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Parks, J.:
This case arises out of the foreclosure of a number of lien claims against an oil and gas lease. The owner of the leasehold, DaMac Drilling, Inc., (DaMac) appeals from the rulings of the trial court upholding the validity of lien claims filed by Rex Hawkins, d/b/a Hawkins Oil Field Supply (Hawkins) and Geological Services, Inc., (Geological Services) and excluding the overriding royalty interest from foreclosure.
DaMac obtained its interest in the oil and gas lease, known as the Bergman Lease, by providing services and materials to the leasehold at the request of David Shoemake and Sigma Petroleum, Inc. In exchange for services rendered, DaMac obtained an assignment of the oil and gas lease which, in a separate lawsuit, was held to invest it with ownership free of any claim by Shoemake or Sigma Petroleum. However, the assignment of ownership to DaMac was subsequent to the reservation and recordation of an overriding royalty interest in favor of Toby Elster and C. Edward Wray.
At the same time that DaMac was judicially establishing its ownership claim to the Bergman Lease, foreclosure proceedings on the leasehold were initiated by one of several lien claimants in this suit. Of the liens claimed, DaMac challenged those of Geological Services and Hawkins. It contended that the lien of Geological Services was ineffective because it failed to itemize the services provided or to come within the purview of K.S.A. 55-207. Hawkins’ lien was challenged as lacking proper verification. DaMac also contended that the overriding royalty interest created in favor of Toby Elster and C. Edward Wray should be subject to foreclosure pursuant to K.S.A. 55-210. The trial court ruled against DaMac on all three points and DaMac appeals.
The first question presented is whether the trial court erred in upholding the validity of the lien claim of Rex Hawkins.
The provisions of K.S.A. 55-207 through 55-210 grant a statutory lien to persons who provide labor or materials in the development of an oil and gas lease. Similarities between K.S.A. 55-207 and K.S.A. 60-1101 have been recognized, and decisions concerning mechanics’ liens are controlling insofar as they are applicable. Adair v. Transcontinental Oil Co., 184 Kan. 454, 461, 338 P.2d 79 (1959); Fender Pipe & Supply, Inc. v. Jenkins, 5 Kan. App. 2d 101, 102, 612 P.2d 1253 (1980). Common to both the provisions creating the general mechanic’s lien and those creating the oil and gas lien is the requirement that the lien statement be verified. Cf. K.S.A. 60-1102 and 55-209. The oil and gas lien provision states that the statement should be verified by affidavit. If a promissory note was taken in evidence of the labor or materials provided, an itemized statement is not necessary.
The lien statement filed by Rex Hawkins was not verified by separate affidavit but included the following verification statement:
“IN WITNESS WHEREOF, this lien statement is signed and verified by Rex Hawkins, owner and authorized agent for the lien claimant, Hawkins Oilfield Supply, a Kansas Company. Further, that said Rex Hawkins is of lawful age, has read the above and foregoing and was first duly sworn upon his oath. Further that he is fully acquainted with all of the facts and conclusions set forth herein, and that they are true and correct to the best of his knowledge, information and belief; the claim is just, due, reasonable and unpaid.”
DaMac contends that this verification is defective such that no lien arose because it did not swear that the statement was true but stated that it was true to the “best of his knowledge, information and belief.” DaMac contends that this qualification of the lien claimant’s oath renders it an insufficient verification. Appellee Rex Hawkins responds by arguing that the revelation in the lien statement that it is filed by “Rex Hawkins d/b/a Hawkins Oilfield Supply” indicates that it was executed by a person having direct knowledge of the truth of the facts stated in the document so that it is in effect an absolute verification.
Recently, in Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 692 P.2d 397 (1984), this court considered whether a similar verification was sufficient to satisfy the requirements of the general mechanic’s lien law, K.S.A. 60-1102. Although this requirement is not stated in the identical manner as the verification requirement in K.S.A. 55-209, the substance and purpose of both provisions are similar enough that the Lewis case should control. Fender Pipe & Supply, 5 Kan. App. 2d at 102.
In Lewis, the court initially pointed out that verification of a lien statement is a necessary prerequisite to the creation of a valid lien. See also Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 636, 400 P.2d 707 (1965). Moreover, since the mechanic’s lien is an entirely statutory device, technical requirements dictated by the statutes as vital to a lien’s validity must be strictly met. The court then reviewed the historical meaning of a “verification” and concluded that a qualified verification which states that the lien statement and attached exhibits are true and correct to the best of the affiant’s knowledge and belief, without a showing that he had knowledge of the reported information, is insufficient. In reaching this conclusion, the court rejected the argument that the affiant’s status as a person doing business as a sole proprietorship was alone sufficient basis for concluding that the affiant had knowledge of the contents of the lien statement such that his qualified verification was equivalent to an absolute oath. The opinion discussed this argument and the showing which must be made if a qualified verification is to be sufficient, stating as follows:
“Despite the probable accuracy of plaintiffs claim of actual knowledge, neither the lien statement nor the verification indicates that plaintiff personally carried out the described work or had knowledge of the propriety of the charges. Thus, the only thing about plaintiff revealed in the lien statement which distinguishes his position from that of the affiant in Dorman [v. Crozier, 14 Kan. 224 (1875),] is his status as sole proprietor rather than agent of the business claiming the lien. If this distinction is sufficient to permit a qualified verification by plaintiff while an agent/affiant must swear to the truth absolutely, then it would have to be assumed that any person who operates a business as a sole proprietor has knowledge of the truth of the statements which would be made in a lien statement. The organizational basis of the lien claimant as a sole proprietorship rather than a partnership or corporation would determine the nature of the verification required to create a valid lien. In other words, the sole proprietor who filed a lien statement with a qualified verification would still have a valid lien even though the same verification when used by a partner or corporate officer would have to be found insufficient. The meaning of the word ‘verified’ in K.S.A. 60-1102 would then vary depending upon the status of the claimant filing the lien.
“On the other hand, if plaintiff s verification was acceptable not simply because of some presumed degree of knowledge but because of the actual knowledge demonstrated in subsequent deposition testimony, the door would be opened for curing a faulty verification by later testimony. Such a result would contradict those opinions which have concluded that an invalid lien statement may not be amended to make it valid. See, e.g., Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 651, 347 P.2d 438 (1959). It is the actual information contained within the verification or body of the lien statement which must indicate that a person with authority to do so swears to the truth of the statement itself.
“In sum, had plaintiffs statement included information evidencing his personal knowledge of the accuracy of the claims made, a qualified verification might have been acceptable. See Trane [Co. v. Bakkalapulo], 234 Kan. [348] at 352 [, 672 P.2d 586 (1983)]. Absent any indication that plaintiffs best knowledge and belief was the same as the truth, the ancient precedent dictates that a less than absolute verification is insufficient. This requirement is a prerequisite to an effective lien’s creation and such conditions on the mechanic lien’s validity must be strictly construed. Holiday Development [Co. v. Tobin Construction Co.], 219 Kan. [701] at 704-05 [, 549 P.2d 1376 (1976)].
“We adhere to the holding in Dorman and reaffirm that a verification stating that the lien statements and attached exhibits are true and correct to the best of the affiant’s knowledge and belief, without a showing that he had any knowledge of the subject, is insufficient. Thus, we agree with the trial court that the verification in this case was qualified and not the absolute verification required to satisfy K.S.A. 60-1102.” Lewis, 10 Kan. App. 2d at 101-02.
The body of the lien statement filed in this case does not reveal any basis from which it can be assumed that the affiant has personal knowledge of all of the facts stated such that his knowledge and belief is the same as the truth. The statement that the affiant is “fully acquainted with all of the facts and conclusions set forth” in the lien statement could arguably be an attestation of personal knowledge. However, an acquaintance with the facts is still not an absolute declaration of knowledge of the facts as true. Overall, the verification offered by Rex Hawkins appears to be no less qualified than that in Lewis and, therefore, no more effective. The fact remains that a verification is narrowly defined as an absolute oath to the truth of a statement.
We conclude that the verification in this case was insufficient. The trial court’s judgment is reversed insofar as it allowed attachment of a lien based on this lien statement.
The second issue raised on appeal is whether the trial court erred in upholding the validity of the Geological Services’ lien claim because the filed statement failed to properly itemize the services rendered or because the services fall outside those protected by K.S.A. 55-207.
K.S.A. 55-209 requires that the lien statement set forth “the amount claimed and the items thereof, as nearly as practicable.” However, the statute also states that if a promissory note has been given for the labor or materials, a copy of the note may be filed with the lien statement in lieu of an itemization of labor and material furnished. The lien statement filed by Geological Services included the following information from an invoice as the itemization of its claim:
Item Amount
“Geological Services for:
June 21 through' June 27, 1983 - 7 days $4,725.00
Less discount if paid by August 5, 1983 $1,575.00
$3,150.00
Expenses:
Motel -0-
Phone -0-
Misc. $18.55
Meals $67.20 85.75
Mileage: 230 Mi. 115.00 $3,350,75
IF NOT PAID BY AUGUST 5, 1983 THE AMOUNT DUE IS $4,925.75"
DaMac contends that the itemization is insufficient because it fails to list the geological services actually provided and the charges for each. Geological Services counters by contending that the required itemization need not be so specific when the person whose property interest is encumbered bargained for the labor provided. It contends that since the purpose of the requirement is to enable the leasehold owner to check on the accuracy of the claim, the intent of the statute is met by an invoice reflecting the prior agreement of the parties concerning the work to be provided and the fee to be paid.
The language in the current oil and gas mechanic’s lien statute is identical to the phrasing in the old repealed general mechanic’s lien statute. R.S. 1923, 60-1402. A check of the old mechanic’s lien cases reveals that Geological Services’ argument has some merit. In Holtzen v. Dunn, 176 Kan. 206, 269 P.2d 1042 (1954), a statement showing the contract price for the subcontractor’s work was $1,600, that extra colored fixtures were furnished at the request of the owner amounting to $157.10 and that $693.84 had been paid such that a balance of $1,063.26 was claimed, was found to be a sufficient itemization under the statute. The court relied on the following rule laid down in Lumber Co. v. McCurley, 84 Kan. 751, Syl. ¶ 2, 115 Pac. 590 (1911):
“A subcontractor’s lien statement for material furnished and labor performed under a completed contract for a stipulated gross price is sufficiently itemized which gives the contract price, and extra items stated separately.”
This rule was originally adopted to distinguish the case in which the work of the lienor was contracted for at a stipulated price but was not completed when the lien statement was filed. In such a case, mere recitation of the contract price, extras and payments made was held not to be itemization of the claim “as nearly as practicable.” Nixon v. Cydon Lodge, 56 Kan. 298, 303, 43 Pac. 236 (1896). Thus, it is the completion or incompletion of the job which was held to be crucial to determining whether an itemization which stated the stipulated gross price instead of listing the actual labor performed and material provided would be adjudged sufficient.
In Kopp's Rug Co. v. Talbot, 5 Kan. App. 2d 565, 571, 620 P.2d 1167 (1980), this court construed the meaning of the current requirement for a general mechanic’s lien that the lien statement include a “reasonably itemized statement.” The court concluded that this language stated a less strict standard than that of the old statute which required itemization “as nearly as practicable.” However, the cases cited above indicate that neither standard is too demanding when the lienor’s labor or materials were provided under a contract with the owner which stipulated a gross price for the job.
Bearing in mind the similarity between the itemization requirement under the old general mechanic’s lien statute and the oil and gas lien provision, and in light of the cases decided under the repealed statute, we conclude that the invoice provided by Geological Services was sufficient under K.S.A. 55-209. The invoice indicated the agreed gross price for labor costs for seven days of geological services, listed additional expense incurred and credited the owner with a discount for timely payment. Such an itemization was approved under the old general lien law and is sufficient here.
DaMac also argues that even if the lien statement included a sufficient itemization, no lien could attach because the services provided by Geological Services do not fall within the definition of “labor” protected by K.S.A. 55-207. Essentially, the services provided were those of a professional on-site geologist including examination and analysis of well cuttings, preparation of daily logs and supervision of testing procedures. DaMac contends that such professional services may not be the subject of an oil and gas mechanic’s lien and that the statutory lien is only intended to protect physical labors. Geological Services contends that since the services were provided on-site and were in actual aid of the drilling work, it was labor performed in completing an oil or gas well.
This is a question of first impression in this state. A review of cases in other jurisdictions indicates that while some states have been burdened with very narrow interpretations of the labor protected by mechanics’ liens such that statutory amendments were necessary to effect a departure, Kansas law is silent on this point. Cf. Smith and Associates v. Properties, Inc., 29 N.C. App. 447, 224 S.E.2d 692, rev. denied 290 N.C. 552 (1976) (prior to statutory amendment no supervisory work protected); Torkko/Korman/Engineers v. Penland Ventures, 673 P.2d 769 (Alaska 1983) (statute amended to permit lien for work done in preparation of plans whether or not plans actually carried out). Indeed, there is an abundance of cases in other jurisdictions concerned with whether the on-site professional services of an architect, engineer or land surveyor are the type of labor for which a mechanic’s lien may arise. See Annot., 28 A.L.R.3d 1014, 1021. Nevertheless, there is no Kansas case which has squarely considered whether such services fall within any of the mechanic’s lien statutes.
In Calvert Western Exploration Co. v. Diamond Shamrock, 234 Kan. 699, 707, 675 P.2d 871 (1984), the court held that the transportation of equipment and incidentals to a drill site did not come within the services which are lienable under K.S.A. 55-207. The court did not construe the language of the statute, but indicated that since there is a special mechanic’s lien provision relating to the rights of those who transport oil field equipment (K.S.A. 55-213), a transporter’s only lien remedy arises under that provision. The court also noted that the activities described in K.S.A. 55-207 (digging, drilling, torpedoing, completing, operating or repairing) all relate to services performed in the construction, repair and operation of oil and gas wells and do not include mere transportation of equipment to the site of the well.
By contrast, work of an on-site geologist in identifying the location for drilling, deciding whether drilling should be continued, and supervising the completion of the well are certainly activities related to the construction and operation of an oil or gas well. In addition, the application of K.S.A. 55-207 to this case would not run afoul of either of the two concerns which have typically resulted in the narrow construction of lienable labor in other states.
The first of these concerns is that the protected labor should be the type of work which improves the property in a manner which would be apparent to third-party purchasers so that they would be put on notice that lienable claims may be outstanding. See, e.g., Torkko/Korman/Engineers, 673 P.2d at 773. The lien claim by Geological Services only included the work of an on-site geologist which would mean that all of his work was performed in conjunction with the use of equipment on the land. This type of observable work on the property should certainly put one on notice that a geologist is at work at the site since the services of a geologist are an integral part of efficient oil and gas exploration and development. This is certainly distinguishable from the situation in which preliminary feasibility studies are conducted off-site.
The second concern that the owner’s interest be benefited by the labor to be protected is related to the observation that the fundamental principle underlying the provision of mechanics’ liens is unjust enrichment. See, e.g., Goodyear Tire & Rubber Company v. Jones, 317 F. Supp. 1285, 1290 (D. Kan. 1968). The courts are reluctant to say that the legislature intended a lien to arise when there is no tangible benefit accruing to the owner to be burdened with the lien. However, the work of an on-site geologist benefits the owner of the leasehold just as surely as do the efforts of the oil rigger. With the expert knowledge and evaluation of a geologist, costly errors occasioned by drilling in the wrong place or drilling in the wrong place for too long can be avoided. The development costs can be kept to a minimum so that profits are maximized. This is without doubt a valuable service to the leasehold owner, which if unpaid for would be a source of unjust enrichment.
Therefore, we adopt the following definition of labor to be applied to the provisions of K.S.A. 55-207: Work performed in the on-site advancement of the construction, repair or operation of an oil or gas well such that the leasehold owner would be unjustly enriched if not burdened by a lien shall constitute lienable labor under K.S.A. 55-207 regardless of whether it involves manual or mental toil. We agree with the trial court that the work performed by Geological Services was the subject of an oil and gas mechanic’s lien.
The final issue presented is whether an overriding royalty interest created by reservation in an assignment of an oil and gas lease is subject to foreclosure pursuant to K.S.A. 55-210 by a lien claimant whose claim arises subsequent to the recording of the assignment.
Appellees Toby Elster and C. Edward Wray, who are also the principals of Geological Services, hold an overriding royalty interest created by reservation in an assignment of the leasehold to David Shoemake. This assignment was recorded on March 28, 1983. Subsequently, the work generating the liens involved in this case was performed and Shoemake assigned its interest to DaMac. DaMac contends that although the overriding royalty interest preexisted the claims of the lien claimants, it should be subject to those claims as a part of the leasehold. It argues that a lien arising by virtue of K.S.A. 55-207 attaches to the “whole of such leasehold” and that this should include an interest such as an overriding royalty which was previously carved out of the working interest. Appellees contend that “such leasehold” only includes the leasehold interest held by the person for whom, or at whose instance, the labor was performed. Since the overriding royalty was assigned and recorded prior to the time the work generating the lien claims was contracted for, appellees argue that it was not part of the leasehold which could be encumbered by the lien claims. Thus, appellees’ argument is essentially one of priority. They do not contend that overriding royalty interests are always beyond the reach of a lien claim but that a preexisting royalty interest of this type cannot be subjected to subsequently arising liens.
Recently, our Supreme Court considered the definition of an overriding royalty interest for the purpose of determining whether such an interest is subject to a partition action. The Court stated as follows:
“An overriding royalty is a royalty interest carved out of the working interest created by an oil and gas lease. It is an interest in oil and gas produced at the surface free from the expense of production and its outstanding characteristic is that its duration is limited by the duration of the lease under which it is created. [Citation omitted.]
“By definition, an overriding royalty interest has neither possessory rights in the leasehold nor does it share a tenancy in common with the lessor’s royalty interest or the lessee’s working interest. The nature of an overriding royalty is such that only when oil and gas are reduced to possession does the interest attach. Prior to this event, an owner of an overriding royalty interest has no assertible right in the leasehold. Thus, an overriding royalty may be lost entirely by expiration of the primary lease since, absent fraud or breach of fiduciary relationship, the interest does not continue and attach to a subsequent lease secured in good faith by the lessee. Neither does an overriding royalty survive cancellation, surrender, abandonment resulting from diminution of production beyond economic feasibility, nor total failure to secure production in paying quantities. The coming into being of an overriding royalty owner’s rights is dependent upon the happening of a future event or condition.” Mulsow v. Gerber Energy Corp., 237 Kan. 58, 61-63, 697 P.2d 1269 (1985).
Ordinarily, a lien claimant cannot obtain a lien on any interest greater than that of its debtor. Lentz Plumbing Co. v. Fee, 235 Kan. 266, 274, 679 P.2d 736 (1984). However, as DaMac argues, there is authority indicating that the oil and gas mechanic’s lien may attach to an interest in the leasehold even though the debtor did not hold those interests when the lien arose. In Ball v. Oil & Gas Co., 113 Kan. 763, 770-71, 216 Pac. 422 (1923), the Supreme Court considered whether a prior reservation of an interest which resembled an overriding royalty interest was subject to a subsequent oil and gas mechanic’s lien. The interest was created when the lessee owning the entire lease assigned a seven-eighths interest to another company for operation of the lease. The assignment was accompanied by a written contract which provided that the assignee should operate the lease and pay the assignor one-eighth of all the oil and gas produced, and that the assignor should be “in no manner liable for the cost of developing and equipping said lease.” Finally, the contract also stated as follows: “And it is . . . agreed . . . that [the assignor] shall have recited in said assignment of the said oil and gas lease its one-eighth (Vs) paid-up interest in said lease, equipment and production.” It was after execution of this assignment that the work on the leasehold giving rise to a mechanic’s lien was performed.
The court held that the interest reserved to the assignor was subject to the payment of the lien, stating as follows:
“Under this arrangement we think the entire lease, appurtenances and appliances were subject to the statutory lien; that the operation of the lease was for the benefit of the holder of the one-eighth interest as well as of the company engaged in the actual operation of the lease, which owned the other seven-eighths; that whatever arrangement was made by the owners of these respective interests between themselves as to who should pay the operating expenses, the lien for labor or material extends to the whole property — to the entire lease and its equipment.” Ball, 113 Kan. at 771.
In short, the Ball decision appears to refute appellees’ argument since, in Ball, the mere fact that the party who contracted for the services represented by the lien did not hold the interest in question at the time the lien arose, did not render that interest free from the reach of the lien. However, Ball is not authority for concluding that overriding royalty interests are generally attachable, because the interest reserved by the assignor in that case was not an overriding royalty but an interest in the leasehold itself.
The assignment in Ball stated only that a party owning the entire working interest was assigning seven-eighths of that interest to another. The separate contract stated that the assignor would not be responsible for operating costs, but this provision simply reflected the agreement of the parties and did not characterize the interest reserved. The provision which the court cited in identifying the assignor’s interest stated that it was a one-eighth interest in the lease, equipment, and production and not simply an interest in the oil and gas produced at the surface. In short, Ball does not compel the conclusion that the court would subject an overriding royalty interest to a subsequent lien, but it does appear to indicate that the interest will not be considered free from the effects of foreclosure simply because the lien is subsequent. Therefore, we turn to consider whether the nature of the overriding royalty interest makes it a part of “the whole of such leasehold” so that it is subject to the attachment of the K.S.A. 55-207 lien.
Although the overriding royalty interest is carved out of the leasehold or working interest, it is essentially a royalty. A lessor’s royalty is not an interest in the leasehold, but an interest in the minerals actually produced and saved. Mulsow, 237 Kan. at 61. Since it has been held that the lien arising under K.S.A. 55-207 does not attach to the oil and gas at the surface (Black v. Giarth, 88 Kan. 338, 128 Pac. 183 [1912]), the lessor’s royalty interest would not appear to be subject to the attachment of the mechanic’s lien or affected by the lien’s foreclosure. Similarly, the holder of an overriding royalty interest has no claim in the leasehold itself, but simply has a right to receive a portion of the oil or gas produced. Thus, the overriding royalty interest is more like the royalty held by a lessor than the working interest held by a lessee. In addition, the life of the overriding royalty interest is completely dependent upon continuation of the lease. However, the foreclosure of a lien against the lease does not affect its termination — it simply compels a sale. There is then no reason compelling extinguishment of the overriding royalty simply because the working interest upon which its initial creation depended is sold.
Bearing in mind the nature of an overriding royalty interest and the scope of a mechanic’s lien, we agree with the trial court’s ultimate conclusion that the overriding royalty interest should not be subject to the attachment of the lien.
Judgment of the trial court which holds that Hawkins’ lien statement was properly verified is reversed. The judgment pertaining to the Geological Services’ lien statement and the overriding royalty interest of Elster and Wray is affirmed. | [
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Sell, J.:
This action is brought by four of five children against their brother to require him to execute a deed that would make all five children equal owners of certain real property located in Sumner County, Kansas. The property in dispute is hereinafter referred to as the “River” farm.
This farm was deeded to the two oldest of the five children as joint tenants with right of survivorship on July 1, 1971, by their father, Joseph Potucek, Jr. At the time the deed was given, the three younger children were minors and were still in school. The controversy among the children results from various transactions and agreements within the family concerning the River farm and another family farm known as the “Valverde” farm and the manner in which the income from both farms would be used. The problems which have arisen had their origin in the divorce of the parents of the five children in 1961 and the ensuing financial problems of Joseph Potucek, Jr., due to his chronic alcoholism until his death in 1975.
The trial court made extensive findings of fact. To better understand the issues raised, we set out the findings of the district court:
“1. That the Plaintiffs and Defendant are the children of Joseph Potucek, Jr. who died in July of 1975.
“2. That prior to his death, Joseph Potucek, Jr. had on the 1st day of July, 1971, deeded the Southwest Quarter (14) of Section Fourteen (14), Township Thirty (30) South, Range One (1) West, of the 6th P.M. in Sumner County, Kansas, referred to by the parties as the River Farm, to Joseph Potucek, III, and Steven L. Potucek, as joint tenants with the right of survivorship.
“3. That prior to, and at the time of that conveyance, Joseph Potucek, III, and Steven L. Potucek had been relied upon and were relied upon by Joseph Potucek, Jr. to assist him in conducting his affairs and advising him and acting on his behalf.
“4. That prior to the Deed being given, Joseph Potucek, Jr. had discussed with Joseph Potucek, III, deeding the River Farm to the boys to be held for the benefit of all of the children and to protect it from his creditors.
“5. That prior to, and at the time of the Deed, Joseph Potucek, Jr. suffered from alcoholism and his financial affairs were in bad shape. Among other problems and debts, he owed past due child support, back income taxes, back real property taxes, and he had been sued by Dorothy Potucek for failure to make the payments called for to purchase the River Farm.
“6. That after the Deed to the River Farm was delivered, Steven called Joseph Potucek, III, and told him that the Deed had been made and the property was in their names. He further stated that they were to work out their father’s financial problems and hold and protect the property for the benefit of all of the children.
“7. That Steven told Joseph Potucek, III, that the property was deeded to all of the children when they were all 21.
“8. That Joseph Potucek, III, sent Steven over Two Thousand Six Hundred Dollars ($2,600.00) to be used to clear up some of their father’s financial problems.
“9. That on December 3, 1971, Dorothy Potucek, mother of the parties, quit claimed to Joseph Potucek, Jr. her interest in the River Farm. The money supplied by Joseph Potucek, III, was used, in part, to satisfy her claims to that property.
'TO. That in June of 1972, Steven L. Potucek and Joseph Potucek, III, obtained a loan of Fifteen Thousand Dollars ($15,000.00) from the Federal Land Bank and mortgaged the River Farm to secure it. Funds were used to repay each of them the money they had advanced to meet their father’s financial problems, and to take care of other financial needs of their father. This loan was later paid in full.
“11. That on November 1, 1972, Joseph Potucek, Jr. executed the Deed on the Northwest Quarter QA) of Section Nineteen (19), Township Thirty-five (35) South, Range Two (2) East, of the 6th P.M. to all five (5) children as joint tenants with the right of survivorship, subject to a life estate reserved to him. The Deed recited that it was given pursuant to the Judgment and Decree of the District Court of Sedgwick County, Kansas, entered May 26, 1961. The property is referred to, by the parties, as the Valverde Farm.
“12. That on the 19th day of November, 1973, Joseph Potucek, Jr. executed a Quit Claim Deed to all five (5) children, conveying to them all of his remaining interest in the Valverde Farm.
“13. That in December of 1973, Steven L. and Joseph Potucek, III, obtained a loan for Nine Thousand Dollars ($9,000.00) and mortgaged the River Farm. The money was used to meet their father’s financial obligations.
“14. That from the time the River Farm was deeded to Steven and Joseph Potucek, III, until their father’s death, Steven received all of the income from the River Farm and the Valverde Farm. That income was used by him to pay the taxes on both properties, to pay mortgage payments on the River Farm, to pay the other debts of their father and to maintain him. He continued to use all the income, from both farms, after the Valverde Farm had been deeded to the five (5) children in fee.
“15. That Joseph Potucek, Jr. continued to occupy the River Farm as his home until his death.
“16. That at all times, the Valverde Farm has been an income producing property and the River Farm has been a non-producing property. The River Farm income never paid more than its taxes. All of the mortgage payments on the River Farm were paid from the income from the Valverde Farm, until Steven commenced payment of the mortgage payments in 1983, after the filing of this lawsuit.
“17. That the parties all met after their father’s funeral and discussed the farms. At that time, Joseph Potucek, III, and Steven L. Potucek acknowledged that although they were named as joint tenants on the River Farm, the children were all owners of equal shares in both the River Farm and the Valverde Farm. It was also discussed that the three (3) younger children’s names would be added to the Deed after Kevin, the youngest, was 21.
“18. That at that meeting, they discussed the needed improvements to the property, the use of the income from the Valverde Farm to pay off the mortgage on the River Farm and to improve and maintain the River Farm.
“19. That they also discussed the mutual use of the River Farm by all five (5) of them. They ultimately agreed that any of them wanting to use the farm would contact and get the permission of at least two (2) of the other children before using the farm.
“20. That following that meeting, part or all of the parties met on various other occasions and usually discussed the ramifications of their joint ownership of the property.
“21. That they continued to use the agreed protocol for the use of the property and when Steven wanted to have a party, he contacted Patricia and Kevin to get their permission to use the River Farm.
“22. That following their father’s funeral and their family meeting, Patricia, Kevin and Joseph Potucek, III, all worked on the River Farm, cleaning it up, maintaining it and improving it by their physical labor.
“23. That Steven continued to receive all of the income from both of the farms, kept the books and managed the farms. The income was used to pay the taxes on both farms, to make the mortgage payments on the River Farm and to improve and maintain the River Farm. It was also used to purchase such items as a stove and microwave for that house located on the River Farm for the use of all the children. Steven’s book of accounts has disappeared, and he has been unable to make a complete accounting.
“24. That in 1980 Steven L. Potucek was divorced from his wife, Diana, and began residing on the River Farm.
“25. That the youngest of the five (5) children, Kevin, became 21 in 1980, and in December of 1980, Steven advised the three (3) younger children that they had no interest in the River Farm and he did not intend to put their names on the Deed.
“26. That the Plaintiffs, through their physical labor, and by the use of their income from their interest in the Valverde Farm, have contributed to the maintenance and improvement of the River Farm. Their income from the Valverde Farm has been used to pay the taxes and mortgage payments on the River Farm.
“27. That Joseph Potucek, III, still recognizes that the three (3) younger children, Jana P. (Potucek) Lynn, Patricia Ann Potucek, and Kevin L. Potucek, are equal owners of the River Farm with Steven and Joseph Potucek, III. He is ready and willing to execute a Deed adding them as co-owners.
“28. Steven L. Potucek admits that at the time the Deed to the River Farm was given to him and his brother, Joseph Potucek, III, the property was to be protected and preserved by them. He admits that they were to use all of the income from both farms to take care of their father and his financial affairs. He admits that their father had the right to occupy the River Farm as his home until his death. He admits that they had an affirmative obligation to use the income from the Valverde Farm to maintain and improve the River Farm after their father’s death.
“29. That Twenty-one Thousand Dollars ($21,000.00) in net income from the Valverde Farm has been invested in maintenance, improvement and payment of mortgages and taxes on the River Farm.
“30. That the house on the River Farm has been maintained and improved during the time in question. Rural water has been brought to the farm. The Great Plains Conservation Program has been completed. Access to the portion of the farm north of the river has been obtained through a lawsuit. All of the liens for tax and all of the claims of Dorothy Potucek have been satisfied.
“31. That prior to the divorce of their parents, the River Farm was the family home.”
While many of the facts found by the district court are disputed and there is conflicting evidence, the trial court’s findings of controlling facts will not be disturbed on appeal if supported by substantial, competent evidence. Bell v. Tilton, 234 Kan. 461, 468, 674 P.2d 468 (1983).
The defendant, Steven Lee Potucek, appeals the trial court’s decision that he is equitably estopped from denying common ownership in the River farm with the plaintiffs, Joseph Potucek, III, Jana P. (Potucek) Lynn, Patricia Ann Potucek and Kevin L. Potucek, as well as its order that Steven forthwith join with Joseph Potucek, III, in executing a deed naming themselves and Jana, Patricia and Kevin as joint tenants with right of survivor-ship to said property.
The defendant contends that since the trust statute, K.S.A. 58-2401, prohibits the creation of an express oral trust concerning land and since the trial court did not rule on plaintiffs’ claim of a constructive trust, the trial court’s decision was erroneous. Further, the defendant contends that the promise or agreement with Joseph was not in writing and thus barred by the Statute of Frauds. Both contentions are without merit.
K.S.A. 58-2401 provides:
“No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his or her attorney thereto lawfully authorized in writing.”
The defendant correctly notes that in Silvers v. Howard, 106 Kan. 762, 771, 190 Pac. 1 (1920), the court held that when there is a written conveyance and accompanying oral agreement to later recover the property, no trust to hold the property is created by failure to comply with K.S.A. 58-2401, set out above. The court also noted that a trust by implication may arise as a result of the oral agreement and other evidence establishing actual or constructive fraud. As defendant also correctly notes, the trial court did not rule on plaintiffs’ claim of a constructive trust as permitted in Silvers. The district court did, however, rule that the defendant was equitably estopped to deny existence of the trust or agreement. In that situation, K.S.A. 58-2401 or the Statute of Frauds is not applicable:
“Since . . . the statute of frauds does not prevent a trustee from carrying out a parol trust, but merely makes it voidable at his option, when the trustee has by his conduct ratified and affirmed the trust and induced others to change their position because of it, the doctrine of equitable estoppel comes into play and the trustee cannot deny the validity of the trust on the ground that it violates the statute of frauds.” 89 C.J.S., Trusts § 83.
See also Texas Co. v. Sloan, 171 Kan. 182, Syl. ¶ 2, 231 P.2d 255 (1951), where it is stated, “The statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and a court of equity will not ordinarily permit its use as a shield to protect fraud or to enable one to take advantage of his own wrong.”
The defendant argues that the pretrial order does not suggest that plaintiffs’ cause of action was for the recovery of real property; therefore, the trial court erred in ruling that the applicable statute of limitations was fifteen years as set out in K.S.A. 60-507. This argument is not persuasive.
The defendant correctly notes that K.S.A. 60-216 provides that once a pretrial order is entered, it “controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Here, the pretrial order originally specified that one of the special questions of law to be decided was the applicable statute of limitations. The order was never modified. Apparently, plaintiffs did not identify which statute of limitations they believe applied until they filed their trial brief on the day of trial; however, the defendant did not state his theory on the applicable statute of limitations until he filed his trial brief a week later. No prejudicial error has been shown.
The defendant argues that plaintiffs’ claim for relief was not to recover real property; therefore, the fifteen-year statute of limitations set out in K.S.A. 60-507 was not applicable. Rather, the defendant argues that plaintiffs’ claim was for a constructive trust based on defendant’s fraudulent conduct; therefore, the two-year statute of limitations, K.S.A. 60-513(a)(3), barred plaintiffs’ claim.
Defendant’s contention would be meritorious if plaintiffs sought only the imposition of a constructive trust. See generally Herthel v. Barth, 148 Kan. 308, Syl. ¶ 1, 81 P.2d 19 (1938). (If the essence of a claim is to seek the imposition of a constructive trust because of the trustee’s fraudulent conduct, the two-year rather than fifteen-year statute of limitations applies.) However, plaintiffs also sought recovery under the alternate theory that defendant was equitably estopped to deny their interest in the property. Generally, actual fraud, bad faith or an attempt to mislead or deceive is not essential to a claim of equitable estoppel. Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117, Syl. ¶ 2, 650 P.2d 738 (1982). A party claiming equitable estoppel must merely prove “that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed [and that] it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.” 8 Kan. App. 2d 117, Syl. ¶ 1.
By their claim of equitable estoppel, plaintiffs were arguing that defendant was in no position to contend that their names should not be added to the July 1, 1971, deed. The test for determining whether a claim is an action to recover real property “is whether the complaint seeks a right to, title in, or possession of, realty.” City of Attica v. Mull Drilling Co., 9 Kan. App. 2d 325, Syl. ¶ 2, 676 P.2d 769 (1984). See also Main v. Payne, 17 Kan. 608 (1877). “It is the right to be enforced, not the procedure used to enforce it, that determines what statute of limitations applies.” City of Attica v. Mull Drilling Co., 9 Kan. App. 2d 325, Syl. ¶ 3. Considering the relief plaintiffs sought, the trial court did not err in determining that K.S.A. 60-507 was the applicable statute of limitations.
“ ‘The doctrine of laches is an equitable device designed to bar stale claims, and courts of equity will regard long passage of time in asserting claims with disfavor apart from any particular statute of limitations.’ [Citation omitted.]” Harvester, Inc. v. Goodyear Tire & Rubber Co., 4 Kan. App. 2d 363, 365, 606 P.2d 498 (1980). Generally, delay by itself will not constitute laches. In determining the applicability of the doctrine, the court must consider the circumstances surrounding the filing of suit as well as any prejudice to the rights of the defending party. 4 Kan. App. 2d at 365.
Here, the trial court did not err in ruling that the doctrine of laches was inapplicable. The instant suit was filed three years after the youngest Potucek turned twenty-one and defendant repudiated his prior position of including all of Joseph’s children on the deed at that time. In addition, plaintiffs understandably delayed filing suit against their brother in hopes of resolving the matter amicably. Finally, the defendant has not specifically identified how he was prejudiced by plaintiffs’ delay in bringing the suit.
The defendant contends that the trial court ignored the evidence and the pretrial order in connection with the issues involved and further may have been prejudiced by notes it might have taken, as disclosed by its findings of fact in certain areas.
The question of the sufficiency of the evidence to support the court’s findings in a bench trial was recently discussed by the supreme court in Bell v. Tilton, 234 Kan. at 468, where the court states:
“Where a trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.”
The defendant specifically contends that the following findings of fact were not supported by the evidence and therefore could have erroneously affected the court’s ultimate decision:
1. The defendant acknowledged that all five children were
equal owners of the property (finding number 17).
2. The River Farm property was not income-producing property (finding number 16).
Here, there was sufficient evidence to support each disputed finding of fact. First, Joseph Potucek, III, testified that Steven told him the property was to be held for all five children and that Steven agreed that all five children would be named on the deed when Kevin turned twenty-one. Second, the relevant portion of the other disputed finding states:
“16. That at all times, the Valverde Farm has been an income producing property and the River Farm has been a non-producing property. The River Farm income never paid more than its taxes.”
This finding was consistent with Joseph Potucek, Ill’s, testimony that the River Property produced some income; however, the Valverde Property produced substantially more income.
It appears from the facts of the case that Joseph Potucek, Jr., intended that title to both farms should go to all five children as joint tenants with right of survivorship. With passage of time and change of circumstances, it may well be that some other form of joint ownership would now be more appropriate. That is a matter to be considered and resolved by the parties apart from this proceeding.
In conclusion, the trial court’s findings of fact and conclusions of law are soundly based. Judge Graber’s opinion is well reasoned and well written. It should be and is affirmed. | [
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Briscoe, J.:
This is a direct appeal by the defendant, Terry Brewer, from his conviction by a jury of two counts of arson and one count of theft by deception, K.S.A. 21-3718 and 21-3701(b). Defendant was charged with setting a fire to a house in Osawatomie, Kansas, which defendant and his family were renting. Defendant subsequently submitted a claim to State Farm Fire and Casualty Company and recovered payment from State Farm for the loss of the contents of the house.
Defendant’s first issue involves the State’s questioning of defendant’s wife at an inquisition. Specifically, defendant contends (1) he was prejudiced by the State’s improper use of an inquisition to “discover” his wife’s testimony prior to her testifying at trial; and (2) the due process rights of both he and his wife were violated when the State failed to provide his wife with counsel at her inquisition. As a factual aside, we note at both her inquisition and at trial defendant’s wife consistently denied her husband’s involvement in the crimes charged.
Inquisitions are generally used for gathering information to determine whether probable cause exists to support a criminal prosecution. An inquisition may also be used, however, to obtain sworn testimony following an indictment. State v. Hobson, 234 Kan. 133, 143, 671 P.2d 1365 (1983); State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978); Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978). This court, in fact, has previously held that an inquisition can be used to obtain testimony whenever an individual is believed to have information concerning criminal activity. Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d at 561. In the present case, the State did not use the inquisition for improper purposes.
As regards defendant’s due process arguments, the State concedes that it acted improperly in not allowing defendant’s wife to confer with counsel. Under K.S.A. 22-3104, inquisition witnesses must be informed of their right to counsel and no questioning is permitted until counsel is present once counsel has been requested. Defendant’s wife in the present case requested counsel but her request was refused. The State based its refusal on the assumption that counsel would be unavailing because defendant’s wife had been granted immunity from prosecution and could not therefore claim her privilege against self-incrimination. The State now concedes its conduct was improper but argues that defendant has no standing to complain.
Defendant claims he has standing to raise this issue because the State elicited privileged marital communications during the inquisition. To remedy this alleged violation of his due process rights, defendant seeks a new trial with direction to the trial court to exclude his wife’s testimony from the State’s case in chief. Upon our review of the inquisition transcript, we find no reference in his wife’s testimony to privileged marital communications. In addition, the presence of counsel at his wife’s inquisition was for his wife’s benefit, not to safeguard defendant’s rights. The defendant has no standing to assert a violation of his wife’s constitutional rights. Further, an exclusion of defendant’s wife’s testimony does not appear to be a necessary remedy even had the State impinged on defendant’s marital privilege. The defendant could have adequately protected his rights by objecting at trial to the admission of any communication which he believed to be privileged.
As his second issue, defendant contends his due process rights were violated by the State’s grants of immunity for peijury committed by two of the State’s witnesses.
The Kansas immunity statute, K.S.A. 22-3415, provides in part:
“The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him unless such testimony is a violation of federal law. He shall not be granted immunity from prosecution for perjury or false statement or any other crime committed in giving such evidence.” Emphasis added.
On appeal, defendant contends the State violated this statute by granting Michael and Lavonne Rutledge immunity for perjury committed earlier at defendant’s preliminary hearing. According to defendant, the last sentence of the statute precludes the State from ever granting immunity for peijury. Defendant argues that the exclusion of peijury from the immunity statute is necessary to prevent the State from encouraging witnesses to alter their testimony. The State, on the other hand, argues the language of the statute only prevents the State from granting immunity for perjury committed while testifying under the grant of immunity.
Contrary to defendant’s reading of the case, State v. Bryant, 228 Kan. 239, 613 P.2d 1348 (1980), does not stand for the proposition that immunity can never be granted for peijury. In Bryant, the Kansas Supreme Court concluded that K.S.A. 22-3415 precluded the State from granting immunity for peijury committed while testifying under a grant of immunity. As both parties rely on Bryant for support of their respective positions, we will briefly describe the facts and the holding of that case.
Craig Bryant was convicted of aggravated robbery based in part on the testimony of Clarence Ferguson, who placed Bryant at the scene of the crime. Ferguson testified under a grant of immunity at Bryant’s trial. Several months after Bryant’s conviction, Ferguson recanted his testimony and Bryant moved for a new trial. At the hearing on Bryant’s new trial motion, Ferguson refused to testify and asserted his Fifth Amendment privilege. Ferguson refused to testify and recant his trial testimony because by testifying he would have admitted his prior testimony was perjured. On appeal, Bryant argued the State should have been required to grant Ferguson immunity for any peijury he may have committed when he testified under a grant of immunity at Bryant’s trial. The Kansas Supreme Court rejected the argument and concluded: “Clearly, the statute precluded the State from granting immunity to Ferguson for peijury in Bryant’s trial.” 228 Kan. at 247. That is, the State clearly could not grant Ferguson immunity for peijury committed while testifying under a grant of immunity. A grant of immunity for peijury committed while testifying under a grant of immunity is forbidden by the statute. The State could not do later at the hearing on the motion for new trial what it could not do when Ferguson testified initially at Bryant’s trial.
We conclude the clear language of the statute, K.S.A. 22-3415, and the holding in Bryant forbid the granting of immunity for perjury committed while testifying under a grant of immunity. Dicta in In re Birdsong, 216 Kan. 297, 302-03, 532 P.2d 1301 (1975), also supports this conclusion. Although Birdsong addressed the issue of whether immunity granted pursuant to K.S.A. 22-3415 would protect a defendant against subsequent prosecution for violation of federal laws, the court stated the following in its analysis of what protections were excluded under a grant of immunity: “The giving of testimony can be a violation of [federal] law when it is perjured. However, the final sentence in the statute withholds immunity for any crime committed in giving such testimony, such as perjury or false statement.” Birdsong, 216 Kan. at 302-03. Since K.S.A. 22-3415 only limits the State’s power to grant immunity for perjury committed while testifying under a grant of immunity, the State can grant immunity for perjury committed at other times. Similar statutory language has been considered by the federal courts, who have also adopted the position that immunity can be granted for prior perjury.
In United States v. Alter, 482 F.2d 1016, 1028 (9th Cir. 1973), the court considered the language of 18 U.S.C. § 6002 (1982):
“Section 6002 provides that a grand jury witness given use and derivative use immunity cannot rely on his privilege against self-incrimination to refuse to testify,
‘but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.’ (Emphasis added.)
We accept the Government’s construction of section 6002 as it applies to Alter:
‘[T]he phrase beginning with “or otherwise” as underlined above, modifies the meaning of the preceding quoted phrase beginning with “except.” The concluding phrase indicates that the compelled testimony may be used in prosecutions for giving false statements in response to the command to testify. But for the “exception” quoted here, all testimony given in compliance with the command to testify cannot be used, as proscribed under the preceding language of the immunity grant. . . . [T]he testimony which appellant might have given could not be used against him in any prosecution for any false statements made to anyone outside of the grand jury.’ ”
See Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653, reh. denied 408 U.S. 931 (1972). The federal court’s resolution of this issue was not based exclusively on principles of statutory construction. Instead, the federal court recognized underlying constitutional considerations.
The Fifth Amendment to the United States Constitution provides that no person shall be compelled to be a witness against himself. As a result, the prosecution may not compel incriminating testimony unless and until it removes the Fifth Amendment privilege by granting the witness immunity from prosecution. In order for the grant of immunity to be effective, however, the immunity must be coextensive with the scope of the Fifth Amendment. In other words, the immunity must insulate the witnesses as to all prior criminal conduct. Kastigar v. United States, 406 U.S. 441; In re Birdsong, 216 Kan. at 299-300.
In Alter,- the federal court recognized that the grant of immunity must include prior perjury if it is to be effective to compel a witness to testify. If prior perjury were not included, the immunity would not be coextensive with the Fifth Amendment and testimony could not be compelled. The prosecution’s use of the immunity statute would therefore be severely limited if immunity could not be granted for prior perjury. See In re Grand Jury Proceedings, 509 F.2d 1349 (5th Cir. 1975).
Applying these same considerations to the Kansas immunity statute, we conclude the State acted within the statute and did not violate defendant’s due process rights in granting the Rut-ledges immunity for perjury committed at defendant’s preliminary hearing.
Defendant next contends his due process rights were violated by the possibility of perjured testimony. We are cognizant of the premise that a conviction based on perjured or false evidence is a violation of due process, even in cases where the perjury or false evidence was not induced by the prosecution. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). This rule has no bearing in the present case, however, because defendant is unable to demonstrate that any perjury occurred. A mere possibility that perjury occurred is insufficient to cause reversal of defendant’s convictions.
As his next issue, defendant asks us to determine whether the charges against him were multiplicitous. He was charged with arson under K.S.A. 21-3718(l)(a) and (b). He was also charged with theft by deception under 21-3701.
Arson is defined in K.S.A. 21-3718 as follows:
“(1) Arson is knowingly, by means of fire or explosive:
“(a) Damaging any building or property in which another person has any interest without the consent of such other person; or
“(b) Damaging any building or property with intent to injure or defraud an insurer or lienholder.
“(2) Arson is a class C felony.”
In count one, defendant was charged with arson under subsection (1)(a). To be convicted, the jury was required to determine:
“1. That the defendant intentionally damaged the building of D.L. Polley at 907 4th Street, Osawatomie, Kansas, by means of fire;
“2. That the defendant did so without the consent of D.L. Polley; and
“3. That this act occurred on or about the 21st day of August, 1983, in Miami County, Kansas.”
Defendant was also charged with arson under subsection (l)(b) for damage to his own property with intent to defraud his insurer. To be convicted under count two, the jury was required to establish:
“1. That the defendant intentionally damaged property inside a house located at 907 4th Street, Osawatomie, Kansas, by means of fire;
“2. That State Farm Fire and Casualty Company was an insurer of the property;
“3. That the defendant did so with the intent to defraud State Farm Fire and Casualty Company; and
“4. That this act occurred on or about the 21st day of August, 1983, in Miami County, Kansas.”
Finally, defendant was charged under count three with theft by deception, K.S.A. 21-3701. To be convicted, the jury was required to find:
“1. That State Farm Fire and Casualty Company was the owner of the property;
“2. That the defendant obtained by deception unauthorized control over the property;
“3. That the defendant intended to deprive State Farm Fire and Casualty Company permanently of the use or benefit of the property;
“4. That the value of the property was one hundred dollars ($100) or more; and
“5. That this act occurred between August 22,1983, and September 9,1983, in Miami County, Kansas.”
On appeal, defendant maintains that these three convictions were multiplicitous and therefore improper. Multiplicity is defined as the charging of a single offense as two or more separate crimes, and is considered improper because a single wrongful act should not be punished more than once. State v. Dorsey, 224 Kan. 152, 154-55, 578 P.2d 261 (1978); State v. Stoops, 4 Kan. App. 2d 130, 136, 603 P.2d 221 (1979). The difficulty in the present case surrounds the definition of multiplicity. In prior case law dealing with the concept of multiplicity, both the Kansas Supreme Court and the Court of Appeals have stated that “the test to be applied in determining whether more than one offense can be charged as a result of a single act is whether each offense requires proof of a fact that is not required by another.” State v. Stoops, 4 Kan. App. 2d at 138. See State v. Thornton, 224 Kan. 127, 130, 577 P.2d 1190 (1978); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976).
Applying the above definition to the present case, it is clear that each crime requires proof of an additional fact not required of the other. K.S.A. 21-3718(1)(a) and (1)(b) each require proof of a fact not required by the other. To convict under 21-3718(1)(a), the State must prove that another person had an interest in the damaged property and that such person did not consent to the damaging of the property. Subsection (1)(b) requires proof of neither of those facts. To convict under (1)(b), the State must show that the damaged property was insured and that the damage was done with the intent to defraud the insurer. Neither of those facts is required under subsection (1)(a). Because each of the offenses with which the defendant was charged requires proof of a fact not required by the other offense, his charges under K.S.A. 21-3718(1)(a) and (1)(b) are not multiplicitous.
Likewise, the crime of theft by deception clearly requires proof different from arson under subsection (1)(a). Theft by deception is also distinct from arson under (1)(b) because a person may be convicted of the arson charge without actually obtaining the insurance proceeds. Defendant does not dispute these conclusions but instead argues that the test to determine multiplicity is improper and should be overruled. According to defendant, Kansas courts have confused the test for multiplicity with that for lesser included offenses. Defendant contends multiplicity is a broader concept. We agree- that multiplicity is a broader concept, but not as broad as defendant contends.
Defendant supports his position by citing State v. Thornton, 224 Kan. 127. In that case, the defendant contended the trial court erred in allowing the prosecution to charge and convict the defendant on both sale of marijuana and possession with intent to sell the same marijuana. The Kansas Supreme Court agreed and held that, while the court had held in the past that possession of marijuana was not a lesser included offense of the sale of marijuana, the crimes of possession with intent to sell marijuana and sale of marijuana were nonetheless multiplicitous or “merged” where the sale was consummated. According to the court, proof of the crime of sale of marijuana necessarily proved the crime of possession with intent to sell marijuana. From this and similar authority, defendant argues that a person should not be convicted of multiple crimes arising out of a single course of conduct. This definition, however, is too broad and has in fact been specifically rejected by the Kansas Supreme Court. In State v. Pencek, 224 Kan. 725, 728, 585 P.2d 1052 (1978), the court held that “[c]ulpable conduct of a defendant, although constituting a single transaction, may result in multiple violations of the criminal code for which defendant may be severally prosecuted.” The correct definition of multiplicity is provided by statute, specifically K.S.A. 1986 Supp. 21-3107. This statute provides in part:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or “(d) a crime necessarily proved if the crime charged were proved.” (Emphasis added.)
Under this statute, a person cannot be convicted of two or more separate crimes if one is either a lesser included, or a crime necessarily proved by proof of another crime. Applying this test to the present case, we conclude the crimes charged were neither lesser included offenses nor crimes proven by proof of the other.
As his last issue, defendant contends the trial court erred in sentencing defendant and in denying his request for probation. Specifically, defendant complains that (1) the sentence imposed was predicated on false information in the presentence and SDRC reports; (2) the trial court abused its discretion by not making a record of the factors it considered; (3) the trial court improperly imposed a consecutive sentence; and (4) the trial court improperly denied probation. We find no error.
(1) Defendant contends the presentence report contained false information because it listed as prior offenses charges arising out of the same incident which were filed and later dismissed or not prosecuted. Defendant argues the presentence investigator may have assumed defendant had engaged in prior acts of arson and this may have prejudiced his evaluation. Defendant also maintains that, because the SRDC report relied on the presentence report, the SRDC evaluator may have based his recommendation on the same misinformation. This argument is not persuasive.
The presentence report noted that the prior criminal charges had been dismissed or had not been prosecuted. There is no indication the investigator was under any misconception concerning these prior charges. In addition, the SRDC report contains no indication that the evaluator’s recommendation was influenced by any misconception about defendant’s prior criminal charges. Defendant bears the burden of proving that his right to due process was violated because his sentence resulted from inaccurate information. Shelton v. United States, 497 F.2d 156, 160 (5th Cir. 1974); State v. Grantom, 229 Kan. 517, 519, 625 P.2d 499 (1981). Defendant has failed to meet this burden. Further, the court could not have imposed a lesser sentence because the defendant received the minimum sentence on all counts. Finally, we note this issue is raised for the first time on appeal, despite the fact counsel had the opportunity to review the presentence report prior to sentencing and the SRDC report prior to defendant’s modification hearing. On neither occasion did defendant complain that the reports contained inaccuracies. As a general rule, issues, even those concerning constitutional matters, may not be raised for the first time on appeal. State v. Kelly, 204 Kan. 715, 716, 466 P.2d 350 (1970); State v. Harder, 8 Kan. App. 2d 98, 102, 650 P.2d 724 (1982).
(2) Defendant’s claim that the trial court abused its discretion by not making a record of the factors it considered is also without merit. The list of factors in K.S.A. 21-4606 is to be considered by the trial court in sentencing. The court, however, is not obligated to make a record of its consideration of those factors, although it is better practice to do so. State v. Buckner, 223 Kan. 138, 151, 574 P.2d 918 (1977). In the present case, since the trial court imposed the minimum sentence on all counts, a record of the factors it considered is even less important.
(3) As regards defendant’s complaint that the imposition of consecutive sentences was improper, we find no support for defendant’s argument. The imposition of consecutive sentences for separate offenses arising out of a single transaction is permitted under K.S.A. 1986 Supp. 21-4608(1). State v. Grantom, 229 Kan. at 520.
(4) As his final complaint, defendant contends the trial court abused its discretion in not granting defendant probation and by delegating its decision on probation to the SRDC. We find no abuse of discretion.
Probation is a matter within the trial court’s exclusive jurisdiction and is not subject to appellate review (State v. Adams, 218 Kan. 495, 505, 545 P.2d 1134 [1976]), unless there is a statutory presumption of probation as set forth in K.S.A. 1986 Supp. 21-4606a. State v. Linsin, 10 Kan. App. 2d 681, 709 P.2d 988 (1985). Here, defendant’s convictions were for charges which did not fall within that statute. In addition, there is no support for defendant’s argument that the trial court delegated its responsibility to the SRDC. The record reflects the trial court considered defendant’s request and denied it based on its conclusion that defendant’s crimes warranted imprisonment. We find nothing to support defendants’ argument that the court simply adopted SRDC’s recommendation.
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Meyer, J.;
This is an action brought by the executor of the estate of Garland P. Ferrell, Jr., to determine the rights and interests of various members of the Ferrell family to surface and mineral interests in a parcel of land located in Butler County, Kansas. The district court quieted title in favor of the Ferrell estate. This appeal follows.
The instant action arises out of a complicated series of facts. Briefly stated, Garland P. Ferrell, Sr., and his wife Helen origi nally owned 5,282.66 acres of land in Butler and Elk Counties. At issue in this case is certain real property in Butler County upon which oil was being produced known as the “Holly Lease” acreage.
Pursuant to a family settlement agreement entered into by the surviving children and grandchildren of the Ferrell family, the probate court ordered distribution of the Holly Lease acreage as follows: the surface rights were given to Lloyd Ferrell and the mineral interests were given to Garland Ferrell, Jr., for “as long as oil and gas continues to be produced therefrom. At and upon cessation of production, title to said minerals shall revert unto [Lloyd Ferrell].”
In December 1972, George Powers, attorney for Lloyd Ferrell, directed his partner, Phillip Frick, to prepare a number of deeds to carry out the terms of the settlement agreement. The deed governing the “Holly Lease” acreage was drawn up and sent to the attorney for Garland P. and Helen Ferrell’s estate, with an accompanying letter stating the deed enclosed conveyed the “surface interests.” Unfortunately, the actual deed as drawn up did not reserve the mineral interests to Garland Ferrell, Jr., and so conveyed both surface and mineral interests to Lloyd Ferrell, in clear contravention of the settlement agreement and the order of the probate court.
The deeds to the Ferrell acreage were filed in November 1973. From its origination in 1972 until 1976 no one connected with the transaction to the property noticed the deed to the “Holly Lease” acreage was in conflict with the settlement agreement. In 1976 a new well was drilled on the “Holly Lease” acreage and Lloyd Ferrell for the first time discovered the discrepancy in the deed. No reformation of the deed covering the property was made, however, and Lloyd Ferrell continued to allow Garland Ferrell, Jr., to receive all royalties connected with the “Holly Lease” acreage and to make payment of all taxes connected therewith.
On January 3, 1980, Garland Ferrell, Jr., died. His son, Garland P. Ferrell, III, was made executor of his father’s estate. In April 1980 royalty payments under the “Holly Lease” ceased coming to the Garland P. Ferrell, Jr., family, and Garland Ferrell, III learned for the first time of the discrepancy in the “Holly Lease” acreage deed. On October 7, 1980, Garland Ferrell, III, as executor of his father’s estate, brought suit seeking to reform the “Holly Lease” acreage deed, and to quiet title in the estate of Garland P. Ferrell, Jr., for the beneficiaries under the decedent’s will. Defendants, children of the deceased Lloyd Ferrell, answered, asserting that the statute of limitations on reformation of deeds was five years under K.S.A. 60-511(5) and that plaintiff had failed therefore to state a proper cause of action since the deed in dispute had been filed in 1973. Defendants further counterclaimed, seeking to have title to the mineral interests quieted in them and seeking to recover all amounts of royalties which had, under the terms of the deeds of record, wrongfully been paid the Garland P. Ferrell, Jr., family.
The district court found that plaintiff s action was one to quiet title and not simply one for reformation of a deed and thus was timely under K.S.A. 60-507, which provides a fifteen-year statute of limitations period for quieting title. The district court further found that defendants were estopped from denying the family settlement agreement which awarded the mineral interests of the subject property to Garland Ferrell, Jr. The court thus quieted title in favor of plaintiff and defendants appeal.
Defendants contend that because plaintiff s suit sought reformation of the quitclaim deeds governing the Holly Lease acreage, the action was one for reformation and thus untimely filed under K.S.A. 60-511(5), which provides only a five-year statute of limitations for reforming deeds.
Plaintiff contends, and the district court agreed, that the action was one to quiet title. Thus, plaintiff contends, the trial court correctly applied the K.S.A. 60-507 fifteen-year statute of limitations.
Clearly if plaintiff s action is determined to be one for reformation of a deed and not one to quiet title, the cause of action would be barred under K.S.A. 60-511(5). Beams v. Werth, 200 Kan. 532, 438 P.2d 957 (1968); Palmer v. The Land & Power Co., 180 Kan. 492, 306 P.2d 152 (1957); Travis v. Glick, 150 Kan. 132, 91 P.2d 41, aff' d on rehearing 150 Kan. 718, 96 P.2d 624 (1939). Although plaintiff attempts at length to distinguish each of the above cases, plaintiff s arguments are misplaced. The five-year statute of limitations period for reformation of a deed is not a matter for case-by-case interpretation, but is a settled rule of law. As stated by the court in Beams:
“Prior decisions confirm that an action to reform a deed on the ground of mutual mistake of the parties must be brought within the five-year period of the statute of limitations. (G.S. 1949, 60-306, Sixth: Travis v. Glick, 150 Kan. 718, 96 P.2d 624; and Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P.2d 136.) There is no indication in any of the commentaries on K.S.A. 1967 Supp. 60-511(5) that any change was intended regarding this section of the statute of limitations in the new code of civil procedure.” 200 Kan. at 544.
Thus, in order for plaintiff s action in this case to be timely, it must either have been one to quiet title (without the inclusion of a reformation of deed request), or one to reform a deed only. If the latter, the statute of limitations would have to have been tolled in order for the present action to be timely.
An action to quiet title is an action “brought by any person claiming title or interest in personal or real property, including oil and gas leases, mineral or royalty interests, against any person who claims an estate or interest therein adverse to him or her, for the purpose of determining such adverse claim.” K.S.A. 60-1002. In the present case, defendants claim the right, title, and interest in and to the mineral rights of the “Holly Lease” acreage, and have as proof of that claim two quitclaim deeds properly filed containing no reservation of mineral interests. This is a position adverse to plaintiff who claims that, by virtue of the 1972 family settlement agreement and the order of the probate court, the Garland Ferrell, Jr., estate is entitled to all mineral interests stemming from the “Holly Lease” acreage. We thus have a factual situation which appears to meet the definition of a quiet title action: two parties asserting adverse interests with regard to certain mineral rights. It is undisputed, however, that plaintiff seeks not only to quiet title, but to reform the quitclaim deeds governing the property. As discussed below, this, to us, renders plaintiff s action one to reform a deed for statute of limitation purposes.
In Palmer v. The Land & Power Co., 180 Kan. 492, Syl. ¶ 3, it is stated:
“While the statute of limitations does not bar an action to quiet title, where in order for the title to be quieted a deed must be reformed, the action will be treated as one to reform a deed and the statute [of limitations for reforming a deed] will operate.”
In Palmer, the plaintiff and her husband entered into a written contract to buy a piece of land over a period of time. Upon full payment being made, they were to get a deed, subject to a reservation of one-half the minerals in the defendant seller. Later, the plaintiff claimed an oral agreement was entered into that, if the contract was paid off early, they would get the land without reservation. They paid the purchase price prior to the due date and such a deed was given. Later, a mistake was found in the legal description and the plaintiff asked the defendant for a new deed, which was then given, but which contained a reservation of all the minerals to the defendant.
Suit was then filed by the plaintiff to quiet title. The defendant, more than five years after the original deed was given, then amended its answer and cross-petitioned to allege that the original deed without the reservation was the result of a mutual mistake. The court held that the defendant’s claim was barred:
“It is clear the cross petition was filed too late. Defendant met this by arguing the cross petition was an action to quiet title and the statute does not run against such actions. While the relief asked for in the defendant’s cross petition was in the nature of a suit to quiet title, still in order that defendant’s title might be quieted the deed, Exhibit 2, must be reformed by striking from it the reservation. Under such circumstances, we will treat the action as one to reform a deed.” Palmer, 180 Kan. at 500.
Although plaintiff attempts to distinguish Palmer from the instant case, they do so only upon the factual distinction that the court in Palmer did not mention whether production of oil existed upon the land in question, nor did it specify those persons, if any, receiving royalty payments. Plaintiffs attempted distinction of Palmer is without merit. As illustrated by the above quotes, the court at no time limits its holding to cases where the mineral rights to the subject property are non-productive.
In sum, Palmer has never been overruled, and in fact has been cited with approval more recently in Beams v. Werth, 200 Kan. at 544. Accordingly, we conclude the trial court erred in finding plaintiff s action to have been timely filed as a quiet title action under K.S.A. 60-507.
Since plaintiff s suit was required to be filed within the K.S.A. 60-511(5) five-year statute of limitations period for an action to reform a deed, plaintiff s suit is timely only if the statute were tolled in some manner. Regarding this, the trial court, although ruling plaintiffs action was a quiet title action, also stated the suit was timely even under a five-year statute of limitations:
“2. That the statute of limitations for reforming deeds is tolled where a party is in peaceable possession with no notice of any adverse claim or interest by a third party. Klepper vs. Stover, 193 Kan. 219 (1964), and Strode vs. Spoden, Ky. 284 S.W.2d, 663 (1955). The Court finds that Garland P. Ferrell, Jr., was in peaceable possession of the mineral interests in the “Holly Lease” from 1972 until 1976, and no claim nor other adverse interest was asserted by Lloyd Ferrell during that period of time. Consequently, the statute of limitations did not begin to run against Garland P. Ferrell, Jr., or his estate until 1976 when a dispute arose between Lloyd Ferrell and the oil company purchasing the oil from the Tasheff well.
“3. That less than five years has elapsed from the time that the error in the deed prepared by Phillip Frick was discovered, and the Plaintiff has filed suit within the applicable statute of limitation.”
Defendants contend they are not estopped from asserting a statute of limitations defense because equitable estoppel only applies where a party has taken some affirmative action to lull his adversary into complacency. Defendants contend that as neither side to this dispute knew of the mistake in the quitclaim deeds, there could not have been any affirmative action on the part of Lloyd Ferrell such that the doctrine of equitable estoppel could be invoked.
Defendants are correct in their interpretation of the law regarding equitable estoppel. “One general statement of the doctrine which runs throughout the cases in which it is asserted is that a defendant, who has acted in such a fashion that his conduct is sufficient to lull his adversary into a false sense of security forestalling the filing of suit until after the statute has run, will be precluded from relying on the bar of the statute.” Coffey v. Stephens, 3 Kan. App. 2d 596, 598, 599 P.2d 310 (1979), citing Bowen v. Westerhaus, 224 Kan. 42,48, 578 P.2d 1102 (1978), and Safeway Stores v. Wilson, 190 Kan. 7, 14, 372 P.2d 551 (1962).
Although it may be true, as defendants assert, that because of his lack of knowledge concerning the mistakenly drawn deeds, Lloyd Ferrell may not have taken any “affirmative action” between 1972-1976 by which to lull Garland Ferrell, Jr., into a false sense of security and thus toll the statute of limitations, the factual situation as it appears before us changed in 1976.
In 1976 Lloyd Ferrell gained knowledge of the conflict between the family settlement agreement of 1972 and the deeds filed of record in 1973. This knowledge is evidenced by the fact Lloyd Ferrell contacted the attorney for the estate of Garland and Helen Ferrell, seeking information regarding his discovery that the quitclaim deeds conflicted with the settlement agreement. When the estate’s attorney was unable to address his concerns, Lloyd Ferrell contacted his own attorney for an opinion on the matter.
To invoke the doctrine of equitable estoppel, a party need not have “planned or contrived with the deliberate intent to lull [the opposing party] into a false sense of security.” Coffey, 3 Kan. App. 2d at 600. Rather, the mere fact of remaining silent, when possessing material knowledge not held by another, is sufficient to toll the statute where that silence causes another to fail to take timely action which he would have taken had he possessed such knowledge. See Klepper v. Stover, 193 Kan. 219, 392 P.2d 957 (1964). In the instant case, Lloyd Ferrell’s silence concerning the conflict between the deeds and the settlement agreement combined with his continued failure to object to the royalty payments made to Garland Ferrell, Jr., and his allowing Garland to pay all taxes associated therewith is sufficient conduct to invoke the doctrine of equitable estoppel. Accordingly, we hold that the defendants are estopped to assert the statute of limitations.
In sum, the trial court found plaintiff s action to be timely as a quiet title action under K.S.A. 60-507, and also found plaintiff s action to be timely as one to reform a deed. However, the trial court concluded that the action was one to quiet title. This was error. Instead, we conclude that, although K.S.A. 60-511(5) imposes a five-year statute of limitations, defendants are estopped to assert this defense because of Lloyd Ferrell’s conduct. Having so concluded, the decision of the district court finding plaintiff s action to be timely should be affirmed although the trial court was correct for the wrong reason. See Farmers State Bank v. Cooper, 227 Kan. 547, 556, 608 P.2d 929 (1980).
The defendants next contend the trial court erred in admitting evidence that was allegedly protected by the attorney-client privilege. Defendants object to all evidence admitted in the form of testimony and letters coming from the law firm of Foulston, Siefkin, Powers & Eberhardt, because George Powers was attorney for Lloyd Ferrell and all communications between the two were made within the confines of the attorney-client relationship.
It is difficult to address defendants’ issue because defendants have failed to specify exactly which evidence they believe violates the attorney-client privilege, and because defendants have not specified in precisely what manner each piece of evidence violates the rule of confidentiality. As noted by plaintiff, plaintiff s Exhibits Nos. 1 and 2 (petitions for probate of the wills of Garland P. and Helen Ferrell), 3 (warranty deed by Garland P. and Helen Ferrell to their three children), 20, 21 and 22 (quitclaim deeds from Elsie Ferrell and Garland Ferrell, Jr., to Lloyd Ferrell and a quitclaim from Jane Ferrell Fassett and Nancy Ferrell Frazier to Iris Ferrell) are not within the purview of the attorney-client privilege because all are documents of public record.
Plaintiff s Exhibits Nos. 4 (letter from George Powers to Garland Ferrell, Jr.’s, attorney, O. J. Connell, Jr., proposing settlement of Ferrell family dispute in 1971), 5 (letter from O. J. Connell, Jr., responding to George Powers’ letter), 8 (letter from Powers to Connell proposing settlement), and 10 (letter from Phillip Frick to attorney of Garland and Helen Ferrell estate advising of filing of deeds) likewise cannot be considered to fall within the attorney-client privilege because these were transmittal letters between attorneys for both sides. Each attorney voluntarily shared information with the other and with their respective clients, thus waiving any right to have the information contained therein be considered confidential.
Plaintiff s Exhibits Nos. 11, 12,14, 15,16, 17,18, and 19 are all letters from the attorney representing the Garland and Helen Ferrell estate to Koch Oil Co. advising it of the family settlement agreement provisions and division orders of the company showing changes and are not within the Lloyd Ferrell-George Powers attorney-client relationship at all and so may not be objected to by defendants.
Plaintiffs Exhibits Nos. 6, 7 and 9 are all notes by Lloyd Ferrell to his attorney, George Powers. These notes are all addressed to George Powers only and contain Lloyd Ferrell’s personal thoughts and comments during the negotiating period leading up to the family settlement agreement. The notes indicate Lloyd Ferrell knew the settlement agreement was giving the mineral interest in the “Holly Lease” acreage to Garland Ferrell, Jr. At trial George Powers testified these notes were given while an attorney-client relationship existed between him and Lloyd Ferrell. The trial court nevertheless admitted the notes over defense counsel’s objection. Based upon Powers’ testimony that the notes were given within the confines of the attorney-client relationship, and because no evidence was introduced to the contrary, it was error under K.S.A. 60-426 to admit the exhibits and the testimony of George Powers concerning these exhibits. This is especially true considering the vehement objections of Mr. Powers.
Plaintiff s Exhibit No. 13 is a letter from George Powers to Lloyd Ferrell stating that Powers had examined the documents and discussions leading up to the division of the “Holly Lease” acreage surface and mineral rights and that it was his belief that Garland Ferrell, Jr., owned the mineral interests despite the absence of the reservation of such in the deeds of record. Again, based upon Powers’ testimony that this letter was written within the confines of the attorney-client relationship and because there was no evidence admitted to the contrary, the letter and testimony concerning the contents of the letter were erroneously admitted under K.S.A. 60-426.
In sum, plaintiffs Exhibits Nos. 6, 7, 9, 13 and testimony relative to the content of those exhibits appear to have been erroneously admitted by the trial court. Despite this, enough evidence was properly admitted to sustain a finding that Lloyd Ferrell, in 1976, knew of the discrepancy between the deeds of record and the family settlement agreement, but failed to disclose this knowledge to Garland Ferrell, Jr., thereby preventing him from seeking any legal corrective action within the five-year statute of limitations. The trial court’s error in admitting the above-mentioned evidence did not prejudice the substantial rights of defendants and so affords no basis for reversal of judgment and may be disregarded. City of Ottawa v. Heathman, 236 Kan. 417, 426, 690 P.2d 1375 (1984).
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Meyer, J.:
The appellant Robert A. Jagger (defendant) appeals his conviction of felony criminal damage to property. K.S.A. 1985 Supp. 21-3720(l)(a). His issues are; (1) that the court erred in declining to instruct on misdemeanor criminal damage to property, (2) that the evidence was insufficient to support his conviction, and (3) that the court erred in denying him a new trial based on prosecutorial misconduct.
Defendant’s contention that the jury should have been instructed on misdemeanor criminal damage to property is based on the fact that the value of the plate glass window he broke was only $73.20, and that he is thus guilty, at most, of a misdemeanor, even though the cost of replacing the window was $355.56. There is no merit to this issue. Defendant is clearly responsible for the damage he did, and there was specific evidence that the damage, in fact, totalled $355.56.
Defendant next contends the evidence was insufficient to sustain his conviction. The evidence to convict defendant was clearly sufficient, but since we reverse the trial court for other reasons we will not recite such evidence herein.
Defendant’s final issue is his contention the trial court should have granted him a new trial because of prosecutorial misconduct. While the extent of prosecutorial misconduct herein is not great, we do feel it is sufficient to necessitate a new trial for defendant. The complained-of comments, made in the prosecutor’s closing argument, are as follows:
“That I think is the only point that is still in issue in this case, the defendant’s intention. We had no direct testimony about Mr. Jagger’s intention. Mr. Jagger is the only person who really knows of his own experience what his intention was.
“Therefore, you are left with having to decide for yourself what his intention was on the basis of his actions and his statements to other people.
“The instructions that you have been read tell you how you can make that decision and what you can consider. I ask you to consider those instructions carefully in making up your mind on this point because you have no direct testimony from the intender as to his intentions.”
Defendant’s trial counsel objected to the statements, but the trial court stated in front of the jury that the comments were proper and did not admonish the jury to disregard the statements.
The rules regarding prosecutorial comment on the defendant’s failure to testify are well established in Kansas. The general rule is that comment by the prosecutor upon the defendant’s failure to testify violates the defendant’s constitutional right against self-incrimination. State v. Henderson, 226 Kan. 726, 735-36, 603 P.2d 613 (1979), citing Griffin v. California, 380 U.S. 609. 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965). Kansas has codified this rule in K.S.A. 60-439, which prohibits comment by the prosecutor and the court on a defendant’s privilege not to testify. Mere comment, however, is not a per se constitutional violation requiring reversal. Only error which fails to meet the federal standard of harmless error, defined as belief beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal. State v. Knapp, 234 Kan. 170, Syl. ¶ 7, 671 P.2d 520 (1983). Thus, if there is a reasonable doubt as to whether the comment contributed to the verdict, the conviction should be reversed.
Although the above-mentioned rules are well defined, their application is more difficult.
To facilitate the determination of whether a prosecutor’s comments are harmless error, Kansas appellate courts consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt, and further consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify. Henderson, 226 Kan. at 736; accord State v. Ponds, 227 Kan. 627, Syl. ¶ 4, 608 P.2d 946 (1980).
In this case, we cannot say the prosecutor’s comments were harmless error. The statements were direct and unequivocal comments on the defendant’s failure to testify. The prosecutor expressly stated “[w]e had no direct testimony about Mr. Jagger’s intention. Mr. Jagger is the only person who really knows of his own experience what his intention was.” Shortly after this comment, the prosecutor further told the jury “you have no direct testimony from the intender as to his intentions.”
We do not conclude that the prosecutor’s remarks in this case were “manifestly intended” which, according to some of our cases, would make them more reprehensible. However, as indicated, the comments as to defendant’s failure to testify were repeated. Furthermore, defendant’s intention in the instant case was crucial because of his statements, made during the investigatory stage of this case, that he did not intend to break the glass, but struck it only in frustration following a quarrel with his girlfriend.
Because of the foregoing, the trial court is reversed and this case is remanded with instructions that defendant be granted a new trial. | [
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Opinion by
Simpson, C.:
This action was commenced before a justice of the peace in the city of Salina, Saline county. Bill of particulars filed and summons issued on the 31st day of October, 1884; returnable on the 3d day of November, at 2 o’clock P. M. The summons was served on the 31st day of October, the day it was issued. The defendant below, plaintiff in error here, made a special appearance on that day before the justice, and filed a motion to dismiss the action for the reason that the court had no jurisdiction of the person, or of the subject-matter, and for the additional reason “that the summons issued in this case was not served on the defendant three days before the time of his appearance as named in the summons in this case.” This motion was overruled and excepted to, the evidence heard, and a judgment for the plaintiff for $113.50 and costs. A bill of exceptions was presented and signed, and the case taken to the district court on error, and affirmed.
The case is here on petition in error from the district court, the plaintiff in error claiming that it ought to be reversed for error apparent on the face of the record. The question discussed in the briefs of counsel on both sides, is, as to whether there was sufficient time given by the summons. The plaintiff in error is bound by the terms of his motion, and that was to dismiss the case, and even if there was not sufficient time given by the summons for the appearance and answer, it would not be a cause for dismissal of the action. In such a case the summons ought to be set aside and a new one issued giving the defendant the benefit of the statutory requirement in this respect, but it constitutes no reason for the dismissal of the action. We think the service was good, and that sufficient time was given for the appearance of the defendant. Excluding the day of service, there were three days before the time of appearance.
We see no error, and therefore recommend that the ruling of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only question is, did the court err in sustaining the demurrer to the defendant’s answer ? This question brings up the inquiry, can a person of unsound mind bring an action without a guardian or next friend being joined as plaintiff? We think not. Our statutes provide who shall prosecute and defend actions for and against persons of unsound mind. Section 18, ch. 60, Compiled Laws of 1885, is as follows:
“ It shall be the duty of every such guardian to prosecute and defend all actions instituted in behalf of or against his ward, to collect all debts due or becoming due to his ward, and give acquittances or discharges therefor, and to adjust, settle and pay all demands due or becoming due from his ward, so far as his effects and estate will extend, as hereinafter provided.”
The defendant’s answer clearly raises the question of insanity, and the demurrer of the plaintiff admits the allegations to be true. Plaintiff, then, being admitted to be a person of unsound mind, has no capacity to bring this action; and what she cannot in person do, she cannot direct or employ an attorney to do for her. The court erred in sustaining the demurrer.
It is therefore recommended that the cause be reversed, and remanded with the order that the court overrule said demurrer.
By the Court:' It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced before a justice of the peace by the defendants in error, to recover the sum of $85, claimed to be due them as commission on the sale of real estate placed in their hands for sale, as real estate agents, by Krouse, the owner. They sold to one Downs, but the plaintiff in error made a deed of the property to one Johnson, who the bill of particulars alleged took the title for Downs, and this was done to escape the payment of the commission. The bill of particulars of the defendants in error was verified by the affidavit of one of the parties, as required by § 1, chapter 60, Laws of 1886. The plaintiff in error appeared in the justice’s court, filed a demurrer on the ground that the bill of particulars did not state facts sufficient to constitute a cause of action; and that being overruled, filed an answer and went to trial. There was a judgment for the defendants in error, and the plaintiff in error appealed to the district court. In that court the plaintiff in error insisted on his demurrer, and when it was overruled asked leave to filed an amended answer, while the defendants in error had interposed a motion for judgment for want of answer. The court refused to allow the amendment to the answer, and gave the defendants in error judgment. The errors complained of here are, the action of the court in overruling the demurrer, and refusing the amendment. We have no doubt of the correctness of the ruling on the demurrer. The bill of particulars stated a cause of action independently of the fact whether a partnership existed or not. As a matter of fact, it was plainly stated in the caption, and necessarily inferable from the allegations in the body of the pleadings, that Pratt & Ellis were partners; and we are not disposed to view proceedings before justices of the peace with too much strictness. The demurrer was entirely technical in its theory and application, and it was not error to overrule it. The plaintiff in error seeks to reverse the case because of the ruling on the application to file an amended answer. To do so, he must show that there has been an abuse of that wise discretion which the law-making power of the state vests in the district courts. It might appear to us at this distance that the amendment was one that ought reasonably to have been made, and yet there was no application for it in the justice’s court before trial, nor are we presented with any reason for it in the record. The course of the plaintiff below may have been such as to impress the district court with the belief that it was made for delay, and not because the party making it had a meritorious defense; yet there is no showing here in the record that it was in the interest of substantial justice. To authorize us to reverse a judgment of that court because an amended answer was not allowed to be filed, there must be such a showing as produces a reasonable conviction that there was an abuse of judicial discretion. There is not in this record a single reason given, a single fact averred, any explanation afforded, why judicial discretion was abused by the ruling of the court. It is said that the court erred in giving judgment on the pleadings. It may be said in reply to this, that in the state of the pleadings at the time the judgment was rendered, the amended answer not being authorized to be filed, there was nothing else to do but to render judgment on the verified bill of particulars, for the amount therein claimed, with costs. (See Code, § 108, as amended by §1, chapter 61, Laws of 1886.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The plaintiff in error contends that the petition does not state facts sufficient to constitute a cause of action: first, for the reason that, if at the time of making the deed there was a tax lien against the land conveyed, as is alleged, then the covenant was broken as soon as the deed was made, and the lien, as alleged, after making said deed, was merged into a tax deed; second, because no action was brought by the tax-title holder within two years after taking out a tax deed; third, that the tax-title was barred by the fifteen-year statute of limitation. The demurrer was properly overruled. The plaintiff stated the fact, and although a pleader may say that the action was for damages for money paid to extinguish a tax-lien on the land purchased, instead of alleging the purchase of an outstanding tax-title to the premises, yet it would not change the nature of the cause of action when all the facts were stated; and these facts show a cause of action in favor of the plaintiff and against the defendant. The petition alleges a valid outstanding tax-sale certificate against the land, at the time of making the deed; the subsequent taking out of a tax deed, and the purchase by plaintiff of this tax lien; and because plaintiff described the tax title as a tax lien, would make no difference, and could not change the legal effect of his petition; the n , ,1 i *1. • ¶, n .» tacts themselves determine what cause ot action the petition states, and not what the pleader may call the cause of action founded upon those facts.
As to the second and third objections urged against the petition, we think the counsel are wrong in their conclusions. The petition does not state such facts upon its face as show that the statute of limitation had run either against the tax deed or tax lien. Nothing was alleged that could be construed as stating that possession was held by the plaintiff or his grantors during the time the tax-sale certificates were held, or after the deed was taken out on said tax-sale certificates; and for all the allegations in the petition, the premises may be unimproved and unoccupied; and if so, the tax-deed holder would be presumed to be in possession. And because there is no allegation in the petition of a breach of covenant of possession, that omission cannot be taken as an admission that the possession was in the plaintiff, and raises no presumption of fact that he was in possession. True, he makes no complaint about the possession, but claims damages only for money paid in extinguishing this tax lien and title. A demurrer can be sustained on the ground that the cause of action is barred only when it clearly appears upon the ^ # 4 -7 face of the petition that it is barred; and if the bar is not so shown, it must be raised by answer. This is also true of the fifteen-year limitation urged by counsel. No possession is alleged or claimed by plaintiff, which must be shown with the claim or color of title before the statute can be pleaded as a bar. Therefore the court committed no error in overruling the demurrer.
At the trial, objection was made by the defendant, plaintiff in error, to receiving in evidence the tax-sale certificates, the indorsements thereon, and the assignments of the same; also to the tax deed issued upon said tax-sale certificates, and in fact to all the evidence tending to establish a tax title or lien on the premises in question; and each of these objections is now urged as a reason for the reversal of the judgment rendered in the court below.
The first question is, can any of these objections avail the defendant ? The defendant’s answer set up but two defenses: first, a general denial; second, the statute of limitation. As to the last, it being a question of fact, and the trial court having found in favor of the plaintiff and against the defendant, (plaintiff in error,) we shall not consider this defense; and in fact no error is urged or claimed by reason of the finding of the court thereon. This leaves an issue of fact only as presented by the defendant’s general denial. And this brings us to the inquiry, what question of fact the denial raised. After a careful examination of the petition we are of the opinion that no question of fact was put in issue thereby. The petition alleges the lawful assessment and levy of the taxes on the premises for all the years from 1861 to 1878, both years inclusive, and lawful tax sales thereunder for the taxes for the years 1861 and 1865; the execution and delivery of the tax-sale certificates based upon said sales for the years 1861 and 1865; that said tax-sale certificates were then outstanding, in full force and effect, and were duly held by Medad Harvey; the payment of all the taxes, penalties and charges under and by reason of the holding of said tax-sale certificates; the assignment and delivery of the certificates by Harvey to Mills; the execution and delivery by the county clerk of tax deeds in due form, and based on said tax-sale certificates.
Section 128 of the code of civil procedure provides that “every material allegation of the petition, not controverted by the answer, . . . shall, for the purposes of the action, be taken as true.” And §108 of the code reads as follows:
“Sec. 108. In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney.”
The* defendants’ denial, not being verified as provided by § 108, was of no avail to them, for it admitted the execution of the tax-sale certificates, the indorsements thereon, the assignment ■ of the same, and the execution of the tax-deeds. This was an admission not only of their execution, assignment and indorsement, but the legal effect of said instruments, and what they would fairly prove and establish.
In the case of Reed v. Arnold, Mr. Justice Valentine says:'
“ When the execution of a written instrument is admitted by the pleadings, its legal effect must of necessity follow; and what its legal effect is, is purely a question of law for the court to determine. There is, then, no issue of fact with reference to the existence or effect of the written instrument upon which evidence can be introduced to the jury; and evidence can never be introduced to a jury except in support of some issue of fact made by the pleadings.” (10 Kas. 104. Also, see Barkley v. The State, 15 Kas. 100; Pears v. Wilson, 23 id. 346.)
So in this case, the execution and authority being admitted, the legal effect would be a regular assessment and levy, and a regular sale, and the issuing of tax-sale certificates based thereon ; their assignment and indorsement of taxes paid, and the assignment of said certificates, and a deed duly issued thereon, in due form, is a legal admission of a perfect tax record; and this tax title being admitted by the defendants’ answer, the court should have sustained defendants’ objections to their introduction, not upon the grounds urged, but only for the reason that they were not controverted by the answer. But the introduction of said record by the plaintiff was not such an error as would work any injustice to the defendants. It was simply proving what the defendants had admitted; it was unnecessary and immaterial, therefore not material error.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Nearly all the errors assigned in the present case are errors of law occurring at the trial; and such errors, in order to be properly saved for the- supreme court, require that a motion for a new trial, properly embodying them, should be made, filed, heard and overruled in the trial court. The defendants in error claim that the errors assigned in the present case cannot be considered by the supreme court, for the reason that no proper motion for a new trial was ever filed in the district court. The record shows that the verdict of the jury was rendered on December 1, 1885; that a motion for a new trial was in fact filed on the same day; that it was heard and overruled on December 3,1885, and that judgment was rendered in favor of the defendants in error, defendants below, and against the plaintiff in error, plaintiff below, on the same day. This motion as it appears in the record is complete and perfect in every particular, except that it is not signed by the plaintiff or his attorney. It shows, however, upon its face, that it was made by and for B. M. Orust, the plaintiff, and the journal entry of its final disposition shows that on the hearing of the motion the plaintiff, B. M. Crust, “appeared in person, and by his attorney, John T. Burris;” that the other parties also appeared in person and by their attorneys; that the motion was entertained and heard by the trial court in the same manner as other motions for new trials are usually entertained and heard by trial courts; and all this without the slightest objection being made to either the motion or to the hearing. The first objection made to the motion is now made in the supreme court. If the objection had been made in the district court, the plaintiff or his attorney would undoubtedly have corrected the motion by signing it; and undoubtedly he would have had the right to do so. The motion was heard and overruled in less than three days after the verdict of the jury was rendered, and therefore at the time of the hearing the plaintiff had the right, even without the leave of the court, to sign the motion, or to file another motion embodying the same grounds as the original; and the grounds for the new trial were amply set forth in the motion in this case. The point made by the defendants is wholly untenable. As all the parties and the court below treated the motion as sufficient, this court will also treat it as sufficient.
The plaintiff’s petition set forth a cause of action in the nature of ejectment. The defendants’ answer contained a general denial, and also set up an equitable defense. It ap pears that on December 20, 1869, and prior thereto, the land in controversy belonged to On-ko-wath-kuk-bob, an Indian belonging to the Black-Bob band of Shawnee Indians; that on that day he conveyed the same by deed, through the chiefs of his tribe, to J. Henry Blake, which deed was afterward, and on April 15, 1884, duly approved by the secretary of the interior; that on December 4, 1883, the land was conveyed by Blake by warranty deed to Milton E. Clark, and that on April 2, 1884, the land was conveyed by Clark by warranty deed to the plaintiff, B. M. Crust. The land was worth at that time about $2,000, but by an agreement between certain settlers on the Black-Bob Indian lands and the parties who held the legal title thereto, the lands were to be conveyed to the actual settlers for about ten dollars per acre. Under such agreement, this particular piece of land was to be conveyed for $880; and both the plaintiff and the defendant claimed, and still claim, to be entitled under this agreement to procure the land and the deed therefor at that price; but, as before stated, Clark conveyed the land to the plaintiff, and the plaintiff paid him therefor $880. One of the principal questions involved in this case, and the principal one litigated at the trial, was, whether the deed from Clark to the plaintiff was procured by the fraud of the plaintiff, or not. Probably the defendants were better entitled under the agreement to have the land sold and conveyed to them, than the plaintiff was to have the land sold and conveyed to him, but the plaintiff in some manner procured the sale and conveyance to himself, possibly fraudulently, possibly rightly; and which, is the main question involved in the case. ■ The defendants, in order to show that the plaintiff procured the sale and conveyance to himself fraudulently, introduced the testimony of various witnesses to show what Clark had said about the matter on various occasions, at different times, and on divers days, after the execution and the delivery of the deed. None of these statements of Clark were made in the presence or hearing of the plaintiff Crust; and all the testimony concerning them was permitted to be introduced over the objections and the exceptions of the plaintiff. Of course this was error, and it was material error; and to make it still more potent in its effect upon the jury, the court erroneously instructed the jury as follows:
“You have the right to take into consideration the statements made by Clark soon after the delivery of the deed to Crust conveying the land in controversy, together with all the other evidence in the case, in order to determine whether or not the deed conveying the land in controversy was obtained by fraud.”
There is no theory upon which the foregoing evidence could rightfully be introduced, or upon which the foregoing instruction could rightfully be given. After Clark sold and conveyed the property to Crust, he (Clark) could no longer bind Crust, or affect his rights, by any statements which he (Clark) might make concerning Crust, or concerning thfe deed, or concerning the property conveyed.
We have said that, probably, under the agreement between the settlers and the parties holding the legal title to the Black-Bob lands, the defendants had the better right to purchase the land in controversy; but nevertheless Crust in fact purchased the same, and procured the conveyance thereof to himself, and thereby obtained the legal title thereto; and Clark seems to be satisfied. And from the case as now presented, it seems to be at least doubtful whether the defendants can possibly make out a sufficient equitable title to overcome Crust’s legal title. This question, however, as the case is now presented, cannot be determined by us. /
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only question presented for consideration is, the admission of certain deeds and proceedings in bankruptcy in evidence, over the objection of the plaintiff below. If the deed and proceedings admitted were improperly admitted, the judgment ought to have been for the plaintiff instead of for the defendant. The deeds objected to were, first, the deed of assignment of the bankrupt estate of Charles Orme and Thomas E. Phillips by John W. Ray, register in bankruptcy, to James H. Ruddell, assignee; and second, a deed by the said James H. Ruddell, assignee, to George P. Anderson, trustee. The objection to these deeds is, that they were not properly acknowledged, either under the laws of the state of Kansas, or of the state of Indiana. The first of these deeds was made by the register in bankruptcy to the assignee, and made under and by virtue of the bank-' rupt law then in force, which provides that the deed of assignment by the register in bankruptcy shall be signed by him with his seal attached. No provision is made for an acknowledgment of this deed, and none is required. The register is an officer of the bankrupt court, and as such officer the law directed him to convey the bankrupt estate under his signature and seal. (Rev. Stat. of U. S. 1875, §§5044-5049.) The second deed, made by the assignee of said estate to George P. Anderson, was acknowledged before a notary public. The objection to this acknowledgment is, that the notary in his certificate does not show that the assignee was personally known to him to be the person who signed the conveyance. The acknowledgment is as follows:
“ Before me, a notary public in and for the said county, this 27th day of December, 1877, personally appeared James H. Ruddell, assignee in bankruptcy of Charles Orme and Thomas E. Phillips, whose signature is subscribed to the foregoing con veyance, and acknowledged the same to be his act and deed. Witness my hand and notarial seal, this 27th day of December, 1877. Benj. D. Walcott, Notary Public.”
Now while this certificate does not say in so many words that the grantor was personally known to him to be the person who signed the conveyance, yet it does state that the assignee personally appeared before him, and that his signature is to the conveyance. Wé think this was a substantial compliance with our statute. Again, it must be remembered that this was a sale made under the direction of and to be confirmed by the bankrupt court. There could be no mistake in the identity of this grantor in this conveyance.
Plaintiff also insists that the proceedings in bankruptcy in correcting an error or mistake in the confirmation of the sale of this land by the assignee in bankruptcy, by making said confirmation show that the sale of the northeast quarter was confirmed, instead of the southwest quarter, ought not to have been admitted over his objection, for the reason that he had purchased the northeast quarter before the correction, and that at the time of his purchase of this land he had no notice, either constructive of actual, that the northeast quarter had been sold by the assignee. The objection is not tenable. The plaintiff had full knowledge of what was disclosed by the records, and an examination of the records of Wabaunsee county would have shown that the title and all the interest therein of Orme and Phillips, bankrupts, had been conveyed by the register in bankruptcy to the assignee of said bankrupts. This was sufficient notice to put him upon inquiry, and if this inquiry had been followed up, the bankrupt proceedings would have shown that this land was actually sold, and also would have shown the error in the confirmation of the sale. Again, plaintiff’s title was by a quitclaim deed from Phillips. This deed carried with it whatever notice Phillips had of the transaction, as well as the claim of every person to the land, whether of record or not. A quitclaim deed conveys only such title as the grantor has, subject to all outstanding equities. (Johnson v. Williams, ante, p. 179.)
Plaintiff also insists that the claim of defendant to this land was barred by reason of the two-years statute of limitation provided by the bankrupt law. We do not think the statute can be invoked in favor of the plaintiff. At the time of the sale of this land by the assignee, and for a long time thereafter, this land was unoccupied. There was no adverse claimant or possession, and this proceeding was had within two years after plaintiff claimed title.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Green, J.:
Cody W. Beaver was charged with one count of felony possession of methamphetamine with intent to sell, deliver, or distribute, one count of felony possession of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. A district magistrate judge conducted a preliminary hearing and found probable cause to bind Beaver over on the charges. Beaver later moved to dismiss all charges for lack of probable cause. The trial court granted the motion. On appeal, the State contends that the trial court improperly granted the motion to dismiss. We disagree. Accordingly, we affirm.
In September 2007, the State charged Beaver with one count of felony possession of methamphetamine with intent to sell, deliver, or distribute (under K.S.A. 2006 Supp. 65-4161[a]), one count of felony possession of drug paraphernalia (under K.S.A. 2006 Supp. 65-4152[a][3]), and one count of misdemeanor possession of drug paraphernalia (under K.S.A. 2006 Supp. 65-4152[a][2]).
These charges arose out of the February 16, 2007, execution of a search warrant at a residence in Clay Center, Kansas. When the warrant was executed, Beaver was present, although he did not reside in the home. Beaver was detained at the back door of the home, approximately 3-4 feet from the kitchen table. After accounting for all the occupants of the home, the officers made an inspection of the premises. In the kitchen, the officers saw a table. On top of the table, the officers saw a digital scale. In addition, the officers saw money, bags of a crystal substance, and another bag of a crystal substance visible from an open drawer.
At the preliminary hearing, the State presented an inventory of the seized items, including a black nylon bag containing small baggies of a crystal substance, a scale, and a Ziploc bag with 21 grams of a crystal substance. A field test of the crystal substances showed the presence of methamphetamine. Officer Steve Squires, the sole witness during the preliminary hearing, stated that the seized scale and bags were commonly used for the packaging and sale of certain types of narcotics. Other items seized from the home included cash, a small silver container which had tested positive for the presence of methamphetamine, and a buy sheet, defined by Squires as “a list of names or initials and amounts of money and types of product they get — a gram, a half gram, quarter gram, or a full ounce [of drugs].” At the preliminary hearing, the State presented photos of the scene but acknowledged that the items had been rearranged before taking the photos.
Squires further testified that although the residence was generally cluttered and disorganized, all of the seized items were in plain view from the back door, where Beaver had been detained. In the weeks before the warrant’s execution, Beaver had been a frequent visitor to the home. The officers, however, had no evidence of how long Beaver had been at the residence on that day before their arrival. The officers found no mail or other documents at the residence in Beaver’s name.
Ultimately, the magistrate judge found “that the offense as set forth in the complaint was committed and further finds there is probable cause to believe the Defendant guilty of the commission of said offense.” In response to the magistrate judge’s decision, Beaver moved in li mine to enforce suppression of the items seized from his person during execution of the search warrant and moved to dismiss for lack of probable cause. The motion to dismiss alleged that the magistrate judge had erred in finding probable cause to bind over Beaver for the charges because Beaver was never in exclusive or nonexclusive possession of the items.
At a hearing on Beaver’s motions, the State did not oppose Beaver’s motion in hmine. The district judge granted Beaver’s motion to dismiss for lack of probable cause and dismissed with prejudice counts 1 and 2 of the complaint (felony possession with intent to sell and felony possession of drug paraphernalia). In rejecting the State’s theory of constructive possession, the district judge distinguished a case relied on by the State and explained how the State’s constructive possession theory was flawed:
“THE COURT: Counsel, I have reviewed — I’ve read the preliminary hearing transcript and reviewed your submissions and heard your arguments. I would agree with counsel for the defendant that this case is distinguishable factually from the Hazley case because in that case the woman was the owner of the home. This case we have no contact with Mr. Beaver in this home other than the fact that he was there. He had been seen coming and going from the place, as I remember the testimony by Clay Center police officer, on several occasions prior to the day in question, but there’s no testimony to suggest how long he had been at the — at this house when the officers arrived to serve the search warrant. Proximity we know is not enough to establish constructive possession. Proximity and plain view is not enough to establish constructive possession under the law as I understand it. You’ve got to have something that showed that he intended to control it or he was in control of it. As I review this preliminary hearing transcript it’s void of any evidence to that effect. There’s nothing to suggest that Mr. Beaver had any control over what was on the table or intended to control it. He may have gone in there and even if it was in plain view — and frankly I don’t think the 21 grams of meth was in plain view based on the photograph in Defendant’s Exhibit 2. That lithe three drawer thing is stuck back behind a bunch of stuff and you can’t tell what’s in the third or middle drawer of it from the vantage point that he was in.”
In its response to defendant’s motion to dismiss, the State admitted that the kitchen table was very cluttered.
The State timely filed a notice of appeal to the dismissal. In order to perfect this appeal, the State voluntarily dismissed count 3 of the complaint (misdemeanor possession of drug paraphernalia).
Did the District Court Err in Granting Beavers Motion to Dismiss for Lack of Probable Cause?
When an appellate court reviews the trial court’s dismissal of a complaint, it “must examine the evidence de novo, using the same standard to weigh the evidence as the trial court used.” State v. Romo-Uriarie, 33 Kan. App. 2d 22, 27, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004). A trial court conducts a preliminary examination to determine whether “it appears that a felony has been committed and [if] there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over for trial. [Citations omitted.]” State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 (1998). Probable cause “ 1 “is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.” ’ [Citations omitted.] Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. [Citations omitted.]” State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). An analysis of the existence of probable cause requires the trial court to determine whether the evidence is sufficient “to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” Romo-Uriarie, 33 Kan. App. 2d at 27. When reviewing the evidence, the district court must draw inferences in favor of the State. State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000). Moreover, it is not the province of the trial court “to determine the wisdom of the decision to file charges or to determine whether the possibility of a conviction is likely or remote.” 270 Kan. at 71.
Both counts 1 and 2 of Beaver’s complaint required the State to prove the element of possession. Count 1 of the complaint reads as follows:
“That on or about the 16th day of February, 2007, the said CODY W. BEAVER, within Clay County, Kansas, did then and there being, unlawfully, feloniously, intentionally, willfully and knowingly possess or have under his control a stimulant, to-wit: methamphetamine, with the intent to sell, deliver; said methamphetamine being a stimulant drug designated in subsection (d)(3) of K.S.A. 65-4107 and amendments thereto, other than as authorized by the Uniform Controlled Substances Act, FELONY POSSESSION OF METHAMPHETAMINE WITH INTENT TO SELL, DELIVER, OR DISTRIBUTE, in violation of K.S.A. 65-4161(a), a Drug Severity Level 3 Felony.”
K.S.A. 2006 Supp. 65-4161(a) makes it “unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant.” (Emphasis added.)
In addition, Count 2 contained a possession element:
“That on or about the 16th day of February, 2007, the said CODY W. BEAVER, within Clay County, Kansas, did then and there being, unlawfully, feloniously, intentionally, and willfully possess with intent to use drug paraphernalia, including but not limited to, to-wit: set of Jennings digital scales, set of Equinox scales, set of Vibe digital scales, and numerous small plastic baggies; to pack, repack, sell, or distribute a controlled substance, to-wit: methamphetamine, FELONY POSSESSION OF DRUG PARAPHERNALIA, in violation of K.S.A. 65-4152(a)(3), a Drug Severity Level 4 Felony.” K.S.A. 2006 Supp. 65-4152(a)(3) makes it unlawful for a person to use or possess with intent to use “any drug paraphernalia to . . . manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.”
Possession is defined as “having control over a place or thing with knowledge of and the intent to have such control.” PIK Crim. 3d 53.00. Possession “may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. [Citation omitted.]” State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243 (1978).
When the search warrant was executed, no controlled substances or paraphernalia were found on Beaver’s person. Therefore, our inquiry becomes whether there was probable cause to bind Beaver over on the charges under a theory of constructive, or nonexclusive, possession. Such possession may be proven by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988).
In order to establish a defendant’s constructive possession of drugs, more than “mere presence or access to the drugs” is required to sustain a conviction. State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233 (1991). The State must prove “other incriminating circumstances linking the defendant to the drugs.” Anthony, 242 Kan. at 502. Factors establishing a defendant’s possession of the drugs include tire following: “[a] defendant’s proximity to the area where the drugs were found, the fact that they were in plain view, the proximity of his belongings to the drugs, and his previous participation in the sale of drugs.” Anthony, 242 Kan. at 502-03. Additional factors include defendant’s incriminating statements and suspicious behavior. State v. Boggs, 287 Kan. 298, 317, 197 P.3d 441 (2008). These factors, when taken together, are sufficient to support an inference of possession. Anthony, 242 Kan. at 503.
In analyzing the presence of these factors in this case, the State refers this court to State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001), and State v. Bullocks, 2 Kan. App. 2d 48. Beaver, however, urges this court to instead rely on State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976).
In Hazley, defendant Hazley appealed her jury convictions for possession of methamphetamine and marijuana, arguing that there was insufficient evidence to sustain her conviction. The charges arose out of the execution of a search warrant at a home that Hazley shared with another person. Hazley, 28 Kan. App. 2d at 665. Similarly, in Bulloclcs, Topeka police officers executed a search warrant in a residence where defendant and another person jointly resided. 2 Kan. App. 2d at 49. On the property, officers searched a small trailer belonging to defendant and found marijuana, marijuana paraphernalia, and mail addressed to the defendant. Bullocks, 2 Kan. App. 2d at 49-50.
Both cases are distinguishable from the case at bar. While Beaver was not a resident of the searched residence, the defendants in Hazley and Bullocks were co-occupants of the searched residences. Therefore, these cases will not bear nearly the weight of reliance which the State places upon them.
On the other hand, Beaver urges this court to rely on Faulkner. In that case, Faulkner appealed his conviction for possession of a controlled substance with intent to sell. Faulkner’s charges arose when police officers found the controlled substance amobarbital, a hypodermic needle, and a small plastic bag of pills in a car in which Faulkner was a passenger. The pills were located on the passenger’s side of the car. Our Supreme Court ultimately affirmed Faulkner’s conviction based upon the following circumstantial evidence that Faulkner seemed to be intoxicated but no alcohol smell was detected, that Faulkner admitted to another individual that he possessed the drugs before he was arrested, that the substances were found on Faulkner’s side of the car and in plain view, and that Faulkner had a prior conviction for possession of a controlled substance.
Using Faulkner as guidance, this court must determine whether there are other incriminating circumstances linking Beaver to the drugs besides his mere presence at the scene. See Anthony, 242 Kan. at 502; Cruz, 15 Kan. App. 2d at 489. Specifically, we consider the following factors: Beaver’s proximity to the area where the drugs were found, the plain view of the drugs, the proximity of Beaver’s belongings to the drugs, Beaver’s previous participation in the sale of drugs, Beaver s incriminating statements, and any suspicious behavior. See Boggs, 287 Kan. at 316-17; Anthony, 242 Kan. at 502-03; Cruz, 15 Kan. App. 2d at 489.
When detained, Beaver was 3 to 4 feet from the kitchen table on which the controlled substances and drug paraphernalia were located. The record contains no information as to where Beaver’s personal belongings were when he was arrested. Similarly, the record lacks evidence to demonstrate that Beaver was a resident of the home — at most, he was a frequent visitor. Moreover, officers found no evidence of mail or other documents at the residence in Beaver’s name, which would have shown that Beaver had a connection with the home.
Although there was some dispute as to the extent of the plain view of the seized items, viewed in the light most favorable to the State, the evidence showed that the seized items were visible from the back door where Beaver had been detained. The record contains no evidence of Beaver’s previous participation in the sale of drugs or that he exhibited any incriminating or suspicious behavior during the warrant’s execution.
Beaver’s circumstances are unlike those of the defendant in Faulkner. In Faulkner, there was sufficient evidence to affirm the defendant’s conviction on a constructive possession theory. For example, Faulkner was intoxicated when arrested. Moreover, the driver of the car, in which Faulkner was a passenger, testified that Faulkner had been in possession of the items before he was arrested. The seized items were found in plain view and in close proximity to Faulkner’s person. In addition, Faulkner had a prior conviction for possession of a controlled substance. Faulkner, 220 Kan. at 154-55, 160. In the case at bar, the only factors inferring Beaver’s constructive possession of the seized items were his relative proximity to the seized items and the fact that such items were in plain view. Weighing against Beaver’s constructive possession were the following factors: he was not a resident of the home; no evidence was presented showing that his belongings were found in close proximity to the seized items; no evidence was presented that' Beaver had ever participated in the sale of drugs; and no ev idence was presented that Beaver acted in a suspicious or otherwise incriminating behavior.
In addition, the State failed to show that Beaver was anything more than a social guest on the premises. Yet, the State contends that Beaver s presence at the home and his proximity to the illegal drugs and drug paraphernalia found on the kitchen table amount to constructive possession of those items. The State, however, presented no evidence that the kitchen was used exclusively for the packaging, selling, delivering, or distributing of methamphetamine. Moreover, the State admitted that the kitchen table was cluttered. In doing so, the State implicitly admitted that there were other items on the kitchen table that were not illegal. For example, the trial judge questioned whether the methamphetamine was in plain view:
“[F]rankly I don’t think die 21 grams of meth was in plain view based on the photograph in Defendant’s Exhibit 2. That little three drawer thing is stuck back behind a bunch of stuff and you can’t tell what’s in the third or middle drawer of it from the vantage point that he was in.”
Without more than Beaver’s mere presence and proximity to the illegal drugs, there was no probable cause to believe that he was in constructive possession of the illegal drugs and drug paraphernalia found on the kitchen table.
Based on a consideration of these factors, we determine that the trial court properly granted Beaver’s motion to dismiss for lack of probable cause.
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The opinion of the court was delivered by
Horton, C. J.:
This action was before this court at its July session in 1884, upon the question whether the plaintiff’s title was barred by any statute of limitations. (32 Has. 524.) It was then held that as the land continued to be Indian land, and the title an Indian title up to the time it was conveyed by Harriet Sky, or Nah-me-co-se-quah, sole heir of Pa-kan-giah, and her husband to the plaintiff, no statute of limitations could operate against such title. Upon the new trial, judgment was rendered for the plaintiff. The defendant then made application to the court for the payment of his purchase-money and the value of his improvements upon the land before the plaintiff should be let into possession of the same, under the provisions of §2, chapter 79, Laws of 1874, and § 601 of the civil code. The plaintiff admitted that the defendant was entitled to the value of his lasting and valuable improvements, less rents and profits, but denied that he was entitled to reimbursement for his purchase-money under “ the act to protect bona fide purchasers of Indian lands,” upon the ground that so much of said act as provides that a person purchasing land from an Indian, allotted under a treaty, cannot be evicted by any other person who has subsequently acquired title to the same, until such subsequent purchaser has repaid the purchase-money, is inoperative and void, as in violation of the act admitting the state into the union, and also of the treaty with the Kaskaskia, Peoria, Piankeshaw and Wea tribes of Indians, of May 30, 1854. The district court decided that the plaintiff should pay to the defendant his purchase-money, with intérest, in addition to the value of his lasting and valuable improvements, less rents and profits, before the defendant should be required to deliver up the possession of the premises. To this ruling the plaintiff excepted.
The question for our determination is, whether the defendant can recover his purchase-money, with interest, as provided in § 2, chapter 79, Laws of 1874, before he can be required to surrender possession of the premises owned by the plaintiff. The act of admission of January 29,1861, among other things provides:
“That nothing contained in the said constitution [of Kansas] respecting the boundary of said state shall be construed to impair the rights of person or property now pertaining to the Indians of said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with such Indian tribe, is not, without the consent of such tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the state of Kansas, until said tribe shall signify their assent to the president of the United States to be included within said state, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law or otherwise, which it would have been competent to make if this act had never passed.”
Section three of said treaty reads:
. . . “All selections in this article provided for shall be made in conformity with the legal subdivisions of the United States lands, and shall be reported immediately, in writing, with apt descriptions of the same, to the agent for the tribe. Patents for the lands selected by or for individuals or families may be issued, subject to such restrictions respecting leases and alienations, as the president or congress of the United States may prescribe.” (10 U. S. Stat. 1082, 1083.)
The land being Indian, and the title thereto being Indian title up to the date of the conveyance to the plaintiff, in our opinion, under the foregoing provisions, the legislature has no right to impose the lien, charge or incumbrance upon the land, now asserted, and therefore the act cannot have the effect to require the plaintiff to pay to the defendant any purchase-money. To compel the plaintiff to pay such purchase-money would violate a paramount federal law. So much of said chapter 79, Laws of 1874, as requires the second purchaser, under such circumstances as appear in this case, to pay any purchase-money to the first purchaser, is wholly void. (Vickroy v. Pratt, 7 Kas. 238; Lemert v. Barnes, 18 id. 9; Maynes v. Veale, 20 id. 374; Brown v. Steele, 23 id. 672; Wilcox v. Jackson, 13 Pet. 517.)
If the legislature has the power to impose a lien for two or three hundred dollars upon this land, without benefitting in any manner the purchaser, and without the conseut of the United States, or of the Indian to whom it was allotted, as the district court seems to have decided, then the legislature would have the power to prescribe under what rules and regulation Indian lands might be sold or conveyed, and would also have the absolute power to deprive the United States and the Indian, to whom the land was allotted, of all power of alienation. This, of course, the legislature could not do.
Counsel for the defendant refers to Krause v. Means, 12 Kas. 335, as decisive that the successful litigant must pay the defeated claimant his purchase-money. That decision, which was concurred in by only two members of this court, gave the defeated party the benefit of the occupying claimant’s act. It was said: “He is within the spirit of the law which aims to secure compensation to him who, in a mistaken conviction of ownership, meliorates the land he occupies with lasting and valuable improvements.” We have no inclination to criticise or question that decision so far as it is based upon the equitable doctrine that a person receiving the benefits of improvements shall make compensation therefor. Further than that we are unwilling to go.
The order of the district court, granting the application of the defendant for his purchase-money, will be reversed. The cause will be remanded for further proceedings in accordance with views herein expressed.
All the Justices concurring. | [
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Greene, J.:
Gabriel Gaumer appeals the district court’s summary judgment in favor of Rossville Truck and Tractor Company, Inc. (RT&T), terminating his product liability suit alleging negligence and strict liability and seeking damages for the amputation of part of his arm after it was injured in a farm baler purchased from RT&T. He argues on appeal: (1) The district court erred in entering the summaiy judgment on his negligence claim despite his lack of an expert on the standard of care; and (2) the court erred in entering summaiy judgment on his strict liability claim based on the product being used. We affirm the summary judgment against Gaumer on his negligence claim, but we reverse and remand for further proceedings on his strict liability claim.
Factual and Procedural Background
Gaumer’s father purchased the used Case IH Big Round Hay Baler from RT&T in June 2003 for $1,700. Notably, the baler was sold with a safety shield having been removed, but the bill of sale indicated the sale was “as is.” One week later, Gaumer was operating the baler when it malfunctioned, causing Gaumer to dismount the tractor and squat near the baler to observe its operation in an attempt to understand the malfunction. When he attempted to stand from his squatting position, he slipped and his left arm inadvertently entered an unprotected opening in the side of the baler, exposing the arm to the mechanism of the baler at a location previously covered by a safety shield. His injuries led to the amputation of his left arm just below the elbow.
Gaumer originally brought suit against both the manufacturers and RT&T, but after settlement with the manufacturers, the suit proceeded only against RT&T. After expert designations and discovery, RT&T sought summary judgment against Gaumer, arguing his negligence claim could not be established without an expert on the standard of care for sellers, and his strict liability claim based on the sale of a used product was not supported by Kansas law. The district court agreed with RT&T and entered summary judgment against Gaumer on both claims. Gaumer appeals.
Standard of Review
The parties agree on appeal that there are no factual disputes and that the only issues framed are legal questions. Where there is no factual dispute, appellate review of a summary judgment is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
Did the District Court Err in Granting Summary Judgment Against Gaumer on His Negligence Claim?
Gaumer initially argues the district court erred in terminating his negligence claim. Specifically, Gaumer alleged that RT&T was negligent in failing to warn of a potentially dangerous condition of the baler at the time of the sale. Although Gaumer designated an expert who testified as to the dangerous condition of the baler, this expert did not present testimony on the standard of care applicable to a seller of such equipment. Gaumer argued below and on appeal that such an expert is unnecessary because the duty was within the common knowledge of jurors. In granting summary judgment against Gaumer, the district court rejected this argument, stating:
“The Court agrees with Defendant that the duty of a farm implement dealer in rural Shawnee County is beyond the capability of the lay person to decide.
“The Court agrees that the average juror in Shawnee County, though it is in an agrarian state such as Kansas, is not going to have sufficient knowledge of the used farm implement industry to make the necessary determination for this case and as such the ‘common knowledge exception’ is not suitable in this instance. [Citation omitted.] The Supreme Court of Kansas acknowledged in a round hay baler case that ‘laymen serving on Kansas juries seldom have any special knowledge about the mechanical operation of hay balers. The whole subject is rather technical.’ Siruta v. Hesston Co., 232 Kan. 654, 665, 659 P.2d 779 (1983). . . .
“. . . How can a lay juror be expected to have common knowledge of the operation of an implement dealer, its duty to warn or its duty to inspect? The Court feels that expert testimony is required to explain the duty and standard of care for a used farm implement dealer. In this case Plaintiff has provided no such expert, and the date for introducing such an expert has passed.”
Gaumer argues on appeal that the district court erred in fading to recognize that the standard of care of a used implement dealer is within the common knowledge of jurors, who are well acquainted with sales transactions. Gaumer suggests that these facts’ are not dissimilar to those in cases where our appellate courts have fourid that no expert testimony was needed, such as Juhnke v. Evangelical Lutheran Good Samaritan Society, 6 Kan. App. 2d 744, 634 P.2d 1132 (1981). We disagree.
Whether expert testimony is necessary to prove negligence is dependent on whether, under the facts of a particular case, the trier of fact would be able to understand, absent expert testimony, the nature of the standard of care required of defendant and the alleged deviation from the standard. See Juhnke, 6 Kan. App. 2d at 748.
Despite the ordinary experience of jurors in sales transactions, the facts here involve the standard of care of the seller of used farm equipment that our Supreme Court has found to be extraordinarily complex. We agree with the defendant’s suggestion and the district court’s finding that most jurors in Shawnee County are not likely to have experience in the purchase or sale of such complex farm equipment — whether new or used — and whatever experience they may have in the sale or purchase of other consumer products is not necessarily applicable. This is not a case like Juhnke, where no expert was needed to establish the standard of care applicable to a nursing home to protect other patients from a known violent patient with a history of injuring his copatients.
Here, the standard of care of the seller of a used hay baler is outside the ordinary experience and common knowledge of the jury and beyond the capability of a lay person to decide. See Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007). The district court did not err in granting summary judgment to RT&T given Gaumer’s failure to designate an expert who could enlighten the jury on the applicable standard of care.
We note that Gaumer also argues on appeal that no expert should be required to establish his claim of negligent failure to inspect the subject equipment prior to sale. These arguments are precluded by the district court’s conclusion that an amendment to assert such claim was untimely and would not be allowed. Gaumer does not suggest on appeal that this order was an abuse of discretion, nor does he otherwise challenge the order. Accordingly, the district court’s preclusion of a claim of negligent failure to inspect need not be considered.
Did the District Court Err in Granting Summary Judgment Against Gaumer on his Strict Liability Claim?
Gaumer next argues the district court erred in granting summary judgment against him on his strict liability claim. Gaumer suggests that he established a prima facie case for strict liability and that the court erred in terminating his claim based on a principle of law that has no support in Kansas. In granting the summary judgment against Gaumer on this claim, the district court found that the lack of an expert addressing the “defectiveness of the product” was fatal, stating:
“Plaintiff would like the Court to simply piggyback the opinion of defectiveness from the manufacturers to the seller; however, it is inadequate in the eyes of the Court for Plaintiff s expert simply to address only the manufacturer and to remain silent on the seller’s knowledge of the defective product or the responsibility of the seller for the manufacturer’s defective design. Without any sort of mention by [plaintiffs expert] of Defendant [RT&T] in his report, the Court cannot see how strict liability can be imparted to Defendant in this case.”
The court also based its decision on the principle that a strict liability cannot be asserted against the seller of a used product, stating:
“Even if the failure to provide an expert was not fatal the Court finds strict liability does not apply to a seller of used products. Neither party has provided a Kansas cite nor can the Court find a Kansas state case that stands for this proposition.”
The court then cited two federal district court decisions and concluded:
“The purpose of discouraging the marketing of defective products would not be fulfilled by extending strict liability to sellers of used products that have not repaired or remanufactured the product. The used product dealer has a different relationship with a manufacturer than that of a retailer of new products. Furthermore, the expectations of a buyer of a used product generally are not the same as those of a buyer of a new product.”
We respectfully disagree with the district court on both of its bases for terminating Gaumer’s strict liability claims.
First, we disagree that any further expert opinion beyond that offered by Gaumer was required for a prima facie case of strict liability. His expert opined in material part:
“1. The IHC Model 2400 Large Round Baler, Serial Number 4345, is defective in design and unreasonably dangerous from die standpoint of an ordinary consumer because it has associated with its foreseeable use and maintenance a recognized hazard with a foreseeable risk of serious injury or death. . . .
“4. The defects in the IHC Model 2400 Large Round Baler were causative of the injuries received by Gabriel Gaumer.”
To present a prima facie claim of strict liability in the manufacture or sale of a product, the plaintiff must produce proof of three elements: (1) the injuiy resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant’s control. Jenkins v. Amchem Products, Inc., 256 Kan. 602, 630, 886 P.2d 869 (1994) cert. denied 516 U.S. 820 (1995); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348 (1983). Moreover, the focus must be on the product itself, not the acts or omissions of the maker or seller. See Savina v. Sterling Drug, Inc., 247 Kan. 105, 114, 795 P.2d 915 (1990) (“Under the strict liability theory, a plaintiff is not required to establish misconduct by the maker or seller but, instead, is required to impugn the product.”).
RT&T conceded at oral argument that these elements were established, and we agree. The expert’s opinion established both that the product’s condition was unreasonably dangerous and that the injury resulted from that condition. The fact that the condition existed at the time it left RT&T’s control, although not carefully and expressly stated by uncontroverted facts, seems to have been implied by the uncontroverted facts and has not been disputed by RT&T either below or on appeal. Thus, a prima facie case of strict liability appears to have been established by Gaumer.
The district court’s concern about the lack of expert opinion as to “knowledge of the defective product” and “responsibility of the seller for the defective design” seems to have confused the seller’s defense with the elements of plaintiff s prima facie case. The elements of the seller’s knowledge of a defect and the seller’s responsibility to discover the defect are within the statutory prerequisites for seller’s immunity from product liability contained in K.S.A. 60-3306, which provides:
“A product seller shall not be subject to liability in a product liability claim arising from an alleged defect in a product, if the product seller establishes that: (a)Such seller had no knowledge of the defect;
(b) such seller in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care;
(c) the seller was not a manufacturer of the defective product or product component;
(d) the manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or the domicile of the person making the product liability claim; and
(e) any judgment against the manufacturer obtained by the person making the product liability claim would be reasonably certain of being satisfied.”
Although RT&T properly pled immunity under this statute, this defense was not framed by or any part of the summary judgment motion. Instead, the motion sought judgment on the basis Gaumer had failed to establish a prima facie case due to lack of required expert testimony. Accordingly, the district court’s reference to aspects of the immunity defense was not relevant in deciding a summary judgment framing only the question whether a prima facie case had been established. Certainly, RT&T could have sought judgment based on uncontroverted facts establishing the elements of an immunity defense, but it did not choose to seek such a judgment and the immunity defense was simply not before the district court.
Regarding the district court’s second basis for its decision, we disagree that Kansas law supports the principle that there be no product liability for the sale of used products. As conceded by the court and confirmed by the parties, there is no reported appellate decision in support of this principle. Although two federal district court cases in Kansas have addressed similar fact situations, those cases are distinguishable and without controlling effect on us. See Stillie v. AM International, Inc., 850 F. Supp. 960 (D. Kan. 1994); Sell v. Bertsch and Co., Inc., 577 F. Supp. 1393 (D. Kan. 1984). In both of these cases the federal district court addressed the implications of remanufacturing or repairing products after release into the stream of commerce. Although one of the cases suggests that our Supreme Court might find immune a seller of a used product who has not repaired or remanufactured the product, this court does not have the liberty of carving exceptions to established law when our Supreme Court hás not led the way.
Indeed, established principles of products liability in Kansas do not recognize any exception for sellers of used products. Our Supreme Court long ago adopted the Restatement (Second) of Torts §402A (1964), imposing liability on a “seller” of a “product” that is defective and dangerous to a user even though the seller has exercised “all possible care in the preparation and sale of his product.” See Brookes v. Dietz, 218 Kan. 698, 70-02, 545 P.2d 1104 (1976). No exception for sellers of used products has ever been recognized by our Supreme Court, and consistent with the general rule, PIK Civ. 4th 128.17 recognizes product liability of sellers without regard to new or used products.
“A (manufacturer) (seller) who sells a product in a defective condition which is unreasonably dangerous to the (user) (consumer) is subject to liability for physical harm (or property damage) thereby caused to the ultimate (user) (consumer), if:
“(1) The (manufacturer) (seller) is in the business of (making) (selling) such a product; and
“(2) It is expected that the product will reach and does reach the (user) (consumer) without substantial change in the condition in which it is sold.”
Moreover, we note that in promulgating K.S.A. 60-3306, our legislature certainly had the opportunity to more broadly extend immunity to sellers of used products but chose instead to generally provide for seller immunity upon a showing of specified criteria, none of which seem to be expressly sensitive to any distinction for new or used products. Our Supreme Court or our legislature may decide to create such an exception, but until either or both have occurred, we must apply the general principles reflected in the Restatement, the reported cases from our appellate courts, and our current PIK instruction.
For these reasons, we conclude the district court erred in terminating Gaumer’s claims based upon elements of a defense that was not before the court on summary judgment and based upon an unrecognized exception to product liability for sellers of used products. We reverse the district court’s grant of summary judgment on Gaumer’s strict liability claim and remand for further proceedings on that claim.
Affirmed in part, reversed in part, and remanded with directions. | [
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Rulon, C.J.:
Defendant Emiliano Perez-Rivera was convicted of felony domestic battery. On appeal the defendant contends there was insufficient evidence to support his conviction and the district court erred when giving an Allen-type instruction to the jury which included the statement “another trial would be a burden on both sides.” See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). We reverse.
The defendant was charged with aggravated assault in violation of K.S.A. 21-3410(a), felony domestic battery in violation of K.S.A. 21-3412a(b)(3), and criminal damage to property in violation of K.S.A. 21-3720(a)(l). The defendant’s wife, Wendy, testified that on February 27, 2007, the date of the alleged altercation, she was living with the defendant and they had been married for 2Vz years. However, Wendy did not state how old she was at the time of the incident, nor did the State present any direct evidence concerning Wendy’s age.
The defendant took the witness stand in his own defense and testified, among other things, he was 30 years old, he had married Wendy in a ceremony in Las Vegas, they had been married for 2Vz years, and they were living together at the time of incident.
Ultimately, the jury found the defendant guilty of domestic battery but acquitted him of the aggravated assault and criminal damage to property charges.
Sufficiency of the Evidence
The defendant argues the State presented insufficient evidence to convict him of domestic battery because the State failed to put on evidence to show Wendy was 18 years of age or older when the alleged incident took place. The State concedes it failed to put on direct evidence of Wendy’s age, but argues the jurors could have inferred Wendy was 18 years old or older based on her appearance, demeanor, and testimony at trial, as well as defendant’s testimony at trial.
In State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007), our Supreme Court stated:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
“A conviction can be sustained only upon evidence which proves every element of a crime beyond a reasonable doubt.” State v. Star, 27 Kan. App. 2d 930, 934, 10 P.3d 37 (2000).
K.S.A. 21-3412a(a)(1) defines “domestic battery” as “[intentionally or recklessly causing bodily harm by a family or household member against a family or household member.” K.S.A. 21-3412a(c)(1) defines “family or household member,” as used in the crime of domestic battery, as
“persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time.”
The jury was instructed that in order to find the defendant guilty of domestic battery, the State had to prove beyond a reasonable doubt that (1) the defendant intentionally caused bodily harm to Wendy; (2) the defendant and Wendy were family or household members; and (3) the act occurred on or about February 27, 2007, in Barton County, Kansas. The jury was further instructed family or household member meant persons 18 years of age or older who are spouses.
Clearly, the plain language of K.S.A. 21-3412a required the State to prove beyond a reasonable doubt that, among other things, Wendy was 18 years of age or older when the alleged incident occurred. If there was no evidence presented which went to prove this element, then defendant’s conviction must be reversed.
The State argues it presented circumstantial evidence which satisfied this element, pointing to the fact both Wendy and the defendant testified they had been married for 2% years, and defendant stated the marriage ceremony took place in Las Vegas. Based on this evidence, the State argues the jury could have inferred Wendy was at least 18 years old when the alleged incident occurred because, according to the State, under Nevada law, a person must be at least 16 years old to marry. See Nev. Rev. Stat. § 122.020 (2004). The State assumes the jurors had personal knowledge of Nevada’s marriage laws because the State failed to present any evidence at trial addressing this issue. The State further argues, based on Wendy’s appearance and demeanor at trial, the jury could have concluded that she was 18 years old at the time of the incident.
The State’s arguments must be rejected. First, while it is true that a conviction may be sustained by circumstantial evidence, see State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007), guilt may never be based on inference alone. Reasonable presumptions and inferences may be drawn from facts established by direct or circumstantial evidence, but a presumption may not be based upon a presumption or an inference upon an inference. State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441 P.2d 846 (1968). A jury simply cannot speculate or infer through its own observations or personal knowledge that an element of a crime has been proven. The State must put on evidence, circumstantial or direct, that establishes every element necessary to sustain a guilty verdict. Star, 27 Kan. App. 2d at 935.
In Star, a panel of this court had to determine whether there was sufficient evidence to sustain Star’s conviction for the sale of cocaine within a 1,000 feet of a school. At Star’s jury trial, the State failed to put on evidence that Hickok School, the building in question, located in the town of Ulysses in Grant County, was used by a unified school district or an accredited nonpublic school for student instruction, attendance, or extracurricular activities — an essential element of K.S.A. 65-4161(d). The State argued because all the jurors were from Grant County, they could infer, based on personal knowledge, Hickok School satisfied the statutoiy definition. This court rejected the State’s argument, holding the State was required to put on evidence that showed Hickok School fell within die statutory definition of K.S.A. 65-4161(d). Furthermore, the court held where such evidence is lacking, “a jury cannot be allowed to speculate or infer through its own observations the structure complies with the statutory definition of a school.” Star, 27 Kan. App. 2d at 936.
Here, the State is making the same argument as was made in Star, contending the jury should be allowed to infer through its own observations, of Wendy’s physical appearance and demeanor at trial, and personal knowledge, assuming the jurors knew about Nevada’s marriage laws, that Wendy was 18 years of age when the alleged incident occurred. Simply put, the jurors could not make an inference concerning Wendy’s age based on their personal knowledge or observations; a juror’s inference can only be based on evidence presented at trial. Because the State failed to put on evidence to show Wendy was 18 years old when the incident occurred, the defendant’s conviction for domestic battery must be reversed.
Allen Instruction
Because the defendant’s conviction is reversed for insufficient evidence we need not consider the defendant’s contention the Allen instruction was improperly given to the jury.
The defendant’s conviction of felony domestic battery is reversed. | [
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Opinion by
Simpson, C.:
This was an action of ejectment, commenced in the district court of Allen county, by Thrasher, to recover from Geer and wife possession of certain real property. It was tried by the court, a jury being waived. The findings of fact are as follows :
“1. The defendants are and at the time of the commencement of this action were in the possession of the premises mentioned in the petition, viz.: All that part lying east of the center of the Neosho river, included in lands bounded as follows, to wit: commencing at a point 51-J rods south of the northeast corner of the northeast quarter of section twenty-one, in township twenty-four, range eighteen, in Allen county, Kansas, thence running south 28J rods, thence west 56 rods, thence north 28J rods, thence east 56 rods, to place of beginning; and the said lands were subject to taxation.
“2. The rights of plaintiff are by virtue of the two tax deeds, and the sale certificate offered in evidence.
“3. The notice of the tax sale upon which said deeds are based was published in four successive issues of a weekly newspaper, published and of general circulation in Allen county, state of Kansas; the first of which was published on the 20th day of July, 1878, and the last was published on the 10th day of August, 1878.
“4. The final tax notice upon which said deeds were issued, was as follows: ‘Whereas, the following lands and town lots, situated in the county of Allen, and state of Kansas, have been sold for taxes for the year 1877, and the other taxes then due and unpaid, to wit, on the 3d day of September, 1878, and the following days, to include the 5th day of September, 1878; and whereas said lands and town lots have not been redeemed from, said sale as required by law, now, therefore, notice is hereby given that unless said lands and town lots are redeemed on or before the second day of September, 1881,' and the following days, to include the 5th day of September, 1881, the same will be subject to conveyance by tax deed.’ The costs of redemption are figured for three years from the day of sale. The remainder of said notice was as required by law.
“5. Said notice was first published April 8, 1881, and last published April 29, 1881, and was duly posted as required by law.”
The court, as its conclusions of law, found as follows, to ■ wit:
“The defendants at the time of commencement of this action were the owners and entitled to the possession of the premises in controversy; that the final tax notice upon .which the said deeds were issued was insufficient in law, and the deeds issued thereon were invalid, and insufficient to convey title to plaintiff.”
To each of said conclusions of law the plaintiff excepted. The court adjudged that the defendants go hence without day, and that they recover their costs and charges in this behalf expended, taxed at $7.40; to which judgment the plaintiff excepted. Thereupon plaintiff filed his motion for a new trial, which motion upon due consideration was overruled by the court; to which ruling the plaintiff excepted, and thereupon moved the court to determine the amount of taxes heretofore paid out by him, together with interest, penalties and costs due thereon, and that the same be declared a lien on the premises in controversy. And thereupon said cause coming further on to be heard upon the application of plaintiff for the benefit of the provisions of §142, chapter 34, Laws of 1876, and upon the consideration of the evidence, the court found the following facts:
“1. That on August 12,1882, a tax deed for the land in controversy was executed to plaintiff, which was void prima facie by reason of the omission of recital of facts necessary to validity of sale, and which said omitted facts really existed, and the county clerk should have stated them in said deed, but by accident he failed to do so; and that afterward, on the 27th day of June, 1884, a second deed, valid prima fade and containing the facts by accident omitted from the first deed, and based on the same sale, was executed to plaintiff, which deed was the basis of plaintiff’s attempted recovery in this action.
“ 2. That by allowing plaintiff to recover fifty per cent, interest, as provided in law, (Laws of 1876, ch. 34, § 142,) down to the date of said second deed, plaintiff would be entitled to recover payment from defendants of the sum of one hundred and twenty-four and ffg dollars.
“And as conclusions of law, I find that interest should be computed to the date of the second deed; and plaintiff is entitled to a lien on said land to secure the payment of said sum of $124.29.”
To the conclusions of law, so far as the same allow recovery of interest to the date of the second rather than to .the date of the first tax deed, defendants excepted, and moved the court to set the same aside aside, which motion the court overruled, to which defendants excepted; and thereupon, upon motion of plaintiff, the court ordered, adjudged and decreed that the premises mentioned in the petition be charged with a lien to secure the payment of said sum of $124.29, and that, unless the same be paid within two months, said land be sold according to law as on special execution, and the proceeds applied in payment of said sum to plaintiff; to all of which the defendants excepted.
The only assignment of error is, that the court erred in computing interest on the amount of taxes at fifty per cent, per annum to the date of the second deed — the contention of the plaintiffs in error being that it should have been computed only to the date of the first deed. The first tax deed was executed August 12, 1882; the second, June 27, 1884. The first tax deed issued to the defendant in error was void prima fade, by reason of the omission to recite facts necessary to its validity that really existed; and the county clerk should have recited them in the deed, but by accident failed to do so. The second tax deed contained all the facts omitted in the first, and this deed was the basis of this action. The solution of the question' involves the amount of interest at fifty per cent, per annum, for one year, ten months, and fifteen days; and it de pends largely on the construction of the words “with all interest and costs as allowed by law up to the date of said tax deed,” as used in §142, chapter 107, Compiled Laws of 1885. The sale for taxes upon which the deed is based was made on the 3d day of September, 1878, and when the party redeeming was required to pay fifty per cent, interest. The first proposition of counsel for the plaintiffs in error is, that the statute contemplates but one deed, and it is made the duty of the clerk to execute it when the certificate of sale is presented; that if, in the performance of that duty by the clerk, any mistake or omission occurs that renders it necessary to execute another or a second deed, it is in legal contemplation the deed executed in pursuance of the statutory duty of the clerk on the presentation of the certificate; that there can be but one valid deed, and that the date of the deed is fixed by statute at the time of presentation of the certificate; that any successive deed relates back to the date of the first deed made at the time of the presentation of the certificate; that if this construction of the statute is not adopted, then the clerk is given the power to indefinitely prolong the date of the deed, and thus impose an additional liability on the part of the original owner to continue to pay the fifty per cent, interest beyond the time fixed by law. It seems to us that there is not much room for contention in respect to the true meaning of the tax law. Thrasher was the holder of this tax deed. He was defeated in an action by him for the recovery of the land sold for taxes, because his tax deed (the second one, not the first one) was invalid for certain reasons; and these parties were adjudged to pay to him the full amount of all taxes paid upon such lands, with all interest and costs as allowed by law, up to the date of said tax deed — the second deed, the one under which he claimed title in this action, the one he offered as evidence of title, the tax deed under and by virtue of which he brought his action and claimed possession.
This is the natural construction, and the evident meaning of the legislature, as well as the equitable view of the statute as between the original owner and the party claiming by tax deed. It is well said in the brief of the defendant in error, that it is within the power of the owner of the land to stop all interest and costs, by the payment of taxes, or by a speedy redemption after sale. The man who permits his land to be sold for the non-payment of taxes is “not free from blame.” The law offers extraordinary inducements to purchasers at tax sales, in the way of a large interest, to the end that the revenue necessary to support the state and county governments shall be speedily collected; and yet the owner can stop the interest at any moment by payment or redemption. If an onerous burden is imposed by the statute, it operates only on a class who own property and fail to comply with its plain requirements as to the payment of taxes thereon. Section 143 of the tax law provides:
“And in all cases where different or successive tax deeds upon the same sale shall be put on record by the same party, . . it shall be deemed and held that all rights which might otherwise be claimed under all or any ta,x .deeds prior to the last one put on record, shall be deemed and held to be waived and considered as merged in such last tax deed so put on record.”
This part of the section has been construed by Chief Justice Horton, in the case of Austin v. Jones, ante, p. 327, (same case, 15 Pac. Rep. 166,) as fixing and determining all the rights of the tax-title holder, in cases where successive deeds have been made on the same sale. The logic of that construction is, that the rights of the tax-title holder must be determined by the last deed. What rights are they ? They are to recover the land if the owner is in possession, as was attempted in this action; to defend his possession if he has taken it; if he is beaten in an action brought by or against him, to have the owner adjudged to pay him the full amount of taxes paid, with all interest and costs, up to the date of his deed, as the statute expressly declares that all his rights are merged in his last deed. This seems conclusive as to the first reason assigned.
The other proposition, urged with force and ingenuity, is this: That as more than four years had elapsed from the time of the tax certificate before the tax deed was executed, (if we consider the second deed as the one under which the defendant in error is entitled to interest,) then under the operation of § 172, chapter 107, Compiled Laws 1885, the lien is lost. Section 175 provides that—
'‘Nothing herein shall be construed to impair the lien for taxes on real estate deeded for delinquent taxes, in case the deed shall from any cause fail to pass a title to such property.”
This section, it seems, has application to the state of facts presented here, and conclusively disposes of that cause of error.
We think that the second deed is the one referred to in §142, and that §175 preserves the lien. We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Hill, J.:
In this sentencing appeal, William J. Dalton claims he should have a shorter sentence because possessing red phosphorus with the intent to manufacture methamphetamine is the same conduct that is prohibited by the less severe offense of using drug paraphernalia. According to a ruling by our Supreme Court, if the same conduct is prohibited by two statutes and those statutes have different levels of punishment, a defendant can be convicted of either crime, but the court can only impose the sentence of the less severe level. Because we do not think the two statutes here are identical, we hold there was no sentencing error in this case and affirm.
The facts of this case are not disputed.
William J. Dalton entered a nolo contendere plea to one count of possession of red phosphorus with intent to manufacture methamphetamine in violation of K.S.A. 65-7006(a). This is a severity level 2 drug felony. In exchange, the State dismissed the remaining count of attempting to manufacture a controlled substance in violation of K.S.A. 65-4159. The court imposed a presumptive 49-month prison sentence.
We list the relevant statutes and our standard of review.
K.S.A. 2006 Supp. 65-7006(a), setting out the crime of possessing red phosphorus with intent to manufacture a controlled substance, provides “[i]t shall be unlawful for any person to possess . . . red phosphorus . . . with intent to use the product to manufacture a controlled substance.” A violation of this statute is a drug severity level 2 felony. K.S.A. 2006 Supp. 65-7006(e).
K.S.A. 2006 Supp. 65-4152(a)(3), defining the crime of using or possessing drug paraphernalia with intent to manufacture a controlled substance, states “[n]o person shall use or possess with intent to use any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.” A violation of this section is a drug severity level 4 felony. K.S.A. 2006 Supp. 65-4152(c).
K.S.A. 2006 Supp. 65-4150(c) defines the term “drug paraphernalia” as follows:
“ ‘Drug paraphernalia’ means all equipment and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controlled substances act. ‘Drug paraphernalia’ shall include, but is not limited to . . . .” (Emphasis added.)
This issue involves the interpretation of statutes. “The inteipretation of a statute is a question of law over which this court has unlimited review.” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
Appellant’s arguments are based on State v. Campbell.
On appeal, Dalton argues the district court erred in sentencing him for a drug severity level 2 felony for the crime of possession of red phosphorus with the intent to manufacture methamphetamine. For support, he points to the definition of drug paraphernalia in K.S.A. 65-4150(c), contending that red phosphorus qualifies as a “material of any kind” as that term is used in that law. Under this theory, Dalton claims his crime of possession of red phosphorus with intent to manufacture methamphetamine found in K.S.A. 2006 Supp. 65-7006(a) is identical to the crime of possession of drug paraphernalia with intent to manufacture in K.S.A. 2006 Supp. 65-4152(a)(3). Consequently, he asks us to reduce his sentence to a drug severity level 4 felony as provided in K.S.A. 2006 Supp. 65-4152(c). This argument all flows from the Kansas Su preme Court’s decision in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005).
In Campbell, the defendant was charged with unlawful possession of ephedrine with the intent to manufacture methamphetamine in violation of K.S.A. 65-7006(a). 279 Kan. at 3-4. Upon review, the Supreme Court examined whether ephedrine constituted drug paraphernalia, requiring the defendant to be sentenced to the lesser penalty provision in violation of K.S.A. 65-4152(a)(3). 279 Kan. at 2, 4. At tire time of Campbell, the legislature defined drug paraphernalia under K.S.A. 65-4150(c) to include “ ‘products and materials of any kind which are used or intended for use in . . . manufacturing ... a controlled substance.’ ” (Emphasis added.) 279 Kan. at 4.
Because of the inclusion of the term “products” in K.S.A. 65-4150(c), the Campbell court decided that the use of the same term in K.S.A. 65-7006(a) meant that these provisions overlapped. Relying upon the overlapping term of “product” found in both statutes, the court held that K.S.A. 65-4150(c)’s definition — that drug paraphernalia was a product — also encompassed ephedrine as a “product” under K.S.A. 65-7006(a). 279 Kan. 1, ¶ 3. Under that analysis, the Supreme Court directed the defendant to receive a new sentence under the less severe level set out in K.S.A. 65-4152(a)(3), (c). 279 Kan. at 17.
Dalton admits he failed to object to this error at sentencing. But K.S.A. 21-4721(e)(3) gives appellate courts jurisdiction to review claims that the sentencing court erred in ranking the sentence severity level. State v. Spangler, 38 Kan. App. 2d 817, 833, 173 P.3d 656, 667 (2007). We will proceed then with the appeal.
There have been refinements to the Campbell ruling.
Since Campbell, the legislature has removed the term “product” from K.S.A. 65-4150(c). See L. 2006, ch. 194, sec. 33. By this enactment, we believe the legislature clearly communicated its intent that drug paraphernalia does not include the products listed in K.S.A. 2006 Supp. 65-7006(a).
Also, the Supreme Court’s recent decision in State v. Cooper, 285 Kan. 964, 179 P.3d 439 (2008), further reinforces the finding that the crime of possessing red phosphorus with intent to manufacture under K.S.A. 2007 Supp. 65-7006(a) should not be identical to the crime of possessing drug paraphernalia with intent to manufacture. The Cooper court, in determining that K.S.A. 65-4159(a) and K.S.A. 65-4152(a)(3) did not have identical elements, stated:
“The legislature has designed statutes that more severely punish someone who manufactures methamphetamine and that also allow an additional, but less severe, punishment because the person possesses drug paraphernalia used to manufacture methamphetamine. The possibility of cumulative punishments for the same conduct is a policy decision for the legislature that should not be undercut by this court. Moreover, the legislative intent directs the discretion of the prosecutor. While the prosecutor may choose to charge an accused under both statutes, that decision would be based on evidence that there was a manufacture and that the accused possessed paraphernalia. [Citation omitted.]” 285 Kan. at 968.
The court went on to say that “[o]ffenses are identical when they have the same elements. [Citation omitted.] In order to determine whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts. [Citations omitted.]” Cooper, 285 Kan. at 966.
Further, the court ruled, “When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap.” 285 Kan. at 967. Here, the facts show that Dalton possessed red phosphorus with the intent to use the product to manufacture methamphetamine. “Accordingly, once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements. That determination is made from the statute.” 285 Kan. at 967.
This rationale is supported by Campbell’s recognition of the legislature’s responses to previous decisions by our appellate courts, which then required the Supreme Court to focus on the overlapping “product” term for its analysis.
“The first ease with which we are immediately concerned is [State v.] Frazier, [30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002)], which was decided in March 2002. At all pertinent times, 'drug paraphernalia has been defined to include ‘products and materials of any land which are used or intended for use in . . . manufacturing [or] compounding ... a controlled substance.’ K.S.A. 65-4150(c). At the time Frazier was decided, K.S.A. 2001 Supp. 65-4152(a) provided that ‘[n]o person shall use or possess with intent to use ... (3) any drug paraphernalia to . . . manufacture ... a controlled substance.’ K.S.A. 2001 Supp. 65-7006(a) provided that ‘[i]t shall be unlawful for any person to possess ephedrine [or] pseudoephedrine . . . with intent to use the product as a precursor to any illegal substance.’ The Frazier panel commented on the difference between the wording of 65-4152 ‘to manufacture a controlled substance’ and the wording of 65-7006 ‘to use as a precursor to any illegal substance’ and stated that, despite the language difference, the statutes ‘require the same requisite criminal intent.’ 30 Kan. App. 2d at 405. Thus, it concluded that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia were identical offenses. 30 Kan. App. 2d at 405.
“On May 17, 2002, the Governor signed a bill that amended both K.S.A. 65-4152 and K.S.A. 65-7006. L. 2002, ch. 155, secs. 3 and 4. Amendments to K.S.A. 65-4152 are not material to this discussion. K.S.A. 65-7006 was amended so that the language difference examined by the Frazier panel was eliminated. K.S.A. 65-7006(a) now states that ‘[i]t shall be unlawful for any person to possess ephedrine [or] pseudoephedrine . . . with intent to use the product to manufacture a controlled substance.’ L. 2002, ch. 155, sec. 4. The legislature also added to the list of products prohibited for possession with intent to use to manufacture a controlled substance. L. 2002, ch. 155, sec. 4.” Campbell, 279 Kan. at 6-7.
An additional argument by the appellant is not persuasive.
With no case support, Dalton argues that K.S.A. 21-4717(a)(1)(D) supports his position. We are not convinced.
K.S.A. 65-7003 defines terms used in K.S.A. 65-7001 through 65-7015 and amendments thereto. Specifically, under K.S.A. 65-7003(1)(17), red phosphorus is a “regulated chemical.” A “regulated chemical” means
“a chemical that is used directly or indirectly to manufacture a controlled substance or other regulated chemical, or is used as a controlled substance analog, in violation of the state controlled substances act or this act. The fact that a chemical may be used for a purpose other than the manufacturing of a controlled substance or regulated chemical does not exempt it from the provisions of this act.” K.S.A. 65-7003(1).
From this definition, Dalton asserts that “materials,” as used in K.S.A. 65-4150(c), include “precursor chemicals.” In support, Dalton cites K.S.A. 21-4717(a)(1)(D). But Dalton fails to point out that the purpose behind this statute is to provide aggravating factors to be considered in determining whether there are substantial and compelling reasons for a departure sentence and not to provide definitions of terms used in the criminal code. K.S.A. 2006 Supp. 21-4717(a)(1)(D) reads:
“(a) The following aggravating factors, which apply to drug crimes committed on or after July 1, 1993, under the sentencing guidelines system, may be considered in determining whether substantial and compelling reasons for departure exist:
“(1) The crime was committed as part of a major organized drug manufacture, production, cultivation or delivery activity. Two or more of the following nonexclusive factors constitute evidence of major organized drug manufacture, production, cultivation or delivery activity:
“(D) The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material.”
Even though possession of red phosphorus can be used as an aggravating factor to support a sentencing departure, it would be incorrect to rely upon K.S.A. 21-4717(a)(1)(D)’s description of manufacturing materials to define drug paraphernalia, i.e. “material of any kind” in K.S.A. 2007 Supp. 65-4150(c), as including “regulated chemicals,” such as red phosphorus. If the legislature wished to define material in that way, it could have done so.
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McAnany, J.:
James A. Boyd appeals the district court’s dismissal of his K.S.A. 60-1501 petition.
In 1992, Boyd pled guilty to a number of violent crimes. He received consecutive sentences of 15 years to life for each conviction and was then transferred to the Washington State Department of Corrections pursuant to the Interstate Corrections Compact (ICC), K.S.A. 76-3001 et seq., where he remains today.
In April 2006, Boyd sent a letter to Roger Werholtz, Secretary of the Kansas Department of Corrections (KDOC), stating that his sentence had been “grossly miscalculated” and that he has not received any “good time” or earned “good time” credit since his incarceration in 1992. In May of 2007, Boyd sent a similar letter to his correctional counselor at the Hutchinson Correctional Facility, asserting the same claims made in April 2006. Both of these letters were identified as “an informal grievance.” We find in the record no response to either of these letters.
On July 9, 2007, Boyd filed this action in Leavenworth County District Court for a writ of habeas coipus pursuant to 28 U.S.C. § 2241 (2000) and 28 U.S.C. § 2254 (2000), raising these same two claims. He alleged that he had exhausted his administrative remedies, citing the earlier described two letters. The district court ordered Werholtz to transport Boyd to the court for an August 30, 2007, evidentiaiy hearing. Before the hearing, Werholtz moved to transfer the case to the Shawnee County District Court, and tire court granted the motion. Upon transfer, Werholtz moved to dismiss the petition or to grant summaiy judgment in favor of Werholtz on the grounds that the district court lacked subject matter jurisdiction because Boyd failed to exhaust his administrative rem-edies. The district court granted Werholtz’ motion to dismiss, and this appeal followed.
Whether a petitioner has failed to exhaust administrative remedies is a question of law over which we have unlimited review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128 (2001).
K.S.A. 75-52,138 requires an inmate in custody to exhaust available administrative remedies before bringing an action in the district court and to file with the petition proof that administrative remedies have been exhausted.
K.S.A. 75-52,138 required Boyd to follow the grievance procedure established by the KDOC. The KDOC grievance procedure for inmates is set forth in K.A.R. 44-15-101 et seq. An inmate must attempt to obtain an informal resolution of the issue before using the grievance procedure. K.A.R. 44-15-101(b). If this fails, then the inmate may proceed with the three levels of the grievance procedure process found at K.A.R. 44-15-101(d) and K.A.R. 44-15-102. Boyd indicated in his two letters that they were “an informal grievance.” He demonstrates no efforts thereafter to commence or to follow the formal grievance process.
Under the ICC, inmates confined in another state “shall at all times be subject to the jurisdiction of the sending state.” K.S.A. 76-3002, Article IV(c). Thus, Boyd is required to follow the KDOC’s grievance procedure, though he is confined in Washington. Furthermore, “confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.” K.S.A. 76-3002, Article IV(e). Boyd’s confinement in Washington does not excuse compliance with the required administrative grievance procedure as a prerequisite to this suit. See Lynn v. Simmons, 32 Kan. App. 2d 974, 978, 95 P.3d 99 (2003).
Boyd argues, however, that his imprisonment in Washington prevented him from using the KDOC’s grievance procedure because he is unable to research Kansas law and does not have access to the KDOC’s grievance forms. He concludes that this should excuse him from the exhaustion requirement.
While Boyd claims he did not have access to KDOC grievance forms, we find no support for this in the record. In his appellate brief he makes references to this claim in his statement of the case but provides no citation to the record. He states no facts to this effect in his statement of facts. In his argument, he makes refer ence to a declaration he filed with the district court. That one-page document is found in volume II of the record at page 142. In it he states:
“That at no time did Respondent Werholtz send the petitioner a formal grievance form. And if Respondent Werholtz wanted the petitioner to file a formal grievance, instead of an informal grievance, respondent should have provided petitioner with the appropriate grievance form.”
Interestingly, in this document Boyd does not assert that he requested a formal grievance form from Werholtz. We find in the record no evidence that Boyd ever made such a request or that such a request, if made, was denied by Werholtz or the KDOC. Boyd seems to suggest, without authority, that Werholtz was required to seek him out and determine if he desired to pursue the formal grievance process. Like him, we find no authority for this proposition.
Boyd claims that due to his incarceration in Washington he “did not have access to Kansas law.” Nevertheless, in his various filings with the district court he made frequent and extensive citations to tire Kansas Constitution, Kansas statutes, and Kansas cases. In his appellate brief, Boyd cites various Kansas statutes, cases, Supreme Court rules, and administrative regulations, all the while confined in Washington. These proceedings commenced less than 2 months following Boyd’s second “informal grievance” letter. He fails to explain the difference between his familiarity with, and access to, Kansas law and administrative regulations when this suit was filed as opposed to the time for pursuing a formal grievance shortly before.
Boyd argues, but fails to demonstrate, that his complaints regarding his sentence calculation and good time credit qualify as a “special problem” that could not be handled pursuant to the KDOC’s grievance procedure. See K.A.R. 44-15-201. He also apparently claims that judicial estoppel applies because Werholtz moved for a change of venue from Leavenworth County to Shawnee County. He asserts that “Mr. Boyd has filed other habeas corpus petitions against the (KDOC) in Leavenworth County, Kansas District Court before, and tire Department never complained, but instead defended against Mr. Boyd’s petition.” Boyd fails to show, and we fail to see, how moving for á change of venue estoppes Werholtz from asserting that Boyd failed to exhaust his administrative remedies.
Because Boyd failed to demonstrate the exhaustion of his administrative remedies, a predicate for the district court’s subject matter jurisdiction, Boyd’s petition failed to state an actionable claim. The district court did not err in dismissing it.
Accordingly, we affirm the district court’s ruling. | [
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Standridge, J.:
Tammy J. Adamson appeals on a number of issues arising out of her personal injury suit against Kody J. Bicknell. Bicknell filed a cross-appeal with regard to a pretrial discovery determination made by the district court. For the reasons stated below, we reverse the district court’s decision to deny Adamson’s motion to amend petition to include punitive damages and accordingly remand for a new trial to include a claim for punitive damages. Moreover, we reverse the district court’s decision to exclude evidence of medical expenses in the amount of $2,823.85 and $6,097.30, medical expenses which ultimately were written off by the medical provider as a bad debt and a commercial adjustment, respectively.
Facts
On July 11, 2003, Adamson was stopped in traffic at a railroad crossing on Highway 69 in Crawford County. Adamson noticed a black truck rapidly approaching her from behind and, anticipating a collision, tried to move her vehicle out of the way. This attempt was unsuccessful and the truck, driven by Bicknell, impacted Adamson’s vehicle and forced her to collide into the rear of another vehicle stopped in front of her.
Although Adamson told those at the scene of the accident that she was all right, she reported to the emergency room later that day and complained of a stiff neck. Bicknell and his passenger were transported to the hospital for their injuries.
Prior to this transport, however, Kansas Highway Patrolman Keith Scott entered Bicknell’s vehicle to search for registration and insurance documentation. According to his deposition, Scott smelled both burnt and raw marijuana in Bicknell’s vehicle. While checking the vehicle’s center console, Scott found marijuana and a pipe. Behind the driver’s seat, Scott also found a nylon bag containing what he believed to be marijuana. After informing the Kansas Bureau of Investigation of his discovery, Scott had the vehicle towed to the Pittsburg Police Department to be searched. The search revealed 19 plastic baggies containing marijuana inside the nylon bag, multiple other bags containing either marijuana or residue, pipes, and a digital scale with marijuana residue. Bicknell was arrested for possession of depressants with intent to distribute. It is unclear from the record whether Bicknell was subsequently prosecuted for the drug charges, but it does appear that he entered into a diversion agreement for driving under the influence and participated in a drug treatment program.
Adamson ultimately brought a negligence suit against Bicknell. Prior to trial, the parties filed a number of motions relevant to this appeal: (1) BicknelTs motion for an order of protection; (2) Adamson’s motion to amend her petition to add a claim for punitive damages; and (3) Bicknell’s motion in limine requesting the exclusion of any evidence of medical expense in excess of that reimbursed by Medicaid.
In his motion for an order of protection, Bicknell petitioned the court for “an order protecting this Defendant from being deposed by one of Plaintiffs two attorneys.” The motion alleged that one of Adamson’s attorneys, Patrick Smith, was “personally involved in a domestic dispute” with Bicknell’s relatives that had “escalated to reported threats of violence and financial ruin” and that allowing Smith to depose Bicknell would cause Bicknell annoyance, embarrassment, oppression, and undue burden.
Although the motion for protective order was heard on April 25, 2006, the district court did not rule on the motion until after the case was over. The hearing transcript is not included in the record on appeal, but Bicknell asserts that the district court verbally admonished Smith to “ 'be cautious’ ” in deposing Bicknell. After this appeal was docketed, Bicknell filed a motion requesting that the district court enter a written order on his motion for a protective order. The district court subsequently issued an order denying the request for protection.
In her motion to amend, Adamson asserted she was entitled to supplement her petition to add a claim for punitive damages because Bicknell was impaired at the time of the accident. In support of the motion, Adamson asserted Bicknell admitted at his deposition to smoking marijuana approximately 4 hours before the acci dent and, when asked whether he was impaired at that time, stated, “At the time I definitely would have said no, that it did not impair me. But now looking back at it, and not doing that stuff for a long time, I’m sure it did have some affect [sic] with why I got in the wreck.” In addition, Adamson referenced Trooper Scott’s report of the accident, which noted that an illegal drug was present and contributed to the crash. Finally, Adamson maintained Bicknell submitted to a urinalysis following the accident, within which he tested positive for marijuana and cocaine.
In opposing Adamson’s request to pursue punitive damages against him, Bicknell asserted there was no evidence he was impaired at the time of the accident and there was no evidence of a causal relationship between his alleged impairment and the accident. As a result, Bicknell argued there was little likelihood a jury would find clear and convincing evidence that punitive damages were warranted.
The district court was persuaded by Bicknell’s argument and ultimately denied the motion to amend. The court found it “unlikely that [Adamson] can prove by clear and convincing evidence that [Bicknell] was under the influence of drugs to such a degree that [Bicknell’s] operation of his vehicle at the time in question constituted willful or wanton conduct.” Adamson filed a motion to reconsider and, in support, submitted the affidavit of a witness who observed Bicknell’s driving just prior to the crash. The witness observed Bicknell speed and pass erratically in a no passing zone. At the time of this observation, the witness expressed a belief that Bicknell would be involved in an accident. Notwithstanding this new evidence, the district court denied the motion for reconsideration on grounds that, again, Adamson failed to show intoxication or causation.
In his motion in limine, Bicknell requested the exclusion of any evidence of medical expense in excess of that reimbursed by Medicaid. Pursuant to a request by the district court that is not in the record on appeal, the parties filed briefs on the issue. The parties agreed that, under Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), superseded on other grounds by statute as stated in Frans v. Gausman, 27 Kan. App. 2d 518, 527, 6 P.3d 432, rev. denied 270 Kan. 897 (2000), expenses written off because of Medicaid reimbursement are not admissible. Adamson argued that this exclusion should not apply to other types of write-offs taken by providers in this case, including alleged write-offs for bad debt, commercial adjustment, or in-network services. Conversely, Bicknell argued that existing law allowed a plaintiff to recover only costs that were reimbursed by Medicaid and that any evidence of other expenses should be excluded.
The district court ultimately permitted introduction of expenses paid by Medicaid, personal injury protection (PIP), and Adamson’s out-of-pocket expenses. However, the court excluded all other hospital and insurance write-offs because “at all times [Adamson] had Medicaid available to her.”
A jury trial was held on the sole issue of damages. Bicknell’s primary defense was that many of Adamson’s injuries and consequent medical expenses were not caused by the accident. Bicknell’s expert physician testified that, in his opinion, Adamson’s carpal tunnel syndrome, ulnar nerve entrapment, tennis elbow, and shoulder injury were not caused by the car accident. The testimony of Adamson’s expert physician, given in a video deposition, is not included in the record on appeal.
During deliberations, the juiy presented two questions to the district court. The first question concerned the evidence of Adamson’s medical bills and asked whether Adamson’s medical expenses were out-of-pocket. After conferring with both parties’ counsel, the court answered:
“The parties have stipulated that the medical expenses represented by Exhibit 7 are reasonable charges for the medical services provided to the plaintiff, therefore, under die evidence of the case there is no dispute that the reasonable charges for medical procedures to the plaintiff are represented by Exhibit 7. The defendant does dispute the necessity of those expenses being caused by the accident. Accordingly, if you find the medical services claimed by the plaintiff to be incurred as a result of the automobile accident, you should award the amounts shown on Exhibit 7. If you find that not all the services were incurred as a result of the automobile accident, you have the discretion to award a lesser amount.”
The second question asked whether “this decision [will] prevent or incur [sic] seeking further damage.” Bicknell pointed out that the question did not refer to future lawsuits, but rather “further damage[s]” and that the court previously had granted Bicknell judgment as a matter of law on the issues of future medical expenses and future lost wages. The court apparently told the jury that it was not to consider additional damages that were not in front of them. The actual answer given to the jury by the court is not included in the record on appeal.
Before the court answered the second question, Adamson moved for a mistrial. In support of mistrial, Adamson claimed statements made by Bicknell’s counsel during closing argument were prejudicial and made in “an attempt to elicit or extract sympathy on behalf of the defendant.” More specifically, Adamson argued Bicknell’s counsel essentially conceded that Bicknell “wasn’t paying attention. . . . And from that day forward we would submit the evidence shows that [Bicknell] has been trying to do what is right,” and that “consistent with [Bicknell] taking responsibility from the beginning, he and I or we or me on behalf of him, have gone through the records that we have.” Adamson also claimed that the presence of Bicknell’s family members at trial, apparently a prominent family in the area, was prejudicial. Finally, Adamson claimed the questions presented by the jury indicated that there was “jury misconduct in considering issues outside of the evidence.”
The district court denied the motion, noting that the comments of Bicknell’s counsel were not evidence, that the court had sustained Adamson’s two objections to the comments and instructed counsel to argue the evidence only, and that the comments were harmless. The court further noted that Adamson’s counsel had made comments of a similar nature to which it sustained objection. On the issue of the presence of Bicknell’s family, the court found that citizens have a right to attend trial, regardless of their relationship to the parties. Regarding the jury questions, the court stated that it had, and would, instruct the jury to limit its consideration to appropriate issues.
The jury found that Adamson sustained damages of $11,100 in medical expenses, $7,500 in economic loss, and $5,000 in present noneconomic loss, for a total award of $23,600.
Adamson moved for a new trial, alleging a number of errors. Adamson first claimed that the verdict was tainted by juror misconduct. In support of this contention, Adamson offered the affidavit of juror B.S., who stated that the jury considered the existence of insurance to pay medical expenses and whether an award to Adamson would “[open] the [doors to] further htigation.” Adamson argued the court must assume these improper considerations influenced the jury's verdict, thus making it invalid. Adamson next argued that the verdict was influenced by the jurors’ passion and prejudice. In support of this contention, Adamson again cited B.S.’s affidavit, in which B.S. stated that three jurors felt that Adamson should get nothing for medical expenses. Adamson claims that no reasonable juror would believe that she was due no medical expenses, so such a belief must have been premised on passion or prejudice. Next, Adamson argued the district court erred in denying her motion to include a claim for punitive damages, in excluding evidence of medical expenses charged, and denying her motion for mistrial based on allegedly prejudicial conduct by Bicknefl’s counsel. Adamson finally argued that the jury’s verdict should be set aside as inadequate and for additur.
The district court denied the motion for new trial. On the issues of juror misconduct and passion and prejudice, the court found that neither the jury’s questions nor B.S.’s affidavit established misconduct because there was no evidence that, once instructed, the jury made improper considerations. The court further found that the conduct of Bicknell’s counsel was not prejudicial. On the issue of punitive damages, the court adopted the reasoning in support of its initial decision to deny Adamson’s motion to amend. Regarding Adamson’s claim that the court erroneously excluded evidence of medical expenses, the court held that, even if the expenses at issue were not reimbursed by Medicaid, there was no evidence that they were ineligible for Medicaid payment and thus they were properly excluded. Finally, the district court upheld the juiy’s damage verdict, finding that it was supported by the evidence.
Adamson appeals, arguing the district court erred (1) in denying her motion to amend her petition to include punitive damages; (2) in denying her motion for a new trial based upon the erroneous exclusion of medical expense evidence; and (3) in denying her motion for a new trial based upon juror misconduct and the influence of passion or prejudice on the jury’s verdict. Bicknell cross-appeals, claiming the district court erred in denying his motion for a protective order preventing Adamson’s counsel from deposing him.
Analysis
I. Did The District Court Err In Denying Adamson’s Motion To Amend Her Petition To Include A Claim For Punitive Damages?
A district court’s decision not to allow an amendment for punitive damages is reviewed for an abuse of discretion. Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999). Judicial discretion is abused when judicial action is arbitraiy, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
Under K.S.A. 60-3703, a plaintiff may only make a claim for punitive damages upon a motion to amend the petition to include such a claim. To that end, the district court may allow an amendment to include punitive damages if, based on the evidence and arguments in support thereof, the court finds “that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” K.S.A. 60-3703. To prevail on a claim of punitive damages, a plaintiff has the burden to prove “by clear and convincing evidence . . . that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice.” K.S.A. 60-3702(c).
The district court, viewing the evidence in the light most favorable to the plaintiff, must consider the plaintiff s burden of proof as cited above when determining whether to grant the amendment. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 801-02, 897 P.2d 123 (1995). As stated in Fusaro, the district court “shall allow the amendment” when “the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice.” The Fusaro court went on to hold that such an “amendment will be allowed when plaintiff has established that there is a probability that plaintiff will prevail on a punitive claim.” 257 Kan. at 802.
In a written journal entry denying Adamson the right to present a claim of punitive damages to the jury, the court found there was
“no clear and convincing evidence by which a rational fact finder could conclude that defendant was smoking marijuana (or cocaine) while he was operating his vehicle or that defendant had smoked marijuana less than four hours before the accident, or that the marijuana smoked four hours prior to the accident was sufficient to affect defendant’s ability to safely operate his vehicle.”
Put another way, the district court determined that Adamson failed to establish the precise amount of marijuana and cocaine in Bicknell’s system at die time of the accident and that, without evidence to quantify the presence of these drugs, it was unlikely Adamson would be able to prove by clear and convincing evidence at trial that Bicknell acted wantonly. See K.S.A. 60-3702(c); K.S.A. 60-3703. We disagree with the court’s determination in this regard.
“Wanton conduct is an act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act.” Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998). “Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of negligence.” 266 Kan. at 314.
As a preliminary matter, we do not believe that a lack of evidence regarding intoxication beyond the legal limit and/or the precise quantity of marijuana and cocaine in Bicknell’s system at the time of the accident is fatal to Adamson’s claim that Bicknell was completely indifferent to the probable consequences of his actions. Wanton conduct is not premised on the existence of a minimum level of intoxication or quantity of drugs in the system. In fact, a finding that the drugs ingested by Bicknell did or did not cause Bicknell to crash into Adamson’s vehicle is immaterial to our analysis of whether Bicknell engaged in wanton behavior. The “wanton conduct” giving rise to the claim for punitive damages “was not the collision, but [Bicknell’s] choice to drive under circumstances that would likely or probably result in a collision.” See Reeves, 266 Kan. at 314-15 (“Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of negligence.”).
We find the evidence presented here was “of sufficient caliber and quality to allow a rational factfinder to find” that Bicknell recklessly disregarded the likely result of his conduct. See Fusaro, 257 Kan. at 802. In other words, we find from the evidence presented here “ ‘that there [was] a probability . . . that plaintiff [would have] prevailed] on [a punitive] claim.’ ” 257 Kan. at 802. Bicknell admitted to smoking marijuana approximately 4 hours before the accident. Moreover, Bicknell submitted to a urinalysis following the accident and tested positive for marijuana and cocaine. Although part of a diversion agreement in a separate case, Bicknell admitted to driving under the influence at the time of the accident. In his deposition, Bicknell acknowledged that marijuana played a role in the accident. There simply is no dispute here that Bicknell was under the influence of drugs when he got behind the wheel of his car, regardless of the extent to which he may have been impaired.
Presented with evidence that Bicknell willfully drove a vehicle under the influence of drugs, regardless of the level of impairment, we believe there was a probability that a juiy would have found by clear and convincing evidence that Bicknell evinced that degree of indifference to the rights of others which may justly be characterized as reckless disregard. Given the evidence presented, no reasonable person could find otherwise. Accordingly, we find the district court abused its discretion in failing to submit the issue of punitive damages to the jury for a determination on the merits.
II. Did The District Court Err In Excluding Evidence Of Medical Expenses That Were Written Off By Medical Providers?
Adamson maintains the district court improperly excluded evidence of medical expenses that were written off by medical providers for reasons unrelated to Medicaid reimbursement. Generally, the admission or exclusion of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s decision to exclude evidence is abuse of discretion. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). With that said, the adequacy of the legal basis upon which the district court relied in coming to such a decision is reviewed de novo. Miller v. Glacier Development Co., 284 Kan. 476, 491-92, 161 P.3d 730 (2007),
The-admission into evidence of expenses that have been paid by a third party is governed by the common-law collateral source rule. The rule generally dictates that
“ ‘benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ [Citation omitted.]
“The collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of‘the payment of any element of those damages by a source independent of the tortfeasor.” ’ [Citation omitted.]” Bates, 22 Kan. App. 2d at 705.
In Bates, this court created an exception to the collateral source rule for write-offs made by providers pursuant to a reimbursement agreement with Medicaid. 22 Kan. App. 2d at 705. The court reasoned that because a provider is statutorily prohibited from charging a patient for the difference between the provider s customary charge for care and the amount reimbursed by Medicaid, “ ‘[i]t would be unconscionable to permit the taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tortfeasor and pocket the windfall.’ [Citation omitted.]” 22 Kan. App. 2d at 706. Under Bates therefore, any evidence of medical expenses written off by a provider because of Medicaid reimbursement must be excluded from trial.
The Kansas Supreme Court next considered the application of the collateral source rule as it applied to medical write-offs in Rose v. Via Christi Health Systems, Inc., 276 Kan. 539, 551, 78 P.3d 798 (2003) (Rose I). Rose I was a medical, malpractice case in which the defendant health care provider had written off certain expenses pursuant to a reimbursement agreement with Medicare. Finding that the collateral source rule applied, the district allowed the plaintiff to present evidence of these written-off expenses. The jury returned a verdict for the plaintiff, and the defendant filed a motion to offset the award by the medical expenses it wrote off. The district court granted the motion to offset, which the plaintiff appealed. The provider cross-appealed the district court’s ruling allowing evidence of the write-offs in the first place. On appeal, the defendant provider claimed that Bates should apply and that evidence of the write-offs should have been excluded, while the plaintiff argued that Medicare should be distinguished from Medicaid and treated like private insurance (and thus subject to the collateral source rule) because “Medicare benefits are purchased by payroll deductions and Medicaid benefits are free to all who qualify.” 276 Kan. at 545.
After reviewing national case law, the court agreed with the plaintiff/appellant. 276 Kan. at 551. The majoritywas guided in this decision by the public policy rationale that the tortfeasor “should bear the full liability of his or her tortious actions without regard to the injured parties’ method of financing his or her treatment” and that any windfall should inure to the benefit of the injured party. 276 Kan. at 551. The court held that Medicare should be treated as private insurance and that the collateral source rule should apply to Medicare payments. 276 Kan. at 551. The court thus implicitly limited Bates to exclude only those provider write-offs made pursuant to Medicaid reimbursement.
The Supreme Court granted a motion to rehear Rose. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 113 P.3d 241 (2005) (Rose II). In Rose II, the Supreme Court applied the collateral source rule to affirm the trial court’s decision to grant an offset to the defendant since the setoff or credit was not provided by a collateral source but, rather, from the tortfeasor itself. The court limited its holding to the specific facts of the case before it in which the Medicare provider “is the defendant and also the health care provider of the services which form the basis of the economic damages claim.” 279 Kan. at 533. In so holding, the court expressly refrained from reaching “the broader issue of whether Medicare or a Medicare write off, when the services are provided by a health care provider that is not a defendant, is a collateral source.” 279 Kan. at 534.
In Rose I, our Supreme Court permitted the admission of evidence of medical expenses written off by a medical provider pursuant to a Medicare contract. 276 Kan. at 551. In Rose II, the court expressly avoided the Medicare/Medicaid distinction in applying the collateral source rule to exclude evidence of medical expenses for services rendered, but written off, by the tortfeasor. 279 Kan. at 533-34. Thus, there presently is no controlling law in Kansas that excludes evidence of medical expenses that are written off by medical providers other than in instances in which the expense is paid by Medicaid (Bates) or in instances in which the provider is the claimed tortfeasor (Rose II).
Adamson maintains the district court improperly excluded the following medical expenses based on an erroneous factual finding by the court that they were written off by the medical provider solely in relation to Medicaid reimbursement: a $3,879.65 “in-network” write-off, a $2,823.85 “bad debt” write-off, and a $6,097.30 “commercial adjustment” write-off. Based on the applicable law as set forth in Bates that evidence of medical expenses written off pursuant to Medicaid requirements must be excluded from evidence, the definitive issue on appeal is whether the district court abused its discretion in deciding that tire write-offs in dispute were made pursuant to Medicaid requirements.
We begin our analysis by reviewing the evidence presented to the district court on this issue. Attached to her trial brief, Adamson submitted to the district court a document dated July 12, 2007, reflecting the current status of her account from Doctors Specialty Hospital. We find it helpful to summarize the relevant portions of this statement. In so doing, we have (1) underlined the payor as designated by the medical provider and (2) italicized those write-offs Adamson contends are unrelated to Medicaid requirements.
Designated Payor: MEDICAID
01/17/05 Original Balance 19,292.59
02/04/05 Medicaid Payment -1,085.81
02/04/05 Medicaid Adjustment -14,327.13
10/31/06 In-Network Adjustment -3,879.65
Current Balance: .00
Designated Payor: MEDICAID
05/24/04 Original Balance 3,292.69
07/06/04 Medicaid Payment -297.00
07/06/04 Medicaid Adjustment -2,955.69
Current Balance: 40.00
Designated Payor: SELF-PAY
01/12/04 Original Balance 2,823.85
08/20/04 Bad Debt Write-off -3.00
09/01/04 Self-Pay -3.00
09/10/04 Bad Debt Write-off 3.00
00/00/00 Write-off -2,823.85
Current Balance: .00
Designated Payor: HORACE MANN INSURANCE
11/11/03 Original Balance 10,437.30
02/02/04 Commercial PIP -4,340.00
02/02/04 Commercial Adjustment -6,097.30
Current Balance: .00
A review of the record reveals no additional evidence was submitted to the district court regarding whether the three write-offs in dispute were related to Medicaid requirements. Thus, the district court’s finding (that the medical provider write-offs were related to Medicaid reimbursement) had to have been based on the statement summarized above. We find the evidence does not support the court’s decision in this regard.
As a preliminary matter, the “Self-Pay” designation for medical expenses incurred by Adamson on January 12, 2004, indicates that the designated payor is not Medicaid, but Adamson herself. Similarly, the “Horace Mann Insurance” designation for medical expenses incurred by Adamson on November 11, 2003, indicates that the designated payor was not Medicaid, but an insurance company providing personal injury protection (PIP). There simply is no evidence to support a finding that the $2,823.85 bad debt write-off or the $6,097.30 commercial adjustment write-offs made by the medical provider were related to Medicaid reimbursement. Given the complete lack of evidence linking these write-offs to Medicaid, no reasonable person could find otherwise. Given no other controlling law in Kansas excluding them from the scope of the collateral source rule, we find the district court abused its discretion in excluding evidence of these particular write-offs.
Alternatively, the “Medicaid” designation for medical expenses incurred by Adamson on January 17, 2005, indicates that the designated payor was Medicaid. In fact, the statement indicates that the provider received a $1,085.81 payment from Medicaid on February 4, 2005, and, on that same day, the provider wrote off $14,327.13 using the designation “Medicaid Adjustment.” Almost 2 years after the $14,327.13 Medicaid write-off, the provider wrote-off an additional $3,879.65, this time designating the write-off as an “In-Network Adjustment.” There is no further explanation of this adjustment in the record. Although the designation contains no reference to Medicaid and there is no indication that this amount was billed to Medicaid or that Medicaid refused to pay the bill, we find sufficient evidence to support a finding that the adjustment was related to Medicaid reimbursement. More specifically, the statement indicates that $19,292.59 in medical expenses were incurred by Adamson for care received on January 17, 2005. Given the provider received a $1,085.81 payment from Medicaid on February 4, 2005, with regard to this care, it is reasonable to conclude that Medicaid, as the designated payor for the services provided on this day, was billed the entire $19,292.59 and paid only $1,085.81. Under these circumstances, the evidence supports a finding that the October 31, 2006, write-off in the amount of $3,879.65 was related to the February 4, 2005, Medicaid reimbursement. As such, the district court did not err in excluding evidence of this particular write-off.
III. Did The District Court Err In Denying Adamson’s Motion For New Trial?
Given our decision, as set forth in the conclusion below, to remand this case for a new trial, it is unnecessary for us to consider Adamson’s claim that the district court erred in denying her motion for a new trial on grounds that there was juror misconduct and that the jury came to its verdict under the influence of passion or prejudice.
IV. Did The District Court Err In Denying Bicknell’s Motion For Protective Order?
The final issue in this case is Bicknell’s cross-appeal of the district court’s decision to deny his motion for a protective order. In his motion, Bicknell requested that Adamson’s attorney Patrick Smith be prevented from conducting Bicknell’s deposition. At a hearing on the motion, the court declined to grant Bicknell’s request and directed Smith to “ ‘be cautious’ ” in deposing Bicknell. Given the deposition went forward as planned, we find the issue raised by Bicknell in his cross-appeal is moot because there is no longer a remedy available in law. To that end, the controversy submitted by Bicknell on appeal already has been resolved and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned. See In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002).
Conclusion
For the reasons set forth above, we reverse the district court’s decision to deny Adamson’s motion to amend petition to include punitive damages and accordingly remand for a new trial to include a claim for punitive damages. Moreover, we reverse the district court’s decision to exclude evidence of medical expenses in the amount of $2,823.85 and $6,097.30, medical expenses which ultimately were written off by the medical provider as a bad debt and a commercial adjustment, respectively. At the new trial, the district court shall deem these expenses to be within the scope of the collateral source rule and therefore allow introduction of them as evidence. Finally, we dismiss as moot the discovery issue raised by Bicknell in his cross-appeal.
Dismissed in part, reversed in part, and remanded with instructions.
Although the statement identifies the bad debt write-off as $3.00, we deem this to be an accounting error based on arguments set forth by Adamson in her trial brief, which are supported by the fact that the original balance for this service was $2,823.85 and the current balance is $0. Accordingly, we have included an undated bad debt write-off for the correct amount of $2,823.85. | [
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Lyle, J.:
Marcus Wilson appeals his conviction of presenting a false claim, in violation of K.S.A. 21-3904, and of presentment of claims not incurred, in violation of K.S.A. 75-3202.
The first issue is whether it was improper to charge and convict defendant under both K.S.A. 75-3202 and K.S.A. 21-3904. Defendant argues, in this issue of first impression, that K.S.A. 75-3202 is a specific statute and K.S.A. 21-3904 is a general statute, thus, K.S.A. 75-3202 controls. K.S.A. 75-3202 provides:
“Any state official or employee who shall present an account for expenses incurred which were not in fact incurred, or shall present an account in excess of expenses actually traveled in the discharge of public duties, shall be guilty of a misdemeanor and shall be fined not to exceed one thousand dollars or imprison ment in the county jail not to exceed six months, or both such fine and imprisonment, and upon conviction shall forever thereafter be disqualified from holding any office of profit or trust under the laws of the state of Kansas.”
K.S.A. 21-3904 provides:
“Presenting a false claim is knowingly and with intent to defraud presenting a claim or demand which is false in whole or in part, to a public officer or body authorized to audit, allow or pay such claim.
“Presenting a false claim for fifty dollars ($50) or more is a class E felony. Presenting a false claim for less than fifty dollars ($50) is a class A misdemeanor.”
The State contends these statutes are complementary. The State argues that since a conviction under K.S.A. 21-3904 requires the prosecution to prove a specific intent to defraud, while no showing of intent is required under K.S.A. 75-3202, the offenses are separate and distinct and defendant was properly convicted under both statutes. See, e.g., Vernon’s Kansas Crim. C. § 21-3905, Authors’ Comments, p. 149 (1971).
In arguing that K.S.A. 75-3202 and K.S.A. 21-3904 are complementary, the State contends that the charges were not multiplicitous. “Multiplicity” in a criminal action is the charging of a single offense in several counts. State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984); State v. Dorsey, 224 Kan. 152, 154, 578 P.2d 261 (1978). See also State v. Hicks, 11 Kan. App. 2d 76, 79-80, 714 P.2d 105 (1986). In the present case, defendant does not raise the issue of multiplicity. The proper issue in this case is whether K.S.A. 75-3202 is a specific statute which controls over a more general statute, K.S.A. 21-3904. It appears that the State is actually contending that K.S.A. 75-3202 is not a specific statute and thus should not be the exclusive offense for which defendant could be convicted.
“[A] special statute prevails over a general statute unless it appears that the legislature intended to make the general act controlling.” (Emphasis in original.) Seltmann v. Board of County Commissioners, 212 Kan. 805, 811, 512 P.2d 334 (1973).
“Repeals by implication are never favored and a general and specific statute should be read together and harmonized wherever possible. But to the extent of repugnancy between a statute dealing generally with a subject and another statute dealing specifically with a subject, the specific statute is favored and controls. [Citations omitted.]” State v. Makin, 223 Kan. 743, 745, 576 P.2d 666 (1978).
See also State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
“ ‘A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.’ ” 212 Kan. at 810, quoting 82 C.J.S., Statutes § 163, p. 277.
K.S.A. 75-3202 is a specific statute because it pertains to a particular class, state employees, and addresses a specific subject, presenting an account for expenses not incurred.
Defendant relies on State v. Kliewer, 210 Kan. 820, 504 P.2d 580 (1972). In that case, Kliewer was convicted of turning back an odometer used for registering mileage on a motor vehicle contrary to K.S.A. 1971 Supp. 8-611, and of committing a deceptive commercial practice, K.S.A. 1971 Supp. 21-4403. The single act upon which both charges were based was turning back and resetting a car’s odometer. The Kansas Supreme Court ruled that 8-611 is a specific statute, whereas 21-4403 “is general in its application, embracing a far greater range of activity pertaining to deception, fraud and misrepresentation of material fact.” 210 Kan. at 826. The court concluded that the statutes were not repugnant to each other but, rather, could be harmonized because 8-611 dealt specifically with the deceptive practice for which Kliewer was charged, and 21-4403 dealt generally with the same deceptive practice. 210 Kan. at 826. The court held that Kliewer was charged and convicted on two counts for the same wrongdoing which constituted but one offense. Noting that a specific statute controls over a general statute, the court overturned Kliewer’s conviction of committing a deceptive commercial practice in violation of 21-4403.
Defendant also relies on the Judicial Council comment following K.S.A. 21-3904, which was enacted subsequent to K.S.A. 75-3202. The comment provides in relevant part:
“Except for mileage and subsistence expenses (K.S.A. 75-3202), fraudulent claims against governmental agencies were prosecuted under general statutes relating to fraud, peijury, etc. The section, based on the Minnesota law, intended to expedite the prosecution of such offenses by providing a specific violation. K.S.A. 75-3202 which has special application to false expense accounts by public employees probably need not be repealed in view of its limited scope.” (Emphasis added.)
Defendant argues that this comment demonstrates that K.S.A. 75-3202 is a specific statute which is to be solely applied to cases involving false expense vouchers. Defendant notes that the purpose of K.S.A. 21-3904 was to expedite prosecutions for fraudulent claims against governmental agencies which previously had to be pursued under more general fraud and peijury statutes. Defendant contends that claims involving mileage and subsistence expenses are exceptions to K.S.A. 21-3904 because they are expeditiously prosecuted under K.S.A. 75-3202. Defendant argues that, by retaining K.S.A. 75-3202, the legislature intended to exclude false mileage and subsistence claims from the operation of K.S.A. 21-3904 because the same subject is specifically covered by K.S.A. 75-3202.
The State argues that the legislature did not intend for state employees who file false expense vouchers to be convicted solely under K.S.A. 75-3202. Presenting a false claim over $50 in violation of K.S.A. 21-3904 is a class E felony, while a violation of K.S.A. 75-3202 is an unclassified misdemeanor. The State argues that the legislature did not intend that a misdemeanor conviction result when a state employee, who holds a position of trust and owes a fiduciary duty to his employer, files a false claim with the intent to defraud. According to the State, a person who owes no fiduciary duty to the State of Kansas could be convicted of a felony for the same act which could result in only a misdemeanor conviction if the accused were a state employee. The State contends that if the intent to defraud can be proven, the legislature intended to severely punish dishonest state employees by allowing a conviction under both statutes. It should be noted, however, that while K.S.A. 75-3202 provides for a misdemeanor sentence (fine of less than $1,000 and no more than six months’ incarceration), it also contains a mandatory provision which forever precludes the offender from holding an office of profit or trust under the laws of Kansas.
We conclude that in the case at bar, the defendant, a state employee, was included in the particular class addressed by K.S.A. 75-3202 and that he committed the particular act which the statute made unlawful. K.S.A. 75-3202 is the specific statute which must control.
The next issue before the court is whether the district court erred in admitting the telephone bill of the probation office located in Coffeyville, Kansas.
As a court services employee, defendant was provided a calling card which enabled him to make business-related long distance phone calls. Charges for these calls were billed to and paid by Montgomery County. During cross-examination of defendant, the prosecution introduced copies of the court services’ office phone bill which included itemizations for calls made by defendant. The prosecution used the phone bills to impeach defendant’s testimony. Defendant testified on direct examination that he arrived in Lawrence after 6:00 p.m. on November 9,1984; however, the phone bill demonstrated that he made a call from Lawrence to Kansas City, Missouri, at 4:47 p.m.
Subsequently, the prosecution presented foundation testimony by Bessie Scofield, Clerk of the Montgomery County District Court. Scofield testified that the portion of the phone bills consisting of the itemized long distance phone calls are kept under her care and that they are kept in the regular course of her business. On cross-examination, Scofield stated that she had not prepared the records nor did she have personal knowledge concerning the accuracy of those records.
Defense counsel entered a timely objection, contending that the prosecution failed to lay a proper foundation for the admission of the telephone company’s billing records. Defendant’s motion was denied and the phone bills were admitted as State’s Exhibit No. 10.
On appeal, defendant does not challenge the authenticity of the telephone records. See K.S.A. 60-464. Defendant argues that, while the custodian of the records from the phone company need not have testified, someone who was qualified by knowledge of the facts was required to identify the phone records.
“The admission into evidence of business records falls within the exception to the hearsay rule governed by K.S.A. 60-460(m) which provides for the admission of‘writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.’” Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. 646, 646-47, 556 P.2d 198 (1976).
See also K.S.A. 1985 Supp. 60-460(m).
“K.S.A. 60-460(m) does not require that the custodian of business records be called to lay the foundation facts for their admission into evidence. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. The policy of this section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness. [Citation omitted.]” (Emphasis added.) State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984).
See also Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. at 647. Here, defendant argues that Scofield was without knowledge of the facts and thus her testimony was insufficient to warrant the admission of the phQne records.
In State v. Beasley, 205 Kan. 253, 469 P.2d 453 (1970), cert. denied 401 U.S. 919 (1971), a pawnshop record signed by Beasley was admitted to show that Beasley purchased the handgun used in a murder. The Minnesota pawnshop was owned by a father and son. The father did not testify at trial but, rather, foundation testimony was presented by the son. The son testified that he brought the record of the sale of the gun with him from his place of employment and that he and his father worked together when the weapon was sold. The son identified the record and pointed out which entries were made by him and which were made by his father. The son entered the name, address, and permit number of their pawnshop. The father recorded the description of the purchaser who signed the record with the name S.E. Beasley, and recorded the date and time of the sale and the caliber, make and serial number of the gun. Our Supreme Court held that the son’s testimony was sufficient to lay the foundation for the admission of the pawnshop record under K.S.A. 60-460(m) and that it was unnecessary for the father to be called because the son was qualified by knowledge of the facts. 205 Kan. at 256-57.
In the present case, Scofield was merely the recipient of the phone bill and had no knowledge of the facts underlying the record. In Kansas, while it is not always necessary to have the individual who actually made the record lay the foundation, in most cases, foundation testimony has been provided by someone who was a member of the organization which made the record. See State v. Guhl, 3 Kan. App. 2d 59, 60-61, 588 P.2d 957, rev. denied 225 Kan. 846 (1979).
State v. Cremer, 234 Kan. at 594, is the leading case in which a person outside the record-making organization was allowed to provide the foundation. Cremer argued that the evidence presented at his preliminary hearing was inadmissible hearsay and was thus insufficient to show probable cause to hold him for trial. Cremer, a filling station manager, was charged with absconding with the filling station’s receipts for a three-day period. Cremer’s supervisor checked the oil company’s account at a local bank and determined that the receipts for the three-day period had not been deposited. The oil company’s comptroller, who supervised the making and keeping of the company’s records, obtained the bank statements which showed that no deposits had been made. The comptroller was the sole person who provided foundation testimony concerning the bank statements. On appeal, the Kansas Court of Appeals held that, without foundation testimony from a representative of the bank, Cremer was precluded from inquiring into the possibility of an error on the part of the bank and, thus, the lower court erred in admitting the records under K.S.A. 60-460(m). State v. Cremer, 8 Kan. App. 2d 699, 700, 666 P.2d 1200 (1983), aff'd 234 Kan. 594, 676 P.2d 59 (1984). The Court of Appeals, however, upheld the conviction, finding there was still an adequate basis for finding probable cause. 8 Kan. App. 2d at 702. The Kansas Supreme Court affirmed the judgment of the Court of Appeals but not for the reasons stated by the Court of Appeals. 234 Kan. at 603. The Kansas Supreme Court held the Court of Appeals erred in concluding that the bank records were not admissible under K.S.A. 60-460(m). 234 Kan. at 601. Ruling that it was up to the trial court at the preliminary hearing to determine whether the method and circumstances surrounding the preparation of the statements were sufficient to indicate trustworthiness, the Kansas Supreme Court held that the oil company comptroller’s testimony was sufficient to admit the bank records under K.S.A. 60-460(m). 234 Kan. at 602.
“It cannot be denied that the entries contained in bank statements are generated by the owner of the account. Bank statements are relied on every day in the business world to verify the account owner’s financial transactions. We have no hesitancy in holding that bank statements made in the regular course of business and presented to the owner of the account as a record of account transactions are a trustworthy source of information and may be admitted under K.S.A. 60-460(m) as a part of the financial records of the owner of the account.” 234 Kan. at 602.
Relying on Cremer, the State argues that telephone records are relied upon in the business world to verify telephone calls made by the user or subscriber and, thus, they are as trustworthy as bank records. Defendant seeks to distinguish Cremer on the basis that, unlike Cremer, the telephone records were not regularly relied upon for the purpose of verifying the phone calls of the court’s employees.
While telephone records may not always be accurate, the telephone subscriber generally is able to verify the accuracy of the records. In this case, however, since calls by more than one person appeared on the record, the clerk of the district court, the subscriber, could not readily and independently verify the calls which were itemized on the record.
The defendant admitted making the calls in question. The only dispute surrounds the time when the calls were made. Arguably, a telephone company employee should be required to testify as to how the time of a call is recorded.
In Cremer, our supreme court stated that the bank statements were made and received in the regular course of business at or about the time of the act or event recorded. 234 Kan. at 602. In the present case, the trial court made no express determination as to whether the phone records were made or received in the regular course of business, nor did it make a determination as to their trustworthiness.
We therefore conclude that the telephone records were improperly admitted. We cannot find, however, that this erroneous admission prejudiced the defendant. It has repeatedly been held that “errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, when substantial justice has been done, do not require reversal.” State v. Mitchell, 234 Kan. 185, 196, 672 P.2d 1 (1983). Here, the phone records were used to impeach defendant’s credibility. Since a conviction for presenting a false claim, K.S.A. 21-3904, requires a showing of intent to defraud, defendant’s credibility was clearly at issue.
On the other hand, defendant provided several other bases for rational jurors to doubt his credibility. For example, defendant was mistaken as to the meetings in Wichita and Lawrence. Contrary to defendant’s statements, Amy Cullom testified that she never told defendant there would be a meeting in Wichita on November 9,1984. Further, defendant had received a copy of the minutes from a previous BCSOA meeting which stated that the November meeting was to be held on November 12, 1984. Defendant testified that he believed the date was a typographical error and changed the date to the 10th by wiping out the “2” with “correcto” tape, typing in a “0” and then photocopying the minutes which showed the altered date. Defendant admitted lying to the county investigator during the investigation. Further, defendant submitted vouchers which overstated the amount of time he spent on county business.
In Wilhoit v. State, 638 S.W.2d 489 (Tex. Crim. 1982), the court erroneously admitted a telephone bill. Wilhoit argued that the error was not harmless because of the prejudicial effect it had on his credibility. The Texas appellate court held that, since the jury was given other bases for doubting Wilhoit’s credibility, the error was harmless. 638 S.W.2d at 497.
The improper admission of the telephone record into evidence was harmless error as the jury had numerous other basés for doubting the defendant’s credibility.
The last issue on appeal is whether the trial court erred in allowing the prosecution to use the Coffeyville court service office telephone records when the existence of such records had not been disclosed to the defendant. In view of our finding that the admission of the telephone records was harmless error, this issue will not be considered.
The defendant’s conviction under K.S.A. 21-3904 is reversed. The defendant’s conviction under K.S.A. 75-3202 is affirmed. | [
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Davis, J.:
This is a trip and fall personal injury action brought by Susan Chambers (Chambers) against Skaggs Companies, Inc., (Skaggs). The jury found Chambers’ damages to be in the amount of $22,500.00 and found her 40 percent at fault and Skaggs 60 percent at fault. On Skaggs’ motion for judgment notwithstanding the verdict, the trial judge set aside the verdict and entered judgment for Skaggs. Chambers timely appeals.
On January 12, 1984, during the noon hour, Susan Chambers went to the Skaggs store in Indian Springs Mall to purchase several balls of string. Chambers was working at another store in the mall and was familiar with the layout of the Skaggs store, where she frequently shopped during her lunch hour. She knew where the string was and walked directly down the aisle, looking slightly upward. The string was on a top shelf, toward the middle aisle. Chambers picked up three or four balls of twine, turned to go back to the cashier, and tripped on a small box in the aisle. The box was approximately nine inches high and contained cans of a product called Fix-A-Flat.
Chambers was taken to the hospital and diagnosed as having a broken elbow caused by her fall.
Prior to trial, Skaggs moved for summary judgment. In a memorandum opinion, the trial court denied this motion on the ground that an issue of material fact existed. At the close of Chambers’ case, Skaggs moved for a directed verdict and filed suggestions in support of its motion. The trial court overruled this motion, finding that a question of fact remained. Skaggs presented no evidence. The case was submitted to the jury. The jury verdict was overturned on Skaggs’ motion for judgment notwithstanding the verdict, and this appeal followed.
In sustaining Skaggs’ motion for judgment notwithstanding the verdict, the trial court based its decision on a recent Kansas Supreme Court case, Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, 708 P.2d 171 (1985). Sepulveda involved a personal injury action arising by reason of a claimed defect in a sidewalk leading into the Duckwall-Alco store. Sepulveda is a sidewalk defect case. It has long been recognized in Kansas that “[s]light variances or imperfections in sidewalk surfaces are not sufficient to establish actionable negligence in the construction or maintenance of sidewalks.” Sepulveda, 238 Kan. 35, Syl. ¶ 1. At the base of this doctrine is the recognition that “[i]t may be said to be common knowledge that in cities there are many places where the sidewalks are uneven.” The cities’ “only duty in this respect is to furnish walks that are reasonably safe for use. [Citations omitted.] To impose a greater duty upon cities would be to place upon them too great a financial burden.” Taggart v. Kansas City, 156 Kan. 478, 480, 134 P.2d 417 (1943). Thus, “[i]f there is no actionable defect, there is no negligence and thus nothing to compare.” Sepulveda, 238 Kan. at 40.
We find nothing in Sepulveda that suggests this threshold consideration of whether or not there is an “actionable defect” should be applied to store owners. Based upon the authority cited in Sepulveda and its specific holding, we find its application is limited as set forth in the opinion to sidewalk defects. Sepulveda harmonizes with reason and common experience and is grounded upon a common-sense rationale:
“To require a higher degree of care in street and sidewalk maintenance than the current ‘reasonably safe for use’ standard would make such public improvements financially prohibitive, particularly in this state where the wide variation in temperature causes much contraction and expansion of paving material.” 238 Kan. at 39.
Although it may have been improper to find the Fix-A-Flat box in the store aisle to be a nonactionable defect within the rationale of Sepulveda, our inquiry does not end here. If the proprietor of Skaggs breached no duty as a matter of law, there is no negligence and, thus, nothing for the jury to compare. In Wasson v. Brewer' s Food Mart, Inc., 7 Kan. App. 2d 259, 640 P.2d 352, rev. denied 231 Kan. 802 (1982), this court reviewed the basic elements that must be established to support a negligence cause of action:
“Tort recovery in negligence is premised on causal fault. A jury verdict in favor of a plaintiff in a negligence action must be supported by substantial competent evidence demonstrating (1) that the plaintiff was injured (or suffered other damage); (2) that the defendant was negligent (at fault); and (3) that the defendant’s fault was the cause of plaintiff s injury (or other damage). (Emphasis added.) 7 Kan. App. 2d 259, Syl. ¶ 1.
The standard to be followed by the trial court in ruling on a motion for judgment notwithstanding the verdict, as well as the standard of review applied by this court on appeal, is set forth in Augusta Bank i? Trust v. Broomfield, 231 Kan. 52, 57, 643 P.2d 100 (1982):
“In deciding a motion for judgment notwithstanding the verdict, the trial court must determine whether there is any substantial evidence to sustain the verdict. Apperson v. Security State Bank, 215 Kan. 724, 732, 528 P.2d 1211 (1974). The trial court is required to view the evidence and inferences therefrom most favorable to the party against whom the motion is made. Hallett v. Stone, 216 Kan. 568, 577, 534 P.2d 232 (1975). Traylor v. Wachter, 227 Kan. 221, 228, 607 P.2d 1094 (1980), states:
“ ‘The court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury. [Citations omitted.] The appellate court must do the same.’ ”
See Swanston v. McConnell Air Force Base Fed’l Cred. Union, 8 Kan. App. 2d 538, 540, 661 P.2d 826 (1983); Coffey v. Stephens, 3 Kan. App. 2d 596, 597, 599 P.2d 310 (1979).
Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 494, 485 P.2d 1309 (1971), discusses the trial court’s considerations when ruling on a motion for judgment notwithstanding the verdict under K.S.A. 60-250(b):
“[K.S.A. 60-250(b)] permits the trial to proceed to a conclusion and then a judge is permitted to reconsider these motions. The statute does not give a trial court free reign to substitute its judgment for that of a jury. [Citations omitted.] The standard to be used in measuring a defendant’s motion for a directed verdict or for a judgment notwithstanding the verdict is the same. The question to be asked is whether there is any substantial evidence to sustain a verdict and judgment for plaintiff. Such motions should be sparingly and cautiously granted. [Citations omitted.]” (Emphasis added.)
“The proprietor of a store owes a duty to customers and other invitees to use care to keep the premises in a reasonably safe condition.” Fisher v. Sears, Roebuck & Co., 207 Kan. 493, Syl. ¶ 1. “A store proprietor is not an insurer of the customers’ safety.” Fisher v. Sears, Roebuck & Co., 207 Kan. 493, Syl. ¶ 2. See Warren v. T. G. & Y. Stores Co., 210 Kan. 43, 499 P.2d 201 (1972). Mere proof of a dangerous condition on the property owner’s premises does not render the owner liable to the invitee for any accident that may occur therein; the mere fact that an invitee slips and falls on the floor of the inviter’s property does not raise an inference of negligence. Carter v. Food Center, Inc., 207 Kan. 332, 335, 485 P.2d 306 (1971). The proprietor must have some knowledge of the condition, either actual, constructive, or inferred, to establish liability. Carter v. Food Center, Inc., 207 Kan. at 335.
In Little v. Butner, 186 Kan. 75, 348 P.2d 1022 (1960), the Kansas Supreme Court defined two separate situations, one where proof is required that the premises owner knew or should have known of the dangerous condition, and the other where such proof is not required. The court stated:
“With respect to the necessity of proof that the proprietor of a store in which the plaintiff was injured in a fall on an interior floor had notice of the dangerous condition, the cases are divided into two classes: (1) injuries to customers caused by dangerous conditions negligently created or maintained by the proprietor or his servants [citations omitted], and (2) injuries due to dangerous conditions coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business [citations omitted]. Under the former, the condition is one which is traceable to the proprietor’s own act, that is, a condition created by him or under his authority, or is one in which he is shown to have taken action, and proof of notice is unnecessary.” Little v. Butner, 186 Kan. at 81.
See Elrod v. Walls, Inc., 205 Kan. 808, 810-11, 473 P.2d 12 (1970).
The evidence in this case established that the condition was “traceable to the proprietor’s own act.”
Chambers was familiar with the layout in the store because she usually shopped there during her lunch hour. From experience, she knew the location of the string and walked directly to it without browsing. She testified that on previous occasions she had seen boxes of products sitting in the aisles.
On the day she fell, Chambers had on low-heeled shoes and was not hurrying. The floor of the store was not slick or sticky. The lighting in the store was good, Chambers could see things in front of her, and she could see' the end of the aisle. Chambers testified that nothing about the floor or the lighting made her fall.
Chambers was not distracted, but she was not looking at the floor. She was looking to the spot where the string was located. She walked approximately 43 to 56 feet down an aisle, without seeing the box, until she reached the string. Upon finding the string, she picked up three or four balls, turned around to return to the check stand, and, at that point, tripped over the box. The evidence demonstrates that the aisle was wide enough for three people to walk side by side. Based upon this evidence, the jury concluded that Chambers was 40 percent at fault.
The box that plaintiff tripped over was a small box containing cans of a product called Fix-A-Flat. It was approximately nine inches high and was not located near the Fix-A-Flat shelf display. A Skaggs employee testified the store had no stocking policy, but that merchandise was to be brought out and placed on the shelves as soon as possible. There was no written policy at the Skaggs store explaining the procedure of moving stock from the storeroom to the display shelves. The Skaggs employee further indicated that for brief periods of time stock would be left on the floor unattended. Plaintiff testified she saw no Skaggs employee in the aisle before she fell. Based upon this evidence, the jury concluded, together with all other evidence of record, that Skaggs was 60 percent at fault.
In a liability action, negligence may be decided as a matter of law only when reasonable persons could not reach differing conclusions concerning the same evidence. Mechtley v. Price, 217 Kan. 344, 536 P.2d 1385 (1975); Popejoy Construction Co. v. Crist, 214 Kan. 704, 522 P.2d 180 (1974). With evidence that the defendant had no stocking policies, often left stock on the floor unattended, and left a relatively small Fix-A-Flat box in the customer walking aisle, the issue of Skaggs’ negligence was one for the jury to decide. The facts of this case are such that reasonable minds could reach differing conclusions concerning the obligation of Skaggs, and, thus, the case should not have been decided as a matter of law.
Defendant relies on Warren v. T. G. & Y. Stores Co., 210 Kan. 43, in arguing that it was not negligent as a matter of law. Although factually almost identical to the instant case, Warren speaks only to the plaintiff s contributory negligence, not to the defendant’s lack of negligence as a matter of law. The court stated:
“In the case at bar the trial court made no finding as to the sufficiency of the evidence to prove negligence on the part of the appellee as proprietor of the store. That being true, we will not determine this case on that issue but will turn our attention to the question of whether or not the appellant, Mrs. Warren, was guilty of negligence which barred her recovery as a matter of law.” Warren v. T. G. & Y. Stores Co., 210 Kan. at 45.
The result in Warren would not be the same under our current comparative negligence statute, as a plaintiff s contributory negligence no longer bars recovery as a matter of law. The same is true for the case of Florence v. McCullough, 211 Kan. 504, 506 P.2d 1145 (1973), in which the court found the plaintiff contributorily negligent and affirmed the trial court’s summary judgment decision.
Defendant also cites George v. Ayesh, 179 Kan. 324, 295 P.2d 660 (1956), and Fisher v. Sears, Roebuck and Co., 207 Kan. 493. These cases are factually distinct from the case at hand.
In George v. Ayesh, the plaintiff tripped and fell in the storeroom of defendant’s retail liquor store. The court found plaintiff s evidence did not establish a hidden, dangerous defect, actionable under Kansas law. The cardboard filler plaintiff tripped on was not in the public areas of the store, but rather in the storeroom, a place that customers generally do not frequent and where cardboard boxes are generally found in abundance. Furthermore, plaintiff in George was a salesman, not a retail customer. Additionally, it was held that the plaintiff was guilty of contributory negligence as a matter of law. George, 179 Kan. at 327.
In Fisher, the plaintiff tripped over the corner of a platform displaying a life-size mannequin. The trial court in that case held that the evidence was clearly insufficient as a matter of law to establish defendant’s negligence. Fisher v. Sears, Roebuck & Co., 207 Kan. at 496. The display appliance was something normally used in a retail store, and there was no evidence that the proprietor failed to keep the display appliance in a reasonably safe condition. The display appliance was not a dangerous condition in itself, whereas a small box not in its proper location and lying in the aisle may constitute such a condition.
In the case at hand, a conclusion that defendant did not violate its duty to customers to keep the premises in a reasonably safe condition could not be made as a matter of law. Thus, the trial court erred in setting aside the jury verdict.
Reversed and remanded for entry of judgment on the jury verdict. | [
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Abbott, J.:
This is a personal injury case. A directed verdict was entered in favor of the plaintiff on the issue of liability. The jury determined plaintiffs damages to be $5,978.90. Plaintiff appeals, raising four issues. We reverse.
The plaintiff complains that the trial court limited opening statements to ten minutes and disallowed the use of demonstrative evidence in presenting the opening statement.
The time limitation placed on opening statements is subject to the control of the trial court in the exercise of its discretion. 75 Am. Jur. 2d, Trial § 204. The lengthiness or brevity of opening statements is largely within the discretion and control of the trial court. Caldwell v. Skinner, 105 Kan. 32, 181 Pac. 568 (1919). Thus, the plaintiff must demonstrate an abuse of discretion by the trial court in allowing only ten minutes for each opening statement. Moreover, in addition to overcoming this difficult burden of proof, the plaintiff has not preserved this question for appellate review. The plaintiff did not object in the trial court to the time limit placed on opening statements. The issue is not properly before us because plaintiff failed to request additional time or object to the amount of time the trial court allowed. We hold that the trial court did not abuse its discretion in limiting the opening statements to ten minutes per side.
We see no reason or need to restrict the use of demonstrative evidence in an opening statement unless a genuine and unresolved question exists as to its admissibility. Demonstrative evidence is a valuable tool in “setting the stage.” It will enable the jurors to understand what is going to be presented so that they see the whole picture rather than “bits and pieces,” or what might otherwise appear to be disjointed and meaningless evidence. We are unwilling to hold that it was reversible error in this case, because we cannot tell from the record exactly what plaintiff wanted to use or whether all of what plaintiff wanted to use was ultimately introduced into evidence.
The plaintiff contends that damages of $5,978.90 as determined by the jury in this personal injury action are inadequate and indicate passion and prejudice by the jury when there was evidence adduced at trial that plaintiff incurred medical expenses alone totaling $15,457.83.
When a verdict is so inadequate as to indicate partiality, passion or prejudice, it should be set aside and a new trial granted. Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369 (1968); Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P.2d 112 (1965); Putter v. Bowman, 7 Kan. App. 2d 323, 641 P.2d 411, rev. denied 231 Kan. 801 (1982). An inadequate verdict in the face of uncontroverted testimony indicates passion and prejudice and justifies the granting of a new trial. Briscoe v. Ehrlich, 9 Kan. App. 2d 191, 674 P.2d 1064, rev. denied 235 Kan. 1041 (1984). For the purpose of reviewing the adequacy of a verdict, each case stands on its own facts. An examination of the cases challenging the sufficiency or insufficiency of a verdict for damages reveals no simple, symmetrical pattern or design. McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984).
The verdict rendered in this case was not the result of the jury’s disregard of uncontroverted testimony. The issue was whether all of the medical treatment incurred by the plaintiff was medically necessary. While plaintiff introduced into evidence the hospitalization, medical and drug prescription bills, and provided testimony of tests and procedures from the treating physicians, the defendant countered with the testimony of Dr. Edward Prostic, an orthopedic surgeon employed by defendant, who opined that only the first hospitalization was medically necessary. Thus, the jury could have, and probably did, accept the defendant’s contention that some of the medical expenses were unnecessary and, therefore, disallowed recovery for some of plaintiff s treatment. In these instances, the extent of recovery boils down to the credibility of the witnesses. This assessment, of course, is left to the trier of facts. We would be reluctant to reverse on the issue based on the record before us. We need not decide this issue, however, because of the result we reach on the next two issues.
The trial court refused to allow Dr. Ernest Neighbor to testify as an expert witness because he was not identified in an interrogatory answer or the plaintiffs witness list as an expert. The trial court would have allowed Dr. Neighbor to testify as a “fact” witness. When faced with the limitation of testimony to his care and treatment of plaintiff, the plaintiff opted to not call Dr. Neighbor at all.
The record on appeal indicates that defendant properly sought discovery through interrogatories to the expert witnesses plaintiff intended to call at trial. Under K.S.A. 60-226(b)(4) (A)(i), the identity of the expert, the subject matter of the expert’s testimony, the substance of the facts and opinions the expert is expected to testify to, and the grounds for each opinion are all discoverable. In plaintiff s response to one of defendant’s interrogatories, defendant was referred to the plaintiff s witness list in which Dr. Neighbor was listed but was not identified as an expert witness. That interrogatory and answer read as follows:
“16. Pursuant to K.S.A. 60-226, please identify each person (name and address) whom you expect to call as an expert witness at trial, state the subject matter on which the expert is expected to testify, and state the substance of the facts and opinions as to which the expert is expected to testify and a summary of the grounds of each opinion.
“ANSWER: See Plaintiff's Witness List filed herein. (Emphasis supplied.)
“At this time, plaintiff would state that she expects to call all treating physicians of plaintiff, who will testify as to the contents of all medical records and/or their care and treatment of plaintiff. Defendant has previously been supplied medical authorizations to obtain said medical records which contain the substance and opinions as to which said experts are expected to testify.
“Plaintiff expects said experts to state that the injuries sustained involving the cervical spine are of a chronic nature and plaintiff can be expected to have future problems with these injuries. Plaintiff has not objected to defendant’s attorney deposing any of these experts to obtain any information that might not be in the medical records.
“In addition, plaintiff would state that she will be evaluated by Dr. Stanley Butts, a clinical psychologist, and that his report will be made available to defendant and/or defendant may wish to depose Dr. Butts and if so, plaintiff will not object.
“Plaintiff may also call any or all of the persons attending plaintiff in her hospitalizations or any of her physical therapy outpatient visits for shots or otherwise. These persons are listed in the hospital records produced heretofore by plaintiff.”
Obviously plaintiff s answer to the written interrogatory leaves a lot to be desired. The defendant, however, knew that plaintiff intended to call “Dr. Ernest Ft. Neighbors, [sic] M. D.” as a witness. Before trial, plaintiff listed 23 numbered witnesses. Twelve of those were experts in the medical field. They were listed consecutively, and Dr. Neighbor was the 12th medical expert listed. Defendant was obviously not deceived. In defendant’s opening statement (made the day before the court’s ruling that Dr. Neighbor could not give an expert opinion), reference was made to Dr. Neighbor’s seeing the plaintiff.
A trial judge has discretion in this area. Here the trial judge did not find that defendant had been misled or that plaintiff had attempted to mislead defendant. The trial judge clearly has authority to curb' discovery abuses and to see that a fair trial is conducted.
Based on the record before us, we are of the opinion the trial court abused its discretion in limiting Dr. Neighbor’s testimony. We are unable to say Dr. Neighbor’s testimony was cumulative. With the result reached by the jury in this case, we cannot say the exclusion of Dr. Neighbor’s testimony was not prejudicial. The trial court had effective options available other than excluding the expert testimony. Those options ranged from imposing sanctions on plaintiff s attorney to allowing defendant to interview or depose Dr. Neighbor prior to his being called.
The remaining issue in this case involves the admissibility of test material. In addition to the physical examination and diagnostic tests conducted on the plaintiff, Dr. Prostic, the orthopedic surgeon employed by the defendant, administered the Minnesota Multiphasic Personality Inventory (MMPI) test. The MMPI is a psychological test in which the examinee responds with a true or false answer to a series of over 500 statements. After the test was administered, Dr. Prostic sent the plaintiff s answer sheet to Western Psychological Services (WPS) where it was scored and interpreted by computer. WPS then mailed a computer printout back to Dr. Prostic which contained one page of evaluation or interpretation of the plaintiff s profile. Two pages of the report were devoted to scales and scores, two pages reproduced selected inventory statements and the plaintiff s corresponding response, and the balance of the report consisted of each numbered statement from the MMPI test and plaintiff s answer.
Defendant’s counsel sought to admit the computer printout into evidence through Dr. Prostic. Plaintiff timely objected to its admission on the grounds of hearsay and lack of proper foundation. The trial judge overruled the plaintiff s objection and admitted the MMPI computer-interpreted printout. The basis for the trial judge’s ruling is not apparent from the record.
There is little doubt that evidence in the form of a computer printout may constitute hearsay and is inadmissible unless it qualifies under one of the exceptions to the hearsay rule. United States v. Ruffin, 575 F.2d 346, 355-56 (2d Cir. 1978). The most frequently applied exception to overcome the hearsay rule and gain admissibility is the “business records” exception, K.S.A. 60-460(m). Much of the report is not simply a compilation or storage of information or data supplied by the plaintiff. Computer-generated evidence in the form of computer printouts such as bank statements is a common example of the latter. The case law pertaining to computer-generated evidence addresses the admissibility of computer printouts which usually involve the storage of data or information as a record-keeping process. This generally explains why computer evidence ordinarily qualifies under the business records exception. See, e.g., United States v. Miller, 771 F.2d 1219 (9th Cir. 1985); United States v. Croft, 750 F.2d 1354 (7th Cir. 1984); King v. State, 222 So. 2d 393 (Miss. 1969); Brown v. J. C. Penney Co., 297 Or. 695, 688 P.2d 811 (1984); State v. Bradley, 17 Wash. App. 916, 567 P.2d 650 (1977). See generally Annot., Admissibility of Computerized Private Business Records, 7 A.L.R. 4th 8. In our case, however, the printout is not simply a compilation of data supplied by plaintiff. The analysis or interpretative summary makes the computer the declarant of the hearsay evidence.
K.S.A. 60-460(m) provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” K.S.A. 60-460(m).
The analysis portion of the MMPI computer printout report does not qualify under this hearsay exception. Dr. Prostic testified that he routinely used the MMPI test to aid him in the diagnosis and evaluation of a patient. He also indicated that the MMPI was recognized in the practice of orthopedic surgery as an additional diagnostic tool. However, not being a trained psychologist, Dr. Prostic did not score the MMPI tests he administered to patients; he mailed the completed tests into WPS where the patients’ responses were evaluated and interpreted by computer. Hence, the computer printout does not qualify as a writing made in the regular course of Dr. Prostic’s business. It would seem to be more appropriately a business record of the testing service. Dr. Prostic’s function is limited to transferring or providing the data to be analyzed; he is totally unqualified to provide the necessary foundation showing the computer printout’s accuracy and trustworthiness. In essence, Dr. Prostic is not the proper foundation witness. While the necessary foundation for the admission of computer evidence varies from jurisdiction to jurisdiction, there is little, if any, foundation laid by Dr. Prostic in this case. See Annot., 7 A.L.R. 4th 8, and cases cited therein; Roberts, A Practitioner s Primer on Computer-Generated Evidence, 41 U. Chi. L. Rev. 254 (1974).
Expert testimony founded upon hearsay is inadmissible and contrary to K.S.A. 60-456(b). Such opinions are not based on information perceived or personally known or made known to the expert. Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504 (1974); In re Watson, 5 Kan. App. 2d 277, 615 P.2d 801 (1980).
Our situation is analogous to those where the physician-witness’s testimony is founded upon a report and findings made by a different doctor. The only difference in our case is that the report and findings were not made by a person but a computer. The same result should obtain. As noted in Mesecher, this procedure should not be allowed to “bootleg” into evidence inadmissible findings without the benefit of cross-examining the author of the report. In Mesecher, the plaintiff was examined by defendant’s expert, a neurosurgeon. Defendant’s expert prepared a written report of his findings based upon his diagnosis and examination of plaintiff. Instead of calling the neurosurgeon as a witness and subjecting him to cross-examination, defendant’s counsel sought to have plaintiff s treating physician testify as to the contents of the report and the neurosurgeon’s findings. The neurosurgeon’s report had made its way into the file of the treating physician.
Even more on point is State v. Howard, 405 A.2d 206 (Me. 1979), a case dealing with an MMPI evaluation report. In Howard, the accused had taken the MMPI test. A subjective evaluation of the defendant’s profile was prepared by a Mr. Citrin, who had interpreted the accused’s personality based upon his responses to the MMPI. Defendant’s counsel attempted to admit Citrin’s evaluation report into evidence through the treating phychiatrist. However, defendant failed to lay a proper foundation through the psychiatrist to admit the report.
We conclude the trial court erred in admitting the report into evidence and permitting Dr. Prostic to testify concerning the test results.
Reversed and remanded for a new trial. | [
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Brazil, J.:
Defendant appeals his conviction, after trial to the court, of driving under the influence contrary to K.S.A. 1985 Supp. 8-1567. He raises three issues on appeal.
First, he contends the officer did not have sufficient probable cause to arrest him. Actually, he is complaining that the officer did not have sufficient cause to stop his car. K.S.A. 22-2402(1) provides: “Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.” Interpretation of this statute is subject to the Fourth Amendment searches and seizures clause of the United States Constitution. State v. Epperson, 237 Kan. 707, 710, 703 P.2d 761 (1985) (quoting State v. Jackson, 213 Kan. 219, 515 P.2d 1108 [1973]). It applies to stops of automobiles. See State v. Hayes, 3 Kan. App. 2d 517, 597 P.2d 268, rev. denied 226 Kan. 793 (1979). The United States Supreme Court has stated the cause required for an investigative stop of a car this way:
“[T]he essence ... is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the partic ular person stopped of criminal activity. [Citations omitted.]” United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981).
Thus, the officer only had to have a “particularized and objective-basis for suspecting” Zito was intoxicated in order to stop him to investigate that possibility. The officer had that here once he observed Zito exit the Redwood Inn and stagger across the road and back. He did not arrest Zito until he had him perform the field sobriety tests and concluded he was intoxicated.
Next, defendant argues that the arresting officer had a duty to stop him from entering and driving his vehicle if the officer had probable cause to believe the defendant was intoxicated. He relies on State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978), which dealt with preindictment delay. In that case, the court quoted the test on this subject set out in State v. Royal, 217 Kan. 197, 202, 535 P.2d 413 (1975):
“ ‘[T]wo questions must be considered in testing whether there has been an impermissible encroachment on due process rights: (1) Has the delay prejudiced the accused in his ability to defend himself, and (2) was the delay a tactical device to gain advantage over him? Affirmative answers to both questions need be supplied before it may be said that criminal charges should be dismissed.’ ” 224 Kan. at 683.
McCorgary is not applicable here at all. The problem there was a delay in charging a person with a crime once the State had enough evidence to do so, not a delay in charging him with one crime (public intoxication) which then permitted him to commit another. Likewise, the Royal test is inapplicable because it is concerned with loss of evidence for the defense or some other tactical advantage the State gains by delaying indictment. The defendant adds a citation that indicates a court must also consider whether the delays between incident and complaint and between complaint and arrest served any valid law enforcement purpose or interest of the public. See Godfrey v. United States, 358 F.2d 850 (D.C. Cir. 1966) (two-month delay between issuance of complaint and arrest held unreasonable, but two-month delay between incident and complaint held reasonable). He concludes that the officer allowed him to begin driving in order to charge him with the more serious crime of driving under the influence rather than a lesser charge of public intoxication. He argues that this delay was an attempt to entrap him.
We are not aware of any crime of public intoxication in Kansas since 1977 when K.S.A. 21-4109 (Weeks) was repealed. L. 1977, ch. 115, § 1. And while we would agree that, if circumstances permit, the better law enforcement practice would be to attempt to prevent an intoxicated person from driving, we are not convinced from the record on appeal that the officer here had that opportunity. Assuming such an effort was made and assuming defendant had refused to heed the officer’s request, he would then be subject to arrest for attempting to drive a vehicle while under the influence of alcohol which is a violation of the same statute and is not a lesser crime. In any event, we do not agree that the action or inaction of the officer constituted entrapment.
Finally, defendant argues that the court must go beyond a finding of blood or breath alcohol concentration of .10 or above, and find that there was evidence of impaired or erratic driving under K.S.A. 1985 Supp. 8-1567(a)(l). We disagree.
K.S.A. 1985 Supp. 8-1567(a) provides:
“No person shall operate or attempt to operate any vehicle within this state while:
”(l),The alcohol concentration in the person’s blood or breath, at the time or within two hours after the person operated or attempted to operate the vehicle, is .10 or more.”
The clear language of 8-1567(a)(l) makes the fact of driving with such blood or breath alcohol concentration a crime without any further showing being required. This interpretation has been followed in the new PIK Crim. 2d instruction based on the 1985 amendment to 8-1567(a)(l).
“The defendant is charged with the crime of operating or attempting to operate a vehicle while the alcohol concentration in (his) (her) blood or breath [at the time or within two hours after (he) (she) operated or attempted to operate the vehicle] is .10 or more. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant drove or attempted to drive a vehicle;
2. That the defendant, while driving [or within two hours after (he) (she) operated or attempted to operate the vehicle] had an alcohol concentration in (his) (her) blood or breath of .10 or more;
3. That this act occurred on or about the_day of_, 19_, in _County, Kansas.
As used in this instruction, the phrase ‘alcohol concentration’ means the number of grams of alcohol per (100 milliliters of blood) (210 liters of breath).” PIK Crim. 2d 70.01-A
See also Heinemann, Legislation 1985, 54 J.K.B.A. 157 (1985).
“Attempting to operate a vehicle with an ‘alcohol concentration in the person’s blood or breath’ of .10 or more, as measured from samples taken within two hours after the person attempted to operate the vehicle is sufficient to result in a conviction. This is the per se violation most states are enacting. Simply put, it is against the law to drive with more than .10 alcohol in your blood, even though you could convince a jury you were driving safely.” 54 J.K.B.A. at 164.
Affirmed. | [
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Opinion by
Holt, C.:
The judge refused to dissolve the temporary restraining order. In this we believe he erred. From the admissions made by plaintiff on the trial, and the evidence introduced, it appears to be well established that the raised platforms or advances to plaintiff’s barn were obstructions to a free and safe passage along the sidewalk. The plaintiff himself, in giving his evidence, says:'
“In getting up to the inclines, you step to the top of the curb, and then one step to the top of the incline;” and “there was danger of one stumbling and falling if he did not keep his eyes open.”
The business interest of an individual ought not to be set above that of the public. The sidewalk was for the comfort and convenience of the public generally, not alone for the benefit of plaintiff. From the testimony it is shown that the inclines might have been built within plaintiff’s barn, perhaps at some additional expense, and when completed might not have been as convenient for plaintiff’s use as they would have been if allowed to remain, yet they would have furnished a reasonably safe means of ingress into and egress from his barn. After the notice had been served he had ample time to prepare for such change. The city, in accordance with its ordinances, had notified plaintiff that he must tear up and rebuild the sidewalk in front of his property, more than three months before it commenced to remove it. It was a much longer time than the ordinance required, and it was not only the right of the city under the ordinance to rebuild, but it was its duty to see to it that a sidewalk pronounced unsafe should be replaced by a safe one.
Ordinarily, where municipal officers or boards are authorized by law to exercise their discretion and judgment in establishing or repairing streets and sidewalks, the courts, in the absence of fraud, will not interfere with their action, while they continue within the scope of the powers conferred upon them by law. In this case it appears that ample authority was given the committee by the ordinances of the city, and that it had good reasons for pronouncing the old sidewalk unsafe and ordering a new one built. Under the evidence introduced the court should not have interfered with the city in removing the sidewalk. (High on Injunctions, 1270.)
It is not an argument worthy of consideration that because the inclines had been there for a long time, for that reason they should be allowed to remain. But the plaintiff says that there could have been no harm done to the public under the order of the court; that plaintiff only asked that they be retained until the city had its material upon the ground ready to build the new walk before it removed the old one. We think there is not much force in this objection. The city has the right to build its own sidewalks in its own way, after it has given the lot-owner ample opportunity to put in the sidewalk abutting upon his property. If he fails to avail himself of the privilege extended to him by the city, by putting in sidewalks in his own way within the time provided by the ordinance, then he cannot be heard to complain if the city puts down the sidewalk in front of his property in a reason able time. For the reasons given herein, we recommend that the order of the district judge refusing to dissolve the temporary restraining order be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Pawnee county, by N. E. Weaver and D. S. Bill, partners as Weaver & Bill, against George A. Eddy, Nelson Adams, William A. Brigham, and John T. Moore. Afterward the case was removed to Harvey county, where it was tried before the court, without a jury. The court made special findings of fact and a conclusion of law, and upon such findings and conclusion rendered judgment in favor of the plaintiffs and against Eddy and Adams for $714.87, and costs. Eddy, Adams, and Brigham, as plaintiffs in error, have brought the case to this court, making Weaver & Bill defendants in error.
The first point made by the plaintiffs in error is, that the findings of fact are not sustained or authorized by the evidence. This seems to be true with respect to some of the findings; but the defendants in error claim that the case as brought to this court does not purport to contain all the evidence introduced on the trial below, and therefore that it cannot be known whether the findings of fact are sustained by sufficient evidence, or not. It is true that the case proper does not purport to contain all the evidence, but the judge of the court below, at the time of settling and signing the case, certified that the case “contains all the testimony offered or received on the trial.” This brings us to the question whether the trial court, when settling a case for the supreme court, can properly insert in a certificate thereto, other facts and statements than those already inserted in the case, and such facts and statements as are not necessary, for the purpose of merely showing that the case has been properly settled. We can answer readily that such a thing could not be done in the absence and without the knowledge and consent of the parties not making the case. In the case of Bartlett v. Feeney, 11 Kas. 594, 602, it was held that, under the circumstances of that case, the statement of a fact which was not inserted in the case-made, nor entered in the proceedings of the court, but which was merely certified to by the judge at the time of settling and signing the case, would not be considered by the supreme court. In the case of Brown v. Johnson, 14 Kas. 377, it was held that “the signature of a judge to a case-made, or a bill of exceptions, imports the truthfulness of the preceding statements in such case or bill, nothing more; and we must look to those statements to see whether all the testimony is preserved or not.” And in the nature of things, this must as a rule be so. Where a case, when it is served upon the adverse party, does not purport to contain all the evidence, he has no further interest in the matter than to know that what the case does contain is correct. Usually in such cases, it is a matter of entire indifference to him as to how much or how little of the evidence is contained in the case; and if what is contained in the case is correct, he has no need to suggest any amendments to the case with regard to the evidence, although the case may not contain one-half, or indeed any of the evidence. Usually, when a party making a case for the supreme court desires that it shall.be shown that the case contains all the evidence, the case itself as served upon the adverse party should contain a statement to that effect, so as to give the adverse party an opportunity to suggest amendments, if he thinks the statement untrue, either by striking out the statement or by inserting such other evidence as he may believe has been omitted; and thereby make the case speak the truth. It is the case itself, and not the certificate of the iudge, which should show whether all the evidence in-educed ou the trial js contained in the case or not. All that the judge in settling a case for the supreme court can properly do in the absence of the parties, and all that he need to do in any case, is to examine both the case as it has been made and served, and the amendments thereto as suggested by the adverse party, and then to allow all of each so far as the same are correct, and so far as the amendments have relation to the case as made and served; and also to correct any erroneous statements made in either the case or the amendments, so that the case when settled shall speak the truth. And when the case is thus settled, all that the judge need further to do is to indicate the same in some manner upon the case, and sign his name thereto; generally, however, it would be better for the judge to make a formal showing of the settlement of the case, as by a formal, certificate of the same, giving the date of the hearing and of the settlement, the names of the parties appearing, a statement as to whether those of the parties not appearing had sufficient notice of the time and place of the settlement; and the judge might also indorse upon the case an order for the clerk to properly attest the same with his signature and the seal of the court. Nothing else is necessary to be done. But suppose that both parties are present, and the court does in fact insert either in the case itself or in his certificate thereto, new propositions not necessary, merely to make the case, as it was originally made and served, or the amendments thereto as originally suggested, speak the truth: then are the parties bound by such new propositions so inserted ? This probably depends upon the further question whether the case is settled prior or subsequently to the time fixed for making and serving the case, and for the suggestion of amendments. If settled before that time the new propositions might very properly be inserted, but if afterward, then they could not properly be inserted, for to insert them at that time would be equivalent to making a new case for the supreme court, after the time for making the same had elapsed, which cannot be done. (Ætna Life Ins. Co. v. Koons, 26 Kas. 215; Dodd v. Abram, 27 id. 69.) This case was settled long after the time had elapsed for making and serving the case and for suggesting amendments; hence the statement contained in the certificate of the judge, that the case “contains all the testimony offered and received,” is improper.
As this case comes to this court, we think we must decide the same upon the theory that it is not sufficiently shown that all the evidence has been brought to this court, and therefore upon'the theory that the findings of fact as made by the trial court are absolutely correct, although some of them seem from the evidence brought to this court not to be sustained by sufficient evidence. We would say, however, that we think this works no injustice, for we think that not only the findings, but also the evidence, will sustain the judgment that was actually rendered by the court below.
The material facts of the case seem to be substantially as follows: In two suits before a justice of the peace of Pawnee county, Weaver & Bill, as plaintiffs, obtained attachments which were levied upon the property of William H. Mitchell, who was the defendant in these two suits. Weaver & Bill were non-residents of the county, and gave no security for costs, but it is not claimed in this court that this renders the attachments void. Afterward, Mitchell, Jerry Toles, George A. Eddy, T. H. Edwards, and Nelson Adams, for the purpose of procuring the possession of the attached property, gave to the constable, L. P. Elliott, a forthcoming bond; but the property was never delivered to them nor to anyone else under the bond, but was retained by the constable; hence the bond was void for want of consideration. (Eddy v. Moore, 23 Kas. 113.) At the same time Eddy and Adams held judgments against Mitchell, and they procured executions to be issued upon these judgments, and to be levied upon the same property by the same constable; and the property was afterward sold by the constable under these executions to several hundred different persons, in small lots, for the aggregate sum of $1,050; and the proceeds of the sale, after paying costs, were paid to Eddy and Adams, and none of the proceeds were paid to Weaver <fe Bill. Afterward, Weaver & Bill procured judgments in their suits, and also procured orders to be made by the court that the attached property be sold to satisfy their judgments, but as the property had already been sold to satisfy the executions of Eddy aud Adams, the property could not again be sold.
The question now arises, are Eddy and Adams liable to Weaver & Bill for the proceeds of the sale of the said property, up to the amount of Weaver & Bill’s judgments, to wit, $521.68 ? We think this question must be answered in the affirmative. Eddy and Adams, with a full knowledge of all the facts, caused their executions to be levied uPon the property, the property to be sold under the executions, and scattered among hundreds of people, and the proceeds of the sale to be paid to themselves. It is true they believed at the time that the attachments were void, and that Weaver & Bill had no lien upon the property, but in this they were mistaken, and the mistake was one of law, and not one of fact, and it cannot excuse them. They had a full and complete knowledge of all the facts, and ought to have known that Weaver & Bill had a prior lien upon the. property, and that if they interfered with such lien, or impaired its efficacy in any respect, they did so at their peril. They claim, however, that by the suit of John A. Moore against Eddy, Adams, and others, upon the forthcoming bond, (reported in 23 Kas. 113,) the matter of this suit has become res adjudicata, and that by such suit Weaver & Bill are estopped from claiming anything in this suit. It is impossible to see why this should be so. That suit was prosecuted upon the bond, and nothing else. It was an action against the obligors of the bond for a breach thereof, and nothing else; and the parties in that suit, as well as the issues, were different from the parties and issues in this suit, and that suit can have nothing to do with this. It is also claimed as a defense, that the present action is barred by the statute of limitations, (Civil Code, § 18, subdiv. 3,) which provides that “ an action for taking, detaining, or injuring personal property” shall be brought within two years, and not afterward. This is no such action, and this action is not barred by said statute, or by any other statute of limitations. The only statute of limitations that could operate in cases of this kind would be subdivision 2 of §18 of the civil code; but that statute has not so operated as to bar this action.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was begun in the court below by R. S. Andrews, on September 13, 1878. This is the fourth time this case has been in this court. (Railroad Co. v. Andrews, 26 Kas. 702; 30 id. 590; 34 id. 564.) It was last tried in September, 1886, before W. D.W., judge pro tem., and a jury, and the verdict and judgment were for the plaintiffs, for $3,765.98. Plaintiff in error, defendant beloAV, now seeks a reversal of that judgment. For a statement of facts, see Railroad v. Andrews, 26 Kas. 702, and Railroad v. Andrews, 30 id. 590. The plaintiff in error makes quite a number of assignments of error, a part only of which we shall consider in the examination of this case. It contends that the allegation in plaintiffs’ petition of the appointment of plaintiffs as administrators of the estate of R. S. Andrews, deceased, is not sufficiently explicit. The allegation is as follows:
“First: That said R. S. Andrews died, in Atchison county, Kansas, upon March 9, 1883; and thereafter, and upon March 13, 1883, said L. A. Andrews and B. F. Hudson were, by the probate court of Atchison county, Kansas, being duly and legally authorized thereto, duly and legally appointed administrators of the estate of said R. S. AndreAvs, deceased, and letters of administration duly and legally issued to them as such out of and by said court, and that they thereupon duly and legally qualified as such administrators, and have ever since been and now are the duly and legally authorized, appointed, qualified, and acting administrators of the estate of R. S. Andrews, deceased.”
This is sufficient. It is a brief and direct statement of the facts, in ordinary and concise language.
Another error complained of is, that Avitnesses were allowed to testify as experts to the value of the lots abutting upon the alley immediately after the railroad track was laid down through it. They had been asked simply whether they kneAv the market value of the lots in question on or about August 1, 1877. It appears that the track was laid down in a very short time — in a feAv hours — about August 1, 1877. We believe from their answers that they had knowledge of the market values of the lots in question on or about August 1, 1877, and that they were sufficiently qualified to answer in regard to their value, both before the laying doAvn of the track, as well as immediately afterward. The time of the laying down of the track was so brief, and the question asked, limiting it to “on or about,” is broad enough in our opinion to permit the testimony to be introduced.
Another objection urged is, in allowing A. J. North to give his opinion of the value of said property. He was asked whether he knew the market value of the lots in question, and he replied that he did not know the real value; but after some hesitation, upon further examination he said that he had an opinion of their market value. It further appears in the testimony that he had been dealing in land in Atchison since 1870, and had bought land in the part of the city where the lots are situated, although not in the same block. The testimony of North was not as specific and definite as might have been desired, so far as his qualifications are concerned, yet we think that it was competent.
The plaintiff in error still further complains that it was not allowed to introduce in evidence, by the witness L. C. Challiss, the admissions or statements made by R. S. Andrews in his lifetime as to the value of the lots. The witness was asked whether he had a conversation in regard to this property in the lifetime o#Mr. Andrews, and he answered in the affirmative. He was not able to definitely fix the time, but said he guessed it was before 1880. On objection made by plaintiff he was not allowed to testify. The attorney for the defendant then offered to prove by the witness the market value of the property as placed on it by R. S. Andrews in his lifetime, about the time of the construction of the brick building and shortly previous to the laying down of the track in the alley. To this offer the plaintiff objected, and the objection was sustained. The witness also testified in regard to a conversation had shortly after returning from New York in 1878.' There is no admission of the value of the lots in question at or near August 1, 1877. In fact, the admission of the value of the lots was either a long time before or a long time after that date. The offer to prove that the statement was made before the filing of this petition and about the time -that the brick house was built, was very indefinite, as the brick house was built before the track was laid; how long, does not appear in the evidence; and the petition was not filed until 1878. While ordinarily all the admissions of the party ought to be introduced in evidence, and while it might not have been error to have admitted the testimony of Challiss in this case, it further appears in evidence that the market value of lots and real property in the city of Atchison was fluctuating, and to have ascertained the values at the various times named would not have been a definite basis from which to establish the value of the same August 1, 1877. If the market value of the land had been nearly the same all these years, then the testimony sought to be introduced would have been more in point. But under the other testimony introduced, showing the changing values of property in the city, it seems to us that this rejection of the testimony offered is not material error.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by C. W. Ament on May 5,1885, before a justice of the peace of Shawnee county, against E. J. Cady, to recover the possession of a certain roan mare, about six years old. Judgment was rendered in the justice’s court in favor of the plaintiff, and the defendant appealed to the district court, where the case was tried before the court without a jury, and judgment rendered in favor of the defendant and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review.
The facts of the case, briefly stated, are substantially as follows: The mare in controversy belonged originally to David Brizendine, who, on March 26,1885, mortgaged her to C. W. Ament, the plaintiff, to secure a debt of $100, due in thirty days; and the mare was to remain in the possession of Brizendine until default. On the next day Brizendine mortgaged the same mare to Mrs. N. J. Rankin, who, through her agent, had full knowledge of the first mortgage, to secure a debt to her; and this second mortgage was deposited in the office of the register of deeds on the same day. Also, on the same day, a judgment was rendered in favor of Mrs. Elizabeth Greer, against Brizendine, for $110.75, and $9.45 costs. On April 14, 1885, Ament’s mortgage was deposited in the office of the register of deeds. On April 16, 1885, an execution was issued on Mrs. Greer’s judgment, and on the same day it was levied on the mare in controversy by E. J. Cady, as constable, and the mare was taken into his custody. On April 25,1885, Ament’s mortgage became due, and default was made in the payment thereof. On May 1,1885, Mrs. Rankin commenced an action of replevin in the superior court of Shawnee county, against Cady, for the recovery of the mare; and on May 5, 1885, Cady gave a redelivery bond, and retained the possession of the mare. Afterward, but on the same day, Ament demanded the mare from Cady, claiming her under his chattel mortgage, but Cady refused to surrender her to Ament; and afterward, but on the same day, Ament commenced this action of replevin against Cady to recover the mare, and by this means obtained the possession of her. No part of the mortgage debt due from Brizendine to Ament had yet been paid. On May 12,1885, judgment was rendered in the justice’s court in favor of Ament; and on May 18,1885, Cady appealed to the district court; and on March 15, 1886, judgment was rendered in that court in favor of Cady, and against Ament, for the return of the mare, or for her value, $100, and costs of suit; and Ament, as plaintiff in error, brings the case to this court for review.
We know of no good reason why the plaintiff, Ament; should not recover in this action. It is true that Cady, the constable, had the right to levy upon the mare at the time when he did so levy, for at that time Brizendine had the rightful possession of the mare, and Ament’s mortgage was not yet due; but Cady could not obtain by his levy any higher right, title or interest in or to the mare than Brizendine had. Cady’s right was simply Brizendine’s right, and was subject to Ament’s right; and before Ament commenced this action Brizendine’s right, with respect to the possession of the mare and as against Ament, had wholly terminated, and Ament’s right had become absolute, except that Brizendine, or Cady, or Mrs. Greer, might at any time have paid Brizendine’s debt to Ament, and thereby have extinguished Ament’s right to the property, and have revived the right of Brizendine, or of those claiming under him, thereto. Also, Brizendine and those holding under him had the right, without paying the debt to Ament, to compel him to sell the mare. Until such payment should be made, however, Ament’s right to the possession of the mare would be paramount to the right of any of the other persons named; and such debt was not in fact paid when this action was commenced. During the trial of this case there was some evidence introduced over the objections of the plaintiff, tending to prove that the aforesaid debt had been paid after the commencement of this action. This evidence, however, was outside of the issues in the case, and therefore not properly received. If it was really believed by the defendant that such debt had in fact been paid, he should have filed a pleading setting up such payment, and thereby have tendered an issue with respect thereto, and if the defendant had then proved such payment the plaintiff should have recovered only his costs in the action; but it is unnecessary to comment further with respect to this matter.
It is also true that prior to the commencement of this action Mrs. Rankin had replevied the mare in controversy, and that Cady held the mare under a redelivery bond, as well as under the execution issued on Mrs. Greer’s judgment; but that cannot affect this case in the least, for Mrs. Rankin’s right to the possession of the mare was also inferior and subordinate to Ament’s right of possession. The fact that the mare was in litigation in an action in which Ament was not a party, and had no interest, cannot affect Ament’s right to the property. It certainly cannot make the slightest difference to Ament whether Mrs. Rankin or Cady shall recover in Mrs. Rankin’s action of replevin, for Ament’s claim is independent of and paramount to theirs.
It is unnecessary to discuss any of the other questions presented by counsel.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Green, J.:
Jeremiah Stegman was charged with driving under the influence (DUI) of alcohol. Stegman moved to suppress the blood test results, arguing that the medical assistant who withdrew the blood was not qualified to do so. The trial court determined that, as a matter of law, the medical assistant was not qualified to withdraw blood under the relevant statute. On appeal, the State contends that the trial court improperly suppressed the blood test results. We disagree. Accordingly, we affirm.
On December 16, 2006, Stegman was arrested in Lincoln County, Kansas, for driving under the influence (DUI) of alcohol. After being provided the oral and written warnings under the Kansas Implied Consent Law, see K.S.A. 2006 Supp. 8-1001(f), Stegman agreed to submit to a blood test. Merilynn McBride, a “medical assistant,” withdrew blood from Stegman using a kit furnished by the Kansas Bureau of Investigation (KBI). After she was done, McBride gave the sample to Trooper Ryan Wolting of the Kansas Highway Patrol, and he sent the sample to the KBI laboratory for testing. The results of the test showed that the alcohol concentration in Stegmaris blood was over the legal limit.
Later, Stegman moved to suppress the test results, arguing that McBride was not qualified under K.S.A. 2006 Supp. 8-1001(c) to withdraw his blood. That statute states:
“If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, or a phlebotomist.” K.S.A. 2006 Supp. 8-1001(c).
The State countered Stegmaris motion by arguing that McBride was qualified to withdraw blood under K.S.A. 2006 Supp. 8-1001(c)(3) because a medical assistant is similar to the professions listed in that subsection of the statute.
Instead of conducting an evidentiary hearing, the parties stipulated to numerous facts and submitted the matter to the trial court for a decision. The stipulated facts are as follows:
“1. On December 16, 2006, Jeremiah Stegman was arrested in Lincoln County, Kansas, for driving under the influence of alcohol.
“2. After Stegman was arrested for driving under the influence he was transported to the Lincoln County jail for processing under the Kansas Implied Consent Law.
“3. Stegman, after being provided his oral and written warnings pursuant to the Kansas Implied Consent Law, agreed to submit to a blood test as requested by the officer.
“4. Merilynn McBride responded to the Lincoln County jail after being called by Trooper Wolting, the arresting officer.
“5. Ms. McBride’s actual title with the hospital is that of a ‘medical assistant’ and this is also the title that she gives as her employment status with the hospital.
“6. Ms. McBride graduated from Brown Mackie College with what she describes as a ‘medical assistant’ degree and certificate.
“7. Ms. McBride, per her own admission and description, is not a medical technician, an emergency medical technician, nor a phlebotomist, but instead, ás she describes in her own words as a ‘medical assistant’.
“8. Ms. McBride drew a sample of Mr. Stegman’s blood with the KBI kit provided to her and gave the sample of blood to Trooper Wolting pursuant to the Kansas Implied Consent Law.
“9. The sole issue for the Court to determine in this case is whether or not Ms. McBride [is] qualified to draw blood under K.S.A. 8-1001(c).”
Later, the trial court granted Stegman’s motion to suppress. In its findings of fact, the trial court stated: “Merilynn McBride has many years of experience working at the Lincoln County Hospital and has drawn many blood samples throughout the years. McBride is experienced at and an expert at drawing blood.” Despite making this finding (which was not one of the facts stipulated to by the parties), the trial court granted Stegman’s motion to suppress, finding that the list of people who may withdraw blood under K.S.A. 2006 Supp. 8-1001(c)(3) did not include medical assistants. Therefore, the trial court concluded that, as a matter of law, McBride was not qualified to withdraw blood under the statute. Specifically, in reaching this conclusion, the trial court stated:
“7. Stegman contends that a medical assistant does not satisfy the above requirements. The State urges this court to adopt a definition of phlebotomist as ‘one who is experienced and [an] expert at drawing blood’.
“8. No evidence was presented that McBride is a certified medical technician. No evidence was presented that McBride is a certified phlebotomist. Facts were presented that McBride has much experience in the field of drawing blood.
“9. K.S.A. 8-1001(c) clearly defines those individuals qualified to draw blood for DUI testing purposes. McBride is a medical assistant with years of experience in drawing blood. McBride’s experience, however, does not qualify her as a statutorily defined qualified medical technician or phlebotomist.”
DID THE TRIAL COURT ERR WHEN IT SUPPRESSED THE RESULTS OF STEGMAN’S BLOOD ALCOHOL TEST AFTER IT CONCLUDED THAT THE PERSON WHO WITHDREW STEGMAN’S BLOOD WAS NOT QUALIFIED TO DO SO UNDER K.S.A. 2006 Supp. 8-1001(c)?
The parties submitted stipulated facts to the trial court. Generally, such stipulations bind the parties as judicial admissions. Moreover, a reviewing court is generally bound by stipulations of facts. “When parties submit stipulated facts to a tribunal and the tribunal does not allow the parties to withdraw the stipulations, the parties are subject to those stipulations, and a trial court or appellate court must render judgment based on those stipulated facts.” Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, Syl. ¶ 1, 202 P.3d 7 (2009).
In its brief, the State argues the trial court erred when it held that McBride, a “medical assistant,” was not qualified to withdraw blood under K.S.A. 2006 Supp. 8-1001(c)(3). The State contends that the trial court incorrectly interpreted the statute by narrowly construing it and determining that medical assistants were not included in the list of medical professions authorized to withdraw blood. The State believes that a medical assistant is substantially similar to the professions listed in K.S.A. 2006 Supp. 8-1001(c)(3), and therefore, qualified to withdraw blood for purposes of testing its alcohol content.
As mentioned earlier, K.S.A. 2006 Supp. 8-1001(c) states in part:
“If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by . . . (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, or a phlebotomist.”
While this case was pending on appeal, the legislature amended K.S.A. 8-1001(c) (and added another subsection to the statute) during the 2008 session. See L. 2008, ch. 170 sec. 1. The pertinent part of that statute now reads:
“If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by . . . (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.” (Emphasis added.) K.S.A. 2008 Supp. 8-1001(c)(3) and (4).
In State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 904, 189 P.3d 1157 (2008), our Supreme Court stated that “[w]hen an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute.” This court has provided the parties an opportunity to submit supplemental briefs on the applicability of K.S.A. 2008 Supp. 8-1001(c) to this case. Therefore, this court will determine whether the statute retroactively applies to this case.
Normally, when a statute is amended, the change is applied prospectively. Nevertheless, if the amendment is procedural or remedial in nature and does not prejudice the substantive rights of the parties, then die amended statute is to be applied retroactively to cases pending on appeal. Tonge v. Werholtz, 279 Kan. 481, 486, 109 P.3d 1140 (2005). As related to criminal law and procedure, substantive laws define criminal acts and prescribe punishments. Procedural laws provide or regulate the steps by which a defendant is tried and punished. Werholtz, 279 Kan. at 487.
The 2008 amendment to K.S.A. 8-1001(c) neither changed the definition of a criminal act nor prescribed a new punishment. Furthermore, K.S.A. 8-1001 et seq. is a remedial law. K.S.A. 2008 Supp. 8-1001(v); Ashley v. Kansas Dept. of Revenue, 38 Kan. App. 2d 421, 428, 166 P.3d 1060 (2007). The 2008 amendment does not prejudice Stegmaris substantive rights; it simply “clarifies” who can withdraw blood for purposes of testing its alcohol concentration. Therefore, the 2008 amendment retroactively applies to this case.
In order to determine whether the trial court was right when it suppressed the results of Stegmaris blood alcohol test, this court must consider two questions. First, what medical professions— besides those specifically listed in the statute—are authorized to withdraw blood under K.S.A. 2008 Supp. 8-1001(c)(3) and (4)? This is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The answer to this question shapes the analysis of the second question: Does McBride’s education and experience, as shown in facts stipulated to by the parties, qualify her to withdraw blood under K.S.A. 2008 Supp. 8-1001(c)(3) and (4)? Because this appeal asks us to construe a statutory scheme based on stipulated facts, our standard of review is de novo. See Double M Constr., 288 Kan. at 271. (“The standard of appellate review is de novo for cases decided by the district court based upon documents and stipulated facts.”).
Recently, our Supreme Court stated:
“When [an appellate court is] called upon to interpret a statute, [it must] first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, [the appellate court does] not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. [The appellate court] need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that [the appellate court] move[s] to the next analytical step, applying canons of construction or relying on legislative histoiy construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007).
Again, K.S.A. 2008 Supp. 8-1001(c) states in part:
“If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by . . . (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.”
In addition to qualified medical technicians and phlebotomists, K.S.A. 2008 Supp. 8-1001(c)(1) and (2) also authorizes medical doctors, physician’s assistants, people acting under the direction of medical doctors and physician’s assistants, registered nurses, and licensed practical nurses to withdraw blood for purposes of testing its alcohol concentration. The list of people authorized to withdraw blood under K.S.A. 2008 Supp. 8-1001(c) indicates that the legislature wanted to ensure that blood withdraws would be performed in such a way as to protect the health of the individual whose blood was being withdrawn, “to guard against infection and pain, and to assure the accuracy of the test.” State v. Winquist, 247 N.W.2d 256, 258-59 (Iowa 1976) (interpreting an Iowa statute similar to K.S.A. 2008 Supp. 8-1001[c]); K.S.A. 2008 Supp. 8-1001(v) (“This act is remedial law and shall be liberally construed to promote public health, safety and welfare.”).
The term “qualified medical technician” in K.S.A. 2008 Supp. 8-1001(c)(3) is not defined by statute. Nevertheless, the legislature, by using the phrase “including, but not limited to,” intended for emergency medical technician-intermediates, mobile intensive care technicians, and other similarly trained medical professionals to be considered qualified medical technicians. Additionally, the legislature, by removing the term “phlebotomist” from subsection (c)(3) and placing it in its own subsection, arguably narrowed the definition of “qualified medical technician.” Compare K.S.A. 2007 Supp. 8-1001(c) with K.S.A. 2008 Supp. 8-1001(c).
An “ ‘[e]mergency medical technician-intermediate’ ” is defined as “a person who holds an emergency medical technician intermediate certificate issued pursuant to [K.S.A. 65-6101 et seq.].” K.S.A. 2008 Supp. 65-6112(i). A “ ‘[m]obile intensive care technician’ ” is defined as “a person who holds a mobile intensive care technician certificate issued pursuant to [K.S.A. 65-6101 et seq.].” K.S.A. 2008 Supp. 65-6112(o). Interestingly, those two terms, along with other medical professions, are included within the definition of “attendant” found in K.S.A. 2008 Supp. 65-6112(d). That statute defines “ ‘[attendant’ ” as “a first responder, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-defibrillator or a mobile intensive care technician . . . .” K.S.A. 2008 Supp. 65-6112(d).
All individuals wishing to become attendants must obtain certification under K.S.A. 65-6101 et seq. See K.S.A. 2008 Supp. 65-6112(d), (g), (h), (i), (j), and (o). K.S.A. 2008 Supp. 65-6111(8) and (9) authorize the Kansas Board of Emergency Medical Services (Board) to approve all training programs and examinations for the certification of attendants. Under this authorization, the Board has promulgated numerous regulations which set forth the curriculum and examinations that a person must complete and pass in order to be certified as an attendant. K.A.R. 109-8-1; K.A.R. 109-10-1 through K.A.R. 109-10-6. Furthermore, the Board’s regulations also set forth how one maintains his or her certification as an attendant. See K.A.R. 109-5-1 through K.A.R. 109-5-4.
Based on K.S.A. 2008 Supp. 8-1001(c)(3)’s reference to K.S.A. 2008 Supp. 65-6112, we conclude that, in the veiy least, the legislature intended for the term “qualified medical technician” to mean any person who is certified as an attendant under K.S.A. 65-6101 et seq. At the most, the term means any medical professional or individual — not specifically listed in K.S.A. 2008 Supp. 8-1001(c)—whose training is similar to that required for an attendant under K.S.A. 65-6101 et seq.
K.S.A. 2008 Supp. 8-1001(c)(3) also requires that the “qualified medical technician” withdrawing blood be authorized to do so under applicable “medical protocol.” K.S.A. 2008 Supp. 65-6112(n) defines medical protocol as
“written guidelines which authorize attendants to perform certain medical procedures prior to contacting a physician, or professional nurse authorized by a physician. These protocols shall be developed and approved by a county medical society or, if there is no county medical society, the medical staff of a hospital to which the ambulance service primarily transports patients.”
Therefore, even if a person is considered a “qualified medical technician” based on the earlier definition, applicable medical protocol must also authorize that individual to withdraw blood from a person suspected of DUI.
Moving on to the next subsection, K.S.A. 2008 Supp. 8-1001(c)(4) authorizes a “phlebotomist” to withdraw blood for purposes of testing a person’s blood alcohol concentration. The term “phlebotomist” is not defined in Kansas statutes or administrative regulations. Furthermore, neither Kansas statutes nor regulations provide any insight into how one becomes a phlebotomist. A “phlebotomist” is generally defined as “[o]ne trained and skilled in phlebotomy.” PDR Medical Dictionary 1481 (3d ed. 2006). “Phlebotomy” is defined as “[i]ncision into or needle puncture of a vein for the purpose of drawing blood.” PDR Medical Dictionary 1481 (3d ed. 2006); see also People v. Gregg, 171 Ill. App. 3d 1076, 1077, 526 N.E.2d 537 (1988) (“A phlebotomist is one who is trained to draw blood.”).
Though Kansas does not license or certify phlebotomists, there is no doubt that in this state, there are people who work in the medical field who have been given the title “phlebotomist” by their respective employers. See City of Salina v. Martin, 18 Kan. App. 2d 284, 849 P.2d 1010 (1993) (determining whether a phlebotomist working at a hospital in Salina was a “qualified medical technician” under the then applicable version of K.S.A. 8-1001[c][3]). The question then arises: Does an individual’s job title solely determine whether he or she is a phlebotomist under K.S.A. 2008 Supp. 8-1001(c)(4), or can a person with a different job title (i.e., “medical assistant”) be considered a “phlebotomist” if he or she has received training in withdrawing blood?
In Winquist, the Iowa Supreme Court had to address a similar question when it was asked to determine whether Weakley, the individual who withdrew Winquist’s blood for purposes of testing his blood alcohol concentration, should be considered a “medical technologist,” one of the three categories of people (physicians and registered nurses being the others) authorized to withdraw blood under Iowa’s implied consent law. Winquist argued that Weakley was not a medical technologist because he was not certified by the American Society of Clinical Pathologists nor did he possess the training which would allow him such certification. 247 N.W.2d at 258.
In rejecting this argument, the Iowa Supreme Court wrote:
“Unlike the situation of physicians and registered nurses, [Iowa law] does not provide for state licensing of medical technologists. Nor do statutory educational or training standards exist. The test to determine whether a person holding himself out as a medical technologist is a medical technologist within the meaning of [Iowa’s implied consent law] is whether a satisfactory showing can be made that he has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual’s health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards. [Citations omitted.] The concern is with the competence of the person withdrawing tire blood rather than with an occupational label he may have been awarded by a private association.” 247 N.W.2d at 259.
The same reasoning used by the Iowa Supreme Court to determine who can qualify as a “medical technologist” under Iowa’s implied consent law should also be applied to determining who can qualify as a “phlebotomist” under K.S.A. 2008 Supp. 8-1001(c)(4). If the person in question has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual’s health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards, then, for purposes of K.S.A. 2008 Supp. 8-1001(c)(4), that person is a phlebotomist regardless of whether he or she is called a “phlebotomist” by his or her employer.
As mentioned earlier, the parties in this case stipulated to numerous facts and submitted the case to the trial court for decision. “When a defendant challenges the admissibility of evidence by filing a motion to suppress prior to trial, the prosecution has the burden of proving that the evidence is admissible.” Martin, 18 Kan. App. 2d at 285. In regards to McBride’s education and training, the parties stipulated to the following:
“5. Ms. McBride’s actual title with the hospital is that of a ‘medical assistant’ and this is also the title that she gives as her employment status with the hospital.
“6. Ms. McBride graduated from Brown Maclde College with what she describes as a ‘medical assistant’ degree and certificate.
“7. Ms. McBride, per her own admission and description, is not a medical technician, an emergency medical technician, nor a phlebotomist, but instead, as she describes in her own words as a ‘medical assistant’.
“8. Ms. McBride drew a sample of Mr. Stegman’s blood with the KBI kit provided to her and gave the sample of blood to Trooper Wolfing pursuant to the Kansas Implied Consent Law.”
As stated earlier, when stipulations of facts are agreed to by the parties, a trial court or an appellate court must render a judgment based on those stipulated facts.
Now we turn our attention to the State’s argument in this case. The State asks this court to hold that McBride’s training as a medical assistant is comparable to the training that of a phlebotomist would undergo.
Nevertheless, the stipulations of facts are devoid of any description of McBride’s training as a medical assistant. Moreover, there is no stipulation that sets out McBride’s skill or experience in the withdrawal of blood from an individual. Indeed, the stipulations of facts expressly state that McBride is not a phlebotomist. The State, however, seeks to be excused from the binding effect of the stipulations of facts. This court cannot endorse such an approach.
When all is considered, the stipulations of facts are simply insufficient to show that McBride was qualified under K.S.A. 2008 Supp. 8-1001(c)(3) or (4) to withdraw Stegman’s blood. There is nothing in the. stipulated facts that describes the type of training McBride received from Brown Mackie College and whether it is comparable to the training required for attendants under K.S.A. 65-6101 et seq. Nor is there anything in tire stipulated facts to indicate that applicable medical protocol authorized McBride to perform the blood withdrawal. Therefore, the stipulated facts do not support a finding that McBride is qualified to withdraw blood under K.S.A. 2008 Supp. 8-1001(c)(3). Similarly, there is nothing in the stipulated facts to show that McBride has received any training in the withdrawal of blood. Therefore, the stipulated facts also do not support a finding that McBride is a phlebotomist under K.S.A. 2008 Supp. 8-1001(c)(4).
Briefly, we note that the trial court made factual findings which were not included in the facts stipulated to by the parties. Specifically, the trial court found: “Merilynn McBride has many years of experience working at the Lincoln County Hospital and has drawn many blood samples throughout the years. McBride is experienced at and an expert at drawing blood.” Additionally, the court found that “McBride is a medical assistant with years of experience in drawing blood.” If these facts would have been stipulated to by the parties, our determination may have been different. It, however, seems that the trial court made these factual findings after it took judicial notice of McBride’s experience. A trial court simply cannot do this. See K.S.A. 60-409; State v. Maxwell, No. 93,791, unpublished opinion filed March 10, 2006 (rejecting the notion that a trial court can take judicial notice of a lab technician’s qualifications for purposes of finding that he was qualified to withdraw blood under then applicable K.S.A. 8-1001[c]). Based on the stipulated facts, the State failed to carry its burden of proof to show that McBride was qualified to withdraw blood under K.S.A. 2008 Supp. 8-1001(c)(3) and (4). As a result, the State’s argument fails.
Affirmed. | [
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Opinion by
Simpson, C.:
The assignment of error to which most of the brief of the plaintiff in error is devoted, is, that there is not sufficient evidence to sustain the verdict of the jury. The facts as proven at the trial are as follows: The defendants in error were in the real-estate business at Emporia. The plaintiff in error was a resident of Chase county, and possessed a farm which he desired to sell. In December, 1884, he placed it in the hands of the defendants in error for sale, at $10,500, and was to pay three per cent, commission in the event they sold it for him. They advertised it in a newspaper, called the attention of the purchaser, Morris, to it, offered to take him to see the premises, directed him to the house of the plaintiff in error, and gave him a copy of the paper containing a description of it. The plaintiff in error sold the farm to Morris for the sum of $9,500, and included in the sale some corn, plows, and feed. The disputed question of fact on the trial, and around -which clustered all the contention, was, whether Ratts limited the time within which the sale was to be made to the first day of March, 1885; and there was also a dispute as to the commission which was to be paid, the plaintiff in error contending that he was to receive the sum of $10,500, exclusive of all commission. The evidence was confined to the parties, on these questions, and the jury very properly, (as it seems to us iu view of all the facts,) decided that the statements by the defendants in error gave the true history of the transaction, and returned a verdict in their favor. That verdict is sufficiently supported by the evidence. The defendants in error furnished a purchaser, and sent him to view the land. This resulted in a sale, and is sufficient to entitle them to a commission.
As to the other assignment of error, with reference to the tenth instruction, it may be remarked that the verdict of the jury, sustained by sufficient evidence as we have seen, necessarily determines that there was not a limit of time within which the sale was to be made, as is claimed by the plaintiff in error; and this being so, this case does not come within the rule as laid down by Fultz v. Wimer, 34 Kas. 576. In the Eultz case there was a written contract authorizing a sale to be made within two months from the 18th of June, and further providing that if the owner or others should make a sale within that time a commission should be paid the real-estate agent. Within that time Eultz took a purchaser to see the land, and made a contract of sale with him satisfactory to the owner. The sale was negotiated within the time, .and the agent applied for and received an extension of ten days, within which to complete it; then a further extension was asked for, and refused. An agent of the purchaser and the owner made a subsequent contract of sale, and Eultz sued for his commission. This court decided that under the terms of the special contract he could not recover. This is not a parallel case. Here the jury found that there was no special contract as to the time within which the sale was to be made, and hence the rule in the Eultz case can have no application.
There is another very material difference in the circumstances of these cases. In the Fultz case the agent not only found the purchaser, but also made the contract, and was personally supervising the details of the purchase. All the owner was doing was to acquiesce in the acts of the agent, and grant a reasonable extension of time for the completion of the contract. In this case the owner was conducting the details of the sale, and from the indefinite account of the time at which the sale was made, given both by the seller and the purchaser at the trial, it would seem as if the delay in closing the sale was caused by the negligence or fault of Eatts, who no doubt acted with the idea that if the sale was not consummated by the 1st day of March, the commission due the defendants in error would not have to be paid. Even in such a contract as that in Fultz v. Wimer, it is expressly declared by the court that where a purchaser is found within the time specified, but delay in closing the sale is caused by the negligence, fault, or fraud of the seller, the agent who finds the purchaser is entitled to the commission. Construing the tenth instruction with reference to the particular facts in the case, we see no error in giving it to the jury; nor do we discover any disagreement between the rule laid down in that instruction and the decision in the case of Fultz v. Wimer. They must both be read and construed in the light of the facts and attending circumstances of the cases in which they are used.
In this case we think the evidence warrants the inference that the delay by Eatts in closing the sale to Morris resulted from his belief that, by a postponement of its completion until after the 1st of March, he could escape the payment of a commission to his agents. Indeed, a fair construction of the testimony strongly leads to the belief that the sale had been completed, and part possession of the farm yielded to Morris at the time of Bucher’s visit there, on or about the 22d day of February. The verdict of the jury is clearly right, and the seventh and tenth instructions taken together, and considered with reference to the facts proven on the trial, are, to say the least, not misleading, or so prejudicial as to be erroneous.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Leben, J.:
After E.F. failed to meet the terms of his juvenile sentence, die district court granted adult probation rather than imposing the adult prison sentence in E.F.’s extended-jurisdiction juvenile proceeding. Because the State lacks the right to appeal an order granting probation in juvenile and adult criminal cases, the State has appealed on a question reserved that we can only review if it is a recurring matter of statewide importance. As our ruling has no effect on E.F., we must first determine whether die district court’s decision to consider alternative sentencing options rather than revoking E.F.’s juvenile sentence and imposing the adult prison sentence is an issue of statewide importance before we may then discuss and answer the State’s question reserved.
The State’s Question Reserved Is an Issue of Statewide Importance and Should Not Be Dismissed.
The State reserved its right to appeal the district court’s authority to grant a nonprison sanction after finding that E.F. had violated his extended-jurisdiction juvenile sentence. Although the propriety of the district court’s order is properly before us, our ruling doesn’t affect E.F. because the State has no right to appeal an order granting probation in juvenile and criminal cases. See K.S.A. 2008 Supp. 38-2381(a); K.S.A. 22-3602(b); State v. Ruff, 252 Kan. 625, Syl. ¶ 3, 847 P.2d 1258 (1993). We generally allow review on a question reserved to consider a matter of statewide importance that may recur so that the criminal law may be uniformly administered throughout the state, not merely to show that a specific decision by a district court was wrong. See State v. Hurla, 274 Kan. 725, 728, 56 P.3d 252 (2002). An appellate ruling on a question reserved has no effect on the juvenile offender or criminal defendant involved in the underlying case; the appellate court reviews the question only because an answer to it is needed to guide the handling of future cases. See Ruff, 252 Kan. at 630.
The proper interpretation of K.S.A. 2008 Supp. 38-2364 when the terms of a juvenile sentence have been violated is of statewide importance. The Kansas Supreme Court confirmed this when it granted a motion to publish our court’s opinion that addressed this issue in State v. J.H., 40 Kan. App. 2d 643, 646-67, 197 P.3d 467 (2007) (interpreting K.S.A. 38-16,126[b], since recodified at K.S.A. 2008 Supp. 38-2364). Motions to publish unpublished opinions are granted only when the opinion is of some importance, such as when it involves a legal issue of continuing interest. See Supreme Court Rule 7.04(b) (2008 Kan. Ct. R. Annot. 53). But does this issue continue to be of statewide importance since our court has already addressed it in J.H. ? If not, we should dismiss the appeal. See State v. Tremble, 279 Kan. 391, 394, 109 P.3d 1188 (2005).
Perhaps because our decision will have no effect on E.F., E.F.’s two-page appellate brief is more brief than helpful. Without any arguments or rationale, E.F. simply suggests that J.H. should be reconsidered in light of the Kansas Supreme Court’s decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), the requirement that placement at Labette Correctional Conservation Camp be considered in adult cases under K.S.A. 21-4603d(g), and the constitutional right of equal protection of the laws. The State did not respond to these rationales for reconsidering J.H.
We think it is a close call whether reconsideration of J.H. in light of these issues is a matter of statewide importance. Although the statutory interpretation found in J. H. and discussed later is straightforward and, in our view, not subject to serious debate, that statute has since been recodified as part of the overall revision of the juvenile-justice code. So there may be some value in a ruling that the analysis found in J.H. remains good law under the new code. In addition, In re L.M. was a significant case, and its impact on existing caselaw is a subject of some interest. We will therefore consider the State’s appeal.
When a District Court Finds that a Juvenile Has Violated the Conditions of the Juvenile Sentence, the Court Must Impose the Adult Sentence.
Extended-jurisdiction juvenile proceedings have been used since 1997 so that some juveniles who might otherwise have been waived up to adult court may remain within the juvenile sentencing system. As former Chief Justice McFarland explained last year, the basic outline of the system calls for an adult sentence that is imposed only if the juvenile fails to satisfactorily complete an initial juvenile sentence:
“In an extended jurisdiction juvenile prosecution, the court imposes both a juvenile and an adult sentence. The adult sentence is stayed as long as the juvenile complies with and completes the conditions of the juvenile sentence. If, however, the juvenile violates the conditions of the juvenile sentence, the juvenile sentence is revoked, the adult sentence is imposed, and the juvenile court transfers jurisdiction of the case to the adult court.” In re L.M., 286 Kan. at 485 (McFarland, C.J., dissenting).
Here, E.F. was prosecuted in an extended-jurisdiction juvenile proceeding, and he admitted to violating the conditions of his juvenile sentence. The district court also found that E.F. had violated it.
Proceedings under extended juvenile jurisdiction are all set out in K.S.A. 2008 Supp. 38-2364. Subsection (a) provides that the sentence in an extended-jurisdiction juvenile prosecution shall include both a juvenile sentence and an adult sentence, but the adult sentence “shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense.” Subsection (b) provides that once the district court finds that conditions of the juvenile sentence have been violated, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence,” and the extended juvenile jurisdiction is then terminated.
So it would seem that the district court’s obligation in E.F.’s case under K.S.A. 2008 Supp. 38-2364(b) was to “revoke the juvenile sentence and order the imposition of the adult sentence.” The State certainly argued to impose the adult prison sentence at the hearing. But E.F. said that he had applied for — and gained acceptance to — the Labette Correctional Conservation Camp. Although his juvenile sentence was intensively supervised probation, he asked the district court to send him to Labette as a condition of a new, adult probation. Though the district court noted “at least a significant issue as to whether or not I have the authority to put you in Labette,” the court granted the disposition E.F. requested.
The district court granted adult probation even though K.S.A. 2008 Supp. 38-2364(b) provides that when a court finds that a juvenile has violated the juvenile sentence, as E.F. did, the court “shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered.” Our court has already held that this language means what it says: when its terms are met, the statute “compel[s] incarceration” and leaves the district court no room to consider other alternatives. State v. J.H., 40 Kan. App. 2d at 646-47.
While E.F. suggests that we should reconsider J.H. in light of In re L.M., we see nothing in the court’s opinion in In re L.M. that would suggest any change from our court’s straightforward reading of K.S.A. 2008 Supp. 38-2364. The court in L.M. held that because the Kansas juvenile-justice system had become more akin to adult proceedings over the years, juveniles have a constitutional right to a jury trial. 286 Kan. 460, Syl. ¶ 2. But extended-jurisdiction juvenile proceedings have always been recognized as serious cases, and K.S.A. 2008 Supp. 38-2347(f)(4) already provided the right to a jury trial to juveniles in those proceedings. And that provision was in effect in 2007 when E.F. admitted he had committed aggravated assault and was sentenced. See L. 2006, ch. 169, secs. 47, 141 (adopting provision now codified as K.S.A. 2008 Supp. 38-2347 effective January 1, 2007). Thus, we do not see any reason to believe that In re L.M. would impact the proper reading of the statutory language of K.S.A. 2008 Supp. 38-2364.
Nor do constitutional rights to equal protection come into play here as E.F. also suggests. Age is not a suspect classification for equal-protection analysis, so all that’s required for a statutory distinction on the basis of a juvenile’s age is a rational basis. Christopher v. State, 36 Kan. App. 2d 697, Syl. ¶ 12, 143 P.3d 685 (2006). The State has established a system for juveniles in extended-jurisdiction proceedings under which the juvenile may gain the benefit of juvenile sentencing statutes rather than being waived to adult court. In return for that benefit, the juvenile must comply with the juvenile sentence or end up serving an adult sentence. The State certainly has a legitimate interest in juvenile offenders complying with their sentences, and the State may rationally first handle serious juvenile offenders within the juvenile system before then imposing an adult sentence. There is no equal-protection violation through the sentencing scheme at issue here.
E.F.’s last argument, based on K.S.A. 21-4603d(g), isn’t properly before us in this case because it couldn’t have benefitted E.F. Sometimes in an adult criminal case, the district court is required under K.S.A. 21-4603d(g) to consider a placement at the Labette Correctional Conservation Camp before sending the defendant to prison. But the sentencing journal entry for E.F. showed that he had a criminal-history score of “B,” and the provisions of K.S.A. 21-4603d(g) do not benefit a defendant with such a serious crim inal-history score. Although E.F.’s brief doesn’t really sketch out a full argument, we surmise that he is claiming that when the dual juvenile and adult sentences are adopted in an extended-jurisdiction juvenile proceeding, the district court must factor K.S.A. 21-4603d(g) into its consideration of the adult sentence. In opposition, one might argue that the initial juvenile sentence serves the equivalent purpose. But we conclude that we should not attempt to resolve this issue in this question-reserved appeal since the issue was never raised to the district court, has only been cursorily mentioned on appeal, and didn’t impact the offender involved in this case at all.
We conclude that J.H. properly interpreted the statutory language now found in K.S.A. 2008 Supp. 38-2364. When the district court finds that the offender has violated the conditions of the juvenile sentence, the court must impose the adult sentence.
We therefore sustain the State’s appeal on the question reserved. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the general statement in this case, the facts are as follows: William Dunden jr. was injured on Au gust 16, 1884, on a turn-table, located upon the grounds of the Fort Leavenworth military reservation, while playing with other children. From the injuries received he died the next day. At the time of his death he was eleven years and eight months old. Prior to his injuries, he was intelligent, healthy and promising. His father, William Hunden, lived at the time in Leavenworth city, and was not in the best of health. He was a poor man, not owning the house in which he lived. His occupation was that of an engineer of steam machinery, and he received as wages for his services from seven to eight hundred dollars a year. After the death óf his son, his family, other than himself, consisted of his wife and three children, the oldest being sixteen years of age, and the youngest a year old. The father, as administrator, brought this action against the Union Pacific Railway Company to recover damages for the death of his son. In the petition, it is alleged that the death occurred by reason of the negligence of the railway company in leaving the turn-table unlocked and unguarded. Judgment was rendered' against the railway company for three thousand dollars, and that company now seeks to have the judgment reversed.
It is claimed that the probate court of Leavenworth county had no jurisdiction to issue letters of administration to William Dunden, upon the ground that his son left no estate. The authority for granting letters of administration is found in §1, chapter 37, Compiled Laws of 1885, which reads:
“ That upon the decease of any inhabitant of this state, letters testamentary, or letters of administration, on his estate, shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death.”
The contention is, that there is no provision in the statute for administration, either in the case of a resident or a nonresident, unless there is an estate to be administered. ( Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kas. 420.) Whether the rule announced in the foregoing case applies to the issuance of letters of administration upon the decease of an inhabitant of this state, we need not now decide. Letters of administration may be granted upon the estate of a minor, as well as upon the estate of any other person. To the claim that William Dunden left no estate, the answer is, that the records of the probate court of Leavenworth county made a prima fade showing of jurisdiction to issue the letters of administration. On February 7, 1885, William Dunden made an affidavit before the probate judge that his son William Dunden jr. died, leaving, among other things, “ an estate of personal articles.” The letters of administration recite: “That William Dunden, late of the county of Leavenworth, an inhabitant of said county, died intestate, having at the time of his death property in this state, which may be lost, destroyed, or diminished in value, if speedy care be not taken of the same.” The administrator gave bond, with two sufficient sureties, in the sum of two hundred dollars, as prescribed by the statute. The administrator also made an affidavit before the probate judge—
“That he would make a true and perfect inventory of and faithfully administer all the estate of the said deceased, and pay the debts as far as the assets would extend, and account for all assets which should come to his possession or knowledge.”
The records of the probate court were read to the jury. The only evidence offered to contradict or rebut the prima fade case-made was in the cross-examination of the father of the deceased, who testified, among other things, that his son at the time of his death had “nothing, other than some little change; that what he had in the way of personal effects and clothing he had provided him with; that he had worked at one time for a canning factory, and earned a little money; that he did not know how much of this he had, as that was a matter between the boy and his mother; that when he earned money he gave it to his mother; that while working for the canning factory he received twenty-five cents a day.” Admitting that the evidence of the father was contradictory to J and conflicting with the findings and records of projjate court} yet it was not conclusive. The personal representative, in cases like this, brings the action, not for himself nor in the right of the estate, but as trustee for the distributees — the next of kin. The jury had the right to pass upon the facts in issue, and as was said in Wheeler, Adm’r, v. St. J. & W. Rld. Co., 31 Kas. 640, “ We cannot say from the facts as found by the jury that the letters of administration issued to the plaintiff in error ought to be revoked.”
It is next claimed that the trial court erred in instructing the jury that if they found for the plaintiff they could use their common knowledge in assessing his damages, without evidence as to the amount thereof. The language of the instruction may perhaps be criticised, but the instruction, as aPphed to this case, was neither erroneous nor misleading. In such a case as this the jury may estimate the pecuniary damages from the facts proved, in connection with their own common knowledge and experience in relation to matters of common observation. It is not absolutely necessary that any witness should have expressed an opinion of the amount of the pecuniary loss. Damages are to be assessed by the jury with reference to the pecuniary injury sustained by the next of kin in consequence of such death. This is not only the actual present loss which the death produces, and which could be proved, but also prospective losses. How this pecuniary damage is to be measured, or what shall be the amount, must be left largely to the discretion of the jury. The coui’t undoubtedly intended by the instruction to inform the jury, and they must have so understood, that if they found for the plaintiff they could use their common knowledge in assessing his damages, without direct evidence of the specific pecuniary loss. The jury had presented to them, evidence of the -parents of the deceased; their position in life; the occupation of the father; the condition of his health; the age of his son; his intelligence; his ability to earn money, etc.; and it was their province, from this evidence and their general knowledge, to form an estimate of the damages with reference to the pecuniary injuries, present and prospective, resulting to the next of kin. It is impracticable to furnish direct evidence of the specific loss occasioned by the death of a child; and to hold that without such positive proof a plaintiff could not succeed, would in effect defeat any substantial recovery. (Ihl v. Railroad Co., 47 N.Y. 317; City of Chicago v. Scholten, 75 Ill. 469; Railway Co. v. Barker, 39 Ark. 491, and cases cited; Nagel v. Railway Co., 75 Mo. 653; City of Chicago v. Hesing, 83 Ill. 204; M. R. Rld. Co. v. Richards, 8 Kas. 101.)
In the case of Waite v. Teeters, 36 Kas. 604, the instruction that the jury might use their own knowledge in determining the value of the corn, was held to be misleading; but in that case proof could easily have been offered of the value of the corn standing in the field, although it was distant from the railroad and market.
In A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kas. 443, referred to as controlling this case, the deceased was twenty-five years of age, with a widowed mother and a sister, who lived off the property they owned. In that case the testimony showed that the deceased had been worth nothing to his mother up to the time of his death, and it was well said, “that judging the future by the past, the .life of the deceased was one which would have been of little value.” In that case the deceased had lived long enough to establish that there could be no reasonable expectation of pecuniary advantage to the mother from his life.
In A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 Kas. 543, also referred to as an authority, the jury found specially that the deceased was in the habit of drinking intoxicating liquors to excess, for years before his death, and that his life was of no pecuniary value to his next of kin. In such a case, clearly nothing but nominal damages could be recovered. In that case the principal contention was, that as no actual damage or pecuniary loss was sustained by the next of kin, not even nominal damages could be recovered.
It is next claimed that the trial court erred in refusing to require the jury to answer certain special questions. All of the questions which the railway company desired to submit, with one exception, were inquiries as to how much a year the deceased, if he had lived, would have contributed to the support of his father, and the items thereof. In refusing to submit these questions, we think there ° x * was no material error. Much that has already been said concerning the damages to be assessed by the jury in such a case as this, applies with peculiar force to the questions proposed. As the jury may compensate for present and prospective pecuniary injuries, and as the amount of these injuries must be left largely to their discretion, it would be impossible with any reasonable accuracy to have answered the questions. The value of the probable future services of the deceased, to his next of kin, during his minority, must, in the nature of things, have been largely a matter of conjecture. It would be impossible to itemize the value of such probable future services.
“In the very nature of things it seems to us an exact and uniform rule for measuring the value of the life taken away to the survivors, is impossible. The elements which go to make up the value are personal to each- case. All that can well be done is, to say that the jury may take into consideration all the matters which go to make the life taken away of pecuniary value to the survivors, and, limited by the amount named in the statute, award compensation therefor. To go beyond this, and lay down an arbitrary rule for valuing the life of the deceased, a rule applicable to all cases alike, however satisfactory it might be because of its uniformity, would in many instances operate to defeat the accomplishment of the wholesome purposes sought by this act. It was well said by Mr. Justice Nelson in the case of Railroad Co. v. Barron, 5 Wall. 90, that ‘the damages must depend very much on the good sense and sound judgment of the jury, upon all the facts and circumstances of the particular case.’ ” (K. P. Rly. Co. v. Cutter, 19 Kas. 91.)
As to the question whether the deceased knew it was wrong to play upon the turn-table, an answer either way would not have affected the case. He might have known that it was wrong to trespass upon the property of the railway company and yet have had no knowledge that the use of the turn-table was dangerous, or even unsafe. If the company had presented the inquiry whether the de ceased knew that it was dangerous or unsafe to play upon the turn-table, a wholly different question would be before us for determination.
Further complaint is made, that the damages are grossly excessive. We cannot say that the judgment as rendered is so excessive as to require this court to reverse the judgment. In Illinois, where the action was tor the death of a boy between six and seven years of age, a verdict for two thousand dollars was sustained, (Railroad Co. v. Becker, 84 Ill. 483.) In Tennessee, a verdict for three thousand dollars for the death of a child eighteen months old was sustained. (Railroad Co. v. Connor, 9 Heisk. 20.) In New York, where the deceased was between six and seven years of age, the jury awarded thirteen hundred dollars as damages for loss of probable future services, and the court refused to set aside the verdict as excessive. In that case there was no proof that the child was earning anything at the time she was killed. (Oldfield v. Railroad Co., 3 E. D. Smith, 103.) In another case in the same state, where the action was for the death of a boy eight years of age, a verdict of twenty-five hundred dollars was rendered, and the supreme court would not interfere. (McGovern v. Railroad Co., 67 N. Y. 417.) In another case in the same state a girl of six was struck by a locomotive, and killed; the jury awarded five thousand dollars damages. The court was asked to set aside the verdict as excessive, but declined to interfere, saying that as a matter of law it was impossible to say that the actual pecuniary injuries resulting from the death of the infant might not be that amount. (15 Cent. L. J. 286.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Rulon, C.J.:
Defendant Shelia D. Davison appeals from her convictions on various drug charges and a driving while suspended charge, all stemming from a traffic stop and a subsequent search of the defendant’s car following her arrest. We affirm.
Underlying Facts
Officer Brad Smith of the Lindsborg Police Department stopped a vehicle for failing to dim headlights. The defendant was the driver and only occupant of the vehicle. Officer Smith approached the vehicle, made contact with the defendant, and told her he was going to issue a warning ticket for failing to dim headlights.
Officer Smith obtained the defendant’s driver’s license and insurance information and returned to his patrol car to run a check on the defendant. Smith learned the defendant’s license was suspended and arrested the defendant. Smith asked the defendant to step out of the car, and she complied. Smith then searched and handcuffed the defendant before placing her in the backseat of his patrol car. Although the defendant was upset, she did not cause any problems after the arrest. Smith found no weapons on the defendant, was not in fear of his safety, and was not concerned the defendant might escape.
Just before Smith placed the defendant in his patrol car another officer arrived on the scene. After being informed the defendant was under arrest the second officer began to search the defendant’s car, considering the search to be a search incident to arrest.
Meanwhile, Officer Smith asked the defendant if there was anyone who could come get the car. The defendant gave Smith the name and number of a friend. Smith called the friend, who agreed to come get the vehicle.
Officer Smith then helped the second officer complete the search of the defendant’s vehicle. The search revealed a purse on the driver’s seat which contained the following: a hand-rolled marijuana cigarette; a small plastic tube containing a white residue (commonly known as a “snort tube” and used for ingesting powdered narcotics); and a spiral notebook with writings that indicated the notebook was an “owe” sheet. The notebook contained first names or nicknames with dates, dollar amounts, and weight amounts. As we understand, such a notebook may be used by a person selling narcotics to track where and when a sale is made, what is sold, and how much is owed.
On the passenger seat of the defendant’s vehicle, the officers found a black, zippered case containing an electronic scale with a white powder residue on the scale. The black case additionally contained miniature spoons of the type used to bag portions of narcotics and numerous small bags containing crystal methamphetamine. One of the bags of methamphetamine had “Sheila 2W written on the bag in blue marker. The officers found $455.83 in denominations consistent with a drug distribution operation.
No drug tax stamps were found on any of the suspected drugs found within the defendant’s vehicle. Several of the items found in the search were submitted to the KBI laboratory for testing. The tests showed marijuana in the cigarette and methamphetamine in the plastic tube, on the digital scale, on one of the spoons, and in three bags; the contents of the bags had a total net weight of 2.71 grams of methamphetamine.
Once the officers had completed the search, the defendant’s friend arrived and the officers released the vehicle before driving the defendant to the jail. Officer Smith advised the defendant of her Miranda rights. The defendant waived her rights and denied knowledge of the items found in her vehicle. According to the defendant a friend named “Wendy” had been with the defendant earlier in the evening and the defendant suggested Wendy may have left the items in the vehicle. The defendant could not recall Wendy’s last name. The defendant said she picked up Wendy at a friend’s house in Hutchinson and Wendy had exited the defendant’s vehicle upon seeing Wendy’s ex-husband. The defendant said Wendy was in the defendant’s vehicle alone while the defendant purchased gasoline in Hutchinson.
Eventually, the State charged the defendant with one count of possession of methamphetamine with intent to distribute, in violation of K.S.A. 2007 Supp. 65-4161; one count of possession of methamphetamine without drug tax stamps, in violation of K.S.A. 79-5208; one count of possession of marijuana, in violation of K.S.A. 65-4162; one count of possession of drug paraphernalia, in violation of K.S.A. 2006 Supp. 65-4152; and one count of driving while suspended, in violation of K.S.A. 2006 Supp. 8-262.
Later, the defendant filed a motion to suppress all evidence and statements obtained by the officers, alleging such evidence was obtained in the course of an illegal search and seizure.
Before the district court, the defendant asserted the search was controlled by K.S.A. 22-2501, which is Kansas’ provision for searches incident to arrest. K.S.A. 22-2501 provides that when a lawful arrest is made, the officer “may reasonably search the person arrested and the area within such person’s immediate presence” for three enumerated purposes. The defendant argued a “person who has been removed from her car, arrested, handcuffed and placed in a patrol car many feet from her own vehicle is not in the immediate presence of the area searched, that is, the car.” The defendant asserted the search did not fall within the “proximity requirement” of K.S.A. 22-2501 and was therefore illegal.
The State filed an extensive response to the defendant’s motion, including legislative history for K.S.A. 22-2501. The State argued a legislative change to K.S.A. 22-2501 brought Kansas’ law regarding searches incident to arrest within the purview of New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), and its progeny, and the search here was proper under the law set forth in such cases.
The district court agreed with the State’s position that Belton now controls in Kansas following the 2006 amendment to K.S.A. 22-2501, and under Belton the challenged search was a proper search incident to arrest. The district court accordingly denied the defendant’s motion to suppress.
The defendant waived her right to a juiy trial, and the case was tried to the district court on stipulated facts. The defendant preserved the search and seizure issues presented in this appeal and asserted there was insufficient evidence to sustain a conviction. The district court found the defendant guilty of all five counts of the complaint.
The defendant timely appealed.
The Search
On appeal the defendant raised the same issues as presented to the district court.
The material facts underlying the motion to suppress are not in dispute, making the question of whether to suppress a question of law over which this court has unlimited review. See State v. Port ing, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Our analysis will involve interpretation of K.S.A. 22-2501, and such interpretation is a question of law requiring unlimited review. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 22-2501 states:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting tire officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of a crime.”
Our Supreme Court has held that “[i]n Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled” by K.S.A. 22-2501. State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004). The “permissible purposes” are to protect the officer from attack, prevent escape, or discover the fruits, instrumentalities, or evidence of a crime; and the physical “scope” is the pérson arrested or the area within such person’s immediate presence.
The issue squarely before us is the permissible physical scope of the challenged search. The defendant does not challenge the circumstances or the purposes of the search, but only whether the vehicle was within the defendant’s immediate presence as contemplated by the above statute.
The first case cited by the defendant is State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). In Anderson, a police officer made a traffic stop and arrested the driver for driving on a suspended license and for an outstanding warrant. The officer arrested the driver and placed her in the backseat of his patrol car and then returned to her vehicle. The officer and his backup asked the passenger to exit the vehicle and then searched the vehicle, finding a variety of drug-related items. The only possible grounds for the search was that it was a search incident to arrest under K.S.A. 22-2501.
The Anderson court ultimately determined the search and seizure was unlawful under K.S.A. 22-2501 because the officer had not conducted the search for any of the allowable statutory pur poses. There was no concern of attack or escape, and the officer was not searching for fruits, instrumentalities, or evidence of the traffic crime or warrant for which the driver was arrested. Importantly for the analysis of the present case, the Anderson court specifically stated: “There is no issue in the case before us relative to the scope of the search.” 259 Kan. at 21. Because the Anderson court relied on the purpose and not the scope of the search to find it unlawful, Anderson does not support the defendant’s scope argument in this case.
The next case cited by the defendant is State v. Conn, 278 Kan. 387, 99 P.3d 1108 (2004). Conn involved a traffic stop in which the defendant could not produce a driver’s license for the police officer. The officer then conducted a search of the vehicle for the purpose of finding proof of identification and instead found drugs and drug paraphernalia. Citing Anderson, the Conn court determined the search was not a valid search incident to arrest because the search was not conducted for a valid purpose under K.S.A. 22-2501. 278 Kan. at 391-92. The Conn decision does not support the defendant’s argument here because the challenge in Conn was made on the basis of the purpose of the search, not the scope.
The final case cited by the defendant in support of her argument is State v. Vandevelde, 36 Kan. App. 2d 262, 138 P.3d 771 (2006). In Vandevelde, police officers made a traffic stop after observing the defendant engage in actions suggesting the defendant was involved in the sale of narcotics. Due to the defendant’s noncompliance with the officers’ commands, the defendant was arrested and the officers proceeded to search his vehicle, finding rock cocaine in a pipe. After discussing Anderson and Conn, this court determined the search was not a valid search incident to arrest, because it was not reasonably conducted for one of the purposes under K.S.A. 22-2501. 36 Kan. App. 2d at 270-75. Vandevelde does not support the defendant’s scope argument.
The defendant contends the plain language of the statute and the decisions discussed above show the phrase “area within [the] person’s immediate presence” means law enforcement officers cannot search an automobile as a search incident to arrest once the officers have arrested, searched, handcuffed, and then placed the person in a patrol car where that person is not in proximity to and cannot make contact with the vehicle. However, as shown above, the decisions cited by the defendant did not depend on the scope, but rather the purposes of the searches in question.
Case law in Kansas and other jurisdictions indicates when an arrestee has been a “recent occupant” of a vehicle, such vehicle maybe considered to be within the person’s “immediate presence” and therefore within the proper scope of a search incident to arrest under K.S.A. 22-2501.
Before the United States Supreme Court decided Belton, but after K.S.A. 22-2501 was enacted, our Supreme Court set forth six key factors to be considered in deciding whether a vehicle is within the lawful scope (the “arrestee’s immediate control”) of a search incident to arrest. State v. Tygart, 215 Kan. 409, 412, 524 P.2d 753 (1974). The factors are:
“(1) Proximity of the vehicle to the place of arrest; (2) the probability that the véhicle contains seizable items related to the crime; (3) the amount of time which has elapsed between the arrest and the search; (4) the recent departure of the arrestee from the vehicle; (5) the fact that the vehicle had been employed in some way in connection with the crime; and (6) dre character of tire place of arrest, i.e., public street, business premises or private home. Other factors may bear upon the question and no single factor, standing alone, is decisive in a given case for each may have a significant effect on the court’s determination of whether tire search was a reasonable one.” 215 Kan. at 412.
In Belton, the defendant was stopped for speeding. The police officer smelled burned marijuana and spotted an envelope he suspected of containing marijuana on the floor of the vehicle. The officer arrested the four occupants of the vehicle, including the defendant, for possession of marijuana and directed them to stand in four separate areas by the side of the car. The officer then searched the passenger compartment of the car and found cocaine inside a jacket in the car.
The Belton Court was faced with the question of whether the interior of an automobile recently occupied by an arrestee can be considered an “ ‘area within the immediate control of the arrestee.’ ” 453 U.S. at 460. The Belton Court decided “when a policeman has made a lawful custodial arrest of the occupant of an au tomobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460.
In State v. White, 230 Kan. 679, 640 P.2d 1231 (1982), our Supreme Court applied Belton in determining a seizure of a jacket and cap from the vehicle of a defendant arrested for robbery was proper, even though the defendant had already been removed from the vehicle. In State v. Deskins, 234 Kan. 529, 531, 543, 673 P.2d 1174 (1983), our Supreme Court cited White in upholding the lawfulness of a search of the defendant’s vehicle following the defendant’s arrest for DUI, even though the defendant was already in the police car when the search took place. Neither White nor Deskins discussed K.S.A. 22-2501.
In State v. Press, 9 Kan. App. 2d 589, 590, 593-97, 685 P.2d 887, rev. denied 236 Kan. 877 (1984), this court cited Belton, White, and Deskins in upholding the search of an arrestee’s vehicle under K.S.A. 22-2501 where the arrestee was handcuffed and placed in a patrol car with the seat belt fastened before the officers began searching his vehicle. Judge Rees dissented, arguing Belton was being read too broadly, White was decided on mistaken grounds, and Deskins did not sufficiently examine the issue to be cited as dispositive. 9 Kan. App. 2d at 598, 604-06. Judge Rees’ narrower view of Belton was undermined, at least somewhat, by the United States Supreme Court’s later decision in Thornton v. United States, 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004). The Thornton Court reiterated that an arresting officer may search the entire passenger compartment of a vehicle if the arrestee is a “recent occupant,” even if the contraband in the passenger compartment is no longer “readily accessible” to the arrestee. 541 U.S. at 622-23.
This court revived the Tygart factors in State v. Van Wey, 18 Kan. App. 2d 260, 850 P.2d 283 (1993). In Van Wey, police officers arrested the defendant outside an apartment complex for criminal trespass and battery after breaking up a fight in which he was involved. The officers proceeded to search the defendant’s vehicle, even though the defendant was arrested more than 25 feet from the vehicle and the defendant had arrived at the location more than 20 minutes before the fight started. After noting Belton, White, and Press, this court applied the Tygart factors to conclude the defendant was not an “occupant” of the vehicle under Belton, and the search was therefore improper. The court distinguished White and Press by noting the defendants in those cases were removed from their automobiles immediately before the arrest. 18 Kan. App. 2d at 261-62.
Our Supreme Court applied the Tygart factors again while relying on Belton in State v. McClain, 258 Kan. 176, 177, 183-84, 899 P.2d 993 (1995), to uphold police officers’ search of a vehicle after arresting its driver and passenger for armed robbery.
This court subsequently noted Kansas courts have continued to apply the Tygart factors “after acknowledging that Kansas follows Belton.” See State v. Box, 28 Kan. App. 2d 401, 408, 17 P.3d 386 (2000); see also Vandevelde, 36 Kan. App. 2d at 271 (Tygart factors “are helpful when considering the reasonableness of the scope of the search.”).
As we understand, the defendant argues our Supreme Court’s decision in Anderson narrowed the applicability of Belton as to the physical scope of a search incident to arrest under K.S.A. 22-2501. However, as previously noted, the Anderson court stated there was no issue before it “relative to the scope of the search.” See 259 Kan. at 21, 23.
We are convinced Kansas courts have continuously applied Belton to permit the search, under K.S.A. 22-2501, of a vehicle recently occupied by an arrestee, with the determination of whether the arrestee is a “recent occupant” often made by reference to the Tygart factors.
Applying the Tygart factors here leads us to the conclusion the search of this defendant’s vehicle did not exceed the permissible scope. Here, the defendant was arrested in her vehicle, the search began shortly after the arrest was made and shortly after the defendant had departed the vehicle, and the arrest was made at a traffic stop on a public street. These factors all support the validity of the search.
Under the facts here the search here did not exceed the permissible scope for such automobile searches and was a valid search incident to arrest under K.S.A. 22-2501. Accordingly, the district court did not err in denying the defendant’s motion to suppress the evidence seized in this search.
Sufficiency of Evidence
The defendant argues there was insufficient evidence to support her drug convictions. We disagree.
When an appellate court is asked to review the sufficiency of the evidence in a criminal case, the court reviews all the evidence in the light most favorable to the prosecution and must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
The convictions challenged by the defendant are four “possession” crimes: possession of methamphetamine with intent to distribute, in violation of K.S.A. 2007 Supp. 65-4161; possession of methamphetamine without drug tax stamps, in violation of K.S.A. 79-5208; possession of marijuana, in violation of K.S.A. 65-4162; and possession of drug paraphernalia, in violation of K.S.A. 2006 Supp. 65-4152.
To support the conviction of possession of methamphetamine with intent to distribute, the evidence had to show, that the defendant sold; offered for sale or had in her possession with intent to sell, deliver, or distribute; prescribed; administered; delivered; distributed; or dispensed marijuana. See K.S.A. 2007 Supp. 65-4161.
To support the conviction of possession of methamphetamine without drug tax stamps, the evidence had to show that the defendant was a “dealer” who distributed or possessed methamphetamine without affixing the appropriate tax stamp, label, or other indicia. See K.S.A. 79-5208. A “dealer” includes any person who, in violation of Kansas law, acquires or possesses more than 1 gram of methamphetamine. See K.S.A. 79-5201(c).
To support the conviction of possession of marijuana, the evidence had to show that the defendant had marijuana in her possession or under her control. See K.S.A. 65-4162.
To support the conviction of possession of drug paraphernalia, the evidence had to show that the defendant possessed with intent to use any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Act. See K.S.A. 2006 Supp. 65-4152(a)(2).
The defendant’s primaiy argument is there was insufficient evidence to meet the possession requirement for each crime. The defendant contends there was nothing to identify the drugs or drug-related items as the defendant’s, and she claims the items •belonged to “Wendy,” the passenger who the defendant says was riding with her earlier in the evening. This argument fails. This court has previously defined “possession” of a controlled substance as having control over such substance with “ ‘knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence.’ ” State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924, rev. denied 272 Kan. 1422 (2001).
Here, the stipulation of facts shows the officers found numerous drugs and drug-related items in the passenger compartment of defendant’s vehicle, including a marijuana cigarette, 2.71 grams of methamphetamine in various bags, an electronic scale with methamphetamine residue, a notebook that appeared to be an “owe sheet,” a “snort tube,” and $455.83 in cash. The marijuana, “snort tube,” and “owe sheet” were found in a purse on the driver’s seat. The scale, money, and bags of methamphetamine were found on the passenger seat of the vehicle. The defendant was the only occupant of the vehicle.
The drugs and drug-related items were found in close proximity to the defendant in a vehicle of which the defendant was the only occupant. There is sufficient evidence the defendant was in possession of these items.
The defendant next contends there was no evidence of any drug sale activity or that the defendant was involved in such activity. However, the officers testified the “owe sheet,” the electronic scale, and the money were all indicative of drug sales. Additionally, there were “numerous small bags” containing methamphetamine. This evidence was sufficient to show drug sale activity. The defendant’s proximity to and exclusive control over these items were sufficient to link her to this activity.
There was sufficient evidence supporting the defendant’s convictions.
Affirmed. | [
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Opinion by
Clogston, C.:
This was an action brought by the Wyeth Hardware and Manufacturing Company against Henry Geiss, to recover for an alleged breach of a contract for the purchase of certain manufactured goods sold by the plaintiff to the defendant, and which defendant refused to accept. Plaintiff claimed damages, first, for the cost of pack ing the goods; second, for the difference between the cost, or. manufactured value of the goods, and the price for which they' were sold to the defendant. Trial by a jury, and judgment for plaintiff for $87.50 and costs. Of this judgment the defendant complains.
But one question is presented for consideration. That is, What is the rule or measure of damages in case of a sale of manufactured articles, where the purchaser refuses to accept them ? There is no substantial difference or dispute between the counsel for the parties as to the true rule or measure of damages; and both concede the rule to be the difference between the actual market value of the goods and the price for which they were sold; or in other words, the profit sold at over and above the actual market value of the goods. But counsel for plaintiff in error insist that the evidence given did not establish damages under this admitted rule, and that the court did not properly instruct the jury under the evidence and the rule of damages.
The plaintiff company, to establish its damages, called one J. E. Edmunds, who testified that he had been in the employ of the plaintiff for several years as a traveling salesman, and that he knew the cost price of the goods in controversy. Plaintiff asked the witness the following question:
“I will get you to state, if you know, at about what profit, if any, you sold this bill of goods to the defendant over and above the cost price for which they could have been manufactured.”
To which question defendant objected, and the objection was overruled by the court.
Ans.: “The bill of goods was sold at a profit of from 5 to 8 per cent, over the cost of the same, by plaintiff to defendant.”
Ques.: “ What profit was the plaintiff getting by said sale made by the plaintiff to the defendant, over the cost price of the goods?”
Question objected to, and overruled.
Ans.: “The profit of the plaintiff on the sale made of the goods set out in the petition would have been from 5 to 8 per cent, on the amount of the sale.”
The court on said evidence gave the jury the following instruction on the question of the measure of damages:
“The rule of damages would be, or the amount that these people would be entitled to recover would be, the reasonable-cost they had incurred in putting up the goods, together with what profit would have been made by them in case he had received the goods and paid for them.”
This was all the testimony and instructions on the question of damages, or measure of damages, except evidence showing the cost of packing the goods. It must be remembered that the goods were purchased from the manufacturer of the goods, and the witness Edmunds testified to the cost price, or what they could be manufactured for, and then the price per cent, above this value at which plaintiff sold the goods. We think this was equivalent to proving their market value, and the measure of plaintiff’s damages.. The cost value, or the cost of manufacture when manufactured for a purchaser, would be presumably the market value of the manufactured articles.
The court instructed the jury on the measure of damages, and confined the rule to the profit the plaintiff would have made had the goods been received. This we think was the proper measure. True, the instruction was very meager in stating the rule, but the record does not show that any additional or further instructions were asked for and refused by the court. If the defendant was not satisfied with this instruction, he ought to have asked to have additional instructions given. It was the duty of the court to instruct on the law, giving the jury such instructions under the evidence as to the measure of damage as it deemed proper; and the instructions given being proper, this court will not grant a new trial for the sole reason that the trial court meagerly stated the rule or measure of damages in its instructions, unless it is shown that the jury was misled. We think that the evidence was competent and properly admitted to establish the measure of damages, and that the instructions of the court were proper thereunder.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Hill, J.:
This is a workers compensation appeal arising from Sharon McCready s work at Payless Shoesource, Inc. McCready made a claim for benefits after she hurt her right anide when she stepped on a roll of tape that-was left on the floor at her workplace. Then, several months later, as she was returning to work after visiting a company doctor, McCready fell, with no explanation why, on the sidewalk going to her employer s warehouse and hurt her right knee, right wrist, and her back. McCready made a claim for those injuries as well. An administrative law judge and then the Workers Compensation Board awarded McCready workers compensation benefits for both claims. Here, Payless Shoesource, Inc., appeals the awards made by the Board.
In this appeal, Payless raises allegations about both of Mc-Cready s injuries. Payless contends her anide impairment is a result of McCready’s preexisting diabetic condition. The employer argues its expert’s testimony about this is more persuasive than the other two doctors who testified. Because the law directs us not to weigh the evidence at this point and we review the appellate record in a light favorable to the prevailing party, we hold the Board’s findings about this ankle injury are supported by substantial evidence and affirm.
Turning then to the second injuiy (caused by the unexplained fall), Payless argues McCready simply fell while walking to her job site, a normal day-to-day activity and her injury is therefore not compensable. We do not think the resolution of this issue is so simple. Workers compensation is our method of providing cash-wage benefits and medical care to the victims of work injuries in Kansas. In such cases, either the employers or the employees bear the risks of injury, depending on the nature of the risk. These risks are grouped into three general categories by our Supreme Court: those risks particular to the job; those personally associated with the worker; and neutral risks, not associated with either employer or employee. The employer bears the costs of neutral risks. Unexplained falls at work are neutral risks. In the light of Supreme Court precedent, we must agree with the Board’s risk analysis. Because McCready’s fall was unexplained and substantial competent evidence supports the Board’s impairment findings, we affirm.
The case history reveals three injuries received at dijferent times with one claim now undisputed.
Sharon McCready’s work history reveals challenges because over the years she suffered three injuries at work. She worked as a general warehouse employee for Payless from February 1998 to October 2006. She packed shoes into individual boxes at a rate of 600 boxes per hour. This job required her to lift up to 45 pounds and often to be on her feet for 10 hours a day, except for during her lunch and two other breaks. Her last actual working day at Payless was September 30, 2005.
McCready’s first two accidents at work came about 3 years apart. Her first work injury came on February 2, 2002. She injured her right knee and right wrist when she fell down some stairs. Mc-Cready reported the accident to Payless and received medical treatment for her injuries from Dr. Donald T. Mead. After looking at her X-rays, Dr., Mead assessed McCready s injuries as sprains and treated her with support bandages. Then, on March 17, 2005, while at work, McCready injured her right ankle when she stepped on a roll of tape. She reported the accident to her supervisor but did not seek medical treatment until July 2005. In July, Payless sent McCready again to Dr. Mead who made an X-ray examination and then referred her to Dr. Peter Lepse. After a magnetic resonance image study was made of her right ankle, McCready was placed on work restrictions and put on light duty at work.
Then, McCready received her third injury on September 9, 2005. McCready left work to visit Dr. Mead so she could receive an impairment rating for her right knee and right wrist injured in her fall in 2002. When she left for her doctor s visit, she clocked out of work. After Dr. Mead finished his evaluation of McCready s wrist, a friend picked her up and drove her back to the warehouse. He dropped McCready off at the handicapped walkway leading up to the front door of the warehouse. When McCready got out of the car, she was wearing a brace on her right anide. She turned to her right to step toward the warehouse door and fell forward, landing on her right knee. McCready could not explain why she had fallen but stated that “[she] saw the door and then [she] saw the cement.”
McCready’s injuries lead to claims for workers compensation benefits.
McCready claimed workers compensation benefits for her various injuries. An administrative law judge heard her initial claims. The judge found McCready suffered a 2% impairment to her right wrist from the February 2, 2002, fall; that she suffered a 10% right ankle impairment from the March 17, 2005, accident of stepping on the roll of tape, and that she suffered a 5% right knee impairment as a result of her fall on September 9,2005. While the parties did not dispute the judge’s ruling about McCready’s right wrist, both McCready and Payless appealed the other awards to the Workers Compensation Board.
Both parties made contentions of error to the Board. Payless contended McCready’s September 2005 fall did not arise out of and in the course of her employment. But, if the fall is compensable, Payless stresses McCready only sustained a knee impairment. The employer also argued to the Board that McCready’s 10% right ankle impairment rating (a rating stipulated to by both sides) is not attributable to the accident on March 17, 2005, but it is related to her diabetic condition. On the other side, in her appeal to the Board, McCready argued contrary to the administrative law judge’s conclusion, that she did suffer permanent impairment in her low back and right hip from the September 2005 fall.
We summarize the doctors’ evidence found in the record.
Dr. Sankoorikal assigned McCready a permanent partial impairment of 5% for the whole body. But he based this rating on the premise that McCready lacked a history of back pain. Mc-Cready had never mentioned to Dr. Sankoorikal that she had seen Dr. Tennant (a chiropractor) prior to the fall. Had he known that information, Dr. Sankoorikal stated he might have apportioned some of that rating to her preexisting back condition: “If — if I had known that it was the same — same treatment as given her for probably the same complaints, probably I would have apportioned that. ... I would say maybe 60/40, 60 percent for aggravation of her existing problem maybe.”
Dr. Mead assigned permanent impairment ratings of 2% for McCready’s upper extremity (right wrist) and 0% for her right knee. Although Dr. Mead was not hired to assign McCready a rating for the injuries she sustained in the September 2005 fall, he provided such an opinion in his deposition. Because McCready had never informed him of her previous back complaints and treatments with Drs. Tague (weight loss) and Tennant (chiropractic), Dr. Mead stated that with this information, he would have changed his original diagnosis to chronic preexisting back pain and would have ordered her to follow up with her personal doctor. Also, in reviewing Dr. Tennant’s records, Dr. Mead opined he would have assigned her a 5% impairment rating for her low back preceding the September 2005 fall because the fall did not cause any change to her back impairment.
McCready hired Dr. Koprivica, who established impairment ratings for all of her injuries. Although Dr. Koprivica did not personally evaluate McCready, he based his assessment on her subjective complaints and her medical records. In his reports, Dr. Koprivica provided the following ratings:
a. For the injuries she alleged to have occurred on February 2, 2002, Dr. Koprivica assigned a 0% impairment rating to her right knee and a 10% mild impairment rating to her right wrist.
b. For the injuries she alleged to have occurred on December 17, 2003, Dr. Koprivica assigned a 0% impairment rating to her left knee.
c. For the injuries she alleged to have occurred on March 17, 2005, Dr. Koprivica assigned a 10% mild impairment rating to her right ankle. Dr. Koprivica believed that McCready had sustained a right anide sprain and, currently, was at maximal medical improvement.
d. For the injuries she alleged to have occurred on September 9, 2005, Dr. Koprivica assigned a 35% impairment rating to her right knee and a 5% impairment rating to her low back that included the right hip. We note that McCready did not mention her treatments with Dr. Tennant to Dr. Koprivica. However, even after considering Dr. Tennant’s treatment, Dr. Koprivica stated he would not apportion any of the 5% to preexisting problems because 'a change in his assessment would have to be based on whether she was symptomatic on an ongoing basis during that time frame.
The Board affirms but changes one part of the award.
The Board unanimously affirmed part of McCready’s initial award of benefits, and a majority modified her award to include a permanent partial impairment to the body as a whole. Based on the evidence, the Board affirmed the administrative law judge’s findings on McCready’s right anide injuries. Going on then to her back injury, a majority of the Board affirmed the administrative law judge’s ruling of granting benefits for this injury but disagreed with his rationale. The majority determined that McCready’s injuries from the September 2005- fall constituted an unexplained fall, which it found compensable. Because the majority found that the September -2005 fall arose out of and in the course of employ ment, the majority then examined whether that fall caused Mc-Cready s low back and right hip injuries. Relying upon the experts’ general agreement that McCready sustained a 5% permanent impairment to her back, the majority found that the September 2005 fall was the attributable factor. Therefore, the majority revised the judge’s decision and awarded McCready compensation benefits for a 5% permanent partial impairment to the body as a whole for McCready’s back complaints.
We review first McCready’s right ankle impairment claim and affirm the Board’s decision.
The Workers Compensation Board affirmed the administrative law judge’s findings on this issue based on the evidence. The Board weighed the testimony of the doctors and were not persuaded by Dr. Baker:
“There is no dispute that claimant suffered an accident on March 17, 2005 when she turned her ankle. The dispute stems from the fact that claimant also suffers from diabetes and according to Dr. Baker, the physician who respondent retained to provide a rating examination, claimant’s anide injury was caused by the diabetic condition rather than the accident claimant describes. No other physician came to this conclusion and like the ALJ, the Board is not persuaded by this testimony.”
The employer challenges the Board’s decision. Payless argues that the permanency of McCready’s right ankle impairment was caused by her preexisting condition of diabetes and not the incident that took place on March 17, 2005. Payless cites Dr. Baker’s testimony to us for support.
Our standard of review on this issue is simple. As an appellate court, we limit our review of questions of fact in a workers compensation case to whether the Board’s findings of fact are supported by substantial evidence. Actually, this is a question of law. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007).
The record shows the experts agreed on some points and disagreed about others. Dr. Koprivica and Dr. Baker gave 10% impairment ratings for McCready’s right anide. Also, both doctors agreed that on March 17,2005, McCready sprained her right anide after stepping on a roll of tape. Dr. Baker, however, further concluded that McCready s sprain in her right ankle should have resolved itself and any “pathology that remains in this ankle is related to her diabetic arthropathy and neuropathy.” It is on this distinction that Payless requests this court to reverse.
But we do not weigh evidence, especially when both diagnoses are supported by the record:
“Substantial evidence in the workers compensation context is evidence possessing something of substance and relevant consequence to induce conviction that an award is proper; it furnishes a basis of fact from which an issue can be resolved reasonably. We review the evidence in the light most favorable to the prevailing party and do not reweigh competing evidence or assess credibility of witnesses. [Citations omitted.] The Board’s findings will be upheld ifsupported by substantial evidence even though other evidence in the record would have supported contrary findings. [Citation omitted.]” (Emphasis added.) Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007).
We must defer to the expertise of die Workers Compensation Board on this point and not substitute our judgment for the Board’s. The Board’s findings on this issue are supported by substantial evidence from Dr. Koprivica. We affirm the Board’s award for the right anide impairment.
When reviewing the Board’s findings arising from the unexplained fall, we look at the statutes, a recognized authority, some prior cases, and the record on appeal.
Fundamentally, our Workers Compensation Act (K.S.A. 44-501[a]) requires an employer to compensate its employee for personal injuries if they arise “out of’ and “in the course of’ employment. Those two terms, “out of’ and “in the course of,” have acquired specific meanings from the many cases that have construed them. Their significance arises from being conjoined:
“ ‘The two phrases arising “out of’ and “in the course of’ employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase “out of’ employment points to the cause or origin of the worker’s accident and requires some causal connection between the accidental injury and the employment. An injury arises “out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injuiy. Thus, an injury arises “out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase “in the course of’ employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. [Citations omitted.]’ (Emphasis added.) [Citation omitted.]” Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006).
Therefore, in order to receive workers compensation benefits, McCready must show this back impairment arose out of and in the course of her employment.
We look first at the time, place, and circumstances of the accident, or the “in the course of’ component of the equation. Coming back to work, McCready fell on the sidewalk going into the warehouse. Ordinarily, the “going and coming rule” would exclude such an injuiy from falling within the scope of “out of and in the course of employment.” See Sumner v. Meiers Ready Mix, Inc., 282 Kan. 283, 288-89, 144 P.3d 668 (2006). This rule is found in K.S.A. 2007 Supp. 44-508(1):
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
The “going and coming rule” is based upon the belief that, while on the way to or from work, the employee is exposed only to the same risks or hazards as the general public encounters, so that such risks are not causally related to the employment. Thus, if an injury falls within the “going and coming” rule, the employee will be denied compensation under the Act. Sumner, 282 Kan. at 289.
Despite this exclusionary rule, Kansas recognizes several exceptions to the “going and coming rule.” See 282 Kan. at 289. The premises exception applies here. Rinke, 282 Kan. at 753; K.S.A. 2007 Supp. 44-508(f). The premises exception comes from the language in K.S.A. 2007 Supp. 44-508(1), which reads:
“An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.” (Emphasis added.)
The evidence supports the application of the premises exception here. The evidence shows that McCready fell on the handicapped walkway leading up to the front door of Payless. Payless does not dispute that this walkway is part of its premises: “Claimant exited a friend’s car on Respondent’s premises.” (Emphasis added.) Significantly, the administrative law judge found that McCready’s September 2005 fall was employment related and compensable. This finding was not disturbed by the Board. Seeing no evidence to the contrary in the record, we also conclude that McCready’s injuries from the September 2005 fall arose in the course of her employment with Payless.
Next, we examine the arising “out of’ requirement. Apparently, Payless disputes only the first question, whether McCready’s injuries from the September 2005 fall arose out of her employment with Payless. This was also the sole focus of the Board on the point. Our court reviews this question under a substantial competent evidence standard. Anderson v. Scarlett Auto Interiors, 31 Kan. App. 2d 5, 9, 61 P.3d 81 (2002).
One of the purposes of civil law is to allocate risk. Someone bears the risks of personal injury. In the law of workers compensation, the responsible party who bears the risk can be either the employer or the employee. Our Kansas Supreme Court recognizes three categories of risks in which injuries may occur. The subsequent care for those injuries and impairment may or may not be compensable by workers compensation law. See Hensley v. Carl Graham Glass, 226 Kan. 256, 258, 597 P.2d 641 (1979). Hensley establishes three general categories of workplace risks: (1) risks distinctly associated with the job; (2) risks which are personal to the worker; and (3) neutral risks which have no particular employment or personal character. 226 Kan. at 258.
The risks falling in the first category are universally compensable. The risks falling in the second category do not arise out of employment and are not compensable. See Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 299, 615 P.2d 168 (1980). And the risks of the third or neutral categoiy are compensable. Larson’s Workers’ Compensation Law explains the precept as a positional risk or but-for logic:
“[T]he nature of the cause of harm may be simply unknown. The commonest example of [this] is the unexplained fall in the course of employment. If an employee falls while walking down the sidewalk or across a level factory floor for no discoverable reason, the injury resembles that from stray bullets and other positional risks in this respect: The particular injury would not have happened if the employee had not been engaged upon an employment errand at the time. In a pure unexplained fall case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that this but-for reasoning satisfies the ‘arising’ requirement.” 1 Larson’s Workers’ Compensation Law §7.Q4[1][a], pp. 7-28 to 7-29.
In Hensley, the Supreme Court found that sniper fire was a compensable neutral risk. Hensley was installing glass around air conditioners on the roof of a parking garage when a sniper began firing shots. Ten individuals, including Hensley, were struck and either killed or injured by the sniper fire. The claimant, Hensley’s wife, was awarded workers compensation benefits. The issue on appeal was whether the injury to the decedent arose out of his employment. In deciding that issue, the court in Hensley classified the sniper’s assault on Hensley as a neutral risk because “[t]he chance of being struck by sniper fire is not an ordinary risk associated with glass installers nor was the shooting of Hensley motivated by any personal connection with the sniper.” 226 Kan. at 258. Finally, the position Hensley’s employment placed him in was telling for the court:
“ ‘The fact that at least three of the first six shots were fired at decedent and his co-worker clearly shows that they were prime targets, because of their physical location. Had they been on the street level, walking or driving, as was the general public they might not have been targets. In that situation they might have been on equal footing with the general public, however, since they were in an elevated position making them closer to the sniper, their risk of being shot was substantially increased.’ ” (Emphasis added.) 226 Kan. at 262.
These three categories of risk provide context and meaning for other statutes and cases, such as those that deal with day-to-day activities and personal conditions.
We review our statute and cases dealing with day-to-day living and personal conditions.
Preexisting disabilities, as a rule, receive no workers compensation benefits. K.S.A. 2007 Supp. 44-508(e) defines “personal injury” and “injury” as:
“ ‘Personal injury’ and ‘injury’ mean any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.” (Emphasis added.)
It is important to point out that the statute refers to a disability (not the injuiy) which is a result of the natural aging process or normal activities. A review of some contrasting rulings will clarify this rule.
In Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 299-300, 615 P.2d 168 (1980), a-panel of the Kansas Court of Appeals declined to construe the employee’s back injury from exiting his truck in the employer’s parking lot as a compensable neutral risk and likened it more to a noncompensable personal risk. In Martin, the claimant-employee worked as a custodian. After the claimant pulled into the employer’s parking lot and parked his truck, he hurt his back while getting out of his truck. Prior to this incident, it was undisputed that the claimant had experienced problems with his lower back. The personal risk of injuiy was particular to the claimant because of his condition and not because of his employment.
In contrast to Martin, in Anderson v. Scarlett Auto Interiors, 31 Kan. App. 2d 5, 61 P.3d 81 (2002), the Kansas Court of Appeals did not believe that the employee’s back injuiy from frequendy entering and exiting vehicles was a noncompensable personal risk. In Anderson, the claimant got in and out of cars 20 to 30 times a day in the course of installing convertible tops, headliners, and carpets. The claimant was injured while entering a vehicle when he heard a pop in his lower back. The claimant testified that incident intensified his existing back problems and caused him to suffer new pain in his right leg. Prior to this injury, the claimant had received treatment for his low back pain. His back condition was aggravated by any activity that required him to bend over, stoop, or lift heavy items.
The court in Anderson determined that “[although Anderson’s back problems could be aggravated by everyday activities, that fact alone is not controlling” because the claimant’s injury stemmed not only from his personal degenerative conditions but also from a hazard of his employment, i.e., the requirement that he constantly enter and exit vehicles. 31 Kan. App. 2d at 11. Here, the risk of injury was associated with the job. Entering and leaving cars 20-30 times per day was peculiar to the work and not to the claimant; therefore, the injury and disability was compensable.
Exposure to the risk from the nature of the employment is important. The court in Anderson relied upon Siebert v. Hoch, 199 Kan. 299, 304, 428 P.2d 825 (1967), which indicated that an injury arises out of employment if the injury is fairly traceable to the employment and comes from a hazard the worker would not have been equally exposed to apart from the employment. In applying that rule, the court in Anderson determined that “[i]f Anderson had not been employed as he was, he would not have been equally exposed to the risk drat ultimately caused his injury.” 31 Kan. App. 2d at 11. Therefore, the court in Anderson upheld the Board’s decision that the claimant’s condition arose out of his employment. 31 Kan. App. 2d at 12.
In another personal condition case, similar to Martin, Johnson v. Johnson County, 36 Kan. App. 2d 786, 147 P.3d 1091, rev. denied 281 Kan. 1378 (2006), a panel of this court determined that an injury resulting from getting up out of a chair at work was a normal activity of day-to-day living, and thus not compensable. Both the administrative law judge in the case and the Board found that the claimant’s injury arose out of her employment. The panel in Johnson reversed, citing facts from the record reflecting that Johnson had a history of three or four incidents of left knee pain. Also her treating physician had testified that she had years of knee degeneration and had some prior problems with the knee and “it was just a matter of time.” 36 Kan. App. 2d at 788. Again, in this case the personal risk of injury was particular with the claimant because of her knee condition. The disability was a result of a disease or aging process peculiar to the claimant, not her work.
In this case, the dissenter on the Board cited Johnson as support for denying McCready’s claim. But in Johnson, the mechanism of injury and risk are clearly identifiable, rising from a chair, turning, and reaching for something. Further, the preexisting degenerated condition of the claimant’s knee illustrated the personal nature of the risk. The statute and cases outlined above focus on personal risks, unique to the employees. These cases do not control here because this case involves an unexplained fall — a neutral risk.
This was truly a neutral risk. Neither party could explain the reason for McCready’s fall. Getting out of the car did not cause her injury such as in Martin and Anderson. Standing up from a chair did not cause her disability as in Johnson. McCready was on the premises coming back to work and, giving deference to the Board’s view of the facts, her disability does not arise from some personal condition. The risk should therefore be borne by Payless as the Board concluded.
We think the Board has read Hensley correctly. The record discloses, in the administrative law judge’s findings, references to several other claims where the Board has held that neutral risks or unexplained falls are compensable. Those rulings appear to be consistent with our Supreme Court’s risk analysis in Hensley. We must give deference to the Board on this point because it is required by law to help administer our Kansas workers compensation benefits. McCready’s unexplained fall was a neutral risk. We hold Mc-Cready’s injury arose out of her employment.
Our colleague in dissent notes that Kansas courts need not struggle with the relative risks of unexplained falls. This statement is true because our Supreme Court in Hensley ruled neutral risks are compensable. Ignoring this ruling, the dissent tries to stretch our statute that bars compensation from instances where a worker’s disability is a result of the natural aging process or by the normal activities of day-to-day living to shield Payless in this case. Mc-Cready had no diseased knee that gave way as in Johnson, nor did McCready have chronic back degeneration as in Martin. McCready fell in the course of her employment with no explanation. As the Board has ruled, this is a neutral risk that is compensable.
We are not convinced that McCready’s back condition was caused from a preexisting condition.
Since we have found McCready s back injuiy arose out of her employment, we must examine Payless’ remaining contentions. Payless argues that there is not enough evidence to find that McCready injured her back as a result of the fall because of her preexisting condition. Essentially, Payless asks this court to weigh evidence and assess the credibility of witnesses. As we have previously noted, this court is precluded from doing so. See Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007). Instead, this court is confined to reviewing this issue using the substantial competent evidence standard. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007).
The record reveals substantial support for the Board’s findings. Dr. Koprivica believed that the September 2005 fall caused McCready’s impairment to her back. In addition, after considering the information that McCready had previous back treatments with Dr. Tennant, Dr. Koprivica testified that he would not apportion any of the 5% to preexisting problems because “[t]he critical information factually for me would be whether or not [McCready] continued to be symptomatic on an ongoing basis.” Therefore, we conclude substantial competent evidence exists to support the Board’s findings that the September 2005 fall was the cause for McCready’s 5% permanent impairment to her back.
We decline to affirm only the scheduled injuries.
Payless asks us not to consider McCready’s back injuiy in deciding whether McCready is permanently and totally disabled. Payless argues that only the scheduled injuries found in K.S.A. 44-510d should apply here. The employer wants us to view only McCready’s right ankle injuiy of March 17, 2005, and any aggravation of her preexisting right knee injuiy of September 9, 2005, in the compensation calculation. If we did that, McCready would receive no benefits for permanent partial general disability.
We decline this invitation. The Board awarded McCready 5 percent permanent partial impairment to the body as a whole for her back complaints and permanent total disability benefits as of September 9, 2005. In addition, the Board held that the September 2005 fall caused her back injury. As we previously stated, these findings are supported by substantial competent evidence, and contrary to Payless arguments, this court will not reweigh such evidence to find otherwise.
K.S.A. 44-510e covers compensation for permanent partial general disabilities and thus covers those not included in the 44-510d schedule. K.S.A. 44-510e(a) reads:
“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto. 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.”
In this instance, K.S.A. 44-510d only covers McCready s right wrist, right ankle, and right knee. See K.S.A. 44-510d(a)(12), (a)(15), and (a)(16). McCready’s low back injury would qualify under K.S.A. 44-510e. Our courts have held that if the injury is both to a scheduled member and to a nonscheduled portion of the body, compensation should be awarded under K.S.A. 44-510e. Bryant v. Excel Corp., 239 Kan. 688, 689, 722 P.2d 579 (1986). Therefore, the Board did not err in considering McCready permanently and totally disabled.
Affirmed. | [
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Opinion by
Simpson, C.:
The only question discussed by counsel on both sides in their briefs is, the power of the court to make the amendment. This consisted in substituting the name of E. J. Young as plaintiff, in the place of Joseph M. Young, who, by mistake of the attorney for defendant in error, was originally made the plaintiff in the action. E. J. Young is the wife of Joseph M. Young, and is the person to whom the deed was made, which is now claimed to have conveyed to her the title to the land involved in this controversy. We must confess that if this question were now presented to the court for the first time, we would have great difficulty in controlling the argument, and resisting the authorities cited by counsel for the plaintiff in error. The line of decision heretofore made by the court on this question is broad enough to embrace the amendment made in this case, and there is no error in the district court permitting it. In City of Atchison v. Twine, 9 Kas. 350, the action was brought by the widow, and the court permitted the administrator to be substituted as plaintiff; and this court, by Chief Justice Kingman, says that “ the power of the court to make the amendment is undoubted. Nor should we hesitate if it were the mere substitution of one name for another.”
In National Bank v. Tappan, 6 Kas. 456, the action was brought in the name of Tappan. It turned out on the trial that the claim was in favor of the firm of Tappan & Weichselbaum, and the amendment was made and affirmed here.
In Hanlin v. Baxter, 20 Kas. 134, the action was entitled in the name of John B. Baxter, and Wm. O. Baxter was substituted as plaintiff in the suit. These cases seem conclusive against the claim of the plaintiff in error.
We recommend the affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought by J. B. Andrees against Lizzie Osborne and her husband, J. W. C. Osborne upon a certain promissory note of four hundred dollars, secured by a mortgage, alleged to have been executed by Osborne and wife to J. B. Andrees. In answer to the plaintiff’s petition, Osborne and wife admitted the signatures upon the note and mortgage to be theirs, but contended that the terms and conditions of the note, as well as the mortgage, had been materially altered since the execution and delivery of the same to the plaintiff. The jury returned a general verdict for Andrees against Osborne and wife, and Lizzie Osborne complains thereof. The note set forth in the petition is as follows:
“ $400. Cherryvale, Kas., June 28,1881. — Six months after date, we promise to pay to the order of J. B. Andrees four hundred dollars, payable at Cherryvale, Kansas, with interest at the rate of 12 per cent, per annum from date until paid — interest payable at maturity of note. Due Dec. 28. Value received. J. W. C. Osborne.
Lizzie Osborne.”
In addition to the general verdict, the jury also returned into court certain special findings of fact, as follows:
“Q,. Was the mortgage in suit, after it was signed and acknowledged by Osborne’s wife, altered by Osborne, so as to make it read, ‘ with interest from due/ instead of ‘ with interest from date’? A. Yes. Q,. Was this alteration made with Andrees’s knowledge and consent? A. No. Q,. Was such alteration made without the knowledge and consent of Mrs. Lizzie Osborne? A. We believe it was.”
Upon the findings of fact, Lizzie Osborne, the wife, moved the court for judgment in her favor; this was refused, and thereupon she filed her motion fora new trial; this was overruled. All the evidence produced upon the trial shows that the note and the mortgage were signed, as alleged in the petition, “ with interest from date.”
J. W. C. Osborne testified concerning the alteration, as follows :
“ I drew up this note and mortgage. They are in my hand-write. At the time I drew up the papers, I thought I was to get the $400, and pay interest at the rate of twelve per cent, per annum from date, and I drew the note and mortgage that way; that is, I drew the note to read ‘ with interest from date at the rate of twelve per cent, per annum — interest payable at maturity of note.’ When I presented the note to Mr. Andrees, he said he could not let me have the money that way, and wanted to deduct the interest from the face of the note. I finally agreed to let him do so, and I then erased the word ‘date’ and wrote the word ‘due’ after it, and that made the note read ‘with interest from due’ at twelve per cent, per annum till paid — interest payable at maturity of note. Andrees accepted the note in that condition, and gave me $376. I made the change in the note and mortgage after my wife had signed them and acknowledged the mortgage.”
Andrees testified in answer that—
“At the time I loaned Osborne the $400, I went to his office in Cherryvale and he showed me the note and mortgage. I read the note and it was all right, just as we had agreed upon. That is, it read with interest at 12 per cent, per annum from date — interest payable at maturity of note; and I said to him that that was all right. I then glanced hurriedly over the mortgage, but did not read it. I saw that the lots were described, and that the mortgage was signed and acknowledged, and I threw it and the note down on the table in front of Osborne and turned partly around, so that my back was partly to Osborne. As I was reaching my inside coat pocket for my pocket-book for the money to give him, I heard him make a move, and I glanced over my shoulder and saw him crossing out the word 'date’ in the note and writing the word ‘due’ after it. I turned around and asked him why he did that, and hesitating a moment, he then tried to make me believe that 'due’ was the word we ought to use in the note to make it read right. He insisted that he was right, and I told him that unless he changed the word ‘due’ back to ‘date’ he would not get any of my money. He then took his pen and wrote ‘ate’ over ‘ue,’ in the word due, and I then accepted the note in that condition and gave him $400 in cash. I did not deduct the interest from the face of the note, as he has testified, at all. He took the mortgage and put it in an envelope, and told me I. ought to send it to Independence at once and have it recorded, and I did so without again looking at it. Osborne did not want to take the $400 loan at first; he wanted $700, and claimed that $400 would not be enough to let him out; that he owed some small claims amounting to more than fouihundred dollars; but I would not let him have any more on his property, and he finally took it.”
It is evident from the instructions and the general verdict, that the jury believed when Andrees received the note and mortgage, that the note read, as originally signed, " with interest from date.” The defendants below attempted to show that the note, when actually delivered, read, "with interest from due.” In this view, the finding of the jury, that the mortgage was altered by Osborne so as to read “ with interest from due” instead of “with interest from date,” is immaterial; because, although it is true that Osborne changed the note “from date” to “from due,” under the instructions and general finding of the jury the jury found in accordance with Andrees’s evidence that Osborne corrected the note from “due” to “date” before he delivered it to Andrees: in other words, Osborne attempted to change “date” to “due,” and thus by altering the note and mortgage render them absolutely void ; but when detected in his purpose, he corrected “due” to “date” in the note, and upon the note as thus corrected Andrees loaned the money. This is the note which the mortgage was intended to secure. This is the note which was actually secured by the mortgage. Under the general verdict and the findings, the change in the mortgage of “date” to “due” was the fraudulent act of Osborne, made without the knowledge or consent of either his wife or the mortgagee, and when the mortgagee accepted the note and mortgage he understood that the note was secured by the mortgage, and that the mortgage corresponded with the note, which then read “with interest from date.” The fraudulent act and conduct of Osborne ought not, and it will not, defeat recovery on the mortgage.
Upon the conclusion we have reached, the refusal of the court to allow Mrs. Osborne to show that the property described in the mortgage had been occupied by her and her husband as their homestead, is immaterial.
We have not deemed it necessary to consider the exceptions presented to the case-made — although some of them are well taken — as the judgment rendered is not to be disturbed.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Briscoe, J.:
Defendant Ricky B. Baker appeals his conviction of two counts of promoting obscenity in violation of K.S.A. 21-4301. Defendant challenges the constitutionality of K.S.A. 21-4301, and also contends his prosecution violates the public policy codified by the statute.
Defendant was employed as a clerk in Plato’s, an adult bookstore in Wichita, Kansas. The bookstore sells books, magazines, sexual devices, and lingerie, and has small booths for showing films. Defendant had been employed as a clerk at Plato’s for only nineteen days prior to the sales which led to his arrest.
Defendant was arrested and charged after two Wichita police officers each entered Plato’s, on two separate occasions, and purchased a magazine from the defendant. Prior to purchase, the magazines had been sealed in clear plastic and stapled to the wall of the store. Defendant concedes the magazines in question are obscene.
Defendant contends K.S.A. 21-4301(4) violates the equal protection clause of the Fourteenth Amendment by creating a distinction between theater projectionists and similar employees such as bookstore clerks. The statute excludes theater projectionists from prosecution for promoting obscenity in most instances.
Promoting obscenity is prohibited by K.S.A. 21-4301 and includes both the sale of obscene magazines and the showing of obscene motion pictures. Subsection (4), however, provides the following exception for theater projectionists:
“The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public.”
When the constitutionality of a statute is challenged, the statute comes before the court cloaked in a presumption of constitutionality. State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978). All doubts must be resolved in favor of its validity and, before a statute may be stricken down, it must clearly appear the statute violates the constitution. State v. Compton, 233 Kan. 690, 697, 664 P.2d 1370 (1983), citing Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). The burden of proof as to the validity of the statute falls on the one attacking the statute. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 519, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983).
Traditionally, the yardstick for measuring equal protection arguments has been the “reasonable basis” test. This standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101 (1961):
“The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
In Dandridge v. Williams, 397 U.S. 471, 485, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914 (1970), it was stated:
“If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ”
A more stringent standard is applied, however, in cases involving either a suspect class or a fundamental interest. Under this standard, the burden is placed on the State to demonstrate that the classification is necessary to accomplish a compelling state interest.
In the present case, the appropriate standard for review is the “reasonable basis” test. The statutory classification does not involve a suspect class, e.g., race or alienage, nor does it interfere with any fundamental right. Obscenity is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 23, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973). The application of the “reasonable basis” standard is consistent with those jurisdictions addressing similar statutes. See, e.g., State v. Johnson, 343 So. 2d 705 (La. 1977); Wheeler v. State, 281 Md. 593, 380 A.2d 1052 (1977), cert. denied 435 U.S. 997 (1978); Commonwealth v. Bono, 7 Mass. App. 849, 384 N.E.2d 1260, rev. denied 377 Mass. 919 (1979); People v. Illardo, 97 Misc. 2d 294, 411 N.Y.S.2d 142 (1978), aff'd 48 N.Y.2d 408, 423 N.Y.S.2d 470 (1979); State v. Burgun, 49 Ohio App. 2d 112, 359 N.E.2d 1018 (1976); State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P.2d 1049 (1973).
In applying the “reasonable basis” standard, the Kansas Supreme Court has stated:
“A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the puipose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” State v. Freeman, 223 Kan. 362, Syl. ¶ 4, 574 P.2d 950 (1978).
The United States Supreme Court has held the “reasonable basis” test “employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task . . . Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 49 L.Ed.2d 520, 96 S.Ct. 2562 (1976).
In contesting the constitutionality of the present statute, the defendant argues that movie projectionists and bookstore clerks are similarly situated and no reasonable basis can be found to distinguish the two. The defendant relies on two cases from other jurisdictions where similar statutes were held unconstitutional. Wheeler v. State, 281 Md. 593; Pack v. Cleveland, 1 Ohio St. 3d 129, 438 N.E.2d 434 (1982).
The State responds that the distinction between projectionists and clerks may be reasonably based on any one of several legislative goals. In support, the State notes that five sister states have upheld similar statutes. In re Kimbler, 100 Cal. App. 3d 453, 161 Cal. Rptr. 53 (1979); Commonwealth v. Bono, 7 Mass. App. 849; People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470 (1979); State v. Lesieure, 121 R.I. 859, 404 A.2d 457 (1979); State v. J-R Distributors, Inc., 82 Wash. 2d 584.
The State advances a number of bases for the statutory distinction drawn between movie projectionists and bookstore clerks which we find persuasive. The State points out that the distinction may be premised on the ability to further distribute printed material. A person who views a motion picture has no means to further disseminate the film beyond the theater, while printed material, once it leaves the store, may be redistributed without limit. This distinction was relied upon in In re Kimbler, 100 Cal. App. 3d. 453, and People v. Illardo, 97 Misc. 2d 294.
Additional bases for the distinction which have been cited by other jurisdictions are: (1) the potential chilling effect the prosecution of projectionists may have on the showing of constitutionally protected films; (2) the fact that bookstore clerks may influence the customer’s choice as to a wide range of materials, while a projectionist must show whatever film has been selected by management; and (3) projectionists, by nature of their work, have less of an opportunity to determine whether a film is obscene than does a bookstore clerk in determining whether a magazine is obscene.
As to each of these arguments, the defendant contends the suggested legislative concern is just as applicable to bookstore clerks. The defendant finds support in two cases from other jurisdictions where courts have found bookstore clerks and movie projectionists to be similarly situated under each of these arguments, and therefore any distinction is unreasonable and offends the equal protection clause. Wheeler v. State, 281 Md. 593; Pack v. Cleveland, 1 Ohio St. 3d 129. The Wheeler case may be distinguished from the present case, however, as Maryland’s statutory exemption applied to all theater employees, not just projectionists. This fact appears to have been of some importance to the Maryland court’s decision.
The only remaining argument advanced by the State is that movie projectionists are assigned by the union to a particular theater and as such are not voluntary employees. This difference, in fact, was the basis of the trial court’s decision in this case. Only the Supreme Court of Ohio has rejected this argument. According to that court, “[t]he continuance, or maintenance, of the existing contract arrangements between the projectionists’ union and the various theaters does not rise to the status of a legitimate state interest.” Pack v. Cleveland, 1 Ohio St. 3d at 133.
Although we are confronted in this case with persuasive authority to support either result, the established principles for reviewing challenges to the constitutionality of statutes generally, and equal protection issues specifically, compel us to uphold the statutory distinction between projectionists and clerks. The numerous bases for the statutory distinction identified by sister states in their review of similar statutes are sufficient to uphold the statute under the “reasonable basis” test set forth in McGowan v. Maryland, 366 U.S. 420.
Defendant’s remaining issues were not raised before the trial court. As a general rule, issues asserted for the first time on appeal are improper for appellate review. State v. Kelly, 204 Kan. 715, 716, 466 P.2d 350 (1970). However, if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court. Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). We will address defendant’s remaining issues because they arguably fall within these exceptions to the general rule.
Defendant contends K.S.A. 21-4301 violates the due process clause of the Fourteenth Amendment because the statute’s definition of obscenity is vague and overbroad. While defendant’s complaints regarding vagueness and overbreadth are closely related, the concepts are distinct. A statute that is vague leaves the ordinary person to guess at its meaning and as to whether any particular conduct is criminal or not. State v. Huffman, 228 Kan. 186, 192, 612 P.2d 630 (1980). A statute which is overbroad makes conduct criminal which is constitutionally protected. State v. Allen & Rosebaugh, 1 Kan. App. 2d 32, 41, 562 P.2d 445 (1977).
K.S.A. 21-4301 defines “obscenity” in subsection (2)(a):
’’Any material or performance is ‘obscene’ if the average person applying contemporary community standards would find that such material or performance, taken as a whole, appeals to the prurient interest; that the material or performance has patently offensive representations or descriptions of ultimate sexual acts, normal or perverted; and that the material or performance, taken as a whole, lacks serious literary, educational, artistic, political or scientific value.”
Defendant contends K.S.A. 21-4301 is so vague that an individual is unable to determine whether or not a specific item is obscene. He contends the statute is overbroad because, although K.S.A. 21-4301 states that any portrayal of an ultimate sexual act is potentially a violation of the law depending upon the community definition of obscenity, not all ultimate sexual acts are obscene under community standards. Defendant cites the district attorney’s guidelines promulgated to assist law enforcement officers as the community definition of obscenity. Defendant argues that, since the district attorney provides a narrower definition of obscenity, the statute is too broad. This argument fails to distinguish between materials which are obscene under the statute and those materials the district attorney believes, in the exercise of his discretion as a prosecutor, are susceptible to effective prosecution.
We find no merit in either of the defendant’s due process arguments. The legislature is not precluded from regulating obscenity because the term cannot be precisely or uniformly defined. In fact, the United States Supreme Court has held language similar to that found in K.S.A. 21-4301 to be sufficient to overcome both arguments, as long as the statute incorporates the standards set out by the court in Miller v. California, 413 U.S. 15. Ward v. Illinois, 431 U.S. 767, 52 L.Ed.2d 738, 97 S.Ct. 2085 (1977). By expressly incorporating the Miller standards in K.S.A. 21-4301, the legislature has sounded the death knell on defendant’s due process arguments.
Defendant contends K.S.A. 21-4301 constitutes an invalid exercise of police power in violation of the First and Fourteenth Amendments. He argues that the State’s power to regulate obscenity has been limited to situations involving children or unwilling adults. This argument is based on the United States Supreme Court’s holding that the states cannot interfere with the private possession of obscenity (Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 [1969]), and a statement by the court “that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” Miller v. California, 413 U.S. at 18-19. By reading the holding in Stanley with the statement in Miller, the defendant suggests that the states have no legitimate interest in regulating the dissemination of obscenity between consenting adults.
This theory has been specifically rejected by the United States Supreme Court:
“We categorically disapprove the theory . . . that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. . . . Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults [citations omitted], this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. [Citations omitted.]” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57, 37 L.Ed.2d 446, 93 S.Ct. 2528 (1973).
See also United States v. Orito, 413 U.S. 139, 37 L.Ed.2d 513, 93 S.Ct. 2674 (1973); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 37 L.Ed.2d 500, 93 S.Ct. 2665 (1973); Kaplan v. California, 413 U.S. 115, 37 L.Ed.2d 492, 93 S.Ct. 2680 (1973).
As his final issue, defendant contends his prosecution pursuant to K.S.A. 21-4301 violated public policy. This statute, according to the defendant, codifies the public policy “that certain types of pornography should be made illegal.” The thrust of defendant’s argument is that the public policy the statute codifies is violated when an economically desperate employee is prosecuted while the profit-making owners, the “real” violators, are not.
We are not at liberty to declare a statute invalid merely because it may be unfair, or may, by its application, create a hardship. See McGowan v. Maryland, 366 U.S. at 425-26; State ex rel. Schneider v. Liggett, 223 Kan. at 619-20; McAllister v. Fair, 72 Kan. 533, 84 Pac. 112 (1906). The only test of the validity of an act regularly passed by a state legislature is whether it directly violates any of the express or implied restrictions of the state or federal constitutions. Westover v. Schaffer, 205 Kan. 62, 65,468 P.2d 251 (1970); Schaake v. Dolley, 85 Kan. 598, 602, 118 Pac. 80 (1911). The prosecution of one participant in a crime, while another may go free, does not make the underlying criminal statute invalid or its application in that instance a violation of public policy. K.S.A. 21-3205(3). In fact, defendant’s prosecution advances the public policy he has defined.
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Rees, J.:
In this workers’ compensation case, respondents State of Kansas, Kansas Neurological Institute (KNI) and the State Self-Insurance Fund appeal from a district court judgment awarding claimant DeElla Alice Johnson compensation for a 95% work disability and refusing to allocate any of the award against the Workers’ Compensation Fund for payment. We affirm.
Respondents first attack the allocation of the award, asserting the district court erred in adopting the director’s decision that KNI did not prove it knowingly retained a handicapped employee.
K.S.A. 1985 Supp. 44-567(a) operates to relieve wholly or partially the liability of the employer for second injury claims when the “employer . . . knowingly . . . retains a handicapped employee.” The burden of proof, however, is on the employer:
“In order to be relieved of liability under this section, the employer must prove . . . that the employer retained the handicapped employee in employment after acquiring . . . knowledge [of the preexisting impairment].” K.S.A. 1985 Supp. 44-567(b).
This section continues that “[t]he employer s knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof with regard thereto.” K.S.A. 1985 Supp. 44-567(b).
These provisions have been held to require liberal construction in order to facilitate the legislative intent of encouraging the employment of handicapped workers (not of solely aiding employers, as KNI contends). Leiker v. Manor House, Inc., 203 Kan. 906, 913, 457 P.2d 107 (1969); Nuttle v. Certain Teed Corp., 10 Kan. App. 2d 225, 227, 696 P.2d 415 (1985). However, the question whether a particular employer has knowledge of the employee’s preexisting impairment is a factual question, to be determined on a case-by-case basis. Ramirez v. Rockwell Int'l, 10 Kan. App. 2d 403, 404, 701 P.2d 336 (1985); Hines v. Taco Tico, 9 Kan. App. 2d 633, 634, 683 P.2d 1295 (1984). The finding against an employer on the issue is a negative one, to the effect that the employer did not sustain the requisite burden of proof cast upon it.- Absent arbitrary disregard of undisputed evidence, the finding of the trial judge cannot be disturbed on appeal. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, 33, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979).
The reason a problem arises in this case is because the only evidence of knowing retention adduced was the testimony of the director of the Division of General Services for the State of Kansas, one George Welch, the self-described “handler” of the State Self-Insurance Fund. He testified in sum that he had approved a lump sum settlement for a back injury suffered by claimant in 1974, knowing that claimant’s disability would eventually manifest itself. The district court adopted the director’s finding that this testimony showed knowledge of a handicap, and imputed Welch’s knowledge to KNI. The district court refused to assess any part of the award against the Workers’ Compensation Fund, however, since KNI had not shown “reservation with respect to hiring or retaining the claimant.”
We need not reach consideration of what respondents here consider to be a troublesome application of the reservation concept. Assuming Welch’s testimony is sufficient to show knowledge, as we must on review, we nonetheless must disagree with the respondents’ legal conclusion that that knowledge must be imputed to KNI. Respondents do not cite, nor are we aware of, any case in which knowledge of a workers’ compensation insurer’s adjuster has been imputed to one of the insurer’s insured employers. Although several Kansas workers’ compensation cases discuss imputation of knowledge in various contexts, the bottom line was the proof or lack thereof of an agency relationship. Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, 615, 609 P.2d 687, rev. denied 228 Kan. 807 (1980) (knowledge of supervisor imputed to employer); Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 606 P.2d 484, rev. denied 227 Kan. 927 (1980) (knowledge of president imputed to employer corporation); Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29 (knowledge of orthopedic surgeon to whom employer referred injured employees not imputed).
In our view, neither these cases nor the evidence before us mandates the conclusion that the director of the State Self-Insurance Fund was an agent of KNI for the purpose of imputing knowledge to KNI. Furthermore, the rationale of relieving the employer of liability is the presumed impact of the impairment on the hiring and retaining policy of the employer. The State Self-Insurance Fund, on the other hand, processes the workers’ compensation claims for almost all of the myriad and state-wide state agencies in Kansas. We fail to see how the goal of encouraging employment of handicapped workers would be facilitated if the recollection of one man in Topeka that he processed a claim is sufficient to show “knowing retention” on the part of a given state agency. And finally, despite respondents’ remonstrations to the contrary, the evidence necessary in any one case for the employer to meet its burden of proof to show knowing retention is neither onerous nor overwhelming.
The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. State v. Littlejohn, 236 Kan. 497, 503, 694 P.2d 403 (1984). We therefore hold that the district court did not err in refusing to relieve respondents of responsibility for payment of benefits for claimant’s second injury.
As their final issue, respondents dispute the finding of a 95% work disability. We have reviewed the record on appeal, in- eluding the medical testimony and claimant’s graphic and largely uncontroverted testimony concerning her strenuous job requirements. Suffice it to say the 95% disability rating is supported by substantial competent evidence and cannot thus be disturbed. See Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 335, 678 P.2d 178(1984).
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Briscoe, J.:
The plaintiffs, Carl and Vicki Smith, appeal from the trial court’s order approving the assessment of fees and expenses incurred by four medical malpractice screening panels. Don C. Krueger, an Emporia attorney who acted as chairperson for each of the panels, appears as appellee. One defendant, Richard L. Frazier, M.D., also appears as appellee and cross-appellant.
Both the plaintiffs and the defendant/cross-appellant contend the award is contrary to Supreme Court Rule 142, 235 Kan. cxi, which limits screening panel members’ fees to $35 per day. Plaintiffs also contend the fees and expenses awarded were excessive and unsupported by the evidence.
Plaintiffs filed a request for a medical malpractice screening panel pursuant to K.S.A. 65-4901. Their request was premised on the alleged negligence of five physicians, a hospital, and a mental health center. Four separate panels were convened, each consisting of Mr. Krueger as chairperson and three physicians specializing in the field of medicine reviewed. In accordance with K.S.A. 65-4901, the court selected the chairperson, the plaintiffs selected a physician for each panel, and the defendant or defendants whose negligence was at issue selected a physician for that specific panel, with the parties agreeing on the selection of an independent physician for each panel.
When all four panels completed their review, the matter came before the trial court for approval. The court accepted the opinions of the screening panels and also, over objection of all counsel for the parties, approved all fees and expenses requested by the panel members. Mr. Krueger was allowed a $3,450 fee for 46 hours of work at $75 per hour plus $848.30 in secretarial and other expenses. Mr. Krueger charged $30 per hour for his secretary’s time. The twelve physicians serving on the screening panels were allowed anywhere from $200 to $952. These charges were not itemized.
In addition to approving all fees and expenses requested, the trial court divided the physicians’ fees and expenses according to which party had selected the physician, with plaintiffs paying the entire cost of the physician they selected and one-half the costs associated with the independent physician. The doctor being reviewed was assessed the costs of the physician he selected and one-half the cost of the independent physician. Mr. Krueger’s fees and other expenses were equally divided. No fees and expenses were assessed against either Newman Memorial County Hospital or the Mental Health Center of East Central Kansas.
The pertinent provision of Supreme Court Rule 142 provides:
“(c) Compensation and Expenses.
“(1) Each member of the screening panel shall be allowed a fee of $35 for each day in attendance at a meeting of the screening panel, together with mileage and actual expenses.
“(2) Expenses may be allowed for secretarial services required by the screening panel.
“(3) Each party shall advance to the chairperson the sum of $100 when the screening panel is convened to be applied to the compensation and expenses of the panel members. Prior to the handing down of the panel’s opinion, the final compensation and expenses shall be determined by the chairperson and paid by the parties equally.”
The trial court refused to limit screening panel members’ fees to $35 per day based on its conclusion that this was an exceptional case. The trial court reasoned that it had discretion to deviate from the rule and could award reasonable fees. This was an abuse of discretion as the rule clearly does not give the trial court any authority to deviate from the $35 per day fee.
We reject the several arguments made in favor of allowing the higher fees. First, we find no basis for the contention that the Supreme Court rule and related statutes are ambiguous. Second, the suggestion that the rule as written makes assembly of a panel impossible cannot alter the presumption that the rule means what it so clearly says. Finally, the fact that other trial courts have previously deviated from the rule does not provide this court with a basis for setting aside the rule as written.
Plaintiffs next contend that fees and expenses awarded were excessive and unsupported by evidence. As we have stated, since the fees and expenses allowed were beyond that permitted by Supreme Court Rule 142, they must be set aside. As to expenses allowed, the Supreme Court rule provides no guidance. Logically, the trial court should require some documentation of these expenses and limit recovery to a reasonable amount.
As a final issue, we address Mr. Krueger’s contention that plaintiffs should be barred from raising the foregoing issues under a theory of equitable estoppel. Mr. Krueger contends that plaintiffs should be estopped in appealing the trial court’s award in that they failed to object to his requested fee until after he had rendered his services. Mr. Krueger notes that he informed all parties of his charges by his January 24, 1985, letter and suggests that he directed them to file any objections with the court before February 1, 1985. According to Mr. Krueger, since no objections were filed with the court, plaintiffs’ objections at this late date should be deemed waived. We are not persuaded by this argument.
First, while Mr. Krueger did inform counsel of his requested fee, his letter did not direct them to file objections with the court. In addition, Mr. Krueger’s requested fee had not been approved by court order on January 24, 1985, as his letter indicated. Moreover, two attorneys in the case actually wrote Mr. Krueger and objected to his requested fee. These objections were made several days after Mr. Krueger’s self-imposed deadline had passed, but before Mr. Krueger rendered any additional services. Again, it should be noted that the trial court never entered an order prior to final disposition approving Mr. Krueger’s fee, nor did the trial court impose any deadline for objecting to Mr. Krueger’s request. Finally, it does not appear that Mr. Krueger made any formal attempt to clarify his rate of compensation, despite the fact two attorneys in the case had raised objections.
Second, equitable estoppel cannot be employed to circumvent a Supreme Court rule. Mr. Krueger was aware that Rule 142 limited compensation to $35 per day and he cannot avoid the rule simply by arguing the parties did not bring it to the trial court’s attention initially.
Accordingly, we reverse and remand with the following directions: First, on remand the trial court should treat the four separate panels individually. Mr. Krueger should be compensated as the chairperson of each panel. Second, the fees and expenses for each individual panel should be totalled and this amount should be divided equally between the plaintiffs and the physician or physicians being reviewed. The trial court should not base its assessment on which party selected the particular panel member. Third, the trial court should assess any costs listed in K.S.A. 60-2003 against plaintiffs pursuant to K.S.A. 65-4907. Finally, the trial court was correct in not assessing any costs against Newman Memorial County Hospital or the Mental Health Center of East Central Kansas.
Reversed and remanded with directions. Mr. Krueger’s request for attorney fees and expenses resulting from this appeal is denied. | [
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Rees, J.:
Appellant Workers’ Compensation Fund appeals from an order of the district court overruling the Fund’s motion to dismiss on the ground respondent Glass King Manufacturing, Inc., failed to preserve the issue of Fund liability in respondent’s settlement with claimant Gary L. McArthur. We dismiss.
McArthur was injured on September 18, 1981, while in the employ of Glass King. McArthur filed a claim for compensation, and Glass King and its insurance carrier, Aetna Life & Casualty, properly impleaded the Workers’ Compensation Fund. McArthur and Glass King then settled the claim at a friendly settlement hearing held before the Administrative Law Judge on December 23, 1983. The Fund appeared at that hearing.
On April 3, 1984, a hearing was held before the ALJ to determine the issue of Fund liability to Glass King and Aetna. At that hearing, the Fund made an oral motion to dismiss the case on the ground Glass King had not reserved the Fund liability issue in its settlement with McArthur. Specifically, the Fund contended the parties at settlement had stipulated that the only undecided issues were the nature and extent of disability and amount of compensation, and that the settlement sheet prepared thereafter did not contain a reservation of the Fund liability issue. The ALJ denied the Fund’s motion, finding in part, “it appears that all parties were aware [that issues were being reserved against the Fund] but did not say it.”
The Fund appealed the ALJ’s denial of its motion to the director, who agreed with the ALJ. On appeal from that decision, the district court found “the Director’s Order . . . affirming the Administrative Law Judge in all respects should be affirmed.” The district court made no other findings. The Fund then filed a timely notice of appeal.
At the threshold, the record reveals the posture of this case to be the Fund has appealed a district court order overruling its motion to dismiss. Since in a non-workers’ compensation case an order overruling a motion to dismiss is not a final and appealable order (Oertel v. Phillips, 197 Kan. 113, 115, 415 P.2d 223 [1966]), it behooves us to consider whether the same rule obtains in workers’ compensation cases. Neither party has raised the issue on appeal, but it is our duty to raise the question of jurisdiction on our own motion. In re K-Mart Corp., 232 Kan. 387, 389, 654 P.2d 470 (1982).
K.S.A. 1984 Supp. 44-556 sets forth the procedure for appeals in workers’ compensation cases. Subsection (a) provides that any party may appeal from any and all decisions, findings, awards or rulings of the director to the district court. Subsection (b) provides that on any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. Subsection (c) in turn provides that any party to the proceedings may appeal from any findings or order of the district court to the appellate courts on questions of law. Subsection (c) further provides that “[s]uch appeal shall be taken and perfected by the filing of a written notice of appeal . . . within 30 days after the filing of the entry of judgment as provided in K.S.A. 60-258 . . . .” (Emphasis added.)
K.S.A. 60-258, to which K.S.A. 44-556(c) refers, establishes when a judgment becomes effective and the form necessary for the judgment to become effective. It further adds that “[e]ntry of judgments shall be subject to the provisions of section 60-254(b).” K.S.A. 60-254(b) establishes the procedure for judgment upon multiple claims, and K.S.A. 60-254(a) defines judgments as “the final determination of the rights of the parties in an action.”
We find no workers’ compensation cases on point. It strikes us, however, that this case is analogous to an attempt to appeal from the denial of a summary judgment motion. It is unquestioned that not one of the forums below has rendered an adjudication on the question of the Fund’s liability; therefore, there exists no “entry of judgment” or “final order” upon which to base the Fund’s appeal to this court. In addition, we observe that K.S.A. 1984 Supp. 44-556(b) purports to accord the district court jurisdiction only to grant or refuse compensation, or to increase or diminish the award. That language suggests that the statutory scheme does not contemplate an appeal to this court from a non-award ruling such as involved in the instant case. See Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 414, 416 P.2d 771 (1966).
We accordingly hold this court lacks jurisdiction to consider the issue of the denial of the Fund’s motion to dismiss because the district court order appealed from is not a final order. To hold otherwise would be to sanction piecemeal appeals in derogation of the statutory scheme conferring appellate power upon this court. See, e.g., Smith v. Morris, 2 Kan. App. 2d 59, 574 P.2d 568 (1978); Childress v. Childress Painting Co., 3 Kan. App. 2d 135, 140-42, 590 P.2d 1093 (Rees, J., dissenting), rev’d on other grounds 226 Kan. 251 (1979).
Dismissed. | [
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Flood, J.:
This appeal is a sequel to Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App. 2d 648, 688 P.2d 270 (1984).
Charles Swanson was a tenured teacher with Unified School District No. 241. For the 1983-84 school year his contract provided that he would teach American History, Drivers Education, and Physical Education, and perform supplemental duties as head boys’ basketball coach, track coach, and supervise laundry duty. On May 11, 1984, Swanson wrote a letter expressing his intent to resign as basketball coach. In August, U.S.D. No. 241 reissued a contract dated July 16, 1984, to Swanson with the basketball position eliminated.
In September 1984, the superintendent posted notices at the school seeking applicants for the basketball coach position. No applications were received. Thereafter, he assigned the position to Swanson. When Swanson declined the assignment, U.S.D. No. 241 brought a declaratory judgment action. The district court relied on a provision in the negotiated agreement between U.S.D. No. 241 and the Professional Employees Association which provided for assignment of supplemental duties when these duties could not be filled voluntarily.
The district court entered declaratory judgment for the school district, finding the teacher’s refusal to accept the extra duty amounted to insubordination and was a breach of contract.
In Swager, 9 Kan. App. 2d 648, this court held that a teacher cannot be required to accept supplemental duties as part of his primary teaching contract and may unilaterally terminate or nonrenew his supplemental contract. However, this court did not have to consider a provision of a negotiated agreement. In this case, the applicable negotiated agreement provides:
“Vacant extra duty positions shall be first filled by teachers willing to accept the position. The balance . . . shall be assigned by the administration. Extra duty assignments shall be made to share the extra duty assignments as equitably as possible.”
Nor did this court in Swager address the 1980 amendments to K.S.A. 72-5412a and K.S.A. 72-5413. Prior to 1980, K.S.A. 72-5412a (Weeks) provided that none of the provisions of Article 54 of Chapter 72 of the Kansas Statutes Annotated applied to supplemental contracts. The Kansas Supreme Court has held that such contracts were not subjects for professional negotiation. Chee-Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979). K.S.A. 72-5412a, as amended, now provides that only the provisions of Article 54 relating to due process and continuing contract law remain non-negotiable as to supplemental contracts. K.S.A. 72-5413(1), as amended, now provides that pay for a supplemental contract is mandatorily negotiable. Arguably, supplemental contract duty assignments were subjects for permissible negotiation by U.S.D. No. 241.
However, K.S.A. 72-5413(1)(3) also provides in part:
“Except as otherwise expressly provided in this subsection, the fact that any matter may be the subject of a statute or the constitution of this state does not preclude negotiation thereon so long as the negotiation proposal would not prevent the fulfillment of the statutory or constitutional objective.” (Emphasis supplied.)
In Swager, 9 Kan. App. 2d 648, Syl. ¶ 2, this court held:
“The provisions of K.S.A. 72-5412a are mandatory, and require that the duties there enumerated, as well as other similar and related activities, be performed pursuant to supplemental contracts. This mandatory language is a clear expression of a legislative intent to prohibit school districts from making supplemental duties, such as coaching, part of a teacher’s primary contract. Thus, a teacher cannot be required to accept such duties as part of the primary contract of employment.”
This court reached this conclusion partly because of unfairness or lack of mutuality, saying:
“Clearly, the school board can unilaterally terminate or nonrenew a supplemental contract. It would appear to us inconsistent, not to mention unfair, to deny the teacher the right to reject that which the school district has the right to withhold.” 9 Kan. App. 2d at 656.
This court also noted that during the 1984 session of the Kansas Legislature, a bill permitting termination of a primary contract for refusal to accept a supplemental contract was defeated in the Senate by a vote of 36-4. 9 Kan. App. 2d at 654.
The statutory scheme and legislative intent as interpreted by this court in Swager is that a teacher may not have his primary contract terminated for refusal to accept a supplemental contract. Provisions of a negotiated agreement which conflict with a statutory scheme are void and unenforceable. Ottawa Education Ass'n v. U.S.D. No. 290, 233 Kan. 865, Syl. ¶ 2, 666 P.2d 680 (1983); K.S.A. 72-5413(1)(3).
The provision of the negotiated agreement in this case conflicts with the statutory scheme as it relates to unilateral assignment of supplemental contract duties. It is void and cannot be the basis for a finding of breach of contract. The district court judgment is reversed with directions to enter declaratory judgment for the teacher in accordance with this opinion.
Reversed and remanded with directions. | [
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White, J.;
Hartford Insurance Company appeals an order of the district court granting Overland Body Tow, Inc., a lien for storage and towing charges incurred on a motor vehicle owned by Hartford.
On September 23, 1982, an automobile was stolen from a dealer’s lot in New Mexico. The dealer’s insurance company, Hartford (appellant), paid the dealer for the car and received title to it.
On December 27, 1982, a Leawood, Kansas, police officer observed the stolen automobile make an illegal U-turn on one of Leawood’s streets. After being notified there was an outstanding warrant in Louisiana for the driver on fraudulent checks, the driver was arrested. Since another driver was not available, the officer ordered the car towed. The appellee, Overland Body Tow, Inc., towed the car to its tow lot. Neither the officer nor the appellee were aware that the car was stolen.
The loss of the car had been reported to the local police department in New Mexico, and also to the National Auto Theft Bureau, a nationwide organization set up to assist in locating and recovering stolen automobiles. The record suggests the vehicle identification number may have been incorrectly reported. Appellee tried to determine ownership of the vehicle, but was unsuccessful.
Upon discovering the owner in 1984, appellee immediately notified appellant it had the car in storage, and later sent appellant a notice stating that the car would be sold at auction if it failed to pay the towing and storage charges.
Appellant brought action in replevin for the car against the appellee, who had towed and stored the vehicle at the request of a police officer. The trial court held that K.S.A. 58-201 gave appellee a lien upon the car in the amount of $2,667.00 (a towing fee of $27.00 and the storage cost of $4.00 per day for 660 days).
The issue in this case is whether a lien may be had under K.S.A. 58-201 for the towing and storage of a motor vehicle when a police officer requests the removal of it from the streets without the owner’s request or consent. We believe it cannot. K.S.A. 58-201 provides, in relevant part:
“Whenever any person at, or with the owners request or consent shall perform work, make repairs or improvements on any goods, personal property, chattels, horses, mules, wagons, buggies, automobiles, trucks, trailers, locomotives, railroad rolling stock, barges, aircraft, equipment of all kinds, including but not limited to construction equipment, vehicles of all kinds, and farm implements of whatsoever kind, a first and prior lien on said personal property is hereby created in favor of such person performing such work or making such repairs or improvements and said lien shall amount to the full amount and reasonable value of the services performed, and shall include the reasonable value of all material used in the performance of such services.” (Emphasis added.)
In the present case, the owner, appellant, did not request or consent to the car being towed and stored. Absent a request or consent, K.S.A. 58-201 does not give rise to an artisan’s lien. See United States Fidelity & Guaranty Co. v. Marshall, 4 Kan. App. 2d 9, 10, 601 P.2d 1169 (1979). See also Olson v. Orr, 94 Kan. 38, 40, 145 Pac. 900 (1915).
Appellee contends that K.S.A. 8-1570 acts in conjunction with K.S.A. 58-201 and thereby allows a police officer to give consent on behalf of the owner. K.S.A. 8-1570 provides, in relevant part:
“(c) Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:
“(2) The person or persons in charge of such vehicle are unable to provide for its custody or removal; or
“(3) When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a judge of the district court without unnecessary delay.”
“A primary rule for the construction of a statute is to find the legislative intent from the 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. [Citations omitted.]” Sampson v. Rumsey, 1 Kan. App. 2d 191, 193, 563 P.2d 506 (1977).
The plain language of K.S.A. 58-201 specifically requires an owner’s consent or request that work or improvements should be undertaken. Had the legislature intended that a third party be authorized to give consent under K.S.A. 58-201, it could have easily so stated. Neither K.S.A. 58-201 nor K.S.A. 8-1102 make any reference to each other nor is there a specific statute by which an owner is deemed to have given consent for purposes of K.S.A. 58-201, as compared to K.S.A. 1985 Supp. 8-1001, the implied consent statute relating to the revocation of a driver’s license for refusing to submit to a blood alcohol test.
At least two states have held that police officers do not act as agents of the owner nor do they otherwise have authority to hold the owner responsible for towing and storage charges. See Thompson v. Danvir Corporation, 264 A.2d 361, 363 (Del. Super. 1970); Stephens v. Millirons Garage, Inc., 109 Ga. App. 832, 833-34, 137 S.E.2d 563 (1964). While these cases are not controlling, they are persuasive.
An Oklahoma Supreme Court opinion presents a similar factual pattern in a different statutory context. In Moral Insurance Company v. Cooksey, 285 P.2d 223 (Okla. 1955), a car, which was insured by Moral Insurance Company (Moral), was stolen in Sulphur, Oklahoma. The car was driven to Ada, Oklahoma, where it was subsequently abandoned. The Ada police found the car and directed Cooksey to tow the car and store it in his garage. Approximately five months later, Moral located the car in the Cooksey garage and demanded possession. Cooksey refused to relinquish possession of the car until Moral paid Cooksey’s claim for towing and storage charges. Moral claimed that Cooksey did not possess a lien on the vehicle.
In holding that Cooksey held a lien on the car, the Oklahoma court based its decision on an Oklahoma lien statute which expressly provided for a lien for services rendered in the protection or safekeeping of articles.
“In statute, 42 O.S.1951 § 6, it is stated:
‘A lien is created:
1. By contract of the parties; or,
2. By operation of law.’
42 O.S.1951 § 91 provides:
‘Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof by labor or skill employed for the protection, improvement, safekeeping or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service.’ ” (Emphasis added.) Moral Insurance Company v. Cooksey, 285 P.2d at 225-26.
The Oklahoma court also noted that, under its statutes, Cooksey became a bailee for hire and was entitled to compensation for expenses incurred in the preservation of the car.
“In 15 O.S.1951 § 511, 514, it is provided:
‘One who finds a thing lost is not bound to take charge of it; but if he does so, he is thenceforward a bailee for the owner, with the rights and obligations of a bailee for hire.
‘The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it.’ ” Moral Insurance Company v. Cooksey, 285 P.2d at 226.
In the present case, however, the Kansas lien statute, K.S.A. 58-201, does not provide for a lien for “protecting,” “safekeeping,” or “storing” articles. Had the Kansas legislature intended a lien for such service, it could have easily so provided.
It should be noted that a public agency may cause to be removed a vehicle which has been abandoned on real property and that any person removing such vehicle from the real property at the request of a public agency shall acquire a possessory lien on the vehicle for costs incurred in towing and storage. See K.S.A. 8-1102. However, the vehicle in this case should not be considered abandoned for purposes of K.S.A. 8-1102. Rather, as noted, the vehicle was towed pursuant to K.S.A. 8-1570, after the driver had been arrested.
With respect to a bailee’s lien, as noted, K.S.A. 58-208 does not create a lien, but rather, merely provides a remedy for those who have already acquired a lien.
“A constructive bailee or bailee by operation of law, who has come into possession of personal property of another, ordinarily receives nothing from the owner of the property, has no right to recover from the owner for what he does in caring for the property, and is, in effect, an uncompensated or gratuitous bailee.” (Emphasis added.) 8 Am. Jur. 2d, Bailments § 25, p. 757.
“[Ejxcept as to . . . common carriers, innkeepers, warehouse-men, and [owners of wharves], there is no lien for simply keeping and taking caie of property unless created by contract of the parties or by statute.” 8 Am. Jur. 2d, Bailments § 243, p. 977.
Appellee’s remedy under common law faces the same problems as its remedy under the statutory lien — there was no agreement between appellant and appellee. As it is with a statutory lien, a common-law lien can only be created by agreement with the property owner. Alter v. Johnson, 127 Kan. 443, 445, 273 Pac. 474 (1929); 8 Am. Jur. 2d, Bailments § 243.
“As was also the rule at common law, it is firmly established that a lien can be created only by a contract with an owner of property or someone authorized to act on his behalf, or by a statute or other fixed rule of law; and in either case, the effect is the same." 51 Am. Jur. 2d, Liens § 6, p. 147.
As we find that there was no request or consent by appellant for a statutory lien, we also find the facts show that there was no relationship between the parties to indicate any agreement between them for a common-law lien.
We conclude that Overland Body Tow, Inc., did not possess a lien on the car pursuant to K.S.A. 58-201 or under common-law principles. An owner of a motor vehicle cannot be held responsible for charges under K.S.A. 58-201 when a police officer, without consent of the owner, requests a vehicle to be towed and stored.
Having found that Overland Body Tow does not have a lien, we need not address appellant’s argument that 58-201 is unconstitutional. The judgment of the trial court is reversed. | [
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Briscoe, J.:
This is a direct appeal by the defendant, Darrell D. Hull, from his conviction of driving while under the influence of drugs in violation of Wichita City Ordinance § 11.38.150(b). Defendant specifically raises two issues and discusses a third: (1) Whether intent is a necessary element of driving while under the influence of drugs or alcohol; (2) whether he can be convicted of driving while under the influence when his conduct was involuntary; and (3) whether there was sufficient evidence to support defendant’s conviction where no expert testimony was introduced to show defendant’s taking a sleeping pill resulted in his intoxication. We affirm.
At trial, defendant testified that he left work at approximately 6:45 p.m. on September 27, 1984. He stated he was ill that day and was taking medicine as prescribed by his physician. According to defendant, he took a sleeping pill along with an antibiotic just prior to leaving work. There was no warning label on the medicine bottle to indicate it was unsafe to drive after taking the sleeping pill. Defendant testified his physician never warned him about driving while using the medication. Defendant stated he was not aware that one pill he had taken was a sleeping pill, although the label on the medicine bottle in structed defendant to take one a day in the early evening for insomnia.
Defendant testified he became sleepy as he drove and he rolled down the car window, shook his head, and probably played the radio. He testified he had taken the same medication and driven on prior occasions without incident. At the intersection of Lincoln and Oliver, defendant’s vehicle rear-ended a vehicle driven by Nora Grissom. Neither vehicle was damaged nor was either driver injured.
Grissom testified she first noticed defendant’s car a couple of blocks north of the intersection of Oliver and Kellogg. Defendant’s car was two car lengths behind her car. According to Grissom, defendant was speeding up and slowing down, and weaving in and out of the southbound lane. As her vehicle approached the intersection, she was afraid defendant would not stop before his vehicle collided with hers. The light changed to green, however, and Grissom and defendant proceeded. When Grissom reached the intersection of Oliver and Lincoln, the traffic signal was red. Her car was stopped behind four other cars when defendant’s car collided with hers. Grissom testified she got out of her car and approached defendant, who remained in his vehicle. She indicated defendant did not respond to her questions and his eyes did not seem to be focusing. Grissom then walked to an adjacent convenience store and called the police. The police arrived and Grissom reported her version of the accident.
Officer Susan Brewer testified that as she arrived on the scene the police dispatcher was broadcasting a report of a drunk driver in a light blue car bearing a Norton County “H” tag. The license plate on defendant’s blue car was Norton County “H.” While Officer Brewer listened to her radio, defendant stepped from his vehicle and stumbled and staggered into the northbound lane of traffic. Several northbound vehicles had to brake to avoid him. Officer Brewer removed defendant from danger and then spoke with Grissom. After hearing Grissom’s version of the accident, Officer Brewer permitted her to leave. The officer then questioned defendant about the accident. At that time, defendant told Officer Brewer he had taken a sleeping pill. Defendant told the officer the medicine bottles were in his car. Officer Brewer examined four separate medications and asked defendant to indicate what he had taken. Defendant indicated he had taken one pill called Chloromycitin, an antibiotic, and one pill labeled Halcion, a sleeping pill.
Officer Brewer advised defendant of his rights. She then asked him when he had taken the sleeping pill and he informed her that he took it at 6:45 p.m. Officer Brewer then asked defendant to perform some field sobriety tests. Two balance tests were administered and Officer Brewer testified that defendant failed both. The officer then arrested defendant and he was taken to the police station where defendant consented to a blood alcohol test. The test showed no trace of alcohol. No further testing was requested or performed.
The ordinance under which defendant was convicted, Wichita City Ordinance § 11.38.140(b), provided:
“No person shall operate any vehicle within the city if the person is a habitual user of or under the influence of any narcotic, hypnotic, somnifacient or stimulating drug or is under the influence of any other drug to a degree which renders such person incapable of safely driving a vehicle. The fact that any person charged with a violation of this subsection is or has been entitled to use the drug under the laws of the State of Kansas shall not constitute a defense against any charge of violating this subsection.”
The language of this ordinance is taken from the 1984 version of K.S.A. 8-1567 which permitted cities to enforce the prohibition against drunk driving by substituting a city ordinance for the statute. Accordingly, we look to the legislative intent behind K.S.A. 1984 Supp. 8-1567 in order to interpret this Wichita city ordinance. We note for historic purposes only that both the statute and the ordinance have been amended subsequent to defendant’s conviction.
On appeal, defendant maintains that his conviction for driving under the influence of drugs was improper because the city was not required to prove intent. The city, on the other hand, argues that defendant’s conviction was proper because the ordinance prohibiting driving under the influence is a malum, prohibitum, or absolute liability offense. An absolute liability offense, unlike most other crimes, does not require any criminal intent. The only proof required to convict an individual of an absolute liability offense is that the individual engaged in the prohibited conduct. According to the Kansas Supreme Court:
“The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the courts to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt.” State v. Merrifield, 180 Kan. 267, 269, 303 P.2d 155 (1956).
See State v. Cruitt, 200 Kan. 372, 375, 436 P.2d 870 (1968). The constitutionality of absolute liability offenses has been upheld by the United States Supreme Court. Morissette v. United States, 342 U.S. 246, 96 L. Ed. 2d 288, 72 S. Ct. 240 (1956).
In order to determine whether driving while under the influence is an absolute liability offense in Kansas, the city directs the court’s attention to K.S.A. 21-3204, which reads:
“A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”
The difficulty in the present case results from the fact that neither K.S.A. 1984 Supp. 8-1567 nor Wichita City Ordinance § 11.38.150 expressly indicates that driving while under the influence, a traffic offense, is an absolute liability offense. The city maintains that by omitting any reference to intent in its definition there is a clear indication that driving while under the influence is an absolute liability offense. This argument is bolstered by the fact this court has, on prior occasions, based a determination of absolute liability on the legislature’s omission of intent as an element of the proscribed conduct. City of Overland Park v. Estell, 8 Kan. App. 2d 182, 187, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983); State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977). In these cases, this court determined that speeding and leaving the scene of an accident were absolute liability offenses. According to the city’s argument in the present case, the omission of intent language in K.S.A. 1984 Supp. 8-1567 when coupled with the change in the public’s attitude in the early 1980’s toward driving while under the influence provides an adequate basis for concluding that driving while under the influence was intended by the legislature to be an absolute liability offense. See Gottlieb and Zinn, An Analysis of Recent Changes in Kansas Drunk Driving Laws, 3 Kan. Crim. Proc. Rev. 59 (1986), regarding public concern and legislative intent.
The city’s argument is also supported by decisions from other jurisdictions. The majority of jurisdictions addressing this issue has concluded that driving while under the influence is an absolute liability offense. State v. Williams, 144 Ariz. 487, 698 P.2d 732 (1985); People v. Rostad, 669 P.2d 126 (Colo. 1983); Bodoh v. District of Columbia Bur. of Motor, 377 A.2d 1135 (D.C. 1977); State v. Goding, 126 N.H. 50, 489 A.2d 579 (1985); State v. Pistole, 16 Ohio App. 3d 386, 476 N.E.2d 365 (1984); State v. Maguire, 78 Or. App. 459, 717 P.2d 226 (1986). Courts in these jurisdictions have relied on the same analysis advanced by the city in the present case. Massachusetts, on the other hand, has concluded that driving while under the influence is not an absolute liability offense. According to the Appeals Court of Massachusetts, courts should be reluctant to impose absolute liability on offenses involving severe penalties where there is no express legislative indication to do so. Commonwealth v. Wallace, 14 Mass. App. 358, 439 N.E.2d 848 (1982).
We conclude by its omission of intent as an element in K.S.A. 1984 Supp. 8-1567 our legislature intended driving while under the influence to be an absolute liability offense. Therefore, we reject defendant’s complaints that the city failed to prove intent. Although defendant also asserted in his brief that the trial court erred in failing to instruct the jury on intent, defendant’s counsel specifically stated at oral argument that this was not an issue on appeal.
Defendant next contends that he cannot be convicted of driving while under the influence when his conduct was involuntary. According to defendant, the purpose of drunk driving legislation has been to punish voluntary intoxication, and since he acted involuntarily he should not be punished. Defendant’s argument is without merit because defendant was not involuntarily intoxicated.
First, under Kansas law involuntary intoxication must result from an irresistible force. State v. Seely, 212 Kan. 195, 202, 510 P.2d 115 (1973). An irresistible force “means that intoxicants or drugs were forcibly, unwittingly or unknowingly ingested by or administered to the defendant.” State v. Palacio, 221 Kan. 394, 396, 559 P.2d 804 (1977). In the present case defendant contends he was involuntarily intoxicated because: (1) there was no warning label on the prescription bottle which warned against operating a motor vehicle after taking the drug for insomnia; (2) the physician prescribing the medication did not warn him against driving; and (3) he had driven after taking the medication on prior occasions without incident. These facts, however, are insufficient to establish an involuntary intoxication defense where the evidence showed defendant was aware that the medication he was taking was for insomnia. A reasonable person aware of this fact should realize the inherent danger of driving while under the influence of a drug prescribed for this purpose. In addition, defendant failed to pull over and stop his vehicle even after he became drowsy. Instead, defendant rolled down his car window, shook his head in order to stay awake, and continued to drive. These facts demonstrate defendant voluntarily drove while intoxicated.
As a practical matter, the broadening of the concept of involuntary intoxication to cover the facts presented in this case would seriously compromise the viability of our drunk driving statutes. It is unlikely that most individuals convicted of driving while under the influence consciously decide to drive while intoxicated. More likely, such individuals voluntarily drink, fail to appreciate their level of intoxication, and then voluntarily drive. These individuals, like defendant, could argue that they should not be punished because their conduct was involuntary since they were unaware of their intoxication.
As his final issue, defendant contends there was insufficient evidence to support his conviction because expert testimony was not introduced to show his taking a sleeping pill resulted in intoxication. When considering the sufficiency of evidence to sustain a conviction, an appellate court will consider only that evidence in favor of the verdict. As long as the essential elements of the charge are supported by substantial competent evidence, the conviction will stand. Substantial competent evidence is defined as that evidence sufficient to convince a rational person of guilt beyond a reasonable doubt. State v. Pham, 234 Kan. 649, 667-68, 675 P.2d 848 (1984).
In order to convict defendant, the city was required to prove defendant drove while under the influence of any drug to the extent that he was unable to drive safely. PIK Crim. 2d 70.01; State v. Reeves, 233 Kan. 702, 644 P.2d 862 (1983). Defendant maintains that the city was unable to prove this element without expert testimony concerning the effects of the prescription drugs in question. This issue is without merit.
The charge of driving while under the influence of alcohol may be proven by circumstantial evidence. State v. Fish, 228 Kan. 204, 210, 612 P.2d 180 (1980). The circumstantial evidence in the present case is more than sufficient to support the conviction. Defendant himself testified he took a sleeping pill before driving home and then became sleepy. Nora Grissom testified that defendant drove erratically and eventually rear-ended her car. The police officers involved testified defendant failed the coordination tests. This evidence taken together was sufficient to lead any reasonable person to conclude that defendant’s taking a sleeping pill resulted in intoxication which impaired his ability to drive.
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Bishop, J.:
The State of Kansas Employment Security Board of Review appeals from a district court order overruling the board’s decision that the employer experience rating of Manpower, Inc., of Wichita (Manpower) should be charged a pro rata share of employment benefits paid a former employee.
The case was tried on a stipulation of facts which covered the following matters;
The business of Manpower is furnishing to its customers temporary, emergency, and part-time employees. Requests for temporary help received by Manpower from its customers vary from a minimum of four hours to a fixed period of longer duration. The workers are employees of Manpower in all respects, rather than employees of the customers; Manpower is liable for unemployment insurance tax on such employees; and, in the circumstances prescribed by statute, it is a last employer, a base period employer, or both, depending upon the particular facts of a claim for unemployment benefits.
The claimant in this matter, John Sutton, made application for employment with Manpower on February 18, 1981. As part of the employment procedure, he executed an application which set forth these conditions of employment:
“I understand that I am not required to wait at this office for a work assignment, that I may feel free to report here if I so desire, that my pay starts when I report to Manpower’s customer ready for work, that I am not required to return to this office at the end of a work assignment, that I may mail in my time slip when my work assignment is completed for the week. If I do not contact the Manpower office after completing an assignment, Manpower Inc. may assume that I am no longer ready, willing, or able or otherwise available for work.”
At the same time, Sutton executed an Employee’s Withholding Allowance Certificate, Form W-4, and was furnished certain written information explaining work requirements, job assignment procedures, company policies, and procedure for payment of work completed for Manpower customers.
Between February 18 and March 26, 1981, Sutton was assigned to five different customers of Manpower. Sutton’s assignments to Manpower customers varied in length from one day to several days. It is stipulated that Sutton worked “various intermittent” days, so there were days when he did not work for Manpower customers.
On his last day, March 26, 1981, Sutton worked a full day for a Manpower customer. Thereafter, he did not report to Manpower for assignment. On March 27, 1981, Manpower had available work assignments for eight different customers, and if Sutton had reported for work on that day, he would have received an assignment for work comparable to that he had been performing, at comparable pay. Further, Manpower had assignments available on subsequent days.
Other facts established by the record are that a statement of Manpower policies was given to Sutton upon his employment which stated as follows:
“While we are a temporary help service, we are interested in hiring qualified people on a long-term basis. Some of our assignments are short, some are long. If you want to work and meet our requirements, we will attempt to provide you with 40 hours work per week.”
Manpower paid the employer’s share of the social security tax and paid the cost of workers’ compensation insurance for its employees.
On October 11, 1981, having subsequently worked for other employers, Sutton filed a claim for unemployment compensa tion, which was approved, and a charge was made to Manpower’s experience rating account based upon Manpower’s liability as a base period employer. Manpower duly appealed the board examiner’s decision that its experience rating account should be charged, and on November 10, 1982, a board referee upheld the examiner’s decision, reasoning that:
“Work assignments at various locations with different employers cannot be construed as continuous employment, but are different periods of employment. Each time an assignment is completed by an employee, he is laid off due to lack of work until a new assignment is accepted.
“The referee concludes that claimant was laid off due to lack of work. Therefore, the employer’s experience rating account is charged.”
On December 21, 1982, on review by the full board, the findings of facts and decision of the referee were adopted and her decision affirmed. On January 7, 1983, Manpower brought this action in the district court for review of the board’s decision.
The issue is neatly framed by the finding of the referee. The board contends that at the completion of each assignment for a customer of Manpower, claimant Sutton was separated from Manpower for the reason that his “service assignment” had ended. The position of Manpower is that Sutton left work voluntarily without good cause attributable to his employment when he failed to report on the next day or subsequent days when comparable employment at comparable pay was available to him as an employee of Manpower.
Before reviewing the pertinent statutes, reference should be made to the history of the litigation in Sedgwick County of this same issue between the same parties. In 1973, Manpower and the board litigated the identical issue presented here on facts different in no material respect from the facts of this case. (Manpower, Inc., of Wichita v. State of Kansas Employment Security Board of Review, Case No. C-27571, District Court of Sedgwick County, Kansas). The employee in the 1973 case worked a period of time on the date he made application with Manpower and for a different customer of Manpower on the succeeding day. Five days later, he worked seven hours for another Manpower customer. On the next succeeding day the claimant did not report to Manpower for a work assignment. The evidence was that if claimant had so reported, a work assignment would have been available for him. The determination by the board was the same in the 1973 case as in this, and Manpower appealed to the district court the charge to its experience rating as a base period employer. The case was heard before The Honorable Tom Raum of the District Court of Sedgwick County, and on September 28, 1973, Judge Raum entered judgment for Manpower, concluding that under the law the employer-employee relationship was continuous in nature and ceased when the employee was terminated for cause pursuant to the terms of the employment contract. It was found as a matter of law that completion of a given work assignment did not result in the termination of the employer-employee relationship. The court ruled that, where an employee of Manpower failed to report to Manpower for a further work assignment and later accepted other employment upon termination of which he was entitled to unemployment compensation benefits, with respect to Manpower the employee was deemed to have terminated his most recent employment with Manpower without good cause attributable to his employment.
That 1973 decision established the modus vivendi between Manpower and the board with respect to employees of Manpower who failed to report when work assignments were available until the ruling of the examiner which initiated this case. As Manpower points out, there has been no change in the pertinent statutes and no appellate decisions requiring a different construction than that adopted by Judge Raum.
Under the Employment Security Law unemployment benefits for a qualified claimant are paid from a fund to which employers subject to the law contribute. The method of computation of those contributions is set forth in K.S.A. 1985 Supp. 44-710a. A separate account is maintained by the Secretary of Human Resources to which the contributions of each contributing employer are credited, and benefits are charged against the account of each base period employer ratably as provided by statute. There are exceptions, however, to charges against the account of a base period employer and these are detailed in K.S.A. 1985 Supp. 44-710(c)(2)(A). It is provided there that:
“Benefits paid in benefit years established by valid new claims shall not be charged to the account of a contributing . . . base period employer if the examiner finds that claimant was separated from the claimant’s most recent employment with such employer under any of the following conditions: . . . (iii) leaving work voluntarily without good cause attributable to the claimant’s employment.”
The trial court found, as Judge Raum had earlier, that when the claimant, Sutton, failed to report and request an assignment on the day next succeeding the last day he worked, a work assignment being then available, his action fell within the condition of the statute relieving Manpower from a charge to its experience rating account.
The board cites the definitions of employment and unemployment from the definitions provision (K.S.A. 1985 Supp. 44-703) of the Employment Security Law and argues that Sutton was separated from Manpower after March 26, 1981, because no service was performed. The argument begs the question, because what must be determined under K.S.A. 1985 Supp. 44-710(c)(2)(A)(iii) is whether Sutton left work voluntarily without good cause attributable to his employment. It is not in question that no service was performed after that date.
The board complains of the construction by the trial court of K.S.A. 1985 Supp. 44-706, which deals with disqualification of an individual for employment benefits. That section provides:
“An individual shall be disqualified for benefits:
“(a) If the individual left work voluntarily without good cause attributable to the work or the employer, subject to the other provisions of this subsection (a).”
This last provision, except as it shows generally the scheme and purpose of the Employment Security Law, is not pertinent to the issues of this appeal, as the board admits in its brief. The question here is whether or not the experience rating account of Manpower shall be charged and not whether claimant Sutton is entitled to benefits.
In considering the question of claimant leaving the employment of Manpower voluntarily or involuntarily, it must be kept in mind that claimant was the employee of Manpower and not of the Manpower customers seeking temporary employees. Claimant accepted, and contracted for, work assignments as the employee of Manpower when they might be available, but that did not mean that when one work assignment was completed he had to make application to become an employee of Manpower for a new assignment. Availability of work assignments could obviously be sporadic, but that is not the same thing as completion of one job and rehiring for another.
The board cites authority from another jurisdiction (Denver Postv. Dept. of Labor and Emp., 610 P.2d 1075 [Colo. 1980]), to the effect that substitute employees are unemployed when their period of substitution ends. That circumstance is hardly analogous to a situation in which the employee’s employment ends when he fails to report. Both parties cite the preamble to the Employment Security Law (K.S.A. 44-702) affirming that “involuntary” unemployment is a subject of general interest and concern, drawing different conclusions from their emphasis on “involuntary.” The board cites Southwestern Bell Tel. Co. v. Employment Security Board of Review, 210 Kan. 403, 502 P.2d 645 (1972), and Pickman v. Weltmer, 191 Kan. 543, 382 P.2d 298 (1963), in support of the general proposition that the unemployment provisions should be liberally construed to effectuate the purpose of providing benefits for those whom the law seeks to assist, but those cases provide no guidance here beyond that. The question is simply the intent of the legislature as expressed in the statute (K.S.A. 1985 Supp. 44-710[c][2][A]) and whether the employment arrangement between Manpower and Sutton can rationally be construed as terminating each time Sutton completed a work assignment.
The board makes the argument that Manpower attempts to insulate itself from liability for unemployment contributions by the provision of the application for employment in which a Manpower employee acknowledges that if he does not contact Manpower after completing an assignment, it may assume that he is no longer ready, willing, or able, or otherwise available for work. In its brief before the trial court, the board argued that construction of the application to create a continuing employer-employee relationship despite day-to-day changes in job assignments would result in a determination that the employee left work voluntarily without good cause attributable to the employment at any time the employee did not have an assignment except in one instance. That would be if the employee contacted the employer and there was no work assignment available. This is, no doubt, the effect of treating an employee of Manpower who fails to report as indicating an unwillingness to work for reasons not attributable to his employment and not based upon good cause. It is, however, fully consistent with the express provisions of the statute. The failure of an employee to appear for work without good cause when work was available would exempt an employer from a charge to its experience rating account in any circumstances, regardless of whether the employer’s business was furnishing temporary help to customers or furnishing labor services in any other manner. Counsel for Manpower stated in oral argument that when no work was available for a reporting employee, no exemption under the statute was claimed by Manpower. That would be the logical consequence of a construction that the application of the exemption arises when the employer has work available and the claimant chooses, for no work-related cause, not to work.
Manpower draws an analogy to the situation of a plumbing or electrical firm whose employees perform various work assignments for various customers. Manpower’s argument is that it could not be successfully argued that an employee of the plumbing firm or electrical firm was terminated for lack of work until he reported to the next customer location. The analogy is apt and the employee of the plumbing firm or electrical firm would be no more a temporary employee than an employee of Manpower. The confusion arises when Manpower’s employees are considered as temporary employees of Manpower rather than employees of Manpower providing temporary labor for Manpower’s customers.
The applicable statutory provision is not ambiguous and thus requires no search for legislative intent beyond the words used.
“A primary rule for the construction of a statute is to find the legislative intent from the 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 in the words used.” State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974).
The claimant became an employee of Manpower without a guarantee of 40 hours per week but with the understanding that work would be available, upon a satisfactory record of performance, so long as there were customers for Manpower’s services. Claimant had the option of not reporting, but he had also the opportunity to work when there was demand for Manpower’s particular services. In those circumstances, the employment agreement was continuing at claimant’s option, as is the case with most employment calling for unskilled or semiskilled labor. To say that completion of a work assignment amounted to a severance of employment for a job-related reason ignores the practical consequences of the construction. It would make as much sense to say that if Manpower had a customer request for four days of work to which claimant was assigned and claimant should fail to report on the third day, he would become unemployed for a reason attributable to his employment because no services would be furnished until he reported further. To reason otherwise is to say that the critical factor is the customer of Manpower for whom the services are performed. To hold that if a work assignment for one Manpower customer is completed at 5:00 p.m. on one day, the Manpower employee performing the work is severed from employment at that time, when he might begin an assignment for another customer at 8:00 a.m. on the following day except for his unwillingness to work, while if the work on the second day is for the same customer there is no severance, is to treat the employee of Manpower as the employee of the customer, quite contrary to the intent of all parties. “Statutes must be construed with reason, considering the practicalities of the subject matter addressed.” Anderson v. Overland Park Credit Union, 231 Kan. 97, Syl. ¶ 5, 643 P.2d 120 (1982).
Finally, the decision of Judge Raum in the earlier case involving the same parties, nearly indistinguishable facts, and an identical question of law is entitled to consideration. In her opinion, the referee in this case remarked that the ruling of Judge Raum was only persuasive and not binding upon her. Even if the decision in the prior case has only persuasive effect, the conclusions of law on which the prior decision is based have behind them the force of logic and reason and the interpretation of the statute according to its plainly expressed intent.
The trial court was correct in determining that completion of one working assignment did not amount to termination of the claimant’s employment. Failure to report for a work assignment when such assignments were available amounted to leaving work voluntarily without good cause, a separation under a condition in which the law provides benefits paid shall not be charged to the account of the base period employer.
The judgment is affirmed. | [
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Parks, J.:
This appeal arose out of plaintiff s small claims action to recover money paid defendant for the purchase of a car. Plaintiff prevailed in both the small claims proceeding and on defendant’s appeal to district court. She now appeals the amount of the judgment awarded and the district court’s failure to award punitive damages or attorney fees.
On January 5, 1985, plaintiff Cherri Quigley bought a 1974 Ford Torino from Larry Sears, the defendant and owner of Central Auto Credit. Plaintiff paid the purchase price of $450 plus $22.50 in sales tax. Defendant gave plaintiff a car title and sales receipt but made marks on the title altering it.
Plaintiff immediately began to experience mechanical difficulties with the car and by January 15 had paid $84.66 in repairs. On February 7, plaintiff incurred an additional $10.45 in car repairs.
Sometime at the end of January, plaintiff went to the county clerk’s office to obtain license tags for her new car. However, when she presented the title supplied by defendant, the clerk explained that the title was no good. The clerk called a uniformed police officer to the office and plaintiff was asked to accompany him to the district attorney’s office. Plaintiff testified that she was worried and humiliated by the incident. She went with the officer to the district attorney’s office, where she met with Mr. Nick Tomasic, the district attorney, and Mr. Dan Doyle, an assistant district attorney. The car title was retained by the district attorney’s office and Ms. Quigley was told that her title was no good.
Following this incident, Ms. Quigley testified that she called the defendant and demanded her money back. The defendant refused to return the money and asked Ms. Quigley to get the car title back from the district attorney.
After the defendant refused to return the $472.50 to Ms. Quigley, she filed an action in small claims court, where she obtained a judgment against him for $450 and costs. On July 22, 1985, Ms. Quigley sent a letter by certified mail to the defendant wherein she enclosed the key to the 1974 Ford Torino and asked the defendant to pick up the car.
Defendant appealed from the small claims judgment and plaintiff responded by filing, with the assistance of counsel, a new petition. In addition to the cost of the car itself, plaintiff also prayed for the $95.11 spent in repairs on the car, $1,135 punitive damages, and attorney fees. On the day of trial, plaintiff filed a motion for attorney fees of $1,200 accompanied by affidavits claiming 15 hours of work at $80/hour. Also accompanying the motion were copies of the informations and journal entries of nolo contendere pleas entered by defendant in five separate charges of the crime of failure to deliver title in violation of K.S.A. 8-135(6), 8-135(7), and 8-149. One of these convictions arose out of the facts of this case, two involved sales of cars in 1984 and the remaining two convictions arose out of sales which took place after the sale to plaintiff. All five convictions were entered on April 10, 1985.
This case was tried on August 19,1985, before a judge pro tem. Plaintiff established without rebuttal by defendant that the title supplied by defendant was ineffective because it had been improperly altered. Plaintiff failed to offer the evidence of defendant’s criminal convictions into evidence but, according to counsel, they were referred to in argument concerning the propriety of awarding punitive damages. These arguments were not transcribed. The court refused to award any of the additional damages claimed by plaintiff in district court. Judgment was entered for $450 plus $10 for the cost of filing the small claims action. The court made no findings of fact or conclusions of law in the record.
Plaintiff contends on appeal that the district court erred in failing to award her damages for all of'the actual damages she sustained as a result of defendant’s failure to deliver good title to the car and in failing to award punitive damages for fraud. Defendant argues that the court’s action was justified because, since plaintiff filed her suit as a small claims action, she was limited on the appeal to a recovery of the $500 maximum permitted in such a case at the time this action was filed. K.S.A. 61-2703(a). See L. 1986, ch. 224, § 1 (amending K.S.A. 61-2703 to increase a “small claim” from $500 to $1,000). Defendant contends that the district court’s jurisdiction on appeal is derived from the small claims suit so that he may not be subjected to the possibility of damages in excess of $500 even though the trial itself is de novo. Plaintiff argues that the significance of the statutory provision for a de novo trial is that the district court proceeding is not so much an appeal but a completely new proceeding. The plaintiff may rely on her original pleadings but because this is the first time she can be represented by an attorney, she may also file a new petition stating additional claims for relief.
This issue of whether a plaintiffs recovery in an action originally filed as a small claims action is limited on defendant’s appeal to district court to the amount plaintiff could have recovered in the small claims proceeding was recently decided in Armstrong v. Lowell H. Listrom & Co., 11 Kan. App. 2d 448, 725 P.2d 540 (1986). In that case, a panel of this court vacated a judgment in excess of the small claims limit and held that a plaintiff who elects to proceed under the small claims procedure act, K.S.A. 61-2701 et seq., waives the right to recover an amount in excess of a small claim. The court concluded that a district court sitting as small claims appellate court may not award the plaintiff a judgment beyond the scope of small claims jurisdiction. Therefore, in order to be consistent with the opinion in Armstrong, we conclude that the district court was limited in the amount that it could award plaintiff by the $500 maximum in effect when the small claims suit was initiated. However, since the court’s judgment in this case was less than this maximum, plaintiff s contention that she was entitled to additional damages is not completely resolved.
The district court awarded plaintiff judgment for actual damages of only $450 but her evidence established without contradiction that in addition to the price of the car, plaintiff incurred expenses of $22.50 for sales tax and $84.66 for repairs on the car prior to discovering the defect in the title certificate. Our law clearly provides that the “sale of a vehicle required to be registered under the laws of this state, without assignment of the certificate of title, is fraudulent and void.” K.S.A. 1985 Supp. 8-135(c)(7). In addition, case law provides that violation of the registration provisions of the motor vehicle law creates a cause of action for fraud as well as supporting an action for breach of the implied warranty of good title (K.S.A. 84-2-312). Green v. Devoe Sales, Inc., 206 Kan. 238, 244, 477 P.2d 944 (1970); Gurley v. Broadway Sales Co., 184 Kan. 179, 182, 334 P.2d 312 (1959). In light of the uncontested evidence of a violation of the registration law and actual damages to plaintiff in excess of $500, the court erred in failing to award plaintiff the maximum recovery permitted in a small claims appeal.
Plaintiff also complains that the district court erred in failing to award attorney fees. K.S.A. 61-2709(a) requires the trial court to award the successful appellee reasonable attorney fees incurred in the appeal of a small claims action. Szoboszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983). It is undisputed that plaintiff was a successful appellee since she obtained substantially the same amount she was awarded in the original small claims proceeding. Szoboszlay, 233 Kan. at 482-84. However, defendant contends that the mandatory attorney fee provision does not apply because no fees were “incurred” by plaintiff since she was provided free representation by the WyandotteLeavenworth County Legal Aid Society.
In federal cases applying the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1982), the courts have uniformly concluded that wording referring to “incurred” attorney fees does not preclude the award of such fees to a party who is represented without charge. Watford v. Heckler, 765 F.2d 1562, 1567, n. 6 (11th Cir. 1985); Cornella v. Schweiker, 728 F.2d 978, 986 (8th Cir. 1984). The basis for these decisions hinges largely on the purpose and legislative history of the particular law involved. Nevertheless, the reasoning of those decisions is pertinent to the application of the Kansas law.
The purpose of the requirement that attorney fees be awarded to a successful appellee is to discourage meritless or harassing appeals. The small claims procedure is intended as an inexpensive method of dispute resolution and for this reason attorneys are not permitted to participate. If the defendant can freely appeal and subject the plaintiff to the incursion of attorney expenses which are likely to exceed his original claim, the plaintiff s goal of economical justice is thwarted. However, in addition to the plaintiff, it is our court system which is needlessly taxed with the repetitious resolution of a dispute. The mandatory attorney fee award not only protects the appellee, it encourages finality and serves as a deterrent against a waste of judicial resources. This deterrent purpose is served regardless of whether the attorney fee expense for the appellee is incurred by the appellee directly or is absorbed by the treasury of an agency providing free legal representation. It makes little sense to deter only those appellants who are sure their opponent would not qualify for legal aid from needlessly appealing a small claims judgment.
The fundamental rule of statutory construction to which all others are subordinate is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 871, 703 P.2d 840 (1985). In light of the dual purpose of the attorney fee provision, the mandatory award should not be precluded because the successful appellee was represented without charge by a legal aid society.
We conclude that the district court erred in failing to award plaintiff a judgment for the maximum amount of damages which may be recovered in a small claims appeal and in failing to award reasonable attorney fees. The judgment of the district court is vacated and the case remanded for the entry of judgment consistent with this opinion. | [
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Davis, J.:
Defendant Richard D. Cutshall appeals from a judgment granting plaintiff Homer L. Rosson’s summary judgment motion for possession of real estate and damages. This appeal is taken only from that portion of the judgment granting plaintiff monetary damages.
On October 21, 1975, Homer L. Rosson and his wife entered into a written contract for the sale of real estate with Richard D. Cutshall and his former wife, Kellie S. Cutshall (now Brashier). The Cutshalls have since divorced and defendant Richard Cut-shall was awarded the real estate subject to the contract for sale. Mrs. Rosson is now deceased. Plaintiff Homer Rosson and defendant Richard Cutshall remain as parties on this appeal.
The purchase price set forth in the contract of sale was $27,500 with $2,750 down payment and monthly payments of $225 for a period of eight years. The contract further provided that the defendant would pay real estate taxes and would maintain hazard and liability insurance on the property. The contract also contained the following clause:
“IN THE EVENT Second Parties [Cutshalls] shall fail, for more than two (2) months to make any deferred payment of interest and principal, or shall become delinquent, First Parties may, at their option, declare this agreement to be null and void, shall be entitled to retake possession of said real property and improvements, and Second Parties will be liable for attorney fees of such repossession. All payments theretofore made by Second Parties shall be deemed to be rents. In the event Second Parties shall fail to maintain hazard insurance or fail to pay real estate taxes as due then First Parties may, at their option, declare this agreement to be in default as if payments of interest and principal were two (2) months in default. Second Parties are responsible for any damages or losses occurring during any interim which property is not insured and all attorney fees resulting from same.”
Defendant failed to pay real estate taxes in 1979, 1980, 1981, 1982,1983 and 1984. Defendant did not pay insurance premiums totaling $1,333. No action was taken by plaintiff under the contract for defendant’s failure to comply with the terms of the contract. Throughout this period of time, defendant continued to make installment payments on a somewhat regular basis. The last payment made by defendant was on December 13, 1982. At this time there remained, unpaid, abalance of $19,850.18. Under the terms of the contract, the balance of the purchase price was to have been paid on or before October 21, 1983.
On February 22, 1984, plaintiff filed suit alleging defendant had breached the contract by failing to pay installments and insurance premiums. Plaintiff also sought recovery for the reasonable rental value of the premises since October 21, 1983, which plaintiff alleged was $250 per month.
On October 10, 1984, plaintiff filed a motion for summary judgment seeking an order for possession, quiet title, the reasonable rental value of the premises from the time of default, and costs. Plaintiff filed an affidavit stating the reasonable rental value of the property from October 1975 through September 1984 would be no less than $250 per month.
In granting summary judgment, the court declared forfeiture and cancellation of the real estate contract and ordered defendant to surrender possession to plaintiff. The court further awarded a money judgment for the reasonable rental value of the property at the rate of $225 a month for twenty months (from March 1983 through October 1984), a total of $4,500. Plaintiff was further awarded $2,627.94 for total taxes due in 1979, 1980, 1982 and 1983, and $755.08 for the 1981 taxes. The 1984 taxes in the amount of $566 were ordered prorated between the parties to the date of plaintiff s taking possession of the property. Plaintiff was also awarded $898 for insurance premiums he had personally paid. Defendant was also ordered to pay a prorated share of the insurance due from November 1984 through November 1985, based on the date defendant surrendered possession of the premises. The cost of the action was assessed against defendant but plaintiff s request for attorney fees was denied.
Defendant Richard Cutshall timely appeals from that portion of the trial court’s order granting plaintiff a money judgment. On June 14, 1985, plaintiff filed a motion for costs and fees with the clerk of this court alleging that the appeal taken is frivolous and for the purpose of delay and harassment.
The parties agree that there is no factual dispute. Neither party challenges the propriety of the court’s order granting summary judgment.
“Summary judgment is particularly appropriate where the facts are not disputed and the only questions presented are questions of law. [Citation omitted.]” Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985).
Given undisputed facts, it was proper for the court to enter summary judgment.
Defendant appeals from the trial court’s conclusions of law allowing plaintiff damages for reasonable rental value of the premises following default and the amount awarded for delinquent taxes and insurance premiums. While the court did not specifically address the $2,750 paid by defendant upon the execution of the agreement or the monthly payments paid by defendant over a period of some seven years, terms of the contract upon forfeiture and cancellation vested these amounts in plaintiff as “rents.”
The trial court provides no rationale for its award of damages in addition to forfeiture under the terms of the contract other than its conclusions of law granting the same. Perhaps the court was impressed with the fact that defendant was still in possession of the real estate at the time of judgment, having made no payments under the contract for some twenty months after de fault. Plaintiffs contention on appeal also addresses this concern:
“Bluntly put, the appellant sought to take advantage of the appellee, an elderly gentleman who resides in Florida by withholding possession of the premises for two years following breach of the contract.”
It is difficult to follow this reasoning when plaintiff s cause of action, under the terms of the contract, first accrued when defendant failed to pay property taxes in 1979. When plaintiff finally alleged breach of contract in February of 1984, defendant had not made installment payments for over one year. Although plaintiff himself kept insurance coverage in force, under the terms of the contract, the plaintiff had no obligation to insure the premises and defendant was held responsible for any losses occurring while the property was not insured. Plaintiff s damages appear to be, in large part, of his own making.
Appellee seeks to justify the trial court’s decision on equitable principles, relying upon the case of Karnes Enterprises. Inc., v. Quan, 221 Kan. 596, 601, 561 P.2d 825 (1977), wherein the court states:
“The substance of the pleadings, not the form of the pleadings, determines the character of an action as equitable or legal in nature. (Estey v. Holdren, [126 Kan. 385, 267 Pac. 1098 (1928)]; Russell v. Bovard, 153 Kan. 729, 113 P.2d 1064 [1941]; Cloonan v. Goodrich, 161 Kan. 280, 167 P.2d 303 [1946]; City of Osawatomie v. Slayman, [182 Kan. 770, 323 P.2d 910 (1958)].) The fact that the plaintiff prays for a money judgment only is not controlling where the action is essentially one in equity. (Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076 [1931].)
“Where a court of equity obtains jurisdiction of an action for the purpose of granting some distinctively equitable relief, the court will take jurisdiction for all purposes and determine all issues in the case so that a full, effective, and determinative decree adjusting the rights of the parties may be entered and enforced. (Seibert and Lykins v. Thompson, 8 Kan. 65 [1871]; Martin v. Martin, 44 Kan 295, 24 Pac. 418 [1890]; Sanders v. Visser, 165 Kan. 336, 194 P.2d 511 [1948]; Place v. Place, 207 Kan. 734, 486 P.2d 1354 [1971].)”
Karnes deals with the basic principles involved in making a determination as to whether the action is essentially an equitable one requiring no jury, or whether the action is essentially a legal one requiring a jury trial. It simply does not provide support for the plaintiffs contention in this case.
A contract entered into by and between the parties should be given effect by the court and when the parties have agreed upon remedies available upon default, a court should be reluctant to add or subtract from such remedies unless such remedies are clearly implied under law. The terms of the contract provide the remedies available to the parties. The court, in its conclusions of law in this case, expanded on the remedies available to plaintiff in granting the monetary damages in addition to forfeiture.
Generally, the contract in question provided, upon default, for forfeiture by the buyers, possession returned to seller, and retention of monies paid as rents. The law abhors a forfeiture, and therefore equity may, when deemed appropriate under all the circumstances, provide an equitable period of redemption for the purchaser to avoid the harshness of strict contractual forfeiture. This equitable remedy is not expressly provided for in a real estate contractual sale agreement but is well established under Kansas law. First Federal Savings & Loan Ass'n v. McKain, 5 Kan. App. 2d 387, 389, 617 P.2d 583 (1980). See also United States v. Curry, 561 F. Supp. 429, 431 (D. Kan. 1983); K.S.A. 60-2414. Alternatively, the seller may, under the terms of such contract, upon default, sue on the contract requesting damages for breach of such contract. In the contractual sale of real property, because of the uniqueness of the subject matter of the contract, equity affords the additional remedy of specific performance. This remedy, while not expressly stated in the contract, is well recognized under Kansas law. Anderson v. Overland Park Credit Union, 231 Kan. 97, 643 P.2d 120 (1982); Hochard v. Deiter, 219 Kan. 738, 549 P.2d 970 (1976); Wilcox v. Wyandotte World-Wide, Inc., 208 Kan. 563, 493 P.2d 251 (1972). Clearly, the two remedies provided for in this contract are inconsistent in that the former disaffirms the contract while the latter affirms the contract.
The resolution of the issue presented to this court is governed by the doctrine of election of remedies, as reflected in Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 411-12, 548 P.2d 1238 (1976):
“The doctrine of election of remedies is an application of one phase of the law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions (Taylor v. Robertson Petroleum Co., 156 Kan. 822, Syl. ¶ 4, 137 P.2d 150 [1943], in which the essential elements of the doctrine are stated: [1] The existence of two or more remedies; [2] the inconsistency between such remedies; and [3] a choice of one of them), (pp. 826-827.) The purpose of the doctrine is not to prevent recourse to a particular remedy but to prevent double redress for a single wrong (25 Am. Jur. 2d, Election of Remedies, § 1, p. 647). In Kansas, at least before adoption in 1964 of our present code of civil procedure, we have consistently adhered to a strict rule on election of remedies to the effect that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one of them operates as a bar against the subsequent adoption of the others (see Berger v. State Farm Mutual Automobile Insurance Co., 291 F. 2d 666, 668, [CA 10, 1961]). We have always held, however, that the doctrine has no application where under the facts the remedies asserted by a party are concurrent and consistent (Pierce v. Melzer, 199 Kan. 100, 427 P.2d 632 [1967]). The test of inconsistency of remedies is a factual and logical one. To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. (Taylor v. Robertson Petroleum Co., [156 Kan. 822,] Syl. ¶ 5).
The court, in Griffith, reversed because the appellant was required to make an election of remedies at the pleading stage but its holding does not change the doctrine of election of remedies under Kansas law.
The relief granted by the trial judge here in the form of damages and forfeiture are factually and logically inconsistent in that the former affirms the existence of the contract while the latter disaffirms or repudiates the contract.
Some authority exists for the additional allowance of reasonable rental value by a vendor when he elects to sue in equity for forfeiture. The diverse viewpoints are summarized in 77 Am. Jur. 2d, Vendor and Purchaser § 324, p. 486:
“[I]n some cases where the failure to complete the contract was due to the fault of the purchaser, the right of the vendor to maintain an action against the purchaser for use and occupation has been denied. Thus, it has been denied that a purchaser who defaults in making the stipulated payments may be held liable for a reasonable rent, in an action for use and occupation. Other courts, however, follow the general principle that an implied obligation to pay rent by a vendee in possession arises upon disaffirmance of the purchase contract, whereupon the relationship of vendor and vendee is terminated. Under this view, when the vendee disaffirms the contract, the law implies an obligation on his part to pay for use and occupancy of the land ab initio.”
No Kansas cases are cited and no majority rule emerges. In the opinion of this court, a judgment of damages for reasonable rental value, under the terms of the contract in question, tends to blur the very clear statement under Kansas law regarding election of remedies. Griffith v. Stout Remodeling, Inc., 219 Kan. 408. Additionally, such a position tends to undermine the abilities of the parties in an arm’s length contractual agreement to predict the results of failure to perform obligations under their agreement. While the failure of defendant in this case to pay in accordance with the agreement was long standing and substan tial, the conclusions of the trial judge may have been different had plaintiff, in his original agreement, exacted a larger down payment. For this reason and in the interest of predictability, this court rejects the authority authorizing fair rental value damages in favor of the doctrine of election of remedies.
Plaintiff filed a motion contending that this appeal is frivolous and the court should assess costs and attorney fees. Attorney fees and expenses incurred on appeal are authorized by Supreme Court Rule 7.07 (235 Kan. Ixxv), which states, in part:
“If the court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel.”
“The allowance of an attorney fee on appeal is a matter for determination by the appellate court on motion of a party to the appeal.” Estate of Bingham v. Nationwide Life Ins. Co., 231 Kan. 389, 390, 646 P.2d 1048 (1982).
Plaintiff has complied with the rule. However, in light of our decision, plaintiff s contention that this appeal is frivolous is without merit.
We affirm the trial court’s order declaring forfeiture of the contract and quieting title in plaintiff. We reverse the trial court’s conclusions of law granting damages for the reasonable rental value and for amounts equal to delinquent taxes and insurance. Plaintiff s motion for costs and attorney fees on appeal is denied.
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Flood, J.:
The sole issue in this appeal is an award of attorney fees by the district court to the Workers’ Compensation Fund under K.S.A. 1984 Supp. 44-566a(f). The respondent and insurance carrier (appellants) contend such an award is proper only where the district court has determined that joining the Fund was frivolous. The district court did find that the decision to join the Fund was frivolous but appellants contend this finding cannot be supported by the evidence.
The claimant, Verna E. Simmons, was injured July 30, 1980, while employed by respondent Security National Bank. Her duties included helping customers with safety deposit boxes. She injured her left shoulder initially when she tried to catch a falling safety deposit box. This injury was later diagnosed as a torn rotator cuff. Claimant continued to work for respondent and continued to have incidents of pain in the shoulder when lifting safety deposit boxes.
The respondent and insurance carrier filed their motion to join the Workers’ Compensation Fund on the theory that claimant became a handicapped employee with the initial injury of July 30,1980, and that the later incidents of pain constituted repeated trauma for which the Fund could be liable.
The claimant settled with respondent and the case was submitted to the administrative law judge on the liability of the Fund. The administrative law judge found that while the claimant’s prior physical impairments were somewhat known to the respondent, the repeated incidents of trauma caused no additional disability. The judge therefore found the Fund was not liable and further that respondent should pay the Fund’s attorney fees. On review by the director, the nonliability of the Fund was upheld but attorney fees were denied. The director said that previous awards of attorney fees against employers had been limited to cases where the claim against the Fund was virtually baseless. The district court found the Fund was not liable because the medical evidence did not support any aggravation after the initial injury. The court found that whatever disability the claimant had was not sufficient to create in the mind of the employer a reservation when deciding to hire or retain the employee. Hines v. Taco Tico, 9 Kan. App. 2d 633, 683 P.2d 1295 (1984). The district court then reversed the Director and awarded attorney fees. The court held the claim against the Fund was frivolous because the respondent was aware early in this case that the medical testimony did not implicate any subsequent injuries in the cause of disability and, further, because the respondent was aware of a lack of “reservation” as required by Hines v. Taco Tico, 9 Kan. App. 2d 633.
In support of their argument that the joinder of the Fund was not frivolous, the respondent and insurance carrier point out that the Fund must be joined before the first full hearing (K.S.A. 1984 Supp. 44-567[d]) when medical evidence is not complete and, further, that the Hines decision was not handed down until after this case was submitted.
K.S.A. 1984 Supp. 44-566a(f) provides that if it is determined that the Fund is not liable, attorney fees incurred by the Fund “may” be assessed against the party who has impleaded the Fund. In Baum v. Greyhound Corp., 3 Kan. App. 2d 456, 601 P.2d 6, rev. denied 226 Kan. 792 (1979), the court dealt with a denial of attorney fees under this statute where the Fund had been impleaded without proper notice. The court said:
“It is noted that the legislature has used the word ‘may’ in this statute. To us this means that the matter of awarding attorney fees is at the discretion of the district court. We find no abuse of discretion on the part of the district court in denying these attorney fees.” 3 Kan. App. 2d at 458.
We conclude that following Baum, the denial or allowance of attorney fees under K.S.A. 1984 Supp. 44-566a(f) is a matter of discretion and does not require a finding that the joinder of the Fund was frivolous. An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. Cheek v. Hird, 9 Kan. App. 2d 248, 250, 675 P.2d 935 (1984).
Joinder of the Workers’ Compensation Fund initially was not frivolous. However, the medical evidence was complete before the case was submitted and the Hines decision was available before the district court opinion was handed down. The claim against the Fund could have been dismissed at some point, reducing attorney fees. We therefore find no abuse of discretion by the district court in the award of attorney fees.
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Lyle, J.:
Citizens National Bank and Trust Company, Emporia, Kansas, appeals from the judgment of the trial court awarding Utility Trailers of Wichita, Inc., damages for Citizens’ failure to provide notice to Utility Trailers prior to the sale of two refrigerated trailers, and for Citizens’ subsequent failure to disclose to Utility Trailers the name of the purchaser. Citizens held security interests (K.S.A. 84-9-304) and Utility Trailers held mechanics’ liens (K.S.A. 58-201) on the trailers.
The facts will not be repeated except as is necessary to address the issues herein.
The first issue raised on appeal is whether a security interest holder who sells its security has a duty to disclose to a mechanic’s lien holder the name of the purchaser of the secured property. Our analysis of this issue will be expanded to encompass whether a foreclosing creditor has a duty to notify other secured parties of an impending sale.
Utility contends there is a duty owed by Citizens, holder of a chattel mortgage on which it foreclosed and sold the collateral, to disclose to Utility, a mechanic’s lien holder, the name of the purchaser of the secured property. Citizens contends there is neither a common-law nor a statutory duty to make such a disclosure.
A person who makes repairs on any trucks or trailers pursuant to the owner’s request has a first and prior lien on that property for the full cost of his labor and materials. K.S.A. 58-201. A mechanic’s lien “may be enforced and foreclosed as security agreements are enforced under the provisions of the uniform commercial code.” K.S.A. 58-202.
K.S.A. 84-9-310 states the priority of mechanics’ liens in relation to perfected security interests:
“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, alien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.” (Emphasis added.)
In both the official UCC Comment and the Kansas Comment to that section it is stated that the primary requirement is that the statutory lien holder be in possession of the goods. Under K.S.A. 58-201, however, a statutory lien claimant can retain the rights of a lien holder in possession if, within forty-five days of parting with possession, the lien is properly filed.
A properly filed statutory mechanic’s lien may seriously decrease the value of a code security interest if, as in Kansas, the lien has priority over earlier perfected security interests. K.S.A. 58-201; K.S.A. 84-9-310. The rationale supporting this priority of interests is that the work of the mechanic’s lien holder will enhance or preserve the value of the collateral of the secured party. Hockaday Auto Supply Co. v. Huff, 121 Kan. 113, 115, 245 Pac. 1013 (1926); Official UCC Comment to K.S.A. 84-9-310.
Utility analogizes its position as a mechanic’s lien holder to that of a secured party with an interest superior to that of Citizens. K.S.A. 84-9-504 governs a secured party’s right to dispose of collateral after default. K.S.A. 84-9-504(3) states the collateral may be disposed of in cases of non-consumer goods after proper notice to both the debtor and “to any other secured party from whom the secured party has received (before sending his notification to the debtor or before the debtor’s renunciation of his rights) written notice of a claim of an interest in the collateral.” (Emphasis added.)
Citizens does not contest this analogy but argues only that no notice was required to be given Utility pursuant to the statute since Utility failed to give Citizens written notice of its interest. Utility argues that the filing of its mechanic’s lien fulfilled the requirement of written notice to the foreclosing creditor under the statute. Utility contends it was therefore entitled to notice of the impending sale of the collateral and that Citizens’ failure to comply with this provision made it liable under K.S.A. 84-9-507(1) for the amount of Utility’s lien.
K.S.A. 84-9-507(1) specifies the damage a party will incur for failure to give a prior lien holder notice: “If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the. disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part.” Citizens admitted it failed to check the records for a prior interest in the collateral and failed to give Utility notice of the foreclosure sale.
The major issue in this case turns on whether the trial court’s construction of K.S.A. 84-9-504(3) was correct. In ruling on the meaning and requirements of that statute, the lower court was stating a conclusion of law; appellate review of conclusions of law is unlimited. Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 571, 644 P.2d 1354, rev. denied 231 Kan. 799 (1982).
Utility’s argument must fail. The 1976 amendment to K.S.A. 84-9-504(3) (Weeks) expedited foreclosure proceedings by shifting the burden of notice of a claim of an interest in the collateral to the competing secured parties.
“Under the old Code, the notice must be sent to both the debtor and ‘except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement ... or who is known by the secured party to have a security interest in the collateral.’ Failure to send notification of the sale to a competing secured party who has filed a financing statement subjects the foreclosing creditor to damages under § 9-507(1). And even if the competitor has not filed a financing statement, the foreclosing creditor violates § 9-504(3) by failing to send him notification if he has actual knowledge of the competitor’s unperfected security interest. The burden of searching the files prior to foreclosure, as well as the danger that actual knowledge of a competitor may be imputed in a variety of ways, gives a bit of a chill to foreclosure under the old version of § 9-504(3). The [1976] amendments greatly aid the foreclosing creditor by requiring only that notification ‘be sent to any other secured party from whom the secured party has received . . . written notice of a claim of an interest in the collateral.’ In other words, the burden is shifted to the competing secured party (junior or senior) to inform the foreclosing creditor of his interest. There is not [an] affirmative duty to search the UCC files prior to sale; nor need the foreclosing creditor fret about the danger of imputed knowledge.” (Emphasis added.) Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 4.8[7][d] (1980).
Under K.S.A. 84-9-504(3), Citizens had no duty to search the file to locate even a senior secured party before proceeding to sell the collateral. Citizens’ failure to give notice to Utility could not be construed to be bad faith pursuant to K.S.A. 84-1-203.
Citizens is also correct that Utility still holds a valid mechanic’s lien which was not extinguished by the sale of the collateral. K.S.A. 84-9-504(4) states:
“When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtors rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this part or of any judicial proceedings.” (Emphasis added.)
Neither Citizens nor Utility disputes that Utility’s liens on the trailers were superior to Citizens’ chattel mortgage.
“The lien of a mechanic for the reasonable value of labor and material expended in repairing an automobile and replacing worn parts, at the request of the mortgagor, as provided for in R.S. 58-201, is superior to that of a prior mortgagee where such mortgagee allows the mortgagor to possess and use the automobile. The preference so given is not violative of the due-process clause of the federal constitution.” Hockaday Auto Supply Co. v. Huff, 121 Kan. 113, Syl.
See K.S.A. 58-201. Consequently, since Utility’s mechanics’ liens were superior to Citizens’ interest and not subordinate thereto, the lien was not discharged by Citizens’ sale of the collateral and could still be enforced by foreclosing on the collateral even though in the possession of a new purchaser. K.S.A. 84-9-504(4). “Said lien [mechanic’s lien] may be enforced and foreclosed as security agreements are enforced under the provisions of the uniform commercial code.” K.S.A. 58-202.
Utility maintains that Citizens’ refusal to disclose the name of the buyer of the collateral prevents it from enforcing its lien and is an indication of Citizens’ bad faith. “The principal limitation on the secured party’s right to dispose of collateral is the requirement that he proceed in good faith (Section 1-203) and in a commercially reasonable manner. See Section 9-504.” Official UCC Comment to K.S.A. 84-9-507. K.S.A. 84-1-203 states that “[e]very contract or duty within this act imposes an obligation of good faith in its performance or enforcement.” The official UCC Comment to K.S.A. 84-1-203 states “[t]he principle involved is that in commercial transactions good faith is required in the performance and enforcement of all agreements or duties.” (Emphasis added.) Citizens cannot be found to have performed its duties toward Utility in bad faith since it had no duty to provide Utility with notice of the sale. Citizens had no duty pursuant to K.S.A. 84-9-504(3) either to notify Utility of the sale or to disclose the name of the buyer.
The second issue raised on appeal is whether the mechanic’s lien filed February 11, 1982, on the 1975 American trailer is effective for work totaling $812.42 performed on December 15, 1981.
Citizens argues that the lien filed February 11, 1982, for the December 15, 1981, repairs on the 1975 American trailer is ineffective as the lien was not filed within 45 days after Utility parted with possession of the trailer as required by K.S.A. 58-201. Utility argues the December 15, 1981, repairs were part of one ongoing contract to repair and that the lien is effective as it was filed within 45 days after completion of those repairs on January 15, 1982.
The portion of K.S.A. 58-201 governing time limitations on filing reads as follows:
“If such property shall come into the lien claimant’s possession for the purpose of having the work, repairs or improvements made thereon, such lien shall be valid as long as the lien claimant retains possession of said property, and the claimant of said lien may retain the same after parting with the possession of said property by filing within forty-five (45) days in the office of the register of deeds, under oath, a statement of the items of the account and a description of the property on which the lien is claimed, with the name of the owner thereof, in the county where the work was performed and in the county of the residence of the owner, if such shall be known to the claimant.
“If the lien claimant was never in possession of said property, he or she may retain said lien by filing, within forty-five (45) days after the date upon which work was last performed or materials furnished in performing such work or making such repairs or improvements in the office of the register of deeds, under oath, a statement of the items of the account and a description of the property on which the lien is claimed, with the name of the owner thereof and the date upon which work was last performed or material last furnished in performing such work or making such repairs or improvements, in the county where the work was performed and in the county of the residence of the owner, if such shall be known to the claimant.”
“Since the mechanic’s lien is purely a statutory creation, only strict compliance with the provision in the statute will give rise to an enforceable lien.” Scott v. Strickland, 10 Kan. App. 2d 14, Syl. ¶ 4, 691 P.2d 45 (1984).
“All the mechanics’ lien statutes prescribe and limit the time for filing the claim, notice, or statement, and, as a general rule, the statutes are deemed mandatory in this respect, and it is essential to the existence and validity of a mechanic’s lien that the claim or statement shall be filed or recorded within the time limited by the statute.” 57 C.J.S., Mechanic’s Liens § 139a.
James Wood, president and general manager of Utility, testified the 1975 American trailer came into the possession of Utility for repairs on two separate dates. The first date was December 15, 1981, at which time the worst areas of damage were repaired and the trailer was returned to the owner. The owner brought the trailer back to Utility on January 15,1982, and the repairs were completed. Wood estimated that with the exception of about $25.00 for miscellaneous repairs, all labor and materials furnished on January 15, 1982, were related to completion of the December 15, 1981, contract. Separate repair orders with cost estimates were completed for both dates.
K.S.A. 58-201 clearly distinguishes between two classes of lien holders, those who have come into possession of the goods and those who have not. Had the 1975 American trailer not come into Utility’s possession, the continuity of the single contract for repairs would have allowed Utility to file a lien within 45 days of the completion of the repair work on January 15, 1982. It is uncontroverted, however, that the trailer originally came into Utility’s possession on December 15, 1981, and was released to the owner the same day. Utility’s lien for the December 15, 1981, repairs on the 1975 American trailer was invalid ab initio as Utility failed to file within the 45 days after relinquishing possession of the trailer. K.S.A. 58-201.
The request for attorney fees and costs of Utility on appeal is denied.
The trial court is reversed and the case is remanded with directions that judgment be entered by the trial court for Citizens. | [
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Briscoe, J.:
Ronald C. Ball was arrested for driving while under the influence of alcohol. He refused to submit to a breath test. The Kansas Department of Revenue determined Ball’s refusal was unreasonable and suspended his driver’s license pursuant to K.S.A. 8-1001(c). Ball appeals the district court’s affirmance of the suspension.
After his arrest, Ball was taken to the Sherman County Sheriff s office by a highway patrol trooper. When the breathalyzer machine was plugged in, Ball saw a light on the machine flashing on and off erratically. Ball told the trooper about the light and expressed some concern that the machine was not working properly. The trooper believed the problem was in the electrical outlet, not the machine, and plugged the machine into a different outlet. Following this change, the machine’s function appeared normal to the trooper. The trooper then asked Ball whether he would submit to the breath test. Ball again expressed concern about the machine’s reliability. The trooper then provided Ball with an explanation of how the machine operated. The trooper even opened the machine to show Ball a heat tape which indi cated that the machine was working properly. Despite the trooper’s explanation, Ball refused to take the breath test.
Ball’s driver’s license was subsequently suspended by the Kansas Department of Revenue after the hearing examiner concluded his refusal was unreasonable. On appeal to the district court, Ball only challenged this conclusion by the hearing examiner. The district court upheld the examiner by also concluding the refusal was unreasonable.
The trooper testified before the district court that the machine, known as a crimper box, is only used to gather breath samples and does not analyze the samples to determine blood alcohol content. The trooper testified that the machine uses heat to seal the glass tubes and the light that concerned Ball is used to indicate that the machine has reached the proper temperature to seal the tubes. The trooper noted that the machine also contains a heat tape which changes color when the proper temperature is achieved. In case of a faulty indicator light, the officer can double-check the machine by examining the heat tape. The trooper testified he explained these facts to Ball and assured him that the machine was reliable.
The only issue before us is whether the district court erred in finding that Ball’s refusal to submit to the breath test was unreasonable.
Ball contends that the district court erred by not considering the facts and circumstances surrounding his refusal to submit to the breath test. Specifically, he argues the court should have first considered the factual basis for his refusal before reaching the legal conclusion that Ball could not reasonably base his refusal on his belief that the breathalyzer machine was not functioning properly.
A careful review of both the transcript and the journal entry demonstrates the trial court first familiarized itself with the facts and circumstances surrounding Ball’s refusal before reaching its decision. Further, the court’s decision was correct.
Although the issue before us is essentially a fact issue, other courts have also concluded a driver’s refusal to take a breath test is not reasonable if based only on his belief that the test was unreliable. In a factually analogous case, Swedzinski v. Com'r of Public Safety, 367 N.W.2d 119 (Minn. App. 1985), Swedzinski was arrested for driving under the influence and was asked to submit to a breath test. On the first attempt at administering the test, the intoxilyzer machine kicked out the test record because of radio frequency interference. Swedzinski was aware of the faulty test. He refused to submit to a subsequent breath test and his license was revoked. On appeal, the trial court rescinded the revocation on the grounds that his refusal was reasonable. The Minnesota Court of Appeals reversed:
“The trial court found that Swedzinski’s ‘suspicions’ about the intoxilyzer machine (following the initial rejected test) justified his refusal to provide the requested breath sample. A driver who distrusts the intoxilyzer machine may not reasonably refuse to submit to testing. [Citations omitted.] The trial court’s reasoning could render ineffective our statute authorizing the intoxilyzer, Minn. Stat. § 169.123, subd. 2b (1984). It is reasonable to project that if appellant’s position is upheld, automobile drivers would quickly learn to voice an automatic suspicion about the reliability of the intoxilyzer when requested to take the test. We do not hold that there will never be any grounds to have a valid suspicion about a machine. On these facts we hold that even though the machine itself rejected the first test, the operator’s testimony that the machine was working properly after the rejection, along with the recording of a proper air blank sample, placed on Swedzinski the burden to take the test or risk the loss of his license. If he had a good faith doubt about the reliability of the machine, he could have had an additional blood test performed at his own expense under Minn. Stat. § 69.123, subd. 3 (1984).” 367 N.W.2d at 120.
A similar result was reached in Suspension of Operating Privilege of Bardwell, 83 Wis. 2d 891, 266 N.W.2d 618 (1978). Bardwell refused to submit to the breath test because he believed, based on his 25 yeárs as a judge and attorney, that only a blood test was reliable. According to the Wisconsin Supreme Court:
“The legislature has authorized the use of three tests, including the breath test. The legislature has given law enforcement agencies the choice of which of the three to designate as.the test that the driver must take first. The legislature has also stated that the designated test may not be the blood test. To permit the respondent to refuse the designated test, even on an informed opinion that the breath test is unreliable, would render the statute meaningless. Law enforcement agencies could never designate the breath test because all drivers could refuse it with impunity on the authority of the respondent. If a driver has a good faith doubt about the reliability of the breath test, he can simply exercise his option to have a blood test performed at his own expense.” 83 Wis. 2d at 901.
In Elliott v. Dorius, 557 P.2d 759 (Utah 1976), the driver refused to submit to the breath test because he believed that such a test was unreliable and instead requested a blood test. According to the Utah Supreme Court, “A person may not uni laterally determine one of the tests designated [by statute] to be unreliable; then, on that alone, claim his refusal to submit to such test was with reasonable cause.” 557 P.2d at 762. Accord McDonald v. Shaw, 581 P.2d 1017 (Utah 1978).
In the present case, Ball had no knowledge about the workings of the crimper box and presented no evidence to support his suspicion that the machine was actually faulty. The trooper, on the other hand, was familiar with the machine and indicated that the initial difficulty was corrected by switching electrical outlets. The trooper explained the machine’s operation to Ball and assured him that it was functioning properly. In light of these facts, Ball’s continued doubts about the machine were unreasonable.
Finally, as noted by cases cited from other jurisdictions, Ball’s position if upheld would devastate the effectiveness of our drunk driving laws. Any individual’s refusal to submit to a breath test could be determined reasonable based solely on an unsupportable suspicion that the test is unreliable. Although we reject Ball’s position, individuals suspected of driving under the influence are not without protection. Individuals who sincerely believe that the breath test is unreliable may have an independent blood test administered at their expense. K.S.A. 8-1004. In addition, if there is evidence that a test as given is unreliable, that evidence may be presented to discredit the validity of the test results in any criminal prosecution.
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Allen J.:
This is an appeal by defendant National Carriers, Inc., and Travelers Insurance Company (Travelers), lien intervenor, from the judgment of the District Court of Seward County, Kansas, in which thq lien intervenor’s subrogation lien was reduced by the percentage of fault attributed to the plaintiff s employer in a third-party action allowed by K.S.A. 1985 Supp. 44-504(a), and in which the plaintiffs attorney was awarded one-third of the amount of the subrogation lien as attorney fees.
On November 24, 1980, Archie Anderson (plaintiff) was injured while working on the premises of his employer, National Beef Packing Co. (National Beef). The injuries were sustained when a semitrailer driven by an employee of the defendant backed over the plaintiff. National Beef and National Carriers are both wholly owned subsidiaries of Idle Wild Foods, Inc. All three companies have workers’ compensation insurance coverage through Travelers.
The plaintiff received a total of $96,219.39 in workers’ compensation payments from National Beef and Travelers as a result of these injuries. On December 21, 1981, the plaintiff filed a lawsuit in Seward County District Court against National Carriers as the owner and operator of the truck which caused the plaintiff s injuries. Travelers filed a notice of lien and intervention with the district court to preserve its subrogation lien for workers’ compensation benefits paid to the plaintiff. The case was tried to a jury as a comparative fault action. The jury attributed 29% fault to the plaintiff, 22% fault to the defendant National Carriers, and 49% fault to the employer National Beef. The jury found total damages to be $700,000.00. Therefore, the trial court entered a judgment against National Carriers for $154,000.00, which was 22% of the total damages found. Plaintiff and defendant National Carriers both appealed from the trial court’s decision. This court affirmed the decision on February 28, 1985. Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985).
Subsequently, National Carriers paid to the district court the amount of judgment ($154,000.00) with interest accrued from the date of judgment. This amount was invested in an interest-bearing account pending disbursement. In a letter ruling dated June 12, 1985, and a journal entry dated June 13, 1985, the district court reduced Travelers’ subrogation claim of $96,219.39 by the percentage of fault attributed to the employer, National Beef (49%). The district court based its decision on the terms of the compromise settlement between the employer and the employee which was executed on July 6, 1982. The district court also reduced the subrogation lien by one-third as attorney fees for plaintiff s counsel.
The first issue is whether the district court erred in ordering that the subrogation lien in favor of the plaintiff s employer and Travelers be reduced by the percentage of fault attributed to the employer.
Travelers argues that the district court’s reduction of its subrogation lien was erroneous for two reasons. First, the statute allowing reduction of the employer’s subrogation lien, K.S.A. 1985 Supp. 44-504(d), could not be applied in this case since the accident leading to the cause of action occurred prior to the effective date of the statute. Second, Travelers argues that the compromise settlement agreement entered into by the parties should not be interpreted to allow reduction of the employer’s subrogation lien.
K.S.A. 1985 Supp. 44-504(a) allows an employee who is injured by a third party to sue such third party for damages and still be entitled to workers’ compensation benefits. In the event the employee recovers a judgment, the employer is subrogated “to the extent of the compensation and medical aid provided by the employer.” K.S.A. 1985 Supp. 44-504(b). Prior to 1982, K.S.A. 44-504 did not provide for reduction of an employer’s subrogation lien if the employer was found to be partially at fault for the employee’s injuries, even though K.S.A. 60-258a provided for comparative fault. The Kansas Supreme Court recognized the inequities in allowing a partially negligent employer to recover full subrogation in Negley v. Massey Ferguson, Inc., 229 Kan. 465, 468-69, 625 P.2d 472 (1981). However, the Supreme Court refused to reduce the employer’s lien since “[t]he extent and nature of the subrogation rights of an employer under the workmen’s compensation statutes are matters for legislative determination.” 229 Kan. at 469.
To remedy this inequity, the Kansas Legislature amended K.S.A. 44-504 effective July 1, 1982, by adding subsection (d). This provision reads:
“(d) If the negligence of the worker’s employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party’s injury, the employer’s subrogation interest or credits against future payments of compensation and medical aid . . . shall be diminished by the percentage of the damage award attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.” K.S.A. 1985 Supp. 44-504(d).
Travelers contends that this provision was retroactively applied since the accident involved in this case occurred prior to the enactment of K.S.A. 1985 Supp. 44-504(d). As a general rule, a statute will only operate prospectively unless the statute clearly indicates legislative intent for it to operate retroactively. Tew v. Topeka Police & Fire Civ. Serv. Comm'n, 237 Kan. 96, 103, 697 P.2d 1279 (1985); Kopp's Rug Co. v. Talbot, 5 Kan. App. 2d 565, 568-69, 620 P.2d 1167 (1980).
The Kansas Supreme Court has interpreted K.S.A. 1985 Supp. 44-504(d) and has held that it only operates prospectively. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 768-69, 667 P.2d 289 (1983). Therefore, it is necessary to determine whether the district court applied the statute retroactively in this case. Here, the injury to the employee occurred on November 24, 1980. The plaintiff-employee filed an amended petition against National Carriers on December 30, 1981. The trial leading to a judgment against National Carriers began on April 19, 1983, and the verdict was returned on April 22, 1983.
The appellate courts of Kansas have dealt with the problem of retroactive application of amendments to the workers’ compensation statutes several times. In Johnson v. Warren, 192 Kan. 310, 387 P.2d 213 (1963), the Supreme Court dealt with a 1961 amendment which allowed an increased amount of medical benefits to be paid to injured workers. The court held that the increase in benefits could not be retroactively applied to injuries incurred prior to the effective date of the amendment. The court stated:
“The liability of an employer to an injured employee isa liability arising out of a contract between them, and the terms of the statute are embodied in the contract [citation omitted]; the injured employee must therefore recover upon the contract with his employer, and the cause of action accrues on the date of the injury. [Citations omitted.] Where parties are under the compensation act their substantive rights are determined by the law in effect on the date of the workman’s injury. [Citation omitted.]” 192 Kan. at 313-14.
While this language would appear to apply to all rights be tween the employer and employee, including the employer’s right to subrogation, it should be noted that in Johnson v. Warren, 192 Kan. 310, and all other similar workers’ compensation cases, the courts dealt with legislative amendments which directly affected the employer’s liability for benefits to the injured employee. For example, in Lyon v. Wilson, 201 Kan. 768, 443 P.2d 314 (1968), the issue was the application of 1967 amendments which altered the conditions for which compensation would be paid to an injured employee in heart cases. The Supreme Court held that the amendments, which affected the amount of compensation, were not applicable to injuries which occurred prior to the effective date of the statute. Similarly, in Horton v. Fleming Co., 3 Kan. App. 2d 121, 590 P.2d 594, rev. denied 225 Kan. 844 (1979), this court refused to retroactively apply the repealed setoff provision which would affect the employer’s liability to the employee for an injury which occurred prior to the repeal. These cases are distinguishable from the case at bar for the reason that in these cases the courts’ emphasis was to avoid the retroactive application of amendments which would affect the amount of compensation due an injured workman.
This case does not involve the amount of compensation due an injured workman under the Workmen’s Compensation Act. This case involves the employer’s right of subrogation to the extent of the compensation and medical aid provided by the employer to the employee and the employer’s lien on a judgment obtained by the employee against a third-party tortfeasor. The employer’s right to subrogation and a lien on the judgment obtained by the employee is provided by K.S.A. 1985 Supp. 44-504(b) which commences with the words, “[i]n the event of recovery.” The right to subrogation therefore only arises in cases where the injured workman obtains a judgment against a third-party tortfeasor and there is no right to subrogation unless and until the injured workman has obtained a judgment against the third-party tortfeasor.
“Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. On the other hand, a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right.” Board of Greenwood County Comm'rs v. Nadel, 228 Kan. 469, 473-74, 618 P.2d 778 (1980).
In this case, damages were awarded on April 22, 1983, over nine months after the effective date of amendment (d) to 44-504. Since the statutory subrogation right does not exist until there is a recovery, the amended statute was not retroactively applied in this case. This finding is implicitly supported by the Kansas Supreme Court’s decision in McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766. In McGraw, the court based its analysis on the fact that “at the time of trial” the existing workers’ compensation statutes did not reduce an employer’s subrogation lien. 233 Kan. at 768. The court did not mention the date of the accident when discussing the retroactive application of the statute. For the foregoing reasons, the application of K.S.A. 1985 Supp. 44-504(d) to this case would not be retroactive.
Travelers also contends that the district court erred by interpreting the compromise settlement entered into by the parties. The district court found that the parties intended to allow Travelers its subrogation claim, less the percentage of fault attributed to the employer. In the compromise settlement, the parties specifically referred to K.S.A. 44-504. The settlement read in part:
“It is understood by the claimant that the respondent, Idle Wild Foods, and insurance carrier, Travelers Insurance Co., does not by this settlement waive its statutory Workers’ Compensation subrogation lien as to any recovery made by the claimant pursuant ti [sic] K.S.A. 44-504.”
This compromise settlement was agreed to by the parties on July 6, 1982, five days after the effective date of K.S.A. 1985 Supp. 44-504(d).
The scope of appellate review is broader when interpretation of contracts is involved. Furthermore, since the issues on appeal were submitted to the trial court on an agreed stipulation of facts and documentary evidence, the appellate court has the same opportunity to consider and evaluate the evidence as the trial court. Cosgrove v. Young, 230 Kan. 705, 716, 642 P.2d 75 (1982).
“It is a general rule that contracting parties are presumed to contract with reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes ... at the time a contract is made become a part of it and must be read into it as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. Following Steele v. Latimer, 214 Kan. 329, 336, 521 P.2d 304 (1974).” Cairo Cooperative Exchange v. First Nat'l Bank of Cunningham, 228 Kan. 613, Syl. ¶ 2, 620 P.2d 805 (1980).
In reading the settlement agreement as a whole, it is clear that Travelers did not intend to waive its right to subrogation. At that time, the existing law provided that the statutory subrogation lien was diminished by the percentage of fault attributed to the employer. This interpretation does not result in a waiver of Travelers’ subrogation lien; it merely interprets the “statutory subrogation lien” retained by the employer and its insurance carrier. The settlement agreement does not disclose any intention by the parties indicating they are not contracting with reference to existing law. The trial court therefore correctly found that the agreement was intended to allow the appellant a subrogation lien subject to reduction based on the fault attributed to the employer.
The next issue is whether the district court erred in allowing attorney fees to plaintiffs attorney against the amount of the subrogation recovery by the employer and Travelers.
K.S.A. 1985 Supp. 44-504(c) gives the trial court the discretion to fix attorney fees to be paid proportionately by the employer and the employee when either brings an action against a third-party tortfeasor. Travelers contends that the trial court abused its discretion in awarding attorney fees amounting to one-third of the employer’s subrogation lien. Travelers bases its contentions on the unique relationship between the employer, National Beef, and the third-party tortfeasor, National Carriers. Both companies are wholly owned subsidiaries of Idle Wild Foods. Travelers contends that it should not have to pay any attorney fees since the employer did not benefit from the bringing of the third-party cause of action. Because of insurance deductibles, Travelers argues that Idle Wild Foods will be paying itself and, therefore, it received no benefit from the bringing of the action.
However, National Beef was the plaintiff s employer. Therefore, it is only relevant whether National Beef benefited from the bringing of the action. In interpreting the attorney fee provisions of the workers’ compensation statutes, the Kansas Supreme Court expressed concern about interpreting the statute to have a “chilling effect upon the prosecution by the employee of his cause of action.” Nordstrom v. City of Topeka, 228 Kan. 336, 341, 613 P.2d 1371 (1980). Since it is clear that the employer recovered at least some of the benefits it paid plaintiff for workers’ compensation, it is within the purpose of the statute to allow the plaintiff to recover some attorney fees. To interpret it otherwise would have a definite chilling effect on an employee’s decision to bring an action.
Abuse of discretion is defined as a decision by the trial court where no reasonable person would take the view adopted by the trial court. See Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981); Cheek v. Hird, 9 Kan. App. 2d 248, 250, 675 P.2d 935 (1984). The district court’s action is not within the realm of abuse of discretion. In this case, the plaintiff recovered a judgment which resulted in a recovery of part of the benefits paid by the employer. Furthermore, the case went to a jury trial for resolution. Allowance of a fee of one-third of the subrogation recovery is not an abuse of discretion.
In the plaintiff-appellee’s brief at page seven, mention is made of attorney fees on appeal. A motion for attorney fees was filed in this court on July 30, 1985, along with a motion for involuntary dismissal. This court denied the combined motion on August 6, 1985, “with leave to renew in brief on the merits.” It appears the issue has been renewed.
Pursuant to Rule 7.07(b) (235 Kan. lxxv), this court may assess a reasonable attorney fee if it finds the “appeal has been taken frivolously, or only for purposes of harassment or delay.” The issues were not frivolous and there is no evidence of harassment or delay. The motion of plaintiff-appellee for attorney fees for services in connection with this appeal is denied.
The last issue is whether the district court erred in failing to award accrued interest to the employer and Travelers on the amount of the subrogation lien recovered as a result of this action.
In its journal entry, the district court was silent as to distribution of interest that accumulated on the judgment from the time it was awarded on April 22, 1983, until the time the judgment was paid over to the district court on or about April 29, 1985. The journal entry awarded specific amounts to Travelers and to the plaintiff s attorney; this, in effect, paid the plaintiff all the interest accumulated on the entire judgment.
No Kansas cases have been found discussing the distribution of interest between multiple parties who have an interest in the judgment. However, according to 73 Am. Jur. 2d, Subrogation § 117, pp. 673-74:
“One who is subrogated to rights under a mortgage, note, judgment, or other instrument is generally entitled to recover, in addition to the principal sum expressed therein, interest from the date of payment.”
Since K.S.A. 1985 Supp. 44-504 gives the employer a right to subrogation “when recovery occurs,” we are of the opinion the employer is entitled to the interest accumulated on the amount of the lien from the date of judgment.
The judgment of the trial court reducing the subrogation lien by the percentage of the employer’s fault and the awarding of attorney fees is affirmed. The trial court’s award of all of the interest on the judgment to the plaintiff is reversed and the case is remanded to the trial court for distribution of interest according to the views expressed in this opinion. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 2d of November 1872, Wicker-sham & Keith made a contract and mining lease in writing with one Wm. A. Wilkinson, who then occupied and claimed certain real estate under and by virtue of land-contracts made and entered into before that time between said Wilkinson and the Mo. River, Et. Scott & Gulf Railroad Co., whereby they had the right to mine coal on said land, and to erect such houses or shelters on the land as said W. & K. might deem necessary for the convenient prosecution of the work of mining. The contract or lease was for the term of twelve years, the term to begin on the 1st of January 1873, and also contained among other stipulations, the following:
“The parties of the second part shall have the right to commence mining said coal at any time, and they agree to do so as early as they can make the necessary preparations; and until they shall commence mining, the party of the first part reserves the right to mine coal on said land, but to desist when the parties of the second part shall commence mining. The parties of the second part agree to pay the party of the first part, as rent for said land, one-half cent for every bushel of coal they mine, to be paid monthly on the 15th of each month for the month previous.
“When the parties of the second part commence mining they agree to furnish the party of the first part all the coal he may need for his private use at the cost of mining same, and this sum is to be credited monthly upon the monthly payments of the parties of the second part for rent.”
From the time of the signing of the lease, until in June 1874, Wilkins neither saw nor heard from W. & K., and W. & K. took no steps to mine the land until in said June 1874, when they sent an agent to the land, accompanied by a laborer with shovel and pick, to go to mining, and to make a demand for the premises provided they were forbidden to work. At this time, the Chicago Zinc & Mining Co. were in the possession of the premises, had their works in operation, and had expended in the construction of their works, etc., upon the premises the sum of $65,000. After the months of January and February 1873 had passed, and W. & K. had done nothing under the lease in the way of mining, or commencing work therefor, Wilkinson wrote to them at Kansas City, Mo., wanting to know what they were intending to do; and not getting any reply from them, or receiving any information, he, a few weeks thereafter, wrote them a second letter, declaring the contract forfeited. The first letter from Wilkinson was received by W. & K., but not answered; the second letter they say they did not receive. W. & K. were coal merchants at Kansas City, Mo. In the month of June 1873, Wilkinson got his contracts with the railroad company embracing these premises renewed and extended, and in September of the same year sold the premises for a valuable consideration to one J. A. C. Thompson, and assigned the land-contracts with the railroad to him, and executed to him a general warranty deed, in which his wife joined. Thompson knew at the time of his purchase of the lease in question. On September 12th 1873, said Thompson received from the railroad company a general warranty deed to the said premises, and paid therefor the balance of the purchase-money, which Wilkinson yet had to pay. On September 11th 1873, Thompson made out a. warranty deed from himself and wife to the Chicago Zinc & Mining Co. for the lands. At such time, the company was not fully organized, and the deed was not delivered until the 23d of October 1873. The zinc company completed its organization, so that a certificate of incorporation was issued to it on the 23d of September 1873. After such organization, Thompson turned over the land to the company for $10,000, and received paid-up certificates of stock for such amount. On September 15th 1873, said Thompson was chosen general superintendent of the corporation. After all of the above transactions, W. & K. filed their petition t against the Chicago Zinc & Mining Co., and Thompson, and therein demanded damages for $15,000, and that the defendants be perpetually enjoined from mining and digging coal on the said premises, and from interfering with the rights of W. & K. On the trial a jury was waived, and the case tried to the court. Findings of fact were filed by the court, embodying among other things, all the above facts, and on all the findings of fact, the court held that W. & K. could not recover.
The court having found as a conclusion of fact, that the C. Z. & M. Co. had no actual knowledge of the lease of W. & K. at the time of purchasing the land from Thompson, such finding is conclusive of the case, and fully sus- ° , ^ tains the judgment, unless, as the plaintiff in error contends, the company was bound by the knowledge of Thompson, its general superintendent, as to the lease, or unless the company is held to have had constructive notice of the lease through the record of the same in the office of the register of deeds. It is undoubtedly true as a general proposition, that the principal is charged with the knowledge and bound by the acts of the agent; but this general rule, like most other rules, has its exceptions and limitations. The general rule is based upon the principle, that, as it is the duty of the agent to act upon the notice for his principal, or to communicate the information to his principal in the proper discharge of his trust as such agent, notice to the agent is likewise legal notice to his principal. This rule applies to the agents and officers of corporations, as well as others. This general rule has no application however to a case in which the one party does not act as agent, but avowedly for himself, and adversely to the interests of the other. In other words, neither the acts nor knowledge of an officer of a corporation will bind it in a matter in which the officer acts for himself, and deals with the corporation as if he had no official relations with it. Angell & Ames on Cor., §§ 308, 309; Winchester v. B. & S. Rld. Co., 4 Md. 231; Fulton Bank v. N. Y. & S. C. Co., 4 Paige, 127; Story on Agency, §140. In this case, Thompson bought the land for himself and one C. F. Russell; the deeds were taken to himself; and in the transfer and conveyance of the same to the company, he did not represent the company. He was acting in behalf of his own interests, and in an adversary character. His knowledge of the lease, under the circumstances, was not notice to the company of which he was an officer, unless it had been shown by proof to have been communicated to the company, or at least such facts had been established as would have been sufficient to have put the company on inquiry. In the contract or sale between Thompson and the company, he was act ing as a private individual, and there was no community of interest between him and the company; therefore the company had no knowledge of the lease through Thompson’s knowledge. With these views, it is unnecessary to comment upon the actual or constructive notice to Russell, and his relations with the corporation, as the conclusions we have reached, as to the knowledge of Thompson not being notice to the corporation, include all that could be said as to Russell.
We must also hold that the company had no constructive knowledge of the lease, by the record thereof. It is true, that it was filed for record April 14th 1873, in the office of the register of deeds of Cherokee county, and afterward recorded in that office. But it was not certified as required by sections 9, 10 and 11 of the General Statutes, page 186, and therefore did not impart notice to the company. In place of a proper acknowledgment of the lease, there is only the following:
“Subscribed to this 2d day of November 1871.
“E. A. Perry, Notary Public, [seal.]”
Section 20, Gen. Stat. 187, prescribes that instruments, certified and recorded as provided for in the act regulating conveyances of real estate, shall be notice to all persons of the contents thereof. As the lease was not certified as the statute directs and requires, the record of the lease imparted notice to no one.
The judgment is sustainable again, upon another proposition. There was such an abandonment of the lease by W. & K., and such a cancellation thereof by Wilkinson, and such acts and conduct on the part of W. & K., that they were estopped from asserting any right to the premises against the Zinc and Mining company, or to any claim for qamages against this corporation. If a contract specifies no time, the law implies that it shall be performed within a reasonable time. In this case, while the term of the lease was not to commence till January 1st 1873, it was specially provided that W. & K. should have the. right to commence mining coal at any time, and they agreed so to do as early as they eould malee the necessary preparations, and the said Wilkinson was to receive as rent for his land one-half cent for every bushel of coal mined, to be paid monthly. In view of all the conditions of the lease, it certainly must be apparent that the parties to the lease had in view in making the contract an early commencement of the mining of coal by W. & K. A long delay woi^ld have been injurious to Wilkinson, as in fact it actually was, because in the end, he became deprived of his property, owing to his inability to meet his payments to the railroad company, as he relied upon the payments on the lease to obtain funds to pay installments due on his. land-contracts at the date of the lease, and for the nonpayment of which the railroad company had the right to forfeit his interest in the land. After waiting till the spring of 1873, and nothing having been done, Wilkinson properly wrote to W. & K., inquiring what they intended to do in the matter. They received the letter, and refused to answer. In a few weeks Wilkinson wrote them again, declaring the contract forfeited. Nothing being attempted to be done by W. & K. under the lease, the Zinc and Mining company in the fall of 1873 purchased the premises. When the company was commencing work, an agent of W. & K. visited the premises described in the lease to see what coal could be mined for, and delivered to the cars on the Gulf railroad. After examinations, he reported to W. & K. that it could not be mined and delivered for less than eight or nine cents per bushel, and at this time W. & K. were getting their coal delivered to them upon the same railroad from other mines at seven cents per bushel, and were able to fill all their orders they secured from the coal which they were obtaining from other mines. They watched the growth of the extensive mining works upon the land in question, and the consequent expenditure of large amounts of money, making no attempt to assertjany claim, and giving no notice to the company of the existence of their lease. After sixty-five thousand dollars had been expended by the company upon the land, to lay a foundation for a suit they sent (in June 1874) an agent, with one man with a shovel and pick, to go to mining, and make demand for the premises. They then sought to resuscitate their lease, made in November 1872 in anticipation of immediate work thereunder. They had no right so to do. In view of their conduct to Wilkinson, and to the Zinc and Mining company, they were too late in asserting any claim under the lease. It would be grossly inequitable to hold otherwise. The judgment was rightfully given. If the plaintiffs in error have been damaged in the premises, which is not apparent from the record, the result comes from their own laches, and for such acts innocent parties should not suffer.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover damages for a wrongful expulsion from the train. The verdict and judgment were for $820 — :$20 of which the jury assessed for compensatory, and $800 as exemplary damages. It seems to be conceded by the plaintiff in error, that the former was proper; and the only question raised here is, whether the case was one for exemplary damages. And first, in this respect, are challenged the instructions. The court charged as follows:
“Now before you can allow this kind of damages at all, you must find that there was in this case on the part of the • defendant, mingling in the transaction complained of, either fraud, malice, gross negligence, oppression, or violence. And if you shall so find either of these, you can allow for it. Gross negligence means, the want of slight diligence; and slight diligence means, the lack of that care and prudence in and about a transaction which persons of less than common prudence would use and exercise.
“But again, our supreme court has said that you must find that this negligence is not only gross, but wanton also. And wanton means, a licentious act by one person toward another, without regard to his rights, or again, it is a reckless disregard of another’s rights.”
The subject of exemplary damages has several times been passed upon in this court. In Wiley v. Keohuk, 6 Kas. 91, it is said: “Whenever the elements of fraud, malice, gross negligence, or oppression, mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages.” This case is followed in Sawyer v. Sauer, 10 Kas. 466. Again, in L. L. & G. Rld. Co. v. Rice, 10 Kas. 426, where it is said: “The ninth instruction is to the effect, that if the injuries complained of were caused by gross negligence, and the jury so found; they might find exemplary damages. This is the law as settled by this court. Malone v. Murphy, 2 Kas. 250; Wiley v. Keokuk, 6 Kas. 94. But the negligence should be so gross as to amount to wantonness, to authorize exemplary damages.” See also, M. K. & T. Rly. Co. v. Weaver, 16 Kas. 456.
Counsel for the plaintiff in error criticise the word “licentious,” as inapt, in this connection. Even if this be conceded, we do not think it at all misleading. In the instructions given, the courtf followed the law as heretofore laid down by this court. We' see no reason to change the views hitherto expressed by us, and must therefore sustain the instructions.
It is claimed that the supreme court of the United States, in the cases cited, of Milwaukee Rld. Co. v. Arms, 1 Otto, 489, and Western Union Tel. Co. v. Eyster, 1 Otto, 495, has laid down a more stringent rule, and limits the recovery of exemplary damages to cases of intentional wrong, or its equivalent. Thus, in the first case, speaking through Mr. Justice Davis, it says: “Gross negligence is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by . the term ordinary negligence. But after all, it means the absence of the.care that was requisite under the circumstances. In this sense, the collision in controversy was the result of gross negligence, because the employés of the company did not use the care that'was required to avert the accident. But the absence of this care, whether called gross, or ordinary, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury inflicted. To do this, there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” And in the other, “There was an act of negligence entitling the plaintiff to compensatory damages; but there was nothing to authorize the jury to consider this omission as willful; on the contrary, the evidence rebuts every presumption that there was intentional wrong.” It may be, after all, that the difference is only one 'of definitions, and springs from an evident inclination of that court to ignore degrees of negligence as defined by most law-writers and courts. But be that as it may, we adhere to the prior rulings of this court, and hold that a case which discloses, on the part of the wrongdoer, negligence which is gross and wanton, is one in which the jury may award exemplary damages. The law, by tolerating this kind of punishment by way of damages, would check not merely intentional wrong, but gross, carelessness.
We do not see that plaintiff in error was prejudiced by the failure to submit to the jury the first six of the questions prepared by it. The questions that were submitted brought out all the facts material in the case. Neither do we think $800 an excessive allowance for exemplary damages. The purpose, of such damages being partially at least punishment to the wrongdoer, and to deter from similar wrongs, it must not be expected that they be merely commensurate with the damages actually done. Not that we would be understood as holding that even in a case properly calling for exemplary damages, the action of the jury is conclusive and beyond supervision. But simply this appears to us, that if in this case exemplary damages are proper, $800 therefor is not so large an allowance as to justify any interference with the verdict.
This brings us to the last, and to our minds really the only serious question; and that is, Was this case one in which exemplary damages were proper? Was there such gross negligence on the part of the plaintiff in error, such wanton and. reckless disregard of the rights of the defendant in error, as to'justify mulcting it in any inore than the actual damages its wrongdoing caused? The case stated generally is as follows: The plaintiff below, defen dant in error, desiring to go from Bosland, some forty miles ■west.of Salina, to that town, where he resided, asked the ticket and freight agent (himself having some doubts about the matter,) if he could ride to Salina on a freight-train then entering Bosland depot. The agent told him he could, and he bought a ticket, and started. The agent had misinformed him. The regulations of the company did not allow passengers to ride on that freight-train beyond Brookville, which was the end of that division of the road, where a change of cabooses (the only accommodation for passengers,) and conductors, was made; and at Bavaria, about half way between Brookville and Salina, the new conductor put him.off by force, as he refused to go without. According to the plaintiff’s testimony, nothing was said about these regulations until after the train had started from Brookville, while according to the defendant’s evidence the conductor notified him before, and told him he could not ride on the train. It was early in the evening when Bavaria was reached and the plaintiff expelled from the ears. The regulations prohibiting passengers from riding upon freight-trains east of Brookville, were made on January 1st 1875, and this transaction took place on the 2d of March thereafter. The ticket-agent who sold the ticket to Kessler, had not been informed of these regulations, in fact knew nothing of them until the middle of March, when he was told by a conductor that such had been made. Prior to the 1st of January 1875, passengers were carried in freight-trains east, as well as west, of Brookville; and up to the 2d of March the agent at Bosland, as he himself testified, had been in the habit of selling tickets to passengers for destinations east of Brookville by freight-trains. The conductor who put Kessler off the train, testified, that “the present rule came in force first January 1875. Conductors all obeyed it. I have put persons off train frequently. I never had any trouble before.” In reference to the expulsion, Kessler did not claim that any insults, indignity, or unnecessary violence accompanied it, though from the testimony of a friend traveling with him it would seem that the conductor was both rough and profane. Upon 'these facts, can a finding of gross negligence and violence be sustained? With much hesitation we are constrained to answer this question in the affirmative. It appears that prior to January 1st, the defendant had been in the habit of carrying passengers on freight-trains both east and west df Brookville. On that date a new regulation went into effect, prohibiting the carrying of passengers on such trains east of Brookville, but making no change west thereof. Doubtless the company had power to make and enforce such regulations. Doubtless there were good reasons for them, and for making the distinction between the distances east and west of Brookville, though nothing of the kind is disclosed by the record, and it there appears as simply an arbitrary rule. Having made such regulations, the first duty was to give public notice 0f them, and especially to see that the agents who by the sale of tickets were to make contracts with passengers for transportation, were fully informed of them. And such notice should have been given so fully, and so long before the regulations were to go into effect, as to make it reasonably certain that no passenger in the exercise of ordinary diligence would have been caught in such a predicament as the plaintiff in this case was. On the contrary, it does not appear that any public notice of the change was given. It does affirmatively appear that notice was given to the ticket-agent at Bosland, and that he knew nothing of the change for two months and-a-half after it was made, and then only as he heard it from the conductor of a passing train. Nor does it appear that this was the only instance. The agent says he was in the habit of selling tickets for such trains for over two months-after the change; and it would seem from the conductor’s testimony that he was in the habit during the same time of putting passengers off from his train. It doubtless occurred to the jury, that it was time that such habits were changed on the part of one or other of these agents of the defendant, and that their continuance for such length of time indicated gross negligence, a reckless indifference to the rights of passengers. A single instance would indicate negligence. Repeated instances imply something more. Such a rule ought also to be enforced by preventing passengers from taking passage on a freight-train, rather than by putting them off after half the journey is completed. In this matter we know there is a conflict in the testimony, but the plaintiff’s testimony shows no objection to his riding in that train until after it had started. It seems to us therefore, after a careful review of the evidence, and in matters of conflict giving full weight to plaintiff’s testimony, that it cannot be said that there was absolutely no case for exemplary damages, nothing which would justify a jury in awarding such damages; and therefore, although not impressed with this as a case of very aggravated wrong, we are constrained to affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action concerned litigation of the most deplorable character, and comprised transactions so disreputable that one could wish they had never occurred. The dishonest insurance agent, who figured in the proceedings in despoiling a woman of the greater part of $2,000 due her on an insurance-policy on the life of her dead husband, deserves lasting disgrace.
The case arose out of the following circumstances : On the 17th of September 1872, the defendant in error, then the wife of George Roberts, applied to the New York Life Insurance Company for a policy of $2,000 on the life of her husband. The first semi-annual premium on the policy was paid with a note for $37.96, and the agent of the company .executed therefor a receipt by which the policy was to issue within fifteen days, provided the application was approved at the home office. On the 23d of the same month, the insurance company issued to said defendant in error the policy applied for, and transmitted the same from the home office to their agent, Reuben Partridge, at Leavenworth, and the same was received by the agent a few days after the 23d, ánd during the life of the assured. Ou the 17th of October 1872, George Roberts died. Proofs of his death were forwarded by the agent Partridge to the home office for the company, upon blank proofs furnished from the office for that purpose. Sometime after the death of Roberts, the defendant intermarried with Mr. Theo. L. McGowan. On September 17th 1872, and for a long period before that time, the said Reuben Partridge was and had been the general agent of the insurance company for the states of Kansas and Nebraska, and the territory of Colorado, and other portions of the west. He was in charge of the general western agency of the company, with his general office at Leavenworth city, in this state, and he continued to be such agent until after the 7th of March 1873. On 28th February 1873, within the sixty days after the reception of the proofs of loss, a draft for the sum of $1,957.04, (that sum being the amount due on the policy less the second semi-annual premium,) was executed by the insurance company, payable to the order of the defendant in error, to settle and pay the amount of the policy; and the insurance company sent the draft forthwith to its agent Partridge, at Leavenworth, which was duly received by him. Partridge induced the defendant in error to believe that the policy of insurance was void, by his fraudulent and false representations to her that the company declined to pay anything, and that she had no valid or legal claim under the policy against the insurance company. About eight days prior to the sending of the draft of $1,957.04 from the home office to him to pay the policy, he induced the woman to employ one George H. English, an attorney-at-law, then living at Leavenworth, to attend to her demand against the company, and thereupon a contract was entered into between said attorney and the defendant in error, by which she was to allow the attorney all that he could recover, or that the company would pay on the policy, over $500. Upon the receipt of the draft of $1,957.04, the agent Partridge delivered the same to English. The latter indorsed it, under a power of attorney which he held, and paid the defendant in error $500, and retained $1,457.04. Through the statements of Partridge and English, the defendant in error was then induced to acknowledge in writing the receipt of the full amount of the policy, although she only received $500. The fact that the company had sent the draft to pay the policy was concealed from her by both English and Partridge. English commenced no suit for the money, wrote no letters to the company, gave really no services in the matter. The company never objected to the payment of the policy prior to sending the draft, and Partridge in all of his correspondence with the company assumed the policy was valid and binding. About a year after the death of her husband, the defendant in error received an insurance almanac, in which she saw that the insurance company printed her name as having received $2,000, the full amount of the policy, and thereupon she wrote to the company, and began to investigate the matter, as to what amount of money had been sent to their agent Partridge to pay to her. Having ascertained the deceit and fraud practiced upon her by the agent of the company, she commenced this action in the district court of Leavenworth county, on 10th March 1876, to recover the balance of the money, which she claimed due on the insurance policy, to-wit, $1,457.04, with interest thereon. The case was tried to the court, a jury being waived. Judgment was rendered in favor of the defendant in error for $1,780.01, and costs.
The insurance company object to the judgment, and claim that it should be reversed, and the company released from all liability, because, first, there was no proof that the agent of the company, who took the application for the policy of insurance, and issued the receipt to George Roberts for the note received in payment of the first premium, had power to make a contract to insure on credit, and the giving the note was no payment of any premium; second, that the findings of the court were against the evidence, and do not sustain the judgment; third, that the insurance company was not responsible for any of the fraudulent recommendations of its agent Par tridge, nor liable for his deceits, concealments, or false representations in the premises.
As to the first objection, it is sufficient to say that the application was made to and accepted by an authorized agent of the company. The note was given and accepted as payment. An agent of an insurance company whose business it is to solicit applications for insurance, and receive the first premiums, has the right to waive the condition requiring the payment in money, and to accept the promissory note of the applicant, or of a third party in lieu thereof. May on Ins. 345, 346; Mississippi Valley Life Ins. Co. v. Neyland, 9 Bush. (Ky.) 430, and authorities there cited. In this case however, there can be no question raised as to the authority of the agent to give the receipt, as the company issued the policy, sent it to their general agent Partridge, and when proofs of the death of Roberts were received, the company calculated the amount due on the policy after deducting the amount of the second semi-annual premium (stipulated for in the policy,) and sent the sum in a draft to their agent, payable to the order of the defendant in error, to whom the policy was delivered to be receipted and satisfied. The company thus fully ratified the action of its agent in accepting the note and executing the receipt for the policy, and in treating the policy as valid, and as if actually delivered before the death of the assured.
In regard to the second objection, after a careful perusal of all the evidence, we do not see that the district court could have intelligently arrived at any different conclusions of fact than those stated in the findings. The company never resisted the legality of the policy, promptly adjusted the demand, and Partridge had no valid reason to represent the policy void. The attorney recommended was an intimate friend of the agent — so much so that Partridge himself stated in his evidence that he frequently loaned him money, and when he had any legal business, English generally attended to it. Partridge in his communications to the company treated the policy as a valid one, and had no reason to think otherwise. English does not seem to have done anything in the case, other than to draw up a contract by which he was to have all of the money coming from the company except $500, and a power-of-attorney by which he could indorse the draft when received. When the draft came to Partridge, he retained it till Mr. English who was then temporarily absent from Leavenworth, returned, and then he delivered it personally to him. The defendant in error, as' a witness, gave the following account of the manner in which she was inveigled into the web spread by Partridge to entrap her, and of the mode adopted to keep her silent as to the money she was paid, while she was systematically robbed of the fruits of the policy under pretense of conferring great favors on her:
“About a week áfter the death of my husband, Mr. Roberts, I waited on Mr. Partridge, the old man, at his office in Laing’s building. I had never seen him, and I introduced myself to him. He said he was glad I had called; that he had often thought about me. Finally I asked him if he thought the company would pay the policy. He said no, he did not think they would. He said my claim was not a legal one. He said he would write to the company and see what they would do. He said in a week or so I could call at his office. A week or ten days after I called at his office, and he said he had not heard from the company. I said to him, ‘since I have been here I have thought that I had better write to the company.’ He said it was not necessary for me to write to the company; that he was here representing the company, and he said if I wrote to the company the letter would be sent back to him, and it would not benefit me any whatever. He-said, ‘I assure you I will do what I can for you. Since I saw you I have made a thorough investigation, and I find that your husband was a popular man, and a highly-respected citizen. If I had known it, I could have withheld the policy, and paid the premium for you; but I was true to the company, and sent it to New York.’ He said if I would call any time I was in town he might hear from the company. When he said it was no use for me to write to the company myself, I never gave it any more consideration. I called in a week or so, and he said he had heard from the company, and they refused to pay me; that my claim was not a legal one. He said that if Mr. Roberts- had only paid the small amount of twenty-five cents, it would have been legal, but as he had not it was not, and I had no claim on the company. I never called at Mr. Partridge’s office after that. About two months, or probably a little more, after I was in Mr. Partridge’s office, Mr. Partridge called on me at the Fort. He came up he said to see if I had taken any steps in that matter towards trying to get my money from the company. I said I had not. He said if I intended to take any steps in the matter I had better do so soon. He said after a certain length of time I could not do so. He did not say how long that time was. He asked me if there was any person I was acquainted with, any lawyer I wished to consult about it. I said, none in particular, that I knew no lawyers. He said such being the case, he would recommend George H. English; that he was an honest, trustworthy man, and could be relied on. I asked where his office was, and he told me. I said, if it would not be too much trouble I wished he would speak to Mr. English for me. He said he would. He then went away.
“ In about a week or so he came again, and said he had not seen Mr. English yet, but said that any time I would come down, if I would call at his office, he would take me to Mr. English’s office and introduce me to him. I said I would, and he went away. In'about half an hour after, he came back and said that as he was going home he had met Mr. English on the road, and he had come to the house with him. He said, ‘I want you to speak to Mr. English yourself; I will go out and ride round the fort in his buggy, and you can speak to him on the subject.’ He said, ‘I want you to promise me before I go not to say anything to Mr. English, that I have spoken to you about him. Speak to him as though speaking your own mind. Another thing I want you-to promise-me: whatever the company gives you, you will have to acknowledge the full amount of it; if you don’t, they will not pay you anything; you will have to acknowledge the receipt of the full amount, and if any friend asks you what they gave you, don’t tell them; tell them that the company satisfied you, but don’t say in what way, but you will have to acknowledge the full amount, whatever you get.’ I said, if that was a fact, I would have to acknowledge a lie, if I acknowledged the receipt of $2,000, and did not get it. He smiled, and said, ‘we have to do many things; half a loaf is better than no bread.’ He then went out, and Mr. English came in. I did not know what to say to him, but finally I said, ‘I suppose Mr. Partridge has mentioned my case to you, that I wished to see you.’ He said, yes, he knew something of it; that Mr. Partridge and him were speaking of it as they were coming up together from the city to the fort. I said if that was the case, it was not necessary for me to say anything more. He said no. I asked him if he was willing to take the case. He said ■ yes, but it was seldom he ever made anything out of such cases. He wanted to know how much I wished to make the claim. I said I thought I was entitled to the1 whole amount. He said I was not, because no money was paid, as Mr. Partridge said. I asked him if he thought the company would be willing to pay me half. He said "he thought not, he did not know but they would give me $500. He said he would try his best to have them, give me $1,000. He said if they gave me $1,000, he would keep $200 of it for his fees; if they gave me only $500, he would keep only $100 for his fees. A few days after that he came to my house and said the company would give me $500, but I would have to acknowledge the receipt of the full amount, otherwise they would not give me anything; that they were giving me that as a gift; that I was not entitled to anything. Of course I signed the papers, receipted for the full amount, and he paid me the $500 down. While I was signing my name to the receipt for the $2,000, 1 said to Mr. English I thought it was a strange way to transact business; I was signing my name to a receipt for $2,000, and getting only $500. He said he knew, but business was business. That was all I said to Mr. English.
“Ques — How did you come to sign the receipt on the back of the policy? Was it for the reasons you have stated? Ans.-Certainly; they said they would not give me anything unless I acknowledged the full amount.
u§. — When you signed it, it was under the representation, as you say, that the company would pay you $500? Ans.-He said the company would not give me any more than $500; that they were under no obligations to give me anything, because the claim was not a legal one. Mr. Partridge said all the time that the claim was not a legal claim.
Ҥ.-Had Mr. English told you the same thing? Ans.-Mr. English told me, and Mr. Partridge also.
Ҥ.-State whether it was by reason of your relying on the statements of Partridge and English, that you signed these , papers? Ans.-Certainly, I relied on what Mr. Partridge said. I supposed he spoke the truth. He said the claim was not a legal one, and it would be better for me to employ an agent.
“§'.-Mr. English paid you $500? Mms.-Yes, sir.”
Mr. English admitted that he only paid defendant in error $500; and all the incidents of the transaction fully supported the statements of Mrs. McGowan. That English and Partridge would deny any collusion between themselves in the matter, is to have been expected in view of their conduct. Parties guilty of such practices as herein set forth, are not accustomed usually to confess as to their own bad acts. “Like all other facts, fraud may be proved by circumstances. We should seldom, if ever, hope to prove, fraud by the admissions of a party; nor should we expect to find direct and positive evidence of the fact. Whatever circumstances, when proven, convince the mind that the fraud charged has been perpetrated, is all that is required. While fraud cannot be established by circumstances that merely raise a suspicion, yet, when they are so strong as to produce conviction of the truth of the charge, although there may remain some doubt, then it is fraud.” Bryant v. Simoneau, 51 Ill. 324. Tested by this rule, the findings are strongly sustained. But it is not necessary to go thus far. The findings of a trial court are conclusive, if there is any evidence to sustain them; and we cannot disturb them, where the findings are upon conflicting evidence. We hold therefore, that the findings of the court upon the questions of fact cannot be reversed by this court, as there was testimony clearly tending to establish the facts found. Hobson v. Ogden’s Exeoutors, 16 Kas. 388.
In conclusion, we are called to pass upon the third objection presented, and which has been so ably and forcibly urged in the argument of the learned counsel for plaintiff in error. This is really the main question in the case: Is the insurance company liable under the circumstances for the balance of the draft, that is, for the $1,957.04 originally due on the policy, less the $500 paid to defendant in error? or, must the owner of the policy be remitted for her remedy to a worthless insurance agent, and an insolvent attorney? If the, latter be the conclusion, then certainly the terse remark of the old English vicar, that “Law and equity are two things which God hath joined, but which man hath put asunder,” would have some foundation in truth. Fortunately, no such reproach can, in this case, be brought against our jurisprudence. Nor need we seek any new principle of the law to enforce the liability of the insurance company. It is our comfort to stand super antiquas vias. Nearly two hundred years ago it was decided by Holt, C. J., in the ease of Hern v. Nichols, 1 Salkeld, 289, that the merchant was responsible for the deceit of his factor, though not criminaliter, yet cimiliter; “for seeing somebody must be a loser by this deceit, it is more reason, that he that employs and puts a confidence in the deceiver, should be a loser, than a stranger.” Mr. Waite states the law as follows: “It is a universal rule, based upon principles of policy, propriety, and justice, that if a principal puts his agent in a condition to impose upon innocent third persons, by apparently pursuing his authority, the principal will be bound by his acts, and he must lose, in preference to such third persons.” Story says: “It is a general doctrine of law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent (unless indeed he has authorized or cooperated in those acts or misdeeds,) yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligence, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them.”
In the case at bar, Partridge was the general agent of the insurance company. He had charge of the business in two states, and several territories. He collected money for premiums, solicited insurance, by his own efforts, and through sub-agents, transmitted the premiums to the company in New York city, appointed sub-agents, kept a record of the policies issued in the agency, received the drafts or checks for losses within his territory, secured the policies receipted, when paid, and forwarded them to the company, and generally had the management of all the business of the company within the states and territories under his control. He was the person to whom the defendant in error had the right to apply for the payment of her policy. He was the person who received the draft with which to pay it. He was the person who should have informed her of the action of the company, and of its recognition of her rights, and made the payment of the sum due. He was acting within the general scope of his authority. If the cpmpany had sent to their agent the $1,957.04 in currency, with which to pay ■the policy, and this agent had himself retained all but $500, upon the plea to the beneficiary thereof that this sum only had been transmitted him, and the company would pay •no more, would it be contended that if such beneficiary accepted the $500 and receipted the policy, relying solely on the false representations and fraud of the agent, she could not recover the balance of the sum of the company ? If the agent had forged the name of the payee to the draft, and having colléeted the amount thereof, and appropriated all of it but $500 to his own use, and had delivered the $500 to the defendant as the proceeds of such draft, would it be claimed by counsel that the policy had been paid, and the company relieved from all responsibility? We think in the reason of things, both of these questions would be answered in the negative. The company did not pay the loss by merely sending its draft or check of $1,957.04 to its agent. The company had to pay the money to the party. If the agent retained any part of it, the part thus retained was still unpaid — still remained due. The fact that, by collusion between Partridge and English, the woman was induced to permit the money to go into the hands of English, does not materially change the principle contended for. The denial of the validity of the policy, the introduction to the attorney, the recommendation of his honesty and ability, the making of the contract, the power of attorney, and the delivery of the draft to English, instead of the woman, were all means adopted for the sole purpose of cheating the policyholder out of the money retained from her. This roundabout way was evidently artistically planned by Partridge, to lull the suspicions of his victim, and to obtain the policy receipted, to •return to the company. It is also likely that he thought that the measures adopted by him in the transaction would conceal his own criminality, and relieve himself and the company from further payment. The company is as much responsible for the action of Partridge, as if he had himself drawn the money on the draft, and used it for his own benefit. For his conduct under these circumstances, the company must suffer the loss — not the person, who trusted the authorized agent empowered to pay the claim. “It is more reason, that he that employs and puts a trust and confidence in the deceiver, should' be a loser, than a stranger.” It is not necessary that the company, or even Partridge, should have received any of the money from English, or any benefit therefrom. If the agent deemed it best to place in other hands than his own, the proceeds of his imposition, the company, for whom he is acting, is not thereby relieved of liability. The company is not bettered by such action, and the conduct of the agent is the more censurable, as he has neither the excuse of his necessities, nor the motive of cupidity. If the action of the agent is to be attributed to his general viciousness, rather than sudden temptation, the reason is stronger for the accountability of the company, because the company has no legal or moral right to give influence, position, and power to men, as its agents, to deal with others in its behalf, who are generally depraved and untrustworthy. If however it be conceded, that the agent Partridge in doing the acts compained of, was not in fact directly the agent of the insurance company,. still, the company would be held liable, not however upon the rule that the agent acted for the company in that particular transaction,'but because he was employed by the company in that character of business, and was so held out as a person authorized and fully to be trusted. “ When the agent in such a case does an act which is apparently within the general scope of his authority, although not so in fact, if the principal were not held liable for the act, a third person, who had reason to believe that the agent was reliable, and possessed authority in the particular matter from the general character of his employment, might suffer loss; hence the law holds the principal liable upon the ground that he, rather than a third person equally innocent, should suffer.” Dougherty v. Wells, Fargo & Co., 7 Nev. 368; Clark v. Metropolitan Bank, 3 Duer, 248.
We do not think that the other exceptions taken in the proceedings demand any'consideration, and hence, upon well-settled principles, and the strongest equity, we hold that the defendant in error can recover. The judgment must therefore be affirmed.
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Marquardt, J.:
This is Larry Jackson, Jr.’s second appeal. In the prior appeal, Jackson v. U.S.D. 259, 268 Kan. 319, 995 P.2d 844 (2000) (Jackson 1), the Kansas Supreme Court remanded the case to the trial court for a factual determination.
Jackson, a middle school student, attended a mandatory physical education class in the school gymnasium. After performing the required gymnastics, a student asked the teacher if the students could use a springboard to touch the rim of the basketball goal. The teacher consented. Jackson ran and launched off the springboard towards the basketball goal. Jackson’s feet went out from under him and he landed on his back on a mat. Jackson’s arm struck the edge of the springboard, which caused a compound fracture of both bones in his forearm.
Jackson sued Unified School District 259 (District) for negligence. The District filed a motion for summary judgment based on K.S.A. 75-6104(o), the “recreational use” exception to the Kansas Tort Claims Act (KTCA). The trial court granted the motion. Jackson appealed.
Because the Kansas Supreme Court held that it is possible for a gymnasium to fall within the recreational use exception, it remanded the case “for a factual determination of whether the school gymnasium is intended or permitted to be used for recreational purposes.” 268 Kan. at 333.
On remand, the District filed a motion for summary judgment. Jackson filed a motion for partial summary judgment and argued that K.S.A. 75-6104(o), as interpreted by the Kansas Supreme Court in Jackson I, violated his equal protection and due process rights under the Kansas and United States Constitutions. The Attorney General intervened in the case pursuant to K.S.A. 60-224(a)(1) and K.S.A. 60-1712 to argue the constitutionality of K.S.A. 75-6104(o).
The trial court granted the District’s motion for summary judgment and denied Jackson’s motion. Jackson timely appeals.
Section 1 of the Fourteenth Amendment to the United States Constitution provides in relevant part:
“No State shall malee or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Jackson cites three sections from the Kansas Constitution Bill of Rights under which he claims that his rights have been violated.
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Kan. Const. Bill of Rights, § 1.
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.” Kan. Const. Bill of Rights, § 2.
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Kan. Const. Bill of Rights, § 18.
When the constitutionality of a statute is challenged, the appellate court has unlimited de novo review. Injured Workers of Kansas v. Franklin, 262 Kan. 840, 844, 942 P.2d 591 (1997). The constitution ality of a statute is presumed and all doubts as to its validity are resolved in favor of constitutionality. Before determining that a statute is unconstitutional, the statute must clearly appear to violate the Constitution. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
All parties to this appeal agree that in analyzing the constitutionality of this statute, the rational basis standard should be used. Under the rational basis standard, the law will withstand a constitutional challenge even if similarly situated classes of individuals are treated differently as long as there is some reasonable relationship to a valid legislative objective. Franklin, 262 Kan. at 847. This analysis requires a finding of a valid State interest and a reasonable relationship between the legislation and that interest.
The parties disagree on what constitutes a reasonable relationship between the legislation and the State’s interest. The Attorney General argues that Jackson must “negate every conceivable basis” of the legislation. Jackson argues that the Attorney General misinterprets the case law. We agree with the Attorney General that under the rational basis standard, those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. See Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 263, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).
Jackson concedes that the State has a valid interest in the legislation; however, he argues that the Kansas Supreme Court’s interpretation of K.S.A. 75-6104(o) will cause increased litigation because liability will have to be determined on a case-by-case basis. The District responds that a case-by-case approach to liability determination will be less expensive. Litigation costs exist irrespective of where the courts draw the line between a tort that is compensable and one that is not.
Furthermore, in Jackson I, the Kansas Supreme Court stated:
“The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be hable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of litigation. The benefit to the public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The public benefits from having a place to meet with others in its community. In the case of an indoor gymnasium, the public benefits from having a place to participate in recreational activities when the weather outside is wet or cold.” 268 Kan. at 331.
There is a valid State interest in this legislation. There is also a rational connection between the valid State interest and the legislation. We hold that K.S.A. 75-6104(o) is constitutional.
Next, Jackson argues that K.S.A. 75-6104(o) violates his due process rights because the statute does not provide a right for the student to seek redress for injuries caused by the negligence of teachers or coaches.
The Attorney General and the District argue that Jackson failed to raise the due process argument below and is, therefore, precluded from arguing it on appeal. Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. Ruddick v. Boeing Co., 263 Kan. 494, 498, 949 P.2d 1132 (1997).
In his supplemental brief, Jackson argues that the due process argument was implicit in his equal protection argument before the trial court and that his argument addresses the denial of the fundamental right of full access to the courts. Appellate courts will address a constitutional argument for the first time on appeal if it is necessary to serve the interests of justice or prevent the denial of a fundamental right. In re 258 Kan. 254, 261, 900 P.2d 813 (1995).
Jackson’s due process argument is not properly before this court and the exception to the rule in M.M.L. does not apply in this case. A fundamental right as set forth in the Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of life, liberty, or property without due process of law. U.S. Const. Amend. XIV, § 1.
Jackson asserts that the KTCA took away his right to seek recovery for simple negligence. It is true that the recreational use exception is a change from the general rule of liability found in K.S.A. 75-6103; however, governmental immunity was a part of the common law at the time the Kansas Constitution was adopted. Brown v. Wichita State University, 219 Kan. 2, 5, 547 P.2d 1015 (1976). This immunity applied to school districts. See McGraw v. Rural High School, 120 Kan. 413, 243 Pac. 1038 (1926). While it appears that the legislature has failed to provide a remedy for simple negligence in this case, Jackson has failed to establish there ever was such a remedy.
Finally, Jackson argues that the trial court erred in granting the District’s motion for summary judgment and finding the recreational use of the gymnasium was beyond incidental.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
K.S.A. 75-6104(o) merely requires that the location be “intended or permitted to be used . . . for recreational purposes.” The Kansas Supreme Court noted in Jackson I that “[t]he injury need not be the result of ‘recreation.’ ” 268 Kan. at 326. The minimum amount of recreational use must be something more than incidental. 268 Kan. at 330.
This court in Wright v. U.S.D. No. 379, 28 Kan. App. 2d 177, 179, 14 P.3d 437 (2000), addressed whether the recreational use exception in K.S.A. 75-6104(o) applied to a wrestling room. The Wright decision was issued after Jackson I. In Wright, the denial of the defendant’s motion for summary judgment was based on the recreational use exception, and the court held the defendants could not be exempt from liability because the wrestling room was not outdoors. The Court of Appeals rejected that approach in applying the rule in Jackson I, which held the wrestling room could be an “open area” as contemplated in K.S.A. 75-6104(o). 28 Kan. App. 2d at 179-80.
The Wright court did not remand the case because there was sufficient evidence in the record on appeal to support summaiy judgment.
“Along with physical education activities during the school day, the wrestling and weight rooms have been utilized by the public for weightlifting, aerobics, and wrestling activities. The gymnasium has been used by the public for kids’ wrestling, drill team, professional wrestling, twirling, alumni basketball, tournaments, and pep rallies. It is the school district’s general policy that unless an organized school activity is utilizing the aforementioned areas, they are open to the public. When a school activity is occurring in one area, the other areas are simultaneously open for public use. Further, the wrestling room is obviously the location where wrestling practice is held. Being a member and practicing with the school wrestling team is a noncompulsory, extracurricular activity which, unlike compulsory physical education, is considered a recreational activity.” Wright, 28 Kan. App. 2d at 180.
Similar facts are found in the present case. The District’s motion for summary judgment submitted the following:
“9. During the 1994-95 school year, the Hamilton Middle School gymnasium was used by the public. The Wichita Police Department had a substation located at the school, and the police officers used the gymnasium during non-school hours for recreational activities such as basketball. AYSO soccer groups were allowed to use the gym during bad weather. Church groups in various basketball leagues would use the gymnasium for tournaments on Friday evenings and/or weekends. The Emmanual Baptist Church, located directly across the street from Hamilton Middle School, also used the school’s gymnasium from time to time. YMCA-sponsored activities took place in the Hamilton Middle School gymnasium after school hours, including arts, crafts and cheerleading. There were also after-school activities sponsored jointly by the City of Wichita and USD 259 to help care for children after school had been dismissed. Costs for these activities were paid by tlie city of Wichita.”
Jackson opposed the District’s motion for summary judgment but agreed with the above facts. It is clear that the room in the present case was used by community groups for recreational purposes beyond incidental use.
Just as the court in Wright held as a matter of law, a room with similar characteristics qualified for the recreational use exception. We hold that the room in this case qualified for the recreational use exception.
Affirmed. | [
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Johnson, J:
Michael Scott Johnson appeals the district court’s order allowing a Kansas Division of Vehicles hearing officer to reconsider and amend Johnson’s driver’s license suspension after the statutory deadline to appeal such an administrative order. We reverse and remand with instructions to reinstate the original administrative order.
Following an arrest for driving under the influence (DUI), Johnson failed a blood alcohol test. After receiving the law enforcement officer’s certification of test failure and suspension of driver’s license form, Johnson properly requested and received an administrative hearing on May 19, 1999. That date, the hearing officer issued an administrative order, making findings adverse to Johnson. The order specified Johnson’s driver’s license was suspended for 30 days and restrictéd for an additional 330 days (30/330). The document specifically advised Johnson he had 10 days from May 19th to petition for review with the district court.
No appeal was taken from the administrative order. On June 11, 1999, the Director of Vehicles issued a driver’s license suspension notice to Johnson, subtitled “ORDER.” It indicated the suspension was from May 19 to June 17, 1999, and the restrictions were from June 18, 1999, to May 13, 2000.
On June 25, 1999, the Kansas Department of Revenue (KDR) filed a motion for reconsideration with the hearing examiner. The motion alleged Johnson had a prior DUI diversion in July 1995 and the suspension should have been for 1 year. Johnson objected to the reconsideration. On August 23, 1999, a telephone conference hearing was conducted, and the hearing officer issued an amended order designating a 1-year suspension. The following day, the Director of Vehicles issued a driver’s license withdrawal notice indicating a suspension from May 19, 1999, to May 19, 2000.
Johnson effected judicial review of the amended administrative order. In April 2000, the district court issued its memorandum decision, finding in favor of KDR. Johnson timely appeals.
The sole issue raised on appeal is whether the hearing officer had the authority to reconsider the May 19th administrative order. Johnson frames the issue as jurisdictional. Whether the hearing officer had jurisdiction to reconsider the order is a question of law over which this court has unlimited review. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). KDR disputes that the issue is jurisdictional but agrees the issue on appeal is legal in nature and subject to de novo review.
The district court found KDR’s motion for reconsideration “was nothing more than a motion to correct an illegal disposition,” and, therefore, the hearing officer did not lose jurisdiction to correct the illegal suspension. It is unclear how the renaming or recharacterization of KDR’s pleading supported the trial court’s ruling. KDR also asserts it was merely seeking correction of an illegal order or of a clerical mistake. This is not a criminal case in which jurisdiction exists to correct an illegal sentence at any time. See K.S.A. 22-3504. Even in the criminal arena, the State is barred from subsequently challenging a sentence based on a stipulated but erroneous criminal histoiy. See, e.g. Thompson v. State, 25 Kan. App. 2d 659, 660, 967 P.2d 361 (1998). Here, the 30/330 suspension order was not illegal; it was the statutorily mandated sanction for a first-time offender. KDR wanted to revisit the factual issue of Johnson’s driving history.
K.S.A. 2000 Supp. 8-259(a) provides for judicial review of an alcohol-related driver’s license suspension, following an administrative hearing pursuant to K.S A. 2000 Supp. 8-1002. The petition for review shall be filed within 10 calendar days after the effective date of the order. K.S.A. 2000 Supp. 8-259(a); K.S.A. 2000 Supp. 8-1002(o). K.S.A. 2000 Supp. 8-259(a) specifically makes the review subject to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et. seq.
There is no provision in K.S.A. 2000 Supp. 8-259 or KJRA specifically authorizing a request for reconsideration. The Kansas Administrative Procedure Act (KAPA) does provide a procedure for the reconsideration of agency decisions prior to judicial review. K.S.A. 2000 Supp. 77-529. However, KAPA “applies ‘only to the extent that other statutes expressly provide that the provisions of [the] act govern proceedings under those statutes.’ K.S.A. 77-503.” Reifschneider v. Kansas State Lottery, 266 Kan. 338, 343, 969 P.2d 875 (1998) (Davis, J., concurring). The relevant statutes here do not incorporate the use of KAPA. Therefore, Johnson argues the right to have judicial review precludes KDR’s use of a motion for reconsideration. However, the KJRA does discuss the effect of a petition for reconsideration on the time to appeal. K.S.A. 77-613. The implication is that a request for reconsideration is permissible.
Ironically, both parties cite In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984), to support their respective positions. That case is not directly on point because there the administrative reconsideration occurred while the matter was pending on appeal with the district court. The precise holding that disposed of the specific facts in City of Shawnee was:
“[W]hen an administrative board acts in a quasi-judicial capacity, as in the instant case, and enters a final order or judgment, its jurisdiction to reconsider or change such order or judgment ceases from and after the time a valid appeal has been perfected; the jurisdiction of the board remains suspended during the pendency of the appeal.” 236 Kan. at 15.
Johnson believes the underlying rationale of City of Shawnee is that “[t]he right of appeal implies a final order which is no longer open for rehearing or reconsideration by the administrative body.” 236 Kan. at 14. He avers the specific statutory right to appeal the hearing officer s suspension makes it a final order which is no longer open for agency reconsideration. KJRA indicates permissive reconsideration is not precluded. We find that it is permissible to petition for reconsideration of the administrative order during the 10 days following the effective date of the order.
KDR reads City of Shawnee as granting an administrative agency the right to reconsider its rulings at any time prior to the perfection of an appeal to the district court. Since Johnson did not perfect an appeal of the original administrative order, agency jurisdiction to reconsider the suspension order continued unabated by the time to appeal. KDR opines that jurisdiction continues, absent an appeal, until the delay in seeking reconsideration becomes unreasonable or unduly prejudicial to the licensee.
KDR further argues that, even if the original suspension order is deemed a final order, it has the power to reconsider its actions because its jurisdiction is “continuing in nature.” Warburton v. Warkentin, 185 Kan. 468, 476, 345 P.2d 992 (1959). KDR cites several examples of its continuing jurisdiction over drivers’ licenses in general and Johnson’s driver’s license in particular, e.g., reinstatement and return of the license following suspension. The proffered examples are all administrative functions; the suspension proceeding was a quasi-judicial function. It is obvious the legislature did not intend continuing ministerial duties to obviate “ ‘[f]inal agency action’ ” in quasi-judicial matters. See K.S.A. 77-607(b).
On a broader scale, KDR asserts it has inherent or implied power to reconsider suspension orders, including the right to revisit substantive matters. For authority, KDR cites Pitts v. Kansas Dental Bd., 267 Kan. 775, 987 P.2d 348 (1999). In Pitts, the Kansas Supreme Court held that the mere absence of language in the Kansas Dental Act, K.S.A. 65-1421 et. seq., authorizing reinstatement of a dentist’s previously revoked license did not reflect the legislative intent to permanently bar the Dental Board from readmitting such dentists into the profession. 267 Kan. at 777. However, the Dental Board was not relitigating the facts which prompted the original revocation. It is inconceivable our legislature promulgated KAPA, KJRA, and K.S A. 2000 Supp. 8-259 with the intention that KDR would retain inherent power to retry driver’s license suspension hearings at will.
Further, KDR contends its position is logical because a licensee has the same right to seek reconsideration. KDR suggests it would, as a matter of fundamental fairness, consider a licensee’s complaint as to the length of suspension even after the appeal time had run. Although we do not doubt KDR’s sense of fair play, the law does not provide a licensee any post-appeal redress in the event KDR does not feel benevolent. “The time for taking an administrative appeal, as prescribed by statute, is jurisdictional, and delay beyond the statutory time is fatal to an. appeal.” State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, Syl. 1, 880 P.2d 783 (1994).
KDR does not believe Johnson should be permitted to complain about the corrected suspension order, because neither Johnson nor his attorney apprised the hearing officer of the prior diversion. The hearing is conducted by the Director of the Division of Vehicles or the representative of the Director. K.S A. 2000 Supp. 8-1002(k). The division is the official repository for all offenses under the motor vehicle drivers’ license act. K.S.A. 2000 Supp. 8-253. KDR cites no authority requiring a licensee to self-report his or her driving record to the official custodian of that record.
Both parties proffer other arguments we need not address to reach our decision. We believe, based on a fair reading of City of Shawnee and the procedural provisions of the KJRA, the hearing officer’s May 19, 1999, administrative order was a final agency action. As such, KDR had 10 days in which to either request a reconsideration from the hearing officer or to effect judicial review of the order. KDR’s motion for reconsideration was untimely and the hearing officer was without jurisdiction to amend the suspension order.
Reversed and remanded with instructions to reinstate the original, May 19, 1999, administrative order. | [
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Vieux, J.:
Meyer Land & Cattle Company (Meyer) appeals from the trial court’s dismissal of its action for failure to state an actionable claim against the Lincoln County Conservation District (Lincoln) and its directors in their individual and supervisory capacities and the Kansas State Conservation Commission (Commission). We affirm.
Meyer built a lagoon on a plot of land contemplated for use as a cattle yard. On October 2, 1998, the Lincoln board of directors sent a letter to the Kansas Department of Health and Education (KDHE) expressing a suspicion that the lagoon was leaking water. They were concerned that catde waste could contaminate the local groundwater. Lincoln requested that the KDHE conduct its own percolation test before Meyer was cleared to use the land for cattle.
Lincoln, for reasons not given, sent copies of the letter to every conservation district in Kansas, to assorted State administrative agencies, and to various elected representatives, including Kansas’ United States Senators and Representatives. Meyer proffers that a total of 122 persons or agencies received copies of the letter.
On December 16, 1999, Meyer filed a petition, listing the following nine counts:
I. Action outside the scope of statutoiy duties;
II. Abuse of power;
III. Misstatement of fact;
IV. Misrepresentation;
V. Interference with business;
VI. False light;
VII. Defamation;
VIII. Failure to carry out duties in a reasonable manner and in good faith; and
IX. Failure to comply with statutory, regulatory, and constitutional duties.
Imbedded in the claim of failure to carry out its duties were an allegation of civil conspiracy and an alleged equal protection violation.
On May 17, 2000, the trial court dismissed all counts. The court found the essence of the action was libel, as all claims stemmed from a single written communication. Because a 1-year statute of limitations applies to libel, K.S.A. 60-514(a), the court concluded all claims were time barred. Meyer appeals, essentially claiming the court dismissed the case without allowing meaningful discovery which would have allowed it to show why the statute of limitations did not apply.
In reviewing a trial court’s decision to dismiss a petition for failure to state a claim, an appellate court scrutinizes the petition itself to determine whether, in the light most favorable to plaintiff, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Colombel v. Milan, 24 Kan. App. 2d 728, 729, 952 P.2d 941 (1998).
However, when a complaint establishes on its face that the applicable statute of limitations has run on one or more claims, those claims are subject to dismissal. See Turner and Boisseau v. Nationwide Mut. Ins. Co., 944 F. Supp. 842, 844 (D. Kan. 1996) (construing Fed. R. Civ. Proc. 12[b][6]). In determining whether a plaintiff timely raised his or her claims, the court will look through the form to the substance of each cause of action. Taylor v. International Union of Electronic Workers, et al., 25 Kan. App. 2d 671, 678, 968 P.2d 685 (1998), rev. denied 267 Kan. 892 (1999).
Contrary to Lincoln’s arguments on appeal, it is not strictly germane whether Meyer pleads torts unrecognized in Kansas. If, on the facts pled in the petition, Meyer is entitled to relief under any valid legal theory, the action may proceed. Jack v. City of Wichita, 23 Kan. App. 2d 606, 608, 933 P.2d 787 (1997).
Analyzing the entire pleading, we discern three distinct causes of action: defamation, tortious interference, and civil conspiracy. Meyer also asserts on appeal that there is present a claim based upon federal equal protection rights. Meyer raises a number of other counts set out as independent torts which are, in essence, one or more elements of the core claims. The misstatement of fact, misrepresentation, and false light claims are restatements of the defamation count. The accusations of action outside the scope of statutory duties, abuse of power, failure to carry out duties in a reasonable manner and in good faith, and failure to comply with statutory duties are basically restatements of his tortious interference count. These claims are merely derivative of the core claims and, to the extent they are actionable at all, depend upon the validity of the main causes of action.
The court dismissed the entire action solely upon the finding that the statute of limitations for the core libel action had lapsed. As a result, we must determine whether the trial court correctly applied the corresponding 1-year period of limitations to every cause of action. If one or more causes of action do not spring directly from the alleged defamatory act, the trial court prematurely dismissed the case, and a remand is required.
Normally, an appellate court will affirm where it is convinced the trial court reached the right result for the wrong reasons. See TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 257, 898 P.2d 1145 (1995) (appellate court affirmed where trial court used erroneous reasoning to reach proper result). In the context of liberally construed, notice-oriented pleading, however, we will not look for alternative reasons to support the trial court’s conclusion. As a result, potential defenses under the Kansas Tort Claims Act, K.S.A. 75-6101 el seq., and Lincoln’s claims of qualified immunity for its individual board members are not relevant at this time. They are more in the nature of affirmative defenses and ordinarily require the finder of fact to resolve certain factual issues. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 888, 9 P.3d 1251 (2000) (qualified immunity is an affirmative defense requiring plaintiff to show defendant violated a clearly established constitutional right). The trial court is in a better position to evaluate the applicability of such issues.
We turn to the defamation count and its derivative claims. Lincoln argued, and the trial court found, that Taylor, 25 Kan. App. 2d 671, applied and all of Meyer’s claims were time barred by the 1-year statute of limitations on defamation.
In Taylor, the defendant, a former employer of the plaintiff, had written plaintiff s current employer alleging that the plaintiff was mentally unstable. The plaintiff brought a defamation claim and a claim for tortious interference, both based solely on the content of the letter. The period of limitations for defamation had lapsed, although the 2-year period of limitations for tortious interference had not. See K.S.A. 2000 Supp. 60-513(a)(4); K.S.A. 60-514(a).
The trial court struck the defamation claim but allowed the tortious interference claim to proceed to jury trial. The jury found in favor of the plaintiff. Our Court of Appeals concluded that the action was, at heart, one of defamation. Accordingly, it remanded with directions to strike the jury’s finding of tortious interference: “[The] plaintiff will not be permitted to escape the bar of the statute of limitations by calling a defamation action a tortious action for interference with a business advantage.” 25 Kan. App. 2d at 680-81.
Although Taylor specifically analyzes the relationship between tortious interference and libel, the rationale applies equally to other counts clearly derivative of the core defamation claim. Here, it is apparent on the face of the petition that Meyer has raised multiple claims that Lincoln knowingly communicated false information. These misrepresentation-based claims all rest upon the core claim that the letter is a he, all are essentially allegations of defamation, and all are similarly time barred.
As a result, under Taylor, the 1-year statute of hmitations pertaining to defamation bars the claims for defamation, misstatement of fact, misrepresentation, and false light.
We turn next to Meyers tortious interference claim. The requirements to show tortious interference with an existing or prospective business relationship are: (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate cause of defendant’s misconduct. Macke Laundry Service Ltd. Partnership v. Mission Assocs., Ltd., 19 Kan. App. 2d 553, 561, 873 P.2d 219, rev. denied 255 Kan. 1002 (1994).
Taylor is directly on point. In Taylor, the court noted that on the facts presented the statements would have to be false in order for tortious interference to be indicated. “In the final analysis, the success of plaintiff s lawsuit rests on whether the statements in the letter are true or false. If they are true, plaintiff has litde to complain about.” 25 Kan. App. 2d at 678. Similarly, if in fact Lincoln’s statements are true, Meyer can proceed only if he can show that Lincoln committed misconduct by communicating the truthful statements to KDHE. Odierwise, Meyer has no addressable claim.
Meyer has not provided any relevant law supporting its position that Lincoln was barred from communicating with KDHE. In fact, the regulations pertaining to county conservation districts contem plate close cooperation among the various State and local agencies involved in environmental management. See, e.g., K.A.R. 11-7-7 (KDHE has direct role in reviewing conservation district’s overall pollution management plan). Further, KDHE itself is responsible for establishing the standards for livestock waste control systems. K.A.R. ll-7-14(h). If Lincoln’s statements are true, it appears Meyer in fact possessed a lagoon which failed minimum water quality standards. Why Lincoln communicated this fact to an array of government and administrative entities is unexplained, but Meyer has not linked that dissemination to any particular harm.
Generally, when powers are expressly conferred on an officer or governmental board, the power is implied to take such reasonable means as may be necessary for effective exercise of the powers conferred and discharge of the duties imposed. Edwards County Comm’rs v. Simmons, 159 Kan. 41, 53, 151 P.2d 960 (1944). There is no indication the legislature would consider Lincoln’s request for an independent test inappropriate where it was made in the context of cooperatively managing water quality in the district. Meyer has not adequately pled a breach of duty.
Even if inappropriate, Lincoln’s request to KDHE for testing did not result in actionable tortious harm in the context of tortious interference. Meyer has not pled specific interference with a particular business relationship. See Macke, 19 Kan. App. 2d at 561 (plaintiff must show it was reasonably certain to recognize an identifiable future economic benefit). Rather, Meyer is asserting general damage to its reputation as a business. This sort of general public stigma is what the tort of defamation is meant to address.
Meyer attempts to rehabilitate its tortious interference claim by noting that it is a business entity, rather than an individual. As a result, Meyer argues, tainting of its business reputation is, in essence, a tortious interference with all of its business relationships and directly depletes its goodwill. Meyer has advanced no case law supporting its distinction, and the argument is not convincing. Meyer must still plead a specific business expectancy in order to move the claim from the realm of defamation to the realm of tortious interference. Additionally, Meyer’s argument does not address the reliance on the same false statements supporting the def amation claim and does not distinguish Taylors holding. See 25 Kan. App. 2d at 678-81.
We conclude Meyer s claims for abuse of power, failure to carry out statutory duties in good faith, and failure to comply with statutory duties are, in essence, incomplete restatements of his tortious interference count, which is in turn derivative of the defamation count. All are time barred under Taylor.
Turning now to Meyer’s conspiracy claim, Meyer alleges the individual members of Lincoln’s board of directors conspired on the above counts. Elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984). In order for civil conspiracy to lie, the claim must base itself on a valid, actionable underlying tort. 234 Kan. at 967; Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 476, 620 P. 2d 837 (1980). The court dismissed Meyer’s petition based solely on the running of the statute of limitations for defamation. The issue is whether a tort that is time barred as a procedural matter may nevertheless form the basis for alleging harm in a civil conspiracy claim.
Kansas has not addressed this issue directly. In Knight, the court affirmed the dismissal of a number of substantive tort claims based on the lapse of the statute of limitations for libel and appeared to dismiss the plaintiffs accompanying conspiracy claims as well, without comment. See 5 Kan. App. 2d at 482-84 (court affirmed dismissal of untimely defamation count against another defendant, but did not reinstate claim of civil conspiracy against defendant upon remand). Although one may imply that Kansas would consider a time-barred tort unqualified to form the basis for civil conspiracy, Knight did not explicitly make this holding.
Other jurisdictions are split. In Chevalier v. Animal Rehabilitation Center, Inc., 839 F. Supp. 1224 (N.D. Tex. 1993), the court noted that Texas considered the statute of limitations to be merely a bar to recovery, rather than a substantive defense attacking the merits of the case—the wrongful act still existed. As a result, the underlying bad act could support a conspiracy claim even where the statute of limitations had run on that act. 839 F. Supp at 1232-33. In Texas, civil conspiracy is considered to be an action for personal injury to another and has an independent 2-year period of limitations. Stevenson v. Koutzarov, 795 S.W. 2d 313, 318 (Tex. App. 1990), writ den. (Jan. 30, 1991).
Other jurisdictions hold that where the underlying tort is barred by the applicable statute of limitations, the conspiracy itself is likewise barred. See, e.g., Flowers v. Carville, 112 F. Supp. 2d 1202, 1213 (D. Nev. 2000); Scholes v. American Kennel Club, Inc., 1999 WL 799532 (S.D.N.Y. Oct 07, 1999). The most convincing policy expression for this stance is found in Evans v. Philadelphia Newspapers, Inc., 411 Pa. Super. Ct. 244, 601 A.2d 330 (1991). This case addressed a related matter and was persuasive to the Taylor court. See Taylor, 25 Kan. App. 2d at 678.
“Our legislature has given torts short or long statutes of limitations for certain policy reasons. It is therefore clear that a longstanding policy exists in Pennsylvania to allow defendants in defamation cases an opportunity to make a prompt investigation of claims made against them while the evidence is still fresh in the minds of prospective witnesses. This is especially necessary for cases involving slander because the actual content of the statements could quickly fade from the minds of witnesses. Even where the case involves libel, it is still necessary to investigate the circumstances surrounding the making of the statement and it is crucial that it is done promptly.
“The reason behind the public policy requiring a one year statute of limitations for defamation exists whether the cause of action is for defamation or the gravamen of a cause of action for tortious interference with a contract relationship is defamation. Furthermore, in creating a cause of action for tortious interference with a contract, there is nothing to suggest that the courts intended that a claim which was basically one of defamation should be given a two year statute of limitations. [Citations omitted.]” 411 Pa. Super, at 249-50.
While civil conspiracy is a separate, actionable tort, in order to prove conspiracy, the plaintiff would also have to show the underlying tort was committed. Where the underlying tort is time barred, the focus shifts to the legislature’s reasons for limiting the time permitted to bring the underlying tort. In order to prove Lincoln conspired, Meyer would have to prove the underlying defamation. This cause of action is time barred for the reason stated earlier. Under the particular facts of this case, we believe that Meyer’s civil conspiracy count is also subject to the underlying statute of limitations for defamation. As a result, we affirm the trial court’s dismissal of this count.
Finally, Meyer claims it was denied equal protection.
In order to establish and to plead a violation of equal protection based on selective enforcement, plaintiff must show: (1) the person,, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999).
Meyer contends that the claim contained in count VIII of the petition is a claim of damages for a denial of equal protection. The count itself is entitled “Failure to Cariy Out Duties in Reasonable Manner and in Good Faith.” The paragraphs contained in count VIII allege that the board of directors failed to act in a reasonable manner and in good faith. Meyer contends that this was done through the board’s failure to discuss the matter with plaintiff, to apprise themselves of the actual facts, to notify plaintiff of the fact that the alleged defamatory letter was sent, and that Meyer was, without elaboration, treated differently. Meyer cites no law in its brief to support the contention that this particular count is pled as a cause of action for a denial of equal protection, nor does the petition contain any notation that this is a claim for a denial of equal protection. Even the prayer of the petition fails to mention any claim for a denial of equal protection. The prayer only aslcs for damages for failure to act in good faith and failure to carry out its duties in a reasonable manner. Further, although not absolutely required—but notable by its absence—in this particular case, nothing presented in the body of the petition, the prayer of the petition, or in Meyer’s brief, even mentions an action pursuant to 42 U.S.C. § 1983 (1994).
The petition at hand is fatally flawed, even under notice pleading requirements, as a claim for a violation of équal protection in that it fails to allege anyone similarly situated was treated differently. The petition only claimed that Meyer was treated differently, which is not in and of itself a violation of equal protection. The statement that Meyer was treated differently is almost surplusage and somewhat inexplicable given the fact that no other elements of a cause of action for violation of equal protection was stated. In essence, this count is clearly an allegation designed either to enforce Meyer’s theory of defamation to bolster its claim that defendants knew the statements in the letter were false or to re-plead its previous allegation of breach of duty. If Meyer intended to allege a claim for denial of equal protection, it should have done so and done so understandably.
K.S.A. 2000 Supp. 60-208(a)(l) requires a short and plain statement of the claim showing that the pleader is entitled to relief. However, traditional causes of action and rules for pleading causes of action still occupy an important position in law. Notice pleading did not do away with the traditional causes of action or the need to at least present the “bare bones” of the cause of action in the petition in a concise and understandable manner. The claim is to be provided by the petitioner and not by the supposition of the court.
While it is true that this court will not dismiss a pleading when any cause of action, mentioned specifically or not, is present in the allegations of tire pleading, this court cannot supply a cause of action when it is clear from reading the entire pleading that it was not meant to be pleaded and it is not contained in the pleading in any understandable form. The petition and the appellant’s brief set forth the gravamen of this count as being that Lincoln had a duty to investigate and “prevent the wrongs” which, in turn, it claims was caused by a false letter. This is not an equal protection cause of action.
As noted earlier, the trial court dismissed all plaintiffs claims solely on its finding that they were all barred by the 1-year statute of Kmitations for libel. This finding also applies to what Meyer proposes is an equal protection claim.
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Green, J.:
Scotty R. Donham appeals his convictions of 90 counts of sexual exploitation of a child. On appeal, Donham argues (1) that his convictions are multiplicitous; (2) that he was denied the right to a unanimous jury verdict; (3) that the trial court erred in failing to give the multiple counts jury instruction; (4) that the trial court erred in instructing on the definition of possession; (5) that the trial court created structural error when it instructed solely using the current version of the sexual exploitation of a child statute; (6) that the sexual exploitation of a child statute is facially overbroad in violation of the First Amendment; and (7) that cumulative trial error substantially prejudiced his right to a fair trial. We reverse and remand for a new trial.
After serving a search warrant at Donham’s residence on September 25,1998, the police discovered a computer and floppy disks containing sexually explicit images of children. The police learned about the images from John McCandless, Donham’s former roommate. While McCandless was in jail on a probation violation, he told police that Donham had child pornography stored on his computer and floppy disks. According to McCandless, Donham showed him pornographic images on the computer beginning with adult pornography and later more bizarre images including child pornography.
The computer and floppy disks seized from Donham’s residence were analyzed by a forensic examiner. The examiner discovered that most of the files were deleted before the computer and floppy disks were seized. However, the examiner was able to forensically access or recreate the deleted images contained on 18 floppy disks. In addition, the examiner was able to determine the dates the images were created (received via Internet Relay Chat), modified (altered or changed in some fashion), and last accessed (viewed or moved to another location). The images were created as early as December 1997 and were accessed as late as September 1998.
Donham was originally charged with 100 counts of sexual exploitation of a child based on 100 sexually explicit images of children stored on 18 floppy disks. The State later amended the complaint, reducing the number of charges to 90 counts of sexual exploitation of a child.
During his juiy trial, Donham’s theory of defense was that he was not the individual who downloaded and accessed the child pornography. Donham stipulated that the images depicted children under the age of 18. The State presented to the jury 100 sexually explicit images that were stored on 18 floppy disks.
The jury found Donham guilty of 90 counts of sexual exploitation of a child. He was sentenced to 52 months’ imprisonment on count one and 32 months’ imprisonment on count two, to run consecutive to count one. The sentences for the remaining counts were to be served concurrently with those for the first two convictions.
Multiplicity
Donham first contends that his convictions are multiplicitous because each floppy disk, rather than each image, should constitute one count of sexual exploitation of a child. Donham was convicted of 90 counts of sexual exploitation of a child based on images that were retrieved from 18 floppy disks.
Whether the charges filed against Donham are multiplicitous is a question of law over which this court’s scope of review is unlimited. See State v. Thomas, 24 Kan. App. 2d 734, 737, 953 P.2d 1043 (1998). Multiplicity involves “the charging of a single offense in several counts of a complaint or information.” State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). “The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights.” State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).
Kansas appellate courts have not previously addressed multiplicity in the context of convictions of sexual exploitation of a child. Accordingly, this appeal requires the court to construe the meaning of the sexual exploitation of a child statute and determine whether the State may charge a defendant for each sexually explicit image of a child contained on a floppy disk or whether the charges must be based on the number of floppy disks. Interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 2000 Supp. 21-3516(a)(2) prohibits the possession of
“any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct . . . .”
Only one previous case has construed the types of materials prohibited by the Kansas sexual exploitation of a child statute. In State v. Peltier, 249 Kan. 415, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992), Peltier was convicted of one count of sexual exploitation of a child based on possession of undeveloped photographic film. Eleven of the photographs printed from the film were introduced at trial, presumably because they constituted sexually explicit images of a child. On appeal, the Peltier court rejected the argument that the term “film” as used in the statute referred to a moving picture and not undeveloped still photographic film. 249 Kan. at 429-30. Significantly, although not an issue on appeal, Peltier was convicted of only 1 count of sexual exploitation of a child based on his possession of the roll of film, rather than 11 counts based on the number of sexually explicit exposures contained on the film.
Multiplicity of sexual exploitation of a minor charges was addressed in State v. Valdez, 182 Ariz. App. 165, 894 P.2d 708 (1994). In that case, Valdez delivered a roll of film to a store for development. After the film was processed, a store employee alerted police that the photographs might constitute child pornography, and the photographs were seized before Valdez returned to the store to claim them. Valdez was convicted of, among other offenses, five counts of sexual exploitation of a minor based on five pictures developed from the roll of film. The Valdez court found that possession of one roll of undeveloped film constituted possession of one visual or print medium and since Valdez possessed only one visual or print medium, four of the five convictions of sexual exploitation of a minor were multiplicitous. 182 Ariz. App. at 170. See State v. Huckins, 66 Wash. App. 213, 221, 836 P.2d 230 (1992) (“Possessing a single publication containing [several depictions of child pornography] cannot properly be characterized as a series of several distinct acts. The act of possessing such a publication is a single act.”).
Here, the State charged Donham with 90 counts of sexual exploitation of a child based on possession of “photograph[s], electronic image[s], computer hardware, software, floppy disk[s] or computer generated imagefs].” However, in considering the six different ways the State alleged that Donham violated K.S.A. 2000 Supp. 21-3516(a)(2), the statute does not support 90 charges. First, the images retrieved from the floppy disks were not photographs because they were not printed onto paper through a photosynthesis process. Second, the sexual exploitation of a child statute does not list possession of electronic images as a means of violating the statute. Third, the images do not constitute computer hardware because the images are not computer equipment or components. In addition, the State did not present evidence at Donham’s trial showing that the images were retrieved from computer hardware. Fourth, the images do not constitute software because the images are not programs or procedures associated with a computer system. Fifth, the images do not constitute computer-generated images. The term “computer-generated image” as used in the sexual exploitation of a child statute should be interpreted as encompassing any sexually explicit image of a child that is graphically made or created by using a computer. However, there was no evidence presented at Donham’s trial indicating that any of the images retrieved from the floppy disks were graphically made or created by using a computer. Moreover, the evidence presented by the State showed scenes of real children.
The only other way to justify charging Donham with 90 counts of sexual exploitation of a child is to interpret the statute as prohibiting possession of each sexually explicit image of a child stored on or retrieved from a floppy disk. Rules of statutory construction, however, prevent such an interpretation because reading the statute to prohibit possession of each sexually explicit image of a child retrieved from a floppy disk would be rewriting the statute to add a new element. “ The rule of strict construction means that ordinary words are to be given their ordinary meaning. Such a statute should not be read so as to add that which is not readily found therein.’ [Citation omitted.]” In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App. 2d 863, 868, 909 P.2d 673 (1995). Moreover, “criminal statutes must be strictly construed in favor of the accused.” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). Nevertheless, criminal statutes are not to be construed so strictly as to defeat the clear intention of the legislature. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
If the legislature had intended to criminalize possession of each sexually explicit image of a child contained on a floppy disk, the legislature would have included language such as possession of any image stored on or retrieved from a floppy disk as a means of violating the statute. This language is missing from K.S.A. 2000 Supp. 21-3516(a)(2).
As a general rule, a single wrongful act may not furnish the basis for more than one criminal prosecution. See State v. Perry, 266 Kan. 224, Syl. ¶ 6, 968 P.2d 674 (1998). Under K.S.A. 2000 Supp. 21-3516(a)(2), possessing a floppy disk containing one or more images of child pornography is a single act. As a result, possessing a floppy disk containing two or more sexually explicit images of a child cannot be divided into two or more distinct acts.
“When a statute is plain and unambiguous, we must give effect to the intention of the legislature, rather than determine what the law should or should not be.” Roderick, 259 Kan. at 110. The plain language of the sexual exploitation of a child statute prohibits possession of any floppy disk that contains a sexually explicit image of a child. Because the plain language of the statute does not criminalize possession of each sexually explicit image of a child retrieved from a floppy disk, the convictions are multiplicitous.
Multiple Acts
Next, Donham contends he was denied the right to a unanimous jury verdict for each alleged criminal act because the State introduced 100 allegedly sexually explicit images of children retrieved from the floppy disks but charged him with only 90 counts of sexual exploitation of a child. The State, on the other hand, claims that even though the jury was shown 100 images using a computer power point demonstration, only 90 images were submitted to the jury for consideration. The State insists that no questionable images as to whether an individual depicted in the image was underage were admitted into evidence to form the basis of the individual counts or for consideration by the jury in reaching a verdict.
State’s exhibit 22 consists of two sets of images with each set containing substantially the same images. The first set of images is a printed copy of the computer power point demonstration that was shown to the jury and includes 100 different images that are printed five or six per page. The second set of images consists of over 100 images printed one per page, including 99 different images and several duplicates of those images. One image is missing from the second set of images. If that image was included, then there would be 100 different images in the second set which are the same 100 images included in the first set.
The images are not individually labeled as separate exhibits but instead are merely identified on the first page of the first set of images as State’s exhibit 22. Moreover, there is no indication that some of the images included in State’s exhibit 22 were not admitted into evidence. Accordingly, the record does not support the State’s contention that only 90 different images were admitted into evidence as State’s exhibit 22. Finally, during oral argument, the State conceded that exhibit 22, containing the 100 different images, was admitted into evidence. Nevertheless, the State maintains that the mistake in admitting all 100 different images instead of only 90 different images was harmless. We disagree.
In multiple acts cases,
“ ‘the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.’ ” State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
Several recent cases have addressed jury unanimity in multiple acts cases. For example, in State v. Kinmon, 26 Kan. App. 2d 677, 678-79, 995 P.2d 876 (1999), the jury could have found Kinmon guilty of possession of drug paraphernalia based on either possession of a cigarette case or possession of a key holder. The trial court failed to instruct the jurors that all of them had to agree that the same underlying criminal act had to be proved beyond a reasonable doubt. On appeal, the Kinmon court noted that “[i]n voting to convict- Kinmon, different jurors could have relied on different acts.” 26 Kan. App. 2d at 679. Although Kinmon did not-request the appropriate instruction, the court relied on language in Timley and found clear error because there was no assurance that the verdict was unanimous. 26 Kan. App. 2d at 678-79. See State v. Wellborn, 27 Kan. App. 2d 393, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000) (reversing convictions of rape and aggravated indecent liberties with a child and remanding for a new trial based on trial court’s failure to instruct the jury that it must unanimously agree as to the specific act supporting the conviction for each count); Crutcher v. State, 27 Kan. App. 2d 674, 8 P.3d 1, rev. denied 268 Kan. 885 (1999) (holding trial court’s failure to give unanimity instruction violated defendant’s right to unanimous verdict); State v. Barber, 26 Kan. App. 2d 330, 988 P.2d 250 (1999) (reversing conviction of criminal possession of a firearm and remanding for a new trial based on trial court’s failure to instruct the jury that it must unanimously agree that the same criminal act was proved beyond a reasonable doubt).
Here, it is impossible to know which images constituted the basis of Donham’s convictions because he was convicted of 90 counts based on 100 different images admitted into evidence. Even if the jury believed at least 90 images violated the sexual exploitation of a child statute, there is no way to determine which images were utilized by the jury in convicting Donham. The trial court’s failure to give a unanimity instruction is especially problematic because the 90 verdict forms did not specify to which image each form referred.
When faced with allegations of multiple acts of sexual exploitation of a child based on possession of sexually explicit materials, the State may charge multiple counts but must elect the medium for which adequate proof has been presented or give a unanimity instruction such as PIK Crim. 3d 68.09-B (1999 Supp.). No amount of analysis would ever permit this court to say that the jury unanimously agreed to the underlying acts supporting each of the 90 counts. Under these circumstances, the trial court’s failure to give a multiple acts instruction constitutes reversible error, requiring that Donham’s convictions be set aside.
Although we are reversing and remanding this case for a new trial, we feel compelled to address some of Donham’s other contentions. We hope by addressing these other contentions, it will help the parties in the retrial of this case.
Tury Instruction—Multiple Counts
Donham next asserts that the trial court erred in failing to give PIK Crim. 3d 68.07 (1998 Supp.), which instructs the jury to decide each charge separately. Donham concedes that he failed to request the instruction at trial but argues that the trial court’s failure to give the instruction allowed the jury an opportunity to convict him of all 90 counts based on a finding that the State only proved one or several of the charges.
The standard of review of this issue was noted in State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997):
“[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.”
The trial court provided Donham’s jury with one elements instruction to cover all 90 counts:
“In Counts One through Ninety, the defendant is charged with the crime of sexual exploitation of a child. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, Scotty Donham, did then and there unlawfully, willfully, and feloniously possess a photograph, computer hardware, software, floppy disk, or computer-generated image, in which a visual depiction of a child under 18 years of age is shown engaging in sexually explicit conduct; and
“2. That the defendant did so with the intent to arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child, or another, and
“3. That this act occurred on or about the 4th day of September, 1997 through the 22nd day of September, 1998, in Butler County, Kansas.”
In addition to this instruction, the jury was given 90 verdict forms, one for each count. However, the verdict forms failed to specify to which image the count referred.
Donham contends that based on the single elements instruction and the lack of specificity in the verdict forms, the jury could have found each element was satisfied for one image and, based on that finding alone, could have convicted him of the remaining 89 counts. Donham insists that such a problem could have been avoided had the trial court given the multiple counts jury instruction, which provides:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” PIK Crim. 3d 68.07 (1998 Supp.).
Our Supreme Court has addressed the failure to give a multiple counts jury instruction only a few times. In each case, the court found that although the trial court erred in failing to give the mul tiple counts instruction, the errors did not prejudice the defendants. For example, in State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255 (1975), the trial court gave elements instructions that combined charges of aggravated robbery committed against different victims. Cameron held that the jury was not misled into believing a finding of guilty on one count of robbery dictated a finding of guilty on the other robbery counts and, as a result, the defendants were not prejudiced. 216 Kan. at 650-51. See State v. Mitchell, 262 Kan. 687, 696-97, 942 P.2d 1 (1997) (holding the defendant was not prejudiced by the trial court’s failure to give the multiple counts instruction because the juiy received separate verdict forms and separate instructions for each count); State v. Kelly, 262 Kan. 755, 764-65, 942 P.2d 579 (1997) (holding the trial court’s failure to give the multiple counts instruction was harmless error because the jury was given separate verdict forms and it was clear that the jury weighed the evidence in reaching the verdicts).
Here, although the trial court erred in failing to give the multiple counts jury instruction, the error was harmless. Donham was not prejudiced by the trial court’s failure to give the instruction because it is unlikely the jury was misled into believing a finding of guilty on one count dictated a finding of guilty on the additional 89 counts. Moreover, the juiy was given separate verdict forms for each count. As a result, the trial court’s failure to give the multiple counts jury instruction constitutes harmless error.
Nevertheless, when this case is retried, the trial court should give a multiple counts instruction. We further note that it would be helpful to appellate review if the verdict form specifies to which disk each form refers. Finally, under the notes section of PIK Crim. 3d 68.08, the PIK Committee recommends that when a defendant is charged with multiple counts in the same information, a jury should be submitted a separate verdict form specifying the crime charged as to each count of the information.
Jury Instructions
Donham next argues that the trial court created structural error when it instructed on the elements of the current version of the sexual exploitation of a child statute when some of the counts were allegedly committed before the current version became effective. In die amended information, the State alleged that the offenses were committed “on or about September 4, 1997, through September 22, 1998.” This time frame was based on the dates the images were modified and last accessed.
Donham claims that because some of the images were not accessed after July 1,1998, the date the current version of the statute became effective, the trial court should have instructed using the prior version of the statute as to offenses that occurred before July 1, 1998. Donham contends that because the 1998 amendments to the statute broadened the acts for which a defendant can be held hable, it is not possible to determine if the jury would have found him guilty under the earlier, more restrictive version of the statute had the trial court instructed using the previous version of the statute for those offenses committed before July 1,1998. According to Donham, the jury instruction resulted in verdicts tainted by structural error.
Before the 1998 amendments became effective, the sexual exploitation of a child statute prohibited possession of material depicting a real child under 16 years of age engaged in sexually explicit conduct. K.S.A. 21-3516. The statute was amended in 1998 to broaden the range of prohibited materials by increasing the age requirement of the individual depicted in the sexually explicit material to under 18 years of age and omitting the requirement that the child be “real.” As a result, the 1998 amendments altered the statute by adding children ages 16 and 17 to the class of victims covered by the statute.
This change in the age requirement impacts the instant case because the jury was instructed solely using the elements from the current version of the statute. Specifically, the juiy was instructed that to convict Donham of sexual exploitation of a child, the State was required to prove, among other elements, that he possessed material “in which a visual depiction of a child under 18 years of age is shown engaging in sexually explicit conduct.” (Emphasis added.)
The present case is unique in that the images were retrieved from floppy disks which stored the dates the images were last ac cessed. This is unlike other child pornography cases involving medium such as photographs or videotapes, because in those cases it is generally not possible to ascertain the dates when those medium were last viewed. Here, some of the images stored on the floppy disks were viewed only before July 1,1998, based on the last-access dates associated with those images. Because certain images were not viewed after July 1,1998, Donham claims that he did not possess the images when the 1998 amendments were effective and, as a result, the earlier, more restrictive version of the statute applies as to those counts. On the other hand, the State argued at oral argument that possessing material depicting a child engaged in sexually explicit conduct is a continuing offense.
K.S.A. 2000 Supp. 21-3106(9) provides that “[a]n offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated.” Stated another way, a continuing offense is committed “when the course of the prohibited conduct, or the accused’s complicity in the crime, has terminated. To constitute a continuing offense, it must plainly appear in the statute defining such offense that there is a clear legislative intent to make the prohibited conduct a continuing offense.” State v. Palmer, 248 Kan. 681, Syl. ¶ 1, 810 P.2d 734 (1991).
Kansas appellate courts have infrequently addressed whether an offense constitutes a continuing offense. In State v. Jones, 13 Kan. App. 2d 520, Syl. ¶¶ 2-3, 775 P.2d 183 (1989), the court held that the offenses of welfare fraud and theft of public assistance benefits are continuing offenses. The Jones court distinguished State v. Gainer, 227 Kan. 670, 674, 608 P.2d 968 (1980), which held that “theft by obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use or benefit of his property ... is not a continuing offense.” Jones noted that welfare fraud and theft of public assistance benefits involved the wrongful taking of benefits on a monthly basis over a period of time, unlike the theft in Gainer, which involved a single taking. 13 Kan. App. 2d at 524-25. See Palmer, 248 Kan. 681, Syl. ¶ 2 (holding neither theft nor conspiracy to commit theft were continuing offenses); State v. Cotner, 87 Kan. 864, 877, 127 Pac. 1 (1912) (holding practicing medicine without a license is not a continuing offense because the statute penalizes each specific act of practicing medicine without a license).
Because sexual exploitation of a child committed by possessing material depicting a child engaged in sexually explicit conduct requires a specific “intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another,” this crime is not a continuing offense. As a result, if the evidence shows in the retrial of this case that one or more of the 18 floppy disks were accessed only before July 1, 1998, the trial court should instruct the jury using the statute that was in effect before July 1, 1998, as to those disks.
Constitutionality of K.S.A. 2000 Supp. 21-3516
Next, Donham maintains that K.S.A. 2000 Supp. 21-3516 is unconstitutional. Although we do not agree with Donham’s argument, we determine that we need not reach this issue because we are reversing on other grounds. When there is a valid alternative ground for relief, an appellate court need not reach the constitutional challenges to a statute. Rust v. Sullivan, 500 U.S. 173, 207, 114 L. Ed. 2d 219, 111 S. Ct. 1759 (1991) (Blackman, J„ dissenting); International Ass’n of Machinists v. Street, 367 U.S. 740, 749, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961).
Definition of Possession and Cumulative Error Arguments
Finally, because we have granted a new trial on the jury unanimity issue, we need not address Donham’s definition of possession and cumulative trial error arguments.
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Beier, J.:
Plaintiff-appellant Kelly S. Geren seeks reversal of summary judgment granted in favor of his brother, defendant-appellee Kimet M. Geren. The district court found Kimet had the necessary authority under a durable power of attorney to terminate a farm lease with Kelly.
In the event that Kelly is successful on his appeal, Kimet cross-appeals the district court’s other rulings that he failed to obtain valid service of the notice of termination on Kelly and that he lacked authority to terminate the lease as a successor trustee.
The lease in question began in 1988 as an oral farm lease of 250 acres between Kelly and his parents, Donald and Marjorie Geren. Donald and Marjorie later established a hving trust and named themselves as co-trustees; they named Kimet as successor trustee in the event of “the death, disability or resignation of either or both” of them “so long as [he] is able to continue active service as Trustee.” Under the trust instrument, the trustee had the express power to lease real estate. The trust instrument also provided:
“6.2 SUCCESSOR TRUSTEE: After the death of the Grantor, then KIMET M. GEREN shall serve as Successor Trustee for the sole purpose of making final distribution of assets as provided in paragraph number 4.3 (above) and paying final bills.
“7.1 ADMINISTRATION: In the administration of the Trust Estate the Trustees shall have all of the rights with respect to the Trust Property as they would have if legal title and ownership thereof were vested in such Trustees in their individual capacity.
“7.17 SUCCESSOR TRUST POWERS: All powers given to the Trustee by this instrument are exercisable by any Successor Trustee who has been appointed under this instrument in paragraph 6.2 and who is working in such appointed capacity.”
On the same day that the trust was created, Marjorie executed a durable power of attorney naming Donald as her attomey-in-fact and Kimet as her successor attomey-in-fact. The pertinent provisions of the power of attorney read:
“I, MARJORIE L. GEREN (Principal) . . . hereby designate DONALD R. GEREN (Agent) [or, in the event of his inability or unwillingness to serve, KIMET M. GEREN] . . . my Attorney in fact and Agent . . . in my name and for my benefit, to exercise or perform any act, power, duty, right or obligation that I now have or may acquire, relating to any person, matter, transaction or real or personal property, now owned or later acquired by me, including the following powers:
“To maintain, repair, improve, invest, manage, insure, rent, lease, encumber, mortgage, pledge, gift, and in any manner deal with any real or personal property, tangible or intangible, or any interest therein, that I now own or may hereinafter acquire, in my name and for my benefit, upon such terms and conditions as my [attomey-in-fact] shall deem proper;
“This is a Durable Power of Attorney. This power of attorney shall not be affected by my subsequent disability or incapacity or lapse of time. At this time, however, I am a person having capacity to contract and am of sound mind and strength of body and therefore plan to continue management of my personal and/or business affairs so long as I am able.”
Donald and Marjorie later transferred the farmland leased by Kelly to the trust. Donald died 9 months after the transfer.
Kimet assumed the role of Marjorie’s attomey-in-fact in June 1997 because her health had been deteriorating. She had never been declared incompetent, incapacitated, or disabled.
On January 26, 1998, Kimet mailed to Kelly, by certified mail, a notice of termination of the farm lease, along with a proposed cash rent lease. He had signed the notice of termination as “Du rabie Power of Attorney for Trust.” The notice provided the oral lease would terminate on March 1, 1998. The notice arrived at Kelly’s house, but Kelly refused to accept it when he learned it was from Kimet. The notice was returned to Kimet as refused on January 28, 1998.
Sometime in the next 2 days, Kimet placed a copy of the notice of termination and the proposed lease on the door of a trailer Kelly owned and kept in a machinery shed on the farmland at issue. Kelly lived elsewhere, but he stayed in the trailer periodically when working on the land. A third brother, Kevin, also would stay in the trailer off and on. Kevin removed the document from the door, and, without reading it, put it on the counter top in the trailer. He does not recall whether he ever talked to Kelly about finding it.
Kelly found the notice of termination in a drawer or cabinet in the trailer on February 8, 1998. As of that date, he had not prepared the land for a fall seeded crop. He also said he did not remember whether he ever talked to Kevin about the notice.
Marjorie died in March 1998.
Kelly filed suit against Kimet, alleging that Kimet was without authority to terminate the lease and that his notice.of termination and service thereof was unlawful. Kimet sought summary judgment, arguing that he had authority to terminate the lease and that he properly served valid notice of the termination. Kelly also filed a motion for summary judgment.
On the cross-motions, the district judge held: (1) The purported service of the notice by certified mail was invalid; (2) the purported service by posting the notice on the door of the trailer was invalid because Kevin was not Kelly’s agent for service of process, and Kevin’s receipt of the notice did not comply with K.S.A. 58-2510 because he did not reside in the trailer; (3) the date of Kelly’s receipt of the notice was February 8, 1998; (4) Kimet had no authority as successor trustee to terminate the lease because the successor trustee’s powers were for the sole purpose of making final distribution of assets; (5) Kimet had authority under the durable power of attorney to terminate the lease; (6) the effective date of termination was March 1, 1998; and (7) given the totality of the circumstances, Kimet substantially complied with the statutoiy requirements for service of the notice.
Authority Under Power of Attorney and Trust
Kelly argues that Kimet’s authority to act pursuant to the power of attorney was to arise only if and when Marjorie was found to be disabled or incapacitated and that genuine issues of material fact remained on whether such a finding had been made.
The legal effect of a written instrument is a question of law; this court has unlimited review of its resolution by the district court. In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996). If the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. In re Cherokee County Revenue Bonds, 262 Kan. 941, 953, 946 P.2d 83 (1997). Furthermore, questions of law are made to order for disposition by summary judgment. See K.S.A. 2000 Supp. 60-256(c); Jackson v. U.S.D. 2S9, 268 Kan. 319, 322, 995 P.2d 844 (2000).
“A power of attorney is an instrument in writing by which one person, as principal, appoints another as agent and confers upon such agent the authority to act in the place of the principal for the purposes set forth in the instrument.” Muller v. Bank of America, 28 Kan. App. 2d 136, 139, 12 P.3d 899 (2000). A durable power of attorney is “[a] power of attorney that remains in effect during the grantor s incompetency.” Black’s Law Dictionary 1191 (7th ed. 1999); see also K.S.A. 58-610 (defining durable power of attorney as one containing words showing principal’s intent for authority conferred to be exercisable notwithstanding principal’s subsequent disability or incapacity).
Marjorie’s power of attorney did not condition the attomey-infact’s authority on a finding that Marjorie had become disabled or incapacitated. To the contrary, it simply stated that the attorney-in-fact’s authority would not be affected by such an occurrence and that her plan was to continue managing her affairs as long as she was able. No finding of Marjorie’s disability or incapacity was necessary for the attomey-in-fact’s authority to arise. “ ‘[Tlhere is no room for construction of a power of attorney which is not ambiguous or uncertain, and whose meaning and portent are perfectly plain.’ ” Bank IV Olathe v. Capitol Fed’l Savings & Loan Ass’n, 250 Kan. 541, 549, 828 P.2d 355 (1992) (quoting 3 Am. Jur. 2d, Agency § 30, p. 534). Kelly’s argument is defeated by the plain language of the document.
Kimet understood the power of attorney to give him authority to manage all of his mother’s property, including the trust. The farmland had been transferred to the trust; it is unclear whether the oral farm lease had been formally transferred as well. The district judge concluded ultimately that the broad language of the power of attorney made the distinction meaningless, because it gave Kimet the authority to manage Marjorie’s personal assets as well as those held by the trust for her benefit. In die district judge’s view, the power of attorney enabled Kimet to terminate the farmland lease with Kelly.
For us, the critical fact is the placement of the subject real estate in the trust. Under K.S.A. 2000 Supp. 58-1204, Marjorie could not employ a durable power of attorney to delegate the entire administration of the trust to another. This was true even of Kimet, who, after succeeding his father, had become her co-trustee. The statute does not permit a surviving co-trustee or successor trustee in Marjorie’s position to override the deceased grantor’s choice of the person who next administers his or her assets, without following whatever procedure is set forth in the trust instrument itself.
We recognize that where, as here, the successor trustee named in the trust instrument and the attomey-in-fact to whom the surviving co-trustee would delegate are one and the same, the danger the statute seeks to neutralize is nonexistent. Still the principle is worthy of observance and protection. In many cases, the grantor’s choice and the surviving co-trustee’s or successor’s attomey-in-fact will not be the same. We do not want this case to provide a roadmap for one who seeks to defeat the grantor’s intention by means of a power of attorney. We therefore hold that Kimet lacked authority under the durable power of attorney to terminate the farm lease.
This holding requires us to evaluate Kimet’s independent authority as successor tmstee. He has cross-appealed the district judge’s finding against him on this issue. We agree with Kimet.
As stated above, Kimet was named as his father s successor trustee. He thus became his mother’s co-trustee as of the date of his father’s death, and he remained her co-trustee until her “death, disability, or resignation.” Under the trust instrument, the trustees had the power to make decisions on real estate, including its lease. Kimet, as at least co-trustee during his mother’s lifetime and possibly as sole successor trustee for each of his parents after her implicit resignation due to poor health, had the authority to terminate the oral farm lease to Kelly.
Kimet’s powers were not, as Kelly argues and the district judge agreed, limited to those listed in Paragraph 6.2 of the trust instrument, which restricted the successor trustee to “making final distribution of assets . . . and paying final bills.” When the trust instrument is read as a whole, it is evident those hmitations were not designed to arise until after the death of both of the original grantors. Marjorie did not die until March 1998. Until her death, she and Donald’s successor were responsible for administering the trust to provide for her. This is exactly what Kimet was attempting to do by terminating the oral lease and attempting to enter into a cash rent lease with Kelly.
Sufficiency of Notice
Kelly also argues the trial court erred in finding Kimet substantially complied with statutoiy requirements for the service of notice of termination of a farm tenancy. Whether notice of termination of a farm tenancy complies with the statute is a question of law. Buckle v. Caylor, 10 Kan. App. 2d 443, 444, 700 P.2d 979 (1985). This court’s review is therefore unlimited. See Hamilton v. State Farm Fire & Cos. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. 263 Kan. at 879. This court will presume that a statute was not intended to produce absurd consequences and that it has the most reasonable operation its language permits. Mendenhall v. Roberts, 17 Kan. App. 2d 34, 42, 831 P.2d 568, rev. denied 251 Kan. 939 (1992). Furthermore, this court will not give a statute an arbitraiy construction but will instead construe it in a manner to “advance the sense and meaning fairly deducible from the context.” 17 Kan. App. 2d at 42.
An initial matter requires brief discussion. Kelly spends an inordinate amount of time emphasizing that K.S.A. 58-2506(a) is applicable to this case, apparently believing the district judge incorrectly applied K.S.A. 58-2506(c). Our review of the record persuades us that the district judge did not make this mistake.
Subsection (a) of the statute governs when the tenant has neither planted a fall seeded crop nor prepared the ground for such. See Orebaugh v. Leatherwood, 27 Kan. App. 2d 730, 733, 8 P.3d 55 (2000). That is the situation here. In such a case, “notice to terminate . . . must be given in writing at least 30 days prior to March 1 and must fix the termination of the tenancy to take place on March 1.” K.S.A. 58-2506(a).
Kelly points out that he did not receive actual notice of the termination until he found the written notice in the trailer on February 8, 1998, 9 days short of the 30 days before March 1 that the statute requires.
K.S.A. 58-2510 provides:
“Notice as required in the preceding sections may be served on the tenant, or, if the tenant cannot be found, by leaving a copy thereof at the tenant’s usual place of residence, or by delivering a copy thereof to some person over 12 years of age residing on the premises, or, if no person is found upon the premises, by posting a copy of the notice in a conspicuous place thereon, or by registered mail, registered mail return receipt requested, or certified mail, return receipt requested, addressed to the tenant at the tenant’s usual place of residence.”
Kimet first attempted service by certified mail. Obviously, had Kelly accepted the certified letter when it was delivered to him, he would have received actual and proper notice under K.S.A. 58-2506(a) and K.S.A. 58-2510. Unfortunately, these statutes do not set forth the procedure to be followed when a tenant refuses the certified mail containing the notice.
The district judge attempted to fill this gap by looking to K.S.A. 60-303 in the general code of civil procedure. At the time, K.S.A. 60-303(b) provided that service could be obtained after a refusal of certified mail by sending “a copy of the process and petition or other document to be served to the defendant by ordinary, first- class mail. . . . Service shall be considered obtained upon the mailing by ordinary, first-class mail.” This section did not help Kimet because he did not follow Kelly’s refusal of the certified mail notice with service by ordinary, first-class mail.
The district judge also held that Kimet failed to comply with that portion of K.S.A. 58-2510 permitting service by delivery of a copy of the notice “to some person over 12 years of age residing on the premises, or, if no person is found upon the premises, by posting a copy of the notice in a conspicuous place thereon.” Although Kevin was over 12 years of age, he did not reside on the “premises.” In addition, the court apparently believed K.S.A. 58-2510 required that the posting of the notice must be on Kelly’s residence rather than on the farmland under lease.
Kimet argues that the “premises” to which K.S.A. 58-2510 refers is the leased farmland rather than the tenant’s residence. If this is so, and the door of the trailer constituted a conspicuous place on that land, Kimet’s second attempt at service on Kelly was valid and timely under K.S.A. 58-2506(a).
We are persuaded that Kimet is correct. The legislature’s use of both “premises” and “residence” in K.S.A. 58-2510 appears to have been deliberate. A review of the common definitions of these terms reinforces our experience that their meanings are distinct. Compare Webster’s Third New International Dictionaiy 1789 (3d ed. 1986) (“premises” equals “a specified piece or tract of land with the structures on it”); Black’s Law Dictionaiy 1199 (7th ed. 1999) (“premises” equals “[a] house or building, along with its grounds”); with Webster’s at 1931 (“residence” is “a building used as a home”); Black’s at 1310 (“residence” is “[t]he place where one actually lives, as distinguished from a domicile .... [a] house or other fixed abode; a dwelling”).
We are also satisfied that the trailer door, given the uncontroverted evidence that Kelly used it as his home away from home, was “conspicuous” under 58-2510. Kevin’s removal of the notice from the door and its subsequent temporaiy disappearance inside the trailer are matters for review and debate between Kelly and Kevin, but Kimet had already done his part to see that Kelly received the notice to which he was entitled under the statutes.
Because we dispose of this issue on the basis that valid service was obtained by posting the notice on the trailer door, we do not reach the district court’s application of the doctrine of substantial compliance. That analysis may be another correct avenue to the same result. Although we differ from the district judge on the proper path, we reach the same destination. Kimet had authority to terminate the oral farm lease, and his service of notice to Kelly was adequate as a matter of law. Summary judgment was appropriate. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997) (trial court’s reason for decision immaterial if ruling correct for any reason).
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Rulon, C.J.:
Defendants E-Z Pay Used Cars, Inc., (E-Z Pay) and Paul K. Colyer appeal the district court’s judgment, adjudicating default on contractual obligations relating to inventory financing of E-Z Pay’s vehicle dealerships. The defendants claim the court erred in interpreting the contract, in refusing to admit evidence favorable to the defendant, in refusing to permit a claim for punitive damages, and in denying defendant Colyer’s personal claim under the Kansas Consumer Protection Act (KCPA).
Plaintiff CIT Group/Sales Financing, Inc., (CIT) cross-appeals, claiming the district court improperly considered the terms of the sales presentation and the approval letter in defining the contractual obligations of the parties.
We affirm.
A detailed discussion of the underlying facts is not necessary to our resolution of the presented issues.
Contractual Obligations
Primarily, this case centers upon the contractual obligations of the parties under the “Floorplan Financing and Security Agreement” entered on December 10,1997. Interpretation of a contract is a question of law over which this court has unlimited review. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
Under the explicit terms of the contract, CIT was essentially given complete discretion in determining the amount of credit to extend under the floor plan agreement and in determining whether to extend credit at all. In return, the contract obligated E-Z Pay to provide CIT with a security interest in all collateral, whether existing or acquired in the future, including proceeds, accounts, contracts, insurance, chattel paper, instruments, documents of title, returns and repossessions, etc. E-Z Pay additionally promised CIT a power of attorney to execute notes, chattel paper, and financing statements related to E-Z Pay’s obligations to CIT, with the power to amend such documents improperly drafted by E-Z Pay.
E-Z Pay further agreed to hold its goods and proceeds from sales in trust for CIT to ensure that CIT’s rights in such collateral were not impaired, paying all taxes, fees, and assessments on such collateral and proceeds and carrying all risk of liability and loss. In doing so, E-Z Pay warranted the collateral would be free from encumbrances and security interests, except for interests of inventory financers.
Furthermore, E-Z Pay agreed to notify CIT of a sale of a secured unit and immediately pay the amount of debt attributable to that unit, as well as insuring the collateral against damage or theft and several other obligations. The contract further contains a choice of laws provision, applying New Jersey law to the interpretation and performance of the contract.
Based upon a strict interpretation of the contract, E-Z Pay bears all of the contractual obligations, CIT none. Hornbook law provides that a contract which purports to promise a specified performance but allows one party the discretion to determine whether to perform is only an illusory contract and unenforceable. See, e.g., Flight Concepts Ltd. Partnership v. Boeing Co., 819 F. Supp. 1535, 1553 (D. Kan. 1993), aff'd 38 F.3d 1152 (10th Cir. 1994) (Consideration is essential to a valid contract while mutuality of obligation is not unless the want of mutuality would leave one party without a valid or available consideration for his promise.); Bryant v. City of Atlantic City, 309 N.J. Super. 596, 620-21, 707 A.2d 1072 (1998) (adopting the Restatement [Second] of Contracts § 2, comment e (1979) definition of illusory contract). Consequently, if the contract arguably provided CIT the sole discretion to determine whether to extend credit and how much to extend, there was no enforceable contract between the parties.
However, courts must endeavor to sustain a fairly executed agreement between parties whenever possible, rather than seeking to defeat the parties’ intent by applying technical legal rules. See Weber v. Tillman, 259 Kan. 457, 463, 913 P.2d 84 (1996).
In order to enforce a contract, some courts have imposed a duty of good faith upon the exercise of discretion in performing the contract obligations. See, e.g., Bryant, N.J. Super, at 621 (“[T]he contingencies in the Redeveloper’s Agreement which plaintiffs assert make it illusory do not give MRI the unfettered discretion to terminate. This contingency now carries with it the court imposed ‘good faith’ requirement, such that MRI can terminate the agreement, based on the contingency of Section 4.3, only if the costs of remediation are objectively determined to be too high.”).
In Tymshare, Inc. v. Covell, 727 F.2d 1145, 1154 (D.C. Cir. 1984), the court, in part, said:
“Here, however, appellant does not rely solely upon the express conferral of a power to alter quotas, but also upon the expansive fashion in which that power is contractually described. The Compensation Plan states and reiterates that Tymshare may change the quota plan ‘within [its] sole discretion,’ [citation omitted]. But as the administrative law concept of ‘abuse of discretion’ suggests], [citation omitted], this phrase is not necessarily the equivalent of ‘for any reason whatsoever, no matter how arbitrary or unreasonable.’ ... It seems to us that the ‘sole discretion’ intended was discretion to determine the existence or nonexistence of the various factors that would reasonably justify alteration of the sales quota. . . . The company’s genuine determination that one or another of these factors exists can presumably not be questioned.”
Here, the financing contract implied an obligation for CIT to exercise its discretion in lending money in good faith. The district court, in the present case, was persuaded by Barkley Clark’s definition of “good faith” within the context of the Uniform Commercial Code (UCC), applying a subjective standard in determining whether a party operated in good faith. Our Supreme Court has held that a lender’s relationship with, a borrower is analyzed under a subjective standard of good faith, requiring merely honesty in fact. See Daniels v. Army National Bank, 249 Kan. 654, 658, 822 P.2d 39 (1991).
However, the imposition of a subjective standard of good faith does not imply that a party with discretion in the execution of its contractual obligations can escape liability by simply stating that it believed it was acting in good faith. Discretion must be applied honestly, which requires an objective determination of the motives governing the exercise of discretion. See Bryant, 309 N.J. Super, at 621; Tymshare, Inc., 727 F.2d at 1154.
“ ‘Good faith limits the exercise of discretion in performance conferred on one party by the contract. When a discretion-exercising party may determine aspects of the contract, such as quantity, price, or time, it controls the other’s anticipated benefits. Such a party may deprive the other of these anticipated benefits for a legitimate (or good faith) reason. The same act will he a breach of the contract if undertaken for an illegitimate (or bad faith) reason.’ ” Meiers Trucking Co. v. United Constr. Co., 237 Kan. 692, 701, 704 P.2d 2 (1985) (Holmes, J., dissenting) (quoting Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369, 372-73 [1980]).
Determining good faith inherently involves a question of fact regarding the reasonable expectations of the parties at the time of contract formation and the subsequent determination that the deprivation of the expected performance by the party wielding discretion is based upon an honest belief that circumstances provided an exception to performance that was within the reasonable contemplation of the parties. What constitutes a circumstance within the reasonable expectations or contemplation of the parties is an objective determination. The question of whether the parties believed that such a circumstance existed is a subjective determination. 94 Harv. L. Rev. at 390-91; see also St. Catherine Hospital of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 765, 971 P.2d 754 (1998) (“We agree that whether the good faith standard was met is a question of fact.”).
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).
Here, the district court determined the reasonable expectations of the parties contemplated financing for new, used, and rental vehicles to the credit limits proposed and approved in the sales presentation and conditional letter of approval. Based upon testimony from witnesses for both CIT and E-Z Pay, indicating that negotiations for the contract provided specific credit levels for new, used, and rental vehicles, which was not specifically disputed, the record provides substantial competent evidence for the district court’s determination of the contract expectations of the parties.
Importantly, the district court found that the floor plan agreement did not provide E-Z Pay with an absolute right to expect the lower limits provided in the sales presentation and the conditional approval letter, because the terms of the financing agreement allowed CIT to exercise its discretion in extending credit to E-Z Pay. Because the terms of a final contract control the intent of the parties over evidence demonstrating a conflicting intent, the financing agreement stands as substantial competent evidence to support the district court’s finding that CIT was justified in failing to provide financing as the exercise of its discretion dictated.
Ultimately, the district court found that CIT had exercised its discretion in good faith by refusing to advance credit against E-Z Pay’s used vehicle inventory. Clearly, CIT was not required to extend credit to a borrower who was in default on its existing debt. Furthermore, CIT was not required to extend credit upon collateral to which CIT did not have first priority.
In finding that CIT had exercised its discretion in good faith, the district court relied upon evidence that NationsCredit possessed a prior general security interest over E-Z Pay s collateral. Although CIT’s purchase money secured creditor status protected its advances to purchase inventory, CIT’s status as to trade-in vehicles obtained as proceeds from the sale of new vehicles was that of a general secured creditor. See K.S.A. 84-9-312(3) and Official UCC Comments §§ 3 & 8; N.J. Stat. Ann. § 12A: 9-312(3) (West 2001 Supp.).
We conclude CIT’s refusal to extend credit based on E-Z Pay’s used vehicles as collateral, while NationsCredit retained a prior general security interest in the used vehicles, was justified. To obtain priority over NationsCredit’s security interest, CIT could have bought NationsCredit’s interest in the collateral by paying E-Z Pay’s debt to NationsCredit. Clearly, CIT did exercise this option with respect to identifiable collateral on E-Z Pay’s lots.
As we understand, CIT claims that some of the debt owed by E-Z Pay to NationsCredit involved units that were not found within E-Z Pay’s inventory. E-Z Pay produced no evidence to dispute this claim. As a result, any debt transferred from NationsCredit to CIT as a result of CIT’s purchase of NationsCredit’s interest in such units would'be uncollateralized debt. CIT did not breach a duty of good faith when refusing to extend credit under such conditions.
Alternatively, CIT could have sought to obtain a subordination agreement from NationsCredit, granting CIT priority over any collateral in the event E-Z Pay defaulted on its debt obligations. This option was attempted by CIT on several occasions, as indicated by the facsimile documents sent to NationsCredit. NationsCredit, however, refused to execute a subordination agreement because its interest in E-Z Pay’s collateral would then be diminished. The fact that NationsCredit did not wish to lose its position with regard to E-Z Pay’s collateral does not indicate a lack of good faith by CIT.
An appellate court reviews the record for substantial competent evidence to support a district court’s factual findings; we do not reweigh the evidence or determine the credibility of the witnesses. See Sampson, 267 Kan. at 181; Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 Kan. 484, 496-97, 961 P.2d 696 (1998).
We firmly conclude this record provides substantial competent evidence to support the district court’s finding that CIT did not breach its duty of good faith when refusing to extend credit against E-Z Pay’s used vehicles.
Refusal to Admit Evidence
E-Z Pay claims the district court erred when refusing to allow a defense witness, Steven Bonner, to testify by telephone or to admit the deposition transcript of that witness. In reviewing a district court’s decision to exclude evidence, an appellate court reviews the record for an abuse of the district court’s discretion. See State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
E-Z Pay argues that all relevant evidence is admissible and that Bonner’s testimony was highly relevant to the breach of contract issue. See 60-407(f). However, the admission of relevant evidence is subject to statutory, constitutional, or judicial exclusionary rules. Divine v. Groshong, 235 Kan. 127, 130, 679 P.2d 700 (1984) (citing 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-407, Advisory Committee Notes to Laws of 1963 p.75 [1979]).
K.S.A. 60-460 prohibits the admission of out-of-court statements offered to prove the truth of the matter stated, unless the statements fall within a specific exception. One of those exceptions is an affidavit, the use of which is specifically provided for by statute. K.S.A. 60-460(b). E-Z Pay does not cite, nor does extensive statutory research provide, a statute permitting a party to replace a witness’ trial testimony as to a material issue with an affidavit.
Here, the statements within the proffered affidavit by E-Z Pay were designed to demonstrate CIT’s intent to completely buy out NationsCredit and to demonstrate that CIT poorly managed the E-Z Pay account, causing the accounting problems leading to E-Z Pay’s default. As such, the statements within the affidavit clearly were intended to be taken for the truth of the matters asserted. Hence, the statements were inadmissible hearsay.
Even if E-Z Pay had sufficiently demonstrated Bonner’s unavailability, the statutory exception from hearsay cited by E-Z Pay does not encompass affidavits but only depositions and prior testimony where the declarant was subject to cross-examination by a party with a similar interest and motive to that of the current party against whom the deposition or prior testimony is sought to be used. K.S.A. 60-460(c)(2)(B). An affidavit does not meet the requirements of this provision.
Under the circumstances, the district court did not abuse its discretion in refusing to admit Bonner’s affidavit.
The Punitive Damages Claim
Defendants next challenge tire district court’s refusal to permit an amendment of the cross-complaint for punitive damages. Generally, an appellate court reviews a district court’s decision regarding a motion for punitive damages for an abuse of discretion. See Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999).
Here, the district court dismissed E-Z Pay’s claim for punitive damages on two grounds. First, the court determined that, other than defendant Colyer’s personal claims for defamation, the action arose solely out of an alleged breach of a contractual relationship, which does not support a claim for punitive damages. In addition, the court determined that E-Z Pay was unlikely to prove by clear and convincing evidence that CIT’s actions were willful, wanton, fraudulent, or malicious.
In Kansas, punitive damages are not permitted for an action for breach of contract, standing alone. Farrell v. General Motors Corp., 249 Kan. 231, 247, 815 P.2d 538 (1991). Because this case was adjudicated solely upon a theory of breach of contract, the district court did not err in denying the defendants’ motion to amend their counterclaim to add punitive damages.
E-Z Pay does not raise the district court’s dismissal of its tort claims on this appeal, although mention of tortious conduct is made in its arguments on other issues. An issue not briefed, or incidently mentioned but not argued, is deemed abandoned on appeal. Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999); McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).
The KCPA Claim
Finally, E-Z Pay argues the district court erred in dismissing the Kansas Consumers Protection Act (KCPA) claim against CIT due to the fact that defendant Colyer s guarantee of performance under the contract was as an individual. This issue involves an interpretation of the KCPA, which is a question of law. The court’s review is plenary. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
According to K.S.A. 50-623(b), the KCPA is intended, in part, “to protect consumers from suppliers who commit deceptive and unconscionable practices.” “Consumer” is defined as “an individual or sole proprietor who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” K.S.A. 50-624(b).
In First Nat’l Bank of Anthony v. Dunning, 18 Kan. App. 2d 518, 524, 855 P.2d 493, rev. denied 253 Kan. 857 (1993), this court held that a gratuitous surety, who was supplying collateral for a business loan, was not a consumer within the meaning of the KCPA.
The KCPA’s protection is limited to individuals and sole proprietors who directly contract with suppliers for goods or services, and is not extended to individuals who promise performance of a corporation contracting with a supplier.
We conclude the district court did not err in holding the provisions of the KCPA inapplicable to defendant Colyer or to defendant E-Z Pay.
The Cross-Appeal
On cross-appeal, CIT argues the district court erred by admitting the sales presentation and letter of conditional approval to demonstrate the parties’ contract intent, in violation of the parol evidence rule.
Because we affirm the district court’s decision, this question is moot. See Shanks v. Nelson, 258 Kan. 688, Syl. ¶¶ 1, 2, 3, 907 P.2d 882 (1995). However, were this court to address the issue, the analysis found elsewhere in this opinion resolves this question as well. Evidence that is not inconsistent with the final articulation of the parties’ contractual intent does not violate the parol evidence rule. See Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984) (where parol evidence was not in conflict with the provisions of a quitclaim deed, it is held that evidence was properly considered to interpret the effect of the quitclaim deed). As a result the district court did not abuse its discretion in admitting the sales presentation and the letter of conditional approval.
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Knudson, J.:
Busby, Inc. (Busby) appeals the district court’s dismissal of its action against the Kansas Department of Agriculture (KDA). The central issue on appeal is whether K.S.A. 2-1205 is constitutional. The district court concluded Busby lacks standing to maintain its action and even if it does have standing, the statute is constitutional.
We conclude the district court erred in deciding Busby lacks standing; however, we agree K.S.A. 2-1205 is constitutional. Therefore, the decision of the district court is affirmed.
Busby is a Colorado corporation that formerly handled commercial fertilizer in Kansas and other states. In April 1994, Busby registered commercial fertilizer in Kansas. Under K.S.A. 2-1205, all individuals who have registered commercial fertilizer in Kansas must pay an inspection fee to the KDA due in January or July of the reporting year. In July 1994, Busby made a payment of $6,643.28 for inspection fees due for the January 1994 through June 1994 reporting period. Busby has not made any other payments. In October 1994, the KDA wrote Busby a letter requesting financial information for the years 1991 through 1993 in order to determine if Busby owed any fees for those years. Busby filed suit against the KDA in March 1995, alleging K.S.A. 2-1205 was unconstitutional and seeking an injunction to prevent further collection of inspection fees.
In March 1996, Busby informed tire KDA it had sold most of its assets to another company. The sale included Busby’s fertilizer business. After the sale, Busby was no longer engaged in the fertilizer business. In the sale, Busby retained the claim against KDA for recovery of inspection fees paid and also retained the liability to KDA for any inspection fees it might owe from past operations. At the time, the KDA indicated to Busby that “it appeared there were at least tens of thousands of dollars owing by Busby to the State of Kansas.”
In April 1996, Busby filed a motion to amend its petition to include a request for certification as a class, a claim for a declaratory judgment under K.S.A. 60-1701 et seq., a claim that K.S.A. 2-1205 was unconstitutional, a claim for injunctive relief pursuant to K.S.A. 60-907, and a claim for refund of all payments made pursuant to K.S.A. 2-1205. The KDA opposed Busbys motion to amend and sought dismissal of the case. The district court dismissed the case for lack of subject matter jurisdiction. It found Busby failed to make a timely claim under the Kansas Judicial Review Act, (KJRA), K.S.A. 77-601 et seq.
In Busby, Inc. v. Kansas Department of Agriculture, No. 78,499, an unpublished opinion filed April 23, 1999, a panel of this court reversed the district court, holding that an attack upon the constitutionality of a statute is not tantamount to review of agency action and the KJRA is not the exclusive remedy available to Busby. The Court of Appeals also addressed the issue of standing. It held that since Busby, by contract, remained liable for any past due fees, it had standing to pursue the claim.
On remand, the district court granted Busby s motion to amend. In March 2000, the KDA filed a motion to dismiss Busby’s amended petition. The district court granted the motion to dismiss in June 2000. It found Busby had no standing to challenge the constitutionality of K.S.A. 2-1205, and even if it did have standing, the statute was constitutional. Busby timely appeals both holdings.
THE ISSUE OF STANDING
We need only consider the standing issue under Busby’s claim for a refund of the $6,643.28 inspection fees paid in 1994. The district court found the claim was not properly before the court as the fees were paid without protest. Busby argues the district court erred because the commercial fertilizer act does not contain any procedure to seek a refund.
On appeal, the KDA relies upon Regency Park v. City of Topeka, 267 Kan. 465, 981 P.2d 256 (1999). In Regency Park, the plaintiffs sought reimbursement of stormwater utility charges that had been paid under city ordinances declared invalid. The district court, relying upon the “volunteer rule,” held the payors were not entitled to reimbursement. The “volunteer rule” provides that a party who, without mistake, fraud, or duress, voluntarily pays money on a de mand which is not enforceable against him cannot recover amounts paid. 267 Kan. at 468.
On appeal, the Supreme Court held, inter alia, that the district court properly granted judgment to the City based on the volunteer rule. 267 Kan. at 473. The court reasoned that although the payors complained about the assessments, payments were made without any verbal or written statement to the City that the payors intended to demand the return of the amounts paid. 267 Kan. at 475. The court noted that it would have been helpful for the payors to have begun an action to contest the validity of the ordinance, attempted to enjoin collection, attempted to broaden the terms of the appeal provision, or to have taken any action which would have put the City on notice that the money it was collecting was in jeopardy. 267 Kan. at 476.
More recently, the Supreme Court decided Bigs v. City of Wichita, 271 Kan. 455, 23 P.3d 855 (2001). In Bigs, the appellants challenged the City of Wichita’s charter ordinance permitting the assessment and collection of liquor license fees in excess of the fee allowed under state law. One issue was the standing of the license holders who had paid the license fee without protest. The court found the licensees did have standing and distinguished Regency Bark, stating:
“We concluded in the present case that the City did not have authority to continue charging more than the statutory liquor license fees after the amendments to K.S.A. 41-2622 became effective on July 1, 1988, and thus this case presents the other side of the Regency Park coin. The City’s charter ordinance would have been void rather than voidable and the City would have been collecting fees during the entire period for which Licensees seek refunds—from July 1,1988, through November 28,1995—pursuant to an ordinance that was neither valid nor binding. Thus, the Regency Park reasoning would not preclude refund of tire liquor license fees collected under a void ordinance. Licensees cite Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70 (1924), for the proposition that the volunteer rule has no application where the exaction was made without valid authority. In that case, the court stated: ‘The statute under which the tax was collected has been held to be unconstitutional, being an attempt by the state to tax property which is by the federal law exempt. [Citation omitted.] The plaintiff was entided to a return of his money unless his recovery was-prevented by purely procedural considerations.’ 115 Kan. at 669. After examining the various procedural considerations, the court affirmed the trial court’s judgment in favor of Salthouse. We note, however, that Salthouse made the tax payment under protest, and for that reason the payment was not voluntary. 115 Kan. at 672.
“Licensees direct the court’s attention to cases from other states’ courts holding that a license fee paid in order to do business is made under duress and, thus, involuntary so as to remove it from operation of the volunteer rule. They rely particularly on Five Boro Elec. Assn. v. City of N.Y., 12 N.Y.2d 146, 237 N.Y.S.2d 315, 187 N.E.2d 774 (1962), in which several hundred electricians were permitted to recover excess license fees that had been paid without protest. In an earlier case, the license fees for electricians had been held to be so excessive as to be unconstitutional. Licensees also single out the case of State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247 (1947), in which the Missouri court stated:
‘The refund of taxes illegally exacted is ordinarily a matter of governmental grace. On grounds of public policy, the law discourages suits for the refund of taxes illegally levied and collected, and has imposed many restrictions on their recovery. It is generally held that taxes voluntarily paid without compulsion, although levied under an unconstitutional statute, cannot be refunded without the aid of a statutory remedy. [Citation omitted.]
‘But here we have no general statute authorizing the refund of a domestication tax illegally exacted. Nevertheless, under the common law if the payment of a tax is deemed involuntary, a tax which is unlawfully collected may be recovered back by appropriate action. [Citation omitted.] Here we have a tax which was unlawfully collected under the express ruling of [an earlier case]. So the only question as to the common law right of relator to a refund is whether the payment of the tax was voluntary or involuntary.
‘The tax was not paid under protest. Even so, that fact does not determine whether it was paid voluntarily or involuntarily and has little or no weight on the question. [Citations omitted.]
‘In [an earlier case], we followed the prevailing rule that a voluntary payment of a tax made under a mistake of law but with a full knowledge of all the facts cannot be recovered. However, courts are now taking a more Mb eral view as to whether certain types of taxes are ever in fact voluntarily paid since the urgent and immediate payment of them is compelled in order to avoid the harsh penalties imposed for non-payment. The compulsion brought about by such penalties creates what the writers have termed technical or implied duress sufficient to make the payment of such taxes involuntary. We adopted the modem view of greater liberality in recognizing such duress in tax payments in Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710, where we declined to follow the stricter view of some of our earlier decisions.
‘And even more to the point in this case this court has held that the payment of a tax in order to avoid the forfeiture of the payor’s right to continue in business “constituted such duress as would render the payment of the tax involuntary.” [Citations omitted.]. . .
‘In the instant case relator was faced with the forfeiture of its right to continue business here, and with other penalties, unless it paid the domestication tax. We hold that under these circumstances it was an involuntary payment. Being an involuntary payment of an illegal tax relator has a lawful right to have it refunded by the State.’ 357 Mo. at 307-08.
‘We find persuasive the reasoning of the Missouri and New York courts and accordingly conclude that a business faced with the forfeiture of its right to continue business unless it paid the fee does not pay it voluntarily. Here, the payments were involuntarily exacted pursuant to an enactment that was invalid and without effect. Thus, Licensees are entitled to a refund.” Bigs, 271 Kan. at 469-71.
We conclude the reasoning in Bigs is applicable and Busby does have standing to challenge the constitutionality of K.S.A. 2-1205.
CONSTITUTIONALITY OF STATUTE
Busby s constitutional claim is based on the allegation that, under the clear language of the statute, the inspection fee under K.S.A. 2-1205 generates revenue far in excess of the cost of the inspection program. Busby argues that because K.S.A. 2-1205 generates excessive revenues, it violates Kansas Constitution art. 11, § 1, as well as the Commerce Clause and Fourteenth Amendment of the United States Constitution. Busby also argues the statute is unconstitutionally vague.
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.’ ” State ex rel. Stephan v. Parrish, 251 Kan. 294, 297, 891 P.2d 445 (1995) (quoting State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20, 587 P.2d 844 [1978]).
K.S.A. 2-1205 states:
“An inspection fee shall be collected upon all commercial fertilizers sold, offered or exposed for sale, or distributed in Kansas, which shall be at a rate per ton of 2,000 pounds fixed by rules and regulations adopted by the state board of agriculture, except that such rate shall not exceed $1.70 per ton of 2,000 pounds. The inspection fee rate per ton of 2,000 pounds in effect on the day preceding the effective date of this act shall continue in effect until the state board of agriculture adopts rules and regulations fixing a different inspection fee rate under this section. Each person registering any commercial fertilizer shall pay the inspection fee on such commercial fertilizer sold, offered or exposed for sale, or distributed in Kansas, and shall keep adequate records showing the tonnage of each commercial fertilizer shipped to or sold, offered or exposed for sale, or distributed in Kansas, and the secretary, and duly authorized representatives of the secretary, shall have authority to examine such records and other pertinent records necessary to verify the statement of tonnage.
“Each person registering any commercial fertilizer shall file an affidavit semiannually, with the secretary, within 30 days after each January 1 and each July 1, showing the tonnage of commercial fertilizer sold or distributed in Kansas for the preceding six-month period, and shall pay to the secretary the inspection fee due thereon for such six-month period, except that the registrant shall not be required to pay the inspection fee or report the tonnage of commercial fertilizers or fertilizer materials sold and shipped directly to fertilizer manufacturers or mixers, but the fertilizer manufacturers or mixers shall keep adequate records of the commercial fertilizers sold or distributed in this state, and report to the secretary the tonnage thereof and pay the inspection fee due thereon. If the affidavit is not filed and the inspection fee is not paid within the thirty-day period, or if the report of tonnage is false, the secretary may revoke the registrations filed by such person; and if the affidavit is not filed and the inspection fee is not paid within the thirty-day period, or any extension thereof granted by the secretary, a penalty of $5 per day shall be assessed against the registrant and the inspection fee and penalty shall constitute a debt and become the basis for a judgment against such person. The secretary may grant a reasonable extension of time.
“The Kansas state board of agriculture is hereby authorized and empowered to reduce the inspection fee by adopting rules and regulations under this section whenever it shall determine that the inspection fee is yielding more than is necessary for the purpose of administering the provisions of this act, and the board is hereby authorized and empowered to increase the inspection fee by adopting rules and regulations under this section when it finds that such is necessary to produce sufficient revenues for the purposes of administering the provisions of this act, but not in excess of the maximum fee prescribed by this section. The secretary shall remit all moneys received by or for the secretary under article 12 of chapter 2 of Kansas Statutes Annotated and amendments thereto to the state treasurer at least monthly. Upon receipt of any such remittance the state treasurer shall credit the remittance as follows: (1) An amount equal to $1.40 per ton shall be credited to the state water plan fund created by K.S.A. 82a-951, and amendments thereto; (2) an amount equal to $.04 per ton shall be credited to the fertilizer research fund; and (3) the remainder shall be credited to the fertilizer fee fund. All expenditures from the fertilizer fee fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary of the state board of agriculture or by a person or persons designated by the secretary.”
Busby alleges the statute is unconstitutionally vague because although it provides that commercial fertilizer be registered and that each person registering any commercial fertilizer must pay the inspection fee, it does not state who must register the fertilizer.
The standard for determining whether a statute regulating business is unconstitutionally vague is a common-sense determination of fairness. If an ordinaiy person exercising common sense can understand and comply with the statute, it is constitutional. Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). In determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatoiy enforcement. State v. Lackey, 232 Kan. 478, 480, 657 P.2d 40 (1983). The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. 232 Kan. at 479.
K.S.A. 2-1205 sufficiently warns persons of common intelligence that “[e]ach person registering any commercial fertilizer shall pay the inspection fee on such commercial fertilizer sold, offered or exposed for sale, or distributed in Kansas,” and that “[a]n inspection fee shall be collected upon all commercial fertilizers sold, offered or exposed for sale, or distributed in Kansas." Thus, any person selling, offering or exposing for sale, or distributing commercial fertilizer in Kansas should be aware an inspection fee will be collected on that fertilizer. Busby argues it is unclear who must pay the fee on the commercial fertilizer as there is a chain of distribution. Here, it is undisputed Busby was merely a “middleman.” KDA conceded that as a “middleman,” Busby was not hable for the fee on the fertilizer because its distributor would be responsible for payment of inspection fees. The Secretary’s interpretation is consistent with the language of the statute.
Although K.S.A. 2-1205 is a statute regulating business that must be afforded greater leeway than a statute proscribing criminal conduct, Cardarella v. City of Overland Park, 228 Kan. 698, 706, 620 P.2d 1122 (1980), a penalty is provided for violation. K.S.A. 2-1208(3). Thus, although the statute does not specifically state who must register, it is clear that if one is involved in the commercial fertilizer business, a duty is placed upon that person to ensure the fertilizer has been registered and labeled, either by the distributor from whom they obtained the fertilizer, or to determine, if it is not already registered and labeled when it is acquired, if they need to do so. When construed in its entirety, there is no room for guessing by people of common intelligence as to the statute’s requirements. We conclude the statute is not unconstitutionally vague.
Busby also argues the fee imposed by K.S.A. 2-1205 violates the Commerce Clause of the United States Constitution, art. 1, § 8, cl. 3. Kansas may properly legislate the regulation of fertilizers as Congress has not acted in this area and the legislation is predominately a local influence on interstate commerce. See Morgan v. Virginia, 328 U.S. 373, 378-79, 90 L. Ed. 1317, 66 S. Ct. 1050 (1946). An analysis of a state’s role in regulating interstate commerce necessarily involves making a determination as to whether the state’s legislation only incidentally burdens interstate commerce or whether the legislation affirmatively discriminates against interstate commerce. Statutes in the first group violate the Commerce Clause only if the burden imposed on interstate trade is excessive in relation to the putative local benefits. Maine v. Taylor, 477 U.S. 131, 138, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986). Here, there is no allegation nor evidence of affirmative discrimination against interstate commerce.
Busby’s argument hinges on the amount of fee imposed. It argues the fee is disproportionate to the costs of maintaining the inspection program and the revenue obtained from the fees are improperly used for other state purposes. The main complaint from Busby is that a portion of the funds derived from the fees go to the State Water Fund. This argument is without legal merit. The portion of the fees which contribute to the State Water Fund also goes toward the program’s puxpose: The State Water Fund is designed to protect the State’s most precious natural resource which is threatened by the use of fertilizers. Thus, the contribution is fairly related to the regulation of fertilizers and is not excessive to the local benefits conferred on the state of Kansas.
An inspection statute which does not yield excess revenue over costs and does not provide that the fee be placed in the state’s general fund is not a revenue raising measure. R. B. Enterprises, Inc. v. State, 242 Kan. 241, 248-49, 747 P.2d 152 (1987). Here, it is clear the funds derived from the inspection fee are not placed in the general fund, are not a revenue raising measure, and are used for the purposes for which the program exists: to regulate the use of fertilizers which necessarily involves the protection of resources threatened by fertilizer use.
Finally, Busby claims the fee is a specific property tax and that it is an impermissible tax on inventories, both violative of Kansas Constitution art. 11, § 1(b). With respect to the claim the fee is an impermissible tax on inventories, it has been previously noted the fee is not a disguised tax as Busby alleges.
Busby’s other claim is that the fee is a “specific tax” as discussed in Von Ruden v. Miller, 231 Kan. 1, 642 P.2d 91 (1982). However, a specific property tax, although perhaps fixed by some sort of weight or measurement, is still a property tax. The Von Ruden court discussed property taxes as falling into two categories: ad valorem and specific. 231 Kan. at 9. Merely because the fee in this instance is based on a measurement of tonnage sold does not make it a specific property tax. The specific taxes discussed in Von Ruden, and the cases cited therein, established that a specific property tax need not be based on property owned; however, it is clear that a property tax is a tax on property owned or revenues obtained from property owned. See Von Ruden, 231 Kan. at 8-9. The fee here is based on the tonnage of fertilizer sold, which funds the regulation of the product sold. Thus, it is not a specific property tax, nor a tax at all. It is a fee for the purposes of supporting the regulation of fertilizer for the health, safety, and welfare of Kansas citizens.
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Gernon, J.:
Joseph M. Gardiner, III, (Joe) appeals the district court’s award of attorney fees to Krigel and Krigel, P.C., (Krigel & Krigel) attorneys for J’Noel Gardiner. This is a companion case to In re Estate of Gardiner, (29 Kan. App. 2d 92, 22 P.3d 1086 (2001). In that case, this court reversed the trial court’s granting of summary-judgment and ruled that the matter be remanded for a hearing.
Marshall G. Gardiner died intestate on August 12,1999. He was a resident of Leavenworth County, Kansas.
Joe, Marshall’s son, filed a petition for letters of administration with the District Court of Leavenworth County, Kansas. Joe named himself and J’Noel Gardiner, Marshall’s surviving spouse, as Marshall’s heirs. In his petition, Joe argued that J’Noel had waived any rights to Marshall’s estate, and, thus, he is the sole heir at law to Marshall.
J’Noel filed an objection to Joe’s petition and also applied for letters of administration. Eventually the court appointed a special administrator to handle the estate.
The parties filed numerous pleadings and motions with the trial court. The court heard oral arguments and granted Joe’s motion for summary judgment with respect to the validity of ihe marriage. That ruling was reversed by this court.
The trial court stated, then, that J’Noel had no interest or rights in Marshall’s estate. Accordingly, J’Noel’s motion for partial summary judgment was denied. J’Noel appealed to this court.
Krigel & Krigel, J’Noel’s attorneys, submitted an application with the district court for allowance of attorney fees in the amount of $61,191.42. Joe filed an objection to the application. The district court granted in part Krigel & Krigel’s application for allowance of attorney fees. Joe’s objection to the application for attorney fees was therefore denied.
The district court stated that approximately two-thirds of the attorney fees were related to the issue of whether J’Noel was an heir at law. The court found that it was necessary to resolve this issue before administration of the estate could proceed. Thus, the district court found that $40,000-worth of fees should be taxed as costs against the estate, pursuant to K.S.A. 59-2214.
In the alternative, the court stated that, should the district court’s award be overturned, attorney fees may be awarded pursuant to K.S.A. 59-1504. The court found that J’Noel was successful in avoiding dismissal on one of the two grounds advanced by Joe in his motion for summary judgment, i.e., the waiver of marital rights, and, therefore, a portion of the fees related to the litigation, or $20,000, should be paid by the estate pursuant to K.S.A. 59-1504. Joe appeals.
Joe argues that the district court misconstrued K.S.A. 59-2214 by holding that the statute allows an award of attorney fees to the lawyers for the losing party. The issue of whether the district court had the authority to impose attorney fees under K.S.A. 59-2214 is a question of law over which appellate review is plenary. Walker v. State, 26 Kan. App. 2d 410, 411, 988 P.2d 283, rev. denied 268 Kan. 896 (1999).
In Kansas, courts do not have the authority to award attorney fees in civil cases except those authorized by statute or agreed to by the parties. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). Likewise, a court does not have authority to impose attorney fees under its equitable powers in the absence of statutory authorization. 21 Kan. App. 2d at 905-06. See Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1009-10, 894 P.2d 260 (1995).
The district court found that part of J’Noel’s attorney fees were costs that should be taxed against the estate under K.S.A. 59-2214. The district court also cited In re Estate of Kern, 239 Kan. 8, 716 P.2d 528 (1986), in support of the decision to award attorney fees under K.S.A. 59-2214.
K.S.A. 59-2214 states in relevant part:
“In all probate proceedings relating to a decedent or conservatee, the court shall tax the costs thereof against the estate unless otherwise provided by this act, or unless it appears that it would be unjust and inequitable to do so, in which event the court shall tax such costs or any part thereof against such party as it appears to the court is just and equitable in the premises.”
When attorney fees are to be included as part of costs, a statute explicitly includes them. Walker, 26 Kan. App. 2d at 411. See, e.g., K.S.A. 2000 Supp. 61-2709(a) (appeal from small claims court); K.S.A. 2000 Supp. 60-1610(b)(4) (costs and attorney fees in divorce action); K.S.A. 2000 Supp. 60-2006(a) (motor vehicle negligence cases).
In Walker, the trial court assessed court costs and attorney fees for appointed counsel against an unsuccessful K.S.A. 60-1507 plaintiff. After a review of the statutory authority upon which the trial court relied, the Court of Appeals found that nothing in the statute specifically authorized the taxing of the plaintiff for the reimbursement of his own court-appointed attorney fees. 26 Kan. App. 2d at 411; see K.S.A. 2000 Supp. 60-2001(d). Absent express statutory authority, the court held that the trial court could not order the reimbursement of the attorney fees paid to plaintiffs court-appointed counsel. This court did affirm the assessment of court costs against the plaintiff. 26 Kan. App. 2d at 412.
Likewise, in K.S.A. 59-2214, nothing in the statute specifically authorizes the taxing of J’Noel’s attorney fees against Marshall’s estate. As stated by the Kansas Supreme Court in Divine v. Groshong, 235 Kan. 127, 141, 679 P.2d 700 (1984), with respect to another statute that utilizes the word “costs,” “[t]he term ‘costs’ ordinarily means the fees and charges of the court—filing fees, fees for service of process and the like.” See DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 551, 947 P.2d 1039 (1997). K.S.A. 59-2214 does not provide for the payment of all the expenses incurred in all probate proceedings relating to a decedent. The statute uses the term “costs.”
A review of the case relied on by the district court in support of the decision to award attorney fees to Krigel & Krigel pursuant to K.S.A. 59-2214, i.e., In re Estate of Kern, provides no guidance. Kern involved an appeal from an order of a district court admitting a will to probate. On cross-appeal, the executors of the estate contended that the trial court erred in overruling their motion to assess costs and attorney fees to the principal contestant of the will under either K.S.A. 60-2007(b) or K.S.A. 59-2214.
The Supreme Court agreed with the district court in holding that the contestant should not be responsible for the costs and fees of the litigation as there was no showing that it was a frivolous action or was brought in bad faith. 239 Kan. at 20. K.S.A. 60-2007(b), repealed in 1997, dealt with frivolous actions and the assessment of “reasonable attorney fees and expenses” incurred by the other party. K.S.A. 59-2214 uses the term “costs” in discussing the taxation of a decedent’s estate.
It is unclear whether the court was discussing attorney fees as “costs” under K.S.A. 59-2214. Most of the language the Supreme Court quoted from the trial court’s decision discusses a “frivolous action” and “good faith.” 239 Kan. at 20. Nowhere does the Supreme Court state that the term “costs” in K.S.A. 59-2214 refers to attorney fees, especially those of a losing litigant. Thus, Kern lends no support to the argument that K.S.A. 59-2214 is statutory authority for the award of attorney fees to Krigel & Krigel.
Krigel & Krigel cites to several cases in support of their argument that the district court did not err in awarding them attorney fees under K.S.A. 59-2214. No case can be found that allowed attorney fees under K.S.A. 59-2214 to be awarded to a losing litigant in a case involving a decedent’s estate. The only case that allowed attorney fees as costs under this statute was State Department of Social Welfare v. Emert, 205 Kan. 393, 395, 469 P.2d 435 (1970).
In Emert, the attorney fees that were assessed were those of the administrator. The probate court assessed the cost of administering a no-asset estate to a creditor who had petitioned for administration of the estate. The Supreme Court held that the probate court may, in its sound discretion, charge the cost of administering a no-asset estate to a creditor who petitioned for administration. 205 Kan. at 395. The court concluded that reasonable attorney fees are proper items of cost of administering a decedent’s estate. 205 Kan. at 395.
Krigel & Krigel is not responsible for administering the estate. A special administrator was appointed to handle the estate. The administrator of Marshall’s estate has already been paid $23,137.50 in fees for services through January 18, 2000. Administration fees are not the same as attorney fees of the losing litigant in a probate proceeding.
The allowance of attorney fees and expenses is a matter of public policy to be determined by the Kansas Legislature. DeSpiegelaere, 24 Kan. App. 2d at 552. Absent express statutory authority, die trial court cannot order Marshall’s estate to be taxed with a portion of J’Noel’s attorney fees. The district court erred in awarding attorney fees to Krigel & Krigel pursuant to K.S.A. 59-2214.
Joe next argues that while K.S.A. 59-1504 is the controlling statute, the district court erred in construing this statute to allow attorney fees to be awarded directly to the attorneys of the losing party who is not an heir at law. This question requires that this court interpret K.S.A. 59-1504, and, therefore, the standard of review is plenary. Walker, 26 Kan. App. 2d at 411.
K.S.A. 59-1504 states in pertinent part:
“Any heir at law or beneficiary under a will who, in good faith and for good cause, successfully prosecutes or defends any other action for the benefit of the ultimate recipients of the estate may be allowed his or her necessary expenses, in the discretion of the court, including a reasonable attorney’s fee.”
The allowance of attorney fees in probate cases is governed by K.S.A. 59-1504. In re Estate of Mildrexter, 25 Kan. App. 2d 834, 838, 971 P.2d 758, rev. denied 267 Kan. 888 (1999). The clear language of the statute indicates that four requirements must be met before attorney fees may be recovered: (1) The party who may be allowed the fees by the court must be an heir at law or a beneficiary under a will; (2) the party must have exercised good faith and have had a good cause for incurring such fees; (3) the party must be successful in his or her action; and (4) the action must ultimately benefit the recipients of the estate. When the requirements are met, the court must exercise its discretion to allow fees. K.S.A. 59-1504.
An application of these four requirements to the facts surrounding this case reveals that Krigel & Krigel is not entitled to attorney fees under K.S.A. 59-1504.
Krigel & Krigel submitted an application for fees with the district court in the amount of $61,191.42. Joe argues that Krigel & Krigel had no standing to file the application for an allowance of attorney fees because Krigel & Krigel was not a party to the summary judgment proceedings and is not an heir at law to Marshall.
The Kansas Supreme Court has held that under the first paragraph of K.S.A. 59-1504, attorney fees are to be awarded to the person who defends or opposes the probate of a will and not to the attorneys. In re Estate of Robinson II, 236 Kan. 431, 436-37, 690 P.2d 1383 (1984). The statute states that fees shall be paid to “such person.” K.S.A. 59-1504.
The language that concerns the case before this court is in the second paragraph of K.S.A. 59-1504. This portion of the statute does not state that “such person” shall be allowed fees. However, the relevant language does state that any heir at law or beneficiary under the will may be allowed his or her necessary expenses, including a reasonable attorney fee. K.S.A. 59-1504. Thus, from the language of the statute, the person who should request such fees would be the heir-at-law or die beneficiary under the will and not the attorneys direcdy. We further conclude that Krigel & Krigel lacked standing to request an allowance of fees.
Even if Krigel & Krigel could make a direct application for attorney fees, the award was still improper because J’Noel was not found to be an heir-at-law to Marshall. The district court specifically found that J’Noel is not Marshall’s surviving spouse under Kansas law. We reversed that finding and remanded for further proceedings, with directions. Whether J’Noel is or is not an heir is yet to be determined.
Joe argues that J’Noel lacks good faith because J’Noel prepared a waiver of inheritance rights prior to her marriage and with this litigation has dishonored this document. The trial court ruled on the waiver issue, and we concluded in the companion case that the trial court’s ruling was the law of the case, since Joe did not appeal that ruling.
The court found that J’Noel had been successful in avoiding dismissal on one of the two grounds advanced by Joe, i.e., the waiver of marital rights. The court granted Krigel & Krigel an allowance of fees for work done on this issue. In In Re Estate of Robinson I, 232 Kan. 752, 756, 659 P.2d 172 (1983), the Supreme Court discussed the word “success” as it relates to language in another portion of K.S.A. 59-1504. The court stated that Webster’s New World Dictionary, Second College Edition (1974), defines “success” as a “ ‘favorable or satisfactory outcome or result.’ ” 232 Kan. at 756. The court found that “ ‘success’ ” in the context of the statute, refers to the “ultimate resolution of the issue.” 232 Kan. at 756.
As of this ruling J’Noel has not been successful, but neither has Joe.
In addition, as to the fourth requirement, it cannot be said that the litigation was for the benefit of the ultimate recipient of the estate.
The district court erred in alternatively awarding attorney fees to Krigel & Krigel pursuant to K.S.A. 59-1504. The propriety of any fee award may be resubmitted and redetermined at the conclusion of the estate case.
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Pierron, J.:
Charles D. Cooper appeals his convictions for possession of cocaine and possession of cocaine without the proper tax stamp.
Wichita police officers Beck and Gilchrist inspected the premises of Zigefield’s, an adult entertainment store. Zigefield’s is in the business of renting videos to customers. The store also provides booths where customers can preview videos and another area of booths where customers can put tokens in a machine and watch videos.
The booths are approximately 3 feet by 4 feet in size and are enclosed by a door that opens outward and has a gap at the top and bottom. Wichita city ordinances forbid more than one person to occupy a booth at one time, and an individual in a booth is required to remain clothed. The reasons for these ordinances can be imagined.
Beck entered the preview area of Zigefield’s and opened a booth door. Cooper was seated on a bench in the booth. Beck observed a pink piece of paper and a small straw on the bench next to Cooper. Beck believed the paper was a “snow seal,” a piece of paper folded like an envelope used to hold cocaine powder or other drugs. Beck tested the powdery substance found on the paper and the straw. The substance tested positive for cocaine.
Cooper was arrested and placed in a patrol vehicle. Two more snow seals were found in his pocket. He admitted to snorting cocaine while in the video booth. He also admitted possessing more drugs in his vehicle, and three more snow seals containing cocaine and another straw were found in the vehicle. Cooper told Beck he had been using cocaine for 8 or 9 years, had bought about 4 grams that day, and had used about 1 gram.
Cooper was charged with one count of possession of cocaine and one count of unlawfully distributing or possessing cocaine without affixing the appropriate tax stamp. Cooper filed a motion to suppress the physical evidence and statements he made because the search of the booth violated his right to be free from unreasonable searches and seizures.
At the hearing on the motion, Beck testified that she conducts checks of businesses like Zigefield’s, Excitement Video, and After Dark, all adult entertainment businesses. The businesses are licensed by the city, and Beck inspects the businesses to ensure they comply with city ordinances. She performs the inspections during her working shift from 11 p.m. to 7 a.m., but the businesses are subject to inspection at all times.
In ruling on the motion, the district court took notice of an ordinance prohibiting booth doors or curtains from being locked and requiring the bottom of a booth door to be at least 15 inches from the ground and the top of the curtain or the door to be no more than 6 feet from the floor. The court also considered an ordinance requiring every adult entertainment establishment and its employees to admit any law enforcement officer to any and every part of the premises for the purpose of inspection. The court found that adult entertainment businesses are targeted for inspections to avoid certain criminal activity and Cooper did not have an expectation of privacy in the booth. Further, Beck’s entry into the booth was not unreasonable in light of the facts of the case and the ordinance allowing for inspection.
The parties submitted the matter to the court for adjudication based on the evidence presented, and Cooper was found guilty of both counts. He was sentenced to 17 months in prison for possession of cocaine and ordered to serve 24 months on probation. He was sentenced to 6 months for not having a tax stamp and ordered to serve 24 months’ probation.
“When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).
Cooper claims the evidence used to convict him was gained through an improper search and should have been suppressed. It is undisputed there was no search warrant in the present case. Searches conducted without a search warrant are per se unreasonable, subject to a few exceptions. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998). A search within the meaning of the Fourth Amendment occurs when a reasonable expectation of pri vacy is infringed. State v. McMillin, 23 Kan. App. 2d 100, 102, 927 P.2d 949 (1996). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations omitted.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351-52, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
The relevant question in this case is whether Cooper had a constitutionally protected expectation of privacy in the video booth in which he was discovered with cocaine. The inquiry into such an issue involves a two-step process: Did Cooper manifest a subjective expectation of privacy, and, if so, is it an expectation society is prepared to recognize as reasonable? State v. Timley, 25 Kan. App. 2d 779, 780, 975 P.2d 264 (1999).
No Kansas cases have considered the expectation of privacy in video boodis. Cooper cites two Texas cases for the proposition that booths in adult entertainment establishments are entitled to constitutional protection. In Liebman v. State, 652 S.W.2d 942 (Tex. Crim. 1983), police officers became suspicious of two individuals who had entered two separate but adjoining booths in an adult theater. The officers knew that a hole had been cut in the common wall between the two booths approximately waist high. The officers took turns boosting each other using cupped hands to view over the top of the booths from a couple of vantage points. The officers observed two men in sexual contact with each other through the hole. In addressing the question of whether individuals in the booths had a reasonable expectation of privacy, the court first considered the design of the booths. The booths were constructed of plywood walls and a door, all approximately 7 feet high. Movies were projected onto a screen on the inside of the door. One of the officers testified that, with the door closed, no one could see into the booth and most of the doors had locks. The tops of the booths were open.
The Liebman court then looked at the appellants’ subjective expectation of privacy and noted they had closed the booth doors. The court stated: “[I]t is clear that a person would have a subjective expectation of privacy under the circumstances and conditions de scribed.” 652 S.W. 2d at 946. The court addressed whether the subjective expectation of privacy was justified, that is, whether it was an expectation society was prepared to recognize as reasonable. The court found the theater management expected their patrons to have privacy in the booths and considered evidence that in the time since the appellant’s arrest, the management had acquiesced in steps taken by patrons to block the view of outsiders over the tops of the booths. The court held a search had occurred because the appellants had a reasonable expectation of privacy in the booths. 652 S.W.2d at 946-48.
More recently, in Wilkins v. State, 829 S.W.2d 818 (Tex. App. 1992), a police officer was inspecting an adult arcade to ensure it was in compliance with city ordinances regulating such establishments. The store operated booths where customers could watch pornographic movies. The officer heard moaning sounds distinguishable from the movie sounds coming from inside the booth. The officer opened the curtain and observed two males with their pants undone fondling each other’s genitalia. The court found that the closed curtain and the light outside the booth indicating the booth was occupied were evidence of a subjective expectation of privacy. The court also found these same factors to be evidence of an expectation of privacy as strong as that which would be given to someone in a bathroom stall and the expectation was one society would recognize as reasonable. 829 S.W.2d at 821.
Cooper also cites numerous cases from other jurisdictions for the proposition that booths in adult entertainment stores are similar to bathroom stalls, which have consistently been granted constitutional rights to privacy. There is ample authority to support the theory that bathroom stalls are intended to provide privacy and society would recognize that as a reasonable expectation. See State v. Biggar, 68 Hawaii 404, 407, 716 P.2d 493 (1986). Bathroom stalls do not provide complete privacy, “but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded.” People v. Kalchik, 160 Mich. App. 40, 49, 407 N.W.2d 627 (1987).
There are key distinctions between a bathroom stall and a video booth in an adult entertainment establishment, particularly the booth in the present case. The vast majority of bathroom stalls have locks, as did the video booth in Liebman. The functions bathroom stalls are supposed to serve involve intimate and personal activities and private functions. Despite the Texas cases discussed above, it is less clear that society would recognize as reasonable an expectation of privacy in an area to which the individual is not even allowed to lock out other individuals.
Another significant difference requiring discussion is the system of regulation the City of Wichita has established to deal with adult entertainment establishments. City ordinances regulate the physical arrangement of the interior of these businesses, the physical features of the viewing booths, how many people are allowed in each booth, and the criminal penalties to be imposed for violations of the ordinances.
The State asserts that the search by the police officers constituted an administrative search of a closely regulated business and, thus, no warrant was required.
It does not appear that Cooper or anyone else is disputing that adult entertainment establishments in Wichita are the target of special regulation and classified as pervasively regulated businesses. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger, 482 U.S. 691, 700, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987). “Individuals engaged in a closely regulated industry have a significantly reduced expectation of privacy.” State v. Bone, 27 Kan. App. 2d 582, 585, 6 P.3d 914 (2000) (citing Burger, 482 U.S. at 700-02). This reduced expectation of privacy generally applies to the participants in the industry, and it is not clear whether a patron’s expectations are accordingly reduced. As applied to Cooper’s situation, the analysis of the expectation of privacy in a closely regulated business is material to his expectation as a customer but not dispositive of whether he enjoyed a reasonable expectation of privacy. If Cooper had a reasonable expectation of privacy in the booth, the ordinances regulating the adult entertainment industry in Wichita cannot be read to deprive him of that right.
Applying the two-part test in Timley, we must first determine whether Cooper manifested a subjective expectation of privacy. The facts of the case show he was in the booth with the door shut. The officer could not remember if the light indicating that the booth was occupied was activated. Cooper was aware the door to the booth could not be locked and there were spaces at the bottom and the top of the door where individuals could possibly see inside the booth. There were also city ordinances mandating that any and eveiy part of the premise of this type of business is subject to inspection at any time.
We find that although Cooper may well have thought he was guaranteed privacy, there was no reasonable expectation of privacy based on the physical layout of the business. We also believe this was an appropriate administrative search of a heavily regulated business. Under either theory, Cooper’s argument fails.
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Pierron, J:
The appellants, Thomas H. and Elizabeth J. Hocker, appeal the decision of the Kansas Board of Tax Appeals (BOTA), affirmed by the district court, that there was no jurisdiction under K.S.A. 79-1702 to bring this tax grievance. The appellants argue the county’s misclassification of their real property is a clerical error within the meaning of K.S.A. 79-1701. We affirm.
The facts in this case are undisputed. The appellants own a tract of land in Johnson County that can be described as a strip of vacant land and an adjacent parking lot.
In 1989 and 1990, Johnson County classified the property as vacant urban with a 12% assessment rate. In 1991, Johnson County changed the property’s classification to commercial with a 30% assessment rate. The appellants filed a tax protest in 1991 and 1992 but did not file a tax protest in 1993 or 1994. The protests for the tax years 1991 and 1992 were resolved by a stipulation between the appellants and the county dated October 7,1994, and approved
by BOTA on December 14, 1994. Pursuant to the stipulation, the parking lot was assessed as commercial property and the vacant lot as vacant urban property.
The stipulation was the result of an inspection of the property by the appraiser in 1994 when he discovered a for-sale sign in the front of the vacant portion of the land. As a result of this information, the appraiser changed his opinion and concluded the vacant portion of the land was not needed as buffer ground for the parking lot and could be taxed as vacant urban property.
On September 25, 1995, the appellants filed a tax grievance alleging an incorrect classification of the subject property for the tax years 1989,1990,1993,1994, and 1995. The appellants argued the county incorrectly classified the property as commercial, when it should have been classified as mixed-use property (in this case 65% commercial and 35% vacant urban) and that this error had been corrected for 1991 and 1992 pursuant to a stipulation of the parties. The county responded:
“Applicant has submitted a copy of a BOTA order and stipulation (Docket No. 92-17172-PR & 93-14855-PR) that was implemented for tax years 1991 and 1992. Since the BOTA order on tax years 1991 and 1992 was not certified until December 16, 1994, the value reflected by the stipulation was not applied to tax years 1993 and 1994. There is no record of any other appeal being filed in 1993 or 1994.
“The county agrees that there is excess land present and that it should be assessed at the 12% rate, however, there is no appeal outstanding for 1993 and 1994 which would provide us jurisdiction to adjust the account. We do not believe this constitutes clerical error, in that we intended to classify all of the land as commercial at the time the values were set.”
BOTA ruled the appellants lacked jurisdiction to proceed under K.S.A. 79-1701 as a clerical error. BOTA held the appellants presented a valuation and assessment question which was only remediable under K.S.A. 79-2005 and, thus, BOTA was precluded from addressing the issue as a tax grievance. In denying the motion for reconsideration, BOTA further explained its ruling:
“The Board is convinced, in this particular instance, that the county appraiser used ‘judgment or discretion’ in classifying the subject property as he did for the 1993 and 1994 tax years. The Board finds that the county appraiser intended the result that occurred in classification for these years. Granted, the result that occurred in 1993 and 1994 was incorrect. However, the result was deliberate, and therefore, cannot be said to be a clerical error within the meaning of K.S.A. 79-1701.”
The appellants sought judicial review in district court. The district upheld BOTA’s ruling that it lacked jurisdiction under K.S.A. 79-1702 to decide this tax grievance. The court found the county misclassified the appellant’s property because it made the classification decision without gathering sufficient information, but that the error was not a “clerical error” within the meaning of K.S.A. 79-1701 or Kansas caselaw.
The appellants argue the misclassification of property is a clerical error under K.S.A. 79-1701. The appellants also claim the exercise of discretion by the taxing authority is irrelevant.
Our review of BOTA decisions is limited to appeals under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999) (citing Board of Johnson County Comm’rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 [1986]). The appellants argue we should grant the requested relief under K.S.A. 77-621(c)(4), (7), and (8) which provide, respectively, for relief if the agency has erroneously interpreted or applied the law, the agency’s decision is not supported by substantial competent evidence, and the agency has acted unreasonably, arbitrarily, or capriciously.
“BOTA is a specialized agency that exists to decide taxation issues, and its decisions should be given great weight and deference when it is acting in its area of expertise.” In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999). An agency’s interpretation of a statute is entitled to judicial deference, but the final construction of a statute lies with the appellate court. The agency’s interpretation of a statute, while persuasive, is not binding on the court. See In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
The general statutory classification of a tax appeal starts with K.S.A. 79-1702, which provides in relevant part: “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.” Therefore, all errors which are not classified as clerical errors under K.S.A. 79-1701 are only remediable under the general provisions of K.S.A. 79-2005 as a payment of taxes under protest.
The question presented is whether the appellant’s claim of misclassification can be pigeonholed into any of the types of clerical errors listed in K.S.A. 79-1701. K.S.A. 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 in extensions of values or taxes whereby a taxpayer is charged with unjust taxes;
“(c) errors which have caused improvements to be assessed upon real estate when no such improvements were in existence;
“(d) errors whereby improvements located upon one tract or lot of real estate have been assessed as being upon another tract or lot;
“(e) errors whereby taxes have been charged upon property which the state board of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state;
“(f) 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;
“(g) 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
“(h) errors whereby the values or taxes are understated or overstated as a result of a mistake on the part of the county.”
We note the Kansas Legislature amended K.S.A. 79-1701 in 1999 by deleting the language in subsection (b) “errors in extensions of values or taxes whereby a taxpayer is charged with unjust taxes.” L. 1999, ch. 123, § 6. Now, there are only subsections (a) through (g) in K.S.A. 1999 Supp. 79-1701.
The appellants direct us to several applicable rules of statutory interpretation. “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained." In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). It is presumed the legislature understood the meaning of words it used and intended to use them in their ordinary and common meaning. See In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App. 2d 863, 868, 909 P.2d 673 (1995).
The appellants argue the misclassification of property is the type of error enumerated in subsections (a), (b), (c), and (h) of K.S.A. 79-1701. First, they argue the misclassification of property is an error in the description of the property under K.S.A. 79-1701(a). The County responds that the description of property, that is, its situs, location, and physical attributes, is obviously distinct from its classification for assessment purposes under defined constitutional and statutory criteria. We agree.
The district court properly analyzed the difference in the terms “classification” and “description.” First, the county appraiser must prepare an appraisal record for each parcel of property showing, among other things, the proper classification of the property and the proper description of the property. The classification of property determines the rate of assessment. The description of the property refers to the property’s physical and legal description. The district court stated that this distinction clarifies the purpose of allowing a correction of a clerical error in the property’s description in K.S.A. 79-1701(a):
“The statute’s concern with errors in either the ‘description or quantity’ of real property is logical because they are likely related: if the legal description is incorrect, it could easily cause an error in the computation of the quantity, or area, of the property, resulting in an incorrect assessment. Conversely, an error in classifying property relates to the assessment and valuation process, and, as 79-1701 [79-1702] provides, is remediable only under K.S.A. 79-2005.”
Next, the appellants argue that since the county classified the property as commercial, that implies there are improvements thereon, and if there are no improvements, then it should be classified as vacant and remediable under K.S.A. 79-1701(c). The County correctly points out that the classification of property in this case did not cause a nonexistent improvement to be assessed, nor was it an extension of value or taxes.
Next, the appellants contend the county’s error is remediable under K.S.A. 79-1701(h) since the value or tax has been overstated as a result of a mistake on the part of the county, and any other interpretation would render this subsection meaningless, which the legislature did not intend in its legislation. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997) (presumed that the legislature does not intend to enact useless or meaningless legislation). On the other hand, the County argues the appellants are overgeneralizing subsection (h) since all errors in the appraisal process could be said to understate or overstate values or taxes. In a similar claim of meaningless legislation,' the County argues K.S.A. 79-2005 is rendered meaningless if all errors were correctable under K.S.A. 79-1701(h) as a result of overstating or understating taxes.
The errors listed in K.S.A. 79-1701 are modified by the words “clerical errors.” Considering the Act as a whole, the errors listed in K.S.A. 79-1701 must be taken into consideration with the legislature’s mandate that only clerical errors are remediable under K.S.A. 79-1701, and all other errors are remediable under K.S.A. 79-2005. Thus, the legislature has made a distinction in appellate remedies for the two differing types of errors.
The court in School District No. 95 v. Marion County School Reorganization Committee, 167 Kan. 665, 208 P.2d 226 (1949), discussed the term “clerical error.” The appellants are quick to point out that School District No. 95 dealt with the improper designation of a common school district and not a taxation matter under K.S.A. 79-1701 or K.S.A. 79-1702. While true, the court there utilized the general definition found in 14 C.J.S. 1202:
" ‘Clerical error. An error in performance of clerical work, no matter by whom committed; more specifically, a mistake in copying or writing; a mistake which naturally excludes any idea that its insertion was made in the exercise of any judgment or discretion, or in pursuance of any determination; an error made by a clerk in transcribing; or otherwise, which must be apparent on the face of the record, and capable of being corrected by reference to the record only.’ ” 167 Kan. at 672.
The appellants rely on In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 757 P.2d 314 (1988), to support their argument that the exercise of discretion is irrelevant as to whether a particular mistake is a clerical error. In U.S.D. No. 437, the taxpayer’s property was assigned on the county tax rolls to the wrong school district, and the county commission reassigned the property to the correct taxing district pursuant to K.S.A. 1987 Supp. 79- 1701a. U.S.D. No. 437 sought a reimbursement of taxes for all years the property had been improperly assigned.
U.S.D. No. 437 argued the error was a clerical error under K.S.A. 1987 Supp. 79-1701(g) as “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.” U.S.D. No. 501 argued the county’s mistake could not 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. The court held the county’s mistake was a clerical error under K.S.A. 1987 Supp. 79-1701:
“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 tire county clerk.” 243 Kan. at 558.
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 appellants rely on language in this court’s decision in Colorado Interstate Gas Co. v. Beshears, 18 Kan. App. 2d 814, 860 P.2d 56 (1993), where the court considered issues surrounding a tax appeal by a state-assessed public utility. However, the Beshears court denied the attempt to use K.S.A. 79-1702 as a collateral challenge to a tax assessment. 18 Kan. App. 814, Syl. ¶ 2. In Beshears, the pipeline companies argued that Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983), supported their proposition that K.S.A. 79-1702 gave BOTA jurisdiction to grant taxpayers relief for tax assessment complaints not otherwise remediable. In Wirt, the taxpayer was given a refund by BOTA for taxes paid under protest because of an improper valuation of its property by Johnson County. The court in Wirt found K.S.A. 79-1702 had been amended in 1980 to effectively eliminate a taxpayer s use of K.S.A. 79-1702 when concerning errors in valuation and assessment. Additionally, the Wirt court also said the valuation issue was clearly not a clerical error remediable under K.S.A. 79-1701. 233 Kan. at 316-17.
The classification of the appellant’s property in 1991 was a determination later found to be erroneous. 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 have a duty to follow the proper statutoiy provisions for appealing this determination in order to protect their rights.
The appraiser’s 1991 classification and assessment was not found to be erroneous until 1994 when the appraiser reviewed the situation and reached a decision that the vacant property was a separate tract of land capable of being “split-out” and separately taxed as mixed-use property. However, that decision was not finalized until BOTA adopted the parties’ stipulation in December 1994. Until that date, the classification was not erroneous and the appellants were required to follow the proper tax protest provisions in K.S.A. 79-2005. The appraiser’s classification of the property was not clerical error.
The appellants failed to properly appeal their taxes in 1993 and 1994. They had the full opportunity to file an evaluation appeal or tax protest for 1993 and 1994. They did not. We note that appellants appealed their taxes in 1991 and 1992 by filing a payment of taxes under protest but failed to follow the same procedure for 1993 and 1994 even though their 1991 and 1992 tax appeals had not been resolved.
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Green, J.:
Phyllis White appeals from the trial court’s judgment granting summary judgment to J.D. Reece Company (J.D. Reece) in White’s breach of contract and breach of fiduciary duty claims. On appeal, White contends that because genuine issues of material fact remained in issue, the trial court erred in granting J.D. Reece’s motion for summary judgment. We agree and reverse and remand for trial.
On September 1,1995, White entered into a written contract to purchase a home from Robert McKinley. J.D. Reece is a well-known real estate broker, specializing in home sales. Kris Keller, a J.D. Reece real estate agent, served as White’s agent for the purchase of the home. Bill Cannon, also a J.D. Reece real estate agent, acted as McKinley’s agent in this transaction.
Because Cannon and Keller were both agents of J.D. Reece, a dual agency agreement was signed by White, McKinley, Keller, and Cannon. Under the dual agency disclosure, Keller and Cannon agreed to the following:
“As a dual agent, the Realtor has the duty to make a full, fair and timely disclosure of all material facts and information within the Realtor s knowledge or readily available to the Realtor which might in any way affect either the Seller’s or the Buyer’s rights and interest or otherwise influence either party’s actions or decisions in connection with the contemplated transaction.”
White signed the dual agency disclosure on September 1, 1995.
On September 2, 1995, White signed a seller’s disclosure statement, which McKinley had prepared. The statement purported to disclose to White all material defects of which McKinley was aware. The statement contained no mention of any structural damage to the house. Under the caption “BUYERS’ ACKNOWLEDGEMENT AND AGREEMENT” the seller’s disclosure statement stated the following:
“1. I understand and agree that the information in this form is limited to information of which SELLER has actual knowledge and that SELLER need only make an honest effort at fully revealing the information requested.
“2. This Property is being sold to me without warranties or guaranties of any kind by SELLER or BROKER concerning the condition or value of the Property.
“3. I agree to verify any of the above information, and any other important information provided by SELLER or BROKER (including any information obtained through the multiple listing service) by an independent investigation of my own. I have been specifically advised to have the Property examined by professional inspectors.
“4.1 acknowledge that neither SELLER nor BROKER is an expert at detecting or repairing physical defects in the Property.
“5. I specifically represent that there are no important representations concerning the condition or value of the Property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.”
This disclosure statement drastically limited Keller’s and Cannon’s responsibility to White and placed the responsibility for investigating the conditions of the property on White.
White decided to have an independent investigation done on the condition of the house. White, on Keller’s recommendation, hired Terra-Firma, a licensed mechanical and structural inspection company, to inspect the home. White testified in her deposition that Keller recommended Terra-Firma because he had worked with the company in the past. White also testified that Keller did not furnish the names of any other inspection companies. White, again based on Keller’s advice, did not accompany the inspector when he went through the house. After the inspection, the inspector orally stated to White that an electrical box was overloaded and needed to be replaced; that the outer garage foundation wall was cracked, was not supportive, and needed to be repaired; and that the fireplace flue was missing a cap and the flashing was not sealed.
As a condition of die sale, Keller prepared a list of items to be repaired based on the oral representations made by the inspector. The itemized list of repairs was typed on J.D. Reece’s stationery and forwarded to White for her approval. The condition of the sale stated:
“September 13, 1995
“In reference to purchase of 6143 Granada, contract date 9-1-95, buyer Phyllis White agrees to accept all conditions as presented in Terra Firma inspection no. 6-12500, except for the following:
1. all recommendations for electrical systems
2. north garage foundation wall at northeast comer that has cracked and settled and is no longer supportive.
3. fireplace flue with improper flashing
“Buyer also agrees to add 100 dollars to the 100 dollars already promised for repairs.
Buyer: Buyer’s Agent:
Phyllis White Kris Keller
Both White and Keller signed this condition.
Terra-Firma issued a written report, dated September 12,1995, on the home. Keller received a facsimile copy of the report on September 12, 1995, and testified that he then forwarded a copy of the report to White on that same day. Although White acknowledged receiving the report, she maintained that she did not receive a copy of the report until after she had received and signed the list of repairs compiled by Keller. White further testified that she did not read the report because she trusted the oral report of the inspector. White also testified that she never discussed the TerraFirma report with Keller or Cannon.
White testified that when the items compiled by Keller had been repaired, she wanted to have the home reinspected. White further testified that Keller told her that a reinspection of the home was unnecessary.
When White later sought to refinance the mortgage on her home, she learned that the house had structural damage along the east wall of the house. White then read the inspection report issued by Terra-Firma. The report contained the following paragraph:
“North garage foundation wall at the northeast comer is cracked and settled and is no longer supportive at this area. A qualified foundation repair contractor should evaluate and repair as needed. Cracking noted on east and west foundation walls. Cracking and inward movement was noted on the east foundation wall. Cracking was observed in the basement floor slab. Evidence of past water entry was noted.” (Emphasis added.)
White maintained that she informed Keller on several occasions that she was not interested in a house with structural damage, and Keller never mentioned the damage to her.
White sued J.D. Reece, asserting that the company breached its contract with her to make full disclosure regarding the condition of the property, breached its fiduciary duty to her, and violated the Kansas Consumer Protection Act. J.D. Reece moved for summary judgment, arguing that the parties had contracted to limit the company’s liability. Determining that Keller complied with K.S.A. 1995 Supp. 58-30,107(a)(3)(D) and(b) when he told White to retain Terra-Firma to perform an independent investigation of the property, that White relied on the inspector’s representation of the property, and that she limited Cannon’s liability by signing the seller’s disclosure statement, the trial court granted summary judgment to J.D. Reece.
White argues that the trial court improperly granted summary judgment because genuine issues of material fact remained. Our standard of review is as follows:
“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.” Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).
An appellate court applies the same rules and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. 266 Kan. at 871-72.
The trial court relied at least partially on K.S.A. 1995 Supp. 58-30,107(a)(3)(D) and(b) to grant J.D. Reece’s summary judgment motion. The trial court determined that Keller had complied with those subsections by telling White to obtain Terra-Firma to perform an inspection of the property. K.S.A. 58-30,101 et seq., commonly known as the Brokerage Relationships in Real Estate Transactions Act (BRRETA), was enacted during the 1995 legislative session and did not take effect until January 1,1996,4 months after the transaction in the present case occurred. K.S.A. 1995 Supp. 58-30,101.
On appeal, J.D. Reece acknowledges the statute did not take effect until January 1,1996, and may or may not apply to this case, but argues the statute merely codified existing common law. In support, J.D. Reece cites the Minutes of the Senate Committee on Judiciary, April 7, 1995, p. 2; Minutes of the Senate Committee on Judiciary, March 21, 1995, p. 2 (BRRETA is a “comprehensive codification of real estate proceedings, liabilities, relationships of the parties in real estate transactions, etc.”).
We believe the common law existing at the time of the present transaction imposed a greater burden on statutory agents than that imposed by BRRETA. The pre-BRRETA license law required real estate brokers to disclose what they knew as well as everything they should have known about the condition of the property. K.S.A. 58-3062(a)(34); see also Johnson v. Geer Real Estate Co., 239 Kan, 324, 720 P.2d 660 (1986) (sellers told real estate broker they were on city sewer system; jury determined that, although sellers did not he and did not know property was on septic tank, the broker should have known). On the other hand, BRRETA requires brokers to disclose only what they actually know and to suggest to real estate consumers that they use independent third-party inspections on matters that are outside the real estate broker s expertise. See Jarboe, Brokerage Relationships in Real Estate Transaction Act, 68 J.K.B.A. 36 (May 1999). We determine that because this transaction was pre-BRRETA, the trial court erred in applying K.S.A. 1995 Supp. 58-30,107(a)(3)(D) and(b) to this case. '
The trial court also determined that because White had relied solely on the inspector s advice concerning the condition of the property, summary judgment in favor of J.D. Reece was proper. Although White relied on the oral report made by the inspector, Keller inserted himself in White’s dealings with the inspector. Keller told White not to accompany the inspector while he inspected the property. Keller drafted a list of repairs to be made and submitted them to White before she received the inspector’s report. After the repairs were completed, Keller told White that a reinspection of the property would be unnecessary.
“Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues.” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
We determine that genuine issues of material fact remained as to whether White relied solely on the inspector’s advice. The evidence indicates that Keller took an active role in determining what repairs were needed and what repairs would be made. As a result, Keller controlled the course of repairs that were to be made. The evidence further indicates that White relied on Keller’s advice that all necessaiy repairs had been completed and that a reinspection of the property was unnecessary. Keller’s assurances that the repairs had been made induced White to complete the purchase of the properly. As a result, the trial court erred in granting summary judgment on the disputed material fact as to whether White relied solely on the inspector’s advice concerning the condition of the property.
Finally, tire trial court granted summary judgment based on White signing the seller’s disclosure statement. J.D. Reece successfully argued that under die seller’s disclosure statement, White agreed that she would not rely on Keller or Cannon in determining the condition of the property. Further, Keller told White to secure an independent investigation of the property, which she did. As a result, J.D. Reece contends this limited Keller’s liability for any claims related to the condition of the property.
The seller’s disclosure statement stated “that neither SELLER nor BROKER is an expert at detecting or repairing physical defects in the Property.” Nevertheless, Keller abandoned his position of a neutral party concerning the condition of the property when he inserted himself into the middle of the independent investigation of the property. As stated earlier, Keller took control over the course of repairs to be made. When Keller received a copy of the inspection report, he was obligated to review the report to see if any other repairs needed to be made. Had Keller done this, he would have discovered the “[cjracking and inward movement [along] the east foundation wall,” and would have told White that the east foundation wall required correction. Moreover, under the dual agency agreement, Keller had a “duty to make a full, fair and timely disclosure of all material facts and information within [his] knowledge or readily available to [him] which might in any way affect either the Seller’s or the Buyer’s rights and interest or otherwise influence either party’s actions in connection with the contemplated transaction.”
J.D. Reece cites Hamtil v. J.C. Nichols Real Estate, 22 Kan. App. 2d 809, 923 P.2d 513 (1996), as dispositive of the issue of its liability. Hamtil involved a situation where the Hamtils were wanting to buy a house owned by the Herrstroms. The Hamtils were given a seller’s disclosure agreement stating the Herrstroms knew of no water leakage or damage in the house and were not aware of any foundation problems. The Hamtils contacted a home inspection company and a termite inspection firm. Neither reported any problems with the house.
Shortly after taking possession of the house, the Hamtils noticed water damage and rotted wood. They brought claims of negligence and negligent misrepresentation against the realty company. The realty company sought summary judgment, claiming the Hamtils were not relying on any representations made by the realtors. The trial court denied summary judgment, holding that the public policy of Kansas “should not allow the language set out in the Buyers Acknowledgment and Agreement ... to bar actions by home buyers against real estate brokers for negligent misrepresentation.” 22 Kan. App. 2d at 811.
In reversing, this court, citing Boegel v. Colorado Nat'l Bank of Denver, 18 Kan. App. 2d 546, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993), stated that courts will enforce contractual provisions entered into knowingly and voluntarily, and the realty company was entitled to summary judgment. The court also noted that the Hamtils inspected the property themselves on more than one occasion, relied on their own professional inspectors, and had the advice of an attorney before signing the buyers acknowledgement and agreement form. The court further considered the fact that the Hamtils wrote nothing in the space provided for representations upon which they were relying. 22 Kan. App. 2d at 813-14. The court stated in conclusion:
‘We further conclude that real estate brokers may protect themselves from negligent misrepresentation actions by disclaiming knowledge of the property’s defects and having a buyer or seller acknowledge such disclaimer. Such protection is not against public policy and, in fact, helps to clarify the law and the role of those involved in real estate matters.” 22 Kan. App. 2d at 814.
Although J.D. Reece claims that Hamtil shields Keller from any liability, Hamtil is distinguishable from the present case. Hamtil involved claims of negligence and issues of whether the agents should have known there were problems with the house. The present case involves a claim by White that J.D. Reece and its agents knew of structural problems with the house and failed to disclose them, although required to do so under the previously mentioned dual agency agreement. As a result, the Hamtil holding cannot be applied to the present case.
We determine that when a real estate broker s agent purposely injects himself or herself into the independent investigation of the property to the buyer’s detriment, the real estate broker and its agent cannot rely on the seller’s disclosure statement to shield themselves from liability.
As a result, the trial court erred in granting summary judgment to J.D. Reece based on the seller’s disclosure statement.
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Green, J.:
Alroy Vern Martens appeals his convictions of three counts of sale of marijuana and single counts of possession of marijuana with the intent to sell, possession of marijuana, cultivation of marijuana, possession of marijuana without a tax stamp, possession of drug paraphernalia, possession of methamphetamine, and manufacture or attempt to manufacture methamphetamine. On appeal, Martens argues (1) that the complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine; (2) that the evidence was insufficient to support his conviction of manufacturing methamphetamine; and (3) that the trial court erroneously allowed the late endorsement of State witnesses. We affirm.
In June and July of 1998, Martens sold marijuana to a confidential informant during a series of controlled buys. After conducting the controlled buys, officers obtained a search warrant for Martens’ residence. During the search, officers found various items relating to the cultivation of marijuana and the remnants of a methamphetamine lab.
Martens was charged with three counts of sale of marijuana and single counts of possession of marijuana with the intent to sell, possession of marijuana, cultivation of marijuana, possession of marijuana without a tax stamp, possession of drug paraphernalia, possession of methamphetamine, and manufacturing or attempting to manufacture methamphetamine. The case proceeded to a bench trial, and Martens was convicted of all 10 counts.
After the trial, Martens moved for an arrest of judgment alleging that the amended complaint was jurisdictionally defective in that it did not sufficiently charge the crime of attempted manufacture of methamphetamine. Martens argued that the amended complaint failed to state the required elements of an attempt. The trial court denied the motion to arrest judgment after finding that K.S.A. 1997 Supp. 65-4159 prohibits both manufacturing and attempting to manufacture a controlled substance and, therefore, found the amended complaint sufficient to support the charge and conviction.
The trial court sentenced Martens to a controlling term of 49 months’ incarceration for manufacturing or attempting to manufacture methamphetamine. In addition, Martens was sentenced to a term of 15 months for each conviction of sale of marijuana, to run consecutive to each other but concurrent to the base sentence. All of the other counts were concurrent to the base sentence.
Defective Complaint
Martens’ first argument on appeal is that the trial court erroneously denied his motion to arrest judgment as to the charge of manufacturing or attempting to manufacture a controlled substance. Martens insists that the amended complaint, relative to the charge of manufacturing or attempting to manufacture a controlled substance, was fatally defective because it failed to include the essential elements of attempt. Martens insists that the State was required to allege the elements of attempt because K.S.A. 1997 Supp. 65-4159 creates the offense of manufacture of a controlled substance and, as a result, attempted manufacture of a controlled substance is a separate offense created under the attempt statute. According to Martens, because attempted manufacture of a controlled substance is a separate offense, the essential elements of that offense were required to be set out in the amended complaint.
The State admits that the amended complaint fails to allege the elements of attempt. However, the State contends that it was not required to list the elements of attempt because K.S.A. 1997 Supp. 65-4159 creates the single offense of manufacturing or attempting to manufacture a controlled substance. Specifically, the State argues that because the statute criminalizes the process of manufacturing a controlled substance, without requiring a finished product, the statute encompasses the attempt to manufacture by definition: Thus, according to the State, reference to “attempting to manufacture” in K.S.A. 1997 Supp. 65-4159 is superfluous.
Because Martens timely moved to arrest judgment, the rationale of pre-Hall cases is applicable. See State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990). In State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989), a pre-Hall case, the court held that “[a]n information which omits one or more of the essential elements of a crime is fatally defective and reversal of a conviction on that offense is required. [Citation omitted.]” Citation to the statute cannot substitute to supply a missing element of the charge. Incorporation by reference cannot be implied or inferred. It must be explicit. State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986).
In State v. Sanford, 250 Kan. 592, 600, 830 P.2d 14 (1992), the court held that the trial court lacked jurisdiction over the charge of aggravated kidnapping because the amended information did not contain the elements of the crime. See State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996) (reversing defendant’s convictions of attempted aggravated sodomy and attempted rape because complaint merely alleged the elements of attempt and the name of the offenses he was charged with attempting); Hall, 246 Kan. at 747 (reversing defendant’s conviction of theft because the complaint failed to allege that the defendant intended to permanently deprive the owner of his cattle); State v. Smith, 245 Kan. 381, 781 P.2d 666 (1989) (reversing defendant’s conviction of aggravated kidnapping because the complaint made no allegation that bodily harm had been inflicted).
The amended complaint charged Martens with violating K.S.A. 1997 Supp. 65-4159, manufacturing or attempting to manufacture a controlled substance. Specifically, count 5 of the amended complaint alleged that between March 1, 1998, and July 9,1998, Martens “did then and there unlawfully, wilfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.”
To determine whether the amended complaint was jurisdiction-ally defective, we must first determine whether K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing or attempting to manufacture a controlled substance, or whether the statute merely creates the offense of manufacturing a controlled substance and attempted manufacturing of a controlled substance is created under the attempt statute, K.S.A. 21-3301. Interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of die legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to die intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
K.S.A. 1997 Supp. 65-4159 is titled, in part, as “Unlawful manufacturing or attempting such of any controlled substance.” The title of the statute, however, is not dispositive to the issue of whether the statute creates a single offense because “[t]he title or caption prefacing the text of a statute is prepared by the revisor of statutes (K.S.A. 77-133[b]) and ‘forms no part of the statute itself.’ [Citation omitted.]” State v. Larson, 12 Kan. App. 2d 198, 201, 737 P.2d 880 (1987).
Section (a) of K.S.A. 1997 Supp. 65-4159 states as follows: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” (Emphasis added.) We interpret this subsection as providing the elements of the offense. The only means of violating the statute is manufacturing a controlled substance or a controlled substance analog. Because the statute does not specify attempted manufacture of a controlled substance as a means of violating the statute, attempted manufacture of a controlled substance is a separate offense created under K.S.A. 21-3301(a). This interpretation is supported by PIK Crim. 3d 67.21-A (1999 Supp.), which lists manufacture of a controlled substance, not attempted manufacture, as the means of violating K.S.A. 1997 Supp. 65-4159.
K.S.A. 1997 Supp. 65-4159 also contains a penalty section, which provides that “[a]ny person violating the provisions of this section with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance or controlled substance analog” is guilty of a drug severity level 2 felony for the first offense and a drug severity level 1 felony for second and subsequent offenses. K.S.A. 1997 Supp. 65-4159(b)(l) and (2). Subsection (c) of the statute states that “[t]he provisions of subsection (d) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to unlawfully manufacture any controlled substance pursuant to this section.” K.S.A. 1997 Supp. 65-4159(c).
K.S.A. 21-3301(d) states that “[a]n attempt to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.” Because K.S.A. 21-3301(d) is not applicable to violations of attempting to manufacture a controlled substance, the same sentence is imposed for both manufacturing a controlled substance and attempting to manufacture a controlled substance. Moreover, since K.S.A. 1997 Supp. 65-4159(c) only excepts application of subsection (d) of K.S.A. 21-3301, the remaining subsections of the attempt statute are applicable and operate to create the offense of attempting to manufacture a controlled substance.
K.S.A. 21-3301(a) provides: “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” Because count 5 of the amended complaint failed to incorporate the elements of attempt, that portion of the amended complaint was fatally defective. As a result, the trial court lacked subject matter jurisdiction over the charge of attempting to manufacture a controlled substance.
Nevertheless, because the State charged Martens with both manufacturing or attempting to manufacture a controlled substance, we must determine if the State alleged the essential elements of manufacturing a controlled substance. As stated earlier, the amended complaint stated that between March 1, 1998, and July 9, 1998, Martens “did then and there unlawfully, wilfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.”
The amended complaint states that the act of manufacturing a controlled substance was done in an “unlawful” manner, which although failing to recite all details, still fully informed Martens of the crime with which he was charged. Because manufacturing of methamphetamine under K.S.A. 65-4159 is unlawful and because the facts alleged in the amended complaint constitute an offense within the terms and meaning of that statute, the amended complaint is not jurisdictionally defective. See State v. McMannis, 12 Kan. App. 2d 464, 467-68, 747 P.2d 1343 (1987), rev. denied 242 Kan. 905 (1988). The McMannis court rejected the defendant’s argument that the State failed to allege the required elements of possession of drug paraphernalia, holding that “an information charging a defendant with possession of drug paraphernalia need not allege the purpose for which the defendant possessed the items.” 12 Kan. App. 2d 464, Syl. ¶ 4.
Next, Martens argues that the evidence was insufficient to support his conviction of manufacturing methamphetamine. We disagree. The evidence showed that Martens manufactured methamphetamine, because he admitted to officers that he tried to manufacture methamphetamine through an ephedrine reduction method. Martens told the officer that he went through the manufacturing process only once because it was virtually impossible to obtain the necessary chemicals. Because Martens admitted that he manipulated chemicals in an effort to produce methamphetamine, and because his admission was supported by physical evidence, we find that the evidence was sufficient to support his conviction for manufacturing methamphetamine.
Endorsement of Witnesses
Martens additionally contends that the trial court erred in allowing the late endorsement of two State witnesses. The right of the State to endorse additional witnesses fies in the sound discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a showing of abuse of discretion. The test is whether the defendant’s rights have been prejudiced. State v. White & Steward, 225 Kan. 87, 91, 587 P.2d 1259 (1978).
After the trial began, the State endorsed two additional witnesses, Bradley Crowe and Kamala Hinnergardt, who were K.B.I. chemists. The trial court allowed the late endorsement because the complaint listed a K.B.I. chemist as a witness and because defense counsel had reports from Crowe and Hinnergardt regarding the items they tested. The trial court concluded that the witnesses were predictable and allowing their testimony did not prejudice Martens.
Under the circumstances, we conclude that the trial court did hot abuse its discretion in permitting the late endorsement of two State witnesses. Use of the witnesses did not result in surprise or material prejudice to Martens preventing a fair preparation of his defense. See State v. Wilson & Wentworth, 221 Kan. 359, 364-65, 559 P.2d 374 (1977). Moreover, there is no showing that he was surprised by the testimony or that he was required to change his trial strategy. As a result, we find that Martens has not sustained his burden of estabhshing prejudice.
Affirmed. | [
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Beier, J.:
Paul A. Seibel appeals the district court’s imposition of an upward durational departure on his sentence for voluntary manslaughter. Following State v. Gould, 271 Kan. 394,23 P.3d 801 (2001), we reverse and remand for resentencing.
On July 31, 1998, Seibel and several others engaged in a party at a residence in Shawnee County, Kansas. All the participants were drinking heavily, including beer and hard liquor.
At some point an argument ensued between Seibel and the victim, Edgar Becker, regarding Becker drinking more than his share of the alcohol. After the initial altercation, Becker began vomiting. Seibel helped Becker to the bathroom to clean himself up. Becker then returned to the living room and lay down on the couch to sleep it off.
Exactly what happened next is unclear. Witnesses reported that Seibel began beating and kicking Becker and jumping on his chest. Witnesses reported that another member of the party, John Dority, assisted in the beating. After the beating, Seibel dragged the unconscious Becker out to the back porch where he lay for several hours. A neighbor noticed flies gathering around Becker and called 911. Becker was pronounced dead at the scene.
Seibel was charged with second-degree murder. He pleaded guilty to voluntaiy manslaughter and stipulated to the State’s evidence against him. The State requested the imposition of an upward departure, because Seibel knew the victim was in a vulnerable state at the time of the attack and the crime was committed with excessive brutality. The district court granted the State’s request, imposing the top range of the sentence, 64 months, plus an additional 12 months, for a total of 76 months in prison. Seibel timely appeals.
We conclude that the sentencing court’s findings of fact and reasons justifying a departure are supported by evidence in the record and constitute substantial and compelling reasons for departure as a matter of law. See K.S.A. 21-4721(d). However,
“[t]he notice and jury trial guarantees of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require that a factual determination resulting in an increase in the maximum prison sentence for an offense beyond the sentence established in the appropriate grid box under K.S.A. 2000 Supp. 21-4704 be made by a jury beyond a reasonable doubt.” Gould, 271 Kan. 394, Syl. ¶ 2.
“An upward departure sentence imposed on a defendant by a judge under K.S.A. 2000 Supp. 21-4716 is a violation of the defendant’s Sixth Amendment rights and Fourteenth Amendment Due Process rights and, thus, is unconstitutional. The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.” Gould, 271 Kan. 394, Syl. ¶ 3.
The holding in Gould applies to this pending case. Accordingly Seibel must be resentenced in district court consistent with Gould.
Reversed and remanded for resentencing. | [
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Knudson, J.:
Donald James Baum appeals from the imposition of a departure sentence after pleading nolo contendere to attempted sexual exploitation of a child, a severity level 7 person felony. See K.S.A. 2000 Supp. 21-3516; K.S.A. 21-3301(c).
On its own motion, the sentencing court imposed a dispositional departure because during the presentence investigation Baum denied committing any crime. Dr. Carolyn Huddleston, a psychologist, testified at the departure hearing that Baum’s protestation of innocence ruled him out as a candidate for participation in a sex offender program and without such participation Baum remains a danger to society.
Two issues are raised on appeal: (1) Are there substantial and compelling reasons to support a departure; (2) does the finding of an aggravating factor with imposition of a dispositional departure sentence violate Baum’s constitutional rights under the Sixth and Fourteenth Amendments?
Before turning to a discussion of the issues and the rationale in support of our decision, we must express our consternation regarding the State’s failure to file an appellate brief. There are substantial issues presented in this appeal. The State’s indifference may suggest a lack of confidence in the sentence imposed. See Zapata v. State, 14 Kan. App. 2d 94, 99, 782 P.2d 1251 (1989). We would add a further concern that such indifference is inconsistent with an attorney’s duties to the court and client.
We must first consider whether there is a substantial and compelling reason to support the district court’s decision to impose a dispositional departure sentence. We begin with a summary of the proceedings below.
Baum was initially charged with aggravated indecent liberties with a child, contrary to K.S.A. 21-3504(a)(3)(A), a severity level 3 person felony. Under a plea agreement, the charge was subsequently amended to attempted sexual exploitation of a child under K.S.A. 2000 Supp. 21-3516 and K.S.A. 21-3301(c). Baum’s criminal history is E. Aggravated indecent liberties would have carried a presumptive sentence of imprisonment between 82 to 92 months, whereas for attempted sexual exploitation of a child the presumptive sentence was probation with an underlying sentence of 19 to 23 months. K.S.A. 2000 Supp. 21-4704(a).
During the plea hearing, the State indicated it would not seek a departure. The court thoroughly questioned Baum on his understanding of the plea process, the potential penalties for the crime, and his satisfaction with counsel, and the court informed Baum that it had authority to move for a departure notwithstanding the State’s announcement.
Baum stated an intent to pleád nolo contendere to the amended charge. We note the court erroneously informed Baum he would waive his Fifth Amendment rights against self-incrimination once he entered a nolo contendere plea to the charge. See State v. Longobardi, 243 Kan. 404, 409, 756 P.2d 1098 (1988).
The State submitted the following factual basis to support the charge and plea:
“Your honor, we believe that if evidence were presented it would show that the defendant attempted, of a child under 18 years of age, to perform a sexual act, which was sexually explicit conduct, knowing the character and content but failed or was prevented in the completion of said crime.”
The court accepted Baum’s plea of nolo contendere, found him guilty, and ordered a presentence evaluation. When completed, the presentence evaluation recommended imposition of the presumptive sentence and completion of a sex offender treatment program during probation.
As part of the presentence investigation, Dr. Carolyn Huddles-ton, a self-employed, licensed psychologist, evaluated Baum for admittance into a local sex offender treatment program. Dr. Huddleston submitted a written report to the court recommending incarceration rather than probation. Dr. Huddleston’s report triggered a departure hearing upon the court’s own motion. At the departure hearing, Dr. Huddleston gave the following pertinent testimony:
“Q. . . . [A]s a result of your interviews with the defendant did you make any recommendations for the Court?
“A. Yes, I did.
“Q. What are those recommendations?
“A. He didn’t appear to be a candidate for any type of treatment in that he indicated he hadn’t done anything, total denial of what he’s been accused of which kind of rules him out for being a candidate for sex offender treatment program from the training that I’ve had. And, if the—I read some papers that [the court service officer] had sent that had to do with the Court, charges and different stuff, and there was a paper from—like a note the little girl had written and when I read that, that had the ring of truth to me. I felt that he . had done it. If he—based on that assumption that he has done it and that he isn’t a candidate for treatment because he totally denies any problem and isn’t willing to taire a look at any of those issues, then he would be a danger to society since sex offenders are prone to repeat. And, if the person’s controls weaken to the point that one incident occurs, typically some other incident is going to occur in the future unless treatment intervenes. So, I recommended his incarceration.”
Baum testified that he had done nothing improper and only took the plea because of the reduced charge and presumptive sentence.
In imposing the departure sentence, the district court stated the following findings:
“It will be the order of the Court that the standard sentence of 21 months will be imposed. It will be the further order of the Court that an upward dispositional departure is ordered. The reason for the upward dispositional departure is the conclusion of Dr. Huddleston that Mr. Baum is dangerous to society without treatment and that treatment cannot be adequately provided because of his refusal to acknowledge any need for treatment.
“I note that he is willing to go to treatment for other things. Would be kind of like having appendicitis and going in to have your toenail operated on. It would not affect the problem that you have.
“It is the opinion of the Court that Mr. Baum without treatment, sex offender treatment, is of high probability to reoffend because he is not susceptible to treatment at this time.”
Under the uncontroverted facts, the issue we must resolve is whether Baum’s refusal to admit guilt is a substantial and compelling reason to support imposition of a departure sentence.
Whether the sentencing court adequately articulated the required reasons to support the upward dispositional departure is subject to de novo review. The court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. The court’s comments at the time of sentencing govern as to the reasons for departure. State v. Jackson, 262 Kan. 119, 135, 936 P.2d 761 (1997).
“The term ‘substantial’ means something that is real, not imagined, something with substance and not ephemeral. The term ‘compelling’ implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.” State v. Eisele, 262 Kan. 80, 84, 936 P.2d 742 (1997).
We acknowledge that a defendant’s unamenability to probation, when that fact has been supported by the underlying circumstances, has been hel<d to be a substantial and compelling reason supporting a departure sentence. See State v. Meyer, 25 Kan. App. 2d 195, 197, 960 P.2d 261, rev. denied 265 Kan. 888 (1998).
It is indisputable Baum would have been placed on probation but for his protestation of innocence. Conversely, an admission of guilt would have been rewarded with probation. Thus, he is to be incarcerated not for what he may have done, but for having the temerity to maintain his innocence. We find this an unacceptable consequence absent any findings that would otherwise support the departure sentence.
We find instructive the reasoning of the Montana Supreme Court in State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991). The defendant, Imlay, was convicted by a jury of sexual assault. He was ordered to enter a treatment program for sexual offenders in lieu of incarceration because he had an extensive history of full-time employment and no prior criminal history. Imlay entered the treatment program and attended a number of sessions before being told by the therapist he no longer qualified for the program as he refused to admit guilt. As a result, the trial court ordered Imlay to serve the underlying sentence.
On appeal, the Montana Supreme Court observed that Imlay’s incarceration occurred because the defendant had refused to admit guilt. The court held: “While the sentencing judge may take into account his belief that the defendant was not candid with the court this is to be distinguished from the rule that a sentence may not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination.” 249 Mont, at 88-89.
We adopt the reasoning of the Imlay court to support its holding. Here, there was no substantial competent evidence presented as to whether Baum committed the underlying criminal offense. Additionally, the trial court did not find Baum was not candid. We conclude there has been no showing of substantial and compelling reasons to support the dispositional departure sentence imposed by the court.
Our ruling makes unnecessary a determination of whether a upward dispositional departure is unconstitutional under State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
Sentence vacated and case remanded for resentencing. | [
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Gernon, J.:
Farm Bureau Mutual Insurance Company, Inc., (Farm Bureau) appeals the denial of its motion for attorney fees and expenses it had requested to be paid by Valda Fletcher.
The history of this case spans a period of over a decade and is detailed in a well-reasoned opinion by Judge Lewis in Fletcher v. Anderson, 27 Kan. App. 2d 276, 3 P.3d 558 (2000) (Fletcher I).
Fletcher I concerned whether Farm Bureau was bound by a consent agreement it had not agreed to or participated in negotiating. This court ruled that Farm Bureau did not act unreasonably or in bad faith in refusing to pay the amount of the consent judgment. 27 Kan. App. 2d at 289. We ordered the case remanded with directions to enter summary judgment in favor of Farm Bureau. 27 Kan. App. 2d at 290-91.
Armed with our opinion, Farm Bureau moved for attorney fees. The trial court entered summary judgment in favor of Farm Bureau but denied its request for attorney fees. The trial court found that good cause existed for Fletcher to controvert Farm Bureau’s answer to an order of garnishment.
The statute involved, K.S.A. 2000 Supp. 60-721(a)(5), reads: “[I]f the answer of a garnishee is controverted without good cause, the court may award the garnishee judgment against the party controverting such answer damages for his or her expenses, including reasonable attorneys’ fees, necessarily incurred in substantiating the same.” (Emphasis added.)
Although not defined within 60-721(a), the phrase “without good cause” is equivalent to the phrase “without just cause or excuse,” which has been defined by our Supreme Court.
The phrase “without just cause or excuse” is used in K.S.A. 40-256, a statute dealing with attorney fees in actions relating to insurance policies. K.S.A. 40-256 provides, in part:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company ... if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as part of the costs.” (Emphasis added.)
The language “without just cause or excuse” has been interpreted to mean that the denial of the claim was frivolous, unfounded, and “ ‘patently without any reasonable foundation.’ ” Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 131, 992 P.2d 800 (1999) (quoting Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 494, 608 P.2d 903 [1980]).
Attorney fees must be denied “when there existed a good faith legal controversy as to liability.” Clark Equip. Co., 227 Kan. at 494. “If there is a bona fide and reasonable factual ground for refusing to pay a claim, attorney fees are not awardable.” 227 Kan. at 494. What rises to the level of an insurance company’s refusal to pay “without just cause or excuse” under K.S.A. 40-256 varies with each case. 227 Kan. at 493-94.
. “The assessment of costs and attorney fees lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. If any reasonable person would agree with the trial court’s decision, appellate courts will not disturb the trial court’s decision. [Citation omitted.]” In re Estate of Mater, 27 Kan. App. 2d 700, 711, 8 P.3d 1274, rev. denied 270 Kan. 898 (2000). This is an extraordinarily high standard.
Fletcher I held that it would be a “miscarriage of justice” to find that Farm Bureau should be bound by the consent agreement. 27 Kan. App. 2d at 287. The opinion further found that the judgment in Fletcher I was not arrived at in good faith. 27 Kan. App. 2d at 290. However, nowhere in Fletcher I was it stated that Fletcher’s controverting of Farm Bureau’s answer was frivolous, unfounded, or unreasonable.
The record discloses that Fletcher based her assertions on a prior trial, which attached a portion of fault to Jed Anderson. Under these circumstances, it was not unreasonable for Fletcher to look to Anderson’s insurer for some or all of the judgment, however it had been arrived at.
We note also that Farm Bureau, in filings with this court in the previous appeal, wrote that this was a case of first impression and a good-faith controversy.
Given the rulings and the filings before us, we cannot hold that the trial court abused its discretion in denying attorney fees and costs.
Farm Bureau next argues that the district court erred in finding that the advice of counsel is a defense to a claim for attorney fees under K.S.A. 2000 Supp. 60-721(a)(5).
The district court made the following findings of fact: Fletcher was represented by a very capable attorney who is acknowledged as an expert in this type of litigation, Fletcher relied on the advice of counsel when controverting Farm Bureau’s answer, and Farm Bureau filed a motion for attorney fees and expenses on the ground that the controversion of the answer was without good cause.
The court concluded that good cause existed for Fletcher to controvert the answer. The court stated that several motions for summary judgment were ruled on in favor of Fletcher and against Farm Bureau. The court stated that the testimony of Craig Kennedy, a witness for Fletcher, affirmed the court’s opinion on the matter.
Fletcher’s reliance on the advice of counsel would not absolve Fletcher if her reply had been filed “without good cause.” The district court’s finding regarding Fletcher’s reliance on the advice of counsel does, however, further support the notion that good cause existed to controvert the answer. Even though Fletcher ultimately failed, her attorney, a touted expert in insurance litigation, believed that Fletcher had a vahd claim against Farm Bureau. This does, contrary to Farm Bureau’s assertions, bolster the finding that Fletcher had good cause to controvert Farm Bureau’s answer.
Farm Bureau also argues that the district court erred by allowing testimony at the hearing on its motion for attorney fees and expenses that it claims impeached this court’s previous ruhng in Fletcher I and invaded the province of the court.
The testimony complained of was given by Kennedy. Fletcher’s counsel asked Kennedy, an attorney in the field of insurance litigation for 20 years, to give an expert opinion with regards to whether Fletcher had good cause to controvert Farm Bureau’s answer. Farm Bureau lodged an objection, which was overruled, and Kennedy testified that his opinion was that Fletcher’s reply was with good cause. Kennedy was allowed to explain his opinion and include case law to support his position.
“ The admissibility of expert testimony is a matter to be determined by the trial court in the exercise of its discretion.’ . . . [Citations omitted.]” City of Dodge City v. Hadley, 262 Kan. 234, 239, 936 P.2d 1347 (1997). “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.” Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).
K.S.A. 60-456(b) states that if a witness testifies as an expert, such testimony in the form of opinions or inferences is limited to such opinions as the judge finds are: “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” Unless the judge excludes the testimony, K.S.A. 60-456(c) states that “he or she shall be deemed to have made the finding requisite to its admission.”
By allowing Kennedy’s testimony, the court is deemed to have made the findings required by K.S.A. 60-456(b) requisite to its admission. Such testimony is not objectionable because it embraced the ultimate issue of whether Fletcher had good cause to controvert Farm Bureau’s answer. See K.S.A. 60-456(d). The testimony was helpful to the court in understanding the facts of the case and in determining what constituted good cause. The testimony did not impeach this court’s prior ruling or invade the province of the court. The trial court did not abuse its discretion in allowing Kennedy’s testimony.
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Beier, J.:
Plaintiffs-appellants appeal the district court’s decision to grant the defendant banks’ motions to dismiss. The district court ruled that plaintiffs’ claims were barred by the statute of repose. We affirm.
The parties appear to agree that plaintiffs Benjamin W. Stark, Allan Breed Stark, Mary Breed Brink, Barbara Chapman, Martha McCormick, Nancy Gee, Ruth Hanna, and Thomas Millar are beneficiaries of a trust created in 1949 by J. Rolland Prentice Breed, who died in 1951. The assets held by the trust include a parcel of land located at 75th and Metcalf in Overland Park, Kansas.
Plaintiffs take issue with a commercial lease of the land, entered into in 1957 by Breed’s executors and the trustee, Johnson County National Bank & Trust Co. (Johnson County Bank), on the one hand and Southwest Development Company, Inc., (Southwest) on the other. Their petition named Mercantile Bank, N.A., (Mercantile) as a defendant because it is the successor in interest to Johnson County Bank. Johnson County Bank was appointed a trustee for the parcel of land because First National Bank of Kansas City, N.A., (First National), the original trustee, was precluded from acting as a trustee for a property located in Kansas.
The lease provided for an initial term of 51 years and an option to renew for an additional 25 years. The annual rent for the first 2 years was $7,286, and the annual rent for the remaining years was $11,656. Additional rent of $1,200 per year was to be paid if sales from the leased premises exceeded $5 million per year. A provision was also made for a .5 percent annual adjustment of the additional rent during the renewal period.
Before the lease was executed, the Johnson County probate court held a hearing at the behest of the attorney appointed to represent the interests of the unborn, unascertained, minor, or legally disabled beneficiaries of the trust, a group of individuals that apparently included all of the plaintiffs. Johnson County Bank was placed on strict proof of its contention that it had
“made an exhaustive investigation in regard to persons who might be interested in leasing said property and after obtaining several offers with respect thereto has determined in its best judgment that a certain offer of lease made by Southwest Development Company, Inc., ... is the most favorable one that can be obtained.”
At the conclusion of the hearing, the probate court ruled that the lease was in the best interests of the trust estate and the beneficiaries and authorized its execution.
Subsequently, Southwest subleased the land to Katz Drug Company. A new building was constructed which housed a Katz Drug Store. The heart of plaintiffs’ case is their allegation that Isaac Katz was one of the principals of Katz Drug Company, was on the board of Johnson County Bank, and was an influential customer of First National. Plaintiffs’ position is that Mr. Katz’ multiple roles inevitably resulted in a conflict of interest that polluted the lease transaction, artificially depressing the rental rate and making the lease commercially unreasonable. Defendants, for their part, state that the allegation is untrue, alleging that Katz’ death predated the lease.
Johnson County Bank resigned and withdrew as trustee in September 1985, and the probate court appointed Boatmen’s First National Bank of Kansas City (Boatmen’s) as substitute. Defendant NationsBank, N.A., (NationsBank) is the successor to Boatmen’s. On the exit of Johnson County Bank, the probate court observed that the bank’s accounts “should be settled and allowed and all of its acts and proceedings as trustee have been in accordance with law and the orders of this Court and are approved.”
The record reflects that plaintiffs filed suit against Mercantile and NationsBank on December 1, 1998. Their Second Amended Petition eventually alleged breach of fiduciary duty, fraud, and gross negligence—all claims flowing from the alleged conflict of interest involving Katz. Each defendant bank filed a motion to dismiss based on the statute of repose and a motion for summary judgment based on the doctrines of res judicata and collateral estoppel.
Plaintiffs argued in response to the motions that (1) the statute of repose set forth in K.S.A. 60-513(b) cannot be applied to causes of action based on wrongful conduct predating its enactment; (2) the statute of repose does not apply to their fraud claim; and (3) none of the requirements for the application of the doctrines of res judicata or collateral estoppel could be met in this case.
The district court ruled in defendants’ favor on the motions to dismiss, finding plaintiffs’ various claims barred by the statute of repose. It then held that the summary judgment motions based on res judicata and collateral estoppel were moot and did not address their merits.
Standard of Review
Our standard of review when a motion to dismiss has been granted in the district court was restated in Colombel v. Milan, 24 Kan. App. 2d 728, 952 P.2d 941 (1998):
“ ‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiffs favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’
“ ‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ ” 24 Kan. App. 2d at 729 (quoting Ripley v. Tolbert, 260 Kan. 491, Syl. ¶¶ 1, 2, 921 P.2d 1210 [1996]).
Further, when the issue before us requires interpretation of a statute, we are faced with a question of law, and an appellate court’s review of a question of law is unlimited. Decker v. Kansas Dept. of SRS, 24 Kan. App. 2d 155, 157, 942 P.2d 667, rev. denied 262 Kan. 960 (1997). Review of the district court’s ruling requires us to interpret the meaning and potential applicability of statutes of limitation and repose.
General Applicability of Statute of Repose
Plaintiffs first argue that the statute of repose found in K.S.A. 60-513 is inapplicable to their claims because it was not enacted until 1987. That statute now reads in pertinent part:
“(a) The following actions shall be brought within two years:
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
“(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.
“(e) The provisions of this section as it was constituted prior to July 1, 1996, shall continue in force and effect for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.” K.S.A. 1999 Supp. 60-513.
Before K.S.A. 60-513 was amended in 1996, it provided that the section as written before July 1,1987, would continue in force “for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.” The statute was rewritten in 1987 to include language effective to bar a suit when 10 years had passed since the wrongful act giving rise to it. See Harding v. K. C. Wall Products, Inc., 250 Kan. 655, 659-60, 831 P.2d 958 (1992).
Plaintiffs argue that the statute of repose is substantive rather than procedural and therefore cannot be applied retroactively to their claims. Rather, they insist, their causes of action are governed by the statute in effect in 1957, G.S. 1949 60-306, that required civil actions “for injury to the rights of another, not arising on contract, and not hereinafter enumerated” and “for relief on the ground of fraud,” which accrued on discovery, to be brought within 2 years. Because the 1957 version of the statute contained no repose language barring suit 10 years after the act giving rise to the cause of action, plaintiffs argue that their claims were still viable 41 years after the execution of the lease.
We do not agree.
Although plaintiffs are correct that statutes of repose have been characterized as substantive while statutes of limitation have been characterized as procedural, our Supreme Court has invoked the distinction to protect potential defendants from having claims against them revived rather than to preserve potential plaintiffs’ claims into infinity. See Shirley v. Reif, 260 Kan. 514, 523-27, 920 P.2d 405 (1996); Harding, 250 Kan. at 669. In addition, we do not believe defendants seek an impermissible retroactive application of the statute of repose to wrongful conduct predating its enactment. Rather, they seek prospective application of the statute to a lawsuit filed many years later.
Moreover, the Kansas Supreme Court has opined that claims arising out of conduct predating the 1987 amendment by 10 years or more would be barred if filed after the expiration of the 2-year grace period in 1989. See Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 694-700, 829 P.2d 578 (1992).
We have no difficulty discerning legislative intent to erect a final, nonnegotiable bar to stale claims in the creation and articulation of the 10-year time limit of K.S.A. 60-513 and its companion 2-year transitional grace period. “ ‘ “It is presumed the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation.” ’ ” 250 Kan. at 697-98 (quoting Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 121-23, 631 P.2d 222 [1981]) (interpreting 2-year grace period as applied to medical malpractice action). And our interpretation is supported by the general rule that statutes must be construed to avoid unreasonable results. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). It would certainly be unreasonable if K.S.A. 60-513 was twisted to close the courthouse door to plaintiffs who wished to sue on wrongful acts committed after 1987 while it welcomed those pursuing redress for wrongful acts even more remote in time. The district court was correct in holding that 60-513 should be applied to determine the viability of plaintiffs’ claims.
Fraud and the Statute of Repose
Plaintiffs’ second argument is that a statute of repose cannot apply to a fraud claim and that each of their causes of action is based on an allegation of fraud on the part of the defendant banks. They cite two decisions in support of their argument that the statute cannot apply to fraud claims: Jennings v. Jennings, 211 Kan. 515, 527, 507 P.2d 241 (1973), and Robinson v. Shah, 23 Kan. App. 2d 812, 814-16, 936 P.2d 784 (1997). Both cases demonstrate that plaintiffs’ claims do not fit any fraud exception to the statute of repose.
In Jennings, plaintiffs sued when they discovered that certain stock expected to be transferred and delivered to them had already been assigned by the donor/trustee to another family member. In terpreting the predecessor statute to K.S.A. 60-513, the court held that the action could proceed. 211 Kan. at 527. The beneficiaries of the trust were not charged with the duty to investigate the action of the trustee “until such facts as would prompt a normal alert person to make further inquiry are known.” 211 Kan. at 524.
In Robinson, the plaintiff patient brought suit less than 2 years after she discovered her physical problems were caused by surgical sponges left in her abdomen but more than 10 years after her physician began concealing the presence of the sponges. A panel of this court held that the fraudulent concealment of the physician tolled the statute of limitations and the statute of repose on the plaintiff s fraud claim. 23 Kan. App. 2d at 826. In essence, our court refused to permit the physician to shield herself from liability through active misrepresentation to a person incapable of discovering the truth on her own.
We do not dispute that these cases support the general idea plaintiffs seek to promote: Fraud and fraudulent concealment either toll the statute of repose or make it inapplicable. However, the facts of this case, as alleged in the second amended petition, fall far short of fraud or fraudulent concealment.
In this case, there is nothing in the pleadings that begins to explain why the plaintiffs failed to file their lawsuit for 41 years or why that delay should be laid at the feet of defendants. Nowhere does it say how or why plaintiffs, who were represented by counsel in the probate proceeding, and who apparently enjoyed long relationships with the original beneficiaries, could have been unaware of or misled about what obviously became a bargain rental rate for the property much more than 2 years before the filing of the suit. Nowhere is it explained how any alleged relationship between Katz and the predecessors of the defendant banks actually led to fraud or fraudulent concealment of pertinent information about a more commercially reasonable rental rate. At oral argument, counsel for plaintiffs conceded that the only evidence the Katz relationship was concealed was that “one uncle” was not told about it. At no time have we been told what finally prompted plaintiffs to make the sort of inquiry about the facts that the long-term lease at a remarkably low rate should have prompted in a “normal alert person” or when it occurred. On the coiitrary, it appears plaintiffs may have merely chosen to wait until the original beneficiaries and executors were deceased or otherwise out of the picture.
In short, plaintiffs have failed to demonstrate that they have any cause of action for fraud or fraudulent concealment that withstands or avoids application of the statute of repose. Even under Jennings and Robinson, a plaintiff cannot be deliberately ignorant regarding the behavior of his fiduciary and blame any more complete understanding acquired later on the fiduciary’s fraud. Even if plaintiffs could prove a nondisclosure of the Katz relationship in this case, not every nondisclosure is fraud or fraudulent concealment. See Robinson, 23 Kan. App. 2d at 820. Plaintiffs fail to state a claim for which relief can be granted, and dismissal under K.S.A. 60-212(b)(6) was appropriate.
Affirmed.
We find no support for this basic fact in the appellate record other than references of counsel to the plaintiffs as beneficiaries and an assumption made by the district court in its decision. We also note that the last names of several, but not all, of the plaintiffs listed in the caption of the Second Amended Petition correspond to the last names of certain of Breed’s children, leading us to the deduction that at least those individuals are descendants whose rights derive from those of their parents. It would have been helpful if plaintiffs had, at some point, set out enough of a personal history to connect each to the subject matter of the dispute. | [
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Paddock, J.:
Rex Romaine Bahr appeals the maintenance award for his former wife Ella Marie Bahr.
This is the second appeal by Rex concerning the maintenance award fashioned by the trial court upon dissolution of his marriage with Ella.
In initially awarding maintenance, the trial court held it could consider, but not divide, Rex’s veteran administration’s (VA) disability benefits. Rex appealed, claiming among other things, that the trial court could not consider his disability benefits when arriving at a maintenance award for Ella.
On appeal, in an unpublished opinion, this court affirmed the trial court on all claims of error alleged by Rex with the exception of the maintenance award. Although the maintenance award was reversed, this court did not conclude that the trial court’s maintenance award was erroneous. Rather, the case was remanded with instructions that the trial court consider the impact in the award of the Uniform Services Former Spouse’s Protection Act, 10 U.S.C. § 1408 (1994) (the Act), and the decisions in Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989), and In re Marriage of Pierce, 26 Kan. App. 2d 236, 982 P.2d 995, rev. denied 268 Kan. 887 (1999). In re Marriage of Bahr, unpublished opinion No. 82,344 filed February 18, 2000. Slip op. at 2-3.
Upon remand, the trial court abated the payment of maintenance pending disposition of the case. Again, acknowledging that federal law does not permit a state court to divide VA disability benefits as marital property, the district court again concluded that federal law does not bar a state court from considering the receipt of such benefits when equitably dividing marital property. The district court ordered that consideration of the Act did not require an amendment to the property distribution initially ordered. The court reimposed its initial maintenance award, including $37,502.20 in back payments for the period during which maintenance payments were abated.
When a district court decision is reversed and remanded for further proceedings, the district court is obliged to effectuate the mandate from the appellate court and may not consider additional matters not necessary to implement the ruling of the appellate court. Upon a second appeal, an appellate court must consider only whether the district court properly implemented the mandate, which is a question of law, giving the appellate court unlimited review. See Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 231, 898 P.2d 1131 (1995).
Thus, in the present appeal, the only issue is whether federal law permits a state court to consider a party’s receipt of VA disability benefits in allocating other property of the marriage to be paid in maintenance to a nonveteran spouse.
Rex cites Pierce for the proposition that a state court can neither directly nor indirectly allocate disability benefits to a nonveteran spouse. The circumstances in Pierce were entirely different from those in the present case. In Pierce the trial court awarded the nonveteran spouse 18/20 of one-half of the veteran spouse’s military benefits. 26 Kan. App. 2d at 237. Later, the military benefits were entirely converted to disability benefits, precluding benefits to the nonveteran spouse. The trial court denied the nonveteran spouse’s motion for modification of the property settlement agreement. On appeal, this court affirmed the trial court and noted that when the benefits become entirely exempt through their conversion to disability benefits, the nonveteran spouse was left with a fractional interest in nothing. 26 Kan. App. 2d at 240.
Here, however, the trial court did not, in either its original order or its final order, award an interest in disability benefits or military benefits capable of conversion to disability benefits to Ella. Rather, the trial court merely considered Rex having disability benefits in determining the economic position of the parties with respect to each other.
Should Pierce be interpreted as Rex suggests, the case represents a departure from similar case law in Kansas. In In re Marriage of Rodriguez, 266 Kan. 347, 352-53, 969 P.2d 880 (1998), the Kansas Supreme Court articulated the fundamental principle that Kansas law grants jurisdiction to the district courts to consider all property regardless of the method of its acquisition in deriving a just and equitable settlement between divorcing parties. The court also approved the holding of In re Marriage of Brane, 21 Kan. App. 2d 778, 908 P.2d 625 (1995), which emphasized that military retirement pay, then exempt from property division by McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981), superceded by statute 10 U.S.C. § 1401 et seq., could be considered by a state court in distributing the other property of the marriage. 21 Kan. App. 2d at 782-83.
In a different context, this court has concluded that a district court does not abuse its discretion in considering the receipt of social security benefits in the property division, even though the benefits were the exclusive property of one spouse due to a federal anti-assignment statute. See In re Marriage of Knipp, 15 Kan. App. 2d 494, Syl. ¶ 2, 809 P.2d 562, rev. denied 248 Kan. 995 (1991).
Based on the reasoning of these cases, plus the overarching authority granted to district courts by the Kansas Legislature to equitably divide property in a divorce, there appears to be no rational reason that the district court cannot consider the petitioners receipt of veteran’s benefits in calculating the need for support to be taken from the veteran’s other property.
Other states which have considered this question have reached a similar conclusion. See Clauson v. Clauson, 831 P.2d 1257, 1263 (Alaska 1992); Womack v. Womack, 307 Ark. 269, 270-71, 818 S.W.2d 958 (1991); In re Marriage of Franz, 831 P.2d 917, 919 (Colo. App. 1992); Allen v. Allen, 650 So. 2d 1019, 1020 (Fla. App. 2d Dist. 1994); Jones v. Jones, 7 Haw. App. 496, 501, 780 P.2d 581 (1989); Marriage of Strong, 300 Mont. 331,341,8 P.3d 763 (2000); Marriage of Kraft, 119 Wash. 2d 438, 451, 832 P.2d 871 (1992); and In re Marriage of Weberg, 158 Wis. 2d 540, 544-45, 463 N.W.2d 382 (1990).
In Clauson, the court drew a careful distinction between considering the economic consequences of one spouse’s receipt of militaiy disability benefits and offsetting the receipt of such benefits by giving the other spouse other property. That court stated:
“We are aware of tbe risk that our holding today might lead trial courts to simply shift an amount of property equivalent to the waived retirement pay from the military spouse’s side of the ledger to the other spouse’s side. This is unacceptable. In arriving at an equitable distribution of marital assets, courts should only consider a party’s military disability benefits as they affect the financial circumstances of both parties. Disability benefits should not, either in form or substance, be treated as marital property subject to division upon the dissolution of marriage.” 831 P.2d at 1264.
The district court, in the present case, specifically noted that the petitioner and respondent had been involved in a long-term relationship, but due to the nature of the property awarded to the respondent, she would have fewer liquid assets than the petitioner. Taking into account the parties’ entire income, the court determined that the respondent needed support to provide regular income. Therefore, the court awarded the military disability benefits to the petitioner but required payment of spousal maintenance out of other assets.
In a long-term relationship such as the parties possessed here, where each contributed substantially to the relationship, a determination that the relative incomes of the parties upon dissolution of the marriage should be equal is clearly not an abuse of discretion. Further, nothing in federal law prohibits the court from considering the extent of income each spouse is receiving, including disability benefits, when determining an equitable distribution of the financial assets accumulated over the course of the marriage. The district court did not err in considering the petitioner’s disability benefits in calculating the amount the petitioner would be required to pay to the respondent for maintenance. .
As a parallel issue concerning the maintenance award, Rex questions the trial court’s method of ordering maintenance payments.
Ella was initially awarded maintenance for 121 months at the rate of $1,973.80 monthly until she attained the age of 65 and thereafter at the rate of $1,773.80 monthly. The maintenance payments began October 5, 1998.
Following the remand of the case, the trial court again concluded it was not prohibited from considering military disability benefits when contemplating spousal maintenance. The trial court ordered that the initial maintenance order would be in effect and that Rex must pay monthly maintenance retroactively from the date of the original order, minus credit for payments made. In reinstating the initial order, the trial court stated:
“If the reversal of the initial maintenance award would be construed to vacate the original award, Mr. Bahr would be entitled to 19 months of prospective credit. Conversely, Ms. Bahr would not receive monthly support for 19 months. Expressed in dollars, not reinstating the initial award would result in Ms. Bahr being denied $37,502.20, which this Court finds she should be entitled to under the facts and the law. If the award is not reinstated, the equitable balance struck by the Court would be upset and Ms. Bahr would be unjustly strained financially.”
Rex argues that the reversal of the trial court’s initial maintenance order makes that order void and that all payments made should be returned to him. In other words, Rex opines that Ella is not entitled to any maintenance for the period prior to January 24, 2001, the date of the trial court’s final maintenance order.
It is textbook law that when an appellate court determines that some part of the trial court’s judgment was erroneous and orders reversal, the portion of the appellate court opinion which conflicts with the reasoning of the trial court stands in place of the judgment. When a trial court enters the same order as it had prior to appeal, the order is not a reinstatement but a new order effective as of the date ordered. 5 Am. Jur. 2d Appellate Review, § 784.
Here, however, this court in the first appeal did not determine that the trial court’s consideration of the disability benefits when contemplating maintenance was erroneous. Neither did this court’s opinion conflict with the trial court’s reasoning. The appellate opinion merely directed the trial court to consider the effect of the Act, Mansell, and Fierce on the maintenance award. The trial court complied with the mandate by considering the authority it was ordered to review and reaffirmed its previous order.
Thus, under the special circumstances present here, we do not consider the trial court’s final order to be an award of maintenance retroactively and, thus, not future support authorized by K.S.A. 1997 Supp. 60-1610(b)(2). See In re Marriage of Brown, 247 Kan. 152, 166-67, 795 P.2d 375 (1990) (construing the term “future support” literally, finding a district court is not authorized to award support payments retroactively).
Finally, other extraneous issues raised by Rex are not properly before this court as they are outside the purview of the mandate of this court in the first appeal.
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Green, J.:
Plaintiff Rory W. Gertsch appeals from a summary judgment in favor of Central Electropohshing Company (Celco) in Gertsch’s retaliatory discharge claim. On appeal, Gertsch contends .that the trial court inappropriately granted summary judgment because genuine issues of material fact remained. We agree and reverse and remand.
While employed at Celco, Gertsch suffered a work injury on February 11, 1997, when he rushed into a building to search for victims of a toxic chemical reaction. The chemical reaction occurred when other employees dipped the wrong metals into a vat of acid. Gertsch was not wearing a safety mask and suffered a severe injury when he inhaled toxic fumes.
Gertsch was in and out of the hospital from the date of his injury until February 15, 1997. During that time, the evidence indicates that Gertsch’s treating physician mailed an off-work slip and spoke to Celco officials concerning Gertsch’s medical treatment. The slip, dated Tuesday, February 12, stated Gertsch should not work for at least another 72 hours. On the following Monday and Tuesday, Gertsch had various medical appointments and was not released to return to work.
On Wednesday morning, February 19, 1997, Gertsch called his supervisor at Celco and told him he was going to be off work until the doctor released him. The supervisor requested a meeting with Gertsch that same day, and when they met, the supervisor handed Gertsch a termination notice. The notice read: “[You] did not report in for 2 consecutive mornings.”
The same day, Gertsch discussed his termination with the president and vice president of Celco. Gertsch recorded that meeting on tape. A transcript of the tape was submitted as part of Gertsch’s pleadings. The transcript notes several gaps and inaudibles. However, the transcript showed the parties discussed the termination decision, that Gertsch had contacted an attorney, and the effects Gertsch’s actions would have had on Celco’s workers compensation insurance premiums. Gertsch states in his affidavit that during this meeting, the officers of Celco told him he was fired for contacting an attorney and because their workers compensation insurance carrier told them they had to fire him since he had contacted a lawyer. They also stated he was fired because he did not call in every day to inform them he had not been released to work.
On Tuesday, February 25,1997, Gertsch returned to tire doctor for a follow-up appointment. The doctor issued a work status note indicating that he was releasing Gertsch from limited to full-time work and had counseled him on lung irritants.
At the summary judgment hearing, the trial court reasoned that the facts concerning the retaliatory discharge claim were controverted.
“In other words, was he discharged for absenteeism? Was he discharged because he exercised his rights? Are there other reasons not stated that justify his discharge?
“That is clearly controverted and if ... I don’t dismiss this case because I don’t find Rowland and Griffin persuasive, we’re going to trial.”
The trial court further reasoned that Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819, rev. denied 243 Kan. 780 (1988), and Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 927 P.2d 958 (1996), rev. denied 261 Kan. 1084 (1997), imposed a threshold requirement to a retaliatory discharge claim. The trial court stated:
“[T]he fact of the matter is, he can’t maintain a retaliatory discharge cause of action if he can’t go back to work. And I believe that is a prerequisite and a precondition to maintaining the cause of action under Kansas case law. The fact that he can’t meet [that condition] requires me to dismiss this lawsuit.”
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 2000 Supp. 60-256(c). Our standard of review is de novo. Thidsorn v. Excel Corporation, 27 Kan. App. 2d 735, 736, 8 P.3d 49, rev. denied 270 Kan. 904 (2000).
The trial court based its ruling on facts it considered undisputed:
(1) Gertsch was an employee of Celco and was injured on the job;
(2) he filed a workers compensation claim; (3) he was terminated a few days after his injury, and (4) he was unable to return to work. Gertsch contends that Gñffin and Rowland do not apply because in those cases there was no evidence of retaliatory discharge and the discharge was motivated by the employer’s inability or unwillingness to accommodate the employee.
Gertsch further contends that the court failed to consider evidence that Celco terminated Gertsch in retaliation for being absent due to work injury. He relies on Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988) (public policy prohibits an employer from firing an employee for being absent or failing to call in an anticipated absence as a result of a work-related injury); and Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 787 P.2d 1204, rev. denied 246 Kan. 1204 (1990) (the law prohibits the termination of an employee for being absent because of a work-related injury).
On the other hand, Celco contends that the trial court correctly determined as a matter of law that a “defendant cannot be guilty of retaliatory discharge . . . when the uncontroverted evidence shows that plaintiff could not continue or return to his former job as a result of his injury.” For this contention, Celco relies on Rowland, Griffin, and Thidsom. Celco contends Griffin controls.
Because the trial court interpreted Griffin to impose a threshold requirement to maintaining a claim of retaliatory discharge, we must first determine if Griffin controls the outcome of this case.
Griffin posed the question “whether Kansas public policy, as derived from the Workers Compensation Act, requires employers to attempt to find alternative employment and/or modify job functions to accommodate workers injured on the job before terminating them.” (Emphasis added.) 23 Kan. App. 2d at 147. In short, the court concluded an employer cannot be sued for retaliatory discharge simply because it failed to consider another position or to modify a job to accommodate an injured employee.
One result of Griffin was that it construed Rowland. In Rowland, the plaintiff sustained a work injury which prevented him from returning to the position he held at the time of the injury. The employer did not have any light duty jobs available at the time, and the employee remained off work. Under a company policy of terminating all employees who were absent for 6 months for any reason, the employer gave plaintiff notice that his 6 months were almost up and that he needed to return to his old job. When the employee did not return, he was fired.
Griffin construed the ruling in Rowland to state:
“[T]he public policy creating the tort of retaliatory discharge does not require employers tcj consider or find alternative employment for an injured employee who is unable to return to his or her former position. While the Workers Compensation Act is designed to encourage employers to make such accommodations, an employer cannot be sued for retaliatory discharge simply because it failed to consider another position or to modify a job to accommodate an injured employee.” (Emphasis added). 23 Kan. App. 2d at 148-49.
Gertsch’s case is distinguishable from Griffin. Unlike Griffin, Gertsch did not sue Celco because it failed to find him another job or accommodate him but because he was fired in retaliation for pursuing a workers compensation claim.
Furthermore, although Thidsom upheld summary judgment for the employer based on Griffin, the Thidsom court stated: “Griffin is not applicable where evidence of retaliatory motive is also presented.” 27 Kan. App. 2d at 737. Here, Gertsch presented evidence of a retaliatory motive. The trial court agreed that Gertsch presented evidence of close temporal proximity to his discharge and the protected activity. This is highly persuasive evidence of retaliation. See Rebarchek v. Farmers Co-op Elevator & Mercantile Ass’n, 28 Kan. App. 2d 104, 110-11, 13 P.3d 17 (2000) (close temporal proximity between filing of claim and discharge is persuasive).
The Thidsom court also cited Sanjuan v. IBP, Inc., 90 F. Supp. 2d 1208 (D. Kan. 2000), in its decision. Rejecting an employer’s notion that Griffin required an employee, as part of a retaliation claim, to prove he or she could return to his or her former position at the time of the alleged retaliatory discharge, the Sanjuan court stated:
“It would be anomalous for this court to hold an employer may not fire an employee in retaliation for filing a workers’ compensation claim, and then to hold an employer can fire an employee for inability to return to his former job which is due to injuries that are the basis for the workers’ compensation claim.
“This court does not believe that the Kansas Court of Appeals intended for the statement in Griffin to be used as a rubber stamp, allowing courts to summarily dismiss all retaliation claims in which the employee was unable to perform his job within medical restrictions on the day he was fired.” 90 F. Supp. 2d at 1212-13.
The Sanjuan court further determined that some cases which rely on Griffin to summarily dismiss retaliation claims are distinguishable because the employees were fired only after a permanent injury was diagnosed. 90 F. Supp. 2d at 1213. Here that was not the case. Gertsch was fired well before the full extent of his injuries were known.
Although the public policy exception that created the tort of retaliatory discharge for terminating an injured employee for filing a workers compensation claim does not apply to an injured employee who is unable to return to his or her former job after an injury, the requirement that an injured employee be able to return to his or her former position will not preclude an injured employee’s claim for retaliatory discharge when the injured employee can show a retaliatory motive on the part of the employer before the employer had ample evidence that the injured employee would be unable to perform his or her former job.
Finally, by allowing Gertsch to pursue his retaliatory discharge claim in addition to his workers compensation claim, we realize that a possibility of “double recovery” exists. Nevertheless, we believe that it is contrary to the public policy of Kansas for an employer to intentionally terminate an injured employee for filing a workers compensation claim before adequate evidence exists that the injured employee will be unable to perform his or her former job. If evidence later develops that the injured employee cannot return to his or her former job, this evidence could be relevant on the issue of damages.
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Knudson, J.:
Defendant Robert R. Gunn was convicted by a jury of manufacturing methamphetamine, possession of methamphetamine, and possession of drug paraphernalia. After conviction, he was sentenced to 54 months on the charge of manufacturing methamphetamine and 11 months on each of the other two charges. The sentences were ordered to run concurrently. This is a direct appeal from defendant’s convictions. On appeal, defendant challenges the sufficiency of evidence to support the juiy’s verdicts, contends the trial court abused its discretion in hmiting cross-examination, and claims prosecutorial misconduct during closing argument. We affirm.
Defendant’s troubles began on Christmas day of 1998. On that date, defendant and Donna Burris went into a Coastal Mart in Great Bend to buy some starter fluid. The store cashier recognized defendant but did not know Donna Burris. Defendant, after some inquiries, purchased six cans of starter fluid, Burris picked out some food, and defendant paid for all of the items.
There had been publicity in Barton County in recent months about the number of methamphetamine labs in the area. The clerks in the various stores had been asked to watch for persons buying large quantities of certain materials that might be used in the production of methamphetamine. The store cashier knew the ether in starter fluid could be used in the manufacture of methamphetamine. Later, when two police officers came into the store, the clerk told the officers about the purchases of the starter fluid by defendant.
The two officers continued on patrol in Great Bend. They knew that the ether in starter fluid was often used as a component of homemade methamphetamine, and they were looking for defendant and Burris. As they passed a Days Inn motel, they saw an unattended automobile with the trank lid standing open parked in front of a room. Apparently, they were concerned a motel guest may have inadvertently failed to close the trank on their car leaving the vehicle as an inviting target for thieves. The officers checked with the motel operator and were told it was the defendant who had been driving the car and he and another person had just checked into the motel.
The officers advised their superiors they suspected mefhamphetamine was being manufactured at the motel. They then made their way towards defendant’s room and, as they approached it, saw that a window was open and detected a strong odor of anhydrous ammonia and ether coming from the room.
The officers then observed defendant come out of the room and walk to his vehicle. He left the door open, and through the open door they could see a sheet covering a door leading to the hallway and a towel along the bottom of the door. The odor coming from the room was overwhelming, and one of the officers had trouble breathing because of the odor.
After a time, Burris also exited the room. The police officers then contacted both defendant and Burris, who gave various explanations of what they were doing in the room and about the smell coming from the room. Defendant told the police that he and Burris had only stopped to fix their automobile. In the meantime, a search warrant had been obtained and the room was thoroughly searched.
The search yielded a number of items which fall under the description of drag paraphernalia. Among other things, there was a 64-ounce bottle containing liquid, which was still smoking when removed from a sink. This bottle was analyzed by the KBI laboratory and was found to contain anhydrous ammonia and methamphetamine. The search also revealed other components used in the manufacture of methamphetamine. After the search, defendant and Burris were taken into custody.
At the trial, a KBI forensic scientist testified that the “finished product” of methamphetamine was found in the room. The State introduced other evidence about the manufacture of methamphetamine, which explained that the manufacturing process could begin in one location and be finished in another. In terms of time, the testimony indicated it took between 20 and 30 minutes to begin producing methamphetamine and 30 minutes to 2 hours to obtain the finished product.
Defendant was convicted as charged. Burris was also charged, tried in a separate trial, and convicted.
MANUFACTURING METHAMPHETAMINE FOR INDIVIDUAL USE
Defendant argues the manufacture of methamphetamine does not include the manufacture of that substance for one’s own personal use. He contends that the State was required to prove beyond a reasonable doubt that he was not manufacturing the methamphetamine for his own personal use. At trial, no evidence was introduced to indicate the methamphetamine seized from defendant’s motel room was not manufactured for defendant’s own personal use. Defendant presents as an issue whether manufacturing for one’s personal use only is an element of the offense proscribed under K.S.A. 1998 Supp. 65-4159(a).
The issue raised is one of statutory interpretation which is a question of law subject to an unlimited standard of review by this court. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 1998 Supp. 65-4159(a) states: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.”
K.S.A. 1998 Supp. 65-4101(n) provides:
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either direcdy orindirecdy by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for the individual’s oivn use or the preparation, compounding, packaging or labeling of a controlled substance: (1) By a practitioner or the practitioner’s agent pursuant to a lawful order of a practitioner as an incident to the practitioner’s administering or dispensing of a controlled substance in the course of the practitioner’s professional practice . . . (Emphasis added.)
We note that in 1999, the legislature amended 65-4101(n) by adding the word “lawful” to the statute; the statute then read “by an individual for the individual’s own lawful use.” (Emphasis added.) See L. 1999, ch. 170, § 3. We, of course, are concerned with the 1998 version of the statute, but defendant contends the 1999 amendment was substantive, rather than a clarification of existing law.
K.S.A. 1998 Supp. 65-4101(n) is part of the Kansas Uniform Controlled Substances Act and does define the manufacturing of a controlled substance. However, we do not believe the exceptions contained within the statute can be considered negative elements of the criminal offense of manufacturing under K.S.A. 1998 Supp. 65-4159(a).
In State v. White, 213 Kan. 276, 515 P.2d 1081 (1973), the court considered a similar issue. The defendant was charged and convicted for delivering a drug, secobarbital, contrary to K.S.A. 1971 Supp. 62-2602(1). On appeal, defendant contended the trial court erred in overruling her motion for discharge because the State failed to establish a prima facie case; that is, it failed to negate the fact that she was authorized to deliver drugs. K.S.A. 1971 Supp. 65-2602(1) made unlawful the delivery of drugs unless “delivered by a practitioner in good faith and in the course of his profession practice only.”
Justice Schroeder rejected defendant’s claim, stating:
“The general rule has always been in Kansas that the accused has the burden of introducing evidence as a matter of defense that he is-within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense. (State v. Braun, 209 Kan. 181, 495 P.2d 1000 [1972], and State v. Miller, 127 Kan. 487, 274 Pac. 245 [1929].) Accordingly, the prosecution has no duty to prove on its case in chief that the accused is not within the exception. This is a mere rule of procedure and does not relieve the state of its burden of proving guilt. (See, State v. Braun, supra and cases cited therein.)” 213 Kan. at 280.
Based upon the holding in White, we believe the pivotal question is whether the exceptions to the definition of manufacturing in 65- 4101(n) can be said to be an integral part of the description of manufacturing in the criminal statute 65-4159(a).
Another panel of this court has considered the interplay between 65-4101(n) and 65-4l59(a). In State v. Bowen, 27 Kan. App. 2d 122, 132, 999 P.2d 286 (2000), the defendant requested the jury be given the statutory definition of manufacturing, including the “own use” exception. The Bowen panel concluded:
“[K.S.A. 1998 Supp. 65-4101(n)] appears to apply to legitimate commercial and research situations. The statute under which Bowen was charged, K.S.A. 1998 Supp. 65-4159(a), refers to the unlawful manufacture of the drug, not those situations involved in 65-4101(n). K.S.A. 1998 Supp. 65-4159(a) does not contain such an exception and does not refer to 65-4101. We believe the trial court was correct in its denial of the requested instruction.” 27 Kan. App. 2d at 132.
Because the Bowen panel granted a new trial to the defendant on other grounds, we recognize its conclusion to be obiter dictum and in truth we have difficulty concluding 65-4101(n) does not apply to 65-4159(a).
We conclude the reasoning in White is applicable and dispositive of the issue before us. In the present appeal, there was no evidence whatsoever that would have factually brought defendant within the “personal use” exception of 65~4101(n). Thus, the question is whether the State should have been required to negate the personal use exception to establish a prima facie case of manufacturing methamphetamine. We conclude the answer is “no.” Under White, a defendant has the burden of presenting evidence that would bring him or her within an exception to the act proscribed within the criminal statute, unless the exception is a part of the description of the offense. 213 Kan. 276, Syl. ¶ 3. Because the exception is not part of the offense under 65-4159(a), defendant’s claim has no merit.
SUFFICIENCY OF THE EVIDENCE
Manufacturing of Methamphetamine
Gunn argues even if the “personal use” exception is not an element of the crime, there is insufficient evidence upon which the jury could have convicted him of manufacturing methamphetamine. We do not agree.
The standard of review on this issue is whether, after viewing all the evidence, viewed' r the light most favorable to the prosecution, this court is convinced a rational factfinder could find defendant guilty beyond a reasonable doubt. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Convictions may be sustained by circumstantial evidence. State v. Clemons, 251 Kan. 473, 488, 836 P.2d 1147 (1992).
The evidence established numerous components of a methamphetamine laboratory both in the main room and the bathroom of defendant’s motel room. There was an overwhelming odor of anhydrous ammonia in the room. Defendant played an instrumental role in the purchase of the starter fluid earlier in the morning. We conclude there was sufficient evidence on which the jury could have found defendant guilty of manufacturing methamphetamine.
Possession of Methamphetamine
Defendant also suggests there was not sufficient evidence to find him guilty of possession of methamphetamine. We do not agree.
Defendant’s argument is based on the fact that he was in nonexclusive possession of a motel room and that it was not shown that he had knowledge of the methamphetamine or sufficient control over the substance to sustain a conviction for possession. It is true that the State must show that defendant had some control over the substance and had the knowledge of and intent to have such control. State v. Woods, 214 Kan. 739, 744, 522 P.2d 967 (1974). However, possession and intent can be shown by circumstantial evidence. State v. Bullocks, 2 Kan. App. 2d 48, 49, 574 P.2d 243, rev. denied 225 Kan. 846 (1978). We have reviewed the record and conclude there was ample evidence on which the juiy could determine that defendant possessed the methamphetamine either directly or constructively. He was present in the motel room, the botde was found in plain view, and there was testimony that defendant had been involved in prior drug activity. We conclude that the inference of possession could be made by the jury beyond a reasonable doubt based on the evidence presented in the instant matter.
Possession of Paraphernalia
Defendant next argues there was not sufficient evidence to find him guilty of possession of drug paraphernalia. We do not agree.
The evidence indicates that the police officers observed defendant leaving the room and that the paraphernalia was present throughout the room and in plain view. Defendant admitted to trying to contain the odor and was involved in a purchase of six cans of starter fluid. There were also items found in die trunk of the vehicle defendant had been driving. We hold there was sufficient evidence from which the juiy could have found that defendant was in possession of drug paraphernalia beyond a reasonable doubt.
LIMITATIONS ON CROSS-EXAMINATION
Defendant next argues the trial court erred in refusing to allow him to ask questions regarding previous activities of and incidents relating to Donna Burris, his codefendant.
The admission of evidence lies within the sound discretion of the trial court, and that discretion will not be disturbed absent a showing of an abuse of that discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). We see no evidence of abuse of discretion in this case.
Defendant argues that his attorney attempted to ask a witness on cross-examination about the possibility of methamphetamine having been found during a body cavity search of his codefendant. This line of questioning had already been ruled to be beyond the scope of direct examination, and the State’s objection to the question was sustained.
The second instance occurred when defendant’s attorney asked one of the witnesses whether he knew if Burris was “into” prostitution. Once again, the State objected to the question, and the objection was sustained.
Defendant’s argument appears to be that his defense was that he was in the room with Burris because she was a prostitute and that Burris had methamphetamine on her person. He suggests this defense was unconstitutionally impaired by the trial court’s actions. One of the principal problems with defendant’s argument is that he made no proffer pursuant to K.S.A. 60-405 regarding the content of the evidence he sought to introduce by cross-examining the witness and what that evidence was intended to establish. K.S.A. 60-405 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
The failure of defendant to make a proper proffer is fatal to his argument.
In addition, we agree the question regarding the presence of drugs in Burris’ body cavities was outside of the scope of direct examination, and the objection was properly sustained. Defendant’s attorney would have been able to obtain this testimony by simply placing the witness on the witness stand as part of the defense in this case. He did not do so.
PROSECUTORIAL MISCONDUCT
Defendant argues the prosecutor committed reversible error during closing arguments.
The record shows that defendant made no contemporaneous objection to the arguments by the prosecutor. Generally, reversible error cannot be predicated upon prosecutorial misconduct during closing argument if there was no contemporaneous objection. Lumley, 266 Kan. at 964. We may only consider the issue if we determine that the prosecutor’s remarks were outside the considerable latitude given a prosecutor in discussing the evidence and that they were so gross and flagrant as to prejudice the jury against defendant and deny him a fair trial. State v. Sperry, 267 Kan. 287, 308-09, 978 P.2d 933 (1999).
Defendant’s argument is based on the fact the prosecutor in closing argument referred to the fact that his codefendant, Burris, had also been convicted of the same crimes. We have examined the record and find evidence of Burris’ convictions had been admitted through the testimony of one of the State’s witnesses on two different occasions during cross-examination by defense counsel. The witnesses were asked if the evidence being presented at defendant’s trial was the same evidence used to convict Burris. They both replied that it was basically the same evidence.
The facts upon which defendant bases his prosecutorial misconduct argument were placed in the record and before the jury by defendant’s own attorney. We suggest this is tantamount to inviting the prosecutor to discuss that evidence on final argument.
During the closing argument, the prosecutor told the jury on a number of occasions that Burris had already been found guilty of these crimes; that she was a nasty person, a bad person, but that she was convicted of the very same things that defendant was on trial for. Perhaps one of the more egregious comments was “It’s time for person number two to go down.”
We believe the prosecutor’s comments are very close to the line and may very well have been improper. However, the comments were based on evidence introduced into the case by defendant and were not objected to.
Under the circumstances, we do not consider the comments to have been so gross and flagrant as to prejudice the jury against defendant and deny him a fair trial. The remarks are also subject to a harmless error analysis. State v. Cravatt, 267 Kan. 314, 332, 979 P.2d 679 (1999). We conclude if the prosecutor’s comments were erroneous, they were harmless error at best and would have had little, if any, likelihood of changing the result of the trial.
We conclude that any errors committed in defendant’s trial, including those of prosecutorial misconduct, did not substantially prejudice defendant and did not deny him a fair trial. Defendant’s arguments to the contrary are without merit.
Affirmed.
Lewis, J.:
For the reasons stated, I disagree with the majority opinion insofar as it holds that the defendant had the burden to introduce evidence to show that he did not manufacture methamphetamine for his own individual use. I therefore respectfully dissent from that portion of the majority opinion. In all other respects, I agree with the majority opinion.
I conclude that at all times relevant in this decision, an individual could not have been found guilty of “manufacturing” methamphetamine without a showing that he or she was compounding the drug for reasons other than his or her “own personal use.” The defendant in this case was convicted of manufacturing methamphetamine in violation of K.S.A. 1998 Supp. 65-4159(a). The term “manufacturing” is a term of art that has been carefully defined by the legislature. I believe that the State was required to prove, as an element of the crime, that the defendant manufactured methamphetamine within the meaning of K.S.A. 1998 Supp. 65-4101(n). Under our criminal justice system, activities are only criminal if the legislature has said that such activity is a crime. At the time of the alleged occurrence, methamphetamine was not being manufactured, in the criminal sense, if it was being compounded for an individual’s own personal use. To put it a different way, at the time the events in this case occurred, making methamphetamine for one’s own personal use was not the criminal manufacture of the drug—it was a perfectly legal endeavor. For that reason, one element of the crime in question is proof that the drug was manufactured within the meaning of the statute. The majority concludes that the State need not prove that a defendant did not manufacture methamphetamine for his or her own personal use. I disagree. In my opinion, the majority decision reheves the State from its constitutional burden of proving all of the elements of the crime with which a defendant is charged. The majority decision violates the due process rights of the defendant guaranteed to him by the Fourteenth Amendment to the United States Constitution.
I believe the majority opinion is a bit timid in stating what is or is not manufacturing methamphetamine in this state at the time of the alleged criminal occurrence. It cites State v. Bowen, 27 Kan. App. 2d 122, 132, 999 P.2d 286 (2000), where a panel of this court concluded that K.S.A. 1998 Supp. 65-4101(n) did not apply to K.S.A. 1998 Supp. 65-4159(a). I do not agree with this conclusion of Bowen, and it is difficult to determine what the majority concludes on that issue. The majority is willing to say that it has “difficulty concluding 65-4101(n) does not apply to 65-4l59(a).” I have no difficulty at all. In my judgment there is absolutely no question that 65-4101(n) applies to 65-4159(a). That application and the specific definition of manufacturing is the basis for my dissent.
Defendant was charged with a violation of K.S.A. 1998 Supp. 65-4l59(a), which read in part: “[I]t shall be unlawful for any person to manufacture any controlled substance or controlled analog.”
Apparently, we all agree that methamphetamine is a controlled substance as that term is used in 65-4159(a).
Defendant’s argument is based on the wording of K.S.A. 1998 Supp. 65-4101(n), which is in the definition section in the Kansas Uniform Controlled Substance Act, and provides:
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term, does not include the preparation or compounding of a controlled substance by an individual for the individual’s own use or the preparation, compounding, packaging or labeling of a controlled substance: (1) By a practitioner or the practitioner’s agent pursuant to a lawful order of a practitioner as an incident to the practitioner’s administering or dispensing of a controlled substance in the course of the practitioner’s professional practice; or
“(2) by a practitioner or by the practitioner’s authorized agent under such practitioner’s supervision for the purpose of or as an incident to research, teaching or chemical analysis or by a pharmacist or medical care facility as an incident to dispensing of a controlled substance.” (Emphasis added.)
Defendant specifically references the emphasized portion of the statute which defines the term manufacture. The statute goes on to say that the manufacture of a controlled substance shall also not include the preparation, compounding, packaging, or labeling of controlled substances by certain designated medical or pharmaceutical personnel. See K.S.A. 1998 Supp. 65-4101(n)(l) and (2).
The language emphasized simply says that making a controlled substance for one’s own use is not manufacturing that substance. It is a violation of K.S.A. 1998 Supp. 65-4159(a) to manufacture a controlled substance and, thus, the preparation or compounding of such a substance for one’s own personal use is not a crime.
In 1999, the legislature amended 65-4101(n) by adding the word “lawful” to the statute. At this time, the emphasized portion of the statute now reads “by an individual for the individual’s own lawful use” (emphasis added) instead of “the individual’s own use.” K.S.A. 2000 Supp. 65-4101(n). The statute in place at the time the crimes in this case were committed did not contain the word “lawful.”
In reaching my decision, I have utilized a number of the canons of statutory construction which have traditionally been used by the courts in interpreting statutes.
One of the more quoted statutory canons is that we must determine the intent of the legislature:
“A fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). When a statute is plain and unambiguous, appellate courts will neither speculate as to legislative intent nor read a statute so as to add something not readily found in it. State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Legislative intent may best be determined from the plain meaning of the words used in the statute in light of all the experience available to the law-making body. Hulme v. Woleslagel, 208 Kan. 385, 391, 493 P.2d 541 (1972). Our construction should neither add to that which is not readily found in the statute, nor read out what, as a matter of ordinary language, is in it. See Boatright v. Kansas Racing Com’n, 251 Kan. 240, Syl. ¶ 7, 834 P.2d 368 (1992).” Endorf v. Bohlender, 26 Kan. App. 2d 855, 861-62, 995 P.2d 896 (2000).
There are many cases setting forth this rule, but I believe the Endorf decision satisfactorily explains what the canon of construction is and how the courts are to use it.
In addition, there are have many cases which indicate that when the language of a statute is plain and unambiguous, we are to give effect to the intention of the legislature as shown by that language rather than to determine what the law should or should not be. See State v. Wilson, 267 Kan. 550, 559, 987 P.2d 1060 (1999); Link, Inc. v. City of Hays, 266 Kan. 648, 653-55, 972 P.2d 753 (1999); State v. Jimenez, 266 Kan. 59, 62, 966 P.2d 60 (1998). Indeed, before we can even undertake the task of construing and interpreting a statute, we must conclude the statute is ambiguous. If it is not ambiguous, we must take the language of the statute to mean what it says, and no construction is necessary. See State ex rel. Secretary of SRS v. Miller, 24 Kan. App. 2d 822, Syl. ¶ 2, 953 P.2d 245 (1998).
This is a criminal case, and criminal statutes are to be construed strictly against the State. Indeed, we are instructed that we may not give a different meaning to a word in a criminal statute than the meaning that word usually possesses. See State v. Clint L., 262 Kan. 174, 175, 936 P.2d 235 (1997); State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993); State v. Frazier, 248 Kan. 963, 971, 811 P.2d 1240 (1991). The results of this particular canon of construction are that we must construe the language in this statute strictly against the State and in favor of the interpretation argued for by the defendant. It further reinforces the rule that we must enforce the statute as written and cannot construe or interpret an unambiguous statute by giving different meanings to words than the meanings those words normally possess.
• We are told through our canons of construction that when the legislature revises an existing law, it means something. In Clint L., the court stated: “ When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.’ Hughes v. Inland Container Corp., 247 Kan. at 414.” 262 Kan. at 178.
In State v. Beard, 197 Kan. 275, 277, 416 P.2d 783 (1966), the court stated:
“We believe that, now, no person may be prosecuted under K.S.A. 21-554 for making, issuing or delivering an insufficient or no-fund check, where either the check is postdated or the payee has information that the maker has insufficient funds on deposit in the bank to meet its payment. As we have heretofore indicated, this represents a substantial departure from the law as it was construed in Avery. We must presume the legislature intended to effect such a change in the existing law (State, ex rel. v. Richardson, 174 Kan. 382, 386, 256 P.2d 135; Horyna v. Board of County Commissioners, 194 Kan. 445, 448, 399 P.2d 844) and that it was fully aware of the impact of the change which was made.” (Emphasis added.)
The legislature amended the statute in question in 1999 to restrict the legal production of methamphetamine to an individual’s own lawful use. L. 1999, ch. 170, § 3. We must presume this effected a substantial change in the law and that the absence of the word “lawful” in the previous form of the statute indicates that the manufacture of methamphetamine for the individual’s own use was not illegal on December 25, 1998. That is, it was not illegal to compound a controlled substance for one’s own personal use; that use did not have to be lawful under our various cannons of construction. I can only conclude that in 1998, an individual was not committing a crime if that individual produced methamphetamine for his or her “own use.”
The language used is plain and unambiguous. The legislature by enacting subsection (n) of 65-4101 in effect made it lawful for an individual to prepare or compound a controlled substance for the individual’s own use. By the use of the word “or” in the statute, it also made it lawful for a practitioner of the medical arts or pharmaceutical arts to prepare, compound, package, or label a controlled substance without that being a crime. In neither case does the compounding of the substance constitute manufacturing under the statute.
The majority opinion relies on the decision of State v. White, 213 Kan. 276, 515 P.2d 1081 (1973), in concluding that the defendant would be required to prove under the circumstances shown that he was not manufacturing the methamphetamine for his individual use. The only way the majority opinion can be accurate in this regard is if proving that a controlled substance was manufactured by the defendant is not an element of the crime.
In White, the defendant was charged and convicted for delivering a drug contrary to K.S.A. 1971 Supp. 62-2602(1). On appeal, the defendant argued that the evidence did not show that she was not authorized to deliver the drugs and, as a result, it was insufficient to convict her of the crime. The Supreme Court disagreed with the defendant and held that a defendant had the burden of proving that he or she was within an exception or exemption in the statute creating the offense “where such exception or exemption is not part of the description of the offense.” (Emphasis added.) 213 Kan. at 280.
I do not agree that White is controlling in this case for a number of reasons.
To begin with, a significant factor in White was a statute that no longer exists. The court in White indicated that it was relying on its decision in State v. Braun, 209 Kan. 181, 189, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972). In Braun, the Supreme Court established the burden of proof rule concerning exceptions which was followed by the court in White. The holding in Braun regarding the duty of the State to negate exceptions was based on K.S.A. 65-2517 (Corrick), which read as follows:
“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act, it shall not be necessary to negative [sic] any exception, excuse, proviso, or exemption contained in this act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.”
This statute was repealed in 1972, but in the same year was revised and enacted as K.S.A. 65-4136(a) (Weeks) under the Uniform Controlled Substances Act. See L. 1972, ch. 234, § § 36, 41.
In 1988, K.S.A. 65-4136 was restricted by the legislature to apply only in cases seeking forfeiture under K.S.A. 65-4135. L. 1988, ch. 258, § 2. In 1994, K.S.A. 65-4136 was simply repealed. L. 1994, ch. 239, § 28. The statutes relating to the forfeiture of property have been transferred to chapter 60 and may now be found in the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq.
I believe the validity of White has become questionable by the repeal of the statute upon which its premise rested. I find it to be noteworthy that the legislature saw fit to repeal a statutory rule concerning the burden of proof in drug cases which was consistent with the approach taken by the majority opinion. It could be argued that having taken this action, the legislature did not intend to continue to place the burden of proving exceptions upon the defendant.
I also note that those jurisdictions which have adopted approaches similar to tire majority opinion are jurisdictions which have statutory enactments which cover the burden of proof issue. See Kelley v. State, 448 So. 2d 500 (Ala. 1984); State v. Huntley, 473 A.2d 859 (Maine 1984); State v. Wyatt, 6 Neb. App. 586, 575 N.W. 2d 411 (1998); State v. Stearns, 119 Wash. 2d 247, 830 P.2d 355 (1992). In each of these cases, the state had adopted a burden of proof statute similar to the one the Kansas Legislature has repealed.
I do not believe that White is relevant to the issues in this case. In White, the defendant was charged with and convicted of delivery of secobarbital. In that case, it was unlawful, by statute, to deliver secobarbital. There was no definition of the term “delivery” and nothing which indicated that what the defendant did was not delivery. The prohibited conduct in White was delivering the drugs and, under the statute, delivery was a crime unless it was authorized by certain individuals. The fact that it may have been authorized by certain individuals did not mean the drug was not delivered; it simply meant the delivery was not criminal. The defendant in White did deliver the drugs, and that action was criminal unless one of the exceptions applied. In White, delivery was an element of the crime which the State was required to prove.
In the instant matter, the crime is to manufacture methamphetamine. An essential element of that crime is the manufacturing of the drug as that term is defined by the statute. The State must prove that the defendant manufactured the drug in question as an element of the crime. The term manufacture is a term of art, very clearly and specifically defined by statute. Under the express terms of the applicable statutes, the compounding of methamphetamine for one’s own personal use did not constitute the manufacturing of the drug. Under K.S.A. 1998 Supp. 65-4101(n), one could only manufacture an illegal substance if one compounds the substance for reasons other than individual use. The net result is that whether the defendant was manufacturing the drug depends upon his intent in compounding the drug. For that reason, I argue the State must prove that the defendant compounded the drug for uses other than his own individual use. If it does not prove that fact, it has not proven that he manufactured the drug as that term was defined by the statute. The State in this case offered absolutely no evidence to show why the defendant compounded the methamphetamine and, thus, in my opinion, the State failed to prove an element of the crime—that the defendant manufactured the substance as that term was used and defined by the statutes of this state.
In closing, I wish to state that I take no particular pleasure in being forced to argue that this defendant’s conviction should be reversed. It is perfectly obvious that he was involved in the compounding of methamphetamine in a motel room. The question is whether his conduct was criminal. We live in a society which is governed by the rules of law. We have no common-law crimes in Kansas, and we have no crimes which are defined by public opinion or surveys. In this state, an individual’s conduct, no matter how objectionable, obnoxious, or reprehensible it may be is not a crime unless the legislature says that such conduct is a crime. In this particular case, in my opinion, the legislature has stated in plain and unambiguous terms that one only manufactures methamphetamine when one compounds the substance for uses other than the individual’s own personal use. The State did not prove that the methamphetamine in this case was compounded by the defendant for other than his own personal use; as a result, I am forced to conclude the evidence was insufficient to convict him of this crime and his conviction should be reversed.
On all other issues, I agree with the majority opinion. | [
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Elliott, J.:
Union Pacific Land Resources Company (UP) appeals the trial court judgment that it did not own fee title to the mineral rights it leased to Jason Oil Company, et al. (Jason).
We reverse.
The material facts are undisputed, as the parties agree with the trial court’s findings of fact. In 1887, an order condemned a strip of land for a railroad right-of-way. A month later, an individual conveyed by warranty deed most of a quarter section of land to the Memphis & Denver Town Company (Town), by which Town owned all mineral rights in the land described. Several months later, Town conveyed by warranty deed a 500-foot wide strip of land to UP’s predecessor and later still, Town conveyed by warranty deed several Town lots to UP’s predecessor.
The land in question is contained within the City of Utica’s drilling unit, on which a producing oil well was drilled. UP’s predecessor leased the land to Jason, which completed the producing well.
In the present litigation, the trial court, in denying UP’s motion for summary judgment, ruled the preceding deeds conveyed only an easement and declared the prior leases void. As a result, the trial court ruled UP is not entitled to any royalties from the oil produced from the pooled lease.
The only issue on appeal—the construction of the deeds to UP’s predecessor—is one of law over which we have plenary review. See Gamblian v. City of Parsons, 261 Kan. 541, 546, 931 P.2d 1238 (1997).
Historically, a railroad could acquire an interest in property by eminent domain (which was partly done here), by purchase, or by voluntary grant. See K.S.A. 66-501. K.S.A. 66-501 Second clearly provides that when a railroad takes land by voluntary grant it is to be held for the purposes of the grant only (construction, maintenance of the railway). That statute also clearly provides a railroad company has the power to purchase and hold with power to convey, real estate. We take that language to clearly mandate that a railroad may purchase land in fee simple absolute (to hold with power to convey).
In the present case, the 1887 deed provided that for consideration, the grantor conveyed the described property to “Have and to Hold the Same Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining forever.” (Emphasis added.) Further, the grantor warranted it was “lawfully seized in [its] own right of an absolute and indefeasible estate.”
The 1888 deed provided that for consideration, the grantor conveyed the described property “to have and to hold the same together with all and singular tire tenements hereditaments and appurtenances thereunto belonging or in anywise appertaining forever.” (Emphasis added.) Further, the grantor warranted it was “lawfully seized in its own right of an absolute and indefeasible estate of inheritance in fee simple.”
While Kansas cases reach differing results, Nott v. Beightel, 155 Kan. 94, 122 P.2d 747 (1942), and Danielson v. Woestemeyer, 131 Kan. 796, 293 Pac. 507 (1930), hold a fee title is conveyed where the warranty deeds are void of any use limitations. In Nott, the warranty deed did not mention a limited use and did not contain a reversion clause. 155 Kan. at 95.
In Danielson, a single deed conveyed two strips of land to a railroad. One description specifically designated it for right-of-way and the court held it conveyed an easement only. The other land description contained no reference to its anticipated use. The court held the railroad acquired fee title to that strip with full power to convey. Danielson, 131 Kan. at 804.
In the present case, the 1887 deed does not contain a reversion clause, and the 1888 deed does not contain any expressed use restriction.
With respect to the 1887 deed, despite the small size of land conveyed, the lack of any express or implied use restriction requires us to conclude the deed conveyed fee title to UP’s predecessor. Accordingly, UP holds title to the mineral rights in that land.
For similar reasoning, the 1888 deed likewise conveyed fee title to UP’s predecessor. As a result, UP is entitled to royalties due from the oil and gas lease on those lands.
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Elliott, J.:
The Lovelesses sought bodily injury recovery from American Family Mutual Insurance Company (American Family) (their own automobile carrier) under the uninsured motorist provision of their policy and K.S.A. 40-284. The trial court granted American Family summary judgment, the Lovelesses appeal, and we affirm.
Appellants were involved in an automobile accident with Chad Johnson in Oklahoma. At the time of the accident, the Johnson vehicle was insured by Arkansas Farm Bureau and Chad was listed as an additional insured on their policy. Appellants received and rejected a settlement offer from Arkansas Farm Bureau under the Johnson policy.
Later, appellants sued Chad in Oklahoma but their attempts to locate and serve Chad with process were unsuccessful; the Oklahoma suit was dismissed and appellants then sued American Family in Kansas, alleging that since Chad’s whereabouts were unknown, they could recover under their uninsured coverage.
As part of its summary judgment motion, American Family attached a copy of the Arkansas Farm Bureau policy indicating Chad was insured under its policy at the time of the accident.
In granting American Family’s motion for summary judgment, the trial court denied coverage under American Family’s policy, ruling an insured, but unavailable, tortfeasor is not an uninsured motorist.
K.S.A. 40-284 requires uninsured motorist coverage for injuries suffered in an accident arising out of the ownership or use of a vehicle by an “uninsured owner or operator.” The statute does not cover a situation where the uninsured owner or operator owns an automobile liability policy. See Hilyard v. Estate of Clearwater, 240 Kan. 362, 369, 729 P.2d 1195 (1986). Following this reasoning, we hold the statute does not mandate coverage under the facts of the present case. Here, the alleged uninsured owner or operator does not own an insurance policy but is an additional insured driver under the policy as a family member.
The statute does not define “uninsured owner or operator,” and the specific issue raised by appellants is one of first impression in Kansas. Appellants argue that because they were unable to locate and serve Chad, he should be considered “uninsured.”
Appellants’ reliance on McDaniel v. State Farm, Mutual, 205 Va. 815, 139 S.E.2d 806 (Va. App. 1965), is misplaced. In McDaniel, the tortfeasor’s insurance company voided the tortfeasor’s policy and denied coverage. Here, the Johnson’s policy remained in force, and the adjuster for Johnson’s carrier attempted settlement with appellants under the Arkansas Farm Bureau policy.
There is some authority for uninsured motorist coverage where the incident involves a hit-and-run accident and the driver’s identity is unknown. See, e.g., Claire v. State Farm Mut. Auto. Ins. Co., 973 P.2d 686, 688 (Co. App. 1998). But a motorist is not “unknown” where only his or her whereabouts are unknown. Problems in effecting service on the known tortfeasor does not mean the tortfeasor is “unknown.” 973 P.2d at 688-89. “Where the offending party is insured but unavailable for service, the injured party cannot recover under his uninsured coverage with his insurance company.” Weinberg v. State Farm Mut. Auto. Ins. Co., 659 S.W.2d 236, 238 (Mo. App. 1983).
If the legislature had intended to bring insured but unavailable tortfeasors within the purview of K.S.A. 40-284, it could have carved out a separate exception as it did under K.S.A. 40-285 for tortfeasors insured by insolvent insurance companies.
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Green, J.:
Quality Developers, Inc. (Quality) appeals from the dismissal for lack of standing of its shareholder derivative action against Eldon Thorman and the Estate of Edwin T. Pyle (the Pyle Estate). Quality also appeals from the trial court’s order denying its motion to disqualify the law firm of Morrison & Hecker from the dual representation of two allegedly adverse parties. The Pyle Estate cross-appeals an order setting aside Quality’s voluntary dismissal of the estate based on the settlement the Pyle Estate entered into with Quality. We affirm in part, reverse in part, and remand for further proceedings.
Quality is a registered stockholder of Red Coach Inns, Ltd. (Red Coach), a corporation organized in 1973 by Thorman and Edwin T. Pyle (Pyle). Since formation of the corporation, Quality has owned one-half of the outstanding shares of Red Coach stock. Quality’s stock, in turn, is owned by Pyle’s four children. The remaining one-half of Red Coach stock is owned by Eileen Wright, Thorman’s daughter.
When the stock was issued, both Quality and Wright issued irrevocable proxies to Thorman and Pyle to vote their stock. Each year, Thorman was elected president and Pyle was elected vice-president, secretary, and treasurer of Red Coach. Almost every year, consent minutes were signed by the shareholders generally ratifying the actions of the officers.
After Pyle died in 1997, his children discovered records which they allege establish that Thorman and Pyle (1) misappropriated corporate assets without consideration; (2) seized corporate expansion opportunities for personal use; and (3) stripped Red Coach of its profits by charging rent for property they misappropriated from the corporation.
Two of the four shareholders of Quality sued Thorman and their father’s estate through a double derivative action, that is, a derivative action against Quality for not protecting corporate assets by pursuing Quality’s claims against Thorman and the Pyle Estate. Through the law firm of Morrison & Hecker, Thorman challenged the use of a double derivative action. The trial court dismissed the suit on procedural grounds.
After the double derivative action was dismissed, all of Quality’s shareholders agreed to pursue a single derivative action against Thorman and their father’s estate. The present case was filed by Quality as a shareholder of Red Coach, asserting misappropriation and breach of fiduciary duty claims. Quality alleged the total misappropriation was in excess of $7,500,000. In addition, Quality requested the appointment of a custodian for Red Coach.
Wright, as a shareholder of Red Coach, sought appointment of a custodian over the corporation. Wright was represented by Morrison & Hecker in that case. Wright’s custodianship case was joined with the derivative action. The trial court granted the requests for an appointment of a custodian for Red Coach.
Quality and the Pyle Estate moved to disqualify the law firm of Morrison & Hecker from the dual representation of Thorman and Wright due to Thorman’s and Wright’s alleged irreconcilable conflict of interest and because attorneys from the firm were supposedly necessary witnesses for Quality on the issue of beneficial ownership of stock. After an evidentiary hearing, the trial court denied the motions to disqualify.
During the current case, Thorman took the position that Quality and Wright are only nominal owners of the stock in Red Coach and that he (Thorman) and Pyle were the beneficial owners of the corporation. Thus, according to Thorman, Quality lacks standing to pursue any misappropriation or breach of fiduciary duty claims. The trial court agreed with Thorman and dismissed Quality’s claims for lack of standing.
Standing ■
The first issue on appeal is whether Quality has standing to bring this derivative action. Our standard of review is whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
When a shareholder believes that an officer or director has breached his or her fiduciary duty to the corporation or to its stockholders, the shareholder may file a derivative action under K.S.A. 60-223a or, in certain circumstances, the shareholder may bring an individual damage suit. Richards v. Bryan, 19 Kan. App. 2d 950, 961, 879 P.2d 638 (1994).
Quality filed this derivative action under K.S.A. 60-223a, which provides in pertinent part:
“In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the petition shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the state of Kansas which it would not otherwise have.”
K.S.A. 60-223a parallels Rule 23.1 of the Federal Rules of Civil Procedure, and authorities interpreting the federal rule are persuasive. See Newton v. Hornblower, Inc., 224 Kan. 506, 511, 582 P.2d 1136 (1978).
The trial court determined that Quality lacked standing to bring a derivative suit after finding that it was merely a nominal owner of Red Coach stock. The standing requirement in a derivative action was reiterated in Schupack v. Covelli, 498 F. Supp. 704, 705 (W.D. Pa. 1980):
“The requirement that one have a present possessory interest in the stock of a corporation in order to sue derivatively on its behalf is a basic fundamental of corporation law. [Citations omitted.] The rationale behind this standing requirement is quite simply the belief that only a party with an on-going proprietary interest in the corporation will adequately represent the corporation’s interests in a derivative action. [Citations omitted.] Moreover, this standing requirement is also implicit in the Federal Rules of Civil Procedure, which state that derivative actions may be ‘brought by one or more shareholders . . . .’ [Citation omitted.]”
On appeal, Thorman does not dispute that Red Coach stock is in the names of Quality and Wright, but instead argues that the stock was held for the benefit of Thorman and Pyle. The trial court resolved this issue by succinctly finding as follows:
“1. [Quality] is merely a nominal owner of [Red Coach] stock.
“2. Without beneficial ownership of [Red Coach] during the period of alleged wrong-doing, [Quality] lacks standing to bring the instant lawsuit and the Court lacks jurisdiction over the case.”
Notably, the trial court failed to cite any statutory or case law to support its holding.
We find that the trial court erred in dismissing Quality for lack of standing. K.S.A. 60-223a confers standing to bring a derivative action to an individual or corporation that was a shareholder at the time of the alleged wrongdoing. The statute does not place an added requirement that the shareholder be a beneficial owner of stock in the corporation. Such an interpretation would be contrary to our rules of statutory construction.
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
We refuse to read the term “shareholder” as used in K.S.A. 60-223a to mean a beneficial owner of a corporation. “ ‘The rule of strict construction means that ordinaiy words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.’ ” In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App. 2d 863, 868, 909 P.2d 673 (1995). The ordinary meaning of the term “shareholder” is the stockholder of record. 18A Am. Jur. 2d Corporations § 728 (“A stockholder or shareholder is the owner of one or more shares of stock in a corporation . . . .”); 19 Am. Jur. 2d Corporations § 2341 (“As a general rule, a person who holds legal title to shares in a corporation at the time of the transaction complained of, and at the time of the action, can bring a shareholders’ derivative action, even if the shares are held for the benefit of others.”). Because Quality and Wright were the stockholders of record at the time of the alleged wrongdoing, Quality had standing to bring this derivative action.
Furthermore, Quality’s standing to bring this suit was not affected by Thorman’s and Pyle’s possible status as beneficial owners of Red Coach. Even if Thorman and Pyle had beneficial ownership of the corporation, Quality nevertheless had standing to bring this derivative action because K.S.A. 60-223a confers standing to stockholders of a corporation, whether or not that ownership interest was merely nominal. Even if Quality was a mere nominal owner in Red Coach, as the trial court previously determined, it had standing to bring this action because it had an ongoing proprietary interest in the corporation.
A proprietary interest has been defined as “the interest of an owner of property together with all rights appurtenant thereto . . . .” Black’s Law Dictionary 1219 (6th ed. 1990). In Millar v. Mountcastle, 161 Ohio St. 409, 119 N.E.2d 626 (1954), the Ohio Supreme Court considered the meaning of ownership as represented by holding shares of stock. The court pointed out that by reason of ownership of a share of corporate stock, a shareholder becomes “the owner of intangible property may be said to be comprised of various relationships which are determined by the terms of the stock certificate, the articles and regulations of the corporation and the statutes and common law of the state of incorporation.” 161 Ohio St. at 418. The Millar court further noted that the ownership comprising the relationship might include “one or more” of the following:
“(1) The right to vote.
“(2) The right to participate in dividends.
“(3) The right to participate in any distribution of net assets upon a reduction of capital or upon dissolution or liquidation.
“(4) The right to inspect corporate books.
“(5) The right to subscribe for any additional share offered by the corporation.
“(6) The right to bring a shareholder’s derivative suit.
“(7) The duty to pay the corporation the amount of consideration for which shares were authorized to be issued.” 161 Ohio St. at 418-19.
Clearly, Quality had a proprietary interest in the corporation because it had the right to vote shares of stock. Although Quality gave an irrevocable proxy to Thorman and Pyle to vote its shares of stock in May 1974, the corporation’s bylaws stated that “in no case shall [the proxy] exceed seven (7) years from the date of its execution.” The record indicates that this proxy would have expired in May 1981. In addition, Quality had the right to inspect the corporate records. We determine that a “proprietary interest” conferred by ownership of stock may consist of one or more of the previously mentioned items listed by the Millar court. As a result, we find that the trial court erred in dismissing Quality for lack of standing.
In summary, our decision goes no further than to hold that a record owner of stock in a corporation has standing under K.S.A. 60-223a to bring a shareholder derivative action on behalf of the corporation. In reversing and remanding for further proceedings, we do not reach the merits of the case.
Disqualification of Morrison 6- Hecker
Quality and the Pyle Estate additionally contend that the law firm of Morrison & Hecker should be disqualified from the dual representation of Thorman and Wright due to Thorman’s and Wright’s irreconcilable conflict of interest and because attorneys from the firm are necessary witnesses for Quality. The alleged irreconcilable conflict arises from Morrison & Hecker’s representation of both Wright and Thorman in this litigation wherein Wright and Thorman allegedly take directly opposite factual positions as to the ownership of Red Coach stock.
In the double derivative action, Thorman, through Morrison & Hecker, took the position that Quality and Wright were the owners of Red Coach stock. However, Thorman later alleged that he did not take the position that Quality owned half of the Red Coach stock, but rather that he accepted the allegations of the petition that Quality and Wright were shareholders for the limited purpose of explaining to the trial court that the plaintiffs allegations failed to state a claim for relief. We agree that Thorman’s statements in the double derivative action regarding Quality’s and Wright’s shareholder status were for the limited purpose of alleging the failure to state a claim for relief. As a result, we will not consider those statements in determining whether Thorman’s and Wright’s positions are directly adverse.
In the single derivative action, Thorman, again through his attorneys at Morrison & Hecker, gave the following answer to an interrogatory asking Thorman to identify all shareholders in Red Coach from the commencement of corporate operations to the present:
“Eldon Thorman and Edwin T. Pyle were the owners of [Red Coach] until Edwin T. Pyle’s death. Eldon Thorman remains an owner of [Red Coach], . . . Edwin T. Pyle and Eldon Thorman were the only individuals that were involved in the formation, capitalization and operation of [Red Coach], Their mutual agreement was that each would have a 50% interest in the corporation. Their mutual intent was that their interests would pass to [Quality] (Pyle’s interest) and Eileen Wright (Thorman’s interest) upon their respective deaths, but that during their lives Eldon Thorman and Edwin T. Pyle would exercise complete ownership and control of [Red Coach], To this end, Eileen Wright acts as a nominee holder of Eldon Thorman’s shares. Although stock certificates were made out to both [Quality] and Eileen Wright on December 13,1973, neither [Quality] nor Eileen Thorman [sic] ever paid any consideration for their respective shares. These certificates were never delivered to either [Quality] or Eileen Thorman [sic]. Defendant Thor-man does not know who or what entity currently owns Edwin T. Pyle’s interest in [Red Coach].”
Moreover, throughout his answers to the interrogatories, Thorman repeatedly referred to himself and Pyle as the “sole owners” of Red Coach.'
Later, in response to Quality’s request for admissions wherein Thorman was asked to admit that “Exhibit 19 . . . are true and accurate copies of the unanimous consent minutes of the stockholders of Red Coach Inns, Ltd. from November 14,1973 through June 30, 1995,” Thorman gave the following denial:
“Denied. Exhibit 19 contains ‘Statements of Unanimous Consent to Action Taken by Stockholders in Lieu of Annual Stockholders Meeting’ for the years listed above with the exception of 1990 and 1994. Defendant Thorman specifically denies that Quality Developers or Eileen Wright were stockholders of [Red Coach] at the time any of these documents were drafted or executed.” (Emphasis added.)
We interpret the italicized portion of Thorman’s denial as conveying his regard that ownership of Red Coach is a genuine issue for trial. Because Thorman did not admit that Quality or Wright are beneficial owners of Red Coach, he was free to develop the ownership issue and theorize that legal and equitable title is split between Thorman and Wright. See 3 Kooman, Federal Civil Practice § 36.01 (1970) (“The very purpose of a request is to ascertain whether the answering party is prepared to admit the fact alleged in the request or regards it as presenting a genuine issue for trial.”). As a result, we will not consider Thorman’s denial regarding Wright’s status as a stockholder in determining whether Thorman’s and Wright’s positions are directly adverse.
Quality and the Pyle Estate argue that Thorman’s statements that he owns Red Coach contradicts Wright’s position that she is a shareholder in the corporation. In Wright’s motion to consolidate her custodianship proceeding with the single derivative action, she stated that she was a stockholder of Red Coach. Wright made a similar statement in an affidavit wherein she attested to the fact that she was the owner of 400 shares of Red Coach stock. Wright’s motion to consolidate and affidavit were prepared by Morrison & Hecker.
Based on these alleged inconsistent positions advanced by Morrison & Hecker on behalf of Thorman and Wright, Quality and the Pyle Estate moved to disqualify Morrison & Hecker, arguing that the law firm violated Rules 1.7 (2000 Kan. Ct. R. Annot. 339), 3.1 (2000 Kan. Ct. R. Annot 380), 3.2 (2000 Kan. Ct. R. Annot. 382), 3.3 (2000 Kan. Ct. R. Annot. 385), and 3.4 (2000 Kan. Ct. R. Annot. 389) of the Kansas Rules of Professional Conduct (KRPC).
Morrison & Hecker attempted to explain the apparently conflicting positions by arguing to the trial court that the statements made by Thorman and Wright are consistent with the theory that Thorman is the beneficial owner of the Red Coach stock and that Wright is the nominal owner of the stock.
The trial court denied the motions to disqualify Morrison & Hecker after finding that the law firm had not taken a position on behalf of Thorman or Wright that was directly adverse to the other and that no conflict existed between those parties. The trial court further found that the affidavits and pleadings filed by Morrison & Hecker on behalf of its clients comport with the theory that legal and equitable title to Red Coach was divided between Thorman and Wright.
On appeal, Quality and the Pyle Estate argue that the trial court erred in refusing to disqualify Morrison & Hecker. In an attorney disqualification case, the appellate court is to decide whether the trial court’s findings of fact are (1) supported by substantial competent evidence, and (2) sufficient to support the conclusions of law. This court’s standard of review of conclusions of law is unlimited. Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 760-63, 897 P.2d 104 (1995).
“A court deciding a motion to disqualify counsel must balance several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process. [Citation omitted.]” Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 571, 808 P.2d 1369 (1991). Moreover, this court observed the following in LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, 750, 876 P.2d 184 (1994):
“ ‘Motions to disqualify ‘‘should be reviewed with extreme caution for they can be misused as a technique[] of harassment.” ’ [Citation omitted.] ‘Such motions are often simply “ ‘common tools of the litigation process, . . . used ... for purely strategic purposes.’ ” ’ [Citation omitted.] ‘The right to be represented by counsel of choice is an important one, subject to override only upon a showing of compelling circumstances.’ [Citation omitted.] . . . ‘[T]he purpose of the [Model Rules of Professional Conduct] can be subverted when they are involved by opposing parties as procedural weapons.’ [Citation omitted.]”
Motions to disqualify are often disguised attempts to divest opposing parties of their counsel of choice. Chrispens, 257 Kan. at 772.
In a motion to disqualify under KRPC 1.7, the general rule is that the burden of proof is on the party who seeks disqualification. See ABA/BNA Lawyers’ Manual on Professional Conduct, § 51:228 (1992). KRPC 1.7 concerns conflicts of interest involving adverse concurrent representation and provides as follows:
“(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
“(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer s responsibilities to another client or to a third person, or by the lawyer s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.” 2000 Kan. Ct. R. Annot. 339.
The Comment to KRPC 1.7 (2000 Kan. Ct. R. Annot. 340) indicates that, in regard to representation of more than one party in litigation, “[a]n impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.”
On appeal, it is alleged that Morrison & Hecker must be disqualified because the positions advanced by the firm on behalf of Thorman and Wright are incompatible. Thorman responds to the allegation by contending that Quality and the Pyle Estate merely rely on the fact that he and Wright have not always specified the type of ownership interest in Red Coach that they claim.
We agree with the trial court that Morrison & Hecker has not taken a position on behalf of Thorman or Wright that is directly adverse to the other. The positions advanced by the firm are consistent with the theory that beneficial and nominal ownership is split between Thorman and Wright. For example, in his answer to interrogatories, Thorman claimed that he and Pyle were the sole owners of Red Coach. However, Thorman admitted that 50% of Red Coach stock is in Wright’s name, but that Wright is a nominal holder of the stock. Moreover, Wright’s claim that she owns 50% of Red Coach stock is consistent with Thorman s position. Although Wright claimed ownership of Red Coach stock, she did not allege that she is a beneficial owner of the stock. As a result, we find that the trial court did not err in finding that Thorman’s and Wright’s positions are not directly adverse.
It is further alleged that Morrison & Hecker should be disqualified from the dual representation because there is a substantial discrepancy in Thorman’s and Wright’s testimony given at the hearing on the motions to disqualify. First, it is alleged that there is a substantial discrepancy in Thorman’s and Wright’s testimony regarding Wright’s affidavit and her application for custodianship. Specifically, the Pyle Estate argues that Thorman’s and Wright’s testimony conflicted as to who prepared Wright’s affidavit and whether Thorman saw Wright’s affidavit before the hearing on the motions to disqualify. In addition, it is alleged that Thorman’s and Wright’s testimony conflicted regarding who prepared Wright’s custodianship application, whether the application was prepared at Thorman’s direction, and who requested the relief sought in the application.
It is important to note that Thorman’s and Wright’s testimony regarding the affidavit and application for custodianship was given during the hearing to determine whether Morrison & Hecker should be disqualified for advancing inconsistent positions on the issue of ownership of Red Coach on behalf of Thorman and Wright. Accordingly, the alleged discrepancies are not material to the issue of whether Thorman’s and Wright’s positions are directly adverse. To constitute a substantial discrepancy, the differences in the testimony must be material to the issues to be resolved. See Black’s Law Dictionary 1428 (6th ed. 1990) (defining “substantial” as “[s]ynonymous with material”). Because the testimony regarding the affidavit and application for custodianship is collateral to whether Thorman’s and Wright’s positions on the issue of ownership of Red Coach are adverse, it cannot be said that any discrepancies regarding those topics are substantial.
The other alleged discrepancy in Thorman’s and Wright’s testimony involves ownership of Red Coach stock. During the hearing on the motions to disqualify Morrison & Hecker, Wright testified that she was the owner of400 shares of Red Coach stock. However, Thorman testified that he disagreed with Wright’s testimony that she was a shareholder.
We do not find a substantial discrepancy in Thorman’s and Wright’s testimony regarding stock ownership so as to require disqualification of Morrison & Hecker. Although Thorman disagreed with Wright’s testimony that she was a stockholder of Red Coach, Thorman’s disagreement was expressed in the context that Wright’s interest was merely nominal and that he and Pyle were the beneficial owners of Red Coach. As a result, we find that Thorman’s and Wright’s testimony regarding ownership of Red Coach is not substantially different because the testimony is consistent with the theory that legal and equitable title is split between Thorman and Wright.
Finally, it is argued that Morrison & Hecker should be disqualified from representing Thorman and Wright because attorneys from the law firm are necessary witnesses for Quality. Quality alleges that the creation of the conflict via the nominal stock ownership theory rendered attorneys from Morrison & Hecker necessary witnesses to a critical factual issue. Quality further contends that the testimony of Morrison & Hecker attorneys will be adverse to Thorman or Wright or both.
Whether a disciplinary rule prohibits certain professional conduct is a question of law subject to plenary review on appeal. LeaseAmerica Corp. 19 Kan. App. 2d at 743-44. The LeaseAmerica Corp. court noted factors to be considered in determining whether a motion for disqualification should be granted:
“ ‘[W]hen an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that tire attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney’s client.’ ” 19 Kan. App. 2d at 751 (quoting Smithson v. U.S. Fidelity & Guar. Co., 186 W. Va. 195, 201, 411 S.E.2d 850 [1991]).
We find that Quality has failed to establish that attorneys from Morrison & Hecker would be necessary witnesses for Quality. Spe cifically, Quality does not point to any testimony which Morrison & Hecker attorneys would give that would be adverse to their clients’ interests. Moreover, Quality has failed to show that testimony by attorneys from Morrison & Hecker would be material to the issues to be resolved, that the evidence could not be obtained elsewhere, or that the attorneys’ testimony would be potentially prejudicial to Thorman or Wright. Mere speculation is not a sufficient basis for an order to disqualify an attorney. LeaseAmerica Corp., 19 Kan. App. 2d at 753. As a result, the trial court did not err in refusing to disqualify Morrison & Hecker attorneys from the dual representation of Thorman and Wright.
Setting Aside Voluntary Dismissal of the Pyle Estate
In its cross-appeal, the Pyle Estate argues that the trial court erred as a matter of law in setting aside Quality’s voluntary dismissal of the estate based on the settlement the Pyle Estate entered into with Quality. To support its position, the Pyle Estate relies on K.S.A. 2000 Supp. 60-241(a)(l)(i). In pertinent part, the statute provides: “Subject to the provisions of subsection (e) of K.S.A. GO-223 and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs . . . .”
The Pyle Estate insists that K.S.A. 2000 Supp. 60-241(a)(l)(i) allows Quality to voluntarily dismiss the Pyle Estate without court approval because the dismissal occurred before the Pyle Estate or Thorman filed an answer or motion for summary judgment. Because this issue requires an interpretation of K.S.A. 2000 Supp. 60-241(a)(l)(i), our standard of review is unlimited. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 2000 Supp. 60-241(a)(l)(i) mirrors Rule 41(a) (l)(i) of the Federal Rules of Civil Procedure. Accordingly, authorities interpreting the federal rule are persuasive. See Newton v. Hornblower, Inc., 224 Kan. 506, 511, 582 P.2d 1136 (1978).
“There are three situations where a voluntary dismissal is not possible under Rule 41(a)(l)(i).” One of the three situations re quiring approval of the court before dismissal is a shareholder derivative action because “Rule 23.1 prohibits dismissal of derivative actions by shareholders without approval of the court.” 4 Kooman, Federal Civil Practice § 41.01 (1970). Fed. Civ. Proc. R. 23.1 is the federal counterpart to K.S.A. 60-223a, which states in pertinent part that a shareholder derivative action “may be dismissed or compromised only with the approval of the court upon notice to shareholders or members in such manner as the court may direct.”
The court in Winkelman v. General Motors Corporation, 48 F. Supp. 490, 493 (S.D.N.Y. 1942), noted the following regarding the requirement that the trial court approve a settlement in a derivative action:
“The role of the court is to see that the compromise is fair and reasonable under the circumstances and that no collusion or fraud has been practiced in the consummation of the settlement. To do this the court must weigh the probabilities and the possibilities of victory or defeat as indicated by the legal or factual situation presented. If such considerations lead to the conclusion that the settlement agreed upon by the plaintiffs in the suit is not unfair or unreasonable to the corporation (in which all the other stockholders have their interest), then tire action of the plaintiffs in compromising the suit should be approved.”
Because K.S.A. 60-223a permits dismissal in a shareholder derivative action only with the approval of the trial court, we find that the trial court did not err as a matter of law in setting aside the voluntary dismissal of the estate by Quality based on the settlement entered into between Quality and the Pyle Estate.
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Beier, J.:
This case requires us to decide whether law enforcement officers’ warrantless entry into a commercial building at night, when a door had been left ajar and a light left on inside, violated the business owner’s Fourth Amendment right to be free of unreasonable searches and seizures.
Defendant-appellant David G. Baughman seeks reversal of his drug convictions, contending the district court erred in denying his motion to suppress evidence found in the building housing his business. Law enforcement officers discovered marijuana growing inside Baughman’s business when they entered the building about 3:30 a.m., prompted by an open exterior door and a light inside. Suspecting a burglary in progress, the officers did not attempt to contact Baughman before entering the building, although at least one of them was aware the business was his. The building was located in Walton, Kansas.
One of the deputies testified that standard safety procedure dictated they should search a commercial building found in circumstances such as the one in this case before calling the business owner. Indeed, at oral argument, the State took the position that law enforcement officers should be permitted to enter a commercial building under these circumstances, even if an owner had been contacted and refused to give consent, because the officers are responsible for protecting the owner regardless of whether he or she declines to be protected.
After the officers observed a grow light and plants appearing to be marijuana in the building, they obtained a search warrant and seized numerous marijuana plants and growing equipment from the building. A detective testified that defendant waived his Miranda rights and admitted to growing the marijuana for his personal use.
Baughman moved to suppress the evidence and his statements. The district court denied the motion, relying primarily upon Banks v. State, 229 Ga. App. 414, 493 S.E.2d 923 (1997), overruled on other grounds Calbreath v. State, 235 Ga. App. 638, 640 n.3, 510 S.E.2d 145 (1998). Banks recognized a “security check” exception to the warrant requirement in specific circumstances. The Tenth Circuit had rejected a broad security check exception in favor of a more flexible approach in United States v. Bute, 43 F.3d 531 (10th Cir. 1994).
When, as here, the facts material to a motion to suppress evidence are not in dispute, the question of whether to suppress is one of law subject to unlimited review by the appellate court. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 [1967]).
Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventoiy searches; plain view; and administrative searches of closely regulated businesses. See Canaan, 265 Kan. at 843 (inventory search of impounded automobile; plain view); State v. Box, 28 Kan. App. 2d 401, 404, 17 P.3d 386 (2000) (citing State v. Sanders, 5 Kan. App. 2d 189, 195, 614 P.2d 998 [1980]) (consent, search incident to arrest, stop and frisk, exigent circumstances, hot pursuit); State v. Jones, 24 Kan. App. 2d 405, 410-12, 947 P.2d 1030 (1997) (emergency doctrine recognized in State v. Jones, 2 Kan. App. 2d 38, 573 P.2d 1134 [1978]); State v. Marsh, 16 Kan. App. 2d 377, 381-87, 823 P.2d 823 (1991) (citing as controlling New York v. Burger, 482 U.S. 691, 702-03, 711-12, 96 L. Ed. 2d 601, 107 S. Ct. 2636 [1987]); see also Steagald v. United States, 451 U.S. 204, 218, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981) (recognizing hot pursuit exception as one example of exigent circumstances exception); State v. Riddle, 246 Kan. 277, 280, 788 P.2d 266 (1990) (same).
Although our appellate courts also frequently refer generally to “reasonableness” as the guiding principle of Fourth Amendment analysis, see, e.g., In re L.A., 270 Kan. 879, 21 P.3d 952 (2001) (citing New Jersey v. T.L.O., 469 U.S. 325, 340, 83 L. Ed. 2d 720, 105 S. Ct. 733 [1985]); State v. Jones, 27 Kan. App. 2d 476, 479, 5 P. 3d 1012 (2000), affd. 270 Kan. 526, 17 P.3d 359 (2001), we do not interpret these references as a license to ignore or discount the recognized exceptions to the warrant requirement. Rather, we think it wise to avoid “the wild card of general reasonableness” as the rationale for our decisions in Fourth Amendment cases. See Alaska v. Myers, 601 P.2d 239, 245-46 (Alaska 1979) (Boochever, C.J., dissenting) (vague “reasonableness” standard; “leave it to the officer on the beat . . . [and] the trial judge” to make an unguided determination); see also Bute, 43 F.3d at 534-35 (precedent “neither establishes nor condones application of an amorphous ‘reasonableness’ test” to determine constitutionality of warrantless search; clearly defined exception to warrant requirement must apply). A vague standard resting only on an individual judge’s or an individual law enforcement officer’s idea of what is “reasonable” in any of myriad combinations of circumstances is bound ultimately to yield inconsistent, and consequently unfair, results.
We are thus faced with three options: (1) We can affirm, holding that this search fits within one of the exceptions to the warrant requirement already recognized in Kansas; (2) we can affirm, outlining and applying a new exception for Kansas cases; or (3) we can reverse, holing that none of the existing exceptions applies and declining to carve out a new one to fit nighttime security sweeps of unexpectedly open and lit commercial premises.
The district court chose the second option, electing to follow Banks in recognizing a new security check exception. Baughman argues this was error, because of the earlier Bute decision from the Tenth Circuit.
In Bute, police officers observed an open garage door on a commercial building about 11 p.m. No vehicles were in the garage; no one was in or around the building; there was no sign of forced entry. Suspecting an earlier burglary or vandalism, one of the officers entered through the open garage door to check out the sit uation and immediately smelled a very strong odor. Unable to identify it, he opened each of three doors along the wall in the garage. Behind the third door, he found a methamphetamine lab. A search warrant was obtained and executed, and physical evidence was collected. As in this case, the district court in Bute denied the defendant’s motion to suppress. Bute, 43 F.3d at 533-34.
On appeal, the Tenth Circuit declined to follow California v. Parra, 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied 414 U.S. 1116 (1973); Myers, 601 P.2d 239; and Illinois v. Gardner, 121 Ill. App. 3d 464, 459 N.E.2d 676 (1984). Bute, 43 F.3d at 535-37. Each of those three cases had permitted warrantless searches of commercial premises left unlocked or open at night; each had followed a different route to that common conclusion.
Parra was first in time. In that case, a citizen reported around nightfall that a front door of a closed florist shop was open, and a police officer responded. The door could not be locked without a key. The officer was initially unsuccessful in finding the name of the proprietor, despite looking around inside the business and contacting his dispatcher. He and a back-up officer then resorted to a more diligent search, entering a back part of the store and opening a desk drawer. There they found drugs. The court invoked the Restatement (Second) of Torts § 197 for the proposition that a person who ordinarily would be considered a trespasser
“is privileged to enter and remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the land or chattels of the other party, unless the actor has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.” 30 Cal. App. 3d 729 at 732-33.
Myers came next. In that case, police officers on routine patrol observed a light in a normally dark exterior corridor at 2:30 a.m. As they approached its source, they saw that a fire exit of a closed theater had been propped open. They entered the theater and found defendant and others using drugs. The majority of the Alaska Supreme Court based its approval of this search on its belief that occupiers of commercial premises have a less intense expectation of privacy than occupiers of residential premises. And, “[w]hen a police intrusion takes place in a context in which only a ‘diminished expectation of privacy exists, such a search must be ‘reasonable’ within the meaning of the Constitution, but may not necessarily be subject to the warrant requirement.” 601 P.2d at 242. It observed that, at 2:30 a.m., “when the doors close, the [business] owner has gone home, and night falls, tire owner’s interest is normally not the protection of private conduct; at such a time, when the property is most vulnerable to burglary, the security of the premises ordinarily becomes the paramount interest.” 601 P.2d at 243. Accordingly, the court said:
“[W]e hold that law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry. In the context with which we are immediately concerned, locked premises must be taken as indicating that no warrantless entry is authorized. Any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises. In addition, someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken.” 601 P.2d at 244.
In Gardner, the court examined a police officer s nighttime entry into an auto repair shop through a closed but unlocked door checked during a routine patrol. Once inside, the officer found a stolen car. Although the court said it was “well settled in Illinois that the protection of the Fourth Amendment extends to commercial premises in which there is a reasonable expectation of privacy against governmental intrusion,” 121 Ill. App. 3d at 468, its “distillation” of the Myers and Parra cases led it to hold that
“in certain limited circumstances law enforcement officials may enter an unsecured or unlocked commercial establishment during a nighttime security check to secure the premise and may take necessary measures to ascertain the identity of the proprietor. However, the courts will be vigilant to ensure that the rationale of protecting private property is not employed as a subterfuge to seek out evidence of criminal conduct. [Citation omitted.]” 121 Ill. App. 3d at 470.
The court was unimpressed by defendant’s argument that the officer should have contacted him before proceeding. Once the stolen car was discovered, the court said, it was understandable that “the urgency of contacting the owner of the building . . . may have taken second place to or been eclipsed by the subsequent attempt to secure a search warrant for the premises.” 121 Ill. App. 3d at 471.
In Bute, the Tenth Circuit panel rejected what it termed a “wholesale exception” to the warrant requirement because “it makes no accommodation for the particular nature and circumstances surrounding individual buildings.” 43 F.3d at 537.
“In so holding, we are mindful both of an officer’s desire to protect the citizens and property on his or her patrol and the public’s expectation regarding the protection of commercial property. In holding as we do, we do not suggest an officer can never enter commercial premises that are left open at night. We simply conclude a warrantless entry only is permitted under the Fourth Amendment when the officer has an objectively reasonable belief that an emergency exists requiring immediate entry to render assistance or prevent harm to persons or property within. While the infinite array of facts that may satisfy this requirement must be assessed on a case-by-case basis, it is clear that observing an open and unsecured building, without more, does not. In our judgment, the Fourth Amendment rights of all citizens outweigh the (lesser) expectations of some business owners that law enforcement authorities will enter and secure commercial premises found open at night.” 43 F.3d at 539-40.
In Banks, the Georgia decision relied upon by the district court in this case, police officers on routine patrol about midnight were surprised to see a light burning in a commercial building and two unfamiliar cars parked nearby. Aware that two businesses on the same beat had been burglarized the night before, they checked the door of the business. Finding it unlocked, they entered the building, immediately smelled burning marijuana, and then discovered the defendant-owner. He led them to a back room containing marijuana smoke and a marijuana pipe and gave the officers the marijuana he had on him.
The Banks court cited Gardener, Parra, and Myers on its way to holding that officers who find an unlocked closed business during a normal security sweep may conduct a limited intrusion for the purpose of securing the area and making sure no intruders are present. 229 Ga. App. at 415-16. It noted the Tenth Circuit’s expressed concern in Bute about creating a “wholesale exception” and found such an intrusion proper only when: (1) the officer holds a reasonable belief that the building’s owner or rightful occupants would not object to the intrusion and (2) circumstances are sufficient to give the officer an articulable suspicion that unauthorized persons are on the premises. 229 Ga. App. at 416-17.
Florida has also weighed in on a similar search.
In State v. Bell, 249 So. 2d 748 (Fla. Dist. App. 1971), a patrolling police officer observed a light burning and a blanket covering the rear window of a business at 3:30 a.m. Upon checking the front door, he found it closed but unlocked. Believing a burglary was in progress, he summoned backup, and the two officers entered the business unannounced. They found defendants and drugs within. Interpreting and applying a Florida statute prohibiting an unannounced entiy except in specific circumstances, the court said that the officer reasonably believed announcement of his entry was excused because he might have exacerbated a dangerous situation. In addition, the court said the search was reasonable because it was consistent with the officer’s duty to pursue crime prevention. 249 So. 2d at 750-51.
Despite these diverse authorities from sister states, we, like the Tenth Circuit, are not persuaded that recognition of a new “wholesale exception” to the warrant requirement for nighttime security checks of commercial buildings is necessary or wise. We hold, however, that the particular warrantless entry and ensuing limited search at issue here were permissible under the emergency doctrine previously recognized and applied in Kansas.
In Jones, 24 Kan. App. 2d at 410-13, we analyzed earlier mentions of the emergency doctrine in Kansas appellate decisions, concluding that only State v. Jones, 2 Kan. App. 2d 38, relied solely on the doctrine for decision. We endorsed a three-part test to determine whether the doctrine should be applied in a given case, stressing the need for a common sense approach:
“ ‘(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“ ‘(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“ ‘(3) There must be some reasonable basis, approximating probable cause, to associate tire emergency with the area or place to be searched.’ ” 24 Kan. App. 2d at 413 (quoting People v. Mitchell, 39 N.Y.2d 173, 177-78, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976]).
In this case, we are satisfied that all three of these criteria are met. The officers’ observations of a light within the business and its outside door ajar after dark gave rise to a reasonable belief that there was an emergency at hand and an immediate need for their assistance for the protection of life or property. Although the officers could have made an effort to contact Baughman, they were not required to do so here, given the lateness of the hour and the need to respond to the possible emergency without delay. On this point, it is also persuasive that law enforcement officers had executed similar checks of these particular premises in the past, that Baughman had known of the checks, and that he had expressed no disapproval.
As to the second prong of the test, the officers entered the commercial premises not because they were motivated to catch the proprietor in criminal activity but because they wanted to protect him and his belongings. This protection motivation satisfies this prong.
As to the third prong, the officers possessed the necessary probable cause—not that a crime was being committed—but certainly that the area to be searched was associated with the possible emergency. It was in fact the only area open and lit at an odd hour.
As we stated in Jones:
“The emergency doctrine reflects a recognition that the police perform a community caretaldng function which goes beyond fighting crime. [Citation omitted.] Under this function, the community looks to the pohce to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved. Warrantless entries into and searches of private property pursuant to this exception are not prohibited by the Fourth Amendment to the United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.” 24 Kan. App. 2d at 409-10.
The officers in this case were engaged in exactly such a “community caretaking function” when they entered Baughman’s business, and it was reasonable to behave as they did. There was no violation of Baughman’s Fourth Amendment right to justify suppression of the evidence ultimately seized. The district judge’s de cisión can be upheld despite its reliance on Banks. See Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999) (district court’s decision which reaches the right result will be upheld even though the court relied upon the wrong reason for the decision).
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Lewis, J.:
Jay Wells makes his living selling cotton candy and lemonade. His business is named Lemon Shake-Up and operates out of two mobile units. The question on appeal is whether Wells’ operations were properly licensed as they were operated at the Kansas State Fair in 1999.
In 1999, Wells had two mobile units at the Kansas State Fair. These units were located on the same 30-square-feet of property, which was referred to as Block 18, Space 7. The two mobile units are adjoining—on one side he sold cotton candy and lemonade on the other. Wells had a license as a food service establishment from the Kansas Department of Health and Environment (KDHE), which he posted in the trailer in which he made cotton candy. However, it was his understanding and belief that the license covered not only his cotton candy sales but also the trailer in which he was selling lemonade. Both of these trailers were open for inspection and were inspected on numerous occasions by the KDHE during the fair in 1999.
For 15 years, under the constant and thorough supervision of KDHE, Wells had operated with one license covering both of his trailers. For those 15 years, the KDHE had agreed that only one license was required. However, in 1999, the inspector for KDHE decided that one license was not sufficient and cited Wells for a failure to have a proper license in each trailer and imposed a fine of $1,000.
Wells first sought administrative review of his citation, and the presiding officer of the administrative appeals section of the KDHE held in favor of Wells, finding that only one license was required. The KDHE was much aggrieved by its appellate section decision and appealed that decision to the Secretary of the KDHE, who promptly reversed the decision of the presiding officer. Wells then appealed to the trial court, and the trial court reversed the Secretary’s order and held that the two concession trailers were only one single food establishment and required only one license. This appeal followed.
The first issue we must determine is one of venue. The KDHE argues that Sedgwick County was not the proper venue for this action. Wells argues that this issue was not raised before the trial court and has not been preserved for appeal.
In its answer to the petition for judicial review, the KDHE did object to venue, arguing that the location of the mobile unit was in Reno County, that the final order was effective in Shawnee County, and that Sedgwick County was an inappropriate county for venue. However, the issue was not raised in the hearing before the trial court by either party, nor was it addressed by the trial court. We conclude that die silence of the KDHE on the issue of venue during the hearing on merits before the trial court constituted a waiver of the issue of venue. In addition, we see no prej udice to the KDHE because of improper venue if, in fact, venue was improper.
We hold the issue of venue was not properly preserved for appeal, and we do not reach that issue.
We now turn to the merits. The KDHE argues the trial court erred in holding that Wells needed only one license for two mobile food establishments at the same location.
We disagree and affirm the decision of the trial court.
In reviewing the decision of the trial court on appeal from an agency action, we must first determine whether the trial court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as did the trial court. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999). The standard of review of a state administrative agency action is set forth in K.S.A. 77-601 et seq.
In this case, the trial court determined that the KDHE had erroneously interpreted or applied the law regarding the definition of “food service establishment”. as used in K.S.A. 36-503 and granted relief under K.S.A. 77-621(c)(4).
K.S.A.- 36-503(a) states: “It shall be unlawful for any person to engage in the business of conducting a food service establishment unless such person shall have in effect a valid license therefor issued by the secretary of health and environment.” “Food service establishment” is defined by K.S.A. 36-501(e):
“ ‘Food service establishment’ means any place in which food is served or is prepared for sale or service on the premises or elsewhere, such term include, but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tea room, sandwich shop, soda fountain, tavern, private club, roadside stand, industrial-feeding establishment, catering kitchen, commissary and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.”
This case turns upon the interpretation of what is a food service establishment. The presiding officer of the KDHE’s administrative appeals section and the trial court found that the definition was such that it covered the combined mobile units operated by Wells on the same lot at the fair. The Secretaiy of the KDHE did not agree and found that separate licenses were required, thereby concluding that the two trailers located side-by-side were separate food service establishments.
The trial court, in reversing the Secretaiy and agreeing with the presiding officer of the appeals section, relied on State v. Helgerson, 212 Kan. 412, 511 P. 2d 221 (1973). The Helgerson decision involved multiple food counters operated at Henry Levitt Arena on the campus of Wichita State University by the same operator. The operator had one license from the KDHE to cover the entire area operation and all of the separate food counters he operated at that location. The KDHE argued that the operator was required to purchase a separate license for each of the concession counters at which food was sold. The Supreme Court disagreed and held that the concessions constituted a single food service establishment for state licensing purposes. The court reasoned that there was only one premise where food was sold and that the public policy behind the licensing would not be better served by requiring the operator to procure several licenses instead of one. 212 Kan. at 413-14.
We are unable to distinguish Helgerson from the instant matter. The KDHE, in an attempt to do so, argues the statutory authority upon which Helgerson relied was repealed in 1975. That argument is rather hollow; the statute in effect in 1973 simply referred to “restaurants” and the amendment in 1975 changed the term used to “food service establishments.” See L. 1975, ch. 314. § 5. The statutes are virtually identical in every other way, and there was no change made in the statute which would affect Helgerson.
Based upon Helgerson, we hold that the two mobile units operated by Wells at the Kansas State Fair constituted one food service establishment and that only one license was required. We affirm the decision of the trial court to that effect.
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Marquardt, J.:
Red Dog Saloon, Million Dollar Babes, Glam-our Girls, and the Tender Trap (Red Dog) appeal the trial court’s denial of their motion to enforce a settlement agreement.
In 1989, the Sedgwick County Board of Commissioners (Board) passed a resolution prohibiting nudity in establishments which served alcohol. Red Dog took exception to the resolution and filed a petition for an injunction, claiming that the resolution was a violation of its rights under the Kansas and United States Constitutions.
In May 1990, Red Dog and the Board reached a “Settlement Agreement and Release,” whereby the Board would repeal the disputed resolution in exchange for the dismissal of Red Dog’s lawsuit. The new resolution allowed topless dancing in establishments which served alcohol. A portion of the settlement agreement read:
“The parties hereto mutually agree that all covenants, terms and conditions of this agreement shall extend, apply to and firmly bind their representatives, devisees, successors and assigns as fully as they each are bound to this agreement.”
Red Dog’s petition for injunction was dismissed with prejudice.
On June 28, 2000, the Board passed a resolution forbidding topless dancing at venues which sell alcohol.
Red Dog filed a motion to enforce its 1990 settlement agreement and asked the trial court to hold the Board in contempt until the agreement was enforced. A hearing was held, and Red Dog argued that while the Board might have authority to change the laws regarding topless dancing and alcohol, the new laws could not apply to any of the clubs named in the original settlement. The Board argued that attempts to enforce the agreement violated the county’s police power and relied on the ultra vires doctrine to support its argument.
The trial court held that the original resolution was an exercise of the Board’s police power and a county could not bind itself on a legislative function or limit the future use of its police power. The trial court held that to read the settlement otherwise would be ultra vires and unenforceable. Red Dog’s motion to enforce the settlement was denied. Red Dog appeals.
Red Dog claims that the settlement agreement is clear, unambiguous, and enforceable. Red Dog agrees that the Board may pass new laws; however, Red Dog also maintains that the parties must “abide by their agreement in regards to its four corners.”
The interpretation of a written instrument is a question of law, and regardless of the construction given to a written instrument by the trial court, we may construe the instrument and determine its effect. The primary rule when interpreting a written contract is to ascertain the intent of the parties. As a general rule, if the language of the written instrument is clear, there is no room for rules of construction. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998).
The trial court based its decision in large part on the ultra vires doctrine. A municipal corporation cannot bind itself by contract beyond the scope of its powers. The law is clear that persons contracting with a municipal corporation must inquire into the power of the municipal corporation and must at their peril know the authority of the municipal corporation. An attempt by a governmental agency to enter into a contract in violation of its authority will be considered void. In the event a municipal corporation enters into a contract it has no power to make, the contract is ultra vires and unenforceable. In addition, any reasonable doubt as to the existence of a particular power must be resolved against its existence. Wiggins v. Housing Authority of Kansas City, 22 Kan. App. 2d 367, 369-70, 916 P.2d 718 (1996).
In this case, the Board was relying on its police power when it enacted the new resolution. Police power is an inherent power of the sovereign and rests upon the fundamental principle that all property is owned subject to the limitation that its use may be regulated for the safety, health, morals, and general welfare of the community in which it is located. Hudson v. City of Shawnee, 246 Kan. 395, 403, 790 P.2d 933 (1990). A city does not have the authority to enter into a contract which effectively contracts away the exercise of its police powers. See P.C.B. Partnership v. City of Largo, 549 So. 2d 738 (Fla. Dist. App. 1989); Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 385, 834 P.2d 1344 (1992).
It is clear that a legislative body cannot bind its successor as to the amendment or repeal of its laws. Taneyhill v. Kansas City, 133 Kan. 725, 727, 3 P.2d 645 (1931). Yet that is exactly what the trial court would have condoned if it had agreed with Red Dog’s interpretation of the settlement agreement. The Board, acting in 1990, did not have the authority to contract away all future actions under this portion of its police power. Accordingly, any contract which purported to make such an agreement would be ultra vires and unenforceable.
The trial court did not err when it denied Red Dog’s motion to enforce the settlement agreement.
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Jackson, J.;
This is an action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. In two separate actions, the State Corporation Commission of the State of Kansas (KCC) granted the application of the City of Burlington (Burlington) for certificates to provide retail electric service within areas annexed by Burlington. The KCC orders also terminated the certificate to provide electric service in the annexed areas that had been held by Lyon-Coffey Electric Co operative, Inc. (Lyon-Coffey). Lyon-Coffey appealed the KCC orders to the district court of Coffey County. The two separate actions were consolidated. The trial court granted summary judgment to the KCC and upheld the agency orders. Lyon-Coffey appeals.
The uncontroverted facts adopted by the trial court are:
1. Lyon-Coffey is an electric cooperative providing retail electric service within portions of Coffey County, Kansas, including areas adjacent to and within the corporate limits of the City of Burlington, Kansas.
2. Authority to provide electric service in Coffey County was granted to Lyon-Coffey by the KCC through certificates of convenience and authority.
3. Between 1982 and 1997, several portions of the territory for which Lyon-Coffey provided electric service were annexed by the City of Burlington. The annexed areas are referred to by the parties and the KCC as Items 1, 2, and 3.
4. Item 1 involves Ordinances 316, 617, 629, and 548. At this time, the tracts covered by Ordinances 617 or 629 do not have any electric customers. Burlington provides service to customers in the other two tracts. Lyon-Coffey does not currently have customers in the Item 1 area and does not have a franchise for this area.
5. Item 2 is land annexed by Ordinance 440. Lyon-Coffey received a 10-year franchise for this area in 1988 but was notified in 1998 that the franchise was not being renewed. Lyon-Coffey has acknowledged that the franchise has been terminated. Lyon-Coffey continues to provide service to customers in this area but does so without a franchise. Burlington has stated that it intends to provide electric service to the Item 2 area.
6. Item 3 concerns Ordinance 534. Lyon-Coffey currently provides service to the Item 3 area but does not have a franchise for this territory. Burlington intends to provide electric service to the territory in Item 3.
7. On May 6, 1999, in case No. 98-BULE-709-COC, Burlington filed an application with the KCC for a certificate of convenience and authority for transmission rights in the annexed areas. On June 24, 1999, in case No. 98-BULE-824-COC, Burlington filed an application with the KCC for a certificate of convenience and authority to provide electric service in the annexed areas. Both of these applications requested that the KCC terminate the certificate for these areas, which was held by Lyon-Coffey.
8. More than 180 days have passed since the dates of all the annexations.
9. Lyon-Coffey never obtained a franchise from Burlington to provide electric service in the annexed areas in Items 1 and 3.
10. Lyon-Coffey’s franchise in Item 2 was terminated by Burlington in 1998.
11. Burlington has stated that it intends to provide electric service itself to the annexed areas.
Lyon-Coffey challenges the trial court’s and the KCC’s interpretation of K.S.A. 66-131, K.S.A. 66-1,171, and K.S.A. 66-1,176.
Under the KJRA, an appellate court can grant relief if it determines the agency erroneously interpreted or applied the law. K.S.A. 77-621(c)(4). The parties seeking relief from an agency action have the burden of showing that the agency’s order is invalid. K.S.A. 77-621(a)(l).
“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 experience. Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
An electric public utility means every corporation, company, individual, or association that owns, controls, operates, or manages for public use any equipment, plant, or generating machinery for generating or selling electricity. K.S.A. 66-101a; K.S.A. 2000 Supp. 66-104. A municipally owned or operated electric utility located outside the city’s corporate limits by more than 3 miles is also included in the definition of an “electric public utility,” but a municipally owned or operated utility located within the city’s corporate limits or within 3 miles outside the city’s limits is not. K.S.A. 2000 Supp. 66-104.
A public utility must obtain a certificate from the KCC that public convenience will be promoted before providing services in Kansas; however, a municipally owned or operated public utility is not required to have KCC certification unless it is located more than 3 miles outside the city’s limits. K.S.A. 66-131.
A city has authority to grant a franchise to any public utility located and operated within such city or principally operated for the benefit of such city or its people. K.S.A. 66-133. Any complaints regarding such utility are filed with the KCC; if the KCC finds merit in the complaints, it recommends to the city to make the necessaiy changes. If the city does not, the KCC may file a suit against the city. K.S.A. 66-133(3).
Specific statutes apply to the retail supply of electricity. The legislature enacted the Retail Electric Suppliers Act (RESA), K.S.A. 66-1,170 et seq., in 1976. L. 1976, ch. 284, §§ 1-8. The public policy for RESA is to (a) encourage the organized development of retail electric service; (b) avoid wasteful duplication of facilities for distribution of electricity; (c) avoid needless encumbrance of the landscape; (d) conserve materials and natural resources; (e) facilitate public convenience and necessity; and (f) minimize disputes between retail electric suppliers to avoid inconvenience, decreased efficiency, and higher costs. K.S.A. 66-1,171.
To accomplish RESA’s policy, the legislative intent was to divide the state into territories within which retail suppliers are to provide the retail electric service. K.S.A. 66-1,171; Kansas Power & Light Co. v. Kansas Corporation Comm’n, 237 Kan. 394, 395, 699 P.2d 53 (1985). Under RESA, the KCC must divide the state into exclusive electrical service areas, allow only one retail electric supplier to provide retail electric service within each area, and certify that area to the retail electric supplier. K.S.A. 66-1,172.
Under RESA, a municipally owned or operated retail electric supplier is not required to have KCC certification unless it is located or provides service outside of the city’s limits. K.S.A. 66-1,174. Unlike the general statutes for public utilities, RESA has a statute regarding the annexation of an area by a city, which the KCC has certified to a retail electric supplier. In such situations, K.S.A. 66-1,176 (a) and (b) provide:
“(a) AH rights of a retail electric supplier to provide electric service in an area annexed by a city shaH terminate 180 days from the date of annexation, unless such electric supplier is then holding a valid franchise for service in the area granted by the annexing city. ... In the event service rights are terminated pursuant to tills section, the [KCC] shall certify such annexed area as a single certified territory to the supplier holding a franchise for or then providing retail electric service in the city immediately prior to the annexation.
“(b) In the event the supplier holding a franchise or then providing retail electric service does not effect the assumption of electric service to the annexed area at the termination of the applicable 180-day or 210-day period as provided in subsection (a), then the originaHy certified suppher shaH have the right to continue service to the annexed area and charge its ordinary rates therefor until such supplier does assume service to the annexed area. Such service shall be free of any franchise fee or other compensation to the city or the electric supplier holding the franchise. If the supplier holding a franchise has not assumed service to the annexed area within 180 days following the applicable 180-day or 210-day period provided in subsection (a), the city may require the originally certified supplier to obtain a franchise in order to continue service to the annexed area.”
In this case, the KCC interpreted and applied the provisions of K.S.A. 66-1,176(a) and determined that it was obliged to terminate Lyon-Coffey s certificates of authority and grant certificates to Burlington to supply electricity to the annexed areas.
Lyon-Coffey contends that KCC incorrectly determined that it was required to terminate Lyon-Coffey s certificates pursuant to K.S.A. 66-1,176(a). Lyon-Coffey argues that subsection (a) does not apply because Burlington did not grant a franchise or begin to serve the annexed areas within 180 days of the annexations. It contends that subsection (b) applies because Burlington did not assume service for more than 180 days following the initial 180-day termination (a total of 360 days); as such, subsection (b) only authorizes Burlington to grant a franchise to Lyon-Coffey and does not authorize or require the KCC to terminate Lyon-Coffey s certificate and grant a certificate to Burlington.
The difficulty with Lyon-Coffey s argument is that it reads K.S.A. 66-1,176(b) independently of subsection (a). Clearly, the language in subsection (b) upon which it relies is prefaced by a reference to subsection (a) and must be read together. If possible, a court should attempt to reconcile different provisions of an act so as to make them consistent, harmonious, and sensible. Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 113, 991 P.2d 889 (1999). When subsections (a) and (b) are read together, subsection (b) only gives the existing certified supplier the right to continue to provide service after annexation if a new supplier cannot promptly assume service. By doing so, it ensures that there is no interruption in service to customers. Subsection (b) also provides that if the new supplier cannot assume service within the applicable 360-day or 390-day time frame after the annexation, the city can require the existing certified supplier to obtain a franchise for the annexed area.
If K.S.A. 66-1,176(b) is interpreted as Lyon-Coffey argues, the result would be that it would be granted a continuing franchise contrary to Burlington s decision. The result would be contrary to the franchise authority granted to cities under K.S.A. 12-2001 et seq. To repeal K.S.A. 12-2001 et seq., without specific language from the legislature would lead to unreasonable results. The legislature is presumed to intend that its enactments be given a reasonable construction so as to avoid absurd or unreasonable results. Rockers, 268 Kan. at 113.
The trial court and the KCC were correct in deciding that K.S.A. 66-1,176(a) controlled in the present case. Lyon-Coffey did not acquire a perpetual right to provide service within the city limits of Burlington when Burlington did not promptly arrange for another utility to provide service to the franchised areas.
Lyon-Coffey argues that K.S.A. 66-131 and K.S.A. 66-1,171 require the KCC to make a finding of public convenience in order to grant a certificate and this requirement should be applied to K.S.A. 66-1,176. It contends that die KCC must conduct a hearing and make a finding that the issuance of a certificate to Burlington would promote public convenience. Lyon-Coffey urges that such an interpretation would make these statutes harmonious and consistent.
The KCC responds that K.S.A. 66-131 does not control because it is a general statute and the specific statute which applies is K.S.A. 66-1,176(a). Further, K.S.A. 66-1,171 sets forth public policy for dividing the state into exclusive service territories and does not relate to the requirements for issuing a certificate under K.S.A. 66-1,176(a).
Both parties argue that United Tel. Co. of Kansas v. City of Hill City, 258 Kan. 208, 899 P.2d 489 (1995), and City of New Strawn v. Kansas Corporation Commission, 5 Kan. App. 2d 630, 622 P.2d 149 (1981), support their respective positions.
In Hill City, United, a telephone utility, had a KCC certificate for the area encompassing two cities. Although only Hill City granted a franchise to United, the analysis and result were the same for both cities. Toward the expiration of the franchise term, United undertook a major project to upgrade its services and facilities. Dissatisfied with United’s telephone service, Hill City terminated its franchise at the expiration of the term, advising United that it no longer had authority to use the city’s infrastructure to update its lines. Hill City granted the franchise to another telecommunications utility which did not have a certificate from the KCC for that area. The KCC set forth orders regarding the completion of the necessary improvements by United.
The KCC was also conducting hearings regarding the quality of United’s service. During this investigation, Hill City filed a complaint against United, requesting that the KCC decertify United. The KCC refused to address the franchise terms between Hill City and United and also refused to decertify United because of the franchise termination. The KCC concluded that Hill City lacked authority to order United to cease its operations and modernization plans in its area.
Later, United filed a petition for mandamus, declaratory, and injunctive relief, requesting an order that it be allowed to use Hill City’s property for the placement of its telecommunications facilities and to enjoin Hill City from interfering with United’s use of the public property. The trial court held that Hill City could not be compelled to enter into a franchise with United. However, United had a statutory right to use Hill City’s property to string aerial lines but not an underground cable. Hill City and United appealed.
The Kansas Supreme Court concluded that United could update its equipment and service, including the right to bury cable, without a franchise from Hill City because it held the certificate from the KCC; the city could refuse to grant a franchise to United; and the KCC could grant or refuse a certification regardless of the city’s franchise decision. 258 Kan. at 223-25. Pursuant to the statutes for each tribunal, “the powers of the cities, telephone companies, and the KCC are supreme within their own areas of regulation.” 258 Kan. at 223.
In New Strawn, the KCC granted a certification to an electric cooperative association in 1938 in an area which was later incorporated as the City of New Strawn (City) in 1970. The City never granted a franchise to the co-op. Years later, the City granted a franchise to KG&E. KG&E applied to the KCC to change the certificate, which was denied. The trial court upheld the KCC order, and the City appealed, contending that the KCC erred in its interpretation of RES A. The City believed that the KCC could not refuse to grant a certificate when the City granted a franchise to another supplier.
This court found that KG&E was clearly subject to the jurisdiction of the KCC under K.S.A. 66-104 and K.S.A. 66-1,174 and no statutes for jurisdictional exceptions applied. Thus, the KCC had the power to deny a certificate regardless of whether the City had granted a franchise. 5 Kan. App. 2d at 635.
Neither Hill City nor New Strawn involved an annexation and termination of certification of a supplier’s territory under K.S.A. 66-1,176(a). The distinction in this case involves the KCC granting certification to a municipally owned and operated retail electric supplier which is located within the city’s corporate limits. Under K.S.A. 66-131 and K.S.A. 66-1,174, such public electric utility is not required to be certified by the KCC. Here, Burlington’s electric supplier was exempt from the KCC’s jurisdiction.
When an area is annexed by a city, it is then within the city’s corporate limits and neither K.S.A. 66-131, K.S.A. 66-1,171, nor K.S.A. 66-1,176 require the KCC to make a finding of public convenience in order to grant a certificate to such a municipally owned or operated utility. The statutes are harmonious and consistent regarding the certification of a municipally owned or operated utility located within the city’s corporate limits.
Lyon-Coffey argues that the KCC and the trial court erred in concluding that the word “shall” in K.S.A. 66-1,176(a) is mandatory. It contends that the word “shall” as used in the statute is directory because it gives a view to the proper, orderly, and prompt conduct of business, has no words of absolute prohibition, and does not provide a penalty for noncompliance. ■
Whether language in a statute is mandatory or directory is determined on a case-by-case basis, and the criteria is whether compliance with the language is essential to preserve the rights of the parties. Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 251, 954 P.2d 1096 (1998). If it is essential to the preservation of the rights of the parties, the statute is mandatory. Factors indicating the provisions of a statute are mandatory are: (1) the use of negative words that require an act shall be done by no other method or at no other time than that stated, or (2) provision for a penalty or other consequence for noncompliance. 264 Kan. at 251. The statute is directory where the provision establishes a manner of proceeding and a time within which an official act is to be done and is intended to secure order, system, and dispatch of the public business. 264 Kan. at 251.
Here, the statute preserves the rights of the existing retail electric supplier when a portion of its area is annexed and the city grants it a franchise. The city’s right to decide whether to grant a franchise to the certified supplier for the annexed area is also preserved. If the city does not grant a franchise to the certified supplier, the certified supplier’s rights are also protected under subsection (b) if the new supplier cannot immediately begin providing the service and under subsection (c) if the new supplier purchases the certified supplier’s facilities or operations. These provisions not only preserve the rights of the parties but also are essential to maintain retail electric service to consumers in the annexed area. Thus, the language of K.S.A. 66-1,176(a) is mandatory.
Finally, Lyon-Coffey argues that K.S.A. 66-1,176(a) is unconstitutional on its face or as applied. It contends that the statute unconstitutionally delegates legislative power to the city in deciding a statewide issue about which retail electric supplier should be certified by the KCC. It argues that this violates Article 2, § 21 of the Kansas Constitution.
Interpretation of a statute is a question of law, and appellate review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. It must clearly appear that the statute violates the constitution before striking it down. The court’s duty in determining the constitutionality of a statute is to uphold the statute under attack rather than defeat it. If there is any reasonable way to do so, the court should construe the statute as constitutionally valid. If the infringement of the superior law is clear beyond substantial doubt, the statute can be stricken down. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
Article 2, § 1 of the Kansas Constitution provides: “The legislative power of this state shall be vested in a house of representatives and senate.” Article 2, § 21 of the Kansas Constitution provides: “The legislature may confer powers of local legislation and administration upon political subdivisions.”
Lyon-Coffey argues that a certificate of convenience issued under K.S.A. 66-1,176(a) is a statewide concern, not a local concern, and that under the Kansas Constitution, the legislature cannot confer decisions concerning a statewide issue upon a local political subdivision. In support, it argues that the indirect economic effect of Burlington’s decision may be felt by Lyon-Coffey’s members outside of Burlington. This argument is not persuasive. Such economic effects could occur at any time a city changed a service provider. The decision of the trial court to the effect that the city’s decision was local in character is correct.
Lyon-Coffey next argues that under RES A, the legislature authorized tire KCC to choose the retail electric supplier within exclusive territories; therefore, conferring legislative power upon a city to choose the electric retail supplier for an annexed area pursuant to K.S.A. 66-1,176(a) is contrary to the other RESA statutes. The question is whether K.S.A. 66-1,176(a) delegates legislative powers or administrative powers.
“Legislative power is the power to malee a law, as opposed to the power to enforce a law. A legislature may try to delegate the legislative power to make a law. Such a delegation is improper, unless specific constitutional authority allows the legislature to delegate its legislative power to a different branch of government. If the constitution does not authorize a delegation of such legislative power, then the delegation is improper as a violation of the separation of powers doctrine and art. 2, § 1, which vests legislative power with the legislature only. However, a legislature may delegate an administrative power to a different branch of government. Administrative power is the power to administer or enforce a law, as opposed to the legislative power to make a law. The legislature does not need constitutional authority to delegate administrative power because it is not delegating a power reserved for its branch of government under art. 2, § 1.
“It is often difficult to determine if the legislature has delegated the legislative power to make a law or the administrative power to administer a law. The differ ence between the two types of delegated powers depends upon the amount of specific standards included within the delegation. If the legislature has included specific standards in a delegation, then it has already enacted the law and it is simply delegating the administrative power to administer the law, based on the standards included in the delegation. On the other hand, if the legislature has not included specific standards within a delegation, then the legislature has delegated the legislative power to make the law. Such delegation is improper without constitutional authorization. [Citations omitted.]
“A delegated power constitutes administrative power if the delegation contains sufficient policies and standards to guide the non-legislative body in exercising the delegated power. [Citations omitted.] In other words, the legislature may enact general provisions and delegate to an administrative body the discretion to ‘ “ ‘fill in the details’ ” ’ if the legislature establishes ‘ “ ‘reasonable and definite standards to govern the exercise of such authority.’ ” ’ [Citations omitted.]” State ex rel. Tomasic, 264 Kan. at 303-04.
K.S.A. 66-1,176(a) does not set forth specific standards for the city to consider in granting a franchise to a retail electric supplier. The purposes of RESA and K.S.A. 66-1,176(a) are not the same. The purpose of K.S.A. 66-1,171(a) is to guide the KCC in dividing the state into geographical areas. These purposes do not necessarily apply when a city is deciding its supplier for the annexed area under K.S.A. 66-1,176(a).
If the city chooses the retail electric supplier that supplied retail electricity to the city immediately before the annexation of the area, that supplier is either exempt under K.S.A. 66-1,174 or already certified by the KCC under K.S.A. 66-1,174 or K.S.A. 66-1,172. The city is then in reality extending the boundaries of that supplier.
K.S.A. 66-1,176(a) confers legislative power to the cities for a local matter which is authorized by Article 2, § 21 of the Kansas Constitution. The KCC and the trial court correctly interpreted K.S.A. 66-1,176(a).
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Elliott, J.:
In this case we must determine when a check is “properly payable” as that term is defined in Mo. Rev. Stat. § 400.4-401 (2000) (revised Uniform Commercial Code [UCC] § 4-401).
The checks at issue in this appeal were deposited in Missouri. Thus, substantive Missouri law applies. UCC. § 4-102(b) (K.S.A. 84-4-102[b], Mo. Rev. Stat. § 400.4-102[b] [2000]).
We affirm the trial court’s judgment.
This case was brought pursuant to the revised articles 3 and 4 of the UCC as adopted in Missouri. All UCC citations may be found in chapter 400 of the revised Missouri statutes, as well as chapter 84 of K.S.A. Throughout this opinion sections of the Code will be referred to by the UCC designation instead of the chapter 400 or chapter 84 designation.
The facts relevant to our decision are undisputed. Plaintiffs Buffalo Airways (Buffalo) and ALG, Inc. (ALG) employed defendants Rick Eldred and Randy Marshall between 1994 and 1996. During that time period, Eldred and Marshall embezzled over $800,000 of funds from the four plaintiffs who had common ownership. Buffalo held an account at defendant Boatmen’s First National Bank of Kansas City (Boatmen’s).
The embezzlement worked as follows: In August 1995, Eldred and Marshall opened a bank account at Boatmen’s in the name of a fictitious company, United Aviation Services, Inc. (United Aviation), where they deposited the embezzled funds.
In total there are 138 embezzled checks. Of these, 25 checks were drawn on the account Buffalo held at Boatmen’s and deposited in the account United Aviation held at Boatmen’s in the amount of $167,387.27. The remaining 113 checks were not drawn on an account at Boatmen’s but were deposited in the account United Aviation held at Boatmen’s in the amount of $494,293.08. Most, if not all, of the 138 checks were made payable to someone other than United Aviation. All checks were deposited in a Boatmen’s branch located in Kansas City, Missouri.
Plaintiffs sued all three defendants under various theories of liability. Only one claim comes before this court—a claim of negligence asserted by all plaintiffs against Boatmen’s. The petition alleged that Boatmen’s was negligent because it accepted these checks “even though they were not properly payable in that they contained either fraudulent or missing endorsements” and Boatmen’s “failed to exercise ordinary care in accepting these checks for value or for collection and in paying these checks.”
On the negligence claim the jury awarded ALG $28,025.25 and Buffalo $79,800 in damages. The jury did not award the other two plaintiffs any damages. Applying comparative fault principles, the jury found the plaintiffs to be 95% at fault, so plaintiffs’ judgment was reduced to a total of $5,391.26.
On appeal, plaintiffs contend that the district court erred in denying their motions for summary judgment and to alter or amend the judgment or, in the alternative, a new trial (the motions).
The issue on appeal is whether the district court erred in denying the motions. Resolution of this issue turns solely on whether the district court properly interpreted various portions of the revised articles 3 and 4 of the UCC. This is a question of law over which we have unlimited review. See King v. White, 265 Kan. 627, 632, 962 P.2d 475 (1998).
The plaintiffs argued in the motions that none of the 138 checks was properly payable as a matter of law as that term is defined in UCC § 4-401 because the endorsements were not “effective endorsements” as that term is defined in the UCC § 3-405. They continue this argument on appeal.
UCC § 4-401 is in part 4 of article 4 of the UCC entitled “Relationship Between Payor Bank and its Customer.” UCC § 4-401 reads in relevant part:
“4-401. When bank may charge customer’s account (a) A bank may charge against the account of a customer an item that is properly payable from that account even though the charge creates an overdraft. An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.”
By their legal argument as set out above, plaintiffs have abandoned all claims the district court erred in denying their motions with respect to the 113 checks. A “depository bank” is the “first bank to take an item even though it is also the payor bank, unless the item is presented for immediate payment over the counter.” UCC § 4-105(2). A “payor bank” is the “bank that is the drawee of a draft.” UCC § 4-105(3). The “payor bank” is also referred to as the “drawee bank.” In this case, Boatmen’s was the depository bank, not the payor bank on all of the 113 checks. Plaintiffs were not in a customer-payor bank relationship with Boatmen’s with respect to those 113 checks.
UCC § 4-401 sets no standard of care for depository banks. Rather, it sets the standard of care the payor/drawee bank owes its customer. Plaintiffs conceded this point at oral argument but ask this court to extend the principles of UCC § 4-401 to depository banks. This we cannot do for it would involve judicial rewriting of the UCC. See Knight Pub. v. Chase Manhattan Bank, 125 N.C. App. 1, 11, 479 S.E.2d 478 (1997) (“Courts should not change express provisions of the UCC by judicial construction.”).
The liability of a depository bank in accepting for deposit checks having missing or forged endorsements is adequately covered by the UCC. See, e.g., UCC § 3-307(b)(2)(iii) (the taker of an instrument has notice of breach of fiduciary duty if the instrument is deposited to an account other than an account of the fiduciary); UCC § 3-306 (one who is not a holder in due course who takes an instrument or its proceeds is subject to a claim of a property or possessory right in the instrument or its proceeds); UCC § 3-316 (breach of warranty of previous endorsements); Williams v. Liberty Bank & Trust Co., 746 So. 2d 275, 279-80 (La. 1999) (depository bank liable for conversion when it accepted for deposit checks with fraudulent endorsements, citing revised UCC §§ 3-206, 3-420); Dalton & Marberry, P.C. v. NationsBank, 982 S.W.2d 231, 237 (Mo. 1998) (allowing negligence claim against depository bank who took instruments for collection and payment when bank was not a holder in due course); see also Leeds v. Chase Manhattan Bank, 331 N.J. Super. 416, 422-23, 752 A.2d 332 (2000) (depository bank strictly hable in conversion by paying on check and forged endorsement, citing revised UCC § 3-420 and UCC § 4-105).
The district court did not err in denying plaintiffs’ motions with respect to these 113 checks.
We now turn to the remaining 25 checks on which Boatmen’s was the payor bank. Plaintiffs argue they are not “properly payable” because none of the endorsements was an “effective endorsement” as that term is defined in UCC § 3-405. We find this argument unavailing.
UCC § 3-405(b) and (c) state:
“(b) For the purpose of determining the rights and liabilities of a person who, in good faith, pays an instrument or takes it for value or for collection, if an employer entrusted an employee with responsibility with respect to the instrument and the employee or a person acting in concert with the employee makes a fraudulent endorsement of the instrument, the endorsement is effective as the endorsement of the person to whom the instrument is payable if it is made in the name of that person. If the person paying the instrument or taking it for value or for collection fads to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss resulting from the fraud, the person bearing the loss may recover from the person failing to exercise ordinary care to the extent the failure to exercise ordinary care contributed to the loss.
“(c) Under subsection (b), an endorsement is made in the name of the person to whom an instrument is payable if (i) it is made in a name substantially similar to the name of that person or (ii) the instrument, whether or not endorsed, is deposited in a depository bank to an account in a name substantially similar to the name of that person." (Emphasis added.)
Plaintiffs rely on Knight Publishing to support their proposition that the district court must determine as a matter of law whether an endorsement is effective as that term is defined in UCC § 3-405 to determine whether the check is properly payable pursuant to UCC § 4-401.
We read Knight Publishing differently. In that case, the North Carolina Court of Appeals held, applying prerevised UCC articles 3 and 4, that the checks at issue were not “properly payable” because they failed to contain the endorsement of the named payee. 125 N.C. App. at 7. The lack of the payee’s endorsement rendered the checks not “properly payable” because
“[a] check drawn to the order of a payee may not be negotiated without indorsement of that payee. See UCC § 3-202; see also James J. White & Robert S. Summers, Uniform Commercial Code 13-9 at 562 (3d ed. 1988) (‘[I]n the case of order instruments, only the payee or one who signs on his behalf can make the first effective indorsement and negotiate the instrument.’). This rule results because an instrument payable to order is ‘negotiated by delivery with any necessary indorsement,’ UCC § 3-202(1), which ‘must be written by or on behalf of the holder,’ UCC § 3-202(2), defined as one ‘in possession of ... an instrument . . . drawn, issued, or indorsed to him or to his order . . . .’ UCC § 1-201(20).
“The checks in this case were payable to the order of‘Graphic Image,’ yet were indorsed 'Graphic Color Prep.’ Nothing else appearing, therefore, the checks were not negotiated, and [the] drawee banks breached their duty under UCC § 4-401 to charge Knight’s account only for items ‘properly payable.’ See Tonelli v. Chase Manhattan Bank, N.A., 41 N.Y.2d 667, 394 N.Y.S.2d 858, 363 N.E.2d 564 (1977) (bank which honors check lacking indorsement of payee will be held hable pursuant to UCC § 4-401).” Knight, 125 N.C. App. at 7.
The Knight opinion discussed the applicability of certain defenses available to the bank, including revised UCC § 3-405. That court’s discussion of possible defenses to a claim the checks were not properly payable did not state the checks were not properly payable because the endorsements were not “effective.”
Acceptance of the plaintiffs’ legal theory would lead to an irreconcilable inconsistency in the UCC. Five of the 25 checks at issue here were fraudulently endorsed in the name of the payee. An item containing a forged endorsement is not properly payable. UCC Official Comment to § 4-401.
If, however, we were to adopt plaintiffs’ legal theory and define “properly payable” by reference to UCC § 3-405, these five checks would be properly payable. Pursuant to UCC § 3-405(b), a fraudulent endorsement is “effective” if made in the name of the payee, as that term is defined in UCC § 3-405(c). With respect to these five checks, the endorsements were effective because they were in the exact name of the payee.
Thus, an item bearing a forged endorsement in the name of the payee would be “effective” pursuant to UCC § 3-405(b) and (c), yet not properly payable pursuant to UCC § 4-401. If the plaintiffs’ argument that instruments bearing “effective” endorsements pursuant to UCC § 3-405(b) and (c) are properly payable pursuant to UCC § 4-401 is correct, an irreconcilable conflict within the Code results.
“ ‘ “In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.” [Citation omitted.]’ ” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 644, 941 P.2d 1321 (1997).
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.”[Citation omitted.]’ ” 262 Kan. at 643-44.
We choose to avoid the conflict urged by the plaintiffs and instead choose to read UCC §§ 3-405 and 4-401 in a “consistent, harmonious, and sensible” manner. We conclude the definition contained in UCC § 3-405(b) and (c) of an “effective endorsement” is only applicable in determining whether the defense contained in UCC § 3-405 is available to the bank. The definition of an “effective” endorsement in UCC § 3-405(b) and (c) has no bearing on whether the item is “properly payable” pursuant to UCC § 4-401.
The phrase “properly payable” was effectively undefined in the prerevised UCC §4-401. Govani & Sons Const. v. Mechanics Bank, 51 Mass. App. 35, 40, 742 N.E.2d 1094 (2001). Thus, courts found it appropriate to find the definition “properly payable” by reference to the common law. 51 Mass. App. at 40-41. Govani then went on to note and apply the common-law definition of properly payable to checks that were factually similar to 16 of the 25 checks at issue here (checks made payable to Boatmen’s on Buffalo’s account and deposited into the United Aviation account without endorsement). 51 Mass. App. at 40-41 (citing Dalton & Marberry, P.C. v. NationsBank, N.A., 982 S.W.2d 231, 234 n.2 [Mo. 1998]).
Unlike the old UCC, revised UCC § 4-401 does define when a check is properly payable. UCC § 4-401(a) now states: “An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and its bank.” Thus, in order to determine if a check is properly payable, “reference must first be made to the agreement estabhshing the account between the customer and the bank,” and then “the customer must have, expressly or implicitly, authorized the payment.” 7 Anderson on the Uniform Commercial Code, Rev. § 4-401:5 (3d ed. 2000).
We believe this to be the proper definition of a properly payable item. When the legislature revises an existing statute, we presume the legislature intended to change the law existing prior to the amendment. See State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998).
We need not analyze whether the 25 checks were properly payable as that term is defined by revised UCC § 4-401 (a). It is enough for us to note the plaintiffs have not urged this legal theory on appeal.
On appeal, a party may not assert a new legal theory. Cashman v. Cherry, 270 Kan. 295, 298, 13 P.3d 1265 (2000).
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Per Curiam:
Kimberly Fisher appeals the judgment in favor of Michael Smith for noneconomic losses suffered as the result of an automobile accident.
Smith and Fisher were involved in an automobile accident. The accident report prepared by law enforcement officers indicated the vehicles were traveling in opposite directions when Fisher crossed into Smith’s lane. The vehicles collided and Jeremy Reid, Smith’s stepson and passenger, was taken to the hospital. Smith accompanied him to the hospital but was not himself treated or admitted.
Smith and Reid filed suit against Fisher, claiming she had been negligent in the operation of her vehicle. They asked for a monetaiy judgment in Reid’s favor for $50,000 and in Smith’s favor for $100,000. The case was tried to a jury.
Smith testified he banged his knees on the dashboard of his truck during the collision. He testified that at the moment of impact, he had too much adrenaline going through his system and was too concerned about Reid to feel any pain, but the following morning his knees were swollen and bruised. Smith was working as a plumber and testified he had trouble at work the day after the accident. He went home for a time that day and wrapped his knees with ice.
Smith testified he had no problems with his knees prior to the accident. He was involved in an accident in 1983 where his knees were run over by a vehicle, but he claimed there were no residual effects from that accident. Smith continued to work after the accident and until trial with no restrictions, although he had to do exercises at work to alleviate the pain. He also testified to being able to do fewer activities with his children and around his home.
Two days after the accident, Smith visited Dr. Alvin Bird, who prescribed medication to help with the swelling and ordered X-rays, which showed no broken bones. Approximately 1-1/2 weeks after the accident, the bruising and swelling had subsided, and Bird ordered different medication that would not upset Smith’s stomach.
Bird referred Smith to Dr. Bradley Bruner, who diagnosed possible ligament and cartilage damage. He also prescribed medication in addition to physical therapy. Subsequent examinations revealed continuing pain. Bruner testified it was probable that Smith would someday need to have orthoscopic surgeiy, costing between $8,000 and $10,000. Bruner’s opinion was that Smith’s knee condition was caused by the collision with Fisher’s vehicle. Bruner diagnosed Smith as suffering from a 3% permanent disability in both knees. He also testified on cross-examination that it would not be unusual for plumbers or people who spend a lot of time working on their knees to develop similar problems.
The jury found Fisher to be 90% responsible for the accident and Smith 10% responsible. The jury awarded medical expenses to Reid as stipulated by the parties in the amount of $940.47. This was the only award to Reid. The jury awarded damages to Smith as follows: (1) noneconomic loss to date—$15,000; (2) future noneconomic loss—$0; (3) economic loss to date—$293.76; (4) medical expenses to date—$1,684.60; and (5) future medical expenses—$0. The district court entered judgment in Smith’s favor for $15,280.52.
Fisher objected to the journal entry, claiming Smith did not meet the threshold requirements set out in K.S.A. 40-3117 for recovering noneconomic losses. The district court ruled that Smith met the threshold requirement by his “proof of permanent loss of bodily function relying on the testimony of Dr. Bruner of a 3-percent disability in each knee. The statute clearly provides for that. It’s a matter for determination by the jury.”
Fisher contends the district court erred as a matter of law in entering a judgment against her for 90% of the $15,000 the jury awarded for past noneconomic loss. She claims the judgment was not permitted under K.S.A. 40-3117. An appellate court’s standard of review on questions of law is unlimited. NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 386, 996 P.2d 821 (2000).
K.S.A. 40-3117 is part of the Kansas Automobile Injury Reparations Act. The statute sets out the conditions precedent to recovering damages for pain and suffering in tort actions:
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of $2,000 or more, or the injuiy consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least $2,000.” K.S.A. 40-3117.
Fisher argues Smith did not suffer an injuiy requiring medical treatment having a reasonable value of $2,000 or constituting any of the injuries listed in the statute.
Smith concedes he did not meet the $2,000 medical treatment threshold. His contention is that he suffered a permanent disability, falling under the “permanent loss of a bodily function” provision of K.S.A. 40-3117. Smith’s counsel stated at the hearing on the motion to settle the journal entry, “What we’re relying on is permanent injury. He had permanent injuiy. There’s testimony he had 3-percent disability in both knees. That’s what we’re relying on.”
Smith argues, and the district court accepted as a basis for its decision, that the jury made this determination based on Bruner’s testimony that he suffered from a permanent 3% disability in both knees.
It does not appear that any Kansas cases have addressed the meaning of “permanent injury within reasonable medical probability.” Miller v. Miller, 25 Kan. App. 2d 29, 31, 955 P.2d 635 (1998). Cases have indicated, however, that permanent injuries must be serious or significant to meet the requirements of the statute, and in close cases, the seriousness or significance issue may be submitted to a jury. 25 Kan. App. 2d at 31-32. In Miller, permanent vitreous floaters in the left eye were held to establish a prima facie case of “permanent injury” within the meaning of K.S.A. 40-3117. A 3% permanent disability in both knees probably does constitute a permanent injury. Our difficulty here is that neither Smith, Fisher, nor the district court thought to ask the jury in the instructions whether Smith had suffered a permanent injury.
The requirements of K.S.A. 40-3117 are conditions precedent that must be met by the plaintiff before noneconomic damages may be recovered, not an affirmative defense the defendant is required to raise prior to trial. Stang v. Caragianis, 243 Kan. 249, 251, 757 P.2d 279 (1998). If there is any disagreement on the issue of whether the conditions of K.S.A. 40-3117 have been met, there should generally be appropriate instruction to the jury to resolve the issue.
From the verdict here, it is not clearly provable that the jury thought there was a permanent injury, as it found no future noneconomic loss, nor any further medical expenses. Smith contends the fact of permanent injury was really not seriously contested. We agree that there was substantial competent evidence to support a finding of permanent injury and little was presented to refute the contention. It is also clear that Fisher made no effort to prevent the jury from considering the question of noneconomic damages without a finding of permanent injury. But we must determine whether the failure to get a jury finding on the issue of permanent injury hopelessly compromises the award of noneconomic damages and requires a retrial on the issue.
Under these facts, had Fisher asked for an instruction on the threshold issue and been denied, we would be dealing with a very difficult decision. However, the situation here appears more akin to leading or luring the trial court into error and then complaining of the result. See Hawkinson v. Bennett, 265 Kan. 564, 590, 962 P.2d 455 (1998); Boucher v. Roberts, 187 Kan. 675, Syl. ¶¶ 1, 2, 359 P.2d 830 (1961).
We do not know why instructions were not given on the threshold issue of permanent injury. Perhaps it eluded attention because there is not yet a PIK instruction on it. In any event, although the evidence in favor of permanent injury was not overwhelming, it was substantial. Admittedly, while the verdict is not a ringing endorsement of the contention that there was permanent injury, neither does it foreclose that possibility.
Since Fisher allowed the issue to go to tire jury in the form she now complains of, we are loath to grant a new trial on the issue. As that incomparable judicial wordsmith Justice John Fontron noted in State v. Earsery, 199 Kan. 208, 213, 428 P.2d 794 (1967): “It is probable that no experience is more frustrating to a court than the retrial of somebody’s lawsuit. The sensation is somewhat akin to dining on yesterday’s cold mashed potatoes.”
In a civil matter such as this, basing a request for a new trial on the failure to give an instruction that was not requested must be viewed with some skepticism. A resolution of the question must be based on the needs of justice and the individual facts of the case.
In the instant case, Fisher allowed the issue of damages to go to the jury without requesting an instruction on the threshold issue. There was substantial competent evidence to support a finding of permanent injury. It does not appear that a request was made for a new trial on the basis that the instructions were fatally flawed. The trial court, which had the best opportunity to gauge the proceedings, obviously saw no miscarriage of justice occurring. The trial court was not requested to make a judgment on the issue. We find, on these facts, that a reversal and retrial are not called for.
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Beier, J.:
Santiago Aldaba, Jr., appeals his jury trial conviction for aggravated criminal sodomy.
Aldaba raises five issues: (1) Should the district court have instructed the jury on the lesser included offense of attempted aggravated criminal sodomy? (2) Did the district court err by admitting K.S.A. 60-455 evidence when the State failed to give timely notice? (3) Did the district court abuse its discretion by admitting evidence of defendant’s prior sexual acts with a second child to show plan and identity? (4) Did the district court abuse its discretion by denying defendant’s motion for mistrial after the second child testified at trial that he was a victim of aggravated criminal sodomy rather than the inappropriate touching and attempted sodomy that he was expected to describe? (5) Did the district court err by allowing the State to call a rebuttal witness without giving prior notice to the defense?
The alleged victim in this case, 6-year-old I.V., told his 12-year-old cousin L.D. that Aldaba, a relative, had touched I.V.’s “butt” and stuck his penis into I.V.’s mouth while in the living room of I.V.’s grandfather’s house. L.D. told I.V. to tell his mother and his older brother. I.V. then told the brother that Aldaba had tried to make him put his mouth on Aldaba’s “dick” when Aldaba came to visit the previous summer. I.V. was shaking and crying during this discussion and said he had not told anyone before because Aldaba had told him he would kill him. L.D. then came into the room, started crying, and said Aldaba had “tried to do the same thing to him” in Chicago.
The initial police report filed by Officer Diaz after interviewing I.V. said that Aldaba had attempted to have oral sex with I.V., but I.V. refused and ran into a bathroom. This report was characterized at trial as a summary and not a “word-for-word” transcript of what I.V. told Diaz. I.V. later told a different officer that Aldaba was sleeping by him at his grandpa’s house and that Aldaba grabbed his head and made him suck on Aldaba’s penis. I.V. also said he pushed Aldaba away, but Aldaba grabbed him by the leg.
After Aldaba was charged, he filed a notice of alibi defense in accordance with K.S.A. 22-3218. The State filed no notice of its intent to use I.V.’s sister as an alibi rebuttal witness. The State did file a K.S.A. 60-455 motion seeking to admit evidence that Aldaba inappropriately touched and attempted to commit oral sodomy on L.D., arguing that it was relevant to identity and plan. The defense opposed the motion as untimely. The district court noted that the motion failed to abide by an apparently unwritten local rule requiring such motions to be filed at least 5 days before trial but nevertheless granted the motion.
At trial, I.V. testified that the defendant had put his “wiener” in I.V.’s mouth at his grandpa’s house, but he said that it happened upstairs in his room when it was daylight.
L.D. testified at trial that the defendant had slept in the living room of the grandfather’s house with I.V. He also testified that the defendant had touched L.D.’s “butt” four times. When the prosecutor asked L.D. if the defendant had ever tried to do anything to him like what had been done to I.V., L.D. said the defendant had put his penis in L.D.’s mouth as well when he was visiting the defendant out of state. This testimony, at the next break in the evidence, prompted a defense motion for mistrial based on unfair surprise. The district court denied the motion, finding that all parties were surprised by L.D.’s testimony about the completed act of sodomy.
I.V.’s and L.D.’s trial statements conflicted in some of their particulars with the testimony of Detective Kevin Bradford, who had interviewed both of the boys pretrial. Bradford testified regarding the initial interview of I.V., in which I.V. said that Aldaba had tried to commit sodomy but that I.V. had escaped to a bathroom. He also testified that, in a later interview, I.V. had told him the sodomy happened in the kitchen rather than the living room of his grandfather’s house. Bradford also testified that L.D. had told him the defendant grabbed L.D. and attempted unsuccessfully to commit sodomy.
The defense called several of defendant’s other relatives and one unrelated person as alibi witnesses, all of whom said the defendant stayed somewhere other than I.V.’s grandfather’s house the night of the alleged sodomy on I.V. In addition, the defendant denied all of the allegations made by I.V. and L.D.
After the defense rested, the State called I.V.’s 14-year-old sister as a rebuttal witness. She testified that the defendant had a conversation with her about where she was going to sleep on the night in question and that he slept in the living room of the grandfather’s house with I.V. The defense objected to lack of notice of this testimony. During an ensuing bench conference, the prosecutor divulged that she became aware of the sister’s ability to rebut the alibi defense a couple of days to a week before trial. Although this knowledge was not shared with the defense, the district judge overruled defense counsel’s objection to admission of the sister’s testimony.
The defendant did not request a jury instruction on the lesser included offense of attempted aggravated criminal sodomy.
Lesser Included Offense
Defendant first argues the district court erred by failing to instruct the juiy on the lesser included offense of attempted aggravated criminal sodomy, because two witnesses testified that I.V. said the defendant only “tried” to commit the crime. These witnesses were the older brother and the investigator who took I.V.’s initial statement. Because the defense did not object to the absence of the lesser included offense instruction, we must find that the absence was “clearly erroneous” before Aldaba would be entitled to reversal on this issue. See K.S.A. 2000 Supp. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Although I.V.’s version of what Aldaba did to him ultimately included a completed rather than an attempted sodomy, we agree that his inconsistent accounts could have supported conviction on the lesser included offense of attempt instead. We are not, however, firmly convinced that there is a real possibility the jury would have rendered a different verdict if the lesser included instruction had been given. Both I.V. and L.D. overcame their initial reluctance to tell the whole story, a reluctance jurors would regard as normal under the circumstances. Their testimony against defendant was graphic, more so than it would have been if the attempts at oral sodomy had been unsuccessful. The defendant is not entitled to reversal on this issue.
Timeliness of Notice ofKS.A. 60-455 Evidence
Defendant argues the district court erred by allowing L.D. to testify to prior crimes under K.S.A. 60-455, asserting that the State’s notice of its intention to use L.D. was untimely under local rule.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The district court found that the local notice rule was violated by 1 day but that no prejudice resulted. We review this decision for an abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
L.D. had been listed as a witness at the time the State filed the complaint, and the defense was given a copy of his pretrial statement. The initial report filed by Diaz stated that L.D. had said Aldaba did the same thing to him that he did to I.V., which, according to the record; is the most warning either side received of his trial testimony regarding an earlier completed act of sodomy. We see no abuse of discretion in the district judge’s decision that a 1-day delay in the State’s K.S.A. 60-455 motion was not fatal.
Admission of Prior Crimes Evidence to Show Plan, Identity
Three requirements must be satisfied for evidence to be admitted under K.S.A. 60-455: The evidence must be relevant to prove one of the facts specified in the statute; the fact must be a disputed, material fact; and the probative value of the evidence must outweigh its potential prejudice. State v. Tiffany, 267 Kan. 495, 498, 986 P.2d 1064 (1999) (quoting State v. Nunn, 244 Kan. 207, 211, 768 P.2d 268 [1989]). “If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether the district court abused its discretion.” Tiffany, 267 Kan. 495, Syl. ¶ 2.
Relying on State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), defendant first argues the admission of evidence of sexual misconduct between defendant and L.D. was improper to show plan because no direct or causal connections existed between the conduct with L.D. and the conduct with I.V., and sufficient evidence was not produced at trial to establish the similarity between the two incidents.
As in this case, the defendant in Damewood denied all allegations of sexual activity with the victim and argued on appeal that evidence he had engaged in similar acts with another victim was improperly admitted to show intent and plan. The Damewood court recognized two theories under which evidence could be admitted under 60-455 to show plan:
“In one the evidence, though unrelated to the crimes charged, is admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.
“The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]
“Another line of cases has held evidence of prior crimes or acts is admissible to show plan where there is some direct or causal connection between the prior conduct and the crimes charged.” 245 Kan. at 681-82.
In Damewood, the court found the perpetrator s method in each incident “strikingly similar.” Both victims were employed by defendant in his beekeeping operation; each was a young teenager; and the sexual acts that formed the basis of the charges were similar. 245 Kan. at 678-80.
More recently in Tiffany, the defendant was convicted of aggravated indecent liberties for making a 7-year-old girl masturbate him. At trial, the district court admitted K.S.A. 60-455 evidence that the defendant had engaged in similar acts of masturbation with other children, some of whom were close in age and the same gender as the victim at issue. That defendant, like Aldaba, also denied that the activity had ever occurred. The Kansas Supreme Court upheld the admission of the evidence, finding a “strikingly similar” method of operation. 267 Kan. at 500-02. Specifically, the court found it relevant that the defendant used similar words to entice the victims, that the victims were about the same age, and that the criminal conduct was performed in the same manner. 267 Kan. at 500.
As in Damewood and Tiffany, the children’s accounts are “strikingly similar” here. Both I.V. and L.D. were young boys when they were molested. In both incidents the perpetrator forced his penis into the child’s mouth. Both incidents were alleged to have occurred when the defendant was staying in the same residence with the victim overnight. Each victim was threatened with bodily harm if the abuse was revealed.
As Aldaba denied the sexual abuse occurred, all of the facts necessary to proving aggravated criminal sodomy were disputed, and evidence that defendant had committed the same act on I.V.’s 12-year-old cousin was relevant to prove his plan when targeting I.V. The similar conduct in both cases is “a common approach that is tantamount to a plan.” Tiffany, 267 Kan. at 502 (quoting State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 [1992]).
Defendant also argues the prior crimes evidence was irrelevant to identity, because the State failed to establish a similarity between the crimes committed against L.D. and I.V.
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both crimes. [Citation omitted.] Similarity must be shown in order to establish relevancy. [Citation omitted.] It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses.” [Citation omitted.] State v. Lane, 262 Kan. 373, 389, 940 P.2d 422 (1997).
In Lane, defendant was convicted of aggravated kidnapping, rape, and first-degree murder of a 9-year-old female who had disappeared while on an errand. The district court admitted evidence of defendant’s prior conviction for the abduction, sexual assault, and murder of an 8-year-old girl to show, among other things, identity. On appeal, defendant argued the district court erred by admitting this evidence.
Our Supreme Court first noted that identity was a material fact in the death of the victim because the defendant testified that he was not involved in her death. The court went on to note the similarity in the deaths of both victims: They were both young females, had nearly identical weights, were abducted from residential areas and taken to rural areas, were physically and sexually assaulted and strangled, and were stripped of their panties. In each case, the defendant acted in concert with someone else. The court concluded that these similarities were sufficient to allow the admission of the prior conviction to show who had killed the victim. 262 Kan. at 389-90. We reach the same conclusion here.
We acknowledge that this evidence was highly prejudicial to the defendant’s case. Such evidence always is. However, in light of defendant’s total denial and the substantial similarity between the boys’ accounts, we agree with the district judge that the probative value of the evidence outweighed its prejudicial effect. In addition, the district court reduced the possible prejudice to the defendant by giving an appropriate limiting instruction. There was no abuse of discretion on this issue, and the resulting jury instruction was proper.
Mistrial Based on Surprise Testimony
Defendant next argues the district court abused its discretion by failing to grant a mistrial when L.D. surprised everyone with his testimony of a completed sodomy perpetrated on him by Aldaba.
“A trial court may declare a mistrial if prejudicial conduct makes it impossible to proceed with the trial without injustice to either the prosecution or the defense. K.S.A. 22-3423(l)(c). A trial court’s ruling on a motion for mistrial will not be disturbed absent a clear showing of abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion. [Citation omitted.]” State v. Rodriguez, 269 Kan. 633, 640, 8 P.3d 712 (2000).
K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
The State’s pretrial motion under K.S.A. 60-455 sought leave to introduce evidence only that Aldaba had inappropriately touched and attempted to commit sodomy on L.D., not fhat he had succeeded in doing so. There is no question that the defense was surprised at trial with the testimony of the completed act, although defense counsel waited for a break to lodge an objection and seek a mistrial. At that point, the prosecutor asserted that the testimony came as a surprise to her too, and the district judge noted that no one appeared to expect L.D. to testify as he did.
While L.D.’s testimony may have gone beyond what was outlined in the K.S.A. 60-455 motion, we do not believe the defendant has shown substantial prejudice as a result. The defense knew L.D. had made previous allegations of improper sexual conduct, and the nature of that conduct did not change. Further, defense counsel was still able to point out inconsistencies in L.D.’s stoiy on cross-examination, highlighting his failure to tell the police about the completed sodomy during a previous interview. The district judge’s decision to deny the motion for mistrial was not an abuse of discretion.
Notice of Alibi Rebuttal Witness
Defendant argues the district court committed reversible error by allowing the State to call I.V.’s 14-year-old sister to testify in opposition to his alibi, because the State violated the notice provision in K.S.A. 22-3218.
K.S.A. 22-3218(2) provides in relevant part:
"Within seven days after receipt of the'names of defendant’s proposed alibi witnesses, or within such other time as is ordered by the court, the prosecuting attorney shall file and serve upon the defendant or his counsel the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the case. Both the defendant and the prosecuting attorney shallbe under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided by this section so that reciprocal discovery rights are afforded both parties.”
Defense counsel filed a notice of alibi defense approximately 1 month before the commencement of trial. The State did not file a response. When defense counsel objected to the sister’s testimony as a discovery violation at trial, the prosecutor admitted she had learned of the sister’s ability to testify on this subject a couple of days to a week before trial. In addition, the prosecutor had already twice denied that she planned to call witnesses not already endorsed—once in response to the district judge’s question about last-minute endorsements during a break from voir dire and once after voir dire had been concluded and before opening statements had begun.
On these facts, the State’s violation of K.S.A. 22-3218 could hardly be more obvious. The prosecutor inexplicably passed up multiple opportunities to inform the court and opposing counsel of her intention to use I.V.’s sister to rebut Aldaba’s alibi defense.
Our standard of review is well settled when the defense is the party that fails to abide by the notice provision in K.S.A. 22-3218. In such cases, “[t]he exclusion of alibi testimony because of noncompliance with the notice requirements of K.S.A. 22-3218 is within the trial court’s discretion.” State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 (1997). We see no reason that a different standard should govern our examination of the opposite situation— in which a district court has allowed testimony to rebut a defendant’s alibi despite the State’s failure to give the notice required by the statute.
In Claiborne, the defendant attempted to call an alibi witness without giving notice under K.S.A. 22-3218, arguing the State was nevertheless aware of the possible witness. The trial court excluded the evidence for failure to comply with the statute.
On appeal, Claiborne argued the trial court abused its discretion by failing to follow State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981), which outlined the general factors a court should weigh when determining whether a witness previously undisclosed by a criminal defendant will be permitted to testify at trial. Under Bright, a court should consider: the reason the witness was not disclosed; when the witness became known to the defense; the trivial or substantial nature of the proposed testimony and the issue it addresses; the extent of the prejudice to the State and die importance of the witness to the defendant; the feasibility of a recess to ameliorate prejudice; and any other relevant facts. In addition, Bright urged courts to avoid imposing the severe sanction of disallowing the testimony if at all possible. That sanction “should be viewed as a last resort.” 229 Kan. at 194. The Claiborne court noted that the Brigfot rationale applied when the undisclosed witness in question would testify in support of defendant’s alibi. 262 Kan. at 424 (quoting State v. Douglas, 234 Kan. 605, 607-08, 675 P.2d 358 [1984]). It then concluded that the trial court did not abuse its discretion in excluding defendant’s alibi witness.
As our standard of review goes, so goes our substantive analysis. We see no reason to alter the pattern set in Bright and Claiborne when the statutoiy violation has been committed by the State rather than the defense. Fairness dictates otherwise. Thus a district court’s discretion to permit or exclude previously undisclosed alibi rebuttal testimony is limited by the Bright factors. Although it ap pears from the record here that the trial judge considered some of these factors, others were apparendy ignored. We hold that this was an abuse of discretion.
Applying all of the Bright factors to this case, the prosecutor gave no reason for failing to abide by her continuing duty of disclosure under the statute. She admitted that she learned of the sister’s ability to testify in opposition to Aldaba’s alibi 2 days to a week before trial, yet she took no action before reaching the courtroom. Once there, she twice told the court in response to direct questions that she did not plan to use witnesses she had not previously disclosed. The sister’s testimony was not trivial, in view of the youth of the only two other witnesses who placed Aldaba at the scene and the demonstrated inconsistencies in their stories. The potential prejudice to the defendant from the older sister’s testimony was great and the issue addressed far from minor; without her testimony, the two boys were lined up against a parade of adults who uniformly testified that Aldaba slept elsewhere on the night in question. The record discloses no effort by the court to ameliorate the prejudice suffered by Aldaba with a continuance or recess to permit his counsel to conduct appropriate discovery. In spite of Bright’s admonition to avoid exclusion of testimony if possible, we conclude that the district court’s abuse of discretion in fading to apply all of the Bright factors led it to erroneous admission here.
This does not end our inquiry, however. We may find even federal constitutional error harmless if we are willing to declare that it was harmless beyond a reasonable doubt or that it had little likelihood of having changed the result of the trial. State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 (2000). This error must be reviewed under this standard, because the discovery provisions of K.S.A. 22-3218 implicate Aldaba’s Fourteenth Amendment due process rights. See Talley v. State, 222 Kan. 289, Syl. ¶¶ 1, 2, 564 P.2d 504 (1977).
Given I.V.’s and L.D.’s evident inconsistency and/or reluctance on several details of their testimony and the multiple related and unrelated witnesses testifying in favor of Aldaba’s alibi, we believe the sister’s testimony was potentially crucial. We cannot declare its erroneous admission harmless beyond a reasonable doubt; under these circumstances, it had more than a little likelihood of changing the result. Reversal is required.
Given the analysis of the issues set forth above, we do not address Aldaba’s final claim of cumulative error.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Beier, J.:
Damone Lee Cribbs appeals his jury convictions for attempted second-degree murder and criminal possession of a firearm and his sentence on the attempted second-degree murder charge. He takes issue with two jury instructions, the sufficiency of the evidence on criminal possession of a firearm, the voluntariness of his statements to police, and his sentence’s compliance with the Eighth Amendment prohibition of cruel and unusual punishment.
This case arose out of a bloody confrontation just after midnight on New Years Day 1999 between Cribbs and Angela Jones, a woman with whom he had been living. Jones’ three children and one grandchild also lived in the same apartment.
Patrick Hert, who was living one floor up in the same apartment building at the time, testified that Jones knocked on his door after a midnight celebration of the new year. She dropped a bag of clothes on the floor and left. About 10 minutes later, Hert heard sounds of wrestling followed by three gunshots coming from the hall. When he investigated, he saw Jones lying on the second floor landing with blood around her head.
Jones’ son, Dwight, testified that he had seen Cribbs shooting a gun at the New Year’s celebration outside their apartment, and he had not seen Jones doing likewise. After Cribbs left and Dwight went inside, Jones received a phone call. Dwight heard Jones say, “[M]other F’er, you’re playing me” and telling the person to whom she was speaking that she would throw his clothes out. Dwight testified that his mother then took Cribbs’ clothes upstairs.
Dwight also testified that he saw Cribbs shoot his mother. He said Cribbs passed Jones on the stairs and knocked on a door and said, “[M]other F’er, give me my stuff and take it back down there.” When Jones said no, Cribbs pulled a gun out of his pocket, pointed it at her, and said, “[M]other F’er, I’ll shoot you.” Jones replied, “No, you won’t,” and Cribbs shot her, causing her to fall over the rail and to the ground. Dwight also testified that there were three shots. Cribbs then dropped the gun, walked halfway to the door, went back to grab the gun, and ran out of the building. Dwight ran back into the apartment and called his uncle and told him that Cribbs had shot his mother. His uncle verified the fact of this phone conversation during his testimony at trial.
Cribbs took the stand in his own defense. He testified he spent most of New Year’s Eve drinking and “doing” marijuana and cocaine. He returned to the apartment he shared with Jones and the children about 11 p.m., and he, Jones, Dwight, and one of the other children went outside to shoot a gun with other people doing the same. He said that, when he returned to the apartment about 1 a.m., he saw the gun on a dresser and told Jones she needed to put it away. He then left again to talk with one of the children. When he returned, he ran into Willie Brownlee. Brownlee told him Jones was cussing about him leaving and had a gun in her pocket.
Cribbs said he then saw Jones standing at the top of the stairs with a gun in her hand. He rushed her to get the gun out of her hand, and both of them slammed against the walls in the process. He then tried to throw her down the stairs to break her grip on the gun and kept himself from falling with her by using his foot. When he finally was able to grab the gun from her, it went off. Jones then fell down the stairs. Cribbs ran out of the building and drove away when he saw Jones lying in a puddle of blood.
Police found four apparently fresh bullet holes at the scene. Detectives Randall Eskina and Richard Nepote and Officer Christopher McAlister all testified that three of the holes were consistent with a gun being fired by someone lower on the stairs shooting upward.
Cribbs’ amended information contained a first count of attempted first-degree murder and a second count of criminal possession of a firearm. The second count included the following language:
“[0]n or about the 1st day of January, 1999, one Damone L. Cribbs did at and within the above named county and state unlawfully, feloniously, knowingly and willfully possess a firearm, having been released from imprisonment within the preceding 5 years of a felony, to wit: Attempted Aggravated Assault, in violation of K.S.A. 21-3410, and in the case leading to said earlier conviction was found to have used a firearm during the commission of the crime, all in violation of K.S.A. 21-4204. (Criminal Possession of a Firearm, Severity Level 8, Non-person Felony.)”
Police arrested Cribbs approximately a week after the crimes at his cousin’s home in Missouri. Cribbs said he had spent the morning of his arrest until about 10 minutes before the officers arrived smoking marijuana and freebasing crack cocaine. Cribbs said he was still high and jittery while talking to officers, “having illusions of what was going on in my mind as far as the situation that they was talking to me . . . about.” He remembered signing something but said he did not know what he had signed. He also testified that he had wanted to wait to tape record his statement until he was in Kansas, but detectives told him they could not wait. Cribbs was able to remember certain other details of the day and the interview, including the fact that officers who came to the door were with the Apprehension Unit.
One of the officers who took Cribbs’ statement testified that he went over an advice of rights and waiver form with Cribbs before it was signed. He also said that, although Cribbs stuttered when he got nervous and cried during part of the interview, he appeared to be sober, was not glassy eyed, did not slur his speech, and had normal balance. The detective did not smell any intoxicants, ánd Cribbs did not admit to any drug use. that day. According to the detective, Cribbs did not say that he wanted to give his statement in Kansas, did not request a lawyer, and did not say he did not understand the questions.
The district court denied Cribbs’ motion to suppress his statement, concluding it was voluntary, willful, and knowing.
At trial, the defense did not object to the jury instructions given on attempted first-degree murder or on the lesser included offenses of attempted second-degree murder, attempted voluntary manslaughter, and aggravated battery.
The attempted voluntary manslaughter instruction read:
“If you do not agree that the defendant is guilty of the crime of an attempt to commit the crime of murder in the second degree, you should then consider the lesser included offense of an attempt to commit the crime of voluntary manslaughter.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant performed an act toward the commission of the crime of voluntary manslaughter.
“2. That the defendant did so with the intent to commit the crime of voluntary manslaughter;
“3. That the defendant failed to complete commission of the crime of voluntary manslaughter; and
“4. That this act occurred on or about the 1st day of January, 1999, in Wyandotte County, Kansas.
“The elements of voluntary manslaughter are as follows:
“1. That the defendant intentionally killed Angela Jones,
“2. That it was done upon a sudden quarrel or in the heat of passion; and
“3. That this act occurred on or about the 1st day of January, 1999, in Wyandotte County, Kansas.”
The instruction on criminal possession of a firearm read:
“In Count II, for a further, different and second count herein, the defendant is charged with criminal possession of a firearm. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly had possession of a firearm;
“2. That the defendant had been convicted of attempted aggravated assault, a person felony; and
“3. That this act occurred on or about the l[st] day of January, 1999, in Wyandotte County, Kansas.”
After Cribbs’ convictions, the district judge denied Cribbs’ motion seeking to replace the attempted second-degree murder conviction with a conviction of attempted voluntary manslaughter.
Cribbs also filed a motion for a downward departure in sentencing, arguing that the presumptive sentence for attempted second-degree murder constituted cruel and unusual punishment. The district judge denied the motion and sentenced Cribbs to concurrent terms of 340 months and 8 months on the two convictions.
Jury Instruction on Attempted Voluntary Manslaughter
Defendant argues that the attempted voluntary manslaughter instruction was clearly erroneous because it shifted the burden to the defense to prove that the shooting happened in the heat of passion or a sudden quarrel. Defendant also contends the district judge failed to give the proper PIK instruction for situations when attempted voluntary manslaughter is a lesser included offense. “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Cribbs’ instruction on attempted voluntary manslaughter was based in part on Alternative A of the voluntary manslaughter instruction in PIK Crim. 3d 56.05. The Notes on Use for this instruction state: “When voluntary manslaughter is submitted to the jury as a lesser offense of the crime charged under K.S.A. 21-3107(2)(a), use alternative B.” Alternative B differs from the modified Alter native A used here because it would have instructed the jury to consider the possibility of convicting on the lesser included offense as it deliberated on the greater. It reads in pertinent part:
“In determining whether the defendant is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done (upon a sudden quarrel) (in the heat of passion) ....
“If you decide the defendant intentionally killed,-, but that it was done (upon a sudden quarrel) (in the heat of passion) . . . the defendant may be convicted of voluntary manslaughter only.” PIK Crim. 3d 56.05.
The district court erred by employing Alternative A rather than Alternative B. In essence, Cribbs’ jury was told that it need not bother considering attempted voluntary manslaughter unless and until it failed to agree on his guilt of attempted second-degree murder. It may never have fully analyzed whether the shooting was the product of heat of passion or a sudden quarrel, the factors that distinguish the greater and the lesser crimes and the reasons they require simultaneous deliberation when the evidence could support either.
The next question is whether 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. The State urges us to focus on the additional instruction telling Cribbs’ juiy: “When there is a reasonable doubt as to which of two or more offenses the defendant is guilty, he may be convicted of the lesser offense only.” In our view, however, this instruction was insufficient to cure the error, because it still made any consideration of attempted voluntary manslaughter contingent on the juiy’s prior inability to convict on attempted second-degree murder. On the facts of this case, especially those regarding Cribbs’ and Jones’ relationship and quarrel, this basic reordering of the jury’s decision-making process merits the “clearly erroneous” label and requires reversal of the attempted second-degree murder conviction.
Jury Instruction on Criminal Possession of Firearm
Cribbs attacks this instruction on two fronts. First, he contends the district court lacked jurisdiction because the information charged a nonexistent form of the crime; thus the instruction should have been omitted. Second, he contends that, even if the information was sufficient, the court instructed the jury on a version of the crime different from the one charged in the complaint.
In Roach v. State, 27 Kan. App. 2d 561, 7 P.3d 319, rev. denied 270 Kan. 899 (2000), this court considered the sufficiency of an information to confer jurisdiction in an aggravated robbery case. In Roach, the charging document did not include language that the property was taken by force or threat of bodily harm. In finding the court had jurisdiction, this court first noted the following holding of our Supreme Court:
“ ‘The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. [Citations omitted.]’ ” 27 Kan. App. 2d at 567 (quoting State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 [1999]).
In Roach, the defendant had not alleged that he was less than fully informed of the charges or that the factual allegations were insufficient to support his conviction. The court found the requirement that the charging document include all of the elements of the offense was satisfied by its factual allegations, including a necessary implication that force or fear was employed through the use of a dangerous weapon. The court also was persuaded that no one would have had a doubt as to which crime the State was charging. 27 Kan. App. 2d at 566-68.
K.S.A. 2000 Supp. 21-4204(a)(2) defines criminal possession of a firearm in relevant part as “possession of any firearm by a person who has been convicted of a person felony . . . and [who] was found to have been in possession of a firearm at the time of the commission of the offense.” K.S.A. 2000 Supp. 21-4204(a)(3) outlines another form of the same crime: “[Possession of any firearm by a person who, within the preceding five years has been convicted of a felony . . . and was found not to have been in possession of a firearm at the time of the commission of the offense.”
Cribbs is correct that the second count of his information appears to have combined elements from K.S.A. 2000 Supp. 21-4204(a)(2) and (a)(3). All of the elements of (a)(2) are present except that the prior crime is not explicitly described as a “person” felony. This does not trouble us, however, because its “person” classification is obvious from its name: attempted aggravated assault. The language “within the preceding 5 years” is mere surplusage. Cribbs does not contend—and could not contend successfully—that the State failed to inform him of the charge against him. Under Smith, the information contained the elements of the offense intended to be charged, sufficiently apprised the defendant of what he must be prepared to meet, and was specific enough to malee a subsequent plea of double jeopardy possible.
Cribbs’ second argument regarding the instruction on criminal possession of a firearm is that it improperly omitted the element “[tjhat the defendant was found to have been in possession of a firearm at the time of the commission of the prior (person felony)” found in the 1999 version of PIK Crim. 3d 64.06. Again, because there was no defense objection, we must find the instruction was clearly erroneous before reversal would be warranted. State v. Duke, 256 Kan. 703, Syl. ¶ 7, 887 P.2d 110 (1994).
Defendant stipulated to his identity in the prior crime, and he did not dispute the State’s evidence that he had been convicted of an attempted aggravated assault during which he used a gun. Under these circumstances, any omission in the instruction was not “clearly erroneous.”
Sufficiency of the Evidence
Cribbs next questions the sufficiency of the evidence to support his criminal possession of a firearm conviction. Specifically, he alleges there was no evidence that his prior crime involved use of a gun.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Terra Morehead, a Wyandotte County assistant district attorney, testified that Cribbs was convicted of attempted aggravated assault and criminal possession of a firearm in 1996 and that the assault was committed with a .357 Magnum revolver. This evidence supported Cribbs’ firearm conviction in this case.
Voluntariness of Statement
Cribbs’ final argument on appeal is that he was entitled to suppression of his statement to police because it was involuntary. He points to the evidence that he was under the influence of alcohol and drugs at the time of his interrogation.
“Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence.” State v. Hedges, 269 Kan. 895, 908, 8 P.3d 1259 (2000).
“ ‘The-fact that an accused had been drinking and using drugs does not per se establish involuntariness.’ ” State v. Norris, 244 Kan. 326, 334-35, 768 P.2d 296 (1989) (quoting State v. Baker, 4 Kan. App. 2d 340, 343, 606 P.2d 120 [1980]).
Here, under the totality of the circumstances, substantial competent evidence supported the district court’s finding of voluntariness. The detective conducting the interrogation testified Cribbs appeared to be sober, was not glassy eyed, did not slur his speech, and had normal balance. The officer did not smell alcohol. Furthermore, Cribbs told primarily the same version of events he later testified to at trial and he remembered details that would have escaped a person made senseless by intoxicants.
Eighth Amendment
Cribbs’ Eighth Amendment issue regarding his sentence on the attempted second-degree murder conviction is moot in view of our reversal of that conviction.
Affirmed in part, reversed in part, and remanded for a new trial on no greater charge than attempted second-degree murder. See K.S.A. 21-3108(l)(c); State v. Carpenter, 228 Kan. 115, 117, 612 P.2d 163 (1980) (finding defendant cannot be tried second time upon greater than the underlying conviction in first trial). | [
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Beier, J.:
Mercy Health System of Kansas, Inc., (Mercy) appeals the ruling of the Board of Tax Appeals (BOTA) denying it an exemption from ad valorem taxation for a rehabilitation center. To resolve the appeal, we must evaluate BOTA’s interpretation and application of K.S.A. 2000 Supp. 79-201 Ninth, which provides a tax exemption for property used in the delivery of certain humanitarian services.
Mercy, a nonprofit corporation, applied for an exemption for its free-standing rehabilitation center, which it had moved from its hospital in Fort Scott to a downtown building with additional space and improved accessibility. The center employs, among others, an exercise physiologist, a physical therapist, a massage therapist, an occupational health physician who treats workers compensation injuries, an osteopath who delivers manipulative therapy, and a physician who does cardiac rehabilitation.
The center also provides a “Fitness Zone,” essentially a fee-based health club for members of the public who are permitted to use the center’s fitness equipment before and after office hours. The membership fee is $30 per month for a family. At the time of the hearing, there were 82 memberships, and 30 of them were held by hospital employees. Some of the remaining 52 were held by former rehabilitation outpatients of the center who wanted to follow up on their therapy. Because of space and time limitations, the Fitness Zone can increase its total membership only by 10 percent. Each member of the Fitness Zone is required to undergo a health evaluation before exercising, and a physical therapist is present at all times when members are using the equipment.
The massage therapist at the center offers massages and various body wraps. Although these are not the types of services that a physician would prescribe, Dr. David Phelps testified that they are forms of alternative medicine requested by the community. Dr. Phelps was aware of one other business that offered massage services in the downtown area, and Mercy’s counsel acknowledged that there were two other health clubs in the market.
Fitness Zone memberships account for 2.34 percent and massage therapy for 1.61 percent of the total gross revenue of the center, which was $798,037 in the fiscal year reviewed. Those figures reflected only 9 months of operation for the massage therapist.
BOTA made the following findings in denying Mercy’s application:
“9. The applicant asserts the Rehabilitation Center offers the public an alternative to the free weights found at a typical health center. The applicant further asserts any revenues derived or use of the property by the general public is minimal in scope and insubstantial in nature. The applicant requests the exemption be granted pursuant to K.S.A. 79-201 Ninth, and amendments thereto.
“10. [Bourbon] County recommends the request for an exemption be denied. The County asserts the applicant offers services that are no different than those offered by a private, for-profit health club or fitness center. The County notes that the applicant is unable to demonstrate that the fitness center memberships, the massages, and body wraps somehow aided the applicant in providing rehabilitation services to its patients. The County also notes that [Dr.] Phelps testified that an individual was hired to perform the massages and body wraps. However, this person is not involved in any other way in performing physical therapy.
“11. The Board finds that the applicant’s request for an exemption for the Rehabilitation Center must be denied. Although the applicant may use the Rehabilitation Center to provide rehabilitation services to its patients, the
applicant also uses the property to provide services to the general public. “12. The applicant has not demonstrated that there is a community need for the additional services being provided by the applicant. The applicant must prove ‘by a preponderance of competent evidence’ that there is a community need for the services provided by the applicant. 9200 Santa Fe Corp. v. Board of Johnson County Comm’rs, 19 K.A.2d 91, 94, 864 P.2d 742 (1993). As the County notes, there are other health and fitness centers in the community. There appears to be no reason for the applicant to offer fitness club memberships, massages, aromatherapy, and body wraps to non-patients.
“13. If the applicant provides these services to help offset the costs of providing rehabilitation services, the Supreme Court has held such a use [cannot] be exempted. See Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P.2d 830 (1953); Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960). The Board concludes that the exemption request for the Rehabilitation Center must be denied.”
Standard of Review
The Kansas Supreme Court set forth our standard of review in a recent case discussing K.S.A. 2000 Supp. 79-201 Ninth:
“The statute we consider in this case does not involve the question of‘exclusive use’ but rather involves a question of actual use ‘for the predominant purpose of providing humanitarian services.’ K.S.A. 79-201 Ninth. We do not depart from our earlier decisions and the fundamental rules and legal principles established as guidelines to be applied when examining tax exemption statutes, which are quoted in part in the BOTA decision:
‘(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. [Citation omitted.]
‘(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. [Citations omitted.]
‘(3) The burden of establishing exemption from taxation is on the one claiming it. [Citation omitted.]’ [Citation omitted.]
“However, because we deal with a newly enacted exemption based upon other than ‘exclusive use,’ we may not ignore the very fundamental rule of statutory interpretation. The intent of the legislature, where it can be ascertained, governs the construction of the statute, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. [Citation omitted.] The rule of strict construction is subservient to the fundamental rule of statutory construction, which requires that the intent and purpose of the legislature govern. [Citation omitted.]
“ ‘. . . Interpretation of a statute is a question of law, and this court’s review is unlimited.’ [Citation omitted.] BOTA is a specialized agency that exists to decide taxation issues, and its decisions should be given great weight and deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we will take corrective steps. [Citation omitted.]
‘When a statute is plain and unambiguous, a court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 745-49, 973 P.2d 176 (1999).
Analysis
K.S.A. 2000 Supp. 79-201 Ninth provides in relevant part:
“All real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if: . . . (e) the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation .... As used in this clause, ‘humanitarian services’ means the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs.”
Mercy argues BOTA erroneously interpreted this statute to require Mercy to demonstrate a community need for Fitness Zone memberships and massage services. In its view, if the statute is interpreted correctly, an exemption is authorized despite certain nonhumanitarian uses, as long as they are “minimal in scope and insubstantial in nature” and “incidental to the purpose of providing humanitarian services by the corporation.”
Bourbon County (County), for its part, argues that BOTA properly analyzed the statute by first determining whether the fitness and massage services were humanitarian in nature and by then determining whether they were minimal and insubstantial and incidental to the humanitarian services.
We agree with Mercy. BOTA’s interpretation and application of the statute did not follow the pattern suggested by the County. Rather, it conflicted with it and the plain and unambiguous language of the statute itself.
Under K.S.A. 2000 Supp. 79-201 Ninth, BOTA first needed to determine whether the actual and regular use of the property was “substantially and predominantly related to the purpose of providing humanitarian services.” See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 746. Although BOTA never made this finding and never discussed the center’s substantial or predominant use, our review of the record persuades us that the humanitarian nature of the vast majority of the center s services, i.e., rehabilitation for Mercy outpatients, was undisputed.
The statute next required BOTA to determine whether the Fitness Zone and massage services were humanitarian or nonhumanitarian. If they were humanitarian, the statute authorized the ex emption without any further inquiry. If they were not humanitarian, the statute still authorized the exemption as long as the Fitness Zone and the massage services were “minimal in scope and insubstantial in nature” and “incidental” to the corporation’s humanitarian purpose.
The statute provides that a service’s responsiveness to a community need weighs in favor of its classification as humanitarian. This is where BOTA apparently lost its way, using this inquiry as a proxy for the overall question of whether Mercy had proved its case for the exemption. Because the competent evidence on communiiy need was conflicting, BOTA mistakenly concluded that Mercy had failed to carry its entire burden and disallowed the exemption. See 9200 Santa Fe Corp., 19 Kan. App. 2d 91, 94, 864 P.2d 742 (1993) (applicant must prove community need exists “by a preponderance of competent evidence”).
Giving BOTA the deference it is due, we have no quarrel with its factual finding that the Fitness Zone and massage services were not responsive to community need and therefore not humanitarian. We depart from BOTA on the legal effect of that finding. As stated above, the statute allows a tax exemption when the use to which properly is put is primarily, though not solely, humanitarian. BOTA erred by failing to move to the next question: Do the Fitness Zone and the massage services provided at the center qualify as “minimal in scope and insubstantial in nature” and “incidental” to the center’s primary humanitarian mission.
The revenue associated with the Fitness Zone memberships and massage services composed less than 4 percent of the center’s total revenue. Future growth of the Fitness Zone component is severely limited by space and time, and 30 of the 82 memberships are held by hospital employees. Some of the remaining 52 memberships are held by former rehabilitation outpatients from the center who want to follow up on their therapy. They and their fellow members from the community and the hospital employees may make use of the center’s equipment only when it is not in use by Mercy’s current rehabilitation outpatients.
Under these facts, the Fitness Zone and massage services easily qualify as “minimal in scope and insubstantial in nature” under the statute. “Incidental” is defined as “[subordinate to something of greater importance; having a minor role.” Black’s Law Dictionary 765 (7th Ed. 1999). Under this definition, we hold that the Fitness Zone and massage services also qualify as “incidental” to the center’s predominant outpatient rehabilitation services.
BOTA erred in finding that the property was not entitled to exemption under K.S.A. 2000 Supp. 79-201 Ninth.
Cost Offset Finding
Mercy and amicus curiae Kansas Hospital Association (KHA) also argue that BOTA erroneously concluded applicant would be prohibited from using revenue from the Fitness Zone memberships and massage services to offset the costs of providing rehabilitation services, citing Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P.2d 830 (1953), and Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960). They assert no evidence was presented to support such a finding and say BOTA’s reliance upon it to deny the exemption was unreasonable, arbitrary, and capricious.
Mercy and KHA are correct that no evidence was presented to indicate that the Fitness Zone and massage services were used to offset the costs of the rehabilitation services at the center. We note that BOTA seems to recognize the lack of evidence by stating its finding conditionally: “If the applicant provides these services to help offset the costs . . . .” (Emphasis added.) Given the lack of evidence, the finding was irrelevant and inappropriate excess verbiage that could have had no effect on BOTA’s conclusion and that has no effect on our contrary decision.
Reversed. | [
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Elliott, J.:
George McGrew appeals his convictions of possession of cocaine with intent to sell ¿ter two prior convictions and criminal acquisition of drug proceeds; he ¿so appe¿s the sentences on both counts.
We ¿firm in part and reverse in part.
The State failed to file a brief.
McGrew was sentenced to 154 months’ imprisonment on the possession with intent to sell count and a concurrent term of 10 months on the criminal acquisition of drug proceeds count.
McGrew first claims the jury instruction defining “possession” impermissibly shifted the burden of proof to him, violating his due process rights with respect to the possession with intent to sell count. This contention was not made to the trial court; thus, our review is for clear error. See K.S.A. 60-251(b). McGrew did object to the instruction but on different grounds than raised now on appeal.
The challenged instruction reads:
“ ‘Possession’ means, ‘having control over a place or thing with knowledge of, and the intent to have, such control.’ The proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction, even though the amount may not be measurable or usable. The state, however, must still prove the existence of a controlled substance.
“You may infer possession from a person’s use of illegal drugs and narcotics, his proximity to the area where the drugs are found, whether the drugs are in plain view, and suspicious behavior.
“Possession may be immediate and exclusive, jointiy held with another, or constructive. ‘Constructive possession’ is knowingly having both the power and the intention, at a given time, to exercise dominion or control over the property. ‘Joint possession’ occurs when two or more persons, who have the power or control and intent to manage property, exercise the same jointly.”
A brief from the State would have been helpful. Nevertheless, well after appellant’s brief was filed, in State v. Alvarez, 29 Kan. App. 2d 368, 28 P.3d 404, rev. denied 272 Kan. 1419 (2001), we considered and rejected the same argument made against the same instruction given by the same trial judge. McGrew’s argument has no merit.
McGrew also challenges the sufficiency of the evidence supporting his conviction of criminal acquisition of drug proceeds. Our standard of review is as stated in State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999), and a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 268 Kan. 222, 236, 993 P.2d 1213 (1999).
In order to be convicted under K.S.A. 2000 Supp. 65-4142, a defendant must acquire or receive proceeds known to be derived from a violation of the Uniform Controlled Substances Act. The verb phrase “known to be derived from a violation of the uniform controlled substances act,” indicates the proceeds, before the offender acquires or receives them, must have been derived from a violation of the Act, and the offender must know of that fact.
As the title to the Act section from which K.S.A. 2000 Supp. 65-4142 is taken indicates, this is a money laundering statute. See Uniform Controlled Substances Act, 9 U.L.A. 547 § 412 (1994) (entitled “Money Laundering and Illegal Investment; Penalty”). The official comment to the section explains this “section makes it unlawful . . . [to] acquire . . . finances or assets that are actually known to have been derived from or are intended to further narcotics trafficking.” The emphasized text is grammatically stated in the past tense. Thus, in the present case, the money itself, before McGrew’s acquisition or receipt of it, must have been derived from a violation of the Act, and he must have known that fact.
Mere receipt or acquisition of money or other proceeds from the sale of a controlled substance will not support a charge under K.S.A. 2000 Supp. 65-4142 provided the money given the seller in exchange for the controlled substance was itself not a proceed derived in violation of the Act, or if it was, the seller did not actually know of that fact.
In the present case, there is simply no circumstantial evidence viewed in a light most favorable to the State to support the inference that the money found on McGrew’s person was received or acquired by him in Geary County on the date charged and that McGrew knew the money had been derived in violation of the Act. In fact, the State charged McGrew with possession with intent to sell and not the actual sale of cocaine.
There is no circumstantial evidence of where the money found on McGrew came from. There is no circumstantial evidence of when or where McGrew received or acquired the “proceeds”— only that he possessed die alleged proceeds on the date charged. Even if McGrew received or acquired that money from selling cocaine and did so on the date charged in Geary County, there is no circumstantial evidence that the buyer had derived the money from a violation of the Act.
The evidence was simply insufficient to support McGrew’s conviction for criminal acquisition of drug proceeds; that conviction is reversed.
We recognize our holding conflicts conceptually with another panel’s decision in State v. Betz, 29 Kan. App. 2d 575, 30 P.3d 1037 (2001). The Betz panel held a violation of K.S.A. 65-4142 and sale of drugs under K.S.A. 65-4161 were multiplicitous and set aside the conviction for criminal acquisition of drug proceeds.
We do not feel the two charges in the present case are multiplicitous. Here, the State simply failed to establish the separate facts necessary to support a conviction of criminal acquisition of drug proceeds. It is obvious to us the State cannot charge sale of a controlled substance or possession with intent to sell and criminal acquisition of drug proceeds based on the same, single transaction. Thus, the legislature could not have intended K.S.A. 2000 Supp. 65-4142 to apply to a single transaction like the one at bar.
For a conviction of the money laundering statute, K.S.A. 65-4142, one other than defendant must first derive proceeds from a violation of the Act, then those proceeds must be received or acquired by defendant in another transaction.
McGrew also claims the trial court erred in sentencing him for a felony for criminal acquisition of drug proceeds. Since we have reversed his conviction on that count, we need not address the issue.
Finally, McGrew claims the sentence enhancement for possession of cocaine with intent to sell violated the rulings of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The first time a defendant is convicted of the crime here involved, it is a severity level 3 drug felony. K.S.A. 2000 Supp. 65-4161(a). Since this was McGrew’s third conviction, the crime became a severity level 1 drug felony. K.S.A. 2000 Supp. 65-4161(c).
McGrew contends, under Apprendi, the fact of his prior two convictions must be submitted to a juiy and proved beyond a reasonable doubt. This issue was not raised in the trial court; we do not consider an issue not raised below. See, e.g., State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). Further, under the facts of this case, McGrew’s sentence was a presumptive sentence. We have no jurisdiction to consider an appeal from a presumptive sentence. K.S.A. 21-4721(c)(l); State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000).
We lack jurisdiction to consider McGrew’s presumptive sentence for possession of cocaine with intent to sell.
Finally, we must comment on the State’s failure to file a brief to present its position on this appeal. This case involves convictions of severity level 1 and severity level 4 drug felonies and raises some complex issues of first impression. The State’s failure to file a brief demonstrates, at the least, a lack of interest and also a lack of confidence in the convictions and sentences obtained. See Seaton v. State, 27 Kan. App. 2d 104, 105, 998 P.2d 131 (2000); Zapata v. State, 14 Kan. App. 2d 94, 99, 782 P.2d 1251 (1989). The prosecutor’s office should demonstrate its obligation to represent the interests of the public.
We have recently admonished the State for filing an inadequate brief. See Cellier v. State, 28 Kan. App. 2d 508, 523, 18 P.3d 259 (2001) (citing State v. Law, 203 Kan. 89, 92-93, 452 P.2d 862 (1969). Here, our admonishment to the State for failing to file a brief altogether is even stronger.
We affirm the conviction of possession of cocaine with intent to sell and reverse the conviction of unlawful acquisition of drug proceeds; we do not reach the sentencing issues raised with respect to the sentences imposed.
Affirmed in part and reversed in part. | [
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Marquardt, J.:
Heather D. Bausch appeals her sentence and the trial court’s order that she pay restitution.
In February 1999, Bausch was charged with 4 counts of felony theft, 1 count of felony theft of services, 1 count of misdemeanor use of a financial card, and 16 counts of misdemeanor theft. While employed with Rehable Car Shop, Inc. (Rehable), Bausch accepted cash payments from customers which were never deposited in the bank.
Bausch pled no contest to two counts of felony theft over $500. Bausch was sentenced to 24 months’ probation with an underlying prison term of 7 months. The victim requested restitution in the amount of $11,053.33, which included expenses for consultations with a tax attorney, photocopying, parldng, Bausch’s use of the victim’s cellular telephone, and time spent auditing business accounts. The trial court ordered restitution in the amount of $11,530.33.
Bausch filed a motion to modify the amount of restitution. Following a hearing, the trial court modified the restitution order to allow for the amount of the theft, photocopies, and 90 hours of labor at $15 per hour. The trial court did not allow restitution for tax attorney fees, parking, and cell phone use. Bausch filed an untimely notice of appeal with this court; however, her appeal was retained.
On appeal, Bausch contends that the trial court erred when it ordered her to pay restitution for the costs of the victim’s photocopies and $15 per hour for 90 hours of labor for the audit. Bausch does not dispute that she owes the $7,761.33 she embezzled from Rehable.
The trial court has considerable discretion in determining the amount of restitution to be ordered. The trial court has abused its discretion when no reasonable person would take the view adopted by the trial court. State v. Ball, 255 Kan. 694, 702, 877 P.2d 955 (1994).
“In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
“(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” K.S.A. 2000 Supp. 21-4610(d).
Bausch relies on State v. Jones, 11 Kan. App. 2d 428, 724 P.2d 146 (1986), to support her argument. In Jones, this court held that a trial court may not require a defendant to reimburse the State for investigation expenses. 11 Kan. App. 2d at 430.
Restitution is meant to compensate the victim and serve the functions of deterrence and rehabilitation of the guilty. State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999). Kansas appellate courts have not addressed the validity of a restitution order which reimburses the victim for the costs of auditing. However, other jurisdictions have addressed this exact question.
In State v. Johnson, 69 Wash. App. 189, 847 P.2d 960 (1993), the defendant embezzled money while employed at an auto body shop. She was charged with one count of first-degree theft. The trial court ordered the defendant to pay $2,700 for an audit of business records. The appellate court found that the cost of investigating the business records was a reasonable consequence of the defendant’s crime. 69 Wash. App. at 193; see State v. Wilson, 100 Wash. App. 44, 46, 50, 995 P.2d 1260 (2000).
Amy Herrick, one of the owners of Rehable, is a financial planner who also serves as the bookkeeper for Reliable. Herrick informed the trial court that law enforcement officials told her an audit would be needed.
Herrick had to research Bausch’s theft by documenting the days Bausch worked, compiling all transactions for that day, and comparing that information to Bausch’s activity in preparing bank deposits and credit card transactions. Herrick had to look through vault records, speak with a tax attorney and bank employees, telephone the credit card clearing company, and make photocopies of documents. Herrick requested compensation for 160 hours of work at $15 per hour.
It is clear that Herrick would not have had to incur these costs but for Bausch’s theft. Accordingly, we believe that the trial court appropriately allowed restitution for the cost of the audit.
Bausch álso complains that the State failed to present adequate evidence of the audit and photocopy expenses.
Herrick admitted that she could “only estimate” the time spent investigating Bausch’s theft. Herrick explained that she had some handwritten notes documenting her time but there were no official billing statements.
Time spent on the audit was not well documented; however, we are not prepared to find that the trial court abused its discretion by awarding 90 hours of labor at $15 per hour when Herrick requested compensation for 160 hours of work.
We hold that the trial court did not abuse its discretion by ordering Bausch to pay the costs of the audit as part of the restitution when it is the reasonable consequence of Bausch’s crime. Bausch’s arguments to the contrary are not persuasive.
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Bennington, J.:
Vickie Lumley was convicted of the intentional second-degree murder of her husband. That conviction was affirmed in State u. Lumley, 266 Kan. 939, 976 P.2d 486 (1999). In her K.S.A. 60-1507 motion she alleges denial of counsel and denial of effective assistance of counsel arising from trial counsel’s refusal to decide whether to request instructions on lesser included offenses. Lumley also asserts ineffective assistance of counsel stemming from trial counsel’s failure to preserve for appeal the issue of the trial court’s refusal to allow a witness to testify. In the alternative, she contends trial counsel was ineffective for failing to locate a qualified expert witness.
The trial court denied Lumley relief, and this appeal followed. We affirm.
During the trial, the State proposed an instruction for the lesser included offense of unintentional second-degree murder. Defense counsel on behalf of his client requested that the court give no lesser included instructions. The court asked if he had discussed the subject of lesser included offenses with Lumley. He responded:
“We have, your honor. Ms. Lumley and I discussed this at some length last night, including down to Involuntary Manslaughter, including all of the penalties and what she would be looking at on each one of them, as well as the elements. And she has requested today that I specifically request the court that there be no lesser-includeds given, and that she stand charged only with the'original charge of Second Degree Intentional.”
The court asked Lumley if it was her request that no lesser included instructions be given. She responded in the affirmative. The court stated the evidence was clear there was a sudden quarrel and, over defendant’s objection, instructed the jury on the crime of voluntary manslaughter in addition to the charged crime of intentional second-degree murder.
At the evidentiary hearing on the K.S.A. 60-1507 motion, Lumley’s trial counsel testified he discussed with Lumley the possibility of requesting lesser included offense instructions. Trial counsel testified he went over all the possible lesser included offenses that could be given and the penalties for each. He talked with Lumley about the pros and cons of an all or nothing approach, meaning not requesting lesser included offense instructions. Trial counsel did not make a recommendation to Lumley. He pointed out all the options and told Lumley she had to malee the decision. Further, trial counsel testified he felt fairly positive about the case and felt he had presented the jury with a “pretty good amount of reasonable doubt.”
Lumley testified her trial counsel fully explained all the issues of lesser included offenses, including discussing the elements and punishments of each lesser included offense. Counsel left the decision to Lumley as to whether lesser included offense instructions should be requested.
Trial counsel’s refusal to decide for Lumley whether to request instructions on lesser included offenses is the basis for Lumley’s denial of counsel claim and one basis for her denial of effective assistance of counsel claim. Lumley characterizes her first issue as a denial of counsel claim. This characterization is incorrect. Her second issue, on the same facts, is characterized correctly as an ineffective assistance of counsel claim. Thus, Lumley’s first two issues will be treated as one ineffective assistance of counsel claim.
The standard of review for an appeal of a K.S.A. 60-1507 motion is for the appellate court to determine whether the factual findings of the court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998). Substantial evidence is evidence that possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). The appellate court must accept as true the evidence and all inferences drawn from the evidence which tend to support the findings of the trial judge. Graham, 263 Kan. at 753-54.
For present purposes, the two landmark cases on the issue of ineffective assistance of counsel are Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Strickland announced the now familiar test of evaluating a claim of ineffective assistance of counsel. A defendant must show: (1) counsel’s performance “fell below an objective standard of reasonableness,” and (2) the deficient performance prejudiced the defendant. 466 U.S. at 687-88.
Regarding the performance prong, our Supreme Court wrote in Chamberlain-.
“The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 236 Kan. at 656-57.
Chamberlain also set forth the generally applicable standard for evaluating the prejudice prong as follows:
“With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 236 Kan. at 657.
We need not address the second prong if the defendant fails to prove the first. State v. Pink, 236 Kan. 715, 732, 696 P.2d 358 (1985), overruled in part on other grounds State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986).
As with all applications of the Strickland test, whether a defendant has made the requisite showing depends on the facts of the particular case. See Strickland, 466 U.S. at 695-96. When, as here, the 60-1507 court has made findings of fact and conclusions of law, this court on appeal reviews whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis and whether the facts so stated have any substantial support in the evidence. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997). We do not reweigh the testimony or the credibility of witnesses. At the same time, our review of the performance and prejudice components remains de novo, as mixed questions of law and fact. 262 Kan. at 322. We now turn to Lumley’s claims.
There are no Kansas cases that directly address this particular issue. In her brief, Lumley cites a plethora of cases, largely from other jurisdictions, generally standing for the proposition that it is a matter of trial strategy and within the province of counsel to determine whether to request lesser included offense instructions. The cases do not, however, stand for the proposition that counsel is ineffective for leaving the decision of whether to request lesser included offense instructions to the defendant.
The facts disclose Lumley was fully informed by trial counsel as to all of the possible lesser included charges that could be instructed to the jury. Lumley was told what penalty attached to each lesser included charge. Trial counsel discussed the amount of evidence produced by the State and the possibility of reasonable doubt existing in the minds of the jurors. Her decision was not rushed. The discussion occurred the day before she was required to make it.
Furthermore, the court inquired of Lumley if she was requesting no lesser included offense instructions. She replied affirmatively and did not complain to the court about being required to make the decision. The omission of lesser included charges was not raised in the direct appeal. See Lumley, 266 Kan. at 941.
Finally, no evidence was produced at the hearing on the K.S.A. 60-1507 motion that suggested, nor is it contended here, that trial counsel provided erroneous information or incomplete information to Lumley.
Given trial counsel’s understanding of the law compared with that of Lumley’s, the better option would have been for trial counsel to at least have recommended whether to request lesser included offense instructions. However, under the facts of this case, counsel’s failure to recommend whether to request lesser included offense instructions does not constitute ineffective assistance of counsel. We hold counsel’s failure to recommend whether to request lesser included offense instructions did not render his performance so deficient that he was not functioning at the level guaranteed to defendant by the Sixth Amendment.
As defendant has failed to meet the requirements of the first prong of the test for ineffective assistance of counsel, it is unnecessary to address the merits of the second prong.
The district court did not err in finding counsel was not ineffective. Its findings are supported by substantial competent evidence.
The third and fourth issues raised by defendant in this appeal are whether trial counsel was ineffective for failing to make or preserve a record of the trial court’s determination that Gretchen Loucks would not qualify as an expert and, alternatively, for failing to present a qualified expert.
At the evidentiary hearing, trial counsel testified that during trial, in discussions with the court, he was advised the court was familiar with Gretchen Loucks and she would not qualify as an expert on battered woman syndrome under any conditions. Defense counsel, the judge, and the prosecutor were present during this discussion. No hearing was requested on the issue of Loucks’ qualifications. Counsel admitted he should have done something to preserve the record. Due to the pronouncement by the court that Loucks would not qualify as an expert, defense counsel did not call Loucks to the stand during trial. For lack of a record, the issue was not preserved for appellate review.
Defense counsel did not properly handle the situation. He should have made a record of the court’s ruling or a proffer of the evidence. A party may not assert error based on the exclusion of evidence in the absence of a proffer of that proposed evidence. State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). However, counsel can only be declared ineffective if Loucks’ testimony was improperly excluded and that testimony would have had a reasonable probability of affecting the outcome of the trial. See State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000). This issue can now be properly addressed by this court, as both Loucks and defense counsel testified at the evidentiary hearing. Their testimony amounts to a proffer of what Loucks’ testimony would have been at trial.
Loucks never interviewed Lumley prior to trial. At the evidentiary hearing, Loucks admitted she did not have the qualifications to do an evaluation on Lumley regarding Lumley’s characteristics as a battered spouse. Loucks also testified she told defense counsel she was not qualified to diagnose battered woman syndrome.
At the evidentiary hearing, Lumley’s trial counsel testified he was going to use Loucks to give the jury a background and understanding into how a battered spouse would react, particularly why the spouse would keep returning home. He stated Loucks’ testimony was “just an educational thing for the jury to show them what tire Battered Spouse Syndrome was and how it could affect the victim in this case.”
The same judge presided over the trial and the evidentiary hearing. The district court’s journal entry of the evidentiary hearing stated that if Lumley had called Loucks as a witness, she could not have testified that Lumley had symptoms of battered woman syn drome until after the proper evidence had been admitted diagnosing Lumley as having battered woman syndrome. The court also ruled the evidence had little if any relevance, stating: “In essence, what [Lumley] is attempting to do is to use symptoms of a Battered Woman Syndrome for the defense of a case where the syndrome had very little do with it.”
The admission or exclusion of evidence is reviewed for abuse of discretion. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said the trial court abused its discretion. One who asserts the court abused its discretion bears the burden of showing such abuse of discretion. Lumley, 266 Kan. at 950. The admission of expert testimony is also within the discretion of the trial court. Its decision will not be overturned absent an abuse of discretion which results in prejudice to the party whose testimony was excluded. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996).
Loucks was not going to testify as to anything specific about Lumley but rather just general characteristics of the battered woman syndrome. Loucks had never interviewed Lumley and admittedly did not have the qualifications to diagnose battered woman syndrome. Without Lumley being diagnosed with battered woman syndrome, evidence of the characteristics of the syndrome was not relevant. The court did not abuse its discretion at trial in refusing to allow Loucks to testify and was correct in its journal entry for the evidentiary hearing when it reiterated its trial ruling that Loucks could not have testified.
Since the testimony of Loucks was properly excluded, Lumley was not prejudiced by her trial counsel’s failure to preserve the record or proffer the evidence. Even if Loucks had testified, there is no reason to believe the result of the trial would have been any different. The district court did not err in finding Lumley’s trial counsel was not ineffective.
In the alternative, Lumley claims her counsel was ineffective for fading to find another expert to testify. The district court did not specifically address this issue in its decision. Nevertheless, Lumley’s contention is without merit.
At the evidentiary hearing, Lumley s trial counsel testified he spoke with two mental health professionals regarding Lumley’s situation. Both experts indicated to counsel he was not dealing with battered woman syndrome but rather with self-defense. Both experts recommended to counsel that self-defense should be the approach taken. Further, there was no evidence presented anywhere in the record that Lumley was diagnosed with battered woman syndrome. At the evidentiary hearing, Lumley did not put on evidence that there was an expert available who would have diagnosed her with battered woman syndrome. Absent this evidence, Lumley cannot show prejudice. Counsel was not ineffective.
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Green, J.:
Kapelle D. Simpson appeals his conviction by a jury of sale of cocaine. On appeal, Simpson argues that the trial court erred by (1) failing to obtain a knowing and voluntary waiver of his right to a 12-person juiy; (2) failing to inquire as to the nature of his conflict with defense counsel; (3) allowing a witness to invoke his Fifth Amendment rights in the presence of the jury; (4) cross-examining him on a key issue of the case; (5) admitting prejudicial rebuttal evidence; (6) allowing inadmissible hearsay into evidence; and (7) failing to properly instruct the jury. We reverse and remand for a new trial.
During an undercover investigation, Officer Anna Hatter met Oliver Pittman. Pittman brokered several drug sales between Officer Hatter and various individuals, including Shawn Hampton, Simpson s cousin. On November 20, 1998, Hatter called Pittman to purchase crack cocaine. According to Hatter, Pittman handed the phone to another individual whom he referred to as “Love,” later identified as Simpson. Love told Officer Hatter to have Pittman call him when she arrived at Pittman’s apartment, and he would bring the crack to her.
Hatter then assembled a narcotics team and prepared the surveillance equipment before going to Pittman’s apartment. When she arrived, there were four other people at Pittman’s apartment to purchase drugs. Pittman placed a call to someone whom Hatter assumed was Love. After waiting awhile, Hatter complained to Pittman that Love was taking too long to arrive with the drugs. Pittman responded that it would not take Love much longer to get there because Love lived with Hampton, who had sold crack to Hatter on previous occasions and had not taken much time to’deliver the drugs.
While Officer Hatter was at Pittman’s apartment, there was a knock on the back door of the residence, and Love entered the kitchen. Hatter went to the kitchen where Love was speaking on a cell phone. Hatter testified that Love opened his hand, revealing three rocks of crack wrapped in plastic. Hatter paid Love $60 for the drugs.
When Hatter left Pittman’s apartment, she radioed Love’s description so that Officer Frank Cook, a uniformed officer, could do a patrol stop in order to identify the suspect. Officer Cook was instructed not to arrest the suspect at this time so that the detectives could further their investigation. When Officer Cook stopped Love’s car, the driver produced both Kansas and Missouri driver’s licenses which identified him as Kapelle Simpson. In addition, the car registration indicated that the car was registered to Kapelle Simpson. After the undercover investigation was completed, Simpson was charged with and convicted of sale of cocaine.
Waiver of 12-Person Jury
Simpson argues that the trial court committed reversible error when it failed to advise him of his right to a 12-person jury. Specifically, Simpson argues that the trial court’s failure to advise him of his right to a 12-member jury resulted in his waiver of that right. The question of whether Simpson knowingly and voluntarily waived his right to a jury of 12 persons is a question of fact and, as a result, we review the record to determine whether substantial competent evidence supports the trial court’s finding. See State v. Stuber, 27 Kan. App. 2d 160, 163, 1 P.3d 333, rev. denied 269 Kan. 940, cert. denied 531 U.S. 945 (2000).
To determine whether Simpson knowingly and voluntarily waived his right to a 12-person jury, it is necessary to set out the events preceding the waiver. The third day of Simpson’s trial began with Simpson notifying the court that he was having problems with his attorney:
“THE COURT: We’re back on the record in the Simpson matter.
“THE DEFENDANT: Could I speak to you, Your Honor, because I’m having some problems with —
“THE COURT: Well, we’re going back on the record in the Simpson matter, and Mr. Simpson, you have something to say?
“THE DEFENDANT: Yes, I do, Your Honor. Me and my attorney are having disagreements on certain issues that needs to be addressed to the Court, like the paper that the prosecution presented to the officer that he gave to his detective — I mean gave — the officer gave to a detective to give to the leading officer in this case, his leading witness, he gave her this paper, this paper was never given to us.
‘When we finally get this paper, this paper has at the bottom of it this court be Smoke, yet still this officer, he’s the one who claimed to have written it, didn’t write no date on it, no time, he gave this paper to them. If this said this could be Smoke on it, they know I’m Mr. Kappelle Simpson, he wouldn’t have no doubt in his mind that he knew what he was talking about.
“THE COURT: Well, Mr. Simpson, if you and your attorney have a disagreement over strategy, what ought to be asked or not asked, that’s something the two of you need to work out. You know, if you’re not happy with the representation you’re getting and you don’t think that it’s possible for you two to proceed, then that’s a different question and we’re going to have to take action based on that; but just because the two of you don’t agree on something doesn’t mean that I’m going to necessarily get involved in it. You understand what I’m saying?
“MS. NOLAN [Defense Counsel]: Your Honor, he wants to have that little sheet of paper admitted into evidence.
“THE COURT: Which little sheet of paper specifically are we talking about, that picture?
“THE DEFENDANT: No, the paper that he has claiming that one of his witnesses, Officer Cook, claims to have written the night of the 20th that he gave to surveillance officers Detective Smith. Yes, that.
“MR. MAGANA [The prosecutor]: This is the notes that Officer Cook took at the stop.
“THE DEFENDANT: And you see what it says at the bottom.
“THE COURT: And it has not been admitted into evidence.
“MR. MAGANA: That’s correct.
“THE COURT: Are you going to be wishing to do that, Ms. Nolan?
“MS. NOLAN: I wish I could.
“THE COURT: Why can’t you?
“MS. NOLAN: It’s his [the prosecutor’s] piece of paper.
“MR. MAGANA: We’ll go ahead and put it in, we’ll just put it in with Cook.”
The trial court did not ask Simpson whether he had any additional problems with his attorney. Instead, the trial court reported that a juror was ill and unable to continue:
“THE COURT: All right. On to another matter, IVe received a communication from the jury coordinator that one of tire jurors is very ill ... . And IVe asked both counsel if they have any objection to proceeding with 11 jurors. I assume the State has no objection.
“MR. MAGANA: That’s correct, Your Honor.
“THE COURT: And Ms. Nolan, you’ve indicated you and your client have no objection; is that correct?
“MS. NOLAN: That’s correct, Your Honor.
“THE COURT: Now, Mr. Simpson, I assume that’s true, you have no objection; is that right?
“THE DEFENDANT: Yes.
“THE COURT: Yes, you have no objection?
“THE DEFENDANT: Yes, no objection.
“THE COURT: And you’ve also written that out here; is that correct?
“THE DEFENDANT: That’s correct.
“THE COURT: And you’ve signed and dated it on this date; is that correct?
“THE DEFENDANT: That’s correct.
“THE COURT: Then we are going to proceed with 11 jurors.”
The trial court then .went on to address the presentation of the State’s rebuttal evidence. During this discussion, Simpson interjected, “I got a question,” and his attorney said, “Just ask me.” The trial judge told Simpson, “You just need to visit with your attorney. Okay.”
After his conviction, Simpson moved for a new trial alleging that the trial court failed to advise him of his rights before waiving a 12-person jury. At the hearing on the motion for a new trial, Simpson explained to the trial court that his attorney did not advise him of his rights regarding the jury:
“She didn’t give me any [advice], that’s my whole — she didn’t tell me that if I keep arguing and arguing or even — I didn’t even know I didn’t have to argue, that I could have got a new trial and a new jury. I wouldn’t have wanted to proceed with only 11 jurors, that one juror could have been the juror that, you know, that could have made a hung jury or believed my side of the story or anything. I never was explained anything by her.”
Nolan testified that her advice to Simpson consisted of the following:
“I told him that we were missing a jury, that one of the jury was sick. And he says what does that mean. And I responded and said that it would be a mistrial and we’d have a new trial or he could proceed with an 11 person jury. I did not give him any further advice or any further information.”
The trial court denied Simpsons motion for a new trial after finding as follows:
“It might be that we could have gone into great detail on the record with Mr. Simpson as to what he was doing in waiving his right to a new trial, but I’m going to make the finding that based on the testimony of Ms. Nolan that he in fact knew that he could either get a new trial or proceed with an 11 person jury. I think his waiver was knowing and voluntary.”
On appeal, Simpson argues that this record does not demonstrate a knowing and voluntary waiver of his right to a 12-person jury. Simpsons specific complaint is that the trial court did not personally convey to him that he had a right to a 12-member jury and the significance of waiving that right.
K.S.A. 22-3403(2) provides: “A jury in a felony case shall consist of twelve members. However the parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.”
A defendant’s right to assent to less than 12 jurors is derived from the right to waive a jury trial. State v. Roland, 15 Kan. App. 2d 296, 298, 807 P.2d 705 (1991). In State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975), our Supreme Court discussed the test for determining the validity of a jury trial waiver:
“Since the right to trial by juiy is constitutionally preserved, waiver of the right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. It is provided by statute in this state that a jury trial may be waived in any criminal trial where the defendant, the state, and the trial court assent to such waiver. [Citations omitted.] We have stated the test for determining the validity of a waiver of the right to a jury trial is whether die waiver was voluntarily made by a defendant who knew and understood what he was doing. [Citation omitted.] Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record. [Citation omitted.]”
The Irving court went on to state: “ The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.’ ” 216 Kan. at 590.
Although Irving requires a trial court to advise a defendant of his or her right to a jury trial, the extent of the inquiry that is sufficient has not been fully addressed in Kansas. However, a case involving the waiver of the right to a 12-person jury has touched on the question. In State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987), die defendant argued that the trial court should have declared a mistrial after discovering that a juror was subject to a pending murder charge. The Hood court held that the defendant’s waiver of a 12-person jury was knowing because the trial court advised the defendant of his options of proceeding with 11 jurors or opting for a mistrial. The Hood court found that an intelligent waiver was made even though the trial court did not use the phrase “right to a juiy trial” in advising the defendant of his options.
Our Supreme Court has found the waiver of a jury trial to be intelligent even though the trial court’s colloquy with the defendant was brief, provided the trial court informed the defendant that he or she had a right to a juiy trial. See, e.g., State v. Fisher, 257 Kan. 65, 73, 891 P.2d 1065 (1995) (holding the defendant knowingly and voluntarily waived his right to a jury trial after the trial court informed the defendant of his constitutional right to a jury trial and that by waiving that right the trial judge would determine whether he was guilty); State v. Blanton, 203 Kan. 81, 87, 453 P.2d 30 (1969) (holding the defendant knowingly and voluntarily waived his right to a jury trial after the trial court advised him of his right to a juiy trial).
The Florida Supreme Court noted the following regarding the content of the trial court’s colloquy with the defendant before accepting a waiver of the right to jury trial:
“An appropriate oral colloquy will focus a defendant’s attention on the value of a juiy trial and should make a defendant aware of the likely consequences of the waiver. If the defendant has been advised by counsel about the advantages and disadvantages of a juiy trial, then the colloquy will serve to verify the defendant’s understanding of the waiver. Executing a written waiver following the colloquy reinforces the finality of the waiver and provides evidence that a valid waiver occurred. Because the waiver of a fundamental right must be knowing and intelligent, the above-stated practice better promotes the policy of recognizing only voluntary and intelligent waivers.” Tucker v. State, 559 So. 2d 218, 220 (Fla. 1990).
We find that the trial court erred in failing to personally advise Simpson of his right to a 12-person jury. As noted previously, Irving, 216 Kan. 588, requires the trial court to advise a criminal defendant of his or her right to a jury trial before accepting a waiver from the defendant. Such an advisement did not occur in this case because the trial court merely asked Simpson whether he objected to an 11-person jury. Asking Simpson whether he objected to an 11-member juiy falls far short of advising him of his right to a jury of 12 jurors. Moreover, the trial court should not have shifted the responsibility of advising Simpson of his right to a 12-person jury to defense counsel.
At the very least, the trial court was required to advise Simpson of his right to a 12-person jury. The trial court should have also explained to Simpson that he had the option of continuing with an 11-member jury or opting for a mistrial. Because the trial court failed to advise Simpson of his right to a 12-person jury, he did not possess the necessaiy information to make a knowing and voluntary waiver of that right. Moreover, we cannot say that the trial court’s error in failing to advise Simpson of the right to a 12-person juiy is harmless because the right to a jury of 12 jurors is a fundamental right. See State v. Morfitt, 25 Kan. App. 2d 8, 12, 956 P.2d 719, rev. denied 265 Kan. 888 (1998). As a result, we have no alternative but to reverse and remand this case for a new trial.
Failure to Inquire About Conflict with Defense Counsel
Simpson further contends that the trial court erred in failing to inquire as to his conflict with defense counsel. Our standard of review is whether the trial court abused its discretion in failing to inquire as to the potential conflict between Simpson and his attorney. See State v. Taylor, 266 Kan. 967, 978, 975 P.2d 1196 (1999).
It is the task of the trial judge to insure that a defendant’s Sixth Amendment right to counsel is honored. State v. Cromwell, 253 Kan. 495, 507, 856 P.2d 1299 (1993), modified on other grounds State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993). Irreconcilable conflict between a defendant and his or her attorney may, in certain circumstances, require the appointment of substitute counsel to protect the defendant’s Sixth Amendment right to effective assis tance of counsel. The complete breakdown of communication between an attorney and his or her client may evidence an irreconcilable conflict that requires appointment of substitute counsel. 253 Kan. at 500.
Simpson argues that the trial court erred in failing to inquire about the conflict and that such an error violates his Sixth Amendment right to effective assistance of counsel. In State v. Richardson, 256 Kan. 69, 883 P.2d 1107 (1994), the defendant argued the trial court’s inquiry into the conflict with his counsel was insufficient. The Richardson court found that the trial court did not abuse its discretion in failing to appoint new counsel. In reaching this decision, the Richardson court noted that the trial court asked the defendant to explain why he was unsatisfied with his counsel. The Richardson court also noted that although the trial court found the defendant’s dissatisfaction was without merit, the court afforded the defendant and counsel time to try to come to an understanding so the attorney-client relationship could be maintained. 256 Kan. at 82.
The problem here, however, is that the trial court did not allow Simpson an opportunity to explain his perception of the conflict. The United States Supreme Court has indicated that where the trial court becomes aware of a possible conflict of interest between an attorney and client, the trial court must inquire. Wood v. Georgia, 450 U.S. 261, 272, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981). The Wood court explained:
“[T]he record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the . . . hearing to impose upon the court a duty to inquire further. . . . Any doubt as to whether the court should have been aware of the problem is dispelled by the fact that the State raised the conflict problem explicitly and requested that the court look into it.” 450 U.S. at 272-73.
The Wood Court also characterized an earlier decision, Cuyler v. Sullivan, 446 U.S. 335, 347, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), as “mandating] a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’ ” 450 U.S. at 272 n.18.
Our Supreme Court relied on Wood in Taylor, 266 Kan. at 979. At Taylor s sentencing hearing, defense counsel informed the court that Taylor said he had spoken with “a couple of attorneys” and his family was interested in securing their services for Taylor s continued representation. The trial court did not inquire as to the reasons for Taylor’s request for time to secure alternate counsel and overruled the request, stating that Taylor could represent himself if he wanted to. Defense counsel made no further arguments on Taylor’s behalf.
On appeal, Taylor argued that the trial court’s summary denial of his request for a continuance to secure new counsel violated his Sixth Amendment right to counsel. The Taylor court noted: “The problem here is that the district court never allowed Taylor an opportunity to explain his perception of the alleged conflict before denying the request for new counsel.” The court went on to state that “[t]he district judge failed to make any inquiry as to the probléms between Taylor and [defense counsel]. Were they imagined or real? The record contains no inquiry from the bench regarding the adequacy of Taylor’s representation.” 266 Kan. at 975. The Taylor court concluded that “[w]here a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.” 266 Kan. at 979. See State v. Jenkins, 257 Kan. 1074, 1084, 898 P.2d 1121 (1995) (“[W]here the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated.”); State v. Mosley, 25 Kan. App. 2d 519, 956 P.2d 848 (1998), overruled on other grounds State v. Jasper, 269 Kan. 649, 653-54, 8P.3d 708 (2000) (holding it is an abuse of discretion when the trial court, after becoming aware of a potential conflict between an attorney and client, fails to inquire further).
Here, the trial court did not give Simpson an adequate opportunity to explain the perceived problems with his attorney. Simpson informed the court that he was having “disagreements on certain issues” with his attorney. Although the trial court allowed Simpson to explain why he believed a certain piece of evidence should have been admitted, the trial court did not ask Simpson whether the evidentiary issue was the extent of his problem. Moreover, the trial court reasonably should have known that Simpson’s conflict with defense counsel had not been resolved when Simpson announced that he had a question. Rather than addressing Simpson, the trial court swiftly referred him to defense counsel. The trial court’s failure to more fully inquire into Simpson’s alleged problems with defense counsel was an abuse of discretion.
Allowing Witness to Invoke Fifth Amendment Rights in Presence of the Jury
Simpson further argues that the trial court erred in allowing a State witness to exercise his Fifth Amendment rights in the presence of the jury.
Simpson’s defense theory was mistaken identity—that Hampton was the individual who sold drugs to Officer Hatter and was stopped by Officer Cook on the evening in question. As noted previously, Hampton allegedly sold drugs to Officer Hatter on several occasions and was a subject of the undercover investigation. The State decided to call Hampton as a rebuttal witness to show the jury the physical differences between Simpson and Hampton and to demonstrate that Officers Hatter and Cook could differentiate between the two individuals.
The State told the trial court that Hampton would likely invoke his Fifth Amendment rights if called. In addition, defense counsel expressed her concern that Hampton not invoke his Fifth Amendment rights before the jury. Despite warnings from both counsel, the trial court failed to admonish Hampton or his attorney not to invoke Hampton’s Fifth Amendment rights in front of the jury. As a result, the following proceedings occurred in the presence of the jury:
“MR. MAGANA: Your Honor, State would call Shawn Hampton, a/k/a Roland Bishop, to the witness stand.
“MR. LEON [Hampton’s attorney]: Your Honor, at this time I’d like to note for the record —
“THE COURT: Go ahead, Mr. Leon.
“MR. LEON: Yes, Your Honor. At this time I would like to note for the record that although Mr. Hampton is being called as a rebuttal witness in this matter, that he’ll plead the Fifth and we request that there be no other questions asked other than his name. There was a mention here as [an] a/k/a Roland Bishop, that was not my understanding as to what his presence of the proceeding would be.
“THE COURT: Well, I’m going to allow Mr. Magana to ask him what his name is and beyond that I’m not going to allow any questions. I wasn’t aware that he was going to mention a/k/a either, but I don’t think any prejudice has been done to Mr. Bishop’s case.”
In State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982), the defendant attempted to call a witness who was not charged with participating in the offense in which the defendant was being tried, but the possibility of charges being brought against that witness were veiy real. The witness, through counsel, clearly informed the trial court and trial counsel that she would refuse to answer questions that might incriminate her based on her Fifth Amendment rights. The Crumm court held that “[i]t is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.” 232 Kan. 254, Syl. ¶ 1.
Crumm quoted American Bar Association Standards of Criminal Justice, Relating to The Prosecution Function, Standard 4-5.7(c), and Relating to the Defense Function, Standard 3-7.6(c). The court noted that the commentaries to those standards indicate that claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion. 232 Kan. at 258. The Crumm court found additional dangers inherent in allowing a witness to invoke Fifth Amendment claims before a jury:
“ ‘Further, a witness’s reliance on the Fifth Amendment “may have a disproportionate impact upon the minds of the jurors.” [Citation omitted.] “The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the . . . fact that it is a form of evidence not subject to cross-examination.” [Citation omitted.] Because the impact of a witness’s refusal to testify outweighs its probative value, “[i]t is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense.” [Citations omitted.]’ ” 232 Kan. at 260 (quoting Com. v. Hesketh, 386 Mass. 153, 434 N.E.2d 1238, 1241-42 [1982]).
Our Supreme Court also addressed this issue in State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983). The Lashley court established a procedural rule whenever a witness informs either the defense or the prosecution that he or she intends to claim a Fifth Amendment privilege: “In the future trial courts should not proceed in this manner. Claims of privilege should be determined outside the presence of the jury, since undue weight may be given by a jury to a claim of privilege.” 233 Kan. at 626.
Here, the trial court was on notice that Hampton would likely invoke his Fifth Amendment privilege against self-incrimination. Despite this possibility, the trial court failed to ask Hampton or his attorney outside the presence of the jury whedier he would claim his Fifth Amendment rights. We find that the trial court erred in failing to admonish Hampton and his attorney not to invoke Hampton’s Fifth Amendment rights in the presence of the jury.
The trial court further erred in analyzing whether Hampton’s claim of Fifth Amendment privilege in the presence of the jury prejudiced Hampton. Rather, the trial court should have determined whether the claim of privilege prejudiced Simpson.
Cross-examination by the Trial Court
Simpson additionally contends that the trial court committed reversible error when it questioned him during surrebuttal and when it suggested that his written waiver be introduced into evidence as a handwriting exemplar. Although this issue may not have been properly preserved since Simpson failed to object to the trial court’s actions, this court has the power to consider the issue when “necessary to serve the interests of justice or to prevent a denial of fundamental rights.” See State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992).
Simpson’s surrebuttal testimony was aimed at countering the State’s evidence that Simpson was the individual who sold drugs to Officer Hatter and was stopped by Officer Cook after the sale. As noted previously, Officer Cook testified during the State’s case in chief that the individual he stopped after the drug sale produced both Kansas and Missouri driver’s licenses. During surrebuttal, however, Simpson testified that he had a Kansas identification card but did not have a Kansas driver’s license. The State introduced a Kansas driver’s license issued for Kappelle Simpson. Simpson testified that he was not the person depicted in the photograph on the Kansas driver’s license. The trial judge then interrupted cross-examination and asked Simpson if the signature on the Kansas identification card was his. Simpson stated that it was. When the State completed its cross-examination, the trial judge posed additional questions to Simpson:
“THE COURT: Mr. Simpson?
“THE WITNESS: Yes.
“THE COURT: Do you remember you wrote out a statement saying you’re willing to proceed to trial with 11 persons?
“THE WITNESS: Yes.
“THE COURT: Did you write that whole thing?
“THE WITNESS: Yes.
“THE COURT: Did you sign it?
“THE WITNESS: Yes.
“THE COURT: I’m going to have counsel approach.’.’
During the bench conference, the trial judge told counsel: “I’m going to have one of you mark that [Simpson’s written waiver] and offer it into evidence so they can study the signature.” The State then marked the waiver as an exhibit, and the trial court admitted it into evidence without objection from Simpson. By suggesting that the waiver be introduced into evidence, the trial judge gave the jury a mechanism to compare Simpson’s signature on the written waiver with the signature on the Kansas driver’s license.
A trial judge’s improper comments require a reversal of a conviction when it “affirmatively appear[s] that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.” State v. Nguyen, 251 Kan. 69, Syl. ¶ 4, 833 P.2d 937 (1992). However, the mere possibility of prejudice from a remark will not result in a reversal where an interpretation can reasonably be given to the remark that would render it unobjectionable. Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975).
Our Supreme Court, in discussing the role of the trial judge, has stated:
“In recognizing the right of a trial judge to cross-examine witnesses we have always coupled such recognition with words of warning. . . . [Wjhere the judge deems it necessary to cross-examine witnesses, he must exercise great care to prevent giving the juiy the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness and a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony. . . . These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice—in many cases without warrant in fact.” State v. Boyd, 222 Kan. 155, 158-59, 563 P.2d 446 (1977).
The Boyd court held that the trial court did not err in propounding a question tó a medical expert because the trial court did not assume the role of an advocate nor did the judge’s question prejudice the defendant. Moreover, the trial judge allowed both counsel to inquire further following the question and gave an instruction to the juiy that he did not intend, by any of his actions or remarks, to suggest how he would resolve the case. 222 Kan. at 159-60.
A more egregious statement by the trial court was addressed in State v. Chappell, 26 Kan. App. 2d 275, 987 P.2d 114, rev. denied 268 Kan. 890 (1999). The Chappell court found that the trial court committed reversible error when it commented on a witness’ veracity during an interrogation in the presence of the jury. The court found that the error was reversible because the case was closely balanced and because the trial court’s comments substantially prejudiced the defendant’s right to a fair trial. 26 Kan. App. 2d at 280.
Allegations of judicial misconduct must be decided based upon the surrounding facts and circumstances. State v. Stoops, 4 Kan. App. 2d 130, 132, 603 P.2d 221 (1979). Here, the surrounding facts and circumstances reveal that this was an extremely close case in which the jury was primarily required to weigh the evidence on identity. Accordingly, it was critical that the trial judge say nothing that would give the jury the impression that he believed Simpson was the individual who sold drugs to Officer Hatter on the evening in question. By questioning Simpson and suggesting that his waiver be introduced into evidence, the trial court improperly lent its exalted weight to the State’s theory of identity in a closely balanced case. Under these circumstances, the trial court’s questions during surrebuttal substantially prejudiced Simpson’s right to a fair trial.
Prejudicial Rebuttal Evidence
Next, Simpson argues that the trial court erred in allowing the State to introduce prejudicial rebuttal evidence. Simpson’s specific argument is that the trial court abused its discretion in allowing rebuttal evidence regarding the drug sales between Officer Hatter and Hampton. Simpson, however, failed to preserve this issue by making a contemporaneous objection.
“ ‘A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. [Citation omitted.]’ ” State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271 (1998).
Because Simpson failed to object to the evidence regarding drug sales between Officer Hatter and Hampton, this issue was not properly preserved for appeal.
Hearsay Evidence
Simpson additionally contends that the trial court erred in admitting a hearsay statement over his objection. The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
During Simpson’s trial, Officer Hatter testified that she had complained to Pittman about the amount of time it was taking Pittman’s drug connection to arrive with the drugs. Over Simpson’s objection, Hatter testified that Pittman said it would not take Love long to get there because Love lived with Hampton, who had sold crack to Hatter on previous occasions and had not taken much time to deliver the drugs. In response to Simpson’s' objection, the State argued that the statement was admissible as res gestae or as a statement in furtherance of a conspiracy. The trial court overruled Simpson’s objection without specifying a basis for the determination.
Later in her testimony, Hatter testified that “[o]n seven to eight different occasions it was necessary for me to surveil Mr. [Hampton] and in so doing, due to the fact that I’m assuming that they lived together, I saw Mr. Simpson several times during that surveillance.” The State had Hatter repeat the hearsay:
“Q. Now, who had told you that [Hampton] lived with Mr. Simpson?
“A. Ollie had told me that.
“Q. Oliver Pittman?
“A. Correct.”
On appeal, Simpson argues that Pittman’s statement was inadmissible as evidence in furtherance of a conspiracy. K.S.A. 60-460(i) provides, in part, as follows:
“As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination . . . .”
“Where the declaration has a hearsay quality and is admissible under this subsection as a hearsay exception, there must be evidence that a conspiracy actually existed.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(i), Comments, p. 255 (1979).
In State v. Bird, 238 Kan. 160, 175-76, 708 P.2d 946 (1985), our Supreme Court discussed five prerequisites for utilizing the co-conspirator hearsay exception:'
“(1) [T]he person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of tihe coconspirator must have been made while tire conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter.”
The Bird court went on to note that “even if all five of these elements are satisfied, the testimony is not admissible unless evidence, other than the proffered out-of-court statement, is already in the record which establishes a ‘substantial factual’ basis for a conspiracy between the defendant and the declarant. [Citations omitted.]” 238 Kan. at 176.
The evidence in this case showed that a conspiracy existed between Simpson and Pittman. Officer Hatter testified that Pittman charged $10 for brokering drug sales. Accordingly, Pittman’s statement that Simpson and Hampton lived together was in furtherance of the conspiracy between Simpson and Pittman because by telling Hatter who Simpson lived with, Pittman persuaded Hatter to wait for Simpson, thus earning Pittman $10 for brokering the sale.
Moreover, the five prerequisites noted in Bird are fulfilled in this case. First, the person testifying about the hearsay statement, Officer Hatter, was a third party. In addition, the out-of-court statement was made by a coconspirator, Pittman, and was made outside Simpson’s presence. Moveover, the statement was made while the conspiracy was in progress. Furthermore, the statement was relevant to the conspiracy because, by making the statement, Pittman was attempting to persuade Officer Hatter to wait so that the drug sale could be completed. Finally, the independent factor of whether evidence, other than the proffered out-of-court statement, was already in the record which established a substantial factual basis for the conspiracy between Simpson and Pittman, is also fulfilled. Before her testimony regarding the hearsay statement, Officer Hatter testified that she had spoken with Pittman and arranged a drug purchase with Simpson.
As a result, the trial court did not err in admitting into evidence Pittman’s out-of-court statement that Simpson and Hampton lived together because the hearsay statement was admissible as a statement in furtherance of a conspiracy.
Jury Instruction on Eyewitness Identification '
Simpson argues that the trial court erred in failing to instruct the jury on eyewitness identification. However, Simpson did not object to the trial court’s failure to give the eyewitness identification instruction. As a result, our standard of review is whether the failure to give the instruction was clearly erroneous. “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Simpson claims that because identification was a critical issue of the case, the trial court was obligated to give PIK Crim. 3d 52.20 (1999 Supp.) on eyewitness identification. The instruction reads as follows:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness.”
Factors that may be considered in weighing eyewitness identification testimony include the witness’ opportunity to observe, whether the witness observed the defendant on earlier occasions, and the witness’ emotional state. PIK Crim. 3d 52.20 (1999 Supp.).
In State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), our Supreme Court set forth rules of law applicable to facts attending eyewitness identification. The Warren court noted that if “eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” 230 Kan. at 397.
Here, the factual circumstances warranted a cautionary instruction on eyewitness identification. Officer Hatter testified that she saw the individual who sold her drugs on November 20, 1998, for only 60 seconds. In addition, Officer Hatter testified that the first time she saw the individual she later identified as Simpson was November 20, 1998. Moreover, Officer Hatter witnessed the suspect in a dimly lit kitchen while the individual’s facial features were obstructed by a cell phone and a hat. Furthermore, Officers Hatter and Cook both indicated that they did not notice whether the suspect had any gold teeth. Simpson has numerous gold teeth. In addition, Officer Hatter may have been nervous during the drug sale because it took Love, who was previously identified as Simp son, a long time to arrive with the drugs, because she did not have money to pay Pittman for brokering the deal, and because several drug buyers were in the apartment during the sale.
Because identification of Simpson was a key issue in this case, the trial court’s failure to give PIK Crim. 3d 52.20 (1999 Supp.) left the jury without the guidance necessary to judge the evidence in this case. We find a real possibility that the jury would have rendered a different verdict had the trial court instructed on eyewitness identification. As a result, the trial court’s failure to instruct on eyewitness identification was clearly erroneous.
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Rulon, C.J.:
Plaintiff Brett Aten appeals the district court’s affirmance of the administrative suspension of his driver’s license for 1 year after finding that plaintiff had operated a motor vehicle under the influence of alcohol. We affirm.
The material facts are as follows:
In September of 1999, Kansas Highway Patrol Trooper Rob Istas noticed a vehicle cross over the center line of the highway and swerve back into the proper lane. After stopping the vehicle, Trooper Istas confirmed the plaintiff was the driver and was under age 21.
Based on Trooper Istas’ observations and the plaintiff s performance of the field sobriety tests, the plaintiff was arrested for driving under the influence of alcohol. Trooper Istas then read plaintiff the DC-70 form printed by the Kansas Department of Revenue (KDR), which includes both the general implied consent advisory and the advisory for drivers under the age of 21. The plaintiff consented to a breath test, which revealed a breath alcohol concentration of .113. Trooper Istas completed the test failure portion of the DC-27 form and mailed it to KDR. At trial, Trooper Istas testified the advisories were read prior to tire administration of the breath test.
The plaintiff sought an administrative hearing regarding the officer’s assessment that plaintiff had been driving under the influence of alcohol. After a hearing, the administrative officer found that Trooper Istas had possessed reasonable grounds to believe plaintiff was under the influence of alcohol, drugs, or both, and the plaintiff was arrested on those grounds. The hearing officer further found that plaintiff received the applicable implied consent advisories; the testing equipment was reliable; and the test result indicated plaintiff s breath alcohol concentration was above .08 percent.
Consequently, the hearing officer ordered the plaintiff s driving privileges suspended for 1 year. Ultimately, plaintiff filed the present action, alleging that Trooper Istas lacked reasonable grounds to believe the plaintiff was operating the vehicle under the influence of alcohol or drugs, and the officer failed to properly advise the plaintiff in a timely manner of the law governing implied consent.
Eventually, the district court found that Trooper Istas properly read both advisories as required by law and that, although the advisories might be confusing, plaintiff was not prejudiced by the officer’s conduct. The district court stayed plaintiff s suspension pending appeal to this court.
As a preliminary matter, the defendant contends plaintiff s sole issue is not properly before this court on appeal. The defendant asserts that plaintiff s argument, alleging the implied consent advisories are unconstitutionally vague, is raised for the first time on appeal and should not be considered. While the defendant states the general rule, see Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995), there is an exception to the rule where consideration of the issue is necessary to further justice or prevent the denial of fundamental rights. See State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). Because plaintiff s vagueness argument challenges the due process afforded to plaintiff, this court can properly consider the plaintiff s constitutional arguments, especially as those arguments are integrally related to arguments that were raised before the district court. See State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). Unquestionably, one of the limited issues in administrative suspension cases is whether the appropriate advisories were given.
Prior to analyzing the appropriateness of the officer s conduct in this case, this court must determine whether the law requires only one of the advisories, or both, to be read. If an inappropriate advisory was given, the remedy is suppression of the test results. See State v. Luft, 248 Kan. 911, 913, 811 P.2d 873 (1991). The general implied consent advisory and the implied consent advisory for drivers under the age of 21 state the requirements of K.S.A. 2000 Supp. 8-1001 and K.S.A. 2000 Supp. 8-1567a. As we understand, the plaintiff s objection to the advisories is that the statutes are inconsistent. Interpretation of a statute is a question of law over which this court has unlimited review. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
One of the fundamental principles of statutory construction is that the entire act in which a challenged provision lies must be considered in attempting to determine legislative intent. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
Examining the plain language of K.S.A. 2000 Supp. 8-1567a, the legislature clearly intended this statute to be read in conjunction with the existing provisions, including K.S.A. 2000 Supp. 8-1001.
K.S.A. 2000 Supp. 8-1567a provides in pertinent part:
“(b) Whenever a law enforcement officer determines that a breath or blood alcohol test is to be required of a person less than 21 years of age pursuant to K.S.A. 8-1001 ... in addition to any other notices required by law, the law enforcement officer shall provide written and oral notice that: ... (2) if the person is less than 21 years of age at the time of the test request and submits to and completes the test or tests and the test results show an alcohol concentration of .02 or greater, the person’s driving privileges will be suspended for one year.” (Emphasis added.)
K.S.A. 2000 Supp. 8-1001(f)(1)(G) provides:
“Before a test or tests are administered under this section, the person shall be given oral and written notice that: ... if the person is less than 21 years of age at the time of the test request and submits to and completes the tests and the test results show an alcohol concentration of .08 or greater, the person’s driving privileges will be suspended up to one year.” (Emphasis added.)
We conclude the above statutes are not in conflict. K.S.A. 2000 Supp. 8-1567a was designed to cover conduct not previously covered in K.S.A. 2000 Supp. 8-1001 and K.S.A. 2000 Supp. 8-1567. K.S.A. 2000 Supp. 8-1567a does not discuss the applicable penalties for a person under the age of 21 who operates a vehicle with a breath or blood alcohol concentration exceeding .08 percent, but only discusses the penalties associated with a concentration of .02 to .08 percent. See K.S.A. 2000 Supp. 8-1567a (d), (f), and (h).
K.S.A. 2000 Supp. 8-1001 is designed to apply where the breath or blood alcohol concentration of any driver exceeds .08 percent, and K.S.A. 2000 Supp. 8-1567a is designed to apply to drivers under the age of 21 whose breath or blood alcohol concentration while operating a motor vehicle is between .02 and .08 percent.
Because an officer cannot determine, prior to testing, whether a driver under age 21 may be driving with a breath or blood alcohol concentration of .02 to .08 percent or if that driver may be driving with a breath or blood alcohol concentration greater than .08 percent, the officer is required to give implied consent advisories that cover both of these situations. Even though the provisions apply to different concentrations of alcohol, such provisions are not in conflict with one another.
Arguably, the penalties associated with the different administrative offenses appear to be incongruous in that a person under the age of 21 seemingly may receive a suspension of less than 1 year for operating a vehicle with a breath or blood alcohol concentration exceeding .08 percent, while a person under the age of 21 who operates a vehicle with a breath or blood alcohol concentration of between .02 and .08 percent faces a mandatory suspension of 1 year. Appellate courts should not perform the function of a judicial blacksmith to change duly enacted legislation but, instead, seek to construe and implement the law as passed by the legislature. Here, the legislature enacted statutory provisions which permit the State to suspend the license of a driver under the age of 21 who has operated a vehicle with a breath or blood alcohol concentration exceeding .08 percent for “up to one year,” while mandating a suspension of one year for a driver under the age of 21 who has a breath or blood alcohol concentration between .02 and .08 percent.
The applicable implied consent advisory forms promulgated by the Kansas Department of Revenue reflect the current status of the law. If the current status of the law does not reflect the intent of the legislature in enacting the 1999 amendments to 8-1001 and 8-1567a, future sessions of the legislature have the prerogative and the authority to alter the law to reflect such intent.
The plaintiff argues the inconsistencies inherent in the applicable statutory provisions are confusing, possibly leading a driver under the age of 21 to mistakenly believe that his or her license would be suspended for a shorter amount of time than 1 year. To the contrary, assuming an officer read both versions of implied consent advisories, any person under the age of 21 would be notified of the possibility of a 1-year suspension of his or her driving privileges.
Here, the plaintiff was not prejudiced by any incongruities within the statutes. A reasonable person cannot mistake the prohibited conduct under the statutes and may easily comprehend the maximum penalty for committing the proscribed conduct. The challenged statutory scheme is not unconstitutionally vague. See DPR, Inc. v. City of Pittsburg, 24 Kan. App. 2d 703, 717, 953 P.2d 231, rev. denied 264 Kan. 821 (1998) (citing State v. Neighbors, 21 Kan. App. 2d 824, 826, 908 P.2d 649 [1995]).
We conclude the district court did not err in rejecting the plaintiff s argument that he was impermissibly confused by the two implied consent advisories.
In a cross-appeal, the defendant contends plaintiff is estopped from raising confusion as a defense to administrative suspension because the plaintiff s version of the facts indicates the plaintiff was not read the advisories until after the test was conducted.
In light of the foregoing analysis, this issue is moot. See Graves v. State Board of Pharmacy, 188 Kan. 194, 197, 362 P.2d 66 (1961) (Ordinarily when the only relief sought and the need for that relief has ceased to be a justiciable issue, an appellate court will not consider or decide the mooted issue, whether one of law or fact).
Affirmed. | [
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Knudson, J.:
The State appeals from the trial court’s order granting Herbert E. Downey a new trial after his convictions of rape and two counts of aggravated criminal sodomy. The State contends the trial court did not comply with the mandate of the Court of Appeals issued in State v. Downey, 27 Kan. App. 2d 350, 2 P.3d 191, rev. denied 269 Kan. 936 (2000). Downey counters that the trial court has the inherent and statutory authority to grant a new trial and its order is not subject to interlocutory appeal by the State.
We conclude the trial court did not comply with the mandate issued in Downey and the Court of Appeals has jurisdiction to enforce compliance with its mandate. Accordingly, the trial court’s order granting a new trial is set aside, and we again remand for strict compliance with the Downey mandate.
The underlying facts of the criminal case are adequately addressed in Downey and need not be repeated in detail. One of the issues raised by Downey on direct appeal was whether the trial court erred in overruling his pretrial motions to suppress photo graphs and a confession. The Court of Appeals refused to consider Ore issue because there was no contemporaneous objection lodged at trial. 27 Kan. App. 2d at 360-61. Importantly for purposes of this appeal, the Downey court tacitly considered tire defendant’s claim of manifest injustice when it observed that the State had made a pretrial agreement with Downey allowing for the preservation of the suppression issues for appeal. The court rejected this claim, stating:
“The parties, however, are precluded from devising their own rules of evidence. See 29 Am. Jur. 2d, Evidence § 8, p. 65 (‘[Pjarties cannot by contract control or modify the law of evidence, and any attempts in that direction are invalid, and not binding upon the parties or the court.’). If this court were to accept the parties’ allegation that under the terms of the stipulation Downey preserved certain issues for appeal, then our rules of evidence, specifically K.S.A. 60-404, would be meaningless. . . .
Nothing short of an objection at the time evidence is offered satisfies this requirement. See State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989). Because Downey did not renew any objection to the photographs and confession when the State presented evidence of such in the stipulation, Downey has not preserved these issues for appeal.” 27 Kan. App. 2d at 361.
After considering other trial issues raised by Downey, the court affirmed his convictions for rape and two counts of sodomy. However, the court did find that an illegal sentence was imposed and remanded for resentencing. After the Supreme Court denied Downey’s petition for review, the mandate of the Court of Appeals was issued.
Upon remand, Downey filed a motion to set aside his convictions, contending he was “ uninformed, . . . defrauded, or victimized’ ” in entering his stipulations, which was “encouraged and sanctioned” by his defense counsel, the prosecution, and the trial court. He also filed a motion for sentencing departure. Downey later filed a “Second Motion to Set Aside Conviction,” contending counsel misled him into stipulations by misstating the appropriate sentencing range.
At the hearing on the motions, the trial court heard testimony from Joseph McCarville, who represented Downey at the original trial, and Judge Timothy J. Chambers, who was the Reno County prosecutor at the original trial. Following the testimony, there was a lengthy discussion between court and counsel as to whether the trial court had jurisdiction to go beyond the mandate of the appellate court. The court recognized that the motions were outside the 10-day window for a new trial as provided in K.S.A. 22-3501 and inquired if Downey was suggesting review under K.S.A. 60-1507. Downey s counsel made clear no such claim was being advanced. Finally, after further rather confusing colloquy, Downey’s counsel informed the court an order arresting judgment was being sought. The trial court then sustained the motion to arrest judgment under K.S.A. 22-3502 and set aside Downey’s convictions and gave the parties a new date for jury trial. This set the stage for the State’s appeal.
Downey filed a motion with this court to dismiss the appeal, arguing the State lacks a statutory basis for the appeal. This court denied the motion to dismiss, electing to set the case on an expedited special docket. The court also granted the State’s motion to stay the jury trial pending a decision on appeal.
We have determined the controlling issues on appeal to be: (1) Does this court have jurisdiction to enforce compliance with its mandate; and (2) Did the trial court have jurisdiction to grant a new trial in derogation of the mandate?
During oral argument upon Downey’s motions there was an extended circuitous discussion between the court and counsel as to the nature of relief sought and whether the State would have the right to file an interlocutory appeal. Ultimately, at the invitation of Downey’s counsel, the trial court granted relief under K.S.A. 22-3502, as an arrest of judgment. This decision afforded the State an opportunity to file an interlocutory appeal under K.S.A. 2000 Supp. 22-3602(b)(2).
An arrest of judgment is permitted only if the complaint “does not charge a crime or if the court was without jurisdiction of the crime charged.” K.S.A. 22-3502. Additionally, such a motion must “be made within 10 days after the . . . finding of guilty, ... or within such further time as the court may fix during the 10-day period.” K.S.A. 22-3502. Clearly, the trial court erred in granting a new trial to Downey under K.S.A. 22-3502.
We next consider whether the trial court could have granted Downey relief under K.S.A. 22-3501, which reads in material part:
“(1) The court on motion of a defendant may grant a new trial to him if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entiy of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.”
By its express language, K.S.A. 22-3501 is not applicable. Downey does not allege newly discovered evidence, and the “any other grounds” proviso requires a motion within 10 days after the finding of guilty.
Finally, an untimely motion, pursuant to K.S.A. 22-3501, may be deemed a petition for relief under K.S.A. 60-1507. See State v. Bradley, 246 Kan. 316, 318-19, 787 P.2d 706 (1990). However, even if treated as a 60-1507 motion, the State would have the right to appeal. Supreme Court Rule 183(k) (2000 Kan. Ct. R. Annot. 210).
On appeal, Downey concedes the trial court could not have granted relief under K.S.A. 22-3502. He then suggests the court’s action comes closest to meeting the requirements of K.S.A. 22-3501 and the State has no right of appeal. We do not agree for the reasons stated—the trial court could not grant Downey relief under any of the above statutes. We hold that the trial court’s erroneous order was entered under K.S.A. 22-3502 and the State’s interlocutory appeal was proper under K.S.A. 2000 Supp. 22-3602(b)(l).
Alternatively, for die reasons that follow, we believe the Court of Appeals has the inherent authority to assert continuing jurisdiction to enforce its mandate. See K.S.A. 60-2106(c). We will not be diverted from this responsibility by an amorphous argument that the unauthorized action of the trial court may circumvent the mandate that has been issued. Such a result would lay waste to the law of the case doctrine as hereafter explained.
The trial court’s jurisdiction upon remand is limited to compliance with the mandate from the Court of Appeals in Downey. The trial court must proceed in accordance with the mandate and the law of the case as established on appeal. State v. Collier, 263 Kan. 629, Syl. ¶ 4, 952 P.2d 1326 (1998). The mandate compelled the trial court to resentence Downey; nothing more, nothing less.
Other states have consistently limited a trial court’s jurisdiction upon remand. In Lynch v. State, 587 So. 2d 306, 307 (Ala. 1991), the Alabama Supreme Court remanded a conviction of second-degree robbeiy to the Court of Criminal Appeals. The Court of Criminal Appeals then reversed the conviction and remanded for new trial based on a different issue. The Supreme Court found the Court of Appeals’ reversal went beyond the mandate of the remand order. The Supreme Court held the trial court’s duty is to comply with the appellate mandate, carrying out its intent and meaning as determined by the directions of the reviewing court. On remand, a lower court is not free to address issues other than those identified in the remand order. 587 So. 2d at 307-08.
In State v. Ballom, 678 So. 2d 53, 54 (La. App. 1996), the Court of Appeals vacated a sentence and remanded for resentencing. The defendant then requested a motion for new trial, which the trial court granted. Upon an appeal by the State, the Court of Appeals found the trial court had failed to comply with the mandate requiring resentencing and reversed the new trial. 678 So. 2d. at 55.
In State v. Jefferson, 31 S.W.3d 558, 559 (Tenn. 2000), the Court of Appeals affirmed a conviction but remanded the matter for re-sentencing. On remand, the defendant requested a motion for a new trial, which was denied, and the defendant appealed. The Tennessee Supreme Court found the remand order was issued in error because the Court of Appeals should have found the jury was instructed pursuant to a statute already found unconstitutional and should have remanded for a new trial. 31 S.W.3d at 561. The Supreme Court determined, however, that the trial court was bound by the doctrine of the law of the case and was limited to the sole issue of resentencing. 31 S.W.3d at 560. The court acknowledged that the law of the case does not govern if it results in manifest injustice. 31 S.W.3d at 561. The court examined the record to conclude the evidence overwhelmingly supported the conviction, and manifest injustice did not exist to defeat the doctrine of the law of the case. 31 S.W.3d at 562.
We recognize that if applying the law of the case doctrine results in manifest injustice, a court may depart from a previous holding. See State v. Collier, 263 Kan. 629, Syl. ¶ 3. Downey argues that the law of the case results in manifest injustice and the extraordinary relief of a new trial was, therefore, appropriate. This is a circular argument. We have already explained that there were no material facts presented to the trial court upon remand that were not fully considered on direct appeal. The Downey panel tacitly concluded that, notwithstanding the agreement between the parties, the contemporaneous objection rule was applicable and failure to interpose a timely objection to admissibility of the evidence precluded appellate review. 27 Kan. App. 2d at 361. Consequendy, the trial court’s order was wholly inconsistent with the findings and conclusions of the Court of Appeals. Additionally, the trial court’s order granting a new trial defies proportionality. The wrong sought to be addressed was denial of appellate review of suppression orders; the trial court’s remedy would be to set aside Downey’s convictions notwithstanding the trial court’s explicit finding that the suppression orders were correct. We conclude the law of the case doctrine precludes the action taken by the trial court.
We have considered all of the other claims and arguments advanced by Downey and conclude each is without legal merit. Our decision does not mean Downey is left without an appropriate remedy. See K.S.A. 60-1507.
Reversed and remanded with directions for resentencing pursuant to the previous mandate of this court. | [
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RULON, C.J.:
Defendant Alfonzal Jones appeals his conviction for burglary, arguing that the prosecution presented insufficient evidence to support his conviction and that juror misconduct deprived him of a fair trial. We affirm.
The essential facts are undisputed and are as follows:
Returning home during the early morning hours of February 22, 1997, Rogelio Villanueva and his wife observed a stranger leaving their driveway. They noticed the stranger was looking into cars that were parked on the street; then Mrs. Villanueva noticed that the window of their Cadillac, parked in the driveway, was shattered. Rogelio asked his wife to call the police while he grabbed his handgun to confront the stranger.
By the time Rogelio emerged from the house, the stranger could no longer be seen, so Rogelio began to drive around the neighborhood looking for him. Rogelio found the stranger, who was subsequently identified as the defendant, a short distance from Rogeho’s home, still looking into parked cars. Rogelio confronted the defendant, demanding that the defendant pay for his broken window. The defendant offered $50, which Rogelio refused. Eventually, Rogelio transported the defendant back to Rogelio’s home and awaited the arrival of tire police.
When interviewed by the police, the defendant consistently maintained that he did not break into the Cadillac. A screwdriver was found in his possession. Police theorized that the screwdriver may have been used to scratch the steering column of the Villanuevas’ car.
The State charged the defendant with burglary, in violation of K.S.A. 21-3715(c), of which charge the defendant was subsequently convicted.
The defendant contends that he cannot be convicted of burglary of a motor vehicle under K.S.A. 21-37l5(c) when the theft intended was of the same motor vehicle.
As charged in this case, burglary involves “knowingly and without authority entering into or remaining within any: . . . (C) motor vehicle . . . with intent to commit a felony, theft or sexual battery therein.” K.S.A. 21-3715(c).
The defendant argues that by including “therein” within the statutory definition of the offense, the legislature distinguished an intent to commit a theft of a vehicle from the intent to enter a vehicle with the intent to commit some other crime. Essentially, the defendant contends that, because the entry of the vehicle was a necessary part of the theft of the vehicle, the “burglary” of the vehicle merges with the ultimate intent to commit a theft of the vehicle.
Whether a person may be convicted for burglary of a vehicle when the underlying crime supporting an essential element of the offense is the theft of the vehicle has not been addressed in Kansas.
Criminal statutes are to be strictly construed, which includes giving ordinary words their ordinary meaning. See Matjasich v. State Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001); State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). “[T]herein” means simply “in that place” or “in that circumstance or respect.” Webster’s II New Riverside University Dictionary 1200 (1988).
K.S.A. 21-3107 provides, in pertinent part:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
While distinguishable from the present case, State v. Hill, 10 Kan. App. 2d 607, 610, 706 P.2d 472 (1985), provides a useful insight into the particular question presented on this appeal. In Hill, the defendant was charged with burglary of a vehicle with the intent to steal the T-tops from the vehicle and with the theft of those T-tops. Rejecting the defendant’s argument that proof of the theft necessarily proved the commission of the burglaiy, and therefore the charges were multiplicitous, this court held:
“Proof of an unlawful entry was required to establish a burglary but no such proof was required to show a theft. While it may be true that someone had to enter the car before the T-tops could be stolen, the prosecution did not have to establish that the defendant was the person who did so in order to establish that he committed the charged theft. Similarly, it was not incumbent upon the State to show that defendant took actual control over the T-tops in order to establish the commission of a burglary. Thus, the separate charges for both burglary and theft were not multiplicitous and the trial court did not err in refusing to dismiss one of the charged offenses.” Hill, 10 Kan. App. 2d at 610-11.
Again, Hill is distinguishable because the defendant was taking a part of the car and not the entire car. However, the reasoning of the opinion is instructive because of this court’s focus upon what the prosecution was required to prove. As in Hill, here, the evidence demonstrated that the defendant was required to enter the vehicle to effect the intended crime. The Hill court did not focus upon what the evidence demonstrated, but what the prosecution was required to prove for each offense.
As a practical matter, the defendant in Hill, as well as the defendant here, was required to enter the vehicle without authority in order to effect his intent to steal a vehicle, in whole or in part. Yet, the nature of the defendant’s entry into the vehicle was not an essential element the prosecution was required to prove to convict the defendant of theft or attempted theft. Burglary and theft or attempted theft of a motor vehicle are complete and distinct crimes, and the fact that one necessarily precedes the other does not demonstrate a merger of the offenses any more than a burglary of a house, although necessary to the completion of some offense inside the house, merges with that offense upon its completion.
We conclude, under Kansas law, that the defendant can properly be charged and convicted of burglary for entering a motor vehicle without authority with the intent to commit a theft of that motor vehicle. The jury’s verdict was supported by sufficient evidence, and the conviction should be affirmed.
The defendant further contends he was deprived a fair trial due to juror misconduct in exerting undue pressure upon members of the jury who were in favor of acquittal. Upon review of a trial court’s failure to grant the defendant a new trial based upon juror misconduct, the defendant bears the burden of proving that the misconduct substantially prejudiced his or her right to a fair trial. See State v. Hammon, 245 Kan. 450, 456, 781 P.2d 1063 (1989).
The alleged misconduct in this case pertained to a letter from a juror which claimed that members of the jury had coerced her into changing her vote and finding the defendant guilty of the charged offense.
As an initial matter, testimony concerning a juror’s mental processes is inadmissible to attack a verdict under K.S.A. 60-441. See State v. Franklin, 264 Kan. 496, 498-99, 958 P.2d 611 (1998). The letter introduced by defense counsel and read into the record by the district court contains nothing but statements concerning a particular juror’s mental processes. The juror in essence complains that she found the evidence inadequate to convict the defendant. Importantly, the juror does not complain that other members of the jury used improper or undue methods of persuading her to change her opinion.
Undoubtedly, when a juror is in the minority, the majority will attempt to convince the minority to change its opinion. An attempt to persuade a person to vote differently than he or she feels may seem somewhat coercive, but an attempt to convince a minority member of the jury of the error of a position, while perhaps uncomfortable for the minority member, does not constitute juror misconduct.
Without proof of improper and undue coercion, the fact that a juror contends that he or she was obligated to vote against his or her better judgment demonstrates only that that particular juror is having second thoughts about the verdict. This is not a sufficient basis to order a new trial. See State v. Johnson, 27 Kan. App. 2d 921, 929, 11 P.3d 67, rev. denied 270 Kan. 901 (2000).
The defendant did not prove that he was prejudiced by juror misconduct, and the district court did not err in denying the defendant’s motion for a new trial.
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Knudson, J.:
In this post-divorce proceeding, L.T. Watson (petitioner) appeals the district court’s interpretation of the separation agreement entered into by petitioner and her husband, T.S. Watson (respondent), during the pendency of their divorce. The court found the parties’ agreement as incorporated in the final decree was unambiguous and contemplated that the responsibility for any capital gains tax liability generated by the sale of certain stock in Coca-Cola Enterprises, Inc., would be shared equally by the parties.
The court’s ruling was based upon the doctrine of species of common ownership in marital property as explained in Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978), and subsequent cases of the Kansas Supreme Court. We affirm the trial court’s decision, although our analysis differs.
The Underlying Circumstances
The respondent is a well-known and highly successful professional golfer. Assured Management Company (AMC) has managed the financial affairs of the Watsons for many years. The petitioner’s brother, Charles E. Rubin, is a principal of AMC. Among the parties’ assets was respondent’s 84 percent beneficiary interest in an inter vivos trust holding 374,846 shares of common stock of Coca-Cola Enterprises, Inc. Rubin was the sole trustee and another beneficiary. On July 8,1998, Rubin sold the stock for $14,251,176. The share of the proceeds attributable to the beneficial interest held by respondent was $11,942,475. The capital gains tax approximates $3,000,000.
Petitioner filed this divorce action on December 15, 1997. Throughout the divorce, the parties were each represented by skilled and respected attorneys. AMC prepared a marital balance sheet disclosing the parties’ assets, liabilities, and net worth as of June 30, 1998. That balance sheet was made an exhibit to the parties’ separation agreement, which was signed on September 16, 1998,—not so coincidentally, the same date their divorce was granted and the agreement approved and incorporated into the decree by the district court.
The relevant sections of the separation agreement state:
“III. DIVISION OF NET WORTH
“4. Assets to be Divided Equally in Kind. That the following assets shall be divided equally in kind between the parties:
“Commerce Bank Checking (and all other bank or other financial institution accounts . . . ).
“ ‘Investments1 (as denominated in the accounting by Assured Management Company [and] as shown on tire attached Exhibit 1) . . . .
TV. MISCELLANEOUS
“1. 1998 Federal and State Income Tax Returns. The parties shall file separate federal and state income tax returns for 1998 ....
“4. Role of Assured Management Company. That unless otherwise agreed upon by the parties, the determination of federal and state income taxes attributable to unrecognized capital gains (net of unrecognized capital losses), and the mechanics of effectuating divisions of the parties’ assets agreed to herein, shall be determined and handled by Assured Management Company.”
Exhibit 1 referred to in § III, ¶ 4 of the parties’ separation agreement is the parties’ balance sheet of June 30, 1998, prepared by AMC. The Coca-Cola stock is listed on that balance sheet as an investment with a fair market value of $1,557,141.28. It is fair to say the parties negotiated their settlement based upon the financial information given in exhibit 1.
At the divorce hearing before the trial judge, the petitioner presented uncontested evidence to satisfy the district court that a divorce should be granted and the parties’ separation agreement approved. The judge granted the divorce and then stated:
“I’ve reviewed [the separation agreement], and on its face it appears to comprehensively dispose of the assets and liabilities of the parties in a fair and equitable manner. It appears to have been done so after full disclosure of those assets and liabilities. And based upon that, I’ll approve that and incorporate that into the Court’s decree of divorce.”
When the court was finished with its rulings, counsel was asked if there was anything further. The following discussion then occurred:
“MR. JOHNTZ [counsel for petitioner]: Judge, now that you’re mentioning that, the—actually, believe it or not, the net worth of the parties increased the month after in July with a capital gain, increasing it from what may show there, around 20 some, to close to, I think after tax, maybe 35. Since you made reference to that—it’s basically from a [In re Marriage of Kirk, 24 Kan. App. 2d 31, 941 P.2d 385, rev. denied 262 Kan. 961 (1997),] independent decision, let me disclose that. But let me say also, essentially, since the matter provides for a 50/50 division of everything, it’s really not technically relevant, but it is entirely different than that before you.
“MR. WAXSE [counsel for respondent]: That’s a correct statement.
“THE COURT: It’s a rising tide.
“MR. JOHNTZ: And interestingly, Judge, it was not one of the rising tides that then came back down because the—as luck would have it, again, the asset got sold and so the capital gain was locked in.
“THE COURT: I suspect a little more than luck involved in that. In any event, I think it’s a fair and equitable distribution. I’ll approve it.” (Emphasis added.)
Subsequently, pursuant to § III, ¶ 4 of the parties’ agreement, AMC divided the Coca-Cola proceeds equally between the parties, with no funds retained to pay capital gains taxes.
Because the stock had been held by an inter vivos trust with respondent as beneficiary, his Form 1099 reflected all of the parties’ taxable gain from sale of the stock. Petitioner has denied that she is in any way responsible for paying her proportionate share of the capital gains tax. Respondent contends the agreement, together with the statements of counsel at the divorce hearing, demonstrate the parties’ mutual intent to divide the proceeds from sale of the stock equally after taxes. Petitioner argues that the separation agreement provides unambiguously that she was entitled to one-half of the monies in the parties’ account and that each of the parties is to pay his or her own income taxes for 1998. She defines the entire amount due for the capital gain on the Coca-Cola stock as respondent’s liability.
After considering the arguments of counsel, the trial court stated in its ruling:
“Petitioner correctly observes that the language in the separation agreement is clear and unambiguous in that the ‘investments’ are to be equally divided between the parties and each is to file his or her separate income tax returns for 1998, the year in which the gain was realized. However, that observation begs the question of who, in fact, realized the gain upon which taxes were to be paid. Thus, the issue is not the interpretation of the contract, but rather an independent legal determination as to the ownership of the trust assets at the time they were sold and the gain realized.
“Under Kansas law the filing of the petition in this case created a species of common or co-ownership in the trust property. The extent of that ownership had to await the determination by the court in its approval of the separation agreement. Here, the trust assets were sold before the entry of the divorce decree. However, at the time of the filing of the divorce action, and at the time of the sale, the parties were co-owners of the trust assets; and they ultimately agreed, and the court ordered, that each should receive one-half of the trust assets or, in this case, the proceeds from the sale of those assets.
“Cady and [In re Marriage of Smith, 241 Kan. 249, 737 P.2d 469 (1987),] control this case. The trust assets, although titled to the respondent, were held in a species of common or co-ownership with petitioner. Therefore, petitioner was co-owner of the trust assets at the time of their sale. Since the sale of the trust assets was a taxable event, as a co-owner petitioner recognized a gain on the transaction to the extent of her proportional interest in the sale proceeds. Therefore, in accordance with ¶ IV. 1, petitioner is liable for the tax on her one-half of the gain.”
L.T.’s motion to alter or amend was denied and a timely appeal has been filed contesting the trial court’s subject matter jurisdiction and application of the species of common ownership concept requiring petitioner to pay one-half of the capital gains tax that is owed.
. Subject Matter Jurisdiction
L.T. contends the trial court was without subject matter jurisdiction to decide “petitioner is hable for the tax on her one-half of the gain.” L.T. argues that who should pay the capital gains tax is a federal question not to be resolved in a state proceeding. Our standard of review on jurisdictional questions is unlimited. See In re Marriage of Killman, 23 Kan. App. 2d 975, 976, 939 P.2d 970 (1997), rev’d on other grounds 264 Kan. 33, 955 P.2d 1228 (1998).
T.S. counters that the trial court did not determine the federal question of personal income tax liability for either party. Upon L.T.’s motion to alter or amend, the trial court clarified its ruling, stating:
“I’m not suggesting and not ordering that one party pay to the other party anything or pay to the federal government anything. The parties are going to file their own tax returns based on however they think they—they can support it and this I’m sure will be some evidence as to—as to which is the correct interpretation.”
In Cady, 224 Kan. at 341, the court stated:
“Under federal tax statutes a taxable transfer presents a question controlled by federal law. State law may control only in [the] event the federal tax law, by express language or necessary implication, makes operation of the tax law dependent upon state law. (Lyeth v. Hoey, 305 U.S. 188, 83 L. Ed. 119, 59 S. Ct. 155 [1938].) Where state law controls, federal courts must ascertain and apply state law. (Hud dleston v. Dwyer, 322 U.S. 232, 88 L. Ed. 1246, 64 S. Ct. 1015 [1944].) The field of domestic relations belongs exclusively to the state. (McCarty v. Hollis, 120 F.2d 540 [10th Cir. 1941].)”
We are persuaded the trial court acted within its jurisdiction. The trial court decided L.T.’s legal interest in the Coca-Cola stock at the time of sale; that was an issue appropriately decided under state law. Certainly our conclusion is bolstered by the trial court’s explanation of its order. We conclude L.T.’s jurisdictional claim to be without legal merit.
Species of Common Ownership
(a) K.S.A. 23-201(b)
Both parties have vigorously argued whether K.S.A. 23-201(b) is applicable and dispositive. We do not read the district court’s decision to rely upon K.S.A. 23-201(b); instead, the court relied upon common-law development of the doctrine of a species of common ownership in marital property, which arises upon the filing of a divorce action.
K.S.A. 23-201(b) states:
“(b) All property owned by married persons, . . . whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce .... Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
K.S.A. 23-201(b) did not alter preexisting common law. It merely emphasized that, under Kansas law, each divorcing spouse has an ownership interest in all marital property and any transfer of such property between them to effectuate a fair, just, and equitable properly division is a transfer between co-owners. See Smith, 241 Kan. at 252; 1 Elrod & Buchele, Kansas Family Law § 4.23 (1999). This emphasis was needed because the Internal Revenue Service (IRS) had earlier sought to treat such transfers as gain-generating and thus taxable. See United States v. Davis, 370 U.S. 65, 67-69, 8 L. Ed. 2d 335, 82 S. Ct. 1190, reh. denied 371 U.S. 854 (1962). K.S.A. 23-201(b) adds nothing to either side’s argument that cannot be gleaned from an examination of Kansas common law on the doctrine of a species of common ownership.
(b) The Common-law Concept
The decision of the Kansas Supreme Court in Cady was also in response to Davis, 370 U.S. at 68-69. In Cady, a provision of the property settlement agreement required the husband to transfer corporate stock held in his name to the wife. After the divorce, the IRS assessed a substantial income tax deficiency against the husband, arguing the divorce had effected a taxable transfer of property. The Cady court stated:
“Prior to the filing of a petition for divorce a spouse may dispose of his or her personal property without regard to the other spouse. [Citations omitted.] At that time a spouse possesses only an inchoate interest in real estate held by the other spouse. [Citation omitted.] The filing for divorce, however, has a substantial effect upon the property rights of the spouses. At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or jointly held. The court is obligated to divide the property in a just and equitable manner, regardless of the title or origin of the property. [Citations omitted.]
“We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spouse to convey, sell or give away such property.” 224 Kan. at 344.
The common-law doctrine expressed in Cady was taken one step further in Smith. In that case, the court held that marital properly was not subject to a hen or execution based upon a judgment obtained against one spouse or co-owner during the pendency of the divorce action because of the vested interest of the other spouse or co-owner. 241 Kan. 249, Syl. Smith made clear that the doctrine did more than remove property division transfers from the reach of the tax man. It also gave the previously uninvolved spouse property rights that trumped those of creditors seeking to collect from the involved spouse until the ownership of the property is finalized by the decree.
Thus, the Kansas courts have invoked the doctrine of species of common ownership in two situations: (1) to prevent a transfer of title between divorcing spouses from being seen as a taxable transaction, and (2) to protect the vested interest of one divorcing spouse when a creditor of the other divorcing spouse attempts to take control of property or its value during the pendency of the .divorce. Our courts have not previously applied the doctrine as the trial court did here: to permit a spouse to use the doctrine offensively to divide capital gains tax liability when property has been sold during the pendency of a divorce. The federal district court and, later,-the Tenth Circuit have invoked the doctrine to shift tax liability on income generated by a portion of a partnership interest post-divorce at the insistence of one of the ex-spouses, but that situation is distinct. See Kenfield v. United States, 783 F.2d 966, 968-70 (10th Cir. 1986) (following and expanding upon Imel v. United States, 523 F.2d 853, 855-57 [10th Cir. 1975]).
This review of the common law leads us to disagree with the district court’s analysis. Cady and its progeny are instructive but not controlling of the outcome here.
Interpretation of Separation Agreement and Hearing Remarks
In this case, the Coca-Cola stock was no longer part of the marital estate when the trial court entered its final orders under K.S.A. 2000 Supp. 60-1610(b). Rather, the trustee, in his sole discretion, had liquidated the stock and deposited the before-tax proceeds into one of the parties’ accounts that was to be split 50/50. The separation agreement itself did not address this specific situation, but it was brought to the court’s attention by the parties’ counsel at the divorce hearing and explained. At that point, the court was assured by petitioner’s counsel that essentially, since the agreement provided for a 50/50 division of everything, it was really not technically relevant that the stock had been sold and “locked in” a capital gain that increased the parties’ joint net worth by several million dollars.
Based on that representation, and the agreement of respondent’s counsel, the court ruled that the distribution of assets reflected in the separation agreement and its attachment was fair and equitable.
We see no reasonable alternative to our interpretation of the exchange at the divorce hearing: that is, the stock sale was intended to change nothing about the parties’ relative financial positions. That, in addition to the enormous positive injection for their net worth, is why neither side took issue with it. If the sale had not occurred during the pendency of the divorce, each spouse would have left their union with 50 percent of the 84 percent beneficiary interest in the trust, or perhaps 50 percent of the stock it represented. If and when either or both sold the stock post-divorce, each party would have borne his or her 50 percent share of the tax burden. In order for the sale truly to have made no relevant difference, as represented by counsel at the hearing, or, to put it another way, to maintain the fair and equitable division, each party must now be seen as having realized half of the gain the sale produced during the pendency of the divorce. Otherwise their relative financial positions would have been changed by the sale—petitioner’s $1.5 million to the better and respondent’s $1.5 million to the worse. This was not the intention of a document that states the stock is to be shared equally nor of the remarks made to the court during the hearing.
We affirm the district court on this alternate analysis of the undisputed facts before it. If a trial court reaches the right result, its decision will be upheld on appeal even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999). We are satisfied that the separation agreement unambiguously indicated the parties’ intent to transfer the stock in kind and that the remarks made by counsel confirm that intention once the stock had been liquidated. The parties did not mean to alter the balance of their property division by allocating the entire tax burden accompanying the gain to one side.
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JOHNSON, J.:
Cutean Curry appeals his jury convictions for drug offenses. He raises three issues on appeal: (1) whether there was sufficient evidence to support his convictions for possession of co caine with intent to sell and possession of drug paraphernalia with intent to deliver; (2) whether it was reversible error to fail to instruct the jury that it must find defendant had sufficient possession of the cocaine to have allowed him an opportunity to affix Kansas drug tax stamps; and (3) whether there was sufficient evidence to show defendant had a reasonable opportunity to affix Kansas drug tax stamps to the cocaine to support his conviction for possessing drugs without drug stamps affixed. We affirm.
The route to Curry’s convictions commenced when he backed an automobile from a parking space and nearly collided with a marked city police car. Curry’s brother, Charles, was in the front passenger seat; a small child was in the backseat. The police car operator, Officer Darin Daily, observed that the child was not properly restrained. Daily activated the emergency lights, but Curry continued to drive. After traveling a city block, Daily engaged the siren. Curry continued for another block and a half, at which point Charles exited the car and ran. Another half block later, Curiy came to a complete stop, with Officer Daily parking behind Curry’s car.
Without Daily’s prompting, Curry exited the car. Daily drew his weapon and ordered Curiy not to move. Instead of complying with the order, Curry walked backwards, circled the front of his car, paused briefly, and proceeded along the passenger side to the rear of his car. While circling the car, Curry ignored Daily’s requests to raise his hands. Daily testified he could not see Curry’s hands when he was at the front of the car, but Daily observed Curry’s arms moving. At the rear of his car, Curry finally complied with Daily’s commands and was handcuffed. He gave law enforcement officers a false name.
Back-up officers arrived on the scene. A bystander advised one of the officers that Curry had dropped something as he walked in front of his car. At the front of Curry’s car, officers discovered Curry’s wallet and two cellophane bags. The bags contained a total of 23 yellowish white rocks. A field test revealed the rocks contained cocaine, which was subsequently confirmed by forensic testing.
Drug tax stamps were not affixed to the cocaine. Daily testified there were no tax stamps in Curry’s car, in his wallet, or on his person.
Sufficiency of the Evidence
Curry argues there was insufficient evidence for a jury to conclude he possessed the cocaine and paraphernalia (plastic baggies), and insufficient evidence to establish his intent to sell the cocaine or to deliver the 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 the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Possession
Curry denied having any knowledge of the cocaine and baggies. He said he placed his wallet under the car seat during the pursuit to conceal his identity from the police. However, law enforcement officers testified the wallet containing Curry’s identification was found on the ground in front of Curry’s car. Curry had passed by and paused at the point of discovery, while disobeying Officer Daily’s commands delivered at gunpoint. The cocaine and baggies were discovered within inches of the wallet. A bystander told police Curry dropped something in front of the car. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 268 Kan. 222, 236, 993 P.2d 1213 (1999). A rational jury could reasonably conclude Curry knowingly possessed the cocaine and baggies, at least for the period of time necessary to discard them in front of the car.
Specific Intent
Law enforcement officers testified: (1) The amount of cocaine recovered, 23 rocks, was a large quantity with a street value of $460; (2) one or two rocks is the normal quantity to possess for personal use; (3) the manner in which the rocks were twisted into the corners of the bags is indicative of packaging for sale. Curry was not employed at the time; there was no money in his wallet. Specific intent may be shown by acts, circumstances, and reasonable inferences; it need not be shown by direct proof. State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050 (1995). There was sufficient evidence to support the jury’s finding that Curry intended to sell the individual cocaine rocks and intended to deliver them in the plastic bags.
lury Instruction
Curiy asserts the trial court was required to instruct the jury that it must find Curry had sufficient possession of the cocaine to have had an opportunity to affix the drug stamps to the controlled substance (sufficiency of possession instruction). He contends the failure to give such an instruction requires reversal.
Curiy submitted written, proposed jury instructions to the trial court. However, a sufficiency of possession instruction was not requested. Curry specifically stated he had no objection to the trial court’s proposed instructions.
The accepted instructions included the definition of “possession” set forth in the pattern instructions, PIK Crim. 3d 53.00, as “[hjaving control over a place or thing with knowledge of and the intent to have such control.” The elements instruction read as follows:
“The defendant is charged in COUNT III with the crime of possession of Cocaine without Kansas tax stamps affixed. [T]he defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly possessed more than one (1) gram of Cocaine, a controlled substance without affixing official Kansas tax stamps or other labels showing that the tax has been paid; and
“2. That this act occurred on or about the 29th day of November, 1999, in Montgomery County, Kansas.”
Since Curiy did not object to the instructions prior to their submission to the jury, the absence of the sufficiency of possession instruction must be “clearly erroneous” to be reversible error. K.S.A. 2000 Supp. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Curry cites State v. Edwards, 27 Kan. App. 2d 754, 761-63, 9 P.3d 568 (2000), which found that it was clearly erroneous to fail to give a sufficiency of possession instruction. The State does not address the reasoning in Edwards, but rather argues that it postdated Curry’s conviction. The State fails to note that an overruling decision is applied retroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued. State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991).
Edwards relied upon and expanded In re Burrell, 22 Kan. App. 2d 109, 116, 912 P.2d 187, rev. denied 260 Kan. 993 (1996). In Burrell, the defendant gave an undercover officer money while they were seated in Burrell’s car. Both exited the car. The officer then retrieved a gym bag full of marijuana, placed it in the car’s back seat, and almost immediately arrested Burrell. Burrell never reentered the car, nor did he ever have actual, physical custody of the drugs. In his criminal case, Burrell pled guilty to attempted possession of marijuana. In a civil action, the Kansas Department of Revenue (KDR) issued an assessment for the drug tax. Eventually, the Board of Tax Appeals (BOTA) agreed with KDR that Burrell had constructive possession of the drugs, but BOTA found such possession was insufficient to incur liability for the drug taxes. The Kansas Court of Appeals agreed with BOTA. Burrell, 22 Kan. App. 2d at 115. The Burrell court analogized that the imposition of criminal liability for possession of marijuana without drug tax stamps would be unconstitutional “if it were based on conduct that gave the violator no opportunity to comply with the law.” 22 Kan. App. 2d at 116-17.
In Edwards, the defendant was stopped for a traffic infraction. Subsequently, cocaine was discovered in the car seat. There was a passenger in the front seat. The defendant had been in the vehicle for over an hour. The jury convicted the defendant of possessing the cocaine without affixing drug tax stamps. As here, the appeal questioned whether the evidence established sufficient possession to allow an opportunity’ to affix the drug tax stamps and whether the trial court erred in not giving, sua sponte, a sufficiency of possession instruction.
Edwards specifically found Burrell applicable in a criminal case. “[W]e hold that in this state, a defendant may not be found guilty of a crime for failing to affix tax stamps to a controlled substance unless the evidence shows that the defendant had sufficient possession so that he or she had an opportunity to affix those stamps.” 27 Kan. App. 2d at 762. However, Edwards found that evidence indicating the drugs had been in an automobile driven by the defendant for an hour and 20 minutes was “sufficient evidence in which the jury could have found that defendant had sufficient time to affix the tax stamps to the cocaine found in the automobile.” 22 Kan. App. 2d at 761.
Despite finding sufficient evidence to support the tax stamp conviction, Edwards found the failure to give a sufficiency of possession instruction clearly erroneous and reversible error. Edwards opined there was a real possibility the jury verdict might have been different with a sufficiency of possession instruction.
“The type of possession required in order to be guilty of a violation of the drug tax stamp statute is different from the type of possession required to be guilty of the crime of possession of cocaine. If the juiy applied the possession definition given for the possession of cocaine charge, it would have found defendant guilty of violating the tax stamp act even though he did not have sufficient possession to have had an opportunity to affix the tax stamps.” 27 Kan. App. 2d at 762-63.
The State of Kansas has imposed a tax on marijuana and controlled substances. K.S.A. 79-5202. Cocaine is a controlled substance. See K.S.A. 79-5201(b); K.S.A. 2000 Supp. 65-4101(e). For purposes of taxation, a person possessing 1 gram or more of cocaine is a dealer. See K.S.A. 79-5201(c). A dealer must pay a tax; obtain an official stamp, label, or other indicia of tax payment; and affix said indicia to the cocaine immediately after receiving it. K.S.A. 79-5204. The taxes are “due and payable immediately upon acquisition or possession in this state by a dealer.” K.S.A. 79-5204(d). (Emphasis added.) “Any person may purchase any such stamp, label or other indicia without disclosing such person’s identity.” K.S.A. 70-5204(b). Any dealer possessing cocaine without the ap propriate stamp, label or other indicia (drug tax stamp) is guilty of a felony. K.S.A. 79-5208.
Under the facts in Burrell, the constructive possession, if it was such, did not allow any opportunity for the dealer to affix drug tax stamps. If a dealer’s control over drugs is so tenuous as to preclude any opportunity to affix drug tax stamps, such constructive possession will not constitutionally support a conviction for possessing drugs without affixing drug tax stamps. Edwards would suggest the determination of what constitutes “sufficient possession” to avoid constitutional challenge is a function of time; the dealer must be allowed some amount of time to affix the stamps. However, the legislature has established the time that drug stamps are to be affixed, i.e., immediately. “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Our legislature knows how to provide for a grace period to pay taxes. See K.S.A. 41-502 (taxes on alcoholic liquors are payable on or before the 15th day of the calendar month next succeeding the month in which the distributor acquires possession). K.S.A. 79-5208 does not permit any grace period. The tax is due and payable, and tax stamps must be affixed immediately upon receipt, acquisition, or possession of the cocaine.
We feel Edwards’ suggestion that sufficiency of possession under K.S.A. 79-5208 is a function of time does not comport with the legislative intent of K.S.A. 79-5204(c). What made the possession in Burrell constitutionally suspect was Burrell’s lack of control over the drugs. Under our facts, the PIK instruction on possession, focusing on control, was sufficient without a further request or objection from Curry. Therefore, we respectfully decline to follow Edwards’ holding that a jury must be given a sufficiency of possession instruction in cases where the evidence is sufficient to support conviction. Instead, we hold that where, as here, the evidence will support a jury finding that a defendant had actual possession of a controlled substance or possession with sufficient control to allow any opportunity to immediately affix drug tax stamps to the drugs, it is not clearly erroneous for the district court to fail to give a sufficiency of possession instruction sua sponte.
Sufficiency of Opportunity to Affix Stamps
Curry says that although he may have had more contact with the drugs than the defendant in Burrell, the evidence did not show he had as much time to affix the stamps as the defendant in Edwards. Therefore, he says the evidence was insufficient to establish he had sufficient possession to support his drug tax stamp conviction. We reject Curry’s contention that time of possession is relevant. The analysis is whether Curry had actual possession or possession with sufficient control over the drugs to permit the immediate affixing of drug tax stamps.
The challenge is to the sufficiency of the evidence. As before, we are required to review all the evidence, viewed in tire light most favorable to the prosecution.
If the jury believed Curry had any connection to the cocaine, it must have found he carried it from inside the car to the front of his vehicle. As such, Curry had to have actual, physical possession of the cocaine. When Curiy picked up the cocaine, it was his statutory duty to immediately affix drug tax stamps, if they were not already affixed. See K.S.A. 79-5204(c). No exception is made for one who possesses with the intent to hide or dispose of the cocaine.
Further, Curry was the only adult in the vehicle for approximately the last one-half block of traveling. He was one of two adults in the vehicle that left file parking space and traveled several blocks. The other adult, Charles, denied any knowledge of the cocaine. It would be logical for the jury to infer the cocaine was in Curry’s car for some period of time prior to its departure, since the vehicle was under constant police surveillance after it left the parking space. There was sufficient evidence to support the finding that Curiy had sufficient control over the cocaine to enable him to comply with his statutoiy duty to immediately affix drug tax stamps.
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Green, J.:
Juan J. Alvarez appeals his convictions of possession of methamphetamine, no drug tax stamp, and possession of marijuana. On appeal, Alvarez argues that the trial court erred in fading to give a unanimity instruction and in failing to instruct the juiy that he must have had an opportunity to obtain and affix a drug tax stamp. Alvarez further contends that the trial court’s instruction on the definition of possession improperly shifted the burden of proof. We disagree and affirm.
On May 2,1999, Deputy Michael Himburg of the Geary County Sheriffs Department saw a car stopped on the side of the road. As Deputy Himburg approached the car for a welfare check, he observed two men sleeping inside. Deputy Himburg spoke with the driver of the car, who was identified as Alvarez. Alvarez told the deputy that he and his stepson, Moses Mesa, were driving from Colorado to Kansas City and had pulled over to rest. While speaking with Alvarez, Deputy Himburg detected a faint odor of marijuana. Alvarez consented to a search of his car.
During the search, Deputy Himburg located a blue bag in the back seat of the car. Inside the bag, the deputy found marijuana. Deputy Himburg arrested Alvarez and Mesa.
The bag and vehicle were secured and thoroughly searched. In the blue bag where the marijuana was discovered, deputies also retrieved methamphetamine in a bottle of Lean Life and in a box of dental floss. Also in the blue bag, the deputies found business cards and other property belonging to Alvarez. Additional methamphetamine was found on the driver’s-side floorboard.
Alvarez was charged with possession of methamphetamine with the intent to sell, possession of marijuana, and no drug tax stamp. At trial, Alvarez claimed all of his property was in a black briefcase and did not know how his property got into the blue bag because it belonged to Mesa.
The jury found Alvarez guilty of possession of methamphetamine, possession of marijuana, and no drug tax stamp. The trial court sentenced Alvarez to a controlling sentence of 17 months’ imprisonment.
Unanimity Instruction
Alvarez’ first argument on appeal is that the trial court erred in failing to give a unanimity instruction. Specifically, Alvarez contends that because the State presented evidence of multiple acts to prove possession of methamphetamine, a unanimity instruction was necessary to ensure that the jury unanimously agreed as to the criminal act charged.
The State argues that a unanimity instruction was not required because this is not a multiple acts case. The State insists that this is not a multiple acts case because Alvarez’ charge of possession of methamphetamine with the intent to sell was based on his possession of all the methamphetamine found in his car.
This issue was recently considered in State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001). The State charged Hazley with one count of possession of methamphetamine on the theory that she constructively possessed all of the methamphetamine found simultaneously throughout her house. The Hazley court noted that because “[t]here were no truly multiple acts on which the prosecution relied . . . there was no need for a unanimity instruction.” 28 Kan. App. 2d at 671.
Here, the State charged Alvarez with one count of possession of methamphetamine based on his constructive possession of all of the methamphetamine discovered in his car. Because of how Alvarez was charged, the State did not rely on multiple acts. As a result, the trial court was not required to give a unanimity instruction.
Jury Instruction on Opportunity to Purchase and Affix Drug Tax Stamp
Alvarez additionally contends that the trial court erred in failing to instruct the jury that he must have had an opportunity to purchase and affix a drug tax stamp. Because Alvarez did not request such an instruction, our standard of review is whether the trial court’s failure to give the instruction was clearly erroneous. See State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Alvarez was convicted of possession of methamphetamine without a drug tax stamp under K.S.A. 79-5204(a). The statute provides: “No dealer may possess any . . . controlled substance upon which a tax is imposed pursuant to K.S.A. 79-5202, and amendments thereto, unless the tax has been paid as evidenced by an official stamp or other indicia.” Subsection (d) of that statute states that taxes on controlled substances “are due and payable immediately upon acquisition or possession in this state by a dealer.”
To support his argument that the trial court erred in not instructing the jury that to convict him of no drug tax stamp it had to find that he had an opportunity to purchase and affix a drug tax stamp, Alvarez cites In re Burrell, 22 Kan. App. 2d 109, 912 P.2d 187, rev. denied 260 Kan. 993 (1996). That case involved a civil taxation action in which Burrell challenged the taxes and penalties assessed against him as a result of his possession of marijuana. Burrell held that “in order to incur liability for the tax under 79-5204, the taxpayer must have had possession of the marijuana sufficient enough to affix the stamps.” 22 Kan. App. 2d at 117. The Burrell court rationalized that die imposition of criminal liability for possession of marijuana without drug tax stamps would be unconstitutional “if it were based on conduct that gave the violator no opportunity to comply with the law.” 22 Kan. App. 2d at 116-17. The court concluded that Burrell did not have the opportunity to affix the stamps to the marijuana because he was arrested by an undercover officer immediately after the officer put the marijuana in Burrell’s car. As a result, this court found that Burrell was not hable for the tax or penalties.
Here, Alvarez relies on Burrell when arguing that the trial court erred in failing to instruct the juiy that he must have had an opportunity to obtain and affix a drug tax stamp to the methamphetamine found in his car. Alvarez contends that there is no evidence to show that he was in possession of the methamphetamine for such a period that he had an opportunity to obtain and affix a drug tax stamp.
A similar argument was recently considered by this court in State v. Edwards, 27 Kan. App. 2d 754, 9 P.3d 568 (2000). After holding that Burrell applies to criminal actions, the Edwards court found that “there was sufficient evidence in which the jury could have found that defendant had sufficient time to affix the tax stamps to the cocaine found in the automobile.” 27 Kan. App. 2d at 761. Edwards went on to hold, however, that the trial court’s failure to instruct the juiy that Edwards must have had possession sufficient to have allowed him to affix the stamps was clearly erroneous. The court rationalized as follows:
“[A] real possibility existed in this case that the jury might have returned a different verdict had it been instructed that defendant must have had possession of the crack cocaine ’sufficient to allow [him] to have affixed the stamps.’ Burrell, 22 Kan. App. 2d at 117. ... If the juiy applied the possession definition given for the possession of cocaine charge, it would have found defendant guilty of violating tire tax stamp act even though he did not have sufficient possession to have had an opportunity to affix the tax stamps.” 27 Kan. App. 2d at 762.
Significantly, the Edwards court failed to mention K.S.A. 79-5204(c), which requires that a dealer affix a drug tax stamp “immediately after receiving the substance.” Rather than applying a broad test to determine whether a dealer was in possession sufficient to affix a drug tax stamp, the Edwards court could have relied on K.S.A. 79-5204(c). “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The legislature’s use of “immediately after receiving the substance” to establish when a drug tax stamp must be affixed to a controlled substance is not ambiguous. As a result, we refuse to read the statute as allowing for a grace period to purchase and affix a drug tax stamp. The tax is due and payable, and the tax stamp must be affixed, immediately upon possession.
Because Edwards does not address the legislative intent set out in K.S.A. 79-5204(c), we respectfully decline to follow that decision relative to its holding that a jury must be instructed on the sufficiency of possession. Under the facts of this case, because Alvarez failed to immediately affix a drug tax stamp to the methamphetamine before he was arrested, a jury instruction on the sufficiency of possession was unnecessary.
Alvarez further suggests that the trial court erred in failing to instruct the jury that it was required to find that he had an opportunity to purchase a drug tax stamp. Alvarez’ contention, however, could never be a valid argument because dealers may conveniently purchase drug tax stamps through the mail. Moreover, our Supreme Court has rejected the argument that a defendant must have an opportunity to purchase a tax stamp before he or she can be convicted of failure to affix such a stamp. See State v. Payne, 183 Kan. 396, 327 P.2d 1071 (1958) (upholding a conviction for possession of alcoholic beverages without a tax stamp when a defendant purchased a bottle of wine in Missouri and carried it across the state line, even though it was impossible to pay the Kansas tax directly to the State or to even purchase a tax stamp). As a result, because Alvarez could have purchased a drug tax stamp through the mail and affixed it before traveling through Kansas, the trial court was not required to instruct the jury that Alvarez had to have an opportunity to purchase a drug tax stamp.
Instruction on Presumption of Intent
In his supplemental brief, Alvarez argues that the trial court’s instruction defining possession incorrectly shifted the burden of proof in violation of the Due Process Clause to the United States Constitution. Because Alvarez did not object to the instruction, our standard of review is whether the instruction was clearly erroneous. See Henry, 263 Kan. at 131.
The trial court gave the following instruction to the juiy:
“ ‘Possession means, ‘having control over a place or thing with knowledge of, and the intent to have, such control’. The proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction, even though the amount may not be measurable or usable. The state, however, must still prove the existence of a controlled substance.
“You may infer possession from a person’s use of illegal drugs and narcotics, his proximity to the area where the drugs were found, whether the drugs are in plain view, and suspicious behavior.
“Possession may be immediate and exclusive, jointly held with another, or constructive. ‘Constructive possession’ is knowingly having both the power and the intention, at a given time, to exercise dominion or control over the property. ‘Joint possession’ occurs when two or more persons, who have the power or control and intent to manage property, exercise the same jointly.”
Alvarez alleges that the second paragraph of this instruction improperly shifted the burden of proof because a reasonable juror could have concluded that if any of the factors listed were true, then Alvarez would have had to disprove possession. The second paragraph of the instruction lists some of the incriminating circumstances that link a defendant to drugs when he or she is in nonexclusive possession of premises where drugs are found. See State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991).
To support his argument, Alvarez relies on State v. Johnson, 233 Kan. 981, 666 P.2d 706 (1983). The Johnson court recognized that “any instruction which shifts the burden of proof or of persuasion to die defendant is unconstitutional and is clearly erroneous.” 233 Kan. at 985.
Alvarez’ reliance on Johnson, however, is misplaced. First, the complained-of portion of the jury instruction defining possession does not improperly shift the burden of proof to Alvarez. Instead, that paragraph instructs the jury on the type of evidence that may be considered in determining whether Alvarez possessed the drugs found in his car. What Alvarez fails to recognize is that the State must still put on evidence of the Cruz factors. This is unlike the presumption of intent instruction, which requires a hmiting instruction under Johnson, because the presumption of intent instruction does not require the production of positive evidence of intent by the State. However, to reach an inference of possession, the State must come forward with positive evidence of a factor or factors listed in Cruz. Like any evidence, Alvarez could have challenged the sufficiency of evidence supporting the inference of possession. As a result, we find that the instruction on possession did not improperly shift the burden of proof to Alvarez.
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Gernon, J.:
Jensen International, Inc., (Jensen International) appeals the trial court’s rulings which held that former employees and shareholders of Jensen International, Grady Kelley and Joe Rinkenbaugh, had not breached a covenant not to compete and that Jensen International had breached the agreement by refusing to make timely payments.
The principal shareholders of Jensen International are J. B. and Donna Jensen. Kelley, Rinkenbaugh, and James Jensen II executed a formal settlement agreement and mutual release with J. B. and Donna Jensen. This agreement settled all claims between the parties. Under the agreement, Kelley, Rinkenbaugh, and James Jensen II sold their Jensen International stock for $500,000 back to the Jensens and signed a covenant not to compete. Additionally, the Jensens were to make payments of $15,000 to each of them on January 2, 1998, 1999, 2000, 2001, and 2002, in a total amount of $225,000.
The agreement further provided:
“12. A Party shall be in default of this Agreement upon (i) the failure to timely make any payment required by the terms of this Agreement, time being of the essence; or (ii) the failure to strictly comply with any term or provision of this Agreement or the term or provision of any other document referenced herein, time being of the essence. Upon the occurrence of a default, and if a judicial proceeding is necessary to enforce the terms of this Agreement, the Party relying on this Agreement and successfully defeating such action or asserting any right under this Agreement shall be entided to recover its reasonable attorney’s fees, costs and expenses incurred as a result of such proceeding.”
The covenant not to compete had the following provisions:
“I. The undersigned will not, either direcdy or indirecdy, alone or with others, engage in or have any ownership interest in a foundry business or other type of business which produces the same type of product or service as Jensen International [or the Jensen affiliated companies] within a 50 mile radius of Coffeyville, Kansas for a peiiod of two years following the execution of Üiis Agreement. Nothing in tiiis agreement shall limit Grady Kelly’s [sic] right to be shareholder in Economy Co.
“II. That further, the undersigned will not aid or assist any person, business or entity in entering into or conducting the business of a foundry, or other type of business which produces the same type of product or service as Jensen International or the Jensen-affiliated cos. within a 50 mile radius of Coffeyville, Kansas for a period of two years following the execution of this Agreement.
“III. The undersigned will not contact directly or indirectly any customer of Jensen International, Jencast Products, Jensen Brother Manufacturing, Service Pipeline and Supply, Hy Jack Company, Kelly Manufacturing, hereinafter‘Jensen’ to engage in competition for the business of said customers for two (2) years from the date of the execution of this Agreement. For the purposes of this paragraph, the term ‘Customer’ shall be defined as any person, business or entity who has purchased or acquired goods or services from ‘Jensen’ within six (6) months from the date of this Agreement.
“IV. The undersigned will not aid or assist any person, business or entity in contacting directly or indirectly any customer of ‘Jensen’ for a period of two years following the execution of this Agreement.”
The covenant also provided:
“VI. If any of the undersigned breach, or threaten to commit a breach of any of the Restricted Covenants, ‘Jensen’ shall have any and all rights and remedies which shall be in addition to, and not in lieu of, any other rights and remedies available to ‘Jensen’ at law or in equity:
“(a) Upon the judicial determination of a breach of this agreement, Jensen shall have the right to cancel any additional payments due and owing or accrued pursuant to the Settlement Agreement and General Mutual Release executed by the Parties contemporaneously herewith; provided, however, that such cancellation shall occur only to the specific party who is determined to be in breach of this agreement. . . .
“VII. Upon the occurrence of a default, as the same is defined in the Settlement Agreement and Mutual Release, and such default is not immediately cured, time being of the essence, then the Restrictive Covenants enumerated herein shall cease, and shall be of no further effect whatsoever, and Grady Kelly [sic], James Jensen, II, and Joe Rinkenbaugh shall be released from all Restrictive Covenants contained herein.”
Jensen International, J. B. Jensen, and Donna Jensen (collectively, Jensen) filed a petition for declaratory relief on January 5, 1999, stating Kelley and Rinkenbaugh breached the agreement and covenants and Jensen was not required to make any further payment.
The following facts are not controverted: Atlas Steel Products (Atlas Steel) was incorporated in May 1998 by Kelley, Rinken baugh, and their wives. At the same time, Kelley, Rinkenbaugh, and Alva Kimrey formed KRK Building, Inc., (KRK) located in Vinita, Oklahoma. KRK purchased property in Vinita, Oklahoma, and leased it to Atlas Steel, Precision Turning, a machine shop owned by Kimrey, Gary’s Welding, and Coca-Cola. The parties agree the location of business of Atlas Steel, Precision Turning, and Gary’s Welding is within the 50-mile radius of Coffeyville.
Kelley and Rinkenbaugh filed a motion for partial summary judgment in March 1999, claiming Jensen violated the agreement by failing to make payments in January 1999. By a letter decision dated May 4,1999, the trial court decided that Jensen was without authority or power to suspend the required payments to Kelley and Rinkenbaugh, since there was no judicial determination of their breach under paragraph VI(a) of the covenant and that Kelley and Rinkenbaugh were released from the restrictive covenants.
After a trial, the district court found that Kelley and Rinkenbaugh did not violate the terms and conditions of the agreement or the covenant not to compete.
Jensen appeals.
Was Adas Steel a Competitor of Tensen?
Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996).
Furthermore, when a trial court makes a negative factual finding, the party challenging that finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice because the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it. Thomason v. Stout, 267 Kan. 234, 238, 978 P.2d 918 (1999).
Jensen argues Kelley and Rinkenbaugh, through Atlas Steel, sold the same products and services as Jensen International, in violation of the agreement. The trial court found that Atlas Steel did not fabricate steel or metal products as alleged by Jensen. The court stated:
“Plaintiff fabricates steel for its own product line and those of customers. Plaintiff defines fabrication as when you ‘take the raw steel and bend it, shear it, cut it, punch it. In someway you change its shape in someway to be moved to a weld shop to be attached together in some type of form of another shape.’ (Emphasis added) Mr. Kelly [sic] testified that Atlas cuts, breaks, shears raw steel for customers, but that they provide this service, as part of raw steel sales whereas Jensen provides this service as part of the fabrication process which involves more than merely cutting, breaking and shearing. Mr. Kelly [sic] testified that his definition of steel fabrication was the ‘joining of two or more parts together.’ It appears that the parties have identical definitions of the process of ‘fabrication’ even though Mr. [Jensenfs later attempted to modify his definition to coincide with his [counsels’] questions by omitting the underlined part of the definition above.”
Jensen claims the trial court erred in using the dictionary definition of “fabrication” instead of definitions of the expert witnesses at the trial. However, the court acknowledged “the parties have identical definitions of the process of ‘fabrication,’ ” although Jensen’s witness attempted to modify the definition. The court cited the dictionary definition under the premise that “if the court assumes for the sake of argument that plaintiff s definition omits the underlined portion the court would arrive at the same conclusion.”
In addition to Kelley’s testimony, Dennis Wieneke, a product engineer at Jensen International, testified that Jensen International made “steel components for construction type companies, whether it’s gussets, bolts, items like that,” as well as “pump jacks and truck beds,” as part of “a fabrication and machine shop operation.” A former weld shop foreman for Jensen International, Charles Bently, testified he was “responsible for fabrication welding, painting, and assembling of everything in the building” and “[gjetting the product out the door.”
We conclude there is substantial competent evidence to support the trial court’s finding that Adas Steel did not sell or provide the same product or service as Jensen International, and the trial court did not err in holding there was no violation of the covenant not to compete.
Did KRK Aid a Competitor of Tensen?
Jensen argues Kelley and Rinkenbaugh, through KRK, aided and assisted Precision Turning and Gary’s Welding, which were competitors of Jensen International.
KRK leased property to Precision Turning and Gary’s Welding in Vinita, Oklahoma. Precision Turning is a machine shop, and Gary’s Welding is a welding shop. They are in direct competition with Jensen International. The critical issue is whether Kelley and Rinkenbaugh aided or assisted Precision Turning and Gary’s Welding in violation of the covenant not to compete.
Jensen notes the following actions of Kelley and Rinkenbaugh as evidence of aiding and assisting the competitors: (1) helping Precision Turning relocate to Vinita, (2) leasing property to Precision Turning, (3) deferring rent to Precision Turning, (4) aiding Precision Turning in banking transactions and shop management, and (5) referring work to Gary’s Welding.
The main argument of Jensen under this issue is that Kelley and Rinkenbaugh, through KRK, leased property to Precision Turning and Gary’s Welding. Jensen relies on Dowd v. Bryce, 95 Cal. App. 2d 644, 213 P.2d 500 (1950), which held the vendors were prohibited from leasing land within the restricted area for the time period under the covenant not to compete.
On the other hand, Kelley and Rinkenbaugh cite Riverview Floral v. Watkins, 51 Wash. App. 658, 754 P.2d 1055 (1988). Riverview stated:
“Absent a contractual provision to the contrary, a party who covenants not to compete in a particular business is not precluded from merely leasing property or loaning money to others engaged in that business. The covenantor is precluded from having a connection with the business or deriving a profit therefrom. [Citations omitted.]” 51 Wash. App. at 661-62.
The Riverview court specifically rejected the “minority” view taken in Dowd, noting criticism of the Dowd rationale that the act of leasing creates a link in the chain of competition. 51 Wash. App. at 661 n.l.
Midlands Transp. Co. v. Apple Lines, Inc., 188 Neb. 435, 197 N.W.2d 646 (1972), dealt with a company violating a covenant not to compete by leasing trucks to a competing common carrier. The court noted the appellant premised its argument on the rationale of Dowd, and it engaged in an extensive discussion of Dowd:
“There can be hardly any doubt that the decision in Dowd v. Bryce ... is correct under the circumstances. The inclusion in the restrictive covenant of the provision against selling other property to future competitors shows the intention of the parties as to the scope of the prohibited activities clearly. . . . Thus, it has been held generally that there is no breach of the covenant where the covenantor merely lends money to a person engaged in a similar business, or where . . . the covenantor sells land to another who erects a building thereon for the purpose of canning on the business. On the other hand there is a breach of the covenant where the covenantor engages in the business as a partner, organizes a competing corporation, or otherwise engages in a similar business under corporate form, or takes active interest in the encouragement of the business in other ways.” ’ ” 188 Neb. at 441-42.
The court concluded: “It appears that the majority and proper rule is that the mere leasing of personal property, without proof of other circumstances, by a covenantor to an existing competitor of a promisee, does not constitute a breach of a general covenant not to compete.” 188 Neb. at 441.
Here, KRK leased its building to Atlas Steel, Precision Turning, and Gary’s Welding. Precision Turning and Gary’s Welding were engaged in the same business as Jensen International; however, Kelley and Rinkenbaugh were not partners with Precision Turning or Gary’s Welding. They did not take active roles in the management of these businesses or share profits. Under the holding and rationale in Midlands, as well as the lack of an explicit provision prohibiting leasing of property in the covenant, leasing of the building to Precision Turning and Gary’s Welding is not a violation of the covenant not to compete.
The rationale in Midlands is reasonable from a common sense approach and an economic view of these agreements.
Tury Trial
Jensen argues it had the right to a jury trial under the Kansas Constitution Bill of Rights § 5 and K.S.A. 60-257, and that the trial court erred in denying it because it was a declaratory judgment action.
The Kansas Constitution Bill of Rights § 5 provides: “The right of trial by jury shall be inviolate.” K.S.A. 60-257 provides: “The procedure for obtaining a declaratory judgment pursuant to article 17 of this chapter, shall be in accordance with this article, and the right to trial by jury may be demanded under the circumstances and in the manner provided in K.S.A. 60-238 and 60-239.”
K.S.A. 2000 Supp. 60-238 provides in pertinent part:
“(a) . . . The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.
“(b) . . . Any party may demand a trial by jury of any issue triable of right by a jury by: (1) Serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue; and (2) filing the demand as required by K.S.A. 60-205 and amendments thereto. Such demand may be indorsed upon a pleading of the party.”
In pertinent part K.S.A. 60-239(a) provides:
“When trial by jury has been demanded as provided in K.S.A. 60-238, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by juiy, unless . . . the court upon motion or of its own initiative finds that a right of trial by juiy of some or all of those issues does not exist under the constitution or statutes.”
The right to a jury trial in a civil proceeding in Kansas is not absolute and refers to that right as it existed under the common law. At common law and under the Kansas Constitution, a party is not entitled to a trial by jury as a matter of right in a suit in equity. In re Petition of City of Moran, 238 Kan. 513, 517-18, 713 P.2d 451 (1986). The Moran court cited the statutory procedure for obtaining a jury trial in a declaratory judgment case (K.S.A. 60-257), and then stated:
“[T]he right to a jury trial in an action for a declaratory judgment is not absolute. It must first be determined whether the declaratory judgment action is equitable in nature or one at common law. In determining whether the action for a declaratory judgment is one in equity, the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought.” 238 Kan. at 518.
In an action construing a gas purchase contract, tire Supreme Court held that the trial court’s denial of the request for a jury trial was not reversible error. Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 518-19, 382 P.2d 645 (1963). The Pan American court noted the fact that an action was instituted as a declaratory judgment could in no way detract from the right to a jury trial if the right otherwise existed and further explained:
“However, we do not believe the issues as framed by the pleadings present a question for a jury trial for two reasons. Basically, the action involves the construction of a contract or contracts. As we have previously stated, once the trial court had construed the provision for determining the reasonable price for gas ‘based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions,’ it had next to consider what contracts were admissible for comparison. Once the court determined the contracts which were admissible for comparison, there was nothing remaining to be done but to place such contracts beside the contract in controversy and construe them together. . . .
“Neither is this action for, nor could it be an action for, the recovery of money. The plaintiff could not recover a money judgment in this action. Neither could it have a finding or conclusion made which would form the basis for a money judgment.” 191 Kan. at 518-19.
Jensen prayed in its petition that it not be required “to make any further payments to defendants pursuant to the Settlement Agreement and Mutual Release” and the covenant not to compete “be specifically enforced requiring defendants to refrain from all further association with the competing companies.” The issue is construction of the agreement and the covenants, and there was no monetary damages involved. The trial court did not err in denying the requested jury trial.
Payments
The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
Kelley and Rinkenbaugh filed a motion for partial summary judgment, claiming Jensen violated the agreement by failing to make a payment in January 1999. The trial court held Jensen was without authority or power to suspend the required payments to Kelley and Rinkenbaugh since there was no judicial determination of their breach under the paragraph VI(a) of the covenant and they were released from the restrictive covenants.
It is uncontroverted that Jensen did not make a payment scheduled on January 2,1999. Jensen’s counsel sent a letter in July 1998, stating Jensen would make no further payments to Rinkenbaugh under the settlement agreement until and unless he came into compliance with the agreement. Jensen’s counsel also notified Kelley in December 1998 of his client’s intention to terminate any payments due him.
Jensen does not dispute the above facts; instead it argues that it is absurd to require a nonbreaching party to continue paying under an agreement, where there is evidence of a breach, until such time as a judgment is entered. Unfortunately for Jensen, the agreement is clear that “[u]pon the judicial determination of a breach of this agreement, Jensen shall have the right to cancel any additional payments due.” The language of the agreement is quite plain in specifically requiring the judicial determination of a breach, not alleged evidence of a breach, by Kelley and Rinkenbaugh.
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Elliott, J.:
Midwest Grain Products, Inc., (Midwest Grain) appeals the Workers Compensation Board’s award of permanent partial general disability (work disability) to Thomas E. Helmstetter. We affirm.
Helmstetter, who had worked at Midwest Grain for 23 years, was injured by an explosion while at work, injuring both arms. Claimant had been involved in two prior explosions while at work. After release from the hospital and after being released by Dr. Shriwise to return to work, claimant returned to Midwest Grain
for several months but later quit his job, stating his reasons for leaving were a lot of Cress, he was nervous, he was scared, and he thought he “could deal with it and it would go away, but it wasn’t working.”
Shortly after leaving Midwest Grain, claimant was hired at WalMart and later took on a second, part-time job. Later, he left WalMart for a job with Northwest Pipe Company.
Dr. Hatcher testified for claimant, diagnosing him with post-traumatic stress disorder (PTSD). She testified the causative, precipitating event was the explosion. Dr. Hatcher also testified claimant was reasonable in leaving the plant to cope with the stimuli at the plant which caused his PTSD to worsen, feeling avoidance is sometimes the only way to cope with PTSD. Dr. Hatcher tells her patients to seek employment which does not risk their safety. Dr. Hatcher imposed a restriction on claimant related to her concern that he needed to be in a work place where he felt safe.
Dr. Lacoursiere testified on behalf of Midwest Grain and, although he opined claimant’s PTSD was in remission, he stated it could come back if claimant returned to work at the Midwest Grain plant.
The administrative law judge found claimant was entitled to work disability due to PTSD and found the testimony of Dr. Hatcher to be credible. Further, the administrative law judge found the PTSD prevented claimant from returning to work due to the related fear and anxiety.
The Board affirmed, finding that claimant left work due to his injury, acted in good faith in leaving the plant, and could not bid on other jobs at the plant due to PTSD. The Board supported its ruling by noting the testimony of both experts and the fact claimant’s condition seemed to worsen while at the plant, but improved after leaving Midwest Grain.
Midwest Grain does not appeal the finding that claimant’s PTSD was work related and does not appeal the accident or whether the injury occurred. Midwest Grain only challenges the award of work disability as defined in K.S.A. 1999 Supp. 44-510e.
Disabilities resulting from psychological injuries are compensable when directly traceable to a compensable injury. Rund v. Cessna Aircraft Co., 213 Kan. 812, 827, 518 P.2d 518 (1974).
Midwest Grain first claims Helmstetter is not entitled to work disability because he voluntarily left his employment when he could have bid on other jobs within the company located in different departments. Although a transfer would have removed claimant from the immediate vicinity of the accident, the evidence indicated claimant needed to be away from Midwest Grain altogether, and claimant’s testimony was bolstered by that of both experts.
Midwest Grain’s reliance on Lowmaster v. Modine Mfg. Co., 25 Kan. App. 215, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998), is misplaced because here the evidence supported the finding that claimant, due to PTSD, needed to be away from the Midwest Grain plant entirely.
Further, Lowmaster was clarified in Oliver v. Boeing Co., 26 Kan. App. 2d 74, 977 P.2d 288, rev. denied 267 Kan. 889 (1999). The Oliver court ruled neither K.S.A. 1998 Supp. 44-5l0e(a) nor the policy exemption discussed in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), required claimant to seek post-injury accommodated work from his or her employer in every case. 26 Kan. App. 2d at 77. Rather, a request for accommodation is just one factor to be considered in deciding whether a claimant has acted in good faith. 26 Kan. App. 2d at 77.
Dr. Hatcher testified it was reasonable for claimant to leave Midwest Grain in order to cope with his PTSD and claimant’s symptoms did subside shortly after leaving. Midwest Grain’s expert also stated claimant’s symptoms could come back if he returned to work at the plant. There is substantial competent evidence to support the Board’s finding that claimant acted in good faith in leaving his job at Midwest Grain.
Midwest Grain also argues claimant is not entitled to work disability because he has demonstrated he retains the ability to perform his preinjury job, relying on Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997). Watkins is distinguishable. Here, claimant left Midwest Grain due to his injury. Watkins left his job because Food Bam went out of business.
Further, Watkins involved a different definition of work disability. The former version of K.S.A. 44-510e involved an ability test both as to jobs and wages, and Watkins is premised on that ability test.
Currently, ability or capacity to earn wages only becomes a factor when a finding is made that a good faith effort to find appropriate employment has not been made. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 804, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000). Once a finding has been made that the claimant has established a good faith effort, the difference in pre-and post-injury wages can be based on the actual wages made. Copeland, 26 Kan. App. 2d at 804.
The Board’s determination in this regard is supported by substantial competent evidence.
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Marquardt, J.:
George A. Kleinsorge appeals the trial court’s denial of his motion to terminate child support. We affirm.
George and Debra Kleinsorge were married in 1970, and their youngest son was bom on June 7,1982. The parties were divorced in December 1987. Debra was awarded primary residential custody of the children. George had originally been ordered to pay child support beginning in September 1987, and since December 1,1999, the court-ordered amount of child support for his youngest son was $391 per month.
The Kleinsorges’ youngest child was in kindergarten at the time of the divorce. One year later, Debra placed the child in a transitional first grade class on the advice of his teacher. This delayed the child’s graduation from high school by 1 year. Debra did not consult with George before placing the child in the transitional first grade class.
The child turned 18 years old on June 7, 2000, but did not graduate from high school until May 2001. In July 2000, George filed a motion to terminate child support. George contends that he should not be liable for child support after his child turned 18 years old because he did not knowingly acquiesce in the decision to delay his child’s completion of high school.
After a hearing on George’s motion, the trial court concluded that it was “apparent from the facts” that George did not participate in the decision to delay his child’s high school graduation. However, the trial court concluded that George knew or should have known about Debra’s decision and did nothing for approximately 12 years. Accordingly, the trial court found that George acquiesced in Debra’s decision. George’s motion was denied. George timely appeals.
On appeal, George contends that it is undisputed he was not notified his child was held back in school and he had no input in the decision.
This appeal involves the interpretation of K.S.A. 2000 Supp. 60-1610(a)(1)(C). Accordingly, we are granted an unlimited scope of review. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
“Regardless of the type of custodial arrangement ordered by the court, the court may order the child support and education expenses to be paid by either or both parents for any child less than 18 years of age, at which age the support shall terminate unless: . . . (C) the child is still a bona fide high school student after June 30 of the school year during which the child became 18 years of age, in which case the court, on motion, may order support to continue through the school year during which the child becomes 19 years of age so long as the child is abona fide high school student and the parents jointly participated or knowingly acquiesced in the decision which delayed the child’s completion of high school.” K.S.A. 2000 Supp. 60-1610(a)(l).
When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
“Acquiesce” means “[t]o give an implied consent to a transaction, to the accrual of a right, or to any act, by one’s mere silence, or without express assent or acknowledgment.” Black’s Law Dictionary 24 (6th ed. 1990).
Debra testified that contact between George and their child was “sparse” after the divorce. At all times relevant to this appeal, George lived approximately 17 miles from his child.
There is no evidence in the record on appeal that George participated in the decision to place his child in a transitional first grade class. K.S.A. 2000 Supp. 60-1610(a)(l)(C) requires that the parent either jointly participate or knowingly acquiesce.
George had visitation with his child while he was in grade school. George admits that when his child was in the 7th grade, he told George that he had been held back. We agree with the trial court that George acquiesced in the decision when he did nothing after he became aware of it. Accordingly, under K.S.A. 2000 Supp. 60-1610(a)(1)(C), George’s child support obligation will terminate when his child completes high school. The trial court did not err by denying George’s motion to terminate child support.
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Pierron, J.;
Jessie L. Bosby appeals his convictions for aggravated robbery, burglary of a building that is not a dwelling, automobile burglary, theft, and criminal damage to property. Bosby received a controlling term of 95 months’ incarceration. He argues there was insufficient evidence to support his conviction for aggravated robbery. We affirm.
Bosby and his codefendant, Nathaniel Jones, stole a pickup truck. They drove past the residence of Rosellen Barry and noticed that the van normally parked in the driveway was gone and that the garage had no door. Bosby saw a riding lawn mower in the garage and decided it was a “perfect day to get the mower.”
Bosby backed the truck up to the garage. Jones got the lawn mower while Bosby lowered the hydraulic lift on the back of the truck. They put the lawn mower on the hydraulic lift, loaded it on the truck bed, and shut the tailgate. Bosby said he saw Barry approaching after he was already in the driver s seat trying to release the emergency brake to get the truck moving. Bosby testified, “We were already in the process of leaving when she came out.” The emergency brake handle was broken off and only wires remained. Bosby poked his finger on the wires and it began to bleed. Bosby said Barry began hitting him across his back through the open window of the truck. He said that he tried to get the truck moving with the emergency brake on, but the truck died when he let the clutch out. Bosby testified that he fumbled with the wires in the broken steering column, but the blood from his finger made it hard to hold the wires.
Bosby testified that as he attempted to start the truck again, he felt somebody on his back, but did not know if it was Barry or Jones. He said he did not witness any confrontation between Barry and Jones. Bosby finally got the truck started and “bounced” it onto Leavenworth Road. However, the truck died and would not start. Bosby was able to release the emergency brake and the truck coasted down the hill and came to a stop. Bosby and Jones unloaded the lawn mower and hid it in the woods, intending to come back for it later. They were apprehended shortly thereafter.
Barry had a different version of the facts. She was cooking supper in her kitchen when she saw two men loading her lawn mower onto a flatbed truck in her driveway. Thinking the men had made a mistake and that they should be loading the neighbor’s mower for repairs, Barry went outside to tell them of their mistake. Barry said the men had already loaded a push mower and the riding lawn mower was on the hit being loaded into the truck. Barry said both lawn mowers were in her garage before the men took them, and the garage did not have a door because it was being replaced.
Barry testified that when she came outside, Bosby headed for the front of the truck. As she approached, Jones quickly pushed the lawn mower onto the truck and got into the passenger side. Barry said the truck was not running when she first went outside. She testified the drivers side door was open and she stood in the doorway to tell them they had the wrong lawn mower. Barry saw Bosby messing with the steering column and she realized they were stealing the lawn mowers. She heard Bosby say, “Damn, we’re in trouble now.”
While Bosby leaned forward to start the truck, Barry said Jones hit her in the face. She fell to the ground and Jones came out of the truck, landed on top of her, and tried to hit her in the face, but she blocked his punches with her arm. Bosby finally started the truck again and Jones jumped back into the truck. The two headed down the driveway towards the street. Barry said she grabbed her child’s roller blade skate and threw it at the truck, and her son shot paint balls at the truck. Barxy immediately called 911.
The jury convicted Bosby of two crimes involving Barry’s lawn mower—aggravated robbery and burglary of a building that is not a dwelling, and three crimes involving the stolen truck—automobile burglary, theft, and criminal damage to property.
Bosby argues the evidence was insufficient to support a conviction for aggravated robbery, as they allegedly did not use force to take the property. He contends the force was used after the taking was completed and that a robbery was not committed.
Our standard of review is to interpret the aggravated robbery statute, K.S.A. 21-3427, and determine if the facts in this case constitute that crime as a matter of law. We review the facts in the light most favorable to the prosecution. An appellate court’s review of conclusions of law is unlimited, similar to our review when interpreting a statute. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
Bosby contends the evidence shows he obtained peaceable possession of Barry’s lawn mower and he used no force during the theft. He contends any force used by Jones was subsequent to taking of the property and used only to effectuate the escape. At most, Bosby argues his acts constituted the separate offense of theft and a charge of aggravated battery against Jones. Thus, he requests we reverse the aggravated robbery conviction.
The State argues the taking of the lawn mowers from Barry’s presence was.not complete until after force was applied by Jones. The State maintains the physical blows to Barry constituted the force the defendants decided' to use in order to complete their taking of the lawn mowers from Barry’s presence.
The issue herein involves the difference between robbery and theft. The parties support their analysis from the same general set of cases.
Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm on any person in the course of the robbery. K.S.A. 21-3427. Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person. K.S.A. 21-3426. To establish the charge of robbery, the State must prove there was a taking of the property from the person or presence of the victim and that such taking was either by threat of bodily harm or by force.
The court in State v. Miller, 53 Kan. 324, 36 Pac. 751 (1894), considered whether the force required in a robbery must precede the taking of the property. The facts were that Miller went into a laundry to pick up a shirt. When the proprietor opened the cash drawer, Miller grabbed some money. The proprietor caught Miller’s hand while it was still in the drawer and released it only when Miller cut the proprietor’s hand with a knife. Miller ran for the door but was caught by the victim, who released his hold only after being stabbed in the abdomen.
On appeal, Miller argued that the violence was merely for the purpose of breaking away from the victim and that, if he took the money, he had it in his possession before any violence occurred. The Miller court disagreed and adopted the general rule that to constitute the crime of robbery, it is sufficient that the violence to the person and the taking be contemporaneous. Under the facts, the court concluded Miller had not obtained complete possession of the money before using the violence on the proprietor. The court noted there was evidence Miller cut the victim’s hand in order to remove his own hand containing the money from the cash drawer. The court stated:
“Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well be doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence.” 53 Kan. at 328.
In State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976), two women were sitting in a booth in a tavern. Lighting was poor by virtue of a power outage. While one of the women was gone, Aldershof went to the booth and grabbed both the absent woman’s purse from the table and the other woman’s purse from her lap. The woman at the booth pursued Aldershof to the parking lot and grabbed his shirt. He turned, hit her in the eye, and fled. He was convicted of robbery.
On appeal, Aldershof argued that the evidence showed no force or threat during the taking of the purses and that the purses were taken by stealth; therefore, the crime was a theft, not a robbery. The State argued the crime was robbery as the taking was still in progress when the victim was hit in the parking lot. The Aldershof court discussed the law of theft and robbery:
“We are inclined to follow the general rule recognized in State v. Miller, supra, that to constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property and robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape. We believe that the test should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant. This must of necessity be determined from the factual circumstances presented in the particular case before the court.” 220 Kan. at 803.
In Aldershof, the taking of the purses had been completed when the thief snatched the purses and left the premises of the tavern. Any violence occurring after the thief left the tavern with the purses under his control “could not convert the theft into a robbery, although it may well have been the basis for a charge of battery under K.S.A. 21-3412.” 220 Kan. at 804.
In State v. Long, 234 Kan. 580, 675 P.2d 832 (1984), Long had entered a sale building where Wolf sold milk. The building was open to the public with customers helping themselves to the milk in the display case and dropping payment into a locked, slotted money box mounted on a wall. Wolf was not in the sales room but saw Long drive up and park. She went into the sale building to tell him more milk would be available soon. When Wolf entered the room, she observed Long crouched in front of the money box, which had been pried open. Long had his hands in his pockets and Wolf observed a dollar bill on the floor beneath the money box. Wolf positioned herself in the doorway to prevent Long from leaving. She asked Long twice what he was doing, but he made no response. Long walked toward Wolf, shoved her arm out of the way, forced himself by her, and drove off in his car. Long was convicted of robbery.
On appeal, Long argued that the force used against Wolf occurred after the taking to effect his escape and therefore was not sufficient to constitute a taking by force as required by the robbery statute. We agreed in State v. Long, 8 Kan. App. 2d 733, 667 P.2d 890 (1983), but the Kansas Supreme Court reversed. Applying the Miller rule, the Long court held the ultimate question was whether the taking of the money from the money box was completed prior to the appellant’s exit from the sale building. Acknowledging that “[n]o established set of guidelines exists which can be readily applied for a quick and easy answer to this question,” the court stated:
“Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed. Some of these cases imply a taking is not complete until the property has been removed from the premises of the owner, whereas others indicate the taking is accomplished at the moment the thief, with the intent to steal, removes the property from its customary location.” 234 Kan. at 583.
After reviewing some cases involving issues of whether the appropriate crime was theft or attempted theft, the Long court stated:
“As these cases demonstrate, inherent difficulties exist in determining when possession attaches to constitute a completed taking for a robbery conviction under K.S.A. 21-3426. Commission of the crime of robbery is complete when the robber takes possession of the property, as the element of asportation is no longer required to complete the crimes of theft or robbery. See, e.g., State v. Knowles, 209 Kan. at 678; State v. Aldershof, 220 Kan. at 804. The defendant takes possession of the property of another when he exercises dominion and control over the property. 4 Wharton’s Criminal Law 472 (14th ed. 1981). Earlier cases have recognized the term ‘possession,’ as it relates to theft or possession of stolen property, imports more than an innocent handling of property; the term denotes control, or the right to exercise control and dominion, over the property. State v. Knowles, 209 Kan. at 678; State v. Brown, 203 Kan. 884, 885-86, 457 P.2d 130 (1969). See also State v. Porter, 201 Kan. 778, 781, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969); State v. Phinis, 199 Kan. 472, 430 P.2d 251, [overruled on other grounds State v. Milow, 199 Kan. 576, 433 P.2d 538] (1967). 52A C.J.S., Larceny 6, states:
‘[I]n order to constitute a taking the prospective thief must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.
‘If the possession of the would-be taker is imperfect in any degree, or if his control of the thing desired is qualified by any circumstance, however slight, the taking is incomplete and die act is only an attempt.’ ” 234 Kan. at 585.
Upon application of these rules and cases to the facts, the Long court concluded that “a thief does not obtain the complete, independent and absolute possession and control of money or property adverse to the. rights of the owner where the taking is immediately resisted by the owner before the thief can remove it from the premises or from the owner s presence.” 234 Kan. at 586. The court concluded Long did not obtain actual possession of the money and the taking was not completed until he by force overcame Wolf s efforts to stop him from making his exit from the sale room. 234 Kan. at 586-87.
.In State v. Dean, 250 Kan. 257,824 P.2d 978 (1992), Dean drove to a full-service service station and asked the attendant to pump gas into his vehicle. When the attendant asked for payment, Dean made a gesture under his coat jacket which made the attendant believe Dean had a gun. The attendant jumped back and Dean drove away. The aggravated robbery charge was dismissed before trial. On appeal, the court considered whether Dean’s ordering the pumping of gasoline prior to payment and immediately leaving the presence of the owner without payment by the use of threat or force constituted robbery or merely theft. The Dean court applied the following rule:
“To constitute the crime of robbery, it is necessary that the violence to the owner of property must either precede or be contemporaneous with the taking of the property. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape.” 250 Kan. 257, Syl. ¶ 2.
After reviewing Miller, Aldershof, and Long, the Dean court concluded that Dean had not left the premises or even attempted to drive away before he used force. He made his threat to prevent resistance to the taking and not as a means of escape and, therefore, the facts supported the charge of aggravated robbery. The dismissal was reversed, and the case was remanded for further proceedings.
Commission of robbery is complete when the robber takes possession of property; the element of asportation is not required to complete theft or robbery. See K.S.A. 21-3426; State v. Valdez, 266 Kan. 774, 785, 977 P.2d 242 (1999). The test of whether a robbery has occurred is whether the taking of the property has been completed at the time the force or threat is used by the defendant. Aldershof, 220 Kan. at 803. The court in Valdez stated: “In order to constitute a taking, the prospective robber must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.” 266 Kan. at 786.
As demonstrated by the discussion above, cases of this nature are very fact sensitive. “The test is whether or not the taking of the property has been completed at the time the force or threat is used by the defendant, which must be determined from the factual circumstances in each case.” Aldershof, 220 Kan. 798, Syl. ¶ 2.
In the present case, under whichever factual scenario is believed, a robbery was committed. Bosby and Jones had not made good their escape from Barry’s property when she either attacked them or they struck her preemptively. They used force to complete their taking possession of the property and removing it from the owner’s presence and inflicted bodily harm in the process. This constituted an aggravated robbery. See Annot., 93 A.L.R.3d 643, 647.
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Lewis, J.:
Plaintiff Diana Hibbert instituted this medical malpractice action against defendant Dr. Edgar C. Ransdell, M.D. After a jury trial, a verdict was entered in favor of defendant. Plaintiff appeals.
In early 1994, plaintiff was given a general physical exam by defendant. During that exam, defendant found a 6.9 centimeter cyst on plaintiffs right ovary. Defendant apparently advised plaintiff that in his opinion the ovary needed to be removed, and he told plaintiff that he would perform a laparoscopy to look at the cyst and see if it was abnormal; if there was an abnormality, defendant advised plaintiff he would remove the cyst.
Prior to the surgery, plaintiff met with defendant’s nurse, who discussed possible complications of the surgery with plaintiff and showed plaintiff a video about the surgery. After discussing the matter with defendant’s nurse, plaintiff signed a consent for surgery. During their conversation, they did not discuss whether the surgery was necessary since defendant would malee that decision after the laparoscopy was completed.
The laparoscopy was performed; the cyst, however, was hidden from defendant’s view by adhesions. As a result, defendant performed a laparotomy and removed the cyst.
The aftereffects of the surgery have been devastating upon plaintiff. She initially developed a hematoma in the abdominal wall, but it was resolved without complication. However, since the surgery, plaintiff has experienced problems with voiding disfunction, blad- . der spasms, and incontinence. At times, the problems are so severe that plaintiff has been required to self-catheterize herself. This ere ates more problems because plaintiff has a recessed urethra and each time the self-catheterization is done, bacteria is introduced into the bladder.
Since the surgery was performed, plaintiff has suffered from urinaiy tract infections, which have been so frequent that she has been on antibiotics consistently since 1994. As a result of being on the antibiotics continuously, plaintiff has suffered from antibiotic induced colitis, diarrhea, high fever, continuous vaginal and oral yeast infections, loss of enamel on her teeth, and loss of hair. Eventually, plaintiff had a “Interstim” implanted, which sends electrical impulses to help with bladder control and to reduce pain. It is estimated she will need an operation to replace the battery in the device every 5 to 8 years.
Plaintiff contends that she suffers from these problems because of the negligence of defendant in treating her and brought this action seeking to recover her damages.
As part of her direct evidence, plaintiff produced an expert witness who testified drat cysts smaller than 10 centimeters in ovulating women should be followed for 4 to 8 weeks to see if regression occurs. Most cysts, the expert testified, will resolve themselves spontaneously in 2 to 3 weeks. In plaintiff s case, defendant made no effort to determine whether this cyst would resolve itself. It appears that defendant deviated from the standard of care by not doing a follow-up exam before the surgery. In addition, plaintiffs experts testified that if the cyst did not resolve itself, then pituitary suppression by way of oral contraceptives should be considered prior to surgery. Again, defendant did not consider this option.
Defendant indicated he was uncomfortable simply waiting to see if tire cyst would resolve itself because plaintiff was consistently running a fever of 101 degrees at night and because there was some fluid around the cyst. Defendant had real concerns that the cyst might become infected and made a decision to remove it without considering other options. At some point after the trial had begun and after most of the evidence had been presented, plaintiff moved the court to amend the pretrial order and allow her to submit an issue of lack of informed consent to the jury. The trial court denied the motion. As noted above, the jury ultimately found no fault on the part of defendant, and judgment was entered in favor of defendant.
After plaintiffs motion for a new trial was denied, this appeal was filed.
PIK CIV. 3D 123.11
In this case, the trial court gave the jury the instruction set forth in PIK Civ. 3d 123.11. This was instruction No. 12. It is plaintiff s position that the trial court erred in giving this instruction. Our standard of review of jury instructions was recently stated in Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000):
“Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction maybe disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. [Citation omitted.]”
Instruction No. 12, which plaintiff insists was erroneously given, was taken directly from PIK 3d Civil 123.11 and stated:
“Where, under the usual practice of the profession of the defendant, Edgar C. Ransdell, M.D., different courses of treatment are available which might reasonably be used, the specialist has a right to use his best judgment in the selection of the choice of treatment.
“However, the selection must be consistent with the skill and care which other specialists practicing in the same field of expertise would use in similar circumstances.”
The Notes on Use section on this instruction states that it should be given where there is a dispute as to which of two or more courses is to be pursued in administering treatment. The Kansas Supreme Court has strongly recommended the use of the instructions set forth in PIK Civ.
“ ‘The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.’ ” State v. Dias, 263 Kan. 331, 335, 949 P.2d 1093 (1997) (quoting State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 727 [1997]).
Plaintiff is particularly unhappy with the language in instruction No. 12, which told the jury: “[T]he specialist has the right to use his best judgment in the selection of the choice of treatment.” It is plaintiff s position that this introduces a subjective standard element into determining a physician’s negligence. In Kansas, we use an objective standard to determine physician negligence.
Plaintiff argues the phrase “best judgment” as recommended by the PIK authors in instruction No. 12 is quite subjective and could easily have confused the jury into thinking that the standard of care depended upon defendant’s inner thoughts rather than his conduct. In other words, plaintiff is concerned the jury might get the impression that all that is required of a physician is that he or she use his or her “best judgment” in dealing with a patient. Plaintiff reasons that if a jury were to reach that understanding of the instruction, it could find defendant not to be responsible even if he was negligent so long as the jury believed that he had done the best he could.
We understand plaintiff s concerns; however, we point out that the instruction in question advises the jury that a specialist not only has to use his or her best judgment in the selection of choice of treatment but that the selection must be consistent with the skill and care which other specialists practicing in the same field of expertise would have used in similar circumstances. If the instruction is read and considered as written, we do not see it as being particularly misleading.
We note, however, that many jurisdictions have rejected the best judgment language when used in statutes and rules in defining the standard of care in medical malpractice actions. We note the following decisions: See Pearce v. Cornerstone Clinic for Women, 938 F.2d 855, 857 (8th Cir. 1991) (statutory definition creates an objective standard; adding the language “ ‘using his best judgment’ ” inserted subjective considerations into the objective standard and trial court improperly instructed the jury on Arkansas law); Hira hara vs. Tanaka, 87 Hawaii 460, 465, 959 P.2d 830 (1998) (relevant standard of care is objective; jmy must focus on whether physician breached that standard of care; informing jury that physician not negligent for utilizing best judgment to choose among acceptable alternatives is unnecessary); Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370-71, 892 P.2d 588 (1995) (agreeing with growing number of courts rejecting the error-in-judgment instruction; may confuse jurors to focus on health care provider’s subjective intentions and judgments, rather than whether provider’s conduct conformed to an objective standard of care); and Rooney v. Medical Center Hospital of Vt., Inc., 162 Vt. 513, 520, 649 A. 2d 756 (1994) (instruction using the phrase “best judgment” improperly permitted jury to conclude a physician who lacked the requisite skill or knowledge was not liable provided “she used her best judgment and reasonable care in the exercise of whatever skill or knowledge she did possess, however limited”). There are other cases and articles to the same effect which have been cited in plaintiff s brief.
Defendant points out the instruction is recommended by the authors of the PIK instruction manual, which, in turn, is highly recommended for use by the Kansas Supreme Court. He points out that this case fits squarely within the PIK committee’s recommendation for use of the instruction.
Defendant cites to us cases from other jurisdictions which have approved the “best judgment” language. See Sisson by and through Allen vs. Elkins, 801 P.2d 722, 727 (Okla. 1990) (standard of care required physician to exercise the care, skill, and learning ordinarily exercised by other physicians under similar circumstances; allowing physician to exercise his best judgment within these boundaries was not contrary to statute); Fragale v. Brigham, 741 A.2d 788, 790-91 (Pa. Super. 1999), appeal denied 563 Pa. 629, 758 A.2d 662 (2000) (“best judgment” and/or “mere error of judgment” instructions were not erroneous as reflecting outmoded and abrogated language).
As we pointed out earlier, if the instruction is carefully read, it does not permit a juiy to absolve a defendant who uses his or her best judgment when that best judgment is not consistent with the special degree of skill and knowledge possessed by other specialists in the field. Further, the trial court gave instruction No. 13 to the jury, based on PIK Civ. 3d 123.12, that directed it to apply an objective standard:
“A physician who holds himself out to be a specialist in a particular field of medicine has a duty to use his skill and knowledge as a specialist in a manner consistent with the special degree of skill and knowledge ordinarily possessed by other specialists in the same field of expertise at the time of the diagnosis and treatment. A violation of this duty is negligence.”
If PIK Civ. 3d 123.11 is given to a jury, it is best to also instruct the jury on the objective standard applied in determining physician negligence; an example of such an instruction can be found in PIK Civ. 3d 123.12.
We ultimately conclude that while plaintiff s argument is not entirely without merit, the use of instruction No. 12 in this case does not amount to reversible error. As we review the instructions, they were substantially correct, and we do not see how the jury could reasonably have been misled by the instructions if they were carefully read and considered. In addition, instructions Nos. 12 and 13 were based directly on PIK; our Supreme Court has strongly recommended the use of those instructions and appears to have accepted the best judgment language as a proper statement of the physician’s duties in its decision in Smith v. Welch, 265 Kan. 868, 881-82, 967 P.2d 727 (1998).
In the final analysis, we are duty bound to apply the settled law in this state. As we see the settled íaw in this state, it is to the effect that PIK instructions are strongly recommended and should be given. In addition, we conclude that our Supreme Court has approved the best judgment language as a proper statement of a physician’s duties in general. We affirm the decision of the trial court in the giving of instruction No. 12.
AMENDMENT OF PRETRIAL ORDER
At a point in the trial when only defendant’s expert was left to testify, and at a point when the parties were reviewing jury instructions, plaintiff moved to amend the pretrial order to allow her to argue to the jury a cause of action based upon a failure of informed consent. The trial court denied this motion, and plaintiff argues on appeal that the denial was error. The granting or denying of a motion to amend is generally left to the discretion of the trial court. Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 420, 6 P.3d 871 (1999).
We see no abuse of discretion by the trial court in denying the motion. As defendant pointed out to the trial court, the pretrial order did not include an issue on failure of informed consent. Further, the case had been tried largely on the issue of negligence, and the informed consent issue was not raised until the trial was nearly over and after defendant had already testified. In general, a pretrial order should supersede pleadings and control the future course of the action unless modified to prevent injustice.
Plaintiff takes the position that the issue of implied consent was tried by the express or implied consent of the parties and should be treated as if it had been raised in the pleadings in accordance with K.S.A. 2000 Supp. 60-215(b). If this were true, certainly the trial court would have been within its discretion in permitting plaintiffs amendment.
Plaintiff argues this issue was tried by implied consent because substantial evidence was introduced without objection that defendant represented to her that surgery was the only way to proceed and substantial evidence was introduced that a nonsurgical option was available to see if the cyst regressed and was absorbed into the body. This court has indicated that a party’s failure to object to evidence tending to prove an issue not alleged in the pleadings constitutes implied consent to trying that issue. Kiser v. Gilmore, 2 Kan. App. 2d 683, Syl. ¶ 3, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979).
In the final analysis, our decision on this issue need not be based upon whether the issue of informed consent was tried by the implied consent of the parties. The evidence as to whether it was tried by implied consent is murky and somewhat unclear. The fact is, K.S.A. 60-215(b) does not require a trial court to permit the amendment to a pretrial order even if the issue was tried by the implied consent of the parties. The statute only says that a trial court “may” allow an amendment under such circumstances, not that it “must.”
The final decision is entrusted to the discretion of the trial court. The statute provides that when issues not raised in the pleadings are tried by implied consent, “the pleadings will be regarded in support of the judgment entered, as having been admitted to conform to the proof providing no injustice or disadvantage is thereby occasioned to the opposing party.” (Emphasis added.) Speer v. City of Dodge City, 6 Kan. App. 2d 798, 801-02, 636 P.2d 178 (1981).
In this case, we conclude there clearly would have been an injustice or disadvantage to the defendant if the pleadings had been amended to add a new cause of action after defendant had testified and put on most of his evidence. Accordingly, we hold the trial court did not abuse its discretion in not allowing plaintiff s amendment under the circumstances when the addition of a new legal theory would have prejudiced defendant. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, Syl. ¶ 4, 815 P.2d 72 (1991); Herrell v. Maddux, 217 Kan. 192, 194-95, 535 P.2d 935 (1975).
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Green, J.:
Reebles, Inc., (Reebles) appeals from the trial court’s judgment granting summary judgment to Bank of America (Bank) in Reebles’ breach of fiduciary duty and tortious interference with a contractual relationship claims. On appeal, Reebles contends that because genuine issues of material fact remained in issue, the trial court erred in granting the Bank’s motion for summary judgment. We agree and reverse and remand for trial.
Reebles leased certain commercial real estate to Nautilus of Emporia, Inc. Kristina Brown, owner of Nautilus, operated an exercise center from the property. Brown personally guaranteed the lease for Nautilus.
The Bank made a loan to Brown, and Brown pledged the exercise equipment as collateral for the loan. Brown executed a promissory note and security agreement granting the Bank a security interest in all of her inventory, accounts, equipment, general intangibles, and fixtures. The security agreement provided that “[n]o alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or agreement.” The Bank filed a financing statement perfecting its security interest; During the term of the lease, Nautilus failed to pay Reebles rent totaling $6,400.
In December of 1998, Brown and Wade Criqui entered into a written agreement requiring Criqui to purchase Brown’s exercise equipment and other assets for $85,000 if certain conditions were met. One of the conditions of sale required that Brown obtain the consent of Reebles to the assignment of the Nautilus’ lease to Criqui. Another condition of sale required that “[a]ll accounts payable incurred prior to closing” would be paid from the sale proceeds of $85,000 by the closing agent. A third condition of sale required that the exercise equipment be “free and clear of all” hens. Closing of the transaction was to be completed by Moon Abstract Company.
While the parties were negotiating the sale, Criqui’s business partner, Carla Dorcas, contacted Russell Bonitatibus, a vice president with the Bank, regarding the sale of the exercise equipment and the payment of back rent to Reebles from the sale proceeds. The parties dispute what Bonitatibus said regarding payment of the back rent. Bonitatibus testified that he referred Dorcas to Melissa Byington, also a vice president with the Bank. Dorcas offered an affidavit in opposition to the Bank’s motion for summary judg ment, stating that Bonitatibus told her the back rent would be paid from the proceeds of the sale.
The parties also dispute what Byington said about payment of the back rent from the proceeds. Byington testified that she did not tell Dorcas that the back rent would be paid from the proceeds. Dorcas, on the other hand, offered an affidavit stating that Byington indicated the back rent would be paid from the proceeds of the sale.
According to Dorcas, Byington told her the Bank would close the transaction and would handle the sale in accordance with the contract. Dorcas also testified via affidavit that both Byington and Bonitatibus assured her that the payoff of the back rent would be made to Reebles.
Criqui’s affidavit states that he gave a check in the amount of $85,000 to the Bank instead of Moon Abstract Company because the Bank stated that all deductions would be taken out of the check, including the back rent. Criqui and Dorcas met with Bonitatibus at the bank on December 28, 1998. Both Criqui and Dorcas told Bonitatibus the contract provided that they were to close at Moon Abstract Company. According to Criqui, Bonitatibus told them it was unnecessary for Moon Abstract Company to close the transaction.
Based on the alleged representations of Bonitatibus and having been reassured that the back rent would be paid, Criqui and Dorcas gave Bonitatibus a check in the amount of $85,000 on December 28, 1998, expecting the Bank to deduct $6,400 to pay Reebles the back rent. The purchase price of Brown’s exercise equipment and other assets was less than the balance due on her note. The Bank applied the whole $85,000 to the outstanding balance on Brown’s note. Accordingly, the back rent was not deducted from the purchase price or paid to Reebles.
Reebles sued the Bank for breach of fiduciary duty and tortious interference with a contractual relationship. The Bank moved for summaiy judgment, arguing that Reebles could not recover on those claims as a matter of law. Reebles also moved for summary judgment, seeking judgment as a matter of law on its claims against the Bank. Jim Rathke of Moon Abstract Company testified by af fidavit that had the transaction been presented to him for closing, it would not have been closed “[i]f the [Bank] would not release the lien in order to provide a transfer of the equipment free and clear of all encumbrances.”
The trial court determined that the Bank was entitled to summary judgment because the Bank’s security agreement gave it priority to the proceeds and because the security agreement was not modified in writing. The trial court further concluded Reebles offered no competent evidence that the damages it claimed were caused by the Bank’s actions.
On appeal, Reebles argues that the trial court erred in granting summary judgment in favor of the Bank.
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c).” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
“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.” Bi-State Dev. Co., Inc. v. Shafer, & Kline & Warren Inc., 26 Kan. App. 2d 515, 517, 990 P.2d 159 (1999).
Reebles first contends that the trial court erred in granting the Bank summaiy judgment on its claim for breach of fiduciary duty. Reebles alleges that the Bank breached a fiduciary duty it owed as the closing agent for the purchase agreement for the sale of the exercise equipment. The Bank asserts that it did not breach any fiduciary duty because it had a perfected security interest in the exercise equipment and because it was entitled to all the proceeds from the sale.
A fiduciary relationship exists where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 261, 553 P.2d 254 (1976). Whether a fiduciaiy relationship exists depends on the facts and circumstances of each individual case. The Kansas Supreme Court has refused for that reason to give an exact definition to fiduciaiy relationships. See Denison State Bank v. Madeira, 230 Kan. 684, Syl. ¶ 2, 640 P.2d 1235, modified on reh. 230 Kan. 815, 640 P.2d 1235 (1982).
Generally, there are two types of fiduciary relationships: (1) those specifically created by contract or by formal legal proceedings and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions. The determination of the existence of a fiduciary relationship in the second category is more difficult to determine. Denison State Bank, 230 Kan. at 691.
Reebles alleges the existence of a fiduciaiy duty based on the following: (1) that Reebles was a third-party beneficiaiy of the contract between Brown and Criqui; (2) that the Bank acted as a closing agent for this transaction; and (3) that as the closing agent, the Bank owed a fiduciaiy duty to Brown, Criqui, and Reebles to close the sale, if possible, according to the terms of the contract between Brown and Criqui.
First, we must determine if Reebles was a third-party beneficiary of the contract between Brown and Criqui. Although the Bank disputes the existence of a valid third-party beneficiary contract, Reebles certainly could be construed as a third-party beneficiaiy to the contract since the contract provided for payment of “[a]ll accounts payable incurred prior to closing” and authorized the closing agent to pay those accounts “from the proceeds of sale.” It is undisputed that Brown owed back rent totalling $6,400 to Reebles prior to closing of the sale. In fact, Reebles could be described as an intended beneficiaiy because it possessed enforceable rights under the contract entered into between Brown and Criqui. Brown owed Reebles back rent totalling $6,400. Brown agreed to sell the exercise equipment to Criqui for $85,000 for which Criqui promised, orally and in writing, to pay Reebles $6,400 from the sale proceeds in discharge of Brown’s debt to Reebles if the sale was completed. As a result, Reebles would be an intended beneficiary of Criqui’s promise and would have an enforceable claim against Criqui for $6,400. See Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 389, 736 P.2d 930 (1987).
Second, the evidence indicates that the Bank acted as the closing agent for the contract between Brown and Criqui. Dorcas testified that Byington told her that the Bank would close the sale in accordance with the sales contract. Third, the evidence further indicates that the Bank failed to close the sale according to the terms of the contract between Brown and Criqui.
As the closing agent, the Bank failed to withhold sufficient funds from the sale proceeds to pay the accounts payable. In its desire to gain the whole $85,000 for itself, the Bank put both Brown and Criqui in a precarious situation. For example, Brown would have remained liable to Reebles for the back rent under her personal guarantee for the Nautilus’ lease. As to Criqui, the Bank failed to insure that Criqui’s condition of being allowed to assume the Nautilus lease had been fulfilled before accepting Criqui and Dorcas’ check for $85,000 on December 28,1998. Under the sales contract, Criqui expressly made this a condition precedent to his promise to purchase the exercise equipment. Although Criqui and Dorcas never assumed the Nautilus lease, they did not enter into a lease agreement with Reebles until December 29, 1998, after assuring Reebles that its back rent would be paid from the sale proceeds. As a result, when Criqui and Dorcas paid the Bank the $85,000 on December 28,1998, their condition precedent of obtaining a lease agreement with Reebles had not been fulfilled.
Finally, the Bank’s action extinguished Reebles’ expectancy of having tbe back rent paid from the sale proceeds as contemplated by the contract between Brown and Criqui.
All inferences from the evidence must be given to the nonmoving party when deciding a motion for summaiy judgment. See Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995). Because the material facts giving rise to the alleged fiduciary relationship are controverted, the issue of whether the Bank breached a fiduciary duty owed to Reebles was not appropriate for summary judgment.
Reebles further argues that the trial court erred in granting summary judgment on the issue of tortious interference with a con tractual relationship. Kansas has long recognized that a party who, without justification, induces or causes a breach of contract will be answerable for damages caused thereby. Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986). The elements essential to recovery for tortious interference with a contract are: (1) the contract; (2) the wrongdoer s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom. Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 169, 872 P.2d 252 (1994). The tort of interference with contract is aimed at preserving existing contracts. Turner, 240 Kan. at 12.
The Bank argues that although it may have interfered with the sales contract, it was justified in doing so because it was protecting its security interest. It is recognized that not all interference with contractual relationships is tortious. A person may be privileged or justified to interfere with contractual relations in certain situations. May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 424-25, 370 P.2d 390 (1962).
“ ‘Justification is the most common affirmative defense to an action for interference. The term ‘justification’ has been said not to be susceptible of any precise definition. It is employed to denote the presence of exceptional circumstances which show that no tort has been in fact committed and to connote lawful excuse which excludes actual or legal malice. It has been suggested that, rather than to express this defense to interference in terms of justification, it might be more accurately stated to be a matter of privilege; that is, the defendant may show that interference, although it occurred, is privileged by reason of the interests furthered by his conduct.’ ” Turner, 240 Kan. at 12-13 (quoting 45 Am. Jur. 2d, Interference § 27).
The Turner court also noted that “[generally, a. circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.” 240 Kan. at 13 (quoting 45 Am. Jur. 2d, Interference § 27). See PIK Civ. 3d 124.93 (1997 Supp.) (“Justification exists when the defendant interfered in the exercise of a right equal to or superior to that of the plaintiff and used fair means and good faith for some lawful interest or purpose.”).
In determining whether a defendant’s conduct in interfering with a contract is improper, the following factors should be considered: (1) the nature of the defendant’s conduct; (2) the defendant’s motive; (3) the interests of the other with which the defendant’s conduct interferes; (4) the interests sought to be advanced by the defendant; (5) the social interests in protecting the freedom of action of the defendant and the contractual interests of the other; (6) the proximity or remoteness of the defendant’s conduct to the interference; and (7) tire relations between the parties. Turner, 240 Kan. at 14 (quoting Restatement [Second] of Torts § 767).
The trial court disposed of this issue by determining that the Bank’s security interest in the exercise equipment required that the security agreement be modified in writing and that the sales agreement attempted to change the terms of the security agreement by allowing for distribution of the proceeds out of priority. The rationale, however, misconstrues the purpose of the provision in the sales agreement allowing for payment of back rent from proceeds of the sale. This provision does not attempt to modify the security agreement but instead simply affords the parties an opportunity to modify the security agreement should the Bank agree to do so.
Whether the Bank was justified in allegedly interfering with the sales agreement by allowing the parties to close the sale at the Bank rather than at Moon Abstract Company involves controverted facts. First, the parties dispute whether the outcome would have been different had the contract been presented to Moon Abstract Company for closing. The Bank alleges that there is no dispute as to how the contract would have been handled at Moon Abstract Company, suggesting that the transaction would not have been completed.
It is true that procurement of the Bank to release its hen on the exercise equipment was a condition precedent to the duty of Criqui and Dorcas to purchase the exercise equipment. Moreover, if the Bank had refused to release its hen on the exercise equipment, the sales contract would not have been completed. However, Reebles presented sufficient facts that, in themselves or by inference, supported a finding that except for the Bank’s tortious interference with Reebles’ business relationship with Brown, Criqui, and Dorcas, the Bank would have accepted $78,600 ($85,000-$6,400 in back rent) to release its hen on the equipment. Moreover, the Bank’s actions not only interfered with the fulfillment of the sales contract but also interfered with the parties’ right to conduct negotiations which might have culminated in the fulfillment of the contract.
Viewed in the light most favorable to Reebles, a reasonable juror could find that the Bank had historically participated in short sales. A reasonable juror could further find that the Bank became interested in Criqui and Dorcas’ offer of $85,000 and, but for the Bank’s representation that it would close the transaction according to the terms of the sales contract, the sales contract would have been fulfilled. Finally, a reasonable juror could also find that the Bank’s representation was untrue and made with the intention of eliminating Reebles from the transaction to the Bank’s financial gain. As a result, because genuine issues of material fact exist, we find that the trial court erred in granting summary judgment on Reebles’ claim for tortious interference with a contractual relationship.
Finally, Reebles argues that the trial court should not have granted summary judgment on the issue of estoppel. Specifically, Reebles argues that the Bank is hable for payment of the back rent because it failed to inform Reebles that it did not intend to make the payment when it closed the transaction. The Bank, however, asserts that Reebles failed to present this argument to the trial court and, as a result, it cannot be raised for the first time on appeal. Issues not raised before the trial court cannot be raised on appeal. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
In its petition, Reebles merely raised the claims of breach of fiduciary duty and tortious interference with contract. Because Reebles did not raise estoppel as a cause of action, the issue was not properly presented to the trial court for consideration and may not be raised for the first time on appeal.
This is an unusual case. Normally a properly perfected secured claim such as the Bank’s will triumph. Here, the evidence regarding the Bank’s reassuring statement and its intermeddling in the closing provide plaintiff with additional causes of action that would not exist in the ordinary commercial transaction.
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-110,
15,
-20,
-98,
-119,
-1,
23,
48,
112,
-50,
-128,
92,
86,
123,
-109,
-50,
-13
] |
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