was required to give a reasonable explanation for the evidence which was admitted. The State argues that because it was using evidence under the conspiracy exception to hearsay, the instruction was required.
However, the determination of whether a conspiracy exists for puxpose of the hearsay exception rests with the judge not the jury. Therefore, the instruction on conspiracy was not necessary and was error. Nevertheless, the error was harmless. Although the juiy was instructed as to what constitutes a conspiracy, Butler fails to show how this information could have prejudiced the jury against him.
Finally, Butler argues that the jury should have been instructed separately as to each defendant. He argues that it was prejudicial for the jury to be instructed on crimes for which he was not charged. An examination of the instructions shows that a reasonable juror could not have been misled by the failure of the court to instruct separately.
READ-BACK OF TESTIMONY NOT REQUESTED BY JURY
As part of a request from the jury to read back certain testimony, the jury asked that the cross-examination by Butler’s counsel of Jennifer Harmon regarding chicken found at the scene be read back. Initially, the court indicated that the jury probably wanted both direct and cross-examination read-back. Defense counsel, however, objected to any reading back of the direct-examination. The following exchange between counsel and the court took place:
“The Court: Mr. Price [Defense Counsel] has an objection to reading of the direct testimony with regard to the chicken since, as I recall the jury’s note, [it] had only asked for the cross-examination regarding the chicken.
“Mr. Price: That’s a correct statement of my objection.
“[Prosecutor]: Judge, on a readback, to read tire direct and/or to read the cross and not the direct, doesn’t give, in my opinion, reflection back to the jury what the testimony relates to. If the request was to read the direct, I’m sure that the cross would have been read as well. I think the direct needs to be read in order for the cross to be understood.
“The Court: Well, I agree with counsel for the State on that one: that it’s a fairly brief testimony. It’s not going to be any onerous situation and I believe that the— die — to read one without the other would take it complete out of context and it— the objection will be noted for the record and overruled.”
We recently had an opportunity to address the issue concerning the trial court’s duty to read back testimony requested by a jury. In State v . Meyer, 255 Kan. 3, 872 P.2d 236 (1994), we held that the provisions of K.S.A. 22-3423 require the trial court to accede to a jury’s request to read back testimony. However, we also noted that the manner of acceding to such a request is subject to the trial court’s discretion. 255 Kan. 3, Syl. ¶ 1.
In Meyer, we reversed because the trial judge failed to respond to the jury’s somewhat confusing request for a read-back of certain testimony. We indicated in Meyer that the trial court’s response to the jury’s question was neither responsive nor helpful. 255 Kan. at 5. We further concluded:
“K.S.A. 22-3420(3) states that the testimony ‘shall be read.’ A trial court is required to accede to a jury’s request to read back testimony. We do not believe, however, that such a strict construction forecloses all trial court discretion as to the manner of acceding to the request. Both Ruebke and Redford are consistent in the view that the trial court has the discretion to control the read-back. The trial court is free to clarify the jury’s read-back request where the read-back request is unclear or too broad, or the read-back would jeopardize the manageability of the trial. Discretion rests with the trial court to clarify and focus the jury’s inquiry.” (Emphasis added.) 255 Kan. at 8.
In this case, the trial court complied with the provisions of K.S.A. 22-3420(3). It provided the jury with the precise information the jury had requested. In addition, the trial court read back additional testimony in the form of the direct examination concerning the same subject, which direct examination was not requested by the defendant. However, as the court noted, many times context requires reading of both direct and cross-examination concerning the same subject. Under the circumstances, we do not believe the trial court abused its discretion in providing the jury more information than the jury had requested.
Nothing in Meyer prevents the court from providing the jury with more information than is requested. Oftentimes, testimony read back out of context makes no sense, or may distort the meaning of the information, or in some instances, may mislead the jury. We leave these matters up to the sound discretion of the trial court. The information requested by the jury in this case was given to the jury in accord with K.S.A. 22-3420(3). We conclude that the decision of the trial court to place the testimony in context by reading back the direct examination on the same subject matter was not an abuse of discretion.
MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW TRIAL
The defendant’s motions for acquittal and new trial raise all of those issues that we have dealt with in the other nine allegations of error treated in this opinion. No independent analysis and resolution is therefore required.
SENTENCING
Butler argues that his sentences for felony murder and the underlying crime of aggravated robbery constitute double jeopardy. He argues that to be sentenced both for felony murder and for the underlying felony results in multiple punishments for the same offense. Accordingly, he asks us to vacate the sentence imposed.
This exact issue has twice been addressed by this court. In State v. Dunn, 243 Kan. 414, 433, 758 P.2d 718 (1988), we determined that conviction and sentencing for both felony murder and the underlying offense do not constitute double jeopardy. We reached the same result in State v. Gonzales, 245 Kan. 691, 706-707, 783 P.2d 1239 (1989) and State v. Bailey, 247 Kan. 330, 340, 799 P.2d 977 (1990), cert. denied 114 L. Ed. 2d 108 (1991).
Butler acknowledges our decisions in these cases but asks us to look anew at the situation. He argues that because the underlying felony is used to convict the defendant of first-degree murder, then all underlying felonies are lesser included offenses of felony murder. Butler’s argument is unpersuasive. We adhere to the rationale in Dunn, Gonzales, and Bailey.
SUFFICIENCY OF EVIDENCE
Butler’s final argument is that the evidence was insufficient to sustain his conviction.
“ “When the sufficiency of the evidence is challenged, the standard of review on appeal 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. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).” State v. Evans, 251 Kan. 132, 135-36, 834 P.2d 335 (1992).
Butler argues that when the inadmissible hearsay testimony is excluded, there is not sufficient evidence to sustain his conviction. However, as addressed above, the hearsay testimony was not improperly admitted. This testimony provides evidence from which a reasonable jury could have found Butler guilty beyond a reasonable doubt.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Terry C. Pilgreen, an attorney admitted to the practice of law in Kansas. The complaint filed in case No. B5823 was heard before a panel of the Kansas Board for Discipline of Attorneys. The essential facts, as determined by the panel, and the panel’s recommended discipline are not in dispute. Pilgreen has stipulated to the violations as alleged in the formal complaint and to the violations of the Model Rules of Professional Conduct as set forth in the complaint. Pilgreen and his counsel admitted and acknowledged the same before the panel.
Case No. B5823
The formal complaint charged:
“2. In July or August of 1991, the complainant, Larry M. Pollock, retained the respondent, Terry C. Pilgreen, to represent the complainant in an oil and gas problem. The complainant owned land in Pratt County, Kansas. He believed that the oil and gas leaseholder on the property was diverting gas from the lease without metering die amount diverted. The complainant requested that the respondent investigate this matter and take whatever action was necessary to cancel the lease if the allegations were true.
“3. In May of 1992, the respondent told the complainant that a case had been filed and that he had applied for a court date to have the matter heard. In October of 1992, the complainant came to Kansas to check on the matter and was told by the respondent that a court date was set for March of 1993. While in Kansas the complainant checked in Pratt County to see if the case was on the docket. No case was on the docket. The complainant called the respondent and was told that the action had been filed in Sedgwick County, Kansas. None of these statements made by the respondent to the complainant were true. At the time the statements .were made, no action had been filed on behalf of the complainant by the respondent.
“4. In March of 1993, the complainant called the respondent to ask when he needed to be in Wichita for the court proceedings. The complainant was informed by the respondent that the respondent had filed a Motion for Summary Judgment and that there would be no court appearance until the judge had ruled on the summary judgment motion. These statements made by the respondent to the complainant were also false. No action was filed on behalf of the complainant by the respondent.
“5. In September of 1993, the complainant retained a lawyer in the state of Washington to represent him in a matter involving the complainant’s parents. That lawyer contacted the respondent on three (3) separate occasions on behalf of the complainant requesting information to aid him in handling this matter. The respondent did not reply to these requests for information. In September of 1993, the complainant contacted the respondent requesting an update on the legal matter in Kansas. The respondent never replied to this request for information from the complainant. In November of 1993, the complainant filed this complaint with tire Disciplinary Administrator’s Office. On February 16,1994, an action was filed on behalf of the complainant by an attorney in the firm of Woodard, Blaylock, Hernandez, Pilgreen & Roth. The respondent was a member of that firm at the time of the events alleged in this Formal Complaint.
“6. The respondent never filed an action on behalf of the complainant. The respondent misled the complainant about the status of the complainant’s case and did not properly communicate with the complainant. The respondent was dilatory in handling the complainant’s case.”
The Disciplinary Paners Final Report
The following pertinent findings and recommendations were made by the panel:
“FINDINGS OF FACT
“Due to the fact the parties are all in agreement as to the facts alleged in the complaint and the respondent has stipulated that he violated tire model rules of professional conduct by clear and convincing evidence, the panel, therefore, finds that the respondent has violated the model rules of professional conduct.
“The panel finds that respondent is an attorney at law practicing in Wichita, Kansas. The panel further finds that the facts of this complaint against the respondent are as set out in the formal complaint on file herein and that the panel accepts said facts as set out in tire formal complaint as respondent’s violations of the model rules of professional conduct.
“This complaint arose out of respondent being retained to represent the complainant in an oil and gas problem and the complainant requested that respondent investigate the matter and take whatever legal [action] was necessary to cancel an oil and gas lease.
“The respondent informed the complainant that a lawsuit had been filed concerning this lease and respondent further informed complainant that certain court dates had been set concerning this lawsuit. In fact, no lawsuit had been filed by respondent and the statements made concerning the same were untrue and respondent misinformed the complainant about the lawsuit and did not properly handle complainant’s lawsuit.
“Therefore, the panel finds that by clear and convincing evidence respondent has violated the following rules of professional conduct:
“(a) MRPC 1.1 [1994 Kan. Ct. R. Annot. 292] [competence] - in that the respondent failed to represent a client with the regular knowledge, skill, thoroughness and preparation reasonably necessary for this legal representation.
“(b) MRPC 1.3 [1994 Kan. Ct. R. Annot. 297] [diligence] - in that the respondent failed to act with reasonable diligence and promptness in representing a client.
“(c) MRPC 1.4 [1994 Kan. Ct. R. Annot. 302] [communication] - in that tire respondent failed to keep a client reasonably informed about the status of a matter and failed to properly comply with reasonable requests for information.
“(d) MRPC 8.4(c) [1994 Kan. Ct. R. Annot. 379] [misconduct] - in that the respondent engaged in conduct involving deceit and misrepresentation.
“FINDINGS OF FACT OF AGGRAVATION OR MITIGATION
“The following facts were shown to the panel in aggravation or mitigation and were considered by the panel in its recommendation:
“1. The only fact in aggravation as shown to the panel was a prior disciplinary complaint against the respondent with Docket No. B5522 in which the complaint was to the effect that tire estate of the complainant’s father was still open three years after commencement of estate proceedings. The respondent was given an informal admonition on December 22,1992.
“In mitigation it is shown to the panel the following:
“2. That there was complete absence of any dishonest or selfish motive in this particular incident on the part of the respondent.
“3. That the respondent had some personal and emotional problems which contributed to the violation of the [rules] of professional [conduct],
“4. That there has been no monetary damage to the complainant and in fact the respondent is paying the legal fees for the lawsuit that has been filed on behalf of complainant, which was the lawsuit that respondent failed to file which was the basis for this complaint.
“5. That respondent has a good reputation and good character in the community as shown by letters from his fellow attorneys.
“6. That the respondent shows proper remorse for the incident in question and has cooperated with the Disciplinary Administrator.
“7. That at the time of the violation respondent was having marital difficulties and was having trouble with his law practice to the effect that he had gotten into a depressive state and was having problems in handling certain matters.
“Respondent further testified that he has been and is now seeking help from Dr. R. Bruce Woods, Ph.D. a therapist practicing in Wichita, Kansas, and has received a great deal of help from Dr. Woods. Respondent has further testified that he is now presently practicing in an office arrangement with several other attorneys, including Harker E. Russell and Mel Gregory of Wichita, Kansas [and tjhat all of the other attorneys with whom the respondent’s office arrangements are with are aware of die respondent’s troubles with the disciplinary board.
“Respondent has further testified that he has made arrangements with Mel Gregory to supervise his legal files hereafter.
“The respondent further testified that he has made arrangements to make payment of all of the fees involved witii the legal action for die complainant which was the basis for this complaint.
“Respondent further states that he is willing to repay the complainant the sum of $341, which is the cost of airfare for the complainant to appear at die first set hearing on this matter which was cancelled at the request of the respondent.
“RECOMMENDATION
“1. That the respondent be suspended from the practice of law for a period of one year, and that the respondent be placed on probation during that period of time.
“2. That said term of suspension shall be suspended under the following terms and conditions:
“(A) That attorney Mel Gregory supervise respondent’s legal practice and files for the period of probation and diat Mr. Gregory shall submit a report every two months to the Disciplinary Administrator as to the respondent’s legal practice and legal files.
“(B) Itis further recommended that attorney Mel Gregory give an initial review of the legal files of respondent and give a report to the Disciplinary Administrator of the condition of these legal files.
“(C) That further respondent continue his treatment with Dr. Bruce Woods, therapist, Wichita, Kansas, and that Dr. Woods submit a report to the Disciplinary Administrator every three months as to the progress of the respondent.
“(D) That the respondent pay all of the attorney fees and any other costs that the complainant may have in the legal action which is now pending and which was the subject matter of this complaint. That further the respondent repay to the complainant the costs of the air fare that complainant incurred as a result of his purchasing an airline ticket to testify at the first scheduled hearing in this matter, which was postponed at the request of the respondent, said costs of airfare tickets being in the sum of $341.
“(E) That at tire end of the probation period the Disciplinary Administrator shall certify to the Supreme Court the respondent’s satisfactory or unsatisfactory completion of the probation period. That the respondent has submitted the above plan of penalties and supervision with the panel and that the Deputy Disciplinary Administrator for the Kansas Board for Discipline of Attorneys recommends that the panel accept the proposed plan.
“(F) That respondent pay the costs of these proceedings.”
Pilgreen takes no exception to the findings and recommendations of the panel.
We find there is clear and convincing evidence establishing the violations found and enumerated by the panel.
We adopt the findings and recommendation of the panel as modified.
It Is Therefore Ordered that imposition of discipline against respondent Terry C. Pilgreen, be suspended and he is placed on probation for a period of 12 months in accordance with Supreme Court Rule 203(a)(5) (1994 Kan. Ct. R. Annot. 189), on the terms and conditions as hereinafter set out.
1. Attorney Mel Gregory will supervise respondent’s probation and supervise his practice for a period of one year from the date of this order.
2. Mr. Gregory shall be acting as an officer of the court and as an agent of the court as supervisor of probation in monitoring the legal practice of respondent.
3. Mr. Gregory shall be afforded all immunities granted by Supreme Court Rule 223 (1994 Kan. Ct. R. Annot. 229) during the course of his activities as directed by this order. Respondent will allow Mr. Gregory access to his files, his employees, his trust account, and his doctors. Mr. Gregory shall act periodically at such intervals as he deems appropriate, as directed by the Disciplinary Administrator, and check the following: (a) the status of each case on respondent’s case list; (b) respondent’s docketing system; (c) respondent’s management of discovery; (d) respondent’s responses to clients’ requests for information; (e) respondent’s trust account; and (f) the views of the local judges as to their evaluation of respondent’s performance. Mr. Gregory shall conduct an initial review of respondent’s legal files and report to the Disciplinary Adminis trator on the condition of the files. He shall also submit a report to the Disciplinaiy Administrator every two months thereafter on the condition of respondent’s files and legal practice. Any material deviation from proper practice shall be immediately reported to the Disciplinary Administrator.
4. At the end of one year, the Disciplinary Administrator shall certify to the Supreme Court if the respondent’s probation has been completed satisfactorily.
5. Respondent shall continue counseling as recommended by Dr. Bruce Woods, Wichita, Kansas, and shall furnish reports of that treatment to the Disciplinary Administrator’s office at such times and intervals as established by the Disciplinaiy Administrator. Alternative professional therapists may be substituted for Dr. Woods upon approval of the Disciplinary Administrator.
6. Respondent shall pay all of the attorney fees and any other costs that the complainant may have in the legal action which is now pending and which was the subject matter of this complaint. Further, the respondent shall repay to the complainant $341, which is the cost of the air fare that complainant incurred as a result of his purchasing an airline ticket to testify at the first scheduled hearing in this matter, which was postponed at the request of the respondent.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent. | [
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The opinion of the court was delivered by
Abbott, J.;
This is a direct appeal by the defendant, Daniel R. Hopkins, from his convictions for rape and aggravated criminal sodomy. One issue is raised on appeal. The defendant claims juror misconduct.
The facts underlying the offenses are not significant to the issue on appeal. The defendant claimed consent and the victim denied she consented. The defendant was sentenced to concurrent sentences of 12 years to life for each of the convictions.
Apparently, a juror, Lariy Wait, started visiting the defendant in jail after the trial and established a bond with the defendant through prayer. Wait then contacted the defendant’s lawyer, went to the lawyer’s office, and signed the following affidavit:
“I, Larry E. Wait, of lawful age, being first duly sworn, states that:
1. The affiant was a juror selected to hear die case entided State of Kansas v. Daniel R. Hopkins, Shawnee County District Court, Case No. 92-CR-2639.
2. That affiant was present in die courtroom during the entire voir dire process.
3. That affiant failed to disclose to counsel for die parties about his ex-girlfriend being raped despite questioning from botii counsel concerning whether any prospective jurors had any close friends, relatives or otiiers who had been raped.”
The defendant then filed a motion for a new trial or, in the alternative, to set aside the jury’s verdict.
A hearing was held on the motion. The defendant presented no evidence and relied on the affidavit of Larry Wait. The defendant argued that he was denied a fair and impartial jury and that had Wait stated an ex-girlfriend had been raped, the defendant could have developed more facts and he “might have” used a peremptory challenge to exclude Wait from the juiy panel.
The trial court ruled that the question was one of juror misconduct and whether the juror wrongfully answered a question asked of the juror. The court indicated from its reading of a transcription of voir dire that while some prospective jurors were asked if they knew any person who had been raped, that question was not asked to each individual venireperson (and not to Larry Wait), nor was it ever asked to the panel as a whole. Rather, the only questions asked of the panel by defense counsel were whether anyone had been the victim of a crime or a complainant, defendant, or witness in a criminal case, or whether a family member had been a complainant or a witness in a criminal case. The court stated, “In essence, there were no questions on the panel for which he in my judgment would be required to respond to.” The court also pointed out that when Wait was asked by the prosecutor whether there was anything that stuck out in his mind that he wanted to talk about, Wait indicated that he had no concerns; if Wait had some concerns after the fact, he would in essence be impeaching his own verdict. The court concluded, “[T]here is no false declaration in the record or even the opportunity to make one. So I don’t think there’s jury misconduct here.”
The State argues on appeal that defendant’s motion was not timely filed. The State made the same argument in the trial court. The trial court ruled the motion was timely filed, and the State did not cross-appeal from the trial court’s ruling. Thus, the issue is not before this court.
The granting of a new trial is a matter which lies within the sound discretion of the trial court, and appellate review of a trial court’s decision denying a new trial is limited to whether the trial court abused its discretion. See Taylor v. State, 251 Kan. 272, 277, 834 P.2d 1325 (1992).
The defendant refers this court to K.S.A. 22-3423(l)(e), which permits the trial court to grant a mistrial if a juror’s false statement during voir dire prevents a fair trial. This court has stated that “[j]uror misconduct in civil and criminal cases is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof.” State v. Cady, 248 Kan. 743, 756, 811 P.2d 1130 (1991).
The first question for this court to determine is whether juror misconduct occurred. The trial court here found that juror misconduct did not occur because Wait was not asked a question to which he was required to respond with the information about his ex-girlfriend. This court will affirm the trial court’s finding if it is supported by substantial competent evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
The record clearly shows that Wait was never directly asked if he knew anyone who had been raped. This does not mean there were no questions he was required to respond to. A careful reading of the transcript reveals that a very alert potential juror sitting in the courtroom during the questioning of the panel and other potential jurors would have realized counsel was interested in whether a potential juror knew a rape victim.
However, Wait did not make a false statement or give misleading information. He was asked if he had heard everything that had occurred. He was not asked if he would have responded to any of the questions asked of other potential jurors. What he was asked by the prosecution was: “Is there anything or something that sticks out in your mind that you want to talk about?”
Based on that question, the defendant asked the trial judge to find that juror misconduct occurred. During voir dire defendant’s counsel asked no questions of this juror in the general area complained of. Potential jurors are not required to be mind readers. Juror misconduct must be based on more than the failure to volunteer information a potential juror speculates or surmises is important to counsel. The trial judge did not err in finding there was no juror misconduct.
In addition, we would observe that the defendant did not use a peremptory challenge to exclude any other juror who had prior experiences with rape. One venireperson was excused for cause at the defendant’s request after stating she could not be impartial because of her prior experiences with rape victims. Of the 12 jurors who tried this case, four had prior experiences with rape: One juror was herself the victim of rape, one had a cousin who had been raped, one had a friend who had been raped, and one had contact with rape victims through work. Therefore, the record does not support an inference that the mere fact of Wait’s ex-girlfriend’s prior rape would have led the defendant to exercise a peremptory strike to excuse Wait from the jury.
Nothing in the record before us shows that the verdict in this case was rendered by other than a fair and impartial jury or that the trial judge abused his discretion in denying the defendant’s motion for a new trial.
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The opinion of the court was delivered by
Davis, J:
Defendant Joel D. Butler was convicted of felonymurder and aggravated robbery. His convictions were affirmed in our original opinion filed June 3,1995. State v. Butler, 257 Kan. 1043, 897 P.2d 1007 (1995). On June 30,1995, the defendant timely filed a motion for rehearing pursuant to Supreme Court Rule 7.06 (1995 Kan. Ct. R. Annot. 43).
Butler was tried before a jury in a joint trial with codefendants Juan Anthony and Artis Swafford. During the trial, a statement made by Anthony was introduced into evidence after being redacted to exclude the names of Butler and Swafford. Both before and during the trial, the defendant argued that his trial should be severed from that of Anthony. One of his arguments centered around the videotaped and audiotaped statement made by Anthony. However, we stated:
“The problem with [defendant’s] argument is that the tapes are not part of the record on appeal. As a result, it is not possible to determine what effect the tapes might have had on the jury and whether they would have prejudiced the jury as to Butler.” 257 Kan. at 1063.
After our decision in this case, defendant filed a motion to add to the record State’s exhibits number 84 (videotape), 85 (audiotape), and 86 (redacted transcript of Anthony’s statement). In his motion for rehearing, counsel acknowledges that it was an oversight not to insure that the exhibits were a part of the record on appeal but contends that the oversight was reasonable. He, along with counsel for the State and Swafford’s counsel, was under the impression that Exhibit 86 had been made a part of the record on appeal.
There was confusion concerning Exhibit 86. In support of the motion to add to the record on appeal, counsel attached an affidavit of the Saline County deputy district court clerk. The deputy clerk acknowledged that it was the policy of the clerk to send all paper exhibits to the appellate courts when sending the record forward. Had this policy been implemented, the redacted transcript of Anthony’s statement would have been included in the record on appeal.
It is apparent that counsel for defendant, as well as counsel for Butler and counsel for the State, relied upon the original record in preparing for this appeal. At that time, the missing exhibits were included in the record. These exhibits were used by all parties and referred to by all parties in preparation of their briefs on appeal.
We decided this case on June 13,1995. The deputy clerk in her affidavit noted that as of June 29, 1995, the clerk’s office had not been able to locate the redacted transcript of codefendant Anthony’s statement. Apparently this exhibit was mailed to a party by the clerk’s office and later returned by that party to the clerk’s office. In response to the defendant’s motion for rehearing and his request for additions to the appellate record, this court on August 30,1995, entered the following order:
“The Clerk of the Saline District Court is hereby ordered to transmit exhibit 84 (video tape), exhibit 85 (audio tape), and exhibit 86 (transcript) to the Clerk of the Appellate Courts.”
We adhere to the well-established rule that an appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails. However, because the record used by the parties to prepare their appeal to this court contained the missing exhibits and because of the real confusion based on the clerk’s actions in this case, we now grant the defendant’s motion for additions to the appellate record. Exhibit 84 (videotape), Exhibit 85 (audiotape), and Exhibit 86 (transcript) all relating to Anthony’s statement admitted into evidence in the joint trial, are hereby made a part of the appellate record in this case.
The defendant raises three issues in his motion for rehearing: (1) the issue of severance; (2) the finding of the court that the error at the preliminary hearing was harmless; and (3) the finding of the court that the instruction to the jury regarding conspiracy was harmless error. We grant the defendant’s motion on his first issue only insofar as it relates to the issue of whether the admission into evidence of the redacted transcript of Anthony’s statement violated the defendant’s right of confrontation under the rule announced in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). In all other respects on this first issue and on issues two and three, we deny the defendant’s motion for rehearing.
In his first issue, the defendant argues that his motion to sever should have been granted for the reason that Anthony’s statement constituted evidence which would not have been admissible against him in a separate trial. In State v. Martin, 234 Kan. 548, 673 P.2d 104 (1984), we addressed the usual grounds for severance. One of the usual grounds for severance is that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the juiy. 234 Kan. at 549.
While there may have been grounds to sever had not the trial court chosen to redact Anthony’s statement, the court chose not to sever based upon its determination that the taped statement would not implicate the defendant if redacted. Had Anthony’s statement been properly redacted so as not to implicate the defendant, there would have been no problem. At the time of the motion, the district court expected this redaction to be done properly. As a result, the trial court did not err in denying the defendant’s motion to sever. It should be noted that the redacted statement was admitted without objection.
Having determined that the trial court did not err in denying the motion to sever because the court expected the statement to be properly redacted, we must answer the next crucial question of whether the redaction was so ineffective that the statement, as redacted, violated the rule established in Bruton.
The defendant’s counsel argues that this court was provided with sufficient facts to allow it to review the merits of the defendant’s contention that the admission of the redacted statement violated Bruton, 391 U.S. 123, and severely prejudiced the defendant. Counsel correctly points out that the issue was briefed by both parties and argued before this court on appeal. We, therefore, do not deem it-necessary to hear further argument or to grant appellant additional time to respond.
As stated above, the question we now consider is whether the admission of Anthony’s redacted statement into evidence at the joint trial of the defendant violated the Bruton rule and prejudiced the defendant. The State argues on appeal that because the defendant did not object to the admission of the redacted transcript at trial, he cannot now complain on appeal.
The Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of a criminal defendant to be confronted with the witnesses against the defendant, including the right to cross-examine those witnesses. Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). An accused’s right to confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial. Bruton, 391 U.S. at 137; State v. Rodriguez, 226 Kan. 558, Syl. ¶ 1, 601 P.2d 686 (1979). However, the extrajudicial statement of a nontestifying codefendant may be admitted into evidence if it is redacted to eliminate inculpatory references to the other defendant unless the redaction distorts the statement. State v. Rakestraw, 255 Kan. 35, Syl. ¶ 2, 871 P.2d 1274 (1994).
We have held that redaction of a confession is proper if any suggestion of a codefendant’s involvement in the crime charged can be eliminated from the statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. State v. Hutchison, 228 Kan. 279, 282, 615 P.2d 138 (1980). As we stated in State v. Porter, Green & Smith, 228 Kan. 345, 350, 615 P.2d 146 (1980):
“It is unreasonable to assume that in all cases the mere deletion of a defendant’s name from a codefendant’s incriminating statement is going to protect the complaining defendant from being implicated in the minds of the jury, when the statement refers to other participants in the crime and the other defendants are sitting at the same counsel table charged with the same crimes.”
In this case, Anthony’s statement constituted a confession to the crimes charged. He admitted killing the night clerk at the Mid-America Inn in Salina and taking money from the motel safe during the early morning hours of August 10,1992. While he claimed sole credit for killing the night clerk in his statement, he mentions the names of the defendant and Swafford as participants with him in the crimes charged. Prior to trial, the defendant and Swafford had moved for separate trials based in large part on Anthony’s statement. The motion was denied based upon the court’s ruling that it would handle this problem by redaction of Anthony’s statement.
The videotape played before the jury was a typed transcript of the conversation (confession) between Anthony and Lamar Williams, with the names of the defendant and Swafford redacted. The text was in white lettering against a blue background. At the same time the jury was viewing the video transcript, an audio recording of the conversation was played to the jury. While the State possessed a videotape of the Lamar Williams-Anthony conversation, its quality was poor and this video was not shown to the jury. The defendant contends that the trial record supports a conclusion that he objected to the admission of Anthony’s redacted statement in his extensive arguments that he should be granted a separate trial.
The record is clear. The defendant did not object to the admission of Anthony’s confession at trial on the grounds raised on appeal or on the grounds now raised in his motion for rehearing. Moreover,the defendant did not object to the method of redaction used. However, the defendant’s and Swafford’s names were deleted from Anthony’s confession with blank spaces and underlining left showing. This method of redaction presents a serious constitutional problem under the Sixth Amendment to the United States Constitution.
In the case of United States v. Lane, 883 F.2d 1484, 1501 (10th Cir. 1989), the court found that there was no Bruton error based primarily on the fact that defendant had stipulated to the specific form of redaction. In addition, the court added that the defendant failed to object to the admission of the statement at trial. Thus, after concluding that the admission of the statement did not constitute plain error, the court affirmed. While the failure to object to the form of redaction or stipulating to the form of redaction may not preclude a claim of error on appeal in this case, the record must be viewed with this fact in mind.
Counsel suggests that because the alleged error is one of constitutional magnitude, we should, in the interest of justice, disregard not only the failure to object to the admission of the confession into evidence, but also ignore the failure of the defendant to object to the method of redaction. We note that had an objection been made at the time, further action could have been taken to explore other forms of redaction which would have been less suggestive with reference to the ultimate question of whether the defendant participated in the crimes charged. Under the circumstances of this case, it may very well be said that the defendant waived his constitutional right of confrontation based on his failure to object to the admission of Anthony’s confession in its redacted form and further based on his failure to object to the form of redaction. However, because we deal with the defendant’s Sixth Amendment right of confrontation, a fundamental consideration in determining whether the defendant received a fair trial, we elect to resolve the question on its merits.
Bruton, decided in 1968, held that in a joint trial, the admission of a nontestifying codefendant’s extrajudicial statement implicating the defendant violates the defendant’s rights under the Confrontation Clause even if the judge instructs the jury to disregard the statement in determining the defendant’s guilt or innocence. 391 U.S. at 126. (See Williams, The Honest Consequences of Bruton and the Dishonest Consequences of the Redaction Exception, 28 Grim. L. Bull. 307, for a comprehensive treatment of the redaction problem under Bruton). The Supreme Court concluded that the nature of some evidence is so “powerfully incriminating” that it overrules the prevailing presumption that a jury will follow instructions:
“[S]ome contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations omitted.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36.
While the conversation between Lamar Williams and Anthony is not a typical post-arrest confession, Bruton applies to any extra judicial statement by a nontestifying codefendant. Bruton applies to a statement made in a noncustodial setting as well as to a statement made to other coconspirators if, as in this case, such statement is not made during the life of, and in furtherance of, the conspiracy. When the statement incriminates the defendant and the defendant is not able to cross-examine the declarant, the admission of the statement violates the Confrontation Clause. See United States v. Avery, 760 F.2d 1219, 1223 (11th Cir. 1985), cert. denied 474 U.S. 1055 (1986).
In the case of Richardson v. Marsh, 481 U.S. 200, the United States Supreme Court acknowledged that by redacting an incriminating statement made by a defendant, the government may be able to convert a statement from one that violates the Bruton rule to one that passes the Bruton test. The Court expressly authorized redaction as an exception to Bruton, holding that the admission of a nontestifying codefendant statement into evidence at trial does not violate the Confrontation Clause if the court gives a proper limiting instruction and redacts the codefendant’s statement to eliminate not only the defendant’s name, but any reference to his or her existence. 481 U.S. at 211. The Court further held that even though such statement incriminates the defendant when linked with other evidence admitted during the trial, this inferential incrimination does not make an otherwise admissible statement inadmissible so long as the statement is not incriminating on its face. 481 U.S. at 208-11.
Although we believe that the resolution of the question is a close one, we conclude for the reasons set forth below that the admission of Anthony’s confession into evidence under the facts of this case violated the constitutional principles set forth in United States v. Bruton. The question is close because Anthony’s statement, standing alone, does not appear to directly incriminate Butler and Swafford. On its face, the statement removes the names of Swafford and Butler. However, the method of redaction in this case, by simply leaving a blank space in place of the names removed, makes it obvious to the jury that the statement was redacted and that the nontestifying defendant knows the true identity of the person or persons referenced in the statement.
The objeet of redaction is not only to eliminate the name of the defendant, but also to eliminate any reference to his or her existence. See Richardson v. Marsh, 481 U.S. at 211. While there may be an argument that the method chosen in this case eliminated any reference to Swafford’s and the defendant’s existence, the blank spaces with underlining suggested that others participated in the crimes charged. All three were being tried jointly for the crimes charged. Without the benefit of any other evidence, the blanks suggested to the jury that the others were the defendant and Swafford.
Had another method of redaction been chosen, the result might have been different. For example, had the statement been redacted to remove Swafford’s and the defendant’s names and all reference to their existence by removing a sentence or paragraph where their names appear so as not to leave blanks, the result might have been different. The question to be asked in each case is whether thé redacted statement admitted eliminated not only the defendant’s name, but also any reference to his or her existence. If the codefendant’s redacted statement, standing alone without consideration of any other evidence, does not directly incriminate the complaining defendant, Bruton is not violated even when other admissible evidence indirectly implicates the defendant.
Our conclusion that Bruton was violated does not necessarily mandate reversal, for a Bruton violation is subject to the harmless error rule of Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). See Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969). In Schneble v. Florida, 405 U.S. 427, 430, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972), the United State Supreme Court stated: “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” This court has said that an error of constitutional magnitude, although serious, may be held harmless if the appellate court is willing to declare beyond a reasonable doubt it had little, if any, likelihood of chang ing the result of the trial. State v. Johnson-Howell, 255 Kan. 928, 944-45, 881 P.2d 1288 (1994).
Anthony’s conversation with Lamar Williams amounts to a confession to the robbery and the brutal murder of the night clerk. Anthony makes it clear in his statement that he and he alone murdered the night clerk. The blank spaces and sentences in which they appear suggest that others participated in the crimes charged. The question in our harmless error analysis is, then, what other evidence in the record establishes that the defendant and Swafford participated in the crimes charged.
The following evidence, properly admitted during trial, bears upon the question of the defendant’s participation in the crimes charged. The jury was informed through the testimony of Renee Greer that on the night the robbery and murder were committed, Anthony told her that he, the defendant, and Swafford were going to rob a motel and kill the night clerk by shoving a sharp object down the night clerk’s throat. Greer testified that Anthony showed her the key they were going to use to get into the motel. Before Anthony left for the robbery, she saw some walkie-talkies and Anthony showed her a sharp object which looked like a nail file. However, she testified that the object was not the letter opener found in the victim’s body.
Greer’s conversation with Anthony occurred at approximately 2:30 a.m. on August 10, 1992, the morning of the robbery and murder. Witnesses for the State established that Oliver Bigler, the night clerk at the Mid-America Inn, was alive at 2 a.m. The motel was robbed and Bigler was murdered during the early morning hours of August 10, 1992. The police arrived at the scene at 5:30 a.m., discovering the robbery and Bigler’s murder. An autopsy performed on Bigler’s body indicated that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in the right ear canal.
The morning after the robbery and murder, the police searched Anthony’s residence and found a battery-operated walkie-talkie inside an empty dog food bag in a trash can. The antenna of the walkie-talkie had been broken off. The walkie-talkie’s casing was broken and there were hair and carpet fibers on it. An expert tes tified that the antenna piece found at the crime scene matched the piece of the antenna found on the walkie-talkie in Anthony’s trash can.
Prior to the robbery and murder, Anthony had a conversation with Lamar Williams. Williams was a confidential informant working with the Salina Police Department. According to Williams, Anthony told him that he, Butler, and Swafford were going to rob the motel and kill the clerk. Anthony asked him to participate in a robbery and murder at a motel.
Jennifer Harmon, an employee of the Mid-America Inn who was also implicated in the crime, stated that at one time she gave Anthony and the defendant a ride to Junction City. On the trip, Anthony asked her to get him a copy of the key to the motel. The defendant also encouraged her to get the key for Anthony. Eventually, she agreed to leave the key where Anthony could pick it up and copy it. Chad Johnson, a worker at Aleo, testified on behalf of the State that during the summer of 1992, he copied a key for the defendant.
Harmon also testified that 2 days after the robbery and murder she went to Anthony’s house. The defendant arrived, and Harmon told him that they were all going to get caught for the motel robbery and murder. She mentioned that the defendant had left some fried chicken at the crime scene, and the defendant stated, “I didn’t take any chicken with me.” The defendant told her that he was not going to say anything and that if she and Anthony said nothing, no one would find out.
Florence Thompson, a friend of the defendant, testified at trial concerning a conversation she had with the defendant a few days after the crimes. While visiting her at her residence, the defendant told her that the police were looking for him and that he was involved in the murder in Salina. She testified that she thought he was joking until a news flash appeared on television indicating that police were in fact looking for the defendant. She then convinced the defendant to turn himself in, and she accompanied him to the police station.
Under these circumstances, the evidence, including the defendant’s own admissions, presented overwhelming evidence that he in fact participated in the commission of the crimes charged. We conclude that the admission of Anthony’s statement, while error, was harmless beyond a reasonable doubt. By this opinion, we modify our previous opinion in State v. Butler, 257 Kan. 1043, 897 P.2d 1007 (1995) and affirm.
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The opinion of the court was delivered by
Holmes, C.J.:
This is an interlocutory appeal, pursuant to K.S.A. 60-2102(b), by the defendant in a medical malpractice action from the district court’s order denying his motion for summary judgment. Defendant timely filed a notice of appeal to the Kansas Court of Appeals. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c). We affirm the district court.
The facts are not in dispute. On September 20,1988, Scott Clayton See, the plaintiff, underwent an elective vasectomy performed by Dr. James Hartley, the defendant. On April 17, 1989, the plaintiff’s left testicle was removed due to post-surgical complications.
On September 13, 1990, plaintiff filed a memorandum with the district court requesting that a medical malpractice screening panel be convened to determine whether Dr. Hartley had departed from the standard of practice required of a health care provider in his care and treatment of the plaintiff. See K.S.A. 65-4901 et seq. On September 18, 1990, the district court issued an order directing that a screening panel be convened. The panel issued its recommendations on May 22,1991. Following the issuance of the panel’s recommendations, it was determined that the panel had been improperly constituted. On June 14, 1991, the district court set aside the panel’s recommendations and convened a second panel.
On August 20, 1992, the second panel issued its recommendations, finding that the defendant did not depart from the applicable standard of care in his performance of the vasectomy but that he “probably did breach a duty to inform” the plaintiff that the loss of a testicle or chronic pain were possible side effects.
Plaintiff commenced a medical malpractice action against defendant on September 16, 1992. On February 17, 1993, plaintiff’s motion to voluntarily dismiss the action without prejudice was granted. On August 16, 1993, plaintiff commenced the instant action involving the same claims set forth in the initial suit.
On January 28, 1994, defendant filed a motion for summary judgment, contending that plaintiff’s cause of action was filed outside the applicable limitations period. The district court denied defendant’s motion. The sole issue before this court is whether the plaintiff may voluntarily dismiss his lawsuit and refile it within the six-month savings period provided by K.S.A. 60-518, but after the expiration of the four-year period provided by K.S.A. 60-513(c).
Resolution of the issue involves the interpretation and interaction of three statutes. First, K.S.A. 60-513, entitled “Actions limited to two years,” states in pertinent part:
“(a) The following actions shall be brought within two years:
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.
“(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
The second statute, K.S.A. 60-518, entitled “New action, when,” states:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.” (Emphasis added.)
Finally, K.S.A. 65-4908 provides:
“In those cases before a screening panel which have not been formalized by filing a petition in a court of law, the filing of a memorandum requesting the convening of a screening panel shall toll any applicable statute of limitations and such statute of limitations shall remain tolled until thirty (30) days after the screening panel has issued its written recommendations.” (Emphasis added.)
At the outset, we reiterate certain well-established rules and principles of statutory interpretation applicable to issues such as the one now before this court.
“The interpretation of a statute is a question of law. The function of the court is to interpret the statute, giving it the effect intended by the legislature. [Citation omitted.] The cardinal rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature govern when the intent can be ascertained from the statute. [Citations omitted.]” State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
“When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
“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. When the provisions of two or more acts affect the same issue and subject matter, the same rule applies.” McMillen v. U.S.D. No. 380, 253 Kan. 259, Syl. ¶ 7, 855 P.2d 896 (1993).
Defendant contends that the district court erred in denying his motion for summary judgment. Specifically, defendant maintains that K.S.A. 60-513(c) is a statute of repose which abolished the instant action following plaintiff’s voluntary dismissal of his suit. Defendant reasons that because 60-513(c) is a substantive statute, it is controlling over 60-518, which is a savings statute and procedural in nature. He argues application of the savings statute would have the effect of reactivating a cause of action that was extinguished under the repose statute.
Plaintiff presents several arguments in support of his contention that the instant suit was filed within the proper limitations period. First, he argues that 60-518 governs over 60-513(c), regardless of whether the latter statute works as a statute of limitations or a statute of repose. Alternatively, he argues that the four-year limitation period in 60-513(c) was tolled under the medical malpractice screening panel tolling provision in 65-4908.. Last, he maintains that because defendant failed to object to his motion for voluntary dismissal without prejudice of his initial suit, defendant has waived any right to complain about the application of the savings provision in 60-518.
In denying defendant’s motion for summary judgment, the district court, without explanation of its reasoning or rationale, determined that the plaintiff had timely filed the instant action “by operation of K.S.A. 60-513(c), together with K.S.A. 60-518, the saving statute.”
Defendant’s principal argument is that 60-513(c) is a four-year statute of repose which abolished plaintiff’s cause of action upon the voluntary dismissal of plaintiff’s initial suit. Defendant maintains that a statute of repose is a substantive provision which may not be waived, tolled, or subjected to a savings or renewal statute such as 60-518. Defendant relies primarily upon this court’s opinion in Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992).
In Harding, the issue under consideration was whether the appellee’s cause of action was timely filed within the applicable lim itation period. The specific issue for determination was the constitutionality of K.S.A. 1991 Supp. 60-3303 insofar as such statute operated to revive the plaintiff’s cause of action which had been time-barred. In examining this issue, the court was called upon to construe both the 2-year limitation period in 60-513(a) and the 10-year limitation period in K.S.A. 60-513(b). The operative language of 60-513(b) considered in Harding is identical to that in 60-513(c), except the first provides a 10-year period of limitation while the latter provides only a 4-year period.
In Harding, the plaintiff, as executrix of her husband’s estate, brought a tort action against the defendant based upon allegations that Jerry Harding, a painting contractor, died from malignant pleural mesothelioma as a result of using products containing asbestos purchased from the defendant. The decedent’s last exposure to the products was January 1, 1977. Jeriy Harding died October 26, 1988, and suit was filed September 5, 1990. The defendant sought summary judgment based upon the expiration of the 10-year limitation period in 60-513(b), while the plaintiff claimed the action was timely filed under 60-513(a). Summary judgment was denied, and defendant filed an interlocutory appeal, as in the present case. We affirmed the district court.
While the controlling issue in Harding was the constitutionality of the retroactive provisions of the 1990 amendment to K.S.A. 60-3303 of the Kansas Product Liability Act, this court considered it important to recognize certain differences between statutes of limitations and statutes of repose. In doing so, the court relied upon language from Menne v. Celotex Corp., 722 F. Supp. 662 (D. Kan. 1989). In Menne the federal court stated:
“Statutes of limitation and repose may be distinguished both by their method of operation and their underlying purpose. Although the two terms have traditionally been used interchangeably, in recent years the term ‘statute of repose’ has been used to distinguish ordinary statutes of limitation from those statutes which begin to run ‘at a time unrelated to the traditional accrual of the cause of action. . . .’
“[Sjtatutes of limitation ‘are generally seen as running from the time of injury, or discovery of the injury in cases where that is difficult to detect. They serve to limit the time within which an action may be commenced after the cause of action has accrued. Statutes of repose, on the other hand, create time limitations which are not measured from the date of injury. These time limitations often run from defendant’s last act giving rise to the claim or from substantial completion of some service rendered by defendant.’
“Statutes of hmitaüon and repose may also be distinguished by their respective purposes. In ordinary statutes of limitation, any repose provided to defendants is merely incidental. The main purpose of such statutes is the prevention of stale claims, serving as instruments of public policy and of court management, [which] do not. confer upon defendants any right to be free from liability, although this may be their effect.’ [Citation omitted.] Statutes of repose, in contrast, operate as a grant of immunity serving primarily ‘to reheve potential defendants from anxiety over liability for acts committed long ago.’ [Citation omitted.]
“. . . Statutes of repose ‘are intended to be “a substantive definition of rights as distinguished from a procedural limitation on the remedy used to enforce rights.’” [Citation omitted.] Because statutes of repose ignore the date of tire injury or discovery of injury and generally lack tolling provisions, they are deemed to ‘acquire a substantive nature, barring rights of action even before injury has occurred if the injury occurs subsequent to the prescribed time period.’ [Citation omitted.]” 722 F. Supp. at 665-66.
In Harding, the court was influenced by the reasoning set forth in Menne and adopted that court’s conclusion that 60-513(b) was a statute of repose. In doing so, this court stated:
“Even though the United States Supreme Court makes no distinction between statutes of limitations and statutes of repose, and we have not clearly expressed the distinction in our cases, we consider it important to explain the difference between the two theories. A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits die time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive. Thus, Kansas constitutional protection applies only to statutes of repose because they pertain to substantive rights.” 250 Kan. at 668.
It is important to recognize that the procedural/substantive discussion in Harding was in the context of the constitutionality of a statute, which the defendant argued operated to revive a cause of action previously barred by the applicable time limitation statutes in violation of the due process rights of the defendant.
Defendant also relies heavily upon Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993), which addressed a similar issue and argument. In Wright, the Georgia Supreme Court reviewed the question of whether the state’s five-year statute of repose for medical malpractice claims was subject to a six-month renewal or savings statute. Under the facts of fhe case, the plaintiff filed his action within the requisite two-year statute of fimitation period, and the litigation continued for over six years while both parties conducted extensive discovery. After selection of the jury, however, plaintiff voluntarily dismissed the suit, complaining that he did not like the jury selection. He later refiled his action within the six-month renewal period. Defendants then filed a motion for summary judgment, arguing that the five-year statute of repose period had expired and, therefore, plaintiff’s claim was abolished.
In reviewing the issue, the court discussed the difference between statutes of limitation and statutes of repose. The court stated:
“There is a distinct difference between statutes of limitation and statutes of repose.
‘A statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues. ... A statute of repose, however, limits fhe time within which an action may be brought and is not related to fhe accrual of any cause of action. The injury need not have occurred, much less have been discovered.’ [Citations omitted.]
“A statute of repose stands as an unyielding barrier to a plaintiff’s right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. [Citation omitted.] The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. ” (Emphasis added.) 262 Ga. at 845.
The court held the repose statute controlled and the renewal statute was inapplicable.
Relying on Wright, defendant contends that upon the dismissal of the instant action all claims against him were forever abolished. It is defendant’s position that fhe four-year time bar of 60-513(c) is not subject to the savings provision of 60-518 or the tolling provision of 65-4908. We do not find Wright persuasive here, nor do we find Harding applicable to the facts of this case.
Prior to our opinion in Harding, the Kansas appellate courts had not specifically recognized a difference between statutes of limi tation and statutes of repose. As early as 1870 this court, in Taylor v. Miles, 5 Kan. 498, 515 (1870), stated: “[T]hey [statutes of limitation] are considered favorably as statutes of repose.” See also A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, Syl. ¶ 1 (1887) (“Statutes of limitation are statutes of repose which are founded on sound policy.”)
While there are differences between statutes of limitation and statutes of repose, those differences are not as clearly defined as Menne, Harding, and Wright might indicate. Both types of statutes constitute time limitations on the plaintiff’s right to recover for damages received as a result of the defendant’s action or inaction. Thus, in the broader sense, a statute of repose constitutes one type or form of a statute of limitations. Both types of statutes seek the same objective and are founded on the same basic philosophy. “Statutes of limitation are statutes of repose, and, as such, are designed to secure the peace of society and to protect the individual from being prosecuted upon stale claims.” Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 54, 402 P.2d 782 (1965).
The essential difference between statutes of limitation and statutes of repose are based upon the time of the accrual of a cause of action and the effect of such accrual on the time limitation. K.S.A. 60-5l3(a) is the general statute of limitations for tort actions and provides for a two-year limitation period from the time the cause of action accrues. Ordinarily, a cause of action accrues at the time of the act giving rise to the alleged injury or damage. If the injury is not simultaneous with the act, it accrues at the time the injury becomes reasonably ascertainable. K.S.A. 60-513(c) applies the general rule for the accrual time of a cause of action for medical malpractice but, in addition, establishes a time limitation on the filing of an action even if the cause of action has not yet accrued. K.S.A. 60-513(c) reads:
“A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to ham accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
K.S.A. 60-513(c) applies when the accrual of the cause of action and the act giving rise to the cause of action do not coincide. The four-year repose limitation only becomes relevant when “the fact of injury is not reasonably ascertainable until some time after the initial act, [and] then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” K.S.A. 60-513(b). In such event, the action must be filed within two years of the date of the accrual of the cause of action or four years from the act giving rise to the cause of action, whichever occurs first.
In the instant case, the act giving rise to plaintiff’s cause of action occurred on September 20, 1988, the date upon which the defendant performed the initial surgery. Plaintiff filed his request for a medical malpractice screening panel on September 13, 1990, within the two-year general limitation period provided by K.S.A. 60-513(a)(7) and within two years of the act giving rise to his cause of action. At that point the two-year tort statute of limitations was tolled by K.S.A. 65-4908. The screening panel filed a valid report on August 20,1992. Plaintiff’s first action was filed September 16, 1992, and within 30 days of the hearing panel report. Plaintiff’s first action was timely filed. See K.S.A. 65-4908.
Even if we assume that the injury suffered by the plaintiff was not “reasonably ascertainable” until his testicle was removed on April 17, 1989, the two-year statute of limitations would have expired on April 17,1991, under the specific provisions of K.S.A. 60-513(c), absent the filing of the medical malpractice screening panel request and application of the tolling provision of K.S.A. 65-4908. However, defendant concedes that the first action, filed September 16, 1992, and long after the two-year period from the act or reasonable ascertainment of injury, was timely filed.
The first action was timely filed because of the tolling provision of K.S.A. 65-4908, not because of the four-year repose period of K.S.A. 60-513(c). Once the action was timely filed within the provisions of our procedural statutes, plaintiff is entitled to all of the protections afforded any other timely filed civil action, including the savings provision of K.S.A. 60-518.
In Denton v. Atchison, 76 Kan. 89, 91, 90 Pac. 764 (1907), we stated:
“The general periods of limitation are not changed by [the savings] provision, but it is intended to give a party who within the proper time brought an action which was disposed of otherwise than upon the merits after the statute of limitations had run [six months] of grace in which to reinstate his case and obtain a determination upon tire merits.”
See also Rogers v. Williams, Larson, Voss, Strobel & Estes, 245 Kan. 290, Syl. ¶ 1, 777 P.2d 836 (1989) (60-518 is savings statute and not tolling statute); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-518 (1994 Supp.) (60-518 cannot be considered as extension of limitation period; its purpose and effect simply saves litigant from limitation bar).
The Court of Appeals in Goldsberry v. Lewis, 2 Kan. App. 2d 56, 57, 574 P.2d 566 (1978), stated: “[W]hen plaintiff’s action has failed otherwise than on the merits and he thereafter commences a new' action, he is to be afforded the protection or benefit of K.S.A. 60-518 if it is found that the earlier action has been commenced in due time.”
When the three statutes are read together and the obvious intent of each statute is given effect in relation to the others, we conclude that the language “and the time limited for [filing the action] shall have expired” in K.S.A. 60-518 and the language “shall toll any applicable statute of limitations” in K.S.A. 65-4908 should be construed broadly to include any time limitation, regardless of whether it be denominated a statute of limitations or a statute of repose. See K.S.A. 60-102. The repose provisions of 60-513(c) are not applicable to defeat the savings clause of 60-518 w'hen the initial action was timely filed, even though the second action is not filed until more than four years after the act which gave rise to the cause of action. Although there maybe basic differences between statutes of limitation and statutes of repose as discussed in Harding, we do not find the difference in semantics or the procedural versus substantive argument persuasive under the facts of this case and the statutes discussed herein. The repose provisions of K.S.A. 60-513(c) simply do not apply under the facts of this case.
We conclude that once an action is timely filed under the provisions of a so-called ordinary statute of limitations or within the applicable time limitations of a repose statute, such as K.S.A. 60-513(b) or (c), the action is then subject to the savings provision of K.S.A. 60-518. We also conclude that the tolling provision of K.S.A. 65-4908 is applicable to medical malpractice actions that might otherwise be barred by K.S.A. 60-513(c). In the instant case the original action, although filed more than two years after the cause of action arose, was timely filed because of the tolling provision of K.S.A. 65-4908. The first action, having been timely filed, was subject to the savings provision of K.S.A. 60-518, and therefore the second action was also timely and not barred by K.S.A. 60-513(c).
The judgment is affirmed.
Six, J., concurs in the result. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Leo N. Johnson, of Council Grove, an attorney admitted to the practice of law in the State of Kansas.
The formal complaint filed against respondent alleged violations of MRPC 1.4 (1994 Kan. Ct. R. Annot. 302); 1.15 (1994 Kan. Ct. R. Annot. 332); and 8.4(d) (1994 Kan. Ct. R. Annot. 379); and Supreme Court Rule 207 (1994 Kan. Ct. R. Annot. 199). Respondent filed an answer.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on November 1, 1994, in Topeka, Kansas. Respondent appeared in person and by his counsel, Wayne E. Hundley.
Respondent has previously appeared before this court. He was indefinitely suspended in 1980, In re Johnson, 227 Kan. 478, 608 P.2d 1012 (1980), and subsequently reinstated in 1989. In 1992, he was disciplined by public censure. In re Johnson, 250 Kan. 286, 822 P.2d 72 (1992). The present complaint arises out of respondent’s being retained to represent a client in a divorce action. Respondent was paid $800 to represent the client, but, before the action could be commenced, the client died. Respondent failed to respond to the request by the attorney for the client’s estate that respondent account for the $800 fee. Respondent subsequently failed to respond to the Disciplinary Administrator’s inquiries and later to the investigating attorney during the investigation of the complaint.
The hearing panel concluded that respondent violated MRPC 1.15(a), (b), (c), and (d)(l)(ii) and (2); 8.4(d), and Supreme Court Rule 207. The panel found that respondent did not violate MRPC 1.4, and that claim was dismissed.
The panel recommended a one-year suspension, stating:
“Respondent’s efforts to gain reinstatement and his commitment to abstain from alcohol are to be commended. The panel cannot overlook, however, the serious nature of the ethical violations in both cases that have arisen after Respondent’s reinstatement and his failure to cooperate in both investigations. Neither case arises out of dependency on alcohol. The panel finds Respondent’s lack of cooperation with the Disciplinary Administrator’s office particularly troubling. . . .
“. . . Moreover, the panel cannot and does not condone Respondent’s attitude in this case when a question regarding fees arose . . . stating he felt the estate could sue him if he had overcharged die decedent. Unfortunately, diis response exemplifies Respondent’s actions in this matter and his demeanor before the panel.
“The panel is mindful that Respondent’s actions did not significantly delay closing the estate in this case, but the negative effect of those actions was felt by the parties involved. The timing of Respondent’s payment of $400.00 to [complainant] is suspect as well. He failed to timely make a good faith effort to make restitution or to rectify the consequences of his misconduct.
“This panel cannot and will not ignore the serious violations of the disciplinary rules and the Respondent’s refusal to cooperate in the investigation herein. Accordingly, it is the unanimous recommendation of the panel that Respondent be disciplined by suspension from the practice of law for a period of one year pursuant to Rule 203(a)(2) [1994 Kan. Ct. R. Annot. 189] and costs be assessed to Respondent.”
This court shares the concerns expressed by the panel. However, as noted by the panel, respondent is a recovering alcoholic, and since 1984 he has not had a drink and regularly attends Alcoholics Anonymous meetings. His struggle is ongoing and continuous. He still evidences behavior which the respondent describes as that of “a diy alcoholic.” Such behavior, in the present case, was simply a failure to respond to a simple inquiry. Had respondent responded to the requests of the attorney for the estate or to the Disciplinary Administrator s office, he would not be before this court. Respondent’s remarks to the court indicate an awareness that his failure to respond in the present case is unacceptable and a willingness to take whatever action is necessary to prevent a reoccurrence of such behavior in the future. A majority of the court feels that imposition of discipline should be suspended and respondent placed on probation.
It Is Therefore The Order Of The Court that the imposition of discipline against Leo N. Johnson be and is hereby suspended, and he is placed on probation for a period of two years from the date of this order on condition that he continue to regularly attend AA meetings, submit to the Disciplinary Administrator a plan for obtaining counseling and/or assistance to ensure that such behavior will not be repeated, make whatever written reports are required by the Disciplinaiy Administrator, and not violate any of the Model Rules of Professional Conduct; that he take an additional 10 hours of CLE in ethics; and that he cooperate fully with the Disciplinary Administrator.
It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order shall forthwith issue to respondent, and this court wall take whatever disciplinary action it deems necessary without further formal proceedings.
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. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a multistate oil and gas class action suit involving Kansas and non-Kansas plaintiffs who own royally and overriding royalty interests in oil and gas leases located in Kansas, Oklahoma, Texas, Louisiana, Utah, and Colorado. The Louisiana, Utah, and Colorado leases are no longer in the case and are not in issue on appeal. Defendant Marathon Oil Company’s predecessor in interest, TXO Production Corp. (TXO), deducted from the royalties “marketing costs” or “gathering line amortization expenses” to recover a portion of its expenses in constructing and maintaining gas gathering pipeline systems to transport gas from the lease to markets off the lease. The trial court held the deductions improper, and Marathon Oil Company appealed. Other issues include conflict of law issues, whether a class should have been certified, and the notices given to the class members.
The facts are not substantially disputed. Plaintiff Martha Stemberger owns a royally interest in an oil and gas lease in Barber County, Kansas. She is the named representative of a class of plaintiffs who own royalty and overriding royalty interests in oil and gas leases located in Kansas, Oklahoma, and Texas. The leases were owned and operated by TXO, which was merged into Marathon Oil Company (Marathon) on December 31, 1990. Plaintiffs and Marathon stipulated that the rights of all parties should be construed according to the language of the gas royalty clause in Stemberger’s lease, which provides in pertinent part that lessee agrees
"[t]o pay lessor for gas of whatsoever nature or kind produced and sold, or used off the premises, or used in the manufacture of any products therefrom, one-eighth (Vs), at the market price at the well, (but, as to gas sold by lessee, in no event more than one-eighth (Vs) of the proceeds received by lessee from such sales), for the gas sold, used off the premises, or in the manufacture of products therefrom, said payments to be made monthly.”
At issue in this appeal are 19 wells in Barber County, Kansas, involving 38 individual royalty interest owners, and numerous wells and royalty and overriding royalty interests in Oklahoma and Texas.
There was no market for gas at the wellhead, and TXO was unable to induce a gas purchaser to construct a pipeline to the well bore. Historically, about 85% of all gas purchasers paid the cost and built the lines necessary to gather and transport the gas to market. For the plaintiffs’ wells, TXO laid its own gas gathering pipeline system to transport gas from the wells to the market; otherwise, the wells would have remained nonproductive and the gas would not have been sold. For the Stemberger wells, the gas was transported from the wellhead through the gas gathering system laid by TXO to the Kansas Gas & Supply (KG&S) pipeline. TXO then paid a transportation fee to KG&S to transport die gas to the purchaser. The transportation fee TXO paid to KG&S was charged back to the royalty owners. That cost is not in dispute and is not an issue in this case.
TXO paid 100% of the cost of constructing the gas gathering pipeline system. The total cost for all wells on the Stemberger line (six wells) was calculated to be $127,995.88. TXO then deducted from Stemberger’s royalty payments 12 cents per thousand cubic feet (MCF) for 12 months as a “marketing cost” or “line amortization charge” to recover a proportionate cost of the pipeline. In determining that 12 cents per MCF for 12 or 13 months would yield the proper payback for the proportionate costs of constructing the pipeline (Vs of the cost of the pipeline), TXO considered the entire cost of the pipeline, including maintenance of the pipeline, costs of tracking the pipe from Oklahoma to the lease property, $400.00 per day for the TXO foreman or production superintendent to supervise the work, the costs of a survey, the costs of obtaining the necessary right-of-way, and other such expenses.
In exchange for laying the pipeline to connect the wells to the KG&S transmission system, TXO received from KG&S a 10 to 16 cent (12 cents on the average) discount on the transportation fee KG&S would have charged TXO for transportation from the Stemberger wells had KG&S laid the line. In other words, the 12 cent per MCF savings TXO received from KG&S was charged to the royalty interests in Kansas for one year. However, after the deductions were ceased in 12 months, the royalty owners realized a 12 cent per MCF discount because KG&S continued to charge TXO 12 cents per MCF less than it would have had KG&S laid the line.
Marathon has characterized the amortization charge as a user s fee or a gathering fee. Marathon currently owns the whole of the pipeline. TXO did not seek approval from Stemberger or other royalty or overriding royalty interests before laying the gathering system for the Stemberger or other wells, but TXO did obtain approval from other working interests before doing so.
TXO recovered 12% of its cost in constructing the line from Stemberger and other royalty interests connected with that line.
Stemberger filed suit against TXO in January 1991 to recover the gathering amortization deductions. Stemberger sought to represent a class of plaintiffs who owned royalty and overriding royalty interests in oil and gas leases owned and operated by TXO located in Kansas, Oklahoma, Texas, Louisiana, Colorado, and Utah and from whom TXO deducted “line amortization charges” similar to those it deducted from Stemberger s royalties. The line amortization charges deducted from other members of the plaintiff class differ from those deducted from Stemberger in that in some cases the deductions were designed to continue during the life of the well rather than to recoup the proportionate share of the pipeline expense in one year. Not all amortization charges were set at 12 cents per MCF; at least one well in Oklahoma was charged 17 cents per MCF, and a Texas well was charged 4 cents per MCF deducted over the life of the well. In some cases where the gathering pipeline was laid, TXO did not deduct a proportionate share of the expenses from the royalty and overriding royalty interests because the pipeline lateral was so short it did not justify the cost of setting up the accounting system. All gathering amortization deductions ceased in October 1990 when TXO was merged into Marathon because the Marathon accounting system was incapable of making the deductions.
Class representative Martha Stemberger filed this action against TXO in Barber County District Court on January 14, 1991. TXO removed the action to federal court, and the action was subsequently remanded back to the Barber County court. TXO was the original named party defendant, but Marathon was subsequently substituted as the named defendant as a result of the merger of TXO into Marathon.
The class was certified on January 22, 1993. The plaintiff class was defined as follows:
“Ail royalty owners and overriding royalty owners who owned property in Kansas, Oklahoma, [or] Texas . . . subject to oil and gas leases either owned and/or operated by TXO Production Corp. from which gas was produced and whose royalty or overriding royalty was subject to deductions by TXO for pipeline gathering amortization expenses which were referred to as ‘marketing costs.’ ”
The trial court divided the class into subclasses by state and then dismissed the claims arising from Colorado and Utah because the potential subclasses did not satisfy the numerosity requirement and because the amount of any claims from those states were cle minimis. The court held that the proposed class of plaintiffs was numerous and that actual joinder of all members was impracticable, that the claims of the named class representative, Sternberger, were typical of the claims of the other members of the class, and that the deductions provided common questions of law and fact which predominated over questions affecting only individual members of the class. The court later determined the statute of limitations had expired on any Louisiana claims, leaving the leases in Kansas, Oklahoma, and Texas at issue.
The trial court ordered that notice, by forms approved by the court, be mailed to class members on January 25, 1993, and published on February 1, 1993. The notice mailed to class members included a Request for Exclusion which class members were instructed to return to class counsel postmarked on or before February 10, 1993. Between 90 and 100 exclusion requests were received which were postmarked on or before February 10, 1993. These class members were permitted to opt out of the class. An additional seven members submitted exclusion requests postmarked after February 10, 1993, but before trial, which was February 25, 1993. The trial court did not permit these members to opt out of the class. The trial court’s failure to grant the late exclusion requests is an issue on appeal.
The trial court held that the deductions by TXO, now Marathon, for pipeline construction expenses were improper. Marathon appeals.
The parties stipulated to the judgment amount of $119,994.52, which is the amount of fees deducted excluding amounts attributable to class members who opted out on or before February 10,1993, and excluding claims for deductions which the trial court found were barred by the applicable statutes of limitations in Oklahoma, Texas, and Louisiana. The parties further stipulated to prejudgment interest on that amount of $50,346.63, for a total judgment against Marathon of $170,341.20. The calculation of the judgment amount and prejudgment interest are not issues on appeal.
This court permitted the filing of amici curiae briefs by the American Petroleum Institute, the Southwest Kansas Royalty Owners Association, the National Association of Royalty Owners, and the Kansas Independent Oil and Gas Association. They are of high quality (as are the parties’ briefs) and of much help to the court.
PIPELINE FROM WELL
At the outset it must be noted that Stemberger and Marathon disagree as to how this issue should be phrased. Marathon suggests the issue is merely whether the costs incurred to transport gas off the lease to a distant market may be deducted, whereas Stemberger argues the issue is whether Marathon may deduct its actual expenses incurred in constructing a gas pipeline from Stemberger’s wells to the transmission line of the gas purchaser.
The relevant portion of the lease provision governing in this action provides that Marathon will pay royalties of one-eighth (Vs) of the market price at the well for gas sold or used. The lease provision is silent as to deductions. Stemberger argues that the lease is ambiguous and therefore must be construed in her favor to preclude the deductions made by Marathon. By adopting Stemberger’s suggested findings of fact and conclusions of law, the district court agreed with Stemberger that the lease is ambiguous. Stemberger bases her assertion of an ambiguity on the fact that the lease is silent as to whether or not the lessee has the authority to deduct post-production expenses from royalty proceeds.
Stemberger correctly states that ambiguities in an oil and gas lease are to be construed in favor of the lessor. See Gilmore v. Superior Oil Co., 192 Kan. 388, Syl. ¶ 2, 388 P.2d 602 (1964). Here, however, the lease is not ambiguous. The lease’s silence on the issue of post-production deductions does not make the lease ambiguous. The lease clearly specifies that royalties are to be paid based on “market price at the well.”
The American Petroleum Institute (API) points out that there was no actual market at the well here, though the lease provided for royalties based on the market price at die well. API argues, “In the absence of an actual market at the well, the market price at the well must logically be determined by deducting from the market price at an available point of sale off the lease the expense of transporting the gas there.” Generally, Kansas law holds that transportation costs are borne proportionately by the lessor and the lessee where the royalty is to be determined at the well but no market exists at the well.
In Scott v. Steinberger, 113 Kan. 67, 213 Pac. 646 (1923), an oil and gas lease provided for the lessee to pay the lessor “free of cost in the pipe lines to which he may connect his wells one-eighth of all oil produced and saved on said premises, and shall pay the market price for same in cash if [lessor] shall so desire; and shall pay to [lessor] one-eighth of all gas produced and marketed.” Because there were no pipelines near the leased premises, the lessee constructed a pipeline at a cost of $61,680. The reasonable value of gas at tire field was found to be 8 cents per MCF, the reasonable cost of transporting gas was found to be 7 cents per MCF, and gas transported through the pipelines was sold for 15 cents per MCF. The dispute between the parties concerned whether the lessor was entitled to the value of the gas at the field or the price at which it was sold at the end of the pipeline. This court found the lease somewhat ambiguous regarding the point at which the price of the gas was to be fixed. This court determined the parties contemplated that the market price of the gas should be determined at the place where the wells were con nected with the pipeline and not at some distant market where the gas might be sold. Thus, where the price of the gas was to be determined at the well, royalties were to be paid at a rate of 8 cents per MCF, the reasonable value of the gas at the field.
This court reached a similar result 10 years later in Voshell v. Indian Territory Illuminating Oil Co., 137 Kan. 160, 19 P.2d 456 (1933), in an oil and gas case where there was no market for the oil at the field. The lease provided that the lessor would receive “free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced and saved from the leased premises.” 137 Kan. at 161. A market price posted in McPherson County was generally regarded as the market price for oil in that area, including for oil from lessor’s wells. Eventually, though, the market for oil in that area shrank and the lessee was unable to secure a buyer for its oil. The oil wells still had to be pumped, however, to prevent their destruction. Therefore, the lessee arranged to transport, at a price of 12.5 cents per barrel, the oil from lessor’s wells to a distant market at El Dorado. Royalties were calculated and paid based on the posted price in El Dorado less the transportation charges. The lessor argued that the market price should have been regarded as the posted price in the McPherson field. This court agreed that ordinarily those prices would be the same but stated, “[A] market price presupposes the existence of a market. But there was no market[;] nobody was paying the posted price’ except the limited few who were fortunate enough to have pipe-line connections in the field.” 137 Kan. at 164. Because there was no market in the Voshell field for the oil in which lessors were interested, the amount tendered by the lessee — the selling price at El Dorado less the cost of transportation — was approved by this court.
In 1943 this court again reached a similar conclusion. In Molter v. Lewis, 156 Kan. 544, 134 P.2d 404 (1943), the relevant lease provision required the lessee “[t]o deliver to the credit of lessor, free of cost, in the pipeline to which he may connect his wells, the equal one-eighth part of all oil produced and saved from the leased premises.” When the lease was executed, there was no pipeline connection to the leasehold, and the lessee was unable to obtain a pipeline connection to the leasehold. In order to obtain a market, it was necessary to transport the oil by truck. The lessee transported by truck all oil, including that belonging to the lessors, from the Greenwood County leasehold to a market at El Dorado or to other markets. The lessee then sought to recover from the lessors the reasonable charge for transporting the oil belonging to the lessors. Discussing Scott and Voshell as well as oil and gas treatises, the Molter court held:
“[I]t is the duty of the lessee, without cost to the lessor, to use all reasonable efforts to have pipe lines connected with producing wells which he drills on the lease. If after using such efforts he is unable to get a pipe line connected to the wells on the lease, and to prudently operate the lease transports the oil by (ruck from the wells on the lease to a pipe line, the lessor should pay the reasonable charges for the transportation by truck of his one-eighth share of the oil.” 156 Kan. 544, Syl.
In so holding, this court quoted language from Mills and Willingham, Law of Oil and Gas § 130 (1926):
“ ‘[I]f the lessee constructs a pipe line or deals with another to do so, he is entitled to charge against the lessor his proportion of the reasonable rental value of such line. The lessor, however, is not liable for the cost of such line. Where the lessee undertakes to and does market his own oil or gas by pipe line or tank car it would seem that he would be bound to take the royally share along with his own, but is only liable for the reasonable value of the royalty share at the well.’ ” Molter, 156 Kan. at 548-49.
Scott, Voshell, and Molter are dispositive of the issue in this case. These cases clearly show that where royalties are based on market price “at the well,” or where the lessor receives his or her share of the oil or gas “at the well,” the lessor must bear a proportionate share of the expenses in transporting the gas or oil to a distant market. Authorities cited by Marathon also support this conclusion.
Marathon suggests that the majority rule is that the lessor’s royalty share is free of production costs but is subject to costs subsequent to production. Marathon cites several oil and gas commentators: 3 Williams & Meyers, Oil and Gas Law § 645.2, p. 598 (1994) (“A royalty or other nonoperating interest in production is usually subject to a proportionate share of the costs incurred subsequent to production where . . . the royalty ... is payable 'at the well’ ”); 5 Kuntz, Law of Oil and Gas § 60.1 (1991) (lessee has duty to deliver gas to market; if identified as a production cost, lessee bears the cost, and if identified as a marketing cost, the lessor shares in the cost proportionately). Marathon stresses that the leases at issue here provided for gas royalty to be paid based upon the market price at the well. Marathon reasons that ''[w]here, as here, there is no market on the lease, the parties clearly contemplated that royalty should bear a share of the cost to transport the gas to market.”
Marathon relies on Matzen v. Hugoton Production Co., 182 Kan. 456, 321 P.2d 576 (1958), and Ashland Oil & Refining Co. v. Staats, Inc., 271 F. Supp. 571 (D. Kan. 1967). In Matzen, the royalty clause provided for payment of “one-eighth of the proceeds from the sale of gas, as such, for gas from wells where gas only is found.” The supply greatly exceeded the demand in die field, and it was necessary that the gas be transported from the wellheads to a distant market. The lessee contracted with a purchaser to supply gas. The lessee constructed a gathering pipeline system, having a total length of over 184 miles, connecting each of its 152 producing gas wells. The gas was metered at the.wellhead and then moved through the pipeline in a commingled mass to a point where the sale and delivery into the purchaser’s pipeline occurred. The lessee also constructed a gasoline plant and a dehydrating plant and obtained a purchaser for some of the remaining gas. 182 Kan. at 458-59.
The parties in Matzen agreed that the royalty was to be determined at the wellhead rather than at the point of sale and that there was no market price at the wellhead. At issue was how to calculate the royalties. 182 Kan. at 459. The trial court determined that proceeds at the well were equal to gross proceeds from total sales less proper chargeable operating expenses incurred in procuring such proceeds (“proceeds-less-expenses” formula). Proper operating expenses included gathering, processing and dehydrating. 182 Kan. at 460. This court agreed:
“It was as much [lessee’s] duty to find a market on the leased premises without cost to the plaintiffs as it was to find and produce the gas [citation omitted], but that duty did not extend to providing a gathering system to transport and process the gas off the leases at a large capital outlay with attending financial hazards in order to obtain a market at which the gas might be sold. When plaintiff’s leases were executed it was the established custom and practice in the field to measure, determine the price, and pay royalty at the wellhead for gas produced. Pipeline facilities did not exist and there was no general market for gas in the area. Although the leases are silent as to where a market must be found, it is evident the parties anticipated, from the very nature and character of natural gas, that pipe-line transportation would be required in the event of production and they could not reasonably have contemplated that the lessee alone would bear the expense of providing such transportation to a point off tlie leases for sale and delivery to a purchaser for ultimate consumption. . . .
“The language ‘proceeds from the sale of the gas, as such,’ must be construed from the context of die leases and the custom and practice in the field at the time they were executed, and we think where, as here, the gas produced is transported by die lessee in its gathering system off the premises and processed and sold, its royalty obligation is determined by deducting from gross proceeds reasonable expenses relating directly to the costs and charges of gathering, processing and marketing the gas.” 182 Kan. at 462-63.
The lessee sought also to deduct federal and state income tax expenses as operating expenses. The trial court held that maintenance, depreciation, and ad valorem and other direct taxes were properly deductible from the gross proceeds to calculate royalties, but the court disallowed federal and state income taxes as deductions. This court agreed that federal and state income taxes were not proper deductions, stressing that the lessee’s own accounting system did not include income taxes as part of its operating expenses. 182 Kan. at 464-65.
In adopting the proceeds-less-expenses formula, the Matzencourt distinguished Scott, Voshell, and Molter because those cases involved lease provisions which provided for delivery of a specific portion of the oil or gas produced rather than for payment as royalty a portion of the proceeds from the sale of the gas. Matzen, 182 Kan. at 463. That distinction is not significant in the context of the case at bar. Scott, Voshell, Molter, and Matzen all stand for the proposition that reasonable transportation expenses are shared by the lessor and the lessee where royalties are paid (in oil or gas or in money) “at the well” but there is no market at the well.
In Ashland Oil, 271 F. Supp. 571, the lessee operated and maintained a 153-mile gathering system. The lessee obtained a purchaser for gas at a distant market; the purchaser paid a price at the place of sale, and the purchaser also paid to the lessee the costs of gathering and transporting the gas through lessee’s gathering system. The lessors sought royalties on the gathering and transportation charges recouped by the lessee. The court disagreed, stating, “We will not so enlarge the lessee’s duty to market production so as to require it to devote a long and costly gathering system to transport gas to the nearest commercial market.” Ashland Oil, 271 F. Supp. at 575. Following Scott, 113 Kan. 67, the court stated, “Likewise, in this case, we hold that the duty to market gas does not require Ashland to devote its pipeline, even though existing at the time part of the leases were executed, to gather and transport gas from lessors’ property to the purchaser’s pipeline.” Ashland Oil, 271 F. Supp. at 576. The court held that the gathering and transportation charges paid by the purchaser were not proceeds from the sale of gas; thus, royalties were not due on charges for the use of an extensive and valuable gathering system regardless of where the gas was delivered. 271 F. Supp. at 578. Royalties were paid on the sale of gas as metered at the well; any leakage during transportation was borne by the lessee and not the lessors. 271 F. Supp. at 577-78.
Stemberger attempts to distinguish Matzen and Ashland Oil from the case at bar. Stemberger points out that the parties in Matzen stipulated that the lessors must bear a portion of the gathering, processing, and marketing costs. See Matzen, 182 Kan. at 467 (Fatzer, J., concurring). Stemberger also reasons that the issue in Ashland Oil was whether the lessee must pay royalties on transportation charges recouped by the lessee; the issue was not whether the lessee could deduct transportation charges from the royalties.
Stemberger cites Gilmore v. Superior Oil Co., 192 Kan. 388, 388 P.2d 602 (1964), Schupbach v. Continental Oil Co., 193 Kan. 401, 394 P.2d 1 (1964), and Sterling v. Marathon Oil Co., 223 Kan. 686, 576 P.2d 635 (1978). In Gilmore, the royalty clause provided for the lessee to pay the lessor
“ ‘for gas produced from any oil well and used by the lessee for the manufacture of gasoline or any other product as royalty Vs of the market value of such gas at the mouth of the well; if said gas is sold by the lessee, then as royalty Vs of the proceeds of the sale thereof at the mouth of the well. The lessee shall pay lessor as royalty Vs of the proceeds from the sale of gas as such at the mouth of the well where gas only is found ....”’ 192 Kan. at 391.
There was no market for the gas at the mouth of the well, and gas was being vented and wasted. To make the gas marketable, die lessee installed a large compressor station on the leased premises (rather than small compressors at the mouth of each well). The lessee then sought to have the lessors contribute to the cost of taking the gas from the mouth of the well to the compressor and making it marketable. This court recognized the lessee’s duty to make the gas marketable and found that compression was necessary to make the gas marketable. This court held under the facts that “the lessee . . . has the duty of making the gas marketable and cannot recover from the lessors for the expense of installing a compressing station used to compress all gas produced on the leases because such installation was a necessary expense in the process of making such gas marketable.” 192 Kan. 388, Syl. ¶ 3. We pointed out that the gas was put into pipelines already existing on the leases and therefore the lessee was not put to any great expense in building miles of pipelines for that purpose. 192 Kan. at 393.
In Schupbach, 193 Kan. 401, a similar result was reached where the compression took place off, rather than on, the leased premises. The lessee sought to deduct a one-eighth share of its compression costs to market gas where the royalty clause provided for payment to the lessor of “Vsth of the proceeds of the sale thereof at the mouth of the well.” 193 Kan. at 402. The lessors signed a division order providing for payment of one-eighth of the market price paid by the purchaser for oil, free of cost to the lessors, except that if transportation by truck was necessary, the lessee could deduct from the price die transportation charges. The lessors refused to sign a division order concerning the sale of gas, where the lessee sought to deduct a proportionate share of die actual cost and expense of gathering, processing, and compressing the gas. Relying on Gilmore, this court held that the lessee was not entided to deduct reasonable costs of compression from gross proceeds in computing gas royalties. 193 Kan. at 406.
Finally, Stemberger cites Sterling, 223 Kan. 686. There, this court refused to permit the lessee to set off one-eighth of its expenses and attorney fees incurred in obtaining increased gas prices and its administrative costs incurred in handling “suspense royalties.” This court stated, “Historically, the landowners’ share of the oil and gas royalty is free and clear of all costs of administration, production, marketing, etc.” 223 Kan. at 688.
Stemberger likens the capital expenditure of building this pipeline to the expenses of drilling and equipping a well and argues that such expenses must be borne solely by the lessee. She cites Pray v. Premier Petroleum, Inc., 233 Kan. 351, 662 P.2d 255 (1983). In Pray, 233 Kan. 351, Syl. ¶ 6, this court did state that “[cjapital expenditures for building a pipeline to transport gas to the nearest market fall in the same category as costs of drilling and equipping a well.” That statement was in the context of determining what expenses should be taken into consideration in determining whether a gas well will produce in paying quantities under an oil and gas lease’s shut-in royalty clause; the statement had nothing to do with determining whether the lessee bears those expenses alone or in conjunction with the lessor. While adopting a different standard for paying royalties than for determining if production is in paying quantities may seem like allowing the producer to have its cake and eat it too, it has a valid public purpose of encouraging maximum use of the oil and gas by keeping low-producing and stripper wells producing.
Stemberger also points out that the Pray court noted testimony that “85% of the time the purchaser of the gas brings the transportation line to the well.” 233 Kan. at 356. Amicus Kansas Independent Oil and Gas Association (KIOGA), representing the smaller producers, suggests that this is no longer true and that therefore gas producers must lay and maintain gathering and transportation lines, an expensive proposition for the smaller producers. If the purchaser does generally bring the transportation line to the well, that fact perhaps strengthens Marathon’s position rather than Stemberger’s. If the purchaser brings the transportation line to the well, the purchaser will pay the market price at the well. This price will reflect the expense incurred by the purchaser in bringing the pipeline to the well and will be less than the purchaser would have paid had it not had the expense of bringing the line to the well. The price will also include a risk factor and a return on investment, neither of which is involved in this case.
The trial court, in addition to adopting the argument and authorities cited by Stemberger, noted that a transportation pipeline or purchaser may offer the operator the option of paying a higher price if the operator constructs a pipeline to deliver the gas and a lower price if the purchaser must construct the pipeline to receive the gas produced at the wellhead. The court expressed concern that the operator of the well (lessee) alone determines whether the economics justify capital expenditures in constructing a pipeline to transport the gas from the wellhead to the purchaser; the lessors have no voice in the decision. This certainly is a possibility. However, there is no suggestion that Marathon s decision to construct the pipeline here was not financially justified and to the lessor s benefit.
Amicus curiae Southwest Kansas Royalty Owners Association (SKROA), in supporting Stemberger s position that Marathon is not entitled to these deductions, adds an interesting argument not set forth by Stemberger. SKROA stresses the distinction between gathering and transportation, as does amicus curiae National Association of Royalty Owners (NARO). Pointing out that Marathon characterized its deductions as “gathering line amortization expenses,” SKROA argues that the costs deducted by Marathon were gathering expenses rather than transportation expenses. Marathon disputes that there is a distinction between gathering and transportation expenses.
SKROA relies on Gilmore, 192 Kan. 388, and Schupbach, 193 Kan. 401, to argue that costs of preparing gas for market are not deductible. As discussed above, Gilmore and Schupbach held that cost of compression which occurs away from the mouth of the well are not deductible even where, as SKROA stresses, the royalty is to be paid based on market price at the mouth of the well.
The lessee has the duty to produce a marketable product, and the lessee alone bears the expense in making the product mar ketable. Contrary to SKROA’s argument, however, there is no evidence in this case that the gas produced by Marathon was not marketable at the mouth of the well other than the lack of a purchaser at that location. There is no evidence that Marathon engaged in any activity designed to enhance the product, such as compression, processing, or dehydration. There is no evidence that Marathon attempted to deduct any expenses in making the gas marketable other than those of constructing a pipeline to transport the gas to the purchaser or to a transmission pipeline. Therefore, the deductions made by Marathon are properly characterized as “transportation” rather than “gathering” or other production costs.
We are also directed to Garman v. Conoco, Inc., 886 P.2d 652 (Colo. 1994). That case involves a certified federal question. In it, the Colorado Supreme Court held as we believe the law in Kansas to be: Once a marketable product is obtained, reasonable costs incurred to transport or enhance the value of the marketable gas may be charged against nonworking interest owners. The lessee has the burden of proving the reasonableness of the costs. Absent a contract providing to the contrary, a nonworking interest owner is not obligated to bear any share of production expense, such as compressing, transporting, and processing, undertaken to transform gas into a marketable product. In the case before us, the gas is marketable at the well. The problem is there is no market at the well, and in that instance we hold the lessor must bear a proportionate share of the reasonable cost of transporting the marketable gas to its point of sale.
The parties stipulated that the rights of the plaintiff class would be determined based on the language of the royalty clause in the Sternberger lease. That lease provided for royalties based on “market price at the well.” However, there was no market at the well. In order to obtain a market, Marathon constructed a pipeline from the wellhead to the purchaser — or for Stemberger’s and other wells, from the wellhead to a transmission line — in order to transport the gas to a distant market. Under Kansas authority, Sternberger and other members of the plaintiff class are responsible for their proportionate share of the reasonable expenses in transporting the gas from her wellhead to market, and Marathon may properly deduct reasonable transportation expenses from the royalties. We stress that the transportation expenses must be reasonable.
CONFLICT OF LAWS
The district court created subclasses in this case out of concern for the conflict of law issue because the claims of nonresidents arose in states other than Kansas. The district court substantially adopted the analysis set forth in Stemberger’s proposed findings of fact and conclusions of law. Stemberger argued that Oklahoma law denied any deductions in the absence of an agreement between the parties. Stemberger also argued that Texas law is conflicting and confusing and therefore the law of Kansas should apply. By adopting Stemberger’s analysis, the district court agreed and applied what it perceived to be Oklahoma law to the claims arising in Oklahoma and Kansas law to the claims arising in Texas.
Marathon argues that in a multistate class action where oil and gas leases are located in states other than Kansas, application of Kansas law is arbitrary and unfair, in violation of constitutional limits.
In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985), the United States Supreme Court was faced with a multistate oil and gas class action not entirely dissimilar to the case at bar, though the substantive issue was different. In that case, 99% of the claims arose from oil and gas leases not located in Kansas, and 97% of the plaintiff class members had no contacts with Kansas other than as members of the plaintiff class in an action being adjudicated in Kansas. 472 U.S. at 815. The district court applied Kansas law to all of the claims, and this court affirmed. Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984). This court stated that the law of the fomm applies unless it is expressly shown that a different law governs and that in a nationwide class action where procedural due process guarantees are satisfied, the law of the fomm should be applied absent compelling reasons for applying a different law; this court found no such compelling reasons. 235 Kan. at 221- 22. In reversing, the United States Supreme Court stated: “We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit.” 472 U.S. at 816. The Court noted that there may be some differences between Kansas law and the law of other jurisdictions connected to the suit. Pointing out that the parties had no idea that Kansas law would control at the time the leases outside Kansas were executed, the Court concluded:
“Kansas must have a ‘significant contact or significant aggregation of contacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure that die choice of Kansas law is not arbitrary or unfair. [Citation omitted.] Given Kansas’ lack of ‘interest’ in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude tiiat application of Kansas law to every claim in this case is sufficientiy arbitrary and unfair as to exceed constitutional limits.” 472 U.S. at 821-22.
The Supreme Court then remanded the case to this court for a determination as to which law to apply to the claims.
On remand, the district court found that the laws of other states did not conflict with the laws of Kansas on the relevant issues. Shutts v. Phillips Petroleum Co., 240 Kan. 764, 768, 732 P.2d 1286 (1987), cert denied 487 U.S. 1223 (1988). Following an exhaustive discussion about the law of the five jurisdictions other than Kansas, where 99% of the leases at issue were located (Texas, Oklahoma, Louisiana, New Mexico, and Wyoming), this court found that all but Wyoming had law consistent with Kansas law; Wyoming had no law on the issue. 240 Kan. at 798. This court affirmed the judgment of the district court in general. However, this court found that application of the Kansas post-judgment interest rate to the claims arising in Texas, Oklahoma, Louisiana, New Mexico, and Wyoming was improper; the statutoiy post-judgment interest rate of each state must be applied. 240 Kan. at 801. Moreover, the substantive law of Kansas as well as the Kansas statutory post-judgment interest rate was applied to all claims not arising in the five states discussed above because the lessee failed to argue the law of those states conflicted with Kansas law. 240 Kan. at 798, 802.
In Sun Oil Co. v. Wortman, 486 U.S. 717, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988), the United States Supreme Court again addressed the question of choice of law in multistate oil and gas class actions. The issue was similar to that which was decided in Shutts, and the lessee (Sun Oil) argued that this court in Shutts, 240 Kan. 764, misconstrued the law of Texas, Oklahoma, and Louisiana. The United States Supreme Court stated:
“To constitute a violation of the Full Faith and Credit Clause or the Due Process Clause, it is not enough that a state court misconstrue the law of another State. Rather, our cases make plain that die misconstruction must contradict law of the other State that is clearly established and that has been brought to the court’s attention.” 486 U.S. at 730-31.
The Court then concluded that the lessee had not brought to this court’s attention any clearly established law of the other states which contradicted our construction of the law of the other states.
Marathon argues here that the district court misconstrued the clearly established law of Oklahoma and Texas. Marathon suggests that both Oklahoma and Texas permit the lessee producing gas to deduct the costs incurred in transporting the gas to a market off the lease, though Marathon admits that the specific type of cost may not have been at issue. Marathon reasons that application of Kansas law was arbitrary and unfair.
We will examine Oklahoma and Texas law separately in light of our holding that Kansas permits deduction of reasonable transportation expenses where the royalty is payable at the market price at the well but there is no market at the well.
OKLAHOMA
Marathon relies primarily on Johnson v. Jernigan, 475 P.2d 396 (Okla. 1970), in arguing that Oklahoma law permits a lessee to deduct from royalties a proportionate share of costs associated with marketing and transportation. The royalty provision at issue provided for a royalty of “one-eight (Vs) of the gross proceeds at the prevailing market rate for all gas sold off the premises.” 475 P.2d at 397. There was no market at the wellhead, and the gas was transported for sale at a place 10 miles away from the lease property. The court construed the phrase “gross proceeds at the prevailing market rate” to mean the market rate at the wellhead or in the field and not at the purchaser’s location, which may be some distance away from the leased premises. 475 P.2d at 398. The court concluded:
“Under the lease the lessor is only entitled to a certain- percentage of the gross proceeds of the prevailing market rate. As the prevailing market rate is determined at the wellhead or in the field so must the term ‘gross proceeds’ be interpreted. ‘Gross proceeds’ has reference to the value of the gas on the lease property without deducting any of the expenses involved in developing and marketing the diy gas to this point of delivery. When the lessee has made the gas available for market then his sole financial obligation ceases, and any further expenses beyond die lease property must be borne proportionately by the lessor and lessee.’’ 475 P.2d at 399.
Thus, the lessee was entitled to deduct from the royalties a transportation cost of 2 cents per MCF to transport the gas 10 miles by a pipeline operated by the lessee.
Wood v. TXO Production Corp., 854 P.2d 880 (Okla. 1992) (as corrected on limited grant of rehearing May 24, 1993), relied on by Stemberger (and the district court), is not to the contrary. The Wood court answered a certified question: “Is an oil and gas lessee/operator who is obligated to pay the lessor <3/i6 at the market price at the well for gas sold’, entitled to deduct the cost of gas compression from the lessor’s royally interest?” TXO contracted with purchasers to deliver gas into the purchasers’ lines at a certain pressure. The wells operated by TXO initially produced gas at a sufficient pressure, but eventually the pressure dropped, and TXO built compressors on the leased premises to reach the requisite pressure. TXO sought to deduct the lessors’ proportionate share of the compression costs. The court acknowledged that Johnson requires that “the lessor must bear its proportionate share of transportation costs where the point of sale was off the leased premises.” Wood, 854 P.2d at 881. However, the Wood court noted that it had never held that the lessor is required to bear any transportation costs where the place of sale is on the leased premises. “In our view, the gas is ‘sold’ when it enters the purchaser’s line. Here that line is on the leased premises and there is no ‘transportation’ cost.” 854 P.2d at 881. Citing Schupbach and Gilmore, the court recognized that Kansas law requires the lessee to bear compression costs where compression is required in order to market the gas. Choosing to follow Kansas law, the Wood court found compression costs not deductible where the gas enters the purchasers’ lines on the leased premises. The court stated:
“One of the risks borne by the lessee in exploring for gas is that the gas will be low pressure. In our view, the implied duty to market means a duty to get the product to tire place of sale in a marketable form. Here the compressors and the connections to the gas purchasers’ pipelines are on the leased premises. There is no sale at a distant market and no necessity of transporting die product to the place of sale as there was in Johnson v. Jernigan." 854 P.2d at 882.
Stemberger points to the following language in Wood to assert that Wood dilutes the strength of Johnson:
“Some authorities believe that marketing expenses should be included as lessee’s operating costs because, without marketing, there is no production in paying quantities. Other authorities argue that the lessee has fulfilled his duty by obtaining gas capable of producing in paying quantities, and that the lessee should not have to bear alone the costs of ‘enhancing’ the product obtained, and the analysis centers on determining when a marketable product has been obtained. The authorities holding the second view make a distinction between production and ‘post production’ costs, holding that the lessor must bear its proportionate share of ‘post production’ costs. We reject this analysis in Oklahoma. We have said only that die lessor must bear its proportionate share of transportation costs where the point of sale was off the leased premises. Johnson v. Jernigan, 475 P.2d 396 (Okla. 1970).” Wood, 854 P.2d at 881.
Wood did not explicitly or implicitly overrule Johnson. Wood merely distinguished Johnson. The deductions involved in each case were of a different nature. Wood involved compression costs while Johnson involved transportation costs. The Wood court noted that it was not faced with a sale at a distant market or the necessity of transporting the product to the place of sale; rather, the sale in Wood occurred on the leased premises. The Wood court’s reliance on Kansas law is significant. Kansas permits deductions for transportation costs where there is no market at the well, but Kansas does not permit deductions for compression costs. Therefore, Wood does not destroy the weight of the Johnson holding that transportation expenses are deductible where there is no market on the leased premises.
Marathon dutifully points out the Oklahoma Supreme Court’s recent decision in TXO Production Corp. v. State of Oklahoma, ex rel., Commissioners of the Land Office, 65 Okla. Bar Journal No. 46, 3972 (No. 78,205, filed November 23, 1994, petition for rehearing filed January 9, 1995, not yet acted on), filed after the parties briefed the issues in the case at bar. The royalty clause in the lease at issue provided for the lessee, TXO, to deliver to the lessor, Commissioners, “without cost into pipelines, a royalty of one-eighth (Vs) part of the oil or gas produced from the leased premises ... or in lieu thereof, pay to the lessor the market value thereof, as the Commissioners may elect.” Slip op. at 4. The Commissioners elected to receive royalties under the market value alternative. TXO deducted “post-production costs” from the royalties, including costs for compression, dehydration, and gathering. The Oklahoma court held that the “without cost into pipelines” language applies to the cash royalty, as well as the royalty in kind, and thus “TXO may not deduct any costs for the royalty payment which results from processes necessary to get the product into pipelines” under the lease provision. Slip op. at 4-5.
The Commissioners court explained its holding in Wood and reconciled Wood with its decision in Johnson. The court reaffirmed the Johnson holding that the lessor shares in the costs of transportation where the point of sale occurs off the leased premises. Because the sale in Wood occurred on the lease site at the mouth of the well, there were no transportation expenses at issue in Wood. Rather, at issue were compression costs. The Wood court held that compression was not analogous to transporting and compression costs were therefore not deductible where compression was necessaiy to make the product marketable. Slip op. at 6-7. The Commissioners court also pointed to its concern expressed in Wood that the royalty owners have no input in cost-bearing decisions made by the lessee and that if a lessee wants the royalty owners to share in compression costs, the lessee can include such a provision in the oil and gas lease. Slip op. at 7.
Relying on Wood, the Commissioners court held that dehydration is necessaiy in order to make the product marketable and that gathering also occurs before the product is placed in the purchasers pipeline; therefore, these expenses, like compression, are not deductible. Slip op. at 8. In so holding, the Oklahoma Supreme Court expressly rejected Louisiana law (Merritt v. Southwestern Elec. Power Co., 499 So. 2d 210 [La. App. 1986],) which held the determination of market value included the subtraction of “costs of taking gas from the wellhead to the point of sale.” Slip op. at 9.
A petition for rehearing has been filed in the Commissioners case, but it has not yet been acted on by the court.
The judgment of the Oklahoma Supreme Court in Commissioners, if it becomes final, clearly holds that costs for compression, dehydration, and gathering are not deductible in the absence of an agreement between the parties. The Woodcourt followed Kansas law concerning the deductibility of compression expenses. Commissioners extends the Wood holding to dehydration and gathering expenses. However, both Wood and Commissioners leave intact the court’s earlier decision in Johnson holding that transportation costs are deductible where sale occurs off the leased premises. The lease in the Oklahoma Supreme Court case involved wording not present in our case. The lease obligates the lessee to deliver lessor’s Vs interest “without cost into pipeline.” It appears the Oklahoma Supreme Court made a distinction between a gathering system and the pipeline the gathering system tapped into.
Oklahoma law on the deductions at issue here appears to follow Kansas law: Compression and other expenses necessary to make the product marketable are not deductible, but transportation costs are deductible where the sale occurs off the lease premises. The district court, by adopting Stemberger’s proposed findings of fact and conclusions of law, attempted to follow Oklahoma law but misconstrued it. Oklahoma law does permit deductions for transportation expenses where there is no market at the well and the gas must be transported to a distant market. Johnson, 475 P.2d 396.
TEXAS
Marathon argues that in Texas, post-production expenses are borne proportionately between the lessee and the lessor. Marathon relies primarily on Parker v. TXO Production Corp., 716 S.W.2d 644 (Tex. App. 1986), and Martin v. Glass, 571 F. Supp. 1406 (N.D. Tex. 1983), aff’d 736 F.2d 1524 (5th Cir. 1984). The Parker court distinguished between the deductibility of production and post-production costs. Texas Oil and Gas Corporation (Texas) sold gas it produced under a lease to its wholly owned subsidiary, Delhi Gas Pipeline Corporation (Delhi). Delhi constructed a pipeline to carry the gas to market. Texas eventually conveyed its interest as operator of the wells to TXO, another of its wholly owned subsidiaries. Delhi installed compressors to better deliver the gas from the wells into Delhi’s pipeline system, and Delhi reduced the amount paid to TXO for the gas by 5% for a compression charge. TXO in turn paid royalties on only the reduced price it received from Delhi for the gas. Parker, 716 S.W.2d at 645-46. The court found the sale of gas by Texas to its subsidiary to be suspect but then held that there was no breach of the implied covenant to market. 716 S.W.2d at 646.
However, TXO also compressed the gas at the well site independent of the compression done by Delhi, and the court found that TXO’s compression was a production cost rather than a post-production cost. The court stated:
“Production costs are the expenses incurred in exploring for mineral substances and in bringing them to the surface. Absent an express term to the contrary in the lease, these costs are not chargeable to the non-operating royalty interest. Costs incurred after production of the gas or minerals are normally proportionately borne by both the operator and the royalty interest owners. [Citation omitted.] These ‘subsequent to production’ costs include the expenses of compressing gas to make it deliverable into a purchaser’s pipeline.” 716 S.W.2d at 648.
TXO’s compression at the well site was done to increase production from the wells rather than only to enable the gas to be delivered into Delhi’s pipeline system. The compression by TXO, therefore, was held to be a production cost rather than a post-production cost, and TXO’s compression expense was not to be shared by the lessor. 716 S.W.2d at 648.
The Parker court discussed Martin v. Glass, 571 F. Supp. 1406. In Martin, the lessee installed a compressor to move gas from a producing well to a nearby gathering line for marketing because the wellhead pressure was insufficient to cause the gas to flow to the gathering line. The lessee then deducted reasonable compression charges from the royalties. 571 F. Supp. at 1409. The court held that the compression charges were properly deductible from the nonoperating royalty and overriding royalty interests. Various royalty clauses were involved, but the court held that under each clause the price was to be fixed at the wellhead. The court stated:
“Under the law of Texas, gas is ‘produced’ when it is severed from the land at tire wellhead. [Citation omitted.] The facts established that ‘production’ of gas had been obtained from two wells on the Glass-Martin lease. (There was sufficient pressure to bring die gas to the wellhead or mouth of die well.) There was no evidence introduced to the contrary. In fact the parties stipulated that ‘at all times material to the suit, the Defendant [lessee] has had two productive gas wells, on die Glass-Martin lease.’ [Citation omitted.] Therefore, tiiis is sufficient to hold die nonoperating interests liable for their proportionate share of compression costs, as such costs were incurred subsequent to production.
“The parties stipulated that there was insufficient pressure at the wellhead to enable the gas to enter the purchaser’s gadiering line without compression. The gas was useless and had no market value at the wellhead unless, and until, it could be moved into die gathering line. Accordingly, diere was no market for the gas ‘at the well.’ In order to market the gas, it first had to be compressed. . . . There existed no purchaser, or market, for the gas as it existed in die wellhead because of its low pressure. Thus, .compression being required to market die gas, said charges were post-production costs and as such were properly deductible from nonoperating interests.” 571 F. Supp. at 1415-16.
In holding that the compression costs charged by TXO were not deductible (though those charged by Delhi were deductible), the Parker court distinguished Martin:
“Whereas the operator’s compression in Martin was necessary to deliver die gas into the purchaser’s gathering line, and not to actually bring die gas to the moutii of the well, a different situation existed in the case at bar. . . . [T]he reason for TXO’s installing the compressors was to increase production from the wells. TXO point to no evidence in die record to sustain the trial court’s finding that TXO compressed the gas only in order to enable it to be delivered into Delhi’s pipeline system; apparentiy, that was die purpose of Delhi’s five percent compression charge.” Parker, 716 S.W.2d at 648.
Based on Martin and Parker, the law in Texas is well established: Post-production expenses are borne proportionately by the lessor and the lessee, while the lessee alone bears the costs of production. If anything, the deductions allowable in Texas are broader than those allowable in Kansas, as Kansas does not permit deductions for compression costs. Under the analysis of Parker, the costs of transporting a marketable product to a distant market are post-production expenses. Therefore, transportation costs are deductible from royalties under Texas law.
REASONABLENESS OF DEDUCTIONS
In light of the district court’s finding that the deductions here were improper, the district court made no finding as to whether the deductions were reasonable. However, the district court expressed concern that “[t]he defendant’s position that it owns the improvements and may use them for its other business purposes (transporting gas from other leases) without compensating the royalty owner further complicates the situation.”
Marathon argues that its deductions were reasonable. Marathon points out that it recovered less than the lessors’ proportionate share of the costs and expenses even though the lessors benefitted from a reduced transportation fee and a higher purchase price. Marathon stresses that the district court implied that the deductions were reasonable when it indicated that it was not implying that Marathon was “guilty of improper financial creativity.”
Stemberger, conversely, reasons that Marathon’s deductions were not reasonable because they included such things as abstracting expenses, legal expenses, trucking expenses for transporting pipe to the location, meals for the supervisor, grass seed used to reseed the rights-of-way, etc. Most of these, if not all, would appear to be legitimate expenses in building a pipeline.
Transportation expenses may properly be deducted from royalties where royalties are payable based on market price at the well and where there is no market at the well and transportation to a distant market is necessary. However, the deductions must be reasonable. In Scott v. Steinberger, 113 Kan. at 68, this court noted the expenses associated with the pipeline constructed by the lessee: Construction cost was $61,680, rental value was $15,000 per year, operating expenses were $10,800 per year, and taxes on the pipelines were $5,100 per year. The district court found that the reasonable transportation charge was 7 cents per MCF. However, there is no discussion as to how that figure was calculated or whether it factored in the capital expenses of constructing the line. In Matzen v. Hugoton Production Co., 182 Kan. 456, 464-65, 321 P.2d 576 (1958), this court held that where expenses incurred in transportation and preparing gas for market were deductible from proceeds from the sale of gas, maintenance, depreciation, and ad valorem and other direct taxes were deductible but federal and state income tax expenses were not.
This case turns on the fact that the royalty was to be paid based on “market price at the well” and the gas was marketable at the well, but there was no market at the well. The parties in this case dispute Marathon’s deduction of transportation expenses, but there has been no evidence or finding as to what the market price at the well was. Because sale occurred away from the well or the lease premises, we assume that royalties were paid based on the market price at a distant market rather than market price at the well. Amicus API seems to recognize this. API suggests that this court should remand the case to the district court “to determine the ‘market price at the well’ by determining the reasonable cost to transport the gas from the wellhead to a point where it could be sold off the lease under circumstances where no market existed at the well and the lessee had to build its own connecting pipeline.”
Marathon disagrees with API and argues that remand is not appropriate because the parties have not requested it and because the only evidence presented was that the amount deducted was reasonable. Marathon also stresses that plaintiffs have not disputed the price actually received for the gas at the market off the lease.
The trial court has not ruled on the reasonableness of the method used by Marathon’s predecessor to calculate these deductions. We remand this issue to the trial court for that determination.
CERTIFYING THE CLASS
K.S.A. 60-223(a) permits an action to be maintained as a class action
“only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
K.S.A. 60-223(c)(3)(B) permits the trial court to divide the class into subclasses, with each subclass treated as a class.
The trial court certified this action as a class action and created subclasses by state. The court held that the numerosity requirements were satisfied for claims arising in Kansas, Oklahoma, Texas, and Louisiana, but not for claims arising in Colorado and Utah. The claims arising in Kansas involve 19 wells and 38 royalty owners. Evidence at trial revealed that the Oklahoma claims involve 16 wells and at least 69 royalty and overriding royalty owners, the Texas claims involve 29 wells and at least 80 royalty and overriding royalty owners, the Louisiana claims involve 1 well and at least 55 royalty and overriding royalty owners, the Colorado claims involve 2 wells and no more than 21 royalty and overriding royalty owners, and the Utah claims involve 2 wells and no more than 18 royalty and overriding royalty owners.
Marathon argues that the district court improperly certified this action as a class action because the plaintiff failed to satisfy her burden to show numerosity and that joinder of all interest owners was impracticable. Because the claims arising, in Kansas, the named class representative’s state, involve only 38 royalty interest owners, Marathon reasons that joinder of all owners was not impracticable. Marathon concludes that as the action was not properly maintainable as a clsss action in Kansas, the district court could not certify a subclass for any other jurisdiction. Marathon does not argue that the other prerequisites to class certification were not satisfied here.
Marathon cites Schupbach v. Continental Oil Co., 193 Kan. 401, 394 P.2d 1 (1964). In challenging deductions made to his royalties on an oil and gas lease, the plaintiff sought to maintain the action as a class action and alleged that there were 23 other royalty owners under the lease at issue. The trial court refused to permit the action to proceed as a class action, and this court held there was no error. 193 Kan. at 406-07.
Here, the district court did not err here in permitting Stemberger to maintain this action as a class action. The plaintiff class includes at least 242 members in 4 states. This satisfies the numerosity and impracticability of joinder requirements of K.S.A. 60-223(a). Moreover, the fact that the district court created subclasses does not destroy the numerosity finding here. Aside from claims arising in Colorado and Utah, which were dismissed for lack of numerosity, claims arising in Kansas have the fewest number of royalty owners: 38. This number is sufficient to show numerosity and impracticability of joinder. There is no set number of class members which must be shown to warrant maintaining the action as a class action. Joinder of all parties need not be impossible, just impracticable. See Newman v. Tualatin Development Co. Inc., 287 Or. 47, 597 P.2d 800 (1979). Assuming all Kansas plaintiffs were joined, there would be 38 separate plaintiffs and potentially as many attorneys involved in the case. This would not lend itself to efficient judicial administration. The trial court did not abuse its discretion in certifying this action as a class action and in creating subclasses.
NOTICE AND OPPORTUNITY TO OPT OUT
The district court conditionally certified the class on February 5, 1992. Following a hearing on November 25, 1992, and by journal entry filed January 22, 1993, the district court certified the class and created subclasses for the various states.
On December 17, 1992, plaintiff Stemberger filed a motion for an order concerning notice to the class members of the class action suit. Plaintiff submitted a proposed form of notice for approval by the court. Marathon responded with its own proposed form of notice. Marathon asked the court to require that notice be mailed no later than January 25, 1993, and that notice be published no later than February 1, 1993. Marathon s proposed form of notice to be mailed to class members included a request for exclusion form and stated that the form must be returned to plaintiff’s counsel postmarked on or before February 10, 1993. The trial court adopted Marathon’s proposed form, including the requirement that any exclusion request be postmarked on or before February 10, 1993.
Plaintiff’s counsel received between 90 and 100 exclusion requests which were postmarked on or before February 10, 1993. Plaintiff’s counsel received an additional seven exclusion requests which were postmarked after February 10, 1993, but before the date of trial. The claims attributable to these seven class members range from 8 cents to $685.18 and total $1,667.57. At trial, Marathon asked the court to exclude those members of the class who requested exclusion after February 10 but before trial. In its journal entry deciding the merits of plaintiffs’ action, the trial court excluded only those class members who strictly complied with the exclusion provisions.
Marathon argues that the class was not given reasonable notice of the action and opportunity to opt out. Marathon points out that Stemberger initiated this action in January 1991, but Stemberger did not seek an order concerning notice to the class until December 17, 1992. Notice was ultimately mailed on January 25, 1993, and trial was on February 25, 1993. Marathon reasons that the short period of notice here did not satisfy minimal due process requirements and was not reasonable. Marathon makes no argument that the content of the notice was inadequate or that the notice was unreasonable in any way except for the timing.
In Wortman v. Sun Oil Co., 241 Kan. 226, 755 P.2d 488 (1987), aff’d 486 U.S. 717, 100 L. Ed. 2d 243, 108 S. Ct. 2117 (1988), this court stated that minimal due process requirements must be satisfied before a district court may assert jurisdiction over a nonresident class member. The nonresident class member must be given notice and an opportunity to remove himself or herself from the class by returning an exclusion request form to the court. 241 Kan. at 230. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985). These requirements mirror the statutory requirements in Kansas. K.S.A. 60-223(c)(2) provides that in a class action of this nature,
“the court shall exclude those members who, by a date to be specified, request exclusion, unless the court finds that their inclusion is essential to the fair and efficient adjudication of the controversy and states its reasons therefor. To afford members of the class an opportunity to request exclusion, the court shall direct that reasonable notice be given to the class . . . .”
Additionally, in Wortman, 241 Kan. at 230, this court stated: “Notice to class members must be sent long before the merits of the case are adjudicated. 7B Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1788 (1986).”
Here, notice was mailed to class members only one month before trial. Plaintiff concedes that “perhaps additional notice might have been desirable.” However, plaintiff insists that additional notice was not required and that the notice provided was not unreasonable.
K.S.A. 60-223(c)(2) requires that “reasonable notice” be given to class members. The Wortman court stated that notice must be sent “long” before the merits of the action are adjudicated. It would seem that “minimal due process requirements” contemplate that notice should usually be given more than one month before trial. Potential class members should have the opportunity to consult with counsel before deciding whether or not to opt out of the class, and giving notice only one month before trial and requiring exclusion requests to be postmarked no more than 16 days after the notice is mailed generally does not give the potential class members such an opportunity.
It is noteworthy that only seven members of the class in this action filed untimely exclusion requests, and all seven requested exclusion prior to the date of trial. All seven had small claims. Marathon submitted no evidence that other class members attempted to opt out of the class after trial or would have requested exclusion had the notice given them more time. Although this court does not condone the giving of notice of a class action to potential class members only one month before trial, we cannot say that the notice in this case violated minimal due process requirements.
FAILURE TO EXCLUDE
K.S.A. 60-223(c)(2) requires that class members request exclusion by a date specified by the court before the court must exclude them from the class. Specifying a deadline for exclusion requests lies within the trial court’s discretion. The date specified by the district court in this case was February 10, 1993. Marathon does not argue that the district court abused its discretion in setting this date.
Marathon does argue that the trial court abused its discretion in failing to exclude class members who requested exclusion after February 10, 1993, but before the date of trial. The deadline for exclusion set by the court was only 16 days after notice was mailed to potential class members. The seven class members Marathon seeks to exclude from the class requested exclusion prior to the date of trial. Had the trial court permitted exclusion of these members, there would have been no question of abuse of discretion.
The trial court’s failure to exclude these seven class members does not automatically constitute an abuse of discretion. Marathon itself suggested the deadline of February 10, 1993, for exclusion requests in its proposed form of notice to class members. The notice given to the class members clearly specified the deadline for exclusion requests. Between 90 and 100 exclusion requests were timely submitted. Marathon has made no showing as to why these seven exclusion requests were untimely, e.g., the requests were not timely submitted because the class members received the notice only after the deadline had expired. K.S.A. 60-223(c)(2) mandates exclusion of only those class members who request exclusion by the date specified by the court. Exclusion of other members, therefore, lies within the trial court’s discretion. Marathon has not shown that the trial court’s failure to exclude members who untimely requested exclusion constituted an abuse of discretion.
The trial court is affirmed in part and reversed in part, and the case is remanded for a determination of whether the lessee’s method of calculating a share of the cost of the pipeline was reasonable and whether the items included in the calculation were reasonable and necessary.
Holmes, C. J., not participating.
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The opinion of the court was delivered by
Abbott, J.:
Plaintiff Joyce Crandon brought this action after she was discharged from her position as general counsel for the Office of the State Banking Commissioner (OSBC). Plaintiff had reported to the FDIC alleged violations of federal and state law committed by the Deputy Commissioner, Judi Stork. Plaintiff alleged a common-law whistle-blowing retaliatory discharge claim, a claim for violation of K.S.A. 1994 Supp. 75-2973, and a 42 U.S.C. § 1983 (1988) claim for violation of her First Amendment right to free speech. Plaintiff later sought to amend her complaint to include a free speech retaliatory discharge claim. The trial court granted the defendants' motion for summaxy judgment. Plaintiff appealed, and the case was transferred to this court from the Court of Appeals.
The trial court found the following undisputed facts:
“Ms. Crandon carried the title of general counsel to the office of the state bank commissioner [defendant Dunnick] and had the status of an assistant attorney general. She began upon her duties on November 18, 1991. Her position was in the unclassified civil service. See, K.S.A. 75-3135; K.S.A. 75-2935(l)(j) and (m). As such, she had no tenure and was an ‘at will’ employee. Compare, Riddle v. City of Ottawa, 12 Kan. App. 2d 714, 716-19 (1988), pet. rev. den., 243 Kan. 780 (1988).
“. . . . [I]t is the state bank commissioner who has the principal authority under K.S.A. 9-1701 et seq. to execute the laws and to examine and regulate banks.
“. . . . The state bank commissioner is appointed by the governor and confirmed by the State Senate. It is the bank commissioner’s duty to administer the state’s banking laws. . . . Further authorized is a deputy commissioner appointed by the commissioner. The Deputy Commissioner is in the unclassified civil service and enjoys no tenure, but serves at the pleasure of the state bank commissioner. See, K.S.A. 75-3135.
“The remaining staff of the agency, exclusive of clerical personnel, consists of individuals holding office and authority as ‘examiners’ whose duties involve actual performance of, or supervision of, examinations of state chartered banks. All these personnel, as well as clerical staff, hold positions in the state classified civil service system, meaning they are not subject to dismissal without cause. See, K.S.A. 75-3135; 75-2935(2).
“It was the duty of Ms. Crandon to act as die legal advisor to, and attorney for, this agency. Beginning approximately April to May 1992, one of the review examiners, Erik Berggren, became aware that the Deputy Commissioner, Judi Stork, who had held appointment in the agency since 1981, first as an examiner and subsequentiy, at the time in question, in the position of deputy commissioner, could be considered to have existing loans from two state chartered banks, the State Bank of Baileyville, also a bank in which her financial disclosure statement filed pursuant to K.S.A. 46-247 et seq. disclosed she had a ‘substantial interest’, and from the Southwest Bank and Trust in Topeka.
“One loan from the State Bank of Baileyville consisted of a note signed only by her husband, but the resulting mortgage on her home was signed by both [her] and her husband. Other loans consisted of a series of overdrafts on a personal checking account she held with that bank. Another loan existed at the Southwest Bank and Trust upon which, although Mrs. Stork was not a signatory to the loan documents, the collateral, a car, was titled in the name of she and her husband, he being the sole signator on the loan. For the purposes here it is not necessary for the court to determine whether, in fact, Mrs. Stork was a loan recipient in each circumstance, however, for the purpose of defendants’ motion the court shall presume in each instance she was a loan recipient.
“. . . Mr. Berggren believed that such loans placed Mrs. Stork not only in violation of die agency’s own internal written ethics code, but also constituted a violation of state and federal banking laws.
“In this regard, K.S.A. 9-1701(a) provides:
‘The commissioner or the commissioner’s assistant or examiners shall visit each bank and trust company at least once every 18 months, and may visit any bank or trust company if the commissioner deems it necessary, for the purpose of making a full and careful examination and inquiry into the condition of the affairs of such bank or trust company. For such purpose die commissioner, the commissioner’s assistant and examiners are authorized to administer oaths and to examine under oadi the directors, officers, employees and agents of any bank or trust company. Such examination shall be reduced to writing by the person making it and such person’s reports shall contain a full, true and careful statement of the condition of such bank or trust company. The commissioner in lieu of making a direct examination and inquiry may accept the examination and report of an authorized federal agency. The commissioner shall provide to the board of directors of the bank or trust company a copy of the examination report written by the state examiners. Neither the commissioner, the commissioner’s assistant nor any examiner shall examine any bank or trust company in which the person making such examination is a stockholder or is otherwise financially interested or to which bank or trust company or any officer tirereof the person making the examination is indebted.’ (Emphasis supplied.)
“Also noted is 18 U.S.C. 213 which, provides:
“Whoever, being an examiner or assistant examiner of member banks of the Federal Reserve System, financial institutions the deposits of which are insured by the Federal Deposit Insurance Corporation, which are branches or agencies of foreign banks (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978 [12 USCS Sec. 3101(1), (3)]), or which are organizations operating under section 25 or section 25(a) of the Federal Reserve Act, or a farm credit examiner or examiner of National Agriculture Credit Corporations, or an examiner of small business investment companies, accepts a loan or gratuity from any bank, branch, agency, corporation, association or organization examined by him or from any person connected therewith, shall be fined no more than $5,000 or imprisoned not more than one year, or both; and may be fined a further sum equal to the money so loaned or gratuity given, and shall be disqualified from holding office as such examiner.’ (Emphasis supplied.)
“Further, to be noted, as it will be addressed subsequent, is 12 U.S.C. 1289, as amended, as here relevant:
‘(a) Prohibition
(1) In general
Except with the prior written consent of the Corporation—
(A) any person who has been convicted of any criminal offense involving dishonesty or a breach of trust, or money laundering or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense, may not—
(i) become, or continue as, an institution-affiliated party with respect to any insured depository institution;
(ii) own or control, directly or indirectly, any insured depository institution; or
(in) otherwise participate, directly or indirectly, in the conduct of the affairs of any insured depository institution’;
“Further, in reference to the above statute, the phrase ‘institution affiliated party’ is defined in 12 U.S.C. 1813(u), as here relevant as follows:
‘(1) any director, officer employee, or controlling stockholder (other than a bank holding company) of, or agent for, an insured depository institution;
(3) any shareholder (other than a bank holding company), consultant, joint venture partner, and any other person as determined by the appropriate federal banking agency (by regulation or case-by-case) who participates in the conduct of the affairs of an insured depository institution;
“Subsequent, probably in April to Mayor June 1992, Mr. Berggren first brought his concerns to Ms. Crandon’s attention. Further, this underlying factual situation concerning Mrs. Stork became a part of a civil service hearing in a termination proceeding initiated by the Commissioner regarding an employee (not related to this case) that had been appealed by the employee examiner to the state civil service board at which Ms. Crandon appeared in defense of the agency action. The employee had been terminated based on her conviction for violating 18 U.S.C. 213. The issue at note arose from an apparent ‘what’s good for the goose is good for the gander’ defense claiming that Mrs. Stork had loans with the state chartered banks and she was not terminated. The terminated employee was reinstated by the civil service board. This hearing was on July 6,1992. Ms. Crandon had argued before the Kansas civil service board that Mrs. Stork was not in violation of any such laws and the circumstances were not comparable. . . . ■
“Mrs. Stork’s circumstance was also raised by state bank examiners as a part of the regular examination of the State Bank of Baileyville on going circa this same period. At one point in June 1992, and again the week of July 6,1992, Ms. Crandon made, on each occasion, a phone inquiry to the Federal Deposit Insurance Corporation regional office in Kansas City, specifically, to Mr. Lamberti, its regional counsel, whether in his view Mrs. Stork’s circumstances were in violation of federal law, specifically 18 U.S.C. 213. Mr. Lamberti subsequently has testified that he did not perceive a violation, but that such an issue was an internal one for the state agency. Admittedly, he said his response was ad hoc and without research. Notwithstanding, in considering defendants’ motion tire court will consider Mr. Lamberti’s response as sufficiently ambivalent such that plaintiff might believe his response at least left a question raised as to the violation of federal law.
“Sometime during the week of July 6,1992, Ms. Crandon advised Mr. Berggren to turn the matter over to the FDIC, which he did. Mr. Berggren has testified he would have done so in any manner notwithstanding any advice of Ms. Crandon.
“Subsequently, and for the purpose of the motion and taken as true, Commissioner Dunnick learned at a meeting with the FDIC on July 9, 1992, of Mr. Berggren’s reporting to the FDIC, Ms. Crandon’s advice to him to do so, and her inquiries to Mr. Lamberti.
“At no time prior to her termination, except during questioning at the civil service hearing on July 6, 1992, when Mrs. Stork and Mr. Dunnick were called as witnesses, had Ms. Crandon personally talked with Mr. Dunnick or Mrs. Stork about Mrs. Stork’s status vis a vis the identified loans and whether Mrs. Stork’s loan circumstances violated federal or state banking laws, state ethics statutes, or internal agency ethics policy.
“At no time prior to Ms. Crandon’s termination did Ms. Crandon attempt, in any manner, to persuade Mr. Dunnick, as the agency’s head, that he should affirmatively act in some fashion under his authority as Commissioner to remedy the situation she believed was presented arising from the fact of Mrs. Stork’s loans.
“Ms. Crandon asserted through counsel at oral argument in this case that she made one phone call to the attorney general’s office and was told they don’t give opinions on criminal matters. The person called is not identified.
“There is no evidence Ms. Crandon contacted any member of the banking board or the Governor’s office before her termination.
“For the purpose of the motion, it is assumed Mr. Berggren told Ms. Crandon that he had discussed the loans with Mrs. Stork and that he had brought them to the attention of Commissioner Dunnick who said he would look into it. The conversations between Berggren, Stork, and Dunnick probably occurred prior to May 27,1992.
“Whether Ms. Crandon knew Mrs. Stork had told Mr. Berggren she had never had authority to examine the State Bank of Baileyville since she first came to the agency or that Mrs. Stork had closed her checking account at the State Bank of Baileyville is unclear. However, she did not know that Mrs. Stork had replied to the inquiries by memo to the commissioner. Notwithstanding, these facts could have been confirmed by agency documents or official inquiry to the bank. Ms. Crandon did not see these documents and the response of Mrs. Stork to inquiries posed to her as to her authority to examine the State Bank of Baileyville when she was a witness, under oath, in the Emery civil service hearing were that she had no such authority. Ms. Crandon knew from Mr. Berggren that Commissioner Dunnick had reviewed the matter by June 1,1992, and had concluded Mrs. Stork’s situation violated no state policy, but she did not know the basis for his decision except for what she may have learned at the civil service hearing.
“Further, no evidence has been proffered by the plaintiff that she had my other source of factual information to form my opinion that Mrs. Stork’s loans were in violation of my law or policy other than by talking to Mr. Berggren or to Mr. Lamberti, except to confirm by inspection at die Record of Deeds’ office that the ownership of the property md the mortgage on it to the State Bank of Baileyville was in both Mr. md Mrs. Stork’s name md to confirm tide to the motor vehicle subject of the lorn md lien of Southwest Bank md Trust was likewise in their names. Plaintiff is unable to say what, if my, case law she reviewed prior to my advice to Mr. Berggren or used in the formulation of my opinion of wrongdoing otiier than St. Francis Hospital v. Browles, 251 Kan. 334 (1992), which explains the doctrine of necessaries vis a vis one’s spouse’s liability for the debts incurred by die other. The statutes or regulations upon which she stated she relied were K.S.A. 9-1701, 12 U.S.C. 213, 12 U.S.C. 1289, md 12 C.F.R., part 215.
“Plaintiff proffers no evidence existing at the time of her report to support her assertion that Mrs. Stork had unlawfully examined the Southwest Bank md Trust or interfered with the examination of the State Bmk of Baileyville. Ms. Crmdon did state she believed Mrs. Stork had authority to examine my Kmsas bank. Ms. Crmdon states she investigated whether Mrs. Stork was in violation of 12 U.S.C. 1289 by examining Case 82 CR 234 in the Shawnee County District Court md Mrs. Stork’s disclosure of substantial interest statements filed with the Secretary of State, but did not discuss with myone, but Mr. Berggren, whether Mrs. Stork’s prior diversion agreement placed her in violation of federal law because she had m ownership interest in the bmk. She undertook no other investigation nor inquiry. There is no evidence the subject matter of her 12 U.S.C. 1289 inquiry was part of my ‘whistleblowing’ claim or that Mr. Dunnick knew of it, however, it is accepted by the court as advanced as one motivation by Ms. Crmdon for her ‘reporting’ activity and procedure. Of course, factual information arising after her ‘reporting’ would not be a proper standard to test the reasonableness of her belief at the time of reporting.
“It seems substantially clear and not reasonably subject to material dispute what Ms. Crandon’s ‘whistleblowing’ and/or ‘free speech/public concern’ communication claim is alleged to be. It consists of up to two inquiries to Mr. Lamberti of tire FDIC concerning loans made to a spouse of what Ms. Crandon represented was a deputy commissioner or ‘supervisory examiner’ and, for the purpose of this matter, further inquiries and reporting of the circumstances concerning such loans to the FDIC by Erik Berggren which, though encouraged by Ms. Crandon, Mr. Berggren would have proceeded on in such manner in any fashion.
“The plaintiff’s claim is that she was terminated by her employer, the state bank commissioner, for this collective ‘reporting’ to the FDIC.”
Defendants moved for summary judgment on all of plaintiff’s claims. The trial court granted the defendants’ motion. Resolving disputed facts in plaintiff’s favor, as the court was required to do, the court found that but for plaintiff’s acts of communication to the FDIC, she would not have been terminated. The court also assumed that Commissioner Dunnick was aware of the communication. Central to plaintiff’s claims, the court found, was the issue whether the communications were legally protected under the circumstances so as to insulate plaintiff from termination, an issue of law.
In evaluating the issue, the trial court found that the plaintiff had spoken on a matter of public concern. However, the court found that the flaw in plaintiff’s claim was based on uncontroverted facts. First, she was the attorney for the agency whose employee was “reported” upon. The knowledge plaintiff had was derived from her position as the OSBC’s attorney. She took no steps to present her concerns to the OSBC’s head, Commissioner Dunnick, who had the authority to act against the employee alleged to be violating the law. The court found that plaintiff’s reporting was contrary to the Model Rules of Professional Conduct (MRPC), adopted by this court in Supreme Court Rule 226 (1994 Kan. Ct. R. Annot. 286), and that there was no justification for plaintiff’s failure, as the OSBC attorney, to approach, counsel, and advise Dunnick on the issue. Moreover, the court found that plaintiff proceeded on her course of conduct without more than a second hand knowledge of the facts rather than relying on her own independent investigation. She did not report the full facts to her FDIC contact, Mr. Lamberti, because she did not know the full facts, including whether Stork had ever examined the Southwest Bank and Trust or personally participated in the examination of the State Bank of Baileyville.
The trial court further found that the statutes thought to have been violated by Stork, 18 U.S.C. § 213 (1988) and K.S.A. 9-1701(a), were not applicable unless Stork had in fact examined either of the banks in question or had interfered in or passed upon a matter in the examination of the banks. The court also found that whether Stork had violated 12 U.S.C. § 1829 (1988), which prohibits a person who has entered into a diversion agreement from being involved in a financial institution without prior approval by the FDIC, was irrelevant because the prior diversion was not reported to the FDIC by plaintiff; the court further found that even if the claim was relevant, plaintiff never determined whether Stork had obtained written permission from the FDIC and there was a question whether the statute applied to Stork’s minimal ownership interest (a 4.9% share of stock in a bank holding company that owned the State Bank of Baileyville).
The trial court held that to establish a whistle-blowing claim, plaintiff must establish that a reasonable person in her shoes, an attorney, would believe that a violation of law or matter of public concern existed and that the whistle-blowing was made in good faith and not for a corrupt or otherwise specious motive. The court found both a lack of good faith and a lack of good motive based on plaintiff’s avoidance of a professional duty to her clients and her rush to judgment on supposition and surmise. Moreover, if the information was confidential when communicated because of the omission of a duty to a client or the lack of consultation with the client, the communication would grossly undermine the working relationship between the client and attorney and the balance of free speech and whistle-blower protection should not attach. The court pointed out that here the attorney-client relationship was not only neglected, but wholly abandoned.
The court pointed out that plaintiff’s actions, taking the matter out of the hands of the OSBC, embarrassed Dunnick; how, after that, could the attorney-client or boss-employee relationship continue? Moreover, no exigency required plaintiff to avoid the procedures set forth in MRPC 1.13(b) (1994 Kan. Ct. R. Annot. 328) to counsel her clients. The court pointed out that plaintiff’s actions were not the reasonable acts of an attorney toward her clients. Plaintiff’s actions were those of an attorney representing herself rather than her clients.
The trial court did acknowledge that plaintiff’s violations of the Model Rules of Professional Conduct did not present an absolute bar to her claims. However, where plaintiff’s claims are based on public policy and the right to speak on matters of public concern, those rights must be balanced with responsibility. Because of plaintiff’s noncompliance with the ethical rules of her profession, her claims were found to be significantly diminished. Citing various authority, the court found that where the asserted rights did not interfere with the employment position, termination was not permitted, but where the right asserted impaired or impeached the working relationship, termination was permitted. The court, in essence, found that plaintiff’s exercise of her rights substantially interfered with her working relationship with her clients.
The court concluded:
“The balancing of Ms. Crandon’s interests under the First Amendment when weighed with her non-compliance with the tenets of her profession and the interest of the State of Kansas in properly assuring the fulfillment of the proper duties of the general counsel for file agency as well as the duties of the state bank commissioner to administer his office in the first instance, require Ms. Crandon’s claims to be dismissed under the principles of law announced in Connick v. Myers, [461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)], and Pickering v. Board, of Education, [391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)].
“Mr. Dunnick was well within his discretion to end a public and professional relationship Ms. Crandon had completely and inappropriately destroyed without fear of legal recourse by Ms. Crandon.”
Addressing plaintiff’s claim under K.S.A. 1994 Supp. 75-2973, the court found that plaintiff disclosed information which was confidential pursuant to MRPC 1.6(a) (1994 Kan. Ct. R. Annot. 310) and MRPC 1.13(b) and until she satisfied those rules, plaintiff had no duty or privilege to disclose the information. Some of the information (that obtained from the bank examination documents) was also confidential under K.S.A. 9-1712 without the Commissioner’s approval. Moreover, the court found that no reasonable attorney would have perceived the conduct of the defendants as the basis for an out-of-agency report at the time it was made. The court specifically found that information which is confidential under the Model Rules of Professional Conduct is confidential “under any other provision of law” as that phrase is used in K.S.A. 1994 Supp. 75-2973(c)(4)(C), which permits discipline of an employee who releases confidential information. Additionally, the court found that plaintiff’s knowledge that Stork had overdraft loans was confidential information.
Plaintiff appeals the trial court’s ruling. This court permitted the ACLU and the Kansas Disciplinary Administrator to file briefs as amici curiae.
I. SUMMARY JUDGMENT
The plaintiff contends that the trial court erred in making certain findings of fact. She points out, correctly, that the trial court and this court must resolve all facts and inferences which may be drawn from the evidence in her favor as the party opposing summary judgment. See Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
First, the plaintiff argues that the trial court erred in concluding that she had reported on the OSBC and Dunnick. She claims that she reported only on the actions of Stork in her individual capacity. However, nowhere does the trial court find that plaintiff reported on the OSBC and Dunnick. Plaintiff is correct in suggesting that she reported on the actions of Stork. It does not appear that the trial court found otherwise.
Second, plaintiff argues that the trial court erred by resolving state of mind and motivation against her. She contends the trial court wrongfully accuses her of “assumption of agency power and authority to herself” and “her rush to judgment on supposition and surmise.” Plaintiff cites Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (1980). In Hein, this court cautioned against granting summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. 228 Kan. at 256. The plaintiff is correct that there is no evidence she had a corrupt motive or was being vindictive. However, the quotes she points to from the trial court’s journal entry concerning her actions do not show that the trial court determined her state of mind and motivation.
Third, the plaintiff argues that the trial court erred in concluding that she reported confidential information to the FDIC. Plaintiff suggests that the information concerning Stork’s mortgages, car loans, and her diversion for theft of services were matters of public record. She also suggests that the trial court erred in relying on K.S.A. 9-1712, which provides that “[a]ll information the state bank commissioner generates in making an investigation or examination of a state bank or trust company shall be confidential information,” because that statute must be strictly construed to mean documents generated only by the Commissioner. Plaintiff’s construction, though not clearly argued, seems to be that documents prepared by other sources, including by OSBC employees other than the Commissioner, are not covered by that statute. That construction is incorrect because the term “generates” encompasses documents prepared at the Commissioner’s direction, including documents prepared during the course of an OSBC investigation or examination of a bank or trust company. Plaintiff also argues that K.S.A. 9-1712(b) provides that confidential information may be disclosed upon written approval of the Commissioner. She reasons that the OSBC office policy of communicating information to the FDIC on a regular basis satisfies the approval necessary under subsection (b). It does appear that the OSBC had a policy of communicating information generated during bank examinations to the FDIC. However, the real issue concerning confidentiality relates to the fact she was attorney for OSBC. Simply stated, attorneys have a different relationship than other employees, and their conduct is measured by a different standard.
Finally, plaintiff argues that the trial court erred in determining that she did not make an adequate investigation of the facts. She suggests that this issue was not raised by the defendants and that the trial court should not have resolved it without giving the parties tire opportunity to supplement the record. Nothing in the record, however, shows that the plaintiff attempted to supplement the record concerning this issue after the trial court’s entry of judgment. Without our determining whether the plaintiff’s investigation was “adequate,” the record reflects the trial court found that plaintiff did “confirm by inspection at the Record of Deeds’ office that the ownership of the property and the mortgage on it to the State Bank of Baileyville was in both Mr. and . Mrs. Stork’s name and . . . confirm title to the motor vehicle subject of the loan and lien of Southwest Bank and Trust was likewise in their names.” The plaintiff also tells this court she reviewed federal and state statutes, case law, regulations, and internal ethics memoranda. The trial court did not ignore other aspects of investigation plaintiff claims to have done. The court merely found that plaintiff should have investigated whether Stork had actually examined or participated in examining the Southwest Bank and Trust and the State Bank of Baileyville. The plaintiff does not suggest she engaged in such investigation.
II. MODEL RULES OF PROFESSIONAL CONDUCT
The court held that plaintiff’s actions were contrary to the Model Rules of Professional Conduct, citing MRPC 1.2 Scope of Representation (1994 Kan. Ct. R. Annot. 295), 1.4 Communication (1994 Kan. Ct. R. Annot. 302), 1.6 Confidentiality of Information (1994 Kan. Ct. R. Annot. 310), 1.13 Organization as a Client (1994 Kan. Ct. R. Annot. 328), and 1.16 Declining or Terminating Representation (1994 Kan. Ct. R. Annot. 338).
The plaintiff argues that her conduct did not violate the Model Rules. She focuses on MRPC 1.6 and MRPC 1.13 and argues that she did not violate the rule of confidentiality. She points out that she had no attorney-client relationship with Stork or her husband, the persons she reported on. Stork was merely a constituent of her organization client, the OSBC. See MRPC 1.13. Moreover, the plaintiff argues, Stork never asked for plaintiff’s legal advice. The plaintiff also reiterates that the facts she conveyed were in the public domain, and she did not convey the information to entities other than the FDIC, such as the press. The plaintiff insists that she did not breach the attorney-client relationship she had with the OSBC. She maintains that the information was conveyed in a manner consistent with the established policy of the OSBC to convey information to the FDIC; she contends this policy permitted her to convey information to the OSBC without obtaining prior approval from Commissioner Dunnick. Finally, the plaintiff contends that K.S.A. 1994 Supp. 75-2973(b)(2) exempts her from obtaining prior approval.
The defendants’ response is that confidences arise even when the person involved does not approach the attorney. The defendants suggest that plaintiff had a duty to keep Dunnick reasonably informed on all matters related to the representation. Because, according to defendants, violations of state and federal banking laws were within thé scope of plaintiff’s representation, strict confidentiality attached regardless of the source of the information, and plaintiff had a duty to explain the matters to the client. Moreover, defendants argue, trust and confidentiality are at the core of an attorney-client relationship. The attorney’s duty is to advise and counsel, not prosecute her client. The defendants also point out that the drafters of the MRPC rejected a rule which would have permitted an organizational attorney to reveal information otherwise protected if the attorney deemed it necessary in the best interest of the organization. The defendants conclude that plaintiff was Commissioner Dunnick’s attorney and that she had a duty to advise him on legal matters in the operation and function of the OSBC. They point out that she obtained information during the course of her representation that Deputy Commissioner Stork may have violated state or federal banking laws, but the only comment Dunnick had heard plaintiff make was her argument during the Emery civil service hearing that Stork had not violated any laws. This followed plaintiff’s presentation of evidence (largely by leading questions) from Stork that her conduct did not violate any laws, rules, regulations, or guidelines. Therefore, the defendants reason, the plaintiff had a duty to counsel Dunnick as to her belief that Stork may have in fact violated laws. Because plaintiff went to the FDIC rather than to Dunnick, the essence of confidentiality was breached. Finally, the defendants reason that it is irrelevant that Stork did not seek plaintiff’s advice because organizational attorneys have a duly to advise constituents of potential conflicts and because that did not excuse plaintiff’s duty to inform the Commissioner about any actions he needed to take.
We believe the parties have become overly technical and argumentative about the trial court’s language. The trial court in general held that an organization’s general counsel has obligations different than those of other employees. In using the balancing test discussed below, an attorney’s obligation (as general counsel) is first and foremost to the organization. The balancing test as applied here includes the factors that general counsel reported a suspected violation or violations to an outside agency without first consulting with the head of the organization and that had she done so she would have learned that no violations had occurred. Whether plaintiff violated the Model Rules of Professional Conduct is not the determinative factor, and in fact a finding of no violation can be of no comfort to her.
The balancing test is set forth in Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), and Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), and weighs an employee’s First Amendment rights against the interests of the State as an employer in promoting the efficiency of the public services it performs through its employees.
In Connick, an assistant district attorney was involved and the United States Supreme Court said: ‘When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” 461 U.S. at 151-52. The Supreme Court held the discharge of the assistant district attorney did not offend the First Amendment.
The Connick Court also held that whether an employee’s right to speak on a matter of public concern outweighs the government employer’s interest in effectively providing services is a question of law and is subject to de novo review. See 461 U.S. at 150 n.10.
In Goffer v. Marbury, 956 F.2d 1045 (11th Cir. 1992), an attorney claimed wrongful discharge for exercising First Amendment rights. The court used language we deem applicable to our case:
“The existence or not of attorney-client relations also bears on whether there was present the ‘close working relationshi[p]’ referred to in Connick that gives rise to a ‘wide degree of deference’ to the employer’s judgment. Connick, 461 U.S. at 151-52, 103 S. Ct. at 1692. Moreover, definition of Goffer’s role with relation to defendants is prerequisite to addressing whether her speech so destroyed her effectiveness in that role that the government interest must prevail over her speech interest." 956 F.2d at 1051.
The Alabama Rules of Professional Conduct at issue in Goffer, as do the Kansas Model Rules of Professional Conduct, describe the role of an organization’s attorney in the attorney’s responsibilities owed to the organization and to the officers and employees of the organization.
As we view the matter, plaintiff was discharged because she was general counsel for the OSBC. The head of the OSBC had been advised of Stork’s possible violations, at least as to the bank audit, and had determined there was no violation. He then attended a civil service hearing in which plaintiff put Stork on the witness stand to establish that she had not violated any federal or state laws and that no rules, regulations, or internal policies had been violated. Plaintiff argued to the hearing panel that Stork’s testimony was that no violation had occurred.
The OSBC head then attended a meeting with FDIC officials involving other matters and he learned for the first time that plaintiff had twice reported possible violations (once prior to the civil service hearing and a second time either immediately preceding or immediately after the panel hearing, based on largely different facts) to the FDIC without checking facts that were available to her which would have changed a reasonable attorney’s mind. Whether the second reporting by plaintiff to the FDIC occurred before or after the panel hearing is not clear. The panel hearing was held on July 6, and the second telephone call reporting the alleged violations occurred (according to plaintiff’s testimony) the first week in July.
Plaintiff’s position as chief counsel for the organization required a close working relationship with Dunnick. Dunnick relied on plaintiff for legal advice for his guidance and for the guidance of the organization and its employees. The organization’s attorney has a responsibility to give advice when necessary to prevent or rectify unlawful or improper acts of the organization and its employees. This advice must be given by presenting the attorney’s opinion to the proper person or persons in the organization who have the authority to correct the problems. A close relationship and need for trust are essential in an attorney’s relationship with the organization. Thus, a wide degree of deference to Dunnick’s decision to terminate plaintiff is appropriate when something occurs to disrupt that relationship and trust.
We conclude that, although plaintiff may have acted in the utmost good faith, she used poor judgment and did not take steps available to her that a reasonably prudent attorney would have taken prior to reporting what she suspected to be violations to the FDIC, thus destroying her effectiveness as counsel for the OSBC and its employees and especially with the organization’s head, Frankie Dunnick. Her acts destroyed any effectiveness she could have with the organization in the future. The governmental interest here must prevail over any First Amendment rights that might be involved. Thus, the trial court did not err in granting summary judgment to the defendants on plaintiff’s First Amendment claim.
III. K.S.A. 1994 SUPP. 75-2973
K.S.A. 1994 Supp. 75-2973 provides in pertinent part as follows:
“(b) No supervisor or appointing authority of any state agency shall:
(1) Prohibit any employee of the agency from reporting any violation of state or federal law or rules and regulations to any person, agency or organization; or
(2) require any such employee to give notice to the supervisor or appointing authority prior to making any such report.
“(c) This section shall not be construed as:
(4) prohibiting disciplinary action of an employee who discloses information which: (A) The employee knows to be false or which the employee discloses with reckless disregard for its truth or falsity, (B) the employee knows to be exempt from required disclosure under the open records act or (C) is confidential under any other provision of law.”
The trial court found that no reasonable attorney in plaintiff’s shoes could perceive the conduct of the defendants as the basis for an out-of-agency report at the time it was made. The court found that plaintiff’s report was made with reckless disregard for its truth or falsity and that she released information which was confidential under the Model Rules of Professional Conduct.
The trial court pointed out that plaintiff had only a second-hand knowledge of facts and did not conduct her own independent investigation of the facts and consideration of the law. For example, plaintiff never knew whether Stork had personally participated in the ongoing examination of the State Bank of Baileyville and did not know whether Stork had compromised that examination. She also did not know that Stork had closed her checking account with the State Bank of Baileyville. Moreover, the court stated, even by a cursory review of 18 U.S.C. § 213, the principle statute thought to be violated, there was no violation under U.S. v. Napier, 861 F.2d 547 (9th Cir. 1988), nor was the state statute, K.S.A. 9-1701(a), violated because Stork was not personally involved in examining a bank in which she had a financial interest. The trial court stated:
“Accordingly, as a matter of law, unless Mrs. Stork had in fact proximately examined any bank at which she or her husband had loans, or subsequently and proximately obtained loans, or had interfered in, or aided and abetted in such interference, or passed upon a matter in the examination of such a bank on a material matter as Deputy Commissioner, Mrs. Stork’s position as Deputy Commissioner would not place her in violation of, or within the sanction of, any criminal or ethics statute cited by Ms. Crandon as a basis for her ‘report’.”
The trial court correctly determined that unless Stork had personally examined or been involved in any way in an examination of the two banks, Stork would not have violated the law. See Napier, 861 F.2d at 548. Stork’s financial interest in the State Bank of Baileyville following her pretrial diversion would likewise not be in violation of law if she received prior approval. Plaintiff could have conducted a further investigation before making her report to the FDIC to determine whether Stork had in fact been involved in the examinations of the State Bank of Baileyville and the Southwest Bank and Trust, and she could have obtained information whether Stork had obtained approval for her financial interest in the State Bank of Baileyville despite her pretrial diversion.
K.S.A. 1994 Supp. 75-2973(c)(4)(A) does not require a person to make sure the conclusions to be drawn from information are true before making a disclosure. However, a person receives no statutory protection when he or she makes a disclosure with a reckless disregard for the truth or falsity of the disclosure made. An attorney, and especially the chief counsel, is held to a higher standard for the reasons set forth in section II. We affirm the trial court on this issue.
IV. OTHER ISSUES
For the reasons stated in sections II and III, plaintiff’s common-law claims cannot be sustained.
Other issues raised by the parties need not be addressed.
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The opinion of the court was delivered by
Allegrucci, J.:
Scotty Adam appeals from his jury convictions of second-degree murder and aggravated robbery. He was sentenced to concurrent terms of 15 years to life and 5 to 20 years’ imprisonment.
Adam raises several issues on appeal. He claims error concerning the non-pattern instruction on aggravated robbery, the instruction on the accused’s initially provoking the use of force by the deceased, and the instructions on voluntary and involuntary manslaughter. He also claims error in admitting gruesome photographs into evidence and in the State’s suppression of exculpatory evidence.
The events leading to this tragedy started shortly after midnight on January 23,1993. Scott Miller, Dustin Rothfuss, and Scott Sanders stopped in Council Grove to buy gasoline at a convenience store. They were driving back from Emporia to Junction City, where they lived. They had been drinking on the road and for several hours in a bar in Emporia.
They were in Sanders’ car, and he was driving. Larry Shane and Andy Helton were sitting in a booth inside the convenience store; they laughed at Miller when he went in. Miller, who admitted being drunk, pulled a toothpick from the mouth of one of them. Then Sanders came in and, without exchanging words or getting involved with either of tihe young men in the booth, left with Miller. The convenience store clerk called the police.
As Sanders pulled out of the convenience store lot, a white Cámaro followed. The Camaro was being driven by Scotty Adam. Adam and J.B. Pritchard, both from Council Grove, had been “cruising.” They had pulled in near the gasoline pumps to watch because they had seen Miller and Sanders and thought they looked like they might start a fight. When Miller and Sanders ran out of the convenience store “yelling and stuff,” Adam and Pritchard decided to chase them out of town.
After getting out on the highway, Adam and Sanders tried to run each other off the road. Adam passed Sanders. Then Sanders passed Adam. Adam started to pass Sanders again, and Sanders moved his car to the left so that Adam went off the road on the left. Adam accelerated to get around Sanders. In a short time, one of the young men who had been inside the convenience store drove his truck alongside Adam’s Camaro and began slowing down. Adam slowed, too. When they stopped side by side, Sanders stopped behind them. They were approximately three miles north of Council Grove.
Adam testified that he anticipated a fight and stopped to watch it, but he did not want to be involved in it because he had observed at the convenience store that Miller and Sanders were big. Adam is 5'6" tall and at that time weighed 128 pounds. Sanders was 6'3" tall and weighed 200 pounds.
Sanders was angry, according to Miller, because Adam had swerved close to his car and Sanders was very protective of his car. Miller testified that others opened their doors first, but Sanders was the first person to emerge from a vehicle. On direct examination, Miller testified that, as Sanders got out of his car, he said to no one in particular, “Do you want some?” On cross-examination, he testified that Sanders jumped out of his car, ran up to the driver’s side of the Camaro, and yelled, “[Y]ou want some?” Miller saw Sanders hit Adam.
Pritchard testified that Sanders opened the driver’s door of the Camaro, said, “You want a piece of me?” and pulled Adam partway out of the car. Sanders had Adam up against the car door. Pritchard testified that Adam was “thrashing around out there.”
Adam testified that he likes knives and kept one in an unsnapped scabbard on the console in his car. As Sanders pulled Adam from the car, Adam grabbed his knife. Adam testified that Sanders repeatedly hit him. Adam hit Sanders in the back with the butt of the knife; Sanders hit Adam once more and caused him to slump down. It was then, according to Adam, that he “just started swinging” his knife and stabbed Sanders. Adam testified that he had no intention of using the blade. Sanders collapsed, bleeding from the chest.
Miller lay Sanders on the ground, and then Shane started hitting Miller. Adam testified that he was in shock. When he looked down and saw the knife in his hand, he just threw it away.
Adam testified that he walked over to where Sanders was lying and moved Sanders’ head to see if he was moving or awake. Before trial, Pritchard made the statement to a law enforcement officer that Adam had kicked Sanders in the head as he walked by. At trial, Pritchard testified that Adam “just kind of scooted” Sanders’ head or shoulder as he walked by.
As Adam walked back to his car, he picked a cap up off the ground and threw it into the car. Adam testified that he did not know that the cap belonged to Sanders; in fact, he was not even aware of what it was.
Realizing that Sanders was down, the young men from Council Grove got back in their vehicles and drove away. At the double shelters on the lake, they stopped and got out of their vehicles. Adam testified that by then he realized that what he had tossed in his car was a cap and that it did not belong to him or his friends. Helton suggested that he bum the cap. Shane gave him a lighter, and Adam set it on fire.
By shortly after 1:00 a.m., a law enforcement officer and an ambulance had been dispatched to the scene of the stabbing. Sanders was not breathing and had no pulse upon arrival at the emergency room of the hospital, and efforts to resuscitate him were not successful. He had four stab wounds — in the left side of his chest, the upper right side of the abdomen, in the lower part of the left abdomen, and on the left shoulder. An autopsy was performed, and the pathologist testified that the cause of death was internal bleeding caused by the stab wound to the chest. She stated that Sanders would have lost consciousness within a few seconds of being stabbed in the chest.
At 1:39 a.m., Adam walked into the sheriff’s office and said, “I’m the one that stabbed that guy.” In response to the sheriff’s question about what happened, Adam said, “I wasn’t getting my ass kicked.”
About mid-morning of January 25, Adam was examined by Dr. Lora Siegle at the request of law enforcement officers with regard to his complaint of pain in his left side. She found a small bruise on his left side. She found no other bmises, no bumps on his head, no abrasions, and no loose teeth. In a post-trial motion, it came out that a deputy sheriff had examined Adam on January 24 and reported finding a bump on Adam’s forehead which extended up into his hairline.
We first consider Adam’s claim that the non-pattern instruction on aggravated robbery was improper. Adam was charged with willfully taking a red baseball cap from the presence of Scott Sanders by force. The district court gave two jury instructions on aggravated robbery. The first was the pattern instruction, PIK Crim. 3d 56.31:
“The defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally took property from the person or presence of Scott O. Sanders;
2. That the taking was by force;
3. That the defendant inflicted bodily harm on any person in the course of such conduct; and
4. That this act occurred on or about the 23rd day of January, 1993, in Morris County, Kansas.”
The second instruction, which is the subject of this issue, stated:
“Under circumstances where a defendant causes bodily harm to a person which results in the death of such person, and the defendant later takes property from the ‘person’ or ‘presence’ of the deceased and where the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take property from the person or presence of the deceased, without resistance, such is sufficient to constitute the offense of Robbery or Aggravated Robbery.”
It was requested by the State, and defense counsel strenuously argued against its being given to the jury.
The State contends that this court should not reverse Adam’s aggravated robbery conviction due to the district court’s adding the non-pattem instruction unless it is clearly erroneous. Defense counsel, however, interposed a timely and specific objection to the instruction. The appropriate standard for appellate review, therefore, is as follows:
“When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
It is Adam’s contention that the non-pattern instruction does not properly state the law as applied to the facts. It is the State’s position that the jury could not reasonably have been misled by the non-pattern instruction if it had read, the instruction, as it must be read, in conjunction with the pattern instruction on aggravated robbery.
In State v. Myers, 230 Kan. 697, Syl. ¶ 2, 640 P.2d 1245 (1982), the court decided that a conviction of robbery may be sustained by proof that prior force made it possible for the defendant to take property from the victim’s body. Myers shot his victim and three hours later returned to the scene of the killing for the- stated purpose of making sure he was dead. Saying that he was going to remove “ Identification and stuff’ ” from the body, Myers took the victim’s wallet, keys, and a black notebook. 230 Kan. at 698. Myers put the money from the wallet into his own pocket, tore up the wallet and notebook, and threw them away. In reaching its holding, the court rejected Myers’ contention that the crime of robbery requires the threat or force to be concurrent with the taking of the property. The court also rejected the contention that the force must be used with intent to steal. In this regard, the court stated:
“[WJhere a defendant shoots his victim and later decides to take and remove the victim’s personal belongings, where the act of force and the taking of the property are so comiected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take the property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery under K.S.A. 21-3426. Since the killing was accomplished with a dangerous weapon, a violation under K.S. A. 21-3427 was established by the evidence.” 230 Kan. at 703-04.
In the present case, the State proposed giving the non-pattern instruction in addition to the pattern instruction for the elements of aggravated robbery. The district judge agreed to include the proposed instruction because he believed that it was “necessary for the jury’s understanding.” It is not mandatory for courts of this state to use PIK instructions, but this court strongly recommends it:
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury in stractions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” Johnson, 255 Kan. 252, Syl. ¶ 3.
The non-pattern instruction in the present case was referred to by the parties and the district court as being derived from Myers. Defense counsel objected that the element of intent had heen eliminated in the State’s rephrasing of the Myers rule. A comparison of the court’s statement in Myers with the jury instruction here shows that the words “decides to” were left out of the instruction. Thus, Adam contends, the jury could find him guilty of aggravated robbery without finding that he intended to take the cap. We agree.
Defendant’s defense theory was that he never formed any intent to take the victim’s cap and that he picked it up reflexively. It was not the State’s contention nor is there any evidence which tends to show that Adam killed Sanders in order to take his cap or with the thought that he would be able to take it if Sanders were unable to resist. Adam’s testimony was that he was in shock when he realized he had stabbed Sanders in or near the heart and saw him lying on the ground bleeding. Adam testified that he moved Sanders’ head with his foot to see if he would respond, and then on his way back to his car Adam picked up Sanders’ cap. Before turning himself in to law enforcement authorities, Adam set fire to the cap at the suggestion of one of the other young men.
The State’s position is that the jury could not have found Adam guilty of aggravated robbery without finding that he intended to take the cap because the pattern instruction stated that it must be proved that Adam “intentionally took property from the person or presence of Scott O. Sanders.” The State reiterates that the non-pattern instruction is not to be read in isolation. What the State does not furnish, however, is a single reference to evidence which might tend to show that Adam’s picking up the cap was anything other than an automatic response to seeing it lying on the ground. Thus, the evidence which has been brought to the court’s attention does not support a finding that Adam intentionally took the cap.
In the circumstances of this case, where the defendant admitted stabbing Sanders and admitted taking the cap but asserted that he took it reflexively while in shock, intent was the only question which the jury had to decide with regard to the charge of aggravated robbery. The district court added the non-pattern instruction in the belief that application of the PIK elements instruction to the facts of this case required further explanation. The non-pattern instruction advised the jury that the force did not need to be concurrent with the taking, but it contained no mention of intent. Omission of the critical element of intent in these circumstances is more than a mere lack of guidance on the issue. The omission of intent from the explanatory supplement could have misled reasonable jurors to believe that Adam’s picking up the cap after stabbing Sanders in and of itself constituted the offense of aggravated robbery. The specific defect and the possibility of misleading the jury were raised by defense counsel during the instruction conference when the district court judge could have remedied the problem. In summary, the non-pattern instruction did not properly and fairly state the law as applied to the facts in this case, and its potential for misleading reasonable jurors was not substantially diminished by its association with the pattern instruction on aggravated robbery. We agree that the instruction should not be read in isolation; however, the confusion results when the two instructions are read together. We find merit in Adam’s contention that the jury could have found him guilty of aggravated robbery without finding that he had the intent to take the cap from Sanders’ presence. The district court committed reversible error in giving the additional instruction on aggravated robbery.
We next consider if the instruction on the accused’s initially provoking the use of force by the deceased was supported by the evidence. Adam and Sanders were driving separate vehicles as they left Council Grove. There was evidence that they tried to run each other off the road. The young man who was riding with Sanders testified that Sanders was angry when he stopped his car and got out. He testified that Sanders was angry because “they swerved close to his car, and he was real protective of his car; he didn’t want anything to happen to it.”
Based on this evidence, the State requested an instruction on the accused’s initially provoking the use of force by the deceased. Defense counsel objected on the ground that there was no evidence that Adam provoked any use of force against himself. Defense counsel argued that the evidence, at most, established erratic driving, which he likened to words and gestures, which do not amount to provocation. The State responded that Adam’s driving was conduct, not mere words or gestures. The district judge stated:
“I believe this is a very close question with regard to the issue of provoked use of force. However, having determined that I should instruct on self-defense, I feel this instruction should be given in the light of this and the defendant’s theory on involuntary manslaughter due to unlawful excessive force.
“The state’s theory of provocation may be somewhat unique, but in light of the evidence presented here and the theories being presented, I think the instruction is appropriate.”
Accordingly, the district court gave the following instruction, which is based on PIK Crim. 3d 54.22:
“A person who initially provokes the use of force against himself is not justified in the use of force to defend himself unless:
He has reasonable ground to believe that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the other person.”
There is no contention that the provocation instruction incorrectly states the law. The only contention is that it is not supported by the evidence.
Under K.S.A. 21-3214, the defense of self-defense, which is described in K.S.A. 21-3211, is not available for a defendant who initially provoked the use of force against himself. K.S.A. 21-3211 provides: “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 . . . against such aggressor’s imminent use of unlawful force.” K.S.A. 21-3214 provides in pertinent part:
“The justification described in sections 21-3211 ... is not available to a person who:
“(3) Otherwise initially provokes the use of force against himself or another, unless:
(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.”
In the circumstances of this case, if the jury had not been instructed on initial provocation by the accused, Adam’s self-defense theory could have been established by a showing that he reasonably believed that force was necessary to defend against Sanders’ use of force. With the jury instructed as it was, however, it may have concluded that Adam initially provoked the use of force against himself. If so, establishment of his self-defense theory required a showing not only that he reasonably believed that he was in imminent danger of death or great bodily harm but also that he had exhausted all reasonable means to escape.
The State cites State v. Beard, 220 Kan. 580, 552 P.2d 900 (1976). In Beard, this court approved the trial court’s giving an instruction on the accused’s initially provoking the use of force. We stated: “Whether defendant was an aggressor remained a question for the jury. There was ample evidence in this case which would have justified the jury in finding that defendant was an aggressor.” 220 Kan. at 582.
In State v. Hartfield, 245 Kan. 431, 781 P.2d 1050 (1989), Hart-field complained of the trial court’s giving instructions on the accused’s initially provoking the use of force. The court merely states that the instructions “do not provide grounds for reversal” and refers to Beard. 245 Kan. at 445.
Adam contends that his rights were prejudiced because the instruction on initial provocation misled the jurors into believing that his conduct amounted to provocation and, as a consequence, his theory of self-defense was “substantially undercut.” Adam overstates his case in assuming that the jurors determined that his conduct amounted to provocation, but he correctly points out that they could have made that determination. Because the legal effect of the accused’s initially provoking the use of force is to raise the threshold of proof for self-defense, a finding by the jury that the defendant initially provoked the use of force diminishes the.likelihood that it will find that defendant’s conduct was justified as self-defense. In State v. Hunt, 257 Kan. 388, 894 P.2d 178 (1995), the district court gave initial aggressor instructions consistent with PIK Crim. 3d 54.21 and PIK Crim. 3d 54.22. The defendant objected to giving the instructions. In finding there was no error, we said:
“Instructions 10 and 11 are correct statements of the law. The jury was not instructed that the defendant was an initial aggressor or that the defendant had provoked Martin into reaching for what the defendant thought, was a gun. As in Beard, the question of whether the defendant was an aggressor was one for the jury. If the jury did not find that the defendant was an aggressor, it could disregard the limit on the defendant’s right to use self-defense. Instructions 10 and 11 were not misleading or so confusing that the district court erred in giving them.'We do not find error on this issue.” 257 Kan. at 394.
Beard and Hunt are controlling in the present case. Although the evidence was not ample, it was sufficient to justify a finding by the jury that Adam was an aggressor. We note, in addition, two instruction matters which need to be addressed in the event this matter is retried. First, the district court failed to give PIK Crim. 3d 52.08, which the Notes on Use advise “should be given in connection with the instruction defining” self-defense. That instruction states:
“The defendant claims as a defense that (here describe the defense claimed). Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you must find the defendant not guilty.”
Without this instruction, the jury had little or no guidance in understanding how a finding of self-defense should affect its consideration of the evidence. Where, as here, the jury was given two possible standards against which to measure the evidence of self-defense (PIK Crim. 3d 54.17 and 54.22, self-defense with and without the accused’s initially provoking the use of force), the need was particularly acute for instruction on how to consider the evidence.
Second, there is a typographical error in the self-defense instruction, which would not have been apparent to the juiy as an error, because the sentence parses as is. As given, the instruction states in pertinent part: “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 against such aggressor’s imminent use of unlawful force.” (Bracketed material added.) The effect of the omitted “and” probably would not have acted to the defendant’s detriment, except insofar as it muddied the already murky waters.
We next consider if the instructions on voluntary and involuntary manslaughter were correct. Adam contends that the trial court incorrectly instructed the jury on voluntary and involuntary manslaughter. The instructions given on these two offenses were identical to the instructions requested by defense counsel. This court has stated its rule as follows: 'When a defendant requests that an instruction be given at trial and such instruction is given, he or she cannot on appeal claim it was error to give the instruction.” State v. Sutton, 256 Kan. 913, Syl. ¶ 5, 889 P.2d 755 (1995). Moreover, because Adam was convicted of second-degree murder, any error in the manslaughter instructions would be harmless.
Next, Adam argues that he is entitled to a new trial due to the State’s suppression of exculpatory evidence. He complains that during the discovery period, the prosecutor did not furnish to his counsel the narrative report of Deputy Ron Leeson of the Morris County Sheriff’s Department. The report states in full:
“On 012493, at approximately 7:00 PM, I took four photographs of Scotty Adam' to check for possible scratches, bruises and abrasions on his head, shoulders and neck. I took one front facial and neck, 1 right side head neck & shoulders, 1 back of head, neck and shoulders and 1 left side head, neck and shoulders.
“At this time I did not observe any of the above. I also asked Scotty Adam if he had any scratches, bruises or abrasions anywhere else on him. He replied no but he did have a bump on his forehead. Scotty showed it to me. Part of it was • on his forehead and the rest of it was above the hairline on his head.
“The photographs were sent in to be developed. When they came back the photographs were all printed on one exposure frame, malfunction of the 35 mm camera. As a result I have no photographs of Scotty Adam’s head, neck and shoulders.
“This is all the information I have at this time.”
The report was the subject of a post-trial motion by Adam. He argued then, as he does on appeal, that the report is exculpatory and that it should have been furnished to defense counsel in any event and in particular in response to defense counsel’s discovery request for statements made to law enforcement officers and all material or information which might tend to negate Adam’s guilt. The State responded that it followed an open file policy so that the report was at all times available to defense counsel and that the report was not relevant because there is no reasonable probability that its disclosure to the defense would have affected the outcome of the trial. The district court noted that bad faith was not alleged, questioned whether defense counsel had exercised due diligence, found that the report was not material, and concluded that the report would not have affected the verdict.
In its analysis of instances of prosecutors’ failing to furnish evidence to defense counsel, this court has described three classifications ranging from deliberate bad faith suppression in order to obstruct the defense to what has been dubbed the “oversight” classification. State v. Nguyen, 251 Kan. 69, 81-82, 833 P.2d 937 (1992). Adam concedes that an “oversight” matter is at issue here. The standard to be applied by the court is as follows:
“If the suppression of evidence is an oversight, as here, a defendant is granted a new trial only if the record establishes ‘(1) that evidence is withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial. [Citation omitted.]’ Pearson, 234 Kan. at 916.” 251 Kan. at 82.
Adam contends that the evidence was clearly exculpatoiy and material because it supported his self-defense theory by corroborating his testimony about Sanders’ hitting him and contradicted the testimony of the State’s rebuttal witness, Dr. Siegle. Adam testified that Sanders pulled him out of his car and “was hitting, hitting and hitting me.” When Adam hit Sanders in the back with the butt of his knife, Sanders hit Adam once more and caused him to slump down. It was then, according to Adam, that he “just started swinging” his knife and stabbed Sanders. In rebuttal, the State called the doctor who examined Adam on January 25, 1993. Adam told her he had been hit in the left side and on the head. She found a small contusion on his left side, but her examination revealed no abnormalities on his head. Dr. Siegle testified that bumps, bruises, or abrasions suffered by Adam in a fight on the morning of January 23 probably would have been seen by her during the examination on January 25. Deputy Leeson’s report established that on January 24, Adam had a bump on his forehead which extended into his hairline. Thus, it ténds to disprove the inference, which may be drawn from Dr. Siegle’s testimony, that Adam had not been pummeled by Sanders’ blows. Adam’s argument is that the omitted report creates a'reasonable doubt which otherwise did not exist by lending credence to his self-defense theory. He seems to believe that there is particular significance in the omitted report’s contradicting the State’s own rebuttal witness.
The State counters that nondisclosure of the report was “due in some part to the failure of the defendant’s counsel to pursue the available open file discovery policy.” In addition, according to the State, the report was neither exculpatory nor material in that there is no reasonable likelihood that it would produce a different result upon retrial. We do not agree.
There can be no question that the nondisclosure of Deputy Lee-son’s report was of major significance. The report corroborated Adam’s claim of self-defense and contradicted the testimony of the State’s rebuttal witness, Dr. Siegle. Further, the significance of the nondisclosure was compounded by the following remarks of the State’s attorney in closing argument:
“He tells us that Scott Sanders, the victim, kept hitting him, punching him repeatedly, pummeling him, if you will, within a time frame, when you put it together, that the other witnesses describe as being mere seconds. Scott Sanders is over six foot tall, two hundred and twenty some pounds. The defendant, much smaller, he’s being pummeled, he’s being hit repeatedly about the head, the face.
“Yet, Dr. Lora Siegle, who was called on rebuttal, who, in fact, examined Mr. Adam, doesn’t seem to indicate that perhaps that happened. If you believe the testimony of Dr. Siegle, there seems to be no evidence to support the defendant’s claims. She testified that she observed none of the injuries that one would nor mally associate with such a beating inflicted on a person of the defendant’s size by a person of the victim’s size.
“Is the defendant’s testimony credible? You have to use your common sense. You must do this in evaluating both the state’s evidence, the claims of the state, and the claims of the defendant.”
Deputy Leeson s report is exculpatory and material. For that reason, the State had an affirmative duty to disclose the evidence. See Nguyen, 251 Kan. 69, Syl. ¶ 7. The State has cited no authority, nor are we aware of any, which indicates that its positive duty is discharged by an “open file policy.” The State’s failure to carry out its duty and its comments to the jury in closing argument were error. The aggregate effect was to seriously prejudice Adam in establishing his defense. Thus, we conclude the defendant’s conviction of second-degree murder must be reversed.
Adam also argues that gruesome photographs should not have been admitted into evidence. State’s Exhibits 7F and 7G were admitted into evidence over the objection of defense counsel. They are photographs taken during the autopsy of Sanders’ body and introduced during the testimony of the pathologist. She made it clear that death was due to internal bleeding resulting from a stab wound to the heart. There was no dispute about the cause of death. With regard to photographs of this kind, the court has stated: ‘When dealing with pictures of an autopsy, great care must be taken so that the pictures do not simply shock and revolt, but rather help the jury understand the medical testimony.” Hartfield, 245 Kan. 431, Syl. ¶ 9.
Exhibit 7F shows the stab wound in the sac around the heart. Exhibit 7G, according to the testimony, “shows the cutting wound or the stab wound penetrating the aorta, just above the aortic valve.” None of those features is apparent in Exhibit 7G. They were not pointed out during the pathologist’s testimony. The State contends that
“[b]ofh photographs were offered to demonstrate not only the violent nature of the wounds inflicted upon the victim, but also the manner of his death, and both exhibits illustrate the depth of the wounds, thus showing to the jury the significant force with which the wounds were inflicted and the degree of trauma suffered by the victim.”
A photograph of a probe inserted into the chest wound might have shown how deep it was and by inference how much force was used to create it, but the autopsy photographs do not illustrate these points.
Both photographs are extremely gruesome and repulsive. Neither of these photographs shows the two puncture wounds to the abdomen. The photographs marked Exhibits 7B, 7D, and 7E show the two wounds to the abdomen, and those exhibits are not at issue in this appeal. The probative value of Exhibit 7F is minimal. There seems to be no probative value to Exhibit 7G. In the latter photograph, the heart has been pulled out of the chest cavity and cut open to show a cross-section. These photographs are strikingly similar to ones disapproved by the court in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975). There, Justice Prager wrote for the court:
“We believe, however, that exhibit 39 was so gruesome and repulsive that the trial court abused its discretion in admitting that exhibit into evidence. In our opinion the offer of this exhibit could be but for a single purpose — to inflame the minds of the members of the jury. This court has gone a long way, perhaps too far, in countenancing the introduction of grisly, gruesome photographs. Here exhibit 39 shows the body of the deceased out open from chin to groin and laid out like a disemboweled beef in a packing plant. A flap of chest skin partially covers the deceased’s face and the chest and abdominal organs of the deceased are presented in full view. In this case the cause of death of the victim was really not in dispute. The state’s medical expert made it clear that death was due to internal bleeding resulting from stab wounds.” (Emphasis added.) 216 Kan. at 377-78.
Here, as in Boyd, the trial court abused its discretion in admitting the photographs into evidence, and, absent a change in circumstances on retrial, Exhibits 7F and 7G should not be admitted into evidence.
The judgment of the district court is reversed, and the case is remanded for a new trial. | [
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In a letter dated June 15, 1995, to the Clerk of the Appellate Courts, respondent Jeffrey C. Sturm, of Wichita, 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, Steven L. Islas.
On June 2, 1995, this court temporarily suspended Jeffrey C. Sturm from the practice of law pending final disposition of the disciplinary proceeding, pursuant to Supreme Court Rule 203(c)(4) (1994 Kan. Ct. R. Annot. 189). The Disciplinary Administrator’s office had requested that respondent be temporarily suspended as a result of allegations of misconduct by respondent arising out of his practice of law and injury to clients.
Respondent has been informally admonished on two separate occasions. On September 27, 1989, respondent was informally admonished in case No. B4620 for failing to communicate properly with a divorce client. On June 16,1993, respondent was informally admonished in case No. B5499 for his failure to properly communicate with his clients. At the time respondent surrendered his license to practice law, case No. 73,306 was pending before this court in which a report of a hearing panel of the Kansas Board for Discipline of Attorneys had been filed. The report recommended that respondent receive the sanction of published censure as a result of violations of the Model Rules of Professional Conduct in connection with his representation of a client in a personal injury matter.
At the time respondent surrendered his license, there were nine separate complaints scheduled for hearing on June 26-28, 1995, before a panel of the Kansas Board for Discipline of Attorneys. Three additional complaints had been received and docketed and were being investigated by the Disciplinary Administrator’s office. The complaints docketed against respondent contained allegations of misappropriation of client funds, improper use of respondent’s trust account, dilatory handling of client affairs, and failing to properly communicate with clients. At the time respondent surrendered his license, he was charged in Sedgwick, Morris, and Harvey Counties with giving a worthless check, in violation of K.S.A. 1993 Supp. 21-3707.
Dated this 21st day of June, 1995.
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 Jeffrey C. Sturm be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice, law are hereby revoked.
It Is Further' Ordered that the Clerk of the Appellate Courts strike the name of Jeffrey C. Sturm from the roll of attorneys licensed to practice law in the State of Kansas.
-.. 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). | [
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The opinion of the court was delivered by
Holmes, C.J.:
This is an original action in mandamus and quo warranto brought by the Attorney General against the Secretary of the Kansas Department of Revenue and the Director of Property Valuation as respondents. At issue is the constitutionality of 1994 S.B. 542 § 14, now codified at K.S.A. 1994 Supp. 79-1427c. For the sake of uniformity and simplicity we will refer to it as § 14 throughout this opinion. The Attorney General asserts that § 14 violates the uniform and equal taxation provision of Article 11, § 1 of the Kansas Constitution. The respondents and amici disagree.
The relevant facts, which are uncontested, are set forth in the Attorney General’s petition as follows:
“4. In its 1994 session the Kansas Legislature by majority vote approved the provisions of 1994 Senate Bill No. 542. The Honorable Joan Finney, Governor of the State of Kansas subsequently signed 1994 SB 542 into law, effective upon publication in the statute book.
“5. Section 14 of 1994 SB 542 provides that:
‘New Sec. 14. If, from and after January 1, 1994, and on or before March 14, 1995, the county or district appraiser discovers any taxable tangible personal property which would be subject to a penalty pursuant to the provisions of K.S.A. 79-1427a, and amendments thereto, such property shall be listed and appraised and taxes collected thereon as provided in K.S.A. 79-1427a, and amendments thereto; however, such property shall not be liable for any taxes that would have been levied against such property for any year prior to the 1992 tax year and no penalty shall be added. Notwithstanding the foregoing, the penalties prescribed by K.S.A. 79-1427a, and amendments thereto, shall be added whenever any person, association, company or corporation that has fraudulently failed to list or has fraudulently underreported tangible property required to be listed for taxation as provided in K.S.A. 79-306, and amendments thereto. Such fraud shall be proven by clear and convincing evidence.’
“6. On June 17, 1994, the Attorney General issued an opinion concerning § 14 of SB 542 in which he opined:
‘By releasing the property tax obligation for certain discovered escaped personal property upon which taxes have become delinquent, but not granting a similar benefit for those who timely paid their personal property taxes, section 14 of 1994 senate bill no. 542 violates the uniform and equal provision of article 11, section 1 of the Kansas Constitution.’
“7. On June 28, 1994, the Attorney General met with David Cunningham, Director of Property Valuation. At that meeting Mr. Cunningham indicated that it was his position and the position of die Secretary of Revenue diat § 14 of SB 542 would be implemented, as written, until such .time as a court of law found die same to be unconstitutional.”
This action was filed July 8, 1994, and on August 30, 1994, by agreement of the parties, this court granted the Attorney General’s motion for a peremptory order in mandamus, thereby enjoining the Kansas Department of Revenue from implementing § 14.
The sole issue before the court is whether § 14 of 1994 S.B. 542 is unconstitutional as violative of the uniform and equal taxation provision of Article 11, § 1 of the Kansas Constitution.
At the outset we deem it advisable to consider whether this action seeking a writ of mandamus and quo warranto is the appropriate vehicle for the relief sought.
In State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 716, 792 P.2d 971 (1990), we reaffirmed our often-stated position on this question:
“This court has consistendy recognized that mandamus is a proper remedy where the essential purpose of die proceeding is to obtain an authoritative interpretation of the law for die guidance of public officials in their administration of the public business, notwitiistanding die fact that another adequate remedy at law exists. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984); Board of Sedgwick County Commr’s v. Noone, 235 Kan. 777, 779, 682 P.2d 1303 (1984); Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982).”
The Attorney General asserts that this case is one of statewide importance. In doing so, he advances the following reasons:
“People in all of the 105 counties in the state are impacted by §14. Local government entities which serve the people are dependent in part on moneys generated by personal property taxes. An authoritative state wide judicial ruling is required for the swift and uniform resolution of this controversy.
“An authoritative ruling is needed not only in order to guide the petitioner and respondents, but is needed in order to provide guidance for the various county and district appraisers located throughout the state.
“This matter is one of immediate concern due to the fact that various lawsuits have been threatened regarding this matter. There is a real danger of inconsistent rulings from the district courts which could result in unequal taxation in the state. Millions of dollars, held by thousands of people, are at stake in this litigation.
We agree that the use of mandamus is an appropriate and proper means for presenting the issue raised and that the court should accept jurisdiction of this case.
Before addressing the issue before us, we reiterate some of the general rules of constitutional construction. In State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978), we stated:
“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 tire 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 on 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.]”
Article 11, § 1 of the Kansas Constitution, in pertinent part, states:
“(a) The provisions of this subsection shall govern the assessment and taxation of property on and after January 1, 1993, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform, and equal basis of valuation and rate of taxation of all property subject to taxation.” (Emphasis added.)
Although this section of the constitution has been amended several times, most recently in 1992, the provision relating to the equal and uniform basis of taxation has been in effect since the original adoption of the constitution in 1859.
Section 14 of 1994 S.B. 542 provides:
“New Sec. 14. If from, and after January 1, 1994, and on or before March 14,1995, the county or district appraiser discovers any taxable tangible personal property which would be subject to a penalty pursuant to the provisions of K. S.A. 79-1427a, and amendments thereto, such property shall be listed and appraised and taxes collected thereon as provided in K.S.A. 79-1427a, and amendments thereto; however, such property shall not be liable for any taxes that would have been levied against such property for any year prior to the 1992 tax tjear and no penalty shall be added. Notwithstanding the foregoing, tire penalties prescribed by K.S.A. 79-1427a, and amendments thereto, shall be added whenever any person, association, company or corporation that has fraudulently failed to list or has fraudulently underreported tangible property required to be listed for taxation as provided in K.S.A. 79-306, and amendments thereto. Such fraud shall be proven by clear and convincing evidence.” (Emphasis added.)
K.S.A. 1994 Supp. 79-1427a, referred to in § 14, provides that any taxable personal property omitted from the tax rolls shall, upon discovery, be placed on the tax rolls as property “deemed to have escaped taxation” and shall be subject to taxation and to a 100 per cent penalty. Property listed, but underreported, is also “deemed to have escaped taxation” and is subject to similar taxation and penalties. In addition, the property deemed to have escaped taxation shall be subject to tax and the 100 per cent penalty for the four previous years.
Section 14 was apparently adopted by the legislature in 1994 at the request of a number of Leavenworth County taxpayers who had omitted or underreported personal property based upon their misunderstanding of the statutes and what they allege to be past practices and directions of the Director of Property Valuation and the county appraiser. They also argue that in 1989 through 1992, the county appraiser did not advise taxpayers about the classification of personal property which resulted from changes in Art. 11, § 1. As a result personal property not previously subject to taxation became so without adequate notice to the taxpayers. In 1993 the Leavenworth County appraiser began auditing personal property rendition sheets for 1993 and prior years and sought to collect the taxes and penalties owed on the escaped property.
Amicus curiae A Group of Taxpayers in Leavenworth County (hereinafter Leavenworth Taxpayers) assert § 14 “was a piece of hastily drafted legislation in response to a course of action taken by the Leavenworth County Commissioners and the Leavenworth County Appraiser.” As so often happens in many well-meaning endeavors, it is not unusual for such action to result in the old maxim of “haste makes waste.” The respondents, as well as the Leavenworth Taxpayers, assert in their briefs that § 14 merely creates a “window of opportunity” for taxpayers to voluntarily come forward and reveal escaped property and thereby avoid past taxes and penalties which would otherwise be due. One obvious flaw in such an argument is that § 14 is not limited to voluntary listing of escaped property and, in fact, according to amicus, was brought about by the aggressive tax collection procedures adopted by the county appraiser in 1993. Amicus states: “In late 1993 and 1994, an out-of-state tax ferret was hired on a commission basis to come in and conduct appraisals.” If correct, we assume the action of the county commissioners was based on our decision in Dillon Stores v. Lovelady, 253 Kan. 274, 855 P.2d 487 (1993).
The Attorney General argues § 14 violates the Kansas Constitution, which requires the legislature to provide for a uniform and equal basis of valuation and rate of taxation. Specifically, the Attorney General maintains that § 14 is a retro-active property tax exemption, which creates an improper or preferential classi fication of property in violation of Kan. Const. Art. 11, § 1. It is argued that the newly created tax exemption is arbitrary and unreasonable in that it treats similarly situated taxpayers differently. In substance, the exemption works as a classification based upon a characteristic or status of the taxpayer and not the property or use thereof. By providing unspecified taxpayers an amnesty window as a means of avoiding unpaid property taxes, all tangible personal property owners are divided into two classes: those who pay taxes on time and those who do not.
The respondents dismiss the Attorney General’s arguments as misplaced and argue § 14 does not create a tax exemption. Instead, they, along with amici curiae, maintain that § 14 is a modification of the applicable statute of limitations. Specifically, they assert § 14 is a valid modification of the limitation period in which the State may collect escaped tangible personal property taxes, as provided for in K.S.A. 1994 Supp. 79-1427a(c). Alternatively, respondents argue that if § 14 is construed as a tax exemption by this court, it is not in violation of the uniform and equal taxation provision of Art. 11, § 1 in that it is rationally based and therefore constitutionally permissible.
Leavenworth Taxpayers contend that the statute creates a “window of opportunity” for taxpayers to voluntarily come forward and submit appropriate personal property rendition sheets listing all of their taxable property. They assert the statute creates a temporary “Statute of Limitations for a vexy short period of time” rather than an exemption as argued by the Attorney General.
Amicus curiae, Commercial Property Association of Kansas, also contends that § 14 is merely a statute of limitations and not a tax exemption, but in addition bases a significant portion of its brief on the power of the legislature to authorize the abatement, cancellation, and compromise of taxes. In doing so it relies upon four older cases involving real property held by the county under tax foreclosure proceedings. State, ex rel., v. Wyandotte County, 154 Kan. 222, 117 P.2d 591 (1941); Trust Co. v. Davis, 76 Kan. 639, 92 Pac. 707 (1907); Baker v. Atchison County, 67 Kan. 527, 73 Pac. 70 (1903); Ide, Receiver v. Finneran, 29 Kan. 569 (1883). All of these cases are readily distinguishable from the present case and not persuasive here. However, one comment by Justice Mason in Trust Co. is enlightening:
“Whether a statute authorizing the acceptance of a part of the tax for the whole is passed before or after the levy, it is obnoxious to the constitution if regarded as a favoritism extended to the property owner, but not if regarded as a permission granted to the local officers to accept less than full amount due only because experiment has demonstrated that no more can be obtained.” 76 Kan. at 643.
We agree that the legislature may authorize the abatement, cancellation, and compromise of taxes in appropriate circumstances and when done within the limits of the constitution.
The Attorney General, in arguing that § 14 creates an unconstitutional retroactive property tax exemption, relies upon State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 701 P.2d 1314 (1985), for the standard to be applied here. In Tomasic we stated:
“In ruling on the constitutionality of statutory exemptions, this court has generally considered four key elements: (1) whether the exemption furthers the public welfare, State, ex rel., v. Board of Regents, 167 Kan. 587, 207 P.2d 373 (1949); (2) whether the exemption provides a substantial, peculiar benefit, Alpha Tau Omega v. Douglas County Comm’rs., 136 Kan. 675, 18 P.2d 573 (1933); (3) whether the exemption provides for large accumulations of tax-exempt property; and (4) whether the exemption is an improper or preferential classification of property, State, ex rel., v. Board of Regents, 167 Kan. 587.” 237 Kan. at 579.
In addition to the four-prong Tomasic test, this court has articulated various guidelines to be considered and applied in determining whether tax exemptions are constitutionally permissible. These guidelines or rules were enunciated in State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 411-12, 636 P.2d 760 (1981), as follows:
“Under fire general rule all property is subject to taxation unless specifically exempted. [Citation omitted.] Property which is subject to taxation is taxed at a uniform and equal rate. [Citations omitted.] However, tax exemptions are constitutionally permissible. One type of tax exemption is the constitutional exemption which demands the property be ‘used exclusively’ for specified purposes. [Citations omitted.] The constitution does not provide, however, that other exemptions may not be made. [Citations omitted.] The legislature may provide other statutory exemptions if such exemptions have a public purpose and promote the general welfare. [Citations omitted.] Such statutory exemptions may be broader than the constitutional ones. [Citations omitted.] “Within die scope of legislative power, the legislature itself is the judge of what exemptions are in the public interest and will conduce to the public welfare.’ [Citations omitted.]”
In City of Liberal v. Seward County, 247 Kan. 609, 612-13, 802 P.2d 568 (1990), additional guidelines were summarized and stated:
““ “Whether particular property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. [Citation omitted.] Taxation is the rule, and exemption from taxation the exception under the Kansas Constitution and statutes. [Citations omitted.] Constitutional and statutory provisions exempting property from taxation are to be stricdy construed against die one claiming exemption, and all doubts are to be resolved against exemption. [Citations omitted.] Where the language of a statute, in particular, is relied upon as creating an exemption from taxation, it must be stricdy construed against the party claiming die exemption, and he must bring himself clearly within the exemption. [Citations omitted.] Strict construction, however, does not warrant unreasonable construction. [Citation omitted.]’ ”
Based upon the foregoing guidelines the Attorney General argues that the traditional rational basis test usually applied to equal protection arguments does not apply in determining the constitutionality of tax exemption statutes. It is urged that we articulate a new and higher standard for such cases. We do not view the Tomasic, Kansas City, Kansas Port Authority, and City of Liberal guidelines as creating some new heightened degree of judicial scrutiny, applicable to tax cases. Rather than create yet another level of judicial scrutiny, we view the foregoing guidelines as rules of law to be considered in determining, in any particular case, whether the legislature had a rational basis for its action.
The Attorney General in asserting that § 14 creates an unconstitutional tax exemption argues that it is not based upon a permissible classification of personal property but on an impermissible classification of property owners. The two classes of property owners constitute those who paid taxes and those who did not and creates an exemption for the latter group in which the qualification for the exemption is dependent solely upon the failure to report or the underreporting of personal property and the nonpayment of taxes thereon, and the subsequent discovery and re porting of the property during a 14 and one-half month amnesty period.
Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975), which addressed a similar issue, is instructive. In Topeka Cemetery, the court examined a statutory tax exemption which divided cemetery property into two groups. Under the provision, cemetery property which was owned by private individuals was declared exempt from ad valorem taxation. However, cemetery property owned by a cemetery corporation was not exempted and was required to pay assessed ad valorem taxes. The issue before the court was whether the statutory exemption violated the equal and uniform taxation provision of the Kansas Constitution.
In Topeka Cemetery, the court discussed at some length the constitutional and statutory bases for the exemption of certain classes of property from taxation. In doing so the court stated:
“It is obvious that statutory exemptions based upon public ownership of property may have a rational basis and that a public purpose may be served thereby.
“Throughout our judicial history a different test has been applied in situations where public property is not involved and where the statutory tax exemption pertains to property owned by private individuals or corporations. We have consistently held that where public property is not involved, a tax exemption must be based upon the use of the property and not on the basis of ownership alone. The reason for the rule is that a classification of private property for tax purposes based solely upon owners unlawfully discriminates against one citizen in favor of another and therefore is a denial of equal protection of the law. ... In 1887 it was held in M. & M. Rly. Co. v. Champlin, Treas., 37 Kan. 682, 16 Pac. 222, that a distinction made in the taxation of property in a township belonging to residents and nonresidents was unconstitutional and void and in violation of Article 11, Section 1, of the Kansas Constitution.
“The terms ‘equality’ and ‘uniformity’ were explained in Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, where the court stated as follows:
“ ‘. . . The essentials are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to the exclusion of others, constitute invidious discrimination, which destroy uniformity. . . .’ (p. 58.)
In Voran v. Wright, 129 Kan. 1, 281 Pac. 938, opinion on rehearing 129 Kan. 601, 284 Pac. 807, it is declared that the classification permitted by Section 1, of Article 11, of the Kansas Constitution applies to property and not to owners thereof. At page 606 of the opinion on rehearing it is stated:
“'. . . A classification as to owners is not now permissible. The only classification authorized or tolerated by this constitutional provision is that of property, and it makes no difference by whom it may be owned, whether by individual, merchant, manufacturer, banking institution or other corporation. . . 218 Kan. at 42-43.
In concluding that the exemption for privately owned cemetery property was unconstitutional, the court reasoned:
“When we turn to the undisputed facts and tire statute under consideration in this case and apply the principles of law discussed above, we are compelled to conclude that the statutory classification contained in K.S.A. 79-201 Second (Weeks 1969) is discriminatory and unconstitutional as a violation of Article 11, Section 1, of the Kansas Constitution. .All lots and tracts of land contained within the boundaries of a cemetery platted by a cemetery corporation are dedicated exclusively for burial purposes and cannot be used for any other purpose. [Citations omitted.] Since all lands in the cemetery are dedicated exclusively for burial purposes, we find no rational basis for treating differently land owned by individuals and that owned by the corporation, except ownership, which is not a permissible basis for classification." (Emphasis added.) 218 Kan. at 44-45.
The Attorney General argues that under the wording of § 14, it is clear that the statutory exemption is not based upon the property or the use thereof, but instead, it is based upon a characteristic or status of the taxpayer. In doing so, reliance is placed upon Attorney General opinion No. 94-79, wherein it was stated:
“While article 11, section 1 of the Kansas constitution has been amended since [Tomasic] was decided, there still exists a requirement for uniform and equal treatment of all property subject to taxation except as specifically otherwise provided in the constitution. The constitution does not specifically provide for the classification here in question (personal property discovered, between January 1, 1994 and March 15, 1995, to have escaped taxation for years before 1992). Nor do any of the constitutional exemptions apply to this classification of property. Thus, as in State ex rel. Tomasic, we turn to the test for statutory exemptions. It is the fourth prong of the test with which we are concerned. Section 14 of the bill exempts any tangible personal property that is discovered, within a certain period of time, to have escaped taxation for any year prior to 1992 if no taxes have yet been paid. The exemption is not based on the type of property (other than it is limited to tangible personal property), it is not based on the character of the taxpayer (other than that they did not list and/or pay their tangible personal property taxes within the statutory time line), and it is not based on the use to which the property is put. The only basis for the exemption is the fact that the tax was not paid as required by statute at the time die tax obligation accrued and became due ... by releasing from property taxation certain discovered escaped personal property upon which taxes have become delinquent, but not granting a similar benefit for those who timely paid their personal property taxes, section 14 of 1994 senate bill No. 542 violates the uniform and equal provisions of article 11, section 1 of the Kansas Constitution.”
In dismissing the Attorney General’s arguments, the Secretary maintains that § 14 works as a valid modification of the applicable statute of limitations. Subsection (c) of K.S.A. 1994 Supp. 79-1427a provides:
“The provisions of this section shall apply to any tangible personal property discovered during the calendar years 1982, 1983, 1984 and any year thereafter to have escaped appraisal and taxation during any such year or any year within four years next preceding any such year.”
The Secretary argues that § 14 modifies the current four-year Hmitation period to a two- or three-year period, depending upon the date of discovery. She maintains that because § 14 extinguishes the State’s right to collect tangible personal property taxes owing prior to 1992, § 14 is a statute of limitations and not a statutory tax exemption.
This court on numerous occasions has set forth various rules regarding statutes of limitation. We note the following: “A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). “It is settled in this jurisdiction that it is within the power of the legislature to amend a statute of limitations, either by shortening or extending the time in which an existing cause of action may be barred.” Pinkston v. Rice Motor Co., 180 Kan. 295, 307, 303 P.2d 197 (1956). “Statutes of limitation are usually considered to be remedial rather than substantive, in that the remedy only and not the right or obligation is barred.” Rochester American Ins. Co. v. Cassill Truck Lines, 195 Kan. 51, 55, 402 P.2d 782 (1965). “Statutes of limitation man ifest the state’s legitimate interest in preventing stale claims.” Church Mut. Ins. Co. v. Rison, 16 Kan. App. 2d 315, 318, 823 P.2d 209 (1991).
As pointed out by the Attorney General, § 14 does not readily fall into the general understanding or definition of a statute of limitations. The statute provides “such property shall not be liable for any taxes that would have been levied against such property for any year prior to the 1992 tax year and no penalty shall be added.” Section 14 does not just limit the remedy of the county but eliminates the “liability for any taxes.” It eliminates the actual obligation of the taxpayer and the right of the county. Ordinarily, a statute of limitations creates an' affirmative defense and, if not pled and asserted as a defense, the obligation may still be subject to judgment and collection. K.S.A. 60-208(c). To the contrary, § 14 provides a complete release of the escaped property from the tax that otherwise would be owed and collectible.
All parties refer, at one point or another, to § 14 as creating an amnesty from the taxes which would otherwise be collectible. However, such amnesty applies only to property owners who have failed, for whatever reason, to list property for taxation or who have underreported such property. The property owner who makes an honest and diligent effort to list and report taxable property but does not have die financial ability to pay the tax is excluded from the amnesty provisions of § 14.
It also appears that a literal reading of § 14 provides that even those whose properly escaped taxation due to the fraud of the taxpayer are relieved of the tax liability but must pay the penalty. The assessment of a penalty based upon the amount of tax for failure to properly return property for taxation when there is no tax liability is difficult to fathom and makes little sense. If § 14 was a true statute of limitations fraud would ordinarily toll the running of the statute, and both the tax and penalty would be subject to collection.
In attempting to interpret § 14 we have searched for any legislative history attending passage of the bill. We found none. In arguing against the Attorney General’s position that § 14 creates an unconstitutional tax exemption, respondents assert: “There is no evidence that the legislature intended to enact an exemption.” Likewise, there is absolutely no evidence the legislature intended to enact a “temporary” statute of limitations.
In an attempt to overcome the total lack of any legislative intent surrounding the preparation and passage of § 14, amicus Leavenworth Taxpayers attach to their brief an affidavit of a member of the 1994 House of Representatives. The use of such an affidavit to establish legislative intent is questionable at best. See Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 257, 577 P.2d 1202 (1978). Even if we consider the affidavit, it merely forms the basis for the arguments of amicus that § 14 creates a “window of opportunity” for taxpayers “to bring themselves into compliance” with the taxation statutes, free of any obligation to pay the taxes that would otherwise be owed.
Both sides in this case assert that § 14 is clear on its face, but the parties, ironically, divine completely different meanings in this clarity. The Attorney General argues that § 14 is an invalid property tax exemption, while the Secretary maintains that § 14 works as a valid modification of the applicable statute of limitations. Obviously the statute is not as clear as the parties would have us believe. If § 14 is a tax exemption, it works as a retroactive one based not upon the property or use thereof, but instead upon the characteristic of the taxpayer — namely the taxpayer’s failure to pay taxes on time. On the other hand, if § 14 is a modification of the limitations period, it is a narrow one in that it only applies to escaped property, subsequently discovered, and the resulting taxes assessed and owing prior to 1992. Additionally, the new legislation does not modify the language of K.S.A. 1994 Supp. 79-1427a(c), the applicable limitation statute, but instead works as a limited tax amnesty window for those who owe taxes prior to 1992. Any taxes assessed and owing after 1992 will continue to fall under the four-year limitation period. As such, instead of acting as either a tax exemption or a statute of limitations, § 14 acts merely as an immunity provision provided for certain delinquent taxpayers. Whether such a provision is constitutional under the facts of this case is the issue we must resolve.
As the precise issue before us is one of first impression in Kansas, we turn to other jurisdictions for guidance.
State ex rel. v. Hunt, 132 Ohio St. 568, 9 N.E.2d 676 (1937), which addressed a very similar if not identical issue, is instructive. In Hunt, the Ohio Supreme Court reviewed the constitutionality of a 1931 legislative act which in part granted authority to the state tax commission to issue certificates of immunity from collection of back taxes for the years 1926 to 1930. Taxpayer eligibility for the certificate was contingent upon whether the taxpayer had filed a complete return in 1932, listing all taxable intangible personal property for that year. The specific provision under attack was passed in conjunction with a recently adopted constitutional amendment granting the legislature authority to classify personal property for the purpose of taxation. Supporters of the amendment argued that the provision was lawful in that its purpose was to help facilitate implementation of the classification amendment and “bridge the gap between the operation of the old system and that of the new.” 132 Ohio St. at 577-78.
Under the facts of the case, a state taxpayer was challenging the authority of the state tax commission which had issued a certificate of immunity to the executors of a decedent’s estate which had properly filed a 1932 tax return. The challenge was based in principle upon the equal protection clause of the state’s constitution. Although not based specifically on the taxation provisions of the Ohio Constitution, the rationale of the court merits careful consideration. Section 2 of Article 1 of the Ohio Constitution read, in part: “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” The court stated:
“In order to determine whether a law is for the equal protection and benefit of the people it is necessary to ascertain whether it operates equally upon all persons charged with the same obligation. If the result of the operation of the law is such that some persons are obligated to pay taxes on a certain kind of •property for certain years while other persons owning the same kind of property during the same years are released from such obligations, it cannot in good conscience be said that such a measure conforms to the equal protection clause of the Constitution. We may also safely assume that Section 2 of Article I requires not only the substance of a tax law in respect to the same kind of property be uniform but also the manner in which the assessments of taxes and the collection thereof are made. . . .
“In the instant case we are concerned not with the rate of taxation but with the collection of the personal property tax after it has been placed upon the duplicate. During the five-year period, 1926 to 1930, inclusive, we must assume that taxpayers generally, pursuant to the law upon the statute books, returned their personal property for taxation and paid taxes thereon. Those taxpayers, who met their just obligations, were entitled to have all other persons charged with the same obligations pay their taxes as well. We are inclined to believe that such a procedure was intended by Section 2 of Article I of the Constitution.
“. . . The question we have here is not whether there was express legislative authority, but rather whether the enactment was in violation of the equal protection clause of the Constitution. . . .
"... In other words, the General Assembly in providing for a certificate of immunity from the collection of taxes said in so many words: If it is shown that the taxpayer makes a return of taxable property for 1932 as per Section 5398, General Code, and in good faith lists therein all the personal taxable property in the year 1932, thereupon such taxpayer may make application to the Tax Commission of Ohio for a certificate of immunity from the collection of omitted taxes for the years 1926 to 1930, inclusive. Is such an arrangement permitted by Section 2 of Article I of the Constitution? Obviously it is not an arrangement for the future but a contrivance to remit obligations of the past. It is clearly retroactive and in violation of Section 28 of Article II of the Constitution. In such a case can it be said that the taxpayer who met his obligations for all five years is on the same footing with the delinquent taxpayer who is not only being forgiven the penalty on the taxes but the entire amount thereof? For it must be remembered that we have here a situation dealing not with penalties alone but with the remission of the entire amount of the tax. ‘It is a generally recognized principle of the law of taxation that a statute authorizing the acceptance, directly or indirectly, of a part of the tax in satisfaction of the whole is unconstitutional as a denial of the equal protection of the laws and as a disregard of the equality and uniformity of treatment of all taxpayers, where it may be applied as a favoritism extended to the property owner, or some one acting for him, and not as a permission to the local officers to accept less than the full amount due only because actual test has demonstrated that no more can be obtained.’ Ranger Realty Co. v. Miller, 102 Fla. 378, 136 So. 546, 547.” 132 Ohio St. at 577-81.
In concluding that the equal protection clause had been violated, the court stated:
“While the classification amendment, effective January 1,1931, gave the General Assembly the authority to classify personal property for the purpose of taxation, it did not give the Legislature the power to classify taxpayers so as to distribute the burdens of taxation unequally. The statute under consideration does attempt to divide taxpayers into two classes. In one class are placed all those who met their just obligations with reference to personal property taxes from 1926 to 1930, inclusive, and in the other class are placed those who did not. To die latter class it gave a remission and cancellation of all obligations for those years merely by the act of complying with the personal property tax law in 1932. To sanction such legislation enacted in violation of Section 2 of Article 1 of the Constitution would be an injudicious construction of constitutional law. To say that such classification comes within the taxation or equal protection clauses of the Constitution is to misunderstand their true purpose.” 132 Ohio St. at 582.
Two later Ohio cases, Black v. Evatt Tax Commr., 138 Ohio St. 52, 32 N.E.2d 843 (1941), and Ireland v. Evatt Tax Commr., 138 Ohio St. 61, 32 N.E.2d 847 (1941), reached an opposite result from Hunt. However, the later cases were based upon a difference in the facts from those in Hunt. In both Black and Ireland there were vigorous dissents. In Black, Judge Williams stated in his dissent:
“The immunity provision of Section 5398, General Code, divides personal property taxpayers into two classes — those who have been honest and careful enough to make full returns and comply with the laws relating to taxation and those who have not made full returns and have thus dishonestly or heedlessly evaded taxation — and allows retention of taxes of those who have complied with legal requirements while in effect it releases those who have not. When we hold that such an enactment is not class legislation denying the equal protection of the law, we open the door to legislative discrimination against law-abiding taxpayers in favor of taxpayers who fail to make full and complete returns and thereby evade just taxation. Such discrimination is a violation of the guaranty contained in the equal protection clause of the organic law.” 132 Ohio St. at 60.
We find the decision and rationale of Hunt particularly convincing in view of the following language in State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981):
“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution finds its counterpart in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution which declare respectively that ‘All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,’ and that ‘all free governments ... are instituted for [the] equal protection and benefit’ of the people. These two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 (1974).
"Where constitutional challenges have been made to tax exemption schemes as violative of Article 11, Section 1, of the Kansas Constitution, this court has consistently held that the uniform and equal rate of assessment and taxation provision is, in principle and effect, substantially identical to the principle of equality embodied in the Equal Protection Clause of the United States Constitution. Associated Rly. Equipment Owners v. Wilson, 167 Kan. 608, 617, 208 P.2d 604 (1949); and Topeka Cemetery Ass'n v. Schnellbacher, 218 Kan. 39, 43, 542 P.2d 278 (1975).”
In the final analysis, keeping in mind the general rules of constitutional construction and the additional guidelines to be considered in tax matters, the determination of the constitutionality of § 14 is one of equal protection and fundamental fairness as required by the Kansas Constitution. Section 14 is an unreasonable grant of a tax amnesty or “window of opportunity” based solely on a characteristic or status of the taxpayer rather than upon appropriate classification of the property. Taxpayers are divided into two classes, those who honestly reported their property for taxation and those who, for whatever reason, did not report their property for taxation or underreported the property if returned. The latter group are granted freedom from taxation and statutory penalties, while the former group is not. Such discrimination, when judged against the taxation guidelines, is arbitrary and lacks the rational basis necessary to be constitutional.
We conclude 1994 S.B. 542 § 14, now codified at K.S.A. 1994 Supp. 79-1427c, violates Article 11, § 1 of the Kansas Constitution and is unconstitutional. Mandamus is granted in accordance with the peremptoiy writ issued earlier.
We further conclude, pursuant to K.S.A. 79-1484, that § 14 is separate and independent from the remainder of 1994 S.B. 542 and, accordingly, sever § 14 from the remainder of the bill. See Thompson v. KFB Ins. Co., 252 Kan. 1010, 1023-24, 850 P.2d 773 (1993).
Mandamus granted.
Abbott, J., not participating.
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Foth, C.J.:
This is an action by Thomas E. Butler against the Westgate State Bank for damages for breach of an alleged contract to make a $30,000 loan. Plaintiff proposed to use the loan proceeds to purchase a franchise for the production and sale of area telephone directories in the metropolitan Kansas City area. A jury awarded plaintiff $47,600, specifying in answer to a special question that $40,000 of that amount was for lost profits.
On the bank’s post-trial motion the court entered judgment for plaintiff, notwithstanding the verdict, in the amount of $7,600 for plaintiff’s out of pocket expenses. According to a breakdown provided by the jury this included a $5,000 loan made by defendant bank and repaid, $100 in interest, $1,500 lost wages for one month, and $1,000 in miscellaneous expenses. Eliminated was the $40,000 in lost profits, calculated by the jury as $20,000 for two books to be earned over two years. Plaintiff appeals from the remittitur of the $40,000; defendant cross-appeals from the judgment for $7,600.
I.
A. The primary argument on the cross-appeal is that there was insufficient evidence to show that the bank ever made a binding agreement to loan plaintiff the $30,000. The bank raised this issue by a motion for directed verdict at the close of plaintiff’s case, and again by its motion for judgment n.o.v. The trial court, at least as to the $7,600, denied both motions. On appellate review a district court’s ruling on such motions will not be set aside if the ruling is supported by substantial competent evidence. Apperson v. Security State Bank, 215 Kan. 724, 732-33, 528 P.2d 1211 (1974); Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 485 P.2d 1309 (1971). The appellate court is required to resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom the motions were made. Where the evidence is such that reasonable minds could reach different conclusions thereon, an appellate court must uphold the lower court’s denial of the motions. Simpson v. Davis, 219 Kan. 584, 589, 549 P.2d 950 (1976); Ellis v. Sketers, 1 Kan. App. 2d 323, Syl. ¶ 4, 564 P.2d 568, rev. denied 223 Kan. clxxi (1977).
Taking the evidence in the light most favorable to plaintiff, it showed the following:
In late 1971 the plaintiff went to work for a company called “Better Business Pages,” which was in the business of producing, selling and distributing so-called “area-wide telephone directories.” He was originally employed as a commissioned salesman in the Kansas City area to sell advertising space in the directory to local merchants. The directories themselves were distributed free of charge to area residents.
After completing the sales campaign for the directory in the Wyandotte County area, plaintiff was promoted to sales manager and underwent management training in the company’s home offices in Texas. He then returned to the Kansas City area and managed the company’s sales force for the directory to be produced for the area in Clay-Platte County, Missouri. Upon completion of the Clay-Platte sales campaign Butler and his sales force began selling their advertising in Johnson County. There were to be three “books” or directories in the Kansas City area, and with each sales campaign taking approximately four months, he anticipated keeping his sales crew gainfully employed the year round.
Approximately half-way through the Johnson County campaign the Better Business Pages owner became involved in Iiti gation with one of its franchise holders, a Mr. George Schuler of Plano, Texas. Schuler successfully concluded the litigation by acquiring virtually all the assets of Better Business Pages, including their various franchises. Schuler decided to discontinue the Kansas City operations and to sell the franchise for this area.
In the late summer of 1972 plaintiff and Schuler discussed the possibility of plaintiff’s purchasing the Kansas City area franchise. After further discussions Schuler agreed to sell the Kansas City franchise to plaintiff for $30,000.
Butler telephoned the defendant bank in Kansas City, Kansas, where he had previously borrowed money and conducted his banking business for several years. He talked with Mr. Keith Abram, with whom he had previously dealt, and told him “how much and what it was for.” Mr. Abram, a loan officer of the defendant bank, was familiar with the directory since the bank had purchased advertising in prior publications.
Abram advised the plaintiff of what information the bank would need to consider the loan, including facts and figures concerning the business, and also information from plaintiff’s attorney concerning his late father’s estate, from which he expected a sizeable inheritance. Plaintiff spoke to his attorney who forwarded the requested items, and Schuler obtained the information regarding the franchise operation. Later plaintiff relayed this information to Abram.
At the time of the second telephone conversation Abram indicated, after noting the information supplied by Schuler, that he would have to “present it to his people” before making a commitment, probably referring to the bank’s board of directors.
The following day, in a third conversation with Abram, Butler was told “that there was no problem on the loan,” that he would get $5,000 for the agreed down payment, and that “they had approved the loan for the entire amount but I would have to come up there to sign the papers” and work out other details. There was discussion regarding repayment — whether it should be a ninety day note or repaid over a longer period such as two years.
During the second telephone conversation with Abram, George Schuler was also on the phone, and himself conversed with the loan officer. He gave Abram a “brief history of our company and who I was and how I got to where I was, who my bank was, who my accountant was, who my attorney was.” He also provided the name and phone number of the attorney for the previous owner of Better Business Pages. Abram concluded by saying that he was familiar with the book, thought it would be a success and that he thought they could “work something out.” However, he needed to make sure “you are real people.”
A few days later, Schuler also had a second conversation with Abram. At that time Abram said he had had a conversation with Schuler’s banker and lawyer and told Schuler and the plaintiff (who was also on the line) that “we will make the loan.” After further discussion, it was agreed that plaintiff would be given immediate credit for $5,000 for the down payment and that the details on the balance would be worked out when plaintiff returned to Kansas City.
Following this conversation Schuler’s attorney prepared a contract for the sale of the Kansas City franchise to plaintiff for $30,000 with $5,000 payable immediately and the balance by October 15, 1972. The contract was executed by plaintiff and Schuler and was dated September 29, 1972.
In his last conversation with Abram plaintiff was told to return to Kansas City “to take care of the rest of the paperwork.” The $5,000 was mailed or wired to Schuler’s bank in Texas.
Upon his return to Kansas City, plaintiff first visited his attorney who was incorporating his business, and the next morning went to the bank to see Abram. After waiting for some time he was told to return the next day. The following day he was similarly advised. On the third day he was told he must see Bill Martin, the bank president.
Martin told him that he didn’t have any business going through Abram for a loan of that size and that the plaintiff should have dealt directly with him. Martin informed the plaintiff that the bank was “turning down the balance of the loan on the basis that they didn’t know when the estate would be settled.”
This evidence, which was apparently accepted by the jury, is sufficient to show a contract to lend the $30,000, partial performance to the extent of the $5,000 advanced, and a subsequent breach by the bank.
Where the evidence pertaining to the existence of a contract or its terms is conflicting or admits of more than one inference, a question is presented for the trier of facts. Hays v. Underwood, Administrator, 196 Kan. 265, Syl. ¶ 1, 411 P.2d 717 (1966). The controlling question of whether a binding contract was entered into depends upon the intention of the parties and is a question of fact. Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, Syl. ¶ 3, 512 P.2d 379 (1973).
Since there was conflicting evidence regarding the intentions of the parties to enter into a binding contract, a jury question was presented. The jury’s finding on this issue is conclusive on appeal if supported by substantial competent evidence. Without repeating what has been recited above, we note that the strongest evidence supporting the jury’s finding is that the bank sent the $5,000 down payment to Schuler’s bank in Texas. It is a basic rule of contract law that an offer may be accepted by performing a specified act. Crouch v. Marrs, 199 Kan. 387, 393, 430 P.2d 204 (1967); Gunnison v. Evans, 136 Kan. 791, 18 P.2d 191 (1933). The jury could readily infer an intent on both parties to enter into a binding contract.
The bank argues, however, that the terms of the contract were too indefinite to be enforceable. In order for an agreement to be binding, it must be sufficiently definite as to its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. The court must be able to fix definitely the legal liability of the parties. Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457 P.2d 691 (1969); Hays v. Underwood, Administrator, 196 Kan. at 267-68; Nichols v. Coppock, 124 Kan. 652, 261 Pac. 574 (1927). However, there are exceptions to this general rule, one being that the law will favor upholding a contract against a claim of uncertainty where one of the parties, as here, has entirely or partially performed his part of the contract. Hays v. Underwood, Administrator, 196 Kan. at 268; Restatement of Contracts § 33 (1932).
Furthermore, where it appears that the parties intended to enter into a binding contract but left particular matters to be determined in the future, the contract is not unenforceable on the ground of indefiniteness.
“If the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.
“The fact that the parties have left some matters to be determined in the future should not prevent enforcement, if some method of determination independent of a party’s mere ‘wish, will, and desire’ exists, either by virtue of the agreement itself or by commercial practice or other usage or custom. This may be the case, even though the determination is left to one of the contracting parties, if he is required to make it ‘in good faith’ in accordance with some existing standard or with facts capable of objective proof.” 1 Corbin on Contracts § 95. See also K.S.A. 84-2-305.
Here, there is conflicting evidence concerning whether the parties reached a definite agreement on the repayment schedule. Plaintiff testified that two years was fixed because the anticipated profits would permit repayment in that time and still cover plaintiff’s living expenses. Ninety days was considered, with repayment to come from plaintiff’s expected inheritance, but there was a question as to whether the estate would be settled in that time. The jury apparently resolved the issue in favor of the two years.
It is undisputed, however, that the parties did not discuss the interest rate to be charged. Nevertheless, the jury found that the parties intended to enter into a binding contract and this finding is supported by substantial competent evidence. Under the rule stated in Corbin, the loan agreement is not unenforceable by reason of an indefinite interest rate (or repayment terms) because those terms could have been reasonably determined through commercial practice or custom — plaintiff had borrowed money from the bank on at least one prior occasion. The bank obviously didn’t find the failure to agree on the interest rate to be an insuperable obstacle because it partially performed its part of the contract by advancing the $5,000 down payment, without even having a signature on a note. From plaintiff’s evidence the jury could readily infer that the parties contemplated an interest rate that would be the going rate, and the real reason the bank reneged on the additional $25,000 was a change of mind by the bank’s senior officers.
B. Alternatively, the bank argues that plaintiff could have mitigated his damages by borrowing the $30,000 elsewhere. Specifically, the bank points to a $30,000 loan obtained by plaintiff from the Brotherhood State Bank some two months later. It is not contended that this was in time to save the franchise deal, but that it shows that plaintiff had an alternative source of financing available.
Plaintiff’s testimony on this issue was that he went to at least two other banks and every other possible source he could think of without success. He did not go to the Brotherhood bank because his sister’s husband was president and he had determined not to go to his family for money. Although not fully developed, there was testimony indicating a serious dispute in plaintiff’s family. The loan actually secured was only sought “out of desperation” when the defendant bank began pressing for repayment of the $5,000 already lent — and lost by plaintiff when the franchise purchase fell through — and other creditors joined the pursuit.
On the general duty to mitigate damages we have said:
“After the plaintiff has reason to know that a breach has occurred, ... he is expected to take such steps to avoid harm as a prudent person would take. He cannot get damages for harm that could thus be avoided. . . . It is not reasonable to expect the plaintiff to avoid harm if at the time for action it appears that the attempt may cause other serious harm. He need not enter into other risky contracts, incur unreasonable inconvenience or expense, disorganize his business, or put himself in a humiliating position or in one involving loss of honor and respect.” Barbara Oil Co. v. Patrick Petroleum Co., 1 Kan. App. 2d 437, 441, 566 P.2d 389 (1977). See also cases cited.
In this case plaintiff’s testimony indicates that to mitigate in accordance with the bank’s theory would have, at the least, put him in a “humiliating position.” The jury was instructed on his duty to mitigate and found for him. The trial court, in ruling on the bank’s post-trial motions, specifically found that “His obligation to mitigate does not require him to go elsewhere for the loan that Westgate reneged on.” Both the jury and the court thus found that the bank did not carry its burden of proof on the affirmative defense of mitigation of damages. See Rockey v. Bacon, 205 Kan. 578, Syl. ¶ 6, 470 P.2d 804 (1970). These are in the nature of negative findings. We cannot disturb them on appeal in the absence of undisputed evidence or other factors not present here. See Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976); Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, Syl. ¶ 4, 500 P.2d 39 (1972).
C. We conclude there was substantial competent evidence to support the findings by the jury (and the trial court) that there was a binding contract to lend plaintiff $30,000 which was breached, and that plaintiff’s efforts to mitigate his damages by seeking to borrow elsewhere were all that could reasonably be expected.
II.
As to the $40,000 in lost profits, the subject of the main appeal, plaintiff’s evidence came largely from George Schuler, the proposed seller of plaintiff’s franchise. He testified that he had operated several similar businesses in Texas and Louisiana for a number of years. In his opinion the area in Hunt County, Texas, was comparable to the Clay-Platte County area in Missouri which plaintiff was to buy. He based this on area population and the number of directories put out by his company. On the same basis he found the White Rock area in northeast Dallas comparable to Wyandotte County, Kansas.
His testimony was that the Hunt County operation consistently produced net profits of $20,000 to $25,000 per year, the White Rock operation $35,000 to $41,000. The latter figures, he explained, were somewhat higher than could be expected in Wyandotte County because there were other similar operations in the Dallas area which, because of the expanded listings, made each more desirable. Basically, however, the gist of Schuler’s testimony was that plaintiff could reasonably expect similar results from his two operations in the Kansas City area.
In sustaining the bank’s post-trial motions in part the trial court orally stated:
“THE COURT: The question of whether there was a contract for the defendant to lend the plaintiff $30,000.00 was settled by the jury verdict. The jury, by its verdict, found that there was such a contract. The Court finds there is competent evidence to support that decision and, as a matter of fact, the Court is satisfied that the contract was proven. The $47,600.00 verdict really has two components, $7,600.00 so-called out-of-pocket and the $40,000.00 loss of business profits. As to the $7,600.00 there really isn’t much question; the plaintiff lost this by reason of the breach of contract. His obligation to mitigate does not require him to go elsewhere for the loan that Westgate reneged on. The $40,000.00 loss of business — the best evidence is, and I believe the little memo that the jury sent down would indicate that they were thinking in terms of $20,000.00 a year profit for two years, and there was evidence which might support that, but this would have required Mr. Butler’s services for the next two years; he couldn’t have operated this and done something else. We don’t have evidence as to what else he did. He was certainly under an obligation to mitigate damages. Now, he could have perhaps made $40,000.00 the first two years if he had been successful, but we don’t have evidence to support the fact that he was $40,000.00 poorer by reason of this deal falling through — maybe he went into something else that was a whole lot more remunerative — and as far as I am concerned, this $40,000.00 is still entirely speculative. The people down in White Rock, Texas, would take real exception to comparing Kansas City, Kansas, with White Rock, Texas, I promise you that. So I cannot let the $40,000.00 stand. I do at this time enter a judgment for the plaintiff for $7,600.00 and costs.”
In its brief the bank points out that the trial court’s grounds for setting aside the $40,000 for lost profits are not “absolutely clear.” We might agree, as to “absolutely,” but two elements of the court’s thinking do come through: (1) primarily the court found it significant that there was no evidence of plaintiff’s income from other employment during the two years it would have taken him to make the $40,000 in profits; and (2) the court also suggested that Schuler’s opinion evidence on which the $40,000 was based was derived from experience in at least one Texas community which might not be comparable to the Kansas City area.
The bank makes no effort to support the ruling on the first ground, and with good reason. As previously noted, mitigation of damages is an affirmative defense, and the burden of proof falls on the party asserting it. Rockey v. Bacon, 205 Kan. 578, Syl. ¶ 6. The absence of evidence of plaintiff’s earnings means the bank failed to sustain its burden, and not that plaintiff failed to prove his loss.
The second reason, at least hinted at by the trial court, is one point in the bank’s two-pronged attack on the lost profits verdict. The bank argues (1) it was impossible for plaintiff to establish lost profits because he never successfully operated the business, and (2) Schuler’s comparables were not comparable. We reject both arguments.
A. We would agree with the bank that speculation cannot be the basis for an award of lost profits. States v. Durkin, 65 Kan. 101, 68 Pac. 1091 (1902); McCracken v. Stewart, 170 Kan. 129, 223 P.2d 963 (1950); Sullivan v. Sproule, 176 Kan. 274, 269 P.2d 1015 (1954). However, the age-old concept that past profitable operation is a prerequisite to proving future profits was dealt a mortal blow in Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). There, before the breach the plaintiff had broadcast basketball games under the breached contract for three seasons, showing a profit for the first and losses for the next two. The trial court directed a verdict against him because he could not show established profitability on which to base future profits. The Supreme Court reversed, holding that the trial court had imposed an unreasonably strict standard of proof.
“Unquestionably, a method of establishing a loss of profits with reasonable certainty is by showing a history of past profitability. Past profitability of a particular business is not, however, the only method of proving lost future profits. The evidence necessary in establishing lost future profits with reasonable certainty ‘must depend in a large measure upon the circumstances of the particular case. . . .’ (Requirements of Certainty of Proof of Lost Profits, 64 Harv. L. Rev. 317, 319.) Absolute certainty in proving loss of future profits is not required. (22 Am. Jur. 2d, Damages, § 172.) What is required is that the court or jury be guided by some rational standard. (Brenneman v. Auto-Teria, Inc., 260 Or. 513, 491 P.2d 992; Smith Development Corp. v. Bilow Enterprises, Inc., [112] R.I. [203], 308 A.2d 477; Mechanical Wholesale, Inc. v. Universal-Rundle Corp., 432 F.2d 228 [5th Cir. 1970].) As to evidentiary matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. (McCormick, Law of Damages, § 219 [1935].) It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. (Peterson v. Bachar, [193 Kan. 161, 392 P.2d 853].)
“Strict application of the certainty doctrine would place a new business at a substantial disadvantage. To hold recovery is precluded as a matter of law merely because a business is newly established would encourage those contracting with such a business to breach their contracts. The law is not so deficient. (Hoge v. Norton, [22 Kan. °374].)
“Certainly the televising of conference basketball games and the selling of advertising in connection therewith is not a new or untried business. There are techniques available in the advertising and television business by which profits can be calculated with reasonable certainty to justify a contractual relationship.” 213 Kan. at 620. Emphasis added.
The bank seeks to distinguish Vickers on the ground that the business there had been in operation for three years, while the business here has not been operated at all by the plaintiff. We do not believe the distinction is valid. The Vickers test is not whether the particular partnership or company involved is new or untried, but whether the general business which the partnership or company will carry on is new or untried. This is clear from the last paragraph quoted above, and from the court’s reliance on Brown v. Hadley, 43 Kan. 267, 23 Pac. 492 (1890) and States v. Durkin, 65 Kan. 101, in both of which the particular enterprise was new but the general field of endeavor was established.
Here, the production, sale and distribution of telephone directories is not a new or untried business, as evidenced by Schuler’s operation of a number of such businesses from 1970-75, by the operations of his predecessor, and by the prior operation of such a business in the Kansas City area. It does not matter that plaintiff’s directory business never got underway. All that is required is that the directory business in general be sufficiently established so that people of experience in the business can estimate profits with reasonable certainty. That test was met.
B. The second ground for disallowing the lost profits— alluded to by the trial court and urged by the bank — is the alleged difference between the Texas communities and the Kansas City area. Those differences were recognized by Schuler in his testimony summarized above, and allowances were made. The jury in its notations on the verdict form indicated they foresaw profits of $20,000 each for two books over a two year period, thus discounting substantially the $25,000 and $35,000 annual profits from the two Schuler operations deemed comparable by him.
As we see it the weight to be given the Schuler testimony was to be determined by the jury and not the court. An analogous situation exists in condemnation cases where the value of land must be determined. In those cases, as in this, expert testimony is employed to determine value. Recognizing that no two parcels are exactly alike, courts nevertheless permit opinion testimony based on sales of comparable property. See, e.g., Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 805-6, 508 P.2d 954 (1973). Whether the “comparables” are sufficiently similar to the land in question as to be independently admissible is a question to be determined in the trial court’s discretion. Gault v. Board of County Commissioners, 208 Kan. 578, Syl. ¶ 3, 493 P.2d 238 (1972). In Gault the Court quotes with approval text material indicating that “if properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one either affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony . . . .” 208 Kan. at 582. Under K.S.A. 60-456(d) and 60-457 Schuler could have expressed his opinion of profitability without going into the data on which it was based, subject to the bank’s right of cross-examination. Cf. State v. Pyle, 216 Kan. 423, 442, 532 P.2d 1309 (1975).
Under these principles it was clearly proper for the trial court in this case to submit Schuler’s testimony to the jury, leaving it to counsel to cross-examine as to comparability and to argue the weight to be given to his opinion. The question is whether the post-trial order, which had the practical effect of striking the testimony, constituted an abuse of discretion.
The court admitted Schuler’s testimony over repeated objection. Although expressing some doubt, it submitted the question of future profits to the jury. When it struck the profit item from the verdict, in speaking of the jury’s finding of $20,000 annual profit for two years the court conceded “there was evidence which might support that.” It ruled as it did largely on the ground (shown above to be untenable) that plaintiff had not proven what his income was after the breach, and therefore had not shown “that he was $40,000 poorer.” Only in passing did the court remark that people in White Rock, Texas, would “take exception” to their community being compared to Kansas City, Kansas. This is not the same as saying the two communities are so dissimilar that any conclusions based on their similarities are worthless. If this is what the court’s offhand and seemingly jocular comment was intended to convey we do not find substantial support for it in the record. If it had been intended as a serious ground for the order, it would have amounted to an abuse of discretion. And, of course, even this comment doesn’t touch on Schuler’s comparison of Hunt County, Texas, with the Clay-Platte County area of suburban Kansas City, Missouri.
In short, we hold that the evidence of damages presented was the best available under the circumstances and the court properly submitted it to the jury in the first instance. The error was in striking the result, based on the trial court’s view of the weight to be given the evidence presented.
III.
The bank also argues that if plaintiff is entitled to the $40,000 in lost profits, he is not also entitled to the $7,600. We agree, and at oral argument plaintiff’s counsel conceded the correctness of this position. The losses included in the $7,600 — the $5,000 loan and interest, lost wages, etc. — are expenses plaintiff would necessarily have incurred if the entire loan had gone through, plaintiff had purchased the franchise, and reaped the $40,000 profit. The purpose of compensatory damages is to make the injured party whole, not to afford a windfall. Plaintiff cannot have both.
The result is that the judgment is reversed and the case is remanded to the district court with directions to enter judgment for the plaintiff for $40,000 and costs. | [
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Abbott, J.:
This is an interlocutory appeal by the State, pursuant to K.S.A. 1978 Supp. 22-3603, from an order suppressing evidence.
The defendant, O. B. Bohannon, Jr., was charged with one count of burglary (K.S.A. 21-3715) and one count of theft (K.S.A. 21-3701[o]). The charges arose out of a burglary of the residence of Eddie Taylor in which a number of pieces of citizens band (CB) radio equipment were stolen. Taylor was of the opinion his equipment made a distinctive sound when transmitting, and a few days after the burglary he heard what sounded like his equipment on the air. Through conversation, he learned the “handle” (Gambling Dog) and address of the person operating the equipment. Subsequent investigation disclosed that “Gambling Dog” was the handle of the defendant, O. B. Bohannon, Jr.
Taylor, a former reserve police officer with the Wichita Police Department, contacted a Lt. Bullins of the department and requested that Bullins meet him at 17th and Hillside. When Bullins arrived, Taylor told him of his suspicions regarding the defendant. Bullins and Taylor agreed that they had insufficient evidence to obtain a search warrant and that if they merely went to the defendant’s home, the odds were that they would not be allowed to enter and the CB equipment would be disposed of. The two men then went to the home of Taylor’s son-in-law, Robert Emerson. Taylor asked Emerson, who was familiar with the equipment, to go to defendant’s home and verify that it was Taylor’s equipment. Bullins instructed Emerson that he would need to be able to positively identify at least a portion of the equipment. Bullins and Taylor returned to 17th and Hillside in the police vehicle. Emerson, traveling in his own vehicle, proceeded directly to the defendant’s home. Emerson’s first attempt to view the equipment was unsuccessful and he returned to 17th and Hillside. The three men soon heard the distinctive transmitter noise, whereupon Emerson returned to defendant’s home and verified that Taylor’s CB equipment was in fact there.
Based on the information Emerson gave Bullins, a search warrant was obtained and the stolen CB equipment was seized. The defendant was charged with one count of theft and one count of burglary. On July 28,1978, defendant’s motion to suppress the evidence seized under the warrant was heard. In support of his motion to suppress, the defendant argued that Emerson was acting as an agent of the police. The State argued that Emerson’s search was private and hence outside the perimeters of the warrant requirement and the exclusionary rule. The trial judge found that Emerson was acting as an agent for the Wichita Police Department when he went to the defendant’s home to view the CB equipment and accordingly suppressed the evidence. The State then brought this interlocutory appeal pursuant to 22-3603.
At the outset we are met with three jurisdictional arguments by the defendant that this Court is without jurisdiction as a result of the State’s failure to timely file its appeal or comply with Rule 4.02(a) (224 Kan. xxxix) (failure to timely file a certified copy of the notice of appeal with the clerk of the appellate courts).
The first problem is one which is of growing concern to this Court and which results in unnecessary complications in many cases. The problem arises first as a result of trial judges issuing letter decisions and memorandum decisions in K.S.A. 60-258 judgments that fail to state whether the letter or memorandum alone is to serve as the journal entry or whether counsel should prepare a journal entry. Secondly, as in this case, some orders which are appealable are not judgments as contemplated by K.S.A. 60-258, but are otherwise appealable as contemplated by Rule 4.02(b)1 (224 Kan. xxxix), and this problem arises because the court fails to state whether the order is to be journalized before it is deemed to have been formally “entered.”
The decision to sustain the defendant’s motion to suppress was announced to defense counsel via a one-sentence letter dated 29 August 1978 from the trial judge, stating simply, “Please be advised that the Motion to Suppress, in the above entitled matter, has been sustained.” The State filed its notice of appeal in the Sedgwick District Court on September 11, 1978, more than ten days after the letter announcing the trial court’s decision.
K.S.A. 1978 Supp. 22-3603 provides that notice of appeal be filed within ten days after entry of the order. A journal entry which was approved by counsel and signed by the court was officially filed on September 27, 1978. The journalized order contained additional findings of fact and a conclusion of law that had not been previously announced by the trial judge. We can only conclude from these facts, plus the fact that the trial court neither made an oral order in the record nor filed its letter notifying counsel of its decision, and subsequently signed the journal entry of September 27, 1978, that it was the trial court’s intention that the order not be entered as contemplated by 22-3603 until the journal entry was filed with the court.
The defendant next contends the State’s notice of appeal was of no force and effect since it was prematurely filed. He reasons that the notice of appeal was filed before the entry of the order, whereas, as noted above, 22-3603 requires the notice of appeal to be taken within ten days after entry of the order from which the appeal is taken. Defendant relies on the line of cases typified by Guerrero v. Capitol Federal Savings & Loan Ass’n, 197 Kan. 18, 415 P.2d 257 (1966), all of which were decided prior to the adoption of Rule 2.03 covering premature appeals.
K.S.A. 1978 Supp. 22-3606 provides that unless otherwise provided by statute or rule of the Supreme Court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases. Although Rule 2.03 speaks in terms of “judgments,” when considered with Rule 4.02 (224 Kan. xxxix) and 22-3606 we are satisfied that it was intended to apply to appeal-able “orders” as well as judgments. The notice of appeal, although premature, was thus timely filed in this case. Carson v. Eberth, 3 Kan. App. 2d 183, 186-87, 592 P.2d 113 (1979).
The defendant also makes a jurisdictional challenge because of the State’s failure to forward a certified copy of the notice of appeal to the clerk of the appellate courts within three days after the filing of the notice of appeal, as required by Rule 4.02. The journalized order, however, was filed with the district court on September 27, 1978, and a certified copy of the same was filed with the clerk of the appellate courts the very next day. As noted in Carson, 3 Kan. App. 2d at 186, a premature notice of appeal lies dormant until such time as the judgment (or, as in this case, the order) is entered, at which time under Rule 2.03 the notice of appeal has the same effect as if it had been filed simultaneously with the entry of the judgment or appealable order. The order having been entered on September 27,1978, the premature notice of appeal is deemed to have been effectively filed on that date, and it follows that the filing of a certified copy of the order with the clerk of the appellate courts on the following day is timely and in full compliance with Rule 4.02.
Both parties agree that the acts of Emerson would have constituted an illegal search if he had been a police officer, leaving as the sole issue in this case whether or not there is substantial competent evidence to support the trial court’s finding that Emerson was acting as an agent for the Wichita Police Department when he conducted his warrantless search. We wish to emphasize that there is no question before this Court concerning the legality of the search or whether the viewing of the CB equipment came within the plain view doctrine.
It has been repeatedly held that the conduct of a private person acting independently and not under the authority or direction of the State is not included in the proscriptions of the Fourth Amendment of the United States Constitution or section 15 of the Kansas Bill of Rights. Burdeau v. McDowell, 256 U.S. 465, 65 L.Ed. 1048, 41 S.Ct. 574, 13 A.L.R. 1159 (1921); State v. Boswell, 219 Kan. 788, 793, 549 P.2d 919 (1976); State v. Gordon, 219 Kan. 643, 648, 549 P.2d 886 (1976).
In order to be admissible, evidence obtained through a search by a private individual must come to the State upon a “silver platter” and not as a result of any instigation by state officials or participation by them in illegal activities. Byars v. United States, 273 U.S. 28, 71 L.Ed. 520, 47 S.Ct. 248 (1927). The extent of official involvement in the total enterprise is the crucial element, for if it is too great the private individual’s role may be reduced to that of an agent. Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); Raymond v. Superior Court, 19 Cal. App. 3d 321, 96 Cal. Rptr. 678 (1971). Once an agency relationship is established, the full panoply of constitutional provisions and curative measures applies, and any evidence which the police could not legally seize or observe is also off limits to the agent. People v. Esposito, 37 N.Y.2d 156, 371 N.Y.S.2d 681, 332 N.E.2d 863 (1975).
Our Supreme Court has further held, in State v. Hruska, 219 Kan. 233, Syl. ¶ 3, 547 P.2d 732 (1976), that:
“It is only when government has preknowledge of and acquiesces in a private party’s conducting a search and seizure which the government itself could not have undertaken that the problem of compliance with Fourth Amendment standards arises from search by a private party.”
In Hruska, the Court held that evidence was admissible when the acts that were alleged to constitute impermissible conduct were performed by private parties prior to any contact with law enforcement authorities.
Various courts have applied a number of tests in addition to the preknowledge or acquiescence test set forth in Hruska. For example, was the search made under the authority or direction of the police (State v. Boswell, 219 Kan. 788); was the private citizen actively recruited by the police to make the search (State v. Boynton, 58 Hawaii 530, 574 P.2d 1330 [1978]); was he paid by them (Hajdu v. State, 189 So.2d 230 [Fla. App. 1966]); did the police instigate, influence, or arrange for the individual to make the search (Gundlach v. Janing, 401 F. Supp. 1089 [D. Neb. 1975]; United States v. Ellison, 469 F.2d 413 [9th Cir. 1972]); did they encourage him or participate in the search themselves (Gundlach v. Janing, 536 F.2d 754 [8th Cir. 1976])? In Raymond v. Superior Court, 19 Cal. App. 3d 321, evidence was suppressed where the police provided transportation to the private individual, chose the time of day for the search, and described the amount of the item which needed to be seized (marijuana).
In Moody v. United States, 163 A.2d 337 (D.C. 1960), a Mr. Johnson told police that he had seen some of his previously stolen property in Mr. Moody’s apartment. After Moody was arrested upon Johnson’s complaint, Johnson and an officer went to Moody’s apartment where the officer remained in the hall and Johnson made a warrantless entry and handed items he recognized as his to the officer. The court suppressed the evidence thus seized, holding that the Fourth Amendment may be violated just as effectively through the intervening agency of one not a policeman as by one who is, and that the policeman here could not be characterized as a willing but innocent beneficiary who stood silently by. Moody, 163 A.2d at 340.
In State v. Becich, 13 Or. App. 415, 420, 509 P.2d 1232 (1973), a Mr. Boley was under suspicion of theft. While claiming his innocence, he said that he knew where the stereo equipment was and would show his good faith by getting it back. The police drove him to the scene and observed him entering defendant Becich’s house and removing some boxes. The court suppressed the evidence, noting that the officer’s passive observation of a clearly illegal search and seizure constituted “sufficient official participation” to taint the items seized. Becich, 13 Or. App. at 420.
In Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal. Rptr. 575, 447 P.2d 967 (1968), Mr. Bradford, an agent for a credit card company, was working with the police in a credit card fraud investigation and accompanied them to the defendant’s house for the purpose of arresting him. Bradford noticed the defendant’s car parked down the street. Searching it of his own volition, he found evidence which was turned over to the police. The court ruled that it must be excluded in light of the policemen’s perception of the illegal search, which consisted of their silently standing by and observing the search, although they did nothing to aid in it.
An example of a search leading to admissible evidence is found in Gundlach v. Janing, 401 F. Supp. at 1090, wherein the manager of an airplane parts store reported a suspected theft. The police requested that he “establish that there was property missing from his inventory” before filing a complaint. No mention was made that the manager should attempt to obtain evidence. The manager, however, did search the defendant’s garage and found stolen property. The court held that the mere knowledge the private individual might conduct a search that would be illegal if made by law enforcement personnel, without any encouragement or instigation, was not enough to turn the private search into a governmental one.
The facts in the case before this Court fall between the two extremes of when the police had only an idea of what might occur and when they actually witnessed the illegal search and seizure taking place. We pause to note that where the trial court has made findings of fact, the function of this Court on appeal is to determine whether the findings are supported by substantial competent evidence, and in doing so all reasonable inferences are drawn in favor of the party who prevailed below. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976).
The trial judge made factual findings of the extent of participation of the police, and we hold that there is substantial competent evidence to support those findings. Officer Bullins participated in obtaining a person to go to the defendant’s home, an entity enjoying special protection by our constitutions, and there obtain evidence the officer did not think he could successfully obtain. We note that a police vehicle was used in the trip to recruit Emerson. Counsel for the State candidly admitted at oral argu merit that Bullins may have acted in a supervisory capacity, and he was clearly present during the entire planning stage. Bullins was also present when Emerson twice left to go to the defendant’s home. He further participated when he explained to Emerson what the latter must observe in the home, and was standing by in the immediate neighborhood while the illegal search took place. While he did not instruct Emerson to take any illegal action, the record contains evidence from which the trial court could conclude that he must have been aware of the probability such activity would take place.
The record is such that the trial judge might have reached an opposite conclusion, but in our opinion it does contain substantial competent evidence to support the findings necessary to suppress the evidence under the issues presented to this Court.
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Spencer, J.:
This is an appeal from a judgment directing apportionment of a highway condemnation award.
Defendant Margaret Sally Keach, together with other defendants not concerned on this appeal, were owners of undivided interests in the real estate taken. The Mission State Bank and Trust Company claims an interest in the real estate by virtue of a mortgage dated November 3, 1971, which purportedly was executed by Keach and acknowledged before Inez Ludwig, a notary public. Keach denies that she executed that mortgage and claims that the certificate of acknowledgment attached is false insofar as she is concerned. Her name does not appear on the note representing the debt for which the mortgage was security, and admittedly she did not sign that instrument.
At trial, testimony was presented which indicated that Inez Ludwig had on previous occasions notarized documents when members of the firm by which she was employed represented to her that they had seen the parties concerned sign the instrument. She was a secretary for the law firm of which Keach’s trial attorney Frank W. Hursh was a member, and of which Keach’s deceased husband had been a member. Inez Ludwig had been subpoenaed as a witness but her death occurred some three weeks before trial and the substance of her testimony had not been preserved.
The issue of apportionment was resolved in favor of the Bank. Keach’s motion for new trial was overruled and she has appealed. In support of her motion for new trial and on this appeal, it is argued that Keach’s trial attorney had a conflict of interest which denied her a fair trial. We make special note of the fact that nothing in this record purports to challenge the honesty or sincerity of the trial attorney, but rather it is contended that the circumstances may have adversely affected the attorney’s judgment in presenting the case for Keach.
The trial of this cause commenced May 27, 1977, and one witness testified that morning. Following the noon recess, and before any other witness had been called, Frank W. Hursh, attorney for Keach, addressed the court:
“Well, Your Honor, if I may at this time, it’s a little out of order, but I feel that I would like to just make a brief statement for the record. There is apparently a lot of inter-relationships between the parties here, and I would like to state, and I think everybody probably already knows it, so that there won’t be any question, I would like the record to show that Mr. Howard and I officed together as attorneys at one time. I, of course, am an attorney for Mrs. Keach, and he is an attorney in this matter. At different times, Mr. Howard represented Mr. Keach, and I may have, or I may not have during this period of time.
“Also, our firm, during this same period of time, and I know one or two cases where they did represent the Mission State Bank. Inez Ludwig, although she is deceased, a portion of the matter to be determined here was a secretary in the firm for some ten years, while at times different law partners operated there in that particular office. She was secretary for Keach, Howard and Jones; Keach, Howard, Woodworth and Hursh; and Keach, Howard and Hursh. Subsequently, just so the record is clear, Inez Ludwig died on the 5th day of May of this year. I was named as Executor in her will and attorney for her estate, so there is a lot of inter-relationships in the matters thereto. So that there won’t be any question about that, I think it should be reflected in the record.
“THE COURT: Inez is not involved in here, is she?
“MR. HURSH: Only so far as she was the Notary on those documents that are subject to questioning in this hearing. She is not a party directly.”
The trial proceeded without further delay.
In ruling on the motion for new trial, the trial court found that Hursh’s representation of Keach, despite his relationship with Inez Ludwig and his obligation as executor of her will and attorney for her estate, “must be viewed as a multiple representation of adverse interest^];” but that in this case no severe or blatant conflict of interest developed because Keach had not lodged a claim against Inez Ludwig or her estate until Hursh had withdrawn as her counsel. The court reasoned that Hursh was never in a position of having to represent or of having once represented both parties in direct litigation. The court adopted the Bank’s label of the situation as a “potential conflict of interest.” It was noted that the Supreme Court has not sanctioned participation by attorneys in situations where a conflict is likely to develop [Wilson v. Wahl, 182 Kan. 532, 539, 322 P.2d 804 (1958)], but nevertheless has condoned such where there has been consent of the client after full disclosure [In re Estate of Seeger, 208 Kan. 151, 490 P.2d 407 (1971)]. The court then stated that during the trial Keach knew that her attorney represented the estate of Inez Ludwig, was aware of the employer-employee relationship between Hursh and Ludwig, and that Hursh was her free choice of counsel. The trial court also reasoned that the argument that Keach did not fully realize the implication of the dual representation was incredible in light of the fact that she was the widow of a lawyer. We pause here to note that her husband’s death occurred some sixteen years prior to this trial and there is nothing in the record to indicate that Keach was trained in the law or that she had more than the ordinary acquaintance with the Code of Professional Responsibility by which the activities of lawyers must be governed. It was concluded that Keach had sufficient information from which to make a valid consent, which was exercised by her failure to object to Hursh’s continued representation of her cause, noting that silence may be deemed consent.
In Seeger, it was held:
“An attorney owes to his client fidelity, diligence and skill and an attorney cannot undertake the representation of conflicting interests or the discharge of inconsistent duties which may cause a breach of the trust due his client, however, with the consent of the client after a full disclosure, an attorney is not so restricted under the facts and circumstances related in the opinion.” 208 Kan. 151, Syl. If 3.
“Consent may arise from action, inaction or silence from which arises an inference that consent has been given, or it may exist where a person by his line of conduct has shown a disposition to permit another person to do a certain thing without raising an objection thereto.” 208 Kan. 151, Syl. ¶ 4.
We are also mindful of the dissent in Seeger where in speaking of the legal profession, it was said:
“There is no profession in which so many temptations beset the path of him who is to serve with strict integrity and loyalty. There are pitfalls at every step to be avoided if the integrity and good name of the bar and of the administration of the law are upheld.” 208 Kan. at 160.
“Consent by implication should not be recognized in cases of this kind. The integrity and good name of the bar and of the courts cannot be thus maintained in the eyes of the public. Full disclosure as required in the disciplinary rule is not made when a client and his cause is abandoned in open court during the hearing, and without advance notice ....
“Full disclosure should require that the alternatives available be explored with the client. In this case adjournment of the hearing should have been requested. The clients should have been advised of their right to hire another attorney to prosecute their case if they so desired .... The clients should in no case be forced into a consent, implied or otherwise, without an explanation of the exact nature of the conflicting interests . . . .” 208 Kan. at 161-162.
The record in this case reveals there was nothing done by court or counsel by way of explanation to Keach of alternatives which may have been available to her. There was no continuance requested by counsel or directed by the court. Keach does not appear to have been advised of a potential claim against the Inez Ludwig Estate nor of her right to employ other counsel in this cause.
In State v. Leigh, 178 Kan. 549, 552, 289 P.2d 774 (1955), it is stated:
“[A]ttorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been retained and received the confidence of a client, he cannot enter the services of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as, in effect, to be a part thereof. The rule is a rigid one, and it is well that it is so. It is designed not only to prevent the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from placing himself in a position where he may be required to choose between two conflicting duties.”
Our Code of Professional Responsibility defines “differing interests” as including “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” 224 Kan. cix.
In Wilson v. Wahl, 182 Kan. 532, it was held that an attorney, finding himself in a position of conflict of interest, should voluntarily have withdrawn when objection to his participation was made and “having failed to do so, it became the duty of the trial court to forbid his further participation therein.” See also Scott, Administrator v. Farrow, Executor, 192 Kan. 666, 391 P.2d 47 (1964); Alexander v. Russo, 1 Kan. App. 2d 546, 571 P.2d 350, rev. denied 222 Kan. 749 (1977).
True, Keach remained silent following disclosure by her attorney and did not lodge an objection to his further participation. Such is hardly surprising for, at that stage of the proceedings and without some inquiry as to her understanding of the situation and as to whether she wished to object, there was very little that she might have done. We find no merit in the reasoning that as the widow of an attorney Keach should have realized the implication of the dual representation. We hold that without a showing of full disclosure to Keach of the possible consequences of her attorney’s continued representation in this cause, her consent to the continued representation by that attorney was not properly to be inferred.
The testimony of Inez Ludwig was not preserved, as well it might have been in the exercise of diligence in the preparation of this cause, nor was there testimony from an expert witness which, as noted by the trial court, would certainly have aided in reaching a decision. Contemporaneously with the filing of the motion for new trial, Keach filed her affidavit in which she stated that early in 1977 she had been advised that the testimony of Inez Ludwig had been secured; and that she did not have a clear understanding of the statement made to the court by her attorney nor the opportunity to evaluate her need for representation free from conflicting interests. There was also filed at that time the affidavit of one Charles C. Scott, admittedly one with expertise as a document examiner. His findings would indicate a miscarriage of justice if the present judgment of the trial court is allowed to stand.
Rules pertaining to the granting of a new trial because of newly discovered evidence are reviewed in Wilcox v. Colwell, 193 Kan. 617, 396 P.2d 315 (1964). One such rule is that the evidence could not with reasonable diligence have been discovered and produced at the trial. Clearly, the testimony of a document examiner could and perhaps should have been produced at the trial and the fact that it was not so produced brings into focus the apparent conflict of interest. Another such rule is that the evidence must not be cumulative. The test of whether evidence is cumulative is not whether it tends to establish the same fact, but whether it is different in kind. New evidence of a higher type or character will not be classified as cumulative. 66 C.J.S., New Trial § 113, p. 323. The opinion evidence proposed apparently contradicts the evidence of the Bank and differs in kind and character from the direct evidence given by Keach at trial. See Woods-Ringstaff Lumber Co. v. Pond, 191 Kan. 465, 382 P.2d 282 (1963). The third rule is that the evidence must be such as to indicate a reasonable probability of a different decision. While recognizing our holding in McMurray v. Crawford, 3 Kan. App. 2d 329, 594 P.2d 1109 (1979), wherein it was noted that a notary’s certificate of acknowledgment gives rise to the presumption of execution of the instrument, which presumption may be overcome only by clear and convincing evidence, we must conclude that if the findings of the document examiner are determined by the court to be correct, there would be a reasonable probability of a different decision. In light of the facts as revealed by this record, we hold that Keach has affirmatively shown her entitlement to a new trial and it was an abuse of discretion to deny the motion.
In view of what has been said, we do not now decide the issue as to the apportionment of the appraisers’ award between landowner and lienholder.
Reversed and remanded with directions to grant defendant Margaret Sally Keach a new trial. | [
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Rees, J.:
Plaintiffs brought this action for damages for breach of implied warranties of merchantability (K.S.A. 84-2-314) and fitness for a particular purpose (K.S.A. 84-2-315). The named defendants are Ivan Smith and his corporation, Bestway Mobile Homes, Inc. The parties have referred to and treated Smith as the defendant and we will do likewise. Trial was to the court. Judgment was entered for defendant. Plaintiffs appeal. We reverse.
At issue on appeal are various questions involving interpretation and application of the Kansas Uniform Commercial Code (UCC). K.S.A. 84-1-101, et seq.
On October 14, 1973, the parties signed an agreement for the sale by defendant to plaintiffs of a new double wide Sheffield mobile home delivered to and “set up” at a rural site outside Halstead, Kansas. It was not a present sale. K.S.A. 84-2-106. Plaintiffs paid the agreed purchase price. Delivery was first attempted on November 15, 1973. En route to the site from defendant’s place of business in Wichita, the metal roof blew off one of the two halves of the mobile home. Both halves were returned to defendant’s lot where plaintiffs and defendant discussed what was to be done about the roof. Defendant made several telephone calls to the Texas factory that built the mobile home. He learned it would be two weeks before a new metal roof could be shipped to Wichita and it would take ten days to two weeks to build another mobile home identical to the one damaged. After further discussion, plaintiffs expressed the desire that a conventional composition shingle roof be built and installed. Defendant arranged for the work to be done with defendant and the factory splitting the cost. Plaintiffs examined the new roof at defendant’s place of business when it was completed.
Delivery and set up of the mobile home at plaintiffs’ site was completed in late February or early March of 1974. Plaintiffs immediately encountered problems with the windows and storm windows. They notified defendant. He promised to send a factory representative to make repairs. Plaintiffs then moved into the mobile home during a warm period in mid-March, 1974. It was soon discovered that the roof leaked. Other problems were experienced. Blowing wind could be felt two to three feet inside the exterior walls. The furnace ran continually but did not adequately warm the living areas. Snow drifted through the front door on one occasion. Plaintiffs made several complaints to defendant concerning the leaky roof and the seeming lack of proper insulation. Despite the problems, plaintiffs continued to live in the mobile home.
When spring came, so did the factory representative. He repaired windows and replaced some of the doors and ceiling tiles in April or May of 1974. That summer the factory representative brought fiberglass insulation from the factory and offered to reinsulate the mobile home. Plaintiffs refused to allow him to reinsulate unless he used foam core insulation. Thereafter, relations between the parties broke down and no further effort was made by defendant to correct matters.
Even more problems were then experienced. Copper water pipes froze and burst; electrical service went out; a hot water heater burned out; kitchen cabinets came apart; the floor cracked; and an oven malfunctioned. Plaintiffs filed this lawsuit in July of 1975. They began making their own repairs the following September.
The trial court entered findings of fact and three conclusions of law. The first conclusion of law is a listing of twelve statutory section numbers from the UCC together with the statement that the court had reviewed them and they were set forth, “without setting them out verbatim ... as the Conclusions of Law in this case based upon the . . . Findings of Fact.” The second conclusion of law is as follows:
“2. After reviewing the evidence and statutory provisions, the Court finds in favor of the [defendant] and finds the [defendant] attempted in all respects to comply and did comply except where [he was] prevented by actions of the Plaintiffs herein.”
The third conclusion of law simply states that the findings of fact and conclusions of law are filed and directs that defendant’s attorney prepare a journal entry.
We are unable to adequately divine the message intended to be conveyed by the first conclusion of law. We understand from it that the trial judge considered the twelve statutory sections applicable to the findings of fact. Beyond that we fail to comprehend his reasoning and conclusions upon consideration of the found facts and the identified statutory sections. We conclude that our primary review of this matter is necessarily limited to consideration of the second conclusion of law.
In a nutshell, this is an action for breach of implied warranties brought by a buyer against a seller of goods. K.S.A. 84-2-105(1). The action arises out of a transaction in goods and the UCC is applicable. K.S.A. 84-2-102. The subject sale was consummated when the defendant delivered and set up the mobile home at plaintiffs’ rural site. K.S.A. 84-2-106(1); K.S.A. 84-2-401(2).
The issue before us is whether defendant was entitled to cure nonconformance, defects, in spite of plaintiffs’ refusal to allow them to do so.
That part of the UCC allowing the seller to cure nonconformance is found at K.S.A. 84-2-508:
“84-2-508. Cure by seller of improper tender or delivery; replacement. (1) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
“(2) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.”
The right to cure or substitute for nonconforming goods arises only upon the buyer’s rejection of the goods. Bonebrake v. Cox, 499 F.2d 951, 957 (8th Cir. 1974).
The buyer’s right to reject goods and the manner and effect of rightful rejection are described in K.S.A. 84-2-601 and K.S.A. 84-2-602. The remedy of rejection is not available to a buyer after he has accepted the goods. However, acceptance does not of itself preclude other remedies such as an action for breach of warranties. K.S.A. 84-2-607(2). Tarter v. MonArk Boat Co., 430 F. Supp. 1290, 1294 (E.D. Mo. 1977); Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1372-1373 (8th Cir. 1977); Davis v. Enterprises and Davis v. Mobile Homes, 23 N.C. App. 581, 588, 209 S.E.2d 824 (1974).
Since the buyer’s acceptance precludes rejection and rejection is a prerequisite to the seller’s right to cure defects, it must be determined whether or not the plaintiffs accepted the mobile home.
What constitutes acceptance is governed by K.S.A. 84-2-606. Acceptance.occurs under any of three circumstances there set out:
“(1) Acceptance of goods occurs when the buyer
“(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
“(b) fails to make an effective rejection (subsection (1) of section 84-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
“(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”
K.S.A. 84-2-602(1) reads as follows:
“(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.”
In the present case, plaintiffs moved into and resided in the mobile home with knowledge of defects. Although they demanded repair, they did not reject the mobile home. Their conduct indicated their willingness to accept the mobile home as delivered; they failed to make an effective rejection; and their acts were inconsistent with defendant’s ownership of the mobile home. Acceptance occurred. Even if it were said that plaintiffs initially rejected the mobile home, their continued use of it converted their rejection into an acceptance. Jones v. Abriani, 169 Ind. App. __, 350 N.E.2d 635 (1976).
Our conclusion is consistent with decisions handed down in other jurisdictions. In Testo v. Russ Dunmire Oldsmobile, 16 Wash. App. 39, 47, 554 P.2d 349 (1976), the plaintiff sued for breach of warranty as to a used car he had purchased. The Washington court held plaintiff had accepted the used car when he took possession of the vehicle, paid for it, used it for nearly a week, and attempted to repair it. His conduct was found to be inconsistent with the seller’s ownership.
In Stamm v. Wilder Travel Trailers, 44 Ill. App. 3d 530, 534-535, 358 N.E.2d 382 (1976), the buyer was held to have accepted a travel trailer where seven to ten days after delivery he discovered defects but had gone on a trip in spite of the defects because he felt that the defendant would not refund his money.
In Bowen v. Young, 507 S.W.2d 600 (Tex. Civ. App. 1974), the buyer received a mobile home on January 4, 1971, and rejected the same on January 21, 1974. Although the rejection would have been valid, the buyer failed to follow the statutory procedure for obtaining satisfaction for the defects pursuant to the Texas Uniform Commercial Code. The buyer, instead, moved into the mobile home and spent $600 to repair it. The court concluded that such conduct constituted acceptance.
Because defendant had no right to cure nonconformance after plaintiffs’ acceptance, the trial court erred in concluding defendant was entitled to judgment because defendant’s compliance with the sale agreement was prevented by plaintiffs.
Plaintiffs claim error with respect to the following findings of fact made by the trial court:
“11. The plaintiffs thereafter made a contract for the repair of the damaged roof with a factory representative of Sheffield Mobile Homes.
“12. The contract made with the factory representative was not a contract of sale, but one for repair.”
If these findings are of any importance, it is because the UCC applies to transactions in goods and not to service or repair contracts. K.S.A. 84-2-102 and K.S.A. 84-2-106. Although the defendant acceded to plaintiffs’ request concerning the manner in which the roof was to be replaced by defendant, if there had been an agreement of the parties for defendant’s repair of the roof it would be irrelevant to the question of applicability of the UCC to plaintiffs’ claim for relief.
The trial court correctly found the risk of loss was on defendant when the roof blew off half the mobile home. Defendant admitted that he and the factory split the cost of replacing the roof. We have reviewed the record in detail and we conclude there is no evidence of a contract between plaintiffs and a factory representative for the repair of the roof. It was incumbent upon defendant to make the necessary repair if he was to meet his contractual obligations as seller. When the sale of the mobile home was finally consummated by delivery and set up, the new conventional type roof was an integral part of the mobile home and the UCC is applicable.
Plaintiffs' last point of error concerns trial court application of K.S.A. 84-2-613 to the facts of the. present case. It is unclear whether the trial court applied the statute in its conclusions of law. It is not one of the statutes listed in the first conclusion of law. If it was applied by the trial court, it is unclear how this was done. However, plaintiffs contend its application somehow prevented their recovery of damages. If that be true, then the statute was misapplied.
One of the trial court findings of fact was as follows:
“6. While the mobile home was being transported to the site, a casualty, as defined by [K.S.A. 84-2-613], occurred and the home was transported back to the Defendant’s lot.”
K.S.A. 84-2-613 is as follows:
“84-2-613. Casualty to identified goods. Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, or in a proper case under a ‘no arrival, no sale’.term (section 84-2-324) then
“(a) if the loss is total the contract is avoided; and
“(b) if the loss is partial or the goods have so deteriorated as no longer to conform to the contract the buyer may nevertheless demand inspection and at his option either treat the contract as avoided or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller.”
The statute obviously is applicable to casualty loss rendering the goods nonconformable, or defective in a case such as the one before us. The statute is not here applicable because plaintiffs’ claim for relief is not founded upon a claim that the absence of the half-roof blown off in November constituted a defect of which plaintiffs complain. Plaintiffs’ complaint is founded upon alleged defects existing when the mobile home left defendant’s control at the time of delivery and set up in late February or early March, 1974. The new roof became an integral part of the mobile home and a part of the bargain with implied warranties attaching when delivery and set up of the mobile home was tendered and accepted. K.S.A. 84-2-613 is not applicable.
Plaintiffs urge us to enter judgment for them and to award damages accordingly, or, in the alternative, to remand on the issue of damages alone. We decline to do so. To recover for breach of implied warranty, it must be established that a defect causing damage was present when the product left defendant’s control. Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 109, 535 P.2d 928 (1975). There are questions concerning the set up of the mobile home. Defendant was contractually obligated to deliver and set up the mobile home. The trial court found that the mobile home was set up in accordance with industry standards. There was evidence that the site chosen by plaintiffs was muddy and had been under water during recent rains. There are unresolved factual issues with regard to the source of the defects in the mobile home. If the plaintiffs’ site choice resulted in settling that in turn caused problems encountered by plaintiffs, defendant is not responsible.
The measure of damages question is not properly before us. Because it would be inappropriate under the circumstances, we do not address ourselves to what measure of damages should be applied.
Reversed and remanded for further proceedings in accordance with this opinion. | [
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Parks, J.:
Plaintiff judgment creditor, Jerry Williams, sought to attach by garnishment a debt which he claimed was owed by defendant Insurance Company of North America to its alleged omnibus insured, Donna McKenna, now Hatmen. After finding that no debt existed, the Shawnee County District Court entered summary judgment for the defendant insurance company. Plaintiff appeals.
Plaintiff was shot by Hatmen while on the premises of the Community Drive-In Theatre. He initiated a tort action against her and her employer, the theatre. Summary judgment was rendered for the theatre. On appeal, our Supreme Court reversed the summary judgment and remanded the case for a jury to determine whether Hatmen was acting within the scope of her employment at the time plaintiff was injured. Williams v. Community Drive-In Theatre, Inc., 214 Kan. 359, 368, 520 P.2d 1296 (1974). Upon remand a jury found that Hatmen was not acting within the scope of her employment, thus the damages awarded to plaintiff were assessed against Hatmen alone.
As Hatmen’s creditor, plaintiff takes her place and stands in her shoes, taking only what she herself could enforce. Harpster v. Reynolds, 215 Kan. 327, Syl. ¶ 1, 524 P.2d 212 (1974). Plaintiff’s primary contention is that the insurance company breached a contractual duty when it failed to defend Hatmen in the tort action against both Hatmen and her employer.
Because the policy issued by the insurance company to Hat-men’s employer limited the coverage under the omnibus provision to employees acting within the course of their employment, the insurance company vigorously argues that the jury verdict “laid to rest” any claim that it owed Hatmen a defense. We agree.
Our Supreme Court has recognized the general principle that an insurer’s obligation to provide a defense is ordinarily determined by both the pleadings and facts known or reasonably ascertainable by the insured. If those facts give rise to a “potential of liability” under the policy, the insurer owes its insured the duty to defend. This prospective test of the duty to defend the insured applies even though the claim is ultimately found to be groundless. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973).
The central question is whether this same principle applies to situations where the contested issue is whether the defendant is in fact an insured. The decisions from other jurisdictions are divided; some apply a prospective test and others adopt an ultimate showing test.
PROSPECTIVE TEST
Jurisdictions applying the rule that the insurer’s duty to defend, unlike its duty to pay, arises when the petition or complaint is filed and is to be determined at that stage of the proceedings rather than after the case has been decided on its merits, include Illinois, Texas, Idaho and Washington. Allstate Ins. Co. v. Gleason, 50 Ill. App. 2d 207, 200 N.E.2d 383 (1964); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22 (Tex. 1965); Pendlebury v. Western Casualty and Surety Company, 89 Idaho 456, 406 P.2d 129 (1965); Holland Amer. Ins. v. National Indemn., 75 Wash. 2d 909, 454 P.2d 383 (1969).
Those courts reason that the contract of the company to defend the insured whenever suit is brought against it to enforce a claim for damages would have little value and be rendered almost meaningless, if that duty did not arise during the early stages of an action brought against the named or omnibus insured. See Bloom-R.-K. Co. v. Indem’y Co., 121 Ohio St. 220, 226, 167 N.E. 884 (1929); Holland Amer. Ins. v. National Indemn., 75 Wash. 2d at 912.
The prospective test fosters judicial economy, with two fringe benefits being the avoidance of both extra legal fees and delay in processing the damage action. Under this theory, money spent by an insurance company in a declaratory judgment action to determine the defendant’s status as an insured is better spent in defending the main action. The same proof would undoubtedly be offered and the result would presumably be the same. Holland Amer. Ins. v. National Indemn., 75 Wash. 2d at 914.
ULTIMATE SHOWING OR RETROSPECTIVE TEST
Arizona, Louisiana and California apply an “ultimate showing test” of the duty to defend an alleged “omnibus insured.” See Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz. App. 424, 471 P.2d 309 (1970), rev. denied October 20, 1970; Smith v. Insurance Co. of State of Pennsylvania, 161 So.2d 903 (La. App.), rev. denied 246 La. 344, 164 So.2d 350 (1964); Butler v. Maryland Casualty Company, 147 F. Supp. 391 (E.D. La. 1956); Chicken Delight of Cal., Inc. v. State Farm Mut. Auto. Ins. Co., 35 Cal. App. 3d 841, 864, 111 Cal. Rptr. 79 (1973).
These cases hold that before the general principle regarding the duty to defend applies, it must be shown that under the policy the defendant is in fact an insured, named or omnibus. This must be so because the insurer’s obligation is not to provide a defense for a stranger merely because the plaintiff alleges that the defendant is an insured or alleges facts which, if true, would make him an insured. While an insurer may not decline the defense of an insured against an ultimately groundless claim, neither may it be compelled to defend an action against a party not entitled thereto under the policy provisions. Stated otherwise, the plaintiff may not create an obligation on the part of the insurer where no obligation previously existed. See Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz. App. at 430-431, where the following rationale for this view was cited by the Arizona Court of Appeals:
“If an insurer erroneously takes the position that notwithstanding the allegations of the complaint it has no obligation to defend, and facts subsequently establish that such duty did exist, then we are confident that the law will allow the injured party an adequate remedy for the breach by the insurer of its obligations under the policy. (See the many cases affording such a remedy cited in Annot., 50 A.L.R.2d 461 (1956)). On the other hand, if the insurer’s position is ultimately shown to be correct, then it should not be penalized by being forced to bear an expense which it did not contractually obligate itself to incur.” (p. 431.)
We adopt the ultimate showing test of the duty to defend an omnibus insured and accordingly, in determining whether the defendant had a duty to defend Hatmen, we look first to the language of the policy and then to the jury verdict in the instant case:
“INA [Insurance Company of North America] shall have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ....
“HI. PERSONS OR ENTITIES INSURED ....
“The unqualified word Insured includes:
“(a) The Named Insured;
“(e) any other employee of the Named Insured while in the course of his employment . . . .”
The policy language would fully justify a finding that it was the intent of the parties that the insurer have a duty to its insured to defend all suits against it for injuries which appear, from the investigation of the allegations of the complaint, to be within the ambit of the policy coverage. The policy language does not support a conclusion that it was intended that the pleadings be of controlling influence in determining who is, or is not, an insured within the policy definition. The fact remains that if Hatmen was acting within the course of her employment, the insurer contracted to defend her. If Hatmen was not acting within the course of her employment, she was a stranger and the insurer had not contracted either to defend her or to pay any damages which might be assessed against her. Cf. Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz. App. at 429. When the jury determined that at the time of the shooting Hatmen was not working as an employee of the Community Drive-In Theatre and not acting within the scope of her employment, she became a stranger to the contract.
We conclude that the defendant insurance company owed no defense to Donna Hatmen, nor was it required to pay damages on her behalf; thus it owes nothing to plaintiff Jerry Williams. Having reached this decision, it is not necessary to consider the other questions which emanate from plaintiff’s estoppel contentions.
We are mindful of the rules governing appellate review of summary judgment decisions and have applied them in this case. Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, Syl. ¶ 1, 575 P.2d 507 (1978). No issues of material fact remain; therefore the trial court properly sustained the garnishee insurance company’s motion for summary judgment.
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Foth, C.J.:
This is an original proceeding in habeas corpus. Petitioner Robert M. Berkowitz stands charged in the district court of Saline County with two counts of abuse of a child. He contends that his present custody by the respondent sheriff is unlawful because trial on the pending charges would subject him to double jeopardy. The case presents a profound conflict between two important interests of our society: on the one hand that malefactors not escape their just deserts; and on the other that its individual members not have to “run the gantlet” of trial and potential punishment more than once for the same offense.
Petitioner was originally charged in November, 1975, with the aggravated battery of Golda Smolin. Golda was the ten-month-old daughter of Margaret Smolin, with whom petitioner was living at that time. Margaret Smolin was also charged with aggravated battery. She was separately tried, and convicted as an aider and abettor of a principal who was presumably the petitioner Berkowitz.
Her conviction was affirmed in State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976). The opinion in that case contains a description of the factual basis for the charges against both Margaret and Berkowitz. For our purposes it is enough to note that there was alleged a pattern of severe mistreatment of the infant Golda over a period extending from at least July 17 through July 26, 1975.
As stated, petitioner was separately tried for aggravated battery as defined in K.S.A. 21-3414. Over his objection the jury was instructed on criminal injury to persons under K.S.A. 21-3431 as a lesser included offense. The jury convicted him of the lesser offense, and he appealed to the Supreme Court.
While that appeal was pending the Supreme Court decided State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), holding the criminal injury to persons statute (21-3431) to be unconstitutionally vague and therefore void. The State thereupon filed a confession of error in petitioner’s case, since it was obvious his conviction under a void statute could not stand. On July 25, 1977, the Supreme Court entered its order:
“Upon confession of error by the Appellee, the Appellant’s conviction, judgment and sentence is vacated and the Appellant is discharged with costs charged to the Appellee.”
In the meantime, substantially simultaneously with the filing of its confession of error, the State filed new charges against petitioner in Saline County. The complaint was originally in three counts, all charging abuse of a child under K.S.A. 21-3609. One was dismissed by the State and after a preliminary examination petitioner was bound over for trial on the presently pending two counts. One charges abuse of Golda Smolin between July 15 and July 18, 1975; the other, abuse of the same child on July 25, 1975.
Prior to his arraignment petitioner filed a motion to dismiss, raising the defense of double jeopardy. The motion was overruled and petitioner attempted to appeal to this court. On motion of the State we dismissed the appeal on August 24, 1978. The Supreme Court denied review of our order on November 8,1978. Petitioner thereafter commenced this proceeding. Pursuant to Rule No. 9.01 (a), 224 Kan. xlix, this court determined that the district court’s prior denial of relief was sufficient reason why the action should be brought in an appellate court. Accordingly, we stayed the impending trial and directed a response by the State, called for briefs, and heard oral argument.
I.
Our dismissal of petitioner’s appeal from the order denying his pretrial motion to dismiss was for lack of jurisdiction based on State v. Fisher, 2 Kan. App. 2d 353, 579 P.2d 167, rev. denied 225 Kan. 846 (1978). That case held that a pretrial denial of a claim of double jeopardy could not be separately appealed under Kansas statutes and Kansas case law, including State v. Hickerson, 184 Kan. 483, 337 P.2d 706 (1959) and State v. Wallace, 172 Kan. 734, 243 P.2d 216 (1952). Appellate review is available only after trial and conviction, on appeal from the final judgment against the defendant.
In Fisher the court discussed at some length Abney v. United States, 431 U.S. 651, 52 L.Ed.2d 651, 97 S.Ct. 2034 (1977). In Abney the Court held that a pretrial order denying a claim of double jeopardy was a “final decision” on that issue within the meaning of the federal statute permitting appeals only from final decisions. The Court there applied the federal “collateral order” doctrine because, among other reasons, to deny appellate review until after the trial would be to deny a substantial element of the constitutional right. As the Abney Court put it:
“To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” 431 U.S. 660-61. Emphasis in original.
In Fisher this court dismissed the appeal “with considerable reluctance,” implicitly inviting our own Supreme Court to adopt a construction of our statutory term “judgment” similar to the federal construction of “final order.” By its denial of review our court declined the invitation. The result is that unless habeas corpus is available a defendant would have no appellate forum available in the Kansas courts to vindicate a valid double jeopardy claim before he is in fact subjected to such jeopardy. Under those circumstances the federal courts would reluctantly but unhesitatingly step in to fill the void.
Previous Kansas case law, though scarce, indicates that habeas corpus is a proper vehicle to raise the defense of double jeopardy. In Kamen v. Gray, 169 Kan. 664, 220 P.2d 160 (1950), defendant’s first trial ended in a mistrial and he was recharged. Defendant then filed a writ of habeas corpus, raising the double jeopardy issue. On appeal, the propriety of habeas corpus in such circumstances was discussed:
“The state contends that habeas corpus did not lie in this case for the reason that petitioner’s cause is still pending and undetermined in the lower court. However, this court held many years ago that if the petitioner was entitled to his discharge in the district court, he ought to be released in his proceeding by habeas corpus, as that proceeding is the only one which affords him a speedy remedy. If his only remedy is by appeal, he must continue wrongfully restrained of his liberty until the case is finally determined by the district court, as an appeal can be taken by the defendant only after judgment. It would be a palpable violation of the bill of rights, and also of the statute, to require an accused who is entitled to his discharge, so far as relates to the offense for which he was committed, to be restrained of his liberty indefinitely at the instance of the state, or upon the order of the court, to await a final trial, or determination of the case against him.” 169 Kan. at 669. Emphasis added.
Although that is the only case we find in which the issue is discussed, the remedy was apparently assumed to be available in In re Christensen, 166 Kan. 671, 203 P.2d 258 (1949); Struble v. Gnadt, 164 Kan. 587, 191 P.2d 179 (1948); Claflin v. State, 154 Kan. 452, 119 P.2d 540 (1941); and In re Lewis, 152 Kan. 193, 102 P.2d 981 (1940).
We therefore conclude that habeas corpus is an appropriate vehicle for challenging a trial court’s pretrial denial of a claim of double jeopardy. Where, as here, the facts are not in dispute or may be determined from transcripts or other evidence in written form, an appellate court may be a proper forum in the first instance. If testimony is required, the district court is the place to start, with an appeal to this court if necessary, even though a judge of that court may have already overruled a motion to dismiss.
II.
The State suggests that petitioner waived the defense of double jeopardy by failing to raise it at his preliminary examination, but instead waiting until just before his arraignment. It relies on Cox v. State, 197 Kan. 395, 416 P.2d 741 (1966). The Court there observed that double jeopardy is an affirmative defense which is waived if not asserted in a timely fashion. See discussion and cases cited in 197 Kan. at 402. It held that by his action and inaction Cox waived the defense because the principle of waiver is applicable “when a defendant on arraignment not only fails to affirmatively interpose a defense of former jeopardy but voluntarily requests leave to withdraw a plea of not guilty and enters a plea of guilty to a lesser included offense.” 197 Kan. at 403. Thus, even under Cox the soonest that a waiver could be found was at arraignment.
Under our present Code of Criminal Procedure the time is even later. Clearly the defense need not be interposed at the preliminary examination; K.S.A. 1978 Supp. 22-2902(3) provides that “[t]he defendant shall not enter a plea at the preliminary examination.” Instead, pretrial motions are governed by K.S.A. 22-3208. That statute requires that defenses not going to the merits be raised by motion — generally a motion to dismiss. Subsection (4) provides:
“(4) The motion to dismiss shall be made at any time prior to arraignment or within 20 days after the plea is entered. ... A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.” Emphasis added.
Under subsection (5) the motion is generally to be determined before trial, and under (6), “If a motion is determined adversely to the defendant he shall then plead if he had not previously pleaded. A plea previously entered shall stand.”
As we read the statutes there is no waiver unless the defendant pleads guilty, or unless he consents to go to trial without raising an available defense based on the institution of the prosecution. Here the motion to dismiss was made before arraignment; under 22-3208(4) he could have waited until twenty days after, so long as that was still before trial. We conclude there was no waiver.
III.
Perhaps the most difficult question presented by this case is whether petitioner has been in jeopardy at all. In resolving that question we must first recognize that he went to trial on only one count, that of aggravated battery. He was convicted of what was then conceived to be a lesser included offense — criminal injury to persons — but which later turned out to be no offense at all. The question is the effect of this previous abortive prosecution.
As to the aggravated battery charge our statute on multiple prosecutions, K.S.A. (now 1978 Supp.) 21-3108, gives us the answer. The last sentence of subsection (1) provides:
“A conviction of an included offense is an acquittal of the offense charged.”
In addition, subsection (5) provides:
“In no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.”
Together the two provisions codify the Fifth Amendment double jeopardy rule of Green v. United States, 355 U.S. 184, 2 L.Ed.2d 199, 78 S.Ct. 221 (1957). Although that rule was not applicable to the states at the time 21-3108 was drafted as part of the new Kansas Criminal Code, it was shortly thereafter made so through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969).
The problem of the invalid conviction will be considered later. What is clear from the statute and from Benton is that the jury verdict in the original trial acquitted petitioner of aggravated battery, the only crime with which he was charged.
IV.
It has been said that “[t]here has been enough written about double jeopardy to satisfy the most avid scholar.” Schaefer, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif. L. Rev. 391 (1970). Nevertheless, because the position of Kansas in the forefront of the jurisdictions attempting to make the guaranty meaningful may not be fully recognized, it seems appropriate to review briefly the present state of our law and how we arrived at it.
A. The Federal Rule. Until now we have been discussing double jeopardy in a federal constitutional sense. To date the United States Supreme Court has recognized two aspects of double jeopardy under the Fifth Amendment. The first is the “same evidence” or “identity of elements” test — the so-called Wharton Rule — most recently exemplified by Brown v. Ohio, 432 U.S. 161, 166, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977):
“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 [76 L.Ed. 306, 52 S.Ct. 180] (1932):
“ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .’
“This test emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .’ Iannelli v. United States, 420 U.S. 770, 785 n. 17 [43 L.Ed.2d 616, 95 S.Ct. 1284] (1975).”
Under this test a defendant may be separately punished for a number of crimes, even though arising out of the same transaction, so long as each has at least one statutory element not required to prove the others. In addition, the defendant may be separately tried for each separate offense, even though related, so long as at each trial evidence is required which is not required in the others.
The second aspect of the federal guaranty is the “collateral estoppel” doctrine espoused in Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189 (1970). Under that doctrine an issue necessarily determined in the defendant’s favor in one prosecution may not be relitigated in a later one. Thus in Ashe an acquittal of a charge of robbing one of six participants in a poker game established that the accused was not a participant in the robbery and precluded a later prosecution for robbing the other victims. This despite the fact that under the “same evidence” test it would have been proper to try, convict and punish the defendant separately for each of the six robberies.
The limitations of these two doctrines are apparent. The same evidence rule permits repeated prosecutions with their attendant delay, expense and anxiety, so long as the crimes are distinct. The collateral estoppel rule requires an often fruitless inquiry into just which issues were resolved by the general verdict of the jury.
Recognition of these limitations has led to considerable agitation in both judicial and scholastic circles for the inclusion in the federal rule of the doctrine of “compulsory joinder,” under which all crimes of which evidence will be offered, or at least all arising out of a single act, episode or “transaction,” must be joined in one prosecution. See Schaefer (then Justice of the Illinois Supreme Court), Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif. L. Rev. 391 (1970); Note, Double Jeopardy: Multiple Prosecutions Arising from the Same Transaction, 15 Am. Crim. L. Rev. 259 (1978); Ashe v. Swenson: Criminal Law— Double Jeopardy — Collateral Estoppel, 48 Den. L. J. 130 (1971); Note, Ashe v. Swenson: Collateral Estoppel is Constitutionally Required in Criminal Cases Because it is Embodied in the Fifth Amendment Double Jeopardy Clause, 69 Mich. L. Rev. 762 (1971); Twice in Jeopardy, 75 Yale L. J. 262 (1965). Brown v. Ohio, 432 U.S. at 170 (Brennan, J., concurring, joined by Marshall, J.); Ashe v. Swenson, 397 U.S. at 453-4 (Brennan, J., concurring, joined by Douglas and Marshall, JJ.); Thompson v. Oklahoma, 429 U.S. 1053, 50 L.Ed.2d 770, 97 S.Ct. 768 (1977) (Brennan, J., dissenting, joined by Marshall, J.).
The objective of the compulsory joinder rule is to further the constitutional guaranty against multiple trials; it is therefore not concerned with multiple convictions or multiple punishments for separate offenses. See Abney v. United States, 431 U.S. at 660-61. The compulsory joinder doctrine has not yet commanded the majority required to make it a constitutional requirement, but there appears to be a trend in that direction among the federal circuits and in state courts and legislatures. See Note, 15 Am. Crim. L. Rev. 259, 287-88. Kansas, as we shall see, adopted the doctrine some forty-five years ago.
B. The Kansas Rule. In Kansas, the public policy regarding multiple prosecutions has been of legislative concern since Territorial days. Our first jeopardy statute, former K.S.A. 62-1444, found its origin in the Territorial Statutes of 1855. From 1868 until its repeal effective July 1, 1970, it provided:
“When the defendant has been convicted or acquitted upon an indictment or information for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment or information for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.”
This is traditional, constitutional double jeopardy language. Kansas from the beginning used the “same evidence” test in determining whether a second prosecution was barred. See e.g., State v. Horneman, 16 Kan. 452 (1876), where the court quoted Wharton in ruling that a prosecution for shooting a person was not barred by double jeopardy where the former prosecution was for shooting a horse, even though both charges arose out of the same shooting: “Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise.” 16 Kan. at 454.
Similar traditional analysis led to the result in the watershed case of In re Brown, 139 Kan. 614, 32 P.2d 507 (1934). There the accused was tried on an information charging one count of statutory rape. The crime was alleged to have occurred within the preceding two years, but not on any particular date. At trial evidence of many occurrences of sexual intercourse during the two-year period was presented, and the State eventually elected to rely upon occurrences of March 18, 1932. When the accused was acquitted of this charge, the State brought new charges for the same offense against the same person on five specific dates, all included within the time covered by the first prosecution. Defendant filed an original proceeding in habeas corpus which the Court denied, holding that the “accused will not be ‘twice put in jeopardy for the same offense’ (Bill of Rights, § 10) as to any occurrence other than that of the date relied on (March 18, 1932) in the first trial.” 139 Kan. at 615, Syl. ¶ 4. The result was that although evidence of many separate crimes had been admitted in the first trial, because only one had been ultimately relied on the State could retry him separately on each of the others.
The decision in Brown evoked an immediate reaction from the legislature. The following year it enacted Laws of 1935, ch. 163, § 1, which later became K.S.A. 62-1449:
“When one is properly charged in one or more counts of a complaint, indictment, or information with an offense, or offenses, against any of the laws of the state, and upon the trial of the action evidence is admitted of other offenses which might have been included as other counts in the complaint, indictment, or information, or on which the state might have elected to rely in the action then being tried, a conviction or acquittal on the charge, or charges, as made in the complaint, indictment, or information, shall operate as a bar to any subsequent prosecution of the same person in another action for any act or acts for which the state could have asked for a conviction under the complaint, indictment or information in the former trial.”
The statute is clearly designed to reverse the rule of Brown and is a codification of the compulsory joinder rule. That legislative motive and the broad thrust of the statute were fully recognized in State v. Momb, 150 Kan. 674, 95 P.2d 349 (1939); State v. Momb, 154 Kan. 435, 119 P.2d 544 (1941), and Struble v. Gnadt, 164 Kan. at 589-90. As the Court said in the second Momb case, “It is common knowledge the 1935 statute, here involved, was enacted for the express purpose of changing the law of jeopardy as laid down in our 1934 decision in the case of In re Brown, 139 Kan. 614, 32 P.2d 507.” 154 Kan. at 440-41.
In the Momb cases three separate indictments had been returned against Momb for blackmailing operators of slot machines. Each indictment charged a similar offense, the essential difference being that each offense was committed against a different person, named respectively Mans, Hiemerman and Ketzner. The first case tried involved Momb’s alleged blackmailing of Mans, and the jury returned a verdict of not guilty.
The second case to be tried involved Hiemerman. Momb filed a plea in abatement based on 62-1449, because in the Mans prosecution evidence of the Hiemerman offense had been admitted, presumably to show intent or plan of operation. (Today the same justification would be under K.S.A. 60-455.) The trial court sustained the plea, but on appeal the Supreme Court reversed in the first Momb case, State v. Momb, 150 Kan. 674. The Court’s reasoning was that the Hiemerman offense was not in fact charged in the Mans indictment so that Momb could not have been convicted of it. Hence, the Court felt, he had not really been in “jeopardy” on the Hiemerman count.
After the remand of the Hiemerman case the State elected to go to trial instead on the third, or Ketzner indictment. Momb again filed a plea in abatement raising the issue of double jeopardy under 62-1449. In support of his plea he introduced the indictment in the Mans case as well as testimony by Ketzner in that case, which if believed fully established the commission of the Ketzner offense. Momb’s plea was overruled at the trial level and he was convicted of the Ketzner offense. In the second Momb case the Supreme Court reversed, overruling the first Momb case in the process.
In its re-examination of the statute the Court held:
“There can be no doubt concerning the fact that the statute deals with jeopardy. It clearly was intended to supplement the existing law upon that subject in some manner. The title of the act clearly says so. The title also says the act relates to subsequent prosecutions. In what respect, or respects, did the act undertake to supplement the existing law of jeopardy with respect to subsequent prosecutions? It appears the statute was intended to supplement the former law of jeopardy by erecting a new bar in two separate and distinct instances or circumstances. Those instances or circumstances were separated in the statute by the use of the disjunctive word ‘or.’ For the purpose of clarity we have separated those instances or circumstances by inserting the numbers (1) and (2) in the statute. So read that portion of the statute provides:
“ ‘. . . and upon the trial of the action evidence is admitted of other offenses which [1] might have been included as other counts in the complaint, indictment, or information, or [2] on which the state might have elected to rely in the action then being tried . . . .’ (Emphasis supplied.)
“Upon careful reexamination of the statute, it is the opinion of the majority the concluding portion of the statute, to wit: ‘for which the state could have asked for a conviction under the complaint, indictment or information in the former trial,’ cannot be read and interpreted independently from, but must be read and construed in conjunction with, the title and the former part of the statute which expressly designates the two new instances or circumstances with respect to which the former law of jeopardy was intended to be supplemented. In other words, it would appear the lawmakers, by the use of the words contained in the concluding portion of the statute, to wit: ‘could have asked for a conviction under the complaint, indictment or information in the former trial,’ intended the former trial should operate as a bar to a subsequent prosecution under either of the two circumstances previously expressly designated in the statute. Applying that interpretation, it means the subsequent prosecution in the instant (Ketzner) case, was barred if the state could have asked for a conviction on the Ketzner offense had that offense been included as a separate count in the indictment in the Mans case. Clearly, and admittedly, that offense might have been included. Clearly, had that offense been included, the state could have asked for a conviction on the Ketzner count under the indictment in the former trial. The result is the instant action is barred.” 154 Kan. at 440. Emphasis added.
The second Motnb decision was handed down on the same day as Claflin v. State, 154 Kan. 452, 119 P.2d 540 (1941), which involved several fires occurring over a short period of time at a fraternity house at the University of Kansas. Claflin had originally been charged with four counts of arson in one complaint. The State later dismissed that complaint and filed four separate complaints, based on four separate fires. He was bound over for trial and four separate informations were filed. He was first tried and acquitted on one of the informations (No. 3786). The only material evidence showing Claflin to have been the arsonist was a confession in which he admitted committing all four offenses. After his acquittal on the first charge (presumably because the confession was coerced) Claflin sought a writ of habeas corpus to prevent being tried on the other three informations. The district court denied the writ, but the Supreme Court reversed, saying:
“Here the matter to be decided seems to fall precisely under the letter and purpose of the statute of 1935. The offenses charged against Claflin not only could be but originally were charged in four counts of a single complaint. There was no change in those charges when by a mere strategical maneuver of the prosecution the same four identical charges were filed against him in four separate complaints and the first complaint dismissed. And certainly there would not have been the slightest difficulty in including all four of the complaints as counts in one information. Moreover, even without the statute of 1935, simple justice to the accused, as well as a decent regard for the taxpayers of Douglas county, should have prompted the state to avoid four lengthy and expensive criminal trials on the four charges so similar in every respect by including them in one information and by putting the accused to the hazard of conviction in one fair trial before a jury and no more. The evidence relied on for conviction in information No. 3786 was the purported confession of Claflin completely covering all four attempts to set fire to the building; and that confession was not more applicable to the offense charged in information No. 3786 than it was to each of the other offenses. The evidence as to the commission of those other offenses did not creep into the case on trial casually or incidentally. It was thoroughly aired in all its details. Indeed, it constituted all the material evidence in the case tried — so much so that the trial court instructed the jury not merely to disregard the confession if they believed defendant was coerced into making it but to acquit him without hesitation. That instruction manifestly was prompted by the fact that the state had no other evidence to produce on which to ask for a conviction.
“Furthermore, the circumstances of the four alleged offenses were so similar in every respect that the state’s evidence — that is, the confession — if believed to have been obtained voluntarily, would have justified a verdict of guilty whichever one of the four informations, Nos. 3786,3787,3788 or 3789, had been used as the basis of the prosecution in the case which was tried.” 154 Kan. at 455-6. Emphasis added.
In Struble v. Gnadt, 164 Kan. 587, the Court affirmed the denial of a writ of habeas corpus based on a jeopardy claim under 62-1449. There evidence of the three offenses charged had been introduced in a preliminary hearing, not at a trial. In concluding there had been no jeopardy, the Court commented on Momb and Claflin:
“These are the only opinions in which we have considered this section. It will be seen that in both the Momb and Claflin cases there had been a trial in the district court where all the evidence sought to be used in the trial of the subsequent case had been used in the trial of the first case, the defendant had been acquitted, and the statute had been invoked to prevent the defendant being tried again and the same evidence used. In the Claflin case we did, it is true, say that simple justice would require that defendant should have been tried for all four offenses as separate counts in the same information. We did not say, however, we would have allowed the writ for that reason alone had it not been for the statute.” 164 Kan. at 591.
The effect of 62-1449 was discussed in a different context in State v. Neff, 169 Kan. 116, 218 P.2d 248, cert. denied 340 U.S. 866 (1950), where the defendant attacked the joinder of two murder charges on the ground that the two offenses were unrelated. The Court rejected this argument and ruled that the trial court did not abuse its discretion in refusing to require an election, since the State’s direct evidence tying the defendant to the murder in both cases consisted of a single written confession. The Court noted:
“Appellant, however, also overlooks our 1935 legislative enactment relied on by the state, G.S. 1935, 62-1449. Had the state filed separate informations on these offenses and introduced the confession, evidence covering both offenses, in the first trial a later prosecution on the other count not included in the information of the first case tried would have been barred by virtue of that statute. (State v. Momb, 154 Kan. 435, 119 P.2d 544; Claflin v. State, 154 Kan. 452, 119 P.2d 540.) The state was not compelled to pursue a course which precluded a trial of both offenses.” 169 Kan. at 122.
The circumstances which triggered the application of 62-1449 were restated in State v. McCarther, 198 Kan. 48, 422 P.2d 1012 (1967), where the Court considered appeals from three convictions of first-degree robbery. McCarther committed the three robberies after he had escaped from the county jail awaiting trial on other charges and while he was a fugitive from justice. Upon his capture, McCarther was also charged with one count of escape from jail. The State sought to consolidate the escape charge with the three robbery charges for trial, but this motion was overruled. McCarther was tried on the escape charge alone, then on the three robbery charges. Both trials resulted in convictions.
On appeal from the robbery convictions, McCarther contended that his prosecution for the robberies was barred by 62-1449. The Court rejected this contention, reasoning:
“K.S.A. 62-1449 is not applicable to the facts of this case. An essential component of 62-1449, supra, is the admission of evidence at the first trial. The sense of the statute is that the state may not retry a defendant for any offense which might have been included as an additional count in the information or on which the state might have elected to rely when evidence thereof was admitted at the first trial. (State v. Momb, 154 Kan. 435, 119 P.2d 544; 9 Kan. L. Rev. 440.)
“Thus, if evidence of the Maxwell, or the Brown, or the Jershin robberies had been admitted at McCarther’s trial for escaping jail, we think the statute (62-1449, supra) would have application. However, it is precisely in the area of evidence admitted at the escape trial that the defendant’s argument is fallacious. In short, our attention is not directed to the admission of any evidence in the escape case which tended to prove either one or more of the foregoing robberies.” 198 Kan. at 50.
The only evidence in the jail escape trial which McCarther could point to as constituting evidence of the robberies was the testimony of the jailer who checked McCarther back into jail after his escape. He testified that “we retyped the book-in sheet on him and added the new charges on the commitment they brought in.” 198 Kan. at 50. The Court concluded that this evidence did not constitute “evidence ... of other offenses” within the meaning of 62-1449.
The distinction between the compulsory joinder rule embodied in 62-1449 and the identity of elements test grafted on 62-1444 was recognized in Coverly v. State, 208 Kan. 670, 493 P.2d 261 (1972). The events there also involved an escape from the county jail, which was accomplished by an assault on the jailer. The defendant first pleaded guilty to the escape charge, then to the assault charge. He later filed a motion under 60-1507 asserting that: (1) the assault and the jail break were so interwoven as part of one continuous transaction that the State could not separate and make two offenses of them; and (2) conviction of the escape charge barred prosecution for the assault. This assertion was based on both the constitution and on the statutory provisions of 62-1444 and 62-1449.
In rejecting the constitutional argument, the Court noted that the proper test concerning whether a single transaction may constitute two separate and distinct offenses is the “same evidence” or identity of elements test — whether each offense required proof of a fact which the other does not. Since proof of a jail escape is not necessarily proof of assault, and vice versa, prosecution for both did not constitute double jeopardy. The same reasoning applied as well to the argument based on 62-1444, since the test in applying that statute was also the “same evidence” test. However, application of the “same evidence” test did not dispose of the argument based on 62-1449. The application of 62-1449 turned not on the evidence necessary to sustain each charge, but the evidence introduced at a prior trial. As the Court stated:
“Appellant’s argument under former K.S.A. 62-1449 ... is slightly different. The thrust of the section is double jeopardy, but the operational fact is a trial at which evidence is introduced. As was stated in State v. McCarther, 198 Kan. 48, 50, 422 P.2d 1012:
“ ‘. . . An essential component of 62-1449, supra, is the admission of evidence at the first trial. The sense of the statute is that the state may not retry a defendant for any offense which might have been included as an additional count in the information or on which the state might have elected to rely when evidence thereof was admitted at the first trial.’ (Italics in the original.)
“Thus if there had been a separate trial of the jail break charge at which evidence of the assault had been admitted, subsequent prosecution for the assault would have been barred under the statute. The state’s remedy, had the matter gone to trial, would have been to include both charges as separate counts in one information or to have sought a consolidation.
“Here, however, there was no trial and no evidence introduced. The statute was therefore inapplicable, as the court below correctly held.” 208 Kan. at 672-3.
C. It is against this historical background that we must construe our present statute, K.S.A. (now 1978 Supp.) 21-3108(2)(a). The 1968 Judicial Council Comment on the then proposed legislation stated:
“Subsection (2) provides that in certain instances an earlier prosecution may bar a subsequent prosecution for a different offense, whether a violation of a different statute or a different violation of the same statute.
“Subsection (2) (a) provides a bar, under circumstances now included within K.S.A. 62-1449.”
Analysis of the statute bears out the Comment. It actually incorporates both the compulsory joinder rule of former 62-1449 and the constitutional identity of elements rule in one subsection, with two clauses separated by a semicolon:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime ... if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely;
[compulsory joinder rule]
or was for a crime which involves the same conduct, unless such prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began . . . .”
[identity of elements rule]
The first clause, it will be seen, is essentially the same as the former 62-1449.
The independence of the two clauses was recently recognized in State v. Edgington, 223 Kan. 413, 573 P.2d 1059 (1978). The defendant there, a city councilman of Overland Park, had been previously prosecuted for failing to report a change in his income as required by K.S.A. 75-4302(d), resulting in an acquittal. He was then prosecuted and convicted for perjury for lying about his income in a divorce proceeding. On appeal from the perjury conviction, he argued that the compulsory joinder portion of 21-3108(2)(a) barred the perjury prosecution because certain physical evidence (checks representing income) which had been used in the first trial was also used in the second.
Although the Court did not accept the argument, it did agree that the defendant’s grammatical analysis of the statute — i.e., as having two separate parts — was “technically correct.” Even on that basis, however, there was no bar to the subsequent prosecution because the checks as introduced in the first trial did not constitute “evidence” of perjury as charged in the second. As the Court put it:
“Specifically, in the first trial, there was no evidence of the crime of perjury. The state did introduce facts, including physical evidence, which were common to each prosecution and which in the context of each prosecution became evidence supporting that particular offense. The checks which were introduced in the perjury trial were not evidence of perjury until the defendant’s testimony in the divorce proceeding was admitted. Similarly, in the misdemeanor trial, while the checks became evidence of a change of substantial interest, the checks were not evidence of another crime, i.e., perjury.” 223 Kan. at 417.
Under the Kansas compulsory joinder statute, then, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.
Typical might be a bad check prosecution in which the defendant has given ten $100 checks to ten different merchants the same day, at a time when he has but $95 in the bank. Intent to defraud, an element of the crime under K.S.A. 21-3707, might remain in doubt if the evidence were limited to any one check. The $95 in the bank would be heavily relied on to negate intent. The prosecution, however, could eliminate any reasonable doubt by introducing evidence of the other nine in a prosecution on any one. The $95 would have little value in showing excusable mistake in the face-of $1,000 in checks. But after conviction or acquittal on the one check charged, further prosecution on the other nine would be barred. They could have been joined, and if prosecution was desired they should have been joined.
On the other hand the “same evidence” rule has some relevance even when applying the compulsory joinder statute. Where the same evidence is common to two or more distinct offenses but standing alone does not substantially prove them, its use in one prosecution will not bar a subsequent prosecution for a different offense and its use therein. That was the situation in Edgington, where the checks in the first trial merely showed income earned by defendant while a public officer. Defendant’s testimony in the divorce case was obviously not introduced in that trial. Without it there was no evidence from which the jury could have even speculated that defendant had committed the “other offense” of perjury. By way of contrast, in Momb the “other offenses” were fully proved in the first prosecution; in Claflin the confession virtually proved the “other offenses,” leaving only the existence of the fires to complete the State’s case. The object of the statute is simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged, and then prosecuting the defendant — in effect retrying him — for the same offense in a trial where it is charged.
V.
For the Kansas statute to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.
Again putting aside the effect of the void conviction for criminal injury, we find as to those elements:
(1) As pointed out in Section I above, the jury verdict acquitted petitioner of aggravated battery, the crime charged.
(2) On petitioner’s motion for discharge of the child abuse cases it was stipulated by the State that “[mjuch of the evidence which will be offered in support of the present information is the same evidence which was admitted on behalf of the prosecution” in the aggravated battery case. In answer to the trial court’s question as to whether the evidence would be the same, the prosecutor’s response was “that that would be essentially the case. There may be more or less evidence, different things to come into light.” Before this court it was conceded that all the evidence necessary to prove abuse of a child, including the fact that the victim was an infant, was placed before the jury in the aggravated battery trial. Despite a minor discrepancy in the date the mistreatment of the child began, it is apparent that the entire pattern of conduct now relied on was placed before the jury in all its essential details. We conclude that evidence of the present charges was introduced.
(3) There seems little doubt but what petitioner could have been charged with the present child abuse counts as separate counts of the aggravated battery information. Under K.S.A. 21-3107(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.” Further, under K.S.A. (now 1978 Supp.) 22-3202(1), “Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” The crimes involved here meet the criteria of both statutes for joinder. Further, applying the identity of elements test, the offenses are separate. Under the facts of this case the aggravated battery charge required the intent to injure and the actual infliction of great bodily harm, neither of which is required for child abuse. The latter, in turn, requires a victim under 18 years of age, an element not required for aggravated battery. Accordingly petitioner could have been charged with all counts in the original information.
We conclude, therefore, that all the factors required to bring the 21-3108(2)(a) barrier into play are present in this case.
VI.
We return finally to the effect of the jury verdict finding petitioner guilty of criminal injury to a person.
If we were concerned only with double jeopardy in the federal constitutional sense the result would be apparent. Under present federal law the nullification of a conviction wipes the slate clean, and the defendant may be charged and convicted of any offenses arising out of the same transaction which may be proved, regardless of whether they were or could have been charged originally. United States v. Ewell, 383 U.S. 116, 15 L.Ed.2d 627, 86 S.Ct. 773 (1966). But compare North Carolina v. Pearce, 395 U.S. 711, 721, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969) (because “the slate has been wiped clean,” a more severe sentence may be imposed on reconviction than was originally imposed) with Blackledge v. Perry, 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098 (1974) (emphasizing that due process prohibits a more severe penalty if imposed for “vindictiveness,” i.e., if there is potential retaliation for defendant’s pursuit of an appeal).
In Kansas, however, we are again governed by statute, this time subsection (4) (c) of 21-3108:
“(4) A prosecution is not barred under this section:
"(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
At first blush this would seem to imply a complete wiping clean of the slate, permitting a treatment of the first trial as a nullity. This, of course, is not so. The “implied acquittal” rule of the higher offense of Green v. United States and Benton v. Maryland, codified in subsections (1) and (5) as described in Section III of this opinion, is unaffected by (4) (c). The Judicial Council Comment observes:
“Under subsection (4) (c) it is not material whether the defendant’s conviction is set aside as a result of his collateral attack or his direct appeal. In either case he has waived his claim to second jeopardy. However, where the new trial is granted after conviction for an offense included in the crime originally charged, the subsequent prosecution is limited to the included crime for which the defendant was convicted.” Emphasis added.
Thus despite the sweeping language of (4) (c), other portions of the statute continue to operate even after a conviction is set aside, for whatever reason. In our opinion the compulsory joinder rule is one of them.
Before the present Code was adopted we had much the same situation. Former K.S.A. 62-T602, going back to 1868, provided that “[t]he granting of a new trial places the parties in the same position as if no trial had been had; the former verdict cannot be used or referred to either in the evidence or argument.” This statute was the basis of the rule that by asking for a new trial, whether by motion, by appeal, or otherwise, the defendant waived any claim of double jeopardy. The rule was first announced in State v. McCord, 8 Kan. 232 (1871), holding that a defendant charged with first degree murder and convicted of third degree manslaughter could, on a new trial, be convicted of murder. McCord was consistently followed in a long line of cases, a number of which are cited in State v. Young, 200 Kan. 20, 24, 434 P.2d 820 (1967).
Obviously this drastic version of “wiping the slate clean” fell before the new code, plus Green and Benton. The new code incorporates all jeopardy rules in one section. Our job, as we see it, is to construe the statute as a harmonious whole, reconciling any apparent conflicts if need be. Where the codification of Green and Benton in subsections (1) and (5) would conflict with the general language of subsection (4) (c), the specific language would control. Likewise where the specific language of the compulsory joinder subsection (2) (a) would conflict, it too would control.
The result is that when a conviction is set aside any new trial is limited to the crime originally charged or, if conviction was on a lesser included offense, “the included crime for which the defendant was convicted.” (Judicial Council Comment, quoted above.) To that extent the defendant, by seeking to have the conviction invalidated, may be said to have “waived” the double jeopardy claim.
On the other hand, we see no justification for saying that a defendant who successfully appeals from one conviction thereby opens the door to the institution of multiple prosecutions for other crimes which have already been proven in the first trial and which would otherwise no doubt be barred by our statute. Multiple prosecutions (here three originally, ultimately two felony counts), if permissible, would present the same potential for retaliatory vindictiveness warned against in North Carolina v. Pearce and proscribed in Blackledge v. Perry. There is no suggestion of vindictiveness here, but under Blackledge the significant factor is the potential, not the fact of vindictiveness.
Further, even one count, different from and not included in that originally charged, permits the prosecution to “mend its hold” in the light of experience in the first trial. Although spoken in the context of the collateral estoppel rule there being formulated, the Court’s words in Ashe v. Swenson are appropriate here:
“In this case the State in its brief has frankly conceded that following the petitioner’s acquittal, it treated the first trial as no more than a dry run for the second prosecution: 'No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do — he refined his presentation in light of the turn of events at the first trial.’ But this is precisely what the constitutional guarantee forbids.” 397 U.S. at 447.
Again, there is no suggestion that the State chose its present position deliberately — its plight was obviously thrust upon it. From petitioner’s point of view, however, it makes little difference whether he is to be retried from design or from chance. Either way he must run the gantlet again on charges he has already faced.
What we have been discussing applies even to a case where the defendant has been simply convicted of the offense originally charged. If he later secures a reversal or other invalidation of the conviction, the policy reasons leading to the enactment of 62-1449 and our present statute would preclude retrial on charges other than the original. In this case we have the added factor that defendant was acquitted of the original crime charged. It seems to us that this is an a fortiori case for applying the compulsory joinder rule to prevent retrial for crimes which were proved in all their elements on the first trial.
Such a result means that the prosecution, and thus the people of the state, may appear to be penalized because of a misplaced reliance on a statute presumed to be constitutional. In the search and seizure context the question is classically put in terms of whether “[t]he criminal is to go free because the constable has blundered.” Mapp v. Ohio, 367 U.S. 643, 659, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961) (quoting Justice [then Judge] Cardozo in People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 [1926].) Here, it is whether he is to go free because the prosecutor has “bungled.”
In both instances, the good faith of the State’s official is unquestioned; the weight to be accorded that factor is in question. In search and seizure cases the answer has always been that the subjective good faith of the State’s agent is not determinative. As the Supreme Court has repeatedly said:
“ ‘[G]ood faith on the part of the arresting officers is not enough.’ Henry v. United States, 361 U.S. 98, 102, 4 L.Ed.2d 134, 138, 80 S Ct 168. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 13 L.Ed.2d 142, 85 S.Ct. 223 (1964).
See also Terry v. Ohio, 392 U.S. 1, 22, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); Scott v. United States, 436 U.S. 128, 136-7, 56 L.Ed.2d 168, 98 S.Ct. 1717 (1978).
The judicial choice is whether the price to be paid for a seemingly innocent mistake is to be paid by the state or by the defendant. Our system of government tries that balance and invariably finds the balance in favor of the individual.
We cannot quarrel with the prosecutor’s initial decision to consider the entire week-long episode as but one crime, or with the decision to prove it all as one charge. Sound prosecutorial discretion frequently dictates one charge when multiple charges are legally possible. Further, separation would have encountered hazards of its own, and might well have run into allegations of duplicitousness, a variant of the problem of double jeopardy. See e.g., State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973). The fact remains that petitioner was acquitted of the crime chosen by the state for its charge, and only convicted of a crime which proved as a matter of law to be no crime at all.
We hold that trial on the present charges is barred by the provisions of K.S.A. 1978 Supp. 21-3108(2)(a). We believe this is the legislative resolution in this case of the conflict between the State’s interest in punishing offenders and the individual’s right to be tried only once for the same crime.
In view of our conclusion we need not consider petitioner’s other points. Since petitioner cannot be tried again on the present charges his present custody is, in the language of K.S.A. 60-1505(d), “wrongful.”
The writ is allowed and petitioner discharged.
. Although petitioner is free on bond, he is in “custody” for the purposes of a habeas corpus action. Hensley v. Municipal Court, 411 U.S. 345, 36 L.Ed.2d 294, 93 S.Ct. 1571 (1973); United States ex rel. Russo v. Superior Court of N. J., Etc., 483 F.2d 7 (3d Cir.) cert. denied 414 U.S. 1023 (1973); Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968).
. See e.g., United States Court of Appeals cases cited in n. 1, supra.
. McCord also relied on the predecessor of former K.S.A. 62-1301, which defined a new trial as “a re-examination of the issue.” “The issue,” the Court said, was the issue presented in the first trial. Although the question was not raised, the case gives no hint that the new trial could be on issues which were not present in the first trial.
. Waiver is, of course, but one theory used to justify the right of retrial, and is used here as convenient shorthand to cover the undeniable right, regardless of theory. See United States v. Tateo, 377 U.S. 463, 466, 12 L.Ed.2d 448, 84 S.Ct. 1587 (1964). | [
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Rees, J.:
On December 20, 1973, an intersection accident occurred in Wichita. It involved automobiles owned and driven by plaintiff and defendant Millard A. Wachter. Plaintiff brought this action by filing her petition alleging entitlement to recovery of damages from Wachter and his automobile liability insurer, defendant Emcasco Insurance Company. After a jury trial, judgments for actual and punitive damages were entered against the defendants. The defendants appeal.
On the afternoon of the day after the accident, plaintiff went to a local hospital. She was examined by an emergency room physi cian, given pain medication, instructed to see her personal physician, and released without having been admitted. She returned to her home, telephoned her physician, and made an appointment for January 2, 1974.
On December 26, 1973, a claims employee of the insurer contacted plaintiff by telephone. He advised her he represented Wachter’s insurer. The insurer’s records reflect that the claims man learned plaintiff was “having back problems and still under doctor’s care”; and no estimate had yet been made of her car repair cost. Plaintiff testified this claims man told her to send to the insurer any medical bills she had and he suggested she take her car to Scholfield Bros. Pontiac, Inc., a local automobile dealership, for a repair estimate.
After inspecting the vehicle at Scholfield, Joe Brannon, another claims employee of defendant, spoke with plaintiff by telephone on December 27 or 28, seven or eight days after the accident. The evidence of what plaintiff and Brannon said to one another is conflicting and confusing. Without reiteration, their testimony is capable of three interpretations: (1) Nothing but repair of plaintiff’s car was discussed. (2) It was then orally agreed that plaintiff released defendants from all claims of plaintiff arising out of the accident in consideration of the insurer’s promise to pay the car repair cost and plaintiff’s medical expenses incurred within one year of the accident but not to exceed $2,000. (3) Upon plaintiff’s execution of a written release it would be agreed that plaintiff released defendants from all claims in consideration of the insurer’s promise to pay the car repair cost and plaintiff’s medical expenses incurred within one year of the accident but not to exceed $2,000.
On January 11, 1974, twenty-one days after the accident, plaintiff’s car had been repaired. Brannon left with Scholfield for plaintiff’s signature a draft in the amount of the repair cost as well as a written release by plaintiff of all claims reciting the consideration to be the insurer’s promise to pay the car repair cost and reimbursement of medical expenses limited with regard to time and amount as mentioned. Plaintiff testified that when she spoke with Brannon on January 11, she was assured she would be settling her property damage claim only.
When plaintiff picked up her car from Scholfield that same day, she endorsed the draft. The written release was not presented for her signature. At some unspecified time, obviously within the next few days, Cynthia Stark, a Scholfield office employee, came across the unsigned release. In putting together paperwork to send to the insurer, Stark signed plaintiff’s name to the release. It was sent to the insurer and placed in plaintiff’s claim file.
During 1974, plaintiff sent to the insurer various bills for medical expenses incurred. Drafts were issued for payment of these bills. The day of reckoning came in December, 1974, or January, 1975. When plaintiff asked for payment of a medical expense incurred more than a year after the accident, Brannon declined to pay telling plaintiff there was no obligation because of the written release resting in the insurer’s file. In a conversation with Brannon in about January, 1975, plaintiff told him she had signed no release and she had a lawyer. She also asked for a copy of the release. Brannon declined saying that if her lawyer would contact him, the insurer would send a copy to the lawyer. The lawyer did by letter of February 21 and the insurer did with a transmittal letter dated five days later, February 26. Plaintiff’s lawyer’s letter said plaintiff had advised him she had not knowingly signed a release. The record reflects no further communication between plaintiff and the insurer and no activity by the insurer prior to service of suit papers on April 28, 1975, sixty-one days after the copy of the release was sent to plaintiff’s lawyer. Thereafter, through investigation at Scholfield, the insurer learned of Stark’s forgery.
According to the record, the pretrial conference was held on August 25, 1975. The pretrial conference order, approved by counsel for the parties and signed by the trial judge, was not filed until the first day of trial, nineteen months later. In that order, it was recited that plaintiff made two claims against the defendants.
The first claim was for compensatory damages for physical injury and property damage resulting from the automobile accident. On this first claim, plaintiff sought recovery from Wachter only. Plaintiff and Wachter each charged the other with certain violations of rules of the road.
The second claim was sort of a mixed bag claim in that a mingling of negligence, malice, fraud and outrage was alleged. This second claim was stated as follows:
“The plaintiff charges the defendants Wachter and Emcasco Insurance Company with the following negligent, malicious, fraudulent and outrageous actions by and through their agents and/or employees:
“A. Forgery of plaintiff’s signature to a release by defendants’ agents;
“B. Reliance upon forged release;
“C. Failure to make a good faith investigation of plaintiff’s allegations of forgery prior to suit;
“D. Fraud in lack of explanation of effect of Agreement and Release document which defendant Emcasco’s employee and defendant Wachter’s agent knew contained elements and consequences not orally explained to claimants with the further expectation that claimants would rely on said explanations of defendants’ employee and/or agent and execute said document;
“E. Attempted reliance on void general release;
“F. Attempting to negotiate a settlement with and/or obtain a general release from an injured person within fifteen (15) days of an occurrence causing injury with the knowledge that the injured person was under the care of a physician.”
Although it appears that by way of answer and at trial the defendants claimed reliance upon an oral release by plaintiff made during the December 27 or 28, 1973, conversation, no affirmative defenses to plaintiff’s second claim are stated in the pretrial order.
Three other observations concerning the pretrial order deserve mention. The sole issue identified for determination at trial was said to be whether employees of Scholfield were agents of plaintiff, defendants, or any of them, in the transactions concerning the repair of plaintiff’s car and written release. There was no mention of punitive damages other than as may be arguably inherent in the quoted language of the order. There was no mention of questions of law to be decided in advance of or at trial.
Trial commenced the afternoon of Monday, March 21, 1977. Upon completion of the presentation of evidence, recess was taken at 3:00 p.m. on Thursday, March 24. The jury was directed to return the next morning. The plaintiff filed requested instructions. They are not in the record except as some may be among those given by the court. The record reflects no filing by the defendants of written requested instructions. We assume the jury returned as directed. It was not until that Friday night at 7:05 p.m. that court was reconvened before the jury. The jury was instructed. Closing arguments were made. The jurors informed the court they wanted to try to complete the case that night. The jury went to dinner, reassembled, deliberated and reported its verdicts at 1:20 a.m.
The jury delivered to the court a written statement of multiple general verdicts signed by the foreman. The verdicts form recited $55,000 actual damages on plaintiff’s first claim for automobile negligence against Wachter; no actual damages on plaintiff’s second claim against either defendant; $50,000 punitive damages on plaintiff’s second claim against Wachter; and $100,000 punitive damages on plaintiff’s second claim against the insurer. No trial record was taken following closing arguments. We are told the jury was polled and discharged.
The briefs and record on appeal in this case have placed before us diffuse and kaleidoscopic issues and arguments. The arguments of the parties stand on shifting sands. Each party makes selective references to the evidence with frequent disregard of that party’s own testimony.
Wachter first contends the trial court erred in denying his post-trial motion to amend, the recognized purpose of which was to correct the written verdicts to reflect what is claimed to have been the true verdicts of the jury. Wachter does not attack the actual damages verdict against him on plaintiff’s first claim. Although within its other arguments the insurer attacks that verdict obliquely, Wachter’s individual interests were separately represented by personal counsel at trial. Under the circumstances of this case, the insurer has no standing to challenge that verdict.
The events of post-trial contacts and communications between the jury and the court, counsel for Wachter, counsel for the insurer, and a representative of the insurer need not be detailed. In support of his motion to amend, Wachter presented the affidavits of nine of the jurors and the live testimony of the other three jurors. The twelve jurors unanimously stated that their true verdicts were that plaintiff recover $55,000 actual damages against Wachter on her first claim, plaintiff recover no damages against Wachter on her second claim, plaintiff recover $50,000 actual damages against the insurer on her second claim, and plaintiff recover $100,000 punitive damages against the insurer on her second claim. The jurors agreed their verdicts were mistakenly recorded on the verdicts form.
As the motion to amend was brought before and presented to the court, it was in the nature of a request by a party, Wachter, for a verdict correction and not a change sought by one or more jurors.
Without abandoning alternative arguments, plaintiff agrees with Wachter that judgments should have been entered, not according to the verdicts form, but according to the true verdicts as established by the jurors’ affidavits and testimony.
The trial court confirmed its entry of judgments in accord with the verdicts form. Change was declined on the ground the motion to amend and the presentation of the jurors’ affidavits and testimony constituted an impermissible attempt to impeach the written jury verdicts. Understandably, the insurer supports this decision of the trial court. The requested change by way of correction would undercut the insurer’s argument that the punitive damages judgment against it on plaintiff’s second claim cannot stand in the absence of a judgment for actual damages.
We must first decide if the judgments should conform to the verdicts form or the uncontradicted post-judgment evidence. It is our decision that the judgments should conform to the latter.
In the instruction authorizing and defining punitive damages, Instruction No. 9, it was said that “[i]f . . . plaintiff proves she is entitled to actual damages, then in addition to the actual damages to which you find the plaintiff entitled, you may award plaintiff an additional amount as punitive damages.”
In Instruction No. 1A concerning the statement of plaintiff’s second claim, it was said “plaintiff seeks . . . $100,000 punitive damages.” It was said in Instruction No. 29 that “the total amount of your punitive verdict on [plaintiff’s second claim] may not exceed $100,000.” These statements became the law of this case (Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 649, 567 P.2d 856 [1977]) and, contrary to an observation of the trial court, they left no room for the jury to return punitive damages verdicts totaling $150,000.
The affidavits and testimony of the jurors disclose they were not confused, they did not misunderstand the instructions, and they did not disregard them. Cf. Holt v. Frito-Lay, Inc., 217 Kan. 56, 62, 535 P.2d 450 (1975) [confused in answering special questions]; Dicker v. Smith, 215 Kan. 212, 217, 523 P.2d 371 (1974) [misunderstood or disregarded instructions]; Hubbard v. Havlik, 213 Kan. 594, Syl. ¶ 5, 518 P.2d 352 (1974) [disregarded instructions].
The verdicts form reflects results contrary to the instructions concerning plaintiff’s second claim. By that form, there were punitive damages verdicts in the absence of the condition precedent, actual damages; there were punitive damages verdicts in a total amount exceeding the $100,000 limit imposed by the instructions.
It is presumed that a jury will follow and has followed the instructions given to it. McCarthy v. Tetyak, 184 Kan. 126, 134, 334 P.2d 379 (1959); Henderson v. Talbott, 175 Kan. 615, 624, 266 P.2d 273 (1954). Correction of the verdicts and entry of judgments as sought harmonize the instructions and the verdicts. Such harmony is in full accord with the post-trial evidence of the jury’s true verdicts.
We do not view the corrective relief sought by Wachter’s motion to amend as an impermissible attempt to impeach the jury’s verdicts. The thrust was not to examine the jury’s mental processes; it was to effect an accurate report of the jury’s true verdicts by correction of claimed error. See K.S.A. 60-260(o); K.S.A. 60-441; Woodworkers Tool Works v. Byrne, 191 F.2d 667, 676 (9th Cir. 1951); 11 Wright & Miller, Federal Practice and Procedure, Civil § 2854, pp. 152-153, n. 53; 18 A.L.R.3d 1132, § § 3, 4; 76 Am.Jur.2d, Trial § 1226, pp. 179-180.
We are persuaded by what we believe to be the better reasoning reflected by the decisions representing the so-called greater weight of authority. Further, we find that K.S.A. 60-260(a) and K.S.A. 60-441 afford support for and do not negate this conclusion.
We are not persuaded by the insurer’s argument that finality of verdicts and judgments forbids correction of clerical error in this case. No judgment is final until the time for filing and determination of post-judgment motions and appeals has expired. Wachter’s motion to amend was timely filed under K.S.A. 60-259(f).
We hold Wachter’s motion to amend should have been sustained and judgments should have been entered in accord with his request. This resolves Wachter’s appeal. It eliminates the foundation of the insurer’s argument that the punitive damages judgment against it cannot stand in the absence of an actual damages judgment and obviates discussion of plaintiff’s related counter argument. Our further consideration of this case is premised on the existence of a $50,000 actual damages judgment and a $100,000 punitive damages judgment against the insurer on plaintiff’s second claim.
There is intermingling of questions raised on appeal by the insurer. Some are not directly expressed in the issues stated in its brief. We will endeavor to address the remaining questions as we understand them after first speaking to questions of agency and interpretation of K.S.A. 60-2801 et seq.
Substantial argument is made concerning whether the actions of Stark and other employees of Scholfield are imputable to the insurer, it being claimed by plaintiff that at all material times they were acting as agents of the insurer. Most directly involved is the conduct of Stark who, without having presented the document to plaintiff, signed plaintiff’s name to the written release and thereafter caused it to be returned to the insurer.
We conclude the question of agency was one for the jury, not one determinable as a matter of law. What constitutes agency and whether there is competent evidence reasonably tending to prove the relationship is a question of law. It is our province to determine if the record reveals evidence on which a finding of agency could be based, not to decide whether, under proper instructions relating to the law of principal and agent, it existed as a matter of fact. Thurman v. Cundiff, 2 Kan. App. 2d 406, 411-412, 580 P.2d 893 (1978).
The only question of fact to be decided according to the pretrial order was whether Scholfield’s employees acted as agents of one or both defendants, or of plaintiff, or of none of them. The jury instructions did not include an instruction defining agency, such as PIK Civ. 2d 7.01 (1978). When the trial court’s proposed instructions were considered, no request was made for an instruction defining agency and no objection to the failure to give such an instruction has been lodged in the trial court, at trial or post-trial, or before us.
Instruction No. 23 given the jury is an appropriate adaptation of PIK Civ. 2d 7.06 (1978). It informed the jury that plaintiff claimed Scholfield’s employees were agents of the defendants and acted within the scope of their agency; and that if the jury found Scholfield’s employees were agents of the defendants acting within the scope of their authority, then their conduct was the conduct of defendants. This instruction called upon the jury to make two findings, i.e., were Scholfield’s employees agents of defendants and, if so, did they act within the scope of their authority.
Instruction No. 24 given to the jury is an appropriate adaptation of PIK Civ. 2d 7.04 (1978). It informed the jury of the law to be applied in finding whether Scholfield’s employees were acting within the scope of their authority as agents of defendants.
Under all the facts and circumstances reflected by the record, including some we have not summarized, we find ourselves unable to find as a matter of law that the insurer should be exonerated from the conduct of Stark insofar as her conduct may have been imputed to the insurer by the jury.
Considerable argument has been made at trial and on appeal concerning construction and application of K.S.A. 60-2801 and 60-2802. These two statutory sections were a 1972 legislative enactment reportedly made in response to complaints of so-called “hot boxing” and “rush releases.” 41 J.B.A.K. 7,60-61 (1972). The statutes read as follows:
60-2801. “(a) Within fifteen (15) days of the date of the occurrence causing injury to any person, who either is under the care of a person licensed to practice the healing arts, or is confined to a hospital or sanitarium as a patient, no person whose interest is or may become adverse to the injured person shall:
“(1) Negotiate or attempt to negotiate a settlement with the injured patient; or
“(2) obtain or attempt to obtain a general release of liability from the injured patient.
“(b) Any settlement agreement entered into, any general release of liability or any written statement made by any person who is under the care of a person licensed to practice the healing arts or is confined in a hospital or sanitarium after he or she incurs a personal injury, which is not obtained in accordance with the provisions of K.S.A. 60-2802, may be disavowed by the injured person within fifteen (15) days after discharge from the care of any person licensed to practice the healing arts or after release from the hospital or sanitarium, whichever occurs first, and such statement, release or settlement shall not be received in evidence in any court action relating to the injury.”
60-2802. “The provisions of this act relating to settlements, releases and statements obtained from a patient confined in a hospital or sanitarium or being treated by a person licensed to practice the healing arts, shall not apply, if such patient is released from a hospital or sanitarium or released by a person licensed to practice the healing arts, within fifteen (15) days of the date of the occurrence causing injury, or if at least five (5) days prior to obtaining the settlement, release or statement, the injured party has signed in writing his or her willingness that a settlement, release or statement be given.”
One of the “negligent, malicious, fraudulent and outrageous actions” alleged by plaintiff in her second claim was the attempt to negotiate a settlement and release within fifteen days after the accident while plaintiff was under doctor’s care. The jury was so instructed. Additionally and over defense objection, verbatim quotation of K.S.A. 60-2801(o) was given as a jury instruction. Plaintiff argues violation of K.S.A. 60-2801(a), standing alone, gives rise to a cause of action. The insurer says K.S.A. 60-2801 and 60-2802 must be read together and in their entirety and that there is but one remedy afforded here, that is, disavowal as provided by K.S.A. 60-2801(b), of any agreed settlement or release obtained. We believe both parties are mistaken.
In determining the legislative intent behind a particular statute, courts are not limited to a mere consideration of the language used, but look to the background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under various constructions suggested. Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 200, 580 P.2d 867 (1978). In order to ascertain legislative intent, courts are not permitted to consider only a certain part of an act but are required to consider and construe together all parts therein in pari materia. When interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature. Brown v. Keill, 224 Kan. 195, Syl. ¶ 4, 200.
K.S.A. 60-2801 and 60-2802 had their origin as a House bill, H.B. 2105. The version of H.B. 2105 reported out by the House Judiciary Committee was virtually identical to a 1971 New Mexico statute, N.M. Stat. Ann. § 41-1-1. See Mitschelen v. State Farm Mut. Auto. Ins. Co., 89 N.M. 586, 555 P.2d 707 (1976). The House-passed version of H.B. 2105, as does the New Mexico statute, contained a provision making any settlement or release void unless acknowledged by a notary public. The Senate Judiciary Committee deleted this provision and the statute emerged after further amendment by the Senate Judiciary Committee and the entire Senate on third reading.
Other states have enacted similar statutes but have expressly provided settlements or releases obtained in contravention thereof to be void or voidable. Conn. Gen. Stat. Ann. § 52-572a (West) [voidable]; Md. Ann. Code art. 79, § 11 [voidable]; N. D. Cent. Code § 9-08-08 [voidable]; Mass. Gen. Laws Ann. ch. 271, § 44 (West) [null and void]; Me. Rev. Stat. tit. 17, § 3964 (1978-1979 Supp.) [null and void]; R. I. Gen. Laws § 9-19-12 [null and void]. Other statutes, similar to those of Kansas and New Mexico, do not expressly provide that statutorily proscribed settlements and releases are void or voidable, but provide for disavowal. Vt. Stat. Ann. tit. 12, § 1076 [disavow within three years]; Idaho Code § 29-113 [disavow within one year]. We have found no New Mexico, Vermont or Idaho case law to aid us in interpretation of K.S.A. 60-2801 and 60-2802. The parties have provided none.
The literal import of K.S.A. 60-2801(a) is a flat prohibition against negotiating or attempting to negotiate a settlement or release with an injured person within fifteen days of the injury causing occurrence if the injured person is hospitalized or under doctor’s care. K.S.A. 60-2801(6) provides as an additional part of the legislative scheme that any settlement agreement or release obtained from an injured person while hospitalized or under doctor’s care, whether or not obtained within fifteen days of the injury causing occurrence, may be disavowed within fifteen days of the injured person’s discharge from hospitalization or doctor’s care. K.S.A. 60-2802 then provides that 60-2801 shall not apply if an injured person is discharged from hospitalization or doctor’s care within fifteen days of the injury causing occurrence or if five days prior to obtaining the settlement agreement or release the injured party has signified in writing a willingness to negotiate.
Consideration of K.S.A. 60-2801 and 60-2802 together and as a whole leads us to conclude that where the facts render 60-2801(6) and 60-2802 inapplicable, a settlement or release obtained under circumstances in contravention of 60-2801(a) is void; no separate cause of action was intended for a violation of K.S.A. 60-2801(o). We believe this statutory construction is in accord with and effects the legislative purpose as we understand it to have been, that is, to afford a degree of protection from overreaching. Other construction and interpretation would lead to results we believe inconsistent with if not contrary to such purpose. We find it logical that a settlement or release obtained from an injured person, hospitalized or under doctor’s care, within fifteen days of the injury causing occurrence (K.S.A. 60-2801[a]) should be void in view of K.S.A. 60-2801(6), which renders a settlement or release voidable by disavowal if it was obtained from an injured person, hospitalized or under doctor’s care, after the first fifteen days following the injury causing occurrence.
The insurer’s first specific argument is that the forgery of plaintiff’s signature to the written release was not the act of its agent. The writing of plaintiff’s name upon the written release was admitted by Stark who testified concerning her actions. The release was left by Brannon with Scholfield for the purpose of submission to plaintiff for her signature and for subsequent return by Scholfield to the insurer. For whose business purpose this task was accepted by Scholfield, acting through its employees, strikes us as clearly a jury question likely answered adversely to the insurer’s position.
The insurer’s present arguments addressed to the elements of actual and apparent agency were not made to the trial court. The insurer orally requested the trial court give a “mirror image” instruction with regard to Instruction No. 23. There was no written requested instruction filed. See K.S.A. 60-251. Had a “mirror image” instruction been given, a finding in accord with it would not have disabled the jury from finding the insurer to also have been a principal. The insurer clearly and expressly disclaims any contention that plaintiff may have been bound by Stark’s signing of the release. The only record objection to either Instruction No. 23 or Instruction No. 24 was that the question of agency was not a submissible issue and we have noted our decision to the contrary.
It is next asserted that the insurer did not knowingly rely upon the forged release. Without question Brannon relied upon the forged release when in about January, 1975, he informed plaintiff that none of her medical expenses incurred more than a year after the accident date would be paid by the insurer. That Brannon was not personally knowledgeable of the falsity of the signature to the release misses the point. The purported signature of plaintiff to the release was a forgery; Brannon relied on the forged release. The testimony of Brannon indisputedly discloses that the insurer made no inquiry concerning the authenticity of the release signature until April 29, 1975, the day after service of suit papers. Whether the insurer was chargeable with Stark’s knowledge of the forgery was dependent upon determination of the agency question.
It is argued that plaintiff’s second claim for relief sounded wholly in fraud. We do not take it upon ourselves to say in what the claim of “negligent, malicious, fraudulent and outrageous actions” sounded. The record reveals no effort at pretrial or trial to define or clarify the claim. We find it rather late now.
Assuming plaintiff’s second claim to be a claim of fraud, the insurer argues with questionable logic that violation of K.S.A. 60-2801(«) does not amount to fraud for the reason that such a violation does not give rise to an actionable claim for relief, a cause of action. We have said the consequence of violation of the statute is to render an obtained settlement or release void. Under the pretrial order and unchallenged jury instruction quoting the claim verbatim, the alleged violation of the statute, standing alone, is not asserted to have been the fraudulent conduct; it is but one of the multiple particular acts said by plaintiff to constitute actionable wrongful conduct, plaintiff’s second claim.
It is further said by the insurer that there was no fraud, thus no entitlement to recover on plaintiff’s second claim, because there is missing the element of reliance. Specifically, it is said there was no reliance because plaintiff did not sign, let alone see, the written release. We are unpersuaded by the insurer’s argument. It pleaded release as an affirmative defense; at the close of all the evidence, it argued there was an oral settlement agreement (when such an agreement was made escapes us); and it made no objection to Instruction No. 11 that defined actionable fraud or Instruction No. 10 that in part told the jury concealment or nondisclosure of material facts may constitute fraud. This argument of the insurer is inconsistent with its claim there was a release, necessarily involving action in reliance on representations or promises of the insurer, and in our view the absence of objection to the mentioned jury instructions made it the law of this case that it was for the jury to decide whether there was fraud. Iseman v. Kansas Gas & Electric Co., 222 Kan. at 649; State v. Collins, 217 Kan. 418, 419, 536 P.2d 1382 (1975).
Not having done so through its designated issues on appeal or in its principal brief, the insurer, through a reply brief, undertakes to demonstrate the inapplicability of the tort of outrage to the facts of this case. Although we might hold such argument tardily made, we find that it cannot now be entertained because not only was no objection made to Instruction No. 19, which defined outrage, but also the issue was not raised in the trial court. Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, Syl. ¶ 1, 284, 593 P.2d 1009 (1979).
We conclude the insurer’s divide and conquer attack upon plaintiff’s second claim, as made, must fail. Whether plaintiff’s right to recover upon her second claim would be otherwise assailable, we neither speculate nor decide.
Relying upon Ware v. State Farm Mutual Automobile Ins. Co., 181 Kan. 291, 311 P.2d 316 (1957), and similar case authority, the insurer argues that even though plaintiff might be found entitled to recover on one or the other of her two claims, she cannot recover on both. As alleged and prosecuted, the proceedings here involved did not require an election of remedies. Plaintiff’s first claim was for physical injury and property damage arising out of the automobile accident. Her second claim was for damages resulting from the activities and conduct of the insurer’s employees, as well as its other purported agents, after the accident and in regard to negotiations for settlement of plaintiff’s accident claims. Plaintiff denied the existence of a settlement agreement. Had she acknowledged the existence of a settlement agreement but claimed her assent thereto was wrongfully obtained, we would have a Ware situation. The principle of Ware is not applicable.
The trial court gave thirty-seven instructions. The insurer argues to us that seventeen of the instructions were erroneously given but disregards the fact ten of these were not objected to at trial. Review of the ten previously unchallenged instructions is limited to whether they are clearly erroneous. K.S.A. 60-251(b); Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, Syl. ¶ 2, 166, 592 P.2d 103 (1979). We find none are clearly erroneous.
An erroneous jury instruction which does not prejudice the substantial rights of the defendant does not afford a sound basis for reversal of a judgment. Patterson v. Burt, 213 Kan. 463, 467, 516 P.2d 975 (1973).
“The determination whether the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including a consideration of all the evidence. No precise formula can be drawn.” Curby v. Ulysses Irrigation Pipe Co., Inc., 204 Kan. 456, 462, 464 P.2d 245 (1970).
Instruction No. 2G advised that a forged release or a statutorily prohibited release is void. The insurer’s trial objection was that it never contended the written release was anything but void; that inclusion of reference to a statutorily prohibited release misstates the law of K.S.A. 60-2801 and 60-2802. We have discussed the statutes. Although the jury might have been better instructed if counsel and the trial court had had the benefit of appellate statutory construction, we do not find the instruction to be a legal misstatement or prejudicial to the insurer’s rights.
Instruction 2H addressed itself to the meaning of the words “under the care of a physician authorized to practice the healing arts” and read as follows:
“The words ‘under the care of a physician authorized to practice the healing arts’ are not words of art but have the meaning understood by man in everyday usage of the words.
“It would include a person who is taking medication prescribed by a physician, following instructions given by a physician or awaiting an appointment with a physician.”
Objection was to only the second paragraph of the instruction and, in all honesty, we find the objection made at trial incomprehensible. It appears in the record as follows:
“[W]ith respect to the second paragraph we don’t believe that that correctly states the law that there is no authorization. We’re suggesting that simply anybody that takes medication following instructions or who is waiting appointment is a person under the care of a physician authorized to practice the healing arts.”
The insurer proposed no instruction defining the statutory phrase. Perhaps none is needed or should be given. Its argument on appeal, that the second paragraph specifically fits plaintiff’s situation took away from the jury a factual question properly determinable by it, was not made to the trial court.
Instruction No. 9 advised the jury of the grounds for and measure of punitive damages. The complaints at trial were that the word “wanton” should have been deleted and PIK Civ. 2d 9.44 (1978) should have been given. We find no material variance from PIK Civ. 2d 9.44 (1978) and no error, at least not reversible error, in inclusion of the word “wanton.” The insurer’s appellate criticism is bottomed on its argument that the case should not have gone to the jury so as to allow recovery for fraud and that plaintiff’s second claim sounded wholly in fraud. In light of our previously expressed views, we are unable to find the urged reversible error.
Instruction No. 22, as we have said, was a verbatim recitation of K.S.A. 60-2801(o). It necessarily is read in conjunction with Instruction No. 2G. As so read, the jury was effectively instructed that a release obtained in contravention of K.S.A. 60-2801(a) is void, a conclusion we have reached, and the giving of the instruction was not erroneous. Henceforth, the subject may be substantially better dealt with.
Instructions 23 and 24 were and are challenged on the premise that Scholfield’s employees were not the insurer’s agents, a question we have determined to have been for the jury.
Instruction No. 26 was a verbatim quotation of K.S.A. 40-275, dealing with advance or partial payments, together with the statement that the court would make any statutorily required adjustment. We see no reason for the instruction, but with its inclusion of the added statement concerning adjustment by the court, it clearly was not prejudicial.
The insurer has failed to satisfy its burden to establish to our satisfaction the existence of reversible error in the instructions. We find the record discloses competent evidence, much of which is not summarized in this opinion, to support an award of substantial, not nominal, actual damages as a result of the insured’s actions complained of in plaintiff’s second claim. We also find in the summarized and unsummarized evidence, evidence of sufficient quality and quantity to support an award of punitive damages on that claim.
There is complaint made that the jury verdicts were the product of jury passion and prejudice. Eight circumstances relating to the trial proceedings are called to our attention and referred to as illustrative of the pressures under which the jury was forced to labor. Two of these are a rehash of issues of law with which we have already dealt. The other six are not shown to be causally related to the verdicts except as we might speculate, which we decline to do.
The remaining passion and prejudice argument is founded solely upon the size of the verdicts, separately and in total. Neither in the trial court nor before us has the insurer sought an order of remittitur. Following trial, the insurer asked for relief from the judgments but expressed neither a ground for such relief nor a statement of the nature of relief sought. We have said:
“Where the charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely upon the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.” George v. Bolen-Williams, Realtors, 2 Kan. App. 2d 385, 394, 580 P.2d 1357 (1978).
The verdicts were sizeable but our collective conscience is not shocked.
The judgment against Wachter for actual damages in the amount of $55,000 is affirmed. The judgment against defendant Wachter for punitive damages in the amount of $50,000 is reversed and vacated. The judgment against Emcasco Insurance Company for punitive damages in the amount of $100,000 is affirmed. The case is remanded with directions to enter judgment against defendant Emcasco Insurance Company for actual damages in the amount of $50,000. | [
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Parks, J.:
Plaintiff, Southgate State Bank and Trust Company, is insured under two liability insurance bonds. Primary coverage by Kansas Bankers Surety Company insures plaintiff up to $25,000, while defendant, United Pacific Insurance Company, insures plaintiff against liability in excess of $25,000 but less than $1,675,000. Except for the deductibles and limits of coverage, the language of relevant portions of both bonds is identical. Reasonable legal expenses may be incurred in defense actions under the provisions of both policies.
The present controversy arose when a $407,000 third-party complaint was filed against the bank. Both insurers were notified of the suit. The primary insurer agreed to defend the plaintiff but the defendant excess insurer refused. Apparently fearing an excessive judgment, the plaintiff bank retained private counsel to assist the primary insurer in its defense of the suit. The claim against the bank was settled for $12,500; subsequently the bank initiated this action seeking to recover attorney fees expended both in defending the third-party complaint and in bringing the recovery action itself. Although the Johnson County district court entered summary judgment for the plaintiff bank, it denied plaintiff’s prayer for costs and fees in the recovery action. Defendant appeals and plaintiff cross-appeals.
One purpose of liability insurance is to provide the insured with an adequate defense against claims under the policy and to protect the insured from the expenses and costs of such litigation. The duty of an insurance company to defend an insured pursuant to its policy contract requires the utmost good faith on the company’s part. Rules governing the duty to defend vary according to the language of the policies and according to whether the company is the sole, primary, or the secondary insurer.
Whether the carrier be the sole or the primary insurer, the duty to defend rests primarily on the possibility that coverage exists. This possibility may be remote, but if it exists the company owes the insured a defense. The possibility of coverage must be determined by a good-faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973). However, where two insurance companies have issued general liability insurance policies to the same insured and each is obligated to defend, if one company affords a defense, the insured is not damaged because of the failure of the other to defend. Farmers Elevator Mut. Ins. Co. v. American Mut. Lia. Ins. Co., 185 Neb. 4, Syl. ¶ 8, 173 N.W.2d 378 (1969).
The present case does not involve a situation in which a single insurance carrier, obligated to defend an action on a claim covered by its policy, did not act in good faith in refusing to defend an action against its insured. We find to the contrary that plaintiff was not left without a defense or coverage, but was adequately defended by Kansas Bankers under its obligation to do so. As regards Kansas Bankers, its liability was fixed with respect to its obligation to plaintiff. In respect to defendant, plaintiff bank could only look to defendant for any liability in excess of the policy limits of Kansas Bankers’ policy. Hence the bank proceeded on its own rather than under the provisions of the secondary bond when it elected to independently retain additional counsel. Since plaintiff was adequately protected under the Kansas Bankers’ policy, the refusal by defendant to defend plaintiff did not enhance plaintiff’s liability or exposure to liability. Donahue Construction Co. v. Transport Indemnity Co., 86 Cal. Rptr. 632, 7 Cal. App. 3d 291 (1970).
Accordingly, we hold that it was error for the trial court to grant plaintiff’s motion for summary judgment, and to award plaintiff attorney fees incurred in defending the third-party complaint. We further hold that the trial court was correct in denying plaintiff attorney fees in the present action.
Judgment is reversed insofar as the appeal and affirmed insofar as the cross-appeal. | [
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Foth, C.J.:
Defendants Research and Data, Inc., and its presi dent Leland W. Atteberry are in the business of collecting bad checks on behalf of merchants who engage their services. They endeavor to collect the face amount of the checks, plus a fee of $5.00 per check and ten percent of the face amount of those over $20.00. They do this in large part by writing letters threatening the makers with prosecution if the checks and fees are not paid. Upon collection defendants retain the fees as their compensation, remitting the face amount of the checks to the merchants.
In the summer of 1974 plaintiff wrote a number of insufficient fund checks to Topeka merchants. After receiving a series of defendants’ letters plaintiff paid some of his bad checks and the corresponding fees to defendants, and then brought this action. His petition was originally framed as a class action in three counts: blackmail, outrage, and unjust enrichment. It sought punitive as well as actual damages. At a discovery conference, however, he dropped both tort claims, leaving only the claim of unjust enrichment as to the fees paid to and retained by defendants. On that claim the trial court rendered summary judgment for defendants, and plaintiff appeals.
The trial court’s decision was based in large part on a finding that plaintiff had expressly contracted to pay the fees in question. The correctness of this finding is plaintiff’s first point on appeal, and in our view is the controlling issue.
The trial court found as a matter of fact that “[i]n each of such merchants’ business establishments] there was posted in a conspicuous place a sign indicating that a $5.00 charge would be made on all ‘returned checks’.” It concluded as a matter of law:
“Under the facts of this case, the merchants posted their sign announcing to the public that a charge of $5.00 would be made on returned checks. Plaintiff was not compelled to do business with these merchants nor was he compelled to pay by check. Further, and most importantly, he was not compelled to give the merchant, an unlawful, insufficient fund check. By doing so the Court finds that he accepted the merchants’ terms as clearly stated in their posted notices thereby contracting to pay the charge set out.”
Plaintiff challenges the finding and conclusion on the ground that there is a question of fact as to whether he agreed to the charges which cannot properly be resolved on summary judgment. He points to the absence of proof that he actually saw the signs and thereby assented to their terms.
The finding was based on a series of uncontradicted affidavits which had been duly served on plaintiff’s counsel and filed in the case. These affidavits, made by the defendant Atteberry and the managers of the various businesses which had accepted plaintiff’s checks, stated that all the signs were so placed that a person cashing a check or giving a check for merchandise “could not help but see the sign.” These assertions, made under oath, raised a presumption of fact that plaintiff saw the signs when he presented his checks. To overcome the logical inference to be drawn from the affidavits and thus raise an issue of material fact so as to preclude summary judgment plaintiff was required to present some rebutting evidence, such as a statement under oath that he did not see the signs. He could not, as he did, remain silent or rely on his pleadings. Stovall v. Harms, 214 Kan. 835, 838, 522 P.2d 353 (1974); Ebert v. Mussett, 214 Kan. 62, Syl. ¶ 3, 519 P.2d 687 (1974); Meyer, Executor v. Benelli, 197 Kan. 98, Syl. ¶ 1, 415 P.2d 415 (1966).
On the basis of defendants’ uncontradicted affidavits the trial court was fully justified in finding that plaintiff, when giving the checks, agreed to the merchants’ conditions and agreed to pay the specified fees upon dishonor.
In his second point plaintiff argues that he should recover the fees because they were paid under the coercion of defendants’ threats to prosecute.
He offers no authority for the proposition that a debtor who pays a debt legally due can recover the amount paid because the payment was coerced. The authorities he does cite deal with the coerced settlement of an unliquidated or disputed claim; e.g., Thompson v. Niggley, 53 Kan. 664, 35 Pac. 290 (1894), where a mortgage was given under coercion to settle a tort claim; Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807 (1908), where a father gave a mortgage to settle an embezzlement claim against his son. In those cases it was held that the coercive effect of threats of prosecution, resulting in the creation of the obligation, was a good defense and made the obligation unenforceable. As the trial court noted, some doubt is cast on the proposition that the threat of prosecution is per se coercive by the decision in Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 803 (1928). We need not decide that question, however, and decide this case on the assumption that defendants’ letters were coercive.
As previously discussed, the obligation here was already incurred and was liquidated before the coercion was applied; i.e., plaintiff had expressly contracted to pay the fees. Hence our only question is whether the threats voided the contract and required defendants to repay the amounts paid to satisfy it. We find no Kansas cases directly in point, but the general rule is set forth in the Restatement of Contracts § 495 (1932):
“Where the duress of one party induces another to enter into a transaction, the nature of which he knows or has reason to know, and which he was under no duty to enter into, the transaction is voidable against the former and all who stand in no better position, subject to the qualifications stated in § 499.
“Comment:
“a. Duress inducing a person to perform his exact legal duty does not give him power to avoid his act; but where a claim is unliquidated or the subject of an honest dispute, even a reasonable settlement induced by duress is voidable.
“Illustrations:
“1. A has a claim against B for $100. The debt is liquidated and undisputed. By duress A coerces B to pay him the debt. The transaction cannot be avoided.” (Emphasis added.)
Williston concurs:
“One who had misappropriated money or property, and who was, therefore, under a civil as well as criminal liability, made restitution. Under such circumstances, even though there was unquestionable duress, the debtor if compelled to pay the exact amount of a liquidated debt, cannot be allowed to recover the payment because in making the payment he has done no more than he was legally bound to do.
“The situation is legally different where the debtor is compelled to transfer property in satisfaction of his civil liability, or to pay a fixed sum to satisfy a claim of uncertain amount, from what it is where the payment exacted is the exact amount of a liquidated debt, since in the former case the parties are attempting an accord and satisfaction, not exactly fulfilling an existing obligation.” 13 Williston on Contracts § 1615 (3d ed. 1970).
See also 70 C.J.S., Payment § 146; 66 Am. Jur. 2d, Restitution and Implied Contracts § 98.
The Kansas cases cited above apply that part of the rule which voids obligations incurred under coercion where the claim is unliquidated or disputed. The other side of the rule is applicable here; coercion affords no grounds for recovering payments made to satisfy a liquidated obligation or, as Williston puts it, “exactly fulfilling an existing obligation.”
The reason for such a rule rests in the time honored doctrine of avoiding a multiplicity of suits. If in this case it were held that plaintiff could recover the fees paid because of the coercion, the result would be an unpaid contractual obligation. In a lawsuit against him to collect the fees he would have no defense. Economy of the judicial system forbids such a result.
Plaintiff also contends that, because the underlying instrument was a negotiable instrument, he could in no event be liable for more than the face amount of the checks. The argument ignores the express contract to pay fees in case of dishonor, as discussed above.
It also ignores the import of K.S.A. 21-3707, our bad check law, which expressly authorizes the holder to write the maker of a bad check demanding the face amount plus a service charge of not more than $3.00. Failure of the maker to pay both the check and service charge raises a presumption that the check was given with intent to defraud. Two things may be said about the statute. First, it is a clear legislative recognition of a holder’s right to recover more than the face amount of the check, even in the absence of a specific agreement — thus demolishing plaintiff’s argument that the face amount is the maximum recoverable. Second, that statute is part of the criminal code, and contains nothing which by its terms or by implication limits the right of the parties to enter into a specific contract such as we have here. Cf. State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973).
The trial court recognized that the fee contracted for might in some cases be so large as to be unconscionable, but found no element of unconscionability here. We agree. The fees charged seem quite modest just for the letter writing involved, not to mention the unexpected bookkeeping and inconvenience of having what was intended as a cash transaction involuntarily turned into the extension of credit. The fees were not even arguably unconscionable. Cf. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757-60, 549 P.2d 903 (1976).
In summary, we hold that the trial court correctly found an express contract to pay the challenged fees, and that there were no factors which would relieve plaintiff of his obligation under the contract. Hence defendants were not unjustly enriched when plaintiff fulfilled that obligation, and the trial court properly rendered summary judgment for defendants. In view of our holding on those issues, we do not reach the question of whether plaintiff had unclean hands. Neither, of course, do we pass on the legality or propriety of defendants’ conduct or their possible liability therefor in tort.
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Parks, J.:
Thelma Spackman, defendant wife, appeals from a trial court order which (1) awarded Wayne Spackman, plaintiff husband, one-half of her replacement housing supplemental payment, (2) retroactively relieved plaintiff of the duty to pay two months past due child support, (3) retroactively credited plaintiff with payment of five months unpaid alimony by deducting $2,500 from plaintiff’s alleged share of the replacement housing supplemental payment, and (4) ordered that defendant either pay the $2,575 balance of plaintiff’s alleged share of the housing supplemental payment directly to him, or that defendant keep that amount and credit plaintiff to that extent against future alimony payments. The same order found plaintiff not guilty of indirect contempt, a ruling which is not now being contested.
When the parties were divorced on January 5, 1976, their family homestead was included in the path of a planned urban renewal project. Although the divorce decree set aside the homestead to defendant wife, it also contained an agreed formula for dividing the proceeds from the sale of the property to the government. For example, if the price were to exceed $27,000, plain tiff was to receive an amount equal to one-half the difference between $27,000 and the sale or condemnation price. A subsequent purchase order executed by Wichita city officials listed the purchase price at $33,750. After prorated taxes and a mortgage owed Wichita Federal Savings and Loan Association were deducted, defendant received $32,325.08. These same figures were confirmed by a closing statement signed by the parties on October 21,1977. Defendant paid the plaintiff $1750.08 as his share of the proceeds over $27,000, less obligations to be paid by him, including $200 for unpaid child support.
Following negotiations for the sale of the homestead, defendant was approved for a $9,750 supplemental payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Receipt of the relocation funds was contingent upon her spending $43,500 for replacement housing within one year of the date of the government’s taking possession of the homestead.
Defendant contends that the replacement housing payment is not a part of the sale or condemnation price of the residence and is not subject to a division between the parties under their divorce decree. We agree.
A reading of the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C.A. § 4601, et seq., makes it abundantly clear that its major purpose is to assure that one who is displaced by a federally assisted program does not suffer a loss if that loss can be reasonably compensated by a money payment. Not only is a displaced person guaranteed the fair market value of his property, if taken, but he is assured of a payment in excess of that amount if that is necessary to acquire a “comparable replacement dwelling.” Louisiana Dept. of Highways v. Coleman, 444 F. Supp. 151 (M.D. La. 1978).
The additional payment authorized by 42 U.S.C.A. § 4623 is made only to a displaced person who purchases and occupies a replacement dwelling which is decent, safe and sanitary not later than one year from the date he receives from the federal agency final payment on all costs of the acquired dwelling. Thus the purpose of federally authorized payments is to supplement traditional eminent domain compensation, not to create an additional element of full compensation. Division of Admin., Etc. v. Grant Motor Co., 345 So.2d 843, 846 (Fla. App. 1977).
Defendant next argues that the trial court lacked jurisdiction to retroactively terminate child support payments.
The divorce decree provided for the couple’s two minor children as follows: plaintiff was to pay $200 a month until the older child reached his 18th birthday; the payments would then automatically be reduced to $100 a month and terminate upon the younger child’s 18th birthday. Additionally, plaintiff agreed to provide some financial assistance for the children’s church missions and college tuition, provided each child obtained a summer job between college semesters.
At oral argument it was learned that the younger child became 18 in October 1977; therefore, the duty to pay child support ceased after the October 5,1977, payment. Plaintiff admits that he stopped making the payments in September 1977 and that he also failed to pay in October. His justification for withholding the money was that the child was out of the state attending school and he was paying her tuition and rent.
Child support payments may be modified at any time circumstances render such a change proper, but the modification operates prospectively only. Salem v. Salem, 214 Kan. 828, Syl. ¶ 4, 522 P.2d 336 (1974). Insofar as the September and October 1977 payments are concerned, the trial court erred when it retroactively relieved plaintiff from judgments which accrued when he failed to pay child support previously ordered by the court.
In view of our holding that plaintiff is not entitled to one-half of the replacement housing supplemental payment, we find that the trial court erred in giving the credits to plaintiff premised upon a share of that money. Accordingly, plaintiff owes the defendant for all alimony erroneously credited by the trial court as paid.
The judgment of the trial court is affirmed insofar as the finding that plaintiff is not guilty of indirect contempt. It is reversed insofar as the court’s (a) awarding one-half of the replacement housing supplemental payment to plaintiff; (b) retroactively approving plaintiff’s termination of the child support payments and (c) erroneously crediting plaintiff with payment of what is now past due alimony. | [
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Swinehart, J.:
The defendant husband appeals from a decision requiring him to continue the payment of a previously entered alimony award where his former wife, subsequent to her divorce from the defendant, married another in the State of Colorado and then invalidated that marriage in the same state, alleging that she lacked capacity to enter into the marriage contract because she lacked mental capacity to consent to the marriage.
Plaintiff and defendant were married in Kansas on June 4, 1968, and at the time of the filing of the divorce petition (January 26, 1973) were residents of Pratt County. The parties were divorced on July 17, 1973, and the decree of divorce was filed on August 1, 1973. The decree, in addition to the usual orders as provided for in K.S.A. 60-1610, specifically disapproved that part of the property settlement agreement executed by the parties which provided for the payment of alimony by the defendant to the plaintiff (as set forth in paragraph 6 of said agreement) and in lieu thereof ordered as follows:
“[I]t is found and ordered that for the purpose of offsetting the property of the parties award[ed] to the husband by the Agreement, the husband is ordered to pay to the wife the sum of Eighteen Thousand Dollars ($18,000.00) as follows:
$600.00 per month for twelve (12) months;
$500.00 per month for the next twelve (12) months;
$200.00 per month for the next twenty-four (24) months.
As long as such payments are made as they become due, they will not bear interest; any payments in default to draw interest at eight percent (8%). In addition to such award, the Defendant is ordered to pay alimony to the Plaintiff in the sum of One Hundred Dollars ($100.00) per month beginning forty-eight (48) months from the payment of the first $600.00 monthly payment ordered above, and continuing until such time as Plaintiff remarries. In case Plaintiff remarries prior to the time these alimony payments commence, she will not be entitled to receive any of the alimony award. The Defendant shall be entitled to credit for payments already made on the Property Settlement Agreement through July, 1973, in the aggregate sum of $3,600.00.” Emphasis added.
The plaintiff subsequently married Randall Lee Coppernoll in the State of Colorado on July 13, 1976, and at a later date petitioned the Colorado court for a declaration of invalidity of said marriage. The petition was tried to the court in Colorado on October 29, 1976, and the trial court made the following findings and order:
“1. The Court has jurisdiction over the parties and subject matter of this action.
“2. The marriage between the parties was entered into on July 13, 1976 in Denver, Colorado.
“3. The petitioner, Gale F. Coppernoll, at the time of the consummation of the marriage, lacked the capacity to consent to the marriage because of mental incapacity.
“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that a Declaration of Invalidity be entered, and the marriage between the parties hereto is hereby declared invalid as of July 13, 1976, and that the former name of petitioner, Gale F. Johnston be and is hereby restored to her.”
It is readily apparent that the Colorado marriage of the plaintiff was declared invalid because of the plaintiff’s lack of mental capacity. Under Colorado law, a marriage may be declared invalid for mental incapacity at the time of marriage and said marriage is voidable. Colo. Rev. Stat. § 14-10-111 states:
“Declaration of invalidity. (1) The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
“(a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.
“(2) A declaration of invalidity under subsection (1) of this section may be sought by any of the following persons and shall be commenced within the times specified, but in no event may a declaration of invalidity be sought after the death of either party to the marriage, except as provided in subsection (3) of this section:
“(a) For the reasons set forth in either subsection (1) (a), ... by either party to the marriage who was aggrieved by the conditions or by the legal representative of the party who lacked capacity to consent no later than six months after the petitioner obtained knowledge of the described condition;
“(5) Marriages declared invalid under this section shall be so declared as of the date of the marriage.”
Defendant had completed all of the cash property settlement payments; however, he refused to make any alimony payments because plaintiff had remarried before the first alimony payment was due. Plaintiff then commenced a contempt proceeding to enforce the payment by defendant of the monthly alimony award, contending that her Colorado marriage did not constitute a “remarriage” that would terminate alimony under her Kansas decree of divorce. Plaintiff’s position is that under Kansas law a marriage by a mentally incapable person is a void marriage and as such is not considered to be a marriage at all, whereas defendant contends that the plaintiff’s marriage was only voidable in Colorado, and under Kansas law a marriage that is voidable, even though annulled, is a marriage that would terminate alimony under the divorce decree.
The defendant does not argue that under Kansas law a marriage is void and of no effect where it is contracted by a mentally incapable person. Since this proposition is not contested by the defendant, no further discussion of this issue will be made by this court.
The trial court found;
“3. That said Colorado Declaration of Invalidity (or annulment) is res judicata between the parties and unassailable collaterally.
“4. That the effect of said Colorado annulment under Kansas law was that there was actually no marriage at all, and thus the Defendant’s obligation to pay alimony to Plaintiff has not terminated.”
In the case of Sutton v. Leib, 342 U.S. 402, 96 L.Ed. 448, 72 S.Ct. 398 (1952), the United States Supreme Court stated that a state must give full faith and credit to a decree of annulment rendered in another state, but could determine the effects of that decree on alimony payments from a prior divorce according to the law of the state where the original divorce decree was rendered. Therefore, Kansas law may be applied to determine whether the alimony payments in this case are to continue.
In Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231 (1962), the Kansas Supreme Court held that a marriage declared void because of bigamy did not terminate a wife’s right to receive payments from a trust fund, where the trust terms specifically provided that payments were to cease upon the wife’s remarriage. The court based this ruling on the nature of a void marriage, which is defined in this manner:
“A void marriage may be treated as void by the parties to it and by all the world. It is good for no legal purpose, and is not attended or followed by any of the incidents of a valid marriage.” p. 295.
In Dodd v. Dodd, 210 Kan. 50, 499 P.2d 518 (1972), the Kansas Supreme Court stated that alimony payments under a previous divorce decree would terminate upon the wife’s remarriage. In its attempt to define “remarriage” the court stated that if the second marriage was void, there was never any marriage to begin with and the alimony payments would not cease. The court based this conclusion on Powell v. Powell, 18 Kan. 371 (1877), which held that a marriage terminated due to incompetency of a party was void. If, however, the marriage was merely voidable, this constituted a remarriage within the plain meaning of the divorce decree and the payments could be terminated.
Since the Colorado marriage was invalidated because of the incompetency of one of the parties, Powell would control the effect the Colorado decree would have on the alimony payments from the former divorce decree, and as a result the payments of alimony must continue. The Dodd case seems to tacitly agree that such marriage is not a “remarriage” under Kansas law.
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ORDER
En Banc
Spencer, J.:
This is an appeal by the natural mother of a child under the age of eighteen years from an order finding the child to be deprived and severing the mother’s parental rights. K.S.A. 1978 Supp. 38-824.
The issue now before this court does not involve the merits of the appeal, but rather the right of the natural mother to be provided with court-appointed counsel and provision for necessary expense on appeal to this court.
Following a hearing at which the mother was represented by counsel assigned pursuant to K.S.A. 1978 Supp. 38-820, the trial court made findings of fact and entered conclusions of law. Those deemed relevant to the issue now under consideration are in substance that the minor child is neglected, dependent, and abused; that the mother is an unfit person to have custody of the child; and that the parental rights of the natural mother in the child are forever severed.
Notice of appeal was filed, followed by a request for the transcript and a certificate of appellant’s indigency. A transcript has been prepared and filed with the clerk of the district court, but the question remains as to payment of the reporter’s fees.
We now have before us a motion by the court-appointed counsel seeking permission to withdraw as attorney for appellant, and a motion on behalf of the appellant seeking additional time in which to file her brief. Accompanying these motions and as justification for the relief sought is a copy of the order entered by the trial court under date of January 8, 1979, on the motion of counsel for the natural mother requesting an order of appointment and a determination of her indigency. We learn from that order that the court did indeed find the natural mother to be an indigent person, but the court denied the request for appointment of counsel pending appeal and for the assessment of court costs, printing, and transcription costs to the county. It was concluded that, absent any legislative authorization, the court was unable to assess such costs to the public. It was there determined that all such costs and expenses are the sole responsibility of the appealing party. In the motions before us it is pointed out that, absent financial assistance in meeting the actual and necessary expense involved on the appeal, including the cost of the transcript and the preparation of briefs, all of which appellant is financially unable to provide, the efforts of her present counsel of record would be of no avail. Because of the gravity of the issues raised by these motions, it is deemed of importance to the bench and bar of this state that the position of this court on the issues be published.
The trial judge was technically correct in that there is no specific legislative authority for the appointment of counsel for an indigent person on appeal from an order severing parental rights. However, there is no doubt that the relationship of natural parent and child is a fundamental right of which neither may be deprived without due process of law as guaranteed by the Constitution of the United States and the Kansas Bill of Rights. Nor can there be any doubt that, in such case, the right to counsel, either retained or appointed, is essential to due process. In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967). The foregoing was recognized by our legislature by the enactment of K.S.A. 1978 Supp. 38-820 which provides for the assignment of an attorney at trial level for any such parent who is unable to employ counsel, and in the appeal provisions of K.S.A. 1978 Supp. 38-834b which provide among other things that the costs of transcripts and records on appeal shall be taxed by the court to which the appeal is taken in the manner therein set forth.
This court, in unpublished orders, has taken and now reaffirms the position that, absent a statutory provision to the contrary and absent limitation by the appointing authority, the responsibilities and duties of court-appointed counsel continue until final resolution of the cause for which assigned. Such occurs only after judgment has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. In so doing, we have followed the precepts of State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978), and State v. Heath, 222 Kan. 50, 563 P.2d 418 (1977).
In State v. Taylor, 202 Kan. 202, 204-205, 447 P.2d 806 (1968), our Supreme Court, in considering provisions for supporting services to assist counsel for an indigent in making an adequate defense to criminal charges, stated:
“In the absence of statute the duty to provide such may arise and be exercised because of an inherent authority in courts to provide a fair and impartial trial as guaranteed by Section ten of the Kansas Bill of Rights and the due process clause of the United States constitution.”
Similarly, there is inherent authority in courts to provide for counsel in order to provide a fair and impartial hearing of matters involved in severance of parental rights.
In response to the invitation of this court, the Attorney General of Kansas has filed herein a “Memorandum Concerning Appointed Counsel for Indigent Parents on Appeal of a Severance Action.” In this, that office makes note of the case of Goldberg v. Kelly, 397 U.S. 254, 262-263, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970), wherein it is stated:
“The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss’ . . . .”
and the case of Griswold v. Connecticut, 381 U.S. 479, 495, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965), where it is said:
“The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.”
The Attorney General makes note of the fact that the United States Supreme Court has consistently taken the view that the parent-child relationship is a constitutionally recognized and protected interest. It is also noted that various state courts have determined that an indigent parent is entitled to counsel when appealing a severance action by specific reference to Reist v. Bay Circuit Judge, 396 Mich. 326, 349, 241 N.W.2d 55 (1976), wherein it is stated:
Dated May 4, 1979.
“Having concluded that the right to assigned counsel in parental rights termination proceedings is process due the indigent parent, we also conclude that indigent parents are entitled to meaningful and adequate access to the appellate process and that this right can only be achieved through the representation by counsel and providing counsel with necessary transcripts. The Equal Protection Clause requires that indigent parents be provided counsel for prosecuting the first appeal as of right to the circuit court and such transcripts as counsel requires.”
and to Davis v. Page, 442 F. Supp. 258, 264 (S.D. Fla. 1977), wherein it is stated:
“While a dependency proceeding is not a criminal proceeding, it is substantially similar. The state is the initiating party, the proceeding is formal, and the potential loss is quite substantial. Since the state is threatening the deprivation of a fundamental interest, it must provide counsel to indigent parents unless it can demonstrate a compelling state interest in not providing counsel. Since the state has ‘no’ compelling interest in not providing counsel, the equal protection clause of the Fourteenth Amendment requires the provision of counsel to indigent parents in dependency proceedings.”
The Attorney General concludes that, “In light of current judicial trends, counsel should be appointed for an indigent parent on appeal of a severance action.” We agree.
In this case, it is held that the responsibilities and duties of counsel assigned to the natural parent by the trial court continue on appeal to this court. It is further held that a natural parent, whose parental rights in a child under the age of eighteen years have been severed, is entitled to the assignment of an attorney-at-law on appeal to the appellate courts of this state from such adjudication if that parent is financially unable to employ counsel. Such assignment is to be made by the judge of the district court in which the order or decree of severance is entered, and reasonable fees and expenses for such attorney are to be taxed as costs on appeal to be assessed and paid in the manner provided by K.S.A. 1978 Supp. 38-834b.
Accordingly, the motion of appellant’s counsel to withdraw is denied and appellant is granted thirty days from the date of filing this opinion in which to file her brief. | [
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Per Curiam:
This is an appeal by the executor of an estate from an order of partial distribution of a specific bequest.
On February 2, 1978, Gene Kaegi died testate, a resident of Leavenworth County. On March 6,1978, her will was admitted to probate. Among the provisions of the will were specific bequests to Mr. and Mrs. Robert L. Hart of the following personal property: “[M]y Purple Glassware Set; all of my White Haviland China . . . all of my old Solid Walnut Furniture . . . .” On May 19, 1978, the executor filed his inventory. On the same day, the Harts filed a petition for partial distribution. The executor opposed the distribution as premature. By journal entry of July 14, 1978, the trial court ordered distribution, conditioned upon the Harts furnishing a redelivery bond in the amount of 125% of the executor’s valuation of the specific bequests.
The executor contends that distribution was improper in that taxes, fees and expenses had not been determined, and because the time to appeal admission of the will, present another will, or present claims had not expired.
The law favors the earliest possible distribution of inherited property consistent with the proper administration of the estate. As a means of effecting this policy, partial distribution prior to final settlement is generally recognized by statute and case law. See Annot., 18 A.L.R.3d 1173. Our statutes clearly authorize partial distribution, with K.S.A. 59-1503 providing in part:
“If at any time prior to final settlement it appears that there is sufficient money to satisfy all the demands against an estate, the executor or administrator may, on order of the court, make payment of legacies and distribution of shares, except that specific legacies shall be first satisfied: Provided, however, If any demands are not yet barred or nine (9) months has not expired from the date of death, no executor or administrator shall be compelled to pay legacies or make distribution unless ordered to do so by the court and until bond or security is given by the legatee or distributee to refund his or her due proportion of any demand which may afterward be established against the estate and the cost attending the recovery thereof . . . (Emphasis original.)
Early delivery of specific legacies is particularly sanctioned. K.S.A. 59-1406 provides:
“Property specifically bequeathed may be delivered to the legatee entitled thereto upon his or her giving security for the redelivery thereof, or its appraised value, if ordered by the court so to do, to the executor or administrator; otherwise it shall remain in the custody of the executor or administrator, to be delivered or sold as may be required by law.”
Under the common law, specific legacies (but not other property) passed immediately to the legatees, subject only to the rights of creditors. K.S.A. 59-1406 modifies the common law by requiring security for redelivery. The statute thus permits immediate enjoyment of the property by the legatee while making it available if necessary for payment of claims against the estate and the cost of administration. 2 Bartlett’s Kansas Probate Law & Practice § 833 (rev. ed. 1953); Vernon’s Kansas Probate Code § 59-1406 (1978). See also K.S.A. 59-2246.
In light of our statutes, the fact that the time period in which to appeal admission of the will, present another will, or file claims had not expired should not prevent a partial distribution that is otherwise permitted. No formal accounting by the executor was required before partial distribution of property specifically bequeathed could be ordered. In re Shadley’s Estate, 279 Mich. 156, 271 N.W. 716 (1937); Conway v. Parker, 250 N.W.2d 266 (N.D. 1977).
In the present case, the order of partial distribution was within the sound discretion of the trial judge. The petition alleged that the property was stored in an unoccupied house, subject to dissipation through theft or otherwise. Although the executor asserted that adequate insurance existed, we note that specific bequests often have value beyond a mere monetary amount. The executor’s inventory revealed a total estate of $164,848.55, with the property in question valued at $1,425. Property subject to general legacies or contained in the residuary clause was valued at $63,580.35. This property was, of course, subject to appropriation for payment of estate debts prior to specific bequests. K.S.A. 59-1405. Finally, the redelivery bond and the court order provided protection to the estate and the executor. We find no error.
Affirmed. | [
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Foth, C.J.:
At issue in this case is the meaning of a devise under the will of Nellie C. Baird of a remainder interest in a quarter section of land in Sumner County. On her death in 1941 she devised it for life to Rosella Coates Hall. The will went on to provide that "after her death I give and devise ... to LENA HALL DUNN AND EDNA HALL, share and share alike, or to the survivor of them,” the described real estate.
Rosella, the life tenant, lived until 1973. One remainderman, the defendant Edna Hall (now Pfingston), farmed the land as Rosella’s tenant for the twenty-five years just prior to Rosella’s death. The other remainderman, Lena Hall Dunn, died intestate in 1964, leaving as her heirs her husband O. J. Dunn and two children, the plaintiff Neta Jean McVey and the defendant Edward Kenneth Dunn. They thus inherited, respectively, one-half, one-fourth and one-fourth of whatever interest Lena had in the land. In 1966, O. J. Dunn died testate, devising his interest to Edward, who thus attained three-fourths of Lena’s interest in the remainder.
Shortly after the death of Rosella, the life tenant, Neta McVey instituted this action against Edna, the remainderman who was in possession, and against Edward, the other purported remainder-man. She sought partition of the quarter and ultimately an accounting of the rents and profits from Edna. Edna counterclaimed, seeking to quiet title to the entire quarter in herself.
The district court interpreted the devise to Lena and Edna as creating a vested remainder in them as tenants in common. On the basis of this interpretation, the court declared that the land was owned one-eighth by Neta, three-eighths by Edward, and one-half by Edna. The court ordered a partition of the land and a complete accounting of the farming operations conducted since the life tenant’s death. Edna appeals.
She attacks the district court’s judgment on three grounds: (1) the present action is an impermissible collateral attack on the final order of the probate court from which no appeal was taken; (2) the devise to Lena and Edna created a joint tenancy; and (3) alternatively, the devise to Lena and Edna created a remainder contingent upon surviving the life tenant. The first two contentions lack merit; the third requires reversal.
1. A final decree in a probate proceeding “shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled.” K.S.A. 59-2249. In Sharpe v. Sharpe, 164 Kan. 484, 485, 190 P.2d 344 (1948), our Supreme Court discussed the duty of a probate court under 59-2249:
“A full compliance with the intent of such statute is not made by a probate court when the final decree simply recites the names of the devisees and legatees and that the property shall descend to them ‘as in said will provided.’ In order for a probate court to follow properly the mandate of such statute, the final decree should set forth with particularity the extent and nature of the title which each legatee or devisee acquires.”
The probate court, in its journal entry making a final settlement of Baird’s estate, assigned the property involved here as follows:
“To Lena Hall Dunn and Edna Hall, or to the survivor of them, Subject to life estate of Rosella Coates Hall as set forth above . . .
The probate court failed to perform fully its statutory duty because it did not specify the type of remainder interest devised to Lena and Edna; i.e., it did not determine whether the clause created a contingent remainder, a vested remainder in tenancy in common, or a vested remainder in joint tenancy. Thus, this action is not an impermissible collateral attack on the final judgment of a probate court, but rather an action to specify the extent and nature of the title which Lena and Edna acquired under Baird’s will.
2. Since 1939 Kansas has had a statute which reverses the ancient common law rule favoring joint tenancy, and which provides that a grant to two or more persons will be regarded as creating a tenancy in common unless the language used makes it clear that a joint tenancy was intended. The current statute is K.S.A. 58-501. The district court held that the language used in the devise to Lena and Edna (“share and share alike, or to the survivor of them”) did not clearly show that a joint tenancy was intended. To this extent we agree with the trial court. The language used closely resembles that considered in In re Estate of Swingle, 178 Kan. 529, 289 P.2d 778 (1955). There the testatrix devised a life estate in certain property to her daughter and provided that upon the life tenant’s death the remainder should go to Edna, Paul, and Wilbur Swingle, “or the survivor or survivors of them.” (p. 530.) All the remaindermen survived the testatrix and the life tenant. When Paul later died intestate, an action was brought to construe the devise to Edna, Paul and Wilbur.
The administrator of Paul’s estate argued that the devise created a tenancy in common, while Edna contended that it created a joint tenancy with rights of survivorship. The trial court agreed with the administrator and held that Paul’s heirs-at-law owned an undivided one-third interest in the property. The Supreme Court affirmed, citing 58-501.
Swingle controls the instant case. The words “or to the survivor of them” in the devise to Lena and Edna did not create a joint tenancy with the right of survivorship. The words “share and share alike” import that if Lena had also survived the life tenant, she and Edna would have owned the land as tenants in common, each with an undivided one-half interest.
3. Edna’s third assignment of error is that the words “or to the survivor of them” created a remainder contingent upon survival of the life tenant, Rosella. The argument depends on whether the survivorship language in the devise to Lena and Edna refers to the time of the testator’s death, or the death of the life tenant.
Where there is an express provision for survivorship, but the time of survivorship is not specified, a question of construction arises. Faris v. Nickel, 152 Kan. 652, 655, 107 P.2d 721 (1940). The paramount rule of construction in the interpretation of provisions in a will, to which all other rules are subordinate, is that the intention of the testatrix as garnered from all parts of the will is to be given effect. Jennings v. Murdock, 220 Kan. 182, 208, 553 P.2d 846 (1976).
Viewing Baird’s will as a whole, we believe that it was the testatrix’s intention that the survivorship requirement in the devise to Lena and Edna refers to the time of the death of the life tenant, not the death of the testator. Baird disposed of six farms through her will, one to a trust and five to single individuals. Four of the devises to single individuals were expressly conditioned on survival of the testatrix. All four contained the same clause, “In the event said [devisee] should die prior to the date of my death,” followed by disposition of the property to another person.
This devise, the fifth, was to Rosella for life, and “after her death” to Lena and Edna “or the survivor of them.” This devise did not contain the clause used in the other four devises, which expressly conditioned the gift on survival of the testatrix. Since the language expressly conditioning the gift on survival of the testatrix was not used, but other survivorship language was, it must be inferred that the testatrix intended the survivorship requirement in that devise to relate to the time referred to, namely, “after her [the life tenant’s] death.”
This interpretation is supported not only by the language used in the will as a whole, but also by a presumption regarding survivorship requirements in a disposition of property. Where there is an express provision of survivorship, but the time of survivorship is not specified, there is a presumption that the words of survivorship refer to the period of distribution of the estate in remainder. Hitchcock v. Skelly Oil Co., 197 Kan. 1, 9-10, 414 P.2d 67 (1966); Fans v. Nickel, 152 Kan. at 655; Purl v. Purl, 108 Kan. 673, 676, 197 Pac. 185 (1921).
The chief argument made by the appellees against this construction is that it interprets the devise to Lena and Edna as creating contingent remainders. Appellees cite the familiar rule that vested remainders are favored over contingent ones, and that “no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.” Mathews, Administrator v. Savage, 195 Kan. 501, 505, 407 P.2d 559 (1965). (Emphasis added.)
It is important to note that the presumption favoring vested remainders only applies if it is consistent with the intention of the testator as gleaned from the language used in the will. This aspect of the rule was emphasized in Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146 (1922), where the court commented on Bunting v. Speek, 41 Kan. 424, 21 Pac. 288 (1889), in which the rule favoring vested remainders was first recognized. In Bunting, the rule was formulated in these terms:
“In a devise to a wife for life, with remainder to the legal heirs of the testator, to create a contingent remainder the intent so to do must be expressed in words so plain that there is no room for construction.” (Syl. ¶ 1.)
In Kirkpatrick the court observed that the Bunting decision contained misleading and incorrect statements of the law; the true rule as to contingent and vested remainders is that “in case of unfeigned ambiguity in the language used in creating a remainder, a construction is favored that will make the remainder a vested one; but such a construction must give way to the intention of the testator as expressed in the will.” 112 Kan. at 320.
The devise to Lena and Edna contains no “unfeigned ambiguity.” In our opinion the intention of the testatrix as expressed in her will was to devise a life estate to Rosella Hall and a remainder interest to Lena and Edna contingent upon their survival of the life tenant. Edna survived the life tenant, but Lena did not. Therefore, Edna became the sole owner of the property upon the death of the life tenant.
In support of the trial court’s decision the appellees contend that it is supported not only by the will itself, but also by evidence that Edna admitted on numerous occasions the appellees were co-owners of the land. These admissions, assert the appellees, are binding on Edna and, as they say in their brief, are “independently relevant to the issue of the respective interests of the parties.”
What interest the remaindermen took is a question of law, and not of fact. While parties — and courts — may be bound by admissions of fact, questions of law are for the courts alone to determine. The principle is illustrated by In re Estate of Maguire, 204 Kan. 686, 466 P.2d 358 (1970). The primary issue there was whether a testamentary option to purchase real estate violated the rule against perpetuities. The court held that such an option does not violate the rule because it is personal in character and is exercisable only within the lifetime of the optionee. Having decided this, the court was faced with the problem that in the course of the lawsuit the parties had agreed the option rights created in Maguire’s will descended to the heirs of the optionee.
In resolving this problem, the court acknowledged the rule that ordinarily courts are bound by stipulations of the litigants, but limited this rule by saying:
“However, we believe the rule, valid though it may be where questions of fact are concerned, cannot be invoked to bind or circumscribe a court in its determination of questions of law. This principle is set out in 50 Am. Jur., Stipulations, § 5, p. 607:
“ ‘It has frequently been stated as a general rule that the decision of questions of law must rest upon the court, uninfluenced by stipulations of the parties, and it is generally held, accordingly, that stipulations as to what the law is are invalid and ineffective. . . ” In re Estate of Maguire, 204 Kan. at 691.
In Beams v. Werth, 200 Kan. 532, Syl. ¶ 10, 438 P.2d 957 (1968) the court said:
“The court is not bound by an erroneous admission of law made by one of the parties in an action where no one is deceived and no prejudice results.”
If a court is not bound by erroneous stipulations or admissions of the parties as to the law when made in the course of the lawsuit, a fortiori it is not bound by erroneous extrajudicial admissions. The trial court here, we note, did not rely on Edna’s admissions. Since the ownership of the land involved here is a legal question requiring an interpretation of the devise to Lena and Edna, the erroneous admissions of law made by Edna are immaterial to a determination of this action. They were properly disregarded by the trial court, and cannot control our decision.
The judgment is reversed and the case is remanded with directions to enter judgment quieting title in the appellant. | [
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Rees, J.:
This is an appeal taken from a trial court grant of an injunction requested by the defendants and denial of an injunction requested by plaintiff. We affirm.
During the protracted period this case has been under advisement, we have not only sought an acceptable command of the evidence, issues and factual background of this litigation, but also the implications of its resolution. We will not undertake an explicit detailed recitation of the evidence, but we will set forth certain facts established by the evidence as well as some observations and conclusions of our own. To the extent the expression of these matters is not orderly, we ask the reader’s indulgence. The parties may find limited factual misstatements but we are confident that if such exist they are inconsequential.
Particularly since World War II, the conduct of agribusiness in this state has substantially changed. Increased technological knowledge and capabilities have altered farming practices. Historically the foundation of the agricultural industry in the high plains of western Kansas has been dry land farming. Because of the vagaries of nature, farming in the region is severely affected by area and seasonal variations in rainfall. Water has always been one of the most important natural resources in the region. It is a dear commodity. In relatively recent times, consistent and increased crop production has been sought and achieved through widespread use of commercial fertilizers and underground water. Use of the latter has served two significant purposes. The impact of natural variations in precipitation has been lessened. Except for years of most fortuitous coincidence of weather conditions, controlled and increased surface application of water to crop land has increased its productivity beyond that otherwise possible.
Here we have two parties, operators of adjacent acreages, each of whom we will refer to in the singular, who are affected by the institution of irrigation practices incident to the use of underground water. Although the land in the area with which we are here concerned is quite level, there was natural drainage for surface water and historical natural drainage was from the plaintiff’s property to the defendant’s. On the parties’ land there were no natural streams along which water ordinarily flowed throughout each year or even in the same season of each year. In its natural state there were so-called lagoons, or dry lake beds, on the property of both parties. When there was sufficient rain to cause a runoff of surface water, the lagoons would fill to their individual capacities and when a lagoon was filled excess surface water would travel along natural depressions to a lagoon or lagoons at lower elevation. If there was sufficient runoff, water would seek still lower locations off of and away from the parties’ property. Understandably, the natural drainage was irregular in direction and under appropriate circumstances there was some drainage, or “back-up,” of surface water from defendant’s property onto plaintiff’s property.
Although the parties operated other contiguous acreage, directly involved in this case are three quarter sections lying in a line from north to south operated by plaintiff and one quarter section operated by defendant lying immediately to the east of plaintiff’s middle quarter section. At all times material, defendant’s land has been committed to dry land farming; it is not irrigated. On the other hand, plaintiff has undertaken irrigation of her three quarters. To accomplish this, plaintiff has tinkered with Mother Nature. She has modified natural terrain features by leveling or “shaping.” She has drilled and put into operation water wells, one on the north quarter and one on a quarter section adjacent to or near her south quarter, to provide water for irrigation of the three quarters. The effect of the shaping is that surface drainage from the north and south quarters is to the middle quarter and from the middle quarter east to defendant’s quarter. The land reshaping and installation of the irrigation system was performed during the years 1966 through 1970 at an approximate cost of $32,200.
Plaintiff’s irrigation water is transmitted by pipe from the wellhead to the north side of the north quarter, to the west side of the middle quarter and to the south side of the south quarter. In substantial accord with good water management practice, the plaintiff excavated a tailwater pit at the extreme east side of the middle quarter. The tailwater pit provides a retention capability for irrigation water that is not absorbed into the ground as it flows over the surface. The grading and shaping of the north quarter was such that irrigation water reaching its south side travels to a location at approximately the southeast corner of the quarter and then by ditch along the east property line it travels south to the tailwater pit. The middle quarter was shaped such that irrigation water reaching its east side travels by ditch to the south or north to the tailwater pit. The south quarter was shaped such that irrigation water reaching the north side travels east or west to a culvert where it passes through to the north side of the south line of the middle quarter and then by ditch to the southeast corner of the middle quarter and finally by ditch north to the tailwater pit. By means of a pump at the tailwater pit and pipe laid for the purpose, accumulated water at the tailwater pit is returned to the distant side of one or more of the three quarters where it is again released to pass through the crop acreage. The obvious purpose of the tailwater pit system is reuse of once-pumped underground water so that it does not go to waste because it is not absorbed when passing across the crop acreage. The entire system would function without complication if it were not for consideration of surface water resulting from precipitation and if the operation of the system is overseen and managed so that the tailwater pit is not allowed to overflow. As to surface water resulting from precipitation, the retention capability of the tailwater pit is dependent upon the amount of irrigation water accumulated or allowed to accumulate in the pit and whether the tailwater pit recovery system is in operation, on pump. By way of explanation, if the tailwater pit is filled to capacity with irrigation water, then there is no rainwater retention capability; if there is no irrigation water in the pit, the entire capacity of the pit is available for retention of rainwater; and if the tailwater pit is on pump, the rainwater retention capability has a correlation to the rate of transmittal of water back through the recovery system.
At this juncture we will refer again to the lagoons. They were dry in their natural state. They were regularly planted as the land immediately adjacent was planted; that is, if the immediately adjacent acres lay fallow, they lay fallow; but if the immediately adjacent acres were put to crop, the lagoons were put to crop. As a practical matter, the lagoons simply were shallow depressions in the otherwise almost flat surface. Accumulated surface water remained in the lagoons until lost through evaporation and absorption. The land shaping by the plaintiff eliminated the lagoons on her three quarters. Thus the surface water retention capability of the lagoons on plaintiff’s land was lost by plaintiff’s conversion to irrigated farming. Specifically, essentially uncontradicted trial evidence established that plaintiff’s land shaping eliminated one lagoon on the south quarter that had a capacity of forty-four acre-feet of water and one lagoon on the middle quarter that had a capacity of ten acre-feet of water. (Somehow during trial and without objection, the total of these two capacities was considered by the parties and the trial court to be fifty-five acre-feet and we will perpetuate this arithmetic error.) To the extent of its available capacity, the tailwater pit replaced the lost retention capability of these two lagoons.
The average annual rainfall in the area of the parties’ property is on the order of 19.5 inches, the equivalent of 260 acre-feet of water per quarter section. Thus the obliteration of the mentioned lagoons resulted in a lost water retention capacity equivalent to approximately 21.2% of the average annual rainfall on one quarter, approximately 10.5% for two quarters, and approximately 7.1% for three quarters. But these percentages, creatures of our own computations, are of materiality only to provide some concept of the extent of loss of water retention capability. Obviously the amount of rain received in a given time is the most important factor in determining the extent of surface water and surface runoff. In the case before us, there was injected through the evidence various additional factors including, among others, porosity of cultivated ground as opposed to uncultivated ground and soil absorption rates and capacity as affected by the degree of irrigation immediately preceding or concurrent to rainfall.
Prior to the shaping of plaintiff’s three quarters, plaintiff’s surface water runoff occurred in various degrees and at various locations on the property lines of defendant’s quarter. As a part of the land shaping by plaintiff, an elevated access road was built on plaintiff’s land next to the east property line of plaintiff’s middle quarter. The elevation of this road was higher than the preexisting natural elevation of that east property line. The road acted as a dike that both obstructed natural surface water drainage onto defendant’s quarter and served as the east side of the tailwater pit. During construction of the road, two eighteen inch culverts were placed through the road base but their elevation was not determined upon installation and is not now known.
1972 and 1973 were years of abnormally high rainfall in the area. In September, 1973, when there was relatively heavy rain, defendant engaged in self-help; he threw up an earth dike on his land parallel to and immediately adjacent to plaintiff’s access road. The top of the dike was at an unknown elevation above the surface of the access road. The dike blocked drainage from the tailwater pit onto defendant’s quarter. It caused water to back up and stand in the crops on plaintiff’s land.
Of the foregoing, we find the primary factual conclusion established by the evidence is that there was an elimination of a fifty-five acre-feet surface water retention capability by reason of plaintiff’s modification of the topography of her three quarters. Excluding the effect of the tailwater pit and possibly altered soil porosity of the tilled acreage, after plaintiff’s shaping of her three quarters and upon proper coincidence of rainfall and time, an additional fifty-five acre-feet of surface water drains onto defendant’s quarter. With this understanding, we direct attention to other facts involved.
Plaintiff commenced this action on September 14, 1973, by filing a petition alleging defendant had created a structure which obstructed and diverted the natural flow of surface water and caused water to be retained on plaintiff’s land. Plaintiff sought damages and a mandatory injunction requiring defendant to remove his dike. An immediately issued temporary restraining order required defendant to remove his dike. On September 17, and apparently by agreement of the parties, the restraining order was lifted and the matter was set for further hearing the next month. Defendant cut his dike and water drained off plaintiff’s land onto defendant’s. In October, and again by agreement of the parties, further proceedings were held in abeyance to permit the parties to attempt a voluntary and mutually acceptable resolution of this matter. The parties failed to reach such a resolution. The case was pretried in March, 1975, and defendant lodged a counterclaim by which he sought damages and a mandatory injunction requiring plaintiff to recreate and maintain a surface water retention capability. At trial, both plaintiff and defendant abandoned their damage claims and, as noted, plaintiff’s mandatory injunction request was denied and defendant’s mandatory injunction request was granted. The particular form and nature of the terms of the injunction will be briefly mentioned later.
Couched in somewhat different language, the testimony of plaintiff’s husband and her tenants clearly reflects that with respect to defendant’s requested injunction they personally believed they had various factual defenses. Hopefully omitting none they believed substantial, we will state those we have perceived from our review of the record. There is surface water drainage onto plaintiff’s land from adjacent tracts owned and operated by others. Tillage and irrigation results in greater soil penetration by surface water than would occur if the ground was not planted, cultivated and irrigated with the consequence being that the fifty-five acre-feet water retention loss is to some degree offset. The surface water retention capability of the tailwater pit at least partially offsets the retention loss. The tailwater pit capacity had been increased by further excavation since the filing of the lawsuit; further increase of its capacity by additional excavation is planned; and if it is not now true, the final expected capacity of the tailwater pit will equal or exceed fifty-five acre-feet. The shaping of the south quarter was done in accord with one of multiple irrigation development plans reviewed by the local soil conservation service office. Recently constructed tail-water pits on upper adjacent tracts will decrease if not eliminate surface water runoff originating from those neighboring lands.
Lastly, mention need be made of the activity of the parties during the almost sixteen month period from the date suit was filed to the date of pretrial. Surveys were made of both immediately involved and nearby property. A hydrologist, a conceded expert, studied the survey and other data and prepared a retention structure plan, the cost of which if implemented in 1976 would have been somewhat less than $3,000. In the course of the hydrologist’s work and also in the course of the county engineer’s work, they each arrived at a conclusion as to an elevation at which the east line of plaintiff’s middle quarter should be maintained in order to provide an additional, or replacement, fifty-five acre-feet water retention capability on the plaintiff’s middle quarter. The substance of the trial court judgment from which this appeal is taken is that defendant is entitled to maintain a dike to that computed elevation and that plaintiff is directed to restore water storage capacity to that computed elevation.
Plaintiff raises multiple issues on appeal. To consider these we first note applicable underlying law. Surface water under the common law was a common enemy which a landowner could fight as he deemed best. He could obstruct or divert its flow without regard to resulting damages to other landowners. However, statutory forerunners of K.S.A. 24-105 and 24-106 enacted in 1911 were substituted for the common law and landowners lost the right to deal with surface water in any manner they chose. Goering v. Schrag, 167 Kan. 499, 500, 207 P.2d 391 (1949); Dyer v. Stahlhut, 147 Kan. 767, 770, 78 P.2d 900 (1938).
The trial court found the plaintiff’s acts constituted a violation of K.S.A. 24-105. That statute provides in relevant part as follows:
“It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor . . . .”
Plaintiff contends the trial court erred in rendering injunctive relief for defendant where defendant dismissed his claim for damages and failed to present evidence of damage or the threat of damage. Plaintiff argues that the facts of the case did not warrant the drastic relief of mandatory injunction and that defendant could have been compensated for any damages in an action at law.
The Kansas Supreme Court has affirmed the use of injunctive relief to correct a violation of K.S.A. 24-105. Rardin v. Marcotte, 194 Kan. 186, 189, 398 P.2d 351 (1965); Simon v. Neises, 193 Kan. 343, 347, 395 P.2d 308 (1964); Bolinger v. Moorhouse, 154 Kan. 124, 114 P.2d 853 (1941).
However, plaintiff argues defendant suffered no damage from the increased runoff caused by the leveling of plaintiff’s land. This argument is made with the observation that K.S.A. 24-105 makes unlawful only the diversion of surface water “to the damage of the adjacent owner.”
Injunctive relief is not used to prevent prospective injury unless it appears there is a reasonable probability of injury and an action at law will not afford an adequate remedy. Freeman v. Scherer, 97 Kan. 184, 188, 154 Pac. 1019 (1916). Mere apprehension or a possibility of wrong and injury ordinarily is not enough to warrant the granting of an injunction. Hurd v. Railway Co., 73 Kan. 83, Syl. ¶ 3, 84 Pac. 553 (1906). To establish a right to an injunction it is necessary for a party to satisfy the court there are reasonable grounds to fear the recurrence of the new injury with such frequency as seriously to affect the value of his lands, or that other considerations render his remedy at law inadequate. Whitehair v. Brown, 80 Kan. 297, 300, 102 Pac. 783 (1909).
A review of the record in the present case indicates that there is some circumstantial evidence but little direct evidence of damage to defendant’s land. It is true that defendant did not testify and there was no evidence of crop loss. However, we are satisfied the evidence indicates plaintiff’s actions in leveling her land and in constructing the elevated access road with two culverts had the effect of accelerating and increasing the flow of surface waters onto defendant’s land. A tenant who farmed nearby land testified that in 1973 there was more water on defendant’s land than he had ever seen before. The parties stipulated defendant’s land was used for dry land farming. The trial court made a personal inspection of the site and made the following conclusion:
“(2) That the plaintiff diverted by artificial means, surface waters on her lands onto the land of a lower proprietor and accelerated and increased the flow of surface waters and increased the drainage of her own land to the damage of the defendants.”
The grant or denial of a mandatory injunction rests within the discretion of the trial court and should be disturbed only upon the showing of abuse. 42 Am. Jur. 2d, Injunctions § 353, p. 1162.
Although the evidence of damage or prospective injury was scanty and defendant dismissed his counterclaim for damages after the evidence was presented, the evidence here is sufficient to bring this case within the ambit of K.S.A. 24-105 and the case law upholding the use of injunctive relief, particularly in view of the discretionary power of the trial court. Goering v. Schrag, 167 Kan. 499; Horn v. Seeger, 167 Kan. 532, 207 P.2d 953 (1949); Skinner v. Wolf, 126 Kan. 158, 266 Pac. 926 (1928); Martin v. Lown, 111 Kan. 752, 208 Pac. 565 (1922); Evans v. Diehl, 102 Kan. 728, 172 Pac. 17 (1918).
Plaintiff next contends defendant’s counterclaim for injunctive relief was barred by the statute of limitations. She argues the land leveling was a completed permanent improvement and that the statute of limitations expired two years later. Defendant counters with the argument that the damage done to his property in 1973 from the flow of surface water off of plaintiff’s land was a temporary injury and each such injury causes a new cause of action to accrue. Defendant contends the effects of plaintiff’s land leveling were subtle and not discernible until the heavy rain of 1973.
The trial court neglected to rule upon the statute of limitations question in its written findings of fact and conclusions of law. However, in its oral rulings at the conclusion of the hearing upon plaintiff’s motion for additional findings of fact, the trial court indicated its position was contrary to that of plaintiff.
This court has recently had occasion to consider when a cause of action accrues as the result of a party causing another’s land to be flooded by diverting surface water from its natural course of flow. In Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, 575 P.2d 1316, rev. denied 224 Kan. clxxxvii (1978), it is initially noted:
“The question of when a cause of action accrues as a result of a party causing another’s land to be flooded has been extensively litigated in Kansas. Not all of the Kansas authority is in harmony. Obviously, each case must be decided on its own facts, giving due regard to established law.” (p. 127.)
and Kansas case law is reviewed as follows:
“The Kansas Supreme Court has considered whether the injury was permanent or temporary as the determinative factor in when the statute of limitations commences to run against damage from flooding caused by construction. In Henderson v. Talbott, 175 Kan. 615, 621, 266 P.2d 273, the Supreme Court approved language from 56 Am. Jur., Waters §§ 45 and 443 (now 78 Am. Jur. 2d, Waters §§ 35, 39, 122, 123, 128 and 367) to the effect that if an injury is permanent, or if the causative structure or condition is of such a character that injury will inevitably result, and the amount of damages can be determined or estimated, a single action for both past and future damages should be brought. Henderson adopts a rule which would allow as many successive recoveries as there are successive injuries, where the construction or continued existence of the structure is not necessarily injurious, but may or may not be so, or where the flooding is merely temporary, occasional or recurrent, causing no permanent injury to the land. Successive recovery was also approved where the possibility or likelihood of the alteration or abatement of the causative condition existed. The statute of limitations starts to run when plaintiff’s land or crops are harmed and each injury by flooding brings a new cause of action until the injury becomes permanent. (Simon v. Neises, 193 Kan. 343, 348, 395 P.2d 308.)” (p. 128.)
In reversing the trial court, it was concluded that plaintiff’s damages were temporary and therefore his cause of action did not accrue and the statute of limitations did not begin to run until the time of a second flood in October, 1973. It was observed that plaintiff’s land had been flooded only twice in the last twenty-four years; that following a 1967 flood plaintiff’s permanent damages were not reasonably capable of judicial ascertainment; that flooding of plaintiff’s land was contingent upon a number of events occurring at approximately the same time; and it would have been highly speculative to determine when and if such combination of events would occur again. In Dougan, as in the present case, the applicable statute of limitations was K.S.A. 60-513(o)(4).
The Supreme Court was confronted with a similar case in Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338 (1976). There a ditch which carried water from plaintiffs’ land across defendants’ land was obstructed in 1965 when defendants filled it with trees and dirt. The obstruction caused water to back up onto plaintiffs’ land. Plaintiffs did not file suit until 1972. Even though there was substantial evidence that plaintiffs were aware of the obstruction and resulting damage to their property many years before filing suit, the Supreme Court upheld the trial court’s determination that the plaintiffs’ injuries were temporary and a cause of action accrued with each new flooding. The court described temporary injury as follows:
“Injuries have been classified as temporary or recurring in nature when caused by an abatable nuisance or condition, or by defects which can be repaired or remedied at reasonable expense. Successive injuries of this nature have been held to give rise to separate and distinct causes of action.” (Syl. ¶ 2.)
. We find Dougan and Gowing applicable. Here there is evidence that no substantial flooding and injury occurred on defendant’s property as a result of plaintiff’s land leveling until 1973. Flooding is an infrequent and virtually unpredictable occurrence. The amount of both present and future damages to defendant could not reasonably be determined in a single action.
Plaintiff next claims the doctrine of equitable estoppel should bar defendant’s counterclaim. She says defendant, by silence and inaction, permitted her to make permanent improvements and expend large sums of money over a period of several years. Defendant, according to plaintiff, sat back, without asserting the rights he now claims to have been violated, and permitted plaintiff to prejudicially change her position.
Plaintiff confuses the doctrines of equitable estoppel and laches. The cases relied upon by plaintiff concern laches and not equitable estoppel.
“The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. (Maurer v. J. C. Nichols Co., 207 Kan. 315, 485 P.2d 174 [1971].)
“This court has further said:
“ ‘The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.’ (Browning v. Lefevre, 191 Kan. 397, Syl. ¶ 2, 381 P.2d 524 [1963].)
“ ‘. . . One who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement. . . .” (In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 [1976].)
“ ‘. . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. . . .’(United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 [1977].)” Bowen v. Westerhaus, 224 Kan. 42, 45-46, 578 P.2d 1102 (1978).
In the present case, it does not appear that defendant made false representations or concealed facts from the plaintiff and, therefore, equitable estoppel is not applicable.
Laches is principally a question of inequity of permitting a claim to be enforced; an inequity founded upon some change in the condition or relations of the property or parties. It is delay that makes it inequitable to afford the relief sought and warrants the presumption that a party has waived his right. Laches is an equitable device to bar legal claims in certain instances. Perpetual Royalty Corporation v. Kipfer, 253 F. Supp. 571 (D. Kan. 1965). It is an equitable device designed to bar stale claims and courts of equity will regard long passage of time in asserting claims with disfavor apart from any particular statute of limitations. Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257 (1973); McFadden v. McFadden, 187 Kan. 398, 357 P.2d 751 (1960).
Laches is not properly applicable in the present case. Plaintiff’s argument proceeds upon the assumption that defendant was aware of the damaging effect plaintiff’s land leveling would have upon his property at the time the land was leveled and the access road constructed. As noted, there was evidence plaintiff’s actions did not result in flooding upon defendant’s property until 1973. Plaintiff refers to nothing in the record indicating that defendant was aware of damage or threat of damage to his property prior to 1973. The cases relied upon by plaintiff are distinguishable in that they involve a failure by the plaintiff to promptly assert his rights after the plaintiff knew or should have known that his rights were infringed. In the present case, plaintiff has not shown that defendant slumbered upon his rights with knowledge of those rights.
Plaintiff next asserts the trial court erred in not finding her land leveling was in conformance with regulations of the United States Department of Agriculture and the Kansas Division of Water Resources. Unfortunately, plaintiff does not provide in her brief a citation for the alleged administrative standard. Defendant in his brief on appeal makes no attempt to answer plaintiff’s argument. We do not find such a standard in our review of the administrative regulations of the Division of Water Resources found in Chapter 98 of the Kansas Administrative Regulations.
Even assuming state and federal agencies have created a standard for water retention in the development of irrigation plans, plaintiff cites no authority that such standard is controlling as to one landowner’s liability to an adjacent landowner for runoff resulting from land leveling. A review of the statutes (K.S.A. 74-506a et seq.) and the administrative regulations (K.A.R. ch. 98) indicates that the state division of water resources, within the state board of agriculture, is an agency upon which the powers and authority of the old Kansas water commission and state division of irrigation have been conferred. K.S.A. 74-506b. It remains the duty of the irrigation commissioner to gather data, information and statistics concerning the state’s water supply and the methods employed in applying water to crops. K.S.A. 74-509. The commission is also to provide assistance and advice to any individual interested in installing an irrigation plant. The division of water resources also supplies state assistance in the construction of water development projects. A water resources board holds hearings upon applications for state assistance and makes determinations of eligibility. K.A.R. 98-2-10. We find nothing in the statutes or regulations to support plaintiff’s contention that administrative regulations created by the division of water resources govern the legal liability of landowners for runoff caused by land leveling.
K.S.A. 24-105 specifically declares it unlawful “for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor.” The statute does not define an acceptable level of discharge. Plaintiff’s land leveling in conjunction with the elevated access road with culverts appears to constitute a violation of the statute whatever may be the administrative regulations of the division of water resources or the United States Department of Agriculture.
One of the trial court’s conclusions of law was as follows:
“(3) That the defendants have the right to maintain a dike to the elevation of 98.30 feet, and any prior restraining orders or injunctions issued herein contrary to this should be and the same are hereby so amended.”
Thus, the trial court affirmed its earlier lifting of the temporary restraining order that required defendant to remove his dike. Plaintiff contends the trial court erred in this finding and in not granting plaintiff a mandatory injunction requiring defendant to remove his dike permanently. Plaintiff argues the defendant’s dike is a violation of K.S.A. 24-105 and mandatory injunction to compel defendant to remove it is a proper remedy.
There is a certain inconsistency between plaintiff’s argument here and her argument that the trial court erred in granting injunctive relief to defendant. The refusal of the trial court to issue a mandatory injunction ordering defendant to remove his dike was not erroneous. A mandatory injunction is an extraordinary remedial process usually resorted to for the purpose of effectuating full and complete justice, and commands the performance of some positive act. While the granting of mandatory injunctions is governed by the same rules as the granting of preventive injunctions, courts are more reluctant to grant a mandatory injunction than a prohibitory one, and generally an injunction will not lie except in prohibitory form. A party seeking a mandatory injunction must clearly be entitled to such relief before it will be rendered. Prophet v. Builders, Inc., 204 Kan. 268, 273, 462 P.2d 122 (1969). The grant or denial of mandatory injunctive relief rests within the sound discretion of the trial court and should be disturbed only upon the showing of abuse. 42 Am. Jur. 2d, Injunctions § 353, p. 1162.
Plaintiff is not in a position to seek equitable relief in the form of a mandatory injunction. In Freeman v. Scherer, 97 Kan. 184, the Supreme Court affirmed a trial court’s refusal to grant a mandatory injunction where it appeared the plaintiff landowner had caused flooding upon his own property by erecting an obstruction in the defendant’s drainage ditch. The Court said in part:
“One who asks for an injunction is governed by the usual equitable rules, and one of them is that ‘He who seeks equity must do equity.’ If he has acted wrongfully and illegally in- the matter he is hardly entitled to ask for equitable relief by injunction. He did act illegally and wrongfully when he closed the ditch and obstructed the passage of water through it. In a sense he invited and permitted the injury which he anticipates may result to him from the ditch and dike. ‘A party can not invite and encourage a wrong, and then ask a court of equity to protect him by an injunction from the consequences of that wrong.’ (Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708, syl. ¶ 2, 26 Pac. 683; Downs v. Comm’rs of Wyandotte Co., 48 Kan. 640, 29 Pac. 1077, 22 Cyc. 776.)” (p. 189.)
In the present case it appears plaintiff invited and precipitated the injury upon her own property. It was her action in leveling her land and establishing the elevated access road with culverts which precipitated defendant’s retaliatory action. Plaintiff has not done equity and therefore is not entitled to equity.
In Dyer v. Stahlhut, 147 Kan. 767, the plaintiff landowner caused surface water to drain onto defendant’s property by removing a hedge row and lowering the property line elevation. Defendant’s response was to fill the depression caused by the removal and restore the ground elevation. Plaintiff brought an action to obtain a mandatory injunction for the removal of the dirt placed at the property line by defendant. The trial court denied the relief sought and the Supreme Court affirmed. Dyer is distinguishable because of its particular finding that the filling in of the hedge row with dirt did not constitute a dam or levee within the meaning of the statutory forerunner of K.S.A. 24-105. Further, it was plaintiff who had created the artificial means of surface water diversion. 147 Kan. at 771.
A case upon which plaintiff relies, Skinner v. Wolf, 126 Kan. 158, is also distinguishable. There the plaintiff landowner brought suit for a mandatory injunction requiring defendant to remove a dike which obstructed the flow of surface water from plaintiff’s land across defendant’s land. The trial court granted the injunction and the Supreme Court affirmed. Skinner differs from the present case in that there it was found plaintiff was not responsible for the diversion of the flow of surface and drainage waters across defendant’s land. Here defendant’s dike was constructed in response to actions taken by plaintiff that diverted surface water onto defendant’s land.
As her final issue, plaintiff asserts that the trial court made a finding of fact that leveling land for irrigation is tantamount to the construction or maintenance of a dam or levee. Plaintiff contends there is no evidence or case law supporting the view that land leveling is equivalent to the construction and maintenance of a dam or levee in violation of K.S.A. 24-105.
Plaintiff ignores the fact that in addition to her land leveling an elevated road was constructed which served to impound waters upon her property. When two culverts were placed in the road the water was then permitted to escape at an increased velocity across defendant’s land. The court recognized the effect of the elevated road and the culverts in the following finding:
“(7) Plaintiff also constructed an elevated road between the SE/4 of Section [16] and the SW/4 of section 15. The effect of the road was to impound waters, irrigation and rainfall runoff upon section 16, however the plaintiff subsequently placed two 18” culverts through the road for the passage of waters. There was no attempt to make any determination of the relative elevations of the culverts or the effect of the discharge of water or the amounts thereof through such culverts upon the defendants.”
The elevated access road may fairly be considered to be a dam or levee obstructing, collecting or discharging with increased force surface water as contemplated by K.S.A. 24-105. See Simon v. Neises, 193 Kan. 343. Even if plaintiff’s elevated access road should not be termed a dam or levee, the rule in Kansas now is that as to agricultural lands outside the incorporated limits of a city, upper proprietors may not divert their surface waters by artificial means onto the lands of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners. Goering v. Schrag, 167 Kan. at 501.
We can see the possibility of future differences between these parties. There will be dry times. Injunctions are subject to modification. But we are concerned only with the issues now before us. It appears that the parties’ interests would be best served by a voluntary mutual accommodation. They are in a better position than the courts to effect practical resolution.
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Abbott, J.:
This is an action brought by plaintiff corporation for actual and punitive damages against a former director and his principally owned corporation for breach of contract, gross and wanton negligence, fraud, and breach of fiduciary duty.
The trial judge rendered a judgment by default against the defendants, pursuant to K.S.A. 60-237, for failure to comply with discovery orders. Evidence was then heard by the trial judge, who awarded actual damages of $6,308.87 and punitive damages of $5,000 to the plaintiff. The defendants appealed, arguing that the court lacked jurisdiction, and that the court erred in rendering default judgment, in not granting a continuance, and in rendering a judgment for compensatory and punitive damages.
1. Defendants first argue that the trial court did not have jurisdiction over the “issues” in this case. This argument is based on plaintiff’s failure to comply with statutory procedure in amending its petition. Plaintiff first filed a petition which de fendants concede was properly served. Defendants answered and counterclaimed for a debt due from plaintiff. Plaintiff then filed its first amended petition without obtaining either the leave of court or the written consent of the adverse party as required by K.S.A. 60-215(a). The first amended petition changed the case from an injunction action to its present form and so involved a new and different cause of action from the original petition. Later, by oral motion heard ex parte, plaintiff obtained permission of the court to file a second amended petition which enlarged the first amended petition. Defendants’ attorney, whose services were subsequently terminated by defendants, was served a copy of the first amended petition. The second amended petition was served on defendants by summons on March 2,1977, as though it had been an original action. Defendants were not represented by counsel when the second amended petition was served. Defendants did not attempt to file an answer to either the first or second amended petition until the morning of trial.
If we understand defendants’ argument correctly, they contend that the filing of the first amended petition without leave of court deprives the court of jurisdiction since it involved different subject matter than the original petition, and that if the court is without jurisdiction on the first amended petition the fact it granted permission to file the second amended petition would not confer jurisdiction. Defendant correctly points out that K.S.A. 60-207 requires that a motion which is not made during a hearing or a trial shall be made in writing, and that the oral application for ex parte permission of the court to file a second amended petition does not comply with the statutory requirements.
Defendants concede that they are unable to show any prejudice as a result of plaintiff’s failure to follow statutory procedure in amending its petition. The original petition and second amended petition were personally served on the defendants and the first amended petition was served on defendants’ counsel. No objection was raised by defendants or their counsel concerning the amended petition prior to trial.
We are of the opinion the defect here is not jurisdictional in nature (Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 [1976]) and certainly does not involve subject matter jurisdiction. K.S.A. 1978 Supp. 20-301, et seq. Therefore, the defendants, having failed to raise the issue in the trial court, are now barred from raising it on appeal. Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978); In re Estate of Barnes, 218 Kan. 275, 543 P.2d 1004 (1975). The defendants further waived the defense of lack of personal jurisdiction because of their failure to assert the defense within the time prescribed by statute. Haley v. Hershberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971).
2. Defendants next complain that the trial court abused its discretion in rendering a default judgment against defendants for failure to make discovery.
After the suit was filed, plaintiff sought to obtain its records and ledgers from defendants by filing a motion for production of documents. Defendants requested and received several continuances over a two-month period until the court issued an order to produce the documents. Most of the documents sought were transferred, but some key documents were not produced.
A second motion for production and a set of interrogatories were served on defendants in March. There was no response. Plaintiff notified defendants that if they failed to appear for trial plaintiff would seek default judgment. The case was set for trial and defendants did not appear at the appointed time. Default judgment was entered against defendants, but the judgment was set aside when defendants appeared later the same morning. The court in setting aside the judgment granted defendants’ oral motion for a continuance in order to grant defendants additional time to obtain counsel.
Plaintiff next filed a motion to compel discovery. When the defendants failed to appear on or respond to the motion, the trial court ordered defendants to produce the documents and answer the interrogatories. That order was personally served on defendants, but was disregarded by them.
The case was then set for trial on May 20, 1977, and a subpoena duces tecum was personally served on the defendant Winslow, ordering him to bring additional records with him. However, he failed to do so.
At the trial, plaintiff made an oral motion for default judgment. The trial court allowed the defendants a hearing to show excusable neglect or good faith in failing to make discovery. The defendants attempted to show they had been hampered in filing an answer, producing the documents, and in answering inter rogatories by not having an attorney and by being unable to obtain their file from a former attorney. The trial judge informed defendants that he was not satisfied with their evidence and offered to allow additional evidence to be presented at 2:00 p.m. that day. Defendants declined to offer additional evidence and default was entered against defendants. Among other things, defendants suggest that the court could have imposed lesser sanctions.
This court recently reviewed the question of abuse of discretion as it relates to rendering a judgment by default for failure to comply with discovery orders in Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 578 P.2d 1138 (1978), where it was stated at 327-329:
“The ultimate question becomes whether the trial judge abused his discretion by imposing the extreme sanction of granting a default judgment against the plaintiff for his refusal to answer the question after being ordered to do so. The trial judge is empowered to impose such sanctions as are just, including but not limited to those set forth in K.S.A. 60-237(b)(2), as follows:
‘(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.’
“It is well established that the dismissal of a cause of action is a drastic remedy to impose as a discovery sanction and should be used only in extreme circumstances. (Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 [1975].) Further, a court should impose sanctions which are designed to accomplish the objects of discovery and not for the purpose of punishment. (Jacuzzi v. Jacuzzi Bros., Inc., 243 Cal. App. 2d 1, 52 Cal. Rptr. 147 [1966].) However, the granting of default judgment against a party who refuses to allow discovery does not violate the due process clause of the Constitution of the United States, as plaintiff suggests, so long as the judgment was entered to compel discovery and not merely to punish. The object of a sanction should be to prevent the party against whom sanctions are being imposed from profiting by his own violation. (Hammond Packing Co. v. Arkansas, 212 U.S. 322, 53 L.Ed. 530, 29 S.Ct. 370 [1909]; City of Mobile v. Wooley, 278 Ala. 652, 180 So. 2d 251 [1965]; Unger v. Los Angeles Transit Lines, 180 Cal. App. 2d 172, 5 Cal. Rptr. 71 [1960]; see, also, 6 A.L.R.3d 715.)
“The Kansas legislature has seen fit to vest discretion in the trial judge as to which sanction he will impose. Thus, the trial judge will be reversed only where no reasonable man would take the view adopted by the trial court.
“The appellate courts of this state have previously handed down three decisions involving the ultimate sanction of judgment by default. (See Vickers v. City of Kansas City, supra; Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 [1974]; Prather v. Olson, 1 Kan. App. 2d 142, 562 P.2d 142 [1977].) From those cases, several tests emerge to aid in ascertaining whether or not a trial court abused its discretion in granting default judgment.
“Initially it must be ascertained whether the discoverable material goes to a dispositive issue in the case. . . . The trial court should next ascertain whether or not the parties seeking discovery may be protected by the imposition of a sanction short of dismissal.”
As stated in Fields, the court should also determine whether the requested documents and information sought in the interrogatories was cumulative or merely corroborative. In this case the information sought was neither cumulative nor corroborative. In addition, the party refusing to allow discovery must be given a full hearing to enable that person to show good faith. As noted earlier, defendants were given a full and complete hearing and, in the opinion of the trial judge, failed to show good faith.
Two factors are of importance to note. First, the defendants did not brief the question of whether written notice must be given to the party failing to make discovery before default judgment can be rendered against them. While defendants did raise that question at oral argument, having failed to raise the issue in their brief and thereby give the other party an opportunity to brief the issue, they may not now raise the issue. We are therefore not deciding whether written notice must be given before the sanction of default judgment is imposed. We do determine that the court had authority to impose the sanction of default judgment against the defendants for failure to make discovery. Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d at 329. Second, the case had been set for trial and both the defendants and their counsel had been informed that no further continuances would be granted, leaving the court with no alternative but to postpone the trial if defendants were given additional time to comply with the court orders. Thus, the trial judge was faced with the defendants’ failure to comply in a situation where a significant part of the requested material and information went to dispositive issues in the case, and where the court had no effective sanctions available. The court could have continued the case, giving defendants additional time to produce and answer under threat of default, and assessed attorney fees and costs. However, on two separate occasions the court had already ordered the defendants to produce and answer the interrogatories, and those orders, as well as a subpoena duces tecum, had been ignored.
The evidence in this case can be fairly interpreted as demonstrating a deliberate course of delay by the defendants. While others might give a different interpretation to the events of the months before trial, it is not this court’s function on appeal to weigh conflicting evidence. We are of the opinion the trial judge did not abuse his discretion in rendering judgment by default against the defendants for failure to make discovery. We further note the record indicates that the issues were presented so fully at the damages hearing that for all practical purposes there was no default. The trial judge recognized as much when he noted in the court records: “Case actually tried as tho contested not [by] default.”
3. Defendants’ contention that the trial judge abused his discretion in not granting a continuance when one was requested on the day of trial is without merit.
It has long been recognized in Kansas that granting or denying a motion for continuance is within the discretion of the trial court. Davis v. Wilson, 11 Kan. 74 (1873). An abuse of discretion will be found by an appellate court only when “no reasonable man would take the view adopted by the trial court.” State v. Wilkins, 220 Kan. 735, Syl. ¶ 4, 556 P.2d 424 (1976).
In the case of Houser v. Frank, 186 Kan. 455, 350 P.2d 801 (1960), the defendant knew one month before trial that it would be necessary to retain an attorney to represent him if he desired counsel. Defendant retained counsel at 3:30 p.m. on the afternoon before trial and the next day argued vigorously for a continuance. The requested continuance was denied. The Supreme Court affirmed that decision, stating the defendant had adequate notice of his need for substitute counsel and the impending trial date. This result is supported by other Kansas opinions which require a party seeking a continuance to demonstrate diligence in its efforts to bring the case to trial. See Fouts v. Armstrong Commercial Laundry Distributing Co., 209 Kan. 59, 495 P.2d 1390 (1972); see also 17 Am. Jur. 2d, Continuance § 12, p. 129.
Here, defendants, having discharged their attorney of record, had known since December 1976 that they would be employing new counsel for the trial. Counsel for defendants was allowed to withdraw on January 7, 1977. The case had been previously set for trial on April 28, 1977, and default judgment entered against defendants for their failure to appear. The default judgment was set aside and the case rescheduled for trial on May 17, 1977, to give defendants opportunity to secure counsel. On May 12, 1977, defendants requested a continuance which was granted until May 20, 1977. The defendants were informed then that no further continuances would be granted. On May 17, 1977, defendants’ new counsel appeared and informally requested a continuance, which was denied. On May 20, 1977, the trial date, defendants again requested a continuance. The trial judge heard evidence from defendants as to why they were not prepared, denied the motion for a continuance and started the trial at 2:00 p.m. that day. We cannot say that no reasonable person would take the view of the trial judge and therefore do not find that he abused his discretion.
4, Defendants next argue they were denied due process in that they were not given a “fair” trial for the following reasons:
A) The denial of the right to try the issue of damages before a jury. Defendants did not request a jury trial either in their pleadings or at trial. Having failed to timely request a jury trial as required by statute, K.S.A. 60-238 acts as a waiver of their right to do so. Horton v. Montgomery Ward, 199 Kan. 245, 428 P.2d 774 (1967).
B) The denial of their request for a pretrial conference. Likewise, defendants did not request a “discovery” conference pursuant to Rule No. 136 (223 Kan. lxii). They did request a pretrial conference on the morning of trial. Such a conference must be held at least two weeks prior to trial (Rule No. 140, 223 Kan. Ixv). That motion was denied, and rightly so. Defendants, by not timely requesting a conference, waived the same.
C) The trial court’s procedure in determining damages. If we understand defendants’ third point dealing with their argument that defendants were denied due process, they object that the scope of the trial which started on June 3 and ended on June 17, 1977, went beyond the question of damages and into the matter of liability itself. Many of the issues of liability heard went to the question of punitive damages. The trial judge did note on the record that there was actually a trial and that defendants were permitted to proceed as though they were “trying the case rather than having a hearing on default.” Although the procedure followed was unorthodox, it did not result in prejudice to the defendants.
5. Defendants next attack the findings of the trial court as being unsupported by the evidence and the law.
When an appeal attacks the adequacy of the trial court’s findings, it faces a heavy burden, for our scope of review is limited to ascertaining whether there is substantial competent evidence to support the trial court’s findings and not with whether the evidence might have supported contrary findings. We do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 259, 531 P.2d 428 (1975). Nor can this court nullify a trial court’s belief of evidence or determine the persuasiveness of evidence which the trial court may have believed. Fox v. Wilson, 211 Kan. 563, 507 P.2d 252 (1975).
Defendants complain that their testimony was more credible than plaintiff’s and that their testimony was undisputed on some points. The trier of facts is not obligated to accept and give effect to evidence which he considers to be unreliable, even if such evidence is uncontradicted. Beard v. Montgomery Ward & Co., 215 Kan. 343, 348, 524 P.2d 1159 (1974). The trial court here plainly did not believe defendants’ testimony on a number of points and commented that some of it was “simply incredible” in the face of other evidence. Plaintiff introduced evidence that defendants were in violation of the strict fiduciary duty which Kansas imposes on the officers and directors of a corporation as a result of the fiduciary relationship. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. at 259-260; Stewart v. Harris, 69 Kan. 498, 77 Pac. 277 (1904). Evidence was introduced that defendants made a secret profit from a van ultimately sold to the corporation on a lease-purchase agreement; that expensive life insurance policies were purchased from companies which defendant Wins-low represented in his insurance business, and that those premiums were paid by defendants out of plaintiff’s funds at a time when plaintiff’s company was unable to meet its other financial obligations; and that commingling of funds occurred. The bur den then shifted to defendants to firmly establish the fairness of these transactions by fully disclosing the facts and circumstances underlying them. Stewart v. Harris, 69 Kan. 498; Geddes v. Anaconda Mining Co., 254 U.S. 590, 65 L.Ed. 425, 41 S.Ct. 209 (1921); 76 Am. Jur. 2d, Trusts § 230, p. 453. The trial court found that defendants failed to do so.
The award of damages for the incorporation fees and monthly service charges was within the court’s discretion, for an unfaithful fiduciary is liable for the amounts that have been paid from the very beginning if the fiduciary’s conduct has been untrustworthy from the start, and the fiduciary may also be required to forfeit the compensation he otherwise would have earned. Bessman v. Bessman, 214 Kan. 510, 520 P.2d 1210 (1974). Such conduct by a fiduciary may include commingling of funds (In re Estate of Jones, 174 Kan. 506, 257 P.2d 116 [1953]) or self-dealing for his own profit (Vincent v. Werner, 140 Kan. 599, 38 P.2d 687 [1934]). As to the life insurance premiums, see Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 515 P.2d 757 (1973). Without unduly prolonging the opinion, it is sufficient to say that we have examined the record and find there is substantial competent evidence to support the trial court’s findings.
6. Defendants argue that any liability should have been imposed upon the defendant corporation and not upon defendant Winslow on the theory that since plaintiff benefited by services performed by the corporation it should be estopped to deny that corporation’s existence by seeking recovery from Winslow individually. This point was not raised at trial and need not therefore be considered on appeal. Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527. Even if we were to consider the argument, it has no merit in view of the pleadings and the evidence presented at trial. In plaintiff’s second amended petition, the defendants were put on notice that plaintiff intended to use the alter ego doctrine in an attempt to pierce the corporate veil and hold the defendant Winslow personally liable as well as to show that the corporation was no longer in existence and was not legally in existence at the time the acts complained of took place. In defendants’ answer, defendant Winslow admitted personal responsibility for the acts of the defendant corporation. At trial, defendant Winslow again took full responsibility for the acts committed by the corporation, a fact recognized by the trial court. By the time of trial, the defendant corporation’s charter had been revoked.
We also note the trial judge specifically found there had been a commingling of plaintiff’s funds with those of defendant Wins-low, and that it was defendant Winslow who had breached the fiduciary duty. Therefore, he is directly liable whether the corporation is also liable or not. Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 567 P.2d 1337 (1977).
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Parks, J.:
This is an appeal by plaintiff-appellant in an action for negligent trespass. The trial court granted summary judgment in favor of the defendant on the ground that the plaintiff was not the real party in interest and was therefore barred from bringing the action by K.S.A. 60-217(a).
The facts are simple and are not in dispute. On December 28, 1974, the home of Cecilia Thompson was struck by a car driven by Jeffrey James. The building and contents were extensively damaged, and Ms. Thompson filed a damage claim with her insurer, Maryland Casualty Company. On December 22, 1976, Ms. Thompson signed a sworn proof of loss statement in which she designated her “whole loss” as $8,190.07, which sum she actually received from the insurer. At the same time, she signed a subrogation agreement by which all rights, claims, and interest that she may have had were subrogated to Maryland Casualty.
The next day, Ms. Thompson filed suit in the district court of Johnson County against Jeffrey James. The suit sought additional damages that arose from the accident which were above and beyond the coverage provided by the homeowner’s policy— damages which eventually were claimed as totaling $5,784. James raised as a defense the fact that Ms. Thompson had been compensated for her losses, had signed a subrogation agreement, and was no longer a real party in interest to any action arising out of the accident. The trial court found this reasoning persuasive and granted summary judgment for defendant, despite plaintiff’s claim that since she was seeking damages not covered by her policy and for which she had not been compensated, she was still very much a real party in interest. The sole substantive issue before this court on appeal is whether plaintiff was in fact a real party in interest.
Before dealing with the main issue, however, a jurisdictional challenge by defendant must be dealt with. Defendant’s assertion that this court is without jurisdiction to hear this appeal is best understood when considered in the context of the procedural history of this case.
On August 18, 1977, the trial court granted defendant’s motion for summary judgment, though due to an inadvertent delay the resulting order was not sent to plaintiff’s counsel until September 2. Although the record fails to disclose it, plaintiff soon thereafter moved the court to set aside its order on the basis of excusable neglect, as provided for by K.S.A. 60-260(fe). This motion was granted at a hearing held on October 24, and the plaintiff finished preparing information for the court concerning her losses. The defendant’s motion for summary judgment was heard again on January 13, 1978, and was again granted. Plaintiff’s motion for a new trial was denied, and a timely appeal was filed to this court.
Appellee’s argument is that appellant’s motion under 60-260(b) to set aside the August 18 order cannot be used as a means of circumventing time limits for taking an appeal. As no appeal was taken from the August 18 order within the 30-day period required by K.S.A. 60-2103(a), appellee asserts that this court has no power to review the order.
The appellee is correct in stating that a 60-260(h) motion does not affect the finality of a judgment or suspend its operation, nor does it toll the time for filing a notice of appeal from such judgment. Giles v. Russell, 222 Kan. 629, Syl. ¶ 2, 567 P.2d 845 (1977). Where no appeal is taken from a judgment within the 30-day time limit, and where the only motion filed is one pursuant to 60-260(b) which is denied, an appellate court has no jurisdiction to review the underlying judgment. Giles v. Russell, 222 Kan. at 632.
The situation here, however, is different from that in Giles. The appellant-plaintiff filed a motion to set aside the August 18 order sometime in early September. This motion was granted on October 24, and since no appeal was taken, became final 30 days later. Satterfield v. Satterfield, 221 Kan. 15, 558 P.2d 108 (1976); Taber v. Taber, 213 Kan. 453, 455, 516 P.2d 987 (1973). Once the order setting aside the earlier order became final, the effect of summary judgment was vacated and the lawsuit continued. While more than 30 days did elapse between the grant of summary judgment and the order vacating it, this is of no importance due to the outcome, i.e., the plaintiff was successful and did not need to appeal. Only if she had lost would a situation like that in Giles have arisen. This court’s jurisdiction has been properly invoked.
The trial court’s eventual grant of summary judgment was on the ground that the plaintiff was not the real party in interest (as required by K.S.A. 60-217[a]) since she: (1) signed a proof of loss statement to her insurance company stating that the “whole loss and damage” amounted to $8,190.07, which the company paid in full, and (2) signed a subrogation agreement releasing to the insurer all of her rights and claims under the policy. On the other hand, plaintiff asserts that the trial court erred because her policy did not cover all of her losses and expenses. Accordingly, she is the real party in interest because she is only seeking to recover the losses and expenses which were not covered by the policy.
K.S.A. 60-217(o) requires that every action be prosecuted in the name of the real party in interest. The real party in interest is the person who possesses the right sought to be enforced, and is not necessarily the person who ultimately benefits from the recovery. Lawrence v. Boyd, 207 Kan. 776, Syl. ¶ 1, 486 P.2d 1394 (1971). The real party in interest requirement has as one of its main purposes “the protection, of the defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party.” Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d 954 (1971).
The deciding factor in the application of 60-217 is whether the amount received is in full or only partial satisfaction of the loss. Cullen v. Atchison, T. & S. F. Rly. Co., 211 Kan. 368, 374, 507 P.2d 353 (1973). If the amount received is in full satisfaction of the loss, the insurer is the real party in interest; if the amount received is only partial, it is the insured. As the court stated in J. C. Livestock Sales, Inc. v. Schoof, 208 Kan. 289, 290-291, 491 P.2d 560 (1971):
“When a loss is covered but partially by insurance, the insured is the proper party under this statute to bring suit for the entire loss. The insured will then hold in trust for the insurer such part of the recovery as the insurer has paid. (Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, Syl. ¶ ¶ 1 and 2, 403 P.2d 185; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P.2d 359.)
“When such loss is fully covered and paid the rule is otherwise, provided the policy of insurance contains a subrogation clause whereby the insurer succeeds to rights of the insured.
“When a loss is fully paid by an insurer and the insurer becomes subrogated to all rights of the insured, the right of action against the wrongdoer vests wholly in the insurer. In such case the insurer becomes the real party in interest and must undertake the maintenance of the action for reimbursement. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459; Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, 255 P.2d 658.)”
It is true, as the trial court noted, that the plaintiff signed a proof of loss form which stated that her “whole loss” amounted to $8,190.07, which the insurer paid in full. We conclude, however, that the term “whole loss” as used in the insurance statement is not equivalent to the total loss resulting from the accident. The former term only encompasses the loss which is covered by the insurance policy, which in this case was limited to the structure, unscheduled personal property therein, and certain additional living expenses while the house was being repaired. It is the total loss resulting from the accident, not the loss covered by insurance, which is the deciding factor in the application of 60-217.
That the “whole loss” covered by the policy is not equivalent here to the total loss resulting from the accident is demonstrated when the list of items attached to the proof of loss statement is compared with plaintiff’s own list of the items for which she was not compensated by her insurer. Certain items on the former list are checkmarked, indicating that they were not covered by the insurer. At least six of these items not paid by the insurer appear on plaintiff’s own list of items, which forms the basis for this suit.
While it is not clear that plaintiff could actually recover for any or all of the items claimed (medical bills, prescription drugs for her nervous condition, loss of salary, etc.), this is a proceeding based on summary judgment, and in such cases there must be no genuine issues of material fact before such a disposition will be allowed. Western Surety Co. v. Loy, 3 Kan. App. 2d 310, 311, 594 P.2d 257 (1979); Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805 (1977). From the evidence presented, it is clear that the $8,190.07 which the plaintiff received from her insurer did not cover some items that she claims as damages, and therefore constituted only partial satisfaction of the total loss she feels was caused by the accident. Under the rules stated in J. C. Livestock, plaintiff is a real party in interest and may properly bring suit.
The fact that plaintiff signed a subrogation agreement does not change this result. In City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P.2d 836 (1944), the court discussed the rules applicable to situations in which an insurance policy contains a subrogation clause. One such situation was described by the court as follows:
“Where the loss has not been fully covered by the insurance payment, and the property owner still asserts a claim against the wrongdoer. In this case both he and the insurer are real parties in interest, but action should be brought by the property owner, who will hold as trustee for the insurer in respect to such part of the amount recovered as the insurer has been compelled to pay under the policy. If, in such a situation, the property owner refuses to bring action, justice requires that the insurer be permitted to bring the action.” (p. 186.)
The subrogation agreement here contains similar language in that it subrogates the insurer, to the extent of its discharged liability, to all of the insured’s rights, claims, and interest. For this reason, the rule announced in Tice is applicable to the instant case insofar as the total loss caused by the accident has not been fully covered by the $8,190.07 payment and plaintiff still asserts a claim against the defendant.
While the fact that the insurer and the defendant have already reached a settlement is a complicating factor, it too does not change the result. If there were no settlement, the plaintiff would be entitled to bring suit for the entire loss and hold in trust for the insurer that part of the recovery representing the claims which the insurer has paid. Since a settlement has already been made, the plaintiff is only entitled to bring an action for the claims not covered by the insurance policy, as the subrogation agreement bars any recovery on the claims which the insurer has already paid. The other arguments of appellee on this point are rejected as being without merit.
We conclude that the trial court erred when it found that plaintiff was not a real party in interest, because the total loss caused by the accident was not covered by the settlement, and further suit was not precluded by the subrogation agreement.
The order granting summary judgment to defendant is reversed, and the case remanded to the trial court. | [
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Meyer, J.:
This is an action by the claimant, Helen Baum, to recover compensation. The workmen’s compensation fund (fund) was made a party to the proceedings upon motion by the respondent and its insurance carrier. The workmen’s compensation examiner entered an order dismissing the fund from the case on the basis that respondent had failed to give notice of claimant’s preexisting handicap to the workmen’s compensation director as provided by statute. The district court sustained the examiner’s order dismissing the fund and the respondent and its insurance carrier appeal.
The issue herein is whether an employer who has paid the employee three prior settlement awards is required to file notice of handicap with the workmen’s compensation director as per K.S.A. 1977 Supp. 44-567(o).
Claimant was an employee of respondent at their plant in Topeka, Kansas. She had been employed continuously by respondent for approximately 23 years.
On January 22, 1958, claimant was injured and received a five percent disability settlement from respondent. This settlement was reduced to an award and filed in the office of the workmen’s compensation director on June 27, 1958.
On July 13, 1962, claimant was injured and received a seven percent settlement from respondent. That settlement award was also filed with the workmen’s compensation director’s office on May 7, 1963.
On December 13, 1968, claimant was again injured and received a ten percent disability settlement from respondent. This settlement award was entered and filed in the director’s office on August 20, 1969.
On or about September 15, 1977, while claimant was still working for respondent, she received the injury upon which the present action is based.
The fund was impleaded, but on February 1, 1978, it filed a motion to be dismissed for the reason that the respondent had failed to file a notice of handicapped employee with the office of the director of workmen’s compensation as required by K.S.A. 1977 Supp. 44-567(o) and the director’s rule 51-1-22.
On November 8, 1978, the district court found that since there was no statutory notice by the respondent in reference to claimant’s preexisting bad back, the respondent had failed to comply with the notice statute and that the fund should therefore be dismissed from these proceedings. The court denied the fund’s claim for attorney fees.
Respondent and its insurance carrier appealed from the district court’s order dismissing the fund, and the fund filed a cross-appeal on that part of the court’s order denying its request for allowance of attorney fees.
It is appellants’ theory herein that since the former awards (being in 1958, 1962, and 1968) were filed with the workmen’s compensation commissioner that this constituted notice, and that therefore the failure to give specific notice is irrelevant because the workmen’s compensation commissioner already had the proof of the preexisting condition in his files.
The gist of appellees’ argument on the other hand is (1) the preexisting settlements, while filed with the compensation commissioner, were not filed by the employer; and (2) that it would be ridiculous for the compensation commissioner to keep a running log of all previous injuries.
The pertinent statute, K.S.A. 1977 Supp. 44-567(c), in part, states as follows:
“An employer operating within the provisions of the workmen’s compensation act who employs a handicapped employee . . . and who prior to the occurrence of a compensable injury to a handicapped employee establishes knowledge of the preexisting handicap by filing a notice thereof, together with a description of the handicap claimed with the workmen’s compensation director . . . shall be relieved of liability for compensation awarded . . . (Emphasis added.)
The wording of the above statute is not ambiguous in any way. To us the meaning of this statute is clear and requires that the employer notify the workmen’s compensation director of a preexisting disability. Were we to adopt appellants’ view herein it would be tantamount to our changing that statute to include language to the effect that if prior claims had been allowed by the director that this would constitute knowledge. However, where there is a direct absence of following a clear requirement of an unambiguous statute, as in this case, we have no license to change the law by judicial interpretation. We conclude that the district court was correct.
Coming now to the fund’s cross-appeal complaining that the district court erred in denying attorney fees to the fund, we conclude as follows: K.S.A. 1977 Supp. 44-566a(f) states in part that “attorneys’ fees incurred by the workmen’s compensation fund may be assessed against the party who has impleaded the workmen’s compensation fund.” It is noted that the legislature has used the word “may” in this statute. To us this means that the matter of awarding attorney fees is at the discretion of the district court. We find no abuse of discretion on the part of the district court in denying these attorney fees.
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Foth, C.J.:
In this case we are asked to find unreasonable a rate schedule for the retail sale of natural gas proposed by the Gas Service Company and approved by the Kansas Corporation Commission. We are unable to so find.
The issues in this case were first raised on December 9, 1976, when the Company filed an application for a rate increase with the KCC. That application was assigned Docket No. 110,038-U. Appellant Midwest Gas Users Association intervened in that proceeding. Midwest is an association, many of whose members are customers of the Company who are assigned to an “interruptible” status. When total demand on the Company’s system exceeds its capacity, service to interruptible customers may be curtailed or cut off. Interruptible customers who wish to continue operations during foreseeable periods when their gas supply is cut off necessarily have available alternative sources of fuel and the physical capacity to utilize such alternatives. Appellant Seymour Foods, Inc., is an industrial “interruptible” customer who separately intervened, but who joined Midwest in all previous proceedings and in this court. We thus have no issue as to Midwest’s standing, and all references to “Midwest” are equally applicable to Seymour.
Midwest’s objection to the Company’s application went not to the amount of the requested increase but to the proposed rate structure. Its claim was that the rate schedule placed too much of the burden of the increase on “interruptible” customers and too little on the Company’s “firm” customers, such as residential users, who have a guaranteed supply regardless of demand. The KCC approved the rate schedule and Midwest sought review (under the then provisions of K.S.A. 66-118c) in the district court of Jefferson County. That court affirmed the KCC in November, 1978, and Midwest appealed to this court.
In the meantime, on January 30, 1978, the Company filed a second application for a rate increase, including a new rate schedule. That proceeding was assigned KCC Docket No. 113,728-U. Midwest (and Seymour) again intervened making the same objections to the proposed rate structure. The KCC authorized part of the rate increase sought, and in its order again approved a rate schedule containing the same features deemed objectionable by Midwest in the first proceeding. Midwest again sought judicial review, this time in this court under the 1978 amendment to K.S.A. 66-118a giving us exclusive jurisdiction of such proceedings, in lieu of the district court. (L. 1978, ch. 265, § 1, effective July 1, 1978.) The review proceeding in this court was commenced while the earlier proceeding was still pending in the district court.
The two proceedings were consolidated in this court. The KCC and the Company moved to dismiss the appeal in the earlier proceeding on the grounds of mootness, citing Six Cities v. State Corporation Commission, 213 Kan. 413, 516 P.2d 596 (1973). That position may technically be correct, since the later rate schedule supersedes the earlier one and, since no stay bond was posted, revenues collected under the earlier schedule are not subject to refund. We nevertheless decline to dismiss because of the close interrelationship of the two proceedings, including an identity of issues and the fact that the order entered and much of the testimony taken in the earlier proceeding were relied on and incorporated by reference in the later one. While our discussion is largely in terms of the later proceeding, it applies in principle to both. Since we affirm in both, the result is the same.
I.
It should be noted at the outset that neither of the rate increases sought was based on the increased cost of gas to the Company. Higher prices from the Company’s wholesale supplier (Cities Service Gas Pipeline Company), when authorized by the federal regulatory agency, are passed on to the Company’s retail customers by “purchased gas adjustments.” Those price increases are preauthorized by the KCC and do not require KCC approval each time they are encountered, although their effect will later be incorporated in a proposed rate which is submitted for approval. Rather, the increases sought here are the result of increased operating expenses.
As previously noted, Midwest’s objection is not to the amount of the total rate increase allowed, but to the manner in which the increase is to be spread among the Company’s customers. That proposal is to increase the rates charged to each customer by a uniform amount (the proposal was $.0435) per thousand cubic feet (Mcf) of gas consumed. This makes the increase proportionately higher for “interruptible” customers because they have always paid lower rates than the Company’s firm customers. Although the rate schedule covers a number of different classes of customers, the following incomplete and highly condensed table from the latest application will illustrate the result:
base rate increase new rate percentage increase
Domestic & small commercial/industrial (firm customers) $2.9589 .0435 $3.0024 1.47
Large commercial (interruptible) $1.1476 .0435 $1.1911 3.79
Large industrial (interruptible) $1.1449 .0435 $1.1884 3.80
The “base rate” is the charge per Mcf for the first “block” of gas consumed each month. Rates decrease as usage increases, with lower rates prescribed for each additional block.
The historical justification for the rate discrepancy demonstrated has been this: A utility must have the plant and distribution capacity to meet its firm customers’ peak demand — for a gas company, the winter months. During the slack season there will necessarily be excess capacity; the interruptible customers take the product during the slack season with only a minimal cost to the utility for additional distribution lines, thus purchasing a commodity that would otherwise go unsold. Any revenue from such sales over the direct cost of making them helps meet fixed costs. Thus such sales, even at reduced rates, are seen as benefiting the firm customers by permitting the reduction of their rates by the amount of “profit” derived from the interruptibles, while preserving the utility’s overall return on its rate base. The rates set seek to achieve a balance between the elements of demand and the quantity of the commodity consumed.
Application of this rationale in the past has resulted in the above schedule, whereby domestic and other firm customers pay something over 2% times as much for gas as large commercial and industrial users. The proposed increase, at a flat rate per Mcf for all customers, will have a tendency to reduce the disparity, although obviously it is far from eliminating the price concession made to interruptible customers.
II.
K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the order is “lawful” or “reasonable.” Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is “lawful” if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered “reasonable” if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experi ence as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).
III.
The primary issue in this case is whether the KCC could lawfully adopt as it did a “volumetric” rate structure, or whether it was required to apply a uniform percentage increase to the existing base rates. In a case such as this a volumetric rate design and a uniform percentage rate design differ not only in their effect, but also in the factors which are relevant in their application. When a uniform percentage approach is adopted, the primary factor is the cost of service — the amount of money expended by a utility in providing service to each of its customers — which is built into the existing rate design to which the percentage is applied. When a volumetric approach is adopted, the primary factor is the value of service — the capacity and willingness of different customer groups to bear increased costs, and the intrinsic value of the commodity furnished. A uniform percentage approach looks to conditions on the supply side of a utility’s market, while a volumetric approach focuses on the demand side of the market.
At the hearing before the KCC there were two primary witnesses on this issue. William R. Chaney, for the Company, testified in favor of the volumetric approach embodied in the rate schedule proposed by the Company and approved by the KCC. Stanley C. Whiteaker, for Midwest, presented his cost analysis of the Company’s business. He concluded that the interruptible customers were already subsidizing the firm customers, and that any percentage increase in interruptible rates over the percentage increase in total revenue approved would result in an even greater subsidy.
The KCC rejected Mr. Whiteaker’s cost study and in its findings on this issue adopted Mr. Chaney’s testimony virtually verbatim:
“VII. RATE DESIGN
“28. The rate design testimony by W. R. Chaney, Applicant’s witness and Stanley C. Whiteaker, the witness for Midwest Gas Users Association and Seymour Foods, Inc., was incorporated in its entirety from the Applicant’s previous rate case in Docket No. 110,038-U, and administrative notice was taken of all rate design exhibits therein. Both witnesses appeared, but only for the purposes of additional cross-examination by the parties including that by intervenor, Rhodina Montgomery who is represented by Kansas Legal Services Corporation (KLSC) and was not a party to the last rate proceeding involving this Applicant.
“The Applicant’s proposal is to increase rates over the four basic service classifications, general service, small commercial/industrial service, large commercial service and large industrial service on a uniform cents per MCF basis. Intervenors Midwest and Seymour again recommend that rate increases be spread among the various classes on a uniform percentage basis consistent with a cost of service rationale. Intervenor Rhodina Montgomery suggested the large industrial users be curtailed from nonessential uses of natural gas and that sales for other industrial uses be at the margin, or replacement cost.
“The four basic service classifications historically employed by the Applicant have had separate rate schedules within each class. This has served to recognize differences in load and cost characteristics associated with the service afforded to the various customers. These classifications recognize differences in costs to provide services according to the classes which have been historically determined. Continued recognition of these differences is consistent with the principle that the customers should be billed on a rate schedule applicable to all customers with similar load and cost characteristics. However, the significance of the historical differentials in rates which have existed in the past is becoming less important and should be further reduced at this time consistent with the Commission’s orders in Docket No. 110,038-U. Consideration must be given to the economic impact on the company and its consumers resulting from the ever-deteriorating reserves of natural gas. As existing supplies of gas are consumed it will be necessary to replace them at higher prices in order to maintain an adequate reserve for the future load requirements of the company. We have recognized in Docket No. 106,210-U that industrial sales are of a lower priority use for natural gas, and we conclude that current charges for lower priority services should recognize the effect of making lower priority sales at the present time. This necessitates the imposition of higher current prices in order to replenish existing supplies of gas at higher levels of cost. We recognize the fact that natural gas prices for additions to reserves are constantly increasing. Spreading the rate increase we have granted in this docket on a volumetric basis is consistent with our treatment of this issue in Docket No. 110,038-U, and to a certain extent has the effect of replenishing existing gas supplies at the higher levels of cost.®
“Prior to the time that the natural gas shortage became apparent, the incremental unit cost to the company of acquiring new gas supplies was ordinarily equal to or only slightly higher than the average unit cost of the existing supply. In that situation the average unit revenues derived from the sale of gas exceeded the incremental unit cost of the gas, and each sale of natural gas produced some allowance to meet fixed and operating costs of the system. The current level of costs required to obtain new gas supplies presents a situation where the differential in price' between new gas and flowing gas Could exceed the historical differential provided in commercial and industrial rates to meet the fixed and operating costs of the system, and it appears to us that the incremental unit cost for new gas might exceed the average unit revenues for the lower priced rate schedule customers. Rates must be fair and reasonable between customer classes. It is essential that current rate design consider the prices which are required to cover the incremental cost of acquiring new gas supplies.
“Also to be considered is the fact that the cost of new gas should not necessarily and in all cases be equally assessed to all customer classes. The cost of new gas in this case should apply to those customers who would have been less likely to receive service in the future had the new supply not been made available. The pricing design proposed by the company and adopted by the Commission will provide that the lowest service priority customer, who would be curtailed first due to gas supply deficiencies, be priced at least in part on the basis of the current cost of the gas for the service provided to him. If we did not recognize this principle, it is possible that low priority users could receive gas at prices below the per MCF incremental cost thereof, and this would consequently result in their subsidization by customers served under the higher rate schedules.
“A consideration of costs and rate design cannot be complete without a recognition of the relative risks to the company involved in serving the different customer classes. It appears to us that the risk of serving industrial customers is greater than the risk associated with service of domestic customers. One factor involved in this phenomenon is the ability of industrial customers to convert to alternate fuels, and thus leave the company without a portion of their planned market.
“We must reject the proposal of Intervenor, Rhodina Montgomery, that industrial customers who are not curtailed should only be allowed to purchase gas on a marginal or incremental cost pricing basis since this consideration is not adequately supported by the record. We further find that the proposal for a uniform percentage increase to preserve historical costs of service differential is inappropriate with the continuing diminution of the natural gas reserves. We therefore find that the rate design proposed by the company, which spreads the rate increase on a uniform cents per MCF basis, meets the statutory requirements of K.S.A. 66-107 and is hereby approved. The Applicant shall, therefore, file rate schedules and tariffs to recover the increase in revenues granted consistent with this finding.”
The sentence marked by the asterisk was the subject of a clarifying statement in the KCC’s order denying rehearing:
“The last portion of this sentence does not accurately reflect what the Commission intended since in and of itself, volumetric rates will not help to replenish supplies. What the volumetric rate will do, however, is to place the burden of replenishing supplies on the class of customers, i.e., interruptibles, which necessitate the purchase of new gas.”
It is Midwest’s position that the volumetric rate increase is unreasonable because it ignores the cost of service to each class of customers. Only by a cost of service analysis, it says, can just and nondiscriminatory rates be determined.
IV.
Our reading indicates that the debate over cost-of-service versus value-of-service has been the concern of utility executives, regulators, engineers, and economists. See e.g., Garfield and Lovejoy, Public Utility Economics, ch. 10 (1964); Bonbright, Principles of Public Utility Rates, ch. IV-V (1961); Brown, Value of the Service as a Ceiling on Public Utility Rates, 33 Calif. L. Rev. 283 (1945); Edgerton, Value of the Service as a Factor in Rate Making, 32 Harv. L. Rev. 516-556 (1919); Bauer, Transforming Public Utility Regulation, ch. XIII (1950); Lander, Public Utility Rate Design: The Cost of Service Method of Pricing, 19 St. Louis U.L.J. 36-55 (1974); Ileo and Parcell, Economic Objectives of Regulation — The Trend in Virginia, 14 Wm. & Mary L. Rev. 547-566 (1973).
As affecting rate design, the competing arguments have been directed to regulatory agencies with varying results; when directed to courts, the idea that cost of service data is legally required has been universally rejected. A. few examples will illustrate.
A. Electric utilities. In Globe Metallurgical v. Pub. Util. Comm., 40 Ohio St. 2d 40, 319 N.E.2d 360 (1974), interruptible customers challenged an increase in their rates as part of a general rate increase because there had been no cost study justifying their share of the increase. The court rejected the challenge, saying, “We find no statutory requirement . . . as to the necessity of the commission making cost of service determinations relative to specific rate classifications.” (p. 41.)
Similarly, in Cleveland Elec. Illuminating Co. v. Pub. Util. Comm., 42 Ohio St. 2d 403, 330 N.E.2d 1 (1975), the court approved a rate structure designed without the benefit of a cost study. While cost studies could be required by the commission under Ohio statutes, whether to do so was discretionary. The court concluded: “Thus, the Commission was not required to make the cost of service allocation for classes of customers as contended by the City.” (p. 428.)
In General Motors Corp. v. Pub. Util. Comm., 47 Ohio St. 2d 58, 351 N.E.2d 183 (1976), the challenged rate structure decreased charges for small users, but increased rates as use increased — that is, the customary decline in block rates was “flattened.” The justification offered by testimony in support of the rates was the need, in the light of the energy shortage, to discourage rather than encourage large use as had been past practice. The court, conceding that the changes were not based on cost of service, observed:
“This testimony also points out the fact that cost-relatedness, although one of many factors to be considered in rate making, is not the sole criteria for allocating allowable gross revenue requirements among various classes of utility users. Clearly, the record and this court’s examination of outside sources establish the fact that it is impossible to allocate the fixed costs of a utility to particular customers. Any such attempt to recover costs from customers must ultimately require judgment based upon a determination of what is a just and reasonable rate.
“Appellant’s contention that certain types of evidence are required to support a modification of rate structures is rejected by this court. Globe Metallurgical v. Pub. Util. Comm. (1974), 40 Ohio St. 2d 40, [319 N.E.2d 360].” (p. 75.)
In Apartment Hse. Coun. of Met. W. v. Public Serv. Com’n, 332 A.2d 53 (D.C. 1975), the rate increase fell heaviest on apartment houses and lightest on residential users. The court approved despite the absence of cost data, saying:
“Finally as to cost factors, AHC’s reliance on PEPCO’s failure to present specific cost data for each customer class is misplaced. It is not necessary that differences in rate of return be specifically and quantitatively supported by customer class-cost considerations. The Supreme Court has stated that ‘[alllocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts. It has no claim to an exact science.’ Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 589, 65 S.Ct. 829, 833, 89 L.Ed. 1206 (1945). Moreover, equal return from customer classes is not required. Differences can be based not only on quantity, but also on the nature, time, and pattern of use so as to achieve reasonable efficiency and economic operation. A rule of thumb is that a rate structure must achieve the lowest price for the largest possible number of users.” (p. 57.)
B. Water. In West Allis v. Public Service Comm., 42 Wis. 2d 569, 167 N.W.2d 401 (1969), the objection to a water rate increase was that it was merely applied to a prior cost-based rate schedule without a new cost study. The court there held:
“Determining the total revenue requirements of a utility to give it a reasonable return and designing a rate, i.e., by pricing the product to a particular class of customers or to customers within a class to permit the utility to recover the revenue to which it is entitled, are separate processes which entail different and distinct considerations.”
“The commission in designing a rate structure to recover the revenue to which a utility is entitled, as shown by a cost analysis, has wide discretion in determining the factors upon which it may base its precise rate schedule, and is not required to apply a cost-of-service formula to each class of customer or to each customer within a class.”
“Subjective factors which make a strict cost analysis approach to rate design unrealistic, both in attainment and in terms of operation, include (a) the unfeasibility and impracticability of measuring and incorporating specific serving costs to customers in a rate schedule; (b) the fact that the sum of differential or marginal costs would not equal the total costs of the utility’s operations (i.e., the revenues equaling the sum of the costs of all of a utility’s services to individual customers would not be sufficient to recapture the costs of doing business); and (c) the further fact that costs relevant to total revenue requirements are different from those that are sought to be applied in determining specific rates.”
“Extrapolated from the preceding rule are the following principles: (a) Operation by which rates are designed to recover revenues is not reducible to a simple mathematical exercise; (b) there is no rigid formula which must be followed by rate-making agencies in setting rate schedules; and (c) structure of rate schedule is within the province of the Public Service Commission.” Syl. ¶¶ 2-5.
In reaching these conclusions the Wisconsin court reviewed the leading texts on rate making, and also found its conclusions supported by ample judicial authority:
“It is well established that the Commission in designing a rate structure to recover the revenue to which it is entitled, as shown by a cost analysis, has wide discretion in determining the factors upon which it may base its precise rate schedule. It is not required to apply a cost-of-service formula to each class of customer or to each customer within a class.
“The practicalities of rate making were heavily relied upon in Permian Basin Area Rate Cases (1968), 390 U.S. 747, 776, 777, 88 Sup. Ct. 1344, 20 L.Ed.2d 312:
“ ‘The Court has said that the “legislative discretion implied in the rate making power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination as well as that determination itself.” ... It follows that rate-making agencies are not bound to the service of any single regulatory formula; they are permitted, unless their statutory authority otherwise plainly indicates, “to make the pragmatic adjustments which may be called for by particular circumstances.’ ”
“Other cases following the same well accepted principles are Ayrshire Collieries Corp. v. United States (1949), 335 U.S. 573, 593, 69 Sup. Ct. 278, 93 L.Ed. 243 (there is no rigid formula which must be followed by rate-making agencies in setting rate schedules); Mississippi Valley Barge Line Co. v. United States (1934), 292 U.S. 282, 286, 287, 54 Sup. Ct. 692, 78 L.Ed. 1260 (structure of rate schedule is within the province of commission); Fuels Research Council, Inc. v. Federal Power Comm. (7th Cir. 1967), 374 Fed. 2d 842, 846 (operation by which rates are designed to recover revenues is not reducible to a simple mathematical exercise); Pittsburgh v. Pennsylvania Public Utility Comm. (1952), 171 Pa. Super. 187, 215, 90 Atl. 2d 607 (rejected argument by party challenging rate that rate charged should be based on cost of supplying service to the consumer and that cost allocation studies should be made to determine this cost).
“It seems clear that no responsibility rests upon the Commission to make the exacting type of cost study that is urged by the appellants. It is sufficient that there be, as there is here, substantial evidence in the record to support the rate as a whole.” (pp. 577-8.)
C. Telephone. Rate structures of telephone companies have traditionally been based on value of service to the almost total exclusion of cost of service analysis. In Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla. 1976), the rate structure was contested on the ground that “the ‘value of service’ principle on which that structure was based is arbitrary, unfair, and generally less desirable as a rate-making basis than a system based on ‘cost of service’ as the principal criterion.” (p. 310.) The court, taking note that two leading text writers take “exactly contrary” positions on the subject, concluded:
“Obviously, there is a divergence of expert opinion as to the policy of including ‘cost of service’ as an essential element in designing a rate structure. Even were we persuaded to one policy or the other (‘cost of service’ or ‘value of service’ as the essential element) it is not our prerogative to impose that policy upon the Commission. So long as the policy adopted by the Commission comports with the essential requirements of law we may not meddle. The Legislature has reposed in the Commission the responsibility to make just the kind of choice between competing policies in its area of expertise as it has done here.” (pp. 312-13.)
On the other hand, in Mountain States Tel. v. New Mexico State Corp., 90 N.M. 325, 563 P.2d 588 (1977), we find a regulatory commission rejecting a rate schedule because the utility put forward value of service evidence but not the cost of service data the commission required. The court remanded to the commission, finding that the value of service evidence offered was sufficient for the fixing of rates, and that if cost data were to be required the commission would have to define with particularity the kind of data that would be acceptable. As part of the basis for its decision the court noted the complex nature of the estimates and calculations required by a cost of service study, and went on to say:
“The end result of the machinations is not a determination of the actual cost of any given service. Use of the term ‘cost of service’ is an over-simplification. At best, the result represents an educated guess as to what the costs may be in the test year. It cannot be dignified by being considered a factual determination. It is tenous expert opinion, or informed-judgment evidence, based upon extremely complex and elusive information.” (p. 338.)
A similar situation occurred in New England Telephone & Telegraph Co. v. Dept. of Public Utilities, 371 Mass. 67, 354 N.E.2d 860 (1976), and the same result was reached. There the utility’s proposed rate schedule was also rejected by the commission for lack of a supporting cost study. The court reversed, saying that the value of service standard traditionally employed by the commission should have been applied in that case, absent fair warning that a different type of proof would be required.
The difficulty in producing reliable cost of service data was one factor relied on in Granite State Alarm Inc. v. New England Tel. & Tel., 111 N.H. 235, 279 A.2d 595 (1971), where the court approved a rate increase allocated only to some users, and particularly private line users. The evidence justifying the allocation was testimony that basic rates had increased over the years but that private lines “have not kept pace” in the opinion of the witness. Bringing private lines “up to pace” and “various values to users” were sufficient bases for the commission’s approval; a cost study was not required.
D. Gas. In Arkansas La. Gas Co. v. Sun Oil Co. of Pa., 554 P.2d 14 (Okla. 1976) our sister state to the south approved a retail gas rate structure where all consumers paid the same rate, with a declining price per Mcf for large amounts consumed. On a “cost” basis, large commercial and industrial users paid lower prices but yielded much higher profits (25%, compared to the 7.5% overall return allowed). The order approved recited the following rationale:
“In arriving at such a rate structure, consideration must be given to two competing principles: first, the cost of service declines on the average with an increasing amount of gas purchased by an individual customer, thus justifying a reduced price with increased purchases; and second, that each unit of natural gas has the same energy value regardless of the amount a customer uses, thus suggesting a similar price per unit without regard to amount of usage.” (p. 15.)
In approving a structure which balanced those two principles the court reiterated the accepted principle that “not all discrimination between customers is unlawful with the prohibition applying only to those differences in treatment which are unjust or unreasonable.” (p. 16.)
Finally, in Application of Arkansas Louisiana Gas Company, 558 P.2d 376 (Okla. 1976), the Oklahoma court again considered a rate increase which put most of the increase on high volume users, “flattening” the rate structure. The court approved the order despite the fact that the company’s rate of return from high volume users was 2Vz times its rate of return from residential consumers. The commission’s rationale, implicitly approved by the court, was characterized as follows:
“From the language of Order No. 108922, there appears to be essentially three reasons for adjusting rate structures to shift substantial portions of the rate increase to industrial and high volume customers: (1) a shift from traditionally accepted criteria for valuing utility service known as the ‘cost of service’ rationale to an ‘intrinsic value’ of service rationale, (2) a desire to protect residential rate payers from absorbing more than a fair proportional share of the rate increase, and (3) a desire to channel greater quantities of an admittedly dwindling resource to ‘human needs’ uses such as home heating, hospitals, nursing homes, etc., thereby discouraging inefficient and wasteful over consumption of natural gas reserves where alternative fuels can be substituted.” (p. 378.)
Once again the judicial pronouncement was:
“Commission is not bound by a single formula or a combination of formulas in fixing rates and none is exclusive or more favored than the others. Lone Star Gas Company v. Corporation Commission, 170 Okl. 292, 39 P.2d 547 (1935). There is no precise statutory or court announced basis for determining the justness or reasonableness of class rate level structures or relationships, the Court «generally holding that rate making is the responsibility of a regulatory commission effectively exercising its discretion upon sufficient evidence before it. Arkansas Louisiana Gas Co. v. Sun Oil Co. of Pennsylvania, supra.” (p. 379.)
V.
From the foregoing discussion it may be seen that as a matter of general utility rate-fixing law the order of the commission was one within its competence to make. Its order accepted the testimony of one expert witness and rejected the conclusions of another, and was thus based on substantial evidence. It made a decision to flatten the rate differential between large and small consumers based on accepted policy considerations engendered by the changing times. Under well established principles of judicial review we must affirm unless the order is contrary to Kansas law. Two Kansas cases are forcefully urged upon us by Midwest as indicating that Kansas somehow takes a different approach to rate design than that of the rest of the country.
The first of these is Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 561 P.2d 779 (1977). There the commission, in passing on a requested rate increase, found it necessary to determine whether one generating plant should be segregated from the rest of the system, or whether it should be considered as an integral part of the system for the purpose of determining the company’s rate base and operating expenses. In essence the court held that the question was one of fair debate, in which the courts must yield to the discretion and expertise of the commission.
The court did say that “[i]n public utility rate cases a proper method of allocation should recognize the value of property devoted to a particular service and should result in a rate base which will bring a just and reasonable return on the property used in furnishing that particular service.” (Syl. ¶ 4.) Midwest suggests that this language requires a cost analysis of each service rendered, and a rate based on the costs so determined. Read in context, it will be seen that the court was looking to an allocation of rate base and expenses between Kansas jurisdictional customers and federal jurisdictional customers, and those were the “services” under consideration. Costs are of course necessary elements of a rate base and a determination of overall revenues required; that was what was being established as to Kansas jurisdictional customers. As the Wisconsin court said in West Allis, 42 Wis. 2d at 575:
“A petitioner seeking a rate change, such as the water utility here, does have the duty to show that its total return on its investment is inadequate. It is its responsibility to prove its cost of services as a whole and to show the Commission what total revenue or rate will give it a reasonable return. . . . No such duty lies in connection with ‘pricing’ the product to a particular class of customers or to customers within a class. The function of absolute obeisance to the cost-of-service principle ends when the rate level of the utility as an entity is determined.”
As we see it, Central Kansas has no applicability to a rate design case such as we have here, where the objection is not to the total rate allowed but only to the pricing of the commodity to the various classes of customers. It does reflect judicial deference to the wide discretion vested in the KCC.
The second case, of more concern, is Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 565 P.2d 597 (1977). That was a consumer challenge to utilities’ “late payment” charge. The argument made and accepted by the court was that it is unfair to charge a uniform penalty for all customers who are delinquent in paying their bills, regardless of whether the company is required to expend time and effort in collection. Second notices and in-person collection efforts obviously cost the company money; these expenses should not be shared by those who pay their bills voluntarily although late, and thus do not create those expenses. In so holding the court said:
“The touchstone of public utility law is the rule that one class of consumers shall not be burdened with costs created by another class.” (Syl. ¶ 10.)
Midwest argues that under that principle a study allocating costs to each class of consumers is essential. Without a cost of service study, the argument goes, there is nothing to which the touchstone may be applied.
We think Midwest reads too much into an unexceptionable but abstract statement of law. In Jones the court dealt with two commodities, credit and collection expense, which were quite distinct from the utilities’ basic service, which was the sale of electricity. As to those collateral commodities costs were readily available from the companies’ books, and were relatively easy to allocate to the classes of customers who created them. That is quite a different situation from attempts to allocate system-wide costs of operating an entire utility. As illustrated by the cases discussed above, the latter task is universally regarded as impossible to perform with any degree of reliability. We cannot believe the law requires, or that the KCC must require, studies which are expensive to make and unreliable when made.
For rate design purposes cost studies may be required by the KCC, or may be offered by a party as was done here. See Secretary of the Army v. State Corporation Commission, 206 Kan. 139, 476 P.2d 629 (1970). However, the weight to be given the resulting data when offered is peculiarly within the domain of the KCC. If the KCC is convinced or the evidence indisputably demonstrates that a rate structure in fact imposes on one class costs created by another, the rate structure cannot withstand the test of Jones. We do not, however, read Jones as requiring a cost of service analysis in every rate design case. A rate design fair on its face, with substantial evidence to support it, may be approved without a cost of service study absent a convincing showing of a Jones violation.
VI.
Although what has been said covers the broad issues raised, we shall deal briefly with some of Midwest’s specific points.
A. The claim that interruptibles are required to bear costs created by firm customers is not clearly demonstrated by the record. The KCC simply did not give full credence to Mr. Whiteaker’s cost study, as was its prerogative. Mr. Chaney testified that increasing the lower priced schedules as much or more than the higher priced schedules could be justified on a cost basis. He explained that “return” was part of costs, and that a higher return should be allowed for the higher risk of serving interruptibles who could easily convert to alternative fuels. Midwest asks us to read the testimony of the two opposing experts and determine for ourselves which is more persuasive. We are not permitted to do so; Midwest’s arguments based on the weight of the evidence are made in the wrong forum.
B. The fact, if it be so, that the Company will derive a higher rate of return from its sales to interruptibles than its sales to firm customers does not make the rate schedule unjust or unreasonable. See Apartment Hse. Coun. of Met. W. v. Public Serv. Com’n, 332 A.2d at 57; Arkansas La. Gas Co. v. Sun Oil Co. of Pa., 554 P.2d 14 (Okla. 1976); Application of Arkansas Louisiana Gas Company, 558 P.2d 376 (Okla. 1976); cf. Nor. Pac. Ry. v. North Dakota, 236 U.S. 585, 598-9, 59 L.Ed. 735, 35 S.Ct. 429 (1915); Secretary of the Army v. State Corporation Commission, 206 Kan. 139, 144-5, 476 P.2d 629 (1970); Capital Transit Co. v. Bosley, 191 Md. 502, 513, 62 A.2d 267 (1948). Midwest concedes that the rate of return may vary, but says that the discrepancy here is far greater than in other cases where variances have been approved. Again, this contention is based on its own cost study which the KCC chose not to accept. Even if Midwest’s figures were accepted, the extent of variance is a question for the KCC, not the courts.
C. One of the justifications for the uniform increase in rate per Mcf is the increasing cost of new gas. The KCC reasons that large use now by interruptibles brings ever closer the day when they will convert entirely to other fuels, leaving the firm customer to bear the full brunt of the anticipated higher gas prices. The adopted rate structure partially alleviates the present need to increase the firm rates, and places part of the anticipated future increase on the interruptibles. Midwest argues they thus will pay twice for future increases, once through the present schedule and again through purchased gas adjustments.
Insofar as paying “twice” for gas is concerned, we do not see how the interruptibles are in any different position than the firm customers. Each class will pay a current rate increased by the same amount per Mcf; each will pay a purchased gas adjustment as the Company’s cost of gas increases. Midwest’s real contention is that the firm customers should bear a greater proportion of the present increase. That contention is answered by the KCC’s decision to weigh the value of service more heavily than cost.
D. Midwest objects to the KCC’s consideration of evidence indicating that the cost of gas is rising, and that the supply of natural gas is finite. It argues that such evidence is not “competent” evidence upon which to rely in a rate proceeding.
It is difficult for this court to see why the economic and physical facts of life are not competent or why they should not be considered. Of course, how they are to be considered and the conclusions to be drawn from those facts raise different questions. Arguments on those issues, again, are to be addressed to the KCC and not to the courts. The proper resolution of those issues being in the realm of fair debate, we cannot substitute our judgment for that of the commission.
E. Two technical objections are made to the KCC’s order: that its findings are not specific enough and that the amendment made could only come after a full rehearing. The purpose of requiring findings of fact by the KCC, as in the case of any administrative agency, is to “convey to the parties, as well as to the courts, an adequate statement of the facts which persuaded the Commission to arrive at its decision.” Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 745, 433 P.2d 572 (1967). We have encountered no difficulty in ascertaining the Commission’s reasoning from its order, and judging from its exhaustive briefs, Midwest likewise has been able to glean the commission’s meaning. If we were to remand for new findings we would be hard put to specify what we wanted, unless it might be the kind of cost data demanded by Midwest. What has been said above disposes of any such requirement. Although the findings might have been more detailed, we conclude they were adequate.
The clarification added in the order denying a rehearing was just that; it did not change the substance of the original order but only its language. A rehearing was not required for that purpose any more than a new trial is required before a court may enter an order nunc pro tunc. Cf. Autry v. Walls I.G.A. Foodliner, Inc., 209 Kan. 424, 497 P.2d 303 (1972), modified by opinion denying rehearing, 209 Kan. 747, 497 P.2d 303 (1972).
VII.
We conclude, along with the other courts which have consid ered the question, that cost of service studies are not legally required for rate design purposes. We note a growing feeling among academicians and regulators that such studies are desirable, despite their acknowledged shortcomings, but desirability is not an issue upon which judicial action in this area may be based. The cost of service testimony presented by Midwest was discounted by the commission. We cannot say that it compels a finding that the rate schedules approved by the KCC are unlawful or unreasonable. Accordingly, both the KCC order in Docket No. 113,728-U and the judgment of the district court upholding the order in Docket No. 110,038-U are affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal by the state on a question reserved in a prosecution for the offense of taking indecent liberties with a child.
The question raised is whether the trial court erred in refusing to submit to the jury an instruction on aiding and abetting.
In a single-count information which is the basis of this prose cution it was charged that one Dennis M. Glover and Daniel L. Ingram, the defendant-appellee herein, fondled and touched the person of a fourteen year old girl who was not the spouse of either, with intent to arouse and satisfy the sexual desires of Glover and appellee.
Evidence adduced at trial in support of this charge showed that on the afternoon in question the victim and another girl were driven in a station wagon to a rural Sedgwick county area. The girls were accompanied hy at least four (and possibly more) young men, including Glover and appellee. There conversation occurred in which the young men told the victim she would have to lose her virginity sooner or later. When the victim was not persuaded that this propitious moment had arrived and she should respond voluntarily to the occasion, the youths grabbed her, forcibly removed her shorts and underclothing and put her on her back in the rear of the station wagon. Appellee held her legs and left arm, the latter with force sufficient to bruise it. Others of the youths were lending assistance in the venture. The victim was screaming. Glover removed his trousers and attempted to lie on top of the girl. He touched her vagina. Another of the boys touched her breasts. Appellee did not touch her except on the arm and legs. The group apparently desisted in further advances immediately after Glover attempted to lie on her although appellee wanted to go on and had to be “convinced” by one of the other boys to stop.
At the conclusion of all the evidence the prosecution requested, but the trial court refused to give, the following instructions:
“No. 6
“You are instructed that under the laws of this state, anyone who counsels, aids or assists another or others in the commission of any crime, either hy conspiring, counseling, advising or assisting in any manner in the preparation or completion thereof is equally guilty with the one actually committing the crime without regard to the extent of their participation and is guilty of such crime as though he had himself, without assistance, committed the crime.
“The mere presence of a person who in no way counsels, aids or assists others in the commission of a crime by conspiring, counseling, advising or assisting in any manner in the preparation or completion thereof does not make such person guilty of the crime.”
The jury found appellee not guilty and this appeal ensued. The sole issue is the propriety of the court’s refusal to give requested instruction No. 6.
At first blush it might appear, inasmuch as no other instruction on aiding and abetting was given, that the refusal was improper. Certainly a trial court has the duty to instruct the jury in all matters of law necessary for it to reach a verdict (State v. Coltharp, 199 Kan. 598, 433 P. 2d 418). And K.S.A. 1972 Supp. 21-3205 in part provides:
“Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
It cannot be doubted that taking indecent liberties with a child is an offense susceptible to participation by an aider and abettor in its commission. In State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. denied 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019, the appellant was convicted of robbery and forcible rape. In holding the evidence sufficient to support the convictions, this court stated:
“One who aids and abets in the commission of an offense may be charged, tried and convicted as though he were a principal. The evidence was to the effect that there were seven persons in an automobile — five young men and two juveniles. One of the young men stood in front of the victims’ automobile, two stood on the guest’s side and two accosted the driver. After the driver was knocked down the appellant took his watch and billfold. The appellant searched the glove compartment while the young lady was being raped in the back seat of the automobile. The appellant kicked out the lights and tore out the wires under the hood of the vehicle to prevent the victims from leaving the scene of the crime for help.” (pp. 799-800.)
At this point, then, it would appear the state was entitled to the requested instruction inasmuch as each party to an action is entitled to have the jury instructed with reference to his theory of the case where such theory is supported by evidence and the instruction is properly framed. There was evidence appellee touched the victim in that he held her by the arm or legs at a time when others were touching her person within the meaning of K. S. A. 1972 Supp. 21-3503(1) which in part provides:
“Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
However, it is also fundamental that the propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case (State v. Addington, 205 Kan. 640, 472 P. 2d 225).
The only other instruction given by the court respecting the elements of the offense charged or its commission in any way was instruction No. 2, as follows:
“The defendant is charged with the crime of indecent liberties with a child. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant touched the person of [the victim] with intent to arouse or to satisfy the sexual desires of the defendant, Daniel L. Ingram; and
“2. That [the victim] was then a child under the age of 16 years and not the spouse of the defendant; and
“3. That this act occurred on or about the 9th day of June, 1971, in Sedgwick County, Kansas.”
The record reveals no objection to this instruction and no request for any further instructions respecting the elements of the alleged offense or the manner of its commission. The remainder of the instructions were simply of a routine nature appropriate to any jury trial in a criminal case. Thus we see that in the instructions given, as well as in that requested, there was no mention of Glover or of the significance, if any, of his conduct. Instruction No. 2 did not conform to the information upon which the prosecution was based in that it omitted the fondling aspect of the charge and simply referred to a touching by appellee with intent to arouse or satisfy his own sexual desires. This instruction then treated appellee as a principal and indeed, we cannot say improperly so, inasmuch as there was evidence appellee touched the girl with the requisite intent (arousing or satisfying his own sexual desires) and conceivably he might have been so convicted.
To add to the problem of possible confusion on the part of the jury the requested instruction No. 6 was in the abstract while instruction No. 2 was framed in specific terms and no other instruction defined the offense in general or abstract terms. Instructions that are simply abstract statements of principles of law may under some circumstances be difficult or confusing for a jury to apply to the facts of a particular case. We think that could have been the situation here if the requested instruction, without its better integration with instruction No. 2, had been given. The difficulty might well have arisen concerning intent — what act was done with intent to arouse or satisfy the sexual desires of whom, Glover or appellee?
We cannot say that within the framework of the instructions given to the jury and accepted by all, the trial court clearly erred in failing to give the requested instruction.
The appeal is not sustained.
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The opinion of the court was delivered by
Prager, J.:
This is an action to recover on an insurance policy for tornado damage which occurred to appellant’s real property in the Topeka tornado of June 8, 1966. The appellant-plaintiff, Clinton C. Marker, is a lawyer and is also a licensed agent of the Preferred Fire Insurance Company. The appellee-defendant, Arnold Johnson, is the owner of a general insurance agency and is also a licensed agent and director of appellee-defendant, Preferred Fire Insurance Company. After the completion of discovery the parties filed motions for summary judgment based upon the pleadings, depositions and affidavits on file in the case. The parties prepared a statement of uncontroverted facts which was filed with the district court along with the memorandum briefs of the parties. The district court overruled the motion of the plaintiff for summary judgment and sustained the joint motion of the defendants for summary judgment. The plaintiff has brought a timely appeal to this court.
The facts in the case are not greatly in dispute and are as follows: Prior to October 25, 1965, the real estate located at 1025 Jackson Street, Topeka, Kansas, was owned by Charles M. McDowell. On February 27, 1963, the defendant Preferred Fire Insurance Company through its agent Arnold Johnson issued a policy of fire and windstorm insurance covering the property for a term of three years running from February 27, 1963, through February 27, 1966. The named insured in the policy was Charles M. McDowell who paid the premium for the entire three-year period. This policy was identified in the record as Preferred Fire Insurance Company policy No. SMP 1056.
On October 25, 1965, Charles M. McDowell and his wife Vera entered into a contract for sale of the property to the plaintiff Clinton C. Marker and his wife Edythe. Mr. Marker as a practicing attorney prepared the contract. It specifically provided that the existing policy of insurance on the premises should be canceled and Marker agreed to obtain insurance coverage to protect the property.
Prior to the time the contract was executed, McDowell requested Marker to have Arnold Johnson look at the contract to see if it was all right. On October 25, 1965, Marker took the contract to defendant Johnson at his office and told him that McDowell wanted him to look at the contract. Johnson advised Marker that he was not an attorney but as a layman he would read the contract. Johnson after reading the contract told Marker that if McDowell wished to enter into such a contract with a low-down payment as provided therein and for the stated amount, he would not hesitate to sign it. It was at this point that the question of insurance coverage first came up. Johnson pointed out to Marker that it would be to McDowell’s financial advantage for Marker to continue the current policy in effect until the end of the term rather than it being subject to a flat cancellation. According to the statement of uncontroverted facts Johnson pulled the file on the property and pointed out to Marker that the policy would expire on the following February 26, 1966, some four months later, and inquired of Marker if he, Johnson, should renew this policy. At that time Marker advised Johnson that he would have his father write the policy and told Johnson, “Let me know when the expiration date is and I will have it renewed.” In the course of the conversation Marker pointed out to Johnson that both he and his father were agents for Preferred Fire Insurance Company and Marker wanted his dad to write the policy or he was going to write it himself. Marker specifically stated he did not want Johnson to renew the policy. Marker testified that at the October 25 meeting between Marker and Johnson he, Marker, said “that at the time of the expiration for him to let me know, that I wanted my Dad to write it, and he agreed that he would do this. ”
Marker then left Johnson’s office and on the same date the contract for the sale of the property was executed by the Markers and the McDowells. McDowell turned over the original policy No. SMP 1056 to Marker for the purpose of having it placed in a safety deposit box. From that time on McDowell never saw the policy again. Several days later Marker sent McDowell the amount of unearned premiums which was $72.
On November 5, 1965, Marker and Johnson had a telephone conversation in which Marker advised Johnson that he and McDowell had executed the contract for the purchase of the property at 1025 Jackson and that Johnson should add an endorsement to policy No. SMP 1056 by adding the names of Clinton C. Marker and Edythe Marker as purchasers under contract. There is a dispute between Marker and Johnson as to whether the expiration date was discussed again. Shortly after November 5, 1965, Johnson prepared an appropriate endorsement for the policy and sent it along with a copy of the policy to Marker. The endorsement added the names of Clinton C. Marker and Edythe Marker as additional named insureds under the policy. The copy of the policy which Johnson sent to Marker at that time showed that the expiration date of the policy was February 27, 1966. Marker and Johnson had no further conversation about insurance coverage on the property at 1025 Jackson Street.
In January 1966, about 30 days before the expiration date of policy No. SMP 1056, Johnsons secretary, Eunice Carter, in the course of normal office routine wrote Preferred Fire Insurance Company and requested renewal policies on a number of policies including policy No. SMP 1056. At that time Eunice Carter did not know that Marker had directed Johnson not to renew this policy. It was the normal routine at Johnson’s office to obtain renewal policies and then forward them to each named insured for his approval. In response to the request of Eunice Carter, Preferred Fire Insurance Company on January 31, 1966, prepared policy No. SMP 1363 providing insurance coverage for the real estate at 1025 Jackson and forwarded this policy along with other policies to the Arnold Johnson Agency. Preferred Fire Insurance Company billed the Arnold Johnson Agency for all the policies including the renewal policy No. SMP 1363. When these policies were received by the Arnold Johnson Agency, Eunice Carter on behalf of Johnson countersigned all of the policies including policy No. SMP 1363 and placed the policies on Johnson’s desk. At that time Johnson advised Eunice Carter that Marker had expressly instructed him not to renew the policy, that the existing policy was not to be renewed and that Mr. Marker would renew the policy himself and keep the commission. Johnson directed Eunice Carter to send policy No. SMP 1363 back to Preferred Fire Insurance Company for flat cancellation since it was not to have been written. The policy was then returned to Preferred Fire Insurance Company, canceled flat and on the next monthly billing, the Johnson Agency was given credit for tire cancellation. At no time was policy No. SMP 1363 delivered to Marker, nor was he ever advised that there was such a renewal policy, nor was he ever billed a premium, nor has Marker ever tendered or paid a premium on this policy.
On June 8, 1966, the Topeka tornado struck and damaged the property at 1025 Jackson Street. Marker made a claim which was first reduced to a formal claim in writing on November 30, 1966, to Preferred Fire. At no time did Marker ever contact Johnson in regard to coverage on the property after the telephone call of November 5, 1965; nor did Marker ever pay any renewal premiums on any coverage after February 27, 1966. It is undisputed that Marker did not authorize Johnson or anyone else to renew the policy so as to provide insurance coverage after February 27, 1966. Marker in fact specifically directed Johnson not to renew the policy.
Immediately after the tornado of June 8, 1966, Mr. and Mrs. McDowell testified that they became aware that there was no insurance coverage on the property they were selling to Marker. Mrs. McDowell testified that Marker stated to them within a day or two after the tornado, “Damn, I forgot to renew the policy.” Marker denied making such a statement. For the purpose of determining this appeal we will assume that the facts set forth above are true and where there is a conflict in the testimony we will accept the testimony of Mr. Marker. In construing the facts we will adopt all reasonable inferences in support of Mr. Marker s position.
The primary issue to be determined in this case is whether or not under the facts and circumstances the plaintiff Marker has a reasonable theory in law to place upon Johnson or the Preferred Fire Insurance Company, the obligation to pay for the loss which occurred to Marker’s property as the result of the tornado. The district court rejected all of the plaintiff’s theories of liability and entered judgment in favor of the defendants.
The first point raised by the plaintiff takes the position that the defendant Johnson is liable because he breached a contractual obligation to notify plaintiff Marker of the expiration date of the Preferred Fire Insurance Company policy No. SMP 1056. The thrust of plaintiff’s argument is that if an insurance agent promises his client that he will notify him at the time a policy expires and fails to do so, then the agent is responsible to the client for any loss suffered. In support of this position plaintiff relies upon the well-established principle of law that an insurance agent or broker who undertakes to procure insurance for another and thereafter neglects or fails to do so, will be held liable for any damage resulting therefrom. There are a number of cases in Kansas which support this general rule. (Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P. 2d 265; Rezac v. Zima, 96 Kan. 752, 153 Pac. 500; Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023; Smith v. Hartford Fire Ins. Co., 120 Kan. 53, 242 Pac. 455; Cushenberry v. Grecian, 112 Kan. 778, 212 Pac. 681.) For many cases from other jurisdictions see the extensive annotation in 29 A. L. R. 2d 171.
The theory of liability in such cases is based upon contractual obligations arising out of the relationship of broker and insured. In determining the obligations of a broker to the insured the general rules pertaining to the law of contracts should be applied including the cardinal rule that a binding contract can not come into existence unless there is a consideration for the same.
Where a broker is employed to procure insurance for a client, the decisions recognize the necessity of a consideration for the broker’s promise in order for the broker to be bound thereby. Where there is no consideration passing to an insurance broker for his undertaking to procure insurance it is generally held that there is no liability for a failure to accomplish such procurement. The consideration which flows to the broker in return for his promise to procure insurance is said to be the expectation of the broker of receiving a commission or profit when the insurance policy is obtained. The agreement by the proposed insured to pay the premium and accept a delivered policy is a real and not just a technical consideration in exchange for the promise to procure insurance. (House v. Schesel, 42 Wis. 2d 628, 167 N. W. 2d 421; Lawrence v. Francis, 223 Ark. 584, 267 S. W. 2d 306.)
The obligation to procure insurance where a broker is employed to do so has been extended to situations where the broker undertakes to renew an existing policy on behalf of his insured. The consideration for the undertaking is the same as the consideration when an original policy is obtained which is, of course, the expectation of a commission by the broker and an obligation on the part of the insured to accept the policy and pay the premium therefor. The rule has also been extended to situations where a broker who has procured insurance for a client promises to give notice to the insured of the expiration date of the policy. Where the broker fails to do so and the insured relies on the broker’s promise to his loss, the broker may be held liable for the loss resulting from the failure of the broker to notify the insured of the expiration date of the policy. (Universal Underwriters Lloyds v. Sulik, 301 S. W. 2d 690, [Tex. Civ. App. 1957.]; Pesina v. Juarez, 288 Minn. 379, 181 N. W. 2d 109.)
The plaintiff Marker relies on this line of cases as support for his position that defendant Johnson breached a contractual obligation in failing to notify the plaintiff Marker at the time of the expiration of the policy. A careful analysis of the rationale of those cases has led us to the conclusion that the principles of law applied there are not applicable to the factual situation presented in the case at bar. We have concluded that although Johnson may have agreed on Marker’s request that he would let Marker know when the policy expired at the time of expiration, there was no consideration for such a promise on the part of Johnson. Therefore no binding contractual obligation on Johnson to give notice of the date of expiration ever came into existence.
In every case where an insurance agent has been held liable for failure to procure insurance or renew a policy or give notice of the expiration date of an existing policy, the relationship of broker and client has been established with mutual obligations arising from that relationship. The obligation to renew a policy or to give notice of the expiration date of a policy has in each case been one obligation among others involving either a past or expected sale of a policy of insurance by the broker to the client and in each case the agreement of the parties has been supported by consideration running in favor of the broker. This is true with respect to all cases cited by the plaintiff in his brief. (Universal Underwriters Lloyds v. Sulik, supra; Aresto v. Milie, 184 Pa. Super. Ct. 114, 133 A. 2d 304; Adkins & Ainley, Inc. v. Busada, 270 A. 2d 135, [U. S. D. C. App. 1970]; Shea v. Jackson, 245 A. 2d 120 [U. S. D. C. App. 1968].)
When we turn to the factual situation presented in the case at bar it is clear that the relationship of broker and client never existed between the plaintiff Marker and the defendant Johnson. It is undisputed that Johnson never undertook to procure insurance coverage on behalf of Marker nor did Johnson agree to renew the existing insurance policy upon its expiration. The most that can be said is that Johnson stated he would let Marker know the expiration date some time around the date of expiration although the exact time was not clear. There was no consideration whatsoever running in favor of Johnson since Marker stated categorically that either he or his father would have the policy renewed. In that event the expectation of a commission on renewal by Johnson was nonexistent and we find no other conceivable consideration for any promise which might have been made by Johnson. It is important to emphasize in this case that the plaintiff Marker himself was a licensed agent of Preferred Fire Insurance Company. The record also shows that Marker owned other real estate and that his father had written insurance policies with Preferred Fire Insurance Company covering those properties. Marker himself could at any time have obtained insurance coverage simply by picking up the telephone and calling Preferred Fire Insurance Company. In that case any commission would have been his. Under all the circumstances we conclude that assuming there was a promise on the part of Johnson to Marker to let Marker know that the policy was about to expire at the time of expiration, such promise was purely a gratuitous undertaking on Johnson’s part and there was no consideration whatsoever passing between Marker and Johnson to serve as the basis for a binding contract between the parties. We therefore reject plaintiff’s first point that Johnson is liable to him on a theory of contract.
The second point raised by plaintiff on this appeal is that defendants Johnson and Preferred Fire Insurance Company are liable for the tornado loss on a theory of promissory estoppel. The plaintiff’s argument here is that where one person promises to do something and another relies on that promise to his detriment, the promisor should not be allowed to assert claims and defenses inconsistent with his promise. In support of this position the plaintiff relies upon section 90 of the Restatement of the Law, Contracts:
“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (p. 110.)
Section 90 of the Restatement of the Law, Contracts is cited in Southwestern College v. Hawley, 144 Kan. 652, 62 P. 2d 850, and in Greiner v. Greiner, 131 Kan. 760, 293 Pac. 759. In the more recent cases the doctrine set forth in section 90 of the Restatement of the Law, Contracts, quoted above has been designated as “promissory estoppel.” Promissory estoppel differs from ordinary “equitable” estoppel in that the representation is promissory rather than to an existing fact. Southeastern Sales & Service Co. v. T. T. Watson, Inc., (Fla. 1965.) 172 So. 2d 239. The cases hold that in order for the doctrine of promissory estoppel to be invoked the evidence must show that the promise was made under circumstances where the promisor intended and reasonably expected that the promise would be relied upon by the promisee and further that the promisee acted reasonably in relying upon the promise. Furthermore promissory estoppel should be applied only if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice. These principles are discussed in 28 Am. Jur. 2d, Estoppel and Waiver, § 48, where cases from many jurisdictions are cited. There are also extensive annotations on this subject in 115 A. L. R. 152 and in 48 A. L. R. 2d 1069.
We agree with the defendants Johnson and Preferred Fire that the facts and circumstances in this case do not justify the applica tion of the doctrine of promissory estoppel. In the first place there is no evidence whatsoever of any affirmative inducement or misrepresentation made by Johnson to Marker. The circumstances which brought about any promise of notification from Johnson arose from a rather casual request by Marker that Johnson should let Marker know the expiration date of the policy so that Marker could have it renewed. To this request Johnson allegedly responded, ‘Til do that.” The evidence falls far short of showing that Johnson intended or expected Marker to rely upon the promise or that Marker reasonably had the right to rely upon Johnsons promise. Furthermore a refusal to enforce the doctrine in this case would in no way sanction the perpetuation of a fraud or result in other injustice. It is also clear from the evidence that from the time the real estate contract was signed, plaintiff Marker had the original policy in his possession which clearly disclosed the expiration date. Furthermore another copy of the policy was mailed to Marker by Johnson after November 5, 1965, when Johnson executed the endorsement to the policy which added the names of Mr. and Mrs. Marker as additional named insureds. Johnson could reasonably have assumed that he was carrying out his promise to notify Marker of the expiration date of the policy when he mailed a copy of the policy to Marker. Also we again wish to stress the fact that Marker was an attorney and was himself a licensed agent for Preferred Fire Insurance Company. The promise of Johnson to advise Marker of the expiration date of the policy was a promise wholly without consideration and essentially was made as a mere accommodation to Marker. The terms of the policy were always within the knowledge of the plaintiff and if he failed to remember that the policy expired at a certain time before the tornado, it was his own negligence and not that of Johnson which prevented plaintiff from renewing his policy. (Kimball v. Clinton County New Patrons Fire Relief A., 255 N. Y. S. 2d 366, 23 A. D. 2d 519.)
In Shepard v. United States Fidelity & Guaranty Co., 210 Kan. 652, 504 P. 2d 228, the insured under an automobile insurance policy claimed an estoppel against the insurance company on the theory that there was a custom for the insured to get notice from the company that a policy was expiring. The plaintiff contended that since no notice was given and since he relied on that custom, the insurance company was estopped from denying insurance coverage. In Shepard the loss occurred four months after the insurance policy expiration date. At no time did the insured pay or tender a renewal premium. In Shepard we rejected the theory of estoppel stating as follows:
"We might add that even if there were otherwise grounds for invoking an estoppel theory, the appellant could hardly carry it so far as to give him immunity from the payment of a renewal premium for as long a period as four months. He was charged with knowledge of the expiration date of the policy held and the necessity of tendering a premium for renewal, at least within a reasonable time, whether he had notice or not.” (p. 653.)
In the case at bar the policy of insurance No. SMP 1056 expired February 27, 1966. The loss occurred on June 8,1966, over 100 days later. Under the rule applied in Shepard it is clear to us that the plaintiff Marker was charged with knowledge of the expiration date of the policy which he held in his possession and the necessity of a tender of a premium for renewal of the policy within a reasonable time. This is especially true in this case where the plaintiff Marker is an attorney and a licensed agent of Preferred Fire Insurance Company who owned a number of other properties insured under separate policies issued by Preferred Fire. Marker had no right to rely on Johnson to jog his memory. For these reasons we hold that the plaintiff Marker’s claim of liability against defendants on the theory of an estoppel cannot be sustained.
In his third point the plaintiff contends that Preferred Fire Insurance Company did issue a renewal policy, No. SMP 1363, and that this policy provided insurance coverage for the tornado loss which occurred on June 8,1966. As pointed out in the statement of facts set out heretofore, policy No. SMP 1363 was issued by Preferred Fire to cover the period from February 27, 1966, to February 27, 1969, under the following circumstances. This renewal policy was ordered by Eunice Carter, an employee of the Arnold Johnson Agency. The policy was ordered by Ms. Carter and mailed by Preferred Fire to the Johnson Agency under a mistaken belief that Marker wanted the policy renewed by Johnson. The evidence is undisputed that Marker expressly and unequivocally did not want Johnson to renew the insurance coverage on his property at 1025 Jackson. In fact the issuance of policy No. SMP 1363 was directly contrary to the express instructions of Marker to Johnson not to renew the insurance. When this policy was received by Arnold Johnson Agency and called to Johnson’s attention, it was immediately discovered that this policy was ordered and issued by mistake. It was immediately canceled and returned to Preferred Fire Insurance Company. There is no contention that this policy was ever delivered to Marker, or that he ever accepted or paid the premium for this policy or that he ever even knew it was in existence until after it was canceled and the loss occurred. The general rule of insurance law applicable is that even where a renewal policy is delivered by the insurance company to the insured, upon the expiration of a policy, without a request by the insured, it is merely an offer or proposal which must be accepted by the insured before a contract of insurance is effected. Couch on Insurance 2d, § 12.3; Siewerdsen v. United States F. & G. Co., 184 Neb. 870, 173 N. W. 2d 27.) In this case the new policy was never delivered to Marker nor did he have any knowledge of its existence. Here there was never an offer and acceptance of a policy of insurance nor any meeting of the minds. No premium payment was ever tendered to Preferred Fire by Marker between February 27, 1966, and June 8, 1966, when the loss occurred.
Under the circumstances the rule to be applied is that set forth in 43 Am. Jur. 2d, Insurance, § 404:
“. . . a policy that is withdrawn or recalled before it becomes effective does not require a notice of cancellation, and a policy procured without the authority of the insured may be repudiated by the insurer prior to its ratification by the insured . . .”
We have concluded that Preferred Fire policy No. SMP 1363 never became an enforceable policy of insurance since it was originally issued by mistake and contrary to the express instructions of plaintiff Marker and for the further reason that it was cancelled and repudiated by the insurance company prior to the time it was accepted by the insured. Under these circumstances no notice of cancellation to Marker was required since the policy never became a binding contract. It follows that plaintiff Marker is not entitled to recover on this theory against Preferred Fire Insurance Company.
The fourth point raised by the plaintiff is that there were genuine issues of fact existing which precluded the entry of summary judgment in favor of the defendants Johnson and Preferred Fire. We do not agree. All discovery had been completed. All persons who had any relevant knowledge about the case testified fully by way of depositions. Since all of the available facts were before the court, it was proper for the court to determine as a matter of law whether or not the plaintiff Marker had a valid claim against defendant Johnson and Preferred Fire. Under these circumstances the case was properly ripe for summary judgment.
We find no error in the court below. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This action was brought by plaintiff, Overland Transportation, Inc. to recover the amount claimed for freight charges for the hauling of livestock, and a counterclaim by defendants, Frank J. Herl and Sons, a partnership, and Frank J. Herl, for the recovery of money due upon a written lease of tractors and trailers for livestock hauling. The parties entered into a written contract in which the defendants were to rent two tractor-trailer units to the plaintiff. The revenue derived from the contract was to be divided 90 percent to defendants and 10 percent to plaintiff after the expenses were paid. The contract controlled the rights of the parties.
The case was tried by the district court which made findings of fact, and concluded that there was $3,741.90 due the plaintiff; that the plaintiff was indebted to the defendants in the sum of $4,076.87, and entered judgment in favor of the defendants in the amount of $335. The plaintiff timely perfected this appeal.
It is unnecessary to summarize the pleadings of the parties, and it is sufficient to say the case does not present any question of law concerning the construction of the livestock hauling contract. There is no real dispute in the evidence since the district court relied upon the books, records and accounting procedures of the appellant in determining the amount due the appellees and in entering judgment. In short, the appellant contends that while the district court’s findings of fact are supported by the evidence, the judgment entered by the district court is not supported by the findings of fact in that the appellant is entitled to an additional sum of expenses offsetting what the court found to be due the appellees; and, further, that the amount awarded the appellees is not based on the evidence or the findings of fact.
The briefs of the parties cite no cases or other authority, but involve lengthy analyses of the disputed accounting and allocation of proceeds. To marshal the evidence and state the reasons for this court’s conclusion would consume several pages of the Kansas reports. In the end, the court would have done no more than review questions of fact neither novel in kind nor of any interest to anyone except the parties to the appeal. The appellant’s various points have been fully examined, and the court finds that each is disproved by the evidence and the findings of the district court. No new principle of law of striking interest and no new application of old principles are involved, and when the facts have been determined as the district court did, the judgment rendered follows as a matter of course. This court does not feel any useful purpose would be subserved by a fuller discussion of the case, except to say the district court’s findings of fact are amply supported by substantial evidence; that its findings of fact fully support the judgment in favor of the appellees, and they are approved.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This action was brought by C, Kirk Scott, a passenger in a vehicle owned and operated by Dennis McClure, impersonal injuries sustained by him in a collision between the McClure vehicle and a vehicle driven by the defendant, Leon L. McGaugh. Scott appeals from a judgment in favor of the defendant McGaugh entered on a jury verdict.
During the trial in the court below the judge ruled as a matter of law tire plaintiff and his driver were engaged in a joint venture at the time of the collision, and the jury was instructed that the negligence of the driver, if any, was imputable to the plaintiff passenger. The questioned instruction reads as follows:
“No. 18
“The Court finds that as a matter of law the plaintiff and his driver, Dennis McClure, were engaged in a joint venture at the time of this collision so that any negligence on the part of the driver, Dennis McClure, is imputed to the plaintiff, C. Kirk Scott.”
The appellant Scott contends tire evidence at the Rial conclusively showed that the relaüonship and understanding between the driver (McClure) and the passenger (Scott) was insufficient in law to impose vicarious liability on Scott for the negligence, if any, of the driver. He contends the relaüonship and understanding of the parties did not result in a joint venture with the requisite mutual right of control over the vehicle being used at the time of the accident.
Before discussing the law, evidentiary facts of the case bearing upon the relationship and understanding of McClure and Scott will be detailed. These facts were uncontroverted.
Prior to and at the time of the accident in question the Equitable Life Insurance Company in Wichita had employed several trainee salesmen. These trainee salesmen were employed on a salary plus a commission basis. They were required to furnish their own transportation in calling on prospects for insurance. They were not compensated by the company for the use of their personal cars. A list of insurance prospects was available at the company office in Wichita. These prospects were obtained from the “Welcome Wagon” list of newcomers in the city. The company encouraged the trainee salesmen to work in pairs. When two trainees participated in making a sale of insurance the usual commission to be earned was credited one half to each trainee. The company kept the records on these sales.
McClure and Scott were trainee salesmen employed by Equitable. They had previously joined forces in calling on insurance prospects. In some instances Scott had driven his car and in other instances McClure drove his car. They were not compensated by the company or by other trainees for the use of their personal cars. Each took turns driving his own car so he would not be “freeloading” on the other trainees. McClure and Scott did not always work together, both had worked with other trainees.
On the morning of the accident Scott and McClure arrived at the company office in their own separate cars. They looked over the list of prospects together and decided to join forces that day in making certain calls on prospects. One prospect chosen had been previously approached by McClure and Scott as a team. When McClure and Scott left the office McClure’s car was parked nearby so they took McClure’s car at his suggestion. McClure drove, and on the way to the home of their mutual prospect the collision occurred. McClure’s car collided with a car driven by the defendant McGaugh in an open intersection in a residential district in Wichita. Further details of the collision are unnecessary to determine this question presented on appeal.
We will assume for the purpose of examining the question that both drivers were negligent in some particular and that their concurrent acts of negligence were a direct cause of the collision.
Now, as a preliminary matter, let us consider what is generally considered to amount to contributory negligence by a passenger. In the absence of vicarious responsibility (imputed contributory negligence) a passenger in an automobile is required to use reasonable care for his own safety.
No exact yardstick can be provided for cases of failure to control the conduct of a driver but in the new draft Restatement, Torts, Second, § 495, it is said:
“A plaintiff is barred from recovery if the negligence of a third person is a legally contributing cause of his harm, and the plaintiff has been negligent in failing to control the conduct of such person.” (p. 556.)
An instruction was given in this case on contributory negligence of a passenger, absent vicarious responsibility, as originally set forth in PIK, Civil, § 8.91. It was as follows:
“It is the duty of a passenger while riding in an automobile driven by another person, to use that care which a reasonably careful person would use for his own protection under the circumstances then existing.
“A passenger may properly rely upon the driver to attend to the operation of the vehicle, in the absence of knowledge of danger, or of facts which would give him such knowledge.
“It is for the jury to say from the evidence whether a passenger exercised such care as a reasonably careful person would exercise under the existing circumstances.” (p. 248.)
We note the form of this suggested instruction has been revised in the 1968 Supplement of PIK Civil.
Now let us consider the primary question raised in this appeal, imputed contributory negligence. In this opinion the terms imputed negligence and imputed contributory negligence are used interchangeably and without implying any difference in meaning. As a general proposition imputed negligence will bar plaintiff’s recovery. It does so not from culpability or wrongful act by plaintiff but from liability for another person’s wrongful act. Such liability is an artificial creation of the law arising out of the relationship of parties and is referred to as vicarious responsibility. Such responsibility or liability is imposed by reason of the relationship. One such relationship giving rise to imputed negligence is loosely referred to as a joint adventure or joint enterprise. These two terms will be used interchangeably herein without attempting to connote any difference. See Prosser, Law of Torts [3rd Ed. HB], § 71, p. 488, for further discussion of the subject.
The fiction which gives rise to imputable negligence has been criticised and it is said to find small favor with the courts (Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134) but it persists in almost all of the states. (Prosser, Law of Torts [3rd Ed. HB], § 71, p. 494.) The Minnesota Supreme Court found the doctrine of imputed negligence so distasteful in automobile cases that it refused in 1966 to continue to recognize it. (See Weber v. Stokley-Van Camp, Inc., 274 Minn. 482, 144 N. W. 2d 540.)
In Kansas if vicarious liability is to be imposed upon a passenger in an automobile for the culpable acts of his driver because of their relationship as joint adventurers, the liability must arise by reason of a contract, agreement or understanding of the parties. Such agreement or understanding may be either expressed or implied. In Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459, it is said:
“The essential question is whether, under the facts and circumstances, the driver and passenger can be found by implication to have agreed to have an equal privilege and right to manage and control the vehicle. . . .” (p. 1003.)
To constitute a joint venture which will impose vicarious liability four things must be established before the relationship of the parties will give rise to an application of the doctrine of imputed negligence. There must be (1) an agreement, (2) a common purpose, (3) a community of interest and (4) an equal right to a voice, accompanied by an equal right of control over the instrumentality (the automobile). (Bedenbender v. Walls, 177 Kan. 531, 535, 280 P. 2d 630; Prosser, Law of Torts [3rd Ed. HB], § 71, p. 490.)
It should be noted that the fourth essential, the right of control, must be present in the relationship of the parties before negligence can be imputed to the passenger. This right of control is necessary to confer agency upon the driver and like any other agency it must be based upon agreement. A right of control of a vehicle may not be required to carry out the common purpose in some joint adventures, since mutual use and operation of an automobile may not be considered necessary to carry on the joint adventure. In such cases there is no vicarious liability from the operation of a vehicle.
Probably the leading case in Kansas on the subject of vicarious liability between joint adventurers is Schmid v. Eslick, supra, which holds:
“To constitute a joint enterprise [which will support vicarious liability] between a passenger and a driver of an automobile, there must be a common purpose for which they jointly use and occupy the motor vehicle so as to give each the equal privilege and right to control and manage its operation.
“Under the doctrine of joint enterprise whereby tire negligence of one party is imputed to the other upon the relation of agency, there must be equal responsibility for the negligent operation of the vehicle, and there can be no equal responsibility unless there is equal privilege and right to direct and control its operation.
“The mere association of persons riding together in an automobile having a common purpose in making a trip and a common destination, does not in itself give to a passenger equal privilege and right to control the method and means of operating the vehicle so as to constitute a joint enterprise [imposing vicarious liability].
“In determining a passenger’s equal privilege and right to control an automobile, the essential question is whether, under the facts and circumstances, there is an understanding between the parties that he has the right and is possessed of equal authority to prescribe conditions of use and operation.” (p. 997.)
In Schmid Mr. Chief Justice Fatzer collects prior Kansas cases on the subject and after analyzing many of them he concludes for the court that “right of control” is an essential element which must be present by agreement if vicarious liability is to be imposed upon a passenger under the theory of agency between joint adventurers.
When no express agreement for mutual “right of control” is present an agreement may be implied if the facts and circumstances will support such an understanding.
The following factual situations have been held not to support such an understanding between the parties.
In die Restatement, Torts, Second, § 491, on the subject of contributory negligence arising from joint enterprise the following illustration is given on page 550:
“2. A, as attorney for B, is engaged in the trial of a case in the town of X. C is retained by B to assist A. Both A and C live in the same village, which is at some distance from the town of X. On the day of the trial A offers to drive C to X. While on the way to X, A drives the car carelessly and a collision ensues in which C is injured. A’s negligent driving does not bar C from recovering against the driver of the negligently driven vehicle with which A’s car collides.”
In Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061, a plaintiff passenger was in a car pool arrangement with three other employees of Boeing Airplane Company at Wichita. The four Boeing employees alternated in driving their automobiles to and from work in Wichita. While enroute to the plant in Wichita one day they collided with a Santa Fe train. The plaintiff passenger was riding in the back seat of the car owned and operated by a fellow Boeing employee. This court on appeal held the facts and circumstances did not support a claim of joint enterprise imposing vicarious liability, in that equal right of control of the automobile was absent. Negligence of the driver could not be imputed to the passenger.
In Angell v. Hester, 186 Kan. 43, 348 P. 2d 1050, another “share the ride” agreement was examined by this court. The plaintiff passenger was a member of an oil field crew. The crew was returning home from work when an accident occurred. This court held the “share the ride” agreement did not constitute the driver an agent of the passengers. Negligence of the driver was not imputable to the passengers.
In Hunter v. Brand, 186 Kan. 415, 350 P. 2d 805, the plaintiff passenger was riding with her husband in a station wagon. The husband was driving. The wagon was owned by a partnership composed of the husband and his father. They operated a cattle ranch. The wife had accompanied the husband on a business trip. This court held no mutual “right of control” of the vehicle was established and the issue of joint enterprise imposing vicarious liability should not have been submitted to the jury.
In Schmid v. Eslick, supra, the plaintiff passenger and friends were attending a social gathering. He was out of cigarettes and suggested that he and his friends drive to town to purchase some. At the suggestion of a friend who volunteered to drive his car, plaintiff became a passenger and a collision occurred on the way to town. This court held as a matter of law the “right of control” test had not been met and that negligence of the driver could not be imputed to the passenger.
We have been unable to find a case with a factual situation identical to our present case. It is noteworthy that in our research we have failed to find any alleged joint enterprise case in which this court has held a trial court was justified under the evidence in imposing vicarious liability upon the passenger as a matter of law. In the future there may arise such a case but instances, no doubt, will be rare in the absence of an express agreement for mutual “right of control”.
In several cases this court has held that under the facts of those cases “right of control” was a jury question. In Heiserman v. Aikman, 163 Kan. 700, 186 P. 2d 252, the question of alleged agency of the driver was held to be a jury, question but on the separate issue of alleged joint adventure imposing vicarious liability this court held the evidence was insufficient to establish plaintiff’s mutual “right of control.” On this latter issue it was held error to submit the question to the jury.
In the recent case of Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P. 2d 980, we had a strong factual basis for supporting a jury finding on mutual “right of control.” Mr. and Mrs. Kelty (the driver and passenger) were engaged in the paperhanging business. They worked together. He ran the business and she worked as his helper and assistant. The accounts and records of the business were kept jointly. The income from their mutual efforts went into a joint account. Joint income tax returns were filed. The title to the truck, in which they were riding at the time of the accident, was held jointly. The accident occurred on the way to work.
There can be little doubt in the Kelty case that a joint adventure was established. The question of mutual “right of control” over the use and operation of the jointly owned truck, however, was held to be a question of fact for the jury. The jury entered a verdict in favor of the plaintiff passenger, and in effect found either the driver was not negligent or the passenger had no mutual “right of control”. This court in affirming the judgment held the question was properly submitted to the jury and indirectly we held this strong factual situation, which included joint ownership of the truck, did not establish mutual “right of control” of the vehicle as a matter of law.
Ry way of comparison let us examine the factual situation in the present case. As between McClure and Scott there were no joint tax returns, no ongoing business, no joint bookkeeping, and no joint ownership of the vehicle. McClure and Scott were separately employed by Equitable as salesmen. Roth owned separate automobiles. Any common purpose or community of interest between them was entirely dependent upon their employment by Equitable. Their community of interests did not exist separate and apart from their employment. Equitable kept the records and paid them separately.
Although a plaintiff passenger and a driver of an automobile are co-workers or fellow employees of a common employer and both are acting in the course of and in the furtherance of the business, this alone does not make them participants in a joint enterprise which will impose vicarious liability under the “right of control” test; and this is true irrespective of whether the vehicle is owned by the employer, the fellow driver or by the plaintiff himself. (Re statement, Torts, Second, § 491, comment [f]; Prosser, Law of Torts, [3rd Ed. HB], § 71, p. 491. See also 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 679, p. 232; and Heiserman v. Aikman, supra; and Kendrick v. Atchison, T. & S. F. Rld. Co., supra.)
In our present case McClure was the owner and operator of the car. The passenger Scott claimed no interest therein. There was no evidence that Scott had ever driven McClure’s car or exercised any control over either the car or the driver. There was no understanding between the parties which might authorize Scott to use or control the operation of the McClure vehicle. In the absence of McClure it would appear that Scott had no right to be in the vehicle. The sharing of transportation was gratuitous and the sharing arose from a common desire to save personal expenses. There was nothing in the nature of the undertaking to sell insurance which dictated the use of the McClure vehicle. These two co-employees might as well have used some means of public transportation to call on this prospect. In such case their common purpose and community of interest would have been the same.
In determining vicarious responsibility of a passenger for the culpable negligence of a driver in connection with an alleged joint enterprise the “right of control” test must be applied and the test must be met before contributory negligence may be imputed to the passenger.
Where evidence of the relationship and understanding of the parties is undisputed and the facts and circumstances clearly show a passenger does not have an equal privilege and right to control the operation of the vehicle under the “right of control” test, the issue of joint enterprise to support vicarious liability becomes one of law for the court’s determination; and, the court should instruct the jury that negligence of the driver, if any, is not imputable to the plaintiff passenger. (Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524, Heiserman v. Aikman, supra; Schmid v. Eslick, supra.)
After carefully reviewing the evidence in the record this court fails to find any evidence from which an .understanding may be implied that McClure and Scott had an equal right of control and were possessed of equal authority to prescribe the conditions of use and operation of the McClure vehicle under the “right of control” test enunciated in Schmid v. Eslick, supra. Accordingly, it is held that the trial court erred (1) in determining the driver and passenger in this case were engaged in a joint enterprise imposing vicarious liability and (2) in instructing the jury that any negligence on the part of the driver, McClure, was imputed to the plaintiff Scott. Instruction No. 18 should not have been given.
The appellant raises additional points of error. Our examination of these additional points does not disclose that a discussion of them would be of any particular help to the trial court on a second trial of this case. What has been said in our opinion adequately disposes of this appeal.
The judgment is reversed and the case is remanded to the trial court with directions to grant plaintiff a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action for damages against two groups of defendants, those associated with the Salina Livestock Commission Company and those associated with the Farmers and Ranchers Livestock Commission Company. The Salina Livestock group operated plaintiffs’ livestock auction facility under an agreement which prohibited the parties from engaging in a competitive business. PlaintifFs claim the Salina Livestock group breached the agreement and that the Farmers and Ranchers group fraudulently conspired with them not only to cause the breach but to ruin and destroy plaintiffs’ property as a livestock auction facility. Trial was to the court resulting in a judgment for actual damages of $250,000 and for punitive damages of $100,000. On appeal,the basic claim of each group of defendants is the insufficiency of the evidence to support the judgment.
The Salina Livestock group are defendants E. R. McCullick, Edward B. Tolle, H. Irwin Christiansen, and Joe Clemence. The Farmers and Ranchers group are defendants Robert D. Muir, Edward T. Tolle, Merrill Christiansen, and Lawrence Clemence.
Because of the similarity of names, and close business and family ties among the defendants of both groups, we find it necessary to set forth the relationship at some length. Each individual defendant has a relative who is also a defendant and owner in the other livestock commission company. Joe Clemence and Lawrence Clemence are son and father, and partners in a farming operation of over 3,000 acres and a livestock feed yard containing approximately 5,000 head of cattle. H. Irvin Christiansen and Merrill Christiansen are brothers. They live within one and one-half miles of each other and together own 1,120 acres of grassland and cattle. E. R. McCullick and Robert D. Muir are stepfather and stepson. Muir lives with his mother and stepfather, and McCullick and Muir are equal partners in M & M Cattle Company. Edward B. Tolle and Edward T. Tolle are father and son. Edward T. Tolle, hereinafter referred to as Thayne Tolle, is a music teacher in Wichita. Further analysis and detail of the business relationships of the Salina Livestock group and the Farmers and Ranchers group will be made later to provide an understanding of the factual situation.
Plaintiffs constructed the Beverly livestock auction facility in 1934. It is located on eighty acres adjoining the city of Salina on the east and consists of modern livestock pens, feed storage and feeding facilities, and sanitary sewers, plus the main sale building. The facility is as large and well-equipped as any livestock auction facility in Kansas.
In 1956, Joe Clemence, Edward B. Tolle, and E. R. McCullick began construction of another livestock auction facility on the west side of Salina, to be called Farmers and Ranchers. They drilled wells, completed the foundation and began brick work, then stopped the project, deciding instead to lease the existing Beverly facility. From 1956 until 1961 the Beverly facility was leased to Joe Clemence and another, and operated by Lawrence Clemence, E. R. McCullick, Edward B. Tolle, and H. Irvin Christiansen as the Clemence-Morrison Company. Beverlys were paid annual rent of $17,250.
In 1961 half the Beverly facility was leased to E. R. McCullick, Edward B. Tolle, and H. Irvin Christiansen. Beverlys leased the other half to themselves and entered into an agreement with the other lessees, providing for the joint operation of the facility. Beverlys then assigned their interest in both the lease and the operating agreement to Joe Clemence. The assignment reserved all the managerial prerogatives of Beverlys in the event of disputes between lessees. The operation was called Salina Livestock Commission Company.
Notwithstanding the lease and contract agreement to the contrary, Lawrence Clemence was shown as principal along with the lessees. For this and other reasons, Beverlys assumed their dealings with Joe Clemence included Lawrence Clemence at all times.
The tariff charged by the Salina Livestock Commission Company was changed and the operation was profitable. During the lease period from 1961 to 1964 the head count of livestock and net profits were:
1961 .................. 77,828 $74,571.73
1962 .................. 84,315 107,472.48
1963 .................. 87,633 90,392.11
1964 .................. 94,549 83,987.13
(Sales were conducted two days a week on Monday and Friday.)
In 1964 a new 5-year lease was negotiated with E. R. McCullick, H. Irvin Christiansen, and Edward B. Tolle. Because of increasing costs and taxes Beverlys increased the rent to $20,000 per year, and again leased half to themselves. The parties to the lease again signed an operating agreement setting forth the obligations and responsibilities of the parties. The operating agreement specifically provided:
“3. AGREEMENT:
“In consideration of the mutual advantages to be had by the parties hereto, they agree to associate themselves together for the purpose of engaging in the sale of livestock on commission under the terms, conditions and provisions hereof.
“4. NAME:
“The name of the operation shall be the salina livestock commission company, hereinafter referred to as ‘Commission’; and Jack Beverly, for advertising and good will, shall be the General Manager.
“6. WORKING CAPITAL:
“The Company and Beverly shall, on or before November 1, 1964, advance Ten Thousand Dollars ($10,000.00) each unto the fiscal agent as working capital. The Company and Beverly shall advance, from time to time, in equal proportions, such additional working capital as may be needed.
“7. PROFITS IN ABSENCE OF ELECTION:
“Unless Beverly or the Company electes to prorate net profits under Paragraph ‘3’ hereof, the net profits and losses of Commission shall be borne and shared, as follows:
“Beverly 50%
“Company 50%, which is to be equally divided among its three (3) venturers.
“10. RENT TO BEVERLY NOT COMMISSION EXPENSE:
“On determining net profits, rents to be paid Beverly as Lessor by the Company under said Lease shall not be deducted as an expense of Commission.
“15. NET PROFITS:
“Except as herein otherwise provided, all of the direct, actual, customary, reasonable bonafide expense of Commission shall be deducted from gross receipts in determining the net profit or losses of Commission. No participant is to draw a salary or any off premises personal or travel expense, payable by Commission. No participant shall directly or indirectly enter into: (a) an engagement or arrangement that is competition to Commission; or (b) incur any liability on Commission that is not a customary, prudent, reasonable, normal, bonafide and consistent with good faith prior standards. Customary and normal risks of the business shall be the liability of Commission.
“17. DUTY:
“The parties shall cooperate in advertising, promotion, employment of personnel, effecting maintenance, minimizing expenses, and operating an effective and efficient business.
“19, BEVERLY INTEREST:
“Beverly, subject to the procurement of the prior written consent of the Company, may “ ‘farm out’ ” from time to time, all or some part of his interest under the lease and this agreement.”
By written assignment and the construction placed on the assignment by the conduct of the parties, Joe Clemence became a member of the Salina Livestock Commission Company representing the interest owned by Jack Beverly. In return for his participation he was to receive one-fourth the profits of the Company, the other one-fourth to be paid to the Beverlys. Salina Livestock Commission Company was then incorporated, but Beverlys were not stockholders, officers, or directors of the corporation, nor did they take an active role in operation of the business.
Trade advertisements and public listings of principals included Lawrence Clemence, although he was not a signatory to the lease, operating contract, or assignment. In 1965, Lawrence Clemence contacted Beverlys demanding they cancel the existing operating agreement and lease and return to the straight lease of 1956 or he was going to build another sale barn. Joe Clemence, Edward B. Tolle, and H. Irvin Christiansen were present at meetings where such demand was made and were tacitly represented in this demand by Lawrence Clemence. Although several discussions took place, no other agreement was reached.
Rent and partnership profit received by Beverlys from November 1, 1964, through April, 1966, totaled $6,223.03 in 1964 (November and December); $33,255.41 in 1965 (full year); and $15,270.24 for the first four months of 1966.
Lawrence Clemence finished constructing Farmers and Ranchers, the project abandoned in 1956. He secured a license for Farmers and Ranchers in 1965, listing Merrill Christiansen, brother of H. Irvin Christiansen of Salina Livestock, as manager. Farmers and Ranchers opened in June, 1966. The record owners were Lawrence Clemence, Merrill Christiansen, and Robert D. Muir, each owning two-sevenths interest, and Thayne Tolle, owner of one-seventh interest.
At this point it is necessary to go into more detail concerning the business relationships existing between the Salina Livestock group and the Farmers and Ranchers group.
Robert D. Muir, owner of an interest in Farmers and Ranchers, is the stepson of E. R. McCullick. They are partners in M & M Cattle Company. The financial interests of the two are so closely intertwined as to be virtually indistinguishable. Beginning in 1961 or 1962, Muir “acted for” his ill stepfather as general manager and president of Salina Livestock until he went to Farmers and Ranchers. All of the income from Salina Livestock in the name of E. R. McCullick was paid to M & M Cattle Company and shared by Mc-Cullick and Muir until Salina Livestock closed in 1967. Muir used money from that company to purchase his interest in Farmers and Ranchers.
Robert D. Muir transferred from Salina Livestock to Farmers and Ranchers in 1965, even before it began operation. He drew plans and supervised construction of the yard and was also in charge of securing help. Various key employees of Salina Livestock, indeed, the “bulk of the help” as described by one defendant, transferred to Farmers and Ranchers. Mrs. Lawrence Clemence, who held the important job of maldng out custodial account checks and making certain the customers were satisfied with the accounting, worked at both Salina Livestock and Farmers and Ranchers while both operated sales on alternating days. John Carlin, office manager at Salina Livestock for many years, worked half time at both places. No salary increase was paid him but each company paid half his prior salary. Other Salina Livestock employees, including auctioneers, yard foreman, and fifty percent of the yard help went to work for Farmers and Ranchers at the request of Muir.
Merrill Christiansen borrowed money from his brother, H. Irvin Christiansen of Safina Livestock, to purchase his two-sevenths interest in Farmers and Ranchers. They had been partners in owning several other sale barn operations in other towns and they own grassland and cattle as partners.
Thayne Tolle is the son of Edward B. Tolle of Safina Livestock, and the owner of one-seventh interest in Farmers and Ranchers, an investment of approximately $30,000. He teaches music in the Wichita schools, has lived in Wichita since 1966, and has never participated in the operation of Farmers and Ranchers or any other livestock auction business. He admits he was not competent to quote any cattle prices. Lawrence Clemence admits he did not need any partners in Farmers and Ranchers for mere financial reasons since he could have financed it all himself. Notwithstanding this and despite his inactive role, Thayne Tolle received his share of the profit from the operation in the same manner as the active, unsalaried owners.
The success of Farmers and Ranchers and the failure of Salina Livestock was almost immediate. Business was diverted from Salina Livestock to Farmers and Ranchers without protest from owners of Salina Livestock. The son-in-law of Edward B. Tolle sold his cattle in the fall of 1966 at Farmers and Ranchers on the advice of his father-in-law. He also told another prospective customer in September, 1966, to take his cattle to Farmers and Ranchers. Edward B. Tolle attended “quite a few” sales at Farmers and Ranchers. H. Irvin Christiansen sold $51,348.21 worth of his own cattle at Farmers and Ranchers in 1966. Joe Clemence attended almost every sale at Farmers and Ranchers, purchasing and selling cattle there after July 1, 1966. E. R. McCullick attended the sales almost every week. The situation was admitted by Joe Clemence as being “extremely confusing and a mystery to the general public.”
The Monday sale at Salina Livestock was cancelled. In the words of Edward B. Tolle, things were “getting pretty bad” in December, 1966. Head count comparisons for Salina Livestock from the previous year are illustrative of the rapid decline of the business:
Month 1965 1966
August ................. 7,554 4,421
September .............. 9,958 4,496
October ................ 15,622 8,351
November .............. 14,271 3,882
December .............. 8,940 1,748
Total sold August through December, 1965, was 56,345 head. Total sold August through December, 1966, was 22,898 head.
Beverlys observed the change in the business and the transfer of help. They complained to the president and general manager of Salina Livestock, E. R. McCullick. Beverlys received only half the monthly rent due from August through December, 1966. This suit was commenced December 16, 1966. Only half of one month’s rent was paid to Beverlys in 1967. The head count comparisons with the previous year continued to show a declining and nearly defunct business at Salina Livestock:
Month 1966 1967
January ................... 8,645 351
February.................. 8,361 140
March .................... 9,346 265
Total sold January through March, 1966, was 26,352 head. Total sold January through March, 1967, was 756 head.
On March 20, 1967, E. R. McCullick, H. Irvin Christiansen, Edward B. Tolle and Joe Clemence sent written notice to Beverlys that they were vacating the Salina Livestock-Beverly premises and would not pay further rent or perform any of the “further terms of said contracts and operating agreement.” As of March 31, 1967, Salina Livestock had $7,569.99 in its bank account and continued to pay John Carlin, then office manager of Farmers and Ranchers, half his salary from that account until the end of 1967.
After notice and vacation of the premises, Beverlys requested that Salina Livestock defendants transfer the license to them so they might attempt to operate the premises and mitigate damages, but this request was refused. Beverlys then requested a renewal of the Salina Livestock license be issued to them, but Salina Livestock defendants again blocked their re-entry into the auction business by requesting renewal in their own name. Salina Livestock defendants represented to the Kansas Livestock Sanitary Commissioner that the renewed license would be used by them to operate the Beverlys’ premises from which they had already vacated and removed equipment, and had no intention of reviving. No renewal license was issued to either Beverlys or Salina Livestock owners. Beverlys then applied for a new license and at a hearing on that application on September 27, 1967, all named defendants except Thayne Tolle appeared with their attorneys to protest the application, giving as their reason that the Salina area could not support three livestock sale facilities. The license was subsequently issued to Beverlys on October 3, 1967, and Farmers and Ranchers owners appealed that order. The appeal was later dismissed and Beverlys re-opened their facility for business, operating it themselves. Because of the shifting of personnel, the manner of operation just prior to its closing under Salina Livestock owners, and the complete cessation of business for nine months, Beverlys were unable to generate enough operating revenue to pay the taxes and insurance, much less turn a profit.
The trial court made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“1. By virtue of the lease, the operating agreement, the memo, and the assignment, and [sic] [an] express partnership agreement existing [sic] [existed] between the Plaintiffs as nonmanagement partners and Defendants E. R. McCullick, H. Irvin Christiansen, Edward B. Tolle and Joe Clemence as active partners. Because of the finding concerning conspiracy as hereinafter contained, a finding as to the inclusion of Defendants Lawrence Clemence and Robert D. Muir in the partnership as direct parties is unnecessary.
“2. As a result of the relationship of the Defendants above named and the Plaintiffs, the Defendants as named had a fiduciary obligation and duty to the Plaintiffs in the nature of a trust.
“3. The named Defendants conspired together with the remaining individual Defendants, to deprive the Plaintiffs of the monetary benefits of the agreements creating the partnership and to so damage the premises of the Plaintiffs, which was made the subject of the lease, that they would be irreparably and permanently damaged. Such acts of the Defendants related to the following:
“a. Construction of a competing livestock auction company.
“b. Transfer of the employees from the Salina Livestock to Farmers and Ranchers.
“c. Sent business of Salina Livestock to Farmers and Ranchers.
“d. Conduct of the business of the Salina Livestock in such a way so as to make the same undesirable to the customers and potential customers and to transfer the customers to the new business.
“e. Refusal to transfer public livestock market license after abandonment of the premises.
“f. Delay the securing of a public livestock marketing license for the premises of the Plaintiffs for sufficient time so as to cause a complete loss of the business of the facilities of the Plaintiffs and to transfer the business to the new facilities of the Defendants.
“4. Plaintiffs suffered damages by loss of rents and other actual damages to the business of the Plaintiffs of $250,000.00.
“5. That the acts of the Defendants in causing the damages to the Plaintiffs as aforesaid were the result of a willful, intentional and malicious conspiracy by all of the individual Defendants for the purpose of damaging the Plaintiffs. The Plaintiffs should recover the sum of $100,000.00 as punitive damages as a result of the willful, intentional and malicious acts of the Defendants in causing the damages to the Plaintiffs.
“6. The evidence wholly fails to show that the agreements as aforesaid were fraudulently obtained by Plaintiffs.
“7. The counterclaims of the Defendant, Joe Clemence, have not been presented to the Court. No evidence was introduced on such claims. They are hence denied.
“CONCLUSIONS OF LAW
“1. A partnership both express and implied existed between the Plaintiffs and Defendants E. R. McCullick, H. Irvin Christiansen, Edward B. Tolle and Joe Clemence.
“2. Defendants as named each had a legal duty to the Plaintiffs of the utmost fidelity and trust. The legal duty of such Defendants is especially stringent since they were managing the business, which duty was analogous to that of trustees.
“3. Plaintiffs may recover damages from the named Defendants for actual damages resulting from a breach of the duty of trust owed by such Defendants to the Plaintiffs.
“4. A conspiracy may be proved by evidence tending to show that two or more persons conspired to cheat and defraud others. The evidence shows that Defendants conspired together through a cooperative effort to cheat and defraud Plaintiffs.
“5. A conspiracy may be proved by circumstantial evidence.
“6. Each conspirator is liable for the acts of all co-conspirators.
“7. Punitive damages may be allowed to punish Defendants for their willful, intentional and malicious conduct in defrauding Plaintiffs. Such damages are the joint and several obligation of each Defendant as a party to the conspiracy.”
We are bound by the familiar rule of this court that we cannot disturb the trial court’s findings of fact if a search of the record reveals competent substantial evidence to support the findings. (Huxol v. Nickell, 205 Kan. 718, 473 P. 2d 90.) Defendants claim this rule is not applicable to the issue of the relationship of parties; that is, whether plaintiffs were the landlords of the Salina Livestock group or whether they were partners. The purpose of defendants claiming a landlord-tenant relationship is to avoid the fiduciary relationship of partners and limit the recovery to loss of rents. The basis of the contention is that the relationship of the parties depends on a construction of the written instruments involved; namely, the lease, the operating agreement, and the assignment, and is therefore a question of law.
Whether a partnership exists between particular persons is a mixed question of law and fact. If there is no dispute as to the facts the question is one of law for the court to determine. If the agreement under which a business arrangement is carried on, and which is claimed to be a partnership, is in writing, and free from ambiguity or doubt, its legal effect must be determined as a matter of law. If an attempt to establish a partnership wholly fails through lack of evidence, the court may properly decide as a matter of law that no partnership exists. The existence of a partnership is also a question of fact, and it is the province of die court in absence of a jury to decide whether those facts exist which show that a partnership has been formed. (Stalker v. DeWitt, 142 Kan. 709, 51 P. 2d 1012.)
The trial court found a partnership existed between the Beverlys and each of the Salina Livestock group. The Stalker case approves the following definition of a partnership from 47 C. J. 640:
“‘A contract of two or more competent persons, to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss, in certain proportions.’” (p. 715.)
In Potts v. Lux, 161 Kan. 217, 166 P. 2d 694, we find a more comprehensive test as to the existence of a partnership:
“Numbered among the often approved tests to which we have referred are the following: Intention of parties to the contract; sharing in profits and losses; charging of losses against accumulated profits; community of control over management and direction of the business; active participation in management of the affairs of the enterprise; joint control and exercise of ownership over all or part of the business assets; participation in division of the net earnings; sharing in payment of expenses of operation; fixing of salaries by joint agreement; investment in the business of undistributed profits for •the purpose of building up a substantial cash reserve; division of undistributed profits in the event of liquidation contingent upon repayment to one of the parties of cash originally invested in capital.” (p. 222.)
Conceding defendants’ argument that we should limit a determination of this issue to the written instruments, we are satisfied the trial court was correct. The operating agreement defined the relationship of the parties. It provided the parties would associate for the purpose of engaging in the sale of livestock on commission under the name of Salina Livestock Commission Company, with Jack Beverly to act as general manager for advertising and good will. The operating capital was to be advanced in equal proportions, as well as additional working capital if needed, with net profits and losses to be borne 50% by Beverly and 50% by the other participants. No salary was to be paid to any participant, but all bona fide expense of the commission was to be deducted to determine net profit or loss. The participants agreed not to enter into an engagement or arrangement which was, directly or indirectly, competition to the commission. The parties further agreed to cooperate in advertising, promotion, employment, effecting maintenance, minimizing expenses, and operating an effective and efficient business. Provision was also made to permit Beverlys to “farm out” all or some part of their interest in the lease and the agreement subject to the prior written consent of the company. Hie defendants point out several provisions of the agreement and the assignment that are consistent with a landlord-tenant relationship and we concede they have merit. Our function, however, is to consider and give effect to the whole of the agreement and, having done so, we conclude that a partnership was created.
The defendants also contend the trial court erred in finding the Salina Livestock group conspired with the Farmers and Ranchers group to damage the plaintiffs. We are concerned with the sufficiency of the evidence to support the conclusion of conspiracy. Mere conspiracy is not actionable, but harmful consequence and damage resulting from conduct pursuant to conspiracy is actionable. (Beneke v. Bankers Mortgage Co., 135 Kan. 444, 10 P. 2d 825.) The nature of proof in a conspiracy action is well stated in Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P. 2d 298:
“ ‘The combination or conspiracy may be proved by evincing a concurrent knowledge and approbation in the persons conspiring, of each other’s acts; and it is usually done by proof of the separate acts of several persons concentrating in the same purpose or particular object. . . . For the purpose of showing such connection, therefore, circumstantial evidence suffices. The plaintiff may either prove the conspiracy which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy.’ (5 R. C. L. 1103, 1104.)” (p. 723.)
A further statement on nature of proof is found in Rickel v. Cooperative Exchange., 113 Kan. 592, 215 Pac. 1015:
“It is well settled by the authorities that conspiracy, when charged either in a civil or a criminal case, may be proved by circumstantial evidence. It is proper to prove the charge by direct evidence, but as the direct evidence is ordinarily in the possession and control of the alleged conspirators, frequently the opposing party cannot obtain it. Hence, in actual practice, it is usually proved by circumstantial evidence, and where the charge is made its tendency is to open rather a wide field of inquiry.” (p. 600.)
Considering the evidence in the light most favorable to the plaintiffs we find the trial court’s conclusion that the defendants conspired to damage the plaintiffs is supported by the evidence.
The defendants contend the actual damages, if any, should be limited to loss of rents and profits during the term of the lease and the operating agreement. They argue the loss of rents and profits are the only damages that arise naturally from the breach of the contract and the only damages that could have been reasonably contemplated by the parties. This action is not limited to breach of contract. The trial court found each of the defendants was guilty of conspiracy. Conspiracy is a tort and all injuries and losses that are the natural and probable results of the wrongful and tortious acts are recoverable. (Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46.) Diminution of the value of plaintiffs’ business facility, as well as the loss of rents and profits, were the natural and probable results of defendants’ tortious acts. Although the Salina Livestock group are liable to plaintiffs as co-conspirators with the Farmers and Ranchers group, they also bear responsibility for breach of the partnership fiduciary relationship. The record contains sufficient evidence to support the trial court’s finding of actual damages.
The defendants also seek review of the judgment for punitive damages. We have said that punitive damages are recoverable in cases characterized by malice, fraud, or willful and wanton disregard for the rights of others. (Hess v. Jarboe, 201 Kan. 705, 443 P. 2d 294.) The evidence disclosed acts of defendants sufficient to support an award of punitive damages. We will not review all the evidence supporting punitive damages, but the intention of the defendants is clearly demonstrated by their efforts to prevent plaintiffs from obtaining a license in order to keep plaintiffs’ facility closed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from the district corut’s judgment entered in an action in mandamus.
Appellant Wilson is the respondent in a workmen’s compensation proceeding which, at the time the action was filed, was pending before the appellee, a hearing examiner for the workmen’s compensation director.
The claimants in the proceedings attempted to procure evidence in support of their claim by submitting interrogatories to respondent. Respondent declined to answer the interrogatories and the matter was presented to the examiner. The examiner took the extraordinary position of requiring the respondent to answer the interrogatories or suffer, apparently as a sanction, the entering of an award in favor of claimants. Respondent, faced with this predicament, filed this action in mandamus against the examiner seeking declaratory relief by way of a peremptory writ [order] of mandamus directing the examiner to withdraw his order directing respondent to answer the interrogatories and further to direct the examiner to refrain from punishing respondent.
In the district court, appellant Wilson filed a motion for summary judgment on the grounds that the pleadings and records in the case conclusively showed that it was entitled to judgment as a matter of law.
The examiner filed a motion to dismiss specifying three grounds, the first of which was:
“The plaintiff had an adequate remedy by perfecting a timely application for review of the Examiners ruling to the Workmen’s Compensation Director as provided by law;”
The examiner further alleged that the director had exclusive jurisdiction of the case until all evidence was presented and further that the action of the examiner was proper.
The trial court considered both motions and concluded that mandamus was not a proper remedy since Wilson had an adequate remedy as alleged in the examiner’s motion. This ruling, in effect, is a finding of no jurisdiction over the subject matter requiring a dismissal of the action and thus any further rulings of the district court are a nullity.
Findings or rulings of a hearing examiner have no effect in and of themselves and are subject to the approval, amendment or rejection by the director. (Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P. 2d 828; and Harper v. Coffey Grain Co., 192 Kan. 462, 388 P. 2d 607.)
As the examiner pointed out in his motion to dismiss, Wilson had an adequate remedy by perfecting a timely application for review of the examiner’s rulings to the workmen’s compensation director as provided by law. (K. S. A. 1972 Supp. 44-551 and 44-556; and K. A. R. 51-18-2.)
It is well-established in a long line of decisions of this court that mandamus will not lie where petitioners have not availed themselves of and exhausted other adequate remedies. (John Hancock Mutual Life Ins. Co. v. Sullivan, 179 Kan. 167, 294 P. 2d 234; Vol. 4 Hatcher’s Kansas Digest [Rev. Ed.], Mandamus, §§ 18 and 20; and Vol. 6A West’s Kansas Digest, Mandamus, § 3.)
If the district court has no jurisdiction over the subject matter this court has no jurisdiction on appeal. (Bammes v. Viking Manufacturing Co., supra.)
The district court correctly sustained appellee’s motion to dismiss but had no jurisdiction to enter any further judgment.
The judgment is affirmed as modified.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
Plaintiffs seek to impose a constructive trust on five oil and gas leases covering 540 acres in Sections 5 and 6, Township 27S, Range 7E, in Butler County, Kansas, based upon their claim that said acreage was a natural outgrowth of a joint drilling venture entered into by the parties to this action. The original drilling venture leases covered 600 acres in Sections 32 and 33, Township 26S, Range 7E, in Butler County, Kansas, and will be referred to herein as the PMA land. Protective leases covering an additional 360 acres of land on the north, the west and the south of the PMA land were taken as an extension of the original drilling venture. There is no qriestion raised with respect to the protective leases which have been nonproductive.
The defendants successfully contended in the court below that the leases which were taken by them on the 540 acres were no part of the joint drilling venture on the PMA land. There was evidence these leases were merely a part of an additional 3900 acres leased by defendants, Rex and Morris, in the neighborhood.
After a trial in the district court judgment was entered for tire defendants based upon findings that the wells drilled by the defendants on the 540 acres were not on leases within the scope of the original drilling venture as contemplated by the parties and that the wells thereon were not an extension of production in the PMA pool.
Plaintiffs appeal asserting that the undisputed facts require a judgment in their favor. It therefore appears necessary to summarize some of tire facts disclosed by the evidence.
The plaintiffs Foley and Loomis have been interested in exploration and production of oil for many years, however their interests have been restricted to investment as distinguished from actual drilling and operating oil wells.
The defendants Rex and Morris are seasoned oil operators in this area. They own and manage an. oil well drilling company, they operate producing wells and they own oil interests in the immediate area. They have operated both jointly and severally in the area dating back to 1930. Although Rex is made a party defendant in this action he was not interested in the joint drilling venture on the PMA land. The defendant L. E. Phillips, Jr. is also a seasoned oil operator.
The original venture was conceived in this manner. In 1966, George A. McCaleb, a geologist, became interested in the geology underlying the PMA land in Section 32. Production had previously been obtained by Rex and Morris one mile north in the Young pool. There were other producing wells within a radius of four miles from the PMA land.
On the basis of information available in the area McCaleb prepared a stratigraphic contour map of the Mississippi formation underlying Section 32. The map indicated a “high” within the boundaries of the NW/f of the section. Armed with his map and a personal conviction that oil could be produced from the NWM of Section 32 he approached a driller by the name of L. C. Crowe. McCaleb and Crowe, neither of whom are parties to this action, conceived the original plan to promote a drilling venture on the PMA land. This land is owned by a family corporation and the plaintiff Foley is a principal stockholder of the corporation. Crowe talked with Foley about the prospective drilling venture and obtained a lease through him on 440 acres of the PMA land. McCaleb then obtained a lease on 160 acres of adjoining land, known as the Cowell land, which is also located in Section 32. After these leases were obtained Crowe and McCaleb began looking for investors interested in acquiring shares in the leases in order to spread the cost of drilling. Before the first producing well was drilled the working interest in these leases was owned as follows: L. C. Crowe, Mth; L. E. Phillips, Jr., Mis; J. E. Morris, Mth; and the plaintiffs, Foley and Loomis, Mth. The geologist, McCaleb, received a Vioth overriding royalty interest in the leases for his part in setting up the drilling venture. It was understood that Crowe was to be the driller and operator.
The first producing well was drilled June 6, 1966, in the NWM of Section 32. Shortly thereafter Crowe, Phillips, Morris and McCaleb met and discussed the need, if any, for additional protective leases. Foley and Loomis were not present. McCaleb at that time explained the limited nature of what he believed to be the producing pool and attempted to disco-mage the taking of protective leases. However, tire others agreed that 360 acres in protective leases should be taken on the north, west and south boundaries of the original acreage. The leases were obtained in June, 1966, and the original owners of the working interests (Crowe, Phillips, Morris, Foley and Loomis) received assignments for their respective shares of these leases which extended the scope of the original drilling ventme. Five producing wells and two nonproducers were drilled on the PMA land; all were located on the NWM of Section 32.
As a result of the drilling of the PMA wells interest in oil exploration was revived in the area. Rex and Morris renewed their former interest which dated back to 1930 and they obtained leases on approximately 3900 acres lying to the east, southeast, south and southwest of the PMA lands. The first of these leases was taken during the latter part of June, 1966. Their leasing activities in the area con tinued on through 1966, 1967, and 1968, until they held leases on the entire 3900 acres to which we have previously referred.
In February, 1967, after 5 wells had been drilled in the PMA pool, L. E. Phillips, Jr., one of the adventurers in the PMA .drilling venture, had his son, a geologist, supervise core hole surveys in the area to the south of the PMA pool. At least one core hole was drilled on the PMA land. The Information from these surveys was used in connection with information available on the PMA wells and other wells in the general area to complete a stratigraphic contour map of the Kansas City and Mississippi formations south of the PMA pool.
In September, 1966, Rex and Morris set up a separate drilling venture on portions of their acreage and interested Phillips and Crowe in the venture. The working interest in this drilling venture was owned as follows: Rex and Morris, %eths; Phillips, %sths; and Crowe, Isth.
After this drilling venture was promoted two dry holes were drilled in September, 1966, one was located two miles east of the PMA pool and the second was drilled more than a mile south of the PMA pool. Then in May, 1967, after the core hole surveys were completed, a producing oil well was drilled in the NEK of Section 6. The lease on which this well was drilled adjoined the protective leases taken in connection with the PMA drilling venture, between May 21 and September 30, 1967, six producing wells were drilled in tiie EK of the NEK of Section 6 and the WK of the NWK of Section 5. These wells are located in what will be referred to as the Henn pool. The Henn pool is located approximately one mile south of the PMA pool. Two dry holes have been drilled on locations bordering the Henn pool, one on the north and one on the northwest, and at least one additional dry hole has been drilled a mile east of the Henn pool. The 540 acres on which the plaintiffs seek to impose a constructive trust include the acreage which encompasses the Henn pool. These leases were taken by Rex and Moms on June 25, 1966, February 3, 1967, and April 24, 1967. The present action was filed February 10, 1969, 17 months after the last producing well was drilled in the Henn pool and twenty months after the last producing well was drilled in the PMA pool.
The parties to this action are agreed that a joint drilling venture existed between the parties who owned interests in the leases on the PMA and Cowell land in Section 32 together with the land covered by the protective leases. However, the plaintiffs contend this joint drilling venture encompassed not only the wells drilled on the PMA land but extended to the leases taken by Rex and Morris and the wells drilled in May, June, July, August and September, 1967, on the Henn land. In support thereof they argue the Henn pool is but an extension of the PMA pool and that production was obtained in the Henn pool by use of confidential information acquired by Phillips and Morris from the drilling of the PMA wells and from core hole surveys taken in part on the PMA land.
The rights and duties of coadventurers in oil and gas ventures have received attention in Kansas for many years. See Crawford v. Forrester, 108 Kan. 222, 194 Pac. 635; More v. Burroughs, 111 Kan. 28, 205 Pac. 1029; Whan v. Smith, 130 Kan. 9, 285 Pac. 589; Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043; Ballard v. Claude Drilling Co., 149 Kan. 506, 88 P. 2d 1021; Yeager v. Graham, 150 Kan. 411, 94 P. 2d 317; Grannell v. Wakefield, 172 Kan. 685, 242 P. 2d 1075; Potucek v. Blair, 176 Kan. 263, 270 P. 2d 240; and Martin v. Hunter, 179 Kan. 578, 297 P. 2d 153. The relationship of coadventurers in oil and gas ventures is one of trust and confidence in all matters respecting the conduct and operation of the business for which the joint venture was formed, and each adventurer must deal fairly and in good faith in the subject matter of the venture for the benefit of all coadventuxers. (More v. Burroughs, supra; Ballard v. Claude Drilling Co., supra; Potucek v. Blair, supra; Martin v. Hunter, supra.)
A joint venture is distinguished from a partnership in that the joint venture generally relates to a single business venture with limitations as to purpose and extent of the operation. In 4 Summers Oil and Gas, Sec. 721.1, p. 264, it is stated:
“A joint adventure is usually defined as an association of persons, created by express or implied agreement, who combine their property, knowledge and efforts to carry out a single business venture for the purpose of realizing a profit. . . .”
In Martin v. Hunter, supra, it is said:
“. . . The general rule is that until the joint adventure has terminated or the enterprise has been abandoned, a joint adventurer cannot exclude his associates from an interest in the property by purchasing it for his individual account; neither can he acquire for his individual benefit, or for the benefit of himself and one of the other co-adventurers, an interest therein antagonistic to the interest of his co-associates, and if he does so purchase or acquire such interest in breach of his duty to his co-adventurers, he must account to them therefor, [citations omitted]” (179 Kan. p. 586.)
However, where the scope of an oil and gas drilling venture is determined, and certain identified leases are taken the fiduciary relationship created thereby extends only to those leases within the scope of the venture and to any additional leases which are available and which may be necessary to fully exploit the particular source or pool discovered as a result of the venture. The fiduciary relationship created by a joint drilling venture does not forbid further acquisition and development of leases in the general area by individual venturers so long as these leases are not embraced within the scope of the enterprise or are not a natural outgrowth therefrom.
In 46 Am. Jur. 2d, Joint Ventures, § 54, pp. 74, 75, it is stated:
“Obviously there can be no recovery by one coventurer for property acquired by another after the joint venture has been completely terminated. . . . Clearly, where a joint venture has been formed for the acquisition, ownership, or development of certain defined property, the fiduciary relationship does not forbid the acquisition, ownership, or development by one of the parties for his own benefit of property not embraced in the enterprise and outside its scope.”
Our cases agree with the above statement of law. In our present case the primary issue presented and tried by the district court was whether the acquisition, ownership and development of the leases on Sections 5 and 6 (the Henn land) were embraced in the enterprise and were within the scope of the joint drilling venture on Section 32 (the PMA land). The trial court found they were not. There was evidence that the production on the Henn land was from an entirely separate source and separated by a closure. If there is substantial evidence to support the findings of the trial court they will not be disturbed on appeal. (Mann v. Good, 202 Kan. 631, Syl. ¶ 1, 451 P. 2d 233; Branstetter v. Cox, 209 Kan. 332, 336, 496 P. 2d 1345.)
The two men who conceived and promoted this joint drilling venture, McCaleb and Crowe, are not parties to this action yet both testified that Sections 5 and 6 (the Henn land) were not embraced in the PMA enterprise and were outside its scope. The stratigraphic contour map furnished by McCaleb and used by him in “selling” the venture to Crowe did not include the Henn land. All coadventurers were acquainted with the nature of the area in which the drilling venture was to be carried on. Prior production in the area was limited to relatively small pools where “highs” were found. There had been production in the area for over 35 years. At least two geologists, in addition to McCaleb, testified that the configuration appearing on the stratigraphic contour maps of the area covering both the Mississippi and the Kansas City formations indicated to them there was a closure which sealed off communication between the PMA pool in Section 32 and the Henn pool in Sections 5 and 6. The PMA wells produced from the Mississippi formation and the Henn wells produced from the Kansas City formation. This lack of communication between the two pools has been confirmed to some extent by dry holes drilled on the edges of the two pools and by a failure of either group to further expand the two pools into the area separating them, a distance of approximately one mile.
The evidence in this case was conflicting in many important details but after a careful examination of the record we cannot say that the wells drilled in Sections 5 and 6 were a natural outgrowth and expansion of the joint drilling venture initiated a year earlier on Section 32. The appellants rely heavily upon Kaye v. Smitherman, 225 F. 2d 583 (10 CA). The defendants in that case obtained a 914 acre block of leases adjoining the initial 480 acre joint venture block. The defendants contended the 914 acre block was a “separate deal” unrelated to the initial 480 acre block. The trial court there found the 914 acre block was a “natural outgrowth” of the initial joint venture acreage and that acquisition of the block “was a continuation of the exploitation” of the initial area contemplated by the joint venturers. There, as in our present case, the original joint drilling venture was sold on the basis of a stratigraphic map. The difference is that in Kaye v. Smitherman, supra, the map showed the likely presence of a single production source covering the entire area of both blocks of leases and the trial court found that the 914 acre block was acquired in reliance on the geological information furnished by the other coadventurers. In Kaye all wells in both adjoining blocks were producing from the same formation and from approximately the same depth; not so in the present case.
We see no useful purpose in further narrating the conflicting evidence contained in the record. The facts in evidence favorable to the defendants sustain the trial court’s findings. This is essentially a fact case and the trial court’s findings and judgment are supported by substantial evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, St. Francis Hospital and School of Nursing, Inc., has appealed from a $22,500 judgment rendered against it for personal injuries sustained by the plaintiff, Myrtle M. Barnes, while a patient in the hospital. The parties will be referred to as plaintiff or Mrs. Barnes, on the one side, and defendant or hospital, on the other.
On October 27, 1967, plaintiff was admitted to the St. Francis Hospital by her attending physician, Dr. Milbank, for a hemorrhoidectomy. She was operated the next day. Following surgery she devolped a hard, sore, indurated area in the left buttock, which was medically diagnosed as fat necrosis. She was dismissed from the hospital November 6, and returned to the emergency room the next day where an incision was made under local anesthesia. On November 9, Mrs. Barnes was readmitted to the hospital and conservative treatment was administered. She was discharged and returned home November 28. Mrs. Barnes was again readmitted to the hospital on December 8. This time surgery was performed and plaintiff remained hospitalized until January 2, 1968.
Several points are raised on appeal. The first three relate to the trial court’s failure to sustain motions for directed verdict in defendant’s favor, while the fourth concerns the denial of a motion for judgment notwithstanding the verdict. In effect, these points raise a central question for us to determine: Is there substantial competent evidence to support the verdict? We address ourselves to this point.
Plaintiff’s evidence tends to show that the fat necrosis, which we understand denotes the death of fatty tissue, was caused by an injection of dramamine (a drug for control of nausea) administered subcutaneously in the area of the left hip; that the correct way to administer the drug hypodermically is to inject it into the muscle, i. e., by intramuscular injection, where the absorption is better; that dramamine cannot safely be injected into the subcutaneous tissue, since it is an irritating substance and will cause the tissues to die; and that the injection of the drug subcutaneously is not good nursing procedure and falls below the degree of care and skill employed by hospitals generally in Wichita or similar communities.
In defense of the plaintiff’s charges of negligent and unskillful care, the defendant contends that the nurse who administered the dramamine injection was simply carrying out an order improperly given by Mrs. Barnes’ treating physician. Hence, the hospital maintains it cannot be held hable for damages unless negligence be established in giving the injection, or unless it be shown that the doctor’s order was so obviously improper as would cause it or its employees to anticipate injury.
The doctor’s order, placed over the phone, was for dramamine to be given hypodermically. The evidence reflects that “hypodermically” means either subcutaneously or intramuscularly; that nurses are familiar with how different drugs are administered, and that nursing judgment has to be used in determining whether an injection should be given subcutaneously or intramuscularly where it has not been spelled out. Various nurses employed at the defendant hospital testified that dramamine, if given by needle, is to be administered deep, that is, intramuscularly; that it cannot be given subcutaneously because it is irritating; and that the doctor’s order was given in the ordinary way, where the drug is as well known as dramamine. Indeed, we learn from the notes of the nurse who gave the injection that she charted it as having been given IM (intramuscularly).
We believe there is abundant evidence to establish knowledge on the part of the nursing staff that dramamine, if administered hypodermically, rather than orally, must be given intramuscularly, even though the doctor’s order may not be specific on this point. There is also evidence from which a reasonable inference may be drawn that the needle used in giving the injection was not long enough to reach the gluteus muscle, Mrs. Barnes being a woman of considerable girth and fleshy withal.
In view of the testimony as we have it summarized from the record we are forced to conclude there was sufficient evidence to take tire case to the jury and to support the jury’s verdict. Accordingly, under familiar principles, the verdict cannot be disturbed on appeal in the absence of other error. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 495.)
It is next argued that Dr. Taylor, who testified on behalf of Mrs. Barnes as an expert witness, was not competent to testify as to the standards of care and skill required of hospitals in communities such as Wichita. In a recent case, Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P. 2d 1013, this court considered this very question in depth, and having done so clearly spelled out the rule which now obtains in this state:
“A witness, qualified as a medical expert, who claims knowledge of the degree of care and skill, used by hospitals generally in the community where an injury occurred and gives a reasonable explanation of how such knowledge was acquired, may testify concerning such matters even though he had not practiced medicine in the particular community. (Syl. ¶ 1.)
“Pursuant to K. S. A. 60-419 and 60-456, the test of competency of an expert witness is whether he discloses sufficient knowledge to entitle his opinion to go to the jury. Where an expert witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury the question of degree of his knowledge goes more to the weight of the evidence than to admissibility. (Following Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518.)’’ (Syl. fa.)
Dr. Taylor’s qualifications appear to bring him within the framework fashioned by the Avey decision. He is a doctor, a graduate of Indiana University Medical School, and has practiced medicine in Indiana and Arizona. He is an assistant professor of anesthesiology at the Kansas University Medical Center, with which he has been connected since 1968. Dr. Taylor testified that he had seen the Nursing Procedure Manual and the Nurse Service Policy Manual of St. Francis Hospital, with particular reference to techniques for injection; that he was familiar with the proper method of giving injections, whether hypodermic or intramuscular; that he was familiar with the proper way of giving injections of dramamine in Wichita and has read manuals with respect to the way persons are educated to administer injections in Wichita; that the technique of giving injections, either subcutaneous or intramuscular, is pretty much the same whether given in Wichita, Kansas City or wherever you happen to be; that this is something which is basically taught in nursing school.
The fact that Dr. Taylor had never practiced medicine in Wichita does not disqualify him under the Avey rule, since it otherwise appears he is familiar with the degree of care and skill used generally by hospitals in that community. The qualifications of a witness to testify as an expert on a particular subject are ordinarily for the trial court to determine in the exercise of its sound judicial discretion. (Avey v. St. Francis Hospital & School of Nursing, supra; Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567.) We discern no abuse of that discretion here. The weight to be given Dr. Taylors testimony was a matter for the jury to decide and in determining that question, the jury was entitled to consider the degree, the depth and the sources of his knowledge in those areas about which he testified. (Avey v. St. Francis Hospital & School of Nursing, supra; Casey v. Phillips Pipeline Co., 199 Kan. 538, 549, 431 P. 2d 518.)
Objection is next directed to the hypothetical question propounded to Dr. Taylor as to the cause of the fat necrosis suffered by Mrs. Barnes. The defendant first says the question was too long, was poorly constructed and was confusing. To an extent this may be true, but Dr. Taylor apparently had no difficulty in comprehending and understanding die question, nor do we believe the jury could have been misled or bamboozled thereby.
The principal basis of the defendant’s complaint against the hypothetical question centers on plaintiff’s failure to incorporate therein any reference to the order for dramamine given by Mrs. Barnes’ doctor over the phone. This ground of objection was not raised at the trial. Rather, an entirely different ground of objection was advanced. Hence, review is barred by the contemporaneous objection rule which requires that timely and specific objection be made before the admissibility of evidence will be considered on appeal. (State v. Freeman, 195 Kan. 561, 564, 408 P. 2d 612, and authorities cited therein; see, also, K. S. A. 60-404 which codifies the rule.) Our decisions are to the effect that where, at the trial, an objection is made to the admission of testimony on a ground held to be insufficient, this court on appeal will not consider another or different ground for such objection. (Botkin v. Livingston, 16 Kan. 39, 41; State v. Coover, 69 Kan. 382, 384, 76 Pac. 845; Edmondson v. Beals, 27 Kan. 656.)
Furthermore, we fail to comprehend what relevance the doctor’s order might have had to the hypothetical question propounded, in view of the way the question was framed. The question called for Dr. Taylor’s opinion only as to causation, i. e., what caused the fatty necrotic condition. In response to this query, Dr. Taylor testified that the condition was caused by a subcutaneous injection of dramamine into the left hip area. It appears to us that what the doctor may have said in ordering the injection would not be material in establishing the cause of the necrosis.
We reach defendant’s seventh specification of error. The background is as follows: Prior to trial the plaintiff deposed Dr. Reals, a witness listed by the defendant. Dining the course of his examination the doctor was asked as to the cause of Mrs. Barnes’ necrosis (which he termed fortuitous) and the basis on which his opinion was formed. At that time, Dr. Reals said he had reviewed the hospital admission report, the nurses reports and notes, photographs and all the charts. When testifying at the trial, the doctor related he had also examined some microscopic slides prepared from tissue specimens and was asked to testify about them. The slides themselves were not offered in evidence. The plaintiff objected vehemently, claiming surprise and lack of opportunity to cross-examine Dr. Reals from the slides.
After lengthy argument the trial court sustained the plaintiff’s objection, and this ruling is assigned as error. The talcing of pretrial depositions is part of the discovery process authorized by the code of civil procedure. (K. S. A. 1972 Supp. 60-226.) It is not presumptuous to assume that among the purposes to be served by discovery procedures is that of finding out what an adversary’s witness may know concerning matters in controversy and what his testimony will probably be, thus eliminating, so far as possible, the element of surprise.
We cannot fault the court in its ruling. In view of the provisions of K. S. A. 1972 Supp. 60-226 (e) we believe that Dr. Reals should seasonably have amended his deposition by disclosing that he had examined the pathological slides in forming his opinion, in addition to the documents mentioned in his deposition. Since no seasonable disclosure was made, it is our opinion that the trial court did not exceed the bounds of sound judicial discretion in excluding the doctors testimony concerning the slides. (See discussion in 8 Federal Practice and Procedure, Wright & Miller, §§2049, 2050.)
In any event we doubt that reversible error was committed in this respect. It is conceded that Dr. Real’s opinion was not altered by his examination of the slides and it is difficult to understand how the defendant’s case was substantially prejudiced by the trial court’s ruling.
Finally the defendant argues that the verdict is so excessive as to require either a reversal or a remittitur of the excessive amount— although no specific figure is suggested.
Our rule on remittiturs may be expressed in this way: Where a verdict is so excessive and out of proportion to the damages actually sustained as to shock the conscience of the court, and the verdict has been approved and judgment entered thereon, and where no passion or prejudice has been shown other than the size of the verdict itself, this court may, on appropriate occasions, tentatively affirm the judgment on condition that the plaintiff accept a judgment in a somewhat lesser amount, reserving the right to reverse the judgment in case the plaintiff does not accept the smaller sum. (Dobson v. Baxter Chat Co., 148 Kan. 750, 759, 85 P. 2d 1.) In Slocum v. Kansas Power & Light Co., 190 Kan. 747, 749, 378 P. 2d 51, one of our later cases on the subject, we said this court would not require the plaintiff to accept a remittitur or else grant a new trial unless, under the facts of the particular case, the judgment was so large that it could not in reason be allowed to stand.
In examining the record in this case, we find that Mrs. Barnes, who was 48 years old at the time of trial, returned to the hospital twice after her operation because of the necrotic condition of her hip, spending 20 days the first time and 25 days the second, for a total of 45 days, and that she underwent an operation to her hip on the second visit. The brief filed by plaintiff reflects that she incurred medical and hospital expenses of more than $2040. There is evidence that plaintiff suffered a good deal of pain during her travail; that the wound was extremely painful and offensively odoriferous, exuding odors likened to spoiled meat or dead rats. Mrs. Barnes testified she began having back trouble after the second operation and that the scar on her hip still troubles her when there is a change in the weather. Dr. Lichtor, who specializes in orthopedic surgery, testified that the events relating to plaintiff’s hospitalization for fat necrosis aggravated her preexisting spondylolisthesis, and his prognosis was that she would have recurring back pain and might require surgery.
Under the circumstances we are unable to say the verdict is shocldng to the conscience or wholly beyond reason. Much of the evidence going to damage related to intangibles, to the obnoxious and distressing character of plaintiff’s wound, and to pain and sufferring, past, present and future. These are elements difficult to assess in terms of dollars. This court has said that pain and suffering have no known dimensions, mathematical or financial. (Domann v. Pence, 183 Kan. 135, 141, 325 P. 2d 321; Slade v. City Cabs, Inc., 193 Kan. 105, 109, 392 P. 2d 127; Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 202, 491 P. 2d 891.) While the judgment is generous we cannot brand it unconscionable.
We find no reversible error in this case and the judgment of the court below is affirmed. | [
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Per Curiam:
Article 3, § 2 of the Kansas Constitution, after its amendment of November 7, 1972, still requires the concurrence of not fewer than four justices of this court for a decision. One justice being disqualified and the remaining six being equally divided, the decision of the trial court must stand. See Tramill v. Holland, 210 Kan. 180, 499 P. 2d 1075, and cases cited therein.
The judgment is affirmed.
Fromme, J., not participating. | [
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Per Curiam:
This is an appeal by the state from the judgment of the trial court sustaining defendant’s motion to suppress his self-incriminating testimony given at the preliminary hearing of another. The facts are not in dispute.
Defendant was subpoenaed and called as a witness by the state at the preliminary hearing for Claude F. Thompson, Jr. who was charged with obtaining a warrant-check in the amount of $994.97 from the City of Herington, Kansas, by the devise of a faked writing with intent to defraud said city. At the time defendant testified he was not represented by counsel, not under arrest, and not under investigation or suspicion.
Defendant, without objecting, answered, under oath, all of the questions put to him by the court or counsel. His testimony amounted to a judicial confession that he had participated in the offense charged against Thompson. Defendant was not advised or cautioned by anyone of his right to refuse to answer any question that might tend to incriminate him, and he .did not know of that right.
Based upon his testimony defendant was charged with the same offense as that charged against Thompson, and at his preliminary hearing all of his testimony at the Thompson hearing was admitted in evidence against him. Defendant was bound over to the district court for trial; entered a plea of not guilty and filed a motion to suppress the testimony which he had given at the Thompson hearing contending the admissions were not voluntarily made because he had testified without the assistance of counsel to advise him; and that he had made no knowing and intelligent waiver of his right not to incriminate himself.
The trial court suppressed all o£ defendant’s testimony except that he had received some of the $994.97 paid to Thompson. There was no error in the trial court’s ruling.
The testimony of a witness, taken at a preliminary hearing of another, in which self-incriminating statements were made, is not admissible against him in a subsequent prosecution for a criminal offense where at the time he gave the testimony he was not advised, and did not know, of his right to refuse to answer any question that might tend to incriminate him. (21 Am. Jur. 2d, Criminal Law, Waiver, § 357, p. 384; State v. Harriott, 248 Iowa 25, 79 N. W. 2d 332; and State v. Ceaser, 249 La. 435, 187 So. 2d 432.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
The appellant-defendant, James L. Marsh, was tried to a jury in the district court and was convicted of giving a worthless check of a value of more than $50 in violation of K. S. A. 1971 Supp. 21-3707. The evidence in the case was virtually undisputed. The defendant Marsh issued a check drawn on a St. Louis, Missouri, bank for the sum of $62.02 and gave the check to the Jet Cleaners of Wichita. The check was returned by the Missouri bank marked “insufficient funds.” It appears from the record that the defendant admitted giving the check. His principal defense was that he had informed the person receiving the check that it might not be good and that if it was not he would pick it up. He denied any intent to defraud.
Defendant raises only two points on this appeal. Both involve rulings by the trial court in the reception of evidence. Defendant first complains that the deputy county attorney was guilty of misconduct by an oppressive and confusing cross-examination of the defendant. The cross-examination about which defendant complains is as follows:
“Q. (By Mr. Calvert) I see. So you didn’t tell her it was a hold check, did you? You told her you had money in two banks, isn’t that correct?
"A. I said I had two bank accounts.
“Q. Isn’t that correct, Mr. Marsh?
“A. Let me answer.
“Q. I’m asking you a question that could be answered yes or no. Isn’t that correct?
“A. I would say yes.”
The record fails to disclose that defendant’s counsel made any objection to the form of the questions nor did he make any attempt to clarify the answers on redirect examination. K. S. A. 60-404 requires a specific and timely objection be made to the admission of evidence in order for the question of its admissibility to be considered on appeal. (Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829.) By failing to object here we find the defendant waived any impropriety in the form of the question.
The defendant next complains that the trial court unduly and erroneously restricted defendant’s counsel in his cross-examination of Mrs. Blackwell, the employee of Jet Cleaners who accepted the insufficient funds check. On cross-examination she was asked if she had been offered restitution and she testified that she had but refused to accept it. When asked why she replied,
“Well, I saw no reason in taking it after the suit.
“Q. Even though you’re on Social Security and unemployment?”
The county attorney objected to the question as not relevant. Counsel for defendant argued that it was relevant to show the defendant’s intent. The trial court sustained the state’s objection to the question. The defendant was permitted to show without objection from the state that he had offered to make restitution on the check as evidence of his innocent intent at the time the check was issued. The fact that Mrs. Blackwell may have been on social security or unemployment compensation could hardly have any relevance on the issue of the intent of the defendant at the time the check was issued. We find no prejudicial error or abuse of discretion in die ruling of the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action based on common law negligence and arose out of injuries received by the plaintiffs when an automobile driven by the plaintiff Gary Joe Cooper struck a horse belonging to the defendant on a regularly traveled highway in Sedgwick County, Kansas. The case was tried to the court, sitting without a jury, and resulted in a judgment for the plaintiffs in the sum of $56,035.03. Appeal has been duly perfected.
The issues on appeal challenge the sufficiency of the evidence to sustain the trial court’s findings regarding negligence and contributory negligence; the extent of the plaintiff Gary Joe Cooper’s injuries; and the admission of evidence.
On Thanksgiving Day, November 28, 1968, Gary and Paul Cooper were returning to Wichita after spending Thanksgiving Day in St. John, Kansas, with their grandparents. On the return trip to Wichita, Paul Cooper was asleep and Gary Cooper stated he was driving east on the 21st Street Road at dusk with his headlights on. He came over a “small rise” and saw “some objects silhouetted in the road.” He did not know what they were but didn’t want to hit them. He did not know how far he was from the first object at the time he came over the rise. He did not think he could have stopped in time to avoid striking the first object in the roadway at the time he first saw it. Furthermore, he did not know how fast he was driving at the time.
In order to avoid hitting the first object Gary Cooper swerved to the right so that part of his car was off the roadway. He drove along the shoulder of the roadway for some distance. The ride was bumpy so he accelerated in order to control his car and get it back on the road. At no time while he was driving along the shoulder of the roadway did he apply his brakes or make any effort to do so.
As he was driving along the shoulder of the roadway, Gary Cooper passed the first object on the highway. He then pulled back onto the roadway and observed another object in his path. That object turned out to be the horse with which he collided. He did not know how far die horse was from his car when he first saw it. He testified that he could not have stopped in time to avoid striking the horse after he first saw it. He applied his brakes, or at least made a move to apply his brakes, only at the last second before colliding with the horse.
The accident took place near the home of Merl M. Eberly (defendant-appellant), whose farm is located on the 21st Street Road west of the city of Wichita. Merl Eberly owns 85 acres in the north half of the section in which he resides and leases the balance of the north half of the section. He also leases an irregularly shaped 35-acre tract in tire south half of the section. That 35-acre tract lies generally in the northeast comer of the southwest quarter of the section. The particular tract is referred to throughout the trial as the “south 35-acre tract.” This is the tract where Eberly’s horses were pastured on November 28, 1968, the day of the accident.
Merl Eberly is 58 years of age and was doing business as Merl Eberly Recreation Farms on the day the accident took place. For this recreational business he utilized 70 acres of the land heretofore described. The Eberly’s recreational activities commenced in 1954 and since that time they have gradually increased the number of horses on the premises. At the time of the accident they owned approximately 10 horses. Activities provided in connection with their recreational business included hayrack rides, horseback rides, picnicking, swimming, swimming lessons, day camp operations, and overnight camping. Charges were made for the use of their facilities. The defendant employed a number of persons to assist in his business and, among other things, to act as guides for people on trail rides. The horseback riding, riding lessons, trail rides and hayrack rides were operated throughout the south 35-acre tract.
After the accident it was found that a gate was open in the fence surrounding the south 35-acre tract where the horses had been confined. There was no evidence which would tend to prove how or why the gate happened to be open.
There were three gates located in the south 35-acre tract, numbered 3, 6 and 7. In 1963 gate No. 7 was wired up and closed off during a major repair and rewiring of the fence. Prior to being wired up, gate No. 7 had been secured with a padlock. Gate Nos. 1, 3 and 6 on the Eberly premises were the only gates which led to unfenced fields or pastures, and then to highways in the area. Gate Nos. 1 and 3 were secured with padlocks, but gate No. 6 was secured only with a wire loop. Gate No. 6 was located within a few feet of trails frequently used for horseback riding and hayrack rides. Gate No. 6 is near the center of the section in which the land leased by the defendant is located and it is not adjacent to any roadway. The cultivated land bordering the south 35-acre tract is not fenced. There is no evidence that the horse involved in the collision here in question could have escaped from the south 35-acre tract at any place other than through gate No. 6, which was found lying wide open after the accident. It appeared as if someone had opened the gate wide and left it open. The gate had not fallen down in place as if it had become unlatched.
The defendant had no regular schedule or practice of checking the gates and fences. He testified that he or one of his employees would check when riding through the area with customers to see that the gates were all closed and that the fence was in good shape. Six days before the accident, there were two hayrack riding groups using the defendant’s facilities. One group was made up of 25 people and the other between 30 and 50 people. Five days before the accident there were two separate reservations of six people each for horseback riding at the defendant’s facilities, and later that same day two separate groups of 30 people each for hayrack rides. Thus, a total of between 127 and 147, business customers of the defendant were on the property involved within a few days before the accident. No check was made of the fences and gates on the defendant’s property from the date of the last business activity until the day of the accident. But Mr. Eberly testified he personally checked gate No. 6 when the last hayrack ride went by the gate in the south 35-acre tract on the weekend preceding Thanksgiving Day, and the gate was closed.
At one time the south 35-acre tract was posted with signs in the area of gate No. 6 warning against trespassing and hunting, but there is no evidence that these signs were present on the day of the accident. Testimony indicated the signs previously posted had been shot off. The defendant denied that he had any knowledge of how gate No. 6 could have gotten open, but acknowledged that there was no one at home on the Thanksgiving Day in question to receive any call that their horses were out. The Eberlys had gone to Whitewater, Kansas, for the Thanksgiving Day, and their recreational facilities were not being operated on that particular day. The defendant testified he had no knowledge or evidence that a trespasser or hunter had either been on his property or had left gate No. 6 open.
Over objection the trial court admitted testimony that the defendant’s horses had escaped from his recreational facilities on prior occasions between 1962 or 1963 and up to the time of the accident. The defendant’s son Ray Eberly, testified that the only ttn-m horses got out of the south 35-acre tract in the past was when someone left the gate open.
The defendant testified as to prior trespassers on his property as follows:
“Q. Now, in the years that you have lived in this section and near the Cowsldn Creek, have you had people coming on your property without permission?
“Mr. Grace: I object, Your Honor; do not believe this question calls for and answer which is probative of any issue which is present in this lawsuit.
“The Court: Overruled.
“Q. You can answer, Mr. Eberly. Have you had people that would come on your property without permission?
“A. Yes.
“Q. Has this happened more than once over the years?
“A. Yes.
“Q. Can you describe this situation to the Court?
“A. Well, I’ll describe one or two.
“Q. Just tell the Court; does this happen?
“A. This happens.
“Q. How frequently does it happen?
“Mr. Grace: Excuse me, Your Honor. May the record reflect we have a continuing objection to this entire line of questioning?
“The Court: Yes, sir.
“Q. You can answer. Can you give us any idea of how often this might happen? I know you are going to have to talk in approximate figures.
“A. It is frequent. They come from the Thirteenth Street road up the creek, or the Twenty-first Street road. It seems to be considered as timber land, public property to this extent that people, when they see timber, and we have them in there frequently. I won’t say there is someone through every week or every two weeks, but I see unknown trades in an area that I know we nor our people have been in. I see results of them being there.
“Q. On occasion have unknown persons interfered with your fences in any way?
“Mr. Grace: Your Honor, I’m not sure that this necessarily constitutes the same type of question. We would object to it and a continuing objection to any ‘unknown persons’ and then activities.
“The Court: Very well; your objection is noted. Overruled.
“A. State again the question, please.
“Q. On occasions, have unknown persons interfered with the fencing around your property?
“A. Yes.
“Q. What has happened?
“A. We have had fences cut, wires cut. We have had gates left open.”
The trial court found that as a result of the accident all three plaintiffs1 suffered injuries and damage; that plaintiff Perry Cooper, father of Paul and Gary Cooper, owned the automobile involved in the accident and was damaged in the amount of $1,133.50; drat the plaintiff Pauli Cooper was injured and suffered damage in the amount of $103.68; and that the plaintiff Gary Cooper was injured and had up to the time of trial incurred medical bills in the total amount of $3,741.84; that he suffered a broken neck as a result of the accident and the doctors testimony established drat he would'be restricted in his activities, for the balance of his life and probably would develop an arthritic condition in his neck as a result of the injuries. In the doctors opinion Gary would suffer a 20% permanent general bodily disability. The trial court found Gary had a wage loss of $1,056.00 and awarded damages to¡ Gary in the total sum of $54,797.85.
The trial court found the defendant was guilty of negligence, and that the plaintiff Gary Joe Cooper was not guilty of contributory negligence.
In its conclusions of law the trial court found the defendant was negligent in allowing the horses involved in this case to “run at large” in violation of K. S. A. 47-122 and 47-123. The trial court also concluded:
“That the defendant was not an insurer of the safety of the plaintiff, but that the defendant failed to take any reasonable safety precautions to prevent this accident from occurring.”
The plaintiffs charged the defendant in their petition with a variety of specific acts of negligence. The final pre-trial order set forth ten specific acts of negligence. Among them were: Failure to lock or secure gate No. 6 on defendant’s property; failure to post “no hunting or trespassing” signs or to take any other action to prevent intrusion upon defendant’s property of trespassers; and violating K. S. A. 47-101 et seq. (which, among other things, makes it unlawful for horses to run at large).
The acts of contributory negligence with which the plaintiff was charged by the defendant as set forth in the pre-trial order are: (a) Failing to stop or slow his vehicle in order to avoid a collision; (b) Failing to take proper action to avoid a collision after he knew, or should have known, that a collision was imminent; and (c) Failing to keep a proper lookout.
The pre-trial order also specified an issue of law relating to the legal sufficiency of the allegations of negligence set forth in the plaintiffs’ petition.
The primary thrust of this appeal requires the appellate court to define the duty of care owed by the defendant to the plaintiffs under all of the facts and circumstances presented by the record.
But for the fact that the defendant’s horses got onto the public road here in question there would have been no collision killing a horse and the plaintiffs would not have been damaged. This, however, is not the test of liability in a negligence case.
Negligence, to be actionable, must result in damage to someone, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a man of ordinary intelligence and prudence, and be the probable result of the initial act. (Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605.)
It is well established that before one can be held responsible for his negligent act the actor’s negligence must be the proximate cause of the injury sustained. This leads to the fundamental law in negligence cases which was so aptly stated in the words of Justice Cardozo speaking for the court in the landmark case of Palsgraf v. Long Island R. R. Co. (1928), 248 N. Y. 339, 162 N. E. 99, where it was said:
“. . . ‘Proof of negligence in the air, so to speak, will not do’ . . .
“. . . The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. . . .” (pp. 341, 344.)
The duty arising out of the relation between individuals, which imposes upon one person a legal obligation for the benefit of another, was discussed in some detail, together with the Palsgraf case, in Steele v. Rapp, 183 Kan. 371, 327 P. 2d 1053. There general rules in tort law were discussed by this court with considerable detail. Further discussion herein will proceed upon the assumption that the reader is familiar with the case of Steele v. Rapp, supra.
Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance before an act is said to be negligent, there must exist a duty to the individual complaining, and the observance of which would have averted or avoided the injury. The plaintiff who sues his fellowman sues for a breach of duty owing to himself. The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. (Steele v. Rapp, supra; Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 283, 454 P. 2d 124; and George v. Breising, 206 Kan. 221, 477 P. 2d 983.)
The appellant relies upon George v. Breising, supra; and Hendren v. Ken-Mar Airpark, 191 Kan. 550, 382 P. 2d 288, for the proposition that at all times material herein K. S. A. 21-2436 made it a misdemeanor to open gates and leave them open without the consent of the owner of the land. It is argued that to hold Eberly was negligent for failing either to padlock or fence out gate No. 6 would seem to be tantamount to requiring him to anticipate unlawful acts; and that failure to anticipate the criminal acts of others is not negilgence.
The rule with which we are here concerned is stated in Steele v. Rapp, supra, as follows:
“The rule that the causal connection between the actor’s negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; and Emmerich v. Kansas City Public Service Co., 177 Kan. 443, 280 P. 2d 615.)” (Syl. ¶ 3.)
On the record here presented the intervening cause was the act of a third person in opening gate No. 6 and leaving it open.
Who opened gate No. 6 is a matter of speculation on the record here presented. Why gate No. 6 was open and left open is also a matter of speculation. But what is the risk reasonably to be perceived by one who conducts recreational activities with a number of horses confined in close proximity to a large city where public highways are congested with vehicular traffic adjacent to the premises?
The record clearly established the recreational facilities of Eberly were used annually by thousands of customers and these people came to the recreational farm to do business with him. Most of these customers were young people, such as Boy Scouts, Girl Scouts, horseback riders and so forth. These recreational activities for youngsters have been conducted over a period of more than 10 years. Many in connection with the recreational activities came in close proximity to gate No. 6. The evidence established that Eberly was aware that gates on his premises had been left open in the past and that his horses had escaped. Eberly was also aware of the frequency of trespassers on the premises, particularly in the wooded area such as the south 35-acre tract here in question.
Without question horses unattended on a public highway, whether it be day or night, are a serious hazard to users of the public highway. Under the circumstances here presented a man of ordinary intelligence and prudence is charged with this knowledge.
The rule applicable to this case is stated in § 49, Restatement (Second) of the Law of Torts, as follows:
“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”
Comment b under the above restatement rule states:
“The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.”
As applied to the facts in this case the likelihood that a third person may open gate No. 6 and leave it open, thereby permitting Eberly s horses to escape, makes Eberly’s conduct in failing to padlock gate No. 6 and in failing to post “no hunting or trespassing” signs to prevent the happening of such event negligent. It is immaterial whether the opening of gate No. 6 by a third person was innocent, negligent, intentionally tortious or criminal.
If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it then failure to take such care is negligence. (Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 995.)
Having given the initial tortious conduct — the failure of Eberly to padlock gate No. 6 and his failure to post “no hunting or trespassing” signs in the area of gate No. 6 — it is reasonably foreseeable by a man of ordinary intelligence and prudence, on the factual situation disclosed by the record, that some third person may open gate No. 6 and leave it open thereby permitting the confined horses to escape into the unfenced cultivated area adjacent thereto and find their way to the public highway where motorists would be subjected to the risk of injury and damage caused by accidental collision with the horses.
On the record here presented Eberly owed a duty to the plaintiffs to post his premises with “no hunting or trespassing” signs and to padlock gate No. 6 which might be opened to unfenced adjacent land leading to a highway. Eberly’s failure to comply with such duties, and the happening of the very event the likelihood of which made his conduct negligent, subjects him to liability.
The Supreme Court of California in Richardson v. Ham, 44 C. 2d 772, 285 P. 2d 269, had before it consolidated actions against owners of a bulldozer for personal injuries and property damage resulting when vandals started a bulldozer and the bulldozer ran wild. In the opinion the court said:
“It is contended, however, that even if defendants were under a duty to protect plaintiffs from injuries from operation of the bulldozer caused by ordinary intermeddlers, they were not under a duty to protect plaintiffs from intermeddlers who deliberately undertook to operate the bulldozer, or, in other words, that the intentional misconduct of the young men constituted a superseding cause of plainiffs’ injuries. (See Rest. Torts, § 448.) It is settled, however, that ‘If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’ (Rest. Torts, § 499; McEvoy v. American Pool Corp., 32 Cal. 2d 295, 298-299 [195 P. 2d 783]; Benton v. Sloss, 38 Cal. 2d 399, 405 [240 P. 2d 575].) The possibility of the intentional, wrongful misconduct that occurred in this case was not so remote as not to constitute ‘one of the hazards’ that would justify the conclusion that defendants’ failure to lock the bulldozer was negligent. Accordingly, defendants’ duty to protect plaintiffs from injuries caused by the uncontrolled and unauthorized operation of their bulldozer included a duty to protect plaintiffs from the intentional misconduct of the young men, and such misconduct did not therefore constitute a superseding cause of plaintiffs’ harm.” (p. 777.)
The cases upon which the appellant relies (George v. Breising, supra and Hendren v. Ken-Mar Airpark, supra) which hold that one is not bound to anticipate the criminal act of another are embraced within § 448 of the Restatement (Second) of the Law of Torts, and are thereby distinguishable from cases, such as here, which fall under § 449 of the Restatement (Second) of the Law of Torts.
Furthermore, on the record here presented it cannot be said with any degree of certainty that an intervening criminal act occurred. This would be the situation only in the event that a trespasser eighteen years of age or older opened the gate and left it open. It would be a criminal act only by virtue of K. S. A. 21-2436, repealed, effective July 1, 1970. Patrons of the Eberly recreation farm riding horses on the Sunday preceding the Thanksgiving Day here in question may have opened the gate to go into the open cultivated land to ride their horses, and upon returning may have left the gate open. A trespassing child or children under the age of eighteen years, hunting or picnicking on Thanksgiving Day in the area, may have opened the gate and left it opened. On the record here presented the appellees were not obligated, in their burden of proof, to establish who opened the gate in question and left it open.
The evidence presented by the record is sufficient to sustain the trial court’s conclusion that the appellant failed to take any reasonable safety precautions to prevent the accident in question from occurring.
The record, however, does not support the trial court’s conclusion that Eberly was negligent in allowing the horses involved to “run at large” in violation of 47-122 and 47-123, supra. These horses were not permitted by Eberly to run at large within the meaning of the statute as that term has been defined in Wilson v. Rule, 169 Kan. 296, 219 P. 2d 690 and Abbott v. Howard, 169 Kan. 305, 219 P. 2d 696.
In the foregoing cases “running at large” was defined to mean something more than “merely being unattended.” The ultimate conclusion of the court was that in such cases the plaintiffs have the burden of proving that an animal is loose or unattended because its owner had failed to use due care in enclosing it. Nothing less than proof of such negligence makes out a prima facie case. In short, the statute does not require absolute security and leaves the burden of proof of negligence upon the plaintiff.
In Clark v. Carson, 188 Kan. 261, 362 P. 2d 71, the decisions in Wilson and Abbott were reaffirmed by approving, as a correct statement of the law, an instruction which stated:
“As used in the Statute, ‘running at large’ is the strolling, without restraint or confinement, as wandering, roving and rambling at will without restraint. Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but does not comprehend a case where animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them.” (p. 265.)
(For aimotations on the subject see 34 A. L. R. 2nd 1285 and Later Case Service; see also 59 A. L. R. 2nd 1328, p. 1340.)
In our opinion the intervening act of a third person or persons in opening gate No. 6 and leaving it open was sufficient to insulate the appellant from the statutory charge of suffering or permitting horses to go at large.
The appellant contends the introduction into evidence of prior escapes of his horses was improper in that it permitted the trial court to infer negligence on the date of the accident.
In the appellant’s opening statement to the court he advised the trial court that over a period of 10 to 15 years the horses may have escaped on one or two occasions because of floods and maybe once or twice more because of a tree falling over a fence. Also during the examination of various witnesses, the appellant sought to adduce evidence concerning infrequent prior escapes of horses upon which he hoped to base an argument that he had no duty to prevent later escapes by his horses.
It was the appellee’s contention that such evidence of prior escapes of the horses was introduced for the limited purpose of establishing notice to the appellant of possible danger, thereby establishing a duty on the appellant’s part to take reasonable safety precautions to prevent the future escapes of his horses.
In arguing the point to the trial court as a result of the appellant’s objections the appellee stated,
“. . . [W]e feel that the question of prior conduct of the defendant's animals connected with this recreational facility over a period of time immediately preceding the accident is relevant to establish the circumstances surrounding which the defendant had a duty to control his livestock.
“Defendant has testified in certain matters in his deposition concerning prior escapes of his livestock and concerning his security precautions to prevent such, and 1 intend to show the fact there were horses out on other occasions, there was a duty on the defendant commensurate with that risk, and the defendant failed to discharge that duty. . . .” (Emphasis added.)
It is apparent the appellee offered such evidence for the limited purpose of establishing the duty of the appellant to guard against accidents involving users of the highway as a result of his business operation.
Eberly’s knowledge that his horses had on previous occasions been allowed to escape into areas of traveled highways is a key to the foreseeability of danger from subsequent escapes of his horses, and hence is an important fact in establishing the duty of Eberly to take reasonable precautions to prevent future escapes of his horses. (See, K. S. A. 60-455.)
Actually, the appellant raised this issue in the trial court by his efforts to minimize the frequency of prior escapes by his horses. Under these circumstances error, if any, was invited by the appellant and he cannot be heard to complain on appeal. (Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 78, 476 P. 2d 696; and Hawkins v. Wilson, 174 Kan. 602, 605, 257 P. 2d 1110.)
After carefully reviewing the record we cannot say the conduct of Gary Cooper in driving the vehicle which struck the appellant’s horse constituted contributory negligence as a matter of law. The question of contributory negligence is ordinarily a question to be determined by the trier of the facts:. Here we cannot say the trial court erred in finding Gary Cooper to be free of contributory negligence.
The appellant contends there is no substantial competent evidence to support the trial court’s finding that Gary Cooper will need further surgery.
It is the appellant’s: position on this point that the burden is upon the plaintiff to* prove the nature and extent of his damages and that an award of damages cannot be based upon speculative or conjectural evidence.
Our review of the record indicates the appellant’s contention with regard to the amount of the verdict rendered in favor of Gary Cooper lacks substantial merit. If, in fact, the testimony of Gary Cooper’s attending ortheopedic surgeon had been conjectural, as the appellant now asserts, it was incumbent on him to object to the admission of such evidence at the time of trial, which he failed to do. The testimony of the surgeon was that Gary Cooper probably would need to have additional surgery consisting of a fusion of the cervical spine because of danger from motion of the neck. Evidence discloses that after release from the hospital Gary on two occasions experi enced numbness to- his left side following a fall. On one occasion he went numb for a period of thirty minutes when he bumped his head and on another occasion his left leg became numb for a period of fifteen minutes after a fall. This was explained by the fact that there was some instability at the fracture site or between the two vertebrae involved which could be causing some direct pressure on the spinal cord. This was described as a very dangerous condition for Gary with definite recommendation that he have a cervical spine fusion to stabilize that joint.
The evidence was: sufficient to support the amount of the verdict for Gary Cooper, absent any reference to' probable future surgery.
Evidence disclosing the pain, suffering and disability of Gary Cooper was not controverted by the appellant either during the trial or on this appeal. The evidence of Gary’s suffering included a period of two months in the hospital where he was immobilized by tongs inserted in his head and traction applied to those tongs; he had to be turned back and forth from his stomach to his back at four and one-half hours intervals during his entire hospitalization; he further suffered a loss: of sixty pounds' in weight, an inability to walk after having been dismissed from the hospital, numerous facial cuts including ultimate scaring over his left eye, and a substantial amount of pain associated with the injuries of this magnitude. Insofar as his permanent disability is concerned, he will suffer the permanent loss of 20% of the use of his body for the remainder of his life. His probable life expectancy was stipulated to: be 51.9 years. The evidence was quite clear that he would suffer associated pain throughout the rest of his life from these injuries and the arthritic changes which they will bring to him many years earlier than the average person.
Evidence disclosed that he runs the constant risk of quadriplegia or death from any future injury, and many of his former recreational pastimes and physical activities have had to be curtailed or eliminated entirely.
After having carefully reviewed the record in connection with the points asserted on appeal, we find the appellant has failed to make it affirmatively appear that the trial court committed reversible error.
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The opinion of the court was delivered by
Harman, C.:
This is an interlocutory appeal in a wrongful death action. Issues presented involve validity and construction of a loan receipt agreement entered into by the guardian of the minor heirs of a passenger killed in an automobile-railway train collision and the liability insurance carrier of the driver of the automobile occupied by the decedent at the time of the collision.
The collision occurred February 6, 1970, at about 9:00 a. m. at a county road crossing the mainline track of appellant Santa Fe Railway Company, four miles east of Harper, Kansas. A 1959 Volkswagen driven by Neal LaFrance struck the side of the lead engine of an eastbound train, resulting in minor injuries to the driver and the instant death of his passenger, Richard W. Cullen. There was fog in the general area where the collision occurred. The crossing was an unobstructed rural road type grade crossing, protected by standard reflectorized crossbuck signs and by state highway advance railroad crossing warning signs. LaFrance and Cullen were on their way to work at the time. Each had been taking turns driving his own car in a car pool arrangment. Appellee State Farm Mutual Automobile Insurance Compaany had an automobile liability policy covering LaFrance.
Shortly after the collision David Cullen was appointed guardian of the persons and conservator of the estates of Richard W. Cullen s surviving minor children, who are appellees herein, and he employed James Foster as attorney to prosecute any claims he might have as a result of the collision. Mr. Foster made demand upon State Farm in the amount of eighty per cent of its maximum potential exposure, or $29,600. State Farm advised Santa Fe of this offer of settlement by a letter containing its then assessment of the liability situation and it demanded that Santa Fe contribute an equal amount toward making the proffered settlement. Santa Fe responded to State Farm that it did not consider itself liable for the Cullen death and it declined to contribute to any settlement.
On July 15, 1970, State Farm paid $29,600 to the guardian for the Cullen children pursuant to a written instrument, which states:
“LOAN RECEIPT
“RECEIVED from State Farm Mutual Automobile Insurance Company, the sum of Twenty-nine Thousand Six Hundred and no/100 ($29,600.00) Dollars, and for value received, the undersigned David Cullen, Guardian of the Persons and Conservator of the Estates of Tamila Jo Cullen, Anthony Joseph Cullen, and Terri Lynn Cullen, minors, and James F. Foster, attorney for David Cullen and said minors, promise to pay to State Farm Mutual Automobile Insurance Company said sum of Twenty-nine Thousand Six Hundred and no/100 ($29,600.00) Dollars, together with interest at five percent (5%) per annum from July 1, 1970.
“Said sum shall be repayable by the undersigned only out of any recovery obtained by the undersigned for and on behalf of said minors against the Atchison, Topeka & Santa Fe Railway Company, which Company is deemed by the undersigned to be legally liable for an accident which occurred on or about February 6, 1970, approximately one-fourth (%) mile north and four (4) miles east of Harper, Kansas, and in which accident Richard W. Cullen, father and natural guardian of said minors, was killed resulting in substantial damages to said minors as the heirs of said Richard W. Cullen, deceased. The undersigned agree to prosecute said claim and/or suit on behalf of said minors against said Railway Company with due diligence, and agree to appear at all necessary hearings and trials and to cooperate with counsel for State Farm Mutual Automobile Insurance Company in the handling of any such claim or litigation.
“In further consideration of said loan, the undersigned, individually, and for and on behalf of said minors, hereby agree not to bring or prosecute or allow to be brought or prosecuted in our names, nor for or on behalf of said minors, any claims or suits against Neal LaFrance or State Farm Mutual Automobile Insurance Company, for any damages sustained or claimed as a result of said accident and the death of said Richard W. Cullen, but it is expressly agreed and understood that the undersigned reserve the right to bring suit or claims against the Atchison, Topeka & Santa Fe Railway Company for such damages as aforesaid.
“In further consideration of said loan, the undersigned do hereby agree to indemnify and hold harmless the said Neal LaFrance and State Farm Mutual Automobile Insurance Company, against and from all further loss, expense, liability, claims or damage, of whatsoever kind or character, including any and all costs, expenses and reasonable attorney fees, which may be incurred or suffered by reason of any claims, demands, actions or lawsuits which may be filed or claimed to exist by the undersigned, or which may arise out of or result of any claim for damages for the death of said Richard W. Cullen filed against said Railway Company by the undersigned.
“As security for repayment of said loan, the undersigned hereby agrees to hold said loan proceeds in trust and upon trust, as co-trustees, by deposit or investment in accounts or securities approved by the Probate Court of Sedgwick County, Kansas, and to use said loan proceeds only as necessary for the actual support and maintenance of said minors pursuant to direction and order of the Probate Court of Sedgwick County, Kansas; and such trust shall terminate upon the conclusion of the claim or suit to be prosecuted against said Railway Company by final judgment, or by settlement, subject to approval of the attorney for the State Farm Mutual Automobile Insurance Company, or as may otherwise be agreed upon by the undersigned and said attorneys.
“Dated this 11th day of July, 1970.
“/s/ David L. Cullen
(David Cullen)
“/s/ James F. Foster
(James F. Foster)”
This document was prepared by counsel for State Farm and for the guardian and prior to acceptance thereof was approved by the probate court of Sedgwick county, Kansas, without notice to Santa Fe and without evidence other than the verified application for approval.
August 7, 1970, the guardian commenced this action against Santa Fe for the wrongful death of Richard W. Cullen. In his petition the guardian alleged the day was an exceptionally foggy one; that the train was speeding at the time of the collision and its whistle was not sounded prior to reaching the crossing as required by law; that expenses for Cullens funeral amounted to $1,926.61, and he asked for judgment against Santa Fe for $36,926.61.
Santa Fe filed its motion to dismiss on the grounds, among others, that the action had not been brought by the real party in interest; the plaintiff lacked capacity to sue; the suit was filed by the guardian solely in compliance with a contractual obligation incurred as a result of the loan receipt agreement and said suit therefore violated public policy; and the guardian had been fully compensated for the damages resulting from the collision and had released any claim against Santa Fe by entering into the loan receipt agreement.
In the alternative Santa Fe moved for an order reducing the amount of any judgment obtained against it by $29,600, the sum received by the guardian in his settlement with State Farm.
The trial court denied Santa Fe’s motion. Thereafter upon Santa Fe’s application State Farm was made an involuntary plaintiff in the action upon the ground it was a contingently necessary party under K. S. A. 1972 Supp. 60-219 (a), and at the same time the trial court entertained a motion for rehearing by Santa Fe of its motion to dismiss. State Farm then filed its entry of appearance in the action and moved for summary judgment. Thereafter the parties entered into a stipulation of facts for the purpose of hearing and determining all motions, which facts are in accord with those herein recited. It was stipulated the guardian contends Santa Fe did not blow its whistle at least eighty rods from the intersection as provided by K. S. A. 66-2,120 and that his evidence on this consists of the statement of Neal LaFrance to the effect LaFrance did not hear the whistle until just before impact. Santa Fe’s evidence that its whistle was blown pursuant to statute consists of the statements of the locomotive engineer, head brakeman and signal maintainer. Also, it appears that at the time of the collision the decedent was thirty-four years of age, during the preceding year he had earned nearly $13,000 and he had custody of his three children, who ranged in age from six to ten years, and from whose mother he was divorced.
The trial court adhered to its previous order denying Santa Fe’s motion to dismiss and its motion for pro tanto credit and the court sustained State Farm’s motion for summary dismissal from the action. In making its rulings the trial court entered the following findings and conclusions:
“1. That there was no concert of action, common design, joint enterprise or other relationship which could make the defendant and Neal LaFrance joint tort-feasors, and that the allegations against defendant charge it with being an independent concurring or successive tort-feasor.
“2. That the instrument executed by and between plaintiffs and involuntary party plaintiff, marked Exhibit ‘A’, is a loan receipt and does not constitute a release, that it does not allow the plaintiffs to recover twice for the same wrong or injury, but rather allows them to proceed against defendant herein and that defendant is therefore not entitled to a pro tanto reduction herein.
“3. That the plaintiffs are the real party in interest and they have not assigned their cause of action to State Farm Mutual Automobile Insurance Company.
“4. That the loan receipt, Exhibit ‘A’, after approval by the Probate Court of Sedgwick County, Kansas, was properly executed by David Cullen, the guardian conservator of the minors in the best interests of their estate and that the terms thereof provide a just, fair and equitable method permitting plaintiffs to resolve their dispute with State Farm Mutual Automobile Insurance Company and preserve their rights to proceed against defendant herein, and said instrument is not against public policy.
“5. That the defendant, The Atchison, Topeka & Santa Fe Railway Company, had an opportunity to contribute to a full and complete settlement by and between all parties, but refused to do so and by refusing to contribute or participate, it cannot now claim credit for the sum paid by State Farm Mutual Automobile Insurance Company to the Cullen children under the terms of the loan receipt, and it is now estopped to attack or claim the benefit of the terms thereof.”
The trial court further made the requisite order preliminary to interlocutory appeal by Santa Fe under K. S. A. 60-2102(h), which appeal this court later authorized pursuant to Rule No. 5.
Santa Fe asserts error in the denial of its motion to dismiss or in the alternative its request for pro tanto credit upon any judgment obtained against it for the amount of the settlement paid the guardian by State Farm. It also urges State Farm is a contingently necessary party to the action.
Appellant Santa Fe directs many thrusts against the loan receipt, although of varying force, and we will consider that instrument in the light of those attacks along with appellees’ parries.
Appellant argues that the children through their guardian have assigned their cause of action to State Farm and they are therefore not the real parties in interest under K. S. A. 1972 Supp. 60-217 (a) which provides that every action shall be prosecuted in the name of the real party in interest. The argument lacks merit. The guardian’s suit was for the sum of $36,926.61 — the loan receipt evidenced payment of only $29,600. In Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, 403 P. 2d 185, 13 A L R 3d 133, we dealth with a somewhat analogous situation in determining who was the proper party plaintiff to bxing an action against an alleged tortfeasor for damage to insured property where the insurer had paid part of the loss. Ellsaesser differs in its factual setting from that at bar in that there the insxxrer had subrogation rights by reason of its payment to its insxired which would not be the case as to a paymexxt made to a straxxger by reasoxi of liability coverage. Nonetheless, we think the difference is not significant. The deciding factor is whether the amount received, whether denominated loan or payment, is full satisfaction or only partial satisfaction of the loss. The amount received by the guardian was less than the maximum obtainable in a wrongful death action (K. S. A. 60-1901, et seq., as amended) and must be considered as partial satisfaction, only, thus permitting him to bring this suit.
Allied with the foregoing is appellant’s assertion the loan receipt agreement violated public policy in that it smacks of champerty and maintenance and constitutes an assignment of a tort claim which is prohibited. We might well decline to consider the champerty and maintenance issue because it was not raised nor presented to the trial court; however, we see nothing in the agreement complained of x-endering it subject to that doctrine nor did it constitute an illegal assignment of a tort claim inasmuch as State Farm did have at least a possible interest in any wrongful death action brought by the guardian (see 14 Am. Jur. 2d, Champerty and Maintenance, §§ 2, 3, 9; 14 C. J. S., Champerty and Maintenance, §§ 1-3).
Appellant fxxrther contends the loan agreement cannot be given its full effect in that appellant and LaFrance were active joint tortfeasors and to enforce the agreement according to its terms would thwart the law in this state against contribution betweexi joint tortfeasors and the law prohibiting indemnity between active tortfeasors whose wrongs were of the same quality or character.
The trial court in paragraph 1 of its memorandum opinion stated there was no concert of action, common design or other relationship which could make appellant and LaFrance joint tortfeasors and that the allegations in the guardian’s petition against appellant charge it with being an independent concurring or successive tortfeasor. Under our decisions the trial court erred in its conclusion. Neither concerted action nor common design is essential to a determination that two or more wrongdoers are joint tortfeasors. In Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614, this court held:
“Substantially concurrent negligent acts of two or more persons render all liable as joint tortfeasors where the act or acts of each contribute to the injury. In such circumstances the degree of culpability of each is immaterial and each is liable for the entire damage.” (Syl. ¶ 2.)
(To the same effect see also Rork v. Beatty, 169 Kan. 320, 219 P. 2d 355; Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67; Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P. 2d 1013.)
In the case at bar both appellant and LaFrance are alleged to have been negligent in causing the Cullen death, LaFrance with respect to the handling of his vehicle and appellant in the operation of its train, which acts occurred substantially concurrently. Hence, at this stage of the lawsuit, they must be regarded as joint tortfeasors and the trial court erred in ruling otherwise. Kansas has always adhered to the rule that there is no contribution between joint tortfeasors (Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007). Where the question of contribution between tortfeasors is involved courts will look to the substance of the transaction, not its form (18 Am. Jur. 2d, Contribution, § 33). Contribution may be said to be involved here by reason of the loan receipt and to that extent the rule prohibiting it would be frustrated and, accordingly, the agreement must be held ineffective to confer upon appellee State Farm a right to contribution from appellant.
In considering the issue of indemnity the difference between that term and contribution must be kept in mind. Although the two terms have on occasion been used interchangeably, contribution means a sharing of the loss, while the term indemnity as used in connection with the law relating to tortfeasors means a shifting of the entire loss (see Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783). As a practical matter that which is sought to be accomplished by appellee State Farm may more appropriately be said to be indemnity in that it seeks to recover from appellant by means of the loan receipt the full amount paid by it to the guardian. Indemnity is allowable in those situations where the party seeking it is liable for another’s injuries and damages by virtue of passive, implied or constructive negligence as distinguished from active, primary or direct negligence. Indemnity is not allowed between tortfeasors when they are in pari delicto (Huxol v. Nickell, 206 Kan. 102, 476 P. 2d 606; Russell v. Community Hospital Association, Inc., supra). Both appellant and LaFrance stand charged with active negligence of the same character directly causing the death in question, in which instance State Farm, standing in LaFrance’s shoes, is not entitled to indemnity against appellant and the loan receipt is likewise ineffective to confer any such right upon it.
The foregoing conclusions do not wholly dispose of the issues raised upon this appeal and the further contentions of the parties must be considered.
Appellant asserts the loan receipt actually constituted satisfaction in full of the guardian’s claim arising out of the death and hence released appellant from liability, citing familiar law that an injured person can have but one satisfaction for the same wrong and the release of one joint tortfeasor releases all joint tortfeasors (see Jacobsen v. Woerner, 149 Kan. 598, 89 P. 2d 24). Appellant concedes the agreement between State Farm and the guardian reveals an intent to sue it but it emphasizes the fact that the agreement vests in State Farm a large measure of control over that suit. Appellant’s argument largely rehashes those contentions respecting real party in interest, assignment of tort claim, violation of public policy, etc., which have already been disposed of. The issue further raised boils down to whether the loan receipt amounts to a release or to a covenant not to sue.
We briefly summarize the contents of that document. The first paragraph acknowledges receipt by the guardian of $29,600 from State Farm and promises to repay it at a specified rate of interest. The second paragraph specifies the method of repayment — only from recovery from Santa Fe because of its part in the death in question —and it contains the guardian’s promise to prosecute that claim. The third paragraph contains the guardian’s promise not to sue LeFrance or State Farm because of the Cullen death but it expressly reserves that right as against Santa Fe. The next paragraph apparently is meant to exonerate LaFrance and State Farm from payment of any costs or expenses incurred by the guardian as a result of pursuing Santa Fe. The last paragraph simply provides that as security for repayment to State Farm of the loan, the loan proceeds will be held in trust, subject to certain conditions, until termination of prosecution of the claim against Santa Fe.
In Sade v. Hemstrom, 205 Kan. 514, 471 P. 2d 340, we stated the applicable rule of construction:
“Whether an instrument entitled 'Compromise and Settlement Agreement’ is to be construed as a release or a covenant not to sue is determined by the terms of the instrument, the words used, the amount shown as paid and accepted, the substance of the agreement and the intention of the parties as manifested by the instrument.” (Syl. f 5.)
Here the loan receipt plainly reveals the amount received was not intended by either party to be full satisfaction of the loss sustained. It does contain a promise not to sue LaFrance or his carrier but it specifically reserves, indeed it mandates, prosecution of a wrongful death claim against Santa Fe. We have no hesitation in concluding that the loan receipt does not constitute a release so as to absolve appellant and the trial court properly denied its motion for dismissal upon that ground.
The instrument does contain a definite covenant not to sue. That much of it is proper and lawful in this jurisdiction. The policy of our law where efforts have been made to thwart the rules respecting either contribution or indemnity has been to leave the parties where it finds them. Here the guardian is holding the $29,600 by reason of a valid covenant not to sue. We know of no reason why the loan receipt is not sustainable and enforceable as such as to all the parties to this action, including both appellees. A covenant not to sue one joint tortfeasor does not release other joint tortfeasors; however, anything received by way of a covenant not to sue operates as a payment pro tanto upon any judgment obtained against the others (Jacobsen v. Woerner, supra). Accordingly, the trial court erred in denying appellant’s alternative motion for pro tanto credit.
Appellee State Farm cites many cases from other jurisdictions in which the use of loan receipts has been fully upheld but for a number of reasons they supply no precedent here. We will attempt no case by case analysis but generally they present different factual postures from that at bar or turn on rules respecting contribution and indemnity different from our own. Most often they involve situations where an insurance carrier having subrogation rights is seeking complete recoupment of a loss paid by it and the loan receipt permits such recovery without the necessity of suit by the carrier in its own name and at the same time the injured person is, without undue delay, put in funds satisfying his loss. The issue most often raised is whether the loan receipt evidences a true loan or payment. A case which at the time of its decision was a veritable law review treatise on principles governing loan receipts is Bolton v. Ziegler, 111 F. Supp. 516 (N.D. Ia., 1953). (For discussion of later cases, see anno. 13 ALR 3d 42). We have no quarrel with the decisions cited by appellees nor with the efficacy of a loan receipt in an appropriate case but as has been stated in discussing the device of a loan receipt used in an attempt to thwart a particular rule against indemnity: “. . . the use of a legal device, proper in its setting, should not be extended to a situation foreign to its nature for the purpose of thwarting tire decisions of the courts.” (95 U. of Pa. L. Rev. 234.)
In reaching the conclusion we have we do not overlook Hoffine v. Standard Accident Ins. Co., 191 Kan. 63, 379 P. 2d 246. There, as pointed out by counsel for appellee State Farm, resort to the abstract reveals that a loan agreement figured in the transaction. However, the issues crucial to the case at bar were never presented to or decided by this court and Hoffine provides no precedent.
In its finding No. 5 the trial court found that by refusing to contribute to a full and complete settlement appellant was estopped to attack or to claim any benefit from the terms of the loan receipt. We are cited to no principle of law supporting this conclusion and we know of none. Appellant has consistently disclaimed liability for tire unfortunate incident. It has never done, said or concealed anything causing anyone to change position to his detriment, much less has it been guilty of misrepresentation or any other unfair conduct. The trial court erred in this conclusion (see Place v. Place, 207 Kan. 734, Syl. ¶4, 486 P. 2d 1354).
Finally, appellant urges the trial court erred in dismissing State Farm as an involuntary plaintiff in the action. It argues State Farm is a “contingently necessary” person as defined in K. S. A. 1972 Supp. 60-219(c), recently amended to bring our rule on compulsory joinder of persons in conformity with Federal Rule 19. In view of the conclusion herein reached respecting the status of the document in question, State Farm as the convenantee in a covenant not to sue manifestly does not fall within the ambit of 60-219(a) which provides:
“A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
The action can be fairly managed with all interests protected without the presence of State Farm as an involuntary plaintiff.
That part of the judgment denying appellant’s motion to dismiss is affirmed; that part denying appellant’s alternative motion for credit pro tanto is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.
APPROVED BY THE COURT. | [
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Per Curiam:
This is an appeal by the state director of revenue from the trial court’s decision which overturned a board of tax appeals’ ruling favorable to the director. During the period in question the Kansas retailers’ sales tax act (K. S. A. 79-3601, et seq.) imposed a tax of 3% on the selling price of certain commodities, “selling price” being defined as the total cost to the consumer exclusive of certain items including federal retailer’s excise tax and any specific excise tax imposed by the state of Kansas (K. S. A. 79-3602[g], since amended).
The parties stipulated that appellee Safeway collected from its retail customers 3% sales tax on the selling price of cigarettes and beer which included the excise tax; that, including the excise tax, 27% of the sales of cigarettes and 85% of the sales of cereal malt beverages did not result in putting the total sales to the retail customers into a higher sales tax bracket as promulgated by the department of revenue.
K. S. A. 79-3604 provides that the retailer shall collect the full amount of the tax imposed by the act or an amount equal as nearly as possible or practicable to the average equivalent thereof, which statute fathered the tax bracket system.
During the audit period 1964 to 1968, appellee reported each month, on forms furnished it by appellant, all its gross receipts, including the appropriate Kansas excise taxes on cereal malt beverages and cigarettes sold, and exempt sales made from its various stores located in the state of Kansas. In determining its sales tax liability appellee deducted the Kansas excise taxes and exempt sales from its gross receipts, as provided on the form. The amounts of gross receipts, the amounts of Kansas excise taxes on cereal malt beverages and cigarettes and the amounts of exempt sales so reported are not in dispute and the amounts reported were properly and timely paid by appellee.
In 1970, by amendment of K. S. A. 79-3602 (g), the legislature deleted the deduction of the excise tax, which is essentially what appellant contends should be done during the audit period in issue here.
When the legislature amends provisions of a statute, it is presumed the legislature intended to change the law from that which it was prior to the amendment (Curless v. Board of County Commissioners, 197 Kan. 580, 587, 419 P. 2d 876), and such amendment may be considered in construing the act prior to amendment. Hence we must conclude appellee’s action was correct. The forms furnished by the state for computing sales tax liability properly provided spaces showing gross sales and proper deductions therefrom including excise taxes. Appellee, having properly complied with the then applicable statutes, as reflected and sanctioned on the forms of appellant and having paid the taxes thereon, owes no further amount. Any excess collected over and above the brackets is minimal and unascertainable.
Judgment affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
The plaintiff Liberal-NEA is a professional organization of teachers established for the purpose of engaging in collec tive bargaining with the defendant, Roard of Education of Unified School District No. 480, Seward County, Kansas. The plaintiff brought this action to obtain an order of mandamus requiring the defendant board to enter into professional negotiations with the plaintiff and for further relief by way of declaratory judgment construing the collective negotiations statute, K. S. A. 1970 Supp. 72-5413 et seq. After a full evidentiary hearing the district court denied plaintiff’s request for preliminary and permanent orders of mandamus and further denied declaratory and injunctive relief on the grounds of lack of jurisdiction in the district court.
The trial court made extensive findings of fact based upon evidence which was virtually undisputed. The factual circumstances as disclosed by the evidence and as found by the trial court are essentially as follows: The 1970 Kansas legislature enacted what is now K. S. A. 72-5413 through 72-5425 (volume 5A 1972). Highly summarized this collective negotiations act authorizes professional employees of boards of education as defined therein to “form, join or assist professional employees’ organizations, to participate in professional negotiation with boards of education through representatives of their own choosing for the purpose of establishing, maintaining, protecting or improving terms and conditions of professional service.” The act provides a method for petitioning for recognition, holding elections, determining appropriate representative units, consummating binding collective bargaining agreements which may contain procedures for final and binding arbitration of disputes. With regard to strikes the act states; “Nothing in this act shall be construed to authorize a strike by professional employees.”
The teachers in the Liberal, Kansas, school system who were employed by the defendant school district decided to avail themselves of this newly enacted statute. Pursuant to 72-5416 the plaintiff Liberal-NEA filed a request with the defendant board of education asking the board to recognize it as the exclusive representative under 72-5415. Following compliance with statutory procedures, on October 5, 1970, the board of education by resolution recognized the plaintiff as the exclusive representative of its professional employees other than the administrative employees for the purpose of professional negotiations. This recognition was made without any limitations as to time. Pursuant to such recognition the representatives of plaintiff and the defendant board joined in negotiations during the school year 1970-71. During the 1970-71 school year the defendant board disseminated a written book on school policies for the school year 1971-72. In this book the plaintiff Liheral-NEA was recognized as representing the teachers in the Liberal schools under the professional negotiations act. The written policies of the school district are referred to in the individual teachers contracts of the professional employees of the district. The enrollment by various teachers in the plaintiff association and salary deductions for dues were handled by the office of the superintendent of schools, J. L. Smalling. It is obvious from the record that antagonisms and disagreements arose between the officers of the plaintiff and the superintendent of schools. On November 18, 1971, Mr. Smalling as superintendent wrote the Kansas State Department of Education in Topeka a letter requesting a legal opinion as to the obligation of the Liberal board of education to negotiate with plaintiff for the 1971-72 school year. A delayed response to this request for information was made by a letter from David W. Kester, departmental attorney for the Kansas State Department of Education, which letter was dated December 1st, 1971. Mr. Kester’s letter opinion will be discussed hereafter. It is clear from the record that after the plaintiff was recognized by the board on October 5, 1970, there were no applications for recognition as exclusive bargaining representative under the collective negotiations law made by the plaintiff or any other persons or organizations. The officials of Liberal-NEA obviously assumed that they would continue to act as the exclusive bargaining agent for the Liberal teachers during the school year 1971-72. In the latter part of November 1971 both the plaintiff and the defendant superintendent, J. L. Smalling, began figuring the membership of the Liberal-NEA to determine whether or not it represented a majority of the professional employees. The plaintiff association sent a questionnaire to all the members of the professional employees’ unit requesting that they return such questionnaire indicating their likes or desires to be represented by Liberal-NEA for the purpose of professional negotiations. Mr. Smalling as superintendent also sent out a letter to all of the teachers advising them that Liberal-NEA did not have a majority of the district teachers as members and requested each teacher to indicate whom the teacher desired to have negotiate on his or her behalf with the board of education. The trial court made a specific finding of fact that there are 233JI professional employees in the unit and that according to superintendent Smalling’s calculation the plaintiff had been selected for purposes of professional negotiations by 106 members plus 22 nonmembers or a total of 128 employees or according to plaintiff’s figures 110 members plus 22 nonmembers or a total of 132 employees. Assuming either plaintiff’s or defendant’s figures, plaintiff represented a majority of the teachers. At all times the membership lists were readily available either in the office of the superintendent or in the NEA state office in Topeka. At the time of the trial the membership list of the plaintiff association showed that on March 9, 1972, the plaintiff had 115 members which added to the 22 nonmember NEA members who had designated Liberal-NEA as their bargaining agent made a total of 137 professional employees who had designated plaintiff as their bargaining agent.
On November 30, 1971, pursuant to 72-5423 the plaintiff delivered to the defendant board of education a letter with a list of items upon which it desired to negotiate on behalf of the professional employees for the school year 1971-72. On the same date the superintendent of the defendant board delivered to the plaintiff a written notice of the items upon which the defendant board of education desired to negotiate with plaintiff for the school year 1971-72. The trial court found that after October 5, 1970, no notice was posted by the board on the bulletin board of any school facility nor was any written notice or demand made upon the plaintiff association that the board of education had. a good faith doubt that plaintiff represented a majority of the professional employees of the unit.
The event which precipitated this controversy occurred on or about December 1, 1971, when Mr. Smalling received as superintendent the letter opinion of David W. Kester, departmental attorney for the Kansas State Department of Education. This letter expressed Mr. Kester’s professional opinion that the board of education was not required to recognize the Liberal-NEA as a negotiating unit or any other group that does not have a majority of its teachers as members and further that a professional organization must obtain recognition each year if it desires to negotiate. Prior to December 6, 1971, neither superintendent Smalling nor tibe board of education had questioned the exclusive representation of the teachers by the plaintiff or requested verification of membership or its majority representation. On December 6, 1971, there was no application pending either by the plaintiff or a competing organization requesting recognition as exclusive representative of the professional employees. Likewise, no application was pending on behalf of any professional employees requesting withdrawal or termination of the recognition of the plaintiff association. Furthermore, the defendant board never requested the plaintiff to furnish it with evidence that it represented a majority of the professional employees.
A regular meeting of the defendant board was held on December 6, 1971. At that meeting superintendent Smalling suggested that plaintiff might not represent a majority of the professional employees in the unit and that the plaintiff had not made a new application for recognition as exclusive representative for the coming year. Thereupon the defendant board by resolution took action not to recognize any group for professional negotiations during the school year 1971-72, “because no group met the state legal requirements.” At the same meeting the board asked the superintendent to submit recommendations for informal negotiations at the next regular meeting. It should be noted that this action of the board of education terminating negotiations and withdrawing recognition of the plaintiff was taken notwithstanding the official recognition of plaintiff by the board on October 5, 1970, the recognition of plaintiff in the school policy book for 1971-72 and the exchange of the written notices of items to be negotiated made on November 30, 1971.
On December 9, 1971, the plaintiff sent a written request to the defendant, requesting that plaintiff and defendant proceed to negotiate pursuant to the notices exchanged on November 30, 1971, and suggesting a date and place for the start of such negotiations. On or about December 15, 1971, the defendant board gave written notice to the plaintiff that it would not enter into negotiations with the plaintiff. Thereafter superintendent Smalling endeavored to organize an “informal” negotiation team to negotiate with the board as the representative of the teachers’ bargaining unit. The board met again on January 10, 1972, at which time Mrs. Oleta A. Peters, president of the plaintiff association, requested the board to reconsider its action of December 6, 1971. The board refused to change its action of December 6 in which it voted not to recognize any group for professional negotiations. The board then agreed to implement the superintendent’s recommendation for a committee o£ teachers and administrators to prepare a list of objectives for the board’s consideration concerning teacher’s welfare, salaries and fringe benefits. No actual negotiations have occurred between the board and such a committee.
On January 28, 1972, the plaintiff filed this lawsuit in the district court of Seward County. At its meeting on February 2, 1972, the board received a petition signed by 25 persons including two administrators and the wife of the superintendent and the wife of the school principal. This petition criticized the plaintiff organization because of its objectives and tactics and expressed concern as to the rift developing between the faculty and the board. Another petition filed by six faculty members deplored the filing of the lawsuit against the school board and the disturbance it was causing in the teacher ranks. It should be noted that the names on these petitions amounted to less than 20% of the members of the negotiating unit.
As indicated heretofore the trial court made findings of fact which were substantially the facts set forth above. The trial court also made conclusions of law finding in substance that the board of education had a good faith doubt as to whether or not the plaintiff represented a majority of the teachers and further that the district court could not assume jurisdiction in the case because the plaintiff had failed to exhaust the administrative remedy in K. S. A. 72-5417 providing for an appeal to the State Board of Education. The trial court thereupon entered judgment in favor of the defendant. The plaintiff has brought a timely appeal to this court.
Before taking up the specific issues that are raised on this appeal we should recognize that the unionization of public employees is a recent development in Kansas. The Labor Management Relations Act of 1947 ( 29 U. S. C. A. § 152 [2]) specifically excluded from the ambit of its application employees of states and their political subdivisions. The Kansas statutes pertaining to collective bargaining have a history covering many years. In 1943 a comprehensive act governing collective bargaining was enacted. (K. S. A. 44-802 through 44-815.) In 1955 die state labor commissioner was authorized to adopt rules and regulations governing the conduct and canvassing of elections for the selection of collective bargaining units. (K. S. A. 44-816.) The current rules and regulations may now be found in K. A. R. 49-6-1 through 49-6-6. In Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 397 P. 2d 357 (1964), this court held that the Kansas statutes pertaining to collective bargaining applied only to private industry and would not be applied to school districts and other political subdivisions of the state until such time as the legislature shows a definite intent to include such political subdivisions. In that case the employees of the board of education of the city of Wichita were denied the right to compel the state labor commissioner to conduct an election to determine a collective bargaining unit for the board of education employees. In 1970 the Kansas legislature enacted K. S. A. 72-5413 through 72-5425 which extended the right to bargain collectively to professional and administrative employees of school boards. A bill which would have given the right to public employees other than teachers passed the house but faltered in the senate. In 1971 the right to bargain collectively was extended to public employees with specified exceptions by the public employers — employees relations act, K. S. A. 1972 Supp. 75-4321 through 75-4335.
K. S. A. 72-5414 clearly and unequivocally gave to professional employees of school boards the right to form, join or assist professional employee organizations and to participate in professional negotiations with boards of education through representatives of their own choice for the purpose of establishing, maintaining, protecting and improving terms and conditions of professional services. Professional employees were also given the right to refrain from any or all of the foregoing activities. With this legislative history and the obvious purpose of the statute in mind we now turn to the issues presented on this appeal.
A decision here requires us to construe for the first time certain sections of the collective negotiations statute. Under the statutory scheme the first step in providing collective bargaining for the teachers requires the creation of an exclusive statutory representative to represent the professional employees in negotiating with the school board. Such an exclusive representative or bargaining agent is provided for in K. S. A. 72-5415. In substance this section provides that the representative designated or selected for the purpose of professional negotiations by the majority of the professional employees shall be the exclusive representative of all professional employees in the negotiating unit, except administrative employees.
K. S. A. 72-5416 provides a statutory procedure for the recognition of an exclusive representative by a local board of education. This statute provides as follows:
“72-5416. Recognition of employees’ organization as representative; exceptions to required recognition. Any professional employees’ organization may file a request with a board of education alleging that a majority of the professional employees in an appropriate negotiating unit wish to be represented for the purposes of professional negotiation by such organization and asking such board of education to recognize it as the exclusive representative under section 3 [72-5415] of this act. Such request shall describe the grouping of jobs or positions which constitute the unit claimed to be appropriate and shall include a demonstration of majority support through verified membership lists. Notice of such request shall immediately be posted by the board of education on a bulletin board at each school or other facility in which members of the unit claimed to be appropriate are employed. Such request for recognition shall be granted by the board of education unless:
“(a) The board of education has a good faith doubt as te» the accuracy or validity of the evidence demonstrating majority support; or
“(h) another professional employees’ organization files with the board of education a competing claim of majority support within ten (10) calendar days after the posting of notice of the original request and submits as evidence of its claim of majority support verified membership lists demonstrating support of at least thirty percent (30%) of the professional employees in the appropriate negotiating unit; or
“(c) there is currently in effect a lawful written agreement negotiated by the board of education and a professional employees’ organization, unless the expiration date of such agreement is less than sixty (60) days after the filing of the request for recognition; or
“(d) the board of education has, within the previous thirty-six (36) months, lawfully recognized a professional employees’ organization other than the petitioner as the exclusive representative of any professional employees included in the unit described in the petition.”
It should be noted that the initial step in obtaining recognition is for an employee organization to file a request with the local board of education asking that it be recognized as the exclusive representative under the act. The request is required to include a statement as to the appropriate negotiating unit and a demonstration of majority support through verified membership lists. A notice of the request must be posted on a bulletin board at each school. Normally a request for recognition should be granted by the board of education unless certain conditions exist which are set forth in K. S. A. 72-5416 (a), (b), (c) and (d).
K. S. A. 72-5423 makes it a statutory duty for a board of education to enter into professional negotiations when an organization has been recognized as the exclusive representative. K. S. A. 72-5423 provides as follows:
“72-5423. Reservation of rights and duties of boards of education; duty to recognize and negotiate; strikes not authorized; adoption of contracts by reference.
“(a) Nothing in sections 1 [72-5413] to 12 [72-5424], inclusive, of this act shall be construed to change or affect any right or duty conferred or imposed by law upon any board of education, except that boards of education are required to comply with this act in recognizing professional employees’ organizations, and when such an organization is recognized, the board of education and the professional employees’ organization shall enter into professional negotiations prior to issuance of the annual teachers’ contracts or renewal of the same on request of either party: Provided, That notices to negotiate on new items or to amend an existing contract must be filed on or before December 1 in any school year by either party, such notices to be in writing and delivered to the superintendent of schools or to the representative of the bargaining unit and containing in reasonable and understandable detail the purpose of the new or amended items desired.
“(b) Nothing in this act shall be construed to authorize a strike by professional employees.
“(c) Any agreement lawfully made under the provisions of this act may be adopted by reference and made a part of the employment contract between any professional employee of the applicable negotiating unit and a board of education for a period of not to exceed two years.”
There is nothing in the collective negotiations act which establishes any fixed statutory period for the duration of the status of exclusive representative; nor is there any provision as to when or under what circumstances such status should terminate. The act is also silent as to whether an exclusive representative, once having received recognition, is required to obtain recognition from a school board each year or at any other fixed interval. The absence of any specific statutory provision covering these matters has brought about the present litigation.
The issue which we must first determine is basically this: Under the collective negotiations act, K. S. A. 72-5413 through 72-5425, did the plaintiff as the recognized exclusive representative of the teachers lose its status as such by failing to file a new request for recognition for the school year 1971-72. To answer this question we must first determine the duration of a recognition of a professional organization as an exclusive bargaining representative and how such status is terminated. The school board contends that a reading of the act in its entirety requires an exclusive representative to petition annually for recognition and that if it fails to do so it loses its status and the board is not required to negotiate with it any further. The plaintiff teacher’s organization contends in substance that the status of an exclusive representative, once established through the statutory procedure, continues until the board has presented to it an application of a competing employees’ organization for recognition or an application by employees in the negotiating unit to terminate such recognition and status. From a careful analysis of the collective negotiations act when considered along with the general law which governs labor relations, we have concluded that the status of a teacher’s organization as the exclusive bargaining representative continues in the absence of the recognition of a new exclusive representative or the termination of its status by some legal means. The general rule is that the employees’ designation of their bargaining representative does not grant a permanent status but that such status continues until it is terminated in some legally effective manner. (56 C. J. S., Master and Servant, § 28 [36].) Stated in another way the status of a labor union, properly selected as the exclusive bargaining agent for employees, is presumed to continue on their behalf until it is terminated in some legally effective manner. (Wis. E. R. Board v. International Asso., etc., 241 Wis. 286, 6 N. W. 2d 339.) This rule is followed under the National Labor Relations Act and the many state acts patterned after the federal act. Many cases on this subject are set forth in the annotation in 144 A. L. R. 444 and in the more recent annotation to be found in 42 A. L. R. 2d 1415. It is important to note that under the National Labor Relations Act and similar state statutes, a fixed term is not usually provided for the duration of a status as exclusive bargaining agent and that the matter of termination of status as an exclusive representative is usually left to administrative proceedings provided by statute. For example, under the present Kansas statutes pertaining to collective bargaining (K. S. A. 44-803 through 44-817), the selection of a collective bargaining unit and its representative and the termination of the status of an exclusive representative are left to rules and regulations adopted by the state labor commissioner and administrative proceedings thereunder. Likewise the public employer — employee relations act (K. S. A. 1972 Supp. 75-4321 et seq.) adopted in 1971 does not prescribe any fixed time within which the status of an exclusive representative shall continue. Controversies involving questions of representation are left to the public employee relations board which is given authority to promulgate rules and regulations to establish a procedure for certification of an exclusive representative. (K. S. A. 1972 Supp. 75-4327.) We are convinced that the collective negotiations act, K. S. A. 72-5413 et seq., when read in its entirety contemplates the continuing status of an exclusive bargaining representative until terminated by legal means and does not require a yearly request by such an organization for recognition. We believe that the adoption of such a construction would have the effect of promoting stability and tranquility in the relationships between school boards and their professional employees.
K. S. A. 72-5416 (d) authorizes a board of education to deny recognition to a professional organization if within the previous 36 months the board has lawfully recognized a professional employees’ organization other than the petitioner as the exclusive representative of any professional employees included in the unit described in the petition. This section of necessity disposes of the argument that a recognition terminates automatically at the expiration of 12 months after it is granted.
We note also section 72-5416 (b) which requires a competing professional organization to demonstrate support of at least 30% of the professional employees before a request for recognition will be denied. A reasonable interpretation of this section is that recognition once granted shall be continued unless at least 30% of the professional employees oppose the established exclusive representative. Furthermore a continuance of exclusive representative status beyond a period of one year is inferred by K. S. A. 72-5423 which provides that notices to negotiate on new items or to amend an existing contract must be filed on or before December 1 in any school year by either party. If an organization were required to petition for a status as exclusive representative each and every year then this provision in 72-5423 would seem to be meaningless. For these reasons we interpret K. S. A. 72-5413 et seq. to mean that recognition and the status of an exclusive bargaining representative continue until a new request is filed with a board of education by its employees seeking either recognition of another exclusive representative or nonrecognition of the formerly recognized representative. We further hold that the act does not contemplate a unilateral withdrawal of recognition of an exclusive representative by a school board in the absence of a request from its employees filed with the board pursuant to K. S. A. 72-5416. To hold otherwise would defeat the purpose of the act to give to the professional employees of school districts the right to bargain collectively free from interference by the school board.
The act provides a remedy to terminate the status of an exclusive representative where it has lost majority support. K. S. A. 72-5414 not only affords professional employees the right to collective bargaining but also provides that professional employees have the right to refrain from such activities. The right of employees not to bargain collectively is further recognized in K. S. A. 72-5416 which provides that where a request for recognition is made the board of education should not grant recognition to the proposed bargaining representative where the board of education has a good faith doubt as to the accuracy or validity of the evidence demonstrating majority support. The act anticipates that disputes will arise between professional employees’ organizations and also between a professional organization and employees who do not desire to be represented by it. In such situations a remedy is provided by K. S. A. 72-5417 which states as follows:
“72-5417. Nonrecognition disputes to be determined by state board of education on application therefor. A petition may be filed with the state board of education, in accordance with such rules and regulations as it may prescribe for such filings, asking it to investigate and decide the question of whether professional employees of an appropriate negotiating unit have selected or designated an exclusive representative under section 3 [72-5415] of this act, by:
“(a) A board of education alleging that it has received a request for exclusive recognition from a professional employees’ organization and has a good faith doubt as to the accuracy or validity of the claims made in such request; or
“(b) by a professional employees’ organization alleging that it has filed a request for recognition as exclusive representative with a board of education and that such request has been denied.”
The function of the State Board of Education under this statute is essentially to investigate and decide the question of whether professional employees of an appropriate unit have selected or designated an appropriate representative under K. S. A. 72-5415. The jurisdiction of the State Board of Education in these matters may be invoked by the local board of education by a petition alleging it has received a request for exclusive recognition from a professional employees’ organization and has a good faith doubt as to the accuracy and validity of the claims made in such request. The jurisdiction of the State Board of Education may also be invoked by a petition filed by a professional employees organization alleging it has filed a request for recognition as exclusive representative with a board of education and that such request has been denied. In both instances the statute contemplates a dispute between professional employees as to whether or not a particular professional organization should be recognized as the exclusive bargaining representative. This construction is supported by K. S. A. 72-5418 which provides that the State Board of Education shall dismiss without determination any petition if the petition is not supported by credible evidence that at least 30% of the professional employees in the unit are members of the organization seeking recognition or the board of education has, within the previous 12 months, lawfully recognized a professional employees’ organization other than the petitioner as the exclusive representative of any professional employees included in the unit. This statute protects the status of a recognized exclusive representative from professional employees in the unit who are opposed to the organization unless a showing is made that they represent at least 30% of the employees in the unit. This statute also affords to a recognized exclusive representative a period of 12 months after recognition in which it can not be challenged at all by another professional organization.
Turning to the situation of the defendant board of education in the case at bar we have concluded that under the statutes the board had no right to withdraw recognition of the plaintiff organization or to refuse to negotiated with it because of a claimed loss of majority representation in the absence of an application from another group of employees to terminate the authority of the plaintiff as the previously recognized exclusive bargaining representative. In other words the board could safely negotiate with the plaintiff as exclusive bargaining agent until at least 30% of the professional employees filed with it a request for the representation of another professional organization or a request that the status of plaintiff as exclusive representative be terminated. Upon the receipt of such a request the board of education could then file a petition with the State Board of Education under K. S. A. 72-5417. The State Board of Education could conduct an inquiry or investigation or hold hearings or hold an election to determine whether or not the plaintiff organization represents a majority of the professional employees in the unit. Under this construction if the employees are dissatisfied with their chosen union they may submit their own grievance to the local board of education and then to the State Board of Education. If the local board of education has a good faith doubt about its duty to continue bargaining, its responsibility is to petition the State Board of Education for relief. It has a duty to continue to bargain and negotiate with the previously recognized exclusive representative until the State Board of Education has determined the controversy. The underlying purpose of the statute is to encourage good relationships between a board of education and its professional employees. To allow boards of education to rely on the rights of their employees in refusing to bargain with a formally recognized union is not conducive to that end; it is inimical to it. (Brooks v. Labor Board, 348 U. S. 96, 99 L. Ed. 125, 75 S. Ct. 176, 42 A. L. R. 2d 1405.)
The defendant board of education contends and the trial court found as a matter of law that the plaintiff organization had an administrative remedy available by filing a petition with the State Board of Education as provided in K. S. A. 72-5417 and that sucb remedy had to be exhausted before the district court could assume Jurisdiction. We do not agree. The Liberal-NEA was formally recognized through the statutory procedure in October of 1970. During the school year 1971 the defendant board of education recognized plaintiff as the exclusive representative in its school board policy publication for the school year 1971-72. Furthermore on November 30, 1971, the defendant board of education through its superintendent Mr. Smalling delivered to the plaintiff its written notice as to new items to be negotiated pursuant to K. S. A. 72-5423 and further recognized the Liberal-NEA as the negotiating unit. The status of plaintiff as the statutory exclusive representative continues in effect until terminated by law through the procedure discussed heretofore. The plaintiff had no duty to petition for a status it already had. The plaintiff as statutory exclusive representative was entitled to be recognized and the defendant board of education had a statutory duty to enter into professional negotiations with it under K. S. A. 72-5423.
In view of the conclusion which we have reached in this case that the defendant board of education had a statutory duty to enter into negotiations with the plaintiff Liberal-NEA, it follows that a writ of mandamus should have been granted by the trial court. (K. S. A. 60-801; Woelk v. Consolidated School District, 133 Kan. 346, 299 Pac. 648.) As part of its prayer for relief the plaintiff seeks to recover damages and attorney fees sustained by reason of the refusal of the defendant board of education to negotiate with the plaintiff. We have concluded that damages and attorney fees should be denied under the circumstances shown in this case. We have held that the underlying test to determine whether or not damages and attorney fees should be allowed in a mandamus action is whether the refusal of the public official, commission or board to perform the duty imposed by law was reasonable under all the facts and circumstances. (Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P. 2d 732.)
In view of the novelty of the legal questions and the fact that the defendant board of education relied upon the legal opinion of David W. Kester, departmental attorney for the State Board of Education, we cannot find that the board of education acted unreasonably in refusing to negotiate with the plaintiff. We find on the other hand that there was a reasonable doubt on the part of the members of the board of education relating to the questions involved. Hence the request for the allowance of damages and attorney fees must be denied.
Comment should be made in regard to the failure of the State Board of Education to prescribe rules and regulations to govern the administrative procedure in the determination of nonrecognition disputes as provided under K. S. A. 72-5417. One of the difficulties faced by the parties in this case was the fact that such rules and regulations have not been adopted by the State Board of Education. We hope that such rules and regulations will be adopted in the near future so that a prompt administrative remedy will be available in situations similar to the one we have before us.
The judgment of the trial court is reversed and the case is remanded to the district court -with directions to issue an order of mandamus requiring the defendant board of education to engage in collective negotiations with the plaintiff in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action challenging the validity of the annexation of certain land to the city of Coffeyville. Trial to the court resulted in a judgment for the city, from which the plaintiff has appealed.
The pertinent facts are not in dispute. By its ordinance No. 5515 the city sought to annex numerous tracts of land lying west of the city, the region being commonly known as West Coffeyville. The property included platted subdivisions, unplatted tracts of varying acreage and land owned by the state. The trial court upheld the annexation of the platted land, the state-owned land and five tracts each containing less than twenty acres of the unplatted land, which unplatted tracts each adjoined the existing city boundary, and it voided the annexation of the remaining unplatted tracts. The city has not appealed from this latter ruling and it is of no concern here.
The annexation proceeding was brought pursuant to legislation enacted in 1967 which has not previously been the subject of consideration by this court. Brief history of this legislation may be helpful. In 1965 the legislature adopted a concurrent resolution directing the legislative council to make a study of the laws concerning city annexation and to report any recommended legislation to the 1967 legislative session (Laws, 1965, Chap. 126). After preliminary consideration of the problem presented the legislative council in ton requested the League of Kansas Municipalities to prepare a draft bill which would correct certain deficiencies noted in the then current annexation statutes. The League complied with this request and submitted a proposed draft which was later embodied in House Bill No. 1333, introduced in the 1967 legislative session (see 17th Biennial Report and Recommendations of the Kansas Legislative Council, Part I, Proposal No. 11, p. 55). The League also prepared printed items entitled “House Bill No. 1333 Genera] Explanation”, dated March 28, 1967, and “Notes on HB 1333” which contained explanatory footnotes to various items contained in the bill. From all the foregoing it is readily apparent that that which was sought was a single, comprehensive enactment under which reasonably expeditious annexation to cities might be had.
With certain omissions and other changes not here material the 1967 legislature enacted the proposed legislation (Laws, 1967, Chap. 98), which now appears as K. S. A. 1972 Supp. 12-519, et seq. The present annexation was had under the following two sections of that act.
K. S. A. 1972 Supp. 12-519 provides in part:
“Definitions. As used in this act: (a) ‘Tract’ means a single unit of real property under one ownership, outside the corporate limits of a city, platted and/or unplatted. . . .
“(b) ‘Land’ means a part of a tract or one or more tracts.
“(d) ‘Adjoins’ means to lie upon or touch (1) the city boundary line; or (2) a highway, railway or watercourse which lies upon the city boundary line and separates such city and the land sought to be annexed by only the width of such highway, railway or watercourse.
“(e) ‘Platted’ means a tract mapped or drawn to scale, showing a division or divisions thereof, which map or drawing is filed in the office of the register of deeds by tire owner of such tract.”
K. S. A. 1972 Supp. 12-520 provides in pertinent part:
“Conditions which permit annexation; ordinance; validity. The governing body of any city may by ordinance annex land to such city if any one or more of the following conditions exist:
“(a) The land is platted, and some part of such land adjoins the city.
“(c) The land adjoins the city and is owned by or held in trust for any governmental unit other than another city.
“(d) The land has a common perimeter with the city boundary line of more than fifty percent (50%).
“(f) The tract is so situated that two-thirds (%) of any boundary line adjoins the city, except no tract in excess of twenty (20) acres shall be annexed under this condition.
“The governing body of any city may by one ordinance annex one or more separate tracts or lands each of which conforms to any one or more of the foregoing conditions. The invalidity of the annexation of any tract or land in one ordinance shall not affect the validity of the remaining tracts or lands which are annexed by such ordinance and which conform to any one or more of the foregoing conditions.”
Some general observations respecting this new legislation as found in the cited material prepared for the legislature by the League of Kansas Municipalities may be in order: For the first time in annexation law in this state terms are defined so that they have standard meaning. “Tract” is the specific term used to describe a single piece of land, platted or unplatted, under one ownership. It is determined in size by ownership (12-519 [a]). “Land” is given the broadest possible meaning (12-519 [b]). For purposes of annexation any tract mapped or drawn to scale, showing a division or divisions thereof, filed by the owner with the register of deeds, is “platted”, regardless of whether streets, alleys or blocks are shown (12-519 [e]). Thus the definition of “platted” is broadened considerably from that heretofore judicially ascribed to it under prior annexation statutes (see, e. g., State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806, and James v. City of Pittsburg, 195 Kan. 462, 407 P. 2d 503, which held that land to be platted must be subdivided into blocks, streets, and/or alleys). Many present day subdivisions have few streets and no alleys. There are often no “blocks” in the traditional meaning of the word. For platted land to be annexed some part of it must adjoin the city. Use of the term “land” permits the talcing of several tracts without regard to ownership, so long as the land is platted (12-520 [a]). Publicly owned land adjoining a city, not owned by another city, may be annexed (12-520 [c]). An unplatted tract of not more than twenty acres may be annexed where it is so situated that two-thirds of any boundary adjoins the city (12-520 [/]). The proviso that a city by one ordinance may annex one or more separáte tracts or lands each of which conforms to any one of the prescribed conditions for annexation (last paragraph of 12-520), permits consolidation of separate annexations in one procedure, thereby saving time and expense. The procedure is permissive but is not intended to permit annexation of any lands which depend on the completion of other pending annexations before the conditions for annexation exist (see also League of Kansas Municipalities, “Annexation, A Manual For City Officials In Kansas”, Revised May, 1970). These views appear harmonious with the statutory language and worthy of consideration as reflection of legislative intent.
We turn now to the factual posture of the land sought to be annexed. Hadsell’s Subdivision adjoins the existing city limits on the north. This platted area consists of eight blocks, each of which contains five lots. It has streets but no alleys. It is adjoined on the north by Outlots 1, 2, 3 and 4. This latter area is platted (as revealed by pretrial stipulation of the parties respecting exhibits) but contains only one street and no blocks or alleys.
Immediately to the west of the southernmost tier of lots in Had-sell’s Subdivision there are five unplatted tracts of land. Each of these tracts contain less than twenty acres and the entire south boundary of each adjoins the existing city limits.
Aker’s Subdivision adjoins the westernmost tract of the un platted tracts just mentioned and it also adjoins the existing city limits on the north. Akers is platted and consists of four blocks containing a total of thirty-nine lots. Akers contains streets but no alleys.
On the west Aker’s is adjointed by Witwer’s Subdivision, a platted area of five blocks containing a total of forty-two lots. Witwer’s has streets but no alleys. Two of these streets touch a street within the existing city limits. The land owned by the state lies along the southwest side of Witwer’s and south of the westernmost portion of Aker’s and adjoins a small portion of the existing city limits.
On its north side Aker’s Subdivision is adjoined by County-Clerk’s Subdivision. County Clerk’s has streets and is divided into thirty-five rectangular numbered tracts. It has neither blocks nor alleys.
In turn County Clerk’s is adjoined on a portion of its north boundary by Sunny Slope Addition, a platted area in the form of a long cul-de-sac containing one street and twenty-two lots but no blocks or alleys.
Recapituling, and proceeding from east to west along the city limits, the existing city boundary adjoins (in the sense of lies upon) first, a contiguous body of platted land consisting of Hadsell’s Subdivision and Outlets 1 to 4; second, five unplatted tracts of less than twenty acres each; third, a contiguous body of platted land consisting of Aker’s, Witwer’s and County Clerk’s Subdivisions and Sunny Slope Addition; and finally, the state-owned property.
The principal thrust of appellant’s argument is directed against the annexation of the platted land. The argument boils down to this: That no more than the southernmost tier of lots in Hadsell’s and Aker’s which actually lie along the existing city boundary can be annexed; that none of the lots in the other platted areas can be taken inasmuch as those areas are not legally platted because of the lack either of blocks or alleys or both; that this annexation should be invalidated because on the next round the city can do something it cannot now do in that it can then annex all the unplatted tracts of land lying between Hadsell’s and Aker’s by reason of subsection (d) of 12-520 allowing annexation under the common perimeter theory — thus enabling the city to do something indirectly which it cannot do directly. Appellant also points out that nearly all of the tracts in the platted portions are individually owned by different owners.
Appellant’s position is untenable. Extension of city boundaries obviously results in more adjacent property being eligible for annexation provided other requisites are met but solution to any problem thereby raised lies in the legislative rather than the judicial arena. The wisdom, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. The basic function and duty of the courts is to determine whether a city has statutory authority and whether it has acted thereunder in passing an annexation ordinance (State, ex rel., v. City of Overland Park, 192 Kan. 654, Syl. ¶ 3, 391 P. 2d 128).
For its contention that the subdivided areas are not legally platted appellant relies on older law dictionary definitions of the term “plat” wherein reference is made to lots, blocks, streets and alleys, and on some of our decisions such as James v. City of Pittsburg, supra. As already indicated, the new statutory definition of “platted” must control, rendering any former requirement for blocks or alleys obsolete.
The term “land” means a part of a tract or one or more tracts— the broadest definition possible. So long as land is platted and some part of such land adjoins the city, the annexation of several tracts without regard to ownership is permitted. This concept is not a break with the past. In Mason v. Kansas City, 103 Kan. 275, 173 Pac. 535, the plaintiff challenged the validity of an ordinance annexing her land to the city on the ground, among others, that it did not touch the boundaries of the city. It appears that six platted additions lay between plaintiff’s land and the existing city limits and that all seven areas were annexed at the same time. The statute under which annexation was had (G. S. 1915, § 1041) provided:
“Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots . . . said [platted] lands . . . may be added to, taken into and made a part of such city by ordinance duly passed.”
This court ruled against plaintiff, holding:
“Property consisting of one body of land may be annexed to a city of the first class, if the whole of the tract thus annexed is contiguous to the city, although parts of the tract may be owned by different persons.” (Syl. ¶ 1.)
In reaching this decision the court relied on Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143. There a number of platted lands, together with plaintiffs’ land, were annexed to the city pursuant to statutory authority which provided that any city of the first class may enlarge or extend its limits or area by an ordininace specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area. District court approval of the ordinance prior to its effectiveness were required. Plaintiffs’ tract of land was described as:
“. . . [0]ne of several tracts that, taken in their entirety, compose a continuous body of land lying contiguous to the prior limits of the city, some of which tracts do adjoin the city, and this tract does adjoin some that adjoin the city limits.” (p. 743.)
In upholding the annexation this court held:
“A city of the first class has power to extend and enlarge its boundaries so as to include within it a continuous body of land lying contiguous to the prior limits of said city, when the ordinance providing for such extension is approved by the district court of the county within which said city is situated.
“A city of the first class has the power to enlarge or extend its limits so as to include several tracts of land, some of which adjoin the city, and others adjoining those that do adjoin the city, so as to form one continuous body, but the annexation ordinance must be approved by the district court of the county in the manner and under the conditions and requirements of the statute.” (Syl. fjfl,2.)
As to the statutory power of the city to annex platted land adjoining the city without reference to the extent of the land so platted the court commented:
“. . . [T]his part of the section [is] framed on the theory that by so platting the land the proprietor himself establishes its character as city property, and assents to its absorption by the city.” (p. 743.)
Under the 1967 enactment it seems clear, and we so hold, that a city by ordinance may annex a contiguous body of platted land, consisting of one or more tracts, so long as some part of the platted land adjoins the city. The platted portions in question here were properly annexed.
Appellant really presents no challenge to the annexation of the state-owned property and the five unplatted tracts of less than twenty acres each and, indeed, none can properly be made. These properties adjoin (lie upon the boundary line of) the city and are specifically subject to annexation pursuant to subsections (c) and (/), respectively, of 12-520.
Lastly, appellánt urges that ordinance No. 5515 is unconstitutional on its face and in its application. Argument advanced in support of this contention amounts to no more than the assertion that applicable statutory law was not followed in the enactment of the ordinance. We have just held to the contrary. No infirmity appears in the ordinance and more need not be said. The trial court specifically upheld the constitutionality of the statutes in question and no further challenge to that legislation is made upon appeal.
Also interspersed is the argument that other annexation statutes were ignored. The simple answer to this is that the city proceeded under the 1967 enactment which is complete in itself and prior legislation on the subject is irrelevant.
No error appears in the trial court’s ruling and the judgment is affirmed.
APPROVED BY THE COURT. | [
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Per Curiam:
This is a personal injury case. Summary judgment was granted to appellees upon completion of discovery. The trial court concluded that the undisputed facts established appellees were not negligent as a matter of law and that appellant’s own negligence caused his injuries. Appellant contends there was dispute as to material issues of fact and that the questions of appellees’ negligence and his own contributory negligence should have been submitted to the jury.
On December 15, 1967, appellant and his attorney came to appellees’ law offices in answer to a subpoena for a deposition in a federal district court case. After the deposition was completed, appellees told appellant and his attorney the most direct route to the parking lot was down a hallway and out the rear door of the building. As appellant walked down the hallway, he tripped over a wastebasket which was located against a storage cabinet that formed one wall of the hallway.
The evidence showed appellees’ law office building had modem fighting equipment; that the hallway was approximately three feet wide and bordered a work area used by the firm’s secretaries; that the wastebasket was about fifteen inches high and twelve inches in diameter. Witnesses differed as to the intensity of the fight in the hallway, but all, including appellant, conceded that there was sufficient fight to see where one was walking, and that one could have seen the wastebasket if he had looked. Appellant did not see the wastebasket until he fell over it.
In ruling on a motion for summary judgment, the court must resolve against the movant any doubt as to the existence of a genuine issue of material fact, taking as true the evidence of the party opposing the motion and giving such party the benefit of all reasonable inferences that may be drawn from such material. (Johnson v. Farha Village Supermarkets, Inc., 208 Kan. 241, 491 P. 2d 904.)
Appellant admitted there was sufficient light in the hallway to see; that he was watching where he was putting his feet as he walked; that his view was not obstructed, but he did not see the wastebasket. Appellant is bound to use ordinary care for his own safety. He cannot be excused because he did not see what was in plain view to be seen. (George v. Ayesh, 179 Kan. 324, 295 P. 2d 660.)
The trial court did not err in ruling appellant contributorily negligent as a matter of law.
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The opinion of the court was delivered by
Foth, C.:
This case started out as an action to foreclose and cancel a contract for the sale of a ranch, bought by the sellers alleg ing default by the buyers. By counterclaim it was converted into, and was basically tried as, an action by the buyers against the sellers for damages for fraud.
The trial court, after hearing eight days of testimony, refused to foreclose the contract and awarded damages to the buyers in the total amount of $181,269.78. The sellers, plaintiffs-appellants, were Melvin V. Fox and his wife Barbara; the buyers, defendants-appellees, were Fountain L. Wilson and his wife Patricia. They will be referred to by name.
In the middle of May, 1968, the Wilsons were the owners of the El Rancho Motel at Pratt, Kansas. They had run the motel for about a year, and weren’t doing too well with it. It had taken their life savings to buy it, in the form of their equity in their home and four rental houses in Wichita, or about $23,000. The total price had been $87,500. Repairs and refurbishing were making serious inroads into current operating revenue, and two outstanding loans were proving burdensome. Fountain Wilson, who was about 37 years old at the time, had been raised on a farm. After ten years of factory work, selling insurance and most recently operating the motel, he was looking for a chance to return to the tranquillity of rural life. It was then he came across an ad in the Wichita paper for the “Fox Ranch,” a 3840 acre spread in Gove County.
A couple of calls to the listing broker in Dighton brought the news that the seller would consider taking the motel in trade. They also brought a specification sheet, later admitted into evidence as defendant’s exhibit 1. Features which subsequently became important were:
“377 acres feed grain base (average 33 bn)”
“Wheat averaged 57 bu. per acre 1967
% of 500 acres fine growing wheat goes”
“ASC Payments about $6,000.00 last year”
“12 wells rebuilt in 1967 with new cylinders. 3 with plastic casings, wells have never been pumped dry.”
“30 ft. to water, good prospect for irrigation”
“Cut 22,000.00 bales of hay in creekbottoms, last year”
“Ran 1200 head yearlings — year around”
“Modem improvement, (not extra big tenant house)”
“3 miles to oil field”
“Buyer has option to buy the machinery”
A few days later Wilson and his fifteen year old son were on their way to Gove to meet the broker and see the ranch. Fox wasn’t there when they arrived, but the three of them drove around the place in a pickup truck; because of the weather they did not get out. Wilson learned that the ranch had been “written up” in a farm magazine for its outstanding beef production, and that Fox was selling only because of an injury to his back. The broker impressed upon him the scale upon which Fox operated and his unequalled reputation in the community.
It was a little later that day that Wilson first met Fox. After looking at the growing wheat the party retired to a cafe in Gove, and there discussed the ranch and its potential for some four hours. The asking price, at $115 per acre, amounted to $441,600. Wilson explained that all he had was the motel, which he valued at $100,-000, subject to a $30,000 mortgage. (In fact, this would be the debt after a proposed refinancing.) He would, he said, be entirely dependent on income from the ranch for both living expenses and debt payments of principal and interest; he would have to rent the grassland for cash. Various assurances were given him, most notably that he would have Vs of the wheat and the ASG payments for the year, and could count on the yield from the 377 acres of milo — which should be put in right away. Fox promised to look into finding a tenant for the pasture.
The first meeting led to a second a few days later, when the Foxes journeyed to Pratt to look over the motel. They stayed a couple of days looking the place over and discussing terms. Once again it was emphasized that time was running out to get the milo in, and that the crop would be a source of ready cash — if the deal was to be closed it should be done soon.
In addition, Fox reported notable progress in the pasture rental pi'oject. Mrs. Fox mentioned a telephone call for her husband, and he remarked, “Oh, I bet that is on the pasture rental. They have really been after me to get that taken care of.” It appeared that the Keller brothers, large cattle operators at nearby Oakley, were all set to rent the grassland for $15,000 cash in advance. The only reason Fox hadn’t signed them up before was that he thought Wilson should make the agreement directly, if he was going to buy the ranch.
It was during this meeting that the question of machinery came up. Wilson had none, while Fox had that with which he claimed to have been operating. He presented a three page inventory of personal property — machinery, trucks, equipment and supplies — for which he wanted $48,000. This inventory was admitted into evi dence as defendants’ exhibit 2. Wilson had seen the machinery lined up at the ranch, looking new to his eyes. It had, in fact, been freshly painted in colors to match the manufacturers’ original paint. According to Wilson, Fox said it was in tip-top condition and he would personally guarantee every item.
The result of this meeting was an agreement to trade the Wilsons’ $70,000 equity in the motel for the Foxes’ equity in the ranch. The Wilsons would assume a mortgage to Metropolitan Life Insurance Company of $124,000, leaving a balance of $247,600 due to the Foxes. This was to be paid in annual installments, with the first, in the amount of $15,000, to be made on August 1, 1968, just over two months away. Wilson was also to pay $1,500 for the rent of an additional 480 acres of pasture.
At the same time the Wilsons agreed to buy the inventoried personal property for $48,810, to be paid by assuming Fox’s three outstanding notes in the total amount of $37,500 and giving a personal note to the Foxes for the balance of $11,310.
With terms agreed upon Fox went to his attorney, Ray Sloan, of Hoxie, and had him draw the real estate contract. The closing was in Sloan’s office on June 3, 1968, some ten days to two weeks after Wilson and his boy first looked tihe ranch over. The Wilsons appeared without an attorney, looked the contract over for twenty minutes or so, and then all parties signed. According to Wilson, Just after signing he asked Sloan about the mineral rights clause in the contract. Upon being told that the Foxes were reserving the reversionary interest in the % of the mineral rights then outstanding, he remarked that “That isn’t what we had agreed upon.” Fox insisted that it was their agreement, and Sloan said “I wish you had brought this up before you signed the contract.” Sloan confirms that this exchange took place, while Fox at trial had no recollection of it.
There was no further disagreement at tihe real estate closing, although Sloan observed that Wilson was disturbed about the matter of the mineral rights: “I could tell that from his demeanor but nothing further was said.” Wilson hadn’t the cash to make the $1,500 pasture rent payment, so a note for that amount was prepared and executed.
At the closing Sloan also suggested that tihe Fox abstracts should be secured from Metropolitan Life for examination by the Wilsons’ attorney, in accordance with the customary provision in the con tract. According to Sloan, Fox asserted that since the title had been good enough for Metropolitan to make a loan on there was no point in going to the trouble and expense of having the abstracts sent out for examination. Wilson, who said he had no attorney, acquiesced in this thinking.
The Wilsons and the Foxes proceeded from Sloan’s office to the financial institutions holding Fox’s notes. The first was the Citizen’s State Bank at Grainfield, where the note was for $15,000. There it developed that the bank would take Wilson’s note, co-signed by Fox, only if it was payable August 1st. With $15,000 due to Fox the same day Wilson didn’t see how he could do it. Fox, he testified, had assured him he would have at least six months on the note, and could renew it then if he couldn’t pay. In due course Fox agreed that he would wait for Ms $15,000 payment until the milo crop was sold. This would let Wilson pay the bank from the $15,000 coming in from the Keller brothers’ pasture rent. On this understanding the note was signed.
On leaving the bank the group headed for Grinnell. En route Fox explained the insistence of the Grainfield banker on an early maturity. It appeared that the year before he had wanted Fox to make a payment on the principal of the note but Fox, who was angry with him at the time, had told him his wheat crop was hailed out and he couldn’t pay. Since that crop had been represented to Wilson as making 57 bushels an acre, or over 26,000 bushels, Fox’s tale of deceiving the banker struck Wilson as “peculiar.”
At Grinnell Wilson’s note for $14,000, secured by certain of the machinery, was substituted for that of Fox in a like amount at the People’s State Bank.
They went on to the Tri-County Credit Union, where Fox had a note for $8,500. Fox owed $436.76 in interest, which was added to the principal, so that Wilson signed a note for $8,936.76. The extra $436.76 was to be credited on Wilson’s obligation to Fox for the personal property.
The credit union took a security agreement covering a number of items of the personal property. According to the manager, Fox had been in a few days before with a list of these items to make sure they would be acceptable. This list was one page of the inventory of items sold to Wilson. The largest and most important item, in the lender’s eyes, was $6,600 worth of shedded hay. The manager asked Fox specifically how the hay was valued, and Fox said at $20 a ton. This became significant later when the manager and a member of the organizations credit committee went to the ranch to inspect their security. They found at most 60 tons of old, cobweb covered hay, with no evidence tihat any had been removed. They were looking, of course, for the 330 tons they and Wilson had assumed would be there.
The next day the Wilsons had serious second thoughts. The deal they had made loomed large, and the mineral rights matter and the episode with the Grainfield banker raised doubts in their minds. Mrs. Wilson called Mrs. Fox and wanted to call the whole thing off; Mrs. Fox replied that her husband was on the way to Pratt, and they should talk to him. Fox, on his arrival at the motel, said that after the substitution of notes it was too late to back out. Wilson offered to have a machinery sale, with Fox to pocket any profit or the two of them to split any loss. Fox wouldn’t agree to such a proposal. He reassured Wilson about the ranch’s income potential by showing him a warehouse receipt for 26,000 bushels of wheat — last year’s crop — and a purported copy of his federal income tax return showing a tax liability of $10,000 for that year. (Mrs. Fox was later to testify that she and her husband had never paid any such income tax — the most they had paid during their four years at the ranch was $3,000 one year; the other years it was nothing.)
When the offer to rescind was unavailing the Wilsons prepared to move to the ranch. Wilson and his boy went up about a week later, and found the house uninhabitable. They slept the first night in a shed, and later moved into the trailer which had been described as the “not extra large” tenant house. The entire family, including four children, lived there until some time in August, when they were able to move into the ranch house.
Wilson’s first farming job was to get the 377 acres of milo in, as Fox had urged him to do, as soon as possible. As he did so he had considerable difficulty with the machinery breaking down, and found some of the vital parts missing. Nevertheless he managed to get his crop planted, with the aid of his son, in about two weeks of steady work. He then went to the local ASC office to make sure Fox had entered him as the owner of the current wheat crop. There he learned not only that this had not been done, but the vital 377 acre milo allotment had been diverted by Fox into the 500 acres of growing wheat!
There was no alternative but to plow up the milo he had just planted. This he proceeded to do, although the machinery again wouldn’t function and he ended up borrowing a neighbor’s tractor and plow.
Another surprise came when, as he was working his fields, a Mr. E. L. Downard approached him and advised that he was the fee owner of the ranch. It transpired that Fox was purchasing the place on a 1964 contract, and still owed Downard and his wife $128,000. Fox had requested Sloan not to mention that fact in his contract with Wilson so as not to “complicate” things.
Additional difficulties began to appear, and Wilson entered into a series of negotiations with Fox with a view to adjusting the sales price and terms of the contract. These negotiations eventually broke down, and on November 20, 1968, the Foxes brought this action to foreclose the contract, basically for the failure of the Wilsons to make the August 1 payment of $15,000.
The Wilsons answered denying default, and counterclaimed for damages and rescission, alleging numerous fraudulent misrepresentations as to both real and personal property. As to their failure to make the August 1 payment, they pointed out that they had been served on July 29 with an “order of attachment” in a Pratt County case, where a broker claiming an exclusive listing of the ranch was suing the Foxes for his commission.
In due course the Downards intervened, seeking to foreclose the contract under which they were selling to the Foxes. Their interests were provided for at a pre-trial hearing on the Foxes’ application for a receivership, and they did not participate in the trial itself.
As previously indicated, the trial was largely concerned with the Wilsons’ allegations of fraud, although the Foxes’ amended reply also alleged misrepresentations by the Wilsons in the sale of the motel. Additional facts are reflected in the extensive findings of the trial court:
“No. 2
“The plaintiffs have not sustained the burden of proof of any misrepresentations on the part of the defendants in connection with any of the transactions between the plaintiffs and the defendants herein.
“No. 3
“The court finds from a preponderance of evidence that the plaintiffs made the representations contained in defendants’ exhibits 1 and 2, and made the oral representations to defendants at the times and places prior to the sales to defendants of the real estate and personal property substantially as testified to by the defendant Fountain L. Wilson. The court finds the falsity of such representations from a preponderance of evidence substantially as testified to by the defendant Fountain L. Wilson, and witnesses called by defendants. The Court finds where such representations were false, they were substantial misrepresentations of the quality, condition and value of the real estate and personal property, as well as the quantity of personal property offered for sale, and that the plaintiff Melvin Fox made the misrepresentations knowing they were false and with the intention to deceive and defraud the defendants. The court finds the defendants relying on the representations of the plaintiffs entered into the contracts, exhibit ‘A’ attached to plaintiffs’ petition and defendants’ exhibit No. 2, were deceived and suffered damages thereby in not receiving the value justified by plaintiffs’ representations if true.
“The evidence shows the defendants relied entirely on the representations of the plaintiff Melvin Fox. Prior to execution of the sales contracts and prior to delivery of possession of the real estate and personal property, the defendant Fountain L. Wilson spent about one and a half hours on the ranch real estate, and that time was spent in the yard and in a motor vehicle riding to and from some farm and pasture land. Mr. Wilson had made no inspection of the machinery or the improvements or the buildings or contents thereof. On that one visit to the ranch land he had only seen some freshly painted machinery and the location of the buildings and other items casually in passing by. Mr. Wilson had no part in furnishing information to attorney, Ray Sloan who drafted the real estate sale contract for plaintiffs, other than supplying the legal description of the Pratt motel and cafe property, which description was attached to the otherwise completed form of the contract when the defendants arrived at Mr. Sloan’s office for signing purposes, June 3, 1968. Mr. and Mrs. Wilson had no separate legal counsel. These facts were known to the plaintiff Melvin Fox.
“The defendants Wilson had complete confidence in the representations and integrity of the plaintiff Melvin Fox. The extent of the misrepresentations is shocking, even a misrepresentation of an urgency to complete the transactions in order that defendants could prepare the ground and plant 377 acres of milo under a false representation of an available A. S. C. allotment, which the defendants acted upon to their loss and destruction of the milo crop by order of the A. S. C. office.
“No. 4
“The court finds with reference to paragraph 5 of the real estate contract, exhibit ‘A’ attached to plaintiffs’ petition, that the clause quoted as follows:
“ ‘Except First Parties shall convey the mineral interests now owned by them under the Fox Ranch which mineral interest is a one half (’2) thereof, and First Parties reserve and not convey the reversionary interest in outstanding mineral interests under said land,’
is contrary to the previous oral agreement of the parties that the defendant purchasers were to receive all minerals including the reversion of term mineral interests outstanding. Said clause was inserted into the written contract by the plaintiff Melvin Fox, through his attorney, Ray Sloan, without the knowledge of the defendants. Mr. Sloan drew the contract as attorney for Melvin Fox from information furnished by Melvin Fox, and Mr. and Mrs. Wilson first saw the contract in Mr. Sloan’s office shortly before signing it. The defendant Fountain Wilson first noticed the clause a few minutes after signing the contract in attorney Sloan’s office while all parties were still present and then asked Mr. Sloan the meaning of the clause. Upon Mr. Sloan’s oral answer giving the meaning, Fountain Wilson immediately stated that was not our agreement. Thereupon, Mr. Sloan remarked, T wished you had told me before you signed,’ and the plaintiff Melvin Fox persisted the clause was in accord with the previous agreement.
“The court finds the quoted clause was inserted into the written contract by deception and fraud of the plaintiff Melvin Fox, and by the mistake of the defendants at the time of signing the contract, and the clause should be adjudged void and should be excised from the contract.
“No. 5
“Plaintiffs contracted with defendants for the latter’s purchase on June 3, 1968 of the Fox Ranch, the terms of which are set forth in exhibit ‘A’ attached to the petition, and as modified by exhibit ‘B’, dated June 5, 1968, and attached to defendants’ Answer.
“No. 6
“The Fox Ranch sale contract covered a gross sale price of $441,600.00, being based on 3,840 acres at $115.00 an acre. Of this amount, the defendants assumed responsibility for payment of a $124,000.00 mortgage lien against the land in favor of the Metropolitan Life Insurance Company. Defendants were given an additional credit of $70,000.00 for their equity in the El Rancho Motel and Cafe in Pratt, Kansas. The conveyance of the motel was predicated on an agreed value of $100,000.00, less a $30,000.00 mortgage obligation against same to be assumed by the Fox’s. After deduction of the $194,000.00 for the Metropolitan mortgage and the Pratt motel and cafe equity, a balance of $247,600.00 remained on the contract and this was payable in installments as set out in the third paragraph thereof.
“No. 7
“Contemporaneous with the real estate contract and as a part of the overall transaction, the plaintiffs sold the defendants the farm machinery, equipment and personal property identified in the inventory sheet admitted in evidence for a total price of $48,810.00 This was to be paid through the assumption by the defendants of three Fox notes at the Grainfield and Grinnell banks and the Tri-County Credit Union of Grinnell in the sum of $37,500.00, plus a note for $11,310.00 and security agreement (Plaintiffs’ exhibit #18) on a part of said personal property given by defendants to the plaintiffs.
“No. 8
“On June 3, 1968, the fee title to the Fox Ranch was still in E. L. Downard. Plaintiffs possessed nothing more than an equity and contract right for the purchase of same in accordance with the terms set forth in written agreement between the Downards, as sellers, and the Fox’s, as purchasers, dated June 3, 1964, copy being attached to the Downard Intervenor’s petition.
“No. 9
“Plaintiffs affirmatively concealed the true status of the title to said ranch from the defendants, including the Downard role therein.
“No. 10
“The fifth paragraph of the contract (Exhibit ‘A’ attached to petition) between the plaintiffs and defendants required each of the parties to furnish an abstract of title showing marketable tide to die real estate to be conveyed by each of the parties, or showing such party to be in a position to convey marketable tide when called upon under the terms of said contract.
“No. 11
“The plaintiffs were unable, until November 17, 1969, when they complied with this court’s order on the intervenor’s petition, to show a marketable tide. Until that time two major tide defects affected materially die plaintiffs’ ability to achieve marketability:
“A. From July 28, 1968, to January 13, 1969, (date of delivery of vacation of attachment order to defendants), the defendants were prohibited from making any payments under tiiis contract to plaintiffs by order issued in Case No. 10,254 in the case of Cossell Realty v. Melvin V. Fox, in die Pratt County, Kansas District Court.
“B. From January 13, 1969, to November 17, 1969, the record showed a contract foreclosure action herein by E. L. Downard and wife against die Fox’s relative to the contract for the purchase of the Fox Ranch by the Fox’s from die Downards.
“During those periods the tide of the plaintiffs to the Fox Ranch was not marketable and the plaintiffs gave defendants no reliable indication tiiey could or would make same marketable. Thus, defendants owed no duty of performance on said real estate contract during said interim, and no interest accrued against the defendants during that time on the defendants’ obligations to the plaintiffs.
“No. 12
“As the misrepresentations of plaintiffs hereafter noted became evident, the necessity for delivery of abstract exhibiting marketable tide became a reality. Request for abstract was made by Attorney Corwin Spencer for the defendants in July, 1968. No abstract was tendered or delivered by plaintiffs before suit was filed in November, 1968. The Answer of defendants, as well as the statements of their counsel in open court at the receivership hearing on January 15, 1969, reiterated demand for abstract. None was delivered until August 13, 1969. When delivered the abstract showed no probability of marketability because of die pendency of the Downard contract foreclosure proceedings. The situation reflecting non-marketability of title continued until November 17, 1969. During this period defendants owed plaintiffs no duty of performance or payment on the real estate contract. Interest and insurance premiums are not chargeable to defendants prior to November 17, 1969.
“No. 13
“Defendants have elected to stand on the contract and rely on the court for damages, instead of requesting rescission herein, for the reason that the events surrounding the transactions between the parties have made impossible a fair return to the status quo enjoyed prior to June 3, 1968.
“No. 14
“The plaintiffs intentionally and materially misrepresented three prospects for early income from said ranch. Defendants relied thereon to their detriment. Defendants knew plaintiffs were without assets other than their equity in the Pratt motel and cafe. Plaintiffs urged successfully an early execution of the real estate purchase contract under the misrepresented necessity for early seeding of the 377 acres of milo under the authority of the ASCS feed grain base allotted to the Fox ranch. Defendants planted the milo shortly after purchase of the ranch only to be informed by the ASCS that the Fox’s had diverted the entire 377 feed grain base to an increased wheat acreage and that the milo so planted must be destroyed. The average milo yield on this ranch was 33 bushels per acre. This was at least an average year. The market was $1.00 per bushel. Thus, defendants lost $12,400.00 milo income from this deception of the plaintiffs.
“No. 15
“Plaintiffs had assured defendants the Keller Brothers stood ready to consummate a season pasture rental arrangement calling for a $15,000.00 advance payment. Defendants found this to be untrue after they moved to the ranch and inquired of the Kellers. The plaintiffs advertised and represented to defendants that the prior year’s ASCS farm program payments were about $6,000.00. The truth was that those program payments were only $3,778.97, a difference of $2,211.03. Defendants had relied on plaintiffs’ representations relative to same and had even negotiated with Mr. Sutcliffe at the Grainfield Bank on that basis. The Keller pasture rent was to care for the Grainfield Bank note of $15,000.00 due August 1, 1968. The $12,440.00 milo crop income and the ASCS money was to more tiran cover the first installment due the Fox’s on the real estate contract, as well as the $1,500.00 pasture lease note. The loss of this income placed the defendants in unexpectedly difficult financial straits in said ranch operation from the beginning, a fact reasonably to be foreseen by the plaintiffs when they misrepresented each of said situations.
“These misrepresentations by plaintiff Melvin Fox, relied on by the defendants, were material inducements to defendants to purchase. However, only the milo item should be separate items of damage.
“No. 16
“The plaintiffs admitted at the trial the following credits be given the defendants: (1) $2,311.20, representing accrued interest due Metropolitan Life Insurance Company on its said mortgage for the period from the February 1, 1968 due date to the June 3, 1968 contract date, this being the obligation of plaintiffs because the real estate contract called for defendants’ assumption of $124,000.00 obligation, and no more, to Metropolitan. (2) A $436.76 credit, representing accrued interest owing by the plaintiffs to Tri-County Credit Union on an $8,500.00 note on June 3, 1968, and which interest was added, at the request of plaintiffs, to the note assumed by the defendants, and on the plaintiffs’ promise to grant equivalent credit for same on the real estate contract. (3) A Pratt cafe food stock inventory credit of $396.89.
“In addition, the evidence shows defendants to be entitled to an additional credit of $544.93 representing their equity in the Pratt motel vending machines and for which plainitffs agreed to give defenants credit.
“No. 17
“The plaintiff Melvin Fox misrepresented the personal property set out in defendants’ exhibit # 2 as all in good operable condition and priced each item on that basis. The machinery, personal property and equipment set forth in plaintiffs’ inventory sheet and sold the defendants for $48,810.00 was grossly and knowingly misrepresented. Plaintiffs willfully concealed the inoperability of much of the machinery, completely aware it was not fit for the purposes represented. The age and models of various machinery items was knowingly misrepresented. There were numerous shortages. The evidence indicates that said personal property had a maximum fair market value on June 3, 1968, of $22,170.00. Jim Losey, a neighbor familiar with said property, valued it at only $15,000.00. The difference between the plaintiff’s pretended value and the fair market value was the difference between $48,810.00 and $22,170.00, or $26,640.00, which last figure represented an unjust enrichment of the plaintiffs as a result of a planned fraud on defendants and defendants should recover the same from plaintiffs.
“No. 18
“The real estate contract of June 3, 1968, was preceded by and accompanied with fraud on the part of the plaintiffs. Melvin Fox’s oral representations pertaining to irrigation possibilities as testified by defendant Fountain Wilson as well as the reference to irrigation on defendants’ exhibit #1, were untrue as shown by a preponderance of evidence, and materially misrepresented the quality of the real estate and resulted in failure to deliver qualities on which the price was based. Plaintiffs’ witness Pryor acknowledged the existence of numerous items of error and untruth in the Hyames advertising sheet, defendants’ exhibit #1. Hyames testified he received his information, as did Pryor, from plaintiff Melvin Fox. The representations on water and irrigation prospects could not have been made except in disregard of all facts about the water situation at that ranch. Downard and Losey testified to a total of over 40 dry holes drilled for water during tiheir years on the ranch. Fox acknowledged no serious irrigation tests or efforts during his tenure. He was familiar with the Losey 1100' well. Pryor said his water maps showed no irrigation prospects. Fox blinded his mind — as he did on other things — to these facts.
“Similarly falsely representing an oil field three miles away and other misrepresentations relied on by defendants resulted in substantial failure of plaintiffs to deliver qualities of the real estate on which the purchase price was based.
“Fox misrepresented the capacity of said ranch for cattle on a year round basis. He claimed 1200 as the figure on defendants’ exhibit 1, yet the plaintiffs had no cattle on the ranch from November, 1966, to its sale date on June 3, 1968. He claimed 1183 head for the fiscal year from November, 1965, and about 800 head the previous year. However, the assessment records reported by him fail to show more than 134 head for the calender year 1965 assessment. Plaintiffs’ own evidence shows a normal requirement of four acres pasture per head of cattle. The Fox Ranch has approximately 2640 acres of pasture — enough to sustain an average requirement for 660 head. Plaintiff Melvin Fox acknowledged reliance on an extra section of land to be able to increase his herd.
“Melvin Fox misrepresented his hay production. On defendants’ exhibit No. 1, he claimed 22,000 bales of hay the prior year, mainly in the creek bottom land on the ranch. His testimony indicated a change to 1966 for that yield. This was inconsistent with his assertion he pastured and fed 1183 head of cattle on the ranch from late 1965 to November, 1966. Defendants testified that Bernard Otley cut most of the hay, amounting only to* 8,000-10,000 bales. Plaintiff was unable to substantiate any 22,000 bale claim.
“The availability of the 377 acre milo base was misrepresented by plaintiffs and the true facts concealed, as aforementioned, from defendants.
“Despite plaintiffs’ assertions of a good water supply in all wells, one was dry when defendants moved to the ranch in June, 1968.
“Plaintiffs intentionally misled defendants on the proximity of oil production, claiming a nearness of three miles, when the fact was seven miles, and plaintiff Melvin Fox admitted he regarded a capped, unproductive old test as an oil field.
“Numerous other misrepresentations and duplications arose in the real estate contract. There was a shortage of three boxcars for grain, the two 4500 bushel steel bins were dismantled and unerected, the 40' by 40' shop was a part of the two boxcars used for repair purposes, the tenant house turned out to be the trailer house for which Fox was charging an additional $1100.00 on the personal property inventory, and four stock tanks were duplicated by being charged for again in the personal property inventory. The fence, represented to be good, included at least five miles of old wire and posts of 40 or more years old. The steel posts in the ground were sold again as personal property.
“These, and the other matters testified to, sustain the evidence that plaintiffs knowingly and fraudulently misrepresented the ranch so sold the defendants to such a material degree that its represented value bore little resemblance to its true market value on June 3, 1968. The plaintiffs had purchased this land in June, 1964, for an average of $75.00 per acre. The court finds from a preponderance of evidence an average fair market value of $90.00 per acre, instead of the pretended $115.00 per acre. This acreage basis for the 3,840 acres conveyed produces a total fair market value for the ranch on June 3, 1968, of $345,600.00 instead of $441,600.00, the difference being damages because of misrepresentation of the real estate, which defendants are entitled to recover. If the factual representations of Mr. Fox had been true, particularly regarding irrigation, oil, haying and grazing possibilities, an average value of $115.00 per acre would have been proper.
“No. 19
“The court finds the defendants suffered damages because of the misrepresentations and are entitled to recover from the plaintiffs as follows:
“Damages from sale of personal property.
(See finding No. 17 above).......................... $26,640.00
“Damages from sale of real estate.
(See finding No. 18)................................. $96,000.00
“Damages for 377 acres of milo. (See
finding No. 15) ..................................... $12,440.00
“Credits due defendants from plaintiffs,
agreed upon from the outset:
“Accrued interest on Metropolitan mortgage from 2-1-68 to 6-3-68, paid by defendants
(See finding No. 16)................................. $2,311.20
“Interest due Tri-County Credit Union on $8,500.00 note of plaintiffs added to Credits: defendants’ note on 6-3-68.
(See finding No. 16)................................. $436.76
“Pratt Cafe food stock, 6-3-68. (See
Finding No. 16) .................................... 396.89
“Pratt Motel vending machines equity,
6-3-68. (See finding No. 16).......................... 544.93
“Defendants’ three notes to Grainfield and Grinnell banks and Tri-County assuming indebtedness of plaintiffs of $37,500.00 in part payment of the personal property sales contract, 6-3-68. (See finding No. 7)............... 37,500.00
“Defendants’ two notes to plaintiffs of $1,500.00 and $11,310.00 in part payment of the real estate and personal property sales contract, 6-3-68. (See finding No. 7)....................................... 12,810.00
“Cancellation herewith of above two notes and security agreement — subtract...................... 12,810.00
“Total Actual Damages: .................................$176,269.78
“The court further finds the misrepresentations by plaintiffs were substantial and were knowingly and intentionally made and that the defendants should recover in addition exemplary damages in the sum of $5,000.00.”
The court went on to compute amounts due to the Foxes, to offset the damages and strike a balance due them, and to provide a revised schedule of payments which included tihe privilege of paying directly to the Downards (the fee owners who had intervened to foreclose their contract with the Foxes). No one complains about this exercise of the court’s equity power to reform the contracts under litigation.
Neither do the Foxes contend that the court lacked power to excise the mineral rights reservation clause from their contract with the Wilsons. Their challenge to this portion of the judgment goes only to the underlying finding of fraud, as do most of their other twenty allegations of error.
The basic contention of the Foxes on this appeal is that there was insufficient evidence of fraud to meet the oft-stated standard that “One who asserts fraud must prove it by a preponderance of the evidence; such evidence should be clear, convincing and satisfactory. . . (Sipes v. Crum, 204 Kan. 591, 464 P. 2d 1, Syl. ¶ 3. See also, In re Estate of Latshaw, 194 Kan. 747, 402 P. 2d 323; Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 399 P. 2d 822; Jones v. Coate, 180 Kan. 597, 306 P. 2d 148.)
Their position is stated in essence in their brief where they say “The evidence of an alleged intent to deceive is not clear, convincing or satisfactory. Far more plausible explanations were presented to counter each allegation.”
The meaning of such phrases as “clear and convincing proof” or “by evidence that is clear, convincing and satisfactory” has plagued this and other courts for many years. The phrases are used largely in cases involving fraud, oral contracts with decedents, actions to reform or set aside deeds or prove lost deeds, and the like, where for one reason or another it is felt that a “mere preponderance” of the evidence is insufficient. We need not engage in an extensive review of the authorities, for that was recently done and the matter was thoroughly threshed out in the two opinions in In re Estate of Shirk, 194 Kan. 424, 399 P. 2d 850, and 194 Kan. 671, 401 P. 2d 279.
In the first opinion we noted that “The term ‘clear and convincing evidence’ is too [e]lusive to be the subject of an exact definition.” (Id., 194 Kan. at 429.) We did, however, quote with approval a federal jury instruction that:
“. . . by that term is meant the witnesses to a fact must be found to be credible and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order and that the testimony be clear, direct and weighty and convincing, so as to enable you to come to a clear conviction without hesitancy of the truth of the precise facts in issue.” (Id., at 430.)
That definition was in line with our earlier approval of a Pennsylvania definition in Jackman v. Development Co., 106 Kan. 59, 64, 187 Pac. 258:
“It is meant that witnesses shall be found to be credible — that the facts to which they testify are distinctly remembered — that details are narrated exactly and in due order — and that their statements are true. . . .”
In the first Shirk opinion the standard above formulated was applied to evidence of an alleged oral contract to devise and bequeath a share in a decedent’s estate, and the evidence was found wanting. In denying a motion for rehearing the court expanded upon both the burden of proof and this court’s role on appellate review. First:
“It was not the intention of this court to depart from the long established rule that it would not weigh evidence on appeal. We have not done so. In reviewing the record for the purpose of determining whether there is clear and convincing evidence to support the judgment this court does not weigh the evidence. It considers only the evidence of the successful party for the purpose of determining whether it is substantial and of that quality required to be clear and convincing.” (In re Estate of Shirk, supra, 194 Kan. 672. Emphasis added.)
Noting the confusion arising from cases stating that it is the trial court that must be satisfied that the evidence is clear and convincing, the court went on to say:
“Perhaps the rule is more completely stated in those cases which hold that it will be presumed in the absence of a showing to the contrary that the trial court applied the proper test as to clear and convincing evidence. (Kull v. Pearl, 147 Kan. 329, 337, 76 P. 2d 790; In re Estate of Sheets, 175 Kan. 741, 267 P. 2d 962.) If a review of the record discloses no evidence of a clear and convincing quality there is a showing contrary to the presumption.” (Ibid. Emphasis added.)
Finally, on this subject, the court reviewed the Jackman definition quoted above and the holding in that case, and concluded:
“It is 'clear from the Jackman case that the appellate court examines the record and must be satisfied that the findings of the trial court were supported by a quantum of competent and substantial testimony of the quality required by the standard of clear, convincing or satisfactory proof.” (Id., 194 Kan. at 673. Second italics added.)
Putting it all together we find: (1) The burden of proving fraud is by a preponderance of the evidence; this is a matter of quantum. (2) The character of the evidence required is “clear and convincing;” this is a matter of quality. (3) By “dear and convincing evidence” it is meant ihat the witnesses shall be found to be credible, and that the facts to which they testify are narrated exactly and in due order. (4) The trial court is presumed to have applied the correct standard in the absence of a showing to the contrary. (5) Such a “showing to the contrary” is made if the record discloses no evidence which could be characterized as clear and convincing; if there is substantial competent evidence of the requisite quality to uphold the findings they will be sustained. (6) In making such a determination this court considers only the evidence of the successful party.
Applying these principles to the record here we have no hesitancy in finding that the evidence met the “clear and convincing” standard. It is unnecessary to burden this opinion beyond the facts recited and those found by the trial court. There was ample evidence which, if believed, would support each finding of fraud; the Wilsons and their witnesses testified at length and in scrupulous detail. Contrary to the repeated urging of the Foxes, the fact that they had explanations of some of the transactions which would be equally plausible if believed is immaterial to our review. The conviction of the trial court may be gleaned from his findings that “The extent of the misrepresentations is shocking” and that, as to the nonexistent irrigation prospects, “Fox blinded his mind — as he did on other things — to these facts.” The trial court’s satisfaction with the proof is further demonstrated by his allowance of exemplary damages.
This standard of review, of course, cuts both ways. The trial court, in its finding No. 2, made an express “negative” finding that the Foxes had not sustained their burden of proof as to alleged misrepresentations regarding the motel. In order to upset this finding we would have to find “arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the trial judge.” (Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P. 2d 39, Syl. ¶ 4.) Suffice it to say we cannot make any such finding from this record.
What has been said largely disposes of this appeal, but the Foxes do raise some subsidiary questions which deserve comment.
First, they would have all of their representations characterized as mere “puffing,” being but opinions of value and not statements of fact. This the trial court refused to do, and we agree. The quantity of hay represented by $6,600 at $20 per ton is a fact, and not a question on which reasonable men may differ. The same may be said of the model-year and operability of a piece of machinery, the distance to the nearest oil well, and the number of bales of hay cut in a particular year — to name but a few. There was a certain amount of puffing, to be sine, but it was so interlaced with representations of hard facts as to go far beyond the permissible bounds of bona fide salesmanship, where those facts proved untrue.
Second, they claim the Wilsons had no right to rely on their representations, but were bound to inspect the property before they purchased. As long ago as 1894 this court observed:
“The trend of the decisions of the courts of this and other states is towards the just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit, that the party to whom the representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts.” (Speed v. Hollingsworth, 54 Kan. 436, 440, 38 Pac. 496.)
As if anticipating the Foxes’ present argument that the Wilsons’ misfortune is due solely to their naiveté, the court went on to say (Id., Syl. ¶ 2):
“It matters not that . . . the grantee, who has been misled, may be said in some loose sense to have been negligent, for it is not just that a man who has deceived another should be permitted to say to him, ‘You ought not to have believed or trusted me,’ or ‘You were yourself guilty of negligence.’ ”
We have followed this at least as recently as 1942 (Martin v. Hughes, 156 Kan. 175, 131 P. 2d 682). We do not at this juncture care to retreat from that position, or to reestablish the doctrine of caveat emptor in cases such as this. See Williams v. Hanna, 105 Kan. 540, 185 Pac. 17.
Third, they contend that the allowance of damages for the plowed under milo crop was improper, on the theory that the loss was already reflected in the award for the reduced value of the land. The trial court, in its finding No. 15, singled the milo acreage out from other misrepresentations- of anticipated income and allowed separate damages; it did not award separate damages for the $15,000 anticipated pasture rent or for the less-than-expected ASC payments. The basis for this treatment, we presume, was that the diversion of the milo acreage to wheat was a onetime thing; in future years the full milo allotment would be available. In contrast, the other items would be continuing, decreasing the permanent income-producing capacity of the ranch and thus depressing its overall market value. We think the distinction was valid, and that the milo award had the effect of compensating for an immediate out-of-pocket loss which was distinct from any effect it might have had on the market value of the ranch.
Fourth, they contend that the finding of the actual value of both the real and personal property was based on incompetent testimony. As to the personal property, Wilson went over it item by item and fixed values, in a few cases relying on inquiries he had made of dealers. The objections made to this testimony were based largely on relevancy, but value was clearly relevant to the issue of damages. There could be no serious contention that he, as the owner, was incompetent to express an opinion as to the value of his property. (Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162; Lawson v. Southern Fire Ins. Co., 137 Kan. 591, 21 P. 2d 387.)
A neighbor, Jim Losey, whose testimony the Foxes object to most strenuously, characterized the machinery as “a whole pile of junk,” and fixed its maximum value at $15,000. The trial court, while remarking on this testimony, did not adopt that value in its findings. Its admission was not prejudicial error.
As to the real estate, Wilson testified to a value of $80 to $85 per acre. Downard, the fee owner, fixed the value at $85 to $95 per acre. Losey, who had sold the ranch to Downard and whose father had owned it before him, valued it at $75 per acre. Wilson as owner and the others as former owners and neighbors were all thoroughly familiar with the ranch and were competent to testify as to its value. (State Highway Commission v. Lee, 207 Kan. 284, 485 P. 2d 310; Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P. 2d 28; Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235; Hodges v. State Highway Commission, 198 Kan. 80, 422 P. 2d 570, and cases cited therein.) The court fixed the value at $90 per acre. While the Foxes’ witnesses fixed higher values, the court’s determination of actual value was well within the testimony.
On the other side of their argument on damages, the Foxes contend there is no evidence showing what the value of the ranch would have been if all their representations had been true. This, they say, deprived them of the “benefit of the bargain,” citing Walker v. Fleming Motor Co., 195 Kan. 328, 404 P. 2d 929; Perry v. Schoonover Motors, 189 Kan. 608, 371 P. 2d 152; and Epp v. Hinton, 91 Kan. 513, 138 Pac. 576.
Each of those cases stands for the proposition that in a damage action by a purchaser for fraud inducing the purchase, the measure of damages is the difference between the actual value of the property at the time of the sale and the value it would have had if the representations had been true. The Foxes say that, even assuming “actual value” was proved, there was no proof of the other element of the equation, “represented value.”
In examining the proposition we start with the fact that it is not the Wilsons who are claiming the “benefit of the bargain,” i. e., they are not claiming the land for which they agreed to pay $115 per acre would have been worth more than that if it had been as represented. That kind of a claim clearly would have required extrinsic evidence of value, and the agreed price would doubtless have been utilized by the Foxes to combat such evidence as indicating a lesser agreed value. In that situation, the “benefit of the bargain” rule comes into its true role, which is to carry out the concept that “A defrauded vendee is entitled to compensation for the contract he thought he was making and any advantage he would have obtained thereunder.” (Walker v. Fleming Motor Co., supra, 195 Kan. at 333.) In Epp v. Hinton, supra, we noted that in this state the “benefit of the bargain” rule obtains instead of the “out-of-pocket” rule, saying (p. 516):
“. . . The latter rule merely protects the person deceived from suffering actual loss; the former, which is the settled rule in this jurisdiction, gives him [the person deceived] the benefit of his bargain, and in effect forces the wrongdoer to make good his representations.” (Emphasis added.)
In Trapp v. Refining Co., 114 Kan. 618, 220 Pac. 249, a defrauded purchaser of worthless corporate stock sued for and recovered the price paid. It was contended there, as here, that there had been no showing of what the property (stock) would have been worth if as represented. The court held (p. 619):
“. . . The rule invoked (that of Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496) is for the benefit of the injured party and the wrongdoer cannot complain because of his being satisfied with the mere return of his money, which is one of the remedies open to him. . . . Moreover the price paid for an article is some evidence of its value for the purpose of assessing damages in such a case as the present.” (Emphasis added.)
The latter proposition was approved almost verbatim in Perry v. Schoonover Motors, supra, Syl. ¶ 4. See also, Annotation 13 A. L. R. 3rd 881, 889, “Damages — Fraudulent Representation, § 3 (b), Proof of represented value; purchase price as evidence.”
In this case the trial court, in its finding No. 18, concluded that “If the factual representations of Mr. Fox had been true, particularly regarding irrigation, oil, haying and grazing possibilities, an average value of $115.00 per acre would have been proper.” As a basis for this finding it had before it the $115 per acre price agreed upon by Fox and Wilson, a willing seller and a willing buyer — both presumably acting on the assumption that the ranch was as Fox represented it. That, as we have said, was “some evidence of its value for the purpose of assessing damages.” (Perry v. Schoonover Motors, supra, Syl. ¶ 4; Trapp v. Refining Co., supra.) Whether a fraudulent vendor may turn the rule into one for his benefit we are not called upon to decide; the Foxes made no attempt to show that the ranch, had it been as represented, would have been worth less than $115 per acre. In the absence of other evidence by either party we think the sales price was a sufficient basis for the court’s finding of represented value.
Finally, the Foxes contend that exemplary damages were improperly awarded. Such damages, they say, “are not recoverable in absence of actual damages,” citing Reeder v. Guaranteed Foods, Inc., supra. What has been said above about actual damages adequately disposes of this argument. On the requisite element of deliberate intent to deceive, the trial court may well have been influenced by testimony of several disinterested witnesses as to Fox’s semi-public statements that he had sold the ranch “real good;” that he “had it contracted to where he didn’t think the man could make it;” and that "lie would be back in August.” These and several other statements to the same effect were made on various occasions after the June 3 contract was signed and before August 1. They are readily susceptible to an inference that Fox knew sill along that he had put the Wilsons into an impossible financial bind, and that he anticipated from the beginning ending up with both the ranch and the motel. In any event, we cannot say the relatively modest award of exemplary damages was not justified by the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This was an action in forcible detainer. (K. S. A. 1972 Supp. 61-2301 et seq.) At issue is the right to possession of the premises located at 6408 Larson Lane, Shawnee, Kansas, during the eighteen-month period of redemption resulting from the foreclosure of a first mortgage on the property, owned by the Prudential Insurance Company of America, a corporation.
Upon consideration of the admissions and stipulations of record; the evidence introduced by the appellees, and from documents marked as exhibits and submitted by the parties, the district court found and determined the defendants Carl L. Pittman and Carolyn L. Pittman, husband and wife, were entitled to the use and occupancy of the premises throughout the period of redemption, and that monthly payments of $100 theretofore made by them to the clerk of the district court during the pendency of the action, as hereafter detailed, should be returned to them. The plaintiff timely perfected this appeal.
A summary of the facts and relevant transactions leading up to the commencement of the action out of which this appeal arises, are summarized and quoted as follows:
On March 27, 1951, one Charles R. Pruitt and his wife Betty, the owners of the fee simple title of the property in question, executed their promissory note in the principal sum of $9,850 in favor of Mission State Bank, and also executed a first mortgage in favor of the bank to secure payment of the note. The mortgage was a Veterans Administration type mortgage and was assigned by the Bank to Prudential, and later foreclosed on January 21, 1970, as hereafter noted.
On October 8, 1953, the Pruitts conveyed the property by warranty deed to Lester P. Schick and his wife Harriette, as joint tenants. However, the conveyance to the Schicks was made expressly subject to Prudential’s first mortgage with no agreement by the Shicks to assume or pay the same.
Some nine years later, and on October 26, 1962, the Schicks executed a contract for deed to the property in question to Earl L. and Norma J. Pittman, husband and wife (the first Pittmans), as purchasers. As a part of the pinchase price of $10,500, the Pittmans agreed to assume and pay the Prudential first mortgage then in the principal amount of $6,587.73 by making payment of $67.85 each month commencing November 1, 1962, covering principal, interest and taxes, and in addition, to pay the Schicks $22 each succeeding month on the contract. The Schick deed was to be escrowed, and was to be delivered to the first Pittmans or their assigns, when the contract was paid. Among other things, the contract provided that upon default by the Pittmans of payments under the contract, their tenancy of the real estate should become a month to monh tenancy at the rate of $100 per month, at the option of the seller.
On February 27, 1968, the first Pittmans assigned all of their rights and obligations in the contract for deed to Carl L. Pittman, and Carolyn, his wife (the second Pittmans), who took possession of the property. Upon default by the second Pittsmans of the first mortgage payment due on April 1, 1969 — after approximately seven years of payments by both Pittmans — Prudential brought suit for foreclosure against the Pruitts, the Schicks, and the Pittmans. The second Pittmans were substituted by both parties to the contract for deed as the equitable owners and presumably were bound to pay the mortgage and did assume and agree to pay the same. Payments by the first and second Pittmans during their occupancy reduced the first mortgage balance by $2,057.92, and there was due on the first mortgage at the time of foreclosure the sum of $4,648.96. Judgment was entered in the foreclosure action on January 21, 1970, for $4,648.96, foreclosing the interests of all defendants in the real estate, and adjudging that Prudential’s lien was a first, valid and prior lien upon the premises. Although Shick (whose wife was then deceased) filed an answer pro se in the foreclosure action, he did not seek affirmative relief by cross-claiming under the contract for deed against either the first or second Pittmans pursuant to K. S. A. 60-213 (g) to foreclose or forfeit the equitable rights they acquired under the contract. The district court found that Shick abandoned all his rights and interest in the contract for deed in the foreclosure action.
Except for Shields answer, which is not contained in the record, none of the defendants pleaded or appeared on January 21, 1970, and a default foreclosure judgment was entered. The district court made specific findings of fact as to the previous transactions affecting an interest in the property, and the journal entry provided, in pertinent part:
“It is further by the court,
“Considered, ordered, adjudged and decreed, That the defendants Charles R. Pruitt and Betty Jean Pruitt, husband and wife; the defendant, Lester P. Schick; the defendants Earl L. Pittman and Norma J. Pittman, husband and wife; the defendants Carl L. Pittman and Carolyn L. Pittman, husband and wife, and each and all of them be and they are hereby forever barred from any right, title, estate, equity or lien in and to said premises, or any part thereof, after such sale, except the right of redemption, as provided by lato, which is hereby fixed by the court at eighteen (18) months from the date of Sheriff’s Sale as herein ordered, and the purchaser, after the expiration of said period of redemption, be put into possession of said premises by a Writ of Assistance, or other proper process of this court, and that upon the expiration of the period of redemption herein found, the Sheriff of Johnson County, Kansas, or successor in office, make, execute and deliver to the purchaser at said Sheriff’s Sale, or assigns, a good and sufficient deed for the premises hereinbefore described.” (Emphasis supplied.)
No appeal was taken from that judgment, nor was it modified in any manner.
Following the judgment of foreclosure, and on February 16, 1970, Schick purportedly quitclaimed any interest he had in the property to one Isaac Pine (father of the appellant), subject to the first mortgage and its foreclosure. On March 12, 1970, Shick also assigned and transferred all his right, title and interest in and to the contract for deed to Isaac Pine for the sum of $350, and also assigned to Isaac Pine excess proceeds, if any, derived from the foreclosure sale of the property by Prudential.
On May 13, 1970, Isaac Pine and his wife transferred their interest in the property by deed and assignment of the contract for deed to the appellant, subject to the first mortgage and its foreclosure.
The first Pittmans occupied and possessed the premises continuously since 1962, and until they assigned tire contract for deed to the second Pittmans on February 27, 1968. The second Pittmans occupied and possessed the premises from the latter date until the foreclosure judgment was rendered, and thereafter occupied and possessed the property until the right of redemption expired on September 13, 1971. Thus, the only question presented is who is entitled to the rents and profits from June 1, 1970 — the date this action was filed — until September 13, 1971, the date redemption expired? The only defendants to be affected by the judgment are the second Pittmans, and they are hereafter referred to as the appellees.
On June 1, 1970, the appellant filed the forcible detainer action in the magistrate court of Johnson County, and alleged that the appellees defaulted on their payments under the contract for deed on October 1, 1969; that he notified them he intended to exercise his option under the contract for deed and thereafter treat them as tenants from month to month at a rental of $100 per month during the period of redemption; that he served written notice notifying them that their failure to pay the $100 rental for the month of June, 1970, terminated the tenancy for nonpayment of rent, and further that an action was about to be brought to recover possession of the property. The prayer was for immediate restitution of the premises, for judgment of $100 for rent, and his costs.
The appellees filed their answer and a counterclaim. In addition to a general denial, they alleged that in the foreclosure action the appellants predecessor in title, Lester P. Schick, was forever barred from any right, title, estate, equity, or lien in or to the property in question prior to his quitclaim deed to appellant; that in the same action the appellees were granted the right of redemption for eighteen months, and, therefore, have an interest in said real estate paramount to that of appellant; that if appellant’s predecessor in interest had any rights against the appellees by reason of the contract for deed, it was mandatory that he affirmatively assert such rights in the foreclosure action, and that the said predecessor in interest faded to assert such rights in such action, and as a result Schick abandoned all claims to the property in such proceeding, and thereafter had no interest whatsoever to convey to the appellant.
The counterclaim sought to recover punitive damages from appellant by reason of his false and malicious institution of the forcible detainer action against the appellees. That issue was not decided by the district court, and it is not here for appellate review. The appellees having raised the issue of their interest in the real estate, the cause was transferred to the district court for trial.
At a pretrial conference, the district court ordered the appellees to pay to the clerk of the district corut the sum of $100 on August 15, 1970, and a like sum on the 15th day of each month until determination of the action. All money paid was to be held by the clerk for the benefit of the appellant in the event it was determined the appellees had no interest in the real estate, and that the appellant was entitled to either rentals or damages from the appellees. The court also ordered that if it was determined the appellant had no right of possession, or claim to rentals or profits accruing, all sums paid by the appellees should be returned to them.
Upon final determination of the action on February 23, 1971, the district court denied the appellant recovery and entered judgment that the appellees were entitled to the use and occupancy of the premises throughout the period of redemption and that all $100 monthly payments made to the clerk of the court be returned to them.
While the appellant made nine statements of points on appeal, it is clear from the discussion in his brief he has waived points two through nine, and has elected to stand on point one, that “[t]he decision of the trial court was contrary to the laws of the state of Kansas as set forth in K. S. A. 60-2414 and K. S. A. 60-2416.” In this connection, the appellant states, “[i]t is the plaintiffs contention that pursuant to K. S. A. 60-2414 that the defendant owner does have the exclusive right of redemption . .
K. S. A. 60-2414 (since amended, K. S. A. 1972 Supp. 60-2414) reads in pertinent part:
“(a) Right of redemption by defendant owner; junior lienholders. Except as otherwise provided by law, the defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs and taxes, at any time within twelve (12) months from the day of sale, and within six (6) months thereafter for the amount paid by the then holder of the certificate of purchase together with interest costs and taxes to the date of redemption, and shall in the meantime be entitled to the possession of the property; but where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six (6) months from the date of sale . .
“(1) 'Holder of legal title. The holder of the legal title at the time of issuance of execution or order of sale shall have the same right of redemption upon the same terms and conditions as the defendant in execution, and also shall be entitled to the possession of the property the same as the defendant in execution.”
It should here be noted, that Pine, as successor in interest, stands in Schick’s shoes. He can assert no greater interest in the property than that which was conveyed to him in the chain of title from Schick to Isaac Pine, and finally to him.
We are of the opinion this case can be disposed of by answering the following questions: (1) .did the appellant have a right of redemption as a lien creditor having been assigned Schick’s right under the contract for deed; (2) did the appellees have a right of redemption to the premises, and (3) as between the appellant and the appellees, who had the primary right of redemption so as to be entitled to possession of the premises during the eighteen months period of redemption.
Turning to the first question, the record clearly shows that prior to the foreclosure of the first mortgage, there were only two encumbrances on the property — Prudential’s first mortgage and Schick’s equitable rights under the contract for deed. The equitable rights of Prudential were asserted and were foreclosed. Schick’s equitable rights were not. The district court had jurisdiction of all the parties and of the subject matter, and while Schick filed an answer pro se, he failed to affirmatively assert his right to foreclose or forfeit the appellees’ rights under the contract for deed. Schick’s failure to assert his rights in that proceeding constituted a waiver of any rights he may have had as a lien creditor in the property, and under the circumstances, as a junior equitable mortgagee, his lien was waived and he had no right of redemption thereby. (See comment, Junior Lien Holders and Mortgage Foreclosures, 10 JRK 412, 413 [1942].) In Federal Farm Mortgage Corp. v. Crane, 153 Kan. 114, 109 P. 2d 82, it was held:
“In a foreclosure proceeding the holder of a junior mortgage on the same land was joined as a defendant. The junior mortgagee entered a general appearance in such foreclosure action but filed no answer and asked for no affirmative relief. In the circumstances stated it is held that the lien of the junior mortgagee was waived and that he has no right of redemption under the statute.”
With respect to the second question whether the appellees had a right of redemption of the premises, we answer in the affirmative. As indicated, the appellees were defendant owners in the foreclosure action as assignees to the contract for deed executed by the Schicks to the first Pittmans. As contract purchasers, the appellees were the equitable owners of the premises and had an interest therein which was substantial so as to secure to them the right of redemption as guaranteed by K. S. A. 60-2414 (a). Moreover, the journal entry of judgment in the foreclosure action expressly reserved the right of redemption to the appellees. That judgment was never appealed or challenged and any inquiry into its merits now would constitute an infringement of the well-recognized principle of res judicata. In Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118, it was said:
“It is contended, however, that the right to redeem is statutory; that none except those expressly named in the statute may avail themselves of its benefits, and that under our statute only an owner holding the legal title to the land may redeem. This claim is based mainly upon the following provisions of the act:
“ 'The holder of the legal title at the time of issuance of execution or order of sale shall have the same right of redemption upon the same terms and conditions as the defendant in execution, and also shall be entitled to the possession of the property tire same as the defendant in execution as hereinbefore provided.’ (Gen. Stat. 1901, § 1915.)
“While the holder of the legal title is expressly mentioned in this section it is not provided that he shall have the exclusive right of redemption. That such was not the intention of the legislature is manifest from the language of the following section, which mentions the assigns of the defendant in execution or order of sale in a class distinct from the holders of the legal title and places them upon an equality of right with the holders of the legal title . . .
“. . . The theory of the act relating to redemption is that the owner of a substantial interest, whether or not he is a defendant, may redeem from an execution or mortgage-foreclosure sale, and the like protection is also afforded to creditors, mortgagees, and other lien-holders. The owner of an interest, although he may have no formal conveyance, is more entitled to exercise the right than one holding a naked legal title. The interest and right held by McPherson were certainly paramount to those of Mercer, who took his deed with notice of McPhersons rights.” (1. c. 619, 620.) (Emphasis supplied.)
See, also, National Bank of America v. Barritt, 136 Kan. 870, 19 P. 2d 552.
Shick held a warranty deed to the property and was made a party defendant to the original foreclosure action, thus he secured the right of redemption to the premises as the record title holder pursuant to K. S. A. 60-2414 (l) and a defendant owner pursuant to K. S. A. 60-2414 (a). The appellant, as Schick’s successor in interest, was also entitled to redeem the property as a defendant owner. It follows that the appellant enjoyed the statutory right of redemption either as the holder of legal title or as a defendant owner; however, that right was not exclusive, and it did not arise by virtue of the contract for deed to the Pittmans, or the unrecorded second mortgage referred to in that agreement.
With respect to the third question, this court is of the opinion that, as between the appellant and the appellees, the latter had the paramount right of redemption and were entitled to possession of the property throughout the eighteen-month redemption period. The first Pittmans, and later the appellees, had exclusive possession of, and exercised dominion over, the property for seven years — from November 1, 1962, the date the appellant’s predecessor in interest expressly surrendered possession. The combined payments of the first Pittmans and the appellees reduced the principal of the first mortgage by $2,057.92, and accordingly increased their equitable ownership in the property by that amount, so as to sustain the district court’s finding of their substantial interest in the property. (Mercer v. McPherson, supra.)
On the other hand, the appellant merely held the legal title to the premises for which his father paid only $350. The appellant was never in possession of the premises and now attempts to assert rights under the contract for deed by serving notice on the appellees that they were tenants at will and demanded rental payments of $100 per month. The appellant had no right of possession arising by virtue of the contract for deed — his status as a lien creditor having been barred by the original foreclosure. Finally, it should be noted the appellant’s interest is inferior to that of the appellees— they having assumed the mortgage held by Prudential — he having taken title subject to that mortgage.
Once the appellant’s status as a lien creditor was barred by the foreclosure, all the equities are in support of a conclusion the appellees had the primary right of redemption and were entitled to the undisturbed possession of the premises during the eighteen-month period of redemption.
In conclusion, we note the appellant’s conduct is analogous to that of an “equiteer” as defined in American Home Life Ins. Co. v. Heide, 199 Kan. 652, 656, 433 P. 2d 454.
The judgment of the district court is affirmed with directions to instruct the clerk of the district court to return to appellees all payments made by them pursuant to the pretrial order.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the claimant in a workmen’s compensation case.
Basically two questions are presented: (a) Whether there is any substantial, competent evidence to support the findings of the trial court concerning the nature and extent of the claimant’s disability, and (b) whether a payment of $1,100 by the respondent’s insurance carrier to the claimant was properly credited against the amount of the award.
The claimant suffered an accidental injury in the course of and arising out of his employment with the respondent, Goodyear Tire and Rubber Company, on September 19, 1968. He was seen by Dr. Cavanaugh, the plant physician, and was subsequently referred to Dr. Robert R. Payne an orthopedic surgeon in Topeka, Kansas. Dr. Payne first saw the claimant in October 1968, and treated him until July of the following year for an injury to his elbow. On July 1, 1969, Dr. Payne released the claimant with a “10% permanent impairment of the upper left extremity due to the elbow.”
In July 1970, the claimant was examined by Dr. Alexander Lichtor, an orthopedic surgeon. The results of Dr. Lichtor s examination were submitted in a deposition taken on behalf of the claimant. Dr. Lichtor testified that the claimant’s condition was a result of the accidental injury he suffered in September 1968, and the doctor found the claimant suffered a general bodily disability therefrom of 15%. His diagnosis of the claimants condition was that of a “strain to the neck, left elbow and shoulder.” Dr. Lichtor indicated the claimants disability rating was based on the subjective complaints of the claimant. Also, the doctor indicated that while he had examined the claimant on July 17, 1970, his report was not prepared until January 18, 1971. He stated that his report was based on his file but he admitted that his file notes did not contain a disability rating. When asked to rate the claimant’s elbow separately, disregarding his other alleged complaints, Dr. Lichtor indicated that he felt he would rate just the elbow as “ten to fifteen per cent”.
The claimant was examined on behalf of the appellees by Dr. Joseph Gendel, an orthopedic surgeon in Topeka, Kansas. Dr. Gendel examined the claimant in March 1971. He found nothing wrong with the claimant’s shoulder, noted no complaints regarding his neck, and indicated that the claimant may have a “10 to 15% of partial permanent loss of use of the left upper arm as a result of a sprained elbow.”
At the time of his injury, the claimant was working at a job which required him to load tires onto a rack. This involved lifting rather heavy weights and swinging or throwing them to a considerable height. Prior to this job the claimant had worked at the Goodyear Plant for nearly four years, but had been engaged in less strenuous jobs. Immediately prior to his job at the time of the accident he worked at a desk job for Goodyear. Prior to his employment with Goodyear he had been an insurance salesman, and after his termination at Goodyear in late 1970 he found employment as a security salesman for the Columbian Securities Company.
The original hearing was held before examiner Thomas E. Wright on August 13, 1970, and an award was rendered by examiner Wilburn Dillon on July 23, 1971. Among the issues before the examiner at the time the case was submitted were the nature and extent of the claimant’s disability and the amount of compensation to which he was entitled, if any. Examiner Dillon reviewed the evidence, including the claimant’s testimony and the reports and depositions of Drs. Payne, Lichtor and Gendel, and found that the claimant, after suffering a period of temporary total disability, was left with a 15% permanent partial loss of use of the left forearm. With respect to the amount of compensation to which the claimant was entitled, the examiner found:
“There is due and owing the claimant 15 weeks o£ temporary total compensation of $735.00 and 29.25 weeks permanent partial disability of the left arm, all at the rate of $49.00 per week or a total of $2168.25 less the compensation heretofore paid by respondent and its insurance carrier in the amount of $735.00, leaving the balance of $1433.25 which is due and owing in one lump sum.”
With respect to the amount of compensation which had already been paid to the claimant, the record indicates that in addition to various temporary total payments which were made to the claimant, he received a payment of $1,100 from the respondent and its insurance carrier on August 4, 1969. The examiner noted that he was not certain as to the precise nature of this payment. There is no question that the payment of $1,100 was made to the claimant and that it was made by the respondent’s insurance carrier. This matter has been stipulated to by claimant’s counsel. The record further indicates that the subject payment was the result of an attempted settlement of the claimant’s claim. The payment, which was made by a draft dated August 4,1969, states on its face that the $1,100 was “in satisfaction of all claims 10% of arm.” The date of loss noted on the draft was September 19, 1968, which was the date of the claimant’s alleged injury.
In July 1971, the claimant requested a directors review of the examiner’s award pursuant to the provisions of K. S. A. 44-551, as amended. The review was granted, and on November 4, 1971, the director entered an order sustaining the examiner’s finding that the claimant suffered a 15% permanent partial loss of use to his arm as per the “schedule”, and further approved the amount of compensation awarded. The director modified the award, however, with respect to the amount of credit to be given the appellees herein for payments made prior to the date of the award. The examiner’s award, of course, allowed a credit in the amount of $735 for payments already made. The director ordered that the appellees herein be given an additional credit in the amount of $1,100 for the payment to the claimant of August 4, 1969.
The claimant appealed the director’s order to the Shawnee County District Court, citing as issues the nature and extent of the claimant’s disability, and the propriety of the $1,100 credit ordered by the director. On April 28, 1972, the district court simply adopted in full the findings and award of the workmen’s compensation director. Appeal has been duly perfected by the claimant from this order.
The claimant takes issue with the trial court’s finding that he suffered a scheduled injury to his left arm, i. e., a 15% loss of use thereof. It has been the claimant’s contention throughout that compensation should be based on a general bodily disability rating of 15%, as per his doctor’s report. (Citing Jackson v. Stevens Well Service, 208 Kan. 637, 493 P. 2d 264.)
On appeal of a workmen’s compensation case, the jurisdiction of the Supreme Court is limited to consideration of questions of law; whereas, regarding questions of fact, the record is reviewed to determine whether or not it contains substantial, competent evidence to support the district court’s finding, and in so doing, this court reviews and considers all evidence in the light most favorable to the prevailing party below. If the finding of the district court is supported by substantial, competent evidence, the finding is conclusive and will not be disturbed on appeal. (Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P. 2d 994; Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P. 2d 383; and authorities cited in these cases.)
In this case the examiner found the claimant sustained a compensable injury on September 19, 1968, resulting in temporary total disability of the claimant from January 1, 1969, to April 16, 1969, representing 15 weeks at the rate of $49 per week or the stun of $735. From September 19, 1968, to January 1, 1969, and again from April 16, 1969, forward, claimant was fully employed. The examiner further found that the claimant sustained a 15% permanent partial loss of use of the left arm for which he was entitled to compensation at the rate of $49 for the remaining 29.25 weeks in the amount of $1,433.25.
The Kansas Workmen’s Compensation Director in his order dated November 4, 1971, found regarding the nature and extent of the claimant’s compensable injury:
“The evidence would indicate that claimant’s initial complaints were in regard to his elbow and not to his neck or shoulder or back area. Claimant states that he did not tell Dr. Cavanaugh, the inital treating doctor, about his shoulder. He said it was bothering him but he didn’t connect it in any way with his elbow. He said that he did tell Dr. Payne about his shoulder.”
Dr. Lichtor s examination of the claimant took place ten months after the alleged injury. Dr. Lichtor noted some tenderness in the neck and shoulder area, and some arthritic changes in claimant’s back from X-rays taken. But the director found there was no indication in Dr. Licheor’s deposition that he linked the arthritic changes with the claimant’s work. The director further noted that Dr. Lichtox-’s findings in regard to the neck and shoulder area were based mainly on subjective complaints. As a result the director did not give credence to Dr. Lichtor’s x'eport giving the claimant an estimated 15% permanent partial disability to the body.
Dr. Gendel’s examination of the claimant in March 1971, showed claimant had difficxxlty with his elbow. There was nothing in Dr. Payne’s report to indicate that the claimant complained of any injxxry to his shoulder and neck area when he was under treatment from Dr. Payne. Dr. Gendel noted that the X-ray examination of the cervical spine was negative for fracture injmy and the X-ray examination did not show any disability to the shoulder or elbow. Dr. Gendel’s diagnosis was that of a mild traumatic arthritis of the left elbow and residuals of old strain and sprain. He also found mild osteo-arthritis of the cervical spine unrelated to the px'esent injury.
The question as to whether or not there is substantial, competent evidence in the record to support the trial court’s judgment, is a question of law as distingxxished from a question of fact. (Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 356 P. 2d 804.)
Our review of the record indicates thex'e was substantial, competent evidence to support the findings of the trial court.
Did the payment of $1,100 in a lump sxxm to the claimant by the respondent on August 4, 1969, constitute payment in settlement of claim and shoxxld it be credited against the px'esent award?
The evidence regarding the subject payment is brief and appears to be xmdisputed. Simply put, the claimant admits receiving payment in the amount of $1,100 on August 4, 1969, the same being made by a draft of Goodyear’s insurance carrier. This payment was acknowledged in addition to a number of other temporary total payments made. In drawing his award, the examiner took note of 15 temporary total payments in the amount of $49 each which totaled $735, but failed to take into account the payment of $1,100. There is no question but that $2,168.25 is the proper total figure for the award, and this figure had not been disputed. The examiner incorrectly concluded that of the total award only $735 had been paid, leaving a balance of $1,433.25. He failed to take into account the $1,100 payment which the claimant himself acknowledged.
The respondent and its insurance carrier raised the issue of a set-off for this amount before the director and submitted the canceled draft by which the payment was made.
The director noted that the date of loss noted on the draft was September 19, 1968, which was the date of the claimant’s alleged injury. The director went on to comment that apparently the payment was made in an attempt to compromise settlement of the matter. The director further commented that since the attempted compromise was not carried out within the procedural processes dictated by the pertinent statutes and regulations, the claimant was not prevented from pursuing his claim and requesting a hearing before the examiner. The director went on to hold that this did not mean that the payment which was made and acknowledged could not be deducted from the payments due under the award.
There is no ambiguity regarding the findings upon which the examiner’s original award was based.
The trial court adopted the director’s position and gave the respondent and its insurance carrier credit for the $1,100 payment.
It is the claimant’s position that the trial court erroneously applied the common law rules of restitution (Citing Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001.) The claimant argues that due to the lack of compliance with the rules of the Kansas Workmen’s Compensation Director, the respondent should be estopped from any set-off or credit. We faff to see merit in this position.
To disallow the respondent and its insurance carrier a credit for the subject payment would work an obvious inequity. It must be conceded the Kansas Workmen’s Compensation Laws are to be liberally construed so as to allow payment of compensation whenever reasonably possible. This is not to say, however, that an injured workman should be allowed to receive what would amount to double payment in a situation such as here.
Conceding the respondent and its insurance carrier acted in an improper manner when they attempted to effect a settlement with the claimant without following the procedures set forth in the workmen’s compensation statutes and regulations, this in no way prejudiced the claimant. In spite of the attempted settlement and in spite of the fact that the claimant received a substantial payment, he was not prevented from pursuing his claim in the manner provided by law. The allowance of a credit or set-off for the $1,100 payment would in no way affect the claimant’s statutory rights. To disallow the credit would be contrary to the principles of equity. Accordingly, the workmen’s compensation director was well within his rights when he sought to remedy the examiner’s oversight by crediting the respondent and its insurance carrier with the subject payment. Similarly, the district court did not err in reaching the same conclusion.
The judgment of the lower court is affirmed. | [
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