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Elliott, J.:
Appellants appeal the award of costs following an award of summary judgment in favor of appellees.
We affirm.
Appellants first argue the award of costs is premature because the merits are currently on appeal to this court; they cite no case law nor supporting authority for this contention. A review of the statutes indicates the legislature contemplated an award of costs to occur directly following a final order of the trial court. See K.S.A. 60-2004 (indicating payment of costs does not constitute acquiescence in the judgment so as to prevent an appeal).
Appellants also argue the trial court erred in including the stenographic charges of depositions in the award of costs to appellees. Stenographic charges for the taking of depositions may be taxed as costs where the depositions were “used as evidence.” K.S.A. 1998 Supp. 60-2003(5). Appellants claim the depositions were not used as evidence.
The trial court held the depositions were used as evidence in determining the motion for summary judgment and “served the same purpose as the deponents’ testimony or deposition transcripts would have served at trial.”
Appellants’ reliance on Bridges v. Bentley, 244 Kan. 434, 445-46, 769 P.2d 635 (1989), and Wood v. Gautier, 201 Kan. 74, 78-79, 439 P.2d 73 (1968), is misplaced. Both of those cases involved the use of depositions at trial, but the depositions were not admitted into evidence. Those courts held the costs of those depositions could not be taxed as costs.
Here, the trial court did not abuse its discretion in distinguishing the present situation because the depositions were used as evidence by the trial court in deciding the summary judgment motion.
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Elliott, J.:
After sentencing, Tony F. Walker sought to withdraw his guilty plea to robbery. The trial court denied his K.S.A. 60-1507 petition following a full evidentiary hearing. Finding Walker did not bring the action in good faith, the trial court assessed court costs and attorney fees for appointed counsel.
Walker appeals, and we affirm in part and reverse in part.
Here, the record in the criminal case demonstrates the State possessed overwhelming evidence that Walker was guilty of aggravated robbeiy. His own statements to police supported conviction. He was convicted pursuant to plea bargains in two other counties of charges arising from similar robberies involving the same chain of stores. In light of the record, Walker’s plea agreement was so advantageous that accepting it would have been the only reasonable course for a defendant who was fully informed of the nature of the charges, the State’s evidence, and the consequences of the plea.
Regardless of whether Walker had an adequate opportunity to study the police report, he would either have pled to robbery, a level 5 person felony, or been convicted of aggravated robbery, a level 3 person felony, or robbery. He might have been worse off, but he would not have done better.
The trial court did not err in denying Walker s motion to withdraw his plea.
Walker also contends the trial court erred in ordering him to pay attorney fees for his appointed counsel. Both parties characterize the cost as attorney fees rather than as an obligation to reimburse the State for funds expended on his behalf.
A court lacks authority to assess attorney fees under its equitable powers absent statutory authority. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905-06, 908 P.2d 1329 (1995). Here, whether the trial court had the authority to impose attorney fees is a question of law; our review is plenary. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
Neither K.S.A. 1998 Supp. 60-211 nor the former K.S.A. 60-2007 (repealed effective July 1, 1997, see L. 1997, ch. 173, § 38) addresses taxing an indigent party with the cost of his or her court-appointed counsel. The State concedes the trial court lacked statutory authority to impose the fees on the specific ground the motion was frivolous, but argues the trial court reached the right result because the fees may be imposed as part of court costs. The State relies on State v. Fought, 14 Kan. App. 2d 17, 18-19, 781 P.2d 742, rev. denied 245 Kan. 783 (1989), where we held that ordinary costs — there the docket fee — could be assessed against an indigent incarcerated 60-1507 movant.
Nothing in K.S.A. 1998 Supp. 60-2001(d), however, specifically authorizes taxing Walker for the reimbursement of his own court-appointed attorney fees. Usually, when attorney fees are to be included as part of costs, a statute explicitly includes them. See, e.g., K.S.A. 61-2709(a) (appeal from small claims court); K.S.A. 1998 Supp. 60-1610(b)(4) (costs and attorney fees in divorce action); K.S.A. 1998 Supp. 60-2006(a) (motor vehicle negligence cases).
These statutes, though, refer only to the shifting of an adversaiy s attorney fees; they do not address liability for the expense of court-appointed counsel for a 60-1507 petitioner, an anomaly created by the right to counsel in a civil action collaterally attacking a criminal conviction.
The right to counsel in a civil proceeding to terminate parental rights is somewhat similar. The Kansas Code for Care of Children specifically provides that fees for appointed counsel may be taxed against any interested party, including the indigent parent entitled to counsel. K.S.A. 1998 Supp. 38-1511(b), (c)(2). We can find no comparable statute authorizing taxation of public defender fees to the 1507 petitioner.
The trial court does have statutory authority to require a criminal defendant to reimburse the Board of Indigents’ Defense Services (BIDS) for the cost of his or her defense. K.S.A. 1998 Supp. 22-4513, effective July 1, 1997. See L. 1997, ch. 181, § 23. Prior to the amendment, BIDS could request reimbursement by motion. See K.S.A. 22-4513.
Absent express statutory authority, we hold the trial court cannot order an unsuccessful 60-1507 petitioner to reimburse the attorney fees paid to his or her court-appointed counsel.
The trial court did not err in assessing court costs of $66.50 against Walker.
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The opinion of the court was delivered by
Miller, J.:
A motion to dismiss this interpleader action was sustained and attorneys’ fees were awarded to defendants and taxéd against the plaintiff, Club Exchange Corporation. It appeals, challenging both rulings.
A two-car collision occurred on North 59th Street in Kansas City, Kansas, on September 12, 1974. Harry Searing, driving one of the vehicles, was killed. His wife, Mary Searing, was injured. Edward Riggs, the driver of the other vehicle, apparently escaped injury. Two of the passengers in the Riggs vehicle, John Drury and Danny Hartford, were killed; the third passenger, Ephram L. O’Banion, was injured. Club Exchange insured both vehicles and both drivers involved. Its liability policy on the Searing vehicle had limits of $50,000 for injuries sustained by any one person and a maximum of $100,000 for injuries sustained by two or more persons in any one occurrence, commonly known as $50,000/100,000 limits. The limits of the Riggs policy were $15,000/30,000.
Club Exchange investigated promptly and determined that there were numerous claims for damages in excess of the policy limits; and that the responsibility for the collision, and accordingly the liability, could not be readily resolved. Promptly, and only thirty-two days after the collision occurred, Club Exchange instituted this interpleader action. It joined as defendants the survivors of the collision and the heirs and next of kin of those who were deceased. No administrators had yet been appointed. Plaintiff alleged that it was faced with a multiplicity of claims in excess of the policy limits, and that by reason of the conflicting claims and the Kansas comparative negligence statute it was unable to determine its total liability or the share each claimant should receive. It asked the court to require the parties to submit in one hearing for decision by the court their respective claims, grant appropriate credit to the plaintiff for any payments made by it under the Kansas Automobile Reparations Act, and allow plaintiff to pay into the registry of the court the total amount of the claims against the fund. In effect it sought a determination of its total liability and asked that it be permitted to pay that amount into court and be released from all further liability on its policies. It also sought a temporary injunction to prevent the defendants from instituting separate lawsuits.
Motions to dismiss, on the grounds that the petition was contrary to the intention of K.S.A. 60-1701, were filed; these were denied by the district judge who said:
“This type of situation seems to fit the purpose of the interpleader statute (Pan American Fire & Cas. Ins. Co. vs. Revere, 188 F. Supp. 474; Gard’s Rules of Civil Procedure 110; Vernons Rules of Civil Procedure 219), and it is my opinion that the action should not be dismissed — at least at this stage of the proceedings. . . .”
Thereafter, separate lawsuits were filed in the Wyandotte District Court and those lawsuits, together with this action, were assigned to division 1. New motions to dismiss were filed, these being . . for the reason that said action has been improperly brought; for the reason that all claims arising out of the facts of the above case are not before the Court; (and) that said action will produce multiplicity of litigation and . . . will deny defendants’ right to a trial by jury. . .
The trial judge, in ruling upon these motions, said:
“I think that Club Exchange Corporation filed this lawsuit in good faith, and I think it’s in the best interests of the claimants, the defendants in the action to proceed in the lawsuit. . . . [I]t would be a fairly simple trial in which the Court would determine the respective liability of Ed Riggs, on the one hand, and Mr. Searing, the driver of the other car, and to determine the damages that each of the claimants had sustained. Then the Court, by a matter of computation — as is going to be necessary in all cases under the comparative negligence doctrine — would compute how much each person is to get. However, all four of the claimants say, ‘No, we don’t want it to go that route, we want the right to file our own case.’ . . . [B]ecause the plaintiff insurance^ company is not the party against whom the defendants have claims, ... I do not think the interpleader is proper. Additionally, because the injured parties are entitled to pursue one or the other or both drivers for more than his insurance coverage, I think this interpleader action should be dismissed. . . . So . . . the motions to dismiss Mr. Lysaught’s interpleader action will be sustained.
“Costs will be taxed against the plaintiff. I think defense counsel are entitled to some fees for appearing and defending against that suit. ... I will allow what I deem proper and that allowance will become part of the Court’s judgment. . . .”
The principal issue before us is whether an insurance carrier, faced with multiple unliquidated tort claims in excess of the policy limits, may in good faith promptly bring an action in interpleader against the potential claimants, despite the fact that under Kansas practice the claimants could not bring their tort claims directly against the insurer.
K.S.A. 60-222 (a) provides in applicable part that:
“Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. . . .” (Emphasis supplied.)
Kansas has no “direct action” statute, and it is clear that the defendants in this action could not bring direct actions against the plaintiff for injuries sustained in the automobile collision. Once judgments were secured against the insured drivers, then such judgments could be enforced against the plaintiff. See Rector v. Husted, 214 Kan. 230, 519 P.2d 634.
Macek v. Swift & Co. Employees Benefit Association, 203 Kan. 581, 455 P.2d 521, is the only decision by this court concerning the Kansas interpleader statute. In Macek, we said:
“. . . K.S.A. 60-222 (a) is the same as Federal Rule 22 (1), and federal decisions in point construing it are persuasive.” (p. 590.)
Interpleader has been in existence for over 600 years. It originated in the common-law courts, and later was viewed as falling exclusively within the jurisdiction of the English Equity Chancellors. 7 Wright & Miller, Federal Practice and Procedure, Civil § 1701, pp. 351-352. Early federal decisions dealt with common law or “strict” interpleader. The first federal interpleader statute was enacted in 1917; various amendments have been enacted since that time, and the present federal interpleader statute is 28 U.S.C. § 1335, enacted in 1948. A distinction is made in the federal courts between “statutory” interpleader, authorized by 28 U.S.C. § 1335, and “rule” interpleader, authorized by rule 22 (1) F. R. Civ. P. See 7 Wright & Miller, Federal Practice and Procedure, Civil § 1703, p. 365. The distinctions between the two relate primarily to jurisdiction, the amount in controversy, citizenship of litigants, venue, and service of process. For the most part, these differences do not concern us. We do note, however, that K.S.A. 60-222 and rule 22, F. R. Civ. P., unlike the federal interpleader statute, 28 U.S.C. § 1335, do not specifically require that the stake be deposited with the court. The trial court, however, has authority, at any time during the proceedings, to require that the stake be deposited or an appropriate surety bond be posted with the clerk. Ordinarily this should be done prior to trial on the merits.
The United States Supreme Court in State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 18 L.Ed.2d 270, 87 S.Ct. 1199 (1967), had before it the same issue which we face here. That action arose out of . a collision between a pickup truck and a Greyhound bus. Two persons were killed, and thirty-three injured. State Farm, which insured the pickup truck, brought an action in the nature of interpleader in the United States District Court for the district of Oregon. It joined as defendants the owners and drivers of both vehicles and all of the prospective claimants. It anticipated that demands would far exceed its maximum liability of $20,000, and it sought to require all the claimants to establish their claims against the driver of the pickup truck and his insurer in this single proceeding. The trial court granted a broad temporary injunction. On interlocutory appeal, the Court of Appeals for the ninth circuit reversed (363 F.2d 7). The Court of Appeals held that in states like Oregon which do not permit “direct action” suits against insurance companies until judgments are obtained against the insured, the insurer may not invoke federal interpleader. It held that mere claimants with unliquidated tort claims are not “persons having claims against the plaintiff” within the meaning of rule 22, F. R. Civ. P.
The United States Supreme Court reversed. It said:
“We do not agree with the Court of Appeals that, in the absence of a state law or contractual provision for ‘direct action’ suits against the insurance company, the company must wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to invoke the benefits of federal interpleader. That may have been a tenable position under (certain prior) interpleader statutes. ... In 1948, however, in the revision of the Judicial Code, the ‘may claim’ language was restored. Until the decision below, every court confronted by the question has concluded that the 1948 revision removed whatever requirement there might previously have been that the insurance company wait until at least two claimants reduced their claims to judgments. The commentators are in accord.
“Considerations of judicial administration demonstrate the soundness of this view which, in any event, seems compelled by the language of the present statute, which is remedial and to be liberally construed. Were an insurance company required to await reduction of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment pose for the insurer, and the unfairness which may result to some claimants, were among the principal evils the inter-pleader device was intended to remedy.” (pp. 531-533.) (Emphasis supplied.)
We adopt the view expressed in Tashire, and hold that where, as here, an insurance carrier is faced with multiple unliquidated claims, far in excess of its contractual liability, then even in the absence of a “direct action” statute, interpleader is an appropriate remedy, so long as the insurer acts promptly and in good faith. K.S.A. 60-222 (a), like 28 U.S.C.A. § 1335 and rule 22 (1) F. R. Civ. P., uses the word “may.” Probable claims are thus sufficient; it is not necessary that the insurer wait until judgments have been entered against its insured, and attempts made to enforce such judgments directly against the insurer, before invoking the interpleader procedure. In the case at hand, the Jtrial court found that the insurer acted both promptly and in good faith. The record supports those findings.
The court faced a second issue in Tashire — whether the temporary injunction granted by the trial court was over-broad. The temporary injunction restrained the defendants not only from filing or prosecuting any proceeding affecting the property or obligation involved in the interpleader action, but also against State Farm and its insured; and the injunction was later broadened to include Greyhound among those who could not be sued except within the confines of the interpleader proceeding. In this regard, the court said:
“State Farm’s interest in this case, which is the fulcrum of the interpleader procedure, is confined to its $20,000 fund. That interest receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the District Court sought to control claimants’ lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.” (p. 535.)
We should emphasize that interpleader is a joinder device whereby all of those who claim some interest in a particular fund (the stake) may be joined in the action, and may there assert and litigate their claims against the fund. Interpleader protects the stakeholder from multiple suits, and from determining at its peril the validity and priority of disputed claims; it also protects the claimants by bringing them together in one action so that a fair and equitable distribution of the fund may be made.
Under modern interpleader, as provided by K.S.A. 60-222 (a), the stakeholder need not be neutral; it may deny liability, in whole or in part, according to the express terms of the statute. The requirements for “strict” interpleader no longer apply. Further, the trial of disputed claims to the fund, such as those which involve liability or the extent of injuries and damages, may be by jury. 7 Wright & Miller, Federal Practice and Procedure, Civil § 1718, p. 469 et seq.
But interpleader does not, and restraining orders and injunctions granted by the interpleader court should not, limit the filing of lawsuits by the claimants against third-party tortfeasors or against the plaintiff’s insured. As a practical matter, however, where the principal target of the claimants, and the only apparent source from which their claims may be satisfied, is the stake, all claims will no doubt be resolved in the interpleader action.
We do not here deal with the duty of the insurer to defend actions filed against its insured even though it may have deposited in the interpleader action the maximum amount for which it may be liable under its policy, nor do we deal with the duty of the insurer to settle; those questions are not before us.
We turn to the final question, that of the allowance of attorneys’ fees to counsel for the defendants. Under the federal interpleader procedure, counsel fees are frequently awarded to the stakeholder and decisions dealing with such awards are plentiful (see 7 Wright & Miller, Federal Practice and Procedure, Civil § 1719, p. 476 et seq., and 28 U.S.C.A., rule 22, notes 50-53), but we find no federal case in which counsel, fees have been awarded to defendants in interpleader actions. No such fees are authorized by K.S.A. 60-222.
Appellees rely upon K.S.A. 40-256, but that statute and the cases decided thereunder are inapplicable for the reason that there has been no unjustified refusal by the insurer to pay the full amount of the loss. Club Exchange has expressed a willingness to pay, upon direction of the court, the amount for which it is liable under its policy limits. Our comparative negligence statute, together with the diverse policy limits and the unresolved and disputed questions of liability, make determination of the stake difficult. The district court did not make an order requiring payment of any amount into court, and Club Exchange has at no time refused to make such payment. Under the circumstances we conclude that the allowance of attorneys’ fees to the defendants was unwarranted, and wholly unauthorized by statute.
The judgment of the trial court is reversed, and the case is remanded for proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
This action was brought in the name of the state of Kansas upon the relation of the district attorney under K.S.A. 22-3901, et seq., to abate thirty-six (36) pinball machines as common nuisances alleging they had been possessed and used as gambling devices and should be destroyed. The District Court of Wyandotte County, Kansas, ordered thirty-one (31) of the thirty-six (36) machines returned to the owners. The order was based largely on failure of the state to prove that the owners of the machines had knowledge that the machines were being used for gambling purposes.
When confiscated all of these pinball machines were located in bars and restaurants. The managers and employees of the bars and restaurants were not the owners of the machines. They were lessees or bailees by authority of the owners. The thirty-six (36) machines were lawfully seized either incidental to arrests or by means of valid search warrants issued. Criminal charges were brought against the lessees or bailees because cash payoffs had been made directly to law enforcement officers for free games won in playing these machines.
Some of the lessees or bailees were convicted of possessing gambling devices. The use of eleven (11) of these machines resulted in convictions. Some of the lessees or bailees were found not guilty or the charges against them were dismissed. The possession and use of twenty-five (25) machines were involved in this latter category. In the criminal actions where convictions were obtained five (5) of the eleven (11) machines were ordered sold or destroyed as articles of contraband under authority of K.S.A. 22-2512 (4) by the judges presiding over the criminal prosecutions. The order presently appealed from did not change these previous orders which directed that five (5) machines be sold or destroyed.
The remaining thirty-one (31) pinball machines will be divided and considered in two categories: First, the six (6) machines involved in convictions for possessing gambling devices and second, the twenty-five (25) machines on which no convictions were obtained.
The trial court took judicial notice of the criminal actions which had been prosecuted in that court. The thirty-one (31) machines are now in the custody of the sheriff of Wyandotte County. The machines are referred to as “Bally 25-Hole Pinball Machines” and have the following features:
“. . . [T]he player inserts a nickel which brings into play five metallic balls which the player attempts to bring onto the playing field by means of a spring loaded plunger, certain arrangements of these balls will entitle the player to a free replay or more than one free replay, there’s a button or switch for canceling free replays, a meter for recording canceled free replays, a multiple coin feature which allows the player to build up greater odds and a game which lasts only a few seconds.”
At the hearing on the abatement petition the state alleged:
“. . . [T]hat various law enforcement officers did play these machines at the bars and restaurants where they were located. That these various law enforcement officers did insert a nickel for every game played and they did win free replays on these machines which were cashed in for money at the rate of a nickel per every replay game won. That these payoffs were made by the lessees or bailees of these machines or by their employees at the various bars and restaurants where the machines were located.”
From the record on appeal it appears that no evidence was introduced in the abatement action in support of these allegations, other than what was shown by the files in the criminal actions involving these same pinball machines. The court took judicial notice of the files in the previous cases. The decision of the district court was announced after hearing arguments by the district attorney and by attorneys representing some of the owners of the machines. The court concluded:
“. . . [T]hat these pinball machines are not gambling devices per se and that there is no proof that the owners of these machines had any knowledge, actual or constructive, that these machines were used for gambling purposes. That these machines are capable of innocent use. That pursuant to the discretion granted the court in K.S.A. 22-3901 and K.S.A. 22-2512, the court orders that all the machines in question, other than those which have already been ordered confiscated and/or destroyed by the other judges of this Judicial District, be forthwith returned to the owners. . . .”
The state appeals from the judgment. The court based its judgment in part, at least, on the failure of the state to prove that the owners had notice that the machines were in fact being used for gambling purposes. We will examine this point first.
As to the pinball machines which were possessed and used as gambling devices, our question is whether the owners of the machines must have knowledge of their use for gambling purposes before a court can order abatement under the nuisance statutes. K.S.A. 22-3902 (3) provides:
“The petition shall describe any real estate alleged to be used or to have been used as a place where such common nuisance is or was maintained or permitted and shall identify the owner or person in charge of such real estate. It shall describe any effects, equipment, paraphernalia or other personal property designed for and used in such unlawful activity. It shall pray for the particular relief sought with respect to such property.”
In the present action there was an exhibit attached to the petition identifying the location of each pinball machine at the time it was seized, describing the particular machine, giving the name of the lessee, bailee or employee charged with a violation and setting forth the name and address of each owner. We find no provision in the abatement of nuisance statutes which requires proof of knowledge by the owner that the machines were being used for gambling purposes.
We have held that an action under the abatement of nuisance statutes (K.S.A. 22-3901, et seq.) is an action in rem and that failure to disclose the ownership of the property will not prevent the court from ordering destruction of the property if it is used for gambling purposes. See State, ex rel., v. Bissing, 210 Kan. 389, 502 P.2d 630, the “doggy bingo” case. In Bissing paraphernalia used in conducting “doggy bingo” was ordered destroyed since it was used for gambling purposes. Disposition was made under K.S.A. 22-2512 (4).
The question raised in our present case is different from that in Bissing. Here we are directly concerned with the rights of the owners under the due process clauses of the constitutions. (Amendments 5 and 14, United States Constitution, and Section 18, Bill of Rights, Constitution of the State of Kansas.) We are asked to determine if these pinball machines are subject to the protections afforded by the due process clauses in the constitutions when the lessor-owners were in no way involved in the gambling activities carried on by the lessees.
We have no cases under the present statutes where the question has been answered. However, this court has upheld similar forfeitures under prior statutes where constitutional challenges were made by innocent owners and mortgage holders of automobiles illegally used to transport liquor. In State v. Peterson, 107 Kan. 641, 193 Pac. 342, it was held:
“The provisions of section 4, chapter 217, Laws of 1919, are considered together with the legislative history of the act, and held not to show an intent to protect from forfeiture the interest of a holder in good faith of a mortgage on an automobile used in the transportation of intoxicating liquors and which has been declared a common nuisance and ordered sold.” (Syl. 1. See also, State v. Morris, 124 Kan. 143, 257 Pac. 731, and State v. Boucher, 126 Kan. 796, 271 Pac. 278.)
In Van Oster v. Kansas, 272 U.S. 465, 71 L.Ed. 354, 47 S.Ct. 133, 47 A.L.R. 1044, the Supreme Court of the United States upheld this court’s decision in State v. Brown, 119 Kan. 874, 241 Pac. 112, saying:
“It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment. [Citations omitted.]” (272 U.S. at 468.)
In the more recent case of Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 40 L.Ed.2d 452, 94 S.Ct. 2080, the United States Supreme Court reviewed the historical background underlying statutory forfeiture schemes applicable to property when such property is used in violation of law. The court held that the statutory forfeiture of a yacht used in transporting controlled substances in violation of law did not unconstitutionally deprive the owner-lessor of its property without just compensation when the owner voluntarily entrusted lessees with possession of the yacht. In that case the lessor-owner was in no way involved in the criminal enterprise and had no knowledge of the illegal use of the yacht.
The rationale of the foregoing cases is that property when used in violation of law is to be treated as the offender without regard to the owner’s conduct since that is the only adequate means of suppressing the offense or wrong and of preventing such illegal use of the property in the future.
Accordingly we hold the statutory forfeiture provisions contained in K.S.A. 22-3901, et seq., and in K.S.A. 22-2512 do not contravene the due process clauses of the federal and state constitutions when applied to pinball machines entrusted by innocent owners or lienors to others who use them in violation of the gambling laws of the state of Kansas. The state was not required to prove the owners of the machines had knowledge that the machines were being used for gambling purposes.
We turn now to the statutes authorizing forfeiture. K.S.A. 21-4302 sets forth gambling definitions, among which we find:
“(4) A ‘gambling device’ is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, or any token, chip, paper, receipt or other document which evidences, purports to evidence or is designed to evidence participation in a lottery or the making of a bet. The fact that the prize is not automatically paid by the device does ndt affect its character as a gambling device.”
K.S.A. 21-4307 states:
“Possession of a gambling device is knowingly possessing or having custody or control, as owner, lessee, agent, employee, bailee, or otherwise, of any gambling device.
“Possession of a gambling device is a class B misdemeanor.”
In our statute, K.S.A. 22-2512, which governs the search and seizure of things which have been used in the commission of crimes, including contraband, we find:
“Property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate, and shall be so kept as long as necessary for the purpose of being produced as evidence on any trial. . . . When property seized is no longer required as evidence, it shall be disposed of as follows: ... (4) Articles of contraband shall be destroyed, except that any such articles which may be capable of innocent use may in the discretion of the court be sold and the proceeds disposed of as provided in subsection (2). . . .” (Emphasis supplied.)
Subsection (2) referred to in the above quoted portion of the statute provides:
“. . . Money shall be restored to the owner unless it was contained in a slcft machine or otherwise used in unlawful gambling or lotteries, in which case it shall be forfeited, and shall be paid to the county treasurer. . . .” (Emphasis supplied.)
The above statute contains no definition of contraband. However, articles of contraband are generally understood to be goods which are illegal or prohibited; goods or merchandise the importation, exportation or sometimes possession of which is forbidden by law or treaty. (Webster’s Third New International Dictionary, unabridged.) In our present case gambling devices are contraband since their possession is forbidden by law. (K.S.A. 21-4307.)
In Grigsby v. Mitchum, 191 Kan. 293, 380 P.2d 363, cert. den. 375 U.S. 966, 11 L.Ed.2d 415, 84 S.Ct. 483, it is stated:
“Whether gambling takes place where pinball machines are kept depends primarily on the manner in which they are used, and not upon how they may be labeled or designed in their manufacture.” (p. 301.)
See also, State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P.2d 225, and State v. Waite, 156 Kan. 143, 131 P.2d 708.
The trial court found that the pinball machines in the present case are capable of innocent use and are not gambling devices per se. We agree. A pinball machine which is played by means of a spring-loaded plunger and metallic balls and which “pays off” only in free replays is capable of innocent use and is not a gambling device per se under the present statutes and case law of the state of Kansas. It is the actual use to which a pinball machine is put that determines whether it is possessed and used as a gambling device. (Grigsby v. Mitchum, supra.)
The state contends these pinball machines “are designed for and have been used in carrying on” unlawful activities and therefore under K.S.A. 22-3904 (2) an order to destroy these machines should have been issued. This court in State, ex rel., v. Bissing, supra, in considering the interplay of K.S.A. 22-3904 (2) and K.S.A. 22-2512, stated that the two statutes should be considered in pari materia, since they relate to the same subject matter, i.e., the disposition of property validly seized by an officer. K.S.A. 22-3904 (2) permits the court in abatement actions to order personal property designed for and used in carrying on certain unlawful activities to be publicly destroyed. The statute is permissive. K.S.A. 22-2512 (4) relating to articles of contraband provides for destruction, “except that any such articles which may be capable of innocent use may in the discretion of the court be sold”. So if the articles are contraband and are capable of innocent use the court may make a choice between an order of destruction and an order of sale. We see no conflict in the application of the two statutes in this case.
Six (6) of these pinball machines were used in such a way that they were possessed and used as gambling devices. Criminal convictions were obtained by the state as to these machines and they became contraband. Under the provisions of K.S.A. 22-2512 (4) it is directed that articles of contraband shall be destroyed but any such articles which are capable of innocent use may in the discretion of the court be sold and the proceeds paid to the county treasurer. The trial court found these machines were capable of innocent use. The discretion is placed with the trial court. Therefore, this case must be remanded to the trial court for further proceedings. With regard to the six (6) pinball machines on which convictions were obtained an order should be entered on remand either to destroy the machines or to sell the same and pay the proceeds to the county treasurer as provided in 22-2512 (4) and (2).
As to the twenty-five (25) pinball machines — the lessees or bailees were found not guilty of the gambling charges or the charges were dismissed. There was no evidence introduced in the abatement action to support the allegations by the state that the pinball machines were used for gambling purposes. The trial court was correct in its conclusion that pinball machines are not gambling devices per se. Since no evidence was before the trial court that they were used for gambling purposes they should be returned to the respective owners.
Even though a wrong reason may have been given by the trial court as a basis for its order directing return of these machines this does not render that portion of the judgment invalid or warrant reversal. See cases cited in 1-3 Hatcher’s Kansas Digest, Perm. Supp. (Revised Edition), Appeal and Error, Sec. 433.
Accordingly the judgment is affirmed in part, reversed in part and remanded for further proceedings. | [
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The opinion of the court was delivered by
Fromme, J.:
The State of Kansas appeals from an order dismissing criminal charges against Walter Jay Roseberry. Roseberry was charged under K.S.A. 21-3826 with feloniously introducing a drug, marihuana, into the Johnson county jail without the consent of the jailer.
The district court held that K.S.A. 21-3826 was invalid because it had been enacted by the legislature in violation of Article 2, Section 16, of the Constitution of the State of Kansas (K.S.A. Constitutions, 1976 Supp.). Article 2, Section 16, provides:
“No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. . . . The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
The statute, K.S.A. 21-3826, was enacted and appears in the Laws of 1970, Chapter 127 (House Bill No. 1853) with the following enacting clause:
“An Act amending the Kansas criminal code; concerning traffic in contraband in a penal institution; amending K.S.A. 1969 Supp. 21-3826 and repealing the existing section.” (Emphasis supplied.)
The statute provides:
“Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
“Traffic in contraband in a penal institution is a class E felony.” (K.S.A. 21-3826. Emphasis supplied.)
The defendant Roseberry successfully argued in the trial court that the use of the term “penal institutions” in the title, or enacting clause, is not broad enough to encompass the subject matter of the statute which includes both “state penal institutions” and “jails”. We do not agree.
The constitution should be liberally construed to give the law-making power ail freedom not positively prohibited, and an act is to be given liberal construction with all doubts resolved in favor of its constitutionality for the purpose of carrying into effect the will of the legislature. (Brickell v. Board of Education, 211 Kan. 905, 508 P.2d 996.) Provisions of Article 2, Section 16, of the Kansas Constitution are a mandate to the legislature that no bill enacted into law shall contain more than one subject and that subject must be clearly expressed in the title, but it is not necessary that the title be an abstract of the entire act. It is sufficient if the title indicates clearly the general scope of the act and if details in the body of the act are all germane to the subject expressed in the title. When attacked as violating the foregoing constitutional provision, a title of an act will be liberally construed. (Westover v. Schaffer, 205 Kan. 62, 468 P.2d 251; Brickell v. Board of Education, supra, Syl. 2.) The purpose of a title is to direct the attention to the contents of the bill or act so that members of the legislature and the public may be fairly informed as to what it embraces. (Westover v. Schaffer, supra; State v. Hruska, 219 Kan. 233, 243, 547 P.2d 732.)
A court should not declare a statute violative of Article 2, Section 16, of the Constitution of the State of Kansas unless invalidity is manifest. (State v. Morton, 158 Kan. 503, 148 P.2d 760.) The general term “penal institution” is not a term of art. It is general both in nature and meaning. “Penal” is commonly understood as referring to that which inflicts punishment. “Institution” is commonly used in referring to an establishment of a public nature and extends to buildings in use for the purpose of such institution. (Webster’s Third New International Dictionary Unabridged.) State penal institutions are generally under the control and supervision of the State Director of Penal Institutions. Local penal institutions, commonly referred to as jails, are generally under the control and supervision of a county or city officer referred to as a jailer. When the two words “penal institutions” are used without further qualification they refer to penal institutions under the supervision of both state and local authorities.
The title or enacting clause of House Bill No. 1853, Laws of 1970, Chapter 127 (K.S.A. 21-3826) is sufficiently broad to cover both state penal institutions and local penal institutions (jails), and is not violative of Article 2, Section 16, of the Constitution of the State of Kansas. The title is sufficient to call to the attention of the members of the legislature and the general public the subject matter dealt with in the body of the bill.
The defendant argued b"élow that the term “institution” as defined in Article 46 of K.S.A. (sentencing procedures) is limited to state institutions under the control and supervision of the Director of Penal Institutions. (K.S.A. 21-4602[5].) He contends this establishes the legislative meaning attributable to the term “penal institution”. We do not agree. K.S.A. 21-4602 specifically limits the definition set forth therein to words and terms “as used in this article.” The definition provided for Article 46 does not extend to other statutes not included in that article such as K.S.A. 21-3826.
Defendant argued below and renews his argument on appeal that K.S.A. 21-3826 is unconstitutional in that its enforcement results in a denial of equal protection of the law. He points out that a jailer who smuggles liquor into a jail is guilty of a misdemeanor under K.S.A. 19-1907, yet a prisoner who smuggles marihuana or liquor into a jail is guilty of a felony — the penalties being unequal in severity.
The two statutes proscribe two different crimes and any inequalities in the penalties assessed are a subject to be addressed by the legislature and not by the courts. The argument made was not accepted by the trial court and we find it without merit.
The order dismissing the charges against Walter Jay Roseberry' is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Gary F. Holmes, was convicted of unlawful possession of a firearm (K. S. A. 21-4204 [1] [b]). The facts are undisputed and are as follows: On May 28, 1975, in case number 29,651 in the district court of Shawnee county the defendant Holmes entered a plea of nolo contendere to the offense of attempted aggravated robbery (K. S. A. 21-3301 and K.S.A. 21-3427). The trial court immediately accepted the plea and found the defendant guilty of that felony. The district court thereupon continued the case for a presentence report and sentencing which was set for June 25, 1975.
During the interim period while defendant was awaiting sentence and specifically on June 15, 1975, the defendant Holmes had in his possession a .22-caliber pistol with a barrel less than 12 inches in length which weapon was discharged by the defendant causing the death of another person. On June 17, 1975, the defendant was charged in case number 29,859 with murder in the first degree (K. S. A. 21-3401) in count 1 and unlawful possession of a firearm (K. S. A. 21-4204 [1] [b]) in count 2. On September 24, 1975, the state amended count 1 to charge involuntary man slaughter (K. S. A. 21-3404) and the defendant entered his plea of guilty to the amended charge. This left for disposition count 2 charging unlawful possession of a firearm, the charge involved in this case. The defendant admitted that he had had possession of a firearm on June 15, 1975; his only defense was that at the time he possessed the firearm, he was not a person who had been previously convicted of a felony and hence was not guilty of unlawful possession of a firearm as a matter of law. It was the defendant’s position that the finding of guilty of attempted aggravated robbery by the court on May 28, 1975, in case number 29,651 did not constitute a prior conviction of a felony by virtue of the fact that sentence had not yet been imposed or final judgment entered in that case at the time the defendant possessed the firearm on June 15, 1975. The district court rejected this contention and ruled that the district court’s finding of guilty in the previous case on May 28,1975, constituted a prior conviction for the purpose of K. S. A. 21-4204 (1) (b). Following his conviction in this case the defendant appealed.
The sole issue presented for determination on this appeal is whether the defendant Holmes had the status of a convicted felon on June 15, 1975, when he possessed the firearm, since at that time he had not yet been sentenced for the offense of attempted aggravated robbery. We have concluded that the district court was correct in its ruling and that the judgment of the district court should be affirmed. It is the adjudication of guilt not the imposition of sentence which constitutes a “conviction” within the meaning of K. S. A. 21-4204 (1) (b). On March 28, 1975, in the attempted aggravated robbery case the defendant entered a plea of nolo contendere. While a plea of nolo contendere, unlike a plea of guilty, may not be used as an admission in any other action based on the same act, for all other purposes a conviction based on a plea of nolo contendere is just like any other conviction. (State v. Buggs, 219 Kan. 203, 547 P. 2d 720.) The term “conviction” is defined in K. S. A. 21-3110 (4) as follows:
“ ‘Conviction’ includes a judgment of guilt entered upon a plea of guilty.” The question then arises as to whether a judgment of guilt was entered upon the defendant’s plea of nolo contendere on March 28, 1975.
K. S. A. 22-3209 (2) provides that a plea of nolo contendere is a formal declaration that the defendant does not contest the charge and when a plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon. Under this statute when a court accepts a tendered plea of nolo contendere and adjudges a finding of guilt thereon, the defendant at that point has been convicted of the offense covered by the plea of nolo contendere.
K. S. A. 22-3210 sets forth certain conditions to be complied with before a plea of guilty or nolo contendere may be accepted by a trial court:
“22-3210. Plea of guilty or nolo contendere. Before or during trial a plea of guilty or nolo contendere may be accepted when:
“(1) The defendant or his counsel enters such plea in open court; and
“(2) In felony eases the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) In felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
“(4) The court is satisfied that there is a factual basis for the plea.
“(5) In felony cases the defendant must appear and plea personally and a record of all proceedings at the plea and entry of judgment thereon shall be made and a transcript thereof shall be prepared and filed with the other papers in the case.
“(6) In misdemeanor cases the court may allow the defendant to appear and plead by counsel.
“(7) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”
It is clear to us that once the statutory procedure has been complied with and the plea of guilty or nolo contendere has been accepted and a finding of guilty entered thereon, the defendant stands convicted of the offense unless the court thereafter sets aside the finding of guilty and permits the defendant to withdraw his plea of guilty or nolo contendere. It is undisputed in this case that the district court’s finding of guilty on defendant’s plea of nolo contendere on May 28, 1975, has never been set aside. Since that date the defendant has had the status of a convicted felon.
In support of this conclusion we note a number of sections of the criminal code and the code of criminal procedure where the legislature has declared that a defendant has been convicted of a crime even though sentence has not yet been imposed. Examples are K. S. A. 21-4503, 21-4504, 21-4604, 22-2804, and 22-3429. Each of these statutes refers to a person who has been convicted of a crime prior to the imposition of sentence on such conviction.
The purpose behind K. S. A. 21-4204. (1) (b) was to keep certain dangerous weapons out of the hands of convicted felons. The legislature determined that persons convicted of a felony are a danger to society and should not have in their possession certain types of weapons. (State v. Moffitt, 199 Kan. 514, 532, 431 P. 2d 879; State v. Goodseal, 220 Kan. 487, 493, 553 P. 2d 279.) To achieve the legislative purpose K. S. A. 21-4204 (1) (b) should be held applicable following a conviction of a felony although sentence has not yet been imposed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.: •
This was an action by the W. T. Rawleigh Company to recover $1,835.81 for merchandise sold by it to Floyd C. Holt, the payment for which was guaranteed by Neil McEachern and C. C. Iddings. The verdict and judgment were in favor of the defendants, and plaintiff appeals.
The merchandise was furnished to Holt, designated as the buyer, under a general contract that plaintiff, named the seller, would sell merchandise to him at current wholesale prices, shipments to be made as orders were made by Holt. He was to pay for the goods purchased on the 15th of each month, in which event he was to receive a discount of three per cent from invoice prices. It was a part of the general agreement that plaintiff should take back unsold goods .that were in good condition and credit the value of the same to Holt. There was a stipulation that plaintiff, at its option, would sell Holt the wagon for use in the sale and distribution of goods. With each contract was a guaranty agreement under which the guarantors bound themselves for the money that might become due from Holt for merchandise purchased, and there was a provision, too, that the guaranty should be effective without instituting a suit against Holt or -exhausting plaintiff’s remedies against him for amounts overdue. Purchases of goods were made by Holt from time to time from March, 1917, to August, 1920, during which time Holt had paid over $3,000, but there was still due from him to the plaintiff $1,835.81. He ceased doing business and left the community. When the action was brought the plaintiff was unable to obtain service upon him and no defense in his behalf was made. The case proceeded upon the guaranties assumed by McEachern and Iddings, and their principal defense was that certain extracts included in the merchandise, for the price of which a recovery was sought, contained alcohol in such quantities as to make the sale thereof a violation of the prohibitory liquor law. The claim was that plaintiff necessarily knew that the extracts furnished upon the order of Holt were intoxicating, because some of them contained from 80 to 85 per cent of alcohol, and the prices paid for them, as well as the quantities purchased, indicated plainly enough that they were bought for use as intoxicating beverages. The alcohol extracts illegally sold were confined to peppermint and lemon extracts, and with these were sold on various orders, a large number of articles, among which were soaps, oils, spices, ointments, salves, medicines, pills and powders, toothbrushes, almanacs and books, and many other things which did not fall within the ban of illegality. While Holt had given over sixty orders for merchandise which was transferred to plaintiff in an equal number of shipments, and although most of these invoices did not embrace any of the intoxicating extracts, the court proceeded on the theory that if the two extracts named were intoxicating in character and plaintiff knew that they were being sold by Holt, the plaintiff could not recover for any of the merchandise sold. The defendant asked for an instruction to the effect that plaintiff was entitled at least to recover on all sales of merchandise which did not include the intoxicating extracts, but this was refused. In these rulings there was error. It is true that where there is a single indivisible contract, as, for instance, a promissory note, and the whole or a part of the consideration is illegal, the contract is tainted so that it cannot be used as a basis of an action. (Gerlach v. Skinner, 34 Kan. 86, 8 Pac. 257; The State v. Wilson, 73 Kan. 343, 84 Pac. 737.) These cases, however, recognize that if the contract covers several parts, some of which are legal and some illegal, and the legal parts of the goods are severable, a recovery may be had to the extent of that which is legal. It is true that there was a general agreement between the parties establishing relations, providing for future sales at wholesale prices, fixing times of settlement, and providing for a guaranty of payments; but this preliminary arrangement contemplated that actual sales should thereafter be made or not, at the option of the seller. The orders for and the billing and shipment of goods were divisible transactions, and these included sales of distinct articles at affixed prices. The sales by plaintiff, which ran through a period of about three years, covered more than 100 different articles aside from the two which were intoxicating in character. Of the sixty orders and invoices it appears that thirty-eight of them included neither of the two alcoholic extracts. The itemized bills tend to show that of all the merchandise shipped to Holt during the entire period, and which amounted to $5,155.02, less than $330 was for the illegal extracts. The condemned articles are separately itemized in the invoices of the goods sold and the prices of each item distinctly stated, so that there is no difficulty in separating the legal from the illegal. It was held in Henshaw v. Smith, 102 Kan. 599, 171 Pac. 616, that:
“If a contract contains provisions some of which are valid and some of which are invalid, and the lawful matter can be readily severed from that which is unlawful, the lawful portion of the contract will be upheld.” (Syl. If 1.)
The authorities sustaining this view are grouped in a note found in 117 A. R. 498; see, also, 13 C. J. 515.
Defendants speak of a third article named “dement,” which was included in the sale, and is claimed to be illegal because of alcoholic content, but we are unable to find anything in the evidence showing it to be intoxicating. However, on another trial an inquiry may be made as to the nature of the article mentioned and whether a sale of the same was illegal.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from the following order made on the hearing of a motion for a new trial:
“1. The case is hereby rereferred to the master with specific directions to him to hear and consider further testimony from either or both of the parties hereto relative to the cost and expense of the drilling of what is known as Stout well No. 2, being the first well drilled with the second string of tools, and to ascertain what the actual cost of said well was and to amend his finding herein in conformity with whatever shall be shown to be the cost thereof.
“2. The court, not being satisfied with the conclusion of the master relative to the twenty-two days on Stout No. 4, directs the master to make a further report thereon, and in doing so" to hear and consider other testimony relative thereto if he desires, it being the conclusion of the court that plaintiff should, unless there is good reason to the contrary, recover whatever actual outlay he was occasioned by reason of that twenty-two days’ delay, and if there is good reason to the contrary to report such reason.”
The plaintiff sued to recover $18,714.50 on account of work which he performed for the defendant in drilling oil and gas wells in Butler county. A referee was appointed to take the testimony and report findings of fact and conclusions of law. Testimony was taken and findings of fact and conclusions of law were reported by the referee. On a motion to confirm the report, it was ordered by the court and agreed to by the attorneys for the parties that the matter of passing on the motion to confirm the referee’s report be considered at a future date to be agreed upon, and be passed on by the referee, whose ruling on the motion should be of the same validity and effect as though made by the court. Later the referee modified his findings and made an additional report and rendered judgment in favor of the plaintiff. Within three days thereafter a motion for a new trial was filed by the plaintiff. On that motion the order appealed from was made.
To show the dates on which these several things occurred we quote from the appellants’ brief:
“Chronologically, the following are the events necessary to have in mind:
“June 27, 1923, report of referee filed.
“June 30, 1923, motion by appellants to confirm report of referee.
“June 30, 1923, limited hearing on motion to confirm report.
“July 25, 1923, appellee files motion to correct and modify findings of fact and conclusions of law.
“July 25, 1923, confirmation of referee’s report, and Judgment rendered.
“July 27, 1923, motion for a new trial filed by appellee.”
The order appealed from was made on October 17,1923.
The defendants argue that the plaintiff should have moved for a new trial within three days after the first report of the referee was filed, which was on June 27, 1923. If that had been the final and only report made by the referee the contention of the defendant would have merit, but on the motion to confirm that report there was another submission to the referee, and on a second report being made and the attention of the court being called thereto by a motion for a new trial, another submission to the referee was made, from which submission this appeal is taken.
By section 20-1013 of the Revised Statutes, the district court of Butler county begins on the first Monday in March, and the second Monday in June and November. All the matters on which the complaint of the defendants is based occurred at the June, 1923, term of the district court of that county. Three times the court submitted this matter to the referee. Until the final report of the referee had been made the time for filing a motion for a new trial had not become definitely fixed, although it would have been proper to have filed such a motion within three days after each report was filed. This court has said that during the term at which a cause is tried the trial court has control over any judgment rendered by him and may modify or change the same. (Salt Co. v. Baldridge, 53 Kan. 522, 36 Pac. 1005; Railway Co. v. Berry, 79 Kan. 19, 98 Kan. 204; Spottsville v. Cement Co., 94 Kan. 258, 146 Pac. 356; The State, ex rel., v. Langmade, 101 Kan. 814, 168 Pac. 847; Karr v. Moffett, 105 Kan. 692, 694, 185 Pac. 890; Moore v. McPherson, 106 Kan. 268, 274, 187 Pac. 884; Sissell v. Serum Co., 108 Kan. 52, 55, 194 Pac. 311.) The present case comes within that rule. The district court had authority to refer the matter in controversy to a referee, and on a report being made to again refer the matter to him, and upon a second report being made to again refer the matter with or without a motion or application therefor.
No error has been shown; the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.;
Robert F. Young and his wife brought this action, asking the cancellation of an oil and gas lease given by them on December 7, 1920, owners of which were represented by the Arkansas Fuel Oil Company. Judgment for the defendants was rendered on the pleadings, and the plaintiffs appeal.
By its terms the lease was to end December 7,1921, if a well were not begun, unless the lessee should by that time pay to the plaintiffs, or to their credit in the Howard National Bank, of Howard, Kan., $160, which should operate as a rental and cover the privilege of deferring the commencement of a well for twelve months, like payments annually to have a like effect. No well has been begun on the tract covered by this lease, although at a cost of some $80,000 the defendants have drilled five test wells on tracts which they speak of as in the same block of acreage, four of which are producing gas wells. The plaintiffs’ claim of cancellation is based upon the failure of the defendants to make the $160 payment due December 7, 1922. The defendants concede the nonpayment, but set out facts which they rely upon as showing such a good-faith effort to pay as to justify the court refusing to cancel the lease. The answer contains this language, to which no denial was made:
“Defendants, further answering, say that on the 21st day of November, 1922, the defendant, Arkansas Fuel Oil Company, mailed from its office at Pittsburgh, Pennsylvania, properly inclosed in an envelope, postage prepaid, with return card printed on the same, and properly addressed to the Howard National Bank, Howard, Kansas, a check in the sum of one hundred sixty ($160) dollars for deposit in said Howard National Bank of Howard, Kansas, to the credit of the plaintiff, Robert F. Young, in payment of the rentals due December 7, 1922, and which the plaintiffs allege in their petition was not tendered and paid in accordance with the terms of said lease; that in due course of mail such envelope and letter containing said check should have arrived in Howard, Kansas, not later than November 24, 1922, but which check was never received by said bank. That said rentals under said lease were not due until the 7th day of December, 1922, and that said check was mailed in sufficient time to have reached Howard, Kansas, before the 7th day of December, 1922, and that defendants had every reason to believe that said check had reached its destination, as said letter, with check enclosed and return card printed on the same, was never returned to the sender; and the first information that defendants had that said bank claimed the check had not reached it was on or about February 16, 1923, after the defendants received notice that the plaintiffs intended to declare forfeiture of said lease, and after they had wired their office at Eureka, Kansas, of the notice they had received, and informed the Eureka office that check mailed on November 21, and for the Eureka office to ascertain from said Howard National Bank whether or not they were holding rental, and why. And immediately thereafter a duplicate check in the sum of one hundred sixty ($160) dollars was sent and deposited in the Howard National Bank for the credit of the plaintiffs.
“Further answering, these defendants say, as already set forth, it was their purpose and intention to pay said rentals in strict conformity to the provisions of said lease. . . . That there was no change of any kind or character in the condition of the parties as a result of said accident and delay in the depositing of said rentals; that there was nothing which in any way affected the value of the lease involved herein, or which in any way preju diced the title or statuts of the plaintiffs in reference to the subject matter of this suit.”
The cancellation of a lease of the character here involved for a failure to make the annual payment is doubtless not as abhorrent to equity as an ordinary forfeiture. (Gasaway v. Teichgraeber, 107 Kan. 340, 191 Pac. 282.) This court has held, however, that cancellation may be refused in such a situation’ as that here presented, where the default is unintentional and excusable and the lessee had expended considerable sums in developing tracts in the vicinity. (Kays v. Little, 103 Kan. 461, 175 Pac. 149.) In the case just cited the payment was due at Eureka December 2. A check was mailed at Bartlesville, Okla., on November 27, in abundant time, according to the usual course of business, but for some unexplained reason did not arrive until December 5. The principal difference between that case and this is that here the check, which was sent in ample time, never did reach its destination. It seems strange that the company should not have learned of the miscarriage of the letter for some two months, but inasmuch as it did not, no intentional fault can be charged to it, and the ruling of the trial court is affirmed, as falling within the principle of the Kays-Little case. Cases in which cancellation has been ordered are readily distinguishable. In one the delay was but for a single day, or perhaps two days, but the lessee did not attempt to make the payment within the prescribed time. (Gasaway v. Teichgraeber, supra.) In another the delay was for ten days, and the only excuse offered was that the lessees did not construe the lease as requiring payment in advance. (Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527.) In an earlier case the treasurer of the lessee company was the cashier of the bank in which a deposit was to be made to the credit of the lessor. A check was drawn payable to the lessor and was in the hands of the treasurer-cashier, but it was never in fact credited to the payee, and although he called on the bank three or four times within the two weeks following the maturity of the payment and had his balance stated, he was not given any information of its existence. (Chapple v. Brick Co., 70 Kan. 723, 79 Pac. 666.)
The suggestion is made by the plaintiffs that the answer fails to show who drew the check, or upon what bank it was drawn, or whether there were funds on deposit to meet it. In the absence of a motion to make the language of the pleading more definite in that regard, it must be presumed that it was a sufficient check for the purpose intended. It is likewise suggested, but we think without sufficient basis, that the allegation that the check was mailed does not imply that it reached the custody of the government service.
The plaintiffs complain of the overruling of their motion to strike from the answer matter relating to the development by the defendants of neighboring tracts forming a part of the block handled by them. Inasmuch as the allegations of the answer which are not denied are held to state a defense, the presence of immaterial matter could not well be prejudicial; but the work done by the defendants in developing tracts in the vicinity has some bearing upon the equities of the case.
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The opinion of the court was delivered by
Harvey, J.:
John Levin and his son, Will Levin, were found guilty of violating the intoxicating liquor law on two counts. One count charged the manufacture of intoxicating liquor and the other count charged the possession of a still. As to Will, the court set aside the verdict as to the possession of a still, as-not being supported by the evidence. Verdicts on the other counts were approved and sentences imposed. Both have appealed. On behalf of Will Levin, it is contended that the evidence is not sufficient to support the verdict on the count charging him with the manufacture of intoxicating liquor. On behalf of John Levin, it is contended there should be a new trial because of misconduct of the jury.
The evidence, in substance, was as follows; John Levin, a man of foreign birth, lived alone on his farm; the son, Will, was married and lived about half a mile north on a farm adjoining that of his father’s. Will kept his cattle in the sheds which were near the house on his father’s place; used the pasture on his father’s land, and perhaps farmed the tillable land thereon. Will Levin had a young man, Fred Sparks, working for him by the month, and either he or Sparks was at the John Levin place every morning and evening, and perhaps oftener. Sparks had formerly worked for John Levin and was familiar with both premises.
On the day of the arrest, the sheriff and other officers, with a search warrant for both premises, went first to the home of Will Levin. There they found Will Levin and his wife, Fred Sparks, and Fred Jenson. They searched the premises and in the henhouse found two barrels. “These barrels smelled sour and had the appearance of having had mash in them.” After searching about the place and finding nothing else that aroused their suspicions, they noticed that Sparks was no longer there. They went out to the road, then south half a mile and into the John Levin place. Just before they got to the John Levin place they saw Sparks get on a horse there and ride rapidly north toward the Will Levin place. At the John Levin place the officers found', about twenty feet east of the house, a wet spot on the ground six or eight feet in diameter where a quantity of mash had recently been poured; near the house was a steel barrel which had recently had mash in it, and another such barrel was in a water tank not far from the house. In the house there was an oven built of brick, stone and mortar on the wood floor. It was about two feet high and of such size that the end of a steel barrel fitted the top of it. In the oven was an oil burner, which was connected with a fuel oil barrel. There was also in the house a galvanized tub which had recently had mash in it and a large wet spot on the floor where mash had recently been emptied, some of which had run through onto the ground outside. About 100 yards from the house in the field was found a coil of copper tubing, about eight inches in diameter and having six coils. This tubing fitted a connection on the barrel found near the house, which in turn fitted the top of the oven. When assembled the articles found made a complete still. It seemed clear that the still had been dissembled and the mash emptied from the barrel and the tub shortly before the officers arrived. The jury might properly conclude that Will Levin sent his hired man, Sparks, to do this or have John Levin do it before the officers could reach there.
Some months before this, Will Levin had been charged with violating the liquor law and had pleaded guilty. He testified in this case, but made no explanation of how the two barrels, which had recently contained mash, came to be in his henhouse. Neither did he claim that they had been used for mixing feed or for any other legitimate purpose.
As to the sufficiency of circumstantial evidence to sustain a verdict, it was held in The State v. Brizendine, 114 Kan. 699, 220 Pac. 174:
“When considering on appeal the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the jury and the trial court, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt.” (Syl. ¶ 1.)
Applying the rule just stated, the evidence was sufficient to sustain the verdict as to Will Levin. ,
As to John Levin, it is at least tacitly conceded that the evidence was sufficient to sustain the verdict on both counts, but it is contended that there should be a new trial because of misconduct of the jury. This question arises as follows:
The coil and the barrel which fitted the oven, with their connections, and perhaps some other parts of the still, were taken into possession by the sheriff and were offered in evidence. While the jurors were considering on their verdict they requested the court to send the exhibits to the jury room. The court, with the consent of the county attorney and Mr. Wilson, one of the attorneys for defendant (Mr. Simmons, of counsel for defendant, was not present) sent the exhibits to the jury room. The jury made a more thorough examination of the exhibits than was made when they were offered in evidence. One of the jurors put the end of the coil to his mouth and "blowed out half a pint of pretty good looking stuff.” They also examined the barrel. “We turned it up and got some stuff out of it. . . . It had quite a smell to it. It smelled like mash had been in it. It had the same smell that we got out of the coil.” Appellant complains very bitterly of this conduct of the jury, and argues that the exhibits should not have been sent to the jury and that the jury had no right to make an independent test of the exhibits, differing in character from that made when they were offered in evidence, or from any testimony pertaining to them.
Obviously the object of sending exhibits to the jury is to enable the jurors to make a more thorough examination of them than it was possible to make when the exhibits were offered in evidence. When a party to an action consents to the sending of exhibits to the jury, it is tantamount to an invitation to the jury on his part to make as thorough an examination of such exhibits as they desire. He is not, therefore, in a position to complain if such “more thorough” examination is made. Neither can he complain, in such a case, if such “more thorough” examination tends to strengthen the evidence against him.
The statute provides that a new trial may be granted when the jury has received evidence, papers or documents not authorized by the court. (R. S. 62-1603.) Here the court authorized the jury to examine the exhibits, and both the state and defendant consented thereto; hence there can be no error in this respect. As bearing on the question, see The State v. Watson, 92 Kan. 983, 142 Pac. 956; The State v. Shoemaker, 112 Kan. 805, 212 Pac. 890.
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The opinion of the court was delivered by
Johnston, C. J.:
The state has appealed from an order requiring the county attorney to turn over to counsel for the defendant for inspection or an opportunity to obtain copies of all letters written by defendant to her husband and also to one John Botts, which are in the possession of the county attorney and which he intends to use in evidence on the trial of defendant, who is charged with the murder of her husband.
The defendant contends that the order is warranted by R. S. 60-2850, a provision of the civil code authorizing an inspection or permission to take copies of books, papers or documents that are in the possession of an adverse party, and that if such adverse party fails to comply with an order of the court in this respect the court may exclude the book, paper or document from being given in evi dence. The theory of the defendant is that this section of civil procedure is made applicable in criminal cases by the provision of the criminal code which provides:
“The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.” (R. S. 62-1413.)
Unless the quoted provision is broad enough to adopt and make the rule of procedure civil as to the inspection of papers and documents a part of the criminal code, or applicable to it, the demand of the defendant was not an enforceable one. The legislature may of course enact legislation by reference, and has sufficient authority to make a provision of the civil code applicable in criminal cases. While separate codes are provided for civil and criminal cases, the legislature has provided that in a number of instances the provisions of the civil code are borrowed and made applicable to criminal cases, of which the granting of continuances and also the procedure in obtaining new trial are illustrations. (R. S. 62-1413; The State v. Wellman, 102 Kan. 503, 170 Pac. 1052.)
Counsel for the state insist that the adoption section, R. S. 62-1413, is so restricted in its terms as to exclude the right to inspection as given in R. S. 60-2850. The adoption section specifically provides that the provision in civil procedure shall apply to compelling the attendance and testimony of witnesses, their examination, including the administration of oaths and affirmations and to proceedings as for contempt, to enforce the remedies and protect the rights of parties so far as they are applicable to criminal proceedings. Does this enumeration of subjects and occasions for the application of the rule of civil procedure include the obtaining of an inspection and copies of books, papers and documents? The court is of opinion that the adoption section does not cover or include the provision of the civil code relating to inspection. It is a general rule that the specification of certain procedural steps carries the implication that all others are excluded. The legislature has said that the civil provisions relating to the attedance, examination and testimony of witnesses are applicable in criminal cases, and this raises the presumption that no other kinds of evidence such as books, papers and documents, or steps for the inspection or production of the same, were within the intention of the legislature. The proceedings for contempt mentioned in the adoption section do not cover the matter of inspection. The view of the court is that the clause, “to enforce the remedies and protect the rights of parties,” has reference to the antecedent phrase relating to proceedings for contempt. Transposing it the legislature has in effect said that the rule of civil procedure shall be extended and applied to contempt proceedings brought to enforce the remedies and protect the rights of parties in criminal cases. The enumerated instances in the adoption statute, it is held, excludes all unspecified instances, and since there is no right for an inspection of the letters in question except by virtue of express authorization by the legislature, and since none has been granted in the criminal code, either directly or by reference to the civil code, there was no power in the court to make the order requiring* the county attorney to turn over the letters for inspection, and the order is therefore reversed. | [
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MEMORANDUM DECISIONS.
The opinion of the court was delivered by
Marshall, J.:
In case No. 26,044, the Kansas Compensation Board appeals from a judgment allowing compensation to Nina Viva Lord for services rendered by her as a student nurse at Fort Riley during the World War. She was in that service from October 15, 1918, to March 23, 1919, and was relieved from duty by order from the surgeon-general dated April 14,1919.
The board contends that she did not render any service in the army, navy, or marine corps. With that contention the court does not agree. This case is controlled by The State, ex rel., v. Davis, 114 Kan. 270, 217 Pac. 905, where this court said that “members of officers’ training camps conducted after the declaration of war, who afterwards became veterans of the World War, are entitled to compensation during the time they served in such training camps.”
We quote from the brief of this appellee as follows:
“The condition of this appellee [Nina Viva Lord] was almost exactly the same as the condition of student officers in these training camps. She volunteered her services as a student nurse with the hope and expectation that at the end of her student service she would be given a commission in the army nurse corps. . . . When she entered the military service she surrendered her right of choice as to hours of work and living conditions and placed herself under the absolute regulations of the army. Her conduct was subject to restriction and she suffered at the hands of a military tribunal should she commit an infraction against the regulations imposed upon her. From the moment she entered her post of duty until she was given a certificate in lieu of discharge there was not a single m,oment of her life that was not under the absolute and direct control of the United States government. . . .
“Ship builders, carpenters at cantonments and clerks in the various departments . . . were at all times living under civil conditions. Except while at work they were free to come and go as they pleased; their mode and manner of dress was not prescribed; they chose their living quarters and provided their own‘table. There was nothing in their relation with the government except the common, eveiy-day relation of employer and employee. They could resign from their position at any instant they desired. If they committed any crime, it was a crime under the civil laws and they were subject to trial by civil courts.
“. . . She [Nina Viva Lord] was a soldier, and her entire life was subject to military regulation and discipline. If news had reached the cantonment at Funston that a bombing war was eminent, every carpenter, every plumber and every laborer was at liberty to quit his position and take up work elsewhere, but this appellee could no more have left her post of duty at the hospital at Riley under those conditions .... [than any soldier] could have gone to his commanding officer and said, ‘I do not like the shell and shrapnel. I am going home. Here is my helmet and gas mask. Good-by.’ ”
The judgment is affirmed.
In case No. 26,027, the Kansas Compensation Board appeals from a judgment declaring that Hazel E. Brainine Whitmore is entitled to compensation for services rendered by her as a dietitian at Camp Beauregard, La. This case is very similar to the one just decided, but differs in this, that the evidence shows that Hazel E. Branine Whitmore did render service in the army as a dietitian in a military hospital at Camp Beauregard, La.
It follows that the judgment is affirmed.
In case No. 25,783, Reed T. .Schrontz appeals from a judgment of the district court denying to him compensation under the Kansas soldiers’ compensation law. The question turned on his residence at the time of his induction into the army. There was evidence which tended to prove that at that time he was a resident of Missouri, and there was evidence which tended to prove that he was then a resident of Kansas. The trial court on conflicting evidence determined that Reed T. Schrontz was not a resident of Kansas at the time he entered the military service of the United States for the World War. Under repeated declarations of this court, that conclusion cannot be disturbed.
The judgment is affirmed.
In case No. 25,831, Presley B. Hill appeals from a judgment of the district court denying to him compensation under the Kansas soldiers’ compensation law. His right to compensation turned on the question of his residence at the time of his enlistment in the United States army at Hutchinson, Kan. There was evidence which tended to show that at the time of his enlistment he was a resident of Michigan, and there was evidence which tended to show that he was then a resident of Kansas. On that evidence the court found that Presley B. Hill was not a resident of Kansas at the time he entered the United States army for service in the World War.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The theory of Kansas law is that those admitted to practice law and who continue in it shall be persons who obey the law and maintain a high standard of personal and professional integrity. In a statute relating to the admission of attorneys to practice law, and to the disbarment and suspension of those who may be guilty of misconduct, there is a provision to the effect that upon the conviction of a lawyer of a crime involving moral turpitude and a record of it has been transmitted to this court, it shall enter an order of disbarment. J. F. Sanford, a practicing attorney who had been duly admitted, was charged with having intoxicating liquor in his possession in violation of a city ordinance and was convicted in the police court of the city of Independence. An appeal from the conviction was taken to the district court, and the trial there resulted in a finding of guilty. The sentence imposed was that he should pay a fine to the city of $100 and be imprisoned in the city jail for a period of thirty days. The fine was paid, the imprisonment suffered, and the penalties fully carried out. Thereupon the clerk of the court transmitted a certified copy of the record to this court on the theory that it fell within the statutory provisions mentioned. The section reads:
•‘That in the case of the conviction of an attorney at law, who has been admitted to the bar of this state, of a felony or of a misdemeanor involving moral turpitude, the clerk of the court in which such conviction is had must within thirty days thereafter transmit to the supreme court a certified copy of the record of conviction, and the supreme court upon receipt of such record must enter an order disbarring such attorney. Upon reversal of such conviction, or pardon by the governor, the supreme court shall have the power to vacate such order of disbarment.” (R. S. 7-110.)
Does an entry of the record of conviction operate to disbar the defendant, and that inquiry involves the question whether the conviction for a violation of a city ordinance falls within the statute, and also whether such a violation is a felony or misdemeanor involving moral turpitude within the meaning of that statute. It may be noted that the conviction of itself operates as a disbarment, and has been characterized as a legislative rather than a judicial disbarment. (In re Anderson, 101 Kan. 759, 168 pac. 868.) Of course the convicted attorney is entitled to show if he can that the judgment of conviction was not rendered by a court of record, and that the offense itself was not within the statute. This the respondent has undertaken to do, and he contends that the conviction of an attorney for the violation of a municipal ordinance does not fall within the purview of the governing statute. One ground is that the respondent was convicted in a police court, not a court of record, while the statute appears to contemplate that the conviction shall be in a court of record. In In re Anderson, supra, it was held that a justice of the peace can not be regarded as a court of record, and no more can it be said that a police court is a court of record. As to a justice of the peace it was said:
“He lias no clerk, is not his own clerk, and his docket entries do not have the quality of entries on the journal of a court of record. (In re Baum, 61 Kan. 117, 58 Pac. 958). Therefore the statute does not sustain the proceeding.” (p. 759.)
It is true that the judgment finally entered against the respondent was rendered by the district court on an appeal from the police court. • In the district court the case, however, was tried as a violation of a city ordinance, and while that court was trying the case it was acting as a police judge, and was required to try the case in the same manner it should have been tried before the police judge. (City of Solomon v. Hughes, 24 Kan. 211; Smith v. City of Emporia, 27 Kan. 528; Watt v. Jones, 60 Kan. 201, 56 Pac. 16.) Its sentence as imposed was essentially a judgment of the police judge, and cannot be treated as one rendered by a court of record within the meaning of the statute. Again, the statutory provision that the receipt of a record of a conviction of crimes involving moral turpitude shall ipso facto work a disbarment, manifestly refers to violations of state laws. Other statutes authorize city authorities to enact ordinances, but nothing in the statute under consideration refers to city ordinances passed under the delegated power, nor to any violations outside of the crimes act enacted by the legislature. In one sense the violation of an ordinance is a misdemeanor in that it is criminal in its nature and inferior to a felony, but the term as used in this statute means the violation of a law enacted by the legislature in which the punishment is prescribed. A misdemeanor is generally held to be an act in violation of a state law, punishable by fine or imprisonment in the county jail or both, and wherein the punishment is fixed in the act. (5 Words and Phrases, 4533.) Here the punishment for the offense was fixed by a city in an ordinance and not by the legislature in a statute, and the imprisonment that was adjudged by the district court was confinement in the city jail. Besides the judgment required the fine to be paid to the city, instead of to the county treasurer, as in prosecutions brought by the state. We think the statute does not refer to offenses against a city, but has references to offenses against the state prosecuted in its own name in a court of record.
Having reached this conclusion, it is unnecessary to determine other questions discussed by counsel. It follows that an order of disbarment will not be entered. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages caused by an assault and battery committed on him by the defendant. Judgment was rendered in favor of the defendant, and plaintiff appeals.
There have been two trials. On the first trial, the jury returned a verdict in favor of the plaintiff for $100, $75 actual damages and $25 punitive damages. The plaintiff and the defendant each filed a motion for a new trial.- Plaintiff’s-motion alleged erroneous rulings of the court, erroneous instructions given by the court, misconduct of counsel for the defendant, and that the verdict was contrary to law and the evidence in that it was inadequate. The record recites that — ■
“The court having heard the arguments of counsel representing both parties, and being duly advised in the premises, finds that said motion for new trial so filed with [by] the plaintiff should be sustained, and it is by the court so ordered.”
Subsequently the case was again tried, which resulted in a verdict in favor of the defendant, and judgment was rendered accordingly.
The plaintiff argues that the court committed error in granting a new trial on all the issues, and that a new trial should have been granted, only as to the amount of damages sustained by the plaintiff, for the reason that the only matter urged in support of his motion for a new trial was the amount of the verdict. The record of the court in granting the new trial has already been quoted. The plaintiff’s abstract contains the following:
“In due time said motion [of plaintiff] for a new trial was argued to the court, and on August 4, 1923, said motion for a new trial was by the court sustained, the court stating that the verdict was inadequate and not commensurate with the damage done, if any was done at all, and that in his opinion instruction No. 16 was erroneous, and that this might have had its effect in the jury’s arriving at the amount of damage that they did, and for that reason he would grant a new trial, otherwise he would be inclined to give the defendant the privilege of accepting a verdict for a larger amount or a new trial.”
Instruction No. 16 given at the trial was as follows:
“16. In assessing the amount of damage that the plaintiff has sustained, if any, you may and should take into consideration what was done by the plaintiff or by his parents immediately after the discovery of the fact that he was injured, with reference to securing medical aid and effecting a cure of the injury or a reduction in the injury by such treatment. The duty would be upon the parents of this boy, and if you find that he is in possession of all his faculties and was of sufficient age to act for himself, to secure prompt and as efficient aid as is consistent under the circumstances to effect a cure, if one is possible, or to reduce the amount of damage that may have resulted from the injury that was inflicted. In assembling the damage, if you assess any, what was done, or what the parties failed to do that they should have done, may be taken into consideration in mitigation of damage, if you think they are entitled to it.”
Instruction No. 16 was erroneous. The plaintiff was not responsible for the neglect of his parents to take such steps as might have been necessary to mitigate the damages caused by the defendant. If the plaintiff did all he could to mitigate the damages sustained by him, then the defendant was responsible for the remainder, if he were liable at all. The court was justified in setting aside the verdict and granting a new trial because of the error in the instruction, and he was justified in setting aside the verdict and granting a new trial because of the amount of the verdict.
Section 60-3004 of the Revised Statutes contemplates that a new trial may be granted as to one or more issues and refused as to others, but this court has often said that trial courts are invested with very large and extended discretion in the granting of new trials. (Atyeo v. Kelsey, 13 Kan. 212, 217; City of Sedan v. Church, 29 Kan. 190; Barney v. Dudley, 40 Kan. 247, 19 Pac. 550; Betz v. Land Co., 46 Kan. 45, 46, 26 Pac. 456; Express Co. v. Foley, 46 Kan. 457, 464, 26 Pac. 665; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6, 8, 32 Pac. 630; and Insurance Co. v. Evans, 64 Kan. 770, 772, 68 Pac. 623.) If a trial court has discretion in granting new trials, it follows that the court has like discretion in determining whether the new trial shall be granted as to only part of the issues. The court in passing on the motion for a new trial expressed its dissatisfaction with the verdict of the jury.
In Klopfenstein v. Traction Co., 109 Kan. 351, 354, 198 Pac. 930, this court said:
“By a wilderness of decisions covering half a century, the rule is settled in this state that ordinarily the trial court, when dissatisfied with a verdict, is in duty bound to set it aside.”
When the new trial was granted, it was the duty of the court to determine what issues should be tried, and his determination of that question will not be reversed in this court unless there was an abuse of discretion in granting a new trial as to all issues. No abuse is shown.
The plaintiff cites Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027, where this court reversed a judgment and remanded the case to the district court with directions to ascertain the amount of damages sustained by the plaintiff; but on a motion for a modification of the judgment, this court ordered that the case be remanded for a new trial as to all issues.
No error has been shown; the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from an award of alimony to a wife who was granted a divorce.
When the divorce was granted the parties had certain real and personal property, which the court divided between them as equally as could be done. The real estate consisted of three tracts of city property. Plaintiff was given one tract, worth $4,000 and free of incumbrance. Defendant was given the remainder of the real estate. One tract has been sold on contract calling for the sum of $3,300, payable in installments. The other tract is worth $4,000, but is subject to a mortgage of $3,000, which defendant was required to pay. Plaintiff was given the household goods, including a piano, and defendant was given the tools of his trade and a Ford sedan, 1922 model, substantially equal in value to the household goods. The parties have one child, a daughter, who was past seventeen years of age when the decree was rendered, and who was placed in custody of her mother. Defendant was required to support the daughter during minority, and was required to pay plaintiff for the support of the daughter the sum of $50 per month until the sum of $500 has been paid. Defendant has an earning capacity of $265 per month.
There are no findings of fact, and it is impossible for this court to make a financial statement of the marital venture. The parties disagree about plaintiff’s contributions at marriage and subsequent to marriage, appropriations from the bank account, division of defendant’s earnings, and about every other subject concerning which they testified. The result is but two complaints of plaintiff are open to consideration: First, that the provision for the child is inadequate, and second, that plaintiff should have had an allowance out of defendant’s earnings.
It will be observed that defendant is required to support the child during minority, which extends to the age of twenty-one. After the allowance to plaintiff of $500 for support of the child has been paid, the matter of support of the child will be one resting between her and the defendant.
The court was authorized to take into consideration defendant’s earning capacity, and doubtless did so. Plaintiff is thirty-six years old, is physically strong and in good health, and earning capacity on her part was not negatived.
It was a function of the district court to make an award of alimony to plaintiff. The situation and circumstances of litigants are so diverse that district courts must be left free to exercise a wide discretion in making such awards. This court interferes only when it is clear discretion has been abused, and in this instance the court is unable to say that declination to order defendant to divide his future earnings with plaintiff was so arbitrary, unreasonable and unjust that it constituted abuse of discretion.
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The opinion of the court was delivered by
Mason, J.:
On August 1, 1914, Y. F. Girardy rented three quarter sections of land to C. A. DeMoss for one year for a crop rent, the written lease containing a number of special provisions, one being that the landlord might place live stock on the land, the increase to be divided equally. DeMoss occupied the land for several years, and in the spring of 1920 executed to the Croft State Bank three notes for the aggregate amount of $1,600, secured by mortgages on cattle on the place. The bank brought this action against Girardy for the possession of the cattle under the mortgages, upon the theory that, by virtue of changes orally made in the arrangement between Girardy and DeMoss, they had become partners and that the money was borrowed in the course of the partnership business for its use. The defendant contested both propositions. The trial court sustained a demurrer to the plaintiff’s evidence, and the appeal is taken from that ruling.
By the terms of the lease Girardy was to have two-thirds of the wheat and of any other crop that might be planted by mutual agreement. He was to furnish the seed wheat for the first year, but if the lease were extended for another year the seed wheat was to be taken from the crop of 1915. He was to furnish a man to help work the land from June 1 to August 31, 1915, he paying the wages, DeMoss providing board and lodging; and if the lease were extended for another year the man was to be furnished to November 1, 1915. DeMoss was to care for the stock and keep up repairs on implements. If Girardy rented other land for spring crops the crop was to be divided equally after Girardy was reimbursed for rent paid, Girardy furnishing horses and implements and DeMoss doing the work. Girardy was at his option'to place suitable stock on the land, to be maintained from feed raised there, DeMoss to care for it, the increase to be owned in common, the profits to be divided equally. DeMoss was to bear all expenses of handling ciops or stock except as above stated. Receipts from stock taken for pasturage were to be divided equally.
The contention of the plaintiff is that by oraí agreements after-wards entered into by Girardy and DeMoss the arrangement between them was changed into one of partnership, DeMoss to manage the business and to have authority, to borrow money upon the credit of the property. DeMoss gave testimony tending to show these facts:
The two rented an additional quarter and Girardy bought another one. In November, 1915, there was about 160 acres of feed, and they bought 60 yearling steers, Girardy saying: “I will buy steers and we will share the profits and losses. If they don’t make anything, we don’t lose much, nothing but our feed.” Feed raised on the place in 1915 was fed to them. They were sold and the profits (after they were paid for) were divided, each getting half of $600 or $700. The next year (1916) over 200 acres of feed was raised and 36 head of heifers and cows were bought in December, Girardy saying: “After these cattle are paid for we will go half and half-on the cattle.” It was said if there was not enough feed grown it was to. be bought, each paying half the cost. Girardy was to furnish the money and DeMoss was to pay back half of it. They were to share the profits and losses alike. These cattle were fed from the feed raised on the place and some were sold. In two years something over $2,000 worth were sold. Girardy told DeMoss to sell the cattle and send the money to the Security bank, at Wichita “on the note,” and he did so. Girardy was in Texas most of the time, coming up once or twice a year. DeMoss rented pasture for the cattle, and Girardy later asked how much the bill was and made no objection. In the fall of 1918 Girardy told DeMoss he would give him half the wheat from then on. “He said we would be partners in all, crop, feed and cattle.” On January 26, 1919, Girardy and DeMoss signed a memorandum stating that a list of fifteen cows, eleven yearlings and fourteen calves was according to séttlement made that day, adding, “Same are to be divided half and half,” followed by the words, “To be included as above, two horse colts and one mule colt and all the hogs on the place to date.” In 1919, twenty-eight head more were bought and fed. DeMoss bought- feed from others, and bought all his rent feed — his third — two different years. He also leased other pastures, to pay for a part of which money was sent him by Girardy, who was paid back by note. Girardy sent him part of the money to take care of the cattle and he borrowed a part from the Croft State Bank and the Wellsford bank. Girardy told him to get the money to run the place from the bank, not limiting him to any particular bank. DeMoss told the cashier of the Croft bank that the cattle belonged to him and Girardy in partnership, and borrowed some money, telling him it was to run the partnership business, to buy feed, giving the mortgages as security. To a question by the cashier as to why he did not sign the partnership name, DeMoss answered that there was no partnership name — that he always signed his own name for money for the partnership. Girardy had told him to sign his own name and get money to do business for the partnership. One of the chattel mortgages sued upon was identified as that given when this talk was had with the cashier. The changes made in the original arrangement as embodied in the lease included these: DeMoss was to own half of the original stock that had belonged to Girardy as soon as Girardy had received what he had paid for them; Girardy was to furnish half the feed for the stock; the feed used was not all to be raised on the place; Girardy was to stand half the cost of additional feed. The changes were made in 1917 and 1918. After borrowing the money of the Croft State Bank, DeMoss told Girardy of it, about June, 1920, although he already knew about it, and he said it was all right — everything was all right. On June 9, 1920, an indorsement was placed on the original lease, signed by the parties, reading, “The above lease is this day canceled, but no settlement made and no inventory taken.” Checks drawn on the bank account by DeMoss were sometimes for his own personal matters and sometimes to pay for feed and other things for the benefit of himself and Girardy. DeMoss had a book in which he made entries showing his own private transactions and also those of the partnership; it was kept in a dresser drawer of a room in which Girardy slept for three weeks in May and June, 1920, and disappeared at that time.
It was.not essential to the plaintiff’s recovery that the arrangement between Girardy and DeMoss should have amounted to a general partnership, or to a partnership at all in the strict sense, as the term is accurately used. The testimony of DeMoss lacks definiteness, but giving it the favorable construction, aided by reasonable inferences, to which it is entitled upon a demurrer to the evidence, it is sufficient to show prima jade that he and Girardy were engaged in such a joint adventure as to enable him to make a valid mortgage upon the cattle to raise money for the benefit of the business. It is said, “the leasing of a farm, for a term of years under an agreement that the owner shall receive in lieu of rent a stipulated portion of the net profits derived from the sale of the crops produced thereon is generally held to create a joint adventure,” and that if an agreement that a lessor is to receive a portion of the net profits as rent “goes further and gives to the lessor any control over the business conducted in the leased premises, it is usually construed to constitute the parties joint adventurers in respect to third persons.” (33 C. J. 843.) Also: “The member of a joint adventure who holds the title to real, or the possession of personal, property belonging to himself and his associates is presumed to have authority to mortgage or pledge it to raise money for the purposes of the enterprise or to secure debts incurred in carrying it on, and such mortgage or instrument of pledge, although signed by him individually, binds his associates as respects their interest in the property mortgaged or pledged.” (33 C. J. 873.)
By the same liberality of construction, the evidence as against a demurrer must be held to have a tendency to show that the mortgages in controversy were given to raise money to carry on the business and that the proceeds were in part at least used for that purpose; that Girardy consented to or at least acquiesced in such arrangement, and that the bank lent its money in reliance upon the existence of a joint adventure.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
This appeal is from a judgment holding a purchase-money real-estate mortgage to be inferior to a mortgage bearing a later date, on the ground that during a considerable interval that was permitted to elapse between the delivery and the recording of the purchase-money mortgage one who had no notice thereof acquired the other mortgage for value.
The plaintiff, E. E. Kuehn, on April 12,1922, entered into a written contract with William E. Freeman to deed to him a tract of Kansas lands taking back in part payment the purchase-money mortgage referred to. The deed and mortgage were signed and acknowledged and with a copy of the contract and other papers involved in the deal were placed in a bank at Chelsea, Okla., to be delivered when the terms of the agreement were met. While the deed and mortgage were still in the physical possession of the Chelsea bank the American National Bank of Pryor, Okla., on August 3,1922, obtained from Freeman the other mortgage referred to, which was recorded August 5, 1922. Kuehn brought this action to foreclose his purchase-money mortgage (which was recorded August 7, 1922), asking that it be given priority over that of the Pryor bank. He appeals from the judgment denying this relief.
The plaintiff’s contention is that the mortgage to him and his deed to the mortgagor were held by the Chelsea bank as escrows and had not been delivered at the time the other mortgage was given, in which case his claim of priority would doubtless be well founded, for a lien for purchase-money originating in the transaction by which title is transferred is conceived as an interest which has at all times been vested in the vendor and has been reserved to him rather than conveyed to him by the purchaser. (19 R. C. L. 416.) The Pryor bank, however, (which will be spoken of as the defendant, although other parties were brought in), asserts that before the execution of the mortgage to it the deal between the plaintiff and Freeman had been completed and Freeman had become entitled to the deed and the plaintiff to the purchase-money mortgage, but the Chelsea bank held these papers by consent of the parties, not to await the fulfilment of any condition of the escrow agreement, but merely as security for the payment by them of their respective commissions to two real-estate agents for their services in arranging the deal. The trial court adopted the latter theory.
It has been said:
“A purchase-money mortgage executed at the same time with the deed of purchase takes precedence over any other mortgage by the same mortgagor, and the second mortgagee cannot, by having his mortgage recorded first, acquire a priority over the purchase-money mortgage.” (23 A. & E. Encyc. 467.)
The statement is probably too broad and requires qualification, such as is indicated by this text:
“While a purchase-money mortgage, like any other, must be put on the record, and proper diligence is required of the mortgagee in doing this, yet the priority of such a mortgage is not lost by the mere fact that the owner of it allows a junior mortgage to be first recorded, if there are no other circumstances to show his agreement or acquiescence in the postponing of his security.” (27 Cyc. 1181.)
This court has said:
“The fact that a mortgage is given for purchase-money does not place it outside the provisions of the registry act or give it priority to which it would not be entitled under said act.” (Jackson v. Reid 30 Kan. 10, 14, 1 Pac. 308.)
The latter clause of that quotation may likewise need some qualification to make it universally applicable. A suggestion to that effect may be found in this language:
“Ordinarily, a grantor of land, who simultaneously with the execution of the conveyance, takes a mortgage from the grantee for the balance of the purchase-money is not required to search the records for incumbrances by such grantee while he was a stranger to the title, and before the deed of the grantor was executed.” (Ely v. Pingry, 56 Kan. 17, syl. ¶ 2, 42 Pac. 330.)
The weight of authority seems to support the view that a purchase-money mortgage because of its character as such has priority over another, which is not defeated by the mere circumstance of the other reaching the register first, where the purchase-money mortgage is recorded without any unnecessary delay after its delivery. But if the holder of a purchase-money mortgage voluntarily withholds it from record and in the meantime money is lent to one having no notice of it, upon another mortgage, no reason is apparent why the mortgage first recorded should not have priority in accordance with the ordinary rules with regard to recording instruments affecting real estate.
If 'before Freeman executed the mortgage to the defendant the plaintiff was entitled to receive his purchase-money mortgage from the Chelsea bank, but chose to allow it to remain there as security for the payment of some claim not connected with the contract under which the papers were originally deposited, doubtless he would thereby have lost his 'superior rights. But notwithstanding the find ings of the trial court in favor of the defendant, the established facts do not show this situation. The written contract concerning the deal between Freeman and the plaintiff provided that the deeds (the context showing that the mortgage was included) should be delivered to the rightful parties “when titles have been completed,” and this condition was met a considerable time before the execution of the mortgage to the defendant. But the contract also contained this paragraph:
“Both parties shall pay M. Bird Parks and Henry Cleidt their commission of 2% per cent on each side when papers are transferred or make settlement for same in some satisfactory manner to them.”
We interpret this language (and it appears to have been so interpreted by the parties) as meaning that the bank was to hold the papers until the respective commissions were paid. There is no evidence of any agreement outside of the written contract having been made that the bank was to hold the papers as security for the payment of the commissions. Therefore at the time the mortgage to the defendant was executed the Chelsea bank was rightfully holding the plaintiff’s deed to Freeman and Freeman’s mortgage to the plaintiff according to the terms of the written agreement until these commissions should be paid. The title not having passed from the plaintiff to Freeman, and arrangements having been made so that at the time it should pass an interest represented by the mortgage' would be retained by the plaintiff, the defendant could not acquire a superior lien by taking a mortgage from Freeman. It might be plausibly argued that if all that prevented the plaintiff from getting the mortgage was his own delay in paying the share of the commissions charged against him, the delivery as against him should be regarded as complete. But it is shown, also, that the deed was still held by the bank because of the failure of Freeman to pay his share of the commission, and this was paid by the Pryor bank to protect its own interests in October, 1922, the deed being delivered to it at that time and recorded later.
The findings of the trial court recite that Freeman had withheld the deed to him from the record for about two months after its delivery to him, which deed in the meantime had been put up by the said Freeman as a pledge to pay a commission.” But the commission referred to was that mentioned in the contract. There had been no actual delivery of the deed to Freeman, and his payment of the purchase price above the mortgage did not result in a constructive delivery, because the deed still remained in the hands of the bank under the terms of the original contract to be held until the commission was paid.
The written contract provided that possession of the land was to be given August 1, 1922. The trial court found that on August 3 Freeman was the owner of the land and in its actual possession. The actual possession referred to appears to have been a possession supposed to result from the title having passed to him, for the evidence does not show a physical possession, although the plaintiff had entered into the occupancy of Oklahoma land that he acquired in the trade.
■ The defendant’s evidence was that it had obtained its mortgage from Freeman after he had shown its representative the deed from the plaintiff to him, having obtained it temporarily from the Chelsea bank in order that the proper description might be inserted in the mortgage. There is some plausibility to a contention made by the plaintiff that in this situation the defendant was chargeable with notice of the actual facts concerning the capacity in which and the purposes for which the Chelsea bank held the deed, and therefore had notice of the purchase-money mortgage. As we hold the defendant’s mortgage to be inferior to that of the plaintiff, on the grounds already stated, this point need not be determined.
The plaintiff contends that the defendant acquired its mortgage with actual knowledge of the purchase-money mortgage and without parting with anything of value. On the day the defendant’s mortgage was executed its representative was told of the purchase-money mortgage, but according to his testimony this was later in the day than the execution of the mortgage to the defendant. The consideration for the mortgage to the defendant, according to its version, was the release of other security. It does not clearly appear that this other security had passed beyond the control of the defendant before it learned of the purchase-money mortgage, and upon this account its claim to the rights of an innocent purchaser may not be valid. This question likewise need not be passed upon.
The judgment is reversed, with directions to give the plaintiff’s mortgage priority over that of the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
Defendant was convicted of having intoxicating liquor in his possession.
He assigns various errors, the first of which relates to certain testimony touching the comparative size of the jugs defendant had in his possession, and of their contents. The testimony was competent for what it was worth in the jury’s estimation. The second error assigned relates to the exclusion of testimony offered by defendant. Not being presented in support of the motion for a new trial, the ruling is not subject to review. (The State v. Ball, 110 Kan. 428, 204 Pac. 701.) Defendant’s next grievance pertains to the belated indorsement on the information of names of witnesses. That matter was governed by the trial court’s discretion. (The State v. Price, 55 Kan. 606, 40 Pac. 1000.) The next complaint is directed at the instructions touching the law relating to possession of intoxicants. We discern no error here either in the instructions given or refused. The trial court was privileged to state the law in its own language, and did state it accurately; it -did not need to quote literally the text of some of our decisions on the same subject.
Defendant next argues that the venue was not proved. The evidence showed that defendant and another person drove out of town from Paola eastward towards some place named “Stringtown” in an automobile. At the request of defendant the car was stopped; defendant got out and picked up a sack with some jugs of liquor hid in the grass by the roadside, placed the stuff in the car, got in, and was driven back to Paola. It may be true that neither String-town nor the place by the roadside were shown to be in Miami county, but somewhere on the return journey defendant and his “possessions” got back into Miami county, if in fact he had been outside the county on that journey; and he continued to be in possession of the liquors until he returned to Paola, and thus his possession and exclusive dominion over the contraband property for an appreciable interval of time in Miami county was demonstrated. This court takes judicial notice that the city of Paola and the public highways leading thereto from every direction for some appreciable distance are within Miami county. (The State v. Brooks, 8 Kan. App. 344, 56 Pac. 1127; The State v. Stockman, 71 Kan. 852, 80 Pac. 1134; The State v. Dollar, 88 Kan. 346, 128 Pac. 365.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An effort was made to enlarge the boundaries of rural high-school joint district No. 8 of Shawnee and Wabaunsee counties. An appeal from the failure of the superintendents of public instruction of the two counties to make the change was taken to the state superintendent, who ordered it. An action was brought by the attorney-general in the name of the state to enjoin the execution of the order for an enlargement. An injunction was granted but was set aside by this court, the point determined being that the statute gives an appeal to the state superintendent in such a situation. (The State, ex rel., v. Rural High School Joint District, 115 Kan. 526, 222 Pac. 1106.) Upon a new trial judgment was rendered for the defendants, from which this appeal is taken.
Of the territory ordered to be added to rural high-school joint district No. 8, 11,440 acres were to be taken from rural high-school districts No. 4 and No. 5, of Wabaunsee county, and 960 acres had not previously been within any rural high-school district. The application for the change in boundaries asked that it be made under the authority of chapter 303 of the Session Laws of 1915, which consists of three sections, now known as R. S. 72-303, 72-304 and 72-305. These sections refer to ordinary school districts, but the statute concerning rural high-school districts provides that transfers of territory from one of such districts to another shall be made “as’provided by law for changes in school district boundaries” and that “rural high-school districts shall be governed as provided by law for school districts except as provided in this act.” (R. S. 72-3509.)
The application for the change of boundaries was signed by the resident owners of 3,880 acres, by tenants of 4,040 acres, and by nonresident owners of 400 acres. It was not signed by either owners or occupants of the remaining 4,080 acres. The first section of the act of 1915 cited reads:
“When it shall become necessary to form a school district lying partly in two or more counties, the county superintendents of the counties in which the said tract of country shall be situated, when application shall be made in writing to any one of them by five householders, residents therein, shall, if by them deemed necessary, meet and proceed to lay off and form the same into a school district, issue notices for the first district meeting and shall file the proper papers in their respective offices: Provided, That whenever a resident of a school district desires his property attached to an adjacent district situated in another county, he may make application to the county superintendent of the county in which he lives and the county superintendent of the county in which such adjacent district is located to have his property attached to such adjacent district for school purposes, and such county superintendents, if by them deemed necessary and for the best interest of the applicant, shall attach the property of said applicant to the adjacent district: Provided further, That no property shall be attached to an adjacent district situated in another county until notice has been given of an intention so to do and a hearing had as to the necessity or advisabilits'' of attaching such territory to the adjacent district.” (R: S. 72-303.)
1. The plaintiff urges that the clause “whenever a resident of a school district desires his property attached to an adjacent district situated in another county” refers only to the owner of the land involved, not to a mere tenant. In the preceding portion of the section provision is made for the creation of a district lying partly in two or more counties upon the petition of “five householders, resident therein.” A householder need not be the owner of the land he occupies (R. S. 77-201, subdiv. 25) and the words “his property” as used in the proviso may perhaps be interpreted as including land occupied by a householder who is not its owner. But that matter is not vital here. The section just quoted in full relates in terms only to the situation arising where it is desired to create a joint school district, either by forming a new district from territory of different counties, which requires the signatures of five householders residing in such territory, or by attaching territory of one county to a district already existing wholly within another, which requires the signatures of the owners (or perhaps tenants) of the property proposed to be so attached. Provisions for adding new territory to a district in the same county, or for shifting territory from one existing district to another, are included in the next two sections, reading:
“Such district so organized or having had adjacent territory in another county attached thereto shall be designated as ‘joint district number-, counties of-,’ and the boundaries of such district shall not be altered except by the joint action of the superintendents of the several counties represented in said district.” (R. S. 72-304.)
“That if in the alteration of or refusal to alter the boundaries of any joint school district or in the attaching or refusal to attach to a school district adjacent territory situated in another county, any person or persons shall feel aggrieved, such person or persons may appeal to the state superintendent of public instruction, and notice of such appeal shall be served on the superintendents of the several counties represented in said district within twenty days after the rendition by them of the decision appealed from, which notice shall be in writing.” (R. S. 72-305.)
The present case is not one of attaching territory in Wabaunsee county to a rural high-school district of Shawnee county, thereby creating a joint district, but of adding to a joint district already in existence, territory the greater part of which is taken from other rural high-school districts. As to that part of the territory we hold the objection based upon the lack of signatures of resident owners not to be well taken.
2. With respect to the attempt to bring into the rural high-school joint district land which had not previously been a part of any rural high-school district, a different situation is presented. The statute reads:
“Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high-school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high school board and the consent of the county superintendent of public instruction.” (R. Si 72-3514.)
While this section does not in so many words refer to districts situated in more than one county, or to more than one county superintendent, it is expressly made to cover “any rural high-school district,” and is to be interpreted as requiring the consent of both county superintendents in the case of a joint district, with an appeal to the state superintendent. Inasmuch as the statute makes this specific provision for adding to a rural high-school district territory not previously a part of one, while leaving transfers from one such district to another to be governed by the general regulations made for ordinary school districts, the method so pointed out must be regarded as exclusive. The order of the state superintendent must therefore be held ineffective so far as concerns land other than that taken from the two Wabaunsee county rural high-school districts. Only 960 acres, however, are affected by this ruling, and its inclusion does not invalidate the rest of the order.
3. The plaintiff contends that the statute (R. S. 72-303) providing for the making of an application for a change of boundaries to the superintendents of the two counties affected requires that it shall be filed with and considered by both, and that the application here involved was not filed with nor considered by the Shawnee county superintendent. The law does not require it to be filed with both officials, and there was a sufficient showing of its having been. considered by each.
The plaintiff further contends that the requirement of the section of the statute just cited that “no property shall be attached to an adjacent district . . . until notice has been given of an intention so to do” was not met, because the notice here given did not state that an intention to grant the application had been arrived at. The words quoted do not mean that the county superintendents must finally make up their minds to attach land before they give notice of a hearing on the subject. The notice stated that at a time and place named action would be taken upon the application, and this complied with the manifest purpose of the statute.
The name of the Shawnee county superintendent was affixed to the notice by his son. The point is raised that this violated the rule against delegating the exercise of official judgment and discretion. The affixing of the signature was an act proper to be performed by any one authorized by the superintendent. (Stanhope v. Rural High School District, 110 Kan. 739, 742, 205 Pac. 648.)
After the notice of the application had been given the Shawnee county superintendent died, and his successor acted at the hearing. The change in personnel did not affect the validity of the notice or the hearing. The statute (R. S. 19-2607) authorizing a new incumbent of a county office to coniplete unfinished business or records from written memoranda presents no obstacle to what was done ■ here.
It is contended that the Wabaunsee county superintendent had no legal notice of the hearing of the appeal to the state superintendent, although it is conceded she had actual notice at 4:30 p. m. that the hearing would be held at 10 o’clock the next morning. There was explicit evidence of a timely preparation of such notice ■and evidence from which its receipt might be inferred. The trial court did not specifically find that the notice was not duly received, and if necessary to support the judgment a finding to the contrary may be implied from the general finding for the defendants. The application of this familiar rule in the present case may seem somewhat technical, but it is not more so than the objection it meets.
A further contention is that the state superintendent had no authority to order the transfer of land of petitioners who did not join in the appeal to that officer. The appeal having been properly taken by the board of the joint high-school district, and by others, its effect was to bring up for review the entire matter of the proposed change.
“An appeal must take up for review the whole subject matter acted upon by the tribunal from which the appeal is taken . . An appeal can not be taken in fragments, but the whole question must be reviewed together.” (Field v. School District, 83 Kan. 186, 189, 190.)
A final objection to the validity of the order changing boundaries is that improvement bonds of the two Wabaunsee county rural high-school districts were outstanding, the obligations of which would be impaired by detaching territory from these districts. The problem of the adjustment of existing debts as between the districts creating them and territory detached therefrom is one to be worked out under the statutes relating to that subject. It does not enter into the question of the policy to be followed in regard to the territory which should be embraced within a particular district.
The judgment is affirmed, with the modification that the 960 acres not previously a part of a rural high-school district shall be eliminated from the order of the state superintendent. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant appeals from conviction on an information charging in three counts possession of intoxicating liquor, sale of intoxicating liquor, and keeping a liquor nuisance.
A motion to quash asserted the information was not verified as required by law. The motion was denied, and later, when the case was called for trial, an objection was made to the introduction of evidence on the ground the information was not properly verified. The court then permitted the county attorney to verify the information. Defendant says he should have been granted a continuance, but was compelled to go to trial over his objection, after he had been led to believe he would have ample time to prepare for trial. The facts are, defendant asked for no continuance, made no objection whatever to going on with the trial after the information was amended, and consented that the information might be treated as amended instanter, the amendment in fact to be made later.
A girl was interrogated by the county attorney, and on the day the information was filed made the following affidavit:
“July 16, 1923.
“To whom it may concern: I, Fern De Haven, age fifteen years old, of my own free will and accord do hereby state that on the 14th day of July I was in company with H. G. Dahmer, E. C. Clark and J. T. Breth. We went to the Tony Smarsh farmhouse in two cars, and Mr. T. J. Breth went in and brought out one gallon of liquor while the rest of, us waited outside. I have been to Tony Smarsh’s farmhouse on other occasions with young men and girls and got liquor.”
She was called as a witness for the state, and to the county attorney’s surprise she gave testimony contradicting her statements to him and her affidavit with respect to certain facts, equivocated with respect to others, and suffered a lapse of memory with respect to others. The county attorney, with permission of the court, resorted to the usual method of dealing with such cases, a method which must be employed unless courts are to be flouted. The court took care to instruct the jury at the time concerning the limited purpose for which cross-examination and impeachment were permitted, as well as in the formal instructions given when the case was submitted. Fifteen pages of defendant’s brief are consumed in demonstrating that, as a general rule, a party may not impeach his own witness.
The court instructed the jury that such liquids as wine, whisky, alcohol, and com whisky, being generally and popularly known as intoxicating liquors, are presumed to be intoxicating, and if defendant denied they possessed that quality it devolved upoij him to remove the presumption by evidence. Six pages of defendant’s brief are devoted to demonstrating that burden of proof as to all essentials of guilt rests upon the state, and not upon the defendant.
J. F. Breth testified he asked defendant if defendant had anything to drink, and defendant said he was not selling anything. Breth also testified, with great positiveness, he did not buy anything of defendant, and did not pay defendant for anything. Therefore, defendant says there was no evidence to prove a sale to Breth. This is what happened: After telling Breth he was not selling anything, defendant told Breth he would probably find something down at the Twenty-first street road, by a cottonwood tree, lying beside the road. Breth went there, and got a gallon of wine and a quart of whisky. About two weeks later defendant went to Breth, said he had a man whom he wanted to pay off, and borrowed three dollars of Breth, which at the time of trial had not been repaid.
The foregoing are samples of the assignments of error, twelve in number.
The court has no means of protecting itself against groundless appeals. It is not obliged, however, to dignify a case presenting no assignment of error raising a question about which there is any substantial doubt, by giving it the formal treatment accorded to causes of merit.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to determine the ownership and right to possession of a small tract of land in a bend of the Vermillion river in Pottawatomie county. The plaintiffs prevailed and defendant appeals.
Prior to 1886 the entire south half of the southwest quarter of the section in controversy was owned by Thomas Huey. It was crossed by the Red Vermillion river, which at that time ran from a northerly to a southerly direction, approximately fifty-five acres of the tract being west and twenty-five acres east of the river. Huey and his wife conveyed that portion of the land on the east side of the river to plaintiffs’ grantors, and that portion on the west side to defendant’s grantors. Subsequent to these conveyances the river changed its channel to the eastward, leaving more land on the west side and less on the east. The principal question is whether that portion of land in controversy on the west side was formed by erosion and accretion, or whether the changing of the channel of the river was by avulsion. Trial was had to Robert C. Heizer, but before a decision was made Pottawatomie county was removed from his district. It was thereupon stipulated that Judge M. A. Bender, to whose district Pottawatomie county was transferred, might make findings of fact and conclusions of law, determine and decide, and render final judgment in the cause upon the-evidence theretofore taken and transcribed. On due consideration, Judge Bender, among other things, found that:
In the year 1902 a flood caused the channel of the river to change to the east at least seven rods in one night; that in 1903 a flood caused the channel to move eastward from eight to twelve rods in a few days, and that during a flood in 1908 the channel moved eastward from eight to twelve rods in two days, and during minor floods at other times up to 1912 it moved three or four rods; that the washing and changing of the channel was due to the washing of the sandy soil underneath, whereby large portions of the bank of the river were caved as much as one rod in width and several rods in length at one time. That all of the washing of the floods of 1902, 1903, 1908 and the minor floods causing the channel to change eastward was in this manner, except upon one occasion, in a high wind, the washing of the waves caused a like cave-in of the east bank; that at no time was there any change in the channel by a gradual and imperceptible change as in the case of erosion and accretion; but that the changes were sudden and visible, and in each case consisted of what is known as avulsion; that since about 1912 the channel has been stationary; that during the changing of the channel it moved eastward about thirty-two rods at the farthest point, thereby cutting off about twelve and one-half acres of the land that was formerly east of the channel. That plaintiffs, through their predecessors in ■title and inheritance, were the owners of the twenty-five acres lying east of the channel prior to the changing thereof, and the defendant, through his predecessors in title, was owner of the west fifty-five acres. That as the channel of the river changed, the plaintiffs,and their deceased husband and father took possession of the land formed on the west side of the channel as it moved eastward and attempted to use and farm it up to what was the original channel until the year 1918, when defendant plowed up and destroyed the crops which plaintiffs planted, and took possession of said land. That the original channel, though filled up, is yet defined by the stumps of trees that stood on the banks of the river before the changing of the channel; that in March, 1913, a survey was made of the south half of the section in which the land in controversy lies, of which the parties to this action had notice; that the outside and center lines of the south half section were established, and that the survey shows the channel of the river as it now runs; that according to the plat made from such survey, the defendant was the owner of all the land west of the channel, but that no monuments were set; that the defendant has no right, title or interest in the property east of the original channel, and that the plaintiffs are entitled to the possession thereof.
It is contended by the defendant that the evidence does not sustain the findings of the trial court, and that inasmuch as Judge Bender did not try the case, but decided it from the record, that this court may do likewise. We have done so, but arrive at the same conclusion.
It would serve no useful purpose to here set down the testimony. It is said in the defendant’s brief: “Regardless of what view the court may take as to the washing away of the east bank, the testimony shows that the formation of the land in controversy was by a gradual, imperceptible addition to the west bank of the creek.” The evidence quoted by the defendant does not fairly sustain the statement. This line is quoted: “The old channel kept gradually filling in.” However, in the same connection the witness testified: “Since it started cutting, the channel washed away dirt on the east side and the dirt was deposited on the opposite side, making that ground higher.” Another witness testified: “The current of the river flows close to the east bank, and as it cut away the bank on that side it filled the land back on the other side.” Another witness said the land on defendant’s side of the creek was added on there from time to time, but this was said in connection with the statement that the east bank always washed away and the land formed on the west bank. This is the evidence most favorable to the defendant’s contention. When it is considered with the overwhelming evidence that the change of the channel took place during floods and storms, we arrive at the same conclusion as did the trial court — that the changing of the east' bank was by avulsion and that the additions to the west side of the stream did not amount to erosion and accretionaccording to the accepted definition of those terms as frequently laid down by the authorities. The subject was given serious consideration by this court in Fowler v. Wood, 73 Kan. 511, 85 Pac. 763. In the course of the opinion it was said:
“The courses of rivers being determined by the operation of the elements according to natural laws, they are subject to changes of location. If the change in the position of a navigable river dividing the territory of two states be by gradual and imperceptible encroachment, or insensible recession, so that the process cannot be detected while it is going on, the boundary follows the shifting thread of the stream. But if from storm or flood or other known violent natural cause there be a sudden visible irruption of the water, whereby the lands upon one side are degraded or submerged or a new channel is cut for the stream, the boundary remains stationary at its former location, and the boundaries of riparian owners whose lands have been affected remain unchanged. These principles are elementary in the law. The books teem with learning upon the subject, and the collation of authorities would be a work of supererogation. (McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822.)” (p. 521.) See, also, Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060; St. Louis v. Rutz, 138 U. S. 226; Bode v. Rollwitz, 199 Pac. 692; The State, ex rel., v. Turner, 111 Kan. 302, 207 Pac. 223.)
The defendant contends that the plaintiffs are bound by a survey made in 1913. We cannot regard the survey made as controlling. No dispute had arisen between the parties at the time of the survey, but if any had arisen it was not the province of the surveyor to determine it. The surveyor ran the boundaries of the subdivision of the section. He placed no monuments purporting to show a division of plaintiffs’ land from that of the defendant. (Swarz v. Ramala. 63 Kan. 633, 66 Pac. 649; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258.)
The plaintiffs were clearly entitled to the possession of the property. The defendant admitted that the plaintiffs were in possession, had put a fence around it, and were farming it when the defendant took forcible possession thereof. He took down the fence belonging to the plaintiffs and plowed up the crops which they had planted. Scrambling for possession will not be encouraged.
In Wilson v. Campbell, 75 Kan. 159, 88 Pac. 548, it was said:
“One in the peaceable possession of real property may not be turned out unlawfully or by force, even by an owner entitled to possession; it can only be done by due course of law.” (Syl.)
In Doty v. Cone, 85 Kan. 1, 3, 115 Pac. 977, it was said in the opinion:
“The plaintiff having taken actual possession of the lot, the defendant could acquire no right to it by scrambling for its possession, even if he had the greater right, which does not appear.” (See, also, Whitney v. Brown, 75 Kan. 678, 90 Pac. 277.)
A question is raised in reference to the expense of a survey made during the trial, which was charged as costs in the case. It appears that a stipulation was entered into that the plaintiff might have the surveyor who made the survey in 1913 mark his map showing the claims of the plaintiff, and that, as so marked, it might be offered in evidence as showing simply the claims of the plaintiff and in no -way to bind or prejudice any claims of the defendant concerning any matters covered by the map as amended or corrected, and that, as so offered, it should be considered by the court as a part of the plaintiff’s evidence only. Under the stipulation the plaintiff had certain work 'done for which a charge was made of $73.73. The survey was not in any way binding upon the defendant. It purported only to show the claims of the plaintiff. We think, under the circumstances, it was not properly assessed as costs in the case. The judgment in so far as this item is concerned is reversed; otherwise it is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The judgment in favor of the plaintiff having been reversed, and a new trial ordered, she has filed a motion for a rehearing, and the defendant a motion for a modification of this court’s order so as to direct a judgment in its favor. The motions are overruled, but some of the matters referred to therein will be briefly discussed.
Nothing in the opinion was intended to indicate that an answer of the jury “We don’t think so” was not to be treated as a negative, although it may in connection with other answers of “We don’t know” suggest a disinclination to pass upon an issue positively, and has been referred to as evasive. (Telegraph Co. v. Morris, 67 Kan. 410, 73 Pac. 108.)
The failure of the jury to return direct answers to the. questions whether on or before the date of the application for life insurance the insured had certain diseases or symptoms is important, notwithstanding they found that on that date he was not in bad health and that he did not have chronic Bright’s disease on or before that date, for these reasons: The finding that he was not in bad health was in the nature of a conclusion, or at least of a fact into which a number of elements entered, and the defendant was entitled to a definite answer as to each element concerning which an interrogatory was submitted. Moreover, it related only to the condition of the insured on the date of the application, while the questions which were not directly answered referred as well to his condition at any time before that. The finding that he had not had chronic Bright’s disease on that date or earlier does not answer the questions as to acute Bright’s disease or other symptoms and diseases. The materiality of the question concerning the consultation of a physician by the insured was not affected by the findings as to his health at the time of the application.
The refusal of the trial court to require a more explicit answer than “We don’t know” to questions submitted to a jury will not always require a reversal. We think it entitled to that effect here, especially because of the strength of the evidence produced by the plaintiff upon the issues to which the questions related. The plaintiff places much stress upon Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, and similar cases. There the opinion, in announcing the rule that an answer “We don’t know” is to be interpreted as a finding against the party having the burden of proof upon the question submitted, merely cites and follows Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953. That case, in turn, merely applies the rule declared in the leading case on the subject, Morrow et al. v. Com’rs of Saline Co., 21 Kan. 484, 504, which was quoted from in the original opinion herein, and in which it was said with reference to the jury’s answers of “We don’t know”: “It is therefore a right of a party to have a direct response to the questions. Here, however, the parties were content to abide by these answers; and each party, when invited by the court, declined to ask for further or more specific answers.” Of the other two citations in the Swarts case, one (A. T. & S. F. Rld. Co. v. McCandless, Adm’r, 33 Kan. 366) merely followed the Morrow case, and the other (K. P. Rly. Co. v. Peavey, 34 Kan. 472) held an instruction erroneous which told the jury to answer “don’t know” if there was “not sufficient evidence in favor or against any question to warrant an intelligent answer,” this court saying: ■
“The trial court should not have given it; for where such an instruction is given the jury will generally answer many of the questions by simply saying ‘Don’t know,’ when in fact they might and ought to give, under the evidence, intelligent answers to the questions.” (p. 486.)
In the case now under consideration, as already indicated, we regard the questions to which the answer “We don’t know” was returned as so related to those answered “We don’t think so” that the granting of a new trial because more definite answers to the former were not required calls for the setting aside of all the findings, including those made by the giving of the latter answer.
In the original opinion it was held that the purpose and effect of the provision that the policy should not take effect “unless the applicant is in good health at the time of its delivery” was to protect the company against a new element of risk through a change in the condition of the applicant occurring after the company’s investigation had been made; that it did not mean that no contract of insurance resulted if the insured at the time he made his application suffered from an ailment of which he was not conscious and which still existed when he received the policy. Mention was made of a line of North Carolina decisions which go further and hold that such a clause has entirely spent its force when the policy has been delivered, this court saying that the soundness of that view need not be passed upon. The plaintiff suggests that the ruling should be made more definite. The question passed upon was raised by the defendant’s contention that the trial court erred in refusing to instruct that no recovery could be had unless the insured was in good health when the policy was delivered to him. Our decision is, upon the ground indicated, that the instruction was properly refused. We do not regard it as necessary or desirable at this time to accept or reject the somewhat extreme view of the North Carolina court.
The defendant urges a reconsideration of the ruling concerning the effect of the clause referred to, ori the ground that it is against the better reasoning and the weight of authority. It is true a number of cases — -perhaps a majority of those which, have passed upon the matter — favor a literal interpretation of the provision of a life insurance policy that it shall not take effect unless the insured is in good health at its delivery. (25 Cyc. 720, 810; Note, 17 L. R. A., n. s., 1144.) Their weight to some-extent is impaired by these considerations: As a rule they rest upon a mere following of the ■ bare words of the clause, without applying the rule of construing against.the insurer language which is open to interpretation, and without an attempt to ascertain its real purpose in the light of the entire contract. In them the discussion is sometimes complicated with questions as to the effect of warranties and guarantees. If the clause is taken with absolute literalness it would render futile provisions making the policy incontestable on account of health conditions after a specified time, for if it never took effect such provisions could not operate. And if it is taken literally, a policy could be defeated by showing the existence of some disease antedating the application, although death resulted from accident, and this in spite of a statute making misrepresentations concerning an applicant’s health immaterial where they have no relation to the cause of death. The clause in question is often joined with one that the policy shall not take effect unless delivered while the applicant is alive. The obvious purpose of the latter provision is to guard against the death of the insured between the application and delivery, and a like purpose is reasonably to be inferred with respect to the former. In addition to the cases cited in the original opinion, these tend to support the view we there announced, and to which we adhere: Johnson v. Royal Neighbors, 253 Ill. 570, 576; Webster v. Columbian Nat. Life Ins. Co., 116 N. Y. Supp. 404, 408.
The plaintiff asks to have the ruling embodied in the portion of the original opinion designated by the figure 5 made more explicit. Our holding was intendéd to cover the proposition that the testimony (by deposition) of the Chicago physician as to what the insured told him of his condition, and also as to what conclusion he drew from these statements and his own observations (a part of which is shown on pages 57, 58, 61 and 62 of the abstract), which was withheld from the jury, should have been admitted.
The jury, instead of returning a verdict for the aggregate amount of $10,000 with the interest added, assessed the recovery of “$10,000 with interest thereon from January 9, 1915, at 6 per cent per annum,” and the district court followed the same formula in rendering judgment. The plaintiff complains of the trial court’s refusal to include the computed amount of the accrued interest in that for which judgment was rendered, so that the whole would bear interest from the date of the judgment. That may have been the effect of the statute as the judgment was written (R. S. 41-104; Roe v. Snattinger, 91 Kan. 567, 138 Pac. 581; 33 C. J. 215), but we think the plaintiff was entitled to have it expressly recited.
Further additions to the original opinion are thought to be unnecessary. The plaintiff’s motion for a rehearing, and the defendant’s for a modification of the order so as to direct judgment, are overruled. | [
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The opinion of the court was delivered by
Marshall J.:
The plaintiff sued to recover on a promissory note. The defenses were that there was no consideration for the note and that it was obtained under duress. The cause was tried to a jury; the court directed a verdict for the defendant; verdict and judgment were rendered accordingly; and the plaintiff appeals.
■> The undisputed- facts disclosed by the evidence were that the defendant had been engaged in business in Leon, Kan., where he became largely indebted and that he turned his mercantile business over to the plaintiff as the representative of all the creditors, and signed a writing, denominated a trust mortgage, which provided that the entire assets of the business should be turned over to the plaintiff as trustee, for the creditors. The written instrument contained the following provisions :
“It is further agreed that after satisfying all sums of money and interest hereby secured, and all actual and necessary costs and expenses incurred by party of the second part in the sale and administration of the same, second party shall return the surplus to the party of the first part.
“It is hereby understood and agreed, that each and all of the creditors of the party of the first part who shall accept hereunder do thereby and hereby release and acknowledge as fully paid and satisfied any and all claims and demands filed and proved hereunder.”
The evidence further showed that the creditors of the defendant did not realize the amount of their claims out of the assets of the mercantile business; that at the time the trust mortgage was signed, the defendant was interested in some wells that were being drilled for oil; that at that time he orally promised the plaintiff that he would pay all of his debts in full if his oil venture proved successful, or if in the future he should become able so to do; that after the execution of the trust mortgage and about the time of the execution of the note sued on, the defendant was being initiated into one of the Masonic organizations; that while the initiation was in progress and while the picture of the defendant and others was about to be taken, one of the creditors talked to the defendant and informed him that he must make arrangements to pay the balance of his indebtedness or he would be taken out of the class and would not be permitted to complete the intiation; that the defendant was greatly disturbed thereby; that he protested that he was not legally liable; and that after several hours had intervened the defendant signed the note sued on.
1. The plaintiff contends that the moral obligation of the defendant to pay his creditors in full was 'a sufficient consideration for the note, and cites Brown v. Akeson, 74 Kan. 301, 86 Pac. 299, and Robinson v. Jacobia, 115 Kan. 36, 221 Pac. 1113. In Brown v. Akeson a judgment had become barred by the statute of limitations and was therefore dormant. The judgment debtor made a new promise to pay the judgment and executed a chattel mortgage to secure its payment. The court held that there was sufficient con- . sideration for the new promise. In Robinson v. Jacobia the debtor had been discharged by proceedings in bankruptcy. Afterward a new promise was made. There the court said:
“The extinguishment of a debt by an order of discharge made in a bank ruptcy proceeding does not extinguish the moral obligation of the debtor to pay it, and such moral obligation constitutes a sufficient consideration for a new promise by the debtor to pay the debt.” (Syl. H 1.)
Other authorities are cited to the same effect. Those promises were made where the obligation to pay the debt had become unenforceable by operation of law. In the present case the obligation to pay the creditors had become unenforceable by agreement of the parties. The authorities make a distinction between the two classes of obligations.
In 17 A. L. R. 1335 is found a note which reads:
“While, as has been seen, the cases are nearly unanimous in upholding the validity of a new promise without a new consideration, after a discharge by operation of law in bankruptcy or insolvency proceedings, they, with a few exceptions (which will be subsequently noted), unite in holding that a new promise, after a voluntary discharge by act of the parties, is invalid without a new consideration, even when the debt, or a portion of it, is unpaid.”
In 13 C. J. 363 the writer says:
“A moral obligation may be sufficient to sustain a promise where it is one which has once been a valuable consideration, but has ceased to be binding from some supervenient act of the law. And a promise it is said may be supported by a moral obligation, where the obligation grows out of an original legal obligation that has been extinguished without being performed. The principle on which these cases rest is that where the consideration was originally beneficial to the party promising, yet if he is protected from liability by some provision of .the statute or common law meant for his advantage he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform; and the rule as recognized by them applies only to cases where the original right of action is extinguished by the act of the law and not to those extinguished by the act of the parties.’’
It may be well to notice a principle that obtains in the law of accord and satisfaction. .
In 1 C. J. 565, the author says:
“A valid accord and satisfaction takes place where some specific article of personal property or a conveyance of real property, is accepted in satisfaction of the demand.”
In Sigler v. Sigler, 98 Kan. 524, 527, 158 Pac. 864, this court said:
“The plaintiff relies upon the rule that an agreement to accept part in satisfaction of the whole of a liquidated demand is invalid because without consideration. (Bridge Company v. Murphy, 13 Kan. 35; St. L. Ft. S. & W. Rld. Co. v. Davis, 35 Kan. 464, 11 Pac. 421.) The reason for the rule is that there is no consideration for the release of the remainder of the 'debt, as the debtor gives no more than he is bound to give, and the creditor accepts no more than he is entitled to receive. The rule is said to have had its origin in a dictum in the English court of common pleas (Pinnell’s Case, 5 Coke’s K. B. 117). Although it is universally recognized by courts and text-writers, it has been crticized as technical, artificial, and having no foundation in reasoning. (Brooks and another v. White, 43 Mass. 283, 285, 37 Am. Dec. 95; Bolt v. Dawkins, 16 S. Car. 198, 214.) In a number of states it has been entirely abrogated or modified by statute. Courts generally refuse to apply the rule where the technical reasons for doing so do not exist (Brooks and another v. White, supra; Harper v. Graham, 20 Ohio, 105, 115), and have recognized numerous exceptions to it; for instance, the payment of a part before due, or at a place other than that where the obligor was legally bound to pay, or a payment in property, regardless of its value, or by the debtor in composition with his crediors generally by which they agree to accept less than is due them, is held to create a consideration which is sufficient.”
Two conditions named in Sigler v. Sigler, as sufficient consideration for a valid accord and satisfaction, are found in the present case — specific personal property was given in discharge of the indebtedness, and the creditors agreed to accept that property in payment of the obligations to them.
No consideration for the note was shown. For that reason the court was justified in directing the jury to return a verdict in favor of the defendant.
2. The plaintiff complains of the refusal of the court to admit the note in evidence. Its execution was specifically admitted in the answer. It was not necessary to introduce it in evidence. (Young v. Gibson, 80 Kan. 264, 268, 105 Pac. 3.)
3. Involved in this case is the rule that parol evidence shall not be admitted to contradict, alter, vary, add to, or change the terms of a written contract. The plaintiff says:
“The admission of the note in evidence does not violate the parol evidence rule.
“The trial court assumed a false premise in relation to the oral agreement, for by rejecting the introduction of the note the court held that the parol evidence rule is a rule of substantive law and. not a rule of evidence.
“The trial court fell into error by thinking that we were trying to prove the appellee’s promise to pay 83,300, by parol, he has removed that necessity by reducing the promise to writing.”
The terms of the contract concerning the release of the defendant from further liability on his indebtedness has been quoted. The oral evidence introduced to show that the defendant had promised to pay the indebtedness in full if his oil venture should prove successful or if in the future he should become able so to do, tended to contradict, add to, and change the terms of the trust agreement. That evidence violated the parol evidence rule.
Because of the conclusion reached concerning the consideration for the note, it is not necessary to discuss the matter of duress.
The judgment is affirmed. | [
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The decision of the court was announced by
Mason, J.;
The abstract and brief filed by the plaintiff do not present any question of law for the determination of the court. The record has been examined to some extent, and it does not appear that any injustice has been done by the trial court. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On May 5, 1921, M. C. Combs, of Richfield, Kan., executed four “myself” notes for $500 each, payable to his own order, and due in six months, indorsing them in blank and delivering them to B. R. Beezely and H. L. Hawkins. This action was brought against Combs on such notes by the Pioneer Trust Company, of Kansas City, Mo., claiming to be a holder in due course through purchase from E. E. Amick, by whom they were indorsed. The defendant pleaded that his execution of the notes was procured by false representations and that the plaintiff was not a holder in due course, but acquired the notes with knowledge of the fraud. Judgment was rendered in favor of the defendant and the plaintiff appeals.
The plaintiff contends that the evidence did not justify a finding that it was not a holder in due course. The defendant testified that the notes were given for stock in the A. J. Stephens Rubber Company, at the rate of $30 a share, Beezely and Hawkins representing that to be its market price and telling him it was paying from 16 to 35 per cent dividends. Evidence was presented that these repre sentations were untrue, justifying a finding that the notes were obtained by fraud and the title of Beezely and Hawkins was defective, so that the prima facie presumption of the plaintiff being a holder in due course was overthrown and the burden was cast upon it to prove that fact. (R. S. 52-505, 52-509.) The notice of the fraud required to prevent a- plaintiff from being a holder in due course must be actual knowledge, or knowledge of such facts that his action in taking the notes amounts to bad faith. (R. S. 52-506.) Mere knowledge of suspicious circumstances, or of such facts as would excite the suspicion of a reasonably prudent person, is not enough (Youle v. Fosha, 76 Kan. 20, 90 Pac. 1090; Bank v. Reid, 86 Kan. 245, 120 Pac. 339; Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637), although they may be such evidence of bad faith as to take a case to a jury. (3 R. C. L. 1075.)
To meet the burden of showing that it was a holder in due course the plaintiff introduced the depositions of its vice president, who had acted for it in acquiring the notes, and of its discount teller, who made the entries in the loan register concerning them, together with the entries themselves. They showed that the plaintiff, without knowing for what the notes were given, purchased them from E. E. Amick on May 14,1921, for $2,000, of which $1,600 was credited on another note of his for $7,000 held by the plaintiff, the balance being paid by check.
Where because of fraud in the inception of a note the plaintiff has the burden of proving that he is a holder in due course, the question whether he has met the requirement is ordinarily one -for the jury. (Trust Co. v. Gill, 113 Kan. 261, 270, 214 Pac. 413.) There is, however, an exception to this general rule, recognized by this and many other courts, which has been thus expressed: “unless that evidence is so clear and unequivocal as to leave no room for difference of opinion among fair-minded men.” (Beachy v. Jones, 108 Kan. 236, 195, Pac. 184.) That situation arises where the plaintiff accounts for his good-faith ownership-by evidence which is not intrinsically improbable, and is not contradicted or impeached by, or inconsistent with, other evidence or inferences fairly to be drawn therefrom. (8 C. J. 1063, text to note 72; Delaney v. Brownwood, 73 Colo. 83; City Nat’l Bank of Auburn v. Mason, 192 Iowa 1048; Smith v. Breeding, 196 Iowa 670; First Nat’l Bank of Montour v. Brown, 199 N. W. 272 [Iowa]; Barnard v. Napier, 167 Ky. 824; Edelen v. First Nat’l Bank, 139 Md. 413; Trust Co. v. Wachman, 221 Mich. 512; First Nat’l Bank v. Klimenhagen, 199 N. W. 91 [Minn.]; Goedhard v. Folstad, 156 Minn. 453; Downs v. Horton, 287 Mo. 414; City Nat’l Bank v. Jones, 109 Neb. 724; Howard Nat’l Bank v. Wilson & Trustee, 96 Vt. 438; Fisk Rubber Co. v. Pinkey, 100 Wash. 220; First Nat’l Bank of Ritzville v. Gunning, 127 Wash. 307; First Nat’l Bank of Ritzville v. Egbers, 226 Pac. 492 [Wash.].)
It was said in an early case, where a directed verdict for the holder of a negotiable note was upheld:
“The defendant urges that the burden of proving the plaintiff bought the note in good faith was upon him. It is immaterial where the burden of proof belongs as an abstract matter of law, when all the evidence of the transaction has been introduced, and it establishes that the note was purchased in good faith, and without notice of any facts that would have led the plaintiff to a knowledge of the consideration of the note.” (McCormick v. Holmes, 41 Kan. 265, 267, 21 Pac. 108.)
And more recently, the character of the issue where fraud in the inception of a note has been established and the circumstances of its acquisition by the plaintiff have been shown by undisputed testimony:
“There is no contention, and under evidence properly admitted and not disputed there could be no serious contention, that the plaintiff knew of the fraud in procuring and negotiating the note, or was otherwise guilty of bad faith. The facts upon which the defendant relied as establishing bad faith were not sufficient for the purpose.” (Gigoux v. Moore, 105 Kan. 361, 368.)
A holder’s acquisition of a note without notice of fraud in its inception is established where, after finding that he took it with such notice, the jury, in answering a question requiring them to state of what the notice consisted, mention only matters which do not warrant an inference of bad faith. (Bank v. Dillenbeck, 111 Kan. 98, 205 Pac. 1022.)
The burden of proving himself a holder in due course, which is cast upon the plaintiff when fraud in the inception of the note on which he sues is shown, is sometimes treated as what is called the burden of evidence, or a mere shifting of the order of proof. (See Brannan’s Negotiable Instruments Law, 3d ed., § 59, p. 217; 8 C. J. 988; 3 R. C. L. 1039.) We are proceeding on the theory, however, that if fraud is established the actual burden of proof upon the issue of good faith rests upon the plaintiff. In meeting that burden he is required to show the circumstances under which he took the paper, and his case is not made by merely showing a purchase for value before maturity. (Consolidated Motors Co. v. Urschel, 115 Kan. 147, 222 Pac. 745; see, also, 3 R. C. L. 1039.)
The evidence in behalf of the plaintiff having been given by deposition, there is no room to suppose — assuming such supposition otherwise to be tenable — that from something in the appearance and manner of the witnesses the jury discredited their statements. There was nothing intrinsically improbable in the testimony, which described an ordinary business transaction. The plaintiff consequently met the burden of proving it was a holder in due course, and judgment should have been rendered in its favor, unless the facts as developed by the evidence tended to show (and therefore warranted a finding) that it took the notes with actual knowledge of the fraud or with knowledge of such facts that its action in taking them amounted to bad faith. The question to be determined is whether that condition exists here.. The defendant urges various specific grounds upon which he contends a finding that the plaintiff was not a holder in due course may be justified. We do not regard them, singly or collectively, as tending to establish that fact. Each will be briefly mentioned.
That the notes were paid for in part by indorsing a credit upon a note of Amick’s for a larger sum does not affect the matter. (8 C. J. 494; Brannan’s Negotiable Instruments Law, 3d ed., § 25, p. 102.)
The plaintiff’s evidence showed these facts: It bought the notes without any inquiry as to the financial standing of the defendant (although Amick said something about his being a large landowner and perfectly good), taking them in reliance wholly upon the indorsement of Amick (the vice president of a Kansas City bank) and not upon the solvency of the defendant. In the loan register Amick’s name was entered under the column marked “maker” and the defendant’s under “indorser,” the purpose being to have the liability shown on Amick’s account. The plaintiff called upon Amick once or twice to make good the amount of the notes, and he said he would pay it whenever he had to, but wanted to collect it out of the defendant if he could. The plaintiff was trying to collect it from the defendant, expecting Amick to pay if it should not succeed in doing so.
The facts that the plaintiff bought the note in reliance upon the financial standing of Amick and not upon that of the defendant, and that it elects to collect it from the defendant, does not affect its standing as a holder in due course. The right of an innocent purchaser to look to the maker of a note who has a good defense against the original holder is not based upon the principle of equitable estoppel to such an extent that he must show he parted with value in reliance upon the- maker’s responsibility. The quality of negotiability is given to the instruments which possess it, notwithstanding that inequitable results sometimes follow, because public policy is thought upon the whole to be best served by promoting their currency. One who acquires them under the conditions which make him a holder in due course may use his pleasure as to which of those legally liable he shall pursue.
The stock purchased by the defendant had formerly stood in the name of Amick, and the evidence warranted the inference that the persons who sold it to him were acting for Amick. The notes were sold to the plaintiff on the day the stock was transferred on the books of the corporation from Amick to the defendant. In behalf of the defendant it is argued that the plaintiff acquired the notes on the day Amick received them, and that collusion may be inferred from that fact and from the circumstance that Amick was a stockholder in the plaintiff company. We do not think that inference justifiable.
Amick was in Kansas City on the day the depositions were taken in behalf of the plaintiff and he was not produced as a witness then or at the trial, and it is suggested that this was in a way the suppression or withholding of evidence. The plaintiff was not asserting any right upon the theory of Amick himself having been a holder in due course, and was under no obligation to make him its witness. The situation is quite different from those presented in Ireland v. Shore, 91 Kan. 326, 137 Pac. 926, where a witness refused to produce an important paper within his control, and in Security Co. v. Low, 112 Kan. 153, 210 Pac. 190, where correspondence bearing on the controversy was missing from the plaintiff’s files.
The jury in response to special questions found that the plaintiff had paid nothing for the notes, that it had actual knowledge that they were procured by fraud, and acquired the knowledge from Amick. We think the findings and general verdict are without support in the evidence.
The judgment is reversed with directions to enter judgment for the plaintiff.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for the alleged negligent killing of plaintiff’s husband.
The tragedy happened on December 8, 1921, about 11:30 o’clock in the forenoon, at a railway crossing about a mile east of Smith Center, where the railway runs east and west and the public high-' way runs north and south. Five persons were riding southward in a Dodge touring car; J. C. Reiser was driving; Mrs. J. C. Reiser rode by his side in the front seat; W. A. Yenne, plaintiff’s husband, sat on the left side of the rear seat, and with him sat Jeff Yenne and Mrs. Jeff Yenne. They had left their homes, some fourteen miles northeast of the crossing, about 10:30 a. m., and were going to a public sale two or three miles southeast of Smith Center. As their car was going southward over the crossing it was struck by defendant’s westbound passenger train, and Reiser, W. A. Yenne, Jeff Yenne and Mrs. Yenne were killed. Mrs. Reiser survived and was a witness at the trial.
The plaintiff charged the railway company with negligence in failing to construct and maintain the crossing as required by law; that the crossing was only 16 feet wide; that the grade approaching the crossing was steeper than permitted by the statute, and that the grade continued up to the rails with no level ground immediately north of the railway track;
Defendant’s answer contained a general denial, and alleged that plaintiff’s husband’s death was caused by his own negligence and that of Reiser, the driver of the automobile, and that he and Reiser were engaged in a common enterprise.
The pleadings of both plaintiff and defendant contained other allegations of fact, which so far as necessary will be considered in connection with the evidence pertaining thereto.
Jury trial; verdict for plaintiff for $2,500; special findings, in part, as follows:
“Q. No. 3. Was the crossing’ sign bearing the words ‘Railroad Crossing’ in the shape of an ‘X’ on a post in place and visible to travelers on the highway traveling from the north? A. Yes.
“Q. No. 4. Were the railroad track, and wing fences of the cattle guards plainly visible to one approaching the crossing in an automobile from the north? A. No.
“Q. No. 5. At what rate of speed was the automobile in question traveling while approaching the railroad crossing?' Miles per hour.
(a) When 50 feet from the crossing?......................... 12
(b) When 25 feet from the crossing?...............•.......... 8
(c) When upon the crossing?................................ 8
“Q. No. 6. At what distance from the crossing could the train have been seen by W. A. Yenne when on the highway?
(a)113 feet from the crossing? We do not know.
(b) 75 feet from the crossing? We do not know.
(c) 50 feet from the crossing? We do not know.
(d) 40 feet from the crossing? We do not know.
(e) 25 feet from the crossing? We do not know.
“Q. No. 7. If you find that the defendant was negligent in one or more of the acts alleged in the petition, then did such act or acts of negligence proximately contribute to or cause the injury? A. Yes.
“Q. No. 8. If in answer to the next foregoing question you find the defendant was negligent, then state specifically in what such act or acts consisted? A. That defendant’s railway was very rough, steep, narrow, unlawful,' and an approaching train from east is not visible when automobiles are ascending grade from the north until within a few feet of the1 rails.
“Q. No. 9. Did W. A. Yenne at the time and at all times prior to the accident use such care for his own safety as an ordinarily prudent person would have used under the same or similar circumstances? A. Yes.”
The jury were directed to return a fuller answer to question No. 8, and complied as follows:
“Ans. to Q. 8. That the approach to the defendant railway was very rough, steep, narrow, unlawful and an approaching train from the east is not visible when automobiles are ascending grade from the north until within a few feet of the rails.”
Defendant moved that the jury be required to answer question No. 6, moved for a new trial, and moved to set aside the answers to questions 4 to 9, inclusive. These motions were denied, and judgment was entered for plaintiff.
Several errors are assigned, around which defendant centers two main contentions — that the evidence failed to show that the railway company was guilty of any negligence which brought about the death of W. A. Yenne,- and that the evidence did show that there was contributory negligence on the part of the deceased.
As all other allegations of negligence charged against the defendant were eliminated by the special findings of the jury (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590), let us first notice that the negligence'of the railway company as found by the jury lay in the defective character of the crossing. The findings read:
[First] “Ans. to Q. 8. That defendant’s railway was very rough, steep, narrow, unlawful, and an approaching train from east is not visible when automobiles are ascending grade from the north until within a few feet of the rails.
[Second] “Ans. to Q. 8. That the approach to the defendant railway was very rough, steep, narrow, unlawful and an approaching train from the east is not visible when automobiles are ascending grade from the north until within a few feet of the rads.”
The statutory requirement as to railway crossings over rural township highways is that unless the board of county commissioners finds it unnecessary, the railway company must maintain in good repair a crossing twenty feet in width, of the same grade as the railway track for thirty feet on each side of the rails, and the approaches thereto shall not exceed six per cent grade, and special requirements are made for the filling of the space between the rails. (R. S. 66-227.)
The plaintiff’s evidence tended to show that these statutory requirements had not been met, nor had the county commissioners found them to be unnecessary at this particular crossing. So, of course, the negligence of the defendant in failing to comply with the statute was established. But to fasten liability upon the railway company it was not enough to show that the railway company had failed to comply with the statute touching the character of crossing maintained by it on this highway. It was necessary to show that defendant's failure and neglect to construct and maintain this crossing in accordance with the statutory standard was the proximate cause of the accident which brought about the death of W. A. Yenne. (Williams v. Electric Railroad Co., 102 Kan. 268, and citations, 170 Pac. 397; Carson v. Railway Co., 103 Kan. 138, 172 Pac. 1000; Note to Shatto v. Erie R. Co., 59 C. C. A. 5, 10, 19.)
Now it is yery difficult to see how the defects of the crossing had anything to do with causing the accident. The defects were comparatively slight. The jury found the approach was very rough, but there was no evidence to that effect. The jury found the approach was steep. It was steeper tiran the statutory standard of 6 per cent grade; it was about 8 per cent. The jury found that the approach was narrow; it was about sixteen feet wide. But there was no evidence that these shortcomings of the approach to the crossing presented any difficulties to the automobile and its occupants in negotiating the crossing. The jury found that the automobile approached the crossing at twelve miles an hour and was crossing the track at eight miles per hour when struck by the train. Mrs. Reiser, the sole survivor of the accident, in testifying in plaintiff’s behalf, said:
“Q. Well, you went straight south on that road, did you? A. Yes, sir.
“Q. And you finally came to a railroad track, did you? A. Yes, sir.
“Q. Now, did you see this railroad track? A. No, sir. . . .
“Q. And was Mr. Reiser driving at that time? A. Yes, sir.
• “Q. About how fast was he driving? A. Well, I don’t know just exactly, but I think not more than fifteen miles per hour.
“Q. That is your judgment of it? A. Yes, sir. . . .
“Q. Now, this car, was it in good running order? A. The automobile, you mean?
“Q. The automobile? A. Yes, sir.
“Q. It didn’t have the appearance of being out of order in any way as far as running is concerned? A. No, sir. . . .
“Q. Do you, or do you not, remember of going up an incline just before going onto the track? A. Yes, I remember going up a slope. . . .
“Q. Had you driven faster than fifteen miles an hour as you were coming from this corner that you testified to, that has been referred to as the Sam Cannon corner? A. No, I think not.
“Q. And you continued to drive at fifteen miles an hour until the accident occurred? A. Yes, sir.”
In view of this evidence it is difficult to avoid the conclusion that the want of compliance writh the statutory specifications in maintaining the crossing was not the proximate cause, nor in any sense the cause of the accident. ,
But without attempting to dispose of the case on the point just discussed, let us consider defendant’s contention that plaintiff’s husband met his death by his own contributory negligence.
The jury found (finding No. 4) that the railway track and wing fences were not plainly visible to one approaching the crossing in an automobile from the north. There was no want of evidence to justify a different answer to this question. Perhaps the occupants of the car did not actually see the rails and ties as they approached the crossing; but Doctor Relihan, witness for plaintiff, testified that coming from the “Cameron corner,” a quarter of a mile north of the crossing, the cattle guards painted white were plainly visible, and that the railway embankment stretching westward from the crossing was plainly to be seen.
The testimony of Jones, another witness for plaintiff, in part reads:
“Q. Now, when you are up at this Cannon (Cameron) corner, looking southward, you can see the railroad crossing from that point, can’t you, a quarter of a mile distant? A. Yes, sir. . . .
“Q. Tell the jury, please, what you see from the Cannon (Cameron) corner ' as you turn south. A. As you turn south?
“Q. Yes, sir. A. Well, you can see the railroad track, you can see the cattle guards and the fill on the west side of the road.
“Q. You also see the crossing sign bearing the words ‘Railroad Crossing’? A. Yes, sir; I think so; I am sure so.”
The testimony for the defendant was to the same effect, but oí course we can attach little or no weight to the latter, as the jury might have discredited it. Indeed, the jury might have disbelieved the plaintiff’s witnesses Relihan and Jones, if there had been any evidence to the contrary which would have supported a negative answer to question No. 4. But the fact of the visibility of the railway- — -the large crossing signboard, the white-winged cattle guards, the railway embankment stretching westward, and the line of telegraph poles — were not only established by evidence elicited from plaintiff’s witnesses, with no evidence to the contrary, but the record contains a panoramic photograph, defendant’s exhibit 1, whose accuracy is unchallenged; which demonstrates that it was impossible for passengers in a Dodge touring car not to see the railway if they were giving the slightest heed to what was to be seen for a quarter of a mile ahead of them as they traveled southward on the highway towards the crossing. The jury did find (answer No. 3) that the large crossing signboard, bearing the words “Railway Crossing” in the shape of an X on a post in place at the railway crossing, was visible to southbound travelers on the highway; but it is rather apparent that there is a want of candor in the jury’s answer to question 4, which was 'also propounded tó elicit the fact that there were other visible evidences of the existence and location of the railway in addition to the crossing signboard, which the deceased and his fellow passengers were bound to have seen' if they had been giving due regard to their own safety.
The jury also found that “an approaching train from the east is not visible when automobiles are ascending grade from the north until within a few feet of the rails.” (Finding No. 8.)
There was much testimony and rather persuasive photographic evidence tending to prove that at any point from 25 feet to 100 feet north of the railway track there was nothing to prevent a person in an automobile from seeing an approaching train 150 yards to 1,000 feet away; and it is very doubtful, indeed, if there was any evidence to justify the jury’s finding; but whether it was supported by any evidence or not, the law is that when a person is approaching a railway crossing over a public highway and there are obstructions to his view, so that he cannot tell for sure by merely looking or listening that no train is coming, he cannot go ahead and cross, taking a blind chance as to his safety. In such a situation the duty of self-preservation requires that before attempting to cross he must stop and ascertain whether or not a train is approaching from behind the obstruction which shuts off his vision. (Wehe v. Railway Co., 97 Kan. 794. 156 Pac. 742.)
In Rathbone v. Railway Co., 113 Kan. 257, 215 Pac. 109, the action was much like the case at bar. A woman riding with her son in an automobile over a railway crossing on a public highway was killed by a railway train. The plaintiffs charged and the jury found that the railway company was guilty of negligence in the condition of the crossing. There were some obstructions to the view of an oncoming train at the approach to the crossing on the public highway. The railway company relied chiefly on a defense of contributory negligence. This court said:
“But notwithstanding defendant’s negligence in the way it maintained the crossing, it was incumbent upon Emmett and Bessie Rathbone, before they attempted to cross the railway track where their vision was shut off by obstruction, to ascertain positively that no train was approaching and that they could safely cross. This they did not do. ... It is settled law in this state that it is negligence to atempt. to cross a railroad track ahead of a speeding train, even in a case where but for a defective crossing the party making such foolhardy attempt would have escaped unscathed by a few ticks of the clock. (Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801.)” (pp. 259, 260.)
And while the duty of a passenger in an automobile to look out • for possible dangers ahead is not precisely the same as that of the driver, he is equally under the duty of looking out for his own safety as far as practicable. He is expected to see dangers which are obvious and to warn the driver of them. (Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Kessler v. Davis, 111 Kan. 515, 207 Pac. 799.) And if the driver is disposed to be heedless of his own safety and that of his passengers, and disregards their protests against his want of care, they should demand that they be permitted to leave the vehicle which is carrying them into danger. (Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613; Naglo v. Jones, 115 Kan. 140, 222 Pac. 116.)
Applying these settled principles to the controlling facts about which there can be no cavil in this case, and excluding altogether those features of the case where there may be some controversy- over the facts, and without attempting to convict the jury of downright • insincerity in its' answer to question No. 4 and in its failure to answer question No'. 6, the jury’s finding in response to' question -No. 3 reduces this appeal to very narrow limits. The jury found -that the railway-crossing signboard was plainly visible to one approaching the crossing in an automobile from the north. So W. A. Yenne could have seen that crossing’ sighboard if he had looked. The survivor, Mrs. Reiser, testified that her husband was a very careful driver, and that it was his custom and also hers to keep a sharp outlook ahead for railway crossings, but that neither she nor her husband noticed this crossing. That merely goes to show that in this instance these unusually cautious people were off their guard. The signboard was plainly visible. They could have seen it. There was nothing to prevent W. A. Yenne in the rear seat .from seeing the crossing sign, and the rule of law is that he is chargeable with notice of whatever warning signs on the highway were plainly to be seen by those whose duty it is to be on the outlook for them. Yenne was a man of ordinary stature; Reiser, the driver, who rode in front of him, was an unusually small man. Yenne’s .vision ahead was not shut off, and the slits in the side curtains were ample for him to see whatever was to be seen on the left side of the car., and if the lay of the land or other obstructions prevented him from assuring himself that no train was approaching, it was his elementary duty to himself to warn the driver. This doctrine has been so often expounded by this and other courts that it is the veriest com- ' monplace. In Kirkland v. Railway Co., 104 Kan. 388, 179 Pac. 362, it was held that it was contributory negligence for persons to cross a railway track in front of an approaching train “which they could have seen if they had looked.”
In Knight v. Railway Co., supra, it was held:
“A mature person who attempts to cross a railroad track without taking any precautions for his own safety, while riding in an automobile with another' who is driving, cannot recover damages from the railroad company for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744, followed.)” (Syl.)
In Kessler v. Davis, 111 Kan. 515, 517, 207 Pac. 799, it was said:
“The plaintiff, however, was under a positive duty to take reasonable precautions for his own safety. Whatever else this may have involved, it required him to keep an outlook for a train, particularly on his side of the car, and to give the driver notice as soon as he discovered one. (Knight v. Railway Co., ante, p. 308, 206 Pac. 893; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.)”
In Rathbone v. Railway Co., 113 Kan. 257, 261, 215 Pac. 109, it was said that even if the deceased had been riding as a guest, “she was bound to look out for herself as far as practicable.”
In Holman v. Railway Co., 113 Kan. 710, 712, 215 Pac. 1111, it was said:
“Under rules of logic frequently applied by this court, it is often held in crossing-accident cases that testimony and findings that a person had looked before crossing a railway track and saw no train approaching must be disregarded because manifestly untrue, since if the person looked he must have seen whatever was within reasonable range of vision to be seen.”
And so here. If plaintiff’s husband had looked ahead at any time after the automobile turned south at the Cameron corner, a quarter of a mile away, he could not have failed to see the railway crossing signboard warning him that he was riding into danger. (Limbaugh v. Schaff, Receiver, 114 Kan. 24, 27, 217 Pac. 279.) It thus appears that the failure of the deceased to see the railway crossing signboard and to warn the driver of. the automobile under the circumstances constituted contributory negligence .as a matter of law, and this requires that the judgment be reversed with direction to enter judgment for defendant.
It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an amicable action to obtain a declaratory judgment on the validity of a contract by which the city of Kansas City leased a certain tract of land to Woods Brothers’ Corporation for a term of years. The land involved consists of what once was a narrow strip of platted ground in the original town site of Wyandotte, now Kansas City, on the right bank of the Missouri river, north of the mouth of the Kansas river. The original dedicators of the town of Wyandotte set aside this strip of ground in 1857 for a public levee. At that early time and for some years following there was considerable navigation on the Missouri river, and the levee was, or might have been, of some potential public service incidental thereto. With the coming of railroads, however, river navigation declined and the strip of land in question was left in idleness and neglect. For over half a century it has been of no practical service as a public levee. By accretion of silt and slow recession of the Missouri river, the original narrow strip along the river bank dedicated as a public levee in 1857 has grown until there are now about 111 acres in the tract. Some shanties have encroached thereon, some small industries have been conducted there on sufferance, but for the most part the platted levee and its accretions have been put to no use. Surrounded by the industry and bustle of a great and growing city, it has remained in idleness and unsightliness, subject to occasional overflow, a seed bed for noxious weeds and a breeding ground for malaria and kindred diseases. South of the platted strip of ground in question, and westward upstream for several miles along the Kansas river, is the Kaw Valley drainage district, where a system of dikes and embankments has been constructed for purposes of protection against floods. To the northward also, along the right bank of the Missouri river, is the Fairfax drainage district, where an extensive system of dikes has been erected for the same purposes. To link up the Fairfax drainage dikes with the Kaw Valley drainage dikes by improving this long-neglected public levee, as well as to put the property to some practical use consistent with the purpose of its original dedication, and to have it cleaned up and made sanitary and sightly, the city has leased the levee and its hundred-odd acres of accretions to the defendant corporation for thirty years at twenty dollars per acre per anum. The lease contemplates the diking of the property to prevent recurrence of floods and submergence, the laying out of streets, the construction of sewers and paving, the erection of industrial plants and warehouses, and the construction of facilities for any river traffic which may materialize during the term of the lease — all consistent with and apparently helpful to and promotive of the use of the property as a public levee. It is provided :
“The party of the second part agrees that said property shall not be used for any purpose which will conflict with its use as a public landing or public levee, party of the first part reserving to itself all such rights, or in violation of any state law or city ordinance now in force or that may be in force in the future and during the life of this lease.”
The trial court made findings of fact and held—
“That the city being in full lawful control, possession and dominion of said land, had the lawful right and authority to execute the lease involved in the form and manner in which it was executed, and it is of material benefit to the city, its citizens and taxpayers and the public, and that the terms of such lease [should] be carried out.
“That such lease does not interfere with or impair the right of the city to use such land for levee purposes should the need therefor arise, and does not impair or cloud the legal title held by the defendant county.
“That such lease was in all respects valid and all the terms thereof were and are within the lawful power and authority of the grantor therein.”
Were this conclusion and judgment correct?
The city had full dominion and control over this so-called public levee. (Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610.) The city could not give countenance to any disposition of the property at variance with the purpose for which it was dedicated. (Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453; The State, ex rel., v. City of Manhattan, 115 Kan. 794, 225 Pac. 85, and citations.) But here there is no attempt to divert the property to a use at variance with the purpose for which it was dedicated. Rather the contrary. By the lease it is proposed to improve the property so that it will be better adapted to the purpose of a public levee, and perchance to attract to it such traffic as usually is conducted on and about a public levee. The city has unquestioned power to lay a pavement and construct driveways on this public levee. It has power — and probably it is its duty — to improve this property, to clean it up and make it sightly and sanitary, and to dike it to prevent recurring overflows. And it would be a narrow construction of the city’s powers to hold that, while it could lawfully make these improvements itself, it has no power to cause them to be made through a contract with a lessee or licensee. Nor will it be disputed that whether or not a particular use of land dedicated as a public park, levee or commons amounts to a diversion from the uses for which it was dedicated depends upon the circumstances of the dedication and on the intention of the dedicator, and is therefore largely a question of fact. Thus in Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014, where a gift of land had been made to the city for a public park, and -the deed of gift provided that “said real estate shall be inalienable by said city of Topeka, either by way of deed, conveyance, lease, or in any other manner” (p. 328), the question arose whether concessions in the park for refreshment and lunch stands, and to rent boats, bathing suits and dressing rooms, for which the city exacted and received pay, was a perversion of the purposes for which the property was given to the city. The court said:
“We see nothing in the conduct referred to that is inconsistent with the public character of the park or that conflicts with the terms of the gift. The exclusive character of .the privilege conferred is not the basis of any legitimate objection. For as no one has a right to engage in the activities referred to except by permission of the city, no one is wronged by the monopoly created. . . . Nor do they involve the loss of control over it by the public officers. Clearly it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be afforded facilities for obtaining refreshments, for boating and for bathing. No reason exists why they should not pay a fair price for what they eat or drink or for the boating or bathing equipment they use. The city might through its employees furnish these conveniences directly, collecting reasonable charges therefor. The fact that a profit resulted would not render the transaction objectionable. The incidental revenue would not characterize the transaction as commercial rather than governmental. . . . The furnishing of the conveniences referred to is a proper incident to the management of the park, and the method followed is so naturally adapted to the desired end that it must be regarded as a matter of administrative detail, not necessary to be specifically authorized by the legislature.” (pp. 329-30.)
While there is general accord among the courts that property dedicated .for public use can neither be leased, sold nor otherwise diverted to purposes different from those to which it was dedicated, yet the “rule of reason” holds sway on this phase of the law as in all others. Thus in Codman v. Crocker, 203 Mass. 146, 25 L. R. A., n. s., 980, the question arose as to the use of the historic Boston Common, a tract of land in the town of Boston which had been set apart by the early colonists as a training ground for the local militia and as a cow pasture for the. local inhabitants. For generations the public authorities had endeavored to preserve the famous common to the purposes of its dedication, as nearly as .the changing conditions of the changing centuries would permit, yet gradually it became impracticable to use the property as a cow pasture, and, indeed, it became eventually little better adapted as a training ground for the town militia. And so, with the lapse of years, trees were planted on the common, walks were laid out, fountains and monuments erected, and other provisions were made for the comfort and pleasure of the public in their use of the place. With still further changes in the municipal life and customs of the town, the question arose whether the construction of a tunnel under a part of the common would amount to a diversion of the property from the purposes of its dedication. The court, in effect, answered this question in the negative. In the opinion it was said:
“As years have gone by there is no longer any occasion for common occupation of this land as a cow pasture, and in the sense in which the word ‘training field’ was then used, this is almost equally true of this other kind of use. The proper execution of the public trust requires that the property be still kept open as a common for occupation by all the people, in ways that are kindred to those in which a common would ordinarily be used under such a dedication in the early years of the colony. . . . Under the changed conditions in recent years, it was held by this court that the construction of a subway through the common was not inconsistent with the purposes of the original dedication, and that it could be authorized by the legislature, acting as the representative of the public interest. (Prince v. Crocker, 166 Mass. 347.) This was virtually a decision that such a use was not a violation of the quasi trust under which the legal title is held. It does not disregard the doctrine relied on by the plaintiffs, ■ that where property is dedicated by donors to a public use for a particular puspose, it cannot, at least without the exercise of the paramount right of eminent domain, be appropriated to a use of a different character, in disregard of the trust under which it is held and in violation of the rights of the donors and their legal representatives. ... In accordance with this doctrine, . . . the common cannot be cut up into building lots and used for the erection of shops, and it may be doubtful whether it could be taken under an act of the legislature and a vote.of the city government of Boston, or of the citizens of Boston, and used by a railroad corporation for a freight yard . . . The ground on which the decision stands is that the new use is not at variance with the general purpose of the donors, and that accordingly it was within the power of the authorities, representing the public as beneficiaries under the trust, to provide for this additional use of the property.” (Codman v. Crocker, 203 Mass. 146, 149, 151; and see notes to same in 25 L. R. A., n.s., 980, et seq.)
A case somewhat analogous to the one at bar arose in the city of Hannibal, Mo. One Glascock had platted and dedicated a strip of land as a public levee and landing place for river craft along the bank of the Mississippi in Hannibal. At the time of the dedication and ever since there has actually existed some river traffic at Hannibal so as to call for some actual use of the public levee, although through want of maintenance and repairs that use had become negligible. The supreme court of Missouri held that there might be another lawful use of the property consistent with and which tended to promote the use of the property as originally dedicated, i. e., by the construction of railroad tracks, grading, paving and extending the streets, constructing crossings, reconstructing a boathouse and enlarging the facilities for landing boats, and that the granting of a franchise to a railway company to lay its. tracks on the levee in consideration of its undertaking to make such improvements was not illegal. The case received exhaustive treatment, but we can only take space to qdote one section of the syllabus, which, however, contains the gist of the decision:
“The owner of land along the Mississippi river in 1836 platted it, and on the plat marked and designated a certain part as a ‘public levee’ and a ‘public landing,’ and the plat was recorded, and thereafter that part was used and is still used as a public landing for steamboats, and the city granted to the railroad company the right to construct a double-track railroad through the center and the full length thereof, and spur tracks, but required it to grade and pave the levee a distance of 750 feet, and to extend the streets and to provide safe, well-constructed and convenient crossings over the track, and to reconstruct the boathouse so as to afford enlarged facilities for the landing of boats, and if the improvements are carried out the city for the first time will have a properly improved levee adapted to river traffic, and boats may conveniently and safely anchor at any time, at either low or high water, whereas heretofore they could land only at low water. . . . It is not permitted to use the tracks for car yards, or for switching, but only for passage, and its use of the levee and the rights of the public are safeguarded. The only objection to the railroad use is that it will increase the danger to life and limb of those using the river traffic. Held, that the railroad use of the levee is and must ever be subsidiary and subservient to the use of the levee for river traffic, but it is not an inconsistent use, nor a diversion of the trust, and the ordinances were not void or voidable.” (State, ex rel., v. Dryer, 229 Mo. 201, 202, syl. ¶ 4.)
The learned Missouri court referred to an Oregon case in which a secondary use of a public levee was involved:
“In R. R. Co. v. City of Portland, 14 Ore. 188, the public landing had been dedicated to public use by Coffin, the original patentee of the land. After-wards the legislature granted the railroad the right to occupy the same with 'track, sidetrack and depot buildings, etc., provided the company should never charge any dockage to any boat, ship or vessel engaged in receiving or discharging cargoes at the wharf. The decision settled the right of the city and railroad. While the dedication was held irrevocable even by the legislature, it was ruled that the placing of railroad tracks and a depot with wharfs and warehouses for the receipt and storage of freight was not destructive of the use, but added to its efficiency, and that the act of the legislature, in so far as it authorized a sale of the landing as such, exceeded their constitutional powers, but that the license to construct the track and depot did not exceed the legislative power and the act was not wholly void.” (State, ex rel., v. Dreyer, supra, p. 238.)
In the lengthy but interesting case of Newport, &c., v. Taylor’s Ex’rs, 55 Ky. (16 B. Mon.) 699, 804, it was held, among other matters, that the dedication of lands laid out in a town on the bank of a navigable river to be a common confers the right on- the public au thorities of the town to build wharfs and charge wharfage. See, also, Goode v. The City of St. Louis, 113 Mo. 257.
In view of the outstanding facts of this case — that the strip of land dedicated for a public levee has not been so used for half a century; that its platted limits have grown by accretion to many times its original proportions (a fact which the dedicators could scarcely have had in contemplation); that the property and its accretion serve no present useful purpose; that the proposed improvements to be effected by the lessee and licensee will in the opinion of the city government responsible for the public welfare accomplish the important desideratum of improving the sightliness and sanitation of the premises, and tend to induce and promote the use of the property as a public levee — this court is bound to hold that no case of abuse of municipal power or diversion of trust property to uses antagonistic to or inconsistent with the purposes contemplated by its dedication is made to appear, nor any case justifying judicial interference with this particular exercise of the administrative discretion vested in the city government.
The judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a proceeding in mandamus to compel the enforcement of an order of the public utilities commission requiring the railroad company to stop train No. 22 on flag at Kincaid, Kan., to discharge passengers from Parsons and points south and pick up passengers for points to Paola and points north. This order was made on July 26, 1923. It has not been enforced and this proceeding was brought to compel enforcement. Kincaid is on the main line of the Missouri, Kansas & Texas railroad, running from Parsons to Kansas City. At the last United States census it had a population of 443 and is said to have about 500 at the present time, but it is claimed that the train would serve the near-by towns of Blue Mound, Lone Elm and surrounding country, so that 1,500 people would be accommodated by the operation of the train.
Several citizens of Kincaid applied to the commission to stop trains Nos. 22 and 23, one of which goes north to Kansas City and the other south to Texas points, but the order made only applied to No. 22, and there was a finding that public convenience did not require the stopping of train No. 23. The trains going north which do stop at Kincaid are No. 30, which leaves Kincaid at 9:35 p. m., reaching Kansas City at 12:25 a. m., and No. 24, leaving Kincaid at 9:38 a. m., arriving in Kansas City at 12:30 p. m.; and there is a freight train No. 98, carrying passengers, which stops at Kincaid, leaving there at 11:35 a. m. and arriving at Paola at 2:30 p. m. Going south there are three trains which stop for passengers at Kincaid, one at 12:40 a. m., one at 1:25 p. m. and another at 9 a. m. The passenger trains going through Kincaid in the evening and early morning hours carry Pullman accommodations, and No. 30, which carries a Pullman, is parked at Kansas City until 7:30 a. m., which passengers are permitted to occupy up to that time. Trains No. 22 and 23 are the fast through interstate trains of the railroad company between Kansas City and Dallas, Fort Worth and San Antonio, Tex. The train going south from Kansas City connects with a like fast train from St. Louis at Parsons, and then proceeds through Oklahoma and Texas, connecting with other fast trains in those states. These trains carry United States mail and interstate express and are run on a special fast schedule in competition with trains of other railroad companies between the terminal points named.
The plaintiff contends that the local conditions at Kincaid and the convenience of the people there required the service of another train, and therefore that the order of the public utilities commission is fair, just and reasonable.
On the other hand, the defendant contends that the testimony shows beyond dispute that the people of Kincaid and tributary territory are already furnished with adequate and reasonable passenger service, and that the order compelling the fast interstate mail and passenger train to stop at Kincaid is a direct burden and an unconstitutional interference with interstate commerce and with the transportation of the mails.
It is conceded to be within the power of the state to require a rail- • road company to provide adequate facilities for the accommodation of the public at a given point, and it is likewise conceded that the company cannot be required to stop fast interstate mail trains where adequate service for the community has been otherwise provided and where the stoppage of such fast trains would be an undue inter ference with interstate commerce. The extent of state control of interstate traffic was before the supreme court of the United States, and the rule was succinctly stated in Chi., B. & Q. Ry. v. Wisconsin R. R. Com., 237 U. S. 220, 226, where it was said:
“(1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules.
“(2) Such facilities existing — that is, the local conditions being adequately met — the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce.
“(3) And (this, whether the interference be directly by the legislature or by its command through the orders of an administrative body.”
It may be said that there is little if any dispute as to the controlling facts of the case. It appears that the people of Kincaid are quite well provided with passenger service. There are persons outside of the town who might use the added service, and it is said that the town of Blue Mound and Lone Elm would also be accommodated, but it is shown that these towns are situated on the railroad of another company and not on that of the defendant. No inquiry can be had as to the facilities furnished them by the other company. It is clear that there are many towns in the state having a larger population and a greater traffic than Kincaid which are not so well provided with transportation facilities. There are two through trains to Kansas City every twenty-four hours, and the mixed train, which carries passengers as far north as Paola, where connections can be made with other railroads. Some of the testimony tended to show that if trains arrived and left Kincaid at earlier or later hours, it would be more convenient for certain citizens who make occasional trips to Kansas City, Mo., and desire to return the same day, but it appears that the passenger traffic from that place to Kincaid is very light. There is testimony that the traffic there is an average during the year of three passengers per train per day. A witness testified that if the fast trains stopped there would be from five to eight passengers a day. A schedule that would accommodate one traveler might be untimely as to another, and it would not be practicable to put on sufficient number of trains to suit the convenience of each traveler. It has been said that—
“A perfect system of railroad transportation, whereby the traveler can begin Kis journey at an hour which precisely suits his own convenience, progress with due speed and arrive at his destination, wherever that may be, at a reasonable hour of the day, is scarcely to be expected, however much it is to be desired. That would be Utopian. A train schedule could not be arrangod so as to begin and end every journey in the daytime.” (St. Louis, I. M. & S. Ry. Co. v. State, 85 Ark. 284, 289.)
In view of the number of trains provided which carry passengers to and from Kincaid, it must be held that adequate transportation facilities are already provided.
It has been shown that trains Nos. 22 and 23 which run through four states are fast mail, express and passenger trains, and that to make additional stops would prevent the making of schedule time. The public, as all know, demands speed in transportation, and competition with other railroads in the carrying of mails and passengers demands that fast through trains be run. The trains mentioned are the only through fast trains on this line, and it was shown that if stops were made at places like Kincaid it would convert them into local trains and occasion the loss of the through traffic which they were designed and scheduled to carry, and destroy their usefulness. Obviously such a requirement would make it impossible for the company to provide the public with reasonably speedy transportation, and render it unable to compete with its rivals in carrying interstate passengers, mail and express. Having already provided the community with adequate facilities, it follows that the obligation of the defendant to the locality has been performed, and that the order requiring the stoppage of the train is an unconstitutional interference with interstate commerce and with the rights of the defendant. Under the decisions of the federal supreme court the order sought to be enforced must be held invalid. A few of the supporting authorities are: Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 514; Miss. R. R. Com. v. Ill. Cent. R. R., 203 U. S. 335; Atl. Coast Line v. Wharton, 207 U. S. 328; Herndon v. Chi., R. I. & P. R. Co., 218 U. S. 135; Chi., B. & Q. Ry. v. Wisconsin R. R. Com., 237 U. S. 220; Missouri, K. & T. R. Co. v. Texas, 245 U. S. 484. See, also, The State, ex rel., v. Railway Co., 101 Kan. 660, 168 Pac. 838.
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The opinion of the court was delivered Vy
Burch, J.:
The action was one to recover the price stated in a contract proposing sale of a secret process for manufacture of gasoline. Plaintiff prevailed, and defendants appeal.
The contract was signed on August 26, 1918, by plaintiff, Jesse Conry, owner of the process, who for convenience may be called seller, and by Frank S. Larabee, Fred D. Larabee, T. J. Holdridge, Sr., and T. J. Holdridge, Jr., who for convenience may be called buyers. The contract provided for enlarging and improving an experimenting and demonstrating plant already in existence, at a cost not to exceed $500, to be paid by the buyers; for a fifteen-day test run, at buyers’ expense, but under seller’s supervision, to demonstrate practicability of the process for profitable manufacture of gasoline; for acceptance or rejection of the process by buyers at the end of the test run; for payment of $57,500 to seller by buyers in case of acceptance; and for nonrevelation of the secret process by buyers in case of rejection. A copy of the contract is appended to this opinion.
The experimenting plant was put in readiness, and a test was made on September 13, 14 and 15, 1918, but neither acceptance nor rejection of the process was announced by buyers. On October 4, 1918, Holdridge, Sr., died. On October 16, 1918, the surviving buyers assigned their interest in the contract to F. L. Slaughter. Early in November, 1918, H. J. Wilson became interested with Slaughter and negotiated with the seller for the process. Wilson testified that, after tests at the experimenting plant during a period of about five weeks, the seller being present part of the time, Wilson dropped negotiations.
Between November 4, 1918, and May 24, 1921, the seller wrote letters to the Larabees and to J. C. Pixley, which disclose the following facts: The seller did not consider that the buyers had accepted the process pursuant to the contract of August 26, 1918, and the test run, but he claimed to be owner of the process, with absolute dominion over it, including right to permit others to use it, and right to prosecute Slaughter and Wilson should they use it. The seller considered he had right of dominion over the experimental plant, was apprehensive that one J. L. McCabe, who will be identified later, was scheming to “freeze him out”; spent several weeks previous to January, 1919, trying to make the plant serviceable; went to the plant, which was located in Independence, in January, 1919, with the intention of moving it to Olathe; and in April, 1919, was willing t'o make J. C. Pixley an attractive offer to run the plant for the seller, if Pixley would help clear the title. (Mechanics’ liens for improvement of the plant had been filed, which were subsequently foreclosed.) As early as November, 1918, the seller had information relating to the Larabees wanting to dispose of the contract and being induced to get out. The seller believed the Larabees had been misinformed, and added to a letter written at Independence and dated November 5, the following significant statement:
“We can make 60 B product now any day on a steam still just installed. No loss in volume (gallons).”
About two weeks before November 21, 1918, the seller considered giving a new option to Holdridge, Jr., Wilson and Slaughter, and he testified that at that time Wilson told him Wilson, Holdridge, Jr., and Slaughter were buying the Larabees out. On November 21, 1918, the seller proposed to the Larabees that they join him in putting in a gasoline plant in a certain natural gas field, and as an inducement suggested that he might allow the Larabees to use the process somewhere independently of him. On April 5, 1920, Fred D. Larabee died. On May 15, 1921, Holdridge, Jr., died. On May 24, 1921, the seller wrote Frank S. Larabee, sole surviving buyer, stating the seller had a gasoline plant, with a capacity of from 2,000 to 4,000 gallons per day, in operation; that he wanted to sell a controlling interest for $8,000, and asking if Larabee would be interested. On June 8, 1921, Frank S. Larabee died. On February 23, 1922, the seller sued the personal representatives of the deceased purchasers for the purchase price of the process.
Seller and buyers were brought together for negotiation of the contract by J. L. McCabe. He testified he acted at solicitation of the Larabees. In October, 1917; the seller gave McCabe a contract for use of the process in three states. McCabe testified he took the contract in his own name at the suggestion of Fred D. Larabee. In November, 1917, McCabe transferred his rights under the three-states contract to Holdridge, Jr. The latter contract was modified by a contract dated August 25, 1918. The assignment to Slaughter covered the three-states contract, as well as the contract of August 26,1918, forming the basis of the suit. The operative portion of the assignment to Slaughter reads as follows:
“Now, therefore the parties of the first part hereby agree for valuable consideration, receipt whereof is hereby acknowledged, that if the party of the second part shall pay to them within twenty (20) days from this date the sum of three thousand dollars (S3,000) cash in hand, they will deliver to the party of the second part the said contracts above mentioned and described, and duly assign to the party of the second part or any other person he may designate.”
The petition alleged that the buyers accepted the process on or about October 16, 1918, the day the then-surviving buyers assigned the contract to Slaughter. In reply plaintiff pleaded that the buyers were'estopped to deny they took over the process and assumed and exercised dominion over the process, because of the assignment to Slaughter. There was a jury trial, and a verdict for plaintiff for the contract price of the process, with interest, against all defendants except the personal representative of Holdridge, Sr., who was relieved from liability by a peremptory instruction.
To sustain the issue of acceptance of the process under the terms of the contract, plaintiff produced as a witness Albert C. Lyon, a chemist and chemical engineer of Kansas City, Mo., whose business was conducting laboratories and making tests. He testified that on August 24, 1918, two days before the contract was signed, Fred D. Larabee brought to his office a bottle of what Larabee called synthetic oil, to be tested. Larabee said that Conry had submitted to him a proposition relating to production of synthetic oil by a process which Larabee described to Lyon. Negotiations which resulted in the contract were then, pending. Lyon tested the contents of the bottle and made a written report, giving the chemical analysis, and stating that by distilling the product a fair grade of gasoline could be obtained, and by adding casing-head gas the proposition would be promising. This report was admitted in evidence over objection of defendants that the character of the oil analyzed, whether good or bad, and the character of the Conry process, whether good or bad, were immaterial to the issues. Lyon said his report was delivered to the two Larabees, and they asked him for an explanation in detail. He gave such an explanation, which he repeated on the witness stand. He testified he knew the Larabees had casing-head gas plants in Oklahoma, and this would make an A-l gasoline. As a result of this conference the Larabees engaged him to go to the experimenting plant at Independence to be present when the contemplated demonstration took place, which he did. On September 17,1918, he made a written report of the demonstration, and the report was introduced in evidence. The conclusion of the report was embraced under the heading, “Remarks and Opinion.” Afterward Fred D. Larabee asked for an opinion with reference to commercializing the product, and on September 26 Lyon wrote him fully, showing that a profit could be made of $600 per day for 800 working days of the year, or $180,000 per year. Subsequently Fred D. Larabee interrogated Lyon further about the cost and yield, and gave Lyon his idea of how to handle the process — form companies at different points in different states, have other people furnish the money, and retain an interest in, each plant — and Lyon testified that from the figures he gave Larabee, Larabee seemed to be pleased with the outlook.
While negotiating with the seller, the Larabees were consulting a patent lawyer, Elliott, of St. Louis, Mo., and Lyon attended a conference between the Larabees and their attorney. Lyon was invited to the conference to see if there were any flaws in the claims for a patent, and he testified to the suggestions which he made.
The casing-head gas plants in Oklahoma, nine in number, in which the Larabees were interested, were in charge of W. E. Burke as manager. Burke received his degree of chemical engineer from the same school which graduated Lyon, and subsequently established a chemical and physical laboratory in which Lyon was assistant and partner. Burke’s business in 1918 was oil and gas, and in that year he experimented in reduction of low-grade oils into gasoline. He had made a special study of the subject from many patents, and had installed a “cracking” process in a refinery of which he was manager. The Larabees called him to Kansas City to consult in reference to the Conry process, and he was present at the conference between the Larabees, Elliott and Lyon. Lyon told all that occurred. One incident was that Burke said the Conry claims for patent did not, in his opinion, cover anything at all, and Lyon felt called on to use plain English to Burke, showing him there were processes for making gasoline from kerosene and natural gas, but in a different way.
Fred Larabee received a letter from the patent attorney, dated September 20, 1918, relating to Lyon’s report of the test run, and advisability of further tests under conditions which might demonstrate something. Lyon discussed this letter with Larabee, and expressed to Larabee his views on the subject of the letter, which he detailed on the witness stand. There was more testimony of the kinds indicated, but the foregoing is sufficient for present purposes.
Defendants called Burke as a witness. The Larabees had called Burke into conference respecting the process on occasions other than the one mentioned by Lyon. On those occasions he had advised them respecting the process, had pronounced it worthless, and had recommended that the Larabees drop it. The court declined to permit Burke to testify to conversations with the Larabees unless either Conry or Lyon was present when the conversation occurred. The matter was sharply presented by defendants asking the witness for the first conversation he had with the Larabees in the absence of Conry and Lyon. The ruling sustaining objection to the testimony was followed by an offer of proof which fairly indicated the nature of the evidence, and Burke’s affidavit, stating in detail what his testimony would have been, was filed in support of a motion for a new trial.
Defendants called as a witness R. B. Pringle, who was vice president and general manager of the Wade Phillips Company, who was experienced in oil matters, and who was familiar with methods of refining oils and gasolines. He testified that Frank S. Larabee requested him to go to Independence and witness the demonstration of the Conry process, which he did. After the demonstration Pringle discussed the demonstration and the Conry process with Larabee, and gave Larabee his opinion respecting them. He was not permitted to testify concerning conversations with Larabee at which Conry was not present. Proper procedural steps were taken to protect privilege to review the court’s action. Defendants offered in evidence the patent attorney’s letter, but the court refused to permit the letter to be read to the jury. There was more evidence of the kinds indicated.
We have then this situation: The Larabees called on four persons regarded as experts for assistance and advice in investigating and determining whether the seller had anything to sell, or worth buying. Plaintiff selected one of these experts as his witness. The witness admitted he was a partisan of plaintiff, and, over objection, the witness gave a full account of his relations with his employers, what he saw and did, what he said and wrote and reported, what they said and did, and the attitude of their minds toward the process. When defendants undertook to disclose influences attributable to other agents, which it was believed operated to produce a decidedly different attitude of mind, and to determine conduct, they were denied the privilege.
The contract provided that demonstration of the process should be under direction of the seller. He was present at the demonstration, but it was managed by McCabe, who was financially inter ested in its success. The contract provided his commission should be paid by the buyers. What occurred was this: Two boilers had been set up, one as a container of liquid, and the other of vapor, with a circulation system between them. A measured quantity of kerosene was placed in the container. Natural gas from the city main was turned in at half-hour intervals, but the quantity was not measured. Heat and pressure were applied, both so low that even Lyon admitted the stability of molecules would not be affected. At the end of three hours it was discovered that nature had called upon her reserve of inscrutable processes, and had created in this womb of mystery 10% gallons, or sixty pounds, of new liquid. Lyon admitted the test was crude, but recommended further experiment under improved conditions, and, without explaining the miracle, pictured to the Larabees fabulous profits by use of the process. The patent attorney wrote Larabee that he had read Lyon’s report with great interest, noted the 10 gallons increase, and agreed with Lyon the test was inconclusive as to what occurred in practicing the process. Burke’s explanation of the increase was very simple. He told Larabee the additional ten gallons had been deliberately introduced by some one. Pringle told Larabee the demonstration was a failure and the process was a fake. Frank S. Larabee said he would have nothing more to do with the process, and on October 16, the buyers disposed of their contract. The seller’s conception of the situation following the test which matured the buyers’ obligation to accept or reject the process, as revealed in his letters and as held until the buyers were all dead, has been presented. The result is that if fruit of the buyers’ relations with one of their agents was important to plaintiff, as bearing on the issue of acceptance or nonacceptance, fruit of the buyers’ relations with their other agents was equally important to them.
Plaintiff contends that because Lyon was agent of the buyers, they were bound by his admissions against their interest, made in the course of employment. As applied to the bulk of Lyon’s testimony, the contention is refuted in the case of Railway Co. v. Burks, 78 Kan. 515, 96 Pac. 950. While that case was a corporation case, and the subject of investigation was cause of an accident and not integrity of a process, general applicability of the principle involved was indicated in one of the authorities cited in support of the decision, and the situation of a principal having several agents to investigate and report to him, in case the reports should differ, was discussed, (p. 523.)
Lyon’s testimony went to the jury under the following instruction:
“Practically the sole question for determination by you is as to whether or not the Larabees and Holdridges or any of them accepted the process in question. In this connection, you are instructed that the question as to whether or not the process involved in this action is valuable or not valuable is not an issue in the case. Evidence, however, with relation to whether or not the process was valuable, or what it purported to be, is competent and material so far as it tends to prove or disprove the issue as to whether or not there was an acceptance by the defendants of the process or such an acceptance of the terms of the offer as would constitute a binding contract.”
Plaintiff was entitled to the benefit of Lyon’s testimony, and the instruction given was correct. The privilege did not extend, however, to license to pick and choose which one of several qualified witnesses should alone furnish testimony of the character indicated, as tending to prove or disprove the issue whether there had been acceptance of the process.
Plaintiff produced as a witness O. H. Swearingen, who was plaintiff’s attorney from the time the contract was executed until shortly after November 5, 1918. Swearingen testified that within a month, and possibly within two weeks, after the contract was signed (August 26,1918), he met the Holdridges on a street corner while he was on the way to lunch, and Holdridge, Jr., said they were going on with the process, but would need more time, as the Larabees had too many irons in the fire. About three or four days after October 11 Swearingen asked Holdridge, Jr., what had been done about the contract, and Holdridge, Jr., said, “Well, we’ll take the process. Mr. Conry knows we have taken the process.” . About twenty days before the death of Holdridge, Sr., Swearingen saw Frank S. Lara-bee, who said the matter was practically settled, but his brother would be away for a day or two, and he wanted Swearingen to come back when his brother returned. Between October 8 and October 15 Swearingen saw both the Larabees, asked if they had made up their minds, and was told they were of a mind about the process, the process was all right, and they knew they would take the process when they got the contract. It was shown, however, that Swearingen was in communication with his client by letter. On October 5 he wrote a letter saying the Larabees were out of the city, and concluded the letter with, “Have heard they intend to take the process.” On October 8 Swearingen wrote, saying one of the Larabees was up in the air, was nervous, and could give no help; that the other was in Colorado; that Holdridge, Sr., had died, and that Holdridge, Jr., could not be seen for a day or two. On October 15 Swearingen wrote that he had made two trips to the office of the Larabees and neither' one was in, that Holdridge, Jr., was not in his office, and that he would see Holdridge, Jr., at 9 a. m. the next day. Swearingen testified he wanted to close the contract, but “they wouldn’t set a time for closing.” The letters show that as late as October .3 Swearingen’s information respecting acceptance of the process was hearsay. There is no report in any of his letters of any conversation with Holdridge, Jr., or the Larabees giving even faint hope of acceptance, and the letter of October 15 shows he failed to secure acceptance before the living buyers disposed of the contract on October 16. The jury made Swearingen’s testimony the basis of findings of determination and announcement of acceptance. They might not have done so had the excluded evidence been admitted.
Plaintiff says declarations of the buyers against interest were admissible and their self-serving declarations were not admissible. The statement is true, but it does not dispose of the matter. No buyer ever made to the seller, or to any one for him, anything resembling announcement of decision to take over the process which at that time and by that means constituted definite exercise of privilege to accept or reject, and so fixed the rights of the parties. The petition pleaded acceptance on or about October 16, the date of the assignment to Slaughter. The jury were told that acceptance of the process could be in any manner which indicated desire and intention of the buyers to take over the process, and might be by way of assignment of their interest in the contract without the seller’s consent. The verdict and special findings adopted October 16 as the date on which acceptance became indisputable. There was no communication between seller and buyers on that day. The assignment was simply an incident in a course of conduct from which the fact of acceptance or nonacceptance was to be inferred. The probative force of the incident as a fact warranting an inference of acceptance depended, as the court recognized, on desire and intention of the assignors; and as the case was submitted to the jury, statements of the buyers indicating they had no intention or desire to accept the process were very important, .and should have been admitted, to be weighed with statements indicating they did have such intention or desire. Besides that, under the circumstances, ascertainment of the real intention and desire of the buyers following the test would go far toward determining the question of acceptance or rejection of the process. As indicative of probable intention, plaintiff introduced in evidence reports made, advice given, opinions expressed and statements made to and by the buyers in the course of conversations. Letters and other documents would also have been competent, but no writing tending to show acceptance was discovered in the files of the deceased buyers. As indicative of probable intention, defendants tried to introduce othér reports made, advice given and opinions expressed to the buyers. They were clearly admissible. Defendants also offered to prove declarations, verbal and written, of the buyers, or some of them, not to establish truth of what was said or written, but to show probable intention, as bearing upon the ultimate issue of acceptance or rejection. After due consideration, the court has reached the conclusion that, under the limitation indicated, to be stated to the jury in the court’s instructions, the evidence was admissible. The attitude of the court toward admissibility of such evidence was declared in the case of Gordon v. Munn, 87 Kan. 624, 125 Pac. 1.
The jury were asked to state when, where and in what manner each buyer, except Holdridge, Sr., determined and announced to plaintiff, or some one for him, that he desired to take over the process. The answer as to Holdridge, Jr., was, “Thursday, exact date unknown, Eleventh and Main, Kansas City, Mo., to Swearingen.” What this conversation was has been stated. It may have occurred before the test run was made.
Swearingen was one of plaintiff’s witnesses in chief, and testified to conversations occurring with or in the presence of all four buyers. All the conversations occurred while he represented plaintiff. When plaintiff rested, defendants read to the jury plaintiff’s letters, which his counsel had not seen. Plaintiff called Swearingen in rebuttal, and for the first time Swearingen gave the most important conversation of all. After he ceased to represent plaintiff, and one day near Christmas, 1918, he was in Fred D. Larabee’s office. Plaintiff was there, and Swearingen listened to a long and loud conversation between Larabee and plaintiff, the pertinent portion of which follows:
“He, Mr. Corny, said, ‘.You fool around here, and I will close you all out.’ Mr. Larabee said, 'You can’t do that, Mr. Conry. That process belongs to us. You can’t do that.’ ”
The jury found that at the time and place and in the manner disclosed by this testimony, Fred 1). Larabee determined and announced that he desired to take over the process. Credibility of the witness was a matter for the jury to determine, but the jury’s answer was not true. Larabee was not announcing acceptance of a pending offer. He was warning plaintiff that ownership of the process was already a closed subject.
When asked when, where and in what manner Frank S. Larabee determined and announced to plaintiff, or some one for him, that he desired to take over the process, the jury answered: “By failure to reject contract of August 26, 1918, at expiration of time specified.” The logic of the answer is this: The contract required Frank S. Larabee to announce at conclusion of the test run whether he desired to take over the process. He did not make an announcement. Therefore he did announce that he desired to take over the process. This finding of the jury was doubtless returned under the influence of an erroneous instruction given by the court, to be considered presently.
The assignment of the contract to Slaughter made on October 16, 1918, expressed just this and no more: On payment of the consideration, the assignors would assign and deliver the contract to the assignee or his appointee. A natural inference from the giving of the assignment was that the buyers did not desire to avail themselves of privilege conferred by the contract to announce acceptance, pay the price, and so acquire the process, and were passing the privilege on to Slaughter. The court, however, by its instructions, sedulously pressed the assignment upon the attention of the jury as sufficient evidence to establish acceptance.
The jury were told that acceptance of the process might be by claim of ownership or exercise of ownership, by way of assignment of interest in the contract. Subsequently the jury were told .that an assignment, with plaintiff’s consent, to help him clear title to the process — something defendants did not claim — would not “in and of itself” constitute acceptance, and if assignment were made for that purpose, and not “in divesting themselves of any ownership which they had theretofore acquired in said contract,” then the assignment could not be considered as tending to prove acceptance. Later the jury were told the buyers could not assign the contract until they had acquired and accepted the process — except to clear title — and unless plaintiff consented, assignment of the contract might be considered as a fact tending to prove acceptance of the process. In explanation of this instruction the court said the buyers could not get anything which they could transfer until they accepted the process. This instruction was numbered 16. Instruction No. 21 was that as long as the contract remained executory it was not assignable; that until the process was accepted and obligation of the buyers to pay the price became fixed, they could not assign the contract to any other person; and an assignment without plaintiff’s consent might constitute acceptance of the process.
In instruction No. 22 the jury were told the buyers had the option to accept the process and pay the price, or to turn back the process and keep it secret; and if the buyers disabled themselves from turning back the process “by selling the same without the consent of Conry,” then they were bound to perform the alternative permitted by the option — which meant pay the price.
The court told the jury that, under the contract, it was the duty of the buyers to announce acceptance or rejection of the process, and that failure to announce acceptance would not, in and of itself, constitute rejection. The jury were then advised, in instruction No. 23, to this effect: When property is sold subject to test, failure to reject the property within the time designated in the contract, except there be extension of time by agreement on valid consideration, will constitute an acceptance of the property. In instruction No. 25 the court told the jury the buyers could not assign the contract without plaintiff’s consent, because the contract was personal to the buyers, and in instruction No. 27 the jury were told nobody could accept the offer contained in the contract except the buyers to whom it was made.
It would have been strange if this harping on the assignment had not constrained the jury to believe that making the assignment constituted acceptance of the process, but the instructions are open to graver criticism. Interpretation of the assignment was a matter of law for the court. It did not express or profess acceptance of the process, or claim of ownership of the process, or exercise of ownership over the process. The court did not choose to interpret the assignment to the jury, and the instructions which spoke of exercise of ownership by assignment of the contract gave the assignment an unwarranted signification.
Instruction No. 22 was based on a fiction. The contract gave the buyers no option to “turn back the process,” as the court said, and it was idle to speak of returning communicated information from mind to mind, as a physical object might be returned from hand to hand. The instruction served, however, to introduce .the subject of a sale of the process without plaintiff’s consent. The court gave no instruction advising the jury respecting the legal distinction between sale of the process as property and an assignment of the contract. Without such an instruction the jury were not likely to make the distinction, and were likely to understand the instruction as referring to assignment of the contract.
A portion of instruction No. 22 reads as follows:
“Where a party to a contract has an option between two alternatives, and such party places himself in such a position that he cannot perform one of the alternatives, he will be bound to perform the other.”
Plaintiff defends the instruction by citing two decisions. In the case of Texas & Pacific Railway Co. v. Marlor, 123 U. S. 687, 702, a railroad company issued bonds secured by mortgage on net income of certain of its lines. The bonds provided for interest at the rate of seven per cent per annum, payable annually on the first day of July of each year. If net earnings in any year were not sufficient to pay seven per cent interest, then scrip might, at the option of the company, be issued for interest. Interest fell due on July 1, 1882 and 1883, and was not paid for lack of earnings. Option to issue scrip was not exercised. In October, 1883, the company undertook to issue scrip, which a bondholder refused, claiming he was entitled to money. The decision was that interest was due and payable on July 1. If interest were not paid in money on that day, the company was bound to exercise its option to pay in scrip, on that day, or lose privilege to pay in scrip.
In the case of Irving v. Bond, 76 Neb. 293, the owner of a dwelling contracted for labor and material for improvements, for which he was to pay $1,225; $225 were to be paid in cash, and the remaining $1,000 by conveyance to the contractor of another house. Before the improvements were completed the house was sold for its value, $400. The contractor filed a lien on the dwelling and brought an action either to foreclose the lien or to compel specific performance. Specific performance could not be awarded, and the owner of the dwelling was charged with the contract price of the improvements, $1,225. In the opinion the court said:
“As we understand the contract, and as we have no doubt that the parties understood it, appellants had an option to pay $1,000 of the contract price in money or by conveyance of the property in question. Having voluntarily deprived themselves of the power to make a conveyance, they have now no alternative but to satisfy their obligation in cash.” ■ (Irving v. Bond, 76 Neb. 293, 294.)
There are other decisions of the same tenor, but they have no application to the present controversy.
In each of the cases cited there was a performance day: in one case July 1, and in the other when the improvement was completed. On performance day a definite obligation had to be met: in one case payment of interest, and in the other payment of cost of the improvement. The debtor had choice of methods of discharging the obligation: in one case by cash or scrip, in the other by cash or deed; but the debtor was obliged to discharge the debt by one means or the other, and if he did not or could not adopt one method he was obliged to adopt the other. Under the contract of August 26, 1918, what was performance day, and what was the obligation of the buyers to be discharged on that day, corresponding to the debts in the cited cases? Performance day was at the end of a test run to demonstrate the synthetic gasoline process. The obligation to be discharged was the converse of paying an existing debt. It was an obligation to determine and announce adoption of a course of conduct involving consequential liability. Performance consisted in determining and announcing the adopted 'course. The buyers had a choice with respect to what course they would adopt and announce. They could choose to accept the process and pay the price, or to reject the process and keep it secret, and they were obliged to adopt and announce one course or the other. What did the buyers do? The petition tells what they did. They exercised their option, adopted one of the alternative courses, and on or about October 16, 1918, accepted the process. By doing so they relieved themselves from all liability for disclosure of the process, and the only liability under which they rested was such as might result from nonpayment of price. Disclosure of the secret was merely an item of evidence tending to prove acceptance. It was not ground of liability for payment of price, and the result is, instruction No. 22 was clearly erroneous and highly prejudicial.
Instruction No. 23 was intended to apply to the process (property), the contract and the test involved in the lawsuit the jury were considering, and the court said failure to reject would constitute acceptance. There was no sale of property subject to test. Whether or not there would be a sale depended on acceptance after test. Failure to reject the process did not constitute acceptance. The buyers became obligated to pay the price if and when they an nounced decision to take the process. If they made no announce-. ment either way, the penalty was not payment of price. The buyers’ remedy was to force decision by demand for announcement, or by tender of performance, either of which would foreclose privilege to purchase unless the buyers paid the price.
The contract gave the buyers no property in the process. The only way the buyers could get property in the process was by announcing acceptance and paying the price. The contract did, however, confer on the buyers privilege to acquire the process by announcing acceptance and paying the price. Until the test run matured obligation to announce acceptance or rejection, the contract was personal to the buyers, because they were intrusted with confidential information. In case of acceptance and payment of price, however, it was of no concern to the seller how widely the secret was bruited, and he could have no personal preference for the money of one buyer rather than the money of another buyer. Therefore, privilege of announcing acceptance and paying the price was assignable by the buyers without the seller’s consent. The buyers could not assign to anyone else their obligation to the seller to keep the process secret. That obligation remained until price was paid, and remained in perpetuity in case of rejection. The assignee could acquire no property in the process unless he paid the price. Therefore, assignment jeopardized no interest of the seller, and to forbid assignment would be to deprive the buyers of a valuable right without justification. In any event, assignment of the contract by the buyers, ineffectual as to the seller without his consent, would not necessarily involve or indicate acceptance of the process.
There is a contention that the third paragraph of the contract forbade assignment until after price was paid. There is nothing to indicate the parties had such a purpose specifically in mind, and the effect of the provision was merely that on payment of price the seller would make proper transfer to the buyers or their assignee.
The jury found the buyers exercised dominion and ownership over the process by disclosure of the nature of the process to third persons. Disclosure did not necessarily involve or indicate exercise of dominion or ownership. The contract undertook to protect against disclosure after declared rejection." Whether disclosure involved or indicated exercise of proprietorship depended on a variety of circumstances and considerations, and the finding was doubtless induced by the erroneous instructions relating to assignment. The same is true of findings that the buyers were estopped by the assignment of October 16, 1918, from denying that.they determined and announced to plaintiff that they desired to take over the process.
The foregoing is sufficient to show the verdict and judgment cannot stand. The court’s conclusions respecting some subjects discussed in the briefs will be announced without comment.
The district court had jurisdiction of the action. The action was based on a contract in writing, and the five-year statute of limitations applies. There is nothing in the form or content of the contract establishing agency of one buyer to accept the process for others and so obligate them to pay the price. Notwithstanding death of Holdridge, Sr., other buyers could accept, and any buyer who accepted is liable for the price. Liability to pay price attached on acceptance of the process, and it was not necessary for the seller, on nonpayment of price, to make tender in order to put accepting buyers in default. McCabe was a competent witness for plaintiff. Plaintiff was not a competent witness to show the attitude of Fred D. Larabee toward plaintiff’s use of the process at Craig. No inference is to be drawn respecting soundness or unsoundness of instructions requested or given from the fact they have not been referred to.
The judgment of the district court is reversed and the cause is remanded for a new trial.
APPENDIX.
THE contract.
This Agreement, Made and entered into in Kansas City, Missouri, by and between Jesse Conry, hereinafter called the first party, and F. S. Larabee, F. D. Larabee, T. J. Holdridge, and T J. Holdridge, Jr., hereinafter called the second parties, Witnesseth:
That Whereas, The first party claims to have information with reference to a process for manufacturing gasoline from natural gas which is unknown to second parties, but hereafter said first party is willing to impart such information under proper safeguard to the second parties for the consideration hereinafter specified; and
Whereas, The parties hereto have installed at Independence, Kansas, an experimental plant for the purpose of using the said process for manufacturing gasoline from natural gas;^ and
Whereas, The second parties are desirous of acquiring the said process and the right to use the same if the use of the same should prove to be commercially profitable;
Now Therefor, It is agreed between the parties hereto: First. The said experimental plant shall be so enlarged and improved under the direction of the first party, at a cost of not to exceed five hundred dolíais ($500), which shall be paid by the second parties, that it will be useful and suitable for the manufacture of gasoline from natural gas by means of said process in sufficient quantities and under such circumstances as to demonstrate whether or not manufacturing gasoline by said process in practicable and profitable quantities.
Second. After said plant shall have been so enlarged and improved as aforesaid, it shall be operated for fifteen (15) days at the expense of the second parties, under the direction of first party. Said operation shall begin within five (5) days after the second parties shall have been notified that it has been completed and is ready for operation.
Third. At the end of said fifteen (15) days the second parties shall determine and announce to the first party whether they desire to take over the said process or not. If the second parties should announce they do not desire to take over the said process, then they shall surrender the said plant and all rights to the said process to the first party, and this agreement shall be terminated. If the second parties shall announce that they decide to take over said process, then they shall pay to the first party fifty-seven thousand five hundred dollars .($57,500) in cash at the office of O. H. Swearingen, in Kansas City, Missouri, and thereupon first party shall assign and transfer to the second parties, or their assignee, the right to use the said process for manufacturing gasoline from natural gas, and all plants and appliances -for plants in connection therewith, and all rights to any improvements or any inventions in connection with said process.
Fourth. If the second parties shall not take over the said process as hereinbefore provided, they shall never divulge in any manner any information which they may have received from the said first party, or in any manner in connection with the operation of said plant concerning the nature of said process. ■ In case the second parties shall decide to take over said process as hereinbefore provided, then in addition to payment of said sum of money to the first party, they shall pay J. L. McCabe in full for any and all commission which he may claim for making the sale of said process, so that the first party shall be in no way obligated to said J. L. McCabe in any manner on account of the sale of said process.
Fifth. The first party shall not divulge the nature of the said process to any person or persons other than the second parties or their duly authorized agents until the second parties shall have announced as hereinbefore provided their intention to take over the said process, or their intention not to take over said process. If the second parties shall announce their intention to take over the said process, and take the same over in accordance with the terms of this contract, then the first party shall never in any manner divnlve the nature of such process to any person or persons, firm or corporation whatsoever, except under the authority from the second parties or their assigns, given either expressly or by implication, and in case he should divulge the nature of such process in violation of this contract, he shall then pay to the second parties the sum of all moneys which have been paid to him hereunder.
Sixth. It is mutually understood and agreed, by and between the parties hereto, that should the second parties fail and refuse to pay the first party for the information obtained, as hereinbefore provided, then the said first party-shall have the right to enjoin the said second parties, or either of them, or any person claiming by, through or under trem, from the future use of said process, or the sale of the gasoline, the same to be obtained through any court of competent jurisdiction, without bond therefor except such bond as may be required by such court for its costs.
Executed in quadruple this twenty-sixth day of August, 1918.
[Signed] Jesse Coney.
F. S. Larabee.
F. D. Larabee.
T. J. Holdridge.
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The opinion of the court was delivered by
Dawson, J.:
These appeals are a sequel to Leinbach v. Dyatt, 112 Kan. 782, 212 Pac. 894, some features of which must be rehearsed to get a clear understanding of the matters now presented.
On and before the beginning of the year 1919, J. B. Dyatt owned some 16,000 acres of land in Sherman county. The property was incumbered by a mortgage held by the North American Insurance Company for $125,000 or more, on which Dyatt had made default. The mortgagee brought suit in the federal court to foreclose, and on January 10, 1919, a decree was entered ordering some 10,640 acres of the Dyatt lands sold to satisfy the judgment. On March 8, 1919, these lands were bought in by the judgment creditor at the execution sale. As Dyatt had eighteen months in which to redeem, he set about the project of selling these and other lands, and on April 2, 1919, entered into an exclusive agency contract with the plaintiff, C. A. Leinbach, in which the latter agreed to conduct an auction sale of the lands. The contract stipulated that Leinbach should have 10 per cent of the sale price of all lands sold; terms of sale were to be 25 per cent in cash, balance on time. Lands were to be delivered to purchasers free of all incumbrances.
Pursuant to this contract, Leinbach advertised the lands and employed an auctioneer to sell them. Andrew Dyatt, a brother of the owner, acted as clerk of the sale. Some 13,280 acres were sold for an aggregate amount of $292,000. With the consent of J. B. Dyatt, and with the knowledge of Andrew Dyatt, Leinbach himself purchased 2,880 acres of these lands at $35 per acre, or $100,800. A dis- • pute arose over the exact amount due Leinbach as commission, but this was settled by Leinbach and Dyatt, it being agreed that Dyatt should pay Leinbach $2,000 in cash and give him credit for $25,200 as the equivalent of the 25 per cent cash requirement on the lands purchased by Leinbach. Accordingly on May 9, 1919, four days after the auction, a contract of sale was executed by Leinbach and J. B. Dyatt acknowledging Leinbach’s payment of $25,200 and obligating Dyatt to convey the lands (2,880 acres) by deed of general warranty to Leinbach, and to accept a ten-years’ note and mortgage on the property for $75,600 from Leinbach as the balance of the purchase price. It was also stipulated that possession was to be given within two weeks from the date of the contract, May 9, 1919. Andrew Dyatt knew of this contract and was apprised of its terms, yet he entered into a fraudulent agreement with his brother, J. B. Dyatt, to deprive Leinbach of the benefits of his contract of purchase; and to accomplish that purpose Andrew Dyatt on May 19, 1919, took a conveyance from J. B. Dyatt of the lands involved herein and also the other lands covered by the decree of foreclosure and sale in the federal court. After Andrew Dyatt obtained a conveyance of the land from his brother he effected "some sort of a bargain with the North American Insurance Company about August 15, 1919, whereby the proceedings in the federal court were set aside (this fact has to be inferred) and Andrew Dyatt paid $50,000 (so alleged, and conceded by demurrer) on the original mortgage indebtedness covering the Dyatt lands in controversy and other lands and gave his own note and mortgage for $90,000 as a renewal of the remainder of the original indebtedness of J. B. Dyatt to the insurance company.
The foregoing covers the principal matters which led up to the first chapter of this litigation, which was reviewed by this court in Leinbach v. Dyatt, supra. That action was for specific performance of the contract for Leinbach’s purchase of 2,880 acres of the Dyatt lands, or in the alternative for a money judgment. In that action Leinbach alleged, that Andrew Dyatt purchased the lands with full knowledge of Leinbach’s rights and with the fraudulent purpose of defeating them. Andrew Dyatt’s answer was a general denial of all the allegations of fraud; and accompanying his answer he filed a cross-petition alleging that he was the unqualified owner of the lands — ■
“by and through a conveyance from the owner thereof, which owner had the title thereto and the exclusive possession thereof, at the time of the conveyance of the same to this defendant, that at the time this defendant became the owner of such lands, he went into and took possession of the same, that he now has the open, the adverse, the exclusive and the notorious possession of such lands, and that he and the prior owners of the same have continuously and uninterruptedly had such possession, having and claiming title thereto, for more than twenty-five years prior hereto.”
Andrew Dyatt’s cross-petition continued in part:
“That the plaintiff, C. A. Leinbach, makes claims of rights to such lands, of interests therein and of liens thereon, under and by virtue of pretended contracts, . . . that this defendant is not a party to such contracts, and that he had no knowledge thereof until long after the time of their pretended execution ...
“That the title to such lands should be quieted in this defendant against all claims of the plaintiff, and that this defendant should be adjudged the sole, the absolute and the unqualified owner of such lands, free from all of the claims of the plaintiff herein.”
The trial court found:
“8. That Andrew Dyatt had knowledge of the material contents of Exhibits B and C to the petition herein before he contracted for the purchase of the lands involved in this controversy. '
“9. That defendant, Andrew Dyatt, entered into á fraudulent agreement with the defendant, J. B. Dj^att, for the purpose of depriving the plaintiff herein of his rights under the terms and conditions of Exhibits B and C, attached to plaintiff’s petition, and took a conveyance to the lands in question.”
The trial court found and determined that specific performance could not be decreed because the existence of the mortgage on the lands contracted to Leinbach and other lands held by the insurance company rendered such relief impractical, and judgment was awarded to Leinbach for $25,200 and interest, and providing also—
“That said judgment shall be a lien upon the land described in Exhibit B, subject to the mortgage to the defendant insurance company; that said lien shall be superior to any title, lien or interest therein by any of the defendants, save and except the rights of the insurance company therein under and by virtue of their said mortgage.”
After the judgment was affirmed by this court in Leinbach v. Dyatt, supra, Andrew Dyatt instituted further proceedings in the district court, viz.: He filed an action against the sheriff to enjoin that officer from selling the land to satisfy Leinbach’s lien, and for other .relief to be noted presently. This is case No. 25,479. He also filed two motions to vacate and correct the judgment in the original case, which motions were merely other methods of seeking substantially the same sort of relief prayed for in the case against the sheriff. These constitute case No. 25,478.
In his petition against the sheriff, Andrew Dyatt narrated the antecedent litigation, setting up the pleadings and judgment in Leinbach v. Dyatt, supra, and alleged that the judgment was void in so far as it declared the claim of Leinbaeh to be superior to any lien or interest of Andrew Dyatt, and that such an adjudication was outside the issues, and that the only judgment the court could enter or intended to enter was one holding that Leinbach’s claim was superior to any title of Andrew Dyatt.
The petition further alleged the former existence of the mortgage covering most of these and other lands of J. B. Dyatt, recited the foreclosure proceedings and sale of the lands on March 8, 1919, by decree of the federal court, and that on May 19, 1919, Andrew Dyatt received a conveyance of them, together with possession from J. B. Dyatt; and that on August 15, 1919, he paid the North American Life Insurance Company $50,000 in cash and gave it his note for $90,000 and executed a mortgage on the lands (about 10,080 acres) as security therefor. Plaintiff further alleged:
“That the rights being asserted herein arise largely by reason of the subrogation of Andrew Dyatt to the rights of said North American Life Insurance Company growing out of said mortgages. That by virtue of the payments made by Andrew Dyatt, plaintiff herein, to said North American Life Insurance Company upon the said decree obtained in the United States district court affecting all of said lands covered by said mortgage (which includes specifically all of the lands sought to be affected by said order of sale, except as aforesaid) as well as by the payments of interest upon said mortgage of $90,000, together with the payments of taxes upon said land and payments upon the said principal sum, all of which are hereinafter more specifically set forth, Andrew Dyatt has become and is subrogated to the rights of the said North American Life Insurance Company under the said first mortgage, which was foreclosed in the said suit pending in the United States district court, and that said Andrew Dyatt holds and possesses á lien against all of said lands (including specifically the lands sought to be affected by said order of sale) which lien is paramount and senior to the lien of the defendant C. A. Leinbach.”
Additional recitals in the petition told of another mortgage on one quarter section of the J. B. Dyatt lands which Andrew Dyatt paid off and for which he similarly claimed rights of precedence by subrogation. Appropriate allegations were also made covering items of payment of interest and taxes, and the fifth and fourteenth amendments to the federal constitution were invoked. The prayer was for subrogation to the rights of the original mortgagee; and for an equitable allocation of the amounts paid and still to be paid on the mortgage between the lands subjected to Leinbach’s lien and the other lands covered by the original mortgage; and that Andrew Dyatt should be adjudged to be rightfully in possession and to be entitled to the rights of a mortgagee in possession, and that the sale under Leinbach’s original judgment be enjoined until Leinbach should pay an equitable amount under Andrew’s demand for allocation and for other appropriate relief.
A demurrer to the petition in the case against the sheriff was sustained, and the motions to vacate and correct the judgment in the original case were overruled.
Hence these appeals.
It is quite true, as counsel for Andrew Dyatt contend, that in the •litigation which culminated in the judgment which was affirmed by this court in Leinbach v. Dyatt, supra, “the question of Andrew Dyatt’s rights in these lands as a mortgagee in possession was never hinted at either by issue tendered, by argument or otherwise.” Andrew Dyatt did set up his possession and asserted his right of possession by virtue of the conveyance of May 19, 1919, from his brother. His possession originated on that date and from that source. He did not acquire possession at .that time by virtue of subrogation to the rights of the North American Life Insurance Company as judgment creditor or as purchaser at the foreclosure sale in the federal court or as mortgagee. We say he did not, indeed, he could not, for the excellent reason that he entered into possession on May 19, 1919, and did not acquire any rights of any sort from or through the North American Insurance Company until about August 15, 1919, when he effected some sort of a deal whereby the original mortgage —notwithstanding all that had transpired concerning it in the federal court — was apparently revived, reduced and renewed.
Appellants contend that Andrew Dyatt, notwithstanding his title was fraudulent as against Leinbach, notwithstanding he was an active participant in that fraud, and notwithstanding his fraudulent title was the only possible foundation for his being recognized by the North American Insurance Company as the holder of the option of redemption with whom it might safely deal for the rehabilitation and renewal of its foreclosed mortgage, is entitled to the rights of a mortgagee in possession. Laying aside for the moment the question whether a title holder who has acquired his title and possession by fraud can strengthen his precaristas situation against the victim of his fraud by thereafter paying off mortgages, paying taxes, paying for improvements and the like, it is not clear how Andrew Dyatt can be regarded as a mortgagee of any sort in possession. The erstwhile mortgagee, the North American Life Insurance Company, in some undisclosed way accepted a renewal of that mortgage from Andrew Dyatt as mortgagor. The fair deduction therefore is that Andrew Dyatt as nominal fee title owner — so far as the insurance company is concerned, at least — is not a mortgagee but the mortgagor whom the insurance company has accepted as its debtor in lieu of J. B. Dyatt and as his successor in title. As to Leinbach, however, Andrew Dyatt’s title and possession, and all his claims which are necessarily based thereon, are fraudulent and void. Before possession can be given effect to strengthen a mortgagee’s 'claim, it is essential that such possession should have been acquired in some lawful manner and without resort to means which equity cannot countenance. (Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610.) Leinbach’s contract of purchase of the land was based on the terms of the auction sale, “land to be delivered tq purchasers free of all incumbrances,” and the written contract of sale between J. B. Dyatt and Leinbach, of May 9,1919, stipulated for “possession to be given within two weeks from date hereof.” Andrew Dyatt knew of those contract terms between his brother and Leinbach; and it was for the purpose of defrauding Leinbach of the benefits of that contract that the title and possession of J. B. Dyatt were transferred to Andrew Dyatt.
With these outstanding facts clearly developed, the pertinent law is not far to seek nor difficult to apply. As to conveyances procured by fraud, it is text-book doctrine that—
“The law therefore will not permit the transfer to stand as a security for the amount paid to the debtor, or for the sums subsequently paid to creditors, even though he thereby pays off a mortgage, or a debt contracted in the purchase of the property. If the property assigned consists of a coñtract to erect a building, he cannot claim even what he paid for labor and materials in doing the work. No allowance can be made to an assignee for his services under a fraudulent assignment, or for the sum paid to counsel after the lien of the creditors had attached.” (Bump on Fraudulent Conveyances, 4th ed., p. 605.)
With reference to the futility of a payment of a mortgage by a transferee of title fraudulently obtained as a basis for subrogation or indemnity, Bump’s text quoted above cites Railroad Company v. Soutter, 80 U. S. 517. That was a case where a group of railroad bondholders caused a fraudulent sale of a railroad to be made and bought in the property to the prejudice of other creditors. They then paid off part of the railroad’s bonded indebtedness. When the sale was set aside as fraudulent, the rogues who had participated in the fraud claimed to be entitled to reimbursement through subro gation to the rights of the creditors whose claims they had paid. In the supreme court’s opinion, Mr. Justice Bradley, speaking for a majority of the court, said:
“The bare statement of the claim, even presenting it in the language of the bill itself, seems to us sufficient to condemn it. Who are the complainants? Are they not the very bondholders, self-incorporated into a body politic, who, through their trustee and agent, effected the sale which was declared fraudulent and void, as against creditors, and made the purchase which has been set aside for that cause? Was it ever known that a fraudulent purchaser of property, when deprived of its possession, could recover for his repairs or improvements, or for incumbrances lifted by him whilst in possession? If such a case can be found in the books, we have-not been referred to it. Whatever a man does to benefit an estate, under such circumstances, he does in his own wrong. He cannot get relief by coming into a court of equity. By the civil law, the possessor, even in bad faith, may have the value of his improvements, if the real owner choose to take them. The latter has an option to take them or to require their removal. But this rule has never obtained in the common law, nor in the sj^stem of English equity. One of the maxims of the latter system is, ‘He that hath committed iniquity shall not have equity.’ And various illustrations of it are furnished by the books.” (p. 523.)
While three of the justices dissented, the majority doctrine has never been qualified by the United States supreme court, and, indeed, it has been so frequently cited and followed that it may be regarded as fundamental in American equity jurisprudence. See Rose’s Notes in 20 L. Ed., appendix, pp. 698-701. To the same effect were Wiley Bank & Co. v. Knight et al., 27 Ala. 336, and Thompson v. Bickford, 19 Minn. 17.
In Goble v. O’Connor, 43 Neb. 49, there was a sale in foreclosure of mortgaged real property. O’Connor induced another bidder to c^ase bidding, paying him $200 therefor, whereby O’Connor was enabled to buy the property at an undervalue. He thereafter paid off a tax lien for $805.43, paid $103 to redeem the property from a tax deed, paid city and county taxes in the sum of $149.85, and the further sum of $303.47 for repairs and improvements on the property. When the sale of the property to.O’Connor was set aside on the ground of fraud, he demanded reimbursement for the purchase price plus the various sums paid out by him to discharge liens, incumbrances and taxes. The trial court held:
“The court further finds as a matter of law, and because of the aforesaid fraudulent acts of the defendant O’Connor at said sale, that he, the said defendant O’Connor, is not entitled in this action to be reimbursed any of the moneys he has as aforesaid expended in satisfying said decree, or in payment of taxes, or otherwise, and that he is not herein entitled to have a lien on said property therefor, or any part thereof, and that the plaintiffs are not required in this action, as a condition precedent to the relief herein demanded, to in any manner refund to him any of said sums, to which conclusion of law defendant excepts.” (p. 56.)
In affirming the judgment the supreme court of Nebraska said:
“The appellant, by his own fraudulent acts, has placed himself in such a position that the court can afford him no relief. All these payments were made in pursuance of, and as a part and in completion of, the sale which was made to him, and which was fraudulent as to the rights of appellees because of his wrongful acts and practices at and during such sale, and his right to be reimbursed all payments and expenditures must arise out of the sale which was tainted with his fraud and wrong, and void in consequence thereof, and his claim derived from such a source cannot be recognized in any court. To require the appellees to repay what has been paid out by appellant in this case would not be enforcing the rule that ‘he who seeks equity must do equity.’ ‘The rule has no application to cases of actual fraud. It would be against good policy that it should; for it would act as an encouragement to unfair dealing. A man might gain, but he could not lose by his frauds. If he succeeded, he would reap the fruits of his knavery; but if detected, he would be entitled to a return of his money, and moreover to be reimbursed to the value of his improvements.’ (Gilbert v. Hoffman, 26 Am. Dec. [Pa.] 103.) The sale to appellant was void because of his wrongful and fraudulent acts at the time of the sale, and he acquired no title as against appellees, and is not entitled to have the money paid out by him refunded; and this last, not by way of punishment, and not that the court would help or desire to aid appellees beyond the demands of justice and equity, .but because, by his own wrong, the appellant has placed himself in such a position that the court is unable to grant him relief. . . . The decree of the district court is affirmed.” (pp. 59-60.)
The theory of subrogation is an equitable doctrine which can only be invoked by one who comes into court with clean hands. It cannot be invoked by one who has been an actual participant in a fraud connected with the subject matter of the- litigation. The case of Loos v. Wilkinson, 113 N. Y. 485, 4 L. R. A. 353, which at first blush may seem at variance with the authorities cited above, was a case where an accounting for rents and profits was demanded from a grantee of a fraudulent conveyance imwhich fraud the grantee, Wilkinson, was a party. The fraudulent grantee was allowed to offset his outlays for taxes, repairs, and for interest in outstanding mortgages. The doctrine of Railroad Co. v. Soutter, supra, Thompson v. Bickford, supra, and kindred cases had been invoked against any such offset or deduction because Wilkinson had been an active and guilty participant in the fraud. While ruling against this contention, the court said:
“We have carefully examined these authorities, and they furnish very little, if any, countenance for the contention of the plaintiffs. They are all cases where the fraudulent grantee was asking for the active interference of some court for his protection, or for his reimbursement for improvements, for moneys paid in pursuance of the fraudulent arrangement with his grantor, or to discharge incumbrances, or to secure to him the payment of a debt due to him from the fraudulent grantor, or where he was compelled to account for profits which he had actually made, or could have made, out of the property fraudulently conveyed; and the equitable rule was enforced that ‘he who hath committed iniquity shall not have equity,’ which is merely another way for saying ‘that one who comes into a court of equity seeking its aid must come with clean hands.’ But in none of them was the question really involved or discussed with which we are now dealing, with the possible exception of three cases to which we now call attention. . . .
“In Thompson v. Bickford, the court said: ‘In equity, a conveyance set aside as constructively fraudulent is upheld, in favor of one not guilty of actual fraud, to the extent of the actual consideration, and is vacated only as to the excess. But if there be actual fraud there is no difference between law and equity. The conveyance is considered as void ab initio, and set aside entirely, and cannot stand as security to the fraudulent grantee. It is the same thing as if no deed had ever been executed.’
“In the head-note it is stated that the rents and profits and the proceeds of the parcel of land sold were liable to the same extent as the land, and that the grantee was accountable for them to the grantor’s creditors, without deduction for his demands, or for money paid for taxes, or to extinguish liens or incumbrances placed thereon by the grantor. ... So far as it was held that the fraudulent grantee could not claim reimbursement for the liens or incumbrances paid, or that he could not have satisfaction of the indebtedness from the fraudulent grantor to him, it was simply an enforcement of the general rule in harmony with all the other cases.” (pp. 492, 493.)
In Roller Mills v. Ward, 6 N. D. 317, Ward and Hall conveyed some 1,320 acres of land to Patterson in fraud of their creditors, in which fraud Patterson - was an active participant. Paulson, a creditor, attacked the conveyance as fraudulent‘and it was so declared. ' Patterson, the grantee of the fraudulent conveyance, purchased Paulson’s judgment. He then paid off liens and incumbrances amounting to $15,000. Then other judgment creditors levied executions on the lands as the property of Ward and Hall. Patterson claimed rights of subrogation. As to the judgment which he had purchased from Paulson, his claim to subrogation was allowed, since it was not connected with the original fraud; but as to the mortgages it was held that he was not entitled to subrogation. The case is so instructive and convincing that we take space to quote from it at some length:
"At the time of the transfer of the lands to Patterson, and as a part of the transaction, Patterson assumed, by parol, and promised to pay, preexisting liens and encumbrances against the land, amounting to about $15,000. Upon these claims Patterson has paid, in principal and interest, large sums of money, and he also paid the taxes for one year. Since all these claims so paid were prior and superior to the claims of any and all of these plaintiffs, and since, if not paid by Patterson, plaintiffs would have been forced to pay them before they could realize anything upon their own claims, out of the transferred property, it is urged that these payments by Patterson worked no wrong upon or injury to plaintiffs, and that Patterson should be subrogated to the rights of the parties whose claims he has paid, and that his conveyance should be held good as a mortgage to that extent at least,, and that if a decree be entered for the sale of the lands, as was done by the trial court, such decree should provide that the amounts so paid by Patterson in ex-tinguishment of superior liens be first repaid to him from the proceeds of such sale. Viewed from the standpoint of plaintiffs’ right alone, there is great, almost irresistible, plausibility in this contention. To require that the amount of the liens subsequently paid by Patterson be first repaid to him from the proceeds of the property would leave plaintiffs in exactly the same position as to those claims that they would have held had the fraudulent transfer never been made. It is clear that plaintiffs have no persuasive equities to oppose this contention of the defendant Patterson. But there are other principles of law almost universally recognized by the courts, which must be considered in any adjudication upon the rights of the defendant.
“It must be borne in mind that this is a case of actual fraud, a case where the grantee Patterson actively aided the grantors, the Wards and Hall, in their design to hinder and delay their creditors. Hence the rules that apply in cases of constructive fraud are not applicable to this case. Where the fraud is constructive only, the grantee comes into court with comparatively clean hands, and the courts treat him with leniency. In such cases the fraudulent conveyance has been allowed to stand as security for the purchase price, or for the amount of prior liens or debts of the grantor paid by the grantee, or for taxes paid. . . . Cases may be found, and they are doubtless well and equitably ruled, where a fraudulent grantee, when called upon to account for rents and profits, or for the value of the property received, has been allowed to reduce the recovery by the amount of liens against the property that he has paid and discharged. (Loos v. Wilkinson, 113 N. Y. 485. . . . Bank v. Halsted, 56 Hun 530, 9 N. Y. Supp. 852.) . . . Appellant Patterson relies much upon these cases, but this action is so .different in its nature from these cases from New York that it is evident that the ruling in those cases cannot aid appellant. The evidence in this case shows that the gross value of the crops raised upon the land has been about $12,000 per year. If Patterson were required to account to the creditors of the grantors for this sum, he might then confidently rely upon the above cases.
“It is not the true province of a court of equity to punish a party for fraud. That is left to the courts of law. Neither will it despoil him of his property. But when it becomes necessary for a party to invoke the equity powers of the court to obtain relief from a position in which he has voluntarily placed himself — when it becomes necessary for him to assume the position of actor, and appeal to equity for affirmative relief — then he must come with clean hands.” (pp. 323, 324, 325, 326.)
The court then cites and quotes from Roller Mills v. Ward, supra, and kindred cases, and continues:
“We think these principles must be applied in this case in their full vigor. When the deeds from the Wards and Hall to Patterson were executed, there existed valid liens and incumbrances upon the property conveyed. It was not possible to defraud these secured creditors. Their rights in the property were clearly fixed. But the successful consummation of the scheme to defraud the unsecured creditors, and at the same time secure to the grantors the continual use of the land, and the benefit of the crops raised thereon, required that provision be made whereby the securities would not in the meantime be enforced against the land. Therefore Patterson assumed these incumbrances. ... In pursuance of this agreement, Patterson has paid a portion of these secured claims, but all the payments so made by him were in aid of the original corrupt purpose of defrauding these plaintiffs. They constitute a part and parcel of the original fraudulent scheme, and inseparable therefrom. Therefore, when Patterson appeals to a court of equity to be indemnified for such payments, the relief cannot be granted without a violation of plain principles of equity jurisprudence. These principles .must apply to the taxes also. Both parties knew that taxation was inevitable, and that the taxes must be paid in order to consummate their purposes. It appears that Patterson paid the taxes or a portion of them for one year. But this must be regarded as a voluntary payment by him, in aid of the original fraud.” (p. 328.)
We note that in Lovejoy v. Bailey, 214 Mass. 134, a distinction was made in a case where a mortgage was paid off which discharged a lien on partnership property which had been transferred in fraud of a dormant partner. But the general principle under discussion in the present case was there recognized:
“As to the mortgage for $5,000 which was 'assigned to Clemson and foreclosed by him in the manner reported by the master, it is contended by the defendants that the amount thereof should be allowed to them in the accounting. So far as this claim rests upon any right of the defendants to be subrogated to the benefit of the incumbrance which they have paid by means of a foreclosure, their contention cannot be allowed. What they did was done in furtherance of their fraud as an essential part of their wrongful purpose. They acted in their own wrong; they do not come into court with clean hands, and cannot now invoke the equitable doctrine of subrogation to relieve them from the consequences of their tortious acts. Railroad Co. v. Soutter, 13 Wall. 517; Sands v. Codwise, 4 Johns. 536, 598; Gillespie v. Moon, 2 Johns. Ch. 585, 602; Guckenheimer v. Angevine, 81 N. Y. 394; McCaskey v. Graff, 23 Penn. St. 321; Hays’ Estate, 159 Penn. St. 381; Almond v. Wilson, 75 Va. 613; White v. Trotter, 14 Sm. & M. 30; Connecticut Mutual Life Ins. Co. v. Smith, 117 Mo. 261, 297, 298; Goble v. O’Connor, 43 Neb. 49; Johnson v. Moore, 33 Kans. 90.” (p. 155.)
The last case cited, Johnson v. Moore, supra, is perhaps the closest of our own decisions to the question, here presented. Johnson loaned Moore and wife $745.92 to take up certain notes secured by a mortgage on the Moore homestead, held by Pryor Plank. Moore and wife executed a note and mortgage to Johnson in payment therefor. After the wife’s execution of the mortgage, Johnson altered its terms so as to make it appear to stand as security for another and additional note for $117.45. It being held that the fraudulent alteration vitiated the mortgage, Johnson claimed rights of subrogation for the moneys paid by him to satisfy the earlier mortgage held by Pryor Plank. The court stated the question and answered it thus:
“Second, if the mortgage given to the plaintiff is held to be void, did he acquire a lien upon the homestead to the extent of the money advanced by him to pay off the prior mortgage debt upon the same property, and is he entitled to be subrogated to the rights of the prior mortgages and to a decree of foreclosure? . . .
“If the alteration of the mortgage had been accidentally or innocently made by plaintiff, he might have successfully applied for the application of the equitable doctrine of subrogation. It is well settled, however, that the doctrine of subrogation will not be applied to relieve a party from the consequences of his own unlawful act. . . .
“According to the unchallenged findings of the jury, the alteration of the mortgage by the plaintiff was not inadvertently made, nor was it done for the pui-pose of carrying out the intention and understanding of all the parties thereto, but was evidently made by plaintiff solely to advance his own interests at the expense of the defendants. He sought to extend the liability of the mortgagors beyond what they had agreed that it should be, and his action in making the alteration was not only a fraud upon the defendants, but under the statutes of Kansas constitutes a public offense. The application of the maxim, ‘he that hath committed iniquity shall not have equity,’ forbids the granting of the relief asked for by plaintiff.” (pp. 96, 98, 99.)
Counsel for appellant argue that the present appeals come under the rules of equity announced in Hofman v. Demple, 52 Kan. 756, 35 Pac. 803; New v. Smith, 94 Kan. 6, 145 Pac. 880; and Brooks v. Weik, 114 Kan. 402, 219 Pac. 528. These cases have all been carefully examined. In Hofman v. Demple, the grantee o'f a deed which a wife had executed by duress and which was set aside was given subrogation for a mortgage paid off because the wife delayed so long in bringing her equitable action to set the deed aside that the grantee was misled into believing that she had acquiesced in the fraudulent conveyance. In New v. Smith, when the deed to Mrs. New’s farm was set aside as fraudulent, the grantee, Smith, was given subrogation for the amount of a mortgage which he had paid. But Smith had not been, an actual participant in the fraud perpetrated on Mrs. New. He merely knew she had been defrauded. In Brooks v. Weik, it was very properly held, that where Brooks was swindled out of his property by his own agents, getting in exchange therefor a lot of oil leases on Texas lands, which leases he intended to purvey to a gullible public at advanced prices by fraudulent devices, he was not precluded from equitable redress, since the fraud perpetrated on Brooks had no connection with any possible fraud he may have intended to perpetrate on others in the sale of the leases. In neither of these cases, we think, is there any support for the contention appellant seeks to maintain. By his own fraudulent conduct Andrew Dyatt has gotten himself into a situation where a court of equity must decline to help him. His action in reinstating and renewing the insurance company’s mortgage, in making a payment on the old debt, in paying interest and taxes, were all part and parcel of the original fraudulent scheme and inseparably connected therewith. Without making these payments the original scheme of defrauding Leinbach could not have been consummated and the fruits of that fraud secured to himself; and the result is that the trial court properly left Andrew Dyatt in the predicament in which his wrongful intermeddling with Leinbach’s affairs had placed him, and for which Leinbach was in no way responsible.
This conclusion renders it unnecessary to determine whether appellants’ claims urged here were necessarily involved in the earlier chapter of this litigation and therefore barred under the general principles of res judicata by the judgment affirmed in 112 Kan. 782.
Both judgments are affirmed.
Harvey, J., not sitting. | [
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MEMORANDUM DECISION.
The decision of the court was announced by
Burch, J.:
By stipulation, disposition of this case is controlled by the decision in the case of Bryner v. Reynolds, ante, p. 427. Therefore this cause is remanded to the district court with directions to proceed in accordance with the views expressed in the opinion in the case of Bryner v. Reynolds. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on a breach of contract for the purchase of an issue of improvement bonds which the plaintiff city sold and delivered to the defendant investment company. The defense was that the delivery of the bonds was so long delayed that defendant was not bound to accept the bonds at the agreed price, and that the incidental rights and liabilities of the parties were settled by accord and satisfaction.
The facts were mainly these: In 1919 the city of Washington undertook to pave some of its streets. The defendant, desiring to buy the bonds which would have to be issued to pay for such improvements, offered to advance the funds on condition that it might buy the bonds if they were declined by the state school-fund commission, which by statute had the first refusal, of them. This offer was accepted and reduced to writing on November 3, 1919, the parties stipulating that the bonds should be dated November 1,1919, bearing 5 per cent interest, and should be sold to defendant and paid for at par; and defendant agreed to furnish blank bonds ready for execution and furnish the services of their attorney in directing the legal proceedings, and to pay all other necessary expense incidental to the bond issue without charge to the city. It was also agreed that defendant should advance the money to meet the monthly estimates of the engineer, due the contractor for the work completed during each month, without any interest charge therefor other than that evidenced by the interest coupons on the bonds, predated as of November 1, 1919. It was also stipulated that if the school-fund commission should exercise its preference right to buy the bonds, the city was to reimburse the defendant for the moneys advanced to pay the monthly estimates of completed construction work and 6 per cent interest thereon, and to pay the defendant’s actual expenses, not exceeding $200. It was also agreed that the city should deliver the bonds as soon as it was possible under the law to do so.
Pursuant to this contract the defendant advanced to the city on the engineer’s successive monthly estimates the sum of $27,848.68. The total bond issue was $62,360. Defendant endeavored to speed up the governmental processes of the city so that the bonds might be issued in time to take advantage of the February bond market, which is always more brisk and favorable than it is after March 1, when all nonexempt assets of prospective investors must be listed for taxation. But official action by the city moved too slowly to get the bonds ready for delivery in February. First one city attorney and then his successor had to satisfy themselves of the validity of the proposed bond ordinance and of the form and recitals of the bonds prepared by defendant’s attorney for the adoption and approval of the mayor and council. This necessarily took some time. Then there were assessments to be estimated and levied, and notices given to taxpayers, and the taxpayers had to be accorded the statutory interval to pay their special assessments before the total bond issue could be definitely determined. This necessary but considerable interval of time involved no great hardship on defendant, because by its contract it was to receive the bonds at par, bearing 5 per cent interest dated the preceding November 1, or, failing that, it was to have its advancements returned plus 6 per cent interest thereon. Defendant chafed at the delay because of a declining bond market, and on March 18, 1920, in a letter to the city clerk transmitting the proposed bond ordinance prepared by it for the city’s adoption, and giving instructions touching various details of the proceedings, it added the following:
“There has been some delay in the delivery of these bonds to us, although we have endeavored to do everything possible to expedite the delivery of the same. As we will not receive the bonds until considerably after March 1, as was contemplated at the time we entered into this contract, we are forced to place them on the market at considerable loss. If you are familiar with financial market conditions you can readily see that it will be necessary for us to sustain quite a loss in the sale of these bonds.
“Owing to the fact that we have endeavored to accommodate the city in this change in our contract, which will render the bonds a little less attractive to investors, and the fact that there has been some delay on the part of the city in passing the necessary proceedings providing for the issuance of the bonds, we feel that you should in some way share a part of this loss with us.
“We believe that it would be no more than right for the city to allow us some several hundred dollaré on account of our concessions in this matter.”
On April 19, 1920, the defendant wrote to the mayor:
“It is to say the least a bitter disappointment to us and me personally that the paving bonds have not been delivered long before this date, as was anticipated in the contract at the time it was taken.
“The market is getting worse, and it would be absolutely impossible for us at this late date to dispose of this bond issue at a profit.”
The mayor answered:
“In replying to yours of the 19th inst. will say that we too very much regret that the issuance of bonds has been delayed. The reason for this, however, is that the form of ordinance submitted by your attorney does not meet the approval of our city attorney. Mr. Smith, who was formerly city attorney, refused to approve the ordinance and held that it did not conform to the law. Mr. Frank McFarland, our present city attorney, advised the council in like manner. The city council do not feel justified in passing an ordinance contrary to the advice of the city attorney. If the ordinance is in conformity with the statutes, I would suggest that you have your attorney take the matter up with Mr. McFarland and show him wherein there is no conflict.”
The defendant replied:
“We have your letter of the 20th inst. relative to the delay in the delivery of your paving bonds, also the controversy over the bond ordinance.
“It is somewhat of an unusual occurrence that a city will fail to pass the form ofvbond ordinance prepared by our attorney, as several million dollars’ worth of Kansas bonds have been issued on his ordinances during the last few years without any controversy whatsoever. We do not feel that we are responsible, or should stand the loss that might be incurred through your attorney’s advice to the city to the extent of interfering with the completion of your proceedings when same is submitted by us correctly. We feel that your city has delayed the issuance and delivery of these bonds to such an extent now that we do not feel obligated to accept them on the terms set forth in our contract^ under date of November 3, 1919.
“If your city does not feel satisfied with the passage of the ordinance which has been prepared for us by our attorney it will be entirely satisfactory with us for you tot take up the advancements made to you at 6 per cent interest from their date, and you may keep the bonds.
“We call your attention to paragraph No. 2 in our contract, which provides that the city of Washington agrees to deliver the bonds to us as soon as possible under the law to do so.”
After further investigation by the city attorney as to the operative interpretation of the law touching the form of the bonds, the city clerk on April 27, 1920, advised defendant that a special meeting of the city council would soon be called and the bond ordinance adopted.
On May 3,1920, defendant wrote to the city clerk for certain data concerning the city’s actual and assessed valuation, total indebtedness, etc., for the avowed purpose of completing its records touching the bonds in question, and on May 6 it wrote for a copy of the ordinance as finally adopted, with proof of its publication.
On June 4,1920, the bonds were delivered to the agent of defendant, the same agent who had officiated in its behalf since the making of the contract between the parties, November 3, 1919, and he gave a receipt therefor:
“Received from L. T. Asche, city clerk, Washington, Kansas, $62,360 improvement bonds of said city, for the purpose of registration with the state auditor, to be remitted for when accepted by The Brown-Crummer Company, Wichita, Kansas, according to contract dated Nov. 3, 1919.
“The Brown-Crummer Company,
“(Signed) C. W. Bradberry.”
The record is not clear as to when and by whom the bonds were offered to the school-fund commission, but apparently they had been offered and declined by June 8, as on that date the defendant addressed to the mayor:
“June 8,1920.
“Our Mr. Bradberry has handed us the $62,360 of improvement bonds of your city, which you turned over to him under a receipt stating that we were to remit for the same when accepted by us.
“We wrote you on April 22, owing to the delays attributable only to your city in this matter, we were not obligated to accept them on the terms set forth in our contract of November 3, 1919.
“We have advanced your city $27,848.68 to date, and will hold enough of the bonds at the prevailing market price to reinburse us for the amount advanced your city, together with the legal rate of interest (6%) for funds advanced you.
“We do not wish to appear to be talcing an arbitrary stand in this matter, but do not feel like holding ourselves responsible for a loss due entirely to the city’s action.
“Mr. Bradberry advises us that you intend to draw an additional draft upon our company. The only way we can pay the same is to have an understanding with you that we are to hold sufficient of these bonds at the prevailing market price, plus expenses in the matter, to compensate us for paying the same. We are advised that this draft will be for about $17,000. There will then be a small balance of bonds remaining in our hands, and if you desire us to do so, we will be pleased to sell them on the market, deduct our legal expenses, and remit the balance of the proceeds to your city when the bonds are sold by us.
“Please let us hear from you in regard to this matter, as we do not wish to take any action that would embarrass the city in any way in this matter, but must do everything possible to protect ourselves in the situation which has developed.
“We are enclosing a letter of our attorney setting forth some additional requirements needed to complete the transcript leading up to the issuance of these bonds.”
Under instructions from the city government, the city attorney replied, acknowledging receipt of defendant’s letter and stating that defendant would be held to its contract. In part it read:
“We ask that our draft be paid and that you otherwise comply with the contract, but we will make no promise at this time that binds the city to the payment of any sum of money to you outside of that provided in the contract.”
On June 17, 1920, defendant’s attorney replied to the city attorney, in part:
“The city has not carried out its contract with' us either in spirit or letter and we do not believe that there is any court in this country that would compel us to accept these bonds at this time. We only ask what is right in the matter; that is, that the city repay us the $27,848.68 which we have advanced it, together with interest at the rate of 6 per cent. If the city has funds on hand to repay us this amount and interest at this time we would like to have the same; if not, we can only protect ourselves in the manner indicated in our letter of June 8, 1920, to you, and shall immediately take steps accordingly. The remainder of the bonds are held subject to any disposition you desire to make of the same.”
Eventually the mayor, the city attorney and the president of the city council went to Wichita to meet the managing officers of defendant, and insisted that defendant observe its contract. Defendant offered to give the city 95 cents on the dollar for the bonds less 2 cents on the dollar as commission for selling them, which would net the city 93 cents on the dollar for the bonds. This and other various offers and demands of defendant were declined. About this time plaintiff learned that the bonds could be sold to the Prudential Trust Company, in Topeka, and defendant agreed to send a representative to Topeka with the bonds, and accordingly the bonds were sold by plaintiff and delivered by defendant to the Prudential Trust Company for $57,994.80, plus $2,550 for accrued interest, totaling $60,544.80, which was $1,815.20 less than the agreed price between plaintiff and defendant. As part of this tripartite transaction there was also an arrangement between the parties whereby the Prudential Trust Company withheld enough of the purchase price to satisfy defendant’s advancements to the city, $27,848.68, plus its demanded exaction of interest thereon, $957.05, and this latter sum, together with the $1,815.20 drop below par at which the Prudential Trust Company purchased the bonds, caused a consequent aggregate loss of $2,772.25 to the city.
Hence this lawsuit. Plaintiff set up three causes of action — one relating to the loss attendant on the sale of the bonds to the Topeka company for a less price than defendant had agreed to pay; and another relating to the $957.05 exacted by defendant as interest on its advancements to the city to meet the monthly payments to the contractor pursuant to the engineer’s estimates. A third cause of action, relating to plaintiff’s expenses necessitated by defendant’s alleged wrongdoing, was abandoned.
Jury trial. Defendant’s demurrer to plaintiff’s evidence sustained, and judgment entered for defendant.
Plaintiff appeals, assigning various errors, the chief of which, of course, was the talcing of the case from the jury on a demurrer to plaintiff’s evidence. It may be unnecessary to consider seriatim all the specific errors assigned.
Whether or not there was such delay on the part of the city in taking the various procedural steps leading up to the execution and issuing of the bonds as would constitute a breach of the city’s contract with defendant was surely a fair question for a jury to settle. The governmental processes of a third-class Kansas town are naturally somewhat slow, and they ought to be deliberate. There were resolutions concerning the proposed improvements to consider, debate and to determine upon. Perhaps there were petitions of property owners to consider and dispose of. There were contracts to let; contractor’s bonds to scrutinize and approve; appraisers had to be appointed; assessments had to be made and an ordinance or resolu tion pertaining thereto had to be considered, adopted and published; the specially concerned taxpayers had to be notified of their assessments and they had thirty days’ time in which to pay their assessments before the amount of the bond issue could be accurately determined. After all this, in methodical and deliberate order, there would come the enactment of a proper ordinance authorizing the bond issue. That enactment would and should be taken with deliberation and without undue haste or want of care. Then the preparation and execution of the bonds would also need to be undertaken with prudence and circumspection. Among the matters which caused delay was the hesitancy of the successive city attorneys to give their official and professional approval to the form of bonds and bond ordinance prepared by defendant. Defendant’s attitude seems to have been that such approval should have been given offhand, without taking time for investigation and to learn by inquiry among other city attorneys and otherwise that the form of bond and bond ordinance prepared by defendant was legal, at least by operative interpretation. As eventually the city attorney did approve the form of bond and bond ordinance, and conceded their legality in this action, the trial court apparently adopted defendant’s view of these matters. When plaintiff sought to elicit the fact that its city attorneys, one after another, had seriously questioned the validity of the form of bonds and bond ordinance, defendant’s objection to the testimony was sustained. The record reads:
“[Counsel for plaintiff]: It is offered for the purpose, if your honor please, of showing that the city, while it is conceded by the admission here in court that the ordinance was in proper form, it is offered for the purpose, as stated in the pleadings, that there was a disagreement about the form of the ordinance, which disagreement was one in which both parties acted in good faith, which, we think, takes it out of the rule of delay.
“The court: Inasmuch as it is conceded that they were right, I wouldn’t think that the fact that you could not be made to understand that for some time would make any difference.”
“[Counsel for plaintiff]: The city may not have known it then.
“The court: The objection will be sustained. . . .
“[Counsel for plaintiff]: I might add just this: that the pleadings show that, allege that, there was a bona jide disagreement between counsel for each of these parties upon that subject and the delay was occasioned by that disagreement, and that pleading has not been attacked by motion or otherwise.
“The court: What you are trying to do now is to prove that for a time during these negotiations your side of the controversy was contending for something that was wrong, and that while you were so contending you ought to have time out.”
We think these rulings were erroneous. The city attorneys were not in a position of mere rubber stamps to give perfunctory sanction to the form of ordinance and bonds prepared by defendant for the city’s adoption and execution. It is not a mere question whether the city attorneys were right or wrong in their view of the law. They certainly were in the right when they took time for deliberation and patient study of the legal questions involved before giving their approval to the form of bond and bond ordinance submitted. It would have been gross neglect of their official and professional duty to have approved them without such investigation, and the city was entitled to a reasonable interval of time while its attorneys made that investigation; and whether such interval was unduly protracted was a jury question and not one to be decided out of hand by the court on a demurrer to plaintiff’s evidence. The other procedural steps leading up to the issue of the bonds also required some time; just how much time depended upon the attendant circumstances.
But whether or not there was unreasonable delay on the city’s part in pursuing the various steps antecedent to the execution and issuing of these bonds is in reality a minor question' — although a jury one — in this lawsuit. If the city’s delay and failure “to deliver said bonds to us [defendant] as soon as it is possible under the law to do so” constituted a breach of contract which would have justified rescission by defendant, the latter did not exercise its right of rescission. Notwithstanding the delay it received the bonds into its possession and kept them, and only after three weeks of haggling with the city did it surrender them, and even then it only surrendered them upon the exaction of conditions which it had no right to impose and which the city had not and could not have freely and lawfully undertaken.
It cannot be pretended that the city parted with the bonds on June 4, 1920, except pursuant to its contract with defendant, and in the fullest confidence that as soon as the formality of their registration by the state auditor and of their offer to and rejection by the school-fund commission, the agreed purchase price less the advancements would be promptly paid by the defendant. Moreover, the defendant cannot be heard to say that it got possession of the bonds on any other theory or pretense. Or is it intended to be confessed that it was merely by some strategic ruse or questionable maneuver that defendant got possession of the bonds? If not in conformity with its contract, what right had the defendant to meddle with the bonds in any way whatsoever? It is too clear for cavil that the defendant had no right to carry away the bonds except in conformity with its contract, and it is estopped to deny that it otherwise acquired possession of them. From this it follows that defendant must pay for the bonds according to its contract, unless the city’s claim to -the balance due thereunder was waived by. the tripartite arrangement whereby the bonds were sold to the Prudential Trust Company at a less price than defendant had agreed to pay, and by its assent to their delivery to that company by defendant pursuant to such sale, and by its assent to a diversion of part of the proceeds, $957.05, to defendant to satisfy its demand for interest on its advancements to' the city.
It would seem that even if the evidence tended to show that this tripartite disposition of the bonds was an accord and satisfaction, as pleaded by defendant, there would be a fair issue of fact for the jury, and there would be the further jury question whether such accord and satisfaction was freely made by the city and for a sufficient consideration. The plaintiff’s evidence tended to show that this disposition of the bonds was not a settlement of the city’s claim against defendant at all, but was, in the discretionary judgment of the city officials, the best course to take to get out of the predicament into which they had fallen by letting the bonds go out of their possession without getting cash in hand therefor. The mayor testified, among other material matters:
“I told him ‘No’; . . . and what I wanted him to do was to go down and turn them over to the Prudential company and they would pay him the money, and we walked down to the Prudential company, and in the meantime and while we were sitting there I said, ‘Now this is not a settlement of this affair at all, because we contend that we are entitled to our money as of contract of November 3d.”
Surely such evidence as this could not be swept aside by a demurrer and judgment ordered against plaintiff.
But we have yet to consider what appears to be the controlling feature of this lawsuit. The outstanding point which constantly obtrudes at every stage of the case is the fact that there was a contract between the parties whereby plaintiff agreed to sell and defendant agreed to buy these bonds at a stipulated price, and pursuant thereto the plaintiff parted with its bonds and defendant got and kept possession of them and refused to pay for them according to its contract. In such a situation the city had a right to sell the bonds elsewhere for the best market price reasonably obtainable and look to the defendant for the difference between that market price and the price defendant had agreed to pay. What rule of law or principle of equity can be suggested why defendant should not reimburse the city for this difference? Accord and satisfaction? A consideration is essential to a binding agreement by way of accord and satisfaction. Here there was none. Delay of the city? If there was any culpable delay, any lack of diligence on the city’s part, defendant waived it when it received the bonds. To the suggestion that it received them on some sophistical pretense other than pursuant to its contract, this court can give no countenance. It had no right to receive them otherwise than according to the contract. The city never did surrender the bonds on June 4 on any other theory than that of compliance with the contract, and had no lawful power to do so. While it is true that an offer of the bonds to the school-fund commission had to be made before the sale to defendant could become absolute, yet, even so, defendant had no business with the bonds if it considered its contract for their purchase at an end. Defendant might have adhered to its contract and paid for the bonds in accordance therewith and laid a claim against the city for damages for delay in delivering the bonds with a consequent loss to defendant, and such an issue could have been pleaded —and perhaps proved — in this lawsuit. As the pleadings were drawn, however, there was no such issue. And thus it appears that not only was the court’s ruling on the demurrer erroneous, but it appears that there is nothing further in this lawsuit to try, so the judgment of the district court must be reversed and the cause remanded with instructions to enter judgment for plaintiff for the difference between the sum realized by the sale of the bonds to the Prudential Trust Company and the contract price which defendant agreed to pay, plus the sum exacted and received by defendant out of the proceeds of the sale under claim of interest on advancements, plus interest on the aggregate of these sums computed from June 24, 1920.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
Upon petition for rehearing questions are urged which were argued when the case was presented but not discussed in the opinion. We shall now consider them.
The appellee, the Planters State Bank, argues that in its answer it pleaded that plaintiff had waived his lien for the cash rent for 1922; that the evidence was not brought up, the appeal having been from findings of fact by the court; that the general judgment of the court was in favor of appellee; that there was no finding on the question of waiver; hence the general judgment must be construed as a judgment that the waiver pleaded was established by evidence.
We regard it as well established that when a court sits as a trier of facts and is asked to make findings of fact and does so, in accordance with R. S. 60-2921, he is presumed to make findings of fact upon all questions necessary to sustain the judgment rendered. In such a case the facts found will be presumed by this court to embrace all the facts of the controversy established by proof. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.) No finding having been made on the question of waiver, and no request for one having been made by appellee, the question was no longer in the case. (Graham v. Elevator Co., 115 Kan. 143, 146, 222 Pac. 89.)
The leases contained this provision:
“That no act of either or both parties hereunto shall be construed as an extension of this lease unless the same is reduced to writing by both parties hereto.”
Appellee argues that by this provision in the lease the parties contracted away the statutory effect (R. S. 67-502) of a holding over by the tenant with the assent of the landlord after the termination of the lease. The clause does not have that effect. It applies to acts of one or both parties within the term of the lease.
We are now asked to modify the judgment as between the Planters State Bank and the thresherman with respect to the amount of the thresherman’s lien. We do not regard that question as before us. Neither the bank nor the thresherman appealed from the judgment pertaining to his compensation, and the plaintiff has no interest in it. Hence we decline to deal with that branch of the case.
Other questions suggested need not be discussed. The petition for a rehearing is denied.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages caused by the defendant appropriating a part of real property owned and occupied by the defendant in Kansas City, Kan. Judgment was rendered in favor of the plaintiff for $300, and the defendant appeals.
The plaintiff with his family occupied the property as their home, and in May, 1916, under an option agreement contracted to purchase the property of Hattie M. Andrews, who was then the owner thereof. The consideration to be paid was $750, and payments were to be made at the rate of $8 a month. In March, 1917, the defendant constructed a levee along the property, and in so doing occupied a portion of that property and damaged the remainder. On June 27, 1917, this action was commenced. The petition was attacked by demurrer and by a motion to make more definite and certain; and an amended petition was filed in April, 1919. Judgment was rendered for the plaintiff December 22, 1923. The action was tried to the court without a jury, and extensive findings of fact were made.
Those findings showed that the contract for the purchase of the property was made by the plaintiff and his wife; that after the action was commenced, but before judgment was rendered, a deed conveying the property to the plaintiff was made; that the property was taken and damaged as stated; and that the defendant has not paid for the property taken nor paid for the damage caused to the remainder.
The defendant contends that it is not liable because the original petition did not state a cause of action; because the amended petition did not state a cause of action; because there was a departure between the original petition and the amended petition; because the cause of action as attempted to be stated in the amended petition was barred by the statute of limitations; because the evidence did not prove a cause of action in favor of the plaintiff; because the plaintiff was not the owner thereof at the time the property was taken; because the acts of the defendant in taking the property were ultra vires; because the defendant is not liable for the torts of its officers; because of a defect of parties plaintiff; because the suit was prematurely brought; because the plaintiff did not consent to the taking of the property; because the defendant did not permanently take the property; and because the right of action was in another.
It was shown on the hearing of the motion for a new trial that, after judgment had been rendered, the defendant removed the levee from on and around the property of the plaintiff and placed it where it had been located by the engineer; the levee had not been constructed on the line located by the engineer.
An exhaustive discussion of all the reasons given to show that the plaintiff cannot recover is found in the briefs of the defendant; all have been examined and every proposition has been considered.
It is not necessary to cite any authority other than the law under which the defendant operates. That law directs the defendant to pay the value of land appropriated and to pay the damage occasioned by such appropriation. (R. S. 24-475.)
The removal of the levee after judgment did not defeat the plaintiff’s right to recover.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff was swindled out of twenty thousand dollars’ worth of Liberty bonds by one Francis C. McCarty in a fraudulent sale of a quarter section of Finney county land, and sought to fasten liability therefor on the defendants as principals of McCarty or as his coconspirators. Demurrers to plaintiff’s evidence were sustained, and he appeals.
To test the propriety of this disposition of the cause, the facts developed by the pleadings, the testimony and the documentary evi dence will need to be narrated at some length. It appears that in 1919 the Garden City Sugar and Land Company owned a large amount of land in Finney and other southwestern Kansas counties which it desired to sell. Accordingly it listed some 5,760 acres of these lands with one J. P. Nolan, giving him in writing an exclusive agency contract for eighteen months for their sale. Among these lands was the southwest quarter of section 19, township 22 south, range 33 west, involved in this action. On January 1, 1920,'Nolan, with the consent of the sugar land company, assigned his agency contract rights to the Garden City Land and Immigration Company, a concern engaged in the real-estate business. This latter company entered into a new contract with the suger land company which superseded the Nolan contract. By its terms the sugar land company granted to the real estate selling company an exclusive agency contract for eighteen months to sell 5,440 acres of its lands, including the quarter section involved herein, upon a prescribed schedule of prices to net $67.4633 per acre to the owner, to which the selling company was to add and prorate to the selling price of all the lands so listed the sum of $17,800 as an approximate 5 per cent of selling commission, and upon prices so fixed the selling company had to procure buyers able to pay 25 per cent of the purchase price in cash on each tract sold, and the owner was to accept first mortgages as security for the remainder of the purchase price. The contract also contemplated that the real estate selling company might superimpose on the land prices so fixed an additional 10 per cent, which apparently it might keep as additional compensation. The sugar land company, as owner, agreed to execute deeds and-furnish abstracts of title to individual tracts of land as they were sold by the selling company. In this contract, also, among other details, was a stipulation that J. P. Nolan, who had assigned his agency rights to the selling company, should receive a moiety of the gross selling prices, so that the average selling price per acre had to be fixed at $77,809 in order .to give the owner its prescribed net price and to cover incidental expenses and commissions for Nolan and the selling company. The contract covered other details of no present concern. The scheduled list of lands and prices attached to this contract contained the following:
“Moon District.
“Southeast quarter section 19, township 22, range 33, one-half interest pumping plant, 160 acres. Nolan contract: $70.00, $11,200.00. January 1, 1920, classified or graded contract: $71.50,'$11,440.00.”
The Garden City Land and Immigration Company, the selling agent, enlisted the assistance of some Kansas City real-estate dealers, styled the Fidelity Farm Lands Company and the Alfalfa Lands Company, to sell the sugar land company’s properties and other real estate; and one of these Kansas City firms began negotiations with Francis C. McCarty, of Chicago, to procure his assistance in selling the lands. McCarty was one of those modern land-boom promoters who organize and conduct railroad excursions of credulous people who have more money than wit, recruited from all sections of the country and escorted to distant localities and there duped — sometimes by playing on their cupidity, but frequently by downright fraudulent misrepresentations — into buying lands they have no use for at five, ten, or twenty times their reasonable value. McCarty had a numerous organization of real-estate dealers located in various towns throughout the middle west whose business it was to select people of means- who might be induced to join one of McCarty’s excursions and who were likely dupes for McCarty’s land-selling schemes. A contract was made between the Garden City Land and Immigration Company, which was the original land-selling company and assignee of Nolan, the Fidelity Farm Lands Company and the Alfalfa Lands Company, which were the Kansas City real-estate agencies, and Francis C. McCarty whereby the contracting parties were to share the benefits of the exclusive selling agency granted by the land-owning company. It was also agreed as to whatever lands McCarty should sell, that an additional 20 per cent of the net cost (the owner’s price) should be added to the selling price and the resulting profit should be prorated, 5 per cent to the Garden City Land and Immigration Company, 5 per cent to the Fidelity Farm Lands Company,'and 10 per cent to the Alfalfa Lands Company. The contract also provided for a trustee with whom conveyances should intermediately be deposited for delivery on the payment of the cash and notes and security required to satisfy the owner’s selling price plus the commission and added percentages imposed by the several parties participating in the sale of the lands. It was also agreed that McCarty might sell the lands at whatever prices and terms he saw fit and that deeds would be forthcoming through the trustee on McCarty’s 'demand so that title might eventually vest in McCarty’s customers. On this point the contract reads:
“Said lands shall move to Mr. McCarty at owner’s net cost as defined in paragraph III, plus 20 per cent thereof, and in addition thereto, accumulating interest and taxes. . . . Mr. McCarty is at liberty to resell said lands in any subdivisional portion thereof, suited to his interest, at such price and upon such terms as dictated by him, provided that in any event Mr. McCarty must pay an amount in cash and notes to the trustee to equal the amount passing to the owner plus the 20 per cent as defined in paragraph III; and
“(1) Mr. McCarty will make sales in his own name upon blanks prepared by him and all earnest money and notes taken in his name.
“(2) As contracts of resale are made by Mr. McCarty, an original copy thereof shall be immediately forwarded to the trustee, together with draft for one-fourth of all such sums received by him, until a sufficient amount of each resale shall be deposited with the trustee as will equal the amount necessary to lift deed, plus the sums mentioned in paragraphs III and XVIII.
“(3) Mr. McCarty will pay all solicitor’s commissions and be alone responsible therefor, plus all of his office and excursion expenses and the expense of showing land.
“(4) . . .
“(a) Upon the demand of the trustee, the companies will cause deeds, abstracts, notes and mortgages to be forwarded to any bank designated by him, with instructions to deliver to the trustee or Mr. McCarty such deeds, abstracts and papers, upon payment by the trustee or Mr. McCarty to the bank to which such papers are sent the landowner’s cash payment, the Garden City Land and Immigration Company’s cash payment, the notes moving to the landowner, if any, and the notes moving to the Garden City Land and Immigration Company.
“(b) The companies will not be responsible for failure to deliver title to any land where they undertake and actually tender such title and interest of their vendors as they receive or obtain; however, in any case when merchantable title can not be obtained to any land resold by Mr. McCarty, then it is at the option of Mr. McCarty whether he will accept such title as attainable.
“X. So long as Mr. McCarty abides by the terms of the agreement, he is hereby vested with an equitable interest in all options and sales contracts on land now held, or hereafter acquired by the companies, in the territory allotted to Mr. McCarty, and the trustee will recognize Mr. McCarty as having an equitable interest in all such contracts and options;' it being intended that in case the companies fail or refuse to aid or assist in obtaining titles to land sold by Mr. McCarty, he shall have the right to obtain deeds from the owners direct upon paying therefor the cost sum demanded for deeds as may be provided in any option or sales contract, plus sums provided in paragraphs III and XVII. . .
“XII. ...(c) Where Mr. McCarty sells a portion of land held under contract or option which requires the company to take title to the entire tract or body, then where Mr. McCarty splits any such tract, he shall be required to take title to the whole body in accordance with the terms of the company’s contract or option with the real owner. . . .
“general provisions.
“Mr. McCarty is entitled to the services of either Mr. Quimby or Mr. Couch or Mr. Hawthorne [persons connected with the Kansas City real-estate agencies] in riding excursion trains and assisting in making sales, and on all lands sold in which either of said parties ride a train and assist in making sales, three per cent of the retail price of all lands resold by Mr. McCarty shall be paid the gentleman named; provided, that Mr. Hawthorne has the right to ride any and all trains and be entitled to the 3 per cent commission, and said 3 per cent to be paid as follows: 3 per cent of the cash received by Mr. McCarty on each resale to be paid the trustee as and when received, and by the trustee immediately paid to Messrs. Quimby, Couch and Hawthorne, until one-half of the cash consideration in each resale has been paid Mr. McCarty, when the full amount of said 3 per cent shall be paid to the trustee and by him forthwith disbursed. . . .
“The trustee’s fees shall be divided: (a) One-third by the Fidelity Farm Lands Company; (6) one-third Alfalfa Lands Company, and (c) one-third by Mr. McCarty.”
Pursuant to these complicated arrangements, McCarty brought a large number of his subagents to Finney county in the early weeks of 1920 to see the properties to be sold, so that they might intelligently describe the lands to their prospective customers; and not long afterwards McCarty began to bring in trainloads of people to view the lands. He usually ran two or three excursion trains per month. He charged the excursionists a relatively small sum ($35) for plaintiff and wife, from Rantoul, 111., to Colorado Springs and return, with stopover at Garden City. Plaintiff was induced to join one of McCarty’s excursions by one Morrow, a “district agent” of McCarty, and by one Wheeler, McCarty’s “local agent” in plaintiff’s home town. Plaintiff’s testimony reads:
“We left on May 22 and made the trip on one of McCarty’s trains. We arrived in Garden City on the morning of May 24th, and were taken in automobiles over the country. . . . Speeches were made at each place, in which representations as to fertility and productivity of the soil were made; in substance, that 32 tons of beets per acre, 10 or 12 tons of alfalfa, that is, five to six cuttings, averaging 2 to 2% tons per acre, could be raised per season. In regard to this particular quarter section of land, it was represented to us that this land had the best well in the county on it, which would pump 5,000 gallons a minute, and that the total cost of irrigation per season would be SI an acre. It was also said that a railroad would soon be built, with a station just one-half mile east of this farm.
“We were taken to Colorado Springs, where we went through the Garden of the Gods and were banqueted at the Broadmore hotel, after which we returned to Garden City. ...
“Q. What did you do about closing the deal that day? Did you come to any conclusion up there at the land? A. We had made up our mind up there that we would buy that. . . .
“Q. You went back to the train? A. Yes. . . .
“Q. What did they do with you there? A. We went into the compartment, Mrs. Yates and Mr. Wheeler and Mr. Fred B. Proctor.
“Q. Who was Mr. Proctor? A. He was agent óf Mr. McCarty, and seemed to have the closing up of the contracts. I do not know what his official position is. . . .
“Q. What did he do, while you were eating your lunch? A. He had the contracts fixed up for us, at that time.
“Q. You relied on what Mr. Wheeler told you? A. Yes, sir.
“Q. You told him to put in the clause about having the crop? A. It seemed like that was all I wanted.
“Q. How much did you agree to pay for the land? A. Forty thousand dollars, twenty thousand dollars to be in Liberty bonds and the balance to be in five equal payments of four thousand dollars each year for five years, with interest at six per cent.”
The contract between plaintiff and McCarty provided for the purchase of 160 acres of land (S. E. % 19, 22, 23, Finney county) for 140,000, of which |20,000 was to be paid on demand and balance on terms. The contract provided that McCarty would “convey or cause to be conveyed” to plaintiff the land described. It also provided:
“This agreement is made subject to the approval of the owner of said land, and in the event of the disapproval hereof on the part of the owner, or in case ‘The Company’ [j. e., McCarty] is unable for any reason to deliver deed to said land, then and in that event ‘The Company’ [i.e., McCarty] shall have the right to cancel this contract upon returning to such purchaser the amount of money so paid hereunder by him, together with all notes executed by ‘The Purchaser,’ and thereupon ‘The Company,’ [i. e., McCarty] and the owner shall be released and discharged from all liability and responsibility hereunder. . .
“Witness the hands and seals of the parties hereto this 27th day of May, 1920. Executed in duplicate.
«Fbancis c. McCarty Land Company,
“By F. B. Proctor.
“Frank Yates.”
McCarty’s deposition was taken by plaintiff. He deposed:
“When we got there, the boys were turned loose in the town. At noon we were entertained by the local business organization of some kind, I think the Chamber of Commerce, and had dinner together. Then we turned the men loose in the town to investigate everything around the town. That night we took our crowd — we had our own cooks, porters and waiters — and with the assistance of some people from town, we gave the town people a banquet in the basement of a large church there, and at that time we had the citizens there tell our men how good the Garden City district was, what they could raise out there, the crops they could produce, the cost of irrigation, and all of those things. We were addressed by the banker, Mr. Low, an irrigation expert, and I think by a man who was attorney for the sugar company, living near there. . . .
“Well, the contract I made later on with the Garden City company; I think they were the owners of the land. . . .
“Q. What was the purpose of building a club house? A. I wanted a club house for the purpose of having a large dining room. We carried from 200 to 500 people on an excursion, and wanted a large dining room so we could feed the people all at one time. By feeding the people in the dining cars or small dining room, it would take most of the day to feed the people, but by having one big dining room and a big kitchen we could feed the people in large quantities, and yet all at one and the same time. ...
“The club house was constructed entirely at my expense. The purpose in the erection, maintenance and conduct of the club house was to keep our crowd together. . . .
“Q. Now Mr. McCarty, on your trips to Garden City in the demonstration of these lands, the showing of these lands, what arrangements, if any, did you have with the Garden City Company, or The Garden City Sugar and Land Company, or The Garden City Development Company, as to furnishing assistance in showing the lands. A. We were not to have any assistance from them at all in any way.”
McCarty became dissatisfied with the contractual and operative arrangements between himself and his associates, and on June 22, 1920, he entered into a contract with the owners of the sugar lands. By that time the ownership had passed from the Garden City Sugar and Land Company to the Garden City Company, a Delaware corporation, and to certain citizens of Colorado Springs. The latter contract gave McCarty an option, expiring March 1, 1921, to purchase a scheduled list of Finney county lands owned by them, or either of them, on terms specified in detail. Whether such list contained the quarter section which was the subject of the fraudulent sale to plaintiff by McCarty executed May 27,1920, is not disclosed, but that fact would be of little consequence since the contract which put McCarty directly in touch with the owners was executed subsequently to the transaction complained of by plaintiff.
There was some evidence tending to show that the managing officers of the corporate landowner knew in a general way about McCarty’s excursion trains and heard some of the extravagant statements made to the excursionists by McCarty’s subordinates as to the productivity and value of the lands- and of the cost of irrigation. Whether it was shown that any of the misrepresentations of McCarty’s subordinates to plaintiff were made in the presence of any officers or agents of either of the defendant appellees, is not clear. McCarty’s club house was built on the corporate owner’s land, with the latter’s permission and without charge. McCarty’s excursion trains used the stub railway belonging to a corporation subsidiary to the corporate landowner. That stub railway branched off from the Santa Fe railway lines. McCarty, however, paid the regular charges for that railway service. It was also shown that the corporate landowner was accustomed to make deeds to whatever straw man was nominated by McCarty for use' as a medium through whom title should pass to McCarty’s undisclosed customers. It was also shown that the land purchased by plaintiff at $250 per acre was worth from $70 to $100 per acre. The falsity of the representations as to its productivity and cost of irrigation made to plaintiff by McCarty’s subordinates, on which he relied and because of which he parted with his $20,000, was likewise proved.
Do all the foregoing matters, given their strongest possible significance in plaintiff’s behalf, tend to fix responsibility on the Garden City Sugar and Land Company and its successor in ownership, the Garden City Company, or on the Garden City Land and Immigration Company, for the misdeeds of McCarty? Did the above evidence, with the inferences which were fairly deducible therefrom, establish McCarty’s agency to receive plaintiff’s $20,000 on behalf of either of these corporations? It is not contended, of course, that there was any vice in the agency contract given by the owner to the Garden City Land and Immigration Company, nor any vice in its assignment of an interest in its sales agency contract to the Kansas City real-estate dealers, nor to McCarty. The written terms — the ostensible terms — under which McCarty’s services were enlisted were without guile. The adding of the agreed percentages, etc., for all the interested real-estate agencies to the owner’s net price did not require a pricing of the -lands to buyers at a figure beyond their worth, $70 to $100 per acre. As to McCarty’s agency to find purchasers for these lands, that matter does not reach the crux of this case, whether proved or conceded, for the all-important reason that a real-estate agent has no power to bind his principal by a written contract to convey land unless such agent holds a power of attorney or similar authority in writing and signed by the principal. In Artz v. McCarthy, 109 Kan. 355, 199 Pac. 99, it was held:
“A real-estate dealer with whom a landowner has listed realty for sale has no authority to enter into a written contract obligating his principal to sell and convey the property unless such authority is conferred upon the agent in writing as prescribed by the statute of frauds, sections 4888 and 4889 of the General Statutes of 1915.” (Syl. ¶ 2.)
See, also, Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071; McKibben v. Wilson, 105 Kan. 200, 182 Pac. 638; 4 R. C. L. 262. If an agent transcends, his authority, as where he accepts a payment on the purchase price of real estate pursuant to a contract he had no power to make, and the principal has neither received the money nor authorized the agent to receive it in his behalf, the agent binds himself and not his principal. (Simmonds v. Long, 80 Kan. 155, 101 Pac. 1070; Crosby v. Livingston, 105 Kan. 418, 185 Pac. 284.) In Halsell et al. v. Renfrew and Edwards, 14 Okla. 674, where Renfrew listed property for sale with Shields, a real-estate dealer, and the latter found a purchaser from whom he received $500 as part payment of the purchase price, it was held that Shields was the buyer’s agent to deliver the money to the seller. The court said:
“The check was given to Shields as a payment upon an agreement to sell made by him without authority, and which could not be enforced and which was in fact never fully ratified by either the plaintiffs or defendants. Shields was not the agent of Renfrow to collect the purchase money or make a conveyance; his authority to find a purchaser carried with it no implied authority to collect the purchase money when the land was sold. The plaintiffs by giving a check payable to Shields personally made him their agent to deliver the money to Renfrow, and Renfrow never has received or accepted the money. If the check had been made payable to Renfrow, and he had endorsed it and collected the proceeds, a different rule would apply. We cannot hold under all the circumstances that Renfrow has ever in fact or in contemplation of law accepted anything from the plaintiffs, and hence he is not concluded from asserting his defense.” (p. 694.)
In Rhode v. Marquis, 135 Mich. 48, the headnote states a case which recognizes the same principle. It reads:
“Testimony that defendant acknowledged drawing a contract and deed for the sale of lands, that the sale had been made by a real-estate agent who had always done her business, that she had great confidence in him, and offered to compromise to avoid litigation, has no tendency to show that the real-estate agent acted as her agent in receiving payments on the contract after she had sold the contract to him.”
But here, by the testimony of plaintiff and all the evidence, McCarty never pretended to act as the agent of either of the Garden City corporations. Plaintiff was not misled into believing he was dealing with anybody except McCarty. Whatever powers of agency may have been conferred on McCarty by giving him an interest in the written contract between the land-owning company and the land-selling company, or by the written contract between the land-selling company and McCarty, those contracts were certainly no evidence of something contrary to what they professed to be or different from the terms specified therein. (Brown v. Gilpin, 75 Kan. 773, syl. ¶¶ 2, 3, 90 Pac. 267.) The contract which plaintiff and Me Carty signed was induced by fraud, certainly, but it was made on McCarty’s behalf; not on behalf of any principal other than himself. And since there was no evidence that McCarty had authority to bind the appellees to plaintiff in a written contract, and no authority from defendants to receive in their behalf $20,000 or any other sum for the purchase of land, and as it is not pretended that any part of the payment ever reached the hands of either of the appellees, they were not liable to plaintiff on any theory of responsibility as principals for the fraud of McCarty, so on that phase of the case the demurrer was properly sustained.
■ We note the argument of counsel that agency could be established by facts and circumstances. Granted, but plaintiff will need to go further and show “by facts and circumstances” or otherwise that defendants or either of them were liable as McCarty’s principals in making the contract with plaintiff, or by receiving the bonds in payment, or through ratification. This the plaintiff had not done at the time the demurrer to plaintiff’s evidence was interposed.
But on the other point urged by appellant, a maj ority of the court hold that this case should have gone to the jury on the question of conspiracy. That the plan of selling the lands, considered as a whole, was a gross fraud is clear. The magnitude of the undertaking and the gigantic scale upon which so gross a fraud was conducted almost precludes the possibility that defendants were ignorant of it. It seems impossible that it could have been operated with any hope of success without the knowledge and assistance of defendants. In view of the gross fraud and the magnitude of its operations, the fact that defendants had contracts, prepared in advance, stuck away somewhere, which were kept secret from plaintiff and all ultimate purchasers, and which could be brought out and used in defense of an action such as this, might tend to establish their fraudulent connection with the transaction as a whole, rather than to relieve them of liability. To weigh the evidence was the function of the jury, to whom it should have been submitted.
It follows that the judgment of the district court must be reversed and the cause remanded for further proceedings consistent herewith. And since this will necessitate a new trial in toto, nothing stated herein is intended to bar the plaintiff from seeking, in such new trial, to fasten liability on defendants or either of them as principals of McCarty or as his coconspirators.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a broker’s commission for plaintiff’s services in obtaining an underwriting for a million dollars’ worth of bonds issued by the defendant corporation.
The principal facts giving rise to this lawsuit are as follows:
In 1921 the plaintiff, F. H. Mitchell, was engaged as a broker of oil stocks in Wichita. He had formerly been an organizer of syndicates for handling Canadian real estate, and a stock and bond dealer in New York. He had several years’ acquaintance with R. E. Wilsey & Company, a Chicago firm of underwriters of industrial securities, a brother of a member of that firm, Clarke, having been in plaintiff’s employ in Canada. In 1921 A. L. Derby, president, and Dan F. Callahan, treasurer, of the Derby Oil Company, desired to sell half a million dollars’ worth of oil stocks of the Derby Oil Company owned by them individually. They enlisted the services of a Wichita Trust Company, and the latter entered into an arrangement with Mitchell to dispose of this stock, but owing to unfavorable market conditions and the attitude of certain “blue-sky boards,” the sale of this stock was not accomplished. The trust company which had been advancing $500 per month to Mitchell as a drawing account chargeable against his commissions, terminated that arrangement; and Mitchell, although apparently a man of some considerable means, became embarrassed for want of funds for personal expenses because his assets had been hypothecated to banks in Kansas and Oklahoma. Mitchell explained his financial embarrassment to Derby, and the latter, on behalf of himself and Callahan, offered to provide him with office room and to provide a drawing account for him until conditions improved. Derby said:
“‘Now, Frank, things are not as bad as you think, and as regards your loans you are well secured, . . . and the bank people are friendly towards you, and you are good friends and they are good friends of yours, and I don’t think that you ought to worry about that; commissions are getting a little better, and as regards making some money, Dan Callahan and I are working on a deal, framing up a deal that we will want to use you on, and until — a deal that will give you an opportunity to make some money, and if you need any money in the interim ... I will speak to Mr. Moriarty, and at the end of the month you ask Moriarty [Derby’s secretary] and he will bring you in a check. . . . ’
“. . . You need not have any worry about that, because we are framup this deal, will be ready in a few days, and we will want to use you, and it will give you an opportunity to make quite a good deal of money.’ . . . He said he didn’t know whether I could make that much money or not, but he said I would probably be able to make ten, fifteen or twenty thousand dollars.”
Pursuant to this arrangement Mitchell moved his desk into the Derby Oil Company’s offices to save office rent, and for three or four months Derby’s secretary, who was also secretary of the oil company, furnished him with funds of the company, charging the same to Derby and Callahan personally. These sums were $250 in August, 1921, $200 in Septembér, and $200 in October. On the voucher for one of these sums the word “loan” appeared; on another “on acc’t F. H. Mitchell” was written. By this same arrangement for funds, Mitchell’s office rent for May and June was paid and likewise charged to the personal account of Derby and Callahan. During July, August and September Mitchell continued his efforts to sell the half million dollars’ worth of Derby Oil stock owned personally by Derby and Callahan. About August 25 plaintiff Mitchell asked Derby if the defendant company would be interested in putting out a million-dollar bond issue. Derby answered in the affirmative. Mitchell inquired to what uses the proceeds would be put. Derby told him. Mitchell made a memorandum of the purposes outlined by Derby, and on August 30 wrote Wilsey & Company, explaining the proposed issue, and suggested that that firm should underwrite the issue, and invited investigation. On September 8 Wilsey & Company replied, discussing the dullness of the bond market, giving instances of unsatisfactory results of underwriting industrial bond issues during that year, expressing the hope that business would soon improve, and suggested that the Derby Company should borrow money for its temporary needs and await an upward trend of the oil business and then decide on a program of financing. On September 13, as Mitchell was about to leave Wichita for Philadelphia in an effort to dispose of that half million dollars.’ worth of oil stocks which belonged to Derby and Callahan, he asked Derby, president of the defendant company, what compensation he would receive if he secured an underwriting for a million-dollar bond issue. Derby replied that he would make it right with Mitchell. En route for Philadelphia, Mitchell called on Wilsey & Company in Chicago and discussed the proposed bond issue and wrote to Derby:
“Chicago, III., Sept. 15, 1921.
“Wilsey has just returned from New York this morning and I have been with him for about an hour. While in New York he talked with the Daugherty people and a number of banking concerns. He states that they all feel very confident that the oil conditions will be greatly improved within possibly the next sixty days. He states that he would be very glad to handle a million-dollar bond issue for the Derby Company just as soon as conditions look at all favorable in the oil industry itself.”
Mitchell went on to New York and called on a firm of underwriters there in regard to the proposed million-dollar bond issue, carrying with him a letter of introduction from a New York bank obtained for Mitchell by Callahan. Returning from New York, Mitchell again called on Wilsey & Company and discussed with that firm the proposed bond issue and then wired Derby:
“Sept. 28,1921, Chicago, 111.
“If you want to put out million of bonds Wilsey is interested and Clarke will return with me to Wichita after I get through at Appleton to complete arrangements for issue. Instruct me at Appleton.”
Derby wired Mitchell to meet him in Chicago on his return from Appleton, Wis., and accordingly on October 4, pursuant to an engagement made by Mitchell, Derby and Mitchell went to the offices of Wilsey & Company, where the projected bond issue was discussed and preliminary plans outlined. Pursuant thereto and in the usual course of a transaction of such magnitude, the million-dollar bond issue, was authorized. Wilsey & Company did not bind themselves to underwrite the whole million-dollar issue. Their proposition dated October 12, 1921, was to underwrite $100,000 of this issue, upon condition that if successful in that underwriting they should have a sixty day’s option on the second hundred thousand, and if it were also successful they were to have a similar option on the third hundred thousand, and on the same terms an option on the fourth hundred thousand. The written offer of Wilsey & Company containing this proposition included no stipulation for the underwriting of the balance of the issue; nevertheless, and although no further formal contract was ever made between Wilsey & Company and defendant, in about a year Wilsey & Company successfully underwrote and disposed of the entire million-dollar issue.
The plaintiff testified:
“Q. Did Mr. Derby, according to your remembrance of that conversation, say anything about limiting the amount of bonds that he was going to put out? A. No, not in just the way you are asking me. Mr. Derby asked Mr. Wilsey if it would be necessary to put out the whole million at the time, and Wilsey said !No’; and Derby said all he could use right then would be $400,000, because he didn’t want to take the other $600,000 and pay interest on that when he could not use it, and it would take some time to use a million dollars; and Mr. Wilsey said all right, he could put it out in that way, serial form as he wanted it, over the period of a year.
“Q. Then, Mr. Mitchell, the entire talk was not about putting out a million dollars’ worth of bonds; it was limited to putting out $400,000? A. No, not at all; it was an issue of a million dollars’ worth of bonds to be put out as needed.”
Derby testified:
“Q. This letter is dated October 10th, isn’t it? A. October 12th.
“Q. The 12th — is that the letter and the proposition upon which the bonds of the Derby Oil Company were iss.ued so far as Wilsey & Company’s connection with these bonds is concerned? A. That is the only agreement that we ever had, the only contract we ever had; that is a copy of it. . . . It was about 60 days, I think, before we called a directors’ meeting. . . .
“Q. Mr. Mitchell in his testimony said that while you were in Mr. Wilsey’s office you talked about a million-dollar issue. What talk, if any, was there about the amount of bonds? A. Well there was a talk on $400,000, and I told him I didn’t think we could use that much money, that we didn’t want it. I didn’t want to have to pay interest on any money we were not using, and they might have spoke of a million there, but I don’t think that a million was considered at all until after Mr. Wilsey was down here and we talked then, and all we talked of then was nothing but $400,000, and when Mr. Wilsey was here he insisted that we should authorize a million, and then it wouldn’t do any hurt, as we could put it out whenever we wanted to. If we had it authorized, that later on if we changed our mind we could go ahead and put out more bonds on the same.
“Q. Under the same mortgage? A. Yes, under the same mortgage. . . .
“Q. But the mortgage did authorize the [issue] of a million dollars when you could comply with the conditions of the mortgage? A. I think' that it does; it is in there, whatever it is.
“Q. You remember whether or not it was a million dollars, don’t you? A. It was a million, yes.”
Compensation for plaintiff’s services as above was denied, and this action followed. Plaintiff sued for a 2 per cent commission for his services in finding an underwriter for the whole million-dollar .issue. The jury answered some twenty-five special questions and returned a verdict in his behalf for $8,426.66, which was a 2 per cent commission on the first $400,000 of the bond issue underwritten by Wilsey & Company plus interest.
' Plaintiff moved for judgment on the special findings of the jury and on the undisputed evidence for the entire sum demanded in his amended petition. This was denied.
Defendant likewise moved for judgment on the special findings. This was denied. Judgment for plaintiff was entered on thewerdict, and defendant’s motion for a new trial was denied.
Defendant appeals and plaintiff presents a cross-appeal.
Noticing first the errors presented by defendant, our attention is called to the jury’s answer to defendant’s questions 2, 3 and 4:
“2. On September 8th did Wilsey & Company decline at that time to underwrite a bond issue of the Derby Oil Company? A. Yes.
“3. If you answer the last question ‘yes,’ then state was there any contract of employment entered into for obtaining an underwriting of bonds between plaintiff and defendant, after that date? A. Yes.
“4. If you answer the last question in the affirmative, then state when and by whom said contract of employment was made and the terms of the same. A. Impliedly made by Derby Oil Co. through its president, A. L. Derby, on or about Oct. 4th, 1921, when Mitchell notified A. L. Derby by telegram that Wilsey & Company would consider a million-dollar issue of bonds, and how A. L. Derby impliedly consenting to same by actually going to Chicago and entering negotiations which finally led to the sale of the bonds.”
The finding was that an implied contract of employment was made “after that date,” September 8. It would be easy to give a false implication to that finding — that there had been no express or implied contract of employment concerning the bond issue before that date. Question 2, 3 and 4 really invited the jury to lay aside for the moment its comprehensive survey of the relationship of the parties, covering their antecedent dealings prior to and at the time when plaintiff Mitchell first conceived the idea of floating the million-dollar bond issue. Yet it is necessary that all these matters be taken into account to get a correct understanding of the controversy. The instruction to the jury in this- connection is complained of. With its pertinent context it reads:
“ . ■ . The plaintiff could be employed to procure an underwriter by an implied agreement.
“In determining whether there was such an implied agreement the acts and conduct of the parties should be looked into, and if under such circumstances Mitchell rendered services for the Derby Oil Company in procuring an underwriter, and that company accepted the work and benefit arising from the efforts of the plaintiff in securing an underwriter for the bonds, the defendant Derby Oil Company made the plaintiff its agent by an implied contract to pr-ocure an underwriter for the bonds in question. . . .
“If you find that the plaintiff Mitchell was in the employ of the Derby Oil Company or A. L. Derby personally, or A*. L. Derby as president of the Derby Oil Company, and was receiving compensation for such employment, and that as part of such employment it was his duty to perform such services as Derby might request him to perform, then to entitle the plaintiff Mitchell to recover compensation he must show by a preponderance of the evidence that he had an express contract with the Derby Oil Company. . . . Under, such circumstances the plaintiff would not be entitled to compensation on an implied contract that as broker he should receive the reasonable value of his services for procuring an underwriter of the bonds.”
Counsel say, “The primary fault or deficiency in the findings of the jury and in this instruction is that the appellee was allowed to recover upon his mere voluntary or uninvited action.” But we have no case here of uninvited action of a mere volunteer. Such a defense was not even pleaded. The answer contained a general denial, and an allegation that plaintiff “rendered no service in connection with obtaining any underwriting of bonds of the defendant company” ; but the main defense was made in support of the following allegations of defendant’s answer:
“Defendant alleges that during the time referred -to, and more particularly during the months of July, August, September and October of the year 1921, the plaintiff was in the employ of Mr. A. L. Derby and Mr. Dan F. Callahan, and under an agreed compensation, and which compensation was duly paid to and received by the plaintiff; that such employment required of the plaintiff that he perform for Mr. A. L. Derby, who was the president of the Derby Oil Company, any assistance, service or efforts of the plaintiff which the said Mr. A. L. Derby would need or require of him in assisting said A. L. Derby and looking after the affairs and business of the Derby Oil Company as its president. That at the same time the said the Derby Oil Company, in payment of such services which the plaintiff might directly or indirectly render to the Derby Oil Company in the promotion of its interests and affairs, said the Derby Oil Company furnished office space and paid the rent therefor for the plaintiff, and the defendant alleges that any services or assistance which the plaintiff might have rendered and given in connection with obtaining the underwriting of any bonds of the Derby Oil Company were rendered by the plaintiff as an employee of Mr. A. L. Derby and Dan F. Callahan and the Derby Oil Company under an arrangement heretofore alleged, and that all of such services have been heretofore fully paid for to the plaintiff.”
If there had been any evidence that plaintiff’s acts were those of a mere volunteer, defendant might have asked for an instruction covering its nonliability thereunder. And it is needless to waste words rehashing the jury question whether Mitchell was merely an employe of Derby at a stipend of a couple of hundred dollars per month. The court covered that feature of the case with a compre hensive instruction to which no exception was taken, and the jury’s pertinent findings read:
“11. Was F. H. Mitchell employed and received compensation from A. L. Derby to render such service to him and to the Derby Oil Company as A. L. Derby might request? A. No. . . .
“25. Were not the sums of money received by plaintiff Mitchell in the months of August, September and October, 1921, from A. L. Derby, advancements made in connection with the attempted sale of stock of the Derby Oil Company belonging to Mr. A. L. Derby and Mr. Dan Callahan personally, and were not such sums charged to the account of Derby & Callahan? A. No, to advancements; yes, to charge of Derby & Callahan.
“26. Was any sum of money paid plaintiff Mitchell, either as salary or advancement, by the Derby Oil Company itself? A. No.”
Defendant’s counsel next proceed with a dissertation on the essentials of an implied contract to pay for services. This is an interesting theme, to be sure, but unless some error of the trial court in its instructions or in its application of this phase of the law is disclosed, we cannot presently pursue it with profit. The pertinent law, with which the criticized instruction was in substantial accord, is given our own precedents.
In Wilson v. Haun, 97 Kan. 445, 155 Pac. 798, it was held:
“To establish the relation of agency an express appointment and an acceptance thereof is not essential, but it may be implied from other facts, such as the statements of the parties, their conduct and the relevant circumstances.” (Syl. If 1.)
In Investment Co. v. Lowrey, 99 Kan. 87, 160 Pac. 999, it was decided:
“A letter from a brokerage company to a banker, saying that it would be glad to give its best efforts to assist him in making a sale of his stock, and a reply stating that if satisfactory to other holders he might sell at a price named, are to be interpreted as an offer by the company of its services, in the expectation of receiving compensation therefor if successful, and as a qualified acceptance by the banker amounting to an invitation to the company to produce a customer, with the understanding that it was to receive a commission if a sale should be brought about by its efforts.” (Syl.)
See, also, Stephens v. Scott, 43 Kan. 285, 23 Pac. 555; Johnson v. Huber, 80 Kan. 591, 103 Pac. 99; Williams v. Jones, 105 Kan. 282, 182 Pac. 391; Simmons v. Oatman, 110 Kan. 44, 202 Pac. 977; 40 Cyc. 2808 et seq.; 13 C. J. 241; 6 R. C. L. 587, et seq.
Counsel for defendant say:
“In order to hold the Derby Oil Company under the circumstances of this case, the law must in effect say that Mr. Derby, as president of the Derby Oil Company, when he received the telegram from Mr. Mitchell, and when he further took up with Wilsey & Company the matter of their underwriting these bonds, as a reasonably prudent man, would be required to know that on account of such services Mr. Mitchell expected, and the Derby Oil Company would be required to pay him, the reasonable value of the services, the amount of which the jury found to be $8,000.”
There can be no” quarrel with this line of argument, and we are bound to hold that all the circumstances outlined by counsel were fully met. Derby, president of the oil company, knew that Mitchell had broached to him the idea of a million-dollar bond issue and was eager to find an underwriter to float the bond issue, knew Mitchell had been working zealously for some time to interest Wilsey & Company and other underwriters in the issue, knew what were Mitchell’s usual terms for his brokerage services — Derby & Callahan were to pay him two per cent to sell their half million dollars’ worth of stock — knew that the Wichita Trust Company had formerly had an arrangement with him at the same rate of commission, knew that Mitchell owed $40,000 to Callahan’s bank in Wichita, and knew that Mitchell was financially hard up and that he had no way to pay his debts except by the successful prosecution of his business as a broker, and knew that he, Derby, president, had already assured Mitchell at least twice during that autumn that Mitchell would be paid what was right for finding an underwriter, and knew that there was not the slightest reason for supposing that Mitchell’s need and expectation of pay was any less for services rendered after September 8 than before that date.
Error is also assigned on this instruction:
“You are instructed that even though you find that the contract of underwriting or purchase was in part optional, yet if you find that such option was exercised by Wilsey & Company, then the plaintiff is entitled to recover for a fair and reasonable value of his services with relation to such bonds so taken or purchased by Wilsey & Company under the exercise of such option, if you find that he was the procuring cause and was employed by the Derby Oil Company to find some one to underwrite the bonds issued by that company as herein elsewhere instructed.
“If any underwriting contract made between Wilsey & Company and the Derby Oil Company was in part optional, then if that option was exercised by Wilsey & Company, the optional part of the contract became a binding contract.”
This was not an incorrect statement of law. While the mere procuring of an optionee does not entitle a broker to his commission, yet if the option is actually exercised, or if some act or fault of the broker’s principal alone prevents its exercise by the optionee, the broker is entitled to his commission. In 4 R. C. L. it is said:
“It is a matter of common, knowledge that sales are frequently effected through options. By granting the option the owner is merely helping to bring about the sale which he employed the broker to make. It is a step in that direction. . . . While, as above shown, according to the great weight of authority the mere procuring of one to take an option does not entitle the broker to commissions if the optionee elects not to exercise the same, yét it is apparently well settled that the broker is entitled to his commission if the option is actually exercised, or the optionee is willing to exercise it but is prevented from so doing by the refusal of the owner to comply with his part of the agreement.” (p. 315. See, also, notes to reported cases in 43' L. R. A., n. s., 91, 94; 23 A. L. R. 856, 859-60; 9 C. J. 603-605.)
Defendant’s twenty-second assignment of error is based upon the trial court’s refusal to give an instruction which in any event would have limited plaintiff’s recovery to a reasonable commission on the first $100,000 worth of bonds which Wilsey & Company agreed to underwrite in their offer of October 12, and would have told the jury that no commission was due on that part of the issue as to which Wilsey & Company had only bargained for an option or series of options. Such an instruction would have been a very incomplete and misleading statement of the law as applied to this case, as we have shown above.
Defendant also complains of this instruction given by the court:
“You are instructed that any contracts or agreements entered into between Wilsey & Company and the defendant, the Derby Oil Company, cannot limit the amount of recovery of the plaintiff in this action. If you find from the evidence that the plaintiff was employed to find an underwriter for the bonds of the Derby Oil Company, that he was the procuring cause of the underwriting of a million dollars par value of such bonds; and if you further find that it was not a part of the plaintiff’s employment by A. L. Derby to procure an underwriter of the bonds for which he was paid by A. L. Derby, then the plaintiff may recover the fair and reasonable value of his services in procuring such underwriting.”
That seems to be a fair statement of the law. If Mitchell had a contract with defendant, express or implied, to procure an underwriter for defendant’s million-dollar bond issue and was the initiator and procuring cause of obtaining Wilsey & Company as underwriter for the million-dollar bond issue, certainly plaintiff would be entitled to his commission, and of course the details of the bargain between the underwriter and defendant, whether written or oral, or partly written and partly oral, or made for part of the issue at one time and for optional and additional parts of the issue at another time or at intervals, or whether Wilsey & Company underwrote part of the issue without any express contract pertaining thereto — neither of these facts nor all of them together would limit the amount of plaintiff’s compensation. Once plaintiff’s employment was established and the fact established that he was the procuring cause of whatever contract or contracts, express or implied, were made and performed between defendant and Wilsey & Company for the disposal of this bond issue, plaintiff’s right and defendant’s liability became absolute — a reasonable commission on defendant’s bond issue underwritten by Wilsey & Company.
In Dreisback v. Rollins, 39 Kan. 268, 18 Pac. 187, it was held:
“1. A broker employed, to sell lands or to find a purchaser for them, who brings and introduces a buyer to the owner and starts negotiations between them which result in a sale, is entitled to his commission, although he is not present during the negotiations and until the completion of the sale. . . .
“2. . . . When the sale is consummated with such purchaser, at the price asked and upon terms satisfactory to the owner, the broker has discharged the obligation of his contract and has earned his commission.” (Syl. See, also, Grimes v. Emery, 94 Kan. 701, and citations, 146 Pac. 1135; Ryan v. Strong, 111 Kan. 54, 206 Pac. 322; Briggs v. Bank, 112 Kan. 161, 210 Pac. 480; Freeman v. Kingston Mfg. Co., 233 Fed. 58; 9 C. J. 611, et seq.)
In Marlatt v. Elliott, 69 Kan, 477, 77 Pac. 104, it was held:
“1. It is sufficient to entitle a real-estate agent to recover his commission for the sale of land that he, under a contract with the owner thereof, has been the procuring cause of such sale. He need not have conducted it to a final and successful conclusion.
“2. If a real-estate agent, under a contract with the owner, call the attention of a prospective buyer to the land of such owner, and thereafter, moved by the efforts of such agent, the proposing buyer and the owner consummate the purchase and sale of such real estate, the agent is entitled to. his commission, even though the purchaser, at the time the agent solicited him to buy, was not ready, willing and able to purchase.” (Syl.)
A diligent and oft-repeated perusal of this entire record, including the files of the trial court and the transcript, discloses no error of wfiich defendant can justly complain.
Turning next to plaintiff’s grievance under his cross-appeal, he urges our attention to the uncontradicted evidence touching the value of his services, to the admissions by defendant’s counsel as to the purport of the jury’s award in their general verdict, and to the jury’s special findings, and contends that he is entitled to have judgment ordered by this court as prayed for in his petition.
It cannot be doubted that since the revision of the code in 1909 (§581, R. S. 60-3317), this court has power, in any proper case pending before it, to—
“Render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken.” (Ratliff v. Railroad Co., 86 Kan. 938, 940, 122 Pac. 1023.)
And this broadened appellate power has frequently been exercised. In Manufacturing Co. v. Porter, 103 Kan. 84, 172 Pac. 1018, the action was to recover the price of machinery for an elevator. The defense, which prevailed below, was based upon the controverted question whether the elevator company was liable as guarantor of the contractor who built the elevator because of an obligation k. that effect signed by its secretary. In reversing the judgment this court said:
“Does this conclusion leave anything on which to base a new trial, or should judgment be ordered? The defense of want of authority on the part of the secretary to apprise the plaintiff that the association would guarantee the payment failed. . . . And the record shows that in no way can the defendant rightfully prevail; and since all the material facts are incontrovertibly established, a new trial would confer no favor on the defendant, but only prolong litigation over a liability which defendant cannot escape, and judgment for plaintiff should be directed. (Civ. Code, §581.)” (pp. 88, 89.)
Under authority of this code provision, judgments for defendants on jury verdicts have been reversed and money judgments for plaintiffs directed by this court. (Bank v. City of Rosedale, 108 Kan. 474, syl. ¶ 2, 196 Pac. 770.) Judgments for defendants on jury verdicts in ejectment actions have been reversed and judgments decreeing possession to plaintiffs have been ordered (Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; id. 682, 129 Pac. 1166), and nothing is more common than directed judgments of this court non obstante veredicto in actions on promissory notes (State Bank v. Grennan, 116 Kan. 442, 227 Pac. 530), in actions for damages (Martin v. City of Columbus, 96 Kan. 803, 153 Pac. 518; Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922), in actions on wills (Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849), where special findings of the trial court or jury clearly demonstrated that justice so required. See, also, City of Washington v. Investment Co., 117 Kan. 15, 230 Pac. 311.
The evidence was that the fair and reasonable value of the service of procuring an underwriter for a million-dollar bond issue of a concern like defendant company was two and one-half to five per cent of the par value of the bonds. Two experienced witnesses so testified. There was no testimony to the contrary. Plaintiff asked for two per cent, and the court instructed the jury not-to allow any award to plaintiff on any basis in excess of 2 per cent. There is neither contention nor'pretense in this lawsuit that plaintiff’s commission, if he was entitled to recover, should have been determined on any other basis than two per cent. Counsel for defendant concede in their brief that the verdict which the jury did return was based upon a two per cent computation on the first $400,000 of the bond issue underwritten by Wilsey & Company, plus interest on such computed amount. The pertinent special findings of the jury read:
“7. State what F. H. Mitchell did toward inducing Wilsey & Company to underwrite the bonds of the Derby Oil Company after September 8, 1921. A. By bringing parties interested together through personal visits and telegrams. . . .
“14. Did the Derby Oil Company make with F. H. Mitchell or R. E. Wilsey & Company a contract that it would issue more than'$400,000 of bonds at or prior to the time that the bonds and mortgage were executed? A. Yes. ....
“17. Did the plaintiff Mitchell, by letter-, or otherwise, first call the attention of Wilsey & Companj' to the fact that the Derby Oil Company wished to put out a million-dollar bond issue? A. Yes.
“18. Did the plaintiff Mitchell, by letter or otherwise, first call attention of the officers of the Derby Oil Company to the fact that Wilsey & Company were interested in underwriting or purchasing a million-dollar issue of the bonds of the Dei’by Oil Company? A. Yes.
“19. Did plaintiff Mitchell, after all pi’ior negotiations had ended, again take up with Wilsey & Company the matter of underwriting or purchasing a million-dollar bond issue of the Derby Oil Company? A. Yes.
“20. Did plaintiff Mitchell, after all prior negotiations had ended, again take up with A. L. Derby, as president of the Derby Oil Company, the matter of securing Wilsey & Company to underwrite or purchase a million-dollar bond issue of the Derby Oil Company? A. Yes.
“21. In Chicago, about October 4, 1921, did plaintiff Mitchell take Mr. A. L. Derby, the president of the Derby Oil Company, to the office of R. E. Wilsey & Company, to begin negotiations for the issuance of the Derby Oil Company and the underwriting and purchase by Wilsey & Company of one million dollars of the bonds of the Derby Oil Company, or any part thereof? A. Yes.
“22. Did members of the firm of Wilsey & Company come to Wichita as a result of the negotiations begun in Wilsey & Company's office on or about October 4, 1921, and make a contract with the Derby Oil Company to underwrite or purchase bonds of the Derby Oil Company? A. Yes.
“23. Did not the Derby Oil Company authorize the issuance of one million dollars of its bonds in December, 1921, pursuant to the suggestion and recommendation of Wilsey & Company? A. Yes.
“24. How many bonds did F. H. Mitchell procure Wilsey & Company to purchase from the Derby Oil Company? A. $1,000,000.”
Defendant endeavors to combat the proposition raised by the cross-appeal by directing special attention to the jury’s special findings 8 and 16, which read:
“8. Was the contract contained in the letter of Wilsey & Company of date of October 12, 1921, the only contract between Wilsey & Company and the Derby Oil Company for the underwriting of bonds up to the issuance of bonds in January, 1922? A. Yes. . . .
“16. Did F. H. Mitchell participate in any negotiations between the Derby Oil Company and R. E. Wilsey & Company after his return from Chicago, about October 7, 1921? A. No.”
What significance have these last quoted findings? Merely that after October 12, 1921, when Wilsey & Company offered to underwrite $100,000 worth of the bond issue with successive options on $300,000 more, there were no further contractual relations between Wilsey & Company and defendant for about three months. Why should there be? It took about that length of time to get the bonds ready to be issued. Question No. 8 virtually shows that and Derby’s testimony was to the same effect. It would have been curious if there had been any other contract during that short interval before the bonds were issued and before Wilsey had a chance to learn how defendant’s bond issue would be received on the industrial bond market. And. when the process of underwriting and marketing the bond issue was once begun, so successfully did it proceed that not only the first $400,000 but the entire $1,000,000 was underwritten and disposed of without any further contract except such as the law would supply from the acts of the parties. And as to finding No. 16, Mitchell had already done all it was necessary for him to do to earn his compensation (Dreisback v. Rollins, supra; Marlatt v. Elliott, supra), as shown by the other findings quoted above. In defendant’s brief the information is volunteered that Wilsey & Company “only purchased $900,000 of bonds; $100,000 of bonds were traded by the Derby Oil Company to Dan F. Callahan for properties obtained from him, and Mr. Callahan in turn had Wilsey & Company dispose of these bonds for him.” But apparently the testimony which the jury chose to believe was given by R. E. Wilsey, viz:
“Q. Mr. Wilsey, how many bonds has R. E. Wilsey & Company underwritten for the Derby Oil Company pursuant to their agreement to underwrite bonds? ... A. We bought a total of a million dollars.
“Q. And how many of these bonds have been delivered to R. E. Wilsey & Company by the Derby Oil Company? A. Practically all. There may be a few undelivered bonds.
“Q. Do you recall approximately when these bonds were delivered? A. The first four hundred thousand were delivered, I think, in February of 1922; and two or three hundred thousand — two hundred thousand, some time during the summer of 1922; and the remainder on or before December, 1922. I want to correct that. There may have been a few of them — I guess there were — a few of them delivered in January, 1923.”
There was no motion to set aside the jury’s finding No. 24, although defendant’s attention must have been sharply drawn to it ■by plaintiff’s motion for judgment non obstante on the special findings of the jury.
In view of the uncontroverted evidence touching the value of plaintiff’s service and the admissions of counsel concerning the same, and the absence of any dispute as to the reasonable value of plaintiff’s services, and the special findings quoted above, it seems clear that plaintiff’s cross-appeal must be sustained; and as all controverted matters in this lawsuit are conclusively disposed of by the jury’s verdict, and there is nothing remaining in dispute which would furnish a basis for a new trial, it follows that judgment should be ordered as the civil code, section 581, commands.
The judgment of the district court is therefore modified so far as necessary to give effect to the judgment of this court on plaintiff’s cross-appeal, and the cause is remanded with instructions to enter judgment for plaintiff for the full amount prayed for in his amended ■petition.
Mr. Chief Justice Johnston concurs in affirming the judgment of the trial court entered on the general verdict, but dissents as to the decision of this court on the cross-appeal. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a trade acceptance. The district court directed a verdict for plaintiff, and defendant appeals.
The instrument sued on was in the following form:
Across the end of the instrument and below the marginal words "Trade Acceptance,” appeared the following:
“Accepted
Date Aug. 28, 1922
Payable at Bank of Commerce Chanute, Kans.
Carl J. Anderson.”
After correspondence in which defendant was solicited to establish an agency for sale of the Acme company’s products at Chanute, defendant met representatives of the company by appointment at Parsons. As the result of a conference, defendant purchased of the company 200 sacks of its stock tonic for the sum of $900, and gave the company for the goods three trade acceptances of $300 each, one of them being the instrument sued on. Defendant read the instruments before he signed them. He is a clerk in a wholesale grocery establishment, but before signing the instruments had neither seen nor heard of trade acceptances. All these facts were established by defendant’s testimony. The defense was that the company’s agents represented to defendant the instruments were needed to send to the company’s manufacturing department to show what goods were to be shipped to defendant; that before signing the instruments defendant asked that he might show them to some one else, but was given the following assurances: “That I would be liable on nothing but the contract; that I would be responsible on nothing but the goods that would be shipped”; and that plaintiff did not understand the nature of the instrument — “I did not understand it to be any money paid; it was a trade acceptance for the goods.”
Indorsement of the instrument sued on to plaintiff was not denied, and plaintiff’s evidence was clear that it was a holder in due course. This evidence was not disputed, and defendant does not now question sufficiency of the evidence to establish the fact that plaintiff had no knowledge of any infirmity in the instrument or defect in the title of the company negotiating it. Defendant merely contends that fraud in the inception of negotiable paper may be set up against a holder in due course. Fraud in the inception of a negotiable instrument may be set up against one claiming to be a holder in due course, but proof of such fraud does not necessarily defeat the holder. The burden then rests on the holder to show that he had no knowledge of the fraud, and if he was without such knowledge he may recover. (R. S. 52-509, and cases cited in the annotation.)
The result of the foregoing is that, conceding the instrument was fraudulently obtained, the judgment of the district court was nevertheless well founded. Defendant may not, however, assert that the instrument was procured by fraud. He does not admit lack of capacity to contract for purchase of goods for the price of $900. He read the instrument before he signed it. It contained no description of goods or other recital which indicated what he says the drawer’s agents said it was to be given for. It made prominent the sum of $300, contained plain words used in common instruments expressing obligation to pay money, and disclosed a due date. Whatever the drawer’s agent said about it, defendant was charged with knowledge of the contents of the instrument because he read it, and, having such knowledge, he is not permitted to deny understanding of its legal effect. If he were permitted to make such a denial, writings evidencing business transactions and particularly negotiable instruments, would be valueless.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of violating an ordinance of the city of Independence. His offense was that of operating a rooming house without a license. He appeals, raising the question that the city has no statutory authority to impose license taxes on rooming houses.
The license tax imposed on defendant’s business was as follows:
“Hotels, Restaurants and Rooming Houses.
“Section 8a. Each hotel having 25 or more guest rooms, six months, $10.50.
“Sec. 8b. Each hotel having less than 23 guest rooms, six months, $10.50.
“Sec. 8c. Each rooming house having 5 or more guest rooms, six months, $5.50.
“Sec. 8d. Each rooming house having less than 5 guest rooms, for each guest room, six months, $1.50.”
The penalty for violating this ordinance imposed on defendant was $50.
The city cites R. S. 14-401, 14-415 and 14-439 as the basis of its authority to enact the ordinance and to impose a license tax on defendant’s rooming house. Defendant calls attention to R. S. 14-416, and it is agreed by the litigants that defendant held a license to conduct a rooming house issued by the state hotel commission under R. S. 36-102, 36-105. Examining these statutes, it will be noted that R. S. 14-401 is a general grant of power to cities of the second class, like Independence, to enact ordinances, “not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the supression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.”
In R. S. 14-416 it is provided that all license taxes shall be regulated by ordinance. R. S. 14-439 amplifies the grants of power conferred by R. S. 14-401, and provides means for the enforcement of city ordinances. R. S. 14-415 grants authority to the city to levy and collect license taxes on some fourscore trades, professions and occupations specifically enumerated. A rooming house is not included in this list unless it can be said to fall into the category of one or more of those expressly covered by the statute, to wit: “boarding houses, . . . hotels, . . . innkeepers, . . . taverns.”
The statute is old. By the General Statutes of 1868, chapter 19, § 4, cities of the second class were authorized to levy and collect license taxes on several specified kinds of business, including taverns and public boarding houses. By an act of 1872, ch. 100, § 47, such cities were given authority to levy and collect license taxes on an enlarged list of trades and occupations, which included taverns and public boarding houses. By an act of 1881, ch. 40, § 3, the list of occupations, etc., subject to city license taxes was further expanded into its present scheduled classification, viz.:
“The city council shall have exclusive authority to levy and collect a license tax on auctioneers, artists, agents (including insurance, real estate, loan and mercantile agents), book or map agents or canvassers, boarding houses, billiard tables, bridge companies or bridge corporations, bankers, banking houses or corporations, bowling alleys, corporations, contractors, commission merchants, concerts, cattle dealers, coal yards, corn doctors, circuses, doctors, dentists, druggists, express companies and agencies, exhibitions for pay, fortune tellers, gaugers, gift enterprises, grocers, hotels, hotel runners or solicitors, horse dealers, hackney or livery carriages, horoscopic views, innkeepers, inspectors, insurance companies (including accident, life, fire or marine insurance companies), ice dealers, intelligence offices, livery-stable keepers, lung testers, lawyers, merchants, museums, menageries, muscle testers or developers, magnifying glasses, newspapers and publishing houses, omnibuses, public buildings, halls and grounds, peddlers, pawnbrokers, photographists, porters, public lecturers for pay, patent-right dealers, public masquerades, public balls and street exhibitions, pistol or shooting galleries, private hospitals, retailers, railroads and railroad companies (including street or horse railroads), shows, stockyards, theaters and theatrical exhibitions, taverns, ten-pin alleys (without regard to the number of pins used), telegraph and telephone companies,-wood yards, wagon yards, and all wagons and other vehicles transporting merchandise or passengers for pay.” (R. S. 14-415.)
It will thus be seen that the statute authorizing cities of the second class to levy and collect license taxes has undergone no change in forty-four years. And since rooming houses are not expressly included in the list of businesses which may be subjected to license taxes, the court is bound to hold that the ordinance is void as to the exaction of license taxes on rooming houses, unless they may fairly be characterized as boarding houses, hotels or taverns, or unless their conductors can be fairly designated as innkeepers.
The establishment maintained by defendant, according to the agreed statement of facts—
“Consists of a two-story building containing seven or more rooms, equipped and maintained as bedrooms; that at all times hereinbefore mentioned the said defendant let said rooms to roomers, either by day, week or month; that he did not furnish them with or sell them food or refreshments.”
It seems clear that defendant’s rooming house was not a “boarding house” within the terms of the statute. A boarding house furnishes its patrons with both food and lodging. Neither is it a hotel, for the latter is a business institution which is held out to the public as a house where all travelers and strangers or other transient persons having means of payment and of proper demeanor and fair repute who choose to patronize it must be received-- and accommodated, to its capacity, without any previous agreement for accommodation or agreement as to the duration of their stay.
The term “innkeeper” is falling into disuse, and his business is largely obsolescent. An “inn” differed from a hotel in that the inn not only offered accommodations to persons, but stabling and feed for their horses and safe-keeping for their baggage and impedimenta. (Pinkerton v. Woodward, 33 Cal. 557.)
The term “tavern” is also growing obsolete. It was a public place where food and intoxicating liquors were furnished to guests, and usually where liquors were sold to be drunk on the premises.
Changing customs have developed two kinds of hotels — those which serve meals to their patrons as part of their regular business, and those which do not serve meals or leave it to the option of their guests whether meals are to be served or not. But so long as such establishments are held out to the public as hotels of the one kind or the other, they must receive, to the limits of their capacity, all respectable persons who choose to come and who are able and willing to pay for such accommodations as the hotel professes to furnish.
But a rooming house is merely a house or building where there are one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to such persons as he chooses to receive. A rooming house is not necessarily a public place to which any well-behaved person of means can go and demand lodgings as a matter of right, as he can do at a hotel. The keeper of a rooming house may receive whom he will, reject whom he will, and usually he makes special contracts with each of his guests concerning compensation and length of stay. The term rooming house is new because .the existence of such places is recent; but the only material difference between a boarding house and a rooming house is that a boarding house furnishes meals. In 32 C. J. 529 it is said:
“The distinction between a hotel or inn and a boarding house or lodging house is that the former is for the accommodation of all persons who choose to come and who are in a condition fit to be received, without any prior or express agreement as to the duration of their stay, while the latter is for the accommodation of such persons as-the proprietor chooses to receive under an express contract for a certain period of time and at a certain rate.”
In The State v. Brown, 112 Kan. 814, 212 Pac. 663, the keeper of a restaurant and lunch room refused to serve a negro with food and was prosecuted under a statute, R. S. 21-2424, forbidding “managers in charge of any inn, hotel-or boarding house” from making distinction between persons on account of race or color. In affirming the judgment of the district court, which had quashed the information because a restaurant or lunch room was neither an inn, a hotel nor a boarding house, this court said:
“In the state’s brief it is contended that a restaurant or lunch room is a hotel or inn and also a boarding house within the meaning of the statute. The words ‘hotel’ and ‘inn’ are practically synonymous (4 Words and Phrases, 3625; 2 Words and Phrases, 2d series, 1083, 1084), although a distinction between them is sometimes made, as by calling an inn of the better class a hotel (Webster’s International Dictionary). An inn, as the term is ordinarily used, offers to travelers both lodging and food. (See Words and Phrases, title ‘Inn.’) ‘A coffee-house or a mere eating house is not an inn. To constitute an inn there must be some provision for the essential needs of a traveler upon his journey, namely, lodging as well as food.’ (Bouvier’s Law Dictionary, Rawle’s Third Revision, 1582.) ‘The keeper of a restaurant who has no beds for the accommodation of travelers is not an innkeeper; ... a mere restaurant or eating house is not an inn.’ (Wandell’s Law of Inns, etc., 27.) ‘The keeper of a restaurant or café, so far as those terms are used to designate a mere eating house, where no provision is made for lodging the guest, is not an innkeeper.’ (16 A. & E. Encycl. of L. 512.)
“A boarding house differs from an inn or hotel both in being less public in character and in arranging with its guests to provide for them during some more or less definite period. (8 C. J. 1132; 16 A. & E. Encycl. of L. 510, 511; 4 Words and Phrases 3624.) The same considerations would obviously distinguish it from a restaurant or lunch room.” (p. 815.)
It is argued that rooming houses are more in need of police supervision than most other lines of business. That may be true. Doubtless some are; but the court cannot ignore the fact that throughout the state there are many worthy people who are compelled to augment the family income by letting out a few spare rooms of their homes to roomers, and to that extent they are.conducting rooming houses — of a kind, too, which seldom requires police supervision; • and this consideration suggests the possibility that the omission of rooming houses from the statute may have been deliberately intended by the legislature.
The court notes the fact that rooming houses are defined by the hotel-inspection act and are subjected to licensing and inspection by the state hotel commissioner, R. S. 36-101 et seq., but that results from the specific terms of the statute. Here we are asked to enlarge the specific terms of another statute — the one which alone gives cities of the second class authority to exact license taxes. If the statute conferring power on the plaintiff city to exact license taxes did not descend to such particularity of detail, if it provided for the exaction of license taxes on every kind of business conducted within the city, or used other general language to the same effect, there would be fair room for holding that rooming houses were within such all-inclusive terms. But when the statute undertakes to enumerate just what kinds of business, trades and occupations may be subjected to license taxes, then the rule expressio unius est altering exclngio applies. And as rooming houses are not expressly mentioned in the statute, they are exempted therefrom. See the analogous case of Garden City v. Abbott, 34 Kan. 283, 8 Pac. 473.
The court discerns nothing in the agreed statement of facts which could be fairly construed .as an admission that defendant was in fact conducting a hotel.
It follows that the judgment must be reversed and the cause remanded with instructions to discharge the defendant.
It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on an oil drilling contract. The plaintiff prevailed and defendants appeal.
The facts were substantially as follows: The plaintiff was drilling oil wells in Miami county. The defendants, who resided in Kansas City, Kan., owned some leases in Johnson county, and procured the plaintiff to drill three wells for them. Two of the defendants went to see the plaintiff near La Cygne, after which he (plaintiff) interviewed the defendants in Kansas City, Kan. Later the defendants prepared a contract which they took to the plaintiff and which was executed by him. By the terms of this contract the plaintiff agreed to move one of his drilling rigs to the defendants’ leases in Johnson county, and to drill three wells at locations to be designated by the defendants, each well to be not less than .five hundred feet in depth, and not to exceed one thousand feet, at $2.25 per foot for the drilling, the defendants to furnish the casing or tubing, and he to furnish everything else. The defendants were to have the right to stop the drilling of any one of the three wells anywhere between 500 feet and 1,000 feet in depth. While the contract did not specifically state that the wells were to be drilled for gas or oil, there was no mistaking the intention. The contract also provided that the defendants were to pay $400 of the expense of moving the rig from La Cygne to Johnson county. This they did after the rig was moved. The plaintiff began drilling under the contract at a location designated by the defendants on or about November 1, 1920. He drilled the first well to a depth of 823 feet, when he called upon the defendants to furnish him 823 feet of 4%-inch casing, and notified them that he could not continue drilling further until that casing was furnished. He continued to call upon them for the casing from time to time by oral demands, but did not receive it,.nor did he receive any definite, answer of any kind. On February 4, 1921, he served upon the defendants a written demand informing them that he was still waiting for instructions and directions from them as to whether or not he was to drill this first well to a greater depth, advising them that under the contract they had the right to demand that he drill it on down to the depth of 1,000 feet; calling to their attention the fact that on December 27 he had reached the depth of 823 feet, and had made demand upon them for casing, and that it had never been furnished. He also notified them that if they did not desire to drill that well deeper, he was ready to proceed upon the drilling of the other two wells provided for in the contract, and demanding that he be given locations for drilling the other wells, or one of them, and advising them what casing he would need in order to start another of the wells, and also notifying them that he was at an expense of $50 per day while his drilling rig and outfit remained idle, waiting upon them for instructions, and that he would expect to hold them responsible for any loss he might sustain by reason of their failure to perform the terms of the contract, or by reason of any hindrance or delay.
The action was filed May 13, 1921. Therein plaintiff sought to recover for drilling one well 823 feet at the contract price of $2.25 per foot, amounting to $1,851.75. Also for damages for refusal of defendants to permit him to drill the two additional wells to a minimum depth of 500 feet”. Trial to a jury resulted in a verdict for plaintiff amounting to $4,881.75. Thé jury answered special questions in which they itemized the amounts making up the verdict, the items being as follows:
Drilling first well at contract price................................. $1,851.75
.Damages for failure to permit him to drill two additional wells to minimum depth of 500 feet each................................. 1,000.00
Damages arising by reason of his rig, tools and outfit being kept shut down and idle for a period of 64 days, at $25 per day.............. 1,600.00
.Damages arising by reason of labor employed by plaintiff — one employee at $10 per day for 43 days................................ 430.00
Error is alleged because the court permitted a somewhat extensive cross-examination of the defendant Eggleston who had acted as president or managing officer for the defendants. One of the chief issues in the case was whether or not, under the terms of the contract, the plaintiff had spoiled the well. Eggleston had testified that he was acting as president and was superintendent of the drilling operations for the defendants; that he located the field and finally located the point at which the first well should be drilled by walking over it holding a forked peach twig in his hand, and when the twig revolved he knew that there was oil below. While the cross-examination may have been more extensive than is usual, we are unable to say that it substantially prejudiced the rights of the defendants.
Defendants next complain because the plaintiff was permitted to introduce testimony to the effect that, having drilled one well upon the lease in question to a depth of 823 feet, and knowing the formation below the surface, he could estimate how long it would take him to drill two additional wells to a depth of 500 feet. This testimony cannot be said to have been incompetent. Doubtless it was the best evidence that could have been produced upon this point. Other complaints of the introduction of evidence or the refusal to receive evidence have been considered, but we are unable to discover any error affecting prejudicially the rights of the defendants. Complaint is made of the instructions. We have examined the instructions and conclude that they fairly covered the issues in the case. Complaint is made that the verdict was not supported by the evidence. The complaint is not well taken. We do not deem it necessary to set down or analyze the evidence. We have examined and considered it, and conclude that it was abundant to support the verdict and special findings. We discern no error which would warrant a reversal. (See Shanks v. Oil & Gas Co., 116 Kan. 525, 227 Pac. 251.)
The judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a rehearing. The plaintiff, a resident citizen of Baxter Springs, was called into active service in the army on July 16, 1918, and served therein until June 29, 1919, when he received an honorable discharge. His application for compensation was regular in all respects (unless as hereinafter noted), and he frankly and truthfully gave the compensation board all the facts concerning' himself and his military service.
Compensation was denied because of the following circumstances: Until April, 1918, plaintiff had been a resident of Missouri, where he practiced his profession as a dentist. In August, 1917, he accepted from the government a commission as first lieutenant in the dental reserve corps in the United States army, but was not called into service thereunder for nearly a year thereafter. In April, 1918, he removed to Baxter Springs with his family, where he established a permanent abode and practiced his profession until ordered to report for service at Fort Sam Houston, Texas, in July, 1918.
These facts would probably have been deemed sufficient to entitle the plaintiff to compensation under the Kansas statute but for plaintiff’s prior acceptance of a commission in the dental reserve corps of the United States army in 1917, while he was still a resident of Missouri; and it so happens that the state of Missouri also enacted a soldier’s compensation act which reads, in part, as follows:
“Each person, hereinafter called the ‘soldier,’ who was a bona fide resident of the state of Missouri at least during the twelve months just prior.to the 6th day of April, 1917, and who served honorably in the military or naval forces of the United States, including army nurses, at any time between the 6th day of April, 1917, and the 11th day- of November, 1918, shall be entitled to receive from the state of Missouri, out of the funds created by this act, as a bonus, the sum of ten dollars per month.” (Laws of Mo., 1921, Sp. Ex. Sess., p. 7.)
Under the peculiar features of that Missouri statute, plaintiff honestly could and did qualify for Missouri compensation, and received from that state $120 in accordance with the terms of the Missouri statute.
Do those facts bar plaintiff from compensation under the Kansas statute? The case is unique, but the two statutes are so different in their terms that it is quite possible for a soldier to qualify under both acts. And Lieutenant Parrish appears to have done so. He practiced no evasion or deceit. He frankly disclosed all the facts to the compensation board. He was a bona fide resident of Kansas at the time he commenced his army service in the World War. He is and always has been a resident citizen of Kansas since April, 1918, some months before his service as a soldier began.
We have held that a Kansas soldier is entitled to compensation from the time he actually took up the duties, toils, discipline and hardships of army service, not from the time he merely identified himself with some military organization like the national guard or one of the various army reserves maintained by the government. (In re Soldiers’ Compensation Appeals, 116 Kan. 601, 227 Pac. 1117.) In Dellinger v. Soldiers’ Compensation Board, ante, p. 147, 230 Pac. 300, it was held:
“Under the compensation acts, R. S. 73-101 et seq., a claimant’s right to compensation is governed by the time he served in the World War pursuant to his call into service, and is not governed by the mere date of his enlistment in one of the military reserve organizations maintained by the government.” (Syl. ¶ 1.)
We have also held it immaterial what the residence of a professional soldier might have been when he first became connected with the United States army if such soldier was in fact a bona fide resident of Kansas and maintaining a residential domicile in this state when his service as a soldier in the World War began. (See the cases McAleese, Sebron, and Fuller, in In re Soldiers’ Compensation Appeals, 116 Kan. 601, 227 Pac. 1117.)
After mature reflection, the court is constrained to hold that plaintiff’s claim is squarely within the terms of the Kansas compensation act, notwithstanding he is also the recipient of soldier’s compensation from the state of Missouri. Our per curiam judgment of July 5,1924, is therefore set aside and the judgment of the district court is affirmed. | [
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Swinehart, J.:
The issue neatly presented on this appeal can be fairly stated as follows; Does K.S.A. 46-901, et seq., provide immunity protection for certain governmental entities when that entity (acting through its employees) has committed an intentional tort (invasion of privacy, debtor harassment, in connection with the non-return of library books)? If so, the defendant Fort Hays Kansas State College, a governmental entity, is free from liability as a matter of law, and judgment notwithstanding the verdict must be entered in its favor.
K.S.A. 46-901, by its terms, applies to negligence “or any other tort.” The well-established rule of law in Kansas is that when a statute is plain and unambiguous, the appellate court must give effect to the intention of the legislature as expressed. It is not the duty of the appellate court to determine what the law should or should not be when such a plain and unambiguous statute exists. The purpose and intent of the legislature alone governs when that intent can be ascertained from the statute. (Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P. 2d 1363; State v. Dumler, 221 Kan. 386, 559 P. 2d 798.)
After considering the plain, all-inclusive language of the statute, we are compelled to conclude that it provides the defendant college governmental immunity as to intentional torts, and, therefore, judgment should be rendered for defendant.
Plaintiff attacks the constitutionality of K.S.A. 46-901. This issue was resolved adversely to her position in Brown v. Wichita State University, 219 Kan. 2, 547 P. 2d 1015.
The judgment is reversed. | [
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Spencer, J.:
In an action to recover the proceeds of a thirty-year decreasing term life insurance policy, the trial court found that the policy had lapsed prior to the death of the insured for nonpayment of premiums, entered judgment for the defendant, and plaintiffs have appealed.
For brevity, all of the several appellants will hereinafter be referred to as plaintiffs and the appellee as defendant.
Trial was to the court, which made findings of fact and conclusions of law as follows: (Paragraph numbers have been supplied.)
1. “Plaintiff is Administrator De Bonis Non of the Estate of James O. Stafford, Deceased, and Letters of Administration were issued by the Probate Court of Sedgwick County, Kansas, on November 21, 1972. Defendant, Fidelity Life Association, a Mutual Legal Reserve Company, is a corporation authorized to engage in the life insurance business within the State of Kansas. Defendants, Jody Stephenson, Russel Wilkinson, Thomas J. Jennings, and Angela Stafford are the contingent beneficiaries of the life insurance policy issued on decedent, James O. Stafford, on September 1, 1970.
2. “James and Betty Rae Stafford were joined together in wedlock in January, 1970. Betty Rae brought into this marriage three children by former marriages: Jody Stephenson, Russel Wilkinson, and Thomas J. Jennings. James brought into this marriage one child by a former marriage. Angela Stafford. No children were born of this marriage.
3. “In April, 1970, the Staffords purchased a home on North Doris Street in Wichita, Kansas. As it turned out this home became the residence not only of James, Betty Rae and Betty Rae’s three children, but also Jody’s husband and her one year old daughter.
4. “When the home was purchased, it carried a $15,000 mortgage. Shortly after buying the home the Staffords received phone calls from insurance salesmen with respect to various mortgage protection plans. Within a span of several months the Staffords purchased $10,000 worth of mortgage protection from Mutual of New York Life Insurance Company, $10,000 from Standard Life and Accident Insurance Company of Oklahoma City, $25,000 from Aetna Life and Casualty Insurance Company, and, $20,000 from Fidelity Life Association. These four insurance policies totaled $65,000 coverage on a $15,000 mortgage and required monthly payments of $65.28.
5. “Without doubt Betty Rae was business manager of the Stafford home. She wrote the checks, paid the bills and borrowed money. An example of Betty Rae’s dominance can be seen in the fact that their Fourth National Bank checking account was solely in her name.
6. “Ron Stratton, a soliciting insurance agent with Fidelity, was one of the salesmen who contacted the Staffords about mortgage protection. In a telephone conversation around July 20, 1970, Betty Rae invited Ron out to discuss insurance with James. On the evening of July 27, 1970, Ron, and Joe Beyrle, Fidelity’s state agent, visited the Staffords in their new home. Mr. Beyrle talked to James about mortgage protection while Ron and Betty Rae engaged in ‘small talk.’ During that meeting, one of Mr. Beyrle’s primary functions was to establish Mr. Stratton as the company representative; and as the representative of the company, that Mr. Stratton would take care of all problems that might arise, and Mr. and Mrs. Stafford for all their needs should look to Mr. Stratton as the company’s representative to assist them. At the conclusion of Mr. Beyrle’s sales talk, James, after soliciting Betty Rae’s approval, filled out an application for insurance. James elected to pay on a monthly basis with premiums to be automatically taken out of Betty Rae’s bank account with the Fourth National Bank. (Betty Rae proceeded to pay the first month’s premium, which, by the time James’ insurance policy was approved, covered the month of September, 1970.) This was the last contact James or Betty Rae had with Joe Beyrle.
7. “Subsequently, James took a medical examination. In the latter part of August, 1970, James’ insurance policy was approved by Fidelity’s home office in Fulton, Illinois and was sent back to Ron. On the 29th of August Ron delivered it to the Stafford home. Ron went into great detail explaining the policy’s terms to James and Betty Rae. He went over the entire policy with them explaining that James had taken out a $20,000, thirty-year decreasing term insurance policy. Ron explained that the insured, James Stafford, was the owner of the policy and that the monthly premium on it would be $22.90. Ron emphasized the premium would be due on the first day of each month as provided on page 2 of the insurance policy. He went on further to say that premiums were due and payable in advance at the Fidelity home office or when an authorized Fidelity Representative accepted a premium in exchange for Fidelity’s receipt signed by the secretary of the company. Ron reminded James and Betty Rae that payment of premiums did not continue the policy in force longer than the time for which the premium payment is made.
8. “With respect to the grace period, Ron told James and Betty Rae that 31 days without interest charge would be allowed in the payment of each premium after the first premium. Failure to pay any premium on or before the date it falls due would put the policy in default, although it would continue in force during the grace period.
9. “Ron also explained that reinstatement of a policy in default would be allowed at any time within five years after date of default in payment of premiums upon presentation of evidence of insurability satisfactory to the company, the payment of all premiums in arrears, and the payment of interest at 5 per cent per annum.
10. “Ron informed James and Betty Rae that only the application and policy constituted the entire contract. He explained that only the President, Vice President, Secretary, or Assistant Secretary could change, modify or waive the policy provisions and then only in writing. He pointed out the policy provisions which stated that, ‘No agent or person other than the above named officers has authority to change or modify this policy or waive any of its provisions.’ Finally, Ron pointed out that under the terms of the insurance policy, Betty Rae was made beneficiary.
11. “While visiting with James and Betty Rae on the 29th of August, 1970, Ron was also given the October, 1970, premium. A thriftway card was then filled out authorizing the Fourth National Bank to honor drafts on Betty Rae’s account.
12. “In September, 1970, Betty Rae telephoned Ron to request that contingent beneficiaries be added to the insurance policy. Ron honored this request and added, as contingent beneficiaries, Betty Rae’s three natural children, Jody Stephenson, Russel Wilkinson and Thomas Jennings. He also added James’ daughter, Angela, who was not living with the Staffords. Some time later when the insurance policy was returned from the home office, Ron delivered it to the Stafford home.
13. “Ron had no further contacts with the Staffords until the month of November, 1970. Some time around the 20th of November, 1970, Ron received a letter from Fidelity informing him that the November premium had been returned for insufficient funds. Ron immediately notified Betty Rae of this fact and she replied that it was the bank’s fault so she was going to. change banks. She then asked Ron to come out and write up a thrift card on a new bank. Ron honored this request and sent in the notice of change to the home office. Betty Rae made no effort to pay Ron the November, 1970 premium.
14. “During the first part of December, 1970, Ron received a second notice from Fidelity informing him that Betty Rae had not paid the November, 1970, premium. This notice was sent to Ron, C. A. Longhofer and Associates, Inc., and Joe Beyrle. Ron called the Staffords and talked to Betty Rae about the lapsed policy. He explained to her in detail what was the effect of a lapsed policy. He told her the only way to reinstate the policy so as James would be insured was to pay all premiums in arrears — that being the premiums for November and December, 1970. Betty Rae replied that it would take awhile to raise the money but she would try.
15. “At all times Fidelity Life Association dealt with Betty Rae as the agent of James O. Stafford, the insured, and developed a business custom of discussing insurance matters with her and accepting payments of premiums from her.
16. “On or about December 28,1970, Ron received a letter from Fidelity Life Association directing him to collect from James the November, 1970, thrifway (sic) check. Ron next heard from Betty Rae on December 28,1970. She telephoned and asked him to come by her home that evening and pick up the November and December premiums. Ron agreed to pick up the cash but told her the insurance policy had lapsed and would not be reinstated until accepted by the home office.
17. “That evening he drove out to the Stafford home, picked up the money in the amount of $45.80 in cash and wrote out a receipt acknowledging this fact. At that time he told Betty Rae that he was not sure the policy could be reinstated in time for the January, 1971, billing since she was paying so late in December, 1970. Betty Rae nevertheless asked him to send in this money for her and also asked him to change her method of payment from the thriftway plan to billing her directly.
18. “Later that evening Ron sent the payment via an agency check to Fidelity’s home office, and pursuant to Betty Rae’s request, asked them to change her method of billing. Fidelity Life Association never sent any documentation to James and Betty Rae stating that the policy was reinstated, nor did the defendant, Fidelity Life Association, return the premium payments in the amount of $45.80 to James and Betty Rae. Nor was any direct monthly billing ever received by James and Betty Rae after the request was made.
19. “Betty Rae paid no premiums in January, 1971, and, as a result, the policy lapsed on February 1, 1971.
20. “Ron next heard from Betty Rae on February 2,1971. When Ron arrived in his office there was a message on his desk to return her call. Ron called Betty Rae and was informed by her that she had not received a bill from Fidelity for the January premium as had been requested. She asked him to come out and pick up the premium.
21. “Ron’s conversation with Betty Rae concerning the effect of paying the January, 1971 premium came over the telephone on February 2, 1971. When Ron returned Betty Rae’s call she asked him if by paying the January premium this would put the policy back in force. Ron replied that payment of the January premium would probably reinstate the policy once it was received by the home office.
22. “That evening Ron drove out to the Stafford home. When Betty Rae realized she was unable to come up with enough cash she asked Ron if she could write a check which he would hold because she did not have enough money in her bank account to cover it. Ron replied that he would hold the check for her.
23. “At this point there is some dispute as to what Ron next told Betty Rae. It is the position of Betty Rae and all those claiming under the policy that she asked Ron if holding this insufficient fund check would put the policy back in force. Ron, at the first and second criminal trials, paraphrased their conversation as:
‘And she said, now, if I write a check, will this constitute payment, and I said, well, yes, I think it will.’
As Ron explained, this was the essence of Betty Rae’s conversation rather than the actual conversation between them. Betty Rae never used the words ‘constitute payment.’ Those were Ron’s words at the two criminal trials as an explanation for her question, ‘Will you mail this in for me?’ and his reply that he would ‘mail it in for her and this would be the same as her mailing it in.’
24. “After Ron indicated he would hold Betty Rae’s check she proceeded to write an insufficient fund check on the Fourth National Bank. She informed Ron of this fact and asked him to return on February 3,1971, so she could exchange the insufficient fund check for cash. Ron agreed to do this, then accepted the check and without looking at it placed it in his briefcase.
25. “When he returned to his office that evening he noticed the check had been back dated td February 1, 1971. To his amazement the check also had been made out for two different amounts. Betty Rae had written in arabic numbers the correct amount — $22.90; but she had spelled out an incorrect amount — ‘Twenty Dollars and 90/100.’
26. “Ron, pursuant to the agreement with Betty Rae, attempted to pick up the payment on February 3,1971, but was unable to do so because she was not home. In fact, the evening of the 3rd, she called up and apologized for not being home. Although Ron did not stop by the Stafford home the following evening, February 4, 1971, nevertheless, Ron received a telephone call from Betty Rae’s son, Russel, who said his mother asked him to call and apologize for not having been there.
27. “Betty Rae Stafford killed her husband on February 5, 1971, having made no effort to pay Fidelity as she had promised. Betty Rae Stafford, the primary beneficiary under said policy, was subsequently convicted in the District Court of Sedgwick County, Kansas, of the felonious killing of the decedent insured, James O. Stafford.
28. “On February 26,1971, Mr. Robert R. Arnold tendered a Cashier’s Check in the amount of $45.80 to the defendant, Fidelity Life Association. Pursuant to K.S.A. 59-513, as amended, Betty Rae Stafford cannot receive the proceeds of said insurance policy because of her conviction of the felonious killing of the decedent insured, James O. Stafford. Richard A. Schull (sic), on behalf of the estate of the decedent insured, James O. Stafford, made demand on Fidelity Life Association for payment of policy proceeds on Policy Number 348050 issued on the decedent insured, James O. Stafford. Defendant, Fidelity Life Association, refused the demand for payment on the grounds the policy had lapsed for non payment of the December, 1970 premium; and further stated that at the time of James Stafford’s death, the policy was not in force.
29. “The evidence does not support the defendant, Fidelity Life Association’s, allegations that the policy was entered into based upon misrepresentation, illegal purposes, or with the intention to defraud the defendant, Fidelity Life Association.
“CONCLUSIONS OF LAW
“The Court concludes that while Ronald Stratton may have had authority from the defendant, Fidelity Life Association, to collect premiums, and effect reinstatement of policies which had lapsed, either expressly or impliedly, he had no authority, express or implied, to accept an insufficient or hold check for that purpose. Accordingly, the actions of Stratton on February 2,1971, did not operate to reinstate the policy in question. Accordingly, the judgment will be entered for the defendant, Fidelity Life Association, for costs against the plaintiff and all other defendants.”
Although there has been no challenge to any particular finding of the court, there is an apparent conflict in the facts as set forth in the argument contained in the briefs of the parties. A review of the record reveals that each of the trial court’s findings is supported by substantial competent evidence and we accept those findings as the facts in this case. (Lehar v. Rogers, 208 Kan. 831, 494 P.2d 1124.)
The policy contained provisions as follows:
“How Premiums are Payable. Premiums are due and payable in advance at the Home Office of the Company or to an authorized representative of the Company only in exchange for the Company’s receipt signed by the Secretary of the Company. . . .
“Grace Period for Payment of Premiums. A grace of thirty-one days without interest charge will be allowed in the payment of every premium after the first. If any premium is not paid on or before the date it falls due, this Policy is in default but shall continue in force during the grace period. . . .
“How a Policy in Default May Be Reinstated. A Policy in default may be reinstated at any time within five years after date of default in payment of premium upon presentation of evidence of insurability satisfactory to the Company, the payment of all premium arrears, and the payment of interest at five per cent per annum, compounded annually, on each unpaid premium from its due date. . . .”
In addition, the policy contained provisions for conversion to a permanent type of insurance without evidence of insurability, the usual clause making it incontestable after the expiration of two years from the date of issue, the ordinary provisions regarding suicide within two years from the date of issue, and for dividends to be credited at the end of the second policy year.
Plaintiffs contend that the policy had not lapsed on February 1, 1971, but instead was in its grace period as of that date, and the trial court erred in its finding to the contrary. They reach this conclusion by noting that the policy had lapsed on December 1, 1970, for nonpayment of premium for November and December of that year; that two monthly premiums were paid on December 28, 1970, which should have been allocated to the month of November, 1970, the grace period, and for the month of January, 1971, and by this means the policy would have been within its grace period on February 5, 1971, the date of death. They argue that to allocate a payment for December, 1970, when the policy was in a lapsed state, would mean that the insured would be paying for no coverage because there was no coverage during that period; that such a result would be inequitable and unfair; and to require payment for December, 1970, where there was no coverage, would require payment without consideration under the contract, which would be unconscionable. This argument is presented as the second point on appeal, but is considered here first, for if in fact the policy was in the grace period on the date of death, there would be no need for further consideration, for clearly, the policy proceeds less the unpaid premiums would then have been due the contingent beneficiaries. However, we do not find the plaintiffs’ argument on this point to be persuasive.
Plaintiffs cite authority from the state of Missouri to the effect that such a clause as that contained in the policy relating to reinstatement should be construed to not require payment for lapsed periods of time because “that would require the insured to pay something for nothing.” Such appears to be the rule in Missouri. Beginning with the case of Watson v. Commonwealth Life & Accident Ins. Co., 17 S.W.2d 570 (Mo. App. 1929), it was held that to require payment of premiums accrued during the period of lapse “would require the insured to pay something for nothing,” and since premiums should not be required for periods where no coverage was in existence, premiums paid after the period of lapse should be apportioned to the grace period and the period after reinstatement. Subsequent cases recognize and apply the rule. See Billings v. Independent Mutual Fire Ins. Co., 251 S.W.2d 393 (Mo. App. 1952); Randall v. Western Life Ins. Co., 336 S.W.2d 125 (Mo. App. 1960); Bensinger v. California Life Insurance Company, 459 S.W.2d 511 (Mo. App. 1970).
A contrary result has been reached in New Jersey. Feder v. Bankers National Life Insurance Company, 100 N J. Super. 458, 242 A.2d 632 (1968) involved a reinstatement clause virtually identical to that presented here. The plaintiffs there presented an argument concerning non-coverage during a lapse period of twenty days between the end of the grace period and reinstatement. If the premiums paid were applied to periods after the non-coverage period, then the policy would have been in effect under its grace period at the time of the insured’s death. That is the same argument advanced here. The court said:
“Plaintiff argues that literal enforcement of the Reinstatement clause as postulated above is unjust in that the insured would be required to have paid retroactively a premium for a period of time during which coverage for death did not in actuality exist, the policy having during that period been in a state of lapse. While that fact is true, so far as it goes, the result is not unfair, and the Reinstatement clause clearly contemplates it, since the insured does get the major benefit of preservation of the original age-determined premium rate — a benefit which can be very substantial if lapse and reinstatement take place some years after original issuance or in any case where reinstatement is had close to the expiration of the five-year period allowed therefor after lapse. There are other collateral policy benefits to the insured in the retroactive character of the reinstatement. The policy reinstatement clause obviously must be given a uniform construction, even in cases where lapse and reinstatement follow within a relatively short period after original issuance.” (242 A.2d at 634.)
In the present case, defendant argues that the insured would retain certain unbroken benefits under the policy by virtue of reinstatement: “continuity of policy reserves, contestability and suicide clauses and . . . avoided the operation of any conversion limitation.” They point to the rule that reinstatement of a lapsed policy does not effect a new contract but continues the original. Franklin Life Ins. Co. v. Parish, 109 F.2d 276 (5th Cir. 1940); Feder v. Bankers National Life Insurance Company, supra.
Plaintiffs suggest that this is a question of first impression in Kansas, and so it appears to be. They note the rule in Missouri that ambiguities in insurance policies are to be liberally construed in favor of the insured and against forfeitures or lapse, which is also the rule in Kansas. They suggest that the adoption of their theory would work no hardship on insurance companies, because there would be no coverage during a period of lapse, and it would benefit the consumer who would then be relieved of paying “something for nothing.”
As stated in Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P.2d 477:
“The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. If, however, the contract is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. . . .” (202 Kan. at 417.)
The premium payment section of the policy here in question, which contains the provision relating to reinstatement, sets forth how premiums are payable, defines the grace period, policy years, and how a policy in default may be reinstated. There is nothing which restricts or limits coverage provided in the policy and we find nothing in that section which the average, ordinary, reasonable person with ordinary understanding would not readily comprehend. Furthermore, the trial court made special note of the fact that when the policy was approved by the defendant and delivered to the insured’s home, Stratton went into great detail explaining the terms of the policy to the insured and to his wife, Betty Rae.
“If a policy of insurance is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, as an average or reasonable person with ordinary understanding would construe them, when used to express the purpose for which they were employed in the policy. . . .” (Clark v. Prudential Ins. Co., 204 Kan. 487, 492, 464 P.2d 253.)
It is true that if the insured had died during the month of December, 1970, while the policy was in a lapsed state, the defendant no doubt would have refused to pay the policy proceeds. It is also true that there were benefits to be derived by maintaining the continuity of the policy in force under the original issue date, not the least of which would be the original age-determined premium rate and other benefits which exist by virtue of the date of issue, some of which are noted above. Since the contract provided for a monthly premium and that premium was not paid on or before the date it was due, the policy was in default, but continued in force during the grace period. If the premium was not paid within the grace period allotted, it had lapsed, subject to being reinstated as provided in the contract. As stated in Clark v. Prudential Ins. Co., supra, at 491:
“When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P.2d 571.) . .
Accordingly, we hold that the trial court did not err in its conclusion that the policy lapsed on February 1, 1971.
Having so determined, the issue then to be resolved is whether the issuance and delivery of the insufficient fund check by Betty Rae to Stratton effected a reinstatement of the policy.
The trial court concluded that, regardless of whether Stratton may have had the authority to reinstate the policy, he had no authority to accept an insufficient or hold check for that purpose.
Plaintiffs argue that Stratton, as the soliciting agent, had authority to collect premiums and to do so by means of a check, and that actual receipt of the check by the company is immaterial if the agent did receive it. Riddle v. Rankin, 146 Kan. 316, 69 P.2d 722. They point out that the giving of a check may be an absolute payment where the parties agree it shall have that effect or where the circumstances clearly indicate that such was their intent, and that this is so even though the check is for insufficient funds and may subsequently be dishonored. They argue that Stratton represented to Betty Rae, who was then representing her husband, the insured, that he would accept the insufficient fund check for the January premium and hold it, and that payment in this manner would put the policy in effect and keep the policy in force.
On the other hand, defendant argues that the statements made by the plaintiffs challenge the findings of the trial court in that they are contrary to those findings; that as a general rule, a premium is not paid where the check given for that purpose is worthless, and at the very most, the check was a conditional payment, the conditions for which failed when Betty Rae failed to pay the cash to redeem it. Defendant also presents arguments as to waiver, estoppel, fraud, and the requirements for reinstatement as contained in the policy.
The trial court made no finding as to the extent of the authority granted Stratton by the defendant, nor do we deem it necessary to do so, for the policy was not to be reinstated in any event until payment of all premiums then in arrears.
The trial court, by its finding No. 21, determined that Stratton told Betty Rae that payment of the January premium would probably reinstate the policy once it was received by the home office. Nowhere in the findings of the trial court do we find a determination by the court that Stratton did accept the no-fund check for the January premium, merely to hold it; but rather, by its finding No. 24, after Stratton had indicated he would hold Betty Rae’s check, “she proceeded to write an insufficient fund check on the Fourth National Bank. She informed [Stratton] of this fact and asked him to return on February 3, 1971, so she could exchange the insufficient fund check for cash. [Stratton] agreed to do this, then accepted the check and without looking at it placed it in his briefcase.”
As stated in 43 Am.Jur.2d, Insurance, § 565, p. 582:
. . The ordinary rule is that it will be assumed that the acceptance of a check is conditioned upon the check’s being honored upon proper presentation, so that if payment is refused and in the meantime the period in which payment could be made has elapsed, the insurer may declare the policy forfeited for nonpayment of premiums. . . . However, by an express or implied agreement between the parties a check may be taken in absolute satisfaction of the premium claim, so that if the check is dishonored the insurer is not entitled to declare the policy forfeited for nonpayment, but is relegated to its action on the check.”
See also 6 Couch on Insurance 2d, § 31:45, p. 53. Whatever reason Stratton may have had for accepting a no-fund check is not made clear from the record, but certainly it is clear from the findings of the court, supported by uncontradicted evidence, that his acceptance of that check was conditioned upon its being exchanged for cash the following day, February 3, 1971. Such was the agreement; but this was not done, even though Stratton, pursuant to the agreement with Betty Rae, returned to the insured’s home on that date for that purpose. As stated in Grant v. Reed, 165 Kan. 27, 193 P.2d 214:
“The giving of a check by a debtor for the amount of his indebtedness to the payee is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt. The presumption is that a check is accepted on condition that it shall be paid. With the exception of a few jurisdictions the authorities are unanimous in supporting this rule. . . .” (p. 30.)
As the exchange of the insufficient fund check for cash was a part of the agreement for the issuance and acceptance of that check, and that condition was not performed, the no-fund check was not taken as an absolute payment of the premiums required for reinstatement. Even if it might be argued that the acceptance of the no-fund check by Stratton was an extension of credit by him for the amount necessary to reinstate the policy, such would have extended only through February 3, 1971.
In 6 Couch on Insurance 2d, § 31:59, p. 69, we find the following:
“An extension of credit is only effective within its terms. That is, to render an extension of credit effective, the premium must be paid in accordance with the terms of the agreement. . . .”
Whatever may have been the agent’s authority to reinstate the policy, reinstatement was not effective until payment of the premiums due for January and February, 1971. The insufficient fund check was not in fact exchanged for cash as had been agreed and the policy was not reinstated.
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Foth, J.:
This is a dispute between the income beneficiary and the remaindermen under an express inter vivos trust over the right to earnings of a holding company owned by the trust. The trial court held, in essence, that the income beneficiary was entitled to all the corporate earnings whether paid out as dividends or not. The remaindermen have appealed from that and certain collateral rulings; the life tenant (represented by her executrix) cross-appeals from the denial of attorney fees.
This case is a sequel to Jennings v. Jennings, 211 Kan. 515, 507 P.2d 241, decided March 3, 1973. There the court found that a 1943 agreement between A. H. Jennings, Jr., his brother Frank H. Jennings, and Frank’s wife Lucile, constitutes an express inter vivos trust. The corpus of the trust consists of all the shares (1000) of the National Investment Company, a family real estate holding company which was formed in 1923, while the father of the two brothers was still alive. A genealogical chart of the Jennings family and the pertinent terms of the agreement are to be found in the Jennings opinion.
The income beneficiaries were the two brothers' while they were alive. Upon their respective deaths each was succeeded as income beneficiary by his widow. Thus when Frank died in 1953, his widow Lucile became entitled to his one-half of the income. Then, in 1969 when A. H. Jennings, Jr., died, his widow Mae became entitled to his one half. (It is with Mae’s right to income that we are here concerned.) When Mae died on March 9, 1975, Lucile became the sole income beneficiary during the balance of her life. When she dies the remainder will pass to the three children of Frank and Lucile, namely, John P. Jennings, Lucile Jennings Gille, and Laura Jennings Houseworth.
During their lifetimes the two brothers were the trustees. Upon Frank’s death, title to his shares devolved upon his children, but under the agreement A. H., Jr., remained in sole control of the family corporation. Upon his death, title to his shares also devolved upon Frank’s children. They thereupon bécame trustees for their mother Lucile and their aunt (by marriage) Mae, as well as remaindermen. It is in their role as trustees that the three children oppose Mae’s claim to income, and they will be referred to as the trustees.
In the first Jennings case it was the trustees who were successful in having the 1943 agreement determined to be a trust, and in establishing their title as trustees to certain shares of the corporation which A. H., Jr., had transferred in his lifetime to his wife Mae, who was the defendant in the action. The trustees were joined in that suit by their mother Lucile, the other life tenant, but she has taken no active part in this proceeding.
After the mandate was filed in that case in 1973, on Mae’s motion the trial court entered an order (1) requiring the trustees to furnish to Mae annual audited reports of the corporation and semiannual custodian reports of the bank holding securities for the trust, and (2) requiring annual payments of income. It concluded its order by saying, “The Court further finds that further interpretation of this trust and the provisions under the same do not fall within the jurisdiction of this Court in this particular case.”
After Mae died her executrix, Virginia Speaker, moved to be substituted for her as defendant in the original action. The trial court concluded that its finding of “no jurisdiction” quoted above was beyond its power, ordered the finding stricken, and ordered that the substitution be made. The executrix then moved for an accounting by the trustees and a judicial determination of the amount due the estate of the deceased life tenant.
The trial court made four substantive rulings in connection with the accounting. First, it held that the corporate nature of the holding company should be disregarded and its net income allocated between life tenant and remaindermen as if the trustees had held the corporate assets directly. In making the allocation the court applied the Uniform Principal and Income Act, K.S.A. 58-901, et seq. Second, it disallowed a number of expense items which were taken against income on the corporation’s books. Third, it limited the accounting to the two-plus years from January 1, 1973, to Mae’s death in March, 1975. The trustees have appealed from those three rulings.
The fourth substantive ruling was to disallow the claim of Mae’s executrix that the trustees be surcharged for her attorney fees. She has cross-appealed from that ruling.
Before taking up the contentions of the parties on those four issues we must first dispose of the trustees’ procedural claim. They contend that the trial court’s 1973 declaration that “further interpretation of this trust” was beyond its jurisdiction was res judicata, precluding any further action in the case. There are several reasons why that position is untenable. First, the declaration was a purely gratuitous obiter dictum. There was no issue of future interpretation before the court at that time, so that an appeal would have been fruitless; even a declaratory judgment action requires an actual controversy. Secondly, the present motion is not really an action for “further interpretation” of the trust, but one to enforce those portions of the order requiring accountings and the periodic payment of income.
Thirdly, and most important, if the statement were to be given the res judicata effect claimed, there would be no forum available to resolve the present dispute. As the trustees concede, only the district court has jurisdiction to monitor their activities as inter vivos trustees; if they were correct in their contention that the “no jurisdiction” declaration is binding, they could do as they please, free from any judicial control. While courts may in certain limited circumstances decline to exercise jurisdiction over a particular case as a matter of judicial discretion, courts may not simply close their doors to litigants who are entitled to a resolution of their claims. An abdication of subject matter jurisdiction is a far different thing from a determination that the court does or does not have jurisdiction over a particular defendant, and for that reason most of the cases cited by the trustees are not in point. Jurisdiction in this case is conferred by our Constitution (Art. 3, § 1 and 6[b]) and. by statute (former K.S.A. 20-301). We fully agree with the trial court that its “no jurisdiction” finding was beyond its power, and conclude that it was properly set aside.
The trustees also seem to argue that the order was not really res judicata but merely terminated action “in this particular case,” so that a new lawsuit should have been initiated. We regard such an argument as at best a technicality. We are admonished by K.S.A. 60-2105 to disregard technical irregularities which do not affect the “substantial rights” of the parties. The only possible right affected by hearing this matter in the original case instead of a new one might be the clerk’s right to receive another docket fee. This is hardly a concern of the litigants.
We turn, then, to the primary issue in this case, which is whether the life tenant was entitled to all the income of the corporation, computed according to the Uniform Principal and Income Act, or whether she was entitled to only so much income as the directors (trustees-remaindermen) might choose to declare as dividends. The trial court resolved the issue in favor of the former alternative, and we concur.
Several factors' lead us to that conclusion. The trustees, of course, have a conflict of interest between their roles as trustees and remaindermen, derived from the structure of the trust instrument. But they are also, at their own election, the directors of the wholly owned holding company, and thus in full control of its dividend policy. Obviously any earnings retained by the company and not paid out as dividends will enrich them personally as remaindermen. This is a conflict created by their own action.
The second major consideration in our thinking is the character of the corporation as a holding company. Its last balance sheet before Mae died (i.e., as of 12-31-74) showed it owning four pieces of rental real estate with a total book value of $48,875, after depreciation reserves of $178,690. (Market value of the real estate is not shown.) In addition it owned securities worth almost $300,000, including a short term treasury bill worth over $120,000. Owning real estate and securities is its only business. It has no employees: its real estate rentals are handled by an independent real estate management firm, and its portfolio is handled by a bank through a custodian account.
The result is that the cases cited by the trustees which involve going businesses are not really in point. Generally speaking, those cases stand for the proposition that a court will not substitute its judgment for that of corporate directors in matters of dividend policies, at least in the absence of fraud or bad faith. That is because its directors are in a far better position than a judge to evaluate such a corporation’s needs and problems concerning cash needs for payroll, inventory, long and short term financing, improvements and expansion, contingencies, and the like. Common business prudence nearly always requires that some portion of current earnings be retained in the coffers of an operating business, rather than be distributed as dividends. Such considerations, applicable to the ordinary mercantile, service or manufacturing corporation, simply are not relevant to a holding company such as we have here. While short term retention may sometimes be justified, in the long run retained earnings can serve no corporate purpose for a holding company except to convert income into capital. Where a trust is involved this necessarily benefits the remaindermen at the expense of the life tenant. No justification was offered for retaining earnings in this corporation beyond the custom of corporations in general, which in the case of a holding company is no justification at all.
More nearly in point than the trustees’ cases are two holding company cases cited by Mae’s executrix, Matter of Adler, 164 Misc. 544, 299 N.Y.S. 542 (1937), and Matter of McLaughlin, 164 Misc. 539, 299 N.Y.S. 559 (1937). In Adler testamentary trustees owned 100 per cent of the stock of a real estate company, and served as its directors. The company used earnings to pay a debt due decedent at the time of his death. The court held that the trustees were accountable as trustees for their conduct as directors; that the payment of the debt was an impermissible conversion of income into principal at the expense of the b re tenant; and that the court’s control over them as trustees permitted it to direct their conduct as directors. (The court there went further, and found that the establishment of depreciation reserves for new elevators and to recapture the cost of buildings and fixtures was also an impermissible diversion. No such claim is made here; the Uniform Principal and Income Act authorizes depreciation reserves and Mae’s executrix makes no objection to the reserves utilized by these trustees.)
McLaughlin went even beyond Adler. That case also found an impermissible conversion of corporate income into principal. But in addition to ignoring the corporate entity for present accounting purposes, the court found that the holding company served no purpose useful to a trust and made allocation between income and principal difficult; therefore it ordered the trustees to dissolve the corporation and take title to its assets directly. (Again, no such drastic relief is sought here, but only that the corporate income be treated as if the trustees owned the corporate assets directly.)
Adler and McLaughlin were both cited approvingly in Matter of Shehan, 285 App. Div. 785, 141 N.Y.S.2d 439 (1955). The court there reaffirmed the principle that trustees who also serve as corporate directors are accountable in the same proceeding for their conduct in both capacities. Whether the corporate entity should be ignored and the corporation considered an adjunct of the estate depends on the circumstances, the court said, but accountability was indisputable. The court reemphasized that in his capacity as director a trustee is bound by the same fiduciary standards that govern his conduct as trustee, including the duty of undivided loyalty to the beneficiary untrammeled by the trustee’s private interests.
The trustees seek to overcome those authorities by citing Matter of Schnur, 39 Misc. 2d 880, 242 N.Y.S.2d 126 (1963), where Surrogate Di Falco distinguished Adler and McLaughlin. The case does little for their position. In Schnur the court noted that continued recognition of the separate entity of an estate-owned corporation was sometimes appropriate to effectuate the testamentary plan and scheme, and found the circumstances there fell into that category. The continuation of depreciation reserves established by the testator was therefore approved. The temporary establishment and investment of other reserves was also approved, but only because of demonstrated business contingencies. The approval of these reserves, however, was expressly predicated on findings that “the record does not show that there has been a permanent transfer from income to capital,” and that “[t]he course of conduct of these trustees gives promise that the income beneficiaries’ rights to accumulated income will be recognized and safeguarded.” (39 Misc. 2d at 885. Emphasis added.) The expectation was that in due course the income beneficiaries would receive all accumulated income; there is no suggestion that such income could be permanently withheld and later paid over to the remaindermen. Here, no specific need for temporarily retaining earnings has been demonstrated, and permanent retention would convert income to principal. With Mae’s death the time to pay over accumulated earnings to the life tenant has arrived.
It is argued that the corporate entity should not be ignored here because of the way the two brothers treated it during their respective lifetimes; never was all the income paid out as dividends while they managed things. We are unimpressed by this argument. During the time the settlors were trustees they were also the income beneficiaries. Their failure to draw all the income available could have been due to many factors — tax considerations, a desire to build an empire, or even a desire to benefit the remaindermen. Whatever the reason, the retention of corporate earnings while they were alive hurt only them, not those having a conflicting interest in the trust. During the time A. H. Jennings, Jr., served as sole trustee, he was authorized by the agreement itself to control the corporation “without interference” from either Lucile or her children, the present trustees. He was, under the trust instrument, accountable only to himself. When the children became trustees, however, they were not protected by the instrument from accountability to the other beneficiaries of the trust, including Mae. Further, with the shift in control to the new generation it became for the first time in the trustees’ self-interest to retain corporate earnings. They could only do so at the expense of one entitled to the trust’s income by the trust instrument and by law.
We therefore hold that, under the circumstances of this case the court had the equitable power to ignore the corporate entity and to require the trustees to account for the corporate earnings as if they had held the corporate assets directly, and did not abuse its discretion in doing so.
The second substantive issue raised by the trustees concerns the adjustments made to the corporate income figures for each of the years 1973,1974, and the partial year 1975. These adjustments were of two types: (1) restoring to income an $8550 item written off in 1973 on account of the decline in value of two investments; and (2) reallocation to the principal account of accounting and legal expenses and a trustee fee which had been allocated to income. (All adjustments made were net of income taxes.)
From what has previously been said it is clear that the first adjustment was proper. Had the securities been sold and the loss actually realized, it would have been a capital loss. In the same year the corporation did realize a capital gain of almost $7500, which was excluded by the trustees in computing the corporation’s “ordinary income.” Applying consistent trust accounting principles to both transactions, both were capital transactions properly allocable to the trust’s principal account. See K.S.A. 58-903.
The expense items were allocated to principal by the court because the trustees failed to meet their burden of proof that they should be allocated to income. The accountant who testified for Mae’s executrix could find no reason in the data available to him for allocating the items to income, so he allocated them to principal. The trustees’ accountant had no present recollection of why they were deducted from income, but was confident they were proper from a corporate accounting standpoint — with the information on hand at the time he deducted them. He went on to say:
“THE WITNESS: But, I have to qualify my reply by saying that, if we had knowledge at that particular point in time, we would have made the allocation. If we did not have that knowledge, the full amount would have been charged here as shown.”
The trial court’s answer to the trustees was:
“4. The plaintiffs-trustees have urged the application of the presumption stated in Henshie v. McPherson & Citizens State Bank, 177 Kan. 458, 473, 280 P.2d 937, that trustees are presumed to have acted in good faith. The Court has given effect to that presumption, but has also applied the burden of proof rules set out in the quotation from Bogert on Trusts and Trustees on the same page of that opinion and in accordance therewith made its Finding of Fact No. 10. . . .”
“10. The accounting trustees failed to prove to the satisfaction of the Court the merit of the claims for credit in the accountings which were objected to by the substituted defendant in the testimony of said defendant’s expert witness.”
The burden of proof rules in Henshie, referred to by the trial court, are as follows:
“The general rule is stated in Bogert on Trusts and Trustees, Vol. 4, Part 2, $ 971, as follows:
“ ‘The burden is on the accounting trustee to prove to the satisfaction of the court the merit of all claims for credit which he makes. If he makes out a prima facie case for credit, an objecting beneficiary will have the burden of introducing evidence and overcoming this case. It will then be a question of fact for the court as to whether the trustee has sustained his claim by the preponderance of the evidence.’
“Trustees are presumed to have acted in good faith. (See Prager v. Hart, 106 Kan. 14, 186 Pac. 1015; also Clark v. Clark, 123 Kan. 646, 256 Pac. 1012, and Elward v. Elward, 117 Kan. 458, 232 Pac. 240.)” (177 Kan. at 473.)
The trial court thus found that the trustees had not met their burden of proof. Our scope of review is limited.
“The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” (Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719, Syl. 5.)
There was little offered by the trustees to justify the allocation of the challenged expenses to income beyond the testimony cited above. We certainly cannot say the trial court arbitrarily disregarded any undisputed evidence, or that its findings were the result of any “extrinsic consideration.” Its findings in this respect therefore cannot be disturbed.
The trustees also complain about the trial court’s limiting the accounting to the period commencing January 1, 1973. By so doing the court excluded from consideration a $50,000 dividend, even though paid in June, 1973, because it was paid from corporate surplus accumulated prior to December 31, 1972. (An additional $7,000 paid in 1973 from 1973 earnings was considered.) We think the point is well taken.
The essence of the Supreme Court’s decision in the first Jennings case was that title to all corporate stock vested in the present trustees on the death of A- H. Jennings, Jr., in 1969, and that Mae Jennings became an income beneficiary of the trust at that time. The theory of her executrix in this proceeding, adopted by the trial court and now approved by this court, was that Mae as life tenant was entitled to one-half the net earnings of the corporation computed as if the trustees owned the corporate assets directly. Hence, in order to determine how much Mae was underpaid during her lifetime it is necessary to ascertain one-half the corporate income during the entire period Mae was entitled to receive it, and deduct all amounts actually paid to her during that same period.
It is agreed that the $50,000 dividend was paid out of pre-1973 earnings. However, it is also apparent that by the end of 1973 distributions for the period of Mae’s entitlement did not equal corporate income for that period, after the 1973 adjustments made by the trial court and approved above. It is necessary to recompute the balance due Mae as of January 1,1974, and this court has done so from the uncontroverted evidence presented for the years prior to 1973, and giving effect to the trial court’s 1973 adjustments:
Mae was entitled to one-half of that amount, or $2,328.60. Employing the trial court’s formula, of which no complaint is made, she was also entitled to 6% simple interest from January 1, 1974, to October 29, 1976, or $395.03. Our recomputation does not affect the trial court’s figures for 1974 ($6,117.00 plus $670.69 interest), and the partial year of 1975 ($3,215.50 plus $316.62 interest), and they are approved.
Finally, we reach the claim on cross-appeal that the trustees should pay the attorney fees incurred by Mae’s executrix in this proceeding, either by way of surcharge or as exemplary damages.
On this record we cannot agree. Surcharge in the ordinary sense is not appropriate unless there has been loss to the trust estate; See Jennings v. Murdock, 220 Kan. 182, 553 P.2d 846, Syl. 14. No loss is claimed here. Assuming exemplary damages would be allowable upon a finding of bad faith, we are faced with the trial court’s finding:
“The Court, having heard the arguments of counsel and being duly advised in the premises, states that he did not find that the plaintiffs-trustees acted in good faith, but found that their actions were not an intentional, willful, purposeful act to withhold monies from defendant, Mae N. Jennings, for the benefit of the plaintiffs-trustees, and on that basis the Court had denied the substituted defendant’s application for exemplary damages and attorneys’ fees.”
The clear import of this finding is that neither side carried the day on the good faith-bad faith issue. As in our previous discussion of the disallowance of credits, we are once again unable to say that the uncontroverted evidence compelled any particular finding. See Highland Lumber Co., Inc. v. Knudson, supra.
On the appeal the principal amount of the judgment is modified to $13,043.44, and as so modified is affirmed. On the cross-appeal the judgment is affirmed. | [
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Abbott, J.:
The director of taxation appeals to this court from a judgment of the district court holding a nonresident decedent’s interest in a contract for the sale of Kansas real estate entered into by the decedent prior to her death to be personal property and therefore not subject to Kansas inheritance tax.
During her lifetime, the decedent, Goldie I. Hastings, and Ray E. Frisbie (also the appellee herein as executor of Goldie I. Hastings’ estate) entered into a real estate sales contract whereby the decedent agreed to sell and Frisbie agreed to purchase 1,120 acres of land situated in Rawlins County, Kansas. The real estate contract was dated May 28, 1965. The contract and a deed to Frisbie’s family corporation were placed in escrow. Possession was given to Frisbie, who paid the real estate taxes on the property and who paid principal and interest on the contract as they became due.
On August 27, 1972, Goldie I. Hastings died a resident of Laramie County, Colorado. An estate was opened in Laramie County, Colorado, and, through her estate in Colorado, a federal estate tax return and a Colorado inheritance tax return were filed. On the date of Goldie I. Hastings’ death, $75,400 remained due and owing on the contract principal. Goldie I. Hastings’ interest in the contract to sell real estate was listed as personal property on both the federal and Colorado state returns.
A nonresident inheritance tax form 12-T was timely filed in the state of Kansas. The form 12-T did not include decedent’s contractual interest in the property. The contractual interest was reflected on the federal estate tax return, form 706, accompanying the form 12-T, and the Kansas Department of Revenue requested a copy of the real estate contract to determine the interest held by Goldie I. Hastings at the time of her death.
The Kansas Department of Revenue issued an order on August 30, 1973, determining that the interest of the decedent in the contract should be taxed as real estate at the value of $75,759.60. The inheritance tax determined to be due in Kansas was paid. A petition for abatement was filed with the director of taxation. The petition for abatement was subsequently denied.
A notice of appeal was then filed with the Board of Tax Appeals and a hearing was held. On December 20, 1974, the Board of Tax Appeals entered its order upholding the director’s right to tax the decedent’s interest in the contract as real estate but reversing the director as to the method of valuation of the decedent’s interest in the contract.
Appellee timely filed his notice of appeal in the district court of Rawlins County, Kansas, and the case was set and argued. The district court found the decedent’s interest in the contract to be personal property and therefore not subject to inheritance tax in Kansas. This appeal followed.
K.S.A. 79-1501e provides in pertinent part that the inheritance tax imposed on personal property of nonresidents shall not be payable if the laws of the state of residence of the decedent at the time of death contain a reciprocal provision providing that nonresidents of that state were also exempt from payment of inheritance tax on personal property situated outside the state of the decedent’s residence. K.S.A. 79-1501e further provides that this exemption shall apply only if such property has been submitted for taxation in the state of the decedent’s residence. The decedent’s interest in the contract in question was submitted for taxation to the Colorado taxing authorities. Colorado has a reciprocal statute (Colo. Rev. Stat. 1963, 138-3-6; now Colo. Rev. Stat. 1976 Supp. 39-23-104).
Whether the interest in the contract is subject to Kansas inheritance tax then depends upon the interest held by Goldie I. Hastings on the date of her death. If Goldie I. Hastings, as a nonresident decedent, held an interest in Kansas real property which passed by her death, the interest is subject to Kansas inheritance tax. Conversely, if the nonresident decedent retained a mere contract right to the purchase money, it is personal property and is subject to inheritance tax in the domiciliary state and is excluded from taxation in the state of Kansas by the provisions of K.S.A. 79-1501e.
No factual dispute exists. The case was submitted to the trial court on an agreed statement of facts. The director of taxation contends that the interest is a real property interest. The director readily concedes that by necessity he must rely on two premises to prevent the doctrine of equitable conversion from applying and converting the interest to personal property, to wit: (1) Because the real estate contract provides in part “that time shall be of the essence,” and this provision precludes applying the doctrine of equitable conversion, and (2) because the doctrine of equitable conversion is equitable in nature it cannot be applied to matters of taxation which are purely statutory.
The real estate contract provided:
“It is agreed that time shall be the essence of this agreement and in event that second party, his heirs or assigns should fail to make the payments or to keep and perform any of the provisions of this agreement, then and in that event first party at her option may terminate this agreement by giving second party, his heirs or assigns sixty (60) days notice in writing of her intention so to terminate this agreement and if the defaults stated in the notice be not removed within the time given in the notice then first party may terminate this agreement and retain the payments made as liquidated damages.”
The contract was current at the time of Goldie I. Hastings’ death. The deed had been placed in escrow, all payments required by the contract, including the real estate taxes, had been made by the purchaser, and some thirty-six percent of the purchase price had been paid.
Our Supreme Court filed its opinion captioned In re Estate of Hills, 222 Kan. 231, 564 P.2d 462. The ultimate question in the Hills case is identical to the question in this case. In Hills, Mr. Hills made a will, to which Mrs. Hills consented, leaving all of his personal property to Mrs. Hills and his real estate to Mrs. Hills for life with the remainder to a nephew. The Hills later entered into a contract to sell the real estate to a third party. As in this case, a deed was placed in escrow, possession was given to the purchaser, real estate taxes and all other payments called for by the agreement were made. Neither the contract nor deed was recorded, and all terms of the contract had been complied with as of the date of Mr. Hills’ death. Over one-fourth of the purchase price had been paid prior to Hills’ death. The executor classified the decedent’s interest in the contract as personal property in the decedent’s estate.
The district court found the provisions in the Hills contract, (1) that “time is of the essence of this agreement,” and (2) that the buyers shall be considered as tenants in possession under a contract of purchase until such time as they have fully paid the consideration, as controlling in finding the interest should be “designated as real property . . .” The Supreme Court reversed the trial court, holding the interest in the contract to be personal property.
The “time is of the essence” provision in Hills, supra, is nearly identical to the one in this case. The contract in the case at hand does not specifically provide that the purchaser be considered a tenant or that the seller intended to retain legal title as does the Hills contract. The only distinction that can be made between this case and Hills, supra, is in the amount, or percentage, of the original down payment. In Hills, a twenty-five percent down payment was made on the contract. In this case, less than one percent was paid initially. However, thirty-six percent of the purchase price, had been paid prior to the death of Goldie I. Hastings. When a small down payment is made on a contract for the purchase of real estate, as opposed to a substantial down payment, and when the payments called for in the contract have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial down payment on the purchase price, equitable principles will be applied and the payments will be construed to meet the requirements of a “substantial down payment” as construed in Hills, supra, and In re Estate of Snyder, 199 Kan. 487, 430 P.2d 212. (Stevens v. McDowell, 151 Kan. 316, 98 P.2d 410; and DeGood v. Gettle, 119 Kan. 534, 240 Pac. 960.)
We find the facts in this case to be controlled by the Hills, supra, decision. For the reasons set forth in Hills, the contract for the sale of real estate worked an equitable conversion of the land into personalty prior to the death of the nonresident vendor. The interest of the nonresident decedent in the contract of sale is exempt as personalty from taxation in the state of Kansas by the provisions of K.S.A. 79-1501e when the conditions imposed by that statute are otherwise present.
Appellant argues that equitable conversion should not be applied to tax matters. Our legislature granted an exemption for personal property of a nonresident decedent when the domiciliary state has a reciprocal provision in its law and when the personal property is subjected or submitted for purposes of taxation in the state of the decedent’s residence (K.S.A. 79-1501e). The statute does not define what constitutes personal property and certainly contains no language that would in any manner indicate the legislature intended to tax any interest inconsistent with the doctrine of equitable conversion.
It is of interest to note that M. C. Lempenau, who for many years was chief of the Inheritance. Tax Division, Kansas Department of Revenue, in her book, “Kansas Legacies & Successions Tax Review,” p. 44, stated:
“Land sold under contract and oil and gas leases or royalties are classified legally as personal property, but should be described in inheritance tax findings to prevent raising of the question of inheritance tax lien, because orders issued by the Director report personal assets in a lump amount. For this reason it is recommended that these assets be fully described and valued under the real estate heading, to avoid future questioning of title by land purchasers or oil companies.” (Emphasis supplied.)
The doctrine of equitable conversion is applicable to K.S.A. 79-1501e, and the interest of the nonresident decedent in the contract of sale is not subject to Kansas inheritance tax under the facts of this case.
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Parks, J.:
This appeal is presented to this court on an agreed statement pursuant to Supreme Court Rule No. 3.05.
On March 26, 1974, the defendant Williams purchased a 1974 Chevrolet pickup truck from the Dennis Chevrolet Co., Inc., which subsequently sold the note and security agreement to the Jackson County State Bank. The truck was a “lemon,” requiring multiple repairs during the first month of ownership. Consequently, Mr. Williams withheld payment on the note, but failed to notify the bank of his problems with the truck. The defendant was served a “right to cure” notice by the bank. The bank then peaceably repossessed the truck in June, 1974, and after giving notice to Williams, sold the truck the week of July 5, 1974, for approximately $400 over the black book listing. The plaintiff bank filed an action to recover a deficiency of $938.94 on September 20,1976. The trial court entered judgment for the plaintiff bank on February 14, 1977. Williams appeals.
The first issue presented is whether the one-year statute of limitations found in K.S.A. 1976 Supp. 16a-3-404(4) applies to this case and bars recovery by the bank.
K.S.A. 1976 Supp. 16a-3-404(4) reads:
“(4) Any action by an assignee or the original seller or lessor who has repurchased an obligation under subsection (5) to enforce an obligation, or any action by a buyer or lessee to rescind, or any request to repurchase the obligation, shall be brought within one year from the date of receipt of the notice of the claim or defense, or default in payment, whichever is later.”
A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose the court should follow the intent as expressed by the words used. (State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020; Underwood v. Allmon, 215 Kan. 201, 204, 523 P.2d 384; and City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56.)
Both parties agree that no notice of claim or defense was given to the bank. Had this been the case, the bank could have required Dennis Chevrolet to repurchase the obligation pursuant to K.S.A. 1976 Supp. 16a-3-404(5), thus eliminating the bank as a party in interest.
A careful reading of this statute discloses that the one-year statute of limitations begins to run after receipt of the notice of the claim or defense, or default in payment, whichever is later. One of the purposes of section 16a-3-404(4) is to set forth a one-year statute of limitations. It is apparent that this statute applies to an assignee as well as the original seller who has repurchased an obligation under subsection (5). It is also the clear design of the phrase “whichever is later” to require the occurrence of both the notice of the claim or defense and of the default before the statute of limitations begins to run.
Here, the only event that has occurred is the default. By the plain meaning of the phrase “whichever is later,” the pending event of a written notice of a defense would be the later event. Thus, it is clear that the one-year statute of limitations has not been brought into play.
Under the facts and circumstances of this case, we must conclude that both conditions of section 16a-3-404(4) have not been met. Accordingly, the provisions of K.S.A. 60-511(1) which au thorize an action upon any agreement, contract or promise in writing to be brought within five (5) years are controlling.
The second issue raised by the agreed statement is whether the bank has met its burden of proving the sale was commercially reasonable. The agreed statement contains the following recitation:
“Although the defendant agreed that the bank had got a fair price for the vehicle on its sale after repossession, the defendant contends that because the plaintiff did not offer evidence as to where the sale took place and to whom the sale was made, the plaintiff has not met its burden of proving that the sale was commercially reasonable pursuant to K.S.A. 1976 Supp. 84-9-504(3). . . .” (Emphasis supplied.)
In essence the parties have stipulated that the resale price was fair and reasonable. Thus, the burden of proving commercial reasonableness has been met by the secured party. [Conti Causeway Ford v. Jarossy, 114 N.J. Super. 382, 384, 276 A.2d 402 (1971), aff'd 118 N.J. Super. 521, 288 A.2d 872 (1972).]
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Spencer, J.:
This case involves the liability of a landlord for personal injuries suffered by a social guest of his tenants as a result of a fall on defective steps attached to the front porch of leased premises. Trial to the court on the issue of liability only resulted in judgment for the defendant. Plaintiff has appealed.
The facts as determined by the trial court are in substance that on August 1, 1971, the defendant became the owner of premises at 1312 Kentucky Street, Lawrence, Kansas, on which there was a two-story dwelling formerly used as a single-family residence. The first floor consisted of an entry hall, a stairway to the second floor, a living room, dining room, kitchen and pantry. There were four bedrooms and a bath on the second floor. Access to the house was by way of steps to a front porch off of which was the door to the entry hall. The property was acquired as a rental and was not altered in any way.
Prior to August 15, 1971, defendant entered into an oral agreement to rent the premises on a month-to-month basis to five university students, he to supply the house with a stove and refrigerator and the students to pay rent and utilities. The de fendant reserved no control over any part of the premises and although he intended to take care of major repairs, there was no specific agreement in this regard.
At the time of purchase, the defendant also owned property at 1310 Kentucky Street which was rented to students, one of whom when he saw the defendant delivering the stove and refrigerator to 1312 Kentucky, tried to get the defendant to install a better refrigerator at 1310 Kentucky. In the course of conversation, this student suggested that the defendant should fix the porch at 1310 Kentucky and also the steps at 1312 Kentucky. The trial court specifically found that the defendant never observed or knew that the steps at 1312 Kentucky were a problem nor did any of his tenants at that address complain about the steps prior to the accident.
Although five students had initially planned to reside at 1312 Kentucky, it developed that only four of them moved in on August 15, 1971. They used the front porch steps frequently and no one had trouble with them at any time prior to the accident.
On August 20, 1971, the plaintiff went to visit friends who lived in houses on either side of 1312 Kentucky. Finding no one home at either location, he decided to sit in his car in front of 1312 Kentucky to listen to music coming from the house. Shortly thereafter, someone at that address invited plaintiff to come in and listen, and while sitting on the porch, three of plaintiff’s friends joined him. Neither the plaintiff nor any of his friends had trouble in walking up the steps to the porch and when they decided to leave, one of the friends preceded the plaintiff and negotiated the steps without difficulty. As plaintiff started down the steps, he slipped and fell into the yard where he stayed briefly until assisted next door by his friends. After he felt able, plaintiff returned to 1312 Kentucky where he observed that the top step to the porch had turned over. When the tenants at 1312 Kentucky reported the problem with the steps, the defendant caused them to be repaired.
From these facts, the court concluded:
“1. While on the premises at 1312 Kentucky, plaintiff was a mere licensee and has no claim against defendant for any injury plaintiff may have sustained when he slipped and fell on the porch steps because there is no evidence of wanton conduct on the part of defendant. [Borders v. Roseberry, 216 Kan. 486, 532 P. 2d 1366 (1975).]
“2. Plaintiff’s contention that 1312 Kentucky was being operated as a multi family home because it was occupied by more than four persons is not supported by the evidence. Beyond this it is doubted that the classification of such properties as multi-family by city ordinance would result in bringing the same within one of the exceptions in Borders, supra.
“3. There is no evidence that defendant contracted to repair the steps in question or that being aware that the steps needed repairs, defendant failed to repair the same.”
Plaintiff complains that the trial court erred in its conclusion that the plaintiff was a mere licensee and thus had no claim against defendant for his injuries because there was no evidence of wanton conduct on the part of the defendant. He argues that as a social guest he stood in the shoes of the tenants and therefore was an invitee, and if defendant would have been liable to any of his tenants, the defendant is liable to him.
It is admitted and the trial court determined that the plaintiff entered onto the premises at 1312 Kentucky at the invitation of “someone” at that address and remained on the porch for a short time to await his friends and to listen to music emanating from the inside, and for no other purpose. Clearly, he was a social guest on the premises, and in a legal sense, a mere licensee. [Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862 (1967), Weil v. Smith, 205 Kan. 339, 469 P. 2d 428 (1970).]
The defendant acquired the premises on August 1, 1971, and his tenants moved in on August 15, 1971. The trial court found as fact that the defendant had not altered the structure in any way. Obviously, whatever defect existed on the date of the accident was in existence at the time the tenants took possession. It must be emphasized that here we are dealing with a claim against a landlord, a non-occupying defendant, by a guest of his tenants. In this situation, the status of the plaintiff as a “social guest or licensee” or “invitee” fades in significance. In the case of Borders v. Roseberry, supra, which was an action by a social guest of a tenant of a single-family dwelling for injuries caused by a fall on ice formed on the steps to the house, the supreme court reaffirmed the traditional rule that there is no liability on the part of the landlord for defective conditions existing at the time of the lease, either to the tenant or to others entering upon the premises, but then observed that the general rule of non-liability has been modified by a number of exceptions which have been created as a matter of social policy (p. 488). The court noted six exceptions and used the language of Restatement (Second), Torts, to set them out. The language of the relevant exceptions provides that if a particular situation exists, the landlord is subject to liability to the lessee and others upon the land with the consent of the lessee or his sub-lessee for physical harm caused by that condition after the lessee has taken possession. (See exceptions 1,4,5 and 6 as set forth in Borders v. Roseberry, supra, pp. 488-493.)
It becomes apparent therefore that if the defendant as landlord or lessor was liable to his tenants for the injury sustained by the plaintiff, he would also be liable to the plaintiff as a social guest of his tenants for injuries sustained under the same conditions. However, whether tenant or social guest, the circumstances must be such as to bring the case within one or more of the exceptions noted in Borders v. Roseberry, supra. We do not deem it important here to determine whether there was wanton conduct on the part of the defendant as did the trial court, but rather whether one of the exceptions noted in the Borders case applies. If not, there is no liability.
The plaintiff argues that the trial court erred in finding no evidence that defendant contracted to repair the steps in question, or being aware that the steps needed repair, failed to repair them, and refers to exception 5 (where lessor contracts to repair) as set forth in Borders v. Roseberry, supra. He argues that the evidence established an oral contract to repair to be in existence at the time of plaintiff’s injury. He points to defendant’s testimony .that it would be his responsibility to repair the stairs and if major problems arose, he would expect to take care of them. A tenant testified that under the oral lease with defendant, it was expected that defendant would make major repairs, including the steps. Defendant counters that under Borders, a specific contract to repair, supported by consideration, is required to hold a landlord liable, and that the general obligation of the defendant to take care of major repairs, including repair to the steps, is not such a contract, at least until the defendant is made aware of the need for repair.
Restatement (Second), Torts § 357, comment b.l at 241-242 (1965), sheds some light on the meaning of Borders exception 5. It is there stated that reasons for the exception include:
“The lessor’s contractual undertaking, for consideration, to repair the premises or to keep them in repair. The rule stated in this Section therefore has no application where the lessor does not contract to repair, but merely reserves the privilege to enter and make repairs if he sees fit to do so. Likewise the rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession. The contract need not, however, be a covenant or other term of the lease, and it is sufficient if it is made by the lessor, as such, after possession is transferred.”
None of the Kansas cases cited in Borders as having followed this exception involved a situation where the contract to repair was claimed to arise simply from the landlord’s general obligation to make repairs. Three of the cases involved specific agreements by the landlord to repair after being notified by a tenant of the need. A fourth, Transport Insurance Co. v. Huston, 207 Kan. 759, 486 P. 2d 1344 (1971), construed a term in the lease absolving the lessor to repair the item in question. Vieyra v. Engineering Investment Co., Inc., 205 Kan. 775, 473 P. 2d 44 (1970), held that if the lease does not require the lessor to inspect the premises, the lessor is not liable until the lessee gives notice of the need to repair. Also mentioned is Steele v. Latimer, 214 Kan. 329, 521 P. 2d 304 (1974), which incorporated as a matter of law a city’s minimum housing standards into a lease of urban residential property. Thus, a contract arises under which a landlord must keep the premises in compliance with the standards. Plaintiff here raises no issue as to the housing standards in Lawrence or as to whether the state of repair of the steps in question would have been in compliance with those standards.
We conclude from all of the foregoing that no “contract to repair” within the meaning of Borders exception 5 existed.
We take note at this point of exception 1 (undisclosed dangerous conditions known to lessor) as set forth in the Borders case and the fact that one of the tenants at 1310 Kentucky suggested that the defendant should fix the steps at 1312 Kentucky. This court must also take note of the fact found by the trial court that the defendant never observed or knew that the steps in question were a problem nor did anyone at 1312 Kentucky complain about them prior to the accident. This specific finding of the trial court is supported by the testimony of the defendant and one of his tenants, as well as evidence of the physical act of use made of the steps by the tenants in entering and leaving the premises without noticing any defect, and the use made by the defendant while installing the stove and refrigerator in the house. This finding of the trial court, supported by competent evidence, will not be disturbed on appeal. [Fox v. Wilson, 211 Kan. 563, 507 P. 2d 252 (1973).]
Plaintiff argues that the trial court erred in its finding that the property was not a multi-family residence with common passages reserved to the defendant’s control and states that he is entitled to damages under Borders exception 4 (parts of land retained in lessor’s control which lessee is entitled to use). He cites the case of Trimble v. Spears, 182 Kan. 406, 320 P. 2d 1029 (1958), in support of his position. The Trimble case involved an action for damages against the owner of a business building, a portion of which was rented to a co-defendant occupying a portion of the building as a dry cleaning establishment, and another portion of which was occupied by a barber shop. It was admitted that certain public portions of the building other than the rented rooms were reserved by and under control of the landlord. We find no similarity with the case at bar where one of the tenants occupying the premises at the time of the accident testified that no part of the house or any outlying part thereof had been reserved to the defendant, and defendant had no responsibility for day-to-day maintenance of the house or yard. He also testified that they just rented the house “lock, stock and barrel.” We take note of the floor plan of the dwelling and that, although each tenant had his own bedroom, all of the occupants shared the kitchen and the bathroom. It is also noted that the rental arrangements were for a sum to be paid by the occupants collectively and not for an amount to be paid by each of them. The trial court found the dwelling had been a single-family residence and was rented without alteration. There is no evidence that defendant retained control of any portion of the premises as contemplated by Borders exception 4.
Finally, the plaintiff urges upon this court his contention of error in that the trial court refused to require answers to certain interrogatories propounded by the plaintiff. By this means the plaintiff attempted to discover whether the defendant had ever been sued over a similar incident or any incident arising out of any property owned by the defendant; whether the defendant had ever been informed or notified by any city official that any of his properties did not comply with the housing code; and as to what system, if any, was used by the defendant to inspect his properties and to keep them in proper repair. It is difficult to perceive how these interrogatories may have been relevant to the subject matter of this cause or how answers most favorable to the plaintiff might have been used to assist in trial preparation. It is also difficult to understand why plaintiff did not pursue that line of questioning at the trial if he truly believed that relevant and material information might have been forthcoming. K.S.A. 60-226 (b) is patterned after Rule 26, Federal Rules of Civil Procedure. In relation to that rule, it has been said that “relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms.” (8 Wright & Miller, Federal Practice and Procedure, Civil § 2008, p. 45.) Balanced against this liberal standard must be the broad discretion vested in the trial court as to the direction and use of discovery. We find no abuse of that discretion in this case. [See Tilley v. International Harvester Co., 208 Kan. 75, 490 P. 2d 392, syl. 2 and 3 (1971); Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 536 P. 2d 54, syl. 8 (1975).]
Judgment affirmed. | [
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Harman, C.J.:
This is an action by a subsequent lessee against a prior lessee of the north eighty acres of a 160 acre oil and gas lease. The plaintiff sought cancellation of the defendant’s lease and quieting of the leasehold interest in himself. The case was submitted to the trial court upon an agreed statement of facts. The whole concern is the effect of unitization of the south eighty acres of defendant’s leasehold acreage and production elsewhere within the unit. The trial court granted the requested relief and defendant has appealed.
The lease interest at issue here is the west half of the northeast quarter of section sixteen, township one, range eighteen, in Phillips county, Kansas.
On November 26, 1949, the mineral owners of the west half of the east half of section sixteen executed an oil and gas lease covering that land for ten years and so long thereafter as oil or gas was produced from the land by the lessee. The lease contained no entirety or unitization clause. By assignments L. B. Stableford, now deceased, became the owner of that lease on March 28, 1951. The action is now defended by his trustee, Harris Trust and Savings Bank. A producing well on the south half of the tract was developed in 1951. This was the only producing well on the 160 acre tract and it was plugged December 9, 1970. There have been no further operations on the land.
Meanwhile, on August 1, 1959, the mineral owners and the leasehold owners unitized twenty-five different tracts in the Huffstutter Field into one production unit. The south half of the land covered by the 1949 lease was included in the unit. The north half was not. By 1970 all the mineral owners under the 1949 lease had ratified the unitization agreement. After the December 9,1970, plugging of the well on the south eighty acres in the 1949 lease, the mineral owners continued to receive royalties from the unit notwithstanding the fact there was no production on their land. Production within the unit has been continuous.
On or about May 20, 1974,the mineral owners executed new leases on the west half of the northeast quarter to D. L. Somers, who thereafter instituted this suit. Most of the leases provided that they were to be null and void if the lands were in fact covered by a prior lease. Somers knew of the 1949 leases and the invalidity clauses were inserted in his leases for the protection of the mineral owners. The mineral owners at no time have made demand for further development under the original lease or for its release. Thus this contest is one to determine which lease is valid and which lessee may go ahead with development of the north eighty acres, each party being desirous of doing so. Plaintiff’s theory has been and is that for want of production defendant’s lease had terminated under the terms of the habendum clause.
In its order granting cancellation of defendant’s lease the trial court announced the following as conclusions of law upon which it relied:
“1. It is noted the unit agreement provided that the unit area could be enlarged by the operator’s committee to include tract or tracts in addition to those shown in Exhibit A and described in Exhibit B provided that all of the working interest owners and royalty owners of such additional tract or tracts entered into this agreement. The Court concludes this to be an additional reason for finding that the West half Northeast Quarter of Section 16-1-18 was in fact severed from the unit agreement.
“2. The Court further finds the duty to drill an offset well or wells is not prolonged or extended as to an area that is purported to be covered by a unitization agreement, but yet does not derive any. distribution of oil whatever from the unitized area.
“3. When the production ceased on the W/2 E/2 of 16-1-18, then the lease dated November 26, 1949, recorded in Book 123, pages 345-7, expired in accordance with its terms insofar as said lease covered the W/2 NE/4 of 16-1-18, Phillips County, Kansas, and should be canceled of record by the Court.”
We should first examine the unitization agreement. Its preamble recites the decline of natural pressure in the Lansing-Kansas City formation under the tracts and the more efficient use of secondary recovery methods if the tracts were operated as a unit. Attached to the agreement are two exhibits: Exhibit A, being a map outlining both the unit area and the participating area, and exhibit B, being a list of the descriptions of participating tracts, their owners and the percentage of tract participation in the unit production.
Article I, the definition provision of the agreement, states:
“(a) ‘Unit Area’ shall be those formations underlying each of 25 tracts described in Exhibit ‘B’ and outlined in red on the plat marked Exhibit ‘A’, attached hereto. . . .
“(h) ‘Tract’ is a parcel of land within the unit area set apart for the purpose of assigning to it a tract factor.”
Article II, the unitization provision, states:
“2. The rights of the several working interest owners to search for and produce unitized substances from each tract of land in the unit area and the rights of the several royalty owners in and to the tracts comprising the unit area are hereby unitized and pooled into one unit, all to the same extent as if the unit area had been included in a single lease by all the royalty owners, as lessors, in favor of all the working interest owners, as lessees, subject to all the terms and conditions of this agreement.
“3. The production of unitized substances from the unit area through any well or wells shall be considered for all purposes as production of oil and gas from the land covered and affected by each oil and gas lease affecting any of the land within the unit area and production from any part of said unit area shall perpetuate all oil and gas leases whether or not the lands covered by any particular such oil and gas lease are productive or non-productive. No person executing or ratifying this agreement shall have any right either in law or equity to cancel any oil and gas lease covering any part of the land contained in the unit area. Each of said leases shall remain in full force and effect for all purposes so long as unitized substances are produced from any well producing from the unit area.”
Article III, paragraph 9, provides that the unit area may be enlarged by the operators’ committee to include tracts other than those described in exhibit B and shown in exhibit A, provided that all of the working interest owners and the royalty owners of such additional tracts agree, the participating percentage of all to be adjusted accordingly.
Article VI, paragraph 18, provides:
“The unit area shall be developed and operated as a unit without reference to separate ownership of the tracts or interests therein within the unit area. Working interest owners shall have no obligation to offset any well or wells drilled on any of the tracts within the unit area nor to set separate tanks or measure separately the production from the respective tanks.”
The problem appears to be this: A leases 160 acres to B. Later the parties place eighty acres of the leased land into a unit. A producing well is brought in within the unit but not on A’s included acres. Does such production extend the lease beyond its primary term as to A’s eighty acres not within the unit?
We have no Kansas authority squarely in point. The majority rule elsewhere is that where a portion of an oil and gas lease is committed to a unit, production anywhere in the unit extends the term of the entire lease (2 Summers, Oil and Gas, Sec. 302.1, pp. 293-294; Rebman, “Continuation of the Oil and Gas Lease on Outside Acreage by Production Within the Unit”, 35 Tex. L. Rev. 833 [1957]). The rule is based on conservation and public policy. Its rationale starts with the proposition that an oil and gas reservoir does not abide by man-made boundaries (K.S.A. 55-1302 defines a “pool” as “. . . an underground accumulation of oil and gas in a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent. . . .”); because of the nature of the oil and gas pool and because of the growing need for conservation drilling units were established; the units were tracts of sufficient size and shape that one well properly located could sufficiently drain the oil and gas therefrom; unitization makes possible the exploitation which would be possible if the land or subsurface rights were in single ownership; reservoir energy and contents and physical equipment are not wasted; since unit operations provide an efficient and less expensive method of oil and gas recovery allowing lease termination as to outside acreage would discourage operators from unitizing appropriate acreage (1 Myers, The Law of Pooling and Unitization, 2d ed., Sec. 3.02, p. 73; Merrill, “Unitization Problems: The Position of the Lessor”, 1 Okla. L. Rev. 119 [1948]).
Cases espousing the majority rule include Scott v. Pure Oil Co., 194 F.2d 393 (5 CA, Tex.); Buchanan v. Sinclair Oil & Gas Company, 218 F.2d 436 (5 CA, Tex.); Gray v. Cameron, 218 Ark. 142, 234 S.W.2d 769; Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10; LeBlanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855; Godfrey v. McArthur, 186 Okla. 144, 96 P.2d 322; Kunc v. Harper-Turner Oil Company, 297 P.2d 371 (Okla. 1956); Trawick v. Castleberry, 275 P.2d 292 (Okla. 1953); Whitaker v. Texaco, Inc., 283 F.2d 169 (10 CA, Okla.); and Clovis v. Pacific Corp., 140 Colo. 552, 345 P.2d 729. The only case to the contrary appears to be Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 447, in which the court declared that to hold otherwise would apply conservation laws in violation of the constitutional guaranty that no person shall be deprived of his property without due process of law.
Although he acknowledges that it is not a “cow” case, plaintiff says certain principles announced in Smith v. Home Royalty Association, Inc., 209 Kan. 609, 498 P.2d 98, are applicable here. In Smith the principal holding was summarized as follows:
“Where owner conveys a mineral interest which was to remain in force twenty-one years and as long thereafter as minerals are produced, and subsequently, successive owner and grantee of mineral interest separately execute lease permitting unitization, gas produced from other land in the unitized area does not fulfill the requirement in the deed that minerals be produced from said lands.” (Syl. 1.)
The court was persuaded to this conclusion by its prior rulings in Dewell v. Federal Land Bank, 191 Kan. 258, 380 P.2d 379, and Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938. In each of these cases the issue involved ownership of reserved mineral interests which after primary terms were dependent upon continued production from the land. In Dewell the court simply held:
“A reservation in a warranty deed, excepting and reserving an undivided one-half interest in minerals for a term of twenty years and so long thereafter as oil and gas or other minerals are produced therefrom or the premises are being developed or operated, creates a base or determinable fee in the minerals, and the reservation is not extended beyond the primary term by the lessee’s payment of shut-in royalty.” (Syl.)
However, Dewell does state that which appears to be the rationale for Smith:
■ . . [T]he conveyance or reservation of minerals in place by deed for a primary term and so long thereafter as oil or gas is produced or the premises are being developed creates a base or determinable fee. [p. 260.]
“The owner of a defeasance mineral interest cannot change the conditions by which the interest is to continue beyond the primary term, by any provision in an oil and gas lease to which the landowner is not a party.” (p. 263.)
In Stratmann the court pointed up the fact it was dealing with a mineral interest, a present ownership in real property, rather than “royalty interest”, which is personal property when there is production. This appears to be of importance for present purposes only in connection with the ruling in Smith, in which the court emphasized it was dealing with a rule of real property established in Kansas which requires that extensions of a term be limited by the language of the original instrument and nothing else.
The heart of the unitization agreement here is paragraph 3 of Article II. It is in very broad terms: “The production of unitized substances from the unit area through any well or wells shall be considered for all purposes as production of oil and gas from the land covered and affected by each oil and gas lease affecting any of the land within the unit area and production from any part of said unit area shall perpetuate all oil and gas leases whether or not the lands covered by any particular such oil and gas lease are productive or non-productive.” Production within the unit is to be considered for all purposes as production from the land covered and affectedby the lease. Additionally plaintiff’s grantors were parties to the unitization agreement. This seems to take the case out of the ambit of the holding in Smith.
The majority rule already mentioned seems reasonable and just under the circumstances and one which should be adopted particularly where, as here, all affected parties have agreed to the unitization. The lease proviso for enlargement of the unit in event of agreement by all parties, including the lessors, is not inconsistent with its application. Plaintiff argues it would be inequitable to permit defendant to hold its lease on the north eighty after having done nothing on it for such a long period of time. It must be borne in mind this is not a suit by the lessors for violation of implied covenants in the lease where a multitude of factors may be involved. It is well established that the lessee’s obligation of reasonable development and protection against drainage remains as to the outside acreage. These implied covenants continue to exist for the lessor’s protection as to lease acreage outside the unit (See Rebman, supra, pp. 838-840, and 1 Myers, supra, Sec. 14.02 [7], pp. 496-498). In Clovis v. Pacific Corp., supra, the court said this on the subject:
“Plaintiffs contend that by the adoption of this rule defendants can from now on retain the non-unitized lands doing nothing with them in the future to plaintiffs’ detriment. This of course is not so. The rationale of the majority rule is recognition by the courts that the implied covenants for reasonable development and protec tion against drainage apply to leased lands outside of pooled units such as those held by defendants. These covenants are deemed by the courts to be sufficient remedies to compel lessees to protect the lessors’ other lands from drainage and to proceed with their reasonable development in due course. We add that these covenants exist independent of the primary term and continue to protect the outside acreage. The covenant to develop requires the lessee to develop all of the lease as would any ordinary prudent operator. These plaintiffs have a remedy for a breach of this covenant if it occurs, which remedy could consist of either a cancellation of that part of the lease, for damages, or for both. [Citations.]
“The minority rule urged by plaintiffs, and which we decline to follow, in our view fails to consider the applicability of the implied covenant of reasonable development to the type of situation before us. . . .” (p. 556.)
We hold production within the unit, although not on the eighty acres in the unit, extended the 1949 lease beyond its primary term as to that acreage and that lease has not expired. Accordingly the judgment is reversed. | [
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Foth, J.:
Lee Alan Humbolt appeals from convictions by a jury of involuntary manslaughter (K.S.A. 21-3404) and leaving the scene of an accident (K.S.A. 8-1602). The charges arose out of a hit-and-run accident on December 29, 1974, in which pedestrian Lisa Pratt was struck and killed. Driving on the wrong side of the roadway was the misdemeanor charged as a necessary element of the manslaughter count.
About 7:30 on the fatal evening Lisa and two high school friends were walking west along 83rd Street south of Wichita. So as to be able to see oncoming traffic the girls were walking on the left side of the street, in the eastbound lane; Lisa was nearest the street’s center line. Sadana Kerby, one of Lisa’s companions, testified that she heard and saw a vehicle which appeared to be in their lane approaching from behind them to the east, but she didn’t say anything because it was quite a distance away. As the vehicle got closer Sadana started to tell Lisa to look out, but was too late. Lisa’s tennis shoes were left in the highway; her body was subsequently found in a ditch approximately eighty-five feet from the point of impact. Ann Nufer, the second companion, testified that the vehicle continued in the wrong lane. Both girls identified the vehicle as a truck but because of darkness were unable to observe its color.
Four days later officers working on a tip found a light blue Ford pickup with left front damage in Oklahoma City. It was registered to defendant and his wife. They located the defendant in Oklahoma City and subsequently followed him into Kansas where they arrested him. When arrested he stated, “I have been expecting this.” He went on to tell the arresting officer that he hadn’t slept much lately and that “[t]he worst person in the world couldn’t live with this.”
The truck, which had been left in Oklahoma City, was seized and subjected to laboratory analysis. Paint, glass and fabric samples found on the truck matched those at the scene. Edward Hardison, a friend whom Humbolt had visited the evening of December 29, just prior to the accident, testified that he had noticed no damage to the truck’s left front fender at that time. It was stipulated that Humbolt’s wife saw the damage to the truck when he returned home between 9:00 and 9:30 that night.
On appeal defendant’s contentions fall into three categories: the admission of two pieces of opinion testimony, the instructions, and the sufficiency of the evidence.
The last argument, encompassing three points on appeal, is clearly without merit. It was not necessary to prove by eyewitness identification that defendant was driving the fatal instrumentality. Conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Steward, 219 Kan. 256, 547 P.2d 773, Syl. 13; State v. Wilkins, 215 Kan. 145, 523 P.2d 728. The test on appellate review is not whether the state has excluded every reasonable hypothesis of innocence but whether there was a basis in the evidence for a reasonable inference of guilt. State v. Steward, supra; State v. Sparks, 217 Kan. 204, 535 P.2d 901; State v. Crosby, 182 Kan. 677, 324 P. 2d 197. In this case the evidence showed that it was defendant’s truck that was involved in the accident, and that he was driving it just before and within two hours afterwards. These facts, coupled with his admissions on being arrested, afforded ample grounds for the jury’s inference that he was driving the truck at the time of the accident.
The opinion testimony now claimed to have been erroneously admitted was that of the officer investigating the scene of the accident and that of Edward Hardison, the friend Humbolt visited just before the accident. The officer, based on the location of the tennis shoes and debris in the roadway and the statements of Lisa’s companions, opined that the point of impact was some five feet into the south or left lane of the street. Hardison, based on defendant’s manner of speaking, drowsiness, and inability to keep a cigarette in his mouth, stated that defendant “appeared to be” under the influence of alcohol at the time they were visiting.
There are two reasons why the admission of this testimony does not constitute reversible error. First, there was no objection at trial to any of the testimony except that Hardison’s first answer was not responsive. In the absence of specific contemporaneous objection we cannot reverse. K.S.A. 60-404; State v. Carter, 220 Kan. 16, 551 P. 2d 821; State v. Moore, 218 Kan. 450, 543 P. 2d 923. Second, assuming neither witness was an expert, under K.S.A. 60-456 (a) the trial court may admit opinion testimony which is “rationally based on the perception of the witness” and is “helpful to a clearer understanding of his or her testimony.” In ruling on such evidence the court has wide discretion. Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395. Where an opinion is admitted the trial judge is “deemed to have made the finding requisite to its admission.” (K.S.A. 60-456 [c].) Both opinions met the test of the statute.
In the instruction area defendant claims error in the trial court’s failure to give a special instruction on the circumstantial nature of the state’s case. No such instruction was requested, and that alone precludes appellate review unless the failure was “clearly erroneous.” K.S.A. 22-3414 (3); State v. Suing, 210 Kan. 363, 502 P. 2d 718, Syl. 1. That the omission was not clearly erroneous is demonstrated by State v. Wilkins, supra, holding that such an instruction is unnecessary when a proper instruction on the state’s burden of proof is given. The burden of proof instruction given here, as in Wilkins, was basically PIK (Criminal) 52.02. It is not challenged and was adequate.
Finally, defendant claims error in the giving of an instruction on “flight.” There was an objection below to the instruction as originally proposed, but none to the instruction as given, after it had been amended to conform to defendant’s objections. Hence, under the authorities just cited, we are once again precluded from reversing unless the instruction was “clearly erroneous.”
The instruction here was identical to the first paragraph of the instruction given in State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, except that the one sentence disapproved in that case was omitted here. (Also omitted, in compliance with defendant’s request, was the second paragraph.) The text of the instruction given here, as the court said in Moffitt, is “a correct statement of the law.” (199 Kan. at 524.) Further, this case is not like State v. McCorgary, 218 Kan. 358, 543 P.2d 952, cert. den. 429 U.S. 867, 50 L. Ed. 2d 147, 97 S. Ct. 177; or State v. Floyd, 210 Kan. 383, 502 P. 2d 744. In those cases there was no evidence of flight, and a flight instruction was therefore held to be improper. Here, the evidence showed that the defendant fled not only from the scene of the accident but from the state as well, and failed to show up for work when expected. As evidencing defendant’s consciousness of guilt these were proper matters for the jury’s consideration, whether or not a special instruction was called for. State v. McCorgary, supra, was decided almost nine months after this case was tried. In McCorgary the jury was instructed that they might consider a number of circumstances as evincing the defendant’s “consciousness of guilt.” In addition to flight the instruction mentioned concealment, fabrication of evidence, the use of a false name and the giving of false information. The instruction was declared faulty only because, as noted above, there was no evidence of flight. Nevertheless, in remanding for a new trial the court specifically directed that no “consciousness of guilt” instruction be given at all, whether supported by evidence or not.
This direction was in line with the court’s evolving policy of disapproving any instruction “which emphasizes and singles out certain evidence admitted at a criminal trial.” (State v. McCorgary, supra at 365.) The weight to be given any evidence is a matter for counsel to argue and for the jury to determine.
This does not mean, however, that giving the instruction here was reversible error. An instruction, although unnecessary or in a form disapproved by the supreme court, is not “clearly erroneous” where it correctly states the law and does not mislead the jury. See, e.g., State v. Powell, 220 Kan. 168, 551 P. 2d 902 (circumstantial evidence); State v. Holloway, 219 Kan. 245, 547 P. 2d 741 (definition of reasonable doubt); State v. James, 217 Kan. 96, 535 P. 2d 991 (“shotgun” instruction under K. S. A. 60-455); State v. Rosler, 216 Kan. 582, 533 P. 2d 1262 (alibi instruction). The instruction given here was such a correct statement, was not misleading, and was therefore not clearly erroneous.
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Rees, J.:
This is an action for determination of the distribution of the property of Robert Dean Shields, who died intestate of gunshot wounds inflicted by his wife, Victoria Ann Shields, on December 6, 1974. Victoria has been convicted of feloniously killing Robert. The two children of the couple claim that by reason of K.S.A. 59-513 Victoria has no interest in any property in which Robert had an interest. Victoria appeals from the district court ruling upholding the claim of the children.
Victoria claims she is the owner of one-half the real and personal property owned by her and Robert as joint tenants and if her claimed ownership is prevented by K.S.A. 59-513, the statute is an unconstitutional contravention of Section 12 of the Bill of Rights of the Kansas Constitution.
The pertinent part of the district court decision is as follows:
“3. Victoria Ann Shields has no interest in the property of the estate of Robert Dean Shields, deceased, whether it be property owned by Robert Dean Shields individually or property owned jointly between Robert Dean Shields, deceased, and Victoria Ann Shields. That the statute K.S.A. 59-513 is clear in its meaning.
“4. That K.S.A. 59-513 is constitutional.”
Joint tenancy has been the subject of many decisions of our Supreme Court and it recently has been the subject of decisions of this court. In awareness of that case law, we believe it proper to state the three material facts before us: (1) Real and personal property was owned by two persons in joint tenancy; (2) one joint tenant is dead; and (3) the surviving joint tenant has been convicted of the felonious killing of the deceased joint tenant. The issue before us is determination of the property interest of a joint tenant who has been convicted of the felonious killing of the other joint tenant.
L. 1970, Ch. 225, § 1 (referred to herein as K.S.A. 59-513) reads as follows:
“No person who shall be convicted of feloniously killing, or procuring the killing of another person shall inherit or take by will, by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of his estate or property in which the decedent had an interest: Provided, That when any person shall kill or cause the killing of his spouse, and shall then take his own life, the estates and property of both persons shall be disposed of as if their deaths were simultaneous pursuant to the provisions of K.S.A. 58-701 to 58-705, inclusive.”
Section 12 of the Bill of Rights, as amended in 1972, states:
“No conviction within the state shall work a forfeiture of estate.”
The questions before us have been before the appellate courts of other states. Various and irreconcilable dispositions have resulted. We will not attempt to set forth all views which have found a following.
Some states have taken the view that a killer loses all interest in property held in joint tenancy with the victim. Van Alstyne v. Tuffy, 103 Misc. 455, 169 N.Y.S. 173; Merrity v. Prudential Ins. Co. of America, 110 N.J.L. 414, 166 A. 335; Sikora v. Sikora, 160 Mont. 27, 499 P.2d 808. The position is a minority one and we find it incompatible with Section 12 of the Bill of Rights.
Several states have employed constructive trusts to limit, but not totally destroy, the killer’s interest in property held in joint tenancy with the victim. A frequently adopted view is that the killer should be limited, as a matter of equity, to a life interest in one-half the earnings of the property and this is implemented by judicial imposition of a constructive trust that affords to the heirs of the deceased one-half the earnings of the property and a remainder interest that ripens into full ownership of the property upon the death of the killer. Hargrove v. Taylor, 236 Or. 451, 389 P.2d 36; Colton, et al. v. Wade, 32 Del. Ch. 122, 80 A.2d 923; Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188; 51 A.L.R. 1100; Restatement of Restitution, § 188; 4 Scott on Trusts, §493.2 (2d ed. 1956). We do not believe the imposition of a constructive trust in the disposition of this case is possible in light of our Supreme Court’s expressed opposition to constructive trusts in such circumstances. In re Estate of Pyke, 199 Kan. 1, 13-14, 427 P.2d 67.
Other states have taken the position that the killing of one joint tenant by the other joint tenant operates as a severance of the joint tenancy resulting in a tenancy in common whereby the killer retains ownership of an undivided one-half interest in the property and the other one-half interest vests in the heirs of the victim. Grose v. Holland, 357 Mo. 874,211 S.W.2d 464; Bradley v. Fox, 7 111. 2d 106, 129 N.E.2d 699; Cowan v. Pleasant, 263 S.W.2d 494 (Ky. 1953); Johansen v. Pelton, 87 Cal. Rptr. 784, 8 Cal. App. 3d 625.
Persuasive language for this approach appears in Johansen v. Pelton, supra, as follows:
. . [T]he result to be obtained may vary depending on whether the problem is approached from the viewpoint of what the slayer had, or what the victim lost. The now generally repudiated rule that the survivor take all disregards the general principles of unjust enrichment . . . and fails to consider at all what the malefactor gained. The New York rule and that recommended in the comment in the Restatement appears to unduly weigh what the victim lost. It does so to the derrogation of what the slayer had before, equitably if not legally. The seeming anomaly that the part gained and the part lost cannot be reconciled is due to the fact that the inchoate rights — with survivorship — of the two joint tenants are in reality greater than the whole while the tenancy exists. Any solution must, therefore, at best be a compromise. For the reasons set forth above it is concluded that a solution which recognizes the slayer’s preslaying inchoate right to one-half the property is most equitable.” (pp. 791-792.)
A particularly relevant case is the decision of the Oklahoma Supreme Court in Duncan v. Vassaur, 550 P.2d 929 (Okla. 1976). Oklahoma has a “forfeiture of estate” prohibition in its Constitution similar to that of Kansas. Okla. Const., Bill of Rights, Art. 2, § 15. Oklahoma also has a “slayer statute” (84 O.S. 1971, § 231) essentially the same as K.S.A. 59-513 which guided the Oklahoma court in arriving at its conclusion although it was not in effect at the time of the murder. In factual circumstances very similar to those of the present case, the court concluded that the murder of the husband by his wife severed the joint tenancy, resulting in a tenancy in common, saying in part:
“We are of the opinion that the most equitable solution of the question is to hold that by the murder, the joint tenancy is separated and terminated and one-half of the property should go to the heirs of the deceased husband (murdered person) and the other one-half to the murderer, wife, or to her heirs, when deceased. By such holding, the joint tenancy is changed to a tenancy in common. We so hold.” (p. 931.)
Pre-1970 Kansas case law, constitutional language and predecessors of K.S.A. 59-513 we consider of material relevance, in chronological order, are: Bill of Rights, § 12 (prior to amendment in 1972); McAllister v. Fair, 72 Kan. 533, 84 Pac. 112; G.S. 1915, § 3856 (L. 1907, Ch. 193, § 1); Hamblin v. Marchant, 103 Kan. 508, 175 Pac. 678; G.S. 1939, 59-513 (L. 1939, Ch. 180, § 35); In re Estate of Foster, 182 Kan. 315, 320 P.2d 855; and In re Estate of Pyke, supra.
In Foster the joint tenants were husband and wife. The husband was convicted of the felonious killing of his wife. The statute then in effect, G.S. 1949, 59-513, provided that a slayer did not “inherit, or take by will or otherwise from [the deceased] any portion of his estate.” It was held the wife’s interest in the property became no part of her estate and the husband took the whole property by the original conveyance. In Pyke the joint tenants also were husband and wife. It was found that the husband killed his wife and then committed suicide. The husband was the wife’s sole heir. Obviously the husband was not convicted of felonious killing. It was held the husband’s heirs succeeded to the joint tenancy property. In our view, the 1970 enactment of the present K.S.A. 59-513 was a legislative response to Foster and Pyke.
The incidents of joint tenancy and the rights of joint tenants are aptly and sufficiently described in Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P.2d 347, as follows:
“The doctrine of joint tenancy and its application to personal as well as to real property has been recognized in this state for many years. (Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647; and In re Estate of Biege, 183 Kan. 352, 327 P.2d 872, and cases cited therein.) From the many cases dealing with the doctrine certain rules have emerged which are presently recognized in this jurisdiction. Running through all of our cases, commencing with Simons v. McLain, 51 Kan. 153, 32 Pac. 919, is the concept that the grand incident of joint tenancy is survivorship, by which the entire tenancy, on the demise of any joint tenant, descends to the survivor or survivors and at length to the last survivor. This concept of joint tenancy was most recently stated in Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, 524 P.2d 1127, wherein we held:
“ ‘Survivorship is the distinctive characteristic and the grand incidence of an estate in joint tenancy. On the death of a joint tenant the property descends to the survivor or survivors and the right of survivorship terminates only when the entire estate, without the tenants having disposed of their title or otherwise terminating the tenancy, comes intp the hands of the last survivor.’ (Syl. 3.)” (pp. 81-82.) “. . . [Ujnder a joint tenancy agreement ... a surviving joint tenant . . . does not take as a new acquisition from the deceased joint tenant under the laws of descent and distribution, but under the conveyance or contracts by which the joint tenancy was created, his estate merely being freed from the participation of the other. (In re Estate of Pyke, 199 Kan. 1, 427 P.2d 67; In re Estate of Foster, 182 Kan. 315, 320 P.2d 855; and Dexter v. Dexter, [10th Cir. 1973] 481 F.2d 711.) Prior Kansas decisions, dealing with the incidents of joint tenancy, are reviewed in In re Estate of Foster, supra, and it is pointed out that the rights of joint tenants become vested by the conveyance; that each holds one and the same interest; and that nothing descends to the survivor, nor does he acquire any new title or estate by virtue of the death of the other grantee, but that such survivor takes the whole estate by the original conveyance.” (pp. 83-84.)
Thus we find that each joint tenant has a vested identical interest. The effect of the death of one of two joint tenants is that the survivor “takes” the interest of the deceased and the resulting interests of the survivor are freed from participation of the deceased.
K.S.A. 58-703 directs that in the event of simultaneous death of two joint tenants the property shall be distributed one-half as if one had survived and one-half as if the other survived. This is indicative of legislative recognition that a joint tenant is the owner of an interest equal to that of each other joint tenant.
We conclude that the result of proper statutory construction is that a surviving joint tenant who is convicted of the felonious killing of the other joint tenant succeeds to an undivided one-half interest in the property. Although it may be argued that such surviving joint tenant has gained because the one-half interest has been freed of participation of the deceased, to hold otherwise would result in a taking of the survivor’s vested equal interest in the property. The loss by the survivor of his or her vested interest is not imposed as a penalty for the felonious killing under our penal statutes and such penalty would, in our view, constitute a forfeiture in contravention of Section 12 of the Bill of Rights. (See Hamblin v. Marchant, supra, at 510.)
It would be unreasonable to construe K.S.A. 59-513 to direct, in cases such as the one before us, that if the surviving spouse should take his or her own life, one-half the property would be distributed to his or her devisees, legatees or heirs, but in absence of suicide there is no interest in the property subject to devise, bequest or intestate succession. Although not material to the case before us, we also believe the possibility that a convicted slayer could resurrect an interest in property previously held in joint tenancy by taking his or her own life is both unreasonable and contrary to legislative intent.
In Foster, the court looked to G.S. 1955 Supp. 58-501 (now K.S.A. 58-501), relating to the creation of tenancies in common and joint tenancies, G.S. 1949, 58-703 (now K.S.A. 58-703), relating in part to disposition of joint tenancy property upon simultaneous death of the joint tenants, and G.S. 1955 Supp, 59-2286 (now K.S.A. 59-2286), relating in part to termination of joint tenancies by death. The court said:
“It is significant to note that in none of the mentioned statutes relating to the creation of joint tenancies, or the termination thereof by death, has the legislature seen fit to limit or restrict the right of a surviving joint-tenant because of criminal conduct on his part.” (182 Kan. at 320.)
As we view it, in 1970 the legislature saw fit to limit or restrict the right of such surviving joint tenant. It did not undertake to eliminate, take away or direct forfeiture of all right of such surviving joint tenant.
In our consideration of this matter, we have been guided in part by the following principles:
. . The various provisions of a statute in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if it is reasonably possible to do so. (Callaway v. City of Overland Park, 211 Kan. 646, 508 P.2d 902.) ... In construing a statute the legislative intent is to be determined by a general consideration of the whole act. Effect should be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable to reconcile the different provisions so as to make them consistent, harmonious and sensible. (Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P.2d 1162.) . . .” Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 332-333, 552 P.2d 1363.
“. . . It is the court’s duty to uphold legislation rather than defeat it. It is presumed that the legislature intended to pass a valid law. If there is any reasonable way to construe legislation as constitutionally valid it should be so construed. (Parker v. Continental Casualty Co., 191 Kan. 674,383 P.2d 937, and cases cited.)” Harris v. Shanahan, 192 Kan. 629, 635, 390 P.2d 772.
“When the constitutionality of a statute is challenged, this court is guided in its consideration by certain principles which were recently noted in Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304, 312-313:
“ ‘Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done, [cases cited.]’ ” Rogers v. Shanahan, 221 Kan. 221, 223, 565 P.2d 1384.
When Victoria Shields killed her husband and was subsequently convicted of second degree murder, the joint tenancy was severed and terminated and she became a tenant in common with the heirs of her husband. She retains an undivided one-half interest in the property. The lower court erred in depriving her of that interest.
An amicus curiae brief was filed raising issues which were not presented in the briefs of the parties and which do not appear to have been before the district court. These issues are not discussed since our rule is that an amicus curiae brief may not raise such issues. Cook v. Dobson Sheet Metal Works, 157 Kan. 576, 142 P.2d 709; State, ex rel., v. Hines, 163 Kan. 300, 182 P.2d 865; Hensley v. Board of Education of Unified School District, 210 Kan. 858, 504 P.2d 184.
Reversed and remanded for further proceedings consistent with the views expressed herein.
. The 1970 Session Laws set forth the statutory language as quoted. K.S.A. 59-513 contains the word “the” in the phrase “any portion of the estate or property.” The change is the result of editing and cannot alter the sense, meaning or effect of the Act. K.S.A. 1976 Supp. 77-136. | [
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Rees, J.:
This is an appeal from the district court’s refusal to order jail time credit requested by defendant. The one issue presented is whether the district court erred in giving defendant jail time credit for only 27 days.
On October 9, 1975, defendant, a juvenile, was arrested on a forgery charge. The next day a petition was filed in juvenile court alleging defendant was a delinquent. On October 21, 1975, the juvenile court found defendant not amenable to juvenile court proceedings and certified him to district court.
On November 6,1975, defendant pleaded guilty to one count of forgery. On November 26, 1975, the district court sentenced defendant to a term of one to ten years, but placed him on probation for a period of three years. No date was set for computation of defendant’s sentence and parole and conditional release dates. Defendant was released from custody after 49 days in jail.
Later and by reason of defendant’s violation of conditions of his probation, a bench warrant was issued by the district court and he was arrested in Monticello, New York, on May 21, 1976. Defendant was returned to Lyon County on August 18, 1976. He appeared before the district court on August 25, 1976, at which time his probation was revoked and he was ordered to serve the one to ten year sentence. The court set July 29, 1976, as the computation of sentence date. This gave defendant credit for only 27 of the total of 146 days of jail time since his initial arrest on October 9, 1975. The 27 days were attributable to the periods from November 6, 1975, to November 26, 1975, and from August 18,1976, to August 25, 1976. Thus, no credit was given for the 29 days from his initial arrest on October 9, 1975, to his guilty plea on November 6, 1975, or for the 90 days from his arrest in New York on the bench warrant on May 21, 1976, to his return to Lyon County on August 18, 1976. Therefore, there is in issue 119 days of possible jail time credit.
Defendant does not challenge the validity of his sentence or the revocation of his probation, but disputes the failure of the district court to give credit for the full amount of time spent in jail prior to August 25, 1976. We conclude the district court erred in not crediting defendant for the full 146 days spent in jail prior to the August 25, 1976, district court order directing that he be confined.
K.S.A. 21-4614 is applicable, and it provides in part as follows:
“Deduction of time spent in confinement. In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury, the judge, if he sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the journal entry of conviction, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in jail pending the disposition of the defendant’s case. . . .”
The language of K.S.A. 21-4614, providing that the computation date of the sentence “shall . . . reflect . . . time which the defendant has spent in jail . . .” is clearly mandatory. The statute was amended in 1973, effective July 1, 1974, to include the mandátory language. Prior to the amendment, the statute provided that allowance for time spent in jail pending disposition of the defendant’s case was discretionary with the court. Hazelwood v. State, 215 Kan. 442, 524 P.2d 704. The amendment of K.S.A. 21-4614 removed the district court’s discretion.
We discern no reason to deny defendant credit for the full 146 days spent in jail prior to his incarceration by order of the district court.
The fact that part of the jail time was by reason of juvenile court jurisdiction rather than district court jurisdiction is irrelevant. The juvenile court proceedings pertained to the same criminal act as that for which defendant was ultimately sentenced by the district court. Jail time spent under juvenile court jurisdiction pending certification and trial as an adult has been credited to a defendant under a statute which mandates credit for jail time spent “for any reason arising out of the offense.” State v. Young, 44 Ohio App.2d 387, 339 N.E.2d 668 (1975). On oral argument, the state correctly conceded that defendant should have credit for the 29 days from October 9, 1975, to November 6, 1975.
The fact that part of the jail time was in New York also is irrelevant. Defendant was being held in New York only upon the authority of the Kansas bench warrant issued for probation violation. Statutes granting credit for presentence confinement have been construed to provide for inclusion of time spent in jail in another jurisdiction awaiting return for trial. People ex rel. Bradley v. Davies, 17 Ill.App.3d 920, 309 N.E.2d 82 (1974); People v. Havey, 11 Mich. App. 69, 160 N.W.2d 629 (1968); Com. ex rel. Bleecher v. Rundle, 207 Pa. Super. 443, 217 A.2d 772 (1966); State v. Dozier, 263 S.C. 267, 210 S.E.2d 225 (1974); People v. Nagler, 21 App.Div.2d 490, 251 N.Y.S.2d 107 (1964).
The initial granting of probation to the defendant did not deprive him of his statutory right to credit for time spent in confinement. In People v. Syczyk, 5 Misc.2d 521, 164 N.Y.S.2d 413 (1957), the court rejected the argument that the defendant was not entitled to credit for time spent in jail prior to the grant of probation where probation was later revoked and sentence imposed. The court said in part:
. . Violation of probation does not constitute a separate and independent crime, but is merely a breach of probationary rules and conditions which enables the Court to review, modify, or otherwise alter its original sentence (People ex rel. Wilson v. Additon, 40 N.Y.S.2d 669). Here the sentence to a term in Sing Sing prison after the violation of probation by the defendant constituted a revocation of the original sentence. . . .” (p. 522.)
In Syczyk, the defendant was given credit both for jail time before probation was granted and for jail time while awaiting revocation of probation and imposition of sentence.
In Guerra v. State, 518 S.W.2d 815 (Tex. App. 1975), the Court of Criminal Appeals of Texas found, under a statute similar to K.S.A. 21-4614, that a probationer whose probation was revoked was entitled to credit for time spent in jail pending the revocation.
The A.B.A. has assumed a liberal stance toward the granting of credit for time spent in jail before imposition of sentence. See A.B.A. Standards Relating to Sentencing Alternatives and Procedures, Sec. 3.6.
The 1973 amendment making the jail time credit provisions mandatory rather than discretionary discloses legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. The statute places no limits, conditions or discretion upon the grant of credit. Therefore, we conclude defendant was entitled to have the full 146 days credited to his sentence.
The case is remanded to the trial court with direction to determine and order computation of sentence in accord with this opinion. As thus modified, the judgment is affirmed. | [
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Abbott, J.:
This is an action brought by Mt. Carmel Medical Center of Pittsburg, Kansas, against the Board of County Commissioners of Labette County, Kansas, seeking recovery of money due on a hospital bill for medical services furnished an indigent prisoner who was injured when he jumped from the fourth floor of the Labette County Courthouse in Oswego, Kansas.
The trial court allowed recovery of the hospital bill on the theory that defendant was negligent in allowing the prisoner to escape from jail and that the prisoner’s injuries and medical care were incurred as a result of his escape. The learned judge specifically denied recovery on a statutory duty theory holding as a matter of law that the prisoner was in the status of an escaped prisoner when the injuries occurred and “that the county was not liable for medical attention for indigent prisoners while the prisoner was in the status of an escaped prisoner from the custody of the sheriff.”
The Board of County Commissioners of Labette County, Kansas, hereinafter referred to as the county commission or county commissioners, appealed from the judgment alleging the trial judge erred in (1) finding the sheriff negligent, (2) finding the prisoner’s injuries were the direct and proximate result of the sheriff’s negligence, (3) not applying the doctrine of governmental immunity, (4) finding Labette County liable for the sheriff’s negligence, and (5) failing to find that Mt. Carmel Medical Center was not the real party in interest pursuant to K.S.A. 60-217 (a).
Mt. Carmel Medical Center, hereinafter referred to as the hospital, cross appealed alleging the trial judge erred in (1) finding the prisoner was an escaped prisoner when injured, (2) finding the county was not liable for medical treatment to an indigent prisoner in the status of an escaped prisoner, (3) not finding that the sheriff had a duty to recapture the escaped prisoner, and (4) his conclusion that the sheriff could have recaptured the prisoner either at the time he was injured or after his hospitalization was not determinative of the county commission’s liability for the hospital bill.
The material facts are not in dispute. William Love was a prisoner in the Labette County jail serving a one-year misdemeanor sentence. The prisoner was completing his eighth month as an inmate and had obtained trustee status. The jail, the jailer’s quarters, and other facilities used by the sheriff are located on the fourth floor of the courthouse. Some nights a jailer occupied the jailer’s quarters, but on three nights a week the jailer was off duty and no one other than the prisoners was on the fourth floor. The sheriff did not know whether or not a jailer was at the jail on the night of the escape. In any event, no one checked on the prisoner from 10:00 p.m. until the following morning.
On September 22, 1974, at approximately 2:00 a.m., Love removed a ceiling panel and some two-by-four’s and crawled through an opening above a locked steel door into a storeroom. The prisoner walked down a hallway to an unlocked window and either jumped or dropped four stories to the ground. Among other injuries, the prisoner received a broken leg. A neighbor heard his screams and called the Oswego police. The police arrived and called an ambulance. The ambulance, a doctor and a sheriff’s deputy arrived at the scene. The doctor recommended hospitalization where orthopedic care was available. The deputy sheriff concurred in the decision to send Love to the hospital. Love was then transported to the hospital.
Love was hospitalized until October 11, 1974. Upon his discharge from the hospital, Love was picked up by the Labette County sheriff and transported to the home of Love’s parents. Love’s leg was still in a cast, and medical personnel had advised the sheriff that Love should be kept under observation. The sheriff did not have the personnel to stay around the clock with Love, so Love was taken to the home of his parents who agreed to take care of him. No guards were posted at either the hospital or the home of Love’s parents. Love was never picked up and put back in jail to serve any remaining sentence. Love, however, was back in jail on two other separate and unrelated offenses, and while he was in jail the sheriff’s staff transported him to his doctor for treatment of his leg. No charge of escape or attempted escape was ever filed against Love.
Appellant is correct that the trial court erred in not applying the doctrine of governmental immunity. From statement of counsel on oral argument, it is apparent the trial judge was under the impression Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, had declared the doctrine of governmental immunity unconstitutional and void and no longer applicable in Kansas. After this case was tried and judgment rendered, a rehearing was granted in Brown, supra, and the original decision is modified in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015.
Prior to 1969, the law in Kansas was that a county was not liable for damages for negligence unless such liability was expressly authorized by statute or necessarily implied therefrom, even when the negligence arose at a time when the county was engaged in a “proprietary” function as opposed to a “governmental” function. (Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P.2d 561.) In 1969, the Supreme Court abolished the doctrine of governmental immunity as to all governmental bodies of the state when engaged in proprietary activities as distinguished from governmental activities. (Carrol v. Kittle, 203 Kan. 841, 457 P.2d 21.) In Carrol, the court stated each case must be governed by its own particular facts and gave broad guidelines that “[a] governmental agency is engaged in a proprietary activity when it embarks on an enterprise which is commercial in character or is usually carried on by private individuals, or is for the profit, benefit or advantage of the governmental unit conducting the activity.” (Syl. 7.)
The court in Carrol went on to recognize the authority of the legislature to control governmental immunity and in effect invited the legislature to adopt a comprehensive tort claims act. Rather than adopt a tort claims act, the next session of the legislature adopted K.S.A. 46-901, et seq. in 1970, and the two Brown cases, supra, followed.
Plaintiff cannot recover against the county for negligence in the absence of statutory authority (express or implied) unless it can show the county’s negligence arose out of a “proprietary” function as distinguished from a governmental function. Kansas has long held that the maintenance and operation of law enforcement departments and jails are governmental functions as distinguished from proprietary. (Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 482 P.2d 46.) No statutes are cited by appellee granting either express or implied authority to sue, nor does appellee claim waiver of immunity by purchase of liability insurance pursuant to statute.
Appellee argues that the county did not affirmatively plead governmental immunity as a defense and thereby waived that defense. The trial court, in considering the county’s motion to alter or amend judgment, noted that the county was adequately advised of the hospital’s theories, that the hospital was advised of the county’s affirmative defenses, and that the parties had consented to the court’s considering all theories advanced and all affirmative defenses. The judge then made a specific finding: “The Court finds that defendant cannot hide behind the doctrine of governmental immunity, and that [as] a practical matter, governmental immunity is a dead issue in this State. The county in operating a jail is not immune from tort liability.”
The county did not waive governmental immunity, and the trial court considered the issue even though the court rejected the theory. We note there is authority that a claimant has the burden of pleading and proving his right to bring an action for damages for negligence against governmental units. (57 Am.Jur.2d, Municipal, Etc., Liability, § 310, p. 261.) Further, there is authority that governmental immunity is not an affirmative defense, but is jurisdictional and may be raised at any time. (Moore v. City of St. Petersburg, 281 So.2d 549 [Fla. App. 1973].) In view of the trial court’s consideration of the issue and our decision, we need not determine whether governmental immunity is jurisdictional or an affirmative defense, and do not do so.
The remainder of appellant’s points, some of which appear to have merit, need not be considered as a result of our decision that the hospital’s claim is barred insofar as it is based on a tort theory. It is a well-established rule that the judgment of a trial court will be upheld if it is correct, even though the trial court may have assigned an erroneous reason for its decision when the determinative facts are undisputed. (Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719; Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 124, 519 P.2d 1092.)
We turn now to appellee’s cross appeal. Both parties agree that in Kansas a sheriff has a duty to furnish medical attention to a prisoner in his custody who is in need thereof, at the county’s expense if the prisoner is indigent and no other source of funds is available. This is clearly the law in Kansas. (Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P.2d 886; Levier v. State, 209 Kan. 442, 497 P.2d 265.)
The trial judge made a finding of fact that Love was injured while in the status of an escaped prisoner. In the applicable criminal statute (K.S.A. 21-3809 [2]), “escape” has been defined to mean “departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.”
In State v. McGrew, 190 Kan. 834, 378 P.2d 94, the prisoner was convicted of “breaking the county jail” when he escaped from a third floor window of an administrative office of the sheriff. Both the jail and the administrative office were located on the third floor. The court held the removal of the screen and opening of a window in the administrative office constituted a breaking of the jail. The trial court, based on the rationale of McGrew, supra (30A C.J.S., Escape, § 4, p. 877; 72 C.J.S., Prisons, § 23 [c], p. 893; and 27 Am.Jur.2d, Escape, Prison Breaking, and Rescue, § 1, p. 848), had ample evidence before it to support its finding that Love was in the status of an escaped prisoner when he landed on the ground and received the injuries that led to the hospital bill sued on, and that finding will not be disturbed on appeal. The fact that Love was an escaped prisoner when he suffered the injury is not determinative of the sheriff’s responsibility to provide medical services for the prisoner. The determinative factor is whether Love was in custody when the decision was made to transport Love to the hospital. The fact that the sheriff did not post a guard at the hospital would be immaterial, for, once the duty to furnish medical care attaches, the hospital’s claim cannot be defeated by the sheriff’s failure to carry out his sworn duties due to the lack of manpower.
We are of the opinion custody had been reestablished as a matter of law prior to the prisoner’s being placed in the ambulance and transported to the hospital. To hold otherwise defies logic.
The sheriff of Labette County has charge and custody of the county jail of his county and of all prisoners in the same (K.S.A. 19-811). A deputy sheriff arrived at the scene shortly after the escape occurred. Love was lying under an open window and was obviously badly injured. The deputy knew Love was a prisoner and concurred with the doctor in the decision to take Love to the hospital. The deputy was also fully aware that Love was serving a sentence imposed by a local judge and that his sentence had not been terminated, suspended, or set aside. The deputy, as an agent of the sheriff, clearly had a statutory duty and obligation to reacquire custody of Love (K.S.A. 22-3427).
In addition, our Supreme Court has held, “It is the duty of a sheriff to confine prisoners committed to his care in strict ac cordance with provisions of the commitments under which they are received and to faithfully execute the sentences imposed.” {State, ex rel., v. Robinson, 193 Kan. 480, Syl. 1, 394 P.2d 48.) In Robinson, the Supreme Court ousted a sheriff for allowing a prisoner serving a sentence to go home nights and return to jail in the morning, with no supervision or control by the sheriff over the prisoner. In Robinson, the court said:
“It was held long ago that where a court has pronounced sentence, ‘. . . it is the duty of the sheriff to immediately proceed to carry the sentence into effect. . . .’ (In re Strickler, Petitioner, 51 Kan. 700, 702, 33 Pac. 620.) In Jackson v. State, 52 Kan. 249, 34 Pac. 744, this very same rule was applied, and we said:
“ ‘. . . it is the duty of the sheriff to take prisoners into his custody and keep them. If he has no convenient place for doing so, he must use one that is not so convenient. . . .’ (p. 252)
“In Whalen v. Cristell, 161 Kan. 747, 173 P.2d 252, this court held:
“ ‘The duty of an officer in executing the mandate of a judicial order in the nature of a commitment is purely ministerial and his power with respect thereto is limited and restricted to compliance with its terms.’ (Syl. 4.)” (p. 484.)
The sheriff recognized that duty. The prisoner was released from the hospital to the sheriff, who took the prisoner to the home of the prisoner’s parents solely because the sheriff did not have the manpower to provide the care that the prisoner needed. The sheriff testified that after Love broke his leg, “he was still, as far as I was concerned, a prisoner and entrusted to my custody.” The sheriff, or deputy, had a duty to use every lawful means to recapture and return the prisoner to jail (27 Am.Jur.2d, Escape, supra, § 26, p. 867).
No one can reasonably argue that had Love been found by the sheriff or deputy at the same location in an uninjured condition the sheriff or deputy could have refused to retake custody. Indeed, had the sheriff or deputy refused to reacquire custody, he might well be charged with a crime under K.S.A. 21-3812 (c), as well as being subject to ouster.
Appellant sets forth many arguments as to what could happen if this judgment is affirmed and carries the examples to the extreme. Our answer is that each case must be judged on its own individual set of facts. In this case the sheriff had reacquired custody of the prisoner in an injured condition. It was the sheriff’s duty to provide the indigent prisoner with medical care of a type and kind that could not be provided in the county jail or in any place other than a hospital. The sheriff could not abandon his prisoner or merely put the injured indigent prisoner back in a cell without medical care. Such actions would violate K.S.A. 19-1919, which requires humane treatment of a prisoner. The sheriff also would run the risk of incurring personal civil liability (Pfannenstiel, supra) by such neglect. The prisoner was transported to the hospital with the knowledge and consent of the sheriff’s deputy who had a responsibility in the matter. The prisoner remained in the hospital with the sheriff’s knowledge and consent.
We conclude that the medical services rendered by the appellee were proper charges against the county under the facts in this case.
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Leben, J.:
Seven times over a period of several months, a Greeley County sheriff s deputy climbed into a trash truck before it entered Lewis Hoffman’s rural homestead. Hoffman’s trash was picked up and taken to the county landfill, where two deputies sifted through it for evidence of drug activity. Based on what was found in these warrantless searches, officers obtained a search war rant and found substantial evidence that Hoffman had attempted to manufacture methamphetamine, among other drug-possession violations.
The district court granted Hoffman’s motion to suppress the evidence against him and concluded that the officers were not justified in intruding on Hoffman’s property to search his trash. The State claims on appeal that Hoffman didn’t have a reasonable expectation of privacy in trash that he had left for collection by a third party. Because no significant facts are disputed, we review the district court’s legal conclusion without any required deference. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
Hoffman’s dumpster is not visible from any public road, and a visitor must travel a quarter mile on his driveway, a private dirt road running through a fenced pasture, before reaching the dumpster. Just to get to the driveway, you have to drive more than 2 miles east from Tribune, Kansas (population 835), on Highway 96. We agree with the district court: Hoffman did not lose all expectation of privacy with respect to the trash in his dumpster solely because he voluntarily had a third party haul that trash away.
Trash pulls, in which officers pick up someone’s trash and look through it for evidence of criminal activity, have become one of many accepted investigative techniques for law enforcement. The United States Supreme Court upheld them in California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988), with respect to garbage bags left at the curbside for city trash collection. Because the Fourth Amendment prohibits only unreasonable searches, the Court held that “society would not accept as reasonable [a] claim to an expectation of privacy in trash left for collection in an area accessible to the public.” 486 U.S. at 41. The Court noted that “plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” 486 U.S. at 40. For items left in such an accessible place, “the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.” 486 U.S. at 41.
Of course, Greenwood differs from Hoffman s case in a significant respect. The trash in Greenwood was on the curb of a city street in Laguna Beach, California, not a quarter mile from a public roadway in rural Kansas.
The Kansas Supreme Court considered a case that is factually similar to Hoffman’s in State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007). A three-member plurality was joined by another justice in concluding that the district court properly suppressed evidence collected in a trash pull from a rural residence. The plurality opinion applied a two-part test. First, the court must determine whether the trash was located within the curtilage of the residence. By curtilage, we refer to the area around a home where intimate activities of the family occur, an area that the Fourth Amendment protects. 283 Kan. at 282. Second, if the trash is located within the curtilage, the court must determine “ whether the person manifested a subjective expectation of privacy in the trash container and whether that expectation of privacy in the garbage is objectively reasonable.’ ” 283 Kan. at 290.
The first question — whether the trash was within the curtilage of Hoffman’s residence — is easily answered here. The district court found that it was, and ample evidence supported that conclusion. A person traveling on the quarter-mile dirt driveway to the residence first comes over a slight ridge while approaching a tree fine that hides the residence from the highway. After coming over that rise, you enter a fenced (but ungated) area where the grass is mowed and farm implements are parked. You then pass through a tree row that surrounds the house and some outbuildings. There’s a circle drive by the house, and the dumpster is located about 100 feet from the back door of the home. On appeal, the State has not challenged the district court’s conclusion that Hoffman’s trash dumpster was within the curtilage of his home.
The second question presents more difficulty. The facts of Fisher are very similar to Hoffman’s because a trash-filled dumpster that wasn’t visible from a public roadway either at all (in Hoffman’s case) or was hard to spot (in Fisher’s case) was left within the curtilage of a rural home. But one important difference pinpoints the issue in this case: the defendant burned his own trash in his dumpster in Fisher, but Hoffman paid to have his trash picked up and taken to the county landfill. The State argues that this distinction makes the difference in this case because “any objective or subjective expectation of privacy disappeared when the Defendant put his trash in the dumpster for collection by sanitation workers.”
We find it significant that Greenwood was not decided based on the idea that the defendant had lost any expectation of privacy in his trash when he put it out for trash pick-up. Rather than deciding the case solely on a theory of abandonment, the Court emphasized that the expectation of privacy was lost at least in part because his trash was accessible to the public. See LaFave, Search & Seizure § 2.6(c) (4th ed. 2004); Greenwood, 486 U.S. at 51 (“The Court properly rejects the State’s . . . theory that trash is abandoned and therefore not entitled to an expectation of privacy.”) (Brennan, J., dissenting). The Seventh Circuit has noted that the Greenwood Court “chose not to rely on principles of abandonment . . . despite the reliance on that principle by most of the circuit courts which had considered the constitutionality of garbage searches.” United States v. Hedrick, 922 F.2d 396, 398 (7th Cir. 1991). We conclude that the fact that Hoffman had left his trash for pick-up by a trash collector, standing alone, does not eliminate any reasonable expectation of privacy because Greenwood suggests that this fact alone is not determinative.
And the only difference of note between Hoffman’s case and Fisher is that Hoffman had a third party to haul away his trash but Fisher did not. Our reading of Fisher also suggests that this fact standing alone does not call for a different result than the one reached in Fisher. The Fisher plurality noted that “[a]n important inquiry in applying the Greenwood analysis to garbage within the curtilage is whether the garbage was so readily accessible to the public that its contents were exposed to the public for Fourth Amendment purposes.” 283 Kan. at 291. While the view we’ve noted from Fisher was adopted by only a plurality of three justices, it is consistent with the United States Supreme Court’s opinion in Greenwood.
Thus, the Fisher plurality’s conclusion seems to us equally applicable to Hoffman’s case:
"Under these circumstances, we conclude rural residents in Kansas would be quite surprised to learn that highway travelers, ‘children, scavengers, snoops and other members of the public’ . . . would be fully justified in pawing through the contents of a resident’s trash bag placed approximately 100 yards from the highway and behind a rural home.” 283 Kan. at 292.
Hoffman’s trash was a quarter mile from any public roadway, well over the 100 yards in Fisher; Hoffman’s trash was certainly not accessible to the public in any meaningful or intentional way.
We acknowledge that the resolution of this case, like many Fourth Amendment cases, involves some degree of subjectivity. The Fourth Amendment prohibits only unreasonable searches and seizures — and what’s unreasonable has some measure of subjectivity. But our analysis is guided by cases already decided by the United States Supreme Court and the Kansas Supreme Court.
Courts in some other jurisdictions have concluded that a person never has a reasonable expectation of privacy in trash left out for collection by a third party. E.g., United States v. Moss, 175 F. Supp. 2d 1067, 1071 (M.D. Tenn. 2001); Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). These courts have gone well beyond the holding and rationale of Greenwood, which emphasized the importance of public accessibility to the trash left out for collection. Given the importance of public accessibility to the rationale of both Greenwood and Fisher, we believe that those cases provide the most helpful guidance in reaching the correct result in Hoffman’s case. His trash was in no way accessible to the public. Given his rural setting, we conclude that the mere fact that he allowed a third party to haul his trash away did not eliminate his reasonable expectation of privacy in that trash. The district court properly held that the trash pulls at Hoffman’s dumpster violated the Fourth Amendment, and that violation requires that the evidence be suppressed because it was obtained by a warrant based on the illegal trash pulls.
The judgment of the district court is affirmed. | [
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Gernon, J.:
Dianne M. Young was convicted of mistreatment of a dependent adult. On appeal, she raises several issues, including the constitutionality of the statute, the sufficiency of the evidence, and the denial of her request for a bill of particulars.
The State cross-appeals regarding the giving of an instruction.
Constitutionality of Statute
Young contends that K.S.A. 21-3437, concerning mistreatment of a dependent adult, is unconstitutionally vague. She filed two motions to dismiss based on this theoiy. Both were denied.
In State v. Heironimus, 262 Kan. 796, 802, 941 P.2d 1356 (1997), the court set forth rules to apply in deciding the constitutionality of a statute:
“Resolving the constitutional status of a statute is a question of law; thus, we exercise an unlimited, de novo standard of review. [Citation omitted.] The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity. Before a statute may be stricken we must determine, beyond substantial doubt, that the statute violates the constitution. In deciding constitutionality, it is our duty to uphold the statute under attack rather than defeat it.”
In determining whether a statute is unconstitutionally vague, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory treatment. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983).
Young was charged with violating K.S.A. 21-3437, which provides:
“(a) Mistreatment of a dependent adult is knowingly and intentionally committing one or more of the following acts:
(3) omitting or depriving treatment, goods or services by a caretaker or another person which are necessary to maintain physical or mental health of a dependent adult.
“(c) . . . ‘Dependent adult’ means an individual 18 years of age or older who is unable to protect their own interest.” (Emphasis added.)
Young contends that the phrases “another person” and “unable to protect their own interest” are unconstitutionally vague. Young also argues that the statute allows for arbitrary and discriminatory enforcement. She asserts that the vague definition of dependent adult permits arbitrary prosecution because the spectrum of what constitutes a dependent adult is broad.
The only part of the statute validly on appeal is the phrase “unable to protect their own interest.” A challenge was not made in the trial court to the phrase “another person,” and defense counsel there agreed that the phrase was clear.
We conclude that the statute passes the tests outlined in Dunn. The phrase “unable to protect their own interest” is readily understandable by persons of common intelligence. See Dunn, 233 Kan. at 418. Therefore, we agree with the trial court’s conclusion that the statute is not unconstitutionally vague.
Young’s argument that the statute allows for arbitrary and discriminatory enforcement also fails.
Bill of Particulars
Young contends the denial of a bill of particulars impaired her ability to prepare a defense. She wanted the State to provide specifics regarding the time the crime occurred, the actions or omissions which constituted the crime, and how the victim qualified as a dependent adult.
A bill of particulars has two functions: (1) to inform the defendant of the nature of the charges and the evidence to enable him or her to prepare a defense and (2) to prevent further prosecution for the same offense. State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985).
The standard of review when a bill of particulars is denied is abuse of discretion. State v. Kee, 238 Kan. 342, 354, 711 P.2d 746 (1985). 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. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997).
The trial court correctly concluded that a bill of particulars was unnecessary when the defendant had access to all of the State’s evidence. Johnson County District Attorney’s Office has an “open file” policy. Young requested particulars 6 months into the case and after full discovery. The fact that full discovery was provided is significant because a bill of particulars is a form of discovery. State v. Coburn, 220 Kan. 743, 745, 556 P.2d 376 (1976). The State provided a list of federal cases supporting the supposition that full discovery renders particulars unnecessary. See generally United States v. Buckner, 610 F.2d 570, 574 (9th Cir. 1979), cert. denied 445 U.S. 961 (1980); United States v. Giese, 597 F.2d 1170, 1180-81 (9th Cir. 1979), cert. denied 444 U.S. 979 (1979).
Next, we consider Young’s request for the specific time the offense occurred. If the State is not required to prove the precise time a crime occurred because it is not an essential element of the offense, then a denial of particulars as to time is not error. Myatt, 237 Kan. at 28. The complaint alleged the violation occurred between 1993 and 1995. The information provided in discovery raised the possibility that the offense occurred during this entire period. Thus, there was no prejudice from failure to grant particulars as to the time of the offense because Young was aware that the State’s allegations regarding the time the offense occurred was an approximation over a 2-year period.
Sufficiency of the Evidence
Young contends the evidence was insufficient to sustain the conviction. She argues the evidence failed to support a finding that Young withheld any treatment, goods, or services from the victim, John, that were detrimental to his physical or mental health. Young also asserts that a conviction under K.S.A. 21-3437 requires the State to show that the victim was injured and that such injury was the direct result of the mistreatment.
The standard of review when the sufficiency of the evidence is challenged on appeal is whether, after review of all the evidence, viewed in the fight 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. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
Young’s admission to being John’s caretaker, coupled with John’s residence in Young’s home, supported the finding that Young, at the minimum, knowingly acted or failed to act. Testimony about John’s condition and living situation from the EMTs, the emergency room nurse, the police officers, and the treating physicians, in addition to the photographs, supported a finding that Young deprived John of treatment, goods, or services which were necessary for his health. Contrary to Young’s assertion, K.S.A. 21-3437 does not require the State to prove the mistreatment resulted in injury to the victim.
Cross-Appeal
The State appeals the trial court’s decision to include a jury instruction creating an affirmative defense to mistreatment of a dependent person.
The State’s cross-appeal is dismissed for lack of jurisdiction. The State has preserved a question for review. Under K.S.A. 22-3602(b)(3), “[a]ppeals to the supreme court may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others: ... (3) upon a question reserved by the prosecution.” This question should have been appealed to the Kansas Supreme Court.
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Wahl, J.:
Valley State Bank (VSB), Tim Kohart, and Kevin White, defendants, appeal from the district court decision dismissing without prejudice plaintiff Brook Hughs’ retaliation action against them under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. The Kansas Human Rights Commission (KHRC) has filed a brief as amicus curiae.
Plaintiff Brook Hughs was employed by defendant VSB between 1981 and 1994. In early 1994, Hughs filed a complaint with the KHRC, alleging sex discrimination by her supervisor, defendant Kevin White. Because the complaint was untimely under state law, it was not docketed by the KHRC. However, the KHRC forwarded the complaint to the federal Equal Employment Opportunity Commission (EEOC), which docketed the case in its agency.
In April 1994, VSB suspended Hughs’ employment, and she was ultimately terminated in May 1994. On April 19,1994, Hughs filed a charge with the EEOC, contending VSB had retaliated against her for filing the prior complaint. These allegations were set forth in an EEOC Form 5 which indicated Hughs wanted the charge filed with both the EEOC and the KHRC. The only employer identified anywhere in the complaint was VSB.
The EEOC forwarded a copy of Hughs’ retaliation charge to the KHRC. The KHRC sent a letter to Hughs advising her to contact the KHRC if she wished to file a state complaint. Hughs contends she never received this letter. Because Hughs did not respond, the KHRC did not formally docket her retaliation complaint in its records.
During this time, there existed a worksharing agreement between the KHRC and the EEOC. There were also related contracts between the two agencies governing federal funding to the KHRC for investigating charges filed under the dual system.
In September 1994, the EEOC issued right to sue letters to Hughs on both the original and the retaliation charge. Hughs thereafter filed a civil action in federal district court alleging the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994) et seq., and the KAAD.
During the federal case, the court ordered the KHRC to produce its records of Hughs’ complaints. In response, the KHRC advised the federal court that no complaint from Hughs had ever been docketed with the agency. Defendants later moved to dismiss the federal suit, citing failure to exhaust administrative remedies and lack of federal court jurisdiction. In support of the latter argument it was asserted that VSB did not employ enough individuals to fall within the provisions of Title VII. The case was dismissed by the federal court based on defendants’ uncontested motion. A week later, another order was issued by the federal court, dismissing the case without prejudice.
Hughs filed the present action in Hamilton County District Court shortly after the dismissal of the federal suit. The sole claim was that Hughs’ termination was contrary to Kansas public policy. The defendants answered, asserting various affirmative defenses, including failure to exhaust administrative remedies. In her first amended petition, Hughs added a claim of retaliation under the KAAD. Neither complaint alleged Hughs exhausted any administrative remedies.
After discovery, defendants filed a motion for summary judgment, asserting that plaintiff s only claim for relief was under the KAAD and that she failed to timely file a complaint with the KHRC. Because it was now too late to file such a charge, the defendants claimed they were entitled to judgment as a matter of law. In her response, Hughs contended that the filing of her EEOC retaliation charge, which was forwarded to the KHRC, was sufficient to initiate proceedings before the KHRC. She also alleged that any fifing date should be equitably tolled because the EEOC misled her into thinking no other fifing was necessary.
In January 1998, the district court ruled on the motion. The court cited various KHRC administrative regulations and the EEOC-KHRC worksharing agreement to find that Hughs’ EEOC complaint was “filed” with the KHRC and state administrative proceedings were therefore timely commenced. Because no final action had been taken by the KHRC, the district court found Hughs had not exhausted her administrative remedies. Accordingly, the complaint was dismissed without prejudice so Hughs could exhaust those remedies. Defendants timely appeal from that order.
Does this court have jurisdiction to hear this appeal P
The parties have argued the merits of this case without questioning the jurisdiction of this court. However, an appellate court has the duty to question jurisdiction on its own initiative. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Parties cannot confer jurisdiction by consent or by failing to assert lack of jurisdiction. Copeland v. Robinson, 25 Kan. App. 2d 717, 720, 970 P.2d 69 (1998), rev. denied 266 Kan. 1107 (1999).
The question is whether the trial court’s ruling constitutes a final, appealable order. A final decision generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. State ex. rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 509, 941 P.2d 371 (1997). While there was a final order in this case in the sense that this proceeding has concluded, it is not clear whether it is final for purposes of appeal.
Generally, a district court order remanding an administrative proceeding to the agency for additional findings of fact is not a final, appealable order. Holton Transport, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 12, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985).
Holton Transport does not seem to control as this case is not a direct appeal from an administrative agency action. Instead, it is an independent cause of action under the KAAD. See Van Scoyk v. St. Mary’s Assumption Parochial School, 224 Kan. 304, 305, 580 P.2d 1315 (1978). In addition, the trial court did not remand this case to the agency but simply dismissed the case without prejudice' so the administrative remedies could be exhausted.
The Supreme Court has held that a defendant could not appeal from the denial of a summary judgment motion with respect to claims that were voluntarily dismissed without prejudice by the plaintiff. See Smith v. Welch, 265 Kan. 868, 883, 967 P.2d 727 (1998).
This case does not fit neatly with the Smith holding. In Smith, but for plaintiff s voluntary dismissal, the trial court had issued no final ruling on the plaintiffs claims. Here, the trial court dismissed plaintiffs claims without prejudice as premature. However, the trial court’s ruling necessarily determines the administrative agency has jurisdiction to proceed with an investigation and that a second suit could follow thereafter. We have found no Kansas cases in which a defendant was allowed to file or prohibited from filing an appeal when the trial court dismissed without prejudice. The Supreme Court has permitted an appeal from an order overruling a motion to dismiss when the ground for dismissal was lack of jurisdiction. Hoffman v. Dautel, 190 Kan. 131, 135, 373 P.2d 191 (1962); Dick v. Drainage District No. 2, 187 Kan. 520, 524, 358 P.2d 744 (1961).
Federal courts have interpreted their statutes to permit a defendant to appeal from dismissals without prejudice when the defendant claims the dismissal should have been with prejudice. See, e.g., Farmer v. McDaniel, 98 F.3d 1548, 1549 (9th Cir. 1996), cert. denied 520 U.S. 1188 (1997) (dismissal of habeas corpus petition without prejudice appealable when State argued petition should be dismissed with prejudice); Kirkland v. National Mortg. Network, Inc., 884 F.2d 1367, 1369-70 (11th Cir. 1989) (voluntary dismissal without prejudice appealable by defendant seeking to challenge court’s order disqualifying counsel); Massachusetts Fire & Marine Ins. Co. v. Schmick, 58 F.2d 130 (8th Cir. 1932); see also 15A, Wright, Miller & Cooper, Federal Practice & Procedure, § 3914.6 (1992) (defendant can appeal dismissal without prejudice in order to argue dismissal should have been with prejudice).
While the district court dismissed the case so the KHRC could complete its administrative procedures, defendants contend that both the KHRC and the district court lack jurisdiction to hear Hughs’ claims. As a result, defendants contend, they are adversely affected by the dismissal without prejudice as they may be subject to further action by the KHRC and subject to the potential of a second lawsuit. Cf. Domino Sugar v. Sugar Workers Local 392,10 F.3d 1064, 1067 (4th Cir. 1993) (dismissal of labor dispute without prejudice for failure to exhaust contractual remedies was appeal-able because ruling required plaintiff/employer to proceed to arbitration before seeking judicial relief).
. These circumstances are unique, but we conclude that this court does have jurisdiction' to hear this appeal.
Did the filing of a charge of discrimination with the EEOC constitute the filing of a complaint with the KHRC ?
In denying the defendants’ motion to dismiss, the district court ruled that Hughs’ filing of a retaliation charge with the EEOC constituted the fifing of a charge with the KHRC. The court concluded that (1) the EEOC charge contained all the information required by the KAAD and KHRC regulations; (2) the KHRC received a copy of the EEOC charge within 6 months; and (3) the worksharing agreement between the agencies allowed the EEOC charge to be accepted as a KHRC complaint. Defendants challenge the first and third conclusions reached by the court. The KHRC, through its amicus brief, joins the defendants in these arguments.
This court is required to interpret the Kansas statutes and regulations as well as the worksharing agreement. Contrary to Hughs’ assertions, this is not a case where the trial court exercised any discretion. The trial court did not have discretion to determine whether it had jurisdiction to hear Hughs’ claims.
The parties agree that persons seeking to pursue a claim under the KAAD must exhaust their administrative remedies prior to filing suit. See Wagher v. Guy’s Foods, Inc., 256 Kan. 300, 309-10, 885 P.2d 1197 (1994). To initiate administrative proceedings under the KAAD, a complaint must be filed with the agency within 6 months of the unlawful conduct. K.S.A. 44-1005(i). The dispute is whether Hughs commenced an administrative action with the KHRC.
The interpretation of a statute is a question of law, and the appellate court’s review of a question of law is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). Interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is generally entitled to great deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996). The courts, however, are the final arbiters in interpreting statutes and will take corrective action if an administrative body’s interpretation is erroneous as a matter of law. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999).
Similarly, when interpreting administrative regulations, the courts generally will defer to an agency’s interpretation of its own regulations. The agency’s interpretation will not be disturbed unless it is clearly erroneous or inconsistent with the regulation. Murphy v. Nelson, 260 Kan. 589, 595, 921 P.2d 1225 (1996). The administrative agency may not use its power to issue regulations to alter the legislative act which is being administered. In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 647, 753 P.2d 304, rev. denied 243 Kan. 779 (1988).
The trial court also based its ruling on the agency relationship created by the EEOC-KHRC worksharing agreement. The interpretation and legal effect of a written agreement is a question of law over which an appellate court exercises unlimited review. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998). Whether a contract is ambiguous also is a question of law over which the appellate court has unlimited review. In re Estate of Sanders, 261 Kan. 176, 181-82, 929 P.2d 153 (1996).
We now turn to the central question of this appeal — whether Hughs’ filing of an EEOC charge of retaliation, which was dual-filed and forwarded to the KHRC, was sufficient to initiate a state agency proceeding under the KAAD.
The KAAD requires any person aggrieved by an unlawful employment practice to sign and file with the KHRC a verified complaint containing specified information. K.S.A. 44-1005. A KHRC proceeding is commenced by the filing of “a complaint or other document.” K.A.R. 21-40-9. The regulations define “complaint” as “a written statement made under oath and filed with the commission alleging any violation of any statutory or other authority, orders, rules, or regulations over which the commission may have jurisdiction.” K.A.R. 21-40-l(i). The complaint must be in writing either on a form obtained from the KHRC or “on any paper suitable for a complaint.” K.A.R. 21-41-2. The complaint can be received in person at KHRC offices or by mailing. K.A.R. 21-41-5.
All complaints and original pleadings filed with the KHRC must ‘ be signed by the party in interest, or by his or its attorney.” K.A.R. 21-40-7(d); see K.A.R. 21-40-l(t). This signature constitutes a verification of the information and the signatory’s belief as to the truth of the information. K.A.R. 21-40-7(g). The original must be signed and verified before a notary public. K.A.R. 21-41-2.
Hughs’ EEOC charge was filled out on an EEOC Form 5 rather than the KHRC’s standard form. The EEOC form contained all of the information, i.e., identity of the complainant, identity of the employer, a description of the unlawful employment actions required by the Kansas statutes and regulations, but the KHRC received only a copy of the Hughs’ signature and verification, not the original signature and verification.
If the KHRC were to accept copies of the signature and verification, it would be necessary to verify each signature and notarization before initiating the proceeding in order to ensure that the statutory requirements are met. A copy of a verified complaint would pose evidentiary problems because it did not contain an original signature and verification.
The KHRC cannot initiate its administrative processes based upon information received from the EEOC. Because the KHRC is bound by the confidentiality provisions of Title VII, the agency cannot disclose any information it receives from the EEOC and the information can only be used by the KHRC for internal informational purposes.
Under the worksharing agreement, the KHRC is obligated to comply with Title VII’s confidentiality provisions and cannot disclose information obtained from the EEOC to the public. This prevents disclosure of information such as the existence of a Title VII charge involving particular parties or information obtained during an EEOC investigation. Public disclosure can be made only after a Title VII lawsuit has been filed.
The United States Supreme Court has interpreted these provisions to allow disclosure of information to the parties to the agency proceeding, but not to the public in general. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 598, 66 L. Ed. 2d 762, 101 S. Ct. 817 (1981). In so ruling, the Supreme Court noted that the legis lative history indicated the confidentiality provisions were “ ‘not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges.’ ” 449 U.S. at 599 (quoting 110 Cong. Rec. 12819, 12723 [1964]).
The confidentiality provisions of Title VII are inconsistent with Kansas law. The Kansas Open Records Act, K.S.A. 45-215 et seq., generally requires the records of state agencies to be open to the public. K.S.A. 45-218(a). The Act does allow agencies to refuse to disclose records when federal law prohibits disclosure or when records relate to agency investigations into violations of civil laws or administrative regulations. K.S.A. 45-221(a)(l) and (11).
Despite the exceptions available under the Kansas Open Records Act, KHRC proceedings, as created by statute and regulations, eventually would conflict with the federal confidentiality rules. While the KHRC could notify VSB, as a party, that it had received and docketed an EEOC charge, other problems would arise. Under agency regulations, complaints filed with the KHRC are docketed and the docket is available for inspection and copying by the public. K.A.R. 21-40-10. While the state statutes and regulations do not allow for disclosure of conciliation procedures, K.S.A. 44-1005(e), a public hearing must be held if the conciliation procedures fail. K.A.R. 21-45-8(k).
Various KAAD statutory provisions and regulations conflict with Title VII confidentiality rules prohibiting public disclosure prior to the filing of a Title VII suit. The KHRC would have to treat charges initiated through the EEOC differently from those initiated with the state agency. This imposes a substantial burden on an agency with limited resources. Under these circumstances, it is not unreasonable for the KHRC to treat EEOC charges as informational only in the absence of a separate KHRC charge. Under KHRC procedures, employees filing EEOC charges must file a separate charge directly with the KHRC. This permits the KHRC to handle the claim under its own regulations, despite the stricter confidentiality rules of Title VII.
The Worksharing Agreement
The district court also relied on the worksharing agreement in effect between the EEOC and the KHRC in finding that Hughs’ timely EEOC charge, which was forwarded to the KHRC, satisfied the requirement for filing a verified complaint with the KHRC. Under the agreement, the two agencies designated each other as “its agent for the purpose of receiving and drafting charges.” The agreement also provides that each agency will inform persons “of their rights to file charges with the other Agency” and to assist persons in drafting “a charge in a manner which will satisfy the requirements of both agencies.” The agreement provides the parties will use an EEOC Charge Form 5 or any charge form acceptable to both agencies. The agency which initially receives a dual-filed charge is obligated to advise the charging party and the respondent of “the rights and responsibilities of the parties under the applicable Federal, State, or Local statutes.” An agency’s authority to receive charges on behalf of the other “does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge.” The worksharing agreement further defines which agency had priority to initially process the charges filed with each other.
At least two federal judges in Kansas have rejected arguments that the filing of an EEOC charge satisfies a party’s obligation under the KAAD. See O’Loughlin v. The Pritchard Corp., 972 F. Supp. 1352, 1361 (D. Kan. 1997) (Rushfelt, Magistrate Judge); Young v. Desco Coatings of Kansas, Inc., 179 F.R.D. 610, 613 (D. Kan. 1998) (Vratil, J.). The cases, however, are distinguishable. The parties in these cases failed to make any cogent legal argument to support their claims that fifing with the EEOC was sufficient. The courts in these cases simply rejected the employee’s assertions which cited no authority. In addition, Judge Rushfelt in O’Loughlin specifically noted that the plaintiff had not marked the EEOC form to indicate he wished to file his charge with both agencies.
The question of whether the EEOC’s action is sufficient to initiate state proceedings for purposes of pursuing a claim under the state anti-discrimination laws has not arisen frequently. Unfortunately, the cases in which the issue has been considered are of little or no precedential value. The cases fail to detail the exact terms of the worksharing agreement between the federal and state agencies. The EEOC has utilized different types of worksharing agreements with different agencies. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 117, 100 L .Ed. 2d 96, 108 S. Ct. 1666 (1988) (noting worksharing agreements are individually negotiated).
The terms of the worksharing agreement before us fail to clearly spell out the effect that the filing of an EEOC charge would have with respect to exhausting administrative remedies for a KAAD claim. While the agreement designates the EEOC as an agent for the KHRC for drafting complaints, it does not clearly provide that one charge would be acceptable at both the state and administrative level. The agreement mentions using an EEOC Form 5 but also indicates that any other form agreeable to the parties could be used. Finally, the agreement specifically states that each agency will tell complainants of their rights and obligations under parallel federal or state laws. Simply stated, the worksharing agreement is ambiguous.
The record is wholly silent about the circumstances leading to the execution of the worksharing agreement. Although it filed an amicus brief in this court, the KHRC did not participate in the trial court. There is no evidence in the record of the EEOC’s interpretation of the worksharing agreement.
The record does reflect some evidence that the EEOC and the KHRC had complainants file charges on separate agency forms. When Hughs filed her original discrimination charge with the KHRC, she used the KHRC rather than the federal form. When Hughs filed her retaliation charge with the EEOC, she completed the EEOC Form 5. The KHRC, after receiving a copy of the EEOC charge, sent a letter to Hughs inviting her to file a charge with the state agency. Even if Hughs did not receive this letter, it provides some insight as to KHRC’s interpretation and implementation of the worksharing agreement.
Although KHRC’s position was not asserted before the trial court, it is clear from the amicus brief that KHRC’s standard operating procedure was not to docket an EEOC charge as an active state case unless a separate KHRC charge was filed. This is logical in a practical sense because many dual-filed charges are handled solely by the EEOC and the complainant pursues only federal rem edies. Thus, the charge is sent to the state agency only to comply with federal exhaustion requirements under 42 U.S.C. § 2000e-5 (1994).
The only evidence presented at the summary judgment hearing showed an ambiguous worksharing agreement that was interpreted by KHRC to require employees to file separate claims with the state agency to initiate proceedings under the KAAD. Hughs failed to present any evidence, other than an out-dated worksharing agreement to counter KHRC’s interpretation and implementation of the worksharing agreement. Under these circumstances, absent a basis for estoppel, the district court erred in not granting the defendants) motion for summary judgment and not dismissing plaintiffs claim with prejudice for failing to timely file a complaint as required by the KAAD.
Plaintiff s Estoppel Claims
In her response to the summary judgment motion, Hughs argued that she was told the EEOC charge was all that was required to initiate state proceedings as well. She claims that the EEOC’s inaction should not be imputed to her and/or its misrepresentations should estop the defendants from relying on her failure to file separate charges with the KHRC.
We need not determine whether the EEOC’s action could estop the defendants from raising the exhaustion defense because the record fails to establish sufficient facts to support a claim of equitable estoppel in this case.
“Equitable estoppel is the effect of the voluntary conduct of a party that precludes that party, both at law and in equity, from asserting rights against another who relies on such conduct. A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced tire first party to believe certain facts existed. There must also be a showing the first party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993).
The EEOC is not a party to this action, and Hughs makes no claim of estoppel against the defendants.
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Walker, J.:
Mario Garza appeals his conviction of one count of sale of marijuana and one count of possession of marijuana without a drug tax stamp.
Garza’s convictions resulted from a controlled buy made at the home of Melissa Shelby. In exchange for reduced charges on earlier drug crimes, Shelby was working with police and allowed the drug buy to occur at her residence. Several police officers observed the events leading up to the buy and were able to identify Garza as the person who was at Shelby’s home, but the only person to actually witness the buy was Shelby.
Police were also in possession of a tape recording made of Shelby’s telephone conversations with Garza.
Garza was charged with the crimes over 1 year after the buy actually occurred. To say the least, Shelby was an extremely reluctant witness. She failed to appear at the first prehminary hearing and appeared at a second scheduled hearing only after being arrested and held as a material witness. Both at the preliminary hear ing and the trial, Shelby stated that she remembered little or nothing about the buy. The admission of her testimony and the tape-recorded conversations were the subject of extensive pretrial motion activity by Garza, including two motions in limine and one motion to suppress arguing that Shelby should not be permitted to testify. All these motions were denied by the trial court.
A few days before trial, the court held a hearing to determine whether Shelby would assert her Fifth Amendment privilege against self-incrimination. Neither Garza nor his counsel was notified of the hearing. Shelby indicated at the hearing that she would invoke her Fifth Amendment rights, and the trial court held that she could not be called as a witness unless the State granted her immunity.
On the date of trial, Garza and his counsel were notified of the prior hearing with Shelby at which she had invoked her Fifth Amendment rights. Garza’s counsel objected to the fact that he had not been notified of the prior hearing, and the court promptly held another hearing involving Garza’s counsel but without Garza being personally present. At that hearing, the State offered Shelby immunity, and the trial court held that she could no longer assert her Fifth Amendment privilege.
In spite of Shelby’s lack of recall, the trial court held she was available for cross-examination and allowed her to testify. Because of her “inability” to recall the events, the court admitted the tape-recorded conversations between Shelby and Garza. Understandably, during the trial there were a number of bench conferences outside the presence of the jury regarding Shelby’s testimony. Garza was convicted of the charges.
After the trial, the judge and counsel for both parties met with jurors to discuss the case. One juror asked why so many bench conferences had been held regarding Shelby’s testimony. They informed the juror that Shelby was a reluctant witness who claimed to have no recall of the buy. The juror then stated that an advance sheet of the Kansas Reports tabbed to a case was left in the jury room and that the tabbed case dealt with the same issue. The juror went on to say that the jurors had read and discussed the case.
Subsequently, Garza moved for a new trial based upon juror misconduct or, in the alternative, to have the jury recalled for further questioning. The trial court denied both motions.
Garza first argues that the trial court erred in denying his motion for a new trial or, in the alternative, his motion to recall the jury. This court’s review of an order denying a new trial or a motion to recall a juiy is limited to whether the trial court abused its discretion. State v. Franklin, 264 Kan. 496, 498, 958 P.2d 611 (1998). If a constitutional right has been violated, however, a judge’s discretion is limited. Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993). Then, there is a greater need for the judge to articulate the reasons for his or her “discretionary” decision. 252 Kan. at 731.
An exercise of discretion which results in an error of constitutional magnitude may not be held to be harmless unless an appellate court is willing to declare a belief that the error was harmless beyond a reasonable doubt. 252 Kan. at 732. A trial court abuses its discretion when a defendant can show that (1) the jury’s act constituted misconduct and (2) the misconduct substantially prejudiced the defendant’s right to a fair trial. State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994).
The basis for Garza’s allegation of juror misconduct is the fact that an advance sheet was left in the jury room, tabbed to a case which was directly on point to the issues in his case, and the jurors admitted to reading and discussing the case. The case involved was State v. Johnson-Howell, 255 Kan. 928, 881 P.2d 1288 (1994). The case involved a witness who, like Shelby, refused to testify at trial. The witness, like Shelby, had invoked his Fifth Amendment privilege and then refused to testify. As in the present case, over defense counsel’s hearsay objections, the witness’ prior out-of-court statements were admitted into evidence. The Supreme Court found that the trial court had erred in admitting the witness’ testimony pursuant to K.S.A. 60-460(a) because the witness refused to testify and was therefore not available for cross-examination. The Supreme Court ultimately found, however, that the error was harmless in view of the overwhelming evidence of the defendant’s guilt. Howell-Johnson, 255 Kan. at 952.
Garza correctly points out that prior to reading this case, the jury was left to wonder why Shelby could not recall the events of the drug buy and why there were so many bench conferences outside the jury’s presence. He argued that after reading the case, the jury could “fill in the blanks” and speculate that Shelby had made incriminating statements similar to the witness in Howell-Johnson and that these statements were being kept from them.
The trial court itself admitted to leaving the advance sheet- — ■ tabbed to the Howell-Johnson case — in the jury room during pretrial motions. The State admits that the case was on point, but argues that all the case does is “kind of explains the legal process . . . how the Court process works.” Further, the State argues that as a matter of law, the trial court is forbidden from inquiring into the thought processes of the jurors and, therefore, the jurors cannot be recalled.
This argument fails. The Kansas Supreme Court has held that the statutory prohibition against impeachment of a jury does not apply when a party claims that his or her constitutional right to a fair trial was violated by jury misconduct. Saucedo, 252 Kan. 718, Syl. ¶ 2.
Further, the fact that the case “explained the legal process” is precisely why the reading of the case by the jurors was prejudicial. The jury is supposed to learn about the legal process or how the court works only through jury instructions. The reading of this case — a case directly on point and used to support motions in the case — went far beyond those instructions. The State’s argument that it would be “far more detrimental to a fair trial for a jury to look at a dictionary defining legal terms,” referring to the Supreme Court’s ruling in State v. Duncan, 3 Kan. App. 2d 271, 593 P.2d 427 (1979), that the reading of the definition for the legal term “assault” in a dictionary did not prejudice a criminal defendant, is specious at best.
To compare a case in which the jury looked up the word “assault” to a case in which the jurors read a decision directly on point to one of the most litigated issues in a trial defies common sense. Cf. State v. Goseland, 256 Kan. 729. Moreover, it was the trial court itself that left the advance sheet in the jury room, making the error even more grievous. The State also argues that other jurisdictions have held that the mere reviewing of a reported case does not amount to sufficient evidence to necessitate a new trial. See United States v. Hill, 688 F.2d 18 (6th Cir.), cert. denied 459 U.S. 1074 (1982); State v. Powell, 400 N.W.2d 562 (Iowa 1987); Annaratone v. State, 399 So. 2d 825 (Miss. 1981); State v. Taylor, 917 S.W.2d 222 (Mo. App. 1996).
While this is true, these cases are easily distinguishable from the present case. In each of those cases the jury found extrinsic legal materials and read through them. In one case, the jury looked up the appropriate punishment for a defendant, although the jury was responsible for the guilt phase of the trial not the punishment phase. In none of the cases, however, did the jurors read a case directly on point to the issues in the trial from extrinsic legal materials left in the jury room by the court itself.
Shelby’s testimony — or lack of testimony — was the central issue in this case. The jurors’ reading of the Johnson-Howell case, which explained the law regarding the admission of her testimony and her ability to invoke her Fifth Amendment privilege, was clearly misconduct and substantially prejudiced Garza. The trial court’s refusal to grant a new trial or to recall the jury to determine whether the extrinsic evidence substantially affected the jury’s verdict was error which requires this court to reverse and remand for a new trial. See Saucedo v. Winger, 252 Kan. at 733.
Next, Garza argues that the district court erred in holding two hearings outside of his presence, thereby violating his rights to due process and confrontation of a witness. Whether a defendant’s right to confrontation and presence has been violated is a question of law. A question of law is subject to de novo review. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). A defendant has a constitutional and statutory right to be present at every stage of his or her trial. United States Constitution, Sixth Amendment; K.S.A. 22-3405.
The first hearing that was held outside of Garza’s presence was a hearing before trial to determine what Shelby’s testimony would be and to determine whether she would invoke her Fifth Amendment privilege. Neither defense counsel nor defendant was noti fied of the hearing. This court has held that a defendant’s presence at in-chambers conferences concerning questions of law is not essential to a fair and just determination of those questions. State v. Rhoads, 20 Kan. App. 2d 790, 794, 892 P.2d 918 (1995). Whether Shelby would testify was not only a question of law, it was the central question around which both the State and defense cases revolved.
In State v. Willis, 254 Kan. 119, 124, 864 P.2d 1198 (1993), the Supreme Court held that where a deposition of the key witness in a murder trial was taken outside of the presence of the defendant, his confrontation rights were violated. As in Willis, there is no showing here that Garza was notified of his right to be present at the hearing. Additionally, Shelby was the only witness who actually saw the drug buy and, for this reason, her testimony was vital to the determination of Garza’s guilt or innocence.
If Garza’s confrontation rights were denied, in order to affirm the trial court’s ruling, this court must find beyond a reasonable doubt that his absence had little if any likelihood of changing the result of the trial. See Willis, 254 Kan. at 123. As in Wülis, this court would be hard pressed to do so.
“The essence of assisting in one’s defense depends upon being confronted with the evidence and witnesses.” Willis, 254 Kan. at 124. Shelby’s testimony was crucial to the State’s case. Throughout the proceedings, Garza objected to Shelby’s testimony. He objected both through motions and orally. Whether Shelby would testify and whether she would invoke her Fifth Amendment privilege was the central focus of the pretrial motions in this case and most of the bench conferences during the trial.
Shelby was the only direct witness to the crime. Because Shelby’s testimony was central to both the prosecution and the defense in this case, this court cannot say beyond a reasonable doubt that Garza’s absence from the hearing had little, if any, likelihood of changing the result of the trial. Accord Willis, 254 Kan. at 126-27.
Having concluded that the defendant’s absence from the first hearing violated his constitutional rights, it follows that his absence from the second hearing — held the first day of trial and regarding the same issues — also violated his rights.
Finally, Garza argues that the introduction of Shelby’s tape-recorded conversation with him was inadmissible hearsay and that its admission violated his right to confront all witnesses against him.
Shelby’s testimony at the preliminary hearing and trial was consistent. She stated again and again that she could not recall the events related to the controlled buy. Because of her lack of recall, the State sought to introduce the tape-recorded conversation between Shelby and Garza pursuant to K.S.A. 60-460(a), previous statements of a person present, or 60-460(j), as a declaration against interest. The trial court found that Shelby was available for cross-examination and admitted the testimony as a declaration against interest.
A district judge has wide discretion in determining the admissibility of hearsay evidence under the declaration against interest exception. State v. Cooper, 20 Kan. App. 2d 759, 761, 892 P.2d 909, rev. denied 257 Kan. 1093 (1995). K.S.A. 60-460(j) contemplates that certain out-of-court statements are admissible in court if the judge, using judicial discretion, finds that the proffered hearsay statement was at the time of the assertion so far contrary to the declarant’s interest or subjected the declarant to civil or criminal liability to the extent that a reasonable person in declarant’s position would not have made the statement unless he or she believed such statement to be true. Additionally, the party offering the evidence must also make a showing of trustworthiness by the declarant. 20 Kan. App. 2d at 762.
If, however, a declarant has no good reason to believe that the assertion will bring harm or believes the assertion is more likely to cause benefit rather than harm, the assertion will not be excepted from the hearsay rule. 20 Kan. App. 2d at 763. The tape-recorded conversation between Shelby and Garza took place after she had already been arrested and after she had agreed to cooperate with the police. Shelby agreed to the controlled buy and made the statements in her role as a confidential informant. The statements did not subject her to further prosecution and, in fact, benefitted her. It is difficult to understand how statements which benefitted Shelby — she was allowed to plead to a lesser charge for her crimes — were a declaration against interest.
Shelby’s statements were also inadmissible pursuant to K.S.A. 60-460(a). A statement previously made by a person who is present at the hearing and available for cross-examination is admissible as an exception to the general rule that hearsay is inadmissible. K.S.A. 60-460(a). This exception does not apply in the present case because, for all intents and purposes, Shelby refused to testify. See State v. Johnson-Howell, 255 Kan. at 937; Cooper, 20 Kan. App. 2d at 763. The State did not seek to admit the testimony under any of the other hearsay exceptions and, even if it had, they do not appear to apply.
The trial court abused its discretion in admitting the tape-recorded testimony where the statements were not against Shelby’s interest and where she claimed to have no recall of the buy. Having already determined that Garza’s Confrontation Clause rights were violated, it is unnecessary to determine whether those same rights were violated by allowing the admission of a witness who was “unavailable” for cross-examination.
Garza’s convictions are reversed and the case is remanded for a new trial.
Reversed and remanded with directions. | [
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Lewis, J.:
This case represents another chapter in a bitter family feud. For a number of years, the late Elsie Johnson, her late husband, Albert, and her sons, Adley E. Johnson and Don A. Johnson, have been seeking a way to disinherit their son and brother, Cylus Johnson. Their efforts have been frustrated by the fact that in the early 1970’s, they entered into a settlement agreement in which all parties agreed that Cylus, Adley, and Don would all be treated equally in their parents’ estate. The first effort to get around the setdement agreement ended up in this court, and we held that effort invalid. See Johnson v. Johnson, 7 Kan. App. 2d 538, 645 P.2d 911, rev. denied 231 Kan. 800 (1982) (Johnson I). However, the parties have made another effort, which the trial court held violated the settlement agreement. Adley and Don appeal the decision of the trial court.
This dispute goes back to the late 1960’s and early 1970’s. In 1969, Elsie and Albert Johnson executed identical trusts which divided their estates equally among their three sons, Adley, Don, and Cylus.
In 1970, Albert and Elsie filed a petition seeking to have Cylus declared mentally ill. An ex parte hearing was held, and Cylus was placed in custody. Cylus was in custody only a short time, and, ultimately, the trial court which heard the petition on its merits held that Cylus was not mentally ill and that he should be discharged.
The 1970 episode appears to be the genesis of the family division which shows no sign of abatement in bitterness to this day.
Prior to the discharge of Cylus from the petition to declare him mentally ill, Albert and Elsie changed their trust and left everything to Adley and Don. The trust’s stated intent was that neither Cylus, his spouse, nor his issue were to have any portion of the trust assets.
Cylus then filed a lawsuit against Albert, Adley, and Don seeking a dissolution of the family business, a partnership, and for an accounting. A few months later, Cylus sued Albert and Elsie for false imprisonment and malicious prosecution for their role in initiating the mental illness proceeding against him.
Ultimately, the family decided to settle their various differences. They entered into a settlement agreement which, among other things, provided: “Cy and Shirley and Albert and Elsie desire to settle their differences in said cases, and in all other matters between the parties.” The key provision in this agreement, which has spawned the litigation with which we are presently dealing, was paragraph 9, which provided as follows:
“ ‘9. Albert and Elsie agree that Cy shall receive the same share of Albert and Elsie’s property as Adley E. Johnson and Don A. Johnson shall receive, whether by gift, Will, trust agreement, intestate succession, or any other means; it being the intent herein that Albert and Elsie shall treat Cy equally with his brothers, Adley E. Johnson and Don A. Johnson.’ ” 7 Kan. App. 2d at 540.
In 1972, Albert and Elsie rewrote their trust. The trust agreement provided that Cylus, his former wife Shirley, and their heirs should receive nothing from the estate. It went on to provide the same as to Adley and Don, but it left the entire estate in two shares, one for the wife and children of Adley and one for the wife and children of Don. Cylus and Shirley attacked these provisions as violative of the settlement agreement. The trial court ruled in favor of the estate, but on appeal, we reversed and granted summary judgment in favor of Cylus and Shirley, saying:
“[T]he intent of the parties in [the settlement agreement] was that Cylus, Adley, and Don were to be treated equally in that each would share, not that they would be treated equally in sharing nothing. Any benefit conferred on Adley and Don by reason of the distribution of Albert and Elsie’s property would also be conferred proportionately on Cylus.” (Emphasis added.) 7 Kan. App. 2d at 542.
We went on to say that “[t]he first supplement was made invalid by the settlement agreement” and that “[t]he second supplement [was] invalid because it was an improper attempt to avoid the settlement agreement.” 7 Kan. App. 2d at 543.
In 1982, Elsie tried again. She executed the Elsie G. Johnson Trust No. 2, in which she gave $1,000 to Adley, Don, and Cylus. The trust provides that upon the death of Adley and Don, the remaining trust assets are to be divided into two equal shares for the benefit of Adley’s and Don’s families. The stated intent of Trust No. 2, which is before the court at this time, is that Cylus, his spouse, and his issue of any degree should not receive any trust income, property, or benefit therefrom.
Elsie died in 1995. After her death, Adley and Don filed this action, seeking a declaratory judgment that Elsie was not bound by paragraph 9 of the settlement agreement quoted above. According to the petition, Cylus had failed to keep his promise to settle family differences in “all other matters between the parties.” The result, it is argued, was a failure of consideration, relieving Elsie from the settlement agreement. In the alternative, Adley and Don seek a declaration that the 1982 trust does not violate the settlement agreement or the earlier decision of this court because it treats each son equally.
The trial court concluded that (1) the essence of Johnson I was that Cylus could not be disinherited to the benefit of Adley and Don; (2) the issues of consideration for the settlement agreement were not raised in the prior litigation; (3) under Johnson I, Trust No. 2 was an obvious breach of the settlement agreement; and (4) any issues regarding the interpretation and/or enforceability of the settlement agreement were foreclosed by res judicata and/or collateral estoppel due to prior litigation. It held Cylus and his heirs were entitled to equal treatment with Adley and Don and their heirs in the distribution of Elsie’s estate under the terms of the original trust and the settlement agreement.
We agree in part with the trial court.
On appeal, Adley and Don first argue that the trial court failed to apply the correct standard in resolving a motion for judgment on the pleadings filed by Shirley. We disagree.
Although the motion, as originally filed, was for judgment on the pleadings, the trial court took into consideration matters outside the pleadings in deciding this action. Under these circumstances, a motion is to be treated as one for summary judgment. K.S.A. 60-212(c). The trial court correctly applied the legal standards in treating the matter as one for summary judgment and in ruling on it as a motion for summary judgment.
Under Supreme Court Rule 141 (1998 Kan. Ct. R. Annot. 176), if the party opposing a motion for summary judgment fails to controvert each of the movant’s factual contentions, that party is deemed to have admitted the facts not controverted. Adley and Don failed to controvert the facts set out in Shirley’s motion, and these facts are deemed admitted.
We have examined the record, and we hold that the trial court applied the correct standard in ruling on the motion in question. The issue is basically one of law, and that is whether Trust No. 2 violated the settlement agreement.
Adley and Don complain rather bitterly that the trial court appears to have ignored their contentions. We see no evidence of this fact and believe that the decision of the trial court was correct.
Appellants next argue that the trial court misapplied our earlier decision in Johnson I and, in the alternative, argue that the provisions made in Trust No. 2 do not violate the settlement agreement. We disagree.
In ruling in favor of Cylus and Shirley, the trial court concluded as follows:
“The attempted ‘equal’ treatment of the sons, with the disinheritance of the heirs of Cylus, is an obvious breach of the family settlement agreement approved by the Court of Appeals. The sons are not treated equally, where the families of two receive preferential treatment to the exclusion of the family of the third. The Trust No. 2 is therefore a clear breach of the family settlement agreement.”
We agree with the trial court.
Our review of a question of law is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
We conclude that our opinion in Johnson I dictates the result in this case. As we read Johnson I, it required that Cylus be treated equally with Adley and Don on the distribution of their parents’ estate. It appears to us to be beyond debate that the provisions of this trust do not treat the three sons equally. It is true that each of the three sons are to receive $1,000 from the trust. However, the family of Cylus is excluded from sharing in the remainder of the estate, and that remainder is left exclusively and totally to the families of Adley and Don. The trust agreement states that the stated intent of the trust is to exclude Cylus and his family from participating in the trust estate. We conclude that this violates the settlement agreement of the parties.
In Johnson I, we said:
“We hold that the intent of the parties in this regard was that Cylus, Adley, and Don were to be treated equally in that each would share, not that they would be treated equally in sharing nothing. Any benefit conferred on Adley and Don by reason of the distribution of Abert and Elsie’s property would also be conferred proportionately on Cylus.” (Emphasis added.) 7 Kan. App. 2d at 542.
Adley and Don argue that they are receiving only what Cylus is to receive. They argue that the fact that their families are to receive the entire estate to the exclusion of the family of Cylus does not violate the settlement agreement. We find this argument to be without merit.
We conclude that the efforts of the trust to vest the entire estate in the families of Adley and Don to the exclusion of Cylus was to confer upon Adley and Don a benefit not conferred on Cylus.
In Johnson I, we said:
“The second amendment to the trust was an attempt to again divide the remainder interest into two shares, labeled Adley’s share and Don’s share, to be administered and distributed for the use and benefit of the wives and children of Adley and Don, with express instructions that no distributions be made for the use or benefit of Cylus, Shirley, or their children. While the wording specified that no distribution was to be made for the benefit of Adley or Don, we can conceive of no circumstances where distributions for the use or benefit of the wives and children of Adley and Don would not at least indirectly benefit them also.
“It is apparent that the second trust amendment was an attempt by Albert to indirectly accomplish that which he had contracted not to accomplish directly. Generally speaking, that which may not legally be done directly may not be accomplished indirectly. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, Syl. ¶ 6, 507 P.2d 189 (1973).” 7 Kan. App. 2d at 543.
There is no question that this trust agreement is another effort to exclude Cylus and his family from sharing in the estate of Albert and Elsie. It is another effort to accomplish something indirectly which cannot be accomplished directly.
The settlement agreement entered into between the parties required equal treatment of all three brothers. Adley, Don, Albert, and Elsie have, through the years, worked long and hard to find a way around that agreement.
We hold that the trust agreement in question is invalid by reason of the settlement agreement. The arguments of Adley and Don to the contrary are without merit.
Adley and Don seek to raise an issue in this action, which was filed in 1995, that apparently had not been raised before. They now argue that Cylus may not rely on the settlement agreement because of a failure of consideration. They point out that the agreement was intended to setde “all other matters between the parties.” They argue, among other things, that Cylus failed to settle the personal issues with his family, refused to become part of the famr ily, and refused to treat his parents with respect. The result of this, they argue, is a failure of consideration by reason of Cylus’ failure to perform that portion of the agreement.
The trial court concluded that “[t]he issues of failure of consideration for the settlement agreement, couched as ‘family discord’ or otherwise, were not raised or argued before the appellate court.” The trial court also concluded that “[a]ny purported issues involving the interpretation and/or enforceability of die family setdement agreement of Februaiy 15,1972, are foreclosed by res judicata and/ or collateral estoppel by virtue of the prior litigation.”
“The doctrine of res judicata has two aspects: claim preclusion and issue preclusion.” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
Issue preclusion, sometimes referred to as collateral estoppel, prevents relitigation, in a different claim, of issues conclusively determined in a prior action. In order for issue preclusion to be available, the following must be shown:
“(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the 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.” 242 Kan. at 690.
We conclude that Adley and Don are not barred by the doctrine of issue preclusion from raising the issue of failure of consideration. The fact is, this issue was not litigated and was not determined in the prior lawsuits between the parties. Since the argument was not litigated, issue preclusion cannot apply.
Claim preclusion, or, as it is commonly known, res judicata, prevents relitigation of a cause of action that was finally adjudicated. “An issue is res judicata when four conditions concur: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.” 242 Kan. at 690.
We have already established that the claim of failure of consideration was not litigated in the prior litigation. The question, then, is whether the appellants had the opportunity to litigate this issue in the prior litigation between the parties.
Elsie did not raise lack of consideration by Cylus in her defense to Cylus and Shirley’s lawsuit for Albert’s breach of the settlement agreement. Johnson I, 7 Kan. App. 2d at 541. Lack of consideration in a contract is an affirmative defense which must be raised, or it is waived. K.S.A. 1998 Supp. 60-208(c). We conclude that Elsie’s failure to raise this defense in the earlier action bars the defense of lack of consideration in this case.
In our opinion, the only issue left to be determined is whether Adley and Don are entitled to raise the issue of Cylus’ failure to perform the consideration.
The record is insufficient to enable us to determine this issue. We do not have the dates upon which Cylus allegedly breached the settlement agreement or how those breaches took place. If the breaches occurred after Albert’s death, then claim preclusion would not apply. If the breaches occurred prior to Albert’s death, it may apply.
Accordingly, we remand this issue to the trial court and direct the court to determine: (1) the precise dates on which it is claimed that Cylus breached the settlement agreement, (2) the exact nature of those claimed breaches, (3) whether Albert and/or Elsie acquiesced in the claimed breaches by Cylus, (4) whether those breaches are sufficient to support a claim of failure for consideration, (5) whether the doctrine of res judicata applies when consideration is given to the dates on which the alleged breaches took place.
Finally, Cylus and Shirley seek an award of attorney fees. We are unable to accommodate them. The trial court’s journal entry reserved the decision to determine attorney fees. The final order was not a part of the record on appeal. In addition, Cylus and Shirley do not cite in their facts any documentation for this issue, nor is the transcript of a hearing regarding attorney fees a part of the record. Assertions in an appellate brief are not sufficient to satisfy inadequacies in a record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). We assume Cylus and Shirley have an adequate remedy with the trial court, as nothing in the record has indicated to us that the trial court determined the issue which it reserved. Accordingly, we deny the request for attorney fees.
We affirm the decision of the trial court holding that the trust involved in this action violates the settlement agreement of the parties. We reverse and remand on the issue of claim preclusion and direct the trial court to determine those facts as set out earlier in this opinion.
Affirmed in part, reversed in part, and remanded. | [
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Bukaty, J.:
William A. Foy appeals a district court’s order that denied his application for habeas corpus relief pursuant to K.S.A. 1998 Supp. 60-1501. Foy alleged that he was being unlawfully detained at the Norton Correctional Facility after the Kansas Parole Board (Board) revoked his parole.
The relevant and uncontroverted facts begin on October 4,1995, when the Board placed Foy on conditional release. The Board then revoked that conditional release on March 29, 1996. Its order further indicated “Pass to March 1997 with rec. mental health counseling.” Foy again appeared before the Board 11 months later. The Board then continued Foy s parole hearing to May 1997 pending review of a clinical services report and evaluation from Lamed State Hospital. In May 1997, the Board again met with Foy and passed him until March 1998.
Foy then filed his petition with the district court alleging in essence the foregoing facts. The district court dismissed the petition without ordering a response from the Department of Corrections or the Board. The court found that the Board’s decision was sufficient and specific and that Foy’s petition otherwise failed to state a claim upon which relief could be granted. Foy then timely appealed. We affirm.
Upon review of a district court’s order dismissing a petition for failure to state a claim upon which relief can be granted, appellate courts are required to accept the facts alleged by the plaintiff as true. The court must determine whether the alleged facts and all their inferences state a claim, not only on the theories which the plaintiff espouses, but on any possible theory. Smith v. State, 264 Kan. 348, 353, 955 P.2d 1293 (1998).
Foy contends that the district court erred in dismissing his petition because the factual allegations of that petition show that the Board exceeded its statutory authority by passing him for parole in May 1997. He argues that the revocation order of March 1996, in combination with K.S.A. 75-5217(b), required that he be paroled in 1997. He cites Urban v. Henley, 654 F. Supp. 870 (D. Kan. 1987), for the principle that the Board has no authority to act after it enters the initial order determining what action to take with a parole violator. Therefore, according to his argument, since the initial order determined that parole should be revoked and the matter passed to March 1997, the Board was required to parole him at that time.
Foy further argues that the Board improperly relied upon 22-3717 in denying him reparóle. He specifically urges that this statute provides the Board with authority only over inmates who have never been paroled. According to Foy, once an inmate has been paroled, the Board may then act only as provided for in K.S.A. 75-5217, and that statute does not provide for the “passing” of an inmate to a future date as does K.S.A. 1996 Supp. 22-3717.
These arguments raise a question of statutory interpretation, over which we have unlimited review. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
The district court found that the Board had authority to parole or pass Foy as it saw fit in May 1997. If the foregoing statutory provisions provide the Board with such authority, then clearly the facts as stated in the petition fail to state a claim upon which relief can be granted.
Foy’s reliance on Urban is misplaced. There, a prisoner brought a civil rights claim against the Board’s predecessor, the Kansas Adult Authority (KAA). The KAA had revoked Urban’s parole, and the revocation order specifically required him to serve his sentence until his conditional release date. Thereafter, the KAA, sua sponte, ordered the forfeiture of his good time credits for subsequent institutional misconduct and extended the time he had to serve to his maximum term. The state court, in a habeas corpus action brought by Urban, ruled that the KAA was without statutory authority to order the forfeiture of Urban’s good time credits after it had established a specific release date. It then ordered Urban’s release. When Urban later brought his civil rights action, the United States District Court agreed. It specifically found that after the KAA revoked parole and ordered Urban to serve to his conditional release date, it had no authority under K.S.A. 75-5217(b) to amend that order sua sponte.
Foy’s situation is far different. The Board here revoked Foy’s parole but made no determination when Foy would be released. The Board instead directed that Foy would be reconsidered for parole in March 1997. In this case, the effect of the Board’s order was that Foy’s parole was revoked and that he again became an inmate eligible for parole. As such, 22-3717 provides authority for the Board to issue orders concerning his parole. That would include the discretion of the Board to grant Foy parole in March 1997 or pass him. The holding in Urban only applies to facts where the Board has revoked a parole and set a date for release. In those situations, the Board may not sua sponte amend that release order.
To adopt the strict construction of the statute urged by Foy would require that in all cases where parole is revoked and a new release date is not specifically set, an inmate would have to serve to his or her conditional release date, without the opportunity of reparole. This construction would also remove the incentive for such an inmate to participate in rehabilitative programs the Board deems beneficial.
K.S.A. 75-52l7(b) provides that the Board “may continue or revoke the parole or conditional release, or enter such other order as the board may see fit.” (Emphasis added.) We believe that the grant of authority in the statutory language is broad enough to allow the Board to issue an order revoking parole and establishing either a definitive date for another parole or a date for reconsideration of parole eligibility. Therefore, Foy has no valid claim that the Board exceeded its authority in passing him for parole until March 1998. Accordingly, the district court correctly determined that Foy s petition failed to state a claim upon which relief could be granted.
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Becker, J.:
Michael Paul Perez appeals his conviction of one count of rape. On appeal, Perez argues that the trial court erred in excluding evidence of the complaining witness’ sexual conduct under the rape shield statute. Perez additionally contends that the trial court abused its discretion by denying his motion to sequester witnesses at trial. We find that the trial court erred in excluding evidence of the complaining witness’ sexual activities under the rape shield statute and remand for a new trial.
On the evening and morning of November 22 and 23,1994, C.I. attended a party where she reportedly had sex with two men, P.O. and D.P., in separate encounters. Perez witnessed C.I. having sex with the men. Upon leaving the party, C.I. rode to the country with Perez and Robert Allen. C.I. claims that while the three were in the vehicle, Perez forced her to have sexual intercourse. Perez, on the other hand, contends that the couple engaged in consensual mutual fondling but did not have sex.
C.I., a 16-year-old who had been reported to the police as a runaway, returned home on November 23 and told her mother that Perez had raped her. C.I.’s mother took her to the hospital where a rape kit was performed. During the exam, C.I. denied having consensual coitus in the past 72 hours. C.I. reportedly answered the question untruthfully because her mother was in the room.
Perez was charged with one count of rape and one count of aggravated kidnaping. During the jury trial, Perez proffered evidence of C.I.’s sexual activities during the evening in question. Specifically, the evidence Perez sought to introduce were affidavits of P.O. and D.P. stating they had sex with C.I. at the party. In addition, Perez proffered C.I.’s testimony, made outside the presence of the jury, that she had sex with the two men at the party and the circumstances of the encounters. The trial court ruled that this evidence was irrelevant and inadmissible under the rape shield statute. The jury returned a verdict of guilty on the rape charge but acquitted Perez of aggravated kidnapping.
Perez’ first argument on appeal is that the trial court erred in excluding evidence of C.I.’s sexual activities with other men on the evening in question. Specifically, Perez argues that the evidence should not have been excluded under the rape shield statute because it is relevant to the issues of consent and credibility.
Decisions regarding the relevancy of evidence rests in the sound discretion of the trial court. State v. Lavery, 19 Kan. App. 2d 673, Syl. ¶ 2, 877 P.2d 443, rev. denied 253 Kan. 862 (1993). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The standard of review of a trial court’s ruling excluding evidence under the rape shield statute, K.S.A. 21-3525, is whether the trial court abused its discretion. State v. Zuniga, 237 Kan. 788, Syl. ¶ 4, 703 P.2d 805 (1985).
In a prosecution for rape, evidence of the complaining witness’ previous sexual conduct is generally not admissible. K.S.A. 21-3525(b). The rape shield statute, however, does not preclude the admission of evidence that another person may have been guilty of the alleged sexual abuse or relevant evidence that impeaches the credibility and testimony of a witness. See K.S.A. 21-3525(b); State v. Arrington, 251 Kan. 747, 750, 840 P.2d 477 (1992). Moreover, the rape shield statute allows evidence of an alleged rape victim’s prior sexual conduct if such evidence is relevant to any fact at issue, such as identity of the rapist, consent of the victim, and whether a defendant actually had intercourse with the victim. State v. Bressman, 236 Kan. 296, 300, 689 P.2d 901 (1984) (citing In re Nichols, 2 Kan. App. 2d 431, 434, 580 P.2d 1370, rev. denied 225 Kan. 844 [1978]).
Relevancy of the Proffered Evidence
Perez argues that evidence of C.I.’s sexual activities on the evening in question is relevant because it goes to whether C.I. consented to the sexual activities in the car and whether her version of the incident is credible. The State, on the other hand, insists that evidence of C.I.’s sexual behavior at the party is not relevant to the issue of consent because Perez maintains that he did not have sexual intercourse with C.I. Perez does admit, however, that he and C.I. engaged in sexual fondling. That sexual touching may have been the basis of the rape conviction since the trial court instructed the jury that Perez could have raped C.I. with his finger. However, in contradiction to State v. Timley, 255 Kan. 286, Syl. ¶ 2, 875 P.2d 242 (1994), the trial court’ did not instruct the jury that its verdict must be unanimous as to which multiple act, penetration by finger or by penis, constituted the rape. See State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999). As a result, Perez’ contention that he did not have sex with C.I. is not inconsistent with his argument that evidence of C.I.’s sexual conduct at the party is relevant to the issue of consent.
When addressing the relevancy of prior sexual conduct on the issue of consent, the inquiry must be whether the victim’s consent to sexual activity in the past, regardless of other factual situations, makes it more probable or less probable that the victim consented to sexual activity on this occasion. See State v. Hudlow, 99 Wash. 2d 1, 10, 659 P.2d 514 (1983). In addition, a complaining witness’ prior sexual behavior is relevant to credibility when the witness’ past sexual activities are so factually similar to the defendant’s version of the incident in question as to diminish his or her credibility. See 99 Wash. 2d at 10-11.
Moreover, it has been suggested that to determine whether the prior sexual conduct of a complaining witness is relevant, the following factors should be considered:
“(1) evidence of prior sexual conduct by complainant with defendant; (2) to rebut medical evidence on proof of origin of semen, venereal disease or pregnancy; (3) distinctive sexual patterns so closely resembling defendant’s version of the alleged encounter as to tend to prove consent on the questioned occasion; (4) evidence of prior sexual conduct by complainant with others, known to the defendant, tending to prove he believed the complainant was consenting to his sexual advances; (5) evidence of sexual conduct tending to prove complainant’s motive to fabricate the charge; (6) evidence tending to rebut proof by the prosecution regarding die complainant’s past sexual conduct; and (7) evidence of sexual conduct offered as the basis of expert psychological or psychiatric opinion that die complainant fantasized or invented the acts charged.” Hudlow, 99 Wash. 2d at 11 (citing Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 98-99 [1977]).
This court holds that in addition to the aforementioned factors, the proximity in time between the prior sexual conduct and the charged act of the defendant should also be considered when addressing whether prior sexual conduct of a complaining witness is relevant. In the instant case, the proximity factor is satisfied in that it was merely an hour or two between C.I.’s sexual intercourse with others at the party and the incident in the car with Perez. Moreover, several of the above factors are also present in this case.
Importantly, this is not a situation where a defendant is attempting to dredge up the complaining witness’ entire sexual history to embarrass or humiliate her. Nor is this a case where a defendant is proffering evidence of the complaining witness’ sexual behavior months or weeks before the alleged rape. Perez is merely arguing that evidence of the isolated sexual incidents engaged in by C.I. only hours before the alleged rape is relevant to show that C.I.’s version of the events in the car is not credible. The close proximity in time between the incidents at the party and in the vehicle indicate that C.I.’s sexual behavior at the party is relevant to the issue of why she would consent to sexual foreplay with Perez while Allen was in the car.
C.I.’s sexual behavior on the evening in question followed a distinctive pattern which nearly mirrors Perez’ version of the incident in the car. At the party, C.I. had sex with two men where Perez and others could observe the activities. Later, in the early morning, Perez contends that the couple attempted to have intercourse in the back seat while Allen drove the vehicle. The incidents are strikingly similar because they demonstrate C.I.’s unusual willingness to engage in intercourse while other individuals observed.
Additionally, evidence that C.I. had sex with two men at the party is also relevant to the issue of credibility because Perez proffered C.I.’s testimony that she was unsure whether D.P., a man she reportedly had sex with at the party, had physically penetrated her. Subsequently, however, C.I. testified that D.P. did penetrate her with his penis. Such an inconsistency demonstrates C.I.’s confusion as to whether a man had penetrated her during sexual activities. As a result, the excluded evidence is relevant as to the credibility of C.I.’s claim that Perez sexually penetrated her and supports Perez’ contention that he did not penetrate her. Moreover, because the trial court instructed the jury on the lesser included offense of attempted rape, the excluded evidence is relevant to show that, at most, Perez was guilty of attempted rape.
Because numerous factual similarities surround C.I.’s sexual behavior at the party and Perez’ version of the events occurring in the vehicle, evidence of C.I.’s sexual activities that evening is absolutely relevant to the issues of credibility and consent. In this case, it is imperative that a jury determining Perez’ guilt or innocence learn the entire rendition of the evening’s events in order to deliver a sound verdict. To exclude evidence of C.I.’s sexual activities at the party would be to deny the jury access to critical facts surrounding the allegation of rape.
In a case where no physical evidence connected Perez with the alleged rape, the credibility of the complaining witness was a controlling aspect. Perez’ conviction hinged on C.I.’s testimony. Evidently the jurors had trouble with part of C.I.’s testimony because they did not convict Perez on the aggravated kidnapping charge. Had the trial court not precluded evidence of C.I.’s sexual activities at the party, the jury could have more accurately assessed C.I.’s credibility. As a result, we find that the trial court erred in preventing Perez from presenting relevant evidence bearing on C.I.’s credibility and consent.
Defendant’s Right to Substantial Justice
Perez further argues that the trial court infringed upon his constitutional rights by excluding evidence relating to C.I.’s sexual activities at the party. Specifically, Perez contends that exclusion of C.I.’s prior sexual activities under the rape shield statute must yield to his constitutional right to present a defense.
“A defendant is entitled to present the theory of his defense. The exclusion of evidence, which is an integral part of the theory of defense, violates the defendant’s fundamental right to a fair trial.” State v. Bradley, 223 Kan. 710, Syl. ¶ 2,576 P.2d 647 (1978). The Bradley court went on to note that “[it was] fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict.” 223 Kan. at 714. The Bradley court concluded that “[t]he right to present one’s theory of defense is absolute.” 223 Kan. at 714.
In State v. Humphrey, 252 Kan. 6, Syl. ¶ 3, 845 P.2d 592 (1992), the court noted: “It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her defense to the charge so the jury may properly weigh the evidence and reach its verdict.” The court further recognized in Humphrey that:
“The Confrontation Clause of the Sixth Amendment affords an accused the right to cross-examination. The United States Supreme Court has ‘recognized that tlie exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974).” 252 Kan. at 17.
In the instant case, evidence bearing on C.I.’s credibility was an integral part of Perez’ defense. When the trial court stripped Perez of the right to present evidence of C.I.’s sexual activities at the party, it slammed the door on Perez’ strongest defense argument: C.I. willingly participated in any sexual activities taking place in the vehicle. The trial court thwarted Perez’ attempt to demonstrate why this young girl would agree to go to the country with two men and engage in sexual activities with Perez despite Allen’s presence in the vehicle. It would be difficult for a jury deciding this case to make the leap that C.I. would consent to sex with Perez when Allen was present without hearing vital defense evidence that C.I. had consented to similar sex acts only hours before. As a result, the trial court prevented Perez from painting a complete and accurate picture for the jury of the events taking place that morning.
After the trial court gutted Perez’ defense theoiy by excluding evidence of C.I.’s sexual conduct at the party, Perez was left to argue that C.I. had a strong motivation to fabricate the rape allegation and that no physical evidence connected him with a rape. Then, the trial court crippled Perez’ argument that C.I. was motivated to fabricate the rape allegation by preventing him from completely explaining C.I.’s motivation to he.
“A defendant’s assertion of motive or bias should not automatically strip the complainant of the protection of rape shield legislation. If the evidence is of insufficient probative value, it should be excluded. The Supreme Court has made it clear, however, that as a general rule, ‘cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand ... is a proper and important function’ of the Sixth Amendment rights to confront one’s accusers and to present a defense. These rights guarantee, not merely the opportunity ‘to ask [a witness] whether [s]he is biased,’ but also the right ‘to make a record from which to argue why [she] might have been biased’ or motivated to testify falsely.” Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior, 44 Cath. U.L. Rev. 709, 750 (1995).
Several cases from other jurisdictions have admitted evidence of the complainant’s prior sexual conduct when the evidence sup ported the defendant’s theoiy that such provided the complaining witness with a motive to falsify the charges. See Lewis v. State, 591 So. 2d 922, 925-26 (1991) (finding that exclusion of evidence that complainant fabricated rape charges to hide her sexual relationship with her boyfriend from her mother violated the defendant’s constitutional right to confront his accuser and develop his defense through reasonable cross-examination); State v. DeLawder, 28 Md. App. 212, 226-27, 344 A.2d 446 (1975) (finding that the defendant’s right to confrontation required the admission of evidence supporting the defense theory that the complainant accused him of rape because she was afraid to tell her mother that she engaged in consensual sex with other men and was pregnant); Commonwealth v. Stockhammer, 409 Mass. 867, 876-80, 570 N.E.2d 992 (1991) (finding that evidence of whether complainant’s parents knew of her sexual activity prior to the rape was relevant to the defendant’s theory that she fabricated the charges to prevent her father from learning the truth about her consensual sexual relationship).
In the instant case, it can be inferred that C.I. had a strong motivation to fabricate the rape charge. C.I. was a 16-year-old girl who had not returned home for two nights. The ultimate explanation for her absence and disheveled appearance was an allegation of rape. Although the jury heard evidence that C.I. was away from home for two nights, the trial court erred in refusing Perez the opportunity to present the whole picture as to why C.I. might be motivated to fabricate the rape allegation. The allegation prevented her mother from immediately learning of her behavior at the party and provided an explanation for the semen collected from the rape kit.
Moreover, the trial court hindered Perez’ defense that no physical evidence connected him with a rape by precluding Perez from presenting evidence that would explain the presence of semen found during C.I.’s rape examination. The State’s presentation of the evidence suggested that only Perez had sexual intercourse with C.I. and was the only possible donor of the semen recovered from the rape kit. The presence of semen provided credibility to C.I.’s stoiy that Perez raped her. The trial court undercut Perez’ defense that no physical evidence connected him with a rape by not letting him explain the existence of other semen donors. Perez was allowed to present DNA evidence that indicated that if C.I. had intercourse with only one man within the 72 hours prior to the alleged rape, then Perez was excluded as a donor. However, the DNA evidence also indicated that if C.I. had intercourse with more than one man within the 72 hours preceding the alleged rape, then Perez could not be excluded as a donor. As a result, the jury was left to hypothetically consider that someone other than Perez had sex with C.I., but Perez was not allowed to tell the jury who.
In summary, the significance of the excluded evidence is apparent through a reading of the record. For example, C.I.’s testimony jumps from a description of the drinking and marijuana smoking taking place at the party to her leaving with the men and a description of the alleged rape. The jury is not provided with a full explanation as to how this young girl ended up in the country with two men. If Perez would have been permitted to present evidence as to the events leading up to the incident in question, such would have significantly aided his defense and allowed the jury to properly weigh the evidence. The exclusion violated Perez’ right to a fair trial. As a result, we reverse and remand for a new trial.
Consideration of KS.A. 60-447
It is important to note that we have considered the possible application of K.S.A. 60-447 to the instant case. By consistently affirming trial court decisions excluding evidence of a victim’s prior sexual activities under the rape shield statute, Kansas appellate courts have succeeded in avoiding the delicate issue of whether K.S.A. 60-447 would operate to exclude such evidence as specific instances of conduct. K.S.A. 60-447 provides:
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible.”
Accordingly, K.S.A 60-447 is the general rule barring evidence of specific instances of conduct.
Case law exceptions, however, to that general rule have been created. For example, State v. Bradley, 223 Kan. at 713-14, held that a criminal defendant asserting self-defense may present relevant evidence, including evidence of specific instances of conduct, regarding the deceased’s motive and intent for attacking the defendant.
Another exception to the general rule barring evidence of specific instances of conduct was carved out by the Kansas Legislature when it enacted the rape shield statute. That statute, which only applies to prosecutions for specified sex crimes, provides:
“[I]n any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in die presence of the jury, except under the following conditions: .... [I]f the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” (Emphasis added.) K.S.A. 21-3525(b).
The Kansas rape shield statute was clearly intended as a narrow exception amending the general rule prohibiting evidence of specific instances of conduct. The Kansas Legislature obviously had K.S.A. 60-447 in mind when drafting the rape shield legislation in that the rape shield statute originally appeared at K.S.A. 60-447a, immediately following K.S.A. 60-447. The sequential placement of the statutes demonstrates the legislature’s awareness of the restrictions delineated in K.S.A. 60-447 and the legislative intent to carve out an exception to the general rule barring evidence of specific instances of conduct.
Furthermore, the Kansas Legislature explicitly stated in the rape shield statute that “previous sexual conduct of the complaining witness” may be admitted if relevant. (Emphasis added.) K.S.A. 21-3525(b). Use of the term “conduct” in the rape shield statute demonstrates the legislature’s unequivocal intent to amend the general rule prohibiting evidence of specific instances of conduct. As a result, K.S.A. 60-447 does not operate to bar relevant evidence as to C.I.’s sexual activities at the party, because the safeguards set forth in the rape shield statute are satisfied.
Sequestration of Witnesses at Trial
Perez’ second argument on appeal is that the trial court abused its discretion in denying his motion to sequester the witnesses at trial. Perez contends that the trial court’s decision to not sequester the witnesses was arbitrary because the trial court did not provide reasons for its ruling.
The decision to sequester witnesses during a criminal trial is discretionary with the trial court. State v. Ralls, 213 Kan. 249, Syl. ¶ 6, 515 P.2d 1205 (1973). “Judicial discretion must ... be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995).
Perez contends that the trial court’s refusal to sequester the witnesses, without providing any reasons to justify the decision, was arbitrary and, thus, an abuse of discretion. According to Perez, sequestration of the witnesses furthers the truth-finding process because if witnesses are separated, they cannot alter their testimony to conform with the testimony of previous witnesses. Perez contends that sequestration was particularly important in this case because the events giving rise to the charges against him occurred nearly 3 years prior to trial. Thus, to secure the integrity of the truth-finding process, Perez argues that sequestration was necessary.
The State, however, contends that the trial court did not abuse its discretion in refusing to sequester the witnesses. According to the State, Perez fails to show that the trial court acted arbitrarily, fancifully, or unreasonably. Further, the State points out that Perez does not argue that any of the witnesses changed their testimony or gave testimony which was inconsistent with their prior explanations of the events in question.
“One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion.” State v. Davis, 256 Kan. 1,26,883 P.2d 735 (1994). Perez has not met this burden. Perez does not argue that any of the witnesses changed their testimony. On appeal, Perez argues that the trial court erred because the events giving rise to the charges occurred 3 years before his trial. However, these considerations do not mean that the trial court abused its discretion in refusing to sequester the witnesses.. These concerns could have been brought to the jury’s attention through cross-examination. See State v. Alderson, 260 Kan. 445, 463-64, 922 P.2d 435 (1996). As a result, the trial court’s ruling was not arbitrary or unreasonable, and the trial court did not abuse its discretion in refusing to sequester the witnesses.
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KnüDSON, J.:
The State brings this interlocutory appeal from the district court’s order suppressing evidence obtained during a warrantless search of the defendant’s residence. We have jurisdiction to hear this appeal under K.S.A. 22-3603.
We reverse and remand because: (1) the police had probable cause to search with exigent circumstances that obviated the need to first obtain a search warrant; (2) alternatively, under an independent source analysis, the exclusionary rule should not be invoked.
The pertinent facts are as follows. At approximately 9 a.m. on October 25, 1998, the dispatcher at the Jefferson County Sheriff s Office received a 911 call of a possible sexual assault in the vicinity of Lake Perry. Deputy Boyer was requested to investigate. Boyer was assisted by Deputy Welch and Conservation Officer Purvis. Boyer and Purvis spoke to the alleged victim, who appeared to have been badly beaten. She was partially clothed, wearing only a jacket and jeans, both turned inside out. She told the officers that she had been kidnapped outside a bar in Lawrence, Kansas, the previous evening. Two men driving a small vehicle abducted her. She was forced into the vehicle and during the ride was beaten. The men threatened to kill her. She believed she lost consciousness. She woke the next morning in an unfamiliar house at Lake Perry. She had no idea where she was at that time. She ran out the front door of the house, leaving it unlocked. When fleeing, she did notice a man passed out in a bedroom of the house. She was able to obtain assistance at a nearby home and place the 911 call. She was unable to state with certainty whether she had been raped, but the officers realized rape was a strong possibility.
Welch and Purvis went to the home described by the victim. The officers noted a pickup truck on the premises consistent with what the victim had related. Purvis went to the back door, and Welch went to the front door. Purvis knocked on the back door that was locked, but there was no response. Welch did not testify as to whether he knocked at the front door, which was also locked. The officers believed there was probable cause that serious, violent crimes had occurred and to prevent the destruction of evidence and identify and apprehend the perpetrators, immediate entry into the house was necessary.
Officer Purvis went through an open window and opened the door for Welch. The officers searched the house for suspects. While searching, the officers saw in plain view drugs and para phernalia at various locations within the house. After determining no one was in the house, the officers then sought and obtained a search warrant for the residence. Thereafter, the warrant was executed and evidence seized relating to drug violations and the sexual assault. Weas, the resident of the house, was charged with various drug violations. It is not clear whether Weas has been charged with any crimes against persons in Jefferson or Douglas Counties.
After hearing Weas’ motion to suppress, the district court suppressed all of the physical evidence seized from the house. The trial judge reasoned that the initial search of Weas’ residence without a warrant was unlawful and that the evidence subsequently seized under the search warrant was tainted by the initial illegality. The State contends the district court erred, contending: (1) exigent circumstances justified immediate entry into the house without a warrant, or (2) the independent source rule is applicable, or (3) the officers acted in good faith in seizing the evidence under a search warrant issued by the magistrate.
The controlling facts are undisputed; the question of whether to suppress becomes a question of law over which we exercise unlimited review. See State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
THE INITIAL SEARCH
Under the Fourth Amendment of the United States Constitution, searches conducted without warrants are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979). In this case, the State relies upon the exigent circumstances exception. This exception allows a warrantless search where there is probable cause for the search and exigent circumstances justify an immediate search. See 225 Kan. at 769. In our opinion, the uncontroverted facts of this case gave the officers persuasive evidence of probable cause to believe the victim was kidnapped, beaten, and sexually violated.
The question is whether exigent circumstances existed. In making this determination, the Platten court relied upon the nonexclu sive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978):
“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe diat the suspect is in the premises; (5) a likelihood that die suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry. It is also recognized diat die possible loss or destruction of evidence is a factor to be considered. [Citations omitted.]” 225 Kan. at 770.
That there were no material facts in dispute is apparent from the trial court’s journal entry granting suppression. The trial court’s central conclusions of law were:
“5. That under the facts of this case diere was not exigent circumstance for die entry into the residence.
“6. That under the facts of this case the fruit of the poisonous tree doctrine extends die scope of the exclusionary rule to bar the admission of the drug substances and drug paraphernalia evidence.”
The trial court’s reasoning can be determined from bench comments made at the conclusion of the hearing. Those comments reinforce our belief that there were no disputed facts upon which the ultimate legal issue was decided. The trial court concluded there were no exigent circumstances to support a warrantless entry because the officers could have secured the perimeter of the residence and attempted to secure a search warrant; additionally, destruction of incriminating evidence by someone within the residence was unlikely.
We do not agree with the trial court’s reasoning. Under the nonexclusive criteria noted in Reed, the action taken by the officers was objectively reasonable. The crime of kidnapping is a severity level 3 person felony with a presumptive sentence that includes incarceration. In addition, there is evidence the perpetrators threatened to kill the victim and did beat her. Although it is true that the victim did not relate to the officers that her attackers were armed, the serious nature of the alleged crimes would give rise to “an ever-present potential for exploding into violent confrontation.” People v. Escudero, 23 Cal. 3d 800, 811, 153 Cal. Rptr. 825, 592 P.2d 312 (1979). The officers had ample evidence of probable cause to believe one or more individuals who had committed these violent crimes were in the residence and would be alerted to detection and apprehension as a result of the victim’s escape. Finally, the entry into the residence was during daylight hours and made peaceably. Another important factor noted in Flatten is whether an immediate entry is necessary so that a perpetrator can be disabled from destroying or concealing evidence. In this case, the officers knew the perpetrators very probably were alerted by the victim’s escape and given the opportunity could destroy physical and trace evidence. It is not unreasonable for the officers to believe hair, blood, and other bodily fluids could be washed off the body easily. We are convinced the officers rightfully were concerned about the potential for destruction of evidence if there was a delay to secure a search warrant.
We further note protection of evidence was not the only reason given for entering the house. The officers testified they also entered the house to identify and apprehend the suspects. The officers certainly had reason to believe one or more suspects were in the residence. The district court speculated no harm would have occurred had the officers secured the house to prevent the suspects from fleeing and waited for a search warrant. Again, we do not agree. Delay in entry may have permitted the perpetrators to forcibly resist apprehension. Thus, delay would increase the risk of harm not only to the police officers, but to the perpetrators or other persons within the residence. We simply cannot ignore that the police were in the middle of an ongoing investigation of serious, violent crimes that had just occurred; only with the benefit of subsequent events and hindsight could we know that a stakeout would have sufficed. What if there had been one or more persons in the residence that committed these alleged heinous crimes? That was the picture confronting the police officers when they had to decide if exigent circumstances supported a warrantless entry. For the reasons we have stated, their decision to make an immediate entry was not unreasonable.
INDEPENDENT SOURCE TEST
The State also argues the evidence should not be suppressed under the independent source test. See Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (holding the fruit of the poisonous tree doctrine not applicable to evidence which the police can trace to an independent and lawful source). See also State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 4, 784 P.2d 381 (1989), which holds:
“Evidence obtained unlawfully in violation of a defendant’s constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of die evidence that die unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.”
Assuming the application and affidavit for the search warrant contained information both lawfully and unlawfully obtained, the question remains whether the lawfully obtained information by itself supports probable cause that would have justified issuance of the search warrant by the magistrate.
In the affidavit in support of the application for issuance of a search warrant the affiant, a Jefferson County Sheriff s deputy, alleged aggravated kidnapping and aggravated sexual battery may have been committed. The deputy included in the items to be seized “[cjlothing, bedding, fibers, hairs and other trace evidence of the sexual crimes.” This was followed by a statement of probable cause that included the following:
“A. On October 25, 1998, [the victim] reported she had been kidnapped and sexually assaulted. During the investigation Affiant obtained the following information from Jefferson County Sheriff s Deputy Jason Boyer.
1. Deputy Boyer advised me that he had the victim in his car and that she told him that she had come [from] the residence and premises to be searched.
2. She had been abducted from the parking lot of Johnny’s Tavern, 401 N. Second, Lawrence, Kansas the night before.
3. Deputy Boyer stated that the victim did not know tire names of her abductors.
4. Deputy Boyer said he was told that the victim had scene [sic] one of the subjects was passed out on a couch in one of the bedrooms when she left.
5. Deputy Boyer stated that he observed that the victim was not wearing a shirt, bra and had stated that she no longer had her underwear.
6. Deputy Boyer stated that the victim told him that she woke up in a strange house and found her jacket and pants on her but inside out.
“B. At that point, Affiant spoke with the victim and obtained the following information:
1. The victim left the door unlocked when she ran out.
2.She came out of the front door.
“G. The following information from Detective Mike Pattrick with the Lawrence Police Department!!]
1. During tlie evening of October 24, 1998, the victim was abducted from the parking lot of Johnny’s Tavern, 401 N. Second, Lawrence, Kansas.
2. The victim was beaten and under die influence of alcohol at the time. She was going in and out of consciousness while being transported.
3. The victim was taken to a location and assaulted in a room consistent with one of the bedrooms in the residence and premises to be searched.
4. She was forced to remove her clodiing.
5. Her assailants dien fondled her breasts and her buttocks.
6. During this time, the victim continued to slip in and out of consciousness.
7. She put her pants back [on] and jacket back on.
8. She was driven around, lost consciousness and woke up diis morning [in] another bedroom of the residence and premises to be searched.”
We conclude beyond a reasonable doubt that the magistrate would have issued a search warrant for the residence based upon the above lawfully obtained information possessed by the police before the warrantless entry into the residence. Consequently, we can state with reasonable certainty that the drugs and contraband in the residence would have been seized under the plain view exception. Accordingly, the exclusionary rule should not have been applied by the trial court. The State should not have been put in a worse position than it would have been in but for the alleged illegal search. See Nix v. Williams, 467 U.S. 431, 443, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984).
GOOD FAITH EXCEPTION
The State also argues if the entry was unlawful, the good faith exception in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984), is applicable and precludes application of the exclusionary rule. We do not agree. The good faith exception saves a warrant ultimately found to be unsupported by probable cause but believed by the executing officers to be valid. Here, the admissibility of the evidence depended not on the good faith of the seizing officers but on the source of information used to obtain the search warrant.
In summary, we conclude that exigent circumstances existed permitting a warrantless entry into Weas’ residence. Alternatively, even if we assume an initial unlawful entry, the factual information in the affidavit presented in support of the search warrant was sufficient under an independent source test to preclude strict application of the exclusionary rule. The trial court’s order suppressing evidence seized from the residence is set aside.
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Greene, J.:
Dr. Robyn Hartvickson, a/k/a Robyn Harris, M.D., appeals a verdict against her in a medical malpractice action, principally arguing that the district court erred in giving the jury a so-called “hammer instruction” after a deadlock was perceived, and in denying her motion for a new trial based upon both circumstantial and direct evidence of an apparent compromise verdict. She also claims other errors were committed during the trial, but we do not reach these issues because we agree that her motion for new trial based upon jury misconduct should have been granted. We reverse the district court and remand for a new trial.
Factual and Procedural Background
The widow and heirs of James Jeffeiy Duncan (Duncan) brought this medical malpractice action against Hartvickson after Duncan died from a large pulmonary embolism. The essential claim was that Hartvickson negligently diagnosed Duncan with pneumonia and failed to note and treat the embolism when Duncan presented himself to her for treatment on the day prior to his death.
At trial, plaintiffs’ experts supported a departure from the standard of care in failing to explore the possibility of pulmonary embolism based on Duncan’s symptoms. Hartvickson and her experts asserted that she met the standard of care, suggesting that the embolism was very recent in its formation and likely not evident when Hartvickson examined Duncan, thus verifying her diagnosis of pneumonia. The parties agree that liability of Hartvickson was hotly contested.
After approximately 2Vz days of deliberations, the jury asked for the court’s direction because its “last three votes [had] not changed” and there was no “majority either way.” Over Hartvickson’s objection, the trial court then gave the jury what is commonly known as the deadlocked jury instruction under PIK Civ. 3d 181.20 and dismissed the jury for the evening. The following morning, the juiy returned its verdict finding Hartvickson hable and awarding economic damages only totaling $982,143. Despite plaintiffs’ extensive evidence of noneconomic loss, the jury awarded no such damages in its verdict.
After one of the jurors later contacted Hartvickson’s counsel and suggested that the jury had reached a compromise verdict, Hartvickson timely filed a motion for new trial based on jury misconduct or, alternatively, for a recall of the jury. Following an affidavit and five testimony from the single juror only, the trial court denied Hartvickson’s motion. Hartvickson appeals.
Standard of Review
With regard to Hartvickson’s claim of error based on the trial court’s giving of the deadlocked jury instruction, we review the instructions to determine whether they are substantially correct statements of law and whether the jury could reasonably have been misled by them. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Even if an isolated instruction is erroneous in some way, the instructions are not reversible error if they properly and fairly state the law as applied to the facts when considered as a whole. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
With regard to Hartvickson’s claim of jury misconduct, it is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision will not be disturbed on appeal except upon a showing of abuse of that discretion. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the juiy constituted misconduct and (2) the misconduct substantially prejudiced the defendant’s right to a fair trial. State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006).
Did the District Court Err in Giving an Allen-type Instruction After the Jury Suggested Its Deadlock?
After deliberating for more than 2 days, the jury sent a note to the trial court asking for directions. The note stated: “We have deliberated for two and one-half days. Our last three votes have not changed, and we do not have a majority either way. We seek the court’s direction.”
The court then consulted with counsel and suggested there were several options for response to the jury note, including to “bring them in, read them the hammer instruction, or else known as [PIK Civ. 3d 181.20], the deadlocked jury instruction and send them back to continue to deliberate.” This instruction, also commonly referred to as an Allen-type instruction, has taken on this name due to its first being discussed in Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Plaintiffs asked that the instruction be given, but Hartvickson objected, noting that the Supreme Court “has recognized that it can cause a jury to make a decision on an improper basis, feeling undue pressure from the court.” Notwithstanding this objection, the court decided to give the supplemental instruction, apparently based on the then-current version of the instruction, PIK Civ. 3d 181.20 (modified in 2008 to delete objectionable language; see PIK Civ. 4th 181.20).
The instruction, as given to the jury, stated:
“This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must he decided sometime. There is no reason to believe that the case can be tried again any better or more exhaustively that it has been. There is no reason to. believe that more evidence or clearer evidence would be produced on behalf of either side.
“Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future juiy must be selected in the same manner that you were.
“These matters are mentioned now because some of them may not have been in your thoughts.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each others views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.
“The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you.
“You may now retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people.” (Emphasis added to illustrate the objectionable language no longer included in PIK Civ. 4th 181.20 [amended 2008].)
An instruction of this nature from the criminal context, specifically PIK Crim. 3d 68.12, has been heavily criticized by our appellate courts, especially when given after the juiy announces a deadlock. In State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972), our Supreme Court clearly warned against giving this instruction after a report of jury deadlock:
“[T]his court has criticized the giving of coercive charges of this character after the jury has received the case for its determination. [Citations omitted.] We reiterate our warning: The practice of submitting a forcing type instruction after the jury has reported its failure to agree on a verdict is not commended and may well lead to prejudicial error.”
This warning is essentially reiterated in the civil context within both the Notes on Use and the Comment to PIK Civ. 4th 181.20 (amended 2008), where the following admonition is provided:
“The propriety of giving this instruction in criminal trials has been addressed on several occasions. Although few verdicts have been reversed because of giving the instruction after the jury has announced itself deadlocked, the court has been critical of the practice. In each case where the matter has been considered, the court has noted that trial courts would be well advised to submit the instruction before tire jury retires to commence deliberations, not afterward.”
Indeed, more recently our appellate courts have continued to criticize the instruction, often focusing on aspects thereof that are particularly misleading, technically incorrect, or inconsistent with other instructions. For example, in State v. Scott-Herring, 284 Kan. 172, 181, 159 P.3d 1028 (2007), the Supreme Court once again criticized the instruction, in particular the objectionable portion that was included here:
“We recognize that the phrase ‘all cases . . . must be decided sometime’ is not technically correct because a case may be resolved in any number of ways that do not involve a jury’s verdict. However, we do not believe this technical error in the language warrants the reversal of Scott-Herring’s conviction under our standard of review, which requires proper and fair instructions rather than technically perfect instructions.”
See also State v. Salts, 288 Kan. 263, Syl. ¶¶ 2-3, 200 P.3d 464 (2009) (instruction criticized for inclusion of language that another trial would be a “burden” on both sides); State v. Nguyen, 285 Kan. 418, 436-37, 172 P.3d 1165 (2007) (“[T]he instruction as given is inaccurate and misleading .... [Nevertheless,] when the instruction accompanies all of the rest of the instructions given before deliberations, there is no error.”); State v. Carter, 284 Kan. 312, 330-31, 160 P.3d 457 (2007) (no error when PIK Crim. 3d 68.12 provided before deliberations with all jury instructions); State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006) (Defendant argued phrase “ ‘[l]ike all cases, [this case] must be decided sometime’ . . . misled the jury and exerted undue pressure for a verdict.”).
Finally, we note that most recently, panels of our court have held that the giving of this instruction after a jury deadlock was announced was reversible error in the criminal context. See State v. Pruitt, 42 Kan. App. 2d 166, 173-75, 211 P.3d 166 (2009); State v. Page, 41 Kan. App. 2d 584, 585-87, 203 P.3d 1277 (2009).
Here, we must face the question whether the giving of the instruction in the civil context with some of its “technically incorrect” language after the juiy has announced a deadlock was reversible error. Approaching the question in steps, it is clear that the inclusion of the language “all cases . .. must be decided sometime” was technically incorrect and erroneous. This specific language no longer appears in PIK Civ. 4th 181.20 and — as noted above — has been criticized in the criminal context. Scott-Herring, 284 Kan. at 181. Moreover, giving the instruction after the jury has announced a deadlock was also erroneous. Pruitt, 42 Kan. App. 2d at 175; Page, 41 Kan. App. 2d at 586-87. The inclusion of the bracketed language from PIK Civ. 4th 181.20, however, consisting of the last two paragraphs of the instruction utilized here and quoted above, instructing that the belated giving of the instruction should not be deemed more important than other instructions, causes us to conclude that the giving of this instruction was not reversible error. Nevertheless, we believe that the belated giving of this instruction must be considered in our analysis below as a factor in assessing the alleged jury misconduct.
Clarifying our holding on this issue, a trial court risks error in giving PIK Civ. 4th 181.20-(amended 2008) in a civil case after the jury has announced a deadlock. The risk of error is magnified by the inclusion of language from prior versions of the PIK instruction, particularly that language expressly criticized by our appellate courts in the criminal context. Although the error is not structural in nature, the belated use of this instruction may be considered in determining whether undue coercion has been a factor in reaching a verdict.
Did the District Court Abuse Its Discretion in Denying Hartvickson a New Trial Based on Jury Misconduct?
Hartvickson next contends the district court erred in denying her a new trial given the evidence of juiy misconduct; she further contends that, at a minimum, the trial court should have recalled the jury to probe for further substantiation of jury misconduct. We begin our analysis by detailing the material facts bearing on these issues.
Evidence of Jury Misconduct
When the jury was discharged, the district court instructed counsel to make no contact with individual jurors, faithfully following then-controlling law from this court’s opinion in Williams v. Lawton, 38 Kan. App. 2d 565, 170 P.3d 414 (2007), which was later affirmed in part and reversed in part by the Supreme Court in Williams v. Lawton, 288 Kan. 768, 207 P.3d 1027 (2009). Sometime after the trial, however, an individual juror — R.T.—contacted Hartvickson’s counsel to advise a concern about the verdict. After receiving permission from the court to speak to this juror, counsel obtained an affidavit from juror R.T. stating in material part:
“3. Turning to the jury’s deliberations themselves, the members of the jury extensively discussed the case during more than two days of deliberations. During this time, before we sent the note to the Court advising that we were making no progress, there had been several votes taken. Every vote taken ended with the jury split 7 in favor of the Plaintiff and 5 in favor .of the Defendant on the issue of liability. The vote never changed. Although the votes were confidential, it became clear during deliberations where everyone stood. As time went on, the statements by the members of the jury panel became stronger and, for the most part, no one was demonstrating any willingness to change their position. At the beginning of the deliberations the conversation had been very polite, but as deliberations continued the situation was becoming more tense, with some individuals on opposing sides of dre issue showing increasing irritation with each other;
“4. We had deliberated part of die afternoon on Thursday, all day Friday and most of the day Monday when the decision was made to send the note to the Court indicating that we were making no progress and that no one was changing their position. When the Court’s response was received, directing the jury to continue with its deliberations, while I do not remember words, there were expressions of frustration on the part of certain jurors. The Court’s direction for us to continue deliberations came late in the afternoon and after brief discussion of what to do the decision was made to go home for the evening;
“5. The next day, Tuesday, December 4, 2007, the situation in the jury room was unchanged. I do recall one or more members of the jury expressing concern that the ten days of paid leave they would receive from their employers for jury duty either had now run or would soon run. Fairly early in the deliberations on Tuesday morning, I told an analogy of a farmer with two mules and three bales of hay. The two mules kept trying to reach for the hay bales on the outside, but could not reach them. I pointed out that if the two mules would compromise, they would both be able to be fed from the hay bale in the middle. A couple hours later, when it became clear that nobody was going to change their vote, I then suggested, as a juror who had been speaking very strongly for the defense, that I would be willing to consider voting for liability as part of a compromise under which very low damages would be returned. All of the members of the jury agreed to this approach. There was continuing discussion over what would constitute an acceptable low verdict as part of the compromise. I argued for a lower verdict, perhaps two years of lost wages, while other jurors who had been in favor of the Defendant on liability were willing to go somewhat higher. At one point during the discussions of damages, the presiding juror made a comment, seemingly inconsistent with our compromise, to the effect that the jury had already decided liability. I spoke up and stated that was not true, but that any finding of liability was tentative, based upon our ability to arrive at an agreed upon low verdict for damages. Many other members of the jury panel, both those who had favored the Plaintiffs and those who had favored the Defendant spoke up to agree with me. By the end of this discussion, all of the jurors agreed that any agreement to find liability was tentative based upon completion of a compromise where a low damage verdict would be returned in exchange for a finding of liability. Due to the recognized difficultly in assigning a dollar value to non- monetary damages, and in the spirit of compromise, the consensus was to not award any non-monetaiy damages.
“6. The final verdict returned by the jury was reached on the basis of that compromise.” (Emphasis added.)
This affidavit became the basis for Hartvickson’s motion for new trial, and the district court conducted an evidentiary hearing on that motion that included live testimony from the same juror. Juror R.T. confirmed that, in four votes of the jurors taken during deliberations, the vote was always 7-5 in favor of the plaintiffs on liability. He testified that when it became clear that no one was going to change their vote he suggested that he would be willing to consider voting for liability as a part of a compromise under which very low damages would be returned. All votes prior to the “compromise” indicated that seven jurors voted in favor of plaintiffs on the issue of fault and five were in favor of the defendants. Juror R.T. testified that all of the members agreed to the approach, and two or three jurors thanked him for suggesting the compromise. Key excerpts from Juror R.T.’s testimony include:
“THE COURT: Do you remember any specific word other than that’s a good idea?
“JUROR R.T.: No, except it was unanimous.
“THE COURT: When you say it was unanimous, how — how did the jury indicate that this was going to be unanimous? Did you all take a vote?
“JUROR R.T.: We didn’t take a vote. We asked around the room — the presiding juror asked around the room if everyone agreed with this and every one nodded assent, yes. It wasn’t a written vote like we had before.
“THE COURT: ... I want you to look at Paragraph 6 of your affidavit [verdict reached on basis of compromise]. Do you see that?
“JUROR R.T.: . . . Yes, sir.
“THE COURT: Do you still stand by that statement?
“JUROR R.T.: Yes.
“THE COURT: Okay. Other than what you have already said here today, are there any additional statements or actions of the jury that you can recall that would cause you to make that statement? And you can take your time.
“JUROR R.T.: It wasn’t so much words, as a nonverbal feeling of relief that we were making progress whenever I commented because prior to that people had their opinions very solidly formed. Nothing was going to change their minds. That was very clear. We were just ab — from the first vote on we were absolutely deadlocked. We tried to discuss things and it was clear that minds were made up and nobody was going to change their mind. And it seemed like when I suggested this about — without being biblical, it’s like floodgates opened. It was a sense of cooperation all of a sudden. It was a — a sense of progress or something. It’s hard to — I can’t describe it so much in words as more of a feeling. People were — it was a relief. It was, yes, we can get something done here. We’re not just locked up anymore. And I wouldn’t say we were happy, but it was not this entrenched, just absolute rigidity that we had been experiencing. There was a — just a sense of cooperation or relief.”
The unanimous agreement that a fault finding was contingent on an agreeable damages award was reinforced by jurors’ responsés to the presiding juror starting to fill in the front of the verdict form (on fault) before there had been agreement on the damages. At one point during the discussion, the presiding juror started to fill in the front of the form, and juror R.T. told him to stop because they had yet to agree on damages. Juror R.T. testified to what then transpired as follows:
“The form— that he was starting to write on the front of the form. And I said please don’t do that, we haven’t agreed on the damages yet. And we agreed that we aren’t going to find for liability until we have agreement on damages. At which point he did say we’ve already found liability. And everyone in the room, every single person denied that and said no, we have not.”
Ultimately, the district court denied the motion for new trial and the request • to recall the jury. In a 37-page memorandum opinion, the court concluded that Hartvickson had not met her burden to prove that she was entitled to a new trial under K.S.A. 60-259(a) First, Second, or Third.
Jury Misconduct Based on Compromise Verdict
Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced a party’s rights, and the party claiming prejudice has the burden of proof. Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 408, 6 P.3d 871, rev. denied 268 Kan. 885 (1999). Juror misconduct which results in prejudice to a litigant and impairs his or her right to a fair trial requires a new trial. Huffman v. Thomas, 26 Kan. App. 2d 685, 695, 994 P.2d 1072, rev. denied 268 Kan. 886 (1999). The burden is therefore on Hartvickson to prove juiy misconduct and that the misconduct was to such degree that her rights were substantially affected. The district court rejected plaintiffs’ argument that Hartvickson did not have standing to object to the verdict, finding that a defendant is aggrieved when the jury has not had a full and complete deliberation on the issue of fault.
The danger of compromise verdicts is well stated in a California case cited by Hartvickson:
“ “Verdicts are sometimes rendered in personal injury or death actions that, in view of the evidence of injuries, suffering, and medical and other expenses, are clearly inadequate. Common experience suggests that these are tire result of compromise, some jurors believing that the evidence fails to establish liability, but yielding to the extent of agreement on a small recovery. It would be unfair to the defendant to ignore this unmistakable evidence of compromise and to accept the verdict for the plaintiff at face value as a determination of liability. Accordingly, it is well settled that the error calls for a general new trial, and a limited order is an abuse of discretion.’ [Citations omitted.]” Lauren H. v. Kannappan, 96 Cal. App. 4th 834, 840, 117 Cal. Rptr. 2d 484 (2002).
There are two methodologies to analyze whether there has been juror misconduct in compromising a verdict. First, our appellate courts have examined the question based upon objective circumstances; under this approach, there is usually no direct evidence from one or more jurors of misconduct. The second methodology is based on an assessment of the direct evidence of misconduct and is usually based upon affidavits or testimony of jurors. Here, the district court rejected a finding of misconduct under both standards.
Under the objective circumstances test, we examine three objective criteria to determine whether there has been a compromise verdict. The district court cited a Tenth Circuit of the Court of Appeals case which summarizes these objective factors, stating:
“To determine whether a verdict is the result of jury compromise, we look at several factors. In particular, a damages award that is grossly inadequate, a close question of liability, and an odd chronology of juiy deliberations are all indicia of a compromise verdict. [Citation omitted.]” Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445-56 (10th Cir. 1988).
Each of these criteria is based on Kansas case law. Barnett v. Hawk Pharmacy, Inc., 220 Kan. 318, 323-24, 522 P.2d 1002 (1976) (where there is an inadequate damages award after a lengthy deliberation marked by a series of strange questions from the jury, there is a strong indication of compromise); Timmerman v. Schroe der, 203 Kan. 397, 401, 454 P.2d 522 (1969) (a genuine conflict in the evidence on the issue of liability is required to raise any strong suspicion that a verdict awarding inadequate damages was a result of compromise).
In City of Ottawa v. Heathman, 236 Kan. 417, 421-26, 690 P.2d 1375 (1984), the Supreme Court distinguished cases applying the objective criteria from those where there is some direct evidence of misconduct:
“In all of these cases [of circumstantial evidence,] it was evident from the verdict reached that the jury had acted in contravention of the court’s instructions and of the evidence. Disregard of the instructions was sufficient cause for the courts to grant a new trial. In the present case, it is not evident from the jury’s verdict that the jury failed to follow the.court’s instruction. In fact, the trial court specifically found that the verdict was not contrary to the evidence, but was within the range of damages contained in the evidence. The court learned of the jury’s failure to follow instructions only after the filing of the juror’s affidavit and upon questioning the jurors at the hearing on the motion for a new trial. Whether this evidence could be used in determining whether to grant a new trial is a separate issue. [The court had already cited and discussed cases where it was evident from the verdict reached that the jury had acted in contravention of the court’s instructions and of the evidence.]
“Misconduct by the jury, when it occurs, may be uncovered and the truth and veracity of those testifying to such misconduct can be tested. The matters set forth in the affidavits, if proven, must establish a conscious conspiracy by the members of the jury to disregard and circumvent the instructions on the law given by the court. If they do so, the jurors would have violated their oaths as jurors.” 236 Kan. at 424-25.
Applying These Standards to the Evidence
Turning to the objective circumstances first, we note that the parties agree that liability was hotly contested here. Moreover, the relatively short period of deliberations required for a verdict following the issuance of the Allen-type instruction must be viewed as an odd sequence raising suspicion of compromise. See Skinner, 859 F.2d at 1446 (sudden arrival at unanimity after struggling for days as to liability raises a question of verdict reliability). Thus, the key question is whether the damages award here could be deemed “inadequate.”
Making an argument regarding inadequate damages puts a defendant in the interesting position of arguing that the damages awarded to the plaintiff were not sufficient and that the evidence in fact supported a higher damages award. Hartvickson argues that “plaintiffs offered substantial and largely uncontroverted evidence in support of their right to recovery” for seven separate categories of damages, both economic and noneconomic. She argues there was an “ocean” of testimony regarding the grief and bereavement of Duncan’s wife and five children and, therefore, the jury awarding nothing for noneconomic damages demonstrates a compromise verdict. Hartvickson argues that the absence of pain and suffering damages would be understandable if there had been a large economic damages award, which she argues was not given in this case. Although Hartvickson argues the economic damages award was low, however, she does concede that it was within the evidence.
Our review of Kansas case law reveals that our appellate courts have often concluded that a verdict that exclusively awards economic damages but ignores evidence of noneconomic damages is inadequate and indicative of compromise. See, e.g., Miller v. Zep Mfg. Co., 249 Kan. 34, Syl. ¶ 5, 815 P.2d 506 (1991) (a jury award limited to medical expenses that includes nothing for pain and suffering shown by uncontradicted evidence disregards the juiy instruction and is contrary to the evidence, and a new trial is required); Barnett, 220 Kan. at 323-24 (verdict for only $649 in excess of actual medical expenses where plaintiff sought an award for pain, suffering, disability, or disfigurement supported strong suspicion of compromise); Timmerman, 203 Kan. at 401 (verdict awarding medical expenses but nothing for pain and suffering or permanent injury supported new trial based on compromise verdict); see also Burton v. R.J. Reynolds Tobacco Co., 208 F. Supp. 2d 1187, 1212-13 (D. Kan. 2002) (failure to award noneconomic damages “raises an eyebrow,” but where total amount of damages was not grossly inadequate, verdict may not be set aside). Suffice to say that the failure to award noneconomic damages under all the circumstances of this case raises a strong suspicion of compromise. We need not decide whether our objective factor analysis alone supports a new trial, however, because there was also direct evidence of jury misconduct.
Here, there was compelling evidence that a unanimous jury agreed to a compromise that would break a deadlock caused by five persistent jurors who had consistently voted against the liability of Hartvickson. Based upon the compromise, the only juror to testify indicated that at least he, and four other jurors, agreed to find Hartvickson liable, despite previous votes against a finding of fault, in exchange for “very low damages.” Such an agreement is contrary to basic negligence law — requiring a finding of fault as a result of negligence before damages are determined. See Hunter v. Barnsdall Refining Co., 126 Kan. 277, 281, 268 P. 86 (1928) (It is elemental that negligence of defendant must be established before recovery can be had in a common-law action for damages.).
This compromise agreement by the jury violated other instructions given to the jury. Jury Instruction 6 stated in part: “A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.” The jury seemed to understand that it was required to first find Hartvickson at fault as indicated by several votes solely on the issue of fault before the compromise was presented. Additionally, the jury was clearly instructed that the answer to each question must be made by the agreement of ten or more jurors. Based on Juror R.T.’s testimony, it was only through this compromise agreement that the jury ended up with more than 10 jurors in agreement as to liability.
Finally, based on Juror R.T.’s testimony, it does appear that the jury disregarded the verdict form by finding an agreeable damages amount before finding Hartvickson was at fault. Juror R.T.’s affidavit stated that the members agreed that any finding of liability was “tentative and based upon completion of a compromise where a low damage verdict would be returned in exchange for a finding of liability.” The verdict form asked the jury in Question 1: “Do you find the defendant to be at fault?” and then told the jurors to proceed to Question 2 only if you answered “yes” to question 1. This mandatory sequence was clearly violated by the agreement to compromise.
We understand and respect the contrary conclusion reached by the district court. From our careful review of the court’s memorandum opinion, we conclude that the district court reached its contrary conclusion primarily due to two reasons: (1) The court was especially mindful of and faithful to the then-recent opinion of this court in Williams v. Lawton, 38 Kan. App. 2d 565, 170 P.3d 414 (2007), aff'd in part and rev'd in part 288 Kan. 768, 207 P.3d 1027 (2009),which held that a quotient verdict was not apparent in that case, thus requiring that this same district judge be reversed; obviously, this proved unwise given the later reversal in part by our Supreme Court; and (2) the court seems to have been testing the evidence of a compromise verdict by the principles for testing the evidence of a quotient verdict; suffice to say, these two forms of jury misconduct are entirely different, and the definition and standard to test for each are mutually exclusive of the other. Compare Blevins v. Weingart Truck & Tractor Service, 186 Kan. 258, 263-64, 349 P.2d 896 (1960) (quotient verdict), with Heathman, 236 Kan. at 421-26 (compromise verdict).
We thus conclude that based on objective factors that lead to a strong suspicion of misconduct, corroborated with direct evidence from the single juror, there was juiy misconduct in its compromise of liability in exchange for reduced damages and that this misconduct substantially prejudiced the defendant’s right to a fair trial. Our conclusions are buttressed not only by the wholesale failure to award noneconomic damages in a case where liability was hotly contested, but also by the relatively quick achievement of unanimity after the district court gave the belated Allen-type deadlocked jury instruction under PIK Civ. 3d 181.20 and by the compelling testimony of the juror who reported the compromise to defense counsel. These conclusions warranted a new trial, and the district court’s denial of Hartvickson’s motion was an abuse of discretion. See State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006).
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Greene, j.:
Dean D. Welsch, successor in interest to the lessors in an oil and gas lease, appeals the district court’s refusal to grant summary judgment cancelling the lease, as well as the court’s award of summary judgment to Trivestco Energy Company, the successor in interest to the lessee in that lease, thus preserving the lease on the basis that the shut-in royalty provisions of the lease created a covenant with entitlement to money damages rather than a condition with entitlement to lease termination. As alternate bases for its decision, the district court relied on a construction and application of the force majeure clause in the lease and the doctrine of temporary cessation of production. Welsch argues that the failure of Trivestco to pay shut-in gas royalty payments caused the lease to expire by its own terms and that neither the force majeure clause nor the doctrine of temporary cessation of production apply to save the lease. We agree with Welsch, reverse the district court, and remand with directions to cancel the lease in favor of lessor Welsch.
Factual and Procedural Background
The subject of this oil and gas lease cancellation action is a lease covering the northeast quarter and the north 80 acres of the east half of the west half of section 6, township 26 south, range 17 west, in Edwards County. The lease was entered into on May 23, 1975, and contained the following material provisions:
“2. Subject to the provisions herein contained, this lease shall remain in force for a term of three (3) years from this date (called the ‘primary term’) and as long thereafter as oil, liquid hydrocarbons, gas or other respective constituent products, or any of them, is produced from said land or land with which said land is pooled.
“3. The royalties to be paid by lessee are: (a) on oil, and other liquid hydrocarbons saved at the well, one-eighth of that produced and saved from said land . . . (b) on gas, including casinghead gas and all gaseous substances, produced from said land and sold or used off the premises or in the manufacture of gasoline or other products therefrom, the market value at the mouth of the well of one-eighth of the gas so sold or used . . . and (c) at any time either before or after the expiration of the primary term of this lease, if there is a gas well or wells on the above land . . . and such well or wells are shut in before or after production therefrom, lessee or any assignee hereunder may pay or tender annually at the end of each yearly period during which such gas well or gas wells are shut in, as substitute gas royally, a sum equal to the amount of delay rentals provided for in this lease for the acreage then held under this lease by the party making such payments or tenders, and if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities. . . .
“6. If, . . . after discovery of oil, liquid hydrocarbons, gas or their respective constituent products, or any of them, the production thereof should cease from any cause, this lease shall not terminate if lessee commences reworking or additional drilling operations within sixty (60) days thereafter. . . .
“9. Lessee shall not be liable for delays or defaults in its performance of any agreement or covenant hereunder due to force majeure. The term ‘force majeure’ as employed herein shall mean: any act of God . . . ; exhaustion or unavailability or delays in delivery of any product, labor, service, or material.”
By declaration of unitization dated June 26,1978, and pursuant to an express provision in the lease, the lease acreage was unitized with adjoining leases to create a unit of approximately 682.4 acres. The only producing well on the unitized acreage was the gas well at issue herein.
In late August 2004, Trivestco shut in the gas well because the gas purchaser for this well ceased making payments for produced gas. The well remained shut in until late March 2007. In the interim, bankruptcy proceedings ensued involving the gas purchaser and related entities. At no time during this 2 and ]/2-year period did Trivestco pay or tender shut-in royalties to Welsch, nor did it attempt to recommence production or to commence additional drilling activities at any time thereafter.
After Welsch made demand for release of the lease and negotiations between the parties failed, Welsch brought this action to declare the lease terminated. After discovery was concluded, both parties filed opposing summary judgment motions. The district court denied Welsch’s motion but sustained Trivestco’s motion, thus resulting in the preservation of the lease.
The district court justified its decision on multiple bases. First, it held that the difficulties experienced by Trivestco with its gas purchaser “triggered the force majeure clause in the lease, thereby suspending any provision of the lease which would otherwise terminate it.” The court also held that the “obligation to pay. royalty is a covenant of a lease, not a condition,” that “a forfeiture under the facts would represent a windfall to [Welsch],” and that the lease therefore should not be terminated for failure to pay shut-in royalties. Finally, the court held that because the cessation of production was temporary, never intended to be permanent, and occurred for only a reasonable time, the cessation did not warrant termination of the lease, applying the doctrine of temporary cessation of production rather than the specific lease provision governing cessation of production. Although the court refused to cancel the lease, the court granted judgment to Welsch for payment of shut-in royalties of $706.
Welsch timely appeals.
Standards of Review
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for 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, the same rales apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009).
The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006). Regardless of the district court’s construction of a written contract, an appellate court may construe a written contract and determine its legal effect. City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007). These standards have application to the interpretation of oil and gas leases. Lauck Oil Co. v. Breitenbach, 20 Kan. App. 2d 877, 878, 893 P.2d 286 (1995).
Did the District Court Err in Holding the Shut-in Royalty Provision of the Lease to he a Covenant that Limited Welsch to a Judgment for Unpaid Royalties Instead of Lease Cancellation?
At the outset of our analysis, it is critical to recognize that oil and gas law is not so much a unique body of law as it is a specialized application of contract law. The rights and obligations of those operating in the Kansas oil patch are governed by the terms and conditions of specialized contracts, and each dispute arising in this context can and should usually be resolved by the construction and application of such contracts. Although parties to such disputes often seek to rely on and argue the application of case law, we must decline to blindly apply what may appear to be legal principles within such precedent without a preliminary determination whether the contract provisions at issue in the cited authority are identical to those before us. This is particularly true in construing a shut-in royalty clause. See Pray v. Premier Petroleum, Inc., 233 Kan. 351, 662 P.2d 255 (1983).
Notwithstanding the importance of the particular lease terms and conditions, certain general characteristics of shut-in royalty clauses should be noted. The concept underlying such clauses is to enable a lessee, under appropriate circumstances, to keep a non-producing lease in force by the payment of the shut-in royalty and that such a clause by agreement of the parties creates constructive production. In this manner, the clause can modify and become an integral part of the habendum clause, or extension clause, of the lease. See Pray, 233 Kan. at 353. Our Supreme Court has provided a more detailed history and use of such clauses in Tucker v. Hugoton Energy Corp., 253 Kan. 373, 380-82, 855 P.2d 929 (1993).
Here, we begin our analysis by analyzing the shut-in royalty provisions of the subject lease. First, we note that the provisions are not a part of the habendum clause but rather are contained within the royalty clause. Second, we note that the provisions are stated in language indicating that such payments are optional; that is, the lease provides that the lessee “may” pay or tender such royalties rather than employing language of obligation. Third, we note that the provisions contain the saving clause that if such royalties are paid, “it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities”; that is, payment of such royalties — if elected by the lessee— is obviously intended to relate to the habendum clause that preserves the lease in effect “as long thereafter as” production is achieved. Finally, we note that production from die lease was achieved during the primary term, and its cessation occurred well into the secondary term of the lease, where the habendum clause required production for the term of the lease to continue. These unique features of the shut-in royalty provisions are paramount to our construction and application of those provisions to the factual circumstances here.
Generally, rehable authorities recognize that an option to pay shut-in gas royalties — in contrast to an obligation to do so — can support cancellation where the optional royalties are not paid. Generally, such an option is considered to create a special limitation on the lease, and the failure to pay the shut-in royalties will terminate the lease. See Pierce, Incorporating a Century of Oil and Gas Jurisprudence Into the “Modem” Oil and Gas Lease, 33 Wash-bum L.J. 786, 811 (1994). According to the foremost treatise authority, Williams & Meyers,
“[a]t first glance it might appear that lessees would prefer the optional to the obligatory form of this clause. However where the optional form is employed, the lease will provide, expressly or by implication, that the lease shall expire under the prescribed circumstances unless such optional payment is made. In a number of cases lessees have lost valuable leaseholds by reason of failure to make timely payment of the optional shut-in royalty payment. It is for this reason that many such clauses provide that a lease shall be preserved even though there is no production or operations on the premises if a well capable of producing is shut-in; such clauses impose a duty to pay shut-in royalty.” 3 Williams & Meyers, Oil and Gas Law § 632.8, pp. 436-37 (2008).
See Amber Oil and Gas Co. v. Bratton, 711 S.W.2d 741, 743-44 (Tex. App. 1986) (optional language creates special limitation on the lease grant, and failure to pay the shut-in royalty when due results in termination); see also Greer v. Salmon, 82 N.M. 245, 247-51, 479 P.2d 294 (1970) (where optional rather than obligatory provision, failure to pay resulted in automatic termination); Freeman v. Magnolia Pet. Co., 141 Tex. 274, 278-79, 171 S.W.2d 339 (1943) (optional character of payment coupled with the provision that it will be considered that gas is being produced if such payment is made indicates that advance payment is required to keep the lease alive).
Indeed, here the lease does provide “by implication” that it will expire absent such payment. In stating that “if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced,” the lease implies that if such payments are not made, the production requirement of the habendum clause is not satisfied by reason of the shut-in well. In the absence of production in paying quantities, the lease expires by its own terms. In construing a lease form that was apparently identical to the lease before us, the Texas Court of Civil Appeals held that failure to pay the shut-in royalties causes the lease to expire. The court expressed its reasoning as follows:
“According to the clause in the instant case, if a well is shut in, the lessee may pay an annual royalty equal to the amount of the delay rentals, in the same manner as payment of the delay rentals, and if such payment is made, it shall be considered under all provisions of the lease that gas is being produced in paying quantities for one year from the date of payment. It was held in Freeman v. Magnolia Petroleum, Co., 141 Tex. 274, 171 S.W.2d 339 (1943), that the optional character of payment coupled with the provision that it will be considered that gas is being produced if such payment is made indicates that advance payment is required to keep the lease alive. [Citation omitted.]” Marifarms Oil & Gas, Inc. v. Westhoff, 802 S.W. 2d 123, 125-26 (Tex. App. 1991).
Here, the district court held that the shut-in provisions should be construed as a covenant rather than a condition or special limitation of the lease and, therefore, limited the lessor to money damages rather than lease termination. We respectfully disagree with this conclusion, not only because of the weight of the authorities cited above but because the phrase “may pay or tender” simply does not express any language "of obligation. The term “may” is commonly understood to mean “is permitted to” in the discretionary or permissive sense. Black’s Law Dictionary 993 (7th ed. 1999). Trivestco is unable to cite any Kansas case law to suggest that our courts have at any time recognized “may” as a term of obligation, and we find none as well. In contrast, our appellate courts have often recognized that the term “may” connotes only an option or an election. State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 641-42, 822 P.2d 1033 (1991) (discussing the definitions of “shall” and “may” and stating that the word “may” is usually “employed to imply permissive, optional or discretional, and not mandatory action or conduct.” The court stated that as a general rule the word “may” will not be treated as a word of command unless the context or subject matter indicates it should be treated as such.). We decline to construe the language of the clause here as a covenant.
Finally, the district court concluded that payment under the shut-in provisions here must be construed as a royalty rather than a rental and that the obligation to pay royalties is generally considered a covenant rather than a condition of the oil and gas lease, citing Cherokee Resources, Inc. v. Gold Energy Corp., 11 Kan. App. 2d 436, 724 P.2d 695 (1986). We respectfully disagree that characterization of the shut-in payment (which was not made here) as a royalty is somehow determinative of the issue before us. In Cherokee Resources, a panel of our court was faced with a guar anteed minimum royalty clause in an oil and gas lease and addressed the question of who should pay such minimum royalties when the acreage covered by the lease was divided by assignment, and producing wells were located on only 80 acres within the 240-acre tract. The only clause at issue was a guaranteed royalty clause, and there was no claim or question about the impact of nonpayment on the lease. We simply do not view the decision in Cherokee Resources as in any way instructive or dispositive to the issues before us. Moreover, neither the characterization of a shut-in payment as royalty nor the location of shut-in provisions within the royalty provisions of a lease is determinative of any aspect of construction of such provisions other than questions related to who may be entitled to the proceeds from such payment. See 3 Williams & Meyers, Oil and Gas Law § 632.9, pp. 438-440.1.
In summary, the lease before us provided to Trivestco an option to pay shut-in royalty payments in order to allow the only well on the leased acreage to be “considered” to produce gas in paying quantities sufficient to satisfy the habendum clause and extend the lease in full effect. The language of the clause created a special limitation on the lease, and failure to exercise the option directly affected the life of the lease. It is beyond dispute that Trivestco did not exercise this option, and the result is that the shut-in royalty provisions of this lease did not preserve the lease and it expired by its own terms on May 22, 2005, unless some other aspect of the lease saved it from such expiration. We examine other lease clauses and potentially applicable doctrines to determine whether the lease was otherwise preserved.
Did the District Court Err in Holding the Lease Was Preserved by the Doctrine of Temporary Cessation of Production?
Welsch argues the district court erred in generally applying the doctrine of temporary cessation of production as a legal basis to avoid expiration of the oil and gas lease. The doctrine has been recognized in Kansas as dictating that a mere temporary cessation of production because of necessary developments or operations do not result in the termination of the oil and gas lease, despite the requirement of production to satisfy the habendum clause. See Wilson v. Holm, 164 Kan. 229, Syl. ¶ 6, 188 P.2d 899 (1948). So long as the cessation is temporary, the doctrine allows the lessee a reasonable time to recommence production in paying quantities. See Wrestler v. Colt, 7 Kan. App. 2d 553, 558, 644 P.2d 1342 (1982). Here, the district court determined that the cessation was temporary rather than permanent and that renewed production was achieved in a reasonable time, thus preserving the lease under the doctrine.
The problem with the court’s rationale is best articulated by amici curiae’s argument that the doctrine cannot be applied where the parties have expressly contracted for a particular result in the event of production cessation. Indeed, here the oil and gas lease contained express provisions governing temporary cessation of production, and the period for recommencement or additional development was specified to be 60 days. According to amici curiae:
“A producer simply cannot invoke the doctrine of temporary cessation to avoid complying with a provision that requires it to recommence production within a specified period of time. See Pierce, [Kansas Oil and Gas Handbook], at § 11.16 [1991] (cessation clause ‘ehminate[s] the permanentitemporaiy cessation issue [by] substituting] a definite time frame, such as ‘within sixty (60) days ....’; [3] Williams & Meyers, [Oil and Gas Law], at §616.2, pp. 283-84 (‘If the lease specifically provides that, in the event of cessation of production, it may be preserved by new operations commenced within some specific period of time (e.g., 60 days), then it is difficult to support the contention that the lease may be preserved for a longer period of time without any drilling operations thereon by reason of the “temporary cessation of production” doctrine [ ] . . . .’).”
We agree and adopt this reasoning and the authorities cited in support of our conclusion that the district court erred in applying the doctrine here in lieu of the express contract provision. The oil and gas lease provided that if production of gas ceases “from any cause,” then the lessee had 60 days to commence reworking or additional drilling operations in order to prevent termination of the lease. The gas well at issue ceased producing and was shut in on August 31,2004. In the absence of any record evidence that rework or additional drilling occurred prior to October 31, 2004, the lease was not subject to being preserved by the cessation of production clause within the lease.
Moreover, we note in passing that some authorities have suggested that a temporaiy cessation of production clause does not save a lease where the cessation could have been saved by the shut-in royalty provisions of the same lease.
“[T]he constructive production achieved by the payment of shut-in gas royalty is not the production to which the cessation of production clause applies and thus such clause would not apply to a cessation of constructive production that results from a failure to make payment of the shut-in gas royalty.” 4 Kuntz, Oil and Gas § 47.3(f)(2), p. 112 (Thornton rev. 1990).
See also Marifarms Oil & Gas, 802 S.W.2d at 125-26 (if a lease contains both a cessation of production clause and a shut-in royalty provision, then to preserve the lease it is required to make the shut-in royalty payment within the time period stated in the cessation of production clause); Duke v. Sun Oil Company, 320 F.2d 853, 858-59 (5th Cir.), (the shut-in royalty payment must be paid within the time given in the cessation of production clause or else the lease terminates), reh. granted on factual questions of proper anniversary date and timeliness of tender 323 F.2d 518 (5th Cir. 1963).
Finally, we note that the district court considered equitable factors in determining whether to terminate the lease. We concede that the law abhors a forfeiture, but our Supreme Court has held that where an action is one to determine the continued validity of the lease under its own terms and not an equitable action to declare the forfeiture of an existing lease, the court has no power to extend a lease beyond the term which the parties have fixed by their written contract. Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, Syl. ¶ 9, 553 P.2d 885 (1976). Accordingly, equitable factors, such as those recognized by M & C Oil, Inc. v. Geffert, 21 Kan. App. 2d 267, Syl. ¶¶ 3-5, 897 P.2d 191 (1995), are not applicable to the situation before us.
We conclude the district court erred in applying the doctrine of temporaiy cessation of production in lieu of the express provision in the lease governing the same eventuality. Here, the lease was certainly not preserved by the express temporaiy cessation of production clause because there was no recommencement or addi tional drilling activity within the 60 days specified and agreed within the lease.
Did the District Court Err In Applying the Force Majeure Clause To Preserve the Oil and Gas Lease
Finally, Welsch argues that the district court improperly applied the force majeure provisions of the oil and gas lease to avoid its expiration. The district court held that the difficulties with the gas purchaser, including bankruptcy, were “factual events [that] triggered the force majeure clause in the lease, thereby suspending any provision of the lease which would otherwise terminate it.” Again, we respectfully disagree.
First, we note that the bankruptcy of a purchaser is generally covered by the shut-in royalty clause, not the force majeure clause. Pierce, Kansas Oil and Gas Handbook § 11.18, p. 11-20 (1991) (a lessee seldom has control over the demand for production from a well, and this is why the shut-in royalty clause was devised); see also United States v. Panhandle Eastern Corp., 693 F. Supp. 88, 96 (D. Del. 1988) (surveying the law regarding the question whether market forces may constitute force majeure and concluding that courts generally refuse to excuse performance under such a theory); Champlin Petroleum Co. v. Mingo Oil Producers, 628 F. Supp. 557, 560-61 (D. Wyo. 1986) (bankruptcy proceedings of lessee’s subassignee did not constitute force majeure but inherently the result of financial problems). For these reasons, we are not convinced the financial issues of a gas purchaser should be considered a force majeure event under this lease.
More importantly, however, we note that even if the unavailability of purchasing and transportation services would constitute a force majeure event under the express provisions of the lease, the clause simply does not excuse the failure to pay shut-in royalties. The clause states that “lessee shall not be-liable for delays or defaults in its performance of any agreement or covenant hereunder due to force majeure.” (Emphasis added.) The performance default that caused the lease to expire was the failure to pay shut-in royalties, and that default was not due to any force majeure event.
In the context of legal instruments, the phrase “due to” has long been synonymous with the phrases “caused by,” “because of,” and “resulting from.” See Black’s Law Dictionary 501 (6th ed. 1990); Webster’s Third New International Dictionary 699 (1993); Federal Life Ins. Co. v. White, 23 S.W.2d 832, 834 (Tex. Civ. App. 1929).
In order for the force majeure clause to prevent the lease from terminating, the default (failure to pay shut-in royalties) must be the result of the force majeure event, here the unavailability of gas purchasing services. The unavailability of such purchasing and transporting services simply did not prevent Trivestco from paying shut-in royalties; therefore, the force majeure clause was not triggered.
The district court erred in determining that the force majeure clause was triggered because of the unavailability of purchasing and transportation services. Even if unavailability of services had been a force majeure event, the failure to exercise an option to pay shut-in royalties was not due to this purported force majeure event; thus the clause has no application here.
Summary and Conclusion
We have concluded that the oil and gas lease at issue expired by its own terms when production from the only producing well on the acreage ceased due to financial failure of the gas purchaser, the well was shut in, production was not recommenced nor was additional drilling achieved within the 60 days required under the lease, shut-in royalty payments were not paid on or before May 22, 2005, and the failure to pay or tender such shut-in royalty payments was not due to any force majeure event. For these reasons, the district court must be reversed and the matter remanded with directions to enter judgment of lease cancellation to lessor Welsch.
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Foth, J.:
The primary issue raised in this appeal is whether a jury verdict finding a defendant guilty of speeding in excess of the maximum limit of 55 miles per hour, without specifying the speed actually attained, permits the convicting court to report to the division of vehicles that defendant was convicted of a “moving traffic violation.” We hold it does not.
On January 14, 1977, defendant Larry G. Herber was issued a uniform notice to appear in the district court of Gove county. The notice, subsequently filed and verified as a complaint, charged him with speeding 83 miles per hour on a county road where the maximum lawful speed was 55 m.p.h. The notice and complaint thus complied with K.S.A. 8-1339(a), which requires those documents to “specify the speed at which the defendant is alleged to have driven and also specify the maximum speed applicable within the district or at the location.”
The case was tried to a jury. The only instruction on the offense charged was as follows:
“The defendant is charged in this case with the crime of exceeding the maximum speed limit. The crime is set out in the Kansas Statutes as follows:
“K.S.A. 8-1336. (a) Éxcept when a special hazard exists that requires lower speed for compliance with K.S.A. 8-1335, the limit specified in this section or established as hereinafter authorized shall be maximum lawful speeds and no person shall drive a vehicle in excess of such maximum speed limits: (1) Twenty (20) miles per hour in any business district; (2) Thirty (30) miles per hour in any residence district; and (3) Fifty-five (55) miles per hour in all other locations.”
The jury’s verdict, on a form objected to by defendant, was as follows:
“We, the jury, find the above-named defendant, Larry G. Herber, guilty of exceeding the maximum speed limit.”
It may thus be seen that all the jury was required to find in order to convict — and all it did find — was that defendant exceeded the maximum speed limit of 55 m.p.h. There is no indication in the record and nothing from which one can reasonably infer a finding by the jury that defendant was “guilty as charged” or was driving at any particular speed. It was entitled to return the verdict it did even if it believed defendant’s admission to the arresting officer “that he possibly may have been traveling 65 but no faster.”
Nevertheless, after imposing a fine of $250.00 and costs, the trial court included the following in the journal entry:
“The court further finds that pursuant to the alleged speed set out in the uniform notice to appear and complaint, the record sent to the state will show driving at 83 m.p.h.”
In his brief defendant argues that the evidence was insufficient to support the conviction. At oral argument counsel conceded that it was sufficient, and we agree. In addition to defendant’s admission quoted above, the arresting trooper testified to pacing defendant at speeds up to 90 m.p.h. and clocking him with a stopwatch over a measured course. The fact that the trooper was on a parallel road went to the weight of his testimony — to be determined by the jury and not this court.
The real issue is whether the record should show that defendant was convicted of driving 83 m.p.h. The issue is important because under K.S.A. 8-2115 it is the duty of the clerk of the court to forward an abstract of all traffic convictions to the division of motor vehicles. Under 8-255(a)(2) the division may suspend the driver’s license of any person who has been convicted of three or more “moving traffic violations” committed within a twelve month period.
“Moving traffic violation” is a generic term not defined in our statutes, and would include this speeding conviction if it were not for K.S.A. 8-1341:
“Any conviction or forfeiture of bail or bond for exceeding the maximum speed limit established by subsection (a) (3) of K.S.A. 8-1336 by not more than ten (10) miles per hour shall not be construed as a moving traffic violation for the purpose of K.S.A. 8-255, and any amendments thereto.”
The reference to 8-1336(a)(3) is to the 55 m.p.h. limit applicable here. Hence if defendant was convicted of driving 65 m.p.h. (as he admitted) or less, he was not convicted of a “moving traffic violation” even though he was properly convicted of speeding. On the other hand, if he was convicted of driving more than 65 m.p.h. he was convicted of a “moving traffic violation” and the trial court’s finding was correct. The trouble is, as previously observed, there is simply no way of telling what speed the jury found.
The situation as we see it is closely analogous to State v. Smith, 215 Kan. 865, 528 P.2d 1195. That was a prosecution for criminal damage to property under K.S.A. 21-3720. The statute makes it a felony if the damage exceeds $50, a misdemeanor if less than $50. The jury in that case convicted, but was not required to find the value of the damage. The court vacated the felony sentence imposed by the trial court and remanded for resentencing for a misdemeanor.
Theft presents the same situation. If the value of the stolen property exceeds $50 the offense is a felony, if less it is a misdemeanor. Where a jury fails to find the value of the property stolen a felony sentence cannot stand; resentence for a misdemeanor is the only alternative. State v. Piland, 217 Kan. 689, 538 P.2d 666; State v. Towner, 202 Kan. 25, 446 P.2d 719.
We think the same kind of situation obtains under our present speeding statutes where the charge is exceeding the 55 m.p.h. limit. Where a trial is held the trier of fact (either judge or jury) must determine the defendant’s speed, or at least determine whether or not the defendant exceeded the limit by more than 10 m.p.h. Instructions to the jury should require that, if it finds the defendant guilty, it should find this additional fact, and appropriate verdict forms should be supplied.
In this case the state suggests that the defendant somehow waived such a finding by the jury. We have carefully examined the record and find no such waiver.
It follows that the judgment must be modified by striking the trial court’s finding that defendant was convicted of driving 83 m.p.h. In a trial to a jury only the jury could make such a finding. Under the analogy of the cited cases the record must show that defendant was convicted of the lesser variety of speeding, i.e., not more than 10 m.p.h. over the 55 m.p.h. limit. As so modified the judgment is affirmed. | [
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Spencer, J.:
Florence M. Mellott died testate on July 13,1969, a resident of Wyandotte County, Kansas. She was survived by her daughters, Margaret and Mary, and by her sons, Howard and Arthur. Her last will and testament dated July 27, 1958, was admitted to probate and her son Arthur was appointed and qualified as executor, without bond, on September 3, 1969. The admission of the will to probate is not in question.
Provision was made for the payment of debts and funeral expense, after which the testatrix made separate bequests to Margaret, Mary, and Howard in form as follows:
“I hereby bequeath to [name] . . . the following specific personal property, to wit: (here follow items of particular identifiable personal property) . . . two (2) shares of Brotherhood State Bank stock . . . .”
A fourth bequest in favor of Arthur is identical in form to the above except that, instead of a specific number of shares, he is to receive “the balance of the stock owned by me in the Brotherhood State Bank.” The residuary estate was devised and bequeathed in equal shares to the four children of the testatrix. The executor was granted the power to sell and dispose of property at his discretion without court order.
On the date the will was signed, the testatrix owned seven and one-half shares of Brotherhood State Bank stock. At the time of her death, her holdings stood at 86 shares; and at the time of the final accounting at 172 shares. One of the findings of the trial court is as follows:
“The Court further finds that testatrix, at the time of the execution of her will, owned seven and one-half shares of Brotherhood State Bank stock and thereafter acquired the following:
August 29, 1958 purchased one-half (VJ) share
January 10, 1962 Eight for one (8 for 1) stock divided for total of sixty-four (64) shares.
January 17,1968 Fifty percent (50%) stock dividend for total of ninety-six (96) shares.
February 19, 1968 Deceased purchased ten (10) shares for total of one hundred six (106) shares.
May 14, 1968 Deceased sold Arthur M. and Olivia R. Mellott twenty (20) shares giving said deceased total of eighty-six (86) shares.
January 20, 1971 One hundred percent (100%) stock dividend giving estate total of One hundred seventy two (172) shares.”
On January 9, 1970, Arthur as executor filed an inventory and appraisal listing among the estate assets eighty-six (86) shares of Brotherhood State Bank stock and $1,400.19 in cash. These items were also listed as the personal property of the decedent on the form entitled “Information Concerning a Non-Taxable Estate” filed with the Kansas Director of Revenue.
The record reveals that the $1,400.19 in cash had been held by decedent in three separate bank accounts: $1,000 in a savings account and $327.34 in a checking account at the Wyandotte County Bank, and $72.85 in a checking account at the Commercial National Bank. Arthur later claimed the first two accounts as surviving joint owner. After Arthur qualified as executor, he transferred all of the funds to the Wyandotte County Bank checking account, which was thereafter referred to as the “estate account.”
Prior to her death, the testatrix had borrowed $1,500 from the Wyandotte County Bank and had pledged her Brotherhood State Bank stock as collateral. The principal of that loan was subsequently reduced to $1,400. On December 3, 1969, following his appointment as executor, Arthur pledged the eighty-six shares of Brotherhood State Bank stock as collateral for a personal loan of $4,000 from the Home State Bank. The proceeds from that loan were then deposited in the “estate account,” from which the decedent’s debt of $1,400 plus interest of $56, as well as a $500 personal debt of Arthur’s plus interest of $5, were paid. The remaining approximately $2,000 of the loan was transferred to the family-owned corporation, Mellott Timberlake, Inc. The executor did not seek court authority to pledge the stock for his loan, but the undisputed evidence at trial was that he had his brother’s and sisters’ prior permission to do so.
The “estate account” was merely a continuation of the checking account which the decedent had at the Wyandotte County Bank during her lifetime. The checks used were imprinted only with the name of Florence M. Mellott and were paid over the signature of Arthur M. Mellott without his designation as executor. He paid from this account, without the formality of claims being filed, $150 to Howard Mellott, $250 to the Brotherhood State Bank, and $500 to Mellott Timberlake, Inc.
The executor filed his petition for final settlement together with a final accounting on November 6, 1972. “Bank a counts, joint with petitioner and savings accounts” in the amount of $1,400.19 were listed as estate assets. A payment to the “Wyandotte County Bank (note & interest)” of $1,961 was listed as a disbursement. The petition for final settlement proposed that all of the remaining estate be divided equally among the four children. The executor and his attorney waived fees for their services. Margaret and Mary filed written defenses, noting that the disbursement to the Wyandotte County Bank should have been for only $1,456. The executor admitted error and amended his accounting to reflect only that amount. At the same time the executor deleted from the amended account the sum of $1,327.34 which had been shown on the original accounting, but which the executor now claimed to be his personal property as the surviving joint owner of the two bank accounts standing in his name with the testatrix as joint tenants with right of survivorship. By his doing so, there remained only the sum of $72.85 as the beginning cash balance in the estate. In addition, the executor and his attorney now sought fees for their services and a petition for determination of intent was filed asking the court to determine the respective interests of the legatees in the Brotherhood State Bank stock in light of the substantial increase in the number of shares.
By its order filed April 5, 1973, the probate court directed distribution of the Brotherhood State Bank stock on the basis of two parts each to Margaret, Mary, and Howard, and one and one-half parts to Arthur. That court also found that the two bank accounts totaling $1,327.34 had been held in joint tenancy accounts by the testatrix with Arthur and passed to Arthur as the surviving joint owner upon the death of the testatrix. The court also approved the executor’s amended accounting and directed that he receive a fee of $500 and the further sum of $1,000 to be paid to his attorney.
Not satisfied with the order directing distribution of the bank stock, the executor appealed to the district court, where the matter was heard de novo. Arthur there testified as to the joint tenancy nature of the Wyandotte County Bank accounts; that he left that money in the “estate account” because he needed money to pay expenses; and that when there were estate receipts he simply deposited them to the “estate account.”
As shown by the journal entry of judgment filed October 8, 1976, the district court found:
“. . . [T]hat the Will of the deceased speaks from and took effect on the date of the death of said deceased on July 13, 1969. That the terms of the said Will are explicit and therefore not subject to judicial construction. That the funds [of the two accounts at the Wyandotte County Bank were joint tenancy accounts and] passed to said joint tenant on the date of death of deceased. That the executor Arthur M. Mellott did not commit any acts of misconduct or fraud in his handling of the subject estate and therefore is entitled to the fees awarded him in the Probate Court.
“That in accordance with the Last Will and Testament of deceased, the Brotherhood State Bank stock should be distributed as follows:
“Margaret M. Macurdy 4 shares
Mary N. Corcoran 4 shares
Howard A. Mellott 4 shares
Arthur M. Mellott balance of stocks.”
Margaret and Mary have appealed, contending error by the trial court in (1) approving the final accounting, (2) approving the acts and conduct of the executor and allowing an executor’s fee, (3) the disposition of the bank stock, and (4) denying them an allowance for attorney fees.
Considering first the matter of the accounting, it is well established that the burden of proving the correctness of the final accounting is upon the executor. In re Estate of Hawk, 171 Kan. 478, 233 P.2d 1061. Appellants have lodged several objections, the foremost of which is the exclusion of the joint tenancy accounts from the estate. Although the only evidence as to the joint tenancy nature of the accounts was the testimony of Arthur himself, that testimony was uncontradicted and, as such, was sufficient tb form the basis for the finding by the trial court that the accounts were in fact held in joint tenancy.
It is argued that by reason of having listed the accounts as assets of the estate on the inventory and on the inheritance tax report Arthur has waived any right which he may have had to those accounts, is estopped from claiming title to the accounts, and is barred by the non-claim statute (K.S.A. 59-2239) from removing them from the estate. These arguments are answered in the case of In re Morgan, 219 Kan. 136, 546 P.2d 1394, where it is stated:
“The inventory is only primg, facie evidence of the contents of an estate.” (Syl. 1.)
“An executor who includes in his inventory property held by him in joint tenancy with the decedent does not by that act alone estop himself from claiming title to such property.” (Syl. 2.)
Although the accounts were carried as “cash” on the inventory and the inheritance tax report, we note they were listed as “bank accounts, joint with petitioner” on the original of the final accountings. We also note the executor’s original intention to divide all of the assets, apparently including the joint tenancy bank accounts, equally among all of the legatees of the testatrix and to waive any entitlement to fees. We recognize also what appears to be an attempt by a family member to administer and distribute the assets of a relatively small estate without undue complication and expense. Under the circumstances, and in view of the findings of the trial court which approved and allowed the acts and proceedings of the executor, we conclude that Arthur did not waive his entitlement as the surviving joint owner of the two bank accounts.
Morgan also stated that “[o]ne who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement . . . .” (219 Kan. at 137.) Here, there is no evidence of any change of position by appellants in reliance on the fact that the joint accounts were reported as assets of the estate. They argue that although this was a non-taxable estate the manner of reporting the estate for tax purposes was such that might have caused them to share in any resulting tax burden. If such a situation had arisen, a case for estoppel might have been made, but as no taxes were assessed the point is not well taken.
Appellants argue that Arthur should have filed a claim against the estate within the time allowed by K.S.A. 59-2239. Morgan noted with approval the case of Oswald v. Weigel, 215 Kan. 928, 529 P.2d 117, to the effect that an executrix who incorrectly included her own personal property in the inventory of an estate need not take any action to remove the property from the estate as that property did not belong in the estate to begin with and the non-claim statute did not apply. (219 Kan. at 138.)
It is urged that the executor should be required to reimburse the estate for the $505 paid from the estate account in satisfaction of his personal obligation to the Wyandotte County Bank. As previously noted, this item was included in the payment of the decedent’s debt originally reported at $1,961, but corrected and reduced on the amended accounting to $1,456. It is obvious that payment of the personal debt of $505 was not from the estate funds, but rather from the personal funds of the executor which he had left in or deposited to the estate account. Three other disbursements from the estate account which were challenged by the appellants ($150 to Howard, $250 to the Brotherhood State Bank, and $500 to Mellott Timberlake, Inc.) may also be accounted for as having been taken from the executor’s personal funds then remaining in the “estate account,” for on the amended accounting those funds are not shown as receipts and the challenged expenditures are not shown as disbursements.
Without intending to condone the manner in which the executor maintained his records and accounts, we conclude that the trial court did not err in approving the amended final accounting.
It is argued that the executor should be liable for compound interest for commingling of funds. We are referred to the case of Vincent v. Werner, 140 Kan. 599, 38 P.2d 687, wherein it is stated:
“The theory argued by the executor and followed by the trial court is that the executor only had to be able to pay the amount of money that had come into his hands as trustee, on demand. This is not the rule. The law is extremely jealous of what is done with the beneficiaries’ money by a trustee. He must keep it by itself. To approve the commingling of the beneficiaries’ money with that of the trustee would subject the trustee to too great a temptation to use this money and cover up the fact with one subterfuge or another. As good a way as any to guard against this is to hold that the trustee is liable to the beneficiaries for compound interest on the money of the beneficiaries which the trustee thus commingles with his own.” (140 Kan. at 605.)
In Vincent, our Supreme Court, in quoting from Purdy v. Johnson, 78 Cal. App. 310, 319, 248 Pac. 764 (1926), made note of the reason for this rule as follows:
“The rule is not adopted for the purpose of punishing the trustee for any intentional wrongdoing in the use of the trust funds, but rather to carry into effect the principle, enforced by courts of equity, that a trustee shall not be permitted to make any profit from the unauthorized use of such funds; it is intended to secure fidelity in the management of trust estates in order to fully realize any profit that the trustee may have made.” (140 Kan. at 605.)
The circumstances in Vincent were that the executor deposited some of the money belonging to the estate in his personal bank accounts in various banks; he kept some of the money belonging to the estate in safety deposit boxes in the bank and in his own safe in his office, having a sufficient amount of money at all times to cover all balances due the estate, but he commingled some of the money of the estate with his own. He was unable to give a clear account of how cash held in the safety deposit box had been accumulated or disbursed. The court assessed compound interest.
We take note here that without the joint tenancy bank account funds which the executor left in the estate account the cash balance of this estate at the outset was $72.85. By December 15, 1969, there was a deficit balance of approximately $1,835.50 and, in the final analysis, the disbursements on behalf of the estate exceeded receipts by the sum of $521.47. We note also that we do not have a situation of estate funds being carried in the personal account of the executor, but rather that personal funds of the executor were deposited to the estate account. Although the commingling of estate funds with those of the executor might normally require the assessment of interest regardless of wrongful intent, it has been held in accordance with the reason for the rule that the mere commingling without any use being made by the executor of the estate funds does not require the assessment of interest. 33 C.J.S., Executors and Administrators § 212, p. 1196. It is to be noted that in the absence of evidence to the contrary it will be presumed that the executor did make use of the funds for his own profit. Estate of Harvey, 224 Cal. App. 2d 555, 36 Cal. Rptr. 788 (1964). In this instance, however, the record establishes that estate funds were not used by the executor for his own profit. It is clear that the executor placed his personal funds in the “estate account” in order to pay obligations of the estate for which funds were not otherwise available. We conclude there is no basis on which to assess compound interest.
Argument is made that because of various alleged acts of misconduct the executor should be denied a fee for his services. The rules in this area were stated in Bessman v. Bessman, 214 Kan. 510, 520 P.2d 1210, as follows:
“ . . . [A] court-appointed fiduciary may be deprived of compensation for the commingling of funds and inadequately accounting for them (In re Estate of Jones, 174 Kan. 506, 257 P.2d 116), or for appropriating money of the estate (In re Simmons Estate, 136 Kan. 789, 18 P.2d 117), or for self-dealing for his own profit (Vincent v. Werner, 140 Kan. 599, 38 P.2d 687) ....
“The rules enunciated in all the foregoing cases are recognized by the American Law Institute in its restatement of both the law of trusts and that of agency. In the former, Restatement (Second) of Trusts, § 243 states:
‘If the trustee commits a breach of trust, the court may in its discretion deny him all compensation or allow him a reduced compensation or allow him full compensation.’
“The authors’ explanatory comments indicate:
‘. . . In the exercise of the court’s discretion the following factors are considered: (1) whether the trustee acted in good faith or not; (2) whether the breach of trust was intentional or negligent or without fault; (3) whether the breach of trust related to the management of the whole trust or related only to a part of the trust property; (4) whether or not the breach of trust occasioned any loss and whether if there has been a loss it has been made good by the trustee; (5) whether the trustee’s services were of value to the trust.’
‘. . . If the trustee repudiates the trust or misappropriates the trust property or if he intentionally or negligently mismanages the whole trust, he will ordinarily be allowed no compensation.’ (Ibid.)” (214 Kan. at 521.)
The acts of misconduct for which appellants would deny the executor a fee are the alleged inadequate accounting and commingling of funds which have been previously discussed. They also point to the pledge of the Brotherhood State Bank stock as collateral for the $4,000 personal loan. Without in any manner intending to indicate approval for his doing so, we again note that by uncontradicted testimony the pledge of that stock was with the prior knowledge and approval of the other interested parties; the proceeds were deposited to the “estate account”; and additional funds from some source were necessary to meet the obligations of the estate. We are unable to find in this record any ulterior motive on the part of the executor with respect to that loan, which has since been repaid by the executor thereby securing a release of the bank stock from the pledge.
A question is also raised with respect to a 1957 Jeep pickup truck valued in the estate at $50 which, at the time of trial, was in the possession of the executor’s son. The trial court found this to be property still on hand in the estate and the original of the accountings indicates that it was a vehicle being used by the family corporation in accordance with arrangements made with the heirs. There does not appear to have been a conversion of this asset.
Appellants contend the executor is guilty of misconduct for delay in settling the estate. K.S.A. 59-1501 [Corrick] provided that the executor should have one year from his appointment to settle the estate. (The period is now nine months. K.S.A. 59-1501 [Weeks].) Since Arthur qualified as executor on September 3, 1969, and did not file his original petition for final settlement until November 6, 1972, there can be no doubt that the time limitation was violated. Although the period for settlement may be extended by the court for cause shown, the record discloses neither request nor extension. However, it does not appear that appellants, or any other party, ever inquired of the executor regarding the closing of the estate or in any manner sought to compel settlement as they could have done under K.S.A. 59-1501. Although an executor may be denied a fee for failure to settle the estate within the statutory time (34 C.J.S., Executors and Administrators § 876, p. 1050), we conclude that such determination rests in the sound discretion of the trial judge (Bessman v. Bessman, supra). We find no abuse of that discretion here.
We come now to the distribution of the Brotherhood State Bank stock. All concerned are agreed that, on the date she executed her will, the testatrix owned but seven and one-half shares of that stock and, on the date of her death, she was possessed of eighty-six shares. During that time she had purchased ten and one-half shares and had sold twenty shares. All are also in agreement that the remainder were acquired by means of stock dividends which, for the purposes of this appeal, are to be treated as stock splits.
By definition, a share of stock is a unit of interest in a corporation. While stock ownership confers no immediate title to any of the property of the corporation, it entitles the shareholders to a proportionate part of the property or its proceeds when distributed according to law and equity. Each share represents a distinct and undivided share or interest in the common property of the corporation. 18 Am. Jur. 2d, Corporations § 209, p. 737; 18 C.J.S., Corporations '§ 194, pp. 619-620.
A stock split is merely a dividing up of the outstanding shares of the corporation into a greater number of units without disturbing the stockholder’s original proportional participating interest in the corporation. It is essentially a change of form and not of substance. 19 Am. Jur. 2d, Corporations § 808, p. 285.
Similarly, a stock dividend represents corporate profits theretofore available for distribution as dividends which are permanently appropriated to fixed capital, the shareholders receiving merely symbols or evidences of such appropriation. The proportionate interest of the shareholder in the corporation remains the same. 19 Am. Jur. 2d, Corporations § 812, pp. 288-289.
Appellants contend that the four bequests of bank stock are specific legacies which, unlike general and demonstrative legacies, carry with them any accretions to the date of death of the testatrix. The executor counters that the bequest to him is specific and the others are general legacies; that the will is clear and unambiguous, is not subject to judicial construction, speaks from the date of death, and therefore each of the others is to receive but two shares and he all of the remainder. He points out that the testatrix is presumed to have known the law and had eleven years between the writing of her will and the date of her death in which to change her will if such was her intention. The executor agrees that a specific legacy carries with it the dividends and additions created by a stock split.
In the case of In re Estate of West, 203 Kan. 404, 454 P.2d 462, legacies, general and specific, were defined as follows:
“A legacy is general when it does not direct the delivery of a particular thing but may be paid or satisfied out of the general assets.” (Syl. 5.)
“A legacy is specific when the bequest is of some definite, specific thing, capable of being designated and identified.” (Syl. 6.)
See also, Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 570 P.2d 1380.
In West, it was also stated:
“The cardinal rule for the construction of wills to which all other rules are subordinate is that the intention of the testator, as garnered from all parts of the will or from the will in its entirety, is to be given effect and that doubtful or inaccurate expressions shall not override the obvious intention of the testator.” (Syl. 4.)
In Myers v. Noble, 141 Kan. 432, 41 P.2d 1021, the court quoted from 73 A.L.R. 1256, note 2, as follows:
“The expression of the ownership of property by such words as ‘my,’ ‘in my possession,’ ‘owned by me,’ ‘standing in my name,’ ‘which I now hold,’ is a well-defined indication that a bequest of that property is a specific legacy.” (141 Kan. at 438.)
See also, Tomb v. Bardo, 153 Kan. 766, 114 P.2d 320. In 6 Page on Wills (Bowe-Parker Revision) § 48.6, pp. 24-25, it is said:
“ . . . The will, taken as a whole, may show that the legacy is specific, although the language of the legacy, if read by itself, and not in connection with the rest of the will, would indicate a general legacy.
“If testator gives a specific number of shares of stock in a specified corporation to a beneficiary, and in a subsequent provision of the will refers to ‘my property,’ including such stock ... or testator gives a number of shares of stock in the same paragraph of his will with specific gifts of personal property . . . such gifts would be specific . . .
In this case, each of the four bequests was of stock of the Brotherhood State Bank; each was of some definite, specific thing capable of being designated and identified; and each was contained in the same paragraph with items of particular identifiable personal property. We hold that all of the bequests were specific, that to Arthur also being such that it would fluctuate, increasing or diminishing, in accordance with the ownership of that stock by the testatrix. (6 Page on Wills [Bowe-Parker Revision] § 48.4.)
We recognize that each case must be viewed on its own merits and that the appellate court must attempt to give effect to the testator’s intent as it perceives it. In re Estate of Lehner, 219 Kan. 100,103,547 P.2d 365. We recognize also the fundamental rule of Kansas law that a will speaks from the date of the testator’s death in the absence of a contrary intent. Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 253, 564 P.2d 472. But the intent of the testator to which supreme importance must be attached must be ascertained from an examination of the entire instrument and, in this instance, must be as of the date the will was published. Berry v. Berry, 168 Kan. 253,212 P.2d 283. We believe it is clear that, in making the specific bequest of two shares of Brotherhood State Bank stock to each of three of her children, the testatrix thereby intended that each should have that proportionate interest in the Brotherhood State Bank which two shares of stock then represented. It is only by allocating to each the additional stock occasioned by the stock splits that this may be accomplished. Neither the briefs of the parties nor our research has provided any direct Kansas authority on the specific issue here presented, but we are convinced that, as counsel for each of the parties has indicated, a specific bequest of corporate stock will carry with it the additions created by a stock split unless a contrary intention is clearly shown. Again, we make note that by agreement of the parties we are dealing with what in effect are “stock splits.” As such, our disposition is in accordance with the general rule. See Annotation, 46 A.L.R.3d 7. Although there is divided authority as to the treatment of additional shares received as “stock dividends,” we are not required to resolve that issue at this time.
We hold that the trial court was in error in its direction as to the distribution of the Brotherhood State Bank stock and that it should be distributed as follows:
To Margaret, Mary, and Howard, the two shares of Brotherhood State Bank stock initially bequeathed to each of them, increased to twenty-four shares by reason of the stock splits on January 10, 1962, and January 17, 1968, and increased to forty-eight shares by reason of the stock split on January 20, 1971, following the death of the decedent;
To Arthur, the remaining one and one-half shares of Brotherhood State Bank stock of which the testatrix was possessed on the date of her will, increased to two shares by the purchase of one-half share on August 29, 1958, increased to twenty-four shares by the stock splits on January 10, 1962, and January 17, 1968, increased to thirty-four shares by the purchase of ten shares on February 19, 1968, reduced by the sale of twenty shares on May 14, 1968, to a total of fourteen shares on the date of decedent’s death, and thereafter increased to twenty-eight shares by the stock split on January 20, 1971. This is by reason of the fluctuating nature of the specific bequest to Arthur.
In a meritorious action brought to construe a will, attorney fees are allowable under the provisions of K.S.A. 59-1504 as costs of litigation where the services of the attorney have been beneficial to the estate or are necessary for proper consideration of the will. Jennings v. Murdock, 220 Kan. 182, Syl. 17, 553 P.2d 846. Appellants should be allowed their attorney fees in such amount as the court may find reasonable.
The judgment entered by the trial court is reversed and this cause is remanded with instructions to enter judgment to conform with this opinion. | [
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Parks, J.;
This is an appeal from the trial court’s allowance of attorneys’ fees in a case in which a petition and cross-petition for divorce were dismissed because no common law marriage existed between the parties. The fees were assessed to the plaintiff. He appeals.
The merits of the divorce action and the decision of the court to dismiss the action are not at issue before this court.
John Foust of Iola, Kansas, was retained by the defendant, Mrs. Scimeca, in 1971. He remained counsel of record for defendant throughout this case. John May of Atchison, Kansas, was consulted briefly about his appearance in this case at an early stage but did not enter into any active part until the contempt citation proceeding was initiated against the defendant. During the pendency of the accusation in contempt proceeding, John May became a petitioner against the defendant, Mrs. Scimeca, in the probate court of Atchison County, Kansas. A jury trial was held and the defendant was referred to the Osawatomie State Hospital. She was a patient in the hospital during much of the time the present case was pending. Defendant was and had been mentally ill for several years.
An interlocutory order requiring plaintiff to pay John Foust $500.00 in attorney fees was issued in December 1971. Defendant retained William Brady in the fall of 1972. Legal services were performed by Mr. Brady’s firm until the conclusion of the case on March 28, 1975. On September 3, 1974, John May was permitted to withdraw from the case as defendant’s counsel. The trial court’s notes of the same date reflect that the question of attorneys’ fees for defendant’s attorneys was reserved to abide the event, including the attorney’s fees of John May.
The trial court in its journal entry dated February 20,1975, and filed March 28, 1975, dismissed the plaintiff’s petition and defendant’s cross-petition and withheld the matter of costs and attorneys’ fees for defendant’s attorneys until further argument could be had thereon.
On April 9th and 10th of 1975, the court heard defendant’s application for reasonable attorneys’ fees for William Brady, John May and John Foust. John Foust did not appear but furnished a letter to the court dated April 3, 1975, and conversed with the judge by telephone regarding his fees. Maurice O’Keefe, Jr., an Atchison attorney, appeared as a witness and testified on the question of the reasonableness of the defendant’s attorneys’ fees.
The following is an excerpt of the journal entry as it related to the awarding of attorney fees:
“Thereafter, and'on April 10, 1975, the matter again came on for hearing from the continuance of the previous day, and at the conclusion of both plaintiff and defendant’s evidence, the court finds that it had reserved its ruling on attorney fees from the previous hearings herein and that plaintiff should be ordered to pay as reimbursement for attorney fees for defendant, payable to the Clerk of the District Court, the sum of Six Hundred Seventy-Five Dollars (S675.00). The court further finds that attorneys William J. Brady and John O. Foust should be paid the sum of Twenty-One Hundred Dollars ($2,100.00) aggregate. The court further finds that John S. May and John O. Foust should be paid the sum of Twenty-One Hundred Dollars ($2,100.00) aggregate. The court finds that the Five Hundred Dollars ($500.00) allowed previously to Mr. Foust is to be in addition to the above allowance. The court further finds that plaintiff pay the costs herein.”
Plaintiff argues that there is no statutory basis for the allowance of attorney fees in a case in which the divorce was dismissed as to both parties.
Plaintiff points out that the court is limited by K.S.A. 60-1606 to provide only for the custody of minor children and division of property when a divorce is refused for any reason other than the fault of the parties. He further points out that K.S.A. 60-1610 provides, “A decree in an action under this article may include orders on the following matters. . . .” He then argues that no decree of divorce or separate maintenance was granted in this case and that we must find the requisite statutory authority for the allowance of attorney fees elsewhere.
In support of his position, plaintiff has cited Gault v. Board of County Commissioners, 208 Kan. 578, 493 P. 2d 238. In Syl. 6, it is stated:
“Attorney fees and expenses of litigation, other than court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific statutory provision therefor. . . .”
Mr. Brady’s firm counters that K.S.A. 60-1610(J), now K.S.A. 60-1610(g), authorizes the court to make such orders as to costs and attorneys’ fees as “justice and equity may require.” Counsel for defendant argues that plaintiff is the party who filed the action; he is the one who caused defendant to obtain legal counsel; he is the one who creáted the necessity for the legal work to be performed on behalf of defendant; and it is plaintiff’s action which resulted in the dismissal of this case. He further argues that defendant should be allowed attorneys’ fees under K.S.A. 60-1607(d).
In opposing the arguments of plaintiff, Mr. John S. May, former counsel for defendant, states that the action of the court in finally allowing the attornéys’ fee is nothing more or less than a continuation of its authority under K.S.A. 60-1607(d).
After a petition for divorce has been filed, the judge may make orders making such provisions, if necessary, for the expenses of suit, including reasonable attorney fees, as will insure to either party efficient preparation for the trial of the case. (K.S.A. 60-1607.)
As we have noted earlier, the previous orders of the trial court held in abeyance any determination of attorneys’ fees until the conclusion of the trial. The only exception was the $500.00 allowance made to Mr. Foust in the early stages of the case.
It is interesting to note from the record that only three-fourths of a day was spent in the actual trial of the case. The remaining time, except as noted later in this opinion, was spent in preparation for the trial of the case.
In Brooker v. Brooker, 199 Kan. 783, 433 P. 2d 363, the court said:
.“Under our statutes K.S.A. 60-1607(d) and K.S.A. 60-16100), now K.S.A. 1965 Supp. 60-1610(/), costs and attorney fees for the preparation and trial of the case may be awarded to either party as justice and equity may require. The district court is vested with wide discretion to determine both the amount and the recipient of an allowance of attorney fees. Such discretion will not be disturbed on appeal unless an abuse of discretion clearly appears from the record. (Craig v. Craig, 197 Kan. 345, 416 P. 2d 297; Crosby v. Crosby, 188 Kan. 274, 362 P. 2d 3; Murray v. Murray, 189 Kan. 679, 371 P. 2d 125.)” (p. 786)
Appellate courts, as well as trial courts, are experts as to the reasonableness of attorneys’ fees and may, in the interest of justice, fix counsel fees when in disagreement with views of the trial judge. (Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681; Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219; Lattner v. Federal Union Ins. Co., 160 Kan. 472, 163 P. 2d 389.)
What has been said disposes of the plaintiff’s argument that there was no statutory basis for allowance of attorneys’ fees in this case. We agree that the trial court had authority to grant attorneys’ fees under K.S.A. 60-1607(d), and correctly concluded that such fees were allowable.
The plaintiff’s argument that the time spent by John S. May, as petitioner against the defendant in the mental illness proceeding and for services rendered after his withdrawal, is not compensable, is more persuasive. We are unable to see how such matters may be considered as part of the preparation for trial in this divorce case. K.S.A. 60-1607 clearly negates the theory that an allowance of fees for such collateral proceedings is authorized.
In this connection, we have concluded that the motion filed by John S. May, former counsel for defendant, for attorney fees and expenses for appeal to this court be denied.
The judgment below is affirmed (a) insofar as the allowance of fees to Mr. Brady and Mr. Foust; (b) insofar as it determined that reimbursement should be made of attorney fees paid by the defendant to the Clerk of the District Court in the sum of $675.00; and (c) insofar as it determined that plaintiff should pay the costs of the action. It is reversed insofar as it required an allowance of attorneys’ fees to Mr. May and Mr. Foust based on the services rendered by Mr. May in the probate court and after his withdrawal. This case is remanded to the trial court for further proceedings in accordance with the views herein expressed. | [
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Rees, J.:
This is an action brought for an accounting and recovery of damages in which it is alleged defendant breached fiduciary duties owed plaintiff while he acted as her guardian.
Defendant was appointed guardian of the estate of plaintiff by order of the Shawnee County Probate Court in 1961. He served in that fiduciary capacity until discharged in 1967. At all times defendant acted as guardian, plaintiff was a minor. Plaintiff’s eighteenth birthday was January 16, 1974.
Suit was filed on March 1,1976. Incorporated into the amended petition was a series of documents entitled “Waiver of Statute of Limitations” signed by defendant. The first of these waivers was dated January 14, 1975, and the last was dated January 30, 1976. It is the last waiver that is in issue.
By reason of the applicable section of our statute of limitations (K.S.A. 60-515), plaintiff was allowed to file her claim within one year after her attainment of majority, or by January 16, 1975.
By each of the waivers, defendant, for the recited consideration of forbearance by plaintiff to file suit, agreed to waive limitations until a specified date. The last waiver reads as follows:
“Clarence J. Gideon, party of the first part, for and in consideration of the forbearance on the part of Linda Barnes, party of the second part, and/or her personal representative from filing a lawsuit at any time prior to January 16, 1975, and in further consideration of the forbearance on the part of Linda Barnes and/or her personal representative from filing a lawsuit at any time prior to and including February 15, 1976, does hereby waive the Statute of Limitations which would otherwise be applicable to any and all causes of action against me by Linda Barnes arising out of my actions as Conservator and/or Guardian of the Estate of Linda Barnes which was administered in the Probate Court of Shawnee County as Case No. 26,592, and this waiver shall remain effective until March 1, 1976, andno longer. ” (Emphasis supplied.)
Where limitations is applicable, it is an affirmative defense and it must be pleaded by the defendant. If the fact that limitations has run does not show on the face of the petition and if defendant does not plead limitations as an affirmative defense, then the bar is not available to defendant as a defense. K.S.A. 60-208(c); Washington Avenue Investments, Inc. v. City of Kansas City, 213 Kan. 269, 515 P.2d 744. Statutes of limitation are statutes of repose, precluding presentation of stale claims and encouraging diligence on the part of those whose rights have been infringed. Welch v. City of Kansas City, 204 Kan. 765, 465 P.2d 951. The practical effect of the theory of repose is that the debtor has the option to assert the statute and defeat recovery. 51 Am.Jur.2d, Limitation of Actions § 16, pp. 601-602.
We are told by the parties that the waiver agreements were made so as to allow time for negotiations for possible resolution of their differences. Whatever may have been the reason, the first question is, what did defendant agree to in this private contract? He could not “extend” the period of limitations, for that is a statutory matter. By the waiver, he agreed that he would not assert limitations as a defense, or, in other words, he agreed to forego an available defense. The waiver did not toll limitations. Tolling is a matter of computation of the period of limitations and it arises by reason of certain factual situations described by statute (such as K.S.A. 60-517 and K.S.A. 60-520), or by reason of conduct that has the effect of estopping defendant’s reliance on limitations. (See for example, Farmers Mutual Automobile Ins. Co. v. Dealers Auto Transport, 192 Kan. 678, 391 P.2d 307.)
Thus, by the last agreement, defendant agreed to forego the assertion of his available defense “until March 1, 1976, and no longer.”
Promptly after filing of the petition, defendant filed a motion for summary judgment. His contention was that the suit was filed too late and plaintiff was barred by limitations. The matter was considered by the trial court solely as a matter of interpretation of the last waiver. No objection to this procedure is shown of record. No evidence was proffered by plaintiff. No opposing affidavits were filed as allowed by K.S.A. 60-256(c). The trial court sustained defendant’s motion and granted summary judgment.
The sole issue decided by the trial court and presented on appeal is whether the waiver agreement by the use of the phrase “until March 1,1976, and no longer” protects plaintiff against the defense of limitations.
One additional fact is relevant. March 1, 1976, fell on a Monday. Therefore, as a practical matter, plaintiff would have had to file her petition on Friday, February 27, if March 1 was excluded from the time during which defendant agreed to forego the defense of limitations.
The trial court held that under the terms of the agreement plaintiff had to file her petition prior to March 1. By reliance upon dictionary definitions of the word “until,” he held that plaintiff’s right to file free of the limitations defense did not exist on March 1. We agree.
One contention of plaintiff is that K.S.A. 60-206 is applicable. The pertinent part of that statute is as follows:
“(a) In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. . . . When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.”
This contention is without merit. There is no computation of time in the case before us. That is to say, there is no period of time, such as 60 days or two months, that commences as of a particular date (“the day of the act, event or default from which the designated period of time begins to run”) with regard to which the expiration of the period is to be computed. Here the expiration date is expressly stated. Further, there is involved here a matter of private contract and not a period of time prescribed by statute, rule, regulation or court order.
The other contention of plaintiff is that the word “until” and the phrase “until March 1, 1976, and no longer,” means March 1 was to be included. To buttress her argument, plaintiff argues that to hold otherwise effectively deprived her of the capability of filing suit on February 28 and 29 since those dates fell on Saturday and Sunday, non-business days of the clerk of the district court.
The case law of Kansas is contrary to plaintiff’s second contention. Although Kansas cases defining “until” and applying that word to various circumstances are not of recent vintage, they are consistent. The relevant cases are Croco v. Hille, 66 Kan. 512, 72 Pac. 208; State v. Bradbury, 67 Kan. 808, 74 Pac. 231; State v. Dyck, 68 Kan. 558, 75 Pac. 488; Maynes v. Gray, 69 Kan. 49, 76 Pac. 443; The State v. Burton, 70 Kan. 199, 78 Pac. 413; The State v. Horine, 70 Kan. 256, 78 Pac. 411; Buck’s Stove and Range Company v. Davidson, 70 Kan. 885, 79 Pac. 119; Lightner v. Insurance Co., 97 Kan. 97, 154 Pac. 227; and Dobson v. Wilson & Co., Inc., 152 Kan. 820, 107 P.2d 676.
In Croco, the court noted earlier conflicting decisions of different panels of the Kansas Court of Appeals in Refining Co. v. Peterson, 8 Kan.App. 316, 55 Pac. 673, and Garden City v. Bank, 8 Kan.App. 785, 60 Pac. 823. Croco involved an allowance of time granted by the court that was expressed as “until June 20.” It was held that action by the plaintiff on June 20 was untimely. The court said:
“The point raised involves the question whether the word ‘until,’ used in the order of the court, means ‘to’ or ‘up to’ June 20, so as to exclude that date, or whether service on the day named was in time. Webster, in defining the word, says that in contracts and like documents ‘until’ is construed as exclusive of the date mentioned, unless it was the manifest intent of the parties to include it. The Century Dictionary also gives the exclusive signification to the word. The question was before the court of appeals in Refining Co. v. Peterson, 8 Kan.App. 316, 55 Pac. 673, and in Garden City v. Bank, 8 id. 785, 60 Pac. 823. It was decided both ways. In the first case the decision was rested on the language of the statute, which provides:
“ ‘The time within which an act is to be done shall be computed by excluding the first day and including the last.’ (Gen. Stat. 1901, § 5218.)
“This provision, however, is not applicable to the language of the order of the court under consideration. If an act is to be done within a certain number of days, the statute is controlling. Here, the order was that the time ran ‘until’ a day certain.” (66 Kan. at 513.) (Emphasis supplied.)
In Bradbury, defendant was given “to the fifth day of the regular June, 1902, term of court” in a court order to file a bill of exceptions, and action by the defendant on that day was approved.
Dyck involved a court order using the words “until May 4.” Action on May 4 was held untimely. Croco was followed and approved. Croco and Bradbury were held to be consistent. Bradbury was said to involve the rule exception that “where it is the manifest intention of the parties to include the last day, such intention will be given effect.”
Maynes cites and follows Garden City, Croco and Dyck, and the stated date was excluded.
Horine cites and follows Brandbury and Dyck and found manifest intent that the stated date be included. It found “until” to be controlled by the context of the court order.
Burton follows Croco and Dyck and states that Bradbury and Horine involve the manifest intent exception.
Buck’s Stove follows Croco, Dyck and Maynes. The last day fell on a Sunday and the court held that the then existing version of K.S.A. 60-206 was not applicable where a specific date was stated.
Lightner was an insurance contract case which involved a grace period that ran on a Sunday. There was not a stated date. The court approved action on Monday.
Dobson involved a statutory period, not a stated date. The period ran on Sunday and action on Monday was approved.
Although it appears there may be contrary decisions in other states, the Kansas case law applicable to the particular case before us is in accord with the trial court decision. There is no manifest intent disclosed by the waiver agreement that action on March 1 was to be free of defendant’s assertion of the defense of limitations.
In Buck’s Stove, it is said:
“The time was extended to August 10, 1903. This required the service to be made before the expiration of the 9th of August. (Citations omitted.)
“However, August 9, 1903, fell on Sunday, and it is urged that the time for service was thereby extended by virtue of section 722 of the code of civil procedure (Gen. Stat. 1901, § 5218), which reads as follows:
“ ‘The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.’
“It was held in Croco v. Hille, supra, that this section did not apply to a case like this, and that the time of service was not thereby extended. We see no reason for changing the rule there laid down.” (70 Kan. at 885-886.)
In this case, we find ourselves bound by the Croco rule.
Included in plaintiff’s amended petition is an alternative claim based on fraud. It is alleged that, if it is held that plaintiff’s primary claim is barred by limitations, defendant fraudulently promised to not interpose the defense of limitations if plaintiff filed her lawsuit on or before March 1, 1976. The summary judgment of the trial court included within its scope this alternative claim. The propriety of summary judgment on the fraud claim was not raised on appeal and the contention that it was improper must be deemed abandoned.
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Larson, J.:
In this appeal, we are asked to determine whether the $100 application fee imposed upon defendants who seek appointed counsel from the Board of Indigents’ Defense Services (BIDS) violates an indigent defendant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Although this issue was not raised below, we reach the constitutional arguments and hold that K.S.A. 22-4529 is constitutional for the several reasons we state herein.
The record reflects that Cynthia Casady was charged in a three-count complaint with possession of a prescription drug without a prescription, possession of marijuana, and possession of drug paraphernalia. On May 9, 2007, pursuant to a plea agreement, Casady pled no contest to illegal possession of a prescription drug and the State dismissed the other two charges.
Casady’s motion for a downward departure by her court-appointed counsel was denied, and she was sentenced to 30 months’ imprisonment in the custody of the Department of Corrections. The court assessed a $100 BIDS application fee which was not objected to by Casady. The district court waived the BIDS attorney fee after determining Casady was unable to pay such amount. The district court ordered Casady s court costs and the $100 BIDS application fee to be paid out of a $500 cash appearance bond that had been deposited with the clerk of the court.
Notice of appeal was timely filed.
Casady s only argument on appeal is that K.S.A. 22-4529 is an unconstitutional recoupment statute that violates the Sixth and Fourteenth Amendments of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because it imposes a mandatory $100 application fee on all defendants who seek appointed counsel.
Casady argues we have jurisdiction to review her argument even though she did not object to the assessment of the fee at sentencing or raise any constitutional issues below because it is necessaiy to serve the ends of justice or to prevent the denial of a fundamental right relying on State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982).
The State argues that the BIDS application fee assessment should be affirmed because Casady did not object below or present any evidence that the imposition of the fee would cause manifest hardship. The State further argues the statute is constitutional because it satisfies all the requirements for a recoupment statute set forth in Olson v. James, 603 F.2d 150 (10th Cir. 1979).
Additionally, the State argues the district court properly examined the burden that payment of both the BIDS application fee and BIDS attorney fee would impose upon Casady when it determined the assessment of the BIDS application assessment would not be unduly burdensome but specifically found “that the defendant’s financial condition is such that she can not pay the BIDS attorney fees.”
The State in its brief also relied upon our Court of Appeals opinion in State v. Hawkins, 37 Kan. App. 2d 195, 152 P.3d 85 (2007), that stated: “At a minimum, K.S.A. 2006 Supp. 22-4529 requires a criminal defendant to object to the payment of the BIDS application fee on the basis of a manifest hardship.”
Because the State fully responded to Casady’s constitutional arguments; our Supreme Court accepted review and has recently opined on the BIDS application fee process in State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008); and K.S.A. 22-4529 is utilized in a large number of criminal cases, we reach and consider the issue of its constitutionality.
Whether a statute is constitutional is a question of law over which appellate courts have unlimited review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). We are further guided by the following rules in considering the constitutionality of a statute:
“ ‘ “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 the infringement of the superior law is clear beyond reasonable doubt.” ’ [Citation omitted.]” State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).
The applicable statute in issue in this case, K.S.A. 22-4529, states in its entirety:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of $50 for the period commencing on the effective date of this act and ending on June 30, 2004, and the amount of $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee. All moneys received pursuant to this section shall be remitted to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit tire entire amount in the state treasury to the credit of the indigents’ defense services fund. If the defendant is acquitted or the case is dismissed, any application fee paid pursuant to this section shall be remitted to the defendant.”
The record further reflects that when Casady requested the appointment of counsel the application she signed on March 27, 2007, contained the following statement:
“C. Repayment to the State
“The court shall take into account the financial resources and the nature of the burden that payment of such sum will impose. Any person who has been required to pay such sum and who is not willfully in default may petition the sentencing court to waive payment of any remaining balance or portion thereof.”
The precise procedure outlined in the recent Hawkins case by the Court of Appeals, 37 Kan. App. 2d at 197-201, and the Kansas Supreme Court opinion, 285 Kan. at 849-54, was not followed in our case with the BIDS application fee being assessed at the time of sentencing. However, the district court raised Casady’s financial position sua sponte and determined that she was not able to pay the BIDS attorney fee but there were funds available from her $500 cash bond being held by the clerk from which the BIDS application fee was ordered paid.
We need not recite in their entirety the holdings of the Hawkins case, but in response to Casady’s argument here that the decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), governed as to both the BIDS attorney fee and the application fee, Justice Johnson, in Hawkins, 285 Kan. at 851, opined:
“In short, the provisions of K.S.A. 2006 Supp. 22-4513 upon which Robinson was based were not intended to apply to the application fee. Instead, a determination is to be made at the time that a defendant applies for counsel as to whether ‘payment of the application fee will impose manifest hardship on the defendant.’ K.S.A. 2006 Supp. 22-4529.”
While the district court in our case did not use the “manifest hardship” wording, it has been shown that Casady s financial condition was appropriately considered when the BIDS application fee was assessed.
Our review of the two Hawkins’ opinions, which district judges receiving requests for court-appointed counsel are obligated to follow in determining whether to assess a BIDS application fee, shows that K.S.A. 22-4529 was constitutionally applied by the district court in the appeal before us.
When district courts follow the teachings and direction of the Hawkins opinions, the wording of K.S.A. 22-4529 passes constitutional muster as has been directed by the Tenth Circuit Court of Appeals and the United States Supreme Court.
Our analysis of those decisions begins with recognizing that K.S.A. 22-4529 is a recoupment statute because it is assessed to reimburse the State of Kansas for portions of the cost of a defendant’s legal representation. A recent unpublished decision from our court, State v. Stevens, No. 97,640, filed June 20, 2008, held that the BIDS application fee was assessed for recoupment of money but is not a part of the sentence imposed and is not punitive in nature. This holding is supported by the fact that although the application fee may be assessed at the time the defendant applies for court-appointed counsel, the fee is refunded to the defendant if he or she is acquitted or the case is dismissed. Hawkins, 285 Kan. at 851. Although K.S.A. 22-4529 may be a recoupment statute, it is not unconstitutional if the necessaiy safeguards exist and are applied.
In arguing K.S.A. 22-4529 is unconstitutional as written, Casady contends it is because the BIDS application fee is automatically assessed. The plain wording in the statute that “[i]f it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee” shows Casady s argument is erroneous. The application fee is not to be automatically assessed.
In fact, K.S.A. 22-4529 is constitutional as tested against the guidelines established by Olson v. James, 603 F.2d 150 (10th Cir. 1979), for analyzing recoupment statutes. The Olson court held that an earlier Kansas BIDS attorney fee statute was unconstitutional in part because of “its lack of proceedings which would determine the financial condition of the accused.” 603 F.2d at 155.
The Olson decision relied in part on an earlier decision involving a Kansas statute;James v. Strange, 407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972), but principally on Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974), which upheld an Oregon statutory scheme for recoupment by the state from a convicted defendant of the cost of providing him or her with effective representation of counsel. The wording of Fuller v. Oregon states: “Those who remain indigent or for whom repayment would work ‘manifest hardship’ are forever exempt from any obligation to repay.” 417 U.S. at 53.
The Olson v. James decision set forth the following general guides which were gleaned from James v. Strange and Fuller v. Oregon:
“[1] First, a requirement of repayment is to be imposed only upon a convicted (not an acquitted) defendant or one whose conviction is reversed on appeal.
“[2] Second, a court should not order a convicted person to pay these expenses unless he is able to pay them or will be able to pay them in the future considering his financial resources and the nature of the burden that payment will impose. If a person is unlikely to be able to pay, no requirement to pay is to be imposed.
“[3] Third, a convicted person on whom an obligation to repay has been imposed ought at any time be able to petition the sentencing court for remission of the payment of costs or any unpaid portion thereof. The court should have tire power to issue remittitur if payment will impose manifest hardship on the defendant or his immediate family.
“[4] Fourth, if the convicted person shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on Iris part to malee a good faith effort to make the payment, he ought not be held in contempt.” 603 F.2d at 155.
K.S.A. 22-4529, when applied under the directions of our recent Hawkins opinions, complies with the directions of Olson v. James which are necessary to allow a recoupment statute to be constitutional.
The last sentence of the statute satisfies the fact that payment of the BIDS application fee is to be imposed only on a convicted defendant.
The language of K.S.A. 22-4529 which states: “[i]f it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee” shows the manifest hardship test is to be applied not only at the time the application fee may be assessed but at any time during the proceedings wherein payment of such a fee remains the obligation of the defendant.
The application for counsel made by Casady in this case specifically stated that “any person who has been required to pay such sum and who is not willfully in default may petition the sentencing court to waive payment of any remaining balance or portion thereof.” This shows the district court’s continuing jurisdiction over the assessment and collection of the BIDS application fee. This satisfies the third paragraph of the Olson v. James guides previously set forth.
There is no direct statement in K.S.A. 22-4527 relating to a contempt finding against a defendant as is referred to in paragraph [4] of the Olson v. James guides. But, we point out that the Kansas Constitution Bill of Rights § 16 specifically prohibits a person from being imprisoned for failure to pay a debt as it states: “No person shall be imprisoned for debt, except in cases of fraud.” We are further bound by the teachings of Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), which we followed in City of Wichita v. Lucero, 255 Kan. 437, 874 P.2d 1144 (1994), in an opinion which relied on the following quote from State v. Higgins, 240 Kan. 756, 759, 732 P.2d 760 (1987): “In recent years, the courts in this country have taken a rather firm position holding that it is constitutionally impermissible to incarcerate an indigent criminal defendant merely because he does not have the money to pay the fine or make restitution as a condition of his probation.” See also State v. Ferguson, 271 Kan. 613, 618, 23 P.3d 891 (2001) (It is an abuse of discretion when the court “ ‘automatically revokes probation due to nonpayment of restitution.”); State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985) (automatic revocation and imprisonment of a probationer is constitutionally prohibited without a full inquiry of the reasons for failure to satisfy a financial obligation).
We are satisfied that constitutionally required court consideration for the assessment and collection of a BIDS application fee is present in the provisions of K.S.A. 22-4529 to satisfy all constitutional mandates of the Kansas Constitution Bill of Rights and the United States Constitution.
The district court is affirmed. | [
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Buser, J.:
Cynthia Crim filed a pro se petition for protection from abuse (PFA) against her former husband, Brian Crim, pursuant to the Protection From Abuse Act (PFAA), K.S.A. 60-3101 et seq. The district court dismissed the petition for lack of jurisdiction. Cynthia filed a motion to set aside the dismissal, which the district court denied. She appeals the district court’s dismissal of the petition and denial of the motion to set aside the dismissal. We reverse the district court’s dismissal of the petition and remand for further proceedings.
Factual and Procedural Background
Cynthia and Brian were married in 2001 but had been separated since the summer of 2006. The Crims had legal custody of their two minor children. Cynthia also had legal custody of another minor child from a prior relationship. Cynthia had previously filed a petition for protection from abuse in Douglas County on June 12, 2006, for herself and the two oldest children. On January 23, 2007, Cynthia completed and filed a standardized form petition for protection fi'om abuse against Brian. She filed the petition pro se while noting the name of her attorney on the form.
In her petition, Cynthia alleged Brian “willfully placed me in fear, by physical threat, of imminent bodily injury” on January 17 and January 19-21, 2007. In response to the form petition’s directive to “[d] escribe the factual basis for your requesting a protection from abuse order,” Cynthia handwrote:
“During Brian’s visit with our children he drove around Olathe searching for me with an unheated vehicle. Left message ‘you better get home, I’m staring at the back of your head right now.’ (Jan. 17, 07)
“After picking up our children for his weekend visit he called me within 15 minutes ‘you need to tell me where you will be this weekend.’ Brian preseeded [sic] to call me constantly throughout the weekend demanding to know where I was and that I needed to call him back. Friday night he left me a message ‘your baby is not breathing, call me back imedeatly [sic].’ Brian loaded the 3 children into his unheated car and searched for me until Saturday 3:00 when he stopped his car in the midelle [sic] of 2300 rd. attempting to block my path I drove around and called 911 he followed pulled around in front of me and Braked, I went around repeated several times down 33 hw. (Case #03-07-186)
“Sunday morning Brian left numerous voice mails threating [sic] to ‘lack in my door’ if I didn’t call him back. He also said he was going to let our children starve and freaze [sic] if I didn’t return these calls (recorded on voice mail), [sic] He left me a measage [sic] saying he would ‘make my parents pay’, [sic] (They were helping me hide this weekend), [sic] I have spent the entire weekend terrified of him and for my childrens [sic] safety.”
Cynthia requested a temporary restraining order to restrain Brian from abusing, molesting, and interfering with the privacy rights of herself and the minor children, and from entering or com ing on her property. She also requested temporaiy custody of the minor children and supervised visitation for Brian. Cynthia indicated that she would request a permanent restraining order at the hearing on her petition. In particular, she requested that the court restrain Brian from abusing, molesting, and interfering with her privacy rights, sought custody of the minor children, and requested establishment of visitation rights with regards to the minor children.
On the same day the petition was filed, the district court summarily dismissed it without prejudice. The order indicated the reason for the dismissal was “insufficient allegations for jurisdiction.” The order also contained the following statement: “Petitioner should seek to modify the custody/visitation temporary orders in the divorce case 2006 DM 606 entered on December 22, 2006. Petitioner should follow the Amended Temporaiy Parenting Plan and seek mediation of disputes as required by the Parenting Plan.”
Through counsel, Cynthia filed a motion to set aside the dismissal. Brian filed a motion to quash, arguing that a hearing had already been set regarding temporary custody in their divorce case.
At the hearing on Cynthia’s motion to set aside the order of dismissal, she withdrew the portion of the petition relating to the children because the parenting time and custody issues had been resolved die day before in the divorce proceeding. Nevertheless, Cynthia reaffirmed the portion of the petition relating to Brian’s contact with her.
After argument, the district court stated that it had reviewed Cynthia’s PFA petition and case file, her 2006 PFA petition, and the pending divorce case file. The district judge concluded:
“So, considering all of that information together I, in evaluating the petition and considering the fact that a hearing had just been held in the domestic case and temporary orders had just been issued in the domestic case prior to — shortly before this petition was filed, I determined that the allegation, taking all of them as true as set forth by the petitioner, that the written description of what happened didn’t — did not meet the requirement of the protection from abuse act in establishing the findings of intentionally causing bodily injury, intentionally attempting to cause bodily injury, or the fear of eminent bodily injury by threat.”
The district court acknowledged the parties had a “horrible relationship” and that their relationship did not seem to be improving despite their many court appearances. The district court concluded that the allegations in the petition did not “meet the requirements for the act under the context of all of that information that I described.”
In its journal entry filed after the hearing, the district court explained its decision to deny the PFA petition without a hearing:
“On January 23, 2007, petitioner filed the second protection from abuse case, five days after the judge in Division 3 entered the agreed parenting plan. Petitioner requested sole custody and sought to revisit the previously entered visitation orders of the judge in Division 3. The allegations in the petition for a temporary order of protection from abuse was [sic] construed in favor of the petitioner with her allegations considered as true and was denied, without a hearing, due to insufficient allegation for jurisdiction and after the Court took judicial notice of the parties’ prior proceedings in district court over the last 6 months relating to custody and visitation of their child [D.]. The parties were instructed to seek modification of the parenting plan entered in the divorce case and to seek mediation to resolve any disputes relating to parenting as was ordered by the judge in the divorce case.”
The district court did not specifically address Cynthia’s allegations that she was afraid due to Brian’s physical threats of imminent bodily injury.
Cynthia timely appealed the district court’s order dismissing her PFA petition and her motion to set aside the dismissal of her petition.
Discussion
On appeal, Cynthia contends the district court erred in dismissing her PFA petition due to insufficient allegations to establish jurisdiction. Cynthia argues the petition contained sufficient allegations of abuse to confer jurisdiction upon the district court. She maintains that her allegations in the petition show that Brian willfully placed her in fear, by physical threat of imminent bodily injury, and that the district court improperly considered the underlying divorce and child custody proceedings in reaching its decision to dismiss. Brian did not file an appellate brief.
Whether the district court had jurisdiction over Cynthia’s PFA petition is a question of law over which this court’s scope of review is unlimited. See In re Marriage of Wherrell, 274 Kan. 984, 987, 58 P.3d 734 (2002). Additionally, a ruling on a motion to set aside judgment pursuant to K.S.A. 60-259 will not be reversed on appeal absent a showing of abuse of discretion. Subway Restaurants, Inc. v. Kessler, 273 Kan. 969, 977, 46 P.3d 1113 (2002). An abuse of discretion may be found if the district court’s decision goes outside applicable legal standards. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). Accordingly, an appellate court reviews whether the district court’s discretion was guided by erroneous legal conclusions. State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006).
The PFAA contains a provision specifically governing jurisdiction, which provides that any district court shall have jurisdiction over all proceedings under the protection from abuse act. K.S.A. 60-3103. To seek relief under the PFAA, an intimate partner or household member may file a verified petition with any district judge or with the clerk of the court alleging abuse by another intimate partner or household member. K.S.A. 60-3104(a). In part, abuse is defined as
“the occurrence of one or more of the following acts between intimate partners or household members:
“(1) Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury.
“(2) Intentionally placing, by physical threat, another in fear of imminent bodily injury.” K.S.A. 60-3102(a).
The PFAA shall be liberally construed to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se. K.S.A. 60-3101(b).
The district court dismissed Cynthia’s petition “[d]ue to insufficient allegations for jurisdiction.” In the petition, Cynthia identified several incidents allegedly perpetrated by Brian against Cynthia, including harassing phone calls and voice messages threatening violence against Cynthia, her children, and her parents, and driving his vehicle in a reckless manner which threatened the safety of Cynthia and her children. These actions, construed liberally to facilitate the PFAA’s stated goal of promoting access to judicial protection for victims of domestic abuse, satisfied the stat utory definition of abuse sufficient to establish jurisdiction with the district court. As our court has previously stated in a related context, there is no bright-line rule that the victim must actually show that she or he has shed blood or suffered real physical pain in order to obtain an order which may avoid that outcome. Trolinger v. Trolinger, 30 Kan. App. 2d 192, 197, 42 P.3d 157 (2001), rev. denied 273 Kan. 1040 (2002).
The statutory scheme of the PFAA is designed to promote protection of victims and malee access to the courts prompt and easy. Trolinger, 30 Kan. App. 2d at 198. Because the district court’s determination that it lacked jurisdiction over Cynthia’s petition was in error, the district court’s decision to deny Cynthia’s motion to set aside the dismissal was guided by an erroneous legal conclusion.
Finally, in its determination that it had no jurisdiction to proceed on Cynthia’s PFA petition, the district court denied considering related matters, such as the Crims’ divorce proceeding, the prior PFA petition filed by Cynthia, and the remedies available to Cynthia in the divorce proceeding or possible criminal prosecution. Still, the district court mentioned these related matters frequently in its analysis of Cynthia’s PFA petition.
We reaffirm that ongoing divorce proceedings are not a jurisdictional bar to an individual pursuing a claim under the PFAA. The PFAA explicitly states that the remedies it provides are “in addition to any other available civil or criminal remedies.” K.S.A. 60-3109; see Myers v. Myers, No. 92,628, unpublished opinion filed June 24, 2005.
The dismissal of the petition is reversed, and the matter is remanded for further proceedings in accordance with K.S.A. 60-3106. | [
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Marquardt, J.:
Frick Farm Properties, L.P., (Frick Farm) appeals the Department of Agriculture, Division of Water Resources’ (DWR) order terminating its water right. We affirm.
On November 4, 1982, a certificate of appropriation was issued to Bernard J. Debes for Water Right, File No. 17,125 (water right) in Pawnee County, Kansas. Frick Farm, owned by Kent and Karen Frick, purchased Debes’ real estate, including the water right, on November 22, 2002. In January 2003, Debes received notice from the DWR that water had not been used under the water right for 3 years. Debes took the letter to Frick Farm and discussed it with the Fricks. Frick Farm then submitted a water use statement.
On January 9, 2004, Frick Farm was sent a letter notifying it that no beneficial use of water had been reported for 3 years and the water right would be terminated if the period of nonuse extended to 5 years. The Fricks were asked to report the reasons for their nonuse of the water right, and provided a list “as a guide in reporting in your own words the specific situation for your water right(s).”
Frick Farm responded to the DWR’s request, stating that Debes’ ongoing health problems prevented him from using the water right, and Frick Farm had purchased the property in October 2002.
In August 2004, the DWR sent two letters to Frick Farm with a copy of the “draft verified report” for its review. The DWR advised Frick Farm that the verified report would be used as prima facie evidence to support the DWR’s conclusion that the water right had been abandoned. The letters also provided Frick Farm with notice and the opportunity to provide further information not documented in its water use reports or the verified report.
Corinne Curran, a representative of tire chief engineer of the DWR, began an investigation of the water right in September 2004. The verified report was delivered to Frick Farm on October 15, 2004, which stated that for the years 1985 through 2003, there was nonuse of the water right without due and sufficient cause. Attached to the verified report was a copy of K.A.R. 5-7-1, which provided an exhaustive list of the evidence Frick Farm could have presented to prove due and sufficient cause for nonuse of the water right. Notice of a hearing to determine if the water right was abandoned and terminated was delivered to Frick Farm on November 17, 2004.
On March 15, 2005, a hearing was held to determine whether there had been an abandonment of the water right. On January 6, 2006, the chief engineer issued an order with the following findings of fact and conclusions of law: (1) Frick Farm did not establish due and sufficient cause for the nonuse of water for two periods exceeding 5 years; and (2) manifest injustice would not result if the water right was declared abandoned and terminated.
Therefore, the water right was declared abandoned and terminated.
Frick Farm petitioned for administrative review. The Secretary of Agriculture denied the petition for review. Frick Farm moved to set aside the denial, which was denied as well.
Frick Farm timely petitioned for judicial review of die DWR order and the denial of its petition for administrative review. Frick Farm argued that the water right was a real property right and that in terminating the water right, DWR committed numerous procedural errors and misapplications of law.
The district court affirmed the DWR order and held: (1) the DWR did not erroneously interpret or apply K.S.A. 2007 Supp. 82a-718(a); (2) K.A.R. 5-7-1 does not impermissibly shift the burden of proof; (3) the termination of the water right was supported by substantial competent evidence; (4) equity principles are inapplicable to the present action; (5) K.S.A. 2007 Supp. 82a-718 did not deprive Frick Farm of due process; and (6) Frick Farm did not meet its burden of proof to refute DWR’s verified report. Frick Farm timely appealed to this court.
I. Standard of Review
The standard of judicial review of a state administrative agency action is controlled 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). Under the KJRA, the scope of review is somewhat broader than the traditional scope of review. Womans Club of Topeka v. Shawnee County, 253 Kan. 175, 180, 853 P.2d 1157 (1993). A court reviewing an administrative agency’s action shall grant relief only if it determines one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
II. Water Right as a Property Right
Frick Farm contends the Water Appropriation Act, K.S.A. 82a-701 et seq. (the Act), creates a property right that cannot be forfeited unless the State proves every element of forfeiture.
Determination of this issue requires statutory interpretation, which is a question of law; however, special rules apply when reviewing an administrative agency’s interpretation or application of a law. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
“If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 70, 150 P.3d 892 (2007).
Deference to an agency’s interpretation is particularly appropriate if the agency has special competence and experience. However, the final construction of a statute lies with this court. Coma Corporation, 283 Kan. at 629.
A state may create a property right and then place conditions on the retention of that right. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 617, 132 P.3d 870 (2006). The scope and conditions of a property right are determined by statute. See Maas v. Huxtable & Assocs., Inc., 23 Kan. App. 2d 236, 240, 929 P.2d 780 (1996).
A water right in Kansas is a
“vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.” K.S.A. 2007 Supp. 82a-701(g).
Ail water within the state of Kansas is dedicated to the use of the people of the state and is subject to the control and regulation in the manner prescribed. K.S.A. 82a-702.
All appropriations of water must be for a beneficial use. A water right can be terminated if there is no beneficial use of the water without due and sufficient cause for 5 successive years. K.S.A. 2007 Supp. 82a-718(a).
Under K.S.A. 2007 Supp. 82a-732(a), a water right owner is required to file an annual water use report on the form provided by the DWR chief engineer. Additionally, “[t]he report shall completely and accurately set forth such water use information requested by the chief engineer.” K.S.A. 2007 Supp. 82a-732(a). The water use reports from 1985 to 2003 did not show any water usage and failed to state due and sufficient cause for the nonusage. At the top of the yearly report form, it clearly states: “IF YOU DID NOT USE WATER, YOU MUST REPORT THE REASON FOR NON-USE TO HELP PROTECT YOUR WATER RIGHT.”
This form put Debes and Frick Farm on notice that they were required to provide the amount of water usage to the DWR each year, and if no water was used, they had to provide a reason for the nonusage.
Prior to termination of a water right, the chief engineer must conduct a hearing, and the chief engineer s decision is subject to review by the Secretary of Agriculture. K.S.A. 2007 Supp. 82a-718(a); K.S.A. 2007 Supp. 82a-1901(a). When a verified report which shows nonuse of the water right without due and sufficient cause for 5 successive years is admitted at a hearing before the DWR, it is prima facie evidence of abandonment and termination. K.S.A. 2007 Supp. 82a-718(a); K.A.R. 5-7-1(d). Prima facie evi dence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a verdict in favor of the issue which it supports, even though it may be contradicted by other evidence. Van Brunt, Executrix v. Jackson, 212 Kan. 621, 623, 512 P.2d 517 (1973).
The legislature created the water rights statutes and also provided for forfeiture of a water right. This means that Frick Farm’s water right can be forfeited and terminated if the procedures set out in the statutes are followed. The DWR followed the procedures outlined in the statutes in terminating the water right, and Frick Farm’s due process rights were not violated.
III. Burden of Proof at a Water Bight Forfeiture Hearing
Frick Farm contends the DWR treated die verified report as conclusive evidence of forfeiture of the water right, without evidence supporting the claim. The DWR, however, argues that the verified report was prima facie evidence which Frick Farm had the burden to rebut.
The determination of which party has the burden of proof is a question of law over which this court has unlimited review. In re G.M.A., 30 Kan. App. 2d 587, 593, 43 P.3d 881 (2002).
Administrative agencies are creatures of statute, and their power depends on the authorizing statutes; therefore, any exercise of authority claimed by an agency must come from the statutes. American Trust Administrators, Inc. v. Kansas Insurance Dept., 273 Kan. 694, 698, 44 P.3d 1253 (2002). Administrative regulations have the force and effect of law. K.S.A. 77-425. Moreover, administrative regulations are presumed valid, and the party challenging the regulation bears the burden to show invalidity. In re Tax Appeal of City of Wichita, 277 Kan. 487, 495, 86 P.3d 513 (2004). When interpreting such regulations, this court grants considerable deference to the agency’s interpretation of its own regulations, which should not be disturbed unless that interpretation is clearly erroneous or inconsistent with the regulation. Tonge v. Werholtz, 279 Kan. 481, 484, 109 P.3d 1140 (2005).
K.S.A. 82a-706 and K.S.A. 82a-706a give the chief engineer of the DWR authority to enforce and administer water right laws and, in doing so, provide the chief engineer with authority to promul gate rules and regulations. The chief engineer promulgated K.A.R. 5-7-1(d), which in the instant case required Frick Farm to show due and sufficient cause for any nonuse established by the verified report.
K.A.R. 5-7-1(d) states that when a verified report establishes nonuse of a water right for 5 successive years, the water right owner has the burden of showing that there have not been 5 or more successive years of nonuse without due and sufficient cause.
The Hawley court discussed the history of Kansas water rights, the loss of a water right, and whether the statute was a forfeiture or abandonment statute. The court stated:
“[T]he legislature’s chosen language which follows ‘shall be deemed abandoned and shall terminate,’ i.e., ‘when [1] without due and sufficient cause [2] no lawful, beneficial use is henceforth made of water under such right for 5 successive years’ clearly means that unless the water right holder demonstrates satisfaction of one of those two conditions at the hearing, those rights shall terminate by operation of law. In the further words of the statute, the right is then ‘abandoned and terminated’ by declaration. See K.S.A. [2007] Supp. 82a-718(a). [Citation omitted.]” 281 Kan. at 622.
Frick Farm had the burden of proof to show lawful and beneficial use of the water, or due and sufficient cause for nonuse, which it failed to do. There is substantial evidence to support the termination of Frick Farm’s water right.
Affirmed. | [
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Greene, J.:
K.L., the unwed natural father of Baby Boy M., challenges the termination of his parental rights and the adoption of his child, arguing that the district court in Kansas either lacked jurisdiction or should have declined jurisdiction and that the record lacks evidence to support a termination of his parental rights. Although we conclude the court had jurisdiction, we conclude the district court failed to make the requisite findings to determine if it should decline jurisdiction or to support a termination of parental rights, thus requiring that we reverse and remand for further proceedings before a different district judge.
Factual and Procedural Overview
K.L. and C.M., the natural mother of Baby Boy M., have known each other since childhood. They dated for 2 months in late 2005 and again in mid-2006, while residing in Wisconsin. The relationship resulted in the conception of this child, and there has been no dispute as to K.L.’s paternity. C.M. advised K.L. of her pregnancy in July 2006, but in September 2006, K.L. advised that he would not marry her but he would support her and the baby. This advice apparently provoked C.M. to move to Minnesota to live with a friend, but within a month or so, C.M. moved to Kansas and concealed this move and her new residence from K.L. for some time.
The record shows K.L. made numerous attempts to locate C.M. but was not successful until an e-mail message in March 2007, wherein he stated he wanted to meet his child and know that the baby was safe. C.M. returned an e-mail message to K.L. but persisted in her refusal to disclose her residence. On April 3, C.M. gave birth to Baby Boy M. in Topeka, Kansas, and relinquished her rights to the child the next day.
On April 4, 2007, K.L. filed in Wisconsin a motion for primary physical placement and sole legal custody of the child, supported by an affidavit averring in part that C.M.’s residence was unknown to him. On April 6, 2007, the adoptive parents filed in Shawnee County, Kansas, a petition for adoption and termination of K.L.’s parental rights, attaching a temporary custody placement agree ment retaining legal custody with a licensed adoption agency in Kansas but giving physical custody to the adoptive parents in New Mexico. K.L. timely responded by filing in the Kansas proceeding his petition to dismiss adoption proceeding or, in the alternative, petition to vacate temporary custody order and request for immediate physical placement.
After conducting an evidentiary hearing, the district court in Kansas concluded that it had jurisdiction and entered its Decree of Adoption and Termination of Parental Rights. K.L. timely appeals from these orders.
Did the District Court have Jurisdiction Given K.L.’s Wisconsin Filings?
Statutory Abstention Requires Determination of Potential Jurisdiction of the Other State Under the UCCJEA.
K.L. challenges jurisdiction in Kansas, citing K.S.A. 59-2127(a), which states:
“A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if at the time the petition for adoption is filed a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the uniform child custody jurisdiction and enforcement act, or this act unless the proceeding is stayed by the court of the other state.” (Emphasis added.)
The adoptive parents argue on appeal that the district court properly asserted jurisdiction because the natural mother had voluntarily relinquished her parental rights prior to the filing of the Kansas proceeding. The district court initially concluded that jurisdiction was improper in Wisconsin because no service had been obtained on the natural mother in those proceedings, but the court ultimately decided that Wisconsin was not a convenient forum because the child “has no contact with [Wisconsin],” citing In re Adoption of Baby Girl B., 19 Kan. App. 2d 283, 867 P.2d 1074, rev. denied 255 Kan. 1001 (1994).
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. To the extent a jurisdiction question requires statutory interpretation or application, this also frames a question of law for which appellate courts have unlimited review. Bruch v. Kansas Dept of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006).
Parallel to K.S.A. 59-2127 for jurisdiction abstention in adoption proceedings is a provision within the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 38-1336 et seq., for jurisdiction abstention in child custody proceedings, codified in Kansas at K.S.A. 38-1353(a), which provides:
“[A] court of this state may not exercise its jurisdiction under K.S.A. 38-1348 through 38-1357 and amendments thereto if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under K.S.A. 38-1354 and amendments thereto.” (Emphasis added.)
Although these statutory provisions are different in their respective focus on “pending” versus “commenced” proceedings in another state, both have applicability here because the Kansas court had before it matters of custody, parental rights, and adoption. Moreover, we need not analyze this difference in the statutes because the provisions are identical in requiring abstention only if the other state proceeding is “pending” or “commenced” in a court “having” or “exercising” “jurisdiction substantially in conformity urith [the UCCJEA].” (Emphasis added.) See K.S.A. 38-1353(a); K.S.A. 59-2127(a). The paramount question before us is whether Wisconsin had jurisdiction “substantially in conformity with” the UCCJEA. See In re Marriage of Ruth, 32 Kan. App. 2d 416, 422-23, 83 P.3d 1248, rev. denied 278 Kan. 845 (2004); In re Marriage of Nadeau, No. 99,183, unpublished opinion filed July 3, 2008, slip op. at 4; see also In re Marriage of Sareen, 153 Cal. App. 4th 371, 377, 62 Cal. Rptr. 3d 687 (2007) (pertinent question is not whether the other forum had jurisdiction under its own laws but whether such jurisdiction is substantially in conformity with the UCCJEA).
Did Wisconsin Have Jurisdiction?
Turning to the UCCJEA’s jurisdiction provisions, we must determine whether the Wisconsin court had jurisdiction over the issues raised by K.L.’s initial filing. Because the pleading sought both initial placement and custody of the child, the applicable UCCJEA jurisdiction provision is that for “initial child custody.” In Kansas, the uniform provision on jurisdiction is codified at K.S.A. 38-1348, and in Wisconsin, this provision is codified at Wis. Stat. § 822.21 (2007), and provides in material part:
“(1) Except as provided in s. 822.24, a court of this state has jurisdiction to make an initial determination only if any of the following applies:
(a) This state is the home state of the child on the date of the commencement of tire proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under par. (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under s. 822.27 or 822.28.” (Emphasis added.)
The term “home state” is defined as
“the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned in this subsection. A period of temporary absence of any of the persons mentioned in this subsection is part of the period.” Wis. Stat. § 822.02 (2007).
See K.S.A. 38-1337(8).
Applying these UCCJEA provisions as codified in Wisconsin, it is clear that (i) Wisconsin was not the home state of Baby Boy M. on April 4, 2007; (ii) Wisconsin was not the home state of the child within 6 months before April 4, 2007; (iii) a court of another state had jurisdiction under the UCCJEA in that either Kansas or New Mexico was the home state of the child on April 4, 2007 and (iv) Kansas did not decline to exercise jurisdiction on the ground of forum non conveniens. As noted by another appellate court, home-state jurisdiction “trumps all other possible bases of jurisdiction in an initial child custody action” under the UCCJEA. In re Brown, 203 S.W.3d 888, 891 (Tex. App. 2006).
We conclude that whether or not an initial child custody had been commenced in Wisconsin, that state was unable to exercise jurisdiction substantially in conformity with the UCCJEA. Accordingly, the district court was not obliged to abstain from jurisdiction under either K.S.A. 59-2127 or K.S.A. 38-1353. Although the district court did not assert jurisdiction based on this precise rationale, there was no need for mandatory abstention in Kansas to determine the issues of custody, parental rights, and adoption. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006).
Did the District Court Abuse Its Discretion In Refusing to Decline Jurisdiction?
Even if the district court in Kansas was not obligated by statute to abstain from the assertion of jurisdiction, K.L. argues the court should have declined jurisdiction under K.S.A. 38-1354(a) because Kansas was an inconvenient forum and Wisconsin was the more appropriate forum. Indeed we note that the UCCJEA contemplates such a determination, and when jurisdiction is declined as inconvenient this may be determinative of jurisdiction in the other state. See K.S.A. 38-1348(a)(2); Wis Stat. § 822.21(b); In re E.T., 36 Kan. App. 2d 56, 68, 137 P.3d 1035 (2006). We review a decision to exercise or decline jurisdiction under inconvenient forum principles for an abuse of discretion. In re Adoption of Baby Girl B., 19 Kan. App. 2d at 288.
K.L. argues that the district court abused its discretion in finding Kansas was the most convenient forum. K.L. argues Wisconsin was convenient because of the following facts: (1) All witnesses able to testify as to K.L.’s ability to care for the child were in Wisconsin; (2) K.L.’s attempts to locate C.M. during the pregnancy were initiated from Wisconsin; (3) K.L.’s attempts to support C.M. during the pregnancy were made in Wisconsin; and (4) the records regarding the amount of support required by C.M. during the pregnancy were located in Wisconsin. K.L. also argues that all the relevant information regarding Baby Boy M.’s care was in New Mexico. Finally, K.L. argues that Kansas had no significant connection to Baby Boy M. or to evidence of his care, protection, training, or support because he was moved to New Mexico to live with his adoptive parents within a day of his birth.
The district court held that Kansas was not an inconvenient forum, relying on In re Adoption of Baby Girl B., 19 Kan. App. 2d at 290-91. The district judge held:
“In [In re Adoption of Baby Girl B], the alleged convenient forum was Pennsylvania. And not all the facts are exactly the same, but the principles — the facts are sufficiently similar that I think the principles apply. And my — based on the rulings in that case, my conclusion is that jurisdiction is proper in this case, and that Wisconsin has no contact with — the other way. The child has no contact with Wisconsin to make it a convenient forum under any circumstances, which residence of a child, an infant, is the residence of mother unless the child has had— been in custody of his father. If we are to say, as I think was concluded in that case, that the mother had really not established a sufficient residence, that residence could be determined that nonetheless, that case Kansas was an appropriate — was a reason, appropriate jurisdiction if you conclude that there isn’t any established state of residence.
“So the motion that is made to dismiss these proceedings on jurisdictional grounds, on grounds of noncompliance with the uniform child custody jurisdiction act, is going to be — that motion is denied for those reasons.”
A district court may decline jurisdiction over an adoption proceeding if Kansas is an inconvenient forum and another state’s courtis more appropriate. K.S.A. 38-1354. In analyzing the relative convenience of forums, the district court must examine all relevant factors, including the following eight factors enumerated in K.S.A. 38-1354(b):
“(I) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
“(2) the length of time the child has resided outside this state;
“(3) the distance between the court in this state and the court in the state that would assume jurisdiction;
“(4) the relative financial circumstances of tire parties;
“(5) any agreement of the parties as to which state should assume jurisdiction;
“(6)the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
“(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;
“(8) the familiarity of the court of each state with the facts and issues in the pending litigation.”
Here, the district court seems to have focused exclusively on the residence of the child rather than considering all relevant factors listed in the statute. Although it appears unlikely that a complete consideration of such factors might have supported a declination of jurisdiction, we are unable to endorse the district court’s approach to this issue.
Concluding that the district court failed to observe the statutory procedure for its decision to retain jurisdiction under K.S.A. 38-1354, we hold that the court abused its discretion. See State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006) (abuse of discretion may be found if the trial court’s decision fails to properly consider statutory standards). Accordingly, we reverse and vacate the court’s determination of convenient forum and remand for compliance with the statutory procedure.
On remand, the district court is directed to conduct the proper analysis under K.S.A. 38-1354 to determine whether Kansas is the most appropriate forum for the issues raised by the parties. The analysis should include at a minimum the consideration of all statutory factors from the perspective of a detached observer. The perspective of one particular party should not dominate the analysis. In re B.B.M., No. 91,959, unpublished opinion filed December 17, 2004, slip op. at 10.
Was There Sufficient Evidence to Support the Requisite Findings for Termination of K.L.’s Parental Rights?
K.L. next challenges the factual basis for the termination of his parental rights, arguing the evidence was insufficient. Assuming that the district court on remand does not decline jurisdiction, we must address the merits of this challenge despite our remand for an inconvenient forum analysis, as it may otherwise be subject to endorsement or res judicata on remand. Because the standard for termination of parental rights in the district court is by clear and convincing evidence, we consider all of the evidence, viewed in the light most favorable to the adoptive parents, and determine whether we are convinced a rational factfinder could have found the determination to be highly probable. See In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4, 187 P.3d 594 (2008).
Within an adoption proceeding, K.S.A. 2007 Supp. 59-2136(h)(1) enables the court to order parental rights be terminated “upon a finding by clear and convincing evidence” of any of the following:
“(A) The father abandoned or neglected the child after having knowledge of the child’s birth;
“(B) the father is unfit as a parent or incapable of giving consent;
“(C) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
“(D) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
“(E) the father abandoned the mother after having knowledge of the pregnancy;
“(F) the birth of the child was the result of rape of the mother; or
“(G) the father was failed or refused to assume the duties of a parent for two consecutive years next preceding tire filing of the petition.”
Moreover, the statute expressly permits consideration of the best interests of the child:
“(2) In making a finding whether parental right shall be terminated under this subsection, the court may;
(A) Consider and weigh the best interest of the child; and
(B) disregard incidental visitations, contacts, communications or contributions.” K.S.A. 2007 Supp. 59-2136(h)(2).
Examining the proceedings before the district court, we note that the journal entry contained no factual findings to support the termination of parental rights, but only a conclusion that “the parental rights of [C.M. and K.L.] be terminated based upon the Court’s ruling after a full and complete hearing May 15, 2007.” The transcript of the court’s ruling consists of 15 pages summarizing the evidence. There is no mention of the clear and convincing evidence standard, and there is nothing characterized as a “finding.”
In summarizing the evidence, the district court characterized abandonment as “a close question” and was unable to “find that abandonment was involved here.” With regard to support, the district judge summarized the evidence by stating that “I’m not going to list every one of [a packet of receipts], but after going through each of them I find that they are not really helpful in proving anything that’s material to the outcome of this case, not to say they’re not relevant” and “how they can be characterized as being support, I’ve not been able to determine.” With regard to contact, the court indicated that the records “confirm that [father] did [make a lot of phone calls]” and the evidence “clearly shows communication back and forth.” The judge then criticized the father’s proposal for taking custody of the child and stated — as if in disbelief, “And yet, I’m to conclude from that that this could be a safe environment for this infant to be taken care of and raised?” Finally, the judge concluded as follows:
“All of the things that I have mentioned are not considered just separately, but as a whole to make up the whole picture. And I have concluded that from this evidence, that the request of the [adoptive parents] that I terminate the father s rights should be granted.
“The evidence shows that he has materially failed to exercise his role as parent in the ways discussed — shown in the evidence, and, in fact, in more details of what I have set out here in today’s announcement conclusion of these proceedings.
“Mother has made a careful decision with a well planned course for her child so that her child — for their child, so this child would be reared in a good home and consistent with her religious faith — consistent with their religious faith as it’s related to me. And so, looking at the best interest aspect of this, it appears to me that that result is in the best interest of the child.”
Based upon our review of the transcript and journal entry of judgment, we must conclude that the district court failed to make any of the requisite findings to support a termination of K.L.’s parental rights, except an apparent finding as to the best interests of the child. K.S.A. 2007 Supp. 59-2136 clearly requires a finding by clear and convincing evidence of at least one of the seven statutory bases before parental rights be terminated; no such finding was made here, and even if we were to construe the judge’s comments as implying some finding, the absence of language stating that a finding was made by clear and convincing evidence would render the court’s decision unsupportable under the statute.
We recognize, however, that the statute as amended in 2006 permits the court to “consider and weigh the best interest of the child.” K.S.A. 2007 Supp. 59-2136(h)(2). Because the district court found that the best interests of the child would be served by the termination of parental rights in order to enable the adoption, we must determine whether a finding in this regard is sufficient to support the termination of parental rights. A panel of our court has squarely addressed this question and concluded that the legislature did not intend that the best interests of the child could stand alone as a ground to terminate a natural parent’s parental rights.
“The Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., is to be strictly construed in favor of maintaining the rights of natural parents. In re Adoption of K.J.B., 265 Kan. 90, 95, 959 P.2d 853 (1998). The Kansas Legislature intended to expressly permit courts, in weighing decisions whether to terminate parental rights, to consider the best interests of the child as a factor but not as a stand-alone basis for terminating parental rights.” In re Adaption of D.D.H., 39 Kan. App. 2d 831, 835, 184 P.3d 967 (2008).
We believe the rationale and holding of that panel is sound, and we adopt it here in concluding the district court’s finding regarding the child’s best interests is insufficient to support the termination of K.L.’s parental rights. We note that the rationale is consistent with a recent decision of our Supreme Court addressing a parallel provision applicable in stepparent adoptions, In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008). Our Supreme Court observed that the best interests language added to die statute in 2006 “does not, however, permit a court to override the [mandatory consent] requirement in [the statute].” 286 Kan. at 1064-65. Indeed, the best interests consideration merely “provides the court with additional discretionaiy powers to consider the best interests of the child in denying the adoption — even where a natural parent has not assumed the duties of a parent as articulated by this court— for unique reasons.” 286 Kan. at 1064. According to the court, the legislature has made a determination that the best interests of a child in a stepparent adoption is served by fostering the natural parent-child relationship where the parent has assumed his or her parental obligations. 286 Kan. at 1064. We do not perceive any reason to distinguish this best interests policy where the child is subject to an adoption outside family bounds.
Because the district court failed to make the requisite statutory findings to support a termination of parental rights by clear and convincing evidence, and because the court’s finding as to the child’s best interests is insufficient to support the decision, we have no alternative other than to reverse and remand for further proceedings.
Directions for Remand
The proceedings on remand are hereby ordered to be expedited and should include, at a minimum, a reconsideration of the con venient forum issue under K.S.A. 38-1354 and a new evidentiary hearing before a different district judge on the merits of the issues framed by all parties. We express no opinion on the merits to be addressed on remand, other than to reiterate the long-standing policy of our state:
“[T]he policy of th[is] state proceeds on the theory that [children’s] welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied.” In re Guardianship of Williams, 254 Kan. 814, 822, 869 P.2d 661 (1994).
Reversed and remanded with directions. | [
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Caplinger, J.:
Defendant Terri Yenzer appeals her conviction of obstruction of legal process, alleging the trial court erred in denying her motion to suppress evidence obtained pursuant to an alleged violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 1936 (codified in various sections of 18, 29, and 42 U.S.C.) (1996). Yenzer also contends the trial court improperly enhanced her sentence without requiring her prior criminal history to be proven to a jury beyond a reasonable doubt.
Factual and procedural background
Yenzer was charged with obstructing legal process in violation of K.S.A. 21-3808 when she ran from an officer who approached her at her dental office and attempted to verify her identity. Following a short pursuit, Yenzer was apprehended and arrested. Yen zer moved to suppress information relating to the time and date of her dental appointments, claiming the information was obtained in violation of her rights under HIPAA.
Yenzer claimed the first violation occurred when she went to a law office to pay a debt and obtain a refund of a money order. In the course of the transaction, Yenzer revealed to the legal assistant that Yenzer could not obtain an identification card because she had an outstanding warrant.
The assistant subsequently contacted the local police and informed them that Yenzer had volunteered that she had an outstanding warrant and that Yenzer would be at her dentist’s office for an appointment the following day.
Based upon this information, a police officer attempted to serve the warrant on Yenzer at the dentist’s office the following morning. The officer noticed Yenzer’s name listed in the appointment book visible on the receptionist’s desk. The receptionist advised the officer that Yenzer had cancelled her appointment that day, and provided the officer with the date on which Yenzer had rescheduled her appointment 1 week later.
The officer returned on that date, and when Yenzer appeared, he sought identification. Yenzer misidentified herself and then attempted to run from the officer, resulting in the obstruction charges.
The district court denied Yenzer’s motion to suppress, finding that neither the legal assistant nor the receptionist violated HIPAA by providing information to the officer regarding Yenzer’s medical appointments. The court also denied Yenzer’s renewed motion to suppress at the subsequent bench trial. Yenzer was convicted of obstructing legal process and sentenced to 12 months’ probation with an underlying sentence of 10 months.
Discussion
On appeal, Yenzer renews her assertion that her HIPAA rights were violated when the legal assistant and receptionist provided law enforcement with information relating to the dates and times of Yenzer’s medical appointment. Yenzer claims the district court erred in denying her motion to suppress this evidence as a result of the violation.
We review the district court’s decision on a motion to suppress evidence using a bifurcated standard. Without reweighing evidence, we review the district court’s factual findings to determine whether they are supported by substantial competent evidence. We then review the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
The district court conducted a veiy thorough analysis of the two alleged HIPAA violations and denied Yenzer’s motion to suppress after concluding Yenzer’s HIPAA rights were not violated by either disclosure. As a result, the district court did not reach the secondary issue of whether the suppression of evidence in a criminal case is an appropriate remedy for a violation of a defendant’s HIPAA rights, an issue of first impression in Kansas. However, in this appeal, we find it more expedient to initially address the secondaiy issue and assume for purposes of discussion that defendant’s HI-PAA rights were violated by one or both of the disclosures.
A recent Wisconsin case, State v. Straehler, 307 Wis. 2d 360, 745 N.W.2d 431 (2007), is instructive. There, a nurse made unauthorized disclosures to police of statements made to the nurse by a defendant charged with driving under the influence. The nurse also provided officers with her impressions regarding the defendant’s alcohol consumption.
The Wisconsin court found that the officer’s use of the information was subject to HIPAA’s exception for law enforcement personnel, and thus not restricted by HIPAA. 307 Wis. 2d at 366-67. See 65 Fed. Reg. 82,462, 82,679 (December 28, 2000). Further, the court concluded that even if HIPAA did apply to the officer’s use of the information, the court would not suppress the evidence because “ [suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy.” 307 Wis. 2d at 368. The court noted that the defendant did not malee an argument for suppression on constitutional grounds and HIPAA does not specifically provide for suppression. 307 Wis. 2d at 368. To the contrary, the court held that “under the HIPAA statutory authority, we cannot impose sanctions on law enforcement officials or require suppression of evidence.” 307 Wis. 2d at 368 (quoting 65 Fed. Reg. at 82,679).
Similarly, in this case Yenzer has not made a constitutional claim warranting suppression. Nor has she presented any authority to support her assertion that suppression is a proper remedy for a HIPAA violation. While we do not condone the disclosure of information that occurred here, we must conclude that even if Yenzer could show a HIPAA violation, the district court did not err in denying Yenzer s motion to suppress.
Finally, Yenzer contends the district court violated her right to due process, as recognized by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used her criminal history score to enhance her sentence without requiring her criminal history to be included in the complaint, tried to a jury, and proven beyond a reasonable doubt.
Our Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002), and we are bound by this precedent absent an indication of a change in the court’s position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). The Supreme Court recently confirmed that “Ivory remains good law.” State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008).
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Hill, J.:
This is an appeal from a district court order approving the Morris County Board of County Commissioner’s award of $4,050 in damages to Davenport Pastures, LP. The Commission made the award because it had closed two unimproved roads that touched the north end of Mulvane Ranch, a ranch that Davenport had leased for cattle grazing. Davenport had asked for more than $300,000 in damages. Because the Commission acted within the scope of its authority and substantial competent evidence supports its award, we see no evidence of fraud; and the Commission does not appear to have acted arbitrarily or capriciously, we agree with the district court. We affirm.
This case is hack from our remand order.
Mulvane Ranch is a large continuous tract of land found in both Morris and Chase Counties, with the north end of the ranch in Morris County. The north end of the ranch is all pasture, while all the improvements are found in the south end, located in Chase County. Public road access to Mulvane Ranch is also on the south end of the ranch from Diamond Creek Road. That access has been unaffected by these proceedings.
Four platted, unimproved roadways reached the north end of the Mulvane Ranch, at least on paper. The parties referred to them as Roads 1, 2, 3, and 4. All four roads were undeveloped, rarely used, and very difficult to make out in the photos. Morris County closed Roads 1 and 2 on March 9, 1999. Davenport sought damages from that closure. At the time the Commission denied them any compensation. On appeal, the district court ruled Davenport’s loss of access was compensable, entertained evidence on the loss, and made a monetary award to Davenport.
Here, we must point out this is the second appeal from this road closure dispute. We will refer to the first case as Davenport I, reported in Davenport Pasture, LP v. Board of Morris County Comm'rs, 31 Kan. App. 2d 217, 222, 62 P.3d 699, rev. denied 276 Kan. 967 (2003). In that appeal, the county commission appealed the district court’s damage award. In ruling on the issue, a panel of this court decided that Davenport held a common-law right of access to the two closed unimproved roadways, Roads 1 and 2. Therefore, Davenport was entitled to compensation from their closure. But, we also held the district court exceeded its jurisdiction under K.S.A. 60-2101(d) when it determined damages by using a de novo standard of review. 31 Kan. App. 2d at 224-25.
In Davenport I we held:
“Although K.S.A. 60-2101(d) provides a district court with the ability to hear additional evidence, the Kansas Supreme Court has held that this review is not de novo. Rather, it is limited to the three issues listed above: whether the Board’s decision was within the scope of its authority, whether it was supported by substantial competent evidence, and whether it was fraudulent, arbitrary, or capricious. [Citation omitted.] Because the Board did not conduct a hearing or find that any damages should be awarded, it did not reach the issue of the appropriate amount of damages. The district court had no decision before it that could be subjected to the three-point limited review outlined by our Supreme Court. Under these circumstances, it was error for the district court to rule on Davenport’s amendment of the amount sought, to conduct a trial de novo, and to arrive at an award. Once it determined that the Board’s decision denying compensation must be reversed, the district court should have remanded to the Board for further proceedings designed to set the amount.” 31 Kan. App. 2d at 225.
We remanded the case on February 7, 2003, to the district court with instructions to return the case to the Commission for further proceedings to fix the compensation.
The Commission made a damage decision.
On remand, the Commission conducted a hearing to discuss the issue of damages, entertaining evidence from licensed appraisers. At the hearing, Davenport sought $382,965 as damages. To support its position, Davenport provided appraisals from Michael Hinkson and Joe Biggs. William A. Kassebaum, county counselor for Morris County, presented appraisals from David Sundgren and William G. Wilson. The damage appraisals varied greatly.
Naturally, the appraisals presented by Davenport were the highest. Hinkson, using a direct sales comparison of sales of 12 properties without road access advised the closure of Roads 1 and 2 caused a drop of $382,965 in the value of the ranch. Biggs, who also used a direct sales comparison of four ranches — two with no access — -told the Commission the damages were $338,850. Sundgren, hired by Morris County, employed an unconventional approach to appraising this property which he called “cost to cure.” Sundgren thought the damages amounted to $4,050. Wilson, also hired by the county, said the damages were $0.
Sometime later, the commissioners issued their findings in an order, drafted by their attorney Kassebaum. First, the Commission found that Road 4 provided reasonable access to the north end of the ranch but agreed that Road 4 was not as convenient as Road 1. Based on that inconvenience, the Commission relied on Sundgren’s appraisal. After all, in its view, he was the only witness who had calculated the “loss of convenience.” It adopted his assessment of damages of $4,050, which encompassed the costs of a drainage tube, some earth grading, and increased mileage to be incurred over several years.
The Commission declined to rely on Biggs’ and Hinkson’s figures, finding parts of their appraisals to be fundamentally flawed. The Commission believed that Biggs’ assumption that all variance in value can be placed on loss of access, without considering the effect of location, water, fences, or soil type on value, made his figure factually unsupported. Similarly, the commissioners determined that Hinkson’s figure was not supported by the evidence. Hinkson had assumed there was all-weather access to the property before the road was vacated but no access after the closure. Also, he assumed the highest and best use of the property before vacating Roads 1 and 2 was to subdivide the ranch, and subdivision was no longer possible after the road closure.
The district court approved the Commissions actions.
Davenport appealed the award to the district court, raising many claims, including complaints about the commissioners. One rode with the county counselor to the north end of the ranch before the hearing to see what they could see. One commissioner twice drove himself to the north end of the ranch. Two commissioners admitted to looking at a county road map hanging on the wall of their meeting room. One commissioner looked at a county map in the Commission secretary’s office. And, Davenport objected to the commissioners utilizing their long-standing policy of putting gravel only on roads that are school bus or mail routes. Davenport claims these actions denied it due process. Davenport also objected to Kassebaum, the county counselor, drafting the Commission’s written decision.
In turn, the district court upheld the commissioners. Limiting its review to the standards determined in Davenport I, the district court held that (1) the Commission acted within its scope of authority; (2) the Commission’s decision was supported by substantial evidence; and (3) the Commission’s decision was not fraudulent, arbitrary, or capricious because (a) Kassebaum’s actions in the case did not influence the Commission’s decision and (b) the Commission members’ considerations of evidence outside the hearing were minor infractions that did not prejudice the proceedings in a meaningful way.
Now, in this appeal, Davenport contends Kassebaum’s participation in this hearing violated its right to due process. Also, the appellant argues the Morris County Commission denied it due process by considering evidence outside the damage hearing. Moving on, Davenport claims there is no substantial competent evidence supporting the Commission’s damage award. And, finally, Davenport believes K.S.A. 68-102a, 68-107, and 60-2101(d) are unconstitutional. We will address those issues in that order.
The county counselors participation was proper.
In its findings, the district court showed that Kassebaum offered evidence at the Commission hearing, cross-examined witnesses at the hearing, and drafted the decision for the Commission. The court also found Kassebaum did not take part in deliberations for its decision.
Davenport asks us to reverse the district court’s decision that Kassebaum’s participation in this case is well within the bounds of proper conduct. It challenges the district court’s findings, arguing that to sustain a finding of a denial of due process, actual harm need not be shown, citing cases from jurisdictions which have found proof of actual bias unnecessary if an appearance of bias exists. Davenport asserts that Kassebaum’s dual role throughout these proceedings, as advocate during the hearing and legal adviser during deliberations, “created a probability of actual bias and impartiality on the part of the Board that is simply too high to be constitutionally tolerable.”
We review this as a question of law and thus have unlimited review over the question of whether Davenport’s due process rights were violated. See Robinson v. Kansas Dept. of Revenue, 37 Kan. App. 2d 425, 428, 154 P.3d 508 (2007).
First, we must point out in a quasi-judicial proceeding in Kansas, it is incumbent on the authority holding the hearing to comply with the requirements of due process in its proceedings. Simply put, due process requires the proceedings to be fair, open, and impartial. A denial of due process renders the resulting decision void. See McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan. 303, 305, 49 P.3d 522 (2002).
For support, Davenport points to two cases from Pennsylvania and one from California. First it cites Horn v. Township of Hilltown, 461 Pa. 745, 748, 337 A.2d 858 (1975), which held that due process rights may be violated if there is an appearance of impropriety in a quasi-judicial proceeding. That case dealt with a hearing reviewing a proposed zoning ordinance. At the hearing, the Commission’s attorney ruled on the evidence and objections made to the • township’s evidence, which were presented by the attorney himself. Also, the attorney advised the Commission in legal matters about the case. The court in Horn ruled that a governmental body charged with certain decision-making roles must not only be unbiased but also avoid the appearance of bias.
Davenport next cites Newton Tp. Bd. Of Sup’rs v. Gr. Media, 138 Pa. Commw. 157, 162, 587 A.2d 841 (1991), which held the mere potential for bias or the appearance of nonobjectivity may be enough to constitute a violation of that right. During the public hearings before the zoning board to raise the height of a radio tower, the township’s solicitor served as a legal adviser to the Commission while also representing the township at the Commission hearing in arguing against the appellee’s application. The court in Newton held the Commission failed to keep its role as an unbiased tribunal. It “create [d] an appearance of impropriety for the township’s solicitor to serve as legal advisor to the Board in ruling on Appellee’s conditional use application, and to also act in an adversarial capacity in opposition to the conditional use application.” 138 Pa. Commw. at 162.
Davenport also cites Quintero v, City of Santa Ana, 114 Cal. App. 4th 810, 817, 7 Cal. Rptr. 3d 896 (2003), which found that the totality of the circumstances gave the appearance of bias and unfairness sufficient to show the probability of actual bias. In Quintero, the California Court of Appeal examined whether the city personnel board was biased because the deputy city attorney, who represented the city in this case, had at times also acted as counsel for the city personnel board. The court in Quintero stressed that dual representation by the city attorney’s office was not barred so long as there is an enough separation of the two roles and the attorneys performing them. But, in this case, the Quintero court found the city did not meet its burden of showing the required separation. 114 Cal. App. 4th at 813-14.
No Kansas appellate court has adopted any of the rules found in Pennsylvania and- California. Instead, Davenport asks this court to infer that Kassebaum’s long-standing relationship with the Com mission as county counselor and legal adviser automatically creates a likelihood of bias, which violates its due process rights.
Despite making this argument, Davenport concedes that Kassebaum did not conduct himself in a manner to cause such bias to occur. Further, the evidence contained in the record on appeal fails to support the notion that Kassebaum’s actions created an appearance of impropriety. First, the commissioners testified that Kassebaum did not influence their decision. Second, Davenport never requested Kassebaum to withdraw from any of the proceedings or for the Commission to retain separate counsel.
In our view, this evidence shows the Commission complied with the requirements of due process. Its proceeding was fair, open, and impartial, as required by Kansas law. Davenport fails to make a convincing argument that a due process violation has occurred when the evidence contradicts such an allegation. Compare this case with Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 361-62, 770 P.2d 423 (1989). In that case, the Racing Commission’s grant of a racetrack license was not set aside based on claim of “an appearance of impropriety” because of certain relationships between a partner of a successful applicant and the attorney general and because there was no evidence that their relationship influenced any Commission members. Also, the statute required the attorney general to appoint assistant attorneys general to work with the Commission. The law specified that those attorneys would be solely responsible to the Commission. 244 Kan. at 361-62; see also Colorado Motor Vehicle v. Northglenn, 972 P.2d 707, 711 (Colo. App. 1998) (finding that a party challenging board’s decision must prove staff member’s bias had actual impact on Commission’s decision to require recusal of Commission based on issue of impartiality).
Without evidence that an attorney’s action in representing a board at a quasi-judicial hearing as well as advising the Commission has actually affected the Commission’s decision, we will not find a due process violation.
Viewing the roads and examining the maps is not reversible error.
Davenport next contends consideration of evidence outside the hearing by the Commission violated Davenport’s rights to due pro cess. A review of the commissioners’ depositions reveals the following influenced the Commission’s finding that Road 4 provided reasonable access:
a. Before the hearing, Commissioner F.J. Revere rode with Kassebaum to the north end of the ranch to personally view the roads;
b. Commissioners Jerry Britt and Darrell Miller looked at the county map that was hung on the wall of the Commission’s conference room;
c. Commissioner Britt independently drove to view the roads on two occasions;
d. Commissioner Miller examined the road record map in Michelle Garrett’s office (Michelle Garrett is the Commission’s secretary); and,
e. The Commission’s recognition of “a long-standing policy of Morris County to gravel only roads that are school bus or mail routes.”
Our law on this point is well established. For an administrative hearing be fair, all parties must be apprised of the evidence so they may test, explain, or rebut it. “They must be given an opportunity to cross-examine witnesses and to present evidence, including rebuttal evidence, and the administrative body must decide on the basis of the evidence.” Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, Syl. ¶ 4, 597 P.2d 654 (1979).
In this case, it is undisputed the Commission considered evidence outside the hearing. Unlike the case cited by the appellant in Suburban Medical Center, the type of evidence the Commission considered here did not render its decision unfair. First, commissioners viewing of the roads and maps merely duplicated evidence that had been presented at the hearing. Davenport’s appraisers presented pictures and maps of the roads in their appraisals. Further, the commissioners’ reliance on their unwritten policy was not improper. Our Kansas Supreme Court has held that “[w]hile a county is required to improve a county road, it is not required to surface it with gravel.” Neosho County Comm’rs v. Burdick, 120 Kan. 698, Syl. ¶ 1, 244 P. 866 (1926). Under the facts of this case, where it examined evidence that merely duplicated what was submitted, the Commission’s examination of evidence outside the hearing did not violate Davenport’s due process rights. We agree with the district court, the Commission members’ consideration of extra-record evidence did not prejudice the proceedings in a meaningful way.
Substantial evidence supported the district court’s decision.
Davenport first argues that substantial competent evidence did not support the Commission’s finding that Road 4 provided reasonable access.
In making this review under K.S.A. 60-2101(d), we employ the same standards of review used by the district court. First, was the Commission’s decision within the scope of its authority? Second, was it supported by substantial competent evidence? And, finally, was the decision fraudulent, arbitrary, or capricious? See Davenport I, 31 Kan. App. 2d at 222-23, 225.
On appeal, Davenport limits its challenge to the substantial competent evidence standard. Substantial evidence is “ ‘ “evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.” ’ [Citation omitted.]” Davenport I, 31 Kan. App. 2d at 223. Davenport argues the evidence does not support the finding that Road 4 provides reasonable access.
Basically the Commission’s compensation was comprised of the costs necessary for Road 4 to be roughly equivalent to the access provided by the two closed roads, Roads 1 and 2. They also included the added costs incurred from using Road 4 over Road 1. In hmiting its award to these components, the Commission decided Road 4 provided reasonable access. For evidentiary support, the Commission relied on the testimony of Edward Teghtmeyer, who is the county road and bridge superintendent, and Biggs.
But for proper access, Davenport asserts the Commission should have included in its award the added costs required to remove a fence and other obstacles, such as trees, from Road 4 and therefore asks us to find the Commission’s damage award was improper.
We find it difficult to adopt Davenport’s position. First, Davenport never presented to the Commission any cost estimate for removing a fence running through the road or any other obstructions. Rather, the evidence shows that both of Davenport’s appraisers expressly declined to use the cost to cure approach in their assessments, and without such evidence, as noted in the Commission’s brief, the Commission lacked the means to consider the costs Davenport now requests.
Second, Davenport made no request for removal of the fence to the Commission. Davenport must recognize this. Commissioner Britt suggested in his deposition this is still an available choice: ■
“Q. [Davenport’s attorney] Have the County Commissioners taken any action to direct the landowners that have a fence across Road 4 and down Road 4, ... to remove those fences?
“A. [Commissioner Britt] No.
“Q. Do you have any current plans as you sit here today to do that?
“A. There — as soon as we have a request from someone that they’d like to use that road, why, it will certainly be done. So far nobody’s requested that.”
Third, we do not believe the Commission could provide Davenport with the authority, through paying a damage award, to remove these obstacles from Road 4. K.S.A. 68-115(a) charges the county engineer or the township trustee with the authority to remove these obstacles, and it does not appear that this duty can be delegated. See State v. Deines, 268 Kan. 432, 439, 997 P.2d 705 (2000) (“The County has no statutory authority to informally designate others as its agent to maintain county roads.”); Gronniger v. Board of Doniphan County Comm’rs, 6 Kan. App. 2d 642, 644-45, 631 P.2d 1252 (1981) (K.S.A. 68-115 makes it the duty of each county engineer to open or cause to be opened all state and county roads, to keep the same in repair, and “to remove or cause to be removed all obstacles that may be found therein.”). Any expenses for bringing Road 4 up to the appropriate standard must be bom by Morris County, not Davenport. We see no valid reason to award Davenport money for what the county must do.
Our review of the record verifies the Commission’s access finding. First, at the district court’s trial in the first case, Teghtmeyer testified that he did not see any reason why Road 4 could not be made into a reasonable access. Second, at the Commission hearing in this case, Biggs provided similar testimony; however, Biggs qualified his remark, stating that Road 4 could provide reasonable access if Road 4 was brought up to the standard for a minimum maintenance road. Therefore, because there is a factual basis for the Commission’s finding which is supported by the record, we find that substantial competent evidence exists for the Commission’s finding that Road 4 will provide reasonable access.
' Davenport next asserts that substantial competent evidence did not support the Commission’s finding that it would cost $1,650 to make Road 4 the same level as Roads 1 and 2. Mainly, Davenport challenges the Commission’s reliance on Sundgren’s appraisal, asserting that Sundgren lacked the qualifications to make such an assessment. In response, the Commission argues that Sundgren’s assessment was factually supported because he provided a detailed basis for his estimate.
Davenport mistakenly argues that this estimate by Sundgren was to bring Road 4 up to standard. That is not so. The award was to cover the cost of improvements that needed to be made on the ranch, not on Road 4. Sundgren specified at the hearing:
“Roadway No. 4 is the road from the north to the northwest comer of the ranch. It is a viable access. It comes to the northwest comer of the ranch, and terrain that [sic] is not as good or not as friendly as the other two roadways, because when you enter the ranch you immediately gone [sic] downhill, and there’s a draw that cuts through from fence to fence across that comer of the section, and you need to cross that draw and then you come back onto a plateau.”
Later, during cross-examination Sundgren clarified the estimate:
“Q: [By Mr. Rayl] How did you arrive at the estimate for fixing Road No 4. at sixteen hundred and some dollars?
“A: [By Mr. Sundgren] That is not to fix Road No. 4 that is to let the property owner come into the property with equal access. See, if he comes in Road No. 1 . . . Road No. 1 enters the ranch on level terrain so if he — if the Mulvane people come in there with a horse trailer full of horses or calves and they need to cut off towards the south end of the ranch, under normal circumstances they can do that if they come in on Road No. 4 which I say is not as good as Road No. 1 or Road No. 2, they’ve got to come in and go down a grade across that draw and up a hill. And I’m saying that if — if they’re going to do that to them, they need to have the equal is equal [sic] on both sides of ranch, so they need to — and the tube — so the estimate I got for a tube to put in that draw is a thirty-six inch tube and it’s in my notes cost thirty to forty dollars a foot and I put a thirty foot tube plus an estimate what I think per hour grading would be to put some dirt on top of that to malee it passable.”
This is why he called his method “cost to cure.” Sundgren viewed this as a matter of loss of convenience. After all, these roads were seldom, if ever, used.
Here, Davenport argued this issue before the district court at the summaiy judgment hearing. The district court rejected this argument and the record supports the district court’s findings. Once the Commission determined that lessened access to the ranch had no effect on the overall value of the ranch, it viewed the “cost to cure” method as the standard for compensation. Under this method, neither of Davenport’s appraisers presented an opinion. Sundgren’s assessment was the only evidence. Davenport cross-examined Sundgren about his assessment and took the opportunity to undermine Sundgren’s credibility by raising issue with his qualifications. But Davenport did not provide its own evidence to rebut Sundgren’s estimates or seek a continuance to get experts to challenge these estimates.
This case is similar to Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 653, 889 P.2d 1127 (1994), where our Supreme Court summarily examined the issue whether the expert’s testimony was inadmissible in an administrative license suspension because it did not satisfy the requirements of K.S.A. 60-456(b). The Corder court applied an abuse of discretion standard: “The admission of evidence before the Commission and ultimately before the trial court is a matter left to the sound discretion of the trial court.” 256 Kan. at 653. In finding the record supported the trial court’s rulings on admissibility of the expert testimony, the court in Corder held that no abuse of discretion occurred. 256 Kan. at 653.
Similarly, the record supports the trial court’s findings here. Sundgren’s assessment was supported by the evidence in the record. We find no abuse of discretion occurred in admitting Sundgren’s opinion about what was required for access to Road 4. His testimony supplies substantial competent evidence for the Commission’s award.
We do not hold K.S.A. 68-102a, 68-107, and 60-2101(d) unconstitutional.
K.S.A. 68-107(1) allows a damage award from vacating roads to be paid by the county. In Davenport’s view, this makes the county an adverse party because it pays the award. Under this premise, Davenport contends K.S.A. 68-102a, 68-107, and 60-2101(d) are unconstitutional since (1) K.S.A. 68-102a wrongfully permits the Commission, as an adverse party, to decide the issue of damages, and (2) if that decision is challenged on appeal, K.S.A. 68-107 and 60-2101(d) infringe upon the district court’s ability to review that decision de novo.
It is important to review the statutes at this point. K.S.A. 68-102a vests the Commission with the authority to fix damages resulting from vacating of roads. Relevant to tins case, the statute states:
“Proceedings for the award of damages, if any, to the property owners affected by such action, and any appeal therefrom, shall be made in the same manner as provided in K.S.A. 68-107, and amendments thereto. Any person or persons may make written application to the county commissioners for payment for damage to property caused by such action. . . . The county commissioners shall determine the amount of damage sustained, if any, by such claimant.” (Emphasis added.)
After the Commission decides the damages, if any, to be awarded to a claimant, K.S.A. 68-107 sanctions an appeal of that decision to the district court. K.S.A. 68-107 states in part: “Any person feeling aggrieved by the award of damages made by the board of county commissioners may appeal from the decisions of said board of county commissioners to the district court pursuant to K.S.A. 60-2101.”
Under K.S.A. 60-2101(d), the district court may hear more evidence in reviewing the Commission’s decision.
“A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. . . . The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require.” K.S.A. 60-2101(d).
But, the district court’s scope of review is limited to “whether the board’s decision was within the scope of its authority, whether it was supported by substantial competent evidence, and whether it was fraudulent, arbitrary, or capricious.” Davenport I, 31 Kan. App. 2d at 225.
Basically this issue raises the question of whether the Commission acting in a quasi-judicial capacity can decide damages in a fair and unbiased manner when the county is financially responsible to pay the damage award. Does the district and appellate courts’ limited review fail to ensure the decision is valid?
Our courts have recognized this potential conflict in other situations:
“We recognize a board of education has a dual role as both an administrator and a quasi-judicial body. Regardless of the inherent difficulty in the conflict of these roles, the teacher’s entitlement to a ‘fair and impartial decision’ (K.S.A. 72-5439[f]), requires that the Board strive for a high standard of detached objectivity when performing its role as a quasi-judicial body. Attainment of this standard demands tire Board abandon its role as prosecutor after the due process hearing and make a good faith review of its previous tentative decision in light of the case presented to the hearing committee. Accordingly, board members should refrain from discussing the case with any persons other than fellow board members and counsel from the date the hearing is completed until the Board renders its final decision.” Haddock v. U.S.D. No. 462, 233 Kan. 66, 77-78, 661 P.2d 368 (1983).
Thus, our courts have safeguarded an individual’s constitutional guaranty of due process by applying the scope of review under K.S.A. 60-2101(d). See Unruh v. U.S.D. No. 300, 245 Kan. 35, 43, 775 P.2d 171 (1989) (upholding district court’s conclusion the Commission acted arbitrarily and capriciously, resulting in denial of due process); see also Haddock, 233 Kan. at 69, 77-78 (affirming district court’s conclusion the Commission’s decision was not supported by substantial competent evidence and Commission had denied teacher’s right to due process).
These standards of limited review were first developed in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), and now govern administrative law cases under K.S.A. 60- 2101(d). See In re Residency Application of Bybee, 236 Kan. 443, 444, 691 P.2d 37 (1984) (stating the limited scope of review under K.S.A. 60-2101[d] was defined in Foote).
In summarizing the rules from cases dealing with the scope of judicial review of administrative actions, Foote expressly stated:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.” 200 Kan. at 450.
Foote reasoned the limited review was necessary because:
“Constitutional grounds aside, an interpretation permitting a wider scope of review, such as a de novo determination, would amount to virtual disregard of the specialized nature of the board and make it a mere way station en route to the seat of real authority — the particular district court judge to whose lot the appeal fell.” 200 Kan. at 451.
In Yuille v. Fester Marketing Co., 9 Kan. App. 2d 464, 465, 682 P.2d 676 (1984), the court explained the reasoning behind this limited review:
“ ‘A District Court, when conducting a review of administrative orders on appeal, must distinguish between questions of law and questions of fact. This distinction is essential for preservation of the separation of powers between the governmental branches. An agency is performing quasi-judicial functions when interpreting rules, regulations or statutes. A court is a higher judicial body and may substitute its judgment for that of an agency on questions of law. Usually a court will give much deference to the agency’s interpretation of its regulations. [Citations omitted.]
“ ‘In determining facts, an agency is operating within its area of expertise. The scope of judicial review of agency actions which adjudicate facts, is governed by a [tripartite] test set out in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968).’ ” (Emphasis added.)
No evidence has been presented to demonstrate the Commission’s failure to act as a fair and unbiased tribunal when making its decision here. Even if we assumed a conflict was present, the scope of review set forth in K.S.A. 60-2101(d) safeguarded Davenport’s guaranty to due process, which the district court properly applied to the Commission’s determination of facts, that is, damages. These statutes are not unconstitutional. There are checks on the Commission’s findings.
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Standridge, J.:
Lisa L. Matthews appeals the district court’s decision to exclude Subchapter S corporation distributions from her former husband’s gross domestic income for purposes of calculating child support under the Kansas Child Support Guidelines. We reverse the district court’s decision in this regard and remand with directions. In a claim unrelated to the S corporation distribution, the district court awarded a partial increase in child support, and, on appeal, Lisa asks this court to change the effective date of the modification. We affirm in part, reverse in part, and remand with directions.
I. Facts
Lisa Matthews and Burke Matthews were divorced on June 2, 2004. They have three minor children. In the separation agreement, Burke agreed to pay $1,580 per month in child support. No child support worksheet was filed to support this financial agreement. The district court approved the parties’ separation agreement on November 23, 2004.
On December 28, 2005, Lisa filed a motion to modify child support, citing an increase in child care costs. Based on financial information about Burke’s income received by Lisa during discovery related to the motion to modify, Lisa filed an amended motion to modify child support on November 1, 2006. In the amended motion, Lisa alleged that after the divorce, Burke began receiving additional income in the form of tax-exempt interest, qualified dividends, and distributions from a Subchapter S corporation. Lisa argued that this money should be included in Burke’s income for purposes of calculating child support.
A hearing on the amended motion was held on January 2, 2007. Counsel proffered testimony on behalf of their respective clients and presented arguments. The court admitted joint exhibits:Burke’s 2005 personal income tax return and a Stock Purchase Agreement for the purchase of shares in Berco, Inc. (Berco), a Subchapter S corporation.
The Stock Purchase Agreement was executed on December 31, 2004, a month after the district court approved the parties’ separation agreement. In it, Burke contracted to buy 229 shares of Berco common stock from Kent Berkley, another stockholder, for $160,000. Burke paid $10,000 at the time the agreement was executed, and the remaining balance must be paid in full by December 31, 2011. To that end, Burke promised to pay Berkley at least 80 percent of any dividend received from the Berco stock toward the balance owed. In 2005, the first calendar tax year after executing the contract, Berco distributed $19,424 in dividends to Burke.
On January 18, 2007, the district court issued an order denying Lisa’s amended motion. In its written opinion, the district court held the Berco dividend payments should not be included as income to Burke for purposes of calculating child support. More specifically, the court found the $19,424 in Berco dividend payments was unavailable to pay additional child support, because 80 percent of the dividend ($15,539.20) went to pay Burke’s installment obligation, and the balance ($3,884.80) went to pay the tax liability on the dividends. In this order, the court also directed the parties to prepare a child support worksheet to determine whether there was a change in the parties’ financial circumstances and, if so, whether such change would increase Burke’s child support obligation by 10 percent or more. The court further ordered that any increase in child support would be effective as of December 1, 2006, based upon the filing date of the amended motion to modify child support.
Lisa filed a motion to reconsider with regard to the Berco dividends, as well as with regard to the court’s failure to include as income the tax-exempt interest and qualified dividends fisted on Burke’s tax return. On February 21, 2007, the district issued another order recalculating Burke’s gross income to include the referenced tax-exempt interest and qualified dividends. In this order, however, the court specifically noted that it was not altering its decision to exclude the Berco dividends as income to Burke for purposes of calculating child support. Again, the court directed the parties to prepare a child support worksheet to determine whether there was a change in the parties’ financial circumstances and, if so, whether such change would increase Burke’s child support obligation by 10 percent or more. The court also reiterated that any increase in child support would be effective as of December 1, 2006.
Lisa appeals, arguing that the district court erred (1) in excluding the Berco dividends from Burke’s income for purposes of calculating child support and (2) by setting December 1, 2006, as the effective date for any change in child support.
II. Standard of Review
The standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion, while interpretation and application of the Kansas Child Support Guidelines (Guidelines) are subject to unlimited review. In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1085, 176 P.3d 965 (2008). To that end, an appellate court reviews the district court’s findings of fact to determine if those findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. 38 Kan. App. 2d at 1085.
In this appeal, Lisa does not challenge any of the district court’s factual findings. Instead, Lisa alleges the district court erred — as a matter of law — in determining that the Berco dividends were not income as defined by the Guidelines. Because the interpretation of the Guidelines is a question of law, our review of the issue presented is unlimited. See Atchison, 38 Kan. App. 2d at 1085.
III. Discussion
A. Are the Berco Dividends Income for Purposes of Child Support?
Before discussing the ultimate issue presented — whether the Berco dividends are income for purposes of calculating child support' — we find it helpful to briefly review the unique attributes of a Subchapter S corporation.
I. The Subchapter S Corporation
A Subchapter S corporation, or simply S corporation, may not have more than 100 shareholders, may not have a shareholder who is not an individual (with certain exceptions), may not have a nonresident alien as a shareholder, and may not have more than one class of stock. 26 U.S.C. § 1361(b)(1) (2007). S corporations are designed to avoid double taxation on corporate earnings. To that end, shareholders of S corporations receive the benefit of what is known as “pass-through taxation.” See Black’s Law Dictionary 1500 (8th ed. 2004). In other words, the S corporation’s income is passed through to its shareholders so that the shareholders are taxed on the income at the end of die year, but the S corporation as an entity is not taxed on die income. This method of taxation differs from the double taxation that results in a more traditional C corporation. In a “C corporation,” the corporation as an entity is taxed on its income and then its shareholders are again taxed on the income that they receive through dividends. Black’s Law Dictionary 365 (8th ed. 2004).
In an S corporation, the shareholders report the corporation’s income on their individual tax returns in an amount proportionate to their ownership interest. K.S.A. 79-32,139. Although the shareholders pay the taxes on the income, the income is still owned by the corporation, not by the shareholders. Accordingly, it is the corporation — and not the shareholders — that decides whether, and in what amount, the income is distributed or retained within the corporation. S corporations may retain some, or all, of the income. This sum is referred to as “retained earnings.” See Black’s Law Dictionary 548 (8th ed. 2004). S corporations may distribute some, or all, of the income. This sum is referred to as a “corporate dis tribution.” See Black’s Law Dictionary 508 (8th ed. 2004). Notably, income taxes are assessed to the shareholder on the entire amount of income earned by the corporation (in an amount proportionate to his or her ownership interest); it is completely irrelevant to this determination whether the income is retained or distributed. See K.S.A. 79-32, 139. Thus, it is possible for S corporation shareholders to be taxed on income that they never received.
2. The Kansas Child Support Guidelines
The Guidelines define “domestic gross income” as “income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent.” Guidelines § II. D. (2007 Kan. Ct. R. Annot. 108-09). As it is used within the Guidelines, the term “income” has been interpreted to mean “ ‘every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever.’ ” In re Marriage of Callaghan, 19 Kan. App. 2d 335, 336, 869 P.2d 240 (1994) (quoting 2 Elrod, Kansas Family Law Handbook § 14.024, p. 14-11 [1990]).
3. Relevant Kansas Case Law
Kansas courts do not presume that an individual’s share of an S corporation’s income should be included as income for purposes of calculating child support. In re Marriage of Brand, 273 Kan. 346, 356, 44 P.3d 321 (2002). Identifying what income is “received” for the purpose of calculating child support depends on a factual analysis applied on a case-by-case basis. 273 Kan. at 356. There is no bright-line rule, because there are a variety of circumstances unique to S corporations that makes this determination difficult. 273 Kan. at 358. In Brand, our Supreme Court gave the following examples of why this determination is so difficult: (1) it may be necessary for the corporation to retain all profits during certain years, (2) not every shareholder can force the corporation to make distributions, and (3) not all distributions increase the shareholders’ ability to pay support.
The Brand court provided guidance on how to determine whether S corporation income should be included in each individual case. Under a section titled “Factors for Consideration in Determining Income” the court identified the following factors: (1) the corporation’s past earnings history, (2) ownership share, and (3) the shareholder’s ability to control distribution or retention of the net profits of the business. It emphasized that heightened scrutiny should be exercised if the shareholder can control distributions. 273 Kan. at 359-60. The Brand court also stated that “[a]n overview of the entire factual history of retained earnings and distributions is recommended.” 273 Kan. at 357.
4. Analysis
The district court here did not make any determinations regarding the corporation’s past earnings, its histoiy of distributions, or Burke’s ownership share in the S corporation. This is because, completely unlike the facts in Brand, the only issue before the court in this case is whether the dividends that were actually distributed to Burke are income for purposes of calculating child support. The Brand factors referenced above are aimed at determining whether a shareholder is attempting to hide money in the form of retained earnings income within the S corporation to avoid child support payments.
Instead of the Brand factors, the district court here focused its analysis on what happened to the monetary distribution after the income was disbursed to Burke. In so doing, the court determined the monetary dividend distribution was not “received” by Burke and was not “available” to Burke for purposes of paying child support. We disagree.
In order to accurately analyze whether the total distribution received by Burke from Berco is income for purposes of calculating child support, we will discuss separately (a) that portion of the distribution that Burke used to pay Berkley for die stock pursuant to the terms of the Stock Purchase Agreement; and (b) that portion of the distribution that Burke used to pay taxes on his share of Berco’s income.
(a) That Portion of the Distribution Used to Pay Berkley for the Stock
We find that portion of the distribution made to Burke and used to pay Berkley for the stock is income for purposes of calculating child support. As a preliminary matter, the distribution meets the definition of domestic gross income set forth in the Guidelines: “income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent.” Guidelines § II. D. (2007 Kan. Ct. R. Annot. 108-09). As it is used within the Guidelines, we have interpreted income as “ ‘every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever.’ ” Callaghan, 19 Kan. App. 2d at 336.
Notably, subsequent “availability” of income received is not mentioned anywhere in the Guidelines. Thus, the fact that Burke chose to use his income to pay for an asset he purchased does not change the character of the money from “income” to “non-income” for purposes of calculating child support under the Guidelines. Burke certainly did not seek to exclude from his income— for purposes of calculating child support — the $10,000 he paid to Berkley towards the stock at the time the Stock Purchase Agreement was executed. And, regardless of how much or how little he actually receives in income as dividends from the Berco stock, Burke must pay the remaining balance of the sums owed by December 31, 2011. Thus, the Stock Purchase Agreement clearly envisions that Burke may have to pay for the stock with income other than that he receives from Berco as distributions. To that end, if Burke used income he received from his regular paycheck to pay Berkley for the stock, the paycheck income would not somehow become “unavailable income” for purposes of calculating child support.
We find the Stock Purchase Agreement is no different than income received that is pledged toward a home mortgage or a note to purchase a car. In those cases, the income received and pledged toward the home mortgage or the car payment is “not available” to pay child support in the sense that the dollars have been allocated to specific obligations. At the end of the day, however, the income received goes towards purchase of an asset that ultimately increases the net worth of the individual making the payment.
In making this finding, we recognize that Burke would have no Berco income but for the purchase of the Berco stock at issue. Such a scenario, however, is no different than purchasing on credit any other asset that produces income. Consider, for example, if Burke would have taken out a loan from a bank to purchase a rental home. In such a circumstance, we would reject an argument that rental income received by Burke was not income for purposes of calculating child support simply because Burke was utilizing the rental income received from his tenant to pay back the bank loan. This is because the bank loan, as it is paid back over years, increases Burke’s net worth in the rental home. By the time his children are at the age of majority, Burke would be the owner of valuable real estate debt free and at the direct expense of his children. For these reasons, we find that portion of the distribution made to Burke and used to pay Berkley for the stock is income for purposes of calculating child support.
(b) That Portion of the Distribution Used to Pay Taxes on Berco Income Attributed to Burke
This court previously has held that distributions used to pay income tax on money distributed by an S corporation also should be included in gross income for purposes of calculating child support. In re Marriage of Unruh, 32 Kan. App. 2d 770, 88 P.3d 1241 (2004). In Unruh, the respondent argued that he did not receive the benefit from an S corporation’s distributions because the distribution was designed to pay the income tax generated by the corporation. The district court excluded the entire distribution that the shareholder claimed was used to pay the taxes. This court reversed, distinguishing (1) the distribution used to pay income tax on the corporation’s retained earnings from (2) the distribution used to pay income tax on the money distributed. This court held that only the portion of the distribution used to pay income tax on the retained earnings should be excluded. 32 Kan. App. 2d at 776.
In so holding, this court reasoned that, under the Guidelines, federal and state income taxes already are considered in the child support schedules as income that is not available for spending because the charts used to calculate gross monthly income are based upon after-tax income. “By reducing [the father s] income on the distributions he received to an after-tax amount, the district court caused the income tax burden to be considered and reduced two times, once by the court and once in the child support schedules.” Unruh, 32 Kan. App. 2d at 776.
We find Unruh to be directly on point regarding this issue. Accordingly, we hold that portion of the distribution used to pay taxes on Berco income distributed to Burke is income for purposes of calculating child support under the Guidelines. Because there is no evidence before us regarding how much of the distribution went to pay income tax on Berco’s retained earnings attributed to Burke (if any) and how much of the distribution went to pay income tax on the income actually distributed to Burke, we must remand for such a determination by the district court.
B. The Effective Date for Any Change in Child Support
Lisa argues the child support modification order should become effective on January 1, 2006, not December 1, 2006. In support of this argument, Lisa maintains her original motion to modify child support was filed December 28, 2005, and that K.S.A. 60-1610(a) requires any subsequent modification order to date back to 1 month after the motion to modify was filed. We disagree.
Interpretation of a statute is a question of law over which this court has unlimited review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
K.S.A. 2007 Supp. 60-1610(a) states in part:
“The court may modify or change any prior order . . . within three years of the date of the original order or a modification order, when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents. . . . The court may make a modification of child support retroactive to a date at least one month after the date that die motion to modify was filed with the court.”
The statutory language used here demonstrates that the legislature intended to give the district court broad authority to set the effective date of the modification. The statute restricts the district court from setting the effective date earlier than 1 month after the motion was filed. The statute provides the district court with discretion, however, to set the effective date at any time after that month.
“Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as tire discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citation omitted.]” State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007).
Lisa’s original motion was unrelated to the primary reason resulting in modification. Therefore, it was reasonable for the district court to set the effective date 1 month after Lisa’s amended motion. We find no abuse of discretion and affirm the decision below.
Affirmed in part, reversed in part, and remanded with directions. | [
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Leben, J.:
Lazaro Gutierrez injured his back while working for Dold Foods, Inc. The Kansas Workers Compensation Board gave him a permanent partial disability award of 62% based on the average of his wage loss (61%) and his loss of ability to perform work-related tasks (62%). The average of wage and task loss is referred to as a work-disability award, and a worker is entided to that amount for an unscheduled permanent partial disability award under K.S.A. 44-510e(a) unless the person is earning 90% or more of his or her pre-injury wage. In that case, the worker gets a lesser award.
Dold Foods argues that Gutierrez should receive a lower award because Dold Foods fired him for cause based on an inaccurate statement Gutierrez made on a form he had filled out for a temporary-employment firm, which placed him at Dold Foods. But nothing in the Kansas workers compensation statute suggests lowering an award for such a reason. In addition, we agree with the Workers Compensation Board that the case upon which Dold Foods relies, Ramirez v. Excel Corp., 26 Kan. App. 2d 139, 979 P.2d 1261, rev. denied 267 Kan. 889 (1999), is distinguishable— and it may no longer be valid anyway given the Kansas Supreme Court’s recent admonitions to follow the statute as it is written.
The availability of workers compensation benefits to injured employees arises under statutes, not under the court-made common law. The Kansas Legislature, like those of other states, has enacted a system under which employees lose the right to sue their employers for most on-the-job injuries but gain guaranteed compensation under workers compensation laws. We must begin our anal ysis, as we do in any case governed by a statute, with the specific words chosen by the legislature.
The Kansas Workers Compensation Act Provides a Detailed Method for Calculating a Permanent Partial Disability Award.
The Kansas Workers Compensation Act provides specified recoveries for some injuries that are listed on a schedule, ranging from 225 weeks of benefit payments for the loss of use of a shoulder to 15 weeks for the loss of use of the little finger. See K.S.A. 44-510d; Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 7, 154 P.3d 494 (2007); Stephen v. Phillips County, 38 Kan. App. 2d 988, 990, 174 P.3d 452, rev. denied 286 Kan. 1186 (2008). When a worker has a lasting injury not Usted on the schedule that causes partial disability, K.S.A. 44-510e(a) provides a benefit for the permanent partial general disability. All of the provisions we review in the rest of this opinion are from that statute, K.S.A. 44-510e(a).
The statute begins with a two-part definition of how to calculate a percentage used to determine that award; the worker s percentage loss of ability to perform work-related tasks is averaged with the percentage loss of earnings:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.”
The average of the task-loss and wage-loss percentages is “the percentage of permanent partial general disability.” To determine the final award, that percentage is multiplied by a payment rate, which is based on the worker’s average wages up to a statutory maximum, and a certain number of weeks, which is based in part on how long temporary disability payments were made.
So far, the determination of the percentage of permanent partial general disability seems simple enough: average the task-loss and wage-loss percentages. But the statute provides two other wrinkles by including both a ceiling and a floor on potential awards.
While factoring the post-injury wage loss into the award provides partial compensation for wage loss, the statute provides a cap and a bottom to potential awards. The statute limits the award when a worker is earning at least 90% of the wage earned before the injury:
“An employee shall not be 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.”
This portion of the statute sets a ceding on the award when the worker is earning at least 90% of pre-injury wages. In that event, the percentage of permanent partial general disability may not exceed the percentage of functional impairment, which is the extent that a person has lost some of his or her body’s capability. The statute also provides how functional impairment is to be determined — by medical testimony based on a standard guide on the evaluation of impairments. The statute separately sets a floor on the award: “In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment.”
In sum, let’s review how the statute says to calculate the percentage of permanent partial general disability. Our Supreme Court has summarized the general rule: “Stated mathematically, the percentage of permanent partial general disability is equal to the percentage of task loss plus the percentage of wage loss divided by two.” Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 4, 161 P.3d 695 (2007). Because this award provides some compensation based on post-injury wage loss, we often refer to it as a work-disability award. See Graham, 284 Kan. at 556. If the employee is earning more than 90% of pre-injury wages, however, the percentage of permanent partial general disability may not exceed the percentage of functional impairment. Because this award is based solely on functional impairment, we sometimes refer to it as a functional-impairment award. But neither of those terms is found in the statute — they merely describe two different methods set out in the statute for calculating the percentage of permanent partial general disability.
The Workers Compensation Board Followed the Statutory Formula.
The Workers Compensation Board found that Gutierrez had lost the ability to perform 62% of the work-related tasks he had done in the past. The Board found that his post-injury wages were 61% lower than they had been; he averaged $662.89 per week before the accident but only $260 per week at the time of his hearing. The Board averaged those percentages (62% and 61%) — apparently using only whole numbers — and determined that Gutierrez’ percentage of permanent partial general disability was 62%. Since Gutierrez was earning far less than 90% of his pre-injury wages, the statutory ceding on a partial general disability award was not applicable. The Board’s calculations thus followed the statutory formula.
Dold Foods’ Argument Is Based on Concepts Not Found in the Statutory Language, and the Board Rejected Its Argument.
Dold Foods does not challenge the accuracy of any of the numbers used by the Board. Dold Foods does not claim the Board’s factual finding of a 62% task loss is unsupported by the evidence. Nor does Dold Foods claim that the Board’s factual finding was inaccurate that Gutierrez’ wages were down 61% from his preinjury wages. Instead, Dold Foods argues that Gutierrez is entitled only to a functional-impairment award, not a work-disability award, based on concepts not found in the statute.
While Dold Foods doesn’t rely on the statute, it does rely on some prior cases of the Court of Appeals, which it contends suggest that Gutierrez should be limited to a functional-impairment award. Gutierrez’ functional-impairment rating was 12.5%, far less than the 62% work-disability percentage he received.
Our court first ruled in 1994 that an employee must make a good-faith effort to retain or find employment after an injury as a condition of eligibility for a work-disability award. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Later cases determined that a wage higher than actually earned could be imputed to a worker who did not make a good-faith effort to find appropriate employment after an injury. E.g., Castro v. IBP, Inc., 29 Kan. App. 2d 475, Syl. ¶ 4, 30 P.3d 1033 (2001); Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, Syl. ¶¶ 7-8, 944 P.2d 179 (1997). In a more recent ruling, a panel of our court held that “any showing of the potential for accommodation at the same or similar wage rate precludes an award for work disability.” Mahan v. Clarkson Constr. Co., 36 Kan. App. 2d 317, Syl. ¶ 2, 138 P.3d 790, rev. denied 282 Kan. 790 (2006). In these cases, our court did not cite any statutory language that directly supported the ruling but generally concluded that it would be unreasonable to interpret the statutory language so as to allow workers “to merely sit at home, refuse to work, and take advantage of the workers compensation system.” Mahan, 36 Kan. App. 2d 317, Syl. ¶ 3; Copeland, 24 Kan. App. 2d 306, Syl. ¶ 6; Foulk, 20 Kan. App. 2d at 284.
This good-faith requirement has been extended to a situation in which a worker was fired for cause after having returned to work from an injury. Ramirez v. Excel Corp., 26 Kan. App. 2d 139 (worker fired for false statements in employment application denied work-disability award); Perez v. IBP, Inc., 16 Kan. App. 2d 277, 826 P.2d 520 (1991) (worker fired for absenteeism denied work-disability award). But work-disability awards have been approved for cases in which an employee was terminated in an economic layoff or other than for cause. Stephen, 38 Kan. App. 2d at 993, (sheriff who lost re-election could receive work-disability award); Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 116 P.3d 38 (2005) (employee laid off for economic reasons could receive work-disability award); Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995) (same). And in one case, a work-disability award was upheld even though the employer claimed to have fired the worker for cause based on customer complaints. The court noted that the employee’s work restrictions didn’t end just because her job did and that the Board found that there was no evidence of an investigation into the complaints or evidence of bad faith by the employee. Niesz v. Bill’s Dollar Stores, 26 Kan. App. 2d 737, 740-41, 993 P.2d 1246 (1999).
Dold Foods argues that this case is like Ramirez: Gutierrez was fired for a false statement in his employment application, and he would still be employed at Dold Foods in a well-paid position that accommodates his work restrictions had he not been fired for cause. Thus, Dold Foods essentially argues that a wage should be imputed to Gutierrez sufficient to eliminate his eligibility for a work-disability award.
The Board rejected Dold Foods’ argument. The Board noted that the statute “contains no . . . provision that failing to make a good faith effort to retain employment is a valid defense to a claim for disability benefits.” The Board said that a “literal reading” of the statute would indicate that Gutierrez qualifies for a work-disability award. “But the appellate courts have not always followed the literal language of the statute,” the Board said, citing Foulk, Copeland, Ramirez, and Mahan. The Board also noted that the Kansas Supreme Court “has recently sent two strong signals that the Workers Compensation Act should be applied as written,” not infused with court-created concepts, citing Graham and Casco. The Board ultimately concluded, however, that the case most closely on point, Ramirez, was distinguishable because the employment application in it was the employer’s, but Gutierrez filled out an application for a temporary staffing agency, not Dold Foods. On the factual record before it, the Board concluded that Dold Foods had not shown that Gutierrez failed to make a good-faith effort to earn as much as he could after the injury:
“When [Gutierrez] was later hired by respondent he completed a new job application that did not ask about prior surgeries. [The] facts neither establish that respondent acted in good faitir in terminating claimant [nor] that claimant failed to make a good faith effort to perform accommodated work. Claimant is not attempting to manipulate the workers compensation system. Accordingly, claimant is not precluded from receiving a work disability under K.S.A. 44-510e.”
We Find No Basis Here to Overturn the Board’s Decision.
With the language of the statute, prior caselaw, and the facts of Gutierrez’ case in mind, we turn to consideration of the Board’s ruling. Appellate courts are “highly deferential” to the Board’s factual conclusions. Hall v. Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 1, 189 P.3d 508 (2008). We also give deference to the Board’s interpretation of the Workers Compensation Act when there is a rational basis for its interpretation, Casco, 283 Kan. 508, Syl. ¶ 5, but the court must ultimately determine the statute’s meaning. Graham, 284 Kan. 547, Syl. ¶ 2.
This case could be easily decided if we were to determine that Foulk and later cases based on it were no longer valid after the Supreme Court’s rulings in Casco and Graham. Indeed, a strong argument for such a ruling could be made.
The Supreme Court in Graham applied the same work-disability formula from K.S.A. 44-510e(a) that is at issue in Gutierrez’ case. One of the issues in Graham involved how to interpret the phrase that placed a statutoiy ceiling on an award: “as long as the employee is engaging in any work for wages equal to 90% or more” of the worker’s previous average wages. (Emphasis added.)
Before the case reached the Supreme Court, a panel of our court heard the case. The panel cited Foulk for the proposition that “[t]he legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage.” Graham v. Dokter Trucking Group, 36 Kan. App. 2d 521, 526, 141 P.3d 1192 (2006). The panel then held that because the employee had worked enough in some weeks after the injury that he made 90% of his prior average wage in those weeks, he should be precluded from a work-disability award. Our panel inteipreted the phrase “is engaging in any work” to include work that the employee could have engaged in but didn’t. 36 Kan. App. 2d at 526-28. A similar approach had been taken in Foulk, where our court rejected the worker’s argument that the statute says “engages in any work,” not “possess[es] the ability to engage in work.” 20 Kan. App. 2d at 283-84.
But the Supreme Court disagreed in Graham, rejecting this interpretation and emphasizing that the statutoiy language — “is engaging in work”- — could not be interpreted to mean “is able to earn”:
“The panel began its discussion by equating the statute’s use of the phrase ‘engaging in work’ to ‘able to earn.’ K.S.A. 44-510e(a) prohibits permanent partial general disability compensation if an employee is ‘engaging in work’ for wages equal to 90 percent or more of the average preinjuiy wage. The panel said the record was insufficient to support claimant’s contention that he was ‘unable to earn’ that amount. We see a distinction with impact between the actual ‘engaging in work’ of the statute and the theoretical ‘able to earn’ of the Court of Appeals. Claimant may be theoretically able to earn more, but substantial evidence supports the Board’s determination that his actual pain prevents the theory from becoming a reality.
“The Court of Appeals panel also reexamined claimant’s postinjury records and found that, in certain weeks, he earned 90 percent or close to 90 percent of his preinjury wages. [Citation omitted.] In doing so, the panel implicitly rejected the apples-to-apples approach of the Board and ALJ, i.e., comparing preinjury and postinjuiy weekly averages rather than comparing a preinjury average to cherry-picked postinjury weeks. Again, the plain language of the statute did not support the panel’s method; the statute repeatedly references gross weekly wage averages.” 284 Kan. at 558.
The Supreme Court in Graham emphasized that, at least on the issues before it, K.S.A. 44-510e(a) was plain and unambiguous, so that the court could not “read the statute to add something not readily found in it.” 284 Kan. at 554, 556-59.
The Casco case also emphasized the plain language of the statute. In Casco, the Supreme Court overruled a 1931 case interpreting the workers compensation statute because the court concluded in 2007 that the earlier case “did not follow a key tenet of statutory construction — courts cannot add something to a statute that is not readily found in the language of the statute.” 283 Kan. at 525 (overruling Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 [1931]).
Dold Foods’ argument certainly seems to violate the principal teaching of Graham and Casco—that you don’t add something to a statute’s requirements that isn’t actually found in the statute.
Ultimately, though, we need not determine whether Graham and Casco (and Hall, which declined an invitation to overrule Casco) have effectively removed any persuasive precedential authority from Foulks, Castro, Copeland, Mahan, and Ramirez: the Board’s conclusions are supported by its factual findings and are not contrary to the actual ruling in any of those cases.
First, the Board concluded that Dold Foods had not established “that claimant failed to make a good faith effort to perform accommodated work.” The Board’s finding that a party has failed to meet its burden of proof is a negative finding, which may be overturned on appeal only on a showing that the Board arbitrarily ignored undisputed evidence or acted based on bias, passion, or prejudice. Hall, 286 Kan. 777, Syl. ¶ 3. If a good-faith requirement were to exist, even though it is not found in the statute, surely the employer would have the burden to demonstrate the worker’s failure to make a good-faith effort. We cannot overturn the Board’s negative finding that Dold Foods failed to do so. Even if we apply the normal standard for review for the Board’s factual findings on the assumption that Gutierrez had the burden to show his good-faith efforts, evidence in the record supported the Board’s implicit factual finding that he did so. Any factual finding of the Board must be upheld when evidence in the record, taken in the light most favorable to the prevailing party, supports the finding. Hall, 286 Kan. at 780.
Second, the Board concluded that the Ramirez case, the one most closely analogous to Gutierrez’, was different in an important way. Specifically, the Board noted that the employee in Ramirez had given false information in an employment application submitted directly to the employer where the injury occurred, while Gutierrez submitted his allegedly false information to a temporary-staffing agency, not Dold Foods. The Board’s factual finding on that point is supported by the record, and the difference is not insignificant. As the Board noted, the temporary-staffing agency obtained workers who were employed on a probationary basis. After completing that probationary period, the workers filled out another application directly with Dold Foods, and that application did not ask about past injuries or surgeries. And Gutierrez, who doesn’t speak English, said he didn’t personally fill out the staffing agency’s application, which asked about past injuries, and that the person who helped him fill out that form didn’t ask him about past injuries. While there is evidence in support of Dold Foods’ position, there is also support in favor of Gutierrez’. We cannot reverse the Board’s factual finding in the face of conflicting evidence.
We note that a panel of our court applied Ramirez in a case decided last year. Gasswint v. Superior Industries Int’l-Kansas, Inc., 39 Kan. App. 2d 553, 558-59, 185 P.3d 284 (2008). In that case, the Board denied a work-disability award when the claimant, who was in an accommodated position, was fired for falsifying expense claims. Our court upheld the Board, finding that sufficient evidence in the record supported the Board’s conclusion that the claimant had been fired for cause. But the claimant in Gasswint did not argue that the statute had no bar to a work-disability award when a claimant is fired for cause or that the Board had in any way wrongly interpreted the statute. Instead Gasswint based her appeal on the claim that the Board’s factual findings disregarded undisputed evidence or showed bias. Thus, the legal rules set forth in Ramirez and other cases were not disputed in Gasswint.
Given the substantial question regarding whether Ramirez remains good law after Graham and Casco, we decline to extend Ramirez to the factual situation at issue in Gutierrez’ case. Given the Board’s factual findings that Dold Foods had not established that Gutierrez “failed to make a good faith effort to perform accommodated work,” his case is more like Niesz, in which a work-disability award was affirmed and the Board found there had been no evidence that the employee showed bad faith, even though she was fired based on a claim of just cause to do so. 26 Kan. App. 2d at 740-41. The Board’s factual findings in Gutierrez’ case are supported by the record, and the Board’s award tracks the approach set out in the statute for calculating it. The decision of the Board is therefore affirmed. | [
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Knudson, J.:
J.H. was convicted as an extended jurisdiction juvenile pursuant to K.S.A. 38-16,126. The State subsequently filed a motion to revoke probation alleging J.H. violated the provisions of the juvenile sentence and committed new offenses. After an evidentiary hearing, the trial court revoked J.H.’s probation, ordering that he serve the 48-month adult criminal sentence previously imposed pursuant to 38-16,126(a)(2). J.H. appeals, challenging the sufficiency of the evidence to establish a probation violation and the trial court’s refusal to consider sentencing alternatives before sending J.H. to prison.
We affirm.
The underlying facts are not in material dispute. J.H. was convicted of aggravated batteiy in violation of K.S.A. 21-3414(a)(1)(A), a severity level 4 person felony. Under K.S.A. 21-4704, J.H.’s sentence carries a presumptive disposition of imprisonment. At the evidentiary hearing to revoke probation, the State presented evidence that J.H. had violated the provisions of probation and committed new criminal offenses. J.H. did not present any evidence at the hearing. The trial court revoked probation and ordered J.H. to serve the alternative 48-month adult sentence that had been previously imposed.
Revocation of Probation
Our standard of review is to ascertain whether substantial competent evidence was presented at the revocation hearing to support revocation. K.S.A. 38-16,126(b). “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
On appeal, J.H. argues the police officer s testimony was not corroborated and the brass knuckles and other physical evidence were not introduced into evidence. All true, but corroboration and the admission of the instruments of the crime are not necessary to justify revocation of J.H.’s probation. The fact is that there was substantial competent evidence introduced through the testimony of witnesses to establish the violations of probation. Undoubtedly, the State’s failure to present additional corroborative evidence might influence the trier of fact but does not present a persuasive issue on appeal. An appellate court does not weigh evidence or normally look to what was not introduced into evidence when considering a sufficiency issue; our duty is to consider the adequacy of the evidence that was presented. Under our standard of review, the trial court’s findings are sufficient to support a conclusion J.H. violated probation.
Imposition of Adult Sentence
J.H. contends that under K.S.A. 38-16,126 the district court was required to consider alternatives other than commitment. The State argues that under 38-16,126 the district court has no discretion other than to order commitment.
Interpretation of a statute is a question of law over which we exercise unlimited review. State v. Bryan, 281 Kan. 157, 130 P.3d 85 (2006).
K.S.A. 38-16,126(b) (now K.S.A. 2007 Supp. 38-2364[b]) provides:
“When it appears that a person convicted as an extended jurisdiction juvenile has violated the conditions of the juvenile sentence or is alleged to have committed a new offense, the court, without notice, may revoke the stay and probation and direct that the juvenile offender be taken into immediate custody and deliver[ed] to the secretary of corrections pursuant to K.S.A. 21-4621, and amendments thereto. The court shall notify the juvenile offender and such juvenile offender’s attorney of record, in writing by personal service, as provided in K.S.A. 60-303, and amendments thereto, or certified mail, return receipt requested, of the reasons alleged to exist for revocation of the stay of execution of the adult sentence. If the juvenile offender challenges the reasons, the court shall hold a hearing on the issue at which the juvenile offender is entitled to be heard and represented by counsel. After the hearing, if the court finds by substantial evidence that the juvenile has violated the conditions of the juvenile sentence, the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered pursuant to subsection (a)(2). Upon such finding, the juvenile’s extended jurisdiction status is terminated, and juvenile court jurisdiction is terminated.” (Emphasis added.)
In construing K.S.A. 38-16,126(b) we are constrained by rules of statutory construction.
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” State v. Bryan, 281 Kan. at 159.
A plain reading of 38-16,126(b) leaves no doubt as to legislative intent. First, when it appears to the trial court that the offender has violated the terms of probation, the court may revoke probation without notice or hearing and direct that the offender be taken into immediate custody and delivered to the Secretary of Corrections. This explicit provision does not give sentencing discretion to the trial court. Second, if tire court concludes a hearing should be held, or if the offender requests a hearing as to the reasons alleged to support revocation, then a stay on the order of incarceration shall be entered and an evidentiary hearing conducted. The sole purpose of the hearing is to determine whether there exists substantial competent evidence to support revocation. If the trial court after hearing revokes tire juvenile sentence, the court is specifically directed to enforce imposition of the adult sentence previously ordered under 38-16,126(a)(2).
J.H. focuses on one isolated sentence from the statute to support his claim of error: “The ongoing jurisdiction for any adult sanction, other than the commitment to the department of corrections, is with the adult court.” K.S.A. 38-16,126. Contrary to J.H.’s argument, this provision does not eviscerate the explicit and unambiguous language of the statute we have discussed; instead, it makes clear prospective jurisdiction resides in the adult court, rather than the juvenile court.
We interpret K.S.A. 38-16,126(b) to compel incarceration; the district court did not have jurisdiction to consider sentencing alternatives.
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Pierron, J.:
Michael and Viola Bitner appeal the grant of the motion for summary judgment in favor of Watco Companies, Inc., et al. (Watco), in a property dispute case involving land previously used for railroad purposes.
This case centers on seven lots in Pittsburg, Kansas — lots 42 through 48 of Block One of Pittsburg Town Company’s First Addition. In 1889, the Pittsburg Town Company gave some of its interests in lots 42 through 48 to tire Nevada and Minden Railway Company. The parties disagree on whether these interests were right-of-way interests or fee simple absolute interests in the lots. Through consolidation of its parent company, Nevada and Minden Railway Company later became known as the Missouri Pacific Railway Company.
In April 1987, the Missouri Pacific Railway Company conveyed its interests in lots 42 through 48 to the Southeast Kansas Railroad Company. Again, the parties dispute whether these were right-of-way or fee simple interests. Southeast Kansas Railroad Company then merged into South Kansas and Oklahoma Railroad, Inc. South Kansas and Oklahoma Railroad is a wholly owned subsidiary of Watco.
Bitner lives in Frontenac, which adjoins Pittsburg, and owns a business on a parcel of land in the south half of lots 42 through 48 in Pittsburg. In January 2008, Bitner brought suit against Watco, claiming that the railroad had abandoned its interests in lots 42 through 48 and, therefore, he has a reversionary interest in the land used for railroad tracks and/or railroad purposes.
Portions of the railroad tracks at issue have been removed from lots 42 through 48, but Watco denies that the railroad has abandoned the land. Bitner claims the railroad’s interests have been abandoned because a football field and track have been built on the lots at issue.
No party to this case has filed for an abandonment order with the Surface Transportation Board (STB) of the United States Department of Transportation, and no such order has been issued. Watco filed a motion for summaiy judgment. The district court, applying federal law on railroad abandonment, granted the motion because an abandonment order had not been granted.
Older cases refer to the Interstate Commerce Commission. See Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-23, 331-32, 67 L. Ed. 2d 258, 101 S. Ct. 1124 (1981). However, the name has since been changed to the STB. 49 U.S.C. § 701 (2006) et seq.; see Barclay v. United States, 351 F. Supp. 2d 1169, 1171 (D. Kan. 2004) (citing Presault v. ICC, 494 U.S. 1, 5-8, 108 L. Ed. 2d 1, 110 S. Ct. 914 [1990]); 49 U.S.C. § 10903 (2006) et seq.
Bitner claims that the district court erred in granting summaiy judgment because it (1) applied federal law instead of Kansas law in determining that Watco has not abandoned its interests in lots 42 through 48 and (2) did not rule on whether Watco has right-of-way or fee simple absolute interests in the land. Because resolution of the abandonment issue can control the outcome of this case, we will discuss abandonment and preemption first.
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for 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. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009). On the issue of abandonment, there is no factual dispute as to an order for abandonment. Both parties agree that no order for abandonment has been issued by the STB. Therefore, a de novo review is required on this issue.
The district court applied federal law in finding that Watco had not abandoned its interests in the lots because there was no abandonment order. See 49 U.S.C. § 10903. Preemption of state law is not favored by the courts “in the absence of persuasive reasons— either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained.” Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963). However, under the Interstate Commerce Act, the STB has authority to “regulate various activities of interstate rail carriers, including their decisions to cease service on their branch lines.” Chicago & N.W. Tr. Co., 450 U.S. at 313. The Act is one of “the most pervasive and comprehensive federal regulatory schemes.” 450 U.S. at 318. “The exclusive and plenary nature of the Commission’s authority to rule on carriers’ decisions to abandon lines is critical to the congressional scheme, which contemplates comprehensive administrative regulation of interstate commerce.” 450 U.S. at 321. Therefore, “state efforts to regulate commerce must fall when they conflict with or interfere with federal authority” on railroad abandonment. 450 U.S. at 319.
The first step, then, is to determine if the Kansas laws on railroad abandonment conflict or interfere with the federal regulatory scheme. See 450 U.S. at 319. The Kansas and federal laws on abandonment are not inconsistent: Cessation of service or long disuse of the line, coupled with the intention not to resume such service or use constitutes abandonment. See 450 U.S. at 318-23. The Kansas law lays out the same basic test for abandonment: “ ‘[B]oth intent to abandon and action to carry out that intent must combine.’ ” Miller v. St Louis, Southwestern Ry. Co., 239 Kan. 198, 201, 718 P.2d 610 (1986). Further, both Kansas and federal law require that an order of abandonment be issued before a railroad right-of-way can be abandoned. Under K.S.A. 2009 Supp. 66-525(a)(1), a railroad right-of-way will not be considered abandoned unless an abandonment order has been issued by the appropriate federal or state authority. The federal law provides:
“A rail carrier providing transportation subject to the jurisdiction of the [STB] under this part who intends to . . . abandon any part of its railroad lines . . . must file an application relating thereto with the [STB], An abandonment or discontinuance may be carried out only as authorized under this chapter.” 49 U.S.C. § 10903(a)(1)(A) (2006).
Bitner relies on two Kansas cases to give the Kansas law on abandonment: Miller, 239 Kan. 198; and Martell v. Stewart, 6 Kan. App. 2d 387, 628 P.2d 1069 (1986). Neither of these cases requires that an abandonment order be issued before a railroad’s right-of-way interests will be deemed abandoned. However, both of these cases were decided before the 1986 enactment of K.S.A. 66-525, which added the abandonment order requirement, became effective. See L. 1986, ch. 247, sec. 1; K.S.A. 2009 Supp. 66-525(a)(l). Therefore, as Watco points out, these cases have been superseded by the statute, and Bitner’s analysis of Kansas law is incomplete.
Kansas law is, therefore, not in conflict with the federal law on a railroad’s right-of-way abandonment. Because there is no conflict between the state and federal law, the district court erred in applying federal law to this case. See Chicago & N.W. Tr. Co., 450 U.S. at 319. However, the result is the same regardless of which law is applied. State and federal law both require that an abandonment order be issued before a court can rule on abandonment. If a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong grounds or assigned erro neous reasons for its decision. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007). Therefore, summaiy judgment was appropriate even though the district court applied the wrong law. The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact because no party ever filed for an abandonment order, which is a prerequisite for a finding of abandonment.
The proper recourse for Bitner is to seek an abandonment order from the STB. The United States Supreme Court has said: “There is no requirement... that the [abandonment] application be made by the carrier whose operations are sought to be abandoned. It has been recognized that persons other than carriers who have a proper interest in the subject matter may take the initiative. [Citation omitted.]” Thompson v. Texas Mexican R. Co., 328 U.S. 134, 145, 90 L. Ed. 1132, 66 S. Ct. 937 (1946); see also Louisiana & Arkansas Ry. Co. v. Bickham, 602 F. Supp. 383, 384-85 (M.D. La. 1985) (under 49 U.S.C. § 10903, landowner should have filed for an abandonment order before destroying railroad tracks).
Bitner also argues that Watco does not own the land in fee simple, but only has right-of-way interests over the lots. The district court declined to rule on this issue, noting that there may be some ambiguity regarding Watco’s interests in the lots. But because summary disposition was proper based on the lack of an abandonment order, we need not address this issue. No matter what interests Watco has, those interests have not been abandoned.
Further, even if Bitner is correct in his argument that Watco only has right-of-way interests over the lots, his argument fails based on a simple examination of the statutory language. Under K.S.A. 2009 Supp. 66-525(a)(l), “a railroad right-of-way shall be considered abandoned . . . following the issuance of an abandonment order.” (Emphasis added.) Again, the result is the same. Since there has been no order of abandonment entered, Watco has not lost its right-of-way interests, whatever they are.
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Malone, J.:
This is Jeriy D. Rice’s fourth appeal before the Kansas appellate courts. In this appeal, Rice challenges the district court’s denial of his motion to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel. We reverse and remand with directions for the district court to allow Rice to amend his motion.
On March 24, 1994, Rice was convicted by jury trial of first-degree murder for the death of his wife who disappeared in 1992 and whose body has never been found. The underlying facts were set forth by the Kansas Supreme Court in State v. Rice, 261 Kan. 567, 570-79, 932 P.2d 981 (1997) (Rice I). We will review only the procedural history of the case. Following his conviction, Rice pursued a direct appeal to the Kansas Supreme Court raising numerous issues, including a claim of ineffective assistance of trial counsel. Specifically, Rice claimed he received ineffective assistance of trial counsel because his Missouri-licensed attorney had mistakenly advised Rice that if he testified at trial, all of his prior felony convictions would have automatically come into evidence. Pending the direct appeal, the Kansas Supreme Court remanded the case for an evidentiary hearing on the ineffective assistance of counsel claim pursuant to State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986).
On remand, Rice’s trial counsel, Willard Bunch, testified that he knew Rice had numerous felony convictions and believed that if Rice had testified at trial all of those convictions could come into evidence, as he understood the rule to be in Missouri and in federal court. For that reason, Bunch advised Rice not to testify. Bunch stated he did not consult with Kansas counsel on the question. Bunch testified that had he known the rule in Kansas, he would not have hesitated to advise Rice to testify on his own behalf. Rice also testified at the hearing and stated that his decision not to testify at trial was based completely on Bunch’s advice that all of his prior convictions would come into evidence if he testified. After hearing the evidence, the district court found that Bunch had labored under an incorrect understanding of Kansas law, causing him to advise Rice not to testify. Nevertheless, the district court found that Bunch’s representation was not so deficient as to require a new trial. See Rice I, 261 Kan. at 595-98.
On appeal, the Kansas Supreme Court determined that Bunch’s advice that Rice should not testify at trial was not based on any justifiable strategic considerations but instead was based on counsel’s attempt to practice law in a jurisdiction where he was not licensed and without having a correct understanding of the Kansas rules of evidence. Accordingly, a unanimous court found that Bunch’s performance as counsel was unconstitutionally deficient. 261 Kan. at 607. However, a majority of the court was not convinced that Rice established that, had he testified, there was “a reasonable probability that the result of tire proceeding would have been different.” 261 Kan. at 609. Consequently, the Supreme Court upheld the district court’s ruling that Rice was not deprived of a fair trial based on ineffective assistance of trial counsel, and Rice’s conviction was affirmed. 261 Kan. at 609. Three justices dissented and expressed the view that Rice should have been granted a new trial based on ineffective assistance of trial counsel. 261 Kan. at 609-13 (Davis, J., dissenting, joined by Allegrucci and Six, JJ-).
Rice subsequently filed a motion to correct illegal sentence, which the district court denied. In State v. Rice, 273 Kan. 870, 874, 46 P.3d 1155 (2002) (Rice II), the Kansas Supreme Court affirmed Rice’s hard-40 sentence. This appeal did not involve any claims of ineffective assistance of counsel.
On June 30, 2003, Rice filed a K.S.A. 60-1507 motion. In the motion, Rice identified new evidence of his innocence that he claimed was not available at the time of his trial. Rice also alleged ineffective assistance of trial counsel and he listed 42 reasons why Bunch’s representation at trial was constitutionally deficient. Rice’s claims of ineffective assistance of trial counsel in his K.S.A. 60-1507 motion were different from the claim litigated at the Van Cleave hearing concerning the advice not to testify at trial. The new claims of ineffective assistance of trial counsel included allegations that Bunch had never read the Kansas hard-40 sentencing statute prior to trial and that he neither offered any evidence nor made any argument to the jmy during the penalty phase of the trial. Rice also claimed that Bunch had failed to investigate a defense witness and that he failed to impeach key prosecution witnesses.
On August 9, 2004, the district court held a hearing on Rice’s K.S.A. 60-1507 motion. Regarding Rice’s claims of ineffective assistance of trial counsel, the district court determined that Rice was attempting to revisit an issue which had previously been liti gated during the Van Cleave hearing and affirmed on appeal by the Kansas Supreme Court. Accordingly, the district court dismissed all of Rice’s claims of ineffective assistance of trial counsel. At the hearing, Rice orally moved to amend his K.S.A. 60-1507 motion to include claims that his counsel was ineffective at the Van Cleave hearing and on direct appeal for failing to raise all meritorious claims of ineffective assistance of trial counsel. The district court denied Rice’s attempt to amend his K.S.A. 60-1507 motion, finding that Rice did not have a constitutional right to effective assistance of counsel at the Van Cleave hearing. The district court then heard evidence on Rice’s claim of newly discovered evidence and took the matter under advisement. In a memorandum decision filed on June 13, 2005, tire district court found that the witnesses called by Rice did not present new evidence and that their testimony was neither reliable nor persuasive. Accordingly, the district court denied Rice’s request for relief under K.S.A. 60-1507.
Rice appealed the district court’s decision denying his K.S.A. 60-1507 motion. On appeal, this court affirmed the district court’s decision as to the claim of newly discovered evidence. Rice v. State, 37 Kan. App. 2d 456, 467-68, 154 P.3d 537, rev. denied 284 Kan. 946 (2007) (Rice III). As to the ineffective assistance of trial counsel claims, this court affirmed the district court and concluded that because Rice had effected a Van Cleave remand during the direct appeal for the purpose of adjudicating the effectiveness of trial counsel, he was procedurally barred, from raising additional claims of ineffective assistance of trial counsel in his subsequent K.S.A. 60-1507 motion. 37 Kan. App. 2d at 464-65. As for the district court’s denial of Rice’s motion to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel, this court stated that ordinarily the district court has broad discretionary power to grant or deny the amendment of pleadings. However, this court determined that the district court had erroneously concluded as a matter of law that Rice’s right to counsel under the Sixth Amendment to the United States Constitution was inapplicable to the Van Cleave hearing. Accordingly, this court remanded to allow the district court to exercise its discretion to either grant or deny Rice’s motion to amend. Rice III, 37 Kan. App. 2d at 465-66.
On remand, Rice filed a written motion to amend his K.S.A. 60-1507 motion pursuant to K.S.A. 60-215(a) on October 29,2007. In the written motion to amend, Rice reiterated his oral motion to include claims that his counsel was ineffective at the Van Cleave hearing and on direct appeal for failing to raise all meritorious claims of ineffective assistance of trial counsel. The motion to amend stated that “the claims the Petitioner seeks to raise in his amended petition are essentially the exact same claims he raised in his original petition with the difference that Petitioner is alleging his appellate counsel was ineffective in failing to raise these issues at the remand hearing.” The motion to amend further stated that the evidence that would be presented in support of the amended motion would essentially be the same evidence that would have been presented in support of the original motion. Rice denied any undue delay or bad faith, arguing that he raised the issue of amending his motion to include these claims in written pleadings filed in Januaiy 2004 and orally at the evidentiary hearing in August 2004.
On November 6,2008, the district court issued an order denying Rice’s motion to amend his K.S.A. 60-1507 motion. The district court found that Rice’s motion to amend his original K.S.A. 60-1507 motion to include allegations of ineffective assistance of appellate counsel stated new claims and a new cause of action. Relying on Ludlow v. State, 37 Kan. App. 2d 676, 157 P.3d 631 (2007), the district court found that Rice was required to include all grounds for relief in his original motion and the “relation-back” doctrine found in K.S.A. 60-215(c) does not apply in K.S.A. 60-1507 proceedings. The district court also denied Rice’s motion to amend based on undue delay. Specifically, the district court found that Rice had sufficient time to amend his motion prior to August 9, 2004, but instead he waited until the day of the evidentiary hearing to attempt to amend the motion. Finally, the district court concluded that the doctrine of laches applied because 9 years had elapsed between the filing of the direct appeal and the request to amend the K.S.A. 60-1507 motion. Because the district court’s or der denying the motion to amend constituted a final order, Rice has timely filed a notice of appeal.
On appeal, Rice challenges the district court’s denial of his motion to amend his K.S.A. 60-1507 motion. Rice contends the district court erred by denying his motion to amend for three reasons: (1) The relation-back provision of K.S.A. 60-215(c) does apply in K.S.A. 60-1507 proceedings; (2) there was no undue delay in Rice’s request to amend his motion to include claims of ineffective assistance of appellate counsel; and (3) the doctrine of laches is inapplicable under the facts of this case.
An appellate court reviews the district court’s decision on a motion to amend pleadings for abuse of discretion. Clevenger v. Catholic Social Service of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, 524, 901 P.2d 529 (1995); see Rice III, 37 Kan. App. 2d at 465. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, a district court’s decision is protected if reasonable persons could differ about the propriety of the decision, as long as the discretionary decision was made within and takes into account any applicable legal standards. However, an abuse of discretion may be found if a district court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Relation-back doctrine as applied in K.S.A. 60-1507 PROCEEDINGS
Rice first challenges the district court’s legal conclusion that the relation-back doctrine found in K.S.A. 60-215(c) does not apply in K.S.A. 60-1507 proceedings. The issue is relevant here because Rice did not orally move to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel until the evidentiary hearing in August 2004. Rice had until June 30, 2004, to file any claims for relief under K.S.A. 60-1507. See K.S.A. 60-1507(f)(1); Hayes v. State, 34 Kan. App. 2d 157, 161-62, 115 P.3d 162 (2005) (1-year statute of hmitations in 60-1507[f] begins to run for preexisting claims on the date the statute became effective). Thus, the only way for Rice’s claims of ineffective assistance of appellate counsel to be viable is if the claims relate back to his original K.S.A. 60-1507 motion filed on June 30, 2003.
K.S.A. 60-215(c)(l) provides:
“Relation back of amendments. 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.”
This court interpreted the interaction between K.S.A. 60-1507 and K.S.A. 60-215(c) in Ludlow, 37 Kan. App. 2d 676. In Ludlow, the movant filed a K.S.A. 60-1507 motion on the last day possible before the motion was time barred by K.S.A. 60-1507(f)(l). In the motion, the movant raised eight allegations of ineffective assistance of trial counsel and three allegations of ineffective assistance of appellate counsel. The district court held an evidentiary hearing on the allegations, and following the conclusion of the presentation of evidence, the parties submitted briefs. In the movant’s brief, he raised nine additional claims for relief. The State objected to the new claims, arguing that they were untimely. The district court agreed, holding that the new claims were untimely and not properly before the court.
This court affirmed, finding that unlike ordinary civil petitions, a motion pursuant to K.S.A. 60-1507 and Supreme Court Rule 183 (2009 Kan. Ct. R. Annot. 251) must contain all of the grounds for relief:
“Even though K.S.A. 60-1507 motions are civil actions, as apleading, they make up a subset distinct from ordinary civil petitions. By statute and rule they must contain all perceived grounds for relief unlike the notice pleadings found in most civil petitions. Furthermore, these cases are collateral attacks upon completed criminal proceedings. That means ordinarily in these types of cases there is no pretrial discovery that creates the need to amend pleadings to include new grounds for relief as discovery often causes in other civil cases.” 37 Kan. App. 2d at 683.
This court then concluded that both K.S.A. 60-1507 and Rule 183(d) contain identical prohibitions against entertaining second or subsequent motions, thereby rendering the relation-back doc trine from K.S.A. 60-215(c) inapplicable in K.S.A. 60-1507 proceedings:
“The tandem requirements of mandatory inclusion of all alleged grounds for relief coupled with the prohibition against hearing subsequent motions, found in this rule and statute, block the filing of a successive motion. With no ability to amend or supplement a 60-1507 motion, the ‘relation-back’ doctrine found in K.S.A. 60-215(c) is inoperative here.” 37 Kan. App. 2d at 683-84.
Subsequent to Ludlow, the Kansas Supreme Court addressed the relation-back doctrine in Pabst v. State, 287 Kan. 1, 192 P.3d 630 (2008). Pabst filed a K.S.A. 60-1507 motion on October 15, 2003. In the motion, Pabst set forth various grounds for relief but he also stated that, because of the applicable statute of limitations, he had filed the motion prior to a full investigation and review. Pabst informed the court that he intended to file supplemental pleadings, with leave of the court, after an examination of the record. Nearly 2 years later, without seeking leave from the court, Pabst filed an amended pleading setting forth 16 grounds for relief, 10 of which differed from the original motion. The State contested the amended pleading, arguing that it should be dismissed because the new claims were barred by the statute of limitations. The district court found that the new claims did not relate back to the original motion and dismissed Pabst’s new claims as time-barred pursuant to K.S.A. 60-1507(f)(l).
In analyzing the amended pleadings, the Supreme Court initially stated that the terms utilized by the statutes dictate against applying K.S.A. 60-215 in the K.S.A. 60-1507 context because K.S.A. 60-215 refers to the amendment of “ ‘pleadings,’ ” while a K.S.A. 60-1507 proceeding is commenced with a “motion.” 287 Kan. at 23. The court then observed, however, that these technical distinctions were obscured by Rule 183, which states that the filing of a K.S.A. 60-1507 motion commences a new civil action in a manner similar to the filing of a civil petition. Thus, the court noted that a motion pursuant to K.S.A. 60-1507 should be treated the same as a pleading within the njeaning of K.S.A. 60-215, notwithstanding the assigned label. 287 Kan. at 23.
The court then determined that the provisions of K.S.A. 60-215(a) providing a party the right to amend a pleading once as a matter of course at any time before a responsive pleading is served does not apply to a motion for relief under K.S.A. 60-1507 because that statute does not require the State to file a responsive pleading. 287 Kan. at 24. The court did not expressly analyze whether Pabst’s amended pleading related back to his original motion under K.S.A. 60-215(c). Instead, the court cited the United States Supreme Court’s holding in Mayle v. Felix, 545 U.S. 644, 650, 162 L. Ed. 2d 582, 125 S. Ct. 2562 (2005), that an amended habeas petition does not relate back and escape the 1-year time limitation of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), when the amended petition asserts a new ground for relief supported by facts that differ in both time and iype from those set forth in the original pleading. Pabst, 287 Kan. at 25.
Accordingly, the Pabst court concluded that the district court was unquestionably correct in finding no relation back for most of Pabst’s amended claims “because they [were] based on different grounds than asserted in the original motion.” 287 Kan. at 25. The court then noted that some of Pabst’s amended claims could be “bootstrapped” into the original grounds for relief. 287 Kan. at 25-26. However, the court determined that any error by the district court in dismissing these amended claims “was ameliorated when the district court nevertheless ruled on the merits of those [original] claims.” 287 Kan. at 26.
Returning to our facts, Rice did not orally move to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel until after the statute of limitations applicable to Rice’s case had expired. Thus, the only way for Rice’s claims of ineffective assistance of appellate counsel to be viable is if the claims related back to his original K.S.A. 60-1507 motion filed on June 30, 2003. The Pabst court could have simply held that the relation-back doctrine found in K.S.A. 60-215(c) is inoperative in K.S.A. 60-1507 proceedings, as the Court of Appeals held in Ludlow. However, the Pabst court left the door open for K.S.A. 60-1507 amendments to relate back to the date of the original motion. The court held that an amendment to a motion for relief under K.S.A. 60-1507 that asserts a new ground for relief which is supported by facts that differ in both time and type from those grounds set forth, in the original motion does not relate back to the date of the original motion so as to circumvent the 1-year hmitation of K.S.A. 60-1507(f)(l). Pabst, 287 Kan. 1, Syl. ¶ 7. We must presume that the converse of this statement is also true. An amendment to a K.S.A. 60-1507 motion that asserts a new ground for relief which is supported by facts that do not differ in time and type from those grounds set forth in the original motion does relate back to the date of the original motion.
Rice’s amended claim of ineffective assistance of appellate counsel clearly asserts a new ground for relief that was not included in his original motion. The question then becomes whether this new ground for relief is “supported by facts that differ in both time and type from those grounds set forth in the original motion.” Pabst, 287 Kan. 1, Syl. ¶ 7 (relying on Mayle, 545 U.S. at 650). In Moyle, the Court clarified its holding by stating: “So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.” 545 U.S. at 664.
We find the “time-and-type” test referred to by the court in Pabst to be somewhat difficult to apply in the context of Rice’s ineffective assistance of appellate counsel claims verses his ineffective assistance of trial counsel claims. Both types of claims relate to ineffective assistance of counsel, but the timing of the errors is separated by the interval between Rice’s trial and Rice’s appeal.
The tests in determining whether trial counsel was ineffective verses whether appellate counsel was ineffective are slightly different. For ineffective assistance of trial counsel, the defendant must establish that counsel’s performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. The defendant must also establish that counsel’s deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Meanwhile, to determine ineffective assistance of appellate counsel, the defendant must show that counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness. The defendant must also establish that his or her appeal was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful. State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004).
Moreover, the law is clear that the failure of counsel to raise an issue on appeal, even if requested by the defendant, is not necessarily ineffective assistance of appellate counsel. Baker v. State, 243 Kan. 1, 9-10, 755 P.2d 493 (1988).
“In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those that could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.” 243 Kan. at 10.
These differences aside, the actual evidence required to prove a claim of ineffective assistance of appellate counsel, in most cases, is nearly the same as the evidence required to prove a claim of ineffective assistance of trial counsel. The movant must first establish that trial counsel was ineffective. The only additional evidence required to establish a claim of ineffective assistance of appellate counsel is to elicit testimony from the appellate attorney as to the thought processes that prompted the failure to raise the issue on appeal. The primary difference between the two types of claims is the remedy. If a movant prevails on a claim of ineffective assistance of trial counsel, he or she is entitled to receive a new trial. If a movant prevails on a claim of ineffective assistance of appellate counsel, he or she is entitled to receive a new appeal which, in turn, may ultimately result in a new trial.
Here, Rice’s written motion to amend filed on October 29,2007, reiterated his oral motion to include claims that his counsel was ineffective at the Van Cleave hearing and on direct appeal for failing to raise all meritorious claims of ineffective assistance of trial counsel. The motion to amend made it clear that the claims Rice intended to raise in his amended pleadings were “essentially the exact same claims he raised in his original petition.” The motion to amend further stated that the evidence that would be presented in support of the amended motion would essentially be tire same evidence that would have been presented in support of the original motion.
In Rice III, this court remanded the case to allow the district court to “exercise its discretion” to either grant or deny Rice’s request for an amendment. 37 Kan. App. 2d at 466. On remand, the district court denied the motion to amend, relying primarily on Ludlow’s holding that a K.S.A. 60-1507 movant is required to state all grounds for relief in the original motion and that the relation-back doctrine found in K.S.A. 60-215(c) does not apply in K.S.A. 60-1507 proceedings. However, as Rice has argued on appeal, if Ludlow cuts off all ability for a K.S.A. 60-1507 movant to amend his or her motion, there would have been no need for the remand in the first place. And as we have stated, the holding in Pabst allows an amendment to a K.S.A. 60-1507 motion to relate back to the original motion in some circumstances. 287 Kan. 1, Syl. ¶ 7.
K.S.A. 60-215(a) provides that leave of court to amend pleadings “shall be freely given when justice so requires.” As was the case with the district court’s original ruling, the district court’s decision on remand to deny Rice’s motion to amend appears to have been based more on an erroneous legal standard as opposed to a true exercise of the court’s discretion. Rice’s new ground for relief asserting ineffective assistance of appellate counsel was supported by facts that were not substantially different in time and type from the grounds set forth in the original motion. See Pabst, 287 Kan. 1, Syl. ¶ 7. Stated differently, Rice’s amended claims were tied to a common core of operative facts which supported the original claims in his motion. See Mayle, 545 U.S. at 664. Thus, we conclude the district court abused its discretion by determining as a matter of law that Rice’s amended claims did not relate back to the original motion.
Undue delay
The district court also denied Rice’s motion to amend based on undue delay. Specifically, the district court found that Rice had sufficient time to amend his motion prior to August 9, 2004, but instead he waited until the day of the evidentiary hearing to attempt to amend his motion.
Rice filed his original K.S.A. 60-1507 motion on June 30, 2003. The State filed a response on November 10, 2003, and asserted that Rice had waived his additional claims of ineffective assistance of trial counsel by not raising the claims at the Van Cleave hearing. See State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986). In a memorandum of law filed on January 6, 2004, Rice argued that he should be allowed to present his additional claims of ineffective assistance of trial counsel even though he had previously litigated the effectiveness of his trial counsel at the Van Cleave hearing and on direct appeal. In the concluding paragraph of the memorandum, Rice requested that the district court rule on the issue prior to the evidentiary hearing so that Rice “may have adequate time to move to amend the [60-1507 motion] in this case to allege ineffectiveness by appellate counsel” should the district court not allow him to proceed with his ineffective assistance of trial counsel claims.
The district court did not rule on the ineffective assistance of trial counsel claims until the evidentiary hearing on August 9,2004. At the hearing, the district court sustained the State’s motion to dismiss Rice’s additional claims of ineffective assistance of trial counsel, finding that the issue had already been litigated. Rice orally moved to amend his motion to allege ineffective assistance of appellate counsel, but the district court denied his motion on the ground that Rice did not have a constitutional right to effective assistance of counsel at the Van Cleave hearing. This ruling was overturned on appeal in Rice III, 37 Kan. App. 2d at 465-66.
Under the circumstances, we disagree with the district court that Rice was guilty of undue delay in attempting to amend his motion. Rice notified the district court in his memorandum of law filed on January 6, 2004, that he intended to amend his motion to include claims of ineffective assistance of appellate counsel should the district court not allow him to proceed with his ineffective assistance of trial counsel claims. Significantly, this date was prior to the expiration of the statute of limitations applicable to Rice’s K.S.A. 60- 1507 motion. In his memorandum of law, Rice specifically requested that the district court rule on the issue prior to the evidentiary hearing, but the district court failed to do so.
Granted, Rice could have filed a written motion to amend his claims prior to the evidentiary hearing on August 9, 2004, as a matter of precaution. However, it appears from the record that Rice’s oral motion to amend at the evidentiary hearing would not have delayed the proceedings. The district court did not dismiss Rice’s claims of ineffective assistance of trial counsel until the evidentiary hearing. Presumably the State appeared at the hearing prepared for Rice to present evidence on his 42 claims of ineffective assistance of trial counsel. We note with significance that both Rice and the State had listed Carl Cornwell, Rice’s appellate attorney, as a witness for the evidentiary hearing. Apparently both parties were ready to question Cornwell as to his role in representing Rice at the Van Cleave hearing and on direct appeal had the district court allowed Rice to proceed with his claims of ineffective assistance of counsel. And as we have previously discussed, Rice asserted that the evidence that would have been presented to support the amended motion was essentially the same as the evidence that would have been presented to support the original motion on the ineffective assistance of counsel claims. Thus, it appears the State would not have been prejudiced had the district court granted Rice’s oral motion to amend at the evidentiary hearing.
Furthermore, Rice had a legitimate legal basis for believing at the time that a motion to amend was unnecessary. Relying on United States v. Galloway, 56 F.3d 1239, 1241 (10th Cir. 1995), Rice believed that new claims of ineffective assistance of counsel could be raised in a collateral proceeding even though different grounds for ineffective assistance of counsel were raised in the direct criminal proceedings. Thus, Rice came to the hearing on August 9, 2004, expecting to be able to present evidence on his claims of ineffective assistance of trial counsel. It was not until Rice III was decided that any Kansas appellate court had held that a criminal defendant who obtains a Van Cleave remand during his or her direct criminal proceedings is not entitled to raise different grounds for ineffective assistance of counsel in subsequent pro ceedings under K.S.A. 60-1507. Rice III, 37 Kan. App. 2d at 463-64.
Here, Rice notified the district court as early as January 6,2004, that he intended to include claims of ineffective assistance of appellate counsel if necessary in order to obtain relief under K.S.A. 60-1507. Rice orally moved to amend his motion as soon as the district court dismissed the ineffective assistance of trial counsel claims. It appears from the record that the amendment would not have delayed the presentation of the evidence at the hearing. Under these circumstances, we conclude there was no undue delay in Rice’s request to amend his motion to include claims of ineffective assistance of appellate counsel.
Doctrine of laches
Finally, the district court denied the motion to amend based on the doctrine of laches. Specifically, the district court found that the doctrine of laches applied because 9 years had elapsed between the filing of the direct appeal and the request to amend the K.S.A. 60-1507 motion. The doctrine of laches is available as a defense in a K.S.A. 60-1507 proceeding if the delay of the movant is unreasonable, if the facts on which the issue was based had been known to the movant for many years, and if there is evidence of prejudice to the State. Woodberry v. State, 33 Kan. App. 2d 171, 175-77, 101 P.3d 727, rev. denied 278 Kan. 853 (2004).
The district court calculated that 9 years had elapsed between the filing of the Rice’s direct appeal and his request to amend his K.S.A. 60-1507 motion. However, this is not the relevant time frame applicable to the doctrine of laches. Rice could not have filed his K.S.A. 60-1507 motion while his direct appeal was pending. Rice’s direct appeal did not conclude until 1997. Granted, he waited 6 years to file his K.S.A. 60-1507 motion on June 30, 2003. The State has never claimed that Rice’s original K.S.A. 60-1507 motion was barred by the doctrine of laches. Rice orally moved to amend his motion on August 9, 2004. If the original motion was not barred by the doctrine of laches, it is difficult to perceive how Rice’s attempt to amend his motion 13 months later could be barred by this doctrine. We conclude the district court abused its discretion by relying on the doctrine of laches to deny Rice’s motion to amend.
In summary, we conclude the district court erred by finding that Rice’s amended claims of ineffective assistance of appellate counsel did not relate back to the filing of the original K.S.A. 60-1507 motion. We also conclude the district court erred by denying Rice’s amended claims based upon undue delay and the doctrine of laches. The case is remanded to district court with directions to allow Rice to amend his K.S.A. 60-1507 motion to assert claims of ineffective assistance of appellate counsel.
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Pierron, J.:
Waste Connections of Kansas, Inc. (WCK), appeals a summary judgment ruling in favor of Richie Corporation (Richie) concerning the amount of the purchase price owed when Waste Connections exercised its right of first refusal for the purchase of a waste transfer station.
As both parties requested summary judgment, the facts are for the most part established and uncontradicted. Rather, both parties interpret the facts in favor of their respective positions.
WCK is a Delaware corporation authorized to do business in Kansas. WCK is the successor in interest to BFI Waste Systems of North America, Inc. (BFI). Ritchie is a Kansas corporation based in Wichita. Ritchie is the owner of real estate in Sedgwick County that contains a landfill and also a waste transfer station. The first critical event in this case was the sale of the transfer station from Ritchie to BFI.
On December 29, 1998, Ritchie and BFI entered into a real estate contract for the sale of the 16.8 acres containing the transfer station. In conjunction with the real estate contract, the parties entered into an escrow agreement stating that BFI had the right to operate a nonhazardous solid waste transfer station for 35 years. As compensation for the sale, the escrow agreement provided that BFI would make quarterly payments to Ritchie of 35 cents per ton of nonhazardous solid waste processed at the transfer station. Additionally, Ritchie retained a reversionary interest in the transfer station by virtue of the fact that upon expiration of the escrow agreement, the escrow agent was required to record the deed back in Ritchie’s name. The critical piece of the escrow agreement is the right of first refusal given to BFI. It provides in full:
“Right of First Refusal. At all times this escrow agreement is in effect Buyer shall have a right of first refusal with respect to Seller’s interest in this escrow agreement, including without limitation Seller’s reversionary interest in the Property, however designated, to the effect that upon receipt by Seller of any offer to purchase Seller’s interest in this Agreement or the Property by a third party, Seller shall give written notice to Buyer of the fact and terms of such third party offer. Buyer shall have forty-five (45) days after its receipt of such notice to notify Seller in writing of its election to purchase such interest(s) on such financial terms (the ‘Election Term’). In the event Buyer does not notify Seller of its election to purchase such interest(s), then Seller may sell such interest(s) on such identical terms to such third party so long as such sale is consummated within ninety (90) days after such Election Term. If such sale to the third party is not consummated within such period, then the Buyer shall again have the right of first refusal to purchase such interest(s) prior to any sale to any third party. This right of first refusal shall specifically not apply to any transfer or assignment by Seller to an affiliate of Seller or to any stockholder of Seller or any of their affiliates.”
The escrow agreement also provided for the payment of attorney fees to the prevailing party in case of a dispute over the agreement.
The escrow agreement was amended in 2001 to reflect an increase in the amount of the per-tonnage quarterly payment from 35 cents to 52 cents and to also install a rate increase of 7.5% every 5 years. In consideration for the rate increase, Ritchie agreed not to file a petition for annexation or consent to annexation by the city of Wichita with respect to the landfill property contiguous, in part, to the transfer station. Ritchie also agreed to use its best efforts to maintain use of the adjacent property separating the transfer station and the landfill as “Land Devoted to Agricultural Use.”
The next critical event in this case occurred on June 22, 2007, when Ritchie entered into an asset purchase agreement with Cornejo & Sons, Inc. (Cornejo), for purchase of the landfill and also purchase of Ritchie’s rights and obligations in the transfer station as outlined in the escrow agreement. In 2007, Cornejo approached Ritchie about purchasing the landfill. However, Ritchie wanted a package deal for sale of both the transfer station and the landfill at a cost of $5.5 million ($3.5 million for the landfill and $2 million for the transfer station). Cornejo countered that it was only interested in the landfill and would pay $3.5 million for the landfill. For the package deal, Cornejo counteroffered $4.95 million.
On the one hand, Ritchie independently estimated the value of the interest in the transfer station based on a discounted cash flow analysis was $2 million. On the other hand, Cornejo estimated the value of the interest in the transfer station was $1.45 million. Tom Ritchie testified in his deposition as follows:
“Q. Your company would have been willing to accept $1.45 million for the transfer station interest and $3.5 million for the landfill as a package deal with Cornejo; isn’t that right?
“A: That is correct but what we actually agreed to is fully contained in its entirety within the asset purchase agreement.”
The parties agreed on a price for the package deal of $4.95 million. Cornejo testified that it did not care how the $4.95 million was allocated for the purchase as long as Cornejo could buy the landfill for $3.5 million. Tom Ritchie also testified that it was Ritchie’s idea to allocate $2 million of the package deal to the transfer station. Ritchie and Cornejo came to an agreement as provided in the asset purchase agreement. The critical language in the asset purchase agreement with regard to WCK’s right of first refusal in the escrow agreement was obviously the purchase price of the transfer station. Under the terms of the asset purchase agreement, the price was as follows:
“2.1 Purchase Price and Payment. The purchase price for the entirety of the Assets shall be Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000), payable in cash or certified funds at Closing, of which Two Million Dollars ($2,000,000) will be allocated to and paid to Ritchie Corporation for the purchase of its rights and the assumption of its obligations under the Escrow Agreement.
“In the event that Waste Connections of Kansas, Inc. shall, upon receipt of due and proper notice from Sellers, elect to exercise its right of first refusal under the Escrow Agreement, the parties agree that the purchase price for. the remaining Assets shall be Three Million Five Hundred Thousand Dollars ($3,500,000.00), payable in cash or certified funds at Closing.”
By letter dated June 27,2007, Ritchie notified WCK of Cornejo’s offer to purchase the transfer station interest and attached a copy of the asset purchase agreement. The letter stated:
“Ritchie Corporation has received an offer to acquire its interest in the escrow agreement for $2,000,000.00 cash as specified in the attached Asset Purchase Agreement. Waste Connections of Kansas, Inc. holds a Right of First Refusal pursuant to Section 21(m) of the Escrow Agreement, and on behalf of my client, Ritchie Corporation, this correspondence shall serve as notice of the facts and terms of the referenced third-party offer.”
On August 2, 2007, Robert Epstein, WCK’s attorney, had a phone conversation with Terry Pilgreen, Ritchie’s attorney, and advised him that WCK had a dispute over the value of the transfer station and that WCK thought the pricing on the transfer station should be $1.45 million, not $2 million. Epstein followed up his phone conversation with Pilgreen with the following letter:
“The purpose of this letter is to advise you that Waste Connections of Kansas, Inc. has elected to exercise its option to purchase Ritchie Corporation’s interest in the Wichita Transfer Station property pursuant to the provisions of the Escrow Agreement.
“Please advise your client that Waste Connections of Kansas has exercised its option to purchase. There are certain matters with respect to the contract which I believe we need to discuss in greater detail. Please contact me upon your receipt of this letter so that we may proceed to complete this purchase and sale. We would like to schedule a conference call to discuss certain matters relating to this transaction.”
Additional correspondence and communications occurred between Ritchie and WCK, including some correspondence with Cornejo, concerning the right of first refusal and the appropriate price. By letter dated September 13, 2007, WCK again informed Ritchie that it disputed the price owed under the right of first refusal and that the appropriate price was $1.45 million, not $2 million. In conjunction with the September 13 letter, WCK delivered a certified check to the escrow agent in the amount of $2 million to “acquire all of Ritchie’s interest in the escrow agreement and the assumption of Ritchie’s obligations under the escrow agreement.” The September 13 letter also stated:
‘Waste Connections’ delivery of this check is subject to its express reservation of its rights to determine the proper price payable for its exercise of the Right of First Refusal is $1,450,000.00, rather than $2,000,000.00 as claimed by Ritchie, which reservation includes all remedies that are available upon such a determination.”
On September 28,2007, the parties held a closing for the escrow agreement where Ritchie’s rights and interest in the transfer station were transferred to WCK in exchange for the payment of $2 million. Two documents were executed at the closing entitled “Right of First Refusal Exercise and Release of Escrow” and “Reservation of Rights,” both documents reserving the respective parties’ rights, and in WCK’s case, the right to seek a determination that WCK was actually required to only pay $1.45 million to exercise its right of first refusal. On December 27, 2007, Cornejo closed on its purchase of the landfill and paid Ritchie $3.5 million.
On September 13, 2007, WCK filed its petition for declaratory judgment against Ritchie seeking determination of the proper price owed under its right of first refusal and for breach of the duty of good faith and fair dealing. The parties submitted competing motions for summary judgment. The district court granted summary judgment in favor of Ritchie. The judge found as follows:
“This case, I think turns on the fact that there was a contract that would allow the plaintiff to step into the shoes of a third party purchaser to buy a piece of property that was owned by the defendant. For purposes of this, I note specifically that from the git-go the defendant was going to require Cornejo in this case to buy the landfill as a package deal and wanted to allocate 3.5 million for the landfill and 2 million for the transfer station. As I looked through the facts, I find nothing to suggest that Ritchie in any way tried to manipulate with Cornejo the price they were seeking for the transfer station, nor did they waiver in dealing with Cornejo in making a contract with Cornejo any deviation from that desire to obtain 2 million dollars for the transfer station property. I think the seller has the right to establish value for their property absent some kind of bad faith or collusion, which I find no evidence that suggests in this case that there was bad faith or collusion on the part of Ritchie in arriving at a contract, which it did in this case, which established a 2 million dollar value for the landfill. The acceptance of that offer by Cornejo established the contract and established then and triggered the right of first refusal in the escrow agreement which the plaintiff has exercised and now wishes the court in my own opinion to reform the original contract to a matter of something more acceptable to them.
“Package deals I think have to be looked at very carefully. When one - - when there’s two pieces of property and one has the right of first refusal and one does not, to protect someone like Waste Management in this case from a collusive effort or bad faith dealing on the part of one to arbitrarily or capriciously set a price too high. To extort or get from a person a value that they would not otherwise have to pay if there was a willing buyer and a willing seller. The willing seller I think has to have the right to say I’m not selling this piece of property other than for this price, and clearly the evidence establishes that that was the price that they set out and there has been no evidence that I can find that would suggest that there was bad faith or unfair dealing with the, by the parties in this case to establish that price.
“Based upon those findings and the court’s conclusions as to contract law, the parties being entitled to the benefit of their bargain, and that bargain was that in a sense there has to be a willing sale, and that is accomplished in this case through the sale to Cornejo with the landfill set at the price of 2 million. The summary judgment is proper in this case for the defendant and as to the price of the land of 2 million dollars, and the court will grant summary judgment on that basis, and I would ask the defendant to draw a journal entry with respect to that matter.”
The district court also granted attorney fees and costs to Ritchie in the amount of $108,972.15.
WCK challenges the district court’s summary judgment ruling in favor of Ritchie. WCK contends Ritchie breached the terms of the right of first refusal and that WCK is entitled to purchase the transfer station for $1.45 million.
We need not recount the standards for the district court’s consideration of a motion for summary judgment. They are well known to the parties and can be found in U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009), and Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). On appeal, we stand in the shoes of the district court and examine the parties’ summary judgment motions de novo using the same standards that apply to the district court’s consideration of such matters. See Roe v. Kansas Dept. of SRS, 278 Kan. 584, 591, 102 P.3d 396 (2004).
First, WCK argues Ritchie breached the escrow agreement by failing to communicate the fact and terms of the actual offer made by Cornejo that was acceptable to Ritchie. We disagree.
The escrow agreement states in relevant part that “upon receipt by Seller of any offer to purchase the Seller’s interest in this Agreement or the Property by a third party, Seller shall give written notice to Buyer of the fact and terms of such third party offer.” WCK bases its argument on the language “any offer” and that as soon as Ritchie and Cornejo agreed on the purchase price of $1.45 million for the transfer station, Ritchie was contractually required to present that offer to WCK under the right of first refusal. See Bergman v. Commerce Trust Co., 35 Kan. App. 2d 301, 306-08, 129 P.3d 624 (2006) (As soon as defendant received an offer from a third party that defendant was willing to accept, plaintiffs right of first refusal ripened into a present enforceable contract right to purchase based on the terms offered by the third party.).
WCK argues that because Cornejo’s actual offer was acceptable to Ritchie, WCK’s right of first refusal ripened into a right to buy the transfer station under the terms of Cornejo's actual offer for $1.45 million. WCK argues it is entitled under the escrow agreement to step into Cornejo's shoes with respect to Cornejo’s actual offer and WCK acquired the right to require Ritchie to sell both the landfill and the transfer station for no more than $4.95 million. WCK also argues that Cornejo’s actual payment to Ritchie of $3.5 million for the landfill established the price on the transfer station.
To the contrary, Ritchie argues that it never decided to accept any of Cornejo’s overtures during negotiations and instead insisted upon receiving the price of $2 million for the transfer station. Ritchie contends that regardless of any evidence that Cornejo only offered $1.45 million for the transfer station, Ritchie did not accept or form any specific intent to accept any offer to sell the transfer station for $1.45 million. Ritchie states the only offer that it accepted was $2 million as outlined in the asset purchase agreement.
When construing the right of first refusal provisions contained in an agreement, we exercise a de novo standard of review. See Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 920, 46 P.3d 1120 (2002). When construing the escrow agreement, we bear in mind the following rules:
“An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]” Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000).
WCK’s right of first refusal was not enforceable against any offering presented to Ritchie. There must be a meeting of the minds and an agreement to constitute a bona fide offer. In reading the escrow agreement, we acknowledge the language “any offer” is utilized. However, this language must be read in context with the veiy next sentence that WCK had 45 days “to notify Seller in writing of its election to purchase such interest(s) on such financial terms (the ‘Election Term’).” As was the case in Bergman, 35 Kan. App. 2d at 307, the third-party offer is one that the seller is willing to accept. It is unrealistic that WCK could step in at any outrageous offer and require Ritchie to sell at that amount. Therein lies the difference between an option and a right of first refusal.
A right of first refusal creates an enforceable right to purchase when an owner decides to sell. Compare Weintz v. Bumgarner, 150 Mont. 306, Syl. ¶¶ 2-3, 434 P.2d 712 (1967) (an option empowers the possessor of the right to compel an unwilling owner to sell). A right of first refusal requires the owner, when and if the owner decides to sell, to offer the property first to the person en-tided to the preemptive right at the stipulated price. Bergman, 35 Kan. App. 2d at 306. The court in Anderson v. Armour & Company, 205 Kan. 801, 805, 473 P.2d 84 (1970), stated: “ ‘Under a lease giving tenant a pre-emptive right of purchase, at such time as the owner forms a specific intention to sell such right ripens into a present enforceable contract right of the tenant to purchase.’ ”
Kansas law requires the combination of two events for the right of first refusal to ripen into an enforceable contract right: (1) the receipt by the seller of a bona fide offer and (2) the decision by the seller to accept that specific offer on its terms. Bergman, 35 Kan. App. 2d at 307-08. The triggering event in this case was the creation of the asset purchase agreement between Ritchie and Cornejo of the package deal of the transfer station and the landfill. There is no evidence or suggestion that Ritchie did not give proper notice of the offer in the asset purchase agreement.
Ritchie also argues WCK’s acceptance and execution of the right of first refusal by paying Ritchie $2 million negated the opportunity to challenge the purchase price and, in effect, to alter the asset purchase agreement. We disagree based on documents executed by Ritchie in conjunction with WCK’s execution of the right of first refusal.
Ritchie contends WCK had the option to either accept the purchase price or reject the offer and that when WCK accepted and exercised the right of first refusal a binding contract formed to sell tire transfer station for $2 million. Ritchie argues that acceptance may only be made upon the specific terms of the seller, and contract law knows of no concept as a “conditional acceptance,” citing Nungesser v. Bryant, 283 Kan. 550, 565-66, 153 P.3d 1277 (2007). However, as cited in Nungesser, 283 Kan. at 566, the court in Seymour v. Armstrong, 62 Kan. 720, Syl. ¶ 2, 64 P. 612 (1901), stated: “If the acceptor affixes conditions to his acceptance not comprehended in the proposal, there can be no agreement without the assent of the proposer to such conditions.”
Ritchie argues that WCK’s notion that it had the option to accept the offer but then force terms other than those it explicitly accepted is a legal falsehood and is not recognized under contract law. Ritchie contends that it was incumbent upon WCK to negotiate a different price or take necessary legal measures, such as injunctive relief, prior to accepting Ritchie’s offer if it believed it was entitled to a different price. Ritchie also contends that because WCK executed the right of first refusal, WCK should be precluded or es-topped from pursuing a breach of contract remedy.
WCK responds that its conditional execution of the right of first refusal is not a reformation of the asset purchase agreement. Rather, WCK asks the court to interpret the asset purchase agreement to give effect to WCK’s right of first refusal in the escrow agreement. WCK argues its position gives effect to, and is consistent with, both the terms of the escrow agreement and the asset purchase agreement since WCK would receive the value a third party was willing to pay and Ritchie was willing to accept for the transfer station.
WCK argues it has long been the law in Kansas that payment of a disputed amount, pursuant to a contract that provides that a party may obtain a refund if a court determines the proper price was lower, fully preserves that party’s right to obtain a refund by having a court determine the proper price. WCK cites Waechter v. Amoco Production Co., 217 Kan. 489, 515-16, 537 P.2d 228 (1975), where the court stated, in the context of oil and gas royalty payments, that where excess payments have been made in good faith, the payor may recover the payments to which the payee was not entitled. In Juneau v. Stunkle, 40 Kan. 756, Syl. ¶ 2, 20 P. 473 (1889), the court held that where a payment on a bill for lumber was made with the understanding that if an overpayment was found at the final settlement, the excess would be repaid.
It is undisputed that WCK executed its right of first refusal for $2 million dollars. It is also undisputed that for its first notice, WCK challenged the value placed on the right of first refusal under the asset purchase agreement executed by Ritchie and Cornejo. In acceptance of WCK’s payment on the right of first refusal, Ritchie executed several documents reserving a determination of the appropriate price. By signing the Right of First Refusal Exercise and Release of Escrow, Ritchie agreed:
“On September 13, 2007 Waste [Connections] delivered a certified check to the Escrow Agent in the amount of $2,000,000.00, payable to Ritchie, with a reservation of Waste [Connections’] right to seek a determination that Waste [Connections] is actually required to pay only $1,450,000.00 under Paragraph 21(m) of the Escrow Agreement when applied to the Purchase Agreement to exercise its Right of First Refusal, which reservation includes all remedies available in the event such a determination is made.”
The reservation of rights document, also signed by Ritchie, provided that WCK’s rights to challenge the appropriate price for the right of first refusal survived the closing of the escrow agreement.
Here, WCK essentially executed the right of first refusal in protest. WCK executed the right in order to protect its ability to purchase the property. WCK’s position from the very start has been that the appropriate offer under the asset purchase agreement was $1.45 million. Ritchie recognized WCK’s challenge to the purchase price and executed documents at closing recognizing WCK’s challenge, as was appropriate.
Next, WCK argues the asset purchase agreement shows that $1.45 million was the price that Cornejo was willing to pay for the transfer station because Cornejo offered to pay $4.95 million for both properties and $3.5 million for the landfill as a stand-alone purchase.
Several legal maxims of contract interpretation are relevant for our discussion. An inteipretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers. See City of Arkansas City v. Bruton, 284 Kan. 815, 832-33, 166 P.3d 992 (2007). The law favors reasonable interpretations and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. See Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 853, 185 P.3d 946, rev. denied 287 Kan. 769 (2008).
WCK argues interpreting the asset purchase agreement to require a $2 million dollar price tag for the transfer station is inconsistent with the entirety of the purchase if the stand alone purchase of the landfill is $3.5 million. On the other hand, Ritchie argues the asset purchase agreement is crystal clear that the price of the transfer station is $2 million. Ritchie also argues it should be able to “maximize the amount it will receive in payment for its property and should not be prohibited from receiving more in separate sales than it would under a package deal.”
Ritchie argues it is not required to forego its business judgment and give priority to another party’s interests as a result of the duty of good faith and fair dealing, but only not to intentionally injure, impair, or impede the contractual rights of the other party. Otherwise, Ritchie claims such a rule would open up the independent judgment and prudent decisions of businesses in this state to unwarranted second guessing by courts under the auspices of bad faith and unfair dealing claims.
Over the years, certain basic concepts of law have become firmly established when a contract is alleged to be ambiguous. Parties to a contract should be bound by the strict terminology of that contract unless such terminology is ambiguous or unless there was a mistake involved. Schlatter v. Ibarra, 218 Kan. 67, 74-75, 542 P.2d 710 (1975). Determining whether a written contract is free from ambiguity is a judicial function. Hird v. Williams, 224 Kan. 14, 16, 577 P.2d 1173 (1978). The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in the sense that the contract may be understood to reach two or more possible meanings. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 4, 512 P.2d 442 (1973). Once the court decides this question of law and determines the contract to be unambiguous, the intention of the parties and the meaning of such a contract are to be deduced from the plain, general, and common meaning of those terms. Duffin, 212 Kan. at 778.
Although on the surface the asset purchase agreement is seemingly clear on the purchase price of the transfer station, the price fluctuates based on whether WCK executes the right of first refusal. Consequently, the price is ambiguous.
“2.1 Purchase Price and Payment. The purchase price for the entirety of the Assets shall be Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000), payable in cash or certified funds at Closing, of which Two Million Dollars ($2,000,000) will be allocated to and paid to Ritchie Corporation for the purchase of its rights and the assumption of its obligations under the Escrow Agreement.
“In the event that Waste Connections of Kansas, Inc. shall, upon receipt of due and proper notice from Sellers, elect to exercise its right of first refusal under the Escrow Agreement, the parties agree that the purchase price for the remaining Assets shall be Three Million Five Hundred Thousand Dollars ($3,500,000.00), payable in cash or certified funds at Closing.”
Ritchie states that it has the evidence to support that the transfer station was worth $2 million based on an independent evaluation of the value of interest over time based on a discounted cash flow analysis. Cornejo’s valuation of the transfer station was $1.45 million.
The package deal is a risky situation in the terms of the right of first refusal. There is “a risk in package deals that the purchase price may be unfairly allocated or padded to defeat the rights of first refusal.” In re Adelphia Communications Corp., 368 B.R. 348, 353 (Bankr. S.D.N.Y. 2007). In a package deal situation, more protection needs to be given to the right of first refusal to prevent collusion or bad faith. In a package deal, the purchase price should come under greater scrutiny and any doubt in the amount should be resolved to protect the right of first refusal.
In the context of a package deal, we do not agree with Ritchie’s “maximized profits” argument. Ritchie cannot maximize its profits solely at the expense of WCK and the right of first refusal. WCK argues this would evade the “spirit of the bargain” in the escrow agreement. We agree. Ritchie acted in bad faith by attempting to maximize its profits to “recapture opportunities foregone” through granting of the right of first refusal. See Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369, 372 (1980). The duty of good faith and fair dealing applies to Ritchie’s acts that impacted the escrow agreement. Ritchie cannot maximize its profits at the expense of WCK’s right of first refusal where WCK was not even at the bargaining table for the asset purchase agreement.
The district court concentrated on Ritchie’s ability to sell the property for what Ritchie thinks it is worth. Ritchie, of course, has a right to establish a price its property. However, there is no guarantee a willing buyer will offer to buy the property at Ritchie’s price. What a person thinks his or her property is worth is not the market value of the property. What a buyer is willing to pay for the property is the market value of the property. Just because Ritchie wants to get $2 million for the transfer station does not mean that Ritchie will be able to sell the transfer station for $2 million. Just as Ritchie has its opinion, we find that Cornejo had the opinion that the value of the transfer station was $1.45 million.
We believe Ritchie mischaracterizes Cornejo’s decision to enter the contract. The only thing Cornejo agreed to was a package purchase price of $4.95 million. The evidence states that Cornejo did not care how Ritchie proportioned out the total purchase price as long as it did not pay more than $3.5 for the landfill. C.D. Royce, the chief financial officer from Cornejo, testified in his deposition, ‘What we said is we want - - if we’re going to buy them both, we’ll buy them both for $4,950,000 is the number I remember. If we’re only going to buy one, we want the landfill. We’ll pay 3.5 million.” Royce was asked the following question, “Did it make any difference how that price was allocated from the 4.95 million total to Cornejo as how much would be landfill, how much would be transfer station?” Royce answered, “No. The allocation, no. We didn’t care.” In his deposition, Tom Ritchie was questioned, “Your company would have been willing to accept 1.45 million for the transfer station interest and 3.5 million for the landfill in a package deal with Cornejo; isn’t that right?” Ritchie answered, “That is correct.”
The district court stated that protection is necessary in a package deal situation to prevent a seller from “extort[ing] or get from a person a value that they would not otherwise have to pay if there was a willing buyer and a willing seller.” On the other hand, the court had no problem with a package deal that was more lucrative to the seller if the right of first refusal was executed.
In the context of a package deal involving a right of first refusal, the price for the total package generally should not fluctuate based upon whether the right of first refusal is executed. Ritchie should not be able to receive more money after exercise of the right of first refusal. For the right of first refusal to be given its lawful effect, Ritchie should be in the same financial position regardless of whether WCK exercises the first refusal. That is not the case here. WCK cites Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 228 (7th Cir. 1996), where the court discussed that sellers are financially indifferent to the exercise of the right of first refusal because of the requirement of identical price, but they may have preferences driven by other interests.
In Pantry Pride Enterprises v. Stop and Shop Companies, 806 F.2d 1227 (4th Cir. 1986), the court considered an offer by a third party for a package deal and the right of first refusal for a leasehold interest and equipment located on the property that was not subject to the right. The Fourth Circuit Court of Appeals held that where a sum was a mere tax allocation, allowing the plaintiffs to exercise the right of first refusal at that price would give them a windfall because the tax allocation may bear no relation to the property’s worth. The Fourth Circuit reasoned that allowing the purchase at the tax allocation price would be to create a value for the product over and above the bargain struck by the parties. 806 F.2d at 1231. “Put another way, [defendant] will have acquired a supermarket at an absurdly low price and on terms never really agreed to between [the seller and buyer].” 806 F.2d at 1231. To resolve the damages issue, the Fourth Circuit ordered the parties to submit to the district court, on remand, evidence of the value of the property at the time of the offer. 806 F.2d at 1232.
Kansas courts imply a duty of good faith and fair dealing in every contract. Parties shall not intentionally and purposely do anything to prevent the other party from carrying out his or her part of the agreement or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Daniels v. Army National Bank, 249 Kan. 654, 658, 822 P.2d 39 (1991) (quoting Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 [1987]) (both quoted with approval in Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 725, 864 P.2d 204 [1993]); see 17A Am. Jur. 2d, Contracts § 370. Because there are a multitude of ways that a sale can circumvent a grantee’s right of first refusal in a package deal, the duty of good faith and fair dealing should be applied prominently in cases like the one before us.
The bottom line is that Ritchie chose a package deal to sell its interest in the transfer station. Ritchie did not act in good faith in setting the total price of the package deal at $4.95 million and allocating $2 million to the transfer station but including a provision that Cornejo could purchase the landfill as a stand-alone purchase for $3.5 million. If the total package deal is worth $4.95 million and the transfer station is allocated $2 million, then the allocated value of the landfill in this scenario is $2.95 million. The value $2.95 million is directly contrary to the $3.5 million for the landfill set forth in the asset purchase agreement if WCK exercised the right of first refusal.
It is clear that Cornejo wanted to purchase the landfill for $3.5 million. It is also very clear that Ritchie wanted to sell its rights to the transfer station for $2 million. In the package deal, Cornejo was unwilling to purchase both the transfer station and the landfill for $5.5 million. Through negotiations, the parties agreed on a purchase price of $4.95 million for the package deal. Ritchie would argue that Cornejo accepted a $550,000 lower price for the landfill. In the context of a package deal, we find that WCK, as possessor of the right of first refusal, is denied the benefit of the deal if it is not entitled to the reduced price for the transfer station.
We, therefore, reverse and grant judgment to WCK in the amount of $550,000 on the issue of the actual sale price. We also remand to the district court for a reconsideration of the attorney fees issue.
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Greene, J.:
ExxonMobil Oil Corporation, formally Mobil Oil Corporation (Mobil), appeals the district court’s certification of a class action against it by Mobil’s oil and gas lessors of Kansas minerals within the Hugoton Field, or by the successors in interest to such lessors, alleging breach of express and implied covenants by Mobil in the purported improper deduction of expenses from the payment of royalties to lessors. Mobil contends the district court abused its discretion in certifying a class because it failed to rigorously analyze the requirements of K.S.A. 60-223, that choice-of-law issues and variations in the circumstances surrounding execution of individual leases defeat the predominance of any common issues of law or fact, and that these individual issues would make management of a class action difficult if not impossible. Concluding there was no abuse of discretion by the district court, we affirm the class certification and remand for further proceedings.
Factual and Procedural Background
Plaintiffs initially sought to certify a class action on behalf of interest owners of minerals burdened by 1,200 leases on acreage within the areal extent of the Kansas Hugoton Field, whose gas flowed through the Bushton gathering system owned by ONEOK. The action alleged that Mobil had breached express and implied contractual obligations by deducting from royalty payments a prorata portion of the amount paid by Mobil to ONEOK for services necessary to gather the gas and transport it to the processing plant. These claims were expanded 3 years later to include claims of the additional mineral interest owners whose gas flowed through the Jayhawk Plant on the Hickok gathering system owned by Mobil. Counsel indicated at oral argument that the scope of the litigation now involves approximately 2,000 leases and more than 5,000 potential class members.
After Mobil’s attempts to remove the action to federal court failed, discovery was conducted, the certification issue was joined, and the district court conducted an evidentiary hearing. Following posttrial submissions from the parties, the court entered its 21-page journal entry certifying a class action under K.S.A. 60-223(b)(3) and defining the class as:
“ ‘All persons or concerns owning mineral interests in lands located in the areal confines of the Kansas Hugoton Gas Field, burdened by oil and gas leases owned in whole or in part by defendant insofar as such leases are productive of gas from above the base of the Panoma Council Grove Field, the gas from which has been subject to the Gathering Agreement, including the instrumentalities of the United States of America and federally chartered corporations, such as, but not limited to, the Farm Credit Bank of Wichita and the Federal Land Bank, but excluding the United States of America insofar as its mineral interests are managed by the Mineral Management Service.’ ”
On September 1,2009, Mobil filed its application with this court to take an interlocutory appeal pursuant to K.S.A. 60-223(f). This court granted the application and stayed the district court pro ceedings pending resolution of this interlocutory appeal. Mobil then timely filed its notice of appeal.
Standards for Class Certification and Appellate Review Thereof
There are four statutory threshold prerequisites to bringing a class action in Kansas. A class action is only proper if (1) the number of class members is so large that joinder of all members is impracticable; (2) the class claims present common questions of fact or law; (3) the named parties’ claims and defenses are representative of the claims and defenses of the other class members; and (4) the class representatives will fairly and adequately protect the interests of the class as a whole. K.S.A. 60-223(a). In shorthand, the threshold elements are identified as “(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.” Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 778, 89 P.3d 908 (2004) (Dragon I).
In addition to meeting all the threshold elements, a putative class plaintiff must establish that a class action is maintainable under one of the three provisions of K.S.A. 60-223(b). Here, plaintiffs rely on the criteria of K.S.A. 60-223(b)(3), which state:
“[T]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) The interest of the members of the class in individually controlling the prosecution of defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.” (Emphasis added.)
Mobil’s primary contentions focus on whether the common issues predominate over the individual issues framed by variations in applicable state law and by the individualized examination of lease formation. The predominance inquiry of Rule 23(b)(3) of the Federal Rules of Civil Procedure, which parallels K.S.A. 60-223(b)(3), tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, a standard “far more demanding” than the commonality requirement of Fed R. Civ. Proc. 23(a). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997). Thus, predominance “require[s] more than a common claim.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 187 (3d Cir. 2001).
Mobil also challenges the manageability of the action as a class action. The other prong under subsection (b)(3), “[c]ommonly referred to as 'manageability,’ . . . encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974). The superiority requirement insures that no other available method of handling the claims has greater practical advantages. See In re Univ. Serv. Fund Tel. Billing Practices Lit., 219 F.R.D. 661, 679 (D. Kan. 2004) (obvious alternative of individual suits by each plaintiff would be grossly inefficient, costly, and time consuming because the parties, witnesses, and courts would be forced to endure unnecessarily duplicative litigation).
District courts have substantial discretion in deciding whether to certify a case as a class action. Dragon I, 277 Kan. at 779. Both state and federal class action rules require that a class should be certified only “ 'after a rigorous analysis, that the prerequisites of [the statute] have been satisfied.’ ” Dragon I, 277 Kan. at 780 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 72 L. Ed. 2d 740, 102 S. Ct. 2364 [1982]). In conducting this “rigorous analysis,” the district court may be required to look behind the plaintiffs’ pleadings before resolving the certification question. The factual inquiry, however, does not require an actual determination of the merits of the plaintiffs’ claims. Dragon I, 277 Kan. at 781; see In re Univ. Serv., 219 F.R.D. at 679.
We review the certification of a class action for an abuse of the discretion as outlined above. A trial court abuses its discretion if it fails either to evaluate carefully the legitimacy of the plaintiffs’ allegations and evidence supporting class treatment or to conduct a rigorous analysis to determine whether the statutory prerequisites have been satisfied. See Dragon I, 277 Kan. at 779-81. An abuse of discretion occurs when the trial court goes outside the framework of legal standards or statutory hmitations or fails to properly consider the factors given by the higher courts to guide the discretionary determination. Dragon v. Vanguard Industries, 282 Kan. 349, 354, 144 P.3d 1279 (2006) (Dragon II).
Summary of Challenges to the District Court’s Class Certification
Mobil’s challenge to the district court’s class certification order is multifaceted. Mobil initially argues the district court “ignores the Kansas Supreme Court’s directives in Dragon I and Dragon II by failing to hold Plaintiffs to their burden,” by shifting that burden to Mobil and by failing to perform a rigorous analysis of the predominance and manageability elements.
More specifically, Mobil claims that the district court’s apparent application of lex fori — the law of the forum — as the choice of law is contrary to Kansas caselaw because the subject royalty interests are governed by leases executed in many states, and the application of the law of the forum is unconstitutional as “to a nationwide class’s claims.” Moreover, Mobil argues that when the proper choice-of-law doctrine of lex loci contractus is considered, a host of legal questions framed by the action will be subject to various state laws, thus demonstrating that common questions of law do not predominate.
Additionally, Mobil claims that a proper reading of Smith v. Amoco Production Company, 272 Kan. 58, 75-76, 31 P.3d 255 (2001), means that implied covenants in oil and gas leases are implied in fact and not in law, thus requiring “an examination of the lease and its amending documents and the facts and circumstances surrounding these documents’ execution” in order to determine whether the parties reached “the unspoken agreement specifically alleged.” Thus, Mobil suggests that its duty to each purported class member is dependent upon an individualized factual inquiry “governed by thousands of leases and amending documents with materially different royalty clauses that were executed at various times under varying circumstances.”
In summary and for purposes of our analysis, we address two major concerns in this appeal: (1) Did the district court abuse its discretion in failing to consider the proper choice-of-law doctrine and would application of the proper doctrine create such diversify of legal issues that statutory prerequisites for a class action would be defeated? and (2) Did the district court abuse its discretion in misconstruing controlling caselaw governing implied covenants of the oil and gas leases and would a proper construction and application of such caselaw result in a myriad of individualized factual inquiries that would inevitably defeat the statutory prerequisites for a class action?
Did the District Court Aruse its Discretion in Failing to Consider the Proper Choice-of-Law Doctrine for this Litigation?
Mobil contends the district court erred in addressing the choice-of-law issues raised in this case. Mobil argues that tire district court improperly applied a lex fori approach to resolving the conflicts issue, which it claims is inconsistent with Kansas law. Further, Mobil contends such an application of lex fori to every class member’s claim would be unconstitutional and that Kansas law requires the application of the lex loci contractus principle adopted by Kansas in some class actions framing contract disputes, requiring the application of the law where each lease was finalized. In a conflict-of-law situation, the determination of which state’s law applies is a question of law over which this court has unlimited review. Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, 894, 159 P.3d 1042 (2007), aff'd 286 Kan. 597, 186 P.3d 766 (2008).
The district court’s findings and conclusions as to the proper choice of law included the following:
“The Kansas Supreme Court has applied Kansas Law to oil and gas leases located in Kansas, regardless of where they were executed. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815, 105 S.Ct. 2965, 2976, 86 L.Ed.2d 628 (1985) (‘Shutts II'); Shutts v. Phillips Petroleum, Co., 240 Kan. 764, Syl. ¶ 4, 732 P.2d 1286 (1987) (‘Shutts III'); Sternberger v. Marathon Oil Co., 257 Kan. 315, 322, 894 P.2d 788 (1995). This practice is consistent with established law.
“3. Mobil and its royalty owners under Kansas leases have previously applied Kansas Law when resolving royalty payment disputes between them. Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1 (1977); Matzen v. Cities Service Oil Co., 233 Kan. 846.
“5. Mobil does not claim to have applied the law of any state other than Kansas when deciding how to pay its royalty owners for gas produced in Kansas.
“6. Mobil has admitted that Kansas law applies to this case.
“7. Mobil’s expert who conducted a random review of Mobil’s lease files saw no evidence among Mobil’s documents to indicate that it applied non-Kansas law to the administration of its leases.
“The Court has carefully considered Mobil’s position regarding choice of law, and finds that allowing this case to proceed as a class action will not result in the predominance of individual issues, nor render the case unmanageable.”
The District Court’s Choice-of-Law Selection
Mobil’s argument here borders on disingenuous. Although Mobil has characterized the district court’s choice of law as lex fon, it is clear to this court that the choice-of-law doctrine selected and applied by the district court was lex rei sitae — the law of the place where the property is situated. Our Supreme Court has consistently applied the law of Kansas to disputes requiring the construction and enforcement of oil and gas leases covering Kansas real estate. In Smith, 272 Kan. 58; Sternberger v. Marathon Oil Co., 257 Kan. 315, 894 P.2d 788 (1995); Shutts, v. Phillips Petroleum Co., 240 Kan. 764, Syl. ¶ 4, 732 P.2d 1286 (1987) (Shutts III); Matzen v. Cities Service Oil Co., 233 Kan. 846, 667 P.2d 337 (1983); and Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1 (1977), there were not any serious contentions made that any other state’s law rather than Kansas law should govern the resolution of disputes involving oil and gas leases covering Kansas properties, and our Supreme Court either impliedly or expressly held that the law of the situs of the lease properties (lex rei sitae) should be applied in such cases. See also Wortman v. Sun Oil Co., 241 Kan. 226, 232, 755 P.2d 488 (1987), aff'd, 486 U.S. 717, 100 L. Ed. 2d 743, 108 S. Ct. 256 (1988) (regarding statute of limitations application). In fact, the only occasion where our Supreme Court seems to have applied lex fori to a dispute such as this, Shutts v. Phillips Petroleum Co., 235 Kan. 195, 221-22, 679 P.2d 1159 (1984), the United States Supreme Court reversed the court on its choice-of-law doctrine in favor of the determination that the “laws of the States where the leases were located” should be applied. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815-23, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985).
Application of the lex rei sitae choice of law to resolve disputes in the construction and enforcement of oil and gas leasehold interests is not unique to Kansas. Courts in other oil and gas producing states apply lex rei sitae to disputes regarding the payment of royalties on oil and gas produced from leases covering acreage located within their boundaries. See, e.g., Exxon Mobil v. Ala. Dept. of Conservation, 986 So. 2d 1093 (Ala. 2007); SEECO, Inc. v. Hales, 22 S.W.3d 157 (Ark. 2000); Atlantic Richfield Co. v. State, 214 Cal. App. 3d 533, 262 Cal. Rptr. 683 (1989), rev. denied December 14, 1989; Garman v. Conoco, Inc., 886 P.2d 652 (Colo. 1994); Duhe v. Texaco, Inc., 779 So. 2d 1070 (La. App.), writ denied 791 So. 2d 637 (La. 2001); Schroeder v. Terra Energy, 223 Mich. App. 176, 566 N.W.2d 887 (1997), appeal denied 458 Mich. 863 (1998); Darrv. Eldridge, 66 N.M. 260, 346 P.2d 1041 (1959); West v. Alpar Resources, Inc., 298 N.W.2d 484 (N.D. 1980); Mittelstaedt v. Santa Fe Minerals, Inc., 954 P.2d 1203 (Okla. 1998); Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996); Flying Diamond Oil v. Newton Sheep Co., 776 P.2d 618 (Utah 1989); Wellman v. Energy Resources, Inc., 557 S.E.2d 254 (W. Va. 2001); Cabot Oil & Gas Corp. v. Followill, 93 P.3d 238 (Wyo. 2004).
Mobil argues that in contract cases Kansas courts have generally applied the rule of lex loci contractus — the law of the place where the contract was made controls. See Dragon I, 277 Kan. at 784; Novak v. Mutual of Omaha Ins. Co., 29 Kan. App. 2d 526, 534-35, 28 P.3d 1033, rev. denied 272 Kan. 1419 (2001); see also Wilkinson v. Shoney's, Inc., 269 Kan. 194, 209-13, 4 P.3d 1149 (2000) (determining where contract was made); Restatement (First) of Conflicts of Law § 332 (1934). The Kansas courts, on a few occasions, also have applied the law of the place of contract performance in determining issues related to performance of the contract. See Sykes v. Bank, 78 Kan. 688, 689-90, 98 P. 206 (1908) (in determining whether promissory note was negotiable, law of place of performance governs); Aselco Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, Syl. ¶ 7, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001) (applying law of place of performance to decide whether insurer had a duty to defend).
In support of its contention that lex loci contractus is . the proper choice-of-law principle to apply in a case requiring the construction and enforcement of oil and gas leases, Mobil cites Roberts v. Chesapeake Operating, Inc., 426 F. Supp. 2d 1203 (D. Kan. 2006), and a line of other cases including Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 630 P.2d 1107 (1981). Mobil also cites Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d 357 (2007), a Nebraska oil and gas case applying lex loci contractus.
Mobil’s reliance on these cases is not persuasive. First, while Roberts cited the lex loci contractus rule in a case where mineral estate owners sued for additional royalties on Kansas leaseholds, that language is mere dicta. After citing the leic loci contractus rule, the federal district court in Roberts noted that the parties failed to provide any facts as to where the contract was formed and both parties agreed in the pretrial order that Kansas contract law should govern; accordingly, the court did not determine where the contract was formed and simply applied Kansas law by default. 426 F. Supp. 2d at 1206-07.
Mobil’s reference to Sidwell also is unhelpful. Sidwell and the other cases cited by Mobil merely applied general contract principles to oil and gas leases, but none of these cases involved choice-of-law issues. Thus, they do not undermine Shutts III or Stemberger as to which choice-of-law principles apply when litigation frames issues surrounding construction and performance of oil and gas leases covering Kansas acreage.
Mobil’s citation to Coral Production, 273 Neb. 379, also provides little assistance to Mobil’s arguments. Coral Production involved a dispute between various oil companies that were fractional interest owners of oil and gas interests and focused on the parties’ rights to purchase assets of the lease operator. One party argued Nebraska law should apply because the case involved eventual ownership in real estate in Nebraska. The court held the dispute in volved the meaning and construction of an operating agreement which “ ‘ “normally is not intended to affect the ownership of the minerals or the rights to produce.” ’ [Citation omitted.]” 273 Neb. at 389-90. In the same opinion, however, the court recognized under its own precedent that oil and gas leases have many of the same components as real estate interests and that an interest in an oil and gas lease is an interest in real property to the extent that it grants the lessee the right to remove minerals from the land. 273 Neb. at 389. Thus, Coral Production does not support Mobil’s arguments.
Indeed, Mobil admitted in answers to interrogatories that Kansas law was a driving factor in determining how it should deduct expenses in calculating royally payments — the essence of this dispute. Mobil was asked for each reason why it contended “it is entitled to take each such royalty deduction,” and it responded in part:
“Under these [different] leases and Kansas law, if the gas is not sold at the wellhead, the market value of gas at the well may be determined by deducting from the amount for which gas is sold off the leased premises the reasonable cost of getting the gas from the well to the point of sale.” (Emphasis added.)
For all these reasons, the district court did not err in holding that the doctrine of lex rei sitae governs the claims of the plaintiffs’ class and in rejecting Mobil’s contention that a proper application of lex loci contractus would defeat the prerequisites for maintenance of a class action because of the need to apply varying and disparate laws of numerous states where the instruments were executed.
Mobil’s Constitutional Challenge
Mobil’s challenge to the constitutionality of applying Kansas law here is also rather disingenuous. For a state’s substantive law to be selected in a constitutionally permissible manner, that state must have a significant contact or significant aggregation of contacts, creating state interests, such that the choice of its law is neither arbitraiy nor fundamentally unfair. Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981). There is simply no question that Kansas has such significant contacts in applying its law to the enforcement of oil and gas leases on properties within its own boundaries.
Mobil’s constitutional argument is fundamentally premised on the suggestion that the district court applied a lex fori approach to •a nationwide class action. The premise is false in two regards. As already discussed, we do not believe the court applied the lex fori doctrine. Moreover, this action is not a typical nationwide class action; instead, it involves only the enforcement of provisions in oil and gas leases covering Kansas realty. Application of Kansas law to such an action cannot be said to be unconstitutional.
First, we are aware of no authority holding that it is unconstitutional to apply the law where real property is located to disputes surrounding enforcement of lease obligations. See 16 Am Jur. 2d, Conflict of Laws § 24. Although an oil and gas lease is generally classified as personalty in Kansas, see, e.g., 1 Pierce, Kansas Oil and Gas Handbook § 4.11, p. 4-15 (1991), Kansas has recognized that the rights to future royalty payments pursuant to such leases are essentially part of the lessor’s realty interests:
“The lessor’s rights to royalty do not originate with the lease. The lessor reserves his rights to royalty out of the grant. His rights arise from his ownership of the real estate rather than the lease and are therefore interests in real estate until the oil and gas are captured. It follows then that future royalty (unaccrued royalty) is a part of the real estate of the lessor; it is uncaptured and of an undetermined amount or location.” In re Estate of Sellens, 7 Kan. App. 2d 48, 51, 637 P.2d 483 (1981), rev. denied 230 Kan. 818 (1982).
Indeed, oil and gas leasehold interests are to be treated as real property under the statutes pertaining to recordation of instruments conveying real estate. See K.S.A. 58-2221(b); Ingram v. Ingram, 214 Kan. 415, 420-21, 521 P.2d 254 (1974). In any event, an oil and gas lease conveys a license to explore, or a “ profit á prendre.’ ” State, ex rel., v. Board of Regents, 176 Kan. 179, 190, 269 P.2d 425 (1954). Whether the lessor’s rights to royalty are technically classified as personalty or realty, it is difficult to imagine a more intimate contact with Kansas than the construction and' enforcement of instruments that license the exploration for Kansas minerals.
We conclude that the allegations of the plaintiffs’ class implicate significant contacts with Kansas and there is no arbitrariness or unfairness in the application of Kansas law in determining how the subject oil and gas leases should be construed and enforced. Mobil’s constitutional challenge to the district court’s choice of law is rejected.
Did the District Court Abuse its Discretion in Misconstruing Controlling Caselaw Governing Implied Covenants of the Oil and Gas Leases?
Mobil also argues class action certification was improper because individual issues would predominate over the common questions of law or fact. Mobil argues that to determine whether there was a breach of an implied covenant within the leases would require evaluating each of the individual leases and their various amendments, together with an individualized examination of the factual circumstances and intent of the parties at the time each of the lease instruments were executed. As argued by Mobil, the controlling caselaw means “the facts and circumstances surrounding each particular lease must be analyzed to determine if the alleged implied obligation may be inferred” and this includes the express language of the lease, other relevant writings, and “all the circumstances and conditions which confronted the parties when the contract was formed.”
The district court rejected Mobil’s contention, essentially finding that individualized examination of lease variations and circumstances surrounding lease formation was unnecessary:
“This Court does not agree with Mobil’s contention that the Plaintiffs must present evidence that the lessee and the lessor intended to require the lessee to fulfill the implied covenant to market minerals produced.
“Most of die leases in the Hugoton Gas Field were signed in the 1930’s and 1940’s. Those who executed those leases, either as a lessee or a lessor, are long dead.
“There is an implied covenant to market minerals produced under all oil and gas leases in Kansas.
“To claim that there needs to be evidence produced to prove that at the time of execution of the lease, that the parties intended the lessee to fulfill the implied covenant is an abstract absurdity.
“This Court believes Mobil misapplies the law of Smith v. Amoco, supra.
“Mobil has admitted that the terms of the leases speak for themselves. When the leases were executed, if Mobil or its predecessor wished to avoid the implied covenant, they were obligated to include clear and express language to this effect in the royalty instrument itself. Gilmore v. Superior Oil, 192 Kan. at 391, 388 P.2d at 605.
“The Court has considered Mobil’s objection based on its theory of how the implied covenant must be established in each lease and finds that its pursuit of such defense will not result in the predominance of individual issues or otherwise render the case unmanageable.
“Mobil as the lessee-producer, has treated all of its royalty owners the same way, regardless of any variations in the lease language, and that makes this proposed class a manageable class action.”
Mobil’s challenge is based solely on its reading of our Supreme Court’s opinion in Smith v. Amoco Production Company, 272 Kan. 58, 31 P.3d 255 (2001), and specifically the court’s holding that the implied covenant to market gas produced at reasonable terms within a reasonable time is implied in fact rather than in law. There seems to be no dispute that Kansas has long recognized the duty of the lessee under an oil and gas lease not only to explore for and develop oil and gas production but to use reasonable diligence in finding a market for the product. The implied obligation is to market the produced minerals at reasonable terms within a reasonable time following production. See Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, 131, 785 P.2d 1010 (1990) (also citing K.S.A. 55-223). Given Smith, however, Mobil argues that whether an implied duty is inherent in each of the subject leases requires a detailed evaluation of each individual lease and the circumstances of lease formation to determine the intent of the parties.
No owner of a Kansas royalty interest has been required to prove a specific intent to include an implied covenant in an oil and gas lease. Robbins, 246 Kan. at 131 (‘We have long held that there is an implied obligation to market oil and gas under a lease agreement.”); Vonfeldt v. Hanes, 196 Kan. 719, 722, 414 P.2d 7 (1996) (“ ‘[Wjhere the lease itself does not contain express provisions creating duties in the lessee to drill exploratory wells [and] to . . . market the product if oil and gas are discovered in paying quantities, . . . the law imposes such duties upon the lessee under the doctrine of implied covenants.’ ”); Gilmore v. Superior Oil Co., 192 Kan. 388, 392, 388 P.2d 602 (1964) (“Kansas has always recognized the duty of the lessee under an oil and gas lease not only to find if there is oil and gas but to use reasonable diligence in finding a market for the product.”); see Temple v. Continental Oil Co., 182 Kan. 213, 234, 320 P.2d 1039, reh. denied 183 Kan. 471, 328 P.2d 358 (1958); Molter v. Lewis, 156 Kan. 544, 549, 134 P.2d 404 (1943); Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 690, 56 P.2d 431 (1936); Thiessen v. Weber, 128 Kan. 556, 559-60, 282 P. 190 (1929); Webb v. Croft, 120 Kan. 654, 657, 244 P. 1033 (1926); Cole v. Butler, 103 Kan. 419, 421, 173 P. 978 (1918), overruled in part on other grounds Brinkman v. Empire Gas and Fuel Co., 120 Kan. 602, 245 P. 107 (1926); see also Shell Petroleum Corporation v. Shore, 72 F.2d 193, 194 (10th Cir. 1934) (lease contained implied covenant to develop and protect premises). Some implied covenants in oil and gas leases have been codified in Kansas. See, e.g., K.S.A. 55-223 et seq.
Under Kansas law, an implied covenant can only be defeated by express language showing a contrary intent. Christiansen v. Virginia Drilling Co., 170 Kan. 355, Syl. ¶ 1, 226 P.2d 263 (1951) (“In the absence of provision to the contrary, there is an implied covenant to develop with reasonable diligence, an oil and gas lease in furtherance of the interests of both the lessor and the lessee.”); Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 372, 133 P.2d 95, aff'd on rehearing 156 Kan. 722, 137 P.2d 139 (1943) (“It is well established that in such a case there in an implied covenant to develop further, unless otherwise provided in die instrument itself.”); see also Ashland Oil and Refining Co. v. Cities Service Gas Co., 462 F.2d 204, 213 n.9 (10th Cir. 1972) (“[A]bsent any express provisions negativing such an implication, Kansas law will imply a covenant to diligendy explore, drill, produce and market the product in oil and gas leases.”).
Mobil contends that the Supreme Court effectively overruled all of this precedent in Smith. The limited issue in Smith, however, was whether the implied covenant to market gas produced from the leasehold was implied in fact or implied in law/or purposes of selecting the proper statute of limitations. The court concluded the covenant was implied in fact, resulting in the application of the 5-year statute of hmitations for express contracts. 272 Kan. at 60. Although the court discussed the countervailing authorities addressing whether implied covenants in these leases are implied in fact versus impHed in law, the court restricted its discussion, noting that
“ ‘[i]n those instances in which the court has been called upon to determine which statute of limitations should be applied to actions on the implied covenants, it has been held that the statute governing the bringing of actions on written contracts is applicable.’ (Emphasis added.) 5 Kuntz, A Treatise on the Law of Oil and Gas § 54.3(b), pp. 9-10 (1978).” 272 Kan at 74.
Likewise, the court cited another authority, noting: “ ‘Does it make any difference whether covenants are impHed in fact or in law? Judging from the reported cases, the answer seems to be, not often and not much.’ [Citation omitted.]” 272 Kan. at 73.
The Smith opinion is Hmited to holding that impHed covenants are impHed in fact for purposes of the statute of Hmitations. The opinion contains no hint that the court intended to overrule in any way prior cases which have not required proof of a factual intent for impHed covenants to exist. And most importantly, if this were the case, Smith would have required a very different remand that may well have destroyed the prerequisites for a class action. Instead, the remand directed only a finding on whether the impHed covenants were breached. 272 Kan. at 85.
A federal court of appeals long ago in a very celebrated and still viable case applying Kansas law suggested that impHed covenants within oil and gas leases are not so much a function of intent but rather of the obHgation inherent in the language of the contract:
“Implication is but another name for intention, and if it arises from the language of the contract when considered in its entirety, and is not gathered from the mere expectations of one or both of the parties, it is controlling.” Brewster v. Lanyon Zinc Co., 140 F. 801, 809 (8th Cir. 1905) (noted for its “continued vitality” in 5 Williams & Meyers, Oil and Gas Law, §§ 802, 806 [2009]).
Treatise law is in agreement — specific intentions of the parties to an oil and gas lease are of no legal moment to the existence of covenants impHed from the express language of the contract:
“When it comes to the application of an implied covenant to a particular dispute, courts may move some distance away from the fact of parties’ intention and closer to the law as an instrument for enforcing ethical norms. Thus when the lessor sues the lessee for his [or her] failure to use sandfracing to increase production, he may claim as a fact that he expected diligent efforts to be made to maximize production, but he can hardly claim that he expected the use of sandfracing when the lease antedated the invention of the process.” 5 Williams & Meyers, Oil and Gas Law § 803, p. 24.
Indeed, one need not examine parole evidence, surrounding circumstances, or extant industry practice to determine whether such covenants should be implied. This has simply never been the law or practice in Kansas.
Thus, Mobil’s contentions appear to read far too much into the Smith opinion. No direct language in Smith indicates that the implied covenants which have been read into oil and gas leases for years are hereafter to be proven to be within the subjective intent of the parties at the times the leases were entered into. As before, implied covenants are essentially presumed to be the intent of both parties and need not be proven by reviewing the specific intent of the executing parties; individualized proof of intent has never been required. We do not see that Smith intended to change this practice when its focus was solely on the statute of limitations issue. And most importantly, had the court been interested in an examination of individualized lease variations and circumstances surrounding formation, the remand would have been far different than ordered. See 272 Kan. at 60-61.
Mobil’s suggestion that such an individualized examination defeats the prerequisites for class action has been characterized as the de rigeur defense of such class actions and rejected by most courts. See McArthur, A Minority of OneP The Reasons to Reject the Texas Supreme Court's Recent Abandonment of the Duty to Market in Market-Value Leases, 37 Tex. Tech. L.R. 271 (Winter 2005). With Texas notably the stand-out nonconformist jurisdiction, most courts have rejected this defense when faced with remarkably similar facts. See, e.g., Duhe v. Texaco, Inc., 779 So. 2d 1070, 1082 (La. App. 2001) (class certified despite each royalty owner having a different lease, noting that “the underpayment was systemic, through one common course of conduct, giving rise to a common nucleus of operative facts”); Bice v. Petro-Hunt, L.L.C., 681 N.W.2d 74, 77-78 (N.D. 2004) (standardized conduct toward the royalty owners presents a common nucleus of operative facts even if differences in lease terms); Shockey v. Chevron U.S.A., No. 98,063 (Okla. App., unpublished opinion filed April 4, 2003) (class certified despite 45 to 50 variations in lease language).
We align our court with those of Louisiana, North Dakota, and Oklahoma in holding that in a purported class action claiming improper calculation of royalties, there is no need to examine individual lease formation and the intent of the parties thereto for purposes of determining predominance of common issues or manageability in certification proceedings where there has been shown a systemic common course of conduct by an oil and gas lessee in calculating royalties payable. We agree with the district court and its rationale in rejecting Mobil’s argument that a need for individualized examination of lease formation and language defeats predominance of common issues or otherwise renders this case unmanageable as a class action.
Having so held, we are not suggesting that all purported class members can be treated identically. Although Mobil does not seem to rely on the obvious major categories of potential class members in challenging the district court’s certification order, it was noted by the district court and it appears to this court that those for whom a 1984 settlement is applicable will likely need to be treated differently than those for whom the settlement is not applicable. Moreover, the record reflects that among the leases at issue, some were executed or amended recently to expressly abrogate the implied covenant that underlies the plaintiffs’ class allegations. These and other easily defined categories of potential plaintiffs, however, need not bar initial class certification.
Class action certification is discretionary with the trial court. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). A class may be altered, expanded, subdivided or abandoned as a case develops. Class actions may be amended, limited, or subclasses of plaintiffs may be established if needed. See 3 Conte & Newberg, Newberg on Class Actions §7.47, pp. 154-55 (4th ed. 2002).
In summary, we conclude the district court rigorously analyzed whether the prerequisites of the statute were satisfied. Especially with regard to the two areas challenged on appeal, the district court took the proper factors into account in the proper way and made a decision within the legal applicable legal standards to certify the class action. There was no abuse of discretion in the selection of choice of law principles or in rejecting an individualized examination of the circumstances surrounding each of the leases in order to determine whether implied covenants were intended. It is the judgment of this court that the district court performed a particularly comprehensive review of the statutory prerequisites, gave consideration to Mobil’s views on predominance and manageability, entered findings supported by the evidence, and made conclusions of law that were entirely sound and fully explained in the final journal entry of judgment.
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McAnany J.;
In this appeal we consider whether plaintiffs claims for negligent and intentional infliction of emotional distress by a Shawnee County 911 operator can withstand a motion for summary judgment so as to permit plaintiff to proceed to trial.
The plaintiff is Amy Lovitt, mother and next friend of 13-year-old Cason Bahr. She brings this action on Bahr’s behalf. Bahr was riding in his mother’s automobile when she suffered a seizure, causing her car to leave the road and strike a street sign. Bahr called 911, seeking emergency assistance. The 911 dispatcher told Bahr she did not believe him and stated, “That is the worst fake cry I’ve ever heard.” The dispatcher then asked, “Do you know what you’re doing? Cause it’s a crime . . . filing a false report is a crime.” The dispatcher hung up without sending assistance. The call lasted less than a minute. Shortly thereafter, Bahr flagged down a passerby, who called 911. This second 911 call was made about 30 seconds after the first call ended. This time a dispatcher sent help for Lovitt.
Lovitt commenced this action against the Board of County Commissioners of Shawnee County (County) based upon theories of outrageous conduct and negligent infliction of emotional distress. She claims damages for Bahr’s mental and emotional injuries and distress, including “symptoms of both Post Traumatic Stress Disorder and also Adjustment Disorder with Anxious Mood.” Bahr suffered no physical injury from the incident.
In its case management order, the district court set a deadline for plaintiff to disclose her expert witnesses and for the parties to complete discovery. The deadlines expired without any expert witness disclosure by plaintiff. After the close of discovery, the County moved for summary judgment on five alternative grounds: (1) the public duty doctrine; (2) immunity under the discretionary function exception to the Kansas Tort Claims Act, K.S.A. 2008 Supp. 75-6104(e); (3) lack of evidence of damages or that any claimed damages were proximately caused by the dispatcher’s conduct; (4) no actionable claim for intentional infliction of emotional distress; and (5) no physical injury to support a claim for negligent infliction of emotional distress.
In her response to the County’s motion, Lovitt set forth a statement of additional claimed uncontroverted facts regarding the nature of, extent of, and treatment for Bahr’s mental and emotional state. In support, Lovitt attached her affidavit in which she recounted the diagnosis made by Jeri Stonestreet, LSCSW, to whom Lovitt took Bahr for a diagnosis. According to Lovitt, Stonestreet “related” Bahr’s symptoms to the incident involving the 911 dispatcher.
The district court entered summary judgment in favor of the County on three alternative grounds: (1) the public duty doctrine, (2) immunity under the discretionary function exception to the Kansas Tort Claims Act, and (3) the lack of admissible evidence of causation. The court found that plaintiff had either abandoned her claim for negligent infliction of emotional distress or chose not to vigorously pursue it because Bahr suffered no physical injury in the incident.
Lovitt appeals, claiming error by the district court: (1) in applying the public duty doctrine, (2) in applying the discretionary function exception, (3) in holding that plaintiff abandoned the claim for negligent infliction of emotional distress, and (4) in granting summary judgment on plaintiff s claim of outrage.
We need not recount the standards for the district court’s consideration of a motion for summary judgment. They are well known to the parties and can be found in U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009), and Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). On appeal, we stand in the shoes of the district court and examine the County’s summary judgment motion de novo using the same standards that apply to the district court’s consideration of such matters. See Roe v. Kansas Dept. of SRS, 278 Kan. 584, 591, 102 P.3d 396 (2004).
Public Duty Doctrine
The issue regarding the public duty doctrine centers on the question of whether the County owed a duty to Bahr when he made his 911 call for assistance. Lovitt’s tort claims are predicated upon the County having breached a duty. The County is entitled to summary judgment on these claims if Lovitt cannot establish the existence of a duty. See Dozier v. Dozier, 252 Kan. 1035, 1041, 850 P.2d 789 (1993). Whether the County, through its 911 dispatcher, had a legal duty to Bahr presents a question of law appropriate for resolution by means of a motion for summary judgment. See Roe, 278 Kan. at 591-95; Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
The public duty doctrine provides that absent a special duty to the injured party, a governmental agency and its agents owe a duty to the public at large but not to an individual. Potts v. Board of Leavenworth County Comm’rs, 39 Kan. App. 2d 71, 81, 176 P.3d 988 (2008). A special duty to the injured party may arise when:
“(1) a special relationship existed between the governmental agency and the wrongdoer (i.e., the wrongdoer was in the State’s custody or care); (2) a special relationship existed between the governmental agency and the injured person (i.e., the injured person was in the State’s custody or care); or (3) the government agency performed an affirmative act that caused injuiy or made a specific promise or representation that under the circumstances created a justifiable reliance on the part of the person injured. [Citation omitted.]” 39 Kan. App. 2d at 81.
Lovitt has not alleged the existence of any special relationship to establish an exception to the doctrine and has alleged no promises by the dispatcher. The undisputed evidence establishes that the dispatcher made no affirmative promise to Bahr that she would send help. To the contrary, the dispatcher made it clear that she would not send help for Bahr’s mother.
However, Lovitt argues, for the first time on appeal, that a special duly arose by reason of the County’s affirmative representations, in promoting 911 as its emergency response system, that it would send help in response to a 911 call.
The County argues that Lovitt cannot raise this argument on appeal because it was never presented to the trial court. The County’s argument ignores our de novo review of the County’s summary judgment motion. Whether the public duty doctrine applies was raised and argued before the district court. In these de novo proceedings, we examine anew whether there remain genuine issues of material fact requiring a trial and, if not, whether the movant is entitled to judgment as a matter of law. This appeal provides the parties with the opportunity to raise new arguments insofar as they are confined to the factual record and to the issues addressed in the motion. Accordingly, we will consider this argument which arises from an issue raised in the motion. See South v. McCarter, 280 Kan. 85, 9495, 119 P.3d 1 (2005).
In the brief supporting its summary judgment motion, the County argued that no special relationship existed to bar application of the public duty doctrine. It also argued that “the Plaintiff cannot prove that he was entitled to specific protection due to his justifiable reliance on promises or representations of law enforcement officers.” In response to the motion, Lovitt addressed the public duty doctrine but failed to direct the court to any fact in the record relating to any detrimental reliance by Bahr, a necessary fact to create an exception to the doctrine. While Lovitt set forth additional claimed uncontroverted facts in her brief opposing the motion, none of those additional facts relates to any claimed detrimental rebanee.
Once the County sought refuge in the pubbe duty doctrine, it was incumbent upon Lovitt to direct the court to facts in the record which support the appheation of an exception to the doctrine if she contends the exception apphed. See Hurlbut v. Conoco, Inc., 253 Kan. 515, 520, 856 P.2d 1313 (1993). Lovitt argued against appheation of the doctrine, but she did not assert facts which would create an exception to it.
Further, though this issue has not been directly addressed previously in Kansas, Lovitt’s argument against appheation of the pub-be duty doctrine has been rejected by courts in other states under their own versions of the doctrine.
In Cummins v. Lewis County, 124 Wash. App. 247, 98 P.3d 822 (2004), aff'd 156 Wash. 2d 844, 133 P.3d 458 (2006), a wrongful death action based upon failure to respond to a 911 cab, the Washington Court of Appeals and then the Washington Supreme Court affirmed the entry of summary judgment against plaintiff based on her failure to demonstrate the existence of facts to support appheation of the special relationship exception to the public duty doctrine. The Supreme Court declared that a special relationship arises when “ 1 “(1) there is a direct contact or privity between the pubbe official and the injured plaintiff which sets the latter apart from the general pubbe, and (2) there are express assurances given by a pubbe official, which (3) gives rise to justifiable rebanee on the part of the plaintiff.” ’ [Citations omitted.]” 156 Wash. 2d at 854. “Express assurance” means “an affirmative promise or agreement to provide assistance.” 156 Wash. 2d at 855. The Washington Court of Appeals, affirmed by the Washington Supreme Court, observed:
“Cummins argues that the special relationship exception’s second element, requiring express assurance from a public official, is satisfied ‘hundreds of times by government entities on a daily basis’ that describe the 911 system through yellow pages, billboards, and radio and TV pubbe service announcements. . . . This overbroad argument fails to cite to the record, contradicts the pubbe duty doc trine’s central requirement that liability not attach to a government entity’s duty to the public at large, and conflicts with all four of the doctrine’s exceptions that require a reasonable degree of specificity.” Cummins, 124 Wash. App. at 254-55.
Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002), the court found that the duty of the 911 dispatcher was to the public at large and not to a specific individual:
“By its terms, [Maryland’s] statutory scheme [requiring all counties to operate an enhanced 911 system] does not create an emergency system to benefit a discrete group of persons. Rather, in providing for such broad services, it recognizes that, at different times, any and all citizens of, or visitors in, Maryland may find it necessary to utilize that system for innumerable purposes. In our view, acting to protect or assist a ‘specific group of individuals,’ sufficient to create a special relationship, involves more than general actions taken to serve members of the public at large in need of emergency telephone services.” 370 Md. at 499.
The public duty doctrine was also found not to apply under District of Columbia law in Wanzer v. District of Columbia, 580 A.2d 127, 132 (D.C. 1990), a similar action for failure to respond to a 911 call.
Lovitt’s argument, unsupported in the record, that the County made representations to the public through widespread advertising of the 911 system is directed to the notion of a duty to the public at large rather than a duty to specific individuals.
Finally, Lovitt’s claim of detrimental reliance is not based on any claimed representations by the 911 dispatcher. The 911 dispatcher’s response to Bahr’s call was that no help would be forthcoming. Bahr did not detrimentally rely on this message. He sought out someone else to make a 911 call for him. When that happened, help was forthcoming. Thus, independent of Lovitt’s failure to show a “special relationship” to invoke an exception to the public duty doctrine, she fails to present facts to establish a triable issue on the element of detrimental reliance.
In Cuffy v. City of New York, 69 N.Y.2d 255, 260, 505 N.E.2d 937 (1987), a case involving a claim that the police failed to provide promised protection, the court considered the application of the special duty exception to the general rule that “a municipality may not be held hable for injuries resulting from a simple failure to provide police protection.” The court concluded that “when the reliance element is either not present at all or, if present, is not causally related to the ultimate harm, this underlying concern is inapplicable, and the invocation of the ‘special duty’ exception is then no longer justified.” 69 N.Y.2d at 261.
Our de novo review of the County’s motion satisfies us that there is no genuine issue of material fact with respect to application of the public duty doctrine which bars Lovitt’s claims, and the County is entitled to judgment as a matter of law. The district court did not err in so ruling.
Discretionary Function
Lovitt’s claims are subject to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., which, with certain exceptions, imposes tort liability “for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 2008 Supp. 75-6103(a).
The district court found that the discretionary function exception in K.S.A. 2008 Supp. 75-6104(e) applied to insulate the County from liability for Bahr’s claimed damages. That statute provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” K.S.A. 2008 Supp. 75-6104(e).
Our Supreme Court has held that “the proper test for applying the discretionary function exception look[s] to the nature and quality of the discretion exercised. Under this test, the court focuses on whether- the act in question is one the legislature intended to shield from liability.” McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 645-46, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
Without any factual basis in the record, the County argues that its 911 operators exercise discretion when dispatching officers and ambulances. It claims, again without authority in the record, that its dispatchers’ duties include distinguishing between legitimate and prank calls.
It seems reasonable that the County should authorize its 911 dispatchers to exercise a degree of discretion in the handling of 911 calls. We do not know the actual nature and extent of that discretion. The County would have us conclude that since the exercise of discretion is reasonable, it is a fact.
K.S.A. 60-256 and Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) set forth a detailed protocol for proceedings on motions for summary judgment. If the fact that 911 dispatchers exercise discretion is a fact the County wishes to rely upon in support of its motion, that fact must be addressed in the manner described in Rule 141(a). It must be set forth in a separately numbered paragraph as an uncontroverted contention of fact with a precise reference to where in the record it can be found. This rule is not mere “fluff’; it serves a necessary purpose, and it means what it says. See McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984).
The County has failed to comply with Rule 141 in this regard. Consequently, the factual predicate for the County’s argument, that the discretionary function exception applies, is not available given the present state of the record. Based on the record presently before us, the County has failed to demonstrate that it is entitled to judgment as a matter of law on the discretionary function exception to tort liability under the Kansas Tort Claims Act, K.S.A. 2008 Supp. 75-6104(e).
Negligent Infliction of Emotional Distress
The County argued to the district court that Lovitt may not proceed on Bahr’s claim for negligent infliction of emotional distress because he suffered no physical injury in the incident: The district court observed that
“from a review of the Response to the Defendant’s Motion for Summary Judgment, it appears that the Plaintiff abandoned (or at least decided not to vigorously pursue) any negligence claim in this case because of the lack of any physical injury.”
Ware v. ANW Special Educational Coop. No. 603, 39 Kan. App. 2d 397, 401, 180 P.3d 610 (2008), presents an extensive and recent discussion of the issue which we need not recount here. The current state of Kansas law is that a plaintiff claiming damages for the negligent infliction of emotional distress must demonstrate a physical injury or a physical impact which causes an actual injury. See Grube v. Union Pacific R.R. Co., 256 Kan. 519, 522, 886 P.2d 845 (1994).
In paragraphs 10 and 11 of its statement of uncontroverted facts, the County asserts that plaintiff does not allege any physical injury as a result of this incident. Lovitt concedes that this statement is true. Thus, there is no genuine issue of material fact that impedes granting the County judgment as a matter of law on plaintiff s claim of negligent infliction of emotional distress.
Outrage
The tort of outrage is also known as intentional infliction of emotional distress. Hallam v. Mercy Health Center of Manhattan, Inc., 278 Kan. 339, 340, 97 P.3d 492 (2004). To establish the tort of outrage, a plaintiff must present evidence which establishes that the defendant committed intentional or reckless conduct which was so extreme and outrageous as to be regarded as utterly atrocious or intolerable in a civilized society and which caused the plaintiff extreme and severe mental distress. See Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999); Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727 (1998); PIK Civ. 4th 127.70.
Before submitting a claim of outrage to a jury, the district court must make a threshold determination that (1) the defendant’s conduct may be regarded as sufficiently extreme and outrageous to permit recovery under the law and that (2) the plaintiff s mental distress was of such a nature that no reasonable person should have been expected to endure it under the circumstances. See Smith, 265 Kan. at 876.
Here, the district court concluded that Lovitt failed to meet the threshold requirements necessaiy to submit Bahr’s outrage claim to the jury. The district court stated:
“Although the 911 dispatcher in the present case clearly made a mistake when viewed in 20-20 hindsight, and her response could be viewed by a reasonable person to have been unprofessional, the record does not reflect that the conduct was ‘so extreme and outrageous as to permit recovery.’ Likewise, the Court does not find sufficient evidence in the record to establish that the 911 dispatcher caused emotional distress which was [‘]so severe and extreme that no reasonable person should be expected to endure it’ ”
Unlike in claims of negligent infliction of emotional distress, bodily harm is not a prerequisite to a claim of intentional infliction of emotional distress. See Roberts v. Saylor, 230 Kan. 289, 292, 637 P.2d 1175 (1981). However, plaintiff must establish evidence of mental distress which is extreme and severe and causally connected to the defendant’s outrageous conduct. As noted earlier, Bahr’s 911 call took about a minute and was followed by a second 911 call about 30 seconds later which brought help to Bahr’s mother.
The only evidence of extreme and severe mental distress came from Lovitt’s hearsay affidavit in which she reported that (1) she observed after this incident that her son was “extremely anxious and watchful of anyone with whom he would ride”; (2) as a result, she took him to a social worker for an evaluation; (3) the social worker opined that Bahr suffered from “posttraumatic stress disorder symptoms and adjustment disorder with anxious mood,” which the social worker related to the 911 incident; and (4) since the social worker’s evaluation, Bahr has continued to exhibit these symptoms.
The district court correctly found that “posttraumatic stress disorder symptoms and adjustment disorder with anxious mood” are not conditions which would be apparent to the average layperson. Accordingly, expert testimony would be necessaiy to establish the existence of these conditions in Bahr and to determine their cause. See Singh v. Krueger, 39 Kan. App. 2d 637, Syl. 2, 183 P.3d 1, rev. denied 286 Kan. 1180 (2008). In the course of discovery, Lovitt failed to identify an expert to address these issues. Instead, she attempted to introduce into the record the social worker s opinion through her own affidavit. The district court, on the County’s motion, struck these hearsay statements in Lovitt’s affidavit. Lovitt does not challenge the district court’s hearsay ruling on appeal. In any event, applying the de novo standard of review, we concur with the district court’s action in striking the hearsay statements.
With no testimony from the social worker, assuming for the moment that the social worker would have been competent to render an opinion on these matters, Lovitt is left with no evidence of her son’s emotional distress and no evidence of causation other than her own observations in her affidavit that Bahr has been extremely anxious and watchful after this incident. Such evidence does not satisfy the threshold of extreme and severe mental distress of such a nature that no reasonable person should have been expected to endure it under the circumstances. See Smith, 265 Kan. at 876. Further, Lovitt’s post hoc, propter hoc observations do not establish causation.
We conclude from our independent examination that there remains no genuine issue of material fact on Lovitt’s claim on behalf of her son for intentional infliction of emotional distress, and the County is entitled to judgment as a matter of law on this claim.
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Greene, J.:
The City of Topeka appeals a Court of Tax Appeals’ order that asserted jurisdiction over a tax grievance and required the City to refund ad valorem taxes paid by Dillon Real Estate Co. Inc. (Dillon), after our Supreme Court annulled an annexation by the City of the property giving rise to these taxes in Dillon Real Estate v. City of Topeka, 284 Kan. 662, 163 P.3d 298 (2007). The City argues that Dillon’s tax grievance was improper because it was not based on a clerical error under K.S.A. 2009 Supp. 79-1701, and that Dillon should have paid its taxes for the years in question under protest pursuant to K.S.A. 2009 Supp. 79-2005 in order to claim its refunds under these circumstances. Concluding that Dillon’s tax grievance was the proper vehicle to seek its tax refunds, we affirm the Court of Tax Appeals.
Factual and Procedural Background
In December 2003, the City announced its annexation of approximately 10 acres within the Mission Township, which lands contained Dillon’s Store #37. In January 2004, Dillon joined with Mission Township and the Sherwood Improvement District to challenge the annexation. The ensuing litigation proceeded through the district court, where the City ultimately prevailed on summary judgment. On appeal of this judgment, our Supreme Court ruled in July 2007 that the annexation was in contravention of applicable statutes and “a nullity.” Dillon Real Estate, 284 Kan. at 681.
Throughout the pendency of the annexation litigation, the City levied ad valorem taxes against Dillon for its property included in the annexation. For tax years 2004, 2005, and 2006, Dillon paid the taxes levied by the City and did not pay them under protest.
In December 2007, Dillon and Mission Township filed tax grievances, see K.S.A. 2009 Supp. 79-1701 and K.S.A. 2009 Supp. 79-1702, with the Court of Tax Appeals (COTA) seeking a refund of taxes wrongfully collected by the City on the property that had been subject to the void annexation. (2009 versions of statutes are materially unchanged from 2007 versions.) In Januaiy 2009, COTA found that because the annexation was declared a nullity, the tax situs of Dillon had always been Mission Township and the assessment of taxes by the City was a clerical error under K.S.A. 2009 Supp. 79-1701. COTA ordered Shawnee County to correct the clerical error in the assignment of the taxing district to reflect that the subject properties were located in Mission Township and ordered refunds to Dillon for taxes paid in 2004,2005, and 2006, less an offset for taxes owed to Mission Township — the correct situs of the property in these tax years.
The City’s motion for reconsideration was denied, and a timely petition for judicial review is now before us.
Standards of Review
Judicial review of COTA’s orders is governed by K.S.A. 2009 Supp. 77-621. For purposes of this appeal, application of this statute requires the appellate court to grant relief if: (i) The agency has erroneously interpreted or applied the law, K.S.A. 2009 Supp. 77-621(c)(4); or (ii) the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 2009 Supp. 77-621(c)(8).
This case involves an issue of statutory interpretation. Statutory interpretation is a question of law, but special rules apply when this court reviews an administrative agency’s interpretation or application of a statute. See Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
“ ‘The doctrine of operative construction of statutes provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. [Citation omitted.]’ Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 70, 150 P.3d 892 (2007).” Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 227-28, 210 P.3d 647 (2009).
But see Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (the appellate courts have been reluctant to apply the doctrine of operative construction when faced with questions of law on undisputed facts. The Supreme Court has held that the determination of an administrative body on a question of law on undisputed facts in not conclusive and while persuasive, it is not binding on the court. See, e.g., Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270-71, 130 P.3d 555 [2006]).
Did COTA Err in Asserting Its Jurisdiction Based on Dillon’s Request for Refunds in the Form of a Tax Grievance Under K.S.A. 2009 Supp. 79-1701?
The City initially challenges COTA’s jurisdiction, arguing that Dillon’s tax grievance was not based on a clerical error delineated by K.S.A. 2009 Supp. 79-1701 and therefore barred by K.S.A. 2009 Supp. 79-1702 because errors not specifically listed in K.S.A. 2009 Supp. 79-1701 are remediable only by payment under protest pursuant to K.S.A. 2009 Supp. 79-2005. The City contends that its assessments for each of the tax years in question was pursuant to an annexation of record and valid in every respect until the later decision of the Supreme Court. Accordingly, the City argues that there was no “clerical error” regarding the situs of the subject property, as contemplated and required for a tax grievance under K.S.A. 2009 Supp.79-1701.
We begin by examining the operative statutes. K.S.A. 2009 Supp. 79-1701 provides:
“The county clerk shall, prior to November 1, correct the following clerical errors in the assessment and tax rolls for the current year, which are discovered prior to such date:
“(a) Errors in the description or quantity of real estate listed;
“(b) errors which have caused improvements to be assessed upon real estate when no such improvements were in existence;
“(c) errors whereby improvements located upon one tract or lot of real estate have been assessed as being upon another tract or lot;
“(d) errors whereby taxes have been charged upon property which the state court of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state;
“(e) errors whereby the taxpayer has been assessed twice in the same year for the same property in one or more taxing districts in the county;
“(f) errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs; and
“(g) errors whereby the values or taxes are understated or overstated as a result of a mathematical miscomputation on the part of the county.” (Emphasis added.)
K.S.A. 2009 Supp. 79-1702 provides:
“If any taxpayer, municipality or taxing district shall have a grievance described under the provisions of K.S.A. 79-1701 or 79-1701a, and amendments thereto, which is not remediable thereunder solely because not reported within the time prescribed therein, 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 court 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 described 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 precise question framed is whether the basis for Dillon’s grievance was a clerical error correctable under K.S.A. 2009 Supp. 79-1701(f) or whether Dillon should be barred from refund relief because it failed to pay these taxes under protest for each of these tax years under K.S.A. 2009 Supp. 79-2005.
The City argues that a void annexation does not constitute a clerical error within the meaning of K.S.A. 2009 Supp. 79-1701 because the clerk did not make a mistake by assigning the annexed property to the City’s tax district. COTA rejected this argument as follows:
“K.S.A. 79-1701(f) defines a clerical error subject to correction to include ‘[e]rrors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs.’ The Court finds that the taxable situs of the subject property was Mission Township because the purported annexation was a nullity. The subject property was assigned to taxing districts where the property did not have its taxable situs. The clerk’s state of mind is not the determinative factor. As a result, the correct taxing district for the subject property for tax years 2004, 2005, and 2006 was Mission Township.”
On appeal, the City essentially argues that COTA erred in suggesting the “clerk’s state of mind is not the determinative factor,” arguing that the assignment of taxing district here was “not an error at all,” citing both In re Tax Relief Application of Hocker, 29 Kan. App. 2d 248, 27 P.3d 914 (2000), rev. denied 271 Kan. 1036 (2001), and In re Application of Kinnet, 26 Kan. App. 2d 250, 984 P.2d 725 (1999). We examine both cases to determine their applicability here.
In Hocker, a panel of our court ruled that a taxpayer could not obtain retroactive grievance relief based upon an appraiser’s classification of the properly that was later determined to be erroneous. 29 Kan. App. 2d at 252-55. The court held:
"The appellants are correct that discretion is not the ultimate determining factor of whether an error is a clerical error within the meaning of K.S.A. 79-1701. However, the lack of discretion is a major component of the errors listed in K.S.A. 79-1701.
“. . . The classification of the property in 1991 was assigned as a matter of professional judgment and determination made by an appraiser based upon the facts known to him or her at the time that the vacant property was green space surrounding commercially used land. That classification was recorded correctly in 1991 according to the assessment of the appraiser. The appellants ha[d] a duty to follow the proper statutory provisions for appealing this determination in order to protect their rights.” 29 Kan. App. 2d at 254-55.
We conclude that Hocker is not applicable here because Hooker’s classification error was not among the specific errors recognized and listed within K.S.A. 79-1701, thus more properly considered an error “committed in the valuation and assessment process” and remediable only under K.S.A. 79-2005. See K.S.A. 2009 Supp. 79-1702. In contrast, the error here was among those specifically listed in K.S.A. 2009 Supp. 79-1701, to wit, an error whereby the property was assigned to a taxing district where the property had no taxable situs. Although the panel in Hocker included a definition of “clerical error” in its opinion, the court stopped short of applying that definition as a condition to relief under K.S.A. 79-1701. Indeed, the legislature has itself characterized all of the itemized errors in the statute as “clerical errors,” and it is beyond our province to declare that any of those listed errors — which are expressly characterized by the legislature as clerical errors — are not, in fact, clerical in nature.
In Kinnet, a panel of our court ruled that a judicial decision holding that one cellular telephone company was not a public utility did not support a tax grievance seeking retroactive refund relief for other cellular companies whose property had been classified and taxed as public utility property in past years. 26 Kan. App. 2d at 256-59. The court based its decision on the prospective nature of the judicial decision at issue, the failure of the taxpayers to exhaust their administrative remedies, and the absence of any cognizable claim under the uniform and equal provision of Article 11, §1 of the Kansas Constitution. 26 Kan. App. 2d at 258-59.
We are not convinced that Hocker and Kinnet have application here because the error in those cases is not among those specifically listed in K.S.A. 2009 Supp. 79-1701. Moreover, the judicial decision at issue in Kinnet, 26 Kan. App. 2d at 253, was held to be for prospective application only, whereas the annexation decision at issue herein clearly and expressly declared that the 2003 annexation was “a nullity.” See Dillon Real Estate, 284 Kan. at 681. As a matter of law, the annexation never occurred, thus rendering the assessments by the Cily to be errors whereby property was assigned to a district where the property had no taxable situs. See Black’s Law Dictionary 1173 (9th ed. 2009) (nullity is something that is legally void).
It is obvious from these cases, however, that our appellate courts have struggled with the applicability of 79-1701 where the error was not specifically listed and not particularly clerical in nature. We believe, however, that the City urges us to read the statute erroneously, suggesting that the listed errors should not be subject to tax grievance relief unless they are clerical in nature. In fact, the legislature has listed the errors and specifically characterized them as “clerical errors” in K.S.A. 2009 Supp. 79-1701(a)-(g). If the legislature had intended the City’s construction, the statute could have given authority for correction of “clerical errors when they arise in the following contexts.” Instead, the statute clearly states that the listed errors are “clerical errors” by legislative fiat. Parsing each such error for the reason it occurred, including examination of intention, discretion, or judgment of tax authorities is simply not required by the statute.
Although the City suggests that Dillon should have paid its taxes under protest pursuant to K.S.A. 2009 Supp. 79-2005 during the pendency of the litigation, we agree with Dillon that payment under protest would have been disingenuous and futile so long as it had not yet achieved success in the challenge to annexation. Until July 2007, any suggestion that Dillon’s property had been assigned to the wrong taxing district was false; the annexation had legal effect in December 2003, and any tax protest filed on the basis of erroneous assignment would have been subject to summary dismissal by county officials and COTA. Perhaps Dillon could have filed such protests and sought a stay of proceedings pending a final decision in the annexation litigation, but we note that the statutory time limitations on all aspects of such a proceeding would likely have dictated denial of stay and summary dismissal. See K.S.A. 2009 Supp. 79-2005(a), (g), and (i); K.S.A. 2009 Supp. 74-2438.
In the final analysis of the question, the fact that any “error whereby the assessment of either real of personal property has been assigned to a taxing district in which the property did not have its taxable situs” has been deemed a “clerical error” by the legislature in K.S.A. 2009 Supp. 79-1701(f). Such errors are clearly remediable by the tax grievance procedure, whether the result of mistake, erroneous reporting, fraud, or a void annexation. Our Supreme Court has stated in rejecting a similar attempt to restrict the application of K.S.A. 1987 Supp. 79-1701(g) [now K.S.A. 2009 Supp. 79-1701(f)]:
“Appellant argues the county’s mistake cannot be deemed a clerical error, because once the error was discovered, the county had to use discretion to determine if the property was assigned to the correct taxing district.
“Appellees argue the statute allows for corrections in just this situation. It argues a narrower reading would cause chaos, as an investigation would have to be made to discover how each error was made in the hundreds of cases of this type each year. Even if the investigation proved fruitful, a narrow reading would render many errors uncorrectable, resulting in taxpayers being unjustly taxed. Appellees also argue there is no discretion involved in assigning property to a particular taxing unit — it is merely a matter of matching the location of the property to the correct geographical district on the taxing map. We agree with the argument of appellees. K.S.A. 1987 Supp. 79-1701(g) clearly and unambiguously makes the assigning of property to the wrong taxing district a clerical error correctable by the county clerk.” In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 558, 757 P.2d 314 (1988).
COTA did not err in asserting its jurisdiction over Dillon’s tax grievance under K.S.A. 2009 Supp. 79-1701(f).
Was COTA’s Refund Order Overbroad in Extending to Three Tax Years Rather than Two?
The City next argues that COTA erred in ordering refunds for tax year 2004 because K.S.A. 2009 Supp. 79-1701a limits the authority of a county board of commissioners to correct errors to “the current year and the immediately preceding two years during the period on and after November 1 of each year.” Consequently, the argument is that COTA likewise had authority to correct errors only for 2005 and 2006, but not 2004.
At the outset, we note that this argument was never presented to COTA — either prior to or in the City’s motion for reconsideration. K.S.A. 2009 Supp. 77-617 limits new issues being raised on judicial review of administrative actions, and the issue now asserted by the City is not among those permitted to be raised absent having been raised before the agency.
Even if we were to reach the merits of the issue, however, we believe the City again misinterprets the statutory scheme. Although the board of county commissioners has time restrictions on the scope of relief, we see no similar restrictions on COTA. COTA’s authority is governed by K.S.A. 2009 Supp. 79-1702, which provides:
“If any taxpayer, municipality or taxing district shall have a grievance described under K.S.A. 79-1701 or 79-1701a which is not remediable thereunder solely because not reported within the time prescribed therein, ... it may direct that the same be remedied either by cancelling the tax, if uncollected, together with the 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 [with] interest
K.S.A. 2009 Supp. 79-1702 clearly gives COTA the authority to correct errors that would otherwise be available under K.S.A. 2009 Supp. 79-1701 and K.S.A. 2009 Supp. 79-1701a, but are not remediable thereunder because they not reported within the time prescribed therein. Applying the limits of K.S.A. 2009 Supp. 79-1701a to K.S.A. 2009 Supp. 79-1702 contradicts the language of K.S.A. 2009 Supp. 79-1702 authorizing COTA to correct errors not reported within the time limits of K.S.A. 2009 Supp. 79-1701a. While K.S.A. 2009 Supp. 79-1701a limits the board of county commissioners to correcting errors for the “current year and die immediately preceding two years,” no such limitation is found in K.S.A. 2009 Supp. 79-1702.
In summary, we perceive no error by COTA in awarding refund relief to Dillon for three tax years pursuant to the tax grievance procedure where the City had collected ad valorem taxes on property that was improperly assigned to the City’s taxing district because of an annexation later deemed a nulhiy.
Affirmed. | [
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Leben, J.:
Robert Hartman challenges the City of Mission’s refusal to hold a referendum election for two ordinances that citizens had proposed through petition relating to the establishment of a historic district within the city, and he also challenges the city council’s exclusion of one of its members from an executive session held to discuss these proposed ordinances. Although Hartman owns a business in Mission, he does not live there — and only Mission residents may sign a petition seeking a referendum election or vote in that election. And only Mission residents may vote for members of its city council. We therefore conclude that Hartman has no personal interest in the issues at hand, and we dismiss his lawsuit for lack of standing.
Whether a party has standing to sue is a question of law on which an appellate court must review the matter independently, without any required deference to the district court. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 751, 189 P.3d 494 (2008). Generally, the court accepts the facts alleged in the plaintiff s petition as true, 286 Kan. at 751, but when the opposing party challenges facts on a jurisdictional issue like standing, the court doesn’t need to accept the petition’s factual statements as true and may decide the issue based on the evidence presented. Klaver Constr. Co., Inc. v. Kansas Dept. of Transp., 211 F. Supp. 2d 1296, 1301 (D. Kan. 2002). Here, although Hartman’s petition listed an address for him in Mission, the city presented evidence that he actually was a Shawnee resident, a fact that Hartman didn’t dispute either before the district court or on appeal.
Only a person who has alleged a personal stake in the outcome of the controversy has standing. Bremby, 286 Kan. at 750-51. In addition, the plaintiff s asserted claim must be within the range of interests protected by the law at issue. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 892, 179 P.3d 366 (2008) (citing requirement that plaintiff s complaint must come within the zone of interests protected). Hartman simply doesn’t have a personal stake that the law protects in either of the issues involved in this lawsuit.
Before discussing in detail why Hartman lacks standing, we acknowledge that Hartman’s business is located within the area that the proposed ordinances would classify as a historic district, and his business may well be affected by the city’s decision whether to pass these ordinances. But Hartman’s business does not give him standing to force the city to act one way or another regarding the ordinances. If the city is violating Hartman’s rights as a property owner — either by enacting the ordinances or by refusing to do so— Hartman may sue to obtain redress for that violation. That’s not the claim he has raised in this suit.
The first issue in the suit is his challenge of the city’s refusal to hold a referendum election. The merits of that claim involve whether the proposed ordinances are administrative functions (where the city would not have to hold the election) or legislative functions (where citizens have the right to petition for such an election). See K.S.A. 12-3013; McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184 (2009). But only those entitled to vote in city elections may sign such petitions, K.S.A. 12-3013(a), and only Mission residents may vote in its elections. See Kan. Const., Art. 5, § 1 (“Every citizen . . . who resides in the voting area in which he or she seeks to vote shall be deemed a qualified elector.”); Mission Kan. Code § 110.015 (B) (2009). Residents of other cities do not have standing to force Mission to hold a referendum election, nor would they be able to vote in that election.
The second issue is Hartman’s challenge of the city council’s exclusion of one of its members from an executive session at which the proposed ordinances were discussed. Once again, because Hartman doesn’t reside in Mission, he has no standing to seek court review of the council’s action in excluding one of its members from a discussion. Moreover, it is well established that a party to a lawsuit may not assert the rights of others; the challenged conduct must directly affect the party suing over it. State ex rel. Morrison, 285 Kan. at 892; State v. Neighbors, 21 Kan. App. 2d 824, 828-29, 908 P.2d 649 (1995). Hartman is asserting the rights of the excluded council member, not his own. Hartman tries to avoid this problem by alleging that he suffered an injury to his right to representation, but mere property owners in a city who are not residents do not have the right to representation on its city council.
Hartman makes a general argument on both issues that standing rules are relaxed when only a declaration of legal rights is sought, which is the case in this suit. He is right about this general legal rule. See State ex rel. Morrison, 285 Kan. at 897. But an actual case or controversy — in which the plaintiff has standing — is still required even in actions seeking declaratory relief. 285 Kan. at 896-97.
When this case was pending before the district court, an additional plaintiff was a Mission resident. While the district court dismissed the claims related to the council member’s exclusion on standing grounds, it did address the merits of whether the referendum election had to be held. The Mission resident has since dismissed his claims, leaving only Hartman. Hartman argues that because Supreme Court Rule 5.04 (2009 Kan. Ct. R. Annot. 35) provides that the “dismissal of the appeal of one party shall not affect an appeal taken by any other party,” we should allow him to proceed. Rule 5.04 provides no safe harbor for Hartman or any other litigant who lacks standing. Any plaintiff must have standing to proceed, whether at the district court or on appeal. Although the district court did not address Hartman’s standing to pursue claims about the referendum election, Hartman has never had standing for the reasons we have already explained. Hartman’s claims are lost because Hartman lacks standing to pursue them, not because someone else chose not to continue in the lawsuit.
We therefore affirm the district court’s judgment dismissing for lack of standing Hartman’s claims involving the council member’s exclusion. We dismiss for lack of standing Hartman’s appeal on his claim that the city was required to hold a referendum election. | [
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Knudson, J.:
The Kansas Department of Revenue (KDR) appeals the district court’s judgment in favor of Richard L. Enslow, whose driving privileges had been suspended after a breath test failure under K.S.A. 8-1001 et seq. KDR contends the district court erred in its conclusion that a substitute certification and notice of suspension form (commonly referred to as a DC-27) was null and void.
We reverse the district court and remand this case for the entry of judgment reinstating the suspension order of the KDR.
The underlying facts are not in material dispute. Enslow failed a breath test under K.S.A. 8-1001 et seq. Immediately thereafter, the arresting officer personally served Enslow with the DC-27 as required under K.S.A. 1998 Supp. 8-1002. Shortly after Enslow had been released from custody, the arresting officer realized errors were made in completing the form. Specifically, he failed to complete paragraph 4 of the certification, which indicates whether the licensee failed or refused the test, and he mistakenly entered Enslow’s birth date as December 16, 1998, instead of the correct date of December 16, 1957. The arresting officer completed another DC-27 and personally served Enslow at his residence, explaining to him that the first form was not properly completed. The officer destroyed the original DC-27 and forwarded the properly completed DC-27 to the division of vehicles. After exhausting administrative remedies, Enslow made a timely de novo appeal to the district court, pursuant to K.S.A. 1998 Supp. 8-259. At trial, Enslow waived all claims except that the KDR’s suspension order was based on an invalid DC-27 which was not served in conformity with K.S.A. 1998 Supp. 8-1002. The district court agreed and entered judgment in favor of Enslow. In its order denying the KDR’s motion for reconsideration, the district court stated its findings and conclusions relied upon to support the underlying judgment:
“1. The attempted service upon plaintiff was not in compliance with the statute.
“2. The errors in the original DC-27 were fatal to the effectiveness of the intended action.
“3. The attempted testimony of the defendant is self serving in that the defendant seeks to enforce an admitted second DC-27 when the first DC-27 was destroyed and is not available for evidence.
“4. The first DC-27 would not have been enforced by the defendant if such had been forwarded to the Department of Revenue.
“5. The errors alleged are therefore not procedural, but are fatally defective that the defendant now asserts were correctable by a remedial action.
“6. The Court finds that the statute should be strictly construed against the defendant.
“WHEREFORE, it is hereby ordered, adjudged and decreed that the order previously entered should be reaffirmed and the motion to reconsider should be denied.”
Did the district court correctly interpret K.S.A. 1998 Supp. 8-1002? Because interpretation of a statute is a question of law, our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). However, before considering this issue, we must first consider whether the rule of strict construction was appropriately applied by the district court.
K.S.A. 1998 Supp. 8-1001(i) states: “This act is remedial law and shall be liberally construed to promote public health, safety and welfare.” This rule of liberal construction was specifically acknowledged in State v. Counseller, 22 Kan. App. 2d 155, 157, 912 P.2d 757, rev. denied 260 Kan. 997 (1996). Clearly the district court erred in concluding K.S.A. 1998 Supp. 8-1002 should be strictly construed.
The DC-27 is a combined certification of: (a) either a test refusal or failure, (b) an implied consent advisory form, and (c) a notice of suspension of driving privileges. The implied consent advisory form is required under K.S.A. 1998 Supp. 8-1001(f)(l) and is not directly implicated in this appeal. Enslow’s argument at trial and now on appeal is that the certification once completed and served could not be modified and the notice of suspension could not be served or re-served at his residence. This argument requires that we consider specific provisions of K.S.A. 1998 Supp. 8-1002.
Certification
K.S.A. 1998 Supp. 8-1002(a)(2) and (3) state the information that must be included in the law enforcement officer’s certification when there is an alcohol or drug test failure. We have already noted the omissions from the original certification. In all other respects, the certification conformed with the statute.
K.S.A. 1998 Supp. 8-1002(b) provides:
“[C]ertification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein.”
Enslow would have us interpret the above statutory phrase “certification shall be complete upon signing” as preventing a law enforcement officer from correcting errors and omissions in the certificate before sending the DC-27 to the Division of Vehicles. That is not what the statute states, and we do not believe such a con struction would be consistent with legislative intent. K.S.A. 1998 Supp. 8~1002(b) was enacted to avoid an argument that additional foundational requirements were necessary before the Division of Vehicles could suspend a licensee’s driving privileges. The statute cannot be reasonably interpreted to mean a police officer cannot correct errors or omissions in a DC-27 after service but before receipt by the Division of Vehicles.
Our interpretation is reinforced by K.S.A. 1998 Supp. 8-1002(f), which states:
“Upon receipt of the law enforcement officer s certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person’s driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.”
Again, there is no indication the legislature intended to preclude correction of a DC-27 before it is sent to the Division of Vehicles.
Enslow’s interpretation of K.S.A. 1998 Supp. 8-1002 would require that whenever there is service of an incomplete certification, no corrective action may be taken by the police officer prior to the Division of Vehicles’ receipt of the DC-27. Such an interpretation would also mean the Division could not suspend the licensee’s driving privileges. We believe Enslow’s interpretation to be without legal merit, contrary to the clear language of K.S.A. 1998 Supp. 8-1002, and inconsistent with legislative intent.
For all of the reasons stated above, we conclude the district court erred in concluding it was improper for the officer to prepare a second DC-27 correcting errors and omissions.
Notice of Suspension
The following procedures are required in K.S.A. 1998 Supp. 8-1002(c):
“When die officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing tire notice to the person at the address provided at the time of the test.”
We do not agree with Enslow’s interpretation of K.S.A. 1998 Supp. 8-1002(c). Initially, Enslow was served while in custody; however, we note the statute does not state service must occur while the licensee is in custody; it only requires that service be made in person by the officer. That was done, not once, but twice. We will not read into the statute a requirement not provided for by the legislature. In State v. Kristek, 14 Kan. App. 2d 77, 79, 781 P.2d 1113 (1989), the court referred to the notice provisions of K.S.A. 8-1001 and stated: “Since these procedures are specific and were enacted as part of a comprehensive revision, it may be assumed that the legislature included all the requirements which they intended to impose on law enforcement officers.”
In State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997), the Supreme Court stated: “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.”
We conclude personal service is the express linchpin of K.S.A. 1998 Supp. 8-1002(c). In Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, Syl. ¶ 2, 853 P.2d 69, rev. denied 253 Kan. 856 (1993), our court noted: “A driver whose driving privileges have been suspended is not required to show prejudice if not personally served in order for the mandatory personal service provisions of K.S.A. 8-1002(c) to be enforced.”
This holding in Anderson is entirely consistent with the clear and unambiguous language of the statute. Substantial compliance was held insufficient because personal service is expressly required and sets into motion the substantive proceedings to suspend driving privileges. 18 Kan. App. 2d at 349, 355. Anderson does not support the argument Enslow makes that would have us require more than the statute requires and make impossible any correction of the DC-27 after service but before mailing to the Division of Vehicles.
The district court also intimated at trial that the officer’s destruction of the first DC-27 was improper. We do not agree with the trial court. Enslow had been served with a copy. There was no effort by the officer to conceal what had occurred and Enslow was not prejudiced by the officer’s actions.
We conclude the district court erred in its determination that service of the DC-27 upon Enslow at his residence did not comply with K.S.A. 1998 Supp. 8-1002(c).
Reversed and remanded with directions that judgment be entered in favor of the KDR. | [
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Pierron, J.:
Cheiyl L. Cobb, the mother of L.C., appeals the district court’s decision changing residential custody of L.C. to the father, Marck R. Cobb.
Marck and Cheryl were married in 1989 in Colorado. L.C., bom in 1990, was the only child of the marriage. The parties lived together for 15 months. Cheryl and L.C. moved to Wichita. Marck filed for divorce in Colorado. In 1992, Marck filed a petition under the Uniform Child Custody Jurisdiction Act in Sedgwick County District Court. The divorce action continued in Colorado while the custody issues were resolved in the Kansas courts. After an evidentiary hearing, Judge Richard Ballinger entered a joint custody order and awarded primary residential custody to Cheryl, with significant visitation given to Marck.
The issue of custody was addressed by the courts again in 1995, when Marck filed a motion requesting that the court change primary residential custody to him. Judge Ballinger denied Marck’s request.
Over the next couple of years, Marck filed several motions for change of primary residential custody — the most recent in 1998. He alleged that Cheryl had failed and refused to cooperate in the parenting of L.C., refused to provide medical information and the names of physicians who had seen L.C., refused to place L.C. on airplanes, and denied visitation and refused to make it up. The court granted an evidentiary hearing on the matter, and Judge Mark Vining presided over a 5 Vz-day trial.
Judge Vining granted Marck’s motion and awarded him residential custody of L.C. The judge entered an extensive ruling as to the factors he utilized. He addressed the length of time L.C. had been with Cheryl; the desire of both parents to be the residential custodian; L.C.’s wishes as to the residential parent; the interaction and interrelationship of L.C. with others; the medical issues; the adjustments on the part of L.C. that a change of custody would require; the physical health of L.C. and care by the parents; alleged child abuse; the lifestyle, living environment, and financial conditions of both parents; the moral fitness and mental health of both parents; the cooperation, or lack thereof, by the parents; L.C.’s mental health; the implications of Judge Ballinger’s 1995 custody ruling; and significant events since 1995. The court denied Cheryl’s motion for reconsideration.
The main issue on appeal is whether there was a material change of circumstances sufficient to justify a change in custody and whether that change was in the child’s best interests.
K.S.A. 1998 Supp. 60-1610(a)(2)(A) provides: “Subject to the provisions of the uniform child custody jurisdiction act (K.S.A. 38-1301 et seq., and amendments thereto), the court may change or modify any prior order of custody when a material change of circumstances is shown.”
A review of Kansas cases reveals that our courts have not been very specific as to what constitutes a material change in circumstances. However, the court in In re Marriage of Whipp, 265 Kan. 500, Syl. ¶¶ 1-4, 962 P.2d 1058 (1998), has recently provided guidance in this area:
“The paramount question for determining custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The district court must determine which parent will do a better job of rearing the children and provide a better home environment.”
“In order to insure that the interests of the children are fully protected from an adverse change of circumstances, K.S.A. 60-1610(a) vests the district court with continuing jurisdiction to modify a custody order. A decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. However, when facts and material circumstances change, custody may be changed.”
“A material change of circumstances is one that must be of a substantial and continuing nature to make the terms of the initial decree unreasonable.”
“As in all child custody cases, a district court’s decision should not be disturbed by an appellate court unless the district court has abused its discretion. Discretion is abused when no reasonable person would take the view adopted by the district court.”
Judge Vining found that a material change in circumstances had occurred because several situations had not been remedied since Judge Ballinger’s decision in 1995. Judge Vining found that at the time of the 1995 custody order, Cheryl “had created an atmosphere to make [L.C.] dependent on her which [Judge Ballinger] did not think was good, but went on to deny the motion for change of custody.” Judge Vining decided it was clear that Judge Ballinger was concerned with the father/son relationship between L.C. and Marck, that L.C. needed to spend more time with Marck, and that Judge Ballinger unsuccessfully attempted to create “a normal situation where [L.C.] was able to be with his father and to develop a normal, healthy environment with him.”
Judge Vining found “significant events” had occurred since Judge Ballinger’s order in 1995:
(1) In March 1996, Dr. Fremont saw L.C. and found that L.C. was still parroting bad things about Marck.
(2) In the spring of 1996, there was significant controversy regarding L.C.’s tonsillectomy and whether it was necessary.
(3) From October 1996 to August 1998, there were over 20 visits to medical treatment facilities, many of which were scheduled right before L.C.’s visitations with Marck.
(4) In April 1998, there were physical abuse allegations against Marck.
(5) In June 1998, another visit with Dr. Fremont showed that L.C. was still making general bad allegations about his father with out specifics tied to them which led Dr. Fremont to believe that L.C. was parroting or being influenced by some environment.
(6) On August 18, 1998, Dr. Bowman felt that L.C. was picking up bad things about Marck from the environment he was living in.
In finding a change in material circumstances, Judge Vining ruled:
“So clearly from that standpoint, things have not changed as Judge Ballinger thought they should or knew they should in order for this thing to resolve itself.
“Based upon those findings and those observations, it’s the Court’s finding that a material change in circumstances has been shown, and, ironically, it’s the fact that a material change of circumstances has not occurred that leads the Court to believe that circumstances have changed.”
Cheryl contends the court’s ruling revisited matters finally decided in connection with a previous motion to change custody. She argues that since the court found that a material change of circumstances had not occurred, the issue is resolved and the motion should have been denied.
The court clearly found that a material change in circumstances had occurred. Judge Vining was concerned that L.C. was in a dependent relationship with Cheryl and that a healthy father/son relationship did not exist between L.C. and Marck. These were the same concerns expressed by Judge Ballinger during the custody ruling in 1995. Judge Ballinger extended visitation in hope of resolving the problems. Judge Vining found that Judge Ballinger’s efforts had not remedied the situation. For the most part, Cheryl does not challenge Judge Vining’s finding that L.C. was in a dependent relationship with her or that a healthy father/son relationship did not exist between L.C. and Marck. Cheryl simply argues that it is unclear what “change” Judge Ballinger expected and that Judge Ballinger considered the 1995 order to not be open to reconsideration absent some “new” change in circumstances.
We believe the district court did not abuse its discretion in finding a material change in circumstances. The continued existence of a dependent relationship between L.C. and Cheryl and the nonexistence of a healthy father/son relationship between L.C. and Marck is substantial and continuing in nature and makes the continued residential custody by Cheryl unreasonable.
The failure or refusal of a residential parent to correct a significant problem in a child’s life can constitute a material change in circumstances. A child’s young and formative years are vital and dynamic. When time is of the essence, as it often is in the lives of children, a failure to adapt to the needs of the child changes the long-term prospects for the child. Under our statutes, this constitutes a change in circumstances.
Cheryl devotes a great deal of her brief to a complete review of the evidence. She claims the district court arbitrarily disregarded undisputed evidence that the best interests of the child would be served by the current custodial arrangement.
When reviewing an order involving the custody of children, certain basic principles guide our analysis. First and foremost, we are a court of law, not a court of fact. We are provided with a cold record of the proceedings in the district court. The trial court is in the best position to judge how the interests of the children may best be served. The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion. See Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978). Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court’s decision must be affirmed.
A reading of Judge Vining’s ruling indicates the court thoroughly considered the factors listed in K.S.A. 1998 Supp. 60-1610(a)(3)(B). Certain factors favored Cheiyl, while others favored Marck. The crux of Judge Vining’s decision to change custody was based on the finding that L.C. and Marck did not have a normal, healthy father/son relationship expected of an 8-year-old boy and his father.
Cheryl argues there was no evidence capable of supporting the determination that changing' custody would improve L.C.’s relationship with Marck, and that no professional opinions concluded there was an urgency to establish a father/son relationship. To the contrary, several witnesses, including Kim Kadel, Dr. Bowman, Dr. Freeman, and Dr. Bryant, stressed the need for a father/son relationship and the need for continuing contact in order to establish that relationship. Dr. Bowman also testified there is a “four or five year window” before adolescence arrives in which the father/son relationship has an opportunity to develop.
The court’s ruling on Cheryl’s motion to reconsider provides more insight into the lack of a normal, healthy father/son relationship. The court stated why it was in L.C.’s best interests to change custody:
(1) In order to create an atmosphere that would allow L.C. to make progress in his relationship with Marck, they needed to spend significant time together, and the court determined that a change of residential custody would be the best way to accomplish this result.
(2) It would be in L.C.’s best interest to be able to establish a positive and meaningful relationship with his father, “which is so necessaiy and so important, according to the psychologists, to develop.”
(3) There was a limited window of opportunity to make the necessary corrections in the father/son relationship; otherwise, it would not likely occur.
The court indicated it was not going to wait for Cheiyl to change. It was obvious there had not been the change in circumstances envisioned by Judge Ballinger to allow the same custodial arrangement. The court stated it was important for L.C. to have a meaningful relationship with both Cheryl and Marck, and the experts agreed that the father/son bond was not there. The environment provided by Cheryl was preventing such a bond. The court concluded:
“[I]f a relationship [between L.C. and Marck] is ever going to have a chance to succeed, changes must occur.
“We have a father who loves his son, who wants to have a relationship with him, who has been an active participant in the attempts to get visitation and meaningful time. He hasn’t been a father who sends his child support payment and has no contact. I’ve witnessed situations similar to this where the father walked away altogether. This is not the kind of father we have. He’s not perfect and I understand that he has flaws just like all of us do. And this change won’t happen without [its] ups and downs for the parties and for [L.C.], but it’s still the Court’s opinion it’s in [L.C.’s] best interests and the interest of society in general to have this change take place at this time. I think it’s the last best opportunity we have to allow a normal, healthy relationship to develop between [L.C.] and his father.”
There was no evidence L.C. was neglected or uncared-for by Marck in respect to L.C.’s allergies. The medical reports found L.C. to be a well-developed, well-nourished child with some minor medical problems. There was no credible evidence that Marck physically or emotionally abused L.C. The evidence indicated that L.C., now an 8-year-old, continued to sleep with Cheiyl on a regular basis, despite the opinions from psychologists that it should stop, and that L.C. has no problem sleeping by himself when he is with Marck.
The court acknowledged that any transfer of custody would entail a period of adjustment for L.C. to a new home, new school, and new friends. The court set forth extensive orders to help with the transition for L.C.
Cheryl would have us reweigh all the evidence and hold that it was in L.C.’s best interests to remain with her. We simply cannot do so. There were good reasons and sufficient evidence supporting Judge Vining’s decision. The court understood and applied the correct, controlling legal principles. We hold the district court did not abuse its discretion in changing primary residential custody to Marck.
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Lewis, J.:
Defendant was convicted of forgery and sentenced to a term of 16 months’ imprisonment. He appeals from his conviction and sentence.
The record shows that defendant went to a Dillons store, where he attempted to cash a check for $395.96. This check was payable to defendant and signed by David T. Mangione.
Apparently, the Dillons employees believed something was strange about defendant’s request because they called the originating bank for the checking account. Bank personnel advised them that the check which defendant was seeking to cash had been stolen and that no one by the name of David T. Mangione had the authority to sign or issue checks on that account. Upon being so advised, store security took defendant into custody and held him for the police.
Defendant made an inventive effort at explaining how he came into possession of the check. He claimed that his cousin had given it to him for doing work at a certain house for which he gave the address and described for the police. However, no one could locate his cousin, and the house he claimed to have worked on was securely boarded up.
Defendant raises several issues on appeal.
ALLEN INSTRUCTION
Defendant argues that instruction No. 2 was an improper Allen-type instruction which lowered the burden of proof and coerced the jury. See Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (1896). For a discussion of an Allen-type instruction, see State v. Whitaker, 255 Kan. 118, 126, 872 P.2d 278 (1994). Defendant did not object to this instruction at trial. Under our standard of review, defendant must show us that the failure to give the instruction was clearly erroneous. An instruction is clearly erroneous only if we are firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. See State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Defendant objects to that portion of instruction No. 2, which advised the juiy that “[a] juror is an officer of the Court and it is the duty of the jury to work out justice for the parties within the law and the evidence.” (Emphasis added.) It is the defendant’s argument that the phrase “to work out justice for the parties” implied a preponderance of the evidence for a lesser standard of proof for the State. We do not agree.
An instruction identical to the one involved in this case was considered by the Supreme Court in State v. Dias, 263 Kan. 331, 334-36, 949 P.2d 1093 (1997). The court, in that case, found that the instruction fairly stated the law. In an issue not raised in Dias, defendant argues that the instruction enabled the jury to ignore the requirement that the State prove the facts beyond a reasonable doubt.
We do not agree. Our task is to take the jury instructions as a whole and to determine whether they accurately state the law to the jury. See State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
When we consider the instructions as a whole, we conclude that there was no error in the Allen-type instruction given in this case. Juiy instruction No. 3 accurately set out the presumption of innocence and the requirement that the State prove the allegations beyond a reasonable doubt. The “to work out justice for the parties” phrase is qualified by “within the law and the evidence.” The jury was given an accurate instruction concerning the burden of proof, and there is no reason to assume that instruction No. 2 in any way diminished the requirement of the State to prove its case beyond a reasonable doubt.
Defendant’s argument is without merit in this regard.
PRESUMPTIONS
Defendant next argues that instruction No. 7 violated his due process rights. We agree.
Juiy instruction No. 6 set out the elements of forgeiy and followed PIK Crim. 3d 59.11. It instructed the juiy, among other things, as follows:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant issued or delivered a bank check which he knew had been made, altered or endorsed so that it appeared to have been made by David T. Mangione, a fictitious person;
“2. That the defendant did this act with the intent to defraud;...” (Emphasis added.)
Instruction No. 7 advised the juiy: “As to the allegation that David T. Mangione is a fictitious person, you may presume that David T. Mangione is a fictitious person. This presumption may be overcome by evidence to the contrary.” (Emphasis added.)
Defendant’s argument is that the presumption contained in instruction No. 7 shifted the burden of proof and relieved the State of its obligation to prove each and every element of the crime of forgery.
We agree. According to instruction No. 6, the fact that David T. Mangione is a fictitious person is an element of the crime of forgery. The presumption set forth in instruction No. 7 reheves the State of its burden of proving the elements of forgery and shifts the burden of proof to defendant.
We are not unaware of the provisions of K.S.A. 21-3710(c), which provides: “In any prosecution under this section, it may be alleged in the complaint or information that it is not knoum whether a purported person is real or fictitious, and in such case there shall be a rebuttable presumption that such purported person is fictitious.” (Emphasis added.) We do not consider the statute relevant in this case. First of all, neither party has relied on the statute in pursuing the trial of this case or the appeal thereof. The information filed in this case is not drawn in such a manner as to involve the statute. The information simply alleges that David T. Mangione is “either a real or fictitious person, and if real, without the authority of said David T. Mangione.” The information does not state that the State is unaware of whether David T. Mangione is real or fictitious.
It is a cornerstone of our judicial system that anyone charged with a crime is presumed to be innocent. The State is required to overcome that presumption by proving each and every element of the crime beyond a reasonable doubt. See State v. Harkness, 252 Kan. 510, 526, 847 P.2d 1191 (1993). In this case, pursuant to instruction No. 6, the State had the burden to show that “defendant issued or delivered a bank check which he knew had been made, altered or endorsed so that it appeared to have been made by David T. Mangione, a fictitious person.” There is no question that one of the elements of the crime was the fact that David T. Mangione was a fictitious person.
The State in oral argument candidly admitted that it had no evidence to show that David T. Mangione was a fictitious person and that none was offered at the trial. The proof of this particular fact was the burden of the State, and it failed to carry that burden by its own admission. Indeed, absent the presumption, defendant might very well have been entitled to a directed verdict of innocent by reason of the failure of the State’s burden of proof.
The issue we must resolve is whether instruction No. 7 allowing the jury to presume that David T. Mangione was a fictitious person is a valid statement of the law.
We conclude the instruction was erroneous, and it requires that we reverse defendant’s conviction.
There are two kinds of presumptions to consider in this context. One is a mandatory presumption which requires a jury to infer an element once the State has proven the predicate facts giving rise to the presumption. Harkness, 252 Kan. at 526.
There is also a permissive presumption or permissive inference. The language of the instruction in this case provided that the jury “may” presume David T. Mangione was a fictitious person, but it did not require that finding. In Francis v. Franklin, 471 U.S. 307, 314, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985), the Supreme Court, contrasting a mandatory and a permissive presumption, said that a permissive inference “suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.”
Instruction No. 7 appears to be more permissive than mandatory. However, the instruction did not require the State to prove any predicate facts in order to raise the presumption. It also failed to advise the jury that the burden of proof remained on the State. The instruction in front of the Supreme Court in Harkness was approved because it required the State to prove predicate facts and because it specifically advised the jury that the burden of proof remained on the State. See Harkness, 252 Kan. at 524-27. In addition, we do not believe the facts at issue in Harkness are dispositive of the facts in the instant matter.
We also conclude that instruction No. 7 was ambiguous. It leaves the very clear inference that a jury may, without any evidence what soever, presume one of the elements of the crime. This inference is strengthened by the fact that the instruction immediately given before No. 7 was instruction No. 6, the issues instruction which set out the elements the State was required to prove. In reviewing an instruction such as this, we must determine whether “ ‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72, 116 L. Ed. 2d 385,112 S. Ct. 475 (1991) (quoting Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 [1990]).
We have concluded there was a reasonable likelihood that the jury applied the presumption in this case in a way that violated defendant’s due process rights.
An evidentiary presumption in a jury instruction deprives a defendant of due process when it effectively reheves the State of its burden of proof. Harkness, 252 Kan. at 526. We conclude that instruction No. 7 did reheve the State of its burden of proving that David T. Mangione was a fictitious person and also deprived defendant of his due process rights. As we pointed out earlier, the State admitted no evidence of any kind to show whether David T. Mangione was real or fictitious. That element of the crime was proven by a presumption. Defendant’s conviction cannot stand in the face of this violation of due process. Defendant’s conviction is reversed and the matter is remanded for a new trial.
The balance of the issues in this case are rendered moot by our decision to .reverse defendant’s conviction. However, we take note of the fact that in sentencing defendant, the trial court departed from the presumptive sentence without giving notice to either party. We wish to be certain this error is not duplicated if defendant is retried and convicted on remand. The statutes clearly require the court to notify all parties of its intent to depart and to allow reasonable time for either party to respond. See K.S.A. 21-4718(b). That statute was violated in this case, and had we considered this issue on the merits, we would have been required to vacate defendant’s sentence.
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Davis, J.:
This is a direct criminal appeal by Armand Little of his convictions for one count of aggravated kidnapping, two counts of kidnapping, and one count each of aggravated robbery, aggravated burglary against a residence, and criminal possession of a firearm. He contends that the following trial errors require reversal: (1) failure to instruct on criminal restraint as a lesser included offense of aggravated kidnapping and kidnapping; (2) insufficient evidence to support the charge of aggravated kidnapping and kidnapping; (3) failure of the trial court to give a requested instruction defining facilitation in connection with the aggravated kidnapping and kidnapping charges; and (4) allowing the jury to convict on a charge of aggravated robbery with added language contraiy to language in the formal complaint charging the offense of aggravated robbery. We conclude that no reversible error occurred and affirm.
The charges arise in connection with an incident occurring in Salina on January 19, 1997. Four individuals, including the defendant, entered into a residence. Debra Edwards, one of the participants, testified regarding the incident.
Edwards testified that the defendant was at her house in Wichita along with Anthony Parker, Edwards’ boyfriend. The defendant suggested that the three of them drive to Salina to see Sandra Thompson, the defendant’s girlfriend, and also to collect on a drug debt owed to the defendant by Larry Burse. After picking up Thompson, they all drove to Burse’s residence, which Burse shared with his wife, Patricia Veal, and their two children, J.C.V. and J.D.V. According to Edwards, the group discussed the fact that Burse would probably not allow the defendant or Parker into his house because of the drug debt. They decided that Edwards would go to the door and pretend to be a community corrections officer, as Burse was subject to community corrections supervision.
Patricia Veal testified that she and her two children were watching television when Edwards knocked on the door, identified herself as a community corrections officer, and asked for Burse. Veal informed Edwards that Burse was not at home. Edwards then asked to use the telephone on the pretext of calling the community corrections office. Veal let Edwards in and told her where the telephone was located. Veal returned to the living room and two men dressed in dark clothing and wearing knit stocking masks came into the house. One of them was carrying a gun. The men yelled for the children to get into the bathroom, and Veal heard the door shut. One of the men put his arm around Veal’s neck and pushed her into the bedroom. The other man began ransacking the bedroom and asked her where the money and jewelry were kept. They then pushed her back on the bed and duct-taped her hands, feet, and eyelids. At some point, one of the men struck her in the head with the gun, causing two wounds which required sutures. Veal told the men there was money in the pocket of a red jacket in the closet. The men then moved her to the floor, and the duct tape came off her eyelids. The men then wrapped a t-shirt nightgown around her head.
At one point, one of the men went into the bathroom and told the children not to look at him. He duct-taped the children’s hands behind their backs. He then ordered the children into the bathtub and closed the shower behind them. The men left the residence taking approximately $3000 in cash, jewelry, a video camera, and a small safe.
After the men left, Veal was able to free herself and the children from the duct tape and called her husband at work to tell him what happened. She also called the police. The defendant and the other participants were soon apprehended, and the stolen items were recovered.
At an instructions conference during the course of the trial, the defendant asked the trial court to give an instruction defining the term “facilitation” for the purpose of the aggravated kidnapping and kidnapping charges. The court refused to do so. The defendant also asked the trial court to instruct the jury on criminal restraint as a lesser included offense of aggravated kidnapping and kidnap-. ping. The court denied the request, stating that criminal restraint was not a lesser included offense of kidnapping.
During deliberations, the juiy asked the court whether the instruction on aggravated robbery, which stated as one of the elements that the defendant intentionally took property from the “person of Patricia Veal, J.C.V. and J.D.V.” required that the property be taken directly from the children. The trial court informed the parties that the instruction, which was taken from language in the State’s complaint, was in error because it left out “or presence” and included the children. The court, without objection, modified the instruction, stating also that the complaint was being modified to conform to the evidence by inserting the phrase “or presence” and taking out the children’s names.
Trial Court’s Refusal to Instruct On Criminal Restraint As a Lesser Included Offense of Aggravated Kidnapping and Kidnapping
K.S.A. 21-3107(3) requires the trial court to instruct the juiy not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995). A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a juiy verdict in accord with the defendant’s theory; (2) the evidence at trial does not exclude a theoiy of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997). An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict the defendant of the lesser offense. State v. Robinson, 261 Kan. 865, Syl. ¶ 7, 934 P.2d 38 (1997).
K.S.A. 21-3107(2) provides that a lesser included offense may be:
“(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
Criminal restraint as defined by Kansas law is ordinarily a lesser included offense of aggravated kidnapping and kidnapping. State v. Ponds and Garrett, 218 Kan. 416, 420, 543 P.2d 967 (1975). See State v. Lile, 237 Kan. 210, 213, 699 P.2d 456 (1985); State v. Carter, 232 Kan 124, 126, 652 P.2d 694 (1982). Thus, the trial court’s refusal to instruct on criminal restraint based on its determination that it was not a lesser included offense of kidnapping was in error. However, the question remains as to whether under the evidence the defendant could reasonably have been convicted of criminal restraint.
The defendant was charged with aggravated kidnapping and kidnapping. The aggravated kidnapping and two kidnapping charges were based on his action in confining Veal and her two children “with the intent to hold such person(s) or to facilitate flight or the commission of any crime.” There is no question the defendant confined the victims in the course of committing robbery. However, both aggravated kidnapping and kidnapping require that the kidnapping “facilitate” the crime. See K.S.A. 21-3420; K.S.A. 21-3421.
In State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), the Kansas Supreme Court held that where a taking or confinement is alleged to have been done to facilitate the commission of another crime, the resulting movement or confinement:
“(a) Must not be slight, inconsequential or 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 tire other crime substantially easier of commission or substantially lessens the risk of detection.”
The court also gave examples of the type of conduct which would constitute kidnapping:
“A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.” 219 Kan. at 216.
In this case, the defendant moved Veal and the children to different rooms and bound them with duct tape. This conduct clearly goes beyond that which is merely incidental to or inherent in the crime of robbeiy. Had the defendant merely ordered the Veals to separate rooms and told them to stay there, there might have been some question that an instruction on criminal restraint would have been required. However, under the circumstances in this case, the binding of the victim was clearly done in order to facilitate the crime of robbery, and the defendant could not have been reasonably convicted of criminal restraint. Thus, the trial court had no duty to instruct on the lesser included offense of criminal restraint.
The defendant argues that in determining whether kidnapping occurred, some consideration should be given to the fact that he did not do a very good job of binding the hands of the victim in that Veal was able to quickly escape from her bonds. In support of this argument, the defendant relies on State v. Crane, 260 Kan. 208, 233-34, 918 P.2d 1256 (1996). In Crane, the assailant moved the victim throughout a video store while sexually assaulting her. He was convicted of kidnapping to facilitate the crime because he was attempting to move her into the back room. The court, however, found insufficient evidence of kidnapping, noting that the only evidence that the assailant was attempting to move the victim to the back room was an assumption by the victim. In any event, the assailant did not succeed. 260 Kan. at 233-34.
Crane provides little if any support for the defendant in this case. Here, the defendant did actually succeed in restraining the victims. While he may have been somewhat inept, there certainly was no question as to the defendant’s intent. We conclude, based on the circumstances of this case, that the trial court was under no obligation to instruct the jury on the lesser included offense of criminal restraint.
Sufficiency of Evidence Regarding Aggravated Kidnapping and Kidnapping
The defendant contends the evidence was insufficient to convict him of aggravating kidnapping and kidnapping. His argument is based solely on the contention that under State v. Buggs, the con finement of the victim was inconsequential to or inherent in the nature of the crime of robbery. The argument the defendant makes has already been discussed above and is found wanting.
The evidence in this case demonstrated that during the course of the robbery, the defendant forced Veal and her children into separate rooms, bound them, and left them there. Under these circumstances, a rational factfinder could have concluded beyond a reasonable doubt that the defendant committed both kidnapping and aggravated kidnapping.
Refusal to Give the Requested Instruction Defining Facilitation of a Crime
During the instructions conference, the defendant requested the court to instruct the jury using language from State v. Fisher, 257 Kan. 65, 891 P.2d 1065 (1995):
“If a taking or confining of any person is alleged to have been done to facilitate the commission of another crime, to be kidnapping under K.S.A. 21-3420 the resulting taking or confinement:
(a) must not be slight, inconsequential, and merely incidental to the other crime;
(b) must not be of a kind inherent in the nature of the other crime; and
(c) must have some significance independent of the other crime in that it makes die other crime substantially easier of commission or substantially lessens the risk of detection.” Syl. ¶ 5.
“The word ‘facilitate’ in K.S.A. 21-3420 means something more than just to make it more convenient. A taking or confining of any person, in order to be said to facilitate a crime, must have some significant bearing on making the commission of the crime easier or lessening the risk of detection.” Syl. ¶ 4.
The trial court refused to give the above instructions, concluding that quoted language from the above cases sets forth a standard of review for an appellate court in determining whether the crime of kidnapping or aggravated kidnapping had occurred. The trial court has discretion in giving instructions to the juiy. State v. Johnson, 255 Kan. 252, 256, 874 P.2d 623 (1994). On appeal, the instructions of a trial court should be approved if, after being considered in their entirety, the instructions properly and fairly state the law as applied to the facts. 255 Kan. at 256. Applying this standard, we must conclude that the instructions in their entirety in this case properly and fairly state the law as applied to the facts.
The defendant argues that the word “facilitate” as used in the aggravated kidnapping and kidnapping instructions is vague and confusing for the jury and requires further definition. PIK Crim. 3d does not include a definition for the term “facilitate.” In support of his contention that a definition is required, the defendant cites a number of cases where appellate courts have found insufficient evidence that the restraint or movement in question facilitated the crime and could constitute kidnapping: Messer v. Roberts, 74 F.3d 1009, 1014 (10th Cir. 1996) (applying Kansas law); State v. Fisher, 257 Kan. at 74; State v. Hays, 256 Kan. 48, 62, 883 P.2d 1093 (1994); State v. Ransom, 239 Kan. 594, 602-03, 722 P.2d 540 (1986); State v. Moffitt, 199 Kan. 514, 525-26, 431 P.2d 879 (1967).
The defendant’s point is well taken. Here, the defendant requested an instruction consistent with Kansas law which would have aided the jury in its determination of whether the crime of kidnapping or aggravated kidnapping had occurred. However, there are no appellate decisions in Kansas which have required that such a definition be given, and the Pattern Instructions for Kansas do not provide an instruction for the definition of “facilitate.” Such an'instruction would be advisable in any situation where the question of whether the restraint or movement facilitated the crime is at issue. However, we conclude that while it would have been entirely appropriate for the trial court to give the jury the instruction requested by the defendant, the absence of such an instruction under the specific facts of this case does not require reversal. In this case, the conduct of the defendant clearly went beyond that which was incidental to or inherent in the crime. The overwhelming evidence of guilt and the fact that the instructions given accurately state the law require us to affirm.
Allowing the Jury to Convict the Defendant of Aggravated Robbery Where the Instruction and the Formal Complaint Contained Different Language
The defendant’s final argument is that the trial court erred in allowing the jury to convict him of aggravated robbery. He contends that there was not sufficient evidence to convict him of taking property from the “person of Veal, J.C.V. [and] J.D.V.” as charged in the complaint.
Although the defendant couches this argument as one regarding the sufficiency of the evidence, it is not. Rather, the defendant is actually complaining that the court erroneously amended the complaint to conform to the evidence during the jury’s deliberation in response to the jury’s question.
The defendant was charged by amended complaint with taking property from the persons of Veal, J.C.V., and J.D.V. The trial court, in instructing the jury on aggravated robbery, used an instruction which followed the language of the amended complaint rather than the language in PIK Crim. 3d. During deliberations, the jury asked the court whether the instruction on aggravated robbery required that the property be taken directly from the children. The trial court, realizing its mistake, informed the parties that the instruction, taken from the State’s complaint, was in error because it left out “or presence” and included the children’s names. The court, without objection, modified the instruction, stating also that the complaint was being modified to conform to the evidence by inserting tire phrase “or presence” and taking out the children’s names.
K.S.A. 22-3201(e) allows a court to permit a complaint or information to be amended at any time before a verdict or finding if no additional or different crime is charged and if the substantial rights of the defendant are not prejudiced. Because the defendant did not object to the amendment by the court, he may not now complain of the effect of the amendment on appeal. See State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998) (holding that an issue not presented to the trial court will not be considered on appeal). Further, the defendant’s failure to object and specify how the amendment would prejudice him prevents this court from finding that the trial court erred in allowing the amendment.
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Standridge, J.:
Barry P. Fillman was convicted of two counts of aggravated assault and one count of aggravated battery. This is his direct appeal.
Facts
On January 3,2007, pursuant to an amended complaint, Fillman was charged, inter alia, with committing two counts of aggravated assault and one count of aggravated battery. These charges were based on an incident taking place at Tammy Gannon’s apartment on September 28, 2006, where Fillman fired a .22 caliber rifle at Gannon three times, hitting her once and intentionally missing her twice. On October 2, 2006, police arrested Fillman. During the arrest, police discovered that Fillman possessed two flasks containing explosive powder and protruding fuses, a tin can that was shaped like a hockey puck and wrapped in blue tape with a protruding fuse, a bag of .22 caliber ammunition, and a .22 caliber rifle. See United States v. Fillman, 2009 WL 1164731 (10th Cir. 2009) (unpublished opinion).
Prior to his jury trial on the aggravated assault and aggravated battery charges, Fillman was charged and convicted in the United States District Court for the District of Kansas of two counts of possessing an unregistered destructive device and three counts of being a felon in possession of a firearm and ammunition (found on him and used at Gannon’s apartment). Each of the five counts for which he was convicted carried a maximum statutory sentence of 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2) (2006); 26 U.S.C. § 5871 (2006).
Fillman’s presentence investigation report reflected that his total offense level under the federal sentencing guidelines was 38 and that his criminal history category was III, making the advisory federal sentencing guideline range 292 to 365 months’ imprisonment. In calculating the offense level, the pretrial services officer assigned to Fillman’s case took into account that Fillman unlawfully possessed the firearm in conjunction with an aggravated assault and aggravated battery upon Gannon. Pursuant to the United States Sentencing Commission Guidelines Manual (USSG) § 2K2.1(b)(6) (2003), these attenuating circumstances added four levels to the total offense level. See 18 U.S.C. § 3553 (2006). On July 23, 2007, Fillman was sentenced to a controlling term of 292 months’ imprisonment. His convictions and sentence were later affirmed on appeal. See Fillman, 2009 WL 1164731.
After he received his federal sentence, Fillman filed a motion in district court to dismiss the state charges of aggravated assault and aggravated battery pending against him. In support of this motion, Fillman maintained he already had been prosecuted for these particular crimes when the federal court relied on them to enhance his total offense level at sentencing. Based on these facts, Fillman argued that K.S.A. 21-3108(3)(a) prohibited the State from prosecuting him. The district court denied Fillman’s motion, holding that because the elements of the federal crimes and state crimes were different, K.S.A. 21-3108(3)(a) did not bar the State from pursuing its case against Fillman.
A jury ultimately convicted Fillman of two counts of aggravated assault, K.S.A. 21-3410(a), and one count of aggravated battery, K.S.A. 21-3414(a)(2)(B). Fillman filed a motion for a new trial, within which he again raised his argument that K.S.A. 21-3108(3) (a) prohibited the State from prosecuting him. The district court denied the motion and sentenced Fillman to a controlling 29-month prison sentence. The district court ordered Fillman’s state sentence to run concurrent with his federal sentence.
Analysis
Fillman raises three points of error on appeal: (1) The district court erred in fading to dismiss the aggravated assault and aggravated battery charges against him based on tire previous prosecution in federal court; (2) the two convictions of aggravated assault upon Gannon were multiplicitous; and (3) the district court erred in sentencing him to a higher sentence based on a criminal history that was not proved to the jury beyond a reasonable doubt. We address each of these points in turn.
I. Previous Prosecution
Relying on K.S.A. 21-3108(3)(a), Fdlman argues the district court erred when it did not dismiss the aggravated assault and aggravated battery charges against him based on the previous prosecution in federal court. Whether the district court erred in applying K.S.A. 21-3108(3)(a) to the facts of this case raises a question of law subject to unlimited review. See State v. Schroeder, 279 Kan. 104, 108, 105 P.3d 1237 (2005).
As a preliminary matter, we note that Fillman relies exclusively on K.S.A. 21-3108(3)(a) and not on the federal or state constitutional guarantees against double jeopardy to support his argument on this particular issue. To that end, we find it helpful to distinguish between the two concepts before addressing Fillman’s argument.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. See, e.g., State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 [1969], overruled on other grounds Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 [1989]). The Kansas Supreme Court has.recognized that the language of the Fifth Amendment to the United States Constitution guarantees no greater double jeopardy protection to an accused than does § 10 of the Kansas Constitution Bill of Rights; in other words, the provisions are coextensive. See Schoonover, 281 Kan. at 474; State v. Thompkins, 271 Kan. 324, 336, 21 P.3d 997 (2001); State v. Williams, 268 Kan. 1, 6, 988 P.2d 722 (1999).
Notably, the United States Supreme Court has determined that the Fifth Amendment prohibition against double jeopardy does not apply to prosecutions for the same crime by separate sovereignties. See Heath v. Alabama, 474 U.S. 82, 87-89, 88 L. Ed. 2d 387, 106 S. Ct. 433 (1985). With that said, the Kansas Legislature enacted a statute specifically prohibiting federal and state prosecutions for the same crime under certain circumstances. See K.S.A. 21-3108(3). That statute states, in pertinent part;
“A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state or in the municipal court of any city of this state for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began.” (Emphasis added.) K.S.A. 21-3108(3)(a).
To determine whether K.S.A. 21-3108(3)(a) prevents the State from pursuing charges against a defendant who previously has been prosecuted by the federal government, our Supreme Court has stated that where one statute describing an offense requires factual elements that another statute does not, “then the offenses are not the same, and a conviction or acquittal under one does not bar prosecution under the other on the ground of double jeopardy.” State v. Worth, 217 Kan. 393, 398, 537 P.2d 191 (1975).
In Worth, the defendant previously was convicted in federal court of unlawful possession of a firearm, unlawful transfer of a firearm, unlawfully making a false statement in the purchase of explosives, and unlawfully receiving an explosive that had been transported in interstate commerce. The defendant subsequently was charged and convicted in state court for the sale of cocaine arising from the same underlying incident. The defendant argued on appeal that K.S.A. 21-3108(3)(a) prevented the State from pursuing its case against him because of his previous convictions in federal court. Our Supreme Court rejected the defendant’s argument, noting that the federal charges required factual elements not required in the state charges and vice versa. The court held that K.S.A. 21-3108(3)(a) did not prevent the State from prosecuting the defendant for selling cocaine. 217 Kan. at 397-98.
The State contends Worth is precisely on point with the facts presented in this case. Specifically, the State points out that Fill-man was convicted in federal court of two counts of possessing an unregistered destructive device and three counts of being a felon in possession of a firearm and ammunition. The State further points out that Fillman was charged in state court with aggravated assault, which is defined as using a deadly weapon to intentionally place another person in reasonable apprehension of immediate bodily harm, and aggravated battery, which is defined as intentionally causing great bodily harm to another person or disfigurement of another person. The State concludes that, just like the facts in Worth, the federal prosecution of Fillman required factual elements to be proved that were not required in his state prosecution, and his state prosecution required factual elements to be proved that were not required in his federal prosecution.
Fillman acknowledges both the analysis and holding in Worth, Nevertheless, Fillman maintains that when his aggravated assault and aggravated battery charges were used by the federal court to enhance the base offense level for purposes of sentencing, those crimes became facts constituting the elements of his firearm convictions in the federal prosecution. We disagree.
The United States Supreme Court has held that the facts constituting the elements of a crime are those that increase the maximum punishment to which the defendant is exposed under governing law. See Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The Court’s holding was based on simple deductive reasoning. A crime is defined as conduct that is punishable by the State. Conduct is punishable by the State when it exposes the individual to new or additional penalties. Therefore, any conduct that increases the maximum punishment to which he or she is otherwise exposed must be deemed a crime. The predicate facts of such conduct constitute the “ ‘elements’ ” of the “crime.” Apprendi, 530 U.S. at 483 n.10 (citing Jones v. United States, 526 U.S. 227, 244-48, 143 L. Ed. 2d 311, 119 S. Ct. 1215 [1999]); see also Apprendi, 530 U.S. at 500-01 (Thomas, J., concurring).
Based on these principles, the relevant inquiry (to determine if facts supporting enhancement of a base level offense constitute elements of a crime) is whether those facts expose the defendant to a greater punishment than the maximum punishment authorized by the jury’s guilty verdict. Where the facts relevant to the enhancement do not have the effect of increasing tire maximum punishment to which the defendant is exposed, the facts do not constitute elements of a crime under the Apprendi rationale.
In order to determine the maximum punishment to which Fill-man was exposed as a result of his federal convictions, we turn to the case of United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). In Booker, the United States Supreme Court held that the maximum punishments set forth in the federal sentencing guidelines were no longer mandatory, but only advisory; thus, courts would now be required to look to the United States Code to determine the maximum punishment for a particular crime. See 543 U.S. at 246-68. Applying the holding in Booker here, then, aggravated assault and aggravated battery did not become necessary elements of the federal convictions against Fillman unless the maximum punishment to which Fillman was exposed as a result of his federal convictions exceeded the maximum statutory sentence set forth in the United States Code.
At this point, we find a brief review of both the facts and the holding in Booker instructive. Booker was arrested after police officers found 92.5 grams of crack cocaine in his duffle bag. He later gave a written statement to the police in which he admitted to selling an additional 566 grams of crack cocaine. A jury ultimately found Booker guilty of possessing with an intent to distribute at least 50 grams of crack cocaine. 21 U.S.C. § 841(b)(l)(A)(iii) provided for a statutory minimum sentence of 10 years in prison with a maximum sentence of life.
Notwithstanding the sentencing range set forth in the statute, federal judges at that time were required to impose punishment within the range of sentences set forth in the federal sentencing guidelines. In calculating the applicable range of sentences, the guidelines take into account both the seriousness of the offense and the offender’s criminal history. Each type of crime is assigned a base offense level, which is the starting point for determining the seriousness of a particular offense. In addition to base offense levels, each offense type typically carries with it a number of specific offense characteristics. These characteristics vary from offense to offense and work to increase or decrease the base offense level and, ultimately, the sentence an offender receives.
At Booker’s sentencing, the judge found by a preponderance of the evidence that (1) Booker distributed 566 grams over and above the 92.5 grams that the jury had to have found in order to return a guilty verdict and (2) Booker had obstructed justice. Under the mandatory federal sentencing guidelines, this factual finding by the judge increased Booker’s base offense level from 32 to 36, which increased his sentence from a maximum of 262 months (21 years, 10 months) to a range of 30 years to life.
Booker appealed, arguing the federal sentencing guidelines violated his right to a jury trial. More specifically, Booker alleged that the guidelines required an increase in his base offense level and thus an enhancement in the sentencing range, based on facts determined by a sentencing judge rather than a jury. In a comprehensive two-part opinion, the United States Supreme Court agreed with Booker. In the first part of the opinion, the Court held that it was unconstitutional to use any fact to enhance a base offense level, and thus the sentencing range, under the federal sentencing guidelines unless that fact was proven to a juiy beyond a reasonable doubt. In the second part of the opinion, the Court provided a remedy for these unconstitutional enhancements by deeming the federal sentencing guidelines to be advisory in nature, as opposed to mandatory. See 543 U.S. at 245-68.
The fact that the federal sentencing guidelines are now only advisory means that the maximum punishment to which a defendant is exposed under governing law is no longer the high number in the base sentencing range under the guidelines. Instead, the maximum punishment to which a defendant is exposed is now the maximum sentence prescribed in the applicable section of the United States Code.
In Fillman’s case, die federal court’s consideration of aggravated assault and aggravated battery resulted in an increased sentence of 292 months’ imprisonment under the advisory federal sentencing guidelines. Notably, however, the 292 months imposed did not exceed the maximum statutory sentence of 50-years’ imprisonment prescribed by the applicable section of the United States Code. See 18 U.S.C. § 924(a)(2); 26 U.S.C. § 5871 (establishing that each of die five counts for which Fillman was convicted carried maximum statutory sentence of 10 years’ imprisonment, making maximum sentence 50 years).
Because the 292-month federal sentence did not exceed the maximum statutory sentence of 50 years’ imprisonment, aggravated assault and aggravated battery did not become necessary elements of the federal convictions. See Apprendi, 530 U.S. at 490 (facts constituting elements of crime are those that increase maximum punishment to which defendant is exposed under governing law). Because aggravated assault and aggravated battery did not become necessaiy elements of the federal convictions, the federal prosecution required factual elements not required in the state prosecution and vice versa. As such, K.S.A. 21-3108(3)(a) does not bar a subsequent prosecution against Fillman for aggravated assault and aggravated battery in state court. See K.S.A. 21-3108(3)(a) (prosecution barred if defendant formerly prosecuted in federal court, federal prosecution resulted in conviction, and state prosecution is for same conduct, “unless each prosecution requires proof of a fact not required in the other prosecution”).
II. Multiplicity
Fillman argues that his two convictions for aggravated assault upon Gannon were multiplicitous. Fillman acknowledges he did not raise the multiplicity issue at trial. Nonetheless, he properly notes that our appellate courts consider multiplicity issues raised for the first time on appeal to serve the ends of justice or to prevent a denial of a fundamental right. See, e.g., State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 (2006). Whether convictions are multiplicitous is a question of law subject to unlimited review. Schoonover, 281 Kan. at 462.
Multiplicity is the charging of a single offense in several counts of a complaint or information. Multiplicitous charges create a potential for multiple punishments for one single offense. Such multiple punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Conway, 284 Kan. 37, 54, 159 P.3d 917 (2007).
In Schoonover, our Supreme Court established an analytical framework for determining multiplicity issues. The court stated:
“In analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one? Under the first component, if the conduct is discrete, i. e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation. If the charges arise from the same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense. Under the second component, it must be determined whether the convictions arise from a single statute or from multiple statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute, the unit of prosecution test is applied. If the double jeopardy issue arises from multiple convictions of different statutes, in other words it is a multiple description issue, the same-elements test is applied.” (Emphasis added.) 281 Kan. 453, Syl. ¶ 15.
With regard to the first issue, the parties dispute whether the course of conduct supporting Fillman s two convictions for aggravated assault were part of the same act or were separate actions.
Schoonover identified four factors to be considered in resolving this dispute:
“(1) [Wjhether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. at 497.
In order to properly consider these factors, we find it necessary to review the evidence presented at trial to support the two counts of aggravated assault. Highly summarized, the evidence presented at trial establishes that Fillman brought a pistol inside Gannon’s apartment and placed it underneath her couch in her living room. Fillman then went to sleep in Gannon’s bedroom. Gannon found Fillman’s pistol under her couch and hid the pistol in her purse. She then woke up Fillman and told him that he needed to leave. While he was gathering up his things, Fillman looked underneath the couch and discovered that his gun was no longer there. Fillman asked Gannon where the gun was, and Gannon acted like she did not know what he was talking about. Fillman eventually walked out to his vehicle where he got a .22 rifle, walked back into the apartment, and then resumed asking Gannon what happened to his pistol. According to Fillman, while questioning Gannon, he fired a shot at a wall inside the apartment to “get her attention” because he thought Gannon was reaching inside the purse to grab the pistol. Then, 10 minutes later, he fired another shot at the wall when he thought Gannon was reaching for the pistol a second time. Gannon’s son, who was inside the apartment at the time of the incident, also stated that the shots were separated by about 10 minutes.
Applying the Schoonover factors to these facts, we find two separate acts occurred inside Gannon’s apartment. As to the first factor, the two shots fired into the wall were 10 minutes apart. Given there was no other conduct supporting a charge of assault between the first and second shot, we do not believe the evidence clearly establishes one way or the other whether the conduct occurred at or near the same time. As to the second factor, however, the facts establish that the two shots fired into the wall occurred at the same location.
As to the third and fourth factors, we find that there was an intervening event between the first and second shot and that there was a fresh impulse which motivated the second shot into the wall. More specifically, the evidence demonstrates that Fillman fired the first shot into the wall when he believed Gannon was reaching for the pistol. A 10-minute period of time passed and then, according to Fillman, Gannon allegedly reached for the pistol a second time. These facts support a finding that there was a fresh impulse motivating Fillman for each of the two times he shot into the wall— Fillman’s belief that Gannon was reaching for a pistol on two separate occasions 10 minutes apart.
In balancing the four Schoonover factors, we conclude Fillman’s two convictions of aggravated assault did not arise from the same conduct; thus, his convictions were not multiplicitous. See also State v. Hawkins, 40 Kan. App. 2d 10, 17-18, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009) (defendant’s convictions of aggravated assault and aggravated assault of law enforcement officer were not multiplicitous despite fact that both crimes involved same victim; defendant shot at victim prior to victim identifying himself as police officer; defendant later acted like he was going to shoot at victim while victim gave chase and identified himself as police officer).
III. Criminal History
Finally, Fillman contends the district court erred in sentencing him to a higher sentence based on a criminal history that was not proved to a jury beyond a reasonable doubt. Fillman concedes that our Supreme Court has rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Because our Supreme Court has consistendy followed its position in Ivory, this court is unable to grant Fillman relief on this issue. See State v. Brinklow, 288 Kan. 39, Syl. ¶ 10, 200 P.3d 1225 (2009).
Affirmed.
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Hill, J.:
In this appeal, we affirm the Workers Compensation Board’s award of permanent total disability benefits to Steven M. Conrow. Conrow’s former employer, Globe Engineering Co., Inc., and its insurer argue against the award, contending the evidence is insufficient to support the Board’s finding that Conrow was unemployable. Looking at the record as a whole, including the evidence that detracts from the Board’s findings, we hold that substantial competent evidence supports the Board’s conclusion that Conrow was realistically unemployable since he can no longer work with his hands and arms. We do not consider the employer’s contention that Conrow was not entitled to benefits because he did not have both arms amputated because Globe did not raise that issue before the Board.
Conrow’s work history is steady.
Beginning in 1979, Conrow worked for Globe in the “bum shop” where he used vibrating tools. After a few years he began to experience numbness in his hands and shoulders. His fingers started to hurt and tingle. Conrow continued to work for Globe until his discharge in November 2005. After that, Conrow worked at G&D Metals.
Immediately following his discharge from Globe, Conrow sought workers compensation benefits in November 2005. Conrow claimed he suffered injury or disease due to the repetitive use of the vibrating tools. The administrative law judge agreed, holding Conrow was entitled to compensation for scheduled injuries to his left and right forearms and his left and right arms. Later, this award was affirmed by the Board in 2007.
But Conrow’s condition worsened. Conrow suffers from a congenital defect of his joints known as arthrogryposis. He then sought a review and modification of his workers compensation award. This time Conrow argued he suffers from a permanent total disability since he lost his job at G&D Metals because he was no longer physically capable of performing his assigned tasks. Further, he alleged that despite an active job search, he was never offered a job.
Despite vigorous opposition by Globe, the administrative law judge concluded that Conrow was realistically unemployable “and therefore permanently and totally disabled.” Globe appealed the matter, and the Board upheld the award. The Board decided that Conrow was entitled to permanent total disability benefits for three reasons.
First, Conrow had proved a change of condition or circumstance to the extent that a modification of his award was permitted. Second, Conrow proved he had suffered injuries to both upper extremities which results in a presumption of permanent total disa bility. Third, Globe never rebutted this presumption of total disability. Simply put, Conrow was “essentially and realistically unemployable.” It is from this award that Globe appeals.
We recite our standard of review.
With the statutory changes made in 2009, our standard of review on cases arising from agencies when considering questions that must be decided “in light of the record as a whole” has been modified. See K.S.A. 2009 Supp. 77-621(c)(7), (d). Under the Kansas Judicial Review Act, this court must now take into account all of the relevant evidence that detracts from a finding as well as the evidence that supports a finding when deciding if a finding is supported by substantial competent evidence. See K.S.A. 2009 Supp. 77-621(d); Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, Syl. ¶¶ 1 and 3, 212 P.3d 239 (2009). Simply put, we look now at all of the evidence when we examine tire Board’s findings.
Additionally, we must now consider any explanation the Board may give on why the Board disregards any “determination of veracity” that may have been made by the administrative law judge who had the opportunity to personally observe the demeanor of any witness. Unchanged in our review is the rule that we will not reweigh the evidence, nor will we perform a de novo review. See K.S.A. 2009 Supp. 77-621(d); Herrera-Gallegos, 42 Kan. App. 2d 360, Syl. ¶¶ 2-3.
Conrow’s testimony that he felt he could work does not destroy the Board’s finding that he was unemployable.
The only issue Globe properly preserved for appeal is whether the Board arbitrarily ignored Conrow’s testimony drat he believed he was able to work and wanted a job. Further, Globe contends no evidence contradicts Conrow’s statements. We believe that Globe confuses the Board’s weighing of Conrow’s testimony with the testimony of others as ignoring evidence. Globe is incorrect.
Indeed, Conrow testified he worked for G&D Metals in March 2006. Conrow explained that he left G&D Metals because it “ran out of work” that he could do. Conrow stated he applied for employment at 220-230 places after December 2007. No one offered him a job. Conrow knew of no open and available job that he could do. Conrow stated that if he had his choice, he would be working. Conrow agreed he was ready, willing, and able to be employed and had to find “the right fit” with his arthrogryposis. Conrow stated he thought he was employable within certain limitations. These words are the vain hope of a proud man wanting to work. The independent and unemotional testimony of Dr. George Fluter and Jerry Hardin paint a starker picture.
Here, Dr. Fluter characterized Conrow as “essentially and realistically unemployable.” Fluter explained Conrow had an underlying arthrogryposis condition, limited sensory sensitivity in his hands and fingers when doing activities that affected his ability to do basic daily activities, reduced grip strength in his hands, and changes in range of motion in his fingers — all of which made it “difficult for him to really do much work with his upper extremities on a regular and consistent basis.” Fluter testified he did not expect Conrow would be able to operate a keyboard, do clerical filing work, make change for money, or perform a job involving grasping or gripping of the hands.
Then, Hardin, the vocational expert, testified it was his opinion Conrow had a 100% work task/job loss, was essentially and realistically unemployable, and was unable to obtain or perform substantial and gainful employment. Hardin stated his company would not work with Conrow as an applicant for employment based on his current restrictions and limitations and his inability to even fill out an employment application. Hardin recognized Conrow was working part-time at one time but stated Conrow was realistically unemployable for purposes of substantial gainful employment on a full-time basis in the open labor market.
The Board quite properly took all of this evidence into account when it decided Conrow was entitled to total disability benefits:
“The Board concludes respondent has failed to rebut the presumption that claimant is now permanently and totally disabled after injuring both of his upper extremities working for respondent. Indeed, the greater weight of the evidence supports that presumption. For example, respondent employed claimant as a working supervisor and, unfortunately, claimant is no longer able to work with his hands. Likewise, claimant performed a rather extensive job search and was unable to find that special fit or special accommodated position, which respondent’s vocational expert indicated would be required to return claimant to work. Considering claimant’s injuries, education, and work experience, there is ample evidence that claimant is essentially and realistically unemployable.” (Emphasis added.)
We must conclude that substantial competent evidence supports the Board’s finding that Conrow’s testimony suggesting he was employable was outweighed by the testimony of Dr. Fluter and Hardin, in the view of the Board. We will not reweigh that evidence. Furthermore, we see nothing in the record that indicates the Board disregarded any undisputed evidence. The Board’s conclusion that the greater weight of the evidence supported the presumption that Conrow was totally disabled is supported by this record. We will not disturb the Board’s finding in this regard.
We will not entertain arguments not made to the Board.
In this appeal, Globe vainly tried to argue that Conrow was not entitled to permanent total disability benefits because both of his arms had not been amputated. In other words, Conrow did not suffer a complete loss of both arms as contemplated in K.S.A. 44-510c(a)(2). This argument was not raised before either the administrative law judge or the Board. Globe claims this court should address this issue, in spite of it failing to raise it before, since it is simply a question of law. In support, Globe cites Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), and In re S.D., 41 Kan. App. 2d 780, 204 P.3d 1182 (2009).
Those two cases are unpersuasive. In Pierce the court considered a claimed violation of a constitutional right not raised until appeal. 200 Kan. at 80-81. In In re S.D., a panel of this court addressed a statutory interpretation question not raised in the district court. 41 Kan. App. 2d at 787-88. Both cases dealt with issues not raised in district court, rather than issues not raised before a state agency.
We hold that entertaining questions that are not raised before the Board or any state agency violates the doctrine of operative construction. Our Supreme Court has defined the doctrine:
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference and is called the doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and ex perience.” Reifschneider v. Kansas State Lottery, 270 Kan. 560, Syl. ¶ 2, 17 P.3d 907 (2001).
Parties should not be allowed to bypass a state agency’s special competence and experience either through inadvertence or intentionally. Fundamentally, state agencies, such as the Board here, that have special expertise must be given every opportunity to interpret the particular statutes dealing with their field of enforcement. Therefore, we find it inappropriate to entertain Globe’s claim that K.S.A. 44-510c(a)(2) has been interpreted incorrectly because the argument was not first presented to the administrative law judge or the Board.
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Rulon, J.:
Claimant Larry J. Matney, D.C., appeals the Workers Compensation Board’s (Board) order denying him permanent partial general disability benefits and finding his insurance carrier, State Farm Fire & Casualty Co., properly designated his treatment provider. We affirm in part, reverse in part, and remand the cause with directions.
Claimant, a chiropractor, was injured in June 1993 while lifting a table at work. Claimant is the president, vice-president, and sole shareholder of respondent Matney Chiropractic Clinic. The administrative law judge (ALJ) awarded claimant permanent partial general disability of 38.75%. The insurance carrier, State Farm Fire & Casualty Company, (State Farm) requested review by the Board. The Board found claimant was not disabled from working for 1 week under K.S.A. 1992 Supp. 44-501(c) and was, therefore, only entitled to medical compensation, not permanent partial general disability. The Board further found State Farm was allowed to designate claimant’s treating physician. Additionally, the Board found claimant’s medical expenses provided by Dr. Darrell Fore after September 9, 1994, were unauthorized.
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). 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. Importantly, this court does not reweigh the evidence or determine the credibility of witness testimony. Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 56, 913 P.2d 612 (1995).
PRECLUSION OF BENEFITS
At the time of claimant’s injury, K.S.A. 1992 Supp. 44-501(c) provided:
“Except for liability for medical compensation, . . . the employer shall not be hable 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.”
Although the legislature amended K.S.A. 44-501(c) in 1996 to delete this section, the law in effect at the time of the injury governs the rights and obligations of the parties. See Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 874, 936 P.2d 297, rev. denied 262 Kan. 962 (1997). The 1996 amendments to K.S.A. 44-501(c) are not retroactive. Osborn, 23 Kan. App. 2d at 874-75. K.S.A. 1992 Supp. 44-501(c) unambiguously states that when an injury does not disable the employee for at least 1 week from earning full wages, the employer is liable only for the medical expenses. Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 981, 911 P.2d 198, rev. denied 260 Kan. 991 (1996).
Although claimant decreased the number of hours worked, the record established claimant continued to draw the same bimonthly salary following his injuiy as before his injury. In fact, claimant’s salaiy eventually increased. We are satisfied there was substantial competent evidence that claimant’s injuiy did not disable him from earning full wages. As such, the Board did not err in finding claimant was ineligible for workers compensation benefits, other than medical compensation, under K.S.A. 1992 Supp. 44-501(c).
Claimant’s argument the Board erred in denying him a work disability award is moot. Under K.S.A. 1992 Supp. 44-501(c), claimant was entitled only to medical compensation, so the Board did not err in finding claimant was not entitled to permanent partial general disability compensation.
DESIGNATION OF HEALTH CARE PROVIDER
K.S.A. 44-510(a) states it is the employer’s duty “to provide the services of a health care provider ... as may be reasonably necessary to cure and reheve the employee from the effects of the injuiy.” Respondent designated Dr. Darrell Fore as claimant’s authorized treatment provider. The Board found, however, that because claimant and respondent are the same individual, State Farm was authorized to designate claimant’s treatment provider. State Farm advised claimant that as of November 24,1993, Dr. Kenneth Wertzberger was to be designated as claimant’s only authorized health care provider. State Farm further advised claimant it would not pay for chiropractic visits to Dr. Fore after September 9,1994. However, claimant continued to see Dr. Fore. The Board found claimant’s visits to Dr. Fore after September 9, 1994, were unauthorized and not compensable.
K.S.A. 44-532(a) states: “[W]here the payment of compensation of the employee . . . is insured by a policy or policies, at the expense of the employer . . . the insurer . . . shall be subrogated to the rights and duties under the workers compensation act of the employer so far as appropriate . . . Usually, designating an authorized treatment provider is an employer’s duty, but the insurance carrier may be subrogated to that duty as is appropriate. The Workers Compensation Act specifically requires the employer, rather than the employee, to designate the treatment provider. K.S.A. 44-510. The Workers Compensation Act does not intend for an employee to designate his or her own treatment provider. Where the employer and the employee are the same person, the intent of the Act is upheld by allowing the insurance carrier to step into the shoes of the employer to designate a treatment provider.
Claimant argues K.S.A. 44-532(a) applies only to situations in which the insurance carrier asserts rights of recovery against other entities when money has been paid to an injured worker. Claimant further argues there is no basis for allowing the insurance carrier to step into other rights of the employer. However, the plain language of the statute allows the insurance carrier to be subrogated to “the rights and duties under the workers compensation act of the employer.” K.S.A. 44-532(a). Such language does not limit subrogation to recovering money from other entities. We are convinced the Board did not err in finding State Farm was allowed to designate claimant’s treatment provider and is allowed to designate treatment providers for future cafe if needed.
AUTHORIZED TREATMENT
Claimant asserts that Dr. Wertzberger authorized treatment by Dr. Fore, making such expenses compensable. Dr. Wertzberger first saw claimant on November 23,1993, and stated claimant could continue conservative treatment. On November 24, 1993, State Farm designated Dr. Wertzberger as claimant’s authorized treatment provider. On January 11, 1994, Dr. Wertzberger said it was acceptable for claimant to continue to see Dr. Fore for chiropractic treatment, but recommended 6 months to 1 year of such treatment. On January 21, 1994, Dr. Wertzberger said, “I believe the prognosis is reasonably good for [claimant] to get better with conservative treatment. ... I recommend that he go ahead and see the chiropractor near him.” On June 6, 1994, State Farm told claimant Dr. Wertzberger was the only authorized treatment provider and treatment by Dr. Fore was not authorized. On September 7,1994, State Farm told claimant no treatment from Dr. Fore would be authorized after September 9, 1994. On September 20, 1994, Dr. Wertzberger examined claimant and told him “if conservative treatment works, that is all that is needed. If the patient is able to tolerate the problem, then we should go no farther. If the problem is such that it is impairing his lifestyle severely, then a patient with [claimant’s condition] does benefit from surgery.” Dr. Wertzberger did not state that the continued conservative treatment of chiropractic care was unnecessary.
This record shows Dr. Wertzberger, as claimant’s authorized treatment provider, approved claimant to continue treatment with Dr. Fore. There is no indication Dr. Wertzberger has determined such treatment is no longer necessary. Although State Farm attempted to disapprove all treatment by Dr. Fore, it did not have this authority, even acting in place of tire employer. We conclude the Board erred in finding Dr. Fore’s treatment was unauthorized when the evidence indicates Dr. Wertzberger approved such treatment.
We affirm the Board’s denial of benefits other than medical compensation and its finding that State Farm had authority to designate claimant’s treatment provider. We reverse the Board’s denial of payment for expenses of Dr. Fore’s treatment of claimant and remand the cause to the Board to reinstate the award of medical expenses. | [
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Marquardt, J.:
Bi-State Development Company (Bi-State) appeals the district court’s granting of summary judgment to Shafer, Kline, & Warren, Inc. (SKW).
By letter agreement dated March 4, 1986, SKW prepared a real estate plat for Bi-State’s business park showing an easement to Panhandle Eastern Pipeline Company, Inc. (Panhandle). The plat was presented to and approved by the Planning Commission of the City of Leawood, Kansas, on April 22,1986, and the Leawood City Council on May 5, 1986.
Panhandle prepared its own rendition of the easement which John A. Meier, an agent of Bi-State, executed and subsequently filed with the Johnson County Register of Deeds on June 10,1986. This document described an easement in a different location than was shown in the plat prepared by SKW. Bi-State did not give a copy of the filed easement to SKW. Thus, SKW was not able to review the location of the easement to determine if it conformed to its plat.
Bi-State discovered the difference of the easement location in the summer of 1995, when a portion of the real estate was sold. On December 24, 1996, Bi-State filed a breach of contract suit against SKW. SKW filed a motion to dismiss and/or motion for judgment on the pleadings and argued that Bi-State’s claim for breach of contract was barred by the statute of limitations. Bi-State responded to SKW’s motion to dismiss and abandoned its claim for breach of contract and elected to proceed against SKW on the theoiy of professional negligence.
The district court treated Bi-State’s motion to dismiss as a motion for summary judgment and ruled in SKW’s favor. The district court found that (1) Bi-State did not meet the burden of furnishing independent evidence sufficient to establish the professional standard of care allegedly breached and (2) the statute of limitations had expired; it also determined that it would not imply a professional duty. Bi-State filed a motion to reconsider and offered a copy of a document which stated the release and indemnity executed by Bi-State was not a release of SKW’s professional responsibility. Bi-State’s motion to reconsider was denied.
When the issue on appeal is whether the trial court correctly granted summary judgment, an appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. Moore v. Associated Material & Supply Co., 263 Kan. 226, 234, 948 P.2d 652 (1997). A party opposing a summary judgment may not rest merely on allegations, but must provide some affirmative evidence to support its position. K.S.A. 1998 Supp. 60-256(e). See Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).
Professional Negligence
In responding to SKW’s motion to dismiss, Bi-State alleges that its “claim is properly brought for professional negligence under [K.S.A. 1998 Supp.] 60-513 and under the terms of the contract.”
The district court asked whether Bi-State could provide independent evidence from engineers or other experts which would have made SKW aware of the easement and would have created a duty on the part of SKW. Bi-State replied that it could not. Notwithstanding the fact that Bi-State could not present any evidence to support its assertion, it stated that SKW had a duty and professional responsibility to review the easement.
In order to maintain a cause of action in negligence, Bi-State needs to establish a duty, a breach of the duty, that injuiy resulted from the breach, and that the breach proximately caused the injury. See Davey v. Hedden, 260 Kan. 413, 426, 920 P.2d 420 (1996). Bi-State argues that the release and indemnity agreement establishes a duty. The agreement states that SKW is not released from professional duties; however, it does not establish a standard of care or state what SKW’s duties are in relation to the agreement.
Expert testimony is often required to establish the standard of care in cases involving professional actions and whether the professional deviated from the standard of care. See McConwell v. FMG of Kansas City, Inc., 18 Kan. App. 2d 839, 847-48, 861 P.2d 830 (1993), rev. denied 254 Kan. 1077 (1994) (professional standard of attorney to communicate with client following verdict); Seaman U.S.D. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, 293, 594 P.2d 241 (1979) (application of architectural community standard).
In Crooks v. Greene, 12 Kan. App. 2d 62, 66, 736 P. 2d 78 (1987), this court held: “If plaintiffs were wrong in their assertion that expert testimony was not needed, their claims failed for lack of evidence because they had not identified any expert testimony to support their claims.” Bi-State’s failure to supply independent evidence that established a duty results in a failure of Bi-State’s claim of professional negligence unless the common knowledge exception is applicable.
The common knowledge exception to the requirement of expert testimony in a professional negligence claim does not apply when the matter is technically complicated. However, the common knowledge exception does apply when a layperson’s common knowledge is sufficient to recognize a deviation from the accepted standard of care. See Seaman, 3 Kan. App. 2d at 293. We hold that the common knowledge exception is not applicable to the facts here.
Statute of Limitations
Bi-State filed the easement with the register of deeds on June 10, 1986. Bi-State discovered the difference in the easements in the summer of 1995 and filed suit against SKW in December 1996. Bi-State claims it filed its cause of action within the 2-year statute of limitations because it commenced suit within 2 years of the date that the injury became reasonably ascertainable. See K.S.A. 1998 Supp. 60-513.
In Knight v. Myers, 12 Kan. App. 2d 469, 474, 748 P. 2d 896 (1988), this court held: “An injury is reasonably ascertainable when the plaintiff knew or could reasonably have been expected to know of the alleged negligence.” The term “reasonably ascertainable” carries with it an obligation to investigate available factual sources. See Davidson v. Denning, 259 Kan. 659, 678, 914 P.2d 936, (1996).
In Goodwin v. City of Kansas City, 244 Kan. 28, 766 P. 2d 177 (1988), a landowner was charged with violating the city zoning ordinances. The Kansas Supreme Court held that the landowner, who is charged with notice of the zoning ordinance, could not rely on the statements of a building inspector that differed from the ordinance. 244 Kan. at 33-34. Similarly, Bi-State cannot rely on SKW’s representations on a plat drawn before Panhandle’s easement was created and recorded.
Under K.S.A. 58-2222, every written, recorded, and certified instrument “shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof.” Since Bi-State’s agent executed the document describing Panhandle’s easement in a different location than on the plat previously prepared by SKW, Bi-State is charged with knowledge of the contents. Bi-State argues it is not an expert in reading easements; however, the statute charges notice to “all persons,” not just experts.
Kansas courts charge parties with constructive notice of public records. In Travis v. Glick, 150 Kan. 132, 141, 91 P.2d 41 (1939), the Kansas Supreme Court held that a party charged with constructive notice cannot claim ignorance of public records in order to toll the statute of limitations. Similarly, subsequent purchasers are charged with constructive notice of the presence and contents of recorded interests in land, if sufficiently described, even when they were not a party to the conveyance and when the interest was not properly indexed by the register of deeds. Luthi v. Evans, 223 Kan. 622, 629, 576 P.2d 1064 (1978).
Bi-State executed the easement which became a public record on June 10, 1986. Its injury was reasonably ascertainable on June 10, 1986. The suit is barred by the statute of limitations. The motion for summary judgment was properly granted.
Statute of Repose
The district court relied on the statute of limitations rather than the statute of repose when making its ruling; however, appellee also addresses the statute of repose. Bi-State’s cause of action arose in June 1986, but the case was not filed until December 1996. The statute of repose states: “[I]n no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” K.S.A. 1998 Supp. 60-513(b) (this provision has been reworded since 1986 but the effect here is unchanged). The act giving rise to substantial injury occurred more than 10 years before this suit was filed. Therefore, the action is barred by the statute of repose.
Liability
Bi-State argues that liability was established by negligence per se. The distinction between “negligence” and “negligence per se” is the means and method of ascertainment. Negligence requires a determination by a factfinder from the evidence. Negligence per se results from violation of a specific law or ordinance; and the only determination for the factfinder is whether there was a commission or omission of a specific act prohibited or required. Kerns v. G.A.C., Inc., 255 Kan. 264, 281, 875 P.2d 949 (1994). In the present case, no violation of a statute or ordinance is either alleged or proved. The district court did not err in finding no liability on the part of SKW. Bi-State’s motion for summary judgment was properly denied.
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Schmisseur, J.:
The Kansas Department of Revenue (KDR) appeals from the district court’s order reversing the 330-day restriction on Lariy J. Ruble’s driving privileges for failing a breath alcohol test. The KDR argues that the court erred in finding that the notices given to Ruble were not adequate because they did not mention the 330-day restriction of driving privileges. Ruble cross-appeals, arguing that the court erred in failing to consider the “margin of error” for his breath sample.
The facts are not substantially in dispute and are highly summarized. On February 23,1995, Ruble was placed under arrest for driving under the influence (DUI). At the law enforcement center, Ruble was asked to take a DUI breath test. Officer Fleming provided Ruble a written and oral implied consent advisoiy as required under K.S.A. 1994 Supp. 8-1001(f). However, the officer did not advise Ruble that his driving privileges would be restricted for 330 days following the 30-day suspension period if he failed the test. Ruble agreed to take the breath test which revealed that his alcohol concentration was .087.
Upon Ruble’s request, an administrative hearing was held on May 31, 1995. The administrative hearing officer suspended Ruble’s driving privileges for 30 days with a 330-day restriction. On review to the district court, the court approved the 30-day suspension but rejected the 330-day restriction. The court found that Ruble should have been notified of the 330-day restriction before taking the breath test even though such a notice is not required by K.S.A. 1994 Supp. 8-1001(f)(l).
The first issue on appeal is whether the district court erred in reversing the 330-day restriction against Ruble because he did not receive adequate notice of the restriction.
The KDR argues the district court erred in requiring an additional notice not required by K.S.A. 1994 Supp. 8-1001(f)(l). The KDR maintains that the legislature only intended to notify a driver being tested for the person’s alcohol concentration that his or her driving privileges will be suspended for failing the breath test.
The district court’s interpretation of a statute raises a question of law. An appellate court’s scope of review of questions of law is unlimited. State v. Brady, 261 Kan. 109, 113, 929 P.2d 132 (1996).
“It is the function of a court to interpret a statute to give it the effect intended by the legislature.” In re Application of Zivanovic, 261 Kan. 191, Syl. ¶ 1, 929 P.2d 1377 (1996). “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. [Citation omitted.]” State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).
K.S.A. 8-1001 et seq., the implied consent law, is the statute which authorizes the KDR to suspend a person’s driver’s license. K.S.A. 1994 Supp. 8-1001(a) provides that any person who operates a car in Kansas has given consent to submit to a chemical test to determine the presence of alcohol. Before a police officer conducts a test, the officer must inform the driver, orally and in writing, with certain specified warnings. K.S.A. 1994 Supp. 8-1001(f)(l). If the driver consents to the test and the person’s blood alcohol concentration registers .08 or more, the division of motor vehicles shall suspend the person’s driving privileges for 30 days and then if it is a first occurrence, restrict the person’s driving privileges for an additional 330 days. K.S.A. 1994 Supp. 8-1001(f)(l)(E); K.S.A. 1994 Supp. 8-1014(b)(l).
Under K.S.A. 1994 Supp. 8-1001(f)(1)(E), an officer must inform the driver that if he or she consents to the test and the person’s blood alcohol concentration registers .08 or more, then his or her driving privileges will be suspended for at least 30 days. However, K.S.A. 1994 Supp. 8-1001 does not require an officer to inform the driver that his or her driving privileges can also be restricted for another 330 days for failing the test.
In State v. Kristek, 14 Kan App. 2d 77, 78-80, 781 P.2d 1113 (1989), this court reversed a lower court’s finding requiring an officer to make a written record of whether a driver being tested for alcohol concentration requests an independent alcohol analysis. The court noted that the lower court’s decision imposed an additional requirement than those set out in K.S.A. 1988 Supp. 8-1001. This court emphasized that Kansas courts have been reluctant to add requirements that are not contained in 8-1001. 14 Kan. App. 2d at 79. The court found that 8-1001(f) includes all the requirements that the legislature intended to impose on law enforcement officers. This court concluded that, in the absence of the constitutional reason, it did not have authority to impose an additional requirement under 8-1001.14 Kan. App. 2d at 80; see also Ramirez v. Kansas Dept. of Revenue, 13 Kan. App. 2d 332, 336, 770 P.2d 490, rev. denied 244 Kan. 738 (1989) (reversing a lower court’s finding that an officer should inform a driver of his right to take an alcohol content test after initially refusing the test).
Ruble maintains that a person has a right to know of the significant consequences which would have a major impact on their decision to take a breathalyzer. He maintains the 330-day restriction is such a consequence. However, the 330-day restriction of driving privileges is not a punishment. The restriction is part of the civil regulatory scheme that fosters public safety by restricting the driv ing privileges of a person who has exhibited dangerous behavior. See State v. Mertz, 258 Kan. 745, 758-59, 907 P.2d 847 (1995) (civil suspension of driving privileges is not punishment for purposes of double jeopardy).
The Kansas Legislature has set out the specific notices required when a driver is requested to submit to a chemical test to determine the presence of alcohol under 8-1001(f). These notices were properly given in the present case. Under the reasoning in Kristek, the court does not have the authority to judicially amend the statute to add a further requirement. Thus, the district court erred in finding that Ruble should have received notice of the 330-day restriction.
In his cross-appeal, Ruble argues that the court erred in failing to apply the breath test machine’s “margin of error” in his favor. In rejecting Ruble’s contention, the district court found that the legislature did not intend for a court in a proceeding under K.S.A. 1994 Supp. 8-1002(h)(2) to consider the margin of error in determining whether a person fails a breath alcohol test.
As noted, the KDR is authorized to suspend a license to drive if “the test results show an alcohol concentration of .08 or greater.” K.S.A. 1994 Supp. 8-1001(f)(l)(E). Where an officer certifies that the driver failed the chemical test, the scope of the review hearing is limited to, among other things, whether “the test result determined that the person had an alcohol concentration of .08 or greater in such person’s blood or breath.” K.S.A. 1994 Supp. 8-1002(h)(2)(G).
Ruble refers this court to Haynes v. State, Dept. of Public Safety, 865 P.2d 753, 756 (Alaska 1993), where the Alaska Supreme Court addressed a similar issue. In Haynes, the Alaska court found that a driver’s due process rights were violated by the hearing officer’s failure to apply the margin of error inherent in the chemical breath test in favor of the driver. However, Haynes involved a constitutional challenge that was properly raised before the court. In contrast, Ruble is apparently raising his alleged constitutional argument for the first time on appeal. It is well settled that such assertions are not properly before this court for review. See In re M.M.L., 258 Kan. 254, 261, 900 P.2d 813 (1995).
In the present case, the officer performed a control test on the machine by introducing an air sample known to contain .08 alcohol immediately before testing Ruble. The control test produced a reading of .072, or .008 lower than the actual alcohol level present in the control sample. Ruble’s alcohol concentration was tested at .087.
Ruble’s argument basically concerns whether the evidence was sufficient to support this suspension because his alcohol content was .087 and the “margin of error” was plus or minus .008. Ruble appears to argue that the district court was compelled, in view of the .008 margin of error, to find that unless the test showed a blood alcohol level that was .008 higher than .08, the KDR had not carried its burden of proof.
Although no Kansas case addresses the issue that Ruble raises, several cases from other states have considered this issue. In Nugent v. Iowa Dept. of Transp., 390 N.W.2d 125 (Iowa 1986), the driver argued that since the blood testing device had an inherent 5 percent margin of error, his blood alcohol concentration could have been as low as 0.097 and, thus, below the statutory minimum at that time. 390 N.W.2d at 127-28. The Iowa Supreme Court rejected the driver’s argument because the Iowa driver’s license suspension statute did not on its face require consideration of the inherent margin of error in the test. 390 N.W.2d at 128. Other states have followed this reasoning when reviewing their own license revocation/suspension statutes. See Wieseler v. Prins, 167 Ariz. 223, 225-26, 805 P.2d 1044 (Ct. App. 1990), rev. denied March 5, 1991 (license revocation statute does not require consideration of margin of error before determining a person’s blood alcohol level); Hrncir v. Commissioner of Public Safety, 370 N.W.2d 444, 445 (Minn. App. 1985) (“The [Minnesota implied consent] statute refers to test results showing a blood alcohol concentration of .10 or more, not .10 plus or minus a margin or error.”).
K.S.A. 1994 Supp. 8-1001(f)(l)(E) and K.S.A. 1994 Supp. 8-1002(a)(2)(D) require the driver’s test results to show that his or her blood alcohol concentration is .08 or more before that person’s driving privileges are subject to suspension. See K.S.A. 1994 Supp. 8-1014(b) The statutes do not require the test result to pass the threshold alcohol limit of .08 within a margin of error. If the legislature had intended for the margin of error to be a factor, it could have easily included such a requirement in the statutes. See, e.g., Iowa Code § 321J.12 (1997 Supp.) (Iowa’s license revocation statute was subsequently amended after Nugent to require the hearing officer to consider die established margin of error inherent in the testing device utilized); Lawson, 261 Kan. at 966.
The record in this case reveals that the Kansas Department of Health and Environment had certified the Intoxilyzer and the officer operating it. The officer further testified that he followed the protocol for operating the machine and that the machine appeared to be working properly when he administered the test to Ruble. Ruble’s test results exceeded the .08 standard. Accordingly, the record contains sufficient evidence to support the district court’s findings.
The rulings of the district court are affirmed in part and reversed in part. The matter is remanded with directions to reinstate the 330-day restriction administratively applied. | [
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Gernon, J.:
Lee A. Loins, Jr., appeals his convictions for one count each of possession of marijuana and possession of drug paraphernalia. We affirm the marijuana conviction and reverse the drug paraphernalia conviction.
Police officers sought and obtained a search warrant for a trailer house in McPherson, including all persons present at the trailer when the warrant was executed. Officers found Loins in the bathroom when the warrant was executed, searched him, and found a cellophane wrapper containing marijuana in the watch pocket of his jeans.
The officers also recovered a pipe containing marijuana residue from one of the couches in the front room of the trailer.
Loins was charged with possession of marijuana and possession of drug paraphernalia. Loins filed a motion to suppress the marijuana found in his possession, but the motion was denied. He waived his right to a jury trial and was found guilty on both counts by the trial court. Loins appeals both convictions.
Search Warrant
Loins argues that the warrant authorizing the search of all persons at the trailer house is unconstitutional because the affidavit did not supply sufficient information to support the conclusion that all of the people at the trailer were likely to have marijuana.
The State bears the burden of proving the lawfulness of a search and seizure at a hearing on a motion to suppress. State v. Vandiver, 257 Kan. 53, 57, 891 P.2d 350 (1995). When reviewing a trial court’s decision on a motion to suppress evidence, an appellate court gives great deference to the factual findings of the trial court. State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998).
This court will not reweigh the evidence but will review the trial court’s findings to determine whether they are supported by substantial competent evidence. The ultimate determination of the suppression of evidence, however, is a question of law, requiring independent appellate determination. 263 Kan. at 732.
Here, the trial court noted that the facts were not in dispute. Consequently, there is no need to verily the trial court’s factual findings with substantial competent evidence. The remaining decision regarding the suppression of the evidence must be reviewed de novo. See 263 Kan. at 732.
When reviewing the validity of a search warrant, this court must determine whether the magistrate had a substantial basis for issuing it. State v. Gilbert, 256 Kan. 419, 422, 886 P.2d 365 (1994). A substantial basis for the warrant depends on whether probable cause existed under the totality of the circumstances. In making that determination, this court gives great deference to the magistrate’s determination. 256 Kan. at 422.
A magistrate is required to assess all of the circumstances presented and make a practical, common-sense decision about whether a crime has been committed or is in the process of being committed and whether there is a fair likelihood that the evidence will be found in the place specified. 256 Kan. at 421.
Although general warrants are constitutionally prohibited, warrants authorizing the search of all persons at a location are not per se invalid. State v. Horn, 15 Kan. App. 2d 365, 366, 808 P.2d 438, rev. denied, 248 Kan. 998 (1991). The facts in the affidavit must infer that the sole or primary activity at the location is the sale of drugs and that everyone present would be involved in the illegal activity. See 15 Kan. App. 2d at 367.
The affidavit in this case stated: (1) that concerned neighbors reported drug activity at the trailer; (2) that a lot of juveniles visited the trailer; (3) that a least a dozen cars would arrive and leave over the course of an evening; (4) that a lot of parties occurred in which mainly marijuana was consumed; (5) that Loins was known to be at the parties; (6) that Lenny Landrum, the reported resident, had been arrested for possession of marijuana and drug paraphernalia; (7) that Loins was convicted of possession of marijuana; (8) that an anonymous informant reported seeing marijuana in the trailer on numerous occasions; (9) that a Crime-Stopper tip reported marijuana sales at the trailer by Loins and two other individuals and that all three were living at the trailer; (10) that it is common for persons buying drugs to stay only a short time and leave with the drugs on their persons; and (11) that Loins was involved in trading sex for drugs at the trailer. All of the facts in the affidavit occurred or were reported from January 1996 until April 11, 1996, the day before the search warrant was issued.
Kansas has not determined what information is sufficient to infer that the primary activity at a location is the sale of drugs. Although the Horn court did not establish a basis for determining what is necessary for an all-persons warrant by reciting the facts in the affidavit, this court can compare the facts in this case to those found sufficient in other jurisdictions.
• .• Generally, an “all-persons” search warrant will be upheld when the affidavit includes information that the place to be searched is a private residence, that drug use and distribution occur at the place, and that there was a regular traffic of persons entering to make purchases. See, e.g., Commonwealth v. Smith, 370 Mass. 335, 339, 348 N.E.2d 101, cert. denied 429 U.S. 944 (1976) (upholding an all-persons warrant based on an affidavit that stated that occupants were selling drugs and that there was a regular traffic of persons entering to make purchases); State v. Hinkel, 365 N.W.2d 774, 775-76 (Minn. 1985) (finding probable cause for an all-persons warrant based on an affidavit that included complaints from neighbors about illegal activity at a house and information that illegal liquor sales occurred there); People v. Easterbrook, 43 App. Div. 2d 719, 720, 350 N.Y.S.2d 442 (1973), aff'd 35 N.Y.2d 913, 364 N.Y.S.2d 899, 324 N.E.2d 367, cert. denied 421 U.S. 965 (1974) (finding probable cause for an all-persons warrant based on statements in the affidavit indicating that drug sales and consumption occurred at the apartment); Com. v. Graciani, 381 Pa. Super. 626, 630, 554 A.2d 560 (1989) (finding that the confidential informant’s report of a drug sale at the private residence and the easily hidden characteristic of the contraband justified the all-persons warrant); Com. v. Heidelberg, 369 Pa. Super. 398, 407, 535 A.2d 611 (1987) (upholding a warrant to search all persons because the affidavit included information that the sale of cocaine occurred on the premises); Morton v. Commonwealth, 16 Va. App. 946, 951, 434 S.E.2d 890 (1993) (stating that information in the affidavit regarding drug use and distribution in an apartment justified the search of all persons present); State v. Hayes, 196 Wis. 2d 753, 764-66, 540 N.W.2d 1 (Wis. App. 1995) (upholding the all-persons warrant because the affidavit included information of a recent sale of crack cocaine at the apartment and the officer’s statement that, in his experience, it is common to find others at the location who are involved in the drug transactions).
We conclude that the affidavit in this case contained more information than those supporting all-persons search warrants that were upheld in other states. Based on the information provided to the magistrate and giving appropriate deference to the magistrate’s decision to issue a warrant, there was probable cause to believe that the primary activity at the trailer was drug sales and consumption and that all those present would be involved in the illegal activity. Accordingly, the trial court did not err by denying Loins’ motion to suppress the marijuana found in his pocket.
Even if this court determines that the affidavit contained insufficient facts to infer that the sale of drugs was the primary activity at the trailer, the evidence against Loins need not be suppressed. Evidence seized pursuant to a warrant should only be suppressed “on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” United States v. Leon, 468 U.S. 897, 918, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984).
The good faith exception in Leon provides that evidence should not be excluded unless (1) the judge or magistrate who issued the warrant was deliberately misled by false information; (2) the judge or magistrate completely abandoned his or her neutral and detached role; (3) the warrant is so lacking in specificity that the officers cannot determine the place of the search or the items to be seized; or (4) the warrant bears so little indicia of probable cause that it is entirely unreasonable for an officer to believe that the warrant is valid. State v. Doile, 244 Kan. 493, 502, 769 P.2d 666 (1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).
None of these exceptions are applicable to this case. First, Loins does not assert that the judge was deliberately misled by false information. Second, there is no evidence that the judge completely abandoned his neutral and detached role. Third, the warrant provided the officers with enough specificity to instruct them to search the premises and everyone present for controlled substances and items related to the controlled substances. Fourth, using an objective standard, there is no reason to question the validity of the warrant based on its face. See State v. Probst, 247 Kan. 196, 204, 795 P.2d 393 (1990).
Drug Paraphernalia
Loins next contends there was insufficient evidence to convict him of possession of drug paraphernalia.
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 a fight 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. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).
To establish Loins’ guilt for possessing drug paraphernaha, the State introduced three pieces of evidence. First, the pohce officer testified that he found a pipe containing marijuana residue in one of the couches in the front room of the trailer. Second, the State presented Loins’ statement that he slept on one of the two couches in the trailer, but not a specific couch. Third, the State introduced a bih for cable service at the trailer in Loins’ name to indicate that he was a resident of the trailer.
Loins presented evidence that he was in the bathroom when the search warrant was executed, that no one was on the couch when the officers arrived, and that Lenny Landrum owned the pipe.
Based on this evidence, even when viewed in a light most favorable to the State, we find that it is impossible to determine, with the record before us, beyond a reasonable doubt that the pipe belonged to Loins. Sleeping on a couch does not infer the use of the couch for storage of personal belongings. The trial court erred in finding Loins guilty of possession of drug paraphernaha, and his conviction on that count is reversed.
Affirmed in part and reversed in part. | [
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Royse, J.:
Turner & Boisseau, Chartered, and Hal Meltzer (appellants) filed this action for judicial review of an agency action. The agency action they challenged was an order of sanctions imposed against them in connection with a proceeding before the Kansas State Board of Healing Arts (Board). The district court upheld the agency action, and this appeal followed. We dismiss for lack of jurisdiction.
In early 1992 the Board initiated a disciplinary proceeding against Dr. Vinod Patel, based on allegations that he had engaged in unprofessional conduct with several women patients. Retired Judge Newton Vickers was appointed by the Board to serve as presiding officer in the matter. Dr. Patel was represented by appellants.
On May 11, 1992, appellants filed identical motions seeking to discover the medical records of three of the women who had complained about Patel’s conduct; One of these women was E.K. We are referring to her by her initials, based on the reasoning of Supreme Court Rule 7.043 (1998 Kan. Ct. R. Annot. 48). In re Berg, 264 Kan. 254, 955 P.2d 1240 (1998).
The motion referred to E.K. as the “plaintiff E.K.” It represented that she had “made a claim for injuries allegedly suffered in the accident or incident which is the subject of this action.” It argued that “in filing this lawsuit,” she had waived the physician-patient privilege. It represented that Patel needed the records “in order to confirm or deny the nature and extent of her alleged injuries.” These representations were reiterated in a legal memorandum which was filed in support of the motion.
Based on this motion, appellants obtained an order directed to all medical institutions, practitioners, and health care providers, which allowed them to inspect and copy E.K.’s medical records. The order recited that E.K. had “made a claim for personal injuries” and had therefore waived the physician-patient privilege.
In March 1993 E.K., through her counsel, filed a motion to quash a subpoena directed to one of her doctors and to obtain a protective order. She contended that appellants had been gathering her medical records since September 1992 without her knowledge or consent. She asked the presiding officer to rescind the discovery order, because it had been based on the fraudulent allegation that she had filed a claim for personal injuries against Patel. She noted that she had never filed a claim for personal injuries against Patel.
By letter order issued May 6, 1993, the presiding officer sustained E.K.’s motion. The presiding officer found that E.K. had never filed any personal injury claim against Patel. The presiding officer rejected appellants’ argument that making a complaint on which a disciplinary proceeding is based is the same thing as filing suit for personal injuries. The presiding officer further ordered appellants to pay E.K.’s attorney fees incurred in connection with the proceeding.
Subsequently, the presiding officer reviewed appellants’ letter asking for reconsideration of the fee order and E.K.’s documentation of fees incurred. By letter dated May 19,1993, the presiding officer specifically found that appellants knew when they sought the discovery order that E.K. had not filed any claim for personal injuries. The presiding officer found that appellants’ motion had been filed in violation of K.S.A. 60-2007(b). The letter concluded by ordering that Patel and appellants were jointly and severally liable for E.K.’s attorney fees in the amount of $1,020.
Appellants subsequently withdrew as counsel for Patel. An administrative hearing was held on April 25, 1994. The presiding officer filed his initial order on April 27,1994, recommending that Patel’s license be revoked. Patel, pro se, filed a timely motion for Board review of the initial order. The Board issued its final order on June 10, 1994, adopting the findings and conclusions set out in the initial order and ordering Patel’s license revoked.
On June 28,1994, appellants filed a petition in the district court, seeking judicial review of the sanctions imposed by the presiding officer in the May 6, 1993, and May 19, 1993, letters. The Board moved to dismiss the petition on the grounds that appellants had failed to exhaust their administrative remedies. On March 24,1995, the district court dismissed the action but remanded the matter to the Board. The district court reasoned that the May letters were initial orders but that the Board had failed to review them and file a final order as required by K.S.A. 77-526(g). The district court ordered the Board to review the letter orders and issue a final order within 60 days.
The Board conducted its review of the letter orders on April 29, 1995. Although Board members expressed reservations about their jurisdiction to review the letters, they decided to comply with the district court’s order. The Board’s final order regarding sanctions was filed on May 22, 1995, adopting and approving the orders of the presiding officer. The final order recited that, following the entiy of the letter orders in May 1993, “no party or other individual requested a review of said orders by the Board.” The Board further found that appellants had made allegations in the discovery motion which were not true.
Appellants filed a petition for judicial review of the May 22, 1995, order in district court on June 21,1995. Following a hearing, the district court entered an order upholding the sanctions.
Before considering appellants’ substantive arguments, we must first address a jurisdictional question. Under the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., an order issued by a presiding officer may be reviewed by the agency head. K.S.A. 77-527. Request for review by the agency head must be filed within 15 days after service of the initial order. K.S.A. 77-527(b). If no request for review is made, the presiding officer’s order becomes final. K.S.A. 77-526(b).
A petition for judicial review of an agency action may be filed only after all administrative remedies available within the agency have been exhausted. K.S.A. 77-612. In addition, a party may generally obtain judicial review only of those issues raised before the agency. K.S.A. 77-617; Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 58-59, 761 P.2d 320 (1988). Judicial review of a final action pursuant to K.S.A. 77-607 may address issues raised in regard to agency orders of a preliminary or interim nature. 2 Koch, Administrative Law and Practice § 8.25 (2d ed. 1997); see, e.g., In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 252-54, 891 P.2d 422 (1995) (reviewing preliminary order of agency declining to issue subpoenas in action for judicial review of BOTA exemption order); Wisconsin DOR v. Hogan, 198 Wis. 2d 792,543 N.W.2d 825 (Wis. App. 1995) (order certifying class action reviewable once agency issued order addressing merits); Lundy Packing Co. v. N.L.R.B., 856 F.2d 627, 630 (4th Cir. 1988) (judicial review of NLRB decision to uphold administrative law judge order quashing a subpoena). Compare K.S.A. 77-624 (authorizing judicial action to enforce subpoena, discovery order, or protective order).
Appellants state in their brief that they believed the presiding officer’s initial order of April 27, 1994, incorporated and affirmed his prior sanction orders contained in the May 6 and 19, 1993, letters. Yet they failed to seek agency review of the sanction orders upon the filing of the initial order. Thus, appellants failed to exhaust the remedy of administrative review by the Board which was available to them under K.S.A. 77-527. Although Patel did seek review of the initial order, he did not raise the sanctions issue. In short, the agency (the Board) never had the opportunity to address the sanctions issues before appellants proceeded to district court.
The district court correctly concluded that it could not examine an issue which appellants had failed to raise before the Board. The appropriate remedy, however, was not a remand for the Board to conduct a review that appellants had never timely requested. When appellants filed a lawsuit before exhausting administrative remedies required by K.S.A. 77-512, the district court should have dismissed the action for lack of subject matter jurisdiction. E.g., Dillon Stores v. Board of Sedgwick County Comm’rs, 259 Kan. 295, 912 P.2d 170 (1995); Dean v. State, 250 Kan. 417, 826 P.2d 1372 (1992); Zarda v. State, 250 Kan. 364, 826 P.2d 1365 (1992); Simmons v. Vliets Farmers Co-op Ass’n, 19 Kan. App. 2d 1, 861 P.2d 1345, rev. denied 253 Kan. 861 (1993); Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d at 59.
The parties spend considerable time trying to determine whether the sanction orders by the presiding officer were initial orders or final orders under K.S.A. 77-526. That statute, however, refers to orders issued at the completion of the formal hearing to address the substantive issues before the agency. As a general rule, the order is an “initial order” if issued by a presiding officer; the order is a “final order” if issued by the agency head. See Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 60 (1985). K.S.A. 77-526 has no application to the sanction orders at issue here. See also K.S.A. 77-522 (authorizing discovery orders and protective orders).
Because the appellants failed to exhaust their administrative remedies before filing suit, the district court lacked jurisdiction over the case. Where the district court has no jurisdiction, the appellate court does not acquire jurisdiction over the subject matter on appeal. Funk Mfg. Co. v. Franklin, 261 Kan. 91, 95, 927 P.2d 944 (1996).
Appeal dismissed. | [
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GERNON, J.:
Stephen Medford Shively appeals his convictions on multiple drug counts and one count of aggravated assault, raising several issues, including the violation of his Fourth and Fifth Amendment rights.
Shively shot and killed Officer Tony Patterson, a member of the Topeka Police Department Street Crime Action Team, during a drug raid at his home. The officers executing the drug raid woke Shively while breaking down Shively’s door at 3 o’clock in the morning. Shively asserted the affirmative defense of defense of dwelling and was acquitted of all charges related to the shooting. Shively, however, was convicted of possession with intent to sell, sale of marijuana, distribution of marijuana, conspiracy to distribute hallucinogenic drugs, failure to have a drug stamp, possession of drug paraphernalia, and aggravated assault. He appeals these convictions.
Suppression of Evidence
Shively claims the trial court erred in denying his motion to suppress the drug evidence obtained from the search of his residence.
When reviewing the trial court’s decision which suppressed evidence seized under a search warrant, great deference is given to the trial court’s findings of facts. The ultimate determination of whether the warrant was issued for probable cause, however, is a question of law subject to de novo review. See State v. Longbine, 257 Kan. 713, 717, 896 P.2d 367 (1995).
Shively asserts two arguments to question the constitutionality of the search warrants. First, Shively argues that the initial affidavit, which was incorporated by reference into subsequent search warrants for Shively’s residence, is invalid. Second, Shively argues that the first warrant was unconstitutionally executed.
The affidavit supporting a search of Shively’s residence was based on information received from a confidential informant (Cl). To bolster the credibility of the Cl, the affidavit states that the police had been working with the Cl for less than 1 month and that the Cl had no convictions for dishonesty. According to the affidavit, the Cl advised police of marijuana sales at Shively’s home and claimed to have witnessed sales by Shively on four occasions. The Cl identified Shively through a 1985 mug shot resulting from Shively’s previous arrest for possession of marijuana and drug paraphernalia. Finally, the affidavit states that the Cl had observed marijuana inside Shively’s apartment within the preceding 48 hours.
In addition to the information provided by the Cl, the affidavit included a description of a controlled purchase in which a Cl used police funds to purchase drugs while under police surveillance. The affidavit, however, does not state that’the Cl made a controlled purchase.
Based on the affidavit, a judge issued a search warrant at 2:25 a.m. on October 12, 1995. The district court upheld the search warrant but made no findings regarding the validity of the affidavit. The trial court merely stated that the “initial search warrant and affidavit attended thereto were . . . proper in form and in substance, and that . . . there was probable cause existent to issue the warrant.”
This court must determine whether the magistrate had a substantial basis for issuing the search warrant by determining whether probable cause existed under the totality of the circumstances. See State v. Gilbert, 256 Kan. 419, 422, 886 P.2d 365 (1994); State v. Ratzlaff, 255 Kan. 738, 743, 877 P.2d 397 (1994). In making that determination, great deference is given to the magistrate’s determination. Gilbert, 256 Kan. at 422.
A magistrate is required to assess all of the circumstances presented and make a practical, common-sense decision about whether a crime has been committed or is in the process of being committed and whether there is a fair likelihood that the evidence will be found in the place specified. Gilbert at 256 Kan. at 421.
When an affidavit is founded upon information from an unidentified informant, its validity is not controlled by the reliability of the unidentified informant. State v. Sidel, 16 Kan. App. 2d 686, 692, 827 P.2d 1215, rev. denied 250 Kan. 807 (1992). The probable cause determination, however, must be supported by some indication that the informant’s information is accurate. Sidel, 16 Kan. App. 2d at 692. Therefore, the veracity and basis of knowledge of the Cl must be considered as part of the substantial basis for finding probable cause in this case. See Ratzlaff, 255 Kan. at 743.
Shively argues that the affidavit’s statements regarding the Cl do not establish any indication of the Cl’s veracity or basis of knowledge. In support of this argument, Shively points to the officer’s statement in the affidavit that the Cl had no convictions for dis honesty. Shively claims the officer misrepresented the information to the magistrate. Because Shively did not offer proof under oath challenging the honesty of the information in the search warrant affidavit and requesting a Franks hearing, he cannot challenge the honesty of the statements as presented to the magistrate. See State v. Jensen, 259 Kan. 781, 787, 915 P.2d 109, cert. denied 136 L. Ed. 2d 250 (1996).
Here, the CFs veracity is established by two methods. The first method is the affiant’s direct statement that the Cl had no convictions for dishonesty. The second method is based on the ambiguous controlled purchase paragraph found in the affidavit. Although not specifically stated, it is reasonable to infer that the general paragraph about controlled purchases was included because one had been completed in the course of the investigation. The mere nature of a controlled purchase provides an adequate basis for believing the CFs claims about drug sales at Shively’s apartment.
The affidavit indicates that the Cl witnessed marijuana sales at Shively’s apartment and had recently seen a significant quantity of marijuana there as well. This information demonstrates that the Cl based his knowledge of the illegal events on first-hand perception.
Giving proper deference to the magistrate’s decision, this court finds that the affidavit adequately established the CFs veracity and basis of knowledge. Considering the totality of the circumstances presented to the magistrate, the affidavit, on its face, supports a finding of probable cause.
If officers seize evidence reasonably relying on a search warrant, the good faith exception bars application of the exclusionary rule. The good faith exception does not apply, however, when the officers seeking the search warrant deliberately misled the magistrate. Longbine, 257 Kan. at 720. In this case, we are required to conclude that the record clearly shows several instances where the officers deliberately misled the magistrate.
The first instance involved the statement regarding the CFs convictions for dishonesty. The Cl testified that he did not inform the officers of his criminal history. The requesting officer testified that he did not conduct any independent background investigation of the CL Consequently, the officers did not actually know the truth of this statement when it was presented to the magistrate.
Another instance relates to the claim that the Cl had witnessed Shively selling drugs on four occasions. The Cl testified that he did not tell the officers that he had ever seen Shively sell drugs, only that the sales occurred at Shively’s apartment. The statement in the affidavit clearly misrepresents the information provided by the CL
A third instance pertains to the officer’s claim that he had been working with the Cl for less than 1 month. In fact, the relationship with this informant was limited to little more than 24 hours. Although literally true, the officer’s statement mischaracterizes his relationship with the Cl. This court rejected the “literally true,” but “misleading” approach in State v. Olson, 11 Kan. App. 2d 485, 490, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986). This statement also demonstrates the officers’ deliberate attempt to mislead the magistrate.
Based on these deliberate misrepresentations, the good faith exception to the exclusionary rule would not apply.
In addition to challenging the validity of the affidavit, Shively argues that the initial search violated his Fourth Amendment right against unreasonable search and seizure. Shively claims that the night-time execution of the warrant and the officers’ failure to knock and announce their presence were unreasonable.
First, Shively complains of the night-time execution of the warrant. K.S.A. 22-2510 permits the execution of a search warrant at any time of any day or night. Relying on the common-law tradition against night-time searches, Shively asserts that K.S.A. 22-2510 is unconstitutional because it authorizes a blanket exception to reasonable searches. In our view, this argument takes K.S.A. 22-2510 out of its legislative context. This statute does not attempt to limit any reasonableness analysis required under Section 15 of the Kansas Constitution Bill of Rights or the Fourth Amendment to the U.S. Constitution. K.S.A. 22-2510 is merely permissive, giving legislative approval for executing search warrants at any time in accordance with law enforcement needs and constitutional con straints. Consequently, K.S.A. 22-2510 is not a blanket exception to a reasonableness determination and is not unconstitutional.
Next, Shively claims that the officers’ failure to knock and announce their presence was unreasonable. In support, Shively cites Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995). In Wilson, the United States Supreme Court held that the reasonableness determination under the Fourth Amendment requires consideration of whether the officers knock and announce their presence and authority before entering. 514 U.S. at 934. Kansas has not specifically addressed this question.
Kansas has not adopted a knock and announce rule for executing search warrants. State v. Tyler, 251 Kan. 616, 634, 840 P.2d 413 (1992). The State suggests that Wilson merely provides guidance but does not expand or delimit current Kansas law. The State’s suggestion ignores the precedential effect of United States Supreme Court decisions dealing with constitutional rights. U.S. Const. Art. IV. State courts are required to follow Supreme Court decisions affecting constitutional rights regardless of whether prior state court decisions are consistent with those decisions. Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959). Clearly, the Wilson decision applies in Kansas.
Although the Wilson decision requires consideration of whether officers knock and announce, it does not establish a rigid rule of announcement. Wilson, 514 U.S. at 934. On the contrary, the Wilson Court acknowledged the need to balance law enforcement interests with the flexible requirement of reasonable searches and refused to dictate how search warrants must be executed. Wilson, 514 U.S. at 934. The Wilson Court stated that lower courts should determine the circumstances warranting a no-knock entry. Wilson, 514 U.S. at 936.
The Wilson decision was further explained by Richards v. Wisconsin, 520 U.S. 385, 396, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997), which held that the Fourth Amendment does not permit blanket exceptions to the knock and announce requirement for felony drug investigations. The Tenth Circuit has also addressed the Wilson decision, holding that officers are excused from the knock and announce rule when justified by exigent circumstances. U.S. v. Moore, 91 F.3d 96, 98 (10th Cir. 1996). This exception, however, only applies when officers hold an objectively reasonable belief that an emergency situation exists. Moore, 91 F.3d at 98. The Moore court further limited emergency situations regarding weapons to those in which the government can articulate how the presence of weapons affected the officers’ safety. Moore, 91 F.3d at 98-99.
The State argues that the officers’ no-knock entry was justified because of the threat of weapons and the possible destruction of evidence. Wilson acknowledged both of these as appropriate reasons for no-knock entries. 514 U.S. at 936. However, further analysis into the specific circumstances of Shively’s raid is required before determining whether it met reasonableness requirements. Although Wilson and its progeny have not been discussed in Kansas state courts, federal case law requires an evaluation of the circumstances surrounding the no-knock execution of the search warrant at Shively’s apartment. The same analysis applies to Kansas state courts.
The record does not support the State’s position that exigent circumstances required the no-knock entry. First, the raid team’s supervising officer testified that all of the search warrants executed by his officers were conducted in a no-knock manner. This indicates that as a matter of course, exigent circumstances were not considered by the officers before determining the necessity of a no-knock entry. In addition, an officer on the raid team testified that the destruction of evidence was not discussed during the raid planning and that the Cl advised officers that there were no weapons present. Finally, one of the raid team leaders testified that they expected to find Shively asleep. Based on this testimony, the State cannot establish that the officers considered the possibility of exigent circumstances until after the fact.
Consequently, we conclude that the initial search warrant was unconstitutionally executed. Regrettably, the loss of an officer’s life might have been prevented if the affidavit had been candid and not designed to mislead the magistrate into issuing the search warrant.
The rule in Kansas, plainly stated in the Wilson decision, is that absent exigent circumstances, no-knock search warrant executions will result in suppression of the evidence.
Here, however, we conclude that the impropriety and unconstitutionality of the execution does not require suppression of any evidence. After Officer Patterson was shot, the remaining officers arrested Shively and searched his apartment for other occupants to avoid further violence. The search following Shively’s arrest did not extend to the items listed in the search warrant. One raid team member testified that no physical evidence was seized as a result of the initial search warrant. Instead, police sought and obtained a subsequent search warrant based, in part, on the initial affidavit. Police executed the second warrant at Shively’s apartment later the same day. The second warrant had a sufficient basis in truth and was constitutionally sufficient. As a result, there was no tainted evidence seized under the initial search warrant.
The fruit of the poisonous tree doctrine does not apply to require suppression of evidence under the subsequent warrants. This doctrine is invoked when officers rely on information received during unlawful police conduct to access additional information. State v. Daly, 14 Kan. App. 2d 310, 315, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). Here, the police incorporated the initial affidavit into the subsequent search warrant affidavits and did not rely on any additional information received during the raid to establish probable cause regarding Shively’s drug activity.
The trial court did not err in denying Shively’s motion to suppress.
Privilege Against Self-Incrimination
Shively contends that his Fifth Amendment privilege against self-incrimination was violated when the trial court ordered him to testify.
The error complained of affects Shively’s constitutional rights. Therefore, it cannot be considered harmless unless an appellate court declares that it was harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt when the error had little, if any, likelihood of having changed the result of the trial. See State v. Smallwood, 264 Kan. 69, 81, 955 P.2d 1209 (1998).
Shively raises two arguments in support of this issue. First, Shively claims error in die trial court’s refusal to sever the drug charges from the person felony charges. Second, Shively asserts that the trial court erroneously forced him to testify under cross-examination to questions outside the scope of his limited direct testimony. Both of these arguments must be evaluated under their applicable standards of review, and the resulting determination must be evaluated for harmless error.
The standard of review for severing charges is abuse of discretion. State v. Anthony, 257 Kan. 1003, 1016, 898 P.2d 1109 (1995). K.S.A. 22-3202(1) permits the joinder of charges in the same complaint or information if the crimes charged are acts or transactions that are related. In this case, the judge denied Shively’s motion to sever the drug charges based on the State’s refusal to consent. The court did not state any other reasons for denying the motion.
Our task is to determine whether the trial court abused its discretion. Judicial discretion is abused only when it plainly exceeds the bounds of reason and justice. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). The record reflects that the officers’ presence at Shively’s apartment to execute a warrant was related to the previous drug activity at that location. This connection logically links the drug charges and the person felony charges, allowing joinder under K.S.A. 22-3202(1). Although others may differ regarding the connection, it is not so tenuous as to warrant reversal for abuse of discretion. Indeed, if reasonable persons could differ as to the propriety of the action, then the trial court has not abused its discretion. See Stallings, 262 Kan. at 726.
The trial court’s decision is also supported by previous Kansas law demonstrating the minimal requirements for meeting the connection element of K.S.A. 22-3202(1). In State v. Anthony, 257 Kan. at 1016-17, the Kansas Supreme Court allowed the joinder of murder charges and drug charges because the defendant was overheard discussing the murder while under police surveillance for drugs. Clearly the connection between the murder charges and the drug charges were more tenuous in Anthony than those in this case. Based on the minimal connection established by Anthony, we conclude that the district court did not abuse its discretion in this case.
Next, Shively argues that the trial court forced him to testify beyond the scope of his direct testimony in violation of his Fifth Amendment privilege against self-incrimination. The trial court’s decision about the scope of cross-examination is also reviewed under the abuse of discretion standard. See State v. Vargas, 260 Kan. 791, 798, 926 P.2d 223 (1996).
Shively offered direct testimony about the events pertaining to the search warrant execution and fhe shooting of Officer Patterson. The trial court ruled that cross-examination could cover the drug-related events that occurred just prior to the search warrant raid because they were pertinent to Shively’s state of mind. The court, however, specifically denied the State’s proposed cross-examination into Shively’s involvement with Chris Donnelly, a co-actor in the marijuana sales at Shively’s apartment; the acquisition of the marijuana expected to be seized in the raid; the packaging, sale, distribution, and proceeds from previous drug transactions; and the presence of cash in Shively’s apartment.
To abuse its discretion, fhe trial court must have acted arbitrarily, fancifully, or unreasonably in making its decision. In other words, a trial court abuses its discretion when no other reasonable person would take the same view. Stallings, 262 Kan. at 726. In this case, other reasonable persons could reach the decision that fhe activities immediately prior to fhe raid affected Shively’s state of mind. Consequently, the trial court did not abuse its discretion in allowing the scope of cross-examination to cover the time period immediately before the raid.
Independent analysis of each of Shively’s individual arguments does not warrant reversal. However, the harmless error standard must also be applied to resolve the constitutional impact of Shively’s arguments. When constitutional rights are invoked, this court must determine beyond a reasonable doubt whether the error would have affected the outcome of the trial. Smallwood, 264 Kan. at 81. Nonetheless, consideration of these arguments under the harmless error standard does not warrant reversal.
During the course of Shively’s cross-examination, he incriminated himself by admitting to the use of a “bong” for smoking marijuana, admitting the possession of marijuana valued at hundreds of dollars, and admitting that marijuana was sold in his apartment just before the raid. Shively’s incriminating testimony, however, is not the only evidence supporting the relevant charges. The State produced physical evidence and eyewitnesses’ testimony that also incriminated Shively. We conclude that the verdict here, given our reading of the total record, was not affected by Shively’s testimony.
Sufficiency of the Evidence
When the sufficiency of the evidence is challenged, 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. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Shively claims that the evidence was insufficient to demonstrate his intent to place another person in reasonable apprehension of immediate bodily harm as required for aggravated assault. See K.S.A. 21-3408, K.S.A. 21-3410. This argument overlooks Shively’s testimony. Shively testified that he intended to scare or injure the intruders on the other side of his door. This testimony alone is sufficient to establish the intent element of aggravated assault. Viewing this evidence favorably to the prosecution clearly demonstrates that a rational factfinder could have found Shively guilty of aggravated assault beyond a reasonable doubt.
Jury Instructions
Next, Shively claims that the trial court erred by not instructing the jury that the affirmative defense of defense of dwelling applies to aggravated assault, a lesser included crime of aggravated assault on a law enforcement officer. The instruction given stated as follows:
“Mr. Shively has raised Use of Force in Defense of Dwelling as a defense. Unless the government disproves this defense beyond a reasonable doubt, you must find Mr. Shively not guilty of Murder in the Second Degree and Aggravated Assault on a Law Enforcement Officer.”
A party cannot claim error for an instruction if it failed to object, stating with specificity the grounds for the objection, before the jury retires to consider the verdict. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997). Shively failed to object to the instruction. As a matter of fact, the instruction given was exactly as Shively requested. Therefore, this contention by Shively is wholly without merit.
Sentencing Requirements
Lastly, Shively claims the trial court failed to comply with the sentencing requirements of K.S.A. 21-4607.
K.S.A. 21-4607(2) limits the imposition of fines on individuals sentenced to imprisonment to circumstances in which the defendant derived pecuniary gain from the illegal activity or situations where the court believes that the imposition of fines is adapted to deterrence of the crime or the correction of the offender. In determining the amount of the fine, the court must consider the financial resources of the defendant and the burden its payment will impose. K.S.A. 21-4607(3). The sentencing court is required to make findings under K.S.A. 21-4607(2) and (3). State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988).
Here, the court found that Shively “derived a substantial amount of money or asset ownership from the illegal drug sale activity.” The judge made no other findings regarding the imposition of the fines. The findings made by the judge are supported by the evidence, but they only address one prong of the statutory criteria for imposing fines. The court was also required to make findings about Shively’s financial resources and the burden such fines would impose on him.
In State v. McNett, 15 Kan. App. 2d 291, 292, 807 P.2d 171 (1991), this court had vacated the fines imposed and remanded the case for redetermination of the fines because the court failed to make adequate findings in accordance with K.S.A. 21-4607(2) and (3). This case presents a similar situation, requiring the imposition of fines to be vacated and remanding for redetermination under K.S.A. 21-4607.
Accordingly, Shively’s convictions are affirmed, but the issue of fines is remanded for findings as required in K.S.A. 21-4607. | [
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Pierron, J.:
Patrick C. Lynn appeals the district court’s granting of an injunction which placed restrictions on his ability to file new cases and other pleadings in the state courts of Kansas. We affirm.
On November 15,1996, Lynn was convicted for aggravated kidnapping, aggravated burglary, rape, and aggravated sodomy. Since that time he has filed multiple pro se original civil causes of actions in district court arising out of his convictions. His criminal conviction is presently on appeal.
On January 16, 1997, Lynn filed a presentencing habeas corpus action, Patrick C. Lynn v. State of Kansas, case No. 97C480, declaring he was being held unlawfully, was denied effective assistance of counsel, denied a fair trial, and was the victim of prose cutorial misconduct, a defective information, jury misconduct, and judicial bias and misconduct.
On March 19, 1997, Lynn filed Patrick C. Lynn v. Renee Lynn Anderson, case No. 97C3549, alleging that a witness in his criminal trial was responsible for tort damages to him for a car accident, unrelated to the criminal case, where Lynn alleged the defective brakes in the witness’ car caused him to have an accident.
On April 3, 1997, Lynn filed Patrick C. Lynn v. Edward Byrne, case No. 97C4388, alleging that Byrne, his court-appointed counsel, committed legal malpractice and fraud.
On April 3,1997, Lynn filed Patrick C. Lynn v. Ruth Dubowski, et al., case No. 97C4389, where he sued the wife of one of the jurors, his attorney, the district attorney, and the trial judge for violating his constitutional right to a fair trial.
On April 3, 1997, Lynn filed Patrick C. Lynn v. Lt. Simpson, et al., case No. 97C4391, accusing 19 separate law enforcement officials of violating a myriad of his constitutional rights during the investigation of the above-mentioned criminal case.
On April 9, 1997, Lynn filed Patrick C. Lynn v. Mark Chance, Byron Cerrillo and Michaela Sinkhorn, case No. 97C4697, alleging that his court-appointed attorney and investigators for the Johnson County Public Defender’s Office had committed legal malpractice and fraud.
On April 10, 1997, Lynn filed Patrick C. Lynn v. Carol Werth, case No. 97C4741, alleging Werth, the victim in the above-mentioned criminal case, was liable to him for damages resulting from libel and defamation, false arrest, fraud, invasion of privacy, perjury, filing a false police report, and outrageous conduct for her part in prosecuting him.
On April 15, 1997, Lynn filed Patrick C. Lynn v. Renee Lynn Anderson, case No. 97C4992, for Anderson’s alleged defamatory, libelous, and fraudulent actions, words, deeds, and conduct against him.
Apparently, parallel federal lawsuits have also been filed which are not subjects of this appeal.
On April 24, 1997, Lynn filed a petition in the Kansas Supreme Court for a writ of mandamus and motion for emergency injunctive relief against Judge McClain and the District Courts of Johnson County because Lynn had been notified that several of his petitions were deficient. The Kansas Supreme Court denied Lynn’s motion in case No. 97-78,919.
On May 27, 1997, the State of Kansas filed a petition seeking reasonable filing restrictions be placed on Lynn. The same day, the district court entered a restraining order imposing temporary filing restrictions. On June 27,1997, the district court conducted a hearing for a permanent injunction. Lynn was present by telephone from the Lansing Correctional Facility and was permitted to make arguments against the injunction. The court granted the permanent injunction. Later, the court modified the injunction to allow Lynn to file his papers using pen and ink as long as they were legibly written.
The filing restrictions placed on Lynn are summarized as follows:
1. Lynn must file an application for leave to file a petition or pleading, excluding a notice of appeal.
2. Lynn must attach a copy of the injunction as the first item of the document.
3. Lynn must include a copy of the proposed petition or pleading, a current list of all lawsuits currently pending or previously filed with the court or any other Kansas court involving the same claims or parties, and disposition of same if possible, all outstanding filing injunctions, and a notarized statement of his prison account.
4. Lynn must include a notarized affidavit certifying that the claims have not been previously asserted, the claims are not frivolous or made in bad faith, and the claims comply with all civil and appellate procedures and rules.
5. The administrative judge, or the judge’s designee, will then determine if the petition or pleading is lacking in merit, is duplicative, or is frivolous. If the petition or pleading is found to comply with the above requirements, Lynn will be granted leave to file it.
Lynn appeals the injunction.
“[T]he right of access to the courts is neither absolute nor unconditional [citation omitted] and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989). “The goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous [claims].” In re Sindram, 498 U.S. 177, 179-80, 112 L. Ed. 2d 599, 111 S. Ct. 596 (1991). No one, rich or poor, is entitled to abuse the judicial process. Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975).
We recognize that filing restrictions are a serious sanction and that litigiousness alone is not a sufficient reason to restrict access to the court. Tripati, 878 F.2d at 353. However, where, as here, a party has “engaged in a pattern of litigation activity which is manifestly abusive,” restrictions are appropriate. Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir. 1989). Abusive and repetitive filings cannot be allowed to strain the resources of the Kansas courts. See In re McDonald, 489 U.S. 180, 184, 103 L. Ed. 2d 158, 109 S. Ct. 993 (1989). However, restrictions on a person’s right to access to the courts must be carefully drawn and not be unnecessarily restrictive.
We have reviewed Lynn’s voluminous filings in this appeal and the record of the hearing conducted concerning the request for the injunction. A fair reading of the proceedings belovv, including Lynn’s own statements concerning his reasons for the filings, leads us to the conclusion that the main purpose of these suits is to aid Lynn in his appeal from his conviction. He states he wishes to gain information from them to achieve this purpose.
It also appears that Lynn is using the suits as a means to attempt to harass the victim, witnesses, police investigators, judges, and others involved in his case.
Based on the facts of this case, we find the filing restrictions to be reasonable. They are similar to those approved in In re Winslow, 17 F.3d 314, 316 (10th Cir. 1994). We find no abuse of discretion in the district court’s granting of the injunction against Lynn. He has appropriate additional access to the courts under these restrictions.
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Knudson, J.:
Henry Hartman appeals his conviction for driving while under the influence of alcohol (DUI), in violation of K.S.A. 1998 Supp. 8-1567(a)(2), arguing lack of a knowing and voluntary consent to take the breath test and sufficiency of the evidence because there was no testimony relating the test results to the alcohol concentration in his breath at the time of driving. We affirm after concluding Hartman’s consent was knowingly and voluntarily given and the State met its burden to prove Hartman operated his vehicle with an alcohol concentration in his breath of .176 in violation of K.S.A. 1998 Supp. 8-l567(a)(2).
Sometime between 2:42 and 2:45 a.m. on December 2, 1995, Officer Dennis Dinkel arrested Hartman for driving under the influence of alcohol. Hartman initially refused to take a breath test, indicating he believed a blood test would be more accurate. Hartman and Dinkel argued for a while over whether Hartman had the right to demand a blood test rather than a breath test. Eventually, the two agreed Hartman would submit to a breath test if Dinkel would transport Hartman to a nearby hospital for a blood test at Hartman’s expense. Dinkel directed dispatch to call the hospital in advance — the record does not show whether the dispatch personnel did so.
Hartman registered .176 on the Intoxilyzer 5000 at 3:43 a.m. Dinkel drove Hartman to the hospital. Emergency personnel refused to administer a blood test without a doctor’s consent, and Hartman was ultimately unable to obtain a test. Both Dinkel and Hartman testified they had expected the hospital to administer the test and were surprised when the hospital personnel refused — in fact, Hartman had obtained a similar blood test at the same hospital in the past. Hartman testified he would have refused to take the breath test had he known he would not receive the blood test.
Hartman moved to suppress the breath test results, arguing his consent was contingent upon Dinkel’s “misrepresentations” that Hartman would receive a blood test. As a result, an alleged false promise by law enforcement rendered Hartman’s consent involuntary and invalid.
Preliminarily, the State argues Hartman did not properly raise this issue to the trial court, barring our review. Upon review of the record, we find Hartman presented his argument to the trial court at the suppression hearing and lodged a contemporaneous objection at trial. Hartman properly preserved the issue, and we move to the merits.
Hartman urges us to invoke the exclusionary rule and declare the breath test inadmissible. Even if Hartman had suffered some sort of constitutional wrong, which we do not decide, he must show police misconduct caused the wrong before qualifying for application of the exclusionary rule. See Arizona v. Evans, 514 U.S. 1, 11, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1995). Where the exercise of the rule would not deter future police misconduct, use of the rule is not warranted. Therefore, we believe the core question in this matter is whether the police improperly misled Hartman into believing he would receive a blood test.
The record establishes both Dinkel and Hartman reasonably expected the hospital to administer the test. Dinkel did not “misrepresent” anything — he did what he could to help Hartman obtain a test. There is no improper police conduct to punish here. The United States Supreme Court has stressed that the exclusionary rule does not apply where police, as part of a basis for probable cause to search, reasonably rely upon information that subsequently turns out to be incorrect. See, e.g., Evans, 514 U.S. at 15-16 (computer report erroneously showed outstanding arrest warrant); Illinois v. Rodriguez, 497 U.S. 177, 187, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990) (police reasonably but mistakenly relied on third party for authority to enter residence). Finding a reasonable but mistaken belief here, shared by both the officer and the defendant, we uphold the trial court and reject Hartman’s issue.
Hartman also claims the State failed to prove he possessed a blood alcohol level of greater than .08 at the time he was driving. Hartman contends the State’s evidence only measured his blood alcohol concentration approximately 1 hour after he drove, not when he drove. Although Hartman couches this as a sufficiency of the evidence issue, we believe proper resolution first requires interpretation of K.S.A. 1998 Supp. 8-1567(a)(2). Thus, our standard of review is plenary. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 1998 Supp. 8-1567(a) states:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person’s blood or breath, as measuredwithin two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.” (Emphasis added.)
The clear language of an earlier version of this statute, K.S.A. 1985 Supp. 8-1567(a)(l), was interpreted as making the fact of driving with a blood alcohol concentration of .10 a crime without any further showing being required. State v. Zito, 11 Kan. App. 2d 432, 434, 724 P.2d 149, rev. denied 240 Kan. 806 (1986). This form of proscription is commonly referred to as a per se violation because it is not material whether the driver was incapable of safely driving a vehicle.
The per se violation of our DUI law is now embodied in K.S.A. 1998 Supp. 8-1567(a)(2), and the State is not required to prove the driver was incapable of safely driving a vehicle. This brings us to the specific question raised by Hartman — is a test reading of .08 or more that is taken within 2 hours sufficient evidence to support a per se violation of the DUI statute? The answer is “yes.”
Although not addressing the precise issue Hartman now raises, another panel of this court in State v. Pendleton, 18 Kan. App. 2d 179, 185, 849 P.2d 143 (1993), recognized that under 8-1567(a)(2), the State must show the test occurred within 2 hours of driving or attempting to drive. Additionally, there is a helpful discussion in Pendleton of 8-1567(a)(l) and blood or breath tests taken outside the 2-hour window of a per se violation.
The rule of strict construction of a criminal statute is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. Further, various provisions of a statute should be construed together with a view of bringing them into harmony. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235, rev. denied 265 Kan. 889 (1998). Applying these rules of interpretation to proscribed conduct under K.S.A. 1998 Supp. 8-1567(a), we conclude legislative intent is clear and unambiguous. Under subparagraph (a)(1), the State may use tests measured outside the 2-hour window as competent evidence to prove the defendant drove or attempted to drive while his blood alcohol level was .08 or higher. Conversely, a per se violation under subparagraph (a)(2) requires a blood alcohol test result of .08 or more as measured within 2 hours of driving or attempting to drive — no other evidence is required to establish a prima facie case. In other words, in a prosecution for a per se violation, the trier of fact may infer that the test result accurately measured the defendant’s blood alcohol concentration at the time the defendant was last operating or attempting to operate a vehicle. Consequently, we conclude the State met its burden to establish a prima facie case and the alcohol concentration test result of .176 is sufficient to support the juiy’s verdict.
Hartman does contend the evidence is insufficient to support his conviction based upon his expert’s testimony that a single test result is not scientifically reliable. This appears to raise a question of law as to the scientific validity of the State’s single test rather than a sufficiency of the evidence issue. In any event, we note K.S.A. 1998 Supp. 8-1001 does not require more than one test. Additionally, the jury was free to accept or reject the testimony of Hartman’s expert that a single test is not scientifically rehable. We conclude Hartman’s sufficiency of the evidence argument is without merit.
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Brazil, C.J.:
Robert M. Neeley, Bernice J. Kuckelman, and Mary Lou Pack (plaintiffs), có-trustees and beneficiaries of a revocable spendthrift trust (Trust) executed by their father Oren T. Neeley, brought this action to modify the terms of the Trust. They appeal from the decision of the trial court denying their petition to modify.
We affirm.
The facts are not in dispute and will not be reviewed except as necessary for purposes of this opinion. On appeal, the plaintiffs challenge the legal conclusions of the trial court. This court’s review of conclusions of law is unlimited. See Taliaferro v. Taliaferro, 260 Kan. 573, 579, 921 P.2d 803 (1996).
The plaintiffs first argue the trial court erred in denying their petition since all of the Trust beneficiaries and contingent beneficiaries agreed to the proposed modifications. They claim the modifications would not interfere with any material purpose of the Trust.
Pursuant to the terms of the Trust, the grantor reserved the right to modify or revoke the Trust. However, the Trust contained no other provisions pertaining to the modification or termination of the Trust. The plaintiffs correctly argue that under Kansas law, beneficiaries of a trust can compel the termination of the trust if all of the beneficiaries give consent and none of them is under an incapacity, except if continuance of the trust is necessary to carry out a material purpose of the trust. See McClary v. Harbaugh, 231 Kan. 564, 566, 646 P.2d 498 (1982) (quoting Restatement (Second) of Trusts § 337 [1957]).
The plaintiffs, however, do not wish to terminate the Trust; rather they wish to modify its terms. Kansas courts have not addressed the question of whether beneficiaries can compel modification of a spendthrift trust if all of the beneficiaries agree to the modifications. Normally, when faced with a lack of Kansas law, Kansas courts look to the Restatement of Trusts for guidance. See In re Estate of Sanders, 261 Kan. 176, 183, 929 P.2d 153 (1996); Harbaugh, 231 Kan. at 566.
Restatement (Second) of Trusts § 338 (1957) provides:
“(1) If the settlor and all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the termination or modification of the trust, although the purposes of the trust have not been accomplished.”
Comment (a) to § 338 states:
“If the settlor is dead, the consent of his heirs or personal representatives is not sufficient to justify the termination of the trust under the rule stated in this Section. The rule is not applicable to trusts created by will, or to trusts created inter vivos if the settlor has died.”
Comments (d) and (g) to § 338 state the following:
“d. Spendthrift trust. Although by the terms of die trust or by statute the interest of one or more of the beneficiaries is made inalienable by him, if all of the beneficiaries and the settlor, none of them being under an incapacity, consent to terminate the trust, the trust will be terminated, although the beneficiaries without the consent of the settlor could not compel the termination of the trust.
“g. Partial termination of trust. If the settlor and all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the terminat'on of the trust as to a part of the trust property, although the purposes of die ti ust have not been accomplished and the beneficiaries without the consent of the settlor could not compel the termination of the trust.”
Comment (h) to § 338 specifically discusses the modification of a trust. The comment provides:
“If the settlor and all of die beneficiaries of a trust consent and none of them is under an incapacity, they can compel die modification of die trust.”
“. . . The restraint on the alienation of the interest by die beneficiaiy can be removed by the consent of die beneficiary and of the settlor.”
The requested modification would frustrate the purpose of the spendthrift clause contained in the Trust. Normally, an irrevocable spendthrift trust can be modified if the settlor and all the beneficiaries agree to the modification although the purposes of the trust have not been accomplished. Here, Oren reserved the right to modify and terminate the Trust. Once he died, however, the Trust became irrevocable and unmodifiable, and the consent of all the beneficiaries is insufficient to modify the Trust. Cf. Musick v. Reynolds, 798 S.W.2d 626, 629 (Tex. App. 1990) (noting irrevocable spendthrift trust can be modified if settlor is alive and both settlor and all beneficiaries consent, and there is no incapacity to consent by any party); Hein v. Hein, 214 Mich. App. 356, 359, 543 N.W.2d 19 (1995) (noting comments to Restatement of Trusts § 338 indicate irrevocable spendthrift trust may be terminated when the settlor and the beneficiaries consent).
The plaintiffs also argue an unforseen change of circumstances frustrated the purpose of the Trust. They contend it was unforeseeable that the principal of the Trust would generate income that would exceed distributions and such growth thwarted Oren’s intent that the entire principal be distributed to his three children during their lifetimes. The plaintiffs argue the payment of taxes on undistributed income and the possibility the Trust corpus might escheat to the State constitutes waste and the trial court erred in failing to alter the terms of the Trust to prevent the waste.
The plaintiffs do not argue the Trust was ambiguous requiring the application of rules of construction or argue the Trust should be rescinded or reformed on account of fraud, duress, undue influence, or mistake. Rather, their argument focuses on the financial growth of the Trust which allegedly defeats its purpose.
The trial court noted the general purpose of the Trust, as indicated by its plain and unambiguous language, was to place the grantors assets under the control of someone other than the plaintiffs and to protect their interests from creditors. After a careful review of the language contained in the Trust, we agree with the trial court’s conclusion. The primary purpose of the Trust is not frustrated by the growth of the funds of the Trust, and implementing the suggested modifications would not further the intent and purpose of the grantor.
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Gernon, J.:
Joan Coffman Jones appeals a summary judgment ruling in favor of Automobile Club Inter-Insurance Exchange (AAA). Jones sought a recovery for underinsured motorist damages.
Jones was a passenger in an automobile driven and owned by her son-in-law, Terry Burris. The Burris vehicle was struck from behind by an automobile driven by Alvin Barrett. No one disputes that Barrett was responsible for the collision and the injuries. Three other people were injured.
Barrett’s liability insurance limited recovery to $25,000 per person and $50,000 per occurrence. Barrett’s insurance paid $7,000 in damages to the passenger in his car, leaving $43,000 available under his $50,000 per occurrence limit for the occupants of the Burris car. Jones and the Burrises settled with Barrett’s insurance for the remaining $43,000 and divided this amount among themselves. Jones received $7,826, while Terry Burris received $31,261 and Jones’ daughter, Everetta Burris, received $3,913.
Jones then sought payment from AAA under her underinsured motorist policy, which had limits of $50,000 per person and $100,000 per occurrence. The parties agreed that Jones incurred $20,682.15 in damages as a result of the accident.
The trial court ruled that Jones had failed to qualify for under-insured motorist coverage because her damages were íess than the per person coverage limit under Barrett’s policy. Jones appeals.
The statute involved here that we are required to interpret is K.S.A. 40-284(b), which states:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” (Emphasis added.)
Both sides rely on State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 778 P.2d 370, rev. denied 245 Kan. 786 (1989), for support. Jones argues that this court’s decision in Cummings implies that the per occurrence liability limit determines when an insured can resort to underinsured motorist coverage. AAA, on the other hand, argues that Cummings based its two-part test on the per person liability limit.
Cummings established a two-part test for determining when underinsured motorist coverage is available. This test states that the tortfeasor’s liability coverage must be less than the claimant’s liability coverage and the claimant’s damages must exceed the tortfeasor’s liability coverage. 13 Kan. App. 2d at 639. The test does not establish whether the per occurrence or per person liability limit applies. Therefore, Cummings is not dispositive on this issue.
We must examine the legislative intent regarding K.S.A. 40-284(b).
The fundamental rule of statutory construction is that the intent of the legislature governs. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993). The legislature’s purpose in mandating that insurance companies offer underinsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility legislation and compulsory insurance legislation. Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 215, 824 P.2d 955 (1992).
Underinsured motorist coverage is intended to provide compensation for innocent persons suffering damages as a result of the wrongful conduct of negligent motorists who cannot be made to respond in damages and whose insurance is insufficient to pay the damages. 250 Kan. at 215. As remedial legislation, the uninsured and underinsured motorist statutes should be liberally construed to provide broad protection to the insured against all damages resulting from injuries sustained by the insured that were caused by an automobile accident and arose out of the ownership, maintenance, or use of the insured motor vehicle. 250 Kan. at 215.
When interpreting a statute, the court should give words in common usage their natural and ordinary meaning. Kilner, 252 Kan. at 682. The legislature did not specify the per person liability limit or the per occurrence liability limit in K.S.A. 40-284(b). Instead, the legislature used the word “limits,” rather than “limit.” By using the plural, the legislature referred to more than one limit. Accordingly, either the per person or the per occurrence limit may apply. Whether the per person or the per occurrence liability limit applies will depend on which limit impairs the insured’s ability to receive compensation from the other motorist.
Here, four individuals were injured as a result of this single accident. Each of these individuals could not have received the full $25,000 available under Barrett’s per person liability limit because his per occurrence liability limit was $50,000. A party unrelated to Jones settled with Barrett’s insurance for $7,000 before Jones and the Burrises made a claim. Jones and the Burrises jointly settled with Barrett’s insurance for the remaining $43,000. As family members, Jones and the Burrises decided to distribute the shared settlement among themselves. Jones received $7,826 from this settlement, while Terry Bums received $31,261 and Everetta Burris received $3,913.
The problem we see in this type of multiple individual injury and group settlement is that, without a determination factually of the extent of the actual damages of each of the injured, there could be a potentially collusive distribution of a settlement. Such a result should not be allowed and certainly is not intended by the legislature.
We remand this matter to the trial court for further findings regarding the actual damages to Terry Burris and Everetta Burris. Once those damages are determined, the district court is directed to determine each person’s pro rata share of the $43,000 settlement. Jones’ claim against AAA should be calculated as the difference between her pro rata share of the settlement and the total value of her damages.
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Marquardt, J.:
Larry Jackson, a student at Hamilton Middle School in Wichita, sustained a compound fracture of his right forearm while using a springboard in the school gymnasium.
The district court granted Unified School District 259’s (school) motion for summary judgment. Jackson and his mother, Virgie Essien, (Jackson) appeal.
On December 7, 1994, after the required physical education class activities had concluded, the students asked Joseph Belden, the physical education teacher, for permission to use the springboard to touch the rim of the basketball goal. This was not a required activity. Even though students had been engaging in this activity in the gymnasium for approximately 20 years before Jackson’s injury, no one had ever been injured. After his injury, Jackson sued the school for negligence, as well as gross and wanton negligence. The school filed a motion for summary judgment, claiming immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., based on K.S.A. 75-6104(e) and (o). The ¿strict court granted the school’s motion, focusing on the “recreational use” exception in subsection (o). By definition, school districts are covered under the KTCA. K.S.A. 75-6102(b).
The district court found that there was no genuine issue as to any material fact as contained in the parties’ statement of facts. Summary judgment is appropriate when there is no genuine issue as to any material fact. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, Syl. ¶ 2, 955 P.2d 1189 (1998). Even though Jackson alleges that there were disputed material facts, his argument focuses on interpretation of the statute and he cites no facts that were in dispute. Summary judgment was appropriate. Interpretation of the statute remains an issue. “Interpretation of a statute is a question of law, and [an appellate] court’s review is unlimited.” Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
K.S.A. 75-6104 states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(e) any claim based upon the exercise of performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved;
“(o) 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.”
Jackson argues that the governmental immunity exception in K.S.A. 75-6104(o) does not apply to his case because the school gymnasium is not “public property” used as a “park, playground or open area” for recreational purposes. The KTCA does not provide definitions for any of these terms.
Under the KTCA, governmental liability is the rule and immunity is the exception. Lanning v. Anderson, 22 Kan. App. 2d 474, 478, 921 P.2d 813, rev. denied 260 Kan. 994 (1996). In order to avoid liability for ordinary negligence, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions in K.S.A. 75-6104. Barber v. Williams, 244 Kan. 318, 320, 767 P.2d 1284 (1989). Even though Jackson sued the school claiming gross and wanton negligence, he admitted during oral argument before this court that the actions of the school did not rise to the level of gross and wanton negligence. In addition, he did not brief the issue of gross and wanton negligence; therefore, that issue is not before this court.
First, Jackson argues that the school gymnasium is not public property because “public property” means a public place. Jackson contends that the gymnasium is not public because there are times when “[a]U of the doors into the gymnasium are routinely locked to prevent the public from entering without permission.”
The Kansas Supreme Court has held that a park remains “public property” even though “the public is excluded from the field while games are in progress; that the field may then be used only by those persons playing on the league teams; and that the field thus loses its public character and becomes semi-private.” Bonewell v. City of Derby, 236 Kan. 589, 592, 693 P.2d 1179 (1984). In Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 390, 836 P.2d 1222 (1992), this court found that use restrictions, in the form of reservations and greens fees, do not change the nature of property from public to private. See also Gonzales v. Board of Shawnee County Comm'rs, 247 Kan. 423, 428, 799 P.2d 491 (1990) (public property exists where users have to pay a fee before entering a swimming beach).
The statutory language does not require that a facility must be open to the public 100 percent of the time to qualify as public property. To hold that the gymnasium is not public property would require this court to add a limitation not included in the statute. Even though the school uses the gymnasium for classes, during which time the public does not have access, such restriction does not change the nature of the property from public to private. Thus, we hold that a school gymnasium is public property for purposes of K.S.A. 75-6104(o).
Jackson contends that the terms “park, playground or open area for recreational purposes” apply only to outdoor locations and do not include a gymnasium. Parks and playgrounds are commonly understood to be places out of doors. The question remains, is an “open area for recreational purposes” limited to recreation out of doors?
The only reported Kansas cases that have applied the recreational use exception involved activities that took place out of doors. See Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990) (plaintiff injured while running from football practice field to locker room); Boaldin v. University of Kansas, 242 Kan. 288, 747 P.2d 811 (1987) (plaintiff injured while sledding on the Kansas University campus); Lee v. City of Fort Scott, 238 Kan. 421, 710 P.2d 689 (1985) (plaintiff fatally injured while riding a motorcycle on a golf course); and Lanning v. Anderson, 22 Kan. App. 2d 474 (plaintiff injured while standing on a field during track practice).
Nichols and Lanning applied 75-6104(o) to injuries occurring during a school activity or on school property. In both cases, the courts held that governmental immunity exists for any claim for negligently caused injuries whether the activity is supervised or unsupervised. Nichols, 246 Kan. at 95; Lanning, 22 Kan. App. 2d at 483. Nichols and Lanning involved extra-curricular activities; however, neither of the injuries took place in a gymnasium.
The statutory language does not limit its application to activities that take place outside. When a statute is plain on its face, the court must follow the intent of the legislature rather than deter mining what the law should be. Nichols, 246 Kan. at 95. From the language of the statute, we must assume that if the legislature intended to limit the exception to activities that take place outside, it would have done so. We hold that K.S.A. 75-6104(o) is not limited to activities that take place out of doors. Jackson’s argument limiting the application of the statute to out-of-doors activities is without merit.
Jackson next argues that the gymnasium was not being used for recreational purposes at the time of his accident. Jackson was in the gymnasium for a physical education class. After the required physical education class activities had concluded, one of the students asked the teacher if they could use the springboard to touch the basketball goal. Jumping on the springboard was recreational.
Because the KTCA does not define the term “open area for recreational purposes,” and looking at the courts’ holdings in Nichols and Lanning, we hold that a school gymnasium falls within the definition of an open area for recreational purposes in K.S.A. 75-6104(o).
Even though there is no Kansas case on point, other jurisdictions have granted governmental immunity from liability to schools and school personnel where an injury was sustained during a physical education class. See Truelove v. Wilson, 159 Ga. App. 906, 285 S.E.2d 556 (1981); Cody v. Southfield-Lathrup School District, 25 Mich. App. 33, 181 N.W.2d 81 (1970); and McDonell v. Brozo, 285 Mich. 38, 280 N.W. 100 (1938).
Notwithstanding our holding on the application of K.S.A. 75-6104(o) to the facts of this case, K.S.A. 75-6104(e) provides immunity for discretionary functions of a governmental entity or employee acting within the scope of the employee’s employment. In this case, the district court focused on the application of subsection (o) in its decision; however, the school argued in its motion for summary judgment that K.S.A. 75-6104(e) also grants them immunity. If the teacher’s actions are discretionary, there is no liability for ordinary negligence.
Discretion, when applied to public functionaries, means “acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.” Black’s Law Dictionary 466 (6th ed. 1990). In Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985), the Supreme Court held:
“Discretion implies the exercise of discriminating judgment within the bounds of reason. [Citation omitted.] It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and that action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice.”
Even if subsection (o) does not apply, “[t]he discretionary function exception is applicable ... when no clearly defined mandatory duty or guideline exists which the government agency is required to follow.” Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 (1996). There was no clearly defined mandatory duty or guideline for the teacher’s actions in dealing with students in the physical education class. The teacher’s decision on whether to allow the students to use the springboard required that he exercise discriminating judgment; therefore, his actions fall squarely within the exception in K.S.A. 75-6104(e). A school or a school employee exercising a discretionary function within the scope of the employee’s employment is immune from liability for ordinary negligence if a student is injured and there is no clearly defined mandatory duty or guideline. K.S.A. 75-6104(e).
Jackson’s final argument is that even if K.S.A. 75-6104(o) applies, the school district still had a duty to protect Jackson while he was on school property. This argument was considered and rejected in Lanning. The immunity provided for in K.S.A. 75-6104(o) relieves the school of liability where there is no gross and wanton negligence. Thus, Jackson’s argument fails.
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Marquardt, J.:
John E. Schwartz appeals the trial court’s decision granting summary judgment to Dr. Abay.
The facts of this case are largely undisputed. Dr. Abay performed back surgeries on Schwartz in May 1995, on January 10, 1996, and June 10, 1996. Schwartz signed a consent for a “right L4-5, L5-S1 widening laminectomy excise recurrent disc interbody fusion right” to be performed on June 10,1996. After the surgery, Dr. Abay admitted that he had mistakenly performed a discectomy and fusion at L3-4 and removed “at best . . . 60 to 70 percent of the disc.”
Schwartz filed a petition alleging that Dr. Abay committed medical malpractice. Schwartz then filed a motion for summary judgment relating to the issue of liability. Judge C. Robert Bell granted Schwartz’ motion. Schwartz then filed a motion for voluntary dismissal so that he could refile the petition and provide notice to the Kansas Health Care Stabilization Fund. The motion was granted, and the case was dismissed without prejudice.
Schwartz refiled his petition on August 27, 1998. On October 27, 1998, Judge Timothy G. Lahey signed an agreed order which stated: “The Order of Judge Robert C. Bell granting Plaintiff Summary Judgment as to die issue of liability only in Case No. 98 C 73 is equally effective and binding as to the parties on the issue of liability in the instant case.” On December 22, 1998, Judge Lahey signed a pretrial conference order which stated: “The issue of liability has been determined adverse to the Defendant by virtue of the Order entered following Plaintiff s Motion for Summary Judgment herein. The remaining issue is one of damages sustained by the Plaintiff by reason of the negligent performance of the surgical procedure by Defendant.”
On December 23, 1998, Dr. Abay filed a motion for summary judgment. Dr. Abay stated that Schwartz was unable to provide evidence that “Dr. Abay’s actions or inactions in any way caused the damages he is alleging” and “fails to offer expert evidence that he has, in fact, suffered damages.” On January 21, 1999, Judge D. Keith Anderson found “that a finding of liability does not subsume the issue of causation in addressing the issue of common knowledge exception versus the need for expert medical testimony in establishing causation” and granted summary judgment to Dr. Abay. Judge Anderson also stated, “[Tjhis case is not a situation that a jury can figure out on their own.” Schwartz timely appeals.
Schwartz maintains it was error for Judge Anderson to overturn the summary judgment orders of Judges Bell and Lahey, who granted him judgment on the issue of liability.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. 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. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). Summary judgments are to be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998).
The summary judgment on the issue of liability left the issue of damages undecided. See K.S.A. 1998 Supp. 60-254(a); see also Gillespie v. Seymour, 263 Kan. 650, 656, 952 P.2d 1313 (1998) (leaving open the issue of punitive damages prevents a judgment from being final). Since the order concerning Schwartz’ motion for summary judgment adjudicated fewer than all of the issues, the order was subject to revision at any time before a final judgment was entered. See K.S.A. 1998 Supp. 60-254(b).
Even though the order granting summary judgment to Schwartz on the issue of liability was subject to revision at any time before a final judgment was entered, granting summary judgment to Dr. Abay is inconsistent with summary judgment being granted to Schwartz. Part of the problem is that three different trial judges issued orders which granted judgment in favor of both parties. Judge Anderson did not revise the orders of Judges Bell and Lahey; he reversed them. The two judgments are inconsistent and, therefore, cannot stand. See McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 290, 886 P.2d 895 (1994), rev. denied 256 Kan. 995 (1995).
In order to prevail in a medical malpractice action in Kansas, a plaintiff must prove the following three elements: (1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient. Heany v. Nibbelink, 23 Kan. App. 2d 583, 586, 932 P.2d 1046 (1997).
Dr. Abay asserts that Schwartz cannot prevail without expert testimony. Schwartz claims he is not required to present expert testimony because Dr. Abay admitted liability and, therefore, the common knowledge exception applies.
Dr. Abay admitted he had a doctor-patient relationship with Schwartz. Dr. Abay also admitted that he operated on the wrong disc in Schwartz’ back, and that by doing so, he breached the relevant standard of care. Schwartz argues that despite the fact that the third surgery relieved his leg pain, his functional ability was decreased to such an extent that he was fired from his employment.
Even though expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician, this “rule does not give the members of the medical profession a monopoly on common sense, and the rule is limited to those matters clearly within the domain of medical science.” Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978). Where the medical procedures employed are so patently bad that negligence or lack of skill is manifest to a lay observer, or other acts complained of could be regarded as negligent by applying the common knowledge and experience of a lay observer, the common knowledge exception applies. Hiatt v. Groce, 215 Kan. 14, Syl. ¶ 2, 523 P.2d 320 (1974).
The common knowledge exception most often applies to cases where a physician leaves a sponge or surgical instrument in the patient after surgery. Webb, 223 Kan. at 490. Kansas courts have applied the doctrine in a variety of situations. See Hiatt, 215 Kan. at 14 (no expert testimony needed where nurse failed to call doctor when woman began labor and suffered severe vaginal lacerations). See also Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P.2d 472 (1957) (no expert testimony needed where a surgical sponge was left in patient after surgery, which resulted in severe pain and a second operation); Bernsden v. Johnson, 174 Kan. 230, 238, 255 P.2d 1033 (1953) (no expert testimony needed where physician left a plastic tube in patient’s throat for 36 hours after surgery, resulting in severe pain, hypoxia, and hoarseness).
Dr. Abay admitted he committed malpractice by operating on the wrong disc. The consent form, signed by Schwartz was a consent to fuse his spine at the L4-5 and L5-S1 levels. Schwartz does not need a medical expert to say that Dr. Abay deviated from the standard of care. Dr. Abay operated on the wrong disc and took out 60% of a healthy disc, but left the disc he had diagnosed as the problem in Schwartz’ back. If Dr. Abay removed the problem disc, he made the wrong diagnosis. No matter how it is viewed, it does not take a medical expert to determine that Dr. Abay deviated from the standard of care. The common knowledge exception applies to this case.
Dr. Abay argues that Schwartz must show “not only Dr. Abay’s negligence, but also that the negligence caused the alleged injury.” According to Webster’s Ninth New Collegiate Dictionary 217 (1991), “cause” is “something that brings about an effect or a result . . . a person or thing that is the occasion of an action or state; esp: an agent that brings something about.” Black’s Law Dictionary 221 (6th ed. 1990), defines cause as “[something that precedes and brings about an effect or a result .... An agent that brings something about.” Dr. Abay admitted that he was the person that caused the surgery to be performed on the wrong vertebrae. It is a mystery how Dr. Abay successfully argued to the district court that his negligence did not cause him to operate on the wrong vertebrae. Confusion was created when Dr. Abay suggested that a finding of liability did not subsume the issue of causation. Liability goes further than cause. In Black’s Law Dictionary 914, “liability” is defined as “a broad legal term ... of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely.” Dr. Abay admitted the injury, which is a separate and distinct issue from the issue of what damage was caused.
During pretrial depositions, Schwartz admitted that his leg pain was gone after the third surgery. However, he claimed that the Functional Capacity Evaluations revealed that his capacity to return to physical labor was reduced from “medium” work down to the next lower capacity of “light-medium.” As a result of this rating, Schwartz’ employer could no longer provide him with an accom modated position, and his employment was terminated. The trial court did not consider Schwartz’ Functional Capacity Evaluations in granting Dr. Abay summary judgment. Dr. Abay states that admission of the evaluations was properly denied because, as evidence, they were not in compliance with K.S.A. 60-256. Notwithstanding this statement, Dr. Abay attached copies of letters from two doctors to his motion for summary judgment that were not affidavits and, therefore, did not comply with the statute.
Schwartz was injured by the loss of a healthy disc. The issue is, what were his damages? The issue of damages is a fact question for a trier of fact. Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 343, 757 P.2d 251 (1988).
The trial court erred by granting Dr. Abay’s motion for summary judgment. The issue of causation, when a physician admits he operated on the wrong vertebrae and removed 60% of a healthy disc, comes within the common knowledge exception. Expert testimony is not required.
Reversed and remanded. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an interlocutory appeal by the state from an order suppressing evidence obtained under a search warrant.
The search warrant was issued as the result of almost a month of investigative work by the Wichita Police Department narcotics section. Detective John Hayworth made contact with a young couple who offered to obtain drugs for him, unaware that he was a police officer. After Hayworth made several purchases from the couple he attempted to determine the source of their supply. His investigation led him to believe their drugs came from a duplex at 1162 North Richmond in Wichita.
On January 12, 1976, Hayworth made application for a search warrant for the duplex. The application stated the affiant believed an unknown quantity of cocaine and United States currency, listed by serial numbers, were located at 1162 North Richmond. In addition, the application revealed the following relating to probable cause:
“The affiant is a detective in the Wichita Police Department, assigned to the Narcotics Section.
“The affiant has purchased various drugs from one Gary Hollingsworth on four separate occasions within the last two weeks. On 1-3-76, Gary Hollingsworth, who had previously agreed to sell affiant some cocaine, met the affiant at the Indian Hills Shopping Center to consummate the purchase. This meeting occurred during the evening hours. Gary Hollingsworth, after taking the affiant’s purchase money, told affiant that he was then going to get the cocaine at ‘his man’s’ house. Hollingsworth then left. From that point Hollingsworth was surveilled by other police officers and the police helicopter. Hollingsworth was observed driving to North Richmond and was observed entering the north half of a duplex on the eleven hundred block of Richmond. I later determined that the address of this duplex unit is 1162 North Richmond. Hollingsworth was then observed leaving the duplex and returning to the Indian Hills Shopping Center. Hollingsworth was not observed stopping at any other locations. When Hollingsworth returned to the Center, he delivered one gram of cocaine to the affiant.
“The affiant later determined, through an independent source, that one Garth Morgan resides at 1162 North Richmond. On one of the three other occasions that affiant has purchased drugs from Gary Hollingsworth the affiant asked Hollingsworth how much an ounce would cost. Hollingsworth went to a phone and made a phone call. When the other party answered, Hollingsworth asked if ‘Garth’s’ there. The other party evidently said no, because Hollingsworth then asked if ‘Ferrell’ was there. The affiant also is aware that one Ferrell D. Houser was arrested on 12-23-75 and gave his address as 1162 North Richmond, for possession of marijuana and paraphernalia.
“On January 12,1976, the affiant talked with Gary Hollingsworth’s wife on the telephone for the purposes of purchasing more drugs. When the affiant asked her about the cocaine, she asked another person in the room with her, ‘have you talked to Garth today?’ Both Hollingsworths have told the affiant that they are expecting a quantity of cocaine to be delivered today. In another phone conversation on the same day, Gary Hollingsworth told the affiant that he had talked to ‘Garth’ and that Garth said he could have four ounces Wednesday afternoon, 1-14-76.
“As a result of the telephone conversation with Mrs. Hollingsworth, the affiant arranged to purchase a quantity of cocaine from the Hollingsworths. The affiant intends to use the currency listed elsewhere in this application and in the search warrant to make this purchase. The affiant believes that this currency, the serial numbers of which are listed on the search warrant, will be taken to 1162 North Richmond by one of the Hollingsworths.
“The affiant believes that probable cause exists to believe that cocaine will be found at 1162 North Richmond and that the listed currency will also be found at that address.
“WHEREFORE he prays that a search warrant be issued, according to law, to search for, apprehend and seize, the above described items, if any there be, holding them to be dealt with according to law.”
As a result of the application, a search warrant for the north half of the duplex known as 1162 North Richmond was issued by Judge Owen Ballinger of the Sedgwick County Court of Common Pleas.
On January 14, 1976, Hayworth contacted Gary Hollingsworth and arrangements were made to meet the next day to purchase the cocaine described in the search warrant and affidavit. The next evening the two men met and negotiated the sale of one-half ounce of cocaine for $750. Hayworth gave Hollingsworth the money and Hollingsworth left to pick up the cocaine. The police followed him to 1162 North Richmond. Hollingsworth returned to deliver the cocaine to Hayworth and was arrested. Other officers converged on the duplex and executed the warrant; whereupon, they recovered a large quantity of cocaine, other drugs and the marked money.
An information was filed against the five defendants in this action charging them with possession and sale of cocaine, possession of cocaine with the intent to sell, possession of amphetamines, possession of marijuana, possession of marijuana with the intent to sell and conspiracy to sell cocaine. The defendants filed a motion to suppress the evidence obtained as a result of the search at 1162 North Richmond. After a hearing on the motion, the trial court suppressed the evidence.
It is an elementary rule of law that a search warrant may not issue except on a showing of probable cause. The warrant must particularly describe the person, place or means of conveyance to be searched and the things to be seized. (K. S. A. 1976 Supp. 22-2502; State v. Gordon, 221 Kan. 253, 559 P. 2d 312.) Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause. (Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; Nathanson v. United States, 290 U. S. 41, 78 L. Ed. 159, 54 S. Ct. 11; State v. Hart, 200 Kan. 153, 162, 434 P. 2d 999.)
“Probable cause” to issue a search warrant is like a jigsaw puzzle. Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance. (K. S. A. 1976 Supp. 22-2502.) In State v. Lamb, 209 Kan. 453, 497 P. 2d 275, this court explained:
“Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. (Henry v. United States, 361 U. S. 98, 102, 4 L. Ed. 2d 134, 80 S. Ct. 168 [1959].) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information led a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. (Draper v. United States, 358 U. S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 [1959].) The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. (Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 [1963].)
“Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U. S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 [1925].)
“Evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant.” (p. 467.)
The burden is on the prosecution to show a search and seizure was lawful and supported by probable cause (K. S. A. 22-3216 [2]; State v. Youngblood, 220 Kan. 782, 785, 556 P. 2d 195); but once a search warrant has been issued, supported by an affidavit which recites facts sufficient to find probable cause, prima facie evidence of a lawful search and seizure is established. (79 C. J. S., Searches and Seizures, Sec. 98, pp. 917-18. See also, State v. Yates, 202 Kan. 406, 449 P. 2d 575; State v. Emory, 193 Kan. 52, 391 P. 2d 1013, cert. denied, 379 U. S. 906, 13 L. Ed. 2d 179, 85 S. Ct. 200.)
The question in this case is whether the search warrant application shows on its face probable cause to believe a crime had been or was being committed on January 14, 1976, and that evidence, fruits or instrumentalities of that crime were at 1162 North Richmond. We hold there was probable cause.
The affidavit contained information that four previous drug sales had been made to affiant. On one occasion a sale was made whereby affiant gave money to the seller and the seller made a nonstop trip to 1162 North Richmond, returning with cocaine. It was later determined the seller was dealing with persons named “Garth” and “Farrell.” Affiant knew a person named Farrell D. Hauser lived at 1162 North Richmond and had a recent connection with drugs.
Evidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location; however, where an affidavit gives evidence of activity indicating protracted or continuous conduct at a particular location and that evidence provides a reasonable basis to infer drugs are still present, probable cause may exist. (United States v. Jones, 500 F. 2d 1085 [4th Cir. 1974]; United States v. Thompson, 495 F. 2d 165 [D.C. Cir. 1974]; Commonwealth v. Vynorius, _, Mass. _, 336 N. E. 2d 898 [1975]; 100 A. L. R. 2d Anno., Search Warrant—Affidavit—Sufficiency, Sec. 7, pp. 542-43.) A police officer may also add to other evidence the fact the location to be searched is occupied or frequented by known narcotics users or sellers. (United States v. Harris, 403 U. S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075; Jones v. United States, 362 U. S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725; United States v. Watts, 540 F. 2d 1093 [D.C. Cir. 1976]; People v. Hanlon, 36 N. Y. 2d 549, 369 N. Y. S. 2d 677, 330 N. E. 2d 631 [1975].)
In United States v. Hodge, 539 F. 2d 898 (6th Cir. 1976), federal drug officers participated in arrangements for a large heroin sale to be made to an informant. During two telephone conversations, defendant Hodge discussed details of the sale with the informant, unaware the conversations were overheard by federal officers. The sale was to take place in Detroit at a certain time and place. When the defendant and the informant met, arrangements were made for defendant to get a sample of the drug. As in our case, officers followed the defendant to a certain address and, without stopping elsewhere, he returned to the informant with the heroin. The next morning the informant and defendant met and the sale was completed. Agents arrested defendant Hodge. A search warrant was obtained for the residence where the defendant picked up the heroin sample. The search uncovered a quantity of money, plastic bags having traces of heroin, and other items. The district court denied the defendant’s motion to suppress. On appeal, the Circuit Court of Appeals upheld the validity of the search warrant, stating probable cause existed to believe a quantity of heroin would be found at the residence because of defendant’s actions in obtaining the drug, his return with it, the fact he was under surveillance, and his statement that he could sell additional quantities of the drug.
The district court held the search warrant in the present case was invalid because its probable cause was based on future crimes or events and past drug sales which were “stale.” Probable cause to search must be based on crimes which have been or are being committed at the time the warrant is issued (K. S. A. 1976 Supp. 22-2502), and not on a belief that a crime may be committed in the future. Although we recognize this distinction in the statute, it is immaterial to this case. Based on the continuous course of past transactions which related to the duplex and its occupants, probable cause that drugs were stored there at the time the warrant was issued existed independent of any future event. While the possibility of a future sale would not create its own probable cause, it would lend support to the reasonable belief that drugs were still present and being stored at 1162 North Richmond. The past sales were not “stale” in light of the fact they revealed a protracted or continuous course of conduct. It is reasonable for a prudent man to believe that illicit drugs are stored at a location where recent sales have been made, and where known or suspected drug dealers are residing.
It is of no consequence that the police waited to execute the search warrant until they had reason to believe additional drugs would be present at the duplex. It also makes no difference that they waited until the marked money was taken to 1162 North Richmond in the last sale before they executed the warrant. Probable cause existed irrespective of the presence of the “buy” money. The time, manner and place of execution of a search warrant are governed by K. S. A. 1976 Supp. 22-2502, et seq. A search warrant must be executed within ninety-six hours from the time of issuance (K. S. A. 22-2506), but the exact time of execution within that period should be left to the discretion of the law enforcement officers.
A trial court should review applications for search warrants with common sense and in a realistic manner, realizing they are often drawn in haste and by nonlawyers. (United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741.) We believe in this case the trial court erred in sustaining the motion to suppress.
The judgment of the trial court is reversed and the case is remanded for further proceedings. | [
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