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The opinion of the court was delivered by
Horton, C. J.:
Action brought by A. J. Ayers ánd thirty-five others against theJioard of county commissioners of Trego county, James Kelley, county treasurer, and George Baker, sheriff, to restrain the collection of certain taxes. Temporary injunction granted. Trial at the November term, 1885, and judgment for defendants. To reverse this judgment, the plaintiffs bring the case to this court.
It is conceded by the plaintiffs and defendants that Gove county was a municipal township, first, of Ellis county, and then by ch. 100, Laws of 1881, it became attached to Trego county for judicial and municipal purposes. It seems to be admitted that the only semblance of legislative authority under which the taxes were levied, is found in § 31, chapter 72, Laws of 1873. The plaintiffs claim that if such power was ever conferred, it was taken away by chapter 70, Laws of 1883, which repealed §31, chapter 72, Laws of 1873, and was not again conferred until the enactment of chapter 8, Special Session Laws of 1884. Defendants claim that chapter 70, Laws of 1883, never became a law. They contend that the legislative action which produced that chapter was not in accordance with the rules established by the constitution of the state for making laws. They say that the bill which afterward appeared as chapter 70 of the Laws of 1883 originated in the senate as number 120; that its title on first, second, and third readings was wholly different from that which appears as chapter 70, Laws of 1883; that in the house on its various readings, its title was wholly different from that which it had in the senate at any of its readings, or that with which it was baptized when finally passed; that the governor, when approving the bill, called iu his executive clerk, and after labor decided to give “it a new name,” and with such new name sent it back to the senate, which was the last act done with reference to the bill. Further, the defendants contend that “31” was put in § 7, chapter 70, Laws of 1883, by inadvertence, when the figure 9 was really intended therefor; that “31” is no part of § 7, and does not give the plaintiffs any cause to say that they ought not to have beeu taxed in 1884.
An examination of the senate journal of the year 1883 shows that senate bill number 120 was read in the senate the third time on February 15, 1883, and, being subject to amendment and debate, Senator Motz moved to amend by striking therefrom all after the enacting clause, and introducing a new bill. The question being on the motion to amend, as made by Senator Motz, and a vote being had, the motion prevailed. Senator Sluss moved to amend by striking out “Sequoyah” wherever it appeared in the bill, and inserting in lieu thereof “ Finney,” so as to change the name of Sequoyah to that of Finney, which motion prevailed. The bill then having been read the third time, the question was, Shall the bill pass? The roll was called, with the following result: Yeas, 32; nays, 3. A constitutional majority having voted in favor of the passage of the bill, the bill was declared passed, and the title was, on motion of Senator Motz, amended to correspond with the provisions of the bill, and as amended agreed to. The bill is the same as that published in the Laws of 1883 as chapter 70, and the title agreed to was the same as now appeal’s in the published laws of 1883. (Senate Journal, 1883, 449-451.)
The house journal shows that on February 19th, 1883, senate bill number 120 was passed, a constitutional majority having voted in favor of the same, and the title being again read, was agreed to. (House Journal, 1883, 642.) We cannot say from the house journal that there was any attempt made to describe the title to the bill with exact precision, but as the title to the bill was all right when it passed the senate, and as the journal shows that the title to the bill was the last thing agreed to in the house, and as such title is not literally described in 'the house journal, and as the title appears in proper form in the enrolled statute, we must assume, notwithstanding the irregularities of the title as set forth in the house journal, that the bill Avas passed regularly and legally, and that the title, now appearing in the enrolled statute, was agreed to regularly and legally. ( Weyand, v. Stover, 35 Kas. 545; The State v. Francis, 26 id. 731.)
“If there is any room to doubt as to what the journals of the legislature shoAv, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.” (The State v. Francis, supra.)
Regarding the contention that “ 31,” in § 7, chapter 70, La.Avs of 1883, should read “ 9,” we need only reply, that we have not the right to change the statute where it is clear and free from ambiguity, by any judicial interpretation. We have no authority to interpolate “9” in the statute in the place of “31” Avhen “ 9 ” does not appear therein. As the statute is plain and unambiguous, there is no room left for construction. (In re Hinkle, 31 Kas. 712.) The repeal of § “ 31,” chapter 72, Laws of 1873, by the legislature of 1883, Avas the result, perhaps, of hasty legislation. At its special session the legislature at tempted to repair the wrong by reenacting substantially the provisions of that section. After its repeal and prior to its reenactment said § “31” conferred no power to levy the taxes complained of. The repealing act was in force March 1,1884. All municipal townships made by annexation of unorganized counties were then wholly wiped out. (In re Hinkle, supra.) The property of Gove county at that time was not liable to taxation for county purposes by Trego county.
The judgment of the district court will be reversed, and the cause will be remanded for further proceedings in accordance with the views hérein expressed.
All the Justices concurring. | [
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Malone, J.:
Mike’s Wrecker Service, Inc. (Mike’s), appeals the district court’s decision granting summary judgment in favor of Citifinancial Auto. Inc. (Citifinancial). Citifinancial had a lien on a 2004 Ford Mustang purchased and titled in Nevada. After local police discovered the Mustang abandoned without any tags in Manhattan, Kansas, they called Mike’s to tow and store the car. Pursuant to K.S.A. 8-1101 et seq., Mike’s claimed a hen on the Mustang for the value of its services. After requesting verification of the last registered owner and any lienholders from the Kansas Department of Revenue, Division of Vehicles (division of vehicles), and receiving a response of “no records found,” Mike’s published notice in the local newspaper of its intent to auction the Mustang. Citifinancial did not receive notice of the sale. Mike’s purchased the Mustang, valued between $11,000 and $12,000, at its own auction for a $500 bid.
Citifinancial sued Mike’s to recover the value of its hen in the amount of $8,641.52. The district court granted summary judgment in favor of Citifinancial and found that Mike’s failed to make a reasonable effort to notify Citifinancial of the sale. We agree with the district court that under the circumstances, especially given the value of the Mustang, Mike’s efforts to notify Citifinancial of the sale may not have been reasonably calculated to satisfy due process. However, we conclude the evidentiary record was insufficient for the district court to resolve the due process issue on summary judgment. Accordingly, we remand the case to the district court for further proceedings.
Factual and procedural background
On October 3, 2005, Citifinancial financed the purchase of a 2004 Ford Mustang for Tommie P. Canady of Las Vegas, Nevada. The State of Nevada issued a certificate of title for the Mustang and listed the owner .as Canady and the lienholder as Citifinancial.
On January 17, 2006, police officers found the Mustang in a parking lot in Manhattan, Kansas. The Mustang did not have any license plates, and the police issued a citation for a parking violation. The police then asked Mike’s to tow the Mustang away from the location. Mike’s towed the Mustang to its place of business and stored the vehicle there.
One week later, on January 24,2006, Mike’s submitted a request to the division of vehicles for verification of the last registered owner and any lienholders for the Mustang based on the vehicle identification number (VIN). The division of vehicles returned the request and indicated “no record found.”
On February 20, 2006, Mike’s published a notice in the Manhattan Mercury newspaper of its intent to publicly auction the Mustang the following day, February 21, 2006, at 8 a.m. to satisfy the storage and towing fees of $870. In addition, the printing fees for publishing the notice were $23.90. Because Mike’s did not know the identity of the owner or know of any lienholders, Mike’s did not mail notice of the sale to Canady or Citifinancial.
On February 21, 2006, Mike’s purchased the Mustang at its own auctior. for a $500 bid, and Mike’s submitted a possessory lien affidavit to the division of vehicles. However, Mike’s did not file the required documents with the Riley County clerk pursuant to K.S.A. 8-1107 until after Citifinancial filed its lawsuit. On March 9, 2006, Mike’s submitted an application with the division of vehicles to have the car title issued in its name, and on that same date, the division of vehicles issued a certificate of title for the Mustang listing Mike’s as the owner.
On April 1, 2006, Mike’s sold the Mustang to Aaron Monihen, and Monihen granted KSU Federal Credit Union a security interest in the Mustang pursuant to a security agreement. The record does not reflect the sale price of the Mustang, but the parties later stipulated that the value of the Mustang was $li,000 to $12,000. At the time of the sale, Monihen had no knowledge of the existence of Citifinancial’s hen on the Mustang.
Citifinancial later learned about the auction and sale to Monihen by conducting a CARFAX title search on the Mustang. On June 21,2007, Citifinancial filed a petition with the district court naming Mike’s, KSU Federal Credit Union, and Monihen as defendants. In the petition, Citifinancial alleged conversion of its security interest against Mike’s and sought to recover the value of its hen in the amount of $8,641.52 plus interest. Citifinancial also asserted a claim against KSU Federal Credit Union and Monihen for in rem foreclosure of its security interest- in the Mustang.
On January 18, 2008, Citifinancial filed a motion for summary judgment. In the motion, Citifinancial argued that Mike’s did not strictly comply with K.S.A. 8-1101 et seq., and Mike’s failed to make an adequate attempt to notify Citifinancial of the sale in order to satisfy due process. Citifinancial also alleged that the sale was void because Mike’s failed to pay cash for the Mustang at the public auction as required by K.S.A. 8-1105, and Mike’s failed to file the required documents with the Riley County clerk pursuant to K.S.A. 8-1107 until nearly 2 years after the auction.
Also, on January 18, 2008, the defendants filed a motion for summary judgment. The defendants asserted that Mike’s complied with K.S.A. 8-1101 et seq. by lawfully coming into possession of the Mustang in response to the police department’s request, by submitting the title verification request to the division of vehicles within 30 days, and by selling the Mustang by public auction after pubhshing notice of the sale. The defendants denied haring any knowledge that the Mustang was titled in Nevada and denied that the Kansas statutes imposed any duty upon Mike’s to conduct a title search outside Kansas.
On February 25, 2008, the district court granted summary judgment in favor of Citifinancial on its claim against Mike’s. The district court found that Citifinancial did everything possible to protect its security interest in the Mustang. The district court rejected Mike’s “narrow interpretation” of K.S.A. 8-1101 et seq. that a towing service need only contact the division of vehicles to find the last registered owner of a vehicle and any lienholders. The district court found that under the circumstances Mike’s failed to make a reasonable effort to notify Citifinancial of the sale. The district court observed that Mike’s could have obtained a CARFAX report to determine the owner of the Mustang and, by doing so, Mike’s would have discovered Citifinancial’s interest as a lienholder. Accordingly, the district court granted judgment against Mike’s for the value of Citifinancial’s Men in the amount of $8,641.52 plus interest. By agreement of the parties, the district court dismissed Citifinancial’s claims against KSU Federal Credit Union and Monihen with prejudice. Mike’s timely appeals.
Mike’s claims the district court erred by granting summary judgment in favor of Citifinancial. Mike’s argues that it complied with K.S.A. 8-1101 et seq. by submitting the title verification request to the division of vehicles and by selling the Mustang at public auction after publishing notice of the sale. According to Mike’s, Kansas law only requires a wrecker or towing service to request verification from the division of vehicles of the last registered owner and any lienholders before a vehicle can be sold. Mike’s complains that requiring any additional actions not set forth in K.S.A. 8-1101 et seq., such as conducting a state-by-state title search, would be burdensome and unreasonable.
Citifinancial claims that Mike’s failed to strictiy comply with K.S.A. 8-1101 et seq. because the statutes contemplate that notice of a sale must be sent to the owner of the vehicle and any hen-holders. Citifinancial also claims that Mike’s failed to pay cash for the Mustang at the public auction as required by K.S.A. 8-1105, and Mike’s failed to file the required documents with the Riley County clerk pursuant to K.S.A. 8-1107 until nearly 2 years after the Mustang was sold at auction. Furthermore, Citifinancial argues that K.S.A. 8-1101 et seq. does not satisfy the requirements of due process of law because the statutory scheme provides no mechanism to notify an out-of-state owner or lienholder of the potential sale of their interest in a vehicle.
We note that the Kansas Motor Carriers Association (KMCA) filed an amicus brief and argues that Citifinancial’s claim is preempted by federal law under the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. § 14501 et seq. (2000). Specifically, KMCA argues that 49 U.S.C. § 14501(c)(1) provides for express preemption when a state enacts a law related to the price, route, or service of any motor carrier. However, the federal preemption issue was not raised by any party in district court and is not even raised as a point of error in the appellant’s brief. Generally, issues not raised before the district court cannot be raised for the first time on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Also, an amicus brief generally may not raise an issue that was not raised by the parties. Hensley v. Board of Education of Unified School District, 210 Kan. 858, 864, 504 P.2d 184 (1972). Thus, we decline to address KMCA’s federal preemption issue.
The standard of review for summary judgment is well known:
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds Could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
This case involves interpretation of the Kansas statutes pertaining to abandoned vehicles and wrecker or towing services. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
K.S.A. 8-1101 et seq.
By statutory provision, any law enforcement officer in Kansas may have a motor vehicle towed when left unattended for more than 48 hours or when any unattended motor vehicle intérferes with the public highway operations. K.S.A. 2008 Supp. 8-1102(c). The person who provides the wrecker or towing services at the direction of the law enforcement officer acquires a first and prior lien on the vehicle for the value of the service rendered. K.S.A. 2008 Supp. 8-1103(a). If the wrecker or towing service knows the name of the owner of the vehicle, then the wrecker or towing service has 15 days to notify the owner that the vehicle is being held subject to satisfaction of the lien. K.S.A. 2008 Supp. 8-1103(a). Any vehicle remaining in the possession of the wrecker or towing service for more than 30 days may be sold to pay the reasonable towing and storage fees:
“Whenever any person providing wrecker or towing service, as defined by law, while lawfully in possession of a vehicle, at the direction of a law enforcement officer or the owner, renders any service to the owner thereof by the recovery, transportation, protection, storage or safekeeping thereof, a first and prior lien on the vehicle is hereby created in favor of such person rendering such service and the lien shall amount to the full amount and value of the service rendered. The lien may be foreclosed in the manner provided in this act. If the name of the otoner of the vehicle is known to the person in possession of such vehicle, then within 15 days, notice shall be given to the owner that the vehicle is being held subject to satisfaction of the lien. Any vehicle remaining in the possession of a person providing wrecker or towing service for a period of 30 days after such wrecker or towing service was provided may be sold to pay the reasonable or agreed charges for such recovery, transportation, protection, storage or safekeeping of such vehicle and personal property therein, the costs of such sale, and the costs of notice to the owner of the vehicle and publication after giving the notices required by this act . . . .” (Emphasis added.) K.S.A. 2008 Supp. 8-1103(a).
Before any vehicle is sold, the wrecker or towing service shall request verification from the division of vehicles of the last registered owner and any lienholders. Notice of sale shall be mailed by certified mail to any such registered owner and any such lienholders and 'published in a newspaper in the city or county where the sale is advertised to take place:
“Before any such vehicle and personal property is sold, the person intending to sell such vehicle shall request verification from the division of vehicles of the last registered owner and any lienholders, if any. Such verification request shall be submitted to the division of vehicles not more than 30 days after such person took possession of the vehicle. Notice of sale, as provided in this act, shall be mailed by certified mail to any such registered owner and any such lienholders within 10 days after receipt of verification of the last owner and any lienholders, if any. The person intending to sell such vehicle and personal property pursuant to this act shall cause a notice of the time and place of sale, containing a description of the vehicle and personal property, to be published in a newspaper in the county or city where the sale is advertised to take place .... Notices given under this section shall state that if the amount due, together with storage, publication, notice and sale costs, is not paid within 15 days from the date of mailing, the vehicle and personal property will be sold at public auction.” (Emphasis added.) K.S.A. 2008 Supp. 8-1104.
All sales must be at public auction and for cash. K.S.A. 8-1105. Additionally, copies of the notices and publications required by the Act, and an affidavit of the person providing wrecker or towing services setting forth the claim and actual expenses of notice, publication, and sale, shall be filed with the clerk of the county in which the sale takes place, and certified copies of such documents shall be received as “presumptive evidence” of the matters therein contained. K.S.A. 8-1107.
Statutory notice requirement
Mike’s is correct that the plain language of K.S.A. 2008 Supp. 8-1104 only requires a wrecker or towing service to request verification from the division of vehicles of the last registered owner and any lienholders before a vehicle can be sold. We interpret the division of vehicles to mean only the division of vehicles in Kansas. Here, Mike’s complied with K.S.A. 2008 Supp. 8-1104 and requested verification from the division of vehicles of the last regis: tered owner of the Mustang and any lienholders on record with the state. Of course, the division of vehicles only has records of vehicles titled in Kansas and the Mustang in question was titled in Nevada.
K.S.A. 2008 Supp. 8-1104 further provides that notice of sale shall be mailed by certified mail to such registered owner and any lienholders within 10 days after receipt of verification from the division of vehicles. But here, Mike’s did not mail the notice of sale to either Canady or Citifinancial because they were not the registered owner or lienholder in Kansas. Finally, K.S.A. 2008 Supp. 8-1104 requires the notice of sale to be published in a newspaper in the city or county where the sale takes place, and Mike’s satisfied this statutory requirement.
Citifinancial cites Sells v. Muncie Auto Salvage, Inc., No. 97,835, unpublished opinion filed March 21, 2008, and argues that Mike’s should have done more than contact the division of vehicles in order to determine the owner of the Mustang and any lienholders. In Sells, the plaintiff notified the Kansas City, Missouri, Police Department that a work truck had been stolen from his place of business. On the same day, the Kansas Highway Patrol (KHP) found the truck on a highway in Kansas City, Kansas, where it had been involved in a collision. At the KHP’s request, the defendant towed the truck back to its lot in Kansas City, Kansas.
The next day, the defendant sent a vehicle records request to the division of vehicles, which was returned with the notation “no record.” Even though the truck had a Missouri license plate, the defendant did not send any records request to the State of Missouri. A few weeks later, the defendant published notice of its intent to sell the truck to satisfy the storage lien. Prior to the sale, the defendant received notice from an insurance company that the truck had been reported stolen. Nevertheless, the defendant proceeded with an auction, and the defendant made a credit bid on the truck to satisfy the storage lien.
About a month after the auction, the plaintiff learned from the KHP that his truck was at the defendant’s lot. The plaintiff visited the lot to negotiate the return of the truck, but the defendant ultimately refused to relinquish the truck to the plaintiff. While at the lot, the plaintiff observed his title and registration documents, proof of insurance, and numerous business cards with his name and address located inside the truck.
The plaintiff sued the defendant, and following a bench trial, the district court ordered the defendant to return the truck to the plaintiff and pay damages. On appeal, the defendant argued that it complied with K.S.A. 8-1101 et seq. by submitting the title verification request to the division of vehicles and by selling the truck at public auction after publishing notice of the sale. The court rejected the defendant’s argument and held that the defendant knew or should have known the identity of the owner from the Missouri license plate registered to the plaintiff and from tire title and registration documents, proof of insurance, and numerous business cards with the plaintiffs name and address located inside the truck. The court reasoned that a reasonably cautious and prudent person at the time of the tow would have known tire owner of the truck simply by looking at these items. Slip op. at 3.
The facts in Sells are distinguishable from the present facts. Here, the Mustang did not have any license plates when the police asked Mike’s to tow the vehicle. The record is silent as to whether there were any identifying documents inside the Mustang, such as title and registration or proof of insurance. Mike’s complied with K.S.A. 2008 Supp. 8-1104 and requested verification from the division of vehicles of the last registered owner and any lienholders on record with the state. Unlike the defendant in Sells, there is no reason to believe that Mike’s knew or should have known the identity of the owner or any lienholders.
Citifinancial also claims that Mike’s failed to pay cash for the Mustang at the public auction as required by K.S.A. 8-1105. Although the record is unclear, it appears that Mike’s made a $500 credit bid for the Mustang at the public auction since its lien for storage and towing fees exceeded that amount. Although any purchaser at the public auction other than Mike’s would have been required to pay cash for the Mustang pursuant to K.S.A. 8-1105, Mike’s credit bid for the Mustang did not violate the statute. It was unnecessary for Mike’s to write a $500 check payable to itself in order to comply with K.S.A. 8-1105.
Citifinancial also argues that the public auction was void because Mike’s failed to file the required documents with the Riley County clerk pursuant to K.S.A. 8-1107 until nearly 2 years after the auction. K.S.A. 8-1107 provides that copies of the notices and publications required by the Act, and an affidavit of the person-providing wrecker or towing services setting forth the claim and actual expenses of notice, publication, and sale, shall be filed with the clerk of the county in which the sale takes place, and certified copies of such documents shall be received as “presumptive evidence” of the matters therein contained. Citifinancial is correct that Mike’s failed to timely comply with the requirements of K.S.A. 8-1107. As a result, Mike’s failed to establish “presumptive evidence” that it satisfied the requirements of the act. However, failure to strictly comply with the requirements of K.S.A. 8-1107 does not void the public auction unless Mike’s is unable to otherwise establish that it complied with the requirements of the act.
Due process
The issue then is whether a wrecker or towing service that complies with the statutory provisions of K.S.A. 8-1101 et seq. nevertheless owes a due process obligation to an out-of-state owner and any lienholders to notify them of an intended sale of a vehicle, in addition to the published notice. Citifinancial argued in its summary judgment motion and on appeal that Mike’s provided insufficient notice to satisfy due process.
Under constitutional guaranties of due process, any judicial process can be made effective only on sufficient notice to parties concerned. See U.S. Const. amend. XIV; Kan. Const. Bill of Rights, § 18; Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1273, 136 P.3d 457 (2006). For notice to satisfy due process in any proceeding, which is to be accorded finality, the notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Without such notice, due process is denied and any resulting judgment rendered is void. 281 Kan. at 1275.
K.S.A. 8-1101 et seq. is unique in that the statutory scheme creates a Hen in favor of a wrecker or towing service that can be foreclosed without a judgment. However, the statutory scheme provides a state-created self-help remedy that allows one party to take away another party’s property interest, and this implicates a party’s due process rights. Thus, to avoid a violation of the due process rights of an owner or lienholder whose vehicle has been towed without the owner’s knowledge or consent, notice that the wrecker or towing service intends to auction the vehicle must be reasonably calculated, under all the circumstances, to apprise the owner and any lienholders of the sale.
Here, we find it significant that the parties stipulated that the value of the Mustang was $11,000 to $12,000. Mike’s lien for towing and storage services amounted to only $870 plus the printing fees for publishing the notice. The value of the Mustang was more than sufficient to satisfy Mike’s claim as well as Citifinancial’s hen in the amount of $8,641.52. By purchasing the Mustang at its own auction for a $500 bid, Mike’s received a substantial windfall for towing and storing the vehicle. At the same time, Citifinancial was deprived of its substantial interest in the vehicle without receiving any prior notice of the sale. Mike’s knew that someone owned the Mustang. As the district court noted in its decision, “[e]very vehicle, from the day it rolls off the assembly line, has a registered owner.” Under the circumstances, especially given the value of the Mustang, we believe the district court was correct to consider whether Mike’s efforts to notify Citifinancial of the sale were reasonably calculated to satisfy due process.
However, we conclude the evidentiaiy record was insufficient for the district court to resolve the due process issue on summary judgment. In its memorandum in opposition to Mike’s motion for summary judgment, Citifinancial attached the affidavit of its assistant vice president, Jon Markwell. Markwell stated that he requested and obtained a CARFAX report on the Mustang on January 10, 2007, based on the make, model, and VIN of the Mustang. The CARFAX report indicated that the Mustang was titled in Nevada and had a hen on the title. Markwell stated that any individual in possession of the Mustang could have easily made an inquiry with CARFAX and followed up with the Nevada division of vehicles to determine the name of the owner and any lienholders. Based only on Markwell’s affidavit, the district judge concluded that “Mike’s could have determined the previous owner through CAR-FAX.”
On the other hand, Mike’s attached an affidavit from the executive director of the KMCA, Thomas A. Whitaker, to its memorandum in opposition to Citifinancial’s motion for summary judgment. In the affidavit, Whitaker stated that to the best of his knowledge and belief there is no government system for performing a nationwide search for the owner of a vehicle, other than conducting a search for stolen vehicles through the National Crime Information Center (NCIC).
Here, the record is silent as to whether Mike’s was aware of CARFAX and the record is disputed as to whether Mike’s could properly rely on the commercial enterprise in order to conduct a title search. The record is also silent as to whether the Manhattan Police Department had any information about the owner of the Mustang and whether it would have been burdensome to conduct a search for stolen vehicles through the NCIC. The record is also silent as to whether there were any identifying documents inside the Mustang, such as title and registration or proof of insurance. All this evidence would have been relevant for the district court to determine whether Mike’s efforts were reasonably calculated, under all the circumstances, to notify Citifinancial of the sale.
Accordingly, we remand the case to the district court for further proceedings. The parties should be allowed to conduct discovery to develop relevant evidence as to whether Mike’s efforts to notify Citifinancial of the sale were reasonably calculated to satisfy due process.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the state of Kansas against H. McGarry, J. McDermid, and W. J. Lloyd, on a bond given by the defendants in a bastardy proceeding. The case was tried by the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants for $400 and costs. The defendants bring the case to this court.
It appears from the pleadings, the admissions of the parties and the evidence in the case, among other things, as follows: Jasper M. Stebbins was charged with bastardy by Clara Wilson, the mother of the bastard child, before Frederick Salter, a justice of the peace in and for McPherson county. A hearing was had before the justice, who adjudged that Stebbins was the father of the bastard child, and ordered and required that he, with sufficient sureties, should enter into a recognizance, as required by law, in the sum of $400. In pursuance of such order of the justice, the defendants in this action, McGarry, McDermid, and Lloyd, on January 11,1883, entered into the bond sued on in this action in the sum of $400, conditioned that said Stebbins would appear in the district court of such county on January 16, 1883, to answer the aforesaid complaint, and not depart without leave, and abide the judgment and orders of such court. Only the sureties signed the bond. Stebbins himself did not sign it. Stebbins appeared in person in the district court, and answered said complaint. The hearing was had on January 17, 1883, before the court and a jury, and Stebbins was again adjudged to be the father of the bastard child, and judgment was rendered accordingly. He remained in court, and did not depart therefrom without leave of the court; and when the aforesaid judgment was rendered, he asked the court to fix a bond to satisfy the judgment, which the court refused to do, and forced Stebbins to go hence on the bond already given in the justice’s court. Stebbins has all the time remained in McPherson county, and has át no time been imprisoned on any of the aforesaid bastardy proceedings. The district court, in rendering judgment in the bastardy proceedings, ordered that Stebbins should pay certain sums of money, which he failed to do, and the same have not been paid; and these failures of payment are the only breaches of the bond alleged in this action.
Sections 5, 9, 13, and 14, of the act relating to illegitimate children, read as follows:
“Sec. 5. If the justice, on the hearing, adjudge the defendant to be the father of such child, he shall require him to enter into a recognizance in a sum not less than two hundred nor more than one thousand dollars, with sufficient sureties, payable to the state of Kansas, and conditioned that he will appear at the next term of the district court of such county, to answer such complaint, and not depart without leave, and abide the judgment and orders of such court; and if the defendant fail to enter into such recognizance, the justice shall commit him to jail until he be discharged by due course of law.”
“Sec. 9. Upon any continuance granted either party, the court or justice granting the same shall require the defendant to enter into recognizance for his appearance at the time to which the cause may be continued; and in default of such recognizance, shall commit him to jail until he shall give such recognizance or be discharged by due course of law.”
“Sec. 13. Such court shall, on such finding or confession, render such judgment and make such order as may seem just, for securing the maintenance and education to such child by the annual payment to the mother, or, if she be dead or an improper person to receive the same, to such other person as the court may direct, and of such sum or sums of money as the court may order, payable at such time or times as may be adjudged proper. The judgment shall specify the terms of payment, and shall require of such defendant, if he be in custody, to secure the payment of such judgment by good and sufficient sureties; or, in default thereof, he shall be committed to jail until such security be given.
“Sec. 14. No person adjudged to be the father of a bastard child shall be imprisoned for any failure to comply with any order, direction or judgment of the court of justice, for a term exceeding one year.”
This same act recognizes the hearing before the justice of the peace as a preliminary examination, and the hearing in the district court as the final trial of the case. Section 21 of the act mentions the hearing before the justice as a “preliminary examination.” The main question involved in this case is: What do the words “abide the judgment and orders of such court,” as used in § 5 of the bastardy act, mean ? Does the word “abide” mean pay, or satisfy? or does it mean endure, or suffer, or acquiesce in, or something else? It is believed that the word “abide” never means pay, or satisfy, while it does sometimes mean endure, or suffer; and to construe the word to mean to pay, or satisfy, is to give the statute in which it is found a harsh and needlessly severe construction. It would compel a party to enter into a recognizance with sufficient sureties to pay or satisfy a judgment, if any should ever be rendered against him, or to go to jail, and be imprisoned possibly for months before any trial could be had, and although he might be ever so innocent. No statute so harsh as this would be under such a construction can be found even among the crim inal statutes of the state. Besides, if the legislature, when it used the word “abide,” meant- pay, or satisfy, why did it not use one of these words? And if it was intended that the words “abide the judgment and orders of such court” should mean that the recognizors should pay or satisfy the judgment and orders of such court, what is the use of § 9 of the act ? Suppose that the recognizance prescribed by § 5 of the act is entered into by the defendant and his sureties, and the case taken to the district court and there called for trial, and continued at the instance of either party, and another recognizance under § 9 is given: then has the first recognizance spent its force ? If it has, of course the defendant's sureties upon it will never be required to pay or satisfy any judgment that might be rendered in the case. But if it has not spent its force, then why require this second recognizance ? Section 9 requires that a recognizance shall be entered into, or the defendant committed to jail, at every continuance, whether the continuance is obtained by the state or by the defendant.
The decision in the case of Towns v. Hale, 68 Mass. 199, 201, supports the theory that the word “abide,” as used in the bastardy act, cannot mean more than a willingness and readiness to have the judgment of the court enforced against the defendant; that it cannot mean that the defendant or his sureties shall perform the final judgment or order of the court, but only that the defendant will attend the court so long as the action is pending, and when the final judgment is rendered that he will surrender himself to the court to give bond to perform such judgment, or to be committed to prison. See, also, as tending to support this view, the cases of Shaw v. Hatch, 6 N. H. 162; Marshall v. Reed, 48 id.36.
The cases of Jackson v. The State, 30 Kas. 88, and Hodge v. Hodgdon, 62 Mass. 294, 297, are not in point. In those cases there was an unquestionable breach of the recognizance or bond. The defendant did not wait in court until the final judgment was rendered, and then surrender himself into the custody of the court to endure or suffer the consequences of such judgment. In each of these cases the defendant was ab sent when his presence was required. It is true that in both cases language is used which would go to the extent of saying that the recognizance or bond is not satisfied unless the judgment is paid; but what is thus said is at most only dictum. There was no necessity for saying any such thing under the facts of either case. The dictum in the case of Hodge v. Hodgdon was overruled by the supreme court of Massachusetts in the subsequent case of Towns v. Hale. The supreme court of Maine, however, seems to hold that the word “abide,” in a statute similar to ours, means pay, and that when the final judgment is rendered the defendant and his sureties commit a breach of their bond unless they pay or satisfy the judgment. (Taylor v. Hughes, 3 Me. 433; Corson v. Tuttle, 19 id. 409.) These cases were decided prior to the case of Towns v. Hale, ante, in which last-mentioned case the prior cases were cited and disapproved. We like the views expressed by the supreme court of Massachusetts better than those expressed by the supreme court of Maine. In further support of the views herein enunciated, see the following cases: Power v. Fenno, 76 Mass. (10 Gray), 249; Turner v. Wilson, 49 Ind. 581, 585; Burr v. Wilson, 50 id. 587; Gebhart v. Drake, 24 Ohio St. 177; Grieve v. Freytag, 31 id. 147; Gray v. Fulsome, 7 Vt. 452; Simmons v. Adams, 15 id. 677; Blood v. Morrill, 17 id. 598.
In our opinion, when a recognizance or bond is given in bastardy proceedings by the defendant and his sureties, under § 5 of the bastardy act, and final judgment is afterward rendered against the defendant, adjudging him to be the father of the bastard child, and in securing the maintenance and education of the child the judgment requires that the defendant shall make certain payments of money, and the defendant then voluntarily appears and surrenders himself into the custody of the court, and, as required by § 13 of the act, offers to secure the payment of such judgment by good and sufficient sureties, or in default thereof to be committed to jail until such security be given, and he continues ready and willing to perform the judgment in this manner, no breach of the recognizance or bond has taken place.
The judgment-of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This is an action of ejectment to recover lot 1, block 131, in the city of Fort Scott. The petition contains the usual averments, and the answer is a general denial. The case was tried by the court, without a jury, and judgment entered for defendants, awarding them the lot, subject to the lien for taxes paid by plaintiff, amounting to $226.31. Defendants bring the case here.
The only error complained of was in making the sum of $226.31 a lien on the lot. The court found that plaintiff below, defendant in error, claimed ownership under two deeds, a tax deed dated and recorded October 27, 1884, executed upon a sale of the lot, made September 16,1875, for the taxes due for 1874; that at that sale the county purchased the lot, and assigned the certificate to plaintiff in April, 1884; that the treasurer charged twenty-five cents per lot for advertising the tax sale of 1874, while the actual cost was only twelve’ and one-half cents per lot; that plaintiff also had a quitclaim deed from R. C. Anderson, the original owner, dated March 18, 1884, and filed for record on the 24th of the same month at 2 o’clock p. m. ; that plaintiff was entitled to $226.31 redemption-money, and that it was a lien on the lot.
The defendants below, plaintiffs in error, claim under a warranty deed from James Hart, dated September 13, 1880. Hart claimed under two deeds, a tax deed dated September 10, 1877, for the taxes for the year 1876, and also under a quitclaim deed from R. C. Anderson, the original owner, dated May 11, 1883, and filed for record March 24, 1884, at 3 o’clock p. m. At the time of the tax sale of 1877, the lot had been sold to Bourbon county for the taxes of 1874. Both tax deeds are good upon their face, and Hart and his grantees had been in actual possession of the lot and paid the taxes thereon since the recording of his tax deed September 13, 1880. The title to the property down to Anderson was good.
The question urgently presented in the briefs as to the effect of the priority of registration of the quitclaim deeds, may be answered by simply stating that the defendants and their grantor took their quitclaim deeds from Anderson, who was also the grantor of plaintiff. The deed to Hart was under date of May 11, 1883; to Hewitt, of March 18, 1884. The deed from Anderson to Hewitt of March 18, 1884, conveyed nothing more than what he actually owned at that time. (Utley v. Fee, 33 Kas. 683.) He had before that time conveyed his entire interest to Hart. Therefore the plaintiff took nothing as against him by his quitclaim deed.
The tax deed under which the plaintiff claimed was executed in 1884, based upon the sale to Bourbon county in 187.5, for the taxes of 1874. For that sale the treasurer charged twenty-five cents per lot for advertising the delinquent tax sale, while the actual cost was only half the amount. Such a deed was void. (Board of Regents v. Linscott, 30 Kas. 241.)
The defendants claimed title under a tax deed from the tax sale of 1877 for the taxes of 1876. In 1875 the land had been bought in by Bourbon county at a tax sale for the taxes of 1874, and when it was offered for sale in 1877 for the taxes of 1876, the land had neither been redeemed nor sold, nor the tax-sale certificate assigned; therefore that tax sale was void. (Comp. Laws of 1879, ch. 107, §122; Belz v. Bird, 31 Kas. 139.) A tax deed was issued to Hart, the grantor of defendant, September, 1880, and he immediately took possession under his tax deed.
It is contended in this action, that because Hart had been in possession and had had his tax deed recorded more than two years before the commencement of this action, he held the lot, divested of all tax liens for taxes levied before the date of the tax sale of 1877. Now while the tax deed of Hart, after the two years had expired, would probably have been valid against everybody except Anderson, it would have been voidable as to him. Hart secured from Anderson, in 1883, his interest in the lot. Now this quitclaim deed was a better and a stronger title than the tax deed held by Hart, and, under the well-known rule of law, the weaker and inferior title was merged in the stronger and superior title, and he took the lot, under such quitclaim deed, subject to all liens that would have been upon it while owned by Anderson. If Anderson had not parted with his title to any person until this action had been brought, the taxes under Hewitt’s tax deed would have been a lien upon the lot; and the defendants, claiming under Hart, the grantee of Anderson, have the same rights and are under the same liabilities, so far as this tax lien on the lot is concerned, as Anderson himself would have been had he not given a deed for the lot. The taxes for 1874 would have been then a lien upon the lot, under §142, chapter 107, Compiled Laws of 1879. For that purpose it would be immaterial whether the tax deed was based upon a valid or void tax sale.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Valentine, J.:
This action is founded upon a written contract, set forth as an exhibit to the plaintiffs’ petition, and is for a balance due for labor and materials furnished in 1882, in the construction of a large brick building in the city of Wichita. The action was commenced in the district court of Sedgwick county by Charles A. Parsons and James Longmire, partners, against F. G. Smythe sr., F. G. Smythe jr., and Charles H. Smythe, and was afterward removed by change of venue to the district court of Greenwood county, where it was tried in 1885, before the court without a jury, and the court found generally in favor of the plaintiffs and against the defendants — finding a balance due at the time of the trial of $487.60, for which amount, with costs, the court rendered judgment in favor of the plaintiffs and against the defendants. The defendants bring the case to this court, and ask for a reversal of the aforesaid judgment. They claim that the court below committed errors as follows:
1. They claim that prior to the trial and prior to their filing any answer in the case, the court below erred in overruling their motion to strike out of the plaintiffs’ petition the words “kiln count,” and “actual kiln count,” claiming that said words are “redundant, immaterial and repugnant” to the contract sued on.
2. They further claim that the court below erred in overruling the defendants’ objection to the introduction of any testimony on the ground that the plaintiffs’ petition did not state facts sufficient to constitute a cause of action.
3. They further claim that the court below erred in admitting testimony tending to prove a general custom at Wichita with reference to the method of ascertaining the number of brick in a wall.
4. They further claim that the court below erred in permitting one of the plaintiffs to testify as to the number of brick used by actual count, when it is claimed that such plaintiff did not count the brick himself, but obtained his information only from others.
5. They further claim that the court below erred in refusing to make special findings of fact and conclusions of law.
We shall consider these claims of error in their order:
I. The original contract between the plaintiffs and the defendants, and the one sued on in this action, is in writing, and under it the defendants were to furnish the plaintiffs with all the brick necessary for the construction of said building. As to how the number of the brick should be ascertained, or how they were to be counted, the contract is possibly ambiguous; and if it is, then the words “kiln count,” and “actual kiln count,” have some office to perform in the plaintiffs’ petition; for by them it is shown how the brick should be counted.These words merely show how the plaintiffs construe the contract. If, however, the contract is not ambiguous, then these words could certainly do no harm, for the parties must be governed by the contract, and the words must be treated as surplusage. The contract itself is set out as an exhibit to the plaintiffs’ petition, and must govern, whatever may have been alleged concerning it. It may be that the aforesaid words are immaterial and redundant, and probably they are; and if so, then the court might in its discretion have stricken them out; but as the court has a discretion in such cases, we do not think it erred in refusing to strike them out. (Drake v. National Bank, 33 Kas. 639.) They could not do any harm by being permitted to remain in the petition.
II. There is nothing at all in the second alleged error.
III. We think the testimony tending to prove a general custom at Wichita with reference to the method of ascertaining the number of brick in a wall, was properly admitted. The plaintiffs were bricklayers and contractors, and the defendants were the owners of the building, and the defendants were to pay the plaintiffs for laying the brick in the wall a certain amount or rate per thousand; and the question arose: How shall the brick be estimated or counted in the wall ? The foregoing testimony was admitted upon the theory that the contract itself was ambiguous, or at least did not definitely or specifically prescribe how the number of the brick in the wall should be ascertained, and that the parties contracted with reference to this custom, which was well known at Wichita. Parties are always presumed to contract with reference to a uniform and well-settled custom or usage pertaining to the matters concerning which they make the contract, where such custom or usage is not in opposition to well-settled principles of law, nor unreasonable; ( Walls v. Bailey, 49 N. Y. 464, et seq., and cases there cited; Graham v. Trimmer, 6 Kas. 231;) and by the introduction of the aforesaid testimony it was attempted on the part of the plaintiffs to prove such a custom or usage. Besides, there does not seem to have been any objection made or exception taken to the introduction of this testimony. Hence, for this reason also, and it might be for this reason alone if the other did not exist, the court below did not err in admitting the testimony.
IV. The other testimony complained of is the testimony of Charles A. Parsons, one of the plaintiffs in the case. This testimony was introduced by the plaintiffs without any objection being interposed thereto on the part of the defendants. Some of it was competent, and some of it was incompetent. Afterward, as the record shows, “the defendants moved to strike out all of Parsons’s testimony, as hearsay and incompetent and irrelevant; which motion the court overruled; to which the defendants excepted.” We think the motion was rightfully overruled. In the case of Smith v. Brown, 8 Kas. 609, it was held as follows:
“If any portion of the evidence objected to is competent, the court may, on a motion to exclude the whole, exclude the part that is incompetent, but is not obliged to do so; it may only respond to the motion as made, and overruled. The motion must fit the case, or the court may overrule it.”
(See also Gano v. Wells, 36 Kas. 688.)
We might further say, that the incompetent portion of Parsons’s testimony could not have prejudiced any of the rights, of the defendants. It tended to show that the number of brick delivered by the defendants to the plaintiffs did not exceed 181,402, while the competent evidence clearly showed the same thing; and there was no evidence tending to show that any larger number of brick was delivered.
V. The court below did not err in refusing to make special findings of fact and conclusions of law. No request was made that the court should do so until after the general finding was made and after the judgment was rendered. After the judgment was rendered the defendants filed a motion “requesting the court to find and file conclusions of law and fact separately.” Whether this motion was called to the attention of the court at any time prior to the time when the case for the supreme court was settled and signed, is not shown. At the time of settling the case, the matter was called to the attention of the court, and the court then offered to find and file such conclusions, if desired; but the defendants objected, and the court did not do so. No error was committed by the trial court in this respect.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The plaintiff in error assigns but two errors for review: First, that the court erred in refusing to give the instructions asked by the defendant; second, that the special findings of fact are not sustained by the evidence. The special instructions asked by the defendant are as follows:
“ 1. In townships where hogs are not by law permitted to run at large, a legal and sufficient fence may have its lower rail, board or plank two- feet from the ground.
“2. If a legal and sufficient fence as just defined inclosing the defendant’s railway in and through the township in which plaintiff’s hogs were killed, as shown by the testimony in this action, would not have prevented said hogs or any of them from going to, on or over the track of said railway at thé place where they were killed, then no recovery in favor of plaintiff can be based wholly or partly on any failure to fence said railway.
“ 3. Hogs which have escaped from their owner or keeper by breaking through his inelosure or otherwise, and which are roaming on the highway or trespassing on the lands of another, are running at large within the meaning of § 46 of chapter 105 of the General Statutes of Kansas.
“4. If you find that plaintiff’s hogs, for the killing of which this action is brought, were killed while running at large in a township where the voters had not voted to be exempt from the operations of § 46 of chapter 105 of the General Statutes of Kansas, then you should find for the defendant, unless you further find that said hogs were at large without fault or negligence of plaintiff.
“ 5. In a township where hogs are by law prohibited from running at large, it is the duty of those who keep hogs in a field or pen to inclose them with such a fence or barrier as will prevent their escape. If in such township they have escaped by breaking through or getting over the fence with which they were inclosed, such escape will be presumed to have been by reason of the fault or negligence of the person assuming to keep them, unless it is proven that such fence was so constructed and kept in repair that such breaking through or getting over could not have been reasonably anticipated from the condition of the fence and the size, activity, natural inclinations and known character of the hogs so escaping.
“6. The rules of law as to diligence and negligence apply to stock-owners,as well as to railway companies. Hence if hogs were prohibited by law from running at large in the township where plaintiff’s hogs were kept by him, and were killed by the defendant’s railway train, the law required from the plaintiff the same degree of diligence to keep his hogs from escaping that it required from the railway company to avoid killing them when they got in front of its train; and if the plaintiff failed to use that degree of diligence to keep his hogs from escaping he cannot recover in this action.”
We concede that instructions one, two, five and six state the law applicable to this case, and know of no reason why the court should not have given them to the jury. Instructions five and six we think were substantially given in the general charge by the court. As to instruction four, it assumes that the defendant would not be liable if the hogs in question were running at large as contemplated by §46 of chapter 105 of the General Statutes of Kansas, even if killed by the negligence of the defendant. Had the railway added to this instruction its liability for its acts if negligently or willfully done, then the instruction would have been applicable to this case. (Central Branch Rld. Co. v. Lea, 20 Kas. 353.) This is also substantially the defect in instruction three, refused. The fact that hogs are found at large in a township where they are prohibited by law from running at large, is not conclusive evidence that they are trespassers as contemplated by § 46; it depends upon how they came to be at large. If by the deliberate or negligent acts of the owner, then they are to be considered as running at large; but if by accident, without fault of the owner, then they are not running at large as contemplated by said section. Instructions three and four, if given, would have relieved the defendant of all liability had the hogs been at large as trespassers, or at large by the fault of their owner, notwithstanding the fact that the injury occurred by the negligence or the wanton acts of the defendant or its employés. This is not the law applicable to this case, and therefore the instructions were properly refused. (See Mo. Pac. Rly. Co. v. Roads, 33 Kas. 640; Mo. Pac. Rly. Co. v. Bradshaw, 33 id. 533; A. T. & S. F. Rld. Co. v. Shaft, 33 id. 527.)
The next question is, was the refusal of the court to give the instructions that were proper and ought to have been given such error, under the facts of this case, as to warrant a reversal of this action. This action was tried and the jury instructed upon two theories: First, that the injury occurred by the negligence of the defendant, its agents and employés, in the management and operation of its trains, and by the exercise of ordinary prudence and care the injury could have been prevented; second, that the hogs were at large without fault of the plaintiff, and that the defendant’s railway was not fenced at the place where the injury occurred. The jury was asked to find upon the first of these propositions, and their answer thereto was as follows:
“Did the defendant and its servants and agents negligently run its engine and cars into and upon the hogs of the plaintiff? A. Yes.
“ Could the defendant and its servants and agents, by the exercise of ordinary, prudence and care, have prevented the killing of plaintiff’s hogs after they came upon its track? A. Yes.”
Upon these findings of fact it is clear that the jury found against the defendant on the first proposition; that is, they found that the injury occurred by the negligence of the defendant and its employés, and that by the usé of ordinary prudence and care the injury could have been prevented. If these findings were sustained by the evidence, that does away with all the other questions in this case. It then could make no difference how the hogs came to be at large — whether they broke out of a lawful inclosure without fault of the defendant, or were kept in an insufficient inclosure and by the negligence of the plaintiff became at large; the injury occurred by the company’s negligence, and this would make it liable. Under these findings, if the instructions asked for by the defendant had been given, the verdict would have been the same. Counsel, however, insist that the findings were not sustained by the evidence; but in this we think counsel are mistaken. The evidence of the witnesses for the defendant alone would justify the jury in the findings. The first witness called by the defendant was its section foreman of that section where the injury occurred. He testified that the hogs could have been seen by the employés on the train for 700 or 800 feet before they reached the point where the injury occurred. The engineer who was in charge of the engine testified that he saw the hogs upon the track when 250 feet away from the point where they were run over; that he made no effort to check or stop the train; that the hogs when he first discovered them were running on the track away from the engine; that a part of them left the track, and a few continued to run on the track; he whistled and opened the cylinder cocks, supposing the hogs would leave the track. The fireman who was fifing on the engine testified that he saw the hogs when the engine was a quarter of a mile east of the place of injury, and the hogs were on the track; that the engineer whistled and let off steam, but made no effort to stop the train; that the train could have been stopped in a distance of 150 or 200 feet. This evidence alone was sufficient to show negligence. The hogs were running west on the track when discovered by the engineer; they were in a cut, running toward the west end of it; part of the hogs were on the track, and others were on each side. He could have stopped- the train before reaching the hogs, and thereby have prevented the injury. It is no excuse for him to say that he thought the hogs would leave the track; they were on the track, and some of them continued to remain on the track, and yet no effort was made to stop the train.
Counsel insist that the general charge given by the court to the jury did not state the law of this case as established by this court. The instruction referred to by counsel is as follows:
“Now, on the other side, it is claimed by the defendant in this case that there was what is called a hog law in force in this township referred to. It is said to have been an order of the board of county commissioners, properly published, prohibiting or directing that hogs should not be allowed to run at large in this county. If such was the action of the county board, that would be effective on that subject, and hogs running at large would be conclusive evidence that they were running at large contrary to law; but although that may have been conclusive evidence that these hogs were unlawfully running at large, with reference to that order of the board of county commissioners, yet unless the road of the company was inclosed with a good and lawful fence to prevent an animal from going on the railroad track, and they were killed by the railroad, the company would nevertheless be liable.”
This instruction does not correctly state the law. A railroad is only bound to fence its track with a lawful fence, and in townships where hogs are not permitted to run at large is only required to construct the fence provided for by § 2, ch. 40, of the Comp. Laws of 1885, which provides that the “bottom rail, board or plank shall not be more than two feet from the ground.” A lawful fence may or may not be sufficient to prevent hogs from going upon the track. A lawful fence might prevent large hogs and not small ones from going through it. The burden of proof to establish this rests upon the railroad company, and in this case it was conceded that a lawful fence, or a fence with the bottom rail, plank or board two feet from the ground, would not have prevented the hogs from going upon the defendant’s track. This being true, it then made no difference in this case whether the defendant’s road was fenced with a lawful fence or not. (A. T. & S. F. Rld. Co. v. Yates, 21 Kas. 613; Mo. Pac. Rly. Co. v. Bradshaw, 33 id. 533; Central Branch Rld. Co. v. Lea, 20 id. 353.) The trial court evidently understood the law to be that-the fence contemplated must be so constructed as to prevent all animals from going upon the railroad track, and so in substance instructed the jury. We do not so understand the law; but in answer to this objection we suggest to counsel that'the record fails to show any objections or exceptions taken to the giving of said instruction, and in fact we cannot see how it would help the defendant even if the exception had been saved; for if the court gave the jury a wrong construction of the law upon this branch of the case, and yet correctly gave the law upon the first proposition, that the damage was caused by the negligent act of the defendant in the operation and running of the train, without fault of the plaintiff, and the jury found for the plaintiff upon this branch of the case, then it was immaterial even if the court wrongly instructed the jury on the other branch that counsel complain of.
The cross-petition of the defendant in error presents but the one question: Will an appeal-lie from the final judgment of a justice of the peace, where the defendant makes default and permits judgment to be rendered in his absence? .Appeals are regulated by the statute. Section 120 of the code of procedure before justices of the peace reads:
“In all cases not otherwise specially provided for by law, either party may appeal.from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.”
And §132 is as follows:
“An appeal may be taken from, the final judgment of a justice of the peace in any case except in cases hereinafter stated, in which no appeal shall be allowed: First, On judgments rendered on confession. Second, In 'jury trial’s where neither party claims, in his bill of particulars, a sum exceeding twenty dollars.”
Then, by the direct terms of this statute, an appeal may be taken from a judgment not prescribed by statute; and 'judgments taken on default, or in' the' absence of a party, are not within the exception. Defendant, however, insists that §114 of -the justices act provides a complete remedy whereby judgments rendered in the absence of a party may be opened up, and the defendant let in to defend. This is true; ample provision is there made, but the statute does not pretend to make that rule an exclusive one. It simply provides an additional remedy, which may be pursued at the option of the party; and after that remedy has been pursued, a party would still have the right of appeal. Many cases might arise in which an application under § 114 would work great hardship. - Affidavit must be made in that case by the party himself.' Judgments are rendered frequently in the absence of parties, where it would be impossible to make the application in person, under said section; but an appeal may be taken without the presence of the party, it not being necessary that he should sign the appeal bond. This all may be done in his absence. We are well aware that some states apparently have decided this question the other way. In 7 Neb. 474, and 12 Neb. 52, founded upon a státute similar to our own, it was decided that an appeal would not lie from such a judgment. In Brayling v. County of Delaware, 16 Iowa, 44, which was an application to strike from the files an answer filed in the district court after an appeal had been taken from the justice of the peace, the court held that, as the defendant was in default for an answer in the justice’s court, before he could answer in the district court he would have to purge himself; but it did not hold that an appeal would not lie. In 5 Ore. 438, cited; this was a case founded upon a statute which provides that no appeal shall lie in cases where default was had in the justice’s court. On the other hand, in Butler v. Heeb, 38 Iowa, 429, it was held that an appeal would lie from the judgment of the justice of the peace rendered on default; also in Lauferty v. Prickett, 50 Ind. 24, and Hallock v. Jaudin, 34 Cal. 167. The court committed no error in overruling defendant’s motion to dismiss the appeal.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
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Green, J.:
Harriet Eggeson appeals from a judgment of the trial court denying admission of the purported February 13, 1987, last will and testament of John F. Leavey, deceased, to probate. On appeal, Eggeson argues that the scrivener s initials in the lower right comer of the attestation page of the purported February 1987 will met the requirements of K.S.A. 59-606 for the will to be admitted to probate. We disagree. We determine that the scrivener’s initials found on the lower comer of every page of the purported February 1987 will were insufficient to meet the requirements of K.S.A. 59-606 that the will “shall be attested and subscribed in the presence of [the testator] by two or more competent witnesses, who saw the testator subscribe or heard the testator apknowledge the will.” Moreover, Eggeson failed to meet her burden to establish a prima facie case of Leavey’s testamentary capacity. Accordingly, we affirm.
Leavey died February 13,2006, as a resident of Kansas. Leavey’s wife, Barbara, had died several years before Leavey. Eggeson petitioned for the probate of a will and the issuance of letters testamentary in regard to the purported February 1987 last will and testament of Leavey. Gertrude DeLuca, the daughter of Leavey, then petitioned for probate of Leavey’s alleged last will and testament dated May 13, 1997. In addition, the appellate record indicates that DeLuca filed written defenses to Eggeson’s petition for probate .of the purported February 1987 will.
The trial court held a trial on Eggeson’s petition for the probate of the February 1987 will. During the trial, the Februaiy 1987 wills of Leavey and Barbara were introduced into evidence. Both Leavey and Leavey’s wife had provisions in their wills stating as follows:
“My [Wife] [Husband] and I are executing a Last Will and Testament at approximately the same time. The two Instruments are intended to be, and shall be construed as Joint Wills. Neither of us may modify or revoke our Will during, or after the lifetime of the other, unless consented to by the non-modifying or non-revoking spouse.”
Under their wills, Leavey and Barbara left his or her personal property and the residue of his or her estate to the surviving spouse. The surviving spouse would then give certain gifts to three named charitable organizations and the residue of the estate would then be given one-half to Leavey’s children and one-half to Barbara’s siblings.
Leavey’s signature was at the end of his purported February 1987 will and also after a self-proving statement found at the end of the document. Only one witness, Kelly Baker, had signed after the attestation clause at the end of Leavey’s will and the self-proving statement. Baker had died by the time the trial occurred in this case. The signature lines for the second witness were empty. Language within the will indicated that David M. Williams, the attorney who prepared the will, was supposed to be the second witness to the will. Nevertheless, Williams’ signature did not appear after the attestation clause or after the self-proving statement. No notary public had notarized the self-proving portion. Three sets of initials, JLL, KAB, and DMW, were in the bottom right-hand comer of each page of Leavey’s will.
During trial, Eggeson identified Leavey’s signature at the end of the will. In addition, Williams identified the February 1987 will that he prepared for Leavey. Williams, who practiced law from 1984 to 1989, testified that he vaguely remembered Leavey because of the joint contractual will provision, which had been uncommon in his law practice. Williams identified his handwriting within the will but was unable to offer an explanation as to why one of the witness signature lines was blank. Specifically, when questioned why the witness signature fine was empty, Williams testified: “I wish I could explain that. I don’t know how a will would have left our office like that. That’s obviously the space for my signature, which also — I did initial it at the bottom and the next page.” Williams further testified that when he initialed the comer of a will, it meant that he was attesting to the will and putting his initials to it.
At the close of Eggeson’s evidence at trial, the trial court granted DeLuca’s motion for a directed verdict. The trial court determined that the evidence failed to establish that Leavey’s February 1987 will was executed with the statutory formalities of execution required under K.S.A. 59-606. Specifically, the trial court found that Eggeson had failed to establish by substantial competent evidence that Leavey’s February 1987 will was attested to and subscribed in Leavey s presence by at least two competent witnesses who saw Leavey subscribe or heard him acknowledge the will. Accordingly, the trial court denied admission of Leavey5s February 1987 will to probate.
Standard of Review
When ruling on a motion for directed verdict, the trial court must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. When reviewing the grant or denial of a motion for directed verdict, an appellate court applies a similar analysis. Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
Execution of Will
Eggeson argues that Williams’ initials in the lower right comer of the attestation page of the purported February 1987 will meet the requirements under K.S.A. 59-606 for the will to be admitted to probate. Whether something less than an actual signature by two or more competent witnesses would be recognized in Kansas has never been directly decided.
“Whether a purported will was properly executed according to the statutory requirements and thereby valid is a conclusion of law. [Citation omitted.]” In re Estate of Milward, 31 Kan. App. 2d 786, 789, 73 P.3d 155 (2003). An appellate court has unlimited review of conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
Eggeson’s argument also requires interpretation of K.S.A. 59-606. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The most fundamental mle of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). “When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
When applying K.S.A. 59-606 to the facts of this case, we bear in mind that a document is not a will unless it meets the requirements of K.S.A. 59-606. Milward, 31 Kan. App. 2d at 791; In re Guardianship of Slemp, 11 Kan. App. 2d 156, 158-59, 717 P.2d 519, rev. denied 239 Kan. 694 (1986). The Kansas statutes “relating to the execution of wills must be strictly construed even though, in some rare situation, the intent of a testator may be frustrated.” In re Estate of Reed, 229 Kan. 431, 438, 625 P.2d 447 (1981). Where a will is offered for probate, the burden of proof is initially upon the proponent of the will to make a prima facie case showing capacity and due execution of the will. Once it has been shown that a will has been executed in accordance with the formalities required by law, the will contestant has the burden to produce evidence to support his or her position. In re Estate of Broderick, 34 Kan. App. 2d 695, 706, 125 P.3d 564 (2005).
K.S.A. 59-606 sets forth the requirements for the proper execution of a will as follows:
“Every will, except an oral will as provided in K.S.A. 59-608 and amendments thereto, shall be in writing, and signed at the end by the party making the will, or by some other person in the presence and by the express direction of the testator. Such will shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the will.” (Emphasis added.)
As a result, K.S.A. 59-606 requires that a will be attested by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will and that the witnesses subscribe the will in the testator s presence. Attestation of a will is generally done by subscription. Black’s Law Dictionary 138 (8th ed. 2004) defines attest as “[t]o bear witness; testify” and “[t]o affirm to be true or genuine; to authenticate by signing as a witness.” As a result, the subscription of a will generally serves as the means to attest the will. This is demonstrated in the appellate rec ord of the instant case where the purported February 1987 will contains witness signature lines following the attestation clause.
It is necessary to the validity of a will that it be subscribed by the number of witnesses required by K.S.A. 59-606. If the will is not subscribed by two or more competent witnesses, the will is invalid. As stated in Clark v. Miller, 65 Kan. 726, 728, 68 Pac. 1071 (1902), “It is as essential that the writing be subscribed by at least two competent witnesses as it is that it shall be signed by the testator, in order to be a valid will.” See also Baker v. Hickman, 127 Kan. 340, 273 Pac. 480 (1929) (holding that will was valid because it was executed and acknowledged in the presence of two attesting witnesses who signed the will).
Here, the validity of Leavey’s purported February 1987 will is in question because only one witness’ signature appears in the designated lines at the end of the will. Thus, DeLuca argues that the purported will does not comply with K.S.A. 59-606 because it was not signed at the end by two or more competent people in Leavey’s presence.
The question is whether a witness’ initials in the bottom comer of every page of a purported will meets the attestation and subscription requirement of K.S.A. 59-606. Eggeson offers this court no case where it has been held that a witness’ initials in the comer of a page is sufficient for attestation and subscription of a will. Instead, Eggeson attempts to get around the statutory requirements of K.S.A. 59-606 by pointing to Williams’ testimony. Specifically, when Williams was being cross-examined by Eggeson’s counsel, he testified that his initials on the comer of a will were a legal attestation that he was present and that those were his initials. Later, during cross-examination, Williams admitted that the purpose of his initials on the comer of each page of a will was to show that the document was integrated and that no extraneous documents had been slipped into the middle of the will. Nevertheless, Williams still maintained that his initials also represented his acceptance and attestation of the document.
What is troubling about Williams’ testimony is that if Williams’ initials were meant to be an attestation within the meaning of K.S.A. 59-606, what was the purpose for the witness signature line after the attestation clause that Williams drafted? Why would Williams’ initials be written at the comer of each and every page of the document instead of just at the end of the document if they were meant to be an attestation? Both Leavey’s initials and the subscribing witness’ initials appeared at the corner of each page, and their signatures still appeared at the end of the document on the designated lines. K.S.A. 59-606 requires a will to be “signed at the end” by the testator. Moreover, the testator generally signs the will before the attesting witnesses subscribe their names. Williams was unable to offer an explanation as to why his signature did not appear in the designated witness line after the attestation clause.
The purported 1987 will contained the following attestation clause at the end of the will after Leavey’s signature:
“The foregoing instrument was subscribed, published and declared by JOHN F. LEAVEY as and for his Last Will and Testament in our presence and in the presence of each of us, and we, at the same time, at his request, in his presence and in the presence of each other, hereto subscribe our names as attesting witnesses.
‘Witness our hands, at Lenexa, Kansas, this 13th day of February, 1987.
“_Resides at_
“Kelly Baker Resides at Merriam, Kansas”
Williams’ initials did not appear near the empty witness signature line or even immediately after the attestation clause. Instead, his initials appeared at the bottom right-hand comer of the page.
Eggeson suggests that Williams subscribed the purported will when he placed his initials in the comer of the page containing the attestation clause. Although Eggeson maintains in her appellate brief that Williams directly stated that his initials were his subscription, no such testimony can be found in the appellate record. In Reed, 229 Kan. at 437, our Supreme Court set forth the following definitions of “subscribe”:
“The term ‘subscribe’ is defined in Black’s Law Dictionary 1596 (4th ed. rev. 1968) as ‘to write underneath, as one’s name; sub, under; scribere, to write; or, to write below a documentary statement.’ Webster’s Third New International Dictionary 2278 (unabridged 1964) defines ‘subscribe’ as ‘to write (as one’s name) underneath.’ Webster’s Seventh New Collegiate Dictionary 876 (1969) says: 1. to write (one’s name) underneath ... 2. to sign with one’s own hand in token of consent or obligation by writing one’s name beneath.’ ”
Here, Williams was the person who drafted the purported February 1987 will for Leavey. He specifically placed witness signature lines for his signature and the signature of the other witness, Kelly Baker, after the attestation clause. Baker placed her initials at the bottom of each page along with Leavey’s initials, but Baker still signed her name on the designated witness signature line after the attestation clause. If the initials in the comer of the attestation page were meant to be an attestation and subscription of the will, then Baker’s signature on the designated witness signature line would have been unnecessary. Williams’ initials were simply insufficient to establish that he had “attested and subscribed” the will in Leavey’s presence and had seen Leavey subscribe or heard Leavey acknowledge the will, as required by K.S.A. 59-606.
Nevertheless, arguing that the blank witness signature line does not make the purported February 1987 will invalid, Eggeson relies upon Milward, 31 Kan. App. 2d 786, and In re Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980). In Milward, this court held that the codicil to the testatrix’s will was properly executed even though the testatrix did not sign the signature line. The testratrix, however, had signed the self-proving portion of the codicil. The self-proving portion of the codicil provided that the testatrix had declared to the witnesses that the document was her codicil and that she executed the codicil without any restraint. 31 Kan. App. 2d at 791-92.
Similarly, in Petty, our Supreme Court held that the will was properly executed, even though the witnesses did not sign the end of the will, when they signed the self-proving portion following the will. Our Supreme Court noted that the self-proved portion was on the same page as the last article of the will and incorporated into the will by reference. 227 Kan. at 702. Our Supreme Court concluded: “[U]nder the circumstances of this case, where the subscribing witness signed a ‘self-proving’ sworn statement which appeared on the last page of the will after all of the dispositive provisions, the signatures were, sufficiently at the end of the will to comply with the provisions of K.S.A. 59-606.” 227 Kan. at 703.
Here, different from both Milward and Petty, Williams never signed the self-proving portion following Leavey’s purported Feb ruary 1987 will. K.S.A. 59-606 provides a mechanism for a will to be self-proved during the testator s and the witnesses’ lifetimes:
“Such will, at the time of its execution or at any subsequent date during the lifetimes of the testator and the witnesses, may be self-proved, and the testimony of the witnesses in the probate of the will may be made unnecessary by the acknowledgments of the will and the affidavits of the testator and the attesting witnesses. Such acknowledgments and affidavits shall be made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths.”
In this case, however, the purported will was never self-proved under K.S.A. 59-606 because the self-proving affidavit at the end of the will was not subscribed by two witnesses and was not notarized. As a result, Milward and Petty have no application to the facts of this case.
Eggeson further argues that the omission of a witness’ signature from the intended signature line, when followed by that witness’ initials, is only a slight or trifling departure from the statutory requirement of K.S.A. 59-606. Eggeson cites In re Estate of Perkins, 210 Kan. 619, 504 P.2d 564 (1972), where our Supreme Court set forth certain principles to be followed in applying the will execution statute. One of those principles was set forth as follows: “The will óf the testator should be carried out if reasonably possible and a substantial compliance with statutory requirements is enough. Slight or trifling departures from technical requirements will not operate to defeat a will. [Citations omitted.]” (Emphasis added.) 210 Kan. at 624.
In this case, however, the omission ofWilliams’ signature following the attestation clause did not constitute a “slight or trifling” departure from the requirements of K.S.A. 59-606. Instead, there was a complete failure to comply with the requirements of K.S.A. 59-606 that the will be “attested and subscribed” in the testator’s presence by two or more competent witnesses “who saw the testator subscribe or heard the testator acknowledge the will.” As discussed previously, Williams’ initials at the bottom corner of every page of the document were not a sufficient attestation and subscription of the purported will. Moreover, the evidence fails to establish that Williams saw Leavey subscribe or heard Leavey ac knowledge his signature on the will. Finally, the evidence fails to establish that Williams subscribed the will in Leavey s presence.
In so holding, we recognize that the scrivener s failure to comply with the statutory requirements of K.S.A. 59-606 means diat Eggeson cannot inherit under the purported February 1987 will. Such action, however, prevents fraud, undue influence, overreaching, and bad faith in the execution of wills. In determining that a purported will did not meet the necessary requirements of G.S. 1949, 59-606 to be admitted to probate, our Supreme Court in In re Estate of Weber, 192 Kan. 258, 264-65, 387 P.2d 165 (1963), stated:
“While it is unfortunate in this case that [the testators niece] must suffer from the lack of legal ability and understanding of a scrivener who sought to perform a legal act of great importance and solemnity, that of drafting a will and purporting to supervise the execution thereof, it is better that she be denied her would-be beneficial interests in the will than to open tire door and set a pattern, by those not versed in the law of wills and in utter disregard to the plain provisions of the statute, for the drafting of future wills so as to permit fraud, undue influence, overreaching and bad faith which might in some other instances be practiced upon the weak, aged or infirm testators in tire disposition of their worldly goods.”
Similarly, in Reed, 229 Kan. at 436, our Supreme Court, in determining that the document offered for probate was not a will under Kansas statutes, stated:
“ ‘ “It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of die statutory requirements. It is better this should happen under a proper construction of the statute, than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills.” ’ ”
Under the facts of this case, the requirements of K.S.A. 59-606 were not met, and the purported February 1987 will was not admissible for probate. We agree with the trial court that Eggeson failed to establish by substantial competent evidence that Leavey s February 1987 will was attested to and subscribed in Leavey s presence by at least two competent witnesses who saw Leavey subscribe or heard him acknowledge the will, as required by K.S.A. 59-606. As a result, the trial court properly denied the admission of the purported February 1987 will to probate.
Capacity of Testator
Finally, DeLuca argues that Eggeson failed to offer any evidence of Leavey’s competency and thus did not meet her burden of proof. Nevertheless, Eggeson maintains that this court should not address this issue because DeLuca never presented it at the trial court level.
Generally, an issue not raised before the trial court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Here, it is unclear whether DeLuca raised this issue in her written defenses to Eggeson’s petition for probate of the purported February 1987 will as the parties have not included that document in the appellate record. Nevertheless, the record indicates that the capacity issue was raised at some point during the case as the trial court made specific findings concerning this issue.
Eggeson contends that even if this court chooses to consider the capacity issue, the burden of proof falls on DeLuca because Eggeson met her prima facie burden of proof on this issue with her verified petition. Eggeson cites K.S.A. 59-2213, which states: “The verification of the petition pursuant to K.S.A. 59-2201 and amendments thereto shall constitute sufficient proof of the statements made in the petition in the absence of written defenses or any appearance by an adverse party.” Eggeson, however, ignores the fact that the appellate record demonstrates that DeLuca did file written defenses and did enter her appearance as an adverse party. As a result, K.S.A. 59-2213 does not establish that Eggeson met her burden of proof in this case.
At the trial in this case, Eggeson had the burden to make aprima facie case of Leavey’s capacity. See Broderick, 34 Kan. App. 2d at 706 (Where a will is offered for probate, the burden of proof is initially upon the proponent of the will to make a prima facie case showing capacity and due execution of the will.). In announcing its ruling from the bench at the conclusion of trial, the trial court found that there was no testimony from Williams recalling “Mr. Leavey from the standpoint of discussing his estate, the nature and extent of his estate, or whom the objects of his bounty were intending to be or to demonstrate that Mr. Leavey knew the sub stance of the will that he was executing.” The trial court further noted that there was no testimony about Leavey s demeanor or about who was present.
The appellate record in this case demonstrates that Eggeson offered no evidence of Leavey’s testamentary capacity when he signed the purported February 1987 will. As a result, Eggeson failed to meet her burden to establish a prima facie case of Leavey’s capacity, and the trial court properly excluded Leavey’s purported February 1987 will from probate.
Affirmed. | [
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Opinion by
Clogston, C.:
The Winfield Gas Company brought an action against the city of Winfield, to recover for rent of sixty lamp-posts, alleged to have been rented by plaintiff to defendant, at the yearly rent of $30 per lamp-post. The plaintiff claimed under a contract embraced in an ordinance passed by the city, a copy of which ordinance was attached to and made a part of its petition. The defendant demurred on the ground that the petition did not state a cause of action against it; which demurrer was overruled. To reverse this ruling, the defendant brings the case to this court.
The record contains a stipulation that the only question for consideration in the court below was, the construction to be given to § 1 of the ordinance attached to the plaintiff's petition; and that if the court construed the ordinance so as to make the city liable, as is claimed by the plaintiff, then the demurrer was to be overruled; but if the court construed the ordinance so as not to make the city liable for rent on any night when the moon gave sufficient light, then the demurrer was to be sustained. Said § 1 is as follows:
“Section 1. That in consideration of the benefit that will accrue to the city of Winfield by the construction of gas works, the laying of pipes, and the lighting of the streets, public buildings and places of said city, the city of Winfield hereby agrees to rent and does rent from William Whiting, his heirs, successors and assigns, for and during the term of twenty-one years, sixty lamp-posts, at an annual rental of thirty dollars for each lamp-post, payable in semi-annual installments, on the 15th day of January and the 15th day of July in each year. Said rental to commence as follows: As to the posts on Main street, when the posts there contracted for shall be furnished with gas, and ready for lighting; as to the balance, whenever a number of ten or more is ready for lighting, and the city notified of the same in writing; and for said rental said William Whiting, his heirs, successors and assigns, shall supply the necessary gas for said lamp-posts, and shall furnish a good gas light, and shall at his and their own charge attend to the proper lighting and extinguishing the lights; said lights to be kept burning during the entire year, from dark until 11:30 P. M., except when the moon shall furnish sufficient light: Provided, The city shall not be liable to pay rent for any lamp-post during any time light shall not be furnished by the same.”
The plaintiff company claimed that under this ordinance it was entitled to receive $30 per year for each lamp-post for whatever time it became necessary to have the lamps lighted, and that the contract was made with this understanding; while the defendant contended that by the proviso to said ordinance it was not to be liable to pay rent, except during the nights in which the lamps were lighted. The ordinance contains all the necessary elements upon which the plaintiff bases its claim, and is in harmony and consistent with its construction; and, were it not for the proviso added thereto, this claim would be tenable. But if it was the intention of the parties that the city should pay $30 a year rent for each lamp-post, and take no account of the nights in which the moon gave sufficient light, and the lamps by reason of said moonlight were not lighted, then why was the proviso added ?
In construing contracts the rule is, and ought to be, that full force and effect must be given to each and all provisions of a contract, if it can be done; and if under any theory of the case consistent with the entire contract, force and effect can be given to all its parts, that construction ought to be adopted; unless, on the other hand, by giving force and effect to the entire contract, the contract thereby becomes unreasonable and inconsistent with the nature and character of the matters under consideration, or in the minds of the parties at the time the contract was made, and then such construction must be given it as will most clearly carry out the express intention of the parties making the contract. Now to give this contract or ordinance the construction which plaintiff seeks for it, would be to entirely eliminate this proviso from the ordinance, because the ordinance would contain every element contended for by the defendant in error without it; while upon the other hand, to give the entire ordinance, including the proviso, force and effect, is to adopt the construction claimed by the defendant, plaintiff in error; and this is also seemingly consistent with the nature and character of the business about which the parties were contracting. The city was renting lamps for public lighting; it was contracting for light. Now what would be more reasonable than for it to add this proviso, that it was to pay for lights only when the lights would be a benefit to the city ?
■ The ordinance provides that the gas company is to keep the lamps lighted during every night in the year, from dark until 11:30 P. M., except such nights as the moon gives sufficient light. It became the duty of the plaintiff by the terms of this contract to light and extinguish the lamps. This would seem to give it the right to determine what nights the moon gave sufficient light, and what nights it was necessary to light the lamps. There would be no way of ascertaining or deter mining beforehand how many nights it would be necessary to have the lamps lighted. The contract does not provide that the lamps shall not be lighted on moonlight nights, but only on such- nights as the moon does not furnish sufficient light. In view of this, the city made a proviso, not knowing how many nights the lamps would be lighted, or necessary to be lighted. It placed this proviso at the end of the contract as a wise protection; and this court cannot say that this proviso, as a part of the contract, was placed there to have no effect or meaning.
It is therefore recommended that the case be reversed, and that the court below be directed to sustain the demurrer.
By the Court: It is so ordered.
All the Justices concurring. | [
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Pierron, J.:
This case turns on the classification of John Roose’s 1978 burglaiy conviction. In 2005, Roose was charged with an aggravated weapons violation under K.S.A. 21-4202(a)(2), which makes it unlawful to carry a pistol if you have previously been convicted of a person felony. The charge was based on Roose’s burglaiy conviction from 1978. After a bench trial on stipulated facts, Roose was convicted of an aggravated weapons violation. He now argues on appeal that his burglary conviction from 1978 was improperly characterized as a person felony.
The classification of burglary as a person or nonperson felony under the current version of the burglary statute depends on whether the structure burglarized is a dwelling, which looks to the use or intended use of the structure burglarized — not simply the type of structure. In 1978, the statute did not distinguish between person and nonperson burglary or burglary of a dwelling versus burglary of a nondwelling. See K.S.A. 21-3715 (Weeks). Although the evidence in Roose’s case indicated that he burglarized a “house” in 1978, no evidence suggested that the house was used or intended for use as a human habitation, home, or residence, which is the definition of dwelling. Because there was insufficient evidence to support the conclusion that Roose’s 1978 burglary conviction involved a dwelling, and was therefore a person felony, his conviction must be reversed.
On October 20, 2004, police officers spotted Roose going through a dumpster. When an officer approached Roose to ask what he was doing, the officer recognized him as a suspect in a previous window-peeking incident. During the encounter, the officer noticed what appeared to be a folded knife clip in Roose’s pocket. As a precaution, officers conducted a pat-down search of Roose, which revealed a handgun in his coat pocket. Roose was arrested on a weapons violation. It was later determined that he previously had been convicted of burglarizing a house in 1978. Roose was charged with an aggravated weapons violation under K.S.A. 21-4202(a)(2), which makes it unlawful for a person to carry a concealed pistol if that person previously has been convicted of a person felony. The prior felony referenced was the burglary conviction from 1978.
Prior to trial, Roose filed a motion to dismiss on the grounds that the complaint failed to charge a crime because his 1978 conviction could not be classified as a person felony. The State opposed the motion, and the district court adopted the State’s legal arguments in denying Roose’s motion to dismiss.
A bench trial was held on stipulated facts. The stipulated facts included details of the gun’s discovery and a copy of both the com plaint and journal entiy for the 1978 burglaiy conviction. Based on these facts, the district court found Roose guilty of an aggravated weapons violation. He was sentenced to 12 months’ probation, with an underlying prison term of 8 months.
Before reaching the merits of Roose’s claim of sufficiency of the evidence, two issues regarding the record should be addressed. First, the State asserts that Roose’s failure to include the stipulation of fácts in the record on appeal precludes any consideration of his sufficiency of the evidence argument. But Ro'ose’s reply brief notes that although the stipulation was originally omitted from the record, Roose’s attorney requested that the district court add it to the record. The district court added the stipulation, and it appears in volume VI of the record on appeal.
Second, there is some confusion surrounding which statute Roose was actually convicted under. Roose was charged under K.S.A. 21-4202, which deals with aggravated weapons violations. K.S.A. 21-4202(a) has two provisions — one dealing with individuals who have been convicted of a nonperson felony within the past 5 years and another dealing with individuals who .have been convicted of. a person felony at any point in time. The complaint in this case charged Roose with violating K.S.A. 21-4202(a)(2), the person felony provision; this portion of the statute charges an aggravated weapons violation against a person who violates K.S.A. 21-4201 and has also previously been convicted of a person felony. The journal entry in this case, however, states that Roose was convicted of an aggravated weapons violation based on a prior nonperson felony, in violation of K.S.A. 21-4202(a)(1). When the district court announced Roose’s verdict following his 'bench trial, it found him “guilty of aggravated weapon violation and violation of K.S.A. 21-4202(a)(l), as charged in Count 1 of the complaint.” This is somewhat ambiguous because Count 1 of the complaint charged Roose. under K.S.A. 21-4202(a)(2). At sentencing the court stated that Roose had been convicted of violating “K.S.A. 22-4202(a)(1).”
It appears the district' court simply misspoke and the misstatement was repeated in the journal entiy. The journal entry should be corrected.
When a conviction is challenged for sufficiency of the evidence, all the evidence must be reviewed in a light most favorable to the prosecution. There was sufficient evidence if the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007). “In its review, the court does not pass upon the credibility of witnesses or weigh conflicting evidence.” State v. Francis, 282 Kan. 120, 152, 145 P.3d 48 (2006).
As noted above, Roose was charged with one count of an aggravated weapons violation under K.S.A. 21-4202(a)(2), which states:
“(a) An aggravated weapons violation is a violation of any of the provisions of K.S.A. 21-4201 and amendments thereto by a person who:
“(2) has been convicted of a person felony pursuant to the Kansas laws or in any other jurisdiction which is substantially the same as such crime or has been released from imprisonment for such crime, and has not had the conviction of such crime expunged or been pardoned for such crime.”
The complaint for the aggravated weapons violation alleged that Roose’s prior person felony was his burglary of a “residence” in Leavenworth County. The complaint and journal entry in that 1978 case were included in the stipulation of facts. That 1978 complaint charged Roose with feloniously entering “a building, a house at 1914 Rose St, Leavenworth, Kansas.” There is no mention of it being a residence. The 1978 complaint also charged Roose with theft of several items of personal property, namely a television set, a camera, a pistol, cash, and a safety box belong to a particular person.
At the time of Roose’s 1978 conviction, burglary was defined as “knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” K.S.A. 21-3715 (Weeks). In 1978, burglary was a class D felony. There was no distinction between burglary of dwellings and nondwellings, and felonies were not distinguished as person or nonperson crimes at that time. The subsequent changes in the applicable statutes are the source of our difficulties.
Under the current statutory scheme, burglary is knowingly and without authority entering into a building, manufactured home, mobile home, tent, or other structure with the intent to commit a felony inside. If the building is a dwelling, the crime is classified as a person felony; if not, it is a nonperson felony. K.S.A. 21-3715. A dwelling is defined by K.S.A. 21-3110(7) as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” (Emphasis added.) Thus, under the current burglary statute, unlawful entry into a structure that is used or intended for use as a human habitation, home, or residence is a person felony. If the structure is not used or intended for use as a human habitation, home, or residence, it is a nonperson felony.
Under this current statutory language, simply describing the structure as a “house” does not indicate whether the structure is a dwelling and, thus, does not indicate whether the crime was a person or nonperson felony. Such a distinction depends on the actual or intended use of the structure. Indeed, the statute’s definition of dwelling as a building or “other enclosed structure” that is used or intended for use as a habitation, home, or residence indicates that any type of building can be a dwelling, not that certain types of buildings (such as a house) are always considered dwellings. This is a logical distinction because, as Roose points out in his brief, a house can be used as a place of business instead of as a dwelling and structures originally used for business or storage can be transformed into dwellings.
In Roose’s case, the State was required to prove all elements of the crime charged beyond a reasonable doubt, and one of those elements was a prior person felony conviction. See State v. Atkinson, 215 Kan. 139, 142, 523 P.2d 737 (1974) (“With respect to the firearm charge [under K.S.A. 1973 Supp. 21-4202,] evidence of a prior conviction is, of course, not only a material fact but an element of the offense.”). But the only specifics of Roose’s 1978 burglary conviction introduced into evidence was that it was of a house. There was no evidence or testimony as to what the house was used for or the owner’s intention. There was no evidence from which the district court, as factfinder, could have concluded beyond a reasonable doubt that the house was a dwelling. And without such a conclusion, there was no way to determine whether Roose’s 1978 conviction was the equivalent of a person felony. Accordingly, based on the plain statutory language and the stipulated facts in this case, there was insufficient evidence to convict Roose of an aggravated weapons violation. • -
It does not appear that Kansas courts have had the opportunity to address this issue in this context. But .courts have addressed whether older burglary convictions can be classified as person or nonperson felonies for criminal history scoring purposes. In State v. Alvis, 30 Kan. App. 2d 889, 53 P.3d 1232 (2002), the defendant challenged his sentence and argued that his two prior burglary convictions were incorrectly classified as person felonies. The record in Alvis showed that bodi of the burglary convictions involved houses that were under construction; both had doors, window's, and locks. However, the owner of one of the houses testified that he intended to move in within 5 days of the burglary, while the only other evidence involving the second house was that it had some drywall in place. The Alvis court held that based on''the owner s intent, there was sufficient evidence to conclude that the first house was a dwelling. But as to the second house, the cóurt stated: “The record is so lacking in information regarding the house’s condition that we cannot conclude the house qualified as a dwelling under K.S.A. 21-3110(7).” 30 Kan. App. 2d at 892.
Alvis involved the application of K.S.A. 2001 Supp. 21-4711(d), which dictates how prior burglary convictions are scored for criminal history purposes. A prior conviction is scored as a person felony if it was classified as a burglary as defined in K.S.A. 21-3715(a) (burglary of a dwelling); a prior conviction is scored as a nonperson felony if it was classified ás a burglary as defined in K.S.A. 21-3715(b) or (c) (burglary of a nondwelling or motor vehicle). The State is required to prove this classification by a preponderance of the evidence. K.S.A. 21-4711(d).
Other cases have applied this same statute and have allowed less evidence to be sufficient in determining that a burglary was of a dwelling/or criminal history scoring purposes. In Herrick v. State, 25 Kan. App. 2d 472, 478-79, 965 P.2d 844, rev. denied 266 Kan. 1108 (1998), the court found that a house that was being used for storage was still a dwelling because it “was intended for use as a home, although it was not being used that way at the time of the burglary.” This was the case even though the owner stated that the house was used for storage, the defendant knew no one was living in the house, and there were doors, windows, and pieces of wood strewn throughout the house. The court reasoned that, under the definition of dwelling found in K.S.A. 21-3110(7), as long as a building is intended for use as a human habitation, home, or residence, it is a dwelling even if it is not presently so used. 25 Kan. App. 2d at 478.
Other cases have likewise concluded that houses were necessarily dwellings, with little information other than the designation of the structure as a “house.” See State v. May, 39 Kan. App. 2d 990, 997, 186 P.3d 847, rev. denied 287 Kan. 768 (2008) (“By pleading guilty to [the burglary of two houses], May admitted that his prior burglaries were of dwellings.”); State v. Morehead, No. 97,960, unpublished opinion filed June 20, 2008, rev. denied 287 Kan. 768 (2008) (although the new, move-in-ready house was unoccupied, “it was clearly intended for such use” and therefore was a dwelling); State v. True, No. 90,890, unpublished opinion filed September 3, 2004, rev. denied 278 Kan. 851 (prior burglaries declared person felonies where evidence showed that properties were appraised as single-family, residential dwellings, and items taken were things typically found in a house).
The critical distinction that must be acknowledged between these cases and Roose’s case is the standard of proof. In all the other cases, the State was only required to prove that the structure in question was a dwelling by a preponderance of the evidence because the question was one of determining the defendant’s criminal history score. See K.S.A. 21-4711(d). But in Roose’s case, whether he committed a person felony was an element of the crime he was charged with, see Atkinson, 215 Kan. at 142, and, therefore, whether the structure he burglarized was a dwelling required proof beyond a reasonable doubt. “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). In contrast, proving guilt beyond a reasonable doubt means just that. In re B.D.-Y., 286 Kan. 686, 692, 187 P.3d 594 (2008) (“ ‘ “'No definition or explanation can make any clearer what is meant by the phrase “reasonable doubt” than that which is imparted by the words themselves.’ ” ’ [Quoting State v. Bridges, 29 Kan. 138, 141 (1883).]”). Thus, what might have sufficed in Herrick and the other cases where a house was found to be a dwelling simply because it was described as a house is not sufficient to prove beyond a reasonable doubt that Roose’s 1978 conviction would be classified as a person felony. Because the burglary statute is worded in such a way that a house could be a dwelling or not, under the facts of the stipulation it is impossible to conclude beyond a reasonable doubt that Roose’s 1978 conviction was the equivalent of a person felony when the only facts known are that it was a burglary of a house. Without such proof, there was insufficient evidence to convict Roose of an aggravated weapons violation.
Reversed. | [
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Brazil, J.:
Mark R. Maas appeals the trial court’s denial of his petition for writ of habeas corpus on the finding that his right to a speedy trial had not been violated.
Because, as stated by his attorney at oral argument, Maas has attempted to “cover every base,” a chronology of events might be appropriate.
On April 4, 1986, a jury found Maas guilty in two cases consolidated for trial of aggravated assault, terroristic threat, aggravated kidnapping, criminal trespass, and rape.
Prior to trial, on March 28, 1986, the trial court had denied his motion to dismiss based on the speedy trial issue.
On April 3, Maas filed his original petition for writ of habeas corpus alleging the speedy trial issue in the court of appeals.
On April 10, the court of appeals remanded it to the trial court for hearing.
On May 2, Maas filed the present petition for writ in the trial court. He also appeared for sentencing in the underlying criminal cases and was committed to Larned State Hospital in lieu of imprisonment, pursuant to K.S.A. 22-3430.
On May 9, Maas filed a notice of appeal in his criminal cases. He appealed directly to the supreme court pursuant to K.S.A. 22-3601(b)(l), citing his conviction of “one Class A felony.” Although not mentioned in the notice, K.S.A. 22-3601(b)(l) would also require that his class B felony conviction (rape) be filed direetly in the supreme court.
On May 14, the trial court announced from the bench that the present writ should be dissolved. The journal entry was filed on June 23. Since the writ had not issued, we construe the court’s order as denying the petition for the writ.
On. June 2, Maas filed his notice of appeal herein.
Before addressing the issues raised on appeal we feel compelled to consider two issues, one of which is jurisdictional.
K.S.A. 60-1501 provides in pertinent part:
“Subject to the provisions of K.S.A. 60-1507 any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever .. . may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place.”
This broad authorization is subject to an important limitation.
“The purpose of habeas corpus is to provide an efficient and prompt remedy to obtain freedom from illegal restraint, or from restraint imposed in the abuse of legal authority and not in the course of orderly legal processes. Thus, habeas corpus does not take the place of the motion for new trial to correct trial errors; nor is it a substitute for an appeal or motion for rehearing.” (Emphasis added.) 2 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-1501, p. 106 (1979).
Cases decided under K.S.A. 60-1507, while not directly on point, provide an additional rule that has some bearing on habeas corpus as well: points considered and decided on direct appeal cannot be considered in a K.S.A. 60-1507 proceeding, Kirk v. State, 220 Kan. 278, 552 P.2d 633 (1976), absent a showing some United States Supreme Court decision was not considered and might affect the decision as made on direct appeal. Caldrone v. State, 215 Kan. 351, 524 P.2d 228 (1974).
We note that K.S.A. 60-1501 is expressly subject to K.S.A. 60-1507, which pertains to remedies available to prisoners in custody under a sentence of a court. Although Maas had not been sentenced, he has been committed to Larned State Hospital pursuant to K.S.A. 22-3430, which provides in part:
“The defendant may appeal from any order of commitment made pursuant to this section in the same manner and with like effect as if sentence to a jail, or to the custody of the director of penal institutions had been imposed in this case.”
Under these authorities, it seems clear that Maas is attempting to use habeas corpus as a substitute for direct appeal since he presented the speedy trial issue to the court before his trial and included it as an issue in his notice of appeal from his conviction. In the joint request for a continuance of the brief filing deadlines in his direct appeal, the parties declared that the speedy trial question was one of the main issues in that appeal. Maas has had the issue decided against him twice by the trial court, once in his criminal case and again in his habeas corpus case. “As a general rule, a writ of habeas corpus . . . will not be granted where relief may be had ... by resort to another general remedy, such as appeal.” 39 Am. Jur. 2d, Habeas Corpus § 18, p. 190. Application of this general rule in our case is further supported by an old Kansas case where the court refused to consider the validity of an ordinance forming the basis of a criminal charge. The court noted “where the case in the lower court had not been disposed of, and where the regularly established procedure was still available to the party seeking redress, the orderly jurisdiction of the lower court . . . and the ordinary procedure for trial and appeal should not be interfered with through writs of habeas corpus . . . .” In re Will, 97 Kan. 600, 601, 155 Pac. 934 (1916).
We conclude that Maas is attempting to improperly use this extraordinary remedy as a substitute for direct appeal.
More importantly we question our jurisdiction to consider this appeal. Kansas appellate courts have only such jurisdiction as is provided by law. When the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982); State v. Shehi, 185 Kan. 551, 553, 345 P.2d 684 (1959).
As noted above, on May 9, 1986, Maas appealed his convictions directly to the supreme court, which has exclusive appellate jurisdiction pursuant to K.S.A. 22-3601(b)(1). Denial of this right to speedy trial is one of the main issues in that appeal.
Maas’ direct appeal was pending when this appeal was filed on June 2, 1986, and his direct appeal is still pending. We conclude that the supreme court has exclusive jurisdiction of the issues in the direct appeal and should also consider the appeal from the trial court’s denial of his petition for writ of habeas corpus.
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Buchele, J.:
This is an appeal of a workers’ compensation award rendered by the district court of Cloud County which partially denied an award for vocational rehabilitation against the respondent, St. Joseph Hospital of Concordia, and its insurer, St. Paul Fire and Marine. The administrative law judge, pursuant to a vocational evaluation, awarded claimant tuition in the amount of $395.00 and $4,450.00 for equipment expenses. The director affirmed this award. On appeal the district court affirmed the award for tuition but disallowed the award for the purchase of equipment.
The claimant raises the following issues for review:
1. Whether a vocational rehabilitation order made pursuant to K.S.A. 44-510g(e)(3) is appealable to the district court during the first twenty-six weeks of rehabilitation.
2. Whether the district court erred by setting aside the award for equipment.
The claimant, a 49-year-old maintenance worker, suffered a back injury on December 7, 1979, in the course of his employment with respondent. Claimant underwent surgery on May 8, 1980, and February 27, 1982, for the nonunion of the fusion. Claimant was never able to return to work. As a result of the back injury and surgeries, claimant has physical limitations, including difficulty in bending, lifting, sitting or standing for long periods. The administrative law judge issued an award of 60% permanent partial general bodily disability.
In August 1983, claimant underwent an evaluation by a vocational rehabilitation counselor, and a rehabilitation plan was developed to upgrade his skills in the saw-sharpening business and to purchase equipment to enable claimant to set up his own business in Concordia. Claimant then filed an application for vocational rehabilitation benefits, which was heard on December 11, 1984. Claimant testified that sometime in 1977 he started a saw-sharpening business as a hobby. His income in 1983 and 1984 from this business was about $2,000 per year. Claimant had received no formal training in saw sharpening. The administrative law judge approved the vocational rehabilitation plan and ordered respondent and its insurance carrier to provide $395 for tuition and $4,450 for equipment expenses.
The award was made pursuant to K.S.A. 44-510g(e)(3).. Claimant first challenges the district court’s jurisdiction to hear an appeal of this order. This issue is one of first impression in Kansas.
K.S.A. 44-510g(e)(3) provides, in substance, that if an injured employee is ineligible for vocational rehabilitation through state, federal or other public agencies, or if rehabilitation services are not available within a reasonable period of time, the director may order the employer to pay for such rehabilitation services. This statute further provides:
“Any such services to be provided at the expense of the employer under this paragraph (3), shall not extend for a period of more than twenty-six (26) weeks, except that in extremely unusual cases, after a hearing and the presentation of evidence, the director, by special order, may extend the period for not more than an additional twenty-six (26) weeks. The employer shall have a right to appeal to the district court any such special order by the director for any extension of the initial twenty-six (26) week period, within the time and in the manner provided in K.S.A. 44-556, and amendments thereto, and any such special order shall be stayed until the district court has determined the appeal. There shall be no right of appeal to the Kansas supreme court from a judgment of the district court sustaining or overruling any such special order of the director.”
The claimant’s argument is that a liberal statutory construction in favor of claimant, which workers’ compensation statutes are to be given, Bright v. Bragg, 175 Kan. 404, 264 P.2d 494 (1953), compels the conclusion that a rehabilitation award during the first twenty-six-week period is not appealable. Claimant argues that since the statute provides that a special order extending vocational rehabilitation services for a second twenty-six-week period is appealable, and no provision is made for an appeal during the first twenty-six weeks, an appeal is not permitted.
In general, an appeal from the director’s order is governed by K.S.A. 1985 Supp. 44-556(a), which provides:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact . . . .”
K.S.A. 1985 Supp. 44-556(c) provides:
“Any party to the proceedings may appeal from any findings or order of the district court to the appellate courts on questions of law.”
When courts are called upon to construe statutes, the legislative intent is to be gleaned from a general consideration of the statute as a whole. State v. V.F.W. Post No. 3722, 215 Kan. 693, 527 P.2d 1020 (1974). Courts are not permitted to consider only an isolated part of an act but are required to construe all parts together in pari materia. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983). Thus, the court must decide whether the legislature intended to carve out an exception to the general appeal statute, K.S.A. 1985 Supp. 44-556, for the initial twenty-six weeks of vocational rehabilitation.
An examination of the Workmen’s Compensation Act indicates that, when the legislature intended to make an exception to the general right of appeal, it did so expressly. For example, K.S.A. 1985 Supp. 44-534a, which provides for preliminary awards of medical and temporary total disability compensation, states:
“(a) . . . No such preliminary findings or preliminary awards shall be appeal-able by any party to the proceedings . . . .”
The policy behind foreclosure of the right of appeal for preliminary awards is to afford the injured employee immediate access to medical and necessary living expenses pending a full hearing. An employer and the insurance carrier are protected by a further statutory provision, 44-534a(b), which provides that, if prelimi nary awards are reduced or totally disallowed at the full hearing, the employer and insurance carrier will be reimbursed by the Workers’ Compensation Fund.
Our reading of 44-510g(e)(3) is that it is a narrow exception to 44-556, the general appeal statute. Its purpose is to limit the appealability of special orders extending vocational rehabilitation services beyond the initial twenty-six weeks to the district court. It is logical to limit judicial review to the district court in this instance, as a special order is actually a factual determination that there are unusual circumstances which warrant vocational rehabilitation in excess of twenty-six weeks.
An appeal of a vocational rehabilitation award made under 44-510g(e)(3) may, during the first twenty-six weeks, be made under the general appeal statute, 44-556. Had the legislature intended to foreclose the right of appeal during this period, it could have so provided. Further, there would appear to be no sound policy for eliminating the right of appeal. The need for vocational rehabilitation is not as immediate as the need for medical and living expenses.
The remaining issue is the award for tools and equipment in the amount of $4,450. Essentially, the district court held that 44-510g does not authorize an award to furnish tools and equipment as vocational rehabilitation, reeducation or training.
The general statutory provision for vocational rehabilitation under the Workmen’s Compensation Act is 44-510g.
Subsection (a) provides:
“A primary purpose of the workmen’s compensation act shall be to restore the injured employee to substantial and gainful employment.”
Subsection (d) provides:
“When . . . the employee is unable to perform work for which such employee has previous training, education, qualifications or experience . . . such employee shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary . . . .”
Subsection (e) provides:
“The director . . . may refer the employee to a qualified physician or facility for evaluation and for a report of the practicability of, need for, and kind of service, treatment, training or rehabilitation which is or may be necessary . . . .”
An examination of this statute reveals that the legislature has specified that an injured employee should receive vocational rehabilitation, including treatment, services, training and edu cation. “The concept of rehabilitation . . . includes all of the medical, therapeutic, social, and vocational services needed to return a worker to maximum physical recovery and to suitable gainful employment.” Hanna, Workmen's Compensation—Rehabilitation Benefits, 24 Kan. L. Rev. 649 (1976).
Kansas courts have not addressed the issue of whether the rehabilitation provisions of the Workmen’s Compensation Act include the purchase of equipment for use in a business to be established by an injured employee. In Cowan v. Josten's American Yearbook Co., 8 Kan. App. 2d 423, 660 P.2d 78, rev. denied 233 Kan. 1091 (1983), and Antwi v. C-E Industrial Group, 5 Kan. App. 2d 53, 612 P.2d 656, aff'd 228 Kan. 692, 619 P.2d 812 (1980), the court addressed cases which deal with employees who received vocational rehabilitation awards of tuition plus books for higher education. Antwi, 5 Kan. App. 2d at 54-55; Cowan, 8 Kan. App. 2d 423. Claimant contends that the award for books is analogous to the award for purchase of saw-sharpening equipment. We disagree.
The entire thrust of the rehabilitation provisions of the Workmen’s Compensation Act is on training. In Antwi and Cowen, books were a necessary element of the employee’s education. In the present case, the purchase of tools and equipment was not an element of claimant’s education, but was awarded to permit him to establish a business.
The difficulty with claimant’s position that tools and equipment should be compensable items under rehabilitation is that there is no logical place to begin or end. As respondent notes, if claimant’s arguments are accepted, an injured employee rehabilitated as a truck driver would be able to claim the costs of a new truck. We believe neither a liberal reading of the statute nor the policy behind it authorizes an award for equipment under a vocational rehabilitation plan.
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Abbott, C.J.:
This appeal arises out of sewer and street improvements in an improvement district within the City of Emporia.
The landowners appeal alleging the trial court erred in granting summary judgment to the City of Emporia, which had credited interest income from the investment proceeds of temporary notes to its general bond fund, and in holding the City was not arbitrary and capricious in assessing one-half the cost of an internal T-intersection to the landowners and increasing the percentage the landowner must pay in the final ordinance apportioning costs for the street between the City and the improvement district. The City cross-appeals alleging the court erred in granting summary judgment to the landowners on the question of whether interest payable with the first special assessment installment should be charged from the effective date of the ordinance or for an entire year.
The landowners in the Park Place Subdivision in the City of Emporia petitioned the governing body for street and sanitary sewer improvements under K.S.A. 12-6a04(2), of the General Improvement and Assessment Law of Kansas.
By separate resolution the sewer improvement cost was apportioned 100% to the improvement district and 0% to the City at large and the cost of the street improvement was apportioned 90% to the improvement district and 10% to the City at large. The total estimated cost of the improvements was $205,148.95 (sewer — $57,542.40 and street — $147,606.55).
Temporary notes in the amount of $205,000 were issued on September 1, 1982. The practice in Emporia at that time was to place the proceeds from temporary notes from all special improvement projects in a single “improvement fund” account. Idle funds in the improvement fund account were invested and interest earned. The interest income was not prorated among the individual improvement projects. When a project was completed, the City transferred any surplus in the improvement fund account to the “bond and interest fund” without segregating the monies to the respective improvement projects, thereby reducing the tax levy necessary to the City’s general bond obligations.
The projects giving rise to this appeal were completed as contemplated in the spring of 1983. In July, an ordinance was enacted levying assessments on the property in the improvement district. The landowners moved to set aside or modify the special assessments and the trial court granted summary judgment. This appeal follows.
a. Investment Income.
The landowners contend that interest earned from the investment of idle temporary notes proceeds should have been credited to the specific improvement project’s interest cost. They argue this practice results in the improvement district’s not being apportioned its true cost of the improvement when assessments are made.
Pursuant to the General Improvement and Assessment Law, K.S.A. 12-6a01 et seq., the governing body is authorized to levy special assessments against property in the improvement district based upon the cost of the improvement and the apportionment of that cost between the city at large and the improvement district. “Cost” is defined as “all costs necessarily incurred for the preparation of preliminary reports, the preparation of plans and specifications, the preparation and publication of notices of hearings, resolutions, ordinances and other proceedings, necessary fees and expenses of consultants and interest accrued on borrowed money during the period of construction together with the cost of land, materials, labor and other lawful expenses incurred in planning and doing any improvement . . .” K.S.A. 12-6a01(d).
The interest cost of the temporary notes is a “cost” within the meaning of the improvement and assessment law and is thus an item which may be assessed against the property owners in the improvement district. It is the landowners’ position, however, that the interest cost accrued must be offset by the interest income from the investment of idle temporary note proceeds. In short, the cost is a “net cost” and not a gross cost. K.S.A. 12-6a01(d) provides no answer to the question before us. As noted in Board of Education v. City of Topeka, 214 Kan. 811, 522 P.2d 982 (1974), the general improvement and assessment law is intended to provide a complete alternative to other methods provided by law whereby the governing body of the City undertakes improvements. Thus, the Kansas decisions purporting to construe “cost” to mean “net cost” are not particularly enlightening, since the word “cost” was in the context of other statutes and proceedings. Our Supreme Court has noted the inapplicability of other improvement laws when the proceedings were not brought under those statutes. See Dodson v. City of Ulysses, 219 Kan. 418, 426, 549 P.2d 430 (1976) (street improvements brought pursuant to the general paving law, K.S.A. 12-601 et seq.). Dodson prohibited using an unsubstantiated percentage estimate of construction cost to arrive at the cost of the improvement. Under the general paving statutes, cost of the improvement was interpreted to mean actual cost. And in Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976), “cost” as used in K.S.A. 13-10,115 does not include federal funds contributed by the government, but means the actual cost remaining to the City.
There is some support for the landowners’ position that the interest earned on the temporary notes should have been deducted from the interest cost of the temporary notes before assessment. In 14 McQuillin, Municipal Corporations § 38.140 (3d ed. 1985 Supp.), it is stated that a municipality may not assess property owners for the total cost of an improvement without reduction for funds received from other services, such as county, state, or federal agencies. The foreign authorities cited by the landowners in their brief apply this principle. Although none of the cases involve investment income, by analogy, interest earned should also be applied to reduce the total cost of an improvement as “funds from other sources.” See Bern Twp. Auth. v. Hartman et al., 69 Pa. Commw. 420, 451 A.2d 567 (1982); Boro. of Northampton v. Knauss et al., 27 Pa. Commw. 543, 367 A.2d 358 (1976).
Perhaps the most compelling argument in support of the landowners’ position is the treatment of interest income as expressed in the General Bond Law. K.S.A. 10-101 et seq. K.S.A. 10-131 addresses the manner in which interest income from investment of idle bond proceeds is to be accounted for: “The interest received on any such investment shall upon receipt thereof be set aside and used for the purpose of paying interest on the bonds issued or, when bonds have been approved at an election held under the general bond law, placed in a fund to be used for paying the cost of the project for which the bonds were issued.” Since the General Improvement and Assessment Law, Chapter 12, Article 6a, is silent on the interest issue, the provisions of the General Bond Law would govern. K.S.A. 10-125 states the general bond law is applicable to all issuances of municipal bonds unless specific provisions otherwise exist and conflict with the General Bond Law. As plaintiffs correctly point out, temporary notes are encompassed within the meaning of bonds. See First State Bank v. Bone, 122 Kan. 493, 252 Pac. 250 (1927). Based upon this authority, we conclude that the temporary notes, issued under the authority of 12-6al4 of the General Improvement and Assessment Law, and in which idle funds are invested, are governed by K.S.A. 10-131. Thus, the interest income must be set off against the interest expense of the temporary notes applicable to the specific project in question rather than a reduction to the interest expense for all improvement projects lumped together.
The City’s failure to do so was contrary to the provisions of K.S.A. 10-131 and therefore unlawful.
b. T-Intersection
The City’s written policy guidelines for constructing street improvements indicate that the cost of all intersections shall be borne’ by the City at large. Here, one-half of the cost of the cul-de-sac intersection was allocated to the City at large. The landowners contend that once the City adopted the written street improvement policy, it was bound to apply the cost allocation of intersections in accord with that policy. The landowners argue that failure to follow the policy constitutes an arbitrary assessment, and also argue an estoppel theory based upon the policy guidelines of the City.
The improvement project has one main subdivision road. It is a cul-de-sac, and it has a short cul-de-sac road running off of it. Thus, there are two T-intersections involved. The first intersection is located where the main subdivision road meets Lincoln Street. Lincoln Street was already in existence. The “stem” of the T ties into Lincoln Street. The expense involved is the cost of tying the main subdivision road into Lincoln Street. The second T-intersection is where the long cul-de-sac formed another T-intersection with the short cul-de-sac.
The landowners cite no cases that require the governing body to adhere to adopted policies when contravention of the policy is not in violation of the state statutes. K.S.A. 12-6a02 permits the governing body to assess all or any part of the cost of the improvement to the improvement district. And, pursuant to K.S.A. 12-6a07, the City at large may be allocated up to 95% of the cost of an improvement. “Policy guidelines” fall short of being an enactment of law and are not the equivalent of a statute. K.S.A. 12-6a07 is superior to any improvement policy the City may adopt. See Halford v. City of Topeka, 234 Kan. 934, 677 P.2d 975 (1984).
The landowners have not demonstrated that the cost allocation is disproportionate to the benefit conferred by the improvement. The City takes the position that, because of the configuration of the roads involved, at least one-half of the T-intersection is a continuation of a roadway and, thus, by paying one-half the cost, the City is, in essence, paying the entire cost of the intersection. K.S.A. 12-6a02 only limits the governing body’s allocation of costs in proportion to special benefits conferred. We are of the opinion the allocation of one-half of the cost of the T-intersection, under the facts of this case, is not arbitrary.
Benson v. City of DeSoto, 212 Kan. 415, 510 P.2d 1281 (1973), cited by the landowners in support of their estoppel argument, is not persuasive. In Benson, the City was estopped from asserting the invalidity of its own ordinance enacted to rezone the subject property. In this case, the City does not contend that its improvement policy is invalid; rather, that the City is not bound to follow that policy so long as the City’s conduct or actual practices do not conflict with the applicable statutes. Finally, the landowners have not demonstrated that they relied on the City’s improvement policy. At no time in the proceedings did the City represent the cost allocation of the intersection to be pursuant to its “policy.” We do not find reversible error.
c. Percentage Allocation of Costs
This issue raises the variance in the percentage allocation of costs made between the resolution, which authorized and ordered the street improvement project, and the assessment ordinance, which was enacted for the levy of special assessments against the affected property. The resolution apportioned the costs of the street improvement as 90% to the improvement district and 10% to the City at large, which is the apportionment of costs requested in the petition for the proposed street improvement.
When the project was completed, the City enacted an ordinance levying the special assessments and apportioned the actual cost of the paving project 91.4% to the improvement district and 8.59% to the City at large. (Our computations indicate the percentage to be 91.57% and 8.43%.)
The landowners contend that the City was bound by the cost allocation percentages expressed in the resolution and could not change the percentages in the assessment ordinance. A subsequent change, they argue, is arbitrary and capricious action by the City. In support of their position, they refer to the language in K.S.A. 12-6a09(a) indicating that the assessment rolls, upon completion of the improvement project, are “to be determined in the manner set forth in the resolution . . . provided for in K.S.A. 12-6a04.”
The City argues that the distinction between a resolution and an ordinance is that the ordinance prevails over a resolution. In addition, the City contends if it could not change the matters addressed in the resolution, there is no need to provide notice and hearing to the property owners to pass upon objections to the special assessments levied by the enactment of the ordinance. K.S.A. 12-6al0. Finally, the City contends the language in 12-6a09(a) cited by landowners refers only to the method of assessment and not the percentage allocation of costs of the project.
The street improvement project in the instant case was initiated by petition of all the landowners pursuant to 12-6a04(2). In accordance with that process, the City adopted its resolution (without notice and hearing) authorizing the paving project, and further providing in the resolution the estimated cost of the project, the improvement district, the method of assessment, and the apportionment of the project cost between the improvement district and the City at large. The method of assessment set forth in the resolution was based upon the appraised valuation of each lot in the subdivision, as permitted by K.S.A. 1985 Supp. 12-6a08. Upon completion of the paving work, the proposed assessment roll was prepared and notice published of a hearing of the special assessments to be levied. At this hearing, objections to the proposed assessments were considered. 12-6a09. There is no indication in the record before us whether the plaintiffs appeared at this hearing. After consideration of objections and any amendments to the proposed assessments, the governing body, by enactment of the ordinance, levied the special assessments. 12-6al0.
The ultimate question under this procedure is whether the governing body is bound by its earlier resolution and the find ings contained therein. K.S.A. 12-6a09 states that the assessments are “to be determined in the manner set forth in the resolution.” The City’s interpretation of this language apparently means that only the method of assessment specified in the resolution may not be subsequently changed by ordinance. We do not read the statute in this manner. Not only does the statute contemplate the method of assessment, it also requires the area of the improvement district, the nature of the improvement, and the apportionment of costs to be the same as provided in the resolution. All of these components enter into the computation of the special assessment and, accordingly, determine the manner set forth in the resolution. Contrary to the City’s argument that the hearing and eventual assessment ordinance would be pointless if the resolution must be followed, there could be objections to erroneous calculations, valuations assigned to the affected lots, areas to be included in the improvement district, and even the actual costs incurred in the improvement project.
Case law on this question is not abundant. In at least one instance, however, Kansas has upheld assessments only to the extent that they come within the limits prescribed by the original resolution. See Kansas Town Co. v. City of Argentine, 5 Kan. App. 50, 47 Pac. 542 (1896), aff'd 59 Kan. 779 (1898). In Kansas Town Co., property owners of lots situated outside the improvement area under the resolution, but within the improvement area under the ordinance, were relieved of the assessment. The entire ordinance levying the assessment was not invalid, but the ordinance was enforced only to the extent that it was in conformity with the resolution.
Finally, if the legislature intended the governing body to be bound by only the method of assessment specified in the resolution, it could have used language to that effect. K.S.A. 12-6a04(l), in providing for notice, uses the language “proposed improvement district,” “proposed method of assessment,” and “proposed apportionment of cost.” The City is thus required to make findings by resolution as to “the boundaries of the improvement district,” “the method of assessment,” and “the apportionment of cost.” In this case the procedure used did not require notice and hearing, but 12-6a04(2) is applicable and requires the same findings and resolution as set forth above. By not using the language “proposed apportionment of cost” after having used “proposed” in the same paragraph, the legislature demonstrates its intent that the resolution be binding, not only as to the boundaries and method of assessment, but also as to the apportionment of cost.
Thus, the City is bound by the resolution and the trial court erred in granting summary judgment to the City on this issue.
d. Cross-Appeal
The question presented is the amount of interest to be included in the first assessment installment.
K.S.A. 12-6al0 provides, in pertinent part: “Interest on the assessment between the effective date of the ordinance levying the assessment and the date the first installment is payable shall be added to the first installment. The interest for one year on all unpaid installments shall be added to each subsequent installment until paid.”
The landowners argue that, under this statute, the City erroneously assessed a full year’s interest (1983) with the first installment. The City contends a full year’s interest was both permitted by 12-6al0 and necessary under K.S.A. 10-114 in order for the City to meet its bond obligations incurred as a result of the improvement project.
The trial court agreed with the landowners’ position and determined that the first assessment installment overcharged interest to the landowners by providing for a full year’s interest. We agree with the trial judge. 12-6al0 provides that interest on the first installment commences running on the effective date of the ordinance (i.e., the date of publication). A full year’s interest for the first installment would be appropriate under 12-6al0 only if the effective date of the ordinance corresponded with the beginning of the year for general property tax purposes. In this case it did not. The ordinance was published on July 16, 1983. This is the effective date from which interest should have been computed.
The proviso following the language in 12-6al0, determining when interest starts to accrue, does not aid the City’s argument. It merely states: “Provided, All of the installments, together with the interest accrued or to accrue thereon, may be certified by the city clerk to the county clerk in one instrument at the same time, and such certification shall be good for all of the installments, and the interest thereon payable as special taxes.” This provision does no more than to eliminate the necessity of having the city clerk certify each annual assessment installment for collection. Instead, the total special assessments for an improvement can be certified in one document, at one time.
The City also argues that K.S.A. 10-114 permits it to include a full year’s interest in the first installment. If applicable, 10-114 does not apply to the facts of this case, at least not to the record before us.
The relied upon language of 10-114 states: “The ordinance apportioning such costs may provide for the collection of two installments with not to exceed interest for two years, or one installment and interest for one year or more, in the first year in which such assessment is to be collected, if the bonds for such improvement and interest on the same mature in such manner as to require such levy.” (Emphasis supplied.)
K.S.A. 10-114 does not authorize the governing body to assess interest before the ordinance is enacted and include it in the first payment. In addition, there is nothing in the record before us indicating when general obligation bonds were issued and sold to finance the improvement cost apportioned to the City at large. Thus, there is no way to determine whether the maturity date of the bonds necessitates such a levy. The City has not met its burden of showing error.
Affirmed in part, reversed in part, and remanded. | [
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Abbott, C.J.:
This is a consolidated appeal of Thaddeus Jones, John Allen Purdy, and Thanh Van Pham, who are contesting the court’s recommendation concerning restitution to the State of Kansas for costs incurred in apprehending them after their escape from the Kansas State Penitentiary at Lansing.
At approximately 1:00 a.m. on September 24, 1984, five prisoners escaped from Kansas State Penitentiary (KSP). Jones, Purdy, and Pham were serving life sentences for first-degree murder. The Department of Corrections and other state and local law enforcement agencies instituted emergency procedures in order to apprehend the escapees.
The escapees separated into two groups. At 6:00 p.m. on September 26, 1984, Jones was captured in Kansas City, Kansas. A search of the area where Jones was captured resulted in the capture of two of the other escapees not involved in this appeal. Some six hours later, Purdy and Pham were captured while walking along a highway approximately five miles south of the KSP.
The three pled guilty to the charge of aggravated escape from custody (K.S.A. 21-3810). As a condition of early release or parole pursuant to the provisions of K.S.A. 1985 Supp. 22-3717(k), restitution to the State of Kansas in the amount of $5,136 for each offender was recommended by the trial court.
The restitution figure was based on the presentence investigation report which states in pertinent part:
“1,653 man hours were required in apprehending these escapees. This cost the Kansas Department of Corrections $25,680.46. The Kansas Department of Corrections has requested restitution on this money loss from their budget.”
The court services officer then divided the $25,680.46 figure by five (the number of escapees) and recommended restitution in the amount of $5,136 each. The trial judge recommended restitution in that amount. Counsel for each of the defendants objected. However, their evidentiary objections were, at best, overly broad and vague.
On appeal, defendants contend that the costs expended by the Kansas Department of Corrections to apprehend an escaped prisoner are not properly reimbursable, and that since all of the defendants are indigent, it is an abuse of discretion to recommend they pay such a large sum as restitution.
Since the recommendation of restitution by the trial court in this case, the Kansas Supreme Court has made it clear that a trial court may not sentence a defendant to imprisonment in an institution and also require the defendant to pay immediate restitution. See State v. Bowers, 239 Kan 417, 721 P.2d 268 (1986); State v. McNaught, 238 Kan. 567, 588-89, 713 P.2d 457 (1986); State v. Chilcote, 7 Kan. App. 2d 685, 689-90, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982). The journal entry should clearly state that the amount and manner of restitution ordered is not immediate, and that the information is being provided for the benefit of the Kansas Adult Authority.
Our Kansas Supreme Court has considered K.S.A. 1985 Supp. 21-4610 which grants the trial court authority to impose conditions of probation or suspended sentence and to order the defendant to comply with certain conditions. Among those conditions is a provision concerning an aggrieved party, which reads in relevant part:
“(4) In addition to any other conditions of probation or suspension of sentence, the court shall order the defendant to comply with each of the following conditions:
“(a) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court, unless the court finds compelling circumstances which would render a plan of reparation or restitution unworkable . . . (Emphasis supplied.)
The Kansas Supreme Court interpreted the meaning of “aggrieved party” in State v. Yost, 232 Kan. 370, 374, 654 P.2d 458 (1982), rev’d on other grounds State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), and stated:
“[L]egislative history was of no assistance in resolving how our statute should be interpreted. Neither do we come up with any full answer by considering rules of statutory construction. K.S.A. 21-4610 begins by giving the trial judge broad powers in probation matters. There can be no question but that the statutory intent is for broad interpretation. Also, the law is clear enough that ‘[t]he fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute.’ Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 630, 629 P.2d 187 (1981).
“Immediately, however, we face the fact that the broad grant of authority is ‘(1) Except as required by subsection (4).’ It is in section 4 that we have the limitation of restitution ‘to the aggrieved party.’ ”
We have no hesitancy in stating that the State of Kansas or any other governmental unit, be it local, county, or state, can be an aggrieved party. We have no doubt that the statute would allow the State to recover for physical damages caused by the prisoners in the escape attempt.
The bottom line here is whether the legislature intended the statutory language set forth above to apply to the costs of capturing an escaped prisoner.
If a private citizen is the victim of a crime, would the statute as drawn authorize a trial judge to order the defendant to pay the investigation expenses? We think not. Likewise, it does not appear to be the intent of the legislature that when the State of Kansas is the victim that investigative costs and costs of apprehension be assessed against the defendant.
In the Yost case, 232 Kan. at 374, the Kansas Supreme Court said that the legislature intended a broad interpretation of the statute in question. Giving the statute a broad interpretation, we are of the opinion the legislature did not intend that the manpower costs incurred to capture an escaped prisoner be subject to a court order that a defendant reimburse the State pursuant to either 21-4610(4)(a) or 22-3717(k).
Having reached that conclusion, the other issues are moot. We do comment that a trial judge is not bound by strict rules of evidence in ordering reparations or restitution pursuant to 22-3717(k). However, the defendant must be given an opportunity, within reason, to question how the sums ordered are calculated. No clear request was made in this case, and the objection made was somewhat vague. For example, upon proper and timely objection or request, the defendant would be entitled to know whether employees other than Department of Corrections employees were included and, if so, who employed them; the defendant would be entitled to know whether the figures were actual or estimated and whether the figures included persons who would have been on duty in any event. These are but a few examples and are not meant to be all-inclusive. The same principles would apply to all cases under 21-4610(4)(a).
An attorney representing a defendant is expected to act in good faith in challenging restitution or reparations; failure to act in good faith or to make an adequate investigation could result in adverse consequences to the client, or to both the client and attorney. The courts must give an attorney adequate time, opportunity, and the necessary tools to make a good faith challenge to alleged damages and losses claimed by a victim.
Reversed and remanded with directions to vacate that part of the court’s order recommending restitution for man hours spent in capturing the escapees. | [
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Meyer, J.:
Plaintiffs, Erma and Kesner Bryan, appeal the district court’s ruling that their negligence action is barred by the statute of limitations. We affirm.
On December 27, 1980, plaintiffs sustained personal injuries and property damage in an automobile accident with the defendant. The defendant’s car was insured by State Farm Mutual Automobile Insurance Company (State Farm).
State Farm filed an interpleader action in Sedgwick County District Court on July 2, 1981, naming the Bryans and several other individuals injured in the accident as claimants to its policy. Thereafter, on September 7, 1981, State Farm paid into the court $100,000.00, its policy limits for personal injuries.
On December 31, 1981, the Bryans filed a motion to disburse the interpleaded funds. Although the Bryans had never filed a responsive pleading in the interpleader action, on January 8, 1982, the Sedgwick County District Court ordered the inter-pleaded funds to be disbursed in accordance with the claimants’ stipulated damages and dismissed all claims of the claimants against State Farm.
The Bryans first asserted a claim for property damages in the instant action. They filed their petition in this action in Butler County on December 27, 1983, exactly three years after the accident. Thereafter, the Bryans filed a motion for partial summary judgment on the issue of whether the statute of limitations in this case was tolled by the provisions of K.S.A. 40-275.
The- district court denied the Bryans’ motion for summary judgment, holding that K.S.A. 40-275 tolled the statute of limitations until September 8,1981, the date State Farm paid its policy limits into court; the court thus held the statute of limitations expired two years later on September 8,1983, and that plaintiffs’ action was barred by the statute of limitations.
The trial court impliedly held, over defendant’s objection, that the statute-tolling provision of K.S.A. 40-275 applies when an insurer has made payments in an interpleader action. We hold that, although the trial court correctly found plaintiffs’ action to be barred by the statute of limitations, it incorrectly believed that K.S.A. 40-275 applied to this action. The trial court’s decision, correct although for the wrong reason, should nonetheless be affirmed. See Farmers State Bank v. Cooper, 227 Kan. 547, 556, 608 P.2d 929 (1980).
K.S.A. 40-275 provides:
“No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person of medical expenses, loss of earnings and other actual out of pocket expenses, because of an injury, death claim, property loss or potential claim against any person, firm, trust, or corporation, shall be admissible into evidence as an admission against interest or admission of liability by such party or self insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event. . . . Provided further, That the period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder.” (Emphasis added.)
Plaintiffs contend State Farm’s interpleader action was a payment as “an accommodation” within the meaning of K.S.A. 40-275 and that the statute-tolling provision quoted above applied to avoid the bar of the statute of limitations. Plaintiffs’ reliance on the tolling provision of K.S.A. 40-275 is misplaced. We conclude the statute-tolling provision of K.S.A. 40-275 does not apply to the facts of this case.
The funds disbursed to the Bryans in the Sedgwick County interpleader action could only toll the statute of limitations within the contemplation of K.S.A. 40-275 if those payments were made by State Farm “as an accommodation to” the Bryans. Lytle v. Pepsi Cola General Bottlers, Inc., 8 Kan. App. 2d 332, Syl. ¶ 2, 656 P.2d 786, rev. denied 233 Kan. 1092 (1983). State Farm’s interpleader action is not an “accommodation” as the term is used in K.S.A. 40-275.
The Lytle court defined the meaning of the term “accommodation” as follows:
“The generally accepted meaning of the term ‘accommodate’ as used in the context of [K.S.A. 40-275], is ‘to help’ or ‘to do a service or favor for’ someone (Webster’s New World Dictionary 9 [2nd Coll. ed. 1974]).” Lytle, 8 Kan. App. 2d at 335.
Typically, a payment as an accommodation by an insurer involves the insurer providing monetary assistance to the injured party during the pendency of his claim. Lytle, 8 Kan. App. 2d at 335.
On the other hand, interpleader is a joinder device by which a number of claimants against a single fund may be joined in one action, and may there assert and litigate their claims against the fund. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 336, 624 P.2d 971 (1981). “Interpleader protects the stakeholder [in this case, State Farm] from multiple suits, and from determining at its peril the validity and priority of disputed claims; it also protects the claimants by bringing them together in one action so that a fair and equitable distribution of the fund may be made.” Club Exchange Corporation v. Searing, 222 Kan. 659, 664, 567 P.2d 1353 (1977). Therefore, the insurance company paying funds into court pursuant to court order in an interpleader action is not making payment “to accommodate” or “to help” or “to do a service or favor for” the interpleader claimants; rather, it is protecting itself from multiple vexation against a single fund and from determining at its own risk the amount, if any, each claimant is due.
According to the Lytle court, the purpose of the statute-tolling proviso of K.S.A. 40-275 is “obviously . . . to protect an injured party who receives advance or partial payments. It prevents a party from negotiating with the injured person and making partial payments until the statute of limitations has run and then refusing further negotiation or payment, leaving the injured person without complete recovery.” Lytle, 8 Kan. App. 2d at 337. Nothing in the record even suggests that State Farm used the interpleader action to accomplish such ends.
In summary, we conclude that State Farm’s interpleader action did not constitute a payment as an accommodation within the meaning of K.S.A. 40-275, and that statute does not apply herein. Consequently, plaintiffs’ action, filed December 27, 1983, exactly three years after the accident, is time-barred. The trial court did not err in so concluding.
Additionally, even if we assume K.S.A. 40-275 applied in the interpleader context, we believe that the statute of limitations would have commenced on September 7, 1981, the date State Farm paid its policy limits into the court. The rule in Kansas is that an insurer in an interpleader action is discharged from liability under an insurance policy upon paying to the clerk of the district court the full amount of its policy. Guy v. Modern Woodmen, 128 Kan. 745, Syl. ¶ 2, 280 Pac. 756 (1929). Because the insurer is discharged upon paying the interpleader fund into the court, it follows that payment is “made” in the interpleader context when the insurer makes such payment to the court. See Dugas v. American Surety Co., 300 U.S. 414, 425, 81 L. Ed. 720, 57 S. Ct. 515 (1937).
In summary, we conclude that, assuming K.S.A. 40-275 applies herein, State Farm “made payment” within the meaning of that statute when it paid its policy limits into the court. This occurred on September 7, 1981, more than two years before the plaintiffs filed suit herein. Therefore, assuming arguendo K.S.A. 40-275 operates in the interpleader context, we conclude that it does not save plaintiffs’ action.
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Briscoe, J.:
Ronald Miller was injured in a one-car accident while a passenger in a vehicle driven by Mark Gober. Miller sued both his own insurer, Safeco Insurance Co. of America (Safeco), and Gober. The trial court sustained Safeco’s motion for summary judgment and Miller appeals.
Gober was insured at the time of the accident with liability coverage in the amount of $50,000 per person for bodily injury. Miller claimed he suffered damages for bodily injuries in excess of $50,000 and that Safeco issued a policy to Miller which, as a matter of law, must provide underinsured motorist coverage in the amount of $300,000 by virtue of K.S.A. 40-284. Both Safeco and Miller filed summary judgment motions. In granting Safeco’s summary judgment motion, the trial court adopted Safeco’s argument that the requirements of K.S.A. 40-284 have no application because the Safeco policy was issued to Miller while he was a resident of Maryland and, therefore, was not “delivered or issued for delivery” in Kansas.
Before we can address whether the trial court erred in granting Safeco’s motion for summary judgment, we must determine whether the memorandum decision granting Safeco’s motion is an appealable order. The procedural scenario relevant to this inquiry begins on September 7, 1984, when the trial court sustained Safeco’s motion for summary judgment in a memorandum decision. The trial court followed that memorandum with a letter dated September 13, 1984, indicating that the memorandum decision would serve as the journal entry. Miller filed his notice of appeal on September 24, 1984.
On September 27, 1984, the trial court dismissed the suit against Gober with prejudice. Gober’s settlement with Miller in the amount of $50,000 in exchange for a release from Miller prompted this dismissal. Miller did not filé a notice of appeal after Gober was dismissed from the suit.
Is the journal entry granting Safeco summary judgment an appealable order? Miller filed his appeal after the trial court had sustained Safeco’s motion for summary judgment, but before the trial court had disposed of Miller’s other claim against Gober. When a trial court, in an action involving multiple parties, expressly determines that there is no reason for delay and directs the entry of a final judgment against one of the parties pursuant to K.S.A. 60-254(b), the judgment may be appealed as a matter of right under K.S.A. 60-2102(a)(4). Patterson v. Missouri Valley Steel, Inc., 229 Kan. 481, 484, 625 P.2d 483 (1981). The order sustaining Safeco’s motion for summary judgment, however, was not a final judgment as the trial court did not issue a certificate as required by K.S.A. 60-254(b):
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Millers appeal is premature and must be dismissed unless it can be saved under Supreme Court Rule 2.03, 235 Kan. lviii:
“A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(b).”
A close reading of Rule 2.03 and the cases interpreting the rule leads us to the conclusion that Rule 2.03 cannot save an interlocutory appeal filed without K.S.A. 60-254(b) certification. In Carson v. Eberth, 3 Kan. App. 2d 183, 186, 592 P.2d 113 (1979), this court clarified the purpose of Rule 2.03:
“The purpose of this rule and of its predecessor, former Rule No. 16 (214 Kan. xxxiii), is to avoid the result reached in Roe Village, Inc. v. Board of County Commissioners, 195 Kan. 247, 403 P.2d 970 (1965). There a notice of appeal was filed within thirty days of the trial court’s memorandum decision but before judgment was entered by journal entry; no notice of appeal was filed after judgment was entered. The court said ‘[a]n appeal from a judgment not yet rendered presents nothing for judicial review.’ 195 Kan. at 250. The result was the dismissal of the appeal for lack of jurisdiction, even though the record and briefs had been filed and the parties had argued the merits.
“Rule No. 2.03 serves as a savings clause; the overly cautious appellant who files his notice of appeal for fear his appeal time is running is protected from the Roe Village result. The last sentence of the rule, quoted above, provides the mechanics. In effect, the notice of appeal lies dormant until, such time as judgment is entered pursuant to K.S.A. 60-258. Under the rule it then has the same effect ‘as if the notice of appeal had been filed simultaneously with the actual entry of judgment.’ ”
Applying Rule 2.03 here, the notice of appeal did not qualify as a “premature” notice of appeal under the Rule. Although Miller’s notice of appeal filed on September 24, 1984, was filed prior to the entry of a final judgment, absent certification under K.S.A. 60-254(b) the subsequent final judgment entered in the case, even when coupled with Rule 2.03, cannot work to save this appeal. We lack jurisdiction over an appeal from an interlocutory order where the trial court has not certified that there was no just reason for delay and has not expressly directed entry of judgment pursuant to K.S.A. 60-254(b).
After Miller filed his notice of appeal on September 24, 1984, Gober was dismissed with prejudice by a journal entry filed three days later on September 27, 1984. The journal entry granting Safeco summary judgment became a final judgment subject to appeal on that date. A final judgment from which no appeal was taken does not retroactively validate a premature notice of appeal from an interlocutory order granting summary judgment to one party. To extend Rule 2.03 to these facts would effectively nullify the purpose of K.S.A. 60-254(b). Rule 2.03 is limited to those situations where the notice of appeal is filed after the time the decision is announced, but before a final judgment is entered pursuant to K.S.A. 60-258. The Rule does not save an appeal where the notice of appeal is filed from an interlocutory decision which later becomes part of the final judgment disposing of all issues in the litigation. See United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980).
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Per Curiam:
In this Kansas Open Meetings Act (KOMA) case, K.S.A. 75-4317 et seq., plaintiff Charles E. Stevens appeals from a district court order declining to enjoin defendant City of Hutchinson from purported violation of certain provisions of the KOMA. The City cross-appeals from an order issuing a writ of mandamus requiring that it list on its agenda certain topics to be discussed. We affirm both appeals.
The facts are not in substantial dispute, so we dispense with their recitation.
On appeal, Stevens first argues the trial court abused its discretion in refusing to issue a writ of mandamus after it had found the city commission technically violated K.S.A. 75-4319(a) and (b) by holding an improperly closed executive session on June 22, 1982. The City has conceded the impropriety of the closed session. Accordingly, we confine our consideration of the issue to whether the trial court abused its discretion in failing to provide legal redress. We believe not.
“Technical violation” is a term of art adopted by courts in discussing KOMA violations. In a recent opinion of this court in a KOMA case, it is stated that “our courts will look to the spirit of the law, and will overlook mere technical violations where the public body has made a good faith effort to comply and is in substantial compliance with the KOMA, and where no one is prejudiced or the public right to know has not been effectively denied.” Stevens v. Board of Reno County Comm’rs, 10 Kan. App. 2d 523, 526, 710 P.2d 698 (1985), citing Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975); and Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978). Thus, in Stevens, our court upheld a summary judgment in favor of the County where, although County Commissioners had improperly discussed county business during a recess, it was shown the discussion was not prearranged, no binding action was taken, and the recess was not used as a subterfuge to thwart the policy of the act.
In this case, it was uncontroverted that no formal, binding action was taken at the closed session. Moreover, it was a question of fact whether the commission willfully violated K.S.A. 75-4319 in holding a closed session or whether the commissioners utilized the closed session as a subterfuge. See Stevens v. Board of Reno County Comm'rs, 10 Kan. App. 2d at 525. We have reviewed the record and hold that the testimony of the City Commissioners and manager that they acted in good faith amply supports the trial court’s finding that any violation was merely technical.
That said, it follows that the trial court did not abuse its discretion in declining to issue an injunction or writ of mandamus. As the City points out, a writ of mandamus would not be appropriate to redress a past violation by the Commission. See K.S.A. 60-801. If any relief were warranted, injunctive relief would be more closely tailored to the form of redress Stevens seeks. See K.S.A. 60-901. However, there is no evidence in this case to show the Commissioners routinely convened closed sessions for improperly stated reasons, or that they would do so in the future. See Stevens v. Board of Reno County Comm'rs, 10 Kan. App. 2d at 525. Therefore, we cannot say that “no reasonable man would take the view adopted by the trial court.” Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984).
Second, Stevens argues the trial court erred in refusing to find certain actions and behavior of City Commissioners as violative of the KOMA. Specifically, he contends, among other things, that members speak too softly and do not allow the audience to view the exhibits and documents being discussed. The City, on the other hand, argues that the KOMA does not speak to acoustics or decibels, for example, and that, in any event, the writ of mandamus Stevens seeks would be inappropriate. We agree in part with both parties.
First, it is true that the KOMA does not specify at what decibel level commissioners must speak. However, the KOMA hallmark is a meeting “open to the public”; and if a meeting is at such an inconvenient location or in a room so small as to make it inaccessible for public attendance, the meeting might effectively be considered improperly closed under the KOMA. See, e.g., Smoot & Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L. J. 241, 263 (1981); Att'y Gen. Op. No. 79-253.
Whether a meeting is “open” is, however, a question of fact. In this case, Commissioners testified that the public was welcome to view all documents and that no one, including Stevens, had ever been refused permission to approach. Moreover, there was no evidence to show the Commissioners’ actions or behavior was a subterfuge to prevent the public from hearing or seeing. Therefore, although we will not say that such complaints as Stevens makes would never be cognizable under the KOMA, we agree that the evidence supports the conclusion that the meetings in question were “open” and in substantial compliance with the Act. Accordingly, the trial court did not err in declining to issue the requested equitable relief.
Having disposed of Stevens’ contentions, we turn to the City’s cross-appeal.
The City’s major complaint is that the trial court abused its discretion in ordering that a writ of mandamus issue to compel the City to “provide notice of the subjects to be discussed at any study sessions to be held by the City Commission in advance of the session by utilizing the method of notice employed for formal meetings.” Specifically, the City contends that (1) mandamus is improper since the KOMA does not clearly establish a duty to provide an agenda; and (2) the trial court’s order erroneously prevents Commissioners from discussing items not listed on the agenda. Stevens counters that the trial court’s ruling does not prevent Commissioners from discussing unlisted topics; rather, it merely requires that if a public body subject to the KOMA prepares an agenda, all topics to be discussed known at the time of the preparation should be included. We agree with Stevens.
At the threshold, we note that giving notice of the date, time and place of a meeting and preparing an agenda relating to the business to be transacted are two separate elements of the KOMA that should not be confused. See K.S.A. 1985 Supp. 75-4318(b) and (d); Att’y Gen. Op. No. 79-218. Thus we construe the trial court’s order to mean not that the City must furnish “notice” of the topics to be discussed, but that the City must list those topics on any agenda prepared, if known at the time of preparation.
We find that the trial .court’s order logically interprets and effectuates the KOMA’s letter and spirit. First, it is true that the KOMA does not require all public bodies subject to its provisions to prepare an agenda. Rather, K.S.A. 1985 Supp. 75-4318(d) provides that:
“Prior to any meeting hereinabove mentioned, any agenda relating to the business to be transacted at such meeting shall be made available to any person requesting such agenda.”
However, the evidence in this case revealed that a list of topics to be discussed in the study sessions held after the formal meetings was often planned in advance, and was planned or capable of being planned at the time of the preparation of the agenda listing formal business. With that as factual background, the City’s complaint that mandamus is an improper remedy because the KOMA does not require preparation of an agenda only obscures the issue; the point is, if the City takes it upon itself to prepare an agenda “relating to the business to be transacted,” and the City has planned a topic for informal discussion or otherwise, it is logical to require that the planned topic be listed on the agenda.
Nor do we agree with the City’s dire prophecy that the trial court’s order will prevent city commissioners from discussing unplanned items. We make in response three observations: (1) nothing in the trial court’s ruling prevents the city commissioners from discussing subjects as they may arise, on and off the agenda; (2) a public body is always free to amend a published agenda at any time (U.S.D. No. 407 v. Fisk, 232 Kan. 820, 660 P.2d 533 [1983]); and (3) substantial compliance with the KOMA’s provisions suffices, unless noncompliant acts are undertaken as subterfuge.
The KOMA is a remedial act, to be subject to broad construction in order to carry out the legislative intent that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public. K.S.A. 75-4317(a); State ex rel. Murray v. Palmgren, 231 Kan. 524, 531, 646 P.2d 1091 (1982). In consideration of the KOMA’s stated purpose, we hold the trial court did not abuse its discretion in ordering that a writ of mandamus issue.
Affirmed. | [
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Benson, J.:
The defendant, Burke Energy Midwest Corporation, d/b/a Kansas Propane, (Burke) appeals from a judgment requiring that it pay plaintiff, Fleet Maintenance, Inc., (Fleet) the full purchase price for a rebuilt engine.
On June 13, 1984, Fleet Maintenance, Inc., installed a rebuilt short block engine in a truck owned by Burke. Fleet had repaired this engine several times. Burke paid Fleet for both the engine and repairs. On February 21,1985, the truck was towed to Fleet’s garage. Initial investigation revealed an internal motor problem and after discussing the severity of the problem, Burke authorized Fleet to install a second rebuilt engine. The second engine, which was not pressure-tested prior to installation, was installed on February 21, 1985. This engine came with a standard 90-day or 4,000-mile warranty. Burke was billed $2,650.42 for the engine.
On March 20,1985, Burke took the truck to Fleet for a 700-mile engine check. Fleet performed certain mechanical work on the engine and billed Burke $121.43 for the engine check. After that day, Fleet did not hear anything from Burke about the engine’s performance.
Pursuant to Fleet’s billing procedure, it began contacting Burke in May 1985 in an attempt to determine why Burke had not paid for the second rebuilt engine or the engine check. Eventually, Fleet discovered there was a dispute regarding payment of these two invoices. On August 21,1985, Fleet filed a Chapter 61 action against Burke seeking to recover for merchandise and services rendered. By way of answer, Burke alleged that the services and merchandise mentioned in Fleet’s petition were furnished to Burke to cure completely defective merchandise originally furnished to Burke.
At trial, the transportation manager for Burke testified that Burke had many problems with the second engine from the day it was installed. Burke took it upon itself to determine how to correct the problems with the second engine. In October 1985, Burke had the second engine pulled and installed a third engine. The second engine was stripped down by Burke and tested at another place (Welborn’s) where it was discovered that there were pin holes in the block which caused the problem.
The trial court granted judgment in favor of Fleet for the full purchase price of the engine and the amount of the March 1985 engine check plus interest and costs. In ruling for Fleet, the trial court found, “As a matter of law [Burke] should have given [Fleet] an opportunity to correct any fault with the engine and [Fleet] was not given that opportunity.” Although the trial court does not state what law it was relying on, it may have considered K.S.A. 84-2-508(1). Burke contends that since it accepted the engine in question it was under no obligation to give Fleet an opportunity to correct the defects in the engine.
“The [seller’s] right to cure or substitute for nonconforming goods arises only upon the buyer’s rejection of the goods. [Citation omitted.]” Linscott v. Smith, 3 Kan. App. 2d 1, 4, 587 P.2d 1271 (1978). Therefore, if the buyer has accepted the goods tendered by the seller, the seller has no right to cure. Cf. K.S.A. 84-2-508(1).
Here, Burke indicated its willingness to accept the engine as delivered by never notifying Fleet that it was rejecting and then appropriating the engine for its own use. Therefore, Fleet had no right to cure. However, if K.S.A. 84-2-508(1) was the basis for the trial court’s decision, “[t]he judgment of [the] trial court, if correct, is to be upheld, even though the trial court may have relied upon the wrong ground or assigned an erroneous reason for its decision.” Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, Syl. ¶ 5, 635 P.2d 1248 (1981). Burke may be barred not by its failure to allow Fleet to cure but, rather, by its failure to notify Fleet of breach after acceptance. K.S.A. 84-2-607(3)(a). In order for the buyer to seek any of the other remedies available to him for nonconformity he must first comply with K.S.A. 84-2-607(3) which provides: “Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” (Emphasis added.)
Regardless of form, notice must be given within a reasonable time after the buyer has discovered, or should have discovered, any breach. Failure to provide a timely notice of defect bars the buyer from any remedy, including the right to revoke and the right to maintain an action for damages based on a breach of implied or expressed warranty. White and Summers, Uniform Commercial Code § 11-10, p. 421 (2d ed. 1980). In this matter, the seller brought these actions for the price of goods accepted. Buyer countered with seller’s breach of an implied warranty of merchantability and buyer’s revocation of acceptance. Since the seller was required to counter the buyer’s allegations, notice of breach pursuant to K.S.A. 84-2-607(3)(a) is still relevant.
The record in this case reflects that Fleet was not aware of the engine’s defective condition until after suit was filed. Burke’s untimely notification of the breach barred it from defending Fleet’s suit on the basis of a breach of warranty and revocation of acceptance.
Burke’s further contention that it gave Fleet constructive notice of a defective engine by its failure to pay is without merit. Under the facts of this case, the mere failure to pay for the second engine did not provide Fleet with constructive notice that something was wrong with the engine. The key to the case at hand is Burke’s failure to comply with the clear-cut notice requirement of K.S.A. 84-2-607(3)(a).
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Meyer, J.:
Appellant Roberta Mildfelt appeals the district court’s affirmance of a Social and Rehabilitation Services (SRS) administrative hearing officer’s ruling which denied appellant eligibility for food stamps and medical assistance because of changes she made on the application form.
Appellant wrote “no” and certain other modifying language on various parts of her application. Her position is exemplified by her response to that part of the form dealing with general investigation authorization. Her response was, “I do not give SRS permission to contact anyone other than Concordia SRS without specific written permission from me. I will furnish all written requested info.” Appellant states the confidentiality of her receiving public assistance is important to her, and that to preserve her dignity she preferred to contact her landlord, her employer, and school to obtain the necessary verifying information. She further contends that only if the documentation furnished by her is suspect should the SRS be permitted to make direct inquiry.
This case would have been more amenable to solution had the Income Maintenance worker who conducted the initial inter view attempted to obtain information. Unfortunately it seems apparent that once the I.M. worker noticed the alterations and restrictive language, he arrived at the perhaps unwarranted conclusion that attempts to obtain information would be futile and forthwith denied the application. For this reason it is not possible for us to determine whether verification of appellant’s true financial posture was obtainable.
In any event, following SRS denial of benefits, appellant appealed to an SRS hearing officer, then to the SRS State Appeals Committee. When each of these steps resulted in denial of benefits to appellant, she appealed to the Sedgwick County District Court. That court, concluding it lacked venue, transferred the case to the district court of Shawnee County. When Shawnee County District Court also denied benefits to claimant she brought her appeal to this court.
We first address the issue of venue. In her brief appellant contends that the Shawnee County court lacked venue, although at oral argument it seemed clear that she wanted us to consider the case on its merits. As inferred above, it would be difficult for us to do this because of the failure of SRS to make specific requests for information, and we do not know what a proper investigation might have revealed. Indeed, appellant very nearly waived the venue issue at the hearing before us. However, when specifically asked, she did not say she would waive the venue issue. In part, at least, appellant’s concession, ineffective because not specific, was based on her apparent belief that venue had been changed by statute since the instant case was decided. Conceptually this is wrong because a statute cannot validate past venue, if in fact it was lacking when the matter was heard. Moreover, as we interpret the statute, in a case such as the instant one, venue would remain in Sedgwick County in any event. In K.S.A. 1986 Supp. 77-609, we find the following:
“(b) Except as otherwise provided by K.S.A. 8-259, 31-144,44-556, 72-5430a and 74-2426, and amendments thereto, venue is in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.”
As will be discussed at a later point herein, the language of this act, insofar as the instant case is concerned, has the same effect as the act which was in effect when the instant case was heard.
Appellant’s appeal for judicial review of the agency’s action is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The Act specifically addresses the question of venue in actions brought pursuant to it. K.S.A. 77-609(b) provides:
“Except as otherwise specifically prescribed by law, venue is in the county in which the [agency’s] order is entered or the rule and regulation is promulgated.”
First, we note this action involves an “order” rather than a “rule and regulation.”
An “order” is defined as:
“. . . an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons.” K.S.A. 77-602(e).
Because the case involved an agency’s order (that is, the denial of benefits to appellant), proper venue lay “in the county in which the order is entered.” K.S.A. 77-609(b). We find no cases defining this phrase nor, in fact, do we find any cases interpreting the Act for Judicial Review and Civil Enforcement of Agency Actions.
Despite the fact we find no Kansas case interpreting K.S.A. 77-609(b), a Kansas case has interpreted similar language that was once contained in K.S.A. 60-2101(d). That statute, like the one governing this action, provided for the judicial review of administrative orders. Subsection d of that statute (now repealed in favor of the current Act) provided:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered.” K.S.A. 60-2101(d). .(Emphasis added.)
Since the emphasized portion of K.S.A. 60-2101(d) is identical in meaning and almost identical in language with the venue provision contained in K.S.A. 77-609(b), cases dealing with K.S.A. 60-2101(d) are persuasive. Thus, Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P.2d 590 (1972), which inter prets 60-2101(d), is of relevance here. Powers, like the present case, involved the denial of welfare benefits to the appellant, Helen Powers, due to her refusal to submit to a required medical examination. Powers, 208 Kan. at 606. The appellant was a resident of Wyandotte County, and that county’s board of social welfare initially denied appellant welfare benefits. The State Appeals Committee, located in Shawnee County, affirmed the hearing officer’s denial of benefits. Appellant appealed this decision to Wyandotte County District Court pursuant to K.S.A. 60-2101(d). The appellee State Board contended that venue was improper in Wyandotte County because the order appealed from came from the State Appeals Committee, and that Shawnee County would be the proper situs for venue purposes. Powers, 208 Kan. at 607, 609.
The supreme court disagreed, and concluded that the Wyandotte County District Court was correct in not dismissing the case for improper venue. The court recognized that the applicable statute required venue to be in the district court of the county in which such judgment or order was entered. Cf. K.S.A. 77-609(b). The court, looking at a variety of factors, held that proper venue for the judicial review of the action lay in Wyandotte County. Powers, 208 Kan. at 611. The court stated:
“Hence the venue for this appeal is properly in Wyandotte County where appellant resides, where the application for welfare benefits was originally filed and denied by the Wyandotte County Welfare Department, where the hearing on appeal was held and where the State Appeals Committee was required to file its decision.” Powers, 208 Kan. at 611.
Similarly in the present case, the appellant initially applied for food stamps and medical assistance in Sedgwick County. That county’s SRS office denied appellant’s application. Appellant lives in Sedgwick County. Furthermore, the effects of the decision are wholly within Sedgwick County; the food stamps would have been issued and used in Sedgwick County and the medical assistance, had it been granted, would have been rendered in Sedgwick County. Based upon the similarities of the applicable statutes in the Powers and the instant case, and the similarity of the facts, we conclude that the proper venue for the judicial review of the State Appeals Committee’s decision lay in Sedgwick County. Since we conclude we must reverse the trial court because of its erroneous decision as to venue, we hold this case must be remanded to the Shawnee County District Court for further proceedings consistent with this opinion.
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Clark, J.;
Arnold L. Ruebke, Jr. appeals the denial of his K.S.A. 60-1507 motion to set aside a 1984 felony theft conviction that followed a plea of guilty. The reasons given to justify such a request are the trial judges’ failure to advise him of his rights to appeal (K.S.A. 1985 Supp. 38-1681[a][l][A]) and to petition for expungement (K.S.A. 1985 Supp. 21-4619[f]). Appellant maintains that under the facts of this case such failures to advise amounted to a denial of due process of law.
A full evidentiary hearing was held below. We are asked to reverse the trial court’s denial of the relief sought.
The facts pertinent to the issues presented are not in dispute.
April 2,1984, is the key date. That is the day the felony theft in question was committed by appellant. He was at the time 17 years of age and had on two separate prior occasions been the subject of a juvenile proceeding where he was on each occasion adjudicated by the district court as having committed an act that would amount to a felony had the same act been committed by an adult. See K.S.A. 1985 Supp. 38-1602(b).
Appellant’s 18th birthday was April 29, 1984.
On May 7, 1984, the county attorney filed a verified complaint with the district court pursuant to section 38-1612 of the Kansas Juvenile Offenders Code (K.S.A. 1985 Supp. 38-1601 et seq.). The April 2, 1984, act of this appellant was the basis of the complaint. The trial judge appointed a lawyer for appellant, arranged bail for him and set May 25, 1984, as the date for “pretrial hearing” (K.S.A. 1985 Supp. 38-1633),
Appellant did not appear in person on May 25. The appointed lawyer appeared, as did appellant’s mother and stepfather. At that hearing, the trial judge reviewed the court files showing appellant’s two prior adjudications, took judicial notice thereof (K.S.A. 60-409), and found that the court was without jurisdiction to act. K.S.A. 1985 Supp. 38-1604; K.S.A. 1985 Supp. 38-1602(b)(3). Unbeknown to the trial judge, the county attorney had two hours earlier filed a complaint against appellant pursuant to the Kansas Code of Criminal Procedure (K.S.A. 22-2301[1]). The basis was the same April 2, 1984, act of appellant.
Appellant entered a plea of guilty to the criminal charge on July 16, 1984. On August 24, 1984, the trial judge accepted appellant’s plea of guilty, adjudged him guilty of the offense charged, and granted his application for probation from the confinement portion of the sentence imposed. He was 18 years of age at the time.
A few months thereafter, a new criminal case was filed against appellant because of an act unrelated to this case. However, the State used the prior conviction arising out of the April 2,1984, act to establish motive (K.S.A. 60-455) in the new case. He was convicted on the new case and is now incarcerated. Thus, he attacks the prior felony theft conviction by way of K.S.A. 60-1507.
The trial court hearing appellant’s K.S.A. 60-1507 motion ruled that “the juvenile court had no jurisdiction over [appellant] on May 25, 1984,” and therefore that the law did not require appellant be informed of the appeal right set out at K.S.A. 1985 Supp. 38-1681. The trial court further ruled that a failure to advise appellant of the law concerning expungement (K.S.A. 1985 Supp. 21-4619 [f]) following his sentencing on August 24, 1984 was not “error ... of sufficient magnitude to set aside the conviction.”
K.S.A. 1985 Supp. 38-1681 provides in pertinent part that an appeal may be taken “by a respondent from an order authorizing prosecution as an adult.” This right given “respondent” is not limited by the entry of a plea of guilty or acquittal. The only limitation thereon is that “respondent” must be a “juvenile offender.”
K.S.A. 1985 Supp. 38-1602 is the definitions section of the Kansas Juvenile Offenders Code. “Juvenile” is there defined as “a person 10 or more years of age but less than 18 years of age,” while the term “juvenile offender” means:
“[A] person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor . . . but does not include:
“(3) a person 16 years of age or over who is charged with a felony or with more than one offense of which one or more is a felony after having been adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult and the adjudications occurred prior to the date of the commission of the new act charged.”
The legislature explained “jurisdiction” at K.S.A. 1985 Supp. 38-1604 in these words:
“Except as provided in K.S.A. 1982 Supp. 38-1636 and 21-3611 and amendments thereto, proceedings concerning ajuvenile who appears to be ajuvenile offender shall be governed by the provisions of this code.”
The former statutory reference is to that part of the Juvenile Offenders Code where the judge — having jurisdiction over the person of a “juvenile offender” more than 16 years of age— may upon the motion of the prosecutor “authorize prosecution of the respondent as an adult under the applicable criminal statute.” Should the judge authorize such prosecution, the juvenile offender so prosecuted is given a right to appeal that decision. The outcome of the criminal case has no bearing upon that right of appeal (K.S.A. 1985 Supp. 38-1681[a][l][A]).
Appellant contends that he is within the purview of this statutory right of appeal.
Appellant’s contention is without merit. The legislative intent is clear from a reading of the Code. It is only “juvenile offenders” as defined in the Code that have the right of appeal guaranteed at K.S.A. 1985 Supp. 38-1681. Appellant was not a “juvenile offender” on April 2, 1984, for the reason that he had twice before, on separate occasions, been before the court as a “juvenile offender” having committed acts that would have been felonies had such acts been committed by an adult person. We find no error in the ruling made by the trial judge.
Next we turn to appellant’s contention that no court has ever advised him of the law of expungement.
K.S.A. 1985 Supp. 21-4619 provides in pertinent part that:
“(f) Whenever a person is convicted of a crime . . . and ... is placed on . . . probation . . . the person shall be informed of the ability to expunge the conviction.”
“(a) [A]ny person convicted in this state . . . may petition the convicting court for the expungement of such conviction if three or more years have elapsed since the person ... (2) was discharged from probation.”
Our Supreme Court in State v. Underwood, 228 Kan. 294, 298, 615 P.2d 153 (1980), quoting State v. Miller, 214 Kan. 538, 545, 520 P.2d 1248 (1974), explained that:
“ ‘[T]he granting or denial of an application for annulment or expungement of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way that a court exercises its discretion in the granting of probation, and in deciding whether probation should be revoked.’ ”
Appellant had the burden to prove that his constitutional rights were violated by the inaction here. Roger v. State, 201 Kan. 766, 443 P.2d 252 (1968); Metcalf v. State, 199 Kan. 800, 433 P.2d 450 (1967). Specifically, what he had to prove to the trial court was that his right to “due process of law” guaranteed by the Kan. Const. Bill of Rights, §§ 1 and 2, was violated on August 24, 1984, when the sentencing judge did not advise him of a legal remedy that may — based upon the discretion of a judge — be available to him at a time in the future that, based on the record before us, has not yet arrived.
The possibility of this future remedy is now known to appellant. We find no prejudicial error in the trial court’s denial of the relief sought.
The judgment made and entered by the trial court is affirmed. | [
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Brazil, J.:
The defendant J. D. Scherer appeals his conviction of a continuing misdemeanor violation of the zoning regulations of Aubry Township, Johnson County, Kansas, by operating a salvage yard as defined therein.
Scherer bought ten acres in Aubry Township on a contract for deed in about 1966 and obtained full title in 1968.
On July 11, 1984, Scherer was charged with willful misdemeanor violations from June 1,1984, to July 10,1984, of the 1982 and 1975 Aubry zoning regulations. The complaint was amended on October 2, 1984, to include violations of the 1959 regulations, and again at trial on April 24, 1985, to include violations through April 22, 1985.
At trial, the State’s witnesses testified to the gradual accumulation of farm equipment, mostly horse drawn, from 1977 until the present when they estimated from 800 to 1,000 pieces were located on the property. In addition to farm equipment, they also mentioned eight trucks, a boat with motor, a couple of old washing machines, a badly damaged horse trailer, steel beams, lumber, an old bicycle, an old swimming pool, wagons, four automobiles, and other items.
The only evidence Scherer presented was his own testimony. He stated, “I farm and raise cattle and horses, and do some row cropping and hay, quite a bit of hay.” The ten acres in Aubry is his home base, but most of the land he farms is in Missouri. He claimed he broke horses to use the horse-drawn farm equipment he had and used them to farm in Missouri but later admitted he had cut little of his most recent hay crop with the horses and merely hoped to plant corn with them in the future. He finally stated he was getting ready to and hoped to use all the equipment some day. He testified he collected much of the equipment to be able to repair equipment that broke down because horse-drawn equipment is no longer manufactured. He stated that every item he had was usable with a little bit of repair work. He testified the lumber and steel beams were to be used in rebuilding a house that burned down, perhaps as long ago as 1970. He was also working on a metal building which he poured footings for three or four years before the trial.
The jury found Scherer guilty of maintaining a salvage yard and he has appealed.
The first two issues raised on appeal by Scherer address the adequacy of the court’s jury instruction on nonconforming use.
The State claims that Scherer violated Aubry zoning regulations by willfully maintaining on his property a salvage yard as defined in the 1982 regulations and as prohibited by the 1982 regulations, the 1975 regulations, and the 1959 regulations. Scherer claimed at trial that if his use was found to be a salvage yard, that it existed at the time the 1982 regulations were passed and so could be continued as a prior nonconforming use. The trial court apparently agreed with Scherer that nonconforming use was an issue and gave the following instruction:
“The defendant is charged with violation of the zoning regulations of Aubry Township, Johnson County, Kansas, during the period commencing June 1, 1984 and ending April 22, 1985. The defendant pleads not guilty.
“The defendant alleges a non-conforming use. The term ‘non-conforming uses’ refers to uses of certain property which are permitted to continue if such uses were in existence at the time of the adoption of zoning regulations, and conformed to the prior zoning regulations, if any, which were in effect at the time such use commenced.
“Such ‘non-conforming use’ does not permit an enlargement or extension of the prior use, and any such enlargement or extension may constitute a violation of the zoning enactments.”
Scherer objected to this instruction.
Scherer first claims that the instruction should have informed the jury he was entitled to acquittal if his use was a valid nonconforming use. We agree. He cites PIK Crim. 2d 52.08, which states: “If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you should find the defendant not guilty.” The instruction given in this case merely defined “nonconforming uses” and stated a restriction on them. It did not inform the jury what effect this defense should have and it is difficult to see that it could tell from the instructions as a whole what to make of it.
Scherer next argues that the instruction failed to distinguish between permissible intensification and impermissible enlargement of a valid nonconforming use. He cites Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 478 P.2d 181 (1970). See also Carroll v. Hurst, 103 Ill. App. 3d 984, 431 N.E.2d 1344 (1982); City of Central City v. Knowlton, 265 N.W.2d 749 (Iowa 1978); Worthington v. Everson, 10 Ohio App. 2d 125, 226 N.E.2d 570 (1967). Contrary to the State’s assertion that abandonment of a nonconforming use was the only issue in the Union Quarries case, the court also considered the claim that the quarrying operations involved in the case had expanded in volume and intensity. 206 Kan. at 276-77. The court upheld the increased use because “[i]t underwent no fundamental change in quality.” 206 Kan. at 277. The State further asserts Union Quarries is inapplicable because the Aubry regulations require the nonconforming use to be “the principal use” of the land in question. But the question here is whether the court’s instruction on nonconforming use was correct. It seems entirely possible, given the evidence presented, that the jury would have concluded that a “salvage yard” as defined in the 1982 regulations was the principal use of Scherer’s land and that his additions to his collection of machinery after 1982 did not constitute a fundamental change in the quality of his use.
A final problem relating to the issue of nonconforming use is the question whether use of land as a “salvage yard” as defined in the 1982 regulations was prohibited under the 1975 regulations. We believe it was not. It appears that the court relied on State’s Exhibit 6, the 1975 regulations to inform the jury what uses were permitted by those regulations and then to consider the nonconforming use defense. This seems inadequate to discharge the court’s duty to instruct the jury on the essential elements of the crime. State v. Nesmith, 220 Kan. 146, 151, 551 P.2d 896 (1976), quoting State v. Smith, 215 Kan. 865, 866, 528 P.2d 1195 (1974). The 1975 regulations do not appear to prohibit a “salvage yard” as defined in the 1982 regulations. “Junkyard” is defined in the same language as “salvage yard” in 1982, but nowhere is use as a junkyard prohibited or restricted. The State, in its complaint and brief, seeks to rely on another section of the 1975 regulations to prohibit Scherer s use of his property as a “salvage yard.” That section reads:
“No building material, construction equipment, machinery or refuse shall be stored, maintained or kept in the open upon any lot, tract or parcel other than in such districts as permitted in these regulations, except during actual construction operations upon said premises or related premises.”
As a whole, this section would seem to prohibit storage of material, equipment, machinery, or refuse used in or resulting from construction operations except during actual construction rather than prohibit salvage yards. The apparent intent of the 1975 regulations was to restrict junkyards in 1975 just as salvage yards were restricted in 1982. Unfortunately junkyards were omitted from the list of special uses requiring a permit in 1975 while salvage yards were included on the list of conditional uses requiring a permit in 1982.
(We note that although Scherer was charged with violating the 1959 regulations, there is no evidence in the record of any prohibited uses prior to 1977, at which time the 1975 regulations were in effect.)
Scherer next argues the court erred in failing to instruct the jury that agricultural use of his property was exempt from the Aubry zoning regulations.
K.S.A. 19-2908 provides in part:
“No determination nor rule nor regulation shall be held to apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.”
This section has never been interpreted but identical language in K.S.A. 19-2921, part of the statutes permitting county comprehensive zoning plans (K.S.A. 19-2914 to 19-2926b), was considered in Blauvelt v. Board of Leavenworth County Comm'rs, 227 Kan. 110, 605 P.2d 132 (1980). The'court held that a farmer’s dwelling house was exempted by this language from zoning regulations controlling residential construction, saying, “The obvious purpose of the proviso in K.S.A. 19-2921 was to favor agricultural uses and farmers.” 227 Kan. at 113. There was no question in that case that the land was agricultural land. 227 Kan. at 114.
In the present case, it is not at all clear that Scherer was using the land for agricultural purposes. He did claim he was a farmer and the ten acres was his base of operations. He further attempted to show he used the old farm equipment in his farming operations, but generally was only willing to claim he hoped to use it or used it a little bit. He explained the size of his collection was necessary to maintain a stock of repair parts. It seems conceivable the trial court could have decided the State had shown Scherer’s collection of machinery as a matter of law had no agricultural purpose. This is not what the court did, however. Instead, in support of its decision not to include anything about an agricultural use exemption in the instructions, the court said:
“I just don’t agree that was the intent of the statute, to say that some agricultural use or substantial agricultural use or nearly entire agricultural use of a piece of property exempts it and allows the usage of the property for any other purposes. The purpose of the statute, as I understand it, was to encourage agriculture uses; but it does not exempt the property from being zoned for the purpose of proscribing or prohibiting uses that are not agricultural. ... It is entirely possible that some uses or substantial usage of the property for agricultural purposes gives it an entire blank check and allows the property to be used for any other purpose that the owner desires. . . . These cases all relating to, as I read them, agricultural uses which the Court has found to be agricultural uses. And I find no problem with any of the usages described in these cases.
“The feed lot case presents no problem to me. I can understand where that could be found to be entirely agricultural. Even though they are using the property for feeding of catde that are sold. Obviously this is commercial. But it is an agricultural commercial usage. And again, that is the issue here. Is Mr. Scherer’s usage an agricultural use? If it is, then' he should be sent out of the courtroom and found not guilty.”
It appears the court felt agricultural uses and all other uses are mutually exclusive; that is, a salvage yard as defined by the Aubry regulations cannot possibly be used agriculturally. The Blauvelt case points out the flaw in this interpretation of the statute; a residence, clearly not an agricultural use in most cases, was held to be an agricultural use when a farmer would live in it.
Thus, we believe the trial court erred in not instructing the jury that Scherer’s use of his land, even though it found the use to be a salvage yard as defined by the Aubry regulations, was exempt from the regulations if it was also an agricultural use.
Scherer next argues that the trial court’s use of the definition of “salvage yard” contained in the Aubry zoning regulations was erroneous. This is simply a continuation of the argument that the court should have instructed the jury on the agricultural use exemption. The trial court might have cured this shortcoming either with a separate instruction or by modifying the “salvage yard” definition to inform the jury that if Scherer’s “salvage yard” was an agricultural use of his property that he should be found not guilty.
Scherer follows this with a complaint that the court erroneously excluded catalogs he offered to try to inform the jury of the agricultural purposes of his machinery. He offered them under the business records and the learned treatise exceptions to the hearsay rule. He asserts in his brief, for the first time, that they should have been admitted under the commercial lists exception. K.S.A. 1985 Supp. 60-460(bb). Hearsay exceptions raised for the first time on appeal need not be considered. State v. Palmer, 8 Kan. App. 2d 1, 4-5, 657 P.2d 1130 (1982).
Finally, Scherer complains about the fine imposed by the court.
Scherer was originally charged with willful misdemeanor violations of the 1982 and 1975 Aubry Township zoning regulations for the period from June 1, 1984, through July 10, 1984. On October 2, the complaint was amended to include violation of the 1959 regulations for the same period. Scherer was tried on April 22 to 24, 1985. On April 24, after the completion of the evidence, the assistant district attorney apparently handed the court a second amended complaint which charged Scherer with violations for the period from June 1, 1984, through April 22, 1985, and the court permitted this amendment over Scherer’s objection on the ground it was an amendment to conform to the evidence.
The jury found Scherer guilty of violations for the period June 1, 1984, to April 22, 1985. The Aubry regulations provided for a fine of up to $200 per violation and that each day of violation was a separate offense. This penalty is authorized by K.S.A. 19-2912, which states in part:
“That any violation of any provision of this act shall be deemed to be a misdemeanor and punishable by a fine of not to exceed two hundred dollars for each offense and that each day’s violation shall constitute a separate offense . . .
On June 14, 1985, the trial court sentenced Scherer to pay a fine of $200 per day from June 1, 1984, to the sentencing date and every day thereafter the violation continues. On the date of sentencing, the court stated the fine totalled $75,600.
As to that portion of the sentence which imposed a fine for each day between the trial and the sentencing and “for each day the violation continues” we conclude “one can be punished only for an offense which he has actually committed, not for an offense which he may commit in the future.” 21 Am. Jur. 2d, Criminal Law § 4, p. 117. This rule follows from the long-standing rule of criminal procedure which has been codified at K.S.A. 21-3109: “A defendant is presumed to be innocent until the contrary is proved.” Obviously, no evidence of Scherer’s violation of the regulation after the date of his trial has been properly offered in a criminal trial against him. Therefore, he cannot be punished for violations alleged to have occurred after the trial until he is convicted of those violations.
We next must determine whether the trial court had jurisdiction of the offenses from July 11, 1984, to April 22, 1985, which were added by the State at the conclusion of the evidence.
There appears to be no question here that the district court would have jurisdiction of all the alleged violations if its jurisdiction had been properly invoked. That is, it has subject matter jurisdiction over criminal misdemeanors. However, the district court must have jurisdiction not only over the offense charged, “[b]ut a court must also have jurisdiction of the question which its judgment assumes to decide.” State v. Minor, 197 Kan. 296, 299, 301, 416 P.2d 724 (1966). Thus, it has been held that the court had no jurisdiction to convict a defendant of battery because it is not a lesser included offense of an attempted rape charge, even though the defendant himself requested that the trial court give an instruction on battery. State v. Chatmon, 234 Kan. 197, 204, 671 P.2d 531 (1983).
The original complaint in this case properly invoked the court’s jurisdiction over the offenses from June 1 to July 10. K.S.A. 1985 Supp. 22-3201(4) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” (Emphasis added.) Since each day of violation was a separate offense, the State added approximately 285 offenses by amending the complaint at trial to include offenses for the period from July 11 to April 22. We conclude that the district court had no jurisdiction over those offenses added by the amended complaint on the last day of the trial. Since the court had no jurisdiction over those offenses, the fine imposed for those days is void. Chatmon, 234 Kan. at 205.
Next, did the trial court abuse its discretion when it assessed the maximum fine permitted under K.S.A. 19-2912 and the Aubry regulations for each day of violation?
The general rule where abuse of discretion in sentencing is raised is that “[f]ailure to allege a sentence is outside statutory limits or is the result of partiality, prejudice or corrupt motive presents no issue for review of sentencing on appeal.” State v. Haines, 238 Kan. 478, Syl. ¶ 1, 712 P.2d 1211 (1986). However, that case and others we have found involve sentences imposing incarceration not fines, as here. When considering fines, in addition to the particular penal statute, we must consider also K.S.A. 21-4607(3) and the Kansas Constitution Bill of Rights, § 9.
K.S.A. 21-4607(3) provides:
“In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
In this case, the record contains no indication that Scherer’s financial resources were considered by the court in imposing the fine. In fact, the only evidence in the record indicates that his resources may be limited — he lost to foreclosure seventy of the eighty acres he owned in Aubry Township in 1977 or 1978. Given the statutory directive to consider his ability to pay the fine, we believe it was an abuse of discretion not to do so.
Finally, the Kansas Constitution Bill of Rights, § 9 provides in part: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” If we consider the court’s fine of $200 per day as applying only to the period of 40 days involved in the original complaint, this would still be $8,000.00. It was recently held that factors considered in determining whether the length of a sentence violates the prohibition against cruel punishment should also be applied to determine whether a fine violates the prohibition against excessive fines. State v. Gibson, 8 Kan. App. 2d 135, 138-39, 651 P.2d 949 (1982). These factors were set out in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978):
“(1) The nature of the offense and the character of the offender.should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of th§ offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.”
How might these factors be applied to the fine imposed in this case? The nature of the offense of violating a zoning ordinance seems to militate against the enormous fine imposed in this case. Scherer’s collection of equipment does not seem to pose any danger to society except to aesthetic sensibilities and neighboring property values, at least so long as no one trespasses on his property.
Perhaps the best approach is to compare the seriousness of illegal operation of a “salvage yard” with the seriousness of other illegal uses classified with “salvage yards” under the Aubry regulations. All violations of the regulations are subject to the same penalty of $200 per violation with each day to be a separate offense. “Salvage yards” are classed with twenty-three other uses as conditional uses which require a permit before they can legally exist in Aubry Township. Several of these seem, like salvage yards, to pose little more than an aesthetic threat to the “public health, safety, morals, and general welfare” and the “surrounding property, persons, and neighborhood values.” (These are the main factors to be considered in deciding whether to allow a conditional use.) These include cemeteries; contractors’ shop, yard, and storage areas; radio and television towers; single mobile home units used for residential purposes; and trailer parks. Others seem to pose a more serious threat largely due to the increased traffic and congestion they would almost certainly cause: athletic and baseball fields, drive-in theatres, exposition centers, fairgrounds, fire stations, greenhouses operated as retail businesses, commercially operated recreational or sports facilities, and riding academies, stables, or show arenas. Another group poses a special hazard due to the presence of animals: keeping various animals on less than two acres, kennels, riding academies, stables, show arenas, commercial stockyards and feedlots, and zoos. Some are difficult to assess as posing any particular threat: group boarding homes, preschools, nurseries, and day-care centers. And finally, one group stands out as posing the most serious potential problems: airports or landing fields, quarries and asphalt or concrete plants, sanitary landfills or hazardous waste disposal facilities, and commercial stockyards or feedlots. Since all these uses, if pursued without obtaining a permit, are punishable by the same maximum $200 per day fine, it appears that, absent other factors such as prior violations, the relatively less threatening use Scherer made of his land should not be punished by the maximum fine allowable.
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The opinion of the court was delivered by
Horton, C. J.:
On November 27, 1884, writs of attachment in favor of certain creditors of Horace Blakely were placed in the hands of H. T. Dodson, sheriff of Butler county, for service. Upon that day he levied the writs on a general stock of merchandise, as the property of Blakely, but claimed to have been purchased by R. H. Cooper, in good faith and for a valuable consideration, prior to the attachments. Dodson, for the attaching creditors, contended that Cooper and Blakely entered into a conspiracy to make a pretended sale of the goods from Blakely to Cooper to defraud the creditors of Blakely. Subsequently Dodson, as sheriff, sold the stock of goods as the property of Blakely, and Cooper brought suit to recover the value thereof, alleging that they had been wrongfully seized and converted by Dodson. Judgment was rendered in favor of Cooper for $5,336.18 and costs. Upon the trial, Dodson offered to prove that Cooper bought all the goods levied upon, at the sheriff’s sale for twenty-three hundred dollars, excepting those taken to satisfy the claim of Bates, Reed & Cooley, valued at nine hundred and fifty dollars and eighteen cents. This evidence was rejected. The court instructed the jury that if they found the issues for Cooper, they should assess his damages at the amount of the value of the goods at the time they were taken by Dodson.
Complaint is made of the rejection of the evidence offered, and to the giving of the instruction as to the measure of damages. We think the complaint well made. The instruction given would not have been prejudicial if Cooper had not bought back the property in controversy. (Simpson v. Alexander, 35 Kas. 225.) But a different rule applies in such a case as this, where the owner gets back his property after the wrongful taking or conversion. Field says:
“ In an action for the conversion of property, the fact that the property has been returned to plaintiff may always be shown in mitigation of damages; and, generally, where there is a wrongful taking and the property has been redelivered to the owner or party entitled to possession of the same, the measure of damages is the expenses necessarily incurred by reason of the tort, the value of the time required to recover it, the value of the use of the property, and the amount of the injury thereto, if any.” (Law of Damages, §110.)
Sutherland says:
“Wherever the owner gets back his property after any wrongful taking or detention, the expense of procuring its return is the measure of damages, in the absence of special damages, and where the property itself has not been injured nor diminished in value. In other words, the wrongdoer is prima fade liable for the value of property at the time he tortiously took it, or converted it, with interest; but if it has been returned and accepted by the owner, its value when returned, or if the owner has incurred expense to recover it, then its value, less such expense, will be deducted by way of mitigation from the amount which would otherwise be the measure of damages. Where one recovers his property again which had been unlawfully taken from him, he is considered as having received it in mitigation of damages, upon the principle that he has thereby received partial compensation for the injury suffered.” (Vol. 1, on Damages, 239. See also McInroy v. Dyer, 47 Pa. St. 118; Ewing v. Blount, 20 Ala. 694; Hunt v. Haskell, 24 Me. 339; Sprague v. Brown, 40 Wis. 612.)
In Ewing v. Blount, the action was trover for the conversion of a slave. At the time of the trial the plaintiff had recovered possession of the slave. The court said: “If the owner has regained the possession of the goods, he cannot recover their value, and is only entitled to the damages he has. sustained by the wrongful deprivation of his possession, and such damages should be commensurate with the injury.” (Pierce v. Benjamin, 14 Pick. 356; Curtis v.Ward, 20 Conn. 204.)
Sprague v. Brown was an action for the conversion of an iron safe of the value of three hundred dollars. The safe was seized upon execution and sold as the property of the execution debtors, who were not the owners thereof. The plaintiff in that case obtained the return of the safe under a purchase from a party who bought it at the sheriff’s sale. It was held that “plaintiffs having purchased back their goods from a stranger who bid them off at the execution the measure of their damages is the sum thus paid, (not greater thau the market value;) in addition to which they might have recovered any special damages suffered from the unlawful taking, if any such had been alleged and proven.”
If we understand the evidence correctly, the testimony of Cooper shows that for the stock of merchandise levied upon, he paid Blakely about two thousand dollars in money, and turned over to him real estate estimated at four thousand eight hundred dollars. The jury, however, found that the value of the real estate, less the incumbrances thereon, was only twelve hundred and sixty dollars. On the date of Cooper’s alleged purchase, he executed a bond to Blakely for certain real estate as part of the purchase-price of the stock of merchandise. As there was some doubt about his ability to convey this real estate, the bond was placed in escrow until November 27,1884, when it was taken up and destroyed, and a new bond, reciting other real estate, executed and delivered to Blakely. This bond covered the real estate which was conveyed subsequently by Cooper to Blakely. The bond provided for the conveyance of the realty on or before March 25, 1885.
There is some conflict in the evidence whether the second bond was delivered to Blakely before or after Cooper had actual knowledge of the attachment proceedings. The jury found, however, that this bond was delivered prior to the levy of the attachments, but the conveyances for the land were not executed until after the stock of merchandise was levied upon, and after Cooper had actual notice of the fraud of Blakely. One of the deeds was acknowledged November 28,1884, and the other two January 23,1885. Even if Cooper was a bona fide purchaser of the stock of merchandise, yet if he did not execute the deeds for the real estate, which was a part of the consideration therefor, until after he had actual notice of the attachments, the conveyanees were delivered at his peril. He cannot be protected for the value of the land, for which he gave deeds to Blakely after full notice of the fraud. The jury found that the sale of the stock of merchandise by Blakely to Cooper was with the intent on the part of Blakely to defraud his creditors, and to hinder and delay them in the collection of their debts. This fraud seems to be conceded by all the parties. It is well settled that no one but a purchaser for a valuable consideration actually passed before notice of the fraud can, as against attaching creditors, claim title to the property which has been fraudulently disposed of. (Bush v. Collins, 35 Kas. 535.) Cooper had given only a bond for the conveyance of the real estate at the purchase, and when notice of the fraud of Blakely was given him, he need not have carried out the terms of the bond, because the consideration therefor wholly failed. The bond was not a negotiable instrument.
Again, an examination of the special findings of the jury shows that they are conflicting, uncertain, and somewhat inconsistent with the general verdict. (Harvester Works Co. v. Cummings, 26 Kas. 367; K. P. Rly. Co. v. Peavey, 34 id. 472.) While the jury found by the general verdict and one of the special findings, that Cooper had no actual notice of the fraud of Blakely at the time he made the purchase, and further found that the facts and circumstances concerning the sale were not such as to put a prudent man upon inquiry as to the object Blakely had in making the sale, they did find that the trade between Blakely and Cooper was consummated on November 25, 1884, between the hours of 9 p. M. and 12 m.; that Blakely made the sale to defraud his creditors; that no inventory of the stock of merchandise was taken by Cooper before the sale was made; that the sale was not made in the usual and ordinary course of business, and that it was made at an unusual hour. Further, the findings of the jury show that Cooper agreed to pay only one-half of the value of the stock of goods which he purchased. It looks very much as if Cooper bought the stock with such knowledge as would put a prudent man upon inquiry, notwithstanding the special finding of the jury to the contrary. (Gollober v. Martin, 33 Kas. 252; Singer v. Jacobs, 3 McCr. 638.)
Various other errors are alleged, but as anew trial must be had, we do not think it necessary to comment thereon. We clo not intend, however, to approve all of the proceedings of the trial court not herein referred to.
The judgment of the district court will be reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The agreement for the sale of the real estate described in the petition confers neither the legal nor the equitable .title upon Davison. It is simply an agreement to sell real estate upon conditions precedent, and sets forth a conditional sale only. In the contract it is stipulated in substance that time is of the essence thereof; that the failure to perform any of its conditions shall render the contract null and void; and that by such failure the party holding under the contract shall forfeit to the other party all the money paid thereon, all improvements made on the premises, and all right to compensation therefor; and that he shall cease to have any interest therein. (Comm’rs of Douglas Co. v. U. P. Rly. Co., 5 Kas. 615; Parker v. Winsor, 5 id. 362; McNamara v. Culver, 22 id. 661; Eckert v. McBee, 27 id. 232.)
When land is sold and conveyed, and notes are given for the purchase-money, the vendee may be taxed for the land and the vendor for the notes received for the purchase-money; but where the vendor still owns the laud, and also owns it conditionally, as in this case, we do not think that he can be taxed upon the land contract. (See Wilcox v. Ellis, 14 Kas. 588; C. B. U. P. Rld. Co. v. Wilcox, 14 id. 259.) The maxim, that equity considers that when land is sold on credit, and the deed is to be made when the purchase-money is paid, that the land at the time of the purchase becomes the vendee’s, and the purchase-money the vendor’s; that the vendor becomes the trustee of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase-money, is not applicable here.
Davison has the option to purchase. Under the agreement he has the possession of -the laud, and pays therefor the taxes and certain interest; but the legal title has not passed to him, because no deed or other conveyance has yet been made; and the equitable title has not passed, because the land has not been paid for, and because — on account of the provisions for forfeiture — it is clearly the intention of the parties, as indicated in the contract, that such title shall not pass until the land is paid for. Davison has a contingent or conditional equity in the land, but he is in danger of forfeiting the same, and if forfeiture occurs, his contingent or conditional equity ceases. If we could consider the agreement a mortgage merely, then as personal property it would be taxable. As the agreement cannot be construed into a mortgage, nor as creating a debt, but being a conditional sale only, we must hold that it is not subject to taxation.
If it be claimed that the agreement is a credit, and therefore taxable, the claim is defeated by the definition given to “credit” by the tax law, as follows: “ The term ‘ credit,’ when used in this act, shall mean and include every demand for money, labor, or other valuable thing, whether due or to become due, but not secured by lien on real estate.” (Comp. Laws of 1885, p.945; Lappin v. Comm’rs of Nemaha Co., 6 Kas. 403.) We do not think the agreement creates a debt, bnt if any demand for money is created thereby, it is secured on real estate, and therefore not a “credit" within the statute.
The judgment of the district court will be reversed, and the cause remanded, with direction to the court below to overrule the demurrer filed to the petition.
All the Justices concurring. | [
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Caplinger, J.:
Jeremy James Cox appeals his conviction for possession of methamphetamine with intent to sell. Cox argues his arrest for failing to provide proof of motor vehicle liability insurance was unlawful because the applicable statute, K.S.A. 40-3104(d), permits only the issuance of a citation for a violation of the statute. Thus, he contends the subsequent search of his person was not incident to a valid arrest and the fruits of that search should have been suppressed.
We conclude that the language of K.S.A. 40-3104, when considered in pari materia, reveals that a law enforcement officer is authorized to either issue a citation or arrest an individual who fails to provide proof of motor vehicle liability insurance as required by section (d) of that statute. Therefore, Cox’s arrest was lawful, the subsequent search of his person was incident to that valid arrest, and the district court did not err in denying Cox’s motion to suppress tire fruits of that search.
Factual and procedural background
Cox was stopped by Yates Center Police Officer Britt Sigg for a window tint violation. Sigg asked Cox to produce proof of motor vehicle liability insurance, and when Cox was unable to do so, Sigg arrested him for violating K.S.A. 40-3104(d).
During the subsequent pat-down search of Cox, Sigg felt a bulge in Cox’s pants pocket. Sigg removed a sunglass’ case and discovered it held two baggies containing a substance Sigg believed to be methamphetamine. Subsequent laboratory testing confirmed Sigg’s belief.
Cox was charged with possession of methamphetamine with intent to sell, possession of drug paraphernalia, and failure to provide proof of insurance. He moved to suppress the evidence obtained through the search of his person on the basis that it was an unauthorized, warrantless search. At a hearing on his motion, Cox further argued that his failure to provide proof of insurance was not an arrestable offense and, therefore, the subsequent search was not justified as a search incident to a valid arrest. The district court denied the motion, finding Cox’s failure to provide proof of insur anee was an arrestable offense and the evidence found on his person was admissible as it was obtained in a search incident to a valid arrest.
Cox waived his right to a jury trial, and the case was tried to the district court based on stipulated facts. At trial, Cox renewed his objection to the evidence obtained in the search, which the district court again overruled. The court found Cox guilty on all three counts and sentenced him to 18 months’ probation, with an underlying prison term of 15 months.
Discussion
In this appeal, Cox renews his argument that the failure to provide proof of valid motor vehicle liability insurance under K.S.A. 40-3104(d) is not an arrestable offense and the evidence obtained in the subsequent search of his person should have been suppressed as the search was not incident to a valid arrest.
At the outset, we note Cox does not expressly argue that the search violated his rights under the Fourth Amendment to the United States Constitution. Rather, Cox limits his argument to the statutory language of K.S.A. 40-3104. However, the Fourth Amendment provides the foundation for Cox’s argument that he was illegally arrested and that the evidence obtained in the subsequent search of his person was inadmissible.
When, as here, the facts material to a trial court’s decision on a suppression motion are not in dispute, the question of whether to suppress is a question of law over which appellate courts exercise unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Further, this case requires us to construe relevant statutes and thus raises questions of law over which we also have unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Our first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
Cox was arrested for violating K.S.A. 40-3104(d), which requires motorists to “display, upon demand, evidence of financial security to a law enforcement officer.” Violation of this statute is a class B misdemeanor, punishable by a fine between $300 and $1000 and up to 6 months in jail. K.S.A. 40-3104(g)(1). Under tire statute, the law enforcement officer “shall issue a citation to any person who fails to display evidence of financial security upon such demand.” K.S.A. 4-3104(d).
Cox argues the provision of K.S.A. 40-3104(d) that a law enforcement officer “shall issue a citation” limits the method by which the statute may be enforced to the issuance of a citation and prohibits an officer from arresting an individual solely for a violation of the statute.
The State, on the other hand, argues the language of K.S.A. 40-3104(d) is not intended to limit enforcement of the statute to the issuance of a citation. Rather, the State suggests the statute requires an officer to either issue a formal citation or arrest an individual for failure to provide proof of insurance.
A. Does K.S.A. 22-2401(d) authorize arrest for failure to carry proof of motor vehicle liability insurance?
To resolve this issue, we must first examine K.S.A. 22-2401, which sets out law enforcement’s general powers of arrest. The State contends general authority for Cox’s arrest can be found in K.S.A. 22-2401(d), which provides authority to arrest a person when “[a]ny crime, except a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the person in the officer’s view.”
The term “traffic infraction” is defined in K.S.A. 21-3105(2) as “a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.” K.S.A. 40-3104 is not among the statutes listed in K.S.A. 8-2118(c). Therefore, under the plain and unambiguous language of K.S.A. 21-3105(2), a violation of K.S.A. 40-3104 is not a traffic infraction. Because a violation of K.S.A. 40-3104 is not a traffic, cigarette, or tobacco infraction, it is not excepted from those crimes for which a law enforcement officer may effect an arrest when a crime has been or is being committed by the person in the officer s view. K.S.A. 22-2401(d).
B. Does K.S.A. 40-3104(d) limit the means of enforcement for a violation of the statute to the issuance of a citation?
While it is clear that law enforcement officers have general authority under K.S.A. 22-2401 to arrest an individual for a violation of K.S.A. 40-3104, a class B misdemeanor, we must nevertheless consider Cox’s argument that this authority is superceded by the language of K.S.A. 40-3104(d), which provides that an officer “shall issue a citation” for the failure to cariy proof of insurance.
Cox argues this language specifically limits enforcement of the statute to the issuance of a citation and prohibited his arrest in this case. The State disagrees and points out that since 1984, K.S.A. 40-3104 has consistently permitted an officer to arrest an individual who violates the statute. The State contends the phrase “shall issue a citation,” which was added to subsection (d) in 1988, permits an officer to either issue a citation or arrest an individual who violates subsection (d). See L. 1988, ch. 161, sec. 2.
Because the meaning of the phrase is ambiguous, we must resort to statutoiy construction and examine the legislature’s intent.
When construing a statute to ascertain legislative intent, we are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). Applying that legal maxim, we need not look far in determining whether the legislature intended to limit enforcement of K.S.A. 40-3104(d) to the issuance of a citation.
Rather, we find the answer to this question in the language of K.S.A. 40-3104(e), which provides:
“[N]o person charged with violating subsections (b), (c) or (d) shall be convicted if such person produces in court, within 10 days of the date of arrest or ofissuance of the citation, evidence of financial security for the motor vehicle operated, which was valid at the time of arrest or of issuance of the citation.” (Emphasis added.)
Clearly, K.S.A. 40-3104(e) anticipates that an individual charged with a violation of the statute will either be arrested or issued a citation for that violation, and, in either event, the violator will have a 10-day grace period in which to produce evidence of insurance so as to avoid a conviction under the statute.
This interpretation is buttressed by the legislative history of subsections (d) and (e), which were both added to K.S.A. 40-3104 in 1984. Subsection (d) originally provided: “Any person operating a motor vehicle upon a highway or upon property open to use by the public shall display, upon demand, evidence of financial security to a law enforcement officer.” L. 1984, ch. 174, sec. 2(d). Subsection (e) originally stated: “No person charged with violating subsections (b), (c), or (d) shall be convicted if such person produces in court or in the office of the arresting officer, within 20 days of the date of arrest, evidence of financial security for the motor vehicle operated, which was valid at the time of arrest.” (Emphasis added.) L. 1984, ch. 174, sec. 2(e).
K.S.A. 40-3104(d) was again amended in 1988 to include the language Cox focuses on here: “The law enforcement officer shall issue a citation to any person who fails to display evidence of financial security upon such demand.” L. 1988, ch. 161, sec. 2(d). And, significantly, K.S.A. 40-3104(e) was also amended to read in pertinent part: “Unless the insurance company subsequently submits an insurance verification form indicating that insurance was not in force, no person charged with violating subsections (b), (c) or (d) shall be convicted if such person produces in court, within 20 days of the date of arrest or of issuance of the citation, evidence of financial security for the motor vehicle operated, which was valid at the time of arrest or of issuance of the citation.” (Emphasis added.) L. 1988, ch. 161, sec. 2(e).
Thus, from 1984 to 1988, subsection (e) of K.S.A. 40-3104 contemplated only an arrest for a violation of subsections (b), (c), or (d). Beginning in 1988, however, subsection (e) contemplated that a violation of any of those three subsections would result in either an arrest or the issuance of a citation. Had the legislature intended to limit enforcement of the statute to issuance of a citation, it could have deleted the arrest language or expressly prohibited arrest. Instead, the legislature retained the arrest language and added the phrase “issuance of a citation,” clearly expressing an intent to pro vide officers a choice of two enforcement options for the violation of subsections (b), (c), and (d).
Thus, we conclude that when a person violates K.S.A. 40-3104(d) by fading to provide proof of motor vehicle liability insurance, a law enforcement officer may lawfully issue a citation or arrest that individual.
Because Cox’s arrest for a violation of K.S.A. 40-3104(d) was lawful, the search of Cox’s person was authorized incident to the valid arrest, and the district court did not err in denying his motion to suppress.
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Rulon, C.J.:
Defendant Charles Christian Krider appeals from his jury conviction of intentional second-degree murder. We affirm.
The defendant contends the district court erred in denying defendant's motions for appointment of a venire expert and for a change of venue; granting the prosecution’s motion in limine to exclude defendant’s alternative-perpetrator theory; denying defendant’s motion for new trial based on prosecutor misconduct; instructing the jury on lesser offenses; sentencing the defendant to the maximum presumptive sentence; and denying defendant’s motion for a new trial based on newly discovered evidence.
Underlying Facts
On January 19, 2004, Mary LaFaye Noble was supposed to meet the victim, Judith Shrum, at the victim’s house south of Chetopa, Kansas. When the victim did not answer her door or phone, Noble and a neighbor discovered the front door was unlocked, entered the house and searched it, but found only the victim’s purse and cell phone sitting on a counter and the victim’s car parked in the garage. Noble then called 911.
Although there was no sign of forced entry or a struggle, Noble informed the police she noticed wet towels on the bathroom vanity and clothes and a pillow on the floor of the bedroom, which seemed out of place for the victim, a meticulous housekeeper. Law en forcement officers collected the towels from the bathroom, a single hair lying on one towel, and swabs of two stains on the bathroom countertop.
Initially, law enforcement officers feared the victim had harmed herself because of the recent death of her husband. Community members and law enforcement began searching for the victim. On January 21, the victim’s house was sealed off as a possible crime scene, and the sheriff s office executed a search warrant on the house a day later, collecting hair from the shower drain and a nightgown and robe from the master bedroom.
Eventually, the victim’s partially clothed body was located in a nearby creek on January 23. She had been strangled to death.
The Chetopa police chief filed a report stating he had seen the defendant’s vehicle driving in Chetopa at midnight on January 19, 2004. On January 26, two KBI agents interviewed the defendant. The defendant told the agents he had been watching football at a friend’s house on January 18 before returning home at about 9 p.m. to play video games for a couple of hours. According to tire defendant, around 11 p.m., he drove to some of his property southeast of Chetopa to shoot beavers and returned home around 2 a.m. on January 19, 2004. The defendant told the agents he had met the victim when they both worked for the Chetopa School District in 1996-97. According to the defendant he owned a tilling business and had been to the victim’s house to till a garden.
DNA testing on stains from the robe, a towel from the bathroom, and the bathroom vanity revealed a mixture of DNA. Neither the defendant nor the victim could be excluded as contributors to the stains. The defendant’s facial hair was found to be consistent with the hair found on the bathroom towel, and his pubic hair was consistent with a hair from the shower drain.
Ultimately, the State charged the defendant with one count of premeditated first-degree murder, in violation of K.S.A. 21-3401, and one count of aggravated battery, in violation of K.S.A. 21-3716. Later, the State filed an amended complaint/information charging the defendant with one court of premeditated first-degree murder, in violation of K.S.A. 21-3401.
The defendant’s first trial resulted in a mistrial after the jury could not reach a unanimous decision.
Prior to the second trial, the defendant filed a motion to appoint an expert to conduct a survey to determine if the venue should be changed and a motion for change of venue, arguing the defendant was prejudiced by pretrial media coverage. The district court denied both motions.
At the close of the evidence of the second trial, in addition to first-degree murder, the district court instructed the jury on the lesser included offenses of second-degree murder and voluntary manslaughter, over the defendant’s objection. Following deliberation, the jury found the defendant guilty of murder in the second degree. The defendant moved for a new trial, citing multiple errors. The district court denied the motion.
The district court found the defendant’s criminal history was category I, denied the defendant’s motion for departure, and sentenced the defendant to the upper presumptive sentence of 165 months’ imprisonment in the custody of the Secretary of Corrections.
The defendant timely appealed from his conviction and sentencing. While this appeal was pending, the defendant filed another motion for new trial in the district court and a motion for remand and stay of appellate proceedings in this court, contending there was newly discovered evidence regarding the custodian of evidence in the case. We remanded the matter to the district court for the limited purpose of considering the motion for new trial based on newly discovered evidence.
Eventually the district court held a hearing and denied the motion. The denial of this motion is before us in this appeal.
Venue Issues
On appeal, the defendant’s first argument is the district court erred in denying his motion for change of venue claiming he did not receive a trial by a fair and impartial jury. The defendant asserts the pretrial publicity and small size of the community from which the juiy was drawn prejudiced the jury pool.
The State responds the defendant offers insufficient evidence of juror bias in light of previous Kansas case law on change of venue.
Change of venue decisions are entrusted to the sound discretion of the district court, and such decisions will not be disturbed on appeal unless there is a showing of prejudice to the substantial rights of the defendant. State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001); see K.S.A. 22-2616(1).
Media publicity alone does not establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001). Clearly, the defendant has the burden to show prejudice exists in the community, “not as a matter of speculation but as a demonstrable reality.” Higgenbotham, 271 Kan. at 591. Further, the defendant must show that the prejudice was such that it was reasonably certain he or she could not have obtained a fair trial. 271 Kan. at 591-92.
Our Supreme Court has noted a variety of factors that may be considered in determining whether the atmosphere is such that a defendant’s right to a fair trial would be jeopardized:
“[T]he particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and it's resultant effects, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which tire venire is drawn. [Citation omitted.]” Higgenbotham, 271 Kan. at 592.
The defendant knits together a variety of voir dire responses and incidents to support his argument. The defendant’s complaints can be summarized as follows: only 58 of 107 venire members were questioned; only five of those questioned said they had never heard of the case; two jurors responded to the question of whether they could be impartial by saying they “think” or “feel” they could be; not enough venire members were excused for cause; three venire members stated concerns about the community reaction if they served on the jury; some venire members stated they had read or heard information about the case and had an opinion about it; one venire member s wife had served on the jury at the first trial and told him the community members blamed the first jury for not convicting the defendant; two venire members provided inconsistent answers; some venire members indicated they “thought” they could be impartial or could “probably” be impartial; and the venire panel was exposed to two venire members expressing their opinion that the defendant was guilty.
Examining the defendant’s contentions in light of the factors laid out in Higginbotham, clearly there was widespread publicity regarding the victim’s murder throughout the community. Although the severity of the offense and the relatively small size of the community may weigh in favor of the defendant’s argument, on the other side is the fact jury selection was accomplished in 1 day and only just over half of the venire members needed to be questioned before a jury could be selected. Moreover, the answers provided by the selected jurors indicated they would not be affected by the pretrial publicity and would impartially consider the facts before them.
Nearly all of the responses cited by the defendant involved venire members but not the selected jurors. The purpose of voir dire is to allow the parties to select competent jurors who are without bias, prejudice, or partiality. State v. Hayes, 258 Kan. 629, 631, 908 P.2d 597 (1995). Here the venire members who indicated they might be influenced by the community or the publicity surrounding the trial were eliminated either for cause or through the parties’ peremptory challenges, leaving a panel of jurors who indicated they could be impartial regardless of any publicity they had encountered. Voir dire served its purpose here, and a jury was chosen comprised of individuals who were not prejudiced by pretrial publicity or community sentiment.
The 12 jurors in this case were either not exposed to pretrial publicity or else stated it would not affect their consideration of the evidence. A number of potential jurors were excused for cause, and the defendant passed the remaining panel for cause. The district court took care during voir dire and trial to ensure the jurors were not prejudiced by the publicity surrounding the case. In light of the voir dire record as a whole and Kansas case law, , the de fendant has not shown his substantial rights were prejudiced by the venue. We firmly conclude the district court did not abuse its discretion in denying the defendant’s motion for change of venue and motion to hire a venire expert.
Alternative-Perpetrator Theory
The defendant’s next contention on appeal is the district court violated the defendant’s constitutional right to a fair trial by preventing the defendant from presenting a complete defense. Specifically, the defendant asserts the district court erred in granting the State’s motion in limine based on the third-party evidence rule to exclude the defendant’s proffered evidence of a third party’s culpability.
The State contends the defendant provided nothing but “conjecture,” “conspiracy,” and “speculation” in accusing the victim’s son-in-law, James Cook.
We review a district court’s decision on a motion in limine under the abuse of discretion standard. State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006), disapproved on other grounds State v. Anderson, 287 Kan. 325, 197 P.3d 409 (2008). Similarly, a district court’s decision under the third-party evidence rule is reviewed for an abuse of discretion. State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007).
The purpose of an order in limine is to assure a fair and impartial trial to all parties by excluding from trial inadmissible evidence, prejudicial statements, and improper questions. State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002). Such an order should be granted if the district court finds (1) the material or evidence at issue will be inadmissible at trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will likely prejudice the jury. State v. Horn, 278 Kan. 24, 37, 91 P.3d 517 (2004).
When the district court grants an order in limine and the evidence is properly excluded at trial, the party limited by the order must make a proffer of the excluded evidence to preserve the issue for appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). Here, the defendant made such a proffer during trial and so preserved the issue.
A defendant has the right under the state and federal Constitutions to present the theory of his or her defense. Evans, 275 Kan. at 102. “The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates tire defendant’s fundamental right to a fair trial.” State v. Baker, 281 Kan. 997, 1008, 135 P.3d 1098 (2006). However, the right to present a defense is subject to the statutory rules of evidence and case law interpreting those rules. 281 Kan. at 1008.
Here, the district court considered and excluded the evidence under the third-party evidence rule. Both parties cite State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev’d on other grounds Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006), for its discussion of the third-party evidence rule in Kansas. Although Marsh was reversed by the United States Supreme Court as to the death penalty issue presented in that case, our Supreme Court has stated that Marsh.remains good law as to the third-party evidence rule. See Brown, 285 Kan. at 303.
In Marsh, our Supreme Court stated the third-party evidence rule as follows: “ “Where the State relies on direct rather than on circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is incompetent absent some other evidence to connect the third party with the crime.’ [Citation omitted.]” Marsh, 278 Kan. at 530. The Marsh court clarified that the third-party evidence rule “has limited application and is most assuredly subordinate to the general rules of evidence and the statutory definition of relevancy in K.S.A. 60-401(b).” 285 Kan. at 531. The application of the rule requires “the sound exercise of judicial discretion dependent on the totality of facts and circumstances in a given case.” 285 Kan. at 531.
While the Marsh court appeared to limit the third-party evidence rule to a specific situation, our Supreme Court has since seemed to broaden the rule’s application. In State v. Adams, 280 Kan. 494, 505, 124 P.3d 19 (2005), our Supreme Court read Marsh’s statement of the third-party evidence rule as a “totality of the facts and circumstances” test to determine whether the proffered evidence effectively connects the third party to the crime charged, with motive evidence a component of this totality that may be relevant if there is other evidence connecting the third party to the crime. See Brown, 285 Kan. at 302-05. This reading may be supported by a line in Marsh in which the court describes the rule it is discussing as “the rule excluding third-party motive evidence.” 278 Kan. at 531. Thus, under Marsh and Adams, it appears that any third-party evidence is to be evaluated under Adams’ totality of the circumstances test, while third-party motive evidence is further limited as set forth in Marsh.
Under the contours of the rule as set forth in Marsh, Adams, and Brown, we are convinced the district court appropriately applied the rule here. The district court evaluated the totality of the defendant’s proffered evidence and determined it did not effectively connect Cook to the crime charged. The defendant’s proffered evidence was that Cook had a possible motive to commit the crime because his wife would benefit from the inheritance and that as a first-aid officer at the defendant’s place of work, Cook could have had the opportunity to collect the defendant’s hair from headgear and blood from used bandages to later plant at the crime scene while staying there overnight. This evidence is nothing more than mere speculation and conjecture and does not connect the third party to the crime, and therefore the district court did not err in excluding it. See Evans, 275 Kan. at 104-05.
Prosecutorial Misconduct
The defendant next asserts the State committed prosecutorial misconduct by eliciting statements from a witness, Roy Dean Hart, at the second trial which were not elicited at the first trial. The defendant alleges the State intentionally withheld the witness’ new information from the defense after the State discovered the new information a week before the second trial. The defendant argues the new information undercut his defense and may have “tipped the scales in favor of a conviction,” therefore requiring reversal and remand for a new trial.
The State contends it was under no duty to disclose the inculpatory evidence to the defense and argues Hart was an endorsed witness by the filing date of the original complaint.
The defendant raised this issue below in a motion for mistrial made after Hart’s testimony and in a motion for new trial. The district court denied both motions, finding the State was under no duty to disclose the new testimony to the defense because there was no report generated and Hart was an endorsed witness.
An appellate court reviews a district court’s decisions on motions for mistrial and motions for a new trial under an abuse of discretion standard. State v. Albright, 283 Kan. 418, 425-26, 153 P.3d 497 (2007); State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006). With regard to a motion for mistrial, the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced. Albright, 283 Kan. at 425-26.
In determining whether the defendant’s substantial rights to a fair trial were prejudiced, it may be helpful in some situations for the appellate court to use a prosecutorial misconduct-type analysis. 283 Kan. at 426. This case appears appropriate for such an analysis, due to the nature of the defendant’s allegation.
Review of an allegation of prosecutorial misconduct involves a two-step analysis. First, the appellate court must determine whether the prosecutor’s conduct fell outside the acceptable boundaries and so actually constituted misconduct. If misconduct occurred, then the second step is for the appellate court to consider whether the misconduct prejudiced the jury against the defendant and denied the defendant a fair trial. See Albright, 283 Kan. at 428.
In completing the second step of the analysis, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct indicated ill will by the prosecutor; and (3) whether the evidence at trial was of such a direct and overwhelming nature that the misconduct would likely have had little, if any, weight in the minds of jurors. None of the three factors is individually controlling, and the third, harmless error-type factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), have been met. Albright, 283 Kan. at 428.
The first determination in the analysis here is whether the prosecutor s conduct constituted misconduct.
Hart was endorsed as a witness on the complaint and testified at the preliminary hearing. As we understand, Hart did not testify at the first trial. According to the defendant and the State, part of the defendant’s strategy, at both trials, was to suggest someone other than the defendant may have left traces of defendant’s DNA in the victim’s house while the defendant was tilling the victim’s garden. According to the State, after this defense strategy was revealed at the defendant’s first trial, the prosecutor spoke with several of the State’s endorsed witnesses prior to the second trial to determine whether they had any information regarding the tilling. The State learned Hart had such information, and the information seemed to contradict the defense theory. The State presented Hart’s testimony on this issue at the second trial. Hart testified the defendant had only tilled the victim’s garden once,' about 8 years before the victim’s death.
Prosecutors have a positive duty to disclose exculpatory evidence to a defendant. State v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006). However, there is no such duty as to inculpatory evidence. See State v. McIntyre, 259 Kan. 488, 496, 912 P.2d 156 (1996). Indeed, our Supreme Court has held that “to grant a mistrial based on evidence withheld by the prosecution, the evidence must be clearly exculpatory, and the evidence must be material so that its suppression was clearly prejudicial to the defendant.” [Citations omitted.] State v. Aikens, 261 Kan. 346, 382, 932 P.2d 408 (1997); see Francis, 282 Kan. at 150.
The testimony at issue here was inculpatory; consequently, the prosecutor had no independent duty to disclose the evidence to the defendant. The State’s failure to disclose was not prosecutorial misconduct and did not prejudice the defendant’s substantial rights to a fair trial. Accordingly, the district court did not abuse its discretion in denying the defendant’s motion for mistrial and motion for new trial on these grounds.
Lesser Included Offenses
The defendant’s next contention is the district court erred when instructing the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. The defendant asserts his “all-or-nothing” trial strategy required either a conviction of premeditated first-degree murder or else a not guilty verdict.
Before reaching the merits of the defendant’s argument, we note our Supreme Court has held a conviction of second-degree murder will not be disturbed on appeal just because the evidence at trial showed premeditation and, “therefore, theoretically precludes any conviction of second-degree murder or other lesser degrees of homicide.” State v. Carpenter, 228 Kan. 115, 123, 612 P.2d 163 (1980). However, there may be reversible error for a district court to give a second-degree murder instruction over the defendant’s objection where there is no evidence to support the instruction. 228 Kan. at 123; see State v. Cordray, 277 Kan. 43, 53-55, 82 P.3d 503 (2004).
Under K.S.A. 22-3414(3), the district court has a duty to instruct on any lesser included offenses for which there is some evidence which would reasonably justify a conviction. 277 Kan. at 53-54. The issue raised by the defendant here is essentially whether there was sufficient evidence to support the giving of lesser included instructions under K.S.A. 22-3414(3). We apply a de novo review. See State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008).
Our Supreme Court has refused to grant a criminal defendant the right to an all-or-nothing defense. Instead, where a defendant tries to assert such a defense, the district court must still be mindful of the court’s duty under K.S.A. 22-3414(3), and the question of whether lesser included offense instructions should be given still turns on whether the instructions are supported by the evidence. See Cordray, 277 Kan. at 53-55.
Intentional second-degree murder is a lesser included offense of premeditated first-degree murder. The difference between the crimes is the latter includes the element of premeditation. State v. Jones, 279 Kan. 395, 401, 109 P.3d 1158 (2005). Intentional second-degree murder is the intentional killing of a human being. K.S.A. 21-3402(a).
To show premeditation here, the State relied upon evidence showing the victim was strangled. Premeditation “is the process of thinking about a proposed killing before engaging in the homicidal conduct.” Jones, 279 Kan. at 402. Death by strangulation can be strong evidence of premeditation, but such does not necessarily preclude a conviction of second-degree murder. See 279 Kan. at 403-06. Although the defendant in Jones requested the second-degree murder instruction rather than objecting, Jones’ discussion of the issue is valuable in our analysis.
In Jones, a strangled body was found in a hotel room registered to the defendant. Witnesses testified the defendant and the victim had previously been seen together several times. The evidence showed the strangulation was at least partially accomplished with an instrument.
Jones was charged with premeditated first-degree murder, and he requested intentional second-degree murder and voluntary manslaughter instructions. The district court denied this request, finding the evidence did not support the instructions. Jones was convicted of premeditated first-degree murder. Our Supreme Court concluded Jones was entitled to a second-degree murder instruction. Although the Supreme Court acknowledged there was “substantial” evidence of premeditation, the court determined a jury “could also reasonably find that no premeditation existed” because of the “complete lack of evidence explaining exactly why [the victim] was killed.” 279 Kan. at 403-06. The Jones court stated: “While the evidence points to Jones as the perpetrator, legitimate questions exist as to his state of mind at the time of the murder, i.e., whether [the victim] was killed with premeditation or simply with intent, however prolonged.” 279 Kan. at 404.
This case presents a similar factual scenario. As in Jones, there is evidence pointing to the defendant as the perpetrator but a lack of evidence explaining why the victim was killed. Further, following the State’s questioning of the coroner regarding the time required for strangulation, which was most, if not all, of the evidence of premeditation, the defendant’s counsel asked questions on cross-examination which were intended to weaken, and may have weakened, the evidence of premeditation.
The defendant claims he “presented no evidence to mitigate premeditation” and raised only the issue of identity, not the manner in which the homicide occurred. Although this defendant does not explain this point further, perhaps the defendant is referring to Kansas case law indicating a defendant offering an alibi defense is not entitled to lesser included instructions because to receive a lesser included instruction a defendant must offer positive testimony expressly challenging the State’s version of how the crime occurred. See State v. Lewis, 256 Kan. 929, 933-35, 889 P.2d 766 (1995). Howéver, the. Supreme Court in Lewis did not explain how its conclusion meshed with its holding 2 years before in State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993), that “[e]vidence supporting a lesser included instruction may be presented by either the defendant or the State.” Lewis may not have addressed Coleman simply because the State’s version of events in Lewis did not leave open the possibility of a lesser included offense.
Lewis may be distinguished from this casé in three ways. First, the defendant did not testify himself and presented no alibi defense through positive testimony, although alibi statements by the defendant were brought out "through the testimony of the State’s witnesses. See Jones, 279 Kan. at 406. Second, the critical point here is not the manner in which the homicide occurred, but the defendant’s state of mind. See State v. Casteal, No. 94,133, unpublished opinion filed June 30, 2006, rejecting a similar argument by the defendant in a first-degree murder case, who relied on an alibi defense and objected to the giving of an attempted second-degree murder instruction. The third distinction is the State’s evidence here, under Jones, could support two versions: premeditation or mere intent. Under Coleman, the State’s evidence may support a lesser included instruction.
In light óf Jones and the evidence presented here, the jury could reasonably have found the defendant intentionally killed the victim without premeditation. The district court did not err in submitting the intentional second-degree murder instruction to the jury.
Voluntary manslaughter is a lesser includéd offense of first-degree murder. Gallegos, 286 Kan. at 874. The jury here was instructed under K.S.A. 21-3403(a), which defines voluntary man slaughter as the intentional killing of a human being committed upon a sudden quarrel or in the heat of passion.
Arguably, the State’s evidence here could have supported a finding the defendant killed the victim upon a sudden quarrel or in the heat of passion, given the DNA evidence in the victim’s bathroom suggesting the defendant’s and the victim’s blood were mixed.
However, even if the instruction was erroneous, such error was harmless. See State v. Murray, 285 Kan. 503, 535, 174 P.3d 407 (2008), if substantial justice has been done, when viewed in light of the whole trial record, errors not affirmatively causing prejudice to the substantial rights of the defendant do not require reversal. The defendant was convicted of second-degree murder, not voluntary manslaughter.
The district court did not commit reversible error in instructing the juiy on the lesser included offenses of second-degree murder and voluntary manslaughter.
The Sentence Imposed
The defendant next asserts the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by sentencing him to the upper number in the sentencing guidelines grid box. The defendant contends any factors justifying the maximum presumptive sentence were required to be proven to a juiy beyond a reasonable doubt. To support its assertion, the defendant cites Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The State contends the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., allows the district court the discretion to choose any of the numbers within the assigned grid box and argues this provision does not violate the constitutional dictates of Cunningham or Apprendi.
Our Supreme Court has recently rejected, in other cases, the same argument offered by the defendant here. See State v. Cook, 286 Kan. 1098, 1112-13, 191 P.3d 294 (2008); State v. Johnson, 286 Kan. 824, 840-52, 190 P.3d 207 (2008). The Johnson court undertook an extensive analysis of this argument, as well as Cunningham and Apprendi, before concluding that Kansas’ statutory scheme allows the district court discretion to choose any sentence within the presumptive box and does not violate the holdings in Cunningham or Apprendi. 286 Kan. at 840-51.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). There being no such indication here, this portion of the defendant’s appeal must be dismissed for lack of jurisdiction under K.S.A. 21-4721(c)(1). See Johnson, 286 Kan. at 851-52.
Newly Discovered Evidence
The defendant’s final issue is the district court erred in denying his motion for new trial based on newly discovered evidence, namely, the subsequent conviction of the detective who served as the primary evidence custodian in this case. The detective’s conviction was for removing guns from the evidentiary locker in unrelated cases and selling them for personal profit. The detective’s actions occurred prior to trial in this case. The defendant asserts this information “raises questions not just about [the detective’s] credibility, but the foundation and reliability of all of the State’s evidence under his control,” and presenting it to the jury would likely change the result of the trial.
The State responds the claimed newly discovered evidence relates only to the detective’s credibility, which is not a proper basis for a new trial. The State further asserts the information was not material enough to likely produce a different result upon retrial.
This court reviews a district court’s decision on a motion for new trial based on newly discovered evidence under an abuse of discretion standard. State v. Cook, 281 Kan. 961, 991-92, 135 P.3d 1147 (2006).
There are two prongs to the test for determining whether a new trial based on newly discovered evidence is warranted: “(1) whether the defendant has met the burden of establishing that the newly proffered evidence could not with reasonable diligence have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. [Citation omitted.]” 281 Kan. at 992. New trials on the grounds of newly discovered evidence are not favored, and such motions must be viewed with caution. State v. Trammell, 278 Kan. 265, 283, 92 P.3d 1101 (2004).
The district court found, and the parties do not dispute, the first factor was met here. The only question is whether the evidence was material enough to warrant a new trial.
Our Supreme Court has stated a “new trial should not be granted on the basis of newly discovered evidence which tends only to impeach or discredit the testimony of a witness.” State v. Reed, 256 Kan. 547, 560, 886 P.2d 854 (1994); but see State v. Norton, 277 Kan. 432, 436-43, 85 P.3d 686 (2004) (granting defendant in drug possession and sale case a new trial based on newly discovered evidence that confidential informant was subsequendy arrested for drug activity).
The defendant contends the detective’s actions raise “questions not just about his credibility, but the foundation and reliability” of the State’s evidence. “Reliability” is synonymous with “credibility.” West’s Legal Thesaurus and Dictionary 198 (1985). The defendant acknowledges the State was “asking [the jury] to trust the evidence [the detective] was bringing forward” and contends the jury needed to know of the detective’s misdeeds with regards to evidence to assist it “in making that determination of how much to trust that evidence.”
Regarding the defendant’s challenge as to “foundation,” foundation is not a question for the jury, but for the trial judge. See State v. Sanford, 250 Kan. 592, 604, 830 P.2d 14 (1992). The defendant’s challenge apparently goes to the chain of custody of the evidence presented by the detective. At trial, the detective testified as to the chain of custody of each item of evidence without challenge by the defendant. The test for chain of custody is a reasonable certainty the object has not been materially altered, and any deficiency in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. Horton, 283 Kan. 44, 62, 151 P.3d 9 (2007). Arguably, this evidence would relate to credibility, which is disfavored by our Supreme Court as grounds for a new trial. The newly discovered evidence does not show the detective mishandled the evidence in this case, nor is the detective’s testimony as to the chain of custody of the evidence contradictory.
Even if the newly discovered evidence rises above mere impeachment evidence, such evidence is not material enough to make it likely there would be a different result on retrial. The district court properly denied the defendant’s motion for a new trial based upon newly discovered evidence.
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Opinion by
Simpson, C.:
The theory upon which this action is sought to be maintained is, that the acts complained of are a breach of the covenants for quiet and peaceable possession. The argument is, that the plaintiif in error is the owner of, and is occupying as a residence, lots 27 and 29, in block 2, of Sheldon & Hamblin’s addition to the city of Ottawa ; that these lots front on a street sixty-seven feet wide, designated on the recorded plat of that addition as Main street; that the plaintiif in error bought his lots, erected his dwelling house and outbuildings, and constructed his sidewalks with reference to that street and its width as designated on the plat; that the use and enjoyment of the full width of that street, as an appurtenance to these lots, have been disturbed by the act of Sheldon in platting another addition, immediately west and adjoining, by which he has designated the west thirty feet in width of Main street as Princeton road, and thereby committed a breach of this covenant, by inducing and requiring purchasers of lots on the opposite side of Main street from Molitor, to erect their dwelling houses on the west and their objectionable outbuildings on the east end of their lots, thus subjecting him to noxious smells, and depreciating the value of his property from twenty-five to fifty per cent. It may be, and it is probably the law, that the use and enjoyment of the full width of a street upon which lots abut or front, is an appurtenance to the lots, and that they are within x ^ a covenant for quiet and peaceable possession of lots and their appurtenances; and if this is true, the argument of the plaintiff in error extends too far. The covenant may go the full width of the street, but the most liberal construction would not stretch it across the lots abutting the opposite side of the street. The covenant ceases to be operative when the boundary line of the street is crossed. The certification and filing of the plat of the addition for record estop Sheldon from a denial that the street is sixty-seven feet wide, and his deed to Isabelle Green and its covenants that inure to the benefit of Molitor by subsequent conveyances, bind him to do no act that will interfere with appurtenances to the lots conveyed, the only one being, so far as the street is concerned, the free use and enjoyment of its full width. This covenant cannot be so liberally construed as to embrace the character of the buildings to be erected on the opposite side of the street, or to control the action of owners of other lots in facing or fronting their dwellings as they may choose.
On May 14,1870, H. E. Sheldon and G. W. Hamblin duly platted an addition to the city of Ottawa, adjoining the original plat of the city on the south, and designated a street sixty-seven feet wide called Main street. The addition was divided from the original plat by a street called Seventh street, and Main street in the addition runs from a point on Seventh street opposite the center of block 124 on the original plat, due south the entire length of the addition. In November, 1870., Sheldon & Hamblin duly conveyed lots 27 and 29 in block 2, in their addition, to Isabelle Green, “ with the appurtenances and all the estate, title and interest of the parties of the first part therein,” with the usual covenants of warranty for quiet and peaceable possession, etc. The .plaintiff in error holds his title and these covenants through certain mesne conveyances. He acquired title in October, 1882, and immediately took possession, erected a good dwelling house and outbuildings, dug a well, planted trees, constructed sidewalks, and has resided thereon since sometime in 1883. At the time of his purchase and improvement, the iand on the opposite side of the street had not been platted into town lots, but was a corn field. Sheldon owned the ground on the west side of Main street, opposite the residence of Molitor; and on the 12th day of April, 1884, he and Robert Atkinson, who owned some land west of Main street, platted an addition to the city of Ottawa, and called it Sheldon & Atkinson’s addition. On the plat of this addition, the west thirty feet in width of Main street in Sheldon & Hamblin’s addition is designated as Princeton road. Out of this grows the contention of counsel for plaintiff in error, as one of the breaches of the covenant, that this designation of Princeton road of the width of thirty feet, leaving Main street only thirty-seven feet wide, is an ouster, or a disturbance of the right of Molitor to the use and enjoyment of the full width of Main street as designated on the plat of Sheldon & Hamblin’s addition. But this cannot be so, for the very evident reason that when Sheldon & Hamblin filed the plat of their addition for record, on the 14th .... day of May, 1870, designating Main street as sixty-seven feet wide, the fee to the street immediately vested in the county, subject to the trust for public use, and from that moment Sheldon and Hamblin, or either of them, could do no act that could deprive any person owning lots abutting on said street, or the general public, from the use and enjoyment of the full width of the street; hence the later act of Sheldon, in filing the plat of Sheldon & Atkinson’s addition, and attempting to designate a part of Main street in the plat of Sheldon & Atkinson’s addition as Princeton road, could not have in law the effect claimed for it by the plaintiff in error.
Another breach of the covenant is alleged to have occurred when Sheldon induced and required purchasers of lots in Sheldon & Atkinson’s addition to erect their dwellings on the west and their outbuildings on the east end of their lots. South Main street in Sheldon and Atkinson’s addition is a continuation of Main street on the original plat of the city in a southerly direction. It is the first street west of Main street in Sheldon & Hamblin’s addition, and is so near to it that there is only one tier of lots between Main street in the Hamblin addition, and South Main street in the Atkinson addition, the lots between them fronting on both streets. Persons who purchased these lots erected their dwelling houses on the west end of their lots, so that their residences would face South Main street, a continuation of Main street on the original plat. This necessarily caused them to erect their stables, pig pens, privies, etc., on the east end, and facing on Main street in Sheldon & Hamblins addition. Is this a breach of his covenants ? We think not. They cannot be so liberally construed as to embrace the character of buildings upon the opposite side of the street, or be held to govern the choice of owners of other lots as to how they would front their residences. Molitor, as we view this cause, is in the quiet enjoyment and peaceable possession of all that passed to him by reason of the conveyance to Isabelle Green and the subsequent grantees, and can find no act of Sheldon that has had the legal effect to oust or disturb that enjoyment and possession. The learned judge who tried the case below says:
“ I am -wholly unable to see, from any view I take of the evidence, how it makes out a cause of action. I shall assume for the purpose of this demurrer that all the covenants made by Sheldon and Hamblin to Isabelle Green, have passed by the conveyances read in evidence to Molitor, and that he is entitled to the full protection the covenants afford. I shall also assume that Main street, as designated in the original plat of Sheldon & Hamblin’s addition, was sixty-seven feet wide, and that when the addition was laid out the parties purchased on the faith of a street being so opened and dedicated to the uses of the public. Thus we have an addition laid out several years ago, called ‘Sheldon & Hamblin’s addition,’ on one side of which there was a street designated- as ‘ Main street,’ and sixty-seven feet wide. Opposite to that addition, and to the westward of it across this Main street, was a tract of vacant land. Molitor bought lots 27 and 29 in block 2, of Sheldon & Hamblin’s addition, aud at that time there was opposite to these lots a corn field, or what had'been a corn field a year before; a vacant tract of land, not subdivided into lots and streets and alleys. That is the evidence on that point.
“Sometime later, Sheldon, the defendant here, in connection with Robert Atkinson, laid out upon this tract of vacant land another addition to the city of Ottawa, which they called ‘Sheldon & Atkinson’s addition,” and through the new addition so laid out they projected a street which they called ‘South Main street.’ This left between South Main street in the latter addition, and Main street in the former addition, certain lots extending from one street to the other. These lots fronted upon both streets, precisely as much upon Main street as upon South Main street. Sheldon and Atkinson, it appears, afterward made conveyances of the lots so fronting upon the two streets to various parties, and although it is not offered in evidence, it appears that parties purchasing entered upon the lots and erected their dwellings and outbuildings thereon. They have erected in the main, perhaps altogether, their dwelling houses fronting west on South Main street, and the outbuildings on the other end of the lots, fronting on Main street. There is some evidence that the Adventist church people purchased lots on the extreme southern end of block 2 of the new addition. I think it is something like a thousand feet away from and south of Molitor’s property, and with the lot purchased for a church they purchased some three or four other lots. At the time they purchased the lots they entered into an agreement with Sheldon, stipulating that they would front their church on South Main street, and the church was accordingly built on that street, but it does not appear that any outbuildings were erected. Afterward, by mutual consent, the agreement with reference to the frontage of the buildings was rescinded, the deed was taken up and destroyed, and another deed given without such restriction; so that there is no agreement with reference to the other lots now in existence. It also appears that Sheldon conveyed to Bodley three lots without any such agreement.
“There is no evidence that I am able to discover, of any agreement between Sheldon and Atkinson and the parties to whom they may have couveyed the lots, as to which way they should front their buildings. I think that the evidence shows that the parties purchasing the lots which fronted on both streets, have simply exercised an option; have exercised a right which they had, and erected their buildings in a way they saw fit. And I do not understand that any party who buys property in a city has a lawful right to say what sort of buildings shall be erected in his vicinity, or immediate frontage, except to prevent the erection of such buildings or structures as will be a nuisance. For instance, I own a lot on Elm street, in this city. If I, because of some peculiarity or some eccentric notions, should have erected my house fronting on the alley, and put my woodsheds, barn, and privy fronting on the street, I presume that it would be very obnoxious to my neighbors; but unless I allowed those structures to become a nuisance, they would have no lawful redress. I would be exercising a right which I had, to put my buildings where I pleased upon my lots; but the very moment they became a nuisance, my neighbors would have a remedy in the law. Now it is true that the covenants in the deed give the quiet and peaceable possession of the property, in the manner and for the particular purposes intended in the grant. But here this man has the use, benefit and enjoyment of his property precisely as when he purchased it. He has in his front a street sixty-seven feet wide, and named Main street. Sheldon has no power to change the name of that street; that is entirely beyond his power. The street was dedicated to the public, and there is no power to change the name except in the city council; and the making and filing of a plat of another addition, afterward, in which that street is called ‘the Princeton road/ did not change the name of the street. And besides, no party would lose the benefit and enjoyment of the street by change of the name Main street to the Princeton road; that would not interfere with anybody’s property rights. It is suggested that this line of buildings erected on Main street has resulted in a depreciation of the property of the plaintiff, and of other parties living upon that street, because of their unsightliness and be-’ cause of the noxious smells. Now if that be true, whenever these things become nuisances, then the parties who erected them will be liable for such damage as may result; but until they do become nuisances, nobody is liable. Sheldon had an undoubted right to lay out the addition; he violated no law in so doing. And having laid it out, and sold the lots, it follows that if anybody is liable it is the parties erecting the buildings. But the evidence here utterly fails to show that Sheldon had anything whatever to do with the building of the barns and privies; and if Sheldon had been a party to the erection of these outbuildings, he certainly would not be liable in this action for damages, unless it is shown that the buildings were nuisances. But in the first place, the evidence fails to show that they are nuisances; and in the second, it fails to show that Sheldon had anything to do with putting them there. Now, that Molitor has suffered no injury, I do not pretend to deny, but it is incident to a purchase of property anywhere. ‘A’ may go out to'the south line of this city and purchase five acres of land with the view of having plenty of room all around him, and being rid of the disagreeable features incident to a closely-packed population. He may erect a fine dwelling house and improve the purchase till he has made it very valuable, and yet some day ‘B’ may purchase ten acres of vacant land adjoining him, and lay it out into an addition, with blocks, and streets, and alleys, and may sell the lots to people who will erect a very inferior class of houses. All this may depreciate the value of A’s property, and yet if the inferior buildings do not become a nuisance, he has no legal remedy. A livery stable may be erected in front of his residence upon which he has expended much money, and nobody will deny that it diminishes the value of the property; but unless it becomes a nuisance, I see no legal redress.
“The evidence in this case fails to show a cause of action, and the demurrer must be sustained.”
We find no material error in the record, and therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The question decided in the foregoing case is also presented in this one from the same court. Upon the above authority, the judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the plaintiff against the defendants to recover the sum of one hundred and fifty dollars. Plaintiff also filed his affidavit for an attachment with a sufficient undertaking, and thereupon the clerk of the district court issued an order of attachment, and the sheriff of Harper county attached a portion of a stock of groceries belonging to the defendants. Afterward the attorneys for the defendants made a motion before the district judge at chambers, in the city of Wellington, Sumner county, to dissolve the attachment on the ground that the affidavit therefor had been sworn to before William M. Glenn, notary public, but one of the attorneys of record for the plaintiff. On the hearing of the motion, plaintiff asked leave of the court to amend the attachment affidavit, by swearing to it before some officer duly authorized to administer oaths, other than his attorney in the case. The district judge refused to permit the affidavit to be amended, and ordered the attachment to be dissolved. At the time of hearing this motion the district court was in session in Sumner county, with a judge pro tem. on the bench. The plaintiff brings the case here.
Plaintiff complains that the district judge at chambers was acting without jurisdiction of the case, as a judge pro tem. was holding court at that time in the same county. There is no showing that the judge pro tem. was not properly selected and sitting in the case in which the judge of the district court was disqualified. In the absence of any proof to the contrary, we must assume that the judge pro tem. was properly holding court at the time. (Garvin v. Jennerson, 20 Kas. 371.) The parties have no cause to complain because the judge pro tem. was trying a case in which they had no interes, so long as the legally elected judge of the district court heard and determined the motion in dispute, at chambers. This action was brought in Harper county, one of the counties in the nineteenth judicial district. This motion could not have been heard before any other person than the judge of the district. (Comp. Laws of 1879, ch. 28, §2.) The plaintiff did not question the power of the judge at chambers, until the decision was rendered against him. He makes that objection for the first time in this court.
Plaintiff makes the further objection, that the district judge refused to permit him to file an amended affidavit. The decision of this question compels us to determine whether the affidavit upon which the order of attachment issued was voidable only, or wholly void. By § 1 of the act relating to oaths, the general power, without any exception or limitation, is given to notaries public, “to administer oaths pertaining to all matters wherein an oath is required.”
By § 348 of the civil code, the general power, without any exception or limitation, is given to notaries public to take depositions.
By § 345 of the civil code, the general power, without any exception or limitation, is given, to any person authorized to take depositions to act as the officer before whom affidavits may be taken and authenticated.
Under § 350 of the civil code, however, “ the officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding; ” and therefore, inferentially, “ the officer before whom affidavits are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.” Hence, it will be seen that notaries public have the general power to take depositions or affidavits in all cases, and without any exception or limitation. There are cases, however, where it would be improper or irregular for a notary public to exercise such power, as where the deposition or affidavit is to be used in some suit or proceeding where the notary public is a relative or an attorney of either party to such suit or proceeding, or in some manner interested in the event of the suit or proceeding; and in such cases, he should not exercise the power to take the deposition, or the affidavit. If he should do so, however, it would not be acting without power, but would be an irregular and wrongful exercise of power. Where any officer or agent acts with power, but only irregularly and wrongfully, his acts are not void, but at most only voidable. Parties to a suit cannot confer power upon an unauthorized person to administer oaths, or to take depositions or affidavits. The power or authority must come from the law, or it cannot exist. The parties themselves cannot, even by consent or agreement, create it. Hence, supposing a notary public to be powerless to act iu the particular case' under the law, then the parties could not by consent or agreement confer power upon him to administer oaths or to take depositions or affidavits, where he might be a relative of either party in the slightest degree, or an attorney of either party in any manner or degree, or interested in the event of the suit in the slightest or most remote degree.
In a case like the present, where the affidavit was originally sworn to before an attorney of one of the parties, no harm can be done by giving leave to amend the affidavit by having it sworn to before some other person; certainly not if the facts stated in the affidavit are such that no person will again swear to them. If some person will again swear to them, the opposing party may show if he can, that the alleged facts are not true.
In Wade on Attachment, § 60, two cases are cited in support of the claim that the officer before whom an affidavit is made must have authority to administer the oath in that particular case, otherwise the affidavit is void. (Owens v. Johns, 59 Mo. 89; Greenvault v. Bank, 2 Doug. [Mich.] 498.) In the Missouri case, the action was instituted by the clerk of the circuit court, and he swore to the attachment affidavit before his own deputy. Of course, in such a case, the whole proceeding was a nullity. The writ was issued without authority of law, as the deputy had no more power to administer the oath to the clerk, than the clerk would have had to have sworn himself. In the Michigan case, the attachment affidavit was sworn to before the clerk of the circuit court in vacation. The clerk of the court had no authority to administer oaths or take affidavits, in vacation, and hence the affidavit was void, as the officer was not authorized to administer any oath at the time. Those cases are not exactly like the one at bar, and do not fully support the text cited.
As the attachment affidavit in this case was not wholly void, furtherance of justice, the plaintiff should have been permitted to file an amended affidavit as he requested. The order of the district judge will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Green, J.:
In this negligence action, Mai T. Le originally sued Dorothy.-.Gibson for personal injuries that Le sustained during an automobile accident. Gibson passed away before Le was able to obtain service of process on-her. Le later substituted Paul S. Joslin, Special Administrator of the Estate of Dorothy K. Gibson, Deceased, (Joslin) as a defendant for Gibson. Le now appeals from the trial court’s order granting summary judgment to Joslin on three alternative .grounds. First, .Le contends that the trial erred in finding that good cause did not exist tó'support the order granting her an additional 30 days to obtain service of process on Dorothy Gibson. We disagree. The record demonstrates that when Le moved for an additional 30 days to obtain service of process on Gibson, she had not made sufficient efforts to locate and serve Gibson. As a result, Le failed to meet.her burden under K.S.A. 60- 203(a)(1) to show good cause for the 30-day extension to obtain service of process.
Next, Le maintains that the trial court erred in determining that K.S.A. 60-225, the statute pertaining to substitution of parties, was inapplicable here and that it was necessaiy for Le to amend her petition to name Joslin as a party. We again disagree. Under the plain language of K.S.A. 60-225, Joslin could be substituted for Gibson only if Gibson was a party to the lawsuit. Because Le never obtained service on Gibson before she died, Gibson never became a party to this lawsuit. In order to name Joslin as a defendant in the lawsuit, Le needed to move to amend her pleadings to include Joslin and to relate back the amendment to her original pleadings. Her failure to follow this procedure renders the court without jurisdiction in the matter against Joslin.
Finally, Le contends that the trial court erred in determining that the summons served upon Joslin was invalid. We again disagree. The summons with which Joslin was served was not issued to him and was served before he was a named defendant in the lawsuit. Because proper service of process was never obtained upon Joslin, the trial court was without jurisdiction in the matter against Joslin. Accordingly, we affirm.
On February 17, 2006, Le sued Gibson and Curtis Payne for personal injuries Le sustained from an automobile accident that occurred on February 20, 2004. No summons was issued when the lawsuit was filed. Payne was ultimately dismissed without prejudice from the lawsuit in April 2007. On May 11, 2006, Le obtained an order granting her an additional 30 days after the expiration of the statutory 90-day period following the date of filing of the lawsuit to serve Gibson with process. On that same day, Le, for the first time, requested the issuance of a summons for Gibson. On June 9, 2006, Le requested the issuance of an alias summons for Gibson.
Gibson died on June 2,2006, before she was served with process in this lawsuit. On June 16,2006, Le filed a petition in Lyon County District Court seeking the appointment of a special administrator for Gibson s estate. On that same day, Joslin was appointed as special administrator of Gibson’s estate. Also on that day, Joslin was served with the alias summons issued to Gibson.
On June 16, 2006, Le moved to substitute Joslin for Gibson as a defendant in the lawsuit. On June 30, 2006, the trial court issued an order substituting Joslin for Gibson as a defendant in the lawsuit. On July 20,2006, Joslin answered Le’s petition. Joslin asserted that Le’s action was barred by the statute of limitations and also asserted the defense of invalid service of process.
In March 2007, Joslin moved for summary judgment. Joslin contended that Le’s claim against him was barred by the 2-year statute of limitations under K.S.A. 60-513(a)(4). Joslin raised the following four arguments as to why the service of process on June 16, 2006, was ineffective to commence the lawsuit against him in a timely manner: (1) Le failed to demonstrate to the trial court that she had good cause for requesting the extension of the 90-day statutory period for service of process and, therefore, the order granting the 30-day extension was invalid; (2) Le never properly made Joslin a party to the lawsuit within the limitations period because she never moved to amend her petition under K.S.A. 60-215; (3) Le served Joslin with service of process before he was named as a defendant in the lawsuit and, therefore, the service was ineffective; and (4) Joslin did not have the authority to accept service for and defend Le’s lawsuit under the letters of special administration.
After holding a nonevidentiaiy hearing, the trial court granted summary judgment in favor of Joslin. The trial court agreed with Joslin on his first three arguments and, therefore, granted summary judgment on those three grounds. On Joslin’s fourth argument, the trial court found that the issue was moot.
Standards of Review
An appellate court’s standard of review in summary judgment cases is well established: .
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Additionally, in order to address Le’s arguments on appeal, this court must interpret several statutes. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). “When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008).
I. Was there good cause for Le to be given a 30-day extension to obtain service of process P
First, Le argues that the trial court erred in determining that good cause did not exist to support the ex parte order granting her an additional 30 days in which to obtain service upon Gibson.
K.S.A. 60-203(a), which governs the timing of the commencement of an action, states as follows:
“A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).” (Emphasis added.)
Thus, in order for a plaintiff s lawsuit to be “commenced” on the date it is filed, the plaintiff must obtain service of process within 90 days of the filing date. K.S.A. 60-203(a)(1). The trial court may extend that period to 120 days upon a showing of good cause by the plaintiff. K.S.A. 60-203(a)(1). The showing of good cause by the plaintiff is a condition precedent to the trial court’s , decision of whether to grant the 30-day extension under K.S.A. 60-203(a)(1).
As in many cases, the exact date of the “commencement” of this action is crucial in resolving whether it is barred by the statute of limitations. See Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986). Here, the applicable statute of limitations for Le’s claims is 2 years under K.S.A. 60-513(a)(4). As a result, the statute of limitations for Le’s claims ran on February 20, 2006. Le filed her petition on February 17, 2006, which was 3 days before the statute of limitations ran on her claims. Le did not serve her'petition until after the statute of limitations had expired. Thus, to determine whether Le “commenced” her action within the statute of limitations period, we must examine whether Le properly obtained service of process within the time limits of K.S.A. 60-203(a)(1).
In order for Le’s action to be commenced on the date of filing (February 17, 2006), Le had until May 18, 2006, to obtain service of process, unless the trial court extended the date by an additional 30 days upon a showing of good cause by Le. Le points out that she made application for and obtained an order from the trial court granting her a 30-day extension under K.S.A. 60-203(a)(1) to obtain service of process. The order reads as follows:
“WHEREUPON, the Court, after hearing statements of counsel, renewing the file and being duly advised in the premises, finds that for good cause shoum, the plaintiff is allowed an additional thirty (30) days upon the expiration of the 90-day period following the date of filing, in which to accomplish service upon the above-named Defendant(s), and malee due return thereof.” (Emphasis added.)
Although the trial court’s order contains a conclusory statement that there had been a showing of good cause for the extension, there is nothing in the appellate record to support this statement. Moreover, there is no transcript of a hearing on the requested 30-day extension.
Our Supreme Court and this court have noted that the better practice, if not the required procedure to request such an extension, is by toritten motion under Rule 133 (2008 Kan. Ct. R. Annot. 216), with a ruling by the court documented under Rule 134 (2008 Kan. Ct. R. Annot. 217). Finley v. Estate of DeGrazio, 285 Kan. 202, 208, 170 P.3d 407 (2007); Blue v. Tos, 33 Kan. App. 2d 404, 407, 102 P.3d 1190 (2004), rev. denied 279 Kan. 1005 (2005). The parties inform this court that the order granting the 30-day extension was an ex parte order. There appears to have been no written motion requesting the extension filed with the trial court.
As the appellee points out, without a written motion setting forth the grounds for the requested extension, it cannot be determined what showing of good cause was made. Moreover, Le has not remedied this deficiency by providing affidavits or other evidence demonstrating the showing of good cause that was made. Simply put, the record fails to demonstrate that Le satisfied the condition precedent of K.S.A. 60-203(a)(1) by making the required showing of good cause before the 30-day extension was granted.
On appeal, Le does not argue that she made the required showing of good cause under K.S.A. 60-203(a)(1) before she obtained the ex parte order. Further, Le does not even argue that good cause existed when she obtained the ex parte order. Rather, the record establishes that Le did not even request the issuance of a summons on Gibson until May 11, 2006, the date when she obtained the ex parte order.
In Fidelity Sav. Ass’n of Kansas v. Ricker, 141 F.R.D. 324, 326 (D. Kan. 1992), the federal district court held that the plaintiff had failed to demonstrate good cause under K.S.A. 60-203 to warrant the earlier grant of the 30-day extension to obtain service of process on the defendant. In making such a determination, the court noted that there was no Kansas case that directly addressed the good cause requirement of K.S.A. 60-203. The Fidelity court looked to Fed. R. Civ. Proc. 4(j), an analogous rule concerning good cause and extensions of time for service of process. The court noted that in interpreting the good cause requirement of Rule 4(j), federal courts “have consistently held that, to be entitled to a ‘good cause’ extension, the plaintiff must demonstrate that he has made reasonable and diligent efforts to serve process prior to seeking an extension of time. [Citations omitted.]” (Emphasis added.) 141 F.R.D. at 325-26.
In looking at the facts of its case, the Fidelity court found that there was nothing to indicate that the plaintiff even attempted to serve the defendants before seeking the 30-day extension under K.S.A. 60-203(a)(1). Rather, the court noted that it was apparent that the plaintiff spent the 90-day period gathering information to file an amended complaint rather than attempting to serve the defendants named in die original complaint. The court found that the “plaintiff s conduct falls far short of the ‘reasonable and diligent efforts’ standard required for a showing of ‘good cause.’ ” 141 F.R.D. at 326. As a result, the court reversed the state trial court’s earlier ruling granting the 30-day extension under K.S.A. 60-203.
Here, the record fails to show that any reasonable and diligent efforts were made by Le to locate and serve Gibson before the ex parte order was issued. Instead, the record establishes that Le never even attempted to serve Gibson before obtaining the 30-day extension under K.S.A. 60-203. In her appellate brief, however, Le focuses on the fact that she made three attempts at service upon Gibson (May 13, 14, and 15, 2006) before the statute of limitations expired. Moreover, Le points out that after the expiration of the initial 90-day period, she employed three investigators who made service attempts in both Emporia and Topeka before determining where Gibson lived and that she had died on June 2, 2006. Nevertheless, all of those efforts were made after Le obtained the ex parte order. Le cannot use such efforts to meet the condition precedent for the issuance of the order. Le’s efforts were simply insufficient to meet the required showing of “good cause” for the 30-day extension.
Moreover, Le needed to show good cause before she obtained the 30-day extension, not when the extension is later challenged. Our Supreme Court has rejected an argument that a plaintiff can first obtain an order granting a 30-day extension under K.S.A. 60-203(a)(1) and then, when challenged at a later date, actually establish grounds for good cause. Finley, 285 Kan. at 209.
In her appellate brief, Le makes a short argument that the “unique circumstances” doctrine should be applied here. The United States Supreme Court has rejected application of the unique circumstances doctrine to authorize an exception to a ju risdictional requirement (the timely filing of a notice of appeal in a civil case). Bowles v. Russell, 551 U.S. 205, 214, 168 L. Ed. 2d 96, 105, 127 S. Ct. 2360 (2007). Bowles was cited by our Supreme Court in Finley, 285 Kan. at 210, where our Supreme Court was asked to apply the unique circumstances doctrine. In Finley, similar to the instant case, the trial court dismissed the plaintiff s petition as time barred by the statute of limitations after finding that the plaintiff had failed to show good cause under K.S.A. 60-203(a)(1) to warrant a 30-day extension to perfect service of process. Although our Supreme Court recognized the holding in Bowles, it considered application of the unique circumstances doctrine. Nevertheless, our Supreme Court concluded that the doctrine did not apply, because the concepts of “equity, the interests of justice, good faith, estoppel, or nonparty error,” upon which the doctrine depends, could not be applied to the facts of Finley. 285 Kan. at 209, 213.
Here, even if the unique circumstances doctrine is still viable, no equitable exceptions justify its application. Le has not brought forth any evidence to demonstrate that there was any sort of error outside of her control that prevented her from attempting to serve Gibson before obtaining the 30-day extension. On the contraiy, the record demonstrates that Le had failed to make any efforts to serve Gibson when she obtained the extension. Our Supreme Court has cautioned that the unique circumstances doctrine is one of specific and limited application. Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999). We do not believe that the circumstances in this case warrant application of the unique circumstances doctrine.
In determining that good cause did not exist for Le to be granted an additional 30 days to obtain service of process, the trial court stated:
“Defendant Joslin contends that the order granting plaintiff an additional 30 days within which to obtain service on Dorothy K. Gibson was invalid because good cause did not in fact exist. The parties agree that this Court has the authority to review this issue and determine, based upon the facts now presented, whether good cause existed at the time the order was entered. Upon doing so, the Court concludes that good cause did not, in fact, exist and that the exparte order granting an additional 30 days for service was not supported by the facts. Accordingly, the action against defendant Joslin must be deemed commenced on the date of service upon him, rather than on the date of filing. K.S.A. 60-203.”
The trial court held that because the date of service was more than 2 years after the accident, Le’s action was barred by the statute of limitations under K.S.A. 60-513(a)(4).
In Hogue v. Johnson, 28 Kan. App. 2d 334, 339, 17 P.3d 364 (1999), this court recognized that a trial court has the discretion to change its previous ruling in a case after additional evidence is heard. See Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan. App. 2d 396, 398, 853 P.2d 1175 (1993); Fidelity, 141 F.R.D. at 326 (after defendant moved for reconsideration of trial court’s ruling and case was removed to federal court, federal district court reversed state trial court’s earlier ruling granting plaintiff 30-day extension under K.S.A. 60-203 for service of process).
Here, the record indicates that the trial court was not presented with any evidence when it signed the ex parte order. When evidence was later presented that Le was unable to meet her burden to show good cause for the 30-day extension, the trial court was well within its discretion in changing its previous ruling. We determine that the trial court properly held that good cause did not exist for the 30-day extension of service of process and that Le’s action must be deemed commenced on the date that service was obtained upon Joslin. Because Le’s action was not commenced within the 2-year statute of limitations period, her claims are now barred.
II. Did the trial court err in finding that the substitution statute, K. S.A. 60-225, was inapplicable?
Next, Le argues that the trial court erred in finding that the substitution statute, K.S.A. 60-225, was inapplicable. The trial court determined that even if the 30-day extension was proper under K.S.A. 60-203, Joslin was not properly made a party to the action within the statute of limitations period. Citing Back-Wenzel v. Williams, 279 Kan. 346, Syl. ¶ 1, 109 P.3d 1194 (2005), and Moore v. Luther, 29 Kan. App. 2d 1004, Syl. ¶ 4, 35 P.3d 277 (2001), the trial court found that the substitution statute was inapplicable because Gibson was never made a party to the lawsuit and that it was necessary for Le to amend her petition under K.S.A. 60-215 in order to make Joslin a party.
K.S.A. 60-225(a)(1), which provides for the substitution of parties when a party dies, states:
“If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.” (Emphasis added.)
By its plain language, K.S.A. 60-225(a)(1) is applicable when “a party” dies. Our Supreme Court has recognized that “[s]ervice of process is a method of formally commencing an action by giving the defendant notice of the action. The person named as defendant normally does not become a party to the action until served with the summons.” (Emphasis added.) In re Marriage of Welliver, 254 Kan. 801, 803, 869 P.2d 653 (1994). Service of process of the summons is the means by which the defendant is afforded the opportunity to appear before and be heard by the court. It is this notice that gives the court the jurisdiction to proceed. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 50, 687 P.2d 622 (1984). Here, because Le never accomplished service of process of the summons on Gibson before she died, Gibson never became a party to the lawsuit.
Moreover, the lawsuit was never “commenced” against Gibson because Le failed to serve her with the summons before she died. See K.S.A. 60-203(a); Medina v. American Family Mut. Ins. Co., 29 Kan. App. 2d 805, 811, 32 P.3d 205 (2001), rev. denied 273 Kan. 1036 (2002) (“A civil action is not commenced until the defendant is served or enters an appearance.”).
This court in Moore, 29 Kan. App. 2d 1004, Syl. ¶ 4, held: “Substitution of a special administrator or other personal representative under K.S.A. 60-225(a)(1) is inapplicable where the defendant is dead prior to the commencement of the action.” Our Supreme Court reached the same conclusion in Back-Wenzel, 279 Kan. 346, Syl. ¶ 1, when it held that “[a] motion to substitute under K.S.A. 60-225 cannot be used to substitute a party who died before the commencement of the action.” (Emphasis added.)
In Back-Wenzel, the plaintiff filed her petition against Louis Williams 3 days before the statute of limitations expired. Approximately 3 months later, the plaintiff was notified that Williams had died more than a year before the petition was filed. After a special administrator was appointed for Williams’ estate, the plaintiff moved to substitute the special administrator for Williams. The trial court denied the plaintiff s motion for substitution and dismissed for lack of subject matter jurisdiction. On appeal, this court construed the plaintiffs motion for substitution under K.S.A. 60-225 as a motion to amend the pleadings under K.S.A. 60-215. This court reversed the trial court’s decision and remanded the case to determine whether leave should be granted for the plaintiff to amend her petition and whether the amendment would relate back to the filing date of the original petition.
Our Supreme Court granted review and reversed this court’s decision. 279 Kan. at 346, 350-53. Our Supreme Court refused to construe the plaintiffs motion to substitute a party under K.S.A. 60-225 as a motion to amend the pleadings under K.S.A. 60-215. In making such a determination, our Supreme Court looked to the plaintiff s motion, the defendant’s motion to dismiss and attached memorandum, and the trial court’s understanding and treatment of the parties’ pleadings, which demonstrated that the plaintiff had filed a motion to substitute under K.S.A. 60-225. Because a motion to substitute under K.S.A. 60-225 cannot be used to substitute a party who died before the commencement of the action, our Supreme Court affirmed the trial court’s decision. 279 Kan. at 350-53.
Le argues that reliance on Moore and Back-Wenzel is misplaced because those cases involved the death of the defendant before the filing of the lawsuit. Nevertheless, both Moore and Back-Wenzel held that K.S.A. 60-225(a)(1) does not apply when a defendant died before the commencement of the action. Thus, the commencement of the action is the key event, not the filing of the petition. Le cites no cases which have held that the filing of the petition is when the action is commenced and when a defendant becomes a party for purposes of K.S.A. 60-225.
Because Le never effected service of process of the summons on Gibson before she died, the action was never commenced against her, and K.S.A. 60-225(a)(1) is inapplicable. At oral arguments, Le conceded that the proper procedure would have been to amend her pleadings under K.S.A. 60-215. Under Back-Wenzel, we are unable to construe Le’s motion to substitute under K.S.A. 60-225 as a motion to amend the pleadings under K.S.A. 60-215. As a result, we affirm the trial court’s grant of summary judgment on this issue.
III. Did the trial court err in finding that the service of process on Joslin was invalid?
Finally, Le contends that the trial court erred in determining that the summons served upon Joslin was invalid. The trial court determined that even if the 30-day extension was proper and even if Joslin could be made a party by way of substitution, the service upon him was invalid because he was served before he had been named as a defendant in the action and because the summons with which he was served was not issued to him but Gibson, who was deceased.
Citing K.S.A. 60-204, Le suggests that there was substantial compliance with the service of process statutes in this case because Joslin was served with the alias summons and because he was made aware of the pending action in which his status as special administrator on behalf of Gibson was subject to being affected. K.S.A. 60-204 provides that substantial compliance with the service statutes “shall effect valid service of process . . . notwithstanding some irregularity or omission” so long as “the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.”
Here, the record demonstrates that Joslin did have knowledge of his status as a named defendant in the lawsuit, as evidenced by his filed answer. Nevertheless, actual knowledge of the pendency of an action is not a substitute for service. Cook v. Cook, 32 Kan. App. 2d 214, 220, 83 P.3d 1243 (2003), rev. denied 277 Kan. 923 (2004). “Notice or knowledge must come from process of service, or there must be a valid waiver.” Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999). Otherwise, it would be meaningless for a party to ever assert insufficiency of service of process as a defense. In his answer, Joslin specifically asserted the defense of invalid service of process.
The error that occurred in this case with the service of process was not some small omission or irregularity that could be saved through substantial compliance with the service statutes. Instead, there was a complete failure to serve Joslin with a summons in which he was named as a defendant in the lawsuit. Joslin was served with an alias summons issued to Dorothy Gibson. K.S.A. 60-301 provides that the clerk shall issue a summons “for service upon each defendant.” Even after Joslin was substituted as a defendant in the lawsuit, Le never served him with a summons naming him as a defendant. See K.S.A. 59-2239(2) (providing that if someone has a claim against a decedent, “the estate of the decedent may be opened or reopened, a special administrator appointed, and suit filed against the administrator within the period of the statute of limitations for such action.” [Emphasis added.]).
We agree with the trial court that Kansas law does not allow a person to be served before he or she is named as a defendant and that in order to be valid, a summons must be issued to the person who is to be made a party. Accordingly, the trial court properly granted summary judgment to Joslin on this issue.
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Standridge, J.:
Barton J. Cohen, as trustee of the Barton J. Cohen revocable trust (the Cohen Trust), and A. Baron Cass, III, as trustee of the A. Baron Cass Family Trust under trust agreement dated March 22, 1989, as amended (the Cass Trust), appeal the dismissal of their claims of tortious interference with a contract and tortious interference with a prospective business advantage and relationship.
Facts
The Cohen Trust and the Cass Trust filed a civil action in the Johnson County District Court against Marion Battaglia asserting the following claims: (1) tortious interference with existing contractual relations; (2) tortious interference with a prospective business advantage and relationship; and (3) specific performance of a contractual obligation. The claims against Battaglia were premised on the following factual allegations, which will be presented as described in the amended petition.
Prior to August 30, 2005, Battaglia owned a 20% interest in Baron Development Company, LLC (BDC), a Kansas limited liability company, and 2,222 shares of common stock in The Baron Automotive Group, Inc. (BAG). The remaining balance of the membership interest in BDC and the rest of the shares of common stock in BAG were owned by the Cohen Trust and Cass.
On August 30, 2005, the Cohen Trust and Cass purchased all of Battaglia’s common stock in BAG. Battaglia remained an employee of the company.
At the same time as the BAG transaction, BDC redeemed Battaglia’s interest in BDC, paying Battaglia $419,809 in cash and issuing him a promissory note worth $1,259,434. By way of a “ ‘Pledge Agreement,’ ” the note was secured by a 20% first priority security interest in BDC.
The promissory note provided that it would become due and payable in full if BDC or BAG were sold to an unrelated party. Pursuant to the pledge agreement, BDC further promised not to sell any portion of Battaglia’s 20% security interest without Battaglia’s consent. Once all of the obligations under the note were performed and the “ ‘[germination date’ ” of the agreement was reached, however, Battaglia’s consent to the sale of his collateral was no longer required.
After the transactions with Battaglia were completed, Cass transferred all of his interests in BDC and BAG to the Cass Trust. In October 2006, Cass and Cohen (Trustees) and BAG agreed with Group 1 Automotive, Inc. (Group 1) that (1) Trustees would sell 100% of the membership interests in BDC (which would include Battaglia’s 20% security interest) to Group 1, and (2) BAG would sell all of its assets to Group 1. The parties set January 16, 2007, as the closing date for the sales. The sale of the interests in BDC to Group 1 would take place simultaneously with the payment in full of the promissory note to Battaglia; thus, Trustees took the position that Battaglia’s consent to the sale was not required.
After being informed of the sale agreements, Battaglia demanded to know the purchase price and other details. Cohen refused on the basis that Battaglia was not a “ ‘seller’ ” under the sale agreements, the transactions with Group 1 were confidential, and disclosure of the information might jeopardize the agreements. Battaglia disputed these assertions, arguing that, as the president of BAG and because of his security interest in BDC, he was entitled to copies of the contracts regarding the sale agreements. In response; counsel for Trustees and BAG countered that Battaglia was not entitled to see the documents relating to the sales agreements because Battaglia was neither a shareholder of BAG, a member of BDC, nor a director of either entity, and thus had no interest in either BAG or BDC except as the holder of a promissory note.
Battaglia knew that the closing with Group 1 was scheduled for January 16, 2007. On January 12, 2007, Louis C. Accurso, Battaglia’s attorney, filed a civil action on behalf of Battaglia in the circuit court of Jackson County, Missouri, naming Cohen, the Cohen Trust, Cass, BAG, and BDC as defendants (the Missouri action). That same day, Accurso faxed to Group l’s general counsel a copy of the Missouri action with the following notation: “ ‘Please find enclosed a file-stamped copy of a lawsuit filed today on behalf of Marion Battaglia. If you have any questions or comments, please do not hesitate to contact me.’ ”
At the time the Missouri action was filed, Group 1 had no ownership interest in BDC or BAG. Also, Group l’s general counsel was neither counsel for, nor a registered agent of, BDC or BAG. According to Trustees, Accurso’s conduct in “[s]ending the letter and a copy of the Petition for the Missouri Action served no purpose except to interfere with the sale transactions.”
As a result of Accurso’s actions, Group 1 contacted counsel for Trustees and expressed reservation about closing the sales. Specifically, Group 1 refused to close without altering the agreements to include a supplemental indemnification agreement from BDC, the Cohen Trust, and the Cass Trust. Also, Group 1 required that $2,500,000 be placed in escrow for the benefit of Group 1. Trustees incurred substantial attorney fees in complying with Group l’s additional demands.
On January 16, 2007, the sale agreements closed, with Trustees receiving $2,500,000 less than the agreed-upon purchase price due to the escrow. Simultaneous with the closing, Trustees paid the promissory note in full, which Battaglia accepted. Shortly after-wards, Trustees filed this lawsuit against Battaglia setting forth claims for tortious interference with a contract, tortious interference with a business expectancy, and specific performance. Battaglia filed a motion to dismiss the tortious interference claims, which the district court ultimately granted. In a separate order, the court thereafter declined to exercise subject matter jurisdiction over the claim for specific performance. Trustees appeal.
Subject Matter Jurisdiction
At oral argument, Battaglia argued for the first time on appeal that the district court’s dismissal of this cause of action without prejudice did not constitute a final judgment from which Trustees can appeal. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). If the record shows there is no jurisdiction for an appeal, the appeal must be dismissed. State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007).
Kansas appellate courts may only exercise jurisdiction over appeals from district court as allowed by statute and, therefore, do not have discretionaiy power to entertain appeals from all district court orders. Flores Rentals v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 (2007). K.S.A. 2008 Supp. 60-2102a sets forth those orders and decisions of a district court over which this court has jurisdiction. K.S.A. 2008 Supp. 60-2102a(a)(4) allows jurisdiction over “[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law.” Trustees contend that the district court’s dismissal without prejudice constituted a final judgment, while Battaglia asserts that it did not.
A final decision generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. The term “ ‘final decision’ ” is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as the final act in the case. Flores, 283 Kan. at 481-82.
The question presented here is whether an involuntary dismissal without prejudice, made upon the defendant’s motion, constitutes a final judgment. Previous Kansas case law has addressed similar, but not identical, questions. In Brower v. Bartal, 268 Kan. 43, 45-46, 990 P.2d 1235 (1999), and Bain v. Artzer, 271 Kan. 578, 579-81, 25 P.3d 136 (2001), the Kansas Supreme Court determined that an order granting a voluntary dismissal without prejudice, with conditions for refiling, on plaintiff s motion did not constitute a final judgment.
However, in a 2004 unpublished opinion, a panel of this court determined there was sufficient finality for appellate jurisdiction where an action was involuntarily dismissed without prejudice, but the plaintiff claimed potential prejudice from the dismissal because a second lawsuit might not relate back and, therefore, could be subject to dismissal based on the statute of limitations. Nelson v. Kaw Valley Center, Inc., No. 90,510, unpublished opinion filed April 9, 2004. It seems reasonable to extrapolate and apply a rule from Nelson that where a case has been involuntarily dismissed without prejudice, there will be appellate jurisdiction of such dismissal only where the plaintiff contends that he or she will suffer some real prejudice from the dismissal. A dismissal without prejudice contemplates by its very nature the possibility of refiling an action that is exactly or substantially the same as the action dismissed. Judicial economy is not served by allowing an appeal from such a dismissal when a plaintiff does not show that he or she will be adversely affected by the dismissal.
Such a rule is similar to rules applied in other jurisdictions. See LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680, 687 (7th Cir. 1998) (An involuntary dismissal without prejudice was not a “ ‘final decision’ ” for purposes of determining appellate jurisdiction unless plaintiff could not file another complaint.); B.C. Inv. Co. v. Throm, 650 P.2d 1333, 1335 (Colo. App. 1982) (Dismissal of a complaint without prejudice is generally not a final and appealable order, unless circumstances indicate that the action cannot be saved, such as due to operation of a statute of limitations.); Chromalloy American v. Elyria Found., 955 S.W.2d 1, 4 (Mo. 1997) (“[A] dismissal without prejudice that a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken.”).
Here, at oral argument in this case, Trustees maintained prejudice from the district court’s dismissal since a second lawsuit may not relate back and could be subject to dismissal based upon the statute of limitations. Although we decline to address the potential for prejudice, Trustees’ assertions at oral argument that the potential was real is an adequate showing of the potential prejudice for purposes of the jurisdictional issue. Accordingly, we hold under the unique facts of this case that sufficient finality has been shown to invoke our appellate jurisdiction because Trustees face the real potential for prejudice from an involuntary dismissal without prejudice.
Standard Of Review
Upon appellate review of a district court’s order granting a motion to dismiss for failure to state a claim, an appellate court is required to assume that the facts alleged by the plaintiff are true, along with any inferences reasonable to be drawn therefrom. The court must also decide whether those facts and inferences state a claim on the theories presented by the plaintiff and also on any other possible theory. McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, Syl. ¶ 1, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002). Although the court must accept the plaintiff s description of what occurred, the court is not required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself. 272 Kan. 627, Syl. ¶ 10.
Analysis
Battaglia submitted three arguments to the district court in support of his motion to dismiss the tortious interference claims: (A) Trustees failed to allege that any contract actually was breached; (B) Trustees failed to allege Battaglia had requisite knowledge of the terms within the contract; and (C) Trustees’ claims were premature and not yet actionable. Although the district court denied the motion to dismiss based on the first and second arguments, the court granted the motion to dismiss based on the third argument. On appeal, Trustees seek to reverse tire district court’s decision with regard to the third argument and affirm the district court’s decision with regard to the first and second arguments.
A. Did Trustees Adequately Allege That Group 1 Breached The Contract Or Interfered With A Prospective Business Advantage Or Relationship?
With respect to Trustees’ claim of tortious interference with a contract, Battaglia’s motion to dismiss argued that' Trustees failed to allege breach. In addition, with respect to Trustees’ claim of tortious interference with prospective business advantage or relationship, Battaglia argued that Trustees’ amended petition failed to allege that Trustees’ relationship with Group 1 did not continue or that the expectancy was not realized. The district court considered and rejected Battaglia’s breach of contract argument but failed to separately.address Battaglia’s argument concerning inter ference with a prospective business advantage or relationship. These arguments will be addressed separately below.
1. Allegations Of Breach Of Contract
In their amended petition, Trustees alleged that, as a result of Accurso’s actions on behalf of Battaglia, Group 1 “refused to close without altering the Sale Agreements.” Trustees further alleged that they modified the sales agreements to comply with Group l’s demands, and the sales ultimately closed on schedule.
On appeal, Battaglia cites Pizza Management, Inc. v. Pizza Hut, Inc., 737 F. Supp. 1154, 1164 (D. Kan. 1990), for the proposition that an action for interference with a contract does not extend to any adverse impact or increased burden, short of breach. Battaglia claims compliance with Group l’s demands merely caused an adverse impact or placed an increased burden on Trustees.
Battaglia’s citation to Pizza Management is unpersuasive. In Hawkinson v. Bennett, 265 Kan. 564, 601, 962 P.2d 445 (1998), the defendants relied on Pizza Management and made virtually the same argument as Battaglia makes here, which our Supreme Court rejected. The Supreme Court noted that, under Kansas law, anticipatory repudiation is a breach of contract which authorizes the nonbreaching party to bring an immediate action. Hawkinson, 265 Kan. at 601.
Applying Hawkinson, Trustees have alleged sufficient facts that, if true, would constitute anticipatory repudiation by Group 1. Therefore, the district court did not err in ruling that Trustees had adequately alleged a breach of contract.
2. Allegations Of Interference With Business Expectancy Or Relationship
Battaglia also argues that Trustees failed to allege that their business relationship was not continued. For support, Battaglia cites to a case from the Superior Court of Connecticut, Elkman v. McCarthy, 2001 WL 1868928 (2001) (unpublished opinion). In Elk-man, the property manager of a condominium sent a letter to a prospective purchaser of a condominium unit warning that liability could be imposed on the prospective purchaser for nonconforming doors installed by the seller. As a result of this letter, which “almost killed the deal,” the seller was required to place $3,000 in escrow to cover the cost of replacing the doors in case the property manager took action against the prospective purchasers. 2001 WL 1868928, at *1. The seller sued the property manager for tortious interference with business relations, but the court entered judgment for the property manager. After noting that the closing did in fact take place, the court ruled with no further analysis that the plaintiff had failed to establish any of the elements of tortious interference with a contract or business relations. 2001 WL 1868928, at *2.
While Elkman clearly favors Battaglia, the court’s analysis in that case is weak. The mere fact the sale closed may demonstrate the relationship between Group 1 and Trustees did not terminate, but that fact alone does not show that Trustees fully realized their expectancy of future economic benefit. Trustees alleged that they were required to pay substantial attorney fees and that the sale price was reduced as a result of Accurso’s conduct. Therefore, we find Trustees adequately pled that Battaglia interfered with their business expectancy.
B. Allegations Regarding Battaglia’s Knowledge Of The Terms Within The Prospective Sales Agreement
The district court refused to grant Battaglia’s motion to dismiss on the ground that Trustees were required to allege that Battaglia had knowledge of the specific terms of the contract or the business relationship. On appeal, Battaglia asserts that knowledge of the particular terms of the contract and business relationship should be found essential to Trustees’ claims. Battaglia’s argument turns on his assertion that Trustees alleged nothing more than a modification of the terms of the sales agreements. Battaglia reasons that he should not be held hable for interfering with something of which he had no knowledge.
With his assertion of modification, Battaglia has merely recast his argument above that Trustees failed to allege a breach of the contract or termination of the business relationship. As discussed earlier, this argument was not persuasive.
Moreover, we find no Kansas case law to support Battaglia’s claim. In articulating the elements of tortious interference with a contract and tortious interference with a business relationship or advantage, our Supreme Court has never held that knowledge of the precise terms of a contract or business relationship is necessary to maintain either of these actions. See Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 423-24, 77 P.3d 130 (2003).
Turning to other jurisdictions, the court in Don King Productions, Inc. v. Douglas, 742 F. Supp. 741, 775 (S.D.N.Y. 1990), cited New York law and held: “In a tortious interference action, a plaintiff is not required to prove that the defendant had perfect or precise knowledge of the terms and conditions of the contracts in issue. [Citation omitted.] It is enough that the defendant who interfered have ‘[k]nowledge of the existence of the contract’ . . . .” A similar proposition of law was articulated in Kelly v. Galveston County, 520 S.W.2d 507, 513 (Tex. App. 1975), where the court held: “It is not necessary that a defendant in a case of interference with contract rights have actual knowledge of the contract and its terms. It is enough that the defendant had facts from which a reasonable person would conclude the existence of a contract. [Citation omitted.]”
The only case to be found stating otherwise is Ebasco Services Inc. v. Pennsylvania Power & L. Co., 402 F. Supp. 421 (D.C. Pa. 1975). According to Ebasco Services Inc., the Pennsylvania Supreme Court’s decision in Klauder v. Cregar, 327 Pa. 1, 192 A. 667 (1937), “is explicit in requiring that the offending party have knowledge not only of the existence of the contractual relationship, but also of the terms of that contract which conferred upon the claimant the rights allegedly interfered with.” 402 F. Supp. at 453. However, this characterization of the court’s holding in Klauder is somewhat exaggerated. In Klauder, the plaintiff claimed the defendant maliciously interfered with a contract. The Pennsylvania Supreme Court held that the plaintiff had properly stated a cause of action against the defendant. 327 Pa. at 10. In reaching this conclusion, the court distinguished a similar case from Massachusetts in which a contrary result was reached. According to the court, the defendant in the Massachusetts case had no knowledge of the contract’s specific terms, while in the present case the defendant possessed particular knowledge and could be held liable. 327 Pa. at 7.
The distinction made in Klauder certainly suggests that particular knowledge is a prerequisite to liability in Pennsylvania but does not go so far as to explicitly require it. Moreover, we could find no case from a Pennsylvania state court that recognized the characterization of Klauder as set forth in Ebasco Services Inc. Accordingly, we find the district court did not err in finding that Trustees were not required to allege that Battaglia had knowledge of the specific terms of the contract or the business relationship in order to adequately state a claim upon which relief could be granted.
C. Did The District Court Err In Dismissing The Tortious Interference Claims Based On A Finding That The Claims Were Premature?
Although the district court denied Battaglia’s motion to dismiss based on the arguments set forth above, the court granted the motion to dismiss on grounds that the tortious interference claims were premature. Tortious interference with a contract seeks to preserve existing contracts, while tortious interference with a prospective business advantage or relationship seeks to protect future or potential contractual relations. Despite these differences, both torts are similar in that they are predicated on malicious conduct by the defendant. Burcham, 276 Kan. at 423-25.
To that end, the district court found — as a matter of law — that it was the filing of the Missouri lawsuit by Battaglia that made up the malicious conduct upon which Trustees based their claims. Relying on Eddy’s Toyota of Wichita, Inc. v. Kmart Corp., 945 F. Supp. 220, 225 (D. Kan. 1996), the district court went on to find that in order to prove tortious interference based on the filing of the Missouri lawsuit, Trustees would be required to establish the elements of a malicious prosecution claim, which includes a requirement that the lawsuit terminated in the plaintiffs’ favor. Since the Missouri action had not yet terminated, the court concluded that Trustees’ tortious interference claims were premature and thus could not survive dismissal.
On appeal, as they did in the district court, Trustees argue the malicious conduct upon which they base their claims is not the act of filing the Missouri lawsuit, but the faxing of a copy of the Missouri lawsuit to Group 1. In rejecting this argument, the district court held that filing a lawsuit is deemed to provide notice to the public of its existence; thus, sending a copy of the lawsuit to a member of the public cannot be a separate and distinct instance of malicious conduct upon which to base a claim of tortious interference. The district court further held that the Restatement of Torts provides that a tortious interference claim cannot be predicated on a threat to file, or the actual filing, of a good faith lawsuit to protect a legal right.
Based on the district court’s conclusions of law, the following issues are now presented for determination on appeal: (1) whether Trustees’ amended petition specifically alleged Trustees’ claims were predicated on the separate and distinct act of faxing a copy of the Missouri action to Group 1; (2) whether Trustees’ amended petition properly alleged that, but for Group l’s receipt of the fax from Battaglia, Group 1 would have closed the deal without requiring the agreement be modified; and (3) whether the predicate act of faxing a copy of the Missouri lawsuit otherwise states a cause of action for tortious interference.
1. Did The Petition Sufficiently Allege Faxing As A Separate and Distinct Predicate Act?
“A rule of liberal construction applies when judging whether a claim has been stated.” Montoy v. State, 275 Kan. 145, 148, 62 P.3d 228 (2003). Under this rule, a plaintiff is entitled to have the petition interpreted liberally in his or her favor with respect to any indefiniteness or uncertainty in its allegations and to have all inferences reasonably to be drawn therefrom resolved in his or her favor. See City of Andover v. Southwestern Bell Telephone, 37 Kan. App. 2d 358, 362, 153 P.3d 561 (2007).
According to Trustees, their amended petition clearly specified that the sole basis of their claims was Accurso’s conduct in faxing a copy of the Missouri action to Group 1. This is debatable. In their amended petition, Trustees alleged that Battaglia (through Ac curso) filed the Missouri action and faxed a copy of that action to Group 1. In the very next paragraph, Trustees claimed: “Sending the letter and a copy of the Petition for the Missouri Action served no purpose except to interfere with the sale transactions.” (Emphasis added.) This italicized text certainly suggests that Trustees were relying on faxing as the tortious conduct. Notably, however, Trustees alleged later in the amended petition that “as a result of Battaglia’s actions,” “through the actions of Accurso,” and “[a]s a result of Battaglia’s wrongful conduct,” Group 1 refused to close the sales agreements without altering them. If Trustees intended to forego the filing of the Missouri action as a basis of liability for their claims, they certainly could have done so more clearly. But, given we must liberally construe the petition to determine whether a claim has been stated, we find the petition sufficiently alleges faxing the lawsuit as a separate and distinct predicate act.
2. Did Trustees’ Amended Petition Properly Allege That, But For Receiving The Fax, Group 1 Would Have Closed The Deal Without Requiring The Agreement To Be Modified?
The district court held that “filing a lawsuit is deemed to give notice to the world of its existence. Under those circumstances, it is impossible for this Court to see how mailing a copy of the lawsuit would add anything.” For insight as to what the district court meant by these words, we turn to statements made by the district judge at the hearing on Battaglia’s motion to dismiss:
“[T]he filing of the petition in Missouri imparts notice by operation of law. And so, I don’t see how the sending of that letter does anything that die filing of the petition did not do. I understand how, as a practical matter, it may have caused the buyers to take some action, but as a legal matter, I can’t see that the sending of the letter had any effect that the filing of the lawsuit did not have.”
From this excerpt, it appears the district court concluded that, because filing the Missouri action made the lawsuit public information, Trustees would be unable to prove that, “but for” Accurso’s conduct in faxing the lawsuit, Group 1 would have closed the deal as originally agreed.
Tortious interference with a prospective business advantage or relationship explicitly requires “but for” causation. To succeed on that claim, Trustees must prove that, except for the conduct of Battaglia, Trustees were reasonably certain to have continued the relationship or realized the expectancy with Group 1. See Burcham, 276 Kan. at 423. And, although tortious interference with a contract does not explicitly require “but for” causation, our Supreme Court has construed “but for” causation as an element of the tort. See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 168-69, 872 P.2d 252 (1994) (adopting elements of tort as set forth in 45 Am. Jur. 2d, Interference § 39, p. 314). Accordingly, both causes of action for tortious interference require a plaintiff to establish “but for” causation.
The question thus presented is whether Trustees sufficiently alleged “but for” causation in their amended petition. To that end, Trustees alleged several times that Group 1 refused to close the sales transactions as a result of Accurso’s conduct. Given the conclusoiy nature of this allegation, however, and the failure to set forth any facts to support such an allegation, we find these allegations insufficient.
In stating the elements of their claim for tortious interference with a prospective business advantage or relationship, Trustees alleged that, but for Battaglia’s conduct, they were reasonably certain to close the sales transactions as structured. This again, however, is a conclusory allegation, and Trustees never alleged any specific facts to support it. For example, Trustees never alleged that, but for Accurso’s conduct in faxing a copy of the Missouri action to Group 1, Group 1 would not have obtained knowledge of the Missouri action prior to closing.
Apparently recognizing they failed to sufficiently allege “but for” causation in their amended petition, Trustees argue on appeal they were entitled to a reasonable inference that, but for Accurso’s conduct in faxing a copy of the Missouri action to Group 1, Group 1 would have been ignorant of any lawsuits and would have had no incentive to breach its sales agreements with Trustees. Battaglia opposes any such inference.
First, Battaglia maintains the inference is “meaningless” because, if it were true, Trustees could “sue the paper boy who delivers a newspaper that reported on the filing of the lawsuit.” We disagree. A lawsuit against the paper boy would only prevail if all the other elements of tortious interference with a contract and tortious interference with a prospective business advantage or relationship were proven, including knowledge and intent. See Burcham, 276 Kan. at 423-24. If such a lawsuit against a paper boy seems ridiculous, it is because a paper boy would not have the requisite knowledge of the contractual relations or business expectancy and the requisite intent to interfere, not because the information conveyed was public.
Battaglia’s second argument against an inference of “but for” causation is that it conflicts with other allegations in Trustees’ amended petition. Specifically, Battaglia points to the allegation that the Chicago Title Insurance Company would be handling the closing of the sale. According to Battaglia, the title company’s report “would have shown all matters of public record, thereby dispelling any notion that Group 1 would not have been made aware of the lawsuit if [Accurso] had not mailed a copy to them.” Again, we disagree. Trustees never alleged that a report would be made or what such a report would contain. Battaglia’s argument consists of nothing but speculation and inferences drawn against Trustees’ favor. As indicated earlier, all reasonable inferences must be drawn in Trustees’ favor, not against it. See City of Andover, 37 Kan. App. 2d at 362.
Moreover, an inference that Group 1 would have closed the sales agreements as originally structured but for Accurso’s actions follows reasonably from Trustees’ allegation that Group 1 failed to close the sales agreements as a result of Accurso’s conduct. Accurso’s alleged conduct included transmitting the fax. Taking Trustees’ allegations and all reasonable inferences as true, we find the amended petition sufficiently alleged that, but for receiving the fax, Group 1 would have closed the deal without requiring the agreement to be modified. See McCormick, 272 Kan. 627, Syl. ¶ 10.
3. Does The Predicate Act Of Faxing A Copy Of The Missouri Lawsuit Otherwise State A Cause Of Action For Tortious Interference?
The district court held Battaglia could not be held liable for Accurso’s conduct in faxing a copy of the Missouri action to Group 1 because Accurso’s conduct was protected pursuant to the Restatement (Second) of Torts § 773 (1979). This section provides:
“One who, by asserting in good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other’s relation if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.” Restatement (Second) of Torts § 773.
In other words, if a person believes that his or her interest will be destroyed by the performance of the contract, § 773 permits that person to intentionally interfere with the contract by asserting in good faith a legally protected interest or by threatening in good faith to protect the interest by appropriate means. See Restatement (Second) of Torts § 773. Citing to this section as support for dismissal, the district court reasoned: “If threatening to file a good faith lawsuit is not grounds for a tortious interference case, and filing a good faith lawsuit is not grounds for a tortious interference claim, it is impossible for this Court to see how saying, ‘Look, I have filed this lawsuit’ could be grounds either.”
Notably, we are not persuaded by the court’s reasoning. This is because § 773 protects only those actions which were taken in good faith and where the person believed the action was necessary to preserve a legally protected interest. See Restatement (Second) of Torts § 773. In their amended petition, Trustees specifically alleged that Accurso’s conduct in faxing a copy of the Missouri action to Group 1 “served no purpose except to interfere with the sale transactions.” (Emphasis added.) Assuming that this allegation and all reasonable inferences are true, Accurso’s conduct on behalf of Battaglia was taken neither in good faith nor for tire purpose of preserving a legally protected interest. Accordingly, we conclude the district court’s reliance on § 773 in dismissing Trustees’ tortious interference claims was misplaced.
Notwithstanding this conclusion, the district court’s decision to dismiss should be affirmed. See Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 550, 376 P.2d 809 (1962) (district court’s dismissal of action may be affirmed if correct result was reached, even if district court assigned erroneous grounds for its decision). We find the district court should be affirmed because tortious interference claims cannot be predicated on the defendant’s communication of tmthful information. See Restatement (Second) of Torts § 772(a) (1979). Section 772 provides:
“One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation, by giving the third person
“(a) truthful information, or
“(b) honest advice within the scope of a request for the advice.”
Comment b under § 772 speaks unequivocally:
“b. Tmthful information. There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another. It is also true whether or not the information is requested. Compare § 581A, on the effect of truth in an action for defamation.”
Our research reveals that no Kansas state appellate court has cited to § 772(a). At least two panels of our court, however, appear to have considered and approved the general concept underlying this section of the Restatement without actually citing to it. In Taylor v. International Union of Electronic Workers, et al., 25 Kan. App. 2d 671, 678, 968 P.2d 685 (1998), rev. denied 267 Kan. 889 (1999), the plaintiff asserted claims of defamation and tortious interference with a prospective business relationship based on the defendant’s communication of allegedly false and defamatory statements. The court held that the success of the plaintiffs case turned on whether the statements were true or false. According to the court, if the statements were true, “plaintiff [had] little to complain about.” 25 Kan. App. 2d at 678. This language was quoted with approval in Meyer Land & Cattle Co. v. Lincoln County Conservation Dist., 29 Kan. App. 2d 746, 751, 31 P.3d 970 (2001), rev. denied 273 Kan. 1036 (2002), although that panel’s analysis implied that liability for tortious interference could still be imposed if the defendant committed misconduct in conveying truthful information. As noted previously, § 772(a) does not permit any liability to be imposed if the breach resulted from the communication of truthful information. See Restatement (Second) of Torts § 772, comment b.
Notably, the United States District Court for the District of Kansas twice has held that § 772 applies in Kansas. See Old Colony Ventures I, Inc. v. SMWNPF Holdings, Inc., 1996 WL 707025, at *11-*12 (D. Kan. 1996) (unpublished opinion); Green Const. Co. v. Black & Veach Engineers & Architects, 1990 WL 58780, at *4-*5 (D. Kan. 1990) (unpublished opinion).
To determine whether the principle stated in § 772(a) should be recognized with this case, some context is necessary. As mentioned before, claims of tortious interference are predicated on malicious conduct by the defendant. See Burcham, 276 Kan. at 424-25. Thus, not all interference in present or future contractual relations is tortious. A person may be privileged or justified to interfere with contractual relations in certain situations. See Burcham, 276 Kan. at 425. In Turner v. Halliburton Co., 240 Kan. 1, 14, 722 P.2d 1106 (1986), our Supreme Court noted that the Restatement (Second) of Torts § 767 (1979) does not speak in terms of privilege or justification; rather, the Restatement refers to tortious conduct as “improper” and sets forth the following seven factors that should be considered in determining whether a defendant’s conduct meets that description: (1) the nature of the defendant’s conduct; (2) the defendant’s motive; (3) the interests of the other with which the defendant’s conduct interferes; (4) the interests sought to be advanced by the defendant; (5) the social interests in protecting the freedom of action of the defendant and the contractual interests of the other; (6) the proximity or remoteness of the defendant’s conduct to the interference; and (7) the relations between the parties.
Section 772 is one of seven specific applications of the general seven-factor balancing test found in § 767. Restatement (Second) of Torts § 767, comment b. According to the drafters of the Restatement, when one of these sections applies, the seven-factor balancing process in § 767 need not be performed. See Restatement (Second) of Torts § 767, comment j.
Simply put, we find the rule stated in § 772(a) should be adopted as the law in Kansas. In Turner our Supreme Court quoted the seven-factor test found under § 767. Turner, 240 Kan. at 14. Since § 772 is a special application of § 767, our Supreme Court has, by implication, approved of § 772. Moreover, in Turner, our Supreme Court declared that “[occasions privileged under the law of defamation are also occasions in which interference with contractual relations may be considered justified or privileged.” 240 Kan. at 13. Under the law of defamation, no liability exists for true statements. Ruebke v. Globe Communications Corp., 241 Kan. 595, 598, 738 P.2d 1246 (1987). Our Supreme Court’s willingness to extend the principles of defamation law to claims for tortious interference strongly supports the conclusion that § 772(a) should be adopted as the law in Kansas.
Here, Trustees have attempted to impose liability on Battaglia for Accurso’s conduct in notifying Group 1 of the existence of the Missouri action. Applying § 772(a), we find Accurso’s conduct on behalf of Battaglia conveyed nothing but truthful information and, thus, is not actionable. For this reason, we affirm the district court’s decision to dismiss.
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding in error brought to reverse a judgment of the district court of Franklin county, given in favor of Thomas Hardie against the Dwelling House Insurance Company of Boston, Massachusetts, for $305.53. The petition of Hardie set forth that he was insured by the company against loss by fire on his dwelling house in the city of Ottawa in the sum of $300, for a period of five years from the 30th day of March, 1885, the consideration being a premium of $7; that on the 23d day of October, 1885, the house was destroyed by fire without any fault or negligence on his part, and that he had made the necessary proofs of loss, and complied with all the conditions imposed on him by the policy, but that the company had failed and refused to pay the loss. The defense of the company was that the sole consideration for the policy was a note given by Hardie to the company on the 30th day of March, 1885, due on or before the first day of October, 1885, with interest at seven per cent, per annum from date, if paid at maturity, otherwise to bear the full legal rate of interest, which note, it was alleged, contained a stipulation that the non-payment of the note should render the policy null and void; and it is claimed that as the note was not paid at maturity, nor until October 26th, 1885, the company was not liable for the payment of the sum insured nor any part thereof. It appears that the note was left with the First National Bank of Ottawa as the agent of the company for collection, and that after the maturity of the note, and on October 26th, 1885, the bank collected the amount due on the note from Hardie. We need not decide the question so much argued, whether the acceptance of payment by the company was a waiver of the condition of forfeiture, as under our interpretation of the contract it contained no valid condition stipulating for a forfeiture of the policy because of the non-payment of the note. The condition of the note relied on is as follows:
“ It is a part of this contract that in case this note be not paid at or before maturity, that said policy shall, at said time of maturity, cease and determine, and be null and void, and so remain until said note shall have been fully paid to said company as provided in said policy
The natural understanding and interpretation of this provision is, that the policy is to cease and determine upon default of payment, as the policy referred to provides. When the policy is examined, however, it is found that it does not stipulate for a forfeiture because of the non-payment of the note. It does not even contain a condition that the policy shall not take effect or the risk attach until the premium is paid. Instead of containing these, or any like provisions, it is executed on the theory that the note was accepted by the company in payment of the premium, and that the policy took effect upon the receipt and acceptance of the note and the delivery of the policy. In fact, the policy and the note do not correspond in their provisions, and the form of the note used seems to have been prepared to conform with a policy wholly different from the one on which this action is founded. The policy expressly bound the company in consideration of the note itself, and it did not contain a word which fitted the reference made in the note. It does not appear that the rules or by-laws of the company, nor yet the application for insurance, indicated that the liability of the company depended upon the future payment of the note. It was competent for the parties to pay and accept payment of premium in the form of a note, and this appears to have been done. This purpose was also evinced by the company in the collection of the note. The bank was its agent for collection, and the note had matured some time before the collection was made. Instead of proceeding on the theory now insisted on, and declaring the policy at an end when default was made, and collecting such portion of the premium as the company regarded to have been earned, it allowed the note to run and then collected the entire amount of principal and interest. The condition mentioned in the note was to have effect and be in force according to the terms of the policy, and as the policy contains no provisions for forfeiture, and is inconsistent with such a theory, the condition of the note must be held to be nugatory. It follows that the judgment of the district court must be affirmed.
All the Justices concurring. | [
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Leben, J.:
This dispute over farm ground arrives at our court on appeal in an unusual procedural state — the trial was abbreviated when the district court granted judgment on a key issue in favor of the defendants after only the plaintiffs had presented evidence. On appeal, both sides have cited an incorrect legal standard that suggests we must view the evidence in the light most favorable to the plaintiffs because the trial wasn’t finished. But K.S.A. 60-252(c) allows the district court to make factual findings against a party once that party has been fully heard on an issue, and the plaintiffs had fully presented their case before the district court ruled against them. Accordingly, we review the case on appeal to determine whether the district court’s factual findings were supported by substantial evidence and whether those findings supported the district court’s legal rulings. See Lyons v. Holder, 38 Kan. App. 2d 131, 135, 163 P.3d 343 (2007).
The plaintiffs, Larri and Teresa Lewis, agreed to buy 316.64 acres of farm ground from R & K Ranch; the Lewises agreed to pay $90,000 in installments of $9,000 due each year. But the district court concluded — contrary to the testimony of Larri Lewis — that the Lewises never made even a partial payment. Because the contract allowed R & K Ranch to declare the contract null and void if the Lewises failed to make any scheduled payment on time, R & K Ranch was well within its rights under the contract to declare that contract void for nonpayment, as the district court concluded. Under the proper standard as set forth in K.S.A. 60-252(c) and Lyons, we affirm the district court’s judgment because its findings were supported by the evidence and were sufficient to support its legal rulings.
Factual Background
In 2001, the Lewises signed a 5-year lease with R & K Ranch for about 1,100 acres. Under that lease, the Lewises paid $9,525 twice per year, on May 1 and October 1, for use of the land.
In 2004, R & K Ranch offered the Lewises the chance to buy part of the leased ground. The parties reached an oral agreement, and eventually they entered into a written contract for the Lewises to buy 316.64 acres. At the same time, a new lease was prepared since the acreage under lease was reduced because of the purchase arrangement.
The real-estate contract, signed in June 2004, called for the Lewises to make 10 annual installments of $9,000, “with the first annual payment due on the 10th day of June 2004 and each annual installment due on the 1st day of June of each year thereafter until paid in full.” The contract contained two other provisions of note: a forfeiture clause and a buy-back provision. Under the forfeiture clause, if the Lewises failed to “keep, observe and perform any of the covenants” made by them, including payment, R & K Ranch had the option to “declare the contract null and void.” Under the buy-back provision, R & K Ranch had “the option at any time until the completion of the contract to purchase back the above described real estate at the amount equal to the amount PURCHASER has paid on the contract to that date . . . .”
The new lease agreement, also signed in June 2004, was for a 12-year term. The lease called for the Lewises to make lease payments of $7,275 twice each year, except that the first payment would be $5,025 due October 1, 2004.
Rent was due under the 2001 ground lease in May 2004, before the contract for purchase of part of the leased ground was signed in June. The Lewises paid $9,525 on May 1, 2004, which was the amount of their preexisting rental obligation. That payment was $2,250 more than the rent agreed upon in the June 2004 lease for future annual lease payments for the remaining ground, but the new lease’s first payment due in October was $2,250 less than the annual lease payment due in later years ($7,275 — $2,250 = $5,025).
There was some time delay in getting an escrow account set up to receive the Lewises’ $9,000 payment on the land purchase due June 10, 2004. In addition, a check of title to the land showed that the First National Bank of Quinter, Kansas, had a mortgage interest. So the parties entered into an addendum to the purchase con tract providing that the Lewises’ payments be made joindy to R & K Ranch and First National Bank of Quinter. The Lewises signed the addendum on August 14, 2004.
But the Lewises never made the initial payment for $9,000, as required by the contract. In fact, the district court concluded that the Lewises never made any payment toward the land purchase.
In September 2004, Dennis Roemer, a principal with R & K Ranch, sought a new buyer. R & K Ranch then entered into a sales contract with K & K Farms for the same acreage that the Lewises had agreed to buy. Because the Lewises had made no payment toward the purchase, the district court concluded that R & K Ranch was entitled to proceed to void the sale to the Lewises and sell the land to another party. The district court noted that R & K Ranch was not required to make any payment to the Lewises because the Lewises had not made any payment toward the purchase. Thus, the contract’s buy-back provision allowed R & K Ranch to take the property back without making any payment to the Lewises.
Procedural Background
Before moving on to the legal issues on appeal, we must address a procedural issue. After the Lewises rested at trial, the defendants R & K Ranch and Roemer as its general manager moved for what they called a directed verdict. Before the 1997 amendments to the Kansas Rules of Civil Procedure, a motion for directed verdict was made under K.S.A. 60-250 when a party had finished its presentation in a jury trial. Now the motion is called one for judgment as a matter of law, and it’s still available under K.S.A. 60-250(a) in a jury trial. When made, the motion may be granted when the evidence — taken in the light most favorable to the nonmoving party— leaves no basis for a verdict in favor of that party. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007). Many lawyers still refer to such motions as ones for a directed verdict, even though K.S.A. 60-250 has referred to them as ones for judgment as a matter of law since 1997. See L. 1997, ch. 173, sec. 26.
But whatever that motion may be called, it applies under K.S.A. 60-250 only in jury trials. This case was tried to the district judge, not a jury, so K.S.A. 60-252(c) applies, not K.S.A. 60-250. Under K.S.A. 60-252(c), once a party has had a full opportunity to present its evidence, “the court may enter judgment as a matter of law against that party with respect to a claim . . . that cannot under the controlling law be maintained . . . without a favorable finding on that issue.” When considering a motion for judgment as a matter of law in a judge-tried case, “the district judge has the power to weigh and evaluate the evidence in the same manner as if he or she were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case.” Lyons, 38 Kan. App. 2d at 135. Accord 9C Wright & Miller, Federal Practice & Procedure: Civil 3d § 2573.1 (2008).
When the attorney for R & K Ranch and Roemer made his “directed verdict” motion, he cited the standard applicable to the old directed-verdict motion in a jury trial: that the judge must grant all inferences in favor of the nonmoving party. No one suggested any other standard, and the district court said it had reviewed the evidence in the light most favorable to the Lewises. Even under that more favorable standard for the Lewises, the district court found their evidence insufficient to support their claim.
On appeal, however, we must apply the law correcdy: “It is the substance of the motion that controls, not the form.” Jackson v. State, 1 Kan. App. 2d 744, 745-46, 573 P.2d 637 (1977) rev. denied 225 Kan. 844 (1978) (citing Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922 [1966]). Under K.S.A. 60-252(c), which applies here, the district court was free to make credibility determinations and to weigh the evidence. To the extent that it believed itself bound by a more stringent rule, that belief would favor the Lewises, not R & K Ranch or Roemer. On appellate review, we look to see whether the district court’s findings are supported by substantial evidence and whether those- findings are sufficient to support its legal ruling. Lyons, 38 Kan. App. 2d at 135.
With those standards in mind, we turn to the issues that the Lewises raised on appeal. First, they argue that the district court should not have granted judgment as a matter of law that R & K Ranch had properly declared the real-estate contract null and void. Second, they argue that the district court should not have granted judgment as a matter of law quieting title to the 316-acre tract to K & K Farms, the second party R & K Ranch sold it to. Third, they argue that the district court should not have awarded $4,500 that the Lewises had paid into court to R & K Ranch. We will address each issue separately, but none of them are difficult given the appropriate standard of review, which allowed the district court to judge credibility and to determine disputed facts.
I. The District Court Did Not Err in Concluding that Rlr K Ranch Lawfully Declared the Sales Contract to the Lewises Null and Void for Nonpayment.
The district court made several factual findings that are important to its decision that R & K Ranch properly declared the sales contract to the Lewises null and void for nonpayment. Most important among those is the finding that R & K Ranch “had not received any payment,” full or partial, toward the purchase from the Lewises. The Lewises contest this on appeal, noting the testimony of Larri Lewis that $2,250 of the payment made in May 2005 was intended to go toward the ground purchase. But the Lewises have argued the wrong standard of review on appeal, and the district court was not required to accept Larri Lewis’ testimony if other testimony led the court to a different conclusion. The district court specifically noted that the Lewises received full credit for that $2,250 by reducing the lease payment due October 1, 2004. The district court also noted that the real-estate contract had no provision suggesting the possibility of a partial payment, which is an especially significant omission since the parties drafted and signed that contract after the May 2005 lease payment from which Larri Lewis testified that $2,250 was intended to go toward the land purchase.
As we have already noted, we must accept the district court’s factual findings if substantial evidence supports them. The district court’s finding that no payments toward die land purchase were made by the Lewises meets that test.
So if no payments were made, was R & K Ranch then entitled to cancel the contract? Yes. The contract’s forfeiture clause made that explicit: If the Lewises failed to “keep, observe and perform any of the covenants” made by them, including payment, R & K Ranch had the option to “declare the contract null and void.” The district court also found that R & K Ranch did declare the contract void.
In addition to the forfeiture provision, we have noted that the contract contained a buy-back provision that allowed R & K Ranch to buy back the ground merely by reimbursing the Lewises for any payments made. The district court also found this provision gave R & K Ranch the authority to take the property back without payment to the Lewises in September 2004: “Under the terms of the contract the sellers were permitted to do so and had no requirement to reimburse the Lewis [es] because no payment to that date had been made in September of 2004. That is exactly what happened when R & K Ranch sold the property to K & K Farms.”
In sum, the district court found as a factual matter that the Lewises never made any payment toward the ground purchase. The Lewises’ failure to meet their payment obligations gave R & K Ranch the option to declare the contract void, and the district court found that R & K Ranch did so. The Lewises’ failure to meet their payment obligations also gave R & K Ranch the ability to use the buy-back provision of the contract without having to make any out-of-pocket payment to the Lewises. The district court also found that R & K Ranch properly relied upon that provision. The district court properly found that the Lewises had no further rights under the purchase contract.
II. The District Court Properly Quieted Title to the Disputed Real Estate to K & K Farms.
The Lewises separately claim that K & K Farms did not obtain clear title to the disputed ground because the Lewises had gained equitable title to it. According to the Lewises, this equitable title could only be eliminated in a foreclosure lawsuit.
In support of their claim, the Lewises cite Lumber Co. v. Arnold, 88 Kan. 465, 129 P. 178 (1913). In that case, a party agreed to purchase real estate under an oral contract that gave the buyér the ability to take possession of the real estate and build houses on it before making any payments. After the buyer hired suppliers when building the houses and those suppliers filed a mechanic’s lien, the Kansas Supreme Court held that the buyer was estopped to deny, ownership even though payment had not yet been made.
In addition to the Lumber Co. case, we acknowledge the general rule that in a contract-for-deed sale of real estate, a deed granting ownership to the buyer, isn’t recorded until all payments have been made, but the buyer has an equitable ownership interest that must be foreclosed to ehminate it. See Graham v. Claypool, 26 Kan. App. 2d 94, Syl. ¶ 3, 978 P.2d 298 (1999). But the Lewises read, too much into the Lumber Co. case. They contend- that under it every party who purchases real estate on a contract basis immediately becomes the equitable owner, even without payment. They argue that under it their equitable ownership remains unless a foreclosure proceeding is instituted, no matter what the terms of their purchase contract may say.
But there are also a number of important differences between the Lumber Co. case and our case. In Lumber Co., the buyer had: no.preexisting right of possession to the real estate, and the contract expressly provided that the buyer- could take possession and build houses on the ground before making payment. Here, of course,the Lewises .were , already occupying -the pasture ground by lease.. In addition, the evidence suggested that they retained occupancy via lease, after-the sale to K & K Farms; the base amount that the Lewises actually paid after the .sale to K & K Farms changed to a total payment of $9,525 twice yearly, the same rental they had paid for the full leased acreage before contracting tó buy part of the ground. In addition to these factual distinctions,- the legal setting of the Lumber Co. case is far different than our case as well: it involved whether a party was-an owner for the purpose of allowing another to file a mechanic’s hen against the property. The Kansas Supreme Court later noted that just because a party was considered an equitable owner for the purpose of filing a mechanic’s hen, the factual scenario in Lumber Co., did not mean that the party was actually-the owner of the real estate. Kennedy v. Atchison, 162 Kan. 694, 698-99, 178 P.2d.987 (1947).
The district court in our case noted that the purchase contract between the Lewises, and R & K Ranch didn’t provide any provision for the Lewises to have equitable title and that the Lewises made no “substantial contribution” either to the title or to payment on the purchase price.
In these circumstances, we conclude that a foreclosure suit was not required to eliminate the possibility of an equitable title interest by the Lewises. The Lewises signed the purchase contract with the forfeiture and buy-back provisions that we have already noted, and the Lewises made no payment toward the purchase. The Lewises already occupied the land under lease before signing the purchase contract, and the Lewises effectively paid rent in exchange for their continued possession of the property. The district court did not err in granting judgment as a matter of law quieting title to the disputed farm ground to K & K Farms.
III. The District Court Did Not Err in Awarding the Money Paid into Court to R & K Ranch.
The last issue involves what to do with $4,500 that the Lewises paid into court while the lawsuit was pending. The parties agree— and so do we — that the district court’s decision on this issue should be reviewed for abuse of discretion, which means that we should uphold that decision unless no reasonable person would agree with it. See In re Estate of Lane, 39 Kan. App. 2d 1062, 1070, 188 P.3d 23 (2008).
The Lewises made two payments into court in die amount of $9,525. But the 2004 ground lease didn’t cover the purchased ground and called for a payment of only $7,275. Thus, an extra $2,250 was included in each payment, for a total of $4,500.
The Lewises contended that these represented additional partial payments toward the land purchase, but we have already affirmed the district court’s conclusion that R & K Ranch properly declared that contract void and sold the ground to K & K Farms before these payments were made. In the event we affirmed the district court’s judgment on that issue, the Lewises argue on appeal that the money should be refunded to the Lewises.
In support of this argument, the Lewises note that the district court upheld the sale of the ground to K & K Farms in 2004. Because the payments were made after that date, the Lewises ar gue that they should not go to R & K Ranch, which no longer owned the property.
The district court found that as a matter of equity, the Lewises had occupied the disputed ground pending resolution of the lawsuit and that they should have to pay something in rent. The court found that it was equitable to order the $4,500 charged as rent and paid out to R & K Ranch. The court separately found that the 2004 lease to the nondisputed ground remained in effect, a ruling not appealed to us.
The Lewises chose to pay the sum of $9,525 into court, even though the 2004 lease called for a payment of only $7,275. The Lewises also chose to continue occupancy of the disputed ground. The district court heard testimony that indicated K & K Farms had tried to place cattle on that ground in 2006, but the Lewises turned those cattle out. When the Lewises paid the money now at issue into the court while occupying ground no longer covered under a written lease, those actions gave the court equitable power to determine how to allocate those sums. The court was well within its equitable authority to order that the money be treated as rent.
The Lewises’ separate argument that the money shouldn’t be paid to R & K Ranch, since it no longer owned the property, might have merit if it were supported by K & K Farms. But K & K Farms told the district court to pay the money out to R & K Ranch; The Lewises occupied the disputed ground and do not claim that the $4,500 was an unfair rental rate for the time they occupied it. To whom the money should be paid is a matter between R & K Ranch and K & K Farms. Since K & K Farms told the court to disburse the funds to R & K Ranch, the district court did not err in making that its order.
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Leben, J.:
Ball’s Food Stores appeals the decision of the Workers Compensation Board that Ball’s Food’s former employee, Sandra Adams, suffered a permanent total disability. K.S.A. 44-510c(a)(2) says that a permanent total disability exists when a work-related injury has left the employee “completely and permanently incapable of engaging in any type of substantial and gainful employment.” Ball’s Food points to a great deal of evidence that would suggest that Adams could perform some light work duties. But substantial evidence supports the Board’s conclusion that Adams was unable to work, so we are required to affirm its judgment given the limited standard of review in administrative appeals.
The Kansas Supreme Court recently noted in Hall v. Dillon Companies, Inc., 286 Kan. 777, 189 P.3d 508 (2008), that the standard of review is “highly deferential” to the Board’s factual conclusions. We look to be sure that substantial evidence supports the Board’s conclusions, and we look at the evidence in the light most favorable to the prevailing party. We must uphold the Board’s conclusion when it is supported by substantial evidence “even though other evidence in the record would have supported contrary findings.” So our first and primary task in this case is to see whether substantial evidence, which is “something of substance and relevant consequence . . . [that] furnishes a basis of fact from which an issue can be resolved reasonably,” supports the Board’s conclusion. 286 Kan. at 780.
Substantial evidence supports the Board’s conclusion that Adams is no longer able to engage in “substantial and gainful employment.” K.S.A. 44-510c(a)(2). Dr. Ethan Bickelhaupt, aboard-certified neurologist and psychiatrist with a subspecialty in geriatric psychiatry, testified that he did not believe the limitations caused by her work-related injuries allowed her to be gainfully employed at this time. He saw her in 2004, 2005, and 2006; he found her unchanged in 2006 over 2005 and concluded that “there’s not an area that immediately is available to her for which she could achieve gainful employment on an ongoing and long-term basis.”
Dr. Robert Barnett, a clinical psychologist, testified that Adams’ ability even to do a light-duty job, like providing food samples in the grocery store, would be significantly impaired by her condition. He said that she could not be reliably depended on to perform even a part-time, light-duty job.
In addition, Adams testified that she quit performing the light-duty job she’d been given providing food samples because of the pain: “[I]t didn’t work. I didn’t finish out the shift. I had too much pain.”
Many doctors, vocational experts, and other individuals also testified in this case. The parties are familiar with their testimony, and we will not review all of it in this opinion. We have carefully looked, however, to be sure that no uncontradicted evidence directly undercuts the Board’s conclusion. See Hall, 286 Kan. at 781 (Board decision may be reversed if it arbitrarily disregarded undisputed evidence). We have not found such evidence. We will review the basic facts of the case to put into context the testimony of Dr. Bickelhaupt, Dr. Barnett, and claimant, and we will explain why we find it sufficient to support the Board’s finding under the standard set out in Hall.
Adams worked at a Price Chopper Ball’s Food Store in Leavenworth from 1992 until February 2004. She worked in the meat department, mainly wrapping meat. She had a work-related injuiy in 1999 for which she had carpal tunnel surgery in 2001 on both hands. She returned to her meat-wrapping job after that, but scar tissue was then discovered and attributed to her continued repetitive work activities. Adams then saw several doctors. Dr. Galate, to whom she was referred by Ball’s Food, said that her work in the meat department was making her condition worse. Ball’s Food then moved her to a position that involved pricing. But Adams still felt that she was unable to perform these duties for substantial time periods because of severe pain. Ball’s Food tried to accommodate her with light-duty work, eventually in a position that included giving out food samples. But Adams said she was ultimately unable to do that job as well because of chronic, severe pain.
Ball’s Food disputes her inability to work and points out that several medical doctors had limited her to lifting no more than 15 pounds and had said she should limit repetitive movements. But these doctors had not said she was unable to work at all. In addition, the doctors added that vocational experts had not concluded that she was unable to perform all the job tasks.
Adams’ situation is complicated by her psychiatric or psychological condition. As the Board noted, “There is no dispute that [Adams] has chronic pain. There is also no dispute that as a result of that condition [Adams] developed a psychiatric condition,” described in different terms by different experts but recognized in some form by ones hired by both sides. The Board also concluded, “The doctors all attributed [Adams’] psychological condition to her work-related injuries.”
Lasting psychological effects of work-related injuries are compensable. Gleason v. Samaritan Home, 260 Kan. 970, Syl. ¶¶ 3-4, 926 P.2d 1349 (1996); Helmstetter v. Midwest Grain Products, Inc., 29 Kan. App. 2d 278, Syl. ¶ 3, 28 P.3d 398 (2001); Boutwell v. Domino’s Pizza, 25 Kan. App. 2d 110, 113-15, 959 P.2d 469, rev. denied 265 Kan. 884 (1998); Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, 308, 868 P.2d 546 (1994). Thus, the Board was free to rely upon both Adams’ physical restrictions and her psychological restrictions in determining her disability.
Ball’s Food does not dispute the legal rule that the psychological effects of work-related injuries are compensable. Instead, Ball’s Food first argues that Adams didn’t have a compensable psychiatric condition because no doctor or vocational expert specifically said she could not or should not perform any work-related activities. Ball’s Food then argues that Adams said she quit because of pain, not a psychological issue, and she wasn’t diagnosed with a psychological problem until several months after she quit working. Ball’s Food then finishes its argument by returning to the lack of work restrictions, i.e., no one told her she couldn’t work and added that none of the experts gave her a 100% disability rating either. Although evidence supports Ball’s Food on each of those points, evidence also supports the Board’s conclusion.
Let’s take the issue of disability ratings and work restrictions first. Physician opinions based on the American Medical Association Guides to the Evaluation of Permanent Impairment are the means generally required by statute for determining permanent partial disability ratings. K.S.A. 44-510e. But that’s not what was required in Adams’ case because the Board found Adams had a permanent total disability, which the statute defines simply as “when the em ployee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment.” K.S.A. 44-510c(a)(2). On this issue, the legislature has not required specific physician testimony or limited the basis of opinion testimony to a specific guidebook, as it did in K.S.A. 44-510e. Instead, except in cases involving loss of hands, eyes, feet, or legs, K.S.A. 44-510c(a)(2) requires simply that “permanent total disability shall be determined in accordance with the facts.” Similarly, the statute does not require a physician s opinion that a person cannot physically perform any work-related tasks. Thus, the Board was free to consider all of the evidence in determining whether Adams was totally and permanently unable to work. Neither a 100% disability rating from a doctor nor a doctor s prohibition of work activities is required under K.S.A. 44-510c. See Lyons v. IBP, Inc., 33 Kan. App. 2d 369, 376-78, 102 P.3d 1169 (2004) (affirming Board finding of permanent total disability on “totality of the circumstances approach” even though no medical doctor rated claimant 100% disabled); Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110, 115, 872 P.2d 299 (1993) (evidence that a claimant can perform part-time, sedentary-type work does not require reversal of the factual determination that claimant is permanently and totally disabled); see also Graff v. Trans World Airlines, 267 Kan. 854, Syl. ¶ 3, 983 P.2d 258 (1999) (medical testimony is not usually required for proof of existence, nature, or extent of disability of an injured worker under the Kansas Workers Compensation Act).
The Board noted that Adams testified she was “unable to work as a result of her chronic pain,” testimony the Board as fact-finder certainly found credible. “Although her physical restrictions would not prevent her from working,” the Board concluded, “it is the chronic pain that prevents her from working.” The Board then relied on the testimony of Dr. Bickelhaupt and Dr. Barnett. Each doctor testified that in his opinion Adams could not maintain gainful employment, even part-time. So the Board concluded that Adams was permanently and totally disabled.
The Board’s conclusion is not rebutted by Ball’s Food’s argument that Adams’ psychological problems either were not diag nosed by February 2004 or may have developed somewhat after February 2004. Kansas workers compensation law does not require a medical condition to be diagnosed before an employee ceases work because die pain is too great to continue. In addition, so long as the psychological condition is a direct result of the work-related injury, as the evidence showed here, there is no reason that the psychological condition must have begun by the same date that the employee could no longer work because the pain was intolerable. Health problems may change as treatments are attempted and succeed or fail. So long as the workers compensation proceeding remains open, the Board must consider the claimant’s condition as it exists. To the extent that disabilities are caused by work-related injuries, those disabilities are compensable.
Even a psychiatrist hired by Ball’s Food concluded that Adams had a permanent psychiatric disorder that her work-related injuries caused. Dr. Patrick Hughes, a board-certified psychiatrist, examined Adams in 2004, 2005, and 2006. He assessed a 10% permanent partial impairment of the whole body from psychiatric distress. While he did not conclude that Adams was unable to work, Dr. Bickelhaupt and Dr. Barnett did. Their testimony, considered along with Adams’ testimony, provides substantial evidence in support of the Board’s conclusion.
Ball’s Food based several of its arguments on K.S.A. 44-510e, which applies to permanent and temporary partial disability, while K.S.A. 44-510c applies to permanent and temporary total disability. See Wells v. Waffle House, Inc., No. 91,334, unpublished opinion filed August 13, 2004, slip op. at 9-12 (noting distinction between coverage of K.S.A. 44-510c and 44-510e and affirming Board’s finding of total disability notwithstanding argument that claimant may not have made efforts to find employment, which may preclude full award under K.S.A. 44-510e). Ball’s Food’s arguments based upon provisions of K.S.A. 44-510e are not cause to reject the Board’s conclusion of total disability under K.S.A. 44-510c.
The decision of the Workers Compensation Board is affirmed. | [
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Opinion by
Clogston, C.:
The record in this case presents but few disputed questions of fact, and those of but minor importance. But two errors are presented as occurring at the trial, and these are, first: In the introduction and admission of evidence on behalf of the plaintiff as to the amount of improvements made upon the land in controversy after its purchase and possession by the plaintiff. In the admission of this evidence we see no error. One of the allegations in the plaintiff’s petition was that he was in possession of the premises, and had been for more than fifteen years, and claiming title thereto. This evidence was competent to show this possession, and in showing this he might show what things he had done — what improvements he had made to establish his claim of ownership and his possession.
The second error alleged is in the introduction by plaintiff below of the deposition of defendant, plaintiff in error, taken in an action in which plaintiff was plaintiff, and one Stevens was defendant. This deposition was doubtless offered as the declaration of Chellis as to the facts connected with this land. The facts sought to be established, or the admissions made, were that Chellis long before the commencement of this action, knew that some one was in possession of this land, and was paying the taxes thereon. The admission of this deposition was error. The record shows that there was no foundation laid for the testimony; and while it was offered as the declarations of Chellis, or his admissions, it was nowhere shown that Chellis made these declarations, or that the deposition was written by him or signed by him. This preliminary proof was necessary before the deposition could be offered in evidence. But supposing this to be true, the next inquiry is, was this evidence of such a character as to prejudice the interests of Chellis? Chellis claimed to be the owner of this land, and his claim was founded upon his purchase from Merrick and Stickney, and if he had any interest therein it was by virtue of that conveyance. If he had not been divested of that title, then it could make no difference that some one, without authority and right, had gone upon the land and made improvements and paid the taxes. That could not divest Chellis of his title except by the statute of limitation; and even had there been a sufficient foundation laid for it, it would not have been competent or material testimony tending to establish any of the allegations in the plaintiff’s petition.
The only remaining question then is, Was the judgment sustained by sufficient evidence, and is it according to law ? The motion for a new trial alleged the negative of this proposition as a reason why a new trial should be granted. Upon what theory the court rendered judgment in this action we are unable to say. The findings of the court were, that the allegations of the plaintiff’s petition and reply were true, and that the defendant had no title to the land by reason of his deed from Merrick and Stickney; and upon these findings the court rendered judgment for the plaintiff below. The plaintiff’s petition alleged title to the property by reason of his purchase and deed from Sumner, and Sumner’s title through the bankrupt proceedings. The defendant answered thereto, first, by a general denial; and second, alleged title in himself to a three-fifths interest by virtue of a deed from Merrick and Stickney, in 1860. To this answer plaintiff replied: First, by a general denial; secoud, that the defendant’s deed was void, and never was of any effect or force, and was without consideration; third, that the defendant’s title and claim to the land was barred by the possession of the plaintiff under color of title for fifteen years; fourth, that the defendant’s claim of title and interest in the land was barred, and that he was estopped from setting-up or claiming any title thereto by reason of the mortgage of Merrick and Stickney to Tuck; the assignment of the same to Sumner; the adjudging of Merrick and Stickney as bankrupts; the settlement by the assignee with Sumner, and the conveyance of the land in controversy to Sumner by the assignee; the confirmation of said proceedings by the bankrupt court; the acceptance of said conveyance-by Sumner in full satisfaction of $8,573 of said indebtedness in said Tuck mortgage; the recording of said deed of assignment by said assignee to Sumner, in 1875, in Dickinson county; that said defendant was a creditor of said Merrick and Stickney, and duly proved his claim against said bankrupt estate in said district court, and thereby became a party to the record and proceedings in bankruptcy, and as such party well knew of the proceedings therein, and the sale and transfer of the land in question to Sumner, in settlement of his claim; that said land had been • scheduled as assets by said bankrupts, and that said defendant, with a full knowledge of all of said proceedings, made no objection thereto, and allowed and permitted said Sumner to take said land as the property of said bankrupts in satisfaction of his mortgage debt, in good faith, and that said defendant is estopped and debarred from setting up his said deed and claiming any title or interest in said laud by reason of said proceedings. The defendant in error now insists that the allegations of his petition and reply were sustained so far as the same relate to the mortgage to Tuck by Merrick and Stickney, the assignment of the same to Sumner, and Sumner’s settlement and deed of conveyance from the assignee in bankruptcy, and his title from said Sumner by deed, and possession thereunder. It will be seen by this claim that the fifteen-years statute of limitation is abandoned; in fact, the evidence failed to establish adverse possession for fifteen years.
The next question presented is the legal effect of the schedule made by Merrick and Stickney as bankrupts, including this land as part of the assets, and the settlement by the assignee with Sumner, and his transfer of the land in settlement of the Tuck mortgage. Defendant in error insists that this was an adjudication, and as such that it is entitled to the same protection as that of all other courts of competent jurisdiction. If this is true, then Chellis’s title was wiped out by that judgment. Defendant insists that Chellis was a party thereto; that by reason of his filing a claim against the bankrupts and his settlement of said claim with said bankrupts, that he was bound to take notice of the entire proceedings in bankruptcy, and whatever of those proceedings affected his interest he must take notice of and defend against, or be forever estopped from claiming title to the property. There is no pretense that Chellis had actual notice of these proceedings; but it is claimed, first, that he had constructive notice of what the record shows by being a party to said proceedings; and second, by his having appointed Stickney his agent or attorney in fact to settle, compromise and adjust his claims, and that whatever knowledge Stickney had was notice to Chellis. If this claim is true, then Chellis had actual knowledge, for whatever was knowledge to the agent was knowledge to the principal, if within the line and scope of his authority.
In addition to the foregoing, the defendant insists that if plaintiff in error was not estopped by these proceedings from claiming title, then he is barred by the two-years statute of limitation provided for in the bankrupt law, which is in substance as follows:
“ No suit at law or in equity shall in ¿ny case be maintainable by or against any person claiming an adverse interest touching the property and rights in property of the bankrupt, transferable to or vested in such assignee, in any court whatsoever unless the same shall be brought within two years of the time the cause of action accrued.”
The first question to be considered is, was the defendant barred by this statute of limitation ? If he was, that disposes of the action. The plaintiff in error insists that if this statute was in force, then it was not pleaded by the defendant, and therefore he cannot take advantage of it. By a careful examination of the plaintiff’s reply, we find no allegation of this kind; nowhere does he directly point out or claim that by reason of this statute of limitation the defendant is barred. He pleads the fifteen-years statute of limitation, and alleges it as a separate defense; in reply he pleads res adjudicada, and estoppel, and alleges that by reason of the decision of the bankrupt court setting aside this land to Sumner, in satisfaction of his claim, that this was such an adjudication as would bind the defendant, who was a party to that action. Second, that the defendant was estopped from claiming title to the land, even though he was not barred by this decree or judgment, for the reason that he had full knowledge of the transaction and of the good faith of Sumner, and with this knowledge kept silent, and is therefore barred from claiming title thereto; but nowhere in this reply does he suggest that he claimed by reason of the lapse of two years from the sale by the assignee to Sumner, and that by reason of such lapse of time the defendant is barred from claiming title by said two-years statute. To avail himself of this statute he must specifically plead it, and not having done so, he cannot now claim the benefit of it. Then it is not material for us to inquire whether or not this statute would have protected the plaintiff if properly pleaded.
We shall now pass to the remaining questions: Was this schedule of the property to the assignee and the sale and transfer by the assignee to Sumner, and the confirmation thereof by the court, an adjudication of the claim of the defendant in error ? It is not claimed by the plaintiff in error that, if the matter had been properly presented to the bankrupt court all the questions in relation to the title might not have been settled by that court; and when so presented to the court that the judgment would not have been as binding as if rendered in any other proceeding; but in this case, as far as shown by the record, no such presentation of the facts was made, by which the court could or would have passed upon the question of title. The bare fact that both Sumner and Chellis held claims against the bankrupts; that both filed their claims and both claims were compromised, not apparently conflicting with each other; no controversy between the parties; no common claim upon any of the property in controversy; no question as to which of the claimants should have this or that property; no question presented to the court as to what interests the bankrupts had in any of the property; and yet under this presentation it is claimed that this was an adjudication of the rights of the parties. This question has been passed upon by this court in Wilkins v. Tourtellott, 28 Kas. 825, in which it was said:
“But the mere fact that the assignee of his own volition scheduled it, and upon its own application obtained an order for its sale, does not conclude the bankrupt. All that the order of the court determined is the fact of bankruptcy, the regularity of the proceedings, and that whatever title the bankrupt had at the time of filing the petition in bankruptcy has been transferred to the purchaser. There is no warranty of title in a sale by the assignee in bankruptcy, any more than in any other judicial sale.”
(See also In re Goodfellow, 1 Lowell, 510; Hynson v. Burton, 5 Ark. 492; Mays v. Manufacturers’ Bank, 64 Pa. 74.)
From these authorities, under the facts of this case, there was no such adjudication as will bind the plaintiff in error from claiming title.
We now pass to the last question: Is the plaintiff in error estopped by reason of his being a party to the proceedings, or by the knowledge possessed by Stickney, his agent ? We think not. It is a well-settled rule that to constitute estoppel of this character with respect to the title of property, such as will prevent a party from asserting his legal rights, and the effect of which would be to transfer the enjoyment of property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established. Judge Story says: “In all this class of cases the doctrine proceeds upon the ground of constructive fraud, or of gross negligence, which in effect implied fraud.” The evidence in this case shows that Chellis had no actual knowledge that Merrick and' Stickney had mortgaged that property to Tuck, and no knowledge that they had included this land in a list of their assets, and that the same was turned over to Sumner in satisfaction of his secured claim or mortgage on the laud by the assignee. True, Stickney had full knowledge of these facts. He had this knowledge independent of his connection with the bankrupt proceedings as the agent of Chellis. None of this information came to him by reason of such agency, or by any act to be performed by him for Chellis. It was a knowledge he had independent of the settlement of the Chellis claim — knowledge that he possessed because of the business transacted by himself. Then how can it be said that this knowledge must bind the plaintiff in error ? He had given no power of attorney to transact or bind in any manner, save and except to compromise and settle his claim with the assignee. What fraud is brought home to him ? He made proof of his claim at his home in New Hampshire; was not present at the transaction of any of the business connected with the bankrupt estate. But counsel insist that the law implies a knowledge of whatever took place in the bankrupt proceedings. That is true so far as the matters connected with the transactions in which he was interested or was bound to be interested by virtue of his claim against the estate, and no further. (Davis v. Davis, 26 Cal. 23; Palmer v. Meiners, 17 Kas. 483; Brant v. Virginia Coal & Iron Co., 93 U. S. 326.)
Again, Sumner did not accept this land in his settlement by virtue of any declaration or act or omission on the part of Chellis, nor in fact upon the declarations or acts of Stickney; but he did it because it was included in his mortgage. He was resting secure, believing that Merrick and Stiekney had a title to the land. He perhaps believed that from the fact that Merrick and Stiekney had executed this mortgage to Tuck; but had he investigated the facts and taken the ordinary precaution to look up the records of Dickinson county, he would have been informed that Chellis had a clear title to a three-fifths interest in the land. Now he asks that he be protected when he exercised no diligence to protect himself. As we said in the .start, the facts in this case are not in dispute, and as disclosed by the record they show an entire want of testimony in support of the judgment pronounced by the court.
It is therefore recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
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McAnany, J.:
Edward Harold Roberts was the plant superintendent for Midwest Mineral, Inc. He was responsible for supervision of Midwest’s various quarry operations. His average weekly wage was $930. While making adjustments on a belt conveyor at the Coffeyville quarry, his right arm was caught in the machinery, resulting in the amputation of his arm 3 inches below the shoulder. Roberts was taken to the Coffeyville Regional Hospital where he was stabilized and then sent to St. John’s Hospital in Tulsa, Oklahoma, for treatment. He was hospitalized for about 5 days. He was then fitted with a prosthesis and returned to work about 3 weeks after the accident.
The administrative law judge (ALJ) who considered Roberts’ workers compensation claim found that his injury was compensable as a scheduled injury under K.S.A. 44-510d(a)(13). Midwest paid Roberts 3.29 weeks of temporary total disability (TTD) for his actual healing period and $72,378.35 in medical expenses. The parties stipulated that Roberts was entitled to compensation for traumatic amputation of his right arm (including shoulder musculature) for 225 weeks. The ALJ awarded Roberts TTD benefits for 3.29 weeks followed by 225 weeks of permanent partial disability (PPD) compensation for his scheduled injury. However, the ALJ limited the PPD award to $50,000 based on the monetary cap in K.S.A. 44-510f(a)(4) which, the ALJ found, applied to all scheduled injuries.
Roberts appealed to the Workers Compensation Board (Board). The Board, by a % majority, affirmed the ALJ’s order hmiting Roberts’ award to $50,000 pursuant to K.S.A. 44-510f(a)(4). The dissent noted, among other things, that the $50,000 cap in K.S.A. 44-510f(a)(4) applies only “for permanent partial disability where function impairment only is awarded.”
Roberts now appeals to us, arguing that the $50,000 compensation cap in K.S.A. 44-510f(a)(4) does not apply. This involves a matter of statutory interpretation, which is a question of law. Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007); see Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
The Statutes
Our review of the relevant statutory scheme discloses that scheduled injury statutes exist in nearly every state’s workers compensation system. 4 Larson’s Workers’ Compensation Law § 86.01, p. 86-2. Unlike the benefits for other injury claims, tire benefits for scheduled injuries are not dependent upon actual wage loss. Rather, the schedule sets a statutory irrebuttable presumption of the worker’s loss of earning capacity, regardless of how much or how little time was lost from work on account of the injury. 4 Larson s Workers’ Compensation Law § 86.02, p. 86-5.
— K.S.A. 44-510d
In Kansas, scheduled injuries are characterized in K.S.A. 44-510d as “permanent partial disabilities.” If an employee’s work-related injury is a scheduled injury, the employee is not entitled to compensation beyond K.S.A. 44-510d “except that the director, in proper cases, may allow additional compensation during the actual healing period following amputation.” K.S.A. 44-510d(b).
Under K.S.A. 44-510d, compensation for a scheduled injury is paid for a specified number of weeks depending upon the body part for which the claimant has experienced (1) a total loss (amputation) or (2) a permanent and total loss of its use (no amputation).
K.S.A. 44-510d(a)(23) provides that the “[l]oss of a scheduled member shall be based upon permanent impairment of function to the scheduled member” as determined using the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guidelines) (4th ed. 1993). This reference to the AMA Guidelines is the only reference to a functional impairment standard mentioned in K.S.A. 44-510d. This reference to functional impairment was added in conference committee in enacting legislative changes in 1993.
The maximum number of weeks of impairment for a nonscheduled functional impairment is 415 weeks pursuant to K.S.A. 44-510e(a). However, when a claimant suffers an amputation that includes the shoulder, K.S.A. 44-510d(a)(13) provides for an award of benefits which is limited to 225 weeks.
— K.S.A. 44-510e
If the worker’s PPD does not arise from a scheduled injury, K.S.A. 44-510e, which relates to permanent partial general disabilities, applies. Casco v. Armour Swift-Eckrich, 283 Kan. at 528.
The definition of functional impairment is found in K.S.A. 44-510e. “Functional impairment” is defined as “the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body” under the AMA Guidelines.
As noted earlier, K.S.A. 44-510e(a)(1)-(3) provides that a claimant suffering a permanent partial general disability is entitled to receive at least 415 weeks of compensation at 662/3% of the claimant’s weekly wage, less TTD paid, multiplied by the percentage of functional impairment.
— K.S.A. 44-510f
K.S.A. 44-510f establishes the employer’s maximum liability for disability compensation. Before 1993, K.S.A. 44-510f(a) limited the maximum workers compensation award to either $100,000 or $125,000. In 1993, subsection (a)(4) was added to K.S.A.-44-510f to limit awards to $50,000 for “permanent partial disability, where functional impairment only is awarded.” L. 1993, ch. 286, sec. 35. The statute now provides:
“(a) Notwithstanding any provision of the workers compensation act to the contrary, the maximum compensation benefits payable by an employer shall not exceed the following:
“(3) Subject to the provisions of subsection (a)(4), for permanent or temporary partial disability including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due, $100,000 for an injury or any aggravation thereof; and
“(4) for permanent partial disability, where functional impairment only is awarded, $50,000 for an injury or aggravation thereof.” K.S.A. 44-510f(a).
Our statutory scheme for scheduled injuries automatically reduced the number of weeks of compensation for Roberts’ injury from the 415 weeks which would be allowed for a nonscheduled injury to 225 weeks for the loss of his arm and shoulder, a scheduled injury. Functional impairment is considered only in instances where the claimant suffers from a partial loss of use of a member; in which case there must be a determination of the percentage of loss of use of the scheduled member.
Legislative History
There is no meaningful legislative history regarding K.S.A. 44-510f(a)(4) or K.S.A. 44-510d(a)(23). It appears the legislature be gan struggling with workers compensation reform in 1991 because of accelerating costs to employers and their insurers. Also on the minds of legislators and the public was the ongoing notoriety of a workers compensation claim asserted by the Kansas Insurance Commissioner Fletcher Bell for a back injury sustained when he lifted a heavy briefcase from the trunk of his car while attending a meeting of insurance commissioners.
The first attempt at legislative reform was House Bill 2207, introduced in February 1991. House J. 1991, p. 149: After H.B. 2207 was passed and sent to the Senate, it languished there until April 1992 when the Senate Labor, Industry, and Small Business Committee recommended its passage. House J. 1991, p. 323; Sen. J. 1991, p. 261; Sen. J. 1992, p. 2008. While in the Senate Committee as a Whole, the language similar to what is now K.S.A. 44-510d(a)(23) (referring to the AMA Guidelines in the scheduled injury statute) and K.S.A. 44-510f(a)(4) (adding the $50,000 cap) was added, and the bill passed. Sen. J. 1992, pp. 2093, 2131. However, the bill was sent back to the House, where it never came out of committee. House J. 1992, p. 2527.
While H.B. 2207 was languishing in the Senate, the House Labor and Industry Committee introduced H.B. 3039 in the House on February 13,1992. House J. 1992, p. 1349. During the meeting of the House Committee as a Whole, various members attempted to add amendments including language similar to what is now K.S.A. 44-510d(a)(23) (referring to the AMA Guidelines in the scheduled injury statute) and K.S.A. 44-510f(a)(4) (adding the $50,000 cap). Those amendments were rejected, and the bill was passed without them. House J. 1992, pp. 2310-11. When H.B. 3039 was sent to the Senate on April 11, 1992, the bill was referred to the Committee as a Whole but stricken from the calendar in May 1992. Sen. J. 1992, pp. 1999, 2566.
Following the 1992 legislative session, a legislative interim committee, which was comparing H.B. 2207 to H.B. 3039, noted that there were task forces also working on workers compensation issues for the Governor and the Insurance Commissioner. 1993 Kansas Report on Legislative Interim Studies, p. 188. While the committee noted that both H.B. 2207 and H.B. 3039 had different caps for “functional impairment only,” it made no recommendation regarding the caps. 1993 Kansas Report on Legislative Interim Studies, pp. 185, 191. The committee recommended the legislature deal with a variety of issues, including the problem of defining “work disability” under the permanent partial disability statutes, but made no mention of capping benefits. 1993 Kansas Report on Legislative Interim Studies, p. 191.
In 1993, workers compensation reform started with Senate Rill 307, which was introduced in February 1993. Sen. J. 1993, p. 152. S.R. 307, as originally drafted, was passed unanimously by the Senate on March 30, 1993, and sent to the House the same day. Sen. J. 1993, p. 668; House J. 1993, p. 706. The House passed the bill with only minor amendments in April 1993. House J. 1993, p. 987. After returning to the Senate, the bill was sent to a six-member conference committee. Sen. J. 1993, p. 952. During the conference committee’s deliberations, the committee added language similar to what is now K.S.A. 44-510d(a)(23) (referring to the AMA Guidelines in the scheduled injury statute), and K.S.A. 44-510f(a)(4) (adding the $50,000 cap). Sen. J. 1993, p. 1116. The bill, as amended by the conference committee, was approved by both the House and the Senate and signed by the Governor. Sen. J. 1993, pp. 952, 1223; House J. 1993, pp. 1154, 1224.
There were no minutes preserved from these legislative conference committees. However, in the 1993 Kansas Legislature Summary of Legislation, published by the Legislative Coordinating Council and the Legislative Research Department, S.R. 307 was discussed, noting that the bill permitted benefits during a healing period only in cases involving amputation and that the bill required the use of the AMA Guidelines to determine impairment “for all scheduled injuries.” 1993 Kansas Legislature Summary of Legislation, p. 160. In a separate paragraph entitled “Permanent Partial General Disabilities-Maximum Renefits-Work Disability,” S.R. 307 was described as establishing the work disability standard (unable to engage in work at 90% of prior wage rate). The $50,000 cap for functional impairment awards was discussed only in this subsection of the legislative summary. 1993 Kansas Legislature Summary of Legislation, p. 160.
Functional Impairment
Next, we consider whether functional impairment benefits were awarded for Roberts’ amputation, making the $50,000 limitation in K.S.A. 44-510f(a)(4) applicable. If functional impairment benefits were not awarded, then Roberts’ award is limited to $100,000 under K.S.A. 44-510f(a)(3).
A majority of the Board held that the $50,000 limitation provision applied. The Board offered two reasons for its decision. First, it held that its previous decision in Biggs v. Davis, Unrein, Hummer, McCallister, Biggs & Head L.L.P., Docket No. 241,091 (February 13, 2002), controlled. In Biggs, the Board held that there is nothing in K.S.A. 44-510f(a)(4) that excludes scheduled injuries or limits it to general body injuries. Biggs, an attorney, was involved in an automobile accident in which he suffered a 78% permanent partial disability to his upper arm at the shoulder. He received 5.14 weeks of TTD. The Board rejected his argument that K.S.A. 44-510f(a)(4) only applied to nonscheduled general body disabilities, noting that the language of K.S.A. 44-510f(a)(4) did not specifically .limit its application to nonscheduled injuries. Moreover, the Board cited to the Kansas Workers Compensation Handbook, which indicated the provision was intended to “prevent large recoveries on functional ratings by highly paid white collar workers who sustain injuries, but miss no work,” without noting the handbook’s caveat that if TTD was awarded as well, the “functional impairment only” provision might well not apply. Worker’s Compensation Handbook § 9.04, p. 9-9.
Second, the Board held that Roberts’ argument that an amputation should be treated differently because an amputation was a loss of a scheduled member, as opposed to its loss of use, fails because both loss of and loss of use injuries are treated the same under K.S.A. 44-510d.
As in the case now before us, two members of the Board in Biggs dissented, noting that PPD benefits payable for scheduled injuries were already limited by statute and that the reference to “functional impairment only” could only refer to nonscheduled, general body disabilities. The Biggs dissenters also argued that even if K.S.A. 44-510f(a)(4) applies to some scheduled injuries, it does not apply to amputations because there is no functional impairment for an amputation and “loss of a scheduled member by amputation is not compensated based upon a percentage of functional impairment.”
Biggs does not control. In Biggs, the claimant did not suffer an amputation but rather an injury to his upper arm and shoulder for which he was awarded compensation based on a permanent partial general disability. The parties stipulated that Biggs suffered “a 78 percent permanent partial disability to the left upper extremity at the shoulder based upon the 80 percent functional impairment opinion of Philip E. Higgs, M.D., and the 76 percent functional impairment opinion of Joseph G. Sankoorikia, M.D.” Biggs, Board slip op. at 2.
Compensation for Biggs’ injury was controlled by K.S.A. 44-510d(a)(21), which governs the permanent partial loss of the use of a shoulder. This section of K.S.A. 44-510d(a)(21) differs from the sections governing an amputation because it provides for a different manner of calculating an award if the injury involves a permanent partial loss, as opposed to a total loss of or total loss of use. Unlike in Roberts’ case, Biggs had to provide expert testimony concerning the functional impairment of his shoulder, and the functional impairment was considered in calculating his award. To the contrary, Roberts provided no such medical testimony. This is because in the case of an amputation, the award is not based upon a percentage of functional impairment. The award for an amputation is computed by multiplying the worker’s weekly TTD compensation rate by the number of weeks of compensation allotted for the scheduled member. K.S.A. 44-510d; K.A.R. 51-7-8(b)(3).
While the Board in Biggs erroneously ruled that the $50,000 limitation in K.S.A. 44-510f(a)(4) applies to all permanent partial general disabilities and all scheduled injuries listed in K.S.A. 44-510d, the only issue before the Board in Biggs was whether K.S.A. 44-510f(a)(4) applied to the permanent partial general disability arising from the loss of the use of Biggs’ shoulder.
The Board’s decision in the case now before us begs the following question: If the $50,000 compensation cap in K.S.A. 44- 510f(a)(4) applies to both scheduled and nonscheduled injuries, then what type of claims are subject to the $100,000 compensation cap in K.S.A. 44-510f(a)(3)? The legislature could have rewritten K.S.A. 44-510f(a)(3) when it enacted K.S.A. 44-510f(a)(4) to make the distinction clear. Instead, it left the general language “for permanent or temporary partial disability, including any prior temporary total, permanent total . . . paid or due” in K.S.A. 44-510f(a)(3). Therefore, the only reasonable interpretation of the statute is that K.S.A. 44-510f(a)(4) is limited to those few cases in which a claimant does not suffer an injury that causes the claimant to lose at least a week’s time from work, but rather causes a “functional impairment only.” If there is an injuiy which prevents the claimant from working for at least a week, then the claimant is also entitled to TTD payments under K.S.A. 44-510c(b)(1), in which case the $100,000 compensation cap in K.S.A. 44-510f(a)(3) applies.
Conclusion
When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view to reconciling and harmonizing the provisions if possible. Nistler v. Footlocker Retail, Inc., 40 Kan. App. 2d 831, 839, 196 P.3d 395 (2008). In doing so, we conclude that the $50,000 benefit cap in K.S.A. 44-510f(a)(4) does not apply to Roberts because he was paid TTD for a healing period (as permitted by K.S.A. 44-510d and K.S.A. 44-510c) in addition to the maximum number of weeks for his amputation. Further, his award was not based on “functional impairment only.” Rather, the $100,000 cap in K.S.A. 44-510f(a)(3) applies because it relates to cases in which “permanent or temporary partial disability, including any prior [TTD benefits are] . . . paid or due.”
Accordingly, we conclude that the Board erred in applying the $50,000 compensation cap to Roberts’ award of benefits. We reverse and remand with directions for entry of an award consistent with this opinion. | [
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The opinion of the court was delivered by
Horton, C. J.:
Standish was convicted of a violation of §16 of the act to prohibit the manufacture and sale of intoxicating liquors. (Laws of 1881, ch. 128.) He was sentenced to be confined in the county jail of his county for forty-five days, and to pay the costs of the prosecution. He appeals to this court.
It appears that, on June 11, 1887, the grand jury of Miami county returned an indictment against him, containing three counts. The first count charged that at a certain place in Miami county he did, “on or about the month of May, 1887, unlawfully barter, sell, and give away intoxicating liquors without having a permit,” etc. The second count charged that at the same place as specified in the first count, he did, “on or about the month of May, 1887, unlawfully aid, assist and abet in keeping and maintaining a place and room in which intoxicating liquors were received and kept for the purpose of use, barter, and to give away as a beverage without having a permit,” etc. The third count charged that at the same place as specified in the first count he did, “on or about the month of May, 1887, unlawfully keep and maintain a room and place in which intoxicating liquors were received and kept for the purpose of distribution and division among members of a club and association without having a permit,” etc.
Standish moved the court to quash the indictment, for the reason that it was not a true bill, alleging that it was not the finding of twelve members of the grand jury, as twelve never concurred therein. This motion w&s attempted to be .supported by the affidavits of five grand jurors. The county attorney objected to the introduction of the affidavits, upon the hearing of the motion, and this objection was sustained by the court. Thereupon the motion to quash was overruled. In this ruling there was no error. Section 92 of the criminal code provides :
“No member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question.”
Section 97 of the same code further provides:
“Indictments, found by a grand jury, shall be presented by their foreman, in their presence, to the court, and shall be filed, and remain as records of such court.”
Under these and other provisions of the statute, a grand juror cannot be permitted to state who did or did not vote, for the purpose of showing that the proper number did not concur in finding the indictment; nor to state the fact that they did not concur. In The State v. Baker, 20 Mo. 338, Judge Eyland, speaking for the court, said that —
“If the members of a grand jury were allowed to testify whether they or their fellow-members did or did not vote, for the purpose of showing that twelve did not concur in finding the indictment, a corrupt grand juror would withhold his vote on purpose, in order to be used as a witness; that to permit this course to be allowed, every inducement for a guilty man and his friends to tamper with the grand jury is at once presented; that by our law, when the grand jurors by their foreman, in presence of the body, return an indictment into court as a true bill, it then becomes a part of the records of the court, and it should not be subjected to the attacks of parol proof by members of the very body who, in presence of their foreman, stood by in silence and saw him present it to the court; and that incalculable mischief might result to the public at large from such course of proceeding.”
Again, in The State v. Gibbs, 39 Iowa, 318, it was held that “affidavits of grand jurors that they did not assent to the finding of an indictment, are not admissible in support of a motion to set it aside.”
The jury impaneled in this case found Standish not guilty upon the first count, but guilty upon the second and third counts. After the verdict the third count was nolle prosequied by the county attorney, and Standish was sentenced upon the second count only. The court instructed the jury, among other things, as follows: “ The giving away of intoxicating liquors to be used as a beverage is an unlawful selling, within the provisions of the laws of Kansas.” And also, that—
“If you find beyond a reasonable doubt that the defendant, at the place mentioned in the second count of the indictment, did assist and abet in keeping and maintaining a place and room in which intoxicating liquors were received and kept for the purpose of use, barter, or to be given away, as a beverage, without having a permit to sell the same, you will find him guilty upon the second count.”
The counsel of Standish requested the court to instruct the jury that “anyone in the lawful and bona fide possession of beer, may use it himself, or may give it away, without being guilty of a violation of the law, provided he does not give it away to evade any of the provisions of the prohibitory law.” Also that “the bona fide and honest giving away of intoxicating liquors by one who is lawfully in possession of the liquors is not a violation of the law.” These last instructions were refused, and nothing similar to them was given.
Upon the evidence introduced upon the trial, the instructions to the jury were erroneous and misleading. It appears that Standish was engaged in the boot-and-shoe business at Paola, in Miami county, in May, 1887, keeping a stock of boots and shoes to the amount of about seven thousand dollars. There was beer kept in the back room or wareroom of the store building, which was used by Standish himself, and was also given away to several persons. It also appears that one or two kegs of beer were purchased by two or three persons, who “chipped in” and sent for the beer. These persons were permitted to place the kegs of beer in the back room or wareroom of the store, and were also permitted to come and drink the same. There was no evidence showing or tending to show that Standish ever sold or bartered any beer or other intoxicating licpior at the place described in the indictment, or anywhere else, or that any other person ever sold or bartered any beer or other intoxicating liquor in his store or wareroom.
Any person in the lawful and bona fide possession of intoxicating liquor may use it as he sees fit; he may drink it, or give it away, or he may use it in any other lawful manner, or for any other proper purpose to which his inclinations may lead him. (The State v. Barrett, 27 Kas. 219.) The limitation is that a person in giving away intoxicating liquor shall not do so to evade the provisions of the prohibitory act: in other words, any shift or device adopted in selling or giving away such liquors, to evade the provisions of that act, is prohibited. (The State v. Nickerson, 30 Kas. 545.)
It seems to be admitted that Standish was the proprietor and keeper of the store and wareroom where the beer complained of was kept; and, therefore, under the instructions of the court, if he was in the lawful and bona fide possession of the beer in the store or wareroom and drank any portion of it himself, or gave away a glass or a bottle of it to a friend, the jury were required to return a verdict of guilty. This is not the law. If Standish directly or indirectly kept or maintained by himself, or with others; or if he aided, assisted, or abetted in keeping or maintaining any club room, or other place like a club room, or a place of some similar kind or character, in which intoxicating liquors were received and kept, for the purpose of use, gift, barter, or sale, as a beverage, or for distribution or division among the members of the club or association, he could be convicted therefor. (Rice v. The State, 3 Kas. 141; White v. The State, 20 Wis. 246; The State v. Gresham, 2 S. W. R. 223.)
The instructions in this case, however, were not sufficiently limited to embrace the offense attempted to be described in the second count of the indictment under the provisions of §16 of the prohibitory act. They allowed the jury to find Standish guilty, if he used the beer himself, or gave it away, although not done in violation of the statute, nor to evade any of the provisions thereof.
The judgment of the district court will be reversed, and the cause remanded for a new trial upon the second count of the indictment.
All the Justices concurring. | [
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Green, J.:
Dana Wayne Deal appeals from his jury trial conviction and sentence- for one count of second-degree murder in violation of K.S.A. 21-3402(b). Deal first argues that there was insufficient evidence to convict him of unintentional second-degree murder. During the oral arguments made by the parties before this court, the sufficiency of the evidence issue raised an ancillary question; If this court finds that the State failed to present, sufficient evidence to sustain a conviction for unintentional second-degree murder but finds sufficient evidence in the record to support a conviction for voluntary manslaughter, could this court remand for resentencing on voluntary manslaughter? We asked both parties to address this question. Both Deal and the State concluded in their letters, under Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), that if we found insufficient evidence for the jury to convict Deal of unintentional second-degree murder, we could remand to the trial court for resentencing on the lesser included offense of voluntary manslaughter.
The State, however, still maintained in its letter of additional authority that there was sufficient evidence for a jury to conclude that Deal’s actions were reckless and to convict him of unintentional second-degree murder. We agree with the State. The evidence in this case established that Deal killed the victim while beating him with a tire tool with the intent to severely injure him. When reviewing all of the evidence in the light most favorable to the State, we are convinced that the jury could have found beyond a reasonable doubt that Deal recklessly killed the victim under circumstances manifesting extreme indifference to the value of human life. As a result, there was sufficient evidence to convict Deal of unintentional second-degree murder under K.S.A. 21-3402(b). Because we have determined, based on the foregoing analysis, that there was sufficient evidence for the jury to convict Deal of unintentional second-degree murder, we need not further address the arguments made by Deal and the State in their letters of additional authority.
In addition, Deals asserts the following arguments on appeal: that the trial court erred in instructing the jury on “no duty to retreat”; that the trial court erred in admitting prior crimes evidence; that the trial court erred in denying him a continuance on his motions for a new trial; that the trial court violated his constitutional rights by sentencing him to the aggravated sentence in the applicable sentencing grid box; and that the trial court violated his constitutional rights in using his criminal history to increase his sentence. Finding no reversible error, we affirm.
Deal’s conviction in this case was based on events that occurred on the night of July 8, 2005, and the early morning of July 9, 2005. A little after 11 p.m. on July 8, 2005, Ric Montoya knocked on Karla Halstead’s door and asked if Donnie Irving was there. Halstead explained to Montoya that Irving did not live there. Irving actually lived next door to Halstead. Nevertheless, Halstead noticed that Montoya was intoxicated and was unable to understand what she was telling him. Halstead eventually closed the door and left Montoya standing on her front porch.
Around midnight, Halstead looked out of her kitchen window and saw Montoya and another man wearing dark clothes coming out of the side door of Irving’s house. Although Halstead knew Montoya, she did not recognize the other man. Halstead saw the unidentified man walk across the street and throw an object over a 10- to 12-foot dike on the north side of the street. Halstead then saw the unidentified man and Montoya get into a white pickup truck and drive away with the headlights off.
At around 12:43 a.m., a woman called the police and stated that she had just been inside Irving’s house and had seen him on the floor. When Officer Gary Bortz arrived at Irving’s house, the side door was open. Bortz went inside and saw Irving lying on the floor. Irving was unresponsive, and it appeared that he had lost a large amount of blood. When emergency medical services personnel arrived, they declared Irving to be in very critical condition and transported him to the hospital. Irving was later declared dead.
Officer Kurt Weber, who was helping with the investigation of Irving’s homicide, learned that Montoya had been with Deal around the time the incident occurred. When an officer later contacted Deal, Deal agreed to come into the police station to talk with police. Weber and another officer interviewed Deal on the afternoon of July 9, 2005. During the first part of his interview, Deal denied being at Irving’s house on the night in question. Nevertheless, after a break in the interview, the officers confronted Deal with the fact that his truck had been seen at Irving’s house, that a neighbor had identified Montoya, and that they knew he had been with Montoya that night. Deal then admitted that he had been at Irving’s house with Montoya.
Deal told the officers that while he and Montoya were driving around on the night of July 8, 2005, Montoya told him about an incident that occurred between Deal’s girlfriend, Michelle Morris, and Irving. Morris had alleged that Irving had kept her at his residence for 3 days during which time Irving had drugged her and had sexually abused her. Deal said that he wanted to get Irving’s side of the story, and he and Montoya drove to Irving’s house. In his written statement, however, Deal wrote that Montoya had said, “[L]et’s go over there and tell him to cool his shit.”
According to Deal, Montoya was drunk and initially went to the wrong house. Deal knocked on Irving’s door. When Irving an swered the door, Deal confronted Irving about the alleged incident with Morris. Deal and Irving argued, and Irving told Deal to “get the fuck out” of his house. Deal told the officers that at that point, Irving picked up a tire tool, which was a metal bar, and swung it at him twice. According to Deal, he was able to block the blows with his arms. Deal pointed to the area on his arms where he blocked Irving’s blows, but Weber did not see any injuries, scrapes, or red marks.
Deal told the officers that he kicked Irving in the groin and was able to get the tire tool away from Irving. Deal stated that he struck Irving twice with the tire tool: once in the head and once in the left shoulder area. In his written statement, however, Deal indicated that he struck Irving once in the front right area of his head and another time in his right head and neck area. During his interview, Deal further stated that when Irving fell to the floor, he kicked him “in the ass.” According to Deal, Montoya came into the room while he was kicking Irving. Deal'stated that Montoya “poked and sliced” at Irving with a fillet knife that belonged to Deal. Deal normally kept the fillet knife above the sun visor in his truck, and Montoya had the knife when he came into Irving’s house. Montoya also kicked Irving several times.
Deal told the officers that when he and Montoya tried to leave Irving’s house, the front door would not open. Montoya then lacked open the side door, and he and Deal left Irving’s house. According to Deal, Montoya handed him the knife he had used on Irving. Deal threw the knife and tire tool over the dike to the north of Irving’s house. Deal admitted that when he and Montoya drove away from Irving’s house, he did not turn on his headlights until he got down the street.
Deal told the officers that he knew that Irving was hurt but that he did not mean to kill him. Deal stated that no matter what Irving had done, Irving did not deserve to die. A tire tool, which was a bar approximately 18 to 20 inches long, and a fillet knife were later found on the north side of the dike near Irving’s house. In addition, officers found a variety of tools, including tire-changing and jack equipment, in Deal’s truck.
On July 10, 2005, Deal agreed to do a “walk-through” interview at Irving’s house. Once during the interview, Deal referred to the metal bar used during the incident as “my bar.” Deal told the officers that his emotions got out of hand when Irving showed disrespect towards his girlfriend. Deal stated that he was not thinking during the incident, that he felt he was defending himself when he hit Irving the first time, and that he struck out of anger when he hit Irving the second time. Deal told the officers that he knew that Irving carried knives and guns and that he believed that Irving might have kept a gun or knife in the corner of the room. During the “walk-through” interview, one of the officers noticed a small red mark on Deal’s forearm. Deal flinched when the officer touched it.
Deal was again interviewed on July 11, 2005, at the sheriff s department. During that interview, Deal mentioned that Irving had shown him a squirt gun. On February 15, 2006, a videotaped deposition was taken of Deal. During the deposition, Deal went into great detail about a .38 caliber gun that Irving possessed. Moreover, Deal described a modified paintball gun that Irving owned that shot out steel bullets. This was the first time that Deal had mentioned the .38 caliber gun or the modified paintball gun.
Dr. Lawrence Czamecki conducted the autopsy on Irving’s body. Czamecki testified that Irving had blunt force injuries to the right and left side of his head; to his chest, abdomen, and shoulder area; and to his legs. According to Czamecki, Irving sustained a depressed fracture to his head and Irving’s skull had been pushed into his brain. Czamecki noted that Irving had bleeding on the brain surface and within the brain tissue. Czamecki further testified that Irving sustained four rib fractures and breaks in each forearm. According to Czamecki, Irving also had lacerations, abrasions, and contusions on his arms, hands, and legs. Czamecki testified that Irving had a 3/8-inch incision on his right leg but that this injury was not enough to kill Irving. Czamecld determined that the cause of Irving’s death was multiple blunt and shaip force injuries. Nevertheless, Czamecld testified that Irving’s blunt force injuries to his head were enough to kill him.
Deal was initially charged with first-degree premeditated murder in violation of K.S.A. 21-3401(a) or, alternatively, first-degree felony murder in violation of K.S.A. 21-3401(b). Before the conclusion of the preliminary hearing, Deal entered into an agreement with the State to reduce the charge to second-degree “unintentional but recldess” murder in violation of K.S.A. 21-3402(b). Under the agreement, Deal would be allowed to take that charge to trial in exchange for his testimony against Montoya. The trial court instructed the jury on voluntary manslaughter and involuntary manslaughter. The jury ultimately convicted Deal of the second-degree murder charge. Deal was sentenced to 168 months in prison, which represented the aggravated number in the appropriate sentencing grid box.
Sufficiency of the Evidence
First, Deal argues that the State failed to present sufficient evidence to convict him of unintentional second-degree murder under K.S.A. 21-3402(b) because there was no evidence that he acted unintentionally but recklessly. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
In distinguishing unintentional second-degree murder, or depraved heart second-degree murder, from involuntary manslaughter, our Supreme Court has stated:
“Depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness diat can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a kind of culpability that differs in degree but not in land from the ordinary recklessness required for manslaughter.” (Emphasis added.) State v. Robinson, 261 Kan. 865, Syl. ¶ 5, 934 P.2d 38 (1997).
Deal contends that all of the evidence presented by the State showed that he had acted intentionally, and not recklessly, in beating Irving. Deal maintains that because neither the State nor the defense presented any evidence that he acted recklessly, this court must vacate his conviction.
Deal relies on several cases where our Supreme Court has held that the evidence did not warrant a lesser included offense instruction on depraved heart second-degree murder. See State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004); State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999); State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006); State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997); State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996).
In attempting to analogize those cases to his case, Deal makes the following conditional argument:
“If the evidence in this case, which is factually indistinguishable from the situations in Cavaness, Jones, Bailey, Clark, and Pierce, would be insufficient to warrant an instruction on unintentional second degree murder, then it would be disingenuous to find that the evidence is sufficient to support a conviction for that same crime.”
Deal then argues as follows:
“If this Court would have upheld the denial of Mr. Deal’s hypothetical request for a lesser included offense instruction because no reasonable jury could find him guilty of unintentional second degree murder based on the evidence presented at trial, then it would be incorrect to allow a conviction for that crime in the present case.”
Were the cited cases similar to the present case, we might find some merit in Deal’s argument. The five cases relied upon do not, however, persuade us that Deal’s contention is correct.
For instance, the cases of Pierce, Bailey, and Clark all involved a person intentionally firing a gun at another individual. Deal ignores what the Bailey court held concerning situations where one person' points and fires a gun at another: “We find Pierce controlling in the present case. Bailey cites Pierce but ignores its clear message — a defendant’s actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim.” 263 Kan. at 691. Here, Deal did not use a gun during the altercation.
Next, Jones involved a manual strangulation which would have required the defendant to apply at least 4 to 6 minutes of continued pressure to the victim’s throat in order to kill her. In determining that the defendant’s conduct of strangling the victim to death was comparable to a defendant’s actions in pointing a gun at a victim and pulling the trigger, our Supreme Court in Jones stated:
“All the other evidence excludes a theory of reckless second-degree murder. Bagby died when Jones used his hands to grip her neck hard enough to bréale pliable bone and cartilage structures and long enough — 4 to 6 minutes — to fatally deprive her of oxygen. His actions were intentional and not reckless. Jones’ self-serving statement dos not support a reckless second-degree murder instruction. His conduct is indistinguishable from a defendant’s action in pointing a gun at a victim and pulling the trigger, which is intentional rather than reckless conduct. [Citation omitted.]” (Emphasis added.) 267 Kan. at 633.
Finally, Cavaness involved a prolonged beating and torture of the victim with the defendant participating in a discussion that they could not let the victim leave for fear of retaliation. At some point during the beating, the group decided that the victim needed to be killed. Quite different from Cavaness, the evidence here failed to show a similar discussion taking place between Deal and Montoya. Moreover, all of the evidence in this case was that the beating occurred right after the initial attack by Irving and in the same room. This is unlike Cavaness where the victim was carried to a different place after he had been rendered unconscious, was beaten further, bound, and then hit again until the stated goal of getting rid of the victim was accomplished.
In pointing out that the victim’s death was intentional, our Supreme Court in Cavaness stated:
“By his own admission, Cavaness struck the victim, several times, called the neighbor for something to use to tie up the victim, and discussed with the other men the fact that they could not let the victim leave for fear of retaliation. The evidence demonstrated that Cavaness participated in the acts which resulted in Wheeler’s death and did so intentionally. Even though Cavaness’ testimony provided evidence that he did not intend to kill Wheeler by hitting him with a baseball bat, none of the evidence, even the defendant’s own testimony, indicated recldess rather than intentional conduct. [Citation omitted.]” (Emphasis added.) 278 Kan. at 477.
As a result, our Supreme Court concluded that the trial court did not err in refusing to give an instruction on unintentional second-degree murder.
The facts in this case are different from those in Cavaness, Jones, Bailey, Clark, and Pierce. Moreover, those cases presented no factual basis on which a jury might have determined that the conduct of the various defendants was reckless rather than intentional conduct. As a result, Cavaness, Jones, Bailey, Clark, and Pierce are simply not analogous to this case.
The circumstances under which a defendant can commit depraved heart second-degree murder has been outlined by Professor Emil Tonkovich in The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 78 (1992):
“ ‘Depraved heart murder includes extremely reckless killings and killings resulting from actions which were intended to inflict serious bodily injury. Examples of depraved heart murder include: (1) killing a child while target shooting at school windows during school hours; and (2) killing a person while beating him with a baseball bat ivith intent to severely injure him.’ 41 Kan. L. Rev., Crim. Proc. Ed. at 78.” (Emphasis added.) 261 Kan. at 880.
Professor Tonkovich further noted that depraved heart second-degree murder is fundamentally similar to felony murder. In felony-murder cases, the commission of the underlying felony supplies the extreme recklessness required for criminal liability. Professor Tonkovich noted that the extremely reckless conduct in the above two illustrations is at least as dangerous to human life as most felony-murder situations.
The facts of this case fit squarely within the second highlighted illustration. Although Deal’s statements indicated that he did not intend to kill Irving, his use of a tire tool to brutally beat Irving establishes that he had the intent to severely injure him. Deal’s conduct of striking Irving in the head (a vital area of a person’s body) with a tire tool after having taken it away from Irving showed that Deal had intended to severely injure Irving. Hence, Deal’s actions furnished the extreme recklessness towards human life required for the crime of unintentional second-degree murder.
A similar factual scenario was present in Robinson, 261 Kan. 865, where our Supreme Court cited with approval the earlier quoted language from Professor Tonkovich. In Robinson, the defendant (Robinson) was convicted of depraved heart second-degree murder after he killed Richard Crowley, the initial aggressor in the incident, by striking him in the head with a golf club. The incident began when Crowley approached Jeremy Hendrickson and his three friends, one of whom was Robinson, in a park about threats that Hendrickson had made against Crowleys sons. As the confrontation became heated, Crowley hit one of the boys in the face. Crowley eventually got a metal baseball bat out of his truck and chased the boys with it, swinging at them when they got close.
While they were running away from Crowley, each boy grabbed a golf club out of a car in the park. The boys surrounded Crowley and taunted him by calling him names and swinging their clubs at him. Crowley was able to break free from the boys, but one of the boys, Tony Surber, hit Crowley in the back with a golf club. When Surber tripped and fell, Crowley hit him twice with the bat. Hendrickson then struck Crowley twice in the back or in the ribs with a golf club. Surber was able to roll away from Crowley and began to get off the ground. At that time, Robinson fatally struck Crowley in the head with his golf club. Robinson testified that he was not trying to hit Crowley in the head but was trying to hit him in the arms in order to make him stop hitting Surber with the bat. Robinson further testified that he could not remember whether his eyes were open or closed when he hit Crowley.
On appeal, Robinson argued that the evidence was insufficient to convict him of depraved heart second-degree murder for two reasons: (1) because his “extreme indifference” was directed at one specific person, Crowley, and not directed at human life in general; and (2) because he kLÜed Crowley in an imperfect right to self-defense situation. In rejecting the defendant’s first argument, our Supreme Court held that the elements of depraved heart murder could be met if the defendant manifested an extreme indifference to the value of one specific human life. Our Supreme Court held that the evidence, which indicated that Robinson swung a golf club at Crowley with great force, intending to hit Crowley, was sufficient for the jury to find that Robinson recklessly killed a person while manifesting an extreme indifference to the value of one specific human life. 261 Kan. at 880-81.
Moreover, determining that Robinson’s second sufficiency of the evidence argument lacked merit, our Supreme Court stated:
‘Viewing the evidence in the light most favorable to the prosecution, Robinson struck Crowley in the head with the golf club, even though his friend, whom Crowley had struck with a bat, was getting up off of the ground and was no longer in danger. While Robinson testified that he did not aim at any particular part of Crowley’s body, die State called a medical expert to the stand who testified that the golf club hit Crowley’s head with direct force and was not deflected off any other part of Crowley’s body. The jury could have inferred from this testimony that Robinson intentionally aimed for Crowley’s head. Even if the jury could not find such intent, the juiy could have found that blindly swinging a golf club at a person with great force constitutes extreme recklessness ‘manifesting an extreme indifference to the value of human life.’ ” 261 Kan. at 881.
As a result, our Supreme Court determined that there was sufficient evidence to convict Robinson of depraved heart second-degree murder.
Deal attempts to distinguish Robinson by pointing out that the defendant in Robinson argued that “manifesting extreme indifference to the value of human life” refers to human life in general, not to one specific human life. Deal maintains that it does not appear that the defendant in Robinson raised the issue of whether an intentional blow that results in an unintentional death can support a conviction for unintentional second-degree murder. Nevertheless, this is a distinction without a difference. With his second sufficiency of the evidence argument (imperfect right to self-defense), the defendant in Robinson directly challenged whether, based on the facts of the killing, the evidence was sufficient to convict him of unintentional second-degree murder. See K.S.A. 21-3402(b) (This subsection covers intentional killings that result from an unreasonable but honest belief that deadly force was justified in self-defense.).
Deal also attempts to distinguish Robinson from this case by arguing that there was at least some evidence in Robinson to show that the defendant acted recklessly in striking the victim with the golf club. Deal points to Robinson’s testimony that he was trying to hit the victim in the arms and not in the head and that he could not remember whether his eyes were open when he hit the victim. Nevertheless, our Supreme Court in Robinson did not look to only this evidence in determining that there was sufficient evidence to convict Robinson of unintentional second-degree murder. Rather, our Supreme Court determined that the jury could have inferred from the evidence “that Robinson intentionally aimed for Crowley’s head.” 261 Kan. at 881. Our Supreme Court then went on to state that “[e]ven if the jury did not find such intent, the jury could have found that blindly swinging a golf club at a person with great force constitutes extreme recklessness ‘manifesting an extreme indifference to the value of human life.’ ” 261 Kan. at 881.
Here, as in Robinson, the jury could have determined from the evidence that Deal intentionally aimed for Irving’s head when he struck Irving with the tire tool but did not intend to kill him. The jury could have further determined that Deal was attempting to defend himself from Irving’s attack when Deal was able to gain control of the tire tool and hit Irving in the head. In rejecting the defendant’s sufficiency of the evidence argument in Robinson, our Supreme Court stated:
“The evidence was sufficient in this case for the jury to find that Robinson recklessly killed a person while manifesting an extreme indifference to the value of one specific human life — Crowley s life. The evidence indicated that Robinson swung a golf club at Crowley with great force, intending to hit Crowley.” (Emphasis added.) 261 Kan. at 881.
Similar to Robinson, the evidence in this case indicated that Deal swung the tire tool at Irving with great force, intending to hit Irving. The amount of force used by Deal and the number of times that Deal hit Irving showed that Deal recklessly killed Irving “under circumstances manifesting extreme indifference to the value of human life.”
After reviewing all of the evidence in the light most favorable to the State, this court is convinced that a rational jury could have found Deal guilty of unintentional second-degree murder beyond a reasonable doubt.
“No Duty to Retreat” Instruction
Next, Deal contends that the trial court erred in instructing the jury on the “no duty to retreat” rule. When a defendant objects to instructions, an appellate court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
At the jury instructions conference, the State requested the trial court to instruct the juiy on the “no duty to retreat” rule. Deal objected to the instruction and argued that there was no evidence indicating that he was the initial aggressor in the incident. The trial court granted the State’s request for the “no duty to retreat” instruction. The trial court noted that the evidence that Irving had told Deal to “get the fuck out” of his house and that Deal had not left justified the instruction.
The jury was thus instructed on the “no duty to retreat” rule as follows: “When on his home ground, a person is not required to retreat from an aggressor, but may stand his ground and use such force to defend himself as he believes, and a reasonable person would believe, necessary.” This instruction was in accord with PIK Crim. 3d 54.17-A (2001 Supp.). The Notes on Use for this pattern instruction recognize that such an instruction is to be given only in rare situations where the defendant is attacked on his or her home ground:
“The ‘no duty to retreat’ instruction is required only in infrequent factual situations, such as that found in State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988), with such elements as a nonaggressor defendant being followed to and menaced on home ground. State v. Ricks, 257 Kan. 435, 894 P.2d 191 (1995); State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999).” See PIK Crim. 3d 54.17-A (2001 Supp.).
It should be pointed out that in 2006, the Kansas Legislature enacted K.S.A. 21-3218, which seems to modify the circumstances under which the “no duty to retreat” rule is applicable in Kansas. K.S.A. 21-3218(a), which took effect May 25, 2006, states:
“A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duly to retreat and has the right to stand such person’s ground and meet force with force.”
This “no duty to retreat” rule was incorporated in the 2006 supplement to PIK Crim. 3d 54.17-A. The Notes on Use to PIK Crim. 3d 54.17-A state that this “no duty to retreat” instruction is now appropriate when there is evidence that the attacker first used force against the defendant.
It is apparent that to the extent that K.S.A. 21-3218 modified the “no duty to retreat” rule in Kansas, the statute would be a substantive change and would have only prospective application to offenses committed after May 25, 2006. See State v. Shore, No. 97,833, unpublished opinion filed December 21, 2007 (holding that to extent 2006 amendment to K.S.A. 21-3211 expanded circumstances in which lethal force would be justified by self-defense, amendment would be substantive and would apply only prospectively to offense committed after its effective date); see also Smiley v. State, 966 So. 2d 330 (Fla. 2007) (finding that statutory change in self-defense duty to retreat to be given prospective application under constitutional mandate); People v. Myers, 35 Ill. 2d 311, 220 N.E.2d 297 (1966), cert. denied 385 U.S. 1019 (1967) (concluding district court did not err in failing to give insanity instruction based upon newly promulgated statute in case in which crime was committed before effective date of new statute).
Deal maintains that the instant case does not fit within the infrequent factual situation where the “no duty to retreat” instruction, as contained in PIK Crim. 3d 54.17-A (2001 Supp.), should be given. Deal distinguishes this case from State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988). There, our Supreme Court reversed the defendant’s conviction and remanded for a new trial after holding that a no duty to retreat instruction was required. In that case, two aggressors followed the defendant to his home. While the defendant was parked in his driveway, the aggressors approached the defendant, with one of them waving an iron pipe. Based on the trial court’s finding, the aggressors’ attack was not provoked by the defendant. The defendant shot and killed one of the aggressors. The State had built its case around the theoiy that the defendant had a duty to retreat, such as by driving to the police station. Defense counsel, however, was not allowed to argue that the defendant had no duty to retreat from his driveway.
Explaining its decision in Scobee, our Supreme Court in Ricks, 257 Kan. at 437, stated: “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 nonaggressor defendant being followed to and menaced on home ground.” In Ricks, the defendant was approached in a public parking lot by two individuals. One of the individuals drove up beside the defendant’s car, and a conversation ensued. Before approaching the defendant, one of the individuals had said that he would like to beat the defendant’s “ ‘ass.’ ” The defendant took out his gun and shot each of the individuals three times. Our Supreme Court held that a “no duty to retreat” instruction was not required under the facts of that case. 257 Kan. at 437-38.
The determination in Ricks that the “no duty to retreat” instruction was limited to infrequent factual situations was cited and followed in State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999). In that case, the defendant was at a drinking party at his sister’s home when he got into an argument with Schmidt. The defendant and Schmidt stepped outside and became involved in a shoving and pushing match. During the altercation, the defendant pulled out a gun and shot Schmidt four times. The defendant’s testimony at trial was that he had been told that Schmidt was “talking shit on me . . . said he was going to fuck me up.” 267 Kan. at 102. Although there was testimony to the contrary from other witnesses, the defendant testified that Schmidt was pushing him and hitting him on the head with a liquor bottle and that when Schmidt came after him with the liquor bottle, he shot Schmidt. The defendant further testified that Schmidt continued to attack him even after being shot. Determining that the facts were distinguishable from Scobee and more similar to Ricks, our Supreme Court upheld the trial court’s denial of a requested “no duty to retreat” jury instruction. Saleem, 267 Kan. at 115.
Here, it is undisputed that Deal and Montoya pursued Irving on his home ground. The record seems unclear, however, as to whether Deal was the initial aggressor for puiposes of the “no duty to retreat” rule. Deal told the police that when he went to Irving’s home, he and Irving argued, and Irving told him to “get the fuck out” of his house. Deal told the officers that at that point, Irving picked up a tire tool, which was a metal bar, and swung it at him twice.
In determining that the “no duty to retreat” instruction would be given to the jury, the trial court focused on the fact that Irving told Deal to “get the fuck out” of his house but that Deal remained there. Seemingly, Irving might have felt threatened by Deal coming to his home, starting an argument with him, and refusing to leave. Nevertheless, those facts do not rise to the level of those in Scobee where the aggressors approached the defendant in his driveway while one of the aggressors was waving an iron pipe in the air. Here, there were no deadly weapons brandished by Deal when the incident began. When Irving began hitting Deal, Irving had control of the only weapon involved in the incident at that time. There was no other evidence that Deal had attempted to hit or otherwise injure Irving at that point in the confrontation. Moreover, Montoya had not yet become involved in the situation. Although the “no duty to retreat” instruction properly stated the law, the facts of this case did not warrant such an instruction.
Nevertheless, the fact that the trial court gave an instruction that might have been unwarranted in a given case does not automatically require reversal. Our Supreme Court has held: “ ' “Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.” ’ [Citations omitted.]” State v. Holbrook, 261 Kan. 635, 636-37, 932 P.2d 958 (1997).
Deal contends that the “no duty to retreat” instruction could have misled the jury and caused it to believe that while Irving was justified in attacking Deal, Deal had no right to fight back in self-defense.
Nevertheless, this was not the manner in which the juiy was instructed. The instruction on the “no duty to retreat” rule was an accurate statement of the law. Moreover, the jury was also accurately instructed on Deal’s self-defense theory in accordance with K.S.A. 21-3211 (Furse 1995) as follows:
“The defendant raises self defense as a defense. 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.”
The defendant has claimed his conduct was justified as self-defense.
“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. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.”
Contrary to Deal’s argument, there was nothing to mislead the jury that Deal did not have the right to fight back in self-defense. Moreover, the State never argued to the jury that Deal did not have a right to defend himself from Irving’s blows.
The problem that Deal faces on this issue is that the evidence was overwhelming that his brutal beating of Irving was not done in self-defense. While arguably Deal’s first blow to Irving might have been done in self-defense, the rest of the blows to Irving could not be justified as such. When Deal was able to wrestle the tire tool away from Irving, he had control of the only weapon that had been used on him. Deal himself admitted to the officers that he felt he was defending himself when he hit Irving the first time and that he struck out of anger when he hit Irving the second time. Moreover, there was no evidence that Deal had suffered major injury during the incident sufficient to warrant the brutal beating that Irving received.
Based on the record in this case, we conclude that the trial court’s decision to give an instruction on the “no duty to retreat” rule did not prejudice Deal’s substantial rights and that substantial justice was done in this case.
Prior Crimes Evidence
Next, Deal argues that the trial court erred in admitting evidence of his prior crimes. Before trial, Deal filed a motion in limine to prevent the State from introducing evidence of his reputation for criminal activity, his prior crimes of violence and dishonesty, and his abuse of drugs and alcohol without first obtaining permission from the trial court outside the presence of the jury. The trial court granted Deal’s motion in limine. The trial court held that Deal’s prior drug activity occurring several years before the trial was not relevant. Moreover, the trial court ruled that the State was prohibited from offering any character evidence regarding Deal and from attacking Deal’s credibility until those matters were put into issue by Deal.
At trial, the videotapes of Deal’s three police interviews were played for the jury. The three interviews when played for the jury totaled just over 2Vz hours. Apparently, one of the videotapes contained a reference to an arrest of Deal in California and another videotape contained a reference to Deal’s previous methamphetamine use. Deal neither requested redaction of the videotapes to eliminate those references nor did he make a contemporaneous objection to the prior crimes evidence when the videotapes were played to the jury.
After the State had presented its case-in-chief to the jury and Deal had unsuccessfully moved for a judgment of acquittal, the trial court pointed out that the statements in the videotapes had violated the order in limine. The trial judge stated: “There were at least two occasions that I could see in the various interviews that came in that probably were a violation of that order, yet no contemporaneous objection was made. I just wanted to raise that issue with the parties.” Deal’s defense counsel responded as follows:
“Frankly, I had forgotten about the comment about Mr. Deal’s prior offense, that being in tins, and there were some other areas about drug usage and maybe about some arguments that he had with Miss Morris and their prior history. I guess at some point I’d malee a decision, I’ve got video tape of my client sitting there telling basically his side of the story and I guess I figure I have to take a little bad with the good that I may be getting.
“I did not make the objection. If I made it, we would have to decide how to edit. I decided not to bring that up, not draw attention to it. I felt my client being on these videos, that’s almost as good as him testifying, and that he could make a choice whether he wants to testify later or not.”
On appeal, Deal now argues that the introduction of the prior crimes evidence constituted reversible error. Deal argues that the prior crimes evidence had no tendency to prove any material fact and was prejudicial to him because it affected his credibility.
Failure to Object to Admission of Evidence
Deal concedes that when the other crimes evidence was presented to the jury, he failed to make a contemporaneous objection to the admission of the evidence. To preserve an issue relating to the admissibility of evidence for appeal, a party must malee a timely and specific objection. K.S.A. 60-404. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008) (where defendant objected to evidence only on hearsay grounds, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60-455); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (where defendant failed to object at trial to the admission of evidence under K.S.A. 60-455, he was precluded from raising the issue on appeal); State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (To preserve a K.S.A. 60-455 issue for appeal, a defendant must object on that ground at trial.). Deal, by failing to object, waived any challenge to the trial court’s admission of the other crimes evidence. As a result, consideration of Deal’s argument concerning the erroneous admission of evidence is precluded by his failure to make a contemporaneous objection.
Failure to Request Redaction of Videotape
Moreover, Deal’s failure to object to the admissibility of the complained-of statements before the tape was played to the juiy at trial precludes consideration of this issue on appeal. Deal never requested that the State redact the statements from the videotape or notified the trial court that the videotape contained statements violating the trial court’s order in limine.
In State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), the defendant argued that the videotape of his interrogation, which was played to the jury at trial, should have been redacted to remove repeated comments by the detective regarding the defendant’s lack of credibility or veracity. Determining that the issue had not been properly preserved for appeal, our Supreme Court stated:
“An appeal challenging a district court judge’s failure to redact an interrogation videotape to remove references to a criminal defendant’s lack of veracity requires preservation of the issue at trial. Without a contemporaneous objection, an appellate court cannot assume that the playing of an unredacted interrogation videotape for a jury was something the defense wanted to avoid.” 282 Kan. 201, Syl. ¶ 5.
Therefore, our Supreme Court declined to address the merits of the defendant’s argument.
Our Supreme Court’s holding in Anthony is on point here. When the videotape was played to the jury, Deal’s trial counsel conceded that he made the tactical choice not to object to the references to Deal’s prior crimes. Deal may not now claim on appeal that the tapes should have been redacted. Because Deal did not object to the admissibility of the prior crimes evidence in the videotapes before the tapes were played to the jury at trial, he failed to preserve this issue for appeal.
Finally, Deal’s actions in this matter are akin to the doctrine of invited error. For example, defense counsel stated that the videotape interviews would allow Deal to tell “his side of the story” to the jury without being subjected to cross-examination by the State. Because defense counsel believed that this would be good trial strategy, the defense counsel did not object to the previous indiscretions that Deal had admitted to during the interviews. Defense counsel said, “I decided not to bring that up, not draw attention to it. I felt my client being on these videos, that’s almost as good as him testifying . . . A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004). Because Deal actively contributed to what he now maintains was trial court error, we determine that his argument fails.
Denial of Motion for Continuance
Next, Deal contends that the trial court erred in denying him a continuance of the hearing on his motion for a new trial. A trial court’s refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. See State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007).
After the guilty verdict was rendered by the jury in this case, Deal’s trial counsel moved for a judgment of acquittal or, alternatively, a new trial. Deal argued that the evidence was insufficient to convict him of second-degree reckless murder, that the trial court erred in instructing the jury on the duty to retreat, and that he was denied a fair trial based on the prosecutor’s statements (to which Deal objected) during closing argument. Deal later filed a pro se motion for a new trial and for appointment of new counsel. Deal alleged that his trial counsel had been ineffective in cross-examining the State’s witnesses, in failing to call witnesses in Deal’s favor, in not objecting to his videotaped interviews being played to the jury, and in failing to object to certain questions that the State asked witnesses at trial.
After appointing new counsel to represent Deal in his motion for a new trial, the trial court conducted a hearing on the matter. At the hearing, Deal’s new counsel requested a continuance of the matter in order to give him time to obtain a full transcript of the jury trial. Deal’s counsel argued that he was at a great disadvantage not having access to the transcript and not being able to point to specific errors that occurred. Defense counsel told the trial court that he had talked to the court reporter and that the trial transcript could be completed within a few weeks.
The trial court denied Deal’s request for a continuance. Concerning Deal’s sufficiency of the evidence argument, the trial judge noted that it had previously made findings of fact on the record when it denied Deal’s motion for a judgment of acquittal. The trial judge stated that Deal’s motion for a new trial contained general allegations and that “having been [the] judge in the trial, I don’t believe that there is merit to them even with review of the transcript.” Moreover, the trial judge stated that Deal’s sufficiency of the evidence argument was an issue that could be raised on appeal.
Sixth Amendment Right to Counsel
On appeal, Deal maintains that the trial court’s decision interfered with his right to counsel under the Sixth Amendment to the United States Constitution and, therefore, the trial court abused its discretion in denying his request for a continuance. To support his argument, Deal cites State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980). In Andrews, our Supreme Court stated that “an indigent defendant has a right to appointed counsel in perfecting his appeal, including the right to a trial transcript and the right to file an appeal without a filing fee. [Citation omitted.]” 228 Kan. at 372.
Essentially, Deal seeks to extend the Sixth Amendment right to appellate counsel outlined in Andrews so that a defendant arguing a motion for new trial (that includes evidentiary and ineffective assistance of counsel issues) has the right to a trial transcript. To illustrate, Deal argues that “an indigent defendant’s right to appointed counsel in perfecting an appeal includes the right to a trial transcript.” Deal attempts to expand the scope of that premise, which expresses an indigent defendant’s right to appellate counsel in perfecting an appeal and the defendant’s right to a trial transcript, by setting up the following argument:
“Mr. Deal’s counsel could no more mount an effective argument at the hearing on the motion for new trial without the trial transcript than an appointed appellate attorney could mount an appeal without said transcripts.”
Although Deal characterizes his argument as an analogy, it reads like a partial syllogism or enthymeme.
Deal’s argument can be reconstructed as follows:
All appellate attorneys in perfecting appeals from indigent defendants are constitutionally entitled to trial transcripts [Major Premise];
Some trial attorneys (that are appointed after trial to handle post-trial motions for indigent defendants) are like appellate attorneys [Minor Premise];
Deal’s two-part deduction leaves out an essential statement: Therefore, all trial attorneys who are appointed after the trial to handle posttrial motions for indigent defendants should be entitled to trial transcripts [Conclusion].
Deal moves from considering part of the category of attorneys (appellate attorneys) that are constitutionally entitled to trial transcripts to broadening his claim to include all the attorneys mentioned in the conclusion. Deal’s argument commits the fallacy of the illicit minor term. This results “[w]hen the minor term is un distributed in the minor premise but distributed in the conclusion.” See Aldisert, Logic for Lawyers, p. 153 (3d ed. 1997). Here, the minor term [some trial attorneys who are appointed after trial to handle posttrial motions for indigent defendants] is not distributed in the minor premise, where it appears as the subject term in a particular affirmative categorical proposition. Logic for Lawyers, pp. 55-58.
Deal’s conclusion goes beyond what the premises warrant. His conclusion makes an assertion about all trial attorneys appointed after trial. Nevertheless, the premises make no such contention. They say nothing about all trial attorneys appointed after the trial. Moreover, we. acknowledge that for Deal to drive home his point, he would have to broaden his claim to all trial attorneys appointed after trial. Otherwise, Deal’s argument is drastically weakened if he is contending that only some trial attorneys appointed after trial should be entitled to trial transcripts. Based on the latter assertion that only some trial attorneys appointed after trial should be entitled to trial transcripts, Deal’s argument is enormously less appealing. For example, Deal would have to argue that his appointed trial counsel was a member of the class of some attorneys appointed after trial. Also, he would have to argue that his appointed trial counsel was a member of the class of those trial attorneys that should be entitled to trial transcripts. This second argument is very difficult. Under a particular affirmative proposition, there may be only one member of both classes. Logic for Lawyers, p. 57. Moreover, Deal’s appointed trial counsel may not have been that one member of both classes.
In short, under Deal’s argument as outlined in the partial syllogism, all trial attorneys appointed after trial to represent indigent defendants in posttrial matters would be entitled to trial transcripts. Consequently, Deal’s conclusion goes illicitly beyond what his premises warrant.
Further, if the constitutional right to a transcript were extended to trial attorneys appointed after the trial to handle posttrial motions for indigent defendants, a defendant could indefinitely extend posttrial litigation before the trial court. For example, a defendant could file a motion for new trial, obtain appointment of new coun sel, and then exercise his or her right to a transcript. At that point, the trial court would be forced to delay sentencing until the post-trial motion could be. resolved. The defendant who has been found guilty could be sitting in jail expending limited county resources for up to several months awaiting the completion of the trial transcript, his or her attorney s review of it, a hearing on his motion, and the trial court’s decision. Even in cases where a defendant’s issues obviously lack merit, the defendant would be able to unnecessarily delay sentencing by filing a posttrial motion and then obtaining appointment of new counsel. Moreover, in certain cases, the trial court would be unable to comply with the 45-day statutoiy time period for ruling on the motion for new trial. See K.S.A. 22-3501(2) (“A motion for a new trial shall be heard and determined by the court within 45 days from the date it is made.”). As a result, Deal’s argument does not afford a sound basis for expanding the constitutional right to a trial transcript to trial attorneys appointed after the trial to handle posttrial motions for indigent defendants.
This does not mean that an indigent defendant’s trial attorney appointed after the trial to handle a posttrial motion for the defendant should never be allowed to obtain a trial transcript. In certain cases, the trial court might properly continue the matter for the defendant’s attorney to obtain a trial transcript so that the defendant’s issues can be resolved. Nevertheless, as discussed below, the instant case does not present such a situation.
Trial Court’s Decision
As set forth previously, our review on this issue is limited to whether the trial court abused its discretion in denying Deal’s request for a continuance as to the hearing on his motions for a new trial. Here, in preparing to argue Deal’s motions for a new trial, Deal’s new defense counsel would have had available to him Deal’s videotaped interviews, the coroner’s report, and the court file, which included the jury instructions. In addition, Deal’s new defense counsel had obtained a copy of the closing arguments in the case. Deal’s new defense counsel could talk to Deal’s trial counsel, the prosecutor, the defendant, and the witnesses who had testified at trial or had been identified by Deal. Finally, the trial court had seen firsthand the conduct by Deal’s former counsel and the evidence presented to the jury at trial. Under such circumstances, there was no abuse of discretion in the trial court’s denial of Deal’s request for a continuance.
Issues in Deal’s Motions for a New Trial
Moreover, a review of the appellate record reveals that the issues in Deal’s motions for a new trial had either already been ruled upon by the trial court, had a sufficient record from which Deal’s new trial counsel could review and argue the issue on its merits, were conclusory allegations, or clearly lacked merit.
Specifically, in denying Deal’s motion for a judgment of acquittal, the trial court had already determined that the State had presented sufficient evidence for the jury to convict Deal of the second-degree murder charge. Also, during tire jury instructions conference, the trial court had rejected Deal’s argument that the jury should not be instructed on the “no duty to retreat” rule. Moreover, we have determined in the previous issues that Deal’s sufficiency of the evidence and jury instruction arguments lack merit.
In addition, at the hearing on Deal’s motions for a new trial, Deal’s counsel told the trial court that he had obtained a transcript of the closing arguments. Therefore, Deal’s counsel could review and argue Deal’s claims of prosecutorial misconduct.
Finally, many of Deal’s arguments on his ineffective assistance of counsel claim were conclusoiy allegations concerning his counsel’s performance. For example, Deal alleged that there were “other avenues of defense” that should have been litigated in his case. Nevertheless, Deal failed to specify what those other avenues of defense would have been and how they would have affected the outcome of the trial. Similarly, Deal alleges that he had a fist of witnesses that would have established reasonable doubt but that his trial counsel chose to call only one witness. Deal, however, never specified who those witnesses were, what their testimony would have been, and how they would have affected his defense. The trial court did not err in failing to continue the motion for a new trial hearing on such conclusoiy allegations.
Deal further claimed that he attempted to get his trial counsel to object to evidence when “[t]he State commented and/or implied and/or stated issues surrounding” Morris; when the State “made comments and/or implied and/or stated the defendant’s usage of drugs and/or alcohol”; and when the State “made comments and/ or implied and/or stated the defendants criminal activities, had prior charged and/or uncharged crime(s) of violence or otherwise.” Nevertheless, Deal never specifies the comments that were made by the State. Moreover, to the extent that those comments were made in closing arguments, Deal’s counsel had a copy of the closing arguments at the motion for a new trial hearing and argued the prosecutorial misconduct issue. As a result, no continuance was necessaiy on that issue.
The remainder of Deal’s arguments on his ineffective assistance of counsel claim clearly lacked merit and, therefore, did not warrant the trial court granting Deal’s motion for a continuance. Specifically, Deal claimed that his attorney was ineffective for failing to object to the videotaped interviews when his attorney knew that they were a direct violation of the order in limine. Deal seemed to contend that the entirety of the videotaped interviews would have been inadmissible. Nevertheless, the only statements that Deal has pointed to in those videotapes are his references to his prior crimes. Even if Deal’s attorney would have objected to those statements, the most he could have obtained would have been redaction of the prior crimes references.
Importantly, Deal’s references to his two prior crimes were momentary during the 2Vz hours of videotaped interviews. During the interviews, Deal explained that he had been arrested for grand theft auto after he bought a stolen automobile and tried to register it with the Department of Motor Vehicles. In addition, Deal admitted that he had used methamphetamine in the past but had not done so for 9 months since moving to Kansas. The prior crimes evidence was not of a similar nature and had no relation to the crime charged in this case. Although arguably the references to Deal’s prior crimes were inadmissible evidence, they had no bearing on the juiy’s verdict in this case.
Deal further alleged in his motion for a new trial that his trial counsel was ineffective because there were statements available indicating that Irving might have died from excessive blood loss in his right leg. Deal pointed to an officer’s incident reports and a probable cause affidavit in which statements were made that Irving had a large amount of blood around Irving’s right leg area. Nevertheless, testimony about the large amount of blood around Irving’s right leg had already been introduced to the jury at trial. The trial judge hearing the motions for a new trial had presided over Deal’s trial and was well aware of the evidence presented to the jury. Even with a trial transcript, Deal’s arguments would not have had any merit. Accordingly, there was no abuse of discretion in the trial court’s denial of Deal’s motion for a continuance.
Sentencing
Next, Deal contends that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it sentenced him to the aggravated sentence in the applicable sentencing grid box without proving the aggravating factors beyond a reasonable doubt to a jury.
Our Supreme Court recently rejected this same argument in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). Our Supreme Court held that because the Kansas Sentencing Guidelines Act (KSGA) provides the trial court with discretion to impose any sentence within the presumptive range, the prescribed statutory maximum sentence under Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), is the high number in the applicable sentencing grid box. Therefore, a sentence to any term, including an aggravated term, within the range in a KSGA presumptive grid box does not violate Cunningham or Apprendi. Johnson, 286 Kan. at 851. Moreover, because a sentence that falls within the applicable grid box is a presumptive sentence, appellate courts lack jurisdiction to consider a challenge to such sentence under K.S.A. 21-4721(c). Appellate courts lack jurisdiction even if the sentence is to the longest term in the presumptive grid box for a defendant’s convictions. Johnson, 286 Kan. at 851-52.
This court is duty bound to follow our Supreme Court precedent in Johnson, absent some indication the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). As a result, Deal’s argument on this issue fails.
Criminal History
Finally, Deal contends that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi, 530 U.S. 466, when it sentenced him to an increased sentence, based upon his criminal histoiy, without requiring that the State prove his criminal histoiy beyond a reasonable doubt to a juiy. Deal concedes that this issue is controlled by our Supreme Court’s decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Singleton, 33 Kan. App. 2d at 488. Because our Supreme Court has consistendy followed its position in Ivory, we are unable to grant relief to Deal on this issue.
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Lorentz, J.:
This is an appeal by George Angle, d/b/a Frontier Oil Company, from an order of the Sedgwick County District Court affirming the determination of the Board of Tax Appeals that drill bits, casing and cement used in the drilling of an oil well are subject to the payment of a sales tax and are not exempt items under K.S.A. 79-3606(n).
The evidence is essentially undisputed, but a recitation is helpful to understanding the nature of the problem.
George Angle, d/b/a Frontier Oil Company, appellant, is in the business of oil and gas drilling and production in the “Barton Arch” area of western Kansas. The drill bits, cement and casing involved in this appeal are all items used in the drilling of a well prior to production.
During the initial stage of drilling, a 12-14 inch milltooth bit is used to drill to a depth of 250 feet. On an average, this process takes about three hours. A new 1214-inch milltooth bit generally can be used for sixteen hours of drilling or about five to seven wells.
After the 250-foot hole is drilled, 8 %-inch pipe called casing is cemented into the hole. The primary purpose of this “surface” casing is to protect any fresh or ground water from contamination in compliance with Kansas Corporation Commission regulations. Neither the casing nor the cement is recoverable.
Following the setting of this “surface” casing, a 7 %-inch milltooth bit is attached to the drilling rig, inserted down to the bottom of the hole and drilling commences down to 1,700 feet. The average life of this bit is approximately 15 hours. Since it takes approximately 15 to 17 hours to reach a depth of 1,500 to 1,700 feet, the 7 %-inch milltooth bit is replaced with an “insert” or “button” bit. The 7 %-inch milltooth bit is discarded or, if it has any useful life left, may be used on another well. The insert or button bit contains teeth of extremely hard tungsten carbide and is used to drill the remaining distance to about 3,500 feet. This button bit will normally last 18 to 100 hours, depending on the formation being drilled through.
When any of the bits are worn out, they are normally scrapped and not sold or retipped, although occasionally an equipment company may try to rebuild them. In any event, once used up, they have no junk value to appellant.
Once the depth is reached, 4%-inch to 5%-inch casing is run down the hole. Approximately 200 sacks of cement are used to cement in this casing from the bottom (3,500 feet) up to about 2,800 feet. Approximately 500-550 sacks of cement are also used to cement in the casing from 1,200 feet to the surface. The purpose of cementing in the casing is due to the highly corrosive nature of the underground water which would otherwise eat through the casing and flood out the well. The casing between 1,200 feet and 2,800 feet is not cemented in, but, like that which is cemented in, is nonrecoverable.
Following an audit, appellant was assessed an additional use tax on casing which he had purchased without paying sales tax and subsequently used in the above-described drilling operation. Appellant objected to the assessment and additionally requested a refund of all retailers’ sales taxes paid on purchase of cement and drill bits used in the drilling operation, claiming that casing, cement and drill bits should be considered exempt from taxation under K.S.A. 79-3606(n) which, in describing sales of materials exempt from the tax sets out “all sales of tangible personal property which is consumed in the production, manufacture, processing, mining, drilling, refining or compounding of personal property.”
The issues to be decided are whether the decision of the Kansas Board of Tax Appeals, as affirmed by the Sedgwick County District Court, was arbitrary, capricious and not supported by substantial competent evidence, and whether the Board of Tax Appeals and the district court erred in finding that drill bits, casing and cement are not immediately consumed or dissipated in the drilling and production of oil and gas as contemplated by K.S.A. 79-3602(m) and therefore are not entitled to an exemption from taxation under K.S.A. 79-3606(n).
The standard of review to be applied by this court in reviewing a decision of the Board of Tax Appeals was restated recently in Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, 109, 673 P.2d 456 (1983), rev. denied 234 Kan. 1078 (1984), where the court said:
“Two rules are applicable:
“1. ‘A district court may not, on appeal, substitute its judgment for that of an' administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’ Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968).
“2. ‘The interpretation of a statute is a question of law and it is the function of a court to interpret a statute to give it the effect intended by the legislature.
“ ‘While the administrative interpretation of a statute should be given consideration and weight it does not follow that a court will adhere to the administrative ruling where the statute is clear and the administrative ruling is erroneous. The final construction of a statute rests within the courts.’ Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, Syl. ¶¶ 4 & 5, 518 P.2d 453 (1974).”
Appellant argues that the decision of the Board of Tax Appeals was not supported by substantial competent evidence and was arbitrary and capricious. Appellant’s contention is based on the circumstances surrounding the issue of an order nunc pro tunc, the contention being that the Board of Tax Appeals was confused.
The original order contained a clause as follows:
“The casing and cement become part of the drilling rig and are taxed as property. This is a capital expenditure for which depreciation is permitted.”
In the nunc pro tunc order, that phrase was deleted. Appel lants suggest the language was deleted because the casing and cement were not part of the drilling rig, and go on to assert that the record does not contain anything to support a contention that the cement and casing were a part of the drilling rig.
The mere use of nunc pro tunc order by the Board of Tax Appeals does not mean they were confused. The purpose of a nunc pro tunc order is not to change or alter a judgment previously rendered, but to enter now for then an order previously made. Mathey v. Mathey, 175 Kan. 446, Syl. ¶ 4, 264 P.2d 1058 (1953). See also 2 Am. Jur. 2d, Administrative Law § 521, p. 330, where it is stated:
“The proper function of a nunc pro tunc order is not to correct some affirmative action of the court which ought to have been taken, but its true purpose is to correct the record which has been made, so that it will truly record the action really had, but which through some inadvertence or mistake has not been truly recorded; in other words, it is an order to make the record speak the truth.”
The record, as pointed out by appellant, contained nothing to support a finding that the cement and casing were a part of the oil rig. The record does disclose that the Board found the cement and casing not subject to the exemption, and the order nunc pro tunc merely corrects the Board’s findings by deleting that which was not found. As such, it does not rise to arbitrariness or capriciousness, nor is the finding of the Board of Tax Appeals unsupported by the evidence.
Since the evidence is clear that the casing and cement become part of the well itself, and since the evidence supports the Board’s finding that a production well may last several years to as much as 50 years, the Board’s decision was clearly supported by substantial competent evidence.
Likewise, the record discloses sufficient evidence to support the Board’s finding that drill bits were more in the nature of tools or equipment and do not fall within the immediately consumed exception of K.S.A. 79-3606(n).
Appellant next contends that the district court erred in finding that drill bits, casing and cement are not immediately consumed or dissipated in the drilling and production of oil and gas as contemplated by K.S.A. 79-3602(m) and therefore not entitled to an exemption from taxation under K.S.A. 79-3606(n). Resolution of this issue turns upon the interpretation and application of the referenced statute. K.S.A. 79-3606(n) (amendments at L. 1985, ch. 171, § 11 and ch. 331, § 1 not applicable to this case) provides:
“The following shall be exempt from the tax imposed by this act:
“(n) all sales of tangible personal property which is consumed in the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, the providing of services or the irrigation of crops for ultimate sale at retail within or without the state of Kansas; and any purchaser of such property may obtain from the director of taxation and furnish to the supplier an exemption certificate number for tangible personal property for consumption in such production, manufacture, processing, mining, drilling, refining, compounding, irrigation and in providing such services.”
Appellant’s contention is that the drill bits, casing and cement are consumed in the drilling of a well and should be exempt from the tax. Attention must therefore be given to the definitional section of the sales tax provisions found at K.S.A. 79-3602(m) (amendment at L. 1985, ch. 330, § 1 not applicable) which provides;
“(m) ‘Property which is consumed’ means tangible personal property which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in (1) the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, (2) the providing of services or (3) the irrigation of crops, for sale in the regular course of business, and which is not reusable for such purpose.”
We must deal in this case with the meaning of “consumed” as used in the foregoing statutes. Apparently that term has never been judicially construed in the context of these statutes, and is subject to several interpretations.
The rules for statutory construction are set out in the recent case of Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d at 109-10, which states:
“Construction of a statute is required when statutes are ambiguous. See State ex rel. Stephan v. Martin, 230 Kan. 747, Syl. ¶ 3, 641 P.2d 1011 (1982). A statute is ambiguous when there are two or more interpretations which can fairly be made. See State ex rel. Stephan v. Martin, 230 Kan. 747, Syl. ¶ 3.”
Also, again citing Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d at 110, we find the following additional rules set out:
“In construing a statute, a court must use reason and consider the practicalities of the matter addressed. [Citation omitted.] A statute should never be interpreted to lead to uncertainty, injustice or confusion. [Citation omitted.] The effects of the statute under the interpretations urged by the parties should be considered. [Citations omitted.]”
The burden is on the taxpayer to bring himself within the exemption because taxation is the rule and exemption is the exception. See R. L. Polk & Co. v. Armold, 215 Kan. 653, 655, 527 P.2d 973 (1974), citing Assembly of God v. Sangster, 178 Kan. 678, 290 P.2d 1057 (1955), and Warren v. Fink, 146 Kan. 716, 72 P.2d 968 (1937).
The Polk case, 215 Kan. 653, appears to be the only Kansas case concerned specifically with the K.S.A. 79-3606(n) exemption. The court in that case found that the lithoplates used in the process of printing telephone directories were “consumed” under the provisions of K.S.A. 79-3606(n). In making its decision, the court relied on the Minnesota case of Midwestern Press, Inc. v. Commr. of Taxation, 295 Minn. 59, 203 N.W.2d 344 (1972). In Polk, 215 Kan. at 658, the court concluded:
“In the case at bar, the consumption or dissipation of the property in question, as opposed to depreciation, breakage, wearing out or obsolescence, as in the case of permanent machinery or equipment, has been shown. The dissipation of the developer was continuous. The entire process of manufacture occurs over a relatively short period of time, during which some consumption or dissipation takes place and after which the property or materials are rendered useless for all practical purpose. The manufacture is accomplished within a time reasonably requisite. Accordingly, we hold that the items are shown to have been immediately consumed within the purview of the exemption statute.”
In the Polk case, as well as the Midwestern case, 295 Minn. 59, the lithoplates and related materials were used in one process and were discarded as junk thereafter.
In the case before us, the casing, cement and drill bits are all standard items utilized in the drilling of any typical well. Although the drill bits may be worn down at a faster pace depending on the particular formation being drilled into, it is also possible to use the bits in another hole if they haven’t been worn out completely. This is a fundamental distinction from the lithoplates in the Polk and Midwestern cases. Another fundamental difference is that in the case at bar, the drill bits are not designed solely for use in a specific well, unlike lithoplates which are designed and subject for use only for one particular printing job.
Appellant points out that Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, contained language which was crystal clear in setting out the legislative intent. The particular language relied on is found at page 110 when the court, referring to K.S.A. 79-3606(n), stated:
“This subsection, together with 79-3603(p), clearly demonstrates the general legislative intent to exclude from sales taxation activities relating, inter alia, to oil, gas and water production.”
Appellant contends this language makes it clear that activities relating to oil and gas drilling and production were intended by the legislature to be exempt from taxation.
However, the legislative intent does not mandate that all activities relating to oil and gas drilling and production be exempt. The definition itself is limited:
“ ‘Property which is consumed’ means . . . property . . . which is used in the actual process of and immediately consumed or dissipated in (1) the . . . drilling . . . and which is not reusable for such purpose.” (Emphasis added.) K.S.A. 79-3602(m).
Because drill bits may be used in the drilling of more than one well, this language appears to speak specifically against the application of the exception in this instance.
Because casing and cement become one permanent structure, and since neither can be removed once the cementing process is completed, it would appear they should be considered together for our discussion purposes. Either both should be subject to tax, or both should be exempt. There are no apparent cases in point. We must therefore analyze just what happens to the casing and cement. As argued by appellant, once the casing is put into the ground and cemented in, “there is no known method for recovery”; therefore the cement and casing are immediately and directly consumed.
The fallacy of this argument, however, is that the well itself would be useless without the casing being cemented in. The casing and cement become integrated into the well itself, not the oil or gas that might flow from the well.
Appellant’s contention that the casing and cement are analogous to the lifhoplates discussed previously herein is totally without merit. The facts in R. L. Polk & Co. v. Armold, 215 Kan. 653, were that the lithoplates, after the manufacturing process, served no useful purpose. In the case at bar, the casing and cement serve a useful purpose throughout the life of the well which, according to the testimony in the record as found by the Board of Tax Appeals, could be as long as 50 years. It cannot be said, therefore, that the casing and cement were consumed in the drilling process itself.
For the foregoing reasons, we hold that the district court did not err in finding that drill bits, casing and cement were not exempt from taxation under K.S.A. 79-3606(n).
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Briscoe, J.:
Plaintiffs, Rodney J. and Jane B. Smith, sued defendants, Wayne Dunn, Donald V. “Buck” Schooler, Bob Rickel and Doug Rickel, for damages to their home caused by fire. The trial court granted summary judgment in favor of defendants Bob and Doug Rickel. The Rickels moved the court to award their attorney fees and expenses contending the suit against them was frivolous. The trial court granted this motion against plaintiffs’ attorney pursuant to K.S.A. 60-211 and 60-2007 and entered judgment against plaintiffs’ attorney in the amount of $2,188.05 plus interest at the judgment rate. Plaintiffs’ attorney appeals.
The sole issue raised is whether the trial court abused its discretion in assessing attorney fees and expenses against plain tiffs’ attorney pursuant to K.S.A. 60-211 and 60-2007 for filing an amended petition which joined the Rickels as defendants. We reverse.
In 1974 the plaintiffs contacted Wayne Dunn to have him construct a chimney and fireplace for a woodburning stove, prior to moving into their new house. Dunn agreed to do the work. Although Dunn had other workmen assist him with the work, the plaintiffs testified that they paid only Dunn.
Plaintiffs were not present when the chimney was constructed and have no knowledge of who in fact was involved in its construction. The exterior chimney was completed in late 1974.
The interior work was done in July 1975. Plaintiffs saw Dunn construct the brick veneer wall and the brick flooring upon which the stove would stand. Plaintiffs also saw Dunn work on the hole in the interior wall where the stovepipe was inserted. Plaintiffs never saw Bob or Doug Rickel work on either the exterior chimney or the interior construction.
On May 6, 1982, plaintiffs’ home was damaged by fire. The cause of the fire was investigated and plaintiffs were informed that the fire originated in the wall near the woodburning stove. Specifically, the fire was caused by the presence of combustible materials in the wall which were left too close to the uninsulated stovepipe that led through the wall and to the chimney flue.
The question for plaintiffs and their counsel then became who was responsible for leaving the combustible material too near the uninsulated stovepipe? Plaintiffs first sued Dunn alleging he was negligent in constructing the chimney and installing the woodburning stove. Plaintiffs also alleged Dunn’s actions constituted a breach of warranty.
Plaintiffs took Dunn’s deposition on February 27, 1984. During his deposition, Dunn testified that Buck Schooler and Gary Lane had assisted in the chimney project. Dunn also testified he could not recall what work he had performed on the interior of the house but that the exterior chimney had already been completed by that time. Subsequent to his deposition, Dunn informed plaintiffs’ attorney he was mistaken about Lane’s involvement and believed that Bob and Doug Rickel, along with Schooler, were the other parties involved.
Bob Rickel was a bricklayer and his nephew Doug worked as his assistant. Plaintiffs’ attorney visited with Bob on several occasions but Bob denied that he and Doug had done any work on the plaintiffs’ property.
On April 11, 1984, Dunn’s attorney sent plaintiffs’ attorney a copy of a December 11, 1974, letter from plaintiffs to Dunn which had been sent to Dunn with payment for itemized labor and material. By notation on this letter, Dunn’s wife indicated Bob Rickel had been paid $160. Bob could not explain this payment but continued to deny any involvement with plaintiffs’ chimney project. On April 25, 1984, approximately two weeks before the statute of limitations was to expire, Dunn’s attorney sent plaintiffs’ attorney two cancelled checks. One dated December 22, 1974, was from Dunn to Bob for $160. The other dated December 30,1974, was from Dunn to Doug in the amount of $273. Both checks were endorsed by the respective payees and presented for payment. Both checks bore the memo notation “R. Smith job.” The $273 check coincided with an enumerated amount for 42 hours of labor at $6.50 per hour contained in the December 11, 1974, letter from the Smiths to Dunn.
Plaintiffs’ attorney amended the original petition and included Bob and Doug Rickel as defendants on April 26, 1984. After being named a defendant, Bob was deposed by plaintiffs’ attorney. He continued to deny any involvement with plaintiffs’ chimney project and was unable to explain the checks from Dunn. Bob could only speculate that the $160 check could have been for a cement mixer or for something other than business.
The Rickels filed a motion for summary judgment on October 9, 1984, and on December 7, 1984, the trial court entered summary judgment in their favor. According to the court, even if the two checks evidenced their involvement in the project, there was no evidence to demonstrate any negligence on their part which caused the fire. After the court entered summary judgment in their favor, the Rickels sought recovery of their costs, expenses, and attorney fees against the plaintiffs and Dunn. The Rickels claimed they were joined as defendants without a reasonable basis in fact and that plaintiffs joined them as defendants without any prior investigation of the facts or discussion with the Rickels. The Rickels argued that had plaintiffs investigated their claim against the Rickels, they would have determined the Rickels were not involved in any of the acts that caused plaintiffs’ damage.
K.S.A. 60-211 provides:
"The signature of an attorney constitutes a certificate by the attorney that the attorney has read the pleading; that to the best of the attorney’s knowledge, information and belief there are good grounds to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this section, it may be stricken, and the action may proceed as though the pleading had not been served. For a willful violation of this section, an attorney may be subjected to appropriate disciplinary action and may be held liable, pursuant to K.S.A. 60-2007, for the payment of attorney fees and expenses of adverse parties incurred as a result of such violation. Similar action may be taken if scandalous or indecent matter is inserted.”
K.S.A. 60-2007 provides in pertinent part:
“(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim . . . without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually or jointly and severally liable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim ....
“(d) The purpose of this section is not to prevent a party from litigating bona fide claims or defenses, but to protect litigants from harassment and expense in clear cases of abuse.”
The assessment of attorney fees and expenses pursuant to K.S.A. 60-211 and K.S.A. 60-2007(b) lies within the sound discretion of the court and will not be disturbed on appeal absent a showing of abuse. Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983). The burden of demonstrating an abuse of discretion is on the party asserting it. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). Judicial discretion is said to be abused when judicial action is arbitrary, fanciful, or unreasonable. Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982). The fact that a party’s claim is ultimately denied does not in itself indicate that the claim was frivolous. City of Shawnee v. Webb, 236 Kan. 504, 512, 694 P.2d 896 (1985). Rather, we must look at whether there was a “reasonable basis in fact” for the claim when it was asserted, and whether the claim was asserted in good faith. K.S.A. 60-2007(b).
In assessing attorney fees and expenses against plaintiffs’ attorney, the trial court concluded that plaintiffs’ claim against Bob and Doug Rickel was without a reasonable basis and based upon that conclusion the court then determined the claim was not made in good faith. According to the trial court, there was no evidence to support the claim. The trial court found that all the information received by the plaintiffs revealed that any negligence that caused the fire related to the interior rather than exterior work on the chimney. In addition, the only evidence of the Rickels’ involvement, i.e., the two cancelled checks, indicated their involvement was on the exterior and had been completed in the fall of 1974. Plaintiffs testified that the interior work was done in 1975 by Wayne Dunn. The trial court concluded that proceeding against the Rickels in light of this information evidenced a lack of good faith.
Plaintiffs’ attorney raises three arguments in support of his contention that the trial court abused its discretion in assessing fees and expenses. First, he argues that the trial court erred in applying hindsight rather than foresight in evaluating the reasonable basis for the claim. Plaintiffs’ attorney contends that a more thorough investigation was not possible because the statute of limitations was about to run. He notes that the Kansas Supreme Court has considered this an important consideration in Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980). According to plaintiffs’ attorney, the Rickels’ denial of any involvement created uncertainty, and he contends it was therefore reasonable to proceed against them. The trial court rejected this argument, concluding that all the information gathered before the clairii was filed exonerated the Rickels. The trial court indicated that uncertainty without any supporting evidence is not a reasonable basis for a claim.
Although it does not appear that the trial court based its conclusion on the mere fact that the claim ultimately proved unsuccessful, we cannot agree that all the facts gathered by plaintiffs before the claim exonerated the Rickels. Plaintiffs had the letter, the checks, and Dunn’s testimony, all indicating the Rickels had worked on the plaintiffs’ construction. Plaintiffs’ attorney, who was faced with the running of the statute of limitations, had sufficient evidence upon which to proceed with a claim against the Rickels and attempt to prove their negligence.
Second, plaintiffs’ attorney contends there was a reasonable basis in fact to bring a claim against the Rickels because there was evidence the Rickels performed part of the construction and it remained in question whether the Rickels or Dunn made the “opening to the chimney.” Plaintiffs’ attorney points to the trial court’s own finding entered after the trial involving the claim against Dunn that Dunn did not do all of the cutting on the passageway between the interior hole in the wall and the exterior chimney flue. The court found that this passageway had already been partially completed prior to the time Dunn did his interior work in July 1975.
We find this “passageway” argument compelling and, consequently, we do not agree with the trial court’s factual analysis of this case. In determining whether plaintiffs’ attorney had a reasonable basis in fact to assert a claim against the Rickels, the trial court broke its analysis down to whether there was any evidence to support a claim that the Rickels were negligent in their performance of either the exterior or the interior work. The court then concluded the fire was caused by the interior work and that the evidence tying the Rickels to the job all related to earlier exterior work. This interior/exterior analysis is too simplistic and it ignores the fact that the fire started in the wall— between the interior and exterior work. It would appear logical that either Dunn working from the inside or the Rickels working from the outside could have had some part in constructing the hole through the wall and preparing the hole for the placement of the stovepipe. Plaintiffs’ attorney had a reasonable basis in fact to file a claim against the Rickels.
Finally, plaintiffs’ attorney contends that he should not be found to have acted without good faith where the claim asserted had a reasonable basis. Under our interpretation of the statute, a finding of good faith does not establish a reasonable basis in fact, or vice versa. As we interpret the statute, two separate requirements must be met before attorney fees and expenses can be assessed: (1) the claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith. In other words, it would be possible for the attorney to have acted with actual good faith even though it could later be shown that the claim had no reasonable basis in fact when it was asserted. When read in this manner, the statute would only penalize willful misuses of the judicial process. This interpretation is consistent with K.S.A. 60-211 which provides that “willful” attorney violation of the statute may be dealt with pursuant to K.S.A. 60-2007. Here, the trial court made no separate subjective analysis of whether the plaintiffs’ attorney exercised good faith in asserting a claim against the Rickels. Given our decision that plaintiffs’ attorney had a reasonable basis in fact to assert the claim, we do not remand the good faith issue to the trial court for further findings.
The judgment entered against plaintiffs’ attorney is reversed. | [
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Brazil, J.:
The children of Birdia Sims Jackson (deceased) appeal the order of the Riley County District Court granting summary judgment for the defendant, James Wood, d/b/a Elfin Acres Trailer Court, in a wrongful death action.
On or about January 25,1978, Birdia Sims Jackson and John L. Hollingsworth were overcome by carbon monoxide gas leaking from a heater vent in a duplex in Ogden, Kansas, owned by the defendant and rented to Hollingsworth. The rental agreement for the duplex was signed by Pam Tunison, daughter of the defendant who was acting as an authorized agent for the de fendant, and John Hollingsworth. The agreement, dated August 26, 1977, lists John Hollingsworth and Birdia Hollingsworth as tenants, but was signed only by John.
On April 19,1984, the four children of Birdia Sims Jackson, by and through their next friend, Charles Jackson, filed this action seeking damages for the death of their mother and alleging that the defendant breached the duty of care owed to the tenants: 1) in providing with the rented premises a heating device that was hazardous to occupants; 2) in failing to inspect and repair the heater; and 3) in failing to maintain all heating and ventilating appliances in good and safe working order and condition in violation of K.S.A. 58-2553(a). Although the original petition alleged Birdia was a social guest at the time of her death, plaintiffs’ subsequent pleadings include an allegation that she was a tenant.
The defendant filed a motion for summary judgment alleging that at the time of her death Birdia was a guest of John Hollingsworth rather than a tenant. The trial court agreed and further concluded that, since she was not a tenant, she was not entitled to the standard of care due to tenants under the Kansas Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq. Instead the court concluded that, at best, she was a licensee, that defendant owed a duty only to refrain from wilfully or wantonly injuring her, and that “as a matter of law . . . the evidence does not show wilful and wanton negligence on the part of the defendant.”
The plaintiffs raise four issues on appeal, one of them being: Whether a landlord owes the same duty of reasonable care to a social guest of a tenant as is owed to the tenant.
“Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him.” Gerchberg v. Loney, 223 Kan. 446, 448, 576 P.2d 593 (1978) (citing Ralls v. Caliendo, 198 Kan. 84, Syl. ¶ 1, 422 P.2d 862 [1967]); Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945 (1970). Likewise, it would appear that in a landlord-tenant relationship, a social guest of a tenant is also a mere licensee. Hamilton v. Ling, 1 Kan. App. 2d 22, Syl. ¶ 1, 561 P.2d 880, rev. denied 225 Kan. 844 (1977).
However, in this particular relationship “dealing with a claim against a landlord, a non-occupying defendant, by a guest of his tenants . . . , the status of the plaintiff as a ‘social guest or licensee’ or ‘invitee’ fades in significance.” Hamilton v. Ling, 1 Kan. App. 2d at 24. The Hamilton court reached this conclusion based upon Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975).
As noted by the court in Borders:
“Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. [Citations omitted.] The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant. [Citations omitted.] When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilities of one in possession, both to those who enter onto the land and to those outside of its boundaries. . . . There is therefore, as a general rule, no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease.” 216 Kan. at 488.
However, in Borders the court also noted that the general rule of nonliability has been modified by a number of exceptions which have been created as a matter of social policy. One of those exceptions, “[w]here lessor contracts to repair,” 216 Kan. at 491, is applicable to this appeal. From Borders it appears that when the lessor contracts to repair, the rule stated in § 357 of the Restatement (Second) of Torts (1965) applies and the landlord owes a duty of reasonable care not only to his tenant, but also to others on the premises with the consent of the tenant.
“ ‘§ 357. Where Lessor Contracts to Repair
“ ‘A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
“ ‘(a) the lessor, as such, has contracted by a convenant in the lease or otherwise to keep the land in repair, and
“ ‘(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
“ ‘(c) the lessor fails to exercise reasonable care to perform his contract.’ ” (Emphasis added.) 216 Kan. at 492 (quoting Restatement [Second] of Torts § 357).
Therefore, if the exception is applicable, whether Birdia was an invitee or a mere licensee is irrelevant. Under the rule of liability created by the exception, the landlord owes a duty of reasonable care to perform his contract to repair to both invitees and licensees. See Hamilton v. Ling, 1 Kan. App. 2d at 25.
The question then becomes whether there was a contract to repair which would bring the Borders exception into play. The plaintiffs argue that the defendant owed a duty of reasonable care to Birdia because he contracted to repair in the lease and failed to carry out his duty to repair. The defendant argues that this theory was not presented to the trial court and cannot be considered by this court on appeal. “ ‘A litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court, nor may he present matters or issues which he did not bring to the attention of that court.’ [Citations omitted.]” Goff v. American Savings Association, 1 Kan. App. 2d 75, 78, 561 P.2d 897 (1977).
In this case, while the duty to repair pursuant to the written terms of the lease was not presented to the trial court, the plaintiffs did allege in their response to the motion for summary judgment that the landlord breached his duty of care in failing to maintain all heating and ventilating appliances in good and safe working order and condition in violation of K.S.A. 58-2553(a). The trial court found that Birdia Sims, at the time of her death, was not a tenant and that “[a]s a result the standard of care due from the defendant to his tenants by virtue of the Kansas Residential Landlord and Tenant Act [K.S.A. 58-2540 et seq.] did not apply to Birdia Sims.” Thus we conclude, the applicability of K.S.A. 58-2553(a) and its interplay with the lease has been sufficiently raised below to warrant our consideration here.
K.S.A. 58-2553(a)(3) provides:
“(a) Except when prevented by an act of God, the failure of public utility services or other conditions beyond the landlord’s control, the landlord shall:
“(3) maintain in good and safe working order and condition all . . . heating, ventilating . . . appliances . . . supplied or required to be supplied by such landlord.”
This court has previously observed that K.S.A. 58-2553 imposes duties on the landlord which he cannot delegate to the tenant in the lease. State v. Mwaura, 4 Kan. App. 2d 738, 741, 610 P.2d 662, rev. denied 228 Kan. 807 (1980). However, no Kansas cases have considered whether the statute creates a contract to repair which would make the Borders exception (Restatement [Second] of Torts § 357) applicable when a landlord fails to maintain heating or ventilating appliances in good and safe working order. .
In Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974), a tenant sued the landlord to recover rent paid, to recover damages, and to enjoin violation of the Wichita Housing Code. The court, adopting the idea of an implied warranty of habitability, concluded:
“The provisions of a municipal housing code prescribing minimum housing standards are deemed by implication to become a part of a lease of urban residential property, giving rise to an implied warranty on the part of the lessor that the premises are habitable and safe for human occupancy in compliance with the pertinent code provisions and will remain so for the duration of the tenancy.” 214 Kan. 329, Syl. ¶ 8.
The implied warranty of habitability concept, at least so far as it is embodied in municipal housing codes and ordinances, adopted in Steele was codified in K.S.A. 58-2553(a)(l). See Brand, The New Residential Landlord and Tenant Act, 44 J.K.B.A. 227, 231 (1975). In Clark v. Walker, 225 Kan. 359, 363, 590 P.2d 1043 (1979), the court considered the Residential Landlord and Tenant Act as a whole and the legislative purpose of enacting it.
“The legislative history and background for the act is contained in the Report of the Special Committee on Consumer Protection to the 1974 legislature pertaining to proposal No. 17 governing landlord-tenant relations. In its report, the special committee points out that the subject of study was ‘the need for additional legislation governing landlord-tenant relations.’ In general, existing Kansas statutes in this area related to the duration and termination of various tenancies and forcible detainer actions. At the time of the report, there was little or no statutory law in Kansas governing the more substantive aspects of landlord-tenant relationships. The report noted that the Uniform Residential Landlord-Tenant Act was approved by the National Conference of Commissioners on Uniform State Laws at its August 1972, annual meeting. The committee then makes the following conclusions and recommendations:
“ ‘Upon analysis of the information before the Committee, it became apparent that the antiquated common law concepts and absence of statutory law creates problems and works to the detriment of both landlords and tenants who may very well be operating on different premises. It is the opinion of the Committee that there is a need to statutorily state the various obligations and other elements of tenancy so as to adequately express the modern day concepts of landlord-tenant relations. It should not be made the responsibility of the courts to develop these concepts. Therefore, the Committee recommends that the 1974 legislature enact a comprehensive landlord-tenant code which would establish a single standard of reference for both landlords and tenants.’ (17-3.)” (Emphasis added.) 225 Kan. at 363.
While Steele and K.S.A. 58-2553(a)(l) define minimum standards for rental housing which are read into and become part of the lease, we have found no cases in which our courts have specifically considered whether K.S.A. 58-2553(a)(3) should be read into and become a part of the lease; or whether it codifies Restatement (Second) of Torts § 357 principles as approved in Borders.
We note that Borders was decided in March 1975 prior to the enactment of the Kansas Residential Landlord and Tenant Act on July 1, 1975. Likewise, the Hamilton v. Ling case decided in February 1977 involved injuries that occurred in 1971. Consequently, the Act was not applicable in either case.
However, the court in Hamilton v. Ling, when considering Steele v. Latimer, which incorporated the city’s minimum housing standards into a lease of urban residential property, stated: “Thus, a contract arises under which a landlord must keep the premises in compliance with the standards.” 1 Kan. App. 2d at 26. The court went on to conclude, since the plaintiff in Hamilton v. Ling had not raised the issue as to housing standards, “that no ‘contract to repair within the meaning of Borders exception 5 [Restatement (Second) of Torts § 357] existed.” (Emphasis added.) 1 Kan. App. 2d at 26.
In these two cases, then, our courts have concluded that municipal housing ordinances relating to housing standards must be incorporated into residential leases. Further, Hamilton v. Ling would appear to hold that such a contract created by law would constitute a contract to repair within the meaning of the Borders exception. Finally, State v. Mwaura holds that K.S.A. 58-2553(a)(1) - (3) and K.S.A. 58-2547 “impose absolute and nondelegable duties” on landlords. 4 Kan. App. 2d at 741. We are thus persuaded that the duties imposed upon landlords under the Kansas Residential Landlord and Tenant Act must be incorporated into residential leases and that K.S.A. 58-2553(a)(3) constitutes a contract to repair within the meaning of the Borders exception.
Accordingly we hold that, if the landlord knew or reasonably should have known of a defective condition in the heating stove or ventilation, then the landlord owed a duty of reasonable care to repair so as to maintain the heating stove and ventilation in good and safe working order and condition. We further hold that duty is owed not only to the tenant but to others on the premises with the consent of the tenant. Whether Birdia was a tenant or a guest of the tenant, in our view, is irrelevant and this case must be reversed and remanded for trial.
Based on our ruling here, the other issues raised by plaintiffs on appeal need not be addressed. Reversed and remanded for trial. | [
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Rees, J.:
Defendant appeals from his conviction by a jury for aggravated failure to appear (K.S.A. 21-3814).
This case concerns the scope of the lawyer-client privilege (K.S.A. 60-426). We are to decide whether the trial judge properly permitted defendant’s former lawyer to testify that he had communicated to defendant that defendant was to appear in court on March 8, 1984.
Defendant’s former lawyer had represented defendant at an earlier multi-week trial on felony charges. Jury trial began on January 30, 1984. Defendant was free on appearance bonds during the trial and while the jury deliberated. On the morning of March 8, the jury sent word to the trial judge that it had arrived at its verdicts. The court bailiff, on the judge’s instructions, telephoned the lawyer’s office. He left word that the lawyer and defendant were to come to court for the reading of the verdicts. Over defendant’s objection, the former lawyer was permitted to testify in the case before us that, after having received the bailiff s message, he had communicated by telephone conversations with defendant that the jury had arrived at its verdicts and that defendant’s appearance in court was required. Defendant did not come to the courthouse that day. His bonds were ordered forfeited. He next appeared in court some six months later when Kansas officers returned him from Nebraska after his arrest there.
To convict defendant on the present charge of aggravated failure to appear, it was essential that the State prove that defendant knew on March 8, 1984, that he was to appear in court that day. Asserting the lawyer-client privilege, defendant attempted to defend on the theory that his failure to appear was not willful for the reason that there was no proof that he knew he was to appear.
Defendant relies upon the spirited dissenting opinion in State v. Ogle, 297 Or. 84, 99-112, 682 P.2d 267 (1984), also a failure to appear case. The statutory enunciation of the lawyer-client privilege applicable in Ogle provided that: a client has a privilege to prevent any other person from disclosing communications (1) between the client and the client’s lawyer (2) not intended to be disclosed to third persons and (3) made for the purpose of facilitating the rendition of professional legal services to the client. Or. Rev. Stat. § 40.225 (1), (2) (1984). The position adopted by the Ogle minority was that admissibility of evidence that in the earlier case the defendant’s lawyer had communicated to him an appearance date was controlled by the particular Oregon statutory language delineating the privilege, rather than by common law or case authority not founded on the language of the Oregon statute; that the purpose of the lawyer-client communication at issue was to facilitate “legal services”; and that it was necessary that the trial court take evidence to show what the intent was, when the communication occurred, as to disclosure to third persons of the fact of communication.
There are sound bases for denying application of the Ogle dissent and its reasoning to the case before us. First, the Oregon statute, Or. Rev. Stat. § 40.225 (1)(b) (1984), states that as used in that statute “ ‘Confidential communication’ means a communication [between the client and the client’s lawyer] not intended to be disclosed to third persons . . . .” (Emphasis added.) In contrast, within K.S.A. 60-426(c)(2), our statutory exposition of the lawyer-client privilege, it is provided that:
“ ‘[C]ommunication’ includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representa tive ... of the lawyer incidental to the professional relationship.” (Emphasis added.)
By use of the word “includes,” K.S.A. 60-426(c)(2) says that a lawyer’s advice to the client and a client’s disclosures to a representative of the lawyer are two but less than all of the communications to which the privilege may apply. If the wording of K.S.A. 60-426(c)(2) were either that “communication” means, is composed of, or comprises a lawyer’s advice to the client and a client’s disclosures to a representative of the lawyer, the result would be quite different; the two identified situations would be the only ones to which the privilege would apply. There would be omitted from the protection of the privilege disclosures and other communications from a client directly to the lawyer. Clearly, that would be a result not likely intended by the legislature. Those are exactly the communications traditionally afforded confidentiality.
The word “communication” as used in our statutory definition of the lawyer-client privilege means a statement transmitting information between a lawyer and his client. State v. Newman, 235 Kan. 29, 40, 680 P.2d 257 (1984). The lawyer-client privilege protects confidential communications, that is, communications between a lawyer and his client made in professional confidence. That is the essence of K.S.A. 60-426(a). See State v. Regier, 228 Kan. 746, 748-49, 621 P.2d 431 (1980); Fisher v. Mr. Harold's Hair Lab, Inc., 215 Kan. 515, 519, 527 P.2d 1026 (1974); cf. Cranston v. Stewart, 184 Kan. 99, 102, 334 P.2d 337 (1959).
There must be a confidential communication for the privilege to be operative. We conclude that the communication disclosed here was not a confidential communication; there was no disclosure of a confidential communication by defendant’s former lawyer’s testimony.
In reported federal and foreign decisions, this has been said:
“Communications by a defense counsel to the client or by a client to the defense counsel regarding the time and place of trial are not confidential and therefore are not protected by the attorney-client privilege. United States v. Freeman, 519 F.2d 67, 68-69 (9th Cir. 1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); United States v. Hall, 346 F.2d 875, 882 (2d Cir.), cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965); United States v. Woodruff, 383 F.Supp. 696 (E.D.Pa. 1974).” In re Grand Jury Proc., Des Moines, Iowa, 568 F.2d 555, 557 (8th Cir. 1977).
“The district court did not err in requiring counsel to testify. The evidence sought to be elicited from him was not of a confidential nature and hence was not protected by the attorney-client privilege. It simply related to whether he had advised his client of the court’s order to appear. We think the Second Circuit aptly appraised the matter when it said:
“ ‘The relaying of this message is not in the nature of a confidential communication. [Citations omitted.] Defense counsel served merely as a conduit for transmission of a message. * * * Defendant’s counsel had a duty to relay the instructions to his client in his capacity as an officer of the court, and this in no way was inconsistent with his obligation to his client.’
United States v. Hall, 346 F.2d 875, 882 (2d Cir. 1965); see also United States v. Woodruff, 383 F.Supp. 696, 698 (E.D.Pa. 1974).” United States v. Freeman, 519 F.2d 67, 68 (9th Cir. 1975).
“It is also argued that it was error to permit appellant’s former attorney to testify that he notified appellant to be present for his first trial .... Relating such notice to the client was counsel’s duty as an officer of the court, and was not within the privilege.” United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.) cert. denied 396 U.S. 915 (1969).
“Communications between counsel and defendant as to the trial date do not involve the subject matter of defendant’s legal problem. . . . Such communications are non-legal in nature. Counsel is simply performing a notice function. . . .
“[T]he transmission to defendant from the attorney of the fact of the time of trial is not privileged.” United States v. Woodruff, 383 F. Supp. 696, 698 (E.D.Pa. 1974).
“When an attorney notifies a client of a court date set for the client, . . . [t]he lawyer is acting merely as an agent for the court in communicating the court date to the client. The attorney’s later disclosure of the fact that he or she performed this function is not privileged.” State v. Ogle, 297 Or. at 89 (majority opinion).
We find these statements and holdings appear with respect to analogous factual circumstances. They are persuasive. We are aware of no authority to the contrary.
In his argument to us, defendant lodges an additional complaint that he was denied effective assistance of counsel. In substance, it is argued defendant’s trial counsel failed to assert insanity as a trial defense to the State’s necessary claim that defendant’s conduct was willful. We cannot consider this claim by defendant as an issue on this appeal.
An appellant has the burden of furnishing a record affirmatively showing prejudicial error occurred in the trial court. State v. Bright, 229 Kan. 185, 190-91, 623 P.2d 917 (1981); State v. Montgomery, 175 Kan. 176, 179, 261 P.2d 1009 (1953). The record on appeal wholly fails to reflect that a claim of ineffective assistance of counsel was presented in the trial court. Defendant cannot raise an issue on appeal that was not presented to the trial court. State v. Kelly, 204 Kan. 715, 716, 466 P.2d 350 (1970); State v. Hunt, 8 Kan. App. 2d 162, 167, 651 P.2d 967 (1982).
Affirmed. | [
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Opinion by
Clogston, C.:
The articles of partnership under which plaintiff claims damages are as follows :
“ This indenture, entered into between C. L. Adams of the first part, and Joseph Koenig, of Louisville, Ky., of the second part, this 18th day of August, 1884, at Wichita, Kansas:
“1. Witnesseth, that the party of the first part and second part herein named do hereby mutually agree, promise and bind themselves to form a copartnership under the name of Adams & Koenig, for the purpose of carrying on the business of cutting, sawing and dressing stone, marble and granite for all purposes; also, of trading, buying and selling lime, cement, bricks, plaster, hair, etc.
“ 2. Each copartner shall have an equal, undivided one-half interest in all stock, fixtures, materials, tools, teams, papers, etc., owned by such firm. The profits shall be equally divided at the end of every year, and each partner bear an equal share of all losses.
“ 3. Each of the above partners agrees and promises to devote his whole time and attention to said business.
“4. Each of said parties agrees and promises not to sell or convey his interest in said firm unless the other partner consent.
“ 5. Each party agrees and promises not to draw from said business more than one thousand dollars per year, if so much profit be made that his share would amount to that sum, unless the other partner of said firm consent.
“6. Joseph Koenig, the party of the second part, agrees and promises that two dollars per day be allowed to C. L. Adams, the party of the first part, for six months following the first six months of the existence of the said partnership, over and above his share of the profits.
“ 7. It is further agreed between the said parties that neither partner shall have the right nor power to bind the other partner for any greater sum than $300, without the consent of his copartner.
“8. This partnership is to take effect on and including the 16th day of September, 1884, and shall continue until dissolved as the law provides.
“9. It is further agreed between the above parties that C. L. Adams will supervise the shop and work connected with it, and that Joseph Koenig will generally see to the work connected with the business outside of the work-shop, or outside of the city.
Sighed the 19th of August, 1884. C. L. Adams.
Joseph Koenig.
Witness: Chris. Kimmerle.”
Plaintiff also alleges in his petition that by virtue of said agreement the partnership was formed, and continued from the 16th day of September until the 30th day of September, 1884, when the defendant notified plaintiff that he would no longer do business with him, and no longer continue the partnership; that by reason thereof the partnership was dissolved, and plaintiff sold his interest therein, and sustained damages in the sum of $1,600; that by the terms of said articles it was understood that the partnership was to continue a year.
Defendant objected to the introduction of testimony under this petition, and the court sustained the motion and dismissed the case. Plaintiff complains, and insists that because the contract provides for a division of profits for the first year, thereby it becomes a contract of partnership for one year. Defendant claims that the contract created a partnership at will, and could be dissolved at the pleasure of either party without the consent of the other. We think the defendant is right. The eighth provision of the articles under which the partnership was formed provides that the partnership shall continue until dissolved as the law provides.
Mr. Parsons, in his work on Partnership, says:
“Dissolution of partnership takes place in seven different ways: First, by provision of the articles; second, by will of all the partners; third, by act of one or more of the partners alone; fourth, by a change of the partnership; fifth, by death of one of the partners; sixth, by decree of a court of equity; and seventh, by bankruptcy.”
See also Blaker v. Sands, 29 Kas. 551.
But plaintiff insists that because provision is made for the division of the profits for one year, that it must be deemed a partnership for that length of time at least. In this the plaintiff is mistaken. The contract provides for a division for the first year only on condition that it is not sooner dissolved as the law provides. No presumption will operate in favor of a party to continue a partnership, when by the terms of the articles forming the partnership it is expressly stated how or when it may be dissolved. .We are therefore of the opinion that this contract established a partnership at will only; and being such a partnership, it might at the will of the defendant, fairly expressed, be dissolved at any time. The plaintiff cannot complain.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a controversy among several claimants to money due upon a certificate of membership issued by the Masonic Mutual Benefit Society of Kansas, a cooperative insurance company organized for charitable and benevolent purposes. It was organized under the laws of Kansas, and its declared purpose is “ to give financial aid and benefit to the widows, orphans and dependents of deceased members thereof.” David D. Olmstead became a member of the society, and as such there was issued to him on February 4,1874, a certificate of membership, by which it was agreed that his beneficiary or beneficiaries would be entitled to a sum not exceeding two thousand dollars upon his death, if certain rules and requirements were complied with. It was expressly agreed and stated in the certificate that the benefit should be paid to Jennett Olmstead, his wife, or the legal representatives of the said Jennett Olmstead. On the 5th day of August, 1878, Jennett Olmstead died, and left surviving her the husband, D. D. Olmstead, and several children, the fruits of the marriage relation with D. D. Olmstead. On the 25th day of August, 1884, D. D. Olmstead died, leaving no other heirs than those heretofore named as the heirs of Jennett Olmstead. Shortly before his death he executed a will in which he named his son, Oscar W. Olmstead, as executor, and by which he undertook to bequeath the benefit to be derived from his membership in the insurance company. He gave in unequal amounts about one-half of the benefit to seven of his children, and to the one appointed executor he gave the residue, and directed him to pay therefrom certain doctor bills, his funeral expenses, and also for his tombstone. The certificate of membership remained in the possession of D. D. Olmstead during his lifetime, and all fees charged and assessments made thereon were paid. No change was made in the beneficiary, either before or since the death of Jennett Olmstead, and the Masonic Mutual Benefit Society never received from the assured, nor from anyone else, an affidavit setting forth the facts with reference to the decease of Jennett Olmstead; and there was never issued any other certificate or policy in lieu of the one originally issued. The Masonic Mutual Benefit Society admits its liability upon the certificate, and is willing to pay the same to whomsoever is entitled to receive it. Oscar W. Olmstead claims the money as executor of the last will and testament of D. D. Olmstead, and has brought the present action against the society to recover the same. The society brought the money into court and asked that the legal representatives and heirs of Jennett Olmstead be made parties defendant, and a determination made as to whom the money belonged. At the trial it was determined that D. D. Olmstead could dispose of the benefit by his will, and the claim of the executor was sustained. The plaintiffs in error complain of this judgment.
We are to decide whether the beneficiary named in the certificate could be changed and the fund disposed of by the will, as was attempted to be done. The general rule applicable to policies of ordinary life insurance companies is, that the rights of the beneficiary are vested when the policy is taken, out, and the assured cannot, by will, deed or otherwise, change the beneficiary or transfer the interest vested without the consent of the beneficiary named in the contract. (Bliss on Life Ins., §318.) It is insisted that the certificates issued by cooperative insurance companies, like the Masonic Mutual Benefit Society of Kansas, are not governed by the rule mentioned, and that in such cases the rights of the beneficiary are not fixed upon the issuance or by the terms of the certificate, but do depend upon the standing of the assured in the society and his rights under the constitution and by-laws of the society; and therefore the member may exercise the power of changing the beneficiary. Among the authorities cited which appear to support this proposition are the following: Presbyterian Fund v. Allen, 106 Ind. 593; same case, 7 N. E. Rep. 317; Legion of Honor v. Perry, 140 Mass. 580; Hellenberg v. I. O. B. B., etc., 94 N. Y. 580; Ballou v. Gile, 50 Wis. 614; Gentry v. Supreme Lodge, 20 Cent. L. J. 393; Benefit Society v. Burkhart, 10 N. E. Rep. 79; Swift v. Benefit Association, 96 Ill. 309.
However well founded this distinction may be, it is clear that the beneficiary can only be changed and the benefit transferred to another in the manner prescribed by the rules and regulations of the society, and in accordance with the terms of the contract. The contract in this case specifically provided that the benefit should be paid to the wife of the member, or to her legal representatives. The addition of the words “legal representatives” clearly imports that, in case of her death, the benefit should be paid to her heirs or next of kin who fall within the classes mentioned in the charter to whom aid may be given. Thus the contract fixed and limited the persons who might receive the benefit. If we assume, as the authorities appear to hold, that a member of a cooperative society retains the power to change the beneficiary, still he cannot exercise his power except with the consent of the society, and in conformity with the rules and regulations of the society. (Aid Society v. Lupold, 101 Pa. St. 111; Vollman’s Appeal, 92 Pa. St. 50; Eastman v. Relief Association, 20 Cent. L. J. 266: Hellenberg v. I. O. B. B., etc., 94 N. Y. 580; Presbyterian Fund v. Allen, 106 Ind. 593; Insurance Co. v. Miller, 13 Bush, 489; Gentry v. Supreme Lodge, 20 Cent. L. J. 393.)
No provision was made in the certificate of membership for a change in the beneficiary, and the record does not show what rules, if any, the society had made respecting such change. It is admitted that no new designation was made by the assured prior to the death of his wife, nor was any change afterward made, except as attempted by the will.
Section 76, chapter 93, Laws of 1871, provides that —
“In case any life insurance company organized under the laws of this state shall have issued or may hereafter issue any policy of insurance upon the life of any person or persons for another’s benefit, and such beneficiary dies during the lifetime of the person or persons whose life or lives are assured by said insurance policy or policies, then it shall be lawful for such company to receive from the person or persons whose lives are assured, an affidavit setting forth the facts in the case; and if it shall appear from such affidavit that the affiants have theretofore paid the annual premium on such policy or policies, and intended thereby to insure for the benefit of the person or persons named in such policy or policies, as beneficiary, that such person or persons are dead, and that said policy or policies have not been assigned or transferred to any person or persons, and nominating or appointing some other person or persons as beneficiary, in place of the said deceased in said policy or policies named, it shall then be the duty of said insurance company to take up and cancel said policies, at the request of said assured, and issue in like terms another policy or policies upon the life or lives of said insured for the benefit of the beneficiary in said affidavit nominated.”
This statute applies to the defendant society. It was enacted prior to the making of the contract in question, and the parties must be held to have contracted with reference to it. It prescribes the manner by which the member may designate a beneficiary where the one first appointed has deceased, and it appears to be the only mode prescribed. We think the maxim, Expressio unius est exclusio alterius, applies; and as the prescribed mode has not been followed, no change was actually made, and therefore the benefit must be paid according to the terms of the contract. The asSUred had no interest in the benefit resulting from his membership. In no event was it payable to him, nor could it become a part of his estate; and having no interest in the fund, what was there for him to bequeath? We think the will was ineffectual to change the beneficiary or divert the fund from the persons named in the certificate, to wit: the representatives of Jennett Olmstead. It follows that the judgment of the district court must be reversed, and the cause remanded with instruction to enter judgment in favor of the plaintiffs in error.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This was an action of ejectment, brought by the plaintiff in error against the defendants in error, to secure possession of an eighty-acre tract of land in 'Wabauusee county. The plaintiff bases his title on these alleged facts: That he was married to Ahzh-nick, a Pottawatomie woman, daughter of Nwa-yah-ko-se, in 1852, at St. Marys, Kansas; that in 1853 a daughter was born to him and his wife as the fruit of said marriage, and that she was in early infancy christened Mary Ann Nwa-yah-ko-se at the Catholic church of St. Marys Mission, Kansas, of which these people seem to have been members; that in 1862 or 1863, this land was allotted to his daughter as allottee No. 1173, and that in 1864 she died at St. Marys; that no other children were ever born to plaintiff and wife; that some years after, his wife Ahzh-nick died without a will, thus leaving him the sole heir of this Mary Ann Nwa-yah-ko-se; that a patent was issued subsequently to said allotment, in the name of Mary Ann Nwa-yah-ko-se, for said land. The defendants admit the allotment to Mary Ann Nwa-yah-ko-se, and that a patent was issued to a person of the same name, but contend that the Mary Ann Nwa-yah-ko-se, to whom the allotment was made and the patent issued, was not the little daughter of plaintiff and Ahzh-nick, but was another granddaughter of old Nwayah-ko-se by his son Moz-wa.
The vital question to be decided in this action is, the identity of the allottee. There seems to be no conflict of testimony about the marriage of plaintiff with Ahzh-nick under the name of Angelica, the daughter of old Nwa-yah-ko-se, and of the birth in 1853 of the daughter who was christened Mary Ann Nwa-yah-ko-se.
It appears in evidence that the plaintiff was a member of the Chippewa tribe of Indians, and was employed as an interpreter. His duties compelled him to be away from his family a great part of the time. 'His wife and daughter lived with her father, old Nwa-yah-ko-se, who testified that he is .one hundred and eighteen yéars old. At the time of the allotment they composed one family; the old man obtained one hundred and sixty acres, the mother eighty, and the child the eighty acres in dispute. Some testimony was introduced to the effect that she died either in the year of the allotment or the year following. The plaintiff was not at home at the death of his daughter, though he testified that he had seen her after the allotment. On the other hand, a number of witnesses testified that the little daughter of plaintiff, Mary Ann, died in 1859, before the allotment was made, and that the Mary Ann who was living in the family of old Nwa-yah-ko-se was his granddaughter by his son Moz-wa. The two Mary Anns were further distinguished in the evidence given, by the name of Mary Ann Smooth-Face, who was the daughter of this plaintiff and Angelica, and Mary Ann Pock-marked, whom defendants claim to be the allottee. There was some testimony tending to show that Mary Ann Pock-marked was not known by the name of Mary Ann until sometime in the year 1866 or 1867.
There was a good deal of conflicting evidence introduced, with no very strong preponderance in favor of either party. The defendants, to establish the death of Mary Ann Nwayah-ko-se, the “Smooth-Face,” in 1859, introduced the records of St. Marys College, (a Catholic institution at St. Marys Mission, Kansas,1) as follows:
“For the year of our Lord 1852, in the thirtieth day of October, I have received the mutual consent aud of matrimony between Edward Meconce and Angelica the daughter of Nowe’y-ko-se before witnesses No-wey-kose and Eyen-abi.
Mouer Gallond, S. J.
“ On the 4th of August, 1853,1 baptized Mary, the daughter of Edward Meconce and Angelica, his wife.
Matjr Gallond, S. J. [Seal.]
“On the 24th day of March, 1859, was buried Mary (Kitchi No-wey-a-kesi os Vegen), about six years of age.
M. Gallond, S. J. [Seal.]
Signed in presence of A. J. Beakley.”
A. Sweese, S. J., certifies under oath that the foregoing is a true aud correct copy of the marriage of Edward Meeonce aud Angelica, the daughter of No-wey-axesi, and the baptismal register of Mary, the daughter of Edward Meconce and Angelica, his wife; also the register of the burial of Mary Kitchi No-wey-a-no-se os Vegen, as the same appears of record.
The record is authenticated in the manner provided for by §§380 and 381 of the civil code. The name Mary appears in the records of baptism and burial, and it also appears therefrom that the babe christened in 1853 would have been, in 1859, of about the age of the child buried; but these statements, taken in connection with the other part of the record, are not sufficient to establish the fact that Mary, the daughter of Edward Meconce and Angelica, Lis wife, who was christened August 4, 1853, is one and the same person with Mary Kitchi No-wey-a-kesi os Vegen, who was buried March 24, 1859.
We cannot say that the words “Kitchi” and “os Vegen” are descriptive in the Indian language, which, being interpreted, might establish the identity; nor is there anything in the record, outside of the register’s 'certificate, that would establish the identity of the babe that was christened in 1853 with the young child that was buried in 1859. Neither is there anything in the certificate of the custodian of the church records that would indicate that this was a register of a family, kept by the church. We can readily perceive that these records of the ’church at St. Marys would have had a great, if not a controlling influence with the jury that tried the case. If there had been any identification of the child who died with the babe who was baptized, the record, if true, would have been conclusive evidence of the fact that Mary Ann, the daughter of the plaintiff, could not have been the allottee.
Eor the error of admitting this testimony, we think the judgment of the court below should be reversed, and so recommend.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
Plaintiff in error, plaintiff below, filed the following bill of particulars in a justice’s court; upon a judgment for plaintiff, defendant appealed to the district court, and there demurred to the bill of particulars, which was as follows:
“Alma Township, Wabaunsee County, Kansas, Plaintiff, Y. Math. Kast, Defendant. — Said plaintiff alleges that said defendant is indebted to said plaintiff in the sum of $10.50, for upon having deposited on the alley of block 9, city of Alma, Wabaunsee county, Kansas, a lot of dirt and earth, which he excavated from his cellar at the time of building his store building. Said defendant was requested to remove said obstruction, but refused to do so, whereupon the compláinant, being road overseer of said road district No. 3, removed said obstruction at his costs; for further explanation, see 'Exhibit A;’ that there is due said plaintiff on said work from said defendant $10.50, which he claims.
Road District No. 3.
By G. Zwanziger, Road Overseer.”
exhibit “a.”
May 22. — Team one day...................................... $3 00
May 22. — Team one-half day................................. 1 50
May 23. — Two teams one day................................. 6 00
$10 50
By consent of both parties the title of said action was amended by correcting a mistake in the name of the party plaintiff by striking out “road district No. 3,” and substituting “Alma township, Wabaunsee county, Kansas,” as plaintiff. The court below sustained the demurrer to such bill of particulars. Plaintiff brings the case here for review. We think the judgment of the court below is correct. The bill of particulars is awkwardly drawn; if it contained a cause of action we would disregard all omissions therein, but it does not state a cause of action against defendant in favor of plaintiff, even crudely. There is no allegation that said city of Alma is in road district No. 3, or that it is within Alma township. It alleges that the overseer of road district No. 3 removed an obstruction from the alley of block nine in the city of Alma, at his own cost, not at the cost of road district No. 3, or the township of Alma. Of course if the city of Alma was not in road district No. 3, or if it was not in Alma township, Wabaunsee county, Kansas, or if Zwanziger volunteered to pay for the removal of said obstruction, the plaintiff herein could not recover as against the defendant.
The plaintiff in error has filed a brief in which it argues an entirely different cause of action from that set forth in its pleadings. We have felt bound simply to pass upon the record as presented to us, without attempting to decide upon the question presented in its brief.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Greene, J.:
Sheila Santana appeals the dismissal of her claims generally alleging negligence, fraud, and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., against Mary Olguin, seller; Joe Danler, realtor; and Tom F. Beard Inspections, LLC (TFB), building inspection company, all in connection with her purchase of residential real estate. The claims against TFB were dismissed based upon language contained in the preinspection agreement; the claims against Olguin and Danler were dismissed based upon the language in the real estate purchase contract. Santana contends that the claims were dismissed prematurely and that the district court erred in construing and applying the language of both agreements. We disagree and affirm the district court.
Factual and Procedural Background
In late February 2005, Santana executed a contract to purchase residential real estate in Wichita from Olguin, whose realtor was Danler. The contract contained a provision for the buyer to elect an inspection of the property for “defects” and a provision that any dispute or claim arising out of the contract be submitted to mediation. Details of these provisions will be set forth below. Santana elected to obtain a property inspection, and she retained TFB for these purposes pursuant to an agreement that contained provisions releasing or limiting liability of the inspection company.
After closing on the property, Santana discovered problems with the property that she contends “were not manifestly evident on visual inspection,” including animal odors and damage, dry rot in wood trim elements, and evidence of past water leakage. Ultimately, she brought an action against all three defendants alleging six claims for relief based generally on negligence, fraud, and violations of the KCPA.
TFB filed a motion to dismiss or for summary judgment in lieu of answer alleging that the provisions releasing or limiting liability that were contained in the parties’ “Pre-Inspection Agreement” entitled it to dismissal. Santana opposed the motion, suggesting that she had not signed the agreement and that the release and limitation of liability provisions should be read “in context with surrounding facts and circumstances.” The district court granted TFB’s motion, and it was dismissed from the suit.
Olguin and Danler answered Santana’s petition and included as a defense that Santana had failed to submit the matter to mediation as allegedly required by the mediation provision in the real estate purchase contract. Sometime after the filing of these answers, Santana offered to mediate and ultimately filed a motion to compel mediation. In response, Olguin and Danler filed motions to dismiss based on Santana’s failure to mediate pursuant to the contract. The district court denied Santana’s motion and granted the motions to dismiss these remaining defendants.
Santana now appeals the district court’s dismissal of her action against all defendants.
Did the District Court Err in Dismissing TFB Based on Language in the Preinspection Agreement?
On appeal, Santana argues that the district court erred in granting TFB’s motion for dismissal or summary judgment based on the unconditional release and limitation of liability contained in the contract between Santana and TFB. Santana argues (1) the contract both releases TFB from liability and limits its liability and is therefore ambiguous and should be deemed unenforceable as a matter of law and (2) Santana should have been afforded a reasonable opportunity to present facts surrounding the agreement given the question of its unconscionability.
Santana and TFB entered into a “Pre-Inspection Agreement” which contained a provision entitled “Unconditional Release and Limitation of Liability.” The agreement signed by the parties obligated TFB to conduct an inspection of the property and also limited the liability that could be incurred by TFB. The contract was signed by Santana’s agent and provided in material parts as follows:
“The COMPANY agrees to conduct an inspection for the purpose of informing the CLIENT of major deficiencies in the condition of the property, subject to the UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY below.
“UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY
“It is understood and agreed that the COMPANY is not an insurer and that the inspection and report are not to be intended or construed as a guarantee or warranty of the adequacy, performance, or condition of any structure, item, or system at the property address. The CLIENT hereby releases and exempts the COMPANY and it agents and employees of and from all liability and responsibility for the cost of repairing or replacing any unreported defect or deficiency and for any consequential damage, property damage, or personal injury of any nature.
“In the event that the COMPANY and/or its agents or employees are found liable due to breach of contract, breach of warranty, negligence, negligent misrepresentation, negligent hiring or any other theory of liability, then the liability of the COMPANY and its agents and employees shall be limited to a sum equal to the amount of the fee paid by the CLIENT to the COMPANY for the inspection and report.
“CLIENT and COMPANY agree that should a court of competent jurisdiction determine and declare that any portion of this Agreement is void, voidable or unenforceable, the remaining provisions and portions shall remain in full force and effect.”
We reject Santana’s ambiguity argument, concluding the agreement is not ambiguous. “The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. [Citation omitted.]” Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). “An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers.” City of Arkansas City v. Bruton, 284 Kan. 815, 832, 166 P.3d 992 (2007). The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. See 284 Kan. at 831-32.
In ruling that the provisions were not ambiguous and otherwise enforceable in this case, the district court relied heavily on Moler v. Melzer, 24 Kan. App. 2d 76, 942 P.2d 643 (1997). We agree that the Moler opinion is sound and is applicable here. A similar pro vision was at issue in Moler, and a panel of our court Held that the provision was clear enough to advise the vendee of its purpose and potential effect and constituted a clear expression of the inspector s to limit it liability. 24 Kan. App. 2d at 77; see also Corral v. Rollins Protective Services Co., 240 Kan. 678, 683-84, 732 P.2d 1260 (1987) (enforcing a similar limitation of liability clause in a service agreement).
Santana argues that the release language is inconsistent with the limitation of liability language, thus making the agreement ambiguous. We disagree.,Although the release language extends to “all liability and responsibility for the cost of repairing or replacing any unreported defect or deficiency and for any consequential damage, property damage, or personal injury of any nature,” the limitation of liability provision applies , broadly to any liability, which could include civil penalties or punitive damages that might otherwise be recoverable under “any other theory of liability.” We do not conclude these provisions are necessarily inconsistent; and therefore they'áre not ambiguous.
With regard to Santana’s alternative argument — that she was precluded from discovering and proving facts that might have established unconscionability of the agreement, we conclude she failed to make the necessary showing to preclude summary judgment as a matter of law. ■
Under Kansas law, “a party who freely enters a contract is bound by it even though it was unwise or disadvantageous to the party, so long as the contract is not unconscionable. [Citation omitted.]” Moler, 24 Kan. App. 2d at 77. The burden of establishing unconscionability is on the party attacking the contract. Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 (1989). Whether a contract is unconscionable under the Uniform Commercial Code or the Kansas Consumer Protection Act is a question of law. Topeka Datsun Motor Co. v. Stratton, 12 Kan. App. 2d 95, 107, 736 P.2d 82, rev. denied 241 Kan. 840 (1987).
Santana argues that she should have been allowed an opportunity to present facts surrounding the agreement which affected its conscionability. Such issues included her out-of-state status, the authority of her agent to sign the agreement, her understanding of the contractual language, and the benefits she could have expected. Santana essentially argues she was not able to set forth elements of various factors for unconscionability because summary judgment was granted, specifically the factor which examines the circumstances surrounding the execution of the contract. Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976)
Santana, however, had an opportunity to present such facts at the time of her response to TFB’s motion for summary judgment. Her response to the motion, however, addressed unconscionability only to this extent:
“Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, [549] P.2d 903 (1976), considered the factors which determine whether contract provisions limiting liability may be unconscionable. Among the relevant factors, are: ‘. . . the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect.’ In the present case, the inspection, at least, in part, was done, because the Plaintiff could not be as personally involved as she might, because she did not negotiate her house deal at arms length in Kansas. The inspection also interfaces with provisions of the real estate purchase contract (Exhibit B). Indeed, both contracts are preprinted, and, not surprisingly, are products of the real estate industry.”
We conclude this response was inadequate to establish unconsionability in a manner to defeat summary judgment. Indeed, Santana had an obligation to present specific facts showing a genuine issue of material fact. See K.S.A. 60-256(e). As TFB points out, Santana presented no evidence, in affidavit or otherwise, of her out-of-state status, her agent’s authority, or her understanding of the contract language. Because of Santana’s lack of presented evidence and assertions, there is no indication of inequality of bargaining power or an indication that she could not have sought a different inspection company if she was dissatisfied with the contract provisions. See Moler, 24 Kan. App. 2d at 79; In re Universal Serv. Fund Tele. Billing Practices, 300 F. Supp. 2d 1107, 1125-1126 (D. Kan. 2003).
Additionally, given the facts suggested by Santana, the release and limitation of liability was not hidden within the agreement but written in relatively plain language and set forth after an all-capital- and-bold heading that clearly and unequivocally signaled the importance of the release and limitation of liability language. See, e.g., Frets v. Capitol Federal Savings & Loan Ass’n, 238 Kan. 614, 622, 712 P.2d 1270 (1986) (finding no unconscionability where, among other things, the relevant provision was “ ‘not buried in a mass of fine print’ ”); Wille, 219 Kan. at 763-64 (where terms and conditions were set out in “clearly legible type” and were “not couched in confusing terms”).
We conclude that the parties’ preinspection agreement was not ambiguous, that its release and limitation of liability language was valid and enforceable, and that Santana failed to adequately demonstrate her unconscionability argument to defeat summary judgment. The district , court did not err in dismissing TFB as a defendant.
Did the District Court Err in Dismissing Santana’s Claims Against the Seller and Realtor Due to Her Failure to Submit the Claims to Mediation Prior to Suit?
Santana next argues the district court erred in dismissing her claims against Olguin and Danler based on Santana’s failure to submit her claims to mediation prior to filing suit. She contends the district court erred in construing and applying the mediation provisions of the real estate purchase contract. The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006).
The mediation provision of the contract provides as follows:
“29. MEDIATION: Any dispute or claim arising out of or relating to this Contract, the breach of this Contract or the services provided in relation to this Contract, shall be submitted to mediation in accordance with the rules and procedures of the Homesellers/Homebuyers Dispute Resolution System. Disputes shall include representations made by the Buyer, Seller, or any real estate broker licensee in connection with the sale, purchase, financing, condition, or other aspect of the Property including, without limitation, allegations of concealment, misrepresentation, negligence, and/or fraud.
“Any agreement signed by the parties pursuant to the mediation conference shall be binding.
“The following matters are excluded from mediation hereunder: (a) judicial or non-judicial foreclosure or other action or proceeding to enforce a mortgage or escrow contract; (b) an unlawful detainer action; (c) the filing or enforcement of a mechanics’s lien; (d) any matter which is within the jurisdiction of a probate court; or (e) violation of Kansas real estate license laws. The filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies shall not constitute a waiver of the right to mediate under this provision, nor shall it constitute a breach of the duty to mediate.
“By signing below, the parties hereby acknowledge receipt of the standard announcement brochure for the Homesellers/Homebuyers Dispute Resolution System, and agree to submit disputes, as described above, to mediation, in accordance with the Homesellers/Homebuyers Dispute Resolution System and rules and procedures of the mediation provider.”
In ruling against Santana, the district court relied on this court’s opinion in Crandall v. Grbic, 36 Kan. App. 2d 179, 138 P.3d 365 (2006). In Crandall, a panel of this court affirmed the dismissal of similar claims against a realtor based on a mediation provision identical to the provision here. Citing the proposition that the law favors reasonable interpretation of contracts, the court found that “[t]o allow the plaintiffs to attempt mediation to avoid summary judgment after defendant had devoted time and money defending their suit is unreasonable.” 36 Kan. App. 2d at 198. The panel further found that “[ajlthough defendant is entitled to summary judgment on all issues because of the plaintiffs’ failure to prove their claims, the district court was correct to grant defendant a summary judgment by reason of plaintiffs’ failure to timely seek mediation.” 36 Kan. App. 2d at 198.
Santana argues on appeal that Crandall does not control because (1) it misconstrued the contract language; (2) in Crandall, the parties had expended far more effort and expense than here; and (3) here the court had a “less harsh” remedy, i.e., ordering mediation prior to discovery. We reject these proposed distinctions and follow Crandall in affirming the district court.
First, we disagree that Crandall misconstrued the contract. We acknowledge that the subject provision does not expressly require that submission to mediation must precede the filing of suit and that it could easily have so provided by insertion of the phrase “prior to filing suit.” Nevertheless, we conclude that this sequence is implied or contemplated when considering the totality of the provision. A material part of the provision is the covenant to submit claims to mediation in accordance with the “Homesellers/Homebuyers Dispute Resolution System” and its rules and procedures. The brochure referenced and delivered with the contract describes the system as an alternative dispute resolution that affords parties an affordable method of “resolving disputes out of court.” Its benefits are described as including “faster than litigation,” “less expensive than litigation,” and “discourages litigation of frivolous claims.” The brochure posits “Frequently Asked Questions,” including: “If a party signs a contract or an addendum that contains a mediation clause, is the party required to mediate if a dispute arises?” The answer given is: “Yes. The signed agreement to mediate is binding, and parties must submit the dispute to mediation. The agreement to mediate does not bind the parties to results that might be achieved during mediation, and parties retain the right to go to court in the event that mediation is unsuccessful.” (Emphasis added.) We conclude from these aspects of the provision that mediation is intended to provide an alternative to litigation and thus creates a condition precedent to Htigation that the parties mediate their disputes. Our conclusion is consistent with case law that has construed contracts with grievance procedures as requiring pursuit of such procedures prior to litigation. See, e.g., NEA—Topeka v. U.S.D. No. 501, 269 Kan. 534, 7 P.3d 1174 (2000); Atterberry v. Ritchie, 243 Kan. 277, 281-85, 756 P.2d 424 (1988); HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003).
Second, we refuse to distinguish Crandall on the basis that here far less effort and expense had occurred when the parties sought to mediate. Although we acknowledge that Santana’s motion to compel mediation was filed earlier in the litigation than in Crandall, we decline to specify some criteria for the point at which the parties have gone too far to mediate. As noted by the panel in Crandall-. To allow the plaintiffs to attempt mediation to avoid summary judgment after defendant had devoted time and money defending their suit is unreasonable.” 36 Kan. App. 2d at 198. This consideration applies here because Santana filed a seven-page six-count petition against multiple defendants requiring response by answer or motion, the TFB motion proceedings involved all parties in briefing and argument, discovery vehicles had been drafted and served, and all this litigation activity occurred prior to the suggestion of mediation. There is no middle ground; mediation cannot effectively and fully serve its purpose of alternative resolution unless attempted prior to suit.
Finally, we understand Santana’s last argument as suggesting that the district court abused its discretion in dismissing the lawsuit rather than considering “a less egregious remedy.” Judicial discretion is abused when a 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 the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). We are aware of no authority in Kansas, nor does Santana cite any, that suggests that it may be an abuse of discretion to dismiss an action pursuant to K.S.A. 60-212 or K.S.A. 60-256 unless less egregious alternatives have been explored. There was no abuse of discretion in the dismissal of Santana’s claims under these circumstances.
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Meyer, J.:
This is an appeal by Charles Haas (petitioner), the stepfather of Della Marie Slemp, a minor, from an order of the Linn County District Court denying his petition to be appointed guardian and conservator of Della. The Linn County District Court transferred venue to Franklin County.
The facts are not in dispute. Della was born to Melvin Slemp and Ida Slemp on November 9, 1974. Nine months later, Melvin Slemp died. In early 1976, Ida Slemp married petitioner. They had two sons, Thomas Haas and Bradley Haas. Ida was killed in October 1983. Petitioner remarried in December 1983. At that time Della resided with petitioner, his new wife, Della’s two half-brothers, and two other children unrelated to Della.
On March 9, 1984, petitioner filed a petition for appointment as Della’s guardian and conservator. A guardian ad litem was appointed and petitioner was awarded temporary custody of the child.
On March 16, 1984, Della’s paternal grandparents, Gerald and Grace Slemp, filed an objection to the appointment of petitioner as Della’s guardian and conservator. On May 4, 1984, the Slemps petitioned the court to change temporary custody of Della from petitioner to C. B. and Charlotte Sanderson, Della’s paternal aunt and uncle.
A hearing was held on May 11, 1984, on the motions and petitions filed by the Slemps. The court placed temporary custody of Della with the Sandersons and ordered a thorough battery of psychological or psychiatric examinations regarding the child, as well as home study reports of all parties by the S.R.S.
On April 11,1985, petitioner’s petition to be appointed Della’s guardian and conservator was heard. At that time Carol Roloff, Della’s maternal aunt, and her husband, Tim Roloff, intervened to request custody of Della.
After hearing all the evidence, reading the psychological evaluations and home study reports, and after visiting with Della, the court awarded custody to C. B. and Charlotte Sander-son as joint guardians and conservators. Petitioner has appealed.
Petitioner first contends the trial court erred in failing to admit into evidence the last will and testament of Ida G. Haas, the child’s natural mother, which nominated petitioner to serve as guardian and conservator of her minor child.
At the April 11,1985, hearing, the Roloffs called petitioner as a witness. Counsel for the Roloffs attempted to admit into evidence the will of Ida Haas. One of the clauses in the will read as follows:
“In the event my daughter, Della Marie Slemp, is a minor or under legal disability at the time of my death, it is my request that the Court admitting this will to Probate appoint my husband, Charles L. Haas, as her guardian and conservator.”
As the will made no mention of the Roloffs, the Roloffs were apparently offering the will into evidence to illustrate to the court that Ida did not want guardianship of her daughter to go to the Sandersons.
Counsel for the Sandersons objected to admission of the will for the reason that it had never been admitted to probate, and was thus ineffectual for all purposes. The court sustained the objection. The court did, however, at a later point in the hearing, allow into evidence testimony by Carol Roloff that it had been her deceased sister’s wish to have petitioner appointed guardian of Della in the event of her death and that she had seen Ida’s will specifying that wish. The court was thus apprised of the contents of the will even though the will was not actually admitted into evidence.
On appeal, petitioner contends it was error for the trial court to refuse to admit Ida’s will into evidence. Petitioner’s position is that, although a nonprobated will may be ineffectual to pass property, it remains effective as an instrument appointing a guardian and conservator. The precise issue before this court is not therefore whether a nonprobated will is admissible for any evidentiary purpose, but rather is whether a nonprobated will is still effectual as an instrument appointing a guardian or conservator. No Kansas cases have addressed this issue.
K.S.A. 59-3004 provides in part that “[a] surviving natural guardian, by last will, may nominate a guardian or conservator, or both, for any of such guardian’s minor children . . . .” The guardian so nominated shall be appointed by the court if found to be a fit and proper person at a hearing held pursuant to K.S.A. 59-3013.
Petitioner contends that nowhere does Article 30 of Chapter 59 of the Kansas Statutes Annotated require that a will be probated to place into effect that portion of a will nominating a guardian or conservator. Petitioner acknowledges that K.S.A. 59-616 mandates probate of a will to be effectual to pass real or personal property, but contends the absence of a similar position relative to the guardianship provisions of the statutes indicates that probate is unnecessary. All that is required, posits petitioner, is that “a will” be presented to the court. We do not agree.
K.S.A. 59-3004, allowing a natural guardian to nominate a successor guardian by will, inherently requires that that will have been probated.
A will is an instrument by which a person makes a disposition of his property, to take effect at his decease, and is, by its very nature, ambulatory and revocable during his life. K.S.A. 59-601 et seq. There must be some disposition of property by the testator in order for the paper to amount to a will, and it must be executed as required by the statute. K.S.A. 59-601, -606. Therefore, K.S.A. 59-606, in requiring that wills (except nuncupative ones) to be effective must be in writing, signed by the testator or some person in his presence and by his direction, and be attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator, covers all wills. Unless these requisites of the statute are complied with, the instrument is not a will at all within the purview of the statute and “has no effect other than potentiality . . . .” Pee v. Carlyle, 120 Kan. 200, 203, 243 Pac. 296 (1926).
Without probate, an instrument purporting to be a will has not been verified. Without probate, no determinations of testamentary capacity, freedom from undue restraint, or due execution have been made. Without probate it has not been determined that the instrument is indeed the “last” will of the testator and that no further wills are in existence revoking the document submitted to the court.
In sum, based on the above it is apparent that K.S.A. 59-3004 inherently requires that a will have been probated before it is effective for appointment of guardianship purposes. This conclusion is in accord with decisions reached in other states. See Annot., 67 A.L.R.2d 803, 809. In Kansas, therefore, a will is not effective to pass real or personal property, or to nominate guardians or conservators unless the will has been admitted to probate. The petitioner’s argument is without merit.
Petitioner also contends, that even though the will of Ida Haas was not formally allowed into evidence, the court did admit testimony concerning Ida’s nomination of him as Della’s guardian in her will, and thus the court was bound by the standards of K.S.A. 59-3004 to appoint him as guardian unless the court found that he was not a fit and proper person.
The court’s decision not to allow the unprobated will of Ida Haas into evidence removed any requirement of the court, pursuant to K.S.A. 59-3004, to pass on the fitness or unfitness of petitioner as the purported nominee to be the guardian and conservator of Della Slemp.
Finally, petitioner contends the trial court abused its discretion in finding that the best interests of the minor child would be served by placing her with her aunt and uncle, the Sandersons, and not with petitioner.
Once the district court properly determined that the unprobated will of Ida Haas was ineffectual to nominate petitioner as guardian and conservator of Della, the matter of who was to become guardian and conservator was within the sound discretion of the district court. K.S.A. 59-3011 and -3014. In the instant case, the court appointed the Sandersons as guardians and conservators of Della. This court could only reverse the decision of the district court if it found an abuse of discretion. Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984), quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
Pursuant to K.S.A. 59-3011, the district court ordered psychological evaluations of Della and home study reports of petitioner, the Sandersons, and the Roloffs. At trial the court received evidence in the form of testimony and photos of the lifestyle and home environment of the Roloffs. The court had before it the results of these evaluations and reports, as well as an SRS case history of its contacts with petitioner, before the instant case ever began.
The evidence before the court revealed that petitioner had a history of disciplining Della with such severity that bruises were often left. Petitioner was found to be “overwhelmed” with the prospect of handling the children under his care. Since Ida Slemp’s death, Della has been moved to three different grade schools. The social worker investigating petitioner recommended Della not be left with him.
Evidence regarding the Roloffs was that they had recently purchased five acres of land and placed a mobile home on it. The Roloffs have a combined gross monthly income of $1,280. The Roloffs have had only intermittent contact with Della since her birth.
Regarding the Sandersons, evidence revealed they live in a four bedroom house in Ottawa, Kansas, and that since Della came to live with them she has improved socially, educationally, and emotionally.
While the evidence of record regarding the various parties seeking guardianship of Della was not all that thorough despite the psychological evaluations and home study reports, it was sufficient in scope to sustain the position adopted by the trial court that the Sandersons should be made joint guardians and conservators of Della. There was no abuse of discretion.
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Davis, J.:
The defendant, John Lee Parsons, appeals his jury conviction of felony theft, K.S.A. 21-3701. He contends that the trial court erred in failing to instruct the jury on misdemeanor theft and in denying his motion for judgment of acquittal.
The trial judge was required to instruct the jury on the lesser included offense of misdemeanor theft only if there was evidence presented at trial which would reasonably support a conviction for misdemeanor theft. K.S.A. 1985 Supp. 21-3107(3); State v. Long, 234 Kan. 580, Syl. ¶ 3, 675 P.2d 832 (1984).
Trial evidence establishes that the defendant unlawfully took over $100 which belonged to his employer, Ardan’s, Inc. Contrary to defendant’s contention, the sales tax did not belong exclusively to the State of Kansas thereby making the value of the property pilfered from the defendant’s employer $99.97. In our criminal code, “owner” is defined as “a person who has any interest in property.” (Emphasis added.) K.S.A. 21-3110(13). Clearly, Ardan’s had an interest in the sales tax. Pursuant to K.S.A. 79-3603, Ardan’s was required to pay 3% of its gross receipts to the State of Kansas for the privilege of engaging in retail sales. Further, K.S.A. 79-3604 provides:
“The tax levied hereunder shall be paid by the consumer or user to the retailer and it shall be the duty of each and every retailer in this state to collect from the consumer or user, the full amount of the tax imposed by this act . . . and such tax shall be a debt from the consumer or user to the retailer, when so added to the original purchase price, and shall be recoverable at law in the same manner as other debts . . . .”
The trial judge did not err in refusing to instruct on misdemeanor theft.
This court’s scope of review of defendant’s claim that the trial court erred in denying his motion for judgment of acquittal is well established.
“A trial judge, in passing on a motion for judgment of acquittal, must determine whether upon the evidence — giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact therefrom — a reasonable mind or a rational trier of facts might fairly conclude guilt beyond a reasonable doubt. [Citations omitted.] On appellate review, the question presented is whether all of the evidence adduced at the trial, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the accused guilty beyond a reasonable doubt. [Citations omitted.] Appellate courts look only to the evidence in favor of the verdict; they do not weigh the evidence; and if the essential elements are sustained by any competent evidence, the conviction stands. [Citation omitted.]” State v. Fosnight, 235 Kan. 52, 53, 679 P.2d 174 (1984).
The evidence of record under the above standard requires affirmance of this conviction. The consumer testified that she went to Ardan’s to purchase a weight set and that a middle-aged white male waited on her. The man took her money, $103.00, and put it in his pocket without running the transaction through the cash register. In lieu of a cash register receipt, the man gave her a handwritten sales receipt. The handwriting on the sales receipt matched the known handwriting of the defendant. While she was unable to specifically identify the defendant, the defendant, a middle-aged white male, was employed on the day in question by Ardan’s. When the transaction came to the attention of Ardan’s manager, an investigation was conducted. Defendant admitted selling the set of weights and pocketing the $103.00, but his further explanation at trial, in light of all other evidence, was at best tenuous. The $103.00 was not accounted for.
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Miller, J.:
The defendant has appealed from his conviction on a charge of aggravated failure to appear. The facts are not in dispute, and for purposes of this appeal, the parties have stipulated as follows.
The State’s evidence was that defendant drove a car in which he and a codefendant fled after having thrown a pumpkin through a window. The victim estimated the damage to his property to be in excess of $150. Defendant was charged with felony criminal damage, in violation of K.S.A. 1985 Supp. 21-3720 and K.S.A. 1985 Supp. 21-4501(e), and was released on bond.
After preliminary hearing and arraignment, defendant was released on bond and ordered to appear before the court on January 23, 1985. Defendant failed to appear on that date, how ever, and his bond was ordered forfeited and a bench warrant was issued for his arrest.
During the time the bench warrant was still outstanding, the prosecutor, upon learning that the replacement cost of the broken window was slightly less than $150, amended the complaint against the codefendant to a misdemeanor charge, and the codefendant pled guilty to the misdemeanor.
Defendant was arrested and returned to the jurisdiction of the court on March 23, 1985, by the professional surety on his bond. The present case, charging aggravated failure to appear under K.S.A. 21-3814 and K.S.A. 1985 Supp. 21-4501(e), was filed on May 16, 1985. Subsequently, defendant was tried on the underlying criminal damage case, after the complaint was amended to a misdemeanor charge, and was convicted of the misdemeanor.
On August 6, 1985, defendant was then tried on the charge of aggravated failure to appear. The court overruled the motion of defendant’s trial counsel to dismiss the charge based upon the reduction of the underlying charge to a misdemeanor, finding that the language of the statute was plain and unambiguous, and specifically finding that defendant had been “charged with a felony and had been released for appearance” before the district court. Defendant was convicted and sentenced to a minimum term, and probation was denied. Defendant thereafter appealed the court’s ruling on his motion to dismiss.
Defendant has raised three issues. First, he contends that the complaint on the charge of aggravated failure to appear is fatally defective and did not confer jurisdiction over him because it omits an essential element of the offense charged, i.e., that defendant willfully incurred the forfeiture of his appearance bond.
K.S.A. 21-3814 provides:
“Aggravated failure to appear is willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within thirty (30) days following the date of such forfeiture by one who is charged with a felony and has been released on bond for appearance before any court of this state.”
The complaint in this case, in relevant part, reads:
“VINCENT EDWARD DeATLEY did then and there unlawfully, willfully and feloniously fail to surrender himself within 30 days following the forfeiture of an appearance bond in Johnson County, Kansas, District Court Case # K-47608, in which he was charged with a felony and had been released on bond for appearance on the 23rd day of January, 1985.” (Emphasis supplied.)
Defendant argues that the complaint does not allege a willful forfeiture of his appearance bond, but rather alleges only a willful failure to surrender following a forfeiture, whether willful or not.
The established rule is that, in a felony action, the indictment or information is the.jurisdictional instrument upon which the accused stands trial. The sufficiency of the information is governed by the guidelines of K.S.A. 22-3201(2), but it must include the essential elements of the crime charged; otherwise it is fatally defective.
In State v. Jackson, 239 Kan. 463, 465-66, 721 P.2d 232 (1986), the court stated:
“ ‘Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge. However, if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective.’ ”
The complaint in this case clearly does not charge defendant specifically, in so many words, with “willfully incurring a forfeiture” of his appearance bond. The question, then, is whether, assuming all of the allegations of the complaint are true, the defendant has committed the offense charged.
The test of “willfulness” under the statute was stated in State v. Rodgers, 225 Kan. 242, 247, 589 P.2d 981 (1979):
“To establish willfulness it is sufficient if the State prove the defendant failed without just cause or excuse to surrender himself within thirty (30) days following the forfeiture of his appearance bond.”
The court further stated:
“When the State has introduced evidence that a defendant entered into a personal recognizance requiring his appearance in a court on a day certain, as in the present case, that he thereafter failed to appear, and that following the forfeiture of the appearance bond he failed to surrender himself within thirty (30) days thereafter a prima facie case of willfulness has been established by the State.” State v. Rodgers, 225 Kan. at 247.
We believe the language used in the complaint fairly apprised the defendant that the State was charging that defendant, in forfeiting his bond by failure to appear and in failing to surrender himself within 30 days thereafter, acted willfully and unlawfully in violation of the statute. The defendant was sufficiently apprised of what he had to be prepared to meet, and the complaint, while not a model of exactness, was not fatally defective.
Defendant further argues that “release on a felony charge” is an essential element of aggravated failure to appear, and the court’s omission of this element from instruction No. 10 was clearly erroneous.
Instruction No. 10, given by the court, was as follows:
“The defendant has been charged with the crime of aggravated failure to appear. The defendant [pleads] not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had been released on an appearance bond to appear before a court;
“2. That the defendant willfully failed to appear before the court at the time requested;
“3. That the defendant’s appearance bond was forfeited;
“4. That the defendant willfully failed to surrender himself within 30 days following the forfeiture of his appearance bond; and
“5. That this act occurred on or about the 23rd day of January, 1985, in Johnson County, Kansas.”
This instruction follows PIK Crim. 2d 60.15, which sets out the same instruction for both aggravated failure to appear, 21-3814, and failure to appear, 21-3813. The only difference between the two crimes as set forth in the statutes is that failure to appear is committed by one charged with a misdemeanor and is a misdemeanor'offense, while aggravated failure to appear is committed by a person charged with a felony and is a felony offense.
A committee note to PIK Crim. 2d 60.15 states that the instruction contains all the necessary elements for use in both classes of cases. However, since failure to appear becomes “aggravated” only if the charge involved is a felony, this is an essential element of the charge. The better practice would be to include this element in the instruction given by the court.
Defendant does not contend that an objection to the instruction was made at the trial or that an additional instruction was requested. He argues only that it was “clearly erroneous.”
As was stated in State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977):
“When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is 'clearly erroneous.’ An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.”
Can such a firm conviction be reached here? We think not. The only evidence before the jury was undisputed that, at the time defendant’s bond was forfeited for failure to appear, he was on release on a felony charge. Nothing in the record supports a misdemeanor failure to appear charge. The failure to instruct the jury that it had to find that defendant was charged with a felony when he failed to appear was not “clearly erroneous.” State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976).
Defendant also contends that he was wrongfully convicted of aggravated failure to appear since the underlying charge on which he was released had been reduced to a misdemeanor. He argues that the underlying charge was set as a felony as the result of an inflated estimate of damages, and that he was released on bail for a felony offense although no felony had actually been committed.
K.S.A. 21-3814 provides that aggravated failure to appear occurs when “one who is charged with a felony” fails to appear. The statute is clear and unambiguous and indicates that the offense charged controls.
The Judicial Council note accompanying this section is instructive. It reads:
“Bond jumping was not an offense under the former statutes of Kansas. However, such provisions are common among the laws of other states. Also, there is a current trend in the United States toward release on one’s own recognizance.
“Thus, it seems appropriate to provide a sanction to secure the attendance of the accused who is released without surety ....
“The section is based, in part, on Illinois Criminal Code, 32-10.”
The question of whether the outcome on the underlying offense has any effect on a charge of bond jumping has never been addressed in this state. Defendant relies on People v. Prather, 16 Ill. App. 3d 376, 306 N.E. 2d 361 (1974), to support his argument.
In Prather, the defendant was indicted and convicted for failure to appear on a charge of aggravated assault which the State claimed was a felony charge. On appeal, the court held that aggravated assault, as defined in the statute, was not a felony but was a misdemeanor. The court went on to say:
“The indictment here was sufficient to charge the offense of violation of bail bond. It was insufficient, however, for the imposition of the enhanced penalty for violation of a bail bond while the defendant is out on bail on an offense that is a felony.” 16 Ill. App. 3d at 378.
The court did not address the issue as to whether prosecution of a charge of bond jumping was dependent on the outcome of the underlying offense on which the bond was issued. It simply held that where the underlying offense was defined by statute as a misdemeanor, the State could not claim it was a felony and thus seek to impose on the defendant the enhanced penalties of aggravated failure to appear. Nor did the court purport to modify or reverse its prior decision in People v. Minefee, 14 Ill. App. 3d 796, 303 N.E. 2d 591 (1973).
In Minefee, the defendant was convicted on a charge of bail jumping. Subsequently, his conviction on the underlying charge of possession of marijuana was reversed on appeal because the statute had been held to be unconstitutional. He then appealed his conviction for bond jumping, citing the reversal of the underlying charge. The Illinois court found the argument unpersuasive and upheld the conviction, stating, “The language of the . . . bail jumping statute makes it clear that the Legislature intended to create a separate offense for violation of the conditions of a bail bond apart from the initial offense for which the bond was issued.” 14 Ill. App. 3d at 797.
Again, in People v. Holcombe, 89 App. Div. 2d 644, 453 N.Y.S. 2d 126 (1982), where the defendant attacked his bail jumping conviction on the grounds that his conviction on the underlying charge had been reversed, the court held:
“The crime of bail jumping is committed when a person who is released by court order upon bail or his own recognizance fails to make a scheduled court appearance within a specified time .... As such, it is a crime separate and distinct from the predicate charge which gave rise to the bail jumping offense. Defendant’s ultimate success on the predicate charge does not in any way excuse or justify his failure to obey a court order directing his appearance in connection therewith.”
Defendant’s petition for relief was denied. See People v. Davis, 168 Misc. 511, 5 N.Y.S. 2d 411 (1938).
In an analogous situation involving escape from a county jail while awaiting trial on another offense, on which the defendant was subsequently acquitted, the defendant, in an early Kansas case, presented the same argument. In rejecting the argument, Justice Valentine, speaking for the court, held:
“When a party is in legal custody, and commits an escape, we do not think that it depends upon some future contingency as to whether such escape is an offense or not.” State v. Lewis, 19 Kan. 261, 265 (1877).
The same reasoning is applicable here. The statute was enacted to make bond jumping a criminal offense in itself, separate and distinct from the underlying offense on which the bond was issued. As such, the offense is not dependent upon the outcome of the underlying charge.
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Opinion by
Holt, C.:
The plaintiff made application to the judge of the Cloud district court for an alternative writ of mandamus against the defendant, which was granted, and the writ issued. Afterward, upon a trial, it was adjudged by the district court that a peremptory writ of mandamus be refused. The plaintiff below, the plaintiff in error here, asks for a review and reversal of the judgment.
There was quite an amount of evidence introduced, and on some questions there is a serious conflict, but from the testimony, we believe these facts are fairly established: This plaintiff was plaintiff in an action wherein the Clyde Mill Co. was defendant, brought in the court of A. B. Chaffee, a justice of the peace for the county of Cloud. A change of venue was taken to the court of B. R. Anderson, the defendant herein, another justice of the peace of the same county. On the day agreed upon for the trial, both parties appeared, and an application was made for a continuance; at first it was suggested that the case be set for trial at 10 o’clock A. m. on February 11, 1886; but before an agreement was made, the agent of the plaintiff, Barons, suggested that the cause be set for 2 o’clock p. M., instead of 10 o’clock A. M. After a little further talk it was agreed that the cause be set for trial at 1 o’clock on that day, in order that witnesses from the city of Clyde, in the same county, might reach the place of trial by the noon train. The justice of the peace in putting down the time of the adjournment upon the docket, made an entry that might be read either 10 o’clock or 1 o’clock. A subpena was written out by Mr. Sturges, attorney for the' plaintiff, in which the time of trial was stated to be 1 o’clock p. M. Upon the 11th day of February aforesaid, Mr. Sturges, the leading attorney for the plaintiff, was absent from the county, and she secured the services of L. J. Crans, Esq., an attorney who had no knowledge whatever of the agreement of the time of the adjournment. Mr. Crans, at the suggestion of the plaintiff, went to the office of the justice a little after ten, and announced himself ready for trial, and proceeded to try the case, after waiting one hour, and obtained a judgment of $300 damages and $31 costs against the Clyde Mill Co. J. W. Sheafor, who was an attorney with Mr. Sturges at the commencement of the action, appeared also as attorney, upon the 11th day of February, as shown by the docket, although he did not actively participate in the trial. ■ During the progress of the trial Mr. Sheafor went from ’Squire Anderson’s office to ’Squire Chaffee’s, before whom the action was commenced, to examine some items of costs connected with the case. On his way back he met Mr. Laing, attorney for the defendant, who had been to his office to ask him if he wanted to try the case that afternoon on account of the absence of Mr. Sturges. Mr. Sheafor replied that he thought Mr. Crans had already obtained a'judgment, and stated that Mr. Crans was the active attorney in the case. He told Mr. Laing at this time that he had had the impression that the case was adjourned until one o’clock. Mr. Laing told him he should be on hand at that time. At one o’clock Mr. Laing appeared and filed his motion to set aside the judgment, and supported it by affidavit. During the time that these proceedings were being had before ’Squire Anderson, Mr. M. V. B. Sheafor, partner of the Mr. Sheafor who appeared in the case, came in; he was told by Mr. Laing that he was taking steps to set aside the judgment. Mr. Sheafor replied that they had nothing further to do with the case. The justice of the peace set aside the judgment, and set the case for trial for March 10th, at one o’clock P. M. Mr. Laing, the attorney for defendant, did not notify Mr. Crans of the motion, but on the following day Mr. Crans came in and had a long discussion with the justice about the time that the case whs set for trial, whether it was ten o’clock A. M. or one o’clock P. M. After ten days Mr. Crans filed a precipe for an execution; the justice refused to issue one; this action was brought to compel him to do so.
We have made a full statement of the facts, so that there can be no mistake in regard to the scope of the opinion filed in this case. Plaintiff in error contends that the judgment rendered by the justice of the peace was a valid, subsisting one, but that if there was irregularity in obtaining it, at most it was only voidable and not void, and could not be set aside in the justice’s court, but it must be done, if at all, by a reviewing court. The defendant claims that it was a void judgment which could be vacated at any time, and cites the case of Briggs v. Tye, 16 Kas. 285. This is not a case parallel with the one cited. There the summons was issued on the 10th day of July, and was made returnable on the 14th. Judgment was rendered on the 10th, the day the summons was issued. It is held in that case that the judgment was void because the justice of the peace had no jurisdiction over the defendant. In this case, however, both plaintiff and defendant had appeared in court, and the justice had exercised jurisdiction by continuing it.
That there was an irregularity in rendering the judgment before the hour set for trial, there can be no question. The judgment was voidable at least, and could have been set aside on motion, after proper notice. A justice before whom a cause has been tried has the power to vacate a judgment and grant a new trial, for the same reasons, in like causes, as provided in the code of civil procedure, §3, ch. 152, Laws of 1885; (§110, eh. 81, Compiled Laws of 1885.) By the provisions of the code, a judgment may be vacated because of its rendition before the action stood regularly for trial. (Civil Code, § 569.)
But the plaintiff further says, while not conceding the authority of the justice to vacate the judgment rendered in this cause in any event, that the defendant, in the action of Barons v. Clyde Mill Co., did not give the plaintiff the reasonable notice provided for by §111, chapter 81, Compiled Laws of 1879; and no such notice having been given, the order vacating the judgment was coram non judice, and therefore void. "We believe the plaintiff had sufficient notice, for the reason that the proper time to have tried this cause was 1 o’clock p. m., February 11th, and she should have been at the trial at that time. That time was first set at the suggestion of the agent of the plaintiff, who was a witness also at the trial at 10 o’clock. It was fully understood by the attorney for the plaintiff, who was absent, and it was the impression of one of the attorneys for the plaintiff, who was an attorney at the time the contin uance was obtained, though not present at that time, and was also present as attorney for plaintiff during part of the trial at 10 o’clock. The entry of the hour of trial at 10 o’clock was a mistake, and was a mistake that the plaintiff knew, or ought to have known. The knowledge of her agent who was present, and the positive knowledge of her attorney who was absent at the trial, and the impression of one of the attorneys at the trial, is certainly enough to establish the presumption that she knew that the proper time for hearing the cause was 1 o’clock p. m. instead of 10 o’clock A. m. Again, after the judgment was rendered and before 1 o’clock, an attorney for the defense notified one of the attorneys for the plaintiff that he should be on hand at 1 o’clock to attend to the case; and during the time that he was actually engaged in the preparation and hearing of the motion'for a new trial, he notified the partner of one of the attorneys, who was present in the morning, that he was having the judgment vacated.
It is worthy of note, that in the controversy in the district court whether the action of Barons v. The Clyde Mill Co. was set for trial at 10 o’clock A. M. or 1 o’clock p. m., neither the plaintiff nor her agent was called upon to give any evidence as to their knowledge of the hour of trial.
We think if the mere mistake of entering erroneously upon the justice’s docket the time when an action would have been for trial, is sufficient to empower the justice’s court to try it and render judgment which could not be set aside except in a ■direct proceeding, the same justice’s court would have been authorized under the notice shown to have been given this plaintiff, to vacate its former judgment, grant a new trial, and thus coi’rect its own mistakes. The order of the justice’s court vacating its former judgment and granting a new trial, now appears to be a valid and subsisting judgment. It has never beeix reversed, modified, or appealed from. It was rendered upon notice, and cannot therefore be attacked or questioned in this proceeding. If it is valid, it follows as a matter of course that the judgment of the district court is correct. By this order of the justice granting a new trial, the plaintiff was placed in the same condition she was in before the rendition of the judgment prematurely; she has lost no rights, nor has she gained any advantages, by the mistake made by the justice. Every principle of fair dealing and the proper administration of justice was sustained by the decision of the trial court in refusing the peremptory writ of mandamus.
We believe in the orderly administration of justice, and believe that uniform and proper rules are necessary in conducting the courts, and would be the last- to infringe upon or impair them, yet it is with pleasure that we brush aside the technical cobwebs that have been spun in this case. We are satisfied that by this decision this plaintiff and the Clyde Mill Co. will each have its day in court, and an opportunity to have their differences fairly tried upon their merits. If the judgment rendered in favor of the plaintiff in the justice’s court had been sustained, the Clyde Mill Co. would have been deprived of that right without fault or negligence on its part.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On May 8, 1886, E. D. Parker was convicted and sentenced to the penitentiary of the state at hard labor for the term of ten years, for attempting to commit the offense of killing his wife, Kate Parker. On November 10, 1886, he died, in the penitentiary. This case is pending in this court as to the liability of his estate for the costs of the prosecution.
The information filed in the case contains two counts, the first averring the attempt to commit the offense of killing Mrs. Kate Parker, and the second the attempt to commit the offense of killing her daughter, Ollie Elenner. Upon the trial, the defendant was found guilty on both counts. Sentence, however, was pronounced against the defendant upon only the first count of the information, and the second count thereof, at the instance of the county attorney, was dismissed.
Upon the trial, Frank Dunn testified on the part of the prosecution in substance that on the 2d day of March, 1886, in Abilene, Dickinson county, the defendant agreed to pay him twenty-four dollars to go to Beloit and fire five shots from a revolver into a window in a house in that city, and that defendant showed him a diagram which located the bouse, and explained, by means of a window in the vicinity ■of the place where they were standing, just how he wanted the pistol held and the shots fired; that at the time of this conversation he told defendant he would do the shooting, and that defendant gave him the diagram and showed him the revolver he was to use, and that he and defendant on the same evening went to the city of Beloit on the train, arriving about seven o’clock p. M.; that upon such arrival the defendant gave him the revolver and showed him the house and the window; and that he did some shooting in front of the windows.
Mrs. Kate Parker testified that she was the wife of defendant, and that Ollie Flenner, the girl named in the second count of the information, was her daughter, aged seven years; that she was married to defendant in May, 1885, and lived with him until October of that year, when they separated; that at the time she married defendant she and Ollie had real estate in Beloit, of the value of about seven thousand dollars, which they had inherited from her deceased husband, George Flenner; that while defendant lived with her he wanted to control this property, and that they had trouble about such property a number of times; that defendant charged her with being criminally intimate with Dr. Guibor and other men, and with committing an abortion in his absence; that on the night of March 2, 1886, she and Ollie were sleeping in a bed in front of the window which Dunn said he was to shoot into, and in front of which he did shoot three shots from a revolving pistol given him by Parker.
The contention is, that two distinct felonies were charged in the information, and therefore that the trial court committed errors in not quashing the information or compelling an election thereon. In our view of the case, it is uot necessary to decide whether separate and distinct offenses were charged in the information. It is said, however, in Bishop’s Criminal Practice, volume 1, §437, “that a count in an indictment charging a man with one endeavor to procure the commission of two offenses, is not bad for duplicity, because the endeavor is the offense charged.” If this rule applies, Parker committed but one attempt, although the act of the agent he selected might have resulted in the death of both Mrs. Parker and her daughter, if the agent had carried out the orders given.
An information may be nol. pros, after a conviction and before judgment. In this case the second count of the information was nol. pros, by the county attorney before judgment; thereby leaving the defendantpunishable for the offense charged in the first count only. (31 Me. 592; Commonwealth v. Tuck, 20 Pick. 356.)
One argument which lies against duplicity in a criminal pleading is, that it subjects the defendant to inconvenience and danger by requiring him to prepare himself to meet several charges at the same time. Another is, that the prosecution in a criminal case ought not to have the advantage of proving to the jury several acts entirely disconnected with each other, but each tending to prove the defendant guilty of a separate offense, and thereby creating in the minds of a jury the conviction that the accused is a bad man generally and likely to be guilty. Therefore, in a case of felony it is the rule that where the information or indictment charges several entirely distinct felonies, the court will either quash or compel the prosecutor to elect. But in this case, even if two offenses are charged in the information, yet as they spring out of the same transaction, and as the proof on both counts was precisely the same, no injury could possibly have accrued to the defendant. (The People v. McKinney, 10 Mich. 54.) No evidence was admitted to sustain the second count of the information not pertinent to the allegations of the first count. “ On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Crim. Codej § 293.)
The defendant was not prejudiced by the refusal of the court to instruct the jury further on the question of venue. . The instructions given sufficiently covered that matter. If the defendant was guilty of the attempt to kill his wife, he committed that offense in Mitchell county. The evidence fully sustains this. It is true that the defendant employed Frank Dunn, at Abilene, to do the shooting at Beloit, and there exhibited to him a diagram so that he could locate the dwelling at Beloit into the window of which he was to fire. But the defendant followed up his solicitation and employment of Dunn by going with him to Beloit, in Mitchell county; by paying his railroad fare from Abilene to Beloit; by giving to Dunn at Beloit a loaded revolver with which to do the shooting; by pointing out the house into which the shooting was to be done; by paying Dunn twenty dollars after the shooting; and by directing him how to escape from Mitchell county, after he had been informed by Dunn that he had done the shooting as directed, and that his wife and daughter were hurt.
There are other errors relied upon, but after a careful examination of them, we find nothing prejudicial; therefore, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was tried in the Atehison district court, at the March term, 1886, upon the following agreed statement of facts:
“The bill is admitted, the last item of which is dated February 15, 1874. It is also agreed that Mr. Conlon himself left here in the first week in May, 1876, and went to New York for the purpose of disposing of some property, and intended at that time to return; that his family remained here until the 20th of December, 1876, living on a homestead just west of Atchison. Conlon returned here on December 10, 1881, and remained until February 10, 1882, but did not bring his family. He then returned to New York, and he and his family returned here March 6,1885. Suit was commenced June 10, 1885. He has been here ever since March, 1885. He returned on December 10, 1881, for the purpose of settling up some matters with the railroad company in reference to right-of-way through his place. It is also agreed that during this time he had property in the jurisdiction of the court. The family remained here from the time Conlon left in May, 1876, until December 20, 1876. After returning with the family March 6, he has continuously resided on the homestead up to now.”
There is but a single question in the case, and that is, whether the statute of limitation has run against the claim of the plaintiff, the defendant in error, in this court. Section 21 of the civil code, Compiled Laws of 1879, provides:
“If, when a cause of action accrues against a person, he be out of the state, . . . the period limited for the commencement of the action shall not begin to run until he comes into the state, . . . and if, after the cause of action accrues, he depart from the state, . . . the time of his absence . . . shall not be computed as any part of the period within which the action must be brought.”
The statute has reference to the absence personally of the defendant from the state. By the agreed statement of facts he had not been in the state altogether three years since the date of the last item in plaintiff’s claim, before the commencement of this action. In construing the statute of limitation, general words are to have a general operation, and the fact whether his residence was changed, or whether he had property within the state, is not to be decided in this action, but simply whether he himself was within the state more than three years, or less than three years, after the last item of the bill was dated. We think the case of Lane, Adm’x, v. Bank of Metropolis, 6 Kas. 74, is decisive of this case.
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action to recover the possession of certain personal property in the possession of and claimed by the defendant. Plaintiff’s petition was in the usual form in replevin. The answer of the defendant was a general denial. Trial by jury. At the close of the plaintiff’s evidence the defendant demurred thereto, which demurrer the court sustained. This ruling is the only question presented in the record.
The court, in sustaining the demurrer to the evidence, stated that it was sustained upon the sole ground that the testimony of the plaintiff herself showed that she knew, before the expiration of the lease, that the property had been mortgaged to the defendant to secure the rent; and that she did not inform the defendant it was her property, or that she objected to the mortgage, although she had ample opportunity to do so. The evidence in this case discloses the fact that the husband of the plaintiff rented a farm of the defendant, on or about March 1, 1884, for one year, and, to secure the rent, executed his note and a chattel mortgage upon the property in controversy. The evidence further shows that this property was the sole and separate property of the plaintiff in error. The plaintiff testified in her own behalf as follows:
“ I did not mortgage the property to Eiley; I never saw him until after he came back from California. He went to California, so I was told, soon after his sale of February, last year, 1884; he came back in September last year, so I heard. I saw him soon after his return from California, and frequently afterward, before March 1, 1885, but did not speak to him about the property until the day he and a constable came to get the property. I forbade the constable or Mr. Eiley from taking the property; I never gave my consent to this mortgage; I never knew in fact that the moi’tgage was made, until Mr. Eiley and the constable came after the property. My husband said he would mortgage it; I told him he should not. I don’t know when the mortgage was made. I had reason to believe, and was informed by my husband before Eiley returned from California, that a mortgage had been made.”
Under this testimony of the plaintiff, the only question for consideration is, did the court commit error in sustaining the demurrer to the evidence ? Counsel for the defendant in error insists that the plaintiff was estopped from denying the mortgage, although the property belonged to her, because she had knowledge that it had been mortgaged, and did not disclose her ownership to Eiley when he returned in September. In this we think the counsel is in error. There was no legal or moral obligation resting upon the plaintiff to compel her to disclose the fact that this was her property, and that it was mortgaged without her authority. She was in possession of the property, and being in such possession, might rest secure until the mortgagee attempted to take it from her possession. When he did this, she stated her right to it and ownership thereof. Before plaintiff could be estopped, she must have done some act, or had knowledge of acts done in relation to this property, which at the time they were done led Eiley to believe that the property passed by the mortgage. She showed that she had no knowledge when the mortgage was given. Eiley, then, did not accept the security and mortgage because of any act, knowledge or consent of the plaintiff. He parted with no property or right by reason of anything she did or omitted doing; and there is no evidence tending to show that any benefit resulting from this mortgage passed to the plaintiff. Then how can it be said that she was estopped from setting up her claim and right to the property in controversy? We therefore recommend that the cause be reversed, and remanded to the court below with the direction to overrule the demurrer, and for further proceedings in accordance with the views herein expressed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The questions of law presented in this case are precisely like those decided in the case of the M. & M. Rly. Co. v. Champlin, Treas., just decided. Therefore, for the reasons given in the opinion filed in that case, the judgment in this case will be reversed, and the cause remanded to the district court of Riley county for further proceedings. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Franklin county, by John Parkinson and Jonathan Parkinson, partners, doing business under the firm-name of J. Parkinson & Co., against H. B. Alexander as principal, and H. C. Cross, C. Hood and William Martindale as sureties, on a certain, bond given by them to the Kansas City & Emporia Railroad Company, under § 1 of ch. 136 of the Laws of 1872. (Comp. Laws of 1879, and of 1885, ch. 84, § 35.) No proper service of summons was ever obtained upon H. B. Alexander, and hence no proceedings were had in the court below as against him. As between the plaintiffs and the other defendants, Cross, Hood, and Martindale, the case was submitted to the court below upon an agreed statement of facts, and the court rendered judgment in favor of the defendants and against the plaintiffs for costs. The plaintiffs bring the case to this court for review.
The material facts of the case, briefly stated, are as follows: The Kansas City & Emporia Railroad Company let a contract to H. B. Alexander to grade its road-bed from Emporia to Ottawa, and took from him, as principal obligor, and the said Cross, Hood, and Martindale, as sureties, the bond sued on in this action. Afterward the contractor, H. B. Alexander, sublet eleven miles of the work to D. P. Alexander. Afterward the sub-contractor, D. P. Alexander, sublet separate portions of his work to R. T. Pepper, Lucky & Cook, and White and Douglas, respectively. It was the agreement among all the parties that the payments should be made monthly as the work progressed • that all payments for work done should be made upon estimates made by the railroad company’s civil engineer; and that the contractor, H. B. Alexander, should have the right, as it was his duty under the law and under his bond, to pay or to see paid out of the funds due for the work done the wages of all laborers on the work, whether employed by the sub-contractor or by any of the sub-sub-contractors. The plaintiffs were merchants, selling goods, wares and merchandise at Pomona, Kansas, near where the grading was to be done, and where it was done, and they by agreement with the laborers and the sub-sub-contractors, Pepper and the others, and upon the orders of the said sub-sub-contractors, supplied goods, wares and merchandise to the laborers, and charged the amounts of the- purchase-price therefor to the sub-sub-contractors, Pepper and the others, and these amounts were then charged by the sub-subcontractors, Pepper and the others, against the laborers respectively, on the monthly pay-rolls, made out by the sub-contractor, D. P. Alexander, and the sub-sub-contractors, Pepper and the others, under the head of “merchandise account,” and these amounts, as so charged, were considered by all the parties as payments to the laborers of their wages to the extent of such amounts, and the pay-rolls were then placed in the hands of the contractor, H. B. Alexander, showing these payments. The railroad company’s civil engineer made monthly estimates of the work done on each of the several sections of the work, and the amount due thereon, and H. B. Alexander then paid to each laborer the amount due him, as shown by the pay-rolls, which was the amount of his entire .wages for the month, less the amount which the pay-rolls showed that he had already been paid in “ merchandise,” in the manner aforesaid; and then H. B. Alexander paid to the sub-contractor, D. P. Alexander, the remainder, as shown to be due him under his contract by the estimates of the railroad company’s civil engineer. This was in accordance with the understanding and agreement of all the parties.
It was the agreement between the plaintiffs and the sub-sub contractors, Pepper and the others, that either the sub-sub-contractors, Pepper and the others, or the sub-contractor, D. P. Alexander’, should pay the plaintiffs for their goods; and there was no contract on the part of the contractor, H. B. Alexander, to pay to the plaintiffs anything, or to pay to the sub-subcontractors anything. H. B. Alexander has been paid in full by the railroad company for all the work done, and he has paid to all the parties respectively everything that he ever agreed to pay to any person. The laborers have also been paid their entire wages, and all that is due them. The subcontractor, D. P. Alexander, and the sub-sub-contractors, Pepper and the others, have also been paid in full, and all that is due them; and it was and is their duty to pay the plaintiffs for the goods, wares and merchandise furnished by the plaintiffs to the laborers upon the aforesaid agreement, but they have not done so, and the plaintiffs have not been paid; and this failure of payment on the part of somebody is the only breach of the condition of the defendants’ bond alleged in this action. The statute under which the bond was given reads as follows:
“Section 1. That whenever any railroad company shall contract with any person for the construction of its road or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics and material-men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, incurred in carrying on such work, which bond shall be filed by such railroad company in the office of the register of deeds in each county where the work of such contractor shall be; and if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” (Comp. Laws of 1879, and of 1885, ch. 84, §35.)
No copy of the bond sued on in this action has been brought to this court, but it is admitted that the bond was executed under and in pursuance of the foregoing statute, and that it is a good bond. Under this statute, laborers, mechanics and material-men, furnishing work or materials in the construction of a railroad, are so protected that they may recover against the obligors on the bond where a bond is given by the contractor in pursuance of the statute, or against the railroad company where no bond is given, for everything furnished by them which goes into the construction of the railroad, whether such laborers, mechanics or material-men are employed by the contractor, or by a sub-contractor, or by a sub-sub-contractor. (Mann v. Corrigan, 28 Kas. 194; M. K. & T. Rly. Co. v. Brown, 14 id. 557.) But persons fur-^sh^g only provisions, or goods which do not g° into the construction of the railroad, are not so protected, unless such provisions or goods are furnished to the contractor himself. (Wells v. Mehl, 25 Kas. 205; St. L. W. & W. Rly. Co. v. Ritz, 30 id. 30.) The statute does not protect any person who furnishes any kind of goods when he furnishes them only to a sub-contractor, or to a sub-sub-contractor, when it is not the intention of the parties at the time that the goods shall go into the construction of the railroad itself, and when they do not go into such construction. Under the contract between H. B. Alexander and D. P. Alexander, H. B. Alexander was bound to pay to D. P. Alexander the full contract-price for all work done by or under him, except that H. B. Alexander reserved to himself the right to pay or to see paid out of the funds going to D. P. Alexander the amount of the laborers’ wages. Also, under the bond sued on in this case, H. B. Alexander and his sureties, the defendants, were bound to pay or to see paid the wages of the laborers for all work done by them in grading the railroad. But neither was H. B. Alexander nor were the defendants, his sureties, bound to pay or to see paid the laborers in any particular manner. All that they were required to do was to see that the laborers were paid or satisfied in some lawful manner; and when this was done, then all the remainder of the money due to I). P. Alexander, after paying or satisfying the laborers, should be paid to him, and he could recover it from H. B. Alexander. But H. B. Alexander never was under any obligation to the sub-sub-coutractors, Pepper and the others, or to the plaintiffs. H. B. Alexander never agreed to pay the plaintiffs anything; never gave any orders upon them; never agreed to satisfy any orders received by them; and was never under any obligation to them, or to see that they were paid. He was never a debtor to them, nor even a debtor to their debtors. Their debtors were the sub-sub-contractors, Pepper and the others, and H. B. Alexander never owed the sub-sub-contractors anything, nor was he under any obligation to them. They were to look for 'their pay to the sub-contractor, E>. P. Alexander, and not to the contractor, H. B. Alexander. Of course, where sub-contractors or sub-sub-contractors are also laborers, mechanics, or material-men, a different rule would apply.
A great deal has been said about contracts, agreements and other transactions taking place after the execution of the bond sued on. Now it is scarcely necessary for us to say that the obligation of the defendents, who are only the sureties on the bond, could not be enlarged by anything occurring subsequent to its execution. Their obligation was and is fixed by the bond itself, and not by any subsequent contracts, agreements, arrangements or transactions brought into existence by any person'or persons except themselves. We are simply to look to the bond to see what their obligation is, and then look to the facts occurring subsequently, to see whether there has been any breach of that obligation or not. We think there has been no breach.
It has been suggested that when the laborers received their goods, wares and merchandise from the plaintiffs they transferred their claims to the plaintiffs. This is not so, however, and it was never the understanding of the parties. It was the understanding of the parties that when the laborers received their goods, wares and merchandise from the plaintiffs, that the amount of the purchase-price thereof was a payment fro tanto of their claims against the sub-sub-contractors, Pep per and the others, and in lieu thereof new debts or claims were created in favor of the plaintiffs and against the sub-subcontractors, Pepper and the others. By this arrangement the debts due to the laborers from the sub-sub-contractors, Pepper and the others, for work done on the railroad to the extent of the purchase-price of the goods, wares and merchandise received by them, were extinguished, and in lieu thereof the sub-sub-contractors, Pepper and the others, became debtors to the plaintiffs. And these debts due from these parties to the plaintiffs were not for laborers’ wages, or for anything that went into the construction of the railroad, but were simply for goods, wares and merchandise sold by the plaintiffs as merchants.
We think no material error was committed in this case, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This was an action by plaintiff in error against defendant in error, upon a promissory note for five hundred dollars, signed by defendant. The petition is in the usual form, and the answer sets up two defenses: first, that the note was never legally delivered to the plaintiff; and second, the consideration of said note had failed. The case was tried by a jury, at the March term, 1885, and a verdict was rendered for the defendant. Motion for a new trial overruled; judgment on the verdict; plaintiff below brings the case here.
The facts as they appeared on the trial are briefly these; The plaintiff had some interest in a lot in St. Marys, Kansas, which the defendant wished to buy, and he entered into a contract whereby he was to pay five hundred dollars for the lot when the plaintiff should give him a good deed to the same and furnish him with an abstract, showing a perfect title in fee simple in plaintiff. Before the plaintiff signed the deed, the defendant moved into the house on the lot. The plaintiff executed a deed to the lot, with a special warranty, but failed to furnish an abstract of title, showing a perfect title in himself; in fact, he failed to furnish any abstract at all, but the defendant procured one, showing the title to be in a party other than the plaintiff. The defendant at this time had on deposit in the store of George P. Anderson, a merchant of St. Marys, fifteen hundred dollars in cash, and when he ascertained that the plaintiff did not have a perfect title to the lot in question he offered to lend plaintiff the money to perfect his title. He signed the note for five hundred dollars, and left it with Anderson to be delivered. There is some question about the delivery of the note. The defendant received from Anderson a deed from Radway and wife, and placed it upon record in the office of the register of deeds of Wabaunsee county. Afterward the defendant abandoned the lot in question.
Upon the trial of the case, testimony was introduced tending to establish all the facts hereinbefore set forth. There was no issue raised in the pleadings, nor objection offered to the introduction of evidence that the defendant had not proffered to reconvey to the plaintiff what estate he may have acquired under the deed he received. The case was tried upon the theory that the contract for the property for which the defendant bargained was not fully complied with, and therefore the defendant could dispute the entire consideration of the note given for the same. In the plaintiff's motion for a new trial, he alleges as one ground that the verdict was against the weight of the evidence. Prom the record in the case, that is the only question we are called upon to consider, as the other errors set forth in the petition in error were not raised in the motion for a new trial.
We believe that there was some testimony tending to establish every fact necessary to uphold the verdict. The case was fairly submitted to the jury; it was their province to pass upon the evidence; they did so; the court rendered judgment upon their verdict, and under the well-established rule of law in this state the judgment should not now be disturbed by this court. (U. P. Rly. Co. v. Coldwell, 5 Kas. 82; Abeles v. Cohen, 8 id. 180; K. P. Rly. Co. v. Montelle, 10 id. 119; St. J. & D. C. Rld. Co. v. Chase, 11 id. 47; Bridge Co. v. Murphy, 13 id. 36; K. P. Rly. Co. v. Kunkel, 17 id. 145; George v. Myers & Green, 18 id. 430; Bellew v. Ahrburg, 23 id. 287; Theilen v. Hann, 27 id. 778 ; Beal v. Codding, 32 id. 107.)
It is recommended that tne judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Rulon, C.J.:
Defendant Kevin L. Page appeals his two convictions of rape, contending the district court erred when:
• Permitting the State to offer certain rebuttal evidence;
• Permitting a prosecution witness to testify;
• Giving an improper “deadlocked jury instruction”; and
• Imposing an aggravated sentence without jury consideration.
We reverse and remand for further proceedings because the district court erred when giving the jury a “deadlocked jury instruction” disapproved by our Supreme Court. See State v. Salts, 288 Kan. 263, Syl. ¶ 2, 200 P.3d 469 (2009).
A detailed discussion of the underlying facts is not necessary for our resolution of this appeal.
When a defendant objects to instructions, an appellate court must consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007) (citing State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 [2006]).
The jury instruction at issue here was taken directly from PIK Crim. 3d 68.12. “Trial courts are not required to use PIK instructions, but it is strongly recommended because the instructions were developed in order to bring accuracy, clarity, and uniformity to jury instructions. Modifications or additions should only be made if the particular facts of a case require it.” State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004).
At trial, this defendant objected to the giving of the deadlocked jury instruction; his objection was effectively overruled — the deadlocked jury instruction was given. In his appeal, the defendant argues the deadlocked jury instruction given to the jury before it began its deliberations was prejudicial, misleading, coercive, and asked the jury to consider matters outside the evidence produced at trial. According to the defendant, the instruction placed undue pressure on the juiy to reach a verdict by inaccurately characterizing the criminal trial process as burdensome to both parties. The defendant argues the jury could have found the defendant wás unduly stressing the criminal justice system by exercising his constitutional rights and that it was in the best interests of the jury, as taxpayers, to avoid a hung jury. Finally, the defendant contends the deadlocked jury instruction contradicted the court’s first instruction, which asked the jury not to consider the disposition of the case but rather to focus solely on reaching a verdict.
Our Supreme Court recently addressed the argument raised here by the defendant. See Salts, 288 Kan. 263, Syl. ¶ 2. Salts challenged the language “ ‘[a]nother trial would be a burden on both sides,’ ” taken directly from PIK Crim. 3d 68.12 and included in the deadlocked jury instruction given at Salts’ trial. 288 Kan. at 264. Salts argued this language was misleading and inaccurate because another trial does not burden either party; it is the State’s obligation and Salts’ right. Salts argued the language was legally incorrect because as noted in a previous jury instruction, the jury should not consider what happens after trial. Finally, Salts argued the disputed language prejudiced him because it appealed to the jurors’ financial interests as taxpayers.
In reaching its decision, the Salts court said:
“Salts’ argument that the challenged language is misleading and inaccurate has merit. Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside . . . [an] instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.
“We therefore hold that including the language ‘[a]nother trial would be a burden on both sides’ in PIK Crim. 3d 68.12 is error.” 288 Kan. at 266.
Because Salts did not object to the jury instruction at trial, the court applied a clearly erroneous standard of review and ultimately concluded the error was not reversible because the court was firmly convinced there was no real possibility the jury would have rendered a different verdict if the error had not occurred. 288 Kan. at 267.
Here, the defendant objected to the giving of the deadlocked jury instruction. Consequently, we must consider whether the error identified in Salts is reversible when challenged at trial. We must determine whether the instruction challenged here properly and fairly stated the law as applied to the facts of the case and whether the instruction could have reasonably misled the jury.
According to our Supreme Court, telling a jury that “ ‘[ajnother trial would be a burden on both sides’ ” is misleading, inaccurate, and confusing. 288 Kan. at 264, 266. Moreover, in this case the jury actually informed the district court a hung jury was a real possibility. In fact, the jury indicated it was deadlocked as to count II. The district court responded by recessing for the evening. When the jury returned the next day, the jury requested the court read back certain testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real pos sibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant’s convictions must be reversed.
In light of the above discussion, we need not consider the other issues raised by the defendant.
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Greene, J.:
St. Francis Hospital in Wichita, a/k/a Via Christi Regional Medical Center (Via Christi), appeals the district court’s ruling based on summary judgment motions and a subsequent bench trial that the Kansas Health Care Stabilization Fund (Fund) had no liability to indemnify Via Christi for a settlement wherein Via Christi agreed to pay the Maria Brower family $3.3 million for a comprehensive release of all their claims, which arguably included medical malpractice, fraud, and spoliation of evidence. The district court held that to the extent the settlement included payment for covered injuries, that payment did not exceed Via Christi’s self-insurance, thus triggering no liability of the Fund. We affirm the district court.
Factual and Procedural Background
This litigation has a long and rather tortured factual and procedural history. In October 1987, Maria Brower, a minor, had surgery to remove a spinal tumor and to correct a spinal defect. Following the surgery, Brower suffered partial paralysis, including the loss of bowel arid bladder control. Brower sued the surgeon in 1992, but the trial resulted in a defense verdict. Thereafter, the district court granted Brower a new trial based upon juror misconduct, and the surgeon then settled the suit with Brower for an undisclosed amount.
This settlement did not end Brower’s litigation, however, because of alleged misconduct by Via Christi or its agents during the initial suit. The alleged misconduct in that litigation surrounded the production by Via Christi of two inconsistent printouts of the somatosensory-evoked potential (SSEP) monitoring during Brower’s surgery. This alleged misconduct provoked Brower’s 1996 suit against Via Christi and its electroencephalogram technician, Lisa Gould, alleging negligence in SSEP monitoring, fraud, spoliation of evidence, intentional infliction of emotional distress, and violations of the Kansas Consumer Protection Act (KCPA). The suit prompted a letter from the Fund to counsel for Via Christi, stating:
“This Department has been advised by the insurance company that you have been appointed to represent the following defendant(s) whom they insure:
Via Christi Medical Center
“Our records show that the defendant(s) named above qualifies for coverage provided by the [Fund] pursuant to statute, K.S.A. 40-3401 et seq. In order that we can be kept apprised of the status of this matter, we ask that you provide us with the following information [including an estimate of liability and other information to enable evaluation of exposure of the Fund].”
In April 1997, the district court granted Via Christi’s motion for partial summary judgment on the negligence claim based on the statute of repose. The court rejected Brower’s argument that the statute of repose should be tolled as the result of allegedly fraudulent conduct by Via Christi and, in doing so, refused to follow the majority opinion of this court in Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997), instead following the concurring and dissenting opinion in that case, 23 Kan. App. 2d at 833-36 (Knudson, J.).
Whether to appeal the district court’s ruling then became the subject of consideration and discussion between the parties. From correspondence in the record, Via Christi’s counsel reported to his client in early 1998 that Brower’s response to a motion for summary judgment included a request for the court “to amend its previous ruling and allow for an interlocutory appeal” and stated an intention “to voluntarily dismiss all remaining claims, thereby allowing appeal of the court’s earlier ruling.” This letter suggested that Brower’s counsel “wants in the worst way for the negligence issue to be immediately presented to the Kansas Court of Appeals.”
In May 1998, an internal memo of Via Christi’s counsel suggested that they were “still deliberating the possibilities of whether we should agree” to an immediate appeal regarding the negligence claim. The memo discussed the pros and cons of such an appeal, noting that a detriment would be the loss of some useful testimony concerning the equitable estoppel argument by Brower. The memo reported no decision as to an agreement to an interlocutory áppeal.
Sometime prior to July 1998, and purportedly due to a perceived conflict of interest created by the potential need for counsel to testify as to the fraud claim, Brower s counsel withdrew and new counsel entered his appearance. New counsel then moved to voluntarily dismiss the remaining claims in the case without prejudice. The record on appeal does not contain the motion, order, or transcript of ruling, but correspondence from Via Christi’s counsel reported that in granting Brower’s motion, the district court ruled “that all discovery conducted and the summary judgment rulings received would be applicable in any refiled action.”
Later in 1998, Brower refiled her suit against Via Christi and Gould, alleging negligence, together with fraud and evidence spoliation, but deleting the intentional infliction of emotional distress and KCPA claims. Based on correspondence in the record, it appears that the Fund notified Via Christi in late December 1998 that the claims asserted “were based upon fraud and intentional tort and that [the Fund] hoped that coverage did not become an issue.”
In May 2000, the Fund’s chief attorney questioned its potential liability in a letter to Via Christi’s counsel and inquired whether there were any claims being made against Via Christi for negligence. In response, Via Christi’s counsel stated:
“You are correct that the original petition contained five claims: Negligence, spoliation, fraud, intentional inflection [sic] of emotional distress and consumer protection violations. The last two listed claims were dropped when the case was dismissed and refiled. Summary judgment has been entered against the negligence claim. Therefore, at the moment, the only surviving claims are for spoliation and fraud. However, plaintiffs will likely appeal, and may even seek rehearing, on the order holding that the negligence claim was barred by the statute of repose.
“The bottom line response to your letter, therefore, is that at present the only surviving claims are for fraud and spoliation, but there is a negligence claim waiting in the icings. As to the fraud and spoliation cases, they both arise out of the providing of medical services and allege as damages injuries arising out of alleged medical malpractice. Obviously it would not be appropriate for me, as defense counsel, to offer an opinion as to whether the Fund has coverage under these circumstances.” (Emphasis added.)
On August 15, 2001, Via Christi formally tendered its liability limits to the Fund and requested the Fund to assume the defense of the litigation. The Fund responded to Via Christi by letter, stating: “In the event that it is determined that the Health Care Stabilization Fund has coverage in this matter, the tender will be accepted as of August. 16th, the date your letter was received in our office. At this time, however, we do not accept nor deny the tender.”
In late 2001, trial counsel for both Via Christi and Gould wrote letters to the hospital’s counsel, indicating bleak predictions for the potential liability Via Christi faced if the jury awarded Brower damages. Following additional negotiations with Brower, Via Christi ultimately settled the suit for $3.3 million in a confidential settlement agreement on Jtine 7, 2002. The Fund did not participate in the settlement. The settlement agreement contained a provision which stated in material part:
“All sums set forth in this Settlement Agreement and Release constitute damages on account of personal injuries or sickness in a case involving physical injuiy or sickness arising from the accident, casualty or event stated in Paragraph 1 of this agreement and within the meaning of Sections 104(a)(2) and 130(c) of the Internal Revenue Code of 1986, as amended.”
On July 16, 2002, Via Christi advised the Fund of the settlement and requested contribution in the amount of $3 million and requested payment of attorney fees for its defense costs. On July 26, 2002, the Fund noted its disagreement that it was obligated to contribute to the settlement or pay for Via Christi’s defense costs. Five days later, the Fund filed a declaratory judgment action in Shawnee County seeking judgment that it had no coverage and thus no obligation to reimburse Via Christi for the settlement. Via Christi filed a counterclaim alleging wrongful denial of coverage for the settlement.
On September 21, 2004, the parties filed joint stipulations of fact, which the district court accepted. Thereafter, each party filed competing motions for summary judgment. The district court held that the Fund covered any of the claims contained in the settlement “arising out of the rendering or failure to render professional services” by Via Christi but did not cover any other claims settled. The court further reasoned that, since the nature of the fraud claim did not involve improper medical treatment but occurred subsequent to the medical treatment, the fraud claim was not covered by the Fund. Because the court could not apportion the settlement according to the claims resolved, it ordered the parties into mediation to attempt to reach agreement on the amount owed by the Fund.
The Fund filed a motion for rehearing or modification of the memorandum decision, arguing that Gould was not covered by the Fund and that her negligence would not be covered by the Fund. The district court rejected the Fund’s argument, noting that Via Christi was covered by the Fund and Gould’s negligence could be attributed to Via Christi under a theory of respondeat superior.
When the parties failed to reach an agreement pursuant to the court-ordered mediation, the district court conducted a bench trial on the issue of apportioning the settlement between covered and noncovered injuries. On June 7, 2007, the district court concluded that less than $200,000 of the $3.3 million settlement in the Brower case was paid to eliminate the remote possibility that a negligence claim might be revived at some unknown date in the future. Because Via Christi was self-insured for the first $200,000 of liability, the court granted judgment against Via Christi on its counterclaim.
Via Christi filed a timely notice of appeal from the district court’s judgment.
Prior to oral argument before this court, we issued an order for supplemental briefing to address the legal impact of the voluntary dismissal without prejudice after the summary judgment ruling on the negligence claim. The parties filed and we have now considered the supplemental briefing on this issue.
Is the Issue of the Fund’s Duty to Defend Properly Before this Court?
On appeal, Via Christi principally contends that the Fund had a duty to defend Via Christi on a potential negligence claim and, because the Fund breached that duty, the Fund cannot now contest the reasonableness of Via Christi’s settlement with Brower absent some demonstration of fraud or collusion. Although this legal construct might ordinarily have validity, Via Christi has never al leged the Fund breached a duty to defend. Instead, Via Christi’s entire case in district court focused on allegations that the Fund breached a duty to indemnify. In other words, our review of pleadings and summary judgment motions reveals this was merely a coverage battle, without the complications and legal consequences inherent in litigation alleging breach of the duty to defend.
Via Christi did not raise any issue of the Fund’s duty to defend until appeal. The issues framed by the initial pleadings and the summary judgment motions were limited to coverage, and we view this question as quite distinct from the broader duty to defend. Our Supreme Court recently discussed the distinction in these duties:
“ ‘As between the duty to pay proceeds and the duty to defend, the more expansive, broader duty is the duty to defend. The source of this observation is in the fact that an insurer is contractually obligated to defend even meritless suits that fall within the coverage. Presumably, the plaintiffs claims in meritless suits will be defeated, and the insurer will therefore not incur any obligation to provide indemnification. But before the merits are decided, the insurer must provide and pay for the insured’s defense. In effect, the insured receives “coverage” for the defense itself, even though no duty to indemnify will ever exist in that situation. In other words, the duty to defend is broader in the sense that it is triggered in more situations than the duty to indemnify.’ [Citation omitted.]” Miller v. Westport Ins. Corp., 288 Kan. 27, 33, 200 P.3d 419 (2009).
Contrasting Via Christi’s summary judgment motion to its brief on appeal, it is clear that the issue presented to the district court did not encompass the broader duty to defend now argued on appeal. The summary judgment motion framed only the following as the question presented:
“Should Via Christi be denied its insurance coverage with the Fund simply because the Browers’ claims included allegations of fraud and spoliation of evidence, in addition to allegations of medical negligence, all of which arose out of Maria Brower’s surgery and other related medical care?”
The brief on appeal suggests that “[w]hen an excess liability insurer has denied coverage and refused to defend a covered claim, it is bound by the insured’s settlement of the claim unless it proves the settlement was fraudulent or collusive.” (Emphasis added.) The brief goes on to provide tenets applicable to the duty to defend, including the duty to defend even though the possibility of coverage may be remote.
Here, the district court was not asked, and the parties had not pleaded, that there was a duty on the part of the Fund to defend Via Christi. Instead, the focus was unequivocally on the question of coverage after the settlement. Via Christi’s attempt to shift its theory on appeal would dramatically alter our approach and the applicable legal principles on review; we are not inclined to permit such a shift.
Indeed, the district court noted the distinction between the duty to defend and the duty to indemnify and ultimately focused on “the underlying facts as they existed when the claim was settled and [made] the determination as to whether the incident [fell] within coverage.” Accordingly, we decline to decide this appeal on this issue, instead focusing on the issues that were framed by the summary judgment motions to the district court. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (issues not raised before the trial court cannot be raised on appeal).
We revisit the district court’s rulings to ascertain the scope of this appeal. The district court held that the motions for summary judgment were limited to two specific issues:
“1. Whether any or all of the settlement in Sedgwick County Case No. 98-C-3467 was for claims ‘arising out of the rendering of or the failure to render professional services’ pursuant to K.S.A. 40-3403(c)(1); and,
“2. Whether the Kansas Health Care Stabilization Fund is obligated to pay any or all of the settlement in Sedgwick County Case No. 98-C-3467 pursuant to K.S.A. 40-3403(c)(1).”
Our extensive analysis of the summary judgment motions and supporting memoranda reveals that these were the only issues framed below, and the district court’s resolution of these issues led to the necessity of a bench trial on the issue of apportionment of the settlement. Accordingly, we limit our decision to these issues, reviewing the district court’s findings and conclusions on each.
Did the District Court Properly Construe and Apply the Phrase “Arising Out of the Rendering of or Failure to Render Professional Services” Contained Within K.S.A. 40-3403(c)(l)?
Via Christi argues that the district court erred in construing and applying K.S.A. 40-3403(c), which provides:
“Subject to subsections (d), (e), (f), (I), (k), (m), (n), (o), (p) and (q), the fund shall be liable to pay: (1) Any amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable resident health care providers or resident self-insurers for any personal injury or death arising out of the rendering of or the failure to render professional services within or without this state.”
The interpretation of a statute is a question of law over which an appellate court has unlimited review. We are not bound by the trial court’s interpretation. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
The district court’s memorandum decision reviewed the legislative history of the enactment and concluded the Health Care Provider Insurance Availability Act “must be interpreted for the benefit of all Kansans in order to promote the purpose and to protect the financial integrity of the Health Care Stabilization Fund.” Relying on Bell v. Simon, 246 Kan. 473, 790 P.2d 925 (1990), the district court then held that “ ‘K.S.A. 40-3403(c) must be read in harmony with the entire Act.’ ” The court found the language of that statutory provision to be clear and unambiguous and concluded that claims which do not arise out of the rendering of or failure to render professional services by a health care provider are not within the coverage of the Fund. Because the claims against Via Christi arose from Gould’s intentional and fraudulent conduct in concealing and altering evidence, the court concluded they arose out of fraudulent conduct committed subsequent to the rendering of or failure to render professional services and were not within the coverage of the Fund under K.S.A. 40-3403(c).
At the outset, we fundamentally disagree with the district court’s reading of the statute. The subject phrase “arising out of’ does not modify claims, but rather it modifies “any personal injury or death.” In fact, the statutory provision makes no reference to claims. In other words, K.S.A. 40-3403(c) provides that the Fund is liable to pay any excess amount from a settlement “for any personal injury or death arising out of the rendering of or the failure to render professional services.” The district court’s reading is not supported by the clear language of the provision. See Wilson v. Ramirez, 269 Kan. 371, 381, 2 P.3d 778 (2000) (quoting with approval that district court’s order and analysis as to Fund coverage).
Thus, the question framed is whether the Brower settlement was paid for personal injuiy arising out of the rendering of or the failure to render professional services. Via Christi argues that the settlement arose out of the rendering of such services. It suggests:
“If there had been no negligence in rendering professional services, there would be no damages. The damages claimed by plaintiff were the same on both the negligence and fraud theories. The effect of the fraud theory was to prevent Brower being deprived of a remedy for the damages arising out of negligence in the professional services rendered during her spine surgery.”
We disagree. What injuries were suffered by Brower as a direct result of the alleged fraud and spoliation of evidence? Her injury was the loss of her ability to timely seek redress for the negligence of Gould, not the injuries sustained by reason of Gould’s negligence. The measure of damages for the fraud claim may well have been the amount Brower would have recovered on a negligence claim, if the alleged fraud had not prevented her from bringing the action within the period established by the statute of repose. But the injury to Brower as the result of Via Christi’s fraud, i.e., the loss of her cause of action sounding is medical malpractice due to the operation of the statute of repose, does not arise out of the rendering of or the failure to render professional services.
The rather subtle distinction between the measure of damages in the fraud case and the injuries that arise from such a case is best explained by our court in Robinson. There, in addressing statute of limitations issues for claims of negligence and fraud against a health care provider, the court carefully distinguished between the claims as follows:
“We hold that where a patient has a cause of action against a physician for malpractice and has been duped by the intentional and lmowing lies of the physician to the extent the patient in reliance on the fraudulent misrepresentation permits the statute of limitations to bar his or her action, the patient can maintain an action for fraud against the physician, not on account of the original negligence or malpractice but on account of the fraudulent actions of the physician which deceived the patient with the consequence that the time bar ran against the original action.” (Emphasis added.) 23 Kan. App. 2d at 824.
Another panel of our court recently quoted Robinson and characterized its holding as follows:
“[T]he holding of Robinson . . . requires a plaintiff to establish two separate instances of misconduct: one forming the original cause of action and the other in concealing or misrepresenting the facts that would allow the plaintiff, exercising reasonable diligence, to detect the underlying tortious conduct.” Bonura v. Sifers, 39 Kan. App. 2d 617, 632, 181 P.3d 1277, rev. denied 286 Kan. 1176 (2008).
Although neither of these cases addresses the precise question before us, these cases instruct that a fraud case based upon conduct that conceals a negligence action until the statute of limitations or’ statute of repose has run must be viewed as separate and distinct from the underlying negligence action. In fact, to the . extent that the elements of the actions are merged as suggested by Via Christi herein, the analytical framework for application of the statute of hmitations becomes unworkable. Viewing the claims separately,, the injury sustained by reason of the fraud is the loss of opportunity to litigate the negligence claim within the statute of hmitations or statute of repose. The measure of damages in that fraud case is the potential recovery if the negligence case had proceeded on a timely basis. Clearly, however, the injury for the fraud does not arise from the rendering of professional services.
Via Christi relies on cases that have liberally construed the phrase “arising out of,” including Pestock v. State Farm Auto Ins. Co., 9 Kan. App. 2d 188, 189, 674 P.2d 1062 (1984). These cases, however, ultimately concluded the insurers did not owe liability for the accidents, noting the remoteness .of the causal relationship between the injuries and types of activity covered by the respective policies.
The more instructive authority is Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995), where the question was whether an accident “arose out of ownership or use” of a motor vehicle. The court held that in order for coverage to exist for accidental bodily injury caused by the discharge of a firearm within an automobile, there is no requirement that the vehicle be either the proximate cause of the injuiy or physically contribute to the discharge of the gun. “Coverage exists where the minimal causal connection between the use of the vehicle and the injuiy is provided by the foreseeable and reasonable use of the vehicle for hunting. [Citation omitted.]” 258 Kan. at 551-52.
While the holding of Garrison broadly construed a contract provision similar to the statutoiy provision at issue in this case, the court in Garrison clearly required a causal connection between the injuries and the conduct covered by the insurance provision. See Molitor v. Davidson, 26 Kan. App. 2d 83, 85-87, 978 P.2d 294, rev. denied 267 Kan. 889 (1999) (construing and not extending the holding of Garrison). Via Christi does not argue that fraud is a natural and foreseeable aspect of the professional services provided to. the plaintiff; thus, the rationale of Garrison would not support Via Christi's argument to abandon a causal connection in construing the phrase “arising out of.”
Under the facts of this case, Brower s allegations of fraud and spoliation of evidence against Via Christi and Gould did not arise out of the rendering of or the failure to render professional services. The district court properly held that the Fund's coverage did not include Brower's injury due to the fraud and spoliation of evidence. To the extent the setdement paid Brower sums for having lost her medical malpractice action due to the operation of the statute of repose, the Fund was not liable. This does not resolve this appeal; we must now examine whether the settlement also paid Brower for injuries that arose from any aspect of her original medical malpractice claims.
Did the Brower Settlement Include Payment for Injuries that Arose From the Original Negligence Claims Against Via Christi?
Even though we have concluded that the Fund had no liability for settlement amounts paid for Brower’s injuries due to fraud, Via Christi argues that the original negligence or malpractice claims remained in the suit at the time of settlement and that the settle ment amount included payment for Brower’s injuries arising out of the rendering of professional services. Via Christi argues the negligence claim was improperly dismissed by the district court and this decision was never appealed; thus, the negligence claim was alive, pled in the subsequent action, included in the pretrial order, and acknowledged by counsel as “waiting in the wings.” The Fund argues that the settlement did not include any payment for the negligence claims and, to the extent any such claims were included, Via Christi failed to shoulder its burden to demonstrate any basis for apportioning the amount paid among negligence claims, fraud claims, and punitive damage claims.
The district court initially determined that the negligence claims “could have been revived at any point prior to the entry of the final judgment” but “no attempt was ever made to allocate or itemize the settlement based on the type of claim asserted.” When the parties were unable to come to an agreement as to an apportionment of the settlement amount, the district court conducted a bench trial and made factual findings to support its conclusion that “less than $200,000 of the $3.3 million settlement in the Brower case was paid to eliminate the remote possibility that a negligence claim might be revived at some unknown date in the future.”'
What impact did the dismissal without prejudice have-on the summary judgment terminatins. the negligence claim?
Upon this court’s initial review, we perceived a threshold issue that must be resolved: Was the negligence claim subject to revival in a subsequent action after its termination by summary judgment was not appealed before the entire initial suit was dismissed without prejudice? Put another way: Did tire dismissal without prejudice after summary judgment was entered on the negligence claim have a preclusive effect on any subsequent attempt to assert the claim? As indicated above, the parties were, requested to submit supplemental briefs on this issue because both parties’ initial briefs seemed to concede (and the district court seemed to believe) that the claim was unaffected by the dismissal after summary judgment.
Our initial concern was based upon this court’s opinion in Grimmett v. S&W Auto Sales Co., 26 Kan. App. 2d 482, Syl. ¶ 4, 988 P.2d 755 (1999), wherein a panel of our court held that preclusion doctrines should be applied when a party voluntarily dismisses a case after an adverse ruling has been made on a summary judgment motion. The rationale of the court was that “[sjummary judgment procedure, at least from the defendant’s point of view, would become a virtual nullity if plaintiffs could obtain ‘overs’ by dismissing and refiling a case rather than fully htigating an adverse summary judgment decision through the appellate process. [Citation omitted.]” 26 Kan. App. 2d at 486. The precise holding was stated by the panel as follows:
“We conclude a trial court’s decision on summary judgment satisfies the final judgment on the merits requirement for purposes of claim preclusion when the parties were fully heard, the decision is made with a reasoned opinion, and the ruling is subject to appeal or, in fact, reviewed on appeal. [Citations omitted.] Although interlocutory when rendered, the trial court’s decision became final when the appeal was dismissed.” 26 Kan. App. 2d at 488.
If we apply this rule here, the summary judgment terminating Brower’s negligence claim in the first Brower case would have preclusive effect and that claim could not have been any part of the remaining litigation as a matter of law.
Via Christi argues in its supplemental brief, however, that this application is of no value in this case. The argument is that whatever preclusive effect there may have been by virtue of the dismissal, there was no affirmative defense raised on this basis by St. Francis/Via Christi in the second Bower case. See K.S.A. 60-208(c). Absent any such pleading, the defense was waived. In re Parentage of Shade, 34 Kan. App. 2d 895, 903-04, 126 P.3d 445, rev. denied 281 Kan. 1378 (2006).
We agree with this assertion and therefore conclude that the negligence claim was not precluded as a matter of law from being asserted in the second Brower litigation.
Did the district court err in concluding that any payment to Brower for release of the negligence claim did not exceed the self-insured’s coverageP
Having determined that the settlement may have included payment for both covered and noncovered injuries, the district court conducted a bench trial on the question of apportionment. We review the findings of fact to determine if they are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of the trial court’s conclusions of law. LSF Franchise REO I, 283 Kan. at 19.
First, we examine the legal predicate for the bench trial. Was apportionment of the relative risks of covered and noncovered aspects of setdement the proper question, and, if so, was it a fact question? The district court relied principally on federal authorities in deciding its course and direction, by stating:
“ ‘Although the duty to defend is determined by the allegations of the underlying complaint and by facts discoverable to the insurer, the duty to indemnify is determined by the facts as they are established at trial or as they are finally determined by some other means (e.g. summary judgment or settlement).’ Bankwest v. Fidelity & Deposit Co. of Maryland, 63 F.3d 974, 978 (10th Cir. 1995). See also American Motorists Insurance Co. v. General Host Corp., 946 F.2d 1489, 1490 (10th Cir. 1991). When a lawsuit is settled, ‘the duty to indemnify is determined from the facts forming the basis of the settlement.’ Employers Reinsurance Corp. v. New Cap Ins. Co., 209 F. Supp.2d 1184, 1192 (D. Kan. 2002). Thus, in the present case, ‘the Court must assess the underlying facts as they existed when the claim was settled and make the determination as to whether the incident falls within the coverage . . . .’ Employers Reinsurance Corporation v. Newcap Insurance Company, 209 F. Supp.2d 1184, 1192 (D. Kan. 2002).”
Although Kansas law is scarce on the proposition, our Supreme Court quoted with apparent approval a district court’s statement of similar principles in AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 740-41, 71 P.3d 1097(2003), where the district court stated the principles as follows:
“ ‘. . . [C]ourts applying Kansas law have held that when liability issues have been tried or settled, coverage issues are “controlled” by the settlement in the underlying litigation. The general rule is that “the duty to indemnify is determined by the facts as they are established at trial or as they are finally determined by some other means.” [Citation omitted.]’
“ ‘After a settlement, the underlying claimants’ liability contentions are accepted as true for purposes of determining whether there is coverage. [Citation omitted].’ ”
These principles appear to be fully supported by at least one learned treatise on insurance law. An excellent discussion of the precise problem faced by the district court appears in 1 Windt, Insurance Claims and Disputes § 6.31, pp. 6-244 to 6-250 (5th ed. 2007):
“Following a settlement as to which the insurer denies coverage, the existence of coverage should depend on what claims were settled; that is, it should depend on why the money was paid. The actual merit of each of the plaintiffs claims against the insured is not directly relevant. The only question should be how the parties to the settlement viewed the relative merits of the plaintiff s claims at the time of the settlement and whether, if the insured settled without the carrier’s approval, the settlement amount was reasonable. Neither the insurer nor the insured should be allowed to tty the plaintiff s claim in the coverage suit. The insurer should not, however, be bound by how the settlement is allocated by the insured/ claimant or by what the agreement states is the reason the settlement money was paid.”
Obviously, the question is one of fact, not one of law. Especially where the determination of coverage is compounded by a comprehensive settlement of both covered and noncovered injuries, the question turns on how the lead players valued the relative risks in arriving at the final settlement. See Cyprus Amax Minerals v. Lexington Ins., 74 P.3d 294, 301-02 (Colo. 2003) (determination of whether a duty to indemnify exists requires factual development, as it is largely a question of fact).
Accordingly, we conclude the district 'court’s conduct of a bench trial to address the ultimate issue here was quite appropriate, and the court’s focus appears to have been consistent with sound principles of law. We must, however, determine whether the court’s findings were supported by substantial competent evidence.
The district court’s findings consist of 62 separately numbered paragraphs and its conclusions based on those findings are summarized in 5 pages of its final memorandum opinion. Both the findings and the conclusions include a comprehensive chronological itemization of evidence that the parties used to evaluate all the respective risks faced by reason of Brower’s litigation during the time period March 21, 2001, and final achievement of settlement in July 2002. The findings are supported by the record evidence, and the ultimate conclusions of the court can be summarized as follows:
1. Given the procedural posture of the case, the only way for plaintiff to have prevailed on her negligence claim would have required trial on the fraud claim, appeal thereafter challenging the old summary judgment, reversal of that judgment by the appellate courts, and a new trial thereafter. Revival of the negligence claim was remote at best, both in time and in likelihood of success.
2. Via Christi faced substantial risk on the fraud claims at the time of settlement, and defense counsel strongly believed the trial judge would impose up to $5 million in punitive damages.
3. Although there was a remote possibility of a negligence claim “waiting in the wings” at the time of settlement, the amount of the settlement was based not on that remote possibility, but on eliminating exposure of an “extremely high” verdict being returned on the fraud and spoliation of evidence claim.
4. In an llth-hour memo to the executive committee of the hospital, its general counsel advised it was facing trial in “an extremely difficult and dangerous case” that was “based in fraud” and could result in punitive damages. He assessed the hospital’s exposure at $7 to $10 million plus punitive damages.
We recognize that Via Christi views the risks somewhat differently from what the district court found. The Via Christi lawyers may well have held strong views about the vulnerability of the district court’s summary judgment barring the negligence claim and its likelihood of being reversed on appeal. Likewise, they may have believed their knowledge was superior to that of the Fund’s counsel on many of the questions bearing on risk valuation. Nevertheless, it is not our function to reweigh evidence, evaluate witnesses’ credibility, or redetermine questions of fact; our task ends at the determination whether there is substantial competent evidence to support the district court’s fact findings. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
After an extensive review of the district court’s findings and conclusions, together with the transcript of the bench trial, we are satisfied that the district court’s findings are supported by substantial competent evidence and they adequately support the district court’s conclusion of law that less than $200,000 of the $3.3 million settlement was paid to eliminate the remote possibility that a negligence claim might be revived at some unknown date in the future. Because Via Christi was self-insured for $200,000, the excess liability coverage of the Fund was not triggered, and the Fund was entitled to judgment on Via Christi’s counterclaim.
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Malone, J.:
Billy J. Mitchell appeals the district court’s decision upholding the Kansas Department of Revenue’s (KDR) administrative suspension of his driving privileges for failing a breath test. The sole issue is whether the procedures used for the breath test substantially complied with the procedures set out by the Kansas Department of Health and Environment (KDHE). Mitchell contends that the testing officer failed to comply with the portion of the KDHE protocol that requires an officer to “[k]eep the subject in [the officer’s] immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test.” Under the facts of this case, where the district court found that Mitchell was alone in the restroom out of the officer’s presence for a couple of minutes and that Mitchell consumed a cup of water sometime during the deprivation period, the testing procedures failed to substantially comply with the KDHE protocol. Accordingly, we reverse the district court’s decision upholding the suspension of Mitchell’s driving privileges.
On May 29, 2006, Mitchell was arrested for driving under the influence of alcohol (DUI) and transported to the Neosho County Sheriff s Department for testing. In preparation for the evidentiary breath test, Deputy Brad DeMerritt checked Mitchell’s mouth and then began the mandatory 20-minute observation period at 3; 19 p.m. DeMerritt administered the breath test at 3:44 p.m., and the Intoxilyzer test printout indicated a breath-alcohol concentration of .194. DeMerritt certified that Mitchell failed the breath test, and he served Mitchell with a notice of suspension of his driving privileges.
On June 5, 2006, Mitchell requested an administrative hearing on the suspension of his driving privileges. The administrative hearing was held on September 19, 2006. After considering the testimony of Mitchell and DeMerritt, the hearing officer affirmed the suspension of Mitchell’s driving privileges, issuing an order on October 26, 2006.
On November 3, 2006, Mitchell filed a petition for judicial review, arguing multiple errors in the administrative suspension proceedings. Following a pretrial conference, the district court limited the issue to whether “the testing procedures used substantially complied] with the procedure set out by die Kansas Department of Health and Environment.”
The district court held a bench trial on October 14, 2007. At the hearing, Mitchell testified that about 10 minutes into the observation period, he requested and received a cup of water from a female reserve officer. Mitchell testified that after drinking the water, he received permission from DeMerritt to use the restroom. Because the female reserve officer was present, Mitchell was allowed to close the door of the restroom. Mitchell testified that he was alone in the restroom for 2 to 4 minutes. While he was in the restroom, Mitchell did not vomit or do anything other than use the toilet and wash his hands. When asked whether he belched or burped, Mitchell testified, “I may have, but I don’t honestly remember.”
DeMerritt testified that he did not have a very specific recollection of Mitchell’s 20-minute observation period. DeMerritt recalled that Mitchell went to the restroom, but DeMerritt had no independent recollection of the amount of time Mitchell was in the restroom or whether this was during the 20-minute observation period. DeMerritt testified that he would not have allowed Mitchell to drink water during the observation period because he recognized that this violated KDHE protocol. However, DeMerritt could not refute whether the female reserve officer may have allowed Mitchell to have a cup of water.
On August 15, 2007, the district court issued a memorandum decision and order upholding the administrative suspension of Mitchell’s driving privileges. The district court essentially found the facts in Mitchell’s favor. The district court specifically found that Mitchell was not in DeMerritt’s immediate presence for a continuous period of 20 minutes preceding the breath test. The district court also found that Mitchell consumed a cup of water during the deprivation period. The district court focused on the fact that Mitchell candidly admitted that he had no recollection of belching or burping during the deprivation period. Had Mitchell testified that he belched or burped while he was alone in the bathroom, the district court acknowledged that the testing procedure might have been compromised. Without such evidence, the district court found that Mitchell did not meet his burden.of proving that the testing procedures were not in substantial compliance with the KDHE requirements. The district court concluded that “even though [Mitchell] was out of the officer’s presence for a couple of minutes and may have consumed a cup of water, the testing procedures used substantially complied with the procedures set out by KDHE.” Mitchell timely appeals.
The sole issue in this appeal is whether the district court properly determined that the procedures used for Mitchell’s breath test substantially complied with the KDHE requirements. Mitchell argues that the district court improperly interpreted “substantial compliance” to require Mitchell to prove that the violations of the KDHE protocol in his case contaminated the breath sample or otherwise produced an invalid test result.
Once a law enforcement officer has certified a test refusal or test failure under tire Kansas implied consent statutes, K.S.A. 8-1001 et seq., and the KDR has notified the driver of his or her license suspension, the driver may request an administrative hearing to challenge the suspension. K.S.A. 8-1002(d); K.S.A. 8-1020(a); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 630, 176 P.3d 938 (2008). In the case of a test failure, the statutory scheme'limits the matters the hearing officer may consider, which includes a determination of whether “the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment.” (Emphasis added.) K.S.A. 8-1020(h)(2)(F). At the administrative hearing, the driver bears the burden of proving, by a preponderance of the evidence, that the facts supporting die certification of the test results were false or insufficient to sustain the drivers license suspension. K.S.A. 8-1020(k); Martin, 285 Kan. at 631.
If the administrative suspension is affirmed by the hearing officer, the driver may petition the district court for judicial review of the administrative decision. K.S.A. 8-259; K.S.A. 8-1020(o). The district court conducts a de novo review of the KDR’s decision, but the petitioner bears the burden of establishing error by the administrative agency. K.S.A. 8-1020(p), (q); Martin, 285 Kan. at 631.
In reviewing a district court’s ruling in a driver’s license suspension case, an appellate court typically applies a substantial competent evidence standard. Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 822, 74 P.3d 588 (2003). Substantial evidence is evidence possessing relevance and substance that furnishes a basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is legal and relevant evidence sufficient to reasonably support the conclusion reached by the district court. 31 Kan. App. 2d at 822. However, where the issue raised in a driver’s license suspension case involves strictly a legal question, an appellate court’s review is unlimited. Martin, 285 Kan. at 629. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
Mitchell contends DeMerritt failed to comply with the portion of the KDHE protocol that requires an officer to “[k]eep the subject in [the officer’s] immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test.” Mitchell also contends DeMerritt failed to comply with the portion of the KDHE protocol that states: “During the alcohol deprivation period: Do not allow subject to eat, drink, smoke, or chew gum, or to have any oral intake of anything.” Mitchell notes the district court specifically found that he was alone in the restroom for 2 to 4 minutes and that he consumed a cup of water during the dep rivation period. Mitchell argues that such deviation from the required protocol was sufficient to undermine confidence in the test certification.
The purpose of the 20-minute alcohol deprivation period is for the testing officer to make sure there is no residual alcohol in the subject’s mouth at the time of the breath test. DeMerritt testified that in the 20 minutes before a test, officers are “supposed to observe the person; make sure ihey don’t belch, vomit, cough, [and] of course, introduce anything orally, and we’re not supposed to let them out of our sight.” Clearly, the facts adopted by the district court demonstrated that DeMerritt failed to strictly comply with the KDHE protocol. However, in a driver’s license suspension case challenging whether the breath testing procedures used by the officer complied with the procedures set out by the KDHE, substantial compliance is the standard, and strict compliance with the KDHE testing procedures is not required. K.S.A. 8-1020(h)(2)(F); Schoen, 31 Kan. App. 2d at 823.
In arguing that DeMerritt substantially complied with the approved procedures, the KDR relies on Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 163 P.3d 313 (2006). In Martin, the petitioner was arrested for DUI and subsequently failed a breath test. During the 20-minute observation period, the testing officer stepped out of the room several times but only for a brief period of time on each occasion. A videotape which captured the entire observation period was admitted as evidence at the driver’s license suspension hearing. Although the videotape indicated that the petitioner coughed and cleared his throat several times during the testing period, there was no evidence that the petitioner belched, burped, vomited, regurgitated, or otherwise introduced substance into his mouth from his stomach during the testing period. In fact, the petitioner testified that he did not do so. The petitioner also testified that he did not drink any alcohol during the 20 minutes leading up to the test.
In upholding the petitioner’s driver’s license suspension, the court found that the petitioner had the burden to prove the testing procedures did not substantially comply with the KDHE protocol. The court noted that substantial compliance has been defined as “ ‘ “compliance in respect to the essential matters necessary to assure every reasonable objective.” ’ ” 38 Kan. App. 2d at 9. The court further noted that strict adherence to the KDHE testing procedures has not been required “where there is no evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated.” 38 Kan. App. 2d at 9. The court-relied upon the fact that the observation period was videotaped, there was no evidence that the petitioner belched, burped, vomited, or regurgitated during the testing period, and these facts were confirmed by the petitioner s testimony. Under these circumstances, the court concluded that the testing procedures substantially complied with the KDHE’s “ ‘immediate presence’ ” requirement. 38 Kan. App. 2d at 10.
In another case, State v. Anderson, No. 94,364, unpublished opinion filed April 7, 2006, the defendant challenged his DUI conviction on the ground that the trial court erred in admitting the breath test result into evidence. During the 20-minute observation period, the testing officer permitted the defendant to use the restroom, accompanied by another officer. The defendant returned from the restroom approximately 2 minutes later. Prior to administering the breath test, the testing officer asked the defendant if he had belched, burped, vomited, or brought any fluids up from his stomach at any time during the deprivation period. The defendant indicated that he had not done so.
On appeal, the court affirmed the defendant’s DUI conviction and found substantial compliance with the “ ‘immediate presence’ ” requirement even though the defendant was out of the testing officer’s view for 2 minutes. In doing so, the court found it significant that the defendant admitted that he never belched, burped, vomited, or otherwise drew fluids up from his stomach at’ any timé during the deprivation period. Slip op. at 3.
The KDR argues that the Court of Appeals’ decision in Martin establishes a bright-line test for determining whether the testing procedures used by an officer substantially complies with the KDHE requirements. The KDR focuses on the language in Martin that strict adherence to the testing procedures is not required “where there is no evidence indicating the Intoxilyzer malfunc tioned or the breath sample was contaminated.” 38 Kan. App. 2d at 9. According to the KDR, the burden is on the driver to come forward with some affirmative evidence establishing that the Intoxilyzer malfunctioned or the breath sample was contaminated. Because Mitchell failed to do so, the KDR argues that he failed to meet his burden of proving that the testing procedures were not in substantial compliance with the KDHE protocol.
Mitchell’s case is distinguishable from Martin in several respects. In Martin, the entire observation period was videotaped and the videotape was presented as evidence at the hearing. Here, DeMerritt testified that Mitchell’s booking process was videotaped but the videotape had been recorded over and was not available as evidence. More importantly, the petitioner in Martin testified that he did not belch, burp, vomit, regurgitate, or otherwise introduce a substance from his stomach to his mouth during the testing period. Here, when Mitchell was asked whether he belched or burped while he was alone in the restroom, he testified, “I may have, but I don’t honestly remember.” Finally, the district court specifically found that Mitchell consumed a cup of water during the deprivation period, and this fact was not present in Martin.
The KDR is correct in asserting that the burden of proof was on Mitchell at both the administrative hearing and at the hearing in district court. At the administrative hearing, Mitchell had the burden to prove by a preponderance of the evidence that the facts set out in DeMerritt’s certification were false or insufficient to sustain the driver’s license suspension. K.S.A. 8-1020(k). At the hearing in district court, Mitchell had the burden to show that the agency’s decision should be set aside. K.S.A. 8-1020(q). However, neither subsection of the statute places a burden on Mitchell to provide affirmative evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated. To the extent the KDR argues that such a burden exists, the agency has interpreted this court’s holding in Martin too broadly.
In Martin, the court stated that strict adherence to the KDHE testing procedures is not required where there is no evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated. 38 Kan. App. 2d at 9. This isolated language is some what inconsequential because strict adherence to the KDHE testing procedures is never required in a driver s license suspension case. As we have established, substantial compliance is the standard. Schoen, 31 Kan. App. 2d at 823. Nevertheless, the KDR focuses on this isolated language from Martin and argues that the converse is also true. The KDR argues the burden is on the driver to come forward with some affirmative evidence establishing that the Intoxilyzer malfunctioned or the breath sample was contaminated. Unless die driver can do so, the KDR argues drat the driver fails to meet his or her burden of proving that the testing procedures were not in substantial compliance with the KDHE protocol. This is an unwarranted extension of the court’s holding in Martin and places a burden on the driver that is not contained in the statute.
Although the district court found that Mitchell was out of DeMerritt’s presence for a couple of minutes and that Mitchell consumed a cup of water sometime during the deprivation period, tire district court concluded that the procedures used in Mitchell’s breath test substantially complied with the KDHE protocol. In doing so, the district court indicated that if Mitchell had testified that he belched or burped while he was alone in the restroom, the testing procedures might have been compromised. In the absence of such evidence, the district court found that Mitchell did not meet his burden of proving that the testing procedures were not in substantial compliance with the KDHE requirements. It appears the district court adopted the KDR’s argument that the burden was on Mitchell to provide some affirmative evidence indicating that the breath sample was contaminated. By doing so, the district court imposed a burden on Mitchell that is not contained in the statute.
We recognize that the burden of proof was on Mitchell at both the administrative hearing and at the bench trial in district court. We also recognize that K.S.A. 8-1020(h)(2)(F) only requires substantial compliance with the testing procedures set out by the KDHE, not strict compliance. The substantial compliance standard requires the petitioner in a driver’s license suspension case to demonstrate a violation of the KDHE testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results. This must be determined on a case-by-case basis. If affirmative evidence that a breath sample was not contaminated is presented, as in Martin and Anderson, this is a factor the court may consider in deciding whether substantial compliance with the protocol has been satisfied. However, there is no requirement for the petitioner to come forward with affirmative evidence that the Intoxilyzer malfunctioned or the breath sample was contaminated in order to establish that the testing procedures did not substantially comply with the KDHE protocol.
Here, the district court found that Mitchell was alone in the restroom out of DeMerritt’s presence for a couple of minutes and that Mitchell consumed a cup of water sometime during the deprivation period. This does not constitute substantial compliance with the KDHE procedures. The evidence presented by Mitchell demonstrated a violation of the KDHE procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results. Mitchell did not unequivocally testify that he never belched or burped during tire 20-minute deprivation period, as the drivers testified in Martin and Anderson. Instead, Mitchell testified that he may have done so.
Under the facts of this case, the procedures used in Mitchell’s breath test failed to substantially comply with the KDHE protocol. Mitchell met his burden of showing that the agency’s decision should be set aside. Accordingly, we conclude the district court erred in upholding the suspension of Mitchell’s driving privileges.
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Rulon, C.J.:
Defendant Willis C. Harvey appeals from his conviction and sentence for aggravated escape from custody. We affirm in part, reverse in part, and remand for further proceedings.
Underlying Facts
On the afternoon of September 19, 2006, the defendant, an inmate at the Wichita Work Release Facility, presented a “miscellaneous community pass” to the corrections officer working the control center at the facility. The defendant’s pass was for 30 minutes on the “walk route,” and the officer allowed the defendant to leave after signing the accountability log. The defendant was supposed to return by 1:10 p.m., but he did not return to the facility that day. The defendant was declared an escapee, and a search was conducted of the facility without success.
The defendant did not return to the facility on September 19 or 20, 2006. On the afternoon of September 21, the defendant turned himself in at the Sedgwick County Adult Detention Facility.
Eventually, the State charged the defendant with one count of aggravated escape from custody, in violation of K.S.A. 21-3810(a)(7). Before trial, the State moved to exclude the compulsion defense, contending the defendant did not meet all the conditions under State v. Irons, 250 Kan. 302, 307-09, 827 P.2d 722 (1992), to assert the defense. The district court denied the State’s motion.
At trial, the defendant testified he left the facility because he believed he was going to be killed that day, did not trust anyone at the facility, and wanted to talk to his ex-wife about the situation as she was the only person he trusted. According to the defendant he was afraid he was going to be harmed by members of a skinhead gang at the facility. When the defendant finally talked with his ex-wife on September 21, she convinced him to turn himself in. The defendant supported his compulsion defense with the testimony of his ex-wife and through cross-examination of the State’s witnesses.
The defendant requested and the district court gave the jury a compulsion instruction. The instruction given read:
“Instruction No. 7
“Compulsion is a defense if the following exist:
“1. The defendant is faced with a threat of imminent infliction of death or great bodily harm;
“2. There is no time for complaint to the authorities or there exists a history of futile complaints which malees any result from such complaints illusory;
“3. There is no time or opportunity to resort to the courts;
“4. There is no evidence of force or violence used towards prison personnel or other ’innocent’ persons in tire escape; and
“5. The defendant immediately reports to the proper authorities when he has attained a position of safety from the imminent threat.”
This instruction is nearly word-for-word with the elements for the defense set forth in Irons, as contained in the Comment on PIK Crim. 3d 54.13.
In the course of its deliberations, the jury sent two questions to the court regarding the instruction. The first question was: “Do we have to accept all 5 things on Instruction No. 7 in order to return a verdict of not guilty?” The district court answered: “Yes.” The second question was: “Is the State responsible for proving the following 5 points didn’t exist or is the defense responsible for proving they did exist. (Instruction #7).” The district judge answered this question in open court:
“The answer to this question I’m going to read out of the PIK instruction. These are tire Pattern Instructions of Kansas. And this is from the comment section.
“A person charged with escape from lawful custody may not claim die defense of compulsion unless the following conditions exist.
“The defendant has the responsibility to show that those conditions existed.
“Thank you. That’s your answer.”
The jury was unable to reach a unanimous verdict, and the district court declared a mistrial.
Prior to the second trial, the State renewed its motion to exclude the compulsion defense. The State argued the evidence presented at the first trial showed the elements of the compulsion defense had not been met. The defendant argued due process required he be allowed to present the compulsion defense and the hung jury showed the defense was relevant. The district judge ruled:
“I think that hung jury was pretty much my fault last time. But once I heard the evidence, I was positive about the compulsion. I’m taking the blame, or credit, I don’t know which. I’m not saying it’s bad or good, I don’t care, it doesn’t matter to me whether we get a verdict, other than I feel I’ve not done my job correcdy. It can be guilty or not guilty, but I just want a verdict. I’ve given this great consideration. And after hearing the defendant’s testimony, the entire thing, it did not rise to a compulsion defense.
“In fact, it is case law that sets forth the elements. It’s unpublicized. I believe it was an unpublished opinion, but it very clearly set forth what needed to be proved in order to use a compulsion defense with a aggravated escape from custody, very clear.
“I’m going to allow [the defendant] to testify as to whatever he feels he needs to testify, but I will not instruct on compulsion. And you won’t argue, I won’t allow you to argue it either, so.”
In accordance with this ruling, the district court later clarified that no witness at the second trial, other than the defendant, would be allowed to testify as to the defendant’s reasons for leaving or the alleged threats by the skinhead gang.
At the second trial, the defendant repeated much of his testimony from the first trial. Likewise, the defendant proffered the testimony of the witnesses from the first trial corroborating the defendant’s reasons for leaving the facility.
The district court rejected tire defendant’s request for a compulsion instruction, and the jury found the defendant guilty of aggravated escape from custody. The district court imposed the mitigated presumptive sentence of 122 months’ incarceration and ordered the defendant pay $3,200 in BIDS attorney fees, but it directed the Department of Corrections to determine the defendant’s ability to pay these fees upon his release.
The Compulsion Defense
On appeal, the defendant first argues he was deprived of his constitutional right to a fair trial and his right to present a defense because the district court prevented him from presenting a compulsion defense, which was his only theory of defense.
The State contends the district court properly precluded a compulsion defense under the relevant Kansas statute and case law. Whether the compulsion defense is available to a defendant is a matter of law determined by the court. State v. Alexander, 24 Kan. App. 2d 817, 819, 953 P.2d 685 (1998). This court has unlimited review of such determinations. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
The Alexander court stated that “[t]he exclusion of evidence to support a compulsion defense is not subject to the normal abuse of discretion standard for reviewing a trial court’s evidentiaiy rulings.” 24 Kan. App. 2d at 819. However, in other cases our appel late courts have applied an abuse of discretion standard to the district court’s decision to exclude testimony supporting the compulsion defense. See Irons, 250 Kan. at 306-09; State v. Kelly, 21 Kan. App. 2d 114, 115-18, 896 P.2d 1101, rev. denied 258 Kan. 861 (1995).
The compulsion defense is set forth in K.S.A. 21-3209, which states:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
Our case law has added requirements to the compulsion defense when a defendant seeks to use it in an escape from custody case. In such a case, the defense is not available unless: (1) the inmate faced a specific threat of imminent infliction of death or great bodily harm; (2) there was no time for a complaint to the authorities or there was a history of futile complaints making any result from such complaints illusory; (3) there was no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and (5) the inmate immediately reported to the proper authorities once he or she attained a position of safety from the imminent threat. Irons, 250 Kan. at 307-09.
Kansas cases have followed the majority of jurisdictions in requiring a defendant to present or proffer evidence to the court satisfying all five conditions before the defendant is allowed to present the defense to the jury. See Irons, 250 Kan. at 307; Alexander, 24 Kan. App. 2d at 819-21; Kelly, 21 Kan. App. 2d at 115-18; State v. Pichon, 15 Kan. App. 2d 527, 534-35, 811 P.2d 517, rev. denied 249 Kan. 778 (1991).
The Irons decision instructs Kansas courts to take great care before determining the compulsion defense is unavailable to an escapee, as “motions in limine are not to be used to ‘choke off a valid defense in a criminal action’ ” and “ ‘[i]t is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict. The right to present one’s theory of defense is absolute.’ ” 250 Kan. at 309. We may conclude from Irons the compulsion defense should only be ruled unavailable where the evidence offered by the defendant, viewed in the light most favorable to the defendant, could not provide a substantial basis of fact to reasonably conclude all five required elements were satisfied. See Irons, 250 Kan. at 309; 23A C.J.S., Criminal Law § 1738 (“[Compulsion is an affirmative defense which should not be considered by the jury unless there is substantial evidence to support it.”); see also State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007) (defining “substantial evidence”).
The question here is whether the evidence offered by the defendant as to the five elements entitled him to present his compulsion defense to the jury.
First, the defendant had to face a specific threat of imminent infliction of death or great bodily harm. At the first trial, the defendant testified he “was in a state to believe that [he] was going to be killed that day because of some things in [his] past.” According to the defendant he had been “running from facility to facility” from the skinhead gang, that one of the gang leaders had recently arrived at the facility, and on the day of the escape, two gang members approached him but were stopped when a corrections officer came into the area. The defendant testified, “I knew what was going down. I didn’t have to think twice about it.”
At the second trial, the defendant testified the gang members approached him the day of the escape “with some type of vendetta” against him and threatened “to do great bodily harm at me, threatened to take my life at the time.” According to the defendant, this incident scared him and made him want to leave the facility.
The defendant’s testimony, viewed in the light most favorable to him, satisfies the first requirement.
Next, the defendant had to show there was no time for a complaint to the authorities or there was a history of futile complaints making any result from such complaints illusory. The defendant conceded he did not report the threat or incident to any of the corrections officers he encountered before his escape because he “didn’t trust anybody.” This record reflects about 40 minutes passed between the time of the incident and the escape.
The third requirement is there was no time or opportunity to resort to the courts. The State does not appear to challenge this element on appeal. The defendant’s testimony was that about 40 minutes passed between the time of the threat incident until the escape. Taking the defendant’s evidence as to this requirement in the light most favorable to him, it is unlikely he had the time or opportunity to resort to the courts.
The parties agree there is no evidence the defendant used force or violence in escaping; thus, the fourth element is not at issue.
Finally, the defendant had to show that he immediately reported to the proper authorities once he attained a position of safety from the imminent threat. The defendant conceded at the second trial he was in a position of safety as soon as he left the facility and none of the persons who threatened him followed him out of the facility. Nevertheless, the defendant did not contact the authorities or turn himself in until 2 days after the escape. The defendant asserts he left the facility so he could talk to his ex-wife, the “only person he trusted.” However, the defendant admitted his failure to even attempt to contact any authorities for 2 days after his escape.
The defendant compares his situation regarding the fifth element to that of the defendant in Irons, where our Supreme Court found the fifth element was satisfied. 250 Kan. at 309-10. However, there are important factual differences between this situation and the situation in Irons. In Irons, after being threatened, the inmate contacted court and facility officials before, during, and immediately after the time he was supposed to return to the work release facility, and he refused to return to the facility because the officials were not sufficiently responsive to his concerns. Here, on the other hand, the defendant made no attempt to contact court or facility officials for 2 days after he was supposed to return to the facility.
In light of the defendant’s admission he had attained a position of safety from the imminent threat once he left the facility, his desire to speak with his ex-wife and the resulting delay do not provide sufficient evidence, even when viewed in the light most favorable, to the defendant, to satisfy the fifth element.
We conclude the evidence offered by the defendant failed to satisfy two of the five elements he was required to show in order to present the compulsion defense to the jury.
Irons clearly requires a defendant to proffer evidence meeting the five requirements set forth above before the defendant may present the compulsion defense to a jury. 250 Kan. at 309. The defendant here failed to meet his burden under Irons.
The district court did not err in granting the State’s motion to exclude the compulsion defense, and it did not abuse its discretion in excluding the testimony offered in support of the defense.
Compulsion Instruction
Next, the defendant asserts the district court erred in denying his request for a compulsion instruction at the second trial.
The State contends the district court correctly refused the compulsion instruction because the defendant failed to satisfy the threshold requirements for a compulsion defense.
“ ‘In a criminal action, the district court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the district court’s refusal to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theoiy of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony.’ [Citations omitted.]” State v. Gonzalez, 282 Kan. 73, 106-07, 145 P.3d 18 (2006).
Here, the above discussion clearly established there was not supporting evidence for two of the elements of the defendant’s compulsion defense. As such, the defendant was not entitled to an instruction on the defense, and the district court did not err in refusing the defendant’s request for such an instruction.
The Robinson Issue
Finally, the defendant asserts the district court erred in delegating to the Department of Corrections the determination of the defendant’s ability to pay the Board of Indigents’ Defense Services (BIDS) attorney fees. The defendant contends such order violated our Supreme Court’s directive that the sentencing court consider on the record the financial resources of the defendant and the nature of the burden that payment of the fees would impose. See State v. Robinson, 281 Kan. 538, 541-44, 132 P.3d 934 (2006).
The State concedes the district court did not follow the required Robinson procedure for assessing fees and thus the case must be remanded for compliance with Robinson. We agree.
Clearly, the district court failed to comply with Robinson. The attorney fee assessment is vacated, and the case is remanded for further proceedings in compliance with Robinson and K.S.A. 22-4513.
We affirm the defendant’s conviction and sentence, vacate the BIDS attorney fee assessment, and remand the case with directions. | [
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Rulon, C.J.:
The State appeals, as a question reserved by the prosecution under K.S.A. 22-3602(b)(3), the district court’s decision that it had “reserved” its jurisdiction to release defendant Donna K. Trostle (Hanson) from jail prior to the completion of the 1-year jail sentence originally imposed. The State contends this was an unlawful modification of the defendant’s sentence and the district court was without jurisdiction to take such action. We agree.
Underlying Facts
The State charged the defendant in case 06 CR 367 with four counts of criminal conduct: (1) three alternative counts of felony driving under the influence (DUI), in violation of K.S.A. 2006 Supp. 8-1567(g); (2) one count of no proof of liability insurance, in violation of K.S.A. 2006 Supp. 40-3104(d); (3) one count of transporting an open container, in violation of K.S.A. 2006 Supp. 8-1599; and (4) one count of driving on the left side of the roadway, in violation of K.S.A. 8-1514.
The defendant and the State entered into a plea agreement covering case 06 CR 367 and four other unrelated cases. The defendant agreed to plead no contest to all four counts in case 06 CR 367 and to all three counts in Franklin County case 07 CR 90. In exchange, the State agreed to dismiss the other three cases.
The parties agreed to jointly recommend the defendant be sentenced to and serve a 1-year jail sentence for the DUI count in case 06 CR 367, to be served consecutively to a 6-month jail sentence recommended by the parties for case 07 CR 90.
Eventually, the district court accepted the defendant’s no contest pleas to the four counts in case 06 CR 367 and found her guilty of all counts. The district court additionally accepted the defendant’s no contest pleas to the three counts in case 07 .CR 90 and found her guilty of all counts. The district court granted the State’s motion to dismiss three other cases.
At sentencing the parties recommended the defendant serve 1 year in jail for the DUI conviction, with no provision for work release or electronic monitoring, due to the defendant’s prior record. The district court sentenced the defendant to 1 year in the custody of the Franklin County Sheriff s Office for the felony DUI, with credit for time served, and assessed the statutory fine of $2,500. After assessing further fines for the remaining counts in case 06 CR 367, the district judge stated, “I would reserve juris diction in this case to consider an alternative to incarceration, but no motions for alternatives to incarceration would be entertained by the court until the defendant has served nine months county jail, including whatever jail time she may have already served awaiting disposition of the action.” The court then ordered fees, costs, and postrelease treatment and supervision.
The district court then sentenced the defendant for her battery against a law enforcement officer conviction in case 07 CR 90 to 6 months in the county jail to be served consecutive to the sentence in case 06 CR 367. The court further stated:
“All right, as a — the court, without me saying it, has jurisdiction to consider any motion for parole from the 6 month battery on a law enforcement sentence because that’s a misdemeanor, but obviously no motions could even be filed until the defendant has flattened her sentence on the felony DUI. Let me go ahead and fill out these commitment orders here.”
The district court subsequently executed a commitment order for 1 year and filed a journal entry of judgment reflecting a 12-month jail sentence in case 06 CR 367. The journal entry included the notation: “Ct. reserves jurisdiction to entertain mot for alternative sent after serving 9 mos.”
After having served nearly 9 months, the defendant filed a pleading styled “Motion for Modification of Sentence to Electronic Monitoring,” noting the district court had “reserved jurisdiction to entertain a motion for alternative sentencing after the defendant had served 9 months.” Because the defendant’s total time served was nearly 9 months, she requested release from jail and placement in electronic monitoring so she could relocate to Lawrence to live with her son.
The State filed a written response to the motion, asserting the district court lacked jurisdiction to modify a sentence legally imposed under the felony DUI statute and asking the district court to deny the motion. During a hearing on the defendant’s motion, the defendant stated she should have titled the motion as a motion for alternative sentencing instead of as a motion for modification of sentence, and offered various reasons in support of alternative sentencing, including family and medical history and behavior while in jail.
The State responded the district court was without statutory authority to modify the sentence or to reserve jurisdiction to do so and the defendant’s requested modification would violate the plea agreement. The defendant argued the State missed its opportunity to raise these objections by failing to appeal from the sentencing and by signing the journal entry in which the district court reserved jurisdiction.
After a hearing on the defendant’s motion, the district court found it had jurisdiction to modify the defendant’s sentence. The district court cited the defendant’s good behavior while in jail and then released her from custody in case 06 CR 367 while placing her on 12 months’ probation in case 07 CR 90.
This appeal followed.
The State appeals the district court’s decision to modify the defendant’s sentence as a question reserved under K.S.A. 22-3602(b)(3). Our Supreme Court has concluded:
“[T]he purpose of a State’s appeal on a question reserved is to provide an answer to a question of statewide importance that will aid in the correct and uniform administration of the criminal law in future cases. [Citation omitted.] The court will decline to entertain questions reserved by the State that have insufficient statewide importance. [Citation omitted.]” State v. Mathis, 281 Kan. 99, 103, 130 P.3d 14 (2006).
The defendant contends the question here does not raise a question of statewide importance and does not have any implication beyond the unique facts of the present case. We conclude the district court’s approach to sentencing in this case presents a novel question of law as to a district court’s postsentencing jurisdiction in a criminal case, and the answer to this question will indeed “aid in the correct and uniform administration of the criminal law in future cases.” We accept jurisdiction of the question reserved by the State.
Jurisdiction to Modify Due to “Reservation” of Jurisdiction
The question presented by the State is whether the district court had jurisdiction to modify the defendant’s sentence and release her from jail before the completion of the 1-year jail sentence originally imposed by the court. The State contends the district court had no such authority under the applicable Kansas statutory and case law. We agree.
The defendant contends the original sentence essentially provided for 9 months’ incarceration followed by alternative sentencing and as such the district court’s later actions did not constitute a modification of the sentence.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). To the extent this case will require statutory interpretation, such interpretation is a question of law over which this court has unlimited review. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
Our Supreme Court has held the Kansas Sentencing Guidelines Act does not vest a district court with continuing jurisdiction after a sentencing proceeding is concluded. State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996).
The defendant here was sentenced under K.S.A. 2006 Supp. 8-1567(g), a felony DUI provision. In State v. Anthony, 274 Kan. 998, 1001-02, 58 P.3d 742 (2002), our Supreme Court extended its holding in Miller to include sentencing for felony DUI under K.S.A. 8-1567. Once a court has imposed a legal sentence for felony DUI under 8-1567, the district court has no jurisdiction to modify that sentence except to correct “arithmetic or clerical errors” pursuant to K.S.A. 21-4721(i).
The focus of the defendant’s argument is whether the district court’s actions actually constituted a modification of the sentence. According to the defendant, her postsentencing motion was “in-artfully designated as a motion for modification.” The defendant claims the district court’s provision for alternative sentencing after 9 months was included or “reserved” in the original sentence and thus no motion to modify was necessary.
At the hearing on the defendant’s motion to modify sentence the district judge stated:
“I did on June 18th reserve jurisdiction, and perhaps I made die same slight error that [defense counsel] did in filing her motion. I may have used the incorrect term. I believe it was fully within my authority and jurisdiction on June 18th of ’07 to impose a sentence which included after the expiration of 9 months consid ering release on electronic monitoring or alternatives to incarceration. Whether that’s actually reserving jurisdiction or making that a part of my sentence in June of 20071 think is basically semantics, but I would find that I do have the authority to consider this motion for modification or this motion to enforce what the court indicated it would consider back in June of ’07.”
Despite the position of the defendant and the district court, the record here reflects an unlawful sentence modification occurred.
A sentence is effective when pronounced from the bench, and the sentencing statutes give the district court no continuing jurisdiction after the sentencing proceeding is concluded. Miller, 260 Kan. at 900. If the district court wanted to impose alternative sentencing, it needed to be ordered while originally- sentencing the defendant. Instead, the district court sentenced the defendant to 1 year in the custody of the Franklin County Sheriffs Office. After imposition of sentence, no modification of the sentence is permissible, despite a prior “reservation” of jurisdiction to do so.
By releasing the defendant upon her motion, the district court effectively modified her sentence.
Appropriateness of Remand
As a result of a colloquy between this court and the prosecutor during oral argument, we need not consider the appropriateness of remand for imposition of the original sentence.
The State’s appeal on a question reserved is sustained. | [
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Leben, J.:
Mark and Monessa Hemphill filed suit against Ford Motor Company, Fenton Motors (a Ford dealer), and Daimler-Chrysler Services North America, LLC (a car-financing entity doing business as “Chrysler Financial”) for claims arising from the Hemphills’ purchase of a Ford Mustang convertible. The purchase was financed through an agreement between the Hemphills, Fen-ton Motors, and Chrysler Financial, and the finance agreement contained an arbitration clause. When the Hemphills filed suit, all three defendants moved to compel arbitration, and the district court granted that motion and stayed the suit pending arbitration.
The arbitrator issued an award granting some of the Hemphills’ claims against Fenton Motors but also, in an amended award, granted Chrysler Financial’s cross-claim against the Hemphills for a deficiency judgment on amounts still owed on the purchase. After the district court confirmed the arbitration award without objection, the Hemphills appealed, challenging the decision to compel arbitration and the arbitrator’s authority to amend the arbitration award.
The Hemphills have appealed for different reasons as to each defendant:
• As to Fenton Motors, the Hemphills claim that because the initial purchase order didn’t include an arbitration provision, Fenton Motors can’t require arbitration based on an arbitration provision signed later in a financing document.
• As to Chrysler Financial, the Hemphills claim that the arbitrator had no authority to issue an amended award. Thus, because the arbitrator’s initial award omitted the deficiency judgment for what the Hemphills still owed on the car, they contend that the arbitrator couldn’t later amend the award to grant the deficiency judgment to Chrysler Financial.
• As to Ford Motor Company, the Hemphills claim that because Ford wasn’t a signatory to the financing contract, it can’t require arbitration.
We do not reach the merits of the Hemphills’ appeal regarding Fenton Motors and Chrysler Financial. In both cases, the Hemp-hills have not preserved their appellate rights.
After arbitration, Fenton Motors paid the Hemphills the money awarded by the arbitrator, and the Hemphills cashed the check. Under the rule of acquiescence, a litigant who accepts the benefits of a judgment may not appeal that judgment. Troyer v. Gilliland, 247 Kan. 479, Syl., 799 P.2d 501 (1990). Having obtained the benefit of a money judgment against Fenton Motors, the Hemphills may not appeal that same judgment in the hope of obtaining greater damages on the same claims that led to the arbitrator s award.
The Hemphills waived any right to appeal the arbitrator’s authority to amend the award in favor of Chrysler Financial: they didn’t raise the issue in the district court and didn’t object to a motion to confirm the award. An arbitration award may be challenged at confirmation on the basis that the arbitrator exceeded his or her authority, see K.S.A. 5-412(a)(3); 9 U.S.C. § 10(a)(4) (2006), so the issue could have — and should have — been raised first before the district court. But an issue not raised before the district court may not be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
We are left, then, only with the Hemphills’ appeal regarding Ford Motor Company. At issue is whether Ford, which wasn’t a party to the contract containing the arbitration agreement, may nonetheless compel arbitration of the Hemphills’ claims against it. We don’t find that the Hemphills have acquiesced in the judgment in favor of Ford; the Hemphills didn’t recover a money judgment against Ford, and their acceptance of payment from Fenton Motors doesn’t logically relate to whether the Hemphills’ claims against Ford are subject to arbitration. But because the Hemphills’ claims against Ford were inextricably intertwined with their substantive claims against Fenton Motors and Chrysler Financial, the parties to the arbitration agreement, we conclude that the Hemp-hills were estopped from avoiding arbitration with Ford.
Even though it appears that this appeal has been greatly simplified, since we reach the merits only of the Hemphills’ appeal regarding Ford, most of the issues the parties have briefed and argued retain significance on whether Ford had a right to compel arbitration of the Hemphills’ claims against it. That’s because any right Ford had to compel arbitration was a derivative one based on the rights of Fenton Motors and Chrysler Financial to compel arbitration, which were gained through a written contract Ford was not a party to. So, in determining whether Ford had the right to compel arbitration, we first must assure ourselves that Fenton Motors or Chrysler Financial or both had that right as well. If so, then we must assure ourselves that the claims against Ford were suffi ciently intertwined with those that the Hemphills agreed to arbitrate that the Hemphills should be required to pursue the claims against Ford in the same arbitration proceeding.
Factual Background
Before we get to the specific legal claims, let’s review the key facts and contracts that will feature prominently in our analysis.
The Hemphills bought a 2004 Ford Mustang convertible from Fenton Motors. The first document they signed was a Retail Order for a Motor Vehicle, under which they agreed to buy the convertible. They paid $3,000 in cash and planned to finance the rest of the purchase price. The Hemphills took possession of the car the same day they signed the purchase order, and a request for financing was pending at that time with Ford Motor Credit. Fenton Motors told the Hemphills the next day that Ford Motor Credit turned them down for financing, and Chrysler Financial then approved financing.
Fenton Motors prepared a financing contract that was to be assigned to Chrysler Financial, and the Hemphills signed it. That financing contract was between the Hemphills, as buyers, and Fen-ton Motors, as creditor. By signing the agreement, the Hemphills chose to purchase the car on credit rather than for cash. The agreement contained an arbitration clause that allowed the Hemphills, Fenton Motors, or Chrysler Financial (as an assignee of Fenton Motors) to request arbitration to settle any dispute between them that related to the credit application, the financing contract, or the resulting transaction:
“Any claim or dispute, whether in contract, tort or otherwise (including any dispute over the interpretation, scope, or validity of this contract, the arbitration clause or the arbitrability of any issue), between us or Creditor’s employees, agents, successors or assigns, which arise out of or relate to a credit application, this contract, or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at the election of either of us (or the election of any such third party), be resolved by a neutral, binding arbitration and not by a court action.”
The Hemphills claim that the car’s convertible top leaked since shortly after they bought it and that several attempts to fix it were unsuccessful. After those repair attempts, the Hemphills sent notice that they were revoking acceptance of the car to Fenton Motors and Ford; they also told Chrysler Financial that no more payments would be made, which led Chrysler Financial to repossess the car.
The Hemphills filed suit against Fenton Motors, Ford, and Chrysler Financial. The defendants moved to compel the Hemp-hills to arbitrate the claims, and the district court granted that motion over the Hemphills’ objection. The arbitrator granted an award in favor of the Hemphills against Fenton Motors for damages of $1,133.68 plus interest, a civil penalty of $1,500, and attorney fees of $3,000. In an amended award, the arbitrator granted a deficiency judgment in favor of Chiysler Financial against the Hemphills for $11,091.15 still owed on the car. The arbitrator denied the Hemp-hills’ claims against Ford. The district court confirmed the arbitration award in an agreed order; no party objected to the confirmation of the award. The Hemphills then filed this appeal,
I. The Hemphills’ Acceptance of Payment from Fenton Motors Does Not Constitute Acquiescence in the Judgment in Favor of Ford.
Ford argued in its joint brief with Fenton Motors that the Hemphills acquiesced in the judgment so they were barred from appealing the district court’s decision that Ford could compel arbitration. Ford suggests that the Hemphills “accepted] full satisfaction of tire judgment in their favor,” but Ford overlooks the lack of any judgment in favor of the Hemphills against Ford. The Hemphills recovered only against Fenton Motors. Against Ford, the Hemphills lost on the choice of forum when the district court overruled their objection to arbitration; they then lost in arbitration on the merits of all claims against Ford.
The question, then, is this: when the Hemphills accepted Fenton Motors’ payment for the judgment against it, did the Hemphills somehow also acquiesce to the separate judgment in favor of Ford? We think not.
A party’s acceptance of payment on a judgment generally constitutes acquiescence and thus ehminates the right of appeal. But this general rule has exceptions even when partial payment is ac cepted from the party against which judgment was entered: “[S]o long as the issues on appeal cannot affect the payments made or burdens assumed and such payment or burden is not involved in the issues on appeal,” there is no acquiescence. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶¶ 6-8, 597 P.2d 1080 (1979). Thus, when an insurance company made payment of some, but not all, of tire disability payments it had been ordered to pay while an appeal was pending, there was no acquiescence because the insurance company did not dispute the policyholder’s right to them. 226 Kan. at 231-32.
In our case, the Hemphills not only didn’t accept a payment on a judgment against Ford (because there was no judgment against Ford), but also the payment they did accept from Fenton Motors had nothing to do with the issues they have appealed regarding Ford. The Hemphills’ sole basis for appeal against Ford is their contention that their claims against Ford weren’t subject to arbitration. The success or failure of that appeal cannot impact the judgment against Fenton Motors on which payment was accepted. If the Hemphills win their appeal against Ford, a lawsuit would proceed between the Hemphills and Ford. The Hemphills may only collect their damages once, so they may be entitled to a credit for damages already recovered against some other party, but the claim itself isn’t impacted by the mere existence of some credit against damages. On the other hand, if the Hemphills lose their appeal against Ford, their acceptance of payment from Fenton Motors still has no impact. The Hemphills received no recovery against Ford in arbitration, so the payment was not related to Ford under the existing judgment.
The situation is quite different with respect to Fenton Motors, where we have ruled the Hemphills have lost their appellate rights through acquiescence. If the Hemphills were to win their appeal against Fenton Motors, the arbitration award would be set aside, and the parties would start over toward resolving the merits in litigation. With the arbitration award set aside, there would be no uncontested amount that the Hemphills could accept without acquiescence. That is different from Brown, where there was no ac quiescence where the insurance company did not contest the benefits that were paid and accepted while the appeal was pending.
The doctrine of acquiescence is based on the inconsistency between accepting some benefit or burden from a judgment while appealing the judgment itself. Brown, 226 Kan. 223, Syl. ¶ 6. Thus, it’s inconsistent to accept partial payment on a judgment when a party might later have to pay all or part of it back. But there’s no risk of that here with respect to the Hemphills’ appeal against Ford. Whether the Hemphills win or lose against Ford, the Hemphills could not be required to pay back to Fenton Motors money that it had paid to them. The Hemphills have not acquiesced in any judgment against Ford, and they are not barred by the doctrine of acquiescence from pursuing an appeal of the district court’s decision to require arbitration of their claims against Ford.
II. Fenton Motors and Chrysler Financial Both Had the Right to Compel Arbitration of the Claims Against Them.
We turn then to whether Fenton Motors and Chrysler Financial had the right to compel arbitration of the Hemphills’ claims against them. If not, then Ford could have no derivative right to compel arbitration.
Chrysler Financial’s right to compel arbitration is straightforward. The Hemphills had no relationship with Chrysler Financial except for the financing of this car purchase. The credit arrangements for that transaction were made by contract between the Hemphills as buyers and Fenton Motors as creditor, and Fenton Motors then assigned the contract to Chrysler Financial. That contract expressly allowed for arbitration of any claim or dispute “between us,” i.e., the Hemphills and Fenton Motors, or “Creditor’s . . . assigns,” i.e., Chrysler Financial, so long as the dispute related to the financing contract “or any resulting transaction or relationship.”
The Hemphills bought the car through Chrysler Financial’s extension of credit, and the Hemphills had no relationship with Chrysler Financial other than the credit agreement. Their claims against Chrysler Financial necessarily arise out of and relate to that contract. Thus, Chrysler Financial had a right to compel arbitration of the claims against it.
Fenton Motors was a party to that same financing agreement, which contained the arbitration provision. But the Hemphills argue that they had already agreed to buy the car through the Retail Order for a Motor Vehicle, which didn’t include an arbitration agreement. Based on that, the Hemphills contend that Fenton Motors gave them no new consideration in exchange for the arbitration provision in the later agreement, so it shouldn’t be binding on them.
The arbitration clause in the financing agreement said that the transaction was one in interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2006), would govern. Because Kansas procedural law generally governs where it doesn’t conflict with federal substantive law, Kansas courts have looked to both state and federal arbitration laws in resolving cases with arbitration issues. See MBNA America Bank v. Credit, 281 Kan. 655, 657, 132 P.3d 898 (2006). Neither party has suggested any substantive difference between federal and state arbitration statutes that might impact the issues in this case.
Federal cases have dealt with the question of when an arbitration agreement in only one of two related contracts may be applied to disputes arising under the contract that had no arbitration provision in it. When an arbitration agreement is broadly written, providing that any claim that “relates to” the underlying contract is subject to arbitration, then other agreements between the same parties that don’t themselves contain an arbitration agreement may well be subject to arbitration too. In addition, when a third party is involved in claims arising under the agreement with no arbitration provision — but the claims arising out of that agreement are intertwined with ones involving parties who signed the related agreement agreeing to arbitration — the third party may compel arbitration of the intertwined disputes. See Sourcing Unlimited, Inc. v. Asimco Intern., Inc., 526 F.3d 38, 46-47 (1st Cir. 2008) (signatory to arbitration agreement may be compelled to arbitrate claim against nonsignatory when that claim is intertwined widi the agreement containing the arbitration provision); JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 177-78 (2d Cir. 2004) (same); Ford Motor Co. v. Ables, 207 Fed. Appx. 443, 448 (5th Cir. 2006) (same). By the enactment of the Federal Arbitration Act, Congress established a strong national policy favoring arbitration of claims. Vaden v. Discover Bank, 556 U.S. 49, 173 L. Ed. 2d 206, 129 S. Ct. 1262, 1271 (2009). Kansas has also recognized a strong public policy in enforcing arbitration agreements, such that courts generally seek to uphold arbitration agreements even in the face of some uncertainty. City of Andover v. Southwestern Bell Telephone, 37 Kan. App. 2d 358, 361, 153 P.3d 561 (2007). Thus, it is not surprising that a broadly written arbitration provision covering any claims “related to” the underlying contract may bring within its scope disputes that arise out of a separate- agreement. See Skewes v. Shearson Lehman Bros., 250 Kan. 574, Syl. ¶ 3, 829 P.2d 874 (1992) (under Federal Arbitration Act, any doubts about whether arbitration is required should be resolved in favor of arbitration).
Synthesizing the federal caselaw, the Kansas federal court recently oudined a set of factors to consider in determining whether to compel arbitration of a dispute arising under an agreement that has no arbitration clause when a related contract contains a broad provision to compel arbitration: “(1) whether the agreements incorporate or reference each other; (2) whether the agreements are dependent on each other or relate to the same subject matter; (3) whether the arbitration clause specifically excludes certain claims; (4) whether the agreements are executed closely in time and by the same parties. [Citations omitted.]” Consolidated Brokers Ins. v. Pan-American Assur., 427 F. Supp. 2d 1074, 1082 (D. Kan. 2006).
The Hemphills’ argument that Fenton Motors can’t compel arbitration of their disputes discounts the obvious relationship between the initial purchase agreement and the financing agreement. The purchase agreement contemplated a credit purchase: the Hemphills paid $3,000 in cash and had an unpaid balance “due on delivery” of $23,982.34. In addition, the purchase agreement called for them to “execute such other forms of agreement or documents as may be required by the terms and conditions of payment.” Of course, the Hemphills could have arranged financing on their own with some entity that did not require arbitration, but they soon entered into the credit agreement with Fenton Motors, which it assigned to Chrysler Financial — a credit agreement that included the arbitration provision.
Under the factors set out in Consolidated Brokers Insurance Services, (1) the agreements at issue here do reference one another; (2) they relate to the same subject matter, purchase of the car; (3) no disputes are explicitly excluded from arbitration; and (4) the same parties entered the agreements within a close time period. We conclude that the purchase contract and the financing contract were sufficiently related that Fenton Motors, a party to both agreements, could compel arbitration regarding a dispute arising out of either agreement. See Ables, 207 Fed. Appx. at 449 (finding that tort and contract claims against manufacturer were subject to arbitration under financing agreement, not signed by manufacturer, used to finance car purchase when claims were intertwined); Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380-81 (Ala. 2006) (finding that contract and warranty claims against manufacturer were subject to arbitration under an arbitration agreement with the dealer when claims against both were intertwined).
III. Because the Claims Against Fenton Motors and Chrysler Financial Were Closely Intertwined with Those Against Ford, the Hemphills Could Not Stop Ford from Having the Claims Against It Resolved Along with the Claims Against the Other Defendants.
Ford was not a party to the financing agreement, which contained the arbitration provision. Nor was Ford explicitly covered there. The parties listed in the arbitration provision were the Hemphills and Fenton (“us”) or one of the “Creditor’s” (Fenton Motors) “employees, agents, successors or assigns.” Chrysler Financial was the assignee of Fenton Motors, but Ford wasn’t.
Ford argues that it is covered by the language referencing “third parties who do not sign this contract.” The arbitration agreement provides two explicit requirements for its application:
• the dispute must be “between” the Hemphills and either Fen-ton Motors or one of its assigns or agents; and
• the dispute must “arise out of or relate to a credit application, this contract, or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract).”
Ford has skipped over the first of these two separate requirements. Ford does not claim that it was an agent or assignee of Fenton Motors, and it certainly was not an agent or assignee of Fenton Motors with respect to Fenton Motors’ role as their creditor: Ford played no role in financing the purchase. Thus, the Hemphills did not agree to arbitrate claims against Ford by entering into the financing agreement.
But that’s not the end of the matter. Even when an arbitration provision doesn’t provide that a third party may compel arbitration of disputes, that may still be the net result if the dispute with the third party is closely connected to disputes that the provision explicitly covers. Courts have reached this result based on an estoppel theory. Under that theory, the Hemphills might be estopped, or precluded, from opposing arbitration of their disputes with Ford if those disputes are closely connected to the disputes with Fenton Motors and Chrysler Financial, since the Hemphills did agree to arbitration of those matters.
There is substantial legal support for the estoppel theoiy Ford presents. Indeed, at least seven federal circuits have recognized that a nonsignatory to the arbitration agreement may compel a party that signed the arbitration provision to arbitrate a claim that is closely intertwined with ones covered by the arbitration provision. See Sourcing Unlimited, Inc. v. Asimco Intern., Inc., 526 F.3d 38 (1st Cir. 2008); Denney v. BDO Seidman, L.L.P., 412 F.3d 58, 70 (2d Cir. 2005); E.I. DuPont de Nemours v. Rhone Poulenc Fiber, 269 F.3d 187, 199-02 (3d Cir. 2001); Long v. Silver, 248 F.3d 309, 320 (4th Cir. 2001); Grigson v. Creative Artists Agency, 210 F.3d 524, 527-28 (5th Cir. 2000); CD Partners, LLC v. Grizzle, 424 F.3d 795, 798 (8th Cir. 2005); MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999). Although the test may be stated in varied terms in these cases, it boils down to how close a connection exists between the claims explicitly subject to arbitration and those involving the party that didn’t sign the arbitration agreement. The Eleventh Circuit’s phrasing is typical: Equitable estoppel should be applied “ when the signatory [to the contract containing the arbitration clause] raises allegations of . . . substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.’ ” MS Dealer Service Corp., 177 F.3d at 947.
The Hemphills’ claims against Ford are so closely connected to their claims against Fenton Motors and Chrysler Financial that the Hemphills are estopped from refusing Ford’s attempt to compel arbitration. The Hemphills set out nine counts in their amended complaint. A review of the allegations shows the substantially connected nature of the claims against Ford with claims made against Fenton Motors or Chrysler Financial:
• Counts 1 and 2 alleged breach of express and implied warranties against both Ford and Fenton Motors. The Hemphills said they made demand on both Ford and Fenton Motors to repair tire vehicle and notified both that they were revoking acceptance of the car after it hadn’t been repaired. The Hemphills also sought the same relief against both.
• Count 3 alleges Ford’s violation of the Kansas lemon law, K.S.A. 50-645. Count 5 alleges Ford’s violation of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. The Hemp-hills allege that Ford said it would make needed repairs but didn’t do so. Their allegations specifically bring the dealer into play, alleging that Ford “represented, through its repair agent, that the convertible roof system was fully repaired . . . when in fact, it was not.” Count 3 specifically sought cancellation of the purchase contract, but that contract was with Fenton Motors, not Ford.
• Count 4 alleges Ford’s violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. The Hemphills again allege that Ford, “through its dealer repair agents,” failed to make repairs. In addition, the Hemphills allege that both Ford and Fenton Motors were suppliers under the Magnuson-Moss Act.
• Count 6 alleges that Fenton Motors violated the Kansas Consumer Protection Act by engaging in deceptive acts or practices, including refusing the Hemphills’ revocation of acceptance. As previously noted, the Hemphills alleged in Count 1 that they demanded to revoke acceptance on both Ford and Fenton Motors; also in Count 1, the Hemphills sought court-ordered revocation of acceptance “from the manufacturer and dealer.”
• Counts 7, 8, and 9 set out claims against Chrysler Financial. In Count 7, the Hemphills alleged that Chrysler Financial converted their car by repossessing it despite notice of the Hemphills’ revocation of acceptance to Ford and Fenton Motors. In Count 8, the Hemphills asserted that Chrysler Financial violated the Uniform Commercial Code when Chrysler Financial refused to release its security interest in the car. In Count 9, the Hemphills asserted that Chrysler Financial violated the Kansas Consumer Protection Act based on its failure to recognize the Hemphills’ superior rights to the car. The Hemphills’ claims on all three counts rested on their assertion that Chrysler’s security interest in the car was subject to all of the Hemphills’ “claims and defenses” against Fenton Motors and Ford.
In sum, the Hemphills claimed that the car made by Ford leaked from the start, and that Ford, with the help of its dealer Fenton Motors, didn’t fix it. The Hemphills claimed the same right to revoke acceptance of the car against both Ford and Fenton Motors. And the Hemphills’ claims against Chrysler Financial were all based on the theoiy that Chrysler Financial’s interests were subordinate to the Hemphills’ claims and defenses against Ford and Fenton Motors. Because the Hemphills agreed to arbitrate their claims against Fenton Motors and Chrysler Financial, it makes sense to require that the closely connected claims against Ford be arbitrated too. It would be senseless to have parallel arbitration and court proceedings both devoted to determining whether and why the car leaked, whether the car could be fixed, and what was said by whom and to whom throughout the parties’ dealings.
IV. The Magnuson-Moss Warranty Act Does Not Prohibit Arbitration of Claims Arising Under That Statute.
The Hemphills have one final argument against Ford’s right to compel arbitration. The Hemphills included a claim under the Magnuson-Moss Warranty Act, and they argue that claims under that statute are not subject to arbitration. While there is some legal support for the Hemphills on this point, we conclude that the statutory language cannot be read to preclude arbitration given the underlying federal policy in favor of arbitration agreements.
Let’s start with the statutoiy language. The Hemphills claim that 15 U.S.C. section 2310(a)(3)(C)(2006), a section authorizing informal dispute-settlement procedures, prohibits arbitration of Magnuson-Moss Act claims, but nothing in that provision even mentions arbitration:
“(3) One or more warrantors may establish an informal dispute settlement procedure which meets the requirements of the Commission’s rules under paragraph (2). If—
“(A) a warrantor establishes such a procedure,
“(B) such procedure, and its implementation, meets the requirements of such rules, and
“(C) he incorporates in a written warranty a requirement that the consumer resort to such procedure before pursuing any legal remedy under this section respecting such warranty,
“then (i) the consumer may not commence a civil action (other than a class action) under subsection (d) of this section unless he initially resorts to such procedure; and (n) a class of consumers may not proceed in a class action under subsection (d) of this section except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the named plaintiffs (upon notifying the defendant that they are named plaintiffs in a class action with respect to a warranty obligation) initially resort to such procedure.”
Under the explicit terms of the statute, if a company providing a warranty has set up an informal dispute-settlement procedure meeting Federal Trade Commission rules, then a consumer may not bring suit under the Act until first trying the informal route.
The FTC was given authority to develop the minimum requirements for informal dispute-settlement procedures, and it determined by rule that decisions made through the informal dispute-settlement process “shall not be legally binding on any person.” 16 C.F.R. 703.5(j). In comments, the FTC suggested that Congress had “made clear” that it wanted dispute-resolution procedures “to not be binding.” 40 Fed. Reg. 60168, 60210 (1975) (quoted in Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530, 1539 [M.D. Ala. 1997]).
The FTC’s interpretation of the Magnuson-Moss Warranty Act came at a time when courts and agencies placed greater weight on the clues to congressional intent that might be found in legislative history even when those clues found no support in the statutory language. See Eskridge, Frickey & Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, pp. 987-91 (4th ed. 2007). More importantly, the FTC’s interpretation came before the United States Supreme Court’s decision in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 96 L. Ed. 2d 185, 107 S. Ct. 2332 (1987), which set out the standards under which courts should determine whether Congress has intended to carve out an exception to the general federal policy favoring arbitration.
In Shearson/American Express, the Court first noted the strong federal policy favoring arbitration and the extensive reach of the Federal Arbitration Act. 482 U.S. at 225-26. Given a statute directly and strongly favoring arbitration, the Court held that a party opposing arbitration “must demonstrate that Congress intended to make an exception to the Arbitration Act for claims arising under [a statute], an intention discernible from the text, history, or purposes of the statute.” 482 U.S. at 227.
Under Shearson/American Express, then, we start with the text of the statute. As we’ve already noted, nothing in the text prohibits arbitration. The text does show that Congress intended to provide an avenue in warranty agreements for informal dispute-resolution procedures, like mediation or nonbinding arbitration, but the inclusion of a provision allowing nonbinding arbitration can’t be read as a sweeping exclusion of binding arbitration.
We turn next to legislative history. Two federal appellate courts have carefully reviewed the legislative history after Shearson/American Express, and neither of them found an intention to preclude, or even to address, binding arbitration. Walton v. Rose Mobile Homes LLC, 298 F.3d 470, 479 (5th Cir. 2002); Davis v. Southern Energy Homes, Inc., 305 F.3d 1268, 1271-72 (11th Cir. 2002). But see Koons Ford v. Lobach, 398 Md. 38, 51-63, 919 A.2d 722 (2007) (concluding that because binding arbitration wasn’t generally considered a substitute for litigation when the Magnuson-Moss Warranty Act passed, the legislative history should be read as an indication that Congress intended to protect consumers from forced resolution of claims through binding arbitration). We agree that, as the courts concluded in Walton and Davis, the legislative history at most shows a congressional intent that any informal dispute-resolution process provided by the warrantor should be nonbinding and that this doesn’t show an intent to preclude more formal, binding arbitration.
We must also consider whether there is any inherent conflict between arbitration and the underlying purposes of the MagnusonMoss Warranty Act. The statute provides that the Act is “to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products.” 15 U.S.C. § 2302(a) (2006). In general, the Act was intended to protect consumers. In light of the overall federal policy favoring arbitration of disputes, we do not see how neutral and fair arbitration procedures would necessarily conflict with that purpose. Indeed, fair arbitration proceedings may provide consumers with a more cost-effective and timely enforcement of warranty provisions. Congress could certainly choose to prohibit arbitration regarding these claims, but there is nothing inherently inconsistent between the purposes of the Magnuson-Moss Warranty Act and binding arbitration.
One test beyond that of Shearson/American Express should also be noted. Under Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), courts generally should defer to a federal agency’s interpretation of a statute unless Congress has specifically and unambiguously spoken on the subject or the agency’s interpretation is not based on a permissible interpretation of the statute. The federal appellate courts that have applied the Chevron test to the FTC’s interpretation of this statute have refused to give Chevron deference to it, either concluding that the FTC’s interpretation was unreasonable, Davis, 305 F.3d at 1279-80, or that the unambiguous intent of Congress to favor arbitration under the Federal Arbitration Act controls. Walton, 298 F.3d at 475, 478. Once again, we agree with the conclusions of Davis and Walton.
The Hemphills do not discuss the Shearson!American Express analysis. They simply argue that “all the federal decisions, and the majority of state courts ruling on the issue, have held that the Magnuson-Moss [Warranty] Act prohibits binding arbitration.” They are wrong about the federal decisions, as the Davis and Walton decisions demonstrate. They are correct, however, that there is caselaw in support of their overall conclusion. Several federal district courts and some state supreme courts have held that binding arbitration is prohibited under the statute. See, e.g., Browne v. Kline Tysons Imports, Inc., 190 F. Supp. 2d 827, 830-31 (E.D. Va. 2002); Koons Ford v. Lobach, 398 Md. 38, 51-64, 919 A.2d 722 (2007); Parkerson v. Smith, 817 So. 2d 529, 532-35 (Miss. 2002); Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 32-33, 644 S.E.2d 663, cert. denied 552 U.S. 990 (2007); Breniser v. Western Recreational Vehicles, Inc., 2008 WL 5234528, at *5-6 (D. Ore. 2008) (unpublished opinion). But Davis and Walton are the only federal appellate decisions we’ve found that have considered Shearson/American Express standards on this question, and both the Fifth Circuit and the Eleventh Circuit concluded that the Magnuson-Moss Warranty Act doesn’t preclude binding arbitration. Four state supreme courts have agreed with them. See Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala. 2000); Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 397-98, 808 N.E.2d 957 (2004); Abela v. General Motors Corp., 469 Mich. 603, 607, 677 N.W.2d 325, cert. denied 543 U.S. 870 (2004); In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 486-92 (Tex. 2001). In our view, the cases concluding that the Act doesn’t preclude binding arbitration are more persuasive.
We close our discussion of this issue with one final observation based on the facts of our case. The provision requiring the Hemp-hills to arbitrate their claims against Ford does not come out of a warranty provision issued by Ford. Nor does it come out of any informal dispute-resolution mechanism Ford has set up to deal with warranty claims. The arbitration provision in this case comes instead from a separate agreement in which the Hemphills agreed to arbitrate claims related to their financing agreement. In this context, the already weak argument that the Magnuson-Moss Warranty Act forbids provisions that require binding arbitration as part of an informal warranty-claims process has even less force. We conclude that the Magnuson-Moss Warranty Act does not prevent enforcement by Ford of the arbitration clause the Hemphills agreed to.
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Greene, J.:
Wade L. Fischer, M.D., appeals a medical malpractice judgment of $735,182 against him taken by the heirs and special administrator of the estate of Mary L. Lee (collectively referred to as the Lee plaintiffs). Dr. Fischer argues there were multiple instruction errors entitling him to reversal and new trial. We disagree and affirm the judgment.
Factual and Procedural Overview
Lee was a 79-year-old female diagnosed with severe mitral regurgitation in 2003. In order to alleviate the condition, she elected to undergo mitral valve replacement surgery to be performed by Fischer, a cardiothoracic surgeon. As a preliminary step in the surgeiy, the anesthesiologist for the surgery, Ernest McClellan, M.D., attempted to place a Swan-Ganz catheter into Lee’s internal jugular vein. He encountered problems in the insertion, but it was disputed the extent to which McClellan discussed these problems with Fischer. In any event, with at least some knowledge that the catheter was likely outside the vein, Fischer elected to proceed with the valve surgery rather than investigate and remedy the potential damaging affects of the misplaced catheter. Lee experienced major internal bleeding with related complications and died within days of the surgery.
The Lee plaintiffs brought suit for medical malpractice against both Fischer and McClellan, together with others, alleging that (1) they knew or should have known the catheter had perforated an innominate vein and caused a potential life-threatening hemorrhage, and (2) they were negligent in electing to continue with surgery without first diagnosing and repairing the perforation that ultimately caused Lee’s death. McClellan settled with the Lee plaintiffs before trial, and other defendants were dismissed. The case proceeded to trial against Fischer and resulted in a jury verdict assessing 100% fault to Fischer and 0% fault to McClellan with total damages of $735,182.
Dr. Fischer appeals, arguing multiple instruction errors.
Standards of Review
The standards for our review of jury instructions are well known.
“The trial court is required to properly instruct the jury on a party’s theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the juiy could not reasonably have been misled by them, the instructions will be approved on appeal. [Citation omitted.]” Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000).
A trial judge’s obligation to instruct the jury on a party’s theory of the case only arises if there is evidence to support that theory. Natalini v. Little, 278 Kan. 140, 146, 92 P.3d 567 (2004).
“Trial courts are not required to use PIK instructions, but it is strongly recommended because the instructions were developed in order to bring accuracy, clarity, and uniformity to jury instructions. Modifications or additions should only be made if the particular facts of a case require it. [Citation omitted.]” State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004).
Did the District Court Err in Failing to Instruct on Fischer’s Contention that McClellan Was at Fault in the Technique Used for Catheter Insertion?
Fischer initially challenges the district court’s refusal to instruct the jury on his contention that McClellan was at fault for his “[f] allure to meet the standard of care in his technique of insertion of the internal jugular vein catheterization of Mrs. Lee.” The Lee plaintiffs argue on appeal that any such claim of negligence was not supported by the evidence and was withdrawn by counsel for Fischer during opening statement and closing argument.
In refusing Fischer’s proposed contention instruction, the district court’s reasoning was reflected in these brief comments from the bench:
“In this particular case, as to the first contention, to me the evidence was that it was not negligence that caused the perforation. The manner of repair was the allegation and what the instruction was, in my opinion.”
When this instruction issue was raised again in Fischer’s motion for directed verdict, the district court further explained its reasoning as follows:
“What everybody argued when we started the case was it’s not a deviation from standard of care to pierce a vein while trying to insert the catheter. Campbell said if the anesthesiologist didn’t tell the surgeon what he knew about where the catheter was at, that would be a deviation. Dr. Fischer said he wasn’t told. The anesthesiologist says he was told. Myers says that it’s the anesthesiologist’s business to do that. And once — to withdraw it and to inform the surgeon, it’s the surgeon’s responsibility. The only thing that does is put in a fact issue whether or not Dr. Fischer was told about the problems that were encountered trying to insert the Swan-Ganz catheter. We’ll let the jury decide that issue as a matter of comparative fault.”
We turn first to the Lee plaintiffs’ argument that the claim of negligence embodied in the contention instruction was withdrawn, abandoned, or waived by counsel for Fischer in opening statement or closing argument. It is undisputed that the contention was included in the amended pretrial order, but the record reflects the following statements by Fischer’s counsel during opening statement:
“Now, you’re gonna find out and everyone agrees . . . where [the catheter] was placed was outside the vein and did poke through the wall of the vein. Dr. McClellan, I’m sure, is going to say that, I did that. We’re not gonna claim that that by itself was negligent. In fact, contrary to what has been suggested by plaintiff s counsel, Dr. Fischer’s not going to say, in my opinion Dr. McClellan was below the standard of care in doing that. Now, they are going to call an expert by the name of Dr. Campbell who’s going to say just that, who’s going to be critical of Dr. McClellan as well as Dr. Fischer. When the case is over, I’m gonna say to you you shouldn’t believe him on anything, not on his beliefs about Dr. Fischer, not on his beliefs about Dr. McClellan.” (Emphasis added.)
Fischer suggests that it would be unfair for us to examine closing argument for these purposes, because counsel was required to conform argument to the instructions. Although we might agree in principle, we note that closing argument not only abandoned this precise contention, but abandoned any contention that McClellan was negligent:
“Now, let me visit the rest of the time with you about the real issue in the case, which is not damages, it is fault. Question No. 1 — Because if you heard the evidence the way I heard it, I think this is going to resolve the entire dispute in the case you’ve heard. Question 1: Does the jury find either person to whom fault may be assigned at fault in the case? And you’re later told those people are Dr. McClellan and Dr. Fischer. And I’m gonna suggest the answer to that is no. . . .
“We don’t want you to believe any of Dr. — Dr. Campbell. We don’t want you to believe any of Dr. Campbell. . . . [W]hat you need to understand is the only evidence that Dr. McClellan’s at fault came from Dr. Campbell, and his opinions we’re gonna show aren’t credible on that any more than they are on Dr. Fischer’s actions so that you should not accept that, and you should not find anyone at fault, even Dr. McClellan. The answer to Question No. 1 should be ‘No.’ ”
Thus, the precise legal issue framed on appeal is whether counsel’s express withdrawal or abandonment of a theory of negligence against a party with whom negligence may be compared is binding on that party. We note at the outset that the mere failure to assert a theory of recovery does not provide a basis for judgment when the theory is supported by the evidence. See Fireman's Fund American Insurance Companies v. Central Securities, Inc., 208 Kan. 263, 491 P.2d 914 (1971). Moreover, where there is any ambiguity in the words spoken by counsel, a party is entitled to the presumption that his counsel did not intend to make an admission that would be fatal to his case. See Wilkerson v. Lawrence, 193 Kan. 92, 391 P.2d 997 (1964). Where, as here, counsel has expressly and unequivocally withdrawn during opening statement a claim of negligence against a party with whom negligence may be compared, we hold that the trial court may properly deny a contention instruction on that claim despite preservation of the claim in the pretrial order and some evidence to support it at trial. See Northington v. Northington, 158 Kan. 641, 149 P.2d 622 (1944); Moses v. Missouri Pac. Rld. Co., 138 Kan. 347, 26 P.2d 259 (1933).
We view this holding as consistent with the district court’s authority to eliminate claims or defenses sua sponte by summary judgment at pretrial. See Pamacott, A Practitioners Guide to Summary Judgment, Part 1, 67 J.K.B.A. 36, 38 (1998). We have affirmed such sua sponte partial or complete summary judgments where there has been a confession of judgment or a clear lack of dispute regarding remaining material facts. See, e.g., Phillips v. Carson, 240 Kan. 462, 466, 473, 731 P.2d 820 (1987); Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 789-90, 420 P.2d 1019 (1966). Just as this procedure expedites the handling of any remaining claims, the ehmination of jury instructions on withdrawn or abandoned claims expedites and simplifies the task at hand for the juiy.
Denying such a contention instruction under these circumstances is particularly warranted where it appears that counsel intentionally withdrew the claim for strategic reasons. Here, the principal if not sole evidence of McClellan’s negligence in the insertion of the catheter was expected to come from plaintiff s expert, who would also testify to the negligence of Fischer. It appears that counsel for Fischer chose to challenge the general credibility of that expert; thus — for the sake of consistency — it also required withdrawal of any contention of negligence against McClellan. In fact, the strategic dilemma was fully disclosed to the jury during the closing argument of Fischer’s counsel:
“Does the jury find either person to whom fault may be assigned at fault in the case? And you’re later told those people are Dr. McCÍellan and Dr. Fischer. And I’m gonna suggest the answer to drat is no. The only testimony by anybody that Dr. McClellan was at fault was Dr. Campbell, and plaintiffs in the situation of saying don’t believe part of Dr. Campbell but believe the rest of Dr. Campbell. Don’t believe Dr. Campbell when he says Dr. McClellan was at fault, but do believe him when he says Dr. Fischer’s at fault, and believe half of Dr. McClellan. We don’t want you to believe any of Dr. Campbell. We don’t want you to believe any of Dr. Campbell, not just half of him; and so even though under — for reasons you don’t need to understand that don’t make any difference as to who’s claiming that he’s at fault, what you do need to understand is the only evidence that Dr. McClellan’s fault came from Dr. Campbell, and his opinions we’re gonna show aren’t credible on that any more than they are on Dr. Fischer’s actions so that you should not accept that, and you should not find anyone at fault, even Dr. McClellan.”
Where a party’s strategic choices at trial have adverse consequences, we have refused to grant relief on appeal from those same choices. See State v. Gray, 235 Kan. 632, 635-36, 681 P.2d 669 (1984).
In addition to the express withdrawal of the contention, our review of the record reflects that the contention was not fully supported by the evidence. The parties disagree whether the contention was supported by testimony from plaintiff s expert, Dr. Robert Campbell. We quote all relevant portions of that testimony below:
“Q. Is a doctor automatically considered negligent if he perforates a vessel while placing a Swan-Ganz?
“A. No.
“Q. Is that a known complication?
"A. Yes.
“Q. Could you tell the jury what you gave as far as your opinion with regard to Dr. McClellan?
“A. What I stated in my report was that when Mr. Pamatmat, who was the nurse anesthetist, and Dr. McClellan were putting these — this—this catheter in, if they indeed failed to notify Dr. Fischer of these difficulties, then they deviated from the standard of care. . . .
“[Tjhere was a great question as to whether a plan had actually been developed between Dr. Fischer and Dr. McClellan, and what I said was that if no plan had ever been developed because Dr. McClellan had indeed not gone to Dr. Fischer to inform him, then that would be a deviation of the standard of care. Now, since that time I think I’ve pretty well, you know, formed my own decision that there was indeed a plan in place, but at the time that I wrote this report I didn’t have some of the information that I do now. . . .
“Q. Weren’t you critical of his technique in causing the injury?
“A. Oh, yeah, that’s right. That’s right. . . . What I wrote was, despite a feared extravascular placement of the catheter, no attempt at locating the catheter’s position with a chest x-ray or fluoroscopy was made by the anesthesia team. In a normal, straightforward jugular cannulation neither ultrasound guidance nor x-ray confirmation of the catheter position are necessary to meet the standard of care. However, when health practitioners encounter great difficulty in catheter placement such as [here], then additional measures are necessary to meet the standard of care, thus Mr. Pamatmat and Dr. McClellan failed to meet the standard of care in their technique of insertion. Now, what we did — what we discussed at deposition, just so they know everything, is that indeed those additional measure though can include the plan that we just talked about that we will look for it at operation. . . .
“Q. You are still critical of Dr. McClellan in this case though, right? Aren’tyou?
“A. Yes, I haven’t changed my opinion.
“Q. Feel like he fell below standard of care?
“A. Yeah, in the areas that I — that I said, except that I — I don’t believe that he deviated from the standard of care in not developing a plan because I believe that there was a plan in place.
“Q. Which leaves other deviations that are still out there—
“A. Right. Well, that would just be that if they — -if they never told him about the problems they were having putting this catheter in, and he — you know, if he’s out there for an hour and a half and doesn’t know what’s going on with his patient, that’s a deviation of the standard of care. But it doesn’t have anything to do with what happened.
“Q. Well, also you mentioned something about die technique, studies that were not done.
“A. Except that a plan is a part of those other measures that are available.”
Dr. Fischer testified that he was not faulting McClellan for failure to tell him something; in fact, Fischer stated, “I don’t believe I fault Dr. McClellan for anything.” Although Fischer urges us to consider the testimony of defense expert, Dr. Jeff L. Myers, we note that Myers was clear to disclaim any opinion on deviations by the anesthesia team due to lack of requisite expertise.
Does this testimony support a contention instruction that McClellan deviated from the standard of care in the “technique of insertion of the internal jugular vein catheterization?” We think not. Despite some degree of ambiguity in the witness’ testimony, we believe the testimony supports only a deviation from the standard of care if the anesthesia team failed to notify Fischer of the degree of the problem encountered during insertion or failed to devise a plan to locate and remedy the problems of perforation. This evidence supported the contention instruction given by the district court, which stated in material part:
“[Fischer] claims that plaintiff s injuries and damages were the result of the negligence of Dr. Ernest L. McClellan, M.D., in the following respect:
1. Failure to notify Dr. Fischer of the difficulties in catheter insertion and to confer with him about alternate insertion techniques.”
Although the testimony may have supported a broader contention, there was — in the end — no support for suggesting that McClellan deviated from the standard of care in the insertion itself. In fact, the only expert testifying on this issue never departed from his testimony that it is not considered negligence to perforate a vessel during the insertion of a Swan-Ganz catheter. Although Fischer suggests on appeal that common sense and other testimony supports the fact that the perforation itself was a contributing cause of Lee’s death, this fails to support the desired contention instruction where it was never established that insertion technique deviated from the standard of care. We also note that to the extent Fischer now argues “common sense” supported the contention, the district court gave a “common knowledge” exception instruction that was never employed by counsel for this purpose during trial. Fischer also argues on appeal that the “common knowledge” exception was inapplicable, however, so his arguments on appeal are wholly inconsistent on this point.
The record fails to contain any clear evidence that McClellan deviated from the standard of care in the insertion of the catheter or in causing the perforation. The entire focus of the trial was on fault and consequences for decisions made after insertion and apparent vascular perforation. In this regard, we agree with the district court’s conclusion to deny inclusion of a contention instruction claiming that McClellan was negligent in “technique of insertion.” This contention was both withdrawn by counsel and unsupported by the evidence at trial. Fischer’s first claim of error is rejected.
Did the District Court Err in Refusing to Instruct the Jury on the “Best Judgment” Rule Contained in PIK Civil 3d 123.11?
Fischer next contends the district court erred in refusing a requested jury instruction based on PIK Civil 3d 123.11. The requested instruction stated:
“Where, under the usual practice of the profession of the defendant, Wade L. Fischer, M.D., different courses of treatment and diagnostic testing are available which might reasonably be used, the physician has a right to use his best judgment in the selection of the choice of treatment and testing.
“However, the selection must be consistent with the skill and care which other physicians practicing in the same field in the same or similar community would use in similar circumstances.”
The Lee plaintiffs contend this instruction “was not factually applicable to the issues and evidence in this case.” They argue that the jury found the actual course of treatment to be unreasonable, “so the requested instruction would not have applied in any event.”
The district court concluded the instruction “was not applicable.”
The PIK Committee’s Notes on Use of this instruction provide as follows:
“Where there is a dispute as to which of two or more courses is to be pursued in administering treatment, this instruction should be used. PIK 3d 123.01 and/or 123.12 must also be given, depending on the status of the health care provider as a specialist or nonspecialist.”
Our appellate courts have approved the use of this instruction, but we have never concluded that the failure to include the instruction is reversible-error. See, e.g., Hibbert v. Ransdell, 29 Kan. App. 2d 328, 334, 26 P.3d 721, rev. denied 272 Kan. 1418 (2001). As is apparent from the second paragraph of the requested instruction, the selection or choice of treatment must be consistent with the applicable standard of care; we view the instruction as having little if any determinative impact on a jury’s view of the evidence because the ultimate determination remains a question of deviation from the standard of care. Our court has recently examined the history of the instruction and criticized the principal authority from which it is derived. See LaShure v. Felts, 40 Kan. App. 2d 1001, 197 P.3d 885 (2008). We must first examine the evidence to determine general applicability.
Fischer testified at trial that he did not have a choice under these circumstances; he believed that proceeding to locate and repair any damage from the misplaced catheter before repairing the valve would have imperiled his patient:
“I chose the path that I felt gave Mary the best chance to survive, and I felt that if I tried to do a trapdoor incision and repair that injury at that time that she would not have survived that, so I felt the safest thing to do that would give Mary the best chance of getting out of the operating room was to fix the valve first.
“Q. So there really wasn’t anything that kept you from doing that trapdoor sternotomy right in the beginning when you knew there was a risk of a perforation, was there?
“A. Yes, there was. There was my concern and my opinion that in attempting to do that at the outset would have resulted in her death for the reasons that I’ve previously described. You couldn’t perform the trapdoor sternotomy without having to go on pump under the circumstances that May Lee found herself in and that I found her in, and so my only option, in my opinion, was to fix the heart first, and then after the heart was fixed, then be able to repair the injury that she had sustained.”
The expert called by the defense, Dr. Jeff L. Myers, initially testified on direct examination that the procedures could be done in either order:
“Q. Now, with regard to the order, how you would proceed in a situation where you did not know for certain that a catheter had gone through the vein, but you were being cautious and kind of assuming it did, would the standard of care require that you do the vein repair first or look for the vein injury and see if it needs repair and do so, or would the standard of care allow you to do — or require you to do the mitral valve first?
“A. Well, again, it’s difficult to define the standard of care for this injury and this scenario because it'occurs so rarely .... So your question is should it have been done in the — in the reverse order?
“Q. Right. They’re claiming it should have been done in the reverse order.
“A. No. It doesn’t matter. It had to be repaired. It doesn’t matter if you repair it at the beginning or at the end, but it has to be repaired before you leave the operating room. That’s the only—
“Q. Would standard of care allow the doctor die flexibility to, in his judgment, do it at the beginning or do it at the end?
“A. Absolutely. In the absence — In the absence of obvious bleeding, there is no requirement to do it at the beginning of the case.
“Q. Recognizing that then to be your opinion, would it have made any difference in this case if Dr. Fischer would have fixed the vein before fixing the heart?
“A. No.”
Myers equivocated substantially, however, under cross-examination:
“Q. There is a significant difference in whether Dr. Fischer was informed that the catheter was not in the correct position or if it specifically was thought to be ‘extravascular.’ That about right?
“A. Right.
“Q. You stated that?
“A. Correct.
“Q. Okay. And as you sit here today that’s still true, isn’t it?
“A. Yeah, I think that’s true. If the — If the — Because it puts you down two different pathways. If the catheter’s in the vascular system you’re potentially— you’re fine. You have absolutely no obligation to go and search for it. If it’s outside the vascular system, you’re now in a pathway that gives significant bleeding. You need to go look for that catheter as the course of the bleeding — the source of the bleeding.” (Emphasis added.)
In the last analysis, if the jury believed that Fischer was told by McClellan that the catheter placement was “extravascular” or there was other reason to believe that severe bleeding was occurring due to that placement (and there was evidence of hypovolemia or low blood volume, together with low blood pressure and elevating pulse rate, before Lee was placed on pump), the Myers’ testimony meant there was no choice: the catheter had to be located and any perforation repaired before the valve surgery. In contrast, Fischer also contended there was no real choice: he needed to repair the valve before addressing the misplaced catheter.
According to Myers, the only scenario that presented a true choice of treatment was if Fischer was not informed of “extravascular” catheter placement and/or had no reason to believe there was active bleeding. Thus, the jury was required to do some fact finding on the true circumstances at the moment of decision: (1) whether Fischer was informed the catheter misplacement was “ex-travascular”; (2) whether Fischer had reason to believe there was active bleeding before he proceeded with the valve surgery. Depending on how the juiy resolved these factual issues, there may or may not have been a true “best judgment” situation to make PIK Civil 3d 123.11 applicable.
We conclude that giving the instruction here could have been as confusing as it could have been helpful. If the “best judgment” instruction had been given and a defense verdict rendered, the Lee plaintiffs would undoubtedly have claimed error. Considering the entirety of the instructions given, the jury was fairly instructed on the law governing the case. It is clear to us that the jury did not accept Fischer s suggestion that he “had no choice” and it also rejected Myers suggestion that Fischer could have proceeded in either order because they found that Fischer breached the applicable standard of care. The omission of the “best judgment” instruction under these circumstances was not error.
Did the District Court Err in the Inclusion of Optional Language Regarding the “Common Knowledge” Exception to the Requirement of Expert Testimony?
Finally, Fischer argues that the district court erred in having included the optional language contained in PIK Civil 3d 123.10, regarding the “common knowledge” exception to the requirement of expert testimony to establish standard of care. At trial, Fischer objected to the inclusion of optional language on finding a deviation from the standard of care through expert testimony. The objection was:
“Whether drey re expert issue[s] or a common knowledge issue is not something you want to say to the jury you decide if an expert’s required or — and if you decide it isn’t, then you can decide on your own. These are clearly expert issues and not common knowledge issues, so that the last paragraph you say language, ‘If what was done or not done in the treatment of a patient is within the common, everyday knowledge of persons generally, such facts may be established,from the general circumstances as shown by the evidence, which evidence may include testimony by persons other than experts.’ This is not a case where it falls within the common knowledge of everyday knowledge and people without going to medical school, and by doing it this way you’re saying if you think failing to perform a sternotomy with a trapdoor extension prior to withdrawal of the catheter is something that common knowledge says you just don’t do, then you’re entitled to malee your own decision and not lay it on an expert.”
Noiwithstanding this objection, the district court concluded the standard of care instruction with the optional paragraph, which states:
“The above rule is limited to those matters clearly within the field of medical science. If what was done or not done in the treatment of a patient is within the common everyday knowledge of persons genérally, such facts may be established from the general circumstances as shown by . . . persons other than experts.”
The PIK Notes on Use for PIK Civil 3d 123.10 provide that this optional language “may be included when applicable to the evidence of a particular case.” The Comment to PIK Civil 3d 123.10 provides:
“If, in a given case, the bad results are so pronounced as to be apparent to anyone, and if what was done or not done in the treatment of a patient is so obvious and within the common everyday knowledge of persons generally, such facts may be testified to by persons other than physicians.”
The most common types of cases where lay testimony has been held sufficient to establish a prima facie case against a physician are cases in which the health care provider has left some foreign object in a patient’s body. See, e.g., Capps v. Valk, 189 Kan. 287, 369 P.2d 238 (1962).
This was clearly not a case where the optional language should have been given. The evidence was almost exclusively provided by specialists in cardiothoracic surgery, all of whom expressed opinions on the applicable standards of care under the circumstances. The appropriate course of action here was not “so obvious” as to be within the common everyday knowledge of persons generally, and the district court erred in including the optional language from PIK Civil 3d 123.10.
The more difficult question is whether the error requires that we reverse and remand for a new trial. Again, this question requires that we consider the entire set of instructions and determine whether they fairly instruct the jury on the law governing the case. We note that the subject instruction juxtaposed, just above the disputed paragraph, the following language from PIK Civil 3d 123.10:
"In determining whether a surgeon used the learning, skill and conduct required, you are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge. On questions of medical or scientific nature concerning the standard of care of a physician only those qualified as experts are permitted to testify. The standard of care is established by members of the same profession in the same or similar communities under like circumstances. It follows, therefore, that the only way you may properly find that standard is through evidence presented by these types of expert witnesses.”
In assessing the question of prejudice, we note that the errant language was never referenced in closing argument. Counsel for the defense clearly emphasized the need to rely on expert testimony for the standard of care:
“ ‘[Y]ou are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge.’ None of us come from backgrounds that allow us to say, Oh, I think he should have done that mitral valve first. We don’t. We don’t have — nobody would call us up and say, Hey, what do you think we ought to do here? We don’t know. We’re not trained. It’s a doctor’s call. ‘On questions of medical or scientific nature,’ which is what these decisions that were made were, your — Let’s see — the standard of care of a physician — ‘only those qualified as experts are permitted to testify.’ Okay. So is he negligent? It’s a scientific issue. We can’t decide. We’ve got to look to the experts.”
We recognize that counsel for the Lee plaintiffs asked the jury to “make the decision,” but there was no emphasis on the errant language in the subject instruction, nor was there any suggestion that the expert’s testimony should be ignored. In fact, counsel emphasized the importance of the expert’s testimony by stating in rebuttal closing that “these experts are important. They’ve given you the setting, but they’re not the show here. They’re just part of the database for you. They’re part of the facts for you, and you’re the ones that are now equipped to make the decision.” We do not view these statements as an invitation to ignore the expert testimony and substitute common knowledge on the standard of care.
Considering the instructions as a whole, they were substantially correct and fairly instructed the jury on the law governing this case. Clearly, the district court erred in including the optional common knowledge language from PIK Civil 3d 123.10 where the exclusive evidence on standard of care had been presented by experts, but the error was harmless under these circumstances.
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Davis, J.:
Petitioner, Debra K. Hamstead, appeals the district court’s decision upholding the Department of Revenue’s order suspending her driver’s license for 120 days for refusing to submit to a chemical test for alcohol content of blood. K.S.A. 8-1001.
At approximately 2:30 a.m. on November 11, 1984, petitioner was driving towards Haysville, Kansas. As she entered the city limits, Officer Phil Gloshen of the Sedgwick County Sheriff s Department approached from the opposite direction. He flashed his headlights, signaling petitioner to dim her lights. Petitioner did not respond because, according to her testimony, she did not have her bright lights on “and for some reason, my headlights have a tendency to shoot up, even though the high beams aren’t on.” Officer Gloshen again flashed his headlights and passed.
Officer Gloshen stopped petitioner because she failed to dim her headlights. He smelled an odor of alcoholic beverage and asked if she had been drinking. Petitioner told him she had drunk two beers.
After conducting field sobriety tests, Officer Gloshen arrested petitioner for driving under the influence, read her Miranda warnings, and asked if she would like to talk. When she said “No,” he read the warnings suggested in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), and requested that she take a breathalyzer test. Petitioner did not exhibit any confusion or ask for clarification. Officer Gloshen described her response as follows:
“I sat there after I had read both the Miranda warning and the Standish warning, and looked at Debbie, and Debra did not make any statement at all. I then sat there for a couple of minutes and I asked again if Debra would take the breathalyzer test. Debra again refused to talk to me. I sat there for another couple of minutes, then I turned around while I was filling out the Miranda warning paper and everything, which is right here. I again asked her, she stated ‘No,’ there was no statement whatsoever that she would take a test or not. I made the statement to Officer Kinney in the back, ‘We’ll have to accept that as a refusal and transport her in.’ ”
Officer Gloshen stated that he gave petitioner approximately a minute to respond to his first request to take the test and approximately a half a minute to answer his second request. Petitioner, however, claimed that Officer Gloshen did not read the Standish warnings and that only five seconds passed before he turned to Officer Kinney and said, “Take that as a refusal.”
The trial court found that Officer Gloshen had reasonable grounds to believe that petitioner had been driving under the influence and that he read her the Standish warnings. The court further found that by her silence petitioner refused to submit to the breathalyzer test and that her refusal was unreasonable.
Petitioner first claims that Officer Gloshen engaged in an unlawful act by flashing his headlights at her oncoming vehicle and that he stopped her because she refused to do the same. Petitioner argues that to reward the officer’s unlawful conduct by concluding that he had reasonable cause to stop the defendant would be “bad public policy.”
Petitioner did not raise this argument below, and the court need not consider it on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984). We, however, pause to emphasize that the argument is without merit. The officer’s conduct on the evening in question was both lawful and reasonable.
Second, although petitioner concedes that in Kansas a driver can refuse to take a chemical test simply by remaining silent, she claims that Officer Gloshen did not give her a “realistic chance” to respond and that her failure to agree to take the test was reasonable. Evidence on the amount of time given petitioner to respond was controverted. The trial court chose to credit Officer Gloshen’s version of the events. We will not weigh evidence or pass upon the credibility of witnesses on appeal. Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 5, 689 P.2d 808 (1984).
Although appellate courts in this state have not addressed directly the issue of whether a driver can refuse to take a chemical test simply by remaining silent, in Standish v. Department of Revenue, 235 Kan. 900, the court held that “[a] conditional response such as, T want to talk to my attorney (or parent or relative or friend or some other third person) first,’ is not a consent to take the test. It is a refusal.” 235 Kan. at 903.
Silence has been held to constitute a refusal to submit to testing in other jurisdictions. See Lampman v. Department of Motor Vehicles, 28 Cal. App. 3d 922, 105 Cal. Rptr. 101 (1972); Gabrick v. Commissioner of Public Safety, 393 N.W.2d 23 (Minn. App. 1986); Anderson v. Commissioner of Public Safety, 379 N.W.2d 678 (Minn. App. 1986); Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo. 1975); Beck v. Cox, 597 P.2d 1335 (Utah 1979).
We hold that defendant’s silence in this case was an express refusal to submit to the test. We will not disturb the trial court’s finding when supported by substantial competent evidence.
Third, petitioner contends that Officer Gloshen’s failure to allege specific facts in the chemical test report to support his conclusion that he had reasonable grounds to arrest her for driving under the influence deprived the Department of Revenue and the trial court of jurisdiction. Petitioner relies upon Carson v. Division of Vehicles, 237 Kan. 166, 699 P.2d 447 (1985). In Carson, however, the court held that a chemical test report identical to that used in this case was sufficient to commence administrative proceedings, even though as a matter of due process it could not form the sole basis for suspension of a driver’s license. 237 Kan. at 173. In this case, unlike Carson, the officer appeared and testified both in the administrative hearing and before the district court. Petitioner’s claim of error is without merit.
Finally, petitioner claims that allegedly false statements made by Officer Gloshen in the chemical test refusal report deprived the Department of Revenue and the trial court of jurisdiction. Petitioner’s attack is threefold. First, she contends that Officer Gloshen falsely swore in the affidavit that she “expressly refused” a breathalyzer test when in fact she remained silent. In making this argument, she wrongly assumes that silence is not a form of expression. Officer Gloshen was not wrong when he concluded that petitioner “expressly refused” to take the test.
Second, petitioner argues that Officer Gloshen’s conclusion that she made a knowing, intelligent, free, and voluntary response to his request that she take a test is false because he gave her only seconds to respond. As discussed above, the trial court credited Officer Gloshen’s testimony that he gave petitioner several opportunities to reply. We accept the trial court’s finding.
Third, petitioner argues that the refusal report is void because Officer Gloshen could not recall swearing to it. A report verified on oath is a jurisdictional prerequisite to license suspension. See K.S.A. 8-1001(c). Wilcox v. Billings, 200 Kan. 654, 659, 438 P.2d 108 (1968); see also Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 671 P.2d 547 (1983); Dewey v. Kansas Dept. of Revenue, 11 Kan. App. 2d 72, 713 P.2d 490 (1986).
The record contains ample evidence and casts little doubt on the regularity and authenticity of the verification subscribed to in the report. Although on cross-examination Officer Gloshen could not remember swearing to the refusal report, on redirect he stated that he verified the report on oath. He testified that at the time the report was made it was his practice to take refusal reports before a notary and swear an oath. Officer Gloshen’s testimony was sufficient to establish that the report had been verified on oath.
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Woleslagel, J.:
Rhoda Vogel, appellee, a retired schoolteacher, rented living quarters from William G. Haynes, appellant, a practicing attorney. The lease was month-to-month but contained a provision that Vogel would keep the premises for one year. Before the end of one year, Vogel gave timely notice of termination and asked for the return of a security deposit she had advanced. Haynes refused the request without any written notice of damages he sustained by reason of Vogel’s failure to comply with the one-year provision in the rental agreement.
Haynes lost in small claims court and lost in his appeal to district court. In the district court decision, Judge Macnish affirmed Vogel’s judgment because of Haynes’ failure to comply with the notice provision of K.S.A. 58-2550(b). The court also made findings of fact which are not disputed:
“1. On January 6, 1983, the Plaintiff entered into a written rental agreement with the Defendant which provided:
“ T. The Lessor hereby rents to Lessee and Lessee rents from Lessor, the premises known as Apartment No. 203. Lessor reserves and Lessee covenants and agrees to pay Lessor as rent, the sum of $195.00 per month on the first day of each month, unless written notice of adjustment is given thirty (30) days in advance.
“ ‘Lessee is taking possession of the premises on the 15 day of Jan., 1983. Lessee shall pay on the execution of the Agreement the sum of $_as rent from the date of possession to the 1 day of Feb., 1983. On the first day of Feb., 1983, Lessee shall pay $195.00 as rent from the 1 day of Feb., 1983 to the 1 day of March, 1983. Thereafter, rent in the amount of $195.00 shall be due on the first day of each month.
“ ‘2. Lessor may terminate this Agreement on the last day of any month by giving thirty (30) days prior notice in writing. Lessee may terminate this Agreement on tire last day of any month by giving thirty (30) days prior written notice upon the following conditions.
“ ‘3. The Lessee agrees to deposit with Lessor the sum of $110.00, the receipt of which is hereby acknowledged by cancelled check or receipt, as security to the Lessor for the performance of this Agreement, the return of any keys and equipment used, to Lessee, and for any damage to the premises, furnishings or equipment therein, except ordinary wear and use. The deposit shall be returned if in the Lessor’s (Owner’s) opinion all of the Lessee’s (Renter’s) obligations in this Agreement have been fulfilled on the termination of this Agreement and the Lessee (Renter) has remained for a minimum of one (1) year from the date that Lessee (Renter) paid the first full month rent under this Agreement. It is understood that the aforesaid deposit is not a prepayment of rent and Lessor (Owner) shall not be obligated (although it may do so at its option) to apply said deposit to any unpaid rent or any portion thereof.’
“2. On or about June 26, 1983, Plaintiff gave the Defendant notice that she intended to vacate apartment 203 in the Curtis Building on or before July 31, 1983.
“3. Plaintiff advised the Defendant that she had forwarded a money order comprising rent for the month of July to the property managers.
“4. Upon receipt of the Plaintiff s written notice terminating the tenancy, the Defendant did not provide the Plaintiff with a written itemization notifying her of damages suffered by any noncompliance with K.S.A. 58-2555 or the rental agreement, as required by K.S.A. 58-2550(b).
“5. The Plaintiff gave the Defendant a written request for the return of her security deposit.
“6. Plaintiff resided in the apartment for six months after signing the rental agreement.
“7. The Plaintiff s failure to remain in the apartment for a period of one year is the only reason the Defendant did not return the security deposit to the Plaintiff.
“8. The Plaintiff filed a Petition in November, 1983, in the Small Claims Court, well after thirty days from the date the Plaintiff terminated the tenancy, redelivered possession to the Defendant and requested the return of the security deposit.
“9. Defendant was served on December 5,1983, notifying him of the pending action, docketed for December 28, 1983.
“10. On December 28, Defendant failed to appear and a default judgment was awarded to the Plaintiff.
“11. The Defendant subsequently filed a motion to set aside the default judgment.
“12. A trial setting was had on January 18, 1984, at which the defendant again failed to appear.
“13. The Court entered a default judgment forthe Plaintiff. The Court set the matter for a hearing on April 25,1984, to permit the Defendant to show what good cause he had for not appearing on January 18.
“14. An evidentiary hearing was held on May 2, 1984.
“15. The Defendant failed to appear. Default judgment was entered against him in tire amount of $110.00, the amount of the security deposit, plus costs.
“16. The Defendant appealed the judgment of the Small Claims Court to this Court.
“[17.] Prior to receiving notice of Defendant’s appeal, the Plaintiff garnished the Defendant’s partnership account and the Clerk of Limited Actions paid out to the Plaintiff her lower judgment in the amount of $110.00.”
Haynes asks us to make a number of rulings we decline to make. He wants us to find his security deposit provision in the lease was a “liquidated damage” provision and not prohibited by the Act. In the lease it is termed a “deposit ... as security to the Lessor for the performance of this Agreement.” (Emphasis added.) We find no language common to liquidated damage clauses. Also, a lump sum penalty, common to liquidated damages, is proscribed by K.S.A. 58-2550(b) which provides only for actual damages sustained.
Haynes also asks us to make a finding that his lease form is not unconscionable, a finding we determine is not necessary for our decision.
Turning to the first issue in this case, and the only issue when this appeal was taken, we note that K.S.A. 58-2550(a) authorizes security deposits and sets some limitations upon their amount. K.S.A. 58-2550(c) states that if a landlord fails to comply with K.S.A. 58-2550(b), “the tenant may recover that portion of the security deposit due together with damages in an amount equal to one and one-half (1 V2) the amount wrongfully withheld.”
This appeal is determined by that part of K.S.A. 58-2550(b) which states:
“Upon termination of the tenancy, any security deposit held by the landlord may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant’s noncompliance with K.S.A. 58-2555 and the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant." (Emphasis added.)
Since it is undisputed that the notice was not given, we find it hard to understand how the correctness of the trial judge’s decision is subject to question.
The rental agreement stated that occupancy for one year was a condition to the return of Vogel’s deposit. Vogel failed to fulfill that provision of the agreement. The statute required Haynes to give written notice to Vogel itemizing damages resulting from her “noncompliance” with “the rental agreement.”
If, however, something more than the plain language of the statute is needed, that is supplied by Geiger v. Wallace, 233 Kan. 656, 660, 664 P.2d 846 (1983), which approved a trial court judgment similar to this judgment, and on the same basis.
Haynes next argues that attorney fees are not allowable for this appeal. He claims they are statutorily provided only for the district court appeal. We agree. We do not agree that necessarily decides the question. Haynes supports his position by stating that the allowance of fees would be proper only if provided by statute. He then points out that, under K.S.A. 61-2709(b), the statute governing this appeal is Article 21 of Chapter 60 of Kansas Statutes Annotated. We agree that chapter 60, rather than chapter 61, governs the methodology of the appeal. We see no reason it should govern more than that.
Haynes then proposes that attorney fees would be allowable under Supreme Court Rule No. 7.07(b) (235 Kan. lxxv) only if the appeal has been taken frivolously. We are reluctant to find frivolity here. The plain language of K.S.A. 58-2550(b) and the easy to understand language of Geiger make it hard for us to understand how it could be thought this appeal would succeed. Haynes does, however, claim with apparent sincerity that he wanted rulings on some matters that we find unnecessary for this decision.
We believe the question of allowance of fees on this appeal should be decided based upon the similarity of purpose underlying our Kansas Small Claims Procedure Act as compared to the legislative purpose in K.S.A. 60-2006 which relates to limited damages in automobile collision cases: the provision of a forum functioning in such a way that a small claimant is not burdened financially or otherwise by delay or legal maneuvering. See Stafford v. Karmann, 2 Kan. App. 2d 248, 252, 577 P.2d 836 (1978), wherein it states, “While K.S.A. 60-2006 does not ex pressly authorize the award of fees for an appeal, inherent in its meaning is the concept that attorney’s fees should be awarded for all services rendered for the benefit of the one who proceeds under the provisions of the section.” Syllabus paragraph six of the same case states that “the award of such fees effectuates the purpose of the statute and is inherently allowed by its provisions.” 2 Kan. App. 2d 248. See also Squires v. City of Salina, 9 Kan. App. 2d 199, 202, 675 P.2d 926 (1984), in which the court speaks of remedying “the primary evil” of delaying “payment of just claims in the hope that the injured party would grow weary of, or short of money to finance, lawsuits for the recovery of small to modest damages.”
Vogel’s request and itemization for allowance of attorney fees has been reviewed and found reasonable in amount. The decision of the trial judge is affirmed and attorney fees for this appeal are allowed “to effectuate the purpose” of the Kansas Small Claims Procedure Act. | [
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Parks, J.:
Petitioner Gary Lee Bryant is an inmate at the Kansas State Penitentiary. He brought this action against corrections officials protesting a number of conditions of his confinement but also claiming money damages for the taking of his property without due process. The trial court ruled in favor of the prison officials on all but the damages claim. Judgment was granted to the petitioner for $130. Originally, the petitioner appealed the adverse rulings of the trial court and the respondent cross-appealed the money judgment. Petitioner voluntarily dismissed his appeal but the respondent maintained its cross-appeal. Thus, the sole issue before this court is the propriety of the trial court’s judgment awarding money damages to the petitioner.
The conduct for which petitioner sought damages began in June 1983, when a prison guard found a portable stereo in petitioner’s cell with the serial numbers destroyed. The guard called the central property room at the penitentiary, which maintains records on all property registered to inmates, and discovered that the stereo was not registered to petitioner. The guard then questioned another inmate, Swaggerty, who claimed that the stereo was his and had been stolen. The registration records of the central property room indicated that a stereo matching the description of the one found in petitioner’s cell was registered to Swaggerty. The stereo was seized as evidence and disciplinary charges were filed against petitioner for violation of K.A.R. 44-12-201, registration of property; K.A.R. 44-12-203, theft; and K.A.R. 44-12-303, lying. A disciplinary hearing was held on the charges and petitioner was found guilty of the theft and lying charges. The alternative charge of violating the requirement that all property be registered was dismissed. As a result of the conviction, the disciplinary board ordered the stereo returned to inmate Swaggerty and that Swaggerty send it out of the prison.
Subsequently, petitioner filed a petition for writ of habeas corpus to challenge the disciplinary convictions. The Leavenworth County District Court found merit in petitioner’s complaint that he had been improperly denied counsel and the right to call witnesses and a de novo hearing on the disciplinary charges was ordered. A new administrative hearing was then held on the theft and lying charges and both were dismissed as a result. Throughout the disciplinary proceedings and in his sworn testimony in the action giving rise to this appeal, petitioner has maintained that he owned the stereo. He claimed that he did not steal the device but acquired it through a trade with Swaggerty. Such trades between inmates are prohibited when undertaken without permission, K.A.R. 44-12-205, but no disciplinary charge was ever filed alleging this violation. In addition, the registration violation was not refiled.
The case now on appeal was characterized as a petition for writ of habeas corpus and a number of complaints were raised about the conditions of petitioner’s confinement. However, the petitioner also alleged that the prison officials acted in violation of his right to due process in taking and disposing of the stereo which he valued at $130. Petitioner sought damages for this alleged violation of due process. Although the district court found no merit to petitioner’s various claims for habeas corpus relief, it concluded that he was entitled to damages for the seizure and disposal of the stereo unit. The respondent appeals from this judgment for damages contending that petitioner was not entitled to money damages.
Respondent correctly points out that money damages may not be awarded in a habeas corpus proceeding. Foster v. Maynard, 222 Kan. 506, 513, 565 P.2d 285 (1977); Highman v. Marquez, 5 Kan. App. 2d 158, 160, 613 P.2d 394 (1980). However, petitioner contends that the court did not award the damages as relief on the habeas corpus petition but, instead, construed the claim for damages as an invocation of the civil rights law found in 42 U.S.C. § 1983 (1982). Petitioner argues that while the terms of his imprisonment were only addressable by means of the habeas corpus action pursuant to K.S.A. 60-1501, there is nothing to prevent the court from giving his petition a liberal construction by interpreting the alleged denial of due process as a civil rights claim.
Assuming for the sake of argument that plaintiff stated a claim for relief under 42 U.S.C. § 1983, the proper inquiry is (1) did petitioner have a constitutionally protected property interest which was injured by the conduct of the prison officials and, (2) if so, was this protected interest impaired without the benefit of due process?
Because petitioner is a prison inmate his property interests may be specially defined as a consequence of his incarceration. Prison officials are granted wide discretion in managing the internal operations of the prison. Foster, 222 Kan. at 509. Reasonable restrictions may be imposed on the type and amount of personal property inmates are allowed to possess in prison. When inmates are afforded the opportunity, whether by “right” or “privilege,” to possess personal property, they enjoy a protected interest in that property that cannot be infringed without due process. McCrae v. Hankins, 720 F.2d 863, 869 (5th Cir. 1983). Nevertheless, if there are constitutionally permissible limitations on the inmates’ property rights which would invalidate the existence of a protectable interest in certain property, the deprivation of that property does not violate due process. Sell v. Parratt, 548 F.2d 753, 758 (8th Cir. 1977). Therefore, before an inmate can be said to have a protected interest in possessing tangible personal property, that possession must not be prohibited by a lawful prison regulation. See Bell v. Wolfish, 441 U.S. 520, 553-55, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).
The Kansas prison regulations are fairly comprehensive. Although inmates are permitted to have stereos such as the one involved here, this particular stereo was not registered to plaintiff but was listed in prison records as belonging to another inmate. Plaintiff contends he obtained rightful ownership of the stereo through a trade of his old stereo and five cartons of cigarettes and the court believed this to be true. However, the regulations enacted to define the property rights of prisoners at Lansing indicate (1) that an inmate is not entitled to possession of property not registered to him (K.A.R. 44-12-201), (2) that an inmate may not obtain property by unauthorized trading with other inmates (K.A.R. 44-12-205) and (3) that inmates have no property right in items classified as contraband because they were seized as a result of a rule violation. K.A.R. 44-5-111.
The prison officials followed the regulations in this case by seizing the property suspected as belonging to another inmate and filing disciplinary charges. Petitioner was charged with theft and lying and the alternative offense of violating the registration requirement. Petitioner was convicted of theft and lying and the registration violation was dismissed. Because the stereo had been the subject of conflicting claims and charges of theft but was, in fact, registered as belonging to inmate Swaggerty, it was sent out of the prison to persons designated by Swaggerty. This action was consistent with the procedure for dealing with contraband stated in K.A.R. 44-5-lll(d). It was only after disposal of the property that plaintiff s conviction on the disciplinary charges was overturned for lack of counsel. At the time the property disposal was made, it was completely authorized by the prison regulations.
It might be argued that because petitioner was never re charged or convicted of any disciplinary offenses regarding the stereo, the disposal was premature and a deprivation of, at least, constructive possession of the device. See, e.g., Sell, 548 F.2d at 758. However, the initial seizure of the stereo was without a doubt permitted by the registration rule. With this seizure, the stereo could rightfully be classified as contraband under K.A.R. 44-5-111(a)(3). Once classified as contraband, plaintiff lost all rights to the property (44-5-111[c]), unless a finding was made that the item was not contraband. K.A.R. 44-5-111(f). There is no requirement in the rule that the inmate be convicted of violating the disciplinary rule which gave rise to the initial seizure of the property or its classification as contraband. There is, in short, ample discretionary power vested in the prison officials to have classified the stereo as contraband and to have disposed of it without a violation of any rights of plaintiff, particularly in light of plaintiff s admission that he acquired the stereo in a manner which violates the rules. Cf. Hanvey v. Blankenship, 474 F.Supp. 1349 (W.D. Va. 1979), aff'd 631 F.2d 296 (4th Cir. 1980) (a complete confiscation and disposal of property not denial of due process because state statute gave prison officials discretion to dispose of property seized for violation of rules regulating property possession).
Therefore, regardless of whether plaintiff was guilty of stealing the stereo or acquired it through trade, it could be classified as contraband and plaintiff would have no property interest in it. Since he had no protected interest in the stereo, its disposal did not work a deprivation of any constitutional right.
Plaintiff has not challenged the reasonableness of the regulations which permit prison officials to restrict inmates’ property rights or dispose of contraband. However, such regulations are constitutional if they are reasonable in light of the legitimate concerns and purposes of prison administration. Bell v. Wolfish, 441 U.S. at 554. In Bell, the Court reviewed prison regulations restricting the right of inmates to receive packages from outside the facility containing items of food or personal property. The Court reversed the lower court’s conclusion that this regulation was unreasonable and held that the rule did not deprive the inmates of property without due process. The Court appears to have acknowledged that the prison officials’ concern that the introduction of personal property into the facility would increase the risk of theft, gambling and inmate conflicts was not unreasonable. The Court cautioned that the review of prison regulations not become a substitution of judicial judgment for that of corrections experts.
The Kansas regulation requiring registration of all personal property possessed by inmates coupled with the limitations on the manner in which property may be lawfully obtained in prison have the effect of defining ownership rights to property. Thus, a standard is established to avoid inmate disputes over ownership of property while, at the same time, the proof and punishment of theft is facilitated. Since the prevention of theft and conflict in the prison population are both reasonable goals for prison officials, these regulations, like the one considered in Bell, are reasonable.
We conclude that, even if the petitioner could state a claim for a civil rights violation under § 1983, no violation of due process took place in this case because petitioner had no property right which was infringed upon by the action of the respondents. The prison regulations define petitioner’s property rights as a prison inmate and, under these reasonable regulations, he had no protectable interest in the property disposed of by the authorities.
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Parks, J.:
This appeal presents an issue regarding the proper venue for the dispositional proceedings in a case involving a juvenile offender.
Respondent A.T.K., Jr., was adjudicated a juvenile offender in Johnson County in August 1984. The adjudicating court went on to render disposition in the matter and the respondent appealed contending that venue for the disposition did not lie in Johnson County. On appeal, this court held, in an unpublished opinion, that respondent’s residence for the purposes of K.S.A. 1985 Supp. 38-1605 was in Franklin County and that disposition outside the county could be allowed “only upon motion by the complainant or another person authorized to appeal.” Opinion No. 57,405, filed May 31, 1985. The court vacated the judgment of disposition and remanded the matter for further action. The court further directed that if a motion were filed pursuant to 38-1605(c), the district court should hear the motion and make an appropriate finding as to the best interests of the child. On remand, the required motion was filed and the court found that A.T.K., Jr., “has and is now progressing in the structured program at the Youth Center at Topeka, and it is in the Respondent’s best interests to complete the program.” Respondent once again appeals, contending that the district court erred in granting the State’s motion and rendering disposition in Johnson County.
The administration of cases brought under the juvenile offenders code is divided into two stages — the adjudicatory stage and the dispositional stage. Venue for adjudicatory proceedings lies in the county in which the act of the alleged offense was committed. K.S.A. 1985 Supp. 38-1605(a). By contrast, venue for dispositional proceedings is governed by the following provisions:
“(b) Except as provided in subsection (c), venue for dispositional proceedings in any case involving a juvenile alleged to be a juvenile offender shall be in the county of the juvenile’s residence or, if the juvenile is not a resident of this state, in the county where the alleged offense was committed. When the dispositional hearing is to be held in a county other than the county where the alleged offense was committed, the adjudicating judge shall transmit the record of the adjudicatory hearing, and recommendations as to disposition, to the court where the dispositional hearing is to be held.
“(c) If the adjudicatory hearing is held in a county other than the county of the juvenile’s residence, the dispositional hearing may be held in the county in which the adjudicatory hearing is held if the adjudicating judge, upon motion by the complainant or any person authorized to appeal, finds that it is in the best interests of the juvenile offender and the community that the dispositional hearing be held in the county where the act was committed.” (Emphasis added.) K.S.A. 1985 Supp. 38-1605(b) and (c).
The divergence in the statutory treatment of venue for the two stages of a juvenile offender proceeding reflects the differences in the purpose of the procedural stages. The adjudicatory phase of the proceeding is concerned with whether there is proof that the juvenile committed the charged offense. K.S.A. 1985 Supp. 38-1655. Accordingly, the adjudicatory hearing should be held in the county in which the evidence bearing on that proof is most likely to be found. On the other hand, the dispositional phase of the proceedings is directed to securing for the juvenile “the care, custody, guidance, control and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society.” K.S.A. 1985 Supp. 38-1601. Thus, the provisions of K.S.A. 1985 Supp. 38-1605(b) and (c) reflect the legislative conclusion that the information to make a disposition appropriate to carry out this goal is most likely to be found in the juvenile’s resident county. It is only when the adjudicating judge finds that “it is in the best interests of the juvenile offender and the community that the dispositional hearing be held in the county where the act was committed” that the venue may properly lie outside the juvenile’s resident county. Therefore, the statute contemplates that the adjudicating court will engage in a separate and distinct level of deliberation on the propriety of the venue before engaging in any consideration of the proper disposition to be imposed on a nonresident juvenile.
It was determined in the earlier appeal of this case that the respondent’s residence is in Franklin County. For the Johnson County District Court in which respondent was adjudicated to be a juvenile offender to also be the locus of the dispositional decision, the court had to find that it would be in the best interests of the juvenile and community for it to impose disposition. No such finding was made; the court simply found that the disposition imposed earlier continued to be in the juvenile’s best interests. Therefore, in the absence of such a finding, the district court’s retention of venue for the purposes of disposition was erroneous.
In considering the best interests of the juvenile and the community for the purposes of deciding whether the adjudicating court had proper venue to hold a dispositional hearing, the court should consider the juvenile’s past, present and future contacts with both his resident county and the county in which the offense took place. Since the aim of the disposition should be to place the juvenile in a situation which will best serve both his rehabilitation needs and the protection of the community, the rendering of disposition is not a singular event. The court has available a number of alternatives to choose from in announcing an immediate disposition, including the commitment of the juvenile to the custody of a parent or other person, a youth residential facility or the Secretary of Social and Rehabilitation Services. K.S.A. 1985 Supp. 38-1663. However, the dispositional court retains authority and responsibility to modify the agent or terms of custody (K.S.A. 1985 Supp. 38-1665) and to revoke a placement or probation. K.S.A. 1985 Supp. 38-1666. In addition, even while the juvenile is in the custody of the Secretary, the court maintains oversight such that the Secretary must regularly report the conditions of any continuing custody arrangements. K.S.A. 1985 Supp. 38-1664(c). The Secretary is also obliged to notify the court prior to returning a juvenile to the home from which he was removed when the dispositional court recommended an out-of-home placement. K.S.A. 1985 Supp. 38-1664(a). Therefore, in deciding whether the interests of the juvenile offender and the community would best be served by the imposition of disposition in the county of adjudication rather than the county of the juvenile’s residence, where different, the court must consider the past and prospective contacts of the juvenile with each county and the court’s own ability to oversee the entire dispositional process.
The judgment of the trial court is vacated and the matter is remanded for a finding whether it is in the best interests of the juvenile offender and community that the dispositional hearing be held in Johnson County. If the finding required by K.S.A. 1985 Supp. 38-1605(c) is not filed within 30 days from the filing of the mandate of this case, the case should be transferred to Franklin County for a dispositional hearing as provided in K.S.A. 1985 Supp. 38-1605(b). | [
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Davis, J.;
Meadowlanders, Inc., and its insurance carrier, Insurance Company of North America, (hereinafter referred to as respondents) appeal from a district court workers’ compensation decision awarding Brad Knelson (claimant) 100 percent permanent partial disability. Respondents claim that the trial court erred in finding that (1) Kansas had jurisdiction to resolve this workers’ compensation dispute (K.S.A. 44-506); (2) claimant had sustained a 100 percent permanent partial disability; and (3) respondents were not entitled to credit against the award pursuant to K.S.A. 44-510f(b).
Claimant was a professional hockey player under contract to Meadowlanders, Inc., (New Jersey Devils Hockey Club). He was earning $25,000 for the 1982-83 season, playing for the Wichita Wind, Wichita, Kansas.
Claimant was injured in a hockey game played by the Wichita Wind in Salt Lake City, Utah, on or about March 2,1983. Another player blindsided (struck) claimant, causing him to feel a kind of shock and “the shift of just everything in my lower back.” Claimant left the ice and returned to the bench.
Within the next several weeks, claimant began to experience pain in his lower back, which made it difficult for him to skate. He consulted the team trainer, who instituted the standard treatment used to correct pulled muscles and other minor injuries. Claimant continued to play the remainder of the Wichita Wind’s 1982-83 season and then signed an option with Meadowlanders, Inc., to play out the 1983-84 season.
Claimant consulted the Wichita Wind’s team chiropractor about his problem during the off season in the summer of 1983. He reported for training camp in New Jersey in the fall of 1983, but was forced to discontinue skating after one week because of pain in his left leg and left buttock accompanied by tingling in his left foot. The team physician referred him to an orthopedic specialist in New York City in September 1983.
The orthopedist, Dr. Patrick F. O’Leary, diagnosed disc degeneration and recommended either surgery or, more favorably, a course of physical therapy. Knelson elected to pursue rehabilitation through physical therapy. After the season was two or three months old, claimant returned to Wichita to continue his therapy.
Claimant last saw Dr. O’Leary in early 1984. At that time Dr. O’Leary noticed a considerable improvement. Claimant was released to play hockey or, more precisely, to begin skating again.
Claimant contacted the Meadowlanders, Inc., organization about returning to play, but the parties agreed that it was so near the end of the season that his return was infeasible. He could not have returned to playing form before the season was over. He received his $25,000 contract salary during the 1983-84 season, as if he were a member of the Wichita Wind. Claimant attempted to skate once thereafter in March 1984, but was unable to gauge any deficiency because he was not in playing form for competí tive sport. He experienced his left leg giving out on him at times and also a “floppy” sensation and numbness in the leg. He has not tried to play hockey since he was released by Dr. O’Leary.
A medical evaluation indicated that, although claimant had made a remarkable recovery, he had a remaining ten to fifteen percent permanent impairment of function to his body as a whole. It was not recommended that claimant return to competitive sports, particularly hockey.
On August 2, 1984, claimant filed with the State of Kansas, Division of Workers’ Compensation, a workers’ compensation claim against Meadowlanders, Inc., and its insurance carrier. On December 4, 1985, an administrative law judge, after hearing testimony and reviewing the evidence, found that claimant had sustained a fifteen percent impairment of function to his body as a whole. Claimant was found to be 100 percent work-disabled because, although he otherwise was in excellent health, he could no longer function as a professional hockey player. Claimant was awarded compensation at $204.00 per week, not to exceed $75,000, for a 100 percent permanent partial general body disability and medical compensation.
Respondents applied for a director’s review of the award. In an order filed February 24, 1986, the Director of Workers’ Compensation affirmed the December 4, 1985, award of the administrative law judge. Respondents appealed to the district court, which approved the findings of fact and conclusions of law entered by the Workers’ Compensation Director. Respondents timely appeal.
Respondents contend that because the principal place of employment was not the State of Kansas and the contract of employment with claimant was not made in Kansas, jurisdiction was not based in Kansas under the following provisions of K.S.A. 44-506:
“Provided, That the workmen’s compensation act shall apply also to injuries sustained outside the state where: (1) The principal place of employment is within the state; or (2) the contract of employment was made within the state, unless such contract otherwise specifically provides: . . . .” (Emphasis added.)
Although the above statute does not indicate whether the employer’s or employee’s principal place of employment is the basis for Kansas jurisdiction, legislative history establishes that the Kansas legislature intended the employee’s principal place of employment be the basis for jurisdiction. Kansas Workers’ Compensation Practice Manual § 3-6 (1984) (citing Herrington, Workmen s Compensation — Major Changes In Employments Covered, Benefits, Defenses, Offsets, and Other Changes, 24 Kan. L. Rev. 611, 618 [1976]).
The burden of proof is upon the claimant to establish the right to an award of compensation by proving the various conditions on which the right depends by a preponderance of credible evidence. Box v. Cessna Aircraft Co., 236 Kan. 237, Syl. ¶ 2, 689 P.2d 871 (1984); K.S.A. 44-501.
At the time of his injury, claimant was employed by Meadowlanders, Inc., the corporate owner of the New Jersey Devils professional hockey team. Claimant entered into a contract of employment with the respondent in October 1982, and, thereafter, played for a minor league club, the Wichita Wind, throughout the 1982-83 season. Wichita, Kansas, was his base of operations, and claimant traveled from that location to the March 1983 game in Salt Lake City, Utah. He played on no other teams during the 1982-83 season. He received his paychecks in Wichita, Kansas.
The trial court’s conclusion that claimant’s principal place of employment was within the State of Kansas at the time of his injury is supported by substantial competent evidence. Kansas therefore had jurisdiction to entertain his claim under the provisions of K.S.A. 44-506(1).
Second, respondents claim there was no substantial evidence to support the trial court’s finding that claimant was 100 percent permanently partially disabled.
Essentially, respondents contend that claimant was released by physicians to play hockey without restriction but never attempted to do so. In addition, respondents contend that the claimant made a remarkable recovery from a herniated disc and has little residual effect from the injury, as confirmed by his own medical expert. Based upon these contentions, respondents argue that there is insufficient evidence of record to support the trial court’s finding that claimant sustained a 100 percent permanent partial disability to his body as a whole.
“The test to determine whether claimant has suffered and continues to suffer permanent partial general disability is set forth in K.S.A. 44-510e(a): ‘The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury, has been reduced.’ ” Asay v. American Drywall, 11 Kan. App. 2d 122, Syl. ¶ 2, 715 P.2d 421 (1986).
“The pivotal question is what portion of claimant’s job requirements is he or she unable to perform because of the injury? Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984); Ploutz v. Ell-Kan. Co., 9 Kan. App. 2d 9, 668 P.2d 196 (1983). See Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 611 P.2d 161, rev. denied 228 Kan. 807 (1980).” 11 Kan. App. 2d at 124.
In Bigger v. Kansas Dept. of Revenue, 11 Kan. App. 2d 108, Syl. ¶ 1, 715 P.2d 1038 (1985), this court held:
“Under the statutory definition of permanent partial disability set forth in K.S.A. 44-510e, a claimant can be found to be totally unable to perform any portion of work of the same type and character performed at the time of the injury, yet still be able to engage in gainful employment; or, stated another way, when factually supported, a finding of 100 percent permanent partial disability is proper.”
The only medical testimony came from Dr. Roy Coffey, M.D., a Salina, Kansas, orthopedist specializing in sports medicine. Dr. Coffey testified that claimant had made a remarkable recovery from a herniated disc, but had a remaining ten to fifteen percent impairment of function to his body as a whole on a permanent basis. Dr. Coffey stated this meant that claimant “can do ordinary activities without trouble, but I doubt if he would want to or anybody would recommend that he go back to competitive athletics, especially hockey.”
Dr. Coffey testified his delineation of a ten to fifteen percent impairment was based on “the history of the injury, the fact he had a positive discogram in New York and the fact that at one time his pain was unbearable, but with doctors’ recommendations and his motivation he actually cured himself, and the 10 to 15 percent recognizes an injury, a herniated disc and a good recovery, but it also recognizes his back isn’t what it was before he got hurt.” Dr. Coffey also testified that because it takes time for a herniated disc to develop, it was not unusual that claimant’s symptoms increased over time or that he continued to play out the 1982-83 season although injured.
Claimant testified that his medical release was with the restriction that “if it hurt not to play any more; but if I wanted to make an attempt, I could.” He testified that he was not aware of any hockey player who was able to continue playing the sport of hockey after suffering a herniated disc. He testified that he sometimes felt a floppy sensation in his left leg or his left leg giving out in strength. He also testified that Dr. O’Leary had informed him that his lower back problem could result in a weakness of the left leg as the years passed.
In Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981), the supreme court, quoting Crabtree v. Beech Aircraft Corp., 5 Kan. App. 2d 440, 442, 618 P.2d 849 (1980), noted, “ ‘Medical evidence is not essential to the establishment of the nature and extent of an injured worker’s disability, nor is a court limited by such evidence; the testimony of the claimant may be considered as well as the medical evidence.’ ”
We conclude under the facts of this case that there was substantial competent evidence to support the trial court’s finding that claimant was unable to return to playing professional hockey and, therefore, was entitled to a 100 percent permanent partial general body disability award.
Finally, respondents contend they were entitled under the provisions of K.S.A. 44-510f(b) to a credit against the workers’ compensation award for the wages paid claimant during the 1983-84 hockey season.
Under certain prescribed circumstances, an employer who voluntarily paid unearned wages is entitled to credit on the subsequent workers’ compensation owed. K.S.A. 44-510f(b) states:
“If an employer shall voluntarily pay unearned wages to an employee in addition to and in excess of any amount of disability benefits to which the employee is entitled under the workmen’s compensation act, the excess amount paid shall be allowed as a credit to the employer in any final lump sum settlement, or may be withheld from the employee’s wages in weekly amounts the same as the weekly amount or amounts paid in excess of compensation due, but not until and unless the employee’s average gross weekly wage for the calendar year exceeds one hundred twenty-five percent (125%) of the state’s average weekly wage, determined as provided in K.S.A. 44-511 and amendments thereto. The provisions of this subsection shall not apply to any employer who pays any such unearned wages to an employee pursuant to an agreement between the employer and employee or labor organization to which the employee belongs.”
Respondents argue that, because claimant was playing out his option year, the employment contract established that payments made to him were voluntary and that the K.S.A. 44-510f(b) credit applied. Paragraph 5(d) of the contract executed between the parties in 1982 states:
“It is also agreed that if the Player, in the sole judgment of the Club’s physician, is disabled and unable to perform his duties as a hockey player by reason of an injury sustained during the course of his employment as a hockey player, including travel with his team or on business requested by the Club, he shall be entitled to receive his remaining salary due in accordance with the terms of this contract for the remaining stated term of this contract as long as the said disability and inability to perform continue but in no event beyond the expiration date of the fixed term of this contract, which fixed term shall in no event be deemed to include any option period related to a playing season after the playing season in which the injury occurred and the Player releases the Club from any and every additional obligation, claim or demand whatsoever. Any disagreement as to disability or inability to perform shall be determined conclusively by doctors of the Club and of the Player and, in the event said doctors are unable to agree, by an independent doctor selected by said doctors. If the Player is declared to be unfit for play, he shall continue to receive the full benefits of this Agreement. If the Player is declared to be physically able to play and refuses to do so, he shall be liable to immediate suspension without pay.” (Emphasis added.)
In its denial of respondents’ request for statutory credit, the district court ruled:
“As to the final issue of whether or not the respondent and insurance carrier are entitled to credit under K.S.A. 44-510f(b) for payments made to the plaintiff under his professional hockey contract executed October 4, 1982, the Court finds that the statute in question is not applicable to this set of facts because the defendant employer was not paying the plaintiff s employment contract for the 1983-84 hockey season voluntarily or as unearned wages. That contract required the employer to pay the plaintiff whether or not he worked as a hockey player. Therefore, the request for statutory credit is denied.”
The record reveals that after claimant’s injury in March 1983, he completed the 1982-83 season. Despite continuing problems resulting from his injury, he reported to training camp in the fall of 1983. Claimant left training camp for medical treatment and, although he did not play in the 1983-84 season, received his entire $25,000 salary from the respondent. Although claimant was receiving medical treatment during most of the 1983-84 season, there is no evidence in the record to indicate that the $25,000 paid to claimant for the 1983-84 season was made by reason of claimant’s disability. A letter written by the vice-pres ident of Hockey Operations and general manager of the New Jersey Devils, and stipulated into evidence, indicates the $25,000 was paid to claimant under a “termination contract” entered into between respondent and claimant prior to the 1983 training camp. A copy of this contract has not been included in the record on appeal.
Under the facts of this case, we conclude that the respondents are not entitled to a credit against the award for payments made to claimant under a legal obligation independent of the Workmen’s Compensation Act, particularly where those payments had such an uncertain relationship to claimant’s disability. The above facts, when viewed in a light most favorable to the party prevailing below, provide substantial competent evidence to support the district court’s denial of credit to respondents under the provisions of K.S.A. 44-510f(b).
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Kennedy, J.:
Morris E. Johnson appeals an order directing that he be confined in the Barton County jail until such time as he purges himself of contempt of court for failure to pay child support.
Morris and Louise Johnson were married on February 26, 1956. On February 17,1973, Louise filed a divorce action against Morris and a divorce was granted on July 19, 1973. Custody of the minor children was awarded to Louise, and Morris was ordered to pay child support in the sum of $350.00 per month.
Morris has never made regular child support payments. On five separate occasions, Louise has filed a total of eight garnishments attempting to collect past due support payments. On only one occasion has Louise been successful in collecting past due child support through a garnishment. The answer to the most recent garnishment, January 1985, shows Morris was overdrawn in his bank account in the sum of $148.00.
Louise filed twelve separate motions for citations but only the first three were accompanied by an affidavit. None of the affidavits stated any facts; rather, they merely contained a conclusion that Morris was in violation of the court order concerning support. The last nine motions were filed without any affidavits.
Morris had a variety of experiences as a result of the motions that were filed. On one occasion the order of citation to issue was recalled, and once the motion was dismissed. On two occasions Morris was found not guilty. On three occasions there is nothing in the court file which reflects whether there was even a hearing. Several times Morris was found guilty and the judge stayed execution of sentence. The record reflects that in 1975 and 1977 Morris was sentenced to jail and sentence was carried out.
The last motion for citation was filed on December 27, 1984. Morris and Louise’s youngest child had become eighteen years of age on November 18, 1984.
Morris was ordered to appear on January 18, 1985. He was found to be in contempt of court; however, sentencing was deferred for 60 days. On May 3, 1985, an order was entered finding Morris to be in contempt of court and ordering that he be incarcerated in the Barton County jail until such time as he had purged himself of contempt. Morris was not represented by counsel at either the January or May 1985 hearing.
Although not raised by Morris on appeal, we note that the fact that all of the children are adults will not defeat contempt proceedings under K.S.A. 20-1204a to enforce the payment of past due installments of court-ordered child support. Crumpacker v. Crumpacker, 239 Kan. 183, 718 P.2d 295 (1986).
Two issues are presented on appeal. The first is whether the district court had jurisdiction to hear a motion for indirect contempt of court if the motion is not accompanied by a supporting affidavit setting forth the specific allegations as required by K.S.A. 20-1204a. This is the first time Morris has challenged the jurisdiction of the court on this ground although, as noted above, this was the ninth motion filed by Louise without a supporting affidavit.
“The power to punish for contempt of court does not arise from statutory legislative action, but is inherent in the court itself. In re Millington, 24 Kan. 214 (1880).” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983). However, the procedures to be followed in a contempt of court action were codified at a very early stage in this state’s history.
K.S.A. 20-1204a(a) provides:
“When an order in a civil action has been entered, the court that rendered the same may order a person alleged to be guilty of indirect contempt of such order to appear and show cause why such person should not be held in contempt if there is filed a motion requesting an order to appear and show cause which is accompanied by an affidavit specifically setting forth the facts constituting the alleged violation.”
The rationale for requiring an affidavit is set forth in Hartman v. Wolverton, 125 Kan. 202, 205, 263 Pac. 789 (1928), where Justice Burch, speaking for the court, stated:
“Since contempt of court may be punished by fine and by imprisonment, a person charged with contempt is entitled to know the nature and cause of the accusation against him. . . . Process to bring the accused before the court must be founded on affidavit showing the contempt, except in cases not material here, and when the accused is brought before the court a written accusation setting forth succinctly and clearly the facts constituting the contempt must be filed. [Citation omitted.]”
The failure to file an affidavit with a motion for citation may deprive the trial court of jurisdiction. Weber v. Sutorius Bread Company, 185 Kan. 178, 341 P.2d 965 (1959); In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957 (1893). However, the court will have jurisdiction if the person allegedly in contempt waived the filing of an affidavit either by filing an answer and proceeding to trial or by some other affirmative action. State v. McPherson, 208 Kan. 511, 518, 493 P.2d 228 (1972); Hartman v. Wolverton, 125 Kan. at 205; Butler v. Butler, 82 Kan. 130, 107 Pac. 540 (1910); State v. Walker, 78 Kan. 680, 97 Pac. 862 (1908). In Walker it was stated:
“The failure of the appellant to make any objection to the proceedings and his giving of a recognizance for his appearance waived all irregularities, if there were any, up to that time.
“It will not be presumed that the district judge acted outside his jurisdiction. If he did so the fact should have been shown.
“The answer of the appellant to the merits waived all technical defects in the accusation.” 78 Kan. at 681.
In the present case there is a long history, dating back to at least 1975, of Morris appearing in court and defending motions for citation without raising any objection to the failure of Louise to file an affidavit. Such a course of conduct serves as a waiver and the court did have jurisdiction to hear the motion.
Morris’ second issue is whether an order of indirect contempt of court is void where the district court conducts the trial on the accusation of indirect contempt without preserving the testimony as required by K.S.A. 20-1205. A review of the cases and K.S.A. 20-1205 leads us to the conclusion that it is void.
There are many reasons for failing to comply with a court’s orders. As stated in Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946 (1938), it was proper for the district court to find a husband not guilty of contempt where his failure to pay was because it would have caused him hardship and the failure to pay was not willful to such a degree as to amount to contemptuous disobedience. Not being able to work or not having sufficient assets are other reasons for not paying. The test for whether or not an act is an indirect contempt of court is set out in Threadgill v. Beard, 225 Kan. 296, Syl. ¶ 6, 590 P.2d 1021 (1979): “Whether a particular act or omission is contemptuous depends not only upon the nature of the act itself, but upon intent, good faith, and the surrounding circumstances.”
State v. McPherson, 208 Kan. 511, stands for the proposition that the taking of testimony and the preservation of the same is mandatory and a requisite for jurisdiction. See also In re Gam brell, 160 Kan. 620, 164 P.2d 122 (1945), reh. denied 161 Kan. 4, 165 P.2d 760 (1946). The reasons for this requirement are obvious. Without a transcript of the trial there is no way for an appellate court to exercise any meaningful review to determine whether the trial court has abused its discretion.
We find that under the facts of this case, Morris Johnson did not waive the requirements of K.S.A. 20-1205 by his prior appearances in court or his failure to request that the testimony be preserved. Since the court failed to preserve the testimony, it did not have jurisdiction over Morris. The judgment convicting him of indirect contempt is set aside and the case is remanded to the district court.
There is one additional matter that must be mentioned. While this case was on appeal, the United States Court of Appeals, Tenth Circuit, handed down its decision in Walker v. McLain, 768 F.2d 1181 (10th Cir. 1985), cert denied 474 U.S. 1061, 106 S. Ct. 805 (1986). In Walker, the appellant was under a court order to pay $500.00 per month in child support. He was disabled and $380.00 of his monthly payment represented the children’s share of his monthly social security disability benefits. Appellant was to pay an additional $120.00 per month from his income. He never paid the additional $120.00 per month.
Appellant was found to be in indirect contempt of court and sentenced to jail for 90 days or until he purged himself of contempt. Appellant filed a habeas corpus action alleging that his incarceration was illegal because the state trial court failed to appoint counsel to represent him or to advise him of his right to appointed counsel. The federal district court denied the petition and on appeal the Tenth Circuit Court reversed.
The court found that:
“due process does require, at a minimum, that an indigent defendant threatened with incarceration for civil contempt for nonsupport, who can establish indigency under the normal standards for appointment of counsel in a criminal case, be appointed counsel to assist him in his defense.” 768 F.2d at 1185.
The court further held, “An indigent’s right to appointed counsel imposes on the court an obligation to inform him of that right.” 768 F.2d at 1185.
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Abbott, C.J.:
This is an appeal by the claimant, Dorothea Slack, in a workers’ compensation case. The sole issue on appeal is the calculation of compensation in an occupational disease case under the “diminution of earning capacity” test.
Both sides rely on Schubert v. Peerless Products, Inc., 223 Kan. 288, 573 P.2d 1009 (1978). In Schubert our Supreme Court stated the test for arriving at the compensation rate in an occupational disease case:
“If the capacity of the workman to earn wages in any trade or employment is less than the amount the workman was earning at the time of the disability, the difference represents the diminution of earning capacity and is a basis for applying the statutory 66%% to reach the compensation rate.” (Emphasis supplied.) 223 Kan. at 293.
The administrative law judge computed the claimant’s predisability average weekly wage as follows:
Basic Straight Wage $223.20
(36 hrs. per week @ $6.20 per hr.)
Average weekly overtime 82.79
($2,152.45 divided by 26 precd. wks)
Fringe Benefits 42.50
(Health Insurance) _
Total Weekly Earning Capacity $348.49
The director used the basic straight wage of $223.20 per week and disallowed anything for overtime and fringe benefits, apparently because a wage survey indicated overtime and similar fringe benefits were available in other occupations in the area. Both the administrative law judge and the director found a post-disability earning capacity of $152 per week (38 hours per week at $4.00 per hour).
The administrative law judge thus arrived at a weekly compensation rate of $131 per week ($348.49 minus $152.00 equals $196.49. 66%% of $196.49 equals $131.00). The director arrived at a weekly compensation rate of $47.47 ($223.20 minus $152.00 equals $71.20. 66%% of $71.20 equals $47.47). The trial court adopted the director’s opinion.
Respondent Thies Development Corporation contends the director correctly used only the claimant’s hourly wage, exclusive of fringe benefits and overtime, in arriving at the compensation rate. Much of its brief is devoted to determining earning capacity and it contends that actual post-disability earnings are not to be equated with earning capacity. The claimant relies on the definition of “wage” under the Kansas Workmen’s Compensation Act in support of her contention that overtime and fringe benefits should be included in computing pre-disability and post-disability earning capacity.
Since there is no cross-appeal, we do not have before us the question of whether claimant’s capacity to earn wages is less now than at the time of her disability. Thus, we start with the premise that the claimant has a diminished capacity to earn wages, and the question before us is whether the district court erred, as a matter of law, in excluding overtime and fringe benefits from the computations.
Under the Kansas Workmen’s Compensation Act, the compensability of occupational disease is determined in the same manner as cases of accidental injury, unless the statutes otherwise provide. K.S.A. 44-5a01(a) states:
“(a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen’s compensation act, the disablement ... of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman . . . shall be entitled to compensation for such disablement . . . resulting from an occupational disease, in accordance with the provisions of the workmens compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases.” (Emphasis supplied.)
The statutes contained in the occupational disease section (K.S.A. 44-5a01 et seq.) provide no instruction on computing a worker’s compensation. The discretionary power of the director to cancel an award where a worker earns the same or greater wages post-disability than pre-disability is the only provision having any relevance to determining compensation in this case. K.S.A. 44-5a04 reads, in pertinent part:
“If the director shall find that the workman has returned to work for the same employer in whose employ he was disabled or for another employer and is capable of earning the same or higher wages than he did at the time of the disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the disablement, . . . the director may cancel the award and end the compensation.”
See Hill v. General Motors Corporation, 214 Kan. 279, 519 P.2d 608 (1974).
This statute addresses the respondent’s concern of using actual wages to arrive at earning capacity because a worker could seek no work at all or could seek low-paying occupations to ensure the greatest possible compensation rate. However, the director could step in and prevent such practices if a worker were truly capable of working in higher-income occupations.
Since there is no statutory authority in the occupational disease section, the other compensation provisions contained in the Act are applicable. The “average weekly wage” concept is the formula which is applicable in nearly every instance of computing compensation benefits. There is nothing under Kansas law or in Schubert to suggest that the method of determining a worker’s average weekly wage is not equally applicable in occupational disease cases. The concept would appear to us to be the basis upon which “diminution of earning capacity” is computed. That is, the difference between pre-disability average weekly wage and the capacity to earn a post-disability average weekly wage is the basis to which the statutory rate is applied.
The use of the term “wage” by the Kansas Supreme Court in Schubert to state the “diminution of earning capacity” test does not confine the measurement to a claimant’s base hourly wage. K.S.A. 44-511(a)(3) defines “wage” as follows:
“(3) The term ‘wage’ shall be construed to mean the total of the money and any additional compensation which the employee receives for services rendered for the employer in whose employment the employee sustains an injury by accident arising out of and in the course of such employment.” (Emphasis supplied.)
The terms “money” and “additional compensation” are further defined in K.S.A. 44-511(a)(1) and (2) respectively:
“(1) The term ‘money’ shall be construed to mean the gross remuneration, on an hourly, output, salary, commission or other basis, at which the service rendered is recompensed in money by the employer, but it shall not include any additional compensation, as defined in this section, any remuneration in any medium other than cash, or any other compensation or benefits received by the employee from the employer or any other source.
“(2) The term ‘additional compensation shall include and mean only the following: . . . employer-paid life insurance, health and accident insurance and employer contributions to pension and profit sharing plans.” (Emphasis supplied.)
The claimant’s hourly wage and overtime pay are included within the meaning of “money,” and claimant’s fringe benefit (paid insurance) is included within the meaning of “additional compensation.” All three items constitute a part of claimant’s wage and, therefore, must necessarily be included in the computation of claimant’s average weekly wage, both before and after the disability.
Thus, the director and district court’s computation of the pre-disability weekly wage compensation rate was erroneous, since it was limited to the claimant’s base hourly wage and did not include overtime or fringe benefits.
An argument can be made that the director and district judge reached the same result by holding similar overtime and fringe benefits are available in the area and within the post-disability capacity of the claimant to earn. The obvious fallacy of that argument is that the director and district court found the base wage post-disability capacity of claimant to be $4.00 per hour. Overtime would thus be $6.00 per hour. Her pre-disability base hourly rate was $6.20 per hour which computes to a $9.30 per hour overtime rate. The actual overtime rate in this case is slightly lower than $9.30 because of the statutory method of computing overtime. (Claimant received a raise during the base period). Thus, by taking the director’s and district judge’s “short-cut,” the claimant would be shorted $3.30 per hour on her overtime pay.
Here, the claimant was a full-time hourly employee as defined by K.S.A. 44-511(a)(5). The method of computing the gross average weekly wage of a full-time hourly employee is set forth in K.S.A. 44-511(b)(4). Since the base wage (computed on a 36-hour work week) is not challenged or questioned by either party, we accept it without comment.
The post-disability average weekly wage has an additional error not raised by the parties. The parties stipulated that the average work week in the post-disability job is 38 hours. It is not fair to offset a loss due to physical impairment by earnings attributable solely to claimant working more hours per week. 2 Larson’s Workmen’s Compensation Law § 57.33, pp. 10-152, 10-153 (1983). The respondent, of course, would and should be allowed to offset the additional two hours worked at the base wage of $4.00 per hour against the claimant’s pre-disability overtime rate of pay. However, the net result will not change because of this error in computation, and we point it out only because it could have an effect in similar cases that do not involve overtime.
We also accept the director’s overtime computation because its accuracy is not challenged. That figure is, in our opinion, more accurate than that of the administrative law judge.
The remaining arguments advanced by the respondent on the compensation issue focuses on the “earning capacity” language and consideration of the area wage surveys for other occupations. The director reasoned that overtime and fringe benefits could be excluded from the computation of earning capacity because the wage summary indicated fringe benefits were provided in most occupations similar to that which the claimant received at her pre-disability occupation. We would not dispute the availability of fringe benefits in other occupations which the claimant may be capable of obtaining. However, there was absolutely no evidence before the director as to the value of the fringe benefits obtainable in other occupations. The director’s reasoning necessarily presumes that the values of the fringe benefits are equal. Due to the extent and variety of fringe benefits available to an employee and their range in value, such an assumption is not reasonable. Moreover, there was nothing in the wage surveys pertaining to overtime policies and pay. Therefore, the reasoning upon which the director computed earning capacity, comprised solely of the hourly wage, is not supported by the evidence.
In the case of the claimant’s post-disability occupation there was no evidence that the claimant could in fact obtain either overtime or fringe benefits. The only evidence of claimant’s present earning capacity was the stipulation as to hours and hourly wage at her new job. In short, the claimant’s earning capacity at her post-disability occupation was limited to a straight-time wage basis. The only other evidence was claimant’s testimony that she was unable to find employment — even at the minimum wage — despite a diligent search for employment.
The respondent vigorously argues that earning capacity for post-disability occupations cannot be equated with actual wages earned. Indeed, Kansas has recognized that the concepts of loss of wage-earning capacity and actual wage loss are distinct and different. See Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 625 P.2d 453 (1981). (The compensation payable for permanent total, temporary total and permanent partial disabilities is for loss of wage-earning capacity.)
In' occupational disease cases, a worker’s capacity to earn wages from any trade or employment is relatable to the amount of compensation due. Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P.2d 3 (1967) (a worker’s post-disability earning, capacity is not confined to work of the same type and character he was able to perform before the occupational disability). Though not conclusive, actual post-disability wages earned may be an evidentiary factor of a worker’s earning ca pacity. See Maryland Casualty Company v. Goetz, 337 S.W.2d 749, 752 (Tex. Civ. App. 1960).
The principle cited by respondent that claimant has the burden of proving the nature and extent of her disability for entitlement to compensation is not applicable here. The question of claimant’s disability is not an issue on appeal. The method of computing compensation is the sole question. In a discussion of the appropriate measure in occupational disease cases, the following is stated in the Kansas Workers’ Compensation Practice Manual (2d ed. 1984) at 6-18:
“If the claimant earns the same or a greater wage after release from treatment for the occupational disease or is capable of earning the same or a greater wage . . . the claimant is not entitled to a permanent award. In these cases, the employer is entitled to show the claimant’s wage earning capacity either by showing wages earned at any job after release, what type of work and wage the claimant is capable of earning with that employer or the claimant’s wage earning capacity in other jobs by the use of vocational experts, employment experts or personnel representatives.”
In American Metals Climax v. Cisneros, 39 Colo. App. 559, 571 P.2d 315 (1977), aff'd 195 Colo. 163, 576 P.2d 553 (1978), the Colorado Court of Appeals held that a claimant who was an underground miner and had contracted silicosis was not required to prove he was not capable of earning a wage in the general labor market at least equal to that earned prior to the occupational disease; claimant proved he was no longer able to work as an underground miner because of occupational disease, and the burden was on the employer to prove that other work was available to claimant in which he could earn wages comparable with those that he would have received as a miner.
The bottom line in the case before us is that the respondent’s evidence of the claimant’s earning capacity is deficient. While the wage surveys indeed may be evidence of numerous other occupations in the area with wages comparable to claimant’s pre-disability job, there was no evidence whatsoever of claimant’s ability to perform the other jobs. Moreover, the claimant’s post-disability job is evidence of the claimant’s earning capacity, as the director and district court apparently found. In the absence of other evidence of claimant’s earning capacity, the administrative law judge and director did not err in using claimant’s actual wages in computing her post-disability earning capacity. Finally, if the post-disability job was reflective of claimant’s earning capacity, the calculation was confined to the basic straight wage because no evidence of additional compensation or overtime in that job was presented, and the stipulation .is prima facie evidence that none was available.
The director has the power to cancel the claimant’s award if, at a later date, it is determined that the claimant is capable of a greater earning capacity than she is exhibiting. K.S.A. 44-5a04.
To summarize, the administrative law judge correctly utilized the average weekly wage concept in computing the claimant’s earning capacity. Thus, overtime and fringe benefits were properly included in the administrative law judge’s computation. The claimant’s actual wages in her post-disability occupation were evidence of her earning capacity. In the absence of evidence to demonstrate a higher earning capacity, the administrative law judge was correct in limiting compensation of claimant’s post-disability earning capacity to her actual wages. The director and district court were incorrect in their computation of compensation.
The case is reversed and remanded with directions to compute claimant’s award based on a gross weekly pre-disability wage of $334.58 (base $223.20; overtime $68.88 [taken from the wage statement]; fringe benefits $42.50) and a post-disability wage of $152.00 per week, a difference of $182.58, for a weekly compensation rate of $121.72. | [
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Brazil, J.:
Otha Chappell, Jr., appeals his conviction of aggravated failure to appear. K.S.A. 21-3814.
The case was submitted to the trial court on stipulated facts as follows:
“1. The defendant, Otha Chappell, Jr., was charged on November 8, 1982, with felony theft, Sedgwick County Case No. 82 CR 1917, and was released on bond following his arrest. . . .
“2. That on February 8, 1983, defendant entered into an agreement with the Sedgwick County District Attorney’s Office placing the defendant on pretrial diversion pursuant to K.S.A. 22-2907; further, that on February 8, 1983, the district court approved the diversion agreement and removed defendant’s case from the criminal court trial docket. . . .
“3. That said diversion agreement required the defendant to (among other things) make monthly reports to the district attorney’s office and to report any change of address.
“4. That records in the District Attorney’s Office would show that the defendant made two monthly reports, one in March and one in April of 1983, and in those reports indicated a change of address from 4263 Greenhaven (as shown on the appearance bond) to 1211 Vz East English, Wichita, Kansas.
“5. That sometime after these reports were made the defendant left Kansas and failed to report further.
“6. That on June 10, 1983, and on August 5, 1983, letters were sent to the defendant at 1211 Vz East English telling him he was in violation of his diversion contract, and said letters were returned to the district attorney’s office marked ‘moved, left no forwarding address.’
“7. That on August 17, 1983, the district attorney filed a motion to take the defendant off diversion and place his case back on the jury trial docket, and copies of the motion and notice of hearing were sent to the defendant at 1211 Vz East English, his last known address, and to his attorney; further, that the defendant never received said motion and notice of hearing and had no knowledge of said motion and hearing.
“8. That on September 2, 1983, the motion to take the defendant off diversion was sustained by the district court without any appearance by the defendant or his attorney, and the case was set for jury trial on October 24, 1983.
“9. That on September 27, 1983, attorney Tom Fulzenloger was allowed to . withdraw as attorney for the defendant; further, on September 28, 1983, attorney Andrew Busch was appointed to represent the defendant.
“10. That on December 5, 1983, the defendant’s case was called for jury trial; that the defendant, because of his absence from the state, had never received notice of the October 24 or December 5 trial dates, and had no knowledge he was to appear on those dates; that neither the defendant nor his newly-appointed counsel appeared on December 5, when the case was called for jury trial; further, that the district court ordered a forfeiture of the defendant’s bond on that date and issued an alias warrant for the defendant’s arrest.
“11. That the defendant, because of his absence from the state, never received notice of this bond forfeiture and made no further court appearances until after his arrest on August 23, 1985.
“12. That no further trial or appearance date was set for the defendant until after he was arrested on August 23, 1985.”
K.S.A. 21-3814 defines the crime of aggravated failure to appear.
“Aggravated failure to appear is willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within thirty (30) days following the date of such forfeiture by one who is charged with a felony and has been released on bond for appearance before any court of this state . . .
To establish a violation of K.S.A. 21-3814, the State must prove that defendant incurred a forfeiture of his appearance bond, the forfeiture was incurred willfully, defendant did not surrender within 30 days following his forfeiture, and defendant was charged with a felony.
Defendant argues the diversion agreement terminated his appearance bond obligation. He claims the diversion agreement superseded the conditions of the appearance bond and, thus, the appearance bond conditions ceased to have effect. As a result, the State failed to prove an element of the crime because the appearance bond was never forfeited.
The appearance bond states that the defendant and his surety “do hereby bind ourselves to the State of Kansas in the sum of One Thousand Dollars ($1,000.00) conditioned upon the appearance of the above-named defendant on the 17th day of November, 1982 . . . and thereafter before a Judge when ordered, to answer the charge against the defendant and from time to time thereafter as the Court may require until the case is terminated.” (Emphasis added.) The bond specifies no conditions other than the above-mentioned times of appearance. It next states:
“If the amount of the recognizance required for the defendant’s appearance or the other conditions are modified from the above amount or conditions, then this bond is null and void, and a new bond in the required amount and/or with the modified other conditions must be posted at that time.
“We, the undersigned, state that this bond is continuing in nature.” (Emphasis added.)
Under the terms of the bond, if the diversion agreement constitutes a modification of the appearance bond conditions, the bond is null and void and defendant could not have breached its conditions and forfeited his appearance bond.
The applicable statutory provisions governing the provisions of diversion agreements and the failure to fulfill those provisions are found at K.S.A. 1985 Supp. 22-2909(f) and 22-2911. K.S.A. 1985 Supp. 22-2909(f) provides:
“If the county or district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement shall be filed with the district court and the district court shall stay further proceedings on the complaint.” (Emphasis added.)
K.S.A. 1985 Supp. 22-2911 states:
“(a) If the county or district attorney finds at the termination of the diversion period or any time prior thereto that the defendant has failed to fulfill the terms of the specific diversion agreement, the county or district attorney shall inform the district court of such finding and the district court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint.
“(b) If the defendant has fulfilled the terms of the diversion agreement, the district court shall dismiss with prejudice the criminal charges filed against the defendant.”
The appearance bond conditions defendant’s release upon his appearance to answer the charge against him and “from time to time thereafter as the court may require until the case is terminated.” (Emphasis added.) The State argues entry into the diversion agreement merely stays proceedings in the criminal prosecution; it does not terminate the case.
While we agree that the case was not terminated by the diversion agreement, we believe that it was indefinitely removed from the criminal trial docket by operation of K.S.A. 1985 Supp. 22-2909(f). From that point until such time, if ever, that the criminal proceedings would be resumed pursuant to K.S.A. 1985 Supp. 22-2911, the defendant would have no obligation to appear in court on these charges. Absent a duty to appear, there would be no basis for a continuing bond. We believe this constitutes a modification that, upon the bond’s own terms, would render it null and void.
The State apparently argues that, at most, the bond conditions were merely suspended and would be automatically reinstated upon the defendant’s violation of the terms of the diversion agreement. We disagree.
Assuming, however, that the defendant’s bond was continuing, and assuming further that the State established the element of forfeiture, it also must have proved that the forfeiture was willful. In State v. Rodgers, 225 Kan. 242, 247, 589 P.2d 981 (1979), the Kansas Supreme Court held:
“In a prosecution for aggravated failure to appear under K.S.A. 21-3814 the State is not required to notify the defendant of the forfeiture of the appearance bond as provided in K.S.A. 1977 Supp. 22-2807 in order to establish the element of willfulness in 21-3814. To establish willfulness it is sufficient if the State prove the defendant failed without just cause or excuse to surrender himself within thirty (30) days following the forfeiture of his appearance bond. When the State has introduced evidence that a defendant entered into a personal recognizance requiring his appearance in a court on a day certain, as in the present case, that he thereafter failed to appear, and that following the forfeiture of the appearance bond he failed to surrender himself within thirty (30) days thereafter a prima facie case of willfulness has been established by the State.”
In the present case, there was no day certain on which defendant was to appear in court. The case was indefinitely removed from the trial docket by operation of law upon execution of the diversion agreement.
The State argues that the terms of the diversion agreement expressly specified the consequence of breaching the agreement. Defendant knew he breached the agreement and knew that because of the breach his trial on the felony theft charge would be rescheduled. Under Rogers, the State contends defendant did not have to be notified of his bond forfeiture to willfully forfeit that bond.
Defendant’s diversion agreement provided:
“Should you violate any of the conditions of this supervision, the District Attorney may revoke or modify any conditions of this diversion program, change the period of supervision, or ask the Court to reinstate this case on the trial docket for further prosecution. In the event of your violation of any of said conditions and prior to initiating any of the above actions, you will be furnished with notice, at your last known address as shown in our files from your most recent reporting document, specifying the conditions of your program which you have violated. The District Attorney may release you from supervision at any time.”
As noted in the stipulated facts, defendant violated the agreement by failing to report to the diversion office after two initial visits by moving out of state and not reporting a change of address.
In Clinkingbeard v. State, 6 Kan. App. 2d 716, 717, 634 P.2d 159 (1981), the court discussed the definition of willful conduct and stated: ‘“Willful conduct’ is statutorily defined as ‘conduct that is purposeful and intentional and not accidental. As used in this code, the terms “knowing,” “intentional,” “purposeful,” and “on purpose” are included within the term “willful.”’ K.S.A. 21-3201(2).”
Despite the State’s contention that defendant knew proceedings would be reinstated, the language of the diversion agreement gives the district attorney three options once a violation occurs. The district attorney may revoke or modify any condi tions of the diversion. He may change the period of supervision, or ask the court to reinstate the case. Although defendant did knowingly breach his diversion agreement it was not clear that criminal proceedings would definitely be reinstated. Thus, defendant had no actual notice that his case had been reset on a date certain, what that date certain was, or that his bond was forfeited when he failed to appear on that date, December 5, 1983. The State cites no authority for equating the willful violation of a diversion agreement with the forfeiture of an appeal bond. Rodgers may be distinguished in that, once Chappell entered into the diversion agreement, he did not know the specific date on which he was supposed to appear. Under Rodgers, a defendant does not need to receive notice of his bond forfeiture to establish willful failure to appear, but defendant should receive notice that his case is set for trial and what that trial date is before he can willfully forfeit the bond by not appearing. In light of the fact that defendant could not have definitely known that his case had been reinstated and on what date it was reset, defendant did not willfully forfeit his bond.
Reversed. | [
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Chipman, J.:
This is an appeal by Hartford Accident and Indemnity Company (Hartford) from a judgment interpreting the provisions of an insurance contract. Defendant Robert C. Adkins installed a wood-burning stove in the home of plaintiff Hilda Nash. Some time after completion of his work, Nash’s home was damaged by fire. Nash initiated this lawsuit by filing a petition alleging defective workmanship by Adkins caused the fire. Hartford, Adkins’ insurance carrier, denied coverage and refused to defend. Adkins joined Hartford claiming coverage for the loss. The trial court granted defendant Adkins’ motion for summary judgment on the coverage issue. From this ruling Hartford appeals.
The sole question on appeal is whether “completed operations” coverage existed for the fire damage under the Hartford policy.
The Hartford policy, on its first page, provides that “Insurance is afforded by the Coverage Parts forming a part hereof, subject to such limits of liability as are stated therein and subject to all the terms of the policy having reference thereto.” The schedules and forms which are part of the policy provide bodily injury and property damage coverage for two separate risk classifications corresponding to jobs performed by Adkins. Form L-3503-1T specifies both risk classifications and refers to extension schedule L-3125. This extension schedule spells out the two rating classifications: carpentry and building or premises. The building or premises classification specifically includes completed operations but no such wording appears under the carpentry classification.
Form L-3503-1T also refers to certain endorsements forming part of the policy. Endorsement L-3014-0, entitled Exclusion Completed Operations and Products Hazards, provides in part that:
“It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury . . . included within the Completed Operations Hazard . . . .”
The term “completed operations hazard” is specifically defined in the policy as follows:
“When used in this policy (including endorsements forming a part hereof):
‘Completed, operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
“(1) When all operations to be performed by or on behalf of the named insured under the contract have been completed,
“(2) When all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
“(3) When the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise completed, shall be deemed complete.”
The forms and endorsements, read in conjunction with the definitions of completed operations hazard, establish that bodily injury and property damage covered for completed operations is excluded from the carpentry classification, but specifically included in the custodial classification.
Completed operations coverage for the carpentry classification was available. However, at the time the Hartford policy was obtained as a replacement for an American States Insurance Company policy, Adkins requested no additional coverage under the carpentry classification. It should be noted that Adkins, in his previous policy with American States Insurance Company, was advised of the availability of completed operations coverage but did not avail himself of such coverage.
Adkins argues that the policy is ambiguous because it contains the terms “completed operations hazard,” “operations coverage,” and “including completed operations.” He contends that the use of these terms would lead a reasonable person to conclude that the policy provides completed operations coverage for both risk classifications. His focus upon these terms excludes a consideration of the policy as a whole. Scott v. Keener, 212 Kan. 719, 723, 512 P.2d 346 (1973). The above terms appear in the definitional section of the policy as well as on the form which excludes completed operations coverage for carpentry work.
Adkins also contends that ambiguity is created because the completed operations coverage was not excluded on the form which indicates other coverage exclusions. However, that same form refers the reader to Form L-3014-0 which does exclude completed operations from the carpentry classification.
Finally, Adkins contends that the “policy sheet” covers completed operations. While the “certificate of insurance” provides that “products/completed operations hazard [is] included,” it does not confer completed operations coverage for carpentry:
“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED BELOW.”
The construction of an insurance contract is a matter of law to be determined by the courts and if the facts are uncontroverted, then the court determines the policy’s coverage. Goforth v. Franklin Life Ins. Co., 202 Kan. 413, Syl. ¶ 1, 449 P.2d 477 (1969). If the contract of insurance is clear and unambiguous, the words “are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. [Citations omitted.]” Goforth, 202 Kan. at 417.
To be ambiguous, the contract must contain provisions of doubtful or conflicting meaning. Ambiguity “does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. [Citations omitted.]” Clark v. Prudential Ins. Co., 204 Kan. 487, 491, 464 P.2d 253 (1970). Ambiguity is not to be derived from or created by the fragmentation of the contract. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 180, 660 P.2d 1374 (1983). The terms of the insurance contract must be considered as a whole. Scott v. Keener, 212 Kan. at 723.
Upon reading the contract as a whole together with its endorsements, one is not “genuinely uncertain” whether the contract provides completed operations coverage for the carpentry classification. We hold that the policy is unambiguous and provides precisely the coverage Adkins requested and paid for. It does not provide completed operations coverage for Adkins’ carpentry business.
The judgment of the trial court is reversed and remanded for entry of judgment in accordance with this opinion.
Reversed and remanded. | [
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Abbott, C.J.:
This is a direct appeal by Joseph C. Simpson from his convictions for reckless driving (K.S.A. 1986 Supp. 8-1566) and passing in a no-passing zone (K.S.A. 8-1520[b]). Simpson was performing his duty as a police officer for the City of St. George, Kansas, and was pursuing a traffic offender with his siren and flashing lights activated when the incident leading to the traffic citations occurred.
Simpson was headed west on old highway 24 pursuing a vehicle that was attempting to elude him. It was dark and the road was narrow and hilly with soft shoulders. Simpson was familiar with the sight distances and all other pertinent aspects of the road he was traveling.
The fleeing vehicle passed two westbound cars. Simpson also attempted to pass the two westbound cars, which were approxi mately I-V2 to 2 car lengths apart. In doing so, he pulled into the eastbound lane of traffic, which was clearly marked, “No passing.” After he passed the first westbound car near the crest of a hill, a pickup appeared in the eastbound lane of traffic traveling east. Simpson then attempted to go left and the police car was struck nearly broadside after it left the highway.
Simpson conceded at trial that a driver of an ordinary car would be guilty of reckless driving and passing in a no-passing zone. We agree. Simpson contends that as a driver of an authorized emergency vehicle, his conduct was privileged under K.S.A. 8-1506 and Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983). However, we agree with the trial judge that Thornton v. Shore is not controlling. Thornton involved consolidated wrongful death actions arising from an accident caused by the defendant, Donald Bender, who ran a stop sign while trying to elude a police officer (defendant Shore). The collision marked the end of a high-speed chase in the City of Lawrence, in which Officer Shore was pursuing Bender for traffic violations. Officer Shore’s car was not physically involved in the collision. The trial court found that Shore was in compliance with K.S.A. 8-1506 and therefore immune from liability. The trial court granted summary judgment in favor of Shore.
The appellants in Thornton contended that under K.S.A. 8-1506(d) the officer still had a duty, even with the statutory privileges, to drive with due regard for the safety of others, and that the officer violated this duty by continuing to chase the traffic violator when his extreme recklessness became apparent. The Supreme Court disagreed.
After stating that “[t]he privileges and immunities granted to police officers under K.S.A. 8-1506 would indeed be hollow if the test of due care . . . were extended to include the acts of the fleeing motorist whom the officer is trying to apprehend,” 233 Kan. at 745, the court then noted a series of outside cases which held that law enforcement officers are not liable for the acts of a fleeing motorist. The Kansas Supreme Court adopted the majority view, finding:
“[T]he ‘due care’ requirement of K.S.A. 8-1506(d) applies only to the police officer’s physical operation of his own vehicle and not to the decision to chase or continue to chase a law violator. If the officer is in compliance with the statute in the operation of his own vehicle, he is entitled to the privileges and immunities afforded by the statute and is not vicariously liable or responsible for the reckless or negligent acts of the law violator he is pursuing. The officer is not the insurer of the fleeing law violator. The officer in such circumstances has breached no duty owed to persons injured by the fleeing violator’s own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons.” (Emphasis supplied.) Thornton v. Shore, 233 Kan. at 753.
The holding in Thornton is a policy determination that law enforcement officers should not be held vicariously liable for the acts of fleeing motorists. The issue in the present case does not concern the vicarious liability of Officer Simpson for the negligent acts of another. Instead, the question presented is whether the trial court erred in finding that, even with the privileges contained in K.S.A. 8-1506, the defendant was guilty beyond a reasonable doubt of reckless driving and passing in a no-passing zone.
A law enforcement officer has the right to pursue a violator of the law in the manner set forth in K.S.A. 8-1506, which provides:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this article;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions; and
“(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.” (Emphasis supplied.)
Simpson contends that the trial court held him to the same test as an ordinary person, i.e., that the trial court did not consider the privileges and immunities afforded him under K.S.A. 8-1506. The trial court properly considered 8-1506 and this is evident thoroughout the record.
K.S.A. 8-1506 does not grant absolute immunity. It grants certain privileges to emergency vehicle drivers which are not available to the ordinary motorist. For example, an ordinary motorist must come to a complete stop at a red light or at a stop sign. The ordinary motorist does not have an option to drive through these traffic signals so long as he does so at a speed necessary for safe operation. Under 8-1506, the driver of an authorized emergency vehicle may commit such acts without committing traffic offenses. However, all the privileges enumerated in that statute are conditioned upon the privileged act being committed only after the safety of others has been taken into consideration. This condition is reemphasized in 8-1506(d).
The State argues that passing in a no-passing zone is not one of the five enumerated privileges in 8-1506(b). The wording of subsection 8-1506(a) that the driver of an authorized emergency vehicle “may exercise the privileges set forth in this section” is conducive to an argument that the privileges were meant to be limited to those five.
This court, as was the legislature, is cognizant of the necessity for emergency vehicles in an urban area to be permitted to cross double yellow lines in order to move through traffic, particularly at intersections. Without this authority, emergency vehicles would by necessity be forced to move at the same pace ordinary traffic is moving. We are of the opinion the legislature intended 8-1506(b)(4) and (d) to allow an authorized emergency vehicle to pass another vehicle in a no-passing zone so long as such passing does not endanger the safety of others. Subparagraph (d) specifically provides that the driver of an authorized emergency vehicle is not protected from the consequences of reckless disregard for the safety of others.
The trial court refused to find that a law enforcement officer could never pass in a no-passing zone, only that, under the circumstances of this case, Simpson had no right to pass. Simpson was authorized, and the trial court so held, to pass another vehicle in the no-passing zone, so long as he did not endanger the safety of others in doing so. Simpson contends he had a right to rely on others obeying the law and yielding to him. In negligence law, that right extends only to the point where it becomes obvious that the other party is not going to yield. Here, there is no evidence that the two westbound vehicles and the oncoming car failed to yield to Simpson. In fact, the westbound cars were apparently attempting to get off the paved highway. The oncoming car had two choices: to proceed straight ahead or turn right off the highway. It chose the latter (i.e., yielded to Simpson) and a collision followed.
The crux of this case is that Simpson knowingly passed in a no-passing zone, after dark, on a highway with which he was familiar, and placed himself and the two cars he was passing in a situation that, if an eastbound car came over the crest of the hill, one or more of the four vehicles would be forced to leave the paved highway at a high rate of speed and drive onto a soft shoulder or into a ditch in the dark. An eastbound car did appear, a dangerous emergency faced four vehicles, and a collision occurred.
Under the facts of this case, there was no way for Simpson to pass in the no-passing zone and show due regard for the safety of all persons. He had to know the risk involved in passing at that point, and thus he knowingly and intentionally accepted the risk of endangering the safety of others. This amounts to a reckless disregard for the safety of others. The trial court used the proper standards, and the record contains substantial competent evidence to support the convictions.
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Parks, J.:
Defendant, Robert Eugene Jones, appeals from his jury conviction for impairing a security interest contrary to K.S.A. 21-3734(l)(c). We reverse.
In June 1982, defendant was the sole stockholder and operator of JoCo Motors, Inc., (JoCo) a Yamaha motorcycle dealership. All of JoCo’s motorcycles were ordered from Yamaha under a financing arrangement with the manufacturer. Under this arrangement, each motorcycle in JoCo’s inventory was covered by a security agreement which required JoCo to pay for the motorcycles shipped by Yamaha in accordance with the terms specified on the shipping invoice. These invoices stated that JoCo was to pay Yamaha for each motorcycle as it was sold or if the bike was not sold immediately, JoCo was to send payment to the manufacturer by a designated date, three or four months after the shipment was received. Although the dealership had been a going concern for over five years, by spring 1982, JoCo’s chronic undercapitalization and low cash flow, combined with high interest rates and depressed sales, spelled collapse for the corporation. The State presented testimony that by the time the dealership closed its doors, JoCo owed Yamaha in excess of $250,000 for motorcycles which were sold but the proceeds of which were never forwarded to the manufacturer.
The defendant was charged with impairing a security interest by failing to account to a secured party contrary to K.S.A. 21-3734(l)(c) on the theory that he was liable for the criminal acts he carried out in the name of the corporation, JoCo. K.S.A. 21-3207. Defendant admitted that JoCo owed Yamaha about $150,000 under the floor plan when it went out of business but denied any criminal intent to impair the security agreement. Defendant also challenged the constitutionality of K.S.A. 21-3734(l)(c) contending the statute is void for vagueness. Defendant was convicted and sentenced to imprisonment. He appeals.
Following oral argument, this court, on its own motion, questioned whether K.S.A. 21-3734(1)(c) violates Section 16 of the Bill of Rights of the Kansas Constitution. The parties were requested to brief this issue in accordance with the cautionary guidelines set forth in State v. Puckett, 230 Kan. 596, 601, 640 P.2d 1198 (1982). Thus, we shall first consider this point.
Section 16 of the Bill of Rights of the Kansas Constitution states that “[n]o person shall be imprisoned for debt, except in cases of fraud.” This constitutional provision means that the legislature may not enact a law imposing imprisonment for the mere nonperformance of a contract of indebtedness. See Haglund v. Bank, 100 Kan. 279, 284, 164 Pac. 167 (1917); In re Wheeler, Petitioner, 34 Kan. 96, 98, 8 Pac. 276 (1885). On the other hand, Section 16 permits imprisonment for debt when fraud is present because the offense then being punished is the fraud, not the indebtedness. Tatlow v. Bacon, 101 Kan. 26, 29, 165 Pac. 835 (1917). For example, in State v. Haremza, 213 Kan. 201, 209, 515 P.2d 1217 (1973), an allegation that the worthless check statute, K.S.A. 1971 Supp. 21-3707, unconstitutionally authorized imprisonment on a debt was rejected because the offense requires proof of an intent to defraud. The court stated that the law punishes a defendant because he commits fraud in passing the bad check and not because he fails to redeem his check. Haremza, 213 Kan. at 209. See State v. Yost, 232 Kan. 370, 374, 654 P.2d 458 (1982). Thus, a penal statute which essentially describes a failure to meet a civil contract of indebtedness as a crime punishable by imprisonment may violate Section 16 unless it requires proof of an intent to defraud.
K.S.A. 21-3734 has a long history in this state, its progeny having been enacted in the early years of this century. G.S. 1935, 58-315b (1939 Supp.); R.S. 1923, 58-318; L. 1911, ch. 226, § 1; L. 1901, ch. 105, §§ 1, 2. However, until 1965, all of the provisions describing conduct within a secured transaction as criminal in the manner of K.S.A. 21-3734 included the element of intent to defraud. Indeed, in State v. Miller, 74 Kan. 667, 670, 87 Pac. 723 (1906), the Court held that intent to defraud, was an essential element of the offense of selling mortgaged property without consent, and that a conviction based on instructions which failed to include this element had to be reversed. See State v. Wilfong, 114 Kan. 689, 690, 220 Pac. 250 (1923). When the various statutes were consolidated and amended to conform to the terminology of the newly enacted Uniform Commercial Code in 1965, the element of intent to defraud was deleted from two of the three resulting provisions. K.S.A. 1965 Supp. 21-652 (enacted L. 1965, ch. 342, § 2; repealed L. 1969, ch. 180, § 21-4701) used the language which was for the most part retained in our current law. This statute requires proof of intent to defraud in subsection (a) but does not require it in subsection (b) or (c). K.S.A. 21-3734 states as follows:
“(1) Impairing a security interest is:
(a) Damaging, destroying or concealing any personal property subject to a security interest with intent to defraud the secured party; or
(b) Selling, exchanging or otherwise disposing of any personal property subject to a security interest without the written consent of the secured party where such sale, exchange or other disposition is not authorized by the secured party under the terms of the security agreement; or
(c) Failure to account to the secured party for the proceeds of the sale, exchange or other disposition of any personal property subject to a security interest where such sale, exchange or other disposition is authorized and such accounting for proceeds is required by the secured party under the terms of the security agreement or otherwise.
(2) Impairing a security interest is a class E felony when the personal property subject to the security interest is of the value of fifty dollars ($50) or more and is subject to a security interest of fifty dollars ($50) or more. Impairment of security interest is a class A misdemeanor when the personal property subject to the security interest is of the value of less than fifty dollars ($50), or of the value of fifty dollars ($50) or more but subject to a security interest of less than fifty dollars ($50).”
Here, we are only concerned with subsection (c), but both subsections (b) and (c) depend upon the terms of the private contract of indebtedness between the creditor and debtor to define the criminal conduct. Neither of these provisions requires proof of a specific intent to defraud and this element is absent from the corresponding PIK instructions. PIK Crim. 2d 59.42 and 59.43. The stated purpose of these provisions is not the punishment of fraud but the protection of the creditor consistent with the terms of the Uniform Commercial Code. State v. Ferguson, 221 Kan. 103, 107, 558 P.2d 1092 (1976). In effect, the debtor who violates his security agreement by failing to account for proceeds of a sale of secured property is punished with criminal penalties for breaching the contract of secured indebtedness.
Relying on State v. Avery, 111 Kan. 588, 592, 207 Pac. 838 (1922), the State contends K.S.A. 21-3734(1)(c) does not authorize imprisonment for debt because the offense being punished is not nonpayment of debt but the failure to account for proceeds when such an accounting is required. However, the failure to account for proceeds is simply one way in which a contract of secured indebtedness may be broken. Section 16 prohibits the imprisonment of a debtor for breaching such a contract unless there is fraud present. Therefore, whether the breach of the contract of indebtedness occurs through a failure to account for proceeds or some other way, the debtor may only be imprisoned as a result of his breach if fraud is shown to have occurred.
In State v. Hocutt, 207 Neb. 689, 300 N.W.2d 198 (1981), the Nebraska Supreme Court considered the constitutionality of a provision prohibiting the unauthorized sale of secured property in much the same manner as K.S.A. 21-3734(1)(b). The court held the provision would on its face violate the Nebraska constitutional provision which is analogous to Section 16 of the Kansas Bill of Rights. However, the court concluded that the statute was saved from unconstitutionality because the requirement of proving fraudulent intent had been judicially engrafted onto the statute in 1920. Since a defendant could not be convicted of violating Neb. Rev. Stat. § 69-109 (1980 Supp.) absent proof of intent to defraud as a result of judicial precedent, the court found the statute was not unconstitutional.
There is no judicial history present in this state to save K.S.A. 21-3734(1)(c) in the manner of Hocutt. All of the cases including intent to defraud as an element of this crime took place before language to that effect was deleted from the statute in 1965. Therefore, we conclude K.S.A. 21-3734(1)(c) does not require proof of fraudulent intent and, in the absence of this element, the provision permits imprisonment for debt contrary to our constitution.
Accordingly, we hold that K.S.A. 21-3734(1)(c) violates Section 16 of the Bill of Rights of the Kansas Constitution and therefore is unconstitutional.
Reversed and remanded with directions to discharge the defendant. | [
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Abbott, C.J.:
The trial court granted summary judgment to the plaintiff, Joseph Mangiaracina. The defendants, Angelo Gutierrez and Linda Gutierrez, filed a motion for relief of judgment pursuant to K.S.A. 60-260(b) which was denied.
The defendants argue that the trial court erred in denying their motion for relief from judgment because the underlying summary judgment was void. Defendants contend the summary judgment was void because they were not given a notice of hearing or an opportunity to be heard on the motion pursuant to K.S.A. 60-256(c).
Supreme Court Rule 133, 235 Kan. cv, mandates that a written motion seeking a ruling on the merits of an action (such as a motion for summary judgment) must be accompanied by a short memorandum stating the reasons for the motion, if the reasons are not apparent in the motion, and any citations of authority which the judge should consider. The plaintiff correctly filed and served his motion for summary judgment with the accompanying memorandum. Supreme Court Rule 133 also mandates that, if the motion for summary judgment contained a request for oral argument or, if within five days after the adverse party is served with the motion, that party files a request for oral ar gument, no ruling shall be made until the court hears the requested oral argument. In the absence of any request for oral argument, the trial judge has two options. The trial judge “may set the matter for hearing or rule upon the motion forthwith and communicate the ruling to the parties.” Rule 133. (Emphasis supplied.)
The defendants did not respond to the plaintiff s motion nor request oral argument. Thus, they are deemed to have admitted the uncontroverted facts as set out by the plaintiff.
The trial court was justified in deciding the case without hearing oral argument and in granting summary judgment to the plaintiff. Bowen v. City of Kansas City, 231 Kan. 450, 646 P.2d 484 (1982). We believe the Bowen case to be dispositive on this issue and, thus, we need not discuss the federal cases cited by the parties. We do note that the defendants rely heavily on Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387 (5th Cir. 1980); Kibort v. Hampton, 538 F.2d 90 (5th Cir. 1976), and Enochs v. Sisson, 301 F.2d 125 (5th Cir. 1962). Those cases would appear of little, if any, value in light of Daniels v. Morris, 746 F.2d 271 (5th Cir. 1984), and Hamman v. Southwestern Gas Pipeline, Inc., 721 F.2d 140 (5th Cir. 1983). Daniels and Hamman are consistent with Bowen and are contrary to plaintiff's position in this case.
Defendants argue that Supreme Court Rule 141, 235 Kan. cx, cannot be used to circumvent the extraordinary procedural safeguards for pro se litigants. Defendants do not elaborate on what they consider extraordinary procedural safeguards. Apparently, defendants believe that those litigants who choose to represent themselves in civil actions should be held to a lesser standard regarding procedural law, and that opposing counsel and the trial court should take it upon themselves to inform pro se litigants of what is required of them under the law of procedure.
The rule that governs this case is simple. A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se. Thus, the trial court did not err in failing to consider the fact that defendants were pro se at the time they were served with the motion for summary judgment.
Defendants also argue the judgment is void. The judgment is not void. It is within the discretion of the trial judge whether to grant relief pursuant to 60-260(b)(4).
The defendants next argue that after the court determined the judgment was not void under 60-260(b)(4), it failed to consider the other grounds stated in their motion for relief. The court specifically found that the defendants had not established any ground for relief, including excusable neglect.
Our examination of the record convinces us that the trial judge did not abuse his discretion.
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Brazil, J.:
Mid-Century Insurance Company appeals the trial court’s judgment which held that an exclusion in the uninsured motorist (UM) coverage of its policy did not apply to the policy owner, Richard Klamm.
The parties stipulated to the facts and submitted only questions of law for the trial court’s decision. Their stipulations and the record together disclose the following pertinent facts.
Richard Klamm bought an automobile insurance policy from Mid-Century which covered his 1980 Oldsmobile Toronado. The policy included uninsured motorist coverage. On July 15, 1983, Klamm bought a motorcycle. Though he had purchased no insurance for the motorcycle, Klamm was riding it on a public street the next day when Larris Carter negligently drove his truck into Klamm. Only Carter’s negligence caused the accident but he had no liability insurance. Klamm suffered damages within the limits of the uninsured motorist coverage of his Mid-Century policy.
Mid-Century first argues that the trial court incorrectly concluded the term “a person” used in the uninsured motorist coverage exclusion was ambiguous and that it should be construed not to apply to Klamm.
Certain often-stated principles apply when construing insurance policies.
“The test to be applied in determining the intention of the parties to an insurance policy is not what the insurer intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean. Since an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, the insurer and not the insured must suffer. Thus, if the terms of an insurance policy are ambiguous or susceptible of more than one meaning, the meaning most favorable to the insured must prevail. [Citations omitted.]” Fancher v. Carson-Campbell, Inc., 216 Kan. 141, 145-46, 530 P.2d 1225 (1975).
See also Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 646, 512 P.2d 507 (1973) (same rules apply to uninsured motorist insurance). However, the rule that ambiguous language should be construed in favor of the insured “does not authorize a perversion of the language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. [Citation omitted.]” Girrens v. Farm Bureau Mut. Ins. Co., 238 Kan. 670, 675, 715 P.2d 389 (1986). Furthermore, “[r]egardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court. [Citation omitted.]” Hall v. Mullen, 234 Kan. 1031, 1035, 678 P.2d 169 (1984).
The pertinent language of the policy reads as follows:
“PART II - UNINSURED MOTORIST
“We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle or an underinsured motor vehicle.
“Additional Definitions Used In This Part Only
“As used in this Part:
“1. Insured person means:
a. You or a family member.
b. Any other person while occupying your insured car.
c. Any person for damages that person is entitled to recover because of bodily injury to you, a family member, or another occupant of your insured car.
But, no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission of the owner.
“2. Motor vehicle means a land motor vehicle or a trailer but does not mean a vehicle:
a. Operated on rails or crawler-treads.
b. Which is a farm type tractor or any equipment designed or modified for use principally off public roads while not on public roads.
c. Located for use as a residence or premises.
“Exclusions
“This coverage does not apply to bodily injury sustained by a person:
“1. While occupying a motor vehicle owned by . . . you ... for which insurance is not afforded under this policy.”
Mid-Century simply argues “a person” as used in the exclusion is clear and means anyone, including Klamm, occupying a vehicle Klamm owned but had not insured under Mid-Century’s policy.
Klamm raises several arguments to oppose Mid-Century’s claim the exclusion applies to him. He first notes that UM coverage is provided to three groups who are: 1) the named insured or a family member; 2) other persons while occupying the insured car; and 3) persons entitled to recover damages because of bodily injury to persons in either of the first two groups. Pointing to exclusions under the liability and personal injury protection portions of the policy which clearly do exclude the named insured, he argues Mid-Century knew how to exclude the named insured when that was its intent but failed to do so in this case. He adds that a reasonable person in his position would understand the exclusion did not apply to the named insured. Alternatively, he argues that a reasonable person would at least be confused by the exclusion and could believe it did not apply to the named insured. The rules of construction applied to insurance contracts, then, would require the policy to be construed to provide coverage in this situation.
We disagree. Klamm’s suggestion that the exclusion could reasonably be interpreted to refer only to the second and third groups is difficult to accept. The second group is certainly not granted coverage in the first place when occupying a motor vehicle not insured under the policy, so the exclusion would add nothing to the policy if it applied only to them. Likewise, we believe the third group’s coverage is also tied to the insured car and, therefore, the exclusion is not necessary to limit their coverage. A more reasonable approach is to assume the exclusion is in the policy for a purpose. That purpose is to exclude the named insured.
Klamm also advances an argument on appeal which the trial court rejected. He claims “a reasonable reading of the policy would cause one to conclude that there was a thirty (30) day grace period of coverage extended for a newly acquired vehicle to allow the insured to advise the carrier of its acquisition.” We disagree. Under the policy, “[y]our insured car means ... 2. Any additional private passenger car or utility car of which you acquire ownership during the policy period provided that: a. You notify us within 30 days of its acquisition . . . .” “Private passenger car” is defined as “a four wheel land motor vehicle.” “Utility car” is defined as “a land motor vehicle having at least four wheels.” (Emphasis added.) Thus, a reasonable reading discloses that a motorcycle cannot be an “insured car” under the policy even if Mid-Century is notified of its acquisition within thirty days.
Having determined that the exclusion applies to Klamm, we must next consider if it exceeds the scope of the exclusion authorized by K.S.A. 40-284(e)(l).
At the time Klamm had his accident, K.S.A. 40-284 read in pertinent part:
“(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered . . . with respect to any motor vehicle registered ... in this state, unless the policy contains ... a provision . . . for payment of part or all sums which the insured . . . shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury . . . sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle ....
“(e) Any insurer may provide for the exclusion ... of coverage when:
“(1) The insured is occupying an uninsured automobile owned or provided for the insured’s regular use.” (Emphasis added.)
Klamm argues: (1) Numerous cases hold that any provisions attempting to condition, limit, or dilute the unqualified UM coverage mandated by the statute are void, e.g., Barnett v. Crosby, 5 Kan. App. 2d 98, 99, 612 P.2d 1250, rev. denied 228 Kan. 806 (1980); (2) the claim that Klamm falls within the exclusion is an affirmative defense which Mid-Century has the burden to prove, Van Brunt, Executrix v. Jackson, 212 Kan. 621, 624, 512 P.2d 517 (1973); and (3) the 1981 amendments to K.S.A. 40-284 allows an exclusion for automobiles but not motorcycles.
As to his first argument, the cases he cites are all prior to the amendment of K.S.A. 40-284 in 1981, which clearly authorizes five numbered exclusions in subsection (e).
The second point is actually irrelevant where construction of a statute is involved, but it more properly may be said the exclusion should be strictly construed against the insurer because the statute is remedial legislation and insurance policies are construed against the insurer. See Patrons Mutual Ins. Ass'n v. Norwood, 231 Kan. 709, 714, 647 P.2d 1335 (1982).
Klamm’s third argument would have us reach the conclusion the legislature intended a rather anomalous result. Since K.S.A. 40-284(a) refers to “automobile liability insurance policy” and (e)(1) to “automobile,” the word “automobile” should probably be taken to refer to the same thing in both cases. By deciding it refers only to a four-wheel vehicle, the usual reference for “automobile,” we would reach this result: Motorcycle liability insurance policies need not include UM coverage, yet automobile liability policies, which may exclude coverage for an insured occupying an uninsured automobile, may not exclude UM coverage for an insured while occupying an uninsured motorcycle.
A more reasonable result can be reached, however, if “automobile” is construed in both places to refer to motor vehicles generally, including motorcycles. Then motorcycle as well as automobile policies must include UM coverage and insureds occupying uninsured motorcycles as well as automobiles may be excluded from UM coverage.
A similar apparent misuse of the phrase “automobile liability insurance policy” appears in the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., which was intended to provide for prompt compensation for injuries caused by motor vehicles. K.S.A. 40-3102. K.S.A. 1985 Supp. 40-3104(a) provides in pertinent part: “Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by such person, unless such motor vehicle is included under an approved self-insurance plan.” (Emphasis added.) Subsection (h) of the same statute provides certain penalties for failure to have insurance on a vehicle involved in an accident, but subsection (i) provides in part:
“The suspension requirements in subsection (h) shall not apply:
“(1) To the driver or owner if the owner had in effect at the time of the accident an automobile liability policy as required by K.S.A. 40-3107, and amendments thereto, with respect to the vehicle involved in the accident;
“(2) to the driver, if not the owner of the vehicle involved in the accident, if there was in effect at the time of the accident an automobile liability policy with respect to such driver’s driving of vehicles not owned by such driver.” (Emphasis added.)
K.S.A. 1985 Supp. 40-3107 states in part: “Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall: [contain certain provisions and coverages].” (Emphasis added.) As these sections show, when mandating certain coverages for insurance on motor vehicles, our legislature at times appears to use “automobile” and “motor vehicle” interchangeably.
This confusion may have resulted from the law which preceded KAIRA. Passed in 1957, this act used the phrase “motor vehicle liability policy” as a term of art to distinguish the same from an “automobile liability policy”; the former applied only to a policy which had been certified as proof of future financial responsibility while the latter merely exempted a driver or owner from furnishing security. Comment, The New Kansas Motor Vehicle Safety Responsibility Act, 6 Kan. L. Rev. 358, 366-67 (1958). That act was repealed when the KAIRA was passed. Whatever this distinction meant under the Motor Vehicle Safety Responsibility Act (MVSRA), we find no similar distinction made under the KAIRA. K.S.A. 40-284 was passed in L. 1968, ch. 273, § 1, so the MVSRA was still in effect and the legislature would have wanted to retain the distinction and therefore used “automobile liability insurance policy.” Unfortunately, this language survived the demise of the MVSRA, and appears to have insinuated itself into K.S.A. 40-284, which used the word “automobile” in the first exclusion under new subsec tion (e). As used in 40-284, then, “automobile” appears to refer not to four-wheeled vehicles only, but to all motor vehicles and was used this way because it was the most convenient substitute once the generic “motor vehicle” had been commandeered for special use under the MVSRA.
We conclude that “automobile” as used in K.S.A. 40-284 includes motorcycles.
The decision of the trial court is reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
T. J. Harrison brought an action before a justice of the peace, to recover from W. B. Raper and Lela Z. Raper the possession of a cow, alleging that she was of the value of $35, and was wrongfully detained by them, and that he was entitled to her immediate possession. An appeal was taken from the judgment of the justice to the district court, and a trial'in that court -with a jury resulted in a verdict in favor of Harrison. Harrison had rented a portion of a farm owned and operated by the plaintiffs in error. He claimed, .and offered testimony to show, that early in the year he borrowed $25 from them, to be paid from the proceeds of the crop, and told them that he would allow the cow in question to stand as security for its repayment. He further claimed that in their dealings he discharged the debt for which the cow was to stand as security, and that notwithstanding this, the plaintiffs in error had wrongfully taken the cow from his possession. The claim of the plaintiffs in error was, that they purchased the cow outright for $25, only agreeing that he might have the privilege of purchasing her back until the 1st of November following, by paying the amount of the purchase-money and the value of her use; but that the defendant never repurchased the cow, and therefore had neither ownership nor right of possession in her.
The only complaint made is of the charge of the court. One ground of error is the refusal of the court to charge that a demand by Harrison was essential to the maintenance of the action. It came out in the testimony of the plaintiffs in error that on one occasion when they went after the cow, Harrison told them- to take her. This, testimony, however, is wholly at variance with that of the defendant in error, and even with their own conduct. As a general rule, a demand is a prerequisite to an action of replevin where the possession is permissive; but a defendant may, by his conduct, obviate the necessity of such demand. If it clearly appears from the attitude and conduct of the defendant that a demand would not have affected the rights of the parties, as the issues are presented; and further, that the defendant would not have surrendered the property on demand, then proof of demand would have been fruitless and foolish, and the law will not require it. It is very obvious that the plaintiffs in error did not base their right to the possession of the cow on the permission alleged to have been given by Harrison in November. From all the testimony it appears quite improbable that any consent was given by him ; but however that may be, it is clear that they did not rely on the want of demand as a defense. Their attitude and conduct throughout the trial were inconsistent with the theory that they would have surrendered the cow on demand. They defended on the ground that Harrison made an absolute and unconditional sale of the cow in the spring, by which they acquired the right of possession. This was the issue which they made, and upon which they offered their testimony. Their defense was based on a claim wholly inconsistent with the rights and ownership of Harrison, and at no time did they indicate a willingness to yield possession if the demand had been made. Having placed their defense on title in themselves, and not on the alleged consent of Harrison, and it being manifest that demand would have been vain and unavailing, they cannot now insist upon a want of demand for their failure to surrender the property; and therefore the refusal of the court to charge that a demand was essential to the maintenance of the action, was not erroneous. (Smith v. McLean, 24 Iowa, 322; Newell v. Newell, 34 Miss. 385; Wells on Replevin, §374.)
The fifth instruction, which is the subject of criticism, was :
“I further instruct you that if you find from the evidence that the plaintiff delivered the possession of this property to the defendants for the purpose of securing the repayment of §25, this is a valid pledge; but there can be no pledge without a delivery of the possession of the property, and the question whether this property was delivered by the plaintiff to the defendants, or either of them, is a question of fact for you to find from the evidence.”
The objection is to the declaration that possession is essential to the validity of the pledge. This objection is groundless. There is a marked difference between a mortgage and a pledge, but counsel for plaintiffs in error apparently confounds them. A pledge is defined to be a deposit of personal property as security for a debt, to be kept by the creditor until default, or until the debt i& discharged. A mortgage of personal property is good if the mortgagor retains possession, but the authorities all agree that to constitute a pledge there must be an actual delivery of possession to the pledgee, and to preserve his pledge he must retain possession. (Jones on Pledges, § 23, and cases cited.)
We have examined the other objections to the charge, including the supposed assumption of fact by the court, and find nothing so misleading or erroneous as to require a reversal. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced in the district court of McPherson county, on the 4th day of September, 1883, by Eberhardt & Sudendorf, to enforce a mechanics’ or material-lien for lumber furnished to S. P. Carlton and W. H. Jamison, on a contract, and used in the erection, altering and repairing of a mill building on lots 35, 37, 39, 75, 77, and 79, in the city of Lindsborg. The amount claimed was $781.82, with interest from August 23,1882. The petition alleges that the plaintiffs below were “ partners under the firm-name of Eberhardt & Sudendorf,” and a copy of the lien filed September 21, 1882, with all the indorsements thereon, is set up in the petition. The plaintiffs in error were made defendants in the action, and filed an answer verified by affidavit, in which they deny “each and every allegation, averment and statement contained in the plaintiffs’ petition.” Among the averments of the plaintiffs’ petition are:
“ First: That the said plaintiffs are, and at the several times hereinafter stated were, partners under the firm-name of Eberhardt & Sudendorf. Third: That the said plaintiffs, intend ing to avail themselves of the benefits of the laws of the state of Kansas, securing liens to mechanics and others, and to perfect a lien on said premises hereinbefore described, as a security for the payment of their claim for lumber and other material furnished and used as hereinbefore set out, did, on the 21st day of September, 1882, file with the clerk of the district court of McPherson county, in his office, their claim, containing a true statement of their demands against the defendants, W. H. Jamison and S. P. Carlton, after deducting all credits and offsets, with the names of the owners of the premises whereon said building, appurtenances and. improvements have been erected, altered, and repaired; also, a description of the property to be charged with said lien, verified by the affidavit of C. Eberhardt, one of the plaintiffs, a copy of which statement with all the indorsements thereon is hereunto attached and filed herewith, marked ‘ Exhibit A/ and made a part of the petition.”
I. The first question presented is, what was put in issue by the averments of this petition, and the verified answer of Hayner & Co.? Section 108 of the code provides:
“In all actions, allegations of- the execution of written instruments, and indorsements thereon, of the existence of a corporation or partnership, or of any appointment of authority, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent, or attorney.”
One of the issues made by the pleadings was the existence of the partnership of Eberhardt & Sudendorf, which they asserted. Its existence was denied by the sworn answer of the plaintiffs in error.
Another issue made by the pleadings was the execution of the material-lien, asserted by the plaintiffs below in the third paragraph of their petition. They asserted that they had executed a mechanics’ lien; and its execution was denied under .oath. There can be no question but that the lien set forth is a written instrument within the meaning of § 108 of the code. In Ferguson v. Scott, 8 Kas. 376, a sheriff’s bond is held to be such an instrument. In Gulf Rld. Co. v. Wilson, 10 Kas. 112, a bill of lading is within the statute. In Reed v. Arnold, 10 Kas. 102, a note and mortgage is considered within. In School District v. Carter, 11 Kas. 445, the section is applied to a school order. In Washington v. Hobart, 17 Kas. 275, a promissory note is considered within the section. In McVay v. English, 30 Kas. 368, it is said that a chattel mortgage is included. In Montgomery v. Road, 34 Kas. 122, a real-estate mortgage is within the operation of the section.
The existence of the partnership and the execution of the lien were in issue, and evidence ought to have been offered tending to prove the partnership, and the execution of the lien; and as there was proof of neither, the demurrer of the plaintiffs in error to the evidence ought to have been sustained. (Savings Association v. Barber, 35 Kas. 488.)
II. Knowlton & Dolan became parties to the action by leave of the court, and filed an answer and cross-petition by which they claimed a machinery-lien on lots 35, 37, 39, 75, 77,79, 81,83, and 85. They furnished machinery and fixtures used in the mill, of the value of $2,561.40, at divers dates from November 1, 1881, up to and including March 4,1883. It is a fair statement of the evidence to say that the machinery furnished by Knowlton & Dolan was all delivered and set up about the last of November, 1881. On the 4th of March, 1883, they sent an employé of the house to finish a purifier. On the 20th day of October, 1881, W. H. Jamison, then the owner of the mill, ordered certain machinery from Knowlton & Dolan by written order, in which it is stated:
“All deferred payments to draw 8 per cent, interest per annum from February 1st, 1882; the title to the above-specified machinery remains and is to be in Knowlton & Dolan until the same is fully paid for; and as security for the payment of the above machinery, I agree to execute a mortgage on my mill building, and machinery contained therein, and keep the same insured in some good and responsible company in an amount equal to what is due, and the same to be paid to Knowlton & Dolan in case of fire, as their interest may appear.
(Signed) W. H. Jamison.”
“We accept the above offer.
(Signed) Knowlton & Dolan.”
In April, 1882, W. H. Jamison sold the mill property to S. P. Carlton, and on May 22d, 1882, Knowlton & Dolan took Carlton’s notes for the amount of the machinery claim.
J.E.Hayner & Co. had a mortgage covering lots 35,37,39, 75, 77, 79, 81, and 83, executed by S. P. Carlton to them,.on the 11th day of January, 1883, to secure a preexisting debt of $4,000, which Carlton owed J. E.Hayner & Co. for “money collected on goods sold.” This indebtedness grew out of busi ness transactions entirely separate from the mill. This mortgage of Carlton to Hayner & Co. was recorded in McPherson county on the 13th day of January, 1883. The written promise of Jamison to Knowlton & Dolan, to execute a mortgage to them, was not recorded. The jury found that, at the time the mortgage from Carlton to Hayner & Co. was executed and recorded, Hayner & Co. had no notice of the agreement of Jamison to execute a mortgage to Knowlton & Dolan on the mill property. This state of facts raises the question of seniority of liens, as between the-agreement of Jamison to execute a mortgage to Knowlton & Dolan and the mortgage executed and recorded by Carlton to J. E. Hayner & Co. to secure a preexisting indebtedness. In matters of this kind, there is always an equitable assumption that whatever is agreed to be done is to be considered as accomplished; and hence the agreement of Jamison to execute and deliver a mortgage on the mill property to Knowlton & Dolan is to be given the same legal effect in the determination of their rights in this controversy as if the mortgage had been executed. The mortgage to Hayner & Co. having been recorded, and the mortgage to Knowlton & Dolan not having been recorded, and Hayner & Co. having no notice of it, ordinarily their mortgage takes precedence as a lien. But it is contended that the fact that the mortgage of Hayner & Co. was to secure a preexisting indebtedness makes it inferior in lien to that of Knowlton & Dolan, because theirs is first in time, and represents a superior equity in the property bound by the liens of both instruments-Conceding all that is claimed in this respect, that, by the rules of equity as usually administered, a mortgage for purchase-money, or as security for the payment of material furnished in the construction, is a superior equity to one given to secure a preexisting debt, and yet the proper solution of the question here depends upon the construction and effect of the recording acts of the legislature of this state. Sections 19 and 20, of the act regulating the conveyance of real estate, read as follows:
“Sec. 19. Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved, or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated.
“ Sec. 20. Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.”
The evident purpose of these two sections of the statutes is so plainly expressed by the legislature that there is no room for construction, and under any known rule of interpretation there are no exceptions to its operation but such as are therein created, by notice of the existence of a prior mortgage, and probably such notice as possession by some other person than the mortgagor might impart. All outstanding equities of which the mortgagee had no notice at the time of the execution and delivery of the mortgage, are rendered subordinate to its lien by the act of recording. This statute, with some variation of phraseology, has been in force ever since the third year of our territorial existence, and has resulted in a plain, easy and practical method by which title to land and written instruments affecting real estate can be determined by men of ordinary intelligence in almost every case, with that reasonable certainty that is so much to be desired. To hold now that the lien of a recorded mortgage should be postponed in favor of an unrecorded one, for the sole reason that the consideration of the recorded instrument was an antecedent debt, would not only antagonize the policy of the statute, but would misinterpret the plain language by which that policy is expressed. It is a wise state policy that sweeps away the accumulated cobwebs of an obsolete system, that hang about the muniments and are entwined around the chains of the titles to real estate within its borders, and adopts a plain, easily understood, .and perfectly just rule of public registration, founded upon the maxim, “First in time, first in right,” qualified by notice of the existence of other liens, and the rights of a party in possession. (Jackson v. Reid, 30 Kas. 10; Lewis v. Kirk, 28 id. 497.) So the real question is, which of these two mortgages was first recorded without notice of the existence of the other? The jury found that the mortgage, of Hayner & Co. was duly recorded, and that they had no notice of the mortgage of Knowlton & Dolan.
III. Another question discussed by counsel for plaintiffs in error is the validity of the mechanics’ or material-lien claimed by Knowlton & Dolan. As we gather and understand the facts disclosed by the record, they are as follows: The machinery for which the lien was claimed was furnished by Knowlton & Dolan to Jamison, probably with the knowledge and acquiescence of Carlton, about the last of the year 1881. It was certainly furnished and put up by the 1st of February, 1882, for on that date the mill had commenced running and doing business, and it was practically completed. As under the express terms of the statute, the lien for machinery and fixtures must be filed within four months after the furnishing or putting up of the machinery and fixtures, it was too late. (Bashor v. Nordyke, 25 Kas. 222.) But it is contended that the subsequent action of Knowlton & Dolan sometime in the month of May, 1883, by sending one of their employés to the mill at Lindsborg to repair the purifiers, and in repairing them furnished some new or additional fixtures, had the effect to extend the time within which they could file their lien to four months after this work was done. There is another pretext for this assumption, growing out of some evidence tending to show that at the time of the purchase of this machinery, in November, 1881, by Jamison, from Knowlton & Dolan, they had made a guaranty as to the perfection of the machinery,, and its entire adaptation to the work designed, and that this work done and the material furnished in May, 1883, were in pursuance of that guaranty, and had the effect to extend the time of the putting up to that date. We do not think so. If by the terms of the contract of purchase the machinery was to be furnished in separate or detached parcels, at stipulated times, the furnishing would not be complete until the delivery of the whole, and the putting up could not be done until all was de livered; and probably the time within which a material-lien could be filed would be reckoned from the date of the delivery and putting up of the last portion; But the evidence in the case does not justify any such conclusion. The fair conclusion to be given all the facts bearing upon this question is, that the machinery was furnished in the latter part of the year 1881, and was put in the mill certainly before the 10th of February, 1882, because it was run at that time, and could not have been running if the machinery had not been put in. The subsequent tinkering in May, 1883, ought not to be regarded as fixing the time within which the lien could be filed. We are in great doubt as to when this lien was filed; there is no positive statement in the record regarding it, and there is no indorsement of the clerk showing the date of filing; and as the case will have to be reversed as to Eberhardt & Sudendorf, and as to Knowlton & Dolan, we shall not undertake to determine when it was filed.
IV. E. Jerritt was made a party defendant in the original action, as well as in the petition in error in this court. He answered to the original action, setting up a mortgage for $4,000 on lots 35, 37, and 39, covered by the mill property, given to him by S. P. Carlton, then the owner, on the 17th of May, 1882. The court below held this to be the second lien on the mill property, Eberhardt & Sudendorf being first, Knowlton & Dolan being third, and J. E. Hayner & Co. the fourth. Counsel for Jerritt filed a brief, and insists that the question as between him and Eberhardt & Sudendorf be determined here. While all exceptions are noted in favor of Jerritt, he does not join in the petition in error, and it is doubtful whether, under such a condition of the record, we can consider such questions. Nor does it make any practical difference so far as he is concerned, for if on the new trial which we grant the plaintiffs in error the facts do not justify the lien of Eberhardt & Sudendorf as against the plaintiffs in error, the mortgage of Jerritt would be the first lien, unless it is defeated by some evidence that was not offered or contained in the record of the case as it now stands.
It is recommended that as between the plaintiffs in error, and Eberhardt & Sudendorf, and Knowlton & Dolan, the case be remanded to the district court, with instructions to sustain their motion for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The letters contained in the findings embody a definite contract to sell the land, and we think the court rightly held it enforceable. The correspondence be tween Hollis the owner and Burgess the proposed purchaser was carried on through one Marsh, who to a certain extent acted for each. The letters of Hollis áddressed to Marsh relating to the land were intended for, and were communicated to, Burgess, and Marsh acted for Burgess in writing and transmitting his replies to the proposals made by Hollis.' This was sufficient. “ It is not essential that the letter should be addressed by one of the contracting parties to the other, since the statute of frauds is only concerned with the evidence by which an agreement is to be established.” (Pomeroy on Contracts, § 84.) In the correspondence Hollis made a definite ProPosal of the terms upon which he would sell, and Burgess made an unqualified acceptance, and the letters considered together embrace all the essential elements of a completed contract. It is true that the word except was used in one instance instead of accept, but the connection in which the term was used made it manifest that it was intended to express an acceptance of the proposal. The misspelling of the word did not, and could not, mislead; and in fact the letters themselves show that Hollis understood and treated the term as an expression of assent.
The land which formed the subject of the contract was described in the letters as “the Snow farm,” and it is objected that the description is to® uncertain. The general doctrine regarding the certainty of description required under the statute of frauds, contended for by counsel for plaintiffs in error, is not questioned. It is not essential, however, that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so dethat courj; cari) wj^h the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough. (Fry on Specific Performance, § 209; Pomeroy on Contracts, § 90.) The property in controversy was commonly designated as the “Snow farm.” It was so known and spoken of by all the parties at the time of the negotiations, as well as before and since that time. The description could be connected with the land without difficulty, and no doubt or dispute could arise regarding either its location or extent. Other objections for uncertainty are made to the mortgage which Burgess was to assume, and the stock which he was to keep for Hollis from March 1 to July 1 of that year. The plaintiffs in error inquire, What mortgage and what stock were intended ? The correspondence .clearly denotes that the mortgage .referred to was a $600 mortgage on the land, and from anything that appears in the record it was the only mortgage existing against it. This mortgage Burgess unconditionally assumed, and in doing so assumed the payment of all the debt which it represented and secured. It was shown and found at the trial that the land was subject to a $600 mortgage which had been duly executed upon it prior to the date of the contract, and that the mortgage at that time remained due and wholly unpaid. In respect to the stock, they are referred to throughout the correspondence as those belonging to Hollis, and which were being wintered in that locality. In one of the letters written by Hollis during the negotiations, and which contained a proposal to Burgess, the stock which he desired to have cared for are alluded to as all that he had left there. On the whole, we think that the identity of the stock intended was sufficiently definite.
All the Justices concurring.
A final objection on that ground was, that the deed was to be placed in the “F. N. bank,” of Clay Center. From the letters there can be no doubt but that the First National bank of Clay Center was the one referred to. Besides, the person or bank through whom, or the method by which, the deed should be sent to Burgess, can scarcely be regarded as an essential or substantive feature of the contract; and only such need to appear on the face of the writing required by the statute. We are of opinion that the letters stated the parties to the agreement, the subject of sale, and the terms of sale, with such certainty as to furnish evidence of a complete agreement. But if they failed to meet the requirements of the statute, Burgess must still prevail. It appears that after the contract was made he immediately went into possession of the land, and he had made lasting and valuable improvements thereon before he learned of the attempted repudiation of the contract by Hollis. The possession was taken and the improvements made in pursuance of the agreement; and in addition to this, he made a partial payment of $100 to'the agent of Hollis. These acts were performed on the faith of the agreement that had been made, and constituted such a part performance as would take the case out of the statute of frauds. (Edwards v. Fry, 9 Kas. 417.) Having complied with all the conditions of the contract, Burgess is entitled to a specific performance. The judgment rendered, however, must be modified in one particular. The contract was made by Hollis without his wife joining him in it, and only the contract made can be enforced. The inchoate interest of the wife was not included in the agreement, and the judgment should be so entered as to protect that interest. (Gray v. Crockett, 35 Kas. 66, 686.) When so modified, the judgment will be affirmed. | [
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Opinion by
Clogston, C.:
At the trial the parties entered into the following stipulation:
“ It is hereby stipulated and agreed by and between the parties hereto, that if the names of the 332 persons which appear on ‘Exhibits CC andDD,’ (to wit, 278 on ‘Exhibit CC’ and 54 on ‘ Exhibit DD,’) annexed to and made a part of the plaintiff’s second amended petition, or amendment to plaintiff’s original petition, and which names, it is agreed, appeared on the petition calling an election to relocate the county seat from luka to Pratt, in said county, and which names also appear on the petition in evidence, praying a relocation of the county seat from luka to the city of Saratoga, in said county, are retained and counted on the petition praying for a relocation of said county seat from the town of luka to the said city of Pratt, then the said Pratt petition did and does contain three-fifths of the legal electors of Pratt county, as appeared, and now appear, on the assessment rolls of the several township and city assessors of said county at the last assessment before said petition was presented to the board of county commissioners in the year 1885, and was and is a legal petition. But if said 332 names mentioned in said exhibits, which are on said petitions, are stricken off of said Pratt petition, and not counted thereon by reason of the following clause, which appears in said Saratoga petition, to wit, ‘We further petition your honorable board to erase and strike off our names from any and all petitions coming before your board other than this one petition praying a removal of said county seat to any place, hereby revoking any and all petitions on this subject heretofore signed by us,’ then the petition praying for a relocation of the county seat from the town of luka to the city of Pratt did not, and does not, without said names, contain three-fifths of the legal electors, as appears on the several assessment rolls of the several township and city assessors of said county, next before the presentation of said petition to said board of county commissioners, in the year 1885, and was not and is not a legal petition.”
This stipulation eliminates all questions of fact, except one: Did the Pratt petition contain the requisite number of names to authorize the county commissioners to order the election ? Plaintiff below gave in evidence the Saratoga petition, which, when compared with the Pratt petition, showed that 332 petitioners had signed their names on both petitions. The Saratoga petition was dated August 19th, and the Pratt petition was filed with the board on or before August 13th. In the absence of other proof, a petition will be presumed to have been signed at or after its date. This establishes the fact that the Saratoga petition was signed last; therefore the request therein contained was the last expression of the petitioners to the county commissioners. The defendants, to destroy the effect of the request contained in the petition, to have their names taken off from all other petitions relating to the removal of the county seat, attempted to show that the Saratoga petition was not presented to the board of commissioners, and that at the time of calling the election they did not know that that petition, presented to the board, contained that request. This claim, if true, would have been a complete answer, but at the trial it was claimed by the plaintiff that the Saratoga petition was presented to the board while in session as a board of canvassers, by Mr. Whitelaw, representing the Saratoga petition, and that he read the petition to the board and urged it'to take action thereon. This was established by some four witnesses, and, on the part of the defendants, denied by the board of county commissioners, county clerk, and several others. This then became a disputed question, and was submitted to the court, which found for the plaintiff. This settles this question here, for where there was evidence offered tending to sustain the finding of the court, it will not be disturbed here. It is not for this court to again weigh the evidence. It may be that on this question the preponderance -was with the defendants, but the trial court had better opportunities of learning the truth, as the witnesses were before the court, and the appearance and demeanor of witnesses on the stand may be such that greater weight should be given some witnesses than others.
Again, to avoid the effect of the request contained in the petition, the defendants produced John Stewart as a witness, and asked him the following questions:
“ I will ask you if you signed a request to have your name taken off the Pratt petition at any time.
“State if it was represented to you at the time you signed the Saratoga petition that it also contained a request asking your name to be taken off the Pratt petition.”
Which questions were objected to by the plaintiff as being immaterial, and the objections were by the court sustained, and defendants excepted. Defendants also called as a witness, Alfred Fox, and propounded to him the following questions:
“Did you ever request the county commissioners to take your name from the Pratt Center petition, or authorize anyone to make that request for you?
“Did your ever at- any time sign the Saratoga petition that contained a written request to have the county commissioners strike your name from the Pratt City petition ?
“ If you ever authorized the county commissioners in writing, or authorized them to strike your name from the Pratt City petition, or authorized any other person to do so for you, you may state when it was.”
Which questions were objected to, and the objections were sustained by the court; to which the defendants excepted. Defendants then offered to prove by said witness and 331 others, the following:
“The defendants offer to prove by Alfred Fox and 331 others, whose names appear on exhibits ‘CC’ and ‘ DD,’ attached to plaintiff’s second amended petition, the following-facts, viz.: That they did not know at the time they signed the Saratoga petition, or at any time on or before September 1, 1885, that the Saratoga petition contained the words following, to wit: ‘We further petition your honorable board to erase and strike off our names from any and all petitions coming before your board, other than this one petition, praying for the removal of said county seat to any place, hereby revoking any and all petitions on this subject heretofore signed by us,’ or that said petition contained words to the same effect; and that they did not request the commissioners, or board of county commissioners, in writing or otherwise, to strike their names from the Pratt Center petition, or authorize any other person to do so for them.”
Plaintiff objected to the introduction of this evidence, for the reason that it was incompetent, irrelevant, and immaterial, and the court sustained the objection. The court in sustaining said objection stated to the defendants as follows:
“The court does not refuse to allow the defendants to prove any conversation had, or anything done, in relation to the Sara-toga petition between these witnesses and the persons who represented the petition; nor does the court refuse to allow any witness to testify regarding any signature on the Saratoga petition which purports to be the signature of the witness.”
Plaintiffs in error now insist that the exclusion of this evidence was error. We think not. The question propounded to the witness was in terms asking for a conclusion, and not for a fact. They might show the facts, how and under what circumstances they signed the petition, and then it was for the court to determine whether such circumstances were a sufficient excuse for not having read and known what they were signing. This the court was willing they should do. One who signs a petition must read and determine for himself, and it is no excuse for him after the petition has been acted upon to say, “I didn’t know what the petition contained.” If he can read, he must do so, or be prevented from so doing; or the circumstances must be such as to show the perpetration of a fraud which by the exercise of reasonable caution and judgment could not have been detected; or such other peculiar circumstances as a court of equity would deem a sufficient excuse.
Plaintiffs in error insist that the presentation of a petition to the board while in session as a board of canvassers is not a sufficient presentation to the board of county commissioners. This, perhaps, is true so far as any action on the petition could be taken by the board while in session as a board of canvassers. The board in this instance acted correctly. It did not meet to transact the ordinary business of the county, and its refusal to entertain or act upon the Saratoga petition was right and proper; but the knowledge it then received that such a petition was filed with the clerk of the board, and that it contained a request to have certain names thereon taken off from all other petitions asking for an election for a relocation of the county seat,-could not be disregarded, whether it reached the board while, acting in one capacity or another. It was a fact that the board knew, and when it met it was no excuse for it to say that a knowledge of this petition, and what it contained, came to it while acting as a board of canvassers. A desire to ascertain the true will and wish of the people of that county on the question then before it, was its first duty; its preference for a county seat afterward.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court- was delivered by
Horton, C. J.:
Action by Louisa and W. C. Ford against John, Orin and Joel Barnhart for the immediate possession of one large stack of sheaf oats of the value of seventy dollars, one small stack of sheaf oats of the value of three dollars, and another small stack of sheaf oats of the value of two dollars. Joel and Orin Barnhart filed an answer containing a general denial. John Barnhart filed an answer containing a general denial, and also alleging that he was the owner of the oats described in the petition. To this the plaintiff filed a reply denying that he had any ownership or interest therein. Trial before the court, with a jury. Verdict for the plaintiffs that the defendants wrongfully detained the property from the possession of the plaintiffs, and assessing the value of the property at forty-five dollars. Judgment was rendered accordingly.
I. It is contended that neither Orin nor Joel Barnhart had the oats in their possession or under their control; therefore that Orin and Joel should have recovered their costs, and that the judgment against them should be reversed.
One of the witnesses testified that Joel, John and Orin Barnhart took the oats; that Joel employed one Mix to help take the oats, and that Joel and Orin assisted John to take them. The evidence also shows that when a demand was made upon Orin for the oats, he replied, “ I won’t if the rest don’t;” that when Joel was asked to return the oats he came at the person with a chair, and said “he wanted him to go away.” Laura Ford testified that she asked Joel, when she demanded the oats, if he could not say yes or no, and he said, “ Go home.” If the defendants below were not the owners of the oats, or entitled to possession thereof, this evidence was sufficient for the foundation of the verdict against Orin and Joel, as it appears that they acted in concert with John Barnhart in unlawfully depriving the owners of their possession of the oats. That they were acting merely as employés in the transaction for the benefit of John Barnhart, does not exculpate them. Again, when Orin and Joel were sued jointly with John Barnhart, they did not disclaim, but filed a general denial, and went to trial thereon. (Meixell v. Kirkpatrick, 33 Kas. 282; K. P. Rly. Co. v. Montelle, 10 id. 119; Williams v. Townsend, 15 id. 563.)
II. It is urged that the court erred in excluding testimony-to show that Laura Ford’s possession of the land, where the oats were grown, was not in good faith, but that she was merely acting for her father in obtaining title from the government, because he could not enter the land. (Caldwell v. Custard, 7 Kas. 303.) The plaintiffs below offered evidence tending to prove that Laura Ford took possession of the land in 1880, and still continues in possession thereof; that her father, W. C. Ford, sowed the oats on the land in the spring of 1884, upon shares. About eight acres of land were sown, and ~W. C. Ford was to give his daughter one-third of the crop. After the oats were grown W. C. Ford harvested the same, and put them in stacks. John Barnhart attempted to take possession of a part of the land in April, 1883, and with his brothers, Orin and Joel, hauled the stacks of oats away after they'were harvested. Before John Barnhart went upon the land, John Porter was residing upon a portion of it. At that time Laura Ford had a house upon the premises, next to the creek and near the school house. At the time that Barnhart attempted to take possession of the premises, he understood that Laura Ford was claiming the land. Soon after he went there, he also heard that the land office had decided adversely to John Porter and in favor of Laura Ford’s right to the claim. Porter turned over the premises to John Barnhart without any consideration.
The court properly rejected the evidence tending to show that the settlement or entry of Laura Ford was for the benefit of her father. The controversy in the case was not as to the title of the land, but simply as to the possession thereof, and as to the ownership of the oats. The defendants below could not contest the right of Laura Ford to enter the land in this action.
As to the alleged misconduct of counsel in arguing the case to the jury, it is sufficient to say that the attention of the trial court was not called to any objectionable remarks at the time they were made. (Baughman v. Penn, 33 Kas. 504.)
We have considered the other errors alleged, but find nothing in the record prejudicial to the rights of the parties complaining. Therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Buser, J.:
Robin E. Pollock sued the Crestview Country Club Association (Crestview) after he was expelled from membership in the club because of his loud and offensive language while in the Men s Grill. The district court granted summary judgment to Crestview and Pollock appeals. We affirm.
Factual and Procedural Background
Pollock joined Crestview in the early 1980’s. He received written censures in 1992 and 1995 for loud and offensive language. On each occasion Pollock was warned that such behavior could result in expulsion from the club.
As set forth in Pollock’s pleading below,
“[o]n March 8, 2006, [he] was in the Mens’ Grill at [Crestview] seated at a table by himself having a cocktail. When Dennis Gillen walked into the Mens’ Grill, [he] called [Gillen] a condescending asshole. . . . Gillen did not respond nor did he complain. Another member, Grant Nutter, filed a complaint about [Pollock’s] conduct.”
Gillen was the immediate past-president of Crestview. As president, Gillen had supported a controversial capital campaign which Pollock opposed. Pollock admitted in his deposition that he was unhappy, angry, and raised his voice when making the comment to Gillen.
On April 7, 2006, Greg Harman, the president of Crestview informed Pollock by letter that Crestview’s board was “conducting an investigation to determine if [Crestview’s] rules and regulations, specifically Article I, Section O ‘General Conduct and Appearance,’ have been violated and, if so, what sanction as authorized by [Crest-view’s] rules and regulations Article II, Section D and Article XI of the Bylaws may be appropriate.” Harman gave Pollock the “opportunity to respond in writing or by personal meeting with me or the Board at [Crestview] at a mutually convenient date and time so that we may complete our investigation.”
Article I, Section O of Crestview’s rules and regulations provided: “Crestview is a family club. Loud, offensive conduct or appearance by members or their guests will not be tolerated.” Article II, Section D of the rules and regulations stated in relevant part:
“Violation of any Crestview rule by members may result in discipline up to and including expulsion from Crestview, depending on the nature and seriousness of the violation, as determined by the Board of Directors. . . . If it is determined that a violation has occurred, except in instances where more serious measures, including immediate expulsion, are necessary, disciplinary action normally will take the following steps:
1. First Violation — Verbal warning
2. Second Violation in 24 months — Written warning
3. Third Violation in 24 months — Warning letter from the Board of Directors
4. Fourth Violation in 24 months — Suspension of use of [Crestview] for 60 days
5. Fifth Violation in 24 months — Expulsion from Crestview.”
Article XI, Section 3 of the bylaws set forth in relevant part: “The Board of Directors at any Regular or Special Meeting may suspend or expel for cause any member of [Crestview] upon a (three-fourths)-affirmative vote of the Directors.”
On April 26, 2006, Harman wrote to Pollock again. In the letter, Harman memorialized a telephone conversation of April 8, 2006, in which Pollock had “stated, among other items, that you would respond to the incident report through your attorney, Mark Ayesh.” Harman told Pollock that because “no response has been received from you or Mr. Ayesh,” the board was extending the response time for another week.
On May 2, 2006, Ayesh responded in a letter to Harman. Ayesh contended “the incident is being exaggerated” and that “[m]embers are entitled to have an opinion and express it even if it is critical of the governance of [Crestview.]” Ayesh also identified “several incidents in the past” by other members “which probably should have received some attention, but did not.”
On May 12, 2006, Harman wrote to Ayesh, requesting “advisement from Mr. Pollock of any members, guests, staff, etc. that he requests be interviewed concerning the reported incident.” On May 18, 2006, Ayesh responded by letter and requested an interview of Pollock. Ayesh also mentioned Rick Putman, who was present during the incident: “We understand you have interviewed Rick Putman. Reports from Mr. Putman to our client indicate Mr. Putman is a witness favorable to Mr. Pollock.”
On May 24, 2006, Harman wrote to Ayesh that “Mr. Putman’s observations and information, whether favorable or not to Mr. Pol lock, will be given due consideration like all other observations and information concerning the reported incident.” Putman testified in his deposition that a board member, Bill Cary, called him a few days after the incident, and that he spoke to Cary in the belief that Cary was “investigating the situation.” Putman was never formally interviewed by the board committee investigating the incident. In his own deposition, Cary denied calling Putman.
On July 7, 2006, Pollock appeared with Ayesh for an interview by Crestview’s counsel, Stephen Robison. Bob Dool, a member of the board committee investigating the incident, was also present. The interview was recorded, and transcripts were prepared.
On July 24, 2006, the board met and voted to expel Pollock from membership in Crestview.
Pollock then sued Crestview claiming breach of contract, breach of the implied duty of good faith and fair dealing, fraud, deprivation of due process, and civil conspiracy. Both parties moved for summary judgment. Pollock’s motion was denied. In its order granting judgment to Crestview, the district court found that Pollock had abandoned certain claims, and that his “sole remaining claim sounds in breach of contract.” As characterized by the district court: “[Pollock] claims [Crestview] breached its contract with him by failing to provide due process in his expulsion and further claims [Crestview] engaged in bad faith and unfair dealings in its expulsion of him.”
The district court rejected Pollock’s arguments, concluding that Crestview had provided Pollock with “due process” and that “there is no evidence of bad faith on the part of [Crestview].” The judge also stated from the bench: “[I]t just appears . . . this private club made a decision. It’s based on evidence that they considered and a judgment [was] made by the Board. The court’s not going to substitute its judgment for that of the Board.” Pollock appeals.
On appeal, Pollock argues violation of due process rights including “substantive due process,” breach of contract, and breach of the implied duty of good faith and fair dealing.
Due Process
Our standard of review in summaiy judgment cases is well known:
‘The [district] court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Pollock draws our attention to facts not relied upon by the district court, but he does not dispute those facts the district court found to be uncontroverted. Summaiy judgment was appropriate if the facts Pollock now identifies, some of which appear to be controverted, were not material. See Allen, Gibbs & Houlik v. Ristow, 32 Kan. App. 2d 1051, Syl. ¶ 1, 94 P.3d 724 (2004).
Pollock first contends Crestview violated his substantive due process rights to “protection from arbitraiy action.” For support, Pollock cites Darling v. Kansas Water Office, 245 Kan. 45, 51, 774 P.2d 941(1989), which discussed both substantive and procedural aspects of constitutional due process rights.
While “[m]any cases dealing with social club expulsion talk in terms of due process . . . [i]n the traditional sense, due process is protection against state action.” Hartung v. Audubon Country Club, Inc., 785 S.W.2d 501, 503 n.1 (Ky. App. 1990). Disputes between private social clubs and their members over expulsion do not engage constitutional due process protections, either substantive or procedural. See Bartley v. Augusta Country Club, Inc., 254 Ga. 144, 326 S.E.2d 442 (1985); Rose v. Zurowski, 236 Ga. App. 157, 160, 511 S.E.2d 265 (Ga. App. 1999); Garvey v. Seattle Tennis Club, 60 Wash. App. 930, 935, 808 P.2d 1155 (1991). “Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be.” NCAA v. Tarkanian, 488 U.S. 179, 191, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988).
Pollock has not shown any state action which caused his expulsion from Crestview. As a result, constitutional due process protections are not implicated. Although the district court found that Pollock was afforded due process, in context this meant the process due to Pollock under terms of the contract with Crestview.
Breach of Contract
Turning now to Pollock’s contract claim, he contends Crestview failed to comply with its rules, regulations, and bylaws during the disciplinary process.
“ ‘To the extent this issue involves an interpretation of written documents, this court’s standard of review is unlimited. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 153, 959 P.2d 894 (1988) (‘The interpretation and legal effect of written documents are matters of law upon which our standard of review is unlimited.’). Otherwise, the summary judgment standard of review . . . is applicable.’ ” State ex rel Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 343-44, 76 P.3d 1000 (2003).
Moreover, “[w]here there are no disputed material facts, the determination of whether a party breached a contract is a question of law and is appropriate for summary judgment.” Allen, 32 Kan. App. 2d 1051, Syl. ¶ 1.
“The relationship between a social club and its members is one of contract.” Spokoiny v. Washington State Youth Soccer Ass’n, 128 Wash. App. 794, 801, 117 P.3d 1141 (2005). The rules, regulations, and bylaws of social clubs generally establish the terms of such contracts. See Post v. Belmont Country Club, Inc., 60 Mass. App. 645, 647, 805 N.E.2d 63 (2004); Rowland v. Union Hills Country Club, 157 Ariz. App. 301, 304, 757 P.2d 105 (1988). The “bylaws, and rules of private organizations create a legally enforceable agreement in the nature of a contract between the organization and the member because of corresponding mutual obligations — by the member to follow the rules of the organization, and by the organization to fairly apply those rules.” King v. Grand Chapter of Rhode Island, 919 A.2d 991, 998 (R. I. 2007).
Courts generally defer to social clubs on questions of whether a member exhibits appropriate conduct at the club. As explained by the District Court of Appeals of Florida:
“[E]ach group has its own pattern of conduct and activity which it approves,'and which it finds enjoyable and inoffensive to its members. Actions, conduct or activity which might be inoffensive to one group might be frowned upon by another. If the courts should be called upon to determine the reasonableness of charges for expulsion, then the action and decorum of the members of all clubs would of necessity be measured by the standard of action the particular Court hearing the controversy might himself or themselves find offensive or inoffensive, as the case might be.” State ex rel. Barfield v. Florida Yacht Club, 106 So. 2d 207, 211 (Fla. Dist. App. 1958).
The leading Kansas case, Brooks v. Petroleum Club of Wichita, 207 Kan. 277, Syl. ¶ 1, 484 P.2d 1026 (1971), instructs that courts generally should defer to social clubs in matters of membership discipline provided there is substantial compliance with the social club’s bylaws:
“Courts will not interfere and take jurisdiction of cases involving the disciplining, suspension or expulsion of members of a private social club, organized as a nonprofit corporation where it appears that disciplinary proceedings are in substantial compliance with the by-laws of the club, and such by-laws are reasonable, consistent with the charter of the organization and not in violation of fundamental concepts of due process of law.”
The reference in Brooks, 207 Kan. 277, Syl. ¶ 1, to bylaws “not in violation of fundamental concepts of due process of law,” does not derive from the United States or Kansas Constitutions. Rather, this due process is based on the contract between the social club and its members. As our Supreme Court has stated, “[proceedings based upon proper bylaws of a voluntary association, constitute due process of law as to members of such association. [Citation omitted.]” 207 Kan. at 283. In any event, Pollock does not argue that Crestview’s rules, regulations, and bylaws violated fundamental concepts of due process. His primary complaint is that Crestview failed to comply with those established procedures.
Pollock insists that “[f]irst and fundamentally, Crestview’s Board of Directors did not follow Robert’s Rules of Order as required by its Bylaws. According to Robert’s Rules of Order, once a motion has been decided, the same or substantially the same motion cannot be heard during the same session.” The board’s minutes show the first vote on expulsion fell one vote short of the three-fourth’s majority required under the bylaws. After further discussion, a second motion was made and seconded, whereupon the board voted to expel Pollock.
Our Supreme Court stated in Brooks that “close adherence to the form of legal procedure is not required” when a private social club exercises its discretionary powers. 207 Kan. 277, Syl. ¶ 3. In the present case, the board voted by the requisite three-fourth’s majority to expel Pollock. The fact that a prior vote had failed went to the “form” of the proceeding and did not violate “those essentials which make for justice.” 207 Kan. 277, Syl. ¶ 3; see also Blodgett v. University Club, 930 A.2d 210, 227 (D.C. Cir. 2007) (“[A] member [of a social club] facing discipline is not entitled to the same type of process afforded under our civil and criminal justice systems.”).
Assuming strict adherence to parliamentary procedure was required, however, Crestview’s bylaws mention Robert's Rules of Order in Article II, Section 10, which governs annual and special meetings of members, not in Article III, which governs meetings of the board. Under Crestview’s bylaws, expulsion was by a vote of the board, not the membership generally.
Pollock next contends that Crestview failed to provide progressive discipline under Article II, Section D of the rules and regulations. Once again, Pollock’s argument goes to form. Even if the rules and regulations were strictly applied, however, they provided the board with discretion to depart from the progressive discipline scheme “in instances where more serious measures, including immediate expulsion, are necessaiy.”
Pollock further objects to a June 20, 2006, meeting of the board because no minutes were taken. Although Crestview’s bylaws require “a record of all meetings of . . . the Board,” the bylaws do not specify the form of that record. The minutes of the July 24, 2006, meeting memorialized that “[t]he investigating committee report had been previously presented at a Board meeting on July 20, 2006.” Pollock does not explain how the record fell short of the substantial compliance required by Brooks, nor does he argue that separate minutes for the July 20, 2006, meeting were essential for justice in his case. Issues not briefed are deemed waived or abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
Pollock also disputes the severity of his behavior, contending his remark was acceptable conduct in the Men’s Grill at Crestview. This situation is analagous to Brooks, where the plaintiff was expelled from a social club for abusive language and excessive drinking. Instead of denying “the conduct with which he was charged,” the plaintiff asserted “he should be able to pursue that conduct if he so desired.” 207 Kan. at 281. Thus, the only issue framed for the courts was “whether the established code of conduct of the Club should be replaced by [the plaintiff s] own code of conduct.” 207 Kan. at 281.
Our Supreme Court refused to address that issue, quoting Johnson v. Prince Hall Grand Lodge, 183 Kan. 141, 145, 325 P.2d 45 (1958): “ ‘The question of whether the conduct of the plaintiffs in the case at bar was such as to warrant their suspension from the Grand Lodge is not before us. That issue is a matter of internal government and discipline of the order and is for its final determination.’ ” Brooks, 207 Kan. at 283. Following our Supreme Court’s guidance, we will not decide whether Pollock’s conduct was acceptable behavior in the Men’s Grill.
The remaining details of the investigation Pollock recites on appeal, such as whether Putman’s opinion of his behavior was made known to the board, are not material to the conclusive issues of the case. See Bartal v. Brower, 268 Kan. 195, 198, 993 P.2d 629 (1999). Although Putman did not consider Pollock’s behavior to be “unusual for the men’s grill,” Crestview’s rules, regulations and bylaws empower the board, not individual members, to make that determination.
In summary, the board notified Pollock of the specific accusation made against him and the particular rule or regulation he allegedly violated. Pollock was informed that an investigation was underway to determine if his conduct merited discipline which could include a warning, suspension, or expulsion from Crestview. Pollock and his counsel were afforded the opportunity to present Pollock’s ver sion of the incident and defend against the allegation. Indeed, the fairness exhibited in the disciplinary process was noted by Pollock in his deposition when he was asked if there was “anything else that you, through your lawyer, asked Crestview to do in the investigation that they didn’t do?” Pollock responded: “Not that I’m aware of at this time.”
The record reflects that Crestview conducted the disciplinary proceedings in substantial compliance with the bylaws, rules, and regulations of the club. Accordingly, we hold the district court did not err in finding that Pollock failed to show a breach of contract.
Implied Duty of Good Faith and Fair Dealing
Turning now to the implied duty of good faith and fair dealing, Kansas courts imply such a duty in all contracts other than those for employment-at-will. Daniels v. Army National Bank, 249 Kan. 654, 658, 822 P.2d 39 (1991); Morriss v. Coleman Co., 241 Kan. 501, Syl. ¶ 2, 738 P.2d 841 (1987). Where there are no disputed material facts, the determination of whether a party breached the duty of good faith and fair dealing is also a question of law appropriate for summary judgment. See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 174-75, 872 P.2d 252 (1994); Allied Mut. Ins. Co. v. Moeder, 30 Kan. App. 2d 729, 734, 48 P.3d 1 (2002).
Pollock argues only that Crestview “expelled him . . . without just cause.” We are unable to distinguish this claim from Pollock’s assertion that his behavior was acceptable within the Men’s Grill. The board investigated the matter, voted, and concluded that Pollock’s conduct merited expulsion from Crestview. Because “no grounds exist[ed] for judicial questioning” of the “regularity or sufficiency” of that decision, summary judgment was appropriate. Brooks, 207 Kan. at 283.
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Green, J.:
After pleading no contest to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511, Leroy Schad was placed on 60 months’ probation. The trial court imposed several probation conditions that included placing him under house arrest, forbidding him from grocery shopping, and ordering him to place sexual offender signs around his house and on his car. On appeal, Schad raises arguments relating to his probation conditions, the term of his probation, and the term of his underlying prison sentence. The State contends, however, that this court lacks jurisdiction to decide Schad’s arguments under K.S.A. 21-4704b(f). We disagree with the States contention and find that we have jurisdiction to address Schad’s arguments.
First, Schad argues that the probation conditions requiring him to post signs around his house and on his car were invalid because they violated his right to privacy and his right against cruel and unusual punishment and because the trial court did not have the authority to impose the conditions. Nevertheless, when a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties. Because we reverse and remand to the trial court to sever these conditions from the order of probation on the basis that they violate our statutory scheme, it is unnecessary for us to address the constitutional law contentions.
Next, Schad contends that the trial court lacked the statutory authority to order Schad to serve 60 months of probation. We disagree. Next, Schad maintains that the trial court failed to make the necessary findings to increase his term of probation to 60 months. We agree. As a result, we remand to the trial court to determine whether there were substantial and compelling reasons to impose the 60-month term of probation. If there were not substantial and compelling reasons for the 60-month term of probation, the trial court is limited to imposing the recommended 36-month term of probation under K.S.A. 21-4611(c)(1). Next, Schad argues that the trial court erred in prohibiting him from grocery shopping as a condition of his probation. We determine that under K.S.A. 21-4603b(d), the trial court could not impose a probation condition that constituted a deprivation of an essential activity. The trial court in this case never made the necessary inquiry and appropriate findings as to whether Schad was able to obtain food by other means. As a result, we remand the case with instructions that the probation condition prohibiting Schad from grocery shopping should be severed from the order of probation unless it can be shown on rehearing that groceiy shopping was not an essential activity.
Finally, Schad contends that the trial court violated his constitutional rights in sentencing him to the aggravated number in the sentencing grid box. Nevertheless, because our Supreme Court recently rejected this same argument in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008), Schad’s argument fails. Accordingly, we affirm Schad’s underlying prison sentence and remand the case with instructions to sever the probation conditions requiring Schad to post signs around his house and on his car and with additional instructions concerning Schad’s 60-month term of probation and the probation condition pertaining to grocery shopping.
Schad was originally charged with one count of rape and three counts of aggravated indecent liberties with a child. The charges were based upon allegations that Schad had bathed separately with each of his grandchildren, a 9-year-old female and an 11-year-old male, while they were staying overnight at his house and had touched their genitals during and following the baths. Schad admitted to officers that the touching had occurred after the baths but stated that the touching had occurred over his grandchildren’s clothing and that the touching of his granddaughter had been accidental.
In exchange for Schad’s no contest plea, the State amended the complaint to charge only one count of aggravated indecent solicitation of a child. At the plea hearing, the State proffered the preliminary hearing transcript and stated that the transcript would show that on the date in question, Schad invited or persuaded a child under the age of 14 to come up to “one of the bedrooms or bathrooms in house and then and there take a bath” with him.
Based on his criminal history, Schad fell within 5-1, which was a border box, on the Kansas Sentencing Guidelines Acts grid, K.S.A. 21-4704b. As a result, Schad’s conviction of aggravated indecent solicitation of a child carried a presumptive sentence of 31 to 34 months’ imprisonment. Before sentencing, Schad moved the trial court to make appropriate border box findings to allow him to receive probation. The trial court sentenced Schad to an underlying sentence of 34 months in prison but granted Schad’s motion for probation. The trial court found that there was little chance of recidivism and that there was appropriate treatment available. The trial court ordered Schad to serve 60 months of probation. As part of the conditions of his probation, the trial court placed Schad under house arrest for the entire duration of his probation. The trial court allowed Schad to leave his home to meet with his pro bation officer, to participate in a sexual offender treatment program, and to drive to medical appointments.
Nevertheless, determining that Schad would not be allowed to leave his home for any other reason, the trial judge stated:
“You’re going to have to figure out how to get food to your house though. Cause I’m not going to let you go get groceries. I’m not going to let you go get anything. You will have to find somebody else to do that. Basically you’re going to be in prison in your house.”
The trial court also ordered Schad to place signs, with letters at least 4 inches tall, stating that a “sexual predator lives here” on all four sides of his property. Moreover, the trial court ordered Schad to put stickers similar to what “campaign people” use on both sides of his car that state “sexual predator.” The trial court further ordered Schad not to have contact with any children under the age of 16, including his grandchildren.
After Schad filed his notice of appeal in this case, the State moved to revoke Schad’s probation for failure to comply with the conditions of his probation. The State maintained that Schad had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. Schad moved to advance the case for an immediate hearing on the State’s allegation of a probation violation. Schad also moved the trial court to reconsider its probation order relating to the wording on the ordered signs. In addition, Schad asked the trial court to allow him a reasonable time to find out whether his family would be able to assist him with the costs of the house arrest program. Schad requested that if no financial help could be arranged, that the trial court reconsider whether ordering him to pay the cost of the house arrest program constituted cruel and unusual punishment. Attached to Schad’s motion for reconsideration was an affidavit from Schad outlining his concerns about the probation conditions.
After holding a nonevidentiary hearing, the trial court granted the State’s motion to revoke Schad’s probation. The trial court modified the language in its earlier order and required Schad to place signs on his property stating that a “Sex Offender Lives Here” (instead of “sexual predator lives here”) and on his car stating that “Sex Offender In This Car” (instead of “sexual predator”). In addition, the trial court reinstated Schad’s probation with a few new conditions. The trial court imposed a new 5-year term of probation. Moreover, the trial court specified the dates by which Schad was required to comply with the probation conditions.
Jurisdiction
On appeal, Schad raises arguments relating to the constitutionality of his probation conditions, the trial court’s authority to impose the probation conditions, the trial court’s authority to increase the term of his probation, and the constitutionality of his underlying prison sentence. In its appellate brief, the State does not address the merits of Schad’s arguments. Instead, the only argument advanced by the State is that there is no statutory authority for this court to hear a direct appeal of Schad’s sentence. Therefore, the State contends that this court must dismiss Schad’s appeal for lack of jurisdiction.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). It is well established that the right to appeal is entirely statutoiy and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004).
Moreover, the State’s argument requires interpretation of K.S.A. 21-4704b(f). The interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 21-4704b(f) specifies that the imposition of an optional nonprison sentence of an offense classified in grid blocks 5-H, 5-I, or 6-G is not considered a departure and is not subject to appeal:
“If an offense is classified in grid blocks 5-H, 5-I, or 6-G, the court may impose an optional nonprison sentence upon making the following findings on the record:
“(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
“(2) The recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
“(3) The nonprison sanction will serve community safety interests by promoting offender reformation.
“Any decision made by the court regarding the imposition of an optional non-prison sentence if the offense is classified in grid blocks 5-H, 5-1 or 6-G shall not be considered a departure and shall not be subject to appeal.”
Here, the trial court imposed an optional nonprison sentence for Schad’s offense that was classified in grid block 5-1. Thus, under K.S.A. 21-4704b(f), the decision of the trial court regarding the imposition of an optional nonprison sentence for Schad is not considered a departure and is not subject to appeal.
Nevertheless, Schad correctly points out that this court has previously held that the constitutionality of a probation condition is subject to appellate review. Specifically, in State v. Spencer, 31 Kan. App. 2d 681, 683, 70 P.3d 1226, rev. denied 276 Kan. 973 (2003), this court stated:
“It is true that we have no jurisdiction to consider an appeal from a presumptive sentence, K.S.A. 21-4721(c)(1); State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000), but the issue raised relates to a constitutional violation in determining the terms and conditions of the probation granted.”
Citing Spencer, this court in State v. Bennett, 39 Kan. App. 2d 890, 891, 185 P.3d 320 (2008), aff'd 288 Kan. 86, 200 P.3d 455 (2009), noted that this court has allowed an appeal from a presumptive sentence when the appeal challenged an imposed condition of probation. This court noted that “[generally, conditions of probation are not per se presumptive, and such conditions are a matter within the discretion of the sentencing court. See K.S.A. 21-4610(c); Spencer, 31 Kan. App. 2d at 683.” Bennett, 39 Kan. App. 2d at 891. Therefore, this court rejected the State’s argument that it lacked jurisdiction to consider the appellant’s argument that a condition of his probation was unconstitutional. 39 Kan. App. 2d at 891. On appeal to our Supreme Court, the State did not make the same jurisdictional argument. Our Supreme Court, however, did address the merits of the appellant’s argument concerning the constitutionality of his probation condition. See Bennett, 288 Kan. at 90-99.
Moreover, Schad maintains that this court may address his arguments concerning the trial court’s authority to impose a probation condition, to increase his term of probation to 60 months, and to impose tire aggravated number in the grid box for his underlying prison sentence under K.S.A. 22-3504. K.S.A. 22-3504(1) provides that courts may correct an illegal sentence at any time. An illegal sentence, as contemplated by K.S.A. 22-3504, is a sentence “imposed by a court without jurisdiction; one that does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or one that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]” State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005).
Most of Schad’s arguments relate to whether his sentence conformed “to the statutory provisions, either in the character or the term of the punishment authorized.” As a result, this court can address those arguments and determine whether Schad’s sentence was illegal. Moreover, based on the previous decisions by this court, we have jurisdiction to address Schad’s constitutional challenges to the terms and conditions of his probation.
Finally, K.S.A. 21-4704b(f) states that “[a]ny decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or 6-G shall not be considered a departure and shall not be subject to appeal.” (Emphasis added.) While K.S.A. 21-4704b(f) does not allow an appeal from a trial court’s decision regarding the imposition of a nonprison sentence, the statute says nothing about the individual conditions of probation ordered by the trial court.
Generally, criminal statutes must be strictly construed in favor of the defendant. Any reasonable doubt as to the meaning of the statute is decided in favor of the defendant. This rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). Under the rule of lenity, where the intention of the legislature is unclear from the act itself and reasonable minds might differ as to its intention, a court will adopt the less harsh meaning. See Black’s Law Dictionary 1359 (8th ed. 2004). The rule of lenity is applied broadly to statutes that create penalties. See State v. Edwards, 39 Kan. App. 2d 300, 303, 179 P.3d 472, rev. denied 286 Kan. 1181 (2008).
K.S.A. 21-4704b is a penalty statute in that it defines the punishments for nondrug felony crimes. Therefore, we apply the rule of lenity if there is any reasonable doubt as to the meaning of the provisions of K.S.A. 21-4704b. Because K.S.A. 21-4704b(f) is silent about the individual conditions of probation ordered by the trial court, we determine that the statute does not prohibit a defendant from appealing those conditions to this court. As discussed previously, conditions of probation are not per se presumptive and are a matter within the discretion of the sentencing court. See Bennett, 39 Kan. App. 2d at 891. Therefore, it is apparent that K.S.A. 21-4704b(f) does not cut off Schad’s right to challenge the conditions of his probation, and this court can address Schad’s arguments relating to those conditions.
Issues Not Raised to the Trial Court
Before we proceed to the merits of Schad’s arguments, we point out that Schad failed to object to the signage conditions on this basis at the trial court level. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).
Nevertheless, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) that the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) that consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) that the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). We will address Schad’s arguments under the first exception because the issues involve purely legal questions. See State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008).
Signage Conditions
On appeal, Schad first challenges the constitutionality of the conditions of probation requiring him to post the signs around his house and on his car letting the public know that he is a sex offender. Schad raises two constitutional arguments: (1) that the probation conditions impermissibly restricted his right to privacy without bearing a reasonable relationship to the rehabilitative goals of probation, the protection of the public, and the nature of the offense; and (2) that the probation conditions constituted cruel and unusual punishment.
In support of his argument, Schad cites several cases where appellate courts have applied a statutory scheme in determining whether a trial court had the authority to order these types of conditions. See People v. Meyer, 176 Ill. 2d 372, 680 N.E.2d 315 (1997); State v. Muhammad, 309 Mont. 1, 43 P.3d 31 (2002); State v. Burdin, 924 S.W.2d 82 (Tenn. 1996). Nevertheless, we do not need to reach Schad’s constitutional arguments because we can consider whether the trial court had the statutory authority to impose the signage conditions.
The United States Supreme Court has stated that “if a case may be decided on either statutory or constitutional grounds, [a court], for sound jurisprudential reasons, will inquire first into the statutory question.” Harris v. McRae, 448 U.S. 297, 306-07, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1985). This practice is based on the deeply rooted doctrine that a court “ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 89 L. Ed. 101, 65 S. Ct. 152 (1944); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 159 L. Ed. 2d 98, 124 S. Ct. 2301 (2004) (“Always we must balance ‘the heavy obligation to exercise jurisdiction,’ [citation omitted] against the ‘deeply rooted “commitment” not to pass on questions of constitutionality’ unless adjudication of the constitutional issue is necessary. [Citations omitted.]”); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 16 (D.C. 1987); Caron v. Town of North Smithfield, 885 A.2d 1163, 1165 (R.I. 2005) (“[T]his court has on many occasions held that it will not decide a case on constitutional grounds if it otherwise can be decided.”). In this case, where there is a valid alternative statutory ground for relief, we need not reach Schad’s constitutional assertions.
Turning now to the merits of this issue, we note that the probation condition in Burdin is very similar to the probation condition requiring Schad to post signs around his house. Specifically, in Burdin, the trial court required the defendant to erect a 4-foot by 8-foot sign, stating: “Warning, all children. [Defendant] is an admitted and convicted child molester. Parents beware,” as a condition of his probation. 924 S.W.2d at 84. The defendant argued that the probation condition was not authorized by the sentencing act effective in that state. On the other hand, the State argued that the condition was authorized under the sentencing act and that it was reasonably related to the purpose of the defendant’s sentence.
In addressing the parties’ arguments, the Tennessee Supreme Court looked to the statutes setting forth the principles of sentencing and the trial court’s authority to impose probation conditions. The court noted that the enumerated probation conditions in the statute relating to the trial court’s authority to impose probation conditions were closely related to societal duties, focused on the offender and the people charged with the offender’s supervision, and offered no dramatic departures from the traditional principles of rehabilitation. The court stated that the primary goal of probation, under the sentencing act and the decisions of its appellate courts, was rehabilitation of the defendant. 924 S.W.2d at 86.
The Tennessee Supreme Court rejected the State’s argument that the trial court had the authority to impose the probation condition under the section of the statute allowing the trial court to order a defendant to “[s]atisfy any other conditions reasonably related to the purpose of the offender’s sentence and not unduly restrictive of the offender’s liberty, or incompatible with the offender’s freedom of conscience or otherwise prohibited by this chapter.” 924 S.W.2d at 85. Determining that the subsection did not give the trial court unlimited discretion to impose conditions of probation, the Tennessee Supreme Court stated:
“[The subsection] cannot be read as granting unfettered authority to the courts to impose punishments which are beyond the bounds of traditional notions of rehabilitation. The consequences of imposing such a condition without the normal safeguards of legislative study and debate are uncertain. Posting the sign in the defendant’s yard would dramatically affect persons other than the defendant and those charged with his supervision. In addition to being novel and somewhat bizarre, compliance with the condition would have consequences in the community, perhaps beneficial, perhaps detrimental, but in any event unforeseen and unpredictable. Though innovative techniques of probation are encouraged to promote the rehabilitation of offenders and the prevention of recidivism, this legislative grant of authority may not be used to usurp the legislative role of defining the nature of punishment which may be imposed. The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature. [Citations omitted.]” 924 S.W.2d at 87.
The Tennessee Supreme Court found that the probation condition was not expressly or implicitly authorized by the sentencing act. 924 S.W.2d at 87.
Similarly, appellate courts in other states have declared probation conditions requiring defendants to post signs around their houses or on their car to be invalid. In Muhammad, 309 Mont. at 3, the trial court imposed a probation condition requiring the defendant to post signs at each entrance of his residence, stating: “CHILDREN UNDER THE AGE OF 18 ARE NOT ALLOWED BY COURT ORDER.” The defendant argued that the condition exceeded statutory parameters regarding the dissemination of information concerning sexual offenders. In addressing the defendant’s argument, the Montana Supreme Court looked to a Mont. statute, Code Ann. § 46-18-202(1)(e) (1997), which provided that “the sentencing judge may impose any condition reasonably related to the objectives of rehabilitation and the protection of the victim and society.’ ” 309 Mont. at 11. The Montana Supreme Court noted that the majority of jurisdictions that had examined probation conditions requiring the placement of signs on defendants’ property had concluded that such conditions were not reasonably related to the goals of rehabilitation and the protection of society. 309 Mont. at 11.
In agreeing with the majority of jurisdictions that such signage conditions exceeded express or implicit statutory authority, the Montana Supreme Court stated:
“We agree with the majority of jurisdictions holding that the imposition of such conditions exceeds express or implicit statutory authority granted to trial courts, as the requirement is not reasonably related to serve the goals of rehabilitation and the protection of the victim and society. Therefore, we conclude that the condition requiring the placement of signs at every entrance of Muhammad’s residence violates § 46-18-202(1)(e), MCA (1997). This condition, as is the banishment condition, is unduly severe and punitive to the point of being unrelated to rehabilitation. As noted by other jurisdictions, the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate. Moreover, the District Court imposed less restrictive means to rehabilitate Muhammad and to protect the victim and society, such as requiring that he obtain sexual offender treatment, have no contact with the victim or her family and register as a sexual offender and as a violent offender, which permits the agency that Muhammad is registered with to disseminate his name to the public with the notation that he is a sexual offender.” 309 Mont. at 12.
The Montana Supreme Court vacated the signage condition based upon its determination that the condition was not reasonably related to the goals of rehabilitation and the protection of the victim and society in violation of the statute. 309 Mont. at 12.
In Meyer, 176 Ill. 2d at 373, the Illinois Supreme Court determined that a probation condition requiring the defendant to erect a sign that said: “Warning! A Violent Felon lives here. Enter at your own Risk!” was unreasonable and not authorized by its Corrections Code. Under Section 5-6-3(b) of the Illinois Unified Code of Corrections, 730 ILCS 575-6-3(b) (West 1994) the trial court was authorized to impose 16 permitted conditions of probation “ ‘in addition to other reasonable conditions.’ ” 176 Ill. 2d at 377, 378. The State argued that the signage condition was a reasonable condition of probation because it was consistent with the permissible conditions Usted in section 5-6-3(b) and furthered the goals of probation.
In rejecting the State’s argument, the Illinois Supreme Court stated:
‘We hold that section 5-6-3(b) of the Code did not authorize the trial court to require the sign as a condition of the defendant’s probation. The sign contains a strong element of public humiliation or ridicule because it serves as a formal, public announcement of the defendant’s crime. Thus, the sign is inconsistent with the conditions of probation listed in section 5-6-3(b), none of which identify public notification or humiliation as a permissible condition. Further, we determine that the sign may have unpredictable or unintended consequences which may be inconsistent with the rehabilitative purpose of probation.” 176 Ill. 2d at 382.
The Illinois Supreme Court further noted that the nature and location of the sign were likely to have an adverse effect on innocent individuals who might reside with the defendant. 176 Ill. 2d at 382. Determining that the signage condition was unreasonable under its corrections code, the Illinois Supreme Court stated:
“The judicially developed condition in the case at bar does not reflect present penological policies of this state as evidenced by our Unified Code of Corrections. The authority to define and fix punishment is a matter for the legislature. [Citation omitted.] The drastic departure from traditional sentencing concepts utilized in tlris case is not contemplated by our Code. Therefore, we determine that the erection of the sign as a condition of probation was unreasonable, and may be counterproductive to defendant’s rehabilitative potential.” 176 Ill. 2d at 383.
As a result, the Illinois Supreme Court vacated the signage condition. 176 Ill. 2d at 383; see also People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146 (1995) (probation condition requiring defendant to affix florescent sign that stated “ ‘convicted dwi’ ” to the license plate of any vehicle he drove declared invalid; condition could not be regarded as rehabilitative measure authorized by statute).
Like the particular statutes in Burdin and Meyer, K.S.A. 21-4610(c) sets out the conditions of probation that a trial court is authorized to impose. Under K.S.A. 21-4610(c), there are 14 nonexclusive probation conditions that a trial court may impose. As in Burdin, most of the enumerated conditions in K.S.A. 21-4610(c) are closely related to conventional societal duties — productive, suitable employment; support of dependents; establishment of a residence within the community; participation in educational and rehabilitative programs; cooperation with supervising agencies; avoidance of injurious or vicious habits; avoidance of persons or places of disreputable or harmful character; community or public service work; and restitution.
The enumerated conditions in K.S.A. 21-4610(c) reflect the legislature’s intent that the main goal of probation is rehabilitation. Our Supreme Court has stated that “[t]he primary purpose of probation is the successful rehabilitation of the offender. Toward that end courts are authorized to impose conditions and restrictions on the probationer s liberty to afford the probationer a setting conducive to the rehabilitative process. [Citation omitted.]” State v. Turner, 257 Kan. 19, 24, 891 P.2d 317 (1995). Quoting State v. Dubish, 236 Kan. 848, 853-54, 696 P.2d 969 (1985), our Supreme Court further outlined the nature of probation as follows:
“ ‘The basic purpose for probation is to provide a program whereby an individual is given the opportunity to rehabilitate himself without institutional confinement under the supervision of a probation official and under the continuing power of the district court to impose institutional punishment for the original offense if the probationer abuses this opportunity. It permits the sentencing judge to give a convicted person the opportunity to mend his ways and his freedom under conditions imposed. Probation is not granted out of a spirit of leniency, but is granted as a result of the evaluation of the characteristics of the offender and a determination that the offender may respond best to supervised control within the community and that public safety will not be endangered. On die other hand, confinement is for individuals who are required to be isolated from the community in order to protect society or to provide a closely controlled environment for individuals who can learn to adjust their attitude or behavior for later release into the community.’ ” Turner, 257 Kan. at 24.
See also Roberts v. United States, 320 U.S. 264, 272, 88 L. Ed. 41, 64 S. Ct. 113 (1943) (The basic purpose of probation is to provide an individualized program offering young or unhardened offenders an opportunity to rehabilitate themselves without institutional confinement under the tutelage of probation officials and under the continuing power of the court to impose institutional punishment for their original offense if they abuse the opportunity.).
In his appellate brief, Schad cites part of the above language from Dubish and Turner and argues that the conditions of probation did not give him the opportunity to rehabilitate himself.
Here, in placing Schad on probation, the trial court declared that there was “little chance of recidivism.” This was supported by the psychological evaluation report, which stated that Schad was not “a public risk.” In the psychological evaluation report, Schad was described as “an aging person showing poor judgment in the face of mitigating circumstances.” The trial court’s stated reason for ordering the probation conditions requiring Schad to post signs around his house and on his car declaring his sex offender status was to protect people who were new to the community and might not know that Schad was a convicted sex offender. The trial court never pronounced a rehabilitative goal for imposing those probation conditions.
Moreover, a review of the record in this case fails to show how those probation conditions would fit within the bounds of rehabilitating Schad. To the contrary, the conditions would actually deter Schad’s rehabilitation as they would make it nearly impossible for Schad to assimilate himself within the community. Everywhere Schad would go, he would be explicitly identified as a sexual offender. The probation conditions requiring Schad to post signs on his property and on his car represented the criminal act that he had committed and was a badge of shame for all to see. As noted by other jurisdictions, “the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate.” Muhammad, 309 Mont. at 12.
Indeed, the signage conditions in the present case are reminiscent of Branded, a television Western series which aired on NBC from 1965 through 1966. The series starred Chuck Connors as Jason McCord, a United States Army captain who had been courtmartialed for cowardice and forced to leave the Army. Some of the lyrics of the theme song were as follows:
“Branded!
“Marked with a coward’s shame.
“What do you do when you’re branded . . . ?”
According to the theme song, “[McCord] was innocent, Not a charge was true.” But this did not change how people, as a whole, viewed McCord.
Essentially exiled, McCord traveled the west from job to job, always ready to move on when his current employer would learn about his notorious reputation for cowardice. In the series, McCord, as he traveled throughout the west, suffered unimaginable taunts and deadly threats from people who learned about his reputation. The theme song ends with these telling lyrics:
“And wherever you go
“For the rest of your life
“You must prove
“You’re a man!”
In McCord’s case, these final lyrics condemned him to a life of wandering and trying to prove to others that he' was not a coward. Indeed, the lyrics expressed a very harsh and unforgiving censure against McCord for his alleged cowardice.
Similarly, in the present case, the signage conditions exact a very harsh censure against Schad. Although Schad had been convicted of a sexual offense, the imposed signage conditions would work against any rehabilitation while on probation because wherever Schad would be, he would be “branded.” The signage conditions would not be helpful in restoring Schad to the ranks of society’s productive citizens.
Further, despite the trial court’s ruling, the conditions are not reasonably related to the protection of the public. The trial judge noted that everyone in the small town where Schad lives knows about his sex offender status. The trial judge’s concern was with people new to the community.
Nevertheless, the population of Hudson, Kansas, and the number of housing units within the town, which are listed in the 2000 United States Census, are 133 people and 68 housing units, respectively. In taking judicial notice of this fact under K.S.A. 60-412(c), we have afforded both Schad and the State reasonable opportunity to respond to the taking of such judicial notice in compliance with K.S.A. 60-412(d). There being no objection by the parties, we have taken judicial notice of the 2000 United States Census results relating to Hudson, Kansas.
With such a small population in Hudson, the town where Schad resides, it is unclear- how anyone moving into the town would not swiftly be made aware of Schad’s sexual offender status. Because he is a convicted sexual offender, Schad was required to comply with the registration requirements of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. See K.S.A. 22-4907. The information concerning Schad’s sex offender status, his address, the cars he owned, and other pertinent information would be made available to the public through the registration and noti fication statutes of the KORA. See K.S.A. 22-4909. Someone moving into the community with small children could access this information either through the Stafford County Sheriffs office or the Internet.
Moreover, the following provisions of K.S.A. 22-4909 mandate notification of schools and licensed child care facilities of the Kansas Bureau of Investigation Internet website and any website containing offender registration information:
“(c) The state department of education shall annually notify any school upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any grades one through 12 of the Kansas bureau of investigation internet website and any internet website containing information on the Kansas offender registration sponsored or created by the sheriff of the county in which the school is located for the purposes of locating offenders who reside near such school.
“(d) The secretary of health and environment shall annually notify any licensed child care facility of the Kansas bureau of investigation internet website and any internet website containing information on the Kansas offender registration sponsored or created by the sheriff of the county in which the facility is located for the purposes of locating offenders who reside near such facility.
“(e) Such notification required in subsections (c) and (d) shall include information that the sheriff of the county where such school or child care facility is located is available to the school and child care facilities to assist in using the registry and providing additional information on the registered offenders.”
With such widespread dissemination of information concerning sexual offender registration and with the small size of Schad’s community, we feel confident that any person moving into the community would quickly be made aware of Schad’s sexual offender status.
In addition to the registration and notification requirements of the KORA, the trial court in this case had imposed other conditions to protect the victim and society by ordering Schad to remain under house arrest, to not have contact with the victim or any children under the age of 16, and to attend sexual offender treatment. Because measures to protect the public were already in place, the trial court’s order was unduly severe and did not reasonably relate to the protection of the public. See State v. Scott, 265 Kan. 1, 9-10, 14-15, 961 P.2d 667 (1998) (recognizing that legislature has enacted sexual offender registration requirements so that public has opportunity to defend themselves from danger posed by sex offenders).
Under the facts of this case, the probation conditions requiring Schad to post signs around his house and on his car announcing his sex offender status were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society. In short, probation is not to shield guilty individuals from the consequences of their crimes, but it is an attempt to reform their attitudes about acting out in a criminal way. Here, the signage conditions made Schad an object of condemnation and ridicule. The signage conditions only confirmed society’s outrage against Schad. The signage conditions were simply a punitive measure not reasonably related to rehabilitation.
As in Burdin, Muhammad, and Meyer, the conditions imposed were not expressly or implicitly authorized by K.S.A. 21-4610(c), the statute governing the conditions of probation. Because the trial judge went outside of his authority in ordering the probation conditions requiring Schad to post the signs around his house and on his car, we reverse and remand the case with directions for the trial court to sever the signage conditions from the order of probation.
Legality of Increased Term of Probation
Next, Schad maintains that the trial court lacked the statutory authority to order him to serve 60 months of probation. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008).
K.S.A. 21-4611(c), which relates to the duration of probation in felony cases, provides in relevant part as follows:
“For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes is as follows:
“(1) For nondrug crimes the recommended duration of probations is:
(A) Thirty-six months for crimes in crime severity levels 1 through 5;
“(3) In felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes and severity level 4 on die sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program as provided under K.S.A. 75-5291 et seq., and amendments thereto, of up to 12 months in length.
“(4) In felony cases sentenced at severity level 8 on the sentencing guidelines grid for nondrug crimes and severity level 3 on the sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program, as provided under K.S.A. 75-5291 et seq., and amendments thereto, of up to 18 months in length.
“(5) If the court finds and sets forth with particularity die reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsection (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.
“(6) Except as provided in subsections (c)(7) and (c)(8), the total period in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by die court at any time.” (Emphasis added.)
Subsections (c)(7) and (c)(8) of K.S.A. 21-4611 are inapplicable to the present case as they relate to a conviction for nonsupport of a child and the modification and extension of an offender s period of supervision, respectively.
Here, the recommended term of probation for S chad’s crime of conviction was 36 months under K.S.A. 21-4611(c)(1)(A). Essentially, Schad maintains that because his crime of conviction does not come within subsection (c)(5) of K.S.A. 21-4611, there is no authority for the trial court to increase his probation term to 60 months. Nevertheless, subsection (c)(5) of K.S.A. 21-4611 limits only the trial court’s authority to increase the length of probation for those crimes of conviction covered by subsections (c)(3) and (c)(4) to those cases where the trial court has made certain findings regarding the safety of the public and the welfare of the defendant. It does not limit the trial court’s authority to increase the term of probation for crimes covered under K.S.A. 21-4611(c)(1) and (c)(2).
By its use of the phrase “recommended” term of probation in K.S.A. 21-4611(c)(1), the legislature implicitly recognizes that the trial court may increase a defendant’s probation term for a crime covered by that section. K.S.A. 21-4611(c)(6) provides that with the exceptions of subsections (c)(7) and (c)(8), the total period in all cases cannot exceed the longer of 60 months or the maximum period of the prison sentence that could be imposed.
Citing State v. Whitesell, 270 Kan. 259, 292-93, 13 P.3d 887 (2000), this court in State v. Gordon, 30 Kan. App. 2d 852, 857, 50 P.3d 100 (2002), rev'd on other grounds 275 Kan. 393, 66 P.3d 903 (2003), recognized that a trial court may impose a greater period of probation than the recommended terms identified by K.S.A. 21-4611(c)(1) and (c)(2). This court noted, however, that such a deviation is considered a departure requiring the trial court to state on the record substantial and compelling reasons to deviate from the recommended term. 30 Kan. App. 2d at 857.
In Whitesell, the appellant argued that the trial court erred in sentencing him to 60 months of probation instead of the presumptive guidelines sentence of 24 months of probation under K.S.A. 21-3438(a). Our Supreme Court also pointed to K.S.A. 1999 Supp. 21-4611(c)(1), which outlined a recommended sentence of 24 months of probation for the appellant’s crime of conviction. Our Supreme Court recognized that under K.S.A. 1999 Supp. 21-4716, a trial court has the authority to impose a departure sentence when the court states on the record substantial and compelling reasons for the departure at the time of sentencing. 270 Kan. at 292-93.
Under both Whitesell and Gordon, a defendant’s term of probation is not limited to the recommended term outlined in K.S.A. 21-4611(c)(1) and (c)(2). The trial court has the authority to increase the term to the longer of 60 months or the maximum period of the prison sentence that could be imposed, provided that certain findings are made on the record. See K.S.A. 21-4611(c)(6) and K.S.A. 21-4716. As a result, Schad’s argument that the trial court could not increase his term of probation beyond the recommended term of 36 months in K.S.A. 21-4611(c)(1)(A) fails.
Necessary Findings for Increased Term of Probation
Alternatively to the previous issue, Schad contends that the trial court failed to make the necessary findings to increase his term of probation to 60 months. Schad’s argument on this issue requires interpretation of statutes. The interpretation of a statute presents a question of law over which an appellate court has unlimited review. Storey, 286 Kan. at 9-10.
To support his argument on this issue, Schad cites to K.S.A. 21-4611(c)(5), which states as follows:
“If the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.”
By its plain and unambiguous language, K.S.A. 21-4611(c)(5) applies only to those crimes covered by subsections (c)(3) and (c)(4) of that statute. As set forth in the previous issue, Schad’s crime of conviction does not fit within subsection (c)(3) or (c)(4) of K.S.A. 21-4611. As a result, the findings required under K.S.A. 21-4611(c)(5) are inapplicable to this case.
As discussed in the previous issue, however, this court has recognized that a deviation from the recommended term of subsection (c)(1) of K.S.A. 21-4611 is considered a departure. See State v. Bost, 21 Kan. App. 2d 560, 571, 903 P.2d 160 (1995) (recognizing that presumptive nonimprisonment term for severity level 5 crime is 36 months under K.S.A. 1994 Supp. 21-4611[c][1][A]). Such a departure requires the trial court to state on the record substantial and compelling reasons to deviate from the recommended term. Gordon, 30 Kan. App. 2d at 857; see Whitesell, 270 Kan. at 292-93. Our Supreme Court has defined “substantial and compelling” as follows: “The term ‘substantial’ refers to something that is real, not imagined; something with substance and not ephemeral. The term ‘compelling’ implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. [Citation omitted.]” State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
Here, in granting Schad’s motion for probation, the trial judge found that there was “little chance of recidivism” and “appropriate treatment available.” The trial judge noted that he was concerned that he did not “make a mistake on that” and ordered Schad to be on 60 months of probation. Recognizing that the probation time for Schad’s conviction was listed at 36 months, the trial judge stated:
“So the conditions of your probation are that it’s five years of probation. I can do that. Probation time was listed at 36 months, but I’m making a finding that five years of probation under the terms that I’m going to announce. Because I want to make sure that I’m not making a mistake on what I’m doing here. You will be subject to house arrest for those five years.”
The only reason given by the trial judge for increasing the recommended 36-month term of probation to 60 months was that he wanted to make sure that he had not made the wrong decision in placing Schad on probation. This finding does not meet the definition of substantial and compelling reasons as outlined in McKay. Because the trial court failed to state on the record substantial and compelling reasons for increasing the recommended 36-month term of probation, we remand to the trial court for additional findings on this issue. On remand, “the sentencing court may ‘cite appropriate reasons justifying the imposition of a departure sentence and impose such a sentence’ even though it ‘failfed] to meet the requirements for the imposition of a departure sentence’ the first time.” Whitesell, 270 Kan. at 294. In the event that the trial court finds no substantial and compelling reasons justifying, the increased term of probation, the trial court will be limited to imposing the 36-month recommended term of probation under K.S.A. 21-4611(c)(1).
No Grocery Shopping Probation Condition
Next, Schad argues that the trial court erroneously prohibited him from grocery shopping as a condition of house arrest. Schad’s argument requires interpretation of K.S.A. 21-4603b(d). Interpretation of a statute presents a question of law.over which an appellate court has unlimited review. Storey, 286 Kan. at 9-10.
When a defendant has been found guilty of a crime, K.S.A. 21-4603d(a)(6) authorizes the trial court to “assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b and .amendments thereto.” K.S.A. 21-4603b(d) provides a nonexclusive list of the house arrest sanctions that may be imposed:
“House arrest sanctions shall be administered by the court and the secretary of corrections, respectively, through rules and regulations, and may include, but are not limited to, rehabilitative restitution in money or in land, curfew, revocation or suspension of the driver’s license, community service, deprivation of nonessential activities or privileges, or other appropriate restraints on the inmate’s liberty.” (Emphasis added.)
Schad maintains that although the list of house arrest sanctions is nonexclusive, K.S.A. 21-4603b(d) specifically states that “nonessential activities” may be deprived to die individual on house arrest. Schad argues that this language clearly indicates that the legislature did not intend for the sentencing court to be able to deprive a person of essential activities while on house arrest.
When construing statutes to determine legislative intent that is not ascertainable from the plain language, appellate courts may apply the maxim, expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another. Applying this maxim, courts may presume that when the legislature expressly includes specific items in a statutory list, it intends to exclude any items not expressly included in that list. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 911, 47 P.3d 1275 (2002).
The above maxim has limited application to this case as the statutory list in K.S.A. 21-4603b(d) is nonexclusive. In State v. Gunby, 282 Kan. 39, 52-53, 144 P.3d 647 (2006), our Supreme Court held that the eight material facts set forth in the nonexclusive list of factors in K.S.A. 60-455 were “among the possibilities, not the only possibilities” and “starting points for analysis rather than ending points.” 282 Kan. at 53.
In State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), however, our Supreme Court applied the doctrine of expressio unius est exclusio alterius to a nonexclusive list of factors in K.S.A. 1994 Supp. 21-4716(b) justifying a departure sentence. There, the appellant argued that his young age should be a mitigating factor justifying a downward departure of his sentence. The appellant reasoned that although a defendant’s young age was not listed as a mitigating factor under K.S.A. 1994 Supp. 21-4716(b), it should qualify because one of the aggravating factors under K.S.A. 1994 Supp. 21-4716(b) was the victim’s young age. Rejecting the appellant’s argument, our Supreme Court stated:
“K.S.A. 1994 Supp. 21-4716(b)(2)(A) specifically lists the victim’s young age as an aggravating factor but 21-4716(b)(1) says nothing about the defendant’s young age being a mitigating factor. Even though the list of mitigating factors is nonexclusive, the doctrine of expressio unius est exclusio alterius applies here, and, thus, the legislature must not have intended for the defendant’s young age to be a mitigating factor.” 259 Kan. at 235.
Our Supreme Court held that the appellant’s young age was not a substantial and compelling reason justifying departure as a matter of law. 259 Kan. at 235.
Similarly, in State v. Martin, 279 Kan. 623, Syl. ¶ 2, 112 P.3d 192 (2005), our Supreme Court determined that the legislature, by including the defendant’s minor or passive role in crime as a mitigating factor under the statute justifying a departure sentence but not including the defendant’s ringleader role as an aggravating factor, did not intend for defendant’s ringleader role to be used an aggravating factor. Our Supreme Court recognized that the list of aggravating factors and mitigating factors was nonexclusive, which suggested a legislative intent to acknowledge the existence ofvalid unlisted factors. Nevertheless, our Supreme Court concluded: “Valid unlisted factors, however, according to this court’s reasoning in Favela, do not have counterparts included in a statutory list.” Martin, 279 Kan. at 628.
Although Favela and Martin are distinguishable because they dealt with the aggravated and mitigating factors justifying a departure sentence, our Supreme Court’s reasoning in those cases has application here. The legislature expressly included the sanction “deprivation of nonessential activities or privileges” but did not include its counterpart in the nonexclusive list under K.S.A. 21-4603b(d). This indicates a legislative intent not to include deprivation of essential activities or privileges as a house arrest sanction under K.S.A. 21-4603b(d). Moreover, although not argued by Schad, such a broad sanction depriving an individual of activities essential to his or her survival would likely be declared unconstitutional under the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. Based on a plain reading of the statute, it is clear that the legislature did not intend to give the trial court the authority to deprive an individual of an áctivity essential to daily living while on house arrest.
The probation condition prohibiting Schad from leaving the house to grocery shop would constitute deprivation of an essential activity unless Schad had other means of providing food for himself. The record in this case indicates that Schad was an elderly man living by himself. There is no evidence in the record showing that Schad had friends or family members living close to him who would be willing to do his grocery shopping. Under such circumstances, grocery shopping would presumably constitute an activity essential to daily living. In the absence of findings that Schad has the ability to obtain food by other others, the no grocery shopping condition cannot be ordered under K.S.A. 21-4603b(d).
Because there is nothing in the record to establish that Schad had other means to obtain food for himself, we remand the case to the trial court for additional findings on this issue. If the trial court finds that the no grocery shopping condition constituted deprivation of an essential activity, the condition should be severed from the probation order in this case.
Constitutionality of Underlying Prison Sentence
Finally, Schad contends that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it sentenced him to the aggravated sentence in the appropriate grid box without requiring that the aggravating factors be charged in the complaint, put before a jury, and proved beyond a reasonable doubt.
Our Supreme Court recently rejected this same argument in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). Our Supreme Court held that because the Kansas Sentencing Guidelines Act (KSGA) provides the trial court with discretion to impose any sentence within the presumptive range, the prescribed statutory maximum sentence under Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), is the high number in the applicable sentencing grid box. Therefore, a sentence to any term, including an aggravated term, within the range in a KSGA presumptive grid box does not violate Cunningham or Apprendi. Johnson, 286 Kan. at 851. Moreover, because a sentence that falls within the applicable grid box is a presumptive sentence, appellate courts lack jurisdiction to consider a challenge to such sentence under K.S.A. 21-4721(c)(1). Appellate courts lack jurisdiction even if the sentence is to the longest term in the presumptive grid box for a defendant’s convictions. Johnson, 286 Kan. at 851-52.
This court is duty bound to follow our Supreme Court precedent in Johnson, absent some indication the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). As a result, Schad’s argument on this issue fails.
Summary of Disposition
In summary, we affirm Schad’s underlying prison sentence. We remand the case to the trial court with instructions to do the fol lowing: (1) The trial court will sever the conditions of probation requiring Schad to post signs around his house and on his car. (2) The trial court will reconsider its order requiring Schad to serve 60 months of probation. It will clarify whether there were substantial and compelling reasons, as outlined in McKay, 271 Kan. at 728, to impose the 60-month term of probation. If the answer is yes, it will set out substantial and compelling reasons for deviating from the recommended 36-month term of probation. If the answer is no, it will be limited to imposing the recommended 36-month term of probation. (3) The trial court will reconsider the no grocery shopping condition of probation. It will sever the no grocery shopping condition unless it finds that grocery shopping was a nonessential activity for Schad. In all other respects, the conditions of probation will remain the same.
Affirmed in part, reversed in part, and remanded to the trial court with directions. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the partition of 200 acres of land in Neosho county, brought in the district court of that county, on October 16,1884, by Luther C. French against John Stone and others. The case was tried before the court and a jury, and judgment was rendered for the partition of the property, giving to the plaintiff, Luther C. French, one-seventh thereof, and to the defendant John Stone one-seventh thereof, and to the other defendants the remainder thereof. To reverse this judgment, the defendant John Stone brings the case to this court, making the plaintiff, Luther C. French, and all the defendants except himself, defendants in error.
It appears that on March 1, 1878, and prior thereto, the property in controversy belonged to Francis B. French, although he had not yet entirely paid for the same. At that time he formed the intention of giving this land at his death to his brother, Dudley S. French, unless he should sell the same during his lifetime. On March 1,1878, he wrote a letter to his brother, Dudley S, French, in which he stated among other things the following:
“In case I should drop off you can take possession of the land and do with it as you please. When I have paid the land out, if not sold, I will make a deed to it to you, inclose it in an envelope, direct it to you to be mailed in event of death, which would make it sure to you without expense or trouble.”
Nearly one year afterward, and on February 18, 1879, Francis B. French signed a warranty deed for the property to Dudley S. French, and on April 4,1879, acknowledged the deed before S. Michaels, a justice of the peace in said county. The deed also contained the words: “Signed, sealed and delivered in the presence of S. Michaels.” The deed, however, never was in fact delivered. On August 2, 1879, Francis B. French died, in the possession of and owning the land in controversy. During all this time he was a single man, and did not leave at his death any wife or child, or father or mother, but left several brothers, including the plaintiff, Luther C. French, and Dudley S. French. It does not appear that any person, except Michaels and Francis B. French, ever saw the aforesaid deed, or had the slightest knowledge thereof, until about half an hour before French died, when it was found by William Welch, inclosed in an envelope with a letter, in a cigar box, in the drawer of the table, in the house occupied as a residence by French. The following words were indorsed upon this envelope: “This deed to be placed in the recorder’s office at Erie, Kansas, for record, and the accompanying letter to be mailed as per direction thereon.” At the time this deed was found French was speechless and unconscious, and remained in that condition until he died, about half an hour afterward. Welch immediately telegraphed to Dudley S. French, who resided at Clinton, Illinois, and French came to Kansas, arriving on August 4, 1879, at the place where Francis B. French died. Shortly afterward, Welch delivered to French the aforesaid deed. This is the first time that French ever saw the deed; and he never heard of it until after the death of Francis B. French. On August 6, 1879, Dudley S. French filed the deed for record in the office of the register of deeds of Neosho county. Dudley S. French then took possession of the land and remained in the possession thereof until he sold the same to John Stone, the plaintiff in error. Dudley S. French was a brother-in-law to Stone, and for a time lived at his house. He was weak in body and in mind, and a part of the time could scarcely dress himself. On June 10, 1882, he sold and conveyed this land by warranty deed to Stone, for the expressed consideration of $2,000, but for the real consideration of only $800. He was a single man at the time. The land was worth about $3,000. Stone at the time did not know that there was any infirmity in the title of Dudley S. French, and for the purposes of this case he must be considered as in fact a bona fide purchaser, whatever the law may be. The deed from Dudley S. French to Stone was recorded on June 16,1882. At some time during the summer of 1882, Stone took possession of the land, and has remained in the possession thereof ever since. This action was commenced on October 16, 1884. All the heirs-at-law of Francis B. French, including the plaintiff below, Luther C. French, and Dudley S. French, were made parties to the action; so also were the defendant, John Stone, and S. Michaels, and others. Dudley S. French died' on January 7, 1885, after this action was commenced but before the trial was had.
It is conceded by all parties that John Stone is entitled to one-seventh of the land in controversy — that amount being admitted to be the share inherited by Dudley S. French from Francis B. French, but Stone claims that he is entitled to all the land; and whether he is entitled to only one-seventh thei’eof, or to all the land, is the only substantial question involved in this case. The principal questions presented by counsel to this court are as follows: (1.) Was the deed from Francis B. French to Dudley S. French ever delivered so as to make it a valid deed ? (2.) If not, then is Johu Stone for any reason entitled to more than one-seventh of the land in controversy ?
There is no room for even a pretense that the deed was ever in fact delivered to Dudley S. French, or to anyone else; and there is scarcely any room for even a pretense that it was ever in law delivered. The only grounds upon which it is claimed that it was ever delivered, are the letter of Francis B. French to Dudley S. French, dated March 1, 1878; the indorsement on the envelope found in the cigar box, on August 2, 1879; and the words contained in the deed, to wit: “Signed, sealed and delivered in the presence of S. Michaels.” Now it may be conceded that these things constitute some evidence of a delivery, but when it is shown conclusively by the other evidence that there was no delivery, these things can have no force. Besides, the letter itself shows that there was no present intention on the part of Francis B. French of conveying the land, or delivering a deed, to Dudley S. French. And it also shows that Francis B. French contemplated that he might before his death sell the land to some other person. Francis B. French never had any intention of conveying the land immediately, but it Aras ahvays his intention, unless he sold the land, to retain the title thereto in himself as long as he lived, and to let the property go to Dudley S. French only after his death. This does not constitute a delivery of a deed, or a conveyance of the land. Of course there are cases where it is not necessary that there should be any actual manual delivery of the deed. A recording of the deed is sometimes considered as a delivery. So also is a delivery to a third person sometimes considered as a delivery to the grantee. And where a deed is executed by a father to an infant child with the intention that the title shall immediately pass and vest in the child, and the father retains the custody of the deed as the natural guardian of the child, the title may pass. But. none of these cases is the present case; nor is the present case anything like them. Dudley S. .French was not an infant, and although he was a man of weak mind, yet he Avas not non compos mentis. The deed was not delivered or recorded by Francis B. French, nor during his lifetime, and he never had any intention that the title should pass until after his death, The deed never was a deed in law, and Dudley S. French never had any right to it; nor had he any right to have it recorded; nor did it convey any title, interest or estate to him. It Avas not merely voidable, but it was absolutely void. The court of appeals of NeAV York uses the folloAving language:
“A rule of law by Avhich a voluntary deed executed by the grantor, aftenvard retained by him during his life in his own exclusive possession and control, never during that time made known to the grantee, and never delivered to anyone for him, or declared by the grantor to be intended as a present operative conveyance, could be permitted to take effect as a transmission of the title, is so inconsistent with every substantial right of property as to deserve no toleration whatever from any intelligent court either of law or equity.” (Fisher v. Hall, 41 N. Y. 421, 422. See also Burton v. Boyd, 7 Kas. 17, 31 et seq; Huey v. Huey, 65 Mo. 689.)
Taking this view of the case, John Stone obtained no title from Dudley S. French, for Dudley S. French had none whatever to convey. This is unlike a case where a deed is only voidable, and a bona fide purchaser obtains title from the holder of the same without any notice of its infirmity. In such a case he may obtain a good title, but where the deed is absolutely void he cannot. It seems to be admitted that if the deed were forged, no person could obtain any title under it, however innocent he might be; but a forged deed is no more void than this deed. Both in this respect are precisely alike; both are equally void, and neither the record of a forged deed nor the record of an absolutely void deed can be invoked to support or bolster up a disputed title; for the record is worth no more than the original deed itself. It is only instruments that have some validity, and that may in some manner affect real estate, that can be recorded legally. There is no statute authorizing the recording of a void instrument, and it is an error to suppose that the statutes can have the effect of making valid an absolutely void instrument by permitting the void instrument to be recorded. The instrument is still void, although recorded. The record can give it no validity. As tending to support the view that a purchaser of real estate from a person holding under a void x # ° recorded deed, although iu fact a bona fide purchaser, cannot obtain a good or valid title, or indeed any title, we refer to the following authorities: Everts v. Agnes, 6 Wis. 453; Tisher v. Beckwith, 30 id. 55; Chipman v. Tucker, 38 id. 43; same case, 20 Am. Rep. 1; Van Amringe v. Morton, 4 Whar. (Pa.) 382; Smith v. South Royalton Bank, 32 Vt. 341; Harkreader v. Clayton, 56 Miss. 383; Berry v. Anderson, 22 Ind. 37, 40. The case of Lewis v. Kirk, 28 Kas. 497, 505, has no reference to void deeds, or to the record of void deeds.
A deed not delivered at all is a very different thing from a deed actually delivered, even though the delivery of the same may have been procured through fraud; and a deed not delivered, but wrongfully in the hands of the apparent grantee, without fault or negligence on the part of the owner of the land, is unlike a deed not delivered, but which, through the fault or negligence of the owner, has been permitted to get into the hands of the apparent grantee. In the present case the deed was never delivered, and was not permitted to get into the hands of Dudley S. French, the apparent grantee, while Francis B. French was the owner of the land; but after Francis B. French died, and after the title to the land had passed from him to his heirs, the deed did get into the hands of Dudley S. French, the apparent grantee, but not through any fault or negligence on the part of the heirs, who were then the owners of the land.
Other points are raised in this case, but they are technical and unsubstantial, and require no comment. To reverse the judgment of the court below for any of them would be a violation of the spirit of the civil code, and especially of §§ 140 and 304. We think no substantial error has been committed in this case; and it is unnecessary to prolong this opinion.
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
Johnston, J.:
On the 21st day of February, 1881, Charles L. Flint brought an action, in the district court of Anderson county, against Dulany & McVeigh, William Wickel, and a number of other persons; and in his petition he alleged that he was the owner of several tracts of real estate in Anderson county; and that he held them by virtue of certain tax deeds which had been executed by the county clerk of that county, which deeds had been duly recorded. He averred that the defendants claimed some title or interest in the lands, and that the action was brought to quiet his title to the lands as against each and all of the defendants. An affidavit was filed on behalf of the plaintiff, alleging that each of the defendants resides out of the state of Kansas; that service of summons could not be made on them within the state; and that the action was brought for the purpose of determining the right and interest of the plaintiff in real property. On this affidavit, service was made by publication; and on the 13th day of September, 1881, default being made by the defendants, a decree was rendered quieting the title to the lands mentioned, in the plaintiff, and barring the defendants from setting up any title, estate, or interest to them. On September 4,1884, and within three years after the decree had been entered, William Wickel filed a motion asking that the judgment and decree rendered against him on September 13,1881, be opened up, and that he be let in to defend, for the reason that there was no service other than by publication in a newspaper, and that he had no actual notice of the pendency of the action in time to appear and make his defense. Notice was given to the plaintiff, an answer was filed, and proof made of the statements made in ■the motion; and thereupon the court, both parties being present, sustained the motion by opening the judgment and allowing Wickel to defend. No exception was taken to this order. The answer filed by Wickel was, first, a general denial of the allegations contained in the plaintiff’s petition. He further answered, by alleging that at the-time of the rendition of the decree in the action he was the owner of the south half of the northeast quarter of section thirty-four, township twenty-one, range twenty-one, situate in Anderson county; that the lands were wild and unimproved, and had never been in the actual possession of the plaintiff; that the tax deed and the proceedings upon which it was based were void; that the sale was made for taxes not authorized by law; that the sale upon which the tax deed was executed “ was made while and when there was an open sale of said lands for taxes to said Anderson county, which had not been redeemed from, and that the certificate thereof had not been assigned; and that the taxes for which said lands were sold, and upon which sale said tax deed was issued, were subsequent to said open sale to the county, the certificate of which had not been assigned.” For a further answer and cause of action, the defendant alleged that the plaintiff", after procuring the judgment and decree which was based alone on service by publication in a newspaper, had sold the land; and that the same was reasonably worth the sum $480. He prayed judgment against the plaintiff, declaring his tax deed void, and that he had no claim or lien on the land; and also for a recovery from the plaintiff of the sum of $480, the value of the land sold by plaintiff under the judgment and decree which had been vacated. The plaintiff demurred to the answer, upon two grounds: First, that the causes of action therein were improperly joined; and, second, that the facts stated were insufficient to constitute a cause of action, or a defense. The demurrer was overruled by the court, and a trial had, which resulted in a judgment and decree in favor of the defendant. The plaintiff brings the case here upon a transcript of the record, relying for error mainly on the rulings of the court upon the demurrer.
The answer which is challenged by the demurrer sets forth several grounds of defense to the plaintiff’s action, which was simply one to quiet title. The ground of demurrer that the answer or cross-petition did not state facts sufficient to constitute a cause of action or a defense, was general, and not directed against any particular defense. If, therefore, any one of the defenses is good, the demurrer was properly overruled. The general denial of the answer of itself constituted a complete defense, and furnished sufficient reason for the ruling of the court on that ground of demurrer. Apart from this, it was substantially averred in the answer that the plaintiff’s tax deed under which he claimed was void because it was based on a sale made after the land had been bid off for the county and before it had been redeemed, and also before the certificate of sale to the county had been assigned. This also constituted a defense, as the statute prohibits the sale of land bid off for the county at a tax sale until it has been redeemed, or shall be sold by the county, or the tax certificate which had been issued to the county has been assigned. (Tax Law, §122.) The argument that the allegation is defective because it fails to state that the sale to the county was a valid one is not well founded. The unqualified statement that the sale was made implies that it was a complete and valid one; but the fact that the general denial constituted a good defense effectually disposes of that ground of demurrer.
The other exception is the alleged misjoinder, where the defendant set forth a sale of the land by the plaintiff after the judgment was entered in his favor, and before it was vacated. It is averred that the laud was and is reasonably worth $480, and he asks a judgment against the plaintiff for that amount. The original judgment was properly vacated by the court, under § 77 of the code. It appears to have been rendered without other service than by publication in a newspaper, and the application having been made within the proper time, and it having been satisfactorily shown that the defendant had no actual notice of the pendency of the action, the defendant was entitled to have it vacated. On its face, the judgment that was vacated was a valid one, and hence the title to the land sold could not be disturbed or affected by the vacation, or by the proceedings in the case subsequent to the vacation. (Code, §77; Ogden v. Walters, 12 Kas. 295.) The plaintiff therefore became liable to the defendant for the value of the land, and the only question remaining is, whether this right of relief could be obtained in the action. We do not regard the exception to be well founded. The policy of our code is to avoid a multiplicity of suits, and to settle in one action the whole subject-matter of any controversy between the parties. In addition to general and special denials, the defendant may set up any new matter constituting a defense, counterclaim, set-off, or right to relief, concerning the subject of the action. (Code, §§ 94, 95.) With respect to joinder of actions, it is provided that causes of action may be joined where they arise out of the same transaction, or “transactions connected with the same subject of action.” (Code, §83.) In the count objected to, the defendant sets forth a right to relief concerning the subject of the action; and the transaction upon which he relies for a recovery is directly connected with the subject of the action. The principal controversy, or subject of action, was the land which the plaintiff sold under the judgment first obtained. He claimed to be the absolute owner of the land by virtue of a tax deed, and he asked to have the pretensions or adverse claims of the defendant held void; and upon constructive service, he obtained a judgment and sold the land. The defendant procured the judgment to be vacated, as he had a right to do, and after being let in to defend, alleged in his answer that the title set up by the plaintiff was invalid, and he asked the court to so declare. The laud sold by the plaintiff was in fact the subject of the action, and the title to which cannot under the statute be disturbed by the opening of the judgment. The transaction out of which the defendant’s right arose is not only connected with the subject of the action, but it arose on a sale óf what forms the subject of the action under the judgment rendered in the action itself. There is no repugnance or inconsistency in the several grounds of defense set out by the defendant, and the new matter alleged affects all the parties and no others, and the defendant’s right to relief thereon seems to be properly and necessarily involved in the complete determination of the controversy. The fact that the defendant’s right to relief arose after the petition was filed, does not support the claim of misjoinder. The statute is not only liberal in the allowance of - amendments, but it expressly provides that a supplemental petition, answer or reply alleging facts material to the case, occurring after the former petition, answer or reply, may be filed, upon notice, and upon such terms as the court may prescribe. (Code, § 144.)
We find no error in the record, and will therefore affirm the order and judgment of the district court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding in habeas corpus. H. M. Beardsley obtained a writ from this court upon the representation that he was'unlawfully restrained of his liberty by W. H. Layne, the sheriff of Cherokee county, upon a mittimus issued by Ira Heaton, a notary public of the same county. The mittimus was issued for an alleged contempt in not producing four letters which Beardsley had in his possession while giving his deposition before the notary. The deposition was being taken in a case pending in the circuit court of Jackson county, Missouri, wherein the Bank of Columbus was plaintiff, and John N. Ritter and L. L. Doubleday, partners as Ritter & Doubleday, were defendants. The action was based on the breach of a contract made between the parties whereby the bank sold all its property and assets to Ritter & Doubleday, and under the terms of which the parties bound themselves, each in the sum of $5,000, for the faithful performance of the contract. S. L. Conklin, the president of the bank, signed the contract, and principally conducted the negotiations; but after the contract had been made, and before it had been reduced to writing, he was compelled to be absent, and he called in R. R. Conklin to complete the contract, which was done on September 1, 1887. Subsequent to that time, R. R. Conklin wrote the letters in question to S. L. Conklin, and which came to the hands of H. M. Beardsley as the attorney of the bank.
Several reasons are urged why the petitioner should be discharged, among which are the incompetency of testimony, and also the want of power in the notary public to compel the production of the letters. It is clear that the letters were inadmissible as testimony in the action. They were but the declarations of an agent after his agency had terminated. The extent of the agency was to close up the contract upon which the action was brought. What was said or done by him after that time cannot bind the bank. A declaration made while acting for the bank, respecting the contract, and explanatory of his acts, might be treated as so far a part of the res gestee as to be admissible, but what was subsequently said or written by R. R. Conklin was mere hearsay. If he has knowledge of material facts, his testimony can be taken, but his unsworn assertions relating to the contract, after his agency ceased, are not testimony. Before his declarations can be held binding upon the bank, it must appear that he was acting, within the scope of his agency, and that the statements made in the subsequent letters formed a part of the res gestee. (Greer v. Higgins, 8 Kas. 522; Donnel v. Clark, 12 id. 154; 2 Wharton on Ev., §1173; Packet Co. v. Clough, 20 Wall. 540.) R. R. Conklin resides within the jurisdiction of the court trying the cause, and therefore may be called as a witness, and required to state under oath all the facts connected with the transaction; and this is true of the petitioner. We cannot allow the petitioner to remain imprisoned for failing to produce letters which the court would not receive in testimony, and the production of which the notary had no right to require.
On the other point it is urged that if the letters had been competent evidence the. notary had no authority to compel itheir production. The testimony when taken, as we have seen, was for use in the circuit court of Missouri. The depositions were taken by the notary under a general notice, and not upon a commission from that court. It seems that the laws of Missouri provide that if parties desire the testimony of a witness residing out of the state, they must sue out .of the court in which the suit is pending a commission to take his deposition. The only exception to this rule that we have observed is, that a deposition may be taken by an outside officer who has been appointed by authority of the laws of Missouri to take depositions without a commission. The notary here had no appointment under the laws of Missouri, and it is contended that no provision has been made by the legislature of Kansas for officers of this state to take depositions to be used in another jurisdiction, as has been done in many other states, and also by congress. It is therefore said that the notary had no authority from any source to compel the attendance of witnesses or the production of papers. On the part of the respondent it is said that the notary acquires jurisdiction from the notice, and that he has the inherent power by virtue of his office and under principles of comity, to do what has been done. But the competency of the witness and the admissibility of his statements, or of papers produced by him, are questions which must ultimately be controlled by the laws of Missouri and by the Missouri court. If it is granted that the notary had the authority to act, and it is' derived from the laws of Missouri, it would seem that no more authority could be exercised by him in Kansas than can be done by a notary in Missouri; and it is expressly held in that state that a notary public has no power to commit a witness for refusing to produce books and papers under a subpoena duces tecum. (Ex parte Mallinkrodt, 20 Mo. 493.) However, we need not and will not now determine that question, but will rest our decision on the incompetency of the testimony sought to be produced. The prisoner will be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This proceeding has been brought to reverse an order made to enforce the judgment rendered in the action between the parties hereto, and which judgment we have just affirmed. (Bentley v. Brown, just decided.) The only question presented is, whether the action of Mary F. Brown upon which the judgment was rendered is one “arising on contract for the payment of money only,” within the meaning of § 555 of the civil code. That section reads:
“ In an action arising on contract for the payment of money only, notwithstanding the execution of the undertaking in the last section mentioned to stay proceedings, if the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judgment. Such security must be an undertaking executed to the plaintiff in error, by at least two suffi cieut sureties, to the effect that if the judgment be reversed or modified he will make full restitution to the plaintiff in error of the money by him received under the judgment.”
We think the action in question belongs to the class mentioned in the foregoing section. It was brought by the plaintiff therein to recover money that had been paid to the defendants for her, and which it was admitted by all belonged to her. The fact that the money came rightly into their hands as her attorneys does not affect the determination of this action, as there was an implied obligation or contract that they would pay the money to her upon demand. No distinction is made in this statute between express and implied contracts, and the terms employed are such as to fairly include implied contracts, providing they are for the payment of money only. (Water Power Co. v. Brown, 23 Kas. 695.) It is true that their counterclaim involved more than the contract for the recovery of money, but the action of Mary P. Brown rested wholly on a contract for money only, and upon that contract she recovered. The judgment sought to be reversed was a recovery upon her cause of action, and not upon their counterclaim. The mere fact that the amount of her recovery was somewhat reduced by an allowance upon their claims for legal services does not change the nature of the cause of action upon which the judgment was rendered, nor does it debar her from the privilege afforded bythe section quoted. We cannot say that there was any abuse of discretion in granting the order, and therefore it must be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only errors complained of in this case are: First, that the court erred in refusing to allow the defendant to introduce in evidence the township record, tending to show a location and establishment of a public road through plaintiff’s land in 1859; second, the court erred in refusing to admit in evidence the record of the county clerk, tending to show the location of a public road over a part of the plaintiff’s land in 1868; and third, that the judgment-ought to have been for the defendant below instead of for the plaintiff. The statute under which this appeal was taken is as follows:
“Sec. 7. It shall be the duty of the viewers, at the same time that they make their report of the view, to make also a separate report to the county commissioners in writing, stating the amount of damages, if any, by them assessed, and to whom. They shall also be required to submit with such report the written application on which assessments have been made. All allowances for damages, as provided in this act, shall be subject to revision by said board of county commissioners, and any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decision of the said board of county commissioners to the district court, upon the same terms, in the same manner, and with like effect as in appeals from judgments of justices of the peace in civil cases.” (Comp. Laws of 1885, ch. 89, §7.)
Under this provision the only thing that the district court had jurisdiction to hear and determine was, the amount of damages plaintiff was entitled to; nothing else. The location and establishment of the road was final when it was located and established by the board of county commissioners. Then only such testimony as tended to establish or show the damages of the plaintiff was competent. The proceedings before the county commissioners were the regular proceedings to establish a public road. A petition had been presented; publication had; viewers appointed; notice to laud-holders given; the viewers met, together with the surveyor, and surveyed and located the road; they heard claims for damages, and made awards of damages, and allowed the plaintiff ten dollars. Their report was properly made to the board of county commissioners; the commissioners confirmed their report, and allowed the plaintiff the same damages awarded by the viewers. From this award of damages he appealed.
The evidence sought to be introduced to show, or tending to show, that a road had been established over this same route by the county some years before, was not competent for the purpose of showing the amount of his damages. The county was treating this matter as if no road had ever been located there. Whatever proceedings had taken place prior to that time the county commissioners were entirely ignoring; they were saying to the defendant, We are about to locate and establish a road over your land, and if you claim damages you must present your claim. And after the county board has done this, it cannot be heard to say, A public road is already established over this same route; and therefore the plaintiff is not damaged. Such a claim would be proper if this was an application to compel the plaintiff to open a public road which it was alleged he had obstructed or closed up. The evidence clearly shows that the plaintiff was entitled to at least the amount found by the court.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the' Justices concurring. | [
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Opinion by
Holt, C.:
The defendant makes a number of assignments of error, and they are all properly raised by the demurrer to the plaintiff’s evidence, and objections to the instructions given; by exceptions to the instructions asked and refused, and by motion for judgment on the findings for defendant, and motion for a new trial. Before we proceed to examine them in detail, we will state that the first ground of negligence alleged by plaintiff has no support whatever under the evidence introduced. It appears that the “ odds and ends ” of the timber cut at other saws in the shop were brought to plaintiff’s form or bench, and that he was to pick out therefrom. such pieces as he thought could be worked to advantage. It was his duty to select such pieces as he thought fit, and reject those pieces that he thought unfit for use. This duty was given to him alone. He testified, and it is undisputed, that he examined the block, and supposed it to be suitable for use in making truss-rod blocks, and that the splinter or sliver that became dislodged from the block in sawing could not have been seen by an examination of the block. Certainly under this statement of facts there was no negligence of the company nor of the plaintiff. The findings were in keeping with the evidence.
The second ground of negligence — that the saw was defective — is partially supported by the testimony, but it is fairly established by the evidence that such defect did not contribute to the injury of the plaintiff. In this connection we call attention to the following:
“28. Did the condition of the saw which plaintiff was using at the time of the accident contribute in any manner to his injury? Ans.: It might, or it might not.
“29. If you answer the last question in the affirmative, please state fully how it so contributed. A. -.”
“34. Would not the sawing off of a wedge-shaped sliver from a block of wood similar to the one which was sawed off at the time of plaintiff’s injury probably throw said block from the saw by driving said wedge-shaped sliver between the saw and the block, even if the saw was in perfect condition, or new ? A. Probably it would.”
Under the evidence and answers to the questions and the failure to answer, we are safe to say, for the purposes of this case, that the alleged negligence of the defendant in regard to this saw did not contribute to the injuries of the plaintiff. This leaves us now to examine the third ground of negligence; that is, the defects in the machine or table in which the saw was placed. The defendant urges with great force that the railroad law of 1874, relating to damages to employés of the railroad company, caused by the negligence of coémployés, is not applicable in this case. The defendant claims that the rule applies only to the hazardous work of railroading; that it does not apply to that part of the defendant’s work which was carried on in its car shops; claiming further, that the fourteenth amendment to the constitution of the United States forbids any distinction as to liability in the same kind of employment ; that there should be no greater liability on the part of a railroad company for injuries to an employé, caused by the negligence of its coemployés while manufacturing cars, than there should be in the same business if it was carried on by a company not engaged in railroading, and cites: C. R. I. & P. Rly. Co. v. Deppe, 36 Iowa, 52; Santa Clara Co. v. Southern Pac. Rly. Co., 118 U. S. 394; Phila. Fire Association v. New York, 119 id. 120. We think it is unnecessary to discuss this matter, under the evidence in this case. If there is any negligence shown in this case upon which the plaintiff may recover, it is about the form or machine in which the saw was placed that cut off the hand of plaintiff. It was the duty of the defendant to provide its employés with machinery and appliances for the service required, suitable for its efficient and reasonably safe performance, and if it failed in that respect, it was liable to its servants as it would be to a stranger. This defendant had assigned to Mr. Cook and his assistant, Mr. Young, the duty of inspecting the machinery and providing new when necessary, and seeing to it that such machinery was kept in a suitable condition. While g0 engage about famishing and repairing the tools and machines in the car shop, we believe they were standing in the place of principal to this plaintiff, rather than his fellow-servants. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kas. 412; A. T. & S. F. Rld. Co. v. Moore, 29 id. 632; K. P. Rly. Co. v. Little, 19 id. 267; C. & M. Rld. Co. v. Ross, 112 U. S. 377; Brabbits v. C. & N. W. Rly. Co., 38 Wis. 289.) As shown by the testimony, Mr. Young had known of the defects of this machine or table for some time, and had repeatedly repaired or fixed it. The plaintiff had complained of the defects only a day or two before the accident occurred, and Mr. Young had attempted to repair it, but had not done so substantially, as is shown by the findings of the jury. It is however claimed by defendant, that the plaintiff knew as much about this machine as the defendant, especially as Mr. Young, the agent of the defendant, and that because he kept on at work at the machine after he knew of such defects, he was guilty of contributory negligence, and therefore could not recover. We think that the testimony does not support this contention. Mr. Young promised the plaintiff Saturday night that he would repair this machine; he did repair it partially, and told plaintiff Monday morning that it was repaired and all right. Plaintiff had the right to rely upon the statement of Mr. Young, and to proceed with his work under such statement. It did work all right with a small saw in light timber at first, Monday morning, under plaintiff’s hands. The first notice that plaintiff’ had of its vibrations or wabbling Monday morning, was when he commenced sawing the block upon which his hand was injured. Some party whom the evidence fails to disclose, went to the machine and did some sawing in the plaintiff’s absence. Whether during the sawing by this unknown party the mandrel became loosened or the machine unsteady, we can only surmise; when plaintiff left it it seemed to be steady and firm, and as soon as he returned and commenced to saw with it it vibrated. But this conclusion can be safely drawn from all the testimony, and the findings of fact of the jury, that the repairs made by Mr. Young on Saturday night were either not thorough or substantial, or the machine was in such a condition that if the tightening of the screws had been thoroughly done, such repairs did not materially remedy the defects complained of by plaintiff.
It further appears in evidence that some time after the plaintiff had left the shop, something was attached or affixed to the machine to make it steady. It is in evidence that Mr. Wilcox, who took the machine or table some time after plaintiff was injured,, complained that the saw “sawed all over the timber,” and these additions or repairs, as the jury found, were made at the suggestion of Mr. Wilcox. The defendant claims that the admission of such testimony was error, and in this connection complains of the instructions given by the court in reference to such repairs. We will here state that if the evidence was properly admitted, the form of an instruction given by the court covering this testimony was certainly correct. We shall not here discuss the question of whether evidence showing that repairs have been made upon a machine at which an accident has happened, shortly after it occurred, is competent to show that such machine was unsafe at the time of the accident. This court has examined and , . discussed this matter, and it appears to be the settled law of the state to admit such evidence. (A. T. & S. F. Rld. Co. v. Retford, 18 Kas. 245; City of Emporia v. Schmidling, 33 id. 485; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412; City of Abilene v. Hendricks, 36 id. 196.) We therefore believe the testimony was admissible to establish the fact of the defect in the machine at the time of the injury.
The further question now arises, and one of considerable difficulty in determining, whether this defective machine was the cause of the injury to the plaintiff. We call attention to the findings, and to the general verdict for the plaintiff. It will be remembered that all these special findings were submitted at the request of the defendant, and none of them are in conflict with the general verdict, and many of them tend to sustain and uphold it; and further, whether this injury of the plaintiff was an accident, or the result of the defective condition of defendant’s machine, was submitted to the jury; by their verdict we may safely infer that they found it was caused by the negligence of the defendant, rather than by an accident. There is testimony to sustain the verdict, and we do not feel at liberty to disturb it. From the evidence, we believe the jury were authorized to find that this injury was the result of the negligence of the defendant in failing to furnish a proper machine for plaintiff to work upon.
The defendant also complains of a part of the court’s instruction number five, which reads as follows:
“ . . . And it is the master’s or employer’s duty to maintain such supervision and care respecting all tools, machinery and' appliances used by his servants or employés as may be necessary to continue them in safe condition for use; and if he fails to do so he is liable for injuries arising from his neglect.”
It contends that the word “safe” in the instruction should have been qualified by “reasonably,” or some word or phrase showing that it was defendant’s duty to have its tools and machinery in an adequately safe condition, and says that when the word “safe” was used in the connection it is in this instruction, without any limitation or qualification, it would make the defendant an absolute guarantor of the safety of its machinery. It is admitted that the rule is correctly laid down in other parts of the instructions of the court, and in passing we wish to say that it is very fully, plainly and clearly stated, with the exception of this one portion of the instruction. The proper qualifying word was evidently inadvertently omitted by the court. The sentence immediately preceding this instruction is:
“ . . . And the master or employer must exercise reasonable and proper vigilance to see that the machinery employed is in proper condition for the purposes for which it is being used; and it is the master’s and employer’s duty,” etc., etc.
And in the seventh instruction:
“You are to determine from the evidence the facts respecting the condition of the saw and table and appliances constituting the machine at which the plaintiff was engaged when hurt, whether the same or either was in good condition and reasonably safe, or whether either was out of repair, defective, or dangerous.”
The defendant contends, however, and with reason, that where the law is given properly in an instruction, and in another place improperly, it may fairly be presumed that the jury were misled by that portion of the instruction which er roneously stated the law. While such is the rule, yet we would hesitate to carry it to the extent to apply it to the instructions of the court, when the instructions requested by the parties are all refused, and the charge to the jury is given as a whole, connectedly, and almost in the immediate connection and within the same subdivision of the instruction the court lays down the rule plainly and correctly. The duty of the defendant is so plainly given elsewhere that we should hesitate to decide the omission of the qualifying word in this instance would be error sufficient to require a reversal and a retrial of the case. In this action, under the findings, such instruction could not have materially prejudiced the defendant, as the jury found this machine defective and out of repair. This action was evidently not tried on the theory that this machine was safe and perfect. Finding number sixteen, submitted at the request of defendant, asks whether the plaintiff noticed any defect in the machine prior to the time of his temporary absence from the same; and immediately following, “When did plaintiff first notice on Monday that the machine was defective, or not working properly, if at all?” The main contention in this case is not whether the machine was safe, but, being defective, whether the plaintiff was guilty of contributory negligence in using it, and especially whether its defects caused the injuries plaintiff sustained. It is reasonable to infer from the testimony and findings that the machine was defective, out of repair, and unsafe.
The defendant asked, and the court refused to instruct the jury, that—
“ Where the danger of using defective machinery is so great that a man of ordinary prudence would not continue to use it, if a servant continues to use such machinery, or instrument, even after an express promise of the master, he would still be guilty of contributory negligence, and could not recover.”
This instruction could not apply to the defective machine or form which held the saw. Plaintiff did not continue to use the same because of any promise of the master to repair it, but did go to work at it upon the day of the accident, because he was told that it had been repaired since he last used it. He then had a right to assume that all repairs necessary to remedy the defects complained of had been made. We believe no material error was committed in the trial of this action, and therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Meyer, J.:
This is an appeal from the trial court’s decision holding Danny D. Yoder, appellant, in indirect contempt of court on the basis of his interference with parental custody and his failure to pay child support. On appeal appellant disputes whether indirect contempt is a proper remedy in this action and in addition questions whether his ex-wife, Janice D. Yoder, appellee, is a proper party plaintiff. According to the record, the Secretary of Social and Rehabilitation Services (S.R.S.) was also a party.
On February 28,1973, Danny and Janice Yoder were divorced in Sedgwick County, Kansas. Appellee was awarded sole custody of the parties’ three minor children and appellant was awarded visitation and ordered to pay . $200.00 per month child support.
In August 1984, the parties’ minor child, Lori Yoder, then age fourteen, became pregnant by Michael Johnson, then age seventeen. When informed of Lori’s pregnancy and of her desire to marry Michael Johnson, appellee refused Lori further contact with her boyfriend and requested Lori seek an abortion.
A few days prior to September 20, 1984, Lori Yoder disappeared from appellee’s care. Unbeknownst to appellee, Lori and Michael Johnson had driven to Miami, Oklahoma, to be married. When the minor children discovered parental consent was required before they could be married in Oklahoma, Michael Johnson phoned his father in Eureka, Kansas, who in turn phoned appellant.
Without contacting appellee, appellant drove to Miami, Oklahoma, where he and the father of Michael Johnson each gave written consent for their minor children to be married. On September 20, 1984, Lori Yoder and Michael Johnson were married in Miami, Oklahoma.
On October 1, 1984, appellee filed an affidavit and accusation in contempt against appellant alleging that appellant, by virtue of his giving consent to their minor child Lori’s marriage, had interfered with her sole parental custody of the child. Appellee further sought to have appellant found in contempt for failure to pay child support since the divorce of the parties in 1973.
Defendant countered by stating that the award of sole custody of a child to one parent does not sever the right of the noncustodial parent to consent to the marriage of any of the parents’ minor children. Appellant also stated that appellee was not the proper party to bring a contempt proceeding against him because appellee, in order to receive aid to dependent children, had assigned any and all accrued, present or future right to support to the Secretary of S.R.S.
The district court found appellant in indirect contempt on both issues. Regarding interference with parental custody, the court concluded that appellant had abandoned his family and thus had forfeited his right to make decisions affecting his minor children independent of appellee, the custodial parent. The appellant was thereafter sentenced to confinement in the Sedgwick County jail for a period of six months, or until such time as appellant purged himself of that contempt. Appellant was advised he could so purge himself by taking whatever legal steps were necessary to withdraw his consent to his daughter’s marriage, or by proceeding to have her marriage annulled.
Regarding contempt for nonpayment of child support, the court found that appellee’s assignment of her child support payments to the S.R.S. did not bar her from being a proper party to prosecute proceedings for nonsupport. Appellant was sentenced to ninety days in the Sedgwick County jail, said sentence to run concurrently with that imposed for interference with parental custody. As with the prior decision, the court granted appellant the right to purge himself from this contempt citation by paying at any time the full amount of child support in arrears.
Appellant first contends that the trial court erred in holding him in indirect contempt for interfering with the custody order arising out of the 1973 divorce. Appellant argues the giving of his consent to his minor daughter’s marriage was statutorily permissible and that he therefore cannot be held in indirect contempt. We believe the appellant is correct and therefore reverse the trial court’s decision holding him in indirect contempt on those grounds.
Indirect contempt is a proper proceeding and remedy in any civil action in which “an order” of a court has been violated. K.S.A. 20-1204a. If appellant acted within the scope of his parental rights as determined by Kansas law, he cannot be held in indirect contempt because he cannot be said to have violated any order.
In the present case, appellant acted within his parental rights in giving his consent to his minor daughter’s marriage. Under Kansas law, a person under the age of 18 years must obtain the consent of his or her “father or mother” before that person can marry. K.S.A. 23-106. Under Oklahoma law, the law which governs the validity of the marriage involved herein, a similar statutory provision requires a female who is under the age of 16 years and pregnant to have the consent of “a parent” before getting married. Okla. Stat. Annot. tit. 43 § 3 (West 1979).
There are no specific Kansas cases on this point. However, we believe that the appellant acted well within his parental rights in consenting to his minor daughter’s marriage. The Kansas legislature has clearly stated its policy by allowing either a “father” or a “mother” to consent to a minor’s marriage. K.S.A. 23-106. The statute does not distinguish between custodial and noncustodial parents. The statute does not require that the consenting parent be a joint or sole custodian of the child. Had the legislature wished to do so, it could easily have made such a distinction. Rather, it is clear the consenting parent may merely be a “father” or a “mother.” There is no dispute that the appellant is the father of his minor child. Therefore, we conclude the appellant exercised his statutorily permitted parental rights in consenting to his daughter’s marriage.
We believe this is especially true under the facts of this case. While the child was living with her mother, she became pregnant by her boyfriend. Appellee wanted her daughter to have an abortion and she refused to do so. The child left home and contacted the only person who could help her get married, her father. Appellant never approached his daughter to entice her away; she came to him. Appellant did not actively seek to violate the custody order. Rather, he acted passively in merely giving his consent to his daughter’s marriage, which he was statutorily permitted to do. For this the appellant cannot be held in indirect contempt.
Appellee contends, however, that the appellant’s consent violated the prior court order vesting appellee with sole custody of their daughter. Appellee’s argument is without merit. An order of sole custody does not deprive the noncustodial parent of all his or her parental rights. Rather, it is clear that a noncustodial parent retains the right of visitation, K.S.A. 1985 Supp. 60-1610(a)(4)(B); the right to inherit from the child, K.S.A. 59-507; the right to grant consent to an adoption, K.S.A. 1985 Supp. 59-2102; and, as we hold now, the right to consent to a minor child’s marriage, K.S.A. 23-106.
The appellant’s parental rights were never severed by appropriate action. Therefore, the appellant retained the right to consent to his daughter’s marriage and therefore did not violate any order of the court. Because no order was violated, appellant cannot be held in indirect contempt. K.S.A. 20-1204a.
At oral argument, appellee urges us to conclude that a father who is merely a “biological” father and who has had little contact with his child has absolutely no parental rights with respect to his child. We strongly disagree with appellee’s position and refuse to hold that a mere “biological” father has no parental rights with respect to his children. A parent’s right to the custody, care, and control of his or her child is a fundamental liberty right protected by the Fourteenth Amendment of the Constitution of the United States. In re Stremel, 233 Kan. 136, 142, 660 P.2d 952 (1983); Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981). Although a noncustodial parent’s rights are modified by a divorce and custody decree, he or she still retains certain rights that cannot be disturbed except upon a finding of unfitness. Among those rights is the right to consent to the marriage of a minor child.
Appellant also argues that the trial court erred by ordering that appellant could purge himself of indirect contempt (caused by his alleged interference with the appellee’s parental rights) by taking whatever legal steps are necessary to withdraw his consent to his daughter’s marriage or by proceeding to have her marriage annulled.
Because we have ruled the trial court erred in finding appellant in contempt on that issue, any discussion of the penalty therefor is moot.
Appellant further contends that appellee is not a proper party plaintiff to bring an action for contempt against him for failure to make monthly support payments because appellee’s assignment of the support payments to the S.R.S. is not only an assignment of her right to receive those payments, but also is an assignment of her right to enforce those payments.
The issue of whether a custodial parent who has assigned her rights to child support to the S.R.S. in exchange for aid from federal funds may commence a contempt proceeding against the noncustodial parent for failure to pay child support has not been specifically addressed by Kansas case law. A close reading of the pertinent statutes involved, however, reveals that the assignment of the right to receive child support payments does not preclude the assignor (the custodial parent) from commencing an action to enforce any support obligations which may exist.
K.S.A. 1985 Supp. 39-754® provides that “[i]f the secretary of social and rehabilitation services or the secretary’s designee has on file with the court ordering support payments, a notice of assignment of support rights . . . the secretary shall be considered a necessary party in interest concerning any legal action to enforce, modify, settle, satisfy, or discharge an assigned support obligation.” (Emphasis added.) This legislative language, because it refers to the S.R.S. as a “necessary party” in an action to enforce child support obligations, by negative inference implies that the S.R.S. is not the sole party capable of commencing such an action.
Although the S.R.S. is legislatively authorized to commence an enforcement of support action on its own (K.S.A. 1985 Supp. 39-755), the language in K.S.A. 1985 Supp. 39-754® making the S.R.S. a “necessary party” in such actions would be superfluous were it not true that another existed as a proper party plaintiff. And by the very nature of the proceedings, that other proper party plaintiff must necessarily be the custodial parent, the assignor. Ergo, Kansas statutes indirectly and by negative inference provide authority for the proposition that a custodial parent who assigns her right to support to the S.R.S. in exchange for assistance from federal funds may still commence an action for enforcement of support, the only qualification being that the S.R.S. be joined in the action as a necessary party. See, e.g., Grassi v. Grassi, 8 Kan. App. 2d 610, 611-12, 663 P.2d 312 (1983). As previously noted, the S.R.S. appeared. There is no merit to appellant’s claim of error as to this issue.
In his docketing statement filed with this court, appellant raised the issue of whether the trial court erred in holding the appellant could purge himself of the contempt only by paying the total lump sum of accrued child support. However, neither appellant or appellee has briefed this issue. Therefore, we consider the issue abandoned and will not address it. Steele v. Harrison, 220 Kan. 422, 429, 552 P.2d 957 (1976).
For the above reasons, the trial court’s decision holding appellant in contempt for failing to pay child support is affirmed. The trial court’s decision holding appellant in contempt for consenting to his minor daughter’s marriage is reversed. | [
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Lyle, J.:
Gold Energy Corporation appeals the judgment of the trial court denying its counterclaim which alleges that Cherokee Resources should be liable for its share of a guaranteed royalty payment due under an oil and gas lease. The facts are not in dispute and will be set forth chronologically.
On March 1, 1980, John Haddad, d/b/a H-H-H Oil Company, obtained an oil and gas lease from Stanley Dreher, Jr., and Maxine Dreher. The lease covered a 240-acre tract of land described as follows: The NW 14 and the W Vá of the SE !4 of Section 17, Township 24, Range 19, Allen County, Kansas. The lease clause in dispute provided: “Guaranteed royalty of $2,400.00 per year in the event of production. Any year in which royalty does not equal or exceed $2,400.00 then within sixty (60) days following the end of said year, Lessee shall pay lessor the difference between said royalties and $2,400.00.”
Subsequently, all the property held by H-H-H Oil Company, including the 240-acre oil and gas lease, was transferred to Cherokee Resources.
On November 19, 1982, John Haddad, president of Cherokee Resources, assigned an 80-acre tract of the lease to Ronald Gold, president of defendant/appellant Gold Energy Corporation (Gold). The purchase price for the 80-acre lease was $25,000. Gold paid $10,000 in cash and executed a promissory note for the remaining $15,000.
Gold was granted an option to purchase the leasehold on the remaining 160 acres. However, that option was never exercised and Cherokee Resources retained the rights to that portion of the 240-acre lease.
During the lease year ending March 1, 1982, the landowners, the Drehers, received $479.80 in royalties. Pursuant to the $2,400 guaranteed royalty clause in the lease between the Drehers and Cherokee Resources, Gold paid the Drehers $1,920.20.
The record does not reflect what, if any, royalty payments were made for the 1983 lease year.
During the lease year ending March 1, 1984, the Drehers received royalties in the amount of $697.82. Gold satisfied the guaranteed royalty provision by paying the Drehers $1,702.18.
All the wells on the 240-acre lease were located on the 80-acre tract assigned to Gold. No wells were located on the 160-acre tract retained by Cherokee Resources and, thus, there was no production on that portion of the lease. The record indicates that Cherokee Resources has not paid any of the guaranteed royalty payment since the 80-acre tract was assigned to Gold.
On March 29, 1984, Cherokee Resources filed suit against Gold in Allen County District Court, seeking to recover $2,241.98, the unpaid portion of the $15,000 promissory note plus interest. Defendant Gold filed a counterclaim, contending that Cherokee Resources should be obligated to pay a portion of the guaranteed royalty in an amount which is proportionate to the acreage Cherokee Resources retained. Gold also sought a declaratory judgment to hold Cherokee Resources responsible for its portion of the $2,400 guaranteed royalty payments due in the future, based on the 160 acres retained by Cherokee Resources under the lease.
The trial court entered judgment in favor of Cherokee Resources, based on the promissory note, in the amount of $2,241.98, and denied Gold’s counterclaim, ruling that there was no evidence that the parties entered into an agreement as to which of them should be liable for the guaranteed royalty. The trial court effectively held Gold liable. Defendant Gold timely appeals the denial of its counterclaim.
On appeal, Gold contends that the $2,400 “guaranteed royalty” is actually not a royalty but rather constitutes “rent.” In characterizing the $2,400 obligation as rent, Gold relies upon Kansas cases which define royalties as “that part of oil and gas payable to the lessor by the lessee out of oil and gas actually produced and saved.” (Emphasis added.) Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 2, 642 P.2d 75 (1982). See Lathrop v. Eyestone, 170 Kan. 419, 424, 227 P.2d 136 (1951). The lease agreement provides that the Drehers, as lessors, are to receive as royalty one-eighth (Va) of all the oil produced and saved from the leased premises. Gold argues that any payment made to the Drehers above the one-eighth royalty cannot be deemed a royalty because it does not come from oil which is actually produced. Gold contends that the $2,400 constitutes rent of $10 on each acre of the 240-acre lease.
Having designated the obligation as rent, Gold argues that the rent should be apportioned between Cherokee and Gold pursuant to the proportionate rent clause contained in the lease which provides that rent is to be paid in proportion to the amount of the lease held by each tenant:
“in the event this lease shall be assigned as to a part or as to parts of the above described lands and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionate part of the rents due from him or them, such default shall not operate to defeat or affect this lease in so far as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rentals.” (Emphasis added.)
According to Gold, Cherokee should be liable for $1,600 of the $2,400 rent and Gold should be liable for $800 of the rent. If production on Cherokee’s acreage does not produce $1,600 worth of royalties, Cherokee is liable for the difference between the royalties paid and $1,600. Likewise, Gold would be required to pay the difference between $800 and the royalties received by the Drehers from Gold’s 80 acres.
We conclude that the $2,400 guaranteed royalty should be deemed a royalty and not rent. The guaranteed royalty language in the lease is typical of the language used in drafting a minimum guaranteed royalty clause. See Hemingway, Law of Oil and Gas § 7.6 (2d ed. 1983); 3 Williams, Oil and Gas Law § 644.10(1985). “Cash payments in lieu of actual royalty, such as minimum royalty payments and shut-in royalty payments, are viewed as royalty and not as rentals.” Hemingway, Law of Oil and Gas § 7.6, pp. 370-71 (2d ed. 1983). While no Kansas case on point has been found, other jurisdictions have held that minimum guaranteed royalty payments are royalty. See Morriss v. First Nat. Bank of Mission, 249 S.W.2d 269, 275 (Tex. Civ. App. 1952); Carlisle v. United Producing Company, 278 F.2d 893, 895 (10th Cir. 1960).
In Kansas, delay rentals refer to the rent a lessee agrees to pay the landowner when drilling operations are deferred. See State, ex rel., v. Board of Regents, 176 Kan. 179, 190, 269 P.2d 425 (1954). In the present case, the parties have “crossed off’ or omitted the printed delay rental clause from the lease and thus it appears that the parties did not intend for the lease to provide for delay rentals. Similarly, the guaranteed royalty is technically not a bonus. A bonus is the consideration paid for the execution of an oil and gas lease. See State, ex rel., v. Board of Regents, 176 Kan. at 190; Veverka v. Davies & Co., 10 Kan. App. 2d 578, 585, 705 P.2d 558 (1985). The $2,400 guaranteed royalty should not be deemed rent and, thus, the obligation should not be apportioned pursuant to the proportionate rent clause.
There is no evidence that the parties entered into an agreement as to which of them, or both, should be liable for the $2,400 guaranteed royalty. Gold is not contending that it is not liable for any of the $2,400. Rather, it argues that it is liable for the guaranteed royalty only to the extent of its proportion of ownership in the 240-acre tract.
The lease provides that, in the event that the royalties paid do not equal or exceed $2,400, then, and only then, the difference should be paid. That is, if the Drehers receive $2,400 in royalties, no further payments are required.
We conclude that the only logical decision in this case is that, in the event $2,400 in royalties has not been paid, Cherokee should be required to pay two-thirds of the difference and Gold should pay one-third. That is, the clear intent of the Drehers and H-H-H Oil Company was that the Drehers receive a guarantee of $2,400 in royalties from the 240 acres. It would seem equitable that the difference should be apportioned between the lease holders in proportion to their percentage of the total acreage in the lease.
Finally, Gold contends the trial court erred in refusing to grant a declaratory judgment and now seeks to have this court determine that Cherokee is liable for its proportionate share of the guaranteed royalty for future years. It phrases this contention as a declaratory judgment issue. In view of our decision on the merits herein, we believe a declaratory judgment is unnecessary.
“ ‘The relief contemplated by the declaratory judgment act (G.S. 1935, 60-3127 to 60-3132) [now K.S.A. 60-1701 et seq.] does not, in the absence of unusual circumstances or emergency features, include its use in pending actions to secure declarations on questions of law involved and in the process of determination therein, nor as a substitute for ordinary actions which afford reasonably adequate remedies.’ Syl. ¶ 3.
“ ‘ “The courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties. A declaratory judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action. A disputed question of law or procedure raised in a pending suit is not such an actual controversy as comes within the letter, reason, or spirit of the declaratory judgments act.’ ” 151 Kan. at 331.” Ratley v. Sheriff's Civil Service Board, 7 Kan. App. 2d 638, 640, 646 P.2d 1133 (1982) (quoting Pugh v. City of Topeka, 151 Kan. 327, 99 P.2d 862 [1940]).
Reversed and remanded to the district court for entry of judgment on Gold’s counterclaim in accordance with this decision. | [
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Davis, J.:
Plaintiff filed an action under the small claims procedure act, K.S.A. 61-2701 et seq., and demanded judgment for $227.13 plus costs and interest. The small claims court granted plaintiff a judgment for $198.31 plus costs. Defendant then appealed to the district court, which tried the case de novo pursuant to K.S.A. 61-2709(a). The district court granted judgment to plaintiff for $1,445.48 and costs, including a $500 attorney fee. Defendant appeals.
We do not discuss the issues raised by defendant because the disposition of this case depends upon the resolution of an issue raised sua sponte by this court during oral argument. Whether a district court hearing a small claims appeal de novo can grant a plaintiff a judgment beyond the scope of small claims jurisdiction is an issue of first impression in Kansas. The provisions of the small claims procedure act do not expressly address the scope of the district court’s jurisdiction in a de novo hearing of a small claims appeal.
We hold that a district court sitting as a small claims appellate court may not award the plaintiff a judgment beyond the scope of small claims jurisdiction. See K.S.A. 61-2703(a); L. 1986, ch. 224, § 1 (amending K.S.A. 61-2703 to increase a “small claim” from $500 to $1,000). Because the district court exceeded its authority as a small claims appellate court by awarding plaintiff an amount beyond the scope of small claims jurisdiction, we find the judgment void, set it aside, and remand the case for further proceedings consistent with this decision.
Our holding is based on the following: (1) the small claims procedure act provides that a plaintiff who pursues a small claim waives the right to recover any excess; (2) express language in the, appeals section of the small claims procedure act, K.S.A. 61-2709(a), indicates that the legislature intended a district court reviewing a small claims judgment to assume appellate, not original, jurisdiction; and (3) interpretation of the act to permit a district court to retry the issues on appeal, but not to award an amount exceeding a small claim, renders the different provisions of the act consistent, harmonious, and sensible.
I
Plaintiff, in a supplemental brief on this issue, concedes that on appeal from a small claims judgment the district court “has no subject matter jurisdiction, per se, in excess of the subject matter jurisdiction of the Small Claims Court,” but argues that K.S.A. 61-2706(a)(3) permits a plaintiff to amend his or her pleadings and service of process upon appeal and to commence a new action under the code of civil procedure for limited actions. See K.S.A. 61-1603(a) (setting a $5,000 limit on the amount in controversy). K.S.A. 61-2706(a) provides as follows:
Claims exceeding small claims in jurisdiction, (a) Whenever a plaintiff demands judgment beyond the scope of the small claims jurisdiction of the court, the court shall either: (1) Dismiss the action without prejudice at the cost of the plaintiff; (2) allow the plaintiff to amend his or her pleadings and service of process to bring his or her demand for judgment within the scope of the court’s small claims jurisdiction and thereby waive his or her right to recover any excess, assessing the costs accrued to the plaintiff; or (3) if the plaintiff s demand for judgment is within the scope of the court’s general jurisdiction, allow the plaintiff to amend his or her pleadings and service of process so as to commence an action in such court in compliance with K.S.A. 61-1703, assessing costs accrued to the plaintiff.”
See L. 1986, ch. 224, § 2.
K.S.A. 61-2706 deals with the commencement, not the appeal, of small claims. Under 61-2706(a)(3) a court may allow a plaintiff who files a small claims action, but demands judgment exceeding small claims jurisdiction, to amend his or her pleadings and service of process and commence a limited action. If the plaintiff wishes to proceed with a small claims action, however, K.S.A. 61-2706(a)(2) clearly requires that he or she waive the right to recover any excess.
Although the waiver provision in K.S.A. 61-2706(a)(2) applies expressly to amended petitions, no reason exists to treat original small claims petitions differently. The plaintiff elects the procedure that governs the action. A plaintiff who files a small claims action and obtains a judgment cannot later file another suit against the defendant in the district court demanding a more lucrative award on the same claim. Similarly, a plaintiff who obtains a judgment in small claims court cannot later seek a judgment exceeding a small claim on appeal to the district court. Cf. Merywethers v. Youmans, 81 Kan. 309, Syl. ¶ 2,105 Pac. 545 (1909) (“It is the privilege of a creditor to abandon or remit a part of his debt and thus bring it within the jurisdiction of the [city] court, and when he limits his claim to an amount within the jurisdiction of the court he necessarily forgives so much of the debt as exceeds that amount.”).
The provision for de novo appeal in K.S.A. 61-2709(a) must be read in context of the waiver required by 61-2706(a)(2). By specifying that an appeal to the district court “shall be tried and determined de novo,” 61-2709(a) authorizes the district court to decide the issues itself, including the issue of damages, without regard to the decision of the small claims court. After trial de novo, the district court may award plaintiff greater or lesser damages than granted by the small claims court. Because plaintiff has waived the right to damages exceeding a small claim, however, the district court may not award plaintiff an amount above what the small claims court could award.
We have considered the argument that a plaintiff, who files a small claim anticipating a simple and speedy trial without the cost of counsel, should not be bound by the jurisdictional limits on small claims if the defendant appeals and demands a full trial. We find this argument unpersuasive because K.S.A. 61-2709(a) requires the district court to award a successful appellee, “as part of the costs, reasonable attorneys’ fees incurred by the appellee on appeal.” See Szoboszlay v. Glessner, 233 Kan. 475, 481-85, 664 P.2d 1327 (1983); Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d 100, 626 P.2d 1219 (1981).
II
The language of K.S.A. 61-2709(a) expresses legislative intent that a district court reviewing a small claims action sit as an appellate court:
K.S.A. 61-2709. Appeals, (a) An appeal may be taken from any judgment under the small claims procedure act. All appeals shall be by notice of appeal specifying the party or parties taking the appeal and the order, ruling, decision or judgment complained of and shall be filed with the clerk of the district court within 10 days after entry of judgment. All appeals shall be tried and determined de novo before a district judge or associate district judge, other than the judge from which the appeal is taken. The provisions of K.S.A. 60-2001 and 61-1716, and amendments thereto, shall be applicable to actions appealed pursuant to this subsection. The appealing party shall cause notice of the appeal to be served upon all other parties to the action in accordance with the provisions of K.S.A. 60-205. An appeal shall be perfected upon the filing of the notice of appeal. When the appeal is perfected, the clerk of the court or the judge from which the appeal is taken shall refer the case to the administrative judge for assignment in accordance with this section. All proceedings for the enforcement of any judgment under the small claims procedure act shall be stayed during the time within which an appeal may be taken and during the pendency of an appeal, without the necessity of the appellant filing a supersedeas bond. If the appellee is successful on an appeal pursuant to this subsection, the court shall award to the appellee, as part of the costs, reasonable attorneys’ fees incurred by the appellee on appeal.” (Emphasis added.)
We construe words and phrases according to the context in which they are used and give words in common use their natural and ordinary meaning. In re Petition of City of Moran, 238 Kan. 513, 519-20, 713 P.2d 451 (1986) (citing Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 [1984]). In natural and ordinary usage, “appeal” does not signify an original action, but a review of a lower court’s decision by a higher court. The provision for appeal “from any judgment” and the requirement that the notice of appeal specify “the order, ruling, decision, or judgment complained of’ supports our conclusion that the legislature used “appeal” in K.S.A. 61-2709(a) in its natural and ordinary sense.
In the absence of express legislative directive to the contrary, we interpret “appeal” in K.S.A. 61-2709(a) to refer to a review of the judgment of the small claims court, not to a new, original action in the district court. The provision for de novo review does not alter the appellate nature of the district court’s authority, but rather specifies the procedure to be employed on appeal of a small claims judgment, directing the district court to make an independent determination of the facts. The direction to hear a small claims appeal de novo does not expand the appellate jurisdiction of the district court, which extends no further than the subject matter jurisdiction of the small claims court. Cf. McCracken v. Wright, 159 Kan. 615, 618, 157 P.2d 814 (1945) (“It has been the settled law of this state for many years that a district court takes a case appealed from a justice of the peace with only the limited jurisdiction of the justice and does not acquire any original jurisdiction.”); Ohio Hydrate & S. Co. v. H.W. Underhill C. Co., 141 Kan. 213, 40 P.2d 337 (1935); Parker v. Dobson, 78 Kan. 62, 69-70, 96 Pac. 472 (1908); Ball v. Biggam, 43 Kan. 327, 23 Pac. 565 (1890); Berroth v. McElvain, 41 Kan. 269, 20 Pac. 850 (1889); Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631 (1884).
Ill
The legislature enacted the small claims procedure act “to provide a forum for the speedy trial of small claims.” K.S.A. 61-2712. To further this purpose, it provided a summary procedure for the adjudication of small claims, denying litigants the rights to be represented by counsel prior to judgment and to a jury trial. K.S.A. 1985 Supp. 61-2707(a). To shield the act from constitutional challenge while preserving the summary nature of small claims proceedings, the legislature guaranteed litigants rights to counsel and to jury trial on de novo appeal to the district court. See K.S.A. 61-2709(a) (provision for jury trial in K.S.A. 61-1716 applicable to de novo appeals); Windholz v. Willis, 1 Kan. App. 2d 683, 573 P.2d 1100 (1977).
Our duty is to give effect to the entire small claims procedure act and to reconcile different provisions to make them consistent, harmonious, and sensible. State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985) (citing State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 [1984]). An interpretation of de novo that allows the district court to try and to determine a small claims action anew, but not to award a judgment beyond the jurisdiction of the small claims procedure act, fully protects the litigants’ rights to counsel and to jury trial. Permitting the district court on appeal to grant a plaintiff a judgment exceeding a small claim would not provide any additional material protection for these rights. On the other hand, to hold that a plaintiff who has obtained a small claims judgment may amend his or her petition on appeal and bring a fresh limited action would nullify the waiver principle of K.S.A. 61-2706(a)(2) and effectively deprive the defendant of the right to appeal provided in K.S.A. 61-2709(a). In addition, allowing a plaintiff to plead a limited action on appeal would undercut the purpose of the act to provide for the speedy trial of small claims.
Our holding that the small claims procedure act limits the district court’s appellate jurisdiction to that of the small claims court respects the purpose of de novo review and, by construing the provisions of the act in a consistent, harmonious, and sensible manner, will facilitate the speedy trial of small claims.
IV
By choosing to proceed under the small claims procedure act and by obtaining a judgment from the small claims court, plaintiff waived the right to recover any excess. By awarding plaintiff a judgment exceeding a small claim, the district court acted beyond its jurisdiction as a small claims appellate court. K.S.A. 1985 Supp. 61-2707(c) states that “[a]ny judgment entered under this act on a claim which is not a small claim, as defined in K.S.A. 61-2703 . . . , shall be void and unenforceble.”.
The district court’s judgment is set aside and we remand the case for entry of judgment consistent with the provisions of the small claims procedure act and this opinion.
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Robinson, J.:
The defendants, Elmo Dean Dressel, Sam McHugh Webb, and Robert Willis Strickland, Jr., appeal their convictions of one count of attempted felony theft (K.S.A. 21-3301 and K.S.A. 21-3701) and six counts of felony theft (K.S.A. 21-3701) following a nine-week jury trial.
Cargill, Incorporated (Cargill) is an agribusiness conglomerate with principal offices in Minneapolis, Minnesota. Cargill operates a soybean receiving and processing plant in Wichita, Kansas. The first step in this business is that of acquiring soybeans for processing. These beans are delivered to the plant by trucks.
The delivering truck pulls onto a scale called a gross weight scale and the scale operator pushes a button which weighs and then stores the truck’s gross weight in a computer’s memory. This computer is capable of storing two gross weights at the same time. The truck then drives to the unload or pit area where the soybeans are dumped and elevated into storage for future use. At the same time, a sample is taken for grading purposes.
The delivering truck, now empty, proceeds to another scale, the tare scale. The scale operator pushes the tare weight button, which causes an “in-truck scale ticket” to be printed. This ticket has printed on it the truck’s gross weight and its tare weight, as well as the time and date of the tare reading. Also printed is the automatically calculated net weight of the delivery transaction. This scale ticket is used as the receipt evidencing the delivery of the beans and represents an obligation of payment on the part of Cargill.
As the scale ticket printer prints the in-truck scale ticket, it simultaneously records the identical information on a “continual roll tape.” This produces a daily cumulative record of all transactions on the scales reflecting the weights and times the tare weights were recorded.
The scale operation is capable of handling two trucks within the stages of unloading. While one truck is at the unloading pit, a second truck can be on the gross scale. When there are two gross weights in the memory, it is the first one that is to be recorded when the tare weight button is pushed. The scale ticket printer will print a given tare weight as often as the operator engages the printer mechanism and a gross weight is available in memory to produce a new weight computation. The recording and printing of the various weights in the proper sequence is necessary to produce true results and this function is under the total control of the scale operator.
As a security precaution, both the gross and tare scales are monitored by two closed-circuit video cameras. One camera tapes the view of the gross scale and the other of the tare scale with a distant view of the unload pit. Their signals are fed to two video monitors and two time-lapse video recorders. The recorders also reflect a time and date for each frame recorded.
In late April and early May 1983, David Larson, an accountant at the Wichita facility, had an opportunity to view several of these videotapes. Since he observed some unusual activity, several Cargill employees from Minneapolis came to Wichita on May 10 to view the tapes.
Review of the tapes, in conjunction with an analysis of unloading documents, disclosed several discrepancies in the unloads made by a particular F & M Grain Company (F & M) truck between April 25,1983, and May 12,1983. First, the F & M truck consistently veered sharply to the right as it came out of the unload shed onto the tare scale. Second, the tare weight of the F & M truck was “punched in” within one to two minutes of when the previous truck received its tare weight. Third, the tare weight of the F & M truck was consistently similar to the tare weight of the truck immediately preceding it. Fourth, the driver of the F & M truck did not get out of his vehicle while it was stopped on the tare scale. Fifth, the F & M truck, which was supposedly coming from Commerce City, Colorado, made frequent unloads at the plant, often two unloads per day. Sixth, the license tag on the F & M truck varied, depending on whether the truck was making a morning or afternoon unload. Finally, the tarp on the F & M truck did not move while the truck was in the unloading pit.
On May 12, 1983, several Cargill employees set up surveillance to watch the F & M truck. David Larson observed that the truck, driven by defendant Sam McHugh Webb, was improperly positioned over the unload pit and that the truck moved slowly onto the tare scale. In addition, Larson noted that after the truck cleared the area, it was traveling in low gear emitting black smoke and “hugged” the road. Larson concluded that the F & M truck had not unloaded any soybeans.
Ted F. Neises, Jr., who was near the F & M truck, also concluded that the truck had not made a delivery since he did not see or hear any soybeans being unloaded. Defendant Robert Willis Strickland, Jr., was the Cargill scale operator at the time of this delivery.
On May 13, 1983, Cargill employees contacted the Kansas Bureau of Investigation. Several special agents, assisted by Car- gill employees, conducted an investigation concerning the activities of the F & M truck. On May 17, 1983, David Larson and KBI special agent Ed Bartkoski observed the F & M truck parked in the parking lot of a west Wichita motel. Later that day, they saw Webb and the third defendant, Elmo Dean Dressel, leave the motel in a brown pickup truck. Webb drove the pickup to the Cargill plant and circled the parking lot twice. Strickland was not working the scales on this date.
On May 18, 1983, Larson and Bartkoski observed the F & M truck, driven by Webb, make a bona fide unload. While making this unload, the truck was in the unload pit for approximately two minutes. Following the delivery, Webb returned to the motel where he was met by Dressel. They had been staying in the same motel room. Subsequent testing by the state grain inspection department revealed that the soybeans delivered were sour, a condition created by damp storage and the lack of proper air circulation. The videotape of this transaction was recorded over on June 6,1983. This tape was never in the possession of the KBI and it was the policy of Cargill to keep the tapes for 90 days.
On April 26, 28, 29, and May 2, 3, and 4, 1983, Cargill issued checks to F & M for soybeans allegedly delivered on those dates. Each check was in excess of $100. The checks, which were subsequently cashed, were mailed to 6900 E. 53rd Place, Commerce City, Colorado, a warehouse leased by Dressel. Checks were also issued for the May 11 and 12, 1983, “deliveries”; however, payment was stopped on these two checks.
On May 26,1983, Dressel, Webb, and Strickland were charged, with eleven counts of theft by deception. According to the complaint, the defendants deceptively obtained control over money belonging to Cargill on April 26,28, 29, and May 2,3,4, 5, 6, 11, and 12, 1983. Ultimately, the defendants were tried for attempted theft in connection with the May 12 transaction and theft by deception in connection with the transactions of April 26, 28, 29, and May 2, 3, 4, and 11, 1983.
On October 28, 1983, James Z. Hernandez entered his appearance as special counsel to assist the district attorney in prosecuting the case against the defendants. Mr. Hernandez was hired by Cargill.
On January 19, 1984, the defendants were found guilty of one count of attempted felony theft and seven counts of felony theft; however, the defendants’ post-trial motion for judgment of acquittal concerning count two, the May 11, 1983, transaction, was sustained.
Additional facts are included in the discussion of defendants’ alleged errors.
Defendants’ first contention is that the trial court erred in refusing the defendants’ request for discovery and request for sanctions against the prosecution based upon the premise that the trial court could not compel the complaining witness, Cargill, to disclose information. The defendants are primarily concerned with three items they attempted to discover prior to trial. These were Cargill’s inventory, tests as to how fast a truck could unload, and tests on the synchronization of the three clocks on the gross scale, tare scale, and continuous roll tape.
The majority of the investigation into the charges against the defendants was performed by Cargill and not by the State of Kansas. As a result, most of the evidence was, at one time or another, in the control of Cargill and not the State of Kansas. Motions for discovery of these items of evidence were consistently denied by the trial judge, who ruled that he was without jurisdiction to order Cargill to participate in discovery.
As part of this first issue, defendants contend that the attorney hired by Cargill to assist in the prosecution was, in fact, a “prosecuting attorney” who should have been required to participate in discovery pursuant to K.S.A. 22-3212.
The State, relying on State v. Berg, 236 Kan. 562, 694 P.2d 427 (1985), and State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984), contends that Cargill’s attorney was only an “associate attorney” and, therefore, not subject to K.S.A. 22-3212 and that he was merely hired to “assist” the prosecution and was not a “prosecuting attorney” as set out in the statute.
K.S.A. 22-3212 provides in part:
“(1) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant . . . (b) results or reports of . . . scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney ....
“(2) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, ... or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution. Except as provided in subsections (l)(b) and (l)(d), this section does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by officers in connection with the investigation or prosecution of the case.” (Emphasis added.)
The term “prosecuting attorney” is defined in K.S.A. 1985 Supp. 22-2202(17):
“ ‘Prosecuting attorney’ means any attorney who is authorized by law to appear for and on behalf of the state of Kansas in a criminal case, and includes the attorney general, an assistant attorney general, the county or district attorney, an assistant county or district attorney and any special prosecutor whose appearance is approved by the court.”
The attorney hired by Cargill was allowed to assist in the prosecution pursuant to K.S.A. 19-717.
“[T]he prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.” (Emphasis added.)
Clearly, the attorney hired by Cargill was not a “prosecuting attorney” as defined in K.S.A. 1985 Supp. 22-2202(17) above, nor was he a “special prosecutor.” In Berg, 236 Kan. at 567, the court held that the term “special prosecutor” means “one who is temporarily appointed by the court to replace the absent county attorney.” He can be labeled only as an “associate counsel,” employed to “assist” the prosecuting attorney. It is also clear that an “associate counsel” does not have control over the case. The law in Kansas is “ ‘a criminal prosecution is a state affair and the control of it is in the public prosecutor/ ” Berg, 236 Kan. at 565.
The Kansas cases relating to these terms and their respective definitions concerned questions of who had control over the case. None of the cases dealt with the question raised in this case. Is the “associate counsel” required to comply with the discovery requirements of our criminal procedure?
The complaining witness is not required to employ private counsel to assist the district attorney. This is a statutory privilege and with it should go certain responsibilities. Cargill’s attorney had knowledge and control over the items requested or, at the very least, had the ability to become knowledgeable of them. The State cannot violate the constitutional right of a defendant to discover evidence that is favorable or material to his guilt or innocence on the mere assertion that the district attorney has no control over an attorney who is assisting him. Cargill did not hire the attorney to represent them, they hired an “associate counsel” to assist the district attorney. Fundamental fairness requires the associate counsel allowed under K.S.A. 19-717 to be bound by the discovery requirements of our criminal procedure. To rule otherwise would allow a complaining witness to have ultimate control over the case.
It follows that had the trial court ordered discovery, it also had the authority to enforce its order. A trial court has the authority to enforce its discovery orders and sanctions are sometimes necessary to compel compliance. The least drastic sanctions which will accomplish the objectives should be employed. State v. Schilling, 238 Kan. 593, Syl. ¶ 4, 712 P.2d 1233 (1986).
Having ruled that the trial court erred in holding that it was without jurisdiction to compel Cargill’s attorney to participate in discovery, we must consider if it is reversible error.
The test for determining whether a conviction should be reversed is stated in United States V. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985):
“Consistent with ‘our overriding concern with the justice of the finding of guilt,’ United States v. Agurs, 427 U.S., at 112, a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” 473 U.S. at 678.
The court went on to state,
“The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 473 U.S. at 682.
As stated earlier, the defendants were primarily concerned with discovering three items or areas of the investigation.
1. Cargill’s Inventory. On November 18, 1983, the defendants filed a motion to discover Cargill’s inventory. On November 30, 1983, the motion was denied. The defendants subsequently made other motions to obtain the inventory; however, the motions were consistently denied by the trial judge who ruled that he was without jurisdiction to order Cargill to participate in discovery. The judge did, however, state that he would force compliance with a subpoena duces tecum if the defendants issued a subpoena and Cargill refused to comply with the same.
During trial, defense counsel informed the court that they had subpoenaed Cargill’s inventory. Apparently, the defendants were supplied with an incomplete inventory which indicated the loss for the elevator area only rather than the loss for the entire facility. A hearing was conducted outside the presence of the jury, where David Larson testified that a “measured inventory” concerning the period between March 1 and May 31, 1983, indicated that Cargill had lost 99,000 bushels of soybeans. He also testified that the August 10, 1983,inventory which the defendants wanted would show that Cargill had lost more than 99,000 bushels of soybeans between August 1982 and August 1983.
Defense counsel wanted Cargill’s inventory for two reasons. First, according to the defendants, an inventory would either confirm or deny allegations that Cargill had suffered a loss as a result of the defendants’ failure to deliver soybeans. Second, the defendants wanted the inventory because the trial court had ruled that the defendants were prohibited from introducing evidence that other individuals had been charged in a second criminal case with the crime of theft by deception until the defendants proved to the court that the other crimes occurred about the same time as the crimes in this case and that the total amount of the grain not delivered to Cargill was reasonably close to the amount of the grain not delivered by the other individuals.
2. Tests Concerning How Fast a Truck Could Be Unloaded. On June 2, 1983, Cargill employees conducted a number of tests using the F & M truck. The tests consisted of: (a) determining how many weights could be stored in the memory of the gross scale computer; (b) determining how many tare weights could be obtained by driving a truck across the tare scale without stopping; (c) ascertaining what effect veering sharply to the right while approaching the tare scales would have on the recorded tare weight; (d) determining whether a tare weight could be obtained if a truck were only partially on the tare scale; (e) ascertaining in what position a truck would have to be in order to make a delivery into the unloading pit; (f) determining whether a truck had to come to a complete stop before its gross weight could be entered; (g) ascertaining how much the gross weight of a vehicle could fluctuate; (h) determining how the true weight of a truck could be altered by use of a “key switch”; (i) comparing the time on the wall clock in the scale house with the time printed on the continuous roll tape and the time reflected on the videotapes; and (j) determining whether the same truck could register varying gross and tare weights.
Prior to trial, the State provided to defendants a document titled “Results of Tests Conducted June 2, 1983 by Cargill Employees.” These results were highly summarized and in and of themselves not self-explanatory. Although no results as to unloading times were given, it is apparent that such tests were conducted to some extent. Two of the State’s witnesses testified that the F & M truck in question could be unloaded in two minutes, contrary to statements made by Ed Bartkoski in the affidavits for arrest warrants. In addition, one of the State’s witnesses did testify that Cargill employees had conducted a series of tests to determine how long it took 900 bushels of soybeans to travel through the pit area into the sampler machine. The State knew about the test results prior to trial yet failed to disclose the test results to defense counsel.
3. Tests Concerning the Synchronization of the Clocks on the Gross Scale, Tare Scale, and Continuous Roll Tape. At trial, one of the State’s witnesses testified that the only “recorded” test results concerning the synchronization of the clocks was contained in the document which had been given to defense counsel by the State. However, that report said only that “Time clocks on the two video time-lapse machines not synchronized and neither synchronized with continued tape clock.” In a hearing outside the presence of the jury, David Larson testified that he recalled the tests indicating that the gross and tare clocks were off by approximately thirty seconds and that the tare clock and the continuous roll tape clock were off by about a minute to a minute-and-a-half.
As previously noted, the videotape of May 18, 1983, was recorded over by Cargill. This was the only tape that showed a bona fide unload in two minutes. It was also the events on this tape that the KBI, as well as the employees of Cargill, were watching. The only available tape of a bona fide unload was that of May 4, 1983; however, that unload took three minutes instead of two minutes.
We find that these requested items are material since there is a reasonable probability that, had they been disclosed to the defendants, the result of the trial would have been different. Such information was of vital importance and absent some good reason not shown here, justice required that it be given to the defendants. Defendants made specific and relevant requests of the prosecution (including the “associate counsel”) and the failure to make any response is seldom, if ever, excusable. See United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).
The judgment of the trial court is reversed and the case is remanded for a new trial with instructions to afford to the defendants their right of pretrial discovery in accordance with the views set forth in this opinion. | [
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Meyer, J.:
The defendant, Leroy Miller, appeals his convictions of aggravated incest, K.S.A. 1985 Supp. 21-3603. He contends (1) that the court erred in not granting him a mistrial upon learning of a juror’s hearing difficulties, (2) that it also erred in holding that defendant’s threats of violence to his victims constituted concealment which tolled the statute of limitations, and (3) that the evidence was not sufficient to support his convictions.
The victims are defendant’s stepdaughters, T. J. and D. J., who at the time of trial were 7 and 11 years old respectively. The counts allegedly involved the respective victims as indicated and occurred at the following times and places:
Count 1: T.J., on or about September 26, 1984, in a “peach” house in Cherokee;
Count 2: T.J., between April 12, 1982, and July 23, 1982, in a “green” house in Pittsburg; and.
Count 3: D.J., between June 28; 1982, and July 23, 1982, in a “green” house in Pittsburg.
The color of the hoúses are given because the girls at times in their testimony state the times and scenes of the crimes as having occurred in, or while they lived in, the peach or green house. The dates given as to each count are what the State’s evidence shows as to the period within which the defendant and the respective victim were present in such houses, and within the time frame when it is alleged the crimes occurred.
Other facts will be set out as we discuss the issues.
The defendant first contends that the trial court erred in not granting a mistrial upon learning of what defendant calls a “deaf juror,” and that the sitting of such juror denied defendant a fair trial. The juror’s hearing impairment came to light toward the end of the first day of trial when the juror advised the court that she had not heard any of the testimony of either T.J. or D.J., nor had she heard certain other remarks and testimony. The record reveals the following colloquy occurred:
“[JUROR]: Well, the only thing I find is a problem besides that is I can’t hear the evidence and how can a juror really make a good juror. The counsels both of them are so soft spoken and maybe it’s my age or something, but —
“THE COURT: You are having trouble hearing?
“[JUROR]: I just had a hearing test in Joplin. He said I didn’t need a hearing aid, but I’m willing to have one, but the children I could not understand at all. “THE COURT: Well, I think everyone had problems hearing the children. “[JUROR]: You projected. You were right in front of the jurors. I heard you better than almost any of the other ones.
“THE COURT: Would it help if you sat down in front?
“[JUROR]: No, no, I don’t think so. They were too soft spoken: you and you — the counsels.
“[JUROR]: But you asked me what else was bothering me and I think the people around me cannot hear everything, but it’s hard to make a decision when you can’t hear the evidence.
“[JUROR]: See, I couldn’t hear very well. All of a sudden they said Lawrence so it made me think of Lawrence.
“[JUROR]: I heard nothing the girls said only indicating nods and shakes. “[DEFENSE COUNSEL]: Did you hear it when the court reporter read to you?
“[JUROR]: No, you didn’t read very loud either so maybe I shouldn’t be on this if I’m that deaf.”
None of the other jurors, when asked, indicated they had trouble hearing the evidence. The juror who said she had not heard the testimony was moved to the front row.
Whether a person is qualified or competent to sit as a juror is a question for determination by the trial court and its ruling thereon will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion. State v. Folkerts, 229 Kan. 608, Syl. ¶ 6, 629 P.2d 173 (1981); State v. Sanders, 223 Kan. 273, 275-76, 574 P.2d 559 (1977). K.S.A. 43-159 provides:
“In addition to the persons excused from jury service in K.S.A. 43-158, the following persons may be excused from jury service by the court: (a) Persons so physically or mentally infirm as to be unequal to the task of ordinary jury duty.” (Emphasis added.)
When a question of abuse of discretion is posed, the appellate court reviews the trial court decision to determine whether there has been a clear abuse of discretion. “[Discretion is abused only where no reasonable man would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
The juror involved in this issue advised the court that she could not hear either T.J. or D.J., that she could not hear either counsel, and that she could not hear the court reporter. The trial judge said he believed the juror was “overstating” her inability to hear critical testimony, questions, and repetition of the record. Although a juror’s competence is a matter for judicial determination, a juror’s specific statement of such a factual matter, that is, what he or she could or could not hear, should control over a judge’s opinion regarding the juror’s ability to hear in the absence of some indication of insincerity or falsehood on the part of the juror. Also, the fact that a juror on voir dire did not state he or she had a hearing impairment, standing alone, will not ordinarily be dispositive on the issue since the juror would not necessarily be aware of what was not heard. See State v. Berberian, 118 R. I. 413, 420, 374 A.2d 778 (1977).
The standard in Kansas as to whether a trial court erred in failing to excuse a juror is that such ruling will not be disturbed unless it is “clearly erroneous or there has been an abuse of discretion.” Folkerts, 229 Kan. 608, Syl. ¶ 6.
We have been cited to no Kansas case, and have found none, directly in point. Turning, however, to the law of other states, we note that in Commonwealth v. Brown, 231 Pa. Super. 431, 436, 332 A.2d 828 (1974), the court stated that “[w]hile a juror is not disqualified per se because of his deafness, [citation omitted] where the deafness is of such degree as to indicate that the juror may not have heard inaterial testimony, the juror must be disqualified, rendering any verdict he gave as meaningless.”
The rule that the appellate court is not a factfinding court is so well known and often stated that citations are unnecessary. However, here the trial judge did not make a finding that the juror could hear; he merely said he thought the juror had “overstated.” Such a conclusion is not sufficient when dealing with a situation more within the knowledge of the juror than within that of the court. In the absence of a showing of insincerity or falsehood on the part of this juror, when faced with a claim by such juror that she has not heard material testimony, the court should have discharged her for cause; and absent a waiver by the defendant, the court should have declared a mistrial.
We hold that the refusal to sustain a motion for mistrial under the circumstances hereinabove set out was an abuse of discretion.
While defendant also contends the evidence was insufficient to support his convictions, we need not address this issue because of our holding in the first issue herein.
Finally, defendant contends the trial court erred in ruling that defendant’s threats to T.J. and D.J. constituted concealment of the crime, thus tolling the statute of limitations as to counts 2 and 3.
The testimony of T.J. and D.J. revealed that defendant threatened to hurt them if they told anyone about the crime. The trial court ruled that these threats constituted concealment of the crimes pursuant to K.S.A. 21-3106(3)(c), thus tolling the two-year statue of limitations. This ruling is contrary to the recent decision of our supreme court in State v. Bentley, 239 Kan. 334, 721 P.2d 227 (1986). In Bentley, the court interpreted K.S.A. 21-3106(3)(c) (which provides that concealment is an exception to the two-year criminal statute of limitations) to mean that threats made by the defendant to his nine-year-old victim of sexual abuse not to tell anyone what happened did not constitute concealment under that statute. Bentley, 239 Kan. 334, Syl. ¶ 2.
Bentley is directly in point on the statute of limitations issue in this case. The latest possible date that the acts charged in counts 2 and 3 could have occurred was July 23, 1982, and the information was filed on February 1, 1985. This requires that the convictions under counts 2 and 3 be reversed and the defendant discharged as to those two counts. We are aware that at the time of the decision the trial court did not have the benefit of the Bentley decision. The State, on appeal, argues another ground for tolling the statute of limitation — absence of the defendant from the State of Kansas, K.S.A. 21-3106(3)(a). Bentley, as we have said, controls insofar as concealment by threat is concerned, and the fact that, not having the benefit of the Bentley decision, the trial court held the statute was tolled was probably the reason the State did not argue at trial that defendant’s absence from the state tolled the statute. Nevertheless, for whatever reason, this issue was not raised in the trial court, and this court under the direction of State v. Kelly, 204 Kan. 715, 716, 466 P.2d 350 (1970), should not consider it for the first time on appeal.
The trial court is reversed as to counts 2 and 3, and it is ordered that defendant be discharged as to those counts. The trial court is reversed as to count 1, and same is remanded to the trial court with instructions that defendant be afforded a new trial as to such count. | [
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Davis, J.:
The defendant, Mary Cada, appeals from a judgment granting plaintiff, Garden National Bank of Garden City, Kansas, a deficiency judgment following her default on a car loan and ordering a mortgage on real property pledged by her to secure the loan foreclosed. Before seeking judgment and foreclosure of the mortgage, the bank repossessed and sold the car at a public auction. Cada also appeals from the trial court’s denial of a motion under K.S.A. 60-260(b)(4).
In November 1980, Mary Cada borrowed $8,664.70 from Garden National Bank to buy a 1981 Pontiac Firebird. On December 1 she signed a promissory note, disclosure statement, and security agreement, pledging the car as collateral. Cada failed to make any payments on the note and on February 18, 1981, the parties executed a renewal note, calling for monthly payments of $313. Both notes provided that the loan would be subject to the Kansas Uniform Consumer Credit Code, K.S.A. 16a-l-101 et seq.
Cada did not make a payment on the renewal note. On March 12 the bank sent Cada a “Notice of Right to Cure Default,” demanding that she pay $313 by April 1. Cada made no payment, and on April 7 an officer of the bank visited her in Texas and had her sign a “Voluntary Surrender and Authorization to Dispose of Personal Property.” In the document she surrendered the car to the bank and authorized the bank “to dispose of this property at public or private sale in the retail or wholesale market without further notice to us.” The bank took possession of the car. On April 8, the bank wrote Cada informing her that she could redeem the vehicle “by paying a substantial reduction in the neighborhood of $4,000.00 to $5,000.00 on this loan account within ten days or no later than April 20, 1981.”
Despite its demand for a “substantial reduction” in the loan, the bank accepted from Cada payments of $313 on April 21 and April 30 and released the car to her. The trial court found that “[t]hese payments apparently reinstated the note insofar as the plaintiff was concerned.”
On June 4, Cada made payments to the bank for May and June, but she made no payments to the bank in July, August, or September. On September 17, 1981, she signed a “Deferral Agreement & Disclosure Statement,” in which the bank agreed to defer demand for the July, August, and September sums until November 1. The agreement indicates that no deferral charge was imposed. The bank, however, believed itself to be undercollateralized on the loan and demanded that Cada mortgage real property she owned as consideration for the deferral and for forbearance from foreclosure on the note. Cada executed a mortgage to the bank covering four lots in the City of Deerfield, and the bank listed the mortgage as security on the February 18, 1981, note.
Cada failed to make the November payment. On November 10 the bank obtained possession of the car.
On February 8, 1982, the bank wrote Cada and informed her that the car would be sold if she did not pay the full balance by February 20. The bank warned her that if a balance remained on the note after sale of the car that it would foreclose on the mortgaged property. Cada received no further notice of sale of the car. On April 6 the bank informed Cada by letter that it had sold the car at the Colorado Auto Auction, Inc. for $3,462 and that she still owed $4,568 on the note. The bank gave her until April 15 to pay the balance and prevent foreclosure of the mortgage.
Cada tendered no payment, and on August 17, 1983, the bank filed suit asking for judgment of $4,568 plus interest and expenses and for foreclosure of the mortgage and sale of the property.
Cada retained the Law Offices of Michael J. Friesen, P.A., to represent her. In an answer signed by Friesen’s associate, Phyllis Wendler, Cada generally denied the allegations of the bank’s petition, put the bank on “strict proof thereof,” and requested “an accounting as to the amount allegedly owed by this defendant.”
Friesen conducted little discovery and took no depositions before trial. Near the end of trial, Wendler, Friesen’s co-counsel, stood and offered a number of “affirmative defenses” and counterclaims as amendments to the pleadings. These included contentions that the bank failed to give notification of sale as required by K.S.A. 84-9-504(3) and otherwise to dispose of the vehicle in a commercially reasonable manner. When the trial court inquired why these “defenses” had not been raised before trial, Wendler replied that Cada could not afford to pay for depositions and they had no opportunity before trial to examine the bank’s witnesses. The trial court denied Cada’s motion to amend and entered judgment for the bank on September 5, 1985.
On October 4, 1985, Cada filed a pro se notice of appeal with the district court. Friesen withdrew as Cada’s counsel on October 23. On November 27, the court confirmed the sale of Cada’s land to the sole bidder, Garden National Bank, for $6,000, leaving a deficiency of $2,289.99.
On October 17, 1985, Cada’s new attorney, Gerald C. Golden, filed a motion to set aside the judgment as void, pursuant to K.S.A. 60-260(b)(4). The court denied the motion in a memorandum decision on November 19, 1985. A journal entry was filed December 2 and on December 4, a second notice of appeal was filed.
At the outset, we note that we are faced with two appeals in the same case. In their briefs and in argument, the parties addressed both the merits of the trial court’s initial judgment and the subsequent ruling denying Cada relief under K.S.A. 60-260(b)(4). Therefore, we will consider both the initial judgment and the order denying the 60-260(b)(4) motion. See Supreme Court Rule 2.05 (235 Kan. Ixi).
We find no merit in Cada’s contention that the judgment for Garden National Bank is void. “[A] judgment is not void [under 60-260(b)(4)] merely because it is erroneous or because some irregularity inhered in its rendition. It is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process.” Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976). See generally Neagle v. Brooks, 203 Kan. 323, 327, 454 P.2d 544 (1969). The record unquestionably demonstrates that the trial court had jurisdiction of the parties and subject matter and afforded the parties due process of law.
Cada argues that the trial court erred by entering judgment for Garden National Bank and ordering the mortgage on the real property foreclosed because the agreement to mortgage the property was not supported by adequate consideration. She also argues that the bank failed to sustain its burden of proving that it disposed of the car following repossession in a commercially reasonable manner as required by K.S.A. 84-9-504(3).
Lack of consideration must be pled as an affirmative defense. K.S.A. 60-208(c); State ex rel. Ludwick v. Bryant, 237 Kan. 47, 50, 697 P.2d 858 (1985). Because Cada neither pled nor attempted to plead lack of consideration in the court below, she waived the defense and may not raise it on appeal. See Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315 (1976); Brooker v. Brooker, 214 Kan. 89, 96-97, 519 P.2d 612 (1974); Oehme v. Oehme, 10 Kan. App. 2d 73, 77, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985); U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 353-54, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).
Garden National Bank argues that Cada’s contention that it failed to dispose of the car in a commercially reasonable manner also is an affirmative defense and that the trial court did not abuse its discretion by denying her the opportunity to amend her pleadings to allege the defense at trial.
Contrary to the bank’s position, Cada did not need to plead failure to dispose of the car in a commercially reasonable manner as an affirmative defense. Rather, the burden of proving that the car was sold in a commercially reasonable manner rested on the bank as part of its case in chief. In Westgate State Bank v. Clark, 231 Kan. 81, 642 P.2d 961 (1982), the court stated the rule as follows:
“We must first emphasize the generally accepted rule that, where a secured creditor brings an action for a deficiency judgment after sale of the collateral, the burden.of proof as to the commercial reasonableness of the sale is on the plaintiff creditor. [Citation omitted.] . . . This rule is consistent with prior decisions of this court holding that, where a creditor repossesses and disposes of the collateral, it is incumbent on the creditor to account for the collateral sold by him before he can recover a deficiency. Mannen v. Bailey, 51 Kan. 442, 32 Pac. 1085 (1893).” 231 Kan. at 91.
See Medling v. Wecoe Credit Union, 234 Kan. 852, 863, 678 P.2d 1115 (1984) (applying rule to determination of commercial reasonableness under the UCCC); Kelley v. Commercial National Bank, 235 Kan. 45, 51, 678 P.2d 620 (1984).
In the “Promissory Note, Disclosure Statement & Security Agreement,” the bank and Cada agreed that the loan would be governed by the UCCC. See K.S.A. 16a-l-109. Under the UCCC, as interpreted by the Kansas Supreme Court, the bank had no right to a deficiency judgment unless it proved that it disposed of the car in a commercially reasonable manner. “In consumer transactions, where there is creditor misbehavior such as failure to sell in a commercially reasonable manner, a claim for a deficiency judgment is absolutely barred.” Westgate State Bank v. Clark, 231 Kan. at 90. See K.S.A. 16a-5-103(1); Kelley v. Commercial National Bank, 235 Kan. at 50-51; Medling v. Wecoe Credit Union, 234 Kan. at 861-62.
To satisfy the burden of proving that the collateral was disposed of in a commercially reasonable manner, Garden National Bank had to prove that it sent Cada reasonable notification of the time and place of sale, as required by K.S.A. 84-9-504(3):
“Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.” (Emphasis added.)
See K.S.A. 16a-l-103 (provisions of the Uniform Commercial Code supplement those of the UCCC).
Garden National Bank failed to introduce any evidence that it sent Cada notification of the time and place of public sale of the car. On February 8, 1982, the bank sent Cada a letter informing her that it intended to sell her car after February 20,1982, but the letter did not mention the Colorado Auto Auction or the date of sale. Because it did not specify the time and place of sale, the February 8 letter did not fulfill the notification requirement of K.S.A. 84-9-504(3). See Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983); Horta v. Flanigan's Enterprises Emp. Credit, 488 So. 2d 657 (Fla. Dist. App. 1986); Wippert v. Blackfeet Tribe, _ Mont. _, 695 P.2d 461 (1985); Havelock Bank v. McArthur, 220 Neb. 364, 370 N.W.2d 116 (1985); Benton-Lincoln Credit Serv. v. Giffin, 48 Or. App. 559, 617 P.2d 662 (1980).
In its petition the bank relied on the “Voluntary Surrender and Authorization to Dispose of Personal Property,” in which Cada waived her right to further notification of sale. K.S.A. 84-9-504(3) provides that a debtor can sign “after default a statement renouncing or modifying his right to notification of sale.” (Emphasis added.) Cada signed the “Voluntary Surrender” on April 7, 1981, following her default on March 1, 1981. As the trial court found, however, she cured this default in April 1981. “Cure restores the consumer to his rights under the agreement as though the defaults had not occurred.” K.S.A. 16a-5-lll(2) (emphasis added.) Thus, Cada’s renunciation occurred before the November 1 default and did not constitute an effective waiver of her right to notification of sale under 84-9-504(3).
Finally, a public auto auction does not fall into the exemption from the notification requirement for collateral “of a type customarily sold on a recognized market.” K.S.A. 84-9-504(3). See Norton v. Nat. Bank of Commerce, 240 Ark. 143, 146, 398 S.W.2d 538 (1966); Comm. Mgmt. Assn. v. Tousley, 32 Colo. App. 33, 36, 505 P.2d 1314 (1973); Horta v. Flanigan's Enterprises Emp. Credit, 488 So. 2d at 658 n.1; Maryland Nat'l Bank v. Wathen, 288 Md. 119, 122, 414 A.2d 1261 (1980); K.S.A. 84-9-504(3), Kansas Comment 1983, Subsection (3)(7) (“The courts have generally limited the 'recognized market’ exception to securities or commodities for which standard price quotations act as a safeguard.”).
Garden National Bank did not carry its burden of proving that it sent Cada notification of the time and place of public sale of her car and, thus, failed to prove that it disposed of the car in a commercially reasonable manner. The bank’s failure to dispose of the car in a commercially reasonable manner absolutely bars it from claiming any deficiency on the note signed by Cada. The trial court erred by granting the bank a deficiency judgment on the February 18, 1981, note and by foreclosing the real estate mortgage.
Reversed and remanded for proceedings consistent with this opinión. | [
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Sell, J.:
The defendant, Charles S. Ritchie, d/b/a Charles S. Ritchie Oil, appeals a permanent injunction issued in favor of Kansas Power and Light Company (KP&L).
In 1980, KP&L obtained a permanent easement upon real estate owned by Harold and Mary Boren through eminent domain proceedings in Greenwood County, Kansas. In that proceeding, the appraisers’ report provided in part;
“The appraisers further report that the rights to be acquired by the Plaintiff in this proceeding are limited to the following:
“1. The right to construct, maintain, alter, repair, operate, remove and reconstruct an electric substation and other appurtenances.
“2. Plaintiff shall have the right to fence the rights-of-way and have the right of exclusive use of such rights-of-way.” (Emphasis added.)
The report also showed the value of the property taken to be $16,500.00 before condemnation and -0- after condemnation.
Thereafter, and prior to November 7, 1984, KP&L constructed an electric substation on part of the property taken in the condemnation proceeding and fenced a part of the property. The substation itself was located within the fenced area but one or more guy wires extending from the substation were located on an unfenced portion of the property condemned.
In 1982, the Borens executed an oil and gas lease to Ritchie on a five-acre .tract of land. The three-year lease included a part of the property acquired by KP&L in the condemnation proceeding.
On November 8, 1984, Ritchie entered upon the unfenced portion of the KP&L right-of-way and commenced drilling an oil and gas well. Before doing so, he did not check title to the property and he did not obtain KP&L’s permission. Drilling was completed (but the well not tested) on November 14, 1984. On November 20, 1984, KP&L filed a petition for a restraining order and permanent injunction to prohibit Ritchie from re-entering the premises. KP&L alleged that it had acquired the exclusive right to use the surface of the property as a result of the 1980 condemnation proceeding. A temporary restraining order was issued that day. Ritchie’s answer alleged that KP&L did not have the exclusive right to use the surface of the property, that KP&L did not acquire any mineral interests by virtue of the condemnation proceeding, and that his activities in no way interfered with KP&L’s right to the property.
On February 5, 1985, a temporary injunction was ordered as the result of a hearing held on January 18,1985. On February 21, 1985, a'hearing was held for a permanent injunction. The court granted the permanent injunction ruling that (1) KP&L had acquired the right of exclusive use to the surface of the property by virtue of the condemnation proceeding; (2) KP&L’s rights were in no way reduced because it had fenced part of the property; (3) KP&L had not acquired any mineral rights; and, (4) although the Borens retained the mineral rights, their lessee, Ritchie, was excluded from using the surface of the property to recover the underlying minerals, thereby rendering the mineral interest of questionable value.
The issue presented on appeal is: What rights did KP&L acquire to the Boren property by virtue of the 1980 eminent domain proceeding?
It is well established that “eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly so provides, either expressly or by necessary implication.” Sutton v. Frazier, 183 Kan. 33, Syl. ¶ 3, 325 P.2d 338 (1958). K.S.A. 17-618, the statute which authorized KP&L’s taking in the case at hand, does not provide for the acquisition of a fee simple interest; rather, the condemner acquires a permanent easement on the subject property. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 104, 605 P.2d 125 (1980).
The appraisers’ report must show what the condemner takes and what the landowner parts with. Sutton v. Frazier, 183 Kan. 33, Syl. ¶ 8; Barcus v. City of Kansas City, 8 Kan. App. 2d 506, Syl. ¶ 1, 661 P.2d 806 (1983). The report is the “only evidence of the extent of the easement taken and the extent of its use.” Spears v. Kansas City Power & Light Co., 203 Kan. 520, Syl. ¶ 4, 455 P.2d 496 (1969). Cf. Barcus v. City of Kansas City, 8 Kan. App. 2d at 511. The extent of the easement acquired and the extent of its use are determined “as a matter of law from the language used in the appraisers’ report.” Spears v. Kansas City Power & Light Co., 203 Kan. 520, Syl. ¶ 5. Determining the extent and nature of the easement is paramount to understanding the rights retained by the property owner.
“In the case of a permanent easementthe condemner has the paramount right to possession and use of all the land covered by the permanent easement for the purposes and uses set forth in the appraisers’ report. The former proprietor of the soil retains fee title to the land and his rights extend to all purposes not incompatible with the rights of possession and use of the condemner.” Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, Syl. ¶ 3.
See also Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, 208-09, 675 P.2d 375 (1984).
Here, KP&L sought to acquire a permanent easement on the Boren property so it could “build, maintain, alter, repair, operate, remove and rebuild an electric substation for the transportation of electricity over and across certain land in Greenwood County, Kansas.” The appraisers’ report specially stated:
“The appraisers further report that the rights to be acquired by the Plaintiff in this proceeding are limited to the following:
“1. The right to construct, maintain, alter, repair, operate, remove and reconstruct an electric substation and other appurtenances.
“2. Plaintiff shall have the right to fence the rights-of-way and have the right of exclusive use of such rights-of-way.”
Ritchie contends that pursuant to this report, KP&L did not acquire any mineral rights to the Boren property and that KP&L’s right to exclusive use of the surface of the property is limited to the area fenced and actually used by KP&L. This construction of the appraisers’ report would allow Ritchie to continue oil and gas exploration on the well site which is located on the condemned property but outside the fenced area.
The appraisers’ report does not contain any language which would lead a reasonable person to believe that KP&L had acquired the mineral rights to the Boren property. Accord Sutton v. Frazier, 183 Kan. at 45. In fact, KP&L agrees that it did not acquire mineral rights to the. Boren property by virtue of the condemnation proceeding. However, KP&L argues that since it acquired the right to exclusive use of all of the surface property condemned, it has the right to exclude all others from using the surface of the property for mineral exploration. This case then turns on the answers to two questions: (1) What is the extent of KP&L’s right of exclusive use, and (2) what does the right of exclusive use encompass?
The district court ruled that KP&L had acquired both the right to fence and the right to exclusive use of the property’s surface. This appears to be a correct interpretation of the appraisers’ report. However, in support of his conclusion that KP&L acquired only the right of exclusive use to fenced property, Ritchie points to the specific language used in the appraisers’ report: “2. Plaintiff shall have the right to fence the rights-of-way and have the right of exclusive use of such rights-of-way.” (Emphasis added.) Ritchie argues that such “rights of way,” to which the right of exclusive use applies, refers to “the rights-of-way which plaintiff has chosen to fence under its right to do so.” Ritchie’s contention is without merit.
The use of the word “such” refers to the last antecedent. Black’s Law Dictionary 1284 (5th ed. 1979). Here, the previous “rights-of-way” were the same “rights-of-way” which had been discussed earlier in the appraisers’ report, namely the rights-of- way to the described Boren property. The preceding clause of the sentence in issue referred to the right to fence the rights-of-way. It did not alter the previously discussed rights-of-way. Adoption of the construction urged by Ritchie would merely require KP&L to put up a fence around the perimeter of the property in order to exclude Ritchie from the land.
Accordingly, KP&L acquired the right of exclusive use to the entire property acquired in the condemnation proceeding. However, the question remains as to what “exclusive use” encompasses.
“Exclusive” is defined as “[appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone.” Black’s Law Dictionary 506 (5th ed. 1979). Applying this definition to the case at hand would prohibit the fee holder from using his property during KP&L’s active use of the same; however, that was one of the factors considered by the appraisers in determining the amount KP&L would have to pay for the taking as evidenced by the value of the property before and after condemnation.
“The landowners are entitled to compensation based on the full use which the eondemner has the right to exercise over the easement condemned as described in the commissioners’ report.” Roberts v. Upper Verdigris Watershed, 193 Kan. 151, Syl. ¶ 5, 392 P.2d 914 (1964).
“If the eondemner desires only an infrequent limited use of the easement condemned [and thereby reduces the cost of acquiring the property] it need only make certain that the limited use is properly stated in the petition and incorporated in the commissioners’ report which is filed with the register of deeds and governs the extent of the easement and the extent of the use.” 193 Kan. at 158-59.
Ritchie asserts that a condemner’s right to exclusive use of condemned property does not prohibit the fee holder from using the property as long as his use does not interfere with the condemner’s use of the same. Ritchie apparently misreads Midland Valley R. Co. v. Corn, 21 F.2d 96 (D. Kan. 1927).
In Midland, the railroad acquired a right-of-way over private property in 1911. The grant did not contain any language which would entitle the railroad to exclusive use of the property; however, by judicial mandate, the railroad apparently was entitled to exclusive use of the property for railroad purposes. 21 F.2d at 98.
In 1927, the railroad attempted to enjoin the defendants from drilling on part of the property which had never been used for railroad purposes. The court refused to issue the injunction noting the property had been abandoned by the railroad. 21 F.2d at 99. The court stated:
“The railroad company has a title to the lands conveyed for its right of ways for ‘railroad purposes,’ and shall have the exclusive use and possession for such purposes. Uses of the lands by the fee owner shall at all times be compatible with the uses for railroad purposes, and if the fee title owner attempts to use the lands for any purpose which conflicts or interferes with the use and possession of the railroad company for ‘railroad purposes,’ he should be prevented and halted in such attempts.” (Emphasis added.) 21 F.2d at 98-99.
Contrary to Ritchie’s contention, Midland appears to stand for the proposition that the railroad had the right to exclusive use of the property as long as it used the property for railroad purposes; however, since the railroad had abandoned that right, the fee holder was free to make use of his property.
Here, KP&L’s right of exclusive use of the surface of the Boren property prohibited the Borens or their lessee from using the same. The fact that KP&L took quick action to remove Ritchie from the property indicates that KP&L had not abandoned its right. Further, KP&L’s actual use of the property extended past the fenced area. Its guy wires, which ran to the substation, were outside the enclosed area.
We conclude that KP&L acquired the right to exclusive use of the surface of all of the condemned property as discussed above and that the district court’s judgment granting KP&L’s injunction should be affirmed. As in Midland, we hold that KP&L has the right to exclusive use of the property so long as it uses the property for the purposes set out in the condemnation proceeding.
We are mindful that “[t]he former proprietor of the soil retains fee title to the land and his rights extend to all purposes not incompatible with the rights of possession and use of the condemner.” Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, Syl. ¶ 3. There may be circumstances where infrequent, occasional or casual entry upon property by the fee holder is permissible if not incompatible with the rights of possession and use by the condemner. This would ordinarily be a question of fact to be determined by the trial court. However, in this case under the facts presented, the trial court found that Ritchie was excluded from using the surface of the property to recover the underlying minerals. Inherent in this finding is the proposition that Ritchie’s use of the surface of the property was incompatible with KP&L’s rights of possession and use and, therefore, should be prohibited by permanent injunction.
The decision of the trial court is affirmed. | [
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STANDRIDGE, J.:
Progressive Products, Inc. (PPI) manufactures and sells Ceram-Back, a ceramic coating for pipe elbows that significantly lengthens the life of the pipe. Tom Swartz, Marvin Rob-arts, and Calvin Bunney are former PPI employees who left PPI to start VIN Manufacturing, LLC (VIN), a competing company. PPI sued, alleging misappropriation of trade secrets and requesting relief in the form of a permanent injunction. After a bench trial, the district court determined Swartz, Robarts, Bunney, and VIN misappropriated PPI’s trade secrets but found a permanent indefinite injunction inappropriate under the circumstances. To that end, the district court permitted VIN to continue manufacturing and selling ceramic coating for pipe elbows but ordered VIN to refrain from divulging, selling, or advertising any part of PPI’s trade secrets for a period of 3 years. The court further ordered VIN to pay a 20 percent royalty on all sales for the next 3 years. PPI appealed, arguing the district court erred in imposing royalty payments instead of a permanent injunction. Swartz, Robarts, Bunney, and VIN (Appellees) filed a cross-appeal, arguing there was insufficient evidence to support the district court’s finding that a trade secret had been misappropriated in the first place.
The Evidence Presented At Trial
At the bench trial, Robert Allison of PPI described the events leading up to the company’s formation. Allison explained that a long-standing problem in the pneumatic conveyance industry was abrasion caused by the transportation of dry solids through pipes or tubing. In 1974, Allison discovered a new method of coating elbows which eventually led to PPI’s incorporation.
In 1980, Allison approached Roger Messenger, who agreed to manufacture the coated elbows for PPI. Messenger refined Allison’s coating formula, which eventually was given the name “Ce-ram-Back.” At the time of the bench trial, the Ceram-Back name reportedly was in the process of being trademarked.
Those PPI employees responsible for mixing the Ceram-Back compound had access to the ingredients. A material safety data sheet (MSDS sheet) for Ceram-Back, which identified CeramBack’s ingredients, was posted on a wall at the manufacturing facility, All employees were free to walk through the coating and mixing area.
Neither Allison nor anyone else from PPI patented the CeramBack formula. According to Allison, he did not seek a patent because doing so would publicize the ingredients to Ceram-Back and because a patent would last only for 17 years. To maintain the secrecy of the Ceram-Back formula, PPI refused to furnish its customers an MSDS sheet and PPI prohibited its sales employees from disclosing the ingredients to potential customers. In addition, Pat Damman, the president of PPI, testified that employees were told to hide the containers holding the ingredients under a tarp when outsiders would visit the business. Bunney and Robarts disputed this claim.
In addition to refining PPI’s original coating formula, Messenger also created a formula to determine the number of inches on a pipe that one “batch” or unit of Ceram-Back would cover for each size of pipe (e.g., 2-inch pipe, 3-inch pipe, etc.). Based on Messenger’s findings, Allison created a computer program that enabled PPI to efficiently determine the number of Ceram-Back batches necessary to complete a job. This calculation was a key component to PPI’s pricing method. Only management, PPI’s two salespeople, and possibly administrative support had access to the computer pricing program; welders at PPI and coaters who applied the Ce-ram-Back to the elbows were prohibited from accessing this information.
Although no employee had access to the specific formula and calculations in the computer program, Damman conceded this formula could be ascertained from the written work orders generated by the salespeople. The work orders included the number of batches necessary to complete a job as well as the number of inches that the batches of Ceram-Back would cover. Damman agreed that a person with an adequate background in mathematics could “back out the math” for the formula based on this information. Allison also admitted that a person could determine by hand how much was needed to complete a pipe “[i]f [they] knew enough math.”
To measure the Ceram-Back ingredients for mixing, PPTs employees used ordinary plastic cups and a tea pitcher. PPI marked each cup and the pitcher with lines, with each line representing one batch of Ceram-Back. There was no evidence that PPI informed its employees that its method of mixing and applying the Ceram-Back was confidential.
PPI also created price sheets or price lists displaying the prices of various standard elbows. According to Damman, the price sheets were not supposed to be given out to employees who did not have access to them, although he also admitted that he never clearly communicated this to the sales employees. PPI routinely sent these price lists out to prospective customers who requested them.
PPTs customer lists were regarded as confidential information to which only sales employees were permitted access. These lists could be found exclusively on PPTs computer system. However, one time Swartz and another PPI employee printed a customer list to use at a trade show. Swartz testified that he later disposed of the list. According to Robarts, PPI wrote the customer contact information on the work orders, and he was never informed to keep this confidential.
Bunney, Robarts, and Swartz admitted that they knew little or nothing about the business of coating steel elbows for pneumatic conveyance systems before working at PPI. Robarts admitted that his idea to form VIN originated from his employment as a welder at PPI. While the two men were still working at PPI, Robarts began operating VIN with Bunney, who had been trained at PPI to mix the Ceram-Back and coat the elbows.
Except for the brand name of one of the ingredients, VIN’s ceramic compound mirrored the Ceram-Back formula. Like PPI, VIN used a tea pitcher and plastic cups marked in segments to mix its compound. Robarts admitted that he obtained batch information from PPI’s work orders and used this at VIN. Robarts further admitted that Swartz had given him one of PPI’s price sheets, which he used to undercut VIN’s pricing.
Despite these telling similarities, there is one slight difference between the two companies. Approximately 85 percent of PPI’s business is selling pipe elbows with the coating already applied, while 15 percent of PPI’s sales are “application only,” where the customer supplies the elbow to be coated. In contrast, VIN does not have an elbow supplier; thus, its business is limited to a coating-only service.
VIN hired Swartz for its sales position. Swartz knew of PPI’s customers because he had worked as a sales employee at PPL Swartz admitted that he and Robarts met with one of PPI’s customers and that they had coated two elbows for the customer worth $512.47 before the district court entered its temporary restraining order. According to Robarts, VIN would have secured a deal with the customer worth over $15,000 if not for the restraining order.
After hearing the evidence, the district court ruled from the bench, although a journal entry of the court’s ruling was later filed. The district court found that PPI had “a” trade secret that included the Ceram-Back formula, mixing process, the pricing method contained in the computer program, and the price sheet, the last of which was misappropriated by Swartz. The district court also found that VIN was “in possession of this trade secret, or at least very important portions of this trade secret, including the exact formula,” and that PPI “was a bit lax in protecting this trade secret.”
Finally, while concluding that PPI’s trade secret should be protected, the district court also expressed its view that the Kansas Uniform Trade Secrets Act (KUTSA) was not intended to absolutely prevent competition or commerce and that KUTSA did not authorize the court to deny Bunney, Robarts, and Swartz the right to pursue their own business. For these reasons, the district court entered a royalty injunction against VIN, permitting it to continue its business but ordering it to pay PPI a 20 percent royalty on sales occurring between July 21, 2006, through July 20, 2009. The court also imposed several restrictions on the content of VIN’s advertising, as well as other conduct.
PPI appeals, arguing the district court erred in imposing royalty payments instead of a permanent injunction. Appellees cross-appeal, arguing there was insufficient evidence to support the district court’s finding that a trade secret had been misappropriated in the first place. Because the district court’s decision to grant relief (whether in the form of royalties or permanent injunction) is necessarily based on the court’s underlying finding of misappropriation, we will address the issue of misappropriation first.
Analysis
I. Did The District Court Err In Finding Misappropriation Of A Trade Secret?
A. Trade Secret
The threshold inquiry in an action for misappropriation of a trade secret under KUTSA, K.S.A. 60-3320 et seq., is whether there is a trade secret to be misappropriated in the first instance. Fireworks Spectacular v. Premier Pyrotechnics, 147 F. Supp. 2d 1057, 1065 (D. Kan. 2001); see also Koch Engineering Co. v. Faulconer, 227 Kan. 813, 826, 610 P.2d 1094 (1980) (noting that threshold issue in common-law action to enjoin unauthorized use of trade secret was whether there was a trade secret to be misappropriated). Whether a trade secret exists is an issue for the trier of fact. Universal Engraving, Inc. v. Duarte, 519 F. Supp. 2d 1140, 1151 (D. Kan. 2007).
When a verdict is challenged as being contrary to the evidence, the appellate court does not reweigh the evidence or pass on the credibility of the witnesses. City of Mission Hills v. Sexton, 284 Kan. 414, 422, 160 P.3d 812 (2007). The court accepts as true the evidence and all inferences to be drawn therefrom, which support, or tend to support, the verdict or judgment below and disregards any conflicting evidence or other inferences which might be drawn therefrom. Calver v. Hinson, 267 Kan. 369, 375, 982 P.2d 970 (1999). If the evidence, when considered in the light most favor able to the prevailing party, supports the verdict, the appellate court should not intervene. See City of Mission Hills, 284 Kan. at 422.
KUTSA was enacted in 1981 and patterned after the Uniform Trade Secrets Act (UTSA) promulgated by the National Conference of Commissioners on Uniform State Laws. McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 48, 847 P.2d 1321 (1993). The general purpose of KUTSA is to make uniform the law of trade secrets among the states enacting provisions modeled after UTSA. See K.S.A. 60-3327 (stating that KUTSA shall be applied and construed to effectuate its general purpose).
KUTSA defines trade secret as follows:
“ ‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
“(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
“(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Emphasis added.) K.S.A. 60-3320(4).
Here, Appellees do not dispute the district court’s finding that the customer lists, price lists, computer program, Ceram-Back formula, and the mixing and application process met the requirements for a “trade secret” under 60-3320(4)(i). Instead, Appellees assert there is insufficient evidence to support a finding that PPI used reasonable measures to maintain the secrecy of the information, which necessarily prohibits the information from qualifying as a trade secret pursuant to K.S.A. 60-3320(4)(ii).
In support of their assertion, Appellees rely on an unpublished case from the United States District Court for the District of Kansas for the proposition that employees have a duty to protect information if, and only if, they are informed that the information is confidential. Webster Engineering and Mfg. Co., Inc. v. Francis, 1993 WL 406025, at *4 (D. Kan. 1993) (unpublished opinion). Because the evidence demonstrates that PPI never informed its employees that the alleged trade secrets were confidential, Appellees argue that PPI failed — as a matter of law — to make reasonable efforts to maintain secrecy as required by K.S.A. 60-3320(4)(ii).
We are not persuaded by Appellees’ argument. As a preliminary matter, we do not read the persuasive authority upon which Appellees rely to stand for the legal proposition cited. To that end, the court’s language must be placed in context:
“To qualify as a trade secret, die information need not be kept absolutely secret; it is sufficient that the company make all disclosures confidential. Dionne v. Southeast Foam, Converting & Packaging, Inc., 397 S.E.2d 110, 112 (Va. 1990). Although plaintiff correctly notes that joint venturers and employees are expected to protect confidential information, it is necessary to inform employees what information is considered confidential. [Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 902 (Minn. 1983).]” Webster Engineering and Mfg. Co., 1993 WL 406025, at *4.
As this language shows, the court in Webster Engineering did not hold that employees must be informed that information is confidential in order for the information to qualify as a trade secret. Rather, the court merely observed that informing employees that information is confidential is sufficient for the information to qualify as a trade secret. This is consistent with uniform authority providing that “reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on ‘need to know basis,’ and controlling plant access” but that “public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection.” 14 Uniform Laws Annotated, p. 539 (2005).
For the reasons stated above, we hold that the proper approach to determine whether reasonable security measures to protect a trade secret were implemented as required by K.S.A. 60-3320(4)(ii) involves an analysis of all the circumstances. Based on this holding, we now will determine whether there was sufficient evidence to support the district court’s finding that PPI used reasonable measures to maintain the secrecy of (1) the Ceram-Back formula; (2) the mixing process; (3) the batch method; (4) the pricing lists; and (5) the customer lists.
1. The Ceram-Back Formula
All employees had access to an MSDS sheet, which listed the ingredients to Ceram-Back, and the ingredients could be found in the mixing area, to which employees’ access was not restricted. With that said, Damman testified that he expressly prohibited Swartz, a sales employee, from disclosing the Ceram-Back formula to the public. Damman also testified that the employees were told to cover up the ingredients when outsiders visited the plant. Although Bunney and Robarts later disputed Damman’s testimony, we must disregard such conflicting evidence as it does not support the judgment below. See Calver, 267 Kan. at 375. For these reasons, we conclude there was sufficient evidence from which the district court could find that PPI engaged in reasonable efforts to maintain the secrecy of the Ceram-Back ingredients.
2. The Mixing Process
The only evidence suggesting that PPI attempted to keep the Ceram-Back mixing process a secret consisted of Damman’s testimony. Damman testified that the employees did not have access to the amount of ingredients necessary to make a batch of CeramBack. Damman admitted, however, that the PPI employees whose duty it was to mix the compound measured the ingredients using a common tea pitcher and plastic cups, both of which were divided into segments representing batches of Ceram-Back. Thus, Dam-man must have meant that PPI did not provide the employees access to the quantity in standard units of measurement of each ingredient necessary to make a batch of Ceram-Back. PPI did reveal the quantity of each ingredient necessary to make one batch of Ceram-Back using its premarked plastic cups and tea pitcher, and this was the data Appellees later used at VIN. PPI points to no proof that it treated this information with any secrecy, and no such evidence could be found in the record. As a result, we find there was insufficient evidence for the district court to conclude that the mixing process qualified as a trade secret. See K.S.A. 60-3320(4)(ii).
3. The Batch Method
The foundation of PPI’s pricing method was Messenger’s discovery that one “batch” of Ceram-Back would cover a certain number of square inches on a pipe. When converted to computer for mat, Messenger s calculations enabled PPI to determine in a quick and efficient manner the amount of Ceram-Back necessary to complete a work order. Although PPI permitted management, salespeople, and possibly administrative support to use the computer pricing program, access to the internal formula or formulas derived from Messenger’s calculations were limited exclusively to Allison and Damman. As Damman explained, PPI told its employees the amount of batches to apply to an elbow but did not give its employees access to its method for determining “how to come up with [the] amount of batches.” (Emphasis added.)
Notwithstanding this explanation, Damman admitted on cross-examination that when a pipe was to be coated, PPI sent work orders to its employees which told them the number of batches to prepare and disclosed the number of inches that the batches would cover on the pipe. Damman conceded that a person with knowledge of the number of batches necessary to cover a specific area on a pipe could “back out the math . . . [a]s long as you know how to figure your square inches over the back.” Similarly, Allison admitted that a person with a sufficient mathematics background could determine how much Ceram-Back was needed to complete a work order without using the pricing program. Thus, PPI’s efforts at keeping this information confidential were not seamless.
Nevertheless, KUTSA only requires efforts to maintain secrecy that are reasonable under the circumstances; perfection is not required. See K.S.A. 60-3320(4)(ii); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 725 (7th Cir. 2003). Moreover, this court will not reweigh conflicting evidence on this issue. See Calver, 267 Kan. at 375. Here, there is sufficient evidence to support the district court’s decision that PPI’s batch method constituted a trade secret.
4. Price Lists
PPI created price sheets showing the price for standard coated elbows and coating-only services. PPI intended that only sales employees be permitted access to these lists, and Swartz, a former sales employee, testified that he knew he was not supposed to give a price sheet to Robarts, who operated as a welder at PPI. With that said, the price sheets were disclosed to any customer who requested them. Thus, as a matter of law, the price sheets did not constitute trade secrets, and the district court erred in holding otherwise. See Applied Indus. Materials Corp. v. Brantjes, 891 F. Supp. 432, 438 (N.D. Ill. 1994) (price information which is disclosed by a business to any of its customers does not constitute trade secret information because customers are free to communicate the information to anyone).
5. Customer Lists
Finally, Appellees claim there was insufficient evidence to establish PPI’s customer list was a trade secret. In its journal entiy of judgment, the district court never found that the customer list merited trade secret protection. In listing the information that met the definition of trade secret under K.S.A. 60-3320(4), the district court included several items, including the formula and pricing method used by PPI, but not the list of customers. PPI points to nothing in its brief estabhshing otherwise. Therefore, we will not address this issue.
Based on the discussion above, there was sufficient evidence to support the district court’s determination that PPI used reasonable efforts to maintain the secrecy of the Ceram-Back formula and its batch method. Accordingly, we find without merit Appellees’ allegation that there was no underlying trade secret.
B. Misappropriation
A finding that a trade secret has been misappropriated is a prerequisite to injunctive relief under KUTSA. See K.S.A. 60-3321(a). Whether a trade secret has been misappropriated generally presents a question of fact. MicroStrategy Incorporated v. Li, 268 Va. 249, 264, 601 S.E.2d 580 (2004). If the evidence, when considered in the light most favorable to PPI, supports the district court’s finding of misappropriation here, we may not disturb the court’s decision. See City of Mission Hills, 284 Kan. at 422.
Here, Appellees contend that only the price sheet should be subject to an injunction. Appellees’ contention is based entirely on the premise that the district court’s journal entry only found the price sheet to have been misappropriated. We disagree with Appellees’ interpretation of the district court’s findings.
Relevant to tire evidence presented here, KUTSA defines misappropriation as
“(ii) disclosure or use of a trade secret of another without express or implied consent by ú person who
“(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
“(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.” K.S.A. 60-3320(2)(ii)(B)(II).
In paragraph 14 of the journal entry, the district court found that PPI did have “a” trade secret and that it included
“information, a formula, a program, some method or technique of batching, and tire quantification of the . . . units and the exact formula as pointed out by plaintiffs with regard to the mixture and the ingredients, the pricing method established by them and contained within their computer program, and the price sheet.”
In paragraph 15, the district court made one finding: that Swartz “misappropriated the price sheet.” Paragraph 15 constitutes the district court’s only express finding on misappropriation. In paragraph 16, however, the district court found that Appellees were in possession “of this trade secret, or at least very important portions of die trade secret, including the exact formula, and all this information was gained during the [Appellees’] employment at PPI.” (Emphasis added.) The district court later found that PPI’s trade secret “should be protected not only by PPI but by [Appellees].” Finally, the district court’s injunctive order permitted Appellees to operate their business while directing them to “preserve the trade secret” and “not divulge the formula or method to any other company or parties.”
“In reviewing the findings of fact made by the trial court, an appellate court will give them a liberal construction in order to uphold rather than defeat the decision appealed from. Doubtful or ambiguous findings will be construed whenever possible to support the trial court’s decision.” Landrum v. Taylor, 217 Kan. 113, Syl. ¶ 1, 535 P.2d 406 (1975). To that end, we acknowledge that the journal entry and respective orders in this case may be ambiguous. After making a broad finding in paragraph 14 that the CeramBack formula, the batch method, the price sheets, and other information all met the definition of trade secret under KUTSA, the district court made a finding with regard to misappropriation in paragraph 15 that appears to be limited to the price sheet. Notwithstanding this limitation, the remaining paragraphs of the district court’s journal entry then go back to reflect the previously referenced broader view of misappropriation. We conclude the finding in paragraph 15 is inconsistent with the rest of the court’s findings.
In addition to inconsistency with the rest of the district court’s written decision, we also find the restricted finding of misappropriation in paragraph 15 to be inconsistent with the undisputed evidence in the record. In Kansas, uncontradicted evidence that is not improbable or unreasonable ordinarily is deemed conclusive and cannot be disregarded unless it is shown to be untrustworthy. In re Adoption of W.J., 262 Kan. 788, 795, 942 P.2d 37 (1997).
With respect to the batch method, Robarts specifically admitted that he obtained this concept at PPI and used it at VIN. Moreover, there was undisputed evidence that Appellees used their knowledge with respect to the Ceram-Back ingredients. According to Robarts, die formula to make VIN’s ceramic compound was “close” to the Ceram-Back formula. This was an understatement. The ingredients to Ceram-Back and Appellees’ compound practically were identical; the only variation was the brand name of one of the ingredients. This discrepancy is inconsequential. See Mangren Research & Development v. Nat. Chemical Co., 87 F.3d 937, 944 (7th Cir. 1996) (“ ‘[T]he user of another’s trade secret is liable even if he [or she] uses it with modifications or improvements upon it effected by his [or her] own efforts, so long as the substance of the process used by the actor is derived from the other’s secret.’ ”).
In sum, it is necessary to construe the district court’s legal findings to include a finding of misappropriation for the Ceram-Back ingredients and the batch method in order to give effect to the district court’s factual findings. Such a construction harmonizes these findings with the undisputed evidence in the record and the district court’s subsequent order. For these reasons, we reject Appellees’ argument that the district court’s finding of misappropriation was limited to the price sheets.
II. Did The District Court Err In Its Choice Of Remedy For The Misappropriation?
In its journal entry, the district court modified the preliminary restraining order and injunction to permit VIN to continue manufacturing and selling ceramic coating for pipe elbows as long as VIN refrained from divulging, selling, or advertising any part of PPI’s trade secrets for a period of 3 years. The court further ordered VIN to pay to PPI a 20 percent royalty on all sales for the next 3 years. On appeal, PPI asserts there was insufficient evidence to support the existence of exceptional circumstances, which was a prerequisite to ordering a royalty injunction under K.S.A. 60-3321(b).
As a prehminaiy matter, we note PPI never objected to this omission during or after the district court proceeding. Generally, a litigant must object to inadequate findings of fact and conclusions of law in order to allow the trial court an opportunity to correct them, and in the absence of an objection, omissions in findings will not be considered on appeal. Where no objection is made, the appellate court will presume the trial court found all facts necessary to support its judgment. With that said, we may still consider a remand if the lack of specific findings precludes meaningful review. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). In this case, we find it necessary to consider the issue presented.
Kansas courts review a district court’s decision regarding an injunction under an abuse of discretion standard. Board of Leavenworth County Comm’rs v. Whitson, 281 Kan. 678, 683, 132 P.3d 920 (2006). Judicial discretion is abused only when no reasonable person would take the view of the district court, and the party who asserts abuse of discretion bears the burden of showing it. The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. State v. Stevens, 285 Kan. 307, 323, 172 P.3d 570 (2007).
A district court’s authority to order that a royalty be paid stems from one of two sources in KUTSA. First, the district may order a royalty as damages. See K.S.A. 60-3322 (stating that measure of damages may be measured by imposition of liability for reasonable royalty). In the journal entry, however, the district court specifically denied PPI’s claim for damages; thus, it is clear that the district court did not rely on this provision in imposing the royalty.
Instead, it appears the district court utilized K.S.A. 60-3321, which permits the court to enter an injunction that conditions future use upon payment of a royalty (royalty injunction):
“(a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
“(b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.” (Emphasis added.)
As noted above, KUTSA was patterned after the Uniform Trade Secrets Act. McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d at 48. The comment to § 2(b) of UTSA specifically notes that, as used in this particular section, a royalty award is not to be used by the courts as a measure of damages for past conduct. Instead, application of § 2(b) is an injunction that conditions a misappropriator’s future ability to use a trade secret upon payment of a reasonable royalty. 14 Uniform Laws Annotated, comment, pp. 620-21. This is consistent with the definition in Black’s Law Dictionary that describes a reasonable royalty as-the amount “a licensee would be willing to pay the holder of the thing’s intellectual-property rights while still making a reasonable profit from its use.” Black’s Law Dictionary 1356 (8th ed. 2004).
The comments to UTSA further elaborate on when an injunction conditioning use on the periodic payment of a reasonable royalty is appropriate:
“Section 2(b) deals with the special situation in which future use by a misappropriator will damage a trade secret owner but an injunction against future use nevertheless is inappropriate due to exceptional circumstances. Exceptional circumstances include the existence of an overriding public interest which requires the denial of a prohibitory injunction against future damaging use and a person’s reasonable reliance upon acquisition of a misappropriated trade secret in good faith and without reason to know of its prior misappropriation that would be prejudiced by a prohibitory injunction against future damaging use.” 14 Uniform Laws Annotated, comment, p. 620.
Put in simpler terms, this comment provides for exceptional circumstances when (1) there is an overriding public interest or (2) the trade secret at issue was acquired in good faith and the resulting prejudice to the innocent misappropriator in restraining future use outweighs the interests of the aggrieved owner of the trade secret.
With regard to overriding public interest, the first exceptional circumstance identified, the UTSA comment specifically cites to the case of Republic Aviation Corp. v. Schenk, 152 U.S.P.Q. 830 (N.Y. Sup. Ct. 1967), as an illustration of justification for withholding injunctive relief. In Schenk, the court determined that enjoining a misappropriator from supplying the United States with an aircraft weapons control system would have endangered military personnel in Viet Nam. Thus, in order to qualify as an overriding public interest, the comment appears to suggest a dual inquiry: first, identification of an overriding interest and, second, a substantial probability that the public will be prejudiced if the" misappropriator is enjoined from use.
With regard to innocents who acquire misappropriated trade secrets in good faith, the second exceptional circumstance identified, the UTSA comment explains that a court, “[i]n weighing an aggrieved person’s interests and the interests of a third party who has relied in good faith upon his or her ability to utilize information, . . . may conclude that restraining future use of the information by the third party is unwarranted.” 14 Uniform Laws Annotated, comment, p. 620.
Here, the district court observed that KUTSA was not intended to absolutely prevent business competition and found that denying Appellees the right to pursue their business would be outside the scope of authority granted by KUTSA. The district court also noted that PPI “was a bit lax” in protecting its trade secret. With that said, the court also noted that PPI had a trade secret which must be protected by PPI and Appellees. Although the district court did not expressly utilize the phrase “exceptional circumstances,” we conclude from the court’s findings that its decision was based on a balancing of the following factors relevant to the determination of exceptional circumstances: the interest in competition, PPI’s culpability in failing to protect its interests, and the need for some trade secret protection. We find these factors insufficient as a matter of law to establish exceptional circumstances as that term is used in K.S.A. 60-3321(b).
As a prekminary matter, we do not consider society’s general interest in fostering competition to rise to the level of an overriding public interest requiring the court to withhold injunctive relief. Although we acknowledge society’s general interest in fostering competition is a matter of public concern, there simply is no evidence to establish a substantial probability that die public will be prejudiced if the misappropriators here are enjoined from manufacturing and selling the ceramic coating. This is not a case where Appellees made improvements, or any change at all, to the misappropriated product. Neither is this a case where the public will be prohibited from accessing the product if Appellees are enjoined from manufacturing and selling it. We find-no evidence that enjoining Appellees from manufacturing and selling the ceramic coating was detrimental to public interests.
Moreover, and unlike the situation contemplated by K.S.A. 60-3321(b), the Appellees here did not innocently acquire the trade secrets from some third party and then misappropriate them in good faith. In its findings of fact, the district court found that Rob-arts, Bunney, and Swartz obtained the formula, mixing process, pricing method, and price sheet directly through their employment at PPI and, at least with regard to some of this information, knew “it was either a trade secret or something that wasn’t to be divulged or something that shouldn’t have been relayed to third parties or other businesses or even themselves, if they chose to leave employment and start a new business, which is what they did.” The district court further found that Swartz obtained
“the price sheet for Defendant Robarts at Robarts’ request prior to leaving the company and in anticipation and with knowledge that he was going to start his own business known as VIN in direct competition with his employer'PPI and in anticipation of contracting [sic] known customers of PPI through Swartz’s knowledge and contacts and that he gained also working at PPI.”
In sum, we-find (1) no evidence of an overriding interest that would prejudice the public if the misappropriators were enjoined; (2) no evidence that the trade secret at issue was acquired in good faith; and (3) no evidence of any other exceptional circumstance as required by K.S.A. 60-3321 to support the district court’s decision to issue a royally injunction conditioning future use upon payment of a royalty. Without such evidence, we conclude no reasonable person would have issued a royalty injunction; thus, the district court’s decision to do so was an abuse of discretion.
Because there was no evidence to support the district court’s decision to issue a royalty injunction, the appropriate disposition here is a remand for the district court to determine whether an alternative order of injunction prohibiting use is necessary to “eliminate [any] commercial advantage that otherwise [was] derived from the misappropriation.” K.S.A. 60-3321(a). In making this determination on remand, the district court should consider to what extent Appellees’ improper use of PPI’s trade secret information allowed Appellees to truncate the time that otherwise would have been required, through experimentation and adjustment, to arrive at a process that yielded a product they could take to the marketplace. This consideration is consistent with the purpose of an injunction in the first place: to strip misappropriators of the advantage they improperly obtained and require them to develop their own manufacturing process without using trade secrets.
With regard to the appropriate duration of such an injunction, the comment to § 2 of UTSA states the rule as follows:
“Subject to any additional period of restraint necessary to negate lead time, an injunction accordingly should terminate when a former trade secret becomes either generally known to good faith competitors or generally knowable to them because of the lawful availability of products that can be reverse engineered to reveal a trade secret.” 14 Uniform Laws Annotated, comment, p. 620.
Thus, injunctive relief ordinarily should continue only until the defendant could have acquired the information by proper means. Injunctions extending beyond this period are justified only when necessary to deprive the defendant of a head start or other unjust advantage that is attributable to the misappropriation. See 14 Uniform Laws Annotated, p. 619. More extensive injunctive relief undermines the public interest by unduly restraining legitimate competition.
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Hill, J.:
In this medical malpractice case, the evidence suggests that as a standard of care, when a surgeon has received a report from the pathologist that casts doubt upon what the surgeon thinks he has accomplished with the surgery, then that surgeon must take steps to reconcile the two beliefs. Here, the surgeon chose to ignore the pathologist report and tell the patient and her referring physician that he had successfully removed the patient’s ovaries laparoscopically. He had not. They were finally removed 2 years later. After losing in district court, the surgeon raises several issues in this appeal. He contends there is no expert testimony showing his negligence caused the pain and suffering and damages to his former patient. Because there is such evidence, we hold the district court properly denied the surgeon’s motion for judgment as a matter of law. We deal with other issues raised by the surgeon, denying any relief but amending the judgment to' order the deduction of a small amount for the cost of a sonogram.
We give a brief history of the .plaintiff s condition and treatment
Relevant to this case, Margarita Munoz’ medical experiences started on March 13, 2002, when she asked Dr. Josie Norris, her primary care doctor, to remove an intrauterine device, commonly called an IUD. Munoz had been experiencing daily bleeding for 2 months before this appointment. Norris tried but was unable to remove the IUD. So, Norris referred her to Dr. Barnett’s office where Dr. Gordon B. Clark treated her. On June 7, 2002, Munoz consulted with Clark, who performed a physical exam. Clark’s office notes show that Munoz was mostly asymptomatic, except for dysmenorrhea, which is painful cramping that occurs during menstruation, and abnormal uterine bleeding.
Clark advised Munoz that her pelvic sonogram showed the presence of a complex adnexal mass arising from her right ovary, which could possibly be a cyst or could be cancerous. Because of her history of ovarian cysts, Clark stated that one alternative treatment for her was the removal of her ovaries through laparoscopic surgery. Munoz chose that alternative.
On August 7, 2002, Clark did the laparoscopic surgery and believed he surgically removed Munoz’ ovaries, fallopian tubes, and IUD. Clark sent the removed tissues to a pathologist for examination. From that sample, the pathologist determined that Clark had removed mostly uterine tubes but had only grazed the ovarian surface. As a result, the pathologist stated in her report that “no ovarian tissue is identified on gross examination” and that “the [macroscopic features support diagnosis, above.”
But Dr. Clark did not contact the pathologist to discuss her findings or conduct any tests that could possibly explain the discrepancy. Instead, he chose not to rely on the pathology report, believing he had successfully removed Munoz’ ovaries. Despite the discrepancy between his clinical findings and the pathology report, on August 16, 2002, Clark personally told Munoz that he had removed her ovaries, fallopian tubes, and IUD. And, because he believed he had removed her ovaries, Clark started hormone replacement therapy and prescribed Prempro to ward off surgically induced menopause.
In his other postoperative actions, Dr. Clark continued to manifest his belief that he had removed Munoz’ ovaries. He sent a letter to Dr. Norris, the primary care doctor, telling her of his treatment of Munoz. As he did with Munoz, Clark did not advise Norris of the discrepancy between his clinical findings and the pathology report. Instead, Clark told Norris he had removed both of Munoz’ ovaries, tubes, and IUD and that he had prescribed Prempro for Munoz. Based on Clark’s letter, Dr. Norris assumed Munoz no longer had ovaries and treated her accordingly.
Our review of the record discloses that at least at one point Dr. Clark had doubt about the removal of her ovaries. In his operative report, Clark dictated that he was unable to separately identify the ovaries:
“Following the hysteroscopy tire patient underwent laparoscopic evaluation. There were no adnexal masses. By introducing 1 cm trocar through the anterior abdominal wall at inferior aspect of the umbilicus this revealed a complex distinct swollen fallopian tubes wrapped around the posterior aspect of the uterine fundus and heading to the posterior cul de sac. The ovaries could not be definitively identified separate from the tubo-ovarian complex.” (Emphasis added.)
Then, in his deposition taken later, Clark indicated that “at the time of surgery, . . . there was no identifiable, normal ovarian tissue structures.” When reminded of this statement at trial, Clark conceded that he did state that he would be dependent upon the pathologist’s findings but only on the issue of whether there was ovarian cancer or not.
Unaware of this discrepancy after her surgery, Munoz went back to her normal life. She went to work. During this time, Munoz experienced severe abdominal pain, breakthrough bleeding, and premenstrual headaches. But Munoz missed no work because of these symptoms. However, in April 2004, because these symptoms continued, Munoz visited an emergency room. At the hospital, the doctors conducted an ultrasound examination of her pelvis as well as a CT scan. The reason for the CT scan was because the emergency room physician’s physical examination of Munoz revealed a mass in her uterus. This was problematic since Munoz allegedly did not have ovaries. The sonogram report stated: “In view what appear to be prominent cystic changes in both adnexal areas, we are requesting a CT scan of the pelvis to help better delineate these fluid-filled structures in view of the history according to the patient of the ovaries being removed.” (Emphasis added.)
The test results cast doubt on the belief that Munoz had no ovaries. After the results of the CT scan were received, Munoz was notified that “they found abnormal findings on the CT scan and that it was very important that she go right away to see a gynecologic surgeon because we didn’t know what indeed this mass was in her pelvis.” The CT scan report specifically stated that the ap pearance of the large lobulated multicystic mass “suggests ovarian neoplasm.” An ovarian neoplasm is a tumor of the ovary.
Concerned by this, Munoz consulted with Dr. Michael Morrison, an obstetrician and gynecologist. Morrison diagnosed Munoz’ condition as endometriosis, which is an inflammatory response in the tissues that leads to adhesion formation. This condition can cause severe pelvic pain. Morrison further determined that the specific cause of Munoz’ pelvic pain came from her endometriomas and adhesions. He said endometriomas in itself refers to ovaries containing endometrial tissues. In other words, her ovaries were causing her pain.
Morrison then told Munoz that he believed her ovaries might still be in her body because ovaries do not regenerate, even if a surgeon cuts off a piece of an ovary. Morrison based his belief that Munoz still had her ovaries, in part, on the discrepancy between Clark’s operative' report and die pathology report. With this belief in mind, Dr. Morrison discontinued Munoz’ hormone replacement therapy, thinking that the Prempro may have some association with her breakthrough bleeding. Then, on June 11, 2004, Dr. Morrison surgically removed Munoz’ uterus and ovaries. He sent the removed tissues to a pathologist who confirmed the removal of those organs and structures.
A lawsuit followed with conflicting claims from both sides. In March 2006, Munoz sued Dr. Clark for medical malpractice. She claimed Clark had failed to reconcile his belief that he had surgically removed her ovaries with the pathologist’s report that no ovarian tissue was removed, except for some tiny microscopic slices. Munoz contended this conduct fell below the appropriate professional standard and caused her damage. In opposition, Dr. Clark maintained throughout the proceedings the same line of defense. Munoz had no expert evidence proving his deviation from die standards of professional conduct as the cause of Munoz’ subsequent medical complaints of pain and bleeding and headaches. In his defense, Clark contended those complaints were the result of disease, not his negligence. Clark took this position first with a motion for summary judgment, then a motion for judgment as a matter of law, then a posttrial motion for judgment notwithstanding the verdict. And now, Clark presses the same argument in this appeal.
We frame the issue and reveal our standard of review.
We note that Dr. Clark did not appeal the jury’s finding that he breached the professional standard of care when he failed to resolve or explore the contradiction between his clinical findings and the pathologist’s report. Basically, Clark makes a causation argument. He contends that Munoz has presented no expert evidence connecting his negligence with Munoz’ pelvic pain, breakthrough bleeding, and premenstrual headaches. In his view, for lack of this evidence, the district court should have dismissed this case as a result.
In response, Munoz contends that expert testimony is not required in eveiy case of medical malpractice. In her view, a jury should be able to make inferences of causation from medical records. Further, she contends that there are cases where the cause of an injury is so obvious the average person from common knowledge and experience can decide the matter. This is often called the “common knowledge” exception.
Before addressing this argument, we establish our standard of review. It is important for an appellate court to state what standard of review it will use while deciding an issue. By doing so, the parties in the appeal will know by what rules the court acted and all future parties will know tire proper standard. Here we deal with Clark’s motion for judgment as a matter of law (these used to be called motions for directed verdict) and his motion for judgment notwithstanding the verdict.
We use the same standard for both motions. A trial court’s decision on a motion for judgment as a matter of law is reviewed under the former directed verdict standard of review. Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007). A denial of a judgment notwithstanding the verdict is similarly reviewed under tire same test as a motion for directed verdict. Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126-27, 815 P.2d 72 (1991). Thus, this court applies the following standard.
When reviewing the grant or denial of a motion for directed verdict, the appellate court — like the trial court — must resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom the ruling is sought and determine whether evidence exists upon which a jury could find a verdict for that party. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. However, when no evidence is presented on an issue or where the evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions, it is a question of law for the court’s determination. See Smith, 285 Kan. at 40; Brown, 249 Kan. at 126-27.
We review some legal fundamentals concerning medical malpractice.
“Medical malpractice is negligence of a healthcare professional in the diagnosis, care, and treatment of a patient.” Perkins v. Susan B. Allen Memorial Hospital, 36 Kan. App. 2d 885, 888, 146 P.3d 1102 (2006). In a medical malpractice case, the plaintiff must prove the following elements:
“(1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and the injury proximately resulted from the physician’s breach of die standard of care. [Citations omitted.]” Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008).
The elements of negligence are never presumed. Therefore, expert testimony is generally required to establish the appropriate standard of care and causation because such matters are outside the knowledge of the average person without specialized training. See Nold v. Binyon, 272 Kan. 87, 103, 31 P.3d 274 (2001); Perkins, 36 Kan. App. 2d at 889. In certain medical malpractice claims, expert testimony is not required because the standard of care and causation are within the common knowledge of a layperson. Perkins, 36 Kan. App. 2d at 889; Watkins v. McAllister, 30 Kan. App. 2d 1255, 1258, 59 P.3d 1021 (2002). But, the application of the common knowledge exception is extremely limited. See, e.g., Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957).
Both sides urge us to view the law in their favor. Dr. Clark wants us to hold that expert testimony concerning causation is required in every case. It is not. If we did so rule, we would ehminate the common knowledge exception to the requirement for expert testimony, and that is a ruling we cannot make. Margarita Munoz asks us to rule that the common knowledge exception applies here. It does not. We hold that the common knowledge exception is inapplicable here. This is not a case of a surgeon operating on the wrong limb, or a case where a patient is dropped from a table. See generally Perkins, 36 Kan. App. 2d at 889 (setting forth several examples where the exception has been applied in Kansas). Rather, the facts here show that while laparoscopic surgery is minimally invasive, it still requires great skill and professional training. It is a subset of surgery practiced by those specially trained. What must be done — peering into a television monitor, trying to identify various tissues and organs, distinguishing healthy tissue from diseased, and attempting to remove the diseased by malting small subtle movements with tiny instruments — requires skills and knowledge beyond common knowledge and experience.
We show the evidence of the applicable standard of care.
Three doctors offered expert testimony for Margarita Munoz, but only two talked about the professional standard of care appropriate for this case. Conrad J. Duncan, M.D., described the proper steps that should have been taken by Clark and then explained to the jury how Clark failed to meet that professional standard. Dr. Morrison testified about how a surgeon should keep a referring physician up to date with accurate information about all procedures used and the resulting condition of their common patient.
We look first at the testimony of Dr. Duncan, a gynecologist who performs minimally invasive gynecological surgery. After reviewing medical records from Munoz’ two surgeries — the laparoscopic procedure done by Clark, and the complete hysterectomy performed by Morrison — -Duncan offered his expert opinion of the appropriate standard of care. He focused on the discrepancy between Clark’s surgical findings and the pathologist’s finding that no ovaries were found in the tissues cut from Munoz’ body. Dun can made no condemnation of Clark’s surgery but found what he faded to do afterwards negligent.
Dr. Duncan maintained the surgeon who received such a pathology report must not shrug it off and ignore it. In his view, when receiving such a report a surgeon should assume “what you sent to the pathologist wasn’t what you thought you sent.” The surgeon must then take steps to explain the differences between his surgical findings and the pathological findings. Duncan pointed out that Clark failed to employ simple tests after the surgery to decide if Munoz still had her ovaries; a CT scan, an ultrasound examination, or a blood test for a hormone that elevates quickly in a woman’s blood after the ovaries are removed. Duncan said Clark’s failure to perform these tests and discover the reason for the discrepancy with the pathologist’s report breached the professional standard of care.
Then, Dr. Morrison testified about the professional standards of conduct concerning communication between doctors treating the same patient. Simply put, a surgeon must tell the primary care physician about the surgical procedures performed in a case and the resulting physical condition of the patient. In his opinion, Morrison asserted the correct standard of care included telling the referring physician “what you thought you did to the patient, and— I would also send a copy of the pathology report.” Further, Morrison thought the proper standard of care includes raising any discrepancies between surgical and pathological findings, not ignoring them.
There is expert causation evidence in the record on appeal.
Moving on, we examined the record on appeal for competent evidence of injury caused by Clark’s negligence. The record indicates that expert testimony supported Munoz’ claim that Clark’s failure to resolve the discrepancy between his findings and the pathology report caused her pelvic pain. At trial, Morrison testified that Munoz’ pelvic pain came from her endometriomas and adhesions. Although she complained of cramping during menstruation, Munoz had not suffered chronic pelvic pain when she first consulted with Dr. Norris. This pelvic pain condition started after the laparoscopy. Morrison defined endometriomas to be “ovaries containing endometrial tissue.” Thus, Clark’s failure to follow the standard of care and explore the reasons why the pathologist’s report stated no ovarian tissue was found meant that Munoz’ ovaries remained in her body, a condition unknown by any health care professional providing her treatment or the patient herself. No further steps were taken to remove them. Since they remained within her, Munoz’ condition worsened and the now liquid-filled ovaries caused Munoz to suffer pelvic pain between 2002 and 2004. The jury could justly conclude from such evidence that Munoz suffered injury caused by Dr. Clark’s negligence.
We follow our standard of review. Having drawn all inferences from the facts in favor of Munoz, the party against whom the motion was sought, we hold that competent professional evidence exists from which a jury could find a verdict in favor of Munoz. We uphold the trial court’s ruling on the motions.
Since Munoz presented expert causation testimony, we will not address two of Clark’s subsequent appellate issues. Obviously, since we held there is expert causation evidence for pelvic pain, that evidence serves as a platform to support a jury award of noneconomic damages. Clark contended that with no expert opinion there could be no award for noneconomic damages. This was Clark’s second issue. His fourth issue, a claim that the court erred for failing to instruct the jury that only expert medical testimony can establish causation, is moot because there is expert testimony here. We will explore that claim no further.
Instead, we will look at Clark’s remaining two issues. Next, he contends the medical expenses awarded by the jury were contrary to the evidence. For his final point, Dr. Clark urges us to rule that the trial judge abused his discretion by permitting Dr. Duncan to testify about matters beyond those contained in his report. We are not moved to reverse by either issue, but we will address them in that order.
The claim about medical expenses has changed.
Initially Dr. Clark argued that the jury’s verdict did not comply with one of the exhibits. He later discovered that he was using an .incorrect copy of the exhibit and has modified his request to us accordingly. Clark continues his attack on the expenses for the CT scan, the hormone replacement therapy, and the emergency room costs. Clark argues that if he had tried to reconcile the discrepancy between his clinical findings and the pathology report, he would have ordered the CT scan, and when it revealed the presence of her ovaries, he would have removed them in a later surgery and treated Munoz with hormone replacement therapy. Because Munoz would have incurred these costs even if properly treated, Clark requests the jury’s verdict for medical expenses be reversed. Munoz agrees with Clark that the cost of a sonogram should not have been included in the judgment and asks that a reduction of $129.36 be made.
Our standard of review on this point is clear. When a party challenges a jury verdict for insufficiency of evidence or as being contrary to the evidence, it is not the function of the appellate court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene. City of Mission Hills v. Sexton, 284 Kan. 414, 422, 160 P.3d 812 (2007).
The evidence fails to prove that Munoz would have incurred the expense of a CT scan had Clark treated her properly. First, Norris testified that she would not have ordered the CT scan:
“Q [Clark’s counsel]. And assuming Dr. Morrison told this juiy that in light of the findings of the sonogram, even if he would have known that she still had her ovaries, he would have likely ordered the CT, you don’t have any reason to disagree with that, would you?
“A. No, I just wouldn’t have ordered it.” (Emphasis added.)
Second, Dr. Morrison indicated he would have ordered the CT scan if “it looked like a neoplasm,” but Munoz’ sonogram report did not indicate the presence of a neoplasm — that finding came from the CT scan. Third, Dr. Duncan opined that in Munoz’ case, the only testing required to resolve the discrepancy was a blood test or ultrasound.
Likewise, the evidence does not allow this court to conclude, as Clark suggests, that Munoz would immediately have been treated with hormone replacement therapy had Clark properly followed the standard of care. For example, even though Munoz had her surgery with Morrison on June 11, 2004, when her ovaries were really removed and she knew it the facts show that Munoz did not start taking hormone replacement medications until July 22, 2004, over a month later.
Also, we must include the costs of unnecessary treatment, namely the hormone replacement therapy as damage flowing from Clark’s negligence. There is no need to guard against postsurgical menopause with hormone replacement therapy if the organs that produce that hormone remain within the body. Munoz’ primaiy care physician was unaware of the presence of ovaries until after the surgery performed by Morrison. Her statement on the point is forthright and undeniable:
“Q [Munoz’ counsel]. Dr. Norris, had you known on August 28th, 2002, that Dr. Clark missed the ovaries, would your course of treatment of Margarita Munoz have been any different?
“A. Well, she would not have been on hormone replacement therapy.” (Emphasis added.)
Next, in our view, the evidence shows that Munoz went to the emergency room for abdominal pain. Munoz’ pelvic pain was a proximate result from Clark’s breach of standard of care. Therefore, had Clark followed the standard of care, Munoz would not have incurred this emergency room expense. Viewing this evidence in the light most favorable to Munoz, as we are required by law to do, there is no reason for us to modify this judgment except for the expenses of the sonogram. We will remand for the district court to make that simple reduction.
In his final issue on appeal, Clark maintains that Dr. Duncan, the expert witness hired by the plaintiff, was set free by the district court to offer several opinions to the jury that could not be found in his report or his deposition. The district court allowed Duncan to tell the jury what he would have told Munoz in this case; also he told the jury the standard of care applicable here included telling the patient his surgical findings did not correspond with the pathologist’s report; further, he told the jury that surgeons should tell their patients the truth. Duncan also offered the opinion that surgeons should report to the referring physicians and be truthful with them as well. In Clark’s opinion, this wide range of opinions offered suddenly at trial crippled his ability to prepare a defense and rebut them.
We review this issue under an abuse of discretion standard. “The admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of such discretion. [Citation omitted.] One who asserts an abuse of discretion bears the burden of showing such abuse. [Citation omitted.]” Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934, (2001). We also point out that K.S.A. 60-456(b) comes into play here. That statute permits an expert to continue to form opinions even at the trial:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at tire hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
See also Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978) (“The introduction of opinion or expert testimony is controlled by K.S.A. 60-456. An expert must base his testimony upon facts personally perceived by or known to him or made known to him at the hearing.”).
Here, Duncan’s opinion of how he would advise Munoz of the discrepancy and his interpretation of the photograph of Clark’s surgery was based on facts made known to him at the jury trial. Furthermore, Duncan’s opinion was within the scope of his special knowledge, skill, and experience. Therefore, this evidence was admissible under K.S.A. 60-456(b).
The district court denied Clark’s motions on the basis that Duncan did not exceed the scope of his earlier sworn statement. Duncan’s expert report provided the following medical opinion:
“Medical opinion: It is my opinion that the postoperative care of Ms. Munoz was a deviation from the standard of care. Standard of care dictates that discrepancies of findings at tire time of surgery and final pathology findings must be reconciled. Either the surgical diagnosis is changed and modified or additional evaluation of the pathology specimen needs to be performed to ensure the two are reconciled.
“Not only was the discrepancy not investigated, Ms. Munoz was erroneously treated for a condition that she did not have, surgical menopause. This occurred as a direct result of not reconciling discrepancies.
“There is clear evidence that Ms. Munoz’s ovaries were not removed at the time of surgery ivith Dr. Clark and that he subsequently reported that they had been removed and he treated Ms. Munoz medically as they had been removed. This is a clear deviation from the standard of care.” (Emphasis added.)
In Duncan s expert report, he set forth an opinion that Clark violated the standards of care by inaccurately reporting that Munoz’ ovaries were removed. At trial, Duncan specified that Clark’s error in reporting was directed at Munoz and Norris. Therefore, the district court was correct in finding that Duncan’s testimony did not exceed the scope of his opinions beyond his previous disclosures. Finally, we question whether Clark could raise a defense against telling his patients and their referring physicians the truth. We find no merit in this issue.
Affirmed in part, reversed in part, and remanded to subtract $129.36 from the judgment awarded to Margarita Munoz. | [
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Opinion by
Holt, C.:
The evidence shows that plaintiff came from Missouri at the request of defendant, and performed the ordinary household work in defendant’s family, and also herded his cattle at all seasons of the year, under the promise of being sent to school, and taught to play the organ. Defendant neither sent her to school nor taught her to play the organ, but failed in every way to fulfill his contract with her. Upon the failure of the defendant to pay in the particular way agreed upon, then the plaintiff is entitled to compensation in money upon refusal to pay in the way specified. (Stone v. Stone, 43 Vt. 180.) There was no time agreed upon that she should work for defendant. When one is hired for an indefinite period, the party employed can leave at any time without giving any reason therefor. (Kirk v. Hartman & Co., 63 Pa. St. 97.)
The defendant in error urges that because of the relation existing between plaintiff and defendant, and the fact that plaintiff was one of the defendant’s family, she ought not to recover in this action. We believe that where a near relative is taken into the family and treated as a member thereof, there is a strong presumption created that no payment or compensation was intended to be made for services by one to the other, beyond that received during the time they were rendered; and it will take clear and satisfactory proof to remove the presumption that their relation was one of near relatives in the same family, rather than that of master and servant. (Ayres v. Hull, 5 Kas. 419; Greenwell v. Greenwell, 28 id. 413, 675; Hall v. Finch, 29 Wis. 278; Williams v. Hutchinson, 3 N. Y. 319.) The nearer the relation, the stronger the presumption that they regard themselves and are to be treated as members of the same family, and not as master and servant. On the other hand, the more distant the relation the weaker the presumption that they are to be treated as members of the same family. In the case of Ayres v. Hull, cited and relied upon by defendant, the relation of brother and sister existed; very much stronger than that of uncle and niece by marriage, as in this case. In recognizing the ordinary rule, the court says in that case:
“So many considerations, other than those of a mere pecuniary character, enter into the minds of persons closely related in making up the family, that it would be both violent and dangerous to infer a promise from the kindly and sociable acts growing out of such relations.”
But the court also says in the same opinion:
“ There is not one word of testimony tending in the slightest degree to show either an express promise to pay, or a specific contract, or that there was any understanding that the decedent was to pay for the services rendered, or that the relation of debtor and creditor was growing up between the parties.”
In this case there was a distinct promise to pay, not in money, but payment that would have been of as much value, at least to a girl just growing into young womanhood. Some of the evidence tends to show that she was required to do and did do more than the ordinary labor of a well-ordered household. The paper which defendant filed with the justice of the peace before whom this cause was first tried, whether an account kept against plaintiff, or a simple memorandum, as he claimed it to be, plainly shows from the items therein contained that at one time he regarded her as his hired servant. He charged her for clothing, medicines, doctors’ bills, lost time, and furniture she carelessly destroyed. There was testimony showing the value of plaintiff’s services sufficient to authorize a judgment in her favor. The plaintiff was only thirteen years old when she began to work for defendant; and it may be when the evidence of defendant is offered in another trial of the case, the cause of action established by the evidence of plaintiff may be fully met and overborne; but under the testimony brought here, the court erred in rendering judgment for the defendant.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff undertakes to procure a vacation of the judgment and a new trial on the ground of fraud alleged to have been practiced by Lovejoy in obtaining the judgment, and because of the neglect of his own attorney in failing to appear and defend at the trial, and also in failing to notify him when the trial would occur. It is manifest that the plaintiff sought to bring his case within the provisions stated in subdivisions 4 and 7 of § 568 of the code. The statute prescribes that proceedings to vacate a judgment on the grounds mentioned “shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying is defendant.” (Civil Code, §570.) The petition fails to conform to these requirements, and hence the demurrer was rightly sustained. It fails to set forth the petition, answer, or judgment, in the original action, although reference is made to them. The answer, if any was filed, may or may not have stated a defense. It may have substantially admitted the allegations of the petition, and thus have rendered the presence or absence of Mulvaney unimportant. Not only has he failed to state what the answer was, but he has omitted the more important allegation that he had an existing and valid defense when the present action was begun. This is essential. Judgments will not be set aside merely to allow a defendant to make a technical objection or an ineffectual defense. The pi’ovisions of the code under which this action is brought were enacted in furtherance of justice, aud to relieve parties from unjust judgments that were obtained through no fault of their own. If the defendant has no valid defense, and the result of a second trial must be the same as the first, no actual injustice has been done, and it would be idle to disturb the judgment. The facts constituting the defense should be fully stated, and from them it must appear that the defendant has an existing, legal and meritorious defense. In this respect the petition in the present action is fatally defective, as well as in failing to set forth the judgment complained of. (Hill v. Williams, 6 Kas. 17.)
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
Johnston, J.:
It is earnestly contended by the plaintiff in error that the evidence is insufficient to sustain the finding that , the railroad company was negligent in the construction and maintenance of the bridge which occasioned the injury; and that even if the company was negligent, the testimony shows that at the time of the accident Irwin was not exercising that prudence and care which was required of him, and hence ought not to recover. The testimony shows that the bridge in question is built over the Walnut river, about one-half mile from the'station at El Dorado. It was so constructed that the top beams were sufficiently high to permit a person standing on the center of the top of a box car or caboose to pass through without colliding with these timbers, but there were braces, extending from the posts of the bridge to the top beams, which were only about four feet above the outer edge of the top of such cars. A person of ordinary height standing in the center of a car could pass through the bridge with safety, but was in danger of being swept from the cars if he stepped a foot or two from the center. Irwin was the conductor of a freight train, and was standing on the top of the caboose, at the side of the cupola, when he was struck by one of these overhead braces. The brace was so low that it struck him below the shoulders, and, according to the testimony of one witness, it was only three feet and nine inches above the outer edge of the roof of the caboose. It was the duty of the railroad company to use ordinary care in providing tracks and bridges that would be reasonably safe for its employés in discharging the duties they were called on to perform. Brakemen and conductors of freight trains are frequently required to be on the top of the cars, both night and day. The hazards of such positions are great, and the duty of the company required that its employés®should not be subjected to unnecessary perils from structures over and along the track which, by proper diligence on the part of the company, might be changed or removed. The necessity for a contrivance as dangerous as the overhead structure of this bridge was, is not apparent. Indeed, it seems to have been otherwise planned, but was botched in the construction. E. S. Farnsworth, a witness for the company, and the engineer who furnished the plan for the bridge, stated that it was intended to be a standard Howe truss bridge in every particular, and that it was constructed of the usual height aud width, and that the braces were a necessary part of the bridge, and that it was customary to put them in bridges in the same position and place as they were placed in the bridge at El Dorado. However, he stated that if the bridge was built according to the plans, he could not conceive how an employé on the caboose of a train could be struck by one of these braces; and he further stated that it would be more than six feet from the outer top edge of an ordinary caboose to the braces in the bridge. F. W. Tanner, the general foreman of bridges for the railroad company, testified that he had had fifteen years’ experience in building and constructing railroad bridges. He was asked: “Could these braces in a bridge properly constructed with due regard to the safety of employés be low enough to strike a man of ordinary size on top of a car of ordinary height and width ?” He answered : “They should not, providing the car was on the track and passing through the bridge as it should do.” James Standard, an assistant superintendent of bridges for the railroad company, of nineteen years’ experience in the building and construction of railroad bridges, stated that a railroad bridge should be so constructed that there would be no danger of a man striking the braces on any part of an ordinary car. This testimony would indicate that it was neither necessary nor intended in the first instance that the bridge should be so low as to be dangerous for employés to stand erect upon the top of any of the ordinary cars. It cannot be doubted that these facts were sufficient to go to the jury on the unsafe and unsuitable character of the bridge, and also sufficient to sustain the finding of the company’s negligence in so constructing and maintaining it. With reference to such structures, Mr. Beach, in his work on Contributory Negligence, p. 364, says:
“If the roof or overhead structure of the bridge is so low that it will strike a brakeman standing erect on the top of his train, it is an essentially murderous contrivance, and it is not creditable to our jurisprudence that such buildings are not declared a nuisance. There is nothing in the reports worse than the cases that sustain the railway corporations in building and maintaining these man-traps.”
The same question was before the supreme court of Indiana, where a brakeman was swept from the top of a freight train by a low bridge, and severely injured. He had no knowledge that the bridge was low, or that it would interfere with the performance of his duty on top of the train while passing through. It was there urged that the defect, if any, was open and obvious, the dangerous character of which he had opportunity to ascertain, and the risk of which he assumed. The court ruled that it was the duty of the railroad company to construct and maintain its roadway and overhead structures in such a condition that an employé can perform all the duties required of him with reasonable safety; and as the bridge was insufficient in height, of which fact the employé had no knowledge, the injury was the result of the company’s negligence, and for which the employé was entitled to recover. The court referred to the cases relied on by the railroad company in the present case, but refused to follow them. (B. O. & C. Rld. Co. v. Rowan, 104 Ind. 88; same case, 23 Am. & Eng. Rld. Cases, 390; same case, 3 N. E. Rep. 627.)
C. & N. W. Rld. Co. v. Swett, Adm’r, 45 Ill. 197, was an action to recover damages for causing the death of a fireman. The train on which he was working was precipitated through a bridge which was defectively constructed and maintained, and he was immediately killed. The court, in speaking of the duty of the company, and the peril which the employé assumed when he entered its service, said:
“The peril consisted in the defective construction of the road and its appurtenances, its culverts and bridges, which the fireman could know nothing about, and which he could not have discovered by the exercise of ordinary precaution and prudence; indeed, he was not required to know anything about that; the implied undertaking of his employers, that the road and culverts and bridges were properly constructed and safe for the passage of trains, was sufficient for him. He embarked in the service on the faith that it was a properly constructed road, and that his superiors were in the exercise of all the diligence necessary to keep it in good repair. . . . There is no rule better settled than this, that it is the duty of railroad companies to keep their road and works, and all portions of the track, in such repair and so watched and tended as to insure the safety of all who may lawfully be upon them, whether passengers, or servants, or others. They are bound to furnish a safe road, and sufficient and safe machinery and cars. Por their failure in this, and their employés not knowing the defects, and not contracting with express reference to them, the companies must be held liable for such injuries as their employés may suffer thereby.”
, . .. 4. Ordinary care findi'ngfñot ciistui ea.
The same doctrine was announced in Ill. Cent. Rld. Co. v. Welch, 52 Ill. 183, where the plaintiff was injured while in the discharge of his duties as brakeman of a freight train, by an awning projecting from a station house to a dangerous position, and which knocked him from the top of a car while engaged in the discharge of his duty. It was held that this was such negligence as made the company liable for the damages sustained. C. & I. Rld. Co. v. Russell, 91 Ill. 298, was a case where a railroad company permitted a telegraph pole to stand for a period of three years so near to a side track that it was within eighteen inches of passing freight trains, so that a brakeman in descending from the top of a freight car while in motion, in the performance of his duty, came in collision with the pole, and was thrown from the car and killed. It was held to be culpable negligence in the railroad company, to permit, for so long a time, such an obstruction to be in such close proximity to its track. C. & A. Rld. Co. v. Johnson, 4 N. E. Rep. 381, was an action to recover for a personal injury suffered by a brakeman on a freight train while passing through a covered bridge. In affirming a judgment in favor of the brakeman, the court approved of an instruction to the effect that where a railroad company constructs a bridge along the line of its road, it should build it of sufficient height so that persons employed by the railroad company as brakemen, and who are required to go upon the top of freight cars in discharging their duty as brakemen, while going through a bridge may pass through and under the bridge without danger to their personal safety ; and that the law does not require of a brakeman that he should absolutely know all the defects of construction and all the obstructions there may be along the line of the road. In Clark, Adm’x, v. St. P. & S. C. Rld. Co., 28 Minn. 128, a brakeman was killed by striking an awning which projected over a side track in such a position that its lowest projection would strike a man of ordinary height on the head, while it would not come in contact with a man standing eight inches or a foot aside from the center of the car. The brakeman was struck by the corner of the awning while engaged in the performance of his duty in moving freight cars upon the side track. The court held that the railroad company failed in its duty to the brakeman, and that if the brakeman had no knowledge of the peril the company would be responsible for the injury. (See also Greenleaf v. D. & S. C. Rld. Co., 33 Iowa, 52; Allen v. B. C. R. & N. R. Co., 57 id. 623; Dorsey v. Construction Co., 42 Wis. 583; Walsh v. Oregon Rly. Co., 10 Ore. 250; H. & T. Rly. Co. v. Oram, 49 Tex. 342.) The doctrines of these authorities more clearly accord with our views than do some of those cited by the plaintiff in error. Most of the latter, however, were disposed of on the theory that the employé had actual knowledge of the peril which he encountered. In this case the jury have said, and not without testimony, that Irwin had no knowledge nor opportunity to know of the dangerous character of the bridge. It is true that he had run over the road and through the bridge daily for three months preceding the accident. He knew of the existence of the bridge, and that it was constructed with overhead timbers, but it does not necessarily follow that he was acquainted with the proximity of the braces to the top of the caboose or cars. When he entered sel'vice of the company he assumed the ordinary risks incident to the service; and if he enters or continues in the service with a knowledge of the risk or danger, and without objection, he must abide the consequences. (Jackson v. K. C. L. & S. K. Rld. Co., 31 Kas. 761; K. P. Rly. Co. v. Peavey, 34 id. 472; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 id. 129.) The law, however, does not require that au employé shall know of all defects or obstructions that may exist on the road, or in the service m which he is engaged; and it cannot be said that the peril in this case was so obvious and patent that Irwin must have known it. He had a right to assume that the company had done its duty and placed its track in such a condition that he could perform his duties with reasonable safety. The fact that a portion of the bridge was sufficiently high to clear a man’s head while standing on top of a car, and other parts were not, made the bridge all the more deceptive and dangerous. Irwin, being a •conductor, was not called to the top of the train so frequently ns brakemen were, and hence would be less likely to notice the lowness of the timbers in the bridge. He testified that he supposed the bridge was sufficiently high so that it would be safe to stand on any part of the car. Several brakemen and others who passed through the bridge stated that they could not say from looking at the bridge that the braces were so low as to strike or injure one who was on top of a train. Men of experience say that it is a very difficult matter to tell exactly how high an object is above a moving train. The smoke of the engine, and the side or swaying motion of the cars, render it hard to see and comprehend the proximity of the overhead timbers of a bridge, and this is very well shown by the widely-differing statements of the witnesses respecting the height of the braces in question. It does not appear that Irwin had been on top of the cars while passing through the bridge more than once before the time of the accident, and he says that he knows of no other bridge on the road with braces so low as they are in this one. The plaintiff had unloaded freight from his train at the station at El Dorado, and in accordance with the directions of the train master had backed down half a mile in order to make a run over a high grade,, and over the crossing of the Atchison, Topeka & Santa Fé railroad, which was a few yards beyond the station. A train on that road was approaching the crossing, and Irwin sent one of his brakemen to flag the crossing, while he ran back over the cars of his train to the caboose. He remained on top of the caboose to watch the Santa Fé train in order to give the necessary signal and avoid a collision. It seems that on the previous day his train had almost collided with the Santa Fé train at the same crossing. It is said that Irwin might have required a brakeman to perform the duty on top of the caboose instead of going there himself; but it appears that his- action in that respect was not outside of the scope of his-duties. Under all the testimony, we cannot say that the danger was so open and obvious that Irwi n knew or should have known of it; nor can we say that he was guilty of contributory negligence. Whether he acted with ordinary is a mixed question of law and fact which was proper for the determination of the jury,, taking into consideration all the facts and circumstances. The jury has passed upon the question on competent testimony,, and we are unable to say that its finding is. unwarranted. (Huddleston v. Lowell, 106 Mass. 282; Conroy v. Vulcan Iron Works, 62 Mo. 35; Dale v. Railway Co., 63 id. 455; Wood Mas. & S., §§ 376, 385, and cases heretofore cited.)
Complaint is made of the ruling of the court in refusing several instructions requested by the plaintiff in error. The-third was a declaration that the company would not be liable if Irwin could have protected himself by the use of ordinary care. The court stated this rule favorably enough for the company, where it instructed that —
“If the bridge in question was of sufficient height and width to enable employls, while in the discharge of their duties on top of freight and caboose cars in use at the time on defendant’s road, to pass through it with safety by the use of ordinary care to protect themselves from injury, then defend ant would not be liable for plaintiff’s injury. The law does not require the defendant to furnish a bridge which the plaintiff could not be injured on, but is only required to furnish such a bridge as the plaintiff could pass through in safety, in the performance of his duties to the company, while exercising ordinary care for his personal safety.”
The ninth request related to the knowledge of Irwin, holding that if he had knowledge of the bridge, or reasonable opportunity to know of its proximity to the top of the cars, he could not recover. The instruction as drawn was not exactly in harmony with the view we have taken, but the company has no cause to complain with respect to this rule, as the twentieth and twenty-second instructions given by the court stated that if he knew or had opportunity to inform himself of the condition of the bridge and the position of the braces, and their proximity to the top of the caboose, he could not recover; and further, that if he had a fair opportunity for acquiring a knowledge of the condition of the bridge and its danger while passing thereunder, if there was any, but ignored such knowledge or opportunity, and neglected to avail himself thereof, he cannot derive any advantage from such ignorance or want of knowledge, but his rights are to be determined the same as if he possessed the knowledge he might have acquired by the reasonable exercise of his faculties. The tenth request related to the duty of the company in the construction of the bridge, which duty was stated more fully and correctly in several instructions that were given. Objections are made to the twentieth and twenty-third instructions that were given. They relate to the rule fixing the liability of the company where an employé has knowledge of the danger which he encounters. We do not think the criticisms of counsel are justified. But as the jury has expressly found that Irwin had no knowledge of the defect in the bridge, thesé instructions become unimportant.
We have examined the objections to the admission of evidence, and it is sufficient to say that we do not regard the rulings to have been prejudicial to the rights of the plaintiff in error.
5. Misconduct ofcounsel; review, when.
One of the grounds for a new trial was the misconduct of counsel in his closing argument. The affidavits which were filed in the case show that the remarks of counsel were outside of the evidence, and were clearly improper. However, no objection to the remarks was made, except to the statement that Irwin would wait in misery and pain for the coming-in of the jury, and that he hoped they would give more than the jury did before, to pay for the long trouble and the long work. The objection to this statement was promptly sustained by the court, and the attention of the court below was not called to any other of the objectionable statements. Of course the arguments should be confined to the facts brought out in the evidence, and it is error to allow counsel, over objections and exceptions, to discuss matters foreign to the evidence and prejudicial to the opposing party. But in exercising its appellate jurisdiction, this court is limited to the review of the alleged errors committed by the district court; and generally speaking, the attention of the trial court should be called to the improper language of counsel, and a ruling had upon the objection, in order to present the question here. There being no exception to the ruling on an objection, nor any unsustained objection, we cannot say the court erred. (The State v. McCool, 34 Kas. 613, 617.)
Some other objections were made, all of which have been examined, but we find nothing in the case that will justify a reversal, and hence the judgment of the district court will be affirmed.
All the Justices concurring. | [
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