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The opinion of the court was delivered by
Mason, J.:
L. C. Fisher brought an action against W. H. O’Brien for injuries he claimed to have received in consequence of a spring wagon in which he was driving being run into by an automobile driven by O’Brien in the same direction. The plaintiff recovered a judgment and the defendant appeals.
The petition alleged that the accident was due to the negligence of the defendant in traveling without any light other than that furnished by a lantern fastened in front of the 'automobile, in running at too high a rate of speed, in being intoxicated, in failing to keep an outlook, and in failing to stop or turn out after he discovered or should have discovered the wagon. The answer contained a general denial and alleged that any injuries the plaintiff received were due to the frightening of some horses which were being led by him and a companion, in a careless and improper manner, and to his negligence in not being provided with a secure seat, in not turning out so as to give the defendant room to pass, and in not controlling his horses. The jury found that the defendant was not intoxicated, that they did not know whether he was traveling faster than twenty miles an hour, and that his negligence consisted in “driving his car without sufficient lights.” The defendant complains of the giving and refusal of instructions, of the rejection of evidence, and of the refusal to set aside the verdict and the finding of negligence as unsupported by the evidence. An instruction regarding the effect of the intoxication of the driver of an automobile- was rendered immaterial by the finding that he was sober. Instructions as to various other forms of negligence need not be considered, since the verdict was based Upon the ¿bsence of proper lights.
1. The defendant maintains that the province of the jury was invaded by an instruction to the effect that independently of any statute on the subject it is negligence as a matter of law for a motorist to run an automobile along the highway on a dark night at such speed that he can not stop his machine within the distance he can- see objects, ahead of him. This rule was declared in Lauson v. Fond du Lac, 141 Wis, 57, and was referred to with inferential approval, in support of the proposition that one of the purposes of headlights is to enable the driver to see ahead of him, in Giles v. Ternes, 93 Kan. 140, 144, 143 Pac. 491, where it was said that the lights must be sufficient to enable him to see a reasonable distance in the direction in which the automobile is proceeding (p. 144). The rule has also been applied in the following cases, which are collected in notes to Berry on Automobiles, 2d ed., § 133 Harnau v. Haight, (Mich. 1915) 155 N. W. 563; Curran v. Torch, Appellant, 247 Pa. St. 429; West Const. Co. v. White, 130 Tenn. 520. In the Kansas case cited this court has determined that where a light is required at all one of its objects is that the driver may be advised of possible obstacles in the road, and that to be adequate to the purpose it must enable him to see ahead for a reasonable distance. We think it can safely be said as a matter of law that the distance is not reasonable unless the road is illuminated for at least as far as the distance required for stopping the vehicle. The instruction given by the trial court is therefore approved.
2. The defendant lived eight miles south of Garden Plain, and was on his way home from that place wlien the accident occurred. He testified that before he got out of town his lights were very dim, and before he had gone a mile he had no lights at all; that he rode on until he reached the place of an acquaintance, where he borrowed the lantern, which he hung in front of the radiator. It is argued that these circumstances justified his proceeding without other lights, and that the rule just stated did not apply in such a situation. The findings of the jury that the defendant was not, so far as they knew, going as fast as twenty miles an hour, and that his negligence consisted in driving his car without sufficient lights, must be interpreted as meaning that he was negligent in traveling in the manner he did — at the speed he was going — without better lights, that the rate of travel was not negligent in itself, but was such as to make it negligence not to have a more effective illumination. The speed and the range of the lantern were correlative, and the same idea is conveyed whether the negligence is described as traveling too fast with such a dim light, or in having such a dim light while traveling so fast. The light was constant, but its protective effect varied in versely with the speed. The situation was not merely one to which the rule stated was applicable — it was peculiarly adapted to illustrate its soundness.
3. An instruction was given to the effect that a violation of the statute which results in an injury to another is negligence as a matter of law, and therefore if the defendant operated his automobile in the manner alleged [that is, at a high speed, or what is essentially the same thing, with a dim light] so as to endanger the life or limb of any person [that being forbidden by section 7 of chapter 65 of the Laws of 1913] and thereby caused the injury complained of, the verdict should be for the plaintiff, unless he were guilty of contributory negli/gence. This is objected to as eliminating all questions of the plaintiff’s diligence and of the defendant’s negligence being the proximate cause of the injury. Elsewhere the jury were told that the negligence of the defendant would not furnish foundation for recovery unless it was the proximate cause (which was duly defined) of the injury, and that contributory negli_genre_wa3„a_cpmplete defense if established. The instruction is also criticized, as too indefinite^because it does not designate what provision of the statute is referred to. We think the fair interpretation of the language used was that indicated in the bracketed clauses, inasmuch as a subsequent instruction quoted the provision from the section above cited forbidding the operation of a motor vehicle at a rate of speed such as to endanger the life or limb of any person.- The instruction in which that quotation occurs is criticized as submitting questions not within the pleadings. The petition did not allege that the defendant ran his car at such a rate of speed as to endanger the plaintiff’s life or limb, but it alleged that the speed was over twenty-five miles an hour and was unlawful, and that the injury resulted therefrom. Under this allegation the issue was not confined to the particular rate of speed named, and it was proper so submit the question whether the speed was such as to endanger life or limb.
4. Exception is taken to an instruction that the jury, in arriving at their verdict, were at liberty to make use of the general knowledge which they possessed in common with the rest of mankind. This is in accordance with approved practice. (Missouri River R. R. Co. v. Richards, 8 Kan. 101.)
5. Complaint is made of the refusal to give a number of instructions, chiefly relating to contributory negligence. The allegations of the answer invoking this defense were set out quite fully in the charge, and as already stated the jury were instructed on the subject in general terms. The omission to deal 'vyith the matter at greater length does not appear to us to have been prejudicial. A requested instruction regarding proximate cause which was refused was covered by a definition of the term coupled with a statement, that the negligence of the defendant would not furnish a foundation for a verdict for damages unless it were the proximate cause of the plaintiff’s injury. The trial court refused to instruct that no recovery could be had unless there was an actual physical contact and impact between the automobile and the rear end of the wagon, that being the allegation of the petition. 'To have given it would have held the plaintiff too, closely to the literal allegations of his pleading. If, for instance, the evidence had shown the automobile struck the side of the wagon, or struck a led horse and threw it against the wagon, there would have been no substantial variance.
6. Evidence was introduced by the defendant that the plaintiff had been told by the owner of' the horses that were being led, and in whose employ he was, to bring them by a different road, on account of their wildness, and to get them home before dark. This was stricken out on the motion of the plaintiff, and the ruling is complained of. Whatever relevance this evidence might have had in a controversy between the plaintiff and his employer, it had no place in the present action. If the plaintiff disobeyed his instructions he thereby violated no duty which he owed to the defendant.
The contention that the evidence did not warrant the verdict or findings is held not to be well founded, but is not thought to require further discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Charles S. Ergenbright against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries sustained while he was in the service of the company. The jury returned a verdict in favor of plaintiff for $5000 and from the judgment thereon the defendant appeals.
The first contention is that jurisdiction of the defendant was not obtained by a valid service or other means. It appears that the defendant had a line of railroad which extended into Kansas a distance of two miles to the city of Coffey-ville. In 1909 the company entered into an arrangement with the Missouri Pacific Railway Company for the transfer to the latter of that part of the road which extended into Kansas. Afterwards it ceased to file reports with the secretary of state and its right to transact business in the state was finally'revoked on July 21, 1914. The injury occurred on July 30, 1914. There was testimony in behalf of the defendant to the effect that in the accounting of business, as between the defendant and the Missouri Pacific Railway Company, the line of division was at the state line; that each was a separate and distinct organization; and that W. H. Tester, On whom the service of process was made, was the agent of the Missouri Pacific Railway Company and not of the defendant. Other testimony, however, was to the effect that in dealing with the public Tester was held out by the defendant as its agent. In the folders, time-cards and advertising matter issued by the defendant, Tester was represented as its agent at Coffeyville. He testified that he acted for the defendant as well as the Missouri Pacific Railway Company in selling tickets and issuing bills of lading and that his duties as agent were substantially the same after the transfer of the property to the Missouri Pacific Railway Company as they had been before that time. The trains of the defendant were run through from Van Burén, Ark., to Coffeyville, without a break or change of control at the state line, and it appears that the trains were operated in Kansas by the defendant and that it actually did business there. The questions whether or not the defendant was doing business in Kansas and whether or not Tester was its agent were issues of fact which were determined by the court and it is reasonably clear that there was testimony to support the finding of the court that due service had been made.
The principal contention is that the evidence did not support the charge of negligence made against the defendant and that there was no basis in the evidence for the verdict of the jury. It appears that the plaintiff on the night of his injury was employed as a bfakeman on a freight train of the defend ant which had taken the.siding at Oolagah, Okla., to allow passenger and mail train No. 119, southbound, to pass. The tracks run north and south and the station is located west of the tracks and has a platform, at the north end of which a mail crane stood, the latter being about seventy-five feet north of the station building. The plaintiff, after having crossed over the tracks at a point nearly opposite the north end of the platform, was walking northward along the west side of the main track toward a switch about 800 feet distant which he intended to throw after the passenger train had passed, when he was struck near the neck and shoulders by the mail sacks thrown out of the mail car of the passenger train, which was moving at the rate of about fifty miles an hour. The mail sacks were discharged and the plaintiff was found about sixty feet north of the crane, with his feet about ten or twelve feet west of the rails. The plaintiff alleged that the postal employees had been in the habit of throwing mail sacks out at the station in a negligent manner and that with the knowledge of this practice the defendant had permitted it to continue for a long time. The night operator at the station, who had been employed about eight months, testified that it was his duty to go out after the mail train had passed and bring in the mail sacks, and among other things stated: “I think I have found sacks west of the ditch or depression I have spoken of in the weeds. Not very many times. Three, four or five times, not over six, I don’t think.” The ditch mentioned was a flat, sloping depression about ten or twelve feet wide extending along the west side of the track for drainage, and beyond this depression on the higher ground were some grass and weéds. The operator had told the agent that he had difficulty in finding the sacks. The postal employees testified that it was their duty to throw the sacks downward and outward just before reaching the crane upon being warned by three.blasts of the whistle, and that it was good practice if the sacks could be thrown within a distance of sixty feet of the crane, depending somewhat on the speed of the train. There was testimony that the bottom of the car would be about four feet from the ground and about on a line with a man’s shoulder; that to throw the sacks thirty feet from the track would not be good practice; and that as the rule re quired that'the sacks be thrown downward and outward it would not be good practice to throw them twelve feet from the car on a level with the floor of the car. The jury found, that complaint had been made by the operator who collected the sacks to the agent of the defendant as to the manner in which sacks had been thrown. There was also a finding that the negligence of the defendant on which the recovery was based was its failure to “report reckless discharge of mail to proper authorities.”
It.is insisted by the defendant that the finding was without any substantial support in the evidence and that there was no basis for holding the defendant liable for acts of one not in its employ and over whom it had no control. The one who threw the mail sacks which struck the plaintiff was not the servant or employee of the defendant and it is conceded that the doctrine of respondeat superior does not apply. He was an agent of the government and as to the manner of handling the mail was answerable to the United States and not to the defendant. A railroad company is not liable because of a single negligent act of the postal agent, but may become liable if it knows or should know of a custom or practice of the delivery of mail sacks in such a way as to endanger those rightfully at or near the place of ^delivery, without doing what it can to prevent a continuance of the negligent practice. The fact that the postal agent negligently threw the sack against the plaintiff on this occasion is not of itself sufficient to render the defendant liable.
In the early case of Muster v. The Chicago, Milwaukee & St. Paul R’y Co., 61 Wis. 325, it was held that the negligent act of the postal clerk could not be imputed to the railroad company unless the company itself was negligent and it was added:
“We conclude that the mere act of the postal employee in throwing off the mail-bag at the depot, conceding it to have been a negligent act, was not negligence on the part of the railway company.” (p. 331.)
In Galloway v. Chicago, M. & St. P. Ry. Co., 56 Minn. 346, the basis of the liability of the railroad company for an injury occasioned by a postal agent was stated as follows:
“To render it liable, as negligent, for the negligence of the mail agent, this government employe must have practiced a dangerous method of discharging mail sacks on the platform at this station so habitually, or so frequently, as to charge the company, as part of its duty to its passen gers and others occupying its depot platform by its invitation or license, with notice, actual or implied, of his' negligence or recklessness. While the railway company had no power to interfere with the mail agent in the discharge of his official duties, yet it was its right, as well as duty, to prevent him, while on its cars and on its premises, from continuing any negligent practice, of which it had notice, which was liable to cause injury to passengers and others lawfully there.” (p. 347. Notes, 6 L. R. A., n. s., 581; 13 Ann. Cas. 78.)
The mail sacks, as we have seen, were thrown frpm a fast mail train which ran past the station at a rate of about fifty-miles per hour. No claim is made that there was negligence as to the speed of the train on this occasion or at other times in passing the station. Neither is there any basis for a charge of negligence as to the place at which the sack was delivered. It was discharged about sixty feet from the mail crane arid the rule of the postal department is that it is to be delivered near the crane. Plaintiff testified that the sacks were delivered from 250 to 300 feet away from the platform, but other witnesses stated that the sacks were delivered from fifty to sixty feet from the crane, and the jury found that it was about sixty feet. The testimony was that delivery of sacks within that distance of the crane from a fast-moving train was good practice. It appears that the plaintiff left the east side of the track where he might have walked with safety as far as the risk of danger from the delivery of mail sacks was concerned, and went over on the west side of the track where the mail sacks were to be thrown. He walked close to the mail crane, and he knew the purpose for which cranes were used. He testified that he did not know that mail was delivered from train No. 119, although he had been a brakeman upon that train. At the stations along the line danger notices which he had seen had been posted, stating: “All persons are warned not to be or remain on the depot platform while mail trains are passing. Beware of mail sacks or packages thrown from trains.” The conductor of the freight train who was a witness in behalf of the plaintiff, testified that after the plaintiff crossed over to the west side of the track he walked along about as far from the rails as the mail crane stood, which was about eight feet, and that when he was picked up he was about the same distance from the track. The same witness at another time stated that the plaintiff was walking ten or twelve feet from the track and the testimony is that the train men found him lying about that distance from the track after the mail train had passed. It is plausibly argued that the plaintiff knew or should have known that mail was to be discharged from mail trains near the mail cranes; that he chose to walk in the place where the mail sacks were to be thrown; and that he assumed the dangers incident to the discharge of mail at that place. We will not dispose of the case upon that basis, but will determine it upon the theory that the company itself was not guilty of negligence. As we have seen, the company is not primarily liable and can be held responsible only upon the theory that it has customarily and without objection permitted the throwing of mail sacks by the postal agents in such a way as to endanger those lawfully at the places where they were thrown. Had a dangerous method been habitually followed with knowledge of the company, or had it continued so long as to be notice to the company? The testimony of the postal agents was that the sacks were thrown downward and outward in accordance with the directions of the postal authorities. They were not thrown where persons congregated nor where passengers were boarding or leaving trains. It is not claimed that sacks had ever been thrown upon or against any one at the station prior to the time when plaintiff was injured. The place selected for the discharge of the sacks was beyond the platform, which extended at least seventy-five feet north from the depot, and where there was little danger of injuring those who might have occasion to be at the station. In an attempt to show a dangerous practice of which the company had notice, testimony was offered to the effect that mail sacks had been delivered so that they rolled into the weeds at the side of the track. Notice of this method had been brought to the attention of the station agent. The night operator, who collected the sacks after delivery, testified that he thought sacks had been found in the weeds three or four times during the time he was employed at the station, a period of eight months, but not of tener than six times. The notice, or rather the complaint, which he made to the station agent was not that the sacks had been discharged so as to endanger persons who might be near the railroad but that they had 'gone into the weeds and were difficult to find. The weeds spoken of came within about twelve feet of the track. Those who discharged the sacks were required to throw them outward so they would not roll under the trains. Throwing the sacks outward and downward at the proper angle from a rapidly moving train as the rules required would easily carry them across the twelve-foot space and into the weeds. Thrown in the most careful and proper method, they would roll some distance after striking the ground. The plaintiff himself testified that he had seen sacks roll or slide six or eight feet. The fact that the sacks were delivered farther from the mail crane at one time than at another does not necessarily imply an improper delivery or the carrying on of a dangerous practice. Testimony that sacks rolled beyond the cleared space of twelve feet and into the weeds is not proof of an improper or dangerous delivery. It did not require the company to anticipate that an accident like the one in question was liable to happen. Notice to the company that mail sacks had rolled into the weeds was. not a notice that a dangerous method was in use by the postal agents, and the failure of the company to object to the method or to call upon the postal agents to adopt a different one can not be regarded as negligence on the part of the company. The findings of the jury that the defendant was negligent in knowingly permitting the postal agents to pursue a dangerous practice in discharging the mail sacks, and in failing to report a reckless discharge of the mail to the proper authorities, are not supported by the evidence. (Southern Ry. Co. v. Rhodes, 86 Fed. 422; McGrath v. Eastern Ry. Co. of Minnesota, 74 Minn. 368.)
The judgment of the district court will therefore be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
In a suit to foreclose a mortgage there was judgment for the plaintiff, from which the defendants appeal.
The real estate consists of a hotel property in the city of Dexter, and formerly belonged to the plaintiff. On the 16th of August, 1912, he-sold and conveyed it by warranty deed to the defendants, and the mortgage was given to secure a balance of $400 on the purchase price. The defendants filed a cross-petition and asked for $1500 damages alleged to have been sustained by reason of misrepresentations by the plaintiff in reference to the true boundary lines of the property, and claimed he represented that the hotel building was entirely on the lot in question; that they knew nothing about the boundary lines and relied wholly upon his representations; that in fact the entire west side of the building stood six feet and four inches over on an adjoining lot on the west, owned by another party; that a portion of the east side and southeast corner of it was cut off by the right of way of the Missouri Pacific railway, and the north side or end of the hotel was out in the public street. The court made the following findings of fact:
“First: The court finds that on and prior to the 16th day of August, 1912, the plaintiff was the owner of Lot Eleven (11) in Block Two (2), in Enright’s addition to the City of Dexter, Cowley county, Kansas, and on said date sold and conveyed said property to the defendant, Adelia M. Patterson, by deed of general warranty, and that on the same day and as a part of the purchase price of the premises, the defendants executed and delivered the notes and mortgage sued on in this action, and that there remains' due and unpaid on said notes the sum of $400.00, with interest thereon from August 16th, 1912, at the rate of 8 per cent per annum.
“Second.: That said Lot Eleven (11) was and is of the dimensions of fifty by one hundred fifty feet, and fronts what is known as Valley Street in the city of Dexter for the frontage of fifty feet, and that said lot was and still is occupied by a frame hotel building of which the main part is two stories high. There was and is a one-story Jeanto addition on the west of the main building, which addition was used as the kitchen of the hotel. The hotel building then did and still does stand practically flush on the north end of the lot with the street line as the same was then and is now used and marked by side walks, fences and other improvements on this and adjoining property, and that then and now a cement side walk extended east and west along the north line of this lot and immediately along the north side of the hotel building, and that about one foot or less west of the north-west corner of the leanto addition such cement walk was joined by an older brick walk extending along the north side of the adjoining Lot Twelve. (12) in the same line with the cement walk and extending towards the center of town, and that at that time there was a partial row of trees and, perhaps, some fencing marking the apparent lot line between Lots 11 and 12 corresponding practically with the said junction of the two side walks, and running on a north and south line some inches or not to exceed one foot west of the lóárito addition to the hotel.
. “Third: That the defendants are wife and husband, and at the time of their purchase of the property; they were neither of them familiar with the boundaries or lines of said Lot 11, except as the same were indicated by the objects aforesaid, and in showing the property to the defendant, J. O. Patterson, who was acting for his wife, the plaintiff in formed Mm that the west line was at the said line of trees, and the defendants believed such statement and relied thereon in purchasing the property.
“Fourth: Enright’s Addition to the city of Dexter was laid out and platted more than 25 years ago, and there are none of the original stakes and monuments left indicating any of the corners or lines of the addition, or blocks, lots, streets, or alleys, therein, which can now be found. The evidence which was introduced tending to show the exact location of the boundary lines of Lot 11, as originally platted, is unsatisfactory to the court for the reason that the survey of the witness Merry was not sufficiently thorough to carry conviction of its accuracy, and the survey of the witness Bradley depends entirely upon the accuracy of the true point of inter-section of a quarter-section line with the easterly line of an earlier addition, which runs in a slanting northeasterly direction and not at right-angles with the quarter-section line. The easterly line of the earlier addition seems fairly well established, but the location of the quarter-section line is based entirely upon more or less ancient lines of fences and hedges and not on any established corners, unless it be one stone to the east, and the location of the intersection was determined by sighting from this stone by an intermediate fence or hedge line only and as the accuracy of the Bradley survey is therefore dependent on corners located merely by old improvements, it fails to be any more convincing as to the true location of the east line of Lot 11 than the old boundary marks erected by the owners at a time when there is reason to believe the original marks may have been in existence. • The facts that the evidence shows that measurements on the recorded plat of the Enright Addition were impossible and necessarily incorrect, adds to the dissatisfaction of the court with the defendants’ evidence of the true location of the lot nine.
“Fifth: The plaintiff had owned Lot 11 for more than 25 years during all of which time he honestly believed that the line which he pointed out to the defendants as the west line of Lot 11 was correct. This line had been recognized by both parties, the plaintiff and the then owner of said Lot 12, as the true boundary line, and the owner of Lot 12, whose heirs still own the property, adopted the boundary line more than 25 years ago by erecting a fence thereon, and the brick side walk up to the line, and plaintiff set out trees on said line with the knowledge and acquiescence of the owner of Lot 12, and the boundary thus located by the owners was ever since acquiesed in and recognized as the true boundary up to August 16th, 1912, except that one of the heirs of the original owner of Lot 12 some 8 or 10 years ago expressed to the plaintiff his doubt of the correct location, and it was then agreed that a surveyor should be called, but that was never done. One or two persons who did not pretend to the plaintiff to have any actual knowledge on the subject, had expressed their opinion to the plaintiff that his building was too far west and extended over on Lot 12, but to these parties the plaintiff always contended that he knew the location of the line and that it was at the place where he pointed it out to the defendants, and at the time the plaintiff sold the property to the defendants and pointed out to them the west line of the lot he was acting in good faith upon the honest belief that he knew the location of the boundary line, and at that time he had no valid reason to suspect he was mistaken in that regard.
“Sixth: Defendants have never been disturbed in their possession of any of the land which was pointed out to them and which they have occupied, as Lot 11, and no demand for possession has ever been made of them nor any legal proceedings brought against them.”
As conclusions of law, the court held from these facts that the plaintiif was not liable to defendants upon the cross-petition and gave plaintiif judgment for the foreclosure of the mortgage.
The first claim is that the court erred in.finding that the separate surveys made by surveyors Merry and Bradley were inaccurate and unreliable. The surveyors were witnesses and were closely questioned by the court in explanation of their surveys. It would have been impossible for the court to have found that both surveys were accurate and reliable, because they did not agree. One showed that the hotel building was over on lot twelve about six and one-half feet, and that the corner of lot eleven was on the Missouri Pacific right of way. The other surveyor testified and his survey showed that the building was over on lot twelve three feet seven inches and that the north end projected into the street seven feet five inches; and this witness said nothing at all about the Missouri Pacific right of way. Witness Merry, when asked where he began running the line with the compass and chain, said that he used a chain but no compass; that he started at the “stock pen” and not where the survey started when Enright’s addition was laid out. This same witness was asked how near the hotel building came to the north line of lot eleven, and answered that it came out flush with the property line.
Surveyor Bradley testified that Enright’s addition is not “based on any government corner or line,” and that the streets of the old town of Dexter run north thirty-three degrees east of north, and that the opposite streets run at right angles with that; that the country around there was surveyed on a variation which ran from eleven and one-half to twelve degrees east' of north, and that he had no means of knowing whether the surveyor who laid out the original town site, or Enright’s ad dition, followed the government’s variation. A'careful examination of the testimony of these witnesses convinces us that the court was justified in rejecting both surveys. Besides, several other surveys were in evidence.
Meade, the owner of lot twelve lying west of the lot in controversy, built a fence between the two lots, and this line was recognized for a period of twenty-five years or more by the owners of the two lots as the line of their property. Plaintiff testified that sixteen or seventeen years before the time of the trial he had set out some trees along the fence, that all of these died except one, but that he subsequently set out another row along the fence. After Meade’s death his widow built a brick sidewalk along the north line of lot twelve, beginning at the end of the fence. Bullington erected his hotel, the west side of the building being about eighteen inches east of the fence. He afterwards built a cement sidewalk connecting up with Meade’s brick sidewalk. The Missouri Pacific Railway Company built the north end of their depot platform flush with the street and in line with the brick and cement sidewalks above mentioned, and other property owners on the same side of the street improved their property substantially along the same line. Surveyor Bradley testified that, the sidewalks run practically in line with the north side of the hotel and fairly true up to the depot platform. It has been said:
“A boundary line long recognized and acquiesced in, is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared.” (Tarpenning v. Cannon, 28 Kan. 665, syl. ¶ 8.)
The defendants argue that no title could haye been obtained by' adverse possession as against the owner of lot twelve, because plaintiff believed that the lines were where he represented to the defendants, and, therefore, it is clear that he never intended to claim any part of lot twelve. Cases are cited which recognize the doctrine that the character of the possession depends upon the intent with which it is taken and held. It is true, the court finds that the plaintiff believed the line he pointed out to the defendants as' the west line of lot eleven was correct, but this is merely a finding that the plaintiff acted in good faith. The owners of lot twelve are not parties to this litigation, and we do not understand the court to have decided that plaintiff, when he sold the property to the defendants, had acquired a title to part of lot twelve by prescription. For this reason many of the propositions of lav/ urged by the defendants need not be considered, because they have no application here.'
It is sufficient answer to defendants’ contention that plaintiff could obtain no title to a portion of a public street by adverse possession, to say that there is no finding of the court that any part of the building was in the street. The finding is that the building “stands flush with the street.” From all that appears in the evidence, there is no probability that the public will ever interfere, with the defendants’ right to maintain the building where it is, so far as the street is concerned. The burden was on the defendants to establish not only that the representations were relied upon, but that they were false. The evidence failed to satisfy the court that the defendants were entitled to the relief prayed for. There was certainly’ much conflict in the evidence, and we feel bound by the decision of the trial court on the facts, and are convinced that the judgment should be, and it is, affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
William F. Osborn died testate January 21, 1914. Six days later a record was made in the probate court reciting the election of his widow, Katie A. Osborn, to take under the will. On March 9, 1914, she filed an application to have such election set aside because made under a misapprehension of her rights under the will, brought about through her not having been sufficiently advised in that regard. The probate court denied the application, and she appealed to the district court, which found that her contentions were well founded, and that no rights had intervened, and set aside the election. The executor appeals.
1. A reversal is asked principally upon the ground that the probate court had no jurisdiction to set aside the election, and that the district court on appeal had no greater power. In support of this view it is argued that the duty of the probate court in connection with such an election is perfunctory; that its function is completed when it has explained to the widow her rights under the will and under the law; that it acts ministerially, placing upon the record whatever the widow directs, thereby exhausting its jurisdiction; that relief from an ill-advised election can be granted only by a court of-equity. This view is perhaps unavoidable, if the probate court is conceived as a mere instrument to make an entry on the record at the direction of the person interested. But we think this is not an adequate conception of the part in the matter to be performed by the probate court. The election is required (save in exceptional cases) to, be made personally in court, after an explanation of the legal effect of what is to be done. (Gen. Stat. 1909, § 9819.) The reception of the election has been held to be a judicial act which can not be performed by a deputy clerk. (Mellinger v. Mellinger, 73 Ohio St. 221, 227, 228.) We regard the entry of the election on the minutes as essentially the record of a decision of the court; it involves- an adjudication — an investigation and a finding of the fact that such a choice has actually been made by the widow, implying that she has not only expressed herself to that effect, but has done so understanding^, after the- explanations required by the statute have been made. If she should express herself as electing to take under the will and the probate judge knew that such expression was due to her misapprehension of its provisions, through not having received the explanation required by the statute, he would of course not accept or record such expression as an election. If the situation were such that a full compliance with the law. on his part would have advised him that she was under such a misapprehension, but from a neglect to follow the provisions of the statute he was not informed of it, and therefore made a record showing an election at variance with her real desire, he would through inadvertence have made a finding contrary to the fact — an erroneous decision or judgment that she had elected to take under the will. A probate court is usually held to have the same power to correct its own errors as a court of general jurisdiction. (11 Cyc. 799; 1 Black on Judgments, 2d ed., § 297; Note, 90 Am. Dec. 136.) Such is the rule in this state by statute, and the probate court may set aside one of its own orders for fraud or irregularity (Civ. Code, §§ 596, 605), the provision relating to the latter ground covering the results of misapprehension or inadvertence on the part of the judge (Bank v. Ross, Ex’x, 90 Kan. 423, 133 Pac. 538).
In Ohio it has been held that the probate court has no power to set aside an. election, which it has received and recorded. (Davis et al. v. Davis, 11 Ohio St. 386.) But the decision cited was explicitly put upon a narrow view of the power of that court, the opinion saying: “Its jurisdiction in probate and testamentary matters even, is special and not general.” (p. 391.) In this state, in accordance with the usual rule, the probate court is regarded as being a court of general jurisdiction with respect to matters committed 'to it. {Parnell v. Thompson, 81 Kan. 119, 132, 105 Pac. 502.) Our statute enumerating the powers of the probate court is quite similar to that referred to and quoted from in the Davis case, but this clause, not found in the Ohio act, was added to that of Kansas by amendment in 1868: “to have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons.” (Gen. Stat. 1909, § 2473.) In Jones v. Savings Association Co., 10 Ohio Cir. Dec. 41, it was said of the facts in the Davis case: “Under such conditions, one might well suppose, at first blush, that the probate court had sufficiently ac-, -quired jurisdiction of the subject-matter to adjudicate upon the question of an alleged mistake as to the provisions of the will, upon part of the widow, and the effect thereof upon her rights, but the Supreme Court properly held otherwise.” (p. 42.) In Railway v. Devine, 15 Ohio N. P. R., n. s., 56, after citing the Davis case and others of a similar tendency, the court quoted a passage from Woerner on The American Law of Administration to the effect that the conferring of jurisdiction upon a particular subject-matter carries with it the right to decide collateral issues, and added: “Since-the promulgation of the above, the tendency has been to construe even more liberally and reasonably and substantially widen the jurisdiction of the probate court to meet the exigencies arising in the administration of the duties of said court.” (p. 61.) It then quoted from a later decision of -the Ohio supreme court, and
■ said: “The foregoing unmistakably indicates a tendency to widen the jurisdiction of the probate court.” (p. 61.)
In Adams v. Adams, 39 Ala. 274, 603, it was held that a widow’s mistake in making her election could only be corrected in a court of general equitable jurisdiction, but the decision áppears to have been affected by the fact that she had retained a benefit received under the will, and that therefore the probate court was “not clothed with the requisite power and machinery to do equity between the parties.” (p. 605.) In several cases courts not having general equitable jurisdiction have been held to be authorized to give relief against an election unadvisedly made. (Evan’s Appeal from Probate, 51 Conn. 435; In re McFarlin, (Del. 1910) 75 Atl. 281. See, also, State ex rel. Minn. L. & T. Co. v. Probate Court, 129 Minn. 442.) While the probate court has no general equitable jurisdiction, in adjudicating matters within its cognizance it may enforce the principles of equity. (Holden v. Spier, 65 Kan. 412, 70 Pac. 348; 27 A. & E. Encycl. of L. 553; 11 Cyc. 795.) The fact that relief from elections influenced by fraud or mistake has usually been sought in the district court is not persuasive of a want of jurisdiction in the probate court. The broader power of a court of equity make that a proper and sometimes a preferable forum for the determination of such a controversy, especially where it is or may be complicated with other matters, such as the restoration of a status that may have been changed in consequence of the election made. We Conclude that the probate court had jurisdiction to set aside the election.
2. We also conclude, for reasons which will be briefly stated, that there was evidence to support the findings, conclusions and judgment of the district court. The findings that the widow was not informed as to her rights under the will and under the law, and that the probate court did not explain to her the effect of the will, were supported by evidence (some of which was contradicted) tending to show these facts: The will left to the widow during her life, or her widowhood, the homestead and another piece of real estate, the title to .go to the testator’s three sons upon her death or remarriage. No other specific provision was made for her. Various personal bequests were followed by a clause to the effect that all prop erty not otherwise disposed of should be “divided according to the laws of the state.” The testator had written an addition to the will (which, however, was ineffective for want of witnesses) undertaking to give his wife a half interest in the proceeds of the sale of a tract of land, subject to some minor legacies, the other half to go to the testator’s sons. This was read to her at the same time as the will, by a banker in whose custody both documents had been left, and she supposed that it was a part of the will — did not know it from the will — did not understand the nature of a codicil. The probate judge knew nothing of the additional writing, which was not offered for probate. He did not read the will to the widow. He asked her if he should do so, and she said that it had already been read to her. He did not tell her what her rights would be under the will or under the law, beyond answering some questions she asked as to the sale of the home, and there was some conflict as to just what these answers were. We regard this evidence as justifying also the conclusion of the district court that the widow did not, with a full knowledge of her rights, elect to take under the will, and that if her rights had been fully explained to her she would have discovered the mistake under which she was laboring with respect to the provisions of the so-called codicil being a part of the will.
The fact found by the court that the sons of the testator, knowing that the widow understood the codicil to be a part of the will, permitted her to make her election under that misapprehension, without informing the probate judge of its ex-existence, was inferable from evidence of a discussion between them, after it had been read as though it were a part of the will, in which there was talk about the sale of the land to which it related, and the division of the proceeds, with an offer on the part of the sons to add to the share she was to receive, and from the fact that she was permitted to remain in the belief that the codicil was a part of the will, while the probate judge was not informed of its existence.
The trial court stated as a conclusion from the facts indicated that the sons practiced a fraud upon the widow in this respect, or if their course was due to a mistake on their part, that she should still have relief. The executor maintains that no fraud could have resulted because the residuary clause of the will, which covered the land described in the codicil, called for its division according to law, which would have given the widow an unencumbered half, while the codicil gave her but a half interest in the proceeds, subject to the payment of legacies. Counsel for the widow, on the other hand, express the opinion that the residuary clause in the will was a mere declaration of intestacy as to the property not specifically disposed of, and that if she elected to take under the will she could derive no benefit therefrom, citing Compton v. Akers, 96 Kan. 229, 150 Pac. 219. We think in directing the division of the residuary estate according to law the testator merely adopted a convenient means of indicating how the property was to be divided under the will. (Huber v. Carew, 26 Ohio Cir. 389.) The rule that one who would receive the same interest either as devisee or heir is deemed to take in the latter capacity can hardly apply, for that is based upon the presumption of a greater advantage to the beneficiary. (2 Underhill on The Law of Wills, § 609.) But apart from the question whether the codicil was more favorable to the widow than the will, the fact that it was presented to her and withheld from the probate judge tended to some confusion, and the incident serves to strengthen the view that her election was not made with a full knowledge of the situation.
Criticism is made of a finding that an election to take under the law would have been .of substantial benefit to the widow, and that she would not have elected to take under the will if she had been fully advised. The finding does not mean that the provisions of the law were necessarily to be preferred to those of the will, but that the former offered advantages not given by the latter, upon which such a preference might reasonably be based. The course of the litigation affords a sufficient indication of the desire of the widow to take under the law. The finding that she did not know;, until .after the election was entered on the record, of the facts regarding some real estate, the title to which was in one of the sons, was in accordance with the evidence, and does not imply that she had had no opportunity to inspect the record.
A finding that none of the beneficiaries under the will had changed his situation in view of the election is challenged on the ground that as the sons had agreed, in consideration of the widow’s electing to take under the will, to make some repairs on a building of which it gave her the use (as well as to pay her $2300 from the proceeds of the sale of the land described in the codicil), it is fair to presume that they had made the repairs mentioned, no evidence having been introduced to the contrary. Wherever the burden of proof may have technically rested in this regard, the appellant, having made no effort to show the facts, is not entitled to a reversal on the naked presumption. (Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259.) The agreement which was signed at the time the election wa's recorded, that the widow should be paid a specific amount out of the.proceeds of the tract referred to in the codicil, seems to indicate that the provisions of that instrument relating to its sale were in the minds of the parties, and that the widow was not fully informed as to her rights either under the law or under the will.
The application to have the election set aside was made without any great delay; the trial court had a better opportunity than can be afforded on review of determining the state of the widow’s mind at the time she indicated a desire to take under the will, the information she had received, and her understanding of the alternatives between which she was required to elect; the conclusion must be upheld that no actual election, with such opportunity for the exercise of an intelligent choice as the statute contemplates, was ever made.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The German American State Bank sued W. T. Watson upon two notes, one for $1748.15, signed by him and payable to the bank, the other for $280, signed by I. M. Blitz, payable to Watson, and indorsed by him to the bank. The execution and indorsement. were admitted, but the defendant pleaded facts which he relied upon as relieving him from liability. A demurrer to his evidence was sustained, and he appeals.
Most of the evidénce of the defendant was directed to the proposition that he was not liable upon the larger note because of the circumstances under which the note of which it was a renewal was executed, which were thus stated in the answer:
“The said Blitz applied to the said The German American State Bank for a loan of seventeen hundred thirty-eight and 55-100 ($1738.55) dollars, and that said bank, through its president, Metzger, then agreed to make said loan.
“That at said time the said bank, through its president, Metzger, stated to this defendant that said Blitz had arranged with them for the said loan, but that he had already borrowed from the bank as much ’as it could loan to any one individual and that it desired to make the loan in the name of this defendant; and at the' same time stated that said Blitz was solvent and in first class financial condition, and that the loan was a good tme and that if defendant would execute a note in his own name for the said loan it would be considered as an accommodation to the'bank and not be regarded as 'any personal obligation of his, and that said bank would also take from the said Blitz a note and collateral security therefor, such as diamonds and jewelry, so that the note would be amply secured and this defendant would be incurring no obligation by the making of said note.
“That relying on-said statements and for the purpose of accommodating said bank, without any consideration whatever to this defendant, he, on December 27, 1911, executed and delivered to said bank a note for the sum of $1736.55, the amount said I. M. Blitz was at said time borrowing from said bank; and that at the same time said I. M. Blitz executed and delivered his own note for that amount, made payable to this defendant and endorsed to said bank, or made directly to said bank and delivered to it, and delivered to said bank ^certain diamonds and other jewelry, the exact kinds and descriptions of which defendant does not know and can not give, but which the said Metzger stated to this defendant were of sufficient value to more than pay the said sum so borrowed, and which plaintiff alleges were of such value.”
1. This portion of the answer stated no defense, and so far as the evidence of the defendant tended to support the allegations quoted the demurrer was properly sustained for several reasons. The fact that the maker received no benefit from the transaction did not constitute a defense. The loan made by the bank to Blitz was a sufficient consideration. (8 C. J. 214; 4 A. & E. Encycl. of L. 188.) While the answer alleges that the defendant signed the note “for the purpose of accommodating said bank,” the facts set out show that in legal contemplation Blitz was the person accommodated.
The accommodated party is he to whom the credit of the accommodation party is loaned, and is not necessarily the payee, since the inquiry always is as to whom did the maker of the' paper loan his credit as a matter of fact. And the fact that one derives some incidental benefit from the paper will not make it accommodation paper as to him.” (8 C. J. 254.)
• In illustrative cases cited to the foregoing text this language was used:
“ ‘The accommodated party, in a legal sense, is the person to whom the credit of the accommodating party is loaned, not a third person who may receive an advantage by the loan of the credit.’
“ ‘To have the money raised on a new note made by defendant was in a.certain popular sense an accommodation, that is, a convenience, to the plaintiff, just as it is a convenience to a creditor who wants- his money but can not get it from his debtor in cash, to get payment by a note on which he can raise the money temporarily, though at the risk of an indorsement which he may ultimately have to pay. But this is very far from what the law means by accommodation paper.’ ” (Note '79.)
The note was not executed to enable the bank to obtain money from some one else, but to enable' Blitz to obtain more money from the bank. The defendant’s credit was not lent to the bank, but to Blitz, the effect of the transaction being to enable him to borrow upon the credit of the defendant after the credit which the bank under the law could extend to him had been exhausted. The circumstance that the bank was desirous of doing the business, and that the defendant was moved by friendship for the bank rather than for Blitz — by a desire to help the lender to earn interest rather than by a wish to aid the borrower in obtaining a loan — does not effect the legal relation of the parties. The - situation is entirely different from that presented in Means v. Bank, 97 Kan. 748, 156 Pac. 701, where it was held that a bank was bound to protect the maker of a note executed to it, for its accommodation, the proceeds of which it received and retained. Here the money was lent to Blitz upon the strength of the nóte signed by the defendant, without which the loan could not have been .made. The circumstance that the president of the bank told him that the loan was otherwise secured, and that he would not have to pay it, does not alter the fact that it furnished a consideration for the note.
2. By the weight of authority an executive officer of a bank has no implied authority to bind it by a promise that one who signs a note shall not be required to pay it. The eases on the subject are collected in a note in 28 L. R. A., n. s., 501, where it is said:
“It is a general rule recognized by the great majority of the cases, that the president or cashier or any other similar executive officer of a bank has no authority, simply by virtue of his office, to bind his bank by an agreement made with the maker or indorsers of commercial paper payable to the bank, that their liability on such paper will not be enforced. The rule applies whether the agreement is made before the paper has been signed, or after.”
Where an officer, in taking a note in behalf of the bank, agrees that it shall not be enforced, the question of the extent of his agency may perhaps be eliminated by the rule that a principal can not accept the fruits of a contract made for it and at the same time reject any burdens assumed on the ground that they were unauthorized. (Lumber Co. v. Silo Co., 92 Kan. 368, 140 Pac. 867; cases cited in Means v. Bank, supra.) However this may be, the oral agreement that the defendant was not to be held to the payment of the note was not enforceable because it was in direct conflict with the terms of the written instrument, which could not be contradicted in this manner. (Stevens v. Inch, 98 Kan. 306, 158 Pac. 43; 17 Cyc. 589; 4 Wigmore on Evidence, § 2444, ¶ 3.)
3. Moreover the enforcement of an agreement betweethe bank and the defendant, that Blitz alone should be liable for the payment of, the loan, must be refused upon another ground. To allow the relations of the parties to' be controlled by such an agreement would be to countenance and give effect to a secret arrangement entered into for the purpose of evading the law which limits the amount which a bank may lend to one person. (Gen. Stat. 1915, § 530.) In Means v. Bank, 97 Kan. 748, 156 Pac. 701, the facts were held not to render the principle applicable, but this was said concerning it:
“And this brings us to the second contention of the defendants— that the entire transaction is void for the reason that the evidence conclusively shows that the transaction was entered into for the purpose of deceiving the bank commissioner and making it appear to the creditors and stockholders that the bank held these notes as valid notes. Authorities are cited holding that where an officer of a bank enters into a transaction with an individual with such a purpose, and executes legal instruments of an obligatory character for that purpose, the maker of the obligation can not thereafter be heard to say that they are invalid. Thus, in State Bank of Moore v. Forsyth, 41 Mont. 249, 108 Pac. 914, it was held that under such circumstances ‘it is sound reason, as well as pure justice, to leave him bound who has bound himself.’ (p. 267.) The soundness of the general rule contended for by the defendants can not be doubted.” (p. 751.)
The language attributed to the Montana court was quoted by it from Pauly v. O’Brien, 69 Fed. 460, where the maker of a note sought to escape liability by showing that it was given in renewal of one he had executed to a bank, to take the place of a matured note of one Naylor, at the request of. the president, who told him that the Naylor note was secured by sufficient jewelry to pay it, but that he desired to get it “out of the past-due notes,” and would carry it as collateral to the note of 'the defendant. The court said:
“It thus appears that the defendant executed his first note, subsequently renewing it from time to time, and ultimately by the note in suit, for the purpose of having it take the place of the Naylor note, which, together with the collaterals, ‘were to be collateral to the note’ given by him. If, however, this was not really the case, but that, in truth, the transaction was a mere trick to make it appear to the government and to the creditors and stockholders of the bank that it had a valuable note when in fact it did not have one, the result must be the same, for, when parties employ legal instruments of an obligatory character for fraudulent and deceitful purposes, it is sound reason, as well as pure justice, to leave him bound who has bound himself. It will never do for the courts to hold that the officers of a bank, by the connivance of a third party, can give to it the semblance of solidity and security, and, when its insolvency is disclosed, that the third party can escape the consequences of his fraudulent act.” (p. 461.)
In New England Fire Insurance Co. v. Haynes, 71 Vt. 306, an action on a note given to an insurance company to replace another, the court said:
“It is not necessary to decide whether it was error to admit parol evidence to show what occurred between Bedington and the defendant, when the latter gave the note to the plaintiff, for the facts found on such evidence can not avail the defendant by way of defense to this action. Such facts show that he gave the note for the purpose of enabling the plaintiff to deceive the Insurance Commissioners of this state in respect to its then financial condition, and he is estopped from taking advantage of his own fraud in this behalf.” (p. 310.)
In Westwater v. Lyons, 193 Fed. 817, a note for which the makers received no benefit was executed to a national bank, which used it as a substitute for a note representing a debt on which one McKinnie was liable, to deceive the comptroller of the currency. The circuit court of appeals held that it was a question of fact whether the note was given for the accommodation of McKinnie or of the bank, but said:
“Whether the note was given for the accommodation of McKinnie or for the accommodation of the bank, would not matter, if, at the time it was-given, Westwater was cognizant of the situation between the bank and the comptroller of the currency. . . . As we have already remarked, however, the innocence of the defendant in this respect underlies his whole defense and is a necessary postulate to qvery proposition involving the question of his liability.” (pp. 820, 823.)
(See, also, Murphy v. Gumaer, 18 Colo. App. 183; Third Nat’l Bank v. Reichert, 101 Mo. App. 242; Sickles v. Herold, 32 N. Y. Supp. 1083; Tasker’s Estate. Tasker’s Appeal, 182 Pa. St. 122; State Bank of Pittsburg v. Kirk, Appellant, 216 Pa. St. 452.)
It has been held that a defense to a note is established by a showing that it was given to a bank, which parted with nothing on the strength of it, merely to enable an officer to deceive the examiner. (Chicago Title & Trust Co. v. Brady, 165 Mo. 197. See, also, Rankin v. City National Bank, 208 U. S. 541.) The same rule seems to have been applied in an unreported case (Yates Center National Bank v. Schaede) decided by the United States district court for the district of Kansas, in March, 1915, which was affirmed without opinion by the circuit court of appeals in September, 1916. While no formal opinion was delivered by the trial court, a memorandum was made which shows the scope of the decision, but does not affirmatively disclose whether the maker of the note was aware of the use that was to be made of it. It reads:
“This is an action by plaintiff, an insolvent national banking association, nOw in the hands of a receiver, to recover from defendant the contents of a promissory note for the sum of $1500, made by the defendant to the bank. The note in controversy is one of a series of renewal notes made by defendant at the solicitation of the president and general managing officer of the bank. It is the first of a series of like transactions engaged in by the president of the bank to conceal his defalcations in the bank, and the true financial condition of the bank, with paper apparently good, but in fact obtained without consideration, for the purpose of deceiving the comptroller of the currency or those whose duty it was to examine into the affairs of the bank, by giving it a false appearance of solvency.
“The defense interposed is want of consideration.
“Not only is this defense made out, but it further appears the whole transaction from the making of the original note to the renewal in controversy was without consideration, and in pursuance of the illegal and criminal design of the president of the bank. Such state of facts public policy and good morals alike condemn, and courts refuse to en force. This case differs in degree only from that of Plaintiff v. Lauber, and Gillis, receiver, v. Fry, this day determined.
“It follows, judgment must go for the defendant.”
The present case is distinguishable from those just referred to on the ground, already stated, that here there, was a consideration for the note, and the bank parted with its money on the strength of it. Notwithstanding any expressions of a contrary tendency in the cases cited, we are satisfied that at least where there is no want of a valid consideration, and the note was not in legal contemplation given for the accommodation of the bank, the maker can not defeat its payment by showing that with his knowledge it was intended to mislead the examiner as to the bank’s condition or securities. The rule that an agreement in contravention of a statute, or of public policy, will not be enforced at the instance of either party, does not apply. The statute limiting the amount a bank may lend to one person operates for the protection of the stockholders and the public, as well as the depositors. It is the agreement that the defendant was not to be liable on the note, rather than the making of the note itself,' that is objectionable as defeating the purposes of the banking act. The defendant, not thé plaintiff, invokes it. To give effect to an understanding that a note executed to show compliance with the law should not be collected, would be to countenance, rather than repudiate, the arrangement for evading the statute, and would tend to defeat its object and tosinjure the persons for whose benefit it was enacted. In that situation the rule referred to has no application.
The evidence tended to show a slightly different state of facts from that alleged in the portion of the answer quoted. The pleading indicates that the original note, of which that sued on is a renewal, was given at the inception of the relations between the bank, the defendant and Blitz. The evidence is to the effect that at the instance of the president of the bank the defendant made or procured to be made various loans to Blitz, with the understanding that the bank was to take them up at any time; that in pursuance of this agreement the defendant asked that they be taken up; that this was done, the bank paying off the existing notes, and taking in exchange one signed by the defendant as well as one signed by Blitz, for the reason' that it was already carrying all the Blitz paper it could. The evidence varied from the answer only in details. What has already been said as(to the insufficiency of the defense pleaded applies as well to that undertaken to be shown by the evidence. The evidence as well as the pleading showed that there was a valid consideration for the defendant’s note, that in legal contemplation Blitz was the person for whose accommodation it was made, and that its purpose was to enable the bank to make a loan which otherwise would be forbidden.
4. The answer set out that the bank had extended the time of payment of the Blitz indebtedness without the defendant’s consent, and also that it had voluntarily surrendered to Blitz certain property which it held as collateral security for the loan. Neither allegation constituted a defense, so that it is immaterial whether the evidence tended to support them. Under the uniform negotiable instruments act the defendant was primarily liable, since by the terms of the note he had signed he was absolutely required to pay it. (Gen. Stat. 1915, § 6523.) His position was not more favorable than if he had signed a note as surety for Blitz, and in that case he would not have been released by the granting of an extension of time to his principal. (Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429.) The reasoning by which that conclusion is supported is not completely applicable where security has been surrendered to the principal, but the same rule has been applied to that situation. (8 C. J. 620.) In the statutory enumeration of the methods by which a note may be discharged, which obviously is intended to exclude any not mentioned, no reference is made to the surrender of security. (Gen. Stat. 1915, §§ 6647-6653.)
The pleading and evidence, with respect to the note for $280, presents no defense not rendered unavailable by what has already been said.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This is an appeal from the judgment of the district court sustaining a survey. The question is whether or not the judgment is sustained by any evidence.
Schopper owns land originally bounded on the north by the Kansas river. In the river opposite his land was an island. The river ceased to flow between the island and Schopper’s land. Grimes caused a portion of the island to be surveyed and to be patented to him by the state. This survey included a portion of the abandoned channel of the river. Schopper claimed the remainder of the abandoned channel as an accretion to his land. Differences arose between the two men as to the location of the boundary, and Schopper caused the survey in controversy to be made.
The county surveyor testified that in making the former survey, the surveyor then in office started from a certain quarter section corner, but that the former surveyor regarded a certain rock as the corner stone, while the true corner stone was some distance away. Using the true monument, the county surveyor undertook to reproduce the original survey, and succeeded in doing so. There was evidence that when the survey was made the stakes of the original survey, marking the boundary in dispute, were in place. The county surveyor testified that the stakes had all been removed, that he wanted information, and that he asked Grimes all about it, but that Grimes disclaimed any knowledge of the true location of the boundary. There was evidence that the survey deprived Grimes of land included in the former survey. The county surveyor testified that such was not the case. The district court chose to rely on the testimony of the county surveyor.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This court held in this case that the plaintiff corporation should pay taxes upon the actual value of its stock (that is, of its shares in the aggregate), although that exceeded the assessed value of a building which it owned, and the renting of which constituted its only business. In a petition for a rehearing, it is again argued that the stock of such a company can not be worth more than the physical property owned; that “the right to exist as a corporation is not a taxable thing.” The court reached a different conclusion, for reasons which it undertook to state in the original opinion. To what was there said may be added this expression of the supreme court of Iowa, in denying the contention of an investment company that it was entitled to deduct from the assessed value of its stock the amount of capital it had invested in real estate, instead of the assessed value thereof:
“There is no double taxation here. Nor is there any taxation by reason of loss on real estate. If there was a loss of $8000 on real estate, it did not in any manner affect the value of the stock; this for the reason, we suppose, that the real estate was valued too low, had a potential value not estimated by the assessor, or the corporation franchise in itself added value to the shares of its stock.” (Valley Invst. Co. v. Board of Review, 152 Iowa, 84, 89.)
1. In the original opinion this court said: “It seems clear that the judgment was not grounded upon the theory of bad faith on the part of the taxing officers.” (Building Co. v. Saline County, 98 Kan. 732, 736.) The plaintiff contends that this conclusion violates the rule that we are bound to .presume any permissible finding that will support a judgment. Upon the whole record we think it quite clear that the trial court did not, in fact, find that the public officers acted in bad faith,' but if such a finding were shown it would have to be set aside as not sustained by the evidence. In the original opinion it was said that the. assessor testified that the treasurer of the corporation had told him that “if any stock were sold it would bring par.” This was an inaccurate interpretation of the record. The exact testimony given by the assessor was as follows:
“I asked him if any of these shares were to be sold, if he believed they would have to be sold for anything less than one hundred cents on the dollar. , He thought that — I asked him what the earnings of the company was and dividends the past year on a basis of $60,000 capital stock. He said six per cent, so I based my judgment that the capital stock was worth one hundred cents on the dollar, or par, earning six per cent, and that if they really wanted to sell any of the stock it would bring one hundred cents on the dollar.”
■ The assessor testified that he had three conversations with the treasurer, at each of which they talked about the value of the stock. The treasurer testified that he had no recollection of any conversation with the assessor except at the time the return was made, and that at that time he did not tell him the stock was worth par. In the original opinion it was said that the treasurer testified that the property, which had cost $60,000, was no less valuable than when it had been acquired, except for natural depreciation and wear. In the petition for a rehearing this statement is challenged, and the testimony in question is treated as referring to the value of the property at the time of the trial, as compared with its value on March 1, 1914, the time of its assessment. On this point counsel says:
“The case was tried in June, 1915. The treasurer was asked if the property was any less valuable then (June, 1915), than on the 1st day of March, 1914. There is no room for controversy about this testimony, and the contention of the attorney-general and the assumption of the justice delivering the opinion is erroneous. There is not a word of testimony as to the value of the property in March, 1914, as compared with its value when purchased. Not one word.”
It seems to the court that the record, considered as a whole, makes it clear that the comparison was not between values at the time of the assessment and at the time of the trial, but between them at the time the property was acquired and the time it was assessed. The transcript reads:
“Q. I believe you said there was sixty thousand dollars paid up capital stock at the time of its organization? A. Yes, sir.
“Q. And that there was practically that amount placed into the building and the lots? A. Yes, sir.
“Q. In your opinion, Mr. Merrill, is that property any less valuable now than it was at that time?
“Mr. Millikin [attorney for the corporation] : We object to that as not cross-examination.
“The-Court: At this 1st day of June [the day of the trial] ?
“Mr. Hamner [County Attorney] : No, on the 31st day of March, 1914, on the 1st of March, 1914.
“Question read as follows: ‘In your opinion, Mr. Merrill, is that property any less valuable now than it was at that time, on the 1st day of March, 1914?’t
“The Court : He may answer that.
“A. Except the natural depreciation and wear.”
It is entirely clear that the county attorney explained his question by substituting “on the first day of March, 1914” for “now,” and it seems reasonable to suppose that the witness so understood him, and answered accordingly, but the matter is of little practical moment. The details of the evidence referred to have been gone into at this length merely for the sake of accuracy of statement. The company’s claim that as a matter of law it was protected from further taxation invólves a question of statutory construction that is not free from doubt. But its suggestion (it can hardly be called a contention) that its shares were not in fact worth par is not supported by any substantial evidence. None of its witnesses undertook even to give an unqualified opinion that its shares were not in fact worth their face. The officers seem to us to have been unwilling to swear to any lower valuation, but whether we are right in this is immaterial, for they did not do so and therefore have no standing to ask an injunction based on that ground. The treasurer was asked: “Is there now, or has there been at any time within the last year and a half, any fixed value, market value, for that stock?” He answered: “I don’t know of any sales since the first of January, or practically the first of January.” He was asked: “Do you know what the value of the capital stock of that corporation was on the 1st day of March, 1914?” He answered: “No, I would have to arrive at that by what it could be sold for; that would depend on conditions greatly.” He testified that he knew of stock having been sold for less than par, but omitted to indicate when any such sale had been made. The secretary testified that the stock had no value in excess of its tangible property, but this was in the nature of a conclusion of law. He was asked on cross-examination his opinion as to the actual value of the stock on March 1, 1914. He answered: “That would be an uncertain question. I could n’t give you a definite answer to that because I don’t know. It depends on demand what the stock would be regarded worth, etc. I could n’t answer that.” In the petition for a rehearing it is said that “it was shown to the court that the stock was selling at less than par,” but the evidence relied upon to support the statement is that of the treasurer, already referred to, to the effect that he knew of some stock having been sold for less than its' face value, the time of sale not being stated, nor the number of shares sold, or the price.
2. A number of cases cited in the company’s brief had more or less bearing upon, the legal question referred to, but were not mentioned in the original opinion because their application to the situation here presented was not regarded as sufficiently close to make a’ discussion of them desirable. We will, however, attempt a brief statement of the point involved in each, which we think is sufficient to show that these cases contain little in conflict with what we have decided.
People v. Wells, 97 N. Y. Supp. 47. The whole of the capital of a corporation was invested in realty. The tax commissioners deducted from the assessed value of the stock only the assessed value of the real estate (which was less than its real value) leaving a surplus for taxation. An action was brought by the company to review the assessment. The trial court dismissed it. On appeal two of the five judges thought the corporation was entitled to relief on the ground that the taxing officers should not be permitted to fix a higher value of the realty, in determining the value of the stock for the purpose of taxation, than.they had given it on the real-estate tax roll. One judge concurred in reversing the decision, but for the reason that he thought the property had been fairly valued, meaning apparently that the real estate was not actually worth more than its assessed value. 'The other two judges dissented on the ground that the corporation could not rightfully complain, so long as its stock was not assessed at more than what it was actually worth, saying: “The language employed [in the statute] clearly shows a legislative intent to tax corporations on the full value of their property and under the rule prescribed by the statute this is accomplished, regardless of whether the assessed valuation of real estate is more of less than it should be.” (p. 50.) Therefore of the six judges (including the trial judge) who passed upon the matter, only two expressed themselves as thinking that the undervaluation of the real estate as a separate item relieved the corporation from paying taxes upon the actual value of its stock.
Lewiston Water, etc., Co. v. Asotin County, 24 Wash. 371. Under a statute requiring a corporation to return for taxation its real and personal property, which was to be taxed as other property, an effort was made to compel a company to pay an additional tax upon its capital stock, without deduction. It was held that this amounted to an attempt at double taxation, and could not be sustained, the statute containing no provision for taxing the stock as such.
Calumet, etc. Dock Co. v. O’Connell, 265 Ill. 106. A corporation owned vacant and unimproved land. Its sole business was trying to dispose of it. Its tangible property was assessed at a value which exceeded the actual value as well as the market value of all the shares of stock. The taxing officers arbitrarily “and not in the exercise of honest judgment” attempted to add to the amount for which it was liable. A pleading setting out these facts and asking an injunction was held not to be demurable.
Hyland, Auditor, et al. v. The Brazil Block Coal Company, 128 Ind. 335. The case is purely one of statutory construction. The assessment of the stock of a corporation whose entire capital was invested in tangible property, which was duly listed and returned for taxation, was held to be prohibited by a statute reading: “ ‘Where the tangible property or the capital stock of any incorporated company is listed and assessed under this act, the shares of capital stock of such incorporated companies shall not be listed and assessed.’ ” (p. 342.)
First Trust Co. v. Lancaster County, 93 Neb. 792, 795. A trust company asked that the value of real-estate mortgages which it owned should be deducted from the gross value of its capital stock for purposes of taxation. The taxing officers refused this, apparently on the ground that the mortgagors had. contracted to pay the tax. It was held that the deduction should be made, because of a statute providing that “ ‘whenever any such bank, association or company- shall have acquired real estate or other tangible property which is assessed separately, the assessed value of such real estate or tangible property shall be deducted from the valuation of the capital stock of such association or company.’ ” (p. 793.)
Smith v. Stephens, 173 Ind. 564. A bank returned for assessment its capital stock of $50,000, a surplus of $20,000 and undivided profits of $2800, making a total of $72,800. It also reported a surplus of real estate, which had cost it $14,800, but was assessed at $7070. The taxing officers undertook to add to the $72,800, on which the bank was taxable, the additional surplus of $14,800, less the $7070 for which the land was assessed. It was held that no addition could be made, apparently on the theory that the $14,800 reported as invested in real estate was a part of the $20,000 surplus returned by the bank for taxation, the court saying:
“In making the assessment the taxing officers added to the nominal surplus of the bank $14,800 invested in real estate, which was clearly erroneous under any theory of the law. In such a case, where the sum invested in real estate is deducted from the capital stock or surplus, before or in making the return, the assessed value of the real estate should not be deducted in fixing the value of the stock, because, if it is eliminated from one side of the account it should not be included in the other.” (p. 573.)
Bank of Albia v. City Council, 86 Iowa, 28. A national bank had a capital stock of $50,000) assumed to be worth par, and owned real estate, paid for out of its capital, costing $18,500, and assumed to be worth that. The taxing officers at first deducted $6417 from the capital stock of the bank, and later $1083 more, and assessed the remainder to the stockholders. On their complaint the court held that the amount deducted should have been $13,500, saying:
“Manifestly, if the fifty thousand dollars capital stock is assessed and taxed without regard to the portion thereof thus invested in real estate, it will amount to double taxation of the stock to the extent of the thirteen thousand, five hundred dollars. In other words if the appellee’s theory is correct, it is lawful to tax the entire capital stock of fifty thousand dollars, and then, in addition, tax real estate which is acquired by an investment or use of thirteen thousand, five hundred dollars of this same stock.” (p. 32.)
How the taxing officers arrived at the amount to be deducted is not shown. It appears that the practice was to assess all at sixty per cent of its cash value. Obviously, if sixty per cent of $13,500 (or $8100) had been deducted from sixty per cent of $50,000, and the remainder had been assessed to the stockholders they would not have been injured, the result being the same as taking $13,500 from $50,000 and taxing them on sixty per cent of the difference.
Wheeler v. Co. Commissioners, 88 Maine, 174. Under a statute requiring the proportional part of the value of property assessed to a corporation to be deducted from the value of the shares for the purpose of taxation, the taxing officers appraised the shares of a water company on the theory that the specific property was worth more than the amount for which it had been. assessed. This was held to be erroneous, the court saying “it must be assumed that the requirements of law were observed and that the property was assessed ‘according to the just value thereof.’ ” (p. 180.) The court also said, however:
“No legislation of this State has authorized municipal assessors to impose a tax upon a corporation on account of its franchise, the powers and privileges granted to it by the sovereign power of the State. The State may impose such a tax, as has been frequently done and upheld; or, assessors in placing the valuation upon the shares of a corporation, should take into account the value of the franchise, because the value of the franchise necessarily affects the value of the shares, which by statute, are taxable to the owner thereof.” (p. 181.)
Savings Bank v. Nashua, 46 N. H. 389. This case construes statutes as to the situs of corporate property for taxation. The scope of the decision is aptly shown by the head-notes, which read:
“Real estate belonging to a savings bank is taxable to the bank in the town or place where the real estate is situated.
' “If a savings bank own stock in -another corporation the bank is not taxable for the stock in the town or place where the bank is situated.”
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
The’plaintiff appeals from a decision of the district court which denied him an injunction to restrain the enforcement of a city ordinance imposing an “occupation tax” of $250 per annum on all places of business in Lebanon where “cider,” “near-beer” or “two per-cent” was kept for sale, sold, bartered or given away.
The plaintiff has conducted a restaurant, confectionery and soda fountain business in Lebanon, a city of the third class, for several years, and sells sweet cider as a part of that business. His sales of cider amount to two kegs per month, and he sells it at five cents per glass. There are thirty glasses in a gallon, which make his total - annual receipts $540. This cider costs him $8.40 per keg, or $201.60 per annum,, plus the freight, which is not shown.
The legality of this ordinance so far as it seems to countenance the sale of “near-beer” or “two per-cent” is not involved. The plaintiff does not handle these decoctions.
The ordinance in part reads:
“An ordinance providing an occupation tax for all places of business where cider, ‘near-beer’ or ‘two per-cent’ may be sold and providing penalties for the violation of the provisions of this ordinance.
“Be it ordained by the Mayor and Councilmen of the City of Lebanon.
“Section 1. There is hereby levied and assessed against and upon the owner or keeper of any business house or other place where cider, ‘near-beer’ or ‘two per-cent’ may hereafter be sold, bartered or given away or kept for sale or barter or to be given away within the corporate limits of the City of Lebanon, Kansas, an occupation tax of two hundred fifty dollars per year, which said tax shall be paid to the Clerk of said city before any of said beverages shall be placed in said building or place for sale, barter or gift.
“Section 2. It shall be unlawful for any person, persons, company, firm or corporation to sell, barter or give away any cider, ‘near-beer’ or ‘two per-cent’ in any building or other place within the said city of Lebanon or to place or cause to be placed any cider, ‘near-beer’ or ‘two per-cent’ in any building or place in said city for the purpose of sale, barter or to be given away, without first having paid to the city clerk of said city the sum of two hundred fifty dollars as an occupation tax, or license, as provided in section one of this ordinance and receive from such city clerk a receipt therefor specifying that such occupation tax or license has been fully paid and setting forth a correct description of the lot, or lots or tract whereon such business is to be carried on and also specifying the term for which such occupation tax or license has been paid.
“Section 3. Nothing in this ordinance shall be construed as in any manner authorizing the sale or barter or giving away of any intoxicating liquor.”
Plaintiff’s petition alleges all the pertinent facts; relates his prosecution for violation of the ordinance; that he was denied an appeal bond by the police judge; that he was compelled to pay a fine of $25 or go to jail; and is threatened with further prosecutions; and—
“That the ordinance in question in unjust and unreasonable; not a necessary revenue measure; not a proper police regulation; not a justifiable license tax; that it is not a bona fide attempt to regulate the occupations named therein, but that it is prohibitive in its operation of the occupations named; that it is contrary to the provisions of the fourteenth amendment to the federal constitution; that it violates the provisions of section 5 of article 12 of the constitution of the state of Kansas and that it is contrary to the statutes of the state of Kansas which delegates the powers which may be exercised by cities of the third class and that it is therefore ultra vires.”
The plaintiff’s evidence supported the facts alleged in his petition; and the parties stipulated—
“. . . that the ordinance in question was regularly passed and that the city of Lebanon is attempting to, and is about to proceed to enforce said ordinance against the plaintiff. It is further stipulated and agreed that the population of the city of Lebanon is about one thousand. That the general revenues of the city of Lebanon, outside the roads and streets and sidewalks and outside of the school taxes is about $1800 per year, and that that covers the expenses of the city. Lebanon is a city of the third class.” '
This ordinance should be considered according to its avowed intent, which is the imposition of an occupation tax of $250 per annum on the business of selling sweet cider in Lebanon. The tax will probably not exhaust every dollar of profit in the year’s business, although the freight charges and cost of handling the business are not shown. We are, therefore, unable to say whether the ordinance is absolutely confiscatory under the fourteenth amendment or not. But our own constitution provides: t
“Provision shall be made by general law for the organization of cities, towns and villages;, and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.” (Art. 12, § 5.)
The charter act for cities of the third class (Gen. Stat. 1909, ch. 19) provides:
“The city council shall have authority to levy and collect a license tax on . . . merchants of all kinds, . . . confectioners, restaurants.” etc. (Gen. Stat. 1909, § 1561.)
“All license taxes shall be regulated by ordinance; arid . . . shall be at such rates per year as shall be just and reasonable,” etc. (§ 1562.)
“For the purpose or purposes mentioned in this article, the council or city commissioners, shall have power to enact and make all necessary ordinances, rules and regulations; and they shall also have power to enact and make all such ordinances, by-laws, rules, regulations and resolutions, not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this section granted for the maintenance of the peace, good government and general welfare of the city, and its trade, commerce and manufactures; and to enforce all ordinances by inflicting fines, forfeitures and penalties upon inhabitants and other persons for the violation thereof,' not exceeding one hundred dollars, for any one offense, recoverable with costs of suit, together with judgment of imprisonment until the fine and costs be paid and satisfied; and any person committed for the’nonpayment of fine and costs or either, while in custody, may be compelled to work on the streets, alleys, avenues, areas and public grounds of the city under the direction of the street commissioner or other proper officer, and at such rate per day as the council or commissioners may by ordinance prescribe, until such fine and costs are satisfied.” (Gen. Stat. 1909, § 1579,' as amended by Laws 1915, ch. 151, § 1.)
There can be no doubt that the “occupation tax” in contemplation of this city ordinance of Lebanon is simply a license tax within the meaning of the statutes above quoted. Is a tax of $250 per annum on the right to sell sweet cider in Lebanon a reasonable imposition upon that traffic? The town’s entire governmental expenses are $1800 per annum. It is a town of one thousand population. On this one phase of the plaintiff’s business he is called on to furnish nearly fourteen pen cent of the town’s requisite annual revenues. Back in the days when it was lawful under a permit from the probate court for a druggist to sell intoxicating liquors for medicinal and some other restricted purposes, it was held that a city ordinance imposing a tax of $500 on the liquor business of a druggist whose annual gross receipts from liquor sales was $1000 was unjust and unreasonable within the meaning of section 5 of article 12 of the state constitution, and the provisions of the city charter act pertaining thereto. (City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296.) That case and the one at bar are much alike. Lyons, like Lebanon, was a city of the third class. It had a population of sixteen hundred. Like Lebanon it was a small trading town serving the commercial wants of an agricultural community. Its need for governmental revenues was small. The business of selling liquors for certain purposes by licensed druggists was then a lawful business, as the sale of sweet cider is yet. The legislative declaration of the entire illegality of the liquor business came later. Perhaps the same legislative denunciation of the sale of sweet cider will follow; but for the present the sale of sweet cider is not illegal. The state law does not denounce it. This Lebanon ordinance does not denounce it. Counsel for the city seek to defend the ordinance as one “regulating the business of selling certain questionable drinks.” It does not say so. Any person who can and will pay $250 into the city treasury may sell sweet cider (and some very questionable drinks also), and the ordinance does not manifest any interest in the regulatory features of the sale of sweet cider, if there be need for regulation thereof. It does not appear that plaintiff’s place of business, or any place in Lebanon where sweet cider is sold, needs and receives any special police attention or other governmental concern which'occasions any expense to the city. This court has decided that a city ordinance regulating the sale of cider is valid. (Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113.) But the Lebanon ordinance does not profess to regulate, nor does it purport to suppress it. It merely purports to tax it as a legitimate business, but at a rate far in excess of the financial needs of the city and entirely out of proportion to other legitimate business conducted in that town.
It is urged that the ordinance serves a useful purpose in keeping the cider traffic out of the hands of “bootleggers.” Drawing upon our judicial knowledge of that specimen of the genus homo, a bootlegger is a person who sells intoxicating liquors on the sly, not from any particular business location, but carrying his wares in his bootleg, in his pockets, or keeping them in some flitting hole-in-the-wall of easy access to himself and provokingly hard of discovery to the officers of the law. When such a person establishes himself in a definite place of business, where by skillful legerdemain he can sell or pretend to sell the. innocent juice of the apple as well as beer —both “near” and “far” — and other intoxicants, the niceties of the Kansas language designate him as a “jointist” and no longer in the mere plebeian class of “bootlegger.” We do not see how the ordinance in question could give a bootlegger the slightest inconvenience; but it can readily be discerned that, however laudably intended, it might be used as a subterfuge to license the sale of “near-beer,” “two per cent” and other “malt, fermented,” etc., liquors which fall under the sweeping ban of our prohibitory law. (Gen. Stat. 1909, § 4861.) But we do not impute any such purpose to this ordinance. We merely seek to show that if we go behind its avowed terms and search for other motives and purposes to justify it, the inferences for evil stick out of it quite as prominently as the inferences for good.
In City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095, it was said:
“Whether or not an ordinance is void because unreasonable is a question of law (Lebanon v. Zanditon, 75 Kan. 273, 89 Pac. 10), and in determining the question of reasonableness ‘ “The courts are not-bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the [legislature or a city council] has transcended the limits of its authority.” ’ (City of Lyons v. Cooper, 39 Kan. 324, 328, 18 Pac. 296.)” (p. 723.)
But simply adhering to the text and terms of the Lebanon ordinance and holding it to its plain and avowed purpose— to exact a tax of $250 upon the occupation of selling sweet cider in that little city, it must be said that the tax is neither just nor reasonable; that it imposes a burden on the vendor of cider grossly out of proportion to the occupation taxes or other taxes exacted on occupations in Lebanon; that the tax bears no relation to the revenue requirements of the city, and that the ordinance imposing it bears no apparent relation to the subject of regulation, nor does there seem to be any logical relation between the tax and the general subject of regulation. The ordinance transcends the fair scope and intendment of sections 1561 and 1562 of the General Statutes of 1909, section 1 of chapter 151 of the Laws of 1915, and section 5 of article 12 of the state constitution, and is therefore void. The'judgment of the district court is therefore reversed and the cause remanded with instructions to enter judgment for the plaintiff. | [
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Green, J.;
Chalmers G. Spinden appeals his sentences imposed under the persistent sex offender statute, K.S.A. 21-4704(j). On appeal, Spinden argues that the trial court violated his constitutional rights when it doubled the maximum sentences in accordance with the persistent sex offender statute. Spinden claims that the persistent sex offender statute is unconstitutional because it creates a departure scheme whereby facts not found by a jury are used to exceed tire statutory maximum sentence. We affirm.
Spinden pled guilty to single counts of criminal sodomy and indecent liberties with a child. The presentence investigation report indicated that Spinden had previously been convicted of attempted aggravated indecent solicitation of a child. Because his current and prior convictions were for sexually violent crimes, Spinden was found to be a persistent sex offender under K.S.A. 2001 Supp. 21-4704(j). Spinden disagreed with the determination that he is a persistent sex offender and argued that any enhancement of his sentences on that ground would violate the limitations set forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
The trial court found that the persistent sex offender statute did not violate Apprendi as it is a statutory enhancement and does not involve a factual issue to be decided at the court’s discretion. Accordingly, the trial court sentenced Spinden as a persistent sex offender. The trial court doubled the high numbers in the appropriate grid boxes and sentenced Spinden to 122 months for the sodomy conviction and 68 months for the conviction of indecent liberties with a child, with the sentences to be served concurrently.
The sole issue on appeal is whether K.S.A. 2001 Supp. 21-4704(j), the statute requiring imposition of double the maximum presumptive term for a persistent sex offender, violates Apprendi and Gould. Interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the trial court’s interpretation of a statute. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
In Apprendi, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Gould, our Supreme Court addressed the application of Apprendi to what is now K.S.A. 2001 Supp. 21-4716 and held that the scheme for imposing upward durational departures is unconstitutional because it is keyed to judicial findings based on a preponderance of the evidence. 271 Kan. at 413.
The prior conviction exception in Apprendi was derived from the holding in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 119 S. Ct. 1219 (1998). There, the Court concluded that the fact of a prior conviction is a sentencing factor and not an element of the crime. As such, the prior conviction need not be presented in the indictment and proven to a jury in order to be used by the court to increase the sentence imposed. 523 U.S. at 226-27. The prior conviction exception was recognized by our Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
We must determine whether the persistent sex offender statute violates Apprendi and Gould. The statute provides in pertinent part as follows:
“The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.” K.S.A. 2001 Supp. 21-4704(j).
The statute defines a “persistent sex offender” in pertinent part as
“a person who: (1) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (2) at the time of the conviction under subsection (1) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto . . . .” K.S.A. 2001 Supp. 21-4704(j)
K.S.A. 2001 Supp. 22-3717(d)(2) provides that sexually violent crimes include rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, indecent solicitation of a child, aggravated indecent solicitation of a child, sexual exploitation of a child, and aggravated sexual battery. Any attempt, conspiracy, or criminal solicitation of these crimes also constitutes a sexually violent crime. K.S.A. 2001 Supp. 22-3717(d)(2)(K).
Here, Spinden was sentenced as a persistent sex offender in accordance with K.S.A. 2001 Supp. 21-4704(j) based on his current crimes of conviction, criminal sodomy and indecent liberties, and his prior conviction of attempted aggravated indecent solicitation. Spinden’s prior conviction of attempted aggravated indecent solicitation is a sexually violent crime as referenced by the persistent sex offender statute. As such, the enhancement of Spinden’s sentences based on his prior conviction was proper because it falls under the prior conviction exception set out in Almendarez-Torres.
However, Spinden’s sentences were enhanced not only because of his prior conviction, but also because his current crimes of conviction were sexually violent crimes. K.S.A. 2001 Supp. 21- 4716(b)(3) addresses enhancement of a sentence based on the current crime of conviction and provides:
“If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.”
Because enhancement under the persistent sex offender statute is based in part on the current crime of conviction, K.S.A. 2001 Supp. 21-4716(b)(3) may affect the sentence issued to a persistent sex offender.
Although application of K.S.A. 2001 Supp. 21-4716(b)(3) to the persistent sex offender statute has not been addressed by the Kansas appellate courts, the impact of the statute on the predatory sex offender statute, K.S.A. 2001 Supp. 21-4716(b)(2)(F), was addressed in State v. McClennon, 273 Kan. 652, 45 P.3d 848 (2002). The predatory sex offender statute provides that the trial court may issue a departure sentence if “[t]he defendant’s current crime of conviction is a crime of extreme sexual violence and the defendant is a predatory sex offender.” The statute defines “predatory sex offender” in pertinent part as “an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who . . . [h]as one or more prior convictions of any crimes of extreme sexual violence.” K.S.A. 2001 Supp. 21-4716(B)(2)(F)(ii)(a). In addition, the statute defines a “crime of extreme sexual violence” as including a felony “involving a non-consensual act of sexual intercourse or sodomy with any person.” K.S.A. 2001 Supp. 21-4716(b)(2)(F)(i)(a).
McClennon held that the upward departure sentence under K.S.A. 2001 Supp. 21-4716(b)(2)(F) for the defendant’s current conviction of rape was unconstitutional. The court rationalized as follows:
“Under K.S.A. 2001 Supp. 21-4716(b)(3), the district court may not use the fact of nonconsensual sexual intercourse to establish a ‘crime of extreme sexual violence’ unless the nonconsensual sexual intercourse is ‘significantly different’ than the usual conduct involved in such an act. The district court made no such finding here. Even if it had, or if one were implied, it remains for the court to determine whether the nonconsensual sexual intercourse involved was ‘significantly different’ from the usual crime of rape. This conclusion is one to be drawn, under K.S.A. 2001 Supp. 21-4716, without the benefit of a jury verdict beyond a reasonable doubt.” 273 Kan. at 656-57.
Accordingly, the McClennon court found that the trial court’s departure sentence issued under the predatory sex offender statute violated Apprendi because the factual aspect of nonconsensual sexual intercourse of the defendant’s current crime of rape was a statutory element of that crime that was improperly used, as an aggravating factor. Use of the statutory element of nonconsensual sexual intercourse as an aggravating factor was improper because a jury did not determine that the criminal conduct constituting that aspect of the crime was significantly different from the usual conduct captured by the aspect of the crime.
The McClennon court refused to speculate as to whether an enhanced sentence issued under the persistent sex offender statute is analogous to a sentence issued under the predatory sex offender statute. In refusing to address the argument, the court stated that “[w]e have not considered the propriety of a sentence imposed under K.S.A. 2001 Supp. 21-4704(j) in light of Apprendi and Gould, and we are not presented with the issue on the facts before us. A comparison of the two statutes is not helpful to the State’s cause and will not be undertaken here.” 273 Kan. at 657. In the present case, however, comparison of the statutes is helpful in determining that the persistent sex offender statute does not violate Apprendi and Gould.
The predatory sex offender statute and the persistent sex offender statute are dissimilar in the way they define the offenses that subject a defendant to the statutes. For example, the predatory sex offender statute requires that the defendant’s current crime of conviction be one of “extreme sexual violence.” However, the statute does not list the specific offenses that are of extreme sexual violence. Instead, the statute defines “crime of extreme sexual violence” as
“a felony limited to the following:
“(a) A crime involving a nonconsensual act of sexual intercourse or sodomy with any person;
“(b) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is 14 or more years of age but less than 16 years of age and with whom a relationship has been established or promoted for the primary purpose of victimization; or
“(c) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age.” K.S.A. 2001 Supp. 21-4716(b)(2)(F)(i).
By using statutory elements to define which crimes are of extreme sexual violence, the legislature used factual aspects of crimes to enhance sentences, which under McClennon must be determined by a jury.
Unlike the predatory sex offender statute, the persistent sex offender statute does not use statutory elements to define the offenses that subject a defendant to the statute. Instead, the persistent sex offender statute references a list of criminal offenses that the legislature has deemed to be sexually violent crimes. For example, instead of saying “a crime involving an act of sexual intercourse,” as stated in the predatory sex offender statute, the persistent sex offender statute states “[rjape, K.S.A. 21-3502, and amendments thereto.” K.S.A. 2001 Supp. 22-3717(d)(2)(A). Because the persistent sex offender statute does not use statutory elements or factual aspects of the current crime to enhance a sentence, K.S.A. 2001 Supp. 21-4716(b)(3) is not applicable and, as such, no factual aspect of the current crime must be found by a jury to be significantly different from the usual conduct captured by the aspect of the crime.
The Kansas Legislature has determined that sentencing is based on two controlling factors — the defendant’s criminal history and the crime severity level of the current offense. In addition to determining the crime severity level of each offense, the legislature has also determined that certain offenses are sexually violent crimes. As such, the statutory maximum sentence for a persistent sex offender is double the high number in the appropriate grid box.
The enhancement of Spinden’s sentences under the persistent sex offender statute was not a product of the scheme embodied in K.S.A. 2001 Supp. 21-4716, which the Gould court found to be unconstitutional on its face. Spinden’s enhanced sentences as a persistent sex offender were based on his prior offense and his current crimes of conviction for sexually violent crimes. Use of his prior conviction to enhance his sentences were proper under Almendarez-Torres. In addition, use of the current crimes of conviction to sentence Spinden as a persistent sex offender does not violate K.S.A. 2001 Supp. 21-4716(b)(3). As a result, we find that Spinden’s sentences under the persistent sex offender statute did not violate Apprendi and Gould.
Affirmed. | [
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Beier, J.:
Robert L. Campbell appeals his conviction of battery against a law enforcement officer, contending the district court erred by (1) giving a jury instruction that omitted the requisite intent to cause physical contact with another person; (2) failing to give an instruction on general criminal intent; and (3) unconstitutionally imposing an upward durational departure sentence.
Campbell was on suicide watch at the Sedgwick County Detention Center on the morning of the incident giving rise to this case. Campbell started screaming obscenities and urinated on the floor of his cell. This behavior was ignored, but approximately 30 minutes later several members of the staff attempted to deliver medication to Campbell.
Deputy Madaline Magdaleno was standing on the right side of Campbell’s door, wearing her sheriff s department uniform. Magdaleno testified Campbell was angry and yelling and threw a cup of liquid on her arm and chest when she tried to hand him his medication.
Deputy David Spears and staff nurse Kathy Clark corroborated this testimony. Clark observed Campbell dip a cup into the toilet stool in his cell, and she backed away from the door because she thought she knew what he planned. She then saw the liquid come flying out of the doorway and land on Magdaleno. Spears also testified Campbell grabbed a Styrofoam cup, dipped it into the toilet, and threw the liquid, which hit the inside of the door and Magdaleno.
Campbell was charged with battery against a law enforcement officer in violation of K.S.A. 2000 Supp. 21-3413(a)(5). In Campbell’s first trial, the jury deadlocked. At his second trial, the district court gave the following juiy instruction:
“To establish [batteiy against a law enforcement officer], each of the following claims must be proved:
“1. That Mr. Campbell intentionally caused physical contact with Madaline C. Magdaleno in a rude, insulting or angry manner;
“2. That Ms. Magdaleno was a county correctional officer or employee, and Mr. Campbell was a person confined in the county jail;
“3. That Ms. Magdaleno was engaged in the performance of her duty; and
“4. That this act occurred on or about the 7th day of September, 1998, in Sedgwick County, Kansas.
“As used in this instruction, the State must prove that Mr. Campbell intended to throw the liquid. The State is not required to prove Mr. Campbell intended to throw the liquid onto Ms. Clark, Deputy Magdaleno or Deputy Fletcher.”
Defense counsel objected to the last paragraph of this instruction, arguing it removed the necessary element of intent to actually touch a person. Defense counsel also asked the court to give PIK Crim. 3d 54.01-A, the general criminal intent instruction, to clarify the intent necessary under the statute. The district court responded:
“Okay. Well, 54.0 — giving 54.01-A in addition to the last paragraph of 3 isn’t going to help you, because the last paragraph of 3 directs the jury’s attention to what the intention was. And I’m convinced reading Judge Royse’s decisionin State vs. [Esher], that in her analysis of this issue that it’s not necessary for the State to prove beyond a reasonable doubt that Mr. Campbell intended that the liquid strike either — well, strike anyone, Deputy Magdaleno in particular. So, I’ll decline to delete the last paragraph of Instruction Number 3.”
Campbell was convicted of battery against a law enforcement officer, and the State filed a motion for an upward durational departure sentence. After a hearing, the district court found Campbell’s lack of amenability to rehabilitation, demonstrated by his commission of crimes in the county jail, constituted a substantial and compelling reason for departure. The district court doubled the maximum presumptive term and sentenced Campbell to 82 months’ imprisonment.
Intent Instructions
‘When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a juiy could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. [Citation omitted.]” State v. Jackson, 270 Kan. 755, 760-61, 19 P.3d 121 (2001).
Battery is defined by K.S.A. 2000 Supp. 21-3412(a)(2) as “intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” This definition is explicitly incorporated in the statute outlining battery against a law enforcement officer, K.S.A. 2000 Supp. 21-3413. We must decide whether battery against a law enforcement officer requires a showing that the defendant intended to cause physical contact with another per son, in Campbell’s case, by throwing the liquid. If so, the jury instruction questioned by Campbell should have said so.
The district court believed State v. Esher, 22 Kan. App. 2d 779, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996), answered the relevant question. In Esher, the defendant argued aggravated battery required proof of a specific intent to injure. This court identified a specific intent crime as one whose defining statute, “ ‘in addition to the intent required by K.S.A. 21-3201, . . . identifies or requires a further particular intent which must accompany the prohibited acts.’ ” 22 Kan. App. 2d at 782. Under this definition, we said, aggravated battery was not a specific intent crime. 22 Kan. App. 2d at 784, 786.
Esher did not actually reach the ultimate legal question in this case: What, exactly, must a battery defendant have had a general intent to do? The plain language of the battery statute is clear on this point. The defendant must have possessed the general intent to “caus[e] physical contact with another person.” K.S.A. 2000 Supp. 21-3412(a)(2). Mere recklessness is not enough, compare K.S.A. 2000 Supp. 3412(a)(1) (reckless state of mind adequate to prove battery when it leads to bodily harm of another person), but neither must the State have to prove that the defendant had physical contact with a specific individual in mind. It is possible, given the wording of the district judge’s comments on the instructions that his intention in including die final paragraph of the elements instruction was to communicate only this last point, that is, that Campbell need not have possessed the intention for the liquid to hit Magdaleno specifically. But the paragraph as written could also be interpreted to mean that Campbell could be found guilty if he merely intended to throw the liquid, without any companion intention that it hit someone other than himself. This reasonable construction of the paragraph’s language misstates Kansas law and means the giving of the instruction was error.
We also agree with Campbell that the district court’s refusal to give PIK Crim. 3d 54.01-A on general criminal intent compounded the error in the last paragraph of the elements instruction. PIK Crim. 3d 54.01-A provides:
“In order for the defendant to be guilty of the crime charged, the State must prove tlrat (his)(her) conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.”
The Notes on Use for PIK Crim. 3d 54.01-A state it should be given only when: (1) the crime requires a general criminal intent; and (2) the defendant’s state of mind is a substantial issue in the case. Although Campbell met both elements of this test, this instruction might have been unnecessary had the elements instruction not included its last ambiguous paragraph. Given that error, this instruction could have helped.
In State v. Eichman, 26 Kan. App. 2d 527, 989 P.2d 795, rev. denied 268 Kan. 850 (1999), we faced a similar issue. In that case, the defendant raised his hand holding a gun when officers surrounded his truck. Defendant claimed he had just picked the gun up off the truck’s floorboard and did not realize officers were present. He was convicted of aggravated assault of a law enforcement officer and argued on appeal that the district court erred by not giving PIK Crim. 3d 54.01-A. The more demanding clearly erroneous standard of review applied because the instruction had not been requested at trial.
This court agreed that aggravated assault of a law enforcement officer was a general intent crime and that Eichman had disputed the intent issue. The district court erred by not giving the instruction, we said, but the error was not reversible. The defendant had not shown how a layperson’s understanding of intent differed from the definition of intent in K.S.A. 21-3201 or PIK Crim. 3d 54.01-A. 26 Kan. App. 2d at 528-31.
As in Eichman, the crime at issue here is a general intent crime, and the defendant’s state of mind was a substantial issue in the case. This case differs from Eichman, however, not only because of the standard of review but because, to the degree the substance of 54.01-A was present in the elements instruction, it was contradicted or confused by the last paragraph. Cf. State v. Yardley, 267 Kan. 37, 43, 978 P.2d 886 (1999) (no error when substance of PIK Crim. 3d 54.01-A included in elements instruction).
Having considered all of the instructions given in Campbell’s case together, read as a whole, we are compelled to conclude that they did not properly and fairly state the law as applied to the facts and the jury could reasonably have been misled. Reversal of his conviction is necessary.
Upward Durational Departure
Campbell argues the district court unconstitutionally imposed an upward durational departure sentence without presenting the facts used for the departure sentence to a jury. The parties agree that State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), controls this issue. Even if Campbell’s conviction was affirmed, his sentence would have to be vacated and the case remanded for resentencing.
Reversed and remanded. | [
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Marquardt, J.:
Justin Vogt and Jacob Graber were convicted of hunting deer with an artificial light in violation of K.S.A. 32-1003(g). Vogt and Graber appeal the trial court’s interpretation of K.S.A. 32-1003(g) and the sufficiency of the evidence. We affirm.
On the evening of December 8,2000, Conservation Officer Rodney Albright of the Kansas Department of Wildlife and Parks was patrolling around Pretty Prairie, Kansas. At about 8:45 p.m., he saw two pickup trucks driving west from town. Officer Albright followed the trucks with his headlights turned off. After several miles, the lead truck shined a spotlight into the surrounding wheat fields. The spotlight illuminated three deer. The second truck left the road and pursued the deer across an open wheat field.
The deer escaped into tall grass, and the second truck returned to the road. Officer Albright activated his emergency lights and the trucks fled. After approximately Vz mile, the lead truck pulled over.
Officer Albright questioned Graber and Vogt, who were the occupants in the truck. Both admitted that they had spotlighted the deer and threw tire spotlight out of the truck during the pursuit. Officer Albright issued citations and released them.'No weapons were found in their truck.
The State charged Vogt and Graber with hunting deer with an artificial light, a violation of K.S.A. 32-1003(g). The statute makes it unlawful for any person to
“throw or cast the rays of a spotlight, headlight or other artificial light on any highway, roadside, field, grassland, woodland or forest for the purpose of spotting, locating or taking any wildlife while having in possession or control, either singly or as one of a group of persons, any rifle, pistol, shotgun, bow or other implement whereby wildlife could be taken . . . .” (Emphasis added.)
At trial, the occupants of the second truck, Clay Bontrager and Jason McClure, testified that though they followed Vogt and Graber, they had no coordinated attempt to kill or harass deer, with their trucks. They testified that the spotlight was never on the deer because Vogt and Graber turned the spotlight off when Bontrager and McClure went into the field.
Vogt admitted that he used a spotlight, but claimed he did not know the second truck intended to pursue the deer off the road. Graber testified that the group was intent on finding and watching large bucks, but he was upset when the second truck went off the road.
In closing argument the trial court asked the State:
“THE COURT: The problem I have here, Mr. Bruce, is you’re saying this statute provides for other implement. R talks about rifle, pistol, shotgun, bow or other implement. You’re saying the other implement can be a vehicle?
“MR. BRUCE: Yes.
“THE COURT: So anytime you spotlight deer from a vehicle, are you in violation?
“MR. BRUCE: If the wildlife could be taken. If it was a situation where the vehicle could fit into. . . whereby wildlife could be taken.”
The trial court found Vogt and Graber guilty, stating:
“I think the entire case rests upon the issue of the legislative intent in the phrase other implement. All the other requirements of the statute have been met. . . . Neither of tírese defendants had in their possession or control what we generally refer to as a weapon. What the statute refers to; rifle, pistol, shotgun or bow.
“The evidence I have before me is sufficient to convince me that all four people were working in concert. . . .
“And as Mr. Bruce points out, the word taken, taking of wildlife has a very broad definition. Much broader than just kill or catch or trap. It indicates pursue. It includes harass. And clearly that can be done with a vehicle and was done with a vehicle. The deer were pursued. The deer were harassed with a vehicle. . . .”
Vogt and Barber timely appeal.
Interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the trial court’s interpretation. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). Criminal statutes are to be construed strictly against the State. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Vogt and Graber claim that the trial court misinterpreted the meaning of K.S.A. 32-1003(g), and pursuit and harassment of wildlife are not a means of “taking” them. However, they ignore K.S.A. 32-701(t), which states: “ ‘Take’ means harass, harm, pursue, shoot, wound, kill, molest, trap, capture, collect, catch, possess or otherwise take, or attempt to engage in any such conduct.” Vogt and Graber also claim that a vehicle cannot be an “implement” with which wildlife can be taken. The term “implement” is not defined in the statute.
The legislative history of K.S.A. 32-1003 noted that the purpose of the bill is to protect landowners’ rights and prohibit illegal hunting or poaching with an artificial light. It allows the landowner to carry a firearm for protection, surveillance, and normal farming and ranching activities.
K.S.A. 32-1003(g) clearly prohibits placing a spotlight on wildlife for the purpose of spotting, locating, or taking these animals if the person or group of persons is in possession of any of the listed items whereby a taking could occur. Vogt and Graber were spotlighting while their companions used the second truck to harass, pursue, or molest the deer. Because spotlighting is commonly done from trucks, the question remains, could the truck be used for taking?
The rule of ejusdem generis (of the same kind) is a well known maxim of construction to aid in ascertaining the meaning of a statute or other written instrument which is ambiguous. Under the maxim, where enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms. State v. Moler, 269 Kan. 362, 363, 2 P.3d 773 (2000).
K.S.A. 32-1003(g) requires that the person possess or control the “other implement whereby wildlife could be taken.” There is no question that Vogt and Graber possessed and controlled the truck. Even though a vehicle is not commonly thought of as a weapon, the very broad definition of the word “take” in K.S.A. 32-701(t), combined with the use of the words “whereby wildlife could be taken,” causes us to conclude that a vehicle falls within the meaning of “other implement.”
Vogt and Graber argue that the State did not present any direct evidence showing a coordinated attempt to take wildlife. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are to be resolved in favor of the State. State v. McCray, 267 Kan. 339, 343, 979 P.2d 134 (1999). Even the gravest offense may be established by circumstantial evidence. State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000).
In this case, Officer Albright testified that he observed the two trucks travel together for over 7 miles. They made several turns together in the countryside. Further, when the lead truck turned on its spotlight, the second truck continued to follow. There was sufficient evidence to find Vogt and Graber guilty beyond a reasonable doubt.
Affirmed. | [
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Knudson, J.:
In this consolidated appeal by Daniel J. Johnson, all issues on appeal have been waived or agreed upon except for appropriate disposition upon remand in docket number 86,056 (Edwards County case number 00 CR 27). Johnson was initially charged with first-degree murder. The parties entered into a plea agreement; Johnson pled to an amended charge of voluntary manslaughter; the parties agreed to recommend to the sentencing court an upward durational departure of 96 months. The trial court accepted Johnson s plea, and he was sentenced to 96 months’ confinement consecutive to a 19-monfh sentence that had previously been imposed in docket number 86,146 (Edwards County case number 97 CR 45).
Initially, the issue on appeal was whether the dispositional sentence imposed is illegal under Kansas Supreme Court’s holding in State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001). The State acknowledges the applicability of Cody, but argues under State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001), it should have the option to require retrial on the amended complaint or permit imposition of an appropriate presumptive sentence for manslaughter. The State’s argument is without legal merit.
In Boswell, our court held:
“When a plea agreement includes an agreement to recommend an illegal sentence, the sentencing court imposes the recommended but illegal sentence, and the illegal sentence impermissibly increases the defendant’s term of imprisonment, the State may either allow the defendant to withdraw his or her guilty plea or agree that the illegal portion of tire sentence be vacated and die defendant be resentenced to the proper lesser term.” (Emphasis added.) 30 Kan. App. 2d 9, Syl. ¶ 8.
We acknowledge the above holding might lack clarity. What the Boswell panel intended to say is that the State may acquiesce in the defendant’s request for a new trial or, in the alternative, may insist the defendant be resentenced to the proper lesser term. In crafting its holding, the Boswell panel specifically adopted the following reasoning expressed in Jolly v. State, 392 So. 2d 54 (Fla. Dist. App. 1981).
“ ‘[D]ue to the fact that a post-conviction motion may be raised and ruled upon years after imposition, the state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both tire judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resentenced . . . .’ 392 So.2d at 56.” 30 Kan. App. 2d at 14.
Johnson has emphatically stated on appeal he does not seek a new trial. Consequendy, under Boswell we must vacate the illegal sentence that was imposed in 00 CR 27 and remand for imposition of a presumptive sentence under the Kansas Sentencing Guidelines Act. K.S.A. 21-4701 et seq. For the reasons previously stated, we dismiss Johnson’s appeal of die trial court’s judgment in 97 CR 45.
Appeal dismissed in part, sentence vacated, and case remanded for resentencing. | [
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Green, J.:
Joseph Beckman, doing business as B&B Drilling, appeals from a judgment of the district court sustaining a Kansas Department of Human Resources (KDHR) hearing officer’s decision, which had been approved by the Secretary of Human Resources. In sustaining the hearing officer’s decision, the district court determined that Beckman’s employee, David L. Miller, was entitled to the payment of unpaid wages, interest, and a penalty totaling $15,013.18 under the Kansas Payment of Compensation Act, K.S.A. 44-313 et seq.
On appeal, Beckman contends that Miller’s claim based on an oral agreement for unpaid wages was legally unenforceable. In addition, Beckman maintains that Miller’s claim for unpaid wages was barred by the statute of limitations. Finally, in the alternative, Beckman contends that the trial court erred in assessing a penalty and awarding interest on Miller s claim for unpaid wages. We disagree and affirm.
Miller worked for Beckman as a general laborer helping drill water wells from November 1990 until October 1, 1995. Based upon their verbal agreement, Miller worked full time and was paid $6 per hour. Beckman paid Miller’s wages once a month. They verbally agreed that any of Miller’s wages in excess of $800 per month would be withheld and paid upon demand.
Miller was Beckman’s only employee. Miller and Beckman usually worked together. When they ate together at a restaurant, Beck-man paid for Miller’s lunches. They had no agreement that the lunch was a cash advance against Miller’s wages or that Miller would repay Beckman. As agreed, Beckman paid Miller $800 per month and withheld the remainder owed. The first time Miller asked for his accumulated withheld wages, he was paid without problems. Miller did not ask again and his excess wages accumulated for about 4 years.
When Beckman terminated Miller’s employment in October 1995, Miller asked for his unpaid wages that had accumulated from August 1991 through October 1995, totaling $12,728. Beckman told Miller he disputed the amount owed, but not the hours Miller had worked. Beckman said he was going to deduct the cost of Miller’s lunches. This was the first time Beckman told Miller that the cost of his lunches would be deducted from his pay.
Beckman sent payments to Miller from November 1995 through June 1996. Miller credited those payments against the wages due from August 1991 through July 1993 and part of the wages .due for August 1993. Beckman still owed the balance for August 1993 and all of the wages from September 1993 through October 1995, totaling $6,958. Miller’s computations were based on his records of hours worked and Beckman’s payments. On August 21,1996, Miller filed a claim for unpaid wages with KDHR.
Beckman claimed he had always intended to deduct the costs of Miller’s lunches but never mentioned it to Miller before his termination. Beckman computed the lunch expenses by multiplying 880 days at $5 per day, or $4,400. Although Beckman did not have records showing the hours Miller worked, he claimed Miller did not correctly document the time he had worked.
Beckman testified that he did not knowingly and willfully withhold wages. He maintained that he paid the amount he and Miller had agreed upon. Miller stated that he had agreed to the lesser amount because Beckman told him it did not matter if he disagreed and because Miller did not have any money.
The KDHR hearing officer found Beckman did not have Miller’s written consent to withhold money from Miller’s wages and ordered Beckman to pay Miller $6,958 for unpaid wages and $1,097.18 in interest. The hearing officer also concluded that Beck-man’s failure to pay was willful and assessed a 100% penalty, which brought the total amount assessed against Beckman to $15,013.18.
Upon review, the district court concluded that Miller’s claim was within the 3-year statute of limitations. The district court rejected Beckman’s argument that the oral agreement to withhold wages was unenforceable, stating that Beckman could not use his wrongful act to unjustly enrich himself. Finally, the district court concluded that the hearing officer did not abuse his discretion by awarding interest and a penalty.
“The standard of judicial review of an administrative agency action is defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.” National Council on Compensation Ins. v. Todd, 258 Kan. 535, 538, 905 P.2d 114 (1995). The court shall grant relief if it determines “the agency has erroneously interpreted or applied the law” or “the agency action is based on a factual determination, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(c)(4) and (7).
In reviewing a district court’s review of an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as does the district court. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999).
Oral Agreement
Beckman first argues that his verbal agreement with Miller to withhold wages in excess of $800 per month violated K.S.A. 44-319(a) and that agreements which are contrary to law are unenforceable.
Every employer must pay all wages due to an employee at least monthly, on regular paydays. K.S.A. 44-314(a). An employer may not “withhold, deduct or divert any portion of an employee’s wages unless . . . the employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee.” K.S.A. 44-319(a)(3). “In determining the rights which accrue under an employment contract, the entitlement thereto or eligibility therefor, the contract controls so long as it is not unreasonable or illegal.” Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 611, 647 P.2d 1274 (1982). Clearly, the oral agreements to withhold Miller’s wages in excess of $800 per month were illegal under K.S.A. 44-314(a) and K.S.A. 44-319(a).
What Beckman fails to realize is that their oral agreement had two provisions: (1) that Miller would perform labor services for Beckman and in exchange Beckman would pay Miller $6 per hour; (2) that any wages Miller earned in excess of $800 per month would be withheld until Miller demanded payment. It is only the second provision which was unlawful and unenforceable. Neither KDHR nor the district court was enforcing the illegal provision. Rather, they were enforcing the first provision which was lawful. As a result, Beckman’s argument fails.
Statute of Limitations
Next, Beckman contends that Miller cannot collect his unpaid wages because Miller should have demanded payment when legally due, that is, monthly, and, if so, the 3-year statute of limitations for verbal agreements bars part of Miller’s claim and the award. He contends that because the hearing officer made no finding of fact concerning the amount of wages which accrued before August 1993, the case should be remanded to KDHR for such a finding and reduction of the award by that amount.
On the other hand, the KDHR argues that Miller demanded payment of his withheld wages in October 1995 and that is when the statute of limitations began to accrue. According to KDHR, the statute of limitations did not run because Miller filed his claim less than 1 year after his demand.
“A cause of action accrues when the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement. [Citations omitted.]” Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 410, 582 P.2d 244 (1978). “There must be a right, a duty, and a default. [Citation omitted.]” 224 Kan. at 410.
An employer must pay all wages due to an employee at least monthly. K.S.A. 44-314(a). When an employee is discharged, the employer must pay the employee’s earned wages not later than the next regular payday that the employee would have been paid if still employed. K.S.A. 44-315(a). Under these statutes, Miller’s cause of action accrued when Beckman failed to pay Miller’s earned wages on the regularly monthly payday. If Miller earned wages in August 1993 and the pay period was monthly, the latest date Miller’s cause of action accrued for the August 1993 wages was August 31, 1996. Here, Miller filed his claim on August 21, 1996. Thus, he could be awarded wages for the period between August 21, 1993, and August 31, 1996, which would include the months after August 1993 until his termination in October 1995.
Miller told the hearing officer he understood he could only file a claim for unpaid wages for the 3-year period before filing his claim, or August 21, 1996. Miller explained that Beckman made payments from October 1995 through June 1996 towards the amount that Miller demanded at the time of his discharge. Miller stated the balance of his unpaid wages for August 1993 was $52. According to Miller, Beckman still owed that amount and all of the wages earned from September 1993 through October 1995, totaling $6,958. Thus, substantial competent evidence supports the hearing officer’s award of $6,958 for unpaid wages, as that amount included only wages within the 3-year statute of limitations.
Penalty
Next, Beckman makes several arguments regarding the assessment of a penalty. First, he argues that the evidence does not support the hearing officer s finding that he knowingly and willfully withheld Miller’s wages. If so, he contends the penalty should not have been assessed.
A penalty is assessed only if “an employer willfully fails to pay an employee wages” as required by the wage statutes. K.S.A. 44-315(b). Both parties rely upon the definition of “willful,” as used in K.S.A. 44-315(b), that was stated in Holder, 224 Kan. at 411.
In Holder, the court noted that whether an employer willfully failed to pay the earned wages is a question of fact to be determined by the trier of fact. 224 Kan. at 411. Our Supreme Court adopted the definition used by the trial court: “ ‘A willful act is one indicating a design, purpose, or intent on the part of a person to do wrong or to cause an injury to another.’ ” 224 Kan. at 411. The court found the evidence supported the finding that the employer acted willfully because the gross profit figures previously used to figure an employee’s commission had large deductions subtracted from it and the decision to subtract those unusual deductions was made unilaterally by the employer after the last discussion regarding unpaid wages with the employee. Morever, the employer also placed a release on the back of the check to forestall litigation in violation of K.S.A. 44-316(b). 224 Kan. at 411-12.
Beckman contends that Miller conceded that he agreed to have the costs of his lunches withheld from the accumulated wages that Beckman owed him. As a result, Beckman maintains that his acts were not “willful.” Further, Beckman maintains that the hearing officer did not find his act indicated a design, purpose, or intent to wrong or cause injuiy to Miller. Beckman asserts that the hearing officer, instead of making the correct finding, created a presumption that Beckman knew the law about payment of wages and held Beckman did not rebut this presumption. Beckman contends that this rebuttable presumption violates the rule established in Weinzirl v. The Wells Group, Inc., 234 Kan. 1016, 677 P.2d 1004 (1984).
In assessing the penalty, the hearing officer acknowledged his previous conclusion that Beckman’s refusal to pay was contrary to law. The hearing officer continued, “The law presumes that [Beck-man] knew the law with respect to payments of wages. Unrebutted, that violation is indicative of [Beckman’s] knowledge and intent. [Beckman’s] evidence does not rebut that presumption.”
Obviously, the hearing officer was referring to a well-known rule of law “ ‘that all persons are presumed to know and are bound to take notice of general public laws of the country or state where they reside as well as the legal effect of their acts. See, 20 Am. Jur., Evidence, § 211, p. 208.’ ” Hazlett v. Motor Vehicle Department, 195 Kan. 439, 442, 407 P.2d 551 (1965). “ ‘[A] person is presumed to know the law and that contracts are made in contemplation of existing law which becomes a part of the contract.’ ” In re Estate of Fortney, 5 Kan. App. 2d 14, 19, 611 P.2d 599, rev. denied 228 Kan. 806 (1980) (quoting Shannep v. Strong, 160 Kan. 206, 215, 160 P.2d 683 [1945]).
The hearing officer’s statement that Beckman failed to “rebut the presumption” was nothing more than a finding that Beckman did not prove he had a written agreement authorizing Beckman to withhold part of Miller’s earned wages or lunch costs. Or, stated another way, the hearing officer determined that Beckman had acted unlawfully. This finding alone, however, was insufficient to assess a penalty. There must be facts that show Beckman’s act was willful.
In Weinzirl, the hearing officer’s decision merely stated: “ ‘The earned wages . . . were knowingly withheld from Claimant and this action was willful on the Respondent’s part.’ ” 234 Kan. at 1022. The hearing officer concluded the wage agreement provision allowing earned commissions to be withheld as liquidated damages violated two wage payment statutes and an employer who knowingly and willfully entered into a contract that violates the statutes must pay a penalty. In applying the Holder definition of willful, the court held the district court was correct in reversing the hearing officer’s decision because “the hearing officer did not find that [the employer] had a design, purpose or intent to willfully wrong or injure [the employee] when [the employer] failed to pay the disputed wages.” 234 Kan. at 1023.
Unlike Weinzirl, the hearing officer in this case did not merely state that Beckman knowingly withheld the earned wages from Miller and that his action was willful. After stating that Beckman had failed to “rebut the presumption,” the hearing officer specifically recited facts that showed Beckman acted willfully:
“[T]he evidence supports the conclusion that [Beckman] knew of the obligation and willfully refused to pay, to-wit: [Beckman] did not mention the obligation before, during or after any one of the hundreds of lunches eaten together, until [Miller] asked for his wages. And [Beckman] kept no accounting of the dates or the amount expended to facilitate accurate reimbursement. These facts give rise to the obvious conclusion that the decision to withhold [Miller’s] wages for lunches was an afterthought and an excuse not to pay, contrived later, with no relationship to a sincere belief by [Beckman] that the wages were rightfully withheld. [Beck-man’s] act was willful and knowing.”
The language that Beckman’s decision to withhold Miller’s wages for lunch costs was “an afterthought and an excuse not to pay, contrived later with no relationship to a sincere belief . . . that the wages were rightfully withheld” is synonymous to language that Beckman had “a design, purpose or intent to willfully wrong or injure” Miller. As a result, Beckman’s argument fails.
Beckman also contends that the finding that he did not keep an accounting of the lunches is erroneous because (1) it overlooks copies of his cancelled checks for Miller’s lunches, (2) it disregards his testimony concerning his intent, and (3) it fails to acknowledge that the parties had a very informal employment relationship.
At the hearing, Beckman specifically testified he calculated the amount of Miller’s lunch costs by estimating the number of days he paid for Miller’s lunches and then multiplying those days by $5. When he filed his request for review with the Secretary of Human Resources, Beckman attached his computation of the hours Miller worked and copies of his canceled checks. The Secretary found that Beckman had ample opportunity to present his evidence to the hearing officer regarding the claim, including rebuttal evidence, but failed to do so. The Secretary concluded that the hearing officer decided the case on the basis of the evidence presented at the hearing and affirmed his decision. Beckman does not allege that the hearing officer prevented him from presenting this evidence at the hearing. As a result, Beckman’s argument fails.
Next, Beckman explained that he withheld Miller’s lunch expenses until Miller was terminated because that was the method he had used for his previous employee and it was “just logic to me.” Although Beckman may have testified about his intent, his conduct showed his intent. The hearing officer relied upon Beck-man’s conduct, not his words, to determine intent. An appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Garvey Elevators, Inc. v. Kansas Human Rights Commn, 265 Kan. 484, 496, 961 P.2d 696 (1998).
Next, Beckman argues that the penalty was erroneously assessed because the hearing officer determined that Miller demanded payment of his earned wages when he was terminated in October 1995. Beckman contends that Miller first demanded his unpaid wages when he filed his claim with KDHR, or August 21,1996. If the latter date is used, according to Beckman, no authority existed to assess a penalty because he “appealed [Miller’s] demand within 8 days of its receipt; [sic] pursuant to K.S.A. 44-315.”
An employer must pay die employee’s wages at least monthly. K.S.A. 44-314(a). The employer must pay the employee’s earned wages not later than the next regular payday if the employee is discharged. K.S.A. 44-315(a). If an employer willfully fads to pay the employee’s wages under K.S.A. 44-314 or K.S.A. 44-315(a), the employer is hable for the wages due and a penalty “in the fixed amount of 1% of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to 100% of the unpaid wages, whichever is less.” (Emphasis added.) K.S.A. 44-315(b).
First, Beckman misconstrues the italicized portion of the statute. It does not state the 8th day after receipt of the employee’s claim. Rather, it references the date that payment was required under K.S.A. 44-314 or K.S.A. 44-315(a). Or, stated another way, if the employer fails to pay an employee wages within 8 days after the employee’s wages are due under the wage statute when the employee is discharged or resigns, a fixed amount based upon 1% of the unpaid wages can be assessed daily. Second, the italicized portion of the statute does not apply to Beckman because his penalty was not computed on a daily penalty fixed upon 1% of Miller’s unpaid wages. His penalty was assessed on “an amount equal to 100% of the unpaid wages.” As a result, this argument fails.
Interest and Penalty
Finally, Beckman contends the hearing officer did not have authority to assess both interest and a penalty. He relies upon Weinzirl.
K.S.A. 44-323(a) provides that the hearing officer has discretion to assess interest, as provided under K.S.A. 16-201, on unpaid wage claims from the date the wages were due as defined under K.S.A. 44-314.
In Weinzirl, the hearing officer awarded the employee unpaid wages and a penalty against the employer, but not interest. The employer appealed to the district court which upheld the award of wages but reversed on the penalty and refused to award prejudgment interest that the employee claimed for the first time in district court. The district court stated this was not an appropriate case in which to award interest. Both parties appealed.
The court noted that the Kansas Wage Payment Act contained no provision authorizing interest in addition to the statutory penalty until 1983. In 1983, K.S.A. 44-323(a) was amended to authorize the assessment of interest. 234 Kan. at 1023. The court held that after “the 1983 amendment, the awarding of interest is discretionary and may be assessed on the wage claim found due and owing from the date wages were due. The district court’s refusal to award interest was proper.” 234 Kan. at 1023. Although the court concluded that the district court’s refusal to award interest was proper, it did not preclude the awarding of interest and a penalty after the 1983 amendment to K.S.A. 44-323(a).
Here, the hearing officer did not err by awarding both interest and a penally.
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Green, J.:
Robert C. Hunziker was convicted of felony criminal damage to property and misdemeanor theft and ordered to pay restitution. On appeal, Hunziker contends that the trial court abused its discretion when it ordered restitution for items other than the fair market value of the damaged property. In addition, Hunziker contends that the court erred when it included the vie tim’s attorney fees in the restitution order. Finally, Hunziker contends that the trial court wrongly failed to consider his other financial obligations before imposing the restitution order. We affirm in part, reverse in part, and remand with directions.
Robert C. Hunziker pled guilty to felony criminal damage to property and misdemeanor theft. Hunziker was granted probation. One of Hunziker’s probation conditions was to pay restitution to Floyd Van Loenen, the victim of the criminal damage to property.
At the restitution hearing, Van Loenen testified he was a part-time farmer and backhoe operator. In 1979, he purchased a 1975 John Deere backhoe for $12,500. Hunziker and his codefendant damaged Van Loenen’s backhoe by breaking it with a crowbar and setting it on fire. Van Loenen furnished pictures of the damaged backhoe. Although Van Loenen claimed the backhoe’s condition was the same as the day he purchased it, he did not know the fair market value of the backhoe immediately before it was damaged. Instead, he provided itemizations of his damages. Van Loenen summarized his request for restitution as follows:
Repairs $ 9,311.32
Replace and mount tires 1,018.97
Lost work 2,115.00
Hired work to complete jobs 400.00
Towing expenses 125.88
Mileage (four trips, 220 miles per round trip to check repairs) 272.80
Touch-up paint 21.97
Private attorney fees 700.00
Total $13,965.94
The claim for lost work was based upon calls that Van Loenen received for work and charges he would have made for that work had his backhoe not been damaged. Van Loenen explained that two-thirds of the lost work amount was profit and one-third would be his expenses. Van Loenen also requested statutory interest on the restitution order.
Hunziker’s codefendant presented evidence showing that the fair market value of Van Loenen’s backhoe before it was damaged ranged from $7,500 to $8,750. Hunziker argued that the trial court could only award the lesser amount of either the fair market value of the backhoe or the repairs for the physical damage to the backhoe, which included tire touch-up paint. He contended the trial court had no authority to order restitution for work that was not performed, attorney fees, or interest, and left to the trial court’s discretion any restitution orders regarding the remaining expenses.
The trial court ordered Hunziker to pay the following restitution amounts jointly and severally with the codefendant:
Tractor (fair market value) $ 8,750.00
Lost work (two-thirds profit of $2,115) 1,410.00
Hired work 400.00
Towing expenses 125.88
Mileage 272.80
Touch-up paint 21.97
Van Loenen’s private attorney fees 700,00
Total $11,680.65
The trial court also ordered Hunziker to pay interest on the restitution amount at the judgment rate. Hunziker was ordered to pay $200 per month until the restitution was paid in full.
In State v. Casto, 22 Kan. App. 2d 152, 153-54, 912 P.2d 772 (1996), we set out our standard of review as follows:
“A sentencing court has substantial discretion when ordering the amount of restitution. [Citation omitted.] Moreover, the method of determining the amount of restitution is a matter within the discretion of the trial court. [Citation omitted.] Judicial discretion is abused only where no reasonable person would take the view adopted by the court. [Citation omitted.]”
Argument
Hunziker does not contest the reasonableness of the amount that the trial court ordered for each type of damage. Rather, he argues that only the physical damage to the property can be ordered as restitution under K.S.A. 2001 Supp. 21-4610(d)(1). According to Hunziker, tire trial court abused its discretion by awarding restitution for the other damages.
In sentencing the defendant to a nonprison sentence, the trial court shall order the defendant to comply with a probation con dition for “reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, . . . unless the court finds compelling circumstances which would render a plan of restitution unworkable.” K.S.A. 2001 Supp. 21-4610(d)(1). K.S.A. 2001 Supp. 21-4610(d)(1) requires the trial court to order restitution for the offense of conviction. The purpose of restitution is to compensate the victim and deter and rehabilitate the defendant. Restitution imposed as a condition of probation is an option which the defendant may voluntarily exercise to avoid serving an active sentence. State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999).
In support of his argument, Hunziker cites Casto, 22 Kan. App. 2d 152. In Casto, the defendant damaged the victim’s tractor and challenged the trial court’s computation of the amount of restitution. This court reversed the trial court’s restitution order because it failed to consider the value of the tractor after the repairs were made and gave two methods to determine the amount of restitution. It then stated that under either method, “the restitution amount should not exceed the reasonable market value of the tractor immediately before the damage.” 22 Kan. App. 2d at 154. Clearly, Casto addresses only the computation method for physical damage to property and is not about hmitations on the different types of damages a trial court may order as a part of restitution.
Hunziker failed to challenge below the trial court’s authority to order restitution for hired work, towing expenses, or mileage. As a result, he cannot now claim that the trial court lacked authority to do so. “An issue not presented to the trial court will not be considered for the first time on appeal. [Citation omitted.]” State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999).
Nevertheless, Hunziker did dispute the damages for the touch-up paint and lost work. The touch-up paint should not have been included in the restitution because it would have been a repair expense. Here, the trial court ordered Hunziker to pay the full amount of the fair market value for the backhoe. By including the touch-up paint expenses, the amount awarded for the damage to the backhoe exceeded its fair market value. Thus, the trial court erred in ordering restitution for the touch-up paint. Under Castro, the restitution order in the amount of $21.97 for the touch-up paint was improper.
Now we turn our attention to the issue of lost work. The restitution order for lost work to a business would be analogous to restitution orders for lost wages to an employee. Our Supreme Court has allowed such orders. See State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992) (defendant murdered ex-wife; as a result of the murder, victim’s son went to New York to live with his father; the court affirmed the trial court’s restitution orders that defendant pay the airfare expenses and the father’s lost wages to accompany the son to New York). As a result, the trial court properly ordered restitution for lost work or profits.
The only remaining damages that Hunziker challenged below were attorney fees and interest. On appeal, Hunziker presents no argument or authority regarding the order to pay interest. He provides arguments and authority only for the order to pay Van Loenen’s private attorney fees. As a result, we consider the order to pay interest to be abandoned. When a point is incidentally raised but not argued, it is deemed abandoned. Campbell v. City of Leavenworth, 28 Kan. App. 2d 120, 126, 13 P.3d 917 (2000), rev. denied 270 Kan. 897 (2001).
Hunziker maintains that he cannot be ordered to pay Van Loenen’s private attorney fees because attorney fees are allowed in only two instances: (1) when agreed to by the parties or (2) when authorized by statute. He cites the general principles for awarding attorney fees in civil cases as stated in United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 908 P.2d 1329 (1995). Kansas does not allow a trial court to award attorney fees unless authorized by statute or by agreement of the parties. Further, a trial court cannot order attorney fees under its equitable powers unless authorized by statute. 21 Kan. App. 2d at 905-06.
As the State points out, although Hunziker has cited authority for the general rule on attorney fees in civil cases, he has not cited any authority that applies to restitution orders in criminal cases. Moreover, the statutes for restitution in criminal cases mandate that the victim be compensated for actual losses.
Restitution orders as a condition of probation in criminal proceedings and a judgment for damages in a civil proceeding are separate and independent remedies under Kansas law. Applegate, 266 Kan. at 1078. K.S.A. 2001 Supp. 21-4610(d)(1) is a general statement of the legislature’s intent and does not specify the procedures for determining the amount of damages and payment that can be ordered as restitution, unlike other state and federal restitution statutes. 266 Kan. at 1077-78. It is clear, however,that the legislature intended the courts to broadly interpret K.S.A. 2001 Supp. 21-4610 regarding restitution orders. 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).
Under K.S.A. 2001 Supp. 21-4610(d)(1), the trial court can order as restitution the amount of reparation or restitution that reimburses the victim for the actual loss suffered or caused by the defendant’s crime. Applegate, 266 Kan. at 1078. Thus, the restitution order cannot require the defendant to pay an amount exceeding the amount of actual loss suffered by the victim. 266 Kan. at 1079. Kansas has not specifically addressed whether the victim’s attorney fees are such damages.
Our case law is clear that the amount of restitution determined by the trial court must have a causal link between the victim’s damages and the defendant’s unlawful conduct. Beechum, 251 Kan. at 202-03 (causal connection existed between defendant murdering his ex-wife and expenses father incurred to accompany victim’s son to New York to live with him); State v. Bausch, 29 Kan. App. 2d 649, 29 P.3d 989, rev. denied 272 Kan. 1420 (2001) (causal connection existed between defendant’s felony theft and the employer’s damages for the amount of the theft and the expenses for photocopying and auditing to determine the amount of loss); State v. Wells, 18 Kan. App. 2d 735, 736-37, 861 P.2d 828 (1993) (causal connection existed between victim’s medical expenses and defendant’s battery when he acted in concert with others); State v. Hargis, 5 Kan. App. 2d 608, 611, 620 P.2d 1181 (1980), rev. denied 229 Kan. 671 (1981) (causal connection existed between defendant’s unlawful use of a firearm and victim’s wounds when defendant’s gun discharged).
Restitution orders, however, do have limitations. “Not all tangential costs incurred as a result of a crime should be subject to restitution.” Beechum, 251 Kan. at 203. Other states utilizing a proximate causation analysis have determined a victim’s attorney fees are damages that a trial court can order a defendant to pay as restitution. See Com. v. Harner, 533 Pa. 14, 617 A.2d (1992) (The defendant was convicted of interference with custody of children. The father, who had legal custody of the children, incurred attorney fees as well as other expenses in regaining custody of the children. The appellate court affirmed the trial court’s decision that the defendant had to pay the father’s expenses, including his attorney fees, as restitution); People v. Lyon, 49 Cal. App. 4th 1521, 57 Cal. Rptr. 2d 415 (1996) (The defendant was convicted of embezzlement, grand theft, and unauthorized destruction of computer data. The trial court sentenced defendant to prison and ordered restitution, including the victim’s attorney fees. The appellate court determined that victim’s response to preserve defendant’s assets and recover a small portion of actual loss was a necessary and logical result of defendant’s criminal conduct and allowed attorney fees incurred for that purpose); People v. Wright, 18 P.3d 816 (Colo. App. 2000), cert. denied Feb. 20, 2001 (The defendant was convicted of defrauding a secured creditor. The victim had recovered the property in a replevin action. The trial court ordered the defendant to pay restitution for the victim’s attorney fees incurred in the replevin action. The appellate court concluded that the victim’s expenses in recovering his collateral were the direct result of defendant’s fraudulent act of selling the collateral; thus, the expenses were properly awarded as restitution); Arling v. State, 559 So. 2d 1274 (Fla. Dist. App. 1990) (The defendant was convicted of dealing in stolen property. The jeweliy store that bought the stolen property incurred attorney fees in an interpleader action filed by the sheriff to determine who was entitled to possession of the stolen property. The appellate court held it was reasonably foreseeable to a person who deals in stolen property that his or her acts may result in a third party filing litigation to determine the rightful owner of that property; as a result, it affirmed the trial court’s decision to causally link the victim’s at tomey fees to the criminal offense); State v. Christensen, 100 Wash. App. 534, 997 P.2d 1010 (2000) (The defendant, a former lawyer, was convicted of stealing from his clients. One victim recovered part of her loss by hiring an attorney and settling with defendant’s malpractice insurance carrier. Her attorney deducted his fees from the settlement. The trial court ordered the defendant to pay a restitution amount that, in effect, included the victim’s attorney fees. In affirming the trial court, the appellate court held that the victim’s attorney fees were a direct result of defendant’s offense).
In summary, the trial court may award attorney fees if there is a causal connection between the victim’s attorney fees and the defendant’s criminal conduct. Here, Van Loenen’s response to Hunziker’s criminal conduct was to seek legal advice on what he could recover as damages and how he could recover those damages. Van Loenen’s retaining of an attorney to determine and to document Van Loenen’s damages was a reasonable and logical result of Hunziker’s criminal conduct. As a result, the trial court properly ordered Hunziker to pay Van Loenen’s attorney fees as restitution in the criminal proceeding.
Next, Hunziker argues that under K.S.A. 2001 Supp. 21-4610(d)(1), a trial court cannot order a plan for restitution that was unworkable. He contends the monthly payment for restitution ordered by the trial court was unworkable because the trial court failed to consider his financial resources in determining the amount of restitution.
The trial court first inquired of Hunziker’s codefendant about his employment, child support, and the monthly payments he had been making to the court pending the restitution hearing. When the trial court then asked Hunziker how much he had been paying while reporting on probation, Hunziker responded $125 per month. His attorney then told the court that Hunziker understood he would be on probation until full restitution had been paid and that Hunziker had a child on the way. He also told the trial court that he advised Hunziker to make every effort to get the restitution paid within 1 year because if he did not, his probation would be extended.
It appears the trial court was beginning to ask Hunziker about his financial conditions as it had asked Hunziker s codefendant when Hunziker’s attorney advised the trial court he had informed Hunziker to pay any restitution orders within a year. Moreover, Hunziker did not argue to the trial court that its restitution plan was unworkable. When the defendant failed to challenge the restitution plan before tire trial court, the issue was not preserved for appeal. Wells, 18 Kan. App. 2d at 737. As a result, Hunziker’s argument fails.
Affirmed in part, reversed in part, and remanded with directions to reduce the restitution order by the amount of $21.97. | [
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Lewis, J.:
The defendant, Daniel James Oster, entered an Alford plea to a charge of attempted aggravated indecent liberties with a child. He was accordingly found guilty of that violation.
Defendant then filed a motion for probation. The motion was denied. Defendant was sentenced to 34 months of incarceration. The record indicates the trial court did not consider placement at Labette Correctional Conservation Camp (Labette) or a community intermediate sanction center (CISC). Defendant appealed his conviction and sentence.
In October 2001, pursuant to a joint motion of defendant and the State, we remanded the case to the trial court for the limited purpose of hearing and making a decision on a motion to modify or correct sentence. On remand, the matter of defendant’s sentence was again taken up by the trial court and resolved. Defendant renewed his motion for probation and reminded the trial court there needed to be more information on the record concerning placement at Labette. Defendant proposed that he be placed in the New Life Program in which he would receive 24-hour monitoring, as well as a sex offender class.
The trial court once again denied defendant’s request for probation. On this occasion, the trial judge stated for the record that he had considered placement at Labette and had concluded that since defendant was convicted of a person felony, placement at Labette would be “inappropriate.” The trial court specifically found that Labette was not the appropriate treatment for defendant given the facts of the case and reaffirmed its earlier sentence. After reaffirmation of the sentence, the matter is now back at this court on defendant’s appeal of his sentence.
The only issue raised by defendant is that the trial court erred in failing to consider placement at a CISC.
This appeal will be resolved on our interpretation of K.S.A. 2001 Supp. 21-4603d(g). As a result, we have a plenary standard of review. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
K.S.A. 2001 Supp. 21-4603d(g) holds that prior to imposing sentence for a defendant who falls within a border box, the trial court “shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendments thereto, or a community intermediate sanction center.”
As we read the statute, the trial court is required to consider placement in Labette, a conservation camp, or a CISC. The trial court explicitly considered Labette, and we conclude that, under the statute, it was not required to consider a CISC but that consideration of Labette in and of itself satisfied the language of the statute.
In addition, no one seems to be certain what a CISC is. No one seems to know whether one exists in the state of Kansas or, if it exists, where it is located. It seems to us that under these circumstances, it would be impossible for the trial court to consider placement in a CISC, whose very existence and location is unknown.
We hold that under the circumstances, consideration of the CISC was not required and that the trial court satisfied the statute in question by considering Labette.
Affirmed. | [
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PlERRON, J.;
Ulysses S. Wright, appeals his conviction for one count of robbery, a severity level 5 person felony, in violation of K.S.A. 21-3426. Wright argues that improper comments by the prosecutor denied him a fair trial and that his upward departure sentence should be reversed under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm the conviction and remand for resentencing.
John Cauley is an elderly man who knew Tahmeka Henson for many years prior to the robbery. He said he occasionally gave Henson money and that he referred to her as “Mickey.” Cauley testified he was mowing his lawn on the day of the robbery when Henson and Wright pulled up in, a red truck. Cauley said Henson asked to use the phone. Cauley got the phone and let Henson use it on the porch while he continued mowing. Cauley said that after awhile Wright got out of the truck and came on the porch with Henson.
After using the phone, Henson asked for a drink of water. Cauley escorted Henson inside while Wright stayed on the porch. Cauley said while they were in the kitchen, Wright came up behind him and bear-hugged him. Wright demanded $300. Cauley said he did not have any money. Wright told Henson to check Cauley s pockets where she found approximately $100. Cauley testified Wright threatened to kill him and then took him to the basement. After Wright could not find any more money, he told Cauley to stay in the basement until he was gone.
Cauley came out of the basement a few minutes later and telephoned Henson’s grandmother to tell her about the robbery. Cauley said he also told his neighbor, Clarence Garrison, about the robbery. It was not until later that day or the next day that he called the police to report the robbery. Cauley identified Henson at trial but said he had not seen her since the robbery and that “it look[ed] like it could be her.”
Garrison positively identified Wright and Henson as being at Cauley’s house on the day in question. Garrison saw Henson using the phone on the porch while Cauley was mowing his lawn. He testified that after some time, Wright got out of the truck and joined Henson on the porch. He said Cauley later went inside while the two remained on the porch. Garrison went inside his house and did not see anything else concerning the robbery. However, Garrison said Cauley later told him he had been robbed. Garrison picked Wright out of a photo lineup.
Both Wright and Henson took the stand. Henson said she had had a prostitution relationship with Cauley since she was 17 years old. Henson testified that on the day in question, she visited Cauley to borrow money. Cauley agreed to give her money in exchange for posing nude and for giving Cauley oral sex. Henson said Cauley refused to pay her for services and an argument ensued and ended up on Cauley’s front porch. After Cauley gave her the money, Henson said Cauley grabbed her buttocks. Henson testified that Wright came to the front porch and saw Cauley grab Henson’s buttocks, but he did not participate in the argument.
Wright testified he dropped Henson off at Cauley’s house so she could use the phone. He sat in the truck while Henson used the phone inside Cauley’s house. Wright said he waited 15 to 25 minutes and then decided to see what was going on. As he got out of the truck, he saw Henson and Cauley on the front porch. Wright said it looked like Henson and Cauley were arguing and then he saw Cauley grab Henson.
Wright testified he walked up on the porch and confronted Cauley. He asked Cauley, “[H]ow you gonna disrespect me by grabbing Tahmekah. on her butt? How you gonna disrespect me by grabbing my woman on her butt?” Wright said he turned to Henson and she said Cauley had propositioned her to have oral sex with him for money. Wright said he was upset, and he told Cauley that he guessed Cauley owed Henson money for grabbing her butt. Wright then returned to his truck. Wright denied entering Cauley s house or robbing him.
On cross-examination, Wright admitted writing a letter to Henson after they were arrested. Part of the letter stated: “Baby, no matter what you hear, I’m going to stick to our story of what went on that day. I wish we could start all over again. Boy have we messed up our lives.” Wright testified that by using the word “story,” he was describing the events of the day. He also said the comment about messing up their lives was in reference to the fact that he had found out that day that Henson had been exchanging sexual favors for money with Cauley and that had messed up their relationship.
The jury convicted both Wright and Henson of robbeiy. Wright’s classification of 5-F on the nondrug sentencing guidelines grid gave him a presumptive sentencing range of 41-47 months’ incarceration. The trial court granted the State’s motion for upward durational departure and sentenced Wright to 83 months’ incarceration.
Wright argues the State committed reversible error during closing arguments in commenting on the defendants’ willingness to He and by impermissibly bolstering the credibility of Cauley’s testimony. Neither of the alleged prejudicial comments were objected to at trial.
Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial. State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999). The court in State v. Pabst, 268 Kan. 501, Syl. ¶ 3, 996 P.2d 321 (2000), set forth the following two-part test:
“The analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process. First, an appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, an appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.”
Wright complains of the following comments by the State during closing argument:
“But obviously there is something at stake for them. Is that enough to make them he? Is it enough that they would he for themselves? Is Tahmekah Henson gonna he to keep Tahmekah Henson out of trouble? And is Ulysses Wright gonna he to keep Ulysses Wright out of trouble?
“But, better yet, you’ll see instruction — or State’s Exhibit No. 2 or 3, it’s a love letter. Mr. Wright identified it as a letter, but it’s filled with, I love you, I hope you’re doing fine. I love you with ah that is in me. You’ll have this back there to read. It’s a love letter. They were fiancees. They were getting ready to be married. And what do you do when you go out in trouble — go out and get in trouble? Tahmekah Henson’s gonna he for herself and she’s gonna he for Ulysses Wright. Ulysses Wright’s gonna he for himself and he’s gonna he for Tahmekah. And they thought up this stoiy.”
Wright also complains that when defense counsel commented: “Maybe [Cauley’s] memory’s gone bad, maybe he’s having problems remembering the facts,” the State stated in rebuttal, “Well, it didn’t sound to me like it’s faded.”
Wright argues the State’s comments satisfied both elements of the prosecutorial misconduct test. He contends it was clearly improper for the State to tell the jury the defendants were “gonna he” and that they “thought up this story.” He also contends the State improperly bolstered Cauley’s testimony by giving her personal opinion of Cauley’s testimony. Wright argues both comments were severely prejudicial and denied him a fair trial. He states the crux of this case was about credibility and the State’s comments “tainted the critical jury determination upon which the entire case balanced.” He contends the State’s personal impression of Cauley’s memory bolstered his testimony, while the allegations of lying denigrated his testimony. He suggests the jurors could have returned a not guilty verdict absent the State’s comments since they reasonably could have doubted Cauley’s memory and veracity.
The State concedes the prosecutor’s comments should not have been made. However, in citing State v. Scott, 271 Kan. 103, 21 P.3d 516 (2001), the State argues there has been nothing to suggest an “ill will” on the part of the State or that the comments were so gross and flagrant to prejudice the jury against Wright and deny him a fair trial.
Credibility was the key issue in this case. The court in Pabst stated: “When a case develops that turns on which of two conflicting stories is true, it maybe reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.” 268 Kan. at 507.
Under the first prong of the Pabst test, we are to determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing tire evidence. 268 Kan. 501, Syl. ¶ 3. No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. State v. Bradford, 219 Kan. 336, Syl. ¶ 4, 548 P.2d 812 (1976). When the prosecutor calls the defendant a liar or vouches for the credibility of a witness, such comment is clearly outside matters in evidence. Pabst, 268 Kan. at 506. These types of comments are improper and violative of the Kansas Rules of Professional Conduct and the ABA standards for prosecutors. See KPRC 3.4 (2001 Kan. Ct. R. Annot. 406); ABA Standard 3-5.8(e). The State has conceded this point and further comment is unnecessary.
Not every trial error constitutes reversible error. In examining tire second prong of the prosecutorial misconduct test, the court in Scott cited the following analysis in determining reversible error:
“(1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jury. State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997). We must also consider whether the comment was sanctioned by the trial court. See Pabst, 268 Kan. at 509 (considering trial court’s response to misconduct of prosecutor after objection by defendant); State v. Zamora, 247 Kan. 684, 691, 803 P.2d 568 (1990) (considering whether failure to sustain objection and admonish jury prejudiced the defendant’s right to a fair trial); State v. Salter, 2 Kan. App. 2d 635, 637-39, 586 P.2d 62 (1978) (reversing conviction and ordering new trial where trial court stated that it was a ‘fair conclusion’ when prosecutor stated that witness had lied).” 271 Kan. at 115.
Wright does not cite any cases for factual similarity. Rather, he makes the general statement recognizing the issue hinges on our subjective reaction to the prosecutor s improper comments. Wright maintains no one can say with certainty how the jurors would have voted absent the prosecutorial misconduct.
We have examined caselaw on the prejudicial effect of prosecutorial misconduct in closing argument. The present case clearly does not rise to the level of misconduct found in Pabst, for example, where the prosecutor called the defendant a liar at least 11 times and attempted to bolster the State’s witnesses while also attempting to alter the burden of proof, or as found in State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997), where the prosecutor repeatedly called both the defendant and his defense counsel liars, even after the trial court sustained defense counsel’s objection.
The comments in the case at bar are similar to those made by the prosecutors in State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994), and State v. Eastridge, 20 Kan. App. 2d 973, 894 P.2d 243 (1995). The comments complained of by Wright do not meet the three factors set forth in Scott. Compared to other cases where the defendant is intentionally called a liar or defense counsel’s integrity is questioned, there is no evidence of ill will on the part of the prosecutor in the present case. Additionally, the prosecutor’s improper remarks were not so gross and flagrant as to prejudice the jury against the accused and deny him a fair trial. See Whitaker, 255 Kan. at 134.
After reviewing the record in its entirety and the relevant law, we find the State’s comments had litde, if any, likelihood of having changed the result of the trial, and we are able to hold such a belief beyond a reasonable doubt. Again, though, it cannot be overstated that a prosecutor’s zealousness in arguing a case to the jury should not be given too loose a rein. Drawing reasonable inferences from the evidence is critical to the effective prosecution of a case, but restraint is equally necessary to not inappropriately denigrate op posing counsel or inject personal evaluations of the honesty of witnesses.
Wright also argues his upward departure sentence should be reversed based on the United States Supreme Court’s decision in Apprendi, 530 U.S. 466. We agree based on our Supreme Court’s recent decision in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
The trial court granted the State’s motion for upward durational departure, stating Wright and Henson took advantage of Cauley, an 89-year-old man, that Wright put his hands on and threatened Cauley, and that Wright violated Cauley’s personal safety. The trial court’s findings of fact and reasons justifying a departure are supported by evidence in the record and constitute substantial and compelling reasons for departure as a matter of law. See K.S.A. 21-4721(d). However, Gould, relying on Apprendi, stated:
“The notice and jury trial guarantees of the Sixth Amendment and the Due Process Clause of the Fourteendr Amendment require that a factual determination resulting in an increase in the maximum prison sentence for an offense beyond die sentence established in the appropriate grid box under K.S.A. 2000 Supp. 21-4704 be made by a jury beyond a reasonable doubt.” 271 Kan. 394, Syl. ¶ 2.
The Gould court found the Kansas Sentencing Guidelines scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, to be unconstitutional on its face. 271 Kan. 103, Syl. ¶ 3. The holding in Gould applies to this case. See State v. Seibel, 29 Kan. App. 2d. 489, 28 P.3d 445 (2001). Therefore, Wright must be resentenced.
Conviction affirmed, sentence vacated, and case remanded for resentencing. | [
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Pierron, J.:
The State appeals the district court’s dismissal of its case against Patrick Clopton. The court granted Clopton’s motion to dismiss after holding that the State’s delay in prosecuting the case violated Clopton’s constitutional rights to due process. We affirm.
The facts are for, the most part, not disputed. On November 5, 1999, Junction City police officers executed a search warrant at a residence. Inside, the officers found Clopton and Trameika Moore asleep in the same bed. Officers found various drug items and paraphernalia. Clopton and Moore were arrested and charged with possession of cocaine with intent to sell within 1000 feet of a school, possession of marijuana, possession of drug paraphernalia, criminal acquisition of drug proceeds, and no drug tax stamp. Clopton posted a $25,000 surety bond. In February 2000, Clopton appeared for arraignment and pied not guilty. The district court set the matter for pretrial conference on March 13, 2000, and for trial on March 31, 2000.
Over the next months, the dates for the pretrial motion hearing and trial were continued many times. The State requested the last continuance and the district court set the suppression hearing for May 24, 2000. On May 24, 2000, the State indicated it had issued subpoenas on May 9, 2000, to two officers who did not appear at the hearing because they were in training in Wichita. The State also announced that KBI lab testing was not completed; thus, it had no forensic analysis of the suspected controlled substances. Consequently, the State dismissed the case without prejudice. The State does not contest the fact that the lab results were completed shortly thereafter on May 31, 2000.
It was not until January 5,2001, that the State refiled the original charges against Clopton, including an additional count of possession of drug paraphernalia. The district court conducted the preliminary hearing on March 8, 2001, and bound Clopton over for arraignment and trial on all charges. At arraignment, Clopton stood mute as to the charges, and the court entered pleas of not guilty on his behalf. The court set the jury trial for May 30,2001. Because of additional continuances, the trial was set for July 12, 2001.
On June 25, 2001, Clopton filed a motion to suppress and a motion to dismiss. He alleged the State’s action of dismissing and then refiling the same charges was both a violation of his constitutional right to a speedy trial and his rights under the Due Process Clause of the United States Constitution. The court granted the motion to dismiss based on Clopton’s due process claim. The court ruled:
“[The] Court will find that the . . . State has . . . failed to convince the Court that it . . . dismissed . . . the first case, for any other reason but to gain a tactical advantage over the defendant. [The] dismissal, and subsequential refiling, resulted in . . . prejudice to the defendant in that he had to post additional bonds, that he has lost witnesses . . . which will . . . seriously impede his ability [to] defend this case. And that as such, his . . . due process rights have been violated under the Constitution of the United States of America. Will dismiss the case.”
Clopton correctly points out that the State does not address the basis for the district court’s granting of the motion to dismiss. Contraiy to the State’s brief, the trial court did not grant Clopton’s motion based on a violation of his constitutional or statutory right to a speedy trial. Rather, the court specifically found the State violated Clopton’s due process rights. The State’s examination of the four-part test for violations of the constitutional right to a speedy trial found in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), is for the most part irrelevant. However, the State’s discussion of the prejudice prong of the Barker test applies equally in a discussion of a due process violation.
The United States Supreme Court in United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), recognized that a relationship existed outside the Sixth Amendment to the United States Constitution between the requirements of due process and inordinate preaccusation delay. The Kansas Supreme Court, in State v. Royal, 217 Kan. 197, 201, 535 P.2d 413 (1975), explained:
“The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay, where it is shown that actual prejudice resulted to die defendant in his ability to conduct his defense and that the government intentionally delayed prosecution to gain a tactical advantage over him.”
The Royal court crafted its test in the language of the Marion decision by adopting the following: “The rights of a defendant under the due process clause of the Fifth Amendment are not violated by pre-accusation delay in the absence of a showing that actual prejudice resulted from the delay and that the delay was intentionally designed to gain tactical advantage over the defendant or to harass him.” 217 Kan. 197, Syl. ¶ 2. See also United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977).
In the case at bar, the district court held that Clopton had met both prongs of the Royal test. The court found the State had failed to demonstrate that it dismissed the first case against Clopton for any other reason but to gain a tactical advantage. The court also found the State’s actions prejudiced Clopton in that he had to post additional bonds and lost a witness which seriously impeded his ability to defend his case. The court concluded that Clopton’s due process rights under the United States Constitution had been violated.
We review this case to determine whether the district court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The district court’s findings under the second prong in Boyal are supported by substantial competent evidence. There is no doubt the State dismissed its case against Clopton for tactical reasons. Two of the police officers involved in the case were unable to attend the hearing on May 24, 2000, and in all likelihood the court probably would have granted Clopton’s motion to suppress without the officers ’ testimony. Also, it is undisputed the State did not have the results from the KBI forensic testing of the alleged drug substances discovered during the search. On May 31, 2000, 7 days after the State dismissed its case against Clopton, the KBI completed its testing, yet the State waited 7 months to refile charges against Clopton. The court found it was this delay and refiling that prejudiced Clopton.
Clopton presented evidence demonstrating actual prejudice in the State’s dismissal of his case and the 7-month delay in refiling. First, Clopton was required to post an additional bond after the refiling of the case. Second, his defense was hampered by the loss of a key witness. The State does not contest that Moore, Clopton’s girlfriend and codefendant, had pled guilty to a severity level 3 drug felony under the facts in this case and had been granted probation and allowed to move to Texas. Clopton presented evidence that by the time this case came before the court again, Moore’s whereabouts were unknown and there was a warrant for her arrest. Clopton was unable to call Moore as a witness in his trial. Apparently, she was going to exonerate Clopton.
We find the district court’s findings of fact under the two-part Boyal test are supported by substantial competent evidence and are sufficient to support the finding of a due process violation.
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Knudson, J.:
Mabel Littrice appeals from the district court’s denial of her motion filed under K.S.A. 60-1507, alleging ineffective assistance of trial counsel. We remand this matter to the district court for findings of fact and conclusions of law as required under Supreme Court Rule 183(j) (2001 Kan. Ct. R. Annot. 210). See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000).
After hearing the evidence in the 60-1507 proceeding, the district court without stating findings of fact or conclusions of law held no evidence had been presented upon which relief could be granted. This lack of findings and conclusions unreasonably impedes appellate review.
The Underlying Criminal Action
Littrice was charged with possession of cocaine with intent to sell after having prior convictions, a drug severity level 1 felony. Littrice’s attorney, Carol Hall, filed a pretrial motion to suppress evidence seized under a search warrant. Based on the averments in the motion together with an offer of proof, the district court permitted a challenge to the allegations within the affidavit that had been presented to support the issuance of the search warrant. See Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
The affidavit for search warrant stated, in material part:
“This affidavit and application is based on the following facts: On 06-02-94 [wjhile SIE 940006 was purchasing crack cocaine from Curtis Littrice at 713 S. 3rd [S]treet Curtis advised the Cl that he was running low on crack cocaine until Mabel Littrice finishes cooking up batch at home which is the above address. The Leavenworth County Drug Task Force has received information in the past from other reliable informants that Mabel Littrice is the main crack cocaine cooker in the Leavenworth area. The Leavenworth County Drug Task Force has a taped cassette recording of Curtis Littrice advising SIE 940006 that Mabel Littrice is cooking crack cocaine at this time. Information obtained in the past has been that Mabel cooks the crack around the clock on a regular basis. SIE 940006 is willing to testify in court to the above facts. Cl # 444 was in the address listed above with in [sic] the past 72 hrs and observed approx: 1.5 ounces of cocaine.”
Littrice’s motion claimed she had listened to the tape recorded conversation between Curtis and informant SIE 940006. She alleged the facts in the affidavit for the search warrant were false because the tape recorded conversation did not include either of the two statements allegedly made by Curtis.
Hall represented Littrice at the suppression hearing. Derek Burleson, a detective with the Leavenworth Police Department and assigned to the Leavenworth County Drug Task Force, testified at the hearing. Steven Traglio, a Leavenworth police officer, who was assigned to the Drug Enforcement Administration (DEA) as a task force officer, also testified. The conversation between Curtis and the informant was recorded and monitored by Traglio, and the tape had been transcribed. Neither the tape nor the transcript of the conversation is in the record on appeal, even though the transcript was admitted into evidence.
Burleson claimed the statement in the affidavit that Curtis advised the informant “Littrice is cooking crack cocaine at this time” was not quoting Curtis but referring to statements made by the informant to Traglio. Burleson testified the informant heard Curtis use the phrase “ ‘mom’s cooking’ ” and explained to Traglio that “ ‘mom’s cooking’ ” meant Littrice was cooking crack cocaine. Burleson claimed this explanation was correct when “ ‘mom’s cooking’ ” was taken in context with other statements on the tape and was consistent with Burleson’s experience.
During cross-examination, Burleson admitted the recording did not reflect Curtis telling the informant “he was running low on crack cocaine until Mabel Littrice finished cooking up a batch at home.” Rather, the transcript showed the informant was the one who said “mom cooks for me.” In response, Curtis said: “[W]efl you let her know you are coming. You call her, you don’t call me.” Traglio told Burleson that the informant stated Curtis said he was running low on crack cocaine until Littrice finished cooking up a batch at home. His affidavit was based upon the informant’s statements to Traglio after she talked with Curtis. Burleson listened to the tape recording after typing the affidavit.
Burleson admitted informant 444, which is a Leavenworth County Drug Task informant number, and informant 940006, which is a DEA informant number, is the same person. Burleson did not identify informants 444 and 940006 as the same person in the affidavit because the Drug Task Force wanted the identity of informant 444 kept confidential so she could work other cases for them. If the affidavit identified informants 444 and 940006 as the same person, then the identity of informant 444 would have been revealed when she testified in the DEA cases against Curtis and the other persons from whom she had purchased drugs for the DEA. Burleson stated the Drug Task Force assigned only one number to an informant, and an informant was useless after the informant’s identity was known.
Burleson stated he had referred to this person as informant 444 on the affidavit because it was the Drug Task Force that sent her to Littrice’s house to corroborate the information that was developed when she worked with the DEA as informant 940006. The Drug Task Force will not use a person as an informant until the person has signed a contract and been assigned one of its numbers. Burleson claimed he used the two informant numbers on the affidavit to show the information was received by two separate agencies, not to mislead the court.
Traglio testified he heard the conversation between the informant and Curtis as the informant bought drugs from Curtis. Traglio stated the conversation implicated Littrice in drug activities. Traglio admitted the transcript showed that the informant told Curtis she should have something cooked for her. Curtis replied: “ ‘What do you mean I should have something cooked for you?’ ” The informant said, “ ‘Mom cooks for me.’ ” Curtis said, “ “Well you let her know that you’re coming. You call her, don’t call me.’ ” After the drug transaction was completed, Traglio debriefed the informant, who confirmed Littrice was the person who was referred to as “mom.” At the debriefing, the informant also told Traglio that Curtis gets his crack cocaine from his mother, Mabel Littrice. Traglio admitted this information was not on the tape. Traglio stated he told Burleson about the informant’s statements to him.
Several weeks after the suppression hearing but before a decision by the district court, Michael Jones was appointed as Littrice’s new trial counsel. Jones argued the affidavit statement that a tape recording existed in which Curtis advised the informant that Lit-trice was cooking crack cocaine at that time in the affidavit was false because the evidence at the suppression hearing proved no such statement was made by Curtis. Jones also argued the reference to two informant numbers was misleading because it appeared there were two informants rather than one. Without stating factual findings or conclusions, the district court denied Littrice’s motion to suppress.
At trial, the State presented numerous items that were seized as a result of the search warrant, including six bags of off-white rock substances, which tested positive for cocaine; several items which were considered drug paraphernalia; a total of $2,178 in cash; and $87 in food stamps. Jones did not object to the admission of the seized items based upon the denial of his suppression motion. Thus, the district court admitted all of them.
Littrice testified three other persons resided at her house and those persons slept in sleeping bags in the living room. Littrice also allowed other family members and transients to stay in her home from time to time. Littrice denied ownership of some of the seized paraphernalia items.
A jury convicted Littrice of possession of cocaine with intent to sell, and the district court sentenced her to 150 months’ imprisonment.
In her direct appeal, Littrice argued the district court erred in denying her motion to suppress the evidence. Because Littrice’s trial counsel failed to object to the evidence when it was offered at trial, this court refused to consider the issue. State v. Littrice, 23 Kan. App. 2d 1016, 1017-18, 940 P.2d 70, rev. denied 262 Kan. 966 (1997). Littrice’s conviction was affirmed.
K.S.A. 60-1507 Motion
Littrice’s motion alleges trial counsel was ineffective because he (1) failed to object to the admission of the seized items based on the suppression motion, thereby failing to preserve the issue for appeal and (2) failed to subpoena witnesses to support her theory of the case regarding nonexclusive possession of the drugs. To support her latter allegation, Littrice attached affidavits from Shirley Workman and Kenneth Bateman. Littrice requested an evidentiary hearing regarding the latter allegation because these facts did not appear in the record. Her motion was set for an evidentiary hearing where she appeared by counsel. The judge who presided at Lit-trice’s suppression hearing and trial also presided at the hearing on her 60-1507 motion.
At the 60-1507 hearing, Bateman testified he owned the home where Littrice resided at the time of her arrest. Bateman stated he went to the house to collect rent. He indicated Littrice often had other people staying in the house, and he had “to step over the bodies that were sleeping on the floor in the front room.” Bateman claimed he was not contacted by Littrice’s trial counsel to testify. Bateman’s testimony and affidavit were consistent.
Earnest C. Littrice, Jr., Littrice’s son, testified he had contact with Littrice about four to five times per week prior to her arrest. Earnest recalled two nephews and his former sister-in-law and her children resided with Littrice during June 1994. He was unable to recall the names of other friends and relatives who stayed a night or two with Littrice when they needed a place to stay and eat. Earnest was not contacted by Littrice’s trial counsel.
Because Workman was unavailable as a witness, the parties stipulated to Workman’s affidavit. Workman averred she was Littrice’s neighbor at the time of the incident and Littrice’s trial attorney never contacted her about testifying at Littrice’s trial. Workman also stated: “Littrice often had other people coming and going in and out of her home.”
Without stating its findings of fact or conclusions of law, the district court held there was no ground upon which relief could be granted and denied Littrice’s motion.
A. Failure to Object to the Admission of Evidence
The law is clear that a party must object to the admission of evidence in order to preserve the issue for appeal. See K.S.A. 60-404 and State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999) (a party must object to the admission of evidence at trial and state the ground of the objection when a pretrial motion to suppress has been denied in order to preserve the issue for appeal). Without a timely and specific objection, the issue is procedurally barred from an appellate decision on the merits.
In her direct appeal and in this collateral proceeding, Littrice has consistently claimed two statements in the affidavit were not included in the tape recording of the conversation between Curtis and the informant: (1) Curtis told the informant that he was running low on crack cocaine until Littrice finished cooking up a batch at home, and (2) Curtis told the informant that Littrice was cooking crack cocaine at this time. However, the affidavit specifically referred to only the last statement being on a tape recorded conversation between Curtis and the informant.
Contrary to the clear language in the affidavit, Burleson claimed the second challenged statement was not quoting Curtis but was referring to the informant’s statements to Traglio after she had the conversation with Curtis. Particularly troublesome is the fact that the clear language in the affidavit indicates this statement was on the tape recording, but Burleson admitted he did not listen to the tape recording until after he typed the affidavit. Thus, once he listened to the tape recording, it should have been clear this statement was not on the recording. Yet, he did not change the specific language in the affidavit. This inaction could constitute reckless disregard for the truth of the statement.
Equally troubling, the affidavit does not indicate the first challenged statement by Curtis that he was running low on crack co caine until Littrice cooked a batch was on the recording. Here again, this may indicate a recldess disregard or an attempt to mislead the reviewing magistrate.
B. Failure to Subpoena Witnesses
As we have already noted, at the 60-1507 hearing, Littrice called various witnesses to testify and presented an evidentiary affidavit to the district court to establish her claim of ineffective assistance of trial counsel. Once again, appellate review has been stymied by the lack of findings and conclusions regarding the credibility of witnesses and the evidence presented.
Conclusion
Without findings and conclusions regarding the Franks hearing in the underlying criminal case or from the 60-1507 proceeding, we are unable to engage in meaningful appellate review. Accordingly, this proceeding is remanded to the district court for written findings of fact and conclusions of law as required by Supreme Court Rule 183(j). We request that the district court expedite this matter. We will retain jurisdiction to consider the merits of Lit-trice’s appeal upon receipt of the district court’s judgment consistent with this opinion.
Remanded with directions. | [
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Marquardt, J.:
Midwest Gas Users’ Association (MGUA) appeals the order of the Kansas Corporation Commission (KCC) to distribute refunds of unlawfully collected ad valorem taxes to low-income residential customers. We affirm.
This court previously found that the KCC did not err when it ordered that distribution of the ad valorem tax refunds should be distributed to low-income individuals. See Farmland Industries, Inc. v. Kansas Corporation Comm’n, 29 Kan. App. 2d 1031, 40 P.3d 313 (2001) (opinion written to include Kansas Industrial Consumers v. Kansas Corporation Comm’n, No. 87,500). MGUA is essentially using this appeal to request reconsideration of the order in the Farmland and Kansas Industrial Consumers cases. We incorporate our November 21, 2001, order in that opinion by reference, and in accordance with Supreme Court Rule 7.041 (2001 Kan. Ct. R. Annot. 48), affirm the KCC’s order authorizing distribution of ad valorem tax refunds to the designated low-income customers.
In addition to the issues raised in the Farmland and Kansas Industrial Consumers cases, MGUA claims that the notice in this case of the KCC proceedings was “inadequate to justify taking of the ad valorem taxes.”
MGUA is attempting to argue that the rights of consumers who are not parties to this appeal were violated because they received notice of the proposed changes in the distribution plan through a billing insert. MGUA argues that the basic elements of due process, namely, notice and an opportunity to be heard, were not met. See State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). Without notice, due process is denied and the judgment rendered is void. 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. In re H.C., 23 Kan. App. 2d 955, 958, 939 P.2d 937 (1997). Only those who claim infringement of their constitutional rights have standing to raise the issue. See 16 Am. Jur. 2d, Constitutional Law §139, p. 543. MGUA does not have standing to raise this issue.
MGUA was given adequate notice of the KCC hearings. The hearing notice provided MGUA with the time and place of the hearing. MGUA’s argument to the contrary is without merit.
MGUA also argues that the KCC’s distribution order is unreasonable and not supported by the record. In essence, MGUA is asking this court to reweigh the evidence, which we will not do. An appellate court may not substitute its judgment for that of the administrative agency. So long as the record contains competent evidence in support of the decision of the KCC, its decision is reasonable and must be upheld by this court. The KCC is vested with wide discretion, and its findings have a presumption of validity on review. Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 165, 769 P.2d 1 (1989).
K.S.A. 2000 Supp. 66-118b limits judicial review of a KCC order to determine whether it is lawful or reasonable. In this case, the order was based on a need by low-income persons and in consideration of the cold winter combined with high gas prices. The KCC order for distribution of the ad valorem taxes is not unreasonable.
On December 17, 1999, the KCC ordered that whenever possible, an attempt should be made to distribute the refunds to the customers who paid the taxes. The KCC order stated that any party could file a petition for reconsideration within 15 days of the date of the order. However, it does not appear that any party to this litigation submitted a petition for reconsideration.
During oral argument before this court, MGUA claimed that the KCC’s December 17, 1999, order was a final order and not subject to modification. MGUA failed to preserve this issue for appeal. MGUA did not raise this issue either in its petition for judicial review to the trial court or in its petition for reconsideration to the KCC. See K.S.A. 2000 Supp. 66-118b.
Affirmed. | [
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Knudson, J.:
Oscar J. Hall, Jr., appeals the revocation of his felony probation and the district court’s order that the underlying sentence of 30 months is to be served. Hall raises two issues on appeal: (1) Did the district court err in concluding it had no jurisdiction to modify the term of imprisonment, and (2) did the district court abuse its discretion in denying a continuance of the revocation hearing?
We conclude the district court did have jurisdiction to modify the sentence. Our decision renders moot the abuse of discretion issue. We remand to the district court for consideration of its sentencing discretion under K.S.A. 2001 Supp. 22-3716(b).
In 1997, Hall was convicted of possession of cocaine, and the district court imposed a dispositional departure sentence of 30 months. Hall was placed on probation for 36 months. On March 22, 2001, Hall’s probation was revoked. The district court noted Hall would be required to serve the 30-month sentence because:
“I don’t have a third alternative. I can’t send him to prison to do say, 12 or 14 months of time and then bring him back out. The law doesn’t permit modification of sentence. He has received the criminal sentence back in 1997, that’s fixed, that’s unchangeable. I can’t change it to 29 [months], I can’t increase it to 31 months. We are stuck with it . . . .” (Emphasis added.)
K.S.A. 2001 Supp. 22-3716(b) states, in material part, that upon a finding the defendant has violated the terms of probation, the district court “may require the defendant to serve the sentence imposed, or any lesser sentence.” (Emphasis added.) This apparent grant of discretion to modify a sentence previously imposed appears to be inconsistent with provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., which do not provide for sentence modification. See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996); State v. Smith, 26 Kan. App. 2d 272, 273-74, 981 P.2d 1182, rev. denied 268 Kan. 854 (1999).
This issue was specifically addressed by the Kansas Supreme Court in State v. McGill, 271 Kan. 150, 22 P.3d 597 (2001). The court held: “Upon revocation of probation, K.S.A. 2000 Supp. 22-3716(b) grants jurisdiction to a sentencing court to impose the underlying sentence or any lesser sentence.” 271 Kan. 150, Syl. Smith and Miller were distinguished as cases wherein probation was not granted and the district court “attempted] to modify sentences after the sentences were imposed and incarceration was to begin.” 271 Kan. at 153. In short, K.S.A. 2001 Supp. 22-3716(b) was not implicated in Miller or Smith.
There remains the question as to whether McGill is materially distinguishable from the case on appeal. We note McGill received an upward durational departure sentence, which was removed after the probation revocation proceeding. The district court then imposed a presumptive sentence under the sentencing guidelines. 271 Kan. at 151. Thus, the distinguishing circumstance — McGill’s “lesser sentence” — was within the presumptive guidelines for the crime committed, whereas any downward modification of Hall’s sentence would be less than a presumptive sentence under the guidelines.
In McGill, Chief Justice McFarland said:
“K.S.A. 22-3716 was significantly amended during the 2000 legislative session. L. 2000, ch. 182, § 8. The parties do not contend that the amendments apply in this case. However, the language of the emphasized portion of the statute [stating the court “may require the defendant to serve the sentence imposed, or any lesser sentence”] predates the enactment of the KSGA and has remained unchanged despite the significant amendments occurring in 2000. See K.S.A. Supp. 2000 22-3716(b).
“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Vega-Fuentes, 264 10, 14, 955 P.2d 1235 (1998).
“Under the plain language of K.S.A. 2000 Supp. 22-3716(b), the district court, upon revoking probation, may impose a lesser sentence.” 271 Kan. at 154.
We believe McGill means what it states. There is no indication the broad holding of the Supreme Court would limit the district court’s discretion to imposition of a presumptive guidelines sentence. Accordingly, we hold the district court erred in concluding it was without jurisdiction to modify Hall’s sentence upon revoking probation. We remand to the district court for further consideration as to whether Hall’s sentence should be reduced.
Our holding makes moot the abuse of discretion issue arising out of the district court’s refusal to grant a continuance.
Remanded with directions. | [
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Beier, J.:
Steven C. Wiest appeals the district court’s dismissal of his petition for judicial review of his termination from the tenured faculty of Kansas State University.
Wiest was notified that his employment would be terminated after the 1999-2000 academic year because of three unsatisfactory annual evaluations. He appealed the decision to the university provost, and, when unsuccessful, was given 3 days of hearings in October 2000 by the faculty grievance board. The board recom mended to University President Jon Wefald that the dismissal be upheld.
On November 17, 2000, the president sent Wiest a letter by certified mail, denying his appeal and upholding the dismissal. Wiest received the letter on November 21, 2000. The letter was not copied to Wiest’s counsel, and it did not identify any university official designated to receive service of Wiest’s appeal from the president’s decision.
On December 20,2000, — 33 days after the president’s letter was written and sent and 29 days after Wiest received it — Wiest filed his petition for judicial review of the “Agency’s action, which was taken on November 17, 2000, wherein Jon Wefald, in his capacity as the Chief Executive Officer of the Agency, upheld Petitioner’s dismissal.”
Respondents State of Kansas, the Kansas Board of Regents, and Kansas State University filed a motion to dismiss for lack of jurisdiction because the petition was not filed within 30 days of the president’s decision, which they classified as an “agency action other than a rule and regulation or final order” under K.S.A. 77-613(d).
Wiest raised several arguments in response:
• If his appeal time began running before he received notice of the decision, his due process rights were violated;
• the president’s letter was a “final order” governed by K.S.A. 77-602(b) and (e) rather than an “agency action other than a rule and regulation or final order” under K.S.A. 77-613(d);
• the time period for appeal had not begun to run because the letter failed to inform Wiest of his appeal rights in compliance with K.S.A. 77-613(e);
• K.S.A. 77-613(d)(2) expressly provides for an extension of appeal time for any period during which Wiest lacked notice of the president’s decision; and/or
• the 3-day mail rule under K.S.A. 77-613(e) made Wiest’s petition timely.
After a hearing, the district court found the president’s letter of November 17 was a final agency “action,” and petitioner failed to comply with the clear and unambiguous language of K.S.A. 77-613(d) by not filing his petition for judicial review within 30 days.
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute. K.S.A. 77-603(a). “When an administrative agency action is appealed to the district court pursuant to KJRA and then appealed from the district court to this court, we review the agency’s decision as though the appeal had been made directly to us and we are subject to the same limitations of review as the district court.” Pitts v. Kansas Dental Bd., 267 Kan. 775, 776, 987 P.2d 348 (1999). In addition, issues of jurisdiction and statutory interpretation raise questions of law subject to unlimited review. See State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999) (jurisdiction); Wasson v. United Dominion Industries, 266 Kan. 1012, 1018, 974 P.2d 578 (1999) (statutory interpretation).
K.S.A. 77-613 provides in relevant part:
“Subject to other requirements of this act or of another statute:
“(b) If reconsideration has not been requested and is not a prerequisite for seeking judicial review, a petition for judicial review of a final order shall be filed within 30 days after service of the order.
"(d) A petition for judicial review of agency action other than a rule and regulation or final order shall be filed within 30 days after the agency action, but the time is extended:
(1) During the pendency of the petitioner’s timely attempts to exhaust administrative remedies; and
(2) during any period that the petitioner did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered, that the agency had taken the action or that the agency action had a sufficient effect to confer standing upon the petitioner to obtain judicial review under this act.
“(e) Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses .... Service by mail is complete upon mailing. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of an order, pleading or other matter and it is served by mail, three days shall be added to die prescribed period. Unless reconsideration is a prerequisite for seeking judicial review, a final order shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.”
The dispositive issue in this case is whether the president’s November 17 letter was a “final order” or an “agency action other than a rule and regulation or final order/’ If the letter was a “final order,” then petitioner timely filed his petition within 33 days of service of the letter (30 days under K.S.A. 77-613[b] plus 3 days for service by mail under K.S.A. 77-613[e]). If the letter qualifies as an “agency action other than a rule and regulation or final order,” then Wiest’s petition might not have been filed within 30 days of the decision itself, as required by K.S.A. 77-613(d).
Neither “final order” nor “agency action other than a rule and regulation or final order” is explicitly defined in the KJRA. However, “agency action” is defined as: “(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” K.S.A. 77-602(b). And an “order” is “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). Under the plain language of these provisions, an “order” is a particular type of “action,” i.e., agency “orders” clearly compose a subset of possible agency “actions.”
Wiest also directs us to three Kansas Supreme Court decisions to support his characterization of the president’s November 17 letter as a “final order.”
In the first of these cases, Reifschneider v. Kansas State Lottery, 266 Kan. 338, 969 P.2d 875 (1998), the plaintiffs had purchased a winning lottery ticket, but they received only one-half of the award because a second winning ticket had been sold. When the second winning ticket was not presented for a year, the plaintiffs filed a claim seeking the unclaimed half of the prize. The Executive Director of the Kansas Lottery informed plaintiffs’ counsel by letter that the Lottery denied plaintiffs’ claim. Plaintiffs then filed a petition in district court for breach of contract. The district court dismissed the case because the plaintiffs’ sole avenue of relief was the KJRA. Furthermore, even if the petition was construed as filed pursuant to the KJRA, it would have been untimely under K.S.A. 77-613(b).
On appeal, the Kansas Supreme Court first held the district court properly dismissed the case because it was not filed pursuant to the KJRA. 266 Kan. at 340-41. But the court also addressed the issue of whether the denial letter qualified as a “final order.” The justices observed that a “final order” under the KJRA is characterized and defined as a “final agency action,” which in turn is defined under K.S.A. 77-607(b)(1) and (2):
“ ‘(1) “Final agency action” means the whole or a part of any agency action other than nonfinal agency action;
“ ‘(2) “Nonfinal agency action” means the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be prehminaiy, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.’ ” 266 Kan. at 341.
In view of these provisions, the court ruled, the denial letter was unquestionably a “final agency action,” because it finally and completely resolved the plaintiffs’ claim. 266 Kan. at 341.
The court then went on to find a problem with service of the “final order,” because it was not sent to the plaintiffs themselves and did not state the agency officer who could receive service of a petition for judicial review as required by K.S.A. 77-613(e). Because the notice provisions of 77-613(e) required strict compliance, the court said, the 30-day period had not yet expired. 266 Kan. at 342-43.
The second case relied upon by Wiest is Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000). In Schall, the plaintiff was terminated from his position as a clinical supervisor/coordinator. He filed an internal grievance, which was appealed to the Senate Grievance Review Committee, whose recommendation was adopted by the Wichita State University (WSU) president in a written decision. Plaintiff did not file his breach of contract claim pursuant to the KJRA.
On appeal, WSU argued plaintiff s only remedy to appeal the final decision of the president was pursuant to the KJRA, and the Kansas Supreme Court agreed. The court also held plaintiff failed to comply with K.S.A. 77-613(b) by not filing an appeal within 30 days of service of the “final order” of the president. 269 Kan. at 483.
The third case relied upon by Wiest is Heiland v. Dunnick, 270 Kan. 663, 19 P.3d 103 (2001). In that case, the plaintiff was laid off from his position as a financial examiner for the Kansas Savings and Loan Department (subsequently taken over by the State Bank Commission [SBC]), and he claimed he was denied preferential rehiring rights. Plaintiff voiced his concerns by letter to the Department of Administration’s (DOA) Division of Personnel Services; the DOA responded that no positions necessitated the use of reemployment lists. Plaintiff next wrote to the Chief Attorney of the DOA, and his demands were rejected by legal counsel. Plaintiff then presented a claim to the Kansas Legislature’s Joint Committee on Special Claims Against the State and was denied relief. Finally, plaintiff filed a declaratory judgment action against the SBC, and the district court dismissed the case for failure to bring suit under the KJRA within 30 days of the denial of the claim by the Joint Committee. This court affirmed on appeal.
On petition for review, the Kansas Supreme Court found plaintiff s actions in going through the DOA rather than the SBC were appropriate because the DOA had the authority and power to redress his claims. The court found the denial letter from the DOA constituted a “final agency action” as defined by K.S.A. 77-607(b)(1) and (2) and added 3 days for service by mail to the 30-day time limit, pursuant to K.S.A. 77-613(e). The court also noted that the denial letter failed to comply with K.S.A. 77-613(e), although SBC had argued the letter constituted an “action” rather than an “order” and thus compliance with K.S.A. 77-613(e) was not required. 270 Kan. at 670-71.
SBC had argued the “action” in question was its failure to rehire plaintiff during a 3-year preferential rehiring period, and his appeal time should have started running on the last day of that period. The court rejected this argument, stating:
“The KJRA clearly malees a distinction between an order which is subject to judicial review within 30 days of its service and an agency action which is subject to judicial review within 30 days of its date except where it is not discovered or an attempt to exhaust administrative remedies is involved. See K.S.A. 77-613(b) and (d). However, once [plaintiff] attempted to pursue an administrative remedy, the decision of the administrative agency denying his claim became an order.” 270 Kan. at 671-72.
As the denial letter did not comply with K.S.A. 77-613(e), the court applied Reifschneider in concluding the time period to appeal had not yet begun to run. 270 Kan. at 673.
In this case, respondents argue Reifschneider and Heiland are distinguishable because neither involved a clearly defined grievance procedure such as that pursued by Wiest. This distinction does more to assist their opponent than them. The quality and finality of an order is more easily recognized and appropriately acted upon when an established administrative grievance procedure with a definite ending point is in place.
Moreover, although respondents and the district court are correct that Wefald’s November 17 letter qualified as a “final agency action” under K.S.A. 77-607(b)(1) and (2), given that it finally and completely resolved Wiest’s administrative claim, this conclusion does not ehminate the fact that the letter also qualified as a “final order.” Indeed, in Reifschneider, the Supreme Court used the words “action” and “order” in exactly the same senses they appear in the statutes. “Action” defined a broad category of agency endeavor, and “order” a subset of it. See 266 Kan. at 341-43.
Schall and Heiland provide further support for this understanding of the statutory scheme. Even though Schall did not directly consider the difference between a “final order” governed by K.S.A. 77-613(b) and an “agency action other than a rule and regulation or final order” governed by K.S.A. 77-613(d), the Supreme Court termed the president’s letter ending an administrative grievance procedure virtually identical to the one at issue here a “final order.” 269 Kan. at 482-83. In Heiland, once the plaintiff had decided to pursue an administrative remedy through the DOA’s civil service procedures, the Supreme Court stated explicitly that the denial letter from the DOA’s legal counsel ending the administrative phase of the case constituted a “final agency action” and qualified as a “final agency order.” 270 Kan. at 670-72.
Here Wefald’s November 17 letter was a “final order.” Thus Wiest had 30 days from the date of service plus 3 additional days for service by mail to file his petition for review. See K.S.A. 77-613(b) and (e). The petition filed on December 20 was timely.
Our decision on this issue renders Wiest’s other arguments moot. We therefore do not address their merits.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Rogg, J.:
Oshman Sporting Goods Co. Kansas (Oshman) appeals the imposition of civil penalties for overcharges on merchandise in violation of the weights and measures statutes, K.S.A. 83- 201 et seq., and the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. We reverse.
Oshman owned a sporting goods store in Johnson County, Kansas. In 1998, the Kansas Department of Agriculture randomly selected the store as the subject of a price verification test. The price verification test was performed by selecting 100 items in the store, recording their product number, and then entering that number into a cash register, noting any discrepancies between the posted price and the price charged. A score of less than 98% accuracy constituted a failed inspection and prompted the Department to conduct follow-up inspections.
From March 1998 through June 1999, Oshman failed seven price verification tests conducted by the Department’s inspectors. The tests revealed a total of 25 overcharges amounting to $142.65 and 44 undercharges amounting to $435.56. The Johnson County District Attorney filed a petition alleging Oshman had violated the KCPA based on those overcharges.
At a bench trial, the trial court found that Oshman had overcharged for 25 items and each overcharge violated the weights and measures statutes and the KCPA. It imposed a $2,000 fine for each violation, amounting to $50,000 in civil penalties. Oshman appeals.
Statutory interpretation
Oshman contends the trial court’s application of the weights and measures statutes and the KCPA to the facts of this case was based on its erroneous interpretation of K.S.A. 83-201 and K.S.A. 83-219(a)(16). The interpretation of a statute is a question of law, and appellate review is unlimited. See Kleinsorge v. Kleinsorge, 29 Kan. App. 2d 519, 520, 28 P.3d 434, rev. denied 272 Kan. 1418 (2001).
The Kansas Supreme Court has said in reference to statutory interpretation:
“ ‘Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.' [Citation omitted.]” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]).
Definition of measuring device
This case turns on the determination of whether the definition of “measuring device” includes within it a “point-of-sale system.”
The trial court found that the Oshman overcharges violated K.S.A. 83-219(a): “It shall be unlawful for any owner of a commercial weighing or measuring device: . . . (16) to charge or attempt to charge, at the time of the sale of an item or commodity, a value which is more than the price which is advertised, posted, or quoted.” K.S.A. 83-219(d) makes such a practice a violation of the KCPA. Oshman contends K.S.A. 83-219(a) does not apply to its business because it is not the owner of a commercial weighing or measuring device.
A “measuring device” is defined by K.S.A. 83-201(k): “ ‘Measuring device’ includes all weights, scales, beams, measures of every kind, instruments and mechanical devices for weighing or measuring, and any appliances and accessories connected with any or all such instruments.” (Emphasis added.)
Oshman asserts its checkout scanners and registers are not a “measuring device,” but are a “point-of-sale system,” as defined by K.S.A. 83-201(1):
“ ‘Point-of-sale system’ means any combination of a cash register or other devices, or system, such as a scanner, capable of recovering stored information related to the price or computing the price of any individual item which is sold or offered for sale at retail. A point-of-sale system may also include or be attached or connected to a weighing or measuring device.”
We agree with Oshman that under the present ambiguities of the statutory scheme it is less than clear that a point-of-sale system comes within the definition of a measuring device.
Both the State and Oshman point to other definition sections of the applicable statutes to support their interpretation of the definition of a measuring device.
Oshman argues that various definitions indicate a measuring device and a point-of-sale system are exclusive of one another. K.S.A. 83-206(f) and (g) mention both weights and measures and point- of-sale systems, suggesting the former classification does not encompass the latter: “[T]he secretary shall ...(f) [i]nspect and test, to ascertain if they are correct, weights and measures and point-of-sale systems .... and (g) [a]pprove for use, and may mark, such weights and measures and point-of-sale systems . . . .” Furthermore, K.S.A. 83-207 refers to weighing and measuring devices and point-of-sale systems separately, giving an additional indication the legislature did not consider a point-of-sale system to be a weighing or measuring device. “[T]he secretary of agriculture shall adopt standards setting forth specifications, tolerances and other technical requirements for all weights, measures and weighing and measuring devices, and point-of-sale systems.”
The State counters Oshman’s argument with the definition of weights and measures found in K.S.A. 83-201(a): “ “Weights and measures’ means all commercial weights or measures of every kind, instruments and devices for weighing and measuring, and any appliance and accessories associated with any or all such instruments and devices and any point-of-sale system.” (Emphasis added.)
Based on this statutory scheme, the State argues Oshman’s point-of-sale system is a weight and measure, which, in turn, is a measuring device. Therefore, Oshman was the owner of a commercial weighing and measuring device and violated K.S.A. 83-219(a)(16) by attempting to charge more than the posted price.
Oshman asserts this definition of weights and measures does not include point-of-sale systems in their entirety, but only appliances and accessories associated with them.
The explanation for these inconsistencies and ambiguities is in part found in the amendments to the weights and measures statutes. In 1994, the legislature amended K.S.A. 83-201 to include the definition of a point-of-sale system. See L. 1994, ch. 83, § 1. At the same time, the legislature also amended K.S.A. 83-219(a) to include subsections (13) through (16), which seem to address the misuse of point-of-sale systems. See L. 1994, ch. 83, sec. 4. At the hearing on this bill, the Director of the Division of Inspections of the Kansas Department of Agriculture commented: “The purpose of this bill is to address technology changes in the industry and to provide the agency with clear authority to inspect and reg ulate point of sale or electronic price scanning equipment (scanners) which are currently used in commerce.” H.B. 3023, attachment 5.
At the time of the 1994 amendments, the intent of the legislature seems to have been for K.S.A. 83-219(a) to apply to point-of-sale systems. Subsection (a) read: “It shall be unlawful for any person” to commit the unlawful acts. This clarity was clouded in 1996 when the legislature again amended K.S.A. 83-219(a) and changed “person” to “owner of a commercial weighing and measuring device.” See L. 1996, ch. 146, sec. 24. The legislative history does not explain the reason for this change.
We find that the legislative intent to include point-of-sale systems in the definition of “weights and measures” after the 1996 amendments is not clear. We find that the trial court erred in applying K.S.A. 83-219(a)(16) to Oshman.
Alternatively, the State argues the trial court would have also been correct in finding Oshman s overcharges constituted a deceptive act or practice under the KCPA, independent of K.S.A. 83-219(a).
This argument of the State fails. The State argues Oshman’s overcharges violated K.S.A. 50-626(b)(7), which provides that deceptive acts and practices include “making false or misleading representations, knowingly or with reason to know, of fact concerning the reason for, existence of or amounts of price reductions, or the price in comparison to prices of competitors or one’s own price at a past or future time.” Neither the inspectors’ testimony nor the price verification reports address whether the overcharges were related to price reductions or comparisons. There is no substantial competent evidence in the record to support such a holding.
The facts of this case do not involve a consumer transaction. K.S.A. 50-626(a) states: “No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” A consumer transaction is defined as a “sale, lease, assignment or other disposition for value of property or services within the state ... to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). The Department of Agriculture is not a consumer.
The judgment of the trial court is reversed; therefore, we do not reach for consideration other issues raised by the parties.
Reversed. | [
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Knudson, J.:
Donna S. Bell appeals her sentence for felony driving under the influence of alcohol (DUI), contrary to K.S.A. 1997 Supp. 8-l567(a)(3) and (f). We affirm.
Bell’s current offense occurred on April 19, 1998, a dispositive plea was entered on August 21, 2000, and sentence was imposed on December 15, 2000. Bell’s criminal history included prior DUI convictions on July 6, 1995, and April 16, 1998.
K.S.A. 1997 Supp. 8-l567(k) provides, in material part;
“(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(3) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account ....
(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense.”
Bell contends she was improperly sentenced as a felony offender under K.S.A. 1997 Supp. 8-1567(f). She points out her prior conviction on July 6,1995, is not within 5 years of her current conviction on August 21, 2000. According to Bell, K.S.A. 1997 Supp. 8-1567(k)(3) requires counting from the date of the current conviction rather than from the date the crime was committed to determine prior convictions for sentencing enhancement purposes.
The State argues the 5-year retrospection begins on the date of the occurrence rather than the date of the current conviction— under the facts of this case, from April 19, 1998. If the State’s interpretation of K.S.A. 1997 Supp. 8-l567(k)(3) is correct, Bell concedes her felony sentence should stand.
In City of Chanute v. Wilson, 10 Kan. App. 2d 498, 704 P.2d 392, rev. denied 238 Kan. 877 (1985), the defendant was arrested on August 25, 1983, for DUI and convicted in district court on June 29,1984. Wilson had two prior DUI convictions, one on February 8, 1979, and the other on April 1, 1982. He argued a felony sentence should not be imposed because the February 8, 1979, conviction was more than 5 years before his June 29, 1984, conviction. In upholding the trial court’s imposition of a felony sentence, this court held that the 5-year window under K.S.A. 1997 Supp. 8-l567(k)(3) [then K.S.A. 1983 Supp. 8-1567(i)], runs from the date of the current offense to the date or dates of prior convictions. 10 Kan. App. 2d at 500. The court reasoned:
“Although defendant would have us consider only those convictions occurring within the ñve-year period preceding the district court conviction, we believe consideration of convictions occurring within a five-year period preceding the present offense is more consistent with existing case law. In State v. Wilson, 6 Kan. App. 2d 302, Syl. ¶ 1, 627 P.2d 1185, affd 230 Kan. 287, 634 P.2d 1078 (1981), the court held the enhancement of a defendant’s sentence as a third offender under K.S.A. 1980 Supp. 21-4504(2) required each succeeding offense be committed after the conviction for tire preceding offense. Throughout its opinion, the court keyed its analysis of defendant’s offender status to the sequential relationship of preceding conviction to subsequent commission of an offense.
“Again, in State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), the court addressed which convictions could be considered at sentencing. In Osoba the defendant claimed first offender status under K.S.A. 8-1567, alleging conviction of her first offense of driving while under the influence of alcohol must precede her commission of a second offense before the first conviction can be counted for sentencing purposes. The court agreed with the defendant and concluded the sequential relationship applied in Wilson should be extended by analogy to K. S. A. 8-1567(d). The court held K.S.A. 8-1567(d) requires that each succeeding offense be committed after conviction of the preceding offense.” 10 Kan. App. 2d at 499-500.
Bell argues the 1985 legislature amended 8-1567 to add subsection (k)(4), effectively overturning City of Chanute v. Wilson. Al though the amendment does appear to modify the holding in Wilson that prior convictions must occur before the date of the current offense, left untouched is the holding that it is the date of the offense and not conviction that triggers the 5-year window.
We agree with the reasoning of the Wilson court that under 8-1567(k)(3), prior convictions are counted as of the date of the current offense, not the date of conviction. Here, when Bell’s prior convictions are counted as of the date of her present offense, she has two prior convictions within the preceding 5 years. The district court properly sentenced Bell as a felony offender.
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Elliott, J.:
In this “battle of experts” revolving around the cause of a combine fire, defendant Case Corporation (Case) appeals the judgment, following a jury trial, in favor of Douglas and Thomas Dieker, plaintiffs, on their claim Case breached the implied warranty of merchantability.
We reverse.
Plaintiffs purchased a Case combine from an independent dealer of Case products in the fall of 1998; a month later, the combine caught fire and burned while plaintiffs were harvesting soybeans. After the fire, plaintiffs found a trail of oil about a quarter of a mile long from where the combine stopped.
Farm Bureau Insurance reimbursed plaintiffs for the loss of the combine except for plaintiffs $100 deductible obligation, and Farm Bureau was subrogated to plaintiffs’ claims. Plaintiffs sued Case on numerous theories, but at trial only the breach of implied warranty claim was submitted to the jury, which awarded plaintiffs some $96,000 in damages. The trial court denied Case’s renewed motion for judgment as a matter of law or, in the alternative, new trial.
Case contends the trial court erred in allowing plaintiffs’ expert witness, Jay Pfeiffer, to testify concerning the cause of the fire because, Case claims, Pfeiffer was not qualified to testify as to the opinions stated. Our review is for abuse of discretion. Hurlbut v. Conoco, Inc., 253 Kan. 515, 527, 856 P.2d 1313 (1993).
For a witness to testify as an expert on a given subject, he or she must have skill or experience in the area to which the subject relates. Choo-E-Flakes, Inc. v. Good, 224 Kan. 417, 419, 580 P.2d 888 (1978). The test of an expert’s competency is whether he or she discloses sufficient knowledge to entitle his or her opinion to go to the jury. Hurlbut, 253 Kan. at 527. In deciding whether to admit the expert’s opinion testimony, the trial court is to consider the education, training, experience, and knowledge of the witness. K.S.A. 60-456(b); Nunez v. Wilson, 211 Kan. 443, 445, 507 P.2d 329 (1973).
Pfeiffer testified the cause of the fire was due to a small leak of hydraulic fluid, which caused field debris to stick and accumulate in the area of the combine’s transmission system. In turn, as the field debris continued to accumulate, heat from nearby components was unable to properly dissipate and, in fact, built up until the heat reached a level sufficient to cause the oil-soaked field debris to ignite. Pfeiffer further testified that although he did not know the temperature at which hydraulic fluid soaked field debris would ignite and did not know the operating temperatures of the nearby components, such was irrelevant because the fire did, in fact, occur.
Case does not seem to question Pfeiffer’s basic credentials as a licensed mechanical engineer and seems not to question his experience in giving opinions as to the cause of mechanically caused fires. What Case does argue is that the trial court erred in allowing Pfeiffer to further testify the accumulation of hydraulic fluid soaked field debris caused a heat build-up to the point of ignition. Case contends Pfeiffer was simply not qualified to go that far. We agree.
We can find no testimony in the record whatsoever that Pfeiffer possessed the education, training, knowledge, and experience required to express an opinion the conditions he described could cause the fire here involved. On this crucial point, Pfeiffer merely opined that is what must have happened because there was a leak of hydraulic fluid and the fire started in that area.
It is unquestioned that Pfeiffer was well qualified to express an opinion that a mechanical problem led to a hydraulic fluid leak. But it is entirely outside his expertise to opine that hydraulic fluid soaked field debris could ignite from built-up heat from that debris. Pfeiffer s testimony disclosed no specialized knowledge, training, or experience that would lend itself to giving the opinion he gave.
Pfeiffers conclusion the conditions he described must have caused the fire because a fire did, in fact, occur is based on a logical fallacy and demonstrates his lack of proper credentials to give the opinion: There is still no showing the hydraulic fluid soaked debris caused a heat build-up sufficient to cause ignition. Pfeiffer admitted he did not know the temperature at which hydraulic fluid soaked field debris would ignite and did not know the operating temperatures of the nearby mechanical components of the combine.
The fact certain conditions existed and the fact a fire occurred is not evidence the conditions caused the fire. Such is no more than a post hoc, ergo, propter hoc opinion — after this, therefore, on account of it; fallacious reasoning. See State v. Fisher, 140 Kan. 511, 518, 38 P.2d 115 (1934); Black’s Law Dictionary 1186 (7th ed. 1999).
The present case is somewhat similar to Trimble, Administrator v. Coleman Co., 200 Kan. 350, 437 P.2d 219 (1968). There, the trial court refused to admit the opinion testimony of plaintiffs expert, even though defendant raised no questions as to the expert’s general expertise. Plaving examined a photograph of thé gas heating stove and a pamphlet of general operating instructions, the expert was familiar with the stove in question and with similar types of stoves.
The expert opined that a gas heating stove, if properly manufactured, properly assembled, properly installed, and propterly ad justed, should not generate carbon monoxide gas. And assuming the stove in question did produce carbon monoxide gas after being carefully installed and adjusted, the expert was of the opinion the manufacture of the gas stove “was defective somewhere.” 200 Kan. at 354.
The trial court rejected tire testimony because the opinions stated were based on speculation and conjecture, and the Supreme Court affirmed the ruling. 200 Kan. at 357. It is not enough for the expert to assert opinions based on facts not known or presented. See 200 Kan. at 357. The mere fact an injury occurs is not sufficient to establish liability. 200 Kan. at 359. So, too, in the instant case, since Pfeiffer was unaware of the temperature at which hydraulic fluid soaked debris would ignite and was unaware of the operating temperatures of the nearby components he stated were the source of the heat build-up, his opinion was based on speculation and conjecture lacking probative value and should have been rejected. See State v. Duncan, 221 Kan. 714, Syl. ¶ 6, 562 P.2d 84 (1977). Neither courts nor juries — nor expert witnesses— are permitted to roam unfenced fields of speculation and conjecture. See Casement v. Gearhart, 189 Kan. 442, 445, 370 P.2d 95 (1962); State v. Ameen, 27 Kan. App. 2d 181, 184, 1 P.3d 330 (2000).
Further, Pfeiffers testimony was the only evidence offered with respect to hydraulic fluid soaked field debris causing a heat buildup and ignition of that debris. Simply put, without Pfeiffer’s testimony, plaintiffs did not have a submissible case. We must conclude, therefore, the erroneous admission of Pfeiffer’s opinion testimony had a substantial influence on the outcome of this litigation. See 1 Gard & Casad, Kansas C. Civ. Pro. 3d Annot. § 60-261 (1997).
Accordingly, we reverse the judgment of the trial court and remand with directions to enter judgment as a matter of law in favor of Case.
We need not address Case’s real-party-in-interest argument, although we note the exception sought by Case is not supported by current case law. See Fidelity & Deposit Co. of Maryland v. Shaw nee State Bank, 13 Kan. App. 2d 182, Syl. ¶¶ 1-3, 766 P.2d 191 (1988).
Reversed and remanded with directions to enter judgment as a matter of law in favor of Case. | [
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Green, J.:
Marvin K. Robertson appeals his convictions of theft, possession of drug paraphernalia, and burglary. On appeal, Robertson argues (1) that the trial court erred in denying his attorney’s motion to withdraw and (2) that the evidence was insufficient to support his theft conviction. We affirm in part, reverse in part, and remand for a new trial.
Robertson was charged with two counts of theft and single counts of burglary and possession of drug paraphernalia after he was suspected of breaking into a construction site and stealing several items. Several months before trial, Robertson filed a disciplinary complaint against his attorney. Shortly thereafter, Robertson’s attorney moved to withdraw from the case at Robertson’s request. His attorney claimed that the disciplinaiy complaint created a conflict of interest that required her to withdraw from the case. Robertson’s attorney also told the court that there was a “total breakdown in communication.” The trial court denied the defense motion to withdraw.
Robertson’s case proceeded to trial, where he was convicted by a juiy of one count of theft and one count of possession of drug paraphernalia. The juiy was undecided on the burglary charge. Robertson later pled guilty to burglary. Robertson was sentenced to 15 months’ imprisonment.
On appeal, Robertson argues that the trial court’s denial of his court-appointed attorney’s motion to withdraw violated his right to effective assistance of counsel. The State argues that Robertson is raising the claim of ineffective assistance of counsel for the first time on appeal. An allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Van Cleave, 239 Kan. 117, Syl. ¶ 1, 716 P.2d 580 (1986).
A trial court is required to grant a motion to withdraw upon a showing of irreconcilable conflict between a defendant and his or her attorney. Failure to grant a motion to withdraw after the defendant has shown irreconcilable conflict could result in the denial of effective assistance of counsel. State v. Ferguson, 254 Kan. 62, Syl. ¶ 2, 864 P.2d 693 (1993). Because the trial court denied Robertson’s motion to withdraw which was based on a potential conflict of interest, the issue of ineffective assistance of counsel is not being raised for the first time on appeal.
Robertson claims that the trial court should have granted the motion to withdraw because his pending disciplinary complaint against trial counsel created a per se conflict of interest that required the court to allow his attorney to withdraw. Robertson argues that the trial court’s failure to grant the motion to withdraw requires us to reverse his convictions or allow him to withdraw his guilty plea. However, because Robertson did not file a motion to withdraw his guilty plea, we are without jurisdiction to disturb the burglary conviction. See K.S.A. 2001 Supp. 22-3602(a).
On appeal, our scope of review is limited to whether the trial court abused its discretion in denying the motion to withdraw. Ferguson, 254 Kan. at 69. “A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and a client. State v. Taylor, 266 Kan. 967, 978, 975 P.2d 1196 (1999).” State v. Bowen, 21 Kan. App. 2d 122, 127-28, 999 P.2d 286 (2000).
Although Robertson argues that the trial court erred in refusing to allow his attorney to withdraw because the pending disciplinary complaint created a per se conflict of interest, Kansas has not recognized a per se conflict of interest with regard to the attorney-client relationship. Instead, our Supreme Court requires an actual conflict of interest before prejudice will be presumed. The court noted this position in State v. Jenkins, 251 Kan. 1074, 1083-84, 898 P.2d 1121 (1995):
“[W]here the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. In this instance, a showing that there is an actual conflict of interest will result in automatic reversal. [Citation omitted.] Prejudice to the defendant is presumed, and reversal of the defendant’s conviction is automatic.” (Emphasis added.)
Accord Bowen, 21 Kan. App. 2d at 130.
Because Jenkins requires an actual conflict of interest in the attorney-client relationship, we refuse to adopt Robertson’s argument that a pending disciplinary complaint creates a per se conflict of interest. As such, Robertson must establish that his pending disciplinary complaint against his trial counsel created an actual conflict of interest.
Requiring an actual conflict of interest is consistent with several other jurisdictions that have found that a disciplinary complaint or civil lawsuit filed by a defendant against his or her attorney does not create a per se conflict of interest. See, e.g., Carter v. Armontrout, 929 F.2d 1294, 1300 (8th Cir. 1991) (holding that a pending lawsuit between a defendant and his or her attorney may create a conflict of interest but the defendant does not necessarily create such a conflict merely by filing the lawsuit); Douglas v. United States, 488 A.2d 121, 136-37 (D.C. 1985) (finding that a disciplinary complaint is not an automatic basis for declaring a mistrial); People v. Johnson, 227 Ill. App. 3d 800, 813-14, 592 N.E.2d 345 (1992) (noting that the trial court need not honor a request for new counsel merely because the defendant filed a disciplinary complaint); State v. Boyd, 913 S.W.2d 838, 844 (Mo. App. 1995) (noting that although a pending lawsuit between a defendant and his or her attorney may give rise to a conflict of interest requiring appointment of new counsel, a defendant does not necessarily create such a conflict by filing a lawsuit).
We must next determine whether a pending disciplinary complaint could create an actual conflict of interest and, if so, under what circumstances. Because this is an issue of first impression in Kansas, an examination of approaches used by other jurisdictions is insightful.
Some cases addressing this issue have found that a pending disciplinary complaint does not create a conflict of interest. For example, in State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988), the defendant argued that his complaints against his court-appointed attorneys created a conflict of interest that deprived him of effective assistance of counsel. The Reddick court rejected this argument, noting that the defendant’s complaints against his attorneys were not “inherently conducive to divided loyalties” because the attorneys’ best defense against the defendant’s allegations was to provide him with the best possible defense. 230 Neb. at 222. Because the defendant’s and the attorneys’ interests were in har mony, the Reddick court found that the disciplinary complaint did not create a conflict of interest. 230 Neb. at 222-23.
Similarly, in State v. Sinclair, 46 Wash. App. 433, 730 P.2d 742 (1986), the court held that the defendant’s disciplinary complaint against his appointed counsel did not give rise to a conflict of interest so as to require her disqualification. The court rationalized that if the filing of a disciplinary complaint against trial counsel was sufficient to disqualify court-appointed counsel, “a defendant could force the appointment of a new attorney simply by filing such a complaint, regardless of merit.” 46 Wash. App. at 437.
Although Reddick and Sinclair seem to suggest that a pending disciplinary complaint would never give rise to a conflict of interest, other jurisdictions have found that a pending disciplinary complaint or civil lawsuit may create a conflict of interest, depending on the nature of the complaint or lawsuit. For example, the court in People v. Massa, 271 Ill. App. 3d 75, 648 N.E.2d 123 (1995), noted that although a civil lawsuit filed by a defendant against his or her trial counsel may give rise to a conflict of interest requiring appointment of new counsel, a defendant who files such a lawsuit against his or her attorney does not necessarily create such a conflict. The Massa court rationalized that the trial court must consider the nature and gravamen of the defendant’s civil lawsuit filed against his attorney to determine whether the action creates the kind of conflict that requires the court to appoint new counsel for the defendant. The Massa court found that the defendant’s civil lawsuit against his attorney did not constitute an actual conflict because the basis of the lawsuit had been resolved. 271 Ill. App. 3d at 82-83; see Boyd, 913 S.W.2d at 845-46 (considering the nature of the defendant’s disciplinary complaint in finding that an actual conflict of interest did not exist).
The nature of a defendant’s complaint against his attorney was also considered in Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991), in determining whether an actual conflict of interest existed. The defendant’s disciplinary complaint against his appellate counsel was based on the attorney’s dilatory conduct in prosecuting his appeal which resulted in a 6-year delay in hearing the appeal and possible liability of the attorney for the delay. The Mathis court found that this created an actual conflict of interest sufficient to undermine confidence in the outcome of the state appeal. 937 F.2d at 796.
We recognize that an attorney’s best defense to a disciplinary complaint is to provide the defendant with the best possible defense and, as such, a pending disciplinary complaint does not necessarily create a conflict of interest. However, we also recognize that under certain circumstances, a disciplinary complaint could create an actual conflict of interest, depending on the nature of the complaint. As a result, we find that a pending disciplinary complaint filed by a criminal defendant against his or her court-appointed attorney may create an actual conflict of interest depending on the nature of the complaint. Accordingly, the pending disciplinary complaint filed by Robertson against his attorney may have created an actual conflict of interest, depending on the nature of the complaint.
Unfortunately, the trial court failed to inquire into the basis of the disciplinary complaint. To illustrate, the following exchanges occurred on November 19,1999, during the hearing on the motion to withdraw:
“MS. MoLEMORE [Defense counsel]: . . . . At request of Mr. Robertson, I filed a motion to withdraw. It has also come to my attention Mr. Robertson has filed a complaint against me with the Disciplinary Board. I think there is a conflict at this point.
“THE COURT: The problem with that in and of itself, if the filing of the complaint with the disciplinary administrator would cause an attorney to have been removed from the case, then that will spread like wildfire through the jail. They’ll say if you don’t like your lawyer, all you have to do is file a complaint against him [with the disciplinary administrator], and then you automatically get to change lawyers. Guess how many lawyers are going to have complaints filed against them next week. It needs to be something more tha[n] that.”
Significantly, the trial court focused on a perceived problem of defendants filing frivolous disciplinary complaints against their attorneys merely to obtain substitute counsel, rather than inquiring into the nature of Robertson’s disciplinary complaint. Apparently, realizing that the disciplinary complaint was a losing argument with the trial court, defense counsel informed the court that another conflict existed involving a “total breakdown in communication” with Robertson. Specifically, McLemore stated that she had “not been able to communicate with Mr. Robertson effectively.”
Robertson confirmed and attempted to explain the nature of the communication breakdown between himself and his attorney:
“I think Miss McLemore is good counsel. However, as she said, 1 think communication has broken down somewhere, but I don’t think that should be between me and her. I think that to be between her and whoever she negotiated plea negotiations with. It has affected me.
“Me and Miss McLemore have not had communication. So communication is impossible to break down when you don’t have it. I have not had communication with Miss McLemore since October the 15th, 1999.” (Emphasis added.)
Robertson then explained to the trial court the problem with plea negotiations:
“On a case which I pled guilty on, guilty as charged, I [pled] guilty as charged on for a reason. The reason was not because I was guilty. The reason was because I accepted a plea bargain in exchange for plea negotiations. Other charges would be considered to be dropped.
“I didn’t negotiate that plea. That’s why I said obviously plea negotiations has broke down between Miss McLemore and whoever she negotiated plea negotiations with. I didn’t negotiate. That’s why I made that statement.” (Emphasis added.)
We interpret Robertson s statement as informing the trial court that he pled guilty to charges in a prior case even though he may not have been guilty, so that the charges would be dropped in another case, possibly the current case. Rather than investigating this allegation, the trial court responded as follows:
"THE COURT: I don’t know that any defendant negotiates his plea bargain direcdy with the District Attorney unless he doesn’t have an attorney. . . . Your attorney is one that has to do that.
“MR. ROBERTSON: You’re absolutely correct. That was the purpose of me having an attorney. However, if I was going to plead guilty as charged, I did not need an attorney to do that.
“THE COURT: Well, this is a whole other issue. I’m going to find there’s no grounds for withdrawal of counsel. I suppose [the] best argument I heard so far [is the] fact that [a] disciplinary complaint has been filed, but as I say, I think this would be important for the Appellate Court to straighten out. . . .
"... I don’t think that the filing of the complaint can be sufficient to require the replacement of counsel. There has to be a factual basis behind it.”
After the trial court denied the motion to withdraw, Robertson addressed the court again:
“THE DEFENDANT: May I spealc again?
“THE COURT: Yes.
“THE DEFENDANT: I wrote you a letter. I think last month. I explained some of this to you in the letter. I don’t know whether you received it or not.
“THE COURT: I received those, but ordinarily I won’t look at them because I think counsel 'needs to be involved in discussing these if we’re going to.
“MR. ROBERTSON: Everything I mentioned in the letter was on record. I put the date which everything occurred. However, I’m saying that because in that letter, I’m saying now, this whole matter could be cleared up if we could get back to negotiating plea negotiations which were similar and consistent to the original plea which I thought was being negotiated.
“I think this whole thing could be cleared up without further litigation and possibly without jury trial and possibly save some people some time and money.
“THE COURT: I presume, Miss McLemore, you’re interested in continuing to discuss with the District Attorney any plea they may be willing to offer, is that correct?
“MS. McLEMORE: I’m willing to do whatever is necessary in this case. Whatever needs to be done. Needs to go to jury trial, I’m ready to do that. If he wants to negotiate a plea, I’m ready to do that. Whatever the Court wants me to do on this case, as far as representing him, I’m ready to do that, too.
“THE COURT: Why don’t you renegotiate again with the District Attorney’s office and get whatever offer they’re willing to make, get that information back to your client.”
By refusing to consider Robertson’s letter and failing to inquire as to the nature of the disciplinary complaint, the trial court ignored a potential conflict of interest. Nevertheless, this potential conflict of interest apparently concerned McLemore’s supervisor, who tried to focus the trial court’s attention on the pending disciplinaiy complaint:
“MR. NEY: If I might, Richard Ney, for the record. I’m Miss McLemore’s supervisor. We have a dilemma here. I just want to put on the record so the Court is aware, Miss McLemore has been asked to respond to the allegations of Mr. Robertson to the disciplinary committee. We discussed that, we talked about that.
“That response is going to be adversarial, going to be contrary to Mr. Robert-sons position about this case. I just want to make it clear that Miss McLemore has that duty to respond. At the same time, she has the duty to represent him.
“So we’re clear for the record, she is going to respond as required by the disciplinary committee, in the same breath, that will be contrary to the position her client is taking about this case and the effect of the previous case on him.
“THE COURT: I understand. Certainly she would be expected to defend herself on those allegations, but a jury is not going to be aware of this. So they’re not going to be poisoned there’s some kind of dispute between the lawyer and the client in this case.
“You understand my predicament. You really think that if I allowed just the mere filing of an allegation with the disciplinary administrator being sufficient to replace counsel, how would you suggest I do my job. Let’s them replace them as much as they want to.
“MR. NEY: I’m not trying to second-guess the Court. I’m just tiying to put on the record the horns of the dilemma. At the same time to another body disputing the very position he’s making about this case.
“THE COURT: I won’t be aware it will be a confidential proceeding up there. Unless formal hearing is ordered, in which case probably this case will long since be over at the time there’s been any formal disciplinary hearings that would be open to the public. Other than that, I wouldn’t have any knowledge what they’re doing. I’m sure no juror would have any knowledge what’s going on [with the disciplinary complaint], I don’t know that it would prejudice the case down here.” (Emphasis added.)
In pointing out that Robertson would not be prejudiced because the court and the juiy would not know of the disciplinary proceeding, the trial court failed to consider the nature and gravamen of Robertson’s disciplinary complaint filed against his attorney to determine whether the disciplinary complaint created an actual conflict of interest.
A similar issue was addressed in State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999). The defendant in Taylor moved for a continuance so that he could secure new counsel. The trial court did not inquire as to the reasons for the defendant’s request for time to secure alternate counsel and overruled the request, stating that the defendant could represent himself if he wanted to. Although the trial court did not ask about the defendant’s representation, the defendant took the opportunity, offered after his continuance request and his motion to withdraw his plea were denied, to address the court. He made lengthy complaints about his representation and stated that he was rushed into a decision to accept the plea. Primarily, Taylor complained that he took the plea because he concluded that his attorney was unwilling or unprepared to try his case. The Taylor court found that the lack of a meaningful hearing on the defendant’s motion to withdraw his guilty plea was an abuse of discretion. Taylor noted that “[t]he district judge failed to make any inquiry as to the problems between [the defendant] and [his attorney]. Were they imagined or real? The record contains no inquiry from the bench regarding the adequacy of [the defendant’s representation.” 266 Kan. at 975; see Bowen, 27 Kan. App. 2d at 129-30 (finding that the trial court’s inquiry into a potential attorney-client conflict of interest was inadequate to ensure that the defendant received a fair trial).
Here, the trial court similarly failed to meaningfully inquire into the alleged conflict of interest with defense counsel when it failed to determine the nature of the disciplinary complaint. Although the exact nature of the disciplinary complaint is not known, we can infer from the record that it was serious and likely involved the problem regarding plea negotiations. The seriousness of the disciplinary complaint is evidenced by Ney’s comments to the trial court. Ney informed the trial court that McLemore’s response to the disciplinary complaint would be contrary to Robertson’s position in both the current and former case. Despite being informed that McLemore would be taking an adversarial position against Robertson, the trial court did not inquire into the nature of the allegations in order to determine whether an actual conflict of interest was created. Moreover, the trial court failed to ask Robertson and his attorney whether the disciplinary complaint was the crux of their breakdown in communication.
Under Jenkins, the trial court was required to initiate an inquiry into the nature of the conflict. As noted previously, Jenkins held that “where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated.” 257 Kan. at 1084. The trial court was required to inquire into the nature of the conflict because it had “an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment.” 257 Kan. at 1084; see United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (holding that it is a violation of the Sixth Amendment if the trial court refuses to inquire into a substantial complaint when there is no reason to suspect the bona fides of the defendant).
The trial court was put on notice that Robertson may have been represented by conflicting interests. Ney told the trial court that the disciplinary complaint placed McLemore in an adversarial position with Robertson. In addition, both Robertson and his attorney confinned that communication had broken down between them. Despite this, the trial court failed to ascertain the nature of the disciplinaiy complaint in order to determine whether an actual conflict of interest existed requiring the appointment of substitute counsel. As a result, we find that die trial court did not make an inquiry sufficient to ensure a fair trial. See Bowen, 21 Kan. App. 2d at 131.
Because the trial court failed to adequately inquire into the potential conflict of interest created by the disciplinary complaint, the next question is whether an actual conflict of interest existed. See Jenkins, 251 Kan. at 1083-84; Bowen, 21 Kan. App. 2d at 130. Where an attorney owes a duty to a criminal defendant while at the same time is required to respond to a disciplinary complaint filed by that client and which response will be contraiy to the defendant’s position in the current case; where the defendant is maintaining that although he or she may not have been guilty but pled guilty to a previous charge, while represented by his or her current attorney, in a plea bargain that defendant believed would favorably affect the outcome of the present case; and where there has been a total breakdown in communication between the defendant and his or her attorney, one may reasonably conclude that the attorney labored under an actual conflict of interest. Here, McLemore not only had a duty to zealously defend Robertson but also had a duty to respond to a pending disciplinaiy complaint filed by Robertson. Moreover, it is evident from -Ney’s comments to the trial court that McLemore’s response to the disciplinaiy complaint was going to be contraiy to Robertson’s position in both the current and a former case. The disciplinaiy complaint placed McLemore in the untenable position of becoming both an advocate and an adversaiy of the client she owed a duty to defend. Under the facts of this case, we find that an actual conflict of interest existed between Robertson and his attorney. The trial court abused its discretion in denying the defense motion to withdraw.
Although the case is reversed and remanded for a new trial, it is necessary to address Robertson’s claim that the evidence is insufficient to support his conviction of theft. Specifically, Robertson contends that the State failed to present any evidence that he, rather than his acquaintance, stole the property in question.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000).
Contrary to Robertson’s claim that he was simply helping a friend move the property in question, the evidence shows that Robertson took property from the construction site with the intent to permanently deprive the owner of the property. The jury considered Robertson’s defense that he was helping a friend move the property and found that his version of the events was not credible. When the evidence is viewed in the light most favorable to the State, a rational factfinder could have determined that Robertson took property from the construction site with the intent to permanently deprive the owner of its use.
Although the evidence was sufficient to support Robertson’s conviction of theft, that conviction, as well as the conviction of possession of drug paraphernalia, are reversed and a new trial is ordered on those charges because the trial court abused its discretion in failing to inquire into the actual conflict of interest created by the pending disciplinary complaint. However, as noted previously, because Robertson pled guilty to burglary and did not file a motion to withdraw his guilty plea, that conviction is affirmed.
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Johnson, J.:
Following a jury trial, Rasheem A. Coleman was convicted of attempted premeditated first-degree murder and ag gravated robbery; he was sentenced to a controlling term of 346 months’ imprisonment. He timely appealed his conviction and sentence, alleging the district court erred by: (1) refusing to exclude his statements to law enforcement; (2) failing to give certain jury instructions; and (3) allowing the inclusion of juvenile adjudications in his criminal history score. We reverse and remand for a new trial.
The charges in this case arose from the robbery of a store in Wichita called Gold and Diamond Traders. Two men, later identified as Aaron “Spud” Douglas and Mario “Ocho” Merrills, entered the store and demanded money and jewelry. The robbers took approximately $450 cash and various items of jewelry. During the course of the robbery, Merrills shot the owner of the store in the chest.
Coleman’s involvement in the robbery was as an aider and abettor. Douglas and Merrills discussed the robbery with Coleman beforehand; Coleman knew the owner of die store and had been a customer. Indeed, Coleman alerted Douglas and Merrills to the fact that the owner of the store had a gun on the premises. Merrills then made the statement that if the owner pulled a weapon on him, it would be “ ‘the last mistake he makes.’ ”
Coleman and his girlfriend, Tiffany Mayson, drove Douglas and Merrills to the store and waited outside while the robbery unfolded. The group had walkie-talkies to communicate: One was in the car with Coleman and Mayson, and the other was in the store with Douglas and Merrills. Presumably in exchange for his involvement in the robbery, Coleman received 7 to 10 of the rings which were taken from the store.
Coleman was eventually taken into custody, charged with aggravated robbery and attempted first-degree murder, arraigned, and appointed counsel. Mayson, who had apparently not been charged with any offense, repeatedly attempted to contact Deputy District Attorney Kim Parker, who had filed the complaint in Coleman’s case. Unbeknownst to Mayson, Coleman’s case had been reassigned to Assistant District Attorney David Kaufman. Mayson’s messages indicated she wanted to discuss possible plea arrange- merits for Coleman. While Coleman had not asked Mayson to call Parker, he was aware of her activities.
Thinking it would be inappropriate to return Mayson’s telephone calls, Parker asked the Wichita Police Department to tell Mayson to redirect her inquiries to Assistant District Attorney Kaufman. Two police detectives eventually spoke with Mayson’s grandmother, who informed them that Mayson was “laying low.” The detectives asked the grandmother to pass along the message that Mayson’s questions should be addressed to Kaufman, not Parker. When the grandmother mentioned to the detectives that Coleman wanted to cooperate or make a deal, they informed her that Coleman had been appointed counsel and if Coleman wanted to talk, he had to contact them.
The grandmother’s recollection of the conversation was somewhat different. According to her, the detectives told her that they thought Coleman was a good kid and did not have anything to do with the robbery. She also claimed that the detectives told her that they wanted Coleman to contact them so they could make a deal. She then relayed that message to Coleman.
Based on this information, Coleman contacted one of the detectives the following day. Coleman waived his Miranda rights and acknowledged, in writing, that he had initiated the contact with the police. In a taped statement, Coleman admitted his involvement in the robbery.
Defense counsel filed a motion to suppress the tape, arguing that the detectives improperly induced Coleman to contact them and confess. This argument was based on Mayson’s grandmother’s version of the events surrounding her conversation with the detectives. The trial court denied Coleman’s motion, noting that the issue came down to the credibility of witnesses. The judge opined that Coleman was “obviously bright and intelligent” and that “he is not naive of [the] criminal justice system.” However, the trial court found that the police did nothing improper during their conversation with Mayson’s grandmother and that Coleman and May-son solicited the police interview. The tape was admitted into evidence at trial over defense counsel’s renewed objection.
Coleman was ultimately convicted of both aggravated robbery and attempted first-degree murder. At sentencing, the trial judge imposed the “high” presumptive sentence on both counts and ran the sentences consecutively. Coleman’s criminal history score of C included prior juvenile adjudications.
CONFESSION
Coleman challenges the district court’s denial of his motion to suppress his taped statements to the police. Specifically, Coleman argues that the police contact with Mayson’s grandmother, who, in turn, contacted him, improperly induced him to waive his right to counsel and confess to the charged offenses.
Upon the hearing of a motion to suppress evidence, the State bears the burden of proof. When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence, however, is a legal question requiring independent appellate determination. See Arizona v. Fulminante, 499 U.S. 279, 285-87, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); State v. Vandiver, 257 Kan. 53, 57-58, 891 P.2d 350 (1995).
A criminal defendant’s right to counsel is rooted in both the Fifth and Sixth Amendments to the United States Constitution. The Fifth Amendment protection against self-incrimination provides the foundation for the right to counsel during custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 481-82, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Miranda v. Arizona, 384 U.S. 436, 470, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Once a suspect has invoked his or her right to counsel during questioning, the police may not interrogate him or her unless the accused initiates further communications, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85. The Sixth Amendment provides the accused with the right of effective assistance of counsel and attaches at the initiation of adversary judicial proceedings. United States v. Gouveia, 467 U.S. 180, 187-88, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984). If police initiate interrogation after a defendant’s assertion of his or her right to counsel at an arraignment or similar proceeding, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986).
Coleman has alleged violations of his right to counsel under both the Fifth and Sixth Amendments, albeit he has collapsed these arguments in his brief. At the suppression hearing, the State argued that “[t]he real issue gone over by the Court on the October 28 questioning is whether or not Coleman’s Sixth Amendment right to counsel was violated by law enforcement initiating contact with Coleman.” In announcing its decision, the district court did not mention whether its decision was based on the Fifth or on the Sixth Amendment. In deference to the dissent’s belief that we are usurping the fact-finding duties of the trial court, the trial judge’s entire ruling is set forth below.
“Regarding the October 18 interview, I would actually like to thank both the lawyers. This is a very interesting issue, and when you do criminal for as long as I’ve been doing it, you don’t seem to see many new or interesting issues. They all seem tire same. This is extremely interesting. I want to — I agree with Mr. Kaufman that this does come down to the credibility of the witnesses. I want to malee a couple of comments on this. Mr. Coleman testified, and I was land of shocked when I saw his personal history sheet that he has a tenth grade education. Certainly that is not reflected in what I saw on the witness stand. Mr. Coleman is obviously bright and intelligent. He’s well spoken. The answers that he gave here were thoughtful, and I actually thought that he probably had some college. He’s very mature, and I was quite impressed with his level of intelligence that I observed.
“I also would point out that Mr. Coleman is somewhat sophisticated within the criminal history, within the criminal system. His personal history sheet and his own testimony indicate that he has had prior law enforcement contacts. And in fact, it appears he has actually been in prison after the conviction on an escape charge, it appears, as an adult, and a violation of probation to Community Corrections. He’s also been to Labette boot camp. He has some juvenile — he has a juvenile record as well. So I would say that his contact with lawyers, defense lawyers, et cetera, has been somewhat significant for someone of his age, and I would point out that in my mind I believe that that indicates to me that he is not naive of the criminal justice system.
“It is very clear that this whole, this second — I’m calling this the second interview, this interview on October 18 was essentially initiated through the contacts that Tiffany Mayson and perhaps this aunt had with Ms. Parker. Ms. Parker indicated that she had numerous messages left on her answering machine. I’m not surprised that she is somewhat unfamiliar or we did catch her off guard, but she did have definite memory of that. It is supported through Mr. Coleman’s testimony and through the testimony of Ms. Mayson as well. Everyone was aware that Tiffany was — Tiffany Mayson was calling Kim Parker. Ms. Parker indicated that she did contact Detective Jacob. She was somewhat unclear. But given the fact that Detective Jacob testified and his testimony was supported by the testimony of Detective Nevil, that drey went to that home to basically inform Ms. Mayson of the new attorney, of the different attorney, it is clear that this whole situation had its genesis in tire actions of both Mr. Coleman and Tiffany.
“They went to that home not to solicit a statement from Mr. Coleman. I am convinced from the evidence that they went there solely in an investigative manner or whatever, but it was not to solicit a statement from Mr. Coleman. I am convinced from the evidence, clearly convinced from the evidence that they did nothing improper in their conversation with Ms. Mayson. I really don’t know where to go — I don’t think there is much more to say other than I find that Mr. Coleman on his own solicited the contact, initiated the contact with Detective Jacob, both on the day that he called, but all the events that led up to that were initiated by Mr. Coleman and by Tiffany Mayson. And I find that the statement is admissible in trial in this matter.”
We proceed to analyze the events under both the Fifth Amendment and the Sixth Amendment.
1. Fifth Amendment Right to Counsel
Prior to a custodial interrogation, a suspect must be advised that he or she has the right to remain silent and the right to the presence of counsel. Miranda, 384 U.S. at 479; State v. Matson, 260 Kan. 366, 373, 921 P.2d 790 (1996). A custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. The definition of “interrogation” extends to “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” State v. Valdez, 266 Kan. 774, 793, 977 P.2d 242 (1999) (citing Rhode Island v. Innis, 446 U.S. 291, 299-302, 64 L. Ed. 2d 297, 100 S. Ct. 1682 ,[1980]). If a suspect effectively waives his or her right to counsel after receiving Miranda warnings, law enforcement officers are free to question him or her. North Carolina v. Butler, 441 U.S. 369, 372-76, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979). However, if a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect reinitiates conversation. Edwards, 451 U.S. at 484-85.
There is no doubt that Coleman’s interaction with the police was a custodial interrogation as contemplated by the Fifth Amendment and that he was entitled to have counsel present. The issue is whether Coleman’s waiver of his Miranda rights was valid.
“[W]aivers of counsel must not only be voluntary, but must also constitute aknowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ’’ Edwards, 451 U.S. at 482 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 [1938]).
Prior to questioning, Coleman executed a written waiver of his Miranda rights. At no time during the interview or during any police questioning did Coleman assert his right to counsel. An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he or she has previously retained counsel does not necessarily render inadmissible an otherwise voluntary statement made by the defendant in his or her counsel’s absence. State v. Pursley, 238 Kan. 253, 263, 710 P.2d 1231 (1985).
Coleman does not appear to challenge the voluntariness of his confession. Therefore, we need not consider whether the waiver was induced by an unfulfilled promise of a favorable plea arrangement. Coleman’s argument is that the district court should have suppressed his statement because the police conduct at issue constituted an improper initiation of contact. The problem with Coleman’s argument is that he never asserted his right to counsel during any police questioning. Because Coleman never actually invoked his right to counsel during police questioning, the Edwards rule does not apply and his argument fails. See Davis v. United States, 512 U.S. 452, 458, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994); State v. Bailey, 256 Kan. 872, 882, 889 P.2d 738 (1995).
2. Sixth Amendment Right to Counsel
The analysis under the Sixth Amendment is somewhat different, although the basic rule is the same. The Sixth Amendment provides for the assistance of counsel for an accused in all criminal prosecutions. Once this right has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective. Jackson, 475 U.S. at 636. Because of their differing sources, however, the Fifth Amendment and Sixth Amendment “no-contact” rules have been applied differently. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991) (holding Sixth Amendment right to counsel, and therefore the effect of Jackson, is “offense specific”); State v. Morris, 255 Kan. 964, 976-79, 880 P.2d 1244 (1994).
Indeed, our courts have recognized the distinct purposes behind the right to counsel as provided in the Sixth Amendment, and that established by Miranda, Edwards, and the Fifth Amendment. The purpose of the Sixth Amendment guarantee of counsel is to “ protec[t] the unaided layman at critical confrontations’ with his ‘expert adversary,’ the government, after ‘the adverse positions of government and defendant have solidified’ with respect to a particular alleged crime.” McNeil, 501 U.S. at 177-78 (quoting Gouveia, 467 U.S. at 189). On the other hand, the purpose of the Miranda-Edwards guarantee is to protect a different interest: “the suspect’s ‘desire to deal with the police only through counsel.’ ” McNeil, 501 U.S. at 178 (quoting Edwards, 451 U.S. at 484).
Jackson implicitly rejected any equivalence between the invocation of the Sixth Amendment right to counsel and the expression of the desire to have counsel present during a custodial interview, as required by Edwards. In other words, the assertion of the Sixth Amendment right to counsel does not necessarily constitute the expression, as Edwards required, of a wish to have counsel present during a custodial interrogation. Thus, the relevant question in applying Jackson is not whether the Miranda/Fifth Amendment right had been asserted, but whether the Sixth Amendment right to counsel had been waived. McNeil, 501 U.S. at 179. Again, waiver of the right is valid only when it reflects “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988) (quoting Johnson, 304 U.S. at 464).
There is no dispute that Coleman’s right to counsel under the Sixth Amendment had attached and had been asserted when he was appointed counsel. Compare Patterson, 487 U.S. at 290-93 (holding Jackson did not apply where accused had not invoked his Sixth Amendment right to counsel at indictment and was not represented by counsel at post-indictment questioning). Under Jackson, any waiver of his right to counsel during a subsequent police-initiated interview would be invalid; consequently, any statements made during such an interview should be suppressed.
The Sixth Amendment imposes on the State an affirmative duty to respect and preserve an accused’s choice to seek the assistance of counsel. Specifically, police and prosecutors are obligated not to act in a manner that circumvents and dilutes the protection afforded by the right to counsel. Maine v. Moulton, 474 U.S. 159, 171, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985). The Sixth Amendment is not always violated when the State obtains incriminating evidence from the accused after the right to counsel has attached. “However, knowing exploitation by the State of an opportunity to confront die accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Moulton, 474 U.S. at 176.
While the facts and issues in Moulton are admittedly different from those in the instant case, as the interrogation in that case was covert, the rationale behind that decision is still applicable here. In Moulton, the police enlisted the assistance of a codefendant to elicit and record incriminating statements from the defendant, after the defendant had retained counsel. The Court held that incriminating statements pertaining to pending charges are inadmissible at the trial of those charges if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel during a confrontation between the accused and a State agent. Moulton, 474 U.S. at 180.
As noted previously, we are to give deference to the trial court’s factual findings. However, this rule does not mandate that we suspend logic or ignore uncontroverted evidence. While the trial judge opined her decision turned on witness credibility, the fact that Coleman was initiating contact with the State for the purpose of negotiating a plea was uncontroverted.
Kim Parker testified at the suppression hearing. Parker was a deputy district attorney; she was an experienced prosecutor. She recalled receiving several messages from a person she thought was Coleman’s aunt, although she could not recall whether she actually spoke with the person. The “aunt” was seeking some consideration in the charging of Coleman because of his lesser participation in the robbery. The “aunt” left a telephone number for Parker to return her calls, but Parker felt it was inappropriate to contact Coleman’s aunt at that stage of the proceeding. Parker gave Detective Jacob the caller’s name, so that Jacob could contact the caller.
Detective Jacob testified that Parker called him to say she had been receiving telephone calls or messages from Tiffany Mayson (Coleman’s girlfriend, not aunt) advising Parker that Coleman wanted to make a deal. The officer sought to locate Mayson, but eventually spoke with her grandmother, Lynnette, who advised Jacob that Coleman was a good boy and that he wanted to cooperate or make a deal. Jacob’s response was to advise Lynnette that Coleman was assigned an attorney and the police could not contact Coleman unless Coleman first contacted the police.
It is unclear as to why Parker believed it would be appropriate for law enforcement to contact the caller on behalf of the State if, as she testified, it was inappropriate for her to do so. Further, the State’s assertion that Jacob was sent simply to advise the caller that another prosecutor was handling the case is puzzling. If it was inappropriate for Deputy District Attorney Parker to visit with the caller, why would it have been appropriate for Assistant District Attorney Kaufman to do so? What was the caller to do with Jacob’s information, if Kaufman was also precluded from returning phone calls? If Parker chose to send a message to Coleman through May-son via the police, rather than simply advising the public defender that his or her client wanted to discuss a plea, then the message should have been that Coleman should contact his attorney to initiate plea negotiations.
Kaufman argued at the suppression hearing: “As far as a courtesy call [to defense counsel], I understand what [the defense attorney is] saying. Law does not require it, though.” We disagree. The rule permitting an end-run around the Sixth Amendment if a defendant initiates the contact does not apply to requests for plea negotiations. A prosecutor cannot enter into plea negotiations directly with a defendant who is represented by counsel; neither can a police officer. Otherwise, the purpose of the Sixth Amendment, i.e., to protect the unaided layman at critical confrontations with his expert adversary, would be nullified. Plea negotiations are as critical a confrontation as a defendant will face during the adjudicatory process.
We do give deference to and accept the district court’s findings that: (1) Coleman solicited the contact with Jacob the day of the interview; and (2) Coleman and/or Mayson set in motion the events that led to Jacob’s interrogation. However, even in a light most favorable to the State, giving specific credence to the testimony of Detective Jacob, Coleman’s message was clear: He wanted to make a deal. Jacob had no authority to effect a deal. The only conceivable purpose for Jacob’s suggestion that Coleman contact him was to try to legitimize an uncounseled interrogation under the guise of plea negotiations. Jacob initiated the uncounseled interrogation of Coleman by suggesting that plea negotiations could not commence unless Coleman called the police. Detective Jacob knew that when Coleman asked to speak with him, Coleman was expecting plea considerations in return for his statement. Indeed, the trial judge observed that Coleman was intelligent and experienced in the ways of the criminal justice system. Giving deference to those observations, it is inconceivable that Coleman would contact police to make an uncounseled, gratuitous confession without expecting a quid pro quo from the State. At worst, the statements were obtained through misrepresentations that a plea offer was forthcoming. At best, any waiver of Coleman’s Sixth Amendment right to counsel was not an intentional relinquishment or abandonment of a known right.
The State’s argument on appeal suggests that police compliance with Miranda is sufficient to protect an accused’s right to counsel under the Sixth Amendment. Such an argument neglects the distinction between the accused’s right to counsel under the Fifth Amendment and that under the Sixth Amendment. Coleman’s initiation of contact with an agent of the State for the purpose of negotiating a plea while being represented by counsel is distinguishable from those cases in which a defendant initiates contact for the purpose of making a voluntary statement.
We acknowledge the State’s contention that Jackson has been called into question by some members of the United States Supreme Court, citing Texas v. Cobb, 532 U.S. 162, 175-76, 149 L. Ed. 2d 321, 121 S. Ct. 1335 (2001) (KENNEDY, J„ concurring). While some justices are apparently of the opinion that compliance with Miranda provides a sufficient protection of the Sixth Amendment right to counsel, Jackson nevertheless remains good law.
Coleman’s motion to suppress the taped statement should have been granted. The remaining question is whether the trial court’s error necessitates a new trial. Errors of constitutional magnitude may be held to be harmless if the appellate court can declare a belief that it was harmless beyond a reasonable doubt, i.e., that the error had little, if any, likelihood of having changed the result of the trial. State v. Fulton, 269 Kan. 835, 845, 9 P.3d 18 (2000).
We cannot say that the erroneous admission of Coleman’s confession was harmless error. Prior to the taped interview, Coleman made few, if any, incriminating statements to the police. Certainly, such damning evidence contributed to the jury’s verdict. See State v. Benoit, 21 Kan. App. 184, 196-97, 898 P.2d 653 (1995). Consequently, Coleman’s convictions are reversed, and the case is remanded for a new trial.
JURY INSTRUCTIONS
Coleman argues that the district court erred in instructing the jury. First, he claims the district court committed reversible error when it inadvertently neglected to include PIK Crim. 3d 68.09 (1998 Supp.) on lesser included offenses in the jury instructions. Coleman also contends the district court erroneously refused to give his requested instruction defining premeditation.
As a preliminary matter, the parties disagree as to the applicable standard of review. Coleman requested both instructions at issue in his proposed instructions submitted to the district court, but he failed to lodge a timely objection to their exclusion.
Coleman contends that because he requested the instructions, our standard of review is “independent.” See State v. Sims, 265 Kan. 166, 168, 960 P.2d 1271 (1998). In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting tíre instruction. State v. Saleem, 267 Kan. 100, 113, 977 P.2d 921 (1999).
The State argues that because Coleman failed to object to the exclusion of the requested instructions, the district court’s failure to include the disputed instructions must be clear error. See K.S.A. 2001 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, Syl. ¶ 3, 17 P.3d 340 (2001).
In State v. Pabst, 273 Kan. 658, 44 P.3d 1230 (2002), the court opined that where no objection is made to the exclusion of a requested instruction, our standard of review is whether the instruction given properly and fairly stated the law as applied to the facts of the case and whether the instruction reasonably could have misled the juiy. The court expressly disapproved of the State’s argument, noting “ *[i]t is well established that this court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.’ [K.S.A. 22-3414(3).]” 273 Kan. at 660 (citing State v. Sperry, 267 Kan. 287, 294, 978 P.2d 933 [1999]). With this standard of review in mind, we move on to the merits.
Lesser Included Offense
At the conclusion of Coleman’s jury trial, defense counsel requested the following instruction on lesser included offenses:
“The offense of Attempted Murder in the First Degree with which Mr. Coleman is charged includes the lesser included offenses of Attempted Second Degree Murder and Attempted Second Degree Murder, Unintentional.
‘You may find Mr. Coleman not guilty, or guilty of Attempted First Degree Murder, Attempted Second Degree Murder or Attempted Second Degree Murder, Unintentional.
“When there is reasonable doubt as to which of two or more offenses Mr. Coleman is guilty, he may be convicted of the lesser offense only.
“Your presiding juror should sign the appropriate verdict form. The other verdict forms are to be left unsigned.” (Emphasis added.) See PIK Crim. 3d 68.09 (1998 Supp.).
At Coleman’s hearing on his motion for new trial, the trial judge acknowledged that PIK Crim. 3d 68.09 had originally been included in the jury instructions, but had somehow disappeared from the packet and was not given to the jury. The trial court, however, denied Coleman’s motion for new trial.
Our courts have previously addressed the district court’s failure to give PIK Crim. 3d 68.09. As Coleman points out, however, these cases were reviewed under the clearly erroneous standard of review. See State v. Massey, 242 Kan. 252, 262, 747 P.2d 802 (1987) (holding failure to give PIK Crim. 3d 68.09 is not clear error when PIK Crim. 3d 56.03 is also given); see also State v. Trujillo, 225 Kan. 320, 323-24, 590 P.2d 1027 (1979) (holding failure to give PIK Crim. 3d 68.09 not clearly erroneous when defense counsel did not request it). As a result, these cases are of limited assistance in the resolution of the issue on appeal.
Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused and are correct statements of the law. State v. Crabtree, 248 Kan. 33, Syl. ¶ 6, 805 P.2d 1 (1991). Despite the district court’s failure to include the requested instruction on lesser included offenses, the juiy here was nevertheless instructed that “[i]f you do not agree that the defendant is guilty of attempted first-degree murder in count one (1), you should then consider the lesser included offense of attempted second degree murder.” See PIK Crim. 3d 56.03 (1999 Supp.). The two instructions, while worded differently, elicit the same result. The instruction given is a correct statement of the law and accurately informed the jury that, if it had reasonable doubt as to Coleman’s guilt on the first-degree murder charge, it was to consider the second-degree murder charge. The jury could not have been confused or misled by the omission of PIK Grim. 3d 68.09.
PREMEDITATION
Coleman also challenges the trial court’s instruction on premeditation. The jury was instructed that “[premeditation means to have thought over the matter beforehand. There is no specific time element required to establish premeditation.” Coleman requested that the jury be instructed that “[deliberately and with premeditation means to have thought over tire matter beforehand. Premeditation means that there was a design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill.”
The pattern instruction, defining premeditation, PIK Crim. 3d 56.04(b)(1993 Supp.), states:
“Deliberately and with premeditation means to have thought over the matter beforehand.
“For authority, see State v. McGaffin, 36 Kan. 315, 13 Pac. 560 (1887), in which it is said: Premeditation means ‘that there was a design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill Sherman.’ See also, State v. Johnson, 92 Kan. 441, 140 Pac. 839 (1914); State v. Martinez, 223 Kan. 536, 575 P.2d 30 (1978); and State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988), for approval of this instruction.
“Effective July 1, 1993, ‘deliberately’ is ho longer included in the statutory definition of murder in the first degree.”
The jury received the pattern instruction, i.e., that premeditation means to have thought over the matter beforehand. The trial judge modified the instruction, adding the “no specific time element” language that was approved in, e.g., State v. Caenen, 270 Kan. 776, 782, 19 P.3d 142 (2001). Coleman apparently does not take issue with the inclusion of this language. Instead, Coleman complains that the additional language he requested, which is referenced in the PIK instruction, was not included.
The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and unifor mity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to malee such an adjustment. However, absent such a need, PIK instructions and recommendations should be followed. State v. Whitesell, 270 Kan. 259, 291, 13 P.3d 887 (2000).
The language Coleman requested, while referenced in the PIK instruction is not technically part of the instruction. Indeed, there is some question as to the propriety of the “planned, contrived and schemed” definition of premeditation. Our Supreme Court did use this definition in State v. Thompkins, 263 Kan. 602, 609, 952 P.2d 1332 (1998); however, the court subsequently noted that this definition did not displace the “ 'to have thought over the matter beforehand’ ” definition. Further, the court remarked that the source of this language, McGaffin, was only of “historical interest.” Saleem, 267 Kan. at 105. The court specifically observed that the “ 'planned, contrived, and schemed’ ” language was not part of the PIK instruction. Saleem, 267 Kan. at 104-05. Additional evidence of the growing trend against using Coleman’s proposed language may be found in the recently revised version of 56.04(b):
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to ldll before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.
“For authority, see State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001); State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000); and State v. Monda, 262 Kan. 58, 70-73, 936 P.2d 727 (1997).
“Effective July 1, 1993, ‘deliberately’ is no longer included in the statutory definition of murder in the first degree.” PIK Crim. 3d 56.04(b) (2001 Supp.).
The district court did not err in refusing to instruct the jury in a manner that has now been disapproved by both our Supreme Court and the PIK committee.
The jury received an accurate statement of the applicable law. Because our courts have called into question the language Coleman sought to introduce, it cannot be said that such language is a correct statement of the current law. Additionally, there is very little possibility that the jury was confused by the instruction given. The evidence of premeditation in this case is clear: Merrills’ statement indicated that prior to the robbery, he considered killing the owner of the shop if he brandished a weapon during the robbery. The trial court did not err in instructing the jury.
JUVENILE ADJUDICATIONS IN CRIMINAL HISTORY
Finally, Coleman argues the district court erred in including juvenile adjudications in his criminal history score. Specifically, Coleman contends that juvenile adjudications included in a criminal history score increase the penalty for a crime beyond the statutory maximum in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), as they were not required to be proven to a jury beyond a reasonable doubt. Our Supreme Court recently considered, and rejected, this exact argument in State v. Hitt, 273 Kan.224, Syl. ¶ 1, 42 P.3d 732 (2002).
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Hill, J.:
Wesley Wherrell appeals the district court’s decision awarding Deborah Wherrell one-half of the payment he received upon his discharge from the Navy. We reverse and remand.
A review of the facts is necessaiy to understand the issues that arise in this case. The Wherrells were married in October 1976, while Wesley was a member of the United States Navy. In 1995, he was placed on temporary disability retirement. At that time, Wesley was found 10% disabled due to a respiratory condition. Deborah filed for divorce in 1998, which was granted. Their journal entry of divorce contained this provision: “[Deborah shall receive] 50 percent (50%) of the disposable retired or retainer pay otherwise payable to respondent due to his military service.”
Wesley received monthly retirement checks and monthly disability checks until his discharge from the Navy in 1999. According to his discharge letter, Wesley would receive severance pay. Wherrell also received a Form 1099-R from the United States Department of the Treasuiy showing the distribution of a retirement plan and how much money was withheld for taxes. The form also contained die following information: “Call ... if you have a question about your retired 1099-R.”
Then, in August 2000, Deborah filed a motion to enforce the divorce decree. She claimed that since Wesley received $1,300 a month in disability pay, she should have received $650. In fact, Wesley only sent Deborah $400 a month from September 1998 through November 1999. Deborah also claimed that Wesley received a $60,910.15 check in December 1999 for his retirement. Deborah asked the court to order Wesley to pay her $3,750 as her share of the back disability pay and $30,455.07 from the retirement pay. Wesley argued to the district court that the money he received was disability severance pay and not divisible in the divorce.
Our standard of review for the division of property is based upon an abuse of discretion. Appellate courts have held consistently that trial courts have wide latitude in dividing the assets of divorcing parties. Ordinarily the trial court’s ruling will not be disturbed unless there is a clear showing of abuse. In re Marriage of Callaghan, 19 Kan. App. 2d 335, 340, 869 P.2d 240 (1994). A finding of abuse occurs if no reasonable person would adopt the trial court’s view. It cannot be said a trial court abused its discretion if reasonable people could differ as to the soundness of the trial court’s action. Wood v. Groh, 269 Kan. 420, 429, 7 P.3d 1163 (2000).
The parties differ about tire nature of the lump sum payment made to Wesley. Wesley contends that the payment was a disability check and not subject to division in a divorce. Deborah contends the payment was a retirement check and can be divided.
The distinction between a retirement payment and a disability payment is important. Our United States Supreme Court ruled in McCarty v. McCarty, 453 U.S. 210, 235-36, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981), that state courts could not distribute any portion of a military nondisability retirement pension to the former spouse of a military retiree. In 1982, in reaction to the McCarty decision, Congress enacted the federal Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408 (2000). According to that statute, “[a] court may treat disposable retired pay payable to a member . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1) (2000).
When it created the Spouses’ Protection Act, Congress specifically excluded from the definition of “disposable retired pay” disability benefits deducted from the retired member’s pay. See 10 U.S.C. § 1408(a)(2)(C) (2000). The United States Supreme Court followed with Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989), where it ruled that the Spouses’ Protection Act does not allow state courts to divide veterans’ disability benefits in marital property settlements under state law. 490 U.S. at 594-95.
This court ruled in In re Marriage of Pierce, 26 Kan. App. 2d 236, 982 P.2d 995, rev. denied 268 Kan. 847 (1999), that the trial court in that case was correct when it ruled that the retired serviceman was not required to pay disability benefits to his former spouse. 26 Kan. App. 2d at 240.
In this case, the district court noted that the Pierce decision did not control this issue. The district court ruled that disability benefits were not at issue. As a result, the district court concluded that the benefits were retirement pay from the Navy. Under the divorce decree Deborah was entitled to 50 percent of the lump sum settlement paid to Wesley due to his military service and his retirement therefrom. The district court, however, was incorrect in its view that tire lump sum payment to Wherrell was a retirement payment because Wesley did not have sufficient time in the service to retire.
A review of the federal scheme of payments to servicemen and women is important to this decision. Under 10 U.S.C. § 1210(e) (2000), if a service member’s physical disability is determined to be less than 30 percent after a physical examination, and he or she has worked less than 20 years for the service, his or her name has to be removed from the temporary disability retired list. That person can then be separated from the military under 10 U.S.C. § 1203 (2000).
10 U.S.C. § 1203 (2000) provides that after a finding of unfitness due to physical disability, the service member may be separated from the military with disability severance pay. The disability severance pay is computed under 10 U.S.C. § 1212(a) (2000): “Upon separation from his armed force under section 1203 or 1206 of this title, a member is entitled to disability severance pay.” But, before this can occur, the military must make certain determinations about the disability.
The military must find:
“(1) the member has less than 20 years of service computed under section 1208
“(2) the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence;
“(3) based upon accepted medical principles, the disability is or may be of a permanent nature; and “(4) either—
(B) the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at die time of the determination, and the member has at least eight years of service computed under section 1208 of this title, or
(C) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, the disability was neither (i) the proximate result of performing active duty, (ii) incurred in line of duty in time of war or national emergency, nor (iii) incurred in line of duty after September 14, 1978, and the member has less than eight years of service computed under section 1208 of this title on the date when he would otherwise be retired under section 1201 of this title or placed on the temporary disability retired list under section 1202 of this tide.” 10 U.S.C. § 1203 (2000).
What this means in Wesley s case is that when he was informed he was first placed on the temporary disability retired list and his disability rating fell below 30 percent, he might have been entitled to retirement pay or separation with disability severance pay.
Finally, in July 1999, the Physical Review Board released its report on Wesley. The Board, tracking the language of 10 U.S.C. § 1203, arguably had the requirements of the section in mind when writing the report. The Board found Wesley to be 10 percent disabled from desquamative interstitial pneumonitis. The Board also found that the disability happened while he was entitled to receive basic pay, the disability did not occur during an unauthorized absence, the disability was not the result of intentional misconduct or neglect, and the disability did occur after September 14, 1978. Finally, the Board recommended that Wesley be separated from the military with severance pay.
In light of these facts, the trial court’s decision was not reasonable. It appears to us that in July 1999, the military recommended that Wesley be separated with disability severance pay. The military tracked the language of tire statute that entitled Wesley to disability severance pay, and in October 1999, Wesley received a letter from the Navy informing him he was discharged from the Navy and would be receiving severance pay. Some time later that fall, Wesley received a check from the Navy.
10 U.S.C. § 1201 (2000) defines how a service member qualifies for retirement benefits. Wesley would have to have been a member of the Navy for at least 20 years or be disabled at least 30 percent. Wesley simply cannot meet these requirements. He was only in the Navy for 1614 years, and he was only 10 percent disabled. Wesley was ineligible to receive Navy retirements benefits.
Since the benefits awarded to Wesley were disability benefits, they cannot be divided in the divorce following the mandates of Mansell, 490 U.S. at 594-95 and Pierce, 26 Kan. App. 2d 236, Syl. ¶ 3. We find that the trial court’s decision that Deborah was en-tided under the divorce decree to 50 percent of the lump sum payment was incorrect.
The remaining issues are moot.
Reversed and remanded. | [
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Green, J.:
Derrick W. Davis appeals from a trial court order denying his petition for writ of habeas corpus following a retroactive withholding of good time credits for disciplinary convictions. We affirm.
Davis received a class II disciplinaiy conviction on July 19,1998, and a class I disciplinary conviction on February 24, 1999. Under K.A.R. 44-6-124(g), a disciplinaiy conviction results in the withholding of good time credits. Davis, however, did not have any good time credit withheld because it was believed that he was not entitled to good time credit. Several years later, it was discovered that Davis was eligible to receive good time credit, and he was retroactively awarded good time credit. However, 120 days of good time credit were withheld due to the two disciplinary convictions.
Davis then filed a writ of habeas corpus alleging that the retroactive withholding of good time credit violated his constitutional rights. Without holding a hearing, the trial court dismissed Davis’ K.S.A. 2001 Supp. 60-1501 petition after finding that 120 days of good time credit were properly withheld under K.A.R. 44-6-124(g)(1) and (2). A K.S.A. 2001 Supp. 60-1501 petition filed by an inmate is subject to summary dismissal unless it asserts the deprivation of a constitutional right. The inmate has the burden of proving a violation of his or her constitutional rights in a habeas proceeding. Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16 (1997).
On appeal, Davis argues that the trial court erred in finding that his good time credit was properly computed. Davis has a liberty interest protected by the Due Process Clause of the Fourteenth Amendment in good time credits already earned. See Frazee v. Maschner, 12 Kan. App. 2d 525, 528, 750 P.2d 418, rev. denied 243 Kan. 778 (1988). Accordingly, Davis has alleged a violation of a constitutional magnitude if he was denied good time credits already earned.
K.A.R. 44-6-124 addresses the awarding of good time credits. Subsection (g) provides in pertinent part:
“(g) An inmate’s disciplinary record shall affect the earning of good time awards in the following manner.
(1) A guilty finding of a class I disciplinary offense shall result in the withholding of a minimum of 50% of the good time credits available for that program classification review period.
(2) A guilty finding of a class II disciplinary offense shall result in the withholding of a minimum of 25% but not more than 50% of the good time credits available for that program classification review period.”
Good time credits “can be withheld because the inmate has not yet earned the credits by being violation free for the review period.” In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001).
Here, Davis was retroactively awarded earned good time credits. However, 120 days of good time credit were withheld because of his disciplinary convictions. Because Davis did not earn the 120 days of good time credit that were withheld, he has not alleged a violation of a constitutional magnitude.
Davis argues that even if the withholding of good time credit was not a constitutional violation, the trial court nevertheless erred in denying his K.S.A. 2001 Supp. 60-1501 petition because the calculation of his good time credit is intolerable to fundamental fairness. To support his argument, Davis relies on Swisher v. Hamilton, 12 Kan. App. 2d 183, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). Swisher held that to avoid summary dismissal of a 60-1501 petition “institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock the general conscience, or be intolerable to fundamental fairness. [Citation omitted.]” 12 Kan. App. 2d at 184. Stated another way, “allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” 12 Kan. App. 2d at 184-85.
Davis argues that the calculation of his good time credits is intolerable to fundamental fairness because his credits were withheld by a unit team manager rather than by the disciplinary board and the hearing officer. To support Iris argument, Davis cites K.A.R. 44-13-406, which provides for the disposition of a disciplinary proceeding by a hearing officer. However, Davis’ reliance on K.A.R. 44-13-406 is misplaced because his good time credits were not withheld pursuant to that regulation. Instead, Davis’ good time credits were distributed under K.A.R. 44-6-101(d), which provides that the “ ‘[a]ward of good time credits’ means the act of the unit team, as approved by the program management committee and the warden or designee, granting all or part of the allocation of credits available for the time period under review.”
Davis’ earned good time credits were properly awarded by the unit team manager and, as a result, his argument that they needed to be awarded by the disciplinary board and the hearing officer is without merit. Because the withholding of Daws’ good time credits was in compliance with the applicable regulations, it cannot be said that the calculation of his good time credit is intolerable to fundamental fairness.
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Brazil, J.:
Bunnell Farms Co. (Bunnell) appeals the district court’s granting of summary judgment in favor of Samuel Gary, Jr. & Associates, Inc., and Dunne Equities, Inc., (Dunne) in an action on an oil and gas lease. The sole issue in this appeal is whether the lessee, Dunne, commenced drilling within the primary term of the lease.
We conclude that it did and affirm the trial court.
Bunnell is the owner of a tract of real property in Comanche County. On July 14, 1997, Bunnell granted an oil and gas lease to Bobby Joe Posey covering the property. The lease was subsequently assigned to Dunne. A working lease was then assigned to Samuel Gary, Jr. & Associates.
The lease included a 3-year primary term to expire on July 14, 2000. The lease also contained the following provision:
“This lease may be maintained during the primary term hereof without further payment or drilling operations. If the lessee shall commence to drill a well within the term of this lease or any extension thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch, and if oil or gas, or either of them, be found in paying quantities, this lease shall continue and be in force with like effect as if such well had been completed within the term of years first mentioned.”
In May 2000, Dunne contacted Big A Drilling (Big A) regarding the possibility of drilling a well on the leased property. On July 11, 2000, Dunne filed a notice of intent to drill with the Kansas Corporation Commission (KCC). Dunne entered into a drilling contract with Big A on July 12, 2000, to drill a well 6,500 feet deep. It was determined the original location of the well had to be moved due to the presence of an existing waterway, and a second notice of intent to drill was filed on July 14, 2000. The dirt contractor, Cliff Keller Dirt Construction, began work on July 12, 2000. On July 14, 2000, Weeder Well Services, Inc., drilled a hole to 51 feet and set and cemented 51 feet of 20-inch conductor pipe. Heavy rain prevented Big A from moving its drilling rig onto the property until after July 16,2000, after which time a gas well was completed.
On November 8, 2000, Bunnell filed a petition claiming Dunne had faded to commence drilling a well within the 3 years prescribed by the lease. The petition alleged a breach of contract and bad faith trespass by Dunne and sought an accounting of all volumes of gas sold and the proceeds of those sales.
Dunne filed a motion for summary judgment, arguing it commenced drilling a well on July 14, 2000. It further claimed it had entered into a drilling contract and had begun the necessary work to begin drilling the well prior to the lease’s expiration date.
After a hearing on the motion, the district court found the drilling by the small rig on July 14, 2000, and the setting of conductor pipe constituted a commencement of drilling. The district court granted summary judgment on all three counts.
Bunnell claims the district court erred in granting Dunne’s summary judgment motion.
“ ‘Summaiy judgment is appropriate when the pleading[s], 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. . . . On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
As noted above, the sole issue presented in this case is whether Dunne commenced drilling before the end of the primary term. This issue requires an interpretation of the lease language, and this court is free to determine the lease’s legal effect regardless of the construction made by the district court. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). “Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. [Citation omitted.] The intent of the parties is determined from the four corners of an unambiguous instrument, harmonizing the language therein if possible.” Hall v. JFW, Inc., 20 Kan. App. 2d 845, 848, 893 P.2d 837, rev. denied 257 Kan. 1092 (1995).
Bunnell argues Dunne did not commence drilling in a timely manner because Dunne did not obtain approval from the KCC to begin drilling until after tire lease had expired and the drill used to begin drilling on July 14 was incapable of drilling to the required depth. Bunnell claims this drilling represented a pretense on Dunne’s part of actually commencing drilling in an effort to save the lease.
Kansas has, on occasion, been faced with the question of what constitutes commencement of drilling. In Herl v. Legleiter, 9 Kan. App. 2d 15, 668 P.2d 200 (1983), the lessee was required to “commence to drill a well” by March 27, 1981, in order to maintain the right to drill the well to its completion. On March 27, 1981, no drilling rig was on the property; however, other preparation work had been undertaken, including construction of an access road, staking of the location, construction of pits at the site, and delivery of mud to the well site.
In affirming the district court’s decision that the lessee did not commence to drill a well in a timely fashion, this court in Herl found it important that the lessee did not have a driller with a rig or access to one and did not make an effort after the deadline passed to obtain one. 9 Kan. App. 2d at 17-18. The court refused to consider whether actual drilling must occur when lease language calls for drilling to be commenced, or whether there is a meaningful difference between “commence to drill a well,” “commence operations to drill a well,” and “commence drilling operations.” 9 Kan. App. 2d at 18-19.
More recently, in Hall, this court was again faced with an oil and gas lease requiring the lessee to “commence to drill” a well before a particular date. The lessee began preparatory work several months in advance of the August 13, 1991, date required to preserve the lease. Drilling on the well began August 14, 1991.
The court stated that after Herl, there was authority that hinted something less than actual drilling might satisfy a requirement of the “commencement of drilling.” 20 Kan. App. 2d at 850. The court also cited Professor David Pierce, who noted in the Kansas Oil and Gas Handbook that Herl suggested something less than actual drilling may be sufficient, but if a lessee is relying upon something less than actual drilling, “ ‘the lessee should be required to demonstrate what amounts to an irrevocable commitment to conduct operations, to completion, on the leased land.’ ” 20 Kan. App. 2d at 851 (quoting 1 Pierce, Kansas Oil and Gas Handbook § 9.34 [1991]). The best evidence would be an enforceable contract with a third party to drill a well. 20 Kan. App. 2d at 851 (citing 1 Pierce, Kansas Oil and Gas Handbook § 9.34 [1991]).
Addressing this perception, the court stated: “Allowing an irrevocable commitment to conduct operations to completion to satisfy a lease requiring the commencement of drilling, and not merely operations for drilling, too broadly states the law of Kansas.” 20 Kan. App. 2d at 851. Reading the plain language of the lease requiring the lessee to “commence to drill a well” by the stated date and finding that the actions of the lessee after the stated date in completing the well were irrelevant to determine timeliness of commencement, the court determined drilling had not commenced within the term of the lease and reversed the district court’s granting of summary judgment in favor of the lessee. 20 Kan. App. 2d at 851-52.
Bunnell argues that after this court’s rejection of the reasoning of Herl in Hall, the appropriate standard for considering commencement clauses is actual drilling with an appropriate rig. Bunnell claims Dunne did not meet this requirement because its second notice of intent to drill was not filed until the day the lease expired and the small rig used by Weeder Well Services to drill the 51-foot hole was incapable of drilling more than 200 feet deep on a proposed 6,500-foot well.
It does appear that the standard in Kansas after Hall is that at least some type of actual drilling must occur by a lease’s expiration date to satisfy a requirement of commencement of drilling. Hall does not state, as Bunnell claims, that drilling must be commenced with an appropriate rig. It also does not require a well to be completed by the expiration date.
“When analyzing whether a lease has terminated because the lessee has not timely commenced a well, our Supreme Court has looked to the language of the controlling instrument, reading it as whole, to determine the nature and extent of the lessee’s obligation.” Hall, 20 Kan. App. 2d at 849. The lease language in the present case required Dunne to commence to drill a well within the term of the lease.
A second question related to the commencement of drilling pertains to the filing of the second notice of intent to drill. K.A.R. 82-3-103(a)(2) provides that a drilling applicant shall file the notice of intent at least 5 days before any drilling is commenced. K.A.R. 82-3-103(d) states that drilling shall not commence until Kansas Corporation Commission (KCC) approval is granted. The second notice in the present case was filed on July 14, 2000, and showed an expected drilling date of July 17,2000. It was approved by the KCC on July 19, 2000. Timothy Sanders, managing member of Big A, stated in an affidavit that he prepared a notice of intent in the days immediately preceding the termination date, and it was later determined the location would need to be moved because of the waterway. He stated the second notice was then filed on July 14, 2000.
This scenario differs from Hall, where KCC approval was obtained prior to drilling. Here, KCC approval was not granted until July 19, but Weeder Well Services commenced preliminaiy drilling on July 14. Dunne asserts it filed a timely application and provided tire KCC with all appropriate information prior to the expiration date. Dunne also argues the administrative regulation on notice requirements does not affect the plain language of the lease and is not cause for forfeiture.
Bunnell likely would have not been able to bring an action on the lease based solely on an alleged violation of K.A.R. 82-3-103 without first seeking a remedy through the KCC. The KCC apparently did not penalize Dunne for any improper drilling, and the notice issue, while interesting, is not dispositive of this case.
Dunne commenced drilling on July 14, 2000, the lease’s expiration date. Dunne does not deny the rig used to drill that day was not capable of drilling the well to the desired depth. Dunne claims that using a smaller rig to begin drilling a well is not uncommon and that the lease provision requiring drilling to commence at a certain time would have contemplated this type of activity. Dunne also points out that this well was eventually completed. Bunnell argued to the district court that finding the small rig used in this case satisfied an “actual drilling” requirement would allow a lessee to move onto leased property the day before the lease expires, dig a 5- or 10-foot hole with a small tractor, and claim actual drilling had occurred.
Dunne cites Cosden v. Carter Wolf Drilling Co., 183 F.2d 761 (10th Cir. 1950), for the proposition that the preliminary drilling by the smaller rig constituted actual drilling. Cosden did hold that preliminary digging constituted commencement of drilling in that case. 183 F.2d at 764. Our research revealed no Kansas cases discussing this specific issue. However, Dunne’s position, while not supported with an abundance of authority, is backed up by what little case law exists and the plain language of the lease. The language of the lease required Dunne to commence drilling, and, in the absence of evidence from Bunnell that the small-rig drilling was not necessary to the completion of the well or in accordance with standard drilling practices, the district court properly granted summary judgment.
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Green, J.:
This case involves a medical negligence action. Darcy Matthew Smith initially sued Michael L. Kennedy, M.D., and Coffey County Hospital (CCH), claiming that they negligently treated him for injuries he received in a motorcycle accident. Smith later filed an amended petition replacing CCH as a defendant with the Board of Trustees of the Coffey County Hospital (Board). The Board moved to dismiss the action, maintaining that Smith had failed to comply with the claim provision statute of K.S.A. 12-105b. Agreeing that Smith had failed to comply with the statute, the trial court dismissed the action without prejudice as to Kennedy and the Board. On appeal, Smith argues that because the requirements of K.S.A. 12-105b were fully satisfied, the trial court erred in dismissing his action. We reverse.
The facts of this case are undisputed. On August 12,1995, Smith was injured in a motorcycle accident. He was initially treated by Kennedy at CCH. Later, he was taken to the KU Medical Center where his right leg was amputated.
Alleging negligent treatment at CCH, Smith sent identical notices of claim to Vernon Birk, Coffey County Clerk, and Dennis George, chief executive officer of CCH. The notices were dated December 10, 1996. On May 5, 1997, Smith sued CCH and Kennedy in his capacity as a hospital employee. On July 25,1997, Smith filed an amended petition, substituting the Board as a named defendant for CCH.
On August 12, 1997, Smith faxed a notice of claim to the chairman of the Board. Although the trial court determined that this notice to the Board was valid, the trial court concluded that it was ineffective because there was no showing that the Board had denied the claim or that 120 days had elapsed before the amended petition was filed. The trial court determined that this condition precedent must be met before a party may file a tort claim against a municipality.
In addition, the trial court determined that the December 10, 1996, notices to Birk and George were inadequate. Because the August 12,1997, notice to the Board is currently an issue in federal court, it will not be addressed by this court.
On appeal, Smith argues that the trial court erred in dismissing his claims because the notices to Birk and George comply with the statute’s requirements or alternatively constitute substantial compliance. This issue raises a question of statutory interpretation, which is a question of law over which this court has unlimited review. King v. Pimentel, 20 Kan. App. 2d 579, 589, 890 P.2d 1217 (1995); Tucking v. Board of Jefferson County Comm'rs, 14 Kan. App. 2d 442, 444, 796 P.2d 1055, rev. denied 246 Kan. 770 (1990).
K.S.A. 12-105b provides, in relevant part:
“(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed, with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employees involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.” (Emphasis added.)
K.S.A. 12-105a defines municipality and governing body as follows:
“(a) ‘Municipality’ means and includes county, township, city, school district of whatever name or nature, community junior college, municipal university, drainage district, cemetery district, fire district, and other political subdivision or taxing unit, and including their boards, bureaus, commissions, committees and other agencies, such as, but not limited to, library board, park board, recreation commission, hospital board of trustees having power to create indebtedness and make payment of the same independently of the parent unit.
“(b) ‘Governing body’ means and includes the board of county commissioners, the governing body of a city, the township board (trustee, clerk and treasurer), board of education or other governing body of a school district, board of trustees of a community junior college, board of regents of a municipal university, the body of a special district (such as a drainage, cemetery, fire or other) which has the power to create indebtedness and is charged with the duty of paying the same, and the board, bureau, commission, committee or other body of an independent agency of a parent unit.”
The parties agree that the notice requirements in K.S.A. 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality. See 14 Kan. App. 2d at 445. However, the parties disagree as to whether Smith met the notice requirements by serving notices upon Birk and George. At the hearing on the motions to dismiss, the Board argued, and the trial court agreed, that as defined in K.S.A. 12-105a, the Board is both a municipality and its own governing body. Smith argues that this conclusion is erroneous and insists that the Board of County Commissioners is the governing body of the Board. Maintaining in his brief that the Board cannot govern itself and that it must, therefore, be governed by the Board of County Commissioners, Smith stated:
“K.S.A. § 12-105a defines ‘municipality’ to include a ‘hospital board of trustees.’ Tl us, the Board of Trustees of Coffey County Hospital as a ‘municipality is entitled to K.S.A. § 12-105b notice. The statute states that ‘“governing body” means and includes the board of county commissioners.’ K.S.A. § 12-105a. Thus, the Coffey County Commissioners are a governing body. The K.S.A. § 12-105a definition of a ‘governing body,’ however, does not list a ‘hospital board of trustees’ which is defined as a municipality. K.S.A. § 12-105a includes ’hospital board of trustees’ in the definition of ‘municipality’ but omits a similar reference in the definition of ‘governing body’. Thus, the statutory scheme recognizes that there has to be some other entity which governs the board of trustees of a hospital. That ‘governing body’ is the entity which set up the trustees and which provides for the board’s compensation — the board of county commissioners.
“K.S.A. § 19-4605 provides that the county commissioners shall appoint or provide for the election of a hospital board, and K.S.A. § 19-4609 provides that the board of county commissioners provides for hospital board members’ compensation. The county commissioners established, set up and managed the defendant hospital board of trustees and the commissioners are clearly the governing body of the board of trustees of Coffey County Hospital.
“KS.A. § 19-4601(c) provides that the daily management of the hospital is controlled by the board of trustees of the hospital. Therefore, the trustees control the hospital. . . . Clearly the board of trustees, a municipality, is not the governing body of the board of trustees. The trustees cannot govern themselves. In defining governing body of a municipality, K.S.A. § 12-105a contemplates an outside entity which would govern the hospital board of trustees .... The county commissioners are responsible for creating setting up, appointing and compensating the board of trustees of the hospital. Clearly they have the power to create and do away with the board of trustees and are the governing body as defined under K.S.A. § 12-105a ....
“Plaintiff provided written notice to Vernon Birk, Clerk of the Coffey County Board of Commissioners, on December 11,1996. Service of written notice on the clerk of the board of county commissioners is service on the ‘governing body of the Board of Trustees of Coffey County Hospital and provides adequate notice as required by K.S.A. § 12-105b.” (Emphasis added.)
Conversely, the Board argues that the plain language of K.S.A. 12-105a(b) makes it CCH’s “governing body.” In addition, the Board argues that K.S.A. 12-105a(a) makes it a “municipality.” Under K.S.A. 12-105a(a), a municipality includes a county and also includes its “hospital board of trustees having power to create indebtedness and make payment of the same independently of the parent unit.” K.S.A. 12-105a(b) defines a governing body as “the board of county commissioners ... or other body of an independent agency of a parent unit.”
Although K.S.A. 12-105a(a) specifically mentions hospital board of trustees, K.S.A. 12-105a(b) fails to mention a hospital board of trustees. A hospital board of trustees, however, does fit within the definition of governing bodies listed in the, final clause of K.S.A. 12-105a(b). When a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). Based upon the statutory language, the trial court correctly concluded that the Board is CCH’s governing body.
Nevertheless, Smith argues alternatively that his notices to Birk and George constitute substantial compliance with K.S.A. 12-105b(d) and quotes Cook v. Topeka, 75 Kan. 534, 536, 90 Pac. 244 (1907), for support. In Cook, the claimant filed a notice of claim in which he misdescribed the location of his injury. The Cook court held that the notice achieved the statutory purpose notifying the city of the claim and, thus, the claimant had sufficiently complied with the statute. The court explained:
‘The object of filing this statement is to inform the city of the accident, and the place in the street where it occurred, that the city may remove the obstruction from the street or alley or mend the place causing the accident, and also to give the city an opportunity to ascertain the extent of the complainant’s injuries and the incidents attending the happening of the accident while the occurrence is fresh in the minds of those who possess information on the subject.
“The statement filed in this case was defective in its description of the place where the accident happened, but in that respect it was sufficient to challenge the attention of the city, for it immediately instituted an investigation, which resulted in definitely locating the place where the accident happened, and it removed from the alley the obstruction which caused the plaintiffs wagon to overturn. After having definitely located the place and removed the obstruction the city considered and rejected the plaintiffs claim as for an injury sustained by his wagon’s having been overturned by coming in contact with an obstruction in the alley next east of Washburn avenue, about 100 feet from Twelfth street. This is where the accident occurred.
“The statute requiring a statement to be filed with the clerk is mandatory; that is, no action can be maintained until such statement is filed; but with respect to the details of the statement precise exactness is not absolutely essential. If it reasonably complies with the statute, and the city is not misled to its prejudice by any defects of description of the place where the accident happened, the city has no reason to complain. The statement filed in the present case accomplished the object of the statute.” (Emphasis added.) 75 Kan. at 536.
Maintaining in his brief that his notice to George met the statute’s purpose because it supplied the Board with actual notice of his claim, Smith stated:
“The chief executive officer of the hospital had actual notice of plaintiff s claims. The county commissioners who set up and operate the board of trustees of the hospital had actual notice of plaintiff's claims. The defendant had all of the information necessary to investigate the merit of plaintiffs claims in a timely manner. . . .The purpose of the statute is to provide the municipality an opportunity to investigate the incident at the time while the occurrence is still fresh in the minds of those possessing knowledge on the subject. Plaintiffs notice to the chief executive officer of the hospital and the county commissioners fulfilled the purpose of the statute.”
On the other hand, the Board argues that the substantial compliance language in K.S.A. 12-105b is inapplicable to the governing body to be served, and refers only to the content of the notice. For support, the Board cites Hibbs v. City of Wichita, 176 Kan. 529, 271 P.2d 791 (1954); Mowery v. Kansas City, 115 Kan. 61, 222 Pac. 126 (1924); and Dechant v. City of Hays, 112 Kan. 729, 732, 212 Pac. 682 (1923), and argues that these cases rest “upon the proposition that service of notice upon a person or entity other than that specified by statute was the legal equivalent of no service at all.”
Although these cases provide some support for the Board’s argument, Dechant and Mowery are not exactly on point. In Dechant, a child received a severe shock from an electric wire. In its petition, the family stated that within 30 minutes, the city manager learned of the accident, visited the boy, and was fully informed concerning the facts of the accident. Significandy, before bring suit on the boy’s behalf, the family neglected to file the notice required under the previous version of K.S.A. 12-105b. In response to the city’s demurrer, the family argued alternatively that the statute’s notice requirements should not apply to a minor and that the city manager’s actual knowledge constituted a waiver of the notice requirement. The Dechant court found neither argument persuasive and affirmed the trial court’s dismissal of the suit. Rejecting the plaintiff s waiver argument, the court stated:
“Appellant further contends that should the statute be construed as applicable to appellant, the petition sets forth facts sufficient to constitute a waiver of such notice and an estoppel to assert same on the part of the city. It will be noted that there is no condition of waiver or estoppel in the statute itself. In view of the various officials and employees which a city may and necessarily does have, to transact the business of its government, it would be a dangerous and uncertain provision to interpret into a statute. Certainly, if the legislature desired or contemplated that the provisions of this statute might be waived, it should have designated the official and the manner in which such waiver might be effected. No officer of the city had power or authority to waive this statutory notice.” 112 Kan. at 732.
Similarly, in Mowery, the plaintiff filed a notice of claim with the City of Kansas City, but included the wrong accident date. Affirming the district court’s dismissal of the plaintiff s case, the Mowery court held that the notice containing the erroneous accident date did not meet the statute’s notice requirement. The plaintiff also argued that the investigating officer’s report constituted notice under the statute. Predictably, in rejecting this argument, the Mowery court stated:
“It is suggested by appellant that notice to a police officer who investigated the matter and his report thereof to the chief of police should be construed as a sufficient compliance with the statute. With this we cannot agree. . . .
“[I]n this case the report of the policeman did not disclose any liability on behalf of the city for injuries inflicted by a mob or for any other reason, nor did it disclose that plaintiff claimed damages by reason thereof. . . . The statute requires a written statement to be filed with the city clerk. This is not a great burden to put upon a claimant and must be complied with.” 115 Kan. at 62.
Finally, Hibbs, which provides the most direct support for the Board’s argument that the statute requires that the proper “governing body” be served, predates the substantial compliance language included in the current version of the statute. In Hibbs, the plaintiff filed a petition in which he stated that he had served a notice of claim upon “the governing body of the City of Wichita.” 176 Kan. at 531. Ironically, the version of K.S.A. 12-105b then in effect specifically required that a notice of claim be filed with the city clerk Holding that the notice described in the petition was insufficient, the Hihbs court reversed the trial court’s order overruling the defendant’s demurrer for failure to state a claim. In doing so, the court held that the requirement that the city clerk be served was as important as the substantive requirements and equally mandatory. The court stated:
“[RJecognizing our decisions are uniform to the effect that failure of a petition to disclose the filing of the statement required under the provisions of 12-105, supra, renders such pleading demurrable for failure to state a cause of action, appellee’s next contention seeks to overrule those decisions. In any event it seeks to avoid their force and effect. He suggests they all deal with situations where the statement was filed with the city clerk too late or where no statement at all, giving the city notice of the claim, was presented to some member of the governing body of the city, hence they are not to be regarded as controlling precedents. Otherwise stated, that the filing of the statement with the city clerk himself, or at least with that office, is not a part of the condition precedent established by the legislature. We believe that question has been determined adversely to appellee’s contention by the decisions heretofore cited, particularly by the statement quoted from Cook v. Topeka, supra, and the emphasized language of the portion of the opinion quoted from Mowery v. Kansas City, supra. Be that as it may, and assuming the point has not been specifically determined, we are convinced the filing of the statement with the city clerk is just as much, and just as vital, a condition precedent to the maintenance of the action as the condition prescribing the period of time within which such statement must be filed and we so hold." (Emphasis added.) 176 Kan. at 535.
Although these cases arguably support the Board’s argument that the proper party must be served, they predate the legislature’s addition of the “substantial compliance” language to the statute. When the legislature revises an existing law, it is presumed the legislature intended to change the law as it existed prior to the amendment. State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998); Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 871, 936 P.2d 297, rev. denied 262 Kan. 962 (1997). Significantly, there are no Kansas cases addressing the impact of the substantial compliance language upon the requirement that a municipality’s governing body be served with a notice of claim.
However, the federal courts have touched on this issue. In Huffman v. City of Prairie Village, KS, 980 F. Supp. 1192 (D. Kan. 1997), the plaintiff worked for the Prairie Village Police Department. Alleging sex discrimination, the plaintiff sued the depart ment and the City of Prairie Village for intentional infliction of emotional distress after serving the city attorney with a notice of claim. In determining whether the notice sufficiently complied with K.S.A. 12-105b, the Huffman court noted the dearth of Kansas cases on this issue and turned to cases from other jurisdictions construing similar statutes. Importantly, the court acknowledged a split of authority as to whether notice to a city attorney is sufficient to comply with such statutes but concluded that Kansas courts would find the notice insufficient. The court reasoned:
“The court has not discovered a case in which Kansas courts have considered whether notice to the City Attorney is sufficient to comply with the requirements of the K.S.A. 12-105b. However, in several older cases involving a statute similar to K.S.A. 12-105b, the Kansas courts have concluded that notice filed with the Clerk is a condition precedent to filing an action against a municipality, and the fact that city officials may be aware of the incident or the claim would not enable such officials to waive the requirements of the statute. See Howell v. City of Hutchinson, 177 Kan. 722, 282 P.2d 373, 377 (1955); Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682 (1923).
“Other states that have similar notice requirements have considered the issue of whether service of the notice on a City Attorney substantially complies with the notice statute. These courts have reached differing results. Compare Long v. Knoxville, 62 Tenn. App. 665, 467 S.W.2d 309 (1970) (letter to city attorney was insufficient to comply with notice statute that required notice to mayor); McGuire v. Hennessy, 292 Minn. 429, 193 N.W.2d 313 (1971) (notice of claim sent to city attorney was inadequate to comply with notice statute that required notice to governing body) with Jenkins v. City of Wilmington, 45 N.C. App. 528, 263 S.E.2d 343 (1980) (notice of claim sent to city attorney and city manager was sufficient where notice statute required notice to city council).
“Given the Kansas law on this issue, although it is not directly on point, we are persuaded by the defendant’s argument. The Kansas statute is worded clearly, and we do not find that notice sent to the City Attorney constitutes substantial compliance with its requirements. The decisions by the Kansas Supreme Court in Howell and Dechant suggest this result. Accordingly, we find that the defendant is entitled to dismissal of plaintiffs intentional infliction of emotional distress claim.” 980 F. Supp. at 1206.
On the other hand, in Tank v. Chronister, 941 F. Supp. 969 (D. Kan. 1996), the court denied the hospital’s motion to dismiss based upon a failure to meet K.S.A. 12-105b notice requirements. The husband of a deceased patient sued the Board of Trustees of the Wilson County Hospital and the treating physician for medical mal practice. The husband dismissed his initial lawsuit and refiled several months later. Significantly, the husband failed to file a notice of claim. Nevertheless, the court determined that the service of the first petition constituted substantial compliance with the statute’s notice requirements. The court stated:
“[T]he hospital makes an extensive argument that the EMTALA [Emergency Medical Treatment and Active Labor Act] and state medical malpractice claims should be dismissed because the plaintiff failed to comply with K.S.A. 12-105b(d), providing for prior notice of claims to municipalities and their agencies. The plaintiff makes an even more extensive response, arguing that the hospital waived the requirements of the statute, that federal law precludes application of K.S.A. 12-105b to the EMTALA claims, and that in any event there was substantial compliance with the provisions of the notice statute.
“Having reviewed all the arguments, the court finds that the plaintiff substantially complied with the terms of the notice statute. . . .
“Prior to filing the present action, the plaintiff filed a separate action against the hospital to preserve access to Kathleen Tank’s medical records, and this action and the associated pleadings serve as notice that an action for damages would follow. By its express terms, the notice statute requires only substantial compliance .... ‘Substantial compliance’ under Kansas law means ‘compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.’ City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983). The notice statute at issue here requires that a claimant ‘makes an attempt to state each element required of the notice.’ Wiggins v. Housing Auth. of Kansas City, 19 Kan. App. 2d 610, 613, 873 P.2d 1377, rev. denied, 255 Kan. 1007 (1994) (citing Tucking v. Board of Jefferson County Com’rs, 14 Kan. App. 2d 442, 796 P.2d 1055, rev. denied, 246 Kan. 770 (1990)).
“[T]hrough the pleadings submitted by counsel for Tank in connection with the action for injunctive relief and through other correspondence, the administrators of defendant hospital were presented with information relevant to all of the key elements of K.S.A. 12-105b(d): the identity and addresses of the parties involved, the nature of the incident, the injury suffered, and that a substantial claim for damages would be advanced. Thus, tile hospital and its agents were given information relating to all of the elements cited in K.S.A. 12-105b(d). The plaintiff here clearly fulfilled the purpose of the statute by giving a clear indication to the hospital of the claim that would be raised against it, along with information which would allow the hospital to adequately investigate the basis for that claim.” 941 F. Supp. at 974-75.
Although it is unclear whether the governing body of the hospital was actually served with the husband’s first petition, Tank focuses upon the fact that the hospital had sufficient notice to investigate the facts of the incident. Tank implies that the hospital’s actual notice constitutes substantial compliance under the statute. As a result, Tank offers some support for Smith’s argument that his service of a notice of claim upon George provided the hospital with actual notice constituting substantial compliance under the statute.
The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim. Here, the notices of claim were sent to George, chief executive officer of CCH, and Birk, the clerk of the Board of County Commissioners of Coffey County. Under K.S.A. 12-105a, the Board of County Commissioners of Coffey County is the parent unit of CCH. In addition, the CCH notices furnished the essentials of the statute. As a result, we conclude that notices to George and Birk substantially complied with the notice provisions of K.S.A. 12-105b.
Finally, the Board and Kennedy also argue alternatively that the information contained in Smith’s notices are substantively insufficient to meet the 12-105b requirements. We disagree. Moreover, this argument was not presented to the trial court and is, therefore, not properly before this court. Significantly, the parties failed to make this argument in their motion to dismiss and during the hearing on the motion. See also Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, Syl. ¶ 8, 912 P.2d 729 (1996) (“A new legal theory may not be asserted for the first time on appeal or raised in a reply brief.”); State v. Trotter, 245 Kan. 657, Syl. ¶ 1, 783 P.2d 1271 (1989) (a record which fails to show an issue was raised before the trial court precludes consideration of that issue on appeal).
Reversed. | [
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Leben, J.;
This case presents the question of whether a criminal defendant is entitled to a jury trial in a trial de novo before a district judge when a jury trial was previously afforded in a trial before a district magistrate judge. We answer in the affirmative and remand for a juxy trial before a district judge.
The defendant, David Lynn Wright, was convicted in a trial before a magistrate judge of disturbing the peace, battery of a law enforcement officer, obstruction of legal process, fleeing and eluding, reckless driving, and running a stop sign. About 3 weeks before trial, the defendant requested a jury trial. The magistrate judge proceeded to try the case with a jury, and the defendant was convicted.
The defendant then properly appealed the decision to the district court pursuant to K.S.A. 1998 Supp. 22-3609a. Under that statute, “[t]he case shall be tried de novo before the assigned district judge.” The assigned judge ruled that he would review only the legal rulings made by the magistrate judge, deferring to the factual conclusions made by the jury. Wright appeals, contending that he was entitled to a complete new trial on the facts and law, with a jury, before the district judge. We agree.
When a statute provides for review of a magistrate judge’s decision de novo by a district judge, the matter is to be tried before the district judge just as if no trial had initially been had before the magistrate. In re K.J., 242 Kan. 418, 419, 748 P.2d 419 (1988). This is the very definition of a de novo trial, as Black’s Law Dictionary attests: “Trying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered.” Black’s Law Dictionary 435 (6th ed. 1990). When the legislature wants to have some form of “on the record” review performed by the district court, it may — and must — explicitly say so. See In re J.H., 25 Kan. App. 2d 372, 962 P.2d 1127 (1998). See also K.S.A. 1998 Supp. 20-302b(c) (appeal from final order of magistrate judge “shall be tried and determined de novo by a district judge”).
The State argues — and the trial court ruled — that Wright’s jury trial rights had been met when he was provided a jury trial before the magistrate. However, this ignores the statutory mandate that the trial be conducted de novo. That cannot be accomplished unless the facts and the law are determined in the de novo trial, and Wright is entitled to have a jury determine the facts.
In our experience, the question presented here is usually avoided by the common practice in many judicial districts of automatically reassigning a case from a magistrate to a district judge upon a request for jury trial having been made. There does not appear to be anything in' the statutes to preclude the empaneling of a jury in a trial presided over by a magistrate. However, as this case makes clear, there is the possibility in such a case that a second jury trial will need to be held before a district judge under the statutory scheme.
Two other issues presented on the appeal must be decided. First, Wright contends that the city police officer was without authority to use a uniform notice to appear requiring Wright’s appearance in the district court. Second, Wright contends that his statutory speedy trial right has been violated. Because we find no merit to these arguments, the case will be remanded for jury trial before the district court.
Wright’s argument that a city police officer cannot require his appearance in a district court rests on the misconception that the city officer has no status greater than a private citizen when attempting to enforce state laws. Here, the uniformed officer observed the violations and cited Wright within the city limits for the violations. He then issued a uniform notice to appear, requiring Wright’s appearance in the district court of that county.
A uniform notice to appear may serve as a valid complaint. K.S.A. 1998 Supp. 8-2106; State v. Boyle, 21 Kan. App. 2d 944, 945, 913 P.2d 617 (1996). The city and state have concurrent jurisdiction for offenses that constitute violations of a city ordinance and a state statute. State v. Frazier, 12 Kan. App. 2d 164, 736 P.2d 956 (1987). K.S.A. 22-2408 allows law enforcement officers, which includes city police officers, K.S.A. 22-2202(13), to serve a written notice to appear. “The place specified in such notice to appear must be before some court within the county in which the crime is alleged to have been committed which has jurisdiction of such crime.” K.S.A. 22-2408(3). There are no statutes precluding a city police officer from ordering a party to appear in district court.
Wright filed his motion to dismiss on speedy trial grounds on December 3,1997,219 days after he filed his April 28,1997, notice of appeal from the jury verdict before the magistrate. The motion was ultimately dismissed on April 14,1998, when the district court both reviewed the magistrate’s legal rulings from the initial trial and ruled on the speedy trial motion. Thus, the district court ruled on this motion and the entire case almost 1 year after the jury convictions, which occurred on April 21, 1997.
The statutory right to a speedy trial applies in de novo appeals from a district magistrate judge to a district judge pursuant to K.S.A. 22-3402. In cases in which a trial de novo is available following an initial trial, K.S.A. 22-3402 requires that the defendant be brought to trial within 180 days of docketing of the appeal in the court before which the de novo trial will occur. See City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979) (in appeal from municipal court to district court, time period of K.S.A. 22-3402 commences on docketing of appeal in district court). Here, then, the 180-day period began to run on April 28, 1997, when Wright filed his appeal to the district court. Unless the delay is excused for some valid reason, the 180-day time period would have expired on October 25, 1997.
The State contends the delay was a result of Wright’s request for a jury trial and the delay in getting the transcript. A transcript of the magistrate jury trial was required based on the district judge’s ruling that he would review only the legal rulings made by the magistrate, which necessitated a transcript of the earlier proceedings. The district court agreed with the State’s contention and denied the motion.
Before setting a hearing on the merits of the case, the district judge had to wrestle with the second jury trial issue. Wright filed his motion for a jury trial before the district court on May 13,1997. That motion was ruled upon 57 days later, on July 9,1997, but the trial court’s ruling — that a jury would not be provided in the second trial, but that a transcript of the original trial needed to be prepared to review the magistrate’s legal rulings — signaled further delay to prepare and review that record. Delays that are the result of the application or fault of the defendant are not to be counted in computing the time period. State v. Prewett, 246 Kan. 39, 785 P.2d 956 (1990). Delay caused by a defendant filing motions has been chargeable to defendant when such motions would cause a conceivable delay. Here, it was conceivable Wright’s motion for a jury trial would result in a delay because it presented a novel issue regarding entitlement to a second jury trial under de novo review. That the trial judge’s ruling on that issue was in error does not change the analysis for the purpose of determining whether the defendant’s speedy trial rights have been violated. Thus, the delay resulting from this motion, which includes both the 57-day period between filing and deciding of the motion for jury trial and a substantial portion of the time thereafter that was required for preparation of the transcript and review of the magistrate’s rulings and the sufficiency of the evidence, is chargeable to Wright.
Adding just the 57-day period would take the deadline to December 21,1997. Wright filed his motion to dismiss on speedy trial grounds on December 3, 1997.
After the motion to dismiss on speedy trial grounds was filed, Wright filed for several continuances and changed attorneys. Wright’s latest continuance was requested as late as March 25, 1998. Therefore, much of the delay after the fifing of the motion to dismiss also is chargeable to Wright. We find no violation of his statutory right to a speedy trial.
The remaining issues briefed by the parties are moot in fight of our ruling that Wright is entitled to a new trial.
Reversed and remanded for jury trial. | [
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Anderson, J.:
Appellant Stauffer Communications, Inc., appeals the verdict of $2,500 in favor of appellee Derek Haskell for invasion of privacy arising out of the publication of a news article in the Dodge City Globe.
On September 2, 1994, the Dodge City Globe printed an article with the headline, “WANTED - Recent poster evokes memories of town’s Wild West era.” The article reported the appearance within Dodge City of posters resembling old-fashioned ‘Wanted” notices, which bore a photograph of Haskell. The text of the poster revealed his penchant for carrying unconcealed weapons in public, suggested he should be incarcerated or committed, listed various news articles and law enforcement-agencies to which one could refer for more information, and suggested a reward.
The news article included a picture of the poster. The news article clarified that Haskell was not wanted by law enforcement and that carrying unconcealed weapons is legal. It included statements from the Dodge City police chief discussing Haskell’s legal but frightening behavior and mentioning the context of the Dodge City wild west image.
On August 31, 1995, Haskell sued Ted Harbin, the reporter; Stauffer Communications, Inc., owner of the Dodge City Daily Globe; and John Doe and Richard Roe for defamation, outrage, and infringement of his constitutional right to bear arms. John Doe and Richard Roe are defendants whose names are unknown by Haskell. They are charged with printing, publishing, and displaying the posters. Later, Haskell amended the petition to include an invasion of privacy claim. Following a May 1997 trial, a juiy awarded Haskell $2,500 on a misappropriation of name or likeness claim, one of the four bases for invasion of privacy recovery enumerated in PIK Civ. 2d 14.61.
Stauffer argues the district court failed to properly instruct the jury on the misappropriation claim.
“ ‘ “It is the duty of the trial court to properly instruct the jury upon a party’s theory of die 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 togedier and read as a whole, and where they fairly instruct die juiy on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and die juiy could not reasonably be misled by them, the instructions will be approved on appeal.” ’ ” In re Care & Treatment of Hay, 263 Kan. 822, 841-42, 953 P.2d 666 (1998) (quoting Noel v. Pizza Management, Inc., 258 Kan. 3, 12, 899 P.2d 1013 [1995]).
The court, after a juiy instruction conference, decided to use the pattern instructions for the invasion of privacy claim. PIK Civ. 2d 14.61 states in part:
“The right of privacy is invaded if another:
[Intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns and if die intrusion would be highly offensive to an ordinary man;]
[Appropriates to his own use or benefit the name or likeness of anodier;]
[Publicizes matters of a kind highly offensive to an ordinary man concerning the private life of anodier;]
[Publicizes matters which places anodier before the public in a false light of a kind highly offensive to an ordinary man.]”
Plaintiff s amended petition claimed invasion of privacy on three of the four different theories recognized in Kansas: (1) intrusion upon seclusion, (2) appropriation of name or likeness, and (3) false light publicity.
At the jury instruction conference, Stauffer challenged this instruction as not a proper statement of the law. It argued the misappropriation claim should include the newsworthiness privilege and commercial limitation recognized in other jurisdictions. It offered the following alternative instruction:
“In order to recover for diat aspect of Plaintiff s invasion of privacy claim for appropriating Plaintiff s name or likeness, Plaintiff has the burden of proving each of die following propositions:
1. That the Plaintiff s name or likeness was exploited by the Defendant; and
2. That the exploitation resulted in gain to die Defendant.
“The gain to the Defendant must be more than the gain diat comes from selling additional issues of the publication in which die name or likeness appeared.
“It is a defense to a claim for appropriation diat the use of the name or likeness was in connection with communications about matters of legitimate public interest.”
The court declined to use this instruction. It decided to use the PIK instruction. “If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 727 (1997).
Instruction No. 15 given at trial did not match PIK Civ. 2d 14.61. At the jury instruction conference, the court read back Instruction No. 15. It mirrored PIK Civ. 2d 14.61 except it omitted the misappropriation language. Neither party appeared to catch the oversight. The record does not provide any explanation for the omission; it appears, however, the omission was unintentional. The parties and the court intended for the misappropriation language to be included in the instruction as evidenced by the discussion about that part of the PIK.
The verdict form stated:
“2. Appropriation of Name of [sic] Likeness
We, tlie jury, impanelled and sworn in the above entitled case, do, upon our oaths, find for tlie plaintiff Derek Haskell on his claim for Appropriation of Name or Likeness and assess his damages at $2,500.”
That verdict form language labeled the tort, but did not define it.
Stauffer contends the misappropriation instruction should mention the commercial nature of the tort, the right of publicity aspect of the tort, the newsworthiness privilege, and that selling additional copies of newspapers is not sufficient economic gain to the defendant. Stauffer argues that without the additional instruction, the jury arrived at a verdict contrary to the law applied to the evidence at trial. We agree.
The noncommercial publication of matters of public interest by a newspaper is privileged and not subject to an invasion of privacy claim of “misappropriation.”
The appellate courts of Kansas have not before addressed this issue. The origin of this theory of liability and its application in other jurisdictions supports an instruction on the newsworthiness privilege and the limitation to commercial cases.
Case law from other jurisdictions supports giving a jury instruction indicating that an action based on misappropriation is limited to misappropriation for a commercial use. Courts routinely review claims based on a codified right of privacy. These statutes often require that the misappropriation be for advertising or for purposes of trade before there is liability. See Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847 (1980); Murray v. New York Mag. Co., 27 N.Y.2d 406, 318 N.Y.S.2d 474, 267 N.E.2d 256 (1971); Martinez v. Democrat-Herald Publishing Company, Inc., 64 Or. App. 690, 669 P.2d 818, rev. denied 296 Or. 120 (1983). Additionally, PIK Civ. 2d 14.61 mirrors Restatement (Second) of Torts § 652A (1977). Froelich v. Adair, 213 Kan. 357, 516 P.2d 993 (1973) (Restatement definition of invasion of privacy adopted by Kansas). Restatement (Second) of Torts § 652C, comment d (1977), states:
“Tlie value of the plaintiff s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is die value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for die purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness.”
The facts of this case indicate the lack of an instruction regarding the commercial nature of this tort misled the jury. Consequently, the district court erred in refusing to instruct the jury on this limitation.
Several jurisdictions also recognize a newsworthiness privilege. See, e.g., Cal. Civ. Code § 990 (West 1999 Supp.). The United States Supreme Court has held protection from invasion of privacy gives way to the right of the press to publish matters of public interest. Time, Inc. v. Hill, 385 U.S. 374, 384, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). To avoid a collision between rights, some jurisdictions have recognized First Amendment protection against misappropriation claims for a person’s name or likeness appearing in news articles. If a communication is about a matter of public interest and there is a real relationship between the plaintiff and the subject matter of the publication, the matter is privileged. Ault v. Hustler Magazine, Inc., 860 F.2d 877, 880 (9th Cir. 1988), cert. denied 489 U.S. 1080 (1989); Lane v. Random House, Inc., 985 F. Supp. 141, 146 (D.D.C. 1995); see generally Annot, 30 A.L.R.3d 203, 222-32.
The cases uniformly apply the newsworthiness privilege to matters published by the media even though they are published to make a profit. See Jenkins v. Dell Publishing Company, 251 F.2d 447 (3rd Cir. 1958); Mendonsa v. Time, Inc., 678 F. Supp. 967 (D.R.I. 1988); Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 160 Cal. Rptr. 352, 603 P.2d 454 (1979); Stephano v. News Group Pub., 64 N.Y.2d 174, 485 N.Y.S.2d 220, 474 N.E.2d 580 (1984).
The privilege extends to matters about private individuals that are of interest to the public. Bernstein v. National Broadcasting Company, 129 F. Supp. 817 (D.D.C. 1955); Everett v. Carvel Corp., 70 Misc. 2d 734, 334 N.Y.S.2d 922 (1972).
The facts in this case establish the article was of legitimate public concern. The Dodge City Globe reported the placement of odd posters throughout the city. The article addressed possible public questions or concerns about the content and reason for the posters. There also existed a public safety interest in knowing who is carrying weapons in the open.
Because the article was a matter of legitimate public concern and because Haskell was the focus of the posters, the lack of instruction regarding the newsworthiness privilege misled the jury. Thus, the district court erred in refusing to include this privilege in the instructions.
The verdict and judgment of the district court is reversed. It is ordered that judgment be entered in favor of defendant Stauffer Communications, Inc., as a matter of law. | [
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Wahl, J.:
Fisher & Associates, Inc. (Fisher) appeals the district court’s decision that Fisher was liable for failure to procure insurance coverage for Ronald and Michelle Weinlood’s privacy fence.
Ronald Weinlood contacted Fisher, an insurance agency, in an effort to secure a less expensive homeowner’s policy. Fisher did not provide the insurance policy itself and is not tíre insurer. Fisher acted as Weinlood’s agent and secured an insurance policy for Weinlood through another company.
This action was initially filed in small claims court after Weinlood’s fence was damaged and the insurer refused coverage. Wein lood prevailed in the small claims court and Fisher appealed. Weinlood again prevailed in the district court and Fisher again appeals.
At trial, Weinlood testified that he contacted Fisher and spoke to a licensed insurance agent named Pauline Nicholson. He told Nicholson that his mortgage required him to maintain coverage on the fence surrounding his yard. Nicholson contacted Weinlood the following day and told him she found a policy for him. Weinlood went to the Fisher office where Nicholson and Weinlood filled out an application. She pointed out a portion of one form and explained the fence would be covered in an amount around $5,000. Thirty to forty days later, Weinlood received the insurance policy in the mail. He never read it.
Thereafter, Weinlood’s fence was damaged in a storm. Weinlood called Nicholson and asked that an adjuster be sent, but none was available. Nicholson instructed Weinlood to take pictures of the damaged fence and get an estimate for repair. Weinlood did this and brought the requested items to Nicholson, who said she would forward the claim to the insurer.
The insurer eventually denied coverage because the policy did not include coverage for the fence. Weinlood contacted Nicholson, who, Weinlood testified, seemed shocked to hear the policy did not cover the fence. Weinlood testified the fence was repaired and he owes approximately $1,300 for the repairs. Nicholson testified Weinlood never requested coverage for the fence. After hearing the evidence, the district court awarded damages to Weinlood. Fisher appeals.
Fisher challenges the legal basis for the court’s ruling in favor of Weinlood, arguing Weinlood had a duty to read the insurance policy and since he failed in this duty, Fisher cannot be held liable. We disagree.
The district court, in its ruling, clarified the relationships of the parties in the case:
“Fisher and Associates, Inc., is an independent agency that procures insurance policies on behalf of clients. As such, Fisher is not an agency [sic] for the insurer and cannot bind an insurance company by any of its actions. In this instance, Fisher is actually an agent for the . . . plaintiff. The Court finds that the plaintiff dealt with Pauline Nicholson, who is a licensed sales agent and a long-time employee of Fisher and Associates.”
This is an action against an insurance agent for failure to procure requested insurance, not an action against an insurer.
The district court was correct in concluding Fisher was hable for failing to procure the requested policy. Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 634 P.2d 133 (1981), involved an action by an insured against an insurance agent. The insured requested “complete insurance coverage” on a leased oil well. The insured thereafter suffered a loss not covered by the insurance policy. Despite the fact the insured neither read the policies nor complained to the agent about insufficient coverage, the court found the agent was hable. 6 Kan. App. 2d at 675. The court explained that an insurance agent who procures insurance for another owes the duty to exercise the care, skill, and diligence of a reasonably prudent and competent agent in the same circumstances. 6 Kan. App. 2d at 683.
While the case of Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245 (1911), is factually distinguishable in that the procuring agent was acting as the agent of the insurance company, and the action was for the reformation of an insurance policy, the rulings of the court are informative. Citing prior case law, the court stated:
“In the case of Insurance Co. v. Darrin, 80 Kan. 578, it was held that the insured has the right to assume that the policy he receives is prepared in accordance with his application; that it is the duty of the insurer so to prepare it; and that the fact that the insured does no[t] read the policy until after a loss has occurred will not defeat recovery.” 85 Kan. at 104.
The court held:
“If the insured, or the plaintiff, had discovered the omission from the application and the error in the policy it would have been his duty to call them to the attention of the company and have the necessary corrections made. Delay would have indicated acquiescence, and if sufficiently prolonged might have affected the right to the equitable remedy of reformation. But there is no evidence that the mistakes were discovered until the policy had matured by the death of the insured. Meanwhile, the plaintiff and the insured were not negligent in failing to examine the application or the policy and were justified in supposing that they had been written as contemplated.” 85 Kan. at 105-06.
The district judge properly determined that Fisher was liable for failing to exercise due care in procuring a requested policy for the Weinloods.
Fisher also argues the trial court’s decision finding Fisher liable does not rest on substantial competent evidence. We do not agree. The facts show the decision was supported by such evidence. The evidence was controverted, and the trial judge addressed that in his comments. He had the benefit of observing the witnesses and found Weinlood “to have been a generally credible witness who recalled specific details of the transaction.”
Affirmed. | [
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Lewis, J.:
St. Paul Fire and Marine Insurance Company and the Kansas Health Care Stabilization Fund sued defendant Patricia B. Tyler on a theory of implied indemnity. For the purposes of this opinion, we shall refer to St. Paul Fire and Marine Insurance Company and the Kansas Health Care Stabilization Fund as “St. Paul.” The trial court granted summary judgment in favor of Tyler, and St. Paul appeals.
This lawsuit is one which is bizarre in many respects. In order to understand the claims involved, it is necessary that we consider the' facts of not only this action but of the one that preceded and prompted it.
Dr. A. P. Ramchandani is an M.D. and is engaged in the practice of medicine in Ulysses. He practices as an employee of his professional corporation, A. P. Ramchandani, P.A.
Patricia Tyler, R.N., was an employee of the professional corporation and a co-employee of Dr. Ramchandani.
In 1991, Arlene Ater, a patient of Dr. Ramchandani, went to the clinic for treatment. In the course of treating Ater, Tyler administered an intermuscular injection to Ater. Ater claimed that this injection was negligently administered and caused her sciatic nerve damage, along with considerable pain and suffering.
Ater filed a malpractice action against Dr. Ramchandani. St. Paul, as Dr. Ramchandani’s liability carrier, defended the action. Neither Dr. Ramchandani’s professional corporation nor Tyler were joined as defendants in this action. We also point out that in addition to writing Dr. Ramchandani’s personal liability coverage, St. Paul also wrote the liability coverage for Dr. Ramchandani’s professional corporation.
The malpractice action was tried to a jury. The jury returned a verdict of $1,140,000 against Dr. Ramchandani and in favor of Ater. Ultimately, the parties agreed to settle the judgment for $900,000. The trial court then awarded Ater judgment against Dr. Ramchandani in the amount of $900,000, along with interest and costs. The judgment was paid in full by St. Paul.
The basis of the lawsuit against Dr. Ramchandani was respondeat superior. Dr. Ramchandani did not administer the injection which caused Ater’s damage; Tyler did. However, if Tyler was an employee of Dr. Ramchandani, Dr. Ramchandani would have been held responsible for her negligence under the theory of respondeat superior.
For reasons that we do not understand, the professional corporation and Tyler were never made parties to the malpractice action. If they had been, we would not be dealing with the conundrum which has developed.
As indicated above, Tyler was not a party to the lawsuit, but she did appear as a witness. At one point, St. Paul invited Tyler, through her insurance company, to participate in Dr. Ramchandani’s defense. This offer was declined by Tyler and her insurance carrier.
It develops that the malpractice action was tried on a flawed premise. The fact is, both Dr. Ramchandani and Tyler were employees of the professional corporation. Tyler was not an employee of Dr. Ramchandani; she was instead a co-employee of Dr. Ramchandani. Dr. Ramchandani, accordingly, was not responsible for the negligence of Tyler in administering the injection to Ater. We are not absolutely certain when these facts started to soak in, but it was apparently after the malpractice action had been tried, settled, and paid for.
In the malpractice action, counsel for Dr. Ramchandani, who was hired and retained by St. Paul, stipulated with Ater that “Pat Tyler, R.N., was at all times relevant to this action an employee of Dr. Ramchandani, acting within the course and scope of such employment.” While this stipulation was nicely worded, it was totally wrong. Tyler was not the employee of Dr. Ramchandani and was not acting within the scope of her employment by Dr. Ramchandani when the injection was given. It is of considerable significance that Tyler took no part in reaching the stipulation in question; she was not a party to the action, was not represented in the action, and did not word the stipulation. Tyler was a witness in that case and, in her deposition, she testified:
“Q. For the record, your full legal name, please.
“A. Patricia Bernice Tyler.
“Q. Okay. What’s your current occupation?
“A. I’m a registered nurse.
“Q. And where do you work?
“A. I work for Dr. Ramchandani in his office at 301 East Grant.
“Q. If, throughout these proceedings, I would refer to him as Dr. Ram, would that be all right with you?
“A. That would be fine.
“Q. I have heard that used, and I am sensitive to mispronouncing names, so I won’t take the risk.
“DR. RAMCHANDANI: Don’t worry about it.
“Q. How long have you worked for Dr. Ram?
“A. Originally, I went to work for Dr. Ram in January of 1984.1 took a leave of absence of 11 months and I took care of my mother-in-law until she passed away, and I’ve worked for him ever since.
“Q. Just when did you return? And I probably could figure that out, but I’m not smart enough.
“A. I came back to work for him the 1st of March, ‘86.”
During the trial, Tyler téstified:
“Q. And are you employed by Dr. Ramchandani?
“A. Yes, sir.
“Q. And when were you first employed by Dr. Ramchandani?
“A. January of 1984.
“Q. And you continued in his employ as a registered nurse ever since that time?
“A. I took a leave of absence eleven months and went to Texas and then took care of my mother-in-law until she passed away.
“Q. And when was that?
“A. That would have been in the first part of April of ‘85,1 believe, until the following year, or first part of March of — 86,1 believe. I am not exactly sure of the dates, but it was at that approximate time.
“Q. In 1989 were you working in Dr. Ramchandani’s office?
“A. Yes, sir.”
None of the confusion about who worked for whom would become of any real importance until this action was filed. In this action, St. Paul insists that as the liability carrier for Dr. Ramchandani, it was compelled to pay a judgment rendered against him as a result of the negligence of Tyler. Thus, it claims to have an implied right of indemnity against Tyler and her unnamed liability insurance carrier. The defense to all of this is that as a co-employee, Dr. Ramchandani was not responsible for Tyler’s negligence and St. Paul was not compelled to pay a liability that Dr. Ramchandani did not have. If there was respondeat superior liability for Tyler’s negligence, it would he with Tyler’s employer, the professional corporation, which was never a party to the malpractice lawsuit.
It is now agreed that despite the malpractice case, Tyler was never employed by Dr. Ramchandani and Dr. Ramchandani is not now and never was responsible for Tyler’s negligence.
The question is whether St. Paul is entitled to implied indemnity under these facts.
The trial court granted summary judgment in favor of Tyler, reasoning:
“It has now become clear in the facts that at the time the injury to Mrs. Ater was inflicted, the Defendant herein was an employee of a corporation known as A.P. Ramchandani, PA, a.Professional Corporation, and that corporation was provided with a policy of professional liability insurance by the Plaintiff, St. Paul Fire and Marine Insurance Company, but upon the suit and the judgment in favor of Ater, this policy was not used to defend the Ater claim, nor pay judgment to Ater in the prior proceeding entitled Ater v. A.P. Ramchandani, M.D., in the Grant County District Court.
“Now both parties hereto have made their renewed motions for summary judgment, and it is the order of the Court as follows:
“The Plaintiffs herein claim that they have subrogation to the indemnity rights of A.P. Ramchandani, M.D.
“That is both true and correct, but of no avail to the Plaintiffs. The Plaintiffs herein paid a judgment on behalf of A.P. Ramchandani, M.D., and they obtained subrogation rights, if any he may have, against Patricia B. Tyler.
“Indemnity comes from contract express or implied. See Bituminous Corporation v. American Fire, 192 Kan. 233.
“Because there was no employee-employer relationship, there could not have been a vicarious liability between Tyler, the employee, and Ramchandani, the employer. Leiker v. Gafford, 245 Kan. 325.
“The Plaintiffs claim that equity should prevail and give them a right of indemnity against Tyler because they paid the judgment rendered against A.P. Ramchandani in favor of Ater.
“The facts speak for themselves in this case. St. Paul is not entitled to equity. They issued two insurance policies, one to A.P. Ramchandani, M.D,, and one to A.P. Ramchandani, PA, a Professional Corporation. Upon the claim being made against Ramchandani by Ater, they never asserted the fact that Tyler was not an employee of Ramchandani, M.D. In fact, they agreed that she was an employee of Ramchandani, M.D. And although the Plaintiffs, who now stand in the shoes of Ramchandani, complain that Tyler should be held liable by indemnity because of her failure to assert the relationship, that is not persuasive to this Court.
“The simple fact of the matter is, Ramchandani, M.D., did not assert the lack of employer-employee relationship, and it was his to have asserted. The Plaintiffs here claim that Tyler should be estopped from denying her liability because she did not assert that she was not an employee of Ramchandani in the Ater suit.
“Just because the Plaintiffs herein had put this Defendant on notice of the impending suit, and just because they, throughout the proceeding, asserted a right of indemnity and claim against Tyler, that fact is meaningless. Equitable estoppel cannot be invoked by the Plaintiffs here because it cannot be invoked by someone in favor of their own wrongful act or dereliction. Newton v. Hornblower, 224 Kan. 506.
“They have no equitable right to claim indemnity. They are estopped from claiming indemnity because of their own failure to act through Ramchandani.
“It is, therefore, by the Court ordered, adjudged and decreed that judgment shall be and is hereby rendered in favor of the Defendant and against the Plaintiffs herein because there are no material facts in dispute by either party.”
We review the trial court’s decision on the basis of our well-known standard of review for summary judgment cases. See Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).
St. Paul sought to recover implied indemnity from the insurance company which insured Tyler against claims for her malpractice.
In Kansas, claims of indemnity are allowed when a contract of indemnity is implied. The claim usually arises when one party without fault is compelled to pay for the tortious acts of another. The indemnitee has a right of action against the indemnitor. Bick v. Peat Marwick & Main, 14 Kan. App. 2d 699, 708, 799 P.2d 94, rev. denied 247 Kan. 703 (1990); see Leiker v. Gafford, 249 Kan. 554, 558, 819 P.2d 655 (1991).
“There are two kinds of subrogation, one of which is termed ‘conventional,’ and the other ‘legal’ (also referred to as ‘equitable’). The distinction between the two is that conventional subrogation arises from contract; whereas, legal or equitable subrogation does not depend on the agreement of the parties and is a creature of equity.” Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, Syl. ¶ 3, 597 P.2d 622 (1979).
“Vicarious liability is a term generally applied to legal liabihty which arises solely because of a relationship and not because of any actual act of neghgence by the person held vicariously hable for the act of another. It is also referred to as imputed neghgence or imputed liability. Vicarious liability depends upon the relationship of the parties, such as employer and employee or principal and agent. In such cases, the employer or principal is held hable for the negligent act of the employee or agent solely by reason of the relationship and not because the employer or principal actually committed an act of neghgence. For discussions of the distinction between vicarious liability and the independent liability of an employer or principal see Prosser and Keeton on Torts, ch. 12, §§ 69-71 (5th ed. 1984); 53 Am. Jur. 2d, Master and Servant § 404 et seq.” Leiker v. Gafford, 245 Kan. 325, 355-56, 778 P.2d 823 (1989).
The facts demonstrate that St. Paul is not entitled to implied indemnity. As is pointed out above, implied indemnity is used in cases involving an employer/employee relationship or principal/ agent relationship. The concept behind the doctrine of implied indemnity is that the party whose actual negligence caused the damages should be required to pay back any sums the passively negligent party’s insurance company has had to pay. For instance, if an employer is forced to pay a judgment based upon his or her employee’s neghgence, the employer has a cause of action against the employee for implied indemnity. Under those circumstances the employer was only passively negligent, whereas the neghgence of the employee was the active neghgence which caused the damage.
“In Kansas, claims of indemnity are allowed when a contract of indemnity is implied. The claim usually arises when one party without fault is compelled to pay for the tortious acts of another. The indemnitee has a right of action against the indemnitor. [Citation omitted.] . . . The doctrine of implied indemnity is particularly applicable in cases of liability of a principal in respondeat superior for the acts of an agent or employee. [Citation omitted.]” Bick v. Peat Marwick & Main, 14 Kan. App. 2d at 708-09.
In Leiker v. Gafford, 249 Kan. at 559, the court defined indemnity as “ ‘a right which inures to a person who has fulfilled an obligation owed by him. but which as between himself and another person should have been discharged by the other.’ ” (Quoting Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 662, 518 P.2d 372 [1974].)
St. Paul’s failure to ascertain who worked for whom in the malpractice suit has placed it in a position where it may not utilize implied indemnity. For instance, Dr. Ramchandani was not compelled to pay the judgment entered as a result of Tyler’s negligence. It is true that St. Paul paid that judgment, but it was not compelled to do so, and neither was Dr. Ramchandani compelled to do so, because he had no liability.
We know now that Tyler did not work for Dr. Ramchandani. She worked for his professional corporation. Since Dr. Ramchandani’s liability was premised on respondeat superior, it begins to melt away with the revelation that he is a co-employee of Tyler and not her employer. The result is that Dr. Ramchandani was not “compelled to pay” for Tyler’s negligence and did not “fulfill an obligation owed by him in so paying.” Only the professional corporation could have been compelled to pay for Tyler’s negligence, and it was not a party to the lawsuit.
It might appear on first glance that the equities in this case lie with St. Paul. If that is true, many of those equities are nullified by St. Paul’s unaccountable failure to join Tyler and Dr. Ramchandani’s professional corporation as defendants in the malpractice action. In addition, St. Paul failed to determine that both Dr. Ramchandani and Tyler were employees of the professional corporation. That true employment relationship was there for the finding, but apparently St. Paul did not look veiy hard.
We hold the elements of implied indemnity were not present and affirm the trial court’s decision to that effect.
St. Paul attempts to avoid the factual dilemma it is in through the use of collateral estoppel. Collateral estoppel may be invoked where there is
“(1) a prior judgment on the merits which determined the rights and liabilities of the parties on die issue based upon ultimate facts as disclosed by die pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991).
The concept of collateral estoppel is similar to that of res judicata. The doctrine will bar relitigation of issues on which the parties are bound by a prior judgment.
“Although collateral estoppel is not as broad in scope as the doctrine of res judicata, the necessary elements which make the two doctrines applicable are much the same. Without reviewing all of the necessary elements it will suffice for the purpose of this opinion to state that there must be a judgment on the merits which determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial [citations omitted], and neither doctrine operates to affect those who were neither parties nor in privity therein.” (Emphasis added.) Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 (1971).
St. Paul asserts collateral estoppel to support its argument that Tyler should be bound by the stipulation in the malpractice action that she was employed by Dr. Ramchandani. The problem with that argument is that through no fault or machination of her own, Tyler was not a party to the malpractice suit. It was within the power of St. Paul to make her a party, but it failed to do so. It was St. Paul which entered into the stipulation with Ater, not Tyler, who had very little, if anything, to say about the wording of the stipulation.
In In re Estate of Beason, 248 Kan. at 812, the Supreme Court said:
“The trial court is wrong in its facts. The nieces and nephews could not have themselves been parties to the determination since the trial court had previously dismissed them. One who is dismissed from a suit is not bound by a judgment in that suit. Mid-Continent Casualty Company v. Everett, 340 F.2d 65, 69 (10th Cir. 1965).” (Emphasis added.)
In light of the reasoning set forth in Beason, we do not hesitate to conclude that one who has never been a party to a lawsuit is not bound by collateral estoppel or res judicata to the judgment in that lawsuit. Neither is Tyler bound by a stipulation negotiated between St. Paul and Ater in her absence.
St. Paul asserts, however, that Dr. Ramchandani and Tyler were in privity and that collateral estoppel applies for that reason.
We have read a number of cases attempting to define privity and can only conclude that the definition of privity is one of the more difficult to state and is perhaps one that has never been satisfactorily set forth.
Despite that difficulty, there are a number of definitions of privity:
“There is no generally prevailing definition of privity’ which can be automatically applied to all cases. A determination of the question as to who are privies requires careful examination into the circumstances of each case as it arises.” Goetz v. Board of Trustees, 203 Kan. 340, 350-51, 454 P.2d 481 (1969).
“A privy is: ‘[O]ne who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession or purchase.’ ” Wells v. Davis, 226 Kan. 586, 589, 603 P.2d 180 (1979) (quoting Bernhard v. Bank of America, 19 Cal. 2d 807, 811, 122 P.2d 892 [1942]).
In 47 Am. Jur. 2d, Judgments § 663, we find:
“Privity is not established however, from the mere fact that persons happen to be interested in the same question or in proving or disproving the same state of facts, or because the question litigated was one which might affect such other person’s liability as a judicial precedent in a subsequent action. . . .
“It has been declared that if the interests of two groups of persons were in conflict at the time of the first action, they are not privies for the purposes of res judicata or collateral estoppel. There can be no such privity between persons unless the result can be defended on principles of fundamental fairness in the due process sense.”
The fact is, Tyler was not a party in the malpractice suit and was not represented in the malpractice suit. To hold that she is bound by the judgment of the malpractice action seems to us to deny her fundamental due process and fairness. The definition of privity in the context with which we deal is very difficult if not impossible to state. However, privity is an equitable concept and equitable prin ciples should apply. We conclude there can be no privity between persons unless the result can be defended on principles of fundamental fairness in a due process sense. That element cannot be satisfied in this case.
Tyler and Dr. Ramchandani were co-employees of Dr. Ramchandani’s professional corporation. Dr. Ramchandani was sued for Tyler’s negligence, and Tyler was left out of the lawsuit. The stipulation which St. Paul wishes to hang around Tyler’s neck was prepared and signed not by Tyler but by St. Paul and Ater. Despite St. Paul’s arguments to the contrary, we fail to see any fundamental fairness in holding Tyler to the details of a judgment in an action to which she was a stranger and in a situation in which she was not in privity with Dr. Ramchandani.
We hold that Dr. Ramchandani and Tyler were not in privity with each other so as to make the malpractice action binding upon Tyler, a nonparty.
In the appellee brief, Tyler makes an argument based on the statute of limitations. We conclude that based upon our decision as set forth in this opinion, the statute of limitations argument is moot and will not be addressed.
Tyler spends a fair amount of time in her brief arguing that St. Paul cannot successfully argue equitable estoppel. In the reply brief, St. Paul indicates it is not making an equitable estoppel argument. As a result, we do not reach that question.
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Lewis, J.:
Plaintiffs Thomas Wilkerson and William L. Wilkerson and defendant Heather A. Brown, f/k/a Heather A. Montgomery, were involved in a relatively minor automobile accident. Plain tiffs filed suit to recover damages under Chapter 61, Kansas Code of Civil Procedure for Limited Actions. Defendant filed an answer denying liability and also counterclaimed, seeking to recover her own damages. Defendant prevailed both as to her liability and on her counterclaim for damages. However, the trial court denied defendant’s request for attorney fees under K.S.A. 1998 Supp. 60-2006. Defendant appeals from the denial by the trial court of her request for attorney fees.
The determination of this action depends upon our construction of K.S.A. 1998 Supp. 60-2006. That statute reads:
“(a) In actions brought for the recovery of property damages only of less than $7,500 sustained and caused by the negligent operation of a motor vehicle, the prevailing party shall be allowed reasonable attorney fees which shall be taxed as part of die costs of the action unless:
(1) The prevailing party recovers no damages; or
(2) a tender equal to or in excess of the amount recovered was made by die adverse party before the commencement of the action in which judgment is rendered.
“(b) For die plaintiff to be awarded attorney fees for the prosecution of such action, a written demand for the settlement of such claim containing all of die claimed elements of property damage and the total monetary amount demanded in the action shall have been made on the adverse party at such party’s last known address not less than 30 days before the commencement of the action. For the defendant to be awarded attorney fees, a written offer of settlement of such claim shall have been made to the plaintiff at such plaintiff s last known address not more than 30 days after the defendant filed the answer to the action.
“(c) This section shall apply to actions brought pursuant to the code of civil procedure and actions brought pursuant to the code of civil procedure for limited actions.” (Emphasis added.)
Defendant, through her attorney, wrote a letter addressed to plaintiffs and their attorney at their attorney’s address. The letter was written within 30 days of the filing of defendant’s answer and offered to pay plaintiffs $1,000 in settlement of their claim. The letter read as follows:
“Dear Mr. Treaster and Messrs. Wilkerson:
“Pursuant to K.S.A. 60-2006, defendant Heather A. Montgomery hereby makes written offer of settlement of the plaintiffs’ claims in the above-captioned and numbered cause, and that said offer of settlement is in the amount of $1,000.00.
“As I am sure you are aware, Mr. Treaster, K.S.A. 60-2006 requires this written offer of settlement to be mailed to the plaintiffs at the plaintiffs’ last known ad dress. Of course, such direct contact with a represented party is in violation of ethical duties. As such, I would ask that you, as attorney and agent of plaintiff Thomas Wilkerson and plaintiff William Wilkerson, please forward this letter or a copy thereof to said plaintiffs to comply with the statute.
“Thank you for your time and consideration in this matter. Should you have any questions, please feel free to contact me at 752-5579.
“Sincerely,
/s/ Jason L. Bush “Jason L. Bush “For the Firm”
Plaintiffs’ attorney replied that he had conveyed the letter offer to plaintiffs. Plaintiffs had made an earlier demand letter to Rich Reed, an insurance adjuster, and offered in his reply letter to defendant’s attorney to waive the notice requirements of 60-2006 if defendant would do so. Subsequently, plaintiffs notified defendant’s attorney that plaintiffs rejected the $1,000 offer made by the letter, as set out above, and again plaintiffs offered to waive the notice requirements of the statute if defendant would do so. Defendant refused to agree to waive the notice requirements of the statute, although we have some difficulty in understanding why. The requested waiver would have, in all probability, rendered this appeal unnecessary.
After trial, defendant sought to recover her attorney fees. The trial court held that the notice of defendant’s settlement offer to plaintiffs was inadequate and denied the request for attorney fees. This appeal followed.
A court does not have authority to impose attorney fees except those authorized by statute or agreed to by the parties. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). Attorney fees may be taxed as costs in actions for recovery of damages of less than $7,500 caused by the negligent operation of a motor vehicle. K.S.A. 1998 Supp. 60-2006. Interpretation of a statute is a question of law over which this court’s review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). An appellate court is not bound by the district court’s interpretation of a statute. Smith v. Printup, 262 Kan. 587, 604, 938 P.2d 1261 (1997).
The trial court held that notice of defendant’s offer to settle was inadequate because it was not made to plaintiffs at plaintiffs’ last known addresses. The trial court rejected the argument that service of the notice upon plaintiffs’ attorney was sufficient notice to entitle defendant to recover attorney fees.
We disagree with the trial court. The purpose of K.S.A. 1998 Supp. 60-2006 is to promote the prompt payment of small but well-founded claims and to discourage unnecessary litigation. Chavez v. Markham, 256 Kan. 859, 868, 889 P.2d 122 (1995). The court’s very narrow construction of that statute is not in accordance with the purpose of the statute.
We conclude that the offer of settlement was properly served on plaintiffs’ attorney under the provisions of the Kansas Code of Civil Procedure.
To begin with, we note that this action was filed pursuant to Chapter 61, which is the Kansas Code of Civil Procedure for Limited Actions. That code, however, explicitly incorporates the Chapter 60 rules for service. K.S.A. 61-1705 provides for service of pleadings and other papers in accordance with K.S.A. 1998 Supp. 60-205 and K.S.A. 1998 Supp. 60-2006.
We believe the provisions of K.S.A. 1998 Supp. 60-205 apply to this case. That statute details how service is to be made of a laundry list of documents, including demands and offers of “judgment.” The statute specifically provides: “The method of service and filing of pleadings and other papers as provided in this section shall constitute sufficient service and filing in all civil actions and special proceedings but they shall be alternative to, and not in restriction of, different methods specifically provided by law.” (Emphasis added.) K.S.A. 1998 Supp. 60-205(b) fists acceptable means of serving a party and states: “Whenever under this article service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court.”
We conclude the provisions of 60-205 apply to service of notice such as that contemplated by 60-2006.
We agree that general and specific statutes should be read together and harmonized whenever possible, and that the rule is that to the extent they conflict, the special statute will prevail unless it appears the legislature intended the general statute to be controlling. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./ Kansas City, 264 Kan. 293, 311, 955 P.2d 1136 (1998).
We conclude that 60-205 and 60-2006 are not in conflict. K.S.A. 1998 Supp. 60-205 provides a method of service which is sufficient in all civil actions but which is stated to be “alternative to, and not in restriction of, different methods specifically provided by law.” K.S.A. 1998 Supp. 60-2006 requires service on the party at the party’s last known address, and this service is permissible because it is specifically provided by law. However, serving a represented party by serving his or her attorney as directed by K.S.A. 1998 Supp. 60-205(b) is an alternative but equally effective method of conveying the settlement offer provided by K.S.A. 1998 Supp. 60-2006. The net result is that defendant’s offer served in compliance with K.S.A. 1998 Supp. 60-205 was sufficiently served on plaintiffs. The requirement that the offer be served on plaintiffs at the plaintiffs’ last known addresses is certainly a permissible procedure prescribed by 60-2006(b), but it does not foreclose service of that offer on the attorney of a party under K.S.A. 1998 Supp. 60-205.
We hold that the notice of defendant’s offer to settle was sufficiently served on plaintiffs by mailing a copy of the notice to plaintiffs’ attorney pursuant to K.S.A. 1998 Supp. 60-205. In our opinion, service of the notice referred to in 60-2006 may be made either by serving the party at the party’s last known address or by serving the attorneys of the party under 60-205. We hold that either method is sufficient service of the notice and would entitle the serving party to attorney fees under 60-2006.
In closing, we note that we do not agree that KRPC Rule 4.2 (1999 Kan. Ct. R. Annot. 380) would be violated by service as is set forth in K.S.A. 1998 Supp. 60-2006(b). Rule 4.2 does not prohibit direct contact with a represented party where the party’s lawyer consents or the contact is authorized by law. K.S.A. 1998 Supp. 60-2006(b) is an enactment by the legislature which authorizes a written settlement to be mailed directly to a represented party at the party’s last known address.
Despite our conclusion as to the ethics involved in directly mailing an offer of settlement to a represented party, we hold that the offer made in this case was properly served and that the trial court should award defendant appropriate attorney fees.
The trial court’s order refusing to award attorney fees is reversed, and the matter is remanded for a hearing to determine the appropriate amount for an award of attorney fees on behalf of defendant.
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Brazil, C.J.:
The City of Wichita (City) appeals from an award in a workers compensation claim.
The City argues that Alan Green’s workers compensation benefits should be reduced by the amount of benefits he receives from his retirement pension and that Green voluntarily removed himself from the labor market.
We affirm.
In November 1993, Green, a 40-year-old firefighter, injured his back moving some emergency rescue equipment. In February 1994, he reinjured his back and underwent surgery for a herniated disc. He returned to work in August 1994 for light duty subject to work restrictions. Upon returning to work, he was instructed by his immediate supervisor to fill out his retirement papers. Green had two separate retirement plans, one, an age-based retirement plan, and the other, a service-related disability benefit plan.
Green also filed an application for a workers compensation hearing. The administrative law judge (ALJ) entered an award finding Green suffered an 89 percent permanent partial general bodywork disability. The judge offset the award by the amount of Green’s benefits under the City’s retirement plan. Both the City and Green timely applied for review of this order. The Workers Compensation Board (Board) affirmed the ALJ’s award, but held the City was not entitled to offset Green’s benefits under the retirement plan. The City timely appeals to this court.
1. KS.A. 44-501(h)
The Board determined that the benefits Green receives through the City’s retirement system are not in the nature of retirement benefits and are therefore not subject to statutory offset.
K.S.A. 44501(h) states:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the toted amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.” (Emphasis added.)
Interpretation of workers compensation statutes involves a question of law, over which this court exercises unlimited review. Helms v. Pendergast, 21 Kan. App. 2d 303, 307, 899 P.2d 501 (1995). The intent of die legislature governs the construction of a statute, if that intent can be ascertained. 21 Kan. App. 2d at 307. In ascertaining legislative intent, this court may consider the language of the statute, the historical background of the enactment, the purpose to be accomplished, and the effect the statute may have under various suggested constructions. 21 Kan. App. 2d at 307.
Our Supreme Court discussed the legislative intent underlying K.S.A. 44-501(h) in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 872, 942 P.2d 591 (1997):
“We hold the legislature intended to prevent duplication of wage loss replacement with the offset provision. The legislature concluded that it did not make sense to prevent duplication of replacement wages from social security benefits that were partially employer funded and not prevent such duplication of wages from employer-funded private pensions. . . . The legislature believes such an offset will encourage employers to furnish retirement plans for employees because the employer will not be required to duplicate wage replacement should an injured worker retire. The prevention of wage loss duplication is a legitimate state goal . . . .”
The City argues that Green’s benefits are paid pursuant to the City “Retirement System” and that the plain language of the statute and the benefit entitlement program requires an offset. Green contends, and the Board agreed, that the benefits he is receiving are in the nature of disability benefits and are not “retirement” benefits. Neither the statute nor Injured Workers specifically mentions disability benefits.
If Green’s benefits are not retirement benefits, then there is no statutory authority for the offset. The statute does not define retirement benefits, and there is no case law distinguishing retirement from disability benefits.
The Board noted the disability and retirement benefits overlap. The same employer and employee contribution funded both the disability and the age-based retirement benefits. The amount of benefits under both is based on essentially the same calculation of 75 percent of final salary. The Board then held:
“The Appeals Board nevertheless concludes the benefits paid claimant should not be treated as retirement benefits for purposes of K.S.A. 44-501(h). The Board’s conclusion is based on what it considers the commonly accepted meaning of the term ‘retirement benefit.’ The Board construes ‘retirement benefit’ as a benefit paid by reason of age and/or years of service. Retirement benefits are not dependent on disability. In this case claimant is eligible only because of his injury and disability. In contrast, eligibility for retirement is based only on age and/or years of service.”
Black’s Law Dictionary defines “retire” as “[t]o terminate employment or service upon reaching retirement age.” Black’s Law Dictionary 1183 (5th ed. 1979). Retirement plans usually specify “as a vital requirement” a minimum period of service. 60A Am. Jur. 2d, Pensions and Retirement Funds § 1643, p. 969. For example, the “retirement system” for firefighters mandated by K.S.A. 1998 Supp. 14-10a08 sets a minimum service period of 22 years and a minimum retirement age of 50. The corresponding disability benefits section, K.S.A. 14-10a09, sets no age or length-of-service minimum.
The benefit plan provided by the City is entitled “Wichita Police & Fire Retirement System.” One section is identified as “Service Retirement” and provides for 75 percent of the worker’s final average salary upon completion of 20 years of service and reaching the age of 50. A second section, under which Green was receiving benefits, is identified as “Service Connected Disability.” It provides for 75 percent of the salary in effect on the date when the salary ceased if the worker is permanently injured or disabled. This benefit is available for “[a]ny age, regardless of length of service.” In the introduction to the City’s plan, the purpose of the retirement system is set out as “not only to provide an orderly means whereby employees may retire because of age and length of service, but also to provide disability benefits.” (Emphasis added.) The City’s plan thus distinguishes between retirement benefits and the disability benefits Green is receiving.
Although the City’s overall benefits scheme is denoted a “retirement system,” the section on which Green relies is not a traditional retirement plan. It contains no age or years-of-service requirement; it requires only current employment and a work-related disability. It is distinguished within the authorizing document from the retirement plan. It therefore fails to meet the definition of retirement benefits for the purposes of the statutory offset provision.
The result is that Green receives workers compensation benefits and a significant separate disability benefit; he may, in fact, have a higher income after the injury than before. His double benefits run counter to the legislative intent expressed in Injured Workers, 262 Kan. at 872. Nevertheless, the legislature has not specifically taken away a worker’s ability to receive private disability benefits in addition to workers compensation, and it does not appear to have taken away dual public-employment disability compensation and workers compensation. On the contrary, the legislature has mandated benefit packages for firefighters without any cross-reference between that mandate and the workers compensation statute. See K.S.A. 14-10a01 et seq.
This court will favor substance over form. See Reiter v. City of Beloit, 263 Kan. 74, 95, 947 P.2d 425 (1997). The substance of Green’s benefits from the City was in the nature of disability assistance, not a retirement package. The Board correctly ruled that there is no basis for an offset of benefits.
2. Wage Loss
The City contends on appeal that both the ALJ and the Board incorrectly found that Green did not voluntarily remove himself from the labor market. This constitutes a factual finding. On reviewing factual questions resolved by the Board, this court will affirm the factfinder’s determinations if substantial competent evidence supports those determinations. Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 317, 944 P.2d 179 (1997).
There is evidence in the record that Green’s cessation of labor was not voluntary. Green testified he had not planned on leaving the fire department for a number of years, but he was specifically ordered to do so. He further testified he had applied for several jobs but was rejected because of his back condition. He also testified he is making preparations to embark on a new career, either as a ranch manager or as a helicopter pilot.
In Copeland, 24 Kan. App. 2d at 320, the court established a two-part rule regarding cessation of employment. The factfinder initially must determine whether the claimant has made a good, faith effort to find appropriate employment. If such a finding is made, the factfinder determines the difference between pre- and post-injuiy wages. If it is determined the worker failed to make a good faith effort to find appropriate employment, the factfinder must determine an appropriate post-injury wage based on all the evidence before it. 24 Kan. App. 2d at 320.
This test was based in part on the holding in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), where this court held:
“The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage. Further, it would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.”
There is evidence in the record that Green is not merely sitting at home, refusing to work, and taking advantage of the workers compensation system. The factfinders reasonably could have found Green has made a good faith effort to find employment commensurate with his disability.
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Elliott, J.:
Doniphan County (County) appeals the trial court’s ruling quashing garnishment and attachment proceedings involving property owned by Atchison Hospital Association (AHA).
We affirm.
The material facts are undisputed. Howard Miller was the sole shareholder of Howard Miller Development Company, Inc. (Miller Development). Miller Development was a Missouri corporation transacting business in Kansas. In 1990, Miller Development forfeited its authority to transact business in Kansas for failing to file its annual report and pay its franchise tax. For similar reasons, it also forfeited its authority to transact business in Missouri.
In 1994, Miller Development sold a tract of land to Atchison Medical Services, Inc. In 1996, AHA acquired the realty upon which it now operates a medical clinic. In 1993, the County took a judgment against Howard Miller (Miller), individually, for unpaid taxes. The judgment went unsatisfied and in 1997, the County requested a writ of general execution and an order for attachment against Miller as defendant, and AHA as garnishee.
The County contends that at the time Miller Development transferred realty Oto Atchison Medical Services, it had no corporate existence and, thus, could not convey the property. Accordingly, the County argues the deed was invalid to Atchison Medical Services and, therefore, as to AHA. The County claims title to the land reverted to Miller, individually, as sole shareholder of the corporation and, thus, was subject to attachment.
AHA claims that at the time Miller Development transferred title to the realty to Atchison Medical Services, it was not liable for any delinquent taxes and no tax liens were pending against it.
Initially, the County claims AHA lacks standing because it is not the real party in interest. Standing means a party has sufficient interest in a justiciable controversy to obtain judicial resolution of the controversy. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm'rs, 247 Kan. 625, 629, 802 P.2d 1231 (1990). AHA became a party to the suit when it was named as a party by the County in an attempt to have AHA’s property sold to satisfy the judgment. AHA has standing.
In granting AHA’s motion to quash, the trial court relied on Pottorf v. U.S. 773 F. Supp. 1491 (D. Kan. 1991), aff'd 982 F.2d 529 (10th Cir. 1992). The County agrees Kansas law applies and seeks to distinguish Pottorf.
In Pottorf, Judge Rogers held that where the articles of incorporation have been forfeited, the corporation retains legal title to its assets until a proper conveyance is made. Judge Rogers concluded that without “formal dissolution, [the corporation] remained the repository of title for the real property.” 773 F. Supp. at 1495.
We agree with Judge Rogers’ interpretation of Kansas law; therefore, the trial court properly held Miller Development validly transferred title to Atchison Medical Services, which in turn transferred title to AHA. The County’s efforts to attach the subject realty as property of Miller individually must fail.
Finally, both appellant and appellee cite Missouri statutes and cases regarding the period of wind-up following a corporation’s dissolution. The discussions are irrelevant because there’s no documentary evidence in the record indicating Miller Development dissolved. The trial court’s oral ruling supports the proposition that Miller Development did not dissolve. The trial court’s decision is premised on the fact Miller Development did not dissolve but merely forfeited its articles. The Pottorf court also relied on an identical distinction. 773 F. Supp. at 1495.
Affirmed. | [
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Rogg, J.:
Aaron Kinmon, Jr., was convicted of possession of cocaine and possession of drug paraphernalia. On appeal, he challenges the instructions given to the jury.
This is a case which concerns the adequacy of juiy instructions. In March 1995, the Topeka Police Department executed a search warrant for a residence in Topeka. Kinmon was in the residence and was taken into custody. He was charged with possession of cocaine with intent to sell, failure to have drug tax stamps, and possession of drug paraphernalia.
The State based its possession allegations on cocaine that was found in two places. A cigarette case in Kinmon’s pocket contained cigarettes and a piece of rock cocaine wrapped in cellophane. A magnetic key holder found under a couch contained nine cocaine rocks individually wrapped in cellophane. One of the officers testified that he saw Kinmon place the key holder under the couch after the police had entered the residence. Two officers testified that no one else had had an opportunity to put the key holder there.
Kinmon’s defense was that the cigarette case, the key holder, and the cocaine were not his. Kinmon testified that the cigarette case belonged to a woman who was in the house and that fie had just gotten it out of her coat to get a cigarette when the police arrived. Prentice Ross, who had originally been charged with Kinmon in the case, testified that the cocaine in the key holder was his and that he had thrown it under the couch when the officers came through the door of the residence. Ross stated that he had already been prosecuted in connection with this incident. His conviction was for possession of drug paraphernalia.
The charge for failure to have drug tax stamps was based on the cocaine found in the key holder. The drug paraphernalia count could relate to the cocaine found in either the cigarette case or the key holder.
On the possession of cocaine with intent to sell charge, the jury found Kinmon guilty of the lesser offense of possession of cocaine. Kinmon was also found guilty of possessing drug paraphernalia. The juiy found Kinmon not guilty of possessing more than 1 gram of cocaine without tax stamps.
Kinmon claims that the jury did not return a unanimous verdict. He argues that the failure of the court to instruct the jurors that they must all agree on the specific act constituting the crime is reversible error.
The issue is whether this is an alternative means case or a multiple acts case. The distinction between these cases is made in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). In an alternative means case, a single offense may be committed in more than one way. The jury must be unanimous as to the guilt of the defendant for the crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In a multiple acts case, several acts are alleged and any one of them could support the crime charged. In multiple acts cases, the jury must be unanimous as to which act or incident constitutes the crime. 255 Kan. 286, Syl. ¶¶ 1 and 2.
This is a multiple acts case. The jury could have found Kinmon guilty based on either possession of the cigarette case or possession of the key holder. There was no instruction informing the jurors that all of them had to agree that the same underlying criminal act had to be proved beyond a reasonable doubt. In voting to convict Kinmon, different jurors could have relied on different acts. Kinmon did not request the appropriate instruction, but the language in Timley makes clear that this is clear error and the conviction cannot stand when there is no assurance that the verdict was unanimous. Our reversal based on erroneous jury instructions makes moot other claims of error.
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Rulon, J.:
Taxpayer Curtis Machine Company appeals the district court’s order finding the Board of Tax Appeals lacked jurisdiction to consider its valuation appeal following a foreclosure action in the district court. We reverse and remand.
In August 1992, the Board of County Commissioners of Ford County, Kansas, (Ford County) instituted a foreclosure action against Curtis Machine Company (Curtis Machine) under K.S.A. 79-2801 for the sale of real estate for unpaid taxes on numerous tracts for tax years 1983-1991. In July 1993, the district court found the taxes had been legally assessed, giving Ford County a first and prior hen against the land. Later, Ford County entered into an agreement with Curtis Machine to grant the taxpayer additional time to satisfy the tax obligation before the tax sale. Ford County had also secured judgments against Curtis Machine under K.S.A. 79-2101 for unpaid personal property taxes for tax years 1985-1992.
On May 3,1994, Curtis Machine paid under protest the disputed real estate and personal property taxes, interest, and penalties for 1986-1993. On April 5, 1994, Curtis Machine filed tax grievance applications with the Ford County appraiser’s office for personal property for 1985-1993 and filed the tax grievance applications with the Board of Tax Appeals (BOTA) on April 25, 1994. On June 23, 1994, BOTA received 17 of Curtis Machine’s protest appeals. One set appealed tax years 1983-1991 for parcel 029-099-31-0-10-01-001.00-0; a second set appealed tax years 1983-1990 for parcel 029-087-35-0-40-20-026.00-0. On August 5, 1994, BOTA received the remaining protest appeals dealing with personal property for tax years 1985 — 1993.
In November 1994, Ford County filed a motion to dismiss for lack of jurisdiction. In July 1995, BOTA found that although Curtis Machine could not argue valuation and assessment issues for the first time in the foreclosure court, when the foreclosure court determined that the taxes had been legally assessed, it had therefore determined the valuation and assessment were correct. Eventually, BOTA dismissed Curtis Machine’s grievance applications and tax protest appeals for lack of jurisdiction.
Curtis Machine filed a petition for reconsideration with BOTA. Upon reconsideration in January 1996, BOTA found Curtis Ma chine could not have raised the valuation issue in the foreclosure action without first exhausting its administrative remedies. BOTA found the foreclosure court did not determine whether the valuation or classification was correct, so BOTA had jurisdiction to consider those issues in Curtis Machine’s appeal.
Ford County filed a petition for review of agency action with the district court. The district court found BOTA did not have jurisdiction to hear Curtis Machine’s valuation appeal because the foreclosure action finally determined the rights of the parties. Curtis Machine appeals to this court.
JURISDICTION
Determining whether the district court erred in finding BOTA did not have jurisdiction over Curtis Machine’s valuation appeal involves statutory construction, giving this court unlimited review. See House of Schwan, Inc. v. Norwood, 25 Kan. App. 2d 539, 540, 966 P.2d 89 (1998) (citing In re Tax Appeal of Boeing Co., 261 Kan. 508, 514, 930 P.2d 1366 [1997]).
In a foreclosure action under K.S.A. 79-2801, the district court determines the amount of taxes, charges, interest, and penalties chargeable to each particular piece of real estate and orders the land sold at public sale for the satisfaction of the resulting lien. See K.S.A. 79-2801(a). Ford County asserts the judgment in the foreclosure action served to finally determine that the property valuation was correct, precluding Curtis Machine from later raising that issue with BOTA.
“Res judicata (claim preclusion) prevents the relitigation of claims previously litigated and contains four elements: (1) same claim; (2) same parties; (3) claims were or could have been raised, and (4) a final judgment on the merits. Collateral estoppel (issue preclusion) prevents the relitigation of issues previously litigated and, if res judicata is found to apply, there is no need to consider the application of collateral estoppel.” Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 660-61, 722 P.2d 569 (1986).
In order for Curtis Machine to be precluded from raising the valuation issue with BOTA, it must have been able to raise the issue with the district court in the foreclosure action and the district court must have issued a final judgment on the merits.
In Board of Osage County Comm’rs v. Schmidt, 12 Kan. App. 2d 812, 758 P.2d 254, rev. denied 243 Kan. 777 (1988), the taxpayers appealed the foreclosure court’s refusal to consider their defense of constructive fraud in the valuation and assessment of their property. This court held the taxpayers were required to exhaust their administrative remedies under K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426, so they could not raise the constructive fraud defense for the first time in the tax foreclosure action. Schmidt, 12 Kan. App. 2d at 812-13.
In J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 857 P.2d 666 (1993), the taxpayer attempted to raise a tax exemption issue with the district court without first raising the issue with BOTA. Our Supreme Court concluded the district court was without jurisdiction to hear the issue because the taxpayer was required to exhaust its administrative remedies with BOTA. J. Enterprises, 253 Kan. at 560-61. Clearly, the district court has original jurisdiction over tax issues only when there exists “fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud.” J. Enterprises, 253 Kan. at 556-57 (quoting Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591 [1902]). The J. Enterprises court noted that although the actions of “the County in making the assessment may have been erroneous, ... its action was not illegal,” so the district court did not have jurisdiction under K.S.A. 60-907(a) to hear the appeal before the taxpayer exhausted its administrative remedies with BOTA. 253 Kan. at 560-61. Similarly, Curtis Machine was required to exhaust its remedies with BOTA before it could raise the valuation issue with the district court.
Ford County relies on In re Tax Protest of Liston Foundation, 13 Kan. App. 2d 353, 771 P.2d 77 (1989), where the district court in a foreclosure action determined the taxpayer owed tax and interest. The taxpayer did not appeal that judgment, but sought a refund from BOTA. This court concluded that because the foreclosure court had determined the amount of interest due, the taxpayer was precluded from raising the issue with BOTA. We said the foreclosure court was specifically directed by K.S.A. 79-2803 to determine the amount of interest owing so the taxpayer could have contested the amount of interest in the foreclosure suit. Liston, 13 Kan. App. 2d at 355-56.
Here, Curtis Machine could not have raised the valuation issue with the district court in the foreclosure action. Further, the foreclosure court did not consider such an issue and is not charged with considering the correctness of the tax assessment. The duty of a foreclosure court is to “investigate and to decide what taxes, charges, interest, and penalty thereon, to the date of the filing of the petition, shall have been legally assessed and charged on such tract, lot, or piece of real estate, and to render judgment therefor, together with the interest, charges and penalty thereon, as provided by law . . . K.S.A. 79-2803. Importantly, the foreclosure court’s order did not determine that the valuation was correct.
Ford County finally argues the rights of the parties have been fixed through the foreclosure action and allowing BOTA to exercise jurisdiction would undermine the effect of the foreclosure court’s order. Ford County, however, entered into an agreement with Curtis Machine to delay the tax sale, during which time Curtis Machine redeemed the property by paying the past due taxes, albeit under protest. See K.S.A. 79-2803. Once redeemed, all further proceedings for the collection of the lien were stayed. See K.S.A. 79-2803. The foreclosure action has run its course and is now moot. Any action by BOTA would not infringe upon that decision.
A foreclosure court does not have jurisdiction to hear a valuation issue. See Schmidt, 12 Kan. App. 2d at 812-13. Because Curtis Machine could not have raised the issue with the foreclosure court, res judicata does not operate to prevent Curtis Machine from raising the issue with BOTA. The district court erred in finding BOTA did not have jurisdiction to hear Curtis Machine’s valuation appeal.
Two statutory means exist for a taxpayer to protest the valuation of his or her property. K.S.A. 79-1448 provides that “[a]ny taxpayer may complain or appeal to the county appraiser from the classification or appraisal of the taxpayer’s property by giving notice to the county appraiser within 30 days subsequent to the date of mailing of the valuation notice ... for real property, and on or before May 15 for personal property.” Curtis Machine did not utilize this method. Alternatively, a taxpayer may protest the payment of his or her taxes. K.S.A. 79-2005(a) provides:
“Any taxpayer, before protesting the payment of such taxpayer’s taxes, shall be required, either at the time of paying such taxes, or, if the whole or part of the taxes are paid prior to December 20, no later than December 20, . . . to file a written statement with the county treasurer, on forms approved by the state board of tax appeals and provided by the county treasurer, clearly stating the grounds on which the whole or any part of such taxes are protested and citing any law, statute or facts on which such taxpayer relies in protesting the whole or any part of such taxes.”
Curtis Machine filed forms at the time of payment protesting the payment of those taxes.
K.S.A. 79-2005(a) does not contain a time limitation for when a taxpayer must protest taxes, only that such protest must be asserted when taxes are paid. “Delinquent taxes may be protested pursuant to K.S.A. 79-2005.” In re Tax Protest of Rice, 228 Kan. 600, Syl., 620 P.2d 312 (1980); see Schmidt, 12 Kan. App. 2d at 814. Curtis Machine followed the statutory procedure for protesting its tax valuation, so BOTA had jurisdiction to hear the appeal.
VALUATION OF PERSONAL PROPERTY
Ford County asserts Curtis Machine abandoned its appeal as to the valuation of its personal property. Ford County claims Curtis Machine uses the term “foreclosure” throughout its brief, which only applies to proceedings against real estate for past due taxes. Curtis Machine’s brief discusses the personal property taxes that it paid under protest; these were part of BOTA’s order finding it had jurisdiction. The district court’s order dismissed Curtis Machine’s valuation appeals as to both its real property and personal property. Curtis Machine’s appeal centers on whether the district court erred in finding BOTA did not have jurisdiction to hear its tax protest appeals, which included the personal property tax appeals. Curtis Machine has not abandoned the valuation issue as to its personal property.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Lorentz, J.:
Cedrick L. Smart appeals his convictions of robbery, battery, and assault. He claims error in the admission of prior crimes evidence and in the court’s granting of an upward durational departure.
On the night of the incident leading to Smart’s arrest, Chris Knight was the only employee working at a Quiktrip store in Wichita. Andrew Checkley entered the store to purchase some orange juice and milk. As he approached the cashier to pay for his purchases, Smart entered the store. When Knight began counting Checkley’s change back to him, Smart ran into the check-out counter, pushed Knight into the cigarette display, and pinned him down as he began to rifle through the cash register. Checkley heaved the half-gallon of orange juice he had purchased toward Smart, hitting him in the head and causing orange juice to be splashed eveiywhere. Smart then released Knight, who escaped from behind the counter. Checkley ran from the store and tried to call the police from his car phone. He then attempted to use the pay phone outside the store to call 911.
When Smart had finished taking cash from the register, he ran out of the store and, as he ran past the pay phones, he swung his fist at Checkley. Checkley avoided the blow by stepping back, with the result that Smart hit Webster Parcel, who had been using the other pay phone. Checkley then returned to the store and found Knight on the phone with the police.
Shortly thereafter, Officer Kraft received a dispatch reporting the robbery and describing the suspect. He patrolled the area northwest of the Quiktrip and noticed a person fitting the description of the suspect walking down a dark alley. As Kraft accelerated to catch up, the suspect began to jog and then to sprint as the car kept pace. Kraft pulled alongside and yelled several times for the suspect to stop, all to no avail. Kraft then pulled ahead, jumped out of his car, and tackled the suspect, who turned out to be Smart. As Kraft took Smart into custody, he noticed and retrieved a wad of $50 in cash from Smart’s person. Kraft then returned to the Quiktrip with Smart, who was identified by Knight, Checkley, and Parcel as the man who had robbed and run from the store.
At trial, the State introduced a videotape of the robbery taken from the store’s surveillance camera. Extensive expert testimony was also introduced tying the stains found on Smart’s clothing to the residue taken from the broken orange juice jug thrown by Checkley.
Smart testified he had been in Wichita for about 3 years to attend Friends University. He also stated he was engaged to be married to a woman who was pregnant with his twins and who had two other children he treated as his own.
As to the night in question, Smart testified he had gone to a party where he met an acquaintance, Tyrone, who wished to borrow his car. He further stated that when Tyrone did not immediately return, he went looking for his car. He walked through the Cowboy Club parking lot, questioned the doorman at the club, and went into the club but was unsuccessful in locating either his car or Tyrone. He then began walking back to the party and was subsequently chased and arrested in the manner described by Kraft.
Smart also claimed he frequently purchases orange juice at the local Quiktrip and rarely changes his clothes when they become soiled. He claimed his fiancee’s daughter might have spilled orange juice on the shirt he was wearing at the time of his arrest. Finally, Smart testified he had never been charged with a robbery or “anything like this” before.
On cross-examination, the State offered evidence of Smart’s three prior theft convictions. This evidence of prior crimes was admitted over Smart’s objection.
At sentencing following Smart’s conviction, the trial court granted the State’s request for an upward durational departure.
Smart first claims the trial court erred in admitting his prior theft convictions. The trial court determined that credibility became an issue when Smart testified about his reasons for coming to Wichita and the origin of the orange juice stains on his T-shirt in an attempt to bolster his credibility. Smart contends he was simply eliciting background information, which he was entitled to do.
In determining whether the trial court erred in admitting evidence of prior crimes against the defendant in a criminal trial, the appellate court reviews the record for an abuse of the trial court’s discretion. State v. Peckham, 255 Kan. 310, 330, 875 P.2d 257 (1994).
Generally, evidence introduced by the State to attack the defendant’s credibility is not admissible unless the defendant first introduced evidence solely to support his or her credibility. K.S.A. 60-421. The State may not seek to attack the defendant’s credibility merely because he or she testifies at trial. State v. Johnson, 21 Kan. App. 2d 576, 578, 907 P.2d 144, rev. denied 258 Kan. 861 (1995).
A criminal defendant is entitled to relate to the jury background or biographical information, including length of residence in the community, length of marriage, size of family, occupation, date of birth, education, place of employment, and service in the armed forces and receipt of an honorable discharge, that would enable the jury to properly place the defendant into the events brought out at trial. However, if the defendant moves beyond mere background material to testify to specific prior incidents or to create the impression of a blemish-free fife, the prosecution may rebut the same with evidence of prior crimes. State v. Bowers, 218 Kan. 736, 738, 545 P.2d 303 (1976).
In this case, Smart testified he resided with his fiancee, who was due to give birth to his twins in about a month. He then testified about attending a party on January 26, 1999, with some acquaintances. He claimed he did not know them well since he had been in Wichita for only about 3 years. Smart added that he had come to Wichita to attend Friends University.
Later, when explaining the origin of the stains on his T-shirt, Smart claimed he often purchased things at Quiktrip for his stepdaughters. He testified he called them “my kids.” He testified he tries to spend as much time with them as possible and that he eats breakfast with them every morning.
Finally, when asked by defense counsel whether he had ever been charged with any robberies or “anything like this” in the past, Smart responded negatively. When asked why his fiancee was not in court, Smart explained she was not present because her pregnancy was making her feel ill.
Although much of the contested testimony arose from the questions asked on direct examination, it also was not entirely relevant to a determination of the defendant’s guilt or innocence of the charged crimes, except to support his credibility. Whether designed or accidental, the challenged testimony supported the defendant’s credibility by portraying him as a loving family man, a student, and a nonaggressive personality.
As the trial court conceded, the determination whether the defendant attempted to bolster his credibility is a close call. Since it is such a close call, a reasonable person could decide either way. Therefore, the trial court did not abuse its discretion, and this court must affirm. See State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995).
Even if this court were to find an abuse of discretion in admitting the prior crimes evidence, the error is harmless. The State produced a videotape of the robbery revealing a robber who looked very much like Smart. That videotape was supported by three substantially identical accounts by eyewitnesses. The State also produced expert testimony linking the stains on Smart’s shirt with the broken bottle of orange juice thrown at the robber.
Reversal of a conviction based upon the erroneous admission of prior crimes evidence is only proper when the admission prejudices the defendant’s right to substantial justice. State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999). The evidence against Smart, even disregarding the prior crimes evidence, clearly supports the jury’s finding of guilt. Accordingly, Smart was not deprived of substantial justice.
Smart next argues the trial court erred in granting the State’s motion for an upward departure based on his perjury. He claims that since the crime was not heinous, involved only $30, and did not involve a weapon, he should have been granted a downward departure.
The review of a sentencing departure is two-fold. K.S.A. 21-4721(d) requires the court to first review the trial court’s departure findings to determine if the evidence supports those findings. Then the court must review those findings to see if they constitute substantial and compelling reasons to depart.
Whether the trial court relied upon a substantial and compelling basis for departure is a question of law over which this court has unlimited review. See State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995). A review of state and federal case law reveals that perjury constitutes a substantial and compelling basis for departure, as it reflects the prospects for the defendant’s rehabilitation. See United States v. Grayson, 438 U.S. 41, 50-51, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1978); State v. Whitaker, 260 Kan. 85, 89-90, 917 P.2d 859 (1996).
Turning to the first prong of the analysis, a trial court may only enhance a sentence based upon a departure factor supported by substantial evidence. In order to reverse the trial court’s findings, the appellate court must be convinced the findings are clearly erroneous or unsupported by the evidence. Gideon, 257 Kan. at 622-23.
In State v. Manzanares, 19 Kan. App. 2d 214, 866 P.2d 1083 (1994), disapproved on other grounds by State v. Guebara, 24 Kan. App. 2d 260, 944 P.2d 164 (1997), this court reviewed an upward sentencing departure arising from the trial court’s determination that the defendant had committed perjury. The defendant had contradicted testimony of two eyewitnesses by contending he had not struck the victim’s car intentionally. Affirming the upward departure, this court considered veracity, or lack thereof, an appropriate sentencing factor. 19 Kan. App. 2d at 225-26.
In the present case, the trial court determined the evidence overwhelmingly pointed to Smart’s guilt in robbing the Quiktrip. Furthermore, he proceeded to take the stand and contradict in disputable evidence by fabricating alternate stories for each aspect of the crime. Smart had no witnesses to corroborate his alibi of being at the Cowboy Club. Moreover, the orange juice stains were purportedly the result of the carelessness of Smart’s fiancee’s child in using a broken cup which leaked on Smart’s shirt, yet the leaky cup was never introduced for the jury, and the defendant’s fiancee did not testify about the child’s cup or corroborate Smart’s story concerning the purchase of orange juice at Quiktrip.
From the record, it is apparent the trial court was well supported in its conclusion that Smart had perjured himself. Accordingly, under Kansas law, there was no error in departing from the presumptive sentence under the guidelines. However, although no Kansas court has yet addressed the issue, United States v. Dunnigan, 507 U.S. 87, 95-96, 122 L. Ed. 2d 445, 113 S. Ct. 1111 (1993), suggests that due process demands that the district court, through its findings, establish that all the elements of perjury are satisfied before executing an upward departure.
“The concern that courts will enhance sentences as a matter of course whenever the accused takes the stand and is found guilty is dispelled by our earlier explanation that if an accused challenges a sentence increase based on perjured testimony, die trial court must make findings to support all die elements of a perjury violation in the specific case.” 507 U.S. at 96-97.
The Tenth Circuit has also adopted the Dunnigan standard for a perjury departure. See U.S. v. Smith, 81 F.3d 915, 918 (10th Cir. 1996) (“A finding of perjury in support of a sentence enhancement for obstruction of justice must contain two components. First, the finding must encompass all of the factual predicates of perjury. [Citation omitted.] Second, the finding must specifically identify the perjured testimony. [Citation omitted.]”).
Although we find no Kansas court has specifically adopted the federal standard, we hold that due process demands, at a minimum, a finding that all the elements of perjury are satisfied before perjury is used as a basis for an upward sentencing departure. To hold otherwise would put a defendant in a position of being coerced into not testifying.
A criminal defendant normally takes a risk by testifying in his or her own defense, being subject to cross-examination and impeachment. If the trial court is permitted to enhance the sentence without a clear determination of perjury, a defendant faces the possibility that a trial judge will increase the sentence, after a finding of guilty, simply because the defendant was not credible, regardless of whether he or she told the truth on the witness stand.
The convictions are affirmed, the sentences are vacated, and the case is remanded for findings on the elements of perjury to justify an upward departure. | [
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Rulon, J.:
Respondent Lora J. Roth appeals the district court’s order granting petitioner Dwane Scott Roth’s motion for reduction of child support. We reverse and remand with directions.
Petitioner and respondent divorced in 1988. The district court awarded the parties joint custody of their daughter, R.R., designating respondent as the residential custodian and awarding petitioner visitation. The court ordered petitioner to pay $325 a month in child support, with payments of $162.50 during January, February, and December when petitioner had extended visitation with the child. As agreed by the parties, the court ordered that petitioner would claim R.R. as a dependent tax deduction for the tax years 1987-1991. In 1993, the district court decreased petitioner’s child support obligation to $250 a month as agreed by the parties.
In June 1995, die district court denied petitioner’s motion for change of residential custody. The court granted petitioner visitation from Wednesdays after school to Fridays at 6:00 p.m., on alternate weekends, alternate holidays, and for the summer. During the summer respondent had R.R. Wednesdays through Fridays and on alternate weekends.
In 1996, petitioner filed a motion to modify child support. The district court used shared custody computations to reduce petitioner’s child support obligation to $83 a month. The court further ordered the parties to alternate the dependent income tax deduc tion for R.R. The district court denied respondent’s motion for reconsideration and respondent appeals.
CHILD SUPPORT
Respondent argues the district court erred in applying the shared custody rules of the Kansas Child Support Guidelines to reduce petitioner’s child support obligation. The standard of review of a district court’s order determining the amount of child support is whether the district court abused is discretion, while interpretation of the Kansas Child Support Guidelines is subject to unlimited review by this court. In re Marriage of Johnson, 24 Kan. App. 2d 631, 636, 950 P.2d 267 (1997), rev. denied 264 Kan. 821 (1998); In re Marriage of Case, 19 Kan. App. 2d 883, 889, 879 P.2d 632, rev. denied 255 Kan. 1002 (1994).
Petitioner argues K.S.A. 60-1610(a)(4), which lists the types ot custodial arrangements for child custody, controls the issue of whether the district court could apply the Kansas Child Support Guideline’s shared custody provision. K.S.A. 60-1610(a)(4)(A) is titled “Joint custody” and states:
“The court may place the custody of a child with both parties on a shared or joint-custody basis. In that event, the parties shall have equal rights to make decisions in the best interests of the child under their custody. When a child is placed in the joint custody of the child’s parents, the court may further determine that the residency of the child shall be divided either in an equal manner with regard to time of residency or on the basis of a primary residency arrangement for the child.”
Petitioner argues K.S.A. 60-1610(a)(4)(A) makes joint custody and shared custody one and the same, while respondent argues otherwise.
K.S.A. 1610(a)(4)(A) creates a different status between joint custody and shared custody; shared custody is a more specific type of joint custody. Joint custody is a legal designation, with both parents having “equal rights to make decisions in the best interest of the child.” Joint custody may be of two physical types: (1) shared custody, where the child’s residence is “divided in an equal manner with regard to time of residency” or (2) primary residency, where the child’s residence is “on the basis of a primary residency arrangement.”
The district court originally ordered joint custody of R.R., with primary residency with respondent.
The Kansas Child Support Guidelines define shared custody, but not joint custody. At the time of the modification hearing in 1996, shared custody under the guidelines was “the regular sharing of residential custody on an equal or nearly equal amount of the child’s time. To qualify for shared custody treatment, blocks of time must be regular and equal or nearly equal rather than equal based on a noncustodial extended visitation basis (i.e., summer visitation, holidays, etc.). . . .” Supreme Court Administrative Order No. 107, II.M. (1996 Kan. Ct. R. Annot. 88).
The Kansas Child Support Guidelines now contain an additional requirement that “the parties must be sharing direct expenses of the child on an equal or nearly equal basis. Direct expenses include but are not limited to clothing and education expense but do not include food, transportation, housing or utilities.” Supreme Court Administrative Order No. 128, II.M. (1998 Kan. Ct. R. Annot. 95).
This court must apply the Kansas Child Support Guidelines in effect at the time of the hearing in 1996. Under a shared custody status, “the amount of the lower Net Parental Child Support Obligation is subtracted from the higher amount and the difference is then multiplied by .50. The resulting amount is the child support the party having the higher obligation will pay to the party with the lower obligation.” Supreme Court Administrative Order No. 107, IV.G. (1996 Kan. Ct. R. Annot. 90).
The issue is whether the district court could apply the shared custody provision of the Kansas Child Support Guidelines when the original custody order did not specifically order shared custody. The Kansas Child Support Guidelines govern the setting of child support, while K.S.A. 60-1610(a)(4) governs the determination of child custody status. It is possible to apply the shared custody section of the child support guidelines without contravening K.S.A. 60-1610(a)(4). The Kansas Child Support Guidelines do not require the court to have ordered “shared custody,” but instead list the elements to consider in determining whether the shared custody provision applies. This court must review whether the district court erred in finding those requirements were met.
Here, there was testimony to support a finding that petitioner had R.R. in blocks of time of an equal or nearly equal basis as respondent. This occurred by agreement of the parties, not through operation of the custody order. We are convinced the evidence, however, did not support a finding that R.R.’s time with petitioner changed from mere visitation to the level of shared residential custody. Based on the evidence presented, application of the shared custody provision was inappropriate. Under the circumstances, the district court should have applied the visitation allowance, giving petitioner credit for the time R.R. spent with him. See Supreme Court Administrative Order No. 107, V.E.2. (1996 Kan. Ct. R. Annot. 98). Upon remand, the district court must consider the record of the December 1996 modification hearing and compute child support based on joint custody with a visitation allowance. In the event of a future motion for modification, the district court must apply the current child support guidelines, which require an additional showing for shared custody that “the parties must be sharing direct expenses of the child on an equal or nearly equal basis.” Supreme Court Administrative Order No. 128, II.M. (1998 Kan. Ct. R. Annot. 95).
We note that the better practice in these situations would be for the district court to modify the original child custody order to reflect a finding that a shared custody situation exists. We further invite the legislature to revisit K.S.A. 60-1610(4), the child custody statute, in light of the adoption of the Kansas Child Support Guidelines.
INCOME TAX DEDUCTION
Respondent next argues the district court erred in ordering the parties to alternate the dependent income tax deduction for R.R. This court’s standard of review is whether the district court abused its discretion. See In re Marriage of Denning, 22 Kan. App. 2d 226, 914 P.2d 576 (1996). Respondent asserts the parties’ separation agreement provided petitioner would claim the tax deduction from 1987-1991, then respondent would claim the deduction for the remaining years.
K.S.A. 60-1610(b)(3) states that when the parties enter into a separation agreement which the court incorporates into the divorce decree, the court may not later modify that agreement unless the parties so agree, except for matters pertaining to the custody, support, or education of the minor child. Petitioner argues the district court could change the parties’ agreement concerning the tax deduction because it was a child support issue subject to the court’s continuing jurisdiction under K.S.A. 60-1610(b)(3). The Kansas Child Support Guidelines state:
“If the parties agree to share the economic benefits of the income tax exemption for a minor child, this section shall not be used. If the parties are unable to agree to share or alternate the exemption or, after agreeing the custodial parent refuses to execute IRS Form 8332, the court shall consider the economic effect to both parties and may adjust the child support. The court may also consider any other tax impacts.” Supreme Court Administrative Order No. 107, V.E.3. (1996 Kan. Ct. R. Annot. 99).
Consequently, the district court is bound by the parties’ separation agreement, although it may consider the impact of that agreement in setting the amount of child support. Which party may claim the dependent tax deduction is not a matter relating to the support of the child, so the district court does not retain jurisdiction under K.S.A. 60-1610(b)(3).
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LEWIS, J.:
This is an appeal entirely about attorney fees: whether they are reasonable and whether one can recover attorney fees for litigating the amount of those fees.
Plaintiff Robin Moore had her vehicle insured with the defendant St. Paul Mercury Insurance Company. Plaintiff s vehicle was damaged in an accident. The insurance company offered to pay the cost of repairs to plaintiff s vehicle. Plaintiff responded that she not only wanted the cost of repairs, she also wanted to be paid the loss in value sustained by her vehicle in the accident. The insurance company at first refused to pay the loss in value claim. Plaintiffs husband is an attorney and represented her throughout the litigation. Later, she hired an additional attorney to assist her husband.
The insurance company at first denied the requests of plaintiff; however, ultimately, the company conceded that it owed her for the loss of value of her vehicle and that it owed her attorney fees. At the hearing on the award of attorney fees, the trial court found that plaintiff s counsel’s fee of $180 per hour was fair and reasonable and awarded plaintiff attorney fees in the amount of $6,078.50. The insurance company then filed a motion to alter and amend in which it challenged the reasonableness of the attorney fees awarded and the sufficiency of the evidence presented. After hearing this motion, the trial court made some adjustment in the attorney fees and awarded plaintiff $540 as attorney fees incurred in preparing to litigate the motion to alter and amend.
One of the issues raised by the insurance company was whether the services of plaintiff s husband were duplicative of the services of the other attorney. The trial court held they were not.
On appeal, defendant first argues that the rate and amount of attorney fees awarded in this case were unreasonable.
We do not agree.
The reasonableness of attorney fees rests within the sound discretion of the trial court, and it can draw on its own knowledge and expertise in determining a reasonable amount. On appeal, the trial court’s award will not be disturbed absent a showing of abuse of discretion. If this court determines that the district court abused its discretion, it may fix such fees as it determines are reasonable. City of Wichita v. B G Products, Inc., 252 Kan. 367, Syl. ¶ 4, 845 P.2d 649 (1993).
We have examined the record in this case and conclude that the trial court did not abuse its discretion in either the hourly rate awarded or the total amount awarded. We point out that it is the trial court and not the appellate court that is the expert in awarding attorney fees at the trial court level. We do not intend to usurp the expertise of the trial court in this case. We affirm the trial court’s award of attorney fees in the amount of $180 per hour and further affirm the total fees awarded prior to the award of fees on the motion to alter and amend.
There is an issue as to whether the time charged by plaintiff s husband was reasonable. It is clear that a plaintiff may employ more than one attorney as long as the total fee is reasonable for the work required. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, Syl. ¶ 8, 815 P.2d 550 (1991).
Defendant asks this court to analyze each step taken by plaintiff s husband and decide whether that step or that action was necessary in the resolution of the dispute and not duplicative. There is no record made of the initial hearing, and our review of the record made in the later hearing indicates that the services were not duplicative, and we affirm the attorney fees award made.
The next issue is more difficult. The insurance company argues that attorney fees awarded under K.S.A. 40-256 cannot include fees associated with litigating the amount of attorney fees awarded.
This involves an interpretation of a statute and is a question of law under which our review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
An insured is allowed reasonable attorney fees for “services in such action.” K.S.A. 40-256. Attorney fees are considered costs associated with the action. Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 372, 789 P.2d 211 (1990). Any litigation arising from an award of attorney fees must occur within the action or is barred by collateral estoppel. Shughart Thomson & Kilroy, P. C. v. Max Rieke & Bros., Inc., 24 Kan. App. 2d 205, 209, 943 P.2d 508 (1997).
There appear to be no Kansas cases specifically on point. The insurance company cites Snodgrass, 246 Kan. 371, as supporting its position. However, Snodgrass is a case which dealt with jurisdiction only, and it is not controlling authority on the issue in question.
The Florida appellate courts have taken a position on this issue based on a similar Florida statute. In State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993), the Florida Supreme Court concluded that “[s]uch work [fee amount litigation] inures solely to the attorney s benefit and cannot be considered services rendered in procuring full payment of the judgment.” The purpose of the Florida statute was said to be “ ‘to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.’ ” 629 So. 2d at 833. Under the rationale expressed by the Florida Supreme Court in Palma, an award of attorney fees incurred while collecting or litigating the amount of other attorney fees could not be recoverable.
Plaintiffs attorney responds to this by telling this court that should we take the position urged by the insurance company, he and no other attorney will ever take a 40-256 case if they fear having to litigate the amount of their fees on their own time. We rather doubt that this would happen or that the public would be much damaged if it did. We respond to that argument by saying that the opposite is equally true, and that a plaintiff s attorney will or may litigate fees simply to increase his or her award.
We have held that “[t]he common theme running through countless cases dealing with K.S.A. 40-256 is that its purpose is to make whole an insured who is unjustifiably required to sue his own insurance company.” Barnett & Lerner, Chtd. v. Aetna Cas. & Sur. Ins. Co., 8 Kan. App. 2d 270, 276, 656 P.2d 165 (1982). Plaintiff in this case was made whole by the original award of judgment and the original award of attorney fees. She has very little, if any, interest in the outcome of the litigation concerning the amount and reasonableness of the fee that is to be awarded.
We hold that services of an attorney spent in litigating the amount of attorney fees to be awarded inures solely to the attorney’s benefit and has no relation to services rendered in procuring either the judgment in favor of a plaintiff or the payment of that judgment. For that reason, we hold that such fees are not recoverable in this case. Accordingly, we vacate the judgment of $540 which was awarded to plaintiff and her attorneys for preparation of the motion to alter and amend. We affirm in all other respects, including the amount of attorney fees awarded by the trial court in favor of plaintiff and the judgment awarded by the trial court in favor of plaintiff.
Affirmed in part and vacated in part. | [
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Elliott, J.:
Andrew C. Welsh appeals his convictions of making a false writing and of conspiracy to commit theft.
We affirm.
Welsh first argues his constitutional rights were violated by the admission of written statements made to private security guards at a Best Buy store. The trial court admitted the statements following a Jackson v. Denno hearing. 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
A trial court must look at the totality of the circumstances when determining whether a statement was voluntarily made. State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986). Initially, Welsh contends he was detained in violation of K.S.A. 21-3424(c). This argument is raised for the first time on appeal and will, therefore, not be addressed. See State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998); State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994).
Welsh contends the written statements given to Best Buy loss prevention officers are self-incriminatory declarations taken in violation of the Fifth Amendment. Whether the Best Buy officers were agents of the State requiring a Miranda warning is a question of law; our review is unlimited. See State v. Benoit, 21 Kan. App. 2d 184, 189, 898 P.2d 653 (1995).
The Best Buy loss prevention officers are not law enforcement officers. See K.S.A. 21-3110(10). In determining whether a private person has become an agent of the State, courts consider whether the State knew of and acquiesced in the person’s intrusive conduct and whether the party performing the action intended to assist law enforcement. See Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). Further, the State must have some active part in the conduct or affirmatively encourage the conduct before government action can be found. See U.S. v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir. 1996). Mere cooperation with police coincident to performing private duties does not rise to state action. See Mier v. Com., 407 S.E.2d 342, 346 (Va. App. 1991). In the present case, the Best Buy officers were protecting Best Buy’s economic interests, not the State’s interests.
Statements made to private security officers who are not employed by the State and who are not acting under State directives are not subject to the self-incrimination privilege. See U. S. v. Parr-Pla, 549 F.2d 660, 663 (9th Cir. 1977); People v. Ray, 65 N.Y.2d 282, 286-87, 491 N.Y.S.2d 283, 480 N.E.2d 1065 (1985).
Here, testimony indicates Welsh was not threatened with harm or promised anything if he did not make the written statements, and the top of the form indicated “no threats or promises have been made.” Taken as a whole, the record supports a finding that the statements were made voluntarily. The trial court did not err in admitting the statements.
Welsh also argues that in order to be convicted of making a false writing, an individual must be acting within his or her own identity. See K.S.A. 21-3711; State v. Rios, 246 Kan. 517, 528-30, 792 P.2d 1065 (1990). Welsh contends that because the receipts returned to Best Buy were in the names of Trenton Shuey and Christopher Chambers, the elements of making a false writing were not met. The argument fails because Welsh aided and abetted Shuey in the making of the false writing. See K.S.A. 21-3205(1); State v. Reineking, 10 Kan. App. 2d 630, 633, 706 P.2d 483, rev. denied 238 Kan. 879 (1985).
Finally, Welsh argues the trial court erred in denying his motion for acquittal due to faulty venue. Simply put, the acts at the Best Buy store located in Johnson County were essential to the completion of the crime. See K.S.A. 22-2607(1). Venue was proper.
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Rulon, J.:
Defendants, the Kansas Pluman Rights Commission (KHRC) and Donald Reed, appeal from an order of the district court reversing the KHRC’s determination that Seaman Unified School District No. 345 (USD 345) discriminated against its employee, Reed, based upon his disability under the Kansas Acts Against Discrimination (KAAD), K.S.A. 44-1001 et seq. We affirm.
Defendant Reed has a history of insulin dependent diabetes beginning in childhood. He controls his diabetes by daily insulin injections, proper diet, and periodic checkups with his physician. Reed was hired by U.S.D. 345 in February 1990 as a night custodian. When hired, Reed was being treated for diabetic retinopathy, a disorder which occasionally caused the blood vessels in Reed’s retinas to hemorrhage. Reed’s corrected vision was 20/20 in his right eye and 20/70 in his left eye.
Reed eventually was referred to Dr. Kovarick for a vitrectomy, which is a surgical procedure to remove blood and vitreous scar tissue from the eye. Kovarick placed Reed on postoperative restrictions against stooping, straining, and lifting and to remain in a semi-upright position for approximately 2 weeks. Reed started back to work on February 15,1990, but the next day took sick leave without pay through March 6,1990. Additional surgery was performed with similar restrictions. Dr. Kovarick ceased treatment in April 1990, and no limitations were placed on Reed’s activity. However, Reed was concerned that the lifting he would be doing during the summer would affect his eyes and requested Dr. Penzlar, his physician, to write a letter limiting his lifting. Penzlar believed it was not medically proven that lifting could cause hemorrhage but could not state it was absolutely impossible. Penzlar provided a letter setting a 25-pound lifting restriction. Eventually, Reed provided the assistant superintendent with this letter.
Subsequently, Reed was terminated. The assistant superintendent testified Reed was terminated because of his lifting restrictions, poor work performance, and falsifying his job application. There was further testimony that a custodian job required unsupervised, heavy lifting.
Reed filed a complaint with the KHRC. A hearing officer issued an initial order, which the KHRC ultimately adopted as its final order, finding USD 345 discriminated against Reed based on his disability. The KHRC denied a motion for reconsideration, and USD 345 filed a petition for judicial review with the district court. Eventually, the district court granted USD 345 summaiy judgment, and KHRC and Reed appeal.
SUMMARY TUDGMENT
The defendants argue the district court improperly disposed of this case by summary judgment. However, defendants filed a response to the motion for summaiy judgment and failed to raise any objection to the motion. Defendants cannot now raise this issue for the first time on appeal. See Griffen v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 143, 927 P.2d 958 (1996).
Further, it is well established that summaiy judgment is available in all forms and kinds of civil matters. K.S.A. 1998 Supp. 60-256 does not state any type of civil matter that is precluded from summary judgment. See In re Estate of Brodheck, 22 Kan. App. 2d 229, 232, 915 P.2d 145, rev. denied 260 Kan. 993 (1996). A Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., proceeding is a civil matter and, therefore, summary judgment is appropriate if no genuine issues of material fact exist and the party is entitled to judgment as a matter of law.
Defendants further contend that the district court’s findings and conclusions are insufficient. However, defendants failed to object to the sufficiency of the district court’s findings of fact and conclusions of law, and the objection will not be considered for the first time on appeal. See Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). Further, the district court issued an extensive memorandum decision and entry of judgment that set forth the controlling facts and legal basis for its decision. The court found no disputed issue of fact existed to establish as a matter of law that Reed was disabled, after viewing all inferences permitted by the evidence in the defendants’ favor. Based on the analysis that follows, the district court did not err in granting summary judgment for the plaintiff.
THE CLAIMED DISABILITY
The United States Supreme Court has recently interpreted provisions in the American with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. (1994), which prohibit employers from discriminating against individuals on the basis of their disabilities. See Sutton v. United Airlines, Inc., 527 U.S. 471, 144 L. Ed. 2d 450, 119 S. Ct. 2139 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 144 L. Ed. 2d 484, 119 S. Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 144 L. Ed. 2d 518, 119 S. Ct. 2162 (1999). The KAAD is modeled after the ADA and, therefore, federal court decisions are persuasive authority. See Woods v. Midwest Conveyor Co., 231 Kan. 763, 767, 648 P.2d 234 (1982).
The recent United States Supreme Court cases mentioned above shed light on an area that has caused much conflict among the courts: whether corrective and mitigating measures should be considered in determining whether an individual is disabled. The United States Supreme Court, affirming the 10th Circuit, held that under the plain meaning of the ADA, corrective and mitigating measures should be considered in determining whether an individual is substantially limited in a major life activity. See Sutton, 144 L. Ed. 2d at 462. The ADA, as well as the KAAD, defines “disability” as “a physical or mental impairment that substantially limits one or more . . . major life activities.” 42 U.S.C. § 12102(2)(A) (1994); K.S.A. 44-1001(j)(l). The Equal Employment Opportunity Commission has issued regulations that define these terms. “Physical impairment” is “[a]ny physiological disorder . . . affecting . . . special sense organs.” 29 C.F.R. § 1630.2(h)(l) (1998). “Substantially limits” is defined as “[ujnable to perform a major life activity that the average person in the general population can perform,” 29 C.F.R. § 1630.2(j)(l), and “major life activities” are basic activities that the average person in the general population can perform with little or no difficulty such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i).
For a person to establish a prima facie case of disability discrimination, he or she must prove (1) he or she is a disabled person within the meaning of the KAAD; (2) he or she was able to perform the essential functions of the job with or without reasonable accommodations; and (3) the employer terminated him or her because of his or her disability. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995). We conclude the defendant here has not met the definition of disability under 44-1002(j)(l). The defendant testified he was able to control his diabetes with proper diet and monitoring and his physical activities were not limited. There is no evidence that the defendant’s diabetes, viewed in its medicated state, substantially limits his major fife activity of working. See Murphy, 144 L. Ed. 2d at 490.
Disability additionally includes “being regarded as having such an impairment.” K.S.A. 44-1002(j)(3). A person can meet this statutory definition if: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. See Sutton, 144 L. Ed. 2d at 466. When referring to the major fife activity of working, the EEOC defines “substantially limits” as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i).
The inability to perform a single, particular job does not constitute a substantial limitation in the major fife activity of working. See 29 C.F.R. § 1630.2(j)(3)(i). Here, Reed has failed to demonstrate there is a genuine issue of material fact as to whether he is regarded as disabled. Reed was fired from the position of night custodian because he was unable to perform the unsupervised, heavy lifting that accompanied that position. At most, Reed has shown he is regarded as unable to perform the job of custodian only when that job requires heavy lifting. Reed has put forward no evidence that he is regarded as unable to work in a broad class of jobs. See Sutton, 144 L. Ed. 2d at 468. An employer is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job. See Sutton, 144 L. Ed. 2d at 467.
The evidence demonstrates that Reed is, at most, regarded as unable to perform only a particular job, not a broad class of jobs. Such is insufficient, as a matter of law, to prove that Reed is regarded as substantially limited in the major life activity of working. See Sutton, 144 L. Ed. 2d at 468-69; Murphy, 144 L. Ed. 2d at 491-92.
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PlERRON, J.:
In this breach of contract case and counterclaim for violations of the Kansas Consumer Protection Act, Sandra I. Allen, d/b/a The Breakfast Club, appeals a judgment in favor of Dealers Leasing, Inc., (Dealers) and Ronald Cazel, d/b/a Billiards & Games, Inc. (Billards & Games). Allen argues the trial court erred in finding that she failed to prove her claims under the Kansas Consumer Protection Act (KCPA). We reverse and remand.
The facts are for the most part undisputed. Allen operates a small family restaurant in Wichita known as The Breakfast Club. The business is not incorporated and is a sole proprietorship.
On November 20, 1997, Michael Duranleau came into The Breakfast Club offering to lease Allen a compact disc jukebox to replace her current one. Duranleau had with him a blank invoice from the supplier of the jukebox, Billiards & Games. Duranleau filled out the invoice, which described the jukebox and stated a total purchase price of $3,710. Allen signed the invoice. Duranleau also had with him a Business Lease Application from Dealers, which he filled out on her behalf and had her sign; he then submitted it to Dealers. Dealers approved Allen’s credit and typed up a lease, and Duranleau delivered the lease to Allen for her signature on November 21, 1997. All of the contractual and lease paperwork was entered into and signed by Allen at The Breakfast Club.
The lease purchase called for a lease term of 36 months with a $138 monthly payment and a prepayment of $414. Allen admits she did not read the lease before she signed it. Allen testified she understood the deal with Duranleau was to lease a nice used CD jukebox, that it would be 80% filled with CDs, and that the jukebox would be hooked up to the existing speakers in the restaurant. She testified she thought Duranleau worked for Dealers.
The jukebox was purchased by Dealers from Ronnie Cazel, the proprietor of Billiards & Games, for $3,710. Cazel delivered the jukebox on Friday, November 21,1997, and attempted to set it up. It is undisputed that when the jukebox arrived at The Breakfast Club, the bill changer would not work, the page turner for the CDs was broken, the jukebox was only 5% filled with CDs, and the jukebox could not be hooked up to the existing speaker system because there was a part missing and the delivery and installation people from Billiards & Games did not have time to hook it up. Allen testified the delivery people said they would be right back to hook up the machine to the speaker system. They never came back.
On Saturday, November 22, 1997, Cazel removed the jukebox to make the necessary repairs, left a loaner machine in its place, and said he would bring the purchased jukebox back on Monday. Allen called repeatedly on Monday to find out when tire jukebox would be delivered. Cazel attempted to deliver the purchased jukebox on Tuesday, November 25, 1997. He picked up the loaner machine at that time. Cazel’s employees stated they did not have time to hook up the jukebox to the speaker system. Allen refused to let them deliver the jukebox and told them to not bring back the machine until such time as they could hook it up to the speaker system. Cazel’s employee could not tell Allen when they would be back to complete the delivery and hook the jukebox up to the speakers. Allen testified that after that, she was “done with it.”
On Tuesday, November 25, 1997, Allen called Dealers and spoke with Jerry McDonald, the Vice President in charge of equipment leasing. Allen expressed her dissatisfaction with the situation and indicated she wanted to cancel the lease. McDonald called Cazel at Billiards & Games and discussed the situation. Cazel called the Breakfast Club and spoke with Debbie Shain, the head waitress. When asked whether the speakers would be hooked up, Cazel replied, “I won’t guarantee nothing.” Allen and her headwaitresses testified that between November 26, 1997, and December 14, 1997, Allen repeatedly called Billiards & Games to speak with Cazel, but she never reached him, and he never returned any of her messages.
On December 3,1997, McDonald wrote to Allen trying to remedy the situation and indicated that Dealers refused to cancel the lease with Allen unless Cazel returned the money Dealers paid for the jukebox. On December 14,1997, Allen wrote to Dealers asking it to void the leasing contract and return her $414. Thereafter, Dealers and Cazel made numerous attempts, through letters and phone calls, to make the deal work. Allen never responded.
When it became clear that Allen would not honor the lease agreement, Dealers sold the jukebox and applied the proceeds against her unpaid balance. Dealers sued Allen for an alleged deficiency balance of $3,301.67 (against a total purchase price of $3,710), under a breach of contract claim. Allen counterclaimed against Dealers for violations of the Kansas Consumer Protection Act, breach of contract for delivering a broken jukebox, and for lost profits. Allen later filed a cross-petition against Cazel, d/b/a Billiards & Games, Inc., and brought them into the lawsuit as a third-party defendant.
Following a bench trial, the court granted judgment in favor of Dealers and Cazel. The court ruled the transaction was a financing lease controlled by Article 2A of the Uniform Commercial Code and that Allen was not entitled to cancel the lease. On Allen’s counterclaims, the court held that Duranleau was neither an express nor an implied agent of Dealers, that Dealers had no duty to give Allen a 3-day right to cancel, that the door-to-door sales provisions of the Kansas Consumer Protection Act only apply to home solicitations, and that if a duty to give notice of the right to cancel existed, it was only on the supplier, which was Cazel under this transaction. The court also found Allen was not entitled to lost profits because she failed to mitigate her damages, and since Allen failed to prove her claims under the Kansas Consumer Protection Act, Dealers was entitled to attorney fees.
Allen appeals.
The first question for resolution is to what extent the transaction in this case is controlled by the Kansas Consumer Protection Act (KCPA). Dealers does not object to applying the KCPA to this transaction. However, Dealers argues the trial court correctly interpreted the KCPA to hold Dealers did not violate the act.
The transaction in this case falls within the purview of the KCPA. “Consumer” is defined as “an individual or sole proprietor who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” (Emphasis added.) K.S.A. 50-624(b). “Supplier” is defined as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” K.S.A. 50-624(i). “Consumer transaction” means “a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). The lease agreement between Allen and Dealers was a consumer transaction under the KCPA.
When the legislature amended the definition of “consumer” in 1991 by adding sole proprietor to the statutory definition, the legislature was merely clarifying the state of the law. L. 1991 ch. 159, § 1. The 1973 comments to K.S.A. 50-624 state: “This definition of ‘consumer’ is intentionally broad. It covers not only individuals who seek or acquire goods, services or real estate for personal, family or household purposes, but also sole proprietors such as farmers and business people.” (Emphasis added.) Clearly, the legislature contemplated sole proprietors as consumers when the KCPA was enacted in 1973. The 1991 amendment to K.S.A. 50-624 only clarified the existing definition. “Ordinarily, courts presume that, by changing the language of a statute, the legislature intends either to clarify its meaning or to change its effect.” Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989).
This court must also determine whether the trial court correctly applied the Kansas Consumer Protection Act. The initial inquiry is whether the case at bar involved a “door-to-door sale” under K.S.A. 50-640, namely, whether a door-to-door sale cari occur at a business. Stated another way, are the door-to-door sale provisions of the KCPA limited to home sohcitations?
Where the trial court has made findings of fact and conclusions of law, the appellate court’s review is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997). However, interpretation of a statute is a question of law permitting unlimited review by this court. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
The express language of K.S.A. 50-640 does not limit door-to-door sales to home sohcitations. We will not alter or ignore language in a statute to change its meaning. See In re Marriage of Killman, 264 Kan. 33, 43, 955 P.2d 1228 (1998) (when a statute is plain and unambiguous, the appehate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute). K.S.A. 50-640(c) defines door-to-door sale in the following manner:
“(1) ‘Door-to-door sale’ means a sale, lease or rental of consumer property or services with a purchase price of $25 or more, whether under single or multiple consumer transactions, in which the supplier or the supplier’s representative personally solicits the sale, including those in response to or following an invitation by the consumer, and the consumer’s agreement or offer to purchase is made at a place other than the place of business of the supplier.” (Emphasis added.)
In addition to providing a general statutory definition, K.S.A. 50-640(c)(1) identifies transactions which are not “door-to-door sales.”
By Specifying transactions which are not door-to-door sales, the legislature intended for all other transactions which fall within the statute’s general definition to be considered door-to-door sales. See In re Marriage of Killman, 264 Kan. at 42 (when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific fist). The exceptions to door-to-door sales include transactions:
“(A) Made pursuant to prior negotiations in the course of a visit by the consumer to a retail business establishment having a fixed permanent location where the property is exhibited or the services are offered for sale on a continuing basis; or “(B) in which the consumer is accorded the right of rescission by the provisions of the consumer credit protection act (15 USCS 1635) or regulations issued pursuant thereto; or
“(C) in which the consumer has initiated die consumer transaction and die property or services are needed to meet a bona fide immediate personal emergency of the consumer, and the consumer furnishes the supplier with a separate dated and signed personal statement in the consumer s handwriting describing die situation requiring immediate remedy and expressly acknowledging and waiving die right to cancel the sale within three business days; or
“(D) conducted and consummated entirely by mail or telephone; and without any other contact between the consumer and the supplier or its representative prior to delivery of the property or performance of die services; or
“(E) in which the consumer has initiated the transaction and specifically requested the supplier to visit the consumer’s home for the purpose of repairing or performing maintenance upon the consumer’s real or personal property. If in the course of such a visit, die supplier sells the consumer the right to receive additional services or property other than replacement parts necessarily used in performing die maintenance or in making die repairs, the sale of the additional property or services would not fall within this exclusion; or
“(F) pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission. K.S.A. 50-640(e)(l).
As cited by the trial court and the parties, the lone Kansas case to discuss K.S.A. 50-640 is Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, 738 P.2d 852 (1987). The trial court utilized Moore for authority to restrict the 3-day right to cancel a door-to-door sales transaction to home solicitations and not to solicitations at business premises. Dealers cites Moore for the court’s treatment of the statutory comment to K.S.A. 50-640.
“Kansas Comment 1973 to K.S.A. 50-640 makes it clear that the main target of die statute is the home solicitation sale. In such circumstances, a person may be quietly watching his or her television set, answer die unexpected doorbell, and within thirty minutes have signed up for ten years of dancing lessons. The statute gives die gullible consumer an opportunity to consider and reflect upon such a purchase and cancel the same if desired.” 241 Kan. at 553.
Moore is not authority restricting door-to-door sales strictly to home solicitations. Rather, it provides that the “main target,” not the sole target, of the statute is the home solicitation. The factual situation in Moore clearly fell within the purview of the door-to-door sale exception listed in K.S.A. 50-640(c)(l)(A), and the Moore court upheld the trial court’s finding pursuant thereto. Having sufficient reason to uphold the trial court’s decision, in dicta, the Moore court stated it did not have sufficient evidence to determine whether the Moore transaction was for business or personal use. 241 Kan. at 553.
As communicated in K.S.A. 50-640 and stated in Moore, the one-on-one in-person sales transaction can be a high pressure situation. In these situations, the legislature gives the consumer a cooling off period to reconsider the situation after the pressure is gone. K.S.A. 50-640(b).
However, these one-on-one in-person sales transactions do not occur only at the threshold of the front door of someone’s house. Limiting the door-to-door sales provisions of the KCPA to home solicitations does not correspond with the general language of K.S.A. 50-640. The legislature provides that anytime one of these high pressure one-on-one sales transactions occurs and the consumers agreement or offer to purchase is made at a place other than the place of business of the supplier, the supplier is required to provide multiple oral and written notices of the consumer’s 3-day right to cancel the transaction. K.S.A. 50-640. By setting forth several exceptions to the rule, the legislature has recognized the same pressures are not evident in certain situations, such as when prior negotiations have occurred at the business location of the supplier, or where the consumer has initiated the transaction, or where the negotiations are conducted by telephone or mail. See K.S.A. 50-640(c)(l)(A) - (F).
Prior to the legislature’s amendments to K.S.A. 50-640 in 1991, within the context of the door-to-door sales provisions, “consumer property” was defined within K.S.A. 50-640 as property primarily for personal, family, or household purposes. L. 1991 ch. 159, § 12. Thus, property purchased for business purposes was not covered by the door-to-door sales statute. However, by eliminating the definition of “consumer property” in the door-to-door sales statute in 1991, the legislature has defaulted to the general definitions in the KCPA and made way for transactions like those in the case at bar to be considered door-to-door sales, i.e., property purchased for business use.
We acknowledge Dealers’ reasoning that the 1973 statutory comments to K.S.A. 50-640 talk almost exclusively of home solicitations and the “Notice of Cancellation” set forth in the K.S.A. 50-640(b)(2) forces the consumer, if he or she wishes to cancel the transaction, to make the purchased property available to the seller “AT YOUR RESIDENCE.” However, we heed the call of the legislature to liberally construe the Kansas Consumer Protection Act to promote the policy of providing consumers with a 3-day cancellation period for door-to-door sales. K.S.A. 50-623(d).
The consumer transaction between Duranleau and Allen was a door-to-door sale. All the contracts, conversations, and negotiations were made at the Breakfast Club. The same one-on-one sales presentation that took place at the Breakfast Club just as easily could have occurred at someone’s home. Consequently, Duranleau was required under K.S.A. 50-640 to provide Allen with notice of a 3-day right of cancellation: (1) in boldface type near the space reserved in the contract for the signature of the consumer; (2) in a form entitled “NOTICE OF CANCELLATION” to be completed by the supplier at the time the consumer signs the door-to-door sales contract; and (3) orally at the time the consumer signs the contract. See K.S.A. 50-640(b)(l), (2), (5).
Pursuant to K.S.A. 50-640(b) it was a per se unfair and deceptive act or practice for Duranleau to fail to provide Allen with any of the statutory notices of her right to cancel the jukebox purchase. Although Allen had no notice of her right to cancel, she canceled the transaction within the 3-day cancellation period, which was permissible. Allen’s call to Jerry McDonald at Dealers requesting that he cancel the contract and then McDonald’s call to Cazel at Billiards & Games explaining the situation was sufficient notice of her intent to cancel the contract. She gave written notice canceling the contract to McDonald in a letter 3 weeks after the transaction.
Because we have found violations of the door-to-door sales statutes of the KCPA, Allen is entitled to damages. In the pretrial conference order, Allen claimed damages of $6,600 for lost profits, $414 for payment of the jukebox, and $2,000 for anticipated attorney fees. Under the remedies section of the KCPA (K.S.A. 50-634), Allen is entitled to a return of the $414 payment of the jukebox and reasonable attorney fees as determined by the lower court for defense of this lawsuit.
In her counterclaim and cross-petition, Allen asked for a fine of $5,000 for each and every violation of the KCPA. However, that claim for damages did not make it into the pretrial conference order. It appears Allen has waived that measure of damages. See Boyle v. Harries, 22 Kan. App. 2d 686, 690, 923 P.2d 504 (1996) (“K.S.A. 60-216[a] provides that a pretrial order controls the future course of the action "unless modified at the trial to prevent manifest injustice.’ ”).
As for Allen’s claim of lost profits, the trial court correctly found that since Allen failed to mitigate her damages, she was not entitled to damages for lost profits. Our courts recognize the general rule of law that
“one injured by reason of a breach of contract by another is under a duty to exercise reasonable care to avoid loss or to mitigate and minimize the resulting damage. The injured party is bound to protect himself if he can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided.” In re Estate of Stannard, 179 Kan. 394, Syl. ¶ 1, 295 P.2d 610 (1956).
The standard regarding mitigation of damages is well stated in Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 307, 510 P.2d 1212 (1973): “The rule ... is simply that damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense or humiliation.” See also Lindsley v. Forum Restaurants, Inc., 3 Kan. App. 2d 489, Syl. ¶ 5, 596 P.2d 1250, rev. denied 226 Kan. 792 (1979) (“The duty to mitigate damages is not an unlimited one and an injured party is required only to exert reasonable efforts to prevent or minimize his damages within the bounds of common sense.”).
The ultimate question is where liability should rest for Allen’s damages, and that will depend on whether Duranleau was an agent of Dealers, or Billiards & Games, or both.
The trial court correctly concluded Dealers’ Equipment Lease Agreement, signed by Alien, was governed by Article 2A of the Uniform Commercial Code, K.S.A. 84-2a-101 et seq. The lease is a “finance lease” as defined in K.S.A. 84-2a-103. Dealers role in this transaction was to provide financing. See Siemens Credit Corp. v. Newlands, 905 F. Supp. 757, 763 (N.D. Cal. 1994) (whether the transaction qualifies as a finance lease will be determined by the facts of each case). Consequently, under the terms of the lease and Article 2A of the Uniform Commercial Code, Dealers is entitled to disclaim warranties, and the lessee looks to the manufacturer or supplier for warranties. See AgriStor Leasing v. Meuli, 634 F. Supp. 1208, 1220 (D. Kan. 1986) (finance lessor not “merchant” and so makes no implied warranty of merchantability).
There is substantial competent evidence to support the trial court’s conclusion that Duranleau was not an express or implied agent of Dealers. Both of those types of agency concern the intentions between the principal and the agent and not the appearance to a third party or what the third party should have known. Kansas City Heartland Constr. Co. v. Maggie Jones Southport Cafe, Inc., 250 Kan. 32, Syl. ¶¶ 5, 6, 7, 824 P.2d 926 (1992). However, the court has overlooked the possibility of an apparent agency.
In Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, Syl. ¶¶ 1, 2, 3, 613 P.2d 1342 (1980), the court summarized agency law as follows:
“The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent.
“The authority of an actual agent may be either express or implied. It is an express agency if the principal has delegated authority to the agent bywords which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe die agent widi such an appearance of authority diat when the agency was exercised it would normally and naturally lead odiers to rely on the person’s acts as being audiorized by die principal.
“An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinaiy care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent.”
The trial court made no findings whether Duranleau was the apparent agent of Dealers. Dealers’ marketing strategy of blanketing the community with the Equipment Lease Applications and, in this case, the actions of Duranleau, promoted the appearance of an apparent agency. Also, the trial court did not make findings concerning whether Duranleau was an agent or independent contractor of Cazel, d/b/a Billiards & Games. The question is who paid Duranleau. Was Duranleau compensated by Dealers, Cazel, or both? The determination of what constitutes an agency and whether there is any competent evidence reasonably tending to prove its existence is a question of law. See Brown v. Wichita State University, 217 Kan. 279, Syl. ¶ 3, 540 P.2d 66 (1975), aff'd in part, vacated in part 219 Kan. 2, 547 P.2d 1015, cert. denied 429 U.S. 806 (1976); First National Bank of Denver v. Caro, 211 Kan. 678, Syl. ¶ 3, 508 P.2d 516 (1973); Hendrix v. Phillips Petroleum Co., 203 Kan. 140, Syl. ¶ 8, 453 P.2d 486 (1969). However, the weight to be given evidence and the resolution of conflicts therein are functions of the trier of fact. See Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 371, 548 P.2d 719 (1976); Thurman v. Cundiff, 2 Kan. App. 2d 406, 412, 580 P.2d 893 (1978).
We therefore reverse for the reasons set out above and enter judgment for Allen. We also remand for findings of fact and conclusions of law as to whether Duranleau was an agent of Dealers, Billiards & Games, or both. We also remand for a determination of reasonable attorney fees for Allen.
Reversed and remanded. | [
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Marquardt, J.:
Antonio C. Moore appeals his convictions for robbery and theft. Returning to their car after shopping in August 1995, Christie Brown and her fiance, Chad Schieb, saw a car parked diagonally next to theirs that looked “suspicious.” As Brown neared the trunk of her car, Moore emerged from his vehicle. Moore approached Brown and said, “Give me your keys.” Brown tossed her keys to Moore, because she felt “threatened.” Moore entered Brown’s car and took her car stereo. Moore returned to his car and drove away with Brown’s stereo and her keys.
Two days later, Angela Bryant went to her part-time job. She left her purse, a cellular phone, and some other personal items locked in her car. When Bryant returned to her car after work, she noticed that her cellular phone was missing, her purse was open on the back seat, and her wallet was missing.
Later that day, Moore was arrested. Officers found pay stubs belonging to Bryant in Moore’s vehicle. After Moore was in custody, Brown and Schieb were shown a photo lineup. Brown and Schieb identified Moore.
Moore was convicted of robbery and theft after a jury trial. Moore appeals his convictions.
When the sufficiency of the evidence is challenged, the question is whether, after a review of all the evidence, viewed in a light most favorable to the prosecution, a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Moore argues that there is no objective evidence of any threat to Brown. Moore asserts that relying on subjective evidence of fear does not provide evidence that he is guilty of robbery beyond a reasonable doubt.
“Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: (1) Obtaining or exerting unauthorized control over property.” K.S.A. 21-3701(a)(l).
Kansas has not defined what constitutes threat of bodily harm. Generally, actual fear need not be strictly proven; the law will presume fear if there are adequate indications of the victim’s state of mind. 67 Am. Jur. 2d, Robbery § 24, p. 79. In U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997), the court held that there was sufficient evidence to prove robbery when Mitchell merely approached the teller’s window and said, “This is a holdup.” The court looked to three factors in making its decision: (1) whether the situation appeared dangerous; (2) whether defendant intended to intimidate; and (3) whether the victim’s fear of death or injury was reasonable. 113 F.3d at 1531.
There is no question that Moore intended to intimidate Brown to get her keys; however, there is a question as to whether there was a threat of bodily harm. Brown was 18 years old when she was approached by Moore. She testified that it was between 7:30 and 8 p.m. and starting to get dark. She said that Moore was “out there going to do something, but we kind of caught him in the middle of his tracks so he didn’t know what to do.” When asked, “How did the man take your keys from you?” Brown answered, “He just asked generally for my keys and I just gave them up because I didn’t want any kind of a problem.” She stated that she was afraid so she tossed the keys to him when he was about 5 feet away. When asked, “Why [did] you do that, why did you give him your keys?” Brown responded, “Well, whenever someone asks for my things that I don’t know, I’m going to give it to them if I feel threatened.” On cross-examination, Brown said that no one threatened her, there were no weapons involved, no one said, “I’ve got a gun”, “I’ve got a knife”, or “I’m going to kill you.” The question is whether being scared and feeling threatened rises to the level of reasonable fear of death or injury.
In State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), the Supreme Court held that it is not robbery when the thief gains peaceable possession of the property and uses no violence except when resisting arrest or escaping. Moore obtained possession of the car keys peaceably and without violence to Brown. There was no resistance by Brown. Under these circumstances, there is no basis for concluding that Moore took Brown’s keys by force or by threat of bodily harm; therefore, we cannot affirm Moore’s conviction for robbery, and the sentence for that conviction must be vacated. There was, however, sufficient evidence to support the lesser included offense of theft. Where a defendant has been convicted of the greater offense of robbery but the evidence supports only the lesser included offense of theft, the conviction for robbery should be vacated and the case remanded for defendant to be re-sentenced on the conviction of theft. See State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993). Moore’s case is remanded to the district court for resentencing for the conviction of theft.
Moore asserts that the State violated his due process rights by commenting on his post-arrest silence in its cross-examination of him and in its closing argument. A verdict shall not be set aside, nor shall the judgment based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record a timely objection to the evidence, stating clearly the grounds for the objection. K.S.A. 60-404.
Kansas courts have considered this statutory bar to be absolute. In State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994), the court was asked to set aside the contemporaneous objection rule in favor of a clearly erroneous standard. The court refused, citing the statutory obligation to have a contemporaneous objection on the record before the admission of evidence may be considered on appeal. Accord State v. Sims, 265 Kan. 166, 960 P.2d 1271 (1998); State v. Littrice, 23 Kan. App. 2d 1016, 940 P.2d 78, rev. denied 262 Kan. 966 (1997).
Moore objects to questioning by the prosecutor regarding Moore’s statements to the police after he was arrested. Moore initially claimed that he was not present while the crimes were being committed. The prosecutor attempted to impeach Moore’s testimony at trial concerning his whereabouts while the crimes were being committed. The prosecutor also mentioned during closing argument Moore’s failure to tell the truth to the police.
Reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument to the juiy when no contemporaneous objection was made. State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989). Improper remarks made in closing ar gument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant so that defendant is denied a fair trial. State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991).
There is no evidence in the record that Moore’s counsel made a contemporaneous objection to any statement made by the prosecution. Moore admits that his counsel did not object during questioning by the prosecution. The issue of whether the evidence was correctly admitted has not been preserved for appeal. K.S.A. 60-404. No objection was made to the cross-examination of Moore and, therefore, his claim of denial of constitutional due process rights is without merit. The statements made by the prosecutor during closing argument were not so gross and flagrant as to prejudice the jury against Moore and did not deny him a fair trial. The theft conviction is affirmed.
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Pierron, J.:
In this adoption case, T.P., the natural father of A.P., a minor child, appeals the district court’s termination of his parental rights. T.P. argues; (1) He was not unfit pursuant to K.S.A. 59-2136(h)(2) by clear and convincing evidence; (2) the court erred in using factors under the Kansas Code for Care of Children (KCCC); (3) the adoption petition was deficient and the termination petition was not verified; (4) the decision to terminate was contrary to the evidence because he was incarcerated; and (5) the trial court erred in not hearing the adoption petition for which he gave his consent. We affirm.
On August 25, 1997, T.P was convicted of the first degree murder of P.H., the natural mother of A.P., and sentenced to life imprisonment. S.O. (P.H.’s sister) was appointed the guardian and conservator for A.P. Apparently, T.P. consented to the guardianship.
On October 8, 1997, S.O. and her husband petitioned for the adoption of A.P. A.P.’s maternal grandparents filed a petition pursuant to K.S.A. 59-2132(h) stating S.O. and her husband were good parents and positive role models for A.P. T.P. entered an answer and objection to the petition for adoption. He stated he would not consent to the adoption. He also answered that he had not been found to be an unfit parent, his parental rights had never been terminated, and at the time of the filing of the petition, A.P. had not been found to be a child in need of care under the KCCC.
S.O. and T.O. petitioned the court for a termination of T.P.’s parental rights pursuant to K.S.A. 59-2136, that T.P. be determined as unfit under K.S.A. 38-1583, and that A.P. be determined to be a child in need of care under K.S.A. 38-1501 et seq. T.P. filed an answer and objection to the termination petition. As part of his objection, T.P. submitted an executed petition for adoption of A.P. by his sister and brother-in-law. Attached to the petition was T.P.’s consent to the adoption. That petition for adoption was filed on December 19, 1997.
The trial court conducted 2 days of hearings on the appellees’ motion to terminate T.P.’s parental rights. In its ruling, die court stated tbat based on the pleadings filed with the court, the action was a proceeding filed pursuant to K.S.A. 59-2136 and the petition requested a determination under K.S.A. 59-2136(h)(2) tiiat T.P. was unfit as a parent and that his consent for the adoption was unnecessary. The court found that pursuant to K.S.A. 38-1583, certain considerations should be made in terminating parental rights.
The trial court found by clear and convincing evidence that T.P. had engaged in conduct toward A.P. that was of an emotionally abusive nature, including shouting, outrage, intimidating outbursts, and outbursts of temper. The court stated this factor, K.S.A. 38-1583(b)(2), is conduct which affects the emotional and physical well-being of a child.
The trial court also considered conviction of a felony under K.S.A. 38-1583(b)(5). As stated above, T.P. had been convicted of first-degree murder and will be incarcerated for a minimum of 25 years. The court found by clear and convincing evidence that T.P. had murdered A.P.’s natural mother and specifically rejected T.P.’s mitigation of his acts. The court stated T.P.’s version of the incident was physically and medically impossible.
The trial court found there was clear and convincing evidence that T.P. had a propensity toward, and had engaged in, numerous incidents and outbursts of violence and displays of outrage and aggression against P.H., culminating in her murder. The court cited one instance when T.P. pushed P.H., one instance when he kicked her, and one when he hit her in the head with the butt of a handgun. The court also mentioned that T.P. introduced a firearm into a heated and argumentative situation and had done this on prior occasions.
The trial court stated the testimony clearly established conduct by T.P., pursuant to K.S.A. 38-1583(b)(2), which was harmful to A.P.’s emotions and could also be physically harmful. The court also stated pursuant to K.S.A. 38-1583(b)(8) that T.P. was aware his prior conflicts and prior incidents had given rise to distress and potential harm and injuiy to other parties, and he exhibited a lack of effort to adjust his circumstances or conduct to meet the needs of his child. The court concluded the evidence established that T.P. was unfit by conduct rendering him unable to properly care for A.P. and the conduct was unlikely to change in the foreseeable future. T.P.’s parental rights were terminated.
First, T.P. argues the trial court failed to find by clear and convincing evidence that he was unfit pursuant to K.S.A. 59- 2136(h)(2). From the substance of his argument T.P. suggests, without supporting authority, that the court must find he failed in all seven factors listed in K.S.A. 59-2136(h) in order to terminate his parental rights. It seems he also argues that the mitigation of the other factors prevented termination of his parental rights. T.P.’s argument is without merit. K.S.A. 59-2136(h) clearly provides that when a father appears in an adoption proceeding, the court may terminate his parental rights “upon a finding by clear and convincing evidence, of any of the following [seven factors].”
Next, T.P. argues the trial court erred in applying criteria for severing parental rights under the KCCC to severing parental rights in this adoption proceeding under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq.
K.S.A. 38-1583, of the KCCC, provides the factors for the court to consider in terminating parental rights. T.P. argues the trial court cannot use these factors since a child must be adjudicated to be a child in need of care before the court can terminate parental rights under the KCCC. See K.S.A. 38-1583(a); In re J.L., 20 Kan. App. 2d 665, Syl. ¶ 1, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995) (“A prior child in need of care adjudication is a mandatory prerequisite to the termination of the parent/child relationship.”). He argues there has never been a finding that A.P. was a child in need of care and there certainly was not such an adjudication at the time S.O. filed her petition. He argues the court should have used the Chapter 59 criteria supported by case law to terminate his parental rights.
Alternatively, T.P. argues that if this court finds the trial court properly considered the termination factors in the KCCC, the proper procedures were not followed under the KCCC. He suggests that in order to use the K.S.A. 38-1583 factors, the court must follow the proper procedures in K.S.A. 1998 Supp. 38-1582(a) and (b), namely, the court must give proper notice of the hearing and notice to grandparents within 10 business days before the hearing. He also states that K.S.A. 38-1533 does not provide for service of summons, notice of hearings, or other process on counsel of record in lieu of the parent.
K.S.A. 59-2136(h) provides that a court may terminate the parental rights of a father who appears at an adoption proceeding if the court finds by clear and convincing evidence the existence of any of seven factors. K.S.A. 59-2136(h)(2) provides for termination when “the father is unfit as a parent or incapable of giving consent.” However, K.S.A. 59-2136(h) provides no assistance in what factors a court can or must examine in determining that a father is unfit.
Kansas case law has created a working definition of parental unfitness. In Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), the court quoted from In re Vallimont, 182 Kan. 334, 340, 321 P.2d 190 (1958), for the court’s examination of the term “unfit.”
“While the standard of fitness required of parents is difficult to specify without being somewhat ambiguous, conduct which makes a parent unfit may be defined within limits. There is no statutory definition of the word ‘unfit.’ It therefore must be given its ordinary significance, having due regard to the context. In general, the word means unsuitable, incompetent, or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.” 230 Kan. at 153.
The Kansas Legislature has also helped in forming a working definition of parental unfitness in the context of child in need of care proceedings. K.S.A. 38-1583(b) provides a nonexhaustive list of eight factors the court shall consider in determining that a parent is unfit by reasons or conduct which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future:
“(1) Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental and emotional needs of the child;
“(2) conduct toward a child of a physically, emotionally or sexually cruel or abusive nature;
“(3) excessive use of intoxicating liquors or narcotic or dangerous drugs;
“(4) physical, mental or emotional neglect of the child;
“(5) conviction or a felony and imprisonment;
“(6) unexplained injury or death of a sibling;
“(7) reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family; and
“(8) lack of effort on the part of the parent to adjust the parent’s circumstances, conduct or conditions to meet the needs of the child.”
K.S.A. 38-1583(c) provides four additional considerations the court shall consider when the child is not in the physical custody of the parent:
“(1) Failure to assure care of the child in the parental home when able to do SO;
“(2) failure to maintain regular visitation, contact or communication with the child or with the custodian of the child;
“(3) failure to carry out a reasonable plan approved by the court directed toward the integration of the child into the parental home; and '
“(4) failure to pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay.”
These twelve factors help define parental unfitness.
In making the determination that T.P. was an unfit parent, the trial court took into consideration the factors used in K.S.A. 38-1583(b) to terminate parental rights under the KCCC. The KCCC was the logical statutory framework for the trial court to draw upon in determining parental unfitness since the term “unfit” is not defined in the Kansas Adoption and Relinquishment Act. This does not mean the court found A.P. to be a child in need of care or that the court treated this as a termination of parental rights following the adjudication of a child in need of care. The case at bar was clearly an adoption proceeding where the court held a hearing to determine whether a father was unfit in order to dispense with consent for the adoption. The court’s use of the factors under the KCCC was not erroneous and was, in fact, quite logical.
We agree with T.P. that a parent’s right of custody and control of his or her children are liberty interests protected by the Fourteenth Amendment Due Process Clause. See In re J.L., 20 Kan. App. 2d 665, Syl. ¶ 2. We also recognize that a natural parent’s right to the custody of his or her children is a fundamental right protected by the Fourteenth Amendment to the United States Constitution which may not be disturbed by the State or by third persons absent a showing the natural parent is unfit. See In re Guardianship of Williams, 254 Kan. 814, Syl. ¶ 1, 869 P.2d 661 (1994). We find this case presents such a showing of parental unfitness.
We apply a substantial competent evidence standard of review in examining this case.
“To terminate parental rights in an adoption proceeding, the duty of an appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the trial court’s findings. An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. It must review the evidence in the light most favorable to the party prevailing below.” In re S.M.Q., 247 Kan. 231, 234, 796 P.2d 543 (1990).
With these rules in mind, we have searched the record to determine whether there is substantial competent evidence to support the trial court’s decision that T.P. is an unfit parent. In our view, the record, in the case at bar, contains ample evidence to support the trial court’s decision that T.P. was unfit as a parent.
The trial court based its finding on 5 factors. First, T.P. engaged in conduct toward A.P. that was of an emotionally abusive nature, including shouting, outrage, intimidating outbursts, and outbursts of temper. Second, T.P. was convicted of first-degree murder and would be incarcerated for a minimum of 25 years. Third, the murder was of A.P.’s natural mother. Fourth, T.P. had a propensity toward, and had engaged in, numerous incidents and outbursts of violence and displays of outrage and aggression against the natural mother. Last, T.P. failed to adjust his circumstance or conduct to meet the needs of his child.
Simply in passing in his appellate brief, T.P. states that if this court concludes the trial court properly used factors under the KCCC, the evidence does not support a finding that he exhibited conduct toward A.P. of a physically, emotionally, or sexually cruel or abusive nature as described in K.S.A. 38-1583(b)(2). T.P.’s allegation is unpersuasive, and we find there was substantial competent evidence to support the trial court’s finding.
We believe the fact that T.P. murdered A.P.’s mother, and, therefore, denied A.P. of her mother’s love and affection, is definitely an issue to be considered. We find T.P.’s argument that just because he killed the child’s mother does not mean that he is a bad father to be abstractly possible but realistically unlikely. Assuming the child would have knowledge of this fact, it is obvious that would cause immense problems in fostering a close parental relationship.
T.P.’s underlying emotional and other problems, in addition to the fact that he will be in prison during all of A.P.’s minority, are strong additional factors the court was correct in considering as they affected the father’s ability to parent.
T.P. also argues, pursuant to K.S.A. 59-2136(d), that the evidence must show that he failed or refused to assume the duties of a parent (both love and affection duties and financial support) for the 2 years immediately proceeding the filing of the petition for adoption in order to establish his unfitness as a parent. See In re Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 (1995). In the case at bar, we are not concerned with parental duties, K.S.A. 59-2136(d), or stepparent adoptions. Rather, we are concerned with a parent whose parental rights have been terminated because he was found to be unfit under K.S.A. 59-2136(h)(2) and, conversely, not concerned with dispensing with T.P.’s consent because he failed or refused to assume parental duties. Cf. In re Adoption of K.J.B., 265 Kan. 90, 959 P.2d 853 (1998).
Next, T.P. argues the petition for adoption was deficient because it did not comply with K.S.A. 59-2128(a)(l)(B), (D), (E), (F) and (G). He states the petition did not include the time and place of the child’s birth, the current residence of the child, the date of birth, residence and address of living parents, and whether the Uniform Child Custody Jurisdiction Act (UCCJA), the Interstate Compact on Placement of Children, and the Indian Child Welfare Act applied. He also states the petition did not include a copy of the birth certificate and the proper written parental consents or facts eliminating the necessity of obtaining parental consent.
T.P. also states the petition for termination of his parental rights was not verified, but merely signed by the S.O.’s attorney. He states there was no verification to constitute sufficient proof of the statements made therein. T.P. cites K.S.A. 59-2201 and K.S.A. 1998 Supp. 59-2213 for authority that all petitions in a probate proceeding shall be signed and verified by the petitioner and said verification shall constitute sufficient proof of the statements made in the petition.
T.P.’s authority for claiming reversible error is that Kansas courts have consistently held that adoption statutes should be strictly construed in favor of maintaining the rights of the natural parents. See In re Adoption of F.A.R., 242 Kan. 231, 235-36, 747 P.2d 145 (1987); In re Sharp, 197 Kan. 502, Syl. ¶ 1, 419 P.2d 812 (1966). T.P. simply argues both the adoption petition and the termination petition should be set aside because they are deficient.
The first time T.P. raised the issues of defective adoption petition and unverified termination petition was in his post-trial motion requesting the court to set aside the termination and reconsider the decision to terminate his parental rights. T.P.’s failure to timely object to or address the insufficiencies of the pleadings under these facts constitutes a waiver.
The guardian ad litem (GAL) responds that issues involving alleged defects in the adoption proceeding are not germane to the termination of T.P.’s parental rights unless they deprive the court of jurisdiction. The GAL states T.P. does not ask for any relief due to the defects and he makes no claim the defects affected the court’s jurisdiction.
Considering the issue on its merits, a motion to reconsider is in substance a motion to alter or amend the judgment. Caplinger v. Carter, 9 Kan. App. 2d 287, Syl. ¶ 1, 676 P.2d 1300, rev. denied 235 Kan. 1041 (1984). Our standard of review is abuse of discretion. See Webber v. Mejford, 43 F.3d 1340, 1345 (10th Cir. 1994); Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 441, 970 P.2d 526 (1998); 11 Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2818 (1995) (abuse of discretion is well-settled standard of review on motion to alter or amend).
First, we find no merit in T.P.’s lack of verification argument. T.P. recognizes that lack of verification is not a jurisdictional defect. See In re Estate of Shaffer, 203 Kan. 264, Syl. ¶ 1, 454 P.2d 1 (1969) (“The verification of a petition filed in probate court under the provisions of K.S.A. 59-2201 does not pertain to substance, but to form, and neither an imperfect verification, nor a lack of verification, constitutes a defect in pleading affecting jurisdiction.”). Further, the Shaffer court, citing Dubbs v. Haworth, 102 Kan. 603, 171 Pac. 624 (1918), held that the failure to verify a claim filed in probate court is a defect which may be waived. 203 Kan. at 270. The lack of verification is at this point waived.
Second, the Kansas Supreme Court has addressed the invalidity of an adoption petition based on a party’s failure to list all the information required in a petition by K.S.A. 59-2128. In In re Adoption of J.H.G., 254 Kan. 780, the court applied the doctrine of substantial compliance to a deficient adoption petition. The court stated:
“Where a document filed contemporaneously with a petition for adoption includes the requisite information, though that information is not included in the petition for adoption itself, a party has substantially complied with the requirements of K.S.A. 1993 Supp. 59-2128. Substantial compliance with K.S.A. 1993 Supp. 59-2128 can also be found even when neither the petition for adoption nor the documents filed contemporaneously with the petition include some of the required information, if it is clear that the information lacking has no bearing on the adoption in the case at bar.” 254 Kan. 780, Syl. ¶ 10.
Because the UCCJA, the Interstate Compact on the Placement of Children, and the Indian Child Welfare Act were not issues in this case, the absence of this information from the petition for adoption does not preclude a finding of substantial compliance here. K.S.A. 59-2128 does require the petition to include whether these three acts are applicable. However, it would seem that the purpose of this requirement is merely to insure that the trial court is informed when those acts do apply. Because the adoption proceedings were not affected by the lack of the information in the adoption petition, the petition for adoption substantially complies with the requirements of K.S.A. 59-2128. See In re Adoption of J.H.G., 254 Kan. at 798.
We also agree with the trial court that any defect the adoption petition had in failing to list A.P.’s current residence, the living parent’s date of birth, residence and address, and the facts elimi nating the necessity of obtaining T.P.’s consent were cured at the pretrial proceedings and in the evidence presented at the termination hearing. By virtue of the additional evidence presented to the court, we find the petition substantially complied with K.S.A. 59-2128. The trial court did not abuse its discretion in denying T.P.’s motion to reconsider.
Finally, T.P. argues the trial court erred by not hearing the adoption petition entered by his sister and brother-in-law when he consented to their adoption of A.P. T.P. argues it was unnecessary to terminate his parental rights because he had given his voluntary consent to the adoption of his daughter by them. He maintains their adoption petition should have been allowed to move forward and not be postponed by the termination proceedings.
T.P.’s parental rights were terminated on June 16, 1998. The journal entry reflecting that was filed with the district court on July 9,1998. T.P.’s sister and brother-in-law withdrew their petition for adoption on July 22, 1998. Consequently, all issues surrounding their adoption petition have been rendered moot. Appellate courts do not decide moot questions or render advisory opinions. It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matters in issue before the court. See Shanks v. Nelson, 258 Kan. 688, Syl. ¶¶ 1 and 2, 907 P.2d 882 (1995). We do not see this situation as one that would cause us to depart from our usual practice to not decide moot issues.
For future similar situations, the Kansas Legislature has addressed some of the issues of this case. In 1998, the legislature passed two provisions in the KCCC to address the rights to a child of a parent who is convicted of killing the other parent of the child, effective July 1, 1998. See L. 1998, ch. 139, §§ 8, 9; K.S.A. 1998 Supp. 38-1583(h) and K.S.A. 1998 Supp. 38-1585(a)(7). We also note it was the facts of this case and others similar to it that generated the legislation. See House Bill 2820, Minutes of the Senate Committee on Judiciary, March 11, 1998. The legislation established a legal presumption of unfitness of a parent who kills the other parent and allows the court to disregard the convicted parent’s opinions or wishes in regard to the placement of the child.
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Lewis, J.:
In this garnishment action, Stephanie J. Vanover garnished funds owing by Edward J. Vanover. The funds were owed to Stephanie from unpaid judgments for attorney fees, alimony, and child support. Stephanie was successful, and Edward appeals.
In 1976, Edward and Stephanie were divorced. At that time, Edward was ordered to pay $150 per month in child support and $50 in spousal maintenance.
In 1983, Edward and Stephanie entered into an agreement, whereby Stephanie agreed to defer and forebear the enforcement of her child support judgment and her maintenance judgment until Edward had concluded litigation against Kansas City Life Insurance Company, his former employer. This agreement, while not filed of record, is shown by written correspondence between the parties. In consideration for the agreement on Stephanie’s part to defer her collection of amounts owed to her, Edward agreed that, upon the conclusion of his lawsuit, he would pay $200 per month child support.
In September 1996, Edward prevailed in his lawsuit against Kansas City Life and recovered a judgment in the amount of $1,400,250.
This lawsuit arises under circumstances which make it appear that Edward is attempting to take advantage of Stephanie’s agreement to defer the collection of judgments. The fact is, in the litigation, Edward takes the position that the past due judgments for maintenance and child support became dormant and are void and uncollectible. These are the same judgments that Stephanie agreed to forego collection on until Edward finished his litigation.
We are uncertain as to Edward’s motivation in this matter. Ultimately, the trial court awarded Stephanie judgment in the amount of $64,646.82, along with $11,000 in attorney fees. These amounts were ordered garnished by the trial court.
At or shortly after he filed his notice of appeal, Edward was required to post a supersedeas bond. He did so, and per his own request, part of the condition of the supersedeas bond was that the court distribute $21,800 from the garnished funds to Stephanie, with $11,800 of those funds to be applied to the principal of child support and alimony owing to her and $10,000 of said funds to be applied to accrued interest.
If we were to reach the merits of Edward’s arguments concerning dormancy of the judgments for child support and alimony, we would, in all probability, conclude that by his conduct he would be estopped to raise the dormancy issue. See, e.g., Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997). However, we do not reach the merits of that issue.
We conclude that the payments directed by Edward on the judgments entered against him amounted to an acquiescence in those judgments.
Acquiescence in a judgment cuts off the right of appellate review. We say so because acquiescence is simply the voluntary compliance with all or part of the judgment. In order for us to find that a party has acquiesced, it must be shown that the party has either assumed burdens or accepted burdens of the judgment which is being contested. Younger v. Mitchell, 245 Kan. 204, 206-07, 777 P.2d 789 (1989). It is clear in this state that a party who voluntarily complies with a judgment cannot thereafter adopt an inconsistent position and appeal that judgment. Troyer v. Gilliland, 247 Kan. 479, Syl., 799 P.2d 501 (1990).
On one hand, Edward would attempt to convince us that he is excused from paying any unpaid child support and alimony because the judgments were dormant. On the other hand, Edward paid $21,800 on the judgment entered by the trial court. The voluntary partial payment of a judgment constitutes acquiescence. Varner v. Gulf Ins. Co., 254 Kan. 492, 866 P.2d 1044 (1994).
Whether in a particular case a payment is voluntary depends upon the facts of the case, and the issue is whether there is an intention on the part of a payor to waive his or her legal rights. Younger v. Mitchell, 245 Kan. at 209. The mere fact that payment was made following the issuance of execution does not render the payment involuntary. Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, 60, 671 P.2d 1126 (1983). Although Edward did make an effort to halt the execution on the judgment for the purposes of appeal, he inserted a condition of partial payment on the judgment to become part of his supersedeas bond. The condition was contained in the motion for the bond drawn up by Edward’s counsel, and the notice of partial satisfaction of the judgment served upon Edward stated that the payment was “pursuant to the oral requests of the defendant.” Edward’s voluntary partial payment of the child support or maintenance judgment clearly constituted ac quiescence as to those parts of the judgment involving child support and maintenance.
Stephanie’s attorney in this case argues that we should not reach the issue of acquiescence. We disagree. The acquiescence is plain and obvious, and we will not and cannot ignore it.
The judgment in this case was at least three-fold. There was a judgment for past due child support, a judgment for past due maintenance, and a judgment for attorney fees. We hold that Edward has acquiesced in the judgment for child support and maintenance, but he has made no payment on the judgment for attorney fees entered in this action. “Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.” McDaniel v. Jones, 235 Kan. 93, Syl. ¶ 2, 679 P.2d 682 (1984).
The trial court awarded Stephanie $11,000 in attorney fees pursuant to K.S.A. 1998 Supp. 60-1610(b)(4). That provision allows costs and attorney fees to be awarded to either party as justice and equity require.
Edward argues that 60-1610(b)(4) cannot have application to a proceeding in garnishment. This argument is based primarily on the following statement in the Supreme Court opinion of Bollinger v. Nuss, 202 Kan. 326, 342, 449 P.2d 502 (1969): “A proceeding in garnishment is regarded as a special and extraordinary remedy provided by statute. The statutory provisions governing the exercise of such a proceeding are conclusive and exclusive of all other provisions of the code of civil procedure pertaining to civil actions generally.” (Emphasis added.) (Citing Domann v. Pence, 185 Kan. 702, 347 P.2d 373 [1959]; Reed v. Ziegler, 175 Kan. 635, 265 P.2d 855 [1954]; Cole v. Thacker, 158 Kan. 242, 146 P.2d 665 [1944].)
Based on Bollinger, Edward argues that the only authority for awarding attorney fees in a garnishment is K.S.A. 1998 Supp. 60-721(a)(5), which allows attorney fees to a garnishee owner.
Bollinger is 30 years old, but we believe it is still the law of this state. It is true that certain exceptions to that rule have been crafted by the court, but they do not control the issue raised in this action. Stephanie argues that the decision has been overruled; we disagree, and can find no decision of the Kansas Supreme Court specifically overruling Bollinger or disapproving of the same.
In Coleman v. Holecek, 542 F.2d 532 (10th Cir. 1976), attorney fees were awarded in a garnishment action under K.S.A. 40-256. The insurance company, the garnishee, appealed, arguing that under Bollinger, the award of attorney fees under K.S.A. 40-256 was improper. The federal court disposed of Bollinger, stating:
“Not only is Bollinger questionable authority for the position taken by Allstate, the very language relied on by Allstate is inapplicable to the case at bar. Bollinger states only that the garnishment provisions of the code of civil procedure preempt any other provisions of the code of civil procedure. However, K.S.A. 40-256 is not part of the code of civil procedure but, rather, is found in the insurance code. The court therefore concludes that the specific provisions of 40-256 of the insurance code providing for the award of attorney’s fees in cases such as this one take precedence over the more general provisions of the code of civil procedure, including the garnishment statutes found therein.” 542 F.2d at 539.
It is apparent that in Coleman an award of attorney fees under chapter 40 was not prohibited. In this case, however, we have an award of attorney fees based on 60-1610, which, unlike the situation in Coleman, is a provision of the Code of Civil Procedure.
In Farmco, Inc. v. Explosive Specialists, Inc., 9 Kan. App. 2d 507, 684 P.2d 436 (1984), we followed the decision in Coleman and allowed an award of attorney fees under K.S.A. 40-256 and 40-2004 in a garnishment action. As with Coleman, the facts of Farrnco are not controlling in this case. There is no insurance company in this case, there is no insurance contract in this case, and there is no attempt to award attorney fees under chapter 40 in this case.
The question is whether the garnishment procedure is exclusive of all of the provisions of the civil code when it comes to awarding attorney fees.
We conclude that it is. There is no doubt that the instant matter is a garnishment action, but pursuant to article 7, chapter 60 of the Code of Civil Procedure. The garnishment statutes are complete, in and of themselves, even to the extent of having their own statute providing for the allowance of attorney fees. Under these circum stances, it would appear that the most specific authority for the award of attorney fees in this case would be 60-721(a)(5). However, that statute would not allow attorney fees to be awarded as they were by the trial court.
We do not believe that the award of attorney fees under K.S.A. 1998 Supp. 60-1610(b)(4) was appropriate. That statute starts by providing:
“A decree in an action under this article may include orders on the following matters:
“(4) Costs and attorney fees may be awarded to either party as justice and equity require. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney’s name in the same case.’’ (Emphasis added.)
A careful reading of the statute reveals that an action “under this article” is and can only be an action under article 16 of chapter 60 of the Kansas Statutes Annotated. This case is an action litigated under article 7 of chapter 60 of the Kansas Statutes Annotated. We conclude that by its own terms, 60-1610(b)(4) cannot be used to award attorney fees in a garnishment action.
We also hold that under Bollinger, the garnishment statutes “are conclusive and exclusive of all other provisions of the code of civil procedure pertaining to civil actions generally.” 202 Kan. at 342. This, of course, means that the garnishment statute providing for the award of attorney fees is exclusive and takes precedence over the provisions of 60-1610(b)(4).
Edward’s appeal of the trial court’s award for unpaid alimony and child support is dismissed for lack of jurisdiction due to the acquiescence of judgment. The trial court’s award of attorney fees is reversed.
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Fairchild, J.:
U.S.D. #229 and its insurer, Kansas Association of School Boards (respondents), appeal from an order of the Workers Compensation Board (Board), awarding claimant Jeri Farrell permanent partial disability benefits.
We agree with the Board and affirm.
Claimant was employed as a teacher at Blue Valley Middle School. On December 2, 1992, while supervising students in the school gym, claimant was struck on the left side of her face with a basketball. Claimant was off work for the next 2 days. For the remainder of the school year, claimant took additional sick leave days or partial days which cumulatively totaled at least 5 days because of the work-related injury.
On September 29,1994, claimant was again supervising students in the gym when she was struck on the left side of her face with a volleyball. Though claimant continued to work that day, she subsequently missed nonconsecutive work days totaling over 5 days. Claimant received sick leave benefits for all absences due to the 199z and 1994 injuries.
Respondents argue claimant failed to satisfy the requirements of K.S.A. 1992 Supp. 44-501(c). Specifically, they argue that claimant was not disabled from working for 5 consecutive days and that claimant’s receipt of sick leave compensation equates with earning full wages for any days off work.
At issue is interpretation of K.S.A. 1992 Supp. 44-501(c), which states in relevant part:
“Except for liability for medical compensation, as provided for in K.S.A. 44-510 and amendments thereto, the employer shall not be liable under the workers compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which the employee is employed.”
The Board affirmed the administrative law judge’s award of 10% permanent partial disability benefits, 5% of which was attributed to the first injury and 5% to the second injury. The Board concluded that 5 nonconsecutive days of work satisfies the 1-week disability requirement of K.S.A. 1992 Supp. 44-501(c) and, further, that sick-leave pay is not wages earned at the work at which the employee is employed.
The parties also disagreed about whether claimant’s sick days were a result of disability arising from the work-related injuries and whether days off totaled at least 5 days after each injury. The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law subject to review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.; Roberts v. J.C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997). We will affirm the Board’s ruling absent proof of an arbitrary disregard of undisputed evidence or some other extrinsic consideration such as bias, passion, or prejudice. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 870, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996).
The Board’s ruling that claimant was disabled from work as a result of her injuries for at least 5 days per injury is supported by substantial competent evidence. That leaves for determination the issues of whether the term, “a period of at least one week,” includes a nonconsecutive 5-day period and whether the claimant’s receipt of sick leave pay is the same as “earning full wages at the work at which the employee is émployed.”
Interpretation of a statute is a question of law. Our review of a question of law is unlimited. Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 871, 936 P.2d 297 (1997). Respondents argue that the plain language of K.S.A. 1992 Supp. 44-501(c) requires 5 consecutive disability days off work. They rely on both Osborn and Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 911 P.2d 198 rev. denied, 260 Kan. 991 (1996).
The issue in Boucher was whether a claimant could recover permanent partial disability benefits “where he did not miss any work as a result of his injury.” 21 Kan. App. 2d 979. Respondents suggest that the claimant in Boucher “missed some time from work” because Boucher attended physical therapy sessions two to three times per week for approximately 4 weeks following his injury. We cannot glean from Boucher whether the claimant missed any work by virtue of his physical therapy appointments. More importantly, whether Boucher could accumulate days off to meet the requirements of K.S.A. 1992 Supp. 44-501(c) was not an issue.
Respondents also rely on the legislative history cited in Boucher. The Boucher court noted that the 1975 amendment to K.S.A. 44-501(c) permitted an employee who incurs medical expenses from a work-related injury yet loses no time from work to receive compensation for those expenses. The statute which preceded the 1975 amendment provided that the employer was not liable under the Act for disability benefits or medical expense payments if the claimant was not disabled for a period of at least 2 weeks. 21 Kan. App. 2d at 981-82. The Boucher court points out that the Speaker of the House, in calling for a meeting to discuss amending the statute in 1975, expressed concern that “state employees hurt on the job cannot have [medical] expenses paid unless they are off 7 days.” 21 Kan. App. 2d at 982. The Boucher court states: “The legislature intended there be a 7-day waiting period before coverage under the Act.” 21 Kan. App. 2d at 982. This statement in Boucher is dicta. Moreover, there is no authority for the statement in the legislative history recounted by the court. The legislature’s primary concern in making the 1975 amendments seems to have been to provide medical expense payments for persons who had not met the disability waiting period.
We do not interpret the legislative history or plain language of the statute as requiring a waiting period comprised of 7 days. The statute, as it existed during the time period relevant in this case, does not define the period in question using the term “7 days.” Rather, the statutory language speaks of “a period of at least one week [during which the employee is prevented] from earning full wages at the work at which the employee is employed.” [Emphasis added.] K.S.A. 1992 Supp. 44-501(c). Thus, the period in question is a period during which the claimant would normally be earning wages for work performed. A normal work week is comprised of 5 working days. The purpose of this statutory provision is to provide a means of eliminating insignificant injuries from coverage under the Act. See Raffaghelle v. Russell, 103 Kan. 849, 850-51, 176 P.2d 640 (1918).
Likewise, the Osborn case does not support the respondents’ position. The Osborn court noted that the “[claimant testified, and the Board found, that claimant has missed no work as a result of his injuries, nor has he suffered any loss of wages.” 23 Kan. App. 2d at 870. Thus, the issue before this court was not addressed in Osborn.
In response to the Boucher decision, the legislature in 1996 amended 44-501(c) ehminating all reference to the language interpreted in Boucher and questioned here. L. 1996, ch. 79, § 1. The legislature also enacted language expressing its intent that the amended 1996 version of 44-501(c) apply retroactively. K.S.A. 1998 Supp. 44-501a; L. 1996, ch. 79, § 2. The panel in Osborn found that the rights provided in the statute were substantive vested rights and, as such, could only apply prospectively. There fore, following Boucher, the claimant’s award of permanent partial disability benefits was reversed. 23 Kan. App. 2d 874-75.
Respondents maintain K.S.A. 1992 Supp. 44-501(g) requires impartial application of the Act to employees and employers alike and the Board improperly applied a liberal interpretation in favor of the injured employee. To this end, respondents interpret 44-501(c) as requiring a claimant to have a medically documented disability from performing his or her job functions for a period of 5 consecutive days. We find 44-501(g) does not change the policy requiring liberal construction of the workers compensation law to effectuate the underlying policy of the Act for both employee and employer. See Kinder v. Murray & Sons Construction, 264 Kan. 484, 493, 957 P.2d 488 (1998).
The Board found that claimant was disabled from performing her job for a cumulative period of at least 1 week or 5 working days. The record supports this finding. We decline to add additional conditions to those already imposed by K.S.A. 1992 Supp. 44-501(c) on an employee attempting to establish a disability from performing his or her job. An employee who continues to perform his or her job in face of a work-related injury but is required to be off the job from time to time should not be penalized. A primary purpose of the Workers Compensation Act is to return employees to work at a comparable wage. K.S.A. 44-510g(a). We find that public policy dictates that a period composed of 5 nonconsecutive days off work satisfies the condition that a claimant be disabled for a period of at least 1 week under K.S.A. 1992 Supp. 44-501(c). This effectuates the underlying purpose of the Workers Compensation Act for both employee and employer. The employee is not penalized by continuing to work when able, and the employer is not faced with employees who must sit at home for a week to insure their right to benefits.
The last issue we must address is whether claimant was disabled from earning full wages. Respondents argue that claimant never suffered a loss of wages because she received annual paid sick leave during her period of absence from work.
We recently held that sick-pay benefits did not meet the definition of “wages” under K.S.A. 44-511. Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 375-76, 947 P.2d 440 (1997). For purposes of interpreting 44-501(c), when an employee is off work and is receiving sick-pay benefits, he or she is not earning wages. We further note that in the modern work environment, nearly every employer provides some form of sick leave pay. Respondents’ interpretation of wages would essentially nullify the purpose of the statute at issue here.
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PlERRON, J.:
This case involves a dispute between members of the New Jerusalem Church of God in Christ (New Jerusalem Church) located in Liberal, Kansas, and the national Church of God in Christ (National Church) located in Memphis, Tennessee. The argument concerns who owns and controls a certain church building located in Liberal.
From its inception in 1979, the New Jerusalem Church (previously the Holy Sanctuary Church of God in Christ) was affiliated with the National Church. In connection with that affiliation it was also a member of the Kansas Southwest Jurisdiction Church of God in Christ and the Church of God in Christ, Inc., state and national organizations, respectively.
Pastor Allen Johnson was the founding pastor of the Holy Sanctuary Church of God in Christ. A service was held for the acceptance of the Holy Sanctuary Church into the Kansas Southwest Jurisdiction. It was attended by the members of the congregation and officials of the National Church. The name of the church was later changed to New Jerusalem Church of God in Christ.
The appellants and founding members claim indifference to the entire foundation process and deny that they specifically wanted their group to become a Church of God in Christ. They contend they simply wanted to establish a permanent church for their musical ministry in Liberal. Pastor Johnson testified that no objections were raised by the members of the church to becoming a Church of God in Christ, and some of the members told him they always wanted to be members of the Church of God in Christ organization.
In 1980, Pastor Johnson and members of the church negotiated an agreement with the First Baptist Church for the installment contract purchase of a building in Liberal. The Board of Trustees of the First Baptist Church entered into a contract of sale with the Board of Trustees of the Holy Sanctuary Church of God in Christ: Calvin Baker, James Witherspoon, Nate Witherspoon, Earnest Powell, Bernard Witherspoon, and Carl Cunningham.
By mid 1985, the purchasers were in default for nonpayment of the installments. Calvin Baker testified the First Baptist Church was threatening foreclosure and he felt called by God to do something to save the church building. Not content with a passive stance, Baker obtained a loan from Citizen’s State Bank in Liberal to buy the building. The Board of Trustees of the Holy Sanctuary Church quitclaimed the property back to the First Baptist Church. The First Baptist Church then sold the property to Baker.
Baker testified that he was contacted by the National Church as to his intentions after satisfaction of the mortgage. Baker said he would deed the property back to the membership of the Holy Sanctuary Church and signed a notarized statement to that effect. By 1993, the mortgage had been paid by church offerings and Baker’s personal funds. Making good on his promise, on August 10, 1993, Baker deeded the property to the New Jerusalem Church of God in Christ.
In February 1994, Raymond Dunn was appointed pastor of the New Jerusalem Church. Over the next year, a disagreement developed between Dunn and members of the church. Jurisdictional Bishop J.C. Gilkie testified the members were dissatisfied with Dunn because they felt he was not a very aggressive pastor and not a proper leader for the church. By late 1995, the disagreement escalated to the point where the New Jerusalem Church asked Dunn to step down as pastor. He refused. The New Jerusalem Church submitted a written request to Bishop Gilkie asking for Dunn’s removal. The Bishop refused.
Certain members of the New Jerusalem Church then changed the locks to the church building for the purpose of denying Dunn access and entry. On the advice of Bishop Gillde, Dunn removed the locks. Dunn testified the locks were subsequently changed three times. In the meantime, a deed dated January 25, 1996, was executed by the “New Jerusalem Church of God in Christ by Board of Trustees, James Witherspoon, Napolean Devorce, Hosea Cohens, Ulysses Washington, [and] Essie Witherspoon” to .the “Board of Trustees of New Jerusalem Church.” The deed was recorded with the Seward County Register of Deeds.
At this point, Bishop Gilkie intervened, and together with Pastor Dunn, applied for a restraining order and temporary and permanent injunctions. They asked that the deed of January 25,1996, be set aside and that title to the real estate in question be quieted in the New Jerusalem Church of God in Christ and held in trust for the use and benefit of the members of the National Church.
After a 2-day trial and submission of written arguments, the trial court granted the National Church’s petition. The court found the New Jerusalem Church was clearly a member of the National Church, and the Januaiy 25, 1996, conveyance was void. Title to the property was quieted in the New Jerusalem Church, to be held in trust for the use and benefit of the members of the Church of God in Christ, with national headquarters in Memphis, Tennessee. The New Jerusalem Church appeals.
Where the trial court has made findings of fact and conclusions of law, the appellate court’s review is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P. 2d 929 (1993).
The jurisdiction of the courts to address matters involving church affairs is limited. Purely theological questions and matters ecclesiastical in character must be determined by the authorities of the particular church involved according to its laws and usage. Civil courts have no jurisdiction to review or control the decisions of duly constituted church authorities. However, when church-related controversies involve civil or property rights, the civil courts will take jurisdiction and decide the merits of the case in order to assure regularity of business practices and the right of private use and ownership of property. See Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422, 506 P.2d 1135, reh. denied 211 Kan. 927, 508 P.2d 849 (1973) (court considered whether a board of trustees had authority to convey church property absent approval of members of the congregation).
The applicable civil law respecting religious societies governed by trustees is clear in this state and does not differ significantly from the law in jurisdictions across the country. When a local religious organization has acquired property through the contributions and sacrifices of many members, past and present, all of whom have adhered to certain doctrines regarded as fundamental to a particular national denomination, no faction may be permitted to divert the church property to another denomination or to the support of doctrines, usages, and practices basically opposed to those characteristic of the particular denomination. See Gospel Tabernacle, 211 Kan. 420; Huber v. Thorn, 189 Kan. 631, 371 P.2d 143, reh. denied 190 Kan. 125, 372 P.2d 579 (1962); Dawkins v. Dawkins, 183 Kan. 323, 328 P.2d 346 (1958); Whipple v. Fehsenfeld, 173 Kan. 427, 249 P.2d 638 (1952), cert. denied 346 U.S. 813 (1953); Hughes v. Grossman, 166 Kan. 325, 201 P.2d 670 (1949); United Brethren, Etc., v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, 103 P.2d 877 (1940); Jackson v. Jones, 130 Kan. 488, 287 P. 603 (1930).
The New Jerusalem Church has not appealed the trial court’s decision to void the deed of January 25, 1995. In its reply brief, the New Jerusalem Church candidly states: “To focus the issue on . . . appeal, defendants admit that the trial court’s action with respect to the January 25, 1996 deed was correct. Defendants do not admit that the trial court’s reasoning was correct, as a matter of law, in making that decision, but it was nonetheless the correct decision.” In essence, the New Jerusalem Church admitted it did not have the authority to deed the property away from the National Church.
The New Jerusalem Church states the issue for this court’s resolution is who is the beneficiary of Calvin Baker’s August 10,1993, deed to New Jerusalem Church. The board of trustees is clearly the trustee of the property, but the question is whether the prop erty is held in trust for the local church or the National Church. See K.S.A. 17-1726; Kansas Title Standards Handbook, Religious Bodies, 6.4 (6th ed. 1995).
The Church of God in Christ, Inc., is a 91-year-old ecclesiastical organization. Numerous local churches are a part of its hierarchial system. See Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 49 L. Ed. 2d 151, 96 S. Ct. 2372, reh. denied 429 U.S. 873 (1976) (Supreme Court recognized that the Orthodox church was a “hierarchical church,” with a governing body, set rules of procedure, and an internal appeals procedure). The Church of God in Christ is typically organized with various bishops and district superintendents. See Church of God v. Middle City Ch. of God, 774 S.W.2d 950, 951 (Tenn. App. 1989).
The National Church has duly adopted a constitution and bylaws which apply to its local churches. Jurisdictional Bishops are responsible for ensuring local compliance with the National Church’s doctrinal and other policies and are empowered to appoint and remove pastors for the local churches within their jurisdiction. See Church of God in Christ, Inc. v. Graham, 54 F.3d 522, 524 (8th Cir. 1995). Part I, the Constitution, Article III, Part 2, Section D, ¶¶ 5, 9, and 11 of the Official Manual of Church of God in Christ provides as follows:
“5. A local church, which has been accepted by the Church of God in Christ and issued a Certificate of Membership, shall not have the legal right or privilege to withdraw or sever its relations with the General Church, except by and with the permission of the General Assembly.”
“9. Real Estate or other property may be acquired by purchase, gift, devise, or otherwise, by local churches. Where real or personal property is acquired by deed, the instrument of conveyance shall contain the following clause, to wit:
‘The said property is held in trust for the use and benefit of the members of the Church of God in Christ with National Headquarters in the City of Memphis, Shelby County, Tennessee, and subject to the Charter, Constitution, Laws and Doctrines of said Church, now in full force and effect, or as they may be hereafter amended, changed or modified by the General Assembly of said Church.’ ”
“11. No deed, conveyance or mortgage or [sic] real estate of a local church shall be binding on the Church of God in Christ unless the execution of said instrument lias been approved in writing by the Jurisdictional Bishop having jurisdiction over said local church.”
This case is not a typical “schism case” where two factions argue over church doctrine or a fundamental change practiced or advocated by a faction in the manner or conduct of worship services, teaching, or other matter of church function. See Gospel Tabernacle, 211 Kan. at 422-24. Rather, it began as a dispute over the competence of the pastor. The New Jerusalem Church argues it neither attempted to exclude any “member” of the church from the church building nor renounced the National Church, only that it wanted a new pastor. The New Jerusalem Church contends that the members “only disavowed their willingness to permit [the National Church] to take control of real property which, they, as the local congregation, had acquired, paid for, and maintained for their purposes of providing a place for musical ministry.”
The evidence clearly supports the finding that after the Jurisdictional Bishop did not provide the members of the New Jerusalem Church with a resolution of their problems with Pastor Dunn satisfactory to them, they changed the locks to prevent him from entering the premises. When that failed to deter Pastor Dunn, the members then executed the deed conveying the property to an organization which did not specifically denote a connection with the National Church. Pastor Dunn testified that after the 1996 deed was executed, James Witherspoon showed him the deed and said the New Jerusalem Church was no longer a part of the National Church. This case therefore does not involve a schism over doctrinal beliefs, but a disagreement over ownership and control of church property.
The New Jerusalem Church does not, for the most part, deny its affiliation with the National Church. In any event, there is substantial competent evidence to support the trial court’s ruling that the New Jerusalem Church is a member of the Kansas Southwest Jurisdiction and the National Church organizations. Since 1979, no one has questioned the membership of Holy Sanctuary Church of God in Christ, now the New Jerusalem Church, in the National Church.
The New Jerusalem Church maintained a longstanding, formal affiliation with the National Church. There was continual, substantial participation of the New Jerusalem Church and its members in the national, state, and district meetings, activities, and functions. Pastors of the New Jerusalem Church were appointed by the Jurisdictional Bishop of the Kansas Southwest Jurisdiction and given a certificate of appointment as pastor of the local church. The New Jerusalem Church made state and national “reports,” which were financial contributions to help carry on the business of the National Church. The National Church issued a certificate of membership to the local church.
The New Jerusalem Church argues that while it certainly participated in the National Church, there is no evidence the congregation ever gave up its secular authority over the local church. It argues the trial court incorrectly found that since it had submitted to tire discipline of the National Church that a deed to the trustees of the New Jerusalem Church was the equivalent of a deed to the trustees for the benefit of the National Church. The New Jerusalem Church also argues the court erred in finding that Baker s intention to deed in trust for the National Church was clear upon the face of the deed.
The New Jerusalem Church cites the early case of Fink v. Umscheid, 40 Kan. 271, 19 Pac. 623 (1888), in which the plaintiffs, representing the Catholic Church and congregation of Rock Creek, filed an action to cancel the deed executed by the bishop of the denomination of which said church was a part. The record disclosed the land was purchased by the congregation through the priest, to be used and cultivated for that particular church. The bishop claimed that under the rules and regulations of the Catholic Church, all property was held by the bishop for the benefit of the Catholic Church at large and that he had the right to sell and control the same at his pleasure. The court ruled the property was held in trust for the benefit of the Rock Creek church and the action of the bishop in selling and conveying the land was in violation of that trust. 40 Kan. at 274.
Based on Fink, the New Jerusalem Church argues Kansas law permits unincorporated religious societies to purchase real estate, pay for it, and improve it; that the real estate thus purchased is held by the trustees for the benefit of the members of the society; and that the land cannot be conveyed away from them by higher church officials without the approval of the membership.
We see a distinction. In Fink, the land was being conveyed away from church ownership. That is the opposite of what is proposed here.
In Glader v. Schwinge, 336 Ill. 551, 168 N.E. 658 (1929), the court distinguished a deed to trustees for the benefit of a church society from a deed to trustees for the general body of any church denomination for the purpose of promoting a particular religious principle or doctrine of faith. The court stated:
“Where a deed to trustees for the benefit of a church society contains no express declaration of trust for the general body of any church denomination, or for the teaching or practice of any particular religious principles or doctrines of faith, the right to the possession, control and use of the property is solely in the members of the church society.” 336 Ill. at 557.
66 Am. Jur. 2d, Religious Societies § 51, pp. 804-05 provides:
“Where property is acquired by a religious society and the conveyance under which the title passes imposes no limitation upon the uses to which the property is to be devoted, so long as any existing organization can be ascertained to be that to which the property was granted, or its regular and legitimate successor, it is entitled to the use of the property.”
Again, we see distinctions in the present case that require clarification of this general language. In Church of God in Christ v. Cawthon, 507 F.2d 599, 602 (5th Cir. 1975), the court found that a local Church of God in Christ was a member of and subservient to the National Church. The court also decided the lower court was correct in enjoining a dissident faction from attempting to exercise acts of possessory control over the local church property and from interfering with the local church property and with the conduct of services therein by the local faction loyal to the National Church. The court held the deed to the newly created corporation was void.
Pursuant to Cawthon, the National Church argues that the members of the New Jerusalem Church, which is a member of the National Church and its hierarchical church structure, do not have the power and authority to possess and control church property or to execute a deed or conveyance of the church property without the consent of the Jurisdictional Bishop.
In Church of God in Christ, Inc. v. Stone, 452 F. Supp. 612 (D. Kan. 1976), the court held that an individual church or faction is free to secede from the National Church if it elects to do so. However, the seceding faction “cannot assume control over church property in this event when the effect of such action would be to devote the property to doctrines fundamentally different than those to which the property had been dedicated in trust prior to the schism.” 452 F. Supp. at 617.
In reply, the New Jerusalem Church cites Church of God in Christ, Inc. v. Graham, 54 F.3d 522 (8th Cir. 1995), involving a Church of God in Christ Church in Kansas City, Missouri. In Graham, the local church was ministered by the same pastor from the church’s inception in the 1960’s until his death in 1991. The pastor incorporated the local church and he never acknowledged it was subject to any regulatory oversight by the National Church. The articles of incorporation specifically declared the local church’s independence by stating “it is expressly understood that this corporation is not bound by or subject to oversight by any other ecclesiastical body,” and the local church’s bylaws stated “the corporation is not under the authority or jurisdiction of any bishop or any other person affiliated with the Church of God in Christ.” 54 F.3d at 524-25.
After a controversy with the replacement pastor, the National Church sought injunctive relief requiring the replacement pastor to vacate the pulpit, a declaration of the National Church’s interest in the local church property, and a reformation of the local church’s documents to properly reflect the required trust in favor of the National Church. The Graham court concluded the local church was independent from the National Church and that it should retain its property free of any claims of the National Church. 54 F.3d at 526-27. However, we note in the instant case that the local church had never disassociated itself from the National Church as had the local church in Graham.
Neither of the parties cite Church of God v. Middle City Ch. of God, 774 S.W.2d 950 (Tenn. App. 1989). There, the National Church sued a local church to set aside conveyances of real property and sought a technical adjudication of title to property to allow the transfer of the property to reflect the trust for the National Church. There was apparent friction between the National Church and the local church, but there was no evidence the local church had withdrawn from the national organization. The local church incorporated itself and then attempted to deed the property to the corporation without the trust language required by tbe National Church constitution.
Of import in the present case are several of the Middle City Ch. of God court’s conclusions of law as to the trust question:
“ ‘Our cases have consistently held that property conveyed to a local church which is a part of a connectional church does not remain the property of the local church even when there is no trust language in the deed. See Cumberland Presbyterian Church v. North Red Bank Cumberland Presbyterian Church, 430 S.W.2d 879 (Tenn. App. 1968); Hardin v. Starnes, 32 Tenn. App. 66, 221 S.W.2d 824 (1949). Therefore, when a local church acquires real property by deed, it is held in trust for the parent church even in the absence of express trust language. . . . See Fairmount Presbyterian Church, Inc. v. The Presbytery of Holston of the Presbyterian Church of the United States, 531 S.W.2d 301 (Tenn. App. 1975).
“ ‘According to these cases the law would appear to be established in Tennessee. A local church that is a part of a connectional church holds property in trust for the benefit of die superior organization.’ ” 774 S.W.2d at 952.
The New Jerusalem Church asserts its relationship with the National Church was insufficient to support an implied trust. An implied trust is created by implication of law based upon the presumed intention of the parties or based upon equitable principles independent of the particular intention of the parties. See Allbert v. Allbert, 148 Kan. 527, 530-31, 83 P.2d 795 (1938). The United States Supreme Court indicated in Watson v. Jones, 80 U.S. 679, 20 L. Ed. 666, 13 Wall. 679 (1871), that property held by a local congregation may be held by implied trust for a general church depending upon the relationship found in fact to exist between the local and general churches.
As discussed previously, the New Jerusalem Church had a continual, longstanding, and formal affiliation with the National Church. This relationship is sufficient to support an implied trust in favor of the National Church. See United Meth. Ch. et al. v. St. Louis, etc. Meth. Ch., 150 Ind. App. 574, 585, 589, 276 N.E.2d 916 (1971) (overwhelming evidence established an implied trust in favor of parent church was intended by local church and in fact established, and property was held in trust for use of general church). Consequently, we find the factors that contributed to the Graham court’s finding of independence by the local church are clearly not evident in the present case.
We also note that in a hierarchial church structure, courts have rejected the argument that a local church always has the right to control its own property if neither the general church nor the district church contributed to the acquisition of local church property. See Pilgrim H. Church v. First Pilgrim H. Church, 115 Ill. App. 2d 448, 456, 252 N.E.2d 1 (1969); Smart v. Wesleyan Meth. Church, 257 Ind. 17, 21-22, 271 N.E.2d 713 (1971).
We agree the evidence as found by the trial court shows an affiliation between the New Jerusalem Church and the National Church in the format of a hierarchical organization; that Baker had legal and equitable title to the property in question when he conveyed it to the New Jerusalem Church; and that upon said conveyance, the property then became subject to the policies and procedures of the National Church, including the trust implications and the requirement that any conveyance of the property be approved in writing by the Jurisdictional Bishop.
A local church, if it desires to remain independent of the influence of a parent church body, must maintain this independence in the important aspects of its operation, e.g., polity, name, finances. It cannot, as here, enter a binding relationship with a parent church which has provisions of implied trust in its constitution, bylaws, rules, and other documents pertaining to the control of property, yet deny the existence of such relationship. A local church cannot prosper from and enjoy the benefits afforded by a parent hierarchial church, participate in the functioning of that body, and then disclaim affiliation when the parent church acts contrary to the desires of the local church, so as to shield from equitable or contractual obligations the property acquired by the local church either before or during such affiliation.
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Marquardt, J.:
Bill’s Dollar Stores (Bill’s) and Lumberman’s Underwriting Alliance (Lumberman’s) appeal a decision of the Workers Compensation Board (Board) awarding Niesz a 60 percent work disability.
Niesz, a manager at Bill’s, was injured on February 12, 1996, when she pulled a box off a shelf. Niesz notified her supervisor and sought treatment for the injury. Niesz reinjured her back at work on April 11, 1996.
Lumberman’s sent Niesz to Dr. Miskew for treatment. On May 29, 1996, Dr. Miskew released Niesz to light duty work with no lifting over 10 pounds. Dr. Miskew determined that Niesz suffered from a 1 percent permanent impairment of the body as a whole with a 10.5 percent task loss. Niesz also saw Dr. Steven Hendler who determined that Niesz had a 5 percent functional impairment.
Bill’s allowed Niesz to perform light duty work. Niesz went to the store at night to do paperwork and performed other activities within her work restrictions.
In June 1996, a customer wrote a letter to Bill’s home office stating that Niesz “does not possess any sort of desirable people skills. She is rude, unfriendly and makes people feel very uncomfortable to shop in the store.” The customer also stated that Niesz had humiliated her 15-year-old daughter in front of other customers and left the store in tears. Two boys wrote the local newspaper and said that Niesz said: “You kids can not shop in the store without your parents.” A woman also wrote the local newspaper saying that Niesz “got quite testy with me and refused to take my check because my driver’s license was from out of the state.” Niesz’ employment with Bill’s was terminated on July 1, 1996. After her termination, Niesz attempted to find other employment at approximately 40 places. Niesz has been unable to find work. She testified that some of the business owners were concerned about the condition of her back.
Niesz filed an application for hearing with the Division of Workers Compensation on August 9,1996. The administrative law judge (ALJ) determined that Niesz suffered compensable injuries and gave her a permanent partial impairment of 5 percent. The ALJ ruled, however, that because Niesz continued to work after her second injury, she was precluded from a work disability rating. The ALJ cited K.S.A. 1998 Supp. 4-510e(a) and awarded Niesz the full amount of unauthorized medical expenses, prescription, and mileage costs.
Niesz filed an application for review, claiming she should receive a work disability award. The Board determined that Niesz should be given a 60 percent work disability beginning July 1,1996, which was the date of her termination, pursuant to K.S.A. 1998 Supp. 44-510e(a). Bill’s appeals the Board’s decision.
Bill’s contends the Board ignored Niesz’ ability to earn wages. Bill’s argues that when accommodated work is made available at comparable wages, and the work is no longer available due to the fault of the claimant, a work disability rating should be denied.
Appellate review of agency actions is limited to questions of law. Gleason v. Samaritan Home, 260 Kan. 970, 976, 926 P.2d 1349 (1996). The court’s interpretation of a statute is a question of law over which appellate review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
An employee is not entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury. K.S.A. 1998’ Supp. 44-510e(a).
This court analyzed K.S.A. 1998 Supp. 44-510e(a) in Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995). Lee was injured and missed approximately 7 months of work. He returned and performed accommodated duties until he was laid off 16 months later for economic reasons. The court found that, under the plain language of the statute, a claimant may be entitled to a work disability if he or she stops earning 90 percent of their average gross weekly wage. 21 Kan. App. 2d at 371.
The Lee decision was clarified by Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997). Watkins was injured but returned to work and performed the same work for the same wage. Watkins lost his job when the store was sold. This court found that Watkins was not entitled to a work disability rating. 23 Kan. App. 2d at 839-40. The court explained that placing an injured worker in an accommodated job artificially avoids work disability by allowing the employee to retain the ability to perform work for a comparable wage. Once an accommodated job ends, the presumption of no work disability may be rebutted. 23 Kan. App. 2d at 838-39.
The claimants in both Lee and Watkins lost their jobs due to economic circumstances. This court examined the question of whether an employee who is fired for cause is entitled to a work disability rating in Perez v. IBP, Inc., 16 Kan. App. 2d 277, 826 P.2d 520 (1991). This court held that once Perez returned to work, the presumption of no work disability applied. 16 Kan. App. 2d at 279.
Niesz performed accommodated work until she lost her job, as did the claimant in Lee. The fact that Niesz’ accommodated position ended does not mean that Niesz ceased having work restrictions. Niesz’ work disability made it difficult for her to find work in the open market. The presumption of no work disability does not apply because Niesz is no longer earning 90 percent of her preinjuiy wages. See K.S.A. 1998 Supp. 44-510e(a). These factors bring Niesz in line with the holdings of Lee and Watkins.
Bill’s claims that Niesz was terminated for cause, as was Perez. That case may be distinguished, as there is nothing in Perez to indicate that the claimant worked at an accommodated position after the injury.
Niesz contacted Ed Lee, Bill’s district manager, about the complaints and explained the circumstances of each of the allegations, and Lee thought that “everything that she had said sounded like she (Niesz) was the one in the right; and their response was we (Bill’s) just can’t have this type of thing, you know, regarding Bill’s Dollar Stores and our customer service aspects of it in the newspaper.”
Lee admitted that if children are being destructive in the store, the “manager has the right to ask the boys to not be present in the store without being accompanied by parents or adults.” Lee also testified that Bill’s had a policy to not accept a check if the customer does not have in-state identification. Niesz was never verbally counselled about these situations because Lee thought Niesz was right. Prior to Niesz’ termination, she had never been told by Bill’s that she had handled these situations incorrectly; yet, her termination notice stated: “Wetona, was terminated, due to not following company policy relating to customer service and several customer complaints.” Lee was told that the grounds for Niesz’ termination was that the complaints “ended up in the paper.”
Lee testified that Bill’s never investigated the complaints against Niesz and did not discuss the complaints with other Bill’s employees. The instant case is distinguishable from Ramirez v. Excel Corp., 26 Kan. App. 2d 139, 979 P.2d 1261 rev. denied 267 Kan. 889 (1999). In Ramirez, the claimant was terminated for failure to disclose a prior workers compensation claim on his employment application. Here, Niesz was terminated because customers had complained; however, there was no investigation into the validity of the complaints.
Bill’s reliance on Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994) rev. denied 257 Kan. 1091 (1995), is misplaced. The claimant in that case refused accommodated work that was within her restrictions. See Foulk, 20 Kan. App. 2d at 280. The record in this case shows that Niesz accepted accommodations and continued to work until her position was terminated. Thus, Foulk does not apply.
The Board correctly interpreted K.S.A. 1998 Supp. 44-510e(a). The presumption of no work disability is subject to reevaluation if a worker in an accommodated position subsequently becomes unemployed. The Board noted that Niesz did not display any bad faith, but instead demonstrated a strong work ethic. The Board correctly interpreted the law, and its decision will not be overturned on appeal.
The Board determined Niesz suffered a 100 percent wage loss and a 20 percent task loss, which averages to a 60 percent work disability. Bill’s claims the Board failed to address the issue of Niesz’ wage earning capacity. Bill’s claims the Board’s decision was not supported by substantial competent evidence.
The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Gleason, 260 Kan. at 976. This court does not reweigh the evidence or determine the credibility of the witnesses’ testimony. Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 56, 913 P.2d 612 (1995).
Michael Dreiling, Niesz’ vocational expert, testified Niesz suffered a 30 percent task loss. Gary Weimholt, Bill’s vocational expert, testified Niesz suffered a 16 percent task loss. It is undisputed that Niesz has been unemployed since her termination from Bill’s on July 1, 1996, suffering a 100 percent wage loss.
There is substantial competent evidence to support the Board’s decision.
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Prager: C.J.:
Ola L. Drake and her husband, Lionel Q. Drake, appeal from a judgment of the trial court granting Benedek Broadcasting Corporation (Benedek) a permanent injunction preventing the Drakes from picketing or threatening to picket advertisers on Benedek’s television station, WIBW-TV. On appeal, the Drakes claim that by restricting their picketing and faxing activities, the injunction violates their First Amendment rights. In addition, the Drakes maintain that the injunction is an unconstitutional prior restraint on speech. Finally, the Drakes question whether the injunction is an appropriate remedy.
Ola sued her former employer, Benedek, for violating the terms of her employment contract. After filing the suite, Ola and her hus band, Lionel, sent faxes, picketed, and threatened to picket several oí Benedek’s advertisers.
The faxes stated the following:
“This serves as notice [Name of Businesses] is scheduled to be picketed.
“The reason your business is being targeted is because of your support of WIBW-TV. You will see first hand, how the people of this community have sympathized with those holding the eight foot signs appearing at 21st and Wanna-maker [sic], saying “WIBW-TV EXPLOITS WOMEN’ and “WIBW-TV BREAKS CONTRACTS.’
“You can avoid being picketed by canceling your advertising on WIBW-TV. If you continue to support WIBW-TV, we will add the sign ‘[Name of business] SUPPORTS WIBW-TV.’ ”
Lionel also sent two-page faxes to several businesses. The first page stated:
“This serves as a courtesy notice that the attached flyer will be published to raise public and consumer awareness that [Name of Business] HELPS SUPPRESS FREE SPEECH.
“Every time you use the consumer’s hard earned money to buy advertising on CBS WIBW-TV, you aid and abet WIBW-TV’s war against free speech. You also help WIBW-TV pay huge law firms to uphold the theft of television programming, the exploitation of women, and the breach of contract.
“Right now as you read this courtesy notice, an all out war is being waged by WIBW-TV to suppress free speech and peaceful picketing. The ACLU is vigorously defending all Americans against the media giant’s tyranny. Once freedom and liberty prevails against the media tyrants at WIBW-TV, [Name of Business] will also be picketed if you continue to support WIBW-TV.”
The second page stated: “[NAME OF BUSINESS] HELPS SUPPRESS FREE SPEECH.” ■
The Drakes picketed several businesses that advertised on WIBW-TV. They picketed Laird Noller and Carpet One twice. They picketed A-l Appliance one or two times. When picketing, the Drakes carried two of the following signs: ‘WIBW breaks contracts,” “WIBW exploits women,” “Laird Noller Ford supports WIBW-TV,” “Carpet One supports WIBW-TV,” “A-l Appliance supports WIBW-TV,” and/or ‘WIBW-TV steals programming.” They also picketed WIBW-TV about 12 times.
Benedek moved for a permanent injunction seeking to enjoin the Drakes from picketing, sending faxes, and calling its advertís ers. Benedek alleged that the Drakes were tortiously interfering with its business relationships with its advertisers and were causing monetary losses to Benedek.
Although the evidence failed to show that any business canceled advertising due to the picketing, two of Benedek’s advertisers testified that if they had been picketed, they would either stop or not resume advertising on WIBW-TV until the picketing issue had been resolved.
Ola testified that the purpose of the picketing was to raise public and consumer awareness about the exploitation of women at WIBW-TV and about WIBW-TV breaking contracts. Lionel testified that they were picketing to raise public and consumer awareness of the breach of contract and events that occurred between Ola and WIBW-TV.
The trial court granted a temporary restraining order restricting the picketing to only the parties involved in the dispute. The Drakes were limited to picketing WIBW-TV at its place of business or in any public area.
The Drakes discontinued all activities. Approximately 6 months after the temporary restraining order was issued, Lionel sent faxes to several of WIBW-TV’s advertisers.
After a hearing, the trial court granted a permanent injunction, finding that the purpose of the letters threatening to picket and the picketing was to encourage and intimidate the businesses not to advertise on WIBW-TV due to the dispute over Ola’s employment. The trial court also found that Benedek did not sustain any financial losses as a result of the activities by the Drakes. The trial court found, however, that WIBW-TV was under direct threat of losing advertising revenues due to the picketing.
In its memorandum decision, the trial court noted that the First Amendment does not protect a secondary boycott motivated by economic concerns. The trial court then found that the picketing constituted a secondary boycott motivated by economic concerns. The trial court did not limit a direct boycott or picketing of WIBWTV. Finally, the trial court found that an injunction was the only available remedy to protect innocent third parties from the private economic dispute with WIBW-TV.
Standard of Review
The issues presented on appeal require this court to determine if the trial court’s conclusions of law concerning the scope of the protection afforded by the First Amendment are correct and whether the facts support the trial court’s findings. Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997); Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993). Determinations of fact which are not appealed from are final and conclusive. Justice v. Board of Wyandotte County Comm’rs, 17 Kan. App. 2d 102,109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992). An appellate court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Freedom of Speech
First, the Drakes argue that the permanent injunction restricting their picketing and faxing activities against WIBW-TV’s advertisers violates their right to freedom of speech under the First Amendment to the United States Constitution.
In support of their position, the Drakes rely primarily on the decision of the Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409, reh. denied 459 U.S. 898 (1982). In Claiborne, the Court held that a secondary boycott motivated by political issues was protected by the First Amendment, regardless of a state’s broad power to regulate and protect economic activity. See also Environmental Planning & Information Council v. Superior Court, 36 Cal. 3d 188, 195-96, 203 Cal. Rptr. 127, 680 P.2d 1086 (1984) (a secondary boycott moti vated by political concerns is protected by the First Amendment). In this case, the trial court distinguished the Drakes’ situation from Claiborne by noting that the Drakes’ activities involved only economic concerns and not political concerns.
“Secondary picketing” is defined as picketing which is calculated to involve neutral employers and employees in a labor dispute with the primary employer. Hawaii Elec. Light Co. v. IBEW, Local 1186, 844 F. Supp. 1381, 1387 (D. Hawaii 1993). “Primary picketing” is designed to exert pressure on the employer, while “secondary picketing” is designed to bring pressure on one other than the employer. Papermakers Union v. Old Dominion, 210 Va. 132, 135, 169 S.E. 2d 445 (1969). In Labor Board v. Fruit Packers, 377 U.S. 58, 63, 12 L. Ed. 2d 129, 84 S. Ct. 1063 (1964), the Supreme Court recognized that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. Labor Board, 341 U.S. 694, 705, 95 L. Ed. 2d 1299, 71 S. Ct. 954 (1951), the Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment.
The Drakes do not dispute the trial court’s classification of their activity as a secondary boycott resulting from a labor dispute or that the Supreme Court has held this activity is often unprotected by the First Amendment.
Federal law prohibits a labor union from engaging in a secondary boycott, including picketing. 29 U.S.C. § 158(b)(4)(ii)(B) (1994). Judicial action regulating activities such as these pursuant to the National Labor Relations Act have repeatedly been held not to violate the First Amendment. See for example NLRB v. Retail Store Employees, 447 U.S. 607, 616, 65 L. Ed. 2d 377, 100 S. Ct. 2372 (1980). These cases emphasize that Congress has recognized the need to protect neutral employers from the labor disputes of others.
Kansas also statutorily prohibits activities similar to those engaged in by the Drakes. In Kansas, a person is prohibited from picketing beyond the area of the industry within which a labor dispute arises. K.S.A. 44-809(13). This law is similar to the federal law prohibiting secondary picketing, except the federal law only applies to labor unions.
The Drakes incorrectly assert that the trial court relied on K.S.A. 44-809(13) as a basis for its decision. The trial court correctly recognized the inapplicability of the state and federal legislation to this case. It merely referred to this legislation to support its holding that this type of activity is not necessarily protected by the First Amendment.
Here, the Drakes take issue with the trial court’s finding that the picketing was motivated by a labor dispute rather than political concerns over treatment of women in the workplace and unfair business practices. However, the trial court’s finding that the Drakes picketed to interfere with WIBW-TV’s advertisers because of a labor dispute between Ola and WIBW-TV is supported by substantial competent evidence.
Substantial competent evidence supports the finding that the picketing was related to a labor dispute and for the purpose of interfering in WIBW-TV’s relationship with its advertisers. Despite statements at the hearing that the protests were about the general mistreatment of women at WIBW-TV, the signs used while picketing indicated the protest was about Ola’s contractual labor dispute with WIBW-TV. Lionel testified that the protest was about the mistreatment Ola received as an employee of WIBW-TV. The most compelling evidence that these protests to advertisers were conducted to interfere in WIBW-TV’s business relationships was the content of the faxes sent to each business prior to picketing. These faxes showed the Drakes’ intention was to force these businesses to terminate their relationships with WIBW-TV. The trial court also noted that the Drakes’ failure to continue picketing WIBW-TV after the temporary restraining order was in place was evidence that the Drakes’ main objective was to discourage business relationships between the advertisers and WIBW-TV rather than for political purposes.
Unconstitutional Prior Restraint on Speech
The Drakes next complain that the injunction constitutes an unconstitutional prior restraint on speech. In this case, it is important to note that the speech itself is not restricted but rather the injunction limits the place and manner of expression. Reasonable time, place, and manner restrictions on speech are recognized exceptions to the general prohibition against prior restraints. The Drakes are still able to continue picketing WIBW-TV. The trial court did not enjoin the Drakes from continuing to express their message concerning WIBW-TV but merely limited where such activity could take place and who it could target. It did so to protect the third-party businesses not involved in the labor dispute from being adversely affected by the activity. In this case, the government interest that the injunction serves to address is the protection of neutral parties from threats related to a private labor dispute. This interest has been recognized as a sufficient interest to warrant abridgement of First Amendment rights. In light of the fact that secondary boycotting is generally not protected when motivated by economic concerns and the restrictions here were content neutral, the injunction is not an unconstitutional prior restraint on the Drakes’ freedom of speech.
Appropriate Remedy
The Drakes’ final point is that a permanent injunction is not an appropriate remedy when there has been no judicial determination that the Drakes violated the law or committed an illegal act. We find this point to be without merit. Historically, the Supreme Court has stated that injunctions are remedies imposed for violations or threatened violations of a legislative or judicial decree and can be utilized without a showing of past wrongs. See Madsen v. Women's Health Center, Inc., 512 U.S. 753, 764-65,129 L. Ed. 2d 593,114 S. Ct. 2516 (1994).
Kansas has not limited this remedy to an activity that was found to have violated a law or was illegal. In Sheila A. v. Finney, 253 Kan. 793, 797, 861 P.2d 120 (1993), the court stated that “for an injunction to issue, there must be some indication that there is a threatened injury.”
In the present case, the trial court is providing relief from a threatened tortious interference with a contract. The trial court heard testimony regarding the effect the picketing was having on both the third-party advertisers and WIBW-TV and considered the Drakes’ intent behind their activity. Benedek has filed a counterclaim against the Drakes for damages resulting from the picketing. The trial court was provided sufficient information to determine that the injunction was being sought for protection against a threatened injury.
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Green, J.:
Innovative Health of Kansas, Inc., (Sterling Heights), a nursing home, appeals from the trial court’s judgment denying its motions for a new trial, judgment notwithstanding the verdict, and remittitur. Sterling Heights argues that the jury verdict was not supported by the evidence, that the verdict was excessive, and that the verdict exceeded the statutory cap of $250,000. Sterling Heights further argues that the verdict form was improper and that the trial court erred in instructing the jury. We affirm in part and reverse in part.
Bessie Moore entered Sterling Heights on May 11, 1992. On August 9, 1994, Pat Hoover, Moore’s daughter, sued Sterling Heights on her mother’s behalf. Hoover alleged that Moore had fallen and suffered injury on four separate occasions as a result of Sterling Heights’ negligence and carelessness. Specifically, Hoover alleged that Moore was injured in August 1992, when she fell from a wheelchair; in October 1992, when she was discovered on the floor by her bed; in February 1993, when she suffered a broken leg of unknown origin; and in March 1993, when she fell from the toilet.
Sterling Heights moved for partial summary judgment with regard to the August 10, 1992, wheelchair incident; the October 24, 1992, back injury; and the February 9,1993, broken leg injury. The trial court denied the motion and the case proceeded to jury trial. After a 6-day trial, the jury found Sterling Heights at fault for Moore’s injuries from each of the four incidents and awarded the following damages: $500 for pain and suffering and $5,000 for disability, mental anguish, and disfigurement for the August 1992 wheelchair incident; $50,000 for pain and suffering and $200,000 for disability, mental anguish, and disfigurement for the October 1992 incident where Moore was found on the floor by her bed; $7,500 for pain and suffering and $25,000 for disability, mental anguish, and disfigurement for the February 1993 broken leg incident; and $40,000 for pain and suffering and $100,000 for disability, mental anguish, and disfigurement for the March 1993 broken hip incident.
Next, Sterling Heights moved for judgment notwithstanding the verdict, new trial, remittitur, and to alter or amend judgment. After a hearing, the trial court denied the motions.
Motion for summary judgment
Sterling Heights moved the trial court for partial summary judgment with regard to three of the four incidents. In its motion, Sterling Heights stated: “The basis of this Motion for Partial Summary Judgement is that, as a matter of law, defendant is not hable for the alleged injuries suffered by Bessie Moore on 8-10-92; is not liable for the alleged ‘broken back’ injury of 10-24-92; and is not liable for the alleged ‘broken leg’ injury of 2-9-93.”
On appeal, Sterling Heights argues that the trial court erred in denying the motion with regard to the October 1992 and February 1993 falls. The standard by which this court reviews a trial court’s ruling on a motion for summary judgment has consistently been stated as follows:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show drat diere is no genuine issue as to any material fact and that die moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to die dispute must be material to the conclusive issues in die case. On appeal we apply the same rule, and where we find reasonable minds could differ as to die conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
“ ‘[A]n issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to die issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect die judgment, it does not present a genuine issue of a material fact.’ [Citation omitted.]” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
In its memorandum in support of its motion for summary judgment, Sterling Heights contended that there was no evidence that it had acted negligently in caring for Moore and that her falls and injuries were insufficient to prove negligence. Sterling Heights emphasized deposition testimony that Moore was prone to stress or spontaneous fractures because she was being treated with prednisone and suffered from osteoporosis. Sterling Heights argued that because Moore’s injuries could have resulted from sources other than the various falls, Hoover could not prove that Sterling Heights had breached its duty of care. Sterling Heights emphasizes that at the time of Moore’s falls in October 1992 and February 1993, there were no written orders for restraints. Sterling Heights further argues that “[ujnexplained falls, even where the resident is unattended, does not establish fault on the part of a nursing home. The duty of a nursing home does not include having someone follow the patient around at all times.”
For support, Sterling Heights quotes from Ánnot., 83 A.L.R. 3d 871, “Patient Tort Liability of Nursing Home,” § 2[b], and cites the cases therein which discuss the difficulty in proving causation in unattended fall, negligence cases. In her response to the motion for summary judgment, Hoover maintained that Sterling Heights failed to restrain Moore when restraints were ordered and neglected to report her various injuries to her physician. Hoover also contended that Sterling Heights failed to implement preventative procedures as it became increasingly clear that Moore was at risk for falls and injury. Hoover further contended that the issue of whether Sterling Heights had breached its duty of care to Moore should be a question for the jury.
The trial court found Hoover’s arguments persuasive and determined that Hoover had produced sufficient facts to raise a jury question as to causation and whether Sterling Heights had violated its duty to Moore. The trial court stated: .
“Although, especially as to the broken leg incident, plaintiffs evidence is not overwhelming, the court is of the opinion that the plaintiff has produced sufficient facts to present a question for the jury as to whether or not the defendant violated its duty to exercise reasonable care to avoid injuries to Ms. Moore. Not only are there questions of whether the duty was violated, but there are also questions of causation and damage which must be resolved by the jury.” (Emphasis added.)
In the instant case, the primary issue of causation was intensely disputed. Because there was conflicting evidence as to the causes of Moore’s injuries, genuine issues of material fact existed as to whether Sterling Heights breached its duty of care to Moore. Because summary judgment is only appropriate where there is no genuine issue as to any material fact, the trial court did not err in denying the motion for summary judgment. As a result, Sterling Heights’ argument fails.
Statutory cap
Sterling Heights argues that the trial court erred in failing to apply the statutory cap for noneconomic damages set out in K.S.A. 60-19a02, which states:
“(a) As used in this section personal injury action means any action seeking damages for personal injury or death.
“(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum of $250,000.
“(d) . . . If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss. . . .
“(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing on or after July 1,1988.” (Emphasis added.)
“Interpretation of a statute is a question of law, and this court’s review is unlimited. [Citation omitted.]” Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
In its brief, Sterling Heights argues that Hoover filed one personal injury action within the meaning of the statute and that the cap of $250,000 is applicable and should be applied to reduce the award. For support, Sterling Heights cites Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 856 P.2d 906 (1993). In Cott, the plaintiffs argued that the statutory cap only applies to negligence claims, and, therefore, the cap should not apply to their cause of action for breach of express warranties. Rejecting this argument, the court stated:
“The plain language of K.S.A. 1992 Supp. 60-19a02 requires noneconomic damage awards be capped at $250,000 in personal injury actions, which are defined as ‘any action seeking damages for personal injury or death.’ In other words, the statutory cap is applicable to any suit, including breach of express warranty, in which personal injuries are claimed, as in die case at bar.” 253 Kan. at 492.
Borrowing from Cott, Sterling Heights argues that this court should follow the plain language of the statute.
Conversely, Hoover argues that the cap should not apply because her lawsuit included four separate and distinct actions which could have been filed separately. For support, Hoover cites Jordan v. Long Beach Community Hosp., 201 Cal. App. 3d 1402, 248 Cal. Rptr. 651 (1988) (this opinion was ordered withdrawn from publication by the California Supreme Court and has no precedential value); Knowles v. United States of America, 544 N.W.2d 183 (S.D. 1996) (although parent’s action was derivative from child’s, there were two separate actions with regards to damages and, thus, two statutory caps); Sander v. Geib, Elston, Frost Pro. Ass’n, 506 N.W.2d 107, 126-27 (S.D. 1993) (statute limiting recovery for per sonal injury or death applies separately to cause of action for personal injury and cause of action for wrongful death). However, each of these cases is distinguishable as there were multiple plaintiffs in each case. Because these cases are factually distinguishable from the instant case, they furnish minimal guidance on this issue.
In ruling on this issue in Sterling Height’s motion for new trial, the trial court reasoned:
“The problem presented in this case by the wording of K.S.A. 60-19a02 is that plaintiff could have filed a separate lawsuit for each incident set forth in the petition since each involves allegations of a separate and distinct act of negligence on the part of the defendant and resulting injury on the part of the plaintiff. Pursuant to K.S.A. 60-218 diese claims may, but do not have to, be joined in a single lawsuit. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138 (1975). Thus, if die interpretation of the statute put forward by the defendant is adopted, the plaintiff is penalized for consolidating her claims into one lawsuit as permitted by the code of civil procedure.
“K.S.A. 60-19a02 refers to ‘personal injury action,’ ‘action’ and ‘causes of action’ at various places within the statute. It is the court’s belief that these terms are used by the legislature interchangeably and are intended by the legislature to mean die same thing. In Wells, Administrator v. Ross, 204 Kan. 676, 465 P.2d 966 (1970), die Supreme Court (quoting 46 Am. Jur. 2d, Judgments, § 406, p. 574) discussed die term ‘cause of action’ as follows:
“ ‘The term “cause of action” is not easily defined, and the authorities have laid down no thoroughly satisfactory and all-embracing definition; it may mean one thing for one purpose and somediing different for anodier. A fundamental test applied for comparing causes of action, for die purpose of applying principles of res judicata, is whedier the primary right and duty, and delict or wrong, are the same in each action. Under this test, there is but one cause of action where there is but one right in the plaintiff and one wrong on the part of die defendant involving that right. In general, it may be said that under die doctrine of res judicata, a judgment bars relitigation of the same controversy.’ 204 Kan. at 678-679.
Using diis definition, each of the plaintiff s claims in this case involves a separate cause of action.
“The court finds that under K.S.A. 60-19a02 when separate causes of action are joined together in the same petition, the cap on recovery of damages for noneconomic loss shall be applied separately to each claim in the petition which could have been die subject of a separate lawsuit had the plaintiff not chosen to join the claims in a single lawsuit.”
In the instant case, the parties quote equally applicable general rules of statutory construction. Sterling argues that the statute is clear and unambiguous and that this court should follow the plain language of the statute. In this vein, our Supreme Court has instructed:
“When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what die law should or should not be. . . . [W]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33,42-43, 955 P.2d 1228 (1998).
On the other hand, Hoover argues that Sterling Height’s interpretation of the statute discourages judicial economy. Hoover argues that this is an unreasonable interpretation of the statute.
“As a general rule, statutes are construed to avoid unreasonable results. [Citation omitted.] There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.]” ’ ” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
Since K.S.A. 60-218 was intended to promote judicial economy and prevent a multiplicity of lawsuits, Hoover’s argument that a separate cap should apply to each independent claim has merit. Nevertheless, the statutory language of K.S.A. 60-19a02(b) clearly states that “the total amount recoverable by each party from ail defendants for all claims for noneconomic loss shah not exceed a sum of $250,000.” (Emphasis added.) As a result, K.S.A. 60-19a02 mandates that noneconomic damages awarded for each of Hoover’s independent claims be aggregated under one statutory cap on noneconomic damages. Because the judgment for all of Hoover’s claims for noneconomic damages exceeded $250,000, the trial court erred when it failed to enter a judgment in the amount of $250,000 for noneconomic damages.
Motion for directed verdict
Sterling Heights also argues that the trial court erred in denying its motion for directed verdict. However, that motion was made orally at the close of tire plaintiff s evidence. Significantly, the motion was made outside the presence of the jury and was not tran scribed. Therefore, this court cannot review the arguments made in the motion or the trial court’s ruling for error. It is well settled that “ ‘[a]n appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails.’ ” McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994).
Motions for judgment notwithstanding the verdict and new trial
Sterling Heights also argues that the trial court erred in denying its motions for judgment notwithstanding the verdict and new trial as to the October 1992 and February 1993 falls. This court’s standard of review of a motion for judgment notwithstanding the verdict is the same as that for a directed verdict. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992) (quoting Turner v. Halliburton Co., 240 Kan. 1, Syl. ¶ 1, 722 P.2d 1106 [1986]).
“When appellate review is sought on a motion for directed verdict, ‘the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence,’ the trial court’s denial of die motion must be affirmed.” Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 342, 827 P.2d 1 (1992).
“ ‘The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion.’ [Citation omitted.]” Peppermint Twist, 253 Kan. at 458.
A. Judgment notwithstanding the verdict
In its judgment notwithstanding the verdict motion, Sterling Heights argued “[t]hat, as a matter of law, the evidence did [not] support a verdict for the Plaintiff in reference to the alleged four falls Bessie Moore sustained while a resident at Sterling Heights.” With regard to the October 1992 and February 1993 falls, Sterling Heights argued:
“On 10-24-92 Bessie Moore was found by a nurses aide lying on her right side on the floor. During the night of 10-22-92, Bessie Moore had attempted eight times to get out of bed and the nurses were alert enough during the night shift to prevent Bessie Moore from getting out of and/or falling out of bed. Based upon a call to Dr. Fulbright, restraint orders were issued restraining Bessie Moore during the night while in bed and during the day also while in bed. There were no other restraint orders in place. Bessie Moore was found at 9:00 a.m. on 10-24-92. This unexplained fall is not, as a matter of law, a basis for liability on the part of a nursing home. . . .
“On 2-9-93, while at Shawnee Mission Medical Center (SMMC), an x-ray disclosed that Bessie Moore suffered a non-displaced fracture of the left leg. Plaintiff s attorney attributes that to a fall at the nursing home in December 1992. There was no histoiy of a definite fall in December 1992 or in February 1993 and here again, we have an incident of an unexplained fall which, as a matter of law, does not support liability against this Defendant.
“[C]ases and other citations in support of this Motion can be found in this Defendant’s Motion for Partial Summary Judgment heretofore filed in this case. Then, the underlying rule of law is that unexplained and unpredictable falls such as those which occurred ... do not form a basis of liability on the part of the Defendant in this case.”
Sterling Heights reiterates these arguments on appeal and argues that the trial court erred in denying its motion for judgment notwithstanding the verdict. However, in ruling on the judgment notwithstanding the verdict motion, the trial court was required to resolve all facts and inferences drawn from the evidence in favor of Hoover. Thus, the trial court’s description of the evidence differed substantially from that presented by Sterling Heights. With regard to the October 1992 and February 1993 incidents, the trial court found that there was sufficient evidence to sustain the verdict. The trial court described the evidence as follows:
“B. Back injury. At 9:00 a.m. on October 24, 1992, Ms. Moore was found by a nurse’s aide lying on her right side on the floor near her bed. During the night of October 22,1992, Ms. Moore had attempted to get out of bed eight times, but did not fall. The incidents were reported to Ms. Moore’s physician, Dr. Fulbright, and he issued orders to restrain Ms. Moore during the night and during the day while in bed. These restraint orders were in place on October 24,1992, when the injury occurred. Sandra Wretling testified that the injury to Ms. Moore was caused by the negligence of defendant. Dr. Fulbright testified that the incident would not have occurred if his orders had been followed. If Ms. Moore was not restrained in bed she should have been in a geri-chair.
“C. Broken Leg. On February 9,1993, while in a weakened condition as a result of the back injury, Bessie Moore was taken to Shawnee Mission Hospital because of pain. An x-ray disclosed that Ms. Moore suffered a non-displaced fracture of the left femur. Plaintiff s medical experts testified that a fracture of a heavy bone such as the femur could not have occurred absent a fall or other trauma. At die time of the injury Ms. Moore was a ‘total assist’ patient. She could no longer function on her own. She had to have assistance in meeting all of her eveiyday needs. Sandra Wretling testified that it was a deviation from die standard of care imposed upon die defendant for the defendant to allow a person in Ms. Moore’s condition to sustain an injury such as the broken femur. Additionally, plaintiff introduced evidence that the defendant did not report the incidents as required by law. Plaintiff introduced testimony that this is negligence on defendant’s part. Plaintiff maintains that die failure to report is a proximate cause of the broken leg, in diat had the earlier incidents been reported and investigated by die State, die plaintiff would have known diat her modier was being inadequately cared for and could have removed her mother from defendant’s facility.”
In arguing that the trial court erred, Sterling Heights’ ignores the evidence in support of the verdict and emphasizes that which supports its motion. However, the trial court properly construed the evidence in the light most favorable to Hoover in ruling on Sterling Heights’ judgment notwithstanding the verdict motion. As a result, Sterling Heights’ argument fails.
B. New trial
Sterling Heights also argues that the trial court erred in denying its motion for new trial based upon a lack of evidence as to the October 1992 and February 1993 incidents. In its motion for new trial, Sterling Heights repeats the arguments made in its motion for summary judgment and judgment notwithstanding the verdict with regard to these two incidents. As set out above, ample evidence existed to support the jury’s finding that Sterling Heights breached its duty of care on these incidents. Thus, the trial court did not abuse its discretion in denying the motion for new trial on these issues.
In its motion for new trial, Sterling Heights also argued that the verdict was contrary to the evidence or given under the influence of passion or prejudice. On appeal, Sterling Heights repeats these arguments and states in its brief:
“The jury returned a total verdict of $102,000 for Bessie Moore’s pain and suffering and $330,000 for ‘disability, disfigurement and mental anguish.’
“There was no evidence that Bessie Moore was disabled or suffered mental anguish from any of these four (4) incidents. There was no evidence that she sustained any disfigurement in any of the first three (3) incidents. The surgical scar on her hip from incident four (4), was not described nor were photographs of it shown to die jury. As a result, disfigurement was not a proper element of damages in this case.”
Again, Sterling Heights points to evidence which supports its argument that there was a dearth of evidence to support the verdict. However, Sterling Heights fails to explain or respond to the trial court’s findings on this issue. In denying Sterling Heights’ motion for a new trial on this issue, the trial court noted the following testimony and stated:
“The defendant argues diat diere is insufficient evidence to support the jury’s award of damages to plaintiff for disability, disfigurement and mental anguish.
“As to the wheelchair incident, the plaintiff, Pat Hoover, testified that she was called to the nursing home following the wheelchair incident and her mother was crying, was afraid, and couldn’t say what was wrong. In September, following die wheel chair fall, die nursing home called Pat Hoover and asked her to approve an evaluation of Ms. Moore by a psychiatrist because she was becoming combative. The nursing home notes made by the social worker state that Ms. [Moore] no longer wanted to participate in activities and was depressed. Dr. Fulbright [Ms. Moore’s personal physician] testified concerning her condition and the full nursing home records were available for die jury to review. They indicate changes in her behavior and condition. This evidence is sufficient to support the award by die jury of $500 for pain and suffering and $5,000 for mental anguish.
“Following the back injury Ms. Moore became a total assist patient. Her physical condition deteriorated. She had to be assisted in every activity. She was given medication for pain. Evidence concerning her condition came from the testimony of Dr. Fulbright, Dr. Reeves, Pat Hoover, and other nursing home personnel, and from die nursing notes contained in die nursing home records. Dr. Reeves and Dr. Dennis testified to the seriousness of die back injury and to the amount of pain that a ‘burst’ fracture, where a piece of bone is injected into the spinal canal, would cause for the patient. The doctors testified that Ms. Moore would not suffer less pain because of her age and condition. She could no longer participate in any of the nursing home activities. There is sufficient evidence to support an award of damages by the jury for disability and mental anguish.
“Defendant argues that there is no evidence diat Ms. Moore had pain, suffering, disability, disfigurement, or mental anguish as a result of the broken femur. The physicians called by the plaintiff testified that a broken femur is a painful injury. It is one of die heaviest bones in the body. There are nurse’s notes following the injury which indicate that [Ms. Moore] was in pain. The reason she was taken to die hospital in the first place was because she was in pain and distress. The defendant’s argument is that since Ms. Moore was totally disabled before the leg injury she could not become more disabled after the injury. Clearly, whatever use she had of her leg before the injury was restricted even further by die injury. There is evidence from which the juiy could find that Ms. Moore suffered pain, increased disability and increased mental anguish as a result of the leg injury.
“Defendant argues that any pain or mental anguish suffered by Ms. Moore as a result of the broken hip is duplicative of pain she was already suffering from her previous injuries. Ms. Moore had surgery as a result of the broken hip. Her movement was further restricted. She had a surgical scar. She developed a decubitus ulcer, which the various experts testified is painful. . . . There is evidence to support the jury’s finding that plaintiff suffered damage for pain and suffering, disability, disfigurement and mental anguish as a result of the hip injury”
In Kerns v. G.A.C., Inc., 255 Kan. 264, 278, 875 P.2d 949 (1994), our Supreme Court articulated this court’s standard of review of an award for pain and suffering as follows:
“In reviewing an award for pain and suffering, a noneconomic element of damages, this court must review the record to determine if there is evidence to support the jury’s determination of damages. This court’s standard of review of a jury’s award of noneconomic damages is well established. Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this veiy practical reason, the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of the jurors, who may be expected to act reasonably, intelligently, and in harmony with the evidence. Such awards are overturned only if the collective conscience of the appellate court is shocked.” (Emphasis added.)
Moreover, in explaining that it is the jury’s province to determine the amount of damages sustained, our Supreme Court stated:
“In this jurisdiction the kind of proof required to establish the essential elements of damage involved in a tort action may be different but when the evidence with respect thereto is all in and it affords data, facts, and circumstances reasonably certain from which liability, and actual loss can be determined, it is the jury’s province to determine tire amount of damages sustained on the basis of such evidence. This, we may add, is so even though no witness has testified in the case expressing an opinion as to the amount of such damages.” Albin v. Munsell, 189 Kan. 304, 311, 369 P.2d 323 (1962).
Here, the issue of damages was contested throughout the trial. On appeal, Sterling Heights focuses on Moore’s preexisting conditions and its own evidence that she suffered minimal pain and little or no disfigurement. However, Hoover’s witnesses presented ample evidence of Moore’s pain and suffering, disfigurement, and mental anguish. The credibility of the witnesses was for the jury to decide, as was the appropriate amount of damages to compensate the plaintiff. The trial court did not abuse its discretion in denying the motion for new trial based upon the size of the noneconomic damages awarded.
Jury instructions/verdict form
Next, Sterling Heights argues that the trial court erred in instructing the jury. Specifically, Sterling Heights repeats its earlier argument that there was no evidence of disability, disfigurement, or mental anguish, as there was no evidence to support these damages. Sterling Heights also complains that the composition of the verdict form caused the jury to award duplicative damages by “breaking pain and suffering and disability, disfigurement and mental anguish down into two categories.” Finally, Sterling Heights argues that the trial court erred in failing to give its proposed instructions 10 through 13.
The following rules govern this court’s review of jury instructions:
“ ‘It is the duty of the trial court to properly instruct the juiy upon 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 jury could not reasonably be misled by them, the instructions will be approved on appeal.’ [Citation omitted.]” Noel v. Pizza Management, Inc., 258 Kan. 3, 12, 899 P.2d 1013 (1995).
“A party is entitled to an instruction explaining its theory of the case where there is evidence to support it. However, refusing to give an instruction is not error when its substance is adequately covered in other instructions. A court should not by its instructions unduly emphasize one aspect of a case. [Citation omitted.]” Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991).
See Laterra v. Treaster, 17 Kan. App. 2d 714, 728, 844 P.2d 724 (1992).
During the instructions conference, Sterling Heights reiterated its arguments that there was no evidence of disfigurement, disability, and mental anguish. Although the evidence was conflicting, there was some evidence of disfigurement, disability, and mental anguish. Thus, the trial court properly instructed the jury on those issues.
In addition, Sterling Heights argues that the trial court erred in providing separate lines on the form for (1) pain and suffering and (2) disability, disfigurement, and mental anguish. However, Sterling Heights objected to the inclusion of disability, disfigurement, and mental anguish on the verdict form because it believed there was no evidence to support those damages. Moreover, K.S.A. 60-249a(b)(1) requires that the verdict form be itemized for noneconomic damages in the following manner: “(A) Pain and suffering, (B) disability, (C) disfigurement, and any accompanying mental anguish.” This subsection clearly states that the verdict form should itemize these damages separately. See also Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 380-81, 819 P.2d 587 (1991) (Our Supreme Court found no fault with a special verdict form itemizing pain and suffering damages separate from disability damages.) As a result, Sterling Heights’ argument fails.
Finally, Sterling Heights argues that the trial court erred in denying its request to include its proposed instructions setting out the general statements from Annot., 83 A.L.R. 3d 875, and the cases cited therein. Sterling Heights’ proposed instructions read as follows:
“INSTRUCTION NO. 10
“A nursing home is not a insurer for the safety of its residents. There is no requirement that a nursing home guard against something which a reasonable person would not anticipate as likely. The duty of the home does not ordinarily include having someone follow the resident around at all times because of the impracticality of such a requirement.
“A nursing home is not a hospital and what may be negligence in a hospital, because of its greater control over physicians and [its] more extensive facilities, would not be negligence in a nursing home. (83 ALR 3d 875).”
“INSTRUCTION NO. 11
“A nursing home is not required to have attendants stay with ambulatory residents at all times and the standard of care imposed upon a nursing home is that of reasonable care considering resident’s known mental and physical condition. (Kildron v. Shady Oaks Nursing Home, 549 So. 2d 395).”
“INSTRUCTION NO. 12
“The mere happening of an accident or fall at a nursing home does not give rise to an inference of negligence. Negligence cannot be implied simply because there was a fall in as much as a [resident’s] fall can be occasioned with or without negligence on die part of the nursing home.
“The mere fact that a resident fell in a nursing home does not create an inference of negligence since it is equally probable diat elderly people in nursing homes frequently fall. (Ivy Manor Nursing Home, Inc. v. Brown, Colo. App., 488 P.2d 246) (Tait v. Western World Ins. Co., LA. 220 S. 2d 226).”
“INSTRUCTION NO. 12(a)
“You are furdier instructed diat die mere fact diat a nursing home resident falls does not create an inference of negligence since it is equally probable that residents sometimes fall in the same manner diat old people frequently fall. It may be inferred diat a resident’s fall at a nursing home was occasioned without negligence as with negligence. (Tait v. Western World Ins. Co., 220 So. 2d 226) (Ivy Manor Nursing Home, Inc. v. Brown, Colo. App., 488 2d 246).”
“INSTRUCTION NO. 12(b)
“In die absence of a showing tiiat nursing home resident’s injury was the direct and proximate result of nursing home operator’s failure to assist resident, with possible inference that resident could just as well have fallen out of bed, tripped while walking about her room, or any of a number of other possibilities, nursing home operators are not liable for die resident’s injuries. (MacAlpine v. Martin, Fla., 205 So. 2d 347).”
“INSTRUCTION NO. 13
“An unknown impact or twisting causing [patient’s] injury during her residence in nursing facility, does not necessarily establish a case of negligence against die nursing home. In order for diere to be fault on the part of die nursing facility, die impact and twisting must be based on probabilities and not possibilities. If diere are two equally probable causes of harm, there must be evidence which will permit you to eliminate one of diem and diere must be enough evidence to permit a finding as to die greater probability.
“You [cannot] and should not engage in conjecture and speculation as to die source of any injury suffered by Bessie Moore. Instead, die cause of the impact, twisting or injury must be based on probabilities and not possibilities. In cannot be based upon an injuiy resulting from die resident’s normal activities. (Bunn v. Urban Shelters and Health Care Systems, Inc., 762 Atlantic 2d 1056).”
During the instructions conference, Sterling Heights argued that the above instructions should be given to the jury. When Sterling Heights failed to provide Kansas authority for its proposed instructions, the trial court stated that it would not include the instructions but would follow PIK on the issue of proximate cause. The trial court gave the following instructions:
“INSTRUCTION 7
“It is die duty of a nursing home to a resident to exercise such reasonable care as her condition may require. The degree of care depends upon the known physical and mental ailments of the resident.
“In matters of medical or scientific nature, the standard of reasonable care of a nursing home is that degree of care, skill, and diligence used by nursing homes generally in the community, or in similar communities, under like circumstances.”
“INSTRUCTION 13
“You shall determine the amount of damage sustained by . . . Bessie Moore. You should allow the amount of money which will reasonably compensate plaintiff for Bessie Moore’s injuries and losses resulting from die occurrences in question including any of the following shown in the evidence: pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by Bessie Moore to the date of her death.
“In determining the amount of damages you should consider Bessie Moore’s age, condition of health before and after, and the nature, extent and duration of die injuries. For such items as pain, suffering, disability, and mental anguish there is no unit value and no mathematical formula the court can give you. You should allow such sum as will fairly and adequately compensate plaintiff for the injuries to Bessie Moore. The amount to be allowed rests within your sound discretion.”
These instructions fairly state the law in Kansas on the issues of causation and damages. Although Sterling Heights argues that the above instructions were “too general in nature,” they are substantially correct and could not reasonably have misled the jury. As a result, Sterling Heights’ argument fails.
Affirmed in part and reversed in part. | [
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Knudson, J.:
Tamara M., the natural mother of T.M.C., A.M.C., and D.E.C., appeals from the order of the trial court denying her request to file an untimely appeal from the order terminating her parental rights. Tamara contends the trial court erred in concluding the principles stated in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), which allow a criminal defendant to file a notice of appeal out of time are not applicable in a termination of parental rights proceeding. The Riley County Attorney agrees that the trial court erred.
We reverse and remand the trial court’s order denying Tamara’s application to file her appeal out of time.
For purposes of this appeal, the controlling facts are not in dispute. Tamara was not informed by her court-appointed attorney that she had 30 days after the entiy of judgment to file her appeal. There is likewise no indication that the trial court informed Tamara of the 30-day period. In denying Tamara’s application to file her appeal out of time, the trial court concluded it lacked jurisdiction. The trial court also noted: Tamara and her trial attorney discussed the merits of an appeal immediately after her parental rights were severed; her attorney told her an appeal would be groundless and that he did not want to file an appeal for her; her attorney took no affirmative action to file a timely appeal. Nevertheless, there is no evidence that Tamara was even aware that a notice of appeal must be filed within 30 days after the final order was entered. Thus, we are left with this issue — does fundamental fairness require that Tamara be allowed to pursue her appeal?
K.S.A. 1998 Supp. 38-1591 provides that the procedures on appeal in a termination proceeding shall be governed by article 21 of chapter 60 of the Kansas Statutes Annotated. K.S.A. 1998 Supp. 60-2103(a) reads:
“When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment, as provided by K.S.A. 60-258, and amendments thereto, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.”
The right to an appeal is a statutory right, not a right vested in the United States or Kansas Constitutions. Ordinarily, an appellate court has jurisdiction to entertain an appeal only if the appeal is taken within the time limitations provided by the statute. State ex rel. Secretary of SRS v. Keck, 266 Kan. 305, 308, 969 P.2d 841 (1998). However, in addition to the statutory concept of excusable neglect, our courts have crafted a unique circumstances exception. See Schroeder v. Urban, 242 Kan. 710, 713, 750 P.2d 405 (1988).
Because Tamara had notice of the judgment, the exception of excusable neglect is not applicable. Further, the unique circumstances exception only applies when an untimely filing was the result of an error of the court. See Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999); Schroeder v. Urban, 242 Kan. at 713.
Likewise, it is the general rule that appellate courts do not have jurisdiction to entertain an appeal in a criminal case unless a notice of appeal is filed within the statutory period. See K.S.A. 22-3608. However, in State v. Ortiz, in the interest of fundamental fairness, the Supreme Court recognized an exception to this general rule where a defendant either was not informed of his or her right to appeal, or was not furnished an attorney to perfect an appeal, or was furnished an attorney for that purpose who failed to perfect and complete an appeal. 230 Kan. at 736.
There are no Kansas cases that have extended the fundaméntal fairness exception as explained in Ortiz to civil proceedings. Because a parent has a constitutional right to counsel in order to afford fairness and impartiality in termination proceedings under K.S.A. 1998 Supp. 38-1581 et seq., we conclude it is proper to apply the fundamental fairness exception to an untimely appeal from a termination order.
Termination of parental rights proceedings affect important substantive due process rights. It is well settled that basic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States and cannot be abrogated except for compelling reasons. See In re Adoption of K.J.B., 265 Kan. 90, 101, 959 P.2d 853 (1998); In re J.J.B., 16 Kan. App. 2d 69, 73, 818 P.2d 1179 (1991).
Under K.S.A. 1998 Supp. 38-1505(b), the court must appoint an attorney at any stage of the proceedings under the Kansas Code for the Care of Children for a parent who desires counsel but is financially unable to employ one. Prior to the enactment of 38-1505, this court addressed the issue of whether an indigent parent had the right to be provided with court-appointed counsel on appeal from an order terminating parental rights. In In re Brehm, 3 Kan. App. 2d 325, 326, 594 P.2d 269 (1979), this court stated:
“[T]here is no doubt that the relationship of natural parent and child is a fundamental right of which neither may be deprived without due process of law as guaranteed by the Constitution of the United States and the Kansas Bill of Rights. Nor can there be any doubt that, in such case, the right to counsel, either retained or appointed, is essential to due process. In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967).”
This court also noted that similar to those cases recognizing the inherent authority of courts to appoint counsel to provide fair and impartial trials for criminal defendants, “there is inherent authority in courts to provide for counsel in order to provide a fair and impartial hearing of matters involved in severance of parental rights.” 3 Kan. App. 2d at 327. “[T]he responsibilities and duties of counsel assigned to the natural parent by the trial court continue on appeal to this court.” 3 Kan. App. 2d at 328.
Applying the fundamental fairness exception to an appeal filed from a termination of parental rights order is not inconsistent with this court’s holding in Robinson v. State, 13 Kan. App. 2d 244, 249, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). In Robinson, this court held the defendant’s rights under the Due Process Clause of the Fourteenth Amendment were not violated when his appeal from the dismissal of his K.S.A. 60-1507 petition was dismissed due to the failure of his counsel to timely perfect the appeal.
In reaching its conclusion, the Robinson panel discussed Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985). The Court in Evitts held the dismissal of a criminal defendant’s direct appeal violated the defendant’s due process rights when the dismissal was the result of ineffective assistance of counsel. The Robinson panel noted the constitutional right to effective assistance of counsel compelled the Court in Evitts to hold that an appeal may not be cut off due to ineffective assistance of counsel. Because the constitutional right to counsel does not exist in a post-convic tion 60-1507 proceeding, the defendant in Robinson could not save his untimely appeal. 13 Kan. App. 2d at 249-50.
As indicated, a parent’s right to counsel in an appeal from a termination of parental rights proceeding is founded on constitutional grounds. See In re Cooper, 230 Kan. 57, 64, 631 P.2d 632 (1981); In re Brehm, 3 Kan. App. 2d at 328. Tamara’s appeal, therefore, cannot be cut off due to the ineffective assistance of counsel.
Reversed and remanded with directions that appellant is to docket her appeal, pursuant to Supreme Court Rule 2.04 (1998 Kan. Ct. R. Annot. 10), within 21 days after receipt of the mandate by the district court. | [
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Rulon, J.:
Plaintiffs Conrad Reed, William Engelhardt, and Lloyd E. Theimer, residents of Unified School District No. 315 (U.S.D. 315), appeal the district court’s order granting the defendants summary judgment. We affirm in part and reverse in part.
The U.S.D. 315 Board of Education passed tax levy resolution No. 97-1215 on December 15,1997. The resolution was published in The Colby Free Press on Thursday, December 18, 1997, and Monday, December 22, 1997. Plaintiffs circulated petitions in opposition to tax levy resolution No. 97-1215 and filed the signed petitions with the Thomas County Clerk and Election Officer, defendant Rosalie Seeman. Defendant Seeman notified plaintiffs the petitions contained enough signatures to submit the resolution to a vote. Subsequently, defendant Seeman notified plaintiffs that the petitions were invalid because such were not submitted to the Thomas County Attorney for review prior to circulation pursuant to K.S.A. 25-3601.
Plaintiffs filed suit, claiming, inter alia, the petitions in opposition to the tax levy resolution were valid under K.S.A. 72-8801 and the publication of the tax levy resolution by the school board was void. The district court granted defendants summary judgment on both issues and plaintiffs appeal.
Plaintiffs argue the district court erred in finding that the publication of tax levy resolution No. 97-1215 by the school board was sufficient and in compliance with Kansas law. K.S.A. 72-8801 provides in part: “The [capital outlay levy] resolution shall be published once a week for two consecutive weeks in a newspaper having general circulation in the school district.” Further, K.S.A. 72-8813 states: “To the extent that the provisions of any other law conflict with this act [the Capital Outlay Levy Act], the provisions of this act shall control.” However, plaintiffs contend K.S.A. 64-102 must be read in conjunction with K.S.A. 72-8801 in order to determine the meaning of “once a week for two consecutive weeks.”
K.S.A. 64-102 provides:
“All legal publications and notices of whatever kind or character that may by law be required to be published a certain number of weeks or days shall be . . . legally published when they have been published once each week in a newspaper which is published at least once each week, such publication to be made on any day of the week upon which the paper is published: Provided, That successive publications of the same notice shall be made on the same day of the week except that when there is no issue of the newspaper published on such day that it may be made on the preceding or following day . . . .” (Emphasis added.)
K.S.A. 64-102 does not conflict with the provision for publication found in K.S.A. 72-8801, but merely defines what the legislature meant by “published once a week for two consecutive weeks,” and the statutes must be read together and harmonized. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 311, 955 P.2d 1136 (1998). Defendants contend Masheter v. Vining, 198 Kan. 691, 426 P.2d 149 (1967), stands for the proposition that K.S.A. 64-102 is not applicable because a procedure for giving notice is provided in the specific statute, K.S.A. 72-8801. However, the Masheter court did not address the specific issue at hand and did not specify in its holding whether the notice given was sufficient because it was published on two consecutive Fridays or because it was published at least 7 days apart. Therefore, Masheter provides little guidance.
Even if K.S.A. 64-102 is not applicable here based on Masheter, defendants still failed to comply with K.S.A. 72-8801. Publication notices must be published once in each period of 7 days. A week consists of 7 consecutive days and, therefore, pubfishing a notice twice within a period of 4 days does not constitute “once a week for two consecutive weeks.” See Wilson v. Northwestern Mut. Life Ins. Co., 65 F. 38 (8th C.C.A. 1894). The purpose of this statutory requirement is to give the full interval between the first notice and the adoption of the resolution. See Schaeffer v. Anne Arundel County, 338 Md. 75, 86, 656 A.2d 751 (1995).
We conclude the publication of the tax levy resolution by the school board failed to meet the requirements of K.S.A. 72-8801 and,; therefore, is null and void. See Lambert v. Unified School District, 204 Kan. 381, 383, 461 P.2d 744 (1969).
Next, plaintiffs assert the district court erred in finding the petitions in opposition to the tax resolution were invalid because plaintiffs failed to obtain the opinion of the Thomas County Attorney regarding the legality of the question presented in the petitions, under K.S.A. 25-3601.
K.S.A. 25-3601 provides:
“When ... a petition is required or authorized as a part of the procedure applicable to . . . any . . . school district . . ., the provisions of this act shall apply, except as is otherwise specifically provided in the statute providing for such petition. . . . Before any petition ... is circulated, a copy thereof containing die question to be submitted shall be filed in the office of the county attorney . . . .” (Emphasis added.)
Plaintiffs argue that K.S.A. 72-8801 governs the issue and K.S.A. 25-3601 does not apply. However, 72-8801 does not specifically provide for any type of review of the petition by the county attorney and, therefore, that provision contained in K.S.A. 25-3601 is applicable. Further, K.S.A. 72-8801 and K.S.A. 25-3601 do not conflict and should be read together. See Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. at 311.
We conclude K.S.A. 25-3601 is applicable and the petitions in opposition to the tax levy resolution were invalid for failure to submit such to the county attorney prior to circulation.
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Six, J.:
This medical malpractice case focuses on the K.S.A. 60-3412 “actual clinical practice” requirement for standard of care expert testimony.
Rhonda Endorf died after receiving emergency room treatment for a snake bite. Plaintiff, Bruce L. Endorf, Rhonda’s husband, individually and as special administrator seeks damages for personal injuries and wrongful death. Plaintiffs petition initially asserted claims against: (1) defendant David Bohlender, M.D., (2) Lynda B. DeArmond, M.D., (3) the Arkansas City Memorial Hospital for the negligence of its employee, Mark Knott, R.N., and (4) Wyeth-Ayerst Laboratories, Inc. (Wyeth). Before trial all defendants except Dr. Bohlender settled with plaintiff.
Dr. Bohlender, while on duty in the Arkansas City hospital emergency room, treated Rhonda Endorf. He appeals from the jury verdict assessing 31 per cent of the fault to him. (The remaining fault percentages were allocated against Dr. DeArmond, 46 per cent; Nurse Knott, 23 per cent; Wyeth, 0 per cent). Dr. Bohlender contends the district court erroneously admitted expert testimony on the standard of care and denied his directed verdict and post-trial motions. (Dr. Bohlender moved for a directed verdict, judgment notwithstanding the verdict, and a new trial.)
We agree the questioned expert testimony should not have been admitted. Dr. Bohlender is entitled to a new trial. We affirm the district court’s rulings on the verdict motions.
K.S.A. 60-3412, The Statute In Question
K.S.A. 60-3412, which sets forth the standards for qualifying standard of care expert witnesses in medical malpractice actions, provides:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which die defendant is licensed.” (Emphasis added.)
In our interpretation of K.S.A. 60-3412, we address the narrow, but important, question of who may give expert testimony on the standard of care in a medical malpractice action. Our interpretation has no bearing on the qualifications of medical experts giving testimony on other issues in a malpractice case.
FACTS
The critical facts arise from the treatment of Ms. Endorf. The bite was initially examined by Dr. Bohlender, who had never treated a snake bite. He called in the attending physician, Dr. DeArmond. After Dr. DeArmond arrived and evaluated the bite, a decision was made to treat Ms. Endorf with antivenin manufactured by Wyeth. Wyeth includes a package insert with the antivenin that instructs on its use and possible dangers. The potential for a serious allergic reaction to antivenin is substantial. An allergic reaction to the Wyeth antivenin caused Ms. Endorf to go into an anaphylactic shock. Ms. Endorf died because of the allergic reac tion. All agree that after Dr. DeArmond arrived, she assumed the care of Ms. Endorf.
DISCUSSION
At trial, plaintiff presented four expert witness opinions on the applicable standard of care. Two experts, Dr. J. Brad Lichtenhan and Dr. Robert A. Barish, were retained by plaintiff. The other two experts, Dr. Donald B. Kunkle and Dr. Leslie V. Boyer were retained by Wyeth. Dr. Lichtenhan was the only expert witness to testify at trial. Dr. Lichtenhan practices medicine in Austin, Texas. Dr. Bohlender does not object to Dr. Lichtenhan’s qualifications under K.S.A. 60-3412. However, he takes issue with the district court’s decision to admit the deposition testimony of Drs. Boyer, Kunkle, and Barish. All three experts were primarily critical of Dr. DeArmond but also found fault with Dr. Bohlender as a member of the treating team.
Timeliness of Bohlender’s Objections
An initial question we must address centers on the timing of Dr. Bohlender’s objections to the expert testimony. The district court allowed the testimony because it found Dr. Bohlender’s objection too late and the 50 per cent rule under K.S.A. 60-3412 arbitrary. The district judge said:
“I am going to admit the deposition testimony, and do it for these reasons; each of those witnesses is listed in the pretrial order as plaintiff s witnesses; also listed in [the] pretrial order as admissible exhibits, the curriculum vitae of any witness.
“Now, I don’t have time now, and I don’t know whether it would do any good if I had an unlimited amount of time, to read the depositions and make any determination on this issue. I doubt that that would be of any assistance. . . . The statute is really to be cut on that exact line, 50 percent seeing patients as a clinician or you don’t testily. That seems arbitrary to me. I can’t believe that that’s a reasonable construction that may complement the legislative intent. I’m not so sure that absolutely strict construction really meets that problem, if that was the objective of the legislature, and I assume it was.
“Here we have a jury waiting, we’re a substantial part of the way through the presentation of this evidence. Defendant and everybody else knew these people would be offered, or could be offered by the plaintiff, and that charges the defendant and everybody else with every deficiency that there may be in their qualifications to testify.”
The district court was correct in observing that all disputed expert witness depositions were fisted in the November 1, 1996, pretrial order. However, the district court did not note, that the same pretrial order contained a paragraph fisting contested issues of law. One of the many contested issues fisted was “[wjhether the plaintiff s or co-defendants’ expert witnesses are qualified to testify pursuant to K.S.A. 60-3412.” Rulings on the issues of law were reserved by the pretrial order.
A pretrial motion hearing was held on Thursday, August 7,1997 (the trial commenced the following Tuesday, August 12,1997). At the hearing the district court and counsel took up a previously filed Wyeth motion relating to the designation of deposition testimony. Dr. Bohlender’s counsel suggested,
“[t]hey [the plaintiff] share the knowledge by now who they’re going to have as far as depositions so that they give me that by Monday morning so I can react to that.”
Plaintiff s counsel agreed.
Dr. Bohlender’s counsel said, “I was told [Dr.] Lichtenhan would be five and [Dr.] Barish would be by deposition, but he wasn’t going to be brought in. Now I’m told they’re only going to use one.” Plaintiff s counsel responded, “Plaintiff isn’t bringing Dr. Barish because he would give duplicative testimony.” The district court instructed the parties to exchange before noon on August 11, 1997, the designation of any deposition testimony to be read to the jury. Dr. Bohlender did not intend to designate any deposition testimony and therefore did not provide designations to plaintiff.
Although counsel said that plaintiff did not intend to make any designations, plaintiff designated portions of the discovery depositions of Drs. Kunkle, Barish, and Boyer. (The designations were made at 3:30 p.m. on August 11, 1997, after the court’s noon deadline.)
Jury selection for the trial started on Tuesday, August 12,1997. Dr. Bohlender lodged his objections to the deposition testimony on August 13 at 8:34 a.m. by fifing a response. The jury began hearing evidence that same morning. Dr. Bohlender was not untimely in his K.S.A. 60-3412 objections to the expert testimony.
Actual Clinical Practice
A key phase in K.S.A. 60-3412 is “actual clinical practice.” To qualify as a standard of care expert in a medical malpractice action, 60-3412 requires that an expert spend 50 per cent of his or her professional time in the two years preceding the incident devoted to “actual clinical practice.”
Dr. Bohlender asserts the district court’s admission of the three expert witness depositions was in violation of K.S.A. 60-3412. Plaintiff frames the question as whether the district court, within its discretion, found there was an adequate foundation for the admission of the expert testimony.
Dr. Bohlender’s argument is that the 50 per cent “actual clinical practice” requirement means expert witnesses must spend at least half of their professional time engaged in patient care. Plaintiff contends that the legislature did not intend to create such an arbitraiy dividing line. He reasons that the legislature sought to preclude “professional witnesses” from testifying, and as long as his experts are not “professional witnesses,” they may testify.
Because the district court’s decision to admit the expert testimony is based upon an interpretation of K.S.A. 60-3412, we have de novo review. See Glassman v. Costello, 267 Kan. 509, 516-17, 986 P.2d 1050 (1999) (discussing standard of review applicable to a K.S.A. 60-3412 dispute).
The legislature adopted K.S.A. 60-3412 in 1986 when it undertook to reform medical malpractice litigation in Kansas. See L. 1986, ch. 229, §§ 1-52. The Supreme Court has discussed K.S.A. 60-3412 in three cases. The first, Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988), held that K.S.A. 1987 Supp. 60-3412 was intended to prevent the use of “professional witnesses” in medical malpractice actions. 244 Kan. at 43. Wisker rejected the argument that a K.S.A. 60-3412 standard of care expert must practice in the same specialty as the defending physician. 244 Kan. at 44. The second is Tompkins v. Bise, 259 Kan. 39, 910 P.2d 185 (1996). Tompkins concerned the application of the term “same profession” in K.S.A. 60-3412. Tompkins held that a dentist who was qualified to diagnose and treat the injury at issue could testify as to the standard of care of the physician defendant. 259 Kan. at 49. The third is Glassman, 267 Kan. 509. Citing Wisker, Glassman reversed a district court decision refusing to allow practicing pathologists to testify on the standard of care for an obstetrician. 267 Kan. at 519. The Supreme Court has consistently rejected the notion that physicians may testify only in the area of their professional specialty. See Glassman, 267 Kan. at 519; Wisker, 244 Kan. at 44. Neither Wisker, Tompkins, nor Glassman answer the question presented here.
Plaintiff would have us define “actual clinical practice” here as any medically related activity a physician engages in, except expert review and testimony for civil litigation. Under plaintiffs interpretation, the K.S.A. 60-3412 phrase “actual clinical practice” includes direct patient care, consultation, research, education, mentoring, and administrative activities within the medical profession. Under plaintiff s rationale, a full-time researcher who sees no patients at all could qualify as a standard of care expert witness in a Kansas medical malpractice case. Plaintiff contends that as long as a researcher does not spend more than 50 per cent of his or her time testifying in civil trials, the expert qualifies under K.S.A. 60-3412. We disagree.
A fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). When a statute is plain and unambiguous, appellate courts will neither speculate as to legislative intent nor read a statute so as to add something not readily found in it. State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. In re Marriage of Killman 264 Kan. 33, 42, 955 P.2d 1228 (1998). Legislative intent may best be determined from the plain meaning of the words used in the statute in light of all the experience available to the law-making body. Hulme v. Woleslagel, 208 Kan. 385, 391, 493 P.2d 541 (1972). Our construction should neither add to that which is not readily found in the statute, nor read out what, as a matter of ordinary language, is in it. See Boatright v. Kansas Racing Com’n, 251 Kan. 240, Syl. ¶ 7, 834 P.2d 368 (1992).
The legislature, when enacting K.S.A. 60-3412, used the common medical term “clinical practice” in the medical context of medical malpractice litigation. Thus, in interpreting the term “actual clinical practice” we should consider the medical definition of that term.
Stedman’s Medical Dictionary 353 (26th ed. 1995) defines “clinical” as:
“1. Relating to the bedside of a patient or to the course of his disease. 2. Denoting the symptoms and course of a disease, as distinguished from the laboratory findings of anatomical changes. 3. Relating to a clinic.”
The same source defines “practice” as:
“The exercise of the profession of medicine or one of the allied health professions.” Stedman’s Medical Dictionaiy 1417 (26th ed. 1995).
Other sources concur with those definitions. See e.g., Taber’s Cyclopedic Medical Dictionary, 368, 1466 (16th ed. 1989). We have no reason to believe the legislature did not intend that those definitions should apply to K.S.A. 60-3412. Statutory words are presumed to have been and should be treated as consciously chosen, with an understanding of their ordinary and common meaning. International Ass’n of Firefighters v. City of Kansas City, 264 Kan. 17, 31, 954 P.2d 1079 (1998).
The Ohio Court of Appeals, in a case concerning the meaning of the phrase “clinical psychologist,” relied upon the general meaning ascribed to “clinical” by common usage. In re Barnes, 31 Ohio App. 3d 201, 510 N.E. 2d 392 (1986). Barnes looked to Webster’s Third New International Dictionary 423 (1971), for the definition of “clinical”:
“ T: of, relating to, or conducted in or as if in a clinic (as a medical clinic): as a: involving or depending on direct observation of the living patient ( — diagnosis) ( — examination) b: observable by clinical inspection ( — tuberculosis) c: based on clinical observation ( — picture) ( — treatment) d: applying objective or standardized methods (as interviews and personality or intelligence tests) to the description, evaluation, and modification of human behavior ( — psychology)000.’” 31 Ohio App. 3d at 205.
The Kansas Legislature has used “clinical” many times in health care legislation. A legislative distinction between “clinical” on one hand and “administrative,” “educational,” “research,” and “theoretical” on the other is gleaned from a review of selected statutes. For example:
(A) In defining active anesthesia practice, “ ‘active anesthesia practice’ means clinical practice and anesthesia related administration, educational and research activities.” (Emphasis added.) K.S.A. 1998 Supp. 65-ll51(f).
(B) In establishing the subject matter for a license to practice dentistry, “the examination shall be both theoretical and clinical, and shall thoroughly test the qualifications of each applicant to practice dentistry.” (Emphasis added.) K.S.A. 65-1428(a).
(C) In setting the qualifications to practice optometry, “[a]ll persons before taking the examination required by the board to be certified as a diagnostic and therapeutic licensee shall submit evidence satisfactory to the board of having successfully completed a course approved by the board in didactic education and clinical training in the examination, diagnosis and treatment of conditions of the human eye and its adnexae, totaling at least 100 hours. (Emphasis added.) K.S.A. 1998 Supp. 65-1505(c). (“Didactic” means “instruction by lectures and by use of texts as opposed to clinical or bedside teaching of medicine.” Taber’s Cyclopedic Medical Dictionary 500 [16th ed. 1989]).
(D) Each applicant for a license as a professional counselor, shall furnish evidence that the applicant “has received a minimum of 200 hours of supervision including (i) 100 hours of administrative supervision regarding general professional function, and (ii) 100 hours of clinical supervision regarding delivery of direct client contact services with no more than 50 hours conducted as group supervision and no less than 50 hours conducted as individual supervision and no less than 4 hours of clinical supervision contact monthly.” (Emphasis added.) K.S.A. 1998 Supp. 65-5804(b)(3)(B).
(E) In authorizing the Board of Regents to conduct clinical work in its medical course at the University of Kansas School of Medicine, “[t]he board of regents is hereby authorized to conduct, without expense to the state, such clinical work in connection with its medical course as may be feasible at the various state hospitals affording clinical advantages, and at such other places in the state of Kansas as may in the judgment of the board of regents seem advisable.” (Emphasis added.) K.S.A. 76-315.
These legislative uses of the term “clinical” support Dr. Bohlender s contention.
Many state legislatures have acted to restrict the qualifications of experts in medical malpractice actions. See 4 Louisell & Williams, Medical Malpractice ¶ 29.02 (1999). “A statute may limit expert witnesses to their field of specialty, or require specific familiarity with practices in the locality in question or a similar community. Other statutes require that a witness spend a certain amount of time in clinical practice.” 4 Louisell & Williams at ¶ 29.02. Our legislature chose the last of these alternatives when it enacted K.S.A. 60-3412. See Tompkins for a legislative history discussion. 259 Kan. at 48-49.
The legislative aim of K.S.A. 60-3412 was to exclude professional witnesses. Wisker, 244 Kan. at 43. Wisker said: “K.S.A. 1987 Supp. 60-3412 is intended to prevent the use of professional witnesses.’ That is, practitioners of healing arts who spend less than SO percent of their professional time in actual clinical practice in their profession are considered to he professional witnesses’ rather than practitioners of their profession.” (Emphasis added.) 244 Kan. at 43-44. Although the legislature rejected a locality rule, it did provide express requirements of what an expert witness’ qualifications must be in a medical malpractice action. See Tompkins, 259 Kan. at 48-49.
If we adopt plaintiffs position, we ignore the express language of K.S.A. 60-3412. Plaintiffs interpretation characterizes “actual clinical practice” as surplusage. The cited medical definitions suggest that the medical community does not define “clinical practice” as plaintiff would have us define the phrase. Plaintiff s definition presumes that the legislature did not understand the common medical meaning of the term “clinical practice” or consider the term an essential component for standard of care testimony. Those presumptions lack support. We note plaintiff qualified his live expert, Dr. Lichtenhan, by eliciting testimony that the doctor spent 100 per cent of his professional time in “hands-on patient care.”
When construing a statute, we are not justified in disregarding an unambiguous meaning. Boatright, 251 Kan. 240, Syl. ¶ 7. If the legislature intended plaintiffs construction of K.S.A. 60-3412, it could have said experts must not spend more than 50 per cent of their time testifying in civil trials.
“Actual clinical practice” means patient care. However, patient care should not be limited to a physical presence or bedside requirement. For example, here, Dr. Bohlender was criticized by Dr. Barish for failing to call Poison Control. Had such a call been placed, the physician in Poison Control advising the emergency room doctor on patient care would be engaged in patient care and thus in actual clinical practice. In this technological age of video teleconferencing, and the like, the practitioner of healing arts advising on, or addressing care for, a distant patient is engaged in actual clinical practice.
Turning to the qualifications of the experts at issue here, plaintiff contends that the record contains ample evidence to show that the three doctors spend “almost all their professional time in the actual clinical practice of their profession.” However, plaintiff provides neither a single quote from the depositions nor a cite from the record to support his claim. Plaintiff does concede that the party offering the testimony carries the burden to establish a foundation for its admissibility.
Of the three doctors at issue, only one answered the question of time spent in clinical practice. Dr. Kunkle admitted he spends only 25 per cent of his time in clinical practice. Dr. Kunkle is a Medical Director at Good Samaritan Medical Center in Phoenix, Arizona, and teaches at the University of Arizona. He has testified approximately six or seven times as an expert witness. Dr. Kunkle’s admission that he only spends 25 per cent of his time engaged in clinical practice reveals a conflict between how he, as a doctor, defines that term and how plaintiff would have us define it.
Neither Dr. Boyer nor Dr. Barish was asked during his deposition how much time he spends in actual clinical practice. Dr. Barish is an associate professor at the University of Maryland School of Medicine and Chief of the Division of Emergency Medicine and Director of Emergency Medical Services at the University of Maryland Medical Center. Dr. Barish testified he had been an expert witness about twenty times. Dr. Boyer works as Medical Director at the Arizona Poison and Drug Information Center and teaches pharmacology and toxicology at the University of Arizona. Dr. Boyer said she has testified as an expert witness only three or four other times.
Plaintiff did not meet his burden of showing that the three witnesses presented as experts were qualified under K.S.A. 60-3412 to give testimony on the standard of care.
We now address the impact of this inadmissible evidence at trial. The question is whether Dr. Bohlender suffered prejudice as a result of its admission. See Wisker, 244 Kan. at 44; Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 314, 524 P.2d 1194 (1974).
Only Dr. Barish directly criticized Dr. Bohlender. Dr. Barish opined that Dr. Bohlender’s failure to call Poison Control fell below the standard of care. Dr. Boyer said that Dr. Bohlender shared responsibility for Ms. Endorf s treatment, but to a lesser extent than Dr. DeArmond. The three experts were mostly critical of Dr. DeArmond. As experts for Wyeth, the crux of Dr. Kunkle’s and Dr. Boyer’s opinions was that Wyeth had no responsibility for Ms. Endorf s death. It would appear that the jury may have relied to a degree on this testimony, as it found Wyeth without fault.
The juiy had to apportion fault among Knott, DeArmond, Bohlender, and Wyeth. The inadmissible expert testimony went directly to the issue of fault. We reason it is impossible to know to what extent the jury relied on the inadmissible testimony in assessing fault to Dr. Bohlender. We believe it is equally impossible to conclude that there was no prejudice to Dr. Bohlender.
The Verdict Motions
Dr. Bohlender next argues that the district court erred in denying his motions for relief from the jury’s verdict. We disagree. When reviewing a district court’s denial of a motion for directed verdict or for judgment notwithstanding the verdict, we apply the same standard that the district court applied. We must resolve all facts and inferences 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 and the matter submitted to the jury. Turner v. Halliburton Co., 240 Kan 1, 7, 722 P.2d 1106 (1986).
Dr. Bohlender’s argument centers on Dr. Lichtenhan’s standard of care testimony. He argues that Dr. Lichtenhan’s testimony was without an adequate factual foundation, and opinions without such a foundation may not sustain a jury verdict. (Citing Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 [1978].)
Dr. Lichtenhan opined that Bohlender’s treatment of Ms. Endorf fell below the standard of care in several respects, specifically by: (1) ordering the test dose subcutaneously rather than transdermally; (2) ordering Benadryl after the test dose, but not specifying how long to wait before giving it; (3) failing to dilute the antivenin beyond a 1:1 ratio; (4) giving the antivenin too soon after the test dose; and (5) giving the antivenin at too fast a rate. According to Dr. Bohlender, all but one of Dr. Lichtenhan’s criticisms rested upon the assumption that Dr. Bohlender’s written orders were carried out. Dr. Lichtenhan admitted on cross-examination that if in fact Dr. Bohlender’s written orders were superseded by Dr. DeArmond, and never carried out, he could not make the first four criticisms. If Dr. Bohlender’s orders were not carried out, Dr. Lichtenhan had only one criticism of Dr. Bohlender: Dr. Bohlender should have spoken up to prevent the antivenin administration at such a fast rate.
Dr. Bohlender contends that because he, Dr. DeArmond, and Nurse Knott all testified that his orders were not carried out, Dr. Lichtenhan’s first four criticisms were without a factual basis. As to the remaining criticism, Dr. Bohlender argues it is insufficient to sustain the jury’s verdict. Dr. Lichtenhan admitted that if, as Bruce Endorf testified, the antivenin was injected in 10-15 seconds, there would have been nothing Dr. Bohlender could have done to prevent the outcome.
Dr. Bohlender’s argument fails. We are required to view the evidence in the light most favorable to the plaintiff. See Turner, 240 Kan. at 6-7. Here, there was conflicting evidence whether Dr. Bohlender’s orders were carried out. Although the testimony was that Dr. DeArmond gave verbal orders, those orders were never reduced to writing as required by hospital policy. Dr. DeArmond also countersigned Dr. Bohlender’s orders. Thus, contrary to Dr. Bohlender’s assertion, the testimony was controverted by documentary evidence. The evidence showed that the only written orders on administering the antivenin were those written by Dr. Bohlender and countersigned by Dr. DeArmond. The question of whether Dr. Bohlender’s orders were carried out was a fact in dispute at trial. Our role is not to pass on the credibility of witnesses or resolve factual disputes. See Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, Syl. ¶ 4, 710 P.2d 1258 (1985).
Affirmed in part, reversed in part, and remanded for a new trial. | [
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Davis, J.:
Dimension Graphics, Inc., (Dimension) entered into a contract to produce and print a magazine for Worldwide Communications (Worldwide). The defendants, Ted Liebowitz and Bruce Jacobson, negotiated the contract on behalf of Worldwide. Dimension obtained judgment under the contract against the principal, which remains unsatisfied. Dimension sued the agents and appeals the trial court ruling that its election to secure judgment against an undisclosed principal bars further action against the agents. We reverse and remand for further proceedings.
In December 1995, Paradise Magazine, Inc., (Paradise) submitted a printing agreement to Dimension proposing that Dimension print Paradise Magazine. Through its president, Dimension notified Paradise that Dimension would not do business with Paradise.
Jacobson and Liebowitz, as agents for Paradise, attempted to get the same job done by representing to Dimension that they represented Worldwide. On December 11, 1995, Jacobson faxed to Dimension a credit application using the name “Worldwide Communications.” On December 21, 1995, Liebowitz faxed to Dimension a printing agreement using the name ‘Worldwide Communications.” In accordance with the agreement executed by Liebowitz, Dimension produced and delivered in excess of 107,350 copies of a magazine which turned out to be the September 1996 issue of Paradise Magazine.
Dimension billed Worldwide $78,857.83 for the printing but was not paid. Dimension filed suit against Worldwide in the District Court of Johnson County. Worldwide was successful in removing the case to the United States District Court for the District of Kansas. On or about September 9, 1996, Dimension received notice of removal of its suit and notice that Paradise does business as Worldwide Communications. Dimension learned that Paradise was in fact the principal involved in the above printing contract. Thereafter, Paradise voluntarily submitted to the jurisdiction of the federal district court as a defendant in the case and filed a counterclaim.
On March 13, 1997, Dimension moved to amend its petition to add Liebowitz and Jacobson as individual defendants in the federal case. However, the motion was denied, apparently because Dimension had failed to allege residency and, therefore, could not demonstrate a diversity of citizenship for the parties.
Rather than dismissing its case and filing a new case against both Paradise and its individual agents, Liebowitz and Jacobson, Dimension filed a motion for summary judgment against Paradise. United States District Court Judge Van Bebber entered summary judgment for Dimension against Paradise in the sum of $78,857.83 plus interest and attorney fees. While the judgment ruling is not of record, the trial court in this case based part of its rulings on the following quote from Judge Van Bebber s summary judgment:
“Although Paradise Magazine, Inc., was not an official party to die contract at issue, defendant concedes in its answer diat Paradise Magazine, Inc., is its legal name and is die entity widi whom plaintiff entered into die printing agreement. Defendant further acknowledges that its agents, acting under die trade name Worldwide Communications, ordered printing services and accepted delivery of die products from plaindff. Paradise Magazine, Inc., therefore, is the proper defendant in diis action as an undisclosed principal.”
Dimension then filed suit against Liebowitz and Jacobson in the Johnson County District Court alleging they were parties to and liable under the contract as agents for an undisclosed principal. The suits were consolidated by the trial court. Liebowitz and Jacobson filed motions to dismiss contending that as agents for an undisclosed principal, any judgment taken against the principal discharged them from liability under Restatement (Second) of Agency § 210A (1957). Dimension argued that no matter what it had alleged in its petition, Liebowitz and Jacobson were, in fact, agents for a partially disclosed principal and, thus, were jointly and severally liable so that judgment taken against the principal would not discharge their liability.
Referring to the decision by Judge Van Bebber, the state district court noted that Dimension’s position in this case was clearly contrary to the United States District Court’s decision. The state district court observed that Judge Van Bebber ruled in his memorandum and order that “ ‘Paradise Magazine is the proper defendant in this action as an undisclosed principal.’ ” Thus, the court concluded that by Dimension obtaining a judgment against Paradise, Dimension in effect made an election under § 210A of the Restatement and, therefore, the judgment barred Dimension from proceeding against Liebowitz and Jacobson.
The first question we must determine is whether the trial court erred in finding that Paradise was an undisclosed principal, rather than a partially disclosed principal. The resolution of this question is vital to the outcome of this matter.
The Restatement (Second) of Agency § 4 makes a clear distinction between an undisclosed principal and a partially disclosed principal. If, at the time of a transaction conducted by an agent, the other party has no notice that the agent is acting for a principal, the principal is an undisclosed principal. However, if, at the time of the transaction, the other party has notice that the agent is or may be acting for a principal, but does not have notice of the principal’s identity, the principal is a partially disclosed principal. Restatement (Second) of Agency § 4 (1957).
This distinction is important because the liabilities of a principal and an agent under each situation are not the same in a suit by a third party to the transaction. Where the principal is a partially disclosed principal, both the agent and the principal are considered parties to the contract, and both the principal and the agent have separate liability to, and may be sued by, a third party without joinder of the other. Restatement (Second) of Agency § 321 Comment b (1957). Moreover, an agent of a partially disclosed principal is not relieved from liability by the fact that the third party obtains a judgment against the principal, where that judgment remains unsatisfied. Restatement Second of Agency § 336 (1957). However, liabilities of a principal and an agent are not the same where the principal is an undisclosed principal. As with a partially disclosed principal, the agent of an undisclosed principal becomes a party to the contract. Restatement (Second) of Agency § 322 (1957). But, the liabilities of the undisclosed principal and the agent to a third party are alternate rather than joint and several. The third party may join both the principal and the agent in a lawsuit. However, if either the principal or agent objects, the third party must make an election as to which one to hold Hable. Restatement (Second) of Agency § 210A (1957). Moreover, if the third party obtains a judgment against the undisclosed principal, the agent is discharged from HabiHty. Restatement (Second) of Agency § 337 (1957).
It should be noted that the above inconsistency and treatment appears to have no real basis. In fact, the authors of the Restatement recognized the inconsistency and state that the rule regarding undisclosed principals “appears to be inconsistent with the basic reason underlying the HabiHty of the undisclosed principal.” Restatement (Second) of Agency § 210, Comment a and § 337, Comment b. However, the authors note that the rule “represents the prevaiHng judicial viewpoint, although a few states hold otherwise and most of the commentators find it inconsistent and unjust.” Restatement (Second) of Agency § 210 Comment a. However, the question of whether Kansas would follow Restatement (Second) of Agency §§ 210 and 337 need not be resolved in this case. In this case, we deal with a partially disclosed principal. The uncontroverted facts before the trial court established that at the time of the agreement in question, Dimension was dealing with Liebowitz and Jacobson as agents for Worldwide. Thus, Dimension knew that Liebowitz and Jacobson were agents for a principal but did not know that their principal was, in fact, Paradise. This makes Paradise a partially disclosed principal. According to the uncontroverted facts, at no time did Dimension deal with Liebowitz and Jacobson acting on their own behalf. Thus, Paradise cannot be an undisclosed principal. See Restatement (Second) of Agency § 4.
As Paradise was a partially disclosed principal, both Paradise and its agents, Liebowitz and Jacobson, have separate liability to and may be sued by Dimension without joinder of the other. See Restatement (Second) of Agency § 321. Moreover, Liebowitz and Jacobson, as agents of Paradise, were not relieved from liability by the fact that Dimension obtained a judgment against Paradise, where the judgment remains unsatisfied. See Restatement (Second) of Agency § 336.
The trial court, in finding that Paradise was an undisclosed principal, stated that the federal district court had so found. Apparently, the trial court concluded that this finding had a res judicata effect and was entitled to judicial notice.
However, the finding of the federal district court that Paradise was an undisclosed principal is not binding in the present action. Liebowitz and Jacobson were not parties to the action in the federal district court. See Ellis v. State Farm Mut. Auto Ins. Co., 249 Kan. 599, 603, 822 P.2d 35 (1991), (res judicata requires identity of persons and parties to the action). Nor could it be said that Liebowitz and Jacobson were in privity with Paradise, for under the Restatement (Second) of Agency, an agent for an undisclosed principal or partially disclosed principal becomes a party to the contract. See Restatement (Second) of Agency §§ 321 and 322.
The Kansas Supreme Court has held that there is no authority for a trial court to take judicial notice of a factual conclusion reached in another court in another case. See Catholic Housing Services, Inc., v. State Dept. of SRS, 256 Kan. 470, 478, 886 P.2d 835 (1994). The district court in this case was not bound to take judicial notice of the federal district court’s finding that Paradise was an undisclosed principal.
The defendants note in their argument that Dimension litigated its federal district court suit against Paradise under the theory that Paradise was an undisclosed principal. In fact, Dimension began this lawsuit against Liebowitz and Jacobson under the theory that Paradise was an undisclosed principal before changing its position to assert that Paradise was a partially disclosed principal. “As a general rule parties to an action are bound by their pleadings and judicial declarations and are estopped to deny or contradict them where the other parties to the action relied thereon and changed their position by reason thereof.” Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 247, 662 P.2d 1195 (1983.) However, the record before us reveals no facts which show that either Liebowitz or Jacobson changed his position in reliance on Dimension’s characterization of the principal as undisclosed, or suffered harm by such a characterization. As a result, estoppel does not apply.
As Paradise was a partially disclosed principal in this action, the judgment obtained against Paradise in the United States District Court for the District of Kansas does not absolve agents Liebowitz and Jacobson of their liability under the contract. The trial court erred in granting summary judgment for the defendants. We, therefore, reverse and remand this case for further proceedings. | [
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Pierron, J.:
Sam Thomas, Jr., appeals the district court’s probation order confining him until an opening was available in the community corrections residential program. Thomas argues the court had no authority to indefinitely confine him pending placement in the community corrections residential program.
The facts are not in dispute. On September 18, 1995, Thomas pled guilty to possession of cocaine, possession of a controlled substance without a tax stamp, and criminal use of a weapon. His classification of 4-1 put him in the presumptive probation portion of the sentencing grid for drug offenses. The district court sentenced Thomas to 24 months’ probation.
On January 9, 1997, the district court conducted a probation violation hearing. Thomas admitted to eight violations of the conditions of his probation, including continued cocaine use. The court revoked Thomas’ probation, but reinstated probation under the same terms and conditions except that he would be under the intensive supervision of community corrections, instead of adult probation.
On October 3, 1997, the district court conducted a second probation violation hearing. Thomas admitted to three violations of the conditions of his probation, including continued cocaine use. The court revoked Thomas’ probation under the community corrections intensive supervision program. The court reinstated probation, but due to Thomas’ continued drug use, ordered Thomas to be placed in the community corrections residential program. The court realized there were no beds currently available in the residential program and ordered Thomas to be held in jail until a bed became available. Thomas objected at the hearing stating that if he was confined in jail he would lose the continued drug treatment he had been receiving and the progress he had made.
On October 21,1997, Thomas filed a motion to modify the terms and conditions of his probation. He argued the district court lacked authority to confine him beyond the 30 days permitted in K.S.A. 21-4610(c)(13), now K.S.A. 1998 Supp. 21-4610(c)(14), and K.S.A. 21-4602(c). Thomas’ memorandum in support of his motion indicated that the community corrections program had been contacted and stated it would be another 4-6 weeks before a bed would be available. The court denied Thomas’ motion. The court held the jail time was not a condition of Thomas’ probation:
“The defendant’s probation was reinstated to Community Corrections residential at the last hearing. The defendant was technically under the supervision of Community Corrections from the date of the Court’s order. However, since a bed was not available, the defendant was ordered held in custody until a bed is available. The intervening jail time between the reinstatement to Community Corrections and the actual physical placement of the defendant in the residential unit is not a condition of defendant’s probation. It’s just a necessity caused by the residential unit being to capacity at the time of defendant’s reinstatement.
“I find defendant’s argument to be without — without merit. And this morning the defense raises another — puts forth another argument, and that is a public policy argument. Well, I find that without merit, also. In fact, to the contrary, I find that there is a strong public policy argument to be made that the Court has a duty to the citizenry to ensure that defendants who continue to violate the conditions of their probation be kept off the street.”
Because Thomas has already been placed in the community corrections residential program while this appeal has been pending, the State argues the appeal is moot.
Inasmuch as we decide actual controversies and issue judgments to be carried into effect, and we decline to give opinions on moot questions or abstract propositions, or declare principles which cannot affect the matter in issue, a defendant must present an actual controversy that requires adjudication. State v. Zimmer, 19 Kan. App. 2d 617, 618, 873 P.2d 1381 (1994). Here, Thomas asks this court to declare the district court had no authority to jail him while he waited to enter the community corrections residential program. Since his appeal, he has been given a bed in the residential program. Although clearly a controversy existed when Thomas waited in jail, the controversy no longer exists because of his placement in the program.
However, because the issue raised is capable of being repeated and is of public importance, we conclude Thomas’ issue satisfies the public interest exception for mootness. See Gibbons v. Brotherhood of Railway, Airline & Steamship Clerks, 227 Kan. 557, 608 P.2d 1320 (1980); Reece Shirley & Rons Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 592 P.2d 433 (1979). This case involves the interpretation of Kansas penal statutes that apply to individuals subject to criminal sentencing. Appeals from misapplication of these statutes will generally become moot prior to the time an appeal can be completed. However, future misapplication of these statutes is capable of being repeated when courts discover that residential programs are already full. The curtailment of future misapplication of these statutes is of public importance. We therefore believe we should address this issue, although as to Thomas the matter may be moot.
In a situation where a community corrections residential program is full, the alternatives for a defendant and the community are either to incarcerate the defendant or give the defendant a more lenient probation, such as community corrections intensive supervision or regular adult probation. Thomas argues Kansas statutes do not give the sentencing court the authority to set the condition of probation at issue here. He contends that K.S.A. 21-4603d (now K.S.A. 1998 Supp. 21-4603d), the authorized dispositions statute, only authorizes a 30-day jail time as a condition of probation, and the district court lacked the authority to impose a seemingly indeterminate jail sentence pending his placement in the community corrections residential program. Thomas also states it is irrelevant whether the sentencing court considered this to be a condition of his probation. We agree.
Kansas courts have consistently recognized that probation is a privilege granted by the sentencing court and the court has broad power and authority in imposing conditions of probation so long as such conditions do not violate statutory law or constitute an abuse of discretion by the court. See State v. Walbridge, 248 Kan. 65, 68, 805 P.2d 15 (1991). The court in State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986), stated: “Probation from serving a sentence is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The judge, when granting probation, has broad powers to impose conditions designed to serve the accused and the community.”
Prior to July 1, 1991, 21-4610(c) did not include a specific provision expressly allowing a sentencing court to impose confinement in jail as a condition of probation. See K.S.A. 21-4610(3) (Ensley 1988). In Walbridge, 248 Kan. at 69, the court concluded that jail time constituted imprisonment and was, therefore, incompatible with probation.
Although the imposition of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., has curbed the district court’s discretion in awarding prison or nonimprisonment sentences, if probation is granted, the district court’s discretion in imposing conditions upon the probation has remained the same. See K.S.A. 1998 Supp. 21-4610(c).
When a defendant has been found guilty of a crime, K.S.A. 1998 Supp. 21-4603d controls as to the authorized dispositions permit ted a sentencing court. K.S.A. 1998 Supp. 21-4603d(a)(3) provides the sentencing court with the authority to
“release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate. In felony cases except for violations of K.S. A. 8-1567 and amendments thereto, the court may include confinement in a county jail not to exceed 30 days, which need not be served consecutively, as a condition of probation or community corrections placement.” (Emphasis added.)
The Kansas Legislature has also delineated a list of conditions the sentencing court may use in estabhshing a defendant’s probation. K.S.A. 1998 Supp. 21-4610(c) states that the list of conditions stated therein is not an exhaustive list. However, in particular, K.S.A. 1998 Supp. 21-4610(c)(14) states that in setting probation, the sentencing court may order the defendant, “in felony cases, except for violations of K.S.A. 8-1567 and amendments thereto, be confined in a county jail not to exceed 30 days, which need not be served consecutively.’’
The State argues the requirement that Thomas remain in jail was not a condition of his probation, but rather a necessity due to the fact that he had been granted another probation opportunity, and there were no beds available at the residential community corrections facility. The State also cited the sentencing court’s comments that the court has a duty to protect the citizenry from defendants who continue to violate their probation. The State also points out the court’s only other option was to incarcerate Thomas, which he surely did not want.
We recognize the trial court had good intentions in jailing Thomas until a bed became available in the residential program. We also agree that the court has a duty to protect the citizemy from probationers who repeatedly violate the conditions of their probation. However, the reality is that the court cited no authority, nor is there any authority, to incarcerate Thomas beyond 30 days. The legislature has clearly spoken in this matter. See K.S.A. 1998 Supp. 21-4610(c)(14) and K.S.A. 21-4602(c).
Probation is an act of grace. Reinstatement of probation in this case was clemency of the highest nature. Thomas continued to use drugs, yet somehow he persuaded the court to twice reinstate his probation. As the State points out, the defendant did not want to go to prison, but if there are no beds available in the residential program, the court can clearly order jail time for 30 days. After the 30-day period, the court can evaluate the situation and choose between sending the defendant to prison or giving a more lenient probation. These are the only options the court has.
We believe the district court’s actions made good sense from a correctional standpoint. Unfortunately, we do not believe the court has the authority to incarcerate a defendant beyond the 30 days allowed in the statute under these facts. The authority to grant an extension of the 30-day period to await the availability of a bed in a specific facility would need to come from the legislature.
Reversed. | [
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Noland, J.:
Darrell D. Chappell appeals his jury trial convictions of aggravated criminal sodomy and aggravated indecent liberties with a child.
The trial court sentenced Chappell to a term of 91 months on the aggravated criminal sodomy conviction and 49 months for the conviction of aggravated indecent liberties with a child. The court ordered the sentences to run consecutively, for a total controlling term of 140 months.
Chappell appeals his convictions on the grounds that the trial court and prosecutor improperly vouched for the credibility of a witness and on numerous other errors.
FACTS
In the summer of 1995, Chappell was living in Hutchinson along with his wife, Patty, and their 9-year-old son, S.C., and 7-year-old daughter, B.C. While walking to the Fourth of July parade, B.C. confided to S.C. that Chappell was touching her private parts. The children then made a plan to run away to a city park. On the evening of July 25, the children fulfilled their plan by exiting their house through a window and then rode their bikes to a park. Later that night, the children became frightened and went to their grandmother’s house.
After arriving at the house, S.C. informed his grandmother and his uncle that Chappell had been touching B.C.’s private areas. The police were then called, and upon their arrival, were advised by B.C. that the touchings had occurred for approximately 2 years, with the latest incident occurring sometime in July 1995.
Around 7 a.m., Chappell and his wife discovered their children were missing. Chappefl found a note in B.C.’s room that said, “[I]f you quit smoking, will come home. We ran away. We are okay. Love, [S.C.] and [B.C.]. [T]hat ain’t the only t[h]ing.” Patty then called her mother and discovered that the children were at her house. Patty was then told of B.C.’s claim that Chappell had been molesting her.
During the trial, S.C. testified that the last sentence of the note referred to Chappell’s touching of B.C.’s private parts. B.C. testified that her father had been touching her vagina with his fingers and mouth in her bedroom at night. B.C. stated that on one occasion, Chappell placed green aloe vera gel on his penis and then made her touch his penis. Chappell denied all allegations.
The State’s first witness called at trial was B.C. As soon as B.C. was called to the stand, the trial judge sua sponte examined her in the presence of the jury regarding her ability to tell the truth. After a brief voir dire, the judge declared: “Okay. I am convinced that she is capable of telling the truth.” The prosecutor then asked a few questions of B.C. and then similarly stated, ‘Tour Honor, I am satisfied the child can certainly tell the truth. I think she has given illustrations. I am satisfied.” The judge responded, “I am satisfied and you are, but [defense counsel] has the right to voir dire her, so I will allow him to do that.”
Defense counsel’s voir dire of B.C. included the following:
“Q. Have you ever told a lie to your mom?
“A. I can’t remember if I did or not.
“Q. Have you told a lie to your dad?
“A. No.
“Q. Have you told a lie to anyone else that you can remember?
“A. (Shaking head from side to side.) I can’t remember.”
Shortly after this exchange, the prosecutor objected to further inquiry of B.C. by defense counsel, alleging that the voir dire was “cross-examination material.” The trial judge then stopped defense counsel’s voir dire by stating, “I think that this child knows what we are here for today and that she has answered all the questions truthfully . . . and is capable to testify here as a witness.” (Emphasis added.)
It is stipulated that defense counsel did not contemporaneously object to these comments.
Discussion
Initially, the State alleges that Chappell has failed to preserve this issue for appellate consideration pursuant to his failure to contemporaneously object to the comments at trial. See State v. O’Neal, 238 Kan. 183, 188, 708 P.2d 206 (1985). Chappell concedes his failure to timely object at trial. However, he alleges that his fundamental right to a fair trial, including a jury determination of the witnesses’ credibility, is at stake and, thus, this court may consider this issue.
Although an issue may not have been properly preserved at the trial court level, an appellate court has the power to consider the issue when “necessary to serve the interests of justice or to prevent a denial of fundamental rights.” State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992).
In order for a trial judge’s improper comments to require a reversal of a conviction, “it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.” State v. Nguyen, 251 Kan. 69, Syl. ¶ 4, 833 P.2d 937 (1992).
However, the mere possibility of prejudice from a remark will not result in a reversal where an interpretation can reasonably be given to the remark that would render it unobjectionable. Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975).
In deciding if prosecutorial misconduct warrants reversal, “an appellate court determines whether there was little or no likelihood the error changed the result of the trial.” State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988).
Chappell alleges that statements by the trial court and the prosecutor in vouching for the credibility of B.C. invade the province of the jury and deny his right to a fair trial guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. The United States Supreme Court has recognized that the Due Process Clause guarantees the precept of fundamental fairness in criminal trials. Spencer v. Texas, 385 U.S. 554, 563-64, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967).
The Kansas Supreme Court, in discussing the role of the trial judge, has stated:
“In State v. Winchester, [166 Kan. 512, 203 P.2d 229 (1949),] we stated that where the judge deems it necessary to cross-examine witnesses, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness and a judge should exercise great care and caution to satj nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony. This admonition was recently repeated in State v. Jones, [204 Kan. 719, 466 P.2d 283 (1970)]. These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.” State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977).
Allegations of judicial misconduct must be decided based upon the surrounding facts and circumstances. State v. Stoops, 4 Kan. App. 2d 130, 132, 603 P.2d 221 (1979). Here, the surrounding facts and circumstances reveal that this was an extremely close case in which the jury was primarily required to weigh and contrast the credibility of B.C. and Chappell. Accordingly, it was critical that the trial judge say nothing that would give the jury the impression that he found B.C. to be credible.
In this light, the comments of the trial judge became problematic when the judge stated, in the presence of the jury, that B.C. was capable of telling the truth and had answered all questions truthfully.
The State contends the remarks are subject to the harmless error standard. We find the error is not harmless when the surrounding facts and circumstances are considered. The trial court improperly lent its exalted weight to the testimony of the prosecution’s primary witness in a closely balanced case. Moreover, the State compounded the error during its voir dire of the witness by stating that it was satisfied that B.C. was capable of telling the truth and had given illustrations of her ability to tell the truth. This court has previously observed that it is reversible error for a prosecutor to vouch for the credibility of a witness. State v. Gammill, 2 Kan. App. 2d 627, 632, 585 P.2d 1074 (1978).
Chappell has identified several cases from other jurisdictions which are instructive in the present matter. Those include People v. Rush, 250 Ill. App. 3d 530, 620 N.E.2d 1262, cert. denied 153 Ill. 2d 567 (1993); State v. Zamorsky, 159 N.J. Super. 273, 387 A.2d 1227 (1978); and State v. Suttles, 767 S.W.2d 403 (Tenn. 1989). We find Zamorsky to be most closely on point.
In Zamorsky, the trial judge interrogated a child witness in the presence of the jury to determine the child’s competency as a witness. At the conclusion of the interrogation, the trial judge stated, “ 1 think she will try to tell us the truth. I will find her qualified.’ ” 159 N.J. Super, at 281. The trial judge further stated, “ We have to judge what the child [sic] to see whether the child will tell her version truthfully, just as you would with any of your children.’ [Emphasis supplied].” 159 N.J. Super, at 281.
The Zamorsky court held that fhe trial court’s comments were inherently prejudicial because they conveyed to the jury the impression that the trial court found the child witness to be credible. The Zamorsky opinion reasoned: "There is no doubt that K’s testimony was crucial to the State’s case. The implied indorsement of her credibility by the trial judge thus ‘had the capacity to tip the scale against defendant.’ ” Zamorsky, 159 N.J. Super, at 281-82 (quoting State v. Corbo, 32 N.J. 273, 276, 160 A.2d 625 [I960]).
A trial court must avoid making any comments which could be interpreted by a jury as an endorsement of the credibility of a witness. As in Zamorsky, the trial judge’s comments in the present matter improperly lent credence to the testimony of B.C.
The evidence in this matter was closely balanced, with the outcome hinging upon the jury’s perception of B.C.’s credibility. Under these circumstances, the trial court’s comments during the interrogation of B.C. in the presence of the jury substantially prejudiced Chappell’s right to a fair trial.
The purpose of the interrogation was to determine whether B.C. understood her duty to tell the truth, not whether she would tell the truth. The Zamorsky court states:
“Interrogating a child offered as a witness, where the qualification of the child to testify is in issue, is a difficult task which cannot be performed in a proforma or perfunctory manner. Since fhe goal is to ascertain fhe child’s comprehension of fhe duty of a witness to tell fhe truth, it is first necessary to explore the child’s conceptual awareness of truth and falsehood. The younger the child, the more searching the inquiry must be. When it has been established that the child un derstands the meaning of those terms, the next area of inquiry is not, as is so often the case, whether the child will tell the truth, but rather whether the child understands that it is his or her duty to tell the truth. ... It should suffice if the child understands that it is wrong to tell a he and that one must always speak the truth. If the trial judge is satisfied from his interrogation that the child is sensitive to his or her obligation to tell the truth, we will not disturb his conclusion unless it is plainly unsupported by the evidence.” 159 N.J. Super, at 280.
The credibility of B.C. was for the jury to determine. However, the trial court’s comments conveyed a message to the jury that B.C. would tell the truth while testifying and, thus, was credible. We recognize that the remarks made by the trial judge during his voir dire of B.C. were well intentioned; however, Chappell has a right to a fair trial devoid of comments by the court which bolster die credibility of the State’s primary witness.
In those instances where the qualification of a child witness to testify is in issue, the voir dire, whether conducted by court or counsel, should occur outside the presence of the jury. The failure to adopt this procedure in conducting die voir dire of B.C. allowed the jury to hear the improper comments of the trial court and prosecutor. This compels us to find that Chappell was seriously prejudiced and his constitutional right to a fair trial was, accordingly, denied. Chappell’s convictions are, therefore, reversed, and this matter is remanded for a new trial. In view of this determination, other issues raised on appeal need not be addressed.
Reversed and remanded for a new trial. | [
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Gernon, j.:
Thomas E. Stevens appeals the district court’s denial of his motion to rescind the registration requirements under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., or to prohibit disclosure of his registration information on the internet.
Stevens pled no contest to one count of indecent liberties with a child. Prior to his sentencing hearing, he filed a motion to rescind the registration requirements under KORA or, in the alternative, to bar disclosure of his registration information from the Kansas Bureau of Investigation’s (KBI) internet web page. The sentencing court held a hearing on Stevens’ motion, denied the motion, and sentenced Stevens to 36 months’ probation. Stevens appeals the denial of his motion.
Stevens first argues that he has a right to a hearing to determine whether he poses a threat to society before being forced to comply with the KORA.
The record clearly shows that a hearing was held, although it was heard prior to his sentencing. The trial court concluded that the record failed to establish that Stevens did not pose a danger to society and denied his motion. This issue is moot and will not be considered.
Stevens next argues that the disclosure of a sex offender’s registration information on the internet violates the disclosure provisions of the KORA and violates the offender’s right to privacy.
K.S.A. 1998 Supp. 22-4909 provides:
“The statements or any other information required by this act shall be open to inspection in the sheriff s office by the public and specifically are subject to the provisions of the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto, except that the name, address, telephone number, or any other information which specifically and individually identifies the victim of any offender required to register as provided in this act shall not be disclosed other than to law enforcement agencies.”
K.S.A. 1998 Supp. 22-4909 must be read in conjunction with the entire KORA to see if the statutes are in harmony or whether they conflict. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997). The KORA requires that all offender registration information be provided to the KBI. See K.S.A. 1998 Supp. 22-4905(a)(2)(B), K.S.A. 1998 Supp. 22-4907(a).
The Open Records Act requires the sheriff to keep the records available for public inspection, see K.S.A. 45-218; provide copies of the information, see K.S.A. 1998 Supp. 45-219; and establish procedures for making the information available to the public, K.S.A. 45-220. The Open Records Act also establishes a list of public records that are not subject to mandatory disclosure. K.S.A. 1998 Supp. 45-221. Pursuant to K.S.A. 1998 Supp. 45-221(a) (29)(C), access to offender registration information is specifically authorized.
Our reading of the statutes leads us to conclude that it is the legislative intent to provide public access to the registration information required when an offender falls within the provisions of the KORA.
We further conclude that disclosures on the internet are allowed, given our reading of the statutes.
K.S.A. 45-220(a) provides:
“Each public agency shall adopt procedures to be followed in requesting access to and obtaining copies of public records, which procedures shall provide full access to public records, protect public records from damage and disorganization, prevent excessive disruption of the agency’s essential functions, provide assistance and information upon request and insure efficient and timely action in response to applications for inspection of public records.”
Pursuant to K.S.A. 45-220(a), the KBI is not precluded from publishing the information on the internet unless the internet jeopardizes the records or their organization, disrupts the agency’s essential functions, fails to provide assistance upon request, or fails to insure efficient and timely response to applications for inspection of the information. Clearly, the internet provides a medium that meets all of the criteria required in K.S.A. 45-220. As a result, disclosure on the internet is not contrary to K.S.A. 1998 Supp. 22-4909.
Stevens next argues that K.S.A. 1998 Supp. 22-4909 is unconstitutional as a violation of his right to privacy.
The constitutionality of a statute is a question of law over which an appellate court has unlimited review. State v. Scott, 265 Kan. 1, 4, 961 P.2d 667 (1998).
In reviewing the constitutionality of a statute, an appellate court must consider the following standards:
“ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless tire infringement of tire superior law is clear beyond substantial doubt.’ ” 265 Kan. at 4 (quoting State v. Bryan, 259 Kan. 143, Syl. ¶ 1, 910 P.2d 212 [1996]).
Stevens argues that the statute impinges on his right to privacy by attacking his reputation, forcing him to disclose personal information, and subjecting him to ostracism, stigma, ridicule, reprisal, and vigilante action by members of the public. Essentially, Stevens is claiming a privacy interest in his reputation and his personal information.
Kansas has not previously determined whether an individual has a constitutional privacy interest in his or her reputation and personal information. Kansas, however, has determined that an individual does not have a protected privacy interest in his or her arrest and conviction record. Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 125, 531 P.2d 455 (1975).
Courts have identified two clusters of privacy rights that are constitutionally recognized. One of the clusters involves the autonomy to make significant personal decisions. Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 182-83 (1st Cir. 1997). This cluster includes decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. 110 F.3d at 183. See Whalen v. Roe, 429 U.S. 589, 600 n.26, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); see also Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982) (finding a privacy interest in raising children).
The other cluster involves an individual’s interest in avoiding disclosure of personal matters. Whalen, 429 U.S. at 599. Although the Whalen Court identified this cluster, it did not identify the types of personal matters that are included in this cluster. 429 U.S. at 599 n.25. Indeed, “the contours of the confidentiality branch are murky.” Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir. 1991), cert. denied 502 U.S. 1095 (1992). Generally, the right to privacy is only implicated when the information disclosed “affects an essential component of a person’s dignity.” United States v. McFillin, 713 F.2d 57, 60 (4th Cir. 1981). The federal circuit courts do not agree when an essential component of a person’s dignity has been implicated.
In Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999), the Third Circuit addressed whether the notification provisions of New Jersey’s sex offender registration act violated an offender’s right to privacy. The court noted the general understanding that home addresses are entitled to some privacy protection, so it refused to find no privacy interest in a person’s home address. 170 F.3d at 404. Nonetheless, the court upheld the statute, finding that the State’s compelling interest in preventing sex offenses outweighed any privacy interest an offender might have in preventing the disclosure of his home address. 170 F.3d at 404.
Two states, Massachusetts and New Jersey, have found that an offender’s constitutional privacy interests are implicated by the notification provisions of sex offender registration statutes. In Doe v. Attorney General, 426 Mass. 136, 144, 686 N.E.2d 1007 (1997) (subsequently referred to as Doe 3 by the Massachusetts court), the Massachusetts Supreme Judicial Court held that a level 1 (low level risk) sex offender has a liberty and privacy interest protected by the Massachusetts Constitution. This interest arises due to the combination of the following circumstances: “(1) the requirement that he register with local police; (2) the disclosure of accumulated personal information on request; (3) the possible harm to his earning capacity; (4) the harm to his reputation; and, most important, (5) the statutory branding of him as a public danger, a sex offender.” 426 Mass, at 144. The Doe court held that a low level risk offender was entitled to procedural due process before he or she could be required to register and before his or her registration information could be publicly disclosed. 426 Mass, at 146. The Massachusetts Supreme Judicial Court recently upheld its decision in Doe 3 and applied it to level 2 and 3 sex offenders. Doe v. Attorney General, 430 Mass. 155, 163, 166, 715 N.E.2d 37 (1999).
In John Doe v. Poritz, 142 N.J. 1, 83-84, 662 A.2d 367 (1995), the Supreme Court of New Jersey held that the disclosure of an offender’s home address, when coupled with the other information included in the notification statute, implicates a privacy interest. The court, however, determined that an offender can only claim a limited expectation of privacy in the information. 142 N.J. at 88. Noting that the degree and scope of disclosure was “carefully calibrated” to the need for public disclosure, the court upheld the statute based on a prevailing state interest in protecting the public from the substantial danger of recidivism by sex offenders. 142 N.J. at 89-90.
Some states have refused to find a privacy interest on behalf of the offender. Patterson v. State, 985 P.2d 1007 (Alaska App. July 23, 1999) (holding that the right of privacy does not attach to matters already within the public domain); People v. Logan, 302 Ill. App. 3d 319, 334, 705 N.E.2d 152 (1998) (stating that “[t]he defendant cannot argue that the compilation and dissemination of truthful information that is already, albeit less conveniently, a matter of public record constitutes a legitimate privacy interest”), reaff'd by People v. Malchow, 306 Ill. App. 3d 665, 671, 714 N.E.2d 583 (1999); State v. Dickens, 1999 WL562125, aff'd 890 Ohio 3d 59, 62, 728 N.E.2d 1037 (2000) (finding that the harsh consequences of registration and notification result from the offender’s past actions, not the offender registration law); State v. Heiskell, 77 Wash. App. 943, 945-46, 895 P.2d 848 (1995), rev’d on other grounds State v. Heiskell, 129 Wash. 2d 113, 916 P.2d 366 (1996) (stating that in light of prior discussions the issue is without merit and warrants no further discussion).
Other states have determined that an offender’s privacy interest is limited by the state’s interest in protecting the public from recidivism by sex offenders. Dept. of Public Safety v. Superior Court, 190 Ariz. 490, 495, 949 P.2d 983 (1997) (stating in dicta that persons convicted of committing sex offenses have a reduced expectation of privacy because of the public’s interest in public safety in determining that sex offender registration statute did not violate prohibition on ex post facto laws); State v. Calhoun, 669 So. 2d 1351, 1358 (La. App. 1996), rend on other grounds State v. Calhoun, 694 So. 2d 909 (La. 1997) (stating that the right to privacy is not absolute and that sex offender’s expectation of privacy is outweighed by the state’s compelling interest in protecting the public); Com. v. Mountain, 711 A.2d 473, 478 (Pa. Super. 1998) (finding that “the momentary inconvenience of disclosing [the re quired offender] information to police is greatly outweighed by the need to ensure public safety”).
Given the legislative intent evidenced by the plain language of the statute, we conclude that the placing of offender registration information on the internet does not impinge on Stevens’ constitutional right of privacy. A strong argument can be made for requiring a court to determine a level of risk involved on a case-by-case basis and then determining to what degree the State is allowed to impinge on an individual’s right of privacy to better ensure public safety. We can assume here that the legislature carefully studied such a proposal and rejected it.
We must now consider whether the statute passes constitutional muster using the rational basis test. See Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987). Under that test, the Constitution is offended only if the statute rests on grounds that are wholly irrelevant to the achievement of the State’s purpose. Disclosure of sex offender registration information on the internet clearly passes this test. The statute was enacted to protect the public from sex offenders. Wide dissemination of sex offender registration information is not wholly irrelevant to the State’s purpose.
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Hill, J.:
This is an appeal taken by the Lawrence Paper Company (Company) and the Kansas Workers Compensation Fund (Fund) from the Workers Compensation Board’s (Board) awarding permanent partial disability compensation to the claimant, Donald E. Curran. In a cross-appeal, the claimant alleges that the Board failed to rule on a certain issue of law. We affirm the Board and decline to consider the cross-appeal.
The claimant operated a forklift in the shipping department of the Lawrence Paper Company. This work required him to steer with his left hand while operating the controls of the lift with his right hand. The claimant developed pain in his left hand. He informed his employer of this and was sent for medical treatment. The claimant ultimately underwent carpal tunnel surgery.
The claimant missed only 3 days of work following the surgery. One of his doctors had recommended some work restrictions, which the claimant and the Company followed. The claimant worked on the accommodated job for 5 days before finally returning to his regular duties.
The administrative law judge denied the claimant permanent partial disability benefits on the basis that the claimant was not disabled for a period of at least 1 week from earning full wages at his work with the Company.
On appeal, the Board reversed and found that the claimant was entitled to permanent partial disability benefits. The Board concluded that the claimant did miss 3 days of work and was then placed on light duty for another 5 days; therefore, the claimant was disabled from doing his normal work duties as a forklift operator for 8 days.
The Company and the Fund both argue that the claimant was not eligible for permanent partial disability compensation by operation of K.S.A. 1992 Supp. 44-501(c).
Interpretation of a statute is a question of law subject to unlimited review. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 1992 Supp. 44-501(c) states:
“Except for liability for medical compensation, as provided for in K.S.A. 44-510 and amendments thereto, the employer shall not be liable under the workers compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which the employee is employed.”
Since 1977, our Supreme Court has held that a worker who suffered an actual injury resulting in permanent partial disability could maintain a claim for the disability even if the worker returned to work within a week. Gillig v. Cities Service Gas Co., 222 Kan. 369, 371, 564 P.2d 548 (1977). The clear purpose of 44-501(c) was to protect employers from trivial and inconsequential claims, not to bar workers who suffered injuries which resulted in permanent partial disability. Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, Syl. ¶ 4, 207 P.2d 1179 (1949).
Then, in 1995, in Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 911 P.2d 198 (1996), rev. denied 260 Kan. 991 (1996), a panel of the Court of Appeals interpreted 44-501(c) in the light of a 1975 amendment which added a medical compensation provision, along with a 1987 amendment which mandated impartial application of the Workers Compensation Act. Holding the statute was unambiguous and should be given its ordinary meaning, the panel reversed an award where the claimant did not miss any work because of his injury. 21 Kan. App. 2d at 978-81, 983. Our Supreme Court recently reached a similar conclusion in Matney v. Matney Chiropractic Clinic, P.A., 268 Kan. 336, Syl. ¶ 1, 995 P.2d 871 (No. 79,560 filed January 28, 2000) (where injury does not disable employee for period of at least 1 week from earning full wages at work at which employee is employed, employer liable only for medical expenses incurred by employee) where the claimant had decreased the number of hours he had worked but drew the same salary.
However, this case is distinguishable from both Boucher and Matney. In Boucher, the claimant’s injury did not prevent him from performing his duties as a plant manager. In Matney, the claimant simply reduced his hours but drew the same pay. In other words, in neither Boucher nor Matney did the injury disable the employee from doing the work at which he was employed. Here, the claimant was disabled from his regular work, that of driving a forklift.
In construing a statute, effect must be given, if possible, to every part of the act. Boucher, 21 Kan. App. 2d at 981. K.S.A. 1992 Supp. 44-501(c) requires that the employee be disabled for at least 1 week from both earning full wages and from doing the work for which he or she is employed. In this case, while the claimant received full wages for his accommodated work, he was not doing what he was employed to do. To apply K.S.A. 1992 Supp. 44-501(c) because claimant received full wages after less than a week even though he could not do his job would be to ignore the unambiguous ordinary meaning of the statute.
In his cross-appeal, the claimant argues that K.S.A. 1992 Supp. 44-501(c) is not applicable to the scheduled injuries listed in K.S.A. 1992 Supp. 44-510d(a). The Board did not base its ruling on this rationale. Because we affirm the award, the question is moot, and we decline to consider the issue. See Shanks v. Nelson, 258 Kan. 688, Syl. ¶ 1, 907 P.2d 882 (1995) (appellate courts do not render advisory opinions).
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PlERRON, J.:
Kinnet and Liberty Cellular, appellants, appeal the district court’s decision affirming the Kansas Board of Tax Appeals’ (BOTA) ruling that BOTA lacked subject-matter jurisdiction to consider an appeal. Appellants argue BOTA erroneously interpreted and applied K.S.A. 79-1702 and that BOTA’s order was unreasonable, arbitrary, and capricious. We affirm.
The facts in this case are undisputed. Kinnet is a Kansas corporation and a wholly owned subsidiary of Liberty Cellular, doing business as Kansas Cellular. Liberty Cellular and Kinnet (both hereinafter “Taxpayers”) are cellular telephone companies. The Taxpayers were centrally assessed by the Kansas Department of Revenue, Property Valuation Division (PVD), as “public utilities” for property tax classification purposes for the calendar years 1994 and 1995. The “public utility” classification, pursuant to K.S.A. 79-5a01, caused the Taxpayers’ property to be assessed at the rate of 33% of fair market value for the years at issue. The Taxpayers did not appeal the central assessment for the tax years 1994 and 1995.
On May 31,1996, the Kansas Supreme Court issued its decision of In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 917 P.2d 827 (1996). There, the court held that cellular telephone companies that are not engaged in providing public landline telephone or telegraphic service within the state are “radio common carriers,” not “public utilities.” Therefore, these cellular telephone companies are not subject to central assessment by the PVD pursuant to K.S.A. 79-5a01 et seq. at the rate of 33% of fair market value. The result is that the property of cellular telephone companies is to be locally assessed by the respective county appraisers in the counties where such property is located. The Taxpayers were not parties in Topeka SMSA.
Shortly after the Topeka SMSA decision, the Taxpayers in the case at bar filed a tax grievance with BOTA pursuant to K.S.A. 79-1702 to protest their property taxes for the calendar years 1994 and 1995. The Taxpayers sought a re-assessment for 1994 and 1995 by the respective county appraisers at the rates under K.S.A. 1996 Supp. 79-1439, as well as a refund for those years. The Taxpayers based their appeal on Topeka SMSA.
BOTA dismissed the Taxpayers’ appeal finding it lacked subject matter jurisdiction to render a decision on the merits. BOTA concluded that K.S.A. 79-1702 is not available to redress tax grievances where the subject property has been assessed as a public utility by the Director of PVD. Since Topeka SMSA had not yet been filed when the 1994 and 1995 taxes were assessed, BOTA stated the proper procedure for the Taxpayers would have been to appeal the decision of the PVD pursuant to K.S.A. 79-5a05 and 74-2438. BOTA found Topeka SMSA had prospective application only.
The Taxpayers then exhausted their administrative remedies and filed an appeal from BOTA’s decision in the Saline County District Court. Using the same analysis as BOTA, the district court found the Taxpayers failed to pursue their remedies under K.S.A. 74-2438 even though they were aware of the pending appeal in Topeka SMSA and the body of case law setting out the exclusive remedy for relief from valuation as a “public utility.” The district court granted the Taxpayers’ motion to amend the journal entry to reflect that Taxpayers neither stipulated that they were correctly defined as a “public utility” nor that the tax assessment and classification was correct.
“The standard of judicial review of an administrative agency action is defined by file Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.” National Council on Compensation Ins. v. Todd, 258 Kan. 535, 538, 905 P.2d 114 (1995). Pursuant to K.S.A. 77-621(c)(4) and (8), in reviewing agency actions, a court shall grant relief if it determines that the agency has erroneously interpreted or applied the law, or the agency action is otherwise unreasonable, arbitrary, or capricious.
The procedural history of the case at bar is indicative of why BOTA lacked subject matter jurisdiction. First and foremost, the Taxpayers did not appeal the central assessment by the Director of PVD that they were “public utilities” for the years 1994 and 1995. Now, they seek retroactive application of Topeka SMSA in order to change their classification from public utilities to radio common carriers and receive tax relief for the years 1994 and 1995.
Based on the holding in Topeka SMSA, the Taxpayers argue the Director of the PVD did not have the authority to perform the valuation and assessment in the first place. They contend the Director overstepped his statutory and constitutional authority by valuing and assessing their property when the assessment should have been performed by the local taxing authorities. The Taxpayers contend that when the status of a Taxpayer is at issue and such status has not been addressed by the Kansas courts, and the grievance is not remediable under any other taxing provisions, K.S.A. 79-1702 is the logical statutory provision to allow BOTA to grant relief to the Taxpayers. This, the Taxpayers argue, is the only way to avoid an inequitable and unjust result.
The Taxpayers correctly state Topeka SMSA clearly provides they are “radio common carriers” for purposes of Kansas property taxes. They suggest that prior to the Topeka SMSA decision, they justifiably relied on the PVD’s classification of them as public utilities and paid their taxes for 1994 and 1995 without objection. The Taxpayers argue that Topeka SMSA stands for the proposition that they “were not and have never been public utilities.”
Taxpayers cite limited authority on why Topeka SMSA should apply retroactively. In Kansas, a judicial decision will be applied retroactively unless it establishes a new rule of law, it would not further the principle on which the decision is based, and it would cause substantial hardship or injustice. In re Estate of McDowell, 245 Kan. 278, Syl. ¶ 2, 777 P.2d 826 (1989). The decision in Topeka SMSA meets all of the elements for prospective application only. This change in the law cannot apply to litigants who fail to exhaust all administrative remedies.
Contrary to the position of the Taxpayers, at the time the Director of PVD performed the central assessment, the Director had the authority to classify the Taxpayers as “public utilities.” K.S.A. 79-5a01 includes within the definition of “public utility” or “public utilities” “every individual, company, corporation, association of persons, lessees or receivers that now or hereafter are in control, manage or operate a business of . . . transporting to, from, through or in this state telephonic messages.” Consequently, the Taxpayers were arguably properly classified as “public utilities.”
The Taxpayers had the right to appeal the PVD’s valuation and assessment. Procedural due process requires a right to a fair trial in a fair tribunal. State v. Green, 245 Kan. 398, 404, 781 P.2d 678 (1989). The constitutional requirements of due process are satisfied where the taxpayer, at some stage of the assessment procedures, has an opportunity to appear and contest the assessment. Shields Oil Producers, Inc. v. County of Russell, 229 Kan. 579, 582, 629 P.2d 152 (1981). It is well settled law that a public utility’s right to appeal its assessment is governed by K.S.A. 79-5a05 and K.S.A. 74-2438. See Board of Meade County Comm’rs v. State Director of Property Valuation, 18 Kan. App. 2d 719, Syl. ¶ 2, 861 P.2d 1348, rev. denied 253 Kan. 856 (1993) (K.S.A. 79-5a01 et seq. expressly mandates that the valuation and assessment of public utility property is to be performed by the Division of Property Valuation.).
K.S.A. 79-5a05 permits a public utility to object to the statement of appraised valuation. If the objections by the public utility are declined, K.S.A. 1998 Supp. 74-2438 provides for an appeal to BOTA:
“An appeal may be taken to the state board of tax appeals from any finding, ruling, order, decision, final determination or other final action, including action relating to abatement or reduction of penalty and interest, on any case of the secretary of revenue or the secretary’s designee by any person aggrieved thereby. Notice of such appeal shall be filed with the secretary of the board within 30 days after such finding, ruling, order, decision, final determination or other action on a case, and a copy served upon the secretary of revenue or the secretary’s designee.”
This court in Colorado Interstate Gas Co. v Beshears, 18 Kan. App. 2d 814, 860 P.2d 56 (1993), rev. denied 256 Kan. 994 (1994), addressed a case where a public utility failed to appeal the valuation assessed by the PVD. The public utility argued that K.S.A. 79-1702 was available to state-assessed public utilities for collateral challenges to the PVD implementation of the ad valorem tax on state-assessed public utilities. K.S.A. 79-1702 provides a remedy for grievances not otherwise remediable:
“If any taxpayer or any municipality or taxing district shall have a grievance not remediable under the provisions of K.S.A. 79-1701 or 79-1701a, and amendments thereto, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state board of tax appeals and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax, if uncollected, together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected and interest at the rate prescribed by K.S.A. 79-2968, and amendments thereto, minus two percentage points.
“Errors committed in the valuation and assessment process that are not specifically enumerated in K.S.A. 79-1701, and amendments thereto, shall be remediable only under the provisions of K.S .A. 79-2005, and amendments thereto.”
The Colorado Interstate Gas court disagreed with the public utility’s argument under K.S.A. 79-1702. The court held: “K.S.A. 79-1702 is not available to a state assessed public utility for a collateral challenge to the Director of Property Valuation’s assessment and valuation of property. K.S.A. 74-2438 is the exclusive method for a public utility to challenge the Director of Property Valuation’s assessment and valuation of property.” 18 Kan. App. 2d 814, Syl. ¶ 2. The Colorado Interstate Gas court affirmed BOTA’s order denying subject matter jurisdiction to entertain the appeal under K.S.A. 79-1702. However, the court reversed on the limited question of whether Colorado Interstate Gas presented a colorable constitutional claim. 18 Kan. App. 2d at 822.
Pursuant to Colorado Interstate Gas and K.S.A. 74-2438, the method and authority for the Taxpayers in the present case to appeal their classification as a public utility was established. However, it was not utilized by the Taxpayers — they failed to appeal. The Taxpayers claim a good faith rationale for their inactivity. They maintain they should not be penalized for complying with the orders of the PVD in subjecting themselves to state assessment and that they acted in good faith and followed what they believed was a lawful order of the PVD. They suggest the PVD’s misinterpretation and misapplication of the tax statutes should not foreclose avenues of relief after the law has been clarified by the Kansas Supreme Court.
The Taxpayers concede that Colorado Interstate Gas and K.S.A. 74-2438 does not provide authority for this appeal and argue that such appeal under this authority would have been futile because the law is clear that K.S.A. 74-2438 is the exclusive remedy for public utilities, not radio common carriers, to challenge the PVD’s assessment and valuation of property. The Taxpayers argue they were “effectively but erroneously told by the DPV that they were public utilities and would be taxed as such.” The Taxpayers suggest they are justified in relying on the PVD’s classification since “[i]t is presumed that a public official will faithfully perform the duties legally enjoined upon him.” Quivira Falls Community Ass'n v. Johnson County, 230 Kan. 350, Syl. ¶ 4, 634 P.2d 1115 (1981). The Taxpayers maintain their reliance should not be used to their detriment by holding that the exclusive remedy was pursuant to K.S.A. 74-2438 when they were not and have never been a public utility according to Topeka SMSA.
The problem with retroactively applying Topeka SMSA to the Taxpayers’ 1994 and 1995 taxes is that the Taxpayers were not parties to the Topeka SMSA action. They paid their taxes without any protest or objection. Now, the Taxpayers attempt to ride the coattails of another cellular telephone company, in the very same predicament, that successfully appealed its classification as a public utility utilizing K.S.A. 74-2438 for appellate authority. The difficulty in the Taxpayer’s argument is that Topeka SMSA successfully appealed its classification as a public utility using the appellate avenue that the Taxpayers suggest would have been futile. Similarly, appellee Ellsworth County states: “Just because the protesting taxpayer in Topeka SMSA, . . . was astute enough to protest [its] initial classification as a public utility’ (and [eventually] prevail) does not mean that all similarly situated taxpayers should benefit from Topeka SMSA’s initiative.”
It is well settled law in Kansas that a party challenging an administrative order must exhaust all administrative remedies before seeking judicial review of the agency action. Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which our review is plenary or unlimited. See Board of Sedgwick County Comm’rs v. Action Rent To Own, Inc., 266 Kan. 293, 296, 969 P.2d 844 (1998); Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, Syl. ¶ 6, 958 P.2d 1162 (1998).
The doctrine of exhaustion of administrative remedies applies to tax matters. In State ex rel. Smith v. Miller, 239 Kan. 187, 718 P.2d 1298 (1986), the court held:
“The well-recognized rule in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts.” Syl. ¶ 1.
“A party aggrieved by an administrative ruling is not free to pick and choose a procedure in an action in the district court in order to avoid the necessity of pursuing his remedy through administrative channels.” Syl. ¶ 2.
In Dean v. State, 250 Kan. 417, 421, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992), the court stated:
“In the realm of taxes, matters of assessment, exemption, equalization, and valuation are administrative in character. See Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591 (1902). Under Kansas law, it would be unwarranted for a court to entertain a tax suit on any of these matters of administrative expertise where administrative remedies had not been pursued.”
The Taxpayers argue their grievance is remedial pursuant to the plain meaning of K.S.A. 79-1702. The same argument was rejected in Colorado Interstate Gas. There, the court held, “[i]n order for BOTA to have jurisdiction under K.S.A. 79-1702, the grievance must not be remediable under K.S.A. 79-1701 (clerical errors) or K.S.A. 1992 Supp. 79-2005 (errors in valuation and assessment not specifically listed in 79-1701).” 18 Kan. App. 2d at 818-19. Here, the Taxpayers raise a similar argument that the remedies under either K.S.A. 79-1701 and K.S.A. 79-2005 are not available and BOTA has jurisdiction under K.S.A. 79-1702. First, this case does not involve clerical errors. Second, K.S.A. 79-2005(o) provides that the statute “shall not apply to the valuation and assessment of property assessed by the [PVD].” As occurred in Colorado Interstate Gas, the lack of remedies under K.S.A. 79-1702 must not be the result of a party’s failure to utilize proper existing remedies under the taxing code.
In a passing argument, the Taxpayers argue the State should be estopped from asserting the Taxpayers’ exclusive remedy was K.S.A. 74-2438. They suggest all the elements of estoppel of a governmental agency are met based on their reliance on the PVD’s classification. The appellees contend the Taxpayers’ estoppel argument is without merit.
Both parties cite Allen v. United States, 630 F. Supp. 367, 371 (D. Kan. 1984), for authority on governmental estoppel. In Allen, the plaintiff taxpayer argued the IRS, among several other defendants, committed numerous wrongs against him in connection with the assessment and collection of back taxes. The court stated that the plaintiff must prove the traditional elements of estoppel in order to sustain the claim that the United States was estopped from litigating the taxes at issue. The court relied on the following elements of estoppel:
“(1) The party to be estopped must know the facts; (2) he must intend that his cc iduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.” 630 F.Supp. at 371.
The Taxpayers simply do not meet the elements of estoppel set forth in Allen. The Taxpayers make no claim the PVD valued any cellular telephone companies as radio common carriers in 1994 and 1995. Furthermore, there is no evidence disputing the fact that during 1994 and 1995, the PVD valued all cellular telephone companies as public utilities pursuant to K.S.A. 79-5a01. Additionally, there are no allegations of bad faith by the PVD. Since Topeka SMSA was decided in 1996, there was no way for the PVD to know in 1994 and 1995 that cellular telephone companies would later be deemed “radio common carriers” by the Kansas Supreme Court. We also note the Taxpayers do not dispute the district court’s finding that the Taxpayers were aware of the pending appeal in Topeka SMSA and the body of case law setting out the exclusive remedy for relief from valuation as a public utility, but yet failed to pursue any appeal. Last, the fact that K.S.A. 74-2438 provides a clear and certain remedy for complete and adequate relief is demonstrated by the result in the Topeka SMSA case.
We find the district court did not err in affirming BOTA’s decision that it lacked subject matter jurisdiction to consider the Taxpayers’ appeal. BOTA did not erroneously interpret the law, and for the aforementioned reasons, its decision was not unreasonable, arbitrary, or capricious. The Taxpayers are simply attempting to seek tax relief after failing to timely exhaust their administrative remedies.
Alternatively, the Taxpayers contend that if this court finds that BOTA did not have subject matter jurisdiction, we could still exercise jurisdiction to decide the case on constitutional grounds, specifically under Article 11, § 1 of the Kansas Constitution requiring uniform and equal taxation for members of the same class. The Taxpayers contend due process and equal protection require Topeka SMSA to apply retrospectively to allow their property to be locally assessed to permit equal treatment for taxation purposes with other radio common carriers.
The Taxpayers recognize the exhaustion of administrative remedies doctrine, but cite Colorado Interstate Gas for the court’s discussion of how “the ultimate power to determine the constitutionality of any agency action rests with the courts.” 18 Kan. App. 2d at 821. The Taxpayers claim the PVD’s misclassification of them as “public utilities” is a violation of the Kansas Constitution, which gives this court jurisdiction to grant the requested relief.
Appellees cite Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 930 P. 2d 1 (1996), cert. denied 520 U.S. 1229 (1997), where the court used the reasonable basis test to uphold taxing married couples at a lower rate than single individuals. “The rational basis standard (sometimes referred to as the reasonable basis test) applies to laws which result in some economic inequality. Under this standard, a law is constitutional, despite some unequal classification of citizens, if the classification bears a reasonable relationship to a valid legislative objective.” 261 Kan. 239, Syl. ¶ 4.
In Dean v. State, 250 Kan. 417, the court considered a taxpayer’s claim for a refund of vehicle taxes as a result of an improperly used county average rate. The taxpayers did not timely object to or protest the taxes. The Dean court found the taxpayer’s claim for recovery of motor vehicle registration tax was an attempt to seek tax relief without first complying with K.S.A. 1991 Supp. 79-2005 and K.S.A. 1991 Supp. 74-2426. The court dismissed the case for lack of subject matter jurisdiction since the taxpayers failed to exhaust administrative remedies. 250 Kan. at 427.
The ultimate question is whether it is constitutionally permissible to collect taxes at a lower rate from taxpayers who successfully challenge their tax classification but at the same time collect taxes at a higher rate from entities who chose not to challenge their classification. Applying the reasonable basis test to the case at bar, we recognize our holding retroactively creates some unequal classification of citizens for tax purposes, but our holding bears a reasonable relationship to a valid legislative objective of timely execution of tax appeals through clear and remedial statutes enacted by the Kansas Legislature.
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Allegrucci, J.:
The Kansas Department of Social and Rehabilitation Services (SRS), as assignee of respondent Curtis Stremel’s child support rights, appeals from the district court’s order granting petitioner Brenda Benoit’s motion to reduce child support.
When Stremel and Benoit were divorced in 1988, Benoit had primary residential custody of their three children, and Stremel was ordered to pay child support. In March 1995, residential custody shifted to Stremel, and Benoit was ordered to pay $405 per month in support. The Multiple Family Adjustment was used in calculating Benoit’s support obligation. Thereafter, SRS filed an accusation and contempt against Benoit for failure to pay the child support as ordered. Benoit filed a motion to modify child support. At the hearing on her motion for modification, Benoit testified that at the end of the 1995 school term she had resigned from her employment as a school psychologist in order to avoid being terminated. Unsuccessful at finding other employment, Benoit was starting up a wallpapering business.
In the journal entry, which was filed in July 1998, the district judge ordered that Benoit should continue to be given the Multiple Family Adjustment. He calculated child support due through December 1996. He set her child support obligation at $61 per month from January 1997 on “unless Petitioner’s income exceeds $823 per month.” In order to track her monthly income, the district court ordered Benoit to provide quarterly statements of her expenses and income to Stremel and SRS. On appeal, SRS contends that the district court should not have given Benoit the Multiple Family Adjustment, set the child support payments too low for her education and professional experience, and erred in ordering that her child support obligation was subject to quarterly recalculation.
Before we consider the merits of SRS’s arguments, we need to address Benoit’s argument that the appeal is untimely in that it became the law of the case several years ago when first applied by the district court and not appealed by Stremel (or SRS). This argument does not take into account the potential for changes in circumstances and fails to recognize the district court’s continuing jurisdiction where there is a change in circumstances. Moreover, it fails to take into account the possibility that at the time the adjustment was first applied by the district court, there was no error that would have supported an appeal. Sound judicial policy does not require a party to prosecute a meritless appeal in order to protect itself from future misapplication of a legal principle to different facts. SRS’s appeal is timely.
SRS first argues that the trial court erred in continuing to apply the Multiple Family Adjustment to determine Benoit’s child support obligation. Section II.L. of the 1998 Kansas Child Support Guidelines, Supreme Court Administrative Order No. 128 (1999 Kan. Ct. R. Annot. 91), provides that the noncustodial parent’s child support obligation may be adjusted when he or she has legal financial responsibility for the support of children who reside with him or her in addition to legal financial responsibility for the children shared with the custodial parent. Subsection F of Section IV, the general instructions for preparing the support worksheet, provides that “[t]he Multiple-Family Adjustment may only be used by a noncustodial parent when an increase in support is sought by the custodial parent.” (1999 Kan. Ct. R. Annot. 97.) Here Benoit, the noncustodial parent, was seeking a reduction.
The district court had reviewed and revised the child support of Stremel and Benoit several times before entering the order appealed from here. In March 1995, the district court had determined that Benoit’s support obligation should be adjusted by application of the Multiple Family Adjustment. On the present occasion, the district court concluded that Benoit should continue to receive the benefit of the Multiple Family Adjustment. On appeal, SRS contends that the Guidelines provide clearly and unambiguously that the Multiple Family Adjustment is not available to Benoit when she is seeking a reduction in her support obligation.
SRS contends that the court’s review consists of interpreting the Guidelines and, therefore, is unlimited. Benoit would have the court apply an abuse of discretion standard of review on the ground that the Guidelines do not cover the factual situation and, therefore, do not limit the authority of the court. In In re Marriage of McNeely, 15 Kan. App. 2d 762, 769, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991), the court stated: “We are persuaded that, where a case falls factually outside the child support guidelines, those guidelines do not limit the authority of the court. Under such circumstances, our review is strictly one of abuse of discretion.”
SRS contends that the Guidelines’ precluding application of the Multiple Family Adjustment in the circumstances of the present case is the necessary corollary to the Guidelines’ Section IV.F.’s restricting application of the adjustment to circumstances not present here. On this question of whether the Guidelines cover the circumstances of the present case, however, we find the court’s reasoning in State ex rel. Secretary of SRS v. Huffman, 22 Kan. App. 2d 577, 920 P.2d 965 (1996), persuasive. In Huffman, SRS appealed from the initial child support order against Huffman and argued that the district court erroneously applied the Multiple Family Adjustment because the custodial parent was seeking child support, not an increase in child support. The court stated:
“Under tire Kansas Child Support Guidelines, if the multiple family adjustment may only be used by a noncustodial parent when an increase in existing support is sought by the custodial parent, then the guidelines fail to address a situation when support is not established until after the noncustodial parent has other children in his or her care.” 22 Kan. App. 2d 577, Syl. ¶ 3.
By the same reasoning, the Guidelines fail to address a situation when support is previously established using the Multiple Family Adjustment. In Huffman, the court concluded:
“When a case is not controlled by the Kansas Child Support Guidelines, the guidelines do not limit the authority of the court. Consequently, a trial court does not abuse its discretion if it uses the multiple family adjustment in the guidelines to establish an initial support order against a noncustodial parent.” 22 Kan. App. 2d 577, Syl. ¶ 4.
As we noted in Huffman, to restrict the use of the Multiple Family Adjustment only when increasing an existing order is illogical and inequitable. When the Guidelines do not control, the district court has discretion in using the Multiple Family Adjustment to establish the support obligation of the noncustodial parent.
In the present case, where the Guidelines do not limit the authority of the district court, sound reasons support continuing application of the Multiple Family Adjustment unless and until cause why it should be discontinued is shown. Courts have continuing jurisdiction to modify child support orders when circumstances change. If the circumstances warranting the previously applied Multiple Family Adjustment are not among those that have changed, the district court need not eliminate it when the modification sought is not an increase by the custodial parent. In the present case there has been no showing that the district court’s action was arbitrary or unreasonable, and, therefore, it cannot be said that it was an abuse of judicial discretion.
SRS next argues that the district court abused its discretion in setting the child support payments too low for Benoit’s education and professional experience. At the heart of SRS’s position is its contention that Benoit voluntarily quit her job as a school psychologist. According to Benoit’s testimony on her motion to reduce child support, she was given the opportunity to resign rather than not having her employment contract renewed and she took that opportunity. She further testified that she resigned in the belief that it would be the less detrimental alternative for the purpose of finding employment in another school district. She had been unsuccessful in securing a school psychologist position with another district. She also unsuccessfully applied for jobs outside her field of education and experience. As a result of her failure to find other employment, Benoit was starting up a wallpapering business. There was no evidence to the contrary. In these circumstances, there has been no showing that the decision of the district court was arbitrary or unreasonable.
Finally, SRS objects to the trial court’s ordering quarterly recalculations. Due to the state of uncertainty and flux in Benoit’s income, the district court ordered that her child support obligation was subject to quarterly recalculation. SRS objects to the lack of constancy and contends that it is an abuse of the district court’s discretion to provide for quarterly re-examination of her financial condition. The district court’s order in this respect was crafted to fit the circumstances and may benefit the children by resulting in increased support should her new business thrive or her financial condition prosper. We find no abuse of discretion.
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Brazil, C.J.:
Horizon Building Corporation (Horizon) appeals the trial court’s summary dismissal of its third-party claim against The Holland Corporation, Inc. (Holland). We affirm.
Horizon was building a housing development. On September 27, 1983, Horizon contracted with Holland to grade the land in preparation for building. Holland began work by October 6,1983. Holland completed work on December 14, 1984. The Schaefers’ home was completed in August 1985, and the Schaefers purchased the home on May 30, 1986.
Over time,, the Schaefers noticed problems with settling in the structure. Terracon Consultants, a geotechnical consulting firm, analyzed the soil and found the house rested on fill. On February 6, 1992, Terracon reported: “The constituents within the fill strongly suggest that the fill may not have been placed as engineered fill. Fill which is not satisfactorily compacted will usually settle over a period of time.” The report recommended extensive remedial work be done to the foundation of the house.
On September 23,1993, the Schaefers filed suit against Horizon, Horizon’s joint developer, and “John Doe,” the subcontractor allegedly responsible for constructing the foundation. The Schaefers alleged negligence against all defendants. The Schaefers never served Holland and did not amend their petition to name Holland as a defendant.
Horizon moved for summary judgment, arguing the period of limitations had expired for tort claims. The trial court agreed. The Court of Appeals reversed and remanded, holding reasonable minds could differ on when the Schaefers knew or could have reasonably ascertained they had suffered substantial injury arising from Horizon’s alleged negligence. Schaefer v. Horizon Bldg. Corp., No. 75,241, unpublished opinion filed February 28, 1997.
On March 25, 1994, Horizon filed a third-party claim against Holland, alleging negligence and breach of contract and asserting rights of express or implied contractual indemnity or comparative implied indemnity. Holland moved for summary judgment on Horizon’s claim, arguing the statute of limitations for direct claims by the Schaefers against Holland had lapsed, resulting in no valid cause of action for contribution against Holland. In response, Horizon stressed it was seeking indemnity rather than contribution. As a result, Horizon argued, the expiration of the period of limitations on the original plaintiffs’ cause of action did not cut off Horizon’s equitable indemnity claims against Holland.
The trial court granted Holland’s summary judgment motion. The court rejected Horizon’s claims of express and implied contractual indemnity. For the purpose of ruling on the summary judgment motion, the court found the Schaefers’ cause of action accrued on February 6, 1992. The court held, as a threshold matter, that Horizon had asserted a valid comparative implied indemnity claim, under Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 9, 618 P.2d 788 (1980). Finally, the trial court found Horizon’s period to file its comparative implied indemnity claim lapsed when the statute of limitations on the Schaefers’ negligence claim expired. The court dismissed Horizon’s third-party claim against Holland. Horizon appeals.
Before the court ruled on the motion, Horizon settled with the Schaefers for $46,000. The Schaefers agreed to release their claims against all parties. Horizon’s third-party claim for indemnity against Holland for all or part of this settlement is the subject of Horizon’s appeal. Horizon does not contest the trial court’s rejection of its claims for express and implied contractual indemnity. The issues only concern Horizon’s claim for comparative implied indemnity.
“Comparative implied indemnity” is an equitable remedy available to a single defendant, among a number of tortfeasors, who by settling with the plaintiff or paying a judgment, pays the other tortfeasors’ share of liability. The trial court dismissed Horizon’s third-party claim based on Horizon’s failure to file before the statute of limitations had expired on the Schaefers’ original cause of action. We agree the period of limitations began to run on plaintiffs’ original cause of action by February 6, 1992.
For the purposes of summary judgment, the trial court also found Horizon held a valid claim for comparative implied indemnity based on broad language in Kennedy, 228 Kan. 439, Syl. ¶ 9. Teepak, Inc. v. Learned, 237 Kan. 320, 328, 699 P.2d 35 (1985), disapproved this language and held Kennedy sharply to its facts.
We disagree with the trial court and find as a matter of law Horizon held no valid claim for comparative implied indemnity against Holland. At the time Horizon filed its third-party claim and subsequently settled with the Schaefers, Holland was neither a named party nor at risk of suit because the statute of limitations on the plaintiffs’ underlying cause of action had expired. As a result, Holland was not exposed to liability, and Horizon has not shown that any portion of its settlement expense is attributable to Holland. See Teepak, 237 Kan. at 328. Further, Horizon has refused to explain why joinder under K.S.A. 60-258a was not available, which would have protected Horizon without exposing Holland to more liability than it faced in the original action.
The statute of limitations issue discussed in Reeve v. Union Pacific R. Co., 790 F. Supp. 1074 (D. Kan. 1992), which the trial court found dispositive in this case, does not apply. The Reeve court had previously dismissed the plaintiffs direct claim against defendant Jefferson for jurisdictional reasons. The primary defendant, Union Pacific, could therefore show for the purposes of summary judgment that it was at risk of paying Jefferson’s share of liability, absent contribution or comparative implied indemnity. Reeve, 790 F. Supp at 1075-76. The issue became at what time Union Pacific was required to file its comparative indemnity claim as a matter of procedure. In contrast, Horizon has no indemnity claim because the expiration of plaintiffs’ statute of limitations rendered any claim worthless as a matter of logic, not because Horizon’s own procedural statute of limitations had expired.
The district court’s reasons for its decision are immaterial if the ruling was correct for any reason. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 848, 863 P.2d 364 (1993). We affirm based on Horizon’s failure to show it had paid any damages on behalf of Holland. This is contrary to the district court’s holding on this issue, but results in a correct outcome. It is therefore unnecessary for us to determine whether, in a case where a defendant has paid damages on behalf of another but does not have the benefit of joinder, the period to file an equitable implied indemnity claim is keyed to the statute of limitations on the plaintiff s underlying claim.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the breach of a contract to marry. The judgment of the court below was for the defendant, and the plaintiff brings the case to court. There were only two exceptions taken by the plaintiff to the rulings of the court below. The first was to the sustaining of a motion of the defendant for judgment on the special findings of the jury; the second was to the overruling of a motion of the plaintiff for a new trial. The jury found a general verdict, and also special findings of facts. The general verdict was for the plaintiff, but the court construed the special findings of fact to be inconsistent therewith — to be for the defendant — ■ and therefor rendered judgment for the defendant. Of this, and this only, the plaintiff complains.
If the special findings and the verdict were inconsistent with each other, then the action of the court was unquestionably correct; (Gen. Stat., 684, § 287;) ^ J ' ’ ’ 1 and this is the only question for us to consider, special findings, supposed to be inconsistent with the general verdict read as follows:
“ 7. Was the contract between plaintiff and defendant (if any was made,) to be performed within one year from the date of the making of the same ? No.
“ 8. Was the contract between the plaintiff and defendant, (if any was made,) to be performed at some remote and uncertain time ? Yes.
“ 9. Was the contract, (if any,) between the parties in writing ? No.”
From these special findings, the court below construed that this contract was not to be performed until after more than one year had elapsed, and therefore, as it was not in writing, that it was not' binding upon the parties; that it came within the fifth section, (now sixth section,) of the statute of frauds, which provides that “ No action shall be brought whereby to charge the defendant, upon any agreement that is not to be performed within the sPaee °f one year from the making thereof, unless the agreement upon which such action shall he brought, or some memorandum or note thereof, shall be in writing.” (Comp. Laws, 569; Gen. Stat., 505.) The counsel for plaintiff claims that from these findings the contract ought to be construed as •simply a contract to marry, without fixing any definite or precise time for the marriage to take place; that while the contract did not require that the marriage should fake place within one year, yet, that it did not require that it should be postponed beyond a year. It must be ■conceded that the construction put upon these findings, and upon the contract, by the court below, is the most ■natural construction from the language used. Besides, ■nearly all the circumstances of the case tend to corroborate and strengthen the construction given to said contract and findings by the court. "Why were the jury required to make these findings if it was not to raise the question of the validity of this contract under the statute of frauds ? Gould it be from idle curiosity alone ? Bid not the jury know why they were required to make such findings ? If the construction claimed by counsel for plaintiff is correct, then it was folly to require the jury to make these findings, for in that case they could answer no purpose whatever. The question of whether this contract came within the statute of frauds, seems to have been one of the principal questions litigated in the case. Probably a great portion of the evidence was introduced and arguments of counsel below was made with reference to this question. But as neither the evidence nor arguments of counsel have been brought to this court, we cannot determine what light they threw upon this question. The court below therefore had a much better opportunity of knowing in what light these findings were viewed by the jury than we have. And if the jury viewed them in the same light that the court did, it would be proper for us to give them the same construction, even if literally construed they should bear another and different construction.
But suppose the construction of plaintiff’s counsel to-be correct, then is the plaintiff in any better condition ?' This contract was made in the year 1860; this action was brought in the year 1869. -Now, nine years thereafter, if the contract was to be performed within one year, then the action was barred by the statute of limitations long before this action was brought. If the contract was not to be performed within one year and not in writing, then it was void under the statute of frauds. (Derby v. Phelps, 2 N. H. 515.) And if.the contract was made without fixing any definite time for its performance, leaving it to be performed within a year, or beyond a year, as the parties should afterwards agree, then it was a contract to marry within a reasonable time. (Pattee v. Deboss, 1 Starkie, 82; 1 Pars. Cont., 4th ed., 547, 548.) A reasonable time would probably not, under any circumstances, exceed one year; for it would seem to be very unreasonable that any one should be tied up by a. contract to marry more than one year, unless both parties should expressly consent thereto. After a reasonable time should elapse, the statute of limitations would commence to run; and in this case the action of the plaintiff" would have been barred long before she commenced the suit.
The counsel for plaintiff seems to have labored under' great difficulty in drawing the petition in the court below to steer clear of both the statute of limitations, and the-statute of frauds. "Whether they did steer clear of them or not, may be questionable; but we do not desire to- examine that subject, and therefore shall express no opinion thereon. The counsel probably found greater • difficulties when they came to the evidence in steering clear of both these statutes than they did in framing the petition. "When they reached the evidence, they probably steered clear of the statute of limitations, but foundered on the statute of frauds. The evidence probably showed that the contract was to be performed at some • remote and uncertain period of time greater than, and not within a year.
If the evidence had shown that the plaintiff had a cause ■ of action at all, the court below would undoubtedly under the circumstances have granted her a • new trial. Or if the court had refused to do so, under such circumstances, and in such a case, the plaintiff would undoubtedly have brought all the evidence to this court, and thereby have shown that the court be- • low had abused its discretion by not granting a new trial under such circumstances. "With all the evidence this • court could act more intelligently than it can without the evidence. But even then our means of interpreting the language of the jury would not be as good as the means ■ possessed by the court below. The supreme court will always give the same construction to the findings and verdict of a jury that the court below has done, unless ■ such construction clearly appears to be erroneous. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The petition below, and the evidence used on the hearing of the motion for a temporary injunction show, or tend to show, that the taxing officers of Bourbon county assessed a tax against the “Western Union Telegraph Company,” on a certain telegraph line running through said county, which did not in fact belong to the said Telegraph Company, but did belong to the plaintiffs; that a warrant was issued by the treasurer of said county against the goods and chattels of the said Telegraph Company, and that the said defendant, as sheriff' of said county, threatened to levy the said warrant on the said telegraph line of the said plaintiffs.
Two questions arise in this case: First, Can the Mo. River, Ft. Scott § Gulf R. R. Co. maintain an action to restrain the collection of an illegal tax assessed agajns^ u Western Union Telegraph Co.? ” Or in other words, can A, against whom no illegal tax has been assessed, maintain an action against the officers of Bourbon county because they have assessed an illegal tax against B ? "We answer this question in the negative ; and without any comment, proceed to the next question. Second: Will an injunction be granted to restrain an officer from levying a tax warrant on the plaintiffs’’ property when the said warrant does not purport to give to the said officer any authority or color of authority to make such levy ? Or, in other words, will injunction lie to restrain the commission of a pure, naked, and eimple trespass ? We must also answer this question in the negative. The said warrant was not against the Bailroad Company, nor against their property, nor against any specific property belonging to any one; but it was simply against the “ Western Union Telegraph Company,” and against the goods and chattels of said Telegraph Company only. Under the warrant the sheriff had the right to levy on any goods and chattels of the said Telegraph Company, but on no other property, nor on the property, of any other person, company, or corporation. If the sheriff" should levy on the property of the railroad company, the railroad company would of course have a cause of action against the sheriff in replevin or for damages, in the nature of an action of trover, or of trespass de bonis asporiaiis ; but they cannot have an injunction to restrain the anticipated trespass. We are not aware that any pure, simple and naked trespass has ever been restrained by injunction. ■ ■
The order and judgment of the court below must therefore be affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiffs in error were plaintiffs below. The cause was tried by the court, and judgment awarded plaintiffs, and on motion of defendants a nexo • trial was granted. To reverse the order granting a new trial the plaintiffs bring the cause to this court.
The only ground relied upon in this court to sustain the order of the court below, is surprise, the other alleged causes being abandoned. The surprise consisted in this: Peter "W. Deitseh was the defendant chiefly interested in the result of the trial. He had bought the land in controversy. It was a vital point in the case, whether he knew of plaintiffs’ equitable claim thereto, before he purchased. In other words, whether he was an innocent purchaser, without notice. On the trial one Peck testified that Deitseh came to him and asked him if he knew what claim Coleman Eagan’s heirs had to the land, whereupon the witness told Deitseh that they had a claim to the land, and explained how their claim arose, giving the grounds on which the court decided the cause. This conversation purported to have taken place before Deitseh bought the land, and of course brought home to him the knowledge of the equitable claim of plaintiffs in the land; and it was the only testimony that certainly and definitely did bring this knowledge to him before he purchased. In his motion for a new trial, Deitseh made an affidavit which among many other things stated that he was sick, and unable to attend the trial, and that he could not and did not anticipate the testimony of Peck; that to the best of his knowledge he never knew Peck prior to the date of his purchase, and did not have any such conversation with him as Peck testified to, and that such testimony was a surprise to him which ordinary prudence could not have guarded against, and that he will be able to show upon another trial that he had no knowledge of plaintiffs’ claim. On this affidavit the court below granted a new trial, and this court will not reverse the order. The judge who tried and decided the cause, saw the witness Peck when he testified, had full opportunity to observe his manner and bearing on the witness stand, and was in a better position to form a correct opinion as to the likelihood as to whether his testimony was fabricated, than this court is. The affidavit states that it was false.
It is true that Deitseh had notice by the formation of the issues of what would be attempted to be- proved against him; but he had no reason to suppose it would be done by false testimony. He might well have been willing to have his case tried in his absence on the facts. It does not follow that he was prepared for the testimony of Peck. If it was not true, he could not have anticipated it, and it was well calculated to surprise him. The court which heard all the testimony having ordered a new trial, we are satisfied that justice is not to be thwarted, nor the law perverted thereby. In cases like this no precise rule can be laid down which can always be invoked. The decision of each case must rest somewhat on the discretion of the court where the trial is had : G-ra. & "Wat. on New Trials, 1085 ; and the doing of substantial justice is ever to be kept in view; id., 1086.
We have not overlooked the case of Smith v. Lowry, 1 Johns. Ch. R., 220, referred to by the learned counsel for the plaintiff in error; and we concur with him in considering the facts very similar to the present case. But they were presented under very different circumstances. A court of law where the trial was had, had overruled the motion for a new trial, and the chancellor refers to this fact as one of great influence in determining his decision.
The order of the district court granting a new trial is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiffs brought suit in the district court of Douglas county. Summons was issued-on the 8th of September, 1870, to the sheriff’ of said county and returned with this indorsement:
“ Sheriff’s office, Douglas Co., Has. Deceived the within summons the 9th- day of Sept., 1870, at 10 o’clock a. m., and return the same Sept. 12th, 1870, non est; Nl T. Stephens accepting service for the within named Waddy Thompson, See acceptance.
“ Samuel Walker, sheriff of Douglas county.”
“I admit personal service of this summons, this 9th day of Sept,, 1870. Waddy Thompson, per N. T. Stephens, att’y.”
At the same date summons was also issued to the sheriff of Franklin county, and returned duly served on defendant Fuller. Oct. 11th, 1870, an answer was filed for Waddy Thompson by N. T. Stephens, his attorney. On Nov. 14th, 1870, the defendant, Fuller, by his attorneys, appearing for the purpose of the motion only, moved the court to “ set aside and hold for naught the “ service of summons heretofore made upon him the said “ Fuller, for the reason that said summons was illegally “ and improperly issued and sepved, and is void and of “ no effect in this, to-wit: That this action is brought in “ Douglas county, and the defendant Fuller resides in “Franklin county, and service of said summons was “ made upon him in said Franklin county : That the said “ Thompson, his co-defendant was not at the time of the “issuance of said summon a resident of said Douglas “ county, nor has he been summoned therein: That at “ the time of the issuance of said summons, no service of “ any kind had been made upon the said Thompson, nor “had any legal acceptance or waiver of service been “ made in behalf of said Thompson.” On the same day he filed in like manner a motion to dismiss the action on the ground of want of jurisdiction of the parties, alleging that neither of the defendants resided or had ever resided in Douglas county, nor had either of them been summoned therein. The first of these motions was sustained, the second overruled. Did the court below err in sustaining the motion to set aside the service as to Fuller ?
I. No objection is made as to the manner of service on defendant Fuller, nor to the sufficiency of the return of the sheriff of Franklin county. It is claimed that the district court of Douglas county had no jurisdiction of the parties, and that there was no authority in law for the issue .of summons to Franklin county at the time it was done. Sections 55, 60, and 67, of the code are as follows :
“ Sec. 55. Every other action must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned.”
“ Sec. 60. Where the action is rightly brought in any county, * *■ * a summons shall be issued to any other county against any one or more of the defendants at the plaintiff’s request.”
“ Sec. 67. An acknowledgement on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.”
.The return of the sheriff may be considered 'prima facie evidence that neither of Ue defendants resided in Douglas county. The defendant Fuller was not summoned in that county. Was the defendant Thompson, within the meaning of the term, aB used in section 55 ? That an attorney may take any ordinary step in a case for a party, and taking it, will be presumed to have done so by that party’s authority, is unquestioned. Entering an appearance is one of those steps. An attorney filing an answer, making a motion, or simply filing an appearance for a defendant, brings that defendant into court. If an attorney is presumed to have authority, when entering a voluntary appearance, why shall he not also be presumed to have authority when making an acknowledgement on the back of a summons ? The effect of each act is the same. By each act the party is brought into court. “ Only this, and nothing more.” This, it must be remembered, is simply a question of presumptions. Any one, not an attorney, may, if in fact authorized, enter the appearance of a party, or make acknowledgement for him on the back of a summons. The only difference is this : The attorney is presumed to have authority; one who is not an attorney must show his authority. We conclude then, in the absence of proof to the contrary, that the act of the attorney in making an acknowledgement of service on the back of the summons was authorized by the defendant Thompson.
II. The statute makes the acknowledgment equivalent to service. It is the same as though the summons had been “ served ” upon him. When a summons has been served upon a party, he has been summoned. Counsel for defendant Fuller claims that, though this may bo sufficient to give the court jurisdiction of the defendant Thompson, it cannot give the right to proceed in another county against Fuller. The letter of the statute makes no such limitation of the effect of acknowledgment of service; nor does the spirit of the statute authorize it. The policy of the law is to limit the number of the suits; to have one controversy determined in one suit, before one tribunal, no matter how many parties there be. And when one tribunal obtains jurisdiction of one of the parties defendant, it should be permitted to bring in all the others.
ITT. Again, it is claimed that Thompson and Fuller are improperly joined as defendants. The suit is on a promissory note made, a,s alleged, by Fuller, to the order of Thompson. It is alleged that Thompson by his indorsement on the back of the note transferred the same to plaintiffs, and that by reason of such indorsement he has become liable to the plaintiffs as guarantor. Judgment is prayed against Fuller as prin cipal, and Thompson as “ surety.” It is insisted that “ a note, and a guaranty written upon it, are not the same obligation,” and that it is improper to unite in one suit a cause of action against the maker with one against the guarantor of a note. Without considering what would be the rule independent of the statute, we think section 39 of the civil code determines the question: “ Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of the plaintiff.”
The order of the court below must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for false imprisonment. The judgment below was for the defendants, and the plaintiff brings the case to this court. It is seldom that a case is brought to this court that presents so many nice and difficult questions as this case does. Some of them have never been submitted to a court of last resort. Others of them have been before such courts, and the decisions upon them are conflicting. ' We have examined carefully all the questions in this case, and shall decide such of them as is necessary to dispose of the case in this court, and in the court below.
I. It is admitted by the defendants that they imprisoned the plaintiff1; but they claim tha.t the imprisonment was neither illegal nor malicious. They claim that the . plaintiff1 violated a certain ordinance (No. 2) of the city of Fort’Scott, and that he was legally arrested, tried, convicted, sentenced, and imprisoned for such violation ;. and that during all these proceedings the defendant Benjamin Files acted as,, and was, the deputy city marshal of the city of Fort Scott, and the defendant John McDonald acted as, and was, the mayor of said city; and that as said city contained more than 1,000 and less than 4,000 inhabitants, he performed all the duties of a police judge for said city. (Ch. 68, Laws of 1867, p. 126, §21.) During the time-that these proceedings were had, the city of Fort Scott was governed by the act governing cities of the second class, (Laws of 1867, eh. 68, p. 107;) and while that act provided for a city marshal it did not provide for any deputy city marshal. Could there be a deputy marshal?' John G. Harris was the city marshal; could he appoint a deputy? The statute alone did not authorize it. Did the statute, aided by the common law authorize it ?' Counsel for defendants claims, that the marshal .was authorized to appoint a deputy by the following action of the city counsel, to-wit:
“ Counsel Chamber, Apr. 10th, 1867.
“ Special Meeting. — Mayor McDonald in the chair. Present, full board. * * * On motion, the city marshal was instructed to appoint a deputy immediately.. On. motion, adjourned.
“ Approved : John McDonald, Mayor.
“Attest: John Van Fossen, City Clerk.”
■ If it was necessary for the mayor and council to act at all in the premises, it seems from the statute that it was necessary that they should-have done so by ordinancer and not otherwise. Section 2 of article 3 of said ch. 68, Laws of 1867, (page 112,) provides that, “ The cities coming under the provisions of this act, in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes in addition to the other powers granted by this act: * '* * 14.-To provide for removing officers of the city for misconduct, whose offices are created and made elective by this act; and shall have power to create any office that they may deem necessary for the good government and interest of the city.” And section seven of the same act, page 108, provides that the style of all ordinances must be: “ Be it ordained by the Mayor and Councilmen of the City of-- — .” And the mayor not only presides at all meetings of the city council, and gives the casting vote when the council are equally divided, (id., p. 109, art. 2, § 1,) but he also has power to sign or veto any ordinance passed by the city council; (id., p. 110, art. 2, §4.) If it was necessary that the office of deputy marshal should have been created by the mayor and council, was it legally created ? If the city marshal had authority from any source to appoint a deputy, was the defendant Files that deputy ? The evidence is clear and undisputed that he acted as such'. It is proved beyond all doubt that he was deputy marshal de facto; and there is no evidence tending to show that he was not deputy marshal de jure, (provided of course that the marshal had a right to appoint a deputy.) The first question is whether it was necessary that A he should be an officer de jure. ¥e think it wag^ The action was directly against him, and for an act which he had no right to do unless he was an officer de jure. He had no right to imprison the plaintiff unless he was an officer de jure. The next question is whether proof that he was an officer defacto is sufficient, in the absence of any evidence to the contrary, to show that he was an officer de jure. We think it was. (Hilliard Hem. for Torts, 389; Colton v. Beardsley, 38 Barb., 29; Briggs v. Taylor, 35 Ver., 57.) There was also the parol evidence of the marshal showing that he by an instrument in writing, appointed the ..defendant Files deputy marshal. But as the writing was not produced, nor its loss accounted for, there is some question of the competency of such parol evidence.
II. It is claimed that the plaintiff. violated a certain city ordinance. This was an ordinance “ to preserve the peace, order, and quiet of the city of Fort Scott,” and seems tó have been adopted February 16th, 1861. Had the city of Fort Scott any legal corporate existence at that time ? The'acts of 1855 (ch. 40, p. 812,) and of 1860, (Private, ch. 54, p. 114,) providing for the incorporation of the town of Fort Scott, were neither pleaded nor proved by the defendants. Are these acts of such a public nature that the courts will judicially take notice of them without proof of their existence ? We think they are. (New Portland v. New Vineyard, 16 Me., 69, 70; Gorham v. Springfield, 21 Me., 58, 60; State, ex rel., v. Lean, 9 Wis., 284, 295.) Towns and cities are not private corporations ; they are public corporations, created for the purpose of governing a portion of the people of the State who may reside within their boundaries, or may casually be there, or have property there. In chartering such corporations the State in one sense charters a portion of itself. Such corporations are simply instruments in the hands of the State made use of for the better protection of rights, the administration of justice, and the enforcement of the laws. All their powers must be exercised for the general good of the community, and not for any selfish or private purpose. Laws creating such corporations we hardly think are private laws. We think there was sufficient evidence that the people of Fort Scott organized as a corporation under these laws. But even in the absence of any evidence to the contrary, we think it ought to be presumed that they did so organize. The evidence of the existence of said ordinance was sufficient. (Oomp. Laws of 1862, p. 108, § 11: ■Gen. Stat., p. 701, § 379.) The ordinance was read from the “ book of ordinances” of said city. We think it was unnecessary to go into the proof of all the preliminary steps in passing and publishing said ordinance. The book itself of ordinances was prima fade evidence of the validity of the ordinance. If anything essential to its "validity was omitted in passing or in publishing it, it then devolved upon the plaintiff to show such invalidity.
III. It is questionable upon the evidence whether the defendant Files arrested or imprisoned the plaintiff at all prior to the said trial in the mayor’s court. But if he did, had he any right to do so'? He ma(je arrest without any warrant, and the offense was not committed in his presence. (Ch. 68, Laws of 1867, p. 126, art. 5, § 1. It must be presumed from the evidence that the plaintiff committed the offense with which he was charged, which was a breach of the peace by fighting; and it must be presumed that the defendant Files made the arrest on sufficient information. In such a case he would not at common law be liable. (1 Chitty Cr. L., 15 ; Gwynne on Sheriffs, 522 ; J3ae. Abr., Trespass, (D.,) and authorities referred to in brief of counsel for defendants.
IV. That the defendant John McDonald was mayor of Fort Scott cannot be questioned; but whether he was a judicial officer, or had the power to exercise any judicial functions, is controverted. It is claimed by counsel for plaintiff that §21 of art. 4 of said act, (Laws of 1867, P* 126,) is unconstitutional. and void. It is claimed that it attempts to confer judicial x ° power upon a ministerial officer. Or at least, it is claimed that it attempts in violation of § 1, art. 3. of the constitution, which vests all the judicial power of the State in courts, to confer-judicial power upon an officer who is not a court nor a judicial officer.- It is probably true that the mayor as mayor is not under said act a judicial officer; but when he exercises the powers and jurisdiction of the police .jipdge, as he is authorized to do under said § 21, in cities of the population of Fort Scott, he is certainly a judicial officer and a court. It is true that the statute does not in terms create him “ a court;” but it is also true that the statute does no,t in terms create the police judge a court, and we hardly suppose that counsel would claim that the police judge is not a court when exercising the powers conferred upon him by the statute. It has already been decided in this court, and we think rightly, that it is not necessary that the legislature, in order to create a court, or to confer judicial power, should first in terms create a .court: Malone v. Murphy, 2 Kas., 250; State v. Young, 3 Kas., 445. Whenever the legislature confers uppn any b.oard or officer powers which are unquestionably judicial in their nature, and when they also invest such board or officer with all the instruments and paraphernalia of a court, they undoubtedly create a court although they may not in terms say so.
V. The next question is whether the defendant John - McDonald, as mayor and ex officio police judge, had jurisdiction to hear and determine whether the Prell, had committed any'offense, jfo complaint, written or otherwise, was made before the may-or and against Prell except that the defendant Files told the mayor orally and not under oath that said Prell was charged with “ fighting and' disturbance of the peace.” Fighting?. "Where; when; with whom; with what weapons ? Did the fighting and disturbance of the peace amount to a felony, or only to a misdemeanor? Was it to be prosecuted under the laws of the State, or under the city ordinances ? And was the prosecution to be a trial for the offense, or only a preliminary examination ? The mayor, under the statutes, had power to hear and determine all offenses against the city ordinances, and all misdemeanors against the laws of the State committed within the county; and he also had power to hear all preliminary examinations for felonies against the laws of the State committed within the county, and to require that the accused be held for his appearance at the next term of the district court to answer to the charge against him. No warrant was issued against or served on Prell prior to or during the trial; and the supposed offense was not committed in the presence of either McDonald or Files. Prell was not arraigned, nor was he required to plead; and he did not plead to anything. No jury was ordered or empanneled; but neither party claimed a jury. At the trial a witness was sworn and examined. The following is a full and complete record, (so far as it was reduced to writing,) of everything that was done in the mayor’s court, or by the court, from the commencement to the conclusion of the whole transaction. The first is the whole record of the case; the second is the warrant which was issued by McDonald, and under which Prell was imprisoned by Files:
i. — transcript prom docket.
“Fort Scott,May 25,1867. — Mayor’s Court. Brought before me, Lewis Prell and A. M. Heilman, charged with the disturbance of the peace of the city by fighting. Upon hearing the case and the testimony of-witnesses, they were each found guilty and fined five dollars each and costs, .and to stand committed until paid. On refusing to pay, commitment issued to marshal.
Fine, each, $5.00........................$10.00
Marshal............................... 2.25
Judge...................................... 1.65
Witness fees..............................50 — $14.40
“John McDonald, Mayor.”.
II. — COPY OR WARRANT. ,
“ City or Fort Scott, \
'Bourbon County, Kansas, / ’
“ To the Marshal of the City aforesaidj greeting: Whereas, Heilman and Prell, of said city,'have been arrested for a disturbance and breach of the peace, by fighting in said city, and have been examined by me, John McDonald, mayor of said city, on the truth of said charge, and I was of the opinion and found that such charge was true, and thereupon ordered said Heilman and Prell each to pay the sum of five dollars and costs of suit, and to stand committed until paid, which they each refused to pay. Wherefore the State of Kansas hereby commands you to receive the said Heilman and Prell into your custody, there to remain until discharged by due course of law. Given under my hand this 25th day of May in the year 1867. John McDonald, Mayor.”
Who is the plaintiff, and who is the defendant, in these proceedings ? They have no “ title,” as proceedings of courts usually have, informing us; and while it may be-ascertained from the body of the proceedings who the-defendants are, it is difficult to ascertain who the plaintiff is. Either the State or the city may prosecute for the offense of “ disturbance of the peace of the city by fighting,” or “ disturbance and breach, of the peace by fighting in said city;” and either may do so before the mayor. The mittimus informs us that it was the State that commanded the marshal to receive said Prell into his custody; but counsel for the defendants, McDonald and Files, informs us by his argument that it was the city that prosecuted the case. It would seem however, from the brief of counsel for Prell, that he claims that under section 17, article 3 of the constitution, “ The style of all process,” whether the prosecution be by the State or by a city, “shall be ‘ The State of Kansas,’ and all prosecutions shall be carried on in the name of the State,” whether they are under the laws of the State or under city ordinances.
Had the mayor authority to hear and determine said case without any .complaint under oath, or without any written complaint of any kind whatever being r j o made or filed ? At common law, no trial for nr» , . . 1 t any oftense except contempts could ever be had except upon a written complaint. This written complaint was usually an indictment; but in certain prosecutions, called “ appeals,” it was a declaration; and in certain other prosecutions of an inferior character it was an information. (See Hawkin’s Pleas of the Crown, Attachments for Contempts, ch. 22; Appeals, chapters 23 and 24; Indictments, ch. 25; Informations, ch. 26; 4 BI. Com., Contempts, 283; Indictments, 302; Informations, 308; Appeals, 312.) Summary prosecutions and • summary convictions, except for contempts, were unknown to the common law; (4 Bl. Com., 280; Barbour’s Cr. L., 614.) In this State the common law has been adopted by statutory enactments, and every proceeding must be in exact accordance with the common law unless the common law has been expressly or by necessary and unavoidable implication dispensed with. If proceedings before police magistrates are summary proceedings, they are such only so far as the statute makes them so. They can draw nothing of a summary nature from the com mon law. Mr. Barbour in speaking of summary convictions says, that “ A conviction, to be good, must be founded on several preliminary proceedings. l.-There must be a complaint or charge against the person. * * * And it is said the only cases in which this document (the complaint) is properly dispensed with, are those in which justices are authorized to convict upon their own view.” (Barb. Grim. L., 614, 615.) Mr. Bishop says that “ There have been instances in this country of summary convictions on view, without complaint, oath, or evidence; but they are rare, and probably in most of our States the magistrate can proceed only on a written complaint, attested by the oath of the complainant.” (1 Bish. Crim. Proe., §894.) Mr. Ohitty says that “It is the duty also of the magistrate to take all charges, of whatsoever nature, kind, or complexion they may be, in writing.” (Ohitty Or. L., 34.) ■ In Archbald’s Or. Prac. and Pleadings, (page 31, note 1,) we find the following: “It is laid down by several writers, that it is the duty of the magistrate, independent of any statutory provision, to take all charges, of whatsoever kind or complexion they may be, in writing.” In the case of Allen v. Gray, 11 Conn., 95, 102, which was an action brought against a justice of the peace for trespass vi et armis, and false imprisonment, for entering a fine of $2.50 and costs against the plaintiff and causing him to he arrested on the complaint of a person who had no authority to make such a complaint, the court use this language : “ The process, then, was issued without complaint; and the only ques-ion is, whether such a process be void ? And this question would seem to be too well settled, both. on the ground of principle and authority, to admit of dispute. For although the justice had jurisdiction of the offense, and a right to issue process against the person of the plaintiff, he had no jurisdiction of this cause; an essential pre-requisite was wanting; there was no complaint. He was no judge; and the proceedings were utterly void.” The court held that the justice was liable. In the case of Tracy v. Williams, 4 Conn., 107, the court held that “A justice of the peace, after having arrested an offender against the riot act, on view, is not authorized, without a written complaint or information, to bind him over to a higher court for trial.” And, “If a justice of the peace', beforte whom an offender against the riot act, arrested on view, is brought to be further proceeded against, make an order, without a previous complaint or information in writing, requiring such offender to be recognized for trial, and on his refusal to comply with such order commit him to prison, such justice is liable in trespass for false imprisonment.” . In Maine it has been been decided that, “"Where criminal prosecutions originate upon complaint, one made under oath or affirmation is implied. This may fairly be understood as a part of the technical' meaning of the term, whenever used in a statute providing for the prosecution of an offense in that mode.” (Campbell v. Thompson, 16 Me., 117, 120.) And if the justice proceed without a complaint having been made, he renders himself liable to an action.
But let us examine our own statutes: Under section 21 of article 4 of said chap. 68, Laws of 1867, all the powers and jurisdiction of police judges are conferred upon the mayors of cities containing more than 1,000 and less than 4,000 inhabitants. And the powers'and jurisdiction of police judges are defined by said article, pages 123 'to 126. Under said article police judges have jurisdiction to hear and determine all offenses against the city ordinances; and to hear and determine all actions civil or criminal arising under the laws of the State which come within the jurisdiction of a justice of the peace; and to hear all prelijninary examinations which may be heard by a justice of the peace. Some of the sections of said article apply to actions arising under the laws of the State exclusively; some of them to actions under the city ordinances exclusively; and some of them to both kinds of actions. Sections three and eleven of said article relate more specifically to procedure. Section 3 makes provision for a complaint, and section 11 provides “That in all cases not herein specifically provided for, the progress and proceedings before the judge shall be governed by laws regulating proceedings in justices’ courts, in civil and criminal cases respectively.” It is claimed by counsel for defendants, that these two sections relate to actions arising under the laws of the State exclusively. Such will he conceded as to section three, but such cannot easily be conceded as to section 11. The words, “all cases,” in said section 11 mean all cases; and cases arising under the city ordinances are not “ specifically providing for” in any other part of the act. If said act had anywhere “ specifically provided for ” a mode of procedure for cases arising under the “ city ordinances,” why did not the counsel point it out to us? If police judges must adopt the procedure required in justices’ courts, then of course there must be a written complaint. But suppose that section II does not apply to cases arising under the city ordinances; then where does the mayor or police judge get authority for hearing cases without any complaint having been made ? "We know of no such authority, and none has been pointed out to us. It is urged by counsel that the trial before a mayor is a summary proceeding. But the statute does not in terms or by implication’ make it a summary proceeding, or at most it does not in this respect.
VI. Was the warrant under which Prell was committed of any validity ? The Christian name of Prell was omitted, and there was nothing else in said warrant by which the Prell intended, could be identified and distinguished from any other Prell that may have been in said city. Usually, and perhaps always, such a warrant is void: Arch. Cr. Pr. and PL, 126, et seq., and note 1 on page 33; 1 Chitty Cr. L., 39; 2 Hawkin’s PL Cr., 259, §103. In fact, any instrument with a like defect is void. An indictment which does not mention the Christian name, nor otherwise describe the defendant, or other person therein intended to be mentioned, is void, and may be quashed. (Barb. Cr. L., 325, 328; 1 Whart. Am. Cr. L., §§235, 236; Whart. Pree. Indict., 5, note d; id., 8, note e.) And a deed of conveyance of real estate subject to a like defect is void for uncertainty. (Coke L., 3 a; Comyn’s Dig., Pait (E 3,) Grant (A 2,) Capacity (B 4;) 3 Washb. Real Prop., p. 566; 2 Hil. Real Prop., 505, 506, § 10.)
If the proceedings of the mayor and deputy marshal were so irregular that they were void, as we think they were, then of course the mayor and deputy marshal are liable to the plaintiff for the false imprisonment although they may have acted in entire good faith. The authorities are too numerous to be cited; hence we will only refer to Bacon’s Abr., (Trespass, D. 3,) and the authorities there cited, and to Shear, and Redf. on Negligence, p. 197, §159, arid notes, and cases there cited. When an officer acts without authority, or exceeds his authority, he is liable, whether he acts maliciously or not. It is only when he acts within the scope of his authority that it is necessary that he should also act maliciously in order to make himself liable. As to the liability of officers for issuing or serving an irregular or void writ on the proper person, or on the person intended, see • the following -authorities: Scott v. Ely, 4 Wend., 555; Griswold v. Sedgwick, 6 Cow., 456; same case, 1 Wend., 126; Mead v. Hams, 7 Cow., 332; Gurnsey v. Lovell, 9 Wend., 319; Melvin v. Fisher, 8 N. H., 406; Shadgett v. Clipson, 8 East, 328; 6 Term R., 234; 1 Barn. and A., 647; 2 Camp., 270.
The judgment of the court below must be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an original proceeding in this court to remove the defendant from the office of county clerk of Wabaunsee county. Twenty causes of action are presented in the petition. We content ourselves with the examination of one. It appears from the testimony that defendant was elected to the office of county clerk of Wabaunsee county, at the general election in November, 1869 ; that he entered upon said office on the second Monday of January, 1870, that being the commencement of his term, and has ever since continued to hold the same; that prior to entering upon the duties of the office he executed an official bond, which was duly approved by the county treasurer, and took and subscribed the oath of office. It also appears that such bond and oath were not filed or deposited with the county treasurer until more than four months after he had entered upon the duties of his office. Oh. 25, Gen. Stat., p. 262, §40, concerning county clerks, provides that “ he shall, before he enters upon the duties of his office, execute and file with the treasurer of the county a bund.” The same chapter, p. 293, § 173, concerning county clerks and other county officers, provides :
“ Sec. 173. Every county officer named in this chapter shall before entering upon the duties of his office, and within twenty days after receiving official notice of his election or 'appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond as prescribed by law; and any such officer shall also within the same time, take and subscribe the oath of office prescribed by law before some officer authorized to administer oaths, and deposit the same with his official bond, to be filed and preserved therewith.”
And the same chapter, p. 294, §179, provides as follows :
“ Sec. 179. Every county office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: * *- * Sixth: His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law.”
There can be no mistake as to the meaning of these statutes. Whatever may be the rule, independent of the statute, the plain provision of the law is, that not only a refusal, but a neglect simply, to deposit the official oath and bond within the time prescribed vacates the office. We may not add to nor take from the law. It may seem a matter of trivial importance whether a bond and oath, executed and taken, are filed within twenty or thirty days. But that is a matter for the legislature to consider. They have power to establish a rule. Having established it, our plain duty is to. enforce it. And though seemingly stringent there is wisdom in the rule. The bond of a public officer should be accessible to any citizen who may be injured by the wrongful acts of such officer. Its presence in the place appointed by law for its keeping should be enforced. If this rule be relaxed, and officers permitted to occupy public offices without filing their bonds, some citizen may suffer grievous wrong, and be remediless. Judgment must be entered in favor of the State, and removing the defendant from' the office of county clerk of Wabaunsee county.
It is perhaps due to the defendant to say that neither the omission to file the oath and bond, nor the other neglects complained of appear to have been willful, but simply the results of thoughtlessness or inexperience.
All the Justices concurring. | [
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By the Court,
Kingman, C. J.:
In this case the transcript of the record shows the pleadings and the journal entries as the same remain of record and on file in the office of the clerk of the court below. It contains no bill of exceptions showing the evidence, or any part thereof. Nor do the instructions appear in any bill of exceptions, or as permitted by § 276 of the civil code. In this condition of the record there is no question made that we can decide.
The counsel for plaintiff in error claims that the instructions given and refused were entered upon the journal, and must of necessity have been signed when the judge signed the record. The instructions are copied into the transcript, but it does not appear as part of the journal entries. Plaintiff in error, on the argument of the case, asked to have the transcript sent back so that the truth may be made to appear. Although the motion is made somewhat late in the case, still we- think the order in this particular ease, under all the circumstances, should be made, if the truth (as it is claimed to be,) would then give the court sufficient grounds to examine into the case on its merits. One of the instructions given is a construction of a writing copied into and admitted by the pleadings. The propriety of the construction given to the writing can be reviewed, and its .correctness decided, if the transcript should be amended to show the facts as claimed, if such an amendment (when made) would bring the instruction in a legal form before the court. The question then is to be considered, for this purpose, as if the amendment were made, and the transcript showed that the instructions with the exceptions thereto were entered upon the journal of the court. Would such instructions and exceptions then be before this court, in any manner authorized by'law? The law points out how exceptions are to be taken and preserved. If- it be to a decision, and the decision is entered upon the record, the exception may be taken by causing to be noted on the record the exceptions: (Code, § 302.) Two things are to take place before an exception can be noted on the record, under this section. First, a decision, and second, that the decision shall appear on the record. An “ instruction ” is not a “ decision ” in any sense; much less in the sense in which it is used in this section. Therefore this section will not apply to the case under consideration.
Another way of preserving an exception is presented in the next section. The party must reduce his exception to writing; it must be signed by the judge, and “filed “ with the pleadings as a part of the record, but not spread at large upon the journals of the court.” The “instructions” form no part of the “ record” until thAy are made so in the manner above pointed out, or by the method pointed out in § 276. Neither of these ways was taken in this case to make them a part of the record. The party desiring to preserve his exceptions sought to do so, by causing „neir entry upon the journal — a proceeding as novel as it is unauthorized, being in express contravention of the object of § 303 of the code. The exceptions, then, not being preserved as required by the code, does the transcript of the journal entries, containing the instructions, and the exceptions, present a case for our action ? The law provides what shall go on the journals, which, so far as this case is concerned, are “ the proceedings of the court of each day: ” (Code, § 705.) Now, in one sense the instructions of the court are “proceedings of the court; ” so also is the evidence taken in a cause; and if one is to be taken as “proceedings,” then must the other be; and not only may they he entered on the journal, but they must be, for the language of the statute is mandatory, and either party has a right to demand, with the power to enforce the demand, that all the evidence and instructions - of the court shall be entered upon the journal. The utter absurdity of such a- construction, as well as the universal practice, has properly given to the word “proceedings,” in this section, a narrower signification, in which only the results of successive steps in the progress, of the case are noted on the journal. The instructions, then, have no proper place on the journal, because the-entry of them is not authorized by law. A copy of a, paper from a book of records, that is not by law authorized to be recorded, is of no validity; and if the transcript in this case should be amended, as desired, and the amendment should show that the instructions were spread upon the journal, it would then only be the transcript of a record not authorized by law to be made, and not of such verity as would authorize this court to act upon it. We do not wish to be technical. It is but just, and in the real spirit of the code, that every facility should be extended to allow the record to speak the truth. Nor are we disposed to cavil over the forms in which, a record is made to show the rulings of the court, if we can get at the true meaning and history of the case, without overlooking uniform precedent and positive law; but “ courts will not sanction a speculative- novelty without the war. rant of any principle, precedent, or authority,” such as is the attempt to preserve exceptions by the costly and cumbersome method of spreading instructions upon the journal in order that the exceptions to them may be noted on the record. The next step, and some clever and ingenious attorney, with rare skill to avoid labor himself at the cost of his client, ’or adversary, and forgetting the disinterested motives that characterize and usually control the profession, will have the evidence spread upon the journal, that his exceptions may appear there also. It is wiser to adhere to the simple provisions of the code, as they are usually understood and applied. If the record be amended, there will still be nothing for us to act upon; therefore the judgment below is affirmed.
Brewer, «J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an original proceeding in quo warranto, brought by .the plaintiff Roswell Norton, to determine whether himself or the defendant, Calvin H. Graham, is county treasurer of Coffey county. At the general election in November, 1869, both parties were voted for, for that office. After the election, the county commissioners canvassed the votes and declared the plaintiff to be elected to said office by a majority of one vote, and the county clerk issued to him a certificate of election. He then gave bond and took the oath of office. But the defendant contested the election. A court was organized, under the provisions of “ an act to regulate elections,” (Gen. Stat., 424, §§ 85 to 105,) for the trial of said contest, and the case was tried before said court. Everything in the organization of the court, and everything that took place during the trial seems to have been regular, except that only'two members of the court, and not three, (although all were properly notified,) met and heard the case. These two were the probate judge and one of the associates. The other associate did not meet with them. The court thus constituted heard and determined the case, and rendered a judgment declaring that said defendant, Graham, was duly elected to said office by a majority of five votes.
The first question in the case, and the only one if we determine it in the affirmative, is, whether said court was legally constituted ; that is, whether the court could be legally composed of two members only. This question we think is fully determined by the statute. Section 87 of the act already referred to provides how the court shall be constituted. It reads as follows:
“ Sec. 87. The court for the trial of contested county-elections, shall be thus constituted: The probate judge shall be the presiding officer, and he shall select two disinterested persons who shall be associated with him.”
Subdivision 4 of § 1 of “An act concerning the construction of statutes,” (Gen. Stat., 999,) gives authority to any two members of the court to act. It is as follows : “ Words giving a joint authority to three or more public “officers or other persons, shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” It will not be contended that it is “ otherwise expressed in the act giving the authority ” to the probate judge and two other persons whom he shall select, to act as a court for the trial of contested county elections; nor will it be contended that it is “otherwise expressed” in any other act.
The question then, of who is entitled to said office under said election, ’having been once tried and determined by a court of competent jurisdiction, it will hardly be contended that the same question may be again tried in an original proceeding, as this is. The question can come to this court properly, only on petition in error, after the same has been acted on in the district court. The judgment of this court is for the defendant.
All the Justices concurring. | [
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Marquardt, J.:
Lorri Riggle Bowles appeals the trial court’s decision that a Missouri child support order was modifiable and Kansas law may be applied to terminate child support. We reverse and remand with instructions for the trial court to apply Missouri law.
David W. Riggle and Lorri were residents of Missouri when they divorced in February 1985. They had two children: Brian, born in 1978, and Kevin, born in 1981. David paid child support in the amount of $150 per month for each child beginning February 1985.
Brian graduated from high school in 1996. He enrolled in 9 hours of college, but received credit for only 1 hour. He received no credit for classes taken in the spring of 1997. Kevin graduated from high school in 1999. In the fall of 1999, he enrolled in 13 hours of college courses. He also enrolled for the spring semester in 2000.
In February 1999, David filed a motion to terminate child support for Brian. Lorri filed a counter-motion to modify child support. In April 2000, the Missouri trial court found that Brian was emancipated effective January 1, 1997, because he failed to successfully complete his college course work. The trial court found that Kevin was entitled to child support through the age of 22 if he passed his classes, and ordered David to pay $391 per month for child support.
In March 2001, the Kansas trial court received a notice of registration of the April 2000 support order under the Uniform Interstate Family Support Act (UIFSA) (adopted by Kansas at K.S.A. 23-9,101 et seq.). Lorri objected to the registration. At the time of the hearing on the issue of the registration, all of the relevant parties were Kansas residents. The trial court affirmed the registration and assumed continuing, exclusive jurisdiction over the issue of child support.
When David registered the support order in Kansas, he filed a motion to modify child support, arguing that his child support obligation should end pursuant to K.S.A. 2001 Supp. 60-1610(a) because Kevin had reached the age of majority. The trial court determined that child support in the State of Missouri for a child after he or she reaches the age of 18 is modifiable pursuant to Mo. Rev. Stat. § 452.340.3(5). Accordingly, the trial court found that the procedural and substantive law of Kansas would be applied in determining the duration of support at future hearings to modify the Missouri support award.
In applying 60-1610(a)(l) to the facts of the case, the trial court determined that child support should terminate no sooner than 30 days after the filing of the motion to modify. All remaining child support orders were ordered to terminate on April 15, 2001. Lorri filed a “Motion for Relief From Judgment,” which was ultimately denied. Lorri appeals.
Timing of the Notice of Appeal
David argues that Lorri’s notice of appeal was not timely filed; therefore, this court is without jurisdiction to consider her appeal. David claims that Lorri’s notice of appeal was filed after the 30-day hmitation set by K.S.A. 2001 Supp. 60-2103(a). In the absence of a motion for extension of time or any excusable neglect, David urges this court to decline jurisdiction and award him attorney fees.
Whether jurisdiction exists is a question of law over which our scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
The right to appeal is entirely statutory and is'not contained in the United States or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). A civil appeal must be taken within 30 days from the entry of the judgment. See K.S.A. 2001 Supp. 60-2103(a).
The journal entry determining the applicable choice of law was filed on August 23, 2001. The journal entry terminating child support was filed on August 24, 2001. On September 10, 2001, Lorri filed a motion entitled “Motion for Relief From Judgment” and argued that the journal entry of August 23,2001, did not accurately reflect the trial court’s ruling. However, Lorri claims that the motion was actually a motion to alter or amend a judgment pursuant to K.S.A. 60-259(f). Motions to reconsider, as well as motions for rehearing, have often been treated as motions to alter or amend the judgment. See Honeycutt v. City of Wichita, 251 Kan. 451, 460, 836 P.2d 1128 (1992).
In Kansas, generally, the appellate courts look to the content of a motion, and not its title, to determine the relief requested. See Denno v. Denno, 12 Kan. App. 2d 499, 501, 749 P.2d 46 (1988). Accordingly, we believe that Lorri’s motion is equivalent to a motion to alter or amend the judgment. See Honeycutt, 251 Kan. at 460. A motion to alter or amend a judgment must be filed within 10 days of the entry of judgment. See K.S.A. 60-259(f).
In computing the time for filing motions, the day of the act from which the period of time begins to run shall not be included. The last day of the period is included, unless it is a Saturday, Sunday, or a legal holiday, in which case the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday. When the filing period prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. “Legal holiday” includes any day designated as a holiday by the Congress of the United States, or by the legislature of this state. K.S.A. 2001 Supp. 60-206(a).
The journal entry which determined the applicable choice of law was filed on Thursday, August 23, 2001. The time for filing a motion to alter or amend the judgment began to run on Friday, August 24, 2001. Saturday and Sunday, August 25 and 26, 2001, were not included in the 10-day calculation. August 27 through 31 were counted as the 2d through the 6th day. We do not count Saturday, September 1 and Sunday, September 2,2001, or Monday, September 3, 2001, which was Labor Day. We resume counting on Tuesday, September 4, 2001. According to our calculations, the 10th day fell on Friday, September 7, 2001.
However, when a notice is served on a party by mail, 3 days shall be added to the prescribed period. See K.S.A. 2001 Supp. 60-206(e). It appears that the relevant journal entries were mailed to Lorri. Accordingly, the time to file a motion to alter or amend the judgment would have expired on Monday, September 10, 2001. Given these calculations, Lorri’s motion was timely.
Pursuant to K.S.A. 2001 Supp. 60-2103(a), the running of the time for appeal is terminated by a timely motion made pursuant to any of the rules enumerated in the statutes. One of the rules is K.S.A. 60-259, which would include a motion to alter or amend a judgment pursuant to K.S.A. 60-259(f). Accordingly, the clock governing Lorri’s notice of appeal did not begin to run until the trial court ruled on her motion. See State v. Chiles, 260 Kan. 75, 77, 917 P.2d 866 (1996).
Lorri’s motion to reconsider was heard on October 19,2001, and the journal entry from that hearing was filed on November 1,2001. Lorri filed one notice of appeal on September 28, 2001, and an amended notice of appeal on November 19, 2001. The November 19, 2001, notice of appeal covers the August 23, 2001, and August 24, 2001, journal entries. That notice of appeal was filed within 30 days of the ruling on Lord’s motion for reconsideration; thus, it was timely.
After reviewing the applicable statutes and filing requirements for pertinent motions, we are confident that we have jurisdiction to consider the merits of Lorri’s appeal. Given this finding, David’s request for attorney fees is denied.
Choice of Law
First, Lorri questions whether a Missouri support order is modifiable under Missouri law. Second, she challenges the application of Kansas law instead of Missouri law to determine how long David must pay child support.
Resolution of this matter requires us to interpret certain provisions of the UIFSA. Interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the trial court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through tire language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions to make them consistent, harmonious, and sensible. State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
Modification of the Missouri Order
UIFSA was promulgated and intended to be used as a procedural mechanism for the establishment, modification, and enforcement of child and spousal support. UIFSA was designed to correct the problem of multiple support orders under the Uniform Reciprocal Enforcement of Support Act of 1970, K.S.A. 23-451 et seq. Gentzel v. Williams, 25 Kan. App. 2d 552, 556, 965 P.2d 855 (1998). UIFSA establishes a one-order system whereby all states are required to recognize and enforce the same obligation consistently. A priority scheme is established for the recognition and enforcement of multiple existing support obligations. Gentzel, 25 Kan. App. 2d at 557.
UIFSA addresses the ability of courts of this state to modify existing child support orders. According to K.S.A. 2001 Supp. 23-9,613:
“If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.”
When these proceedings were initiated, Lorri, Kevin, and David were all residents of Kansas. In addition, David registered the Missouri judgment in Kansas, and the Kansas trial court assumed continuing, exclusive jurisdiction over the matter.
This matter would be easy to resolve were it not for K.S.A. 2001 Supp. 23-9,611(c), which reads:
“A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for tire same obligor and child, the order that controls and must be so recognized under K.S.A. 23-9,207 and amendments thereto establishes the aspects of the support order which are nonmodifiable.”
This leads us to the question: Is the duration of David’s child support obligation modifiable under Missouri law?
In Missouri, generally, a parent’s child support obligation ends when a child reaches the age of 18. Mo. Rev. Stat. § 452.340.3(5). However, Mo. Rev. Stat. § 452.340.5 provides that if
“the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs.”
Termination of the requirement to continue to pay child support under Mo. Rev. Stat. § 452.340.5 only occurs where the trial court finds that the statutory prerequisites have not been met. See Kessinger v. Kessinger, 829 S.W.2d 658, 660 (Mo. App. 1992).
In a case where the child is not physically or mentally incapacitated, in order for child support payments to continue after the child’s 18th birthday, the trial court must find that the provisions of § 452.340.5 have been satisfied. Lyons v. Sloop, 40 S.W.3d 1, 8 (Mo. App. 2001).
The documentation that is required by § 452.340.5 provides the parent with sufficient information to determine whether the noncustodial parent is still required to support his or her child through college. Lyons, 40 S.W.3d at 7. A child’s failure to comply with the statutory requirements in one or more semesters relieves the parent of his or her obligation to provide child support during that semester; however, it does not relieve the parent of the responsibility for future payment. To the extent that a child complies with the statutory preconditions for subsequent terms or semesters, he or she remains eligible for parental support until he or she com pletes his or her college education or reaches the age of 22, whichever first occurs. Lyons, 40 S.W.3d at 8; see Lombardo v. Lombardo, 35 S.W.3d 386, 390 (Mo. App. 2000).
In interpreting the Missouri statute, we recognize that there is no case law directly on point, but we feel certain that child support may not be terminated for a child over the age of 18 provided that the child is in compliance with § 452.340.5. The language of the statute is clearly mandatory; the “parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two.” (Emphasis added.)
Choice of law issue
Lorri argues that the trial court erred by applying Kansas law in terminating David’s child support obligation. We question whether we need to address this, since under K.S.A. 2001 Supp. 23-9,611(c), Kansas may not modify David’s obligation to pay child support. However, we will examine the trial court’s choice of law decision.
UIFSA has a specific choice of law provision which reads:
“The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payment of arrearages under the order.” (Emphasis added.) K.S.A. 23-9,604(a).
General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999).
K.S.A. 23-9,604(a) clearly establishes that the duration of child support payments must be determined under the law of the issuing state. In this case, that means Missouri law must be applied to the issue of the duration of David’s child support payments.
The trial court erred when it modified the Missouri order by applying Kansas law. This case is remanded to the trial court with instructions to apply Missouri law.
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KNUDSON, J.:
David H. Spurlock appeals from jury trial convictions for rape of K.B., a child victim, and two counts of aggravated indecent liberties with K.B. The issues on appeal are: (1) Was it error to admit evidence of a prior crime committed by Spurlock; (2) was it error to admit the opinion testimony of a licensed social worker regarding the common symptoms of victims of child abuse; (3) was it error to deny the defendant’s motion for mistrial after a police officer testified before the jury that Spurlock had terminated an interview by invoking his right to counsel; and (4) was it error to admit K.B.’s testimony by closed-circuit television?
We affirm. The evidence of a prior crime was admissible independent of K.S.A. 60-455; the testimony of the social worker was not tantamount to vouching for the credibility of K.B.; the police officer’s comment on Spurlock’s post-Miranda silence was harmless error; and the trial court did not abuse its discretion in allowing K.B.’s testimony to be given by closed-circuit television.
David Spurlock lived with his wife, Jolene, in Newton, Kansas. L.B., Jolene’s ex-daughter-in-law, took K.B., her 6-year-old daughter, and K.B.’s younger brother to the Spurlock residence for occasional visits. After December 1999, L.B. took her children to the Spurlocks’ more frequently because she and her husband were working additional weekends. Spurlock was K.B.’s step-grandfather, but she was instructed to call him “Uncle David.”
While babysitting in the spring of 2000, K.B.’s great aunt and Jolene’s sister, Alma Will, noticed some changes in K.B.’s behavior. K.B. took off her clothes in front of her brother and her cousin at odd times, and K.B. kissed them all over while they were playing together. Will told Jolene about this odd behavior of K.B., and Jolene suggested Will should tell L.B.
Shortly after having a conversation with Will, L.B. also began to notice something was wrong with K.B. L.B. saw K.B. kissing the boys on the lips and playing house with her girlfriends while hugging and kissing one another. One day L.B. found K.B. and her friend in bed together under the covers without their clothes. L.B. became hysterical at first and asked K.B. whether somebody was touching her or doing something to her. K.B. started crying and said “that Uncle David had been touching her when she goes to grandma’s house.” K.B. told L.B. that “every time she [went] to grandma’s house that it happenfed].” When L.B. asked where he touched K.B., she answered, “In my privates.”
On April 2, 2000, L.B. and her husband took K.B. to an emergency room and told the nurse of K.B.’s allegations. K.B. talked to the nurse and the police at the hospital. Officer Scott Powell asked K.B. what had happened, and she answered “her Uncle David had been touching her privates” six or seven times. K.B. said that “Uncle David” and she looked at computer screens of naked women and that he had K.B. rub his private parts through his clothes and that he stuck his hands into her pants and touched her private parts. Powell asked K.B. whether Uncle David had ever put anything inside of her, and she answered no.
On the same day, L.B. took K.B. to Wichita, where she was examined by a sexual assault nurse examiner. According to the nurse’s notes, K.B. stated, “My Uncle David touches my front privates when I’m asleep. He puts his finger in there. He makes me touch him. He has girls on his computer without their shirts or panties on. He makes me look at that stuff.” On examining K.B., the nurse found no evidence of physical trauma.
Detective T. Walton interviewed K.B. on April 3, 2000. K.B. told him Spurlock touched her privates under her clothes and “he put his finger inside of her private.” Walton stated he did not use leading questions and he was unaware of the penetration issue at that time. K.B. placed an “X” on the vagina of a drawing of a girl, indicating the place where she had been touched by Spurlock. K.B. stated Spurlock told her not to tell anyone. K.B. told Walton that Spurlock had two computers in a den at the house; one was for children to play games, and the other was his own. K.B. stated Spurlock made her turn around and look at his computer screen, where she saw images of naked women.
Walton interviewed K.B. again on April 5, 2000, at the police station. Walton told K.B. that Spurlock had told him he had never touched her, and K.B. responded by saying, “Well, Uncle David’s lying.” K.B. told Walton there were times when Spurlock went to the bathroom, took off his clothes, and used a brush on his penis while he made her watch him. K.B. placed an “X” on the penis of an adult male drawing, indicating the place where Spurlock made her touch. K.B. stated she touched Spurlock with her finger and “this yellow milk would come out and get on her hands.”
On July 14, 2000, a third interview of K.B. was videotaped. Walton stated he had to use leading questions to K.B., who was reluctant to give detailed facts about the incidents. However, Walton tried to remind K.B. of the facts she had already given him in earlier interviews.
The police seized the computer equipment in Spurlock’s residence and found 592 photographs of nude women on a hard drive by using specialized software. The photographs were in unallocated space, and the police computer expert copied them on a computer disc. The expert stated some of these pictures were downloaded from website pages, but he could not tell whether they were deleted manually or automatically by the computer or when they went down to unallocated space.
At trial, the videotape of the interview of K.B. by Walton was played for the jury. K.B. testified by closed-circuit television over defense objection. K.B. stated Spurlock used a brush on his private parts in the bathroom, he made her touch his private parts in the computer room, and he touched her by pushing with his finger till it hurt. K.B. stated Spurlock touched her in the kitchen, the computer room, and the bedroom. K.B. stated he made her touch his private parts in the computer room, and “there was milk coming out of him, his private part, then he grabbed a napkin, then he wiped it off of me.”
Jan Van Patten, a clinical social worker, testified. She had met with K.B. for therapy sessions 18 times between April 24, 2000, and the trial. From her notes, Van Patten recounted the incidents that K.B. told her: Spurlock came to her bed, touched her privates, and kissed her; and Spurlock licked his fingers and “put it in [her] private part” in the kitchen. She was also present at the video interview of K.B. by Walton. During the interview, K.B. stared into the air several times without answering the questions, and Van Patten commented that K.B. was disassociating. Over defense objection, Van Patten explained disassociation was “away of blocking out things that are too stressful for us to deal with.” She also testified over defense objection that it was common in child victims of sex abuse to disassociate.
Lyn Harris, a federal probation and parole officer, testified regarding her interview with Spurlock, whom she was supervising for a prior sex offense involving children. According to Harris, Spur-lock was required to report to her whenever he had contact with a police officer. Spurlock called Harris on April 7, 2000, and told her he had a serious problem. Harris agreed to meet with him on April 10, 2000, at his residence. At the onset of their conversation on April 10, Spurlock first discussed the allegations regarding K.B. and told Harris he had searched the internet regarding state prison facilities. Spurlock next acknowledged violation of his parole by having unsupervised contact with a minor. The prosecutor then asked:
“Q. Let me stop you for a minute. Why would he have that condition on his parole?
“A. Because he has — because of the type of conviction that he has.
“Q. Okay. Did it involve children?
“A. Yes.
“Q. And was it a sex case.
“[DEFENDANT’S LAWYER] Your honor, I am going to object, based on our previous motions.
“THE COURT: Noted and overruled for the reasons we have previously taken up outside the presence of the jury. Go ahead.
“Q. [PROSECUTOR] It was a sex offfense involving children?
“A. Yes, it was.”
Harris also testified that Spurlock told her he had recently taken down a mirror that had been affixed to the comer of a wall in the computer room so that Jolene could see into the room when the children and the defendant were using the computers. The mirror had been installed as a requirement of Spurlock’s parole.
The jury found Spurlock guilty of all three charges. He was sentenced to 653 months’ imprisonment for rape and 61 months for each count of aggravated indecent liberties, with the sentences imposed consecutively.
Discussion .
Prior Crimes Evidence
The trial court determined the conversation between Spurlock and Harris that alluded to his prior conviction and parole status was admissible under K.S.A. 60-455 to show intent and plan under the two counts of aggravated indecent liberties with a child. The court also found the evidence was independently admissible to explain the relationship between Spurlock and Harris and the factual circumstances of their discussion.
Spurlock contends the trial court abused its discretion in admitting evidence of his prior conviction under K.S.A. 60-455. He argues the evidence was irrelevant and its prejudicial impact upon the juiy far outweighed any probative value.
K.S.A. 60-455 allows the introduction of prior crimes evidence “when relevant to prove . . . motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” However, there are three requirements that must be satisfied to support admission of the evidence: (1) The evidence must be relevant to prove one of the facts specified in the statute; (2) the fact must be a disputed, material fact; and (3) the probative value of the evidence must outweigh its potential prejudice. State v. Tiffany, 267 Kan. 495, 498, 986 P.2d 1064 (1999) (quoting State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 [1997]). “If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether the district court abused its discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable.” Tiffany, 267 Kan. 495,' Syl. ¶ 2.
In State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974), the court held that where an armed robber extracted money from a store owner at gunpoint, his felonious intent was obvious from the act itself and was not really in material dispute; therefore, prior crimes evidence to prove intent should not have been admitted. As in Bly, Spurlock did not offer an innocent acts defense to the charges of aggravated indecent liberties with a child, so the issue of intent was not in material dispute. Because there was no credible evidence of an innocent touching, the prior crimes evidence was not admissible under K.S.A. 60-455 to prove intent.
We next consider whether the evidence was admissible to show plan. In State v. Damewood, 245 Kan. 676, 681-82, 783 P.2d 1249 (1989), the court acknowledged evidence might be admitted under K.S.A. 60-455 to show the modus operandi to commit similar but totally unrelated crimes. The court explained: “The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts.” 245 Kan. at 682.
Subsequently, Damewood was held to be controlling in State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 (1992), with the court observing “[t]he general method used by Clements to entice young boys is similar enough to show a common approach that is tantamount to a plan.”
In both Damewood and Clements, factual evidence was presented to establish the similarity of the prior crimes with the present charges against the defendants. At Spurlock’s trial, the State did not offer any facts of Spurlock’s prior crime to show similar situations in which he committed aggravated indecent liberties. The State only proved that he had a militaiy conviction of sexual abuse of children. It did not explain whether the victim in the military case was also a young girl or any other circumstances of the prior crime. This failure to present factual evidence to establish modus operandi is fatal. The trial court erred in admitting the prior crimes evidence under K.S.A. 60-455 to prove plan.
We must next consider whether the prior crimes evidence was admissible independently of K.S.A. 60-455. Our standard of review is abuse of discretion by trial court in its ruling. See State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Harris testified regarding her interview with Spurlock, who had made somewhat self-incriminating statements. She stated Spurlock called her by telephone on April 7 and told her he had a serious situation. He was required to report to her whenever he had law enforcement contact. Harris went to his house on April 10 to speak to Spurlock. He told Harris that he had been searching the internet to obtain information about state prison facilities. Spurlock admitted to Harris that he had violated his parole conditions, which prevented him from unsupervised contact with children, when Jolene went into a grocery store, leaving him alone with the children in a car. Spurlock told Harris he took down a mirror in the computer room which was set up so that Jolene could see into the room, and he admitted he put himself at risk with the children.
In State v. Spresser, 257 Kan. 664, 667-68, 896 P.2d 1005 (1995), the court recognized that prior crimes evidence may sometimes be admissible independent of K.S.A. 60-455. The court stated:
“Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses. The law allows tire admission of evidence as part of the res gestae of acts made before, during, or after the principal event. State v. Bowman, 252 Kan. 883, Syl. ¶¶ 2, 5, 850 P.2d 236 (1993). If the evidence is a part of the res gestae of die offenses for which a defendant is being tried, such evidence may be introduced independent of K.S.A. 60-455. See State v. Gilder, 223 Kan. 220, 228, 574 P.2d 196 (1977).
“Acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of die res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish. State v. Davis, 236 Kan. 538, 539, 694 P.2d 418 (1985).” 257 Kan. at 667-68.
In State v. Edwards, 264 Kan. 177, 955 P.2d 1276 (1998), the court again considered the independent admission of prior bad acts. The defendant Edwards was convicted of first-degree murder, aggravated robbeiy, and conspiracy to possess hallucinogenic drugs with intent to sell. The State’s theory was that Edwards killed a drug dealer during a robbeiy to obtain drugs. In the course of their investigation, the police searched the defendant’s girlfriend’s apartment and found drug paraphernalia and marijuana. At trial, the paraphernalia and marijuana were introduced in evidence over Edwards’ timely objection that the evidence was not admissible under K.S.A. 60-455.
The trial court overruled the objection, stating the evidence would be admitted as part of the res gestae and because of its relevance to the charge of conspiracy to possess hallucinogenic drugs with intent to sell. The Supreme Court concluded it was error to admit the evidence under a theory of res gestae, but then explained:
“In addition to finding that the evidence was part of the res gestae, the trial court found that the evidence was relevant to prove the conspiracy to possess marijuana with intent to distribute charge. This court has long held that evidence which has relevance in proving the crime at issue is admissible independent of K.S. A. 60-455, even if it discloses another or independent offense. State v. Sexton, 256 Kan. 344, Syl. ¶ 1, 886 P.2d 811 (1994); State v. Peck, 237 Kan. 756, 762, 703 P.2d 781 (1985). Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact. State v. Sexton, 256 Kan. 344, Syl. ¶ 1.” 264 Kan. at 201.
We find the rationale expressed in Edwards persuasive authority to support the trial court’s decision to admit the evidence against Spurlock. Under our limited standard of review, we hold the fact of and nature of Spurlock’s conviction were relevant to explain the parole officer/defendant dichotomy, the reason for the specific conditions of parole, and the significance of Spurlock’s statements to Harris. We further hold that the trial court struck an appropriate balance between the probative value of the evidence and the potential prejudice to Spurlock by excluding details of the prior crime.
Testimony of Social Worker
The admission of expert testimony lies within the sound discretion of the trial court. Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or in interpreting technical facts or if it assists the jury in arriving at a reasonable factual conclusion from the evidence. Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996). An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Lumley, 266 Kan. at 950.
Spurlock argues the trial court erred in allowing Van Patten to give an opinion as to the reasons for K.B.’s reticence, relying on the holdings in State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986), and State v. Mullins, 267 Kan. 84, 96, 977 P.2d 931 (1999).
In Jackson, two social workers who investigated allegations of molestation testified over the defendant’s objection and before the jury that, in their opinions, the victim was telling the truth and the victim was sexually abused by the defendant. The court stated “the witnesses attempted to serve as human lie detectors for the child” and held “it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements.” 239 Kan. at 470. The court concluded the admission of this expert testimony was prejudicial and reversible error and reversed the conviction. 239 Kan. at 470.
In Mullins, a registered nurse who conducted a physical examination and interview of a young victim, B.M., testified there were no signs that he had been “coached.” The court stated the nurse clearly had the education and background necessary to testify as an expert and stated the issue was whether asking if the victim appeared, to have been coached as to what to say was improper and, if it was, would it be considered harmless error or so egregious an error as to require reversal and a new trial. 267 Kan. at 94. The court concluded:
“There are subtle and not so subtle distinctions in the manner in which the questions leading to a suggestion of truthfulness of the victim are asked. When the trial court overruled defense counsel’s objection, Phillips [the nurse] rephrased the question, T thought he had been coached?’ and answered, ‘No.’ Technically, as prohibited by [State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985)] and Jackson, the question asked of Phillips does not allow the giving of an opinion that B.M. had been sexually assaulted by Mullins or render an opinion that he was telling die truth. This does not, however, mean the question was proper, as it implies truthfulness.” 267 Kan. at 96.
The Mullins court stated the question was directed to whether B.M. was coached, which was another way of asking if he was telling the truth. The court held the trial court erred in allowing the question to be answered, although it was a close question. However, the court applied the harmless error rule of K.S.A. 60-261 and concluded the error did not “cause prejudice to the substantial rights of Mullins so as to be inconsistent with substantial justice.” 267 Kan. at 97.
In this case, Van Patten was a licensed clinical social worker in private practice who became K.B.’s therapist after K.B.’s allegations were revealed. She had met with K.B. for counseling and rehabilitation for the effects of sexual abuse. She met with her a total of 18 times, and, on two occasions, K.B. talked about the alleged incidents. During the April 24, 2000, interview with K.B., Van Patten went over the difference between the truth and a lie, and K.B. could very easily tell the differences. During the interview, K.B. voluntarily stated Spurlock touched her private area and her breast underneath her clothes. K.B. told Van Patten that Spur-lock made her touch his private parts in the bedroom.
During the September 18, 2000, session, K.B. stated Spurlock touched her private parts and kissed her in the bedroom and “[mjilk came out and he took toilet paper to wipe it off.” K.B. further stated in the kitchen Spurlock licked his fingers and “put it in [her] private part.” These statements were made without defense objections.
The complained-of statements of Van Patten were made while explaining why K.B. was reluctant to talk about the allegations of abuse during the videotaped interview with Walton in her office. K.B., in fact, denied certain things happened, although the State’s witnesses stated K.B. voluntarily revealed tiróse things in their earlier interviews. Van Patten explained this as “disassociation.” Over defense objection, she further stated it was a common phenomenon for child victims of sex abuse to disassociate.
The courts have held that an expert’s opinion is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. Although an expert may give his or her opinion on an ultimate issue, the expert may only do so insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. State v. Heath, 264 Kan. 557, 576, 957 P.2d 449 (1998).
In her testimony, Van Patten did not state she believed K.B. was sexually abused by Spurlock, and she did not render an opinion that K.B. was telling the truth. Van Patten’s testimony on disassociation offered an explanation of K.B.’s behavior during the interview from the psychological point of view. The jury heard testimony of the police officers and the nurse who interviewed K.B., and the jury watched the videotaped interview. The jury watched K.B. testify via closed-circuit television at trial. The jury was free to decide K.B.’s credibility through her consistent and inconsistent statements. This case is factually distinguishable from Jackson and Mullins. Van Patten’s testimony was not an impermissible comment on K.B.’s credibility but rather an opinion intended to assist the jury in understanding possible psychological consequences recognized and attributable to posttraumatic stress disorder.
Motion for Mistrial
Spurlock argues the trial court erred in denying his motion for mistrial after Detective Walton mentioned that Spurlock had invoked his right to counsel during his interview.
“A trial court should terminate the trial and grant a mistrial if prejudicial conduct malees it impossible to proceed without injustice to the defendant. K.S.A. 22~3423(c). A decision on a motion for mistrial is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Vontress, 266 Kan. 248, 254-55, 970 P.2d 42 (1998); State v. Stallings, 246 Kan. 642, 646, 792 P.2d 1013 (1990). The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. State v. McClanahan, 259 Kan. 86, 92, 910 P.2d 193 (1996).” State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001).
It is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998). It makes no difference whether the evidence was presented on direct or cross-examination, because the potential for prejudice is the same in both situations. State v. Fisher, 222 Kan. 76, 83, 563 P.2d 1012 (1977).
In considering Spurlock’s motion for a mistrial, the court reviewed the exchange between Walton and Spurlock’s counsel and held that error had in fact occurred. However, the court concluded the error did not warrant a mistrial and offered to give a curative instruction to the jury. The defense counsel, after consulting with Spurlock, declined the offer of a limiting instruction but requested to ask the same question and obtained the short answer, “No, he did not” from Walton, who did not refer to defendant’s right to counsel.
We must decide whether the violation was so prejudicial as to require a new trial. This question is measured by the constitutional standard of harmless error, which is based on a belief beyond a reasonable doubt that the error did not contribute to the verdict. To facilitate the determination of whether a comment on a defendant’s post -Miranda silence was harmless error, Kansas appellate courts consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt, and further consider whether the language used was manifestly intended to be, or was of such character that the juiy would naturally and necessarily take it to be, a comment on the failure of the defendant to testify. Edwards, 264 Kan. at 196; State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994).
In this case, the State clearly did not intend to introduce the fact that Spurlock invoked the right to counsel while talking to Walton. In fact, the comment was a response to the questions by the defense counsel, who repeatedly asked Walton the same question— whether Spurlock denied the allegations at the interview at the police station. After the jury was brought back, the defense again asked if Spurlock had admitted to any of the allegations made against him, and Walton replied, “No, he did not.” The State never raised the topic of Spurlock’s silence again in its examination or closing argument. Walton’s brief comment on Spurlock’s invocation of his right to counsel was not of such character that the jury would naturally and necessarily take it to be a comment on Spur-lock’s failure to testify.
In State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988), the subject of tire defendant’s silence initially arose during the defense’s cross-examination of a witness for the State; the State, however, further questioned the witness in detail about the defendant’s refusal to talk after his arrest, and the State emphasized the defendant’s silence again during closing argument. The facts of this case are more similar to those in Edwards and Gadelkarim and are distinguished from those in Higgins.
Moreover, the strength of the evidence indicating Spurlock’s guilt contravenes the argument that he was denied the right to a fair trial by the officer’s comment that Spurlock invoked his Miranda rights. The prejudicial value of the evidence was not great; there was little chance that a jury would have considered it to be a comment on Spurlock’s failure to immediately assert his innocence. The error was harmless. See Edwards, 264 Kan. at 196; Gadelkarim, 256 Kan. at 686. The trial court did not abuse its discretion in denying Spurlock’s motion for mistrial.
KB.’s Testimony by Closed-circuit Television
Spurlock argues the trial court permitted K.B. to testify by closed-circuit television in violation of his 6th Amendment right.
K.S.A. 22-3434 provides a statutory procedure by which an alleged child victim of a crime may testify outside the courtroom and the testimony may be televised by closed-circuit equipment. A defendant in a sexual abuse trial is not denied the constitutional right to confrontation where the child testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court (1) hears evidence and determines use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child who is testifying; (2) finds that the child would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) finds that the emotional distress suffered by the child in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. State v. Chisholm, 250 Kan. 153, 166, 825 P.2d 147 (1992).
The State filed a pretrial motion for K.B. to testify via closed-circuit television. At the hearing, Van Patten testified K.B. would “shut down” in a courtroom setting where Spurlock and her grandmother were present and K.B. was aware that her grandmother did not believe what she had said and supported Spurlock. Van Patten testified K.B. would feel intimidated and anxious because of the divided loyalties about her grandmother and Spurlock.
The trial court recited the K.S.A. 22-3434 standard that the State had to establish by clear and convincing evidence and found the State had met its burden under the statute. The court found, first of all, Van Patten was qualified to give an opinion regarding K.B.’s possible emotional distress at testifying in the courtroom because she had an in-depth perception and understanding of K.B. from almost a year s counseling sessions. The court found there would be “much higher degree of traumatization” if K.B. were to testify in the courtroom where family members and Spurlock would be present. The court concluded the open court setting would have “a good chance of preventing her from communicating reasonably with counsel and with the juiy.” The court held the State had met its burden under K.S.A. 22-3434.
Although the trial court did not use the precise language in K.S.A. 22-3434, it stated the particularized findings of trauma suf ficient to satisfy the standard. See Chisholm, 250 Kan. at 166-67. We conclude the trial court did not err in allowing K.B. to testify by closed-circuit television after finding the requirements in 22-3434 were satisfied.
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Johnson, J.;
Following a jury trial, Eugene A. Kemp was convicted of four counts of aggravated kidnapping, two counts of kidnapping, one count of attempted aggravated robbery, and one count of aggravated burglary. Kemp was sentenced to a controlling term of 1240 months’ imprisonment. Kemp appeals his convictions, challenging the sufficiency of the evidence to support the elements of kidnapping and aggravated kidnapping and the adequacy of the foundation for the admission of his videotaped statement. Kemp also challenges the inclusion of juvenile adjudications in his crim inal history for sentencing purposes. We affirm in part and reverse in part.
Highly summarized, the facts were as follows. Two masked gunmen entered Candace Sue Lasiter’s home to steal drugs and money. Liberty Pierce was asleep in the living room, three men (Richard, Thomas, and Michael) were in a bedroom playing video games and smoking marijuana, and Candace and her son Jessie were out running errands. The gunmen awakened Liberty and led her at gunpoint to the bedroom where the three men were located. Apparently, the gunmen heard Candace and Jessie returning. One gunman stayed with the four people in the bedroom; the other gunman went to the front door, met Candace and Jessie, demanded money at gunpoint, and shoved them down the hallway to another bedroom. At some point, the first gunman was overtaken by the three men and the second gunman came to the first bedroom, forced the door open, and began firing into the room. The three men and Liberty were all shot and suffered varying degrees of injury. The gunmen fled. Kemp was identified by one of the victims, who knew him previously. DNA testing linked Kemp to a bandanna recovered near the house. Kemp ultimately confessed to the police in a videotaped interview.
SUFFICIENCY OF THE EVIDENCE
Kemp first argues that the evidence supporting the kidnapping charges was not sufficiently distinct from the evidence supporting the aggravated robbery and aggravated burglary charges. Specifically, Kemp argues the three men were never moved to a different location and that their confinement was a necessary component of the robbery. Kemp acknowledges that Liberty, Candace, and her son were moved down a hallway, but he asserts the movement was for the robbers’ convenience, not to facilitate the robbery.
When the sufficiency of evidence is challenged on appeal, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Hays, 256 Kan. 48, 61, 883 P.2d 1093 (1994). The State must prove all of the elements of the crime charged.
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) For ransom, or as a shield or hostage;
“(b) to facilitate flight or the commission of any crime;
“(c) to inflict bodily injury or to terrorize the victim or another; or “(d) to interfere with the performance of any governmental or political function.” K.S.A. 21-3420.
Aggravated kidnapping involves the additional element that bodily harm must be inflicted on the victim. K.S.A. 21-3421. Kemp was prosecuted under K.S.A. 21-3420 (b), i.e., he allegedly took or confined the victims with the intent to facilitate the commission of aggravated robbeiy.
In State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the Supreme Court set forth the criteria to assess whether the accused’s taking or confining of the victim was sufficiently separate and distinct from the accused’s actions in committing the underlying crime to constitute the additional crime of kidnapping:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 216.
It is clear that the three men (Richard, Thomas, and Michael) were not kidnapped. They were not moved from the bedroom in which they were initially discovered. Their confinement was merely incidental to the attempt to rob them of drugs and money at gunpoint. It is difficult to perceive of an aggravated robbery involving any less confinement than was effected here; the confinement was inherent in the crime allegedly facilitated. The situation presented in the bedroom was a “standstill robbery,” as described in Buggs. 219 Kan. at 215-16; see also Hays, 256 Kan. at 63 (reversing kidnapping conviction on similar facts).
Liberty, on the other hand, was taken from the living room and moved down a hallway before being confined with the others in the bedroom. However, movement alone does not support a kidnapping charge. See, e.g., State v. Fisher, 257 Kan. 65, 78, 891 P.2d 1065 (1995) (holding movement of store clerk to obtain key to safe did not constitute kidnapping). Buggs requires that the movement have some significance beyond that required for the underlying offense. 219 Kan. 203, Syl. ¶ 10. Moving all victims to a central location before commencing the gathering of their property appears to be a matter of convenience rather than an act which makes the robbeiy substantially easier to effect or which lessens the risk of detection. One would not expect an aggravated robbeiy of convenience store patrons to take place aisle by aisle; all victims would normally be shepherded together.
The State responds that the three men and Liberty were confined in the bedroom to prevent Candace and her son from detecting the robbery. Liberty did testify that one of the gunmen noticed the lights of Candace’s car before moving her to the bedroom with the three men. However, when Candace and Jessie opened the front door and encountered a masked man pointing a gun at them and demanding money, it is reasonable to believe they detected that a robbeiy was in progress. The fact that Kemp remained with the other four victims was probably necessaiy to prevent their escape prior to completion of the robbeiy, but it did not substantially lessen the risk that Candace and Jessie would discover a robbeiy was in progress. Most Kansas cases addressing kidnapping charges based on the lessening the risk of detection prong of Buggs contain far more compelling facts. In several cases, the victims were bound. See State v. Hammond, 251 Kan. 501, 505, 837 P.2d 816 (1992); State v. Lewis, 27 Kan. App. 2d 380, 388, 5 P.3d 531 (2000); State v. Little, 26 Kan. App. 2d 713, 719, 994 P.2d 645 (1999). In other cases, the victims were moved to a separate, more remote location. See State v. Richmond, 258 Kan. 449, 453, 904 P.2d 974 (1995); State v. Alires, 246 Kan. 635, 638, 792 P.2d 1019 (1990). The facts of this case more closely resemble those presented in Hays, where the court determined that the victim’s con finement during the course of a robbery did not support an additional charge of kidnapping. 256 Kan. at 62-63.
The simple kidnapping charges were related to Candace and Jessie; bodily harm was not inflicted on either of them. Kemp’s accomplice did force them down a hallway, but there is no indication that the movement was for any purpose other than to rob them. Candace testified she was pushed into another bedroom. However, the struggle that erupted when Richard, Thomas, and Michael attacked Kemp interrupted the accomplice and Candace testified that she was alone in that bedroom. As the accomplice went to Kemp’s aid, Jessie exited the house through a window. Even viewed in the light most favorable to the prosecution, the evidence does not show that Candace and Jessie were confined or that their movement was not slight, inconsequential, and merely incidental to the aggravated robbery. The movement had no significance independent of the robbery.
Certainly, the victims, especially Ballenger, were seriously harmed. However, we are not assessing whether great bodily harm was inflicted, as we would with an aggravated battery charge. Further, the harm emanated from an attempted aggravated robbery, not a kidnapping. The convictions for aggravated kidnapping and kidnapping are reversed.
Because we find that none of the kidnapping charges were supported by the evidence, we need not address Kemp’s arguments regarding the reduction of aggravated kidnapping to simple kidnapping or the giving of a lesser included offense instruction.
FOUNDATION FOR VIDEOTAPED STATEMENT
Kemp argues the district court erred in admitting his videotaped confession. The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
At trial, the State proffered Kemp’s videotaped confession, and defense counsel lodged a timely objection to the foundation laid by the State. The trial judge overruled Kemp’s objection, and the tape was played for the jury.
Apparently, our courts have not specifically addressed the foundational requirements for admitting a videotape into evidence. Kemp argues that the standard used for admitting photographic evidence should be applied to videotapes. The State, on the other hand, contends that the standard used for admitting audiotapes should be applied.
Photographs are generally admissible after proper foundation and identification if they accurately represent an object that is material and relevant to an issue in the case. State v. Jefferson, 204 Kan. 50, 54, 460 P.2d 610 (1969). Proper foundation exists when the witness demonstrates he possesses the requisite skill and experience to conduct the demonstration and displays the accuracy and reliability of the models and photographs. State v. Kendig, 233 Kan. 890, 892, 666 P.2d 684 (1983). Kemp’s chief complaint is that the State provided no basis to conclude that the videotape accurately represented his interaction with the interrogating officer.
The State responds that the prosecutor did, in fact, lay an adequate foundation for the admission of the videotape. In Kansas, the elements that constitute a proper foundation for the admission of an audiotape have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the-recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984).
It is interesting to note that the State has advocated a more stringent standard than Kemp. More to the point, however, other jurisdictions that have considered the issue have adopted the standard used for admitting photographic evidence. See State v. Redd, 144 N.C. App. 248, 251, 549 S.E.2d 875 (2001); Reynolds v. State, 539 So. 2d 428, 430 (Ala. App. 1988); State v. Braud, 475 So. 2d 29, 32 (La. App. 1985). Indeed, the seven-part test used to verify and admit sound recordings has been considered by some to be “ ‘obsolete, even for sound recordings’ ” and “ ‘has been abandoned in the better reasoned cases in favor of a rule holding that sound tapes like photographs are admissible when a witness testifies they are rehable representations of the subject sound. [Citations omitted]’ ” Reynolds, 539 So. 2d at 430.
Under either standard, the State failed to lay an adequate foundation for the admission of the videotape. At most, the officer testified that the tape admitted into evidence was a copy of the original tape. The officer was never asked, nor did he testily, whether the tape accurately represented his conversation with Kemp. Because the prosecutor failed to provide a proper foundation, the videotape was improperly admitted.
Our review, however, is a two-step process. If we first find that evidence has been improperly admitted, we must then determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence. State v. Leitner, 272 Kan. 398, Syl. ¶ 6, 34 P.3d 42 (2001). Kemp has not alleged any error of constitutional magnitude, so the general harmless error rule applies. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless the erroneous action appears to the court to be inconsistent with substantial justice. K.S.A. 60-261; State v. Bornholdt, 261 Kan. 644, 660, 932 P.2d 964 (1997).
While a videotaped confession is particularly damning evidence, on the facts of this case, the trial judge’s erroneous admission of it was harmless. The other evidence presented against Kemp was compelling. Several of the victims identified him, and DNA evidence linked him to one of the bandannas worn during the robbery. While the State should not be relieved of its obligation to lay a proper foundation for the evidence it seeks to admit, its failure here did not yield an unjust result. The erroneous admission of the videotape into evidence did not constitute reversible error.
JUVENILE ADJUDICATIONS
Finally, Kemp challenges the sentence imposed by the district court. Kemp’s presentence investigation report revealed his exten sive criminal history, which resulted in a criminal history score of “A.” The vast majority of Kemp’s prior offenses were committed when he was a juvenile. Without the juvenile adjudications in his criminal history, Kemp would have a criminal history score of “I” and a significantly shorter prison term.
On appeal, Kemp argues that the use of juvenile adjudications to enhance his sentence violated his constitutional right to due process, as the juvenile adjudications were never proven to a jury beyond a reasonable doubt. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Following the rationale of Apprendi, our courts have determined that “the Kansas statutory scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face” because it did not require the aggravating factors used to enhance a defendant’s sentence to be found by a jury beyond a reasonable doubt. See State v. Gould, 271 Kan. 394, Syl. ¶ ¶ 2, 3, and 4, 23 P.2d 801 (2001). However, prior convictions need not be submitted to the jury nor proved beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998).
Our Supreme Court has confirmed that the Apprendi prior conviction exception encompasses juvenile adjudications. State v. Hitt, 273 Kan. 224, Syl. ¶ ¶ 1 and 2, 42 P.3d 732 (2002). Kemp’s juvenile adjudications were properly included in his criminal history determination.
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Green, J.;
Pittsburg State University/Kansas National Education Association (PSU/KNEA) appeals the dismissal of its petition for judicial review of a decision of the Public Employee Relations Board (PERB). The district court dismissed PSU/KNEA’s action against the Kansas Board of Regents/Pittsburg State University (KBR/PSU) and the Kansas Department of Human Resources (KDHR) because PSU/KNEA failed to name PERB in the case caption of the petition. On appeal, PSU/KNEA argues that the district court erred in denying its motion to amend the case caption or, alternatively, that the case caption was sufficient to confer jurisdiction on the district court. We reverse and remand for further proceedings.
PSU/KNEA filed a complaint with PERB alleging that KBR/ PSU refused to collectively bargain and negotiate with respect to intellectual property rights. PERB concluded that KBR/PSU had not committed a prohibited practice. In its amended final order PERB advised PSU/KNEA of the following:
“Pursuant to K.S.A. 1998 Supp. 77-527(j), K.S.A. 77-613(e), and K.S.A. 77-615(a), any parly seeking judicial review must serve a copy of its petition upon the PERB board’s designated agent at the following address:
A.J. Kotich, Chief Counsel
KDHR-Legal Services
401 S.W. Topeka Blvd.
Topeka, Kansas 66603-3182”
PSU/KNEA filed a petition for judicial review with the Shawnee County District Court appealing PERB’s decision. The case caption of the petition names KBR/PSU and KDHR as the respondents. Although PERB is not named in the case caption, the agency is named throughout the body of the petition. Moreover, PERB had notice of the petition because PSU/KNEA timely served PERB through its designated agent, A.J. Kotich.
KDHR and KBR/PSU filed separate answers to the petition complaining about the absence of PERB from the case caption. PSU/KNEA moved to amend the petition to add PERB to the caption. The trial court denied the motion, finding that the KJRA requires strict compliance and that PSU/KNEA was out of time to amend the case caption.
KBR/PSU and KDHR moved to dismiss alleging lack of subject matter jurisdiction for failure to name PERB in the case caption. The trial court granted the motion to dismiss after finding that K.S.A. 60-210(a) requires that parties be named in the caption and that the failure to name PERB in the caption was fatal to jurisdiction. The trial court rationalized that because PSU/KNEA failed to name PERB in the case caption, it failed to strictly comply with K.S.A. 77-613(b), which required PSU/KNEA to file its petition for judicial review against the proper agency within 30 days after service of the amended final order.
On appeal, PSU/KNEA argues that the trial court erred in denying its motion to amend tire case caption. Resolution of this issue requires interpretation of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
As noted previously, the trial court applied K.S.A. 60-210(a) in requiring PSU/KNEA to name PERB in the case caption of its petition for review of an agency action and in determining that its failure to do so was fatal to jurisdiction. Accordingly, our first obstacle is to determine whether the trial court was correct in applying the rules of civil procedure to the KJRA appeal. K.S.A. 77-603(b) states that the KJRA “creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.” Moreover, K.S.A. 60-201 states the scope of K.S.A. Chapter 60: “This article governs the procedure in the district courts of Kansas, other than actions commenced pursuant to chapter 61 of the Kansas Statutes Annotated, and any amendments thereto, and governs the procedure in all original proceedings in the supreme court and all suits of a civil nature whether cognizable as cases in law or in equity, except as provided in K.S.A. 60-265.”
This court applied a rule of civil procedure in a KJRA appeal in University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 356-57, 887 P.2d 1147 (1995). The University of Kansas court held that the procedure for obtaining a more definite statement, as provided in K.S.A. 60-212(e), can be used in a proceeding for judicial review of agency actions. See also Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 166, 769 P.2d 1 (1989) (applying a rule of civil procedure, K.S.A. 60-252, in a KJRA agency appeal in holding that the district court is required to weigh the evidence from the record in order to make a separate and distinct ruling on each material issue on which its decision is based).
The University of Kansas opinion was criticized because a petition for judicial review must strictly comply with the pleading requirements of K.S.A. 77-614(b) and, as such, K.S.A. 60-212(e) should not have been applied to require a respondent to file a motion for a more definite statement when a petition for judicial review lacks the required information. Leben, Challenging and Defending Agency Actions in Kansas, 64 J.K.B.A. 22, 35 (June/July 1995).
Application of the rules of civil procedure in the instant case, however, is distinguishable from the court’s actions in University of Kansas because, unlike the KJRA’s strict pleading requirements, the KJRA does not have a statute providing for a case caption. Although K.S.A. 77-614 sets forth the pleading requirements, that statute, or any other provision of the KJRA, does not require a case caption. As such, the rule of statutory construction that a special statute will control over a general statute is not applicable. See generally In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999). Instead, because a case caption is a logical necessity, the general statute, K.S.A. 60-210(a), supplements the KJRA and provides the rule for a case caption in a petition for judicial review of an agency action. As a result, we find that under K.S.A. 60-210(a), a petition for judicial review of an agency action must contain a case caption naming all of the parties.
We must next determine whether a petitioner may amend a petition for judicial review of an agency action to add or substitute a party in the case caption. One of the methods under K.S.A. 2000 Supp. 60-215(a) for amending a party’s pleading states: “[a] party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” It has been theorized that “[t]he provisions of K.S.A. 60-215 regarding amendment of pleading are not applicable: the KJRA does not contain provisions for substantial compli anee similar to those found in Chapter 60.” Leben, 64 J.K.B.A. at 35. This blanket statement, however, has not been adopted by an appellate court of this state. In any event, while K.S.A. 2000 Supp. 60-215(a) may not allow a petitioner to amend, for example, an item of a pleading strictly required by K.S.A. 77-614(b), the KJRA does not have a case caption requirement. As such, a strict compliance rule does not apply to the case caption and, under K.S.A. 2000 Supp. 60-215(a), the trial court may grant leave to amend the case caption of a petition for judicial review of an agency action if the amendment is in the interest of justice.
Here, the trial court should have allowed PSU/KNEA to amend the case caption to add or substitute PERB as a party because the amendment would be in the interest of justice. PSU/KNEA should be allowed to amend the case caption because PERB’s notice of right to seek judicial review misleadingly specified a KDHR attorney as its designated agent. This inconsistency on the part of PERB may have prompted PSU/KNEA to name KDHR rather than its subagency PERB in the case caption. As a result, PSU/KNEA should have been allowed to amend the case caption under K.S.A. 2000 Supp. 60-215(a) to add or substitute PERB as a party.
It is next necessary to determine whether PSU/KNEA’s petition for judicial review would be timely once the case caption is amended to add or substitute PERB as a party. As noted previously, K.S.A. 77-613(b) required PSU/KNEA to file its petition for judicial review within 30 days of PERB’s final order. Amendment of the petition would relate back to the date of filing if K.S.A. 2000 Supp. 60-215(c) applies and if the statutory provisions of that subsection are satisfied. It provides:
“(c) An amendment of a pleading relates back to the date of the original pleading when:
(1) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by law for commencing the action against the party including the period for service of process under K.S.A. 60-203 and amendments thereto, the party to be brought in by amendment: (A) Has received such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits; and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.”
Although K.S.A. 77-613(b) requires a pleading to be filed within 30 days of service of the order, application of K.S.A. 2000 Supp. 60-215(c) to permit relation back of an amendment of a case caption of a petition for judicial review would not conflict with this strict compliance requirement. PSU/KNEA strictly complied with K.S.A. 77-613(b) by fifing its petition for judicial review within 30 days of PERB’s final order. Permitting PSU/KNEA’s amendment of the case caption to relate back to the date of fifing would not compromise this strict compliance requirement because amendment of the case caption would not extend the period of time in which PSU/KNEA had to file its petition. As a result, we find that K.S.A. 2000 Supp. 60-215(c) supplements the KJRA to allow for relation back of an amendment of tire case caption of a petition for judicial review, provided that the statutory requirements are satisfied.
We must next determine whether under K.S.A. 2000 Supp. 60-215(c) PSU/KNEA’s amendment of the case caption of its petition for judicial review relates back to the date of fifing. First, the condition set out in subsection (c)(1) of the statute was satisfied because the claim still arises out of tire same transaction or occurrence — PERB’s denial of PSU/KNEA’s claim against KBR/PSU.
Moreover, K.S.A. 2000 Supp. 60-215(c)(2)(A) of tire statute was satisfied if, within the period provided by law for commencing the action, PERB received sufficient notice of PSU/KNEA’s agency appeal so that it would not be prejudiced. On appeal, KBR/PSU and KDHR argue that PSU/KNEA did not strictly comply with the notice requirements of the KJRA because PSU/KNEA did not serve PERB’s agency head. K.S.A. 77-615(a) provides:
“A petitioner for judicial review shall serve a copy of the petition in the manner provided by subsection (e) of K.S.A. 77-613, and amendments thereto, upon the agency head, on any other person or persons designated by the agency head to receive service, on any agency officer designated to receive service in an order or on the agency officer who signs the order.” (Emphasis added.)
Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 13, 825 P.2d 172 (1991), held that a petitioner for judicial review did not strictly comply with K.S.A. 77-613(d) because he did not serve the agency head. The instant case is distinguishable from Claus because PERB’s notice of right to seek judicial review designated A. J. Kotich as the agent to receive service and, as such, PSU/KNEA was required to serve Kotich rather than PERB’s agency head. As noted in Claus, “[a] petitioner for judicial review shall serve a copy of the petition upon the agency head or on any other person or persons designated by the agency head to receive service . . . .” (Emphasis added.) 16 Kan. App. 2d 12, Syl. As a result, we find that K.S.A. 2000 Supp. 60-215(c)(2)(A) was satisfied because PERB received sufficient notice of the agency appeal through PSU/KNEA’s timely service of Kotich.
Finally, we find that K.S.A. 2000 Supp. 60-215(c)(2)(B) was satisfied because PERB knew or should have known that it was the correct respondent to PSU/KNEA’s agency appeal. PERB should have known that it was a proper party to the appeal because it was the agency whose action was at issue. PSU/KNEA’s petition identified that the agency action at issue was PERB’s final order denying PSU/KNEA relief. Moreover, PERB should have known that PSU/KNEA mistakenly named KDHR as a respondent because PERB’s notice of right to seek judicial review misleadingly identified a KDHR attorney as the designated agent. As a result, because PERB was timely served with PSU/KNEA’s petition via service to Kotich, PERB knew within the period provided by law for commencing the appeal that but for PSU/KNEA’s mistake concerning the identity of the proper party, PERB would have been named as a respondent to the agency appeal. Because we find that the K.S.A. 2000 Supp. 60-215(c) requirements were satisfied, amendment of PSU/KNEA’s case caption relates back to the date of filing.
It is important to note that we do not suggest that the KJRA should always be supplemented by Chapter 60 rules of procedure. Instead, our application of specific rules of civil procedure to agency appeals is narrowly tailored to (1) require a case caption under K.S.A. 60-210(a) in a petition for judicial review of an agency action, (2) permit amendment to the case caption of a petition for judicial review of an agency action to add or substitute a party under K.S.A. 2000 Supp. 60-215(a), and (3) allow for relation back of an amendment of a case caption of a petition for judicial review if the statutory requirements of K.S.A. 2000 Supp. 60-215(c) are satisfied. We find it necessary to supplement the KJRA with these provisions of Chapter 60 because a case caption is a logical necessity that is not provided for in the KJRA.
We next consider whether PSU/KNEA’s petition was otherwise sufficient to confer jurisdiction on the trial court. This court has the duty to question jurisdiction on our own initiative. See State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).
In reaching the issue of whether PSU/KNEA’s petition conferred jurisdiction on the trial court, we must first determine whether a petition for judicial review of an agency decision is jurisdictional. The University of Kansas court declined “to treat the specificity requirement under K.S.A. 77-614(b) as a jurisdictional rule” and instead adopted the standard of notice pleading found under the general civil code for the review of agency decisions. 20 Kan. App. 2d at 357.
The University of Kansas opinion was criticized by then Chief Judge Brazil in a concurring opinion to Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739, 923 P.2d 78 (1996). Chief Judge Brazil observed that an inherent problem with the University of Kansas court’s analogy to Chapter 60 cases “is that the very issue involved is whether, pursuant to the KJRA’s directive, administrative agency actions are to employ the same pleading procedures as general civil cases.” 22 Kan. App. 2d at 750 (Brazil, C.J., concurring).
We agree with Chief Judge Brazil’s concurring opinion that the issue is essentially one of statutory construction. The KJRA established the exclusive means of judicial review of agency action. K.S.A. 77-606. The requirements for a petition for judicial review under the KJRA are contained at K.S.A. 77-614. K.S.A. 77-614 sets forth the pleading requirements of a petition for judicial review:
“(b) A petition for judicial review shall set forth:
(1) The name and mailing address of the petitioner;
(2) the name and mailing address of the agency whose action is at issue;
(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;
(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;
(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;
(6) the petitioner’s reasons for believing that relief should be granted; and
(7) a request for relief, specifying the type and extent of relief requested.”
Stating that the KJRA contemplates more than the mere notice pleading that is permitted under the rules of civil procedure, Professor Ryan noted the following in his authoritative analysis of the KJRA’s petition for judicial review:
“Obviously, the KJRA contemplates a petition that goes beyond the simple ‘notice’ petition which was conceptually the cornerstone of the new Code of Civil Procedure a few decades ago in this state. The reason is quite simple. By having a universal remedy that is universally available under one form of action no matter what type of agency action is challenged, the petition itself becomes significant in terms of identifying the type of agency action challenged. It is important to know whether the agency action is basically a rule challenge or is appeal of a specific order. One reason is critical. The timeliness for filing the different types are significantly different . . . . In addition, because the remedies under K.S.A. 77-622 constitute the broad range of all remedies conceptually available, then the kind of agency action complained of need be identified as well as the kind of relief requested. In other words, specificity in pleading is necessary to provide a more manageable framework for processing the petition within this ‘universal’ appeal structure.” Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 67 (1985).
As Professor Ryan’s analysis indicates, specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought.
Although different, the petition for judicial review under the KJRA serves a similar function to the notice of appeal in general civil cases. In such cases, it has long been the rule that our appellate courts lack jurisdiction to consider rulings which are not identified in the notice of appeal. See Hess v. St. Francis Regional Med. Center, 254 Kan. 715, Syl. ¶ 1, 869 P.2d 598 (1994); State v. Marble, 21 Kan. App. 2d 509, 519, 901 P.2d 521, rev. denied 258 Kan. 861 (1995).
We reject the holding in University of Kansas that the petition for judicial review is not jurisdictional. Instead, we hold that the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.
The next question is whether PSU/KNEA’s petition for judicial review strictly complied with the pleading requirements of the KJRA so as to confer jurisdiction on the district court. On appeal, KBR/PSU and KDHR argue that PSU/KNEA’s petition for judicial review did not strictly comply with K.S.A. 77-614(b)(2) because the petition does not state the name and mailing address of the agency whose action is at issue.
PSU/KNEA’s petition sets forth the following:
“3) Review is requested of a decision of tire Public Employee’s Relations Board (TERB’) journalized on April 12, 2000, and entitled Amended Final Order including Notice of Right to Seek Judicial Review. PERB is a state agency under the Kansas Department of Human Resources ('Respondent Agency’), whose mailing address is 401 S.W. Topeka Boulevard, Topeka, Kansas 66603-3182, the head of which agency is Richard E. Beyer, Secretary.
“4) The parties before PERB were the Petitioner and the employer Respondents identified herein who are obligated to meet and confer over conditions of employment . . . .”
The appellees contend that the petition does not strictly comply with K.S.A. 77-614(b)(2) because the petition names KDHR as the “Respondent Agency” and lists KDHR’s mailing address.
We find that PSU/KNEA strictly complied with K.S.A. 77-614(b)(2) in that the petition for judicial review clearly identifies PERB as the agency whose action is at issue. The petition specifically requests review of PERB’s decision. Moreover, although the petition lists KDHR’s mailing address, this address is the same one PERB used in designating its agent. We will not allow PERB to benefit from the misleading notice of right to seek judicial review by finding that PSU/KNEA failed to strictly comply with the pleading requirements of the KJRA. Instead, we find that PSU/KNEA strictly complied with the pleading requirements of K.S.A. 77-614(b) so as to confer jurisdiction on the trial court.
As a result, the trial court erred in finding that it lacked subject matter jurisdiction, and we remand the case to the district court for further proceedings. In light of this, decision, it is unnecessary to address PSU/KNEA’s alternative argument that the case caption was sufficient to confer jurisdiction on the district court.
Reversed and remanded for further proceedings. | [
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Wahl, J.:
The State Insurance Fund of Oklahoma (Fund) appeals the decision of the Kansas Workers Compensation Board (Board), claiming the Board did not have personal jurisdiction over the Fund.
The underlying facts giving rise to this case are not disputed and are well summarized in the Board’s decision:
“Claimant [Earl Abbey], a craft inspector, was hired by respondent [Cleveland Inspection] to perform work in Roswell, New Mexico. Claimant testified he was first contacted by telephone by respondent’s representative, Jerry Lorett, on October 4, 1995, while claimant was at home in Hutchinson, Kansas. During that telephone conversation', Mr. Lorett offered claimant a job with respondent, and claimant accepted. It was agreed that claimant would report to work at 7:00 a.m. on October 6, 1995, in Roswell, New Mexico. Claimant’s pay started from the time he left Hutchinson, Kansas. Claimant departed Hutchinson, Kansas, on October 4,1995. He traveled to Roswell, New Mexico, arriving there the evening of October 5,1995. He reported-to the offices of respondent in Roswell, New Mexico, contacting B. F. Sadler, the chief inspector for respondent in that area. Claimant was provided specific construction specifications and certain agreements between respondent and Mid-America Pipeline Company, the general contractor on the job. Claimant immediately began working for respondent in Roswell, New Mexico.
“On October 12,1995, while working, claimant stepped into a hole and twisted his ankle. He also injured his lower back.”
Facts dealing with the nature and extent of Abbey’s injury or disability, as well as his entitlement to outstanding medical expenses and future medical treatment, were resolved by the parties and need not be addressed in this appeal.
The Fund initially paid workers compensation benefits to Abbey because it believed Abbey was employed in Oklahoma. However, the Fund terminated these benefits after determining Abbey was not employed in Oklahoma and it did not cover the accident.
The policy issued to Cleveland required payment of benefits under the Oklahoma workers compensation laws. The “submission to jurisdiction” clause of the policy applies to Oklahoma. Robert Sisco, an underwriter manager who oversees the activities of the underwriting department for the Fund, testified the Fund was organized under the laws of the State of Oklahoma in 1933 as an insurance company that provides workers compensation insurance for employers of Oklahoma. He testified the Fund is not authorized or qualified to transact any type of business in Kansas nor has it transacted any business with any Kansas entity that issues insurance policies to Oklahoma insureds.
Counsel for the Fund appeared at the preliminary hearing held June 13,1996, to malee a special appearance on behalf of the Fund and raised the issue of personal jurisdiction and insurance coverage.
The administrative law judge’s order of May 18, 2000, awarded compensation to Abbey against both Cleveland Inspection and the Fund for the injury. However, on May 25,2000, the administrative law judge filed a nunc pro tunc order removing the Fund from the award.
Cleveland Inspection filed a timely application for Board review on whether the parties are covered by the Kansas Workers Compensation Act (Act) and whether K.S.A. 44-506 requires the employment contract to be litigated in Oklahoma.
The Board affirmed the administrative law judge’s award but reversed the nunc pro tunc order removing the Fund from the award. The Board found that both Cleveland Inspection and its insurance carrier, the Fund, were subject to the provisions of the Act.
The Fund filed a timely notice of appeal. The Fund argues Kansas does not have personal jurisdiction over it. We agree.
Jurisdictional questions are questions of law over which appellate review is unlimited. Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996).
Personal jurisdiction is defined as the court’s power over the defendant’s person and is required before the court can enter a judgment. Acquisition of personal jurisdiction has both statutory and constitutional dimensions. In re Marriage of Salas, 28 Kan. App. 2d 553, 555, 19 P.3d 184 (2001).
Two questions must be addressed to determine whether the Board had personal jurisdiction. First, is there a specific statutory grant of jurisdiction, i.e., does it fall under any of the provisions of K.S.A. 60-308, the Kansas long arm jurisdiction statute? Second, if any specific statutory provisions or long arm provisions are met, would the exercise of personal jurisdiction by die Board over the Fund afford the Fund due process of the law under the Fourteenth Amendment to the United States Constitution? Davis v. Grace, 4 Kan. App. 2d 704, 707-08, 610 P.2d 1140 (1980).
Considering the specific statutory grant of jurisdiction, that authority must arise from the Act itself and not from the long arm statute because the rules of civil procedure are not applicable in workers compensation proceedings. Waln v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 731, 861 P.2d 1355 (1993). “[T]he Workers’ Compensation Act is complete and exclusive within itself in establishing procedures covering every phase of the right to compensation, and such procedures are not subject to supplementation by rules borrowed from the Code of Civil Procedure.” Crow v. City of Wichita, 222 Kan. 322, 332, 566 P.2d 1 (1977).
The Act addresses jurisdiction over insurance companies for liability under the Act. K.S.A. 44-559 provides as follows:
“Every policy of insurance against liability under this act shall be in accordance with the provisions of this act and shall be in a form approved by the commissioner of insurance. Such policy shall contain an agreement that the insurer accepts all of the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance maybe entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer.”
Under the statute, only insurance companies organized under Kansas law or authorized to transact business in Kansas and write such insurance in Kansas submit to the jurisdiction of Kansas.
The Board found that the Fund was not organized under the laws of the State of Kansas and is not authorized to transact business in Kansas. Therefore, the Board lacked authority under K.S.A. 44-559 to exercise jurisdiction over the Fund.
K.S.A. 44-506 confers jurisdiction in some cases where the injury occurs outside of Kansas. Under K.S.A. 44-506, the general rule is that the “act shall not be construed to apply to business or employment which, according to law, is so engaged in interstate commerce as to be not subject to the legislative power of the state, nor to persons injured while they are so engaged.” Two exceptions apply “to injuries sustained outside the state where: (1) The prin cipal place of employment is within the state; or (2) the contract of employment was made within the state, unless such contract otherwise specifically provides.”
Here, K.S.A. 44-506 is applicable only to Cleveland Inspection and not the Fund. It was Cleveland Inspection which contacted Abbey by telephone about an employment opportunity. During the telephone conversation, Cleveland Inspection offered employment that was accepted.
“The basic principle is that a contract is ‘made’ when and where the last act necessary for its formation is done. Smith v. McBride & Dehmer Construction Co., 216 Kan. 76, 530 P.2d 1222 (1975). When that act is the acceptance of an offer during a telephone conversation, the contract is ‘made’ where the acceptor speaks his or her acceptance. Morrison v. Hurst Drilling Co., 212 Kan. 706, Syl. ¶ 1, 512 P.2d 438 (1973); see Restatement (Second) of Contracts, § 64, comment c (1974).” Shehane v. Station Casino, 27 Kan. App. 2d 257, 261,3 P.3d 551 (2000).
While Shehane maybe consistent in finding jurisdiction over the employer, Cleveland Inspection, it does not subject the Fund to jurisdiction in Kansas. There is no statutory basis under the Act for personal jurisdiction over the Fund.
Even were there some statutory basis under the Act for personal jurisdiction, the exercise of personal jurisdiction by Kansas must still afford the Fund due process of law under the Fourteenth Amendment to the United States Constitution. See Kulko v. California Superior Court, 436 U.S. 84, 91, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978).
“The Fourteenth Amendment’s due process clause limits the forum state’s assertion of personal jurisdiction over nonresidents. Minimum contacts with the forum state must exist so that tire assertion of personal jurisdiction will not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of die activity in the forum state, the relative ■convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945).” Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 779-80, 740 P.2d 1089 (1987).
The Fund fails to have the minimum contacts with Kansas as the forum state to satisfy fair play and substantial justice. The Fund has not engaged in any activity to purposely subject itself to juris diction in Kansas. It was organized under Oklahoma laws to be an insurance company providing workers compensation insurance for employers of Oklahoma. The Fund is not authorized or qualified to transact any type of business in Kansas nor has it transacted any type of business in Kansas. It has not transacted any business with any Kansas entity that issues insurance policies to Oklahoma insureds. The Fund made no contacts with Abbey regarding his employment.
Accordingly, the Board did not have personal jurisdiction over the Fund.
A judgment rendered by a court without personal jurisdiction over a defendant is void — a nullity. See Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
Since Kansas lacks personal jurisdiction in this case as to the Fund, the other issues herein need not be resolved on the merits.
The judgment of the Board against the Fund is vacated. | [
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Johnson, J;
Michael J. Anthony pled guilty to a third offense of driving under the influence of alcohol (DUI), in violation of what is now K.S.A. 8-1567 (defendant was charged under K.S.A. 2000 Supp. 8-1567; substantive amendments by the legislature in 2001 to the DUI statutes are not relevant to the issues in this appeal). The district court imposed the maximum imprisonment sentence of 12 months. After serving the mandatory minimum of 90 days in jail, Anthony filed a motion to modify his sentence by granting him probation. Following a hearing, the district court found it lacked jurisdiction to modify Anthony’s sentence and denied his motion. We reverse and remand for a determination upon the merits of Anthony’s motion.
The sole issue on appeal is whether a district court had jurisdiction to modify a sentence imposed under K.S.A. 8-1567(f). The district court, apparently relying on State v. Smith, 26 Kan. App. 2d 272, 981 P.2d 1182, rev. denied 268 Kan. 854 (1999), determined it had no jurisdiction to consider Anthony’s motion. The issue before the court is purely legal in nature. We are not bound by the decision of the district court on questions of law. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Anthony contends the plain language of the statute necessarily allows the district court to modify his sentence. Anthony was sentenced under K.S.A. 8-1567(f), which provided in relevant part:
“On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment . . . . The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment.” (Emphasis added.)
Prior to July 1, 1993, the district court had considerable discretion in sentencing a convicted felon. Within the parameters set for each class of felony, the sentencing judge selected the minimum and maximum terms of an indeterminate sentence and decided, inter alia, whether to imprison the felon or release him or her on probation. K.S.A. 1992 Supp. 21-4603(2). Further, the district court retained jurisdiction for 120 days following sentencing to impose a less severe sentence. K.S.A. 1992 Supp. 21-4603(4). With the passage of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the district court’s discretion as to the duration and disposition of a sentence is severely restricted by the legislative designation of a presumptive sentence. After imposing a guidelines sentence, the district court’s power to modify it is restricted to correcting arithmetic or clerical errors. K.S.A. 21-472l(i). If the presumptive sentence is imprisonment, the felon is transferred to die custody of the Secretary of Corrections, K.S.A. 21-4621, and good time credits are earned or forfeited pursuant to rules promulgated by the Secretary. K.S.A. 2001 Supp. 21-4722(c).
The State argues that Smith is controlling. In that case, the defendants were convicted of criminal deprivation of property in violation of K.S.A. 21-3705. At the time of their offenses, criminal deprivation of a motor vehicle was a nongrid felony that carried a prison term of no less than 30 days for a first offense to a maximum of 1 year. The statute was quite similar to 8-1567 in that it required the person convicted to serve the mandatory minimum sentence before he or she would be eligible for release on probation or suspension or reduction of sentence or parole. K.S.A. 21-3705(b). The defendants filed motions to modify their sentences which the district court denied for lack of jurisdiction. The Smith panel found that the KSGA eliminated the district court’s authority to modify a sentence, citing State v. Miller, 260 Kan. 892, 896-97, 926 P.2d 652 (1996), and K.S.A. 21-4721(i). 26 Kan. App. 2d at 273. The panel also held that
“[t]he plain language of K.S.A. 21-3705 does not authorize the district court to modify a sentence but merely states a defendant who is convicted of criminal deprivation of a motor vehicle must serve the mandatory jail time before he or she is eligible for probation, suspension or reduction of his sentence, or parole.” 26 Kan. App. 2d 272, Syl. ¶ 2.
Anthony argues Smith is inapplicable because his sentence was imposed under 8-1567 and this court has previously determined that the sentencing guidelines do not apply to felony DUI sentences. See State v. Webb, 20 Kan. App. 2d 873, 876, 893 P.2d 255 (1995); State v. Binkley, 20 Kan. App. 2d 999, 1001, 894 P.2d 907 (1995). However, this ignores the fact that under the version of K.S.A. 21-4704(i) in effect at the time of the crime for which Smith was convicted, felony criminal deprivation of property was exempted from the sentencing grid in the same manner as felony DUI. (In 2001, the legislature amended 21-4704[i], deleting 21-3705 as an exemption and adding 21-3412a[b] [3] [domestic battery].) K.S.A. 21-4704(i) provided:
“The sentence for the violation of the felony provision of K.S.A. 8-1567 [DUI] and subsection (b) of K.S.A. 21-3705 [criminal deprivation of property], and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-4707 and amendments thereto. Notwithstanding the provi sions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 8-1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall not be served in a state facility in the custody of the secretary of corrections.”
Therefore, if the modification restrictions of 21-4721(i) applied to 21-3705(b), they must also apply to the other nongrid felony, DUI.
Smith intimates that a nongrid felony sentence is imposed under the KSGA, despite the language of 21-4704(i) excluding such a sentence from the KSGA grid. It is conceded that 21-4704(i) specifically refers to only two exempted sections, 21-4704 and 21-4707. However, applying only a portion of the KSGA provisions to nongrid felonies distorts tire overall purpose and scheme of the KSGA. Nongrid felony sentences are simply different from grid sentences. Here, the sentencing judge had broad discretion on the term of incarceration and the manner of serving the sentence. Anthony was never transferred to the custody of the Secretary of the Corrections. There is apparently no mechanism whereby Anthony may earn good time credits. If Anthony “flattens” the maximum 12-month term of incarceration, there would be no post-release supervision or any means to coerce payment of a fine and costs. Cf. K.S.A. 8-l567(g) (the legislature amended this subsection in 2001 to provide for transfer of custody to the Secretary of Corrections following the term of imprisonment and post-release supervision for a fourth or subsequent conviction). The rationale for divesting the district court of jurisdiction to modify a grid sentence is not applicable to a nongrid felony sentence.
The legislature left nongrid felons in local custody. If the district court does not retain jurisdiction, there is no entity in control of the sentence or the release therefrom. If the legislature had intended this result, it is difficult to understand why the DUI statute provides that a person is not eligible for a reduction of sentence or parole from sentence prior to serving 90 days. The statute could simply state that the district court must impose a minimum sentence of 90 days. The question then is, how does a reduction of sentence occur without anyone having jurisdiction to modify the sentence or who is empowered to parole a nongrid felon? If reasonably possible, this court is to avoid construing a statute in a manner which would render part of that statute surplusage. State v. Rush, 255 Kan. 672, 677, 877 P.2d 386 (1994). We find that the district court retains jurisdiction to modify a nongrid felony DUI sentence.
Reversed and remanded for a determination on the merits of the motion to modify sentence. | [
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Johnson, J.:
Catherine Estrada Rodarte sustained serious injuries when she drove a vehicle off the highway and struck a guardrail. Proceeding on the theory that a phantom motorist caused the accident, Rodarte filed this lawsuit against her insurer, State Farm Mutual Automobile Insurance Company, under ber policy’s uninsured motorist (UM) coverage. Rodarte also claimed the guardrail was improperly constructed and included the Kansas Department of Transportation (KDOT), Ashland-Warren, Inc., and Ashland Oil, Inc. as defendants. Rodarte setded with KDOT. The district court granted Ashland’s motion for summary judgment on the guardrail issue, but Rodarte’s UM claim proceeded to juiy trial. The jury found neither Rodarte nor the phantom driver at fault; Rodarte’s UM claim failed. Rodarte appeals the trial court’s granting of summary judgment and the trial court’s instructions to the juiy. State Farm cross-appeals, challenging the district court’s denial of its second motion for summaiy judgment, its motion in limine, and its motion for directed verdict. We affirm.
UNINSURED MOTORIST CLAIM
Facts
The accident occurred on April 9, 1996, during morning rush hour, as Rodarte was northbound on U.S. Highway 69 (US 69) in Johnson County. There were three witnesses to the accident, each giving slightly different versions of the events.
James Bell noticed Rodarte’s vehicle when it was in front of him in the center lane of traffic on US 69. Bell saw Rodarte’s car turn sharply across the left lane and into the median. Rodarte then hit the guardrail, and the vehicle flipped upside down. Bell did not see another vehicle do anything that would have caused Rodarte to steer into the left lane and into the median. Bell, however, believed that another car struck Rodarte’s vehicle because it turned so sharply and left the roadway at nearly a right angle.
Janice Schnuelle was driving in the left lane of traffic. Schnuelle claimed that she saw Rodarte’s vehicle speed past her in the center lane, then apply her brakes and move into the left lane, in front of the car ahead of Schnuelle. The next thing Schnuelle remembered was Rodarte going into the median. Schnuelle believed Rodarte braked because she was coming upon slower moving traffic. Schnuelle testified that she did not see any vehicle cut in front of Rodarte.
Kelly Kellerman was driving in the left lane, directly behind Schnuelle. Kellerman first noticed Rodarte’s car when it was in the left lane, a few cars ahead of Kellerman. Kellerman, however, claimed that she saw another car merge into the middle lane, causing two other cars in that lane to stop. That car then moved into the left lane, again causing traffic to stop. Kellerman did not see the driver of that car use a turn signal when changing lanes. When the vehicle went into the left lane, the phantom motorist slammed on the brakes. Kellerman could not give a description of this car or say whether this car merged directly in front of Rodarte or in front of a different car. This caused the other vehicles in the left lane to brake. Kellerman had to steer to the left shoulder to avoid hitting Schnuelle. Before swerving onto the shoulder, however, Kellerman saw Rodarte apply her brakes and lose control of her vehicle.
Failure to Give Jury Instructions
Rodarte asserts the district court erred in failing to instruct the jury as she had requested. The trial court is required to properly instruct the jury on a party’s theoiy 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. Where the instructions 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 jury could not reasonably have been misled by them, the instructions will be approved on appeal. Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000).
The jury was instructed on the issues in the following manner:
“The plaintiff, Catherine Estrada Rodarte, claims that she sustained injuries and damages due to the fault of a phantom driver. The plaintiff claims the phantom driver was negligent in the following respects:
“I. Failed to turn its vehicle to the left unless the movement could be done with reasonable safety.
“2. Failed to use ordinary care in keeping its vehicle under control and driving within his or her range of vision so that it could be slowed, stopped or turned aside to avoid colliding with another vehicle using the highway.
“3. Failed to keep a proper lookout for vehicles which may affect its use of the roadway, including a lookout to the rear, since its movements may have affected the operation of vehicles to the rear.
“The plaintiff has the burden to prove that it is more probably true than not that she sustained injuries and damages caused by any one or more of the claimed negligent acts or omissions of the phantom driver. Agreement as to which specific negligent act or omission is not required.
“Defendant State Farm claims that the plaintiff was at fault in causing this accident and that she was negligent in the operation of her vehicle because she:
“a. Failed to keep a proper lookout;
“b. Failed to keep proper control of her vehicle so as to slow, stop or turn aside to avoid an accident;
“c. Was traveling at a speed in excess of the posted speed limit;
“d. Was traveling at a speed that was not safe and appropriate for the conditions that existed as plaintiff came upon slower moving traffic;
“e. Was following another vehicle more closely than was reasonable for the existing conditions.
“The defendant has the burden to prove its claims of fault on the part of the plaintiff are more probably than not true.”
Rodarte appeals the district court’s rulings on two of her proposed instructions, which related to a motorist’s duty to drive his or her vehicle within a single lane and to signal while changing lanes. PIK Civ. 3d 121.23(a) states:
“The laws of Kansas provide that whenever any roadway has been divided into two or more clearly marked lanes for traffic, a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.”
While the district court did not include this instruction in the “issues” instruction as Rodarte requested, PIK Civ. 3d 121.23 was given to the juiy in a separate instruction. Rodarte argues the court’s placement of this instruction was prejudicial. She contends that because the instruction was not one of the listed acts of negligence from which the jury could choose, the jury would not have understood that the instruction applied to the phantom motorist’s actions. We disagree.
Considering the jury instructions together and reading them as a whole, we find the jury could not reasonably have been misled as to its application and the placement of Rodarte’s requested in struction did not prejudice the presentation of her theoiy of recovery.
The district court declined to include Rodarte’s second requested instruction, PIK Civ. 3d 121.26(a), which states:
“The laws of Kansas provide that no person shall turn a vehicle or move right or left upon a roadway unless and until the movement can be made with reasonable safely. No person shall turn any vehicle without giving an appropriate signal. A signal of intention to turn or move right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.”
Rodarte argues that the court’s failure to give this instruction was prejudicial because it contains two separate acts of negligence: (1) moving the vehicle to the left without ascertaining it is safe to do so, and (2) failing to signal an intent to change directions.
As State Farm points out, the first part of 121.26 is substantially covered by 121.23. Both instructions discuss essentially the same duty of a motorist to stay in his or her lane until a lane change can be effected with reasonable safety. Error cannot be predicated on the trial court’s refusal to give an instruction when its substance is adequately covered in other instructions. Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991).
The remaining question is whether the district court erred in failing to give an instruction on the phantom motorist’s alleged failure to use his or her turn signal while changing lanes. Witness Kellerman testified that she did not see the phantom motorist use his or her turn signal. However, both Schnuelle and Bell testified that they did not see any phantom motorist. The district court determined that there was not sufficient evidence in the record to support the turn signal instruction. Rodarte argues that, in light of Kellerman’s testimony, such an instruction was warranted. State Farm counters that Kellerman’s testimony that she did not see the phantom motorist use a turn signal does not necessarily mean that no turn signal was used.
Regardless of whether Kellerman’s testimony provided sufficient evidence to justify the district court’s inclusion of 121.26 in the jury instructions, it is clear that Rodarte was not prejudiced. The jury was given the opportunity to find negligence based upon the phan tom’s changing lanes when the movement could not be done with reasonable safety, but declined to do so. Therefore, if the phantom safely changed lanes, his or her failure to signal the lane change would not, standing alone, constitute negligence. Cf., Every v. Jefferson Ins. Co. of N.Y., 4 Kan. App. 2d 715, 718-19, 610 P.2d 645 (1980) (holding unsubstantiated evidence that motorist failed to signal prior to turning could not constitute proximate cause).
The instructions, considered together and read as a whole, fairly instructed the jury on the law governing the case and adequately presented Rodarte’s theory of recovery. The jury’s verdict is affirmed.
GUARDRAIL CONSTRUCTION CLAIM
Facts
In 1974, Reno Construction Company, Inc., (Reno) was awarded a contract by the State Highway Commission of Kansas (now KDOT) for a project at the accident site that involved mostly surfacing, but included the construction of the guardrails protecting five bridge piers in the median between the northbound and southbound lanes of US 69. Ashland-Warren was a wholly owned subsidiary of Ashland Oil; however, it was dissolved in 1983 and no longer has the capacity to be sued. See K.S.A. 17-6807; First American Investment Group, Inc. v. Henry, 11 Kan. App. 2d 671, 675-76, 732 P.2d 792 (1987). Ashland Oil, now known as Ashland, Inc. (Ashland), is the successor in interest to Reno. Tucker Construction of Moran, Inc., was the subcontractor that actually installed the guardrails. The project was completed in 1976, and the work was accepted by the State. Reno had no responsibility for or involvement in the design of the project or its specifications. According to KDOT, the guardrails were constructed in accordance with all applicable plans, drawings and specifications.
Rodarte, however, alleged in her petition that Reno negligently performed its obligations under the contract by failing to install the guardrails in accordance with the contract specifications and by negligently failing to warn KDOT that the guardrail it did install was negligently designed. Rodarte claims a different guardrail design was called for by the contract specifications. She argues that the design of the guardrails that were installed at the accident site caused her vehicle to become airborne and flip. Rodarte believes the injuries she sustained in the accident are attributable, in part, to the allegedly faulty construction of the guardrails.
A KDOT document entitled “Protective Steel Plate Guard Fence at Bridge Piers” contains the relevant specifications for the guardrails at the accident site. This document is dated September 15, 1970, and the illustrative drawings show the proper design for guardrails at both a single column pier and a 2-column pier. The guardrails depicted are an “open-end” design; that is, the ends of the guardrails on either side of the columns do not connect with one another. Both drawings contemplate a roadway containing a shoulder and a wide unpaved median. The parties agree that the design used at the accident site was the 2-column configuration.
This document was updated in 1972 and included additional specifications for a 6-column pier over a narrow, hard-surfaced, curbed median. This configuration features a “closed-end” guardrail design, in which the guardrails on either side of the columns are joined at both ends, forming a “buffer end section.” The drawing contains a note stating, in part: “If any of these conditions vary, the lengths and radii shown can or will vary. The general layout will, however, be used for all conditions.”
Rodarte argues that the specifications called for the closed-end guardrail design to be used at the accident site because the overpass contains a multiple-column pier. Reno, however, installed the open-end guardrail as depicted in the 2-column configuration. This discrepancy is the basis for Rodarte’s negligence claim against Ashland.
Ashland maintains that Reno fully complied with the contract provisions and specifications. This contention is supported by both KDOT and the affidavit of William M. Lackey, the Assistant Secretary of Transportation and State Transportation Engineer. Lackey was also the division engineer who approved Reno’s work for the State in 1976. Ashland points out that the 2-column configuration contains a note reading: “For more than two columns this dimension shall be increased accordingly.” Thus, the 2-column design contemplates use with multiple-column piers. Moreover, Ashland argues that the closed-end design is appropriate where the median is narrow and curbed, whereas, at the accident site, the opposing lanes of traffic were separated by shoulders on both sides and a wide, unpaved median, as depicted in the 2-column design specifications.
Ashland filed a motion for summary judgment on the grounds that it is immune from suit pursuant to K.S.A. 68-419a(a). Ashland claimed the work it performed was accepted by KDOT and conformed with the contract provisions and specifications. Consequently, Ashland argued Rodarte’s claim against it is barred.
In her response to Ashland’s motion for summary judgment, Rodarte included an affidavit from William H. Wendling, an engineer and expert in the area of guardrail design. After examining the KDOT specifications, Wendling opined that by 1972, the closed-end design would have been required by the State at the accident site. Consequently, despite die State’s acceptance of Reno’s work, the open-end guardrails did not conform to the contract specifications. The district court, however, found Wendling’s affidavit to be too speculative and conclusory to establish a disputed issue of material fact and granted Ashland’s motion for summary judgment. Rodarte filed a motion for reconsideration which was denied by the district court.
Summary Judgment
Rodarte argues that the district court erred in granting summary judgment in favor of Ashland. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. K.S.A. 2000 Supp. 60-256(c). The trial court must resolve all facts and reasonable inferences in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, the 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. The appellate courts apply the same rules. Where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
The basis for the district court’s decision was that Ashland was immune from suit.
“(a) Whenever any public officer, as defined by K. S .A. 75-4301, shall enter into a contract on behalf of Hie state or any agency or instrumentality thereof for the construction of any highway or turnpike, in accordance with the laws of this state, the contractor shall not be liable for damages arising out of design defects involving the construction of such highway or turnpike resulting in injury to persons or damage to property, occurring after completion of the contract, and acceptance thereof by such public officer, if the contractor has complied with all contractual provisions and specifications imposed by state and federal agencies with respect to such highway or turnpike. Nothing contained in this section shall be construed as abrogating, limiting or otherwise affecting any cause of action accruing to the state or any agency or instrumentality thereof which was a party to such contract.” K.S.A. 68-419a.
Apparently, there is no case law applying the highway contractor immunity statute since its enactment in 1974. However, the plain language of the statute reveals a simple 3-part test. A contractor is immune from liability for damages arising out of design defects involving the construction of a highway or turnpike if: (1) the injury to persons or damage to property occurred after the construction was complete; (2) the contractor’s work was accepted by the appropriate public official; and (3) the contractor complied with all contractual provisions and specifications imposed by state and federal agencies with respect to such highway or turnpike. K.S.A. 68-419a(a).
There is no dispute that Rodarte’s injuries, sustained in 1996, post-dated the 1976 completion of the construction project. Rodarte has not proffered any evidence to controvert that KDOT accepted the work of Reno and its subcontractors. Ashland established that fact through the Notice of Acceptance, signed by KDOT’s field engineer and division engineer (W. M. Lackey), and issued to Reno in August of 1976. The question, then, is whether Reno complied with all contractual provisions and specifications imposed by KDOT.
Neither party has provided an actual contract between the State and Reno that specifically states which guardrail design illustrated on the specifications sheet was to be constructed at the accident site; perhaps none exists. However, the affidavit of the division engineer on the project unequivocally states that “[t]he work of [Reno], and its subcontractors on the project, including the median and guard rail construction work by [Reno], or by its subcontractor [Tucker], was accepted by the State Highway Commission of Kansas and/or the Kansas Department of Transportation as being in compliance with the contract provisions and specifications for the project.”
Rodarte asserts the affidavit did not establish the fact that the work conformed with specifications because the affiant was not the field engineer who actually inspected the work and, therefore, his opinion is based upon hearsay. This argument is not persuasive because both the field engineer and the affiant, as division engineer, were required to sign the notice of acceptance issued to Reno. Certainly, the supervising engineer was qualified to testify that KDOT had accepted the work as conforming to the contract terms and specifications.
Rodarte offered the affidavit of her expert, William H. Wendling, which stated the closed end design “[w]as the design which was required to be used at this location (accident scene) and the configuration stated in KDOT’s response to Plaintiff s Second Interrogatory was not the correct configuration; and another instance of a Contractor performing work not in accordance with the plans and KDOT accepting the work as completed.” Rodarte insists this places in dispute whether KDOT accepted non-conforming work. However, Standard Specification 105.03, Standard Specifications for State Road and Bridge Construction (1973), provides:
“CONFORMITY WITH THE PLANS AND SPECIFICATIONS — Afl work performed and ail materials furnished shall be in reasonably close conformity with the lines, grades, cross sections, dimensions, and material requirements, including tolerances, shown on the plans or indicated in the specifications.
“In the event the Engineer finds the materials or the finished product in which the materials are used not within reasonably close conformity with the plans and specifications but that reasonably acceptable work has been produced, he shall then make a determination if the work shall be accepted and remain in place: In that event, the Engineer will document the basis of acceptance by contract modification which will provide for an appropriate adjustment in the contract price for such work or materials as he deems necessary to conform to his determination based on engineering judgment.
“In the event the Engineer finds the materials or the finished product in which the materials are used or the work performed are not in reasonably close conformity with the plans and specifications and have resulted in an inferior or unsatisfactory product, the work or materials shall be removed and replaced or otherwise corrected by and at the expense of die Contractor.”
KDOT’s notice of acceptance issued to Reno, as reflected in the record, does not indicate that the basis of acceptance was pursuant to a contract modification. Rodarte proffers no other evidence that the engineer documented a nonconforming acceptance.
Rodarte failed to establish a material factual dispute with respect to Reno’s compliance with the relevant contractual provisions and specifications. Specifically, she presented no evidence that Reno installed the 2-column design in contravention of its agreement with the State. While the Wendling affidavit calls into question which plans KDOT should have required, Rodarte provides no affirmative evidence that Reno failed to comply with the contract provisions and specifications KDOT did require. In other words, the Wendling affidavit speaks to KDOT’s potential liability, not Ashland’s.
The obvious purpose behind K.S.A. 68-419a is to shield contractors from liability when an accident results from a completed highway project that the contractor had no role in designing. Such protection is logical, practical, and necessary. Where, as here, the contractor merely followed the specifications given to it by the State, it cannot be held hable for damages, even if the State’s design was flawed. The immunity under K.S.A. 68-419a applied to Ash-land; summary judgment was appropriate.
CROSS-APPEAL
State Farm cross-appeals the district court’s denial of various motions, all of which essentially assert that Kellerman should not have been allowed to testify that there was a phantom motorist whose erratic, unsafe driving caused the accident. State Farm won the jury trial; Rodarte is not entitled to a new trial; the cross-appeal is moot. “ ‘The court is statutorily and constitutionally without authority to render advisoiy opinions in cases found to be moot. A case is moot when no further controversy exists between the parties and where any judgment of the court would be without effect.’ ” In re T.D., 27 Kan. App. 2d 331, 333, 3 P.3d 590, rev. denied 269 Kan. 933 (2000) (quoting State ex rel. Stephan v. Johnson, 248 Kan. 286, Syl. ¶ 3, 807 P.2d 664 [1991]).
Affirmed. | [
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Pierron, J.:
This case comes to us on stipulated facts. Michael Steven Briggs allegedly failed to comply with the terms of his felony probation and appeared for a revocation hearing on January 13, 2000. After hearing the evidence, Judge Carl B. Anderson, Jr., revoked Briggs’ probation and ordered imposition of his original incarceration sentence. After the hearing, Judge Anderson told Briggs: “Have a seat in the hallway, Mr. Briggs, we’ll call for an officer. Consider yourself in custody.” Judge Anderson intended to have Briggs sit in the seating in the eashwest hallway and to wait there until a law enforcement officer arrived to take him to the jail.
The McPherson County District Court does not have full-time on-site security. The court’s normal procedure is to have the defendant sit in the hallway. While the defendant waits, the court calls the McPherson County Law Enforcement Center and has a law enforcement officer come to the courthouse. Upon arrival, the officer places the defendant in handcuffs and transports the defendant to the county jail.
After his instructions from Judge Anderson, Briggs decided he did not like the consequences of waiting for law enforcement officers to arrive, and he fled the courthouse. Authorities captured Briggs approximately 1 month later, and he was charged with four counts of criminal threat (regarding his capture), one count of felony theft, one count of motor vehicle burglary (theft and burglary were the probation violations), and one count of aggravated escape from custody (leaving after the probation revocation hearing). Pursuant to a plea agreement, Briggs pled nolo contendere to one count criminal threat and one count felony theft. The parties agreed to a bench trial on stipulated facts for die aggravated escape from custody charge. The State dismissed the remaining charges.
After reviewing the stipulation of facts, tire trial court found Briggs guilty of aggravated escape from custody. Briggs appeals his aggravated escape from custody conviction. We affirm.
Briggs contends there was insufficient evidence to support his conviction for aggravated escape from custody. He argues he was never in custody.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
The crime of aggravated escape from custody under K.S.A. 2001 Supp. 21-3810 requires that the defendant must have been in “lawful custody” at the time of the escape. The question of whether a defendant was in lawful custody is a question of law for the trial judge to determine. State v. Mixon, 27 Kan. App. 2d 49, Syl. ¶ 5, 998 P.2d 519 (2000). At the hearing on Briggs’ motion to dismiss, the trial court held that Judge Anderson’s order rendered Briggs in “custody” under either K.S.A. 2001 Supp. 21-3809(b)(1) as “any other detention for law enforcement purpose” or K.S.A. 22-2202(9) as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.”
In this case, Briggs was convicted of aggravated escape from custody under K.S.A. 2001 Supp. 21-3810(a)(1) for escaping while held in lawful custody upon a charge or conviction of a felony. K.S.A. 2001 Supp. 21-3809(b)(1) defines “custody”:
“ ‘Custody means arrest; detention in a facility for holding persons charged with or convicted of crimes or charged or adjudicated as a juvenile offender, as defined in K.S.A. 38-1602, and amendments thereto, where the act, if committed by an adult, would constitute a misdemeanor; detention in a facility for holding persons adjudicated as juvenile offenders; detention for extradition or deportation; detention in a hospital or other facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program; commitment to the state security hospital as provided in K.S.A. 22-3428 and amendments thereto; or any other detention for law enforcement purposes. ‘Custody’ does not include general supervision of a person on probation or parole or constraint incidental to release on bail.”
“Custody” is also defined in K.S.A. 22-2202(9) as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.”
This case presents the question of whether Judge Anderson’s order to Briggs, after revoking his probation (“Have a seat in the hallway, Mr. Briggs, we’ll call for an officer. Consider yourself in custody.”), put Briggs in lawful custody for purposes of a conviction for aggravated escape from custody. Answering this question requires an interpretation of the above-quoted statutes. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. See State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).
Several Kansas cases have addressed being in “custody,” but none are directly on point. In State v. Logan, 8 Kan. App. 2d 232, 654 P.2d 492 (1982), rev. denied 232 Kan 876 (1983), Logan went to the police station to inquire why officers were looking for him. The uniformed desk officer, who knew Logan and knew of Logan’s arrest warrant, told Logan he was under arrest. Unfortunately, the officer had a cast on his leg and was only able to walk with crutches. As the desk officer, using the crutches, approached Logan, Logan told him, “Ain’t no cop gonna arrest me like that.” After being told by the officer not to leave, Logan departed in his car but was ap prehended soon thereafter. He was convicted of obstructing official duty.
On appeal, Logan argued he should have been charged with aggravated escape from custody instead of obstruction. The State responded that Logan could not be charged with escape because he was never “in custody” under K.S.A. 21-3809 and K.S.A. 21-3810. The Logan court relied upon several cases demonstrating that in order for a defendant to be “in custody,” the defendant must be arrested which entailed actual or constructive seizure of die defendant. See State v. Parks, 5 Kan. App. 2d 644, 645, 623 P.2d 516 (1981); State v. Williams, 4 Kan. App. 2d 651, Syl. ¶ 3, 610 P.2d 111 (1980); State v. Greenburg, 4 Kan. App. 2d 403, 405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980). The Logan court held:
“In the light of the foregoing, it is clear that appellant was never in custody. Although the desk officer demonstrated authority to detain appellant and his intent to do so, due to his physical condition he could not impose significant restraint on appellant’s ability to leave. The officer never touched appellant. In his own words, he attempted to arrest appellant — but was unable to do so. Appellant could not have been convicted under the escape statute. He was properly charged with obstructing official duty.” 8 Kan. App. 2d at 235.
Both parties cite several escape cases where there was no question a defendant was already in custody but was not restrained or under constant supervision at the time of the escape. See State v. Pichon, 15 Kan. App. 2d 527, 811 P.2d 517, rev. denied 249 Kan. 778 (1991) (prisoner at Lansing Correctional Institution escaped from community center where prisoners were taken to play volleyball); State v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984) (defendant escaped from community corrections facility); State v. Pritchett, 222 Kan. 719, 720, 567 P.2d 886 (1977) (defendant in custody of youth center escaped from hospital after receiving treatment); State v. Jones, 9 Kan. App. 2d 106, 673 P.2d 455 (1983) (defendant in county jail awaiting trial escaped from hospital after receiving treatment).
The Pichón court summarized a clear intent on the part of the legislature to not limit “escape” to situations where a defendant committed to a confinement facility, such as a prison or jail, flees confinement:
“Custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. There is no requirement that the prisoner be constantly supervised or watched over by prison officials. The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.” 15 Kan. App. 2d 528, Syl. ¶ 9.
Briggs relies on Logan in arguing that he was never in custody because no significant restraint had been imposed on his ability to leave. He contends that just like the police officer s command in Logan, the district court’s order that he was in custody was insufficient to place him in custody.
Briggs also argues he does not fall within the catchall clause of “custody” in K.S.A. 2001 Supp. 21-3809(b)(1) involving “any other detention for law enforcement purposes.” He maintains that to allow an escape from custody conviction to stand would isolate the catchall clause from the rest of the statute where an institution had not yet even taken actual or constructive control over him and he had not been substantially detained by law enforcement. Briggs suggests Judge Anderson’s order did not put him in custody, rather it is law enforcement’s execution of the order that creates the custody situation. Consequently, if it was a crime for Briggs to leave the courthouse, it was obstruction of law enforcement’s execution of the order. Briggs characterizes Judge Anderson’s order as a warrant and that a person is not “in custody” until law enforcement execute the warrant. Briggs contends his act of leaving the courthouse made it more difficult for law enforcement to execute Judge Anderson’s order, as contemplated by the crime of obstruction of official duty.
The State responds that Judge Anderson’s order was as explicit as possible when he told Briggs: “Consider yourself in custody.” The State argues there is no question as to Judge Anderson’s intent and, consequently, the order brought Briggs squarely within the meaning of “custody” under either K.S.A. 2001 Supp. 21-3809(b)(1) or K.S.A. 22-2202(9). The State contends Logan is clearly distinguishable because here the order came from a district court judge while Briggs was in the judge’s courtroom and not from a law enforcement officer while at a police station as was the case in Logan. The State also argues Judge Anderson had the inherent power to administer justice and to enforce obedience to the law and that placing Briggs in custody was the exercise of such power.
The State also responds that Briggs’ action does not constitute obstruction of official duty. The State contends the obstruction statute, K.S.A. 21-3808, clearly contemplates action by law enforcement officers, not a judge. The crime of obstruction under K.S.A. 21-3808(a) is “knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.”
After reviewing the record, we conclude the evidence presented in the stipulation of facts was sufficient to support Briggs’ conviction for aggravated escape from custody. Certainly, Judge Anderson’s intention was to place Briggs in custody for transportation to the county jail. Contrary to Briggs’ argument, this was not a situation where the judge’s order was similar to a warrant. Any purpose of a warrant — to bring Briggs before the court — had already had been effectuated prior to Judge Anderson’s order. See Black’s Law Dictionary, 1585 (6th ed. 1990) (“Arrest warrant” defined as court order which “commands law enforcement officer to arrest a person and bring him before magistrate”).
Further, Briggs was in the custody of the court for probation revocation purposes, and the court had never released him from that custody. Briggs stood in Judge Anderson’s courtroom and was informed by a district court judge, not a police officer, that he was in custody. Logan is clearly distinguishable based on the courtroom setting and the command coming from a judge. Briggs should have reasonably understood that he was not free to leave because he was in the custody of the court. The fact that Briggs could not immediately be taken to jail does not alter his custodial situation. Briggs was not free to go. Similar to the escape cases cited herein, there is no evidence Judge Anderson intended to abandon Briggs and allow him to go on his way. Rather, Judge Anderson exercised actual or constructive control over Briggs and restrained his liberty by ordering him to the hall to await law enforcement officials. Briggs was in custody under either K.S.A. 2001 Supp. 21-3809(b)(1) or K.S.A. 22-2202(9).
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Lewis, J.:
The outcome of this appeal validates the sage advice once given by Yogi Berra to the effect that “[i]t ain’t over til it’s over,” and the also famous saying that “[i]t’s not over til the fat lady sings.”
Defendant Rory D. Oliver was convicted of one count of aggravated robbery. In November 1997, the trial court determined that defendant had a criminal history category C and imposed an 85-month prison sentence. Five months later, in March 1998, the State filed a motion to correct an illegal sentence, arguing that several municipal convictions should have been aggregated and resulted in a criminal history category B. In December 2000, the trial court granted the State’s motion and resentenced defendant to 180 months’ imprisonment. Defendant was obviously not pleased with this action and filed the current appeal, alleging the trial court’s latest sentence is illegal.
We agree, vacate defendant’s sentence, and remand the matter with directions.
This rather bizarre scenario was due to the fact that the trial court originally sentenced defendant under a Court of Appeals decision on which a petition for review was granted by the Supreme Court and our decision was reversed.
In State v. Vega-Fuentes, 24 Kan. App. 2d 93, 942 P.2d 42 (1997), rev’d and remanded 264 Kan. 10, 955 P.2d 1235 (1998), this court held that municipal convictions could not be aggregated. The trial court and the State apparently assumed that Vega-Fuentes was the final law on the subject and sentenced defendant by not aggregating the municipal convictions.
The confusion was certainly not helped by the fact that the advance sheet of the Kansas Supreme Court erroneously reported that a petition for review had been denied in Vega-Fuentes. In fact, the petition for review had been granted and was being considered by the Supreme Court at the time of defendant’s sentencing. After hearing the case and reviewing our decision in Vega-Fuentes, the Supreme Court reversed and held that municipal convictions could be aggregated as person felonies. See 264 Kan. at 16.
Approximately 11 days after the prosecution found out about the reversal of Vega-Fuentes, it filed its motion to correct what it argues was an illegal sentence. The delay in ruling on that motion was caused by the fact that at that time, the direct criminal appeal was pending.
In August 2000, we issued our decision in this defendant’s direct criminal appeal, affirming his aggravated robbery conviction but vacating a conspiracy to commit robbery conviction based upon a lack of jurisdiction. State v. Oliver, No. 81,594, unpublished opinion filed August 4, 2000.
After the direct appeal was decided, the trial court held a hearing • on the State’s motion, found that its previously imposed sentence was illegal, and doubled defendant’s sentence to 180 months.
The question is whether the most recent sentence is illegal.
An illegal sentence may be corrected at any time. K.S.A. 22-3504. Whether a criminal sentence is illegal is a question of law. State v. Reed, 23 Kan. App. 2d 661, 662, 934 P.2d 157, rev. denied 262 Kan. 967 (1997).
We think the law is clear in this state:
“When the State agrees to a defendant’s criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block. Similarly, the State cannot challenge the severity level of petitioner’s crime after so stipulating earlier. [Citation omitted.]” Neal v. State, 25 Kan. App. 2d 705, 705-06, 971 P.2d 748 (1998), reo. denied 266 Kan. 1109 (1999).
This court has repeatedly held that a sentence within the wrong sentencing grid block under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., is not an illegal sentence when the criminal history category was stipulated to by the parties. Neal, 25 Kan. App. 2d at 705; Thompson v. State, 25 Kan. App. 2d 659, 967 P.2d 361 (1998); State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996); State v. Tolliver, 22 Kan. App. 2d 374, 380, 916 P.2d 725 (1996). The justification behind this rule is that one who invites error by his or her own acts cannot then complain or take advantage of it on appeal. Neal, 25 Kan. App. 2d at 706.
The State argues it did not stipulate to criminal history category C in this case. We do not agree. The State informed the court that the municipal convictions could not be aggregated and did not object to the criminal history category C.
It requires no citation of authority to note that Court of Appeals’ decisions do not become the law of this state until a petition for review, if filed, has been denied and a mandate has been issued. In this case, the parties prematurely relied upon the holding in Vega-Fuentes and treated it as the law of the state. The State did not appeal from the original sentence. The original sentence was not illegal, as the authority cited above demonstrates, and defendant should not have been resentenced by the trial court. We hold the present 180-month sentence should be vacated and the matter remanded to reinstate the original 85-month sentence.
Sentence vacated and case remanded with directions. | [
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Marquardt, J.:
On petition for review, the Kansas Supreme Court affirmed the jury trial conviction of Gerald L. Cope and reversed the Court of Appeals’ decision. The case was remanded to this court for decision on the issue of whether the trial court erred- when it denied Cope’s motion to disqualify the Johnson County District Attorney’s office from prosecuting this case. We affirm.
The facts not relevant to this issue will not be reiterated herein, as they have been thoroughly discussed in the Kansas Supreme Court opinion and in our previous opinion. See State v. Cope, 273 Kan. 642, 44 P.3d 1224 (2002); State v. Cope, 29 Kan. App. 2d 481, 29 P.3d 974 (2001).
Cope talked with a coworker, Jeremy Walker, and said that he was “going to go to war with” Johnson County. He planned to obtain C-4 explosives and place them around the courthouse. Walker expressed his concern to Chuck Wiegand, a former police officer. Cope told Wiegand that “Johnson County had robbed [him] of any reason to live.”
Lieutenant Resman apprised courthouse security officers about Cope’s threats. Lieutenant Resman arranged for officers in unmarked vehicles to follow Cope during his daily routine.
Cope was arrested and charged with one count of making a criminal threat. Cope filed a motion for a change of judge and asked that the Johnson County District Attorney’s office be excused from handling the case. Cope believed that every person who worked in the courthouse was a potential victim of the crime and that the attorneys who worked in the district attorney’s office would be biased by having a conflict of interest. Cope alleged that the entire district attorney’s office was “infected with the desire to get [him] for this crime regardless of whether the elements are made." Cope supported his argument by stating that he was not offered a plea bargain. The State responded that there was no conflict of interest and the prosecuting attorney did not view Cope’s case any differently than other cases.
Cope’s motion to recuse the attorneys in the district attorney’s office was denied. However, Cope’s motion for a change of judge was granted. The case was heard by a judge pro tem from a different judicial district.
Cope was sentenced to 24 months’ probation, with an underlying prison term of 9 months. Cope chose to serve the prison term because he had 157 days of jail time credit. Cope timely appealed his conviction and sentence. This court reversed the conviction and upheld the constitutionality of K.S.A. 21-3419. See 29 Kan. App. 2d 481. The only issue raised with the Kansas Supreme Court was the sufficiency of the evidence for the conviction. The court held that there was sufficient evidence and reversed and remanded the case to this court to decide whether it was error for the trial court to deny Cope’s motion to disqualify the attorneys in the Johnson County District Attorney’s office.
On appeal, Cope maintains that the Johnson County District Attorney’s office was an object of his alleged threat and, as such, it was a crime victim and should not have been allowed to prosecute his case. Cope argues that his prosecution by a victim of the crime violated his Fourteenth Amendment right to due process of law. Cope maintains that a prosecutor who has a stake in a criminal prosecution has a conflict of interest.
The trial court’s decision on a motion to disqualify an attorney from handling a legal matter is subject to review for abuse of discretion. See State v. Dimaplas, 267 Kan. 65, 67-68, 978 P.2d 891 (1999).
The prosecution of criminal offenses is the responsibility of the public prosecutor who ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. It is important to the public, as well as to individuals suspected or accused of crimes, that these discretionary functions of the prosecutor be exercised with the highest degree of integrity and impartiality, and with the appearance of the same. See People v. Eubanks, 14 Cal. 4th 580, 588-89, 59 Cal. Rptr. 2d 200, 927 P.2d 310 (1996).
The prosecutor speaks not only for the victim, or the police, or those who support them, but for all citizens. Eubanks, 14 Cal. 4th at 589. Both the accused and the public have a legitimate expectation that the prosecutor’s zeal will be objective and impartial in each individual case. Eubanks, 14 Cal. 4th at 590.
A conflict of interest exists in the prosecution of a criminal case whenever the circumstances of the case evidence a reasonable possibility that the prosecutor’s office may not exercise its discretionary function in an evenhanded manner. However, a conflict of interest warrants recusal only if the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings. See Eubanks, 14 Cal. 4th at 590-92.
We have found no case involving a defendant threatening to blow up a courthouse and then seeking to disqualify an entire prosecutor s office from prosecuting the case. There is no disciplinary rule that deals with the issue raised in the instant case.
In United States v. Hubbard, 493 F. Supp. 206 (D.C. 1979), the defendants moved to disqualify the entire office of the United States Attorney for the District of Columbia from prosecuting their cases on the grounds that the office was the victim of the crimes charged. The indictment charged the defendants with burglaries and thefts from the office of an assistant United States attorney. The court found that the only meaningful connection between the office and the prosecution was that one attorney s office was burglarized. The attorney whose office was burglarized was not involved in the case, and the court held that the facts did not constitute a disquahfying interest. 493 F. Supp. at 207.
In Commonwealth v. Reynolds, 16 Mass. App. 662, 454 N.E.2d 512 (1983), a building owned by an assistant district attorney was burglarized. A joint motion was filed by the defendants asking the court to appoint a special prosecutor. The court held that a conflict of interest did not exist which would necessitate the disqualification of the district attorney s entire prosecutorial staff, since the offenses alleged were crimes against property and were not attacks upon the integrity of the district attorney s office. 16 Mass. App. at 663.
In Dimaplas, the defendant sought to disqualify the entire Saline County District Attorney’s office because two of tire trial witnesses were a current and former member of that staff. The Kansas Supreme Court found that the trial court incorrectly found a conflict of interest. 267 Kan. at 71; see State v. Goodnow, 12 Kan. App. 2d 294, 299-300, 740 P.2d 113, rev. denied 242 Kan. 904 (1987).
Here, it is uncontroverted that the district attorney’s office is located in the Johnson County courthouse, which employed ap proximately 370 people at the time of Cope’s trial. Our task here is to determine whether the trial court erred in not disqualifying the Johnson County District Attorney’s office, and if Cope’s Fourteenth Amendment right to due process was violated.
It is true that a targeted victim of a crime would be personally and emotionally vested in the outcome of the crime charged. The key in deciding whether a prosecutor should be disqualified is whether the prosecutor has a significant personal interest in the litigation which would impair the prosecutor’s obligation to act impartially toward both the State and the accused. See Sinclair v. State, 278 Md. 243, 254, 363 A.2d 468 (Md. App. 1976).
We disagree with Cope’s argument that he victimized the district attorney’s office to such a degree that he created a conflict of interest. Cope never directly threatened the district attorney’s office. This is not a case where he targeted a specific attorney or group of attorneys from that office as the victim or victims of a specific crime. Indeed, his actions targeted the entire courthouse. Cope’s argument that any staff member of any office in the building was a victim is simply too broad. Under Cope’s logic, everyone from the bailiff to the court reporter was his victim and suffered a potential bias. One could even argue that the entire jury pool was biased, since the courthouse is a public building and any Johnson County resident was a potential target of Cope’s wrath.
In addition, we note that while the district attorney is given broad prosecutorial discretion, the trial judge is ultimately in charge of making trial decisions. A pro tern judge from a different judicial district presided over Cope’s trial. This limited the impact of the actions taken by the district attorney’s office. Cope’s due process rights were not violated. Accordingly, we find no abuse of discretion in the trial court’s refusal to dismiss the Johnson County District Attorney’s office from prosecuting Cope’s case.
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Johnson, J.;
James McIntyre appeals the district court’s imposition of 24 months of probation. We affirm.
In 1998, James McIntyre pleaded guilty to one count each of possession of cocaine and possession of marijuana. McIntyre’s presumptive sentence was 24 months’ imprisonment, but the sentencing judge imposed a downward dispositional departure sentence and assigned McIntyre to the Labette Correctional Conservation Camp.
One year later, the State filed a motion to revoke McIntyre’s probation. McIntyre stipulated to the violations. The district court revoked and reinstated probation and ordered McIntyre to undergo a screening for the Therapeutic Community, which appar ently found McIntyre unacceptable for its program because he had never participated in a residential treatment program. McIntyre requested that he be allowed to enter a residential treatment program and that, pursuant to K.S.A. 2001 Supp. 21-4611(c)(3), his probation be reinstated for 12 months. The State, however, argued that the term of McIntyre’s probation should be extended to 24 months.
The district court ordered McIntyre to serve 24 months’ probation, finding there was “both a safety factor and judicial necessity.” The court elaborated that based on a report prepared by the Community Corrections Department, McIntyre had a high probability of having substance dependence disorder and would need extensive treatment. Additionally, McIntyre would be required to return to the Community Corrections Residential Center following his completion of an inpatient treatment program, provided he was accepted into such a program. McIntyre appeals the imposition of 24 months’ probation in lieu of 12 months.
Subsequent to the appeal, McIntyre’s probation was revoked. McIntyre stipulated to violating the terms of his probation by using drugs, failing to submit to a urinalysis, and failing to obtain full-time employment. The district court denied McIntyre’s motion to reinstate his probation and ordered him to serve the remainder of his underlying prison sentence.
MOOTNESS
In concluding its brief, the State contends the issue presented on appeal is moot because McIntyre’s probation was eventually revoked, he was incarcerated, and any issue regarding probation is now irrelevant. We disagree.
“An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” [Citation omitted.]’ [Citation omitted.]” Shanks v. Nelson, 258 Kan. 688, 690-91, 907 P.2d 882 (1995). As McIntyre points out, the State’s final motion to revoke was filed more than 12 months after the probationary period at issue began. Conse quently, had the district court only ordered 12 months’ probation, the State’s revocation motion would have been untimely. The State has failed to adequately demonstrate that McIntyre’s substantial rights would not be affected by a favorable disposition in this case.
JURISDICTION
The State also argues that this court lacks jurisdiction to consider the issue on appeal. There is no dispute that the statutorily imposed period of probation for the offenses McIntyre committed is a maximum of 12 months. See K.S.A. 2001 Supp. 21-4611(c)(3). However, K.S.A. 2001 Supp. 21-4611(c)(5) provides that
"[i]f 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.”
The maximum term which may be imposed by the district court under this statute is 60 months or the maximum period of the prison sentence that could be imposed, whichever is longer. K.S.A. 2001 Supp. 21-4611(c)(6).
The right of appeal is entirely statutory; no appellate review is required by either the United States Constitution or the Kansas Constitution. State v. Ji, 255 Kan. 101, 102, 872 P.2d 748 (1994). As a result, Kansas appellate courts generally have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. See Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). The issue is whether the language of K.S.A. 2001 Supp. 21-4611(c)(5), which specifies that an increase in the term of probation is not subject to appeal, serves to deprive this court of jurisdiction to review a probation sentence imposed under that statute.
The question requires statutoiy interpretation over which this court has unlimited review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). There appears to be a split in authority among panels of the Court of Appeals as to whether this court has jurisdiction to entertain appeals such as McIntyre’s. Compare State v. Whitesell, 29 Kan. App. 2d 905, 908, 33 P.3d 865 (2001) (holding the legislature specifically intended to foreclose review of an increase in probation term pursuant to K.S.A. 2001 Supp. 21-4611(c)(5) by inserting the “not subject to appeal” language), with State v. Jones, 30 Kan. App. 2d 210, 214, 41 P.3d 293 (2001) (finding district court’s failure to set forth with particularity the reasons for extending probation under K.S.A. 2001 Supp. 21-4611(c)(5) constituted an abuse of discretion resulting in an illegal sentence, which may be corrected at any time). Jones was originally filed November 15, 2001, as an unpublished opinion, but on February 8,2002, the Kansas Supreme Court ordered that Jones be published. In a March 20, 2002, summary disposition, the Kansas Supreme Court reversed an unpublished Court of Appeals decision which was filed October 26, 2001, pursuant to “the prior controlling appellate decision in State of Kansas v. Arnold E. Jones, 30 Kan. App. 2d 210, (No. 86,452 -filed November 15, 2001).” To summarize, the chronology is as follows:
October 26, 2001: State v. Shaw, No. 85,816, finding no authority to review probation extension, filed by Court of Appeals as unpublished opinion.
November 2, 2001: Whitesell, finding legislature intended to preclude review of probation extensions, filed by Court of Appeals as a published opinion.
November 15, 2001: Jones, finding the absence of trial court findings constitutes a reviewable illegal sentence, filed by Court of Appeals as an unpublished opinion.
February 8, 2002: Jones ordered published and show cause order issued in Shaw by Supreme Court.
March 20,2002: Supreme Court summarily reverses Shaw, pursuant to the “prior controlling authority” of Jones.
One must infer, therefore, that if the decision of the Jones panel is controlling authority upon other Court of Appeals panels, then Whitesell, which was also filed before Jones, has impliedly been overruled by the Supreme Court. Therefore, we will proceed to consider the merits of the appeal.
EXTENSION OF PROBATION PERIOD
To resolve McIntyre’s complaint, we must determine whether the trial court set forth with particularity the requisite reasons for extending McIntyre’s probationaiy period. Interestingly, at the hearing, defense counsel made a point to ask the trial judge for clarification on the ruling to comply with the particularity requirement of K.S.A. 2001 Supp. 21-4611(c)(5). In response, the trial judge explained:
“And I appreciate your position. My feeling is, if I haven’t made the record abundantly clear, is I believe that because of the nature of the evaluation that was presented to me by the Community Corrections Department, that he is — does have such a problem, a high probability of having a substance dependence disorder, plus his psychological personality and the characteristics associated thereto, that he is going to need an extensive outpatient treatment program as well after he is able to get into an in-patient treatment program and the center’s program, that I think that an outpatient program is — seems to be warranted.
“And an extensive outpatient treatment program seems to be warranted based upon the evaluation that I’ve reviewed and received. Understanding your position, and I guess in all candor, that is not — you have, I think, made a sufficient record that I think your position will not be waived if there is any kind of a motion after one year that, you know, the Court didn’t sufficiently satisfy, you know, that position. And obviously a transcript can be had of this hearing for that particular motion if one is deemed appropriate.”
Clearly, the trial court’s ruling was based on its conclusion that McIntyre’s welfare would not be adequately served by the 12-month term because his serious drug problem warranted more extensive treatment. The court’s reasons are sufficient to satisfy the particularity requirement of K.S.A.- 2001 Supp. 21-4611(c)(5). Moreover, the above comments were specifically made in an effort to comply with the relevant statute.
While McIntyre disagrees with the district court’s view that 24 months is necessary to complete the extensive treatment he apparently needed, he has failed to show that the ruling constituted an abuse of discretion.
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Brazil, J.:
Appellants S. A. Harms and LaWanda Harms, et al, obtained a judgment against defendant Veva Burt and were proceeding with a writ of execution on Burt’s former residence. Appellees Capitol Federal Savings and Loan Association (Capitol Federal) and Joseph and Victoria Wright intervened and filed a motion claiming their purchase money interests, though acquired later in time, were entitled to be equitably subrogated to a position senior to the appellants’ judgment lien. The district court invoked the doctrine of equitable subrogation and reordered the Hen priorities on the property.
This appeal involves the priority of liens in a writ of execution action concerning a residential properly in Wichita, once owned by Veva Burt, who is not a party to this appeal and has since filed for bankruptcy protection. The district court invoked the doctrine of equitable subrogation to elevate the appellees’ interests above two prior judgment liéns, one of which is held by the appellants in this case. The parties tried the case to the district court based on stipulated facts. These facts are condensed as follows:
Three lawsuits resulted in two separate judgments entered of record in Sedgwick County against Veva Burt and several other defendants. S.A. and LaWanda Harms and Rickey and Crystal Harms consolidated their cases and were awarded one judgment totaling $150,000, which was offset by a payment of $70,000. The Harms’ judgment was entered on February 22, 1999.
The second judgment entered against Burt was in favor of Kenneth and Kaye McMullin in the amount of $10,190.69, plus court costs. The judgment was entered October 26, 1999. The McMullins are not a party to this appeal but may be affected when deciding relative lien priorities.
On the dates both judgments were entered, Burt was the record owner of the Wichita residence. She acquired title from her revocable trust by transfer deed recorded April 1, 1998. At the time of transfer, she also executed and delivered a $147,000 mortgage to Green Tree Financial Servicing Corporation. This first “Green Tree” mortgage was also recorded on April 1, 1998. Burt later obtained a second mortgage from an entity related to Green Tree in the amount of $15,000, which was recorded May 25, 1998.
To recap, as of October 26, 1999, Burt’s residence was subject to: a first mortgage for $147,000 recorded April 1, 1998; a second mortgage recorded May 25, 1998; the Harms’ judgment lien of $150,000, offset by a $70,000 payment entered February 22,1999; and the McMullins’ judgment lien entered October 26, 1999.
On November 7, 1999, the Wrights submitted an offer to Burt to purchase the Wichita residence for $121,500. On December, 8, 1999, the title company prepared the title commitment which did not show the Harms’ and McMullins’ judgment liens on the property. The omission occurred because the examiner checked company records but failed to check original records or recorded pleadings.
On December 16, 1999, a writ of execution was filed on the Harms’ judgment against Burt’s residence. The next day, Conseco Finance Servicing Corporation (Conseco), which had already declared Burt in default on one of the Green Tree mortgages, agreed to accept $110,000 to release the two mortgages on the property if the sale closed by December 31, 1999. The very next, day, Burt accepted Wright’s offer to purchase the residence. On December 21, 1999, Wright applied for a mortgage from Capitol Federal.
On December 29, 1999, the purchase/sale of Burt’s residence was closed. Prior to closing, the title company updated its title commitment, again without checking die appropriate court records. The Wrights obtained a $61,500 mortgage from Capitol Federal and paid the balance of the purchase price and closing costs in cash ($61,189.03). Capitol Federal disbursed these purchase monies to Conseco, and Conseco eventually filed its release of the Green Tree mortgages on May 25, 2000.
Also on December 29, 1999, the Sedgwick County Sheriff received an Order For Sale on the Burt residence. On January 31, 2000, the Sheriff returned the order, noting that Burt was not found and was no longer a resident at the address provided. Sixty days later, Burt filed a Chapter 7 bankruptcy petition in Texas.
On April 11, 2000, the Wrights received written notice that the judgment liens entered against Burt prior to the December sale/ purchase of the residence remained unsatisfied. The Wrights failed to respond. On August 4, 2000, the Harms filed a writ of general execution. Three days later, the writ declaring the property seized by the district court was posted at Burt’s former residence. Mr. Wright received service at the same time.
The district court allowed the Wrights and Capitol Federal to intervene in the execution proceedings. The Harms filed a motion to join both the abstract and title companies, which the district court overruled. The Harms then filed a motion to determine lien priorities and the parties submitted the case to the district court on stipulated facts. The district court invoked the doctrine of equitable subrogation and determined that the interests of Capitol Federal and the Wrights were superior to the judgment liens and that the Harms could not proceed with levy on the residence. The district court did not distinguish between the purchase money mortgage interest of Capitol Federal and the purchase money cash equity interest of the Wrights.
DOCTRINE OF EQUITABLE SUBROGATION
The application of an equitable doctrine rests within the sound discretion of the trial court. Bankers Trust Co. v. United States of America, 29 Kan. App. 2d 215, 218, 25 P. 3d 877 (2001). However, when a case is submitted to the trial court on stipulated facts, an appellate court has the same opportunity as the trial court to consider the evidence and to determine de novo what the facts establish. Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 536, 809 P. 2d 538 (1991).
In their reply brief, appellants rely on Bankers Trust. They contend the district court erred by applying the doctrine of equitable subrogation and determining their interests were subordinate to the interests of Capitol Federal and the Wrights.
The Bankers Trust court held:
“The doctrine of equitable subrogation may not be applied to relieve a parly who negligently takes a lien on or an interest in property which is subject to prior liens of record of which that party had either actual or constructive notice. To apply equitable subrogation under those circumstances would be tantamount to relieving that party of a condition attributable to a failure to exercise ordinary care for his, her, or its own interests. Equitable subrogation will not apply in favor of such party.” 29 Kan. App. 2d at 222.
Capitol Federal argues that Bankers Trust or its predecessor had actual knowledge- of the hen, whereas Capitol Federal and the Wrights only had constructive notice. It argues that although the Bankers Trust case states that the doctrine of equitable subrogation should not apply to parties with “actual or constructive” knowledge of the hen, it is merely dictum as to cases involving parties with constructive knowledge only. While the parties in Bankers Trust had both actual and constructive knowledge, we conclude that the holding in that case should extend to cases relying on constructive notice only.
As the court stated in the early case of Kuhn v. Bank, 74 Kan. 456, 458, 87 Pac. 551 (1906):
“If, as it has uniformly been decided, a purchaser of either real or personal properly is bound to take notice of the facts affecting the title to the property which the records of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person who afterward asserts the facts shown by the records to the prejudice of the purchaser which prevents an examination of the records or induces the purchaser not to make such examination, it is negligence for a purchaser of either real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired. In the absence of such fraudulent conduct the purchaser will be presumed to have bought with knowledge of all the facts which the records at the time would have disclosed. Equity cannot be invoked to relieve one from the consequences of his own negligence. (Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988 [1901].)”
Notwithstanding Capitol Federal’s argument that the majority trend in other states is contrary, the holding in Kuhn is still valid in Kansas. In Kansas, courts charge parties with constructive notice of public records. See Bi-State Dev. Co., Inc., v. Shafer, Kline, & Warren, Inc., 26 Kan. App. 2d 515, 519, 990 P.2d 159 (1999) (applying K.S.A. 58-2222). The judgment docket places parties and their agents who use reasonable care and diligence on notice of potential title problems. See Carnation Co. v. Midstates Marketers, Inc., 2 Kan. App. 2d 236, 238-39, 577 P.2d 827 (1978).
THE TITLE INSURANCE ENTITIES
The Harms filed a motion to join both the abstract and title companies, which the district court overruled. On appeal, they claim the title insurance entities are contingently necessary parties under K.S.A. 60-219(a) because just adjudication and complete relief cannot be granted in their absence.
This issue is reviewed under an abuse of discretion standard. McHorse v. Eaks, 27 Kan. App. 2d 817, 7 P.3d 1272 (2000) (adopting abuse of discretion standard for reviewing K.S.A. 60-219). We are reluctant to conclude that the trial court abused its discretion when it denied the Harms’ motion to join, but neither are we able to agree with the panel in Bankers Trust that the presence or absence of insurance will always be irrelevant to a trial court’s consideration of whether to apply the doctrine of equitable subrogation. Given the right facts, the presence or absence of title insurance may well be relevant. We recognize that other jurisdictions have, for example, been hesitant to apply equitable subrogation where a title insurance company was negligent in fading to discover an intervening tax. See First Federal Sav. Bank of Wabash v. U.S., 118 F.3d 532, 534 (7th Cir. 1997).
We reverse and remand with directions to enter judgment restoring the priority of the junior lienholders, the Harms and the McMullins. The McMullins, though a nonappealing party, are entitled to the benefit of the appellate holding since their rights are interwoven. Shade, 248 Kan. at 542 (recognizing general rule that nonappealing parties are bound by lower court decision but applying exception when interests of nonappealing lienholders are interwoven with appealing lienholders).
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Green, J.:
David M. Ely appeals the district court’s judgment granting summary judgment in favor of Charles Hitchcock; Services of Kansas, Inc., d/b/a Old Mission Mortuary (Old Mission); and Wesley Medical Center, L.L.C. (Wesley).
Ely contends that the trial court improperly dismissed his claim of interference with a dead body. In addition, he maintains that the trial court wrongly dismissed his claim of negligence per se. Finally, he contends that the trial court erred in dismissing his claims of outrage and negligent infliction of emotional distress. We disagree and affirm.
Ely sued Hitchcock, Hitchcock’s employer, Old Mission, and Wesley. Ely’s petition alleged that the defendants had intentionally, maliciously, or recklessly interfered with the body of his mother, Shirley Forassiepi. The petition further alleged that defendants’ interference with Forassiepi’s body caused Ely mental anguish and emotional distress when he viewed the body. Ely’s legal claims were for negligent infliction of emotional distress, negligence per se (for violation of administrative regulations), intentional mishandling of a dead body, and outrage.
Hitchcock, Old Mission, and Wesley moved for summary judgment. The parties agreed on the following uncontroverted facts through the course of the summary judgment proceedings.
Ely was the natural son of Forassiepi. Forassiepi had suffered from schizophrenia most of her life. Ely was separated from his mother when he was 7 years old. Over the next 32 years, Ely talked with his mother on the telephone once every year or two and saw her only once. After this long period of separation, Ely lived with Forassiepi in Little Rock, Arkansas, for several months. Later, he was in contact with his mother almost every day by telephone.
Forassiepi spent her last months in health care facilities and nursing homes in California and Kansas. Shortly before her death, Forassiepi had been suffering from diabetes and heart disease. Forassiepi was admitted to the coronary care unit at Wesley on May 26, 1999.
Forassiepi died of a heart attack at Wesley shortly before noon on May 30, 1999. An “ambu bag,” which can cause postmortem bruising, was used on Forassiepi during the doctors’ attempts to resuscitate her. However, Wesley personnel did not see any visible marks or cuts on Forassiepi’s face after her death.
Rick Timsah, one of Forassiepi’s other sons, and Jim and Doris Edwards, Ely’s aunt and uncle, viewed Forassiepi’s body in the coronaiy care unit at Wesley. Wesley personnel then placed Forassiepi in a body bag. A few hours later, Lany Lawruldewicz, a Wesley security officer, picked up the body from the coronary care unit and took it to Wesley’s morgue.
Shortly before Forassiepi’s death, Timsah had purchased a preneed funeral insurance policy for his mother. Forassiepi’s family had requested that her remains be cremated with only minimal preparation for viewing. On the day of Forassiepi’s death, Timsah called Old Mission and spoke with Hitchcock, a licensed assistant funeral director. Timsah told Hitchcock of Forassiepi’s death and informed Hitchcock of the need to retrieve the body from Wesley to prepare it for cremation.
Wesley personnel also called Old Mission to tell them Forassiepi’s body was ready to be transported. Old Mission’s funeral home manager, Marilyn Milleson, told Hitchcock to transport Forassiepi’s body to DeVorss Mortuary for storage because Old Mission’s refrigeration unit was full.
Hitchcock arrived at Wesley to pick up Forassiepi’s body at 3:25 p.m. that afternoon. He unzipped the body bag, and put an identification tag on Forassiepi’s leg. Hitchcock re-zipped the bag without looking at Forassiepi’s head or face. He then loaded Forassiepi’s body onto a mortuary cot, placing a pillow around her head and strapping her body to the cot. During this process, Lawrukiewicz looked at Forassiepi’s' face and did not see any cuts or wounds.
Hitchcock transported the body to DeVorss Mortuaiy. As he unloaded the cot and pushed it into the building, one of its wheels became stuck or struck a bump in the garage floor, causing the cot to tip to the right. Unable to keep the cot upright, it fell over, ending up with the cot laying on its side. With the help of a DeVorss employee, Hitchcock lifted the cot back up.
Timsah called Milleson the next morning and angrily complained about some of the provisions of the pre-need insurance policy. Milleson spoke to Old Mission’s general manager, and they decided to offer the cremation at no charge.
Some time later, Hitchcock picked up Forassiepi’s body from DeVorss and took it to Old Mission. When Hitchcock unzipped the body bag to prepare Forassiepi’s body, he discovered a laceration to Forassiepi’s left eyebrow, and saw blood on her face, head, and hair. Hitchcock asked Milleson to assist him in preparing the body.
That afternoon, Ely and other family members arrived at Old Mission to make the cremation and funeral arrangements. Milleson greeted the family and told them that the direct cremation would be provided free of charge, with the exception of taxes and the cost of certified copies of the death certificate, because of Timsah’s dissatisfaction over the pre-need policy. Hitchcock finished making the arrangements with the family.
Hitchcock then asked if anyone would like to view the body. When Ely said he would, Hitchcock took him to the viewing room where he was left alone. Hitchcock did not tell Ely about the condition of Forassiepi’s body. It was then that Ely saw the damage to Forassiepi’s body.
Ely came out of the room and informed his family about the laceration. Members of the family grew angry and told Hitchcock and Milleson the laceration was not on the body when they viewed it at the hospital. Jim Edwards took pictures of the body. Ely helped him take the pictures by tipping his mother’s head toward the camera, rolling tire body, and unzipping the bag to look for other injuries. Ely then went to the bathroom and threw up.
Hitchcock and Milleson told Forassiepi’s family they did not know how the laceration occurred, but it did not occur while in Old Mission’s care. Ely does not know how or where the laceration occurred, when it occurred after her death, or what caused it.
Ely’s injuries from this experience included throwing up once, incurring anger, recurring nightmares, crying, shaking, having difficulty removing the smell of formaldehyde from his hands, imagining the smell of formaldehyde on his hands, feeling shocked, and having gaps in his memoiy. He did not seek counseling and did not believe that he needed counseling. He did not see a mental health provider for any emotional difficulty he had after his experience. Ely did not miss any work due to his emotional distress from viewing the laceration.
The trial court found the material facts of the case were uncontroverted. It then adopted all of the arguments in Hitchcock’s and Old Mission’s motions for summary judgment as its conclusions of law in the case. Specifically, the trial court found that Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986), controlled the outcome of the case. The trial court reasoned that Kansas does not recognize a claim for negligent interference with a dead body, but only for intentional, reckless, or malicious interference, and there was no such evidence in this case.
Even if Kansas did recognize a claim for negligent interference, the trial court found that Hitchcock’s failure to warn Ely about his mother’s injury did not rise to the level of negligent interference with a dead body or negligent infliction of emotional distress. It also rejected Ely s claim of negligence per se, because any possible violations of Kansas Administrative Regulations were not the cause of the damage. Finally, it found no evidence of intentional conduct to support Ely s claim for outrage.
The trial court dismissed Ely’s claims based on the defendants’ motions for summary judgment. Our standard of review on appeal is well established:
“ ‘Summary judgment is appropriate when the pleading[s], depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
There are essentially three wrongful acts Ely claims resulted in his emotional distress: (1) the intentional or negligent damage to his mother’s body (interference with a dead body), (2) the release by Wesley of his mother’s body to Hitchcock, and Hitchcock’s transporting of Forassiepi’s body, which allegedly violated Kansas administrative regulations (negligence per se), and (3) the failure of Hitchcock and Old Mission to warn Ely of the condition of his mother’s body before he viewed it (outrage or negligent infliction of emotional distress). We will discuss these issues in that order.
Negligent Interference with a Dead Body
The trial court dismissed Ely’s cause of action for negligent interference with his mother’s body under the controlling case of Burgess, 239 Kan. 473. On appeal, Ely argues that a claim of negligent infliction of emotional distress due to the mishandling of his mother’s body is possible if the facts are viewed in the light most favorable to his case. A review of the law regarding the mishandling of dead bodies is helpful.
In Alderman v. Ford, 146 Kan. 698, 72 P.2d 981 (1937), the plaintiff sued a surgeon and his assistant for conducting an autopsy on her husband’s body without her consent. Her petition alleged she had the exclusive right of sepulcher and possession of her husband’s body in the condition it was in when he died. She claimed to have suffered from great mental anguish and hurt feelings, but suffered no physical injury. The trial court found the plaintiffs petition had failed to state a cause of action without an allegation of physical injury.
On appeal, the Alderman Court recognized that the plaintiff had the right to recover her husband’s body in the condition it was in at his death so she could give it a proper burial. 146 Kan. at 701-02. As a result, the court held that any interference with this right by mutilating or disturbing the body was an actionable wrong. In addition, the plaintiff was not required to have suffered from physical injury to be able to recover damages for her mental suffering, which was a direct consequence of the invasion of her right. Thus, Alderman stands for the principle that physical injury is not required to be able to recover for mental distress due to interference with a dead body. 146 Kan. 698, Syl. ¶ 3.
In Hamilton v. Individual Mausoleum Co., 149 Kan. 216, 86 P.2d 501 (1939), the plaintiff alleged that she had suffered mentally and physically due to the defendant’s act of breaking into her mother’s burial vault without her consent. The jury later determined that the defendant’s acts were wanton, willful, malicious, and intentionally wrong. Hamilton, like Alderman, demonstrates that Kansas recognizes a cause of action for interference with a dead body.
Next, in Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983), the plaintiffs sued the defendant for negligent infliction of emotional distress for informing them that their daughter was dead when she was actually in critical condition at another hospital. The court stated the general rule in Kansas was that negligent infliction of emotional distress is not actionable unless it results in physical injury to the plaintiff. Citing Alderman and Hamilton, the court noted that an exception to this general rule had been recognized “where a close relative suffers emotional harm from the negligent mishandling of a corpse.” (Emphasis added.) 233 Kan. at 274. It is not clear why the court believed that the defendants’ activities in those cases were negligent rather than intentional. Nevertheless, it seems that at one time our Supreme Court believed there was a cause of action based on negligent mishandling of a dead body.
Burgess, 233 Kan. 473, however, marked a change in thought. In Burgess, the plaintiff s son was a resident of Kansas Neurological Institute (KNI). Shortly after the plaintiff s son died, the defendant Perdue asked the plaintiffs permission to conduct a full autopsy and to examine her son’s brain. The plaintiff refused to grant permission for a full autopsy. When Perdue filled out the written authorization, however, he failed to limit the autopsy as the plaintiff had requested. Thus, a full autopsy was performed, and the coroner removed the brain of the plaintiff s son and sent it to KNI. Three weeks after her son’s funeral, a doctor from KNI called the plaintiff, told her they had her son’s brain, and inquired as to what they should do with it.
The plaintiff sued Perdue for negligent infliction of emotional distress and the State of Kansas for the outrageous and negligent act of its employee in calling the plaintiff and telling her that they had her son’s brain. Although Burgess did not suffer any bodily injury as a result of the defendant’s negligence, she maintained that emotional distress was sufficient when a defendant negligently mishandles a dead body.
In Burgess, our Supreme Court declined to adopt the position of the Restatement (Second) of Torts § 868 (1977), which stated: “One who intentionally, recklessly, or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability.” The court noted this was not the majority rule, which only allowed recovery if the act was intentional or malicious, and if that act was the proximate cause of the mental anguish or physical illness or both of the plaintiff. 233 Kan. at 480.
The court then observed that Alderman and Hamilton involved conduct other than negligence. 233 Kan. at 480. In its syllabus, the court succinctly stated the following rule:
“For an individual to be liable for emotional distress for interfering with a dead body, the act must be intentional or malicious, as opposed to negligent, interference with the plaintiff s right to the body and the interference must be the proximate cause of the mental anguish and/or physical illness of the plaintiff.” 239 Kan. 473, Syl. ¶ 3.
Thus, our Supreme Court, in Burgess, determined that summary judgment in favor of the defendants was appropriate.
In seeking a reversal of the trial court on the issue of negligent mishandling of his mother’s body, Ely is asking this court to ignore the clear rule established in Burgess. Burgess unequivocally stated that to recover for interference with a dead body, the interference must be intentional. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998). Reviewing the facts in the light most favorable to Ely, the trial court correctly entered summary judgment in favor of the defendants on the issue of negligent interference with a dead body.
Intentional Interference with a Dead Body
Ely also maintains that a jury could infer Hitchcock’s mishandling of the body was intentional and malicious.
The evidence presented to the trial court indicated that Hitchcock accidently let the cot carrying Forassiepi’s body fall to its side. It cannot be said that this act was intentional. However, Ely also argues that, based on the evidence, a jury could infer that Hitchcock intentionally abused Forassiepi’s body in order to avenge himself of Timsah’s rough treatment of him. Ely states in the section of his brief dedicated to his outrage claim:
“The jury could infer that Mr. Hitchcock took his anger towards the family out on their mother. The jury could infer that Mr. Hitchcock choked Mrs. Forassiepi causing the two red marks on her neck. The jury could infer Hitchcock hit Mrs. Forassiepi, causing a laceration over her right eye. The jury could infer he bruised her nose and cheek, out of anger against the family who was treating him badly.”
In support of his argument, Ely points to Hitchcock’s testimony which said he had received an angry telephone call from Timsah shortly before retrieving Forassiepi’s body. Ely’s brief also cites parts of Lawrukiewicz’s testimony that indicated that Hitchcock was unhappy with Forassiepi’s family when he retrieved Forassiepi’s body from Wesley.
Nevertheless, this evidence was not presented to the trial court. Ely did not tell the court that Hitchcock may have been angry when he retrieved Forassiepi’s body. Lawrukiewicz’s deposition was not provided to the trial court in full but was added to the record on appeal at a later date.
In their memorandum in support of their motion for summary judgment, Hitchcock and Old Mission stated they assumed the outrage claim was “based on conduct other than allegedly causing the laceration to the eyebrow, for that claim would most appropriately fall under the Burgess rule.” The plaintiff did not dispute this statement in his response. To the contrary, during the hearing on the motions for summary judgment, Ely acknowledged there were no allegations that such behavior took place: “Now, again, there is no allegation that anybody punched Ms. Forassiepi, nobody struck her with an object.”
Ely cannot concede this point at the trial court level and then argue on appeal that it erred by failing to consider Hitchcock might have acted intentionally. Issues not raised before the trial court cannot be raised on appeal. Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000).
Without any allegations of reasons for Hitchcock to act intentionally, a jury could not reasonably infer that Hitchcock intentionally abused Forassiepi’s body. See Clevenger v. Catholic Social Service of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, 530, 901 P.2d 529 (1995) (holding summary judgment on claim of outrage was appropriate when no evidence of any motive for defendant to act maliciously was presented to the court). As a result, Ely’s argument that a jury could have found that Hitchcock’s mishandling of the body was intentional and malicious fails.
Right of Sepulcher
Ely also argues that Hitchcock and Old Mission failed to ask the trial court for summary judgment on his claim of sepulcher. Therefore, Ely maintains that because his sepulcher claim against Hitch cock and Old Mission was not dismissed, the claim is still alive at the trial court level, rendering his appeal premature.
After the parties’ arguments at the summary judgment hearing, the trial court announced it was adopting all of the arguments and conclusions of law made by Hitchcock and Old Mission in their memorandum in support of their motion for summary judgment. The trial court also commented that its ruling allowed all the defendants to be dismissed from the lawsuit. Thus, the trial court believed all of the plaintiffs claims had been addressed.
“Sepulcher” is not defined in Black’s Law Dictionary (7th ed. 1999). It is defined in the American Heritage Dictionary as a burial vault or interment. American Heritage Dictionary 1119 (2d Ed. 1985). Ely’s claim of the right of sepulcher appears to have been derived from Alderman, where the court recognized the plaintiff s right to recover her husband’s body in its condition at his death so she could give it a proper burial.
Alderman also explained “that this is not a case where recovery depends on negligence.” 146 Kan. at 699. The plaintiff interprets this clause to mean that “[t]he right of sepulcher is not a negligence claim.” Thus, Ely reads Alderman to mean that the right of sepulcher does not depend on intent or injury.
As demonstrated in Burgess, this is simply not correct. The defendants in Burgess interfered with the plaintiff s right to her son’s body, yet she was not entitled to recover because the defendants’ interference was not intentional. While the family of a decedent may have a right of sepulcher for the body of a decedent, recovery for the violation of that right seems to be based on expenses incurred in correcting the problem and emotional distress or physical injury if the conduct was intentional. As a result, the right of sepulcher is not a separate legal claim. Because the trial court did not have to specifically address this issue, this issue on appeal is not properly before this court. As a result, Ely’s argument fails.
Next, Ely argues that the district court erred in dismissing his claim of negligence per se for violations of Kansas Administrative Regulations. Specifically, he claims that Hitchcock and Old Mission violated K.A.R. 63-5-1, which describes “abuse or disrespect in the handling of a dead human body” as “ [unprofessional or dishonorable conduct.” Ely also cites K.A.R. 63-3-11, which states:
“A dead human body shall not be transported by private conveyance or common carrier until the following conditions are met. (a) Any unembalmed body released by the family or proper authority, . . . may be transported by private conveyance within the state of Kansas if:
“(1) A certificate of death has been filed according to laws and regulations set forth by the Kansas state department of health and environment; and
“(2) after the body has been released to a funeral director, any transportation is supervised personally by the funeral director.”
Ely argues that because Hitchcock was only a licensed assistant funeral director, rather than a funeral director, he could not transport Forassiepi’s body without violating this regulation. Furthermore, he points out, Wesley had not issued a certificate of death when Forassiepi’s body was transported. Thus, according to Ely, Wesley was negligent per se in releasing the decedent’s body to a funeral director before filing a death certificate, and Hitchcock and Old Mission were negligent per se by not having a funeral director transport the decedent’s body.
The elements of negligence per se are: “(1) A violation of a statute, ordinance or regulation, and (2) the violation must be the cause of the damages resulting therefrom.” OMI Holdings, Inc. v. Howell, 260 Kan. 305, 339, 918 P.2d 1274 (1996). In addition, Ely must also establish that the legislature intended to create an individual right of action for injury arising out of the violation. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 370-71, 819 P.2d 587 (1991).
The difference between negligence and negligence per se is the method of ascertainment. Negligence requires the factfinder to make a determination from the evidence. Negligence per se requires the factfinder to determine whether there was a commission or omission of a specific act prohibited or required, which results from violation of a specific law or ordinance. Kerns v. G.A.C., Inc., 255 Kan. 264, 281, 875 P.2d 949 (1994).
Even if the regulations were violated, any violation was not the proximate cause of Ely’s injury. The fact that a death certificate had not been filed had nothing to do with the damage to Foras siepi’s body. Neither can Ely show that the damage to Forassiepi’s body would have been prevented if someone else had transported the body.
Most importantly, Burgess holds that no cause of action exists for a claim of negligent interference with a dead body. Ely s claim of negligence per se is based on the alleged mishandling of his mother’s body. Because Ely cannot circumvent the holding in Burgess under a theory of negligence per se, the trial court did not err in dismissing this part of Ely’s case.
Finally, Ely argues that the trial court erred in dismissing his claim for outrage and negligent infliction of emotional distress when the defendants failed to warn him of the damaged condition of his mother’s body before he viewed it.
Outrage
An actionable claim of outrage contains four elements:
“(1) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiffs mental distress; and (4) the plaintiffs mental distress was extreme and severe. [Citation omitted.]” Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999).
Before addressing these elements, however, the trial court must determine whether the plaintiffs claim meets two threshold requirements: First, the defendant’s conduct must be “so outrageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. [Citation omitted.]” Miller, 267 Kan. at 257. Second, the emotional distress suffered by the plaintiff must be “of such extreme degree the law must intervene because the distress inflicted was so severe that no reasonable person should be expected to endure it. [Citation omitted.]” Miller, 267 Kan. at 257.
The trial court found that there was no evidence of intentional conduct to support a claim for outrage and that the plaintiff had failed to meet the rather stringent requirements for an actionable outrage claim.
Ely maintains that Hitchcock’s and Old Mission’s act of allowing him to see his mother’s body in its damaged condition sufficiently states a claim of outrage. In Burgess, the plaintiff s case included an outrage claim due to the doctor’s act of calling her and telling her that they “ ‘had her son’s brain in ajar.’ ” 239 Kan. at 475. The court found that while the comment was tactless, it was not so extreme in degree as to be regarded as atrocious, outside the bounds of human decency, or utterly intolerable in a civilized community. 239 Kan. at 477. The doctor had telephoned the plaintiff to resolve the error that had been made.
Here, while the defendants might have asked Wesley or the family how Forassiepi died, giving the family the opportunity to see the body was not extreme and outrageous. Furthermore, there was no evidence that Hitchcock acted intentionally or maliciously.
As to the outrage claim against Wesley, Ely barely mentions Wesley and provides no discussion about Wesley’s allegedly outrageous actions. “ Where the appellant fails to brief an issue, that issue is waived or abandoned.’ ” Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999) (quoting Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 [1992]). Because the extreme and outrageous element cannot be met, the trial court did not err in granting summary judgment on all of Ely’s outrage claims.
Negligent Infliction of Emotional Distress
Ely also asserts that he has a separate claim for negligent infliction of emotional distress based on Hitchcock’s and Old Mission’s failure to warn him about the body’s condition before he viewed it. However, this seems to be the same claim as the negligent interference with the right to a dead body. In Burgess, although the plaintiff claimed the doctor’s act of calling her was outrageous and negligent, the court did not separately analyze a claim for negligent infliction of emotional distress for the telephone call.
To be entitled to recovery for negligent infliction of emotional distress, the plaintiff must demonstrate that he has suffered from some actual physical injury or impact as a result. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, Syl. ¶ 1. The reason for this rule is to prevent recovery for feigned distress or distress com monly experienced in everyday life. Hoard, 233 Kan. at 274. Generalized physical symptoms of emotional distress such as headaches and insomnia are insufficient to state a cause of action. Hopkins v. State, 237 Kan. 601, 612-13, 702 P.2d 311 (1985).
In Anderson v. Scheffler, 242 Kan. 857, 861, 752 P.2d 667 (1988), the court found that recurring nightmares and visiting a doctor for depression were not sufficient physical manifestations to state a cause of action. In Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 861, 954 P.2d 11 (1998), the court found that the plaintiff who had suffered from headaches, diarrhea, and nausea had not presented evidence of significant physical injury.
Here, Ely claims that after helping his uncle take photographs of his mother s body, he vomited. Although vomiting may be the physical impact that a case requires, Ely did not seek counseling or any sort of help for his alleged trauma. As a result, Ely has not demonstrated a significant physical injury.
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Marquardt, J.:
Larry F. Rocha appeals the trial court’s revocation of his probation. We reverse and remand with directions to release Rocha from confinement and terminate his probation.
In July 1996, Rocha was charged with one count of possession of marijuana with the intent to distribute and one count of possession of marijuana without a tax stamp. Rocha pled no contest to one count of possession of marijuana with the intent to distribute. In exchange for his plea, the State agreed to drop Count II of the complaint. Rocha was sentenced to 36 months’ probation with an underlying prison term of 15 months. One condition of Rocha’s probation was that he repay the State for the cost of his court-appointed attorney.
In April 1998, a corrections officer filed an affidavit alleging that Rocha had violated his probation by failing to make payments on outstanding fines and costs. A bench warrant was issued for Rocha on April 27,1998. Rocha could not be located and the warrant was - outstanding until Rocha was arrested in Wyandotte County in 1999 for possession of a substantial amount of marijuana.
A hearing to consider the April 1998 affidavit was held in July 1999. The prosecutor told the trial court that he expected additional probation violations because of Rocha’s arrest. At the hearing, Rocha denied that he failed to make payments on his fines and costs. Rocha’s attorney asked the trial court to note the denial and postpone the matter until the Wyandotte County charges were addressed. The trial court ordered that an evidentiaiy hearing would be scheduled after the Wyandotte County prosecution was complete.
Rocha was convicted in Wyandotte County of one count of attempted possession of marijuana with intent to deliver in September 1999. Rocha was incarcerated at the Department of Corrections.
In December 1999, a court services officer signed a second affidavit of probation violation because Rocha was convicted of a drug felony in Wyandotte County. The affidavit was not filed until February 2001. A hearing was held in May 2001 to address Rocha’s probationary status. The Clark County prosecutor argued that Rocha was to return to Clark County after the disposition of his Wy andotte County case. Clark County learned about the Wyandotte County conviction after Rocha was committed to the Department of Corrections.
At the hearing, Rocha argued that the affidavit to revoke his probation should be dismissed because it was filed after his probationary period ended. Rocha informed the trial court that there was no warrant or hold on him by Clark County. The prosecutor responded that Rocha was to notify Clark County when he was sentenced in Wyandotte County so that he could be brought back for a revocation hearing.
The trial court found that Rocha was supposed to return to Clark County after he faced the Wyandotte County charges. Accordingly, the trial court denied Rocha’s motion to dismiss the matter. Rocha’s probation was revoked and he was ordered to serve the remainder of his term. Rocha timely appeals.
Rocha contends that the trial court had no jurisdiction to revoke his probation because the affidavit in support of revocation was filed out of time. Rocha argues that any revocation must occur during the probationary term. Rocha points out that the affidavit which was filed during his probationary term did not serve as the basis for his revocation. Rocha maintains that the trial court should not have relied on the second affidavit when revoking Rocha’s probation, since the State had the obligation to make sure the proceedings continued in a timely fashion.
Generally, the standard of review of a probation revocation is an abuse of discretion. See State v. Lumley, 25 Kan. App. 2d 366, 370, 963 P.2d 1238 (1998), aff'd 267 Kan. 4, 977 P.2d 914 (1999). However, when the issue of jurisdiction is raised, it is a question of law over which our scope of review is unlimited. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
K.S.A. 2001 Supp. 22-3716(a) provides, in relevant part:
“At any time during probation, assignment to a community correctional services program, suspension of sentence or pursuant to subsection (d) . . . the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment.”
A reasonable construction of K.S.A. 2001 Supp. 22-3716(a) is that revocation of probation may properly occur after the term of probation has expired if a warrant, petition, or show cause order has been filed prior to expiration of the probation term. State v. Williams, 20 Kan. App. 2d 142, 147, 884 P.2d 743 (1994).
The Williams court also addressed the issue of amended motions to revoke probation. The panel adopted a reasonableness test which allows amending a request for probation revocation as long as the initial request is filed before the expiration of the probation term, provided the amended allegations were unknown or could not reasonably have been known when a timely filing is made, and as long as there is no unnecessary delay before the filing of the amended allegations and the actual revocation hearing is promptly held. 20 Kan. App. 2d at 150.
We believe that the facts of this case compare favorably to the facts in Williams. In Williams, the trial court revoked the defendant’s probation on the sole ground alleged in an amended motion to revoke. The amended motion was filed after Williams’ term of probation had expired. The Williams court found that the amended motion was filed out of time because it was not filed until 9 months after the filing of a timely revocation motion. The panel also placed great weight on the fact that the motion to revoke was not addressed by the trial court until 18 months after the amended motion was filed. 20 Kan. App. 2d at 151.
In the instant case, the State obviously knew that Rocha had been arrested as early as December 1999. Rocha was still serving his term of probation at that time. However, the affidavit in support of revocation was not submitted to the trial court for over a year. We believe that such a delay was unduly prejudicial.
At the hearing on the motion to revoke probation, the prosecutor explained that due to an error by one of the attorneys, he did not learn of Rocha’s sentencing in Wyandotte County. Regardless of where the breakdown in communication occurred, the State’s failure to conduct a reasonable investigation to ascertain Rocha’s whereabouts constituted a waiver of the probation violation. See State v. Haines, 30 Kan. App. 2d 110, 39 P.3d 95 (2002). It is clear from the record on appeal that all parties involved knew Rocha was being detained in Wyandotte County. The State must therefore accept responsibility for failing to keep track of Rocha. It is the State’s responsibility to bring a probation revocation to the trial court in a timely manner.
We believe that the trial court did not have jurisdiction to revoke Rocha’s probation. The delay in pursuing the initial motion to revoke probation was unreasonable. The second motion to revoke probation was filed years after Rocha had served his complete probationary term. This case is remanded with instructions to release Rocha from confinement.
Since we have already concluded that Rocha must be released from confinement, there is no need to address Rocha’s other issue on appeal.
Reversed and remanded with instructions to release Rocha from confinement and terminate his probation. | [
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Gernon, J.:
Raintree Homes Association, Inc., (Raintree) appeals the decision of the district court in a mortgage foreclosure case concerning real property on which a nuisance had been found to exist. We affirm.
In December 1999, Raintree, a not-for-profit home association in Olathe, Kansas, filed a petition against J. D. Homes, Inc., (J. D. Homes) and Premier Bank (Premier), alleging, inter alia, that a nuisance had been created on building sites owned by Raintree in Olathe. J. D. Homes was involved in building and improving residential lots on the site. Premier provided the mortgages on the lots.
The nuisance claimed by Raintree consisted of trash, dirt, rock, and lumber scattered throughout the property that allegedly affected the enjoyment and ownership of the Raintree Condominiums by their owners. Raintree sought $11,973.50 in damages.
J. D. Homes admitted to creating the nuisance on Raintree’s property. The trial court found that J. D. Homes created and maintained a nuisance on the property, ordered that it be abated, and granted a judgment for $11,973.50.
In January 2000, Premier filed a mortgage foreclosure action on the Olathe property. The case was filed in Johnson County, as was the nuisance action. The foreclosure petition alleged that J. D. Homes had failed and refused to pay the outstanding loan principal and accrued interest on the property. The court appointed a receiver to prevent a further nuisance on the property and to manage it.
Premier filed a motion for summary judgment in its foreclosure action. Raintree countered with a motion to stay summary judgment and to compel abatement of the adjudicated nuisance.
The court granted Premier’s motion for summary judgment and entered judgment against J. D. Homes for $267,908.46 plus interest. After a sheriff s sale, die court determined that Premier had a first and prior lien over the sale proceeds. Raintree appeals.
PRIORITY
Raintree argues that the judgment for street repairs stemming from the damage caused by the nuisance is prior in right to Premier’s mortgage. Premier counters that the trial court properly exercised the discretion it had to determine the priority of the distribution of the proceeds from the sale. ■
McFall v. Ford, 133 Kan. 593, 1 P.2d 273 (1931), concerns a very similar situation. A bank in Wichita filed three actions to foreclose on three tracts of land owned by the mortgagor, M. C. Combs. A judgment was entered for the bank and against Combs in each case. On the same day as that judgment was entered, Katie Thomas was awarded a personal judgment against Combs and a judgment for foreclosure. Later, some of the land involved in the bank’s case was sold, with none of Thomas’ judgment having been satisfied.
According to the court, when two of the foreclosure lawsuits were filed, Thomas had no lien on those tracts. However, when Thomas won a judgment of foreclosure on one of the tracts, her judgment became a lien on the other tracts. As support for the last contention, the court cited R.S. 1923, 60-3126, which stated: “Judgments of courts of record of this state, and of courts of the United States rendered within this state, shall be hens on the real estate of the debtor within the county in which the judgment is rendered.” The court decided Thomas’ lien “originated in her judgment, and the [bank’s] hens were necessarily superior to the lien which [Thomas] acquired.” 133 Kan. at 595.
The modem version of the statute cited in McFall is K.S.A. 2001 Supp. 60-2202(a):
“Any judgment rendered in this state by a court of the United States or by a district court of this state in an action commenced under chapter 60 of the Kansas Statutes Annotated shall be a hen on the real estate of the judgment debtor within the county in which judgment is rendered. Except as provided in subsection (c), the hen shah be effective from the time at which the petition stating the claim against the judgment debtor was filed but not to exceed four months prior to the entry of the judgment.”
Statutory interpretation is a question of law, and this court’s review is unlimited. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Pursuant to 60-2202(a), the judgment against J. D. Homes for the nuisance was a hen on J. D. Homes’ real estate located in Johnson County. Raintree’s petition was filed on December 7, 1999, and the judgment was entered on June 29, 2000. Raintree’s lien was, therefore, effective on February 29, 2000. Premier s hen was effective on July 24,1997, the day the mortgage was recorded.
The trial court was correct in finding that Premiers hen had priority.
TRANSFERRED LIABILITY
Raintree claims that Premier became a transferee of the property when it filed a foreclosure action on the property and a receiver was appointed to manage the property. Premier asserts that it never held title to the Olathe property and any responsibility to abate the nuisance was with the new owner, A & H Properties, and not with Premier. A & H Properties purchased the property on March 30, 2001.
Raintree’s first argument is that Premier is liable for the abatement because Premier filed a foreclosure action on the property. Although this issue is one of first impression in Kansas, the legal theory behind it can be analogized to the hen theory/title theory of mortgage law.
Kansas is a lien theory state, not a title theory state. “In a ‘title theory’ jurisdiction . . . the mortgage is viewed as a form of title to property. [Citation omitted.] In hen theory states, a mortgagee is not entitled to immediate possession of the property upon default because the mortgage is merely a hen and not a form of title. [Citations omitted.]” Hoelting Enterprises v. Trailridge Investors, L.P., 17 Kan. App. 2d 777, 783, 844 P.2d 745, rev. denied 252 Kan. 1092 (1993).
Under Kansas law, a mortgagee does not acquire an interest in the property, either before or after the promise to pay is broken, “but acquires only a lien securing the indebtedness described in the instrument.” ’ [Citations omitted.]” 17 Kan. App. 2d at 783.
Premier, as the mortgagee, only had a lien on the property and was not entitled to possess the property. Since Premier could not possess the property upon filing a foreclosure action, it logically follows that it should not be hable for nuisance abatement on that property. The filing of the foreclosure action by Premier was an acceptable exercise of its rights under the mortgage. If the lawwere as Raintree suggests, no mortgagee would ever foreclose on a piece of property for fear it would be liable for judgments on the property.
Premier did not become liable for the nuisance abatement simply by filing a foreclosure action against Raintree. If that were the case, mortgage lending would carry a potentially heavy price for the lending institution. Such a decision would have a chilling effect on mortgage lending in this state. In addition, assessing liability against Premier would ran counter to the notion that Kansas is a hen theory state.
Raintree’s second argument that Premier is liable for the abatement because a receiver was appointed to manage the property also fails.
Pursuant to K.S.A. 60-1301, a district judge has the authority to appoint a receiver, and the receiver’s duty “shall be to keep, preserve, and manage all property and protect any business or business interest entrusted to the receiver” pending the determination of the case.
Here, a receiver was appointed by the court in January 2000. The duties of the receiver included:
“1. . . . (i) manag[ing] said real estate and [taking] whatever actions are necessary to protect, preserve and prevent the same from further waste, damage or destruction; (ii) [taking] any action necessary to complete construction of the improvements if it is deemed to be in the best interest of [Premier]; (iii) collecting] all income, rents and profits; and (iv) [having] the net proceeds derived from the collection of all income, rents and profits applied to the indebtedness of [J. D. Homes] owed to [Premier],
“2. That this receivership shall continue until further Order of this Court.
“3. That the receiver shall submit a final accounting of its receipts and disbursements upon termination of the receivership.”
“A receivership does not operate to alter, modify, or terminate obligations and liabilities of the corporation or person in receivership.” 65 Am. Jur. 2d, Receivers § 284, p. 867. The issue of whether a receiver is liable for a nuisance created before the receiver was appointed is one of first impression in Kansas. As such, the law of sister states will need to be considered.
In Bartlett v. Cicero Light Co., 177 Ill. 68, 52 N.E. 339 (1898), a receiver was appointed for Cicero Light, Heat and Power Com pany (Cicero). Two months later, and still during the receiver s appointment, a young man was killed while working at Cicero. The machinery which killed the man was negligently installed prior to Cicero being placed in receivership. The man’s father filed an action to recover for the death of his son. The father sued Cicero, claiming, inter alia, the receiver negligently managed the machinery his son came into contact with, thereby causing his death At the time the suit was filed, the receiver had been discharged by a stipulation of the parties.
The Supreme Court of Illinois identified the issue in the case as whether Cicero could be liable for damages that occurred during the course of the receivership. 177 Ill. at 73. The court held that “a judgment, rendered while the receiver is in possession, should provide for its payment out of the trust fund or the property in the hands of the receiver or under his control.” 177 Ill. at 76. Since the receiver had been discharged, however, Cicero itself was hable. 177 Id. at 76.
Raintree’s case differs from Bartlett, though, in an important respect. The receiver did not cause the damages Raintree wants Premier to pay for; J. D. Homes admitted to causing the nuisance before the receiver was appointed.
In Bush, Recr., v. Stephens, 131 Ark. 133, 197 S.W. 1157 (1917), Stephens sued a railroad company and its receiver, Bush, for negligent construction of a railroad over a water source. The trial court did not allow a judgment against Bush for damages arising from a tort committed by the railroad company before Bush was appointed.
On appeal, the Arkansas Supreme Court originally ruled that Bush could be sued by Stephens because as a receiver, Bush stood in the shoes of the corporation for litigation purposes. 131 Ark. at 140. On a rehearing, however, the court reversed itself, ruling it was in error when it held that Stephens was entitled to a judgment against Bush. 131 Ark. at 141. The court cited cases from Maryland, New York, and Arkansas in reaching its decision. 131 Ark. at 141-42.
The gravamen of the court’s decision was that a receiver cannot be liable for torts committed prior to his or her appointment. 131 Ark. at 141. An action for negligence brought against a receiver for actions that happened prior to his or her appointment cannot be sustained. 131 Ark. at 141. The corporation for which the receiver is appointed is still responsible for its actions, contracts, and covenants, much as if the receiver did not exist. 131 Ark. at 142.
Here, a receiver was appointed, and Raintree seeks to have Premier held responsible for abating a nuisance that existed prior to the receiver’s appointment. Under the persuasive precedent of Bush, such an argument must fail. Premier was not responsible for the abatement of the nuisance; therefore, no liability should attach. The trial court was correct.
We have considered appellee’s motion for attorney fees and deny the motion.
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Brazil, J.:
Gary Frost appeals from the district court’s dismissal of his cause of action for failure to state a claim against Cook. The cause of action originated in small claims court and was before the district court on appeal. Frost argues the trial court erred in dismissing his claim and in awarding costs to Cook.
We agree and reverse and remand with directions.
Frost lived at Landmark Plaza Apartments in Topeka. In March 2001, he discovered his bicycle was missing and at that time believed it had been stolen. Frost claims that in September 2001, he was told by a custodian that he had been instructed by the manager to cut the chain and move the bicycle outside the fence. Frost spoke to the new manager and inquired whether the complex would reimburse him for the loss of his bicycle. The new manager advised him there was nothing she could do for him.
Frost filed a petition in small claims court seeking reimbursement for his bicycle. Janis Cook, the alleged owner of the apartment complex, was the named defendant. The case was heard on November 2, 2001, in small claims court, at which time Cook did not appear, and a default judgment was entered in favor of Frost. Cook filed a timely notice of appeal to the district court.
Prior to trial at the district court, Frost filed a motion to dismiss. In the motion, Frost argued Cook failed to comply with the proper statutory provision governing the procedure for setting aside a default judgment; thus, the district court lacked subject matter jurisdiction to hear the appeal. The district court denied the motion.
At trial, Frost put on his case in chief. At the close of Frost’s case, Cook moved the court for dismissal of Frost’s claim. At that time, before presentation of evidence by Cook, the court sustained Cook’s motion to dismiss on the basis Frost failed to establish what, if any, connection Cook had to the limited partnership that owned the apartment complex.
Frost was granted a default judgment because Cook failed to appear in small claims court. Cook then failed to file a motion to set aside the default judgment, opting instead to file a notice of appeal with the district court. On appeal to this court, Frost claims Cook’s failure to file a motion to set aside the default judgment deprived the district court of jurisdiction to hear the appeal. In the alternative, Frost contends that even if the district court had jurisdiction to hear the appeal, it erred in dismissing the claim because Cook failed to prove any grounds existed for relief from judgment under K.S.A. 60-260. Cook argues the appeal to the district court was proper under K.S.A. 2001 Supp. 61-3301, and the district court, having de novo review of the matter, did not err in dismissing Frost’s claim due to Frost’s failure to establish a prima facie case against Cook.
The issues in this appeal involve the interpretation and construction of statutes concerning small claims procedure and limited actions procedure. Interpretation of a statute is a question of law, and tire appellate court’s review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). Likewise, to the extent a jurisdictional question has been implicated, this court’s review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
K.S.A. 61-2702, the provision of the Small Claims Act that spells out the correlation with the Code of Civil Procedure for Limited Actions, states:
“This act shall apply to and be an alternative procedure for the processing of small claims pursuant to the code of civil procedure for limited actions, and the provisions of this act shall be part of and supplemental to the code of civil procedure for limited actions, and any acts amendatory thereof or supplemental thereto. Except as otherwise specifically provided or where a different or contrary provision is included in this act, the code of civil procedure for limited actions shall be applicable to the processing of small claims and judgments under this act.”
There is no provision pertaining to default judgments contained in the Small Claims Procedure Act. K.S.A. 2001 Supp. 61-3301, the default provision of the limited actions code, provides in relevant part:
“(a) The court may enter a default judgment in the following situations:
(2) If a defendant fails to appear at the time set for a pretrial or trial hereunder, judgment may be entered against the defendant at the request of the plaintiff without further notice to the defendant.
“(c) If a defendant seeks to set aside a default judgment for failure to appear at the time specified in the summons, the defendant shall file a motion not more than 10 days from the date of such judgment .... Any motion to set aside a default judgment, except for the time limits set forth above, shall be in accordance with the applicable provisions of subsection (b) of K.S.A. 60-260, and amendments thereto.”
K.S.A. 2001 Supp. 61-2709, the appeal provision of the Small Claims Act, provides in relevant part:
“(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, other than the judge from which the appeal is taken. ... 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 attorney fees incurred by the appellee on appeal.”
K.S.A. 2001 Supp. 61-2709 specifies that an appeal maybe taken from any judgment under the Small Claims Procedure Act. K.S.A. 2001 Supp. 61-3301 specifies that if a defendant seeks to set aside a default judgment for failure to appear, the defendant shall file a motion not more than 10 days from the date of the default judgment. Herein lies the conflict.
Frost argues the failure of Cook to comply with the mandatory language in K.S.A. 2001 Supp. 61-3301 deprived the district court of jurisdiction to hear the appeal. Cook argues K.S.A. 2001 Supp. 61-2709, which specifically applies to small claims appeals, super-cedes K.S.A. 2001 Supp. 61-3301, a limited actions statute, and allows an appeal from any judgment. In essence, Cook is claiming she did not seek to set aside the default judgment, and instead opted to appeal the decision of the small claims court.
We conclude that on this limited issue, the failure to file a motion for relief from judgment does not render the district court without jurisdiction to hear the appeal when a timely notice of appeal has been filed with the district court. This ruling, however, as will be illustrated in the second part of this issue, is academic to the ultimate outcome of this appeal.
K.S.A. 2001 Supp. 61-2709 provides that “[a]ll appeals shall be tried and determined de novo before a district judge.” Here, Frost presented evidence and the district court dismissed the case at the close of Frost’s case on the basis that Frost failed to establish what, if any, connection Cook had to the limited partnership that owned the apartment complex. On appeal, Frost contends the district court only had authority to rule on the propriety of the default judgment rendered by the small claims court and exceeded its scope of review when it ruled on the merits of the case.
In Armstrong v. Lowell H. Listrom & Co., 11 Kan. App. 2d 448, 725 P.2d 540 (1986), a panel of this court discussed the scope of review to be applied to appeals taken under K.S.A. 61-2709. There, the court stated:
“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. [Citations omitted.]” (Emphasis added.) Armstrong, II Kan. App. 2d at 452.
In the instant case, the small claims court granted a default judgment in favor of Frost because Cook failed to appear. Thus, the district court was limited to making an independent determination of whether the small claims court erred in granting the default judgment. The district court’s authority did not extend to deciding the case on its merits. If it did, the purpose of the Small Claims Act would be frustrated. There would be no penalty for failing to appear in small claims court.
Cook’s appeal to the district court was an appeal from the default judgment entered against her by the small claims court. Unfortunately for Cook, she did not file a motion to set aside the default judgment in accordance with K.S.A. 60-260(b), as set forth in K.S.A. 2001 Supp. 61-3301(c). Thus, the record was void of any reason why Cook should have been granted relief from judgment. There was no claim of excusable neglect, fraud, or a void judgment. Stated another way, there was nothing in the record for the district court to review. Had Cook filed a motion in accordance with K.S.A. 60-260(b), and the small claims court had still granted the default judgment, there would have been something of substance over which the district court could have conducted a de novo review.
In conclusion, there is no statute that specifies that a failure to file a motion to set aside a default judgment deprives the district court of jurisdiction to hear the appeal. However, the issue is really one of semantics. Although not jurisdictional, Cook’s failure to file a motion to set aside a default judgment was still fatal to her appeal to the district court. It is hard to imagine a scenario where the defendant could prevail on appeal if that defendant failed to file a motion to set aside the default judgment in small claims court. If a defendant fails to file the motion, there is nothing in the record for the district court to review. Here, the district court exceeded its authority by conducting a trial and ruling on the merits.
Having reversed the district court, we therefore vacate the court’s award of court costs to Cook. Further, K.S.A. 2001 Supp. 61-2709 provides that if an appellee (in this case, Frost) is successful on appeal to the district court, the court shall award to the appellee, as part of the costs, reasonable attorney fees incurred by the appellee on appeal.
We reverse and remand to the district court with directions to award costs and reasonable attorney fees to Frost.
Reversed and remanded with directions. | [
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Johnson J.:
Keontis Hall appeals his sentencing on two counts of aiding a felon. Specifically, Hall asserts the district court illegally imposed a probation term of 60 months and erroneously ordered him to pay restitution. We reverse and remand.
Hall drove a vehicle from which two passengers shot at another vehicle, resulting in one person’s death and two others being injured. One of Hall’s passengers had been involved in an altercation earlier in the day, and Hall claimed he believed he was transporting his friends to a fist fight. Hall denied any knowledge that the passengers possessed firearms. However, in the aftermath of the shooting, Hall agreed to deny all knowledge of the incident and to assist the shooters in formulating an alibi.
The State initially charged Hall witii one count of first-degree murder and two counts of attempted first-degree murder. However, Hall pled guilty to an amended complaint charging two counts of aiding a felon, a severity level 8 nonperson felony, in violation of K.S.A. 21-3812(a). The district court imposed a sen tence of 60 months’ probation, with two consecutive underlying prison terms of 9 months. Additionally, Hall was ordered to pay $106,808.50 in restitution for the shooting victims’ funeral and medical expenses and property damage.
Initially, we address the State’s suggestion at oral argument that the appeal may be moot because Hall’s probation was revoked 10 months after sentencing, and he was transferred to the custody of the Department of Corrections to serve his underlying sentences. The parties were directed to provide additional information and authority on the mootness issue. The State’s submission was insufficient to persuade us that the dismissal of this appeal will have no impact on Hall. We were not advised whether Hall has appealed his probation revocation. If the revocation is overturned, the length of Hall’s probation will be relevant. Further, the State has not addressed how the revocation affects the enforcement of the restitution judgment by the victims. See K.S.A. 22-3424(d) and K.S.A. 60-4301 et seq. Therefore, we will proceed to consider the appeal on its merits. 1
LENGTH OF PROBATION
Hall first argues the district court’s imposition of 60 months’ probation did not conform to the statutory provisions of K.S.A. 2001 Supp. 21-4611 and is, therefore, illegal. See State v. Duke, 263 Kan. 193, 193-94, 946 P.2d 1375 (1997). K.S.A. 22-3504 grants this court authority to correct an illegal sentence. We have unlimited review on a question of statutory interpretation. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Hall’s presumptive sentence was a maximum of 18 months’ probation. See K.S.A. 2001 Supp. 21-4611(c)(4). The district court may extend probation under K.S.A. 2001 Supp. 21-4611(c)(5), which provides:
“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.”
The maximum authorized probation term is 60 months or the maximum possible prison term, whichever is longer. K.S.A. 2001 Supp. 21-4611(c)(6).
The trial court explained that the extended probation was necessary because of the amount of restitution ordered. Hall complains of the district court’s failure to make the requisite findings that Hall was a danger to society or that his welfare would not be served by the shorter probationary period. Hall contends that the failure to set forth with particularity the public safety or inmate welfare reasons renders tíre longer than standard probation term an illegal sentence. A panel of this court recently found that the extension of probation without the requisite findings of K.S.A. 2000 Supp. 21-4611(c)(5) is an abuse of discretion, resulting in an illegal sentence. State v. Jones, 30 Kan. App. 2d 210, Syl. ¶ 6, 41 P.3d 293 (2002) (ordered published by the Kansas Supreme Court on February 8, 2002).
However, as Hall acknowledges, K.S.A. 2001 Supp. 21-4611(c)(7) specifically addresses a probationary period where restitution has been ordered. The statute provides, in relevant part: “If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.” At oral argument, Hall contended that provision does not permit an initial probationary period longer than 18 months, but rather it simply permits the district court to extend probation if restitution is not paid during the initial term of probation. However, because of our determination on the restitution issue, we need not address whether 21-4611(c)(7) permitted the district court to initially order 60 months’ probation.
We reverse the district court’s imposition of 60 months’ probation and remand for the imposition of a probationaiy period of up to 18 months in length, to be effective in the event Hall successfully challenges the revocation of his probation.
RESTITUTION
Hall argues that the district court erred in ordering him to pay restitution. We review a district court’s restitution order for an abuse of discretion. State v. Beechum, 251 Kan. 194, 203, 833 P.2d 988 (1992). Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
K.S.A. 2001 Supp. 21-4610(d)(1) authorizes the district court to order the defendant to malee restitution to an aggrieved party for the damage or loss caused by defendant’s crime. Hall does not challenge the amount of the ordered restitution, albeit one might question the efficacy of ordering restitution which would require payment of approximately $1,780 per month over the maximum term of probation. Hall contends the victims’ damages were inflicted by the shooting, the shooting was completed by the time Hall aided the shooters in establishing an alibi, and there was no causal connection between Hall’s crime of aiding a felon and the victims’ previously incurred losses.
The State counters that Hall was originally charged with aiding and abetting the shooters, a fact known to the sentencing court, and that Hall’s crimes cannot be severed from the underlying felonies. Further, the State, citing State v. Turner, 22 Kan. App. 2d 564, 919 P.2d 370 (1996), contends that the statute does not preclude the district court from ordering restitution on crimes to which the defendant did not plead.
In State v. Ball, 255 Kan. 694, 701, 877 P.2d 955 (1994), the Kansas Supreme Court determined that the restitution statute did not limit the district court’s authority to order restitution on charges dismissed as part of a plea agreement. However, in that case, the defendant had agreed to pay restitution on all of the originally charged crimes in return for the dismissal of some of the counts. In Turner, the defendant was charged with four counts of forgery, two of which were dismissed in exchange for a guilty plea. Turner had not agreed to pay restitution on the dismissed counts. Turner extended the Ball holding to grant the district court authority to order restitution on dismissed counts even though the defendant had not admitted the allegations of the dismissed counts or agreed to pay restitution on them. 22 Kan. App. 2d at 566-67.
The Ball holding is necessary for the orderly administration of criminal justice consistent with the protection of the victims of crime. Our courts could not handle the criminal caseload without plea arrangements which typically involve the dismissal of charges. Prosecutors can avoid the problem of selecting which victims will receive restitution by extracting an agreement that the defendant pay all of the crime spree victims. However, extending the district court’s authority to order disputed restitution on charges which are not admitted creates the potential for unfairness. If a complaint contains crimes which the defendant did not commit, he or she would be in the untenable position of choosing whether to go to trial on all of the charges or to plead guilty to the crimes actually committed, but pay the victims of another person’s crimes.
Nevertheless, Hall’s situation is factually distinguishable from both Ball and Turner, which involved multiple counts of direct criminal activity. Hall’s plea arrangement contained no agreement for restitution, and he adamantly opposed the restitution order in the district court. The offense of conviction, aiding a felon, is sufficiently distinct both in nature and in temporal proximity from the acts actually causing the damages, the shooting, to call into question the propriety of the restitution award. A nexus must exist between the crime of conviction and the conduct for which restitution was imposed. Cf. State v. Hymer, 271 Kan. 716, 724, 26 P.3d 63 (2001) (vacating restitution order where the payment had been originally ordered in a prior unrelated case). Hall’s criminal activity, while arguably part of the chain of events, occurred well after the shooting. Hall’s assisting the shooters with their false alibis did not cause the victims’ damages. The State chose to abandon its efforts to tie Hall to the shooting, perhaps because the evidence was insufficient to do so. Extending Ball to cover the facts of this case would effectively nullify the causation requirement of K.S.A. 2001 Supp. 21-4610(d)(1).
We reverse and remand the imposition of 60 months’ probation and vacate the district court’s order of restitution. | [
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Green, J.:
Adrian M. Requena was convicted by a jury of rape. Requena was charged under the theory that he had sexual intercourse with J.C. when she was incapable of giving consent because of her medical conditions or because of the effects of her medications or both, which conditions were known by Requena or were reasonably apparent to him. K.S.A. 2000 Supp. 21-3502(a)(l)(C). Requena argues on appeal that there was insufficient evidence to support his conviction because J.C. clearly understood the nature and consequences of her sexual intercourse with him and consented to it. Moreover, Requena maintains that he was unaware or it was not apparent to him that J.C. lacked the capacity to consent. In addition, he contends that the trial court erred when it failed to instruct the jury on the meaning of “incapable of giving consent.” Finally, he contends that the trial court abused its discretion when it failed to consider his motion for new trial. We disagree and affirm.
J.C. was diagnosed with multiple sclerosis in July 1989. She also suffered from fibromyalgia, osteoarthritis, degenerative joint disease, mitrovalve prolapse, gout, and alcoholism. She had experienced paralyzing depression since 1995, and she had extreme fatigue and memoiy loss.
In August 1998, Susan Andrey moved in with J.C. because J.C.’s conditions were deteriorating and she needed help with driving, bathing, and other household chores.
J.C. and Andrey became acquainted with Requena at the 12-step program at Alcoholics Anonymous (AA) meetings in the winter of 1998. J.C. and Requena played cards with other friends at the fellowship, and they watched videos together at J.C.’s house. J.C. considered Requena to be her friend. J.C. testified he was veiy helpful to her; he drove her to see friends, fixed her son’s car, and took care of her cat while she was gone. J.C. was 49 and Requena was 31 years old, and there was no physical intimacy or sexual relationship between them.
In March 1999, J.C. was taking various medications, including Prozac and Remeron, a sleeping medication. On March 26, 1999, J.C. and Andrey went to Burger King for dinner and to the American Legion for bingo games. During the bingo game, J.C. took a Remeron tablet. J.C. fell asleep at the bingo table. Andrey waited until the crowd of bingo players had left, and then she helped J.C. to the car.
Andrey and J.C. went home at approximately 10 p.m., and Andrey put J.C. in a chair, where she fell asleep. Andrey then took J.C. to her bedroom, but J.C. could not take off her jeans because they were tight. They decided J.C/ would just have to sleep in her clothes. When Andrey left the room, J.C. was wearing a T-shirt, sweatshirt, jeans, and socks.
The next thing that J.C. remembered was Andrey asking her, “What was Adrian doing naked in your bed this morning?” J.C. replied, “Adrian, are you sure you don’t mean Robert?” This conversation occurred about 10 a.m. J.C. realized Robert was in a halfway house in Wichita, so it could not have been him; she was puzzled but went back to sleep. She woke up close to noon and went to the bathroom. She was surprised that she had on only her T-shirt and nothing else. J.C. had general soreness in the vaginal area, and her thighs were a little more sore than normal.
Andrey went to an AA meeting that night and returned around 9:30 p.m. J.C. was awake, and they talked about the incident. J.C. decided to report it to the police and to go to the hospital for a rape exam.
J.C.’s memoiy began to resurface during the rape exam and an interview with Officer Tim Baker. J.C. recalled having oral sex performed on her and having a penis in her vagina accompanied by quite a bit of pain. She further recalled having her legs around the man and, feeling the back of his head, saying, “Oh, Robert, you didn’t cut your braid off, did you?”
Requena was charged with rape and aggravated burglary. At trial, Diana Schunn, a registered nurse who examined J.C., testified J.C.’s injuries were “consistent with blunt penetrating trauma that we typically see in history of sexual assault.” Stephen Greer, a mutual friend of J.C. and Requena, testified he received a letter from Requena which stated:
“Steve, I was wondering if you would call [J.C.] and ask her why she would want to put me away for 20 years. I didn’t rape her. We had sex, and she knows it. I still want us to stay together so I can help her, but only if she wants to.”
Requena did not testify or present any other witnesses on his behalf.
Requena was found guilty of rape — sexual intercourse with J.C. when she was incapable of giving consent because of mental deficiency or disease or when she was incapable of giving consent because of tbe effect of any alcoholic liquor, narcotic, drug, or other substance, which condition was known by the offender or was reasonably apparent to the offender. See K.S.A. 2000 Supp. 21-3502(a)(l)(C).
After the jury convicted Requena of rape, he moved for a new trial. The trial court, however, determined that because the motion had been filed late, it had no jurisdiction to consider the motion.
Requena argues on appeal that there was insufficient evidence to support the conviction for rape because J.C. clearly understood the nature and consequences of her sexual intercourse with him and consented to it. Moreover, Requena asserts that he was unaware or it was not apparent to him that J.C. lacked capacity to consent.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Incapacity to consent
In State v. Chaney, 269 Kan. 10, 5 P.3d 492 (2000), the single issue was whether there was sufficient evidence to support Chaney’s rape conviction under K.S.A. 21-3502(a)(1)(C) (victim incapable of giving consent because of the effect of alcohol). Our Supreme Court found there was sufficient evidence the victim was both psychologically and physiologically impaired due to the effects of alcohol, disagreeing with an earlier determination by the Court of Appeals that a rape victim would have to be intoxicated to the point of unconsciousness to be unable to consent. 269 Kan. at 19-20.
The test for consent under this rape statute provision is
“whether the individual understands the nature and consequences of the proposed act. [Citation omitted.] Therefore, in order to preserve the constitutionality of the provision, the definition of ‘nature and consequences’ must be sufficiently clear to permit the person proposing sex, and the jury, to discern whether the individual can give legal consent, if an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. Anything more open-ended would become impermissibly vague.” State v. Ice, 27 Kan. App. 2d 1, 4-5, 997 P.2d 737 (2000).
Requena points to several facts which he asserts are inconsistent with a finding of J.C.’s lack of capacity to consent: (1) J.C. maintained significant control over her own life, and she had never been declared incompetent; (2) J.C. controlled her own medications; and (3) J.C. was found to be competent to testify over defense objection. Requena further argues that J.C. had experienced varying stages of consciousness and lucidity and that no evidence was presented that J.C. was actually unconscious or incapacitated at the time of the alleged incident.
According to Chaney, unconsciousness is not required to show inability to consent. 269 Kan. at 19. Furthermore, from the evidence presented, the jury could have concluded that because of the effects of J.C.’s various medications and because of her worsening medical condition, these circumstances prevented her from consenting to sex. The Chaney court stated that we should give great deference to such a finding. 269 Kan. at 20.
Moreover, it is a non sequitur to conclude from the premise, based on factors 1, 2, and 3, cited earlier by Requena, that therefore J.C. had the capacity to consent to sexual intercourse at the particular time it began. Such a conclusion is unjustified by the premise. J.C. could have possessed all the qualities mentioned under these factors, yet still not have had the capacity to consent when Requena commenced the act of sexual intercourse with her. As a result, this argument fails.
Knowledge
The rape conviction under K.S.A. 2000 Supp. 21-3502(a)(l)(C) requires a finding that Requena was aware or that it was reasonably apparent to him that J.C. lacked capacity to consent. Requena argues there was not sufficient evidence to establish this knowledge.
Requena claims it is “entirely possible, based upon the evidence presented, that J.C. gave every appearance of being fully conscious and actively participating in consensual sex even though she was not fully conscious at the time.” However, Requena has failed to acknowledge a possible alternative scenario. It is entirely possible, based on the evidence presented, that Requena was aware of J.C.’s confused mental condition or that because of her condition, it was reasonably apparent to him that she did not have the capacity to consent to having sex with him.
J.C.’s own testimony shows that she did not recall the incident veiy clearly and that she was incapable of recognizing Requena. There is sufficient evidence that J.C. was both psychologically and physiologically impaired due to the effects of her medical conditions and medications. See Chaney, 269 Kan. at 20. As a result, Requena’s argument fails.
Definition of “Incapable of Giving Consent”
Requena next argues that the trial court should have given a juiy instruction on the meaning of “incapable of giving consent.”
At trial, Requena failed to request a jury instruction to define the meaning of “incapable of giving consent.” Therefore, we must decide if the failure to give this instruction is clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction there is a real possibility the jury would have handed down a different verdict had the instruction been given. See State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
In Keim v. State, 13 Kan. App. 2d 604, 605, 777 P.2d 278 (1989), Keim contended the words “incapable of giving consent because of mental deficiency or disease” were unconstitutionally vague, but the court upheld the constitutionality of the statute, stating:
“The language of [the statute] sufficiently warns a person of common intelligence that engaging in sexual intercourse with one who is mentally handicapped to a degree that he or she cannot understand the nature and consequences of engaging in the act is prohibited. Under normal circumstances a mental incapacity to consent would be apparent in ordinary social intercourse. The fact that further questioning may be necessary in some cases to determine if one’s partner fully understands the nature and consequences of sexual intercourse, does not render the statute unconstitutional,” 13 Kan. App. 2d at 608.
Dealing with the similar language of aggravated criminal sodomy in State v. Juarez, 19 Kan. App. 2d 37, 40, 861 P.2d 1382 (1993), rev. denied 254 Kan. 1009 (1994), the court stated:
“Keim held that a person of common intelligence is capable of determining whether an individual’s mental deficiency renders him or her incapable of giving consent. A juror, by definition, is a person of common intelligence. Therefore, when the capacity of a mentally deficient individual to consent to a sexual act is at issue, the jury is capable of determining whether that individual is able to understand the nature and consequences of engaging in such an act. In reaching its determination, the jury should evaluate the individual’s behavior in normal social intercourse as well as consider any expert testimony concerning the individual’s mental deficiency.”
Although Requena acknowledges the above holdings, he insists that the breadth of the phrase “incapable of giving consent” leaves too much room for the jury to speculate.
The trial court need not define eveiy word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury or cause it to speculate, that additional terms should be defined. A term which is widely used and which is readily comprehensible need not have a defining instruction. The term “incapable of giving consent” is one which people of common intelligence and understanding can comprehend and is not a term that requires definition. See State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110 (1979).
Motion for New Trial
Turning our attention to Requena’s last argument, he argues that the trial court erred in refusing to consider his motion for new trial. K.S.A. 22-3501 in part provides:
“A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.”
On December 2, 1999, the jury found Requena guilty of rape and not guilty of aggravated burglary. Requena sent a note to the court requesting an appointment of new counsel on January 10, 2000. A hearing was held on the next day, and Requena stated to the court that he was not satisfied with the assistance he had received from his trial counsel and requested new counsel. The court told the trial counsel to file a motion for new trial before January-18; however, the counsel stated he could not argue his own ineffective assistance of counsel in a motion for new trial. The trial counsel made a motion to withdraw and a motion for new trial at the end of the hearing. The court denied the motion to appoint new counsel on January 14,2000, stating that appointing new counsel between trial and sentencing would be more detrimental than helpful to Requena. The trial counsel moved to withdraw because he could not present the motion for new trial based on ineffective assistance of counsel due to the conflict of interest. The court appointed new counsel on Januaiy 27, 2000. A pro se motion for new trial was filed on February 15, 2000.
The court denied the motion for new trial, stating the court did not have jurisdiction after the 10-day period from the jury verdict. However, the court proceeded to discuss the merits of Requena’s claim of ineffective assistance of counsel.
The ineffective assistance of counsel inquiry involves mixed questions of law and fact, which are subject to de novo review. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).
Before this court will find that a defendant was deprived of effective assistance of trial counsel, the defendant must prove that (1) counsel’s performance was sufficiently deficient to render that performance below that guaranteed by the Sixth Amendment, and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
Requena’s complaints of counsel’s ineffectiveness included: (1) counsel’s failure to request that the judge recuse himself because he presided over Requena’s criminal case in 1989; (2) counsel’s failure to particularly cross-examine Greer, as to the date of the intercourse; (3) counsel’s failure to present a witness regarding the medical examination of J.C.; and (4) counsel’s failure to cross-examine Schunn regarding whether the sex was forcible rape.
Turning our attention to Requena’s first complaint, we note that there is nothing in the record on appeal indicating that Requena requested the judge to recuse himself before the trial. Furthermore, we note that Requena failed to argue any prejudice or bias by the trial court. Second, as to the trial counsel’s failure to cross-examine Greer, the record indicates that the court asked trial counsel whether he had had an opportunity to consult with his client and determine whether he wanted to ask the witness any questions. The trial counsel indicated that he had. Third, Requena wanted to call a forensic scientist with the KBI to present findings of an examination of some items. As the trial court stated, it is doubtful the witness could have presented evidence to show the sexual act was consensual as opposed to nonconsensual. Fourth, counsel cross-examined Schunn, and Schunn testified that she did not make any statement as to whether the sexual act could be consistent with consensual or nonconsensual sex.
Requena’s rape conviction was based on the victim’s incapacity to consent because of her disease or because of the effect of her medications and was not based on force or fear. Therefore, it is questionable whether the evidence that Requena wanted to present would have been helpful to his defense.
The trial court was aware of Requena’s dissatisfaction with his counsel following the guilty verdict, and there was no new information in his motion for new trial. The trial court stated: “Based on what I know of this trial and based on my remembrance of it and based on the complaints that you’ve made, I cannot conclude that Mr. Patterson failed in his responsibility as your counsel.”
Regarding the trial court’s determination on the issue of ineffective assistance of counsel, this court stated:
“We believe deference should be shown to the observations of the trial judge who was in a much more advantageous position than this court to appreciate the tactics of counsel. Moreover, the decisions now being questioned by [the defendant] are clearly within the province of the defense counsel after consultation with his client. [Citation omitted.]” State v. Smith, 27 Kan. App. 2d 152, 154, 999 P.2d 280 (2000).
Under the circumstances, the trial court did not abuse its discretion in refusing to consider Requena’s untimely motion for new trial. Even assuming it was an abuse of discretion, the trial court did consider the merits of the motion — Requena’s claim of ineffective assistance of counsel. The trial court did not find Requena’s trial counsel’s performance sufficiently deficient to render that performance below that guaranteed by the Constitution, As a result, there was no reversible error in denying the motion for new trial. See Rice, 261 Kan. at 599.
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Beier, J.:
Defendant Van Diest Supply Company (Van Diest) appeals summary judgment in favor of plaintiffs Guaranty State Bank & Trust Co. (GSB) and the North Central Regional Planning Commission (the Commission) in their conversion action. We must decide whether Van Diest acquired a purchase money security interest that takes priority over the security interests of GSB and the Commission.
Both GSB and the Commission made loans to debtor Barnard Grain Company (Barnard). On May 24,1994, GSB filed a financing statement with the Kansas Secretary of State, perfecting a security interest in certain collateral, including all of Barnard’s inventory now and hereafter owned. GSB filed a continuation statement on March 17, 1999. On June 28, 1995, the Commission filed a financing statement perfecting a security interest in the same collateral. It filed a continuation statement on June 29, 1995.
Barnard eventually got behind in its payments to Van Diest for agricultural chemicals purchased in 1997. On January 20, 1998, Brad Hickenbottom, Van Diest’s credit manager, met with Barnard’s president, Tom King, and GSB loan officer Myron Wolken for the purpose of obtaining two things: payment of the outstanding balance due to Van Diest and King’s signature on documents establishing Van Diest’s purchase money security interest (PMSI) in any agricultural chemicals to be sold to Barnard in the future. King had talked to Wolken before the meeting to ensure funds were available from GSB to pay Van Diest.
King signed the documents prior to Wolken’s arrival at the meeting. Testimony was conflicting on whether Wolken reviewed and approved the security documents after he arrived. Hickenbottom testified that Wolken did review the documents — a business security agreement, a guaranty, and a financing statement — and that the two of them discussed the documents and Barnard’s financial condition. Wolken testified that he knew Barnard and Van Diest were doing business, but that he neither reviewed nor was asked to review the documents. King testified that the conversation between Hickenbottom and Wolken was essentially an introduction and an exchange of pleasantries; he did not recall Wolken being asked to review any documents.
The Ván Diest security agreement and its financing statement, filed January 26, 1998, covered
“[a]ll of debtor’s property (including without limitation all inventoiy of agricultural chemicals and additives thereto) purchased or otherwise acquired from Secured Party; all cash and non-cash proceeds arising from or received upon die sale, exchange, or other disposition of such inventory or other property or of the proceeds thereof (including without limitation insurance proceeds payable by reason of loss or damage and returned or repossessed goods), whether such inventory, property or proceeds are now or hereafter acquired, existing or arising and wherever they may be located; and all substitutions therefore and additions and accessions thereto.”
Neither the security agreement nor the financing statement contained the phrase “purchase money security interest.”
Van Diest resumed selling agricultural chemicals to Barnard. As of November 22, 1999, the balance due was $31,872.14.
In December 1999, the board of directors of Barnard decided to start selling off its assets, and Van Diest deemed itself insecure as a result of conversations with King and Wolken. From February 22 to February 29, 2000, Van Diest removed approximately 536.5 gallons of chemicals, valued at $44,636.80, from the Barnard facility. Barnard knew about the removal and neither objected nor consented. Because Van Diest removed more chemical than it needed to cover Barnard’s debt, Van Diest later sent a refund check to Barnard.
The Commission filed a release of its security interest on June 15,2000. Three days later, GSB filed this action, alleging Van Diest committed a conversion when it removed the chemicals from Barnard’s facility. It later moved to join the Commission as an additional plaintiff because the Commission had also held an allegedly prior security interest in Barnard’s inventory. The district court granted the motion over Van Diest’s objections.
Van Diest filed a motion for summary judgment, arguing it had a PMSI that took priority over GSB’s security interest. GSB and the Commission then filed an amended petition, jointly claiming their security interests were prior to Van Diest’s. The amended petition specifically referred to the Commission’s perfected security interest as evidenced by the June 29, 1995, financing statement; it did not reveal that the Commission had released its security interest the previous summer.
In its answer to the amended petition, Van Diest asserted plaintiffs’ claims were barred by the doctrine of waiver; the Commission was not a legal entity and lacked standing to sue; plaintiffs’ claims were inconsistent and in conflict with each other; and plaintiffs’ counsel had a conflict of interest that precluded ethical representation of both plaintiffs.
Van Diest filed a motion to dismiss the Commission. The district court denied the motion, finding:
“2. Kansas has adopted the rule that the statutory authority to sue or to be sued need not be express, but can be implied. Board of Library Directors v. City of Fort Scott, 134 Kan. 586, 7 P.2d 533 (1932) held that the board of directors of the Fort Scott public library had standing to maintain an action in ejectment against the city of Fort Scott claiming title and possession to certain real estate. The court stated:
‘The statute does not in express terms say that the board may sue and be sued. We do not think it is necessary that express power be given by the statute to authorize an administrative board to maintain an action in court where such board has the power to own and control property. (Board of Park Commissioners v. Nashville, 134 Tenn. 612.) The power to own and control property is nugatory unless the party vested with such power may call upon the courts to protect it in the ownership and use of such property. The board is a creature of the law-a legal entity-on which the statute confers powers and faculties which are of no force or effect unless it may vindicate the rights conferred in the courts.’
The rule in City of Fort Scott was repeated in dicta in Lindenman v. Unscheid, 255 Kan. 610, 628-29, 875 P.2d 964 (1994). See also, NEA -Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 996 P.2d 821 (2000).
“3. Because plaintiff has the authority to own property it follows that it has standing to protect and recover its property.”
GSB and the Commission filed a joint motion for summary judgment, arguing Van Diest did not have a PMSI because it failed to provide written notification to either the Commission or GSB as required by K.S.A. 84-9-312(3)(b). The district court agreed and granted the motion:
“ ‘Notification in writing to the holder of the conflicting security interest’ means more than the holder having knowledge of the conflicting security interest, die knowledge must be communicated in a prescribed way, i. e. by written notice being delivered to the holder. See, Wade v. Wades Admr, et al., 81 Vt. 275, 69 Alt. 826 (1908).”
The court held that because Van Diesf s security interest was perfected after the perfection of the security interests of GSB and the Commission, Van Diest’s removal of the chemicals from the Barnard facility was a conversion. The court entered judgment in favor of GSB and the Commission in the amount of $44,636.80 plus interest and costs.
In this appeal, Van Diest continues to argue that it had acquired a PMSI in the chemicals it ended up removing from Barnard’s facility because it properly complied with tire notice requirements of K.S.A. 84-9-312(3), giving it priority over GSB. As for the Commission, Van Diest argues three points: (1) The district court’s judgment is void because it awards a single amount to GSB and the Commission, who have conflicting claims; (2) the Commission, a voluntary, unincorporated association, was improperly joiried as a plaintiff because it did not have the capacity to sue in its own name; and (3) the Commission had released its security interest before summary judgment was granted.
Adequacy of Van Diest’s Written Notice to GSB
K.S.A. 84-9-312(3) and (5) provide in relevant part:
“(3) A perfected purchase money security interest in inventory has priority over a conflicting security interest in tire same inventory and also has priority in identifiable cash proceeds received on or before the delivery of the inventory to a buyer if:
(a) The purchase money security interest is perfected at the time the debtor receives possession of the inventory; and
(b) except where excused by K.S.A. 84-9-319, and amendments thereto, the purchase money secured party gives notification in writing to the holder of the conflicting security interest if the holder had filed a financing statement covering the same types of inventory (i) before the date of die filing made by the purchase money secured party or (ii) before the beginning of the 21-day period where the purchase money security interest is temporarily perfected without filing or possession . . .; and
(c) the holder of the conflicting security interest receives the notification within five years before the debtor receives possession of the inventory; and
(d) the notification states that the person giving the notice has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type.
“(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4)), priority between conflicting security interests in the same collateral shall be determined according to the following rules:
(a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.”
K.S.A. 84-9-312 is a “pure race” statute, and a secured party first in time to perfect its security interest has priority over any prior unperfected security interest. J.I. Case Credit Corp. v. Foos, 11 Kan. App. 2d 185, Syl ¶ 2, 717 P.2d 1064, rev. denied 239 Kan. 694 (1986). An exception exists, however, for a PMSI. If a purchase money creditor follows the requirements of K.S.A. 84-9-312(3), its interest, even if perfected later in time, takes priority over an earlier perfected security interest in the same collateral.
Van Diest argues it complied with the statutory notice requirement for acquisition of a PMSI during the January 20, 1998, meeting among Hickenbottom, King, and Wolken. Because there is evidence that GSB’s representative, Wolken, reviewed and discussed the Van Diest security agreement and financing statement, Van Diest contends, notice of creation of a PMSI was sufficient. According to Van Diest, although the documents did not contain the term “purchase money security interest,” they clearly informed GSB that Van Diest expected to “ ‘extend credit and grant other financial accommodations’ ” to Barnard and that Barnard granted Van Diest a security interest in “ ‘all inventory of agricultural chemicals and additives thereto purchased or otherwise acquired’ ” from Van Diest. Relying on In re Daniels, 35 Bankr. 247 (Bankr. W.D. OMa. 1983), Van Diest argues this language was sufficient to alert GSB “that a purchase money transaction [was] at hand.”
In Daniels, the court considered whether a letter sent by the purchase money creditor to the financing creditor, stating the purchase money creditor was claiming a “security interest” rather than a “purchase money security interest” in certain inventory, was adequate notice under U.C.C. § 9-312(3)(b) and (d).
The court first noted that the Uniform Commercial Code, of which this section was a part, should be liberally construed to promote the underlying policies and purposes of the code, and the UCC comments indicated the section was designed for the protection of the prior secured creditor. Although the purchase money creditor did not use the term “PMSI” in this case, the court ruled “[t]he use of the terms ‘furniture or fixtures now owned or hereafter acquired’ and ‘boats and motors now owned or hereafter acquired’ should be clear indicators to a sophisticated commercial entity that a purchase money transaction is at hand.” 35 Bankr. at 251. The court buttressed its conclusion by noting that no creditor other than one acquiring a PMSI is required to forward any notice to a prior secured party. In other words, the mere effort to provide notice was indicative of the classification of the later security interest. Compare In re La Selle's Bicycle World, 120 Bankr. 579 (Bankr. N.D. Okla. 1990) (finding PMSI with priority over earlier perfected security interest despite failure of notice; county clerk erred in telling PMSI creditor no earlier security interests existed).
Research has revealed no Kansas cases that address whether the notice required under the statute must contain the words “purchase money security interest.” However, the Kansas Comment to K.S.A. 84-9-312(3), along with the plain language of the statute, appear to suggest inclusion is necessaiy:
“This subsection establishes a special priority rule for purchase money security interests in inventory. If the four hoops are jumped through, the purchase money security interest will prevail over a previously filed financing statement covering ‘all inventory,’ as to the inventory financed by the purchase money secured party. If the hoops are not jumped through, the prior filer will have priority under the ‘first to file’ rule of subsection (5). . . .
“In order to gain priority under this subsection, the purchase money lender must jump through four hoops: (1) the purchase money security interest must be perfected (normally by an executed security agreement and filing) by the time the debtor receives possession of the inventory, and not one second later; (2) the supplier or third-party purchase money lender must give notification in writing to any competing security interest which has been previously filed; (3) the holder of the competing interest must receive the written notification within the five year period before the debtor receives possession of the inventory (i.e., the purchase money creditor must renew the notification every five years); and (4) the notification must state that the purchase money creditor ‘has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type.’ ” (Emphasis added.)
In addition, several cases from other jurisdictions have required strict compliance with these requirements to grant priority to a PMSI. See, e.g., First Nat. Bank of Steeleville, N.A. v. Erb Equipment Co., Inc., 921 S.W.2d 57, 63 (Mo. App. 1996) (“[T]he treatment of purchase money security interests is an exception and as an exception the interest claiming that status must clearly appear to meet the requirements imposed.”); In re Superior Equipment, Inc., 195 Bankr. 77 (Bankr. C.D. Ill. 1996) (finding impossibility of compliance not recognized defense for purchase money creditor’s failure to give written notice); Steego Auto Parts Corp. v. Markey, 2 Ohio App. 3d 200, 441 N.E.2d 279 (1981) (no statutory authority permits waiver of notice requirements); Kimbell Foods Inc. v. Republic National Bank of Dallas, 557 F.2d 491 (5th Cir. 1977) (purchase money creditor lost priority status by failing to provide the prior creditor with written notice, despite prior creditor’s vague knowledge of purchase money creditor’s loan, expectation of hen acquisition).
We also look to the stated policy behind the statute. The Official UCC Comment provides:
“The reason for the additional requirement of notification is that typically the arrangement between an inventory secured party and his debtor will require the secured party to make periodic advances against incoming inventory or periodic releases of old inventory as new inventory is received. A fraudulent debtor may apply to the secured party for advances even though he has already given a security interest in the inventory to another secured party. The notification requirement protects the inventory financer in such a situation: if he has received notification, he will presumably not make an advance; if he has not received notification (or if the other interest does not qualify as a purchase money interest), any advance he may make will have priority.” K.S.A. 84-9-312, Official UCC Comment 3.
It follows that a PMSI creditor should make its intention to claim priority clear to earlier security interest holders. Permitting a PMSI holder to call its interest simply a “security interest” could mislead the earlier holder, leading it to assume it maintained its priority under the “first to file” rule and would be secure in making future advances.
In this case, Van Diest did not provide separate, explicit written notification to GSB of Van Diest’s claim to a PMSI in Barnard’s inventory. And, even if we accept Van Diest’s version of the January 1998 meeting, i.e., that GSB’s representative reviewed and discussed Van Diest’s security agreement and financing statement, neither document mentioned a PMSI in Barnard’s inventory. To serve the purpose of the notification requirement, we hold that strict compliance with K.S.A. 84-9-312(3) is required to establish a PMSI that will enjoy priority over earlier perfected security interests. Absent the explicit written notice required, GSB’s security interest took priority over Van Diest’s under K.S.A. 84-9-312(5)(a), and Van Diest’s removal of the chemicals from Barnard’s facility was a conversion.
Role of the Commission
As stated above, Van Diest raises three issues regarding the Commission’s role in this lawsuit. Regardless of whether the Commission was a proper party below, however, the outcome of this appeal would not change.
At the time summaiy judgment was granted to plaintiffs, Barnard owed GSB approximately $300,000 and owed the Commission $96,000. There was no dispute between GSB and the Commission over which of them held the superior security interest. GSB had perfected its security interest in Barnard’s inventory be fore the Commission perfected its security interest. Thus, under K.S.A. 84-9-312(5)(a), GSB’s security interest has priority, and all of the $44,636.80 judgment must be applied to reduce Barnard’s outstanding $300,000 debt. No amount will be left over to reduce the debt to the Commission, regardless of whether it was properly or improperly allowed to participate as a party plaintiff.
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Wahl, J.;
The trial court determined that title to Ruth Lasater’s home passed to her son outside her probate estate by virtue of his right of survivorship as a joint tenant. The Estate Recovery Unit of the Department of Social and Rehabilitation Services (SRS) ap peals. The case was submitted to the trial court on an agreed stipulation of facts, which reads:
“1. On or about December 23, 1991, Ruth I. Lasater established the ‘Ruth I. Lasater Revocable Trust’ and signed a ‘Declaration of Trust Ownership,’ a copy of which is attached and marked for reference as Exhibit ‘A’;
“2. On September 28, 2000, Ruth I. Lasater signed a ‘Trustee’s Deed,’ a copy of which is attached and marked for reference as Exhibit ‘B,’ which transferred real estate legally described as:
‘Lot Fourteen (14), Dudte’s Replat of Block Two (2), J.H. Anderson’s Addition to the City of Newton, Kansas’ from the ‘Ruth I. Lasater Revocable Trust’ to Ruth I. Lasater individually;
“3. On September 28, 2000, Ruth I. Lasater signed a ‘Quit Claim Deed,’ a copy of which is attached and marked for reference as Exhibit ‘C,’ which transferred the above-identified real estate from Ruth I. Lasater, individually, to Ruth I. Lasater and E. Bruce Lasater as joint owners; E. Bruce paid $680 or approximately 1% of the value of the property at the time of deed execution;
"4. On February 25, 2001, Ruth I. Lasater passed away in Wichita, Sedgwick County, Kansas.”
The deed conveying these interests reads:
“QUIT CLAIM DEED
RUTH I. LASATER, a single person
QUIT CLAIMS
to
RUTH I. LASATER and E. BRUCE LASATER
(family contribution, no monetary consideration given) all of her right, title and interest in and to the following described real estate located in the County of Harvey, State of Kansas, to-wit:
“Lot Fourteen (14), Dudte’s Replat of Block Two (2), J.H. Anderson’s Addition to the City of Newton, Kansas.
“It is the intent of tire grantor that as a result of such conveyance the ownership interest in the above-described property of Grantee, RUTH I. LASATER, shall be ninety-nine percent (99%) and the ownership interst [sic] in the above-described property of the other grantee, E. BRUCE LASATER, shall be one percent (1%). Such ownership interests shall govern all aspect [sic] of the joint tenancy ownership of the Grantees in said property, including but not limited to, right to income and ownership rights upon any later sale of, or partition or severance of such joint tenancy ownership interest in said property. This recitation of intent shall be interpreted so as to conclusively rebut any presumption under the law of equal joint tenancy ownership by the Grantees in the aforesaid property. Such recitation shall not be interpreted, however, in a manner which would defeat die survivorship rights of the surviving joint tenant to succeed to a predeceased joint tenant’s ownership interest in said property.”
Prior to Ruth’s death, she received $5,703.41 in Medicaid assistance as a result of her last illness. SRS initiated a creditor’s administration of Ruth’s estate making claim for reimbursement of her final medical expenses. At the time of her death, Ruth’s home was her only significant asset.
Deciding the case on stipulated facts, the trial court found that the quitclaim deed of September 28, 2000, established a joint tenancy with right of survivorship, and the title to Ruth’s home passed to her son as surviving joint tenant at the time of her death.
The question before this court is identical to that before the trial court. On the record of stipulated facts, the parties seek interpretation of the legal effect of Ruth’s quitclaim deed. The interpretation and legal effect of written documents are matters of law upon which our standard of review is unlimited. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53,959 P.2d 894 (1998). Where the controlling facts are based on written or documentary evidence or stipulations, this court has as good an opportunity to examine and consider the evidence as did the court below. Heimann v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997).
SRS claims the trial court erred in determining Ruth’s deed created a joint tenancy and contends Ruth’s interest in her home should have been administered in her estate subject to the claims of creditors rather than passing directly to her son outside of probate. SRS claims Ruth’s intent to create a joint tenancy was insufficiently clear to satisfy statutory requirements. Further, her deed created different percentage interests in Ruth and her son, violating the unity of interest required of joint tenants. Due to these flaws, SRS claims Ruth created a tenancy in common.
Lasater contends the trial court was correct and that Ruth clearly created a joint tenancy and that Ruth’s interest passed to him upon her death.
When construing the meaning of a deed, the intention of the grantor, as gathered from examination of the instrument as a whole, is the primary consideration. Bennett v. Humphreys, 159 Kan. 416, 419, 155 P.2d 431 (1945). The meaning of a document and the intent of the parties is determined from the four corners of an unambiguous instrument, harmonizing the language therein, if possible. An interpretation should not be reached by merely isolating one particular sentence or provision, but by construing and considering the full instrument in its entirety. In re Estate of Kruckenberg, 171 Kan. 450, 454, 233 P.2d 472 (1951).
In the distant past, the common law favored creation of joint tenancies. Transfers to two or more persons were presumed to create joint tenancies and not tenancies in common. This presumption has been reversed by statute in Kansas, as in most other states. By current Kansas statute, when a deed creating a cotenancy in two or more persons is found to be ambiguous, there is a presumption in favor of creation of a tenancy in common: “Real or personal property granted or devised to two or more persons . . . shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created.” K.S.A. 58-501.
In addition to meeting the statutory requirement of clarity, a grant transferring property in joint tenancy must satisfy the traditional doctrine of “four unities.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988); Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 (1966). These unities are: (1) unity of interest, (2) unity of title, (3) unity of time, and (4) unity of possession. An interest or estate must be acquired by all cotenants, by the same conveyance, commencing at the same time, and held for the same term of undivided possession. It is interesting to note that there is no requirement of unity of equality of interests.
It is true, however, that a very common characteristic of joint tenancies is equality of ownership interests among the joint tenants. The Kansas Supreme Court has recognized that presumption of equal ownership, but it has recognized that presumption to be rebuttable. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 463, 574 P.2d 1382 (1978).
We find Ruth’s intention was clear. Her intent to create a joint tenancy is best seen in her repeated use of the words “joint tenant” or “joint tenancy.” She used these words five times in the habendum paragraph. As in Householter v. Householter, 160 Kan. 614, 617-19, 164 P.2d 101 (1945), we cannot indulge in the presumption that Ruth executed an instrument containing the repetition of a legal phrase five times without having had some explanation made to her of its significance. See 160 Kan. at 619. Certainly, use of the “magic” joint tenancy language “as joint tenants with the right of survivorship and not as tenants in common” would have been helpful and would probably have avoided this litigation.
SRS argues that Ruth and Bruce did not share a unity of interests. This is incorrect. The “unity of interests refers to the necessity that all tenants have interests of the same duration, and accordingly one cannot be a joint tenant for life and another joint tenant for years.” 2 Tiffany Real Prop. § 418 (3d ed. 2001). Ruth’s deed created life estates in both parties. They shared a unity of interests.
SRS’s attack on the nature of Ruth’s interest goes to the relative possessory interests of Ruth and Bruce. The interests of any group of cotenants are always undivided or they would not be cotenants. It is certainly more common to have cotenants with undivided 50% or 25% interests. There is no prohibition, however, against one cotenant having an undivided 99% interest and the other cotenant having an undivided 1% interest in the land.
The deed’s grant language is more consistent with a tenancy in common. Ruth failed to use the “magic words” for the usual creation of a joint tenancy. However, the habendum language of the deed is sufficiently clear to construe her intent to create a joint tenancy with the right of survivorship. Further, Ruth’s deed satisfied the “four unities” doctrine. Ruth created a joint tenancy with right of survivorship between herself and her son.
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Pierron, J:
Chris Darnell appeals the district court’s dismissal of his petition for writ of habeas corpus. Darnell contends he has received insufficient medical treatment in violation of his Eighth Amendment right to be free from cruel and unusual punishment. We affirm.
The facts in this case are for the most part undisputed. Darnell is an inmate at the Lansing Correctional Facility (Lansing). He complains that he suffers from three medical conditions: (1) a lump on the side of his abdomen, which causes great pain; (2) bleeding in his stool when he defecates; and (3) ongoing stomach pain and problems.
Darnell has received regular medical diagnosis and treatment for these aliments from the staff at Prison Health Services (PHS)— the contract medical provider for Lansing. He has filed multiple grievances against medical personnel beginning in 1998. In 2000, Darnell filed a petition for writ of habeas corpus pursuant to K.S.A. 60-1501, arguing the medical providers had failed to cure his affliction in violation of his Eighth Amendment right to be free from cruel and unusual punishment.
The district court appointed counsel for Darnell and held a full evidentiaiy hearing on the 60-1501 petition. Darnell testified extensively concerning his medical problems, the alleged failure of prescribed treatments to cure the problems, the alleged unprofessional conduct of medical personnel, and how his problems have allegedly worsened. The court took the matter under advisement and received proposed findings of facts and conclusions of law from both parties.
In denying the petition, the district court found Darnell’s medical need was sufficiently serious but that the conduct of medical personnel did not constitute a deliberate indifference to his medical needs as protected by the Eighth Amendment. The court found Darnell had received regular medical treatment from three doctors and two physician assistants. The court concluded Darnell’s allegations of delay or failure to provide treatment were nothing more than his general disagreement with the course of treatment.
Darnell argues the district court erred in dismissing his claim of cruel and unusual punishment for lack of medical treatment in violation of his rights under the Eighth Amendment. Darnell asserted his claims against the Secretary of Corrections (SOC), the warden at Lansing, and the individual physicians from PHS who provided care and treatment.
The standard of review for a K.S.A. 60-1507 appeal is whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992). This same standard of review applies to petitions filed pursuant to 60-1501. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Wonders, 263 Kan. 582, 589, 952 P.2d 1351 (1998). Our review of conclusions of law is unlimited. Rice v. State, 20 Kan. App. 2d 710, 711, 893 P.2d 252, rev. denied 257 Kan. 1093 (1995).
In Kansas, an incarcerated person retains rights to adequate medical care and treatment. Levier v. State, 209 Kan. 442, 448, 497 P.2d 265 (1972). These rights derive both from federal constitutional sources and Kansas constitutional and statutory mandates. 209 Kan. at 445-448. The Eighth Amendment to the United States Constitution forbids the infliction of cruel and unusual punishments. Similar prohibitions are found in Section 9 of the Kansas Constitution Bill of Rights. Habeas corpus is the appropriate remedy for a prisoner to allege being deprived of adequate medical care and treatment. 209 Kan. at 449.
Deliberate indifference to the serious medical needs of a prisoner is the measure by which violations of the Eighth Amendment are examined. Deliberate indifference to the serious medical needs of prisoners occurs by the unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). “Deliberate indifference to serious medical needs is shown when prison officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment. [Citations omitted.]” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied 450 U.S. 1041 (1981).
Deliberate indifference involves both an objective and a subjective component. The objective component is met if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 84, 114 S. Ct. 1970 (1994). A medical need is sufficiently serious “if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ [Citation omitted.]” Ramos, 639 F.2d at 575. The subjective component is met if a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
A Kansas federal district court used the phrases “callous inattention,” “reckless disregard,” and “gross negligence” to describe deliberate indifference. Medcalf v. State of Kan., 626 F. Supp. 1179, 1190 (D. Kan. 1986). The Kansas Court of Appeals discussed the meaning of deliberate indifference in Cupples v. State, 18 Kan. App. 2d 864, 861 P.2d 1360 (1993). The court defined deliberate indifference as more than ordinary negligence but less than express intent to harm or maliciousness. 18 Kan. App. 2d at 869 (quoting Berry v. City of Muskogee, 900 F.2d 1489, 1495 [10th Cir. 1990]).
In the present case, we find no error in the district court’s objective finding that the medical complaints expressed by Darnell presented a serious medical need. As for the subjective examination in the Estelle test, we also agree with the district court that there is no evidence to support a finding of any deliberate indifference in the treatment of Darnell’s medical conditions. The record is replete with evidence that Darnell received prompt and continuous medical attention and care for his lump, stomach pains, and bloody stool.
Darnell claims he has not received a diagnosis or any treatment for the lump on the right side of his abdomen. We disagree. The testimony indicates three different doctors examined the lump and each said it was nothing to worry about.
Darnell also complains about stomach pain. In his treatment, Darnell received an abdominal sonogram, and the radiologist said the results of the exam were normal. Darnell has been and continues to take his prescribed medication, Zantac, for his stomach conditions. He testified the Zantac helps his stomach condition.
It seems Darnell’s major complaint is that Dr. Houng of PHS had recommended on three or four occasions that Darnell be examined by an outside expert and that he be allowed a colonoscopy to diagnose and treat the problem concerning his bloody stools. A colonoscopy is not a procedure offered by PHS, and Darnell would need to be transported to an outside medical center for the procedure.
A difference of opinion between the prisoner and the medical staff of a prison regarding medical treatment that the prisoner receives does not support a claim of cruel and unusual punishment. Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (affirming dismissal of claim that leg stocking designed to improve circulation was improper treatment for leg cramps); Ramos, 639 F.2d at 575; Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). Similarly, the Estelle Court noted: “A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.” 429 U.S. at 107.
In Knight v. Davies, 804 F. Supp. 182 (D. Kan. 1992), the United States District Court for the District of Kansas addressed a claim of inadequate medical care brought against the Lansing Correctional Facility and its contracted health care provider. The inmate disagreed with the prison’s treatment of an eye ailment. The court stated the deliberate indifference standard does not encompass those cases where the medical opinion of prison officials differs from that of an inmate. 804 F. Supp. at 184. Medical evidence must support an inmate’s contrary, independent opinion. Medcalf v. State of Kan., 626 F. Supp. at 1190. Even when the conduct an inmate alleges may constitute civil medical malpractice, the standard of deliberate indifference may not be satisfied. 804 F. Supp. at 184.
In finding no constitutional violation in this case, we rely heavily on the fact that Darnell’s case was reviewed by a Kansas Department of Corrections Health Care Contract Consultant. The consultant found the care and treatment made available and afforded Darnell is consistent with prevailing community standards. Further, the Associate Ombudsman in the Office of the Ombudsman for Corrections, who reviewed the case, stated:
“I checked with the clinic regarding your on-going stomach problems and found that your case is being closely followed by clinical staff. There is no indication that your needs are being ignored or not taken seriously. Unfortunately, laboratory testing does not substantiate your physical complaints. Therefore, it is difficult to justify sending you to a specialist based on litde more than your verbal accounts and a negative testing. There is no indication that your life is in danger. Clinical staff have been professional in its dealings with your complaints. At this point, I can only recommend that you continue to access the clinic whenever the symptoms of your complaints begin to manifest themselves. Only then can you hope to establish appropriate documentation of the complaints through observation by clinic staff.”
The timeliness and adequacy of the medical care that was provided clearly did not satisfy Darnell, but that is not the measure to be applied in assessing whether an error of constitutional dimension has occurred. In June 2000, Darnell was examined by a board certified doctor of internal medicine who found that Darnell had no physical findings that would indicate the need for more testing. It is well recognized that a simple difference of opinion between an inmate and prison medical staff regarding treatment or diagnosis does not itself state a constitutional violation.
In order to state a cognizable claim, Darnell must allege acts or omissions sufficiently harmful to evidence deliberate indifference to his serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. See Estelle, 429 U.S. at 102, 106. We do not find Darnell has established such a claim. If the State furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety so as to avoid the imposition of cruel and unusual punishment, it generally meets its obligations under the Eighth Amendment.
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Rulon, C.J.:
Defendant Marshall E. Humphrey appeals his conviction for rape under K.S.A. 21-3502(a)(l)(A), claiming the trial court wrongfully denied his Batson challenge and committed various prejudicial evidentiaiy errors at trial. We affirm.
A detailed recitation of the underlying facts is not necessary to the resolution of the issues presented. As such, we need not revisit the facts except when necessary in our discussion of the issues.
The Batson Challenge
Defendant’s first argument is based on the trial court’s denial of his Batson challenge without first allowing defense counsel to argue its merits. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The State contends the court was simply refusing to hear a motion without merit, and if the trial court did err, the case should not be reversed, but instead remanded for a Batson hearing. “In reviewing a Batson violation concerning the State’s use of a peremptory challenge, the applicable appellate standard of review is whether tire trial court abused its discretion in determining if the challenged strikes were constitutionally permissible.” State v. Smallwood, 264 Kan. 69, 88, 955 P.2d 1209 (1998).
Batson, 476 U.S. at 89, held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution applies to the State’s privilege to strike jurors through peremptory challenges. Batson requires the trial court to follow a three-step test to determine whether the Equal Protection Clause has been violated. First, the defendant must make a prima facie showing that the State’s peremptory challenges were exercised on the basis of race. Second, once such a showing is made, the State has the burden to articulate a race-neutral reason for striking the juror. Third, the trial court must decide whether the defendant has met the burden of estabhshing purposeful discrimination. 476 U.S. at 96-98; State v. Edwards, 264 Kan. 177, 192, 955 P.2d 1276 (1998).
To make a prima facie showing required by the first step of the Batson test, the defendant must demonstrate the prosecution “has exercised peremptory challenges to remove from the venire members of a certain race or gender and that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the jurors from the jury on account of their race or gender. [Citation omitted.]” Edwards, 264 Kan. at 193-94. The defendant is also entitled to rely on the fact that peremptoiy challenges permit those who are of a mind to discriminate to do so. State v. Sledd, 250 Kan. 15, 19, 825 P.2d 114, cert. denied 506 U.S. 849 (1992) (quoting Batson, 476 U.S. at 96).
The defendant is African-American. After the parties exercised their peremptory strikes before trial, defense counsel said: “Your Honor, I’d like to make a Batson challenge.” The trial court responded: “You may like to, but we’ll do it after the jury’s been selected.” The jurors were sworn and dismissed from the courtroom. As soon as they were gone, the following exchange took place:
“THE COURT: Defendant’s Batson challenge is overruled. The defendant doesn’t meet the threshold test.
“Anything else we need to put on the record this afternoon?
“MS. DONNELLY-MILLS: Not for the State.
“MR. MAMALIS [for the defense]: Your Honor, I guess for the record I would simply like to say that Mr. Humphrey’s African-American. Mr. Evans [an African-American juror who was struck] was—
“THE COURT: I just ruled. I don’t listen to arguments on my rulings. If you wanna do something about that, you can save it for a motion for a new trial, you can file an affidavit, you can file a separate pleading. But I will not allow you to argue my rulings after I had made diem. Do you have any questions about that?
“MR. MAMALIS: Your Honor, no.”
After the trial had commenced, the trial court noted that one of the remaining jurors was African-American and another was Asian. Later, in his motion for a new trial, defendant argued the trial court erred in denying his Batson challenge regarding Mr. Evans, but defendant did not proffer evidence to make a prima facie case for a Batson violation.
The trial court clearly did not give the defense the opportunity to articulate how the facts and circumstances of the voir dire examination raised the inference that the State exercised peremptory challenges to remove members of a certain race from the jury on account of their race. Defendant’s Batson challenge is a question of legal sufficiency, and appellate courts have plenaiy review of the trial court’s determination of whether the defendant has made a prima facie showing. Sledd, 250 Kan. at 21. Because this court has complete review of this issue, we can review the facts and circumstances to determine whether it could be inferred from this record that the State removed Mr. Evans because of discriminatory intent.
In Sledd, the State had used 2 of its 12 peremptory challenges to exclude 2 out of 4 possible African-American jurors. Our Supreme Court concluded that the defendant had not made a prima facie showing of a Batson violation because there was no claim that the State’s action exhibited a pattern to exclude African-Americans. 250 Kan. at 22. Similarly, in this case the State used one of its peremptoiy challenges to strike one of the two possible African-American jurors. In Batson, Justice White commented in his concurrence: “The Court emphasizes that using peremptory challenges to strike blacks does not end the inquiry; it is not unconstitutional, without more, to strike one or more blacks from the jury. The judge may not require the prosecutor to respond at all.” 476 U.S. at 101; quoted in Sledd, 250 Kan. at 20.
Recently, in State v. Bolton, 271 Kan. 538, 544, 23 P.3d 824 (2001), our Supreme Court remanded a case to hold a proper Bat-son hearing when the trial court did not require the State to perform the second step and present a race-neutral reason for striking six African-American jurors for cause. After a review of federal and state cases from other jurisdictions, the Bolton court held:
“Because of the unique procedure used here by the trial judge to determine the propriety of the State’s removal of black panel members from the jury pool and because there is no record to be reviewed by an appellate court, we are therefore required to remand for a proper Batson hearing. The trial court hearing on remand does not involve the presentation of further evidence, but argument may be made before the trial court, based upon the trial record and counsel's recollection, as to the propriety of the peremptory challenges. If the trial court is unable to make a fair determination as required by Batson, it must grant the defendant a new trial.” (Emphasis added.) 271 Kan. at 544-45.
The factual circumstances in Bolton differ from the present case, however, because the Bolton court did not examine the record to determine whether the defendant made a prima facie showing. “When the trial court rules on the ultimate question of discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot. [Citations omitted.]” 271 Kan. at 540. In Bolton, there was no record regarding the State’s reasons for removing the six African-American jurors so the case had to be remanded for further proceedings.
Based upon our review of this record, we conclude it was impossible for the defendant to make a prima facie case of racial discrimination. Needless to say, however, the better practice is for the trial court to afford the defense an opportunity to articulate how the facts and circumstances of voir dire examination may raise the inference that the State has exercised peremptory challenges to remove members of a certain race from the jury simply based upon racial considerations.
Improper Direct Examination
Defendant next argues the trial court engaged in judicial misconduct by sua sponte authorizing the State to treat the victim, B.K., as a hostile witness on direct examination, thereby denying defendant a fair trial. The State contends the trial court exercised its sound discretion in allowing the State to ask leading questions in order to maintain a tolerable pace at trial.
The victim here suffers from certain mental deficiencies, including attention deficit disorder, a behavioral disorder, and various learning disabilities which are severe enough to prevent her from working outside the home. This record reflects that during the State’s direct examination, the victim paused before answering on numerous occasions. This hesitation increased when the State asked the victim about the details of the incident. Over defendant’s objection, and without an explanation of its reason, the trial court authorized the State to ask the victim leading questions. A later comment suggests the trial court was frustrated with the sluggishness of the proceedings: “We’ve spent half an hour doing five minutes worth of questioning. Let’s get on with it.”
Contraiy to defendant’s assertion, the trial court never declared the victim to be a hostile witness. Although hostility of the witness is a common basis for allowing leading questions on direct examination, Kansas courts have also permitted leading questions when the witness is unable to easily answer the question posed. “Whether leading questions should be permitted in a particular case rests with the sound discretion of the trial court.” State v. Cook, 224 Kan. 132, Syl. ¶ 1, 578 P.2d 257 (1978). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
In State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970), the State’s use of leading questions with an 8-year-old rape victim was found to be permissible despite the defendant’s assignment of error. The Jones court noted the defendant was able to cross-examine the victim in the same manner as the State, and the credibility and weight to be afforded to her testimony were to be determined by the jury. 204 Kan. at 728. Here, as in Jones, defendant’s counsel was given the opportunity to fully cross-examine the victim. We conclude the trial court’s action was not an abuse of discretion.
State’s Expert Witness
During its examination of Nurse Harrell, the State asked: “[D]o you have an opinion to a reasonable degree of medical certainty as to whether or not the injuries documented [during your examination of the victim] are consistent with the history given?” The defense objected, claiming Nurse Harrell was not competent to make such a diagnosis. The trial court overruled this objection, and Nurse Harrell answered: “The injuries are consistent with blunt force penetrating trauma.” Nurse Harrell further discussed why such injuries are indicative of nonconsensual sex.
The defense argues the trial court erred in permitting Nurse Harrell to testify regarding the cause of the victim’s injuries because she was not qualified to render a diagnosis on such matters. The State asserts Nurse Harrell possessed the special knowledge required to permit her to characterize the nature of the victim’s injuries.
K.S.A. 60-456(b) requires expert witness testimony in the form of inferences or opinions to be “within the scope of the special knowledge, skill, experience or training possessed by the witness.” The trial court has broad discretion regarding the qualifications of an expert witness and the admissibility of expert testimony. Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or interpreting technical facts or if it assists the jury in arriving at a reasonable factual conclusion from the evidence. Necessity is the basis for the admission of expert testimony, arising out of the particular circumstances of the case. Expert conclusions or opinions are not necessary if the normal experience and qualifications of jurors permit them to draw proper conclusions from the given facts and circumstances. Smallwood, 264 Kan. at 80.
The defense claims that State v. Willis, 256 Kan. 837, 888 P.2d 839 (1995), held “that non doctors may not give medical diagnosis,” which is dispositive of this issue. The holding in Willis may not be so broad, however. The Willis court held that a licensed social worker was not qualified to diagnose medical and psychiatric conditions, namely post-fraumatic stress disorder. 256 Kan. at 846. To do so, the expert must have special training in that field of psychology. 256 Kan. at 847. Here, Nurse Harrell never attempted to diagnose the victim’s mental state, which she clearly would not have been qualified to do. Instead, she gave her opinion regarding the cause of the victim’s injuries.
The record shows Nurse Harrell received her nursing degree from Wichita State University in 1976 and worked in the sexual assault office at Via Christi-St. Joseph Medical Center. She had been an emergency room nurse for 18 years. To join the hospital’s Sexual Assault Response Team, Nurse Harrell attended a 40-hour class and a 40-hour preceptorship involving hands-on experience dealing with rape victims. She had 7 years’ Experience working in the area and had attended numerous conferences on the subject. Nurse Harrell testified she had performed over 500 sexual assault examinations. Unfortunately, this testimony did not directly discuss the skills she learned in her classes, in particular whether Harrell learned to distinguish consensual sex injuries from nonconsensual sex injuries.
In State v. Mullins, 267 Kan. 84, 977 P.2d 931 (1999), a registered nurse had examined the victim and testified that the victim’s physical exam was normal and that the victim showed no signs of physical abuse. The Mullins court held that the nurse’s “qualifications and experiences clearly show she possessed the education and background necessary to testify as an expert on the subject of child sexual abuse.” 267 Kan. at 94.
A similar issue has been addressed by the Virginia Court of Appeals in Velazquez v. Com., 543 S.E.2d 631 (Va. App. 2001). There, the defendant was accused and convicted of raping a 15-year-old girl. On appeal, the defendant claimed the trial court erred in allowing a sexual assault nurse examiner to testify regarding the cause of the victim’s injury. The Velazquez court identified die nurse’s qualifications, which were quite similar to those of Nurse Harrell’s, and specifically mentioned, “additional training in crisis intervention, physical assessment, injury recognition, documentation, evidence collection, photography and injury assessment.” 543 S.E.2d at 634-35. The Velazquez court held that based on the nurse’s training and experience, the nurse had knowledge concerning matters beyond a lay person’s common knowledge which would assist the jury in understanding the evidence. 543 S.E.2d at 635.
Nurse Harrell’s testimony that she would characterize the victim’s injuries as resulting from blunt force penetrating trauma was within her realm of expertise. Nurse Harrell had experience examining alleged rape victims and certainly possessed enough knowledge to testify as to the general cause of the physical injuries she observed. Based on her training and experience, Nurse Harrell was also able to inform the juiy of this fact as well. The trial court did not abuse its discretion in allowing Nurse Harrell to testify regarding the victim’s injuries.
The Ultimate Issue
Next, defendant claims Nurse Harrell invaded the province of the jury by testifying that the blunt force penetrating trauma injuries found on the victim were characteristic of nonconsensual sex.
When asked whether the victim’s injuries were consistent with the history the victim gave, Nurse Harrell answered they were consistent with “blunt force penetrating trauma.” The State further inquired how the victim’s injuries were different from injuries usually associated with consensual sex, to which Nurse Harrell answered that generally the injuries were different because of the amount of lubrication present, the resistance involved, and the position of the person. According to Nurse Harrell, generally, a person does not suffer injury during consensual sex. Nurse Harrell agreed that the victim’s injuries could be characterized as a mounting injury and further confirmed the victim’s injuries were consistent with the history given by the victim. On cross-examination, however, Nurse Harrell agreed that she could not say exactly how the victim’s injuries were caused.
While an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), he or she may only do so insofar as it aids the jury in interpreting technical facts or understanding the evidence. An expert witness may not evaluate the weight or credibility of the evidence because those matters are strictly within the province of the jury. Mullins, 267 Kan. at 94.
In State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), the defendant was accused of rape. The defense denied having any physical contact with the victim. The victim was examined at the hospital shortly after the alleged incident by a physician, who found no physical evidence that a rape had occurred. At trial, the physician testified that based on her experience receiving possible rape patients at the emergency room, the victim’s emotional state was consistent with the behavior of a person who had been raped. Furthermore, the physician expressed the opinion that the victim was raped. Concluding prejudicial error, our Supreme Court reversed. 236 Kan. at 303. The physician was not an expert in psychiatry, she did not examine the victim to make a psychiatric diagnosis, and there was no evidence that her conclusions were generally accepted in the field of psychiatry. The court further concluded such testimony invaded the province of the juiy because the jury could just as easily have evaluated the implications of the victim’s demeanor when she was admitted to the hospital. 236 Kan. at 304. The present case can be differentiated from Bressman.
The challenged testimony here is similar in nature to the expert testimony complained of in State v. Struzik, 269 Kan. 95, 5 P.3d 502 (2000). There, the defendant was accused of first-degree felony murder based on the death of a child from abuse. The defendant claimed that the child’s injuries were a result of an accidental fall down the stairs. At trial, the first physician testified that the victim’s fatal brain trauma was not consistent with a fall down the stairs. Similarly, the second physician testified: “I don’t know exactly what happened and who did it, but there is no other explanation [besides abuse] for this child’s injuries.” 269 Kan. at 103. The Struzik court held that the physicians’ testimony, while addressing the ultimate issue of the defendant’s guilt, was based on medical evidence involving the character and severity of the child’s injuries and not an assessment of the defendant’s veracity. 269 Kan. at 101. Thus, their testimony was admissible.
Similarly, in State v. Clements, 241 Kan. 77, 80, 734 P.2d 1096 (1987), our Supreme Court concluded it was permissible for a mental health therapist with expertise in sexually abused victims to testify that the victim’s progress in therapy was consistent with what he would expect from a young boy who had been sodomized because the witness did not directly testify regarding the veracity of the victim’s story.
In the Virginia case of Velazquez, the court concluded that a registered nurse was qualified as an expert in the diagnosis of sexual assault because of her specialized training. 543 S.E.2d at 636. The court held the trial court did not err in allowing her to testify regarding her observations and conclusions based on the following testimony:
“[The nurse] personally observed the victim and the tests she administered showed [the victim’s] injuries to be a ‘recent injury’ with ‘no lubrication,’ indicating an absence of the human sexual response. She concluded her descriptive testimony by stating that in her opinion her findings were ‘inconsistent with consensual intercourse’ because the injuries [the victim] had are ‘consistent with nonconsensual intercourse.’ ” 543 S.E.2d at 636.
Importantly, the nurse did not testify that the defendant engaged in sexual intercourse with the victim against her will, which was the ultimate issue in the case. Thus, the challenged testimony was admissible. 543 S.E.2d at 637.
Here, Nurse Harrell did not testify that defendant’s stoiy was not credible, but rather testified that tire victim’s injuries were consistent with injuries caused by blunt force penetrating trauma. Nurse Harrell agreed that blunt force penetrating trauma does not have to be caused by a penis. Furthermore, Nurse Harrell testified she could not say with 100% accuracy what caused the victim’s injuries. We are satisfied that under the facts presented Nurse Harrell was qualified to render an opinion regarding the causation of the victim’s injuries. Such testimony was admissible as it did not invade the province of the jury.
Limitation of Defense Cross-Examination
Finally, defendant asserts the trial court impermissibly limited his defense in violation of his right to due process by preventing his counsel from asking Nurse Harrell about the condition of the victim’s clothes when the victim was admitted to the hospital. The State argues the defense was trying to authenticate a business record through a witness who did not work for that business, and the trial court did not err in limiting the defense’s questioning.
When reviewing a constitutional challenge to the admission or exclusion of evidence, the appellate court applies the federal constitutional rule. Under that rule, an error may not be held harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999). Furthermore, “the right to cross-examine witnesses is subject to evidentiary rules, and the trial court has broad discretion in controlling the examination. [Citations omitted.]” State v. Harmon, 254 Kan. 87, 95, 865 P.2d 1011 (1993).
Simply said, we have carefully reviewed this record and firmly conclude that even if the trial court erred in limiting the defense’s cross-examination of Nurse Harrell, such error, if any, at best was harmless error.
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Beier, J.:
Patricia Lynn Wig appeals her jury trial convictions of one count of attempted manufacture of methamphetamine and one count of felony possession of drug paraphernalia. She contends that evidence found in a search of her van and her subsequent statements should have been suppressed because her consent to the search was involuntary, and that insufficient evidence supported her convictions. We affirm.
This case began when police received a report that a man leaving Wal-Mart in Wig’s van had made a suspicious purchase of cold medicine and possibly had stolen some batteries. An officer followed the van until it parked in another store’s parking lot, and a detective went into the store to speak with the van’s three occupants, including Wig.
After a man with Wig denied buying any batteries at Wal-Mart, the detective asked Wig for permission to search her van. Wig consented. The detective found 13 boxes of cold medicine containing pseudoephedrine. He also found a “salad shooter” that had white powder caked around the cutting portion of the machine. Later tests confirmed ephedrine or pseudoephedrine in the powder on the salad shooter; ephedrine or pseudoephedrine is used to manufacture methamphetamine. Wig said the salad shooter belonged to her, but she had loaned it to her daughter and did not know if it was ever used to grind cold tablets.
The detective then asked Wig and the two other occupants of the van to come to the sheriff s office to give a statement. In her statement, Wig said she had been given $100 to purchase Sudafed for others to manufacture methamphetamine. She had been instructed to take several people to purchase the cold medicine. In return, she would receive $300 and methamphetamine to give to her son-in-law, one of the other occupants of the van. Wig’s son-in-law gave a similar statement.
Wig filed a motion to suppress, arguing her consent to the search was involuntary and her statement was made in a custodial interrogation in which she did not receive Miranda warnings. The district court denied the motion after a hearing. Wig failed to object at trial to fhe introduction of the evidence obtained in the search, or her subsequent incriminating statement.
Voluntariness of Consent
“ When a pretrial motion to suppress has been denied, the moving party must object to introduction of the evidence at trial in order to preserve fhe issue for appeal.’ ” State v. Gilbert, 272 Kan. 209, 212, 32 P.3d 713 (2001) (quoting State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 [1999]). Because Wig failed to object to admission of the evidence found in her van and her statement at trial, we need not address the merits of this claim.
If we were to address the merits, we would affirm the district court.
“ When analyzing a district court’s suppression of evidence, an appellate court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.’ ” State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 (2000) (quoting State v. Toothman, 267 Kan. 412, Syl. ¶ 1, 985 P.2d 701 [1999]).
We have carefully reviewed fhe record of the suppression hearing and see ample evidence to support the district court’s finding that Wig’s consent to search her van was voluntary. We also see ample evidence to support the district court’s finding that she was not subject to a custodial interrogation when she gave her incriminating statement. We would agree with the district court’s refusal to suppress.
Sufficiency of Evidence on Attempt to Manufacture Methamphetamine
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Doyle, 272 Kan. 1157,1161, 38 P.3d 650 (2002).
Wig was convicted of attempted manufacture of methamphetamine under K.S.A. 1998 Supp. 65-4159, which provides in relevant part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.
“(b) Any person violating the provisions of this section with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance or controlled substance analog, upon conviction, is guilty of:
(1) A drug severity level 2 felony upon conviction for a first offense.”
Wig argues insufficient evidence was presented to convict her of attempted manufacture of methamphetamine because she possessed only one of the necessary ingredients. She fails to acknowledge that she and her son-in-law told law enforcement that she agreed to purchase the cold medicine for third parties to manufacture methamphetamine, in return for cash and product. These statements, in addition to her possession of multiple boxes of cold medication and the salad shooter coated with ground pseudoephedrine, constituted sufficient evidence for conviction.
Sufficiency of the Evidence of Felony Possession of Paraphernalia
Wig’s last argument on appeal is that the evidence was insufficient to support her conviction for felony possession of drug paraphernalia. Such possession is defined as using or possessing with intent to use “any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.” K.S.A. 2001 Supp. 65-4152(a)(3).
The State presented evidence regarding the role of cold tablets containing ephedrine or pseudoephedrine in the manufacture of methamphetamine. Wig admitted to owning the salad shooter found in her van, which contained the residue of ground pseudoephedrine. Although she did not admit to grinding the tablets herself, she did admit to purchasing the cold tablets for the express purpose of enabling others to manufacture methamphetamine. This combination of evidence was sufficient to support her conviction of felony possession of paraphernalia.
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Lewis, J.:
Anthony Edward Molina sued Benjamin Christensen and Wichita State University (WSU) for injuries sustained prior to a regularly scheduled intercollegiate baseball game between WSU and the University of Evansville, Indiana (Evansville). Summary judgment was rendered on behalf of the defendants, who were held to be immune from liability under the recreational use exception to the Kansas Tort Claims Act (KTCA), K.S.A. 1999 Supp. 75-6104(o). The plaintiff appeals the decision of the trial court. We affirm.
The Evansville team had traveled to Wichita to play in a regularly scheduled baseball game against WSU. All matters relevant to this appeal took place at Rusty Eck Stadium in Wichita.
The injury to the plaintiff took place as he was standing either in or near the on-deck circle prior to the beginning of the baseball game. Defendant Christensen was pitching for WSU and was on the pitcher’s mound warming up. At one point and for reasons not totally clear, Christensen threw a baseball at the head of the plaintiff and struck him on his head, causing serious injuries. The plaintiff then filed suit against WSU, alleging simple negligence on the part not only of Christensen but also on the parts of the manager of the WSU team and one of its coaches. There is no doubt that the injury to the plaintiff was deliberate and unjustifiable.
Christensen maintained that his actions were motivated by instructions given to him by one of the WSU coaches. According to Christensen, his actions had something to do with keeping the batter from getting too close to home plate. The problem with that rationale is that under the facts shown, the game had not started, the plaintiff had every right to be where he was, and Christensen had no right whatsoever to be throwing a baseball anywhere near him.
Despite the defendants’ unconscionable tactics, the plaintiff s petition alleged only simple negligence on the part of Gene Stephenson and Brent Kemnitz. Stephenson, as the manager, and Kemnitz, as one of the coaches, were both employees of WSU. WSU filed an answer to this petition and reserved the defense of immunity under the recreational use exception to the KTCA.
Things did not go smoothly procedurally. The plaintiff moved for partial summary judgment against WSU. WSU opposed that motion and argued that the plaintiff had failed to comply with Supreme Court Rule 141 (2000 Kan. Ct. R. Annot. 189) and sought sanctions against the plaintiff for failure to serve it with a copy of the resistance and memorandum in opposition filed by the plaintiff. After having set up this offensive strategy, WSU then moved for summary judgment based on immunity under the recreational use exception of K.S.A. 1999 Supp. 75-6104(o).
The trial court denied the plaintiff s motion for partial summary judgment. Although hotly contested, the trial court found that the plaintiff had not served copies of the resistence and memorandum in opposition upon defense counsel as required by Supreme Court Rule 141(b) and granted WSU’s motions for sanctions. As a sanction, the trial court adopted WSU’s statement of uncontroverted facts and granted immunity under K.S.A. 1999 Supp. 75-6104(o).
The plaintiff argues strongly that the trial court erred in holding that he failed to comply with Supreme Court Rule 141 and in adopting WSU’s statement of uncontroverted facts. We disagree.
A trial court’s ruling that a party opposing summary judgment is deemed to have admitted the movant’s uncontroverted facts be cause of failure to follow Supreme Court Rule 141 rests within the sound discretion of the trial court. Ruebke v. Globe Communications Corp., 241 Kan. 595, 604, 738 P.2d 1246 (1987).
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which.is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion. [Citation omitted.]” 241 Kan. at 604.
Supreme Court Rule 141 requires timely filing and service on opposing counsel and governs summary judgment. It also provides a trial court with ample grounds for exercising its discretion in imposing sanctions to punish a party for failing to comply with the rule.
The plaintiff apparently mistakenly believes that the trial court was unaware that he filed his responsive memorandum within 21 days as required by Supreme Court Rule 141.
We disagree. It is evident from the record that the trial court was aware that the plaintiff did not serve a copy of his response on opposing counsel within the 21-day time period. At the hearing on the motion, the attorney general’s office made it clear that its office did not receive a copy until 2 weeks after the deadline and only days before the hearing on the motion. Additionally, the trial court noted in ruling on the motion that the plaintiff had not filed a timely response. The trial court was well aware that the document may have been timely filed; the plaintiff s problem was with his failure to timely serve counsel.
The plaintiff s counsel argues with enthusiasm that the trial court should have believed his affidavit and that of his secretary in which it was asserted that the response was timely served. We note, however, that at the hearing on the motion, the plaintiff s attorney was at a loss to explain why none of the three attorneys representing the different defendants had received a copy of the responsive memorandum. The plaintiff s counsel told the court, “We did comply with the rule. I’m sorry they didn’t get it. I have no explanation for why, but we did comply with the rule.”
The record indicates otherwise; the record, along with the testimony of the attorneys for WSU, indicates that no service was made. Under these circumstances, the question at hand was which version of the facts the trial court was going to believe. It is obvious that the trial court decided to believe the version offered by WSU and rejected the insistence by the plaintiff s attorney that service had been made. We agree with that decision. While it is possible that one or even two of the memoranda may have been lost in the mail, it is hard for us to imagine how all three of them could have been lost. In addition to failing to comply with the rule regarding service, the court noted that the plaintiff s response did not properly controvert facts under Rule 141 where it stated that he did not have the information by which to affirm or deny those facts.
We conclude the trial court's discretion was not abused; the trial court did not err in determining that the plaintiff failed to comply with the rule for serving opposing counsel with a copy of the responsive memorandum, and its decision to impose sanctions was neither arbitrary, fanciful, nor unreasonable. We affirm the trail court’s decision in this regard.
One of the issues involved was whether the recreational use exception was unconstitutional because it violated the Equal Protection Clause of the Constitution of the United States. At the time this matter was argued, there was a case pending in the Kansas Supreme Court in which the trial court had held that the Equal Protection Clause was violated by the recreational use exception and that such exception was unconstitutional. One of the reasons the decision in this case has been delayed is that we have been waiting on the Supreme Court to resolve the issues raised in that case.
The Supreme Court did resolve those issues in Barrett v. U.S.D. 259, 272 Kan. 250, 32 P.3d 1156 (2001). This opinion thoroughly reviewed an equal protection challenge to the recreational use exception as set forth in K.S.A. 75-6104(o). The Supreme Court used a rational basis review to hold the recreational use exception did not violate equal protection. We agree with the Supreme Court’s decision in Barrett-, it is controlling on this issue, and we hold that the plaintiff s argument to the contrary is without merit.
The plaintiff finally argues that there is a genuine issue of material fact as to whether Rusty Eck Stadium is used for recreational purposes because it is mainly used for NCAA Division I baseball games.
While we believe there is a point at which it is no longer feasible to consider a college stadium a recreational facility, that point has not been reached in this case, and we affirm the trial court’s decision that Rusty Eck Stadium was, indeed, a recreational use facility.
The stadium is, indeed, used mainly for NCAA Division I baseball games. We note:
“The NCAA is a voluntary, unincorporated association of some 800 colleges and universities as well as some 175 other sports-related organizations. The voting membership is wholly composed of four-year colleges and universities and athletic conferences comprised of NCAA member institutions. The NCAA promotes, develops, and regulates twelve intercollegiate sports.” NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 554, 781 P.2d 726 (1989).
WSU and Evansville are both members of the Missouri Valley Conference, playing as Division I NCAA baseball programs. The constitution of that conference provides that the conference operations are bound by the rules and regulations of the NCAA unless conference rules are more restrictive.
We have examined the constitution of the NCAA, and it makes it clear that the use of Rusty Eck Stadium is recreational rather than professional in nature. That document provides in part:
“The competitive athletics programs of member institutions are designed to be a vital part of the educational system. A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.” 1997-98 NCAA Division I Manual, p. 1 (1997).
The NCAA operating bylaws, especially article 12 which is devoted to “Amateurism,” demonstrates that it is not a professional organization for purposes of the KTCA.
“12.01.2 Clear Line of Demarcation. Member institutions’ athletics programs are designed to be an integral part of the educational program and the student-athlete is considered an integral part of the student body, thus maintaining a clear line of demarcation between college athletics and professional sports.
“12.02.2 Pay. Pay is the receipt of funds, awards or benefits not permitted by the governing legislation of the Association for participation in athletics.
“12.02.3 Professional Athlete. A professional athlete is one who receives any kind of payment, directly or indirectly, for athletics participation except as permitted by the governing legislation of the Association.
“12.1.1 Amateur Status. An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual:
(a) Uses his or her athletics skill (directly or indirectly) for pay in any form in that sport;
(b) Accepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation;
(c) Signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received;
(d) Receives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organizationbased upon athletics skill or participation, except as permitted by NCAA rules and regulations;
(e) Competes on any professional athletics team and knows (or had reason to know) that the team is a professional athletics team (per [Bylaw] 12.02.4), even if no pay or remuneration for expenses was received; or
(f) Enters into a professional draft or an agreement with an agent (see also [Bylaw] 12.2.4.2.1).
“12.1.2.1 Professional at Later Date. If the individual later becomes involved in professional athletics while still a student-athlete with remaining eligibility, the individual would be considered to have violated the principles of ethical conduct per Bylaw 10, thus rendering the individual ineligible for intercollegiate competition.
“12.2.3.2.3 Amateur/Professional Leagues. An individual may participate as a member of an amateur team in a league in which one or more teams are professional, provided the league is not a member of a recognized professional sports organization or is not directly supported or sponsored by a professional sports team or organization.” 1997-98 NCAA Division I Manual, pp. 69-74 (1997).
Aside from the NCAA rules and not wishing to put too much reliance on that organization’s definitions of amateur, we also conclude that Rusty Eck Stadium qualifies for immuniiy as “public property intended or permitted to be used as a park, playground or open area for recreational purposes” under K.S.A. 1999 Supp. 75-6104(o). WSU is a state educational institution and a separate agency of the State of Kansas. See K.S.A. 76-711 and K.S.A. 76-712. As a result, the KTCA is applicable to WSU and its employees as a governmental entity. K.S.A. 1999 Supp. 75-6102(a), (c), and (d).
K.S.A. 1999 Supp. 75-6104(o) provides a governmental entity with immunity for
“any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” (Emphasis added.)
As it develops in this case, the recreational use exception will apply unless the WSU employees were guilty of gross and wanton negligence.
The plaintiff argues there are genuine issues of material fact as to whether WSU’s alleged coaching negligence was willful or wanton.
Unfortunately for the plaintiff, this issue is raised for the first time on appeal. A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).
The fact of the matter is that despite how fervently the plaintiff may wish it were not so, his petition alleged simple negligence on the parts of Stephenson and Kemnitz, who are WSU employees.
As we have demonstrated, absent gross and wanton negligence, WSU is immune from liability under the recreational use exception of the KTCA for events that took place at Rusty Eck Stadium. Tullis v. Pittsburg State Univ., 28 Kan. App. 2d 347, 16 P.3d 971 (2000).
This case was framed and tried on the plaintiffs allegations; those allegations were allegations of simple negligence only, and that is not sufficient to overcome the recreational use exception of the KTCA. We hold that WSU is immune from liability in this case for that reason.
We affirm the trial court. We realize that this means no recovery for the plaintiff under facts which would indicate litde, if any, justification for defendant3s conduct. However, WSU is the sovereign, and the sovereign may only be subjected to a money judgment in a civil action under circumstances which the sovereign itself has laid down. Under these facts, the sovereign is immune from any liability no matter how unfortunate the event by reason of the recreational use exception of the KTCA. That immunity requires that we affirm the decision of the trial court.
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Beier, J.:
Franklin Myers appeals the district court’s denial of his motion to set aside a default judgment that modified his child support. He argues that the court lacked subject matter and personal jurisdiction.
Franklin and his former wife, Trina, were divorced in Bourbon County in Kansas. They were awarded joint custody of their minor daughter, with Trina as the primary custodial parent. Franklin was ordered to pay child support.
Trina later filed a motion in Bourbon County for modification of the child support. At the time the motion was filed, she and the daughter resided in Arkansas, and Franklin resided in Texas. The motion and notice of hearing were sent to Franklin at 2240 Morris Road, Ste. 110-171, Flower Mound, Texas.
A later summons indicates the Morris Road address was incorrect. A Texas constable then made five unsuccessful attempts to serve Franldin at two other addresses. Finally, the constable mailed copies of the motion and hearing notice to these two addresses and tacked them to their front doors. The district court in Bourbon County also mailed hearing notices to these two addresses.
Franldin did not appear at the hearing, but the parties’ daughter told the district judge that she was with her father when he received notice of the hearing. The district court found Franklin was served through the efforts in Texas and entered a default judgment increasing his child support obligation.
Franldin later filed a motion to set aside the order modifying child support, contending he did not reside at the addresses listed in the return of service and never received service of the motion or notice of the hearing. The district court, relying on the daughter’s statement, found Franklin received actual notice of the time and place of the hearing.
The court further stated:
“Since it appears that neither party has filed any motions requesting that jurisdiction over the issues of child support be moved or transferred to another state pursuant to K.S.A. 23-9,205(a)(1) and (2), this court continues to have jurisdiction over the issue of child support obligations.”
Franklin sought reconsideration, arguing his daughter could not have been present when he was served a copy of the motion to increase child support at the time alleged because her flight schedule proved she was visiting him at another time. He also continued to argue the district court lacked subject matter jurisdiction because none of the parties still resided in Kansas.
The district court refused to reverse itself on its finding of service. On the subject matter jurisdiction question, it elaborated:
“Respondent also insists that Abplanalp decision stands for the absolute proposition that this court is without jurisdiction to modify respondent’s child support obligation because neither of the parties nor the child resided in Kansas at the time the motion to modify was made. The Court is aware that various writers have taken the same position. However, in Abplanalp there had been a request filed by the child’s mother to transfer the support matter to a court in Nebraska where she lived. So, consequently, in that case the trial court was found to have erred in not making the requested transfer. In this case, no one has requested a transfer to the court of an appropriate state. The Abplanalp court states as follows:
‘Once Kansas has lost continuing, exclusive jurisdiction and a motion to modify child support is filed, upon proper motion, the order for child support should be forwarded to an appropriate tribunal . . . .’
“Is it up to this court to decide what the appropriate tribunal is? Should this court just dismiss the support motion out of hand, which appears to be the respondent’s position herein, and leave the parties and the child in limbo with no court then having the child support matter before it? Neither of these options seems particularly appropriate. Therefore, until such time as an appropriate motion to transfer is filed, the Court will retain jurisdiction and respondent’s motion in this regard is denied.”
On this appeal, Franklin continues to challenge the district court’s conclusion that it retained subject matter jurisdiction over the child support issue.
The existence of subject matter jurisdiction raises a question of law; thus our review is unlimited. In re Marriage of Abplanalp, 27 Kan. App. 2d 833, 7 P.3d 1269 (2000). Further, although a motion for relief from a final judgment pursuant to K.S.A. 60-260(b) ordinarily is entrusted to the sound discretion of the district court, when a default judgment is attacked as void, there is no question of discretion. The judgment either is valid or void as a matter of law. A void judgment is one rendered by a court lacking personal or subject matter jurisdiction or acting in a manner inconsistent with due process. In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997).
Franklin argues that the Abplanalp decision interpreted the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq., to mean Kansas no longer had subject matter jurisdiction to modify a support order when all of the parties have moved from the state. Trina argues Abplanalp stands for the proposition that “Kansas does not lose jurisdiction until such time as one of the parties has moved to transfer the case to a state in which said party believes jurisdiction will he.” Because neither of the parties petitioned to transfer this action, she contends, the Kansas district court retained jurisdiction.
In Abplanalp, the parties were divorced in Kansas, and the father was ordered to pay child support. Later, the mother and children moved to Nebraska, and the father moved to Oklahoma. The father filed a motion in Kansas to modify his child support obligation, and the mother filed a motion for the Kansas court to register the child support order in Nebraska pursuant to UIFSA. The Kansas district court denied the mother s motion and granted the father s motion to decrease the amount of child support. 27 Kan. App. 2d at 834.
On appeal, a panel of this court framed the issue and reasoned as follows:
“This case calls for an interpretation of certain provisions of UIFSA. Specifically, does Kansas as the issuing state have continuing exclusive jurisdiction to modify the child support provision of its divorce decree once both parents and all their minor children have left the state? We conclude it does not, without written consent of all parties.
“K.S.A. 1999 Supp. 23-9,205(a)(1) and (2) provide:
‘A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:
(1) As long as this state remains the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued-, or
(2) until all of the parties who are individuals have filed written consents with die tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
“Since written consents have not been filed by all parties to hear the motion for modification in Kansas, the Kansas court no longer maintains continuing, exclusive juzisdiction. ‘The term “continuing, exclusive jurisdiction” is used in [UIFSA] to indicate tiiat only one tribunal has jurisdiction to modify a child support order at a time.’ Linn v. Child Support Enforcement, 736 A.2d 954, 959 (Del. Super. 1999) (citing Gentzel v. Williams, 25 Kan. App. 2d 552, 965 P.2d 855 [1998]).
“In Gentzel, this court held that once die issuing state has lost continuing, exclusive jurisdiction, the obligee may seek modification of the child support order in the obligor’s state of residence or the obligor may seek a modification in the obligee’s state of residence. 25 Kan. App. 2d at 558; K.S.A. 1999 Supp. 23-9,611(a)(1).
“The purpose of UIFSA is to prevent a party from obtaining a local advantage by requiring that the moving party must be a nonresident of the state where the motion is filed. Also, the state where the action is brought must have personal jurisdiction over the nonmoving party. Once Kansas has lost continuing, exclusive jurisdiction and a motion to modify child support is filed, upon proper motion, the order for child support should be forwarded to an appropriate tribunal, e.g., to a state: (1) where the movant is a nonresident and (2) that has jurisdiction over the nonmoving party. K.S.A. 1999 Supp. 23-9,301(c). If the parties and child no longer reside in Kansas, except for modification by agreement, the party petitioning to modify an existing child support order must submit himself or herself to the jurisdiction of the state where the nonmoving party resides.” (Emphasis added.) 27 Kan. App. 2d at 834-35.
The panel concluded that the Kansas district court erred by denying the mothers petition to register the support order in Nebraska pursuant to K.S.A. 1999 Supp. 23-9,301(c) and by finding it had jurisdiction to modify the child support order. Judge Knudson filed a concurrence, stating in part:
“I agree with the decision authored by Judge Buchele but do not agree K.S.A. 1999 Supp. 23-9,205(a)(2) applies. The district court did not have continuing, exclusive jurisdiction under K.S.A. 1999 Supp. 23-9,205(a)(1) — Kansas was no longer the residence of the parties and their children.” 27 Kan. App. 2d at 836.
This case moves us to resolve two issues: The first is whether Kansas lost continuing, exclusive jurisdiction under K.S.A. 2001 Supp. 23-9,205(a)(1) when all of the parties moved out of state and whether the use of the term “or” between subsections (a)(1) and (a)(2) requires a Kansas court to go on to consider (a)(2) after it determines that (a)(1) precludes jurisdiction. The second issue is whether the Kansas district court is free to exercise jurisdiction in the absence of a petition to transfer the case under K.S.A. 2001 Supp. 23-9,301(c), even though it lacks continuing, exclusive jurisdiction under K.S.A. 2001 Supp. 23-9,205(a)(1).
Regarding the first issue, subsection (a) of the statute states clearly that Kansas lost continuing and exclusive jurisdiction when the parties and their child established homes elsewhere. Having gotten to that point, two members of the Abplanalp panel felt compelled to engage in further analysis under (a)(2). This was the source of Judge Knudson’s criticism, and we agree with it.
The majority of the Abplanalp panel appears to have misapplied subsection (a)(2), which provides that Kansas has continuing, exclusive jurisdiction “until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.” (Emphasis added.) K.S.A. 2001 Supp. 23- 9,205(a)(2). The majority evidently interpreted this passage to mean that parties who had moved from the state could file written consents with the Kansas district court for a modification motion to be heard in Kansas. But this procedure would contravene the specific language of the statute, which allows the parties to file written consents for consideration only by a tribunal of another state. Subsection (a)(2) does not give the parties the authority to re-bestow subject matter jurisdiction on the Kansas court by agreement, once it has lost continuing and exclusive jurisdiction under subsection (a)(1).
Gentzel v. Williams, 25 Kan. App. 2d 552, 965 P.2d 855 (1998), reinforces our view. In that case, the parties were divorced and a child support order was entered in Arizona. The mother and children later moved to Texas, and the father moved to Kansas. The Kansas Department of Social and Rehabilitation Services (SRS) sought an income withholding order against the father in Kansas district court, and the father moved to modify his obligation to comport with Kansas child support guidelines. The district court found that it had continuing, exclusive jurisdiction under UIFSA and entered an order modifying the support order originally issued in Arizona.
On appeal, the panel concluded the Kansas court lacked jurisdiction to modify the child support order. Although the case was controlled by K.S.A. 2001 Supp. 23-9,611, which deals with foreign orders, it noted K.S.A. 23-9,205, and agreed Arizona had lost continuing, exclusive jurisdiction when both adult parties and the children left the state. In order for another state such as Kansas to exercise jurisdiction, written consents would be required. In the absence of such consents, the husband’s only alternative would be to pursue the matter in Texas, where his ex-spouse had moved.
Several other jurisdictions have followed the same reasoning.
The Oklahoma Court of Civil Appeals recently decided Etter v. Etter, 18 P.3d 1088 (Okla. App. 2001). In that case, the parties were divorced in Oklahoma, and the district court ordered the father to pay child support. The father later filed a motion in Oklahoma to modify child support, even though he had moved to Missouri and the mother and children had moved to Illinois. The mother s motion to dismiss for lack of jurisdiction under UIFSA was denied, and the district court modified the child support order.
The Oklahoma Court of Civil Appeals analyzed Oklahoma’s equivalent of K.S.A. 2001 Supp. 23-9,205(a)(1) and (2):
“The portion of UIFSA at issue here is 43 O.S. Supp.2000 § 601-205, Continuing, exclusive jurisdiction . . .
. . Father asserts the statute’s language must be read in the disjunctive, meaning the trial court issuing the support order would continue to have jurisdiction under either § 601-205(A)(1) or (2).
“The difficulty in interpreting the statute is that the subsections are not written in a parallel manner. Subsection (1) mandates that jurisdiction remains with the court issuing the support order as long as at least one of the parties resides in Oklahoma. Subsection (2) mandates that jurisdiction remains until all the parties file written consents. In other words, subsection (1) applies as long as no action is taken (where at least one party remains in Oklahoma) while subsection (2) applies only if some action is taken (the parties file written consents). Father’s argument is that the subsections must be read in the alternative, and, because the parties have not filed written consents, jurisdiction remains with the trial court.
“However logical this analysis may seem, it leads to an illogical result. Under Father’s analysis, Oklahoma would retain jurisdiction even if both parties left the state, as long as one party refused to allow a more convenient state tribunal to assume jurisdiction. Our research has shown that no court, when faced with similar facts and the same section of UIFSA, has adopted this reasoning and reached that result.” 18 P.3d at 1089-90.
Louisiana, Oregon, and Texas have recently agreed. See Jurado v. Brashear, 782 So. 2d 575, 580 (La. 2001) (Louisiana court lost continuing, exclusive jurisdiction to modify child support order after parties and children left state); Cohen v. Powers, 180 Or. App. 409, 416, 43 P.3d 1150 (2002) (Alabama court no longer had continuing, exclusive jurisdiction over support order under UIFSA because neither party resided in Alabama); In re B.O.G., 48 S.W.3d 312, 318, rev. denied (Tex. Civ. App. 2001) (Texas court no longer had jurisdiction to modify the support order under UIFSA because parties no longer resided in Texas); see also Muskin, Uniform, Interstate Family Support Act, 35 Md. B.J. 54 (Jan./Feb. 2002) (“A state has CEJ [continuing, exclusive jurisdiction] if it issued a child support order and either one of the parties or a child still resides ’ in the state. The state loses CEJ when all of the individuals leave the state.”); Atkinson, Long-Arm Collection Through the Uniform Interstate Family Support Act, 23 Fam. Advoc. 46, 48 (Fall 2000) (“The issuing state loses subject-matter jurisdiction to modify a child support order when all case participants permanently relocate outside the state.”).
This brings us to the second issue; Whether the Kansas district court is free to exercise jurisdiction in the absence of a petition to transfer the case under K.S.A. 2001 Supp. 23-9,301(c), even though it lacks continuing, exclusive jurisdiction under K.S.A. 2001 Supp. 23-9,205(a)(1). The district court initially quoted Abplanalp — “[ojnce Kansas has lost continuing, exclusive jurisdiction and a motion to modify child support is filed, upon proper motion, the order for child support should be forwarded to an appropriate tribunal” — and appeared to appreciate it should not entertain the motion. It then contradicted itself, however, finding it would retain jurisdiction and modify the child support order because the parties would otherwise be “in limbo.”
The parties would not have been “in limbo” if the district court had dismissed the case for lack of jurisdiction. As the Louisiana Supreme Court recently said:
“Significantly, there is no limbo situation, as feared by the court of appeal, when both parents and the child move out of the issuing state. The court of the issuing state retains jurisdiction to enforce its order, but not to modify the order. If either party desires modification, the burden is on that party to take appropriate action in the appropriate state. When the obligor wishes to reduce Iris or her obligation, the reduction must be sought in the obligee’s state of residence; when the obligee wishes an increase in support, that increase must be sought in the obligor’s state of residence.” Jurado, 782 So. 2d at 580.
This is the law in Kansas as well. The Gentzel panel observed that the father could file a motion to modify the Arizona order in the mothers new state of residence under K.S.A. 2001 Supp. 23-9,611(a)(1). Similarly, with regard to child support orders originating in Kansas, K.S.A. 2001 Supp. 23-9,301(c) provides:
“An individual petitioner or a support enforcement agency may commence a proceeding authorized under this act by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state which has or can obtain personal jurisdiction over the respondent.”
Thus Trina has the option of asking the originating Kansas tribunal to forward her motion to modify to Texas, or she can file the motion to modify in Texas herself. The Texas court can obtain problem-free personal jurisdiction over Franklin. Trina’s failure thus far to pursue one of these available courses of action did not resurrect subject matter jurisdiction in the Kansas district court. “The district courts of Kansas are expressly created by the Kansas Constitution and are given only such jurisdiction as may be provided by the legislature.” In re Care & Treatment of Blackmore, 30 Kan. App. 2d 90, 95, 39 P.3d 89 (2002).
The district court erred by denying Franklin’s motion to set aside default judgment for lack of subject matter jurisdiction. The order modifying child support is void and must be vacated. Because Franklin’s subject matter jurisdiction argument is dispositive, we do not address his further argument regarding lack of personal jurisdiction.
Reversed and remanded with instructions to set aside the default judgment, vacate the order modifying child support, and pursue further proceedings consistent with this opinion. | [
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Green, J.;
Paul J. Luttig, Jr., appeals his convictions in a bench trial of unlawful manufacture of methamphetamine and possession of drug paraphernalia. On appeal, Luttig contends that the trial court wrongly failed to suppress certain evidence obtained in an illegal search. In addition, Luttig maintains that the trial court improperly imposed a felony sentence instead of a misdemeanor sentence for his conviction of unlawful manufacture of methamphetamine. We disagree and affirm.
On May 21, 2000, when Luttig’s wife, Tammy, returned home to pick up some of her personal belongings, she saw Luttig brandishing a shotgun in a suicidal manner. Luttig’s behavior prompted Tammy to call the police. When Luttig opened the door to his house, the police took him into custody. The police saw a sawed-off shotgun and a .22-caliber weapon on a couch.
Although the police did not have any specific information about other people being in the house, they saw a car in tire driveway that was not registered to Luttig. This fact led police to believe that other individuals could be in the house. As a result, the police made a protective sweep to look for other people in the house and to retrieve any other weapons laying out. During the sweep, an officer found a .22-caliber rifle lying on a windowsill in an upstairs bedroom. On the floor just a few feet away from the rifle, there were ziplock baggies, syringes, and other items known by the of ficer to be drug paraphernalia. No other persons were found in the house.
Luttig moved to suppress the evidence obtained in the search of the house, arguing that the officers’ warrantless search of the house was not justified and Tammy’s consent was invalid. At the suppression hearing, Detective Terry explained why he ordered the protective sweep:
“I immediately ordered a protective sweep of the residence to make sure there was nobody else in the residence that had been harmed or possibly harm us [sic]. Also to look for more weapons as my initial entry into die residence I found the sawed off shotgun but I was told there was [sic] possibly more weapons.”
In denying Luttig’s motion, the trial court determined that the protective sweep was justified and Tammy’s consent was valid.
Luttig challenges the trial court’s denial of his motion to suppress on a number of grounds. First, Luttig argues that the officers did not conduct a lawful protective sweep of his house. Second, Luttig maintains that Tammy lacked authority to consent to a search of his house because she was not living there at the time. Third, Luttig contends even if Tammy had had authority to consent to a search, her consent was not valid because the officers failed to inform her of the true focus of the search.
When analyzing a trial court’s decision on a motion to suppress evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from the facts by a de novo standard. State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 (2000). Accordingly, this court will not reweigh the evidence but will conduct an independent review of the trial court’s ultimate determination of whether to suppress the evidence. See 270 Kan. at 128.
Protective Sweep:
Luttig maintains the officers conducted an illegal warrantless search of his house because a protective sweep was not justified under the circumstances.
The Fourth Amendment to the United States Constitution bars only unreasonable searches and seizures. Maryland v. Buie, 494 U.S. 325, 331, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990). Gener ally, the search of a home is not reasonable without a warrant or probable cause. 494 U.S. at 331. However, an exception articulated in Buie is applicable to the present case.
In Buie, the defendant and an accomplice committed an armed robbery, and an arrest warrant was subsequently executed. Upon the defendant’s emergence from the basement of his home, officers arrested him and conducted a search of the basement to make sure no one else was present. An officer discovered incriminating evidence in plain view in the basement. The defendant challenged the warrantless search of the basement and sought suppression of the incriminating evidence.
The United States Supreme Court recognized an exception to the general rule against warrantless searches for a “protective sweep” incident to an in-home arrest when the officer has a reasonable belief, based on specific and articulable facts, that the area to be swept harbors someone posing a danger to those on the arrest scene. 494 U.S. at 327. The Court defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” 494 U.S. at 327.
The Court explained when such a sweep is appropriate:
“[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. . . .
“We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer tiran is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” 494 U.S. at 334-36.
Our Supreme Court has adopted the definition of protective sweep as set forth in Buie. See State v. Johnson, 253 Kan. 356, 370, 856 P.2d 134 (1993). In Johnson, the police suspected that the defendant and an accomplice were responsible for the disappearance of a confidential drug informant. After arresting the defendant and the accomplice in the defendant’s residence, the officers proceeded to conduct two or three sweeps through the house, at some point even looking in a washing machine. After the sweeps, the officers obtained a search warrant and seized evidence from the house and pickup.
Our Supreme Court determined that specific and reasonable facts and the inferences drawn therefrom existed for a protective sweep because the officers knew there were guns in die house, they had previously heard female voices in the house who were not accounted for, and they were concerned someone could have entered the home through the rear windows or doors. The court held, however, that the scope and length of the protective sweeps exceeded the hmitations established in Buie. Johnson, 253 Kan. at 370.
Here, as the State notes, Luttig’s challenge to the officers’ sweep of his house is based largely on a misstatement of the evidence. Citing Buie, Luttig maintains that the protective sweep was illegal because it was not conducted under an in-home arrest. Contrary to Luttig’s contention, his arrest did not take place outside of his house. The testimony presented during the suppression hearing clearly established that the officers took Luttig into custody while he was inside the house.
Luttig also maintains that the officers did not have reasonable and articulable facts that his house harbored an individual posing a danger to the officers. He admits there was a car in the driveway that did not belong to him but maintains this fact was not enough to warrant a protective sweep of his house.
Contrary, to Luttig’s claim, the officers had been told that Luttig was armed with a sawed-off shotgun. Upon arriving, the officers saw a car in the driveway that did not belong to Luttig. In fact, the car was registered to a person recently convicted on drug charges.
Importantly, unlike the situation in Johnson, there is nothing in the record to suggest the officers conducted anything more than a cursory sweep through Luttig’s house to look for persons and weapons. The drug evidence was discovered in plain view next to a gun.
In denying Luttig’s motion to suppress, the trial court found there was “adequate and sufficiently narrow justification” for the officers’ protective sweep of Luttig’s house. The court explained:
“The purpose of the sweep was found to be protection of officers and to the ascertaining of the extent of the situation, including finding of any victims in the house. On the basis of finding that the protective sweep was legitimate, the Court found that there was no taint which could adversely effect or implicate to [sic] consent search which followed.”
Giving deference to the trial court’s findings, the officers possessed a reasonable belief that they were in danger, such that their protective sweep of the house was legitimate. See Buie, 494 U.S. at 334,337. Further, the sweep did not exceed the scope and length limitations set forth in Buie. Accordingly, the trial court correctly refused to suppress the drug evidence found in plain view during the protective sweep. Finally, because of our holding, we need not address Luttig’s argument about Tammy’s lack of authority to consent to the search of the house.
Sentence:
Luttig argues that the trial court erred in imposing a felony sentence for his conviction of unlawful manufacture of methamphetamine. He was charged and sentenced under K.S.A. 2001 Supp. 65-4159(b), a drug severity level 1 felony. According to Luttig, both K.S.A. 2001 Supp. 65-4159 and K.S.A. 2001 Supp. 65-4127c set forth penalty provisions for die same crime, but the latter sets the severity level as a class A nonperson misdemeanor; thus, the trial court was required to sentence him according to the lesser penalty provision.
As an initial matter, Luttig did not raise this issue before the trial court. Generally, his failure to do so would preclude appellate review. See State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999) (issue not presented to trial court will not be considered for first time on appeal). However, under K.S.A. 22-3504(1), courts have jurisdiction to correct an illegal sentence at any time. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
Interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., is a question of law, and an appellate court’s review is unlimited. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998). This court will strict!) construe the statutes at issue in favor of Luttig; any reasonable doubt about their meaning will be decided in his favor. See State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). However, the rule of strict construction is subordinate to the requirement that judicial interpretation be reasonable and sensible to effect legislative intent. 264 Kan. at 14.
K.S.A. 2001 Supp. 65-4159 provides, in relevant part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.
“(b) Any person violating the provisions of this section with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance or controlled substance analog, upon conviction, is guilty of a drug severity level 1 felony and the sentence for which shall not be subject to statutory provisions for suspended sentence, community work service, or probation.”
K.S.A. 2001 Supp. 65-4127c provides, in relevant part:
“Except as otherwise provided in K.S.A. 65-4127a and 65-4127b and K.S.A. 2001 Supp. 65-4160 through 65-4164 and amendments thereto, any person violating any of the provisions of the uniform controlled substances act shall be guilty of a class A nonperson misdemeanor.”
Luttig relies on State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987), for the proposition that where two offenses contain identical elements but carry different severity level classifications, a defendant convicted of either crime may be sentenced only according to the lesser severity level. His reliance on those cases is misguided, however, as only one of the statutes at issue here actually defines a crime; the other statute is merely a general penalty provision. Nevertheless, further examination of Luttig’s claim is warranted.
By a strict reading of K.S.A. 2001 Supp. 65-4127c, Luttig is correct that K.S.A. 2001 Supp. 65-4159 is not one of the statutes exempted from the general penalty provision applicable under K.S.A. 2001 Supp. 65-4127c. Under standard rules of statutory construction, statutes should not be read so as to add that which is not readily found therein or to read out what, as a matter of ordinary language, is in it. Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). This would be the end of the analysis had K.S.A. 2001 Supp. 65-4159(b) not provided its own penalty provision. Because there is a specific penalty provision set forth in K.S.A. 2001 Supp. 65-4159(b), however, this courtis faced with a conflict between a general and special statute.
“General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]” In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999). Here, K.S.A. 2001 Supp. 65-4159(b) is the more specific statute, as it defines the crime of which Luttig was convicted. In contrast, as evidenced by its title, K.S.A. 2001 Supp. 65-4127c is a general penalty statute. There is nothing to suggest the legislature intended for the penalty set forth in the general statute to trump that which was prescribed in the special statute. Accordingly, we determine that the penalty provision in K.S.A. 2001 Supp. 65-4159(b) prevails.
Our determination is further evidenced by the marked disparity between the penalties prescribed in the statutes at issue. The statute defining the crime assigns it the most severe drug penalty level, while the general statute, if applied, would make the crime a misdemeanor. As the State notes, the legislature has defined the unlawful manufacture of methamphetamine as an inherently dangerous felony. See K.S.A. 21-3436(a)(14); State v. LaMae, 268 Kan. 544, 556, 998 P.2d 106 (2000). It would be absurd and contrary to stated legislative intent to impose a sentence consistent with a class A nonperson misdemeanor for such a crime. Statutes should be construed to avoid unreasonable results. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
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Elliott, J.:
Marshall Wilson appeals his convictions of attempted second-degree murder, aggravated kidnapping, and conspiracy to commit intentional second-degree murder. We affirm in part and reverse in part.
Wilson argues the State’s third amended information was defective in that it omits essential elements for the crimes of attempt to commit first-degree murder, aggravated kidnapping, and conspiracy to commit first-degree murder. Since he followed proper procedures in challenging tire convictions, we analyze the merits of his arguments on the basis of cases decided before State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990). See State v. Crockett, 26 Kan. App. 2d 202, 205, 987 P.2d 1101 (1999).
The State acknowledges the information was defective with respect to the aggravated kidnapping charge and conviction in that it lacked the element “with intent to hold.” That conviction is, therefore, reversed. See State v. Jackson, 239 Kan. 463, Syl. ¶¶ 4, 5, 721 P.2d 232 (1986).
Wilson was charged with attempted first-degree murder, but convicted of the lesser crime of attempted second-degree murder. The charge in the amended information reads in pertinent part:
“[O]n or about tire 11th of March, 1998, one Marshall Wilson [and] others did unlawfully, feloniously, knowingly and willfully commit an overt act, to-wit: did stab one Diana Clark and then place her body in the road and run over her with a vehicle, toward the perpetration of the crime of Murder in the First Degree as defined in K.S.A. 21-3401, with the intent to commit said crime, but failed or was prevented or intercepted in the execution of said crime, in violation of K.S.A. 21-3301 (Attempted Murder in the First Degree, Severity Level 1, Person Felony).”
Wilson claims the information was defective because none of the elements of first-degree murder was listed, depriving him of knowing whether he was charged with attempted premeditated first-degree murder (K.S.A. 21-3401[a]) or attempted felony murder (K.S.A. 21-3401[b]). The argument is without merit.
An attempt crime has three essential elements: the intent to commit the crime, an overt act toward the perpetration of the crime, and a failure to consummate the crime. K.S.A. 21-3301(a); State v. Cory, 211 Kan. 528, 532, 506 P.2d 1115 (1973). Since the felony murder statute depends on an actual homicide, Kansas does not recognize the crime of attempted felony murder. State v. Robinson, 256 Kan. 133, 136, 883 P.2d 764 (1994).
In charging an attempt to commit crime, the essential elements of the crime attempted need not be meticulously enumerated in the charging document, but the charge must advise the defendant of the offense he or she is alleged to have attempted to commit. State v. Crane, 260 Kan. 208, 226, 918 P.2d 1256 (1996).
In Crane, the Supreme Court reversed defendant’s convictions for attempted aggravated criminal sodomy and attempted rape because the complaint failed to allege the elements of the crime he had attempted to commit. The facts in Crane are patently distinguishable from the facts herein. While rape and sodomy may be committed in numerous different ways, premeditated murder and felony murder are not separate or different offenses. “ ‘ “The statute merely provides alternate methods of proving the deliberation and premeditation required for a conviction of first-degree murder under K.S.A. 21-3401.” ’ ” Robinson, 256 Kan. at 135.
Here, the overt act charged was stabbing the victim and then placing her body in the road and running over her with a vehicle. Without question, these are overt acts in attempting to kill someone. The essential elements of attempted first-degree murder were included in the charging document and defendant was clearly advised of the crime he was charged with attempting to commit. The information was sufficient.
Wilson also attacks his conviction for conspiracy. He was charged with conspiracy to commit first-degree murder but convicted of the lesser offense of conspiracy to commit second-degree intentional murder. This part of the charging document reads in pertinent part:
“[O]n or about the 11th day of March, 1998, one Marshall Wilson did . . . unlawfully, feloniously, knowingly and willfully enter into an agreement with Bruce Browne to commit or assist in the commission of a crime, to-wit: Murder in the First Degree, as defined in K.S.A. 21-3401, and in furtherance of such agreement committed the following overt act, to-wit: drove the victim, Diana Clark, to a secluded area where she was stabbed and run over by a vehicle, in violation of K.S.A. 21-3302.”
The essential elements of conspiracy are an agreement between two or more persons to commit or assist in committing a crime and the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy. State v. Smith, 268 Kan. 222, 227, 993 P.2d 1213 (1999).
Here, Wilson’s arguments are essentially the same as discussed above. In a conspiracy case, the elements of the underlying offense need not be charged with the same degree of specificity as would ordinarily be required in a prosecution of the underlying offense. See United States v. Daily, 921 F.2d 994, 999 (10th Cir. 1990), cert. denied 502 U.S. 952 (1991).
Our conspiracy statute requires a specific intent. State v. Campbell, 217 Kan. 756, 770, 539 P.2d 329 (1975). Felony murder does not require a specific intent. Robinson, 256 Kan. at 136. Accordingly, Kansas does not recognize the crime of conspiracy to commit felony murder. One cannot intentionally conspire to commit a crime which only requires a mens rea of negligence or no mens rea at all.
Further, as noted above, there is but one first-degree murder statute, stating alternate means of proving the crime. Robinson, 256 Kan. at 135.
The information was sufficient.
Wilson also contends the trial court erred in failing to suppress certain incriminating statements made during a custodial interrogation. The trial court found the statements were voluntarily made. The statements of which a complaint is made occurred during a second custodial interrogation.
When an accused has expressed a desire for counsel, the accused may not be subjected to further interrogation until counsel has been provided unless the accused initiates further communications. See Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); State v. Copridge, 260 Kan. 19, 25, 918 P.2d 1247 (1996).
In the present case, the trial court, in denying Wilson’s motion to suppress, found there was no question he was advised of and understood his Miranda rights. The trial judge further found:
“He stated that he called his attorney — or asked to call Iris attorney, excuse me. Even if I accept that as true, the fact remains that even knowing that he had the right to do that and that he didn’t have to give a statement, he called police and told the police he was going to do it anyway. He chose to do it without an attorney. And he knew he had a right to wait for his attorney if he wished.”
Here, the record reveals Wilson attempted to contact his attorney before giving his first statement, but was unable to reach her. He then called the detective back and advised he wished to give another statement.
There was substantial evidence the second incriminating statement fell within the outline of Edwards v. Arizona, and there was substantial evidence the State met its burden of showing Wilson voluntarily waived his right to counsel. The trial court did not err in denying Wilson’s motion to suppress.
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Elliott, J.:
In this Kansas Open Records Act (KORA) case, the Kansas Department of Transportation (KDOT) appeals the trial court’s order granting the Telegram Publishing Company, Inc., (Telegram) attorney fees and costs pursuant to K.S.A. 45-222(c). We reverse.
Relevant background
After KDOT denied a request by Telegram for access to its records on the ratings of railroad crossings in Finney County, Telegram filed this suit to enforce a request for a public record pursuant to KORA, K.S.A. 45-215 et seq. Summary judgment was entered in favor of Telegram. Some 11 months later, the trial court granted Telegram over $13,000 in attorney fees and costs, finding KDOT’s denial of access to the records was not in good faith and the agency’s position was without basis in fact or law. It is from this order that KDOT appeals.
Standard of review
K.S.A. 45-222(c) provides:
“In any action hereunder, the court shall award attorney fees to the plaintiff if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.” (Emphasis added.)
We stated in Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 954, 937 P.2d 1257 (1997), that the award of attorney fees pursuant to the statute then in effect was within the trial court’s discretion. Since then, K.S.A. 45-222(c) has been amended. See L. 2000, ch. 156, § 4. Telegram argues the change from “may” to “shall” removes trial court discretion and malees the award of attorney fees and costs mandatory upon the requisite findings by the trial court. See Willis v. Kansas Highway Patrol, 273 Kan. 123, 133, 41 P.3d 824 (2002).
Accordingly, we must first determine which version of the statute applies to this case. Telegram filed its petition in October 1998, summary judgment in its favor was entered in February 2000, and Telegram filed its motion for attorney fees in May 2000. The amendment to K.S.A. 45-222(c) became effective July 1,2000, and the trial court awarded attorney fees and costs in January 2001.
The change in K.S.A. 45-222(c) from “may” to “shall” was a procedural change, and we will review the trial court’s holdings under the amended statute. See Halley v. Barnabe, 271 Kan. 652, 662-64, 24 P.3d 140 (2001).
We also consider K.S.A. 2001 Supp. 60-211(c), under which a trial court “shall” impose appropriate sanctions, including attorney fees, if a party signs a pleading in violation of K.S.A. 2001 Supp. 60-211(b). See Wood v. Groh, 269 Kan. 420, 430, 7 P.3d 1163 (2000). Violations of K.S.A. 60-211(b) include legal contentions not warranted by existing law.
The substance of K.S.A. 2001 Supp. 60-211(b) and (c), while broader than K.S.A. 45-222(c), serves the same purpose as the latter statute. Both statutes state the trial court “shall” impose sanctions when the appropriate findings are made. Accordingly, our standard of review in the present case should be the same as a review of sanctions imposed under K.S.A. 60-211(c).
Our review, then, will be for substantial competent evidence, but when the controlling facts are based on written or documentary evidence, our review is plenary. In re Hesston Corp., 254 Kan. 941, 987-88, 870 P.2d 17 (1994); Giblin v. Giblin, 253 Kan. 240, 254, 854 P.2d 816 (1993).
Here, the trial court heard no oral testimony, and all controlling facts are based on written or documentary evidence. Our review is, thus, plenary or unlimited.
Merits
Telegram’s position before the trial court and now on appeal is that the trial court must consider KDOT’s conduct during its legal defense of the action — i.e., those actions taken after the institution of this action. The trial court agreed, ruling: “Defendants made bad faith arguments in defense of this lawsuit. There was no basis in fact or law for the defense.”
But it is not the conduct of KDOT during the defense of this lawsuit that can potentially subject it to attorney fees pursuant to K.S.A. 45-222(c). That statute provides for attorney fees if the trial court finds the agency’s “denial of access to the public record” was not in good faith and without a reasonable basis in fact or law. (Emphasis added.)
K.S.A. 45-220 sets forth the procedures for requesting a public document. On request, K.S.A. 45-218(d) gives the custodian three options: (1) grant access to the public record within 3 business days; (2) inform the requestor that access cannot be granted within 3 business days but will be available at a later date; and (3) deny the request within 3 business days. After a denial and a demand by the requestor, the agency must provide a written statement of the grounds for the denial, citing the specific provisions of law under which access is denied.
By using the words “denial of access to the public record” in K.S.A. 45-222(c), we hold the legislature was referring to the denial of information as set forth in K.S.A. 45-218(d). Conduct of a party during litigation with respect to asserting good faith positions based on law and fact is governed by K.S.A. 2001 Supp. 60-211. See, e.g., In re Estate of Winslow, 23 Kan. App. 2d 670, 677-78, 934 P.2d 1001 (1997).
We will, therefore, only take into consideration the conduct of KDOT when it denied Telegram access to the public record— before Telegram filed suit to enforce its KORA request. In doing so, however, 45-222(c) does not limit our inquiry to the reasons given by KDOT in its letter to Telegram explaining its denial pursuant to 45-218(d). K.S.A. 45-222(c) does not limit itself to the 45-218(d) statement of reasons for denial of access to the public record.
KDOT claims its denial was in good faith with a reasonable basis in law, relying on K.S.A. 2001 Supp. 45-221(a)(1) and 23 U.S.C. § 409 (1994).
K.S.A. 2001 Supp. 45-221(a)(1) states:
“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(1) Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure.”
23 U.S.C. § 409 provides:
“Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data.” (Emphasis added.)
KDOT claims it was reasonable to deny Telegram’s request for access to a public record because 23 U.S.C. § 409 is a federal statute that “restricts” the disclosure of the records at issue in the present case, even though the federal statute itself is limited to actions for damages; thus, pursuant to K.S.A. 2001 Supp. 45-221(a)(1), it was not required to grant Telegram’s request for access to the records.
This appears to be an issue of first impression in Kansas. Further, neither the parties nor this court through independent research has discovered any case directly addressing this issue in any jurisdiction.
It is again appropriate to refer to case law developed under K.S.A. 2001 Supp. 60-211. In In re Hesston Corp., it was said:
“Issues of first impression will arise in Kansas which have not been litigated elsewhere or which have not been litigated widely. Litigants and creative advocates must not be prevented from developing new theories or presenting new causes of action in the courts of this state merely because they are untested or have not been received favorably in some other jurisdiction. Where the weight of authority is overwhelmingly unfavorable to a litigant’s position or there is controlling authority against it, there may be a question whether the claim is warranted by a good faith argument for extension, modification or reversal. Neither of those circumstances is presented here.” 254 Kan. at 990.
Here, we cannot say it was unreasonable for KDOT to rely on the federal statute, combined with K.S.A. 45-222(a)(1), in denying Telegram’s request for access to the public record. It was not unreasonable for KDOT to read the federal statute as restricting disclosure of the requested information. And it was not unreasonable for KDOT to interpret K.S.A. 45-221(a)(1) as encompassing its interpretation of the federal statute.
In the present case, the trial court concluded that 23 U.S.C. § 409, in conjunction with K.S.A. 2001 Supp. 45-221(a)(1), did not give KDOT authority to deny access to the requested documents. We have no occasion to review this ruling, since it has not been appealed.
On the question presented to us, on plenary review, we hold it was not unreasonable for KDOT to rely on those statutes in denying Telegram’s request for access. The trial court erred in holding otherwise and in imposing the sanction of attorney fees. The trial court also erred in considering KDOT’s conduct in defending the litigation. We reverse the award of attorney fees against KDOT.
We also reverse the award of costs against KDOT for the same reasons we reverse the award of attorney fees. In addition, K.S.A. 45-222(c) only gives the trial court authority to impose attorney fees; it makes no mention of costs. There is simply no statutory or legal authority for the imposition of costs in this case.
Reversed. | [
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